Delhi District Court
State vs . Raj Kumar, on 9 January, 2013
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL
SESSIONS JUDGE; (EAST) FTC, E-COURT :
KARKARDOOMA COURTS: DELHI.
SESSIONS CASE No. 87/11
FIR No. 419/10
U/S: 186/333 IPC & 3/181 M.V. Act
PS: Mandawali
State Vs. Raj Kumar,
S/o Late Sh. Sat Prakash,
R/o H. No. 18/398, Block No.
18, Trilok Puri, East Delhi.
Date of Institution : 26.09.2011
Judgment reserved on : 04.01.2013
Delivered on : 09.01.2013
JUDGMENT
1. Prosecution case, in brief, is that on 03.08.2010, traffic Constable Mukesh Kumar was on duty at Noida Mor Flyover, NH- 24 between 8.00 am to 8.00 pm. At about 4.00 pm, a motorcycle bearing No. DL7S-AZ-6037 Bajaj Discover driven by accused Raj Kumar without helmet with a pillion rider sitting on the motorcycle FIR No. 419/10 Page 1 of 11 came from the side of Nizamuddin and jumped the red light. Constable Mukesh Kumar tried to get the motorcycle stopped but accused ran over the motorcycle upon him due to which he received injuries on his face, hand and feet. Accused also fell down and received injuries. Accused and the injured Constable Mukesh Kumar were rushed to the hospital. FIR was registered under Section 279/338 IPC. Accused was arrested. He could not produce his driving license. As per MLC result, Constable Mukesh Kumar received grievous injuries on his person. Sections 186/333 IPC were invoked in place of Section 279/338 IPC. Complaint under Section 195 Cr. PC was obtained from ACP and on completion of investigation, charge sheet was filed under Section 186/333 IPC and under Section 3/181 M.V. Act.
2. After compliance of Section 207 Cr. PC, the case was committed to Sessions Court. Charge under Section 186/333 IPC and under Section 3/181 M.V. Act was framed against the accused by my learned predecessor to which he pleaded not guilty.
3. In order to prove its case, prosecution examined 13 witnesses. PW-1 is ACP Raj Kumar from traffic police. He had filed the complaint under Section 195 Cr. PC Exbt. PW-1/A. PW-2 is HC Rampal Singh, Duty Officer. He had FIR No. 419/10 Page 2 of 11 recorded DD No. 26-A and the FIR.
PW-3 is Tesleemuddin Siddiqui. He had conducted the mechanical inspection of the motorcycle. His report is Exbt. PW-3/ A. PW-4 is HC Iqbal Hussain from Kalyan Puri traffic circle. He stated that on 03.08.2010 at about 4.00 pm, he and Constable Mukesh were performing duty under Akshardham Flyover, NH-24 near Noida turning and that two boys without helmet came at a fast speed on motorcycle bearing No. DL7S-AZ-6037 make Bajaj Discover and when Constable Mukesh Kumar tried to stop them by giving signal, they did not stop the motorcycle and hit against Constable Mukesh and in this process, motorcycle driver also fell down on the road with motorcycle. He further stated that Constable Mukesh and motorcycle driver Raj Kumar were sent to LBS Hospital in a TSR with HC Rishi Pal. PW-4 was cross examined by the learned APP on the point of identity of accused and in the said cross examination, he identified the accused.
PW-5 is Dr. O.S. Tomar. He had conducted the medical examination of Constable Mukesh Kumar and accused. He proved their MLCs Exbt. PW-5/A and Exbt. PW-5/B respectively.
PW-6 is Dr. Wasim. On the basis of surgical treatment FIR No. 419/10 Page 3 of 11 record of Constable Mukesh Kumar, he gave the opinion that injuries were grievous in nature.
PW-7 is Constable Naresh Kumar. He had assisted HC Ramesh in the investigation of the case. He had taken the Rukka to the police station for the registration of the FIR.
PW-8 is Constable Data Ram. He had accompanied HC Bhagat Singh to the spot and in his presence HC Bhagat Singh prepared the site plan on the pointing out of HC Iqbal.
PW-9 is Constable Mukesh Kumar. He is the injured. He proved the statement given to the IO in the hospital as Exbt. PW- 9/A. PW-10 is Smt. Munni. She is the registered owner of motorcycle bearing No. DL7S-AZ-6037. Accused is her son. She stated that on 03.08.2010, accused Raj Kumar was driving the said motorcycle. She further stated that on receipt of notice Exbt. PW-10/A from the IO, she had produced the accused at police station whereupon he was arrested.
PW-11 is HC Bhagat Singh. He is the second IO. He had seized the motorcycle from the spot vide memo Exbt. PW-11/A, prepared the site plan Exbt. PW-4/A and got conducted the FIR No. 419/10 Page 4 of 11 mechanical inspection of motorcycle. He served a notice Exbt. PW-10/A to Smt. Munni Devi and seized the RC of the motorcycle from her vide memo Exbt. PW-10/C. He arrested the accused on being produced at police station by Smt. Munni Devi and also served a notice under Section 158 MV Act upon Smt. Munni Devi for production of documents. He collected the duty roaster of the traffic police officials which is Exbt. PW-11/D. PW-12 is HC Rishii Pal. He stated that he was on motorcycle patrolling duty between Mayur Vihar to Nizamuddin for arrangements in connection with Kawarias and that about 4.00 pm while he was performing duty near Akshardham Flyover, two boys came on Bajaj Discover motorcycle bearing No. DL7S-AZ-6037 at a fast speed from the side of Nizamuddin towards Gazi Pur without helmet and jumped the red light. Constable Mukesh, who was on duty at the red light crossing, gave whistle to the motorcyclists to stop but instead they hit the motorcycle to Constable Mukesh due to which he received injuries on his mouth and started bleeding. The motorcyclists also fell down. Then he with the help of HC Iqbal lifted the motorcyclists and rushed Constable Mukesh and accused Raj Kumar in an auto to LBS Hospital.
PW-13 is HC Ramesh. He is the first IO. He had collected the MLCs of Constable Mukesh and accused, recorded FIR No. 419/10 Page 5 of 11 the statement of Constable Mukesh at LBS Hospital and prepared the Rukka Exbt. PW-13/A and sent the same at police station through Constable Naresh for the registration of the FIR.
4. Statement of accused was recorded under Section 313 Cr. PC wherein he stated that his motorcycle had slipped due to which he fell down and motorcycle collided with Constable Mukesh Kumar who was negligently standing in the middle of the road which resulted in injuries to him.
5. Arguments heard from Mohd. Iqrar, Additional PP for the State and Mohd. Hassan, Amicus Curiae for the accused. The learned Amicus Curiae has argued that the case was initially registered under Section 279/338 IPC and the witnesses gave statements to the police that accused was driving the motorcycle at a fast speed and in a rash and negligent manner but later the graver offences were invoked merely because the injured was a Constable in Delhi Police. It is submitted that accused had no intention to cause any obstruction or injuries to the public servant and there are contradictions in the cross examination of witnesses and therefore prosecution has failed to prove its case against the accused beyond doubt. The learned APP has argued that duty roaster proves not only that Constable Mukesh was a public servant and acting in discharge of his official duty but also proves the presence of Constable Mukesh, HC Iqbal Hussan and HC FIR No. 419/10 Page 6 of 11 Rishi Pal at the spot at the time of the incident. It is further submitted that PW-1 has proved the complaint under Secion 195 Cr. PC. The contradictions are minor in nature. It is thus argued that prosecution has been able to prove its case against the accused beyond doubt.
6. PW-11 HC Bhagat Singh had collected the duty roaster Exbt. PW-11/D and as per the said duty roaster, Constable Mukesh Kumar, HC Iqbal Hussain and HC Rishi Pal were performing duty at the spot. No question has been put with regard to the duty roaster to the witnesses. There is no challenge to the fact that Constable Mukesh is a public servant and was performing his official duty. No question has been put to HC Iqbal Hussain and HC Rishi Pal to challenge their testimonies that they were performing duty at the spot. It is therefore proved that injured i.e. Constable Mukesh Kumar is a public servant who was performing duty at the spot on 03.08.2010 at the time of alleged incident. The presence of HC Iqbal Hussain and HC Rishi Pal at the spot is also proved beyond doubt.
7. PW-4 HC Iqbal Hussain could not identify the motorcycle driver in his examination in chief but he categorically stated that the name of the driver of motorcycle was revealed as Raj Kumar. In cross examination by the learned APP, he was able to recollect that accused was the driver of the motorcycle. Accused was not FIR No. 419/10 Page 7 of 11 arrested from the spot or the hospital. PW-11 HC Bhagat Singh served notice under Section 133 M.V. Act to Smt. Munni Devi, mother of the accused who is the registered owner of the motorcycle. In reply to the notice, PW-10 Smt. Munni Devi stated that on 03.08.2010, her son Raj Kumar was driving the motorcycle. In court also she deposed that accused Raj Kumar was driving the motorcycle on 03.08.2010. In fact on receipt of notice, she produced the accused at the police station. There is no cross examination of PW-10, much less any suggestion has been put to her that accused was not driving the motorcycle at the time of occurrence. PW-9 Constable Mukesh Kumar and PW-12 HC Rishi Pal identified the accused in court as the driver of the motorcycle. If the cross examination of the witnesses is seen carefully, it is found that accused has nowhere disputed his identity as the driver of the motorcycle. In fact, he himself has given suggestion to the witnesses that his motorcycle had slipped on the road due to which this incident took place. Accused himself had also received injuries on his person in the incident and his MLC is also proved on the record. Hence, under these circumstances, I am of the opinion that the identity of accused as the driver of the motorcycle is not proved beyond doubt.
8. Section 186 IPC provides punishment to one who voluntarily obstructs any public servant in the discharge of his public functions and Section 333 IPC provides punishment for FIR No. 419/10 Page 8 of 11 causing grievous hurt to such a public servant in the discharge of his duty as such public servant. In order to constitute an offence under Section 186 IPC, obstruction must be willful. It is not enough to prove obstruction by accused to public servant but it must also be proved that the intention was encompassed with some sort of hostility towards such public servant. All the three witnesses of occurrence including PW-9 Constable Mukesh Kumar stated that accused was given signal to stop the bike but he hit the bike to Constable Mukesh Kumar due to which he received injuries. They have denied that motorcycle had slipped on the road due to which accused and Constable Mukesh received injuries. The witnesses have stated that accused was driving the motorcycle at a fast speed and had jumped the red light. In cross examination, PW-4 HC Iqbal Hussain admits having stated before the police that accused could not stop the motorcycle as he was driving it at a fast speed and due to this reason, motorcycle hit with Constable Mukesh. If this version given by PW-4 is accepted, there is no mens-rea on the part of the accused to cause obstruction and injuries to Constable Mukesh in the discharge of his public duty. The obstruction in such circumstances cannot be regarded as willful. PW-9 Constable Mukesh Kumar in cross examination states that earlier he was standing on the roadside but after the accused jumped the red light, he came into middle to stop him. The possibility that being at a fast speed, accused could not control his motorcycle FIR No. 419/10 Page 9 of 11 and the same hit against Constable Mukesh Kumar when he reached in the middle of the road, cannot be ruled out. Merely because the motorcycle of the accused hit against traffic Constable Mukesh who gave him signal to stop, it cannot be inferred that obstruction caused to Constable Mukesh was willful on the part of the accused. It can also not be inferred that accused had the intention to prevent or deter Constable Mukesh from discharging his duty. Hence, I am of the opinion that charges under Section 186 and 333 IPC are not proved against the accused. No evidence has been led to prove that accused was asked to produce his driving license or that he failed to produce the same and therefore offence under Section 3/181 M.V. Act is also not proved.
9. Every person driving a vehicle on the road is under a duty to drive in such a manner so as not to cause imperil to the safety and security of other users of the road. It has come in evidence that accused was driving the motorcycle at a fast speed and jumped the red light and could not stop the same due to which the motorcycle hit against Constable Mukesh causing him injuries. Accused failed to prove his defence that his motorcycle slipped on the road and hit Constable Mukesh Kumar causing him injuries. Thus, it is proved that accused was driving the motorcycle in a rash and negligent manner. PW-6 Dr. Wasim proved that right incisor teeth of Constable Mukesh was half FIR No. 419/10 Page 10 of 11 broken and missing and two central incisors were missing and as per his opinion, the injuries were grievous in nature. Although accused has not been specifically charged for the offence under Section 279/338 IPC, but they being minor than the offence under Section 333 IPC, the accused can be convicted for the commission of offence under Section 279/338 IPC. I therefore hold the accused guilty and convict him under Section 279/338 IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:FTC/E-COURT/KKD/DELHI. ANNOUNCED IN THE OPEN COURT ON 09.01.2013.
FIR No. 419/10 Page 11 of 11