Delhi District Court
State vs Bharat Bhushan on 31 March, 2015
IN THE COURT OF MS. REKHA
CHIEF METROPOLITAN MAGISTRATE
NORTHWEST DISTRICT : ROHINI COURTS : DELHI
Unique Case ID No. :
STATE VS BHARAT BHUSHAN
FIR NO. 588/00
P.S. : SARASWATI VIHAR
U/S : 279/ 338 IPC
J U D G M E N T
a)Date of commission of offence : 21.08.2000
b) Name of the complainant : HCHari Chand
c)Name, parentage and : Bharat Bhushan S/o Sh. Mohan Lal address of the accused R/o G18/24, Sector15, Rohini Delhi.
d)Offence complaint of : 279/338 IPC e)Plea of accused : Pleaded not guilty f)Final Order : Acquitted. g)Date of order : 31.03.2015 h)Date of conclusion of : 31.03.2015 final arguments BRIEF FACTS AND REASONS FOR DECISION:
1. Brief facts of this case, as per the prosecution, are that on 21.08.2000 at about 7:20 am at service road, opposite Kohat Enclave, Pitampura, Delhi34, accused was found Fir No. 588/00 State Vs. Bharat Bhushan page 1 driving Tata Indica Car HR05G7796 (hereinafter referred as offfending vehicle)in a very rash and negligent manner so as to endanger human life and on the above date, time caused grevious injury to Vibhor S/o Sh. Vidya Bhushan. After investigation, he was duly chargesheeted to the Court.
2. Copies of the relevant documents were supplied to the accused and notice U/s 279//338 IPC was also framed to which accused pleaded not guilty and claimed trial.
3. At the time of trial, prosecution examined following PW's: PW1 Vidhya Bhushan PW2 Vibhore PW3 SIUmed Singh PW4 Ct. Rajpal PW5 Ct. Jogender PW6 HC/DORajesh Kumar PW7 Retd. SIHari Chand PW8 Dr. Suparna Jha
4. After conclusion of the prosecution evidence, statement of accused recorded. He denied the allegations and Fir No. 588/00 State Vs. Bharat Bhushan page 2 stated that he is innocent and he has been falsely implicated in this case. He chose not to lead evidence.
5. I have heard Ld. APP for the State and counsel for the accused and carefully perused the record.
6. So far as the evidence led by the prosecution is concerned, as per testimony of PW1 Vidhya Bhushan, on 21.08.2000 at about 7:20 am he was going to drop his sons namely Vibhore and Vishesh at their school. The accused (correctly identified by the witness) that day came from the wrong side while driving Indica car No. HR 05 G 7796 at Main Road, Opposite Service Road, in front of Kohat Enclave, which was wrong side. The accused was driving his car at the very high speed of about 60/70 kmph and hit his (complainant's) son Vibhore at his left leg, who fell on the bonet of the car and hit his jaw on the bonet and due to this accident, he was thrown at a distance of 10 feet away by the impact. He immediately became unconscious. He regained consciousness partial. He took his son with the help of 2/3 passersby to the Fir No. 588/00 State Vs. Bharat Bhushan page 3 Gautam Hospita where he was told that the left leg of the injured would have to be imputated, and thereafter, he took his son to Aggarsain Hospital. The accused stopped his car after hitting his son. He noted down the number of his car. The accused also accompanied them to Aggarsain Hospital, but from there, the accused went away and never came back, again said he accompanied us till Gautam Hospital and thereafter on hearing that the leg of the injured had to be imputated, he being afraid of that went away from there and never came back. Police prepared the site plan on his instance, which is Mark A. The accused who hit his son by his car was present in the court that day.
7. PW2Vibhore was minor and aged about 11 years. Therefore, before putting him to examination as a witness, Court had asked certain questions to him to ensure as he has the capacity and understanding to depose as a witness and if he understand the sanctity of the court.
After examination, it was found that the witness was Fir No. 588/00 State Vs. Bharat Bhushan page 4 a young boy and found afraid of the atmosphere of the Court hence, he had not examined.
8. As per testimony of PW3SIUmed Singh, on 27.08.2000, he was posted at PS S. Vihar as SI MT Technical. On that day, he had inspected the Tata Indica Car no. HR 05G 7796 at the request of Investigating Officer (in short IO) Hari Chand at PS S. Vihar. After inspection, he had submitted his detailed report Ex. PW3/A to the IO, which was in his handwriting and bearing his signatures at pt A. The car was found fit for road test.
9. As per testimony of PW4 Ct. Rajpal, on 21.08.2000, he was posted at PS S. Vihar. On that day, on receipt of DD no. 6A, he along with HC Hari Chand reached at Maharaja Aggrasain Hospital where HC Hari Chand collected the MLC of injured Vibhore, on which the Doctor had given his opinion as unfit for statement and the nature of injury was grievous. In hospital, he came to know that the person who accompanied the injured had gone to arrange the money. Fir No. 588/00 State Vs. Bharat Bhushan page 5 Thereafter, they went to the spot, where, IO searched for the eye witness, but none met and then he made the rukka on DD. He went to the Police Station for registration of case FIR. He came with the copy of FIR and original rukka at the spot and handed over the same to the IO. When he came back the father of the injured Vidya Bhushan was also present. At his instance, site plan was prepared and he told the facts to the IO. His statement was recorded by the IO.
10. As per testimony of PW5 Ct. Joginder, on 21.08.2000, he was present with the IO of this case. Vehicle no. HR 05G 7796 was seized in this case in his presence as per memo Ex. PW5/A bearing his name at pt A.
11. As per testimony of PW6 Duty Officer Rajesh Kumar, on 21.08.2000, he was posted at PS S. Vihar as Duty Officer from 9 am to 5 pm. On that day, he received rukka at about 10:45 am through Ct. Raj Pal sent by HC Hari Chand on the basis of which he recorded FIR of the present case, carbon copy/ computerized copy of which is now Ex. PW6/A and my Fir No. 588/00 State Vs. Bharat Bhushan page 6 endorsement on the rukka is Ex. PW6/B. After the registration of the FIR he handed over copy of FIR and rukka to Ct. Rajpal.
12. As per testimony of PW7 Retd. SI Hari Chand, on 21.08.2000, he was posted at PS S. Vihar as Head Constable. On that day, he received DD no. 6A and he along with Ct. Rajpal went to spot of incident i.e. at service road, Kohat Enclave near Aggarwal Sweets, Delhi. After reaching there, they came to know that injured had been taken to hospital. After some time, he received information from duty officer that injured had been taken to Maharaja Agarsen Hospital, Punjabi Bagh. Thereafter he along with Ct. Rajpal went to Agrasen Hospital. After reaching there, he collected MLC of injured Vibhor Allahabadi. He was declared unfit for statement by doctor. The nature of injury on MLC was mentioned as grievous. He also came to know that there was one person with injured Vibhor who had gone to arrange money for treatment of Vibhor. Thereafter he along with Ct. Rajpal returned back to the spot of incident. He prepared the Fir No. 588/00 State Vs. Bharat Bhushan page 7 rukka, which was Ex. PW7/A bearing his signatures at pt A. He handed over the rukka to Ct. Rajpal for registration of FIR. He accordingly went to PS and got the FIR registered. Thereafter, Ct. Rajpal returned back to the spot of incident and handed over the original rukka and copy of FIR to him. Thereafter he along with Ct. Rajpal went to Maharaja Agrasen Hospital, where they met with Sh. Vidhya Bhushanfather of injured Vibhor, who was eye witness of incident. He recorded statement of Vidhya Bhushan u/s 161 CrPC . Thereafter he along with CT. Rajpal and eye witness Vidhya Bhushan returned back to the spot of incident and prepared site plan at the instance of Vidhya Bhushan, same was Ex. PW7/B. He recorded statement of Ct. Rajpal u/s 161 CrPC. Thereafter, they returned back to PS. Thereafter, he issued a notice u/s 133 MV Act to the owner of offending vehicle i.e. Tata Indica Car HR 05G 7796 vide memo Ex. PW7/C bearing his signatures at pt A. On 27.08.2000, Swaranjeet, owner of offending Fir No. 588/00 State Vs. Bharat Bhushan page 8 vehicle produced the offending vehicle i.e. Tata Indica Car HR 05G 7796 and accused Bharat Bhushan. He also produced his reply u/s 133 MV Act. He seized Tata Indica car vide seizure memo already Ex. PW5/A bearing his signatures at pt B. He also arrested accused Bharat Bhushan vide arrest memo Ex. PW7/D bearing his signatures at pt A. He also did personal search of the accused vide personal search memo Ex. PW7/E bearing his signatures at pt A. He requested the mechanical inspector to conduct the mechanical inspection of Tata Indica car vide memo Ex. PW7/F bearing his signatures at pt A. He recorded statement of mechanical inspector.
On 30.08.2000, he recorded statement of injured Vibhor. He recorded statements of witnesses. Thereafter he prepared the challan and filed the same in court through SHO. Accused was present in the court that day. Accused was identified correctly by the witness.
14. As per testimony of PW8 Dr. Suparna Jha, on 21.08.2000, injured Vibhor was brought to our hospital and Dr. Fir No. 588/00 State Vs. Bharat Bhushan page 9 Pradeep Kumar Kapoor examined him and prepared MLC No. 2160. Dr. Pardeep Kumar Kapoor had left the service of their hospital and his present whereabouts were not known. He had worked with Dr. Pardeep Kumar Kapoor and had seen him signing and writing and therefore he was acquainted with his handwriting. The MLC Ex. PW8/A bears signatures of Dr. Pardeep Kumar Kapoor at pt A.
15. During the course of arguments, it was argued on behalf of the accused that the accused was not driving the offending car and no such accident was caused by the accused due to rash and negligent driving. Ld. counsel for accused also argued that there are contradictions and discrepancies in the case of the prosecution and that the accused is liable to be acquitted.
16. On the other hand, Ld. APP for the State, in rebuttal, has forcefully contended that the case of the Prosecution stands duly proved as the testimonies of every witness are corroborative. She has argued that the star/ public witness Fir No. 588/00 State Vs. Bharat Bhushan page 10 has fully supported the case of the Prosecution on all respects. She has further contented that it is apparent on the face of the record itself that rash and negligent driving of the offending vehicle by the accused has caused greivious injuries of one innocent person for his no fault at all and the culprit may be awarded with maximum punishment to rein such acts in the civil society. She has further contented that the contradiction, if any pointed out by the ld. defence counsel is minor, negligible and much importance cannot be given to them. 15 I have heard the arguments and perused the material on record.
16 Before evaluating the evidence led by the prosecution in respect of the allegations levelled against the accused, I deem it necessary to have a reference to the relevant provisions of law which are attracted in the present matter. Sections 279 & 338 of the Indian Penal Code are the main provisions around which the facts of the present case are revolving. These Sections run as under : Section 279 of Indian Penal Code: Rash driving or Fir No. 588/00 State Vs. Bharat Bhushan page 11 riding on a public way "Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both".
Section 338 of Indian Penal Code: Causing Greivous hurt by act endangering life or personal safety of others "Whoever causes greivous hurt to any person by doing any act so rashly or negligently as to endanger human life, or personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six two years, or with fine which may extend to one thousand rupees, or with both".
17 On the basis of the above provisions, it was obligatory for the Prosecution to prove that at the time of alleged accident, the accused was driving the offending vehicle in rash and negligent manner and while driving so, he caused greivous hurt to Vibhore.
Fir No. 588/00 State Vs. Bharat Bhushan page 12
18. In the present matter, as per the testimony of PW1 Vidhya Bhushan, his sonVibhore sustained injury on 21.08.2000 at 7.20 am due to rash and negligent driving of the offending vehicle by accused while as per defence taken by accused, he was not driving the offending car at the given time & place and no such accident had been caused him. As per the testimony of PW1, there are contradictions regarding accompanying of accused with him at the time of taking his son to the hospital as in his testimony, firstly he stated that accused accompanied him them to second hospital also i.e. Aggarsain Hospital but from there he went away and never came back and again he said that accused only accompanied them at the first hospital i.e. Guatam Hospital and on hearing that the leg of the injured was to be detached, he ran away from there.
19. It is also worthwhile to mention here that as per the PW4Ct. Rajpal, when he came back after getting the FIR registered, the PWVidhya Bushan met him at the spot and at Fir No. 588/00 State Vs. Bharat Bhushan page 13 that time, IO was also present at the spot while as per the testimony of IOPW7Retd. SI Hari Chand, after getting the FIR registered through Ct. Ct. Rajpal, he alongwith Ct. Rajpal went to the Maharaj Agarsen hospital where eye witness Vidhya Bhushan met him and thereafter he alongwith Ct. Rajpal and eye witness Vidhya Bhushan returned back to the spot of incident and prepared site plan at the instance of Vidhya Bhushan.
20. It will not be out of place to mention here that during crossexamination, when PW1 was asked that from which side he was coming with his sons and at which place, he has to go in the site plan MarkA, he answered that he came from the point Z and cross the service road and he has to reach the point Y after crossing the road then he voluntarily said that there was a Zabera crossing at point X and there was a cut in the pavement and the grills. The road is between Mark W and Y. So here view of the Court is that as per the cross examination of PW1, service line was open. On perusal of site Fir No. 588/00 State Vs. Bharat Bhushan page 14 plan, it is found that no space has been show in service road from where accused reached at point A. It has been testified by PW1 that police prepared site plan at his instance which is MarkA. Perusal of site plan, it is found that point A has been shown as place where where Vibhore allegedly sustained injuries because of rash and negligent driving of the accused. Perusal of site plan, it is found that it does not bear the signature of the complainant. So presence of the complainant at the time of preparation of site plan is doubtful.
21. It is also relevant to pen down here that in the present matter, date of incident is 21.08.2000 and date of arrest of accused is 27.08.2000 vide arrest memo Ex. PW7/D and place of of arrest is H. No. 388, Kohat Enclave, Pitampura. Perusal of testimony of IO, nothing has come out that on whose identification, the accused was arrested and how fact of the presence of the accused at the place of arrest came in the knowledge of the IO. It is also relevant to pen down here that perusal of Ex. PW7/D, it is found that it bears the signatures of Fir No. 588/00 State Vs. Bharat Bhushan page 15 Ct. Joginder Singh as witness but perusal of testimony of PW5 Ct. Jogender it is found that he did not utter a single word regarding arrest of the accused. So here view of the Court is that arrest of the accused is also doubtful. More so, perusal of testimony of PW1complainant, it is found that even complainant did not utter anything regarding arrest of the accused.
22. It is also worthwhile to mention here that in the present matter, as per the the testimony of PW7IO, he alongwith Ct. Rajpal proceeded to the spot in pursuant of DD No. 6A. Perusal of file shows that no DD writer has been examined in this case.
28. So in given fact and circumstances of the case, view of the Court is that there are major contradictions in statement of the star material witness. More so, testimony of witnesses are not consonance with each other and there are major contradictions in their statements. As per testimony of PW4Ct. Rajpal, when he came back after getting the FIR Fir No. 588/00 State Vs. Bharat Bhushan page 16 registered, the PWVidhya Bhushan met him at the spot and at that time, IO was also present at the spot while as per the testimony of IOPW7Retd. SI Hari Chand, PWVidhya Bhushan met him at the Maharaj Agarsen hospital. More so site plan is also doubtful as as per the crossexamination of PW1 it seems that service line was open but on perusal of site plan, it is found that no space has been show in service road from where accused reached at point A. Further more, presence of the complainant at at the time of site plan is also doubtful as his signatures does not bear on the site plan. Furthermore, arrest of the accused is also doubtful as nothing has come out from the testimony of the IO that on whose identification, the accused was arrested and how presence of the accused at the place of arrest came in the knowledge of the IO. More so, DD entry has not been proved. In light of above, view of the Court is that prosecution failed to prove that the offending vehicle was being driven by the accused at the relevant time and place. No doubt that no witness has been Fir No. 588/00 State Vs. Bharat Bhushan page 17 examined by the accused but it was duty of the prosecution to prove that offending vehicle was driving by the accused at the relevant time and he caused grevious hurt to Vibhore. So when prosecution failed to prove that offending vehicle was being driven by the accused, so no question of rash and negligent driving by the accused arises. Prosecution also failed to prove that it was accusedBharat Bhushan because of who Vibhore sustained injury. So far as testimony of Dr. Suparna Jha is concerned, in view of the Court MLC report does not prove that by whom the injuries were caused or it was the accused who because of which the Vibhore sustained injury. So in view of above said, this Court is of view that prosecution failed to prove that the accusedBharat Bhushan has committed an offence Under Section 279 & 338 Indian Penal Code. Hence, in the given fact and circumstances of the case, accused namely Bharat Bhushan acquitted for offence U/s 279 & 338 Indian Penal Code. AccusedBharat Bhushan is on bail in this case. His bail bonds shall remain in force for a Fir No. 588/00 State Vs. Bharat Bhushan page 18 period of six months in view of the provisions of Section 437 A of the Code of Criminal Procedure. File be consigned to record room after due compliance.
Announced in open Court Today on this 31st March 2015 (REKHA) CHIEF METROPOLITAN MAGISTRATE (NORTHWEST) : ROHINI:DELHI Fir No. 588/00 State Vs. Bharat Bhushan page 19 Fir No. 588/00 State Vs. Bharat Bhushan page 20