Delhi District Court
State vs . Sher Khan on 23 October, 2018
IN THE COURT OF SH. PANKAJ ARORA, MM-03, KKD,SHD, Delhi STATE Vs. SHER KHAN FIR No. 38/08 PS: Nand Nagri U/S: 279/338 IPC 23.10.2018 ID No. : R0068742007 Date of commission of offence : 24.01.2008 Date of institution of the case : 02.03.2009 Name of the complainant : Sh. Subhash Name of accused and address : Sher Khan S/o Sh. Mohd Akhter, R/o A- 4/446, East Gokal Pur, Amar Colony, Delhi Offence complained of or proved : U/s 279/338 of IPC. Plea of the accused : Pleaded not guilty Final order : Convicted Date of judgment : 23.10.2018 JUDGMENT
1. The case of the prosecution in brief is that on 24.01.2008, at around 12.00 noon, in front of DTC Depot, Nand Nagri, Delhi within the jurisdiction of PS Nand Nagri accused Sher Khan was found driving a motorcycle bearing no. DL-3SAW-5603 in a rash and negligent manner as to endanger human life or to be likely to cause hurt or injury to any person and while driving in the said manner, he hit a pedestrian namely subhash and thereby caused grievious injury to him. On the basis of the statement of complainant Subhash, the present FIR came to be registered. After completion of necessary formalities, charge sheet was filed in this Court. Cognizance was taken. The accused was summoned. Notice was framed against the accused, to which he pleaded not guilty and claimed trial.
State Vs.Sher Khan
2. The prosecution examined 7 witnesses in support of its case, which are as follows:
1) Sh. Subhash, who is complainant in this case, was examined as PW-1. He deposed that on 24.01.2008, at around 12.00 noon, he was going to Nand Nagri DTC Depot by passing through Zebra-Crossing as he was employed at DTC Depot, Nand Nagri. It is further deposed that in the meanwhile, accused had come on motorcycle bearing registration no. DL-3SAW-5603 from wrong side and hit him with the said motorcycle. It is further claimed that after hitting him, the accused had tried to run away with his motorcycle. However, some passengers who were standing at the Bus Stand nearby had managed to apprehend the accused with his motorcycle. It is further testified that that some one from DTC Depot had called the police. PCR Van came at the spot and took me to GTB Hospital. It is further deposed that IO Jai Vir Singh from PS Nand Nagri had visited him in hospital with one Ct. and recorded his statement which is Ex. PW-1/A. It is further claimed that the accident was occurred due to negligent driving of the accused as he was coming from wrong side on the above said motorcycle. It is further deposed that on the night of 24.01.2008, he went to AIIMs Trauma Centre from GTB Hospital for further treatment as he was not receiving proper treatment in GTB Hospital. He was remained admitted for two days in AIIMs Trauma Centre. It is further deposed that IO had collected his treatment papers of GTB Hospital only and he had not collected my treatment papers of AIIMs Trauma Centre. It is admitted by witness in his cross-
examination that at the time of incident, he was government servant ( Probation period). It is further admitted in his cross-examination that spot was not crowded. It is further admitted by witness that he had received the medical claimed Rs. 2,50,000/- from MACT Patiala House Court.
State Vs.Sher Khan
2) Ct. Mukesh was examined as PW2. He deposed that on 24.01.2008, he was posted at PS Nand Nagri as Ct. On that day, he was performing emergency duty along with ASI Jai Vir Singh from 8.00 am. to 8.00 p.m. At about 12.00 p.m., Duty Officer told him regarding accident vide DD No. which is not remember him today. After receiving the information vide DD, he along with ASI Jai Vir Singh reached at in front of DTC Depot, Nand Nagri where he found that the offending vehicle i.e. motorcycle bearing registration no. DL-3SAW-5603 was standing there. It is further deposed that they came to know that the injured had already been taken to GTB Hospital by PCR Van along with accused who caused the accident. It is further claimed that no eye-witness found at the spot. Thereafter, he along with ASI Jai Vir Singh visited GTB Hospital where ASI Jai Vir Singh had collected MLC of the injured Subhash and recorded his statement. It is further claimed that he was sent to PS with original rukka for registration FIR. After registration of FIR at PS, he came back at GTB Hospital along with original rukka and copy of FIR and handed over the same to IO. It is further deposed that he came to know that the accused was also present at Hospital. Thereafter, the accused was interrogated and the accused had been taken to spot. It is further testified that motorcycle of the accused which was lying at the spot was seized by vide seizure memo which is Ex. PW-2/A. It is further deposed that accused was arrested and personally searched vide memos which are Ex. PW- 2/B & PW-2/C. It is further deposed that documents of motorcycle and DL of the accused were seized vide seizure memos which are Ex. PW-2/D & PW-2/E. Surety of the accused had come at the spot and the accused was released on bail. His statement was recorded by the IO. The accused Sher Khan is correctly identified by the witness. It is admitted by witness in his cross-examination that no statement of public persons was recorded however statement of the State Vs.Sher Khan complainant was recorded in his presence by IO. It is also admitted by witness that the accused was present with IO when the injured was found in the hospital. It is further admitted by witness that accused remained present in the hospital when he came back from PS after registration of FIR.
3) WSI Santosh was examined as PW 3. He deposed that on 24.10.2008, he was posted at PS Nand Nagri, as duty officer. On that day, his duty hours were from 09.00 am to 05.00 pm. At about 01.35 pm, Ct. Mukesh brought the rukka and same was prepared and sent by ASI Jaibir. On the basis of which, he registered the present case FIR no. 38/08 and copy of the same is Ex. PW3/A (OSR). He made an endorsement which is Ex. PW3/B. Prior to registration of this FIR, he also recorded one DD No. 8A at about 12.05 pm. Today, he brought original DD Entry Registration ( OSR). DD No. 8A is Ex. PW3/C. The witness was cross-examined but nothing material came out in his cross-examination.
4) Sh. Taslimuddin Siddique was examined as PW4. He deposed that he was Government approved Surveyor and loss Accessors and working for last 40 years indendently. On 24.01.2008, on the request of ASI Jaibir Singh, PS Nand Nagri. He mechanically examined Bajaj Pulsar Motorcycle no. DL-3SAW-5603 and prepared the detailed report which is Ex. PW4/A and same was handed over to the IO. The witness was cross-examined but nothing material came out in his cross-examination.
5) SI Jaibir Singh who was IO in this case was examined as PW5. He deposed that on 24.01.2008 he was posted at PS Nand Nagri as ASI. It is deposed that on that day having received DD No. 8 A regarding the accident, he alongwith Ct. Mukesh reached at the spot i.e. in front of DTC depot Nand Nagri. Where a motorcycle no. DL 3S AW 5603 was found standing along the side of the road and he came to State Vs.Sher Khan know that injured had already been removed to the GTB hospital. It is further testified by witness that they went to the hospital and collected the MLC of injured Subhash and recorded the statement as he was fit for statement as per MLC. His statement is already Ex. PW1/A. It is further deposed that he prepared the rukka Ex. PW5/A and handed over to the Ct. Mukesh for registration of FIR. He went to the PS accused Sher Khan was also present and he was identified by the complainant/injured Subhash. It is further claimed that he alongwith accused Sher Khan reached at the spot. Ct. Mukesh came to the spot and handed over copy of FIR and original Tehrir to him at the spot. It is further deposed that he seized the above said motorcycle at the spot vide memo Ex. PW2/A. He also seized the DL of the accused vide memo Ex. PW2/E and photocopy of the RC/insurance of the said motorcycle vide memo Ex. PW2/D. It is further deposed that accused was arrested vide memo Ex. PW2/B and personally search memo Ex. PW2/C. Accused is correctly identified by the witness. It is further claimed that case property was deposited in the Malkhana in PS Nand Nagri. On 24.01.2008 the mechanical inspection of the above said vehicle was done by Taslimuddin Siddique, government approved surveyor vide memo Ex. PW4/A at PS and collected the report. It is further deposed that on 25.01.2008, he prepared site plan at the instance complainant Ex. PW5/B. It is further claimed that he deposited the MLC for the final opinion and collected it after the final opinion. He also collected the X Ray report and X ray films. He added section 338 IPC as the final opinion was grievous. It is further claimed that identity of the above said motorcycle is not disputed by accused. DL of the accused is on record Ex. PW5/C. After completion of the investigation he filled the chargesheet before the court. The witness was cross-examined but nothing material came out in his cross-examination.
6) Dr. S. Kohli was examined as PW6. He deposed that he was working in the aforesaid hospital since July, 2016. Dr. Rohit has left the services of GTB State Vs.Sher Khan hospital and present whereabouts of Dr. Rohit are not known to hospital. On basis of hospital records, and fact that he had seen Dr. Rohit signing on number of occasion during course of my official duty. Therefore, he was in position to identify the signatures and hand-writing. MLC No. 330/08 of Patient Subhash Kumar shown to the witness and witness identifies the signature & hand-writing of Dr. Rohit at point A and MLC is Ex. PW-6/A. The witness was cross-examined but nothing material came out in his cross-examination.
7) Dr. I. K. Dhami was examined as PW7. He deposed that he was working in the aforesaid hospital since 1996. Dr. Manoj Goel has left the services of the hospital and present whereabouts of Dr. Manoj Goel are not known to hospital. He has been deputed by Medical Superintendent to depose in place of Dr. Manoj Goel as he had seen Dr. Manoj Goel signing on number of occasion during course of his official duty. Therefore, he was in position to identify the signatures and hand-writing. MLC No. B-330/08 of Patient Subhash shown to the witness and witness identifies the signature & hand-writing of Dr. Manoj Goel at point B on MLC is already Ex. PW-6/A. The witness was cross-examined but nothing material came out in his cross-examination.
3. Thereafter, statement of accused U/s 313 of Cr.P.C. was recorded on 02.05.2018, wherein all the incriminating facts were put to the accused. Accused stated that witnesses are interested witnesses and they were deposing falsely at the instance of IO. Accused opted not to lead any evidence in defence.
4. This Court has heard the final argument from the side of State as well as Ld. Counsel for the accused.
5. It is observed that only one eye witnesses got examined by the prosecution is PW-1 Subhash ( i.e. the injured himself). He has correctly identified the registration no. of offending vehicle as well as the accused. PW-2 has categorically deposed that o n State Vs.Sher Khan 24.01.2008, at around 12.00 noon, he was going to Nand Nagri DTC Depot by passing through Zebra-Crossing as he was employed at DTC Depot, Nand Nagri. Meanwhile, accused had come on motorcycle bearing registration no. DL-3SAW-5603 from wrong side and hit him with the said motorcycle. After hitting him, the accused had tried to run away with his motorcycle. The testimony of PW-1 is inconsonance with the statement Ex. PW-1/A recorded by the IO. MLC Ex. PW6/A and Mechanical Inspection Ex. PW4/A which corroborate the version of the aforesaid PW1 Subhash. As per the MLC Report, the injured has received grievous injury.
It is proved that the offending motorcycle of the accused was being driven on the wrong side of the road and injured was padestrian, who was passing through Zebra Crossing. Thus, accused is supposed to be extra cautious, considering the fact that there was was Zebra Crossing at the place of incident. It is pertinent to mention at this stage that it has been held by the Hon'ble High Court of Delhi in case titled as Jeet Lal Vs. The State that 'the very fact that the truck driver did not care for the persons walking ahead on the road and did not apply brakes to save the pedestrian walking on the road itself shows that the truck driver was negligent. Every motor vehicle driver is supposed to drive the vehicle in accordance with road conditions, traffic density and presence of pedestrians on the road. Where the traffic density is more and pedestrians are also waling on the road, the motor vehicle driver is supposed to drive in such a manner that he does not hit the pedestrian and the motor vehicle would stop immediately on application of brakes. If this caution of driving a vehicle in a proper manner is not taken, this would amount to negligence and if the motor vehicle hits somebody from behind, due to such driving or non-application of brake, this is criminal negligence'.
6. All the prosecution witnesses have deposed about the incident fully in consonance with the facts mentioned in the charge sheet. The witnesses were not cross-examined despite having given the opportunity. There is no reason to disbelieve State Vs.Sher Khan the testimony of the prosecution witnesses. The prosecution has proved the fact that the accused namely Sher Khan was driving motorcycle bearing registration no. DL-3SAW-5603 on a public way in a manner so rash or negligent as to endanger human life and also the fact that while driving in the said manner, the accused namely Sher Khan has hit against complainant who was passing through Zebra Crossing and thereby caused grievous injured to complainant. All the ingredients of section 279/338 of IPC are proved. The testimony of prosecution witnesses comes out to be clear, convincing, trust-worthy & inspires confidence of this Court. Accordingly, accused namely Sher Khan is hereby convicted for the commission of offence under Section 279/338 of IPC.
Announced in the open Court, On 23.10.2018 (Pankaj Arora) MM-02 (SHD)/Delhi 23.10.2018 Digitally signed PANKAJ by PANKAJ ARORA ARORA Date: 2018.10.23 17:09:48 +0530 State Vs.Sher Khan FIR No.38/08 PS: N. Nagri 23.10.2018 Present: Ld. APP for the State.
Accused Sher Khan in person with counsel.
Vide separate judgment dictated in the open court, the accused namely Sher Khan is hereby convicted for the commission of offence under Section 279/338 of IPC.
The convict be heard on the point of sentence on 16.11.2018 at 2.00 p.m. (Pankaj Arora) MM-02 (SHD) Delhi 23.10.2018 State Vs.Sher Khan