Delhi District Court
State vs Kanhya on 27 January, 2025
IN THE COURT OF JUDICIAL MAGISTRATE FIRST
CLASS-07, WEST DISTRICT, TIS HAZARI COURTS,
NEW DELHI
Presided over by- Dr. Aneeza Bishnoi, DJS
Cr. Case No. -: 59779/2016
Unique Case ID No. -: DLWT020007312016
FIR No. -: 1449/2015
Police Station -: Tilak Nagar
Section(s) -: 279/338 IPC
In the matter of -
STATE
VS.
KANHYA
.... Accused
1. Name of Complainant : Manjeet Singh
2. Name of Accused Persons : Kanhya
Offence complained of or
3. : 279/338 IPC
proved
4. Plea of Accused : Not guilty
5. Date of registration of FIR : 08.10.2015 Date of filing of
6. : 24.02.2016 chargesheet
7. Date of Reserving Order : 28.11.2024
8. Date of Pronouncement : 27.01.2025
9. Final Order : Convicted Argued by -: Sh. Chetan Mittal, Ld. Substitute APP for the State.
Sh. K.C. Singh, Ld. Counsel for accused.
Digitally signedANEEZA by ANEEZA BISHNOI BISHNOI Date: 2025.01.27 14:26:07 +0530 Cr. Case No.59779/2016 State vs. Kanhya Page 1 of 11 J U D G M E NT FACTUAL MATRIX -
1. The case of the prosecution is that on 08.10.2015, at about 02:30 PM, at Metro Pillar No.574, District Center Flyover, Delhi, within the jurisdiction of PS Tilak Nagar, the accused is alleged to have been driving a vehicle i.e. red colour Maruti Zen car bearing registration number DL-9CK-9256 in a rash or negligent manner so as to endanger human life. Further, on the above said date, time and place, it has been alleged that the accused, while driving the above said vehicle in rash or negligent manner, hit a motorcycle bearing no. UP-81K-5400 as a result of which the victim Manjeet Singh sustained grievous injuries, and accordingly, the accused is alleged to have committed the offence u/s 279/338 IPC.
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial.
3. On her appearance, a copy of charge-sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, charge under Sections 279/338 IPC was framed against accused to which she pleaded not guilty and claimed trial.
Digitally signed byANEEZA ANEEZA BISHNOI PROSECUTION EVIDENCE - BISHNOI Date: 2025.01.27 14:26:13 +0530 Cr. Case No.59779/2016 State vs. Kanhya Page 2 of 11
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : Manjeet Singh PW-2 : Ct. Lokender PW-3 : Retd. ASI Devender PW-4 : HC Pramod Kumar PW-5 : ASI Sunil Kumar PW-6 : Dr. Sanjay PW-7 : Subhash Chand, Record Clerk DOCUMENTARY EVIDENCE Ex. PW-1/A : Statement of complainant Ex. PW-2/A : Seizure memo of offending vehicle Ex. PW-2/B : Seizure memo of victim's vehicle Mechanical inspection report of Ex. PW-3/A :
offending vehicle Mechanical inspection report of Ex. PW-3/B :
victim's vehicle
Ex. PW-4/A : Arrest memo
Ex. PW-4/B : Personal search memo
Ex. PW-4/C : Seizure memo of DL, RC & Insurance
Ex. PW-5/A : Tehrir
Ex. PW-5/B : Site plan
Ex. PW-5/C : Notice u/s 133 M.V. Act
Ex. PW-6/A : MLC No.8955
Ex. P1 : Case property
Ex. AD-1 : FIR
STATEMENT OF ACCUSED-
5. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of Cr. Case No.59779/2016 State vs. Kanhya Page 3 of 11 Digitally signed ANEEZA by ANEEZA BISHNOI BISHNOI Date: 2025.01.27 14:26:20 +0530 the accused was recorded without oath under Section 281 read with Section 313 CrPC. The accused stated that he is innocent and has been falsely implicated in the present case. He further stated that he was not driving the vehicle at the time of accident. He further stated that no accident was committed by his car. He was not driving rashly and negligently and he was only driving at a speed of 35-40 km/h.
ARGUMENTS -
6. I have heard the learned APP for the State and learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
7. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. As such, it is prayed that the accused be punished for the said offences.
8. Per contra, learned counsel for the accused has argued that the prosecution has failed to establish its case beyond reasonable doubt. It has been further argued that the accused has been falsely implicated in the present case and no such accident ever took place from the car of the accused. Further, he has also argued that it was accused himself who took complainant/injured to the hospital and after getting to know his name, he named as the accused in the present case. It is also argued that in the arrest memo it has not been mentioned that at what time the information has been given and that even at the time of arrest has not been mentioned.
There is also discrepancy in the spot of accident as the site plan shows that the alleged spot is 100 meters away from the flyover. It Cr. Case No.59779/2016 State vs. Kanhya Page 4 of 11 Digitally signed by ANEEZA ANEEZA BISHNOI BISHNOI Date: 2025.01.27 14:26:25 +0530 is also argued that no public witness has been brought over corroborating the version of the prosecution..
INGREDIENTS OF THE OFFENCE -
9. The accused has been charged for the offences of rash driving on public way (S. 279 IPC), causing grievous hurt by act endangering life or personal safety of others (section 338 IPC). Whereas under Section 279 IPC, the factum of rash or negligent driving likely to endanger human life or cause hurt etc. is in itself the offence, section 338 IPC punishes the act of causing hurt caused by a rash or negligent act endangering human life or personal safety of others. Accordingly, even u/s 338 IPC, rash or negligent act is an essential ingredient of the offence. Accordingly, in order to bring home the guilt of the accused, the prosecution has to prove that the accused was driving the offending vehicle in a rash or negligent manner, and due to such driving of the accused, the victim suffered grievous injuries.
10. Thus, the gravamen of the offences under Section 279/338 IPC is the act of the accused, done with "rashness" or "negligence". The IPC does not define either of these terms. However, the ambit of these terms has now been settled by judicial pronouncements of superior Courts. In Empress of India v. Idu Beg ILR (1881) 3 All 776, the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the consequences of such act. The Hon'ble Apex Court in the case of Rathnashalvan v. State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-:
Cr. Case No.59779/2016 State vs. Kanhya Page 5 of 11"7. .... Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted."
11. Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal v. CBI (2014) 6 SCC
173. The standard of negligence was discussed in the said case, by observing, inter alia, as under-:
"58. In the case of "negligence" the courts have favoured a meaning which implies a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of Cr. Case No.59779/2016 State vs. Kanhya Page 6 of 11 Digitally signed by ANEEZA ANEEZA BISHNOI BISHNOI Date: 2025.01.27 14:26:31 +0530 negligence arises from the neglect of the civil duty of circumspection."
12. Thus, rashness implies doing an act despite the consciousness that it might result in injuries. Negligence, on the other hand, means lack of reasonable care that a person placed is the fact situation ought to take, in order to avoid injuries.
13. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE -
14. The star witness of the prosecution is only the eye- witness is complainant/injured that is Manjeet Singh who has been examined as PW-1 wherein he has narrated about the accident as occurred upon him. He has deposed that his motorcycle was hit by the car of accused from the back side which the accused was driving in a rash and negligent manner and due to which complainant/injured received grievous injuries at his left leg. It is also pertinent to mention here that PW-1 has successfully identified the accused and the offending vehicle.
15. The said version of PW-1 has been duly corroborated by the testimony given by PW-3 i.e. Retd. ASI Devender Kumar who mechanically inspected the vehicles involved in the present accident and even in his cross-examination conducted by Ld. Counsel for accused stated that car was damaged from front side Cr. Case No.59779/2016 State vs. Kanhya Page 7 of 11 Digitally signed by ANEEZA ANEEZA BISHNOI BISHNOI Date: 2025.01.27 14:26:36 +0530 bumper and motorcycle was also damaged from rear left side portion.
16. Further, the MLC placed on record of the accused also clearly shows that the injury received by complainant on his left leg is grievous in nature.
DISCUSSION
17. Regarding the accident, the onus is on the prosecution to prove three facts. The first is that the accident took place by the offending vehicle. The second is that the offending vehicle was being driven by the accused. The third is that the offending vehicle was being driven by the accused in a negligent manner.
18. After going through the complete prosecution story and the evidence and after relying upon and the testimonies of the prosecution witnesses, it can be stated that the accused has not been able to bring out any inconsistency and any loopholes in the deposition of the witnesses and the prosecution story. It is also pertinent to mentioned here that accused has nowhere given the suggestion to the prosecution witness that the accident did not occur from the car of the accused.
19. Next, it has to be analyzed whether the vehicle was being driven in a rash or negligent manner. In this regard, it is pertinent to note that the eye-witness i.e. complainant/injured has deposed that the offending vehicle was being driven in a rash and negligent manner.
20. It is pertinent to note that no material contradiction has been brought on record in the testimony of the injured. It is a settled position of law that the testimony of an injured witness is accorded greater value in law, due to the reason that such a witness would Cr. Case No.59779/2016 State vs. Kanhya Page 8 of 11 Digitally signed ANEEZA by ANEEZA BISHNOI BISHNOI Date: 2025.01.27 14:26:42 +0530 seldom implicate someone falsely and let the real culprit go scot- free. In the case of Jarnail Singh v. State of Punjab , 2009) 9 SCC 719, the Hon'ble Apex Court relying on its earlier judgments reiterated that special evidentiary status should be accorded to an injured witness. Relevant part of the judgement is reproduced as under:
28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. 29. In State of U.P. v. Kishan Chand, (2004) 7 SCC 629, a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross examination and nothing can be elicited to discard his testimony, it should be relied upon. Thus, we are of the considered opinion that evidence of Darshan Singh (PW4) has rightly been relied upon by the courts below.
21. A similar view was taken by the Hon'ble Apex Court in Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259, whereby the Hon'ble Apex Court discussed the evidentiary value of the testimony of an injured witness in the following words:
26. The question of the weight to be attached to the Cr. Case No.59779/2016 State vs. Kanhya Page 9 of 11 evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". 28. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
22. Accordingly, it is a settled position in law that the testimony of an injured witness is a highly corroborative piece of evidence. Unless 'highly compelling circumstances' are established on the basis of major contradictions and discrepancies, which cast a reasonable doubt over the statement of the injured witness, such statement can be safely relied upon by the Courts to convict the accused. Therefore, the testimony of PW-1 Manjeet Singh needs to be accorded great weight considering the fact that he is an injured witness.
23. Therefore, it can be concluded that the accused was rash and negligent while driving the offending vehicle and hence, the essential ingredients of the offence u/s 279/338 IPC are made out in the present case.
Cr. Case No.59779/2016 State vs. Kanhya Page 10 of 11 Digitally signed by ANEEZA ANEEZA BISHNOI
BISHNOI Date: 2025.01.27
14:26:47 +0530
24. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offences under Section 279/338 of the IPC beyond reasonable doubt. The basis of the offences charged in the present case is rash or negligent driving of the accused. The prosecution has succeeded in proving that the offending vehicle was being driven by the accused in a rash or negligent manner. The testimony of the eye- witnesses is cogent and convincing and the same is duly supported by mechanical inspection report. Accordingly, the prosecution has been able to prove its case beyond reasonable doubt.
25. Consequently, the accused Kanhya S/o Banke Lal is hereby CONVICTED of the offences under Section 279/338 of the Indian Penal Code, 1860.
Pronounced in open court on 27.01.2025 in presence of the accused. This judgment contains 11 pages, and each page has been signed by the undersigned. Digitally signed by ANEEZA ANEEZA BISHNOI BISHNOI Date: 2025.01.27 14:26:54 +0530 (Dr. Aneeza Bishnoi) Judicial Magistrate First Class-07 West District, Tis Hazari Courts, New Delhi/27.01.2025 Cr. Case No.59779/2016 State vs. Kanhya Page 11 of 11