Delhi District Court
State vs . Anup Singh on 13 February, 2013
IN THE COURT OF SH. DEEPAK DABAS METROPOLITAN MAGISTRATE (NORTH WEST05): DELHI FIR No. 406/1997 ID 02404R0083592012 U/s. 279/338 IPC PS Adarsh Nagar State vs. Anup Singh JUDGMENT
1. Sr. No of case 332/2
2. Date of commission of offence 9.8.1997
3. Name of complainant Sh. Rajesh Kumar
4. Name of accused Anup Singh
s/o. Sh. Ranveer Singh
r/o. H No. 442, Sewa Nagar
New Delhi
5. Offence complained of u/s. 279/338 IPC
6. Plea of accused Pleaded not guilty
7. Final order Convicted
8. Date of such order 13.2.2013
BRIEF REASONS FOR SUCH DECISION:
1. The prosecution was set into motion in the present case on the basis of statement of the complainant i.e. Sh. Rajesh recorded on 9.8.1997. In his statement, complainant had alleged that he is a permanent resident of UP and used to earn his 406/1997 Adarsh Nagar page1/ livelihood by pulling handcart at NS Mandi alongwith his friend namely Prahlad. It is further alleged that on 9.8.97 at about 3.25 AM he alongwith his friend and one Sh. Ramdass were taking the handcart to NS Mandi for loading the goods of Sh. Ramdass. It is further alleged that when they reached near Ingate NS Mandi, a tempo bearing No. DL 1LB 6839 came from side of Azadpur at a very high speed in rash and negligent manner and hit against them as a result of which he and his friend had sustained injuries. On the basis of the said statement the present case was registered and investigation was carried out.
2. After completion of investigation, chargesheet was filed.
Accused was summoned and provision of section 207 cr.p.c. were complied with.
3. The particulars of offence were explained to accused in Hindi language and notice for offences punishable u/s. 279/338 IPC was given to accused to which he pleaded not guilty and claimed trail and accordingly the case was fixed for prosecution evidence.
4. During the course of trial prosecution examined five witnesses in support of its case.
406/1997 Adarsh Nagar page2/
5. PW1 is ASI Om Singh i.e. the duty officer; PW2 is Sh. Ramdass i.e. eye witness/ injured; PW3 is HC Pratap Singh; PW4 is ASI Sudershan Kumar and PW5 (wrongly numbered as PW4) is ASI Sewa Ram i.e. MHCm.
6. Thereafter, prosecution evidence was closed on 30.7.2012 and statement of accused was recorded on 7.9.2012 wherein accused denied the evidence that has come on record against him. Accused chose not to lead evidence in his defence.
7. I have heard Ld APP for State as well as Ld counsel for accused and have also carefully gone through the file.
8. PW1 ASI Om Singh merely proved the FIR i.e. Ex.
PW1/A.
9. PW2 Sh. Ramdass deposed that in the year 1997 during the summer season he had gone to Azadpur Mandi for selling ladyfinger and had taken assistance of two persons namely Rajesh and Prahlad for loading and taking the goods in the rehri to the Mandi. He further stated that at about 3.00 AM when they were entering NS Mandi, suddenly a tempo came from behind without blowing horn at a very fast speed and struck against the rehri. He 406/1997 Adarsh Nagar page3/ further stated that due to the impact of accident, all 3 of them sustained injuries and police arrived at the spot and took them to the hospital. He further stated that the number of the offending tempo was DL 1V 6839 and accused was its driver.
10. PW3 HC Prahlad Singh testified that on 9.8.1997 he was posted at police station Adarsh Nagar as constable and on that day he was present at PP NS Mandi and he had joined the investigation of the present case with the HC Sudershan and went to the spot i.e. Ingate NS Mandi where they found a thela and tempo bearing No. DL 1LB 6839 in accidental condition. He further stated that the driver of the tempo was also present at the spot who informed them that the injured persons were taken to the hospital by an unknown vehicle. He further stated that thereafter IO went to the hospital leaving him at the spot with the custody of accused. He further stated that after sometime IO returned to the spot and prepared rukka and got the case registered through him and after registration of the FIR he returned to the spot and handed over copy of FIR and rukka to the IO. He further stated that thereafter the offending tempo and the rehri were seized vide memo Ex. PW3/A and Ex.
406/1997 Adarsh Nagar page4/ PW3/B. He further stated that IO also seized the documents of the offending vehicle and accused was arrested.
11. In his cross examination, PW3 stated that they had reached the spot at about 3.35 AM. He further stated that he do not remember the exact time when they finally left the spot. He further stated that he had made inquries from the persons at the spot regarding the manner in which the accident had taken place. He denied the suggestion that lot of shops are located near the spot. He denied the suggestion that the vehicles could not be driven at fast speed at NS Mandi at 3.00 AM. He also denied the suggestion that the vehicle of accused was parked. He denied the suggestion that when IO went to the hospital he also left the spot. He denied the suggestion that accused was falsely implicated in the present case.
12. PW4 is ASI Sudershan Kumar i.e. the IO of the present case. PW4 deposed regarding receipt of DD No. 38; reaching the spot alongwith PW3; finding the tempo in accidental condition. He further stated that thereafter he went to the hospital and found 3 injured persons namely Rajesh, Prahlad and Ramdass and he recorded statement of Rajesh who was declared fit for statement.
406/1997 Adarsh Nagar page5/ He further stated that thereafter he returned to the spot and got the case registered through PW3; prepared site plan and arrested the accused; seized the vehicles in question and the documents of the offending vehicle. He further stated that thereafter accused was released on bail and tempo was deposited in the malkhana and after getting it mechanically inspected, released it on superdari. He further stated that after concluding the investigation prepared the challan and filed the same in the court through SHO concerned.
13. PW5(wrongly numbered as PW4) deposed regarding deposit of tempo and rehri in the malkhana by the IO and he made the entry in this regard vide entry number 1832/97 in Register No.
19.
14. Accused in his statement u/s. 313/281 cr.p.c. recorded in court denied the evidence that has come on record against him. He chose not to lead evidence in his defence.
15. Prosecution in support of its case has examined five witnesses. The testimony of PW1 and PW5 is formal being the duty officer and MHCm respectively. PW2 is the most important witness being one of the injured. PW3 and PW4 are police officials 406/1997 Adarsh Nagar page6/ who had reached the spot on receipt of information regarding accident.
16. PW2 i.e. Sh. Ramdass is the eye witness/ injured. PW2 had deposed in detail the manner in which the accident had taken place. PW2 in his examinationinchief deposed that the offending tempo was being driven at very high speed and had not blown the horn and had hit their rehri as a result of which all three of them had sustained injuries. PW2 in his examinationinchief also deposed that accused was driving the offending tempo and had correctly identified the accused in the court. It is pertinent to mention that PW2 was not cross examined by or on behalf of accused. The testimony of PW2 has remained unrebutted and unchallanged. Perusal of the testimony of PW3 and PW4 shows that they have supported the prosecution version. They have proved the investigation of the present case and the documents prepared during the investigation of the present case. Accused was apprehended at the spot itself.
17. In the present case, notice for offences punishable u/s.
279/338 IPC was given to the accused. Section 338 IPC provides 406/1997 Adarsh Nagar page7/ punishment for causing grievous hurt by an act endangering life or personal safety of others. Causing of grievous hurt is sinequanon for attracting the offence punishable u/s. 338 IPC. As per prosecution version, complainant Sh. Rajesh Kumar had sustained grievous injuries. It is pertinent to mention that Sh. Rajesh Kumar had never appeared in court. Even the concerned doctor who had opined that injured Rajesh Kumar had sustained grievous injures was not produced and examined by the prosecution in support of its case. Even the record clerk from the concerned hospital has not been produced and examined by the prosecution. Keeping in view the facts and circumstances and the discussion made hereinabove, I am of the considered view that the prosecution has failed to prove all the essential ingredients of the offence punishable u/s. 338 IPC as the prosecution has failed to prove the MLC of injured Rajesh Kumar and the nature of the injuries sustained by him. At this stage, reference to section 222 cr.p.c can be made. Section 222 cr.p.c postulates that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination 406/1997 Adarsh Nagar page8/ is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
18. At this stage, reference can also be made to section 337 IPC. Section 337 IPC postulates that whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life shall be punished with imprisonment or fine or both as mentioned in the section.
19. The basic/ only difference between section 337 and 338 IPC is the nature of the injuries. Causing of hurt is sufficient to bring an act within the parameters of offence punishable u/s. 337 IPC. Causing of grievous hurt is essential for attracting the provision of section 338 IPC. Section 337 IPC is a minor offence when compared to section 338 IPC. An accused can be convicted with the aid of section 222 cr.p.c for offence punishable u/s. 337 IPC even if the notice for offence punishable u/s. 338 IPC only is framed, if all the essential ingredients of the offence punishable u/s. 337 IPC are proved and the essential ingredients of offence punishable u/s. 338 IPC are not proved, as section 337 IPC is minor offence as compared to section 338 IPC. PW2 in his unchallanged 406/1997 Adarsh Nagar page9/ and unrebutted testimony had specifically stated that the accused was driving the offending vehicle in a rash and negligent manner and had caused injuries to him as well as to his associates. PW2 had correctly identified the accused. PW3 and PW4 have corroborated the version of PW2.
20. From the testimony of PWs, I am of the considered view that prosecution has proved its case against the accused beyond reasonable doubt for offence punishable u/s. 279/337 IPC. Hence, accused is hereby convicted for offences punishable u/s. 279/337 IPC.
ANNOUNCED IN OPEN COURT DEEPAK DABAS
on 13th of February, 2013 MM:NW05:ROHINI:DELHI.
406/1997 Adarsh Nagar page10/
IN THE COURT OF SH. DEEPAK DABAS
METROPOLITAN MAGISTRATE (NORTH WEST05): DELHI FIR No. 406/1997 ID 02404R0083592012 U/s. 279/337 IPC PS Adarsh Nagar State vs. Anup Singh ORDER ON POINT OF SENTENCE Present: Ld APP for State.
Convict is present in person alongwith Ld counsel. I have heard Ld APP for State as well as Ld counsel for convict on the point of sentence and have perused the record.
It is submitted by Ld counsel for convict that convict is not a previous convict. It is further submitted by Ld counsel for convict that convict had already spent a period of about 11 days in judicial custody during the trial of the present case. It is further submitted by Ld counsel for convict that convict belongs to poor strata of the society. It is further submitted by Ld counsel for convict that convict is the sole bread earner for his family. Convict has also prayed for a lenient view.
On the other hand Ld APP for State submitted that the 406/1997 Adarsh Nagar page11/ convict be sentenced to maximum punishment as prescribed for the offences in question.
In the present case convict has been convicted for offences punishable u/s. 279/337 IPC. No previous conviction/ involvement has been alleged or proved against convict. Convict is having a family to support. The present case is pertaining to the year 1997 and convict is facing trial in the present case since then. Convict had already spent a period of about 11 days in judicial custody during the trial of the present case. I am of the considered view that the mitigating circumstances far outweigh the aggravating circumstances and therefore, lenient view is being taken.
Keeping in view the facts and circumstances, I am of considered view that ends of justice would be met if the convict is sentenced to pay a fine of Rs. 1000/ for offence punishable u/s. 279 IPC and in default of payment of fine to undergo SI for a period of one day. For offence punishable u/s. 337 IPC convict is sentenced to pay a fine of Rs. 1000/ and in default of payment of fine to undergo 406/1997 Adarsh Nagar page12/ SI for a period of one day and SI for the period already undergone by him during the trial of present case.
Total fine of Rs. 2000/ has been deposited. Receipt be issued.
ANNOUNCED IN OPEN COURT DEEPAK DABAS on 13th of February, 2013 MM:NW05:ROHINI:DELHI. 406/1997 Adarsh Nagar page13/ 406/1997 AN 13.2.2013 Present: Ld APP for the State.
Accused is present on bail alongwith Ld counsel. The case is today fixed for orders.
Vide my separate judgment of even date announced in open court today accused is convicted for offences punishable u/s. 279/337 IPC. Arguments on the point of sentence heard.
Vide my separate order, convict has been sentenced. Copy of judgment as well as order on point of sentence be supplied to convict free of cost today itself. Bail bonds are cancelled. Surety is discharged. Original documents, if any of surety on record be returned after cancellation of endorsement thereon. File be consigned to record room after necessary compliance.
DEEPAK DABAS
MM:NW05:DELHI:13.2.2013
406/1997 Adarsh Nagar page14/