Delhi District Court
State vs Mainder Pal on 17 May, 2024
IN THE COURT OF SH. MANUJ KAUSHAL METROPOLITAN
MAGISTRATE-04/CENTRAL: DELHI
STATE Vs. MAINDER PAL
FIR No. 431/2017
Case No. 8665/2018
P.S. : Sarai Rohilla
U/S 279/338 IPC
Date of institution of case : 29.06.2018
Date on which case reserved for judgment : 08.05.2024
Date of judgment : 17.05.2024
JUDGMENT :
a) Date of offence : 12.11.2017 b) Offence complained of: : U/s 279/338 IPC c) Name of complainant : Kewal Kishan d) Name of accused, : Mainder Pal his parentage, local S/o Dhani Ram & permanent residence R/o H.No. B-1707, Shastri Nagar Delhi e) Plea of accused : Pleaded not guilty f) Final order : Acquitted BRIEF FACTS OF CASE:
1. Briefly stated it is the prosecution's case that on 12.11.2017 at about 11:00 am at the main road behind Udham Singh School, Sarai Rohilla Delhi, the accused was driving his vehicle i.e. motorcycle bearing no. DL-GSAC-9017 make of Pulsar black colour, in a rash and negligent manner so as to endanger human life and personal safety of others. It is further the prosecution's case that the accused while driving the aforesaid vehicle in the aforesaid manner hit against the Scooty of the FIR no. 431/2017 State Vs. Mainder Pal Page no.1 of 12 complainant Kewal Kishan bearing no. DL4SDG-7770 and caused grievous hurt to him and therefore committed offences punishable (u/s 279/338) Indian Penal Code (hereinafter IPC).
2. On the basis of material filed along with the charge-sheet, notice u/s 279/338 IPC was framed against the accused vide order dated 11.04.2019 to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 4 witnesses. Vide a separate statement U/s 294 Cr.P.C. dated 01.11.2022 the accused admitted the FIR, certificate U/s 65B of Indian Evidence Act, DD No. 16A dated 12.11.2017, DD No. 35A dated 12.11.2017, mechanical inspection report of vehicles bearing no. DLSAC- 9017 and DL4SDG-7770, MLC no. 7043/17 of Kewal Krishan and medical opinion given by Doctor of Pantamid hospital.
4. PW1 Sh. Kewal Krishan deposed that on 12.11.2017 at about 11:00 am, he went to B-Block main market on his Scooty bearing no. DL-4SDG-7770 to purchase grocery items and on his way to the market, at the back side road of Shaheed Dharam Singh School, the accused Mahender Pal came and hit his vehicle. He further stated that due to the impact he fell down on his left side and his right leg got fractured. He further deposed that the offending vehicle is of make Bajaj Pulsor, colour black and having the registration no. DL-6SAC-9017. He further stated that the said vehicle had hit his vehicle from the right side and the offending vehicle fell on his right leg due to which his right leg got fractured. The witness further testified that some local persons gathered at the spot and someone made the PCR call. He further stated that after some time, PCR came at the spot and his father also came at the spot and he was taken to Hindu Rao Hospital (HRH) in the said PCR Van. He further stated that he was not admitted in the hospital and since his condition was deteriorating, he was admitted in a private hospital i.e pentamed Hospital by his father. He further stated that he remained admitted for about 4 days and it took about FIR no. 431/2017 State Vs. Mainder Pal Page no.2 of 12 8 months time to recover completely. He further stated that at that time, he was running a hardware shop situated at Shastri Nagar and was earning about Rs. 20,000/- to 25,000/- per month and was also doing MBA from IIMT Ghaziabad. He further proved his statement i.e.Ex.PW1/A, arrest memo of the accused Ex.PW1/B. The witness further stated that the bike of the accused hit against his scooty with a heavy force being in high speed from the front side. He further deposed that the accused was driving the vehicle in a negligent manner. The witness correctly identified the photographs of the scooty bearing no. DL-4SDG-7770 Ex.P1(Colly). The witness further correctly identified the accused. The identity of the offending vehicle bearing no. DL-GSAC-9017 was not disputed. The witness was cross-examined by Ld. Counsel for the accused.
5. PW-2 Ct. Narender deposed that on 12.11.2017 he was on emergency duty with IO ASI Rajkumar and on receiving DD no. 16A he along with IO went to the spot i.e. behind Udam Singh School, Shastri Nagar but did not find any injured there. He further stated that it was informed that injured has been shifted to HRH by PCR Van and he along with IO went to HRH hospital where MLC of injured was found but injured did not meet them as injured had left the hospital. He further stated that in the evening, they received DD No. 35A and went Pentamid Hospital where they met the injured and IO recorded the statement of injured regarding the accident and prepared a Tehrir which was handed over to him for registration of FIR. He further deposed that thereafter, he went to PS and got the present FIR registered and handed original tehrir and copy of FIR to IO. He further stated that IO recorded his statement. He further deposed that accused Mahender Singh was also found at the hospital and injured pointed towards him as the one responsible for the present incident. He further stated that the IO seized the Motorcycle bearing no. DL 6SAC 9017 and its documents, DL of accused vide seizure memo Ex. PW-2/B, PW-2/C and PW-2/D respectively. He further deposed that a pointing out memo i.e. Ex. PW-2/E was prepared. Accused was arrested and personally searched vide memo Ex. PW-1/B FIR no. 431/2017 State Vs. Mainder Pal Page no.3 of 12 and Ex. PW-2/F respectively. He correctly identified the accused. The identity of the offending vehicle was not disputed by the accused. The witness further stated that on 14.11.2017 he was present at PS with the IO when the scooty no. DL 4SDG 7770 was produced by father of injured Kewal Kishan which was siezed by the IO vide memo Ex. PW-2/A. He was cross-examined by Ld. Counsel for the accused.
6. PW-3 ASI Mohd Ibrahim deposed on 12.01.2017, he was posted as I/C in the PCR North Zone, Sugar -54 PCR and was on duty from 08:00 am to 08:00. He further stated that at around 11:10 am, he received the information regarding some quarrel behind Udham Singh School and injury to one boy. On the basis of the information he reached at the spot and the injured namely Kewal Krishan was taken to Hindu Rao for medical treatment. He further stated that one scooty and motorcycle were also there in accidental condition. He further stated that the IO recorded his statement. He was cross-examined by Ld. Counsel for the accused.
7. PW-4 ASI Raj Kumar deposed that on 12.11.2017 at around 11: 10 am, he received DD number 16A regarding some quarrel behind the Udham Singh School, Shastri Nagar and injury to one boy. On the basis of the DD entry he alongwith Ct. Narender went to the afore mentioned spot and found nothing there and during the enquiry they came to know that the injured has been taken to HRH by PCR. He further stated that thereafter they went to HRH hospital and he collected MLC bearing no. 7043/17 pertaining to injured / complainant Kewal Krishan from the hospital. He further stated that from the hospital they came to know that Kewal Krishan has gone to Pentamed hospital, Model town for treatment. He further stated that at around 05:00-05:30 pm, he received the information from Pentamed hospital that Kewal Krishan is admitted in the hospital where he recorded the statement of injured Kewal Krishan i.e. Ex.PWl/A. He further stated that thereafter he prepared the tehrir Ex. PW 4/A and same was handed over to the Ct. Narender for registration of FIR. He further stated that after some time Ct. Narender returned back at the spot and handed over copy of FIR and original tehrir to him. He further stated that he recorded FIR no. 431/2017 State Vs. Mainder Pal Page no.4 of 12 the statement of PCR official and Ct. Narender and searched for the motorcycle. He further stated that on 13.11.2017 he alongwith Ct. Narender went to Pentamed hospital to know the status of the injured Kewal Krishan where Kewal Krishan stated that the person who had hit him is present in the hospital and be pointed out towards him. He further stated that he asked the name of the said person who revealed his name as Maninder Pal and he arrested the accused and personally searched the accused vide memos Ex.PWl/B and Ex. PW2/F respectively. He further stated that he recorded disclosure statement of the accused Ex.PW 4/B and seized the offending vehicle i.e motorcycle bearing no. DL-6SAC-9017 vide seizure memo Ex.PW2/B and further seized the document of motorcycle and DL of the accused vide seizure memos Ex.PW2/C and Ex.PW2/D respectively. He further stated that he prepared a pointing out memo i.e. Ex.PW2/E, at the instance of the accused. He further stated that on 14.11.2017, brother of injured produced scooty which was hit by the accused with his motorcycle and he seized the same vide seizure memo already Ex.PW2/ A. He further stated that he got both the vehicles mechanically inspected through mechanical inspector Arvidner Singh and the mechanical inspection reports i.e. Ex.P6 and Ex.P7 were prepared. He further deposed that he deposited MLC of injured in the Pentamed hospital and further served notice u/s 133 MV Act upon accused i.e. Ex.PW4/C which was replied to by the accused and the said reply is Ex.PW4/D. He further stated that he also prepared site plan of the spot at the instance of injured Ex.PWl/D and recorded the statement of witnesses and filed the charge-sheet on the completion of investigation. He correctly identified the accused. He further identified the photographs of scooty bearing no. DL4SDG-7770 Ex.Pl (Colly). The identity of the offending vehicle i.e pulsor motorcycle black colour bearing no. DL6SAC-9017 was not disputed by the accused. Witness was cross-examined by the Ld. Counsel for the accused.
8. Thereafter, PE was closed and matter was fixed for the statement of the accused U/s 313 Cr.P.C. The statement of the accused U/s 313 Cr.P.C was recorded FIR no. 431/2017 State Vs. Mainder Pal Page no.5 of 12 on 15.03.2024 wherein the accused has stated that he did not have any fault. He further stated that the complainant overtook the rickshaw due to which the complainant hit his bike. He further stated that he was falsely implicated in the present case. He further stated that he wishes to lead DE.
9. On 10.04.2024 the accused stated that he did not wish to lead any DE and vide a separate statement the accused closed his DE. Hence the matter was fixed for final arguments.
10. Sh. Anish, Ld. APP for the State submits that the testimony of the witnesses proves the guilt of the accused beyond reasonable doubt. Hence it is submitted that the prosecution has been able to prove its case beyond reasonable doubt. Per Contra, Ld. Counsel for the accused has argued that the accused has been falsely implicated in the present matter and the prosecution has not been able to prove its case beyond reasonable doubt.
11. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
"i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused.
It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any less.
ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt."
FIR no. 431/2017 State Vs. Mainder Pal Page no.6 of 12
12. In the present case the accused has been charged with the offences punishable U/s 279/338 of IPC. Let us proceed to examine whether the prosecution has been able to prove that the accused has committed an offence U/s 279/338 IPC. Since the accused has been charged with the offence under Section 279 of the Indian Penal Code, 1860, it was for the State to prove that:
a) that the accused was driving a vehicle;
b) he was driving the said vehicle on a public way;
c) he was driving the vehicle in a rash and negligent manner; and
d) he was driving the vehicle in such a manner so as to endanger human life, or to be likely to cause hurt or injury to any other person.
13. Further, in order to prove the offence under Section 338 of Indian Penal Code, 1860, it was for the State to prove that the victim Kewal Krishan sustained grevious hurt due to rash or negligent act of accused so as to endanger human safety and personal life of others.
14. Hence, the prosecution was required to prove the following facts:
a the identity of the accused being the driver of the offending vehicle;
b the factum of an accident having been caused by the offending vehicle;
c the accident to be result of the rash and negligent driving of the accused at a public place;
d grevious hurt to Kewal Krishan to have resulted from such rash and negligent act of the accused.
15. In order to prove that the accused was the driver of the offending vehicle and the accident was caused by the said vehicle, the prosecution has examined the complainant himself. PW-1/complainant has stated that on the date of incident FIR no. 431/2017 State Vs. Mainder Pal Page no.7 of 12 offending vehicle bearing registration no. DL-6SAC-9017 had hit his vehicle. The accused has no where disputed the identity of the offending vehicle and his identity as the driver of the said offending vehicle. Even in his statement U/s 313 Cr.P.C, the accused has stated that he did not have any fault and the complainant overtook rickshaw and hit his bike. In the given circumstances, this Court is of the opinion that the prosecution has been able to establish that the accused was the driver of the offending vehicle and the accident was caused by the offending vehicle.
16. At this stage, it is pertinent to mention that the fact that the injured/ complainant sustained grevious hurt has been proved as the MLC bearing no. 7043/17 (Ex. P8) has been admitted by the accused. A perusal of the aforesaid MLC clearly shows that the examining doctor has opined the nature of injuries sustained by the complainant to be grevious.
17. Now let us proceed to examine whether the prosecution has been able to establish that the accused was driving the said vehicle in a rash and negligent manner in a public place. The meaning of rash and negligent has been succinctly explained in Empress of India v. Idu Beg 1881 (3) All 776 24 as under:
"criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence 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 FIR no. 431/2017 State Vs. Mainder Pal Page no.8 of 12 charge has arisen, it was the imperative duty of the accused person to have adopted."
18. Hence the prosecution was required to either prove that the accused failed to exercise reasonable and proper care towards the complainant or to prove that the act of the accused was done with recklessness or indifference towards the consequences. In order to prove the negligence/rashness the prosecution has only examined the complainant /injured himself. However, for the reasons stated below the prosecution has failed to prove negligence/rashness on the part of the accused.
19. The complainant in his examination-in-chief has stated that " the bike of the accused hit against my scooty with a heavy force being in high speed from front side. At that time, the accused was driving in negligent manner." The complainant in the same examination-in-chief has stated that " the said vehicle had hit my vehicle from the right side and the offending vehicle fell on my right leg". A perusal of the aforesaid statements clearly shows that there is a material contradiction in the testimony of the complainant regarding the manner in which the accident took place.
20. Further, the complainant has merely made a bald statement that the accused was driving the vehicle in a negligent manner. Nothing has been stated by the complainant regarding the surrounding circumstances from which it can be gathered that the accused was driving the said vehicle in the rash or negligent manner. The complainant has only stated that the accused was driving the offending vehicle at a very high speed. No approximate speed of the accused has been mentioned by the complainant.
21. In addition, on a perusal of photographs of the scooty of the complainant i.e. vehicle bearing no. DL-4SDG-7770 Ex. P1(Colly.), it is observed that the front side of the vehicle is fairly intact and has received some minor scratches. Further, the mechanical inspection report of the aforesaid scooty i.e. Ex. P7 shows that the after the incident the vehicle had sustained only scratches on the front left side of the body FIR no. 431/2017 State Vs. Mainder Pal Page no.9 of 12 and the headlight visor of the scooty has broken. In the given circumstances, it can be safely assumed that the offending vehicle did not hit the scooty of the complainant with a heavy force which would have other wise resulted in greater damage to the said scooty.
22. At this juncture, this Court deems it fit to refer to judgment of Hon'ble High Court of Delhi in Abdul Subhan v. State (NCT of Delhi), 2006 SCC OnLine Del 1132 wherein it was observed as under:
As observed in Badri Prasad (supra) the essential ingredients of Section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As regards the offence punishable under Section 304A IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. As observed in Badri Prasad (supra), to establish the offence either under Section 279 or Section 304A, the commission of a rash and negligent act has to be proved. The only distinction being that in Section 279, rash and negligent act relates to the manner of driving or riding on a public way while the offence under Section 304A extends to any rash and negligent act falling short of culpable homicide. As correctly observed by the learned judge, the rashness or negligence which needs to be established is something more than a mere error of judgment. There is also a distinction between rashness and negligence in that, rashness conveys the idea of doing a reckless act without considering any of its consequences whereas negligence connotes want of proper care.
The case in Badri Prasad (supra) was one, where, akin to the facts of the present case, apart from a bare statement made by a witness that the vehicle was being driven at a high-speed, there was no attempt made to establish that there was any rash and/or negligent act on the part of the driver of the vehicle. In these circumstances the court observed: --
FIR no. 431/2017 State Vs. Mainder Pal Page no.10 of 12 In the case at hand, I find that except a bare statement made by PW 2 that the vehicle was being driven in a high-speed, no attempt has been made to establish that there was any rash and/or negligent act on the part of the driver-accused. Therefore in my considered opinion prosecution has failed to establish that death was occasioned by either rash and/or negligent driving of the vehicle or any negligent act of accused so as to attract the provisions of Section 279 and/or 304A IPC. Accordingly, conviction and consequential sentences are set aside and the accused is acquitted of the charges. Bail bonds be discharged. The criminal revision is allowed.
The present case is on a similar footing. Apart from the allegation of having driven the truck at a high-speed, which itself is an unclear expression, there is nothing on record to establish that the petitioner drove the vehicle rashly and/or negligently or did any act which would amount to a rash and/or negligent act. Clearly, therefore, the petitioner is not liable to be convicted under the provisions of Section 279 and 304A IPC. The courts below have committed a grave error in convicting the petitioner and this error needs to be corrected in revision. The impugned order is, therefore, liable to be set aside and the petitioner is entitled to an order of acquittal.
23. Considering the aforesaid law laid by Hon'ble High Court and the fact that nothing has been placed on record to show the rashness and negligence on the part of the accused, this Court is of the opinion that the prosecution has not been able to prove that the accused was driving his vehicle in a rash and negligent manner.
24. It is a cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every FIR no. 431/2017 State Vs. Mainder Pal Page no.11 of 12 reasonable doubt in the prosecution story and any such reason doubt in the prosecution case entitles the accused to acquittal.
25. Since in the present case the prosecution has failed to prove that the accused was driving the said vehicle in a rash and negligent manner therefore, the accused stands acquitted for the offence punishable U/s 279/338 IPC.
Digitally signed26. File be consigned to record room. by MANUJ KAUSHAL MANUJ Date:
KAUSHAL 2024.05.17 17:28:14 +0530 PRONOUNCED IN THE OPEN COURT (MANUJ KAUSHAL) TODAY ON 17th MAY, 2024 MM-04 (CENTRAL), DELHI FIR no. 431/2017 State Vs. Mainder Pal Page no.12 of 12