Delhi District Court
State vs Dinesh Kumar on 4 July, 2024
IN THE COURT OF Ms. VIJAYSHREE RATHORE, JUDICIAL
MAGISTRATE FIRST CLASS, SOUTH DISTRICT, SAKET
COURTS, DELHI
STATE VS Dinesh Kumar
FIR No. : 197/2018
PS : Hauz Khas
U/s : 279/338 IPC
JUDGMENT
A. Sl. No. of the Case 1221/2020 DLST020067342020 B. Date of Commission of offence 26.07.2018 C. Date of FIR 27.07.2018 D. Date of charge-sheet 16.03.2020 E. Name of the complainant Kirti Singh F. Name of the accused persons, their Dinesh Kumar S/o Ram Narayan, R/o T-7, parentage and residence Kholi Camp, Village Khizrabad, New Delhi.
G. Offence complained of or proved 279/338 IPC
H. Date of framing of charges 27.03.2023
I. Date of commencement of evidence 08.08.2023
J. Plea of the accused Pleaded not guilty
State Vs. Dinesh Kumar FIR No. : 197/2018 PS Hauz Khas
U/s 279/338 IPC Page no.1 of 10
K. Date on which judgment is reserved 03.07.2024
L. Final Order Acquitted
M. Date of Judgment 04.07.2024
Brief facts of the present case
1. The case of the prosecution arises out of the complaint dated 27.07.2018 of the complainant that on 26.07.2018 he was going to his house and at about 9 pm when he reached near C-44 South Ex. Part II, a car driver came driving his car at a high speed &hit on his leg due to which he fell down. The driver of the offending car deboarded from his car and told his name as Dinesh Kumar and also told that he will take him to the hospital. Meanwhile, he fled away from the spot. The offending car number was PB02CV2458. He called his employer Rudresh and he admitted in AIIMS Trauma Centre. Thereafter IO ASI Satya Pal was marked the DD no. 35A pertaining to an MLC from AIIMS Centre where he alongwith Ct. Arjun went and met the victim who told that he cannot give the statement at that time. Thereafter they returned back to PS and came to know that victim is moved to MAX Hospital. The victim gave his statement. On the basis of complaint, FIR was registered. Statement of witnesses were recorded. The offending car and relevant documents were seized and its mechanical inspection was conducted. The medical treatment of victim was conducted and State Vs. Dinesh Kumar FIR No. : 197/2018 PS Hauz Khas U/s 279/338 IPC Page no.2 of 10 MLC was obtained. Notice u/s 133 MV Act was also given to owner of offending vehicle in which he stated that accused Dinesh Kumar was driving the offending vehicle on the day of incident. As the injury was found grievous, section 338 IPC was added. Accused was arrested and thereafter released on police bonds. After completing the investigation chargesheet was filed before the court.
Framing of Noitce
2. After compliance of Section 207 Cr.P.C., vide order dated 27.03.2023 notice was framed against accused Dinesh Kumar for the offence u/s 279/338 IPC to which the accused pleaded not guilty and claimed trial.
Prosecution Evidence
3. In support of its case, the prosecution had examined four one witnesses PW1 Kirti Singh, PW2 is HC Arjun, PW3 is ASI Satya Pal and PW4 is Ankush Seth
4. Since the accused had admitted the factum of documents (without its content) u/s 294 Cr.P.C. i.e. copy of FIR, MLC of injured Kirti Singh dt. 26.07.2018 (AIIMS Trauma Centre), X-ray report dt. 26.07.2018, MVI Report of vehicle no. PB02CV2458 dt. 31.07.2018 and DD No. 35A dt/ 26.07.2018 and DD no. 2A dt. 27.07.2018, witness MVT T.U. Siddquie, Dr. Mohd State Vs. Dinesh Kumar FIR No. : 197/2018 PS Hauz Khas U/s 279/338 IPC Page no.3 of 10 Ali Siddiqui, SI Chaggan Lal, HC Vijay Pal, DO/W. ASI Saranjeet Kaur and Dr. A. Mithlesh are dropped from the list of witnesses.
5. PW1 Kirti Singh had deposed in his testimony that on 27.07.2018 at about 09.15 pm at South Extn. Colony a car hit him from behind because of which he got injured and bone from his leg was visible. He had further deposed that the driver had left the spot alongwith the offending vehicle. He had further deposed that guards from the nearby houses had come to his aid and had called his employer. He had further deposed that his employer came there and took him to AIIMS Trauma Centre and thereafter he was shifted to MAX Hospital at 4 am. He had further deposed that he was operated in his leg. He had further deposed that the offending vehicle was of Punjab Registration and had 2458 in the end of its registration number. He had further deposed that police officials had visited him at AIIMS Trauma centre and at MAX hospital also. He had further deposed that he had signed on a statement when the police officials visited him at MAX hospital.
6. PW3 ASI Satya Pal had deposed in his testimony that on 26.07.2018 he was on night emergency duty alongwith Ct. Arjun and in the morning DD no. 2A was marked to him pertaining to an MLC from AIIMS Trauma Centre. He had further deposed that they had gone to the AIIMS Trauma Centre where they met the victim. He had further deposed that the victim told him that he cannot give State Vs. Dinesh Kumar FIR No. : 197/2018 PS Hauz Khas U/s 279/338 IPC Page no.4 of 10 the statement at that time and thereafter they returned back to the PS. He had further deposed that thereafter they again went to AIIMS Trauma Centre where they got to know that the victim had been moved to MAX hospital. He had further deposed that thereafter they went to MAX hospital where they met the victim and victim gave the statement to him. He had further deposed that thereafter they returned back to PS. He had further deposed that he prepared the tehrir on the statement of the victim Kirti vide Ex.PW3/A and gave the same to DO and FIR was registered. He had further deposed that the owner of offending vehicle came to the PS and met him and produced DL, RC of the car and insurance. He had further deposed that he seized the DL vide Ex.PW2/A, RC vide Ex.PW2/B and insurance vide Ex.PW2/C. He had further deposed that notice u/s 133 MV Act was given to the owner of offending vehicle vide Ex.PW3/B. He had further deposed that owner produced the driver of offending vehicle who was arrested by him vide arrest memo Ex.PW2/D and personal search of accused was conducted vide Ex.PW2/E. He had further deposed that accused was released on bail as he was charged with bailable warrants. He had further deposed that he seized the offending vehicle vide Ex.PW2/F. He had further deposed that he got the mechanical inspection of the vehicle done on 31.07.2018. He had further deposed that he obtained the opinion on the MLC on 10.08.2018. Witness had correctly identified the photographs of offending vehicle Ex.P1 (colly). PW2 HC Arjun had also deposed the same in his testimony.
State Vs. Dinesh Kumar FIR No. : 197/2018 PS Hauz Khas
U/s 279/338 IPC Page no.5 of 10
7. PW4 Ankush Seth had deposed in his testimony that he was the owner of vehicle of make Hyundai Creta bearing no. PB02CV2458. He had further deposed that at the time of alleged incident in the present case, the car was being driven by accused as accused was a driver in his office. He had further deposed that he got the vehicle released on superdari by executing panchnama vide Ex.PW4/A. Witness had correctly identified the accused as well as the photographs of offending vehicle Ex.P1 (colly).
Statement of accused
8. The examination of accused u/s 313 r/w 281 Cr.P.C. was recorded in which accused stated that he is innocent. He had been falsely implicated in the case. He was not driving the offending vehicle at the time of alleged incident. He had nothing to do with the present case.
9. Accused did not lead defence evidence in his favour. Final arguments addressed by the Ld. APP for State and Ld. Counsel for accused were heard and case file was perused.
10. It is the allegations against the accused that when complainant was going through C44 South Ex. Part II, accused came driving offending vehicle car bearing no. PB02CV2458 in rash or State Vs. Dinesh Kumar FIR No. : 197/2018 PS Hauz Khas U/s 279/338 IPC Page no.6 of 10 negligent manner and had hit the victim Kirti Singh due to which he sustained grievous injury in his leg. In this regard, PW1 Kirti Singh had had deposed that on 27.07.2018 while he was returning back from his office, at about 09.15 pm at South Extn. Colony a car hit him from behind because of which he got injured and bone from his leg was visible. He had further deposed that the driver had left the spot alongwith the offending vehicle. He had also deposed that offending vehicle was of Punjab Registration and had 2458 in the end of its registration number. During his examination the witness had failed to identify the offending vehicle with certainty on showing the panchnanma Ex.P1 Colly. He also failed to identified the accused as the one who had caused the accident. He had merely stated that he cannot tell whether the said accused was driving the offending vehicle or not. He also failed to recall the make and model of the offending vehicle. Though complainant had failed to identify the accused before the Court and the offending vehicle in panchnama Ex.P1, however he had clearly disclosed the offending vehicle of Punjab Registration with 2458 at its end. PW4 Ankush Seth who was the owner of offending vehicle make Hyundai Creta bearing no. PB02CV2458 had deposed that at the time alleged incident the car was being driven by accused as he was the driver in his office. His testimony has not been controverted in the cross- examination. Thus, it is clear from record that accident had occurred from vehicle no. PB02CV2458 and accused was driving the said vehicle at the time of accident. Thus, the identity of accused is State Vs. Dinesh Kumar FIR No. : 197/2018 PS Hauz Khas U/s 279/338 IPC Page no.7 of 10 undisputed in the case. The injury to victim in the accident is also proved in the case as the MLC Ex. A2 and X-ray report dt. 26.07.2018 of injured Ex.A3 is not disputed by the accused in admission u/s 294 Cr.P.C.
11. Rashness or negligence are two different terms. In the case of 1953 All LJ 689 : (AIR 1954 All 186) it was held:
"Rashness and negligence are not the same things. Mere negligence cannot be construed to mean rashness. There are degrees of negligence and rashness, and, In order to amount to criminal rashness or criminal negligence, one must find that the rashness has been of such a degree as to amount to taking hazard knowingly that the hazard was of such a degree that Injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences, criminal negligence is a gross and culpable neglect, that is to say, a failure to exercise that care and failure to take that precaution which, having regard to the circumstances. It was the imperative duty of the individual to take. Culpable rashness is acting with consciousness that mischievous consequences are likely to follow although the individual hopes, even though he hopes sincerely, that such consequences may not follow. The criminality lies in not taking the precautions to prevent the happening of the consequences in the hope that they may not happen. The law does not permit a man to be uncautious on a hope however earnest or State Vs. Dinesh Kumar FIR No. : 197/2018 PS Hauz Khas U/s 279/338 IPC Page no.8 of 10 honest that hope may be."
12. Now, what has to be seen whether accused had caused the accident by driving his vehicle in "rash or negligent manner" or not. PW1 Kirti Singh had deposed that on 09.15 pm at South Ex. Colony a car hit him from behind because of which he got injured and bone from his leg was visible. In his testimony PW1 complainant Kirti Singh had nowhere stated that accused came driving the alleged offending vehicle at the high speed at the time occurrence of incident. He had also nowhere deposed that accused came driving offending vehicle in zig-zag or in rash manner such as to cause the accident. Since he was hit from behind, in all possibility he must not have seen the manner in which accused was driving the offending vehicle. He had clearly stated in his testimony that the guard from the nearby houses had come to his aid and called his employer. No such guard of his locality or any other eye witness had been examined who could depose the manner in which the accused was driving the offending vehicle at the time of incident. Admittedly the place of incident is South Ex. Colony where public persons or residents must be present. Thus, there is no testimony of eye witness on the record who had seen the accident happening. IO had not even interrogated them during investigation. Thus, in the absence of any specific averments, it cannot be proved that accused had caused the accident by driving offending vehicle in rash or negligent manner. The sole testimony of complainant is not sufficient to establish any State Vs. Dinesh Kumar FIR No. : 197/2018 PS Hauz Khas U/s 279/338 IPC Page no.9 of 10 rashness or negligence.
13. It is well settled that in a criminal trial the burden of proof is on the prosecution to prove its case beyond reasonable doubt. Any contradiction or iota of proof in favour of accused can completely dismantle the case of prosecution. In the present case there are no cogent material available on record to suggest that accused was driving his car bearing no. PB02CV2458 in rash or negligent manner and had hit the complainant due to which he sustained grievous injury. There is also no material on record to suggest rashness or negligence on part of accused.
Conclusion & Decision
14. In these circumstances and in view of the aforementioned discussion, I hold that the prosecution has failed to prove its case against the accused Dinesh Kumar beyond reasonable doubts. Accused Dinesh Kumar is accordingly acquitted for offence u/s 279/338 IPC.
Announced in the open court (VIJAYSHREE RATHORE) In Delhi on 04.07.2024 JMFC-06,SOUTH/SAKET DELHI State Vs. Dinesh Kumar FIR No. : 197/2018 PS Hauz Khas U/s 279/338 IPC Page no.10 of 10