Delhi District Court
State vs Amarnath on 23 November, 2023
IN THE COURT OF SH. AKSHAY SHARMA, METROPOLITAN MAGISTRATE-02, SOUTH EAST, SAKET COURTS, DELHI. FIR No. 169/2017 PS. OIA U/s. 279/338 IPC STATE VS AMARNATH JUDGMENT
A. SL. NO. OF THE CASE : 387/02/17 B. DATE OF INSTITUTION : 16.09.2017 C. NAME OF THE : Sh. Ramdev Giri COMPLAINANT S/o Sh. Jaikant Giri D. NAME OF THE : Amarnath ACCUSED S/o Sh. Medai E. OFFENCE COMPLAINED OF : U/s 279/338 IPC F. PLEA OF ACCUSED : Pleaded not guilty. G. FINAL ORDER : Acquitted H. DATE OF COMMISSION OF OFFENCE : 10.05.2017 I. DATE OF FINAL ARGUMENTS : 07.11.2023 J. DATE OF SUCH ORDER : 23.11.2023 FIR No. 169/2017 STATE VS AMARNATH Page no.1 BRIEF FACTS
1. Briefly stated facts of the instant case are that when on 10.05.2017 at around 07:15 PM the complainant/injured was crossing the road to go to the temple, then the accused who was riding the offending motorcycle bearing no. UP42AA5609 hit the complainant, due to which the complainant sustained grievous injuries. In this accident the accused also sustained injuries and both the accused and the complainant were taken to hospital in CAT Ambulance. On the basis of the statement of the complainant, the present case was registered. Notice u/s 133 MV Act was served to the owner of the offending vehicle. Efforts to trace any CCTV footage was made but none was found. After the reply to the notice u/s 133MV Act by the registered owner, the present accused was interrogated and arrested. Thereafter, the result on MLC was obtained, the offending vehicle was seized and its mechanical inspection was conducted. After completion of remaining aspects of investigation, the present charge- sheet u/s 279/338 IPC was filed for judicial verdict.
2. Cognizance in the instant case was taken on 16.09.2017. compliance of Section 207 CrPC was also done on the same date. On 03.05.2018, after hearing arguments on the point of charge, notice u/s 279/338 IPC was framed against the accused, to which he pleaded not guilty and claimed a trial.
3. Thereafter, case was put for prosecution evidence and the following prosecution witnesses were examined.
4. PW1 Ramdev Giri, was examined, he in his examination in FIR No. 169/2017 STATE VS AMARNATH Page no.2 chief deposed that he does not remember the exact date of the incident but It might be 10.05.2017. He further submitted that it was around 07:00-07:15 PM he was crossing the road from OIA Phase-1 to OIA Phase -2 near Majdoor Kalyan Camp. It was red light and many people were crossing the road so he also crossed the road. PW1 further submitted that one motorcycle came at a high speed despite there being red signal and hit against his left leg. Further he submitted that because of the impact of incident he fell down and he raised noise and accused was apprehended by public persons. The last digits of offending motorcycle were 5609. PW1 further stated that the accident occurred due to negligence and mistake of accused as he was driving the motorcycle at a high speed in spite of there being red signal. PW1 further submitted that the name of accused driver was disclosed as Amarnath. He was taken to hospital in Ambulance where he was medically treated. Ex.PW1/A bearing his signature at point 'A' is his complaint given to police regarding the incident.
He further submitted that person who was driving the motorcycle was present in the court that day and the witness correctly pointed out and identified him.
Further he submitted that the can identify the offending vehicle, if shown to him. However, Ld. Defence counsel had submitted that he does not wish to dispute the identity of offending vehicle.
5. PW2 Balram Jha was examined, he in his examination in chief deposed that on 10.05.2017 at about 07:30 PM, he received a call from his friend namely Shanu. He informed him that the Pandit Ji of FIR No. 169/2017 STATE VS AMARNATH Page no.3 manidr met with an accident in front of mandir. Upon the same, he reached at the spot immediately in 02 minutes. Further he submitted that after about 10 minutes, CAT ambulance reached at the spot. Thereafter, he alongwith pandit ji and accused Amarnath reached at AIIMS Trauma Centre. He further inquired Amarnath for his address and he informed JJ Colony, Tigri. Further he submitted that he misplaced the paper wherein he had noted down his address. Accused correctly identified by the witness in the instant court.
6. PW3 Ct. Vinit Kumar was examined, he in his examination in chief deposed that on 10.05.2017 he was posted at PS OIA as a constable. On the said date, IO received a call regarding accident upon which he alongwith IO went to B-391, Okhla Phase-I upon the road from underpass towards Crown Plaza. He further submitted that he found one motorcycle bearing no. UP-42AA-5609 at the spot. They were informed that CAT ambulance had already shifted the injured to the hospital. Thereafter, IO left him at the spot and went to the hospital. Thereafter, IO went back at the spot and took the motorcycle to the PS. The said motorcycle was seized by the IO on the next day vide seizure memo Ex.PW3/A bearing his signature at point 'A'.
PW3 further submitted that on 19.05.2017 accused came to the PS alongwith the documents of the vehicle. The said documents were seized by the IO vide seizure memo Ex.PW3/B bearing his signature at point 'A'. Further, DL of the accused was seized vide seizure memo Ex.PW3/C bearing his signature at point 'A'. He further submitted that accused Amarnath was arrested by the IO vide arrest memo Ex.PW3/D FIR No. 169/2017 STATE VS AMARNATH Page no.4 bearing his signature at point 'A'. IO further sent him to Faridabad for verification of the said documents and upon verification, the documents were found to be correct. At that stage, 07 photographs of the offending vehicle were shown at the witness and witness correctly identified the same. Same are Ex.P1 (colly). Accused was present in the court that day and was correctly identified by the witness.
7. PW4 T.U. Siddiqui was examined, he in his examination in chief deposed that he is a government approved surveyor and loss assessors and working for more than 44 years independently. He further submitted that on 04.06.2017 on the request of ASI Ashok Kumar, PS OIA, New Delhi, he had inspected Bajaj Platina motorcycle black colour bearing no.UP42AA5609 and submitted his detailed report with the fresh damages Ex.PW4/A bearing his signature and seal at point 'A'.
8. PW5 ASI Ashok Kumar was examined, he in his examination in chief deposed that on 10.05.2017 he was posted as ASI at PS OIA. On that day he was posted in the emergency duty along with Ct. Vinit. He further submitted that at around 07:15 PM he was marked DD no.47A pertaining to PCR call. He along with Ct. Vinit went to the spot where they found a bike in an accidental condition. They could not find accused or injured at the spot. PW5 further submitted that upon inquiry from public persons it was revealed that an ambulance had taken the injured to the hospital. He was marked DD No.48A pertaining to an injury qua accident from AIIMS trauma center. He left Ct. Vinit at the spot and went to AIIMS trauma center. Further he submitted that he met the injured in the emergency who told him that he was not in the FIR No. 169/2017 STATE VS AMARNATH Page no.5 condition to give the statement and also the MLC of the injured was not ready. Injured also informed him that the driver of the offending vehicle was also slightly injured and he was brought to the hospital in the same ambulance as him and his treatment was also going on there. He could not locate the accused at the hospital. He further submitted that he returned back to the spot and he brought the aforesaid bike bearing No.UP42AA5609 to the PS with the help of Ct. Vinit in a reddy.
PW5 further submitted that on the next day, he collected the MLC of the accused and the injured. On the MLC of the accused it was mentioned discharge and on the MLC of the injured it was referred for further treatment at another govt. hospital. Thereafter, he tried to find the injured at the Safdarjung hospital where he could not locate him. Thereafter, he went to the address of the injured mentioned on the MLC and he recorded his statement vide already Ex.PW1/A signed by him at point B. Thereafter, he returned back to the PS and he prepared the tehrir and presented before the duty officer for registration the FIR. Thereafter, he went to the spot and make the site plan vide already Ex.PW1/B signed by him at point A. He further submitted that on 19.05.2017, he gave notice u/s 133 M.V. Act to the registered owner of the offending vehicle vide Ex.PW5/A signed by him at point A. Upon which the registered owner informed him that the said offending vehicle i.e. the bike was being driven by her husband on the date of accident. Thereafter, the accused appeared. Accused was present in the court that day and was correctly identified by the witness. He further submitted that he arrested the FIR No. 169/2017 STATE VS AMARNATH Page no.6 accused vide arrest memo already Ex.PW3/D and informed him that he was being charged with bailable offense and to arrange of surety. After furnishing the security the accused was released on bail. He further submitted that he seized the driver license of the accused vide already Ex.PW3/E signed by him at point A. He seized the RC and insurance of the offending vehicle vide already Ex.PW3/B signed by him at point A. He further submitted that on 22.05.2017 he took the opinion of the MLC and on the MLC of injured it was opined by the doctor as grievous and therefore, he added Section 338. Thereafter, he got the documents pertaining to the accused and offending vehicle verified. He got the mechanical inspection of the offending vehicle on 04.06.2017 vide already Ex.PW4/A. He further submitted that on 09.06.2017 the accused got the vehicle released on superdari. Thereafter he complete the charge- sheet and filed before the court.
9. PW6 Bhunesh Kumar Sharma was examined, he in his examination in chief deposed that on 10.05.2017 he was working as a MRT, at AIIMS Trauma center. Further, he submitted that on that day MLC no.500022635 and MLC 500022636 were sent to the Medical Records Department. Same were signed by Dr. Arnab Dass. He had seen Dr. Arnab Dass singed during his tenure at AIIMS Trauma Center.
On that day he brought certified copy of Discharge Summary of the aforesaid MLCs. Same are Ex.PW6/A. He also brought the certified copy of MLC no.500022635 same are Ex.PW6/B. Same are signed by Dr. Arnab Dass at point A. He also brought certified copy of relevant page of joining and relevant page of joining and relieving FIR No. 169/2017 STATE VS AMARNATH Page no.7 register same is Ex.PW6/C. Same is signed by Dr. Arnab Dass at point A. At that stage, the witness was shown MLC no.500022636/10 May 2017 same is Ex.PW6/D. The witness correctly identified the signatures of Dr. Arnab Dass at point A,B and C.
10. PW7 Dr. Anisha Garg was examined, she in her examination in chief deposed that she had joined AIIMS hospital in the month of November, 2020. At that stage, the witness was shown the x-ray report. Ex.PW7/A. The x-ray report signed by Dr. Vaibhav Nichat at point A. As per the report the tibia and fibula of the left leg are fractured. At that stage, the witness was shown the x-ray of the injured. As per the x-ray tibia and fibula are fractured. X-ray are Ex.PW7/B (Colly).
11. After the examination of all the material prosecution witnesses, prosecution evidence was closed and statement of the accused u/s 281 r/w Section 313 CrPC was recorded in which he stated that he had not jumped the red light, the red light was at least 300-400 mtrs behind, it was dark and there was no zebra crossing. The complainant was crossing the road in a hurry. Complainant was firstly hit by a car and since he was immediately behind that car, therefore, in order to save the complainant he immediately applied the brakes due to which his bike also skid. Accused stated that complainant was not hit by his vehicle and he only called the ambulance. Accused preferred not to lead any defence evidence.
12. Matter was thereafter listed for final arguments. Ld. APP for FIR No. 169/2017 STATE VS AMARNATH Page no.8 the State submitted that the testimony of all the material prosecution witnesses corroborate in material particulars and hence accused is liable to be convicted. Per contra, Ld. Defence counsel pointed out certain contradictions in the testimony of the prosecution witnesses and submitted that case of the prosecution cannot be said to be proved beyond reasonable doubt.
13. DISCUSSION OF LAW, EVIDENCE AND DECISION THERE ON.
The question to be decided in the instant case is that whether the prosecution has been able to prove beyond reasonable doubt the essential ingredients of the offences with which the accused has been charged, i.e. Section 279,338 Indian Penal Code 1860. For proving the offence under Section 279 read with Section 338 IPC the prosecution must establish that :
1.) The accused was driving the vehicle in a rash or negligent manner on a public way as to endanger human life or to cause injury or hurt to any person.
2.) Due to such driving, the accused caused grievous injuries to the complainant.
14. In the matter titled as Rathnashalvan v. State of Karnataka AIR 2007 SC 1064, the Hon'ble Supreme Court of India observed that :
"7. ...Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend FIR No. 169/2017 STATE VS AMARNATH Page no.9 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.
15. Also, the Hon'ble Apex Court in the Judgment titled as Mohd. Aynuddin Miyam vs. State of A.P . [(2000)7 SCC 72] held that:
FIR No. 169/2017 STATE VS AMARNATH Page no.10 "9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
16. Coming now to the facts of the case at hand, the culpability of the Accused shall be decided on the basis of the parameters mentioned above. For that purpose, the court will have to find answers to certain questions which bring forth the truth of the matter i.e. whether the Accused was driving the offending vehicle at the time of the commission of alleged offences, whether the Accused was rash and negligent in his conduct and whether due to the rash and negligent conduct of the Accused injuries were caused to other persons.
17. The identity of the accused is not disputed in the instant case. Further from the testimony of the complainant, the notice u/s 133 MV Act and its reply by the registered owner of the offending vehicle and the statement of the accused recorded u/s 281 CrPC r/w Section 313 CrPC, there is no doubt in concluding that indeed the accused was driving the offending motorcycle at the time of commission of the offence.
18. The entire case of the prosecution depends on the factor that FIR No. 169/2017 STATE VS AMARNATH Page no.11 whether the accused was rash or negligent in his conduct. Needless to say that the prosecution had to establish this conduct beyond reasonable doubt. The most vital witness for the prosecution to prove the said ingredients was the complainant/ injured itself as the remaining witnesses are not the eye witnesses and they have come into picture after the commission of offence.
19. The aspersion casted on the accused qua the ingredients of rashness or negligence in the testimony of the complainant i.e., PW1 Ramdev Giri is that the accident occurred due to the negligence and mistake of the accused as the accused was driving the motor-cycle at a high speed inspite of there being a red signal. The complainant in his cross-examination has stated that there was zebra crossing at the spot and the red light was about 50 yards from the spot. PW1 has also stated that the site plan was also prepared in his presence by the police.
20. The testimony of the complainant becomes doubtful when read in light in the testimony of PW5 IO/ ASI Ashok Kumar, as PW5 has categorically admitted in his cross-examination that there was no zebra crossing at the place where the accident occurred, PW5 had also stated that the red-light is approximately 200 mtrs before the place of accident. Moreover, PW5 also admits that since the injured was not in the condition to come to the spot to get the site plan made, therefore, site plan was made by PW5 himself and later on got verified by the complainant.
21. It is observed that there are inherent contradictions in the testimony of 02 most vital witnesses of the prosecution i.e., the complainant and the IO regarding the aspect of zebra crossing and also FIR No. 169/2017 STATE VS AMARNATH Page no.12 the position of the red-light. The site plan annexed with the charge-sheet does not show any zebra crossing or any red light. Needless to say that crossing of road by the complainant through a zebra crossing and jumping of red light by the accused were essential aspects to determine the rashness or negligence on the part of the accused as they would have highlighted the degree of care adopted by both the complainant and the accused in their conduct.
22. In light of the above discussion, this court is of the opinion that the prosecution has not been able to establish its case beyond reasonable doubt as there are material contradiction in the testimony of the IO and the complainant regarding the aspects which would have pointed towards the rash or negligent conduct of the accused. Therefore, accused Amarnath is acquitted for offence committed u/s 279/338 IPC.
Pronounced in the open court on 23.11.2023.
Judgment contains total 13 pages, each signed by the undersigned.
(AKSHAY SHARMA)
MM-02/SE/Saket/ND
23.11.2023
FIR No. 169/2017 STATE VS AMARNATH Page no.13