Delhi District Court
25. In "Namdeo vs State Of Maharashtra", Crl Appeal ... on 27 June, 2015
Author: Ms. Saumya Chauhan
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Joginder Kumar
FIR No. 305/10
PS Paschim Vihar
U/s 279/338 IPC
C C No. : 151/2/14
Date of Institution : 22.02.2011
Date of Commission of Offence : 15.10.2010
Name of the complainant : Prem Singh
S/o Trilok Singh
R/o B-209, Gali No.4,
Keshav Nagar, Near Nathupura
Name & address of the accused : Joginder Kumar
S/o Harbans Lal
R/o J-252, Shiv Ram Park, Nangloi
Offence complained of : 279/338 IPC & 134/187 M V Act
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of reserve for judgment : 22.06.2015
Date of announcing of judgment : 27.06.2015
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case u/s 279/338 IPC.
2. The briefly stated story of the prosecution is that on 15.10.2010 at about 7.00 State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 1/12 FIR No. 305/10 PS Paschim Vihar pm, the injured namely Prem Singh was present at the Peeragarhi bus stop, Udyog Nagar, Paschim Vihar, Delhi. When his bus arrived at the bus stop and he came forward to board the bus, one car bearing no. DL-8CM-7359 which was being driven by the accused Joginder Kumar came from behind. The driver turned the car towards the injured and the front tyre of the car ran over his foot. The public stopped the car and asked the driver to take the injured to the hospital. However, the driver took the car towards Nangloi and asked the injured to get down from his car and fled away. The injured called on 100 number and PCR van took him to SGM hospital. The details of the car were obtained from the transport authority. On basis of the same, the accused was apprehended. Thus the accused is alleged to have committed an offence under Section 279/338 IPC & under Section 134/187 M V Act. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused under Section 207 Cr.P.C. Notice under Section 251 Cr.P.C for offence under Section 279/338 IPC & under Section 134/187 M V Act was framed against him vide order dated 25.07.2014 to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined seven witnesses i.e (1) Prem Singh (2) Ct. Balraj (3) Brijpal (4) HC Mahender Singh (5) Retired ASI Manni Ram (6) Raghubir Singh (7) SI Karan Singh. State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 2/12 FIR No. 305/10 PS Paschim Vihar
5. PW-1 Prem Singh who is the injured had deposed that on 15.10.2010 he was standing at Peeragarhi bus stand on the road going towards G. T. Karnal Road. At about 7.00 pm, one bus came from Vikaspuri side and he moved forward to board the bus. All of a sudden, a car bearing no. DL8CN 7359 came from behind and driver turned it towards him. The front tyre of the car struck him on the left foot and he sustained injuries. He deposed that the public got the car stopped. The driver Joginder said that he would take the witness to the hospital and made him sit in the car. However, instead of taking him to the hospital, he took him towards Nangloi and made him get down from the car. Thereafter, the accused fled away with his car. Witness deposed that he called on 100 number and PCR van took him to SGM hospital and his statement was recorded by the police which is Ex.PW1/A. He identified the accused in the court. The identity of the car is not disputed by the accused.
6. In the cross examination, witness stated that his supplementary statement was recorded at PS Paschim Vihar while his statement Ex.PW1/A was recorded in the hospital. He deposed that he had reached the PS at about 12.00 noon and remained there for half an hour. He stated that he was not taken to the spot or any other place for investigation. He denied the suggestion that the accused was not driving the said car on the given date, time and place or that the IO had obtained his signature on blank papers.
State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 3/12 FIR No. 305/10 PS Paschim Vihar
7. PW-2 Ct. Balraj has deposed that on 15.10.2010 he along with SI Karan Singh had gone to the SGM hospital where the IO recorded the statement of injured. The IO prepared the tehrir and handed it over to the witness for getting the FIR registered. He got registered the FIR and returned back to the spot and handed over the copy of FIR and original rukka to the IO. In the cross examination, he stated that he had reached at SGM hospital at about 8.15 pm and after taking tehrir from the IO, he had reached the PS at about 10.00 pm.
8. PW-3 Brij Pal, dealing clerk at Wazirpur Transport Authority had brought the certified copy of the particulars of the car in question. He deposed that as per records, the car no. DL-8CN-7359 is owned by the accused Joginder. The certified copy of the same is Ex.PW3/A.
9. PW-3 HC Mahender Singh deposed that on 18.10.2010 he was posted as HC at Vikaspuri Zone, PCR. He was on duty in Ambulance P-100 from 8.00 to 8.00 pm. He deposed that he had received the call from PCR 100 number and received the information of the injured. He took the injured to the SGM hospital.
10. PW-4 Retired ASI Mani Ram deposed that on 11.11.2010 he was posted as ASI at Police Station City Hansi, District Hisar, Haryana. He was the investigating officer in the case FIR No. 646/10 under Section 279/337 IPC. He had seized the Santro car bearing no. DL-8CN-7359 along with driving license and the RC of the car. He handed over the copy of the same to the IO SI Karan Singh.
11. PW-2, 3 and 4 were not cross examined by the accused. State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 4/12 FIR No. 305/10 PS Paschim Vihar
12. PW-5 Raghubir Singh, Retired Mechanical Inspector, Haryana Roadways has deposed that on 12.11.2010, he had conducted the mechanical inspection of the car no.DL-8CN-7359 at the instance of ASI Mani Ram. His report is Ex.PW5/A. In the cross examination, he admitted that he had not conducted the mechanical inspection of the vehicle in the present FIR.
13. PW-6 SI Karan Singh deposed that on 15.10.2010 he was posted at PS Paschim Vihar as ASI. On that day, he received DD No.40A from the Ahlmad on which he had gone to the SGM hospital along with Ct. Balraj. Injured Prem Singh was admitted in the hospital. The witness deposed that he recorded the statement of injured and collected his MLC. He prepared the rukka and handed it over to Ct. Balraj for registration of FIR. Thereafter, he visited the spot i.e Udyog Nagar, Peeragarhi chowk. He deposed that no public person was present there. At about 11.00 pm, Ct. Balraj reached the spot and handed over the copy of FIR and original rukka to the witness. He further deposed that on the next day, he got the information from the transport authority about the car bearing no. DL8CN 7359. On the next date, he visited the house of the car owner Joginder Kumar but he was not present at that time. He further deposed that on 05.11.2010 Joginder Kumar came to PS Paschim Vihar. On the same day, injured Prem Singh had come to the PS to collect his documents. He identified the accused in the Police Station. Notice under Section 133 M V Act was served upon the accused by the IO. Thereafter, he arrested the accused State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 5/12 FIR No. 305/10 PS Paschim Vihar vide memo Ex.PW1/B and conducted his personal search vide memo Ex.PW6/A. He asked the accused to produce his driving license and other documents. However, the accused replied that his documents have already been deposited in Hansi, Haryana in another case. He prepared the site plan at the instance of the complainant which is Ex.PW6/B. He further deposed that on 11.11.2010 he reached at PS Hansi City where ASI Mani Ram met him. On 12.11.2010, the vehicle was mechanically inspected by the mechanical inspector. Witness recorded the statement of mechanical inspector and obtained the photocopy of the document regarding the ownership of the car. Thereafter, he prepared the charge-sheet and filed in the court.
14. During cross examination, he stated that he had received the information regarding the incident at about 7.45 pm. He admitted that the car was not present at the spot when he reached the spot at about 9.30 pm. He also admitted that he had not obtained the signature of the complainant on the site plan. He also admitted that he had not got the mechanical inspection conducted in the present FIR and the same was conducted by the IO in FIR No. 642/10 PS Hansi City. He admitted that no judicial TIP was conducted by him. He denied the suggestion that he is deposing falsely.
15. Thereafter, the PE was closed. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied all the allegations and pleaded innocence. No DE was led despite opportunity. The accused had stated that he was not driving State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 6/12 FIR No. 305/10 PS Paschim Vihar the car in a rash and negligent manner as there was lot of traffic. He stated that the speed of the car was 20-30 kmph. He admitted that the accident had taken place from his car however, it was not his fault. The injured was trying to board a moving bus and his leg had got struck with his car. He stopped the car and made him sit in the car and took him to the hospital. However, injured stated raising hue and cry stating that they will kill him. He started protesting and asked him to stop the car. Hence, the accused stopped the car before the petrol pump and injured got down from the car.
16. I have heard the submissions addressed by the Learned APP for state and the Legal Aid Counsel for accused and carefully perused the documents on record.
17. Ld. Counsel for accused has submitted that the prosecution has failed to prove its case beyond all reasonable doubts. He submits that the site plan does not bear the signature of the complainant. Also, the mechanical inspection of the vehicle i.e car no. DL8CN 7359 was conducted on 04.11.2010 while the accident had taken place on 15.10.2010. He further submits that as per the prosecution the same car had met with an accident in FIR No.646/10 registered at PS Hansi, Haryana. Hence, the damage shown in the mechanical inspection report Ex.PW5/A cannot be read in evidence for the purpose of this case. He further submits that no judicial TIP was conducted by the IO and the manner in which the injured had identified the accused at the police station is quite doubtful.
State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 7/12 FIR No. 305/10 PS Paschim Vihar
18. On the other hand, Ld. APP has submitted that the prosecution has successfully proved its case against the accused and he is liable to be convicted for the offence alleged.
19. To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:-
1. That the accident actually took place.
2. That the accident took place due to rash and negligent driving.
3. That the accused was the person who was driving the vehicle at the relevant time.
20. Before proceeding further, let us discuss the meaning of the expressions "rash"
and "negligent". These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
21. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the case of "S.N. Hussain v. State of Andhra Pradesh", AIR 1972 SC 685 as under :
"Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 8/12 FIR No. 305/10 PS Paschim Vihar 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 circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted............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".
22. In the case at hand, it has been admitted by the accused that he was driving the car no. DL-8CN-7359 on the alleged date, time and place and that his car had struck the injured due to which injury was caused to him. Since the factum of accident has not been disputed by the accused nor has he disputed his identity or that of the above said car, hence, the only question before the court is whether the accused was driving the car in a rash and negligent manner, and had caused grievous injuries to Prem Singh or not.
23. There are no photographs of the spot on record. The court agrees with the submissions of the Ld. Counsel for accused that since the mechanical inspection report Ex.PW5/A was prepared after the car had met with the subsequent accident and same cannot be read in evidence.
24. However, the testimony of the injured i.e PW-1 has remained intact and no discrepancy whatsoever has been found in the same. He has clearly stated the State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 9/12 FIR No. 305/10 PS Paschim Vihar entire incident and how the car had come towards him when he was trying to board the bus. The accused has not been able to impeach the credibility of PW-1 or marr the veracity of his statement.
25. In "Namdeo vs State of Maharashtra", Crl Appeal No.914/2006 decided on 13.03.2007, the Hon'ble Supreme Court of India relied upon its earlier judgment in "Vadivelu Thevar vs State of Madras" 1957 SER 981 wherein it was observed by the Hon'ble Court as under:-
1. As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
2. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule prudence that corroboration should be insisted upon, for example in case of a child witness or an accomplice or a witness of analogue character.
3. Whether corroboration of the testimony of a single witness is or is not necessary must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depend upon the judicial discretion of the judge before whom the case comes."
26. The Hon'ble Supreme Court further observed that the testimony of a solitary witness can be made the basis of conviction. The credibility of the witness is State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 10/12 FIR No. 305/10 PS Paschim Vihar required to be decided with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as fact wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.
27. In case titled as "Shadab @ Shamshad vs State of Govt. of NCT of Delhi", Criminal Appeal 1377/2012 decided on 11.03.2014 it was held by the Hon'ble High Court of Delhi, "There is no hard and fast rule that the testimony of injured requires corroboration before conviction. However, the rule of prudence has to be kept in mind. If the testimony of injured is trustworthy, categorically free of bias, and if there is nothing on record to suggest that the injured has any motive to falsely implicate the accused and allow his real assailants go scot free, the conviction can be based on the sole testimony of injured."
28. In the case at hand, the testimony of the sole eye witness / injured PW-1 has given a trustworthy and reliable account of the incident and defence has not been able to impeach his credibility in the cross examination. There is no reason to disbelieve the testimony of PW-1. Since his testimony has remained unimpeached, the court is of the view that no further corroboration is required.
29. In view of the above discussion, the court is of the view that the prosecution has successfully proved its case. It has been successfully proved by the prosecution that the accident was caused due to the rash and negligent driving by the accused and that the grievous injuries caused to PW-1 was a result of State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 11/12 FIR No. 305/10 PS Paschim Vihar such driving. It has also been proved that the accused did not provide medical aid to the injured and ran away after leaving him on the road. Hence, the accused is held guilty of the offence punishable u/s 279 & 338 Indian Penal Code and 134/187 Motor Vehicle Act. Accordingly, the accused stands convicted for offence under Section 279/338 Indian Penal Code & 134/187 Motor Vehicles Act.
30. Be listed arguments on point of sentence.
ANNOUNCED IN THE OPEN COURT ON 27th June 2015 (SAUMYA CHAUHAN) MM-07(West)/THC/27.06.15 State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 12/12 FIR No. 305/10 PS Paschim Vihar