Delhi District Court
State vs Rajesh Mandal on 29 July, 2025
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:34:15
+0530
IN THE COURT OF SH. VAIBHAV GARG, JUDICIAL MAGISTRATE FIRST
CLASS-11, CENTRAL, TIS HAZARI COURTS, DELHI
Cr. Case No.297801/2016
State Vs. Rajesh Mandal
FIR No. 173/2011
PS. Kashmere Gate
U/s. 279/337/338 IPC
JUDGMENT
1) The date of commission of offence : 04-05.09.2011
2) The name of the complainant : Sh. Raja Singh S/O Sh. Lallan
Singh R/o D 2, Double Story, Court
Lane, LG House, Raj Niwas Delhi-
110054.
3) The name & parentage of accused : Rajesh Mandal S/o Ganesh Mandal
R/o RZ-132, Gali No. 4, Mahavir
Enclave, Palam, New Delhi
4) Offence complained of : 279/337/338 IPC
5) The plea of accused : Not guilty
6) Final order : Conviction
Date of institution of Case : 15.11.2011
Judgment reserved on : 12.07.2025
Judgment pronounced on : 29.07.2025
BRIEF REASONS FOR THE JUDGMENT:
1. The accused in the present matter is facing trial for the offences under
section 279, 337 & 338 IPC.
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 1/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:34:21
+0530
2. The prosecution story is that on the intervening night of 04-05.09.2011
at about 12:15 AM at Boulevard Road near Kashmere Gate Metro
Station in the carriage way going towards Tis Hazari Court, Delhi, the
accused was found driving car make Santro bearing no. HR-55MT-9880
on a public way in rash or negligent manner so as to endanger human
life or to be likely to cause hurt or injury to any other person and that
while driving the aforesaid vehicle in the aforesaid manner, the accused
caused simple injury to one Raju s/o Ram Dass and grievous injuries to
one Naushad s/o Abdul Gaffar.
3. The information of the accident was received in PS Kashmere Gate vide
DD No. 3A dated 05.09.2011, pursuant to which the present FIR was
lodged. After concluding the investigation, the present charge sheet was
filed against the accused under sections 279/337/338 IPC.
4. Notice was served upon the accused as per para 1 to which he pleaded
not guilty and claimed trial. In order to prove the offence against the
accused, the prosecution has examined as many as eight witnesses.
5. PW-1 HC Yash Pal (PIS No. 287N), deposed that on 05.09.2011, he was
working as Duty Officer from 1.00 AM to 9.00 AM at PS Kashmere
Gate and on that day at about 2.50 AM, he received one rukka from Ct.
Manoj (PW-5) sent by SI Pradeep Rai (PW-7). He further deposed that,
on the basis of said rukka, he recorded the FIR No. 173/11 using the
computer installed at the Duty Officer’s room in which ordinarily FIR
are fed through computer operator. He further deposed that the FIR was
registered on his dictation & direction and that he obtained the print out
of the FIR and same was handed over to Ct. Manoj for further
transmission to SI Pradeep Rai. He further proved the FIR Register in
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 2/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:34:25
+0530which one print out was retained for record. He further deposed that he
also put the endorsement Ex. PW-1/B on the rukka. He further proved
the computer copy of the FIR Ex. PW-1/A. He further deposed that he
had also issued the certificate u/s 65-B Indian Evidence Act Ex.PW-1/C.
6. PW-2 Naushad S/o Sh. Abdul Gaffar has deposed that on 04.09.2011, it
was a Sunday night and he had come from Shastri Park to Kashmiri
Gate and he was waiting for an auto near Metro Station for going to
Azad Market. He further deposed that he was standing on the side of the
road and it was about 12:15 AM in the night, when one Santro Car came
at a very high speed and hit him and after hitting him the said car hit
one rickshaw-wala. He further deposed that the said car was bearing
registration No. HR-55MT-9880. He further deposed that due to the
accident he sustained injuries on his left leg and right hand got
fractured. He further deposed that he was shifted to the Aruna Asaf Ali
hospital by a police van. He further deposed that the driver of the Santro
car was apprehended by one person namely Raja (PW-3). He further
deposed that the accident was caused by the driver of the Santro car
who seemed to be in drunken condition. The witness correctly identified
the accused during dock identification. During cross examination, he
denied the suggestion that he was crossing the road, carelessly. He
deposed that Raju Rikshaw wala (PW-8) was also injured in the said
incident. He further denied the suggestion that he stood after the
incident or that, even in the hospital, he was moving properly. He
further denied the suggestion that he sustained injuries through the side
mirror of the Santro car only. He also denied the suggestion that the
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 3/26
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signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:34:31
+0530injuries were self-inflicted in nature so as to extract money
from the accused.
7. PW-3 Sh. Raja Singh S/o Sh. Lallan Singh has deposed that on the
intervening night of 04-05.09.2011, he was going to Tis Hazari on his
motorcycle no. DL-4S-AG-0797. He further deposed that at about
12:00/12:15 night, near Gate no. 3, Kashmiri Gate metro station, a car
bearing no. HR-55 MT-9880 came at a very fast speed, in rash and
negligent manner run by accused and hit a person namely Naushad
(PW-2) who was crossing the road and again the accused hit his car into
a rickshaw puller Raju (PW-8). He further deposed that both Naushad
and Raju sustained injuries. He further deposed that police arrived at the
spot and took both the injured to hospital. He further deposed that he
also reached at Aruna Asaf Ali Hospital where both injured Naushad
and Raju were receiving medical treatment. He further deposed that
Police recorded his statement Ex. PW-3/A. He further correctly
identified the offending car as shown in photographs Ex. P-1 (Colly).
During cross-examination, he deposed that he was working in a
restaurant in 2011 and came to drop his friend Rahul at Khajuri, first
Pusta at around 11:45 PM and was returning to his residence at Staff
Quarters, LG House. He further deposed that when he was coming from
Khajuri and was on the ISBT flyover, one car came from behind in a
very fast manner bearing number HR-55-MT-9880, and the driver of the
car was driving the aforesaid car in a zigzag manner. He further deposed
that the driver suddenly took the car from the right side to the left side
of the road. He further deposed that at the exit of the metro station, one
boy was crossing the road from the pedestrian side, and the said car hit
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 4/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:34:37
+0530that boy and due to the hit, boy jumped into the air and fell down on the
road. He further deposed that when he came to saw that boy, he was
badly injured and became unconscious. He further deposed that the
offending car also hit one Rikshaw puller and thereafter the car rammed
into the footpath. He further deposed that the traffic was very less at that
time. He further deposed that the accused was driving the offending
vehicle from Shastri Park towards Tis Hazari and the incident happened
at Kashmere Gate Metro Station. He further deposed that the rickshaw
puller namely Raju was at the left side of the road, and the offending
vehicle rammed from the left side of the road. In response to the
question that the alleged vehicle rammed in order to save Naushad, he
deposed that the offending vehicle was coming from the right side of the
road and it firstly, hit Naushad thereafter the Rikshaw puller Raju, and
after that the offending car got imbalanced due to which it got rammed
on the left side of the road near footpath. He further deposed that
Naushad was crossing the road from the left side of the road coming
from the side of Shastri Park near Kashmiri Gate Metro Station to the
opposite road towards the ISBT Kashmiri Gate. He further denied the
suggestion that due to saving Naushad, the alleged incident happened
and due to which the vehicle got rammed from the left side. He further
denied the suggestion that Naushad moved freely in the hospital and he
also denied the suggestion that he was not present at the site. He further
denied the suggestion that the accused has not done anything wrong and
in saving Naushad, the vehicle became jammed after pressing the brakes
immediately and that he is deposing against the accused with some
ulterior motive.
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 5/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:34:42
+0530
8. PW-4 Retd. ASI Dharam Pal, has deposed that on the intervening night
of 04-05.09.2011, he was posted as driver in government gypsy bearing
no. DL 1 CJ 3224 at PS Kashmere Gate. He further deposed that on that
day, when he reached Boulevard Road near bus stand from the side of
Kashmere Gate Metro Station, he saw some public persons and Ct.
Manoj (PW-5) were standing near one car. He further deposed that two
injured persons, one before the bus stand and the other near the bus
stand, were lying there. He further deposed that with the help of public
persons and Ct. Manoj he took both the said injured persons to Aruna
Asaf Ali hospital for medical treatment.
9. PW-5 HC Manoj, No. 1494/Shahdara has deposed that on the
intervening night of 04-05.09.2011, he was posted as Constable and was
on patrolling duty on PCR motorcycle in the area of PS Kashmere Gate.
He further deposed that at around 12.15 AM during patrolling when he
reached from the side of Kashmere Gate Metro Station towards
Boulevard Road and took a turn towards the road of Tis Hazari, he saw
one white colour Santro Car bearing registration no.HR-55-MT-9880
coming from the side of ISBT Flyover and was going towards Tis
Hazari Road at a high speed. He further deposed that the driver of the
said car was driving the abovesaid vehicle in rash and negligent manner
and during this process the abovesaid car hit one pedestrian who was
crossing the road. He further deposed that after the accident, the driver
of the said car did not stop and also hit one cycle-rickshaw which was
going in front of the offending vehicle. He further deposed that he
chased the said vehicle on his motorcycle and stopped him near Bus
Stand and the driver of the offending vehicle came out and it was found
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 6/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:34:48
+0530that the driver was under the influence of alcohol as smell of alcohol
was coming from his mouth. He further deposed that he informed the
PS regarding the abovesaid incident. He further deposed that, ASI
Dharampal, came at the spot as he was driving in the same direction and
stopped upon seeing him. He further deposed that the injured pedestrian
and rickshaw puller were taken to Aruna Asaf Ali Hospital in the
car/gypsy driven by ASI Dharampal. He further deposed that on being
asked, the driver of the above said Santro Car revealed his name as
Rajesh Mandal. He further deposed that after sometime, IO/SI Pradeep
Rai came at the spot and the custody of the Rajesh Mandal was handed
over to him. He further deposed that he was instructed to remain at the
spot for its preservation and IO/SI Pradeep went to AAA hospital
alongwith accused Rajesh Mandal and returned at around 1.50 AM and
prepared the tehrir and handed over the same to him for registration of
FIR. He further deposed that he took the tehrir and left for PS and after
registration of the present FIR through Duty Officer, he came back at
the spot alongwith original Tehrir and copy of FIR and same were
handed over to IO/SI Pradeep Rai. He further deposed that after doing
some enquiry from the accused Rajesh Mandal, the above-mentioned
car and cycle rickshaw were seized vide memos Ex.PW-5/A & Ex.PW-
5/B respectively. He further deposed that the DL of accused Rajesh
Mandal, RC, permit and insurance of above mentioned Santro Car were
also seized by IO in his presence vide siezure memo Ex.PW-5/C. He
further deposed that, accused Rajesh Mandal was personally searched
and arrested vide memos Ex.PW-5/D & Ex.PW-5/E respectively. He
further deposed that after sometime brother-in-law of accused came andFIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 7/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:34:53
+0530accused was released on police bail. He further deposed that IO
recorded his statement. The witness correctly identified the Santro Car
bearing No. HR-55-MT-9880 and the cycle rickshaw through the
photographs Ex.P-1(colly). The cross-examination of PW-5 was
deferred at the request of the accused as his counsel was not available.
Thereafter, due to COVID-19 pandemic, the witness could not be cross-
examined and HC Manoj expired on 15.11.2020. Thus, PW-5 has not
been cross-examined.
10. PW-6 Retd. ASI Gurdeep Singh has deposed that on 07.09.2011, he
was working as mechanical inspector and on the request of the IO/SI
Pradeep, he conducted the mechanical inspection of car bearing
registration number HR55-MT-9880. He further deposed that during the
course of inspection he found fresh damage on the front glass, front
bumper and right side front head light. He further deposed that the
vehicle was fit for road driving. He, accordingly proved the inspection
report EX. PW-6/A and his detailed opinion. He further deposed that the
report was handed over to the IO of the case for further necessary
action. He further deposed that he also conducted the mechanical
inspection of one cycle rickshaw and during the course of inspection, he
found rear rim damage and found that the vehicle was not fit for road
driving. He accordingly proved his inspection report which is Ex. PW-
6/B and his detailed opinion. He further deposed that the report was
handed over to the IO of the case for further necessary action. During
cross-examination, he denied the suggestion that vehicle number HR-
55-MT-9880 was not fit for road drive and he also denied the suggestion
that suspension of the said vehicle was also bent.
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 8/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:34:58
+0530
11. PW- 7 Insp. Pradeep Rai, No. DI/671, has deposed that on 05.09.2011
he was posted as SI at PS Kashmere Gate and on the intervening night
of 04-05.09.2011, he was on emergency duty and it was about 12:45
AM that he received information regarding accident at Bouleward Road
near Kashmere Gate Metro Station in the carriage way going towards
Tis Hazari. He further deposed that accordingly he went the said spot
where he met with Ct. Manoj and who disclosed him about the accident
and at that time the offending vehicle i.e. Santro car bearing No. HR-
55MT-9880 in a white colour was stationed there and one accidental
rickshaw was also lying there. He further deposed that he came to know
that both the injured have already been shifted to AAA Hospital. He
further deposed that Ct. Manoj produced one person before him and on
inquiry he came to know that he was the driver of the offending car and
revealed his name as Rajesh Mandal. He further deposed that he took
him to the AAA hospital where the injured persons namely Raju and
Naushad were found admitted and he collected their MLCs and he also
got conducted the medical examination of accused driver and collected
his MLC. He further deposed that he also found one eye witness
namely Raja who was found to be present at the spot at the time of
accident and he made inquiry from him regarding the accident and
recorded his statement Ex.PW-3/A. He further deposed that, he came
back at the spot and prepared rukka Ex.PW-7/A and handed over the
same to Ct. Manoj for registration of the FIR and Ct. Manoj left for PS
and after some time came back at the spot alongwith rukka. He further
deposed that at that time, injured Raju also came at the spot and he
made inquiry from him and prepared site plan Ex.PW-7/B at his
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 9/26
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signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:35:03
+0530instance. He further deposed that he seized both vehicles vide separate
seizure memos Ex.PW-5/A and Ex.PW-5/B. He further deposed that he
arrested the accused after conducting his personal search vide memos
Ex.PW-5/E and Ex.PW-5/D. He further deposed that, he collected the
DL of accused, RC of his vehicle, permit and insurance of his offending
vehicle and seized the same vide seizure memo Ex.PW-5/C. He further
proved the RC mark Z, permit Mark Z-1, DL Mark Z-2, insurance Mark
Z-3. He further deposed that he served the notice u/s 133 MV Act to the
Manager of Jai Shree Ram Tour & Travel as the owner of the offending
vehicle and his notice is Ex.PW-7/C. He further deposed that he got the
reply on the said notice from the concerned person Mr. Inderpal Singh.
He further deposed that he deposited the case property in Malkhana and
accused was released on police bail. He further deposed that he got
verified the documents of the offending vehicle from the concerned
authority and he got mechanically examined both vehicles i.e. offending
car and rickshaw and collected the report which are Ex.PW-6/A and
Ex.PW-6/B. He further deposed that he recorded the statement of other
witnesses including injured Naushad and Raju. After completion of
investigation, he prepared the charge sheet and filed the same before the
Court. He correctly identified the accused and the case property is
already exhibit. During cross examination, he deposed that the alleged
spot was a public place and there were public persons present on the
spot. He further deposed that the road was a busy road and there were
vehicles on the road. He further deposed that he did not find any mark
regarding the speed limit on the side Road. He further deposed that he
asked public persons to give their statements, but no one agreed and leftFIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 10/26
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signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:35:08
+0530the spot without disclosing their names and addresses. He denied the
suggestion that he made a concocted story and planted Raja as an eye
witness of the incident, despite he was not present at the spot. He further
denied the suggestion that the injured persons while crossing the road
were careless. He further deposed that there was no zebra crossing on
the side road and that he had not shown the location of the eyewitness
Raja in the site plan. He denied his suggestion that he has not shown the
same because he was not present at the spot. He further denied the
suggestion that accused was not driving his vehicle in Rash and
negligent manner or in a zigzag manner. He further denied the
suggestion that he made Raja as an eye witness only to extort money
from the accused.
12. PW-8 Sh. Raju S/o Ramdas has deposed that he did not want to say
anything in the present case and he did not know why he is summoned
for the present case. He had not seen anything and he is not eye witness
of any accident. During cross examination by the Ld. APP for State, he
deposed that he is an illiterate person and cannot read Hindi but can
understand. He denied the suggestion that his statement was recorded on
05.09.2011 in the present case by the IO SI Pradeep. He further denied
the suggestion that he had stated in his statement that he had been
running the rickshaw on night of 04.09.2011 and he was going towards
Tis Hazari from Kashmere Gate on his rickshaw. He further denied the
suggestion that when he reached at the bus stand, suddenly one car
bearing number HR-55-MT-9880 came from behind in a fast manner
and hit against him from behind due to which he fell down on the road
and sustained injuries. He further denied the suggestion that his
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 11/26
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signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:35:14
+0530rickshaw was damaged due to the said accident. He also denied the
suggestion that the said driver of the offending car also hit against one
pedestrian and the said driver was stopped by the police official at some
distance and the said police official made him deboard the said car and
made enquiries from him, who revealed his name as Rajesh Mandal. He
further denied the suggestion that the injured Naushad and he were
taken to the Aruna Asaf Ali Hospital through government vehicle where
they were treated. He also denied the suggestion that the accident
occurred due to the negligent driving of the driver Rajesh mandal. He
also could not identify the accused and deposed that he had not seen any
accident. He denied the suggestion that he is not disclosing true facts or
identifying the accused because he has been won over by the
accused or due to fear.
13. After the examination of witnesses, the statement of the accused under
section 313 CrPC was recorded where in the accused person has baldly
denied all the incriminating evidence and has pleaded false implication.
The accused has also stated that he was been falsely implicated in the
present case and that he is innocent. However, the accused has chosen
not to lead any defence evidence.
14. During the final arguments, Ld. APP for State has argued that through
the testimonies of the prosecution witnesses as well as the other
documentary evidence on record, the prosecution has proved its case
beyond reasonable doubt against the accused. Learned APP for the state
has prayed that the accused be convicted for the offences under section
279, 337 & 338 of IPC.
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 12/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:35:20
+0530
15. Per contra, Ld. Counsel for the accused has argued that the testimonies
of PW-2 & PW-3 are inconsistent with each other. He further argued
that PW-2 has not deposed about the vehicle being driven in a ‘rash’ or
‘negligent’ manner. He further argued that PW-7 has failed to disclose
the location of the alleged eye witness Raja. He further pointed out that
the injured-witness Raju (PW-8) has failed to identify the accused and
PW-2 has failed to identify the offending vehicle. In the above light, he
finally argued that there is no material on record to support the charges
framed against the accused. He has further argued that the prosecution
has failed to connect the accused with the alleged accident, and thus he
pleads that the accused in the present matter, be acquitted of all the
charges.
16. Section 279 of IPC states that:
“Whoever drives any vehicle, or rides, on any public way in a manner so rash
or negligent as to endanger human life, or to be likely to cause hurt or injury
to any other person, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine which
may extend to one thousand rupees, or with both.”
17. To prove an offence under this section, it is necessary that prosecution
shall prove that (i) the accused was driving the offending vehicle; (ii) on
a public way; and (iii) in a manner so ‘rash’ or ‘negligent’ so as to
endanger human life, or to be likely to cause hurt/injury to any other
person.
18. Before proceeding further, it is pertinent to discuss the meaning of the
expressions ‘rash’ and ‘negligent’. In Empress of India v. Idu Beg 1881
(3) All 776, the Hon’ble Court explained the meaning of ‘criminal
rashness’ and ‘criminal negligence’ in the following words: 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
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 13/26
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VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:35:25
+0530injury, 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 charge has arisen, it was the imperative duty of the
accused person to have adopted.
19. Further, In Rathnashalvan vs. State of Karnataka AIR 2007 SC 1064,
the Hon’ble Supreme Court observed that:
“5. Section 304A applies to cases where there is no intention to cause death and
no knowledge that the act done in all probability will cause death. The provision
is directed at offences outside the range of Sections 299 and 300 IPC. The
provision applies only to such acts which are rash and negligent and are directly
cause of death of another person. Negligence and rashness are essential elements
under Section 304A. 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. 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.
6. 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.”
20. Before beginning to appreciate the evidence, it is apposite to
recapitulate the nature of testimonies of the witnesses. PW-1, HC
Yashpal, is the Duty Officer who lodged the FIR. PW-2, Naushad, is the
first injured witness. PW-3, Raja, is the eye-witness of the incident. PW-
4 ASI Dharampal, is the driver of the Govt. gypsy in which the injured
were taken to the Hospital. PW-5, HC Manoj, is also an eye witness of
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 14/26
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signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:35:31
+0530the accident. PW-6 ASI Gurdeep is the mechanical inspector, who
conducted the mechanical inspection of the vehicles involved in the
accident. PW-7 Insp. Pradeep is the Investigating Officer and PW-8,
Raju, is the second injured witness.
21. PW-3 has deposed that on the intervening night of 04-05.09.2011, he
was returning, after dropping his friend Rahul at Khajuri, first Pusta at
around 11:45 PM, to his residence at Staff Quarters at LG House on his
motorcycle bearing no. DL-4S-AG-0797. He further deposed that at
about 12:00/12:15 AM, while he was at the ISBT flyover, near Gate no.
3, Kashmiri Gate Metro Station, a car bearing no. HR-55-MT-9880
came from behind at a very fast speed in rash and negligent manner and
being driven in a zigzag manner by the accused on the road from Shastri
Park towards Tis Hazari. He further deposed that the car driver suddenly
took the car from the right side to the left side of the road and that at the
exit of the metro station, one boy (Naushad-PW-2) was crossing the
road from the left pedestrian side of the road (coming from the side of
Shastri Park) to the opposite road (road towards the ISBT Kashmiri
Gate) and the offending vehicle hit him due to which he jumped into air
and fell down on the road. He further deposed that the offending car
also hit one Rikshaw puller (Raju PW-8) and thereafter the car rammed
into the footpath. He further deposed that the rickshaw puller Raju was
at the left side of the road, and after that the offending car got
imbalanced and got rammed into the left side of the road near footpath.
He further deposed that when he saw Naushad, he was badly injured
and became unconscious. He also deposed that there was very less
traffic at that time. He further deposed that Both Naushad and Raju
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 15/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:35:36
+0530sustained injuries. He further deposed that Police arrived at the spot and
took both the injured to hospital. He further deposed that he also
reached at Aruna Asaf Ali Hospital where both injured Naushad and
Raju were receiving medical treatment. He further deposed that Police
recorded his statement Ex. PW-3/A. He further deposed that he can
identify the said offending car if shown to him. The witness correctly
identified the offending car as shown in photographs Ex. P-1.
22. PW-2 Naushad has deposed that on 04.09.2011 (Sunday night) he had
come from Shastri Park to Kashmiri Gate and at about 12:15 AM he
was waiting for an auto near Metro Station for going to Azad Market.
He further deposed that while he was standing on the side of the road,
the offending vehicle came at a very high speed and hit him and after
hitting him, it hit one rickshaw wala. He further deposed that he was
shifted to the Aruna Asaf Ali hospital by a police van. He further
deposed that the driver of the Santro car was apprehended by one Raja
(PW-3). He further deposed that the accident was caused by the driver
of the Santro car who seemed to be in drunken condition.
23. PW-8 Raju has turned hostile inasmuch as he has deposed that he had
not seen anything and he is not eye witness of any accident. He also did
not identify the accused.
24. PW-5 has explained his presence at the spot as he was on patrolling duty
at the relevant time. He has further deposed that the offending vehicle
was coming from the side of ISBT Flyover and was going towards Tis
Hazari Road at a high speed. He also deposed that the offending vehicle
was being driven in a rash & negligent manner and in such driving, the
offending vehicle hit a pedestrian (who was crossing the road) and one
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 16/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:35:44
+0530cycle-rickshaw which was going in front of the offending vehicle. He
further deposed that he stopped the offending vehicle near the Bus
Stand and the accused, driver of the offending vehicle came out and he
found that the accused was under the influence of alcohol as smell of
alcohol was coming from his mouth. He further deposed that ASI
Dharampal (PW-4), who was driving the government gypsy in the same
direction stopped upon seeing PW-5 and the injured Naushad (PW-2)
and Raju (PW-8) were taken to Aruna Asaf Ali Hospital in the
car/Gypsy driven by ASI Dharampal.
25. PW-4 has also corroborated the testimony of PW-3 and PW-5 as he has
deposed that on the intervening night of 04-05.09.2011, he was posted
as driver in government gypsy bearing no. DL-1-CJ-3224 at PS
Kashmere Gate and on that day, when he reached Boulevard Road near
Bus Stand from the side of Kashmere Gate Metro Station, he saw some
public persons and Ct. Manoj were standing near one car. He further
deposed that two injured persons were lying there. He further deposed
that with the help of public persons and Ct. Manoj he took both the said
injured persons to Aruna Asaf Ali hospital for medical treatment.
26. It is pertinent to mention here that PW-5 HC Manoj was examined-in-
chief on 04.03.2020 and his cross-examination was deferred at the
request of the Accused as his Counsel was not available. Thereafter, due
to COVID-19 pandemic, the witness could not be cross-examined and
HC Manoj expired on 15.11.2020. Thus, PW-5 has not been cross-
examined.
27. With regard to the testimony of a witness, who has not been cross-
examined, it would be gainful to refer the judgment of the Hon’ble
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 17/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:35:49
+0530Supreme Court in Mulak Raj Sikka Vs. Delhi Administration AIR 1974
SC 1723, wherein it has held as follows:
“Where in a Sessions trial the witness whose deposition recorded by the
committing Magistrate was sought to be brought on record, could not be found
in spite of all reasonable steps taken, including the one taken by High Court
during the hearing of appeal, and further although the accused had a right to
cross examine that witness in the committing Court, his counsel had preferred
not to cross-examine at that stage and had reversed it for the Sessions Court,
both the conditions of Section 33 were satisfied and the evidence of such witness
recorded in committing Court was admissible in Sessions trial.”
28. In T.R. Srikantaiah Setty vs Balakrishna 1999 SCC OnLine Kar 198, the
law has been summarized by the Hon’ble Karnataka High Court, as
follows:
“In this context, it may be mentioned that when a witness dies after the
examination-in-chief and before cross-examination, the evidence is admissible,
but its probative value may be very small and may even be disregarded. But if
the examination is substantially complete and the witness is prevented by death
from finishing his testimony, it ought not be rejected entirely. In my view, the
testimony of a witness whose cross-examination is not evaded or deliberately
prevented and became impossible by reason of his death, sickness or other
causes mentioned in Section 33 of the Evidence Act, can be treated as evidence
and the Court should carefully see whether there are indications that by
completed cross-examination, the testimony was likely to be seriously shaken.
In my view, therefore, the evidence of the witness is admissible if cross-
examination is not evaded or deliberately prevented by the parties. Death or
illness before cross-examination makes the evidence in-chief admissible though
its weight may be slight. Therefore, no general rule can be laid down in respect
of unfinished testimony of a witness. If substantially complete and the witness
is prevented by reason of his death from completing or finishing his testimony,
it ought not to be rejected entirely, but the Court should carefully see whether
there are indications that by completed cross-examination, the testimony was
likely to be seriously shaken.”
29. The Hon’ble High Court of Patna in Sri Kishun Jhunjhunwala Vs.
Emperor AIR (33) 1946 Patna 384 has held as follows:
“It is further held that where a witness dies after examination in chief and
before cross examination his evidence is admissible but the degree of weight to
be attached to it depends on the circumstances of the case.”
30. Upon perusal of the above precedents, it transpires that the testimony
which could not be put to the test of cross-examination does not cease to
be admissible in law, however, the court must be circumspect in
appreciating the same and must factor in the facts and circumstances of
the case before determining the probative value to be attached to it.
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 18/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:35:54
+0530
31. In the case at hand, PW-5 is an eye-witness of the accident and his
presence, on the spot, has been confirmed by PW-4 as well as PW-7. It
is also established from the testimony of PW-7 that the accused was
intercepted and handed over to him by PW-5. It is also established from
the testimony of PW-1 that PW-5 had carried the rukka from the spot to
the police station and had carried the FIR from the PS to the spot. The
signatures of PW-5 are also found on various documents executed on
the spot including the Seizure memos Ex.PW-5/A, Ex.PW-5/B and
Ex.PW-5/C; Personal Search memo Ex.PW-5/D and Arrest Memo
Ex.PW-5/E and the same documents have also been proved by PW-5
during his deposition. Further, he was a police official, present on the
spot in discharge of his duties and there is no allegation of any previous
enmity, ill-will, animosity, bias or mala fide between the accused and
PW-5, which could suggest a motive to falsely implicate the accused,
and thus there is no reason to discard the testimony of PW-5, despite the
fact that he has not been cross-examined.
32. As regards the testimony of hostile witness, the law is clear that the
evidence of a hostile witness would not be totally rejected if spoken in
favour of the prosecution or accused, but it can be subjected to close
scrutiny and that portion of the evidence which is consistent with the
case of the prosecution or defence may be accepted, as held by the
Hon’ble Supreme Court in State of U.P. vs Ramesh Prasad Misra 1996
(10) SCC 360.
33. Perusal of record reveals that although PW-8 Raju turned hostile and did
not support the prosecution, his earlier statement to the police and his
MLC Ex. AD4 were corroborated by PW-3, PW-4, and PW-5, all of
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 19/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:35:59
+0530whom saw him injured at the site and being taken to the hospital.
Further, the signatures of PW-8 are also found on the Site Plan Ex. PW-
7/B which confirms his presence at the spot of incident at the relevant
time and the MLC Ex. AD4 proves that PW-8 was injured in the
accident and sustained simple injuries. Thus, it can be concluded that
PW-8 was present at the spot and also got injured, but has turned hostile
for the reasons best known to him.
34. From the testimonies of PW-2, PW-3 and PW-5, the identity of the
offending vehicle bearing registration No. HR-55-MT-9880 has been
established. Further, PW-2 correctly identified the accused during dock
identification. PW-2 has also deposed that the accused was
apprehended by PW-3. PW-3 had also identified the accused during
dock identification and had deposed that he was driving the car bearing
No. HR-55-MT-9880 at a very fast speed and in a rash & negligent
manner. PW-5, during his testimony had also identified the accused as
the driver of the offending vehicle. Thus, the eye-witnesses as well as
the injured witness have identified the accused as the driver of the
offending vehicle at the time of the accident. Further, the site plan Ex.
PW-7/B establishes that the place of the accident was the road towards
the Tis Hazari, which is a public road. It is also not the defence of the
accused that he was not driving the offending vehicle or that the road
was not a public way. Thus, the first two ingredients of the offence u/S
279 IPC viz. (i) the accused was driving the offending vehicle; and (ii)
on a public way, are established.
35. Having established the above, what remains to be seen is whether the
accused Rajesh was driving the Santro Car bearing registration No. HR-
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 20/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:36:03
+0530
55-MT-9880, near Kashmere Gate Metro Station in the carriage way
going towards Tis Hazari Court in a manner so ‘rash’ or ‘negligent’ so
as to endanger human life, or to be likely to cause hurt or injury to any
other person.
36. PW-3 has deposed that at the relevant time, while he was at the ISBT
flyover, near Gate no. 3, Kashmiri Gate Metro Station, the offending
vehicle came from behind at a very fast speed in rash and negligent
manner and being driven in a zigzag manner by the accused and the car
driver suddenly took the car from the right side to the left side of the
road.
37. This version of PW-3 has been corroborated by PW-2, who has deposed
that at the relevant time he was waiting for an auto on the side of the
road at ISBT, near Metro Station for going to Azad Market, when the
offending vehicle came at a very high speed and hit him and after
hitting him the said car hit one rickshaw-wala.
38. PW-5 has also deposed on the same lines as PW-2 and PW-3 that he was
on patrolling duty at the relevant time and when he reached near the
spot of the accident, he saw the offending vehicle coming from the side
of ISBT Flyover and was going towards Tis Hazari Road at a high
speed. He further deposed that the driver of the said car was driving the
offending vehicle in rash and negligent manner and during this process
he hit one pedestrian (PW-2) who was crossing the road from the side of
Tis Hazari and also hit one cycle-rickshaw (PW-8) which was going in
front of the offending vehicle.
39. PW-2 and PW-3 have deposed that the accused was driving the
offending vehicle at a very high speed and in a rash & negligent manner.
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 21/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:36:08
+0530
PW-3 has also deposed that offending vehicle was being driven by the
accused in a zig-zag manner and he suddenly took the car from the right
side to the left side of the road. He further deposed that due to the
collision, PW-2 flung into the air and fell on the road.
40. Such erratic and dangerous driving indicates a clear loss of control and
complete disregard for road safety norms. PW-2 has also corroborated
this version by stating that the vehicle was being driven at a high speed
in a rash and negligent manner.
41. Crucially, it has also come on record that the accused was under the
influence of alcohol at the time of the incident. PW-5, a police officer
who apprehended the accused immediately after the accident,
categorically deposed that he could smell alcohol on the breath of the
accused. This oral testimony finds further corroboration in the MLC of
the accused which notes that ‘alcohol in breath present (+++)’ which
implies that alcohol was present in the breath of the accused during the
medical examination of the accused. Driving under the influence of
alcohol not only severely compromises a person’s judgment, reflexes,
and ability to maintain control over a vehicle, but also aggravates the
degree of negligence involved. When viewed collectively-the high
speed, sudden swerving, zig-zag driving pattern, and the presence of
alcohol- a consistent and compelling picture of the recklessness of the
accused emerges.
42. The combination of high speed, erratic lane changes, and intoxication
strongly indicates a gross deviation from the standard of care expected
from a reasonable driver. This is further underscored by the grievous
consequences of such driving that PW-3 categorically deposed that upon
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 22/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:36:14
+0530being struck by the offending vehicle, PW-2 was flung into the air,
landed on the road, and suffered a fracture. Furthermore, the offending
vehicle also collided with a cycle-rickshaw. As per the mechanical
inspection report Ex. PW-6/B, the rear rim of the rickshaw was found
damaged, and it was opined that the said rickshaw was not fit for road
usage. This manner of driving by the accused unerringly highlights the
sheer force and violence of the collision.
43. Careful scrutiny of the testimonies of PW-2 and PW-3 also reveal some
inconsistencies: PW-3 has deposed that the offending vehicle had
rammed into the divider while PW-5 has deposed that he had stopped
the offending vehicle and apprehended the accused, whereas, as per
PW-2, PW-3 had apprehended the accused. That apart, there is yet
another inconsistency in the testimonies of the prosecution witnesses to
the effect that all the witnesses have deposed that PW-2 was hit by the
offending vehicle while he was trying to cross the road whereas PW-2
himself has deposed that he was waiting for an auto at the spot of
incident.
44. From the material on record, it is well established that the accused had
hit PW-2 on the left side of the road- whether PW-2 was trying to cross
the road from the left side or was waiting for the auto on the left side
would have no bearing on the case and thus, this inconsistency is only a
minor inconsistency and does not affect the prosecution’s case. As
regards the vehicle ramming into the divider or being stopped by PW-5,
it is noteworthy that, as per the site plan, the vehicle was found on the
left side of the road, near the divider. Thus, these two inconsistencies
can be reconciled as PW-5 may had stopped the offending vehicle and
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 23/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:36:20
+0530
apprehended the accused and PW-3 would have seen the accused on the
left side divider and had believed that the offending vehicle rammed
into the divider. This, also explains the inconsistency regarding the
apprehension of the accused. In totality of circumstances, these
inconsistencies cannot be held to be material inconsistencies so as to
shake the prosecution’s case.
45. The accused has taken a defence that his vehicle got jammed after
pressing the brakes immediately by giving a suggestion to this effect to
PW-3. The mechanical inspection report Ex. PW-6/A of the offending
vehicle reveals that the vehicle was fit for road as the engine, clutch and
brakes and steering of the vehicle were found ‘ok’. Thus, the
Mechanical Inspection Report of the offending vehicles disproves the
defence of the accused that his vehicle got jammed upon immediate
braking.
46. It is important to note that the witnesses PW-2 and PW-3 are public
witnesses who are not well versed with legal jargon. Therefore, their
depositions must be appreciated in the context of their lay
understanding of the events as they unfolded before them. The law does
not require expert articulation of ‘rashness’ or ‘negligence’ from public
witnesses, especially when their observations are found to be natural,
credible, and free from any motive to falsely implicate.
47. The consistent and corroborating testimonies of PW-2 and PW-3
alongwith the manner of driving deposed by PW-3 are sufficient to
establish that the accused was indeed driving in a rash and negligent
manner, as contemplated under Sections 279 IPC. The negligence of the
conduct of the accused is also reflect in the fact that he was driving the
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 24/26
Digitally
signed by
VAIBHAV
VAIBHAV GARG
GARG Date:
2025.07.29
17:36:26
+0530
offending vehicle under the influence of alcohol.
48. In view of the above discussion, the accused is convicted for the offence
punishable u/S 279 IPC.
49. Section 338 IPC states that:
“Whoever causes grievous hurt to any person by doing any act so rashly or
negligently as to endanger human life, or the personal safety of others, shall be
punished with imprisonment of either description for a term which may extend
to two years, or with fine which may extend to one thousand rupees, or with
both.”
50. It has already been held that the accused was rash and negligent in
driving the offending vehicle. It remains to be examined whether while
driving his vehicle in rash & negligent manner, the accused had caused
grievous injuries to PW-2.
51. For the sake of brevity, the testimony of PW-2 is not reproduced here.
52. The MLC No. 1746/11 Ex. AD3 of PW-2 states that as per MLC X-ray
No. 654-655-656-657-658/5/9/11, nature of injury is grievous from
orthopedic view.
53. From the MLC Ex. AD3 and the X-ray reports, it is established that the
victim Naushad (PW-2) had suffered grievous injury during the accident
caused by the accused.
54. Thus, the prosecution has established beyond reasonable doubt, the guilt
of the accused and accordingly, the accused is convicted of the offence
punishable u/S 338 IPC.
55. Section 337 IPC states that:
“Whoever causes hurt to any person by doing any act so rashly or negligently as
to endanger human life, or the personal safety of others, shall be punished with
imprisonment of either description for a term which may extend to six months,
or with fine which may extend to five hundred rupees, or with both.”
56. It has already been held that the accused was rash and negligent in
driving the offending vehicle. It remains to be examined whether while
driving his vehicle in rash & negligent manner, the accused had caused
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 25/26
simple injuries to PW-8.
57. It is a matter of record that PW-8 has turned hostile.
58. The law regarding the appreciation of testimony of hostile witness has
already been discussed.
59. Perusal of the MLC No. 1747/11 Ex. AD4 of PW-8 states that as per
MLC X-ray No. 659-660-661/5/9/11, nature of injury is simple from
orthopedic view.
60. From the MLC Ex. AD4 and the X-ray reports, it is established that the
victim Raju (PW-8) had suffered simple injury during the accident
caused by the accused.
61. Thus, the prosecution has established beyond reasonable doubt, the guilt
of the accused and accordingly, the accused is convicted of the offence
punishable u/S 337 IPC.
62. In view of the above, the accused Rajesh Mandal s/o Sh. Ganesh
Mandal is convicted for the offences punishable u/S 279/337/338 of
IPC.
63. Copy of this judgment be given to the convict free of cost, forthwith.
Digitally signed by VAIBHAV VAIBHAV GARG GARG Date: 2025.07.29 17:36:39 +0530 Announced in the open court (VAIBHAV GARG) today. Judicial Magistrate First Class-11/
Central District/Tis Hazari Courts/ Delhi
29.07.2025
[This judgment contains 26 pages and each page bears the signature of
undersigned ]
FIR No.173/2011 PS. Kashmere Gate State Vs. Rajesh Mandal 26/26