Delhi District Court
State vs . Vinod Kumar on 17 May, 2019
IN THE COURT OF Ms. RICHA GUSAIN SOLANKI, METROPOLITAN MAGISTRATE, DWARKA COURTS, DELHI. FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Date of Institution of case: 12.05.2017 Date of Judgment reserved: 17.05.2019 Date on which Judgment pronounced: 17.05.2019 JUDGMENT
Unique ID no. : 3605/17
Date of Commission of offence : 04.02.2015
Name of the complainant : HC Devender Singh
Name and address of the accused : Vinod Kumar
persons s/o Sh. Karan Singh
r/o RZ22A, Main Gopal Nagar,
Gali no. 4, Najafgarh, Delhi.
Offence complained of : Under Section 279/337/304A IPC
Plea of accused : Not guilty
Date of order : 17.05.2019
Final Order : Convicted for offence under Section
279/337/304A IPC
BRIEF REASONS FOR DECISION:
1. The case of the prosecution in brief is that on 04.02.2015 HC Devender received DD no. 21A upon which he alongwith Ct. Sunil went to the spot of incident where he did not meet any victim or witness. He only found a car bearing no. DL 3C AC6505 in accidental condition. Beat Ct. Brij Mohan came to the spot with DD No. 26B informing that the injured were admitted in RTRM Hospital. Ct. Brij FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Page 1 of 14 Mohan left at the spot and HC Devender & Ct. Sunil went to RTRM Hospital and collected MLCs of victims Vivek and Amit and accused Vinod. Victims Vivek and Amit gave statements to the effect that they did not want any action. Subsequently on 12.02.2015 DD no. 35A was received regarding the death of victim Vivek. Further proceedings were handed over to SI Raj Kumar. SI Raj Kumar brought the dead body to RTRM hospital for post mortem and collected the documents from HC Devender. On the basis of aforesaid facts, present case FIR No.91/15, P.S. BHD Nagar was lodged for the offences under Section u/s 279/304A IPC.
2. Arguments were heard and charge for the offences u/s 279/337/304A IPC was framed against the accused to which the accused pleaded not guilty and claimed trial.
3. Prosecution examined seven witnesses:
3.1. PW1 Amit entered the witness box on 09.08.2018 and deposed that on 04.02.2015 at about 2:00 pm, his friend Vivek and Vikas came to his house in the TATA Safari and they all went to Anaj Mandi where they met accused and Narender. He stated that accused started driving and Narender sat besides him while remaining sat on the back seat. He stated that they all headed to Mundhela and when they reached near Kair College, Mitraon, the tyre of the driver side burst. He stated that due to this the vehicle lost its balance and hit against a tree.
He stated that in this accident they all suffered injuries and Vivek passed away. He stated that accused was arrested in his presence vide memo Ex PW1/A and his personal search was conducted vide memo Ex PW1/B. He stated that accused was not driving in a rash or negligent manner. The identity of the vehicle was not disputed by the accused.
In his cross examination by Ld APP, he stated that accused was not driving the vehicle at high speed and that the accident did not happen due to fault of accused.
FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Page 2 of 14 In his cross examination by Ld defence counsel, he stated that accused was driving the vehicle at the speed of 3540 kmph. He stated that there was traffic and pits on the road.
3.2. PW2 Vinod Kumar entered the witness box on 26.10.2018 and deposed that on 13.02.2015, he identified the dead body of his son Vivek and his statement Ex PW2/A was recorded by the IO.
In his cross examination, he admitted that Ex PW2/D1 bears his signature. He admitted that he did not give any complaint but denied that it was because he did not want any action against the accused. He stated that this was because he did not have any time since he was looking after his son. 3.3. PW3 Ankit entered the witness box on 26.10.2018 and deposed that on 13.02.2015, he identified the dead body of his brother Vivek and his statement Ex PW3/A was recorded by the IO.
3.4. PW4 Vikas entered the witness box on 26.10.2018 and deposed that on 04.02.2015 he alongwith his friends Vivek and Amit were going towards Bahadurgarh from Najafgarh in TATA Safari. At Anaj Mandi they met accused and his friend. He stated that accused told them that he wanted to meet someone at Mundela Kalan and accused started driving the car. He stated that he, Vivek and Amit were sitting on the back seat while accused and his friend were sitting in the front. He stated that when they reached near Kair College, the rear tyre of right side burst. He stated that due to this the vehicle collided against a tree. He stated that in this accident they all suffered injuries and Vivek suffered major injuries. He stated that the accident happened because the trye burst and the car was in high speed. The identity of the vehicle was not disputed by the accused.
In his cross examination by Ld APP, he stated that accused was not driving the vehicle in rash and negligent manner and denied that the accident happened due to negligence of accused.
FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Page 3 of 14 In his cross examination by Ld defence counsel, he stated that road leading to Khair College had some small pits and it was a busy road. He stated that accused was driving the car in a zig zag manner but there were no pits on the road. He admitted that the pits were not visible from the back seat where he was sitting and accused might have been driving in zig zag manner to avoid the pits. He admitted that he did not feel insecure that the car might meet with an accident when it was being driven in a zig zag manner. He stated that the speed of the car was around 5560 kmph when the tyre burst. He admitted that the tyre burst not due to any negligence of accused.
3.5. PW5 Sh. Raj Singh Rathi entered the witness box on 12.12.2018 and deposed regarding the identification of dead body.
3.6. PW6 Ct. Sunil entered the witness box on 12.03.2019 and deposed that on 04.02.2015 he and HC Devender went to the spot where the Tata Safari Car was found in accidental condition. He stated that he remained at the spot while HC Devender went to hospital. Thereafter, HC Devender returned and informed that the call is filed. Later on 22.03.2015 he joined the investigation with SI Raj Kumar. Thereafter, the site plan was prepared by the IO and the vehicle was seized vide memo Ex. PW6/A. Identity of the vehicle was not disputed by the accused.
3.7. PW7 SI Raj Kumar entered the witness box on 29.04.2019 and deposed on the lines of charge sheet. He stated that he received DD No. 35A regarding the death of the victim after which he went to the hospital with Ct Dharamvir. He stated that he sent tehrir Ex. PW7/A for registration of FIR and relied on DD No 21A as Ex PW7/B. He stated that he prepared site plan Ex. PW7/C. He stated that he seized the driving license Ex PW7/G of the accused vide memo Ex PW7/D and also the copies of RC & insurance of the offending vehicle Ex PW7/F vide memo Ex PW7/E. He stated that he also served notice FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Page 4 of 14 u/s 133 MV Act Ex PW7/H to the registered owner of the offending vehicle. In his cross examination, he stated that he had prepared brief facts of the case Ex PW7/DA. He admitted that the family members of the deceased had stated that they do not want any action. He stated that he did not ask HC Devender why the FIR was not lodged earlier.
4. Statement of accused u/s 294 Cr.PC was recorded wherein he admitted the genuineness and preparation of present FIR as Ex. P1, DD No. 26B Ex. P2, Post mortem report Ex. P3, DD No. 35A Ex. P4, DD No. 21A Ex. P5, DD No. 52B Ex. P6, MLCs Ex P7 and Ex. P8, treatment paper Ex. P9, Death Certificate Ex. P10, MLCs Ex. P11 and Ex. P12 and mechanical inspection report Ex P13.
5. Statement of the accused was recorded u/s 281 r/w 313 CrPC wherein he denied all the allegations made against him. He chose not to lead evidence in defence.
6. I have heard both the sides and perused the record.
7. To prove offence u/s 279/337/304A IPC prosecution had to prove that the accused was driving TATA Safari car bearing RC number DL 3C AC 6505 on a 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 person. Further, prosecution had to prove that while doing so accused actually caused hurt to victim Amit and caused death of victim Vivek.
8. At the outset it may be mentioned that the fact that on 04.02.2018 accused was driving TATA Safari car bearing RC number DL 3C AC 6505 wherein Amit, Vivek and Vikas were travelling on the back seat is not disputed by the accused. It is also not disputed that the said car collided against a tree near Kair College, Mitraon. It is further admitted by the accused that in this accident Amit suffered simple injuries as noted in MLC Ex P12, Vivek suffered injuries as noted in MLC Ex P7 and he himself suffered injuries noted in MLC Ex P11. It is also admitted that on 12.02.2018 Vivek passed away due to reasons mentioned in PM report Ex FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Page 5 of 14 P3.
9. There are only two questions of dispute: whether the accident happened due to rash or negligent driving of the accused, and if the first question is in affirmative, whether the death of Vivek is caused directly due to the accident.
10. First let us understand the meaning of a rash act and negligent act. As observed by Hon'ble Apex Court in Mohd Ayunuddin alias Miyam v State of A.P. cited at (2000)7 SCC 72 :
" 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."
11. The report of the mechanical inspection expert Ex P13 does not mention that the TATA Safari had any mechanical fault. Thus, the vehicle did not have any defect/mechanical issues that would result in an accident while it was being driven.
12. The case of prosecution is that the accident happened because accused was drunk and he was driving the vehicle in a rash or negligent manner.
In support of this, prosecution has relied on MLC of accused Ex P11 which notes that there was smell of alcohol coming from the accused and even that he misbehaved with the doctor on duty. Unfortunately, the alcohol meter was not functional. Further, as per Ex P11 accused refused for medical treatment (as is evident from the fact that he refused to get stitches done) and therefore the blood alcohol count could not be established either by alcohol meter or blood analysis.
Nevertheless, there was smell of alcohol from accused and accused has FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Page 6 of 14 admitted this fact without giving any explanation about the same. Thus, there is presumption against the accused that he had consumed alcohol, which he has not rebutted.
13. The eyewitnesses of prosecution have not supported its case. Both eye witnesses: PW1 and PW4 have stated that when the vehicle reached near Kair College, its tyre burst. They have both stated that due to this the vehicle lost its balance and hit against a tree and accused was not to be blamed. This version regarding the accident is not challenged by the accused. Although these two eye witnesses were also victims but they have deposed in favour of accused, who is admittedly their friend. However, it is the duty of this Court to do justice not only to these two victims but also to the third victim deceased Vivek and his family.
Now let us examine how truthful the accounts of PW1 and PW4 were regarding the accident. PW1 deposed that the tyre of the driver side burst while PW4 stated that the rear tyre of right side burst. Apart from the fact that both these witnesses contradicted each other, their accounts are also belied by mechanical inspection report Ex P13 which does not note any burst tyre. It only notes a punctured tyre, which is perfectly natural for a vehicle standing out in open for over 45 days (the inspection is dated 22.03.2015) Therefore, it is clear that the tyre did not burst and the accident did not happen because of tyre bursting.
14. PW1 has deposed that accused was driving the vehicle not at high speed and mentioned the same to be 3540 kmph. PW4 deposed that accused was driving at high speed in zig zag manner when the tyre burst and also mentioned the speed to be 5560 kmph.
Ld defence counsel has argued that PW4 was specifically put a question that accused was driving the car in zig zag manner to avoid pit is the road to which he did not deny and also he was also put whether he felt insecure when the accused FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Page 7 of 14 was driving it in zig zag manner, to which the witness replied in negative.
Thus, Ld defence counsel has argued that accused was driving cautiously to avoid the pits and he was not driving in a rash or negligent manner.
15. It is settled law that speed in itself cannot be the sole ground for judging whether the car was being driven rashly or negligently. Neither speed nor moving in zig zag condition can in itself show the rashness or negligence of the driver. When a vehicle is driven, it is only the driver who knows, considering the dynamics of the road condition, traffic, objects lying nearby, etc, as to how he should drive it. It is the duty of the driver of a motor vehicle to drive it in a manner so that it does not pose a danger to either himself or the other persons. Therefore, in each case a number of factors are to be considered.
Even if we were to assume that accused was not driving at a very high speed and he was trying to avoid the pits but it is established that accused was driving the vehicle in such a manner that he could not control the vehicle and the car rammed in to a tree so badly that both the doors on the left side of the car as well as roof of the car got damaged and all the passengers got injuries and one passenger Vivek on the back seat sustained grievous injuries. The car in question is TATA Safari which has a tough body. Whether it was the speed or accused being under influence of liquor or he being plain adventurous, the fact remains that he drove it in such a manner that he could not control it. The loss of control is not attributed to any mechanical defect or any other external force. This itself raises a presumption that accused was either rash or negligent in his driving. Reliance is placed on judgment in the case of Mohd. Aynuddin (supra) wherein it was observed that:
"7. .....An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part.....
FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Page 8 of 14
8. The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstance would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer"
16. Reliance is further placed on the judgment in the case of Ravi Kapur v. State of Rajasthan cited at (2012) 9 SCC 284 wherein Hon'ble Apex Court observed that :
"...We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someones negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as :
- The event would not have occurred but for someone's negligence.
- The evidence on record rules out the possibility that FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Page 9 of 14 actions of the victim or some third party could be the reason behind the event.
- Accused was negligent and owed a duty of care towards the victim."
17. The above quoted observations squarely apply to the present case. Prosecution has discharged its onus of proving that the accused was driving the TATA Safari in a zig zag manner which met with an accident although the vehicle was roadworthy. It is also proved that there was smell of alcohol from the accused immediately after the accident when he was medically examined. The tree was stationary, of course, and there is no external factor that led to the vehicle losing its track and colliding with the tree, which was on the extreme left of the road.
Why could the accused not see a tree on side of the road, why did he lost the track on which the car was treading and why was there a smell of alcohol from him are the burning questions? This information was available only with the accused. However, accused is completely silent on this. He has accepted the tyre burst story of PW1 and PW4, which, as noted above, is not true. In this regard, reliance is placed on the judgment in the case of Thakur Singh v. State of Punjab cited at (2003) 9 SCC 208 wherein Hon'ble Apex Court observed that :
"...It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts on to the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part."
18. So much so, there is no explanation from him even in his statement under Section 313 r/w 281 Cr.P.C. regarding either the incident or the smell of alcohol noted in his MLC. In this regard, reliance is placed on the judgment in the case of Ravi FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Page 10 of 14 Kapur (supra):
" 35. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C. are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."
19. Further, the perception of PW4 is also subjective. He may have been assuming that accused would be able to control the vehicle, albeit, the car was driven at high speed in zig zag manner but then did he also know that accused had consumed alcohol? Can his perception be taken as the perception of a reasonable man if he knew that accused had consumed alcohol? The answer has to be negative.
20. Ld defence counsel has also pointed out that the father and brother of deceased did not want any legal action till 13.02.2015 as is recorded in statement Ex PW2/D1. However, only the signatures on Ex PW2/D1 were put to the witness and not the contents. It is settled law that admission of signature on a document cannot be equated to admission of the contents of such document. PW2 clarified that he did not give any complaint because he did not have any time since he was looking after his son and not because he did not want any action against the accused.
21. Ld defence counsel has also pointed out that the initial MLC of victim Vivek notes that he did not want any legal action for his injuries.
22. It is unfathomable as to why the HC Devender Singh took such undertaking from FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Page 11 of 14 the victim once he had the noting of doctor that there was smell of alcohol from accused. This desperate attempt of HC Devender Singh to hush the matter is a clear dereliction of his duties. The undertaking of victim Vivek is not believable. Unlike the undertaking of accused in MLC Ex P11, Vivek did not put his signatures but his thumb impression on the undertaking. The reason appears to be that he was severely injured and could perhaps not even write his name at that time. This victim would eventually pass away after some days of putting such thumb impression. There was smell of alcohol from the victim at the time of preparation of his MLC. One does not even know if victim Vivek was in a fit state of mind to give such undertaking. In any case, it was not open to either the victims or their families to compound the offence under Section 279 IPC.
23. Accused took the risk of driving the car in zig zag manner in high or moderate speed after consuming alcohol and with the hope that it would not have any dire consequences, which unfortunately did follow because he was ultimately not able to control the car. He failed to exercise reasonable & proper care and precaution guarding against injury to the passengers of his car.
Thus, it is established beyond reasonable doubt that accused was driving TATA Safari car bearing RC number DL 3C AC 6505 on a 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 person. Therefore, offence u/s 279 IPC is established beyond reasonable doubt against the accused.
24. It is deposed by PW1 and PW4 that they all suffered injuries in this accident. The MLC of victim Amit, which is Ex P12, notes simple injuries. Both these aspects are unchallenged by the accused. Therefore, it stands proved that while driving the car in rash or negligent manner, accused caused simple hurt to victim Amit and thus offence u/s 337 IPC is established beyond reasonable doubt against the accused.
FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Page 12 of 14
25.It is deposed by PW1 that due to this accident, victim Vivek passed away. He was not crossexamined by the accused on this statement. Although it was put to PW2 that victim Vivek passed away due to negligence in providing him proper medical treatment, the same is illfounded.
There is nothing on record to suggest that victim Vivek was not given proper medical treatment. His discharge from RTRM hospital and then from BPS Govt. Medical College, Sonipat are not leave against medical advice. Rather it only shows the endeavours of the family to secure proper treatment for the victim.
As per MLC of victim Vivek, which is Ex P7, he had no major external injuries but he complained of chest pain. His subsequent treatment papers Ex. P9 would show that victim Vivek had suffered serious internal injuries. He had fracture of femur shaft, raptured diaphragm, intrathoracic herniation of stomach and gangrene of the stomach. Victim Vivek underwent a number of operations and finally on 12.02.2015 he passed away. As per postmortem report Ex. P3 victim Vivek suffered septicemic shock following the complications arising out of his multiple injuries. These injuries were all result of the accident dated 04.02.2015. Therefore, it stands proved that while driving the car in rash or negligent manner, accused caused death of victim Vivek and thus offence u/s 304A IPC is established beyond reasonable doubt against the accused.
26. Before parting with the judgment I deem it extremely important to highlight the conduct of HC Devender Singh in this case. The Court is particularly disturbed by the fact that instead of taking action on DD No. 21A dated 04.02.2015, he acted utterly illegally by taking thumb impression of victim Vivek on the MLC itself that the victim did not want any action. As noted above, it appears that victim Vivek was not even in fit state of mind when his thumb impressions were taken. It is also peculiar to note that another victim Amit, who suffered lesser injuries, neither gave a statement (like accused and Vivek) nor any undertaking on MLC (like accused FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Page 13 of 14 and Vivek). Why did HC Devender not record the statement of victim Amit immediately? On 04.02.2015 itself it had become clear that the driver of the accidental car was under influence of alcohol. HC Devender Singh had collected the MLC of the victims. He had seen how badly the victims were injured. He was told that the tyre had burst but he did not even check the same; it was something he could have seen with bare eyes.
Time is of essence in every investigation but in this case the investigation started one day after the victim Vivek passed away. Naturally a lot could have been done if the investigation had started at the right time.
27. To conclude, accused Vinod Kumar is convicted for offences u/s 279/337/304A IPC. Copy of the judgment be given free of cost to him.
Digitally signedRICHA by RICHA GUSAIN GUSAIN SOLANKI SOLANKI Date: 2019.05.17 16:28:20 +0530 Announced in open court today (Richa Gusain Solanki) on 17th of May 2019 Metropolitan Magistrate07 Dwarka District Court/Delhi FIR No. : 91/2015 U/s : 279/304A/337 IPC P.S : BHD Nagar State Vs. Vinod Kumar Page 14 of 14