Delhi District Court
State vs . Raghuvir Singh & Ors. on 4 May, 2018
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR NO. DL CT020002792009
CIS No. 294465/16
State Vs. Raghuvir Singh & Ors.
FIR No. 185/08
PS. Kamla Market
U/s. 279/304A IPC, 3/181 MV Act and 5/180 MV Act.
JUDGMENT
1) The date of commission of offence : 05.11.2008
2) The name of the complainant : Inderjeet Singh
3) The name & parentage of accused : 1. Raghuvir Singh
S/o. Dilawar Singh
R/o. C121, Garwal Store,
Punjabi Bagh, Delhi.
2. Kharak Singh
S/o Ram Singh
R/o Village Godhan, PO
Majipur, District Hoshiarpur,
Punjab.
4) Offence complained of : 279/304A IPC
3/181 MV Act and 5/180 MV
Act
5) The plea of accused : Pleaded not guilty
6) Final order : Accused Raghuvir Convicted
Accused Kharak Singh Acquitted
7) The date of such order : 04.05.2018
Date of Institution : 07.10.2009
Judgment reserved on : 16.04.2018
Judgment announced on : 04.05.2018
THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of prosecution against the accused Raghuvir Singh is that on
05.11.2008 at about 00:30 AM at GB Road, in front of brothel no. 42 within
the jurisdiction of PS Kamla Market he was found driving truck no. HR 38E
1698 (herein after as 'offending vehicle' for short) in rash or negligent manner
and while so driving hit against a scooter bearing no. DL 8HS 1505 and
caused death of one Virender Sehgal @ Vicky. Further the accused Raghuvir
Singh was not having valid Driving License at the time of incident.
1.1 The case of prosecution against the accused Kharak Singh S/o Ram Singh is that he being the registered owner of HR 38E 1698, allowed Raghuvir Singh to drive the same who was not having valid driving license.
2) After completion of investigation, charge sheet was filed against the accused persons. In compliance of Sec. 207 Cr.PC, documents supplied to the accused persons. Arguments on point of notice were heard. Vide order dated 20.04.2011, a notice u/s. 279/304A IPC r/w 3/181 MV Act was served upon the accused Raghuvir Singh, to which he pleaded not guilty and claimed trial. On the same day a separate notice U/s 5/180 MV Act was served upon the accused Kharak Singh, to which he pleaded not guilty and claim trial.
3) In support of its case, prosecution has examined eight witnesses. Statement of accused persons were recorded under section 313 Cr.P.C in which they denied all the allegations and did not wish to lead DE.
4) I have heard the arguments of Ld. APP for State and Ld Counsel for accused persons. I have also perused the record carefully.
5) The testimony of prosecution witnesses is being touched upon, in brief, as follows as: Eye Witness.
5.1 PW5 Sh Inderjeet Singh deposed that on the day of incident he along with his friend Sh Virender Sehgal were going towards Lahori Gate on a scooter no. DL 8SH 1505 make LML Vespa. He deposed that deceased Virender Sehgal was driving the scooter while he was sitting as pillion rider. He deposed that when they reached in front of brothel no.42 GB Road, the offending vehicle came from behind being driven in negligent manner and dashed against their scooter for which he fell down on the pavement while his friend Virender Sehgal came under the wheels of truck and got expired. He deposed that accused Raghuvir was driving the offending vehicle. He deposed that accused Raghuvir was arrested in his presence.
Witnesses to the Investigation.
5.2 PW2 Sh Surender Singh, DHG Constable deposed that on 05.11.2008 he joined the investigation of the present case with the IO. He deposed that he along with the IO reached at the spot where they found the offending truck and scooter of victim standing on the road. He deposed that the driver of offending bus was also present at the spot, whose name was Rahguvir Singh and was arrested at the spot in his presence. He deposed that site plan was prepared and the vehicles were seized vide Ex.PW2/B and Ex.PW2/C respectively.
5.3 PW3 Ct Subhash and PW7 SI Jai Pal Singh deposed on the same lines that on 05.11.2008 after receiving DD no. 5 B they went to the spot of accident where they found the offending vehicle and scooter of victim standing at a side. They went to the LNJP Hospital and collected the MLC of deceased Vicky who was declared brought dead. They deposed that they met eye witness Inderjeet Singh at the hospital whose statement was recorded. Tehrir was prepared and FIR got registered. Postmortem of deceased was got conducted. Site plan was prepared. Offending vehicle and scooter of the victim was seized. Accused was arrested and personally searched. Case property deposited in malkhana. The accused Kharak Singh was also arrested and personally searched. Mechanical inspection of both the vehicles were got conducted.
Formal Witnesses.
5.4 PW1 Subhash Chand identified the dead body deceased Virender Sehgal in the mortuary of MAMC Hospital vide identification memo Ex.PW 1/A. 5.5 PW4 Ct Kuldeep Singh deposed that he deposited the viscera of the deceased in the FSL vide RC no. 25/21 dated 27.03.2009.
5.6 PW6 HC Ajay deposed that on 05.11.2008 a scooter no. DL 8SH 1505 and truck no. HR 38 E 1698 was deposited in malkhana for which entry was made in register no.19 vide serial no. 2580 Ex.PW6/A. 5.7 PW8 Raj Kamal Jain deposed that his wife Anju Jain is the registered owner of offending vehicle and she executed a GPA in his favour qua the offending truck. He deposed that when the notice U/s 133 MV Act was served upon him to which he replied that accused Kharak Singh was the driver of offending vehicle while accused Raghuvir was the helper. He proved his reply Ex.PW8/A.
6) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
7) In order to appreciate contentions of the parties and to decide the facts in issue it is necessary to first examine the provisions of Section 279/304A IPC.
"Section 279 Rash driving or riding on a public way: Whoever drives any vehicle or rides or 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 the imprisonment of either description for a term which may extend to six months or fine which may extend to one thousand or with both."
For the offence U/s 279 IPC the important ingredient that there should be rash or negligent driving by the accused and such rash or negligent driving should be of kind as to endanger any human life or likely to cause hurt or injury to any person. For an offence to be proved U/s 304A IPC there ought to be death of a person, such death should have been caused because of rash or negligent act of the accused and such act should not have amounted to culpable homicide.
"304A Causing death by negligence Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both".
8) The first poser before this court is regarding the identification of accused being the driver of offending vehicle. This is the prime requirement that it is to be established by the prosecution that accused Raghuvir was driving the offending truck on the day of incident. Ld Defence Counsel argued that accused Kharak Singh was driving the vehicle and not the accused Raghuvir. Qua this fact the testimony of PW5 Sh Inderjeet Singh is relevant. PW5 categorically deposed that the offending vehicle was being driven by the accused Raghuvir Singh. The testimony of PW5 remained unshaken in the crossexamination done by the Defence Counsel as far as identification of accused being the driver of offending vehicle is concerned. Merely arguing that the accused Raghuvir is falsely implicated in the present case by the prosecution does not hold any merit. It is to be proved by the accused as to what are those alleged facts which creates motive for the police to falsely implicate the accused Raghuvir as the driver of offending vehicle. Here only, the statement of the accused recorded U/s 313 Cr.PC can also be considered. When the Ld Predecessor put the accused Rajhuvir that he disclosed to the police that accused Kharak Singh was driver of offending vehicle than the accused replied this is incorrect. PW7 deposed that when he reached at the spot he found accused Raghuvir Singh, who was the driver of the offending truck at the spot. PW7 stood test of crossexamination on this aspect. I found no reason to disbelieve the testimony of PW7 on this fact. Further, if the accused Raghuvir was falsely implicated as the driver of offending vehicle by the IO than he must have moved to higher police officials against the misdeeds of IO but nothing of this sort was done by the accused. It seems that this plea was taken by the accused Raghuvir just to create confusion in the trial and to have benefit of the same. This court has no doubt to hold that the accused Raghuvir was the driver of offending vehicle.
9) It is not in dispute that the deceased Virender Sehgal @ Vicky expired due to the road traffic accident. PW1 Subhash Chand identified the dead body of deceased Virender Sehgal @ Vicky in the mortuary of MAMC Hospital and his testimony remained unchallenged. The postmortem report and MLC of deceased Virender @ Vicky is admitted by the accused persons and qua this the statement of accused persons dated 19.08.2011 is on record. Doctor opined in postmortem report that the injuries suffered by the deceased is possible due to road traffic accident. In view of the admissions of the accused, and the testimony of PW1 it s proved on recorded that Virender Sehgal @ Vicky expired due to road traffic accident in question.
10) Now, the issue is of rash or negligent driving by the accused Raghuvir. The offending vehicle in the present case is the truck. It is important to discuss here that it is also the case of the prosecution against the accused Raghuvir that he was not having any driving license. It came in the testimony of PW7 SI Jai Pal that the accused Raghuvir Singh did not have any driving license. It is not put to the IO by the Defence Counsel that accused Raghuvir Singh was having driving license. Accused also not shown the driving license. In view of the testimony of the IO and the fact that the driving license has not been produced by the accused during the trial, it is proved that the accused Raghuvir was driving the truck without having driving license. Driving a heavy vehicle like a truck without driving license issued by competent authority is a dangerous act. The concerned authority takes several driving test before issuing commercial driving license for heavy vehicle. In the present case the accused even did not have a private license even to drive a two wheeler but despite that he was driving the truck. This makes out the offence U/s 3/181 MV Act against the accused Raghuvir and this fact is also relevant and will be considered while dealing the issue of rash or negligent driving.
11) PW5 Sh Inderjeet Singh deposed that on the day of incident he along with his colleague Virender Sehgal @ Vicky were going on a scooter bearing no. DL SH 1505. He deposed that the deceased Virender was driving the scooter while he was sitting as pillion rider. He deposed that the offending truck came from the back side in negligent manner and hit against their scooter from back side for which he fell down on the side of pavement while the driver Virender @ Sehgal got crushed under the wheels of the truck. It is nowhere put to PW5 that the scooter was not hit from the back side by the truck. No suggestion to this effect was put to PW5. Thus, it is not disputed on behalf of accused that the scooter was being hit from the back side. The mechanical inspection report of the scooter corroborates the testimony of PW 5 that the scooter was being hit from back side. It is mentioned in the mechanical inspection report of the scooter that the rear seat and bracket badly damaged. The mechanical inspection report of the truck is to the effect that there are minor scratches at the front side of the bumper. These mechanical inspection reports have been admitted by the accused vide statement dated 19.08.2011. If these proved mechanical inspection reports be read with the testimony of PW5 than it came on record that the scooter was being hit from the back side by the offending truck. The scratches at the bumper of the truck and the damaged back side body of the scooter proves that the scooter was hit from the back side and the testimony of PW5 is trustworthy on this aspect also.
12) Ld Defence Counsel argued that merely hitting a scooter from the back side is not rash or negligent driving in itself. On this aspect Defence Counsel relied upon judgment titled as Abdul Subhan Vs State NCT of Delhi, 133(2006) DLT562, State of Karnatka Vs Satish VIII(2006) SLT 294 and Bijuli Swani Vs State of Orrisa 1981. Criminal Law Journal 583 decided by Hon'ble High Court of Orrisa. Per contra, Ld APP for the State vehemently argued that hitting a scooter from the back side by the truck driver itself shows that the sufficient distance was not maintained which is negligent driving in itself and thus the accused was negligent in driving the offending truck. Ld APP for the State further argued that driving a heavy vehicle without having driving license is in itself rashness on the part of accused.
13) It is well settled principle of law that what is rash or negligent varies from case to case and there cannot be any fixed parameters for judging rashness or negligence. At the same time, there cannot be any assumptions/presumption of the same. Rashness consist in doing hazardous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lie 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 omission or 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 risen, was the imperative duty of the accused person to be adopted (Niranjan Singh Vs State (Delhi Administration), (Delhi) 1997(I) R.C.R (Criminal) 320).
14) The relevant facts of the present case to decide the issue of rashness or negligence on the part of driver of offending vehicle is that the incident took place in the midnight and at GB Road, which is a crowded place. Moreover the driver of the offending truck namely Raghuvir was not having valid license. Further as per site plan Ex.PW7/B the incident took place in the middle of the road. A driver of a heavy vehicle has to maintain a safe distance from the other vehicle. Further the heavy vehicle have to ply towards the left of the road. If a scooter has been hit from the back side and that too at the middle of the road during the midnight is in itself sufficient to make out a negligence on the part of driver of offending vehicle. The driver of the offending vehicle is duty bound to maintain a safe distance from other vehicle and to ply at the left side. These duties have been breached by the driver accused Raghuvir in the present case and this makes out negligence on his part. This is not the case of accused that the scooter driver suddenly came in front of the truck or there was any blind cut on the road from which the victim suddenly came in front of truck. No suggestion to this effect has been given by Ld Defence Counsel to the eye witness PW5. The GB Road where accident took place is not a dark spot and this could not be assumed that the accused was not able to see the scooter due to darkness. In the mechanical inspection report there is nothing on record that the offending truck had any mechanical defect. Thus it was the act of accused which resulted into incident in question. Hence the driving of truck by the accused Raghuvir without having driving license, driving the truck in middle of the road, not maintaining sufficient distance from the other vehicles and hitting a scooter from the back side is the negligent driving on the part of accused Raghuvir and is proved on record. Support could be drawn from judgment titled as Bikram Singh Vs Government of NCT of Delhi Criminal revision petition 624/15 decided on 13.10.2015 by Hon'ble High Court of Delhi.
15) Ld Defence Counsel argued that since the scooter was hit from the back side and hence it was not possible for the pillion rider/PW5 to see the manner of driving of the accused and as such PW5 could not comment as to whether there was negligence on the part of accused or not. In the considered opinion of this court this argument hold no relevancy in view of the above discussion when this court concluded that in the facts of the present case hitting the scooter from the back side is in itself a negligent driving. Accordingly, the room for PW5 to see the driving the accused Raghuvir prior to hitting the scooter is not relevant.
16) It is also argued that the PW5 is a planted witness as it is not possible that PW5 did not suffer any injury despite being pillion rider of the scooter, the driver of which got expired. Prima facie this arguments seems to be relevant but it cannot be assumed that if two persons going on vehicles which was being hit from the back side than both the riders would suffer injuries. It is possible that due to the heavy impact one rider fallen down on the other side of the road, pavement in the present case as deposed by PW5, and other got crushed by the vehicle. No presumption could be drawn that in case of two wheeler being hit by a heavy vehicle both the riders would suffer injuries. Further the manner in which PW5 stood the test of crossexamination rules out of he being a planted witness in the present case. The testimony of PW5 is trustworthy and full reliance could be placed upon PW5.
17) The judgment of Abdul Subhan (Supra) is not applicable to facts of the present case as in that case the issue was whether the high speed in itself is rash or negligent driving or not. The issue of speed of offending truck is not relevant in the present case. Similarly the judgment of State of Karnatka Vs Satish(Supra) wherein it is held that the 'high speed' is a relative term and the maxim res ipsa loqutur is not applicable to prove rashness, is not relevant to the facts of the present case. In the present case there is no issue of 'high speed' and the maxim res ipsa loqutur is not made applicable in the present case. The judgment of Bijuli Swain(Supra) has different facts as there was no eye witness in that case and prosecution was not able to prove rashness or negligent driving, which is not so in the present case.
18) Hence it is proved on record that on 05.11.2008 at about 00:30 AM the accused Raghuvir was driving the truck no. HR 38 E 1698 in negligent manner without having driving license and hit against a scooter bearing no. DL 8HS 1505 from behind being driven by Virender Sehgal @ Vicky which resulted into death of Virender Sehgal. The offence U/s 279/304A IPC and 3/181 MV Act stands proved against the accused Raghuvir Singh.
19) The accused Kharak Singh is facing trail for the offence U/s 5/180 MV Act. He was not the registered owner of the offending truck. Here the testimony of PW8 is relevant. PW8 deposed that his wife is the registered owner of the truck and he has GPA in his favour qua the truck. He deposed that the notice U/s 133 MV Act was served upon him. The testimony of PW8 remained unchallenged. Thus the prosecution admits that Ms Anju Jain was the registered owner of the truck and her husband Raj Kamal Jain/PW8 was the GPA holder of the truck. PW8 deposed that the truck was given to Kharak Singh for driving. If the vehicle was given o Kharak Singh for driving purpose only than this would not make him the owner or the person having actual control/in charge over the truck. The offence U/s 5/180 MV Act is not proved against the accused Kharak Singh and thus he is hereby acquitted from the present case.
Conclusion
20) Accused Raghuvir Singh is convicted for the offence U/s 279/304A IPC and 3/181 MV Act. Accused Kharak is acquitted from the present case. Copy of this judgment be supplied to accused Raghuvir Singh free of cost. Be heard on point of sentence.
Let the bail bonds U/s 437A be furnished by accused Kharak Singh.
Digitally signed KAPIL by KAPIL
KUMAR
KUMAR Date: 2018.05.04
15:14:02 +0530
Announced in open court (Kapil Kumar)
on 04.05.2018 MM5/Central District
Tis Hazari Courts/Delhi,