Delhi District Court
State vs . Bhagwan Dass on 18 July, 2014
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. BHAGWAN DASS
FIR No. 335/1995
PS: MOTI NAGAR
U/S: 279/338/304 A IPC
Sr. no. of the case : 1055/2
Unique Case ID no. : 02401R1037052006
Date of commission of offence : 04.07.1995
Date of institution of the case : 20.01.1996
Name of the complainant : SI N.C. Thakur
Name of accused and address : Bhagwan Dass
S/o Sh. Nathu Singh
R/o 12/2m Gali No.10,
East Sagar Pur, New
Delhi.
Offence complained of or proved : U/s 279/338/304 A IPC
Plea of the accused : Pleaded not guilty
Final order : Convicted
Date of judgment : 18.07.2014
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BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. As per the prosecution, accused Bhagwan Dass was found running bus no.DL-1P-6277 on 04.07.1995 at about 09:50 AM near Raja Garden Chowk outside Janta X-ray in a manner so rash or negligent so as to endanger human life and public safety of other and while driving aforesaid vehicle in such a manner, he struck against scooter no.DL-4SF-3006 and caused death of one lady Sushila, who was pillion rider and caused grievous injury to one Mr. Tarun Sethi, who was the driver of the scooter. Accordingly, after the investigation, police filed the FIR No. 335/1995, PS Moti Nagar Page 1/13 present charge sheet against the accused.
2. Complete set of copies were supplied to the accused. After hearing arguments, notice U/s 251 Cr.P.C. was served against the accused by my Ld. Predecessor for trial of offence U/s 279/338/304-A IPC, to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined 12 witnesses.
4. PW1 Sh. Tarun Sethi is the person who was driving the victim scooter and sustained grievous injuries. It is deposed by him that on 04.07.1995, he was going on his scooter no.DL-4SF-3006 with his sister-in-law Sushila @ Preeti Sethi from Raghuvir Nagar to Moti Nagar to drop his sister-in-law. When he reached after the Raja Garden Chowk at Janta X- Ray clinic at Najafgarh Road, a bus no.DL-1P-6277 driven by the accused Bhagwan Dass struck his scooter from behind due to which, the scooter received force impact. It is further submitted that they dragged to a long distance along with scooter. It is further stated by him that he received leg injury. Some person took him to ESI Hospital. This witness also deposed that due to the accident, his sister-
in-law Sushila @ Preeti fell down at the spot and died due to the accident. It is stated by him that accident was caused due to rash and negligent driving of the accused. This witness was cross-examined on behalf of defence. During his cross-examination, it is accepted by him that he could not see the offending vehicle strucking his scooter from behind. It is also accepted by him that he became unconscious after accident. However, it is submitted by him that he knew that his sister-in- law died due to the accident as at that time he heard her sound. It is stated by him that there was traffic on the road at that time and due to the accident, they fell down on the left side. It is accepted by him that his statement was recorded 2-3 days after the accident in hospital when he came in his senses. It is accepted by him that he came to know the number of offending vehicle and name of the accused from Sh. Satish FIR No. 335/1995, PS Moti Nagar Page 2/13 Kumar, Sh. Suresh and Sh. Jai Kishan only after 2-3 days when he came into senses.
5. PW2 Subhash stated that on 04.07.1995 he was going from Subhash Nagar to Patel Nagar in TSR via Raja Garden and at about 09:50 AM when he reached near X-ray Clinic in front of Raja Garden Chowk, he saw that one bus no.DL-1P-6277 driven by the accused Bhagwas Dass (correctly identified the accused) in fast speed and careless manner struck with a scooter no. DL-4SF-3006 from behind. It is further stated that the scooter was being driven by a man Tarun Sethi and one lady was sitting on the pillion and that lady fell down from the scooter due to the accident and left wheel of the bus ran over the body of that lady. It is stated by him that PCR Van came at the spot. It has also been stated that the lady died on the spot. It is submitted by this witness that he immediately rushed to the address found in the bag of lady to inform about the accident to her family and after informing at the address, he came back to the spot and informed the police. This witness was cross-examined by defence. In his cross-examination it is stated by him that at the time of accident, he was on the right side of the offending vehicle in a TSR. However, the witness does not remember the number of the TSR. It is stated by him that he went to the address of the lady only after the PCR reached the spot. It is accepted by him that he had not seen any police proceeding at the spot. This witness could not remember if any other bus was also going alongside the offending vehicle. During cross-examination, this witness categorically submitted that he had seen the driver Bhagwan Dass after the accident. It is stated by him that the scooter was going on a distance of about feet from the offending vehicle. It is stated by him that one another person was also entrusted to give information about the incident to the injured's house. This witness rightly stated that the scooter fell down on the left side after the accident. It has also submitted by him that front left wheel of the offending vehicle ran over the body of the lady. It is admitted by him that no injured was removed to hospital in his presence.
FIR No. 335/1995, PS Moti Nagar Page 3/136. PW3 Sh. Gurdayal Dass is the father of the deceased Sushila @ Preeti. It is stated by him that on 04.07.1995 he was at his home when some person gave him information about the accident. On that, he reached the spot and found dead body of his daughter Sushila @ Preeti alongside bus no.DL-1P-6277. This witness identified the dead body of the deceased and received the dead body of the deceased after her postmortem. He exhibited his statement made in this regard as Ex.PW3/A bearing his signature at point A. In cross-examination, it is accepted by this witness that his other daughter received the information through telephone by someone and she informed him.
7. PW4 Dr. Satya Bansal from ESI Hospital has stated that on 04.07.1995 he was posted as Medical Officer at ESI Hospital and on that day he medically examined injured Tarun Sethi. This witness exhibited the MLC of Tarun Sethi as Ex.PW4/A. This witness was not cross-examined.
8. PW5 Sh. Pradeep Kumar Sethi is the husband of the deceased Sushila. He exhibited dead body identification memo as Ex.PW5/A and received the dead body after postmortem as Ex.PW5/B. This witness was also not cross-examined.
9. PW6 Sh. Jai Kishan Gautam stated that on 04.07.1995 he was going to attend classes at Shivaji College. At about 09:45 to 10:00 AM at a distance of 10 ft. from Raja Garden Chowk, he found one dead body of a lady on the ground. Her head was crushed and one boy namely Tarun Sethi was also lying on the road with his leg seriously injured. This witness has also seen a bus of route no.855 bearing no. DL-1P-6277. This witness correctly identified the accused. It is further stated that accused was in the driving seat of the bus and the public persons were taking him out from the driving seat and giving beatings to him. It has also stated that the bus was damaged by angry persons of locality. It is stated by this witness that he took injured Tarun Sethi with other persons to ESI Hospital, where he was admitted for medical treatment. However, it is stated by this witness that he had not seen the actual accident/impact by above said bus to the scooter. Testimony of FIR No. 335/1995, PS Moti Nagar Page 4/13 this witness is supported from the fact that MLC of injured Tarun Sethi shows that he was brought to the hospital by one Mr. Jai Kishan S/o Sh. Dharamvir i.e. PW6. This witness cross-examined on behalf of the accused. In his cross-examination, this witness could not tell the exact date on which his statement was recorded by the police. It is accepted by him that police had not done any proceeding at the spot in his presence.
10. PW7 Sh. Shyam Lal Chabra is the Mechanical Inspector, whose mechanical report in respect of scooter is exhibited as Ex.PW7/A and in respect of bus is exhibited as PW7/B.
11. PW8 W/HC Smt. Nirmala was the Duty Officer, who had recorded the present FIR on the basis of rukka. Carbon copy of the FIR is exhibited as Ex.PW8/A (OSR).
12. PW9 Ct. Dharamjeet was the police official who reached the spot alongwith IO. It is submitted by him that when they reached the spot, he found one dead body of a lady whose head was in complete damaged condition. They also found one bus bearing no.DL-1P-6277 and a two wheeler scooter no.DL-4SF-3006. It is stated by this witness that stepny of the scooter was in broken condition. It is further stated by him that at the spot they came to know that accident took place due to competition of the bus for overtaking. They also came to know that injured/scooter driver was taken to ESI Hospital and the bus driver was also taken by PCR vehicle. On these observed facts, rukka was prepared by the IO and this witness went to PS with rukka for registration of FIR and came back after registration of FIR. Then this witness went to Sabzi Mandi dead house (mortuary) alongwith dead body and the same was handed over for the postmortem to the authorities and after postmortem, the dead body was handed over to relatives of the deceased. This witness exhibited seizure memo of the bus as Ex.PW9/A, seizure memo of scooter Ex.PW9/B, arrest memo of the accused as Ex.PW9/C and seizure memo of DL as Ex.PW9/D. This witness was not cross-examined despite opportunity.
13. PW10 Dr. L.T. Rehmani was the doctor who conducted postmortem FIR No. 335/1995, PS Moti Nagar Page 5/13 on the body of deceased Sushila @ Preeti. He exhibited the postmortem report as Ex.PW10/A. It is opined by this witness that injuries were ante-mortem and were caused by vehicular accident. It is stated by him that death was due to Carnio Cerebral associated with shock (instantaneous death). This witness was also not cross- examined.
14. PW11 Sh. Satish Kumar stated that on 04.07.1995 at around 09:30 to 09:45 AM, he was going on his two wheeler scooter no.DL-5SF-2802 towards Jakhira and when he crossed red light to Raja Garden, one red line bus bearing no.DL-1P-6277 which was going ahead of him was driven at a fast speed and the said bus hit a two wheeler scooter from behind. The two-wheeler was bearing no.3006. This witness could not remember other digits. It is further stated that the pillion rider lady of that scooter fell down on the road and the left side front wheel of the bus ran over her head, due to which her head was crushed under the wheel of the bus. It is also submitted that the scooterist had also received injury. It is stated by him that the driver was apprehended by the public when he tried to flee. This witness correctly identified the accused present in the Court. It is stated by him that police reached the spot within 2-3 minutes. It has also been stated that injured was shifted to ESI Hospital. It is categorically submitted by him that accident occurred due to rash and negligent driving on the part of the accused. This witness was not cross-examined despite opportunity. However, later on an application U/s 311 Cr.P.C was moved on behalf of the accused which was allowed vide order dated 09.11.2006 with the condition that in case the witness are not found or traced, their examination-in-chief shall be read in evidence. Thereafter, summons and later on Bailable Warrants were issued to this witness. However, on 03.07.2007, it was observed by the Ld. predecessor that Bailable Warrants qua PW Satish remained unexecuted. As per report, address was not correct and no such named person had been residing on the given address. As the application moved by accused was allowed for recalling PWs Satish and Ram Dass for cross-examination subject to FIR No. 335/1995, PS Moti Nagar Page 6/13 their availability and PW Ram Dass has already been cross-examined and PW5 Satish was not traceable. After giving these observations, Ld. predecessor granted one more opportunity to the accused to furnish fresh address of PW Satish and again summoned him, however, no fresh address of PW Satish was filed on record by the accused. Hence, he could never be cross-examined. Thus this witness could never be traced, hence not cross-examined. However, as per the order whereby application U/s 311 Cr.P.C was allowed, chief-examination of this witness will be read in evidence.
15. PW12 Ram Dass stated that on 04.07.1995 he was on duty in MCD Office, Rajouri Garden and at around 09:45 AM he was taking work from the labour on Najafgarh Road, where he saw one scooterist alongwith a lady was going towards Moti Nagar on scooter no.DL-4SF-3006 and one bus bearing no.DL-1P-6277 came from behind in fast speed and hit the scooter from behind. Due to which the lady as well as scooterist fell down and front wheel of the bus crushed the head of said lady, due to which she died at the spot. Thereafter, he came at his job and then police came and recorded his statement. It is stated by this witness that public apprehended the driver of the bus and gave threshing to him. This witness correctly identified the accused present in the Court. It is categorically stated by him that accident had occurred due to rash and negligent driving of the accused. This witness was cross-examined after being recalled U/s 311 Cr.P.C wherein he admitted that he had not seen the accused while driving the bus. However, public persons present there were saying that accused was the driver. However, this witness stated that he has not seen the accident. Prosecution could not examine IO SI N. Thakur as he reportedly expired during pendency of trial.
THE DEFENCE :
16. Statement of accused U/s 313 Cr.P.C was recorded twice. Firstly on 07.04.2005 and again on 23.03.2011 as after first statement of accused, PW12 was examined again. In his statement dated FIR No. 335/1995, PS Moti Nagar Page 7/13 07.04.2005, it was stated by him that accident had already taken place before his bus reached there and he was not involved in the accident. In both the Statement of Accused, the accused controverted and denied the allegations levelled against him. Accused stated that he is innocent and has been falsely implicated in the present case. Accused opted not to lead any defence evidence.
THE ARGUMENTS:
17. Ld. APP for state has argued that eye witnesses have supported the prosecution and their testimony has remained unrebutted. That on a combined reading of prosecution witnesses testimony, offence U/s 279, 338 and 304A IPC are proved beyond doubt.
18. On the other hand, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused. Even the statements of alleged eye witnesses does not implicate the accused.
The case is based on circumstantial evidence at best and there is no incriminating evidence against the accused.
THE FINDINGS:
Offense U/s 279, 338 and 304-A IPC:
19. I have heard arguments from Ld. APP for State, Ld. Defence Counsel for the accused and perused the evidence and documents on record carefully.
20. The prosecution in this case had to prove the following :
1. Firstly, the identity of the accused as driver of the offending vehicle; AND
2. Secondly, the accident has taken place due to rash and negligent driving by the accused, causing death of victim Sushila @ Preeti Sethi and grievous injury to victim Tarun Sethi.
I) Identity of the accused as driver of offending vehicle :
21. PW7 Sh. Shyam Lal Chabra is the Mechanical Inspector, whose mechanical report in respect of scooter is exhibited as Ex.PW7/A and in FIR No. 335/1995, PS Moti Nagar Page 8/13 respect of bus is exhibited as PW7/B.
22. In this case, the accused denied that accident had taken place from his Bus. But there is categorical statement by PW2 and PW11 who were the eye witnesses, PW2 and PW11 categorically stated that when the Bus in question hit the Scooter of the victim, accused (correctly identified) was driving the bus, PW11 was not cross examined by the accused and in the cross examination of PW2 no suggestion was given to him that accused was not driving the offending vehicle, thus this fact become established that accused was driving the offending vehicle at the time of the accident. The testimony of PW2 and PW11 is supported by the testimony of PW6 who stated that immediately after accident he had seen that public was apprehending the accused bringing him out of the bus and giving beatings to him.
23. Thus, there is sufficient evidence on record to conclude that accused was driving the offending vehicle in question at the time of accident. Further, although in his statement U/s 313 Cr.P.C., accused took a defence that he reached the spot after accident but he failed to prove his defence. Despite positive evidence on record that he was present at the spot, he failed to lead any defence evidence at all to the contrary to prove his defence. Hence, it is concluded that his defence is nothing but an afterthought. In fact, he did not led any evidence in his favour nor could find out any material inconsistency in the story of the prosecution.
II) The accident has taken place due to rash and negligent driving by the accused, causing death of victim sushila @ Preeti and Grievous hurt to Tarun Sethi.
24. Thus the only controversy in this case revolves around the fact whether the accused was driving the vehicle in rash or negligent manner and if so what is the evidence produced by the prosecution to prove this fact. The onus is upon the prosecution to prove the allegations beyond reasonable doubt.
25. This court would like to refer to a judgment of the Honorable FIR No. 335/1995, PS Moti Nagar Page 9/13 Supreme Court of India elaborating the requirements of section 304-A of IPC. Quoting from Rathnashalvan v. State of Karnataka, (SC) 2007 A.I.R. (SC) 1064.
"Section 304-A 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 304-A. 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.
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 FIR No. 335/1995, PS Moti Nagar Page 10/13 regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.
26. In the background of such description of 'rash' and 'negligent' this court has to consider the facts of present case. In present case PW1, PW2, PW6, PW11 & PW12 are the eye witnesses of the accident who have demonstrated that accused was driving the vehicle in a rash or negligent manner. Now this court would analyze the evidence of eye witnesses.
27. PW1 has deposed that he was driving the scooter which was hit by a bus from behind due to which he suffered leg injury and his sister in law Smt. Sushila @ Preeti died. PW4 Dr. Satya Prakash proved on record the MLC of victim Tarun Sethi as Ex.PW4/A which shows that he had received grievous injury. PW10 Dr. L.T. Rehmani proved on recored Postmortem report of Smt. Sushila @ Preeti as Ex.PW10/A, which proves that she died due to antemortem injuries caused by vehicular accident. It is submitted by PW1 that offending bus hit them with force due to which they were dragged with the scooter. In his cross examination it is submitted by him that after accident they were fallen on the left side.
28. PW2 has stated that accused was driving the bus in careless manner and struck the scooter from behind, due to which pillion rider of the scooter fallen down and the front left wheel of the bus run over her body. PW11 has also stated that accused was driving the bus at a fast speed, the bus hit a scooterist from behind, due to which the pillion rider lady fell down and the left side front wheel of the bus ran over her body. Thus both the eye witness have correctly narrated the manner of accident. PW6 has also stated that though he had not seen the actual impact but he had seen dead body of a lady lying on the road and her head was crushed and one boy Tarun Sethi lying on the road with his leg seriously injured. This witness had taken the victim Tarun Sethi to the Hospital as also shown by MLC of the victim.
29. PW1, PW2, PW6 & PW11 are natural witnesses present on the FIR No. 335/1995, PS Moti Nagar Page 11/13 spot. Their statements are clear and consistent and implicating the accused person. On scrutinizing the evidence of such witnesses, it is proved that accused was driving the vehicle in a rash and negligent manner and caused the accident in question, as the offending bus hit a scooter from behind in the day light at around 09:50 am on a busy road and thereafter run over the pillion rider causing her death and dragged the scooter and scooter driver further. It is further not the case of the accused that PW's had any enmity with the accused so that they would falsely implicate the accused.
30. Further the statements of the eye witnesses are consistent with the evidence of other witnesses i.e the police officials as well as the medical evidence rendered by PW4 and PW10, on all material particulars.
31. It is argued on the part of defence that statement of victim Tarun Sethi was recorded after 2-3 days, this delay has been duly accounted as MLC of Tarun Sethi states that he was not fit for statement after accident. It is also argued that PW6 Jai Kishan Gautam was not present at the site as his collage classes would have started prior to the time of accident, this contention does not hold good as the MLC shows that this witness had brought the victim Tarun Sethi to the hospital. The contention that vehicle was mechanically inspected in stationary condition hence it cannot be said that it's brakes were working properly, also not hold good as the vehicle was damaged and burnt by the public after accident hence it was not possible to conduct the road test or to check the breaks, further more it has never been the defence of the accused that his vehicle was involved in the accident due to break failure.
32. Therefore, apart from certain minor inconsistencies, which are likely in the evidence of a natural witness and due to lapse of time since the date of accident and examination of witnesses in court, the testimonies of PW's are coherent and consistent and are implicating the driver of offending vehicle in question.
33. Thus, in my considered view, all the ingredient of Section 279, 338 FIR No. 335/1995, PS Moti Nagar Page 12/13 as well as 304 A IPC are satisfied. As such accused Bhagwan Dass is convicted for the offences U/s 279, 338 and 304 A IPC.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 18.07.2014 MM-04 (WEST)/DELHI
Containing 13 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 335/1995, PS Moti Nagar Page 13/13