Delhi District Court
State vs . Brij Kishore on 13 January, 2014
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE04,
SOUTH DISTRICT, NEW DELHI
STATE VS. Brij Kishore
FIR NO: 293/07
P. S. Ambedkar Nagar
U/s 279/304 A IPC
Unique ID no. 02403R0601282007
JUDGMENT
Sl. No. of the case : 334/2 (17.7.2007) Date of its institution : 17.7.2007 Name of the complainant : Smt. Madhubala Date of Commission of offence : 18.4.2007 Name of the accused : Brij Kishore Offence complained of : Section 279/304 A IPC Plea of accused : Not Guilty Case reserved for orders : 13.12.2013 Final Order : Convicted Date of Judgment : 13.1.2014 BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the prosecution of the accused Brij Kishore pursuant to a charge sheet filed by the Police Station Ambedkar Nagar under section 279/304 A Indian Penal Code, 1860 (for short ''IPC'') subsequent to the investigation carried out by them in FIR no. 293/07.
2. The broad essential facts as put forth by the prosecution are that on 18.4.2007, State Vs. Brij Kishore 1/14 FIR no. 293/07 complainant Madhubala was sitting on the cot just on the gate of her house/plot and her son Suraj who was aged about 21/23 years old was playing just outside the gate of her house in a narrow gali/street. Some other neighbourers were also present there with her and in the meantime, at about 7 pm, the accused came in a Tavera car bearing no. HR 55 ET 1341 in a very fast speed and hit her son who sustained severe injuries in the said accident. Thereafter, public persons have gathered at the spot and caught hold of the accused and asked him to take her injured son to the hospital and thereafter she alongwith her injured son were taken by the accused in his said car. On the way, complainant asked the accused to stop the car and got down from the car and with the help of some public persons took her son to AIIMS hospital. In the hospital, her statement Ex.PW1/A was recorded by the police which culminated into registration of present FIR.
3. After the criminal law was set in motion, the investigating agency commenced the investigation and in the course of investigation prepared site plan, seizure memo of offending vehicle, dead body identification memo, collected MLC and post mortem report, arrest and personal search memo of the accused, recorded the statement of witnesses and after completion of other formalities laid the charge sheet for the offences punishable u/s 279/304 A IPC.
4. Accused was formally charged under section 279/304 A IPC to which he pleaded not guilty and claimed to be tried.
5. To substantiate the charges, the prosecution examined as many as eight witnesses. The prosecution exhibited number of documents which included, statement of complainant as Ex.PW1/A, site plan Ex.PW6/D, seizure memo of vehicle no. HR 55 ET 1341 as Ex.PW6/C, dead body identification statement as Ex.PW2/A, handing over State Vs. Brij Kishore 2/14 FIR no. 293/07 memo of dead body as Ex.PW2/B, MLC of injured as Ex.PW5/A, arrest memo as Ex.PW1/B and personal search memo Ex.PW6/F.
6. PW 1 Smt. Madhubala is the main eye witness who deposed that on 18.4.2007, she was sitting on the cot just on the gate of her house/plot and her son Suraj who was aged about 21/23 years old was playing just outside the gate of her house in a narrow gali/street. Some other neighbourers were also present there with her and in the meantime, at about 7 pm, the accused came in a Tavera car in a very fast speed and hit her son and her son sustained severe injuries in the said accident. Thereafter, public persons have gathered at the spot and caught hold of the accused and asked him to take her injured son to the hospital and thereafter she alongwith her injured son were taken by the accused in his said car. However, the accused instead of taking them to a hospital kept roaming his car here and there upto 12 mid night and when she protested, he stopped his car and thereafter ran away from there after leaving his car there. Thereafter, she raised alarm for the help and after hearing her shouting some public persons gathered there and one of them helped her in taking her son to the hospital where the doctors have declared her son as dead after attending him. Thereafter, the police came to the hospital on being summoned by anyone and inquired about the entire incident from her and recorded her statement Ex.PW1/A. Accused was arrested in her presence vide memo Ex.PW1/B. She was cross examined by Ld. Counsel for the accused.
7. PW 2 Sh. Prem Chand proved the dead body identification of his son Suraj as Ex.PW2/A. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
8. PW 3 Sh. Jeet Singh deposed that on 22.6.2007, he had taken the injured child aged State Vs. Brij Kishore 3/14 FIR no. 293/07 about 34 years and his mother to AIIMS hospital in his ambulance no. DL 1A 1195 as he was working as a driver in Sawan Neelu Angels Nursing Home, Saket on the request of Ct. Deepak Tiwari. The said child had sustained injuries in an accident and got him admitted in the AIIMS. He was cross examined by Ld. Counsel for the accused.
9. PW 4 Sh. T.U. Siddiqui proved the mechanical inspection of vehicle bearing no. HR 55 ET 1341 as Ex.PW4/A. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
10. PW 5 Sh. Rajbir Singh, Record Clerk, AIIMS hospital proved the MLC of injured Suraj prepared by Dr. Thakur Anurag Singh as Ex.PW5/A. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
11. PW 6 HC Billu Singh deposed that on 18.4.2007, he was posted at PS Ambedkar Nagar and on that day, on receiving DD no.22 regarding accident, he alongwith Ct. Jagpal reached AIIMS hospital where one Suraj aged about three years was brought to the hospital and the doctors have declared him brought dead on his MLC no. 43764/07. At the hospital, Smt. Madhubala, the mother of the deceased was found present who narrated the entire incident and he accordingly recorded her statement Ex.PW1/A and prepared the rukka Ex.PW6/B and sent Ct. Jagpal to the police station for the registration of FIR. Thereafter, he went to PP Saket and seized the offending vehicle bearing no. HR 55 ET 1341 make Tavera vide seizure memo Ex.PW6/C. Thereafter, he alongwith the complainant went to the spot i.e near Gali A63, Durga Vihar, Devli near Durga Temple and prepared the site plan at the instance of the complainant Ex.PW6/D and recorded his supplementary statement. The dead body was got preserved in the mortuary where the dead body of the deceased was got State Vs. Brij Kishore 4/14 FIR no. 293/07 identified by his father vide memo Ex.PW2/A and by her mother also vide memo Ex.PW6/E. The post mortem of the dead body was got conducted and after post mortem, the dead body was handed over to them vide memo Ex.PW2/B. The mechanical inspection of the vehicle was got done. On the same day, at around 6.30 pm, the registered owner of the offending vehicle one Sh. Dinesh produced the accused in the police post Sainik Farm where after interrogation, he arrested him in presence of complainant Smt. Madhubala who correctly identified the accused vide arrest memo Ex.PW1/B and conducted his personal search vide memo Ex.PW6/F. The D/L of the accused was taken into possession vide memo Ex.PW6/G. The photocopies of the documents of the offending vehicles were also seized. He recorded the statement of witnesses and filed the challan in the Court. He was cross examined by Ld. Counsel for the accused.
12. PW 7 Sh. Mohit Sharma deposed that on 18.4.2007, he was present at his grocery shop which was just outside his house and there was a lane in front of his shop and on the other side of the said lane there is a vacant plot in which only one room was constructed. At around 8 pm, he saw that the driver of the Tavera car, registration number of which he cannot tell reversed his car and thereafter, he heard the shouting of one aunty as "Bacha HaiBacha Hai" and thereafter the public persons started gathering and after some moment, he went and saw that the child of the said aunty were being taken to the hospital in the said car by which the said child was hit. He did not see the driver of the said tavera car as it had left the spot before his reaching there. He could not identify the said driver of the Tavera car. He was cross examined by Ld. APP for the State. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
State Vs. Brij Kishore 5/14 FIR no. 293/07
13. PW 8 Sh. Om Prakash Sharma deposed that on 18.4.2007, he had gone to purchase some match box from near his shop which was in Durga Vihar in the gali from a grocery shop and there was darkness all around and by the time he reached the grocery shop, he saw that the son of one Madhubala received injuries who was being taken away from there in a car, the make and registration number of which he could tell and he also could not tell as to who was the driver of the said car. The mother of the injured child namely Madhubala had also accompanied her child to the hospital. He was cross examined by Ld. APP for the State.
14. This is the overall prosecution's evidence in this case. Prosecution evidence stood closed vide order dated 30.9.2013.
15. The statement of the accused under Section 313 of the Criminal Procedure Code, 1973 (for short, `the Code') was recorded wherein incriminating circumstances were put to him. He disavowed all the allegations against him. He further submitted that he is innocent and has been falsely implicated in this case. He did not cause the accident in question. In fact he was behind the vehicle who had hit the child and who fled away from the spot and he was wrongly implicated for the accident of the child. He further chose not to lead defence evidence.
16. I have heard the learned Assistant Public Prosecutor and the learned Advocate for the accused at length and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt. Eye witness has correctly identified the accused to be the driver of the offending vehicle, who drove his vehicle negligently leading to the death of one Suraj.
17. It is canvassed by Ld. Counsel that accused has been falsely implicated which is clear State Vs. Brij Kishore 6/14 FIR no. 293/07 from the cross examination of PW wherein she has conceded that it was a sunset time and there was no sufficient lightening in the lane and in that scenario it was highly unlikely for her to have witnessed the accident. It is also argued that two witnesses Mohit Sharma and Om Prakash have turned hostile and have not supported the case of the prosecution, therefore accused deserves to be acquitted.
18. I have bestowed my thoughtful considerations to the rival submissions made before me. In order to bring accused to justice, prosecution has to prove the necessary ingredients of the offence under sections 279/304 A IPC. Firstly, I would embark upon Section 279 of IPC which reads as under :
"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 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 both".
Section 304 A reads as under :
Causing death by negligence Whoever caused 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.
19. Before I proceed to give my finding on the abovesaid aspects, it is pertinent to note that Ld. Counsel for the accused has not oppugned the factum of accidental death of Suraj on the given date. The same stands also proved by the testimony of PW 2 Sh. Prem Chand who has proved the dead body identification memo as Ex.PW 2/A. Accused has also not disputed the genuineness of the post mortem report as Ex.D1 which indicates death of deceased Suraj due to cranio cerebral injury caused by blunt State Vs. Brij Kishore 7/14 FIR no. 293/07 force which could be possible in a road traffic accident.
20. In order to bring home the guilt of the accused, prosecution has to prove two important aspects, firstly that the accused was driving the offending vehicle on 18.4.2007at 8 pm at the given place. Secondly, that the said vehicle was being driven by the accused in rash or negligent manner which resulted into the accident of one Suraj, who later on succumbed to his injuries.
21. In order to prove the first aspect that the accused was driving the offending vehicle at the given time and place, it is stated that accused in his statement u/s 313 of the Code has not denied that he was driving the offending vehicle at the given time and place. His defence, however, was that he was behind the vehicle who had hit the child and fled away from the spot. PW 1 Madhubala has unequivocally identified the accused in the Court to be the driver of the offending vehicle. It is the statement of PW 1 that after being hit by the offending vehicle, public persons gathered at the spot and caught hold of the accused. Accused was asked by the public persons to take the injured to the hospital and she alongwith her injured son were taken by the accused in his car to the hospital. It is, however, a different matter that after sometime PW 1 asked the accused to stop his car and chose to take her son to the hospital with the help of some public persons. In the later part of her examination in chief, PW 1 has also affirmed the registration number of the offending vehicle as HR 55 ET 1341.
22. In her cross examination, the abovesaid narration has not been challenged by Ld. Counsel for the accused except a general suggestion that accused was not driving the said vehicle or that he did not cause any such accident, which PW 1 denied. It is clear from the testimony of PW 1 that she had ample opportunity and time to have a close look at the driver of the offending vehicle and therefore there is no ground to disbelieve State Vs. Brij Kishore 8/14 FIR no. 293/07 her identification of the accused to be the driver of the offending vehicle before the Court. Therefore, it stands conclusively established that accused was driving the offending vehicle at the relevant time and place.
23. Now I set to give my finding on the second aspect. In order to better appreciate the aforesaid issue, let us first examine as to what amounts to rashness or negligence . In the case titled Ram Avtar v. State of Rajasthan, 6th December, 2005 it was held in para 6 and 8 "6. Thus the essential ingredient for offence under Section 279, IPC is that the vehicle should be driven in "rash and negligent manner". The concept of rashness and negligence is borrowed from the law of tort into the criminal law. But in criminal law for rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. On the other hand, 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, 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 (Ref. To AIR 1944 Lah. 163). Hence, the prosecution has to prove the existence of these two elements to bring home the offence under Section 279, IPC...............".
24. Negligent act means failure to take proper care and precautions jeopardizing the lives of other persons. It means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one, it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to State Vs. Brij Kishore 9/14 FIR no. 293/07 negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing what one ought to do can constitute negligence.
25. In a fairly recent Judgment of Apex court, the concept of driving has been extensively explained. The Judgment is titled as Ravi Kapur v. State of Rajasthan (2012) 9 SCC 284 and para 14 is reproduced as below:
"14. The Court has to adopt another parameter i.e "reasonable care" in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others".
26. It is amply clear from the above that rash and negligent driving has to be examined in the light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result.
27. In so far as the allegations of rashness or negligence on the part of the accused is concerned, prosecution has though cited witnesses PW 1 Madhubala, PW 7 Mohit Sharma, PW 8 Om Prakash as the eye witnesses but witnesses Mohit Sharma and Om Prakash have not completely supported the case of the prosecution. But let us embark upon the testimony of PW 1 Madhubala first before adverting to the testimony State Vs. Brij Kishore 10/14 FIR no. 293/07 of other eye witnesses. The relevant fragment of her testimony reads as under;
"During the month of Chait and the day was Wednesday, about 56 years ago I was sitting on the cot just on the gate of my house/plot and my son Suraj who was aged about 21/23 years old was playing just outside the gate of my house in a narrow gali/street. Some other neighbourers were also present there with me and in the meantime, i.e at about 7 pm, the accused who is present in the Court today came in a Tavera car the number of which I do not remember today in a very fast speed and hit my son and my son sustained severe injuries in the said accident........................''.
28. Although in the aforementioned fragment of testimony of PW 1 she could not recall the exact date of the accident of her son which is not unusual given her testimony was being recorded almost 5 years after the incident but the omission to mention the date loses significance in view of admission of the accused in his statement under section 313 of the Code that he was driving the offending vehicle at the given time and place. It is further manifest from the above testimony that the offending vehicle was being driven in a very fast speed in a narrow gali when it banged into the deceased Suraj. In the cross examination also, PW 1 reiterated that the street was very narrow so that even a single vehicle could not pass from it conveniently. At this juncture, let us have a look at the site plan Ex.PW6/D, prepared by the investigating officer/PW 6 with the assistance of PW 1. The said site plan although does not reveal the exact measurement of the road/lane where the accident had taken place but from the drawing it is clear that the accident took place at point A and the lane appears to be quite narrow, which supports the version of PW 1. As observed hereinabove, it has been the statement of the accused u/s 313 of the Code that he was driving the offending vehicle in the said gali but in the cross examination of PW 1 it has nowhere State Vs. Brij Kishore 11/14 FIR no. 293/07 been suggested that the vehicle was being driven in a slow or moderate speed. It was also his stand that accident was caused by vehicle moving ahead of him but again there is no such suggestion from his side to PW 1. Hence, the deposition of PW 1 to the effect that the vehicle was being driven in a very fast speed has remained unrebutted and unchalleged.
29. It has been the contention of Ld. Counsel that as per the admission of the witness in her cross examination it was a sunset time when the accident took place and there was no street lamp post in the lane thereby making it highly unlikely for PW 1 to have witnessed the accident. I am inclined to dispel this contention of Ld. Counsel for the reason that in her cross examination only witness PW 1 clarified that there was enough source of light from the nearby shops for her to witness the accident. The accident is stated to have occurred at 8 pm so it cannot be said to be chimerical that there could not be any lightning from the nearby shops. There was no counter suggestion to this deposition of factum of lightning from the nearby shops. Moreover, the site plan Ex.PW6/D also demonstrates that there was a grossary shop in front of the point where the accident took place. Therefore, this deposition of PW 1 cannot be said to be incredulous.
30. It has also been the contention of Ld. Counsel that two prosecution's witnesses have turned hostile and only PW 1 has deposed against the accused but she being the interested witness, her testimony does not hold much significance. To address this issue, I hold and observe that it has been reiterated in number of cases by Apex Court that that if the sole testimony of injured/complainant is found to be reliable and trustworthy, then the same is sufficient to record the finding against the accused even if no other public/independent person is examined.
State Vs. Brij Kishore 12/14 FIR no. 293/07
31. In a recent case titled as Kalu @ Amit Vs. State of Haryana 2301 (I) AD SC 641, it has been stated by the Apex Court in para 9 of its judgment that conviction can be based on the evidence of the sole eye witness if his evidence inspires confidence.
32. In so far as the testimony of hostile witness is concerned, in para 4 of judgment tiltled as Ramesh Kumar and ors Vs. State 2013 VIII AD (Delhi) 617 CRL.A it has been held that;
4. ".....................It is settled legal proposition that statement of hostile witnesses cannot be rejected in toto. The evidence of such witnesses cannot be treated as effaced or washed of the record altogether. It can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof. Statement of PW 9 (Neer Singh) can be taken into consideration to the extent it is in consonance with the testimony of PW 6 (Jagjit Singh).
33. After carefully analysing the testimony of PW 1 before the Court as well as her initial complaint, I do not find any reason to not to believe and take her testimony into consideration. She has corroborated her initial complaint to the police on material aspects when she came to depose before the Court on 25.10.2012 i.e almost five years after she gave the complaint. Furthermore, PW 7 Sh. Mohit Sharma has although not completely supported the case of the prosecution but he testified that he was present near a grossary shop and witnessed that around 8 pm one Tavera car reversed his car and he heard the screams of one lady as "Bachha HaiBachha Hai"
and thereafter public persons gathered at the spot. He also witnessed the child and the said lady being removed in the said car. Accused has not refuted the make of his car as Tavera and the other facts deposed by this witness, therefore his testimony can be taken into consideration as the same is lending credence to the testimony of PW 1 State Vs. Brij Kishore 13/14 FIR no. 293/07 to some extent.
34. As noted hereinabove, it has not been disavowed by the accused that he was driving the offending vehicle at the relevant time and place. The lane was narrow enough for a vehicle to slow down its speed, therefore it was incumbent upon the accused to have not driven his vehicle in a high speed. When he entered his vehicle in a narrow gali which was surrounded by houses, it should have been in his contemplation not to drive his vehicle in a fast speed so as to safeguard against hitting any body in the lane. Since he has failed in performing of this duty, therefore he can be said to be driving negligently at that point of time.
35. Investigating Officer HC Billu Singh has also corroborated the statement of PW 1 on material aspects. Prosecution has been successful in assembling the case of rash and negligent driving against the accused and causing the death of child Suraj. Resultantly accused stands convicted for offence u/s 279/304 A IPC. Let he be heard on the point of sentence.
Announced in the open court (Navjeet Budhiraja)
on 13.01.2014 Metropolitan Magistrate04,
South, New Delhi
State Vs. Brij Kishore 14/14 FIR no. 293/07