Delhi District Court
State vs Praveen Kumar on 13 September, 2012
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s Praveen Kumar
FIR No. 353/99
PS: Saraswati Vihar
JUDGMENT
A) The date of commission : 21/05/1999
of offence.
B) Name of the complainant : Aziz
S/o Liyaqat Ali
C) Name of the accused : Parveen Kumar
S/o. Sh. Sohan Lal
D) Offence complained of : U/s. 279/338/304-A IPC & 3/181 M.V. Act
E) The plea of accused : Pleaded not guilty.
F) Final order : Convicted U/s. 279/338/304 A IPC
G) The date of such order : 13.09.2012
Date of Institution : 17/12/1999
Judgment reserved on : Not reserved
Judgment announced on : 13/09/2012
State V/s Praveen Kumar FIR No. 353/99 PS: Saraswati Vihar Page No. 1/11
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief, the case of the prosecution is that on 21/05/1999 at around 08:10 pm at H-Block Jhugi in front of road side, J.J. Colony Shakurpur, Delhi, within the jurisdiction of Police Station Saraswati Vihar, accused was found driving a bus bearing registration No. DL 1P- 5614 in a rash and negligent manner so as to endanger human life and safety of others & while so driving caused death of Guddiya.
2. After completion of investigation challan was filed by the police U/s 279/338/304-A IPC & 3/181 M.V. Act of which cognizance was taken by the Ld. Predecessor of this court.
3. Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused.
4. Vide order dated 13/02/2001 notice U/s. 251 Cr.P.C was served upon the accused for trial of offences U/s 279/304 A IPC by the Ld. Predecessor to which accused pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence.
State V/s Praveen Kumar FIR No. 353/99 PS: Saraswati Vihar Page No. 2/115. So far prosecution has examined 8 witnesses to prove the allegations against accused.
A brief scrutiny of examined PWs is as under.
PW-1 HC Savitri proved the FIR as EX. PW-1/A. PW-2 Shahin deposed that on the fateful day while she was sitting on the cot in front of her house and was feeding her child, one bus came from the side of K block at a very high speed and struck into the cot. She further deposed that as a result she sustained injuries and her child scummbed to the injuries at the spot only and she got unconscious. She was not cross examined by accused despite opportunity given.
PW-3 SI Umed Singh proved mechanical inspection report of offending bus bearing registration No. DL 1P 5614 as Ex. PW-3/A. PW-4 is Yatender, driver of the offending bus who deposed that he used to park the said bus by the road side of H block after duty hours. He further deposed that the accused was helper in the said bus and on 21.05.1999 he i.e. the accused was driving the said bus. He further deposed that after accident the accused whom he correctly identified in the court, came to his house and informed him about the said accident at H block. He also deposed that the accused knew how to drive the bus. He was not cross examined by accused despite opportunity given.
PW-5 Dr. Rajesh Gupta proved the P.M. report of deceased Gudia as Ex. PW-5/A. State V/s Praveen Kumar FIR No. 353/99 PS: Saraswati Vihar Page No. 3/11 PW-6 is Ashwani Sharma, registered owner of offender vehicle. He deposed that on 21.05.1999 the bus was driven by accused Praveen Kumar who was helper of the said bus. He proved his reply to notice under Section 133 M.V. Act given to him by the police as Ex. PW-6/A. PW-7 IO SI Vinod Kumar has deposed about the steps taken by him during the course of investigation. He proved the statement of the complainant Aziz as Ex. PW-7/A, site plan as Ex. PW-7/B, photographs collectively as mark A, seizure memo of the bus and folding cot as Ex. PW-7/C & Ex. PW-7/D, arrest memo of the accused as Ex. PW-7/E. He was cross examined by Ld. Defence Counsel.
PW-8 is HC Yashpal who proved the photographs mark A as Ex. P-1 to P-5.
6. P.E. was closed on 15.09.2011 and thereafter statement of accused was recorded under section 281/313 Cr.P.C, to which he claimed innocence but preferred not to lead D.E. Thereafter the matter was fixed for final arguments.
7. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused and have gone through the evidence and the material available on record.
8. The following facts needed to be proved by the prosecution to bring State V/s Praveen Kumar FIR No. 353/99 PS: Saraswati Vihar Page No. 4/11 home the guilt of the accused:-
a) That the alleged vehicle bearing registration No. DL 1P- 5614 was being driven by the accused at the time of alleged accident.
b) That the alleged accident happened due to the said vehicle being driven by the accused in rash and / or negligent manner.
c) That due to the alleged accident, the death of deceased Guddiya occurred and injured Shahin @ Gudi received grievous injuries.
9. Ld. Defence Counsel has argued that DD No. 4 B which was received at the PS was regarding a lady and a child falling from the bus and not that the bus struck them while they were sitting on the cot. He has further argued that PW-2 has not disclosed the name of the driver or the registration no. of the offending bus. He has further argued that PW-4 in his testimony has named Ashwani Kumar as the helped and not accused Praveen Kumar. Lastly that the bus as per the mechanical inspection report was fit for road test.
10. Per contra Ld. APP for the State has submitted that the prosecution has been able to prove its case against the accused beyond reasonable doubt and he should be convicted.
11. From the rival arguments and material on record I am of the opinion that the prosecution has been able to prove their case beyond shadows of reasonable doubt.
State V/s Praveen Kumar FIR No. 353/99 PS: Saraswati Vihar Page No. 5/1112. Identity of the accused and the offending vehicle There is not an iota of doubt regarding the identity of the accused as the man behind the wheels of the offending vehicle on the fateful day, at the relevant time.
Even though no witness has deposed seeing the accused operating the offending vehicle at the time of incident, however, there is enough circumstantial evidence on record to show that on the fateful day at the relevant time he was the man behind the wheels. In his unrebutted testimony PW-4 Yatender has deposed that the accused was the helper in the said bus which he used to park by the side of road at H block. He also deposed that after the accident the accused whom he identified in the court came to his house and informed him about the said accident. The conduct of the accused just after the incident is relevant under Section 8 of Indian Evidence Act.
The superdar Ashwani Sharma who was examined as PW-6 also deposed that the bus was being driven by the accused on the fateful day. Most importantly in his statement under Section 313 Cr.P.C the accused admitted that at the time of the incident he was on the bus and while cleaning the bus started suddenly and he became hope less and could not stop the bus.
In view of the above discussions, no doubt remains as to the identity of the accused person as the driver of the offending vehicle.
State V/s Praveen Kumar FIR No. 353/99 PS: Saraswati Vihar Page No. 6/1113. Rash and Negligent Act What is rash/negligence varies from case to case and there cannot be any fixed parameters for judging rashness/negligence. At the same time, there cannot be any assumption/presumption of the same. 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 or proper case and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. ( Niranjan Singh v . State (Delhi Administration), (Delhi) 1996(1) R.C.R.(Criminal) 320 .
Meaning of expression negligent act and rashness came up for discussion in the case titled as Prabhakaran v. State of Kerala, (SC) 2007(3) R.C.R. (Criminal) 605 and the Hon'ble Apex Court Held :-
(1) A negligent act is an act done without doing something which are a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it - A rash act is a negligent act done precipitately.
(2) 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.State V/s Praveen Kumar FIR No. 353/99 PS: Saraswati Vihar Page No. 7/11
(3) 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.
It was held in Ishwar Singh V. State of Haryana 2000 (2) R.C.R. (Criminal) 571 That the driver cannot be presumed or assumed to be rash. Such accident are now innumerable with the tremendous increase in traffic but still the negligence or rashness of an accused must be exhibited, explained and proved on record as to what was omitted by the driver of the offending vehicle which he should have take care of & as to what act was committed by him which led to the accident.
The accused not being the driver of the bus and being engaged in the capacity of cleaner was not authorized to drive the same. Still he operated the bus and due to his inexperience the bus got out of control and struck the cot. He was not in possession of any valid driving license and out of his misadventure hit the injured and the deceased. His contention that the bus started on its own while cleaning cannot be taken as truth since the bus cannot be operated without use of ignition keys. Starting the bus using the keys by the accused being fully aware that he is not authorized to operate the said vehicle itself amounts to gross negligence on his part.
In view of the above discussions and judgments relied upon it can be deduced safely that the accused acted rashly and negligently while driving the offending vehicle.
State V/s Praveen Kumar FIR No. 353/99 PS: Saraswati Vihar Page No. 8/1114. Cause of death of deceased Guddiya & injuries to injured Gudi @ Shahin due to the accident The next requirement to prove the case against the accused is whether the deceased died due to the rash and negligent act of the accused. Having proved the identity of the accused and the accident taking place due to his rash or negligent driving the prosecution was required to prove that the act of the accused was Causa Causan and not the Sine Qua Non. To hold the accused guilty it must be proved on the record that the act of the accused must be the proximate cause of the death of the deceased and not the remote cause. The cause of the death of deceased Guddiya has been proved by the prosecution by examining PW-5 Dr. Rajesh Gupta who proved postmortem report as Ex PW-5/A. He opined the injuries to be ante mortem caused by blunt force impact due to vehicular accident. Death was due to shock and hemorrhage as a consequent to multiple injuries. This witness has not been cross examined by the accused at all.
M.L.C of injured Shahin @ Gudi w/o. Ajit was admitted by the accused under Section 294 Cr.P.C as reflected in order sheet dated 15.09.2012 and has been exhibited as Ex. X 1. Same reflects the nature of injuries to the injured as grievous.
Therefore, in view of above discussions and cited case laws the prosecution has sufficiently proved on the record that the proximate cause of the death of deceased and injuries sustained by injured Shahin @ Gudi was the accident caused by the accused by his rash and negligent driving.
State V/s Praveen Kumar FIR No. 353/99 PS: Saraswati Vihar Page No. 9/1115. The contentions of the the Ld. Defence counsel that no public person as stated by the complainant who were on the spot at the time of alleged incident were made witnesses by the IO at the spot which casts serious doubts upon the prosecution story does not hold water in my opinion. There was no requirement of the same and absence of any public person(apart from 'interested' witnesses examined) has not affected the prosecution story in any manner. The Indian Evidence Act does not specify any particular number of witnesses required to prove a fact and a fact can be proved even by one witness whether he is official or independent public witness depending upon the facts and circumstances of the case. Law requires that evidence has to be weighed and not counted (Ambika Prasad and Ano. Vs State 2002 (2) FIR No. 130/99 16/22 CRIMES 63 (SC) . The Evidence Act does not lay down about any number of witnesses needed for proving a particular fact.
16. The contention of Ld. Defence Counsel that PW-2 did not depose about the registration No. of the offending bus or the identity of the accused person without any merits. The statement of PW-2 is trustworthy and reliable keeping in view her social status. She is a victim in the present case and had no occasion to note down number of the bus or to see the driver as he was not arrested from the spot. It is natural that the injured in particular when her child also sustained fatal injuries would look after herself and her child and not note down registration number of the offending vehicle or run after the accused. Her testimony has to be read along with other circumstantial evidence. The accident is said to have taken place near H block and the address of the injured/PW-2 is also that of H block. PW-4 has also deposed about parking of the offending vehicle on the side road of the H block and no other accident of State V/s Praveen Kumar FIR No. 353/99 PS: Saraswati Vihar Page No. 10/11 this sort is reported to have taken place on that day. Therefore, in opinion of this court, this argument of Ld. Defence Counsel is not tenable.
17. Lastly, the contention of Ld. Defence Counsel that PW-4 deposed Ashwani Kumar being the helper and not the accused Praveen Kumar as is reflected from his testimony goes, the same can be attributed to either mistyping or due to inadvertance, since Ashwani Kumar is the superdar/registered owner as has been proved on record.
Thus, in view of the above discussion, the corroborative testimonies of the prosecution witnesses examined and the documents on record, the prosecution has been able to prove the guilt against the accused beyond any shadow of doubt. Accordingly the accused is held guilty for offences u/s 279/338/304 A I.P.C and convicted accordingly.
A copy of this judgment be supplied to the accused free of cost and the matter be now listed for arguments on the point of sentence.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on September 13th, 2012.
It is certified that this judgment contains 11 pages and each page is signed by me.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Date: 13/09/2012 State V/s Praveen Kumar FIR No. 353/99 PS: Saraswati Vihar Page No. 11/11