Delhi District Court
Sh. Harish Kumar S/O. Sh. Jog Ram vs State on 23 May, 2013
IN THE COURT OF SHRI SANJAY GARG : ADDITIONAL SESSIONS JUDGE -
01 (EAST) :KARKARDOOMA COURTS : DELHI
Crl. Appeal No. 33/13
Sh. Harish Kumar S/o. Sh. Jog Ram
R/o. Gaon Natela, Post Office Haldwani,
PS Ranikhet, District Almorha,
Uttranchal. ..... Appellant
Versus
State ..... Respondent
ORDER :
1. Vide this appeal, the impugned order vide which appellant/accused was convicted for the offences u/s. 279/304A IPC is under challenge. Under section 279 IPC he was sentenced to RI for one month and fine of Rs.500/ and in default SI for 15 days and u/s. 304A IPC he was sentenced to RI for six months and fine of Rs.1500/ and in default SI for two months.
2. The case of the prosecution is that on 8.2.2003 at about 9.25 p.m at Noida Road near Chilla Bridge accused was found driving truck No. DL1GB0963 in a rash and negligent manner and hit against motorcycle No. HR26H2023 causing fatal injuries to its rider namely Suresh. Chargesheet u/s. 279/304A IPC was filed by the police against the appellant.
3. After giving notice u/s. 251 CrPC to the appellant u/s. 279/304 A IPC, prosecution led evidence and examined 11 witnesses. PW1 Anil Kumar is the owner of the truck with whom accused was employed as driver. PW2 Ram Preet and PW3 Ram Chet identified dead body of Suresh at LBS Hospital. PW4 Ct. Chhotey Lal is an eye witness to the incident and it was on his complaint that FIR was lodged. PW5 Ct. Vinod Kumar had taken dead body to LBS Hospital and got it postmortemed. PW6 Ct. Sunil Kumar is a formal witness who had reached at the spot. PW7 Dr. Crl. Appeal No. 33/13 page 1 of page 6 Vinay Kumar Singh, Junior Specialist, Forensic Medicine, LBS Hospital conducted postmortem and opined cause of death as shock due to crush injuries. PW8 Retired SI Kedar Nath conducted mechanical inspection of the offending vehicle i.e. truck and the motorcycle of the deceased. PW9 Ct. Satya Prakash is the photographer and he took photographs of the accident site.
4. PW10 SI Nahar Singh is the IO, he reached at the spot after the accident. He has recorded statement of PW4 Ct. Chhotey Lal, prepared rukka and got the FIR registered. He has seized the offending vehicle and motorcycle of the deceased. He handed over the dead body after postmortem to the relatives of the deceased. He has given notice u/s. 133 of M.V. Act to PW1 Anil Kumar, the owner of the truck, who produced the accused being the driver of the truck on the day of incident. PW11 HC Ishwar Singh was duty officer, on the basis of rukka sent by IO he recorded FIR in this case.
5. On the basis of the incriminating evidence against the accused, his statement was recorded u/s. 313 CrPC, wherein he denied involvement of his truck in this accident. He took the defence that he is innocent and was falsely implicated as the accident had already taken place before he had reached at the spot. He did not lead any evidence in defence.
6. Heard arguments of Sh. P.N. Sharma, Ld. Counsel for the appellant and Sh. Abdul Aleem, Ld. APP for State. Perused the Trial Court record and the grounds of appeal raised by this petition.
7. Sh. P.N. Sharma, Ld. Counsel for appellant relied upon following judgments to support his contentions :
1. Sumair Khan Vs. State Crl. Rev. Petition 580/08 of Delhi High Court, date of decision 20.4.11.
2. Vinod Kumar Vs. State Crl. Rev. Petition No. 131/10 of Delhi High Court, date of decision 13.10.11.
3. Jagdish Prasad Vs. State (Govt. of NCT of Delhi) Crl. Petition No. Crl. Appeal No. 33/13 page 2 of page 6 112/05 of Delhi High Court, date of decision 8.9.11.
4. Dr. G.S. Chandraker Vs. State & Anr. of Delhi High Court, date of decision 30.7.2007
5. Abdul Subhan Vs. State (NCT of Delhi) 2007 Crl. LJ 1089, 133 (2006) DLT 562.
8. One of the main contention raised on behalf of the appellant is that the Ld. Trial Court has failed to appreciate that deceased was run over by the left rear wheel of the ruck and truck was going ahead of the motorcycle and this shows that the said accident occurred due to negligent driving of the deceased himself. It is stated that photographs lying on record clearly establish that deceased lost control of his motorcycle and accident took place due to his own rash and negligent driving. On the other hand Ld. APP submitted that statement of PW4 and other witnesses which has come on record establish beyond doubt that accident took place due to rash and negligent driving of accused.
9. PW4 Ct. Chhotey Lal is the sole eye witness examined by the prosecution. As per him on 8.2.03 at about 9.25 p.m he was present near Chilla Bridge, Noida Road, on VIP Security. He saw truck No. DL1GB0963 being driving at a very fast speed in a rash and negligent manner by the accused and it hit against motorcycle No. HR26H2023. The motorcycle came under the left rear wheel of the truck. The motorcycle fell down on one side and motorcyclist was dragged for sufficient distance. The motorcyclist died at the spot. The truck driver managed to flee from the spot. IO SI Nahar Singh reached at the spot and recorded his statement. IO seized the truck and motorcycle and got the spot photographed. Next day accused was arrested in this case. IO seized the driving license of the accused. During his crossexamination PW4 stated that officials from PS have been sent near the spot after briefing by the SHO for VIP security duty as distinguished guest had to pass through the spot. He had seen the occurrence from a very little distance of about 10 meters as he was standing near the bridge. As he was Crl. Appeal No. 33/13 page 3 of page 6 on security duty, he was looking towards the road and had seen the offending truck from the distance of about 25/30 meters. The motorcycle of the deceased was going ahead of the truck. The motorcycle was hit from the left side and motorcyclist was dragged. He had seen the occurrence when truck hit the motorcycle. Accused stopped his vehicle and managed to run away. There was road light on the spot. He had not made any effort to catch hold the accused as he was paying attention towards the deceased. Ex.PW8/A and PW8/B are the mechanical inspection reports of the offending vehicle and motorcycle of the deceased. Ex.PX1 to Ex.PX5 are the photographs of the spot showing the dead body lying beneath the offending vehicle near the left rear wheels. This proves that the offending vehicle was involved in this accident. PW4 has specifically stated that accused was driving the offending vehicle at a very fast speed and in a rash and negligent manner and hit against the motorcycle driven by deceased. PW4 was cross examined at length by accused but nothing has come on record to discredit his testimony or to establish the defence taken by accused that the accident took place due to negligence of the deceased and at the time of accident offending vehicle was going ahead of the motorcycle driven by deceased.
10. Ld. Counsel for the appellant has urged that even if the vehicle is being driven at a fast speed it cannot be held to be being driven in a rash and negligent manner which are the essential requirements of section 279/304A IPC. To support his submissions Ld. Counsel has relied upon various judgments. In Sumair Khan (Supra), the Court observed that the statement of the eye witness that the truck was being driven at a fast speed does not establish that the offending vehicle was driven in a rash and negligent manner. In Vinod Kumar (Supra), the Court acquitted the accused observing that the witness has made a bald statement that the driver of bus was driving the bus in a rash and negligent manner and the same does not prove the guilt of the accused. In Dr. G.S. Chandraker (Supra), the Court observed that negligence which is neither gross nor of a higher degree may Crl. Appeal No. 33/13 page 4 of page 6 provide a ground for action in civil law but cannot form the basis for criminal prosecution. In Abdul Subhan (Supra), the Court observed that merely because the truck was being driven at the high speed does not bespeak of either "negligence" or "rashness" by itself and "high speed" is a relative term. It was for the prosecution to bring on record material to establish as to what is meant by "high speed" in the facts and circumstances of the case.
11. The facts of the instant case are distinguishable from the facts of various judgments discussed above and relied upon by Ld. Counsel for the appellant. As per the facts of this case, as deposed by PW4 after the impact of the accident motorcycle fell down on one side and motorcyclist was dragged for sufficient distance. The very fact, which is established on record that deceased got crushed under the rear wheel of the truck, shows that the offending vehicle was being driven in a negligent manner and was at such a speed which was beyond the control of the accused, as a result of which, after hitting the motorcycle going in front of the offending vehicle, the accused failed to stop his vehicle and kept on dragging the deceased as a result of which he got crushed under the rear wheel of the truck. While appreciating the facts of this case it has to be kept in mind that the spot is not a highway or main road and while driving commercial vehicle on such roads the accused was required to be extra vigilant and careful. Had the speed of the truck would have been slow and accused careful the loss of life could have been avoided.
12. Another contention raised by Ld. Counsel for the appellant is that no public witness was examined by the prosecution despite the fact that spot is a very busy road. The law is settled that examination of a public witness is not a sinequanon for holding every conviction. There is no rule of law which makes it mandatory for examination of a public witness in every criminal prosecution. As already discussed, statement of PW4 though the police official, is consistent, credible and trustworthy and I find no Crl. Appeal No. 33/13 page 5 of page 6 reason to disbelieve it.
13. The other contention raised by Ld. Counsel for the appellant is that the Ld. Trial Court has not taken into consideration the report of the mechanical inspection which is in favour of the appellant. The Ld. Counsel has not elaborated that in what way the mechanical inspection report is favouring him. The mechanical inspection report of motorcycle reveals damage on it. The truck having huge chasis and weight, the proportionate damage as on the motorcycle is not expected on it. However, as per Ex.PW8/A scratches were found on the left side rear tyres. I thereby do not agree with this contention raised by Ld. Counsel for the appellant.
14. In view of the aforesaid reasons, I find no substance in the various grounds of appeal raised by appellant. Appeal is accordingly dismissed and the order of the Trial Court is upheld.
15. The Ld. Counsel for the appellant has further urged that appellant is a HIV positive patient and is unable to even walk properly. It is requested that leniency be shown towards the appellant while awarding sentence. No documentary proof has been filed by appellant to support his ailment. The maximum sentence u/s. 304A IPC is 2 years, already Trial Court taking lenient view has awarded RI for six months. In view of these reasons no interference is required in the order on sentence. The appellant has to undergo the same sentence as awarded by the Ld. Trial Court vide impugned order.
16. Appellant is directed to surrender before the Ld. Trial Court on 28.5.13.
17. Trial Court Record be sent back alongwith the copy of this order. Another copy of this order be given to appellant for compliance.
Appeal file be consigned to record room.
ANNOUNCED IN OPEN COURT (SANJAY GARG)
ON 23.05.2013 ADDL. SESSIONS JUDGE(EAST) 01
KARKARDOOMA COURTS : DELHI
Crl. Appeal No. 33/13 page 6 of page 6