Delhi District Court
State vs . Som Raj on 12 September, 2014
IN THE COURT OF SHRI SUNIL GUPTA , M.M (NE)
KARKARDOOMA COURTS, DELHI
FIR No. : 378/01.
U/s : 279/304A IPC
P.S : Seelampur
State Vs. Som Raj
Unique Case ID No. 02402R0044882001
JUDGEMENT
1. Sl. No. of the case : 978/12 (RBT) 2. Date of institution of the case : 24.12.2001 3. Name of complainant : State 4. Date of commission of offence : 18.10.2001
5. Name of accused, parentage & address : Som Raj s/o Sh. Ram Phal r/o Village Hirnapur, District Katwa, Jammu & Kashmir.
: Also at DelhiJalandhar Transport Carrier, Sahara, U.P Border.
6. Offence complained of or proved : 279,304A IPC & 3/181 M.V. Act
7. Plea of accused : Accused pleaded not guilty
8. Final order : Convicted
9. Date of which order was reserved : 12.09.2014
10.Date of pronouncement : 12.09.2014 BRIEF REASONS FOR THE DECISION OF THE CASE
1. The facts of the case are that on 18.10.2001 at about 11.15 pm at Dharampura Red Light, Seelampur, Delhi, accused Som Raj was FIR No. 378/2001 1 Of 18 allegedly found driving a truck bearing registration no. HR38F 5600 in a rash and negligent manner which endangered human life and personal safety of others. While driving the aforesaid vehicle, accused Som Raj allegedly hit one motorcycle bearing registration no. DL5SP2717 as a result of which pillion rider namely Smt. Saroj fell on the road and was crushed by the aforementioned truck. She died on the spot. On the statement of the complainant Mr. Vikas Sharma, a case FIR No. 378/01, P.S. Seelampur for the offences under Section 279/304A IPC was lodged against the accused. On completion of other formalities, present challan was filed in the court by the IO.
2. After supplying of the documents to the accused, Ld. Predecessor vide order dated 21.09.2002 was pleased to serve a notice for the offences under Section 279/304A IPC read with 3/181 Motor Vehicles Act against accused Som Raj to which he pleaded not guilty and claimed trial.
3. Prosecution has examined as many as eight witnesses in order to substantiate its case.
PW 1 is Sh. Vikas Sharma. He is the victim in this case. He has deposed as under : "On 18.10.2001, I was returning after attending the function and it FIR No. 378/2001 2 Of 18 was about 11 pm/11.15 pm. When I alongwith my mother Smt. Saroj on motorcycle no. DL5SP2717, and reached near the Dharampura red light, one truck no. HR38F5066, came from the side of Seelampur, and going towards the side of ISBT on a very high speed without blowing horn and without caring red light and struck against my motorcycle, my mother was crushed by the above no. truck while I fell some distance, but visible injury I sustained. I got stopped the truck, I got down the driver of the truck from the truck, who told his name Somraj, who is present in the court is correctly identified, and thereafter some public persons also gathered there and gave beating to the accused. Meanwhile, some informed the police, and I handed over the accused to the police. My mother died on the spot itself. My statement was recorded which Ex. PW 1/A bears my signatures at point A. My motorcycle was seized by the police vide memo Ex. PW 1/B bears my signatures at point A and truck was also taken into the police possession. I pointed out the spot to the police, and said site plan was prepared, the seizure memo truck is Ex. PW 1/C which bears my signatures at point A. Photographs were also taken at the spot. 08 photographs of seen of crime shown to the witness which has been correctly identified and the same are collectively Ex. PW 1/D. Accused was arrested, and his personal search was conducted vide memo Ex. PW 1/E and Ex. P 1/F and bears my signatures at point A. After the post morterm dead body was received vide memo PW 1/G bears my signatures at point A. My statement was recorded regarding the identification of my mother's dead body Smt. Saroj. The above motorcycle was obtained superdari by my father. Accused present in the court correctly identified by the witness." Ld. Defence Counsel has crossexamined this at length. PW2 is Rakesh Sharma. He has deposed as under : FIR No. 378/2001 3 Of 18 "On the intervening night of the 1819 October 2001, when my son Vikas was returning along with his mother after attending the function on motorcycle no. DL5SP2717 he met with an accident and my wife died on the spot. I was informed and I reached at the spot, and thereafter my wide was shifted to hospital for post morterm and dead body was received and thereafter, mechanical inspection. I obtained my motorcycle on superdari vide superdarinama vide Ex. PW1/A which bears my signatures at point A. I have not brought the motorcycle today and the same is not disputed by the Ld. Defence Counsel."
He has been crossexamined by Ld. Defence Counsel. PW3 is Ashok Kumar. He has deposed that on 19.10.2001, he identified the dead body of his Bhabhi Saroj at the Mortuary at GTB hospital. He also deposed that his statement in this regard was recorded Ex. PW3/A. He has proved the handing over memo of the deceased Ex. PW1/G. PW4 is Harish Chander Pandey, Lab Assistant Department of Forensic Medicine U.C.M.S & GTB hospital. He has deposed as under : "I am working as Lab Assistant in Department of Furensic Medicine from 1991. I works with Dr. Virender Kumar who left the hospital but now the whereabout of Dr. Virender is not known. I saw Dr. Virender Kuamr writing & signing. Dr. Virender Kumar FIR No. 378/2001 4 Of 18 conducted the post morterm of deceased Saroj W/o Rakesh on 19.10.2001. The P.M report is Ex. PW 4/A which bears Dr. Virender Kumar signature at point A Ex. PW4/A also in the handwriting of Dr. Virender Kumar." Accused has crossexamined this witness. PW 5 is HC Ram Niwas. He has has joined the investigation with the IO. He has deposed as under : " On 19.10.2001, I was posted at PS Seelampur as Constable. On aforesaid date SI Satyapal Singh received call regarding accident and he took me alongwith him to the spot i.e Y point Dharampura red light. When we reached at the spot we found that one crushed body of lady at the spot whose name we came to known as Saroj and one motorcycle no. DL5SP 2717 and one truck no. HR38F5600 there and Complainant Vikas also met there. SI Stayapal recorded the statement of Complainant Vikas and prepared Rukka and handed over to me for registration of the FIR. I went to PS and got registered th case and came back at the spot and handed over the copy of FIR and original Rukka to SI Satyapal Singh. SI Satyapal Singh took into possession the aforesaid motorcycle and truck vide memo Ex. PW1/B and Ex. PW1/C both bear my signature at point B. SI Satyapal Singh prepared documents in respect of the deceased and handed over the FIR No. 378/2001 5 Of 18 body to me to be taken to mortuary of GTB hospital. I took the dead body of deceased to mortuary of GTB hospital and after identification of body and post morterm, dead body was handed over to relatives of the deceased. Accused is present today in the court was also admitted in the GTB hospital as he was beaten by public persons. I was present with him and he was arrested by SI Satyapal Singh vide arrest memo Ex. PW1/E and personal search vide memo Ex. PW1/F which bears my signature at point B. I can identify the aforesaid motorcycle and aforesaid truck if shown to me. Photographs of the deceased, motorcycle and aforesaid truck were shown o the witness. Witness correctly identified them which are marked Y7 to Y7 and one photograph is already Ex. PW 1/D. Today, superdar did not produce the motorcycle and truck." Ld. Defence Counsel has crossexamined this witness at length. PW6 is SI Satyapal Singh ( Retired), the IO of the case. He has supported the prosecution case and deposed more or less on the similar lines of PW5. He has detailed about the steps taken by him during the course of investigation. He has proved rukka Ex. PW 6/A, site plan of the spot Ex. PW6/B. He prepared the inquest papers regarding the dead body Ex. PW 6/C and got conducted the FIR No. 378/2001 6 Of 18 postmorterm vide request Ex.PW6/D. Thereafter, he recorded the statement of witnesses and filed the challan against the accused. Ld. Defence Counsel has crossexamined this witness at length. PW 7 is SI Swaroop Singh. He has deposed that on 19.10.2001, he was posted at DCP North East Office as photographer. On that day IO/SI Satyapal Sing called him at spot i.e. Dharampura Red Light. He had taken eight photographs of the spot upon the asking of IO. He had given eight photograph to the IO. He placed the eight negatives of aforementioned photographs on record. He has correctly identify the eight photographs which were clicked by him on the day of incident. He has proved the same Ex. PW7/A to Ex. PW 7/H, and its negatives Ex. PW 7/I( collectively).
PW8 is ASI Madan Pal, the Duty Officer. He has deposed that on on 18/19.10.2001, at about 12:45 AM Ct. Ram Niwas brought a Rukka sent by SI Satpal. On the basis of Rukka, he registered the present FIR. He has proved the carbon copy of the same Ex. PW 7/A, and his endorsement on the rukka as Ex. PW 7/B. After registration of FIR the copy of FIR and original Rukka was handed over to Ct. Ram Niwas for handing over the same to SI Satpal Singh.
4. After conclusion of prosecution evidence, statement of accused FIR No. 378/2001 7 Of 18 under Section 313 Cr.P.C has been recorded wherein he pleaded his innocence. He has stated that he does not know (as to why the witnesses has deposed against him ). he has further stated that the complainant was triple riding his bike when he was attempting to cross the road. He also stated that he does not know how the deceased was hit. He has examined himself in his defence and has deposed as under : "I was having a driving license at the time of alleged accident which was valid from 14.12.1999 to 13.12.2002. But on 17.10.2001, I was challaned by the Challaning Officer due to which my original driving license was impounded by the concerned authorities. The date of disposal of said challan was 19.10.2001 but I could not release the same as I was falsely arrested in the present case, so I could not produce my driving license to the concerned IO of the present case. Today, I have brought the certified copy of challan chit and the certified copy of driving license and same are Ex. DW 1/A & DW 1/B respectively."
5. I have heard the arguments from both the sides and have perused the case file carefully.
Ld. APP for the State has submitted that the prosecution has proved its case beyond reasonable doubt as the eyewitness i.e PW1 Mr. Vikas Sharma has wholly supported the prosecution case. Ld. Defence Counsel, on the other hand, has stated that nothing FIR No. 378/2001 8 Of 18 conclusive regarding the involvement of the vehicle i.e truck bearing no. HR38F5600 in the alleged incident has come on record, so he has prayed for acquittal of the accused.
6. In this case, the accused is charged with for the offences under Section 279 & 304 A IPC along with for the offence under Section 3/181 Motor Vehicles Act. Section 279 & 304A IPC provide as under
: Section 279: Rash driving or riding on a public way:
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 of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Section 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 wither description for a term which may extend to two years or with fine, or with both.
7. It has been argued by Ld. Defence counsel that before going into the question of rashness or negligence on the part of the accused herein, it is to be seen that the prosecution has failed to prove the FIR No. 378/2001 9 Of 18 involvement of the alleged offending vehicle bearing no. HR38F 5600 in the incident in question. It has been argued that as per PW1, the number of the offending vehicle was HR38F5066. He has also argued that as per DD No. 35A dated 18.10.01, P.S Seelampur, which is on record and on which the proceedings herein were initiated by the police officials, a man was informed as lying dead at Dharampura redlight whereas as per the prosecution one lady Smt. Saroj expired in the incident in question. So, the DD No. 35A as aforementioned is contradictory to the case of the prosecution. It has also been argued that as per PW1 Mr. Vikas Sharma, PW6 IO/Retired SI Satya Pal Singh and PW7 SI Swaroop Singh, the photographs of the offending vehicle were taken on the spot but the photographs of the offending vehicle on record appears as having been clicked in broad day light which raises a doubt on the case of the prosecution.
It is true that the registration number of the offending vehicle has been mentioned wrongly by the PW1 Vikas Sharma in his testimony but it is to be seen that he has also deposed that the truck in question was seized before him vide seizure memo Ex.PW1/C. The seizure FIR No. 378/2001 10 Of 18 memo is bearing his signatures at point A. So, merely because the witness stated the vehicle number wrongly after four years of the incident in question is of not much consequence. As far as the submissions of Ld. Counsel regarding the DD No. 35A dated 18.10.2001, P.S Seelampur are concerned, it is to be seen that as per PW1 Mr. Vikas Sharma, someone informed the police. Meaning thereby, the call was not made by Mr. Vikas Sharma himself. It is also not clear as to who made the call. It is possible that some passersby gave the information to the police and he might not be aware as to whether the dead body was of a lady or a man. The death of Smt. Saroj in the alleged accident has been proved by PW1 , PW2, PW3 & PW4. Merely because, some unknown person gave wrong information to the police about the gender of the deceased, it cannot be a ground to doubt the prosecution version. This court is an agreement with the defence that as per the sole eyewitness Mr. Vikas and the IO the photographs of the vehicle were taken on the spot but the photographs of the offending vehicle on record shows that same have been clicked in broad day light. This anomaly came to light during the examination of PW7/SI Swaroop Singh before Ld. Predecessor on 06.11.2011. This witness was asked FIR No. 378/2001 11 Of 18 to clarify about the same and he replied that the photographs of the vehicle Ex. PW7/C and PW7/D were taken in the day. The reason was mentioned by him that after developing the initial photographs, it was revealed that same were washed out and therefore fresh photographs of the truck were clicked. The explanation provided by PW7 is quite possible but the IO has nowhere mentioned either in the chargesheet or in his statement/deposition about the same. All the above contradictions becomes irrelevant when the statement of the accused under Section 313 Cr.P.C is taken into consideration. What is the value to be given to the statement of the accused under Section 313 Cr.P.C has been laid down by Hon'ble Supreme Court of India in Mohan Singh versus Prem Singh and Anr. AIR2002 SC 3582 in the following manner :
" the statement made in his defence by the accused under Section 313 Cr.P.C can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that the statement under Section 313 Cr.P.C of the accused can either be rely in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part in found to be false on the basis of the evidence led by the FIR No. 378/2001 12 Of 18 prosecution See Nishikant Jha v. State of Bihar, AIR (1969) SC 422."
After going through the statement of the accused under Section 313 Cr.P.C, it appears that the accused has not denied that he was driving the offending truck on the relevant day. He has also not denied the accident having been caused from this vehicle rather he has admitted the same. He has stated that " I am innocent. I have not caused the accident voluntarily. I was neither rash nor negligent. I was having a valid driving license". He has also stated that " I was not driving the vehicle at a fast speed." He has further stated that "
The complainant was triple riding his bike when he was attempting to cross the road. I do not know how the deceased was hit."
It is clear from the above that the accused has admitted about causing the accident in question but at the same time, he has also stated that he was neither rash nor negligent. He has also took the defence that he was not driving the vehicle at fast speed rather complainant was triple riding his bike when he was attempting to cross the road. So, now it is to be seen as to whether the defence put forward by the accused is believable or not. For that it has to be established by the prosecution that the accused was rash or negligent FIR No. 378/2001 13 Of 18 while driving the offending vehicle.
Rashness or Negligence:
For holding an accused guilty under section 279 or under section 304A, one of the essential ingredients required to be duly proved is, that the act done which endangers the human life or the act done which causes the death of the person must necessarily be a "
Rash or Negligent Act". Where the act which caused the death of a person or which endangers the human life is not proved to be a Rash or Negligent Act, the accused cannot be held to be guilty under Sections 279 or 304A of the IPC. However, the terms rashness or negligence has not been categorically defined in any statute. The dictionary meaning of the term rashness is, "an act done without due consideration", i.e. an act done without anticipating or caring for the result that may ensue by the act done. Whereas, the dictionary meaning of the term negligence is " failure to exercise due degree of care under the given circumstances which any reasonable man would have exercised" or "failure to exercise due degree of care under the given circumstances which under a given situation law requires to be exercised". Accordingly, both rashness as well as FIR No. 378/2001 14 Of 18 negligence are subjective concepts, and for ascertaining whether any particular act is rash or negligent no straight jacket formula can be laid down. Each case has to be decided on the basis of its own peculiar facts and circumstances. Furthermore, rashness and negligence are pure questions of facts so no presumption can be raised with respect to these. Rashness/negligence ought to be duly proved by the party who alleges that the person endangering the human life or the person who has caused the death of another person was acting as such.
PW1 Mr. Vikas Sharma is the only eyewitness. He has deposed that on 18.10.2001, while returning after attending the function at about 11/11.15 p.m. along with his mother Smt. Saroj on his motorcycle bearing No.DL5SP2717 and when they reached near Dharampura Red Light, one truck bearing No. HR38F5066 came from the side of Seelampur at a very high speed without blowing horn and without caring red light. It has further been deposed by him that the aforementioned truck struck against his motorcycle and his mother was crushed by the same while he fell some distance away. The truck in question was got stopped by him and the driver was made to get down who told his name as Somraj. The driver has FIR No. 378/2001 15 Of 18 been correctly identified by the witness before the court. From this testimony, rashness of the accused is clearly made out. If a person drives a truck at night in high speed and does not care about the redlight, neither blows the horn then in view of the Court, same shall be termed as rashness and nothing else. The defence of the accused that the complainant himself was triple riding his bike is of no value as no suggestion to that effect has been put to the complainant during his crossexamination. Also, it is interesting to note that the accused has examined himself as DW1 after moving an application under Section 315 Cr.P.C but he has not deposed anything about the incident in question. Accordingly, this Court holds that the defence/exculpatory part of the statement of the accused under Section 313 Cr.P.C is not believable. So, it emerges that the involvement of the vehicle i.e truck bearing no. HR38F5600 being driven by the accused Som Raj along with his rashness in driving the same which resulted in the fatal accident in question has been proved beyond reasonable doubt by the prosecution. Accordingly, he is convicted for the offences under Section 279/304A IPC.
8. The accused has also been charged with for the offence under Section 3/181 Motor Vehicles Act as he was not having any valid FIR No. 378/2001 16 Of 18 license at the time of incident in question. Accused has examined himself as DW1 regarding this and has also furnished on record the certified copy of the driving licence and of the challan dated 17.10.2001. It has been submitted by the accused that at the time of accident, his licence was with traffic police officials in the challan and same could not be produced for that reason. Ld. APP for the State has cross-examined him regarding this and it has come on record that the licence or the challan which has been placed on record, has not been verified by any authority. Ld. Counsel for the accused has submitted that the judgment of Ld. MACT also mentions about there being a valid driving license of the accused. He has submitted the photocopy of the certified copy of the judgment of Ld. MACT. I have gone through the judgment and in the judgment, I am unable to find any such finding of Ld. MACT regarding the genuineness of the driving licence of the accused. The accused could have examined the officials from the authority concerned which issued the driving license in question to show its validity but it has not been so done. In view of the Court, the accused has failed to show that he was having a valid licence on the fateful day. Accordingly, he is convicted for this offence i.e under Section 3/181 Motor Vehicles Act also.
FIR No. 378/2001 17 Of 18 To come up for submissions/order on the point of sentence on 19.09.2014 at 2.00 pm. Dictated & Announced in the open court on 12.09.2014 ( SUNIL GUPTA ) METROPOLITAN MAGISTRATE(NE) KKD COURTS, SHAHDARA, DELHI FIR No. 378/2001 18 Of 18