Delhi District Court
Ashok Kumar vs The State on 19 August, 2016
Ashok Kumar v. State
IN THE COURT OF SH. VIMAL KUMAR YADAV,
ADDL. SESSIONS JUDGE-01:(CENTRAL)/THC:DELHI.
Crl. Appeal No. 03/15
New Case No. 54811/2016
ID No.: 02401R0104582015
Ashok Kumar
S/o Sh. Peetambar Dev
R/o Village Basara,
Tehsil & P.S. Beesalpur,
District Pilibheet, U.P.
........... Appellant / Accused
Versus
The State
Through its Secretary
NCT of Delhi.
.......... Respondent
Date of Institution : 25.02.2015
Date on which reserved for judgment: 23.07.2016
Date of judgment : 19.08.2016
Present: Sh. R. P. Singh, Advocate, Ld. Counsel for
appellant / accused.
Ms. Madhu Arora, Ld. Addl. PP for the State.
CA No. 03/15 Ashok Kumar v. State Page No. 1 of 12
Ashok Kumar v. State
JUDGMENT
1. Aggrieved by the impugned judgment dated 29.01.2015, and the order on sentence dated 31.01.2015, the appellant Ashok Kumar has preferred the instant appeal, which is hereby disposed off through this judgment.
2. Before adverting to the grounds on which the appellant has assailed the judgment, the indispensable facts are required to be recapitulated which go as follows. On 13.05.2007, at about 11.50 p.m. under ISBT flyover, near Jamuna Bazar, Kashmere Gate, Delhi, accused was found driving a truck bearing registration no. HR-55-B-2834 in a rash and negligent manner and caused an accident in which one person (unknown) sleeping / lying on the footpath became a victim and died. Complainant Devraj @ Punjabi, being an eyewitness, stated that accused was driving the truck in rash and negligent manner and due to high speed the truck got dis-balanced and not only ran over the victim but broke the railing on the sides of the road and, then only stopped. A portion of truck went beyond the railing and hanged in the air. Statement of complainant, Devraj @ Punjabi, led to the registration of the instant case as FIR No. 233/07 under section 279/304A/427 IPC by Police Station, Kashmere Gate.
3. The matter was taken up, by the police of Police Station Kashmere Gate and was investigated upon, which shaped up in a charge sheet filed under section 279/304A/427 IPC. A notice was served upon the accused for the offence under section 279/304A IPC on 28.05.2009, after compliance of section 207 Cr. P.C. Expectedly, the appellant pleaded not guilty to the allegations contained in the notice against him and that paved CA No. 03/15 Ashok Kumar v. State Page No. 2 of 12 Ashok Kumar v. State the way for the trial in which, the prosecution, in order to substantiate the allegations against the appellant / accused, examined twelve witnesses and thereafter statement of accused under section 313 Cr. P.C. was recorded. The accused not only controverted the evidence against him, but also stated that he is innocent and has been falsely implicated in this case. He, however, did not opt to lead evidence in his defence.
4. The Trial Court after considering the contentions raised by the contesting sides held the appellant guilty under section 279/304A IPC and convicted him through impugned judgment and sentenced him to undergo simple imprisonment for the period of four months alongwith fine of Rs. 500/- for the offence under section 279 IPC, in default of payment of fine simple imprisonment for 7 days alongwith simple imprisonment for the period of one year alongwith fine of Rs. 2,000/- for the offence Under section 304-A IPC, in default of payment of fine simple imprisonment for 20 days.
5. Ld. Counsel for appellant assailed the judgment by stating, inter alia, that there is no evidence as to how the accident took palace, thus, rash and negligent driving cannot be attributed to the appellant. It is further contended that the deceased was already dead and the accident has nothing to do with the death of victim.
6. Ld. Addl. PP, on the other hand, maintained that the judgment does not suffers from any infirmity as sufficient and cogent evidence is there showing not only the complicity of the accused, but the manner of driving, therefore, the judgment does not requires to be interfered with.
CA No. 03/15 Ashok Kumar v. State Page No. 3 of 127. Rashness and negligence are the two very vital issues of the instant case, thus, it is imperative to understand on to what it is and in relation to speed of a vehicle, how these factors are to be assessed and ascertained.
"Black's Law Dictionary describes 'negligence' as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful or others' rights."
"Meaning of the word 'rash' as per Oxford Dictionary is 'acting or doing without considering the possible results'. Likewise, Oxford Thesaurus of English shows that contextually the word 'rash' may mean hasty, overhasty, foolhardy, incautious, careless, thoughtless, imprudent, over-adventurous, daredevil, ill-considered, unconsidered, unthinking, injudicious, wild, etc. Rashness and negligence are words having different connotations in law."
"...Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike, rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him", as was observed in the judgment titled as Sushil Ansal v. State Through CBI, 2014 (3) SCALE 174.CA No. 03/15 Ashok Kumar v. State Page No. 4 of 12
Ashok Kumar v. State
8. The contention of the Ld. Counsel for the appellant that there is no evidence as to how the accident took place is contrary to record in as much as PW8, Dev Raj @ Punjabi is the eye-witness who had witnessed the accident and the manner of driving. He has deposed about all these aspects. According, to him the truck was coming at a high speed and lost its balance due to high speed and moved over on the footpath and broke the railing. The offending truck over turned on its side as the driver of the truck i.e. the appellant herein, could not control his vehicle. In the process, the person who was sleeping on footpath was crushed by the offending truck of the appellant. It is evident that the PW8 has deposed about the manner of driving, and described how the accident took place.
9. The elements of rashness and negligence can be inferred from the testimony of PW8. The contentions of the Counsel for the appellant that the high speed is not the proof of rashness or negligent driving is correct. However, if one fails to control the vehicle, then, and if it is on account of high speed it becomes uncontrollable then that is reckless and rash driving, as was of the appellant herein, who was driving the truck having a container presumably full of goods. He was driving down from the bridge, therefore, he should have been extremely careful about his speed. The truck was found turned on its side which, indicates that it was the failure of the appellant to control the vehicle which resulted into the accident presumably due to high speed as indicated by the circumstances and deposed by the eye witness. This, thus, falls into the scope and ambit of rash and negligent driving.
10. In the judgment titled as State v. Parmodh Singh, 2009 CrLJ (NOC) 277, it is observed:
CA No. 03/15 Ashok Kumar v. State Page No. 5 of 12Ashok Kumar v. State "Mere driving of a vehicle at a high speed or slow speed does not lead to an inference that negligent or rash driving had caused the accident resulting in injuries to the complainant. In fact speed is no criteria to establish the fact of rash and negligent driving of a vehicle".
But, then failure on the part of the vehicle driver to control the vehicle amounts to negligent driving irrespective of speed. And at times high speed renders the vehicle uncontrollable, that brings in the element of culpability.
In this context reference can be made to the judgment Mehnga Singh v. State, 2012 CrJL 4930 (Del), it is observed:
"Absence of high speed itself cannot absolve the petitioner from the culpability".
In Shakila Khader v. Nauser Gama, AIR 1975 SC 1324, it is observed:
"When a driver leads to an accident, the main question is whether it was rash and negligent. But in deciding this speed is not the only criterion. The width of the road, density of traffic and attempt to overtake are also criteria".
In the judgments J. S. Gore v. State, AIR 1971 Bom 164, it is observed:
"A finding as to criminal rashness or criminal negligence is to be arrived at by the Court-high speed of the vehicle is not enough to prove rashness or negligence on the part of the driver of a motor vehicle unless evidence is elicited from the witness as to what his notion about speed is".CA No. 03/15 Ashok Kumar v. State Page No. 6 of 12
11. It is, thus, evident that a set of various factors are to be considered to arrive at any conclusion regarding rashness and negligence and speed alone cannot be the deciding criteria. A person may be oblivious of the consequences even if driving at a slow speed and may cause accident, thus, the element of care, cautions, alertness and being alike, vigilant considerate and conscious to the circumstances and surroundings are the factors which would help determine the manner of driving. In the instant case the offending truck has gone past the footpath, which is a incriminating fact unto itself reflecting the manner of driving.
12. What, thus, is the fact which holds the key is the alertness, and carefulness of the degree which was enough to control the vehicle, high speed or low speed is being not so relevant.
13. It is not the case of the appellant that the brakes of the truck were not working properly or failed, inasmuch as, the mechanical inspection of the truck in question was carried on 14.05.2007 by ASI (Technical) Devender Kumar. He has submitted his report after conducting the mechanical inspection. He has been examined as PW6 and his report is Ex. PW6/A which describes the damages suffered by truck. The truck was not found fit for road test on account of the severe damages, particularly, on account of fact that the front right side road spring was damaged / broken. This witness has not been cross-examined to elicit as to whether the brakes were working or not and for that matter no such plea has been raised either. In these circumstances, it is the manner of driving which alone is responsible for this accident.
14. There is no doubt about the identity of the accused as the accused was apprehended from the spot itself. Therefore, no doubt or dispute about his identification for involvement and for that matter PW8, CA No. 03/15 Ashok Kumar v. State Page No. 7 of 12 Ashok Kumar v. State who is the eye-witness, has also identified him as the driver of the offending truck. On behalf of the owner of the truck, in response to the notice under Section 133 of Motor Vehicle Act, Sh. Parveen Kumar Soin, has been examined as PW5, who was looking after the work in respect of the truck bearing No. HR 55 B 2834 which was registered in the name of Smt. Neelam Soin, wife of Avinash Chander Soin, who happens to be the elder brother of PW5. He has clarified in his statement that he was looking after the work of managing the truck and therefore, competent to reply the notice. He replied the notice and according to him, the truck / container was being driven by appellant Ashok Kumar on 14.05.2007 at the time of accident. In view of these facts, there remains no doubt about the fact that offending truck was being driven by the appellant herein, at the relevant time when the accident took place. This fact has been further fortified by PW7 SI Pratap Singh, who has deposed that in the intervening night of 13
- 14.05.2007, he was posted in the PCR and on the receipt of the information about the accident, from the control room, he had gone to the site of accident and found the truck driver stuck in the driver's seat and extricated and rescued the truck driver. PW7 SI Pratap Singh has also identified the appellant as the person who was rescued by him from the driver's seat.
15. Therefore, it emerges on record that in the intervening night of 13 - 14.05.2007 at about 12.00 a.m., a truck bearing Registration No. HR 55 B 2834 was being driven by appellant, herein, at a fast speed and while coming down form the ISBT Flyover, Near Jamuna Bazar, beneath the flyover, he lost the control of truck as a result which the truck went on the footpath and also broke the railing on the sides of the road. In this process, the person who was sleeping on the footpath was crushed by the truck.
CA No. 03/15 Ashok Kumar v. State Page No. 8 of 1216. The contention that the person who came beneath the truck was already dead did not go with the facts coming on record. In this context, the Postmortem Report Ex. PW1/A can be seen, where the Doctor conducting the postmortem has been examined and he has opined that the cause of death was shock due to ante-Mortem cranio cerebral injuries. All the injuries on the body of the deceased were found ante-mortem in nature and was possible in kind of accident in which the deceased was involved. Incidentally, the deceased remained unknown despite the fact that the body of the deceased was preserved for about 10 days presumably in order to ascertain the identity but, unfortunately the same could not be. The appellant has since not led any evidence to show that the victim was already dead, therefore, the assertion on behalf of the appellant remains a bald assertion having no substance or strength in it and the same cannot be, therefore, given any weightage as the eye-witness of the accident has categorically stated about the fact that the deceased was sleeping on the footpath and was crushed by the offending truck.
17. Therefore, it is evident that Ld. Trial Court has reached to the right conclusion on the basis of the evidence coming on record showing that the truck was being driven by the accused which met with an accident and resulted into the death of an unknown person sleeping on the footpath. The contention of the Ld. Counsel for the appellant that the impugned judgment is not in consonance with the facts coming on record or against the established legal provision is, apparently, incorrect. Similarly, the contention that the impugned judgment does not given reasons also does not hold water in as much as the Ld. Trial Court has not only come to the right conclusion but has given reasons as well after examining the facts and law on the subject for arriving at the particular finding. Thus, no fault can be found in this process.
CA No. 03/15 Ashok Kumar v. State Page No. 9 of 1218. It was further contended by Ld. Counsel for the appellant that given the age of the appellant, his socio-economic and educational background and other attending circumstances, he should have been considered for the benefit of probation. The plea raised by the Counsel for the appellant for the benefit of probation has not been dealt with in so many words, but then, it does not appears that any such plea was raised either. It may be correct to say that the Ld. Trial Court should have considered this aspect, but then the probation in such the case is not warranted, not for that matter, otherwise is available.
19. In this context reference can be made to the judgment B. Nagabhushanam v. State of Karnataka, 2008 (5) SCC 730 : AIR 2008 SC 2557; Dalbir Singh v. State of Haryana, (2002) 5 SCC 82 : Air 2000 SC 1677, where the crux of the observations was as follows:
"Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under section 304-A I.P.C. as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. This sis the role which the courts can play particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles".
In the judgments State of Punjab v. Balwinder Singh, 2012 (2) SCC 182 : AIR 2012 SC 86, it is observed:
CA No. 03/15 Ashok Kumar v. State Page No. 10 of 12 Ashok Kumar v. State "Considering, the increased number of road accidents, the court, on several occasions, has reminded the criminal courts dealing with the offences relating to motor accidents that they cannot treat the nature of the offence under Section 304-A I.P.C. as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act 1958".
Reference in this context can be made the judgments in Sanjay Rambhau Patil v. State of Maharashtra, 2010 CrLJ 1407(Bom); Zamir Khan v. State, 2010 CrLJ 4044 (Bom) In the judgment Dalbir Singh v. State of Haryana, 2000 CrLJ 2283 : AIR 2000 SC 1677, "The Supreme Court has held that the benefit of this Act is not to be extended to persons convicting of the offence of causing death by rash and negligent driving".
Also to the same effect, is the observations in Ganpat Singh v. State of Rajasthan, 1998 CrLJ 716 (Raj).
In State v. Girdhari Lal, 2007 CrLJ 4347 (HP), it is observed:
"Accused had caused death by rash and negligent driving but was released on probation. It was held that benefit of probation could not be accorded to the accused held guilt under Section 304-A as it would amount to ignoring of law laid down by the Apex Court in Dalbir Singh v. State of Haryana. 59
20. In view of the aforesaid facts and circumstances, the appellant fails to successfully assail the impugned judgment. The Ld. Trial Court has analyzed the facts properly and correctly came to the conclusion CA No. 03/15 Ashok Kumar v. State Page No. 11 of 12 Ashok Kumar v. State which is according to the facts on record and the relevant legal provisions. Therefore, no flaw can be find out in the impugned judgment. As such, it is upheld and the appeal stands dismissed. Accused be taken into custody and sent to jail to serve the sentence. Copy of the judgment be provided to the appellant.
Trial Court Record be sent back.
File be consigned to Record Room.
Announced in the open Court on this 19th day of August, 2016 (VIMAL KUMAR YADAV) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI CA No. 03/15 Ashok Kumar v. State Page No. 12 of 12