Delhi District Court
Randhir Singh S/O Late Sukhan vs The State on 18 October, 2008
IN THE COURT OF MANOJ JAIN: ADDL. SESSIONS JUDGE:
ROHINI:DELHI
Criminal. Appeal No. 06/2008
Randhir Singh s/o Late Sukhan,
R/o Village Neewal, Nangloi,
Delhi.
............Appellant/convict
Versus
The State ....................Respondent
Date of filing :25.08.2008
Date of conclusion of arguments :04.10.2008
Date of decision :18.10.2008
JUDGMENT
1 Appellant has been found guilty for commission of offences under Sections 279/338/304A IPC and has been sentenced consequently. Appellant has taken exception to such judgment and order on sentence.
2 Let me give a very brief background of the case leading to the present appeal.
1 (CA No. 06/2008) 3 One Sh. Ashok Kumar Kaul was going to Baroda House via Main Najafgarh Road on 03.04.1996. It was 8.15 AM and he was driving scooter no. DL4SK5605 and his wife Santosh was on the pillion seat. A little before Subhash Nagar Turning, one blue line bus bearing no. DL1P6508 came from behind in a very fast speed and in a rash and negligent manner and hit their scooter from rear. Due to the impact of the accident, scooterist and his wife fell down. Wife of scooterist was crushed by the front wheel of the bus. Scooterist Ashok Kumar Kaul also suffered grievous injuries and he also claimed that he could identify the bus driver if shown to him. In his first report before the police, Ashok Kumar also claimed that his uncle R.K. Kaul was also following them on a scooter and he had also seen the accident. Since, bus driver had fled from the spot after the accident, notice under Section 133 Motor Vehicles Act was served upon the owner of the bus. On the following day, owner of the bus produced the bus driver i.e. appellant/accused at the Police Station. He was accordingly arrested. He was also asked to participate in the TIP proceedings. However, he refused to participate in the same.
4 Chargesheet was accordingly filed in the Court and accused was served with notice under Section 251 Cr.P.C. for committing offences under Sections 279/338/304A IPC. He pleaded not guilty and claimed trial.
2 (CA No. 06/2008) 5 Prosecution examined 15 witnesses in its support. Stand of the accused was of complete denial and he claimed that he was not driving the bus in question at all. He did not lead any evidence in defence.
6 Learned trial court, on the basis of evidence and material on record, held the accused guilty for said offences and convict him there under.
7 Sh. A.N. Sawhney, learned counsel for appellant has challenged the conviction, primarily, on the ground that there is nothing on record to show that offending bus was being driven by the accused. It has also been argued that the manner in which the accident had taken place, scooterist could not have been in any position to say as to who was driving the bus and his identification of the accused is not worthy of credence. It has also argued that prosecution case, in order to strengthen its case has taken help of other relatives of Sh. Ashok Kumar Kaul and presence of such witnesses, who claimed that they had seen the accident, at the spot was highly improbable. It has been claimed that they had been introduced in the scene just to give a boost to the case of prosecution. My attention has been drawn towards the testimony of the owner of the bus in question and it has been argued that owner had categorically denied the involvement of the accused in 3 (CA No. 06/2008) the accident in question.
8 Learned Addl. P.P. has, on the other hand, justified the impugned judgment.
9 I have given my thoughtful consideration to the rival contentions and perused the entire material available on record. 10 As per the case of prosecution, after the alleged accident, bus driver had fled from the spot. Accident took place on 03.04.1996 and police swung into action. As per record of Transport Authority, registered owner of said bus was Ram Kumar s/o Darshan Singh and notice under Section 133 Motor Vehicles Act was sent to him. However, such notice was received and replied by one Virender Kumar s/o Randhir Singh who claimed that Ram Kumar was his uncle (Chacha) who had issued him authority to run the bus.
11 Reply of Virender Kumar is very important. Such reply has been proved as Ex.PW15/C and in his such reply he categorically claimed that on 03.04.1996 bus no. DL1P6508 was being driven by Randhir s/o Sukhan. So much so, he even produced the accused before the police and it was only due to the aforesaid fact, accused Randhir Singh was arrested.
12 As it is already noticed above, since Ashok Kumar Kaul had 4 (CA No. 06/2008) claimed that he could identify the driver if shown to him, accused was produced before the Court immediately in muffled face and accused was at once referred to concerned link Court for holding of TIP. However, accused Randhir Singh did not participate in TIP claiming that many people had already seen him.
13 Virender Kumar entered into witness box and has, surprisingly, not supported the case of the prosecution. He admitted that he had received the notice in question on behalf of Ram Kumar and he also admitted that reply was given which was also bearing his signatures. He also admitted that Ram Kumar was registered owner of the bus in question and also duly proved SPA executed in his favour by Ram Kumar. But thereafter he took a complete somersault and claimed that he did not know as to who had prepared the reply. So much so, he also claimed that he did not know as to who was plying the offending vehicle at the relevant time. He claimed that there were 2 or 3 drivers and he could not tell the names of the drivers who were employed by him at that time. He was duly crossexamined by the prosecution with the permission of the Court but he remained adamant to his stand and claimed that accused was not driving the offending bus at the relevant time.
14 Fortunately for prosecution, fate of the case is not dependent upon his version alone. As already note above, holding of 5 (CA No. 06/2008) TIP was found necessary but accused himself is to be blamed as he refused to participate in the TIP. Sh. Virender Kumar produced him before the police on 04.04.1996 and on same day he had declined to participate in the TIP claiming that many people had seen him. His such utterance only indicates that he had been seen by many people at the spot. It endorses the fact that he was the driver of the killer bus. Moreover, testimony of Sh. V.K. Yadav, the then learned MM is completely unrebutted and uncontroverted and, therefore, adverse inference is also liable to be drawn.
15 Sh. Ashok Kumar Kaul entered into witness box and he has emphatically identified the accused. I have seen his crossexamination and in his such crossexamination, he also claimed that though he did not know accused before hand yet he had noticed him several times. He claimed that there were several buses on route and though he did not know all such drivers but he could identify those persons who used to ply buses at that particular morning time. He claimed that he always used to go his office by scooter. Defence counsel has stated that accident in question had been caused from behind and in such a situation, it is not possible for anyone to see as to who was driving the vehicle. To me, situation cannot always be generalized in this regard as different people react differently. Fact remains that Sh. Ashok Kumar Kaul has specifically deposed that he had noticed the driver at the spot and that the driver had fled from the spot. He, undoubtedly, also 6 (CA No. 06/2008) claimed that he did not attempt to catch him or talk to him. Reason is palpable. His wife had been badly crushed under the wheels of the killer bus and his first priority was to attend to his wife. 16 Sh. R.K. Kaul is the uncle of PW1 Ashok Kumar Kaul and he, too, has categorically identified the accused in the Court. He even claimed that bus did not stop after hitting the scooter and tried to speed away but since a little further away, there was a red signal, the bus came to halt and the driver jumped from the driver window and ran away while crossing the central verge. He deposed that accused present in court was the same person who had run away after jumping from the driver side window. Sh. R.K. Kaul was accompanied by his son Rohit Kumar Kaul and even Rohit Kumar Kaul has also duly identified the accused in the witness box.
17 I do not find any reason which may show that Sh. R.K. Kaul or Rohit Kumar Kaul are made up witnesses or have been falsely introduced to strengthen the case of the prosecution. It is also not made clear by the defence as to why they all would depose falsely in this regard.
18 Rather, Sh. Ashok Kumar Kaul has categorically given in his report the name of Sh. R.K. Kaul and claimed that he had witnessed the accident as he was also following him. There does not seem to be case of any deliberate introduction on the part of investigating agency. 7 (CA No. 06/2008) PW4 Sh. R.K. Kaul was posted at Delhi Secretariat as Under Secretary and he was also going to his office at that time. His son was also having his office at Rajender Nagar and he was also going to his office. Since it was a regular morning hour of a working day and since these all witnesses were residing together at same house, it was very much imaginable that they all had started from the house together. Simply because Sh. R.K. Kaul and his son are close relatives of the victim does not mean that their evidence is per se inadmissible or liable to be thrown away.
19 Moreover, defence had put a suggestion to the effect that accident had been caused by other bus. It was suggested to R. K. Kaul that accident was not caused by the bus that was being driven by the accused. It can be thus inferred that defence admits that accused was a bus driver but accident had been caused by another bus and not by his bus. If that was so, he could have led evidence to substantiate the same. It is also very much apparent that accident had been caused by the bus in question only as even the mechanical inspection report, which has been duly proved, affirmed the aforesaid fact.
20 In view of my aforesaid discussion, identification of accused before the Court does not become doubtful from any angle whatsoever. Thus, it stands established that accused was driving the bus in question.
8 (CA No. 06/2008) 21 Now, let me see the manner of driving.
22 Offending bus had hit the scooter from behind and such fact itself indicates the culpable rashness. It's nobody's case that Sh. Ashok Kumar Kaul was driving his scooter negligently or that he himself was responsible for the accident. Moreover, even otherwise contributed negligence can only be a mitigating circumstance at the time of awarding sentence if at all such contributory negligence is found to be existing.
23 Learned Defence Counsel has contended that speed itself cannot be said to be the deciding factor. It has been argued that there is nothing on record to suggest that the accused was driving rashly or negligently. It has been argued that proof of rashness is essential and criminality can never be presumed. This contention has been made on the strength of Judgment cited as Gajender Bhara Sagaria Vs. State of Orissa IV (1993) CCR 3188 ORISSA. I have gone through the aforesaid Judgment and undoubtedly, speed alone cannot be a determinative factor. In the same Judgment, it has also been observed that yet speed certainly throws light on the question as to whether vehicle was being driven in a rash or negligent manner depending upon 9 (CA No. 06/2008) the locality, density or crowd etc. 24 A vehicle which is driven on a congested road even within the permissible speed limits may still constitute rashness and vice versa driving a vehicle at breakneck speed at an isolated stretch, with not a soul in sight, may not be considered rash driving. It would depend upon nature and situation of road, concentration of pedestrians and vehicular traffic on it and many such other relevant factors. It is already noticed above that the accident in question had taken place at a very busy road. One can notice hysterical traffic on Main Najafgarh Road. On such a busy stretch of Delhi, a driver, who is rather driving a public conveyance is supposed to be extra cautious. Undoubtedly, there cannot be any straightjacket formula which may indicate as to what speed would be a reasonable speed. Speed is relative and elastic term and a lot depends upon the other attendant circumstances. One cannot be oblivious of the hour of the day and chockablock road of Delhi. Given the situation, therefore, instead of driving the vehicle at a fast speed, he was supposed to be slow. He must be noticing the scooter from the wind screen and despite that in his overenthusiasm or zealous driving or may be in order to collect more passengers, rammed the scooter. His said act reveals nothing but culpable rashness. His over hasty act has resulted in the death of a lady and her husband had also suffered grievous injuries. A professional driver has to have a great reflex, anticipation and should foresee emergency. Here what to talk of reflex, he flattened a scooter 10 (CA No. 06/2008) which was all along in his vision. Care and caution had been thrown to the winds. Bus did not stop after the accident and as per site plan, it came to halt after 60 meters. Thus, the speed of the bus coupled with the fact that the stretch was very busy and that the scooterist was going ahead of the bus and that the bus had hit the scooter from rear, there is no qualm regarding the proof of the rashness on the part of the accused. Learned Trial Court was therefore fully justified in recording conviction u/s 279,338 and 304A IPC.
25 As regards the sentence, the Trial Court has already taken a lenient view. I would say that a glance on order on sentence was initially indicative as if the trial court was awarding some compensation to the family of victim as well but, to my dismay, while concluding nothing of that sort was done at all and victim's family was left in the lurch. Appellant is not entitled to probation. In the case of DALBIR SINGH V. STATE OF HARYANA AIR 2000 SC 1677, the Hon'ble Apex Court expressing grave concern about the negligence of a professional driver causing death disapproved the application of Probation of Offenders Act for such offences. Convict could have been handed out sentence of maximum period of two years for the offence u/s 304A IPC and he has been sentenced to R.I. for a period of one year along with fine of Rs. 6,000/. However, in Abdul Hamid Vs. State 1993 (1) Accidents Judicial (Delhi), page507, it has been held that when conviction is recorded u/s 304A IPC, there is no need to impose any 11 (CA No. 06/2008) separate sentence for minor offence u/s 279 IPC because offences u/s 304A IPC and 338 IPC and similar offences in aggravated forms. Thus, the sentence as imposed u/s 279 IPC is hereby set aside and the fine imposed there under would be liable to be refunded . Rest of the sentence is maintained as it is.
26 Before parting, I would certainly like to refer to the conduct of the owner of the bus. Accused, after causing the accident, fled from the spot. It was his duty to stop as per Section 132 of Motor Vehicles Act. But, sometimes, in order to avoid irk of the people, such drivers are forced to abandon the vehicle and to flee away. However, the duty of the owner of the vehicle is to give requisite information to the police immediately. Owner of the bus was served with notice u/s 133 Cr.P.C. Though, the registered owner was one Sh. Ram Kumar yet fact remains that such Ram Kumar had executed special power of attorney in favour of his nephew Virender Kumar. Virender Kumar had given the reply and had also produced the accused before the police claiming that accused was driving the bus at the relevant point of time. Instead of sticking to his such reply, Virender Kumar deposed in favour of the defence. He rather tried to save the accused by claiming that he was not driving the vehicle and he also disowned his reply. It becomes very much apparent to me that he has, knowingly or willfully, given false evidence with intention to screen the offender. All the other eye witnesses have categorically identified the accused as the driver of the 12 (CA No. 06/2008) offending bus. Accused himself had also refused to participate in TIP. Reply given by Virender Kumar is on judicial record and he though claimed that the reply was given and was bearing his signatures yet he came up with a fanciful explanation claiming that he had not prepared the reply. There could have been only two possibilities. Either he tried to mislead the investigating agency by giving a wrong name of the bus driver or he was trying to shield the accused. Repercussions of both are serious and alarming. In view of the other facts before me as already discussed above, it leaves no doubt in my mind that it was accused Randhir Singh who was driving the offending bus and, therefore, first possibility evaporates in the air. Thus, though Virender Kumar had given truthful reply during the investigation yet in the witness box, he has knowingly or willfully given a false evidence to save accused from the clutches of law. On careful perusal of record, it is also found that he even stood surety for accused and in affidavit categorically deposed that accused was his employee. It was, therefore, a fit case where the learned Magistrate should have taken recourse to Section 344 Cr.P.C. I accordingly direct learned Metropolitan Magistrate to resort to Section 344 Cr.P.C. and to try witness Virender Kumar for giving false evidence as per provisions of law.
27 Bus, moving on a road in Delhi, is acquiring a menacing character. It is a freighting sight in itself. For passengers inside the bus and also for the pedestrians or other users of the road, journey each day 13 (CA No. 06/2008) is like a tryst with destiny or death, if I may say so, as these killer machines have converted the roads into virtual gallows. As a matter of routine, every Delhizen moves out from his house to his work place not with a prayer for success in life but for safe journey back home. Road accidents are increasing in Delhi at abysmal rate and something is required to be done before it's too late. Bus drivers commit accident after accident and are still found behind steering wheels. There is no record of their conviction, it seems. Motor Vehicles Act incorporates one very important provision in this regard. It is section 210 of Motor Vehicles Act. Courts are not resorting to aforesaid mandatory provision and very rarely a conviction is reported to licensing authority. The object of such provision is to intimate the concerned licensing authority so that appropriate further action including revocation of license is taken at their end. Moreover court can, in appropriate situation, itself revoke driving license of such convict albeit temporarily u/s 20 of Motor Vehicles Act. Since, I am hearing appeal against conviction, it will not be apposite to now add anything further to the sentence already meted out to accused. It is, however, expected that Ld. Trial court would keep such provisions in mind and would use the same judiciously in future. It would be also appropriate if a copy of this order is transmitted to Ld. CMM with a request to make the magisterial courts including Special MMs aware about said mandatory provision so that road journey in Delhi becomes lot more harmless. I am sure that his subtle and gentle briefing would go a long way.
14 (CA No. 06/2008) 28 A copy of this order be given to convict free of cost. He be sent to jail under appropriate warrants. Appeal file be consigned to record room. Trial court record with a copy of order be sent to Ld. Trial court with a direction to take further action is observed above. Announced in the open Court on this 18th day of October, 2008.
(MANOJ JAIN) ADDL. SESSIONS JUDGE ROHINI: DELHI 15 (CA No. 06/2008) 16 (CA No. 06/2008)