Delhi District Court
State vs Desh Raj (Page 1 Of 18 ) on 17 August, 2011
(P/1)
FIR NO. 676/1996
u/s 279/338/304 A IPC and 3/181 M.V Act
P.S. Najafgarh
IN THE COURT OF SH RAJESH KUMAR GOEL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-02 ,
DWARKA COURTS
FIR NO. 676/1996
u/s 279/338/304 A IPC and
3/181 M.V Act
P.S. Najafgarh
Date of institution : 28.8.1992
Date of final argument : 05.8.2011
Date of final order : 17.8.2011
JUDGMENT
A SL NO. OF THE CASE : 02403R0334442003
B: DATE OF OFFENCE : 14.11.1996
C: NAME OF THE : Ramesh Rana
COMPLAINANT
D: NAME OF THE : Desh Raj
ACCUSED s/o Phool Singh
r/o Village Kakrola,
Mahender Garh,
Haryana.
E: OFFENCE : U/S 279/338 /304 A IPC
COMPLAINED OFF and 3/181 M.V Act.
F: PLEA OF ACCUSED : PLEADED
NOT GUILTY
State vs Desh Raj (Page 1 of 18 )
(P/2)
FIR NO. 676/1996
u/s 279/338/304 A IPC and 3/181 M.V Act
P.S. Najafgarh
G: FINAL ORDER : Convicted
H: DATE OF SUCH : 17.8.2011
ORDER
BRIEF REASONS FOR DECISION:
1. Briefly stated facts are that on 14.11.1996, two young
boys namely Mukesh and Vikas Sharma were coming on a motorcycle no. DL 4SM4275 from Gurgaon and going towards Najafgarh . At about 4:10 pm, at BSF Camp near bus stand, one bus no. DL1P8719 , was de boarding the passengers at the bus stand. It is alleged that one tempo bearing no. HR463080 , being driven by accused Desh Raj in rash and negligent manner was coming from Najafgarh side.
2. It is further alleged that driver of the said tempo was driving the vehicle at a fast speed and zigzag manner. When the motorcyclist was crossing the stationary bus , the said tempo bearing no. HR 46 3080 , hit the motorcycle and the bus due to which said Vikas Sharma , who was driving the motorcycle expired and Mukesh who was pillon rider sustained grievous injuries. It is also alleged that accused was driving the offending vehicle without any valid licence for driving the said State vs Desh Raj (Page 2 of 18 ) (P/3) FIR NO. 676/1996 u/s 279/338/304 A IPC and 3/181 M.V Act P.S. Najafgarh commercial vehicle. Ramesh Rana , driver of the bus no. DL1P8719 , lodged the complaint ExPW2/A on the basis of which present FIR was registered and the matter was investigated.
3. After investigation the challan was filed. Prima facie case U/s 279/338/304 A IPC and 3/181 M.V Act was made out against the accused. After compliance of section 207 Cr.P.C, accused was served with the notice u/s 251 CrPC accordingly by the Ld. Predecessor of this Court to which he pleaded not guilty and claimed to be tried.
4. In support of its case , prosecution has examined eight witnesses. One Sh S.S Rawat has been examined twice as PW7 and subsequently as PW8.
5. PW1 HC Zile Singh was the duty officer on the relevant day . He proved the registration of FIR ExPW1/A. PW4 HC Ramesh was posted at P.S Najafgarh and he accompanied the IO during investigation. PW5 Retd Inspector Narain Singh mechanically inspected the motorcycle bearing no. DL4SM4275, tempo no. HR463080 and Bus no. DL1P8719 and gave his reports ExPW5/A to ExPW5/C respectively. PW9 Insp. Bhagwati Prasad is the IO who investigated the matter.
State vs Desh Raj (Page 3 of 18 )
(P/4)
FIR NO. 676/1996
u/s 279/338/304 A IPC and 3/181 M.V Act
P.S. Najafgarh
6. PW2 Ramesh Rana is the driver of the bus , which was standing at the bus stop , and the complainant/eye witness, who lodged the complaint ExPW2/A. PW3 Mukesh ( pillon rider on motorcycle no. DL 4SM 4275 ) is the injured who sustained grievous injuries due to the said accident and another eye witness to the accident .
7. PW6 Dr. A.K Sharma conducted the postmortem on the body of the deceased Vikas Sharma and gave postmortem report ExPW6/A. PW7 Sh S.S Rawat proved the MLC ExPW7/A pertaining to injured/deceased Vikas Sharma . PW 7 Narender Pal Singh proved the MLC ExPW7/A of injured Mukesh.
8. After the prosecution evidence , statement of the accused u/s 313 CrPC was recorded wherein accused denied that he was driving the offending vehicle. Accused opted to lead evidence in his defence and has examined one Naresh Chand from Delhi Transport Authority as DW1 and one Jagat Ram as DW2.
9. I have perused the record and already heard the ld APP for the State and the ld counsel for the accused .
10. To prove the offence u/s. 279/338/304 A IPC the State vs Desh Raj (Page 4 of 18 ) (P/5) FIR NO. 676/1996 u/s 279/338/304 A IPC and 3/181 M.V Act P.S. Najafgarh following ingredients are required to be proved:
i) Driving of a vehicle , or riding on a public way.
ii) Such driving or riding must be so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person.
iii) Through that act of rash and negligent grievous injury and death should have been taken place.
11. First ingredient is that accused was driving offending vehicle and accident took place .
12. PW2 Ramesh Rana , who is the complainant deposed that accused present in the court was driving the Tata 407 , which was coming from the front side and was driving the vehicle speedly. He further deposed that driver of the said tempo lost his control and caused an accident. PW2 Ramesh Rana was cross examined by the accused. Even during his cross examination he replied that accused present in the court was driving the tempo and he had seen him at the spot. He further replied that accused fled away from the spot. Not even a suggestion was given to the PW2 that accused was not driving the offending vehicle.
13. PW3 Mukesh , who is the injured, has also identified the accused. He deposed that accused present in the court was driving the State vs Desh Raj (Page 5 of 18 ) (P/6) FIR NO. 676/1996 u/s 279/338/304 A IPC and 3/181 M.V Act P.S. Najafgarh tempo in question and caused the accident. He was also cross examined . During his cross examination also he identified the accused.
14. PW9 Inspector Bhagwati Prasad, who is the IO, deposed that he served the notice u/s 133 M.V Act ExPW8/C upon the owner of the offending vehicle no. HR463080 . Owner of the offending vehicle replied the said notice stating that accused Desh Raj was driving he offending vehicle on the date of accident . PW9 further deposed that the accused surrendered before the court on 20.11.1996 and he was formally arrested and then application of judicial TIP was moved but accused refused to participate in the TIP proceedings. He further deposed that accused Desh Raj was not having valid licence therefore provision of Section 3/181 M.V Act were added.
15. PW9 was not cross examined by the accused despite opportunities. Meaning thereby, the testimony of PW9 has gone unrebutted and unchallenged . That being so the notice u/s 133 M.V Act ExPw8/C and TIP Proceedings stands proved. Even otherwise also , this court take the judicial notice of the TIP proceedings.
16. It has come on record that during investigation the accused refused to join TIP , on the ground that he was shown to the complainant State vs Desh Raj (Page 6 of 18 ) (P/7) FIR NO. 676/1996 u/s 279/338/304 A IPC and 3/181 M.V Act P.S. Najafgarh outside the court . There is absolutely no evidence to prove that the accused was shown to the complainant, at any point of time. PW9 , who is the IO has not been cross examined on this point. Thus, there is no material or circumstance from which it may be interfered that the accused was or could have been shown to the complainant .
17. Further , even otherwise there could have been no occasion for the complainant to remain present in the Court at the time of production of the accused . It has come on record that the accused himself had move the application before the court for surrendering on 20.11.1996. On the same day after , arresting the accused formally , IO moved the application for TIP of the accused. There is no way the complainant could have come to know that the accused is going to surrender before the court on a particular date unless Investigating Officer decided to inform the complainant in this regard. Investigating officer has not been cross examined on the point that he had informed the complainant to remain present in the Court, on that date . Thus, there is no material from which it may be inferred that the complainant was present in the court on the date when accused surrendered before the court.
18. I, therefore, have no hesitation in holding that the accused refused the TIP without any justification and without any State vs Desh Raj (Page 7 of 18 ) (P/8) FIR NO. 676/1996 u/s 279/338/304 A IPC and 3/181 M.V Act P.S. Najafgarh reasonable ground. If the accused refused Test Identification Parade without any justifiable cause, he does at his own peril and the Court will, in such circumstances, be justified in drawing an interference that had the accused participated in Test Identification Parade he would have been identified by the witnesses and that precisely was the reason why he refused to join the TIP. In this regard help can be taken from a decision of a case titled as RAJU versus STATE decided by HON'BLE High Court of Delhi CRL.A. 96/2009.
‟
19. Similar view was taken by the Hon ble Supreme Court in Suraj Pal vs. State of Haryana (1995) 2 SCC 64. The identification of the appellants in Court, coupled with their refusal to join TIP, without any reasonable ground, is sufficient .
20. In another case AIR 2003 SUPREME COURT 3805 "Munna v.State (N.C.T. of Delhi)" = 2003AIR SCW 4355 it was held that " In a case where an accused himself refuses to participate in a test identification parade, it is not open to him to contend that the statement of the eyewitnesses made for the first time in Court, wherein they specifically point towards him as a person who had taken part in the commission of the crime, should not be relied upon. This plea is available provided the prosecution is itself responsible for not holding a test identification parade. However, in a State vs Desh Raj (Page 8 of 18 ) (P/9) FIR NO. 676/1996 u/s 279/338/304 A IPC and 3/181 M.V Act P.S. Najafgarh case where the accused himself declines to participate in a test identification parade, the prosecution has no option but to proceed in a normal manner like all other cases and rely upon the testimony of the witnesses, which is recorded in Court during the course of the trial of the case."
21. During statement recorded u/s 313 CrPC , accused replied that he was not driving the offending vehicle . On 20.11.1996, he was called by the owner of the offending vehicle from his residence on the ground that vehicle is to be taken from the court. The owner took him to the court and he was made to sign certain documents for releasing the tempo. Thereafter, he went to his house alongwith the owner . To a question , he replied that he does not remember the name of the owner of the offending vehicle. It is very surprising that on one occasion , he is claiming to have visited the court alongwith the owner of the offending vehicle from his residence to get the offending vehicle released and he had signed certain documents on the asking of the owner and he went to his house alongwith the owner and the vehicle but on another occasion he says that he does not remember the name of the owner. This can not be accepted in normal circumstances. This shows that accused has taken false plea that he was not driving the offending vehicle.
22. Now, take the testimonies of DW 2 Jagat Ram who State vs Desh Raj (Page 9 of 18 ) (P/10) FIR NO. 676/1996 u/s 279/338/304 A IPC and 3/181 M.V Act P.S. Najafgarh deposed that accused is known to him since childhood. On 20.11.1996, a Bellaro came to the village of accused , one person known to the Desh Raj asked Desh Raj that he has to come with him for releasing the vehicle and the accused Desh Raj alongwith him and that person came to Delhi at Patial House Court . Some papers were signed by the accused Desh Raj at Patiala House Courts and after that vehicle was released and he alongwith the accused Desh Raj left for the village. After some time, he came to know that accused Desh Raj was falsely implicated in the present case.
23. The testimony of DW2 will not help the accused much . This court has already observed that accused was driving the offending vehicle and caused an accident . The testimony of DW2 is not convincing . He is referring the fact that owner of the offending vehicle took the accused Desh Raj to get release the offending vehicle but again he could not tell the name of the owner. He is claiming to have visited the court but during his cross examination , he could not tell anything in this regard.
24. How and on what basis , DW2 is claiming that during the period between 08.11.1996 and 20.11.1996, accused was present in the village as during his cross examination, he replied that he did not remain with the accused for 24 hours from 08.11.1996 to 20.11.1996 . Further it has come on record that DW2 and the accused are resident of same village State vs Desh Raj (Page 10 of 18 ) (P/11) FIR NO. 676/1996 u/s 279/338/304 A IPC and 3/181 M.V Act P.S. Najafgarh and is known to each other.
25. Further, in the reply to the notice u/s 133 M.V Act ExPW8/C , it has been specifically mentioned that accused was driving the offending vehicle . It has not been explained by the accused as to why he agreed to visit the court on asking of the owner and signed certain documents, if he was not driving the offending vehicle . From the testimonies of prosecution witnesses and documents on record, it stands proved that on 14.11.1996 at about 4:10 pm at BSF Camp, Bus Stand , accused Desh Raj was driving the offending vehicle no. HR463080 and caused an accident .
26. Next ingredient is that accused was driving the vehicle in a rash or negligent manner .
27. In order to prove the same, prosecution has examined two material witnesses. PW2 Ramesh Rana , who is the driver of the bus number DL1P8719 , deposed that on relevant day he was driving the bus and was going from Badarpur to Najafgarh . At about 4:10 pm , he stopped his bus at BSF Camp Chhawla bus stand and passengers were getting down from the bus. One Tata 407 being driven by accused , present in the court, State vs Desh Raj (Page 11 of 18 ) (P/12) FIR NO. 676/1996 u/s 279/338/304 A IPC and 3/181 M.V Act P.S. Najafgarh came from front side . Accused was driving the Tata 407 speedily . He lost his control and hit the bus from driver side on back side . Two boys were riding on a motorcycle. Said motorcycle was also hit by the said Tata 407. They sustained injuries. They were taken to the hospital. Police came and recorded his statement ExPW2/A and photographs were taken. IO prepared site plan ExPW2/B at his instance.
28. PW2 was cross examined by the accused but even during his cross examination he stated that he was going from Badarpur to Najafgarh. Accident took place at the bus stop of BSF Camp Chawla. Passengers were getting down from his bus at the bus stand and that is why his bus was in stationary condition. The area is an open area . Tempo was coming from Nafargarh and was going towards Kapashera border. He was sitting on driver seat. Tempo was coming from his front side and his bus was standing before the speed breaker and the tempo took a jump on the speed breaker, but driver could not control the vehicle and then the tempo hit the back portion of his bus from the driver side. The width of the road is about 6065 ft. PW2 further replied that " Motorcycle wala bus ke saath me aaya hi that ki tempo wale nain usko bhi bheech diya.
"
29. PW3 Mukesh has also supported the case of the prosecution. He stated that on 14.11.1996, he was coming from Gurgaon to State vs Desh Raj (Page 12 of 18 ) (P/13) FIR NO. 676/1996 u/s 279/338/304 A IPC and 3/181 M.V Act P.S. Najafgarh Najafgarh alongwith his friend Vikas by motorcycle no. DL 4 SM4275. His friend Vikas was driving the motorcycle. While they reached at BSF Camp Chhawla bus stand , at about 4:00 pm, one bus was standing on bus stand and passengers were getting down. One tempo bearing no. HR463080 was coming from the front side in zig zag manner and at a fast speed. Tempo hit the bus from backside of the driver side . In between tempo also hit their motorcycle . PW3 further deposed that he and his friend received injuries. Accused , present in the court was driving the offending vehicle. They were taken to the hospital by BSF vehicle.
30. PW3 was cross examined by the accused. Even during his cross examination, his testimony has gone unchanged on material points. If testimony of PW2 and PW3 coupled with the testimony of other prosecution witnesses and documents on record is put to close scrutiny , it becomes crystal clear that accident took place only because of the rash or negligent driving on the part of the accused.
31. PW9 has deposed that he took the photographs of the spot as well as the vehicles. The positives and negatives are ExP1 to ExP14. Site plan ExPW2/B was prepared at the instance of Ramesh Rana( PW2) . Site plan ExPW2/B and photographs ExP1 to Ex14 have not been disputed by the accused. From the site plan , it is evident that the road State vs Desh Raj (Page 13 of 18 ) (P/14) FIR NO. 676/1996 u/s 279/338/304 A IPC and 3/181 M.V Act P.S. Najafgarh where the accident took place is about 40 feet wide and from the photographs it is evident that the bus number DL 1P8719 , was in stationary position at the bus stand. The offending vehicle was coming from opposite side. The speed breaker is also reflected in the site plan which corroborate the testimony of PW2 to the effect that offending vehicle took a jump at speed breaker but he could not control the vehicle and hit the bus from the back portion of the driver side.
32. Further, photographs in question have clearly established the fact that it was the act of the driver of the offending vehicle due to which accident took place. The bus has been hit from back portion of the driver side and the motorcyclist appears to have been crossing the stationary bus and there is indication of speed breaker also. It has come on the record that the driver of the offending vehicle could not control the vehicle at the speed breaker . This all shows that he was driving the offending vehicle on a single road at a fast speed . Driving a vehicle on a single road having no divider in such a manner amounts to rash or negligent driving.
33. PW5 Retd Insp. Narayan Singh carried out the mechanical inspection of the Motorcycle , offending vehicle and the bus and gave reports ExPW5/A to ExPW5/C. These reports also support the fact that the State vs Desh Raj (Page 14 of 18 ) (P/15) FIR NO. 676/1996 u/s 279/338/304 A IPC and 3/181 M.V Act P.S. Najafgarh offending vehicle had fresh damages on right side on its front portion . Motorcycle and the bus were having fresh damages which corroborates the photographs ExP1 to ExP 14 and testimonies of other prosecution witnesses.
34. The testimony of prosecution witnesses particularly, PW2 and PW3 has clearly established that accused was driving the vehicle in rash or negligent manner . There is nothing on record to disbelieve the testimony of aforesaid witnesses who have clearly explained the mode and manner of the accident which constitute rash or negligent driving on the part of the accused.
35. Accused is facing trial for offence u/s 3/181 M.V Act also. DW1 Naresh Chand, LDC from Delhi Transport Authority, Janak Puri Zone, deposed that accused was having driving licence bearing no. C 94110460 , date of issue 24.11.1994 and date of expiry 23.11.1997. During his cross examination by ld APP for the state , DW2 stated that the licence in question is only for light motor vehicle and not for the commercial vehicle. He admitted that as per the said licence, the driver was not supposed to drive the vehicle in question. Meaning thereby at the time , when the accused was driving the offending vehicle he was not having a valid licence.
State vs Desh Raj (Page 15 of 18 )
(P/16)
FIR NO. 676/1996
u/s 279/338/304 A IPC and 3/181 M.V Act
P.S. Najafgarh
36. I am of the considered opinion that driving a commercial vehicle without having any valid licence is conclusive proof to hold that accused was driving the offending vehicle in rash or negligent manner.
37. Last ingredient is that due to said accident one Mukesh received grievous injury and one Vikas Sharma expired.
38. In this regard prosecution has examined PW 7 Narender Pal Singh who deposed that MLC ExPW7/A pertaining to injured Mukesh was prepared by Dr.Sita Laxmi and the injury was opined as grievous . He further deposed that he identify the signatures of the doctor Sita Laxmi as he had seen her writing and signing during the course of her duties. The said MLC ExPW7/A is on the record wherein nature of injury has been opined as grievous. During the statement recorded u/s 313 CrPC , accused has not taken any serious objection to the said MLC. Injured PW3 Mukesh deposed that due to the accident he had received the head injury of very severe nature.
39. PW6 Dr. A.K Sharma deposed that on 16.11.1996 , he conducted postmortem on the body of the deceased Sh Vikas Sharma and gave report ExPW6/A. He further deposed that cause of death was State vs Desh Raj (Page 16 of 18 ) (P/17) FIR NO. 676/1996 u/s 279/338/304 A IPC and 3/181 M.V Act P.S. Najafgarh haemorrhagic shock following blunt impact and could be due to roadside accident.
40. PW 6 and PW7 were not cross examined by the accused. It means that accused has not disputed the MLC report and the postmortem report which clearly establishes that injured Mukesh received grievous injuries and one Vikash Sharma expired.
41. The manner and the mode of accident has been well explained which establishes the rashness or negligent , as here in above discussed on the part of the driver/accused . In the present case it is duly proved on record that rash or negligent Act of the accused was the proximate cause of the death of the Vikas Sharma and injuries received by the injured Mukesh ( PW3) . There is a direct nexus between the death of the person and the injury caused to the victim and rash or negligent act of the accused. All the memos have been duly proved and all the witnesses have supported each other and thus corroborate the case of prosecution. There is nothing on record for not believing the testimonies of the prosecution witnesses. I am unable to come to the conclusion that they are not speaking the truth or that they cannot inspired confidence. The accused has not been able to show any reason whatsoever as to why said witnesses got falsely implicate him in the present case.
State vs Desh Raj (Page 17 of 18 )
(P/18)
FIR NO. 676/1996
u/s 279/338/304 A IPC and 3/181 M.V Act
P.S. Najafgarh
42. In view of the aforesaid observation , facts and
circumstances of the case, I hold that prosecution proved the ingredients of section 279/338/304 A IPC and 3/181 M.V Act against the accused beyond the shadow of doubt . Accused Desh Raj is , therefore, stands convicted for committing an offence punishable u/s 279/338/304 A IPC and 3/181 M.V Act . However , accused shall be heard separately on the point of sentence.
(RAJESH KUMAR GOEL)
ACMM-02/ Dwarka
ANNOUNCED IN THE OPEN COURT
TODAY I.E 17.8.2011
State vs Desh Raj (Page 18 of 18 )