Delhi District Court
Ibrahim vs State Ca No.64/16 on 5 January, 2018
Ibrahim Vs State CA No.64/16
IN THE COURT OF SH. MANISH YADUVANSHI, ADDL.
SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
C.A. No. 64/16 & Case No. 54398/16
IN THE MATTER OF:
Ibrahim,
S/o Mohd. Shakur,
R/o A223, Bhalswa Village,
Harijan Basti, Jhangirpuri,
Delhi
AT PRESENT:
R/o A45, Keshav Nagar,
Mukti Ashram Land,
Gali No. 2, Delhi36. ....... Appellant
Versus
Govt of NCT of Delhi ...... Respondent.
Date of Institution : 29.05.2014 Date of arguments : 02.01.2018 Date of Judgment : 05.01.2018 Result: Appeal dismissed Page 1 of 14 Ibrahim Vs State CA No.64/16 JUDGEMENT ON APPEAL U/S 374(3) CR.P.C.
1. The appellant/convict was tried for committing offences punishable under Section 279, 337 & 304A IPC. In the impugned judgment dated 8.1.2014, he was held guilty for all the above offences. Vide separate order on point of sentence dated 6.5.2014, which is also impugned, the appellant was sentenced to S.I for a period of 2 months for offence punishable U/s 279 IPC; S.I for a period of 2 months for offence punishable U/s 337 IPC; S.I for a period of one year for offence punishable U/s 304A IPC. All the sentences are to run concurrently with benefit of Section 428 Cr.P.C. Besides the above, the appellant was also ordered to pay Rs. 30,000/ as compensation to the LRs of deceased Happy Bhalla. I.D. S.I for a period of 3 months. He was also ordered to pay Rs.20,000/ as compensation to the injured Dr. Sanjay Bhalla. I.D. S.I for a period of 2 months.
2. The appeal is preferred on the ground that the Ld. Trial Court failed to note the contradictions and inconsistencies in Result: Appeal dismissed Page 2 of 14 Ibrahim Vs State CA No.64/16 statement of PW2/complainant to the effect that PW 2 had firstly stated that he was not having a valid driving license at the time of accident, while he later on submitted that he did have a valid driving license which was not collected by the IO. It is urged that the evidence shows that the maximum speed of vehicles plying at the spot of occurrence was 20 Km per hour and therefore, the appellant could not have been driving his vehicle i.e. truck bearing no. DL1G 9074 at a fast speed and in a rash and negligent manner. It is contended that the ld. Trial Court failed to note the purport and impact of the Mechanical Inspection Reports. It is urged that as per evidence, the offending vehicle had hit the victim's scooter on the back side from its front right side. Thus, the victim's vehicle i.e. scooter should have been found in front of the truck and not behind it. The attention of the Court is drawn to the site plan. 2.1. It is further contended that the evidence reveals that complainant was carrying a Card Board Box on the foot rest of the Scooter and that they were also carrying a Bag on it. It is submitted that as per the defence, the Scooter rider lost balance due to which it slipped resulting into the Ttruck running over Result: Appeal dismissed Page 3 of 14 Ibrahim Vs State CA No.64/16 the deceased namely Happy Bhalla, the sister of complainant Dr. Sanjay Bhalla and also received injuries during the accident.
2.2. It is lastly contended that the award of compensation is not in sync with the ratio of judgment in case titled Satya Prakash Vs State (Crl. Revision No. 338/2009) as the Victim Impact Report (VIR) does not consider source of income of the appellant and even the impugned order on sentence has failed to consider the said point.
3. Notice of appeal was issued to the State through Ld. Prosecutor and Trial Court record was called for. Submissions made by the appellant's counsel Sh Narender Mukhi and Sh B.B. Bhasin, Ld. Addl. Prosecutor for State have been heard. Record has been perused carefully.
4. Pending decision on appeal, sentence of Ld. Trial Court was suspended vide order dated 6.5.2014. The appellant continues to be on bail.
5. The incident occurred at 3 p.m on 31.1.1999 near Red Light of Shadi Pur Depot behind P.S Patel Nagar. The appellant was said to be driving the offending vehicle i.e. Truck bearing no.
Result: Appeal dismissed Page 4 of 14 Ibrahim Vs State CA No.64/16DL1G9074 in a rash and negligent manner and as per the statement of Dr. Sanjay Bhalla/PW2 (ExPW2/A), the offending vehicle was driven at a very fast speed and in rash as well as negligent manner. PW 2 was riding his scooter bearing no. DL 4SF 7406 on which his sister/deceased was pillion rider. When the victim was crossing the Red Light, the offending vehicle hit his scooter on the 'back side' from its 'right front portion'. As a result, the victim Happy Bhalla fell down on the road and the right rear wheel of the offending vehicle ran over her. Due to fall of the scooter, PW 2 also received injuries on his right leg and other parts of the body which are said to be 'simple' in nature as per his MLC ExPW4/A. The victim Happy Bhalla was brought dead to the Casualty of RML Hospital vide MLC ExPW4/B.
6. The Court has gone through the testimony of crucial witness of prosecution i.e. PW 2. When compared in the light of the site plan (ExPW3/A), it can be observed that Point A therein is the spot where the victim's scooter was found lying. A little ahead of it is Point B which shows the location of the offending Result: Appeal dismissed Page 5 of 14 Ibrahim Vs State CA No.64/16 vehicle. Both the points are just adjacent to the Signal Crossing on Main Patel Road leading towards Shadipur Flyover from East to West. The offending vehicle was driven from South to North i.e. on Naraina Road and from the Red Light crossing, it took a left turn at Main Patel Road from Shadipur Flyover. The victim was driving from East to West from Main Patel Road towards Shadipur Flyover. It is in the victim's statement that on impact, the two wheeler fell down on the road and the Truck ran over his sister. It is therefore a strong possibility which has been driven home as proved in the statement of PW2 and also the IO/PW3 ASI Maharaj Singh that not only the IO but also PW 8 Ct. Gokul Narayan who had responded to DD No. 19A had found the vehicle in the position as described in the site plan (ExPW3/A). Thus, there is no force in the contention that the offending vehicle ought to have been behind the victim's scooter.
7. It is in evidence that the appellant had fled away from the spot leaving behind his Truck. The reason for doing so has not come forth on record and this conduct of the appellant becomes questionable if his defence is to the effect that victim's scooter Result: Appeal dismissed Page 6 of 14 Ibrahim Vs State CA No.64/16 got disbalanced due to the fact that victims were carrying a Card Board Box as well as a Bag on the Scooter. As a matter of fact, this specific defence has not been taken at all by the appellant in his statement recorded under Section 313 Cr.P.C. The defence has been gauzed only from the appeal and also from the cross examination of PW 2 who has been suggested that he lost balance of the scooter as he and his sister were carrying luggage/goods on the scooter. The defence is improbable in view of the fact that the accident occurred at about 100 feet ahead of the Traffic Light Crossing during afternoon hours and about 10 to 15 vehicles were plying on the road at that time. The victim had stopped on the Red Light signal and had started to move when traffic light turned Green. The truck was coming from his back side and of course, he could not have seen it. But the cross examination of PW 2 establishes that he could not say about the speed of the Truck at which it was being driven. "Speed Factor" can not be the sole factor as the prosecution under Section 279 IPC is required to prove that the Truck was being driven at public way in a manner so rash and negligent that it could result in hurt or Result: Appeal dismissed Page 7 of 14 Ibrahim Vs State CA No.64/16 injury to any other person and endanger the human life.
8. There being no occular evidence of rashness or negligence, the Court has to fall back upon the oral evidence visavis the documentary evidence.
9. The very fact that the scooter was hit from behind establishes the elements of rashness and also criminal negligence on the part of the driver of the offending vehicle. That this appellant was the person who was driving the offending vehicle has been proven by the prosecution in the testimony of Kanti Devi (PW6 wrongly mentioned as PW5). She had received Notice U/s 133 of M.V Act from the IO and her husband had given a reply to it. This appellant has denied in his statement U/s 313 Cr.P.C that he was driving the offending vehicle. However, when the stage for judicial TIP came, he refused to take part in it on the specific ground that he had been seen by the members of the public present on the spot. There is no denial to that effect by the defence. These two facts established that it was the appellant who was driving the offending vehicle. Moreover when notice in accordance of Section 251 Cr.P.C for commission of offence complained of was served upon him, Result: Appeal dismissed Page 8 of 14 Ibrahim Vs State CA No.64/16 the appellant took a plea that he is not guilty. That he was driving the Truck on the date of the accident. That his Truck had not struck against the scooter of the complainant. He further pleaded that his Truck had just crossed the Red Light and Ms. Happy Bhalla had herself fallen from the scooter and came under the back side (right under side) wheel of his Truck. He claimed that the complainant was carrying much luggage on the scooter.
10.Perusal of Mechanical Inspection Report of the victim's vehicle i.e. Scooter (ExPW7/B) and that of the offending vehicle i.e. Truck (ExPW7/A) does lend credence to the oral testimony of PW2 to the effect that accident did take place. The Mechanical Inspector Subhash Kumar (PW 7, wrongly mentioned as PW6) proved the above reports. He had found (1) 'Fresh damage, (2) front bumper was scratched on its left side, (3) the vehicle was fit for road test. On examining the victim's vehicle i.e. two wheeler scooter, PW7 found 'fresh damage' and Dent on body and also observed that Rear Stepney Bracket was 'bent'.
11. If it was right side of the truck hitting the scooter on the back Result: Appeal dismissed Page 9 of 14 Ibrahim Vs State CA No.64/16 side, there ought to have been damages on the right side of the truck which are not observed in the Mechanical Inspection Report. However, fresh damage was found on the truck. The scratch on the left side of its bumper may have been an old scratch and therefore, this anomaly does not specifically establish that the impact did not occur due to the collusion of two vehicles in the manner stated by PW7. The fact remains that PW 7 did find Rear Stepney Bracket of the vehicle in 'Bent Condition' and that its body was 'dented'.
12.It is not the case of the defence that the accident did not take place. It was evident from the suggestion given to PW2 regarding the contributory negligence on the part of the victim of having carried luggage on their Scooter.
13.As a matter of fact, the concept of contributory negligence is foreign to Section 279 & 304A IPC.
14.The fact that vehicles plying on the road were at a speed of almost 20 km. Per hour establishes that the offending vehicle ought to have been at a greater speed resulting into the impact and therefore, establishing the fact that the appellant was rash as well as negligent in plying the offending vehicle.
Result: Appeal dismissed Page 10 of 14 Ibrahim Vs State CA No.64/1615.Though PW 2 has specified that he was not carrying his driving license at the time of accident but he did clarify that he was having a valid driving license. No counter suggestion was given to this voluntary assertion made by the appellant.
16. As a result of the above accident, Happy Bhalla lost her life and PW 2 sustained simple injuries. These facts have been noted categorically by the Ld. Trial Court. The post mortem report of Happy Bhalla established that she died due to ante mortem injuries caused by blunt force impact and due to being run over. It is vehicular accident and death was due to 'cranio cerebral injury'. The appellant has not raised any plea regarding objection on proof of MLC by PW 4/Record clerk from the concerned hospital. He has categorically submitted that the concerned doctor has left the hospital since long time and no address is available on record. He identified the signatures of Dr. Ratna Kumar on ExPW4/A as well as on ExPW4/B respectively.
17.The prosecution's case has been therefore, proven against the appellant beyond all reasonable doubts.
18.There is no error of finding or misappreciation of evidence by Result: Appeal dismissed Page 11 of 14 Ibrahim Vs State CA No.64/16 the Ld. Trial Court in the impugned judgment. It is not liable to be interfered with.
19.No arguments were made by the appellant regarding the order on sentence. The only plea made as evident from the appeal is regarding the award of compensation which is said to be 'excessive'. The Court has gone through the order on the point of sentence and finds that the Ld. Trial Court had placed reliance on Satya Prakash's case (Supra) and has drawn a distinction between Section 357(3) as well as 357A Cr.P.C visavis this appeal. It considered the VIR as well as the mitigating circumstances. It took note of the circumstances of the facts. It took note of the fact that PW 2 had not received any MACT compensation whereas the relatives of the deceased Happy Bhalla had received a compensation of Rs.2.50 lacs. It appears from the order that no plea was raised by the appellant before Ld. Trial Court regarding his incapability of paying the compensation amount. In the absence of that plea, raising this plea at the stage of appeal will not support the appellant. Nevertheless, compensation awarded has been already restricted to a 'reasonable and conventional compensation'. I am Result: Appeal dismissed Page 12 of 14 Ibrahim Vs State CA No.64/16 of the considered view that even the sentence part is not to be interfered with. The Ld. Trial Court had already refrained from awarding maximum sentences provided. As a result, the present appeal stands dismissed.
20. The appellant be taken into custody to undergo the sentence imposed by the Ld. Trial Court.
21.Copy of this judgment be sent to the Ld. Trial Court/its successor Court for intimation. One copy be also provided to the appellant.
22.After necessary compliance, file of appeal be consigned to record room.
ANNOUNCED IN THE OPEN ( MANISH YADUVANSHI ) COURT ON : 05.01.2018. ASJ05 (West), THC, Delhi.
Case No. 54398/16 CA No. 64/1605.01.2018 At 2.30 p.m. Present : Sh Om Prakash, proxy counsel for Sh Narender Mukhi, ld counsel for appellant alongwith appellant in person .
Sh R.K Tanwar, Ld. Substitue Addl. PP for the State Vide separate judgment of even date, the appeal stands dismissed. The appellant be taken into custody to undergo the sentence imposed by the Ld. Trial Court. His P/B, S/B discharged.
Result: Appeal dismissed Page 13 of 14 Ibrahim Vs State CA No.64/16Conviction warrant of appellant be prepared and be sent to Supdt. Tihar Jail for necessary compliance.
Copy of the judgment be sent to the Ld. Trial Court/its successor Court for intimation alongwith trial Court record. One copy be also provided to the appellant.
After necessary compliance, file of appeal be consigned to record room.
(Manish Yaduvanshi) ASJ05(West)/THC 05.01.2018 Result: Appeal dismissed Page 14 of 14