Delhi District Court
State vs . Bhupender Singh on 29 August, 2014
IN THE COURT OF Ms. CHETNA SINGH:MM-02(SOUTH DISTRICT)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Bhupender Singh
FIR No. 1067/05
U/s : 279/337 IPC
P.S. : Malviya Nagar
Date of institution of case : 21.08.2006
Date on which case reserved for judgment : 29.08.2014
Date of judgment : 29.08.2014
JUDGMENT
1.FIR No. of the case : 1067/05
2.Date of the Commission : 01.12.2005
of the offence
3.Name of the accused : Bhupender Singh S/o Sh. Sukhbir
: Singh R/o H. No. C-1/218, Aaya Nagar
: Gaon, New Delhi.
4.Name of the complainant : Sh. Kailash S/o Sh. Jagdish Prasad
: R/o H. No. A-412, Dakshinpuri, New
: Delhi.
5.Offence complained of : 279/337 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Convicted u/s 279/337 IPC
FIR No. 1067/05 State Vs Bhupender Singh Pages 1/14
BRIEF FACTS
1. The story of the prosecution is that on 01.12.2005 at about 8.30am at Press Enclave Road in front of Sheikh Sarai Authority, New Delhi, within the jurisdiction of PS Malviya Nagar accused Bhupender Singh was found driving a vehicle i.e. Car (Qualis) bearing registration no. HR-55AT-3252 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving the above said manner accused hit against scooter bearing no. DL-3ST-5131 belonging to the complainant and caused simple hurt to Maina Devi (mother of the complainant) and thereby accused committed an offence punishable u/s 279/337 IPC.
2. On the basis of the said allegations and on the basis of the complaint of the complainant, an FIR bearing number 1067/05 under section 279/337 IPC was lodged at Police Station Malviya Nagar.
3. After investigation, charge-sheet under section 173 Cr.P.C was filed on 21.08.2006.
4. On the basis of the charge-sheet, charge for the offences punishable under section 279/337 IPC was framed against the accused person namely Bhupender Singh and read out to the said accused person, to which he pleaded not guilty and claimed trial on 16.01.2010.
APPRECIATION OF EVIDENCE
5. In order to prove the above said allegations against the accused Bhupender Singh, prosecution has examined the following witnesses.
FIR No. 1067/05 State Vs Bhupender Singh Pages 2/14
6. PW-1 W/SI Sushma Saxena who is a formal witness was examined on 18.07.2011 and proved the FIR Ex. PW-1/A and endorsement on the basis of rukka Ex. PW-1/B (OSR).
7. This witness was not cross examined by the accused despite opportunity given.
8. PW-2 Kailash being complainant was examined on 19.02.2013 and deposed that on 01.12.2005 he along with his mother and nephew Nikhil was going towards AIIMS Hospital on his scooter bearing no. DL-3ST-5131 and at about 8.30pm when they reached at Press Enclave Road in front of Sheikh Sarai Authority, one Qualis bearing no. HR-AT-3252 come from behind and hit against his scooter due to which he received injury and his mother also received injury on her head. He further deposed that at the time of accident the offending vehicle was being driven by accused in a zig zag manner and at a high speed of 80-90 KMPH. He further deposed that he called his brother from home and he took his mother towards AIIMS Hospital and his statement was recorded by police at AIIMS Hospital from point X-1 to X-2 which is Ex. PW-2/A bearing his signature at point A. He further deposed that the accused ran away from the spot after the accident and thereafter later on accused was apprehended by the police and he was arrested in his presence and his personal search was conducted vide memos Ex. PW-2/B and C both bearing his signatures at point A. He further deposed that the identity of the offending vehicle was not disputed by accused. Hence, the production of the same was dispensed with.
9. This witness was not cross examined by the accused despite opportunity given.
FIR No. 1067/05 State Vs Bhupender Singh Pages 3/14
10. PW-3 Ms Maina Devi being injured was examined on 19.02.2013 and deposed that on 01.12.2005 she along with her son Kailash and grand son Nikhil was going towards AIIMS Hospital on scooter bearing no. DL-3ST-5131 which was being driven by her son Kailash and at about 8.30pm when they reached at Press Enclave Road in front of Sheikh Sarai Authority, one Qualis bearing no. HR-AT-3252 come from behind and hit against their scooter due to which they fell down on the road and she received injury on her head and hands and thereafter she got unconscious and when she regained his consciousness, she found herself at home.
11. This witness was also not cross examined by the accused despite opportunity given.
12. PW-4 ASI Rajender Singh being IO was examined on 24.01.2014 and deposed that on 01.12.2005 he was posted as HC at PS Malviya Nagar and on that day on receipt of DD no. 4 at PP Pushp Vihar, he along with Ct. Attar Singh went to Press Enclave Road in front of Sheikh Sarai Authority where he saw that one Qualis bearing no. HR-55AT-3252 and scooter bearing no. DL-3ST-5131 were lying in accidental condition and thereafter, he came to know that the injured has already been taken to AIIMS Hospital on private vehicle. He further deposed that leaving Ct. Attar Singh at the spot, he went to AIIMS hospital where injured Maina Devi found admitted in AIIMS hospital and she was declared fit for statement by doctor but she could not give her statement due to serious pain. He further deposed that he recorded the statement of driver of the scooter namely Kailash as complaint Ex. PW-1/A attested by him at point A. He further deposed that he collected MLC and prepared rukka which is Ex. PW-4/A bearing his signature at point X and driver of offending vehicle namely Bhupender Singh was also found in hospital to whom complainant Kailash identified. He further deposed that FIR No. 1067/05 State Vs Bhupender Singh Pages 4/14 thereafter, he along with complainant and accused returned back at the spot and sent Ct. Attar Singh with rukka to PS for registration of FIR and he prepared site plan at the instance of complainant which is Ex. PW-4/B bearing his signature at point X and Ct. Attar Singh returned back at the spot with original rukka and copy of FIR and same were handed over to him. Aforesaid car and scooter were seized vide memos Ex. PW-4/C and D both bearing his signature at point X. Accused Bhupender Singh present in the court was arrested and his personal search was conducted vide memos already Ex. PW-2/C and Ex. PW-2/D both bearing his signature at point X. Case property was deposited in the malkhana and accused was released on police bail. He further deposed that he recorded the statement of injured and Mechanical inspection of both the vehicle were got inspected and report thereof were collected. He further deposed that after completion of investigation he prepared charge sheet and filed before the court through SHO.
13. This witness was also not cross examined by the accused despite opportunity given.
14. PW-5 Ct. Attar Singh was examined on 19.03.2014 and deposed that on 01.12.2005 he was posted at PS Malviya Nagar and on that day he was on emergency duty along with HC Rajender at PP, Pushp Vihar. He further deposed that at about 8.30am on receipt of DD no. 4 at PP Pushp Vihar, he along with HC Rajender went to Press Enclave Road in front of Sheikh Sarai Authority where they saw that one Qualis bearing no. HR-55AT-3252 and scooter bearing no. DL-3ST-5131 were lying in accidental condition and thereafter, they came to know that the injured has already been taken to AIIMS Hospital. He further deposed that IO left him at the spot and went to AIIMS hospital and after some time IO returned to the spot along with the accused and IO handed over me one tehrir for registration of FIR. He FIR No. 1067/05 State Vs Bhupender Singh Pages 5/14 further deposed that he went to PS and got the FIR registered and after some time he came back at the spot along with original rukka and copy of FIR and same were handed over to the IO. Accused Bhupender Singh present in the court was arrested and his personal search was conducted vide memos already Ex. PW-2/C and Ex. PW-2/D both bearing his signature at point X. Case property was seized vide memo Ex. PW-4/C and D respectively and accused was released on police bail at the spot. He further deposed that they left for the PS and case property was deposited in the malkhana and IO recorded his statement. He further identified the accused present in the court.
15. This witness was not cross examined by the accused despite opportunity given.
16. Further, Mechanical Inspection which is Ex. P-6, MLCs bearing No. 159815/05 and 151815/05 dated 01.12.2005 which are Ex. P-7 and P-8 have not been disputed by the accused as he had admitted the said documents on 19.03.2014 in his statement u/s 294 Cr.P.C. Accordingly, same were dispensed with being admitted u/s 294 Cr.P.C.
17. As all witnesses were examined by the prosecution, PE was ordered to be closed on 19.03.2014. Statement of accused u/s 313 Cr.P.C. was recorded on 15.05.2014 in which he stated that he has been falsely implicated in this case and he does not want to lead any defence evidence.
18. Final arguments were advanced by Ld. APP for the state and by Ld. Defence counsel. Heard.
Reasons for Decision
19. In the present matter prosecution has examined five witnesses in total to prove its allegations qua accused that on the date and time as earlier FIR No. 1067/05 State Vs Bhupender Singh Pages 6/14 mentioned, the accused Bhupender Singh was driving his vehicle i.e. Qualis car bearing no. HR-55AT-3252 on the public way in a rash and negligent manner and hit against scooter bearing no. DL-3ST-5131 and thereby causing simple injuries to the Maina Devi and thereby committing offences punishable u/s 279/337 IPC.
20. Further, before appreciation of evidence, it is necessary to state the essential ingredients of section 279 IPC. Same are as follows:
(1)That the accident actually took place. (2)That the accident took place due to rash and negligent driving.
(3)That the accused was the person who was driving the vehicle at the relevant time.
The words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Blacks Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by H.L.A.Hart in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently.
"[A] careful consideration is needed of the difference between the meaning of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point FIR No. 1067/05 State Vs Bhupender Singh Pages 7/14 of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The word 'negligently', both in legal and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash'as doing something that may not be sensible without first thinking about the possible results.
Elaborating further, in State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression " rashness " and " negligence "
held as follows :
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowl- edge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negli- gence is the gross and culpable neglect or failure to exer- cise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual."
8. The distinction has been very aptly pointed out by Holloway, J. in these words :
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often FIR No. 1067/05 State Vs Bhupender Singh Pages 8/14 with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection." (See In Re : Nidamorti Nagabhusanam 7 Mad. HCR 119)".
21. Prosecution has examined five witnesses in total. Charge u/s 279/337 IPC was framed qua accused Bhpender Singh on 16.01.2010. Complainant has been examined as PW-2 Kailash who deposed that on the date of incident i.e. 01.12.2005 he along with his mother and nephew Nikhil were going towards AIIMS Hospital on his scooter bearing no. DL-3ST-5131 and at about 8.30am when he reached the spot i.e. Press Enclave Road in front of Sheikh Sarai Authority, one Qualis bearing no. HR-AT-3252 came from behind hit against his scooter due to which they fell down on the road and his mother received injury on her head. He further deposed that at the time of accident the offending vehicle was being driven by accused in a zig zag manner and at a high speed of 80-90 KMPH. He further deposed that her was taken to the AIIMS Hospital by him and after the accident the driver of the offending vehicle who was correctly identified by him ran away from the spot. He further identified his statement Ex. PW-3/A bearing his signature at point A.
22. This witness was not cross examined by the accused despite opportunity given. Apart from this witness, PW-2 Maina Devi was examined by the prosecution in support of its version who also deposed that on the date FIR No. 1067/05 State Vs Bhupender Singh Pages 9/14 of incident i.e. 01.12.2005 she along with her son Kailash and grand son Nikhil was going towards AIIMS Hospital on scooter bearing no. DL-3ST-5131 and at about 8.30pm when they reached at Press Enclave Road in front of Sheikh Sarai Authority, one Qualis bearing no. HR-AT-3252 come from behind and hit against their scooter due to which they fell down on the road and she received injury on her head and hands.
23. This witness was also not cross examined by the accused despite opportunity given. Apart from these two witnesses, prosecution has examined PW-1 W/SI Sushma Saxena was examined as the witness to the registration of FIR who proved the FIR Ex. PW-1/A and rukka Ex. PW-1/B (OSR).
24. Other witnesses examined by the prosecution are PW-4 ASI Rajender Singh and PW-5 Ct. Attar Singh who were with each other during the course of investigation and during the preparation of various documents being Rukka, seizure memo of the vehicles, site plan, arrest memo or personal search memo of the accused. Their depositions are not repeated here for the purpose of brevity. However, they have also deposed consistently along with public witnesses. Both the public witnesses have deposed that the offending vehicle hit from behind as a result of which the scooter of the complainant fell down and the mother of the complainant received simple injury. The identity of the accused has also been established.
25. Apart from material witnesses corroborating each other in their examination in chief, the accused has also given his statement u/s 294 Cr.P.C. wherein he has admitted the Mechanical Inspection which is Ex. P-6, MLCs bearing No. 159815/05 and 151815/05 dated 01.12.2005 which are Ex. P-7 and P-8. In "Shabbir Mohammad Vs State of Rajasthan" (FB) (1996 Cr.L.J. 1015) it has been held that :
FIR No. 1067/05 State Vs Bhupender Singh Pages 10/14 "If the genuineness of any document produced by the prosecution or the accused is admitted by opposite party, when called upon to do so under sub-setion (3) of Section 294 of the Code, it can be read by the court as a substantive piece of evidence for deciding the issue pending before it with its probative value being the same as it would have had it had been proved by the party concerned on its genuineness having disputed by the opposite party when called upon to do so under sub-section (1) of Section 294 of the Code".
Further in "Boraiah @ Shekar Vs State" [2003(2) R.C.R. (Criminal) 160] it has been held that :
"Section 294 Cr.P.C. dispenses with proof of every document when it becomes formal on its genuineness not being disputed. Sub-section (3) of Section 294 Cr.P.C. covers postmortem reports and every other document of which genuineness is not disputed. Once the requirements of Section 294 are fulfilled, there could be no difficulty in treating such document as substantive evidence in the case. In fact after indication of no dispute as to the genuineness of a document, proof of document is reduced to a sheer empty formality.
Such a document may be read in evidence under sub-section (3) of Section 294. Neither the signature nor the correctness of its contents need be proved by the prosecution or the accused by examining its signatory as it is admitted to be true or correct. The phrase 'read in evidence' means read as substantive evidence, which is the evidence adduced to prove a fact in issue as opposed to the evidence used to discredit a witness or to corroborate his testimony".
Also in "Akhtar Vs State of Uttranchal" [SC 2009(2) AICLR745] it has been held that :
"If the accused had admitted the injury reports and FIR No. 1067/05 State Vs Bhupender Singh Pages 11/14 postmortem reports under Section 294 Cr.P.C. He cannot later contend that the said documents cannot be read into substantial evidence due to non- examination of doctors, and the said document shall be read as valid and substantive evidence under Section 294 Cr.P.C."
26. Apart from the admission of accused of the MLC u/s 294 Cr.P.C., there is also a statement of accused recorded u/s 313 Cr.P.C. r/w section 281 Cr.P.C. in which he has admitted that the accident took place on the date and time mentioned above and he was driving the vehicle bearing No. HR-55AT-3252 at Press Enclave Road in front of Sheikh Sarai Authority. However, the scooter of the complainant got struck in the leg guard being the Qualis and as a result of the same the scooter fell down and as a result of the same the mother of the complainant received injuries.
27. Thus, it is clear that the factum of incident and the fact that the accused was driving the offending vehicle and the scooter of the complainant got struck in the leg guard being the Qualis and as a result of the same the scooter fell down and as a result of the same the mother of the complainant received injuries has been admitted by the accused. It has been settled by the various higher courts that admission under section 313 Cr.P.C. can be taken to be a relevant fact in deciding the fate of the accused.
This question has been decided by the Hon'ble High Court in case titled :
Janki Dass Vs. State 1995CriLJ2175, (1994)ILR Delhi392 In this murder reference the only question of law that arose for consideration was as to whether a admission made under section 313 of the Cr.P.C. can form the basis of conviction. The Court Held that : "The FIR No. 1067/05 State Vs Bhupender Singh Pages 12/14 underlying object behind Section 313 is to give an opportunity to the accused to be heard not only on what is prima facie proved against him but on a very circumstance appearing in evidence against him so that he is not condemned unheard. It enables the accused to explain the circumstances appearing against him in evidence. The answers given by an accused may be taken into consideration in judging not only his innocence but also judging his guilt. There is nothing in the language of Section 313 to suggest that answers given by an accused admitting the evidence or circumstances proved against him, have to be ignored and have not to be taken into consideration for judging his guilt.
The weight to be attached to the statement of an accused made under Section 313 of the Code though cannot be placed in a straight jacket since it has to vary according to the circumstances of each case, yet the legal position seems to be clear that such statements can be taken into consideration in judging not only the innocence but guilt of the accused and admission made in a statement under Section 313 of the Code can be made the basis of conviction".
28. It is clear from the testimony of the witnesses, MLC on record which has been admitted by the accused and the statement of the accused recorded u/s 313 Cr.P.C. that the mother of the complainant namely Maina Devi received injury on account of hitting from behind by the offending vehicle of the accused and hence, he is required to be convicted u/s 279/337 IPC and accused Bhupender Singh is accordingly, convicted for offences punishable under section 279/337 IPC.
FIR No. 1067/05 State Vs Bhupender Singh Pages 13/14 Be listed for arguments on sentence on 06.09.2014 at 2.00pm.
ANNOUNCED IN THE COURT (CHETNA SINGH) ON 29.08.2014 MM-02(SD)/29.08.2014
Certified that this judgment contains 14 pages and each page bears my signatures.
(CHETNA SINGH) MM-02(SD)/29.08.2014 FIR No. 1067/05 State Vs Bhupender Singh Pages 14/14 STATE Vs. Bhupender Singh FIR No. 1067/05 U/s : 279/337 IPC P.S. : Malviya Nagar 08.09.2014 (ORDER ON SENTENCE) Present: Ld. APP for the state.
Convict Bhupender Singh along with Ld. Counsel.
The accused has been convicted for the offence under section 279/337 IPC.
Arguments on sentence heard from both sides.
Ld. Counsel for the convict Bhupender Singh has requested for the lenient view to be taken against him and further submitted that convict is the sole bread earner of his family. He further requests for releasing the convict on probation of good conduct.
Ld. APP for the State on the other hand has requested to award severe punishment to the convict considering the allegations against him.
Keeping in view of the facts and circumstances, the accused Bhupender Singh is released on Probation of good conduct u/s 4 of Probation of Offenders Act, 1958 however, he is directed to deposit compensation of Rs. 10,000/ u/s 5 (1)(a) of the Probation of Offenders Act, 1958 to be paid to injured Maina Devi.
Today injured Maina Devi is absent despite service. Compensation of FIR No. 1067/05 State Vs Bhupender Singh Pages 15/14 Rs. 10,000/ has been deposited by accused vide receipt no. 894264 in the treasury.
Injured Maina Devi is at liberty to withdraw the same as and when she appears.
2 In view of the same, surety is discharged. Endorsement if any, be cancelled. Original documents if any, be returned to the surety.
Copy of the judgment and order on sentence be given to convict free of cost.
File be consigned to record room after necessary compliance.
(CHETNA SINGH) MM02:SD/Saket Courts 08.09.2014 FIR No. 1067/05 State Vs Bhupender Singh Pages 16/14