Delhi District Court
State vs . Virender Kumar on 16 February, 2013
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Virender Kumar
FIR NO: 320/02
P. S. Ambedkar Nagar
U/s 279/304 A IPC
Unique ID no. 02403R0068942005
JUDGMENT
Sl. No. of the case and : 510/2 (15.10.2010) Date of its institution : 22.3.2003 Name of the complainant : Sh. Raj Kumar Sahoo Date of Commission of offence : 27.7.2002 Name of the accused : Virender Kumar Offence complained of : Section 279/304 A IPC Plea of accused : Not Guilty Case reserved for orders : 22.12.2012 Final Order : Convicted (279/304 A IPC) Date of Judgment : 16.2.2013 BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the prosecution of the accused Virender Kumar pursuant to a charge sheet filed by the Police Station Ambedkar Nagar under section 279/304 A Indian Penal Code, 1860 (for short IPC) subsequent to the investigation carried out by them in State Vs. Virender Kumar FIR no. 320/02 FIR no. 320/02.
2. The prosecution case against the accused is this: On 27.7.2002 at about 3.40 pm, Dr. Ambedkar Nagar Marg, near Pushpa Bhawan, Ambedkar Nagar, New Delhi, accused was found driving vehicle no. DL 2CJ 7091 in a rash and negligent manner and caused the death of Bhawna Kohli, thus committed an offence u/s 279/304 A IPC.
3. On consummation of investigation and other formalities, charge sheet was submitted against the accused and the accused was indicted on charges under section 279/304 A IPC. He pleaded not guilty and claimed trial.
4. The prosecution, to prove above charges against the accused, tendered oral as well as documentary evidence. In all, six witnesses were examined. PW 1 Sh. Guneet Kohli and PW 3 Ms. Mallika Kohli deposed on the same lines that on 27.7.02, while they alongwith their sister Bhawna and grand mother Mrs. Kawaljeet Kohli were going to Radisson Hotel from their house by their Esteem car no. DL 3CT 0488 and when they reached near CNG Petrol Pump Pushpa Bhawan, a white maruti van bearing no. 0791 came in a rash and negligent manner from wrong side breaking the divider and hit their car to its driver side. Their said car was being driven by their driver Raj Kumar. The said accident occurred at about 3.45 pm. Their younger sister Bhawna Kohli sustained head injuries and their car was also damaged. Since their sister was in critical condition, she was immediately taken firstly to Escort Hospital then to Apollo Hospital leaving behind their grandmother and other sister Mallika. One public person drove their said accidented vehicle to the said hospital for their sister's treatment. In the hospital, they came to know the name of the driver as Virender Singh. They were cross examined by Ld. Counsel for accused.
5. PW 2 is HC Mahabir Singh who was the duty officer and proved the FIR as Ex.PW2/A upon a rukka.
6. PW 4 is Dr. Shalini Girdhar who proved the post mortem of the deceased as State Vs. Virender Kumar FIR no. 320/02 Ex.PW4/A. In the post mortem report it is opined that the death of the deceased was caused due to head injury caused by blunt force which could be possible in road traffic accident and all the injuries are antemortem in nature. She was cross examined by Ld. Counsel for accused.
7. PW 5 SI Nand Lal Dua proved the mechanical inspection of the vehicle as Ex.PW5/A. He was cross examined by Ld. Counsel for accused.
8. PW 6 HC Rambir Singh proved his investigation alongwith certain documents like application for recording statement of injured as Ex.PW6/A, endorsement as Ex.PW6/B, arrest and personal search memo as Ex.PW6/C and Ex.PW6/D, seizure memo of D/L as Ex.PW6/E, seizure memo of vehicle as Ex.PW6/F, site plan as Ex.PW6/H. He was cross examined by Ld. Counsel for accused.
9. The statement of the accused under Section 281 of the Criminal Procedure Code, 1973 (for short, `the Code') was recorded. He disavowed all the allegations against him. Further, he chose to lead defence evidence.
10. The accused has examined himself in defence evidence u/s 315 of the Code wherein he deposed that on 27.7.2002, at around 3 pm he alongwith his father were going from Khanpur to Chirag Delhi in his Maruti van no. DL 2CJ 7091. When they reached at Pushpa Bhawan, number of cows came in the middle of the road in front of his car and to avoid hitting the cows, he took right turn and applied brake but his car hit the divider and jumped the divider. His car was standing in such a position that half was on the divider and half was on the road from which traffic was coming from the Chirag Delhi side. He and his father got down. He was standing aside of the road and his father went to bring some help or a mechanic. In the meantime, an Esteem car no. 0488 came from the side of Chirag Delhi in a rash and negligent manner and in a high speed and hit their Maruti, when it was in standing position. The Esteem Car damaged their car from driver side. Somebody called the police and State Vs. Virender Kumar FIR no. 320/02 police took him to the police station and falsely implicated him in the present case. The Esteem car hit his stationary van but police did not hear him and implicated him in the present case.
11. DW 2 is Sh. Ram Parshad also deposed on the similar lines that on 27.7.2002, at around 3 pm he alongwith his son were going from Khanpur to Chirag Delhi in Maruti van no. DL 2CJ 7091. When they reached at Pushpa Bhawan, number of cows came in the middle of the road in front of their car and to avoid hitting the cows, his son took right turn and applied brake but their car hit the divider and jumped the divider. Their car was standing in such a position that half was on the divider and half was on the road from which traffic was coming from the Chirag Delhi side. He and his son got down. He left his son standing aside of the road and went to bring some help or a mechanic. When he came back alongwith the mechanic his son was taken to the police station and was falsely implicated in the present case. He was told by his son that when their car was in stationary position, an Esteem car hit their van at the driver's side. Both the accused and DW 2 were cross examined by Ld. APP for the State. Thereafter, matter was fixed for final arguments.
12. I have heard the learned Assistant Public Prosecutor and the learned Advocate for the accused at length and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt. PW 1 and PW 3 have categorically pointed out the finger of guilt at the accused by explaining the circumstances in which the rashness of the accused led to the accident.
13. Per contra, learned defence counsel has canvassed that rashness and negligence has not been conclusively proved as is clear from the testimony of the accused that number of cows came in the middle of the road which made him turn his vehicle towards right side consequent to which the vehicle jumped the divider as a State Vs. Virender Kumar FIR no. 320/02 result of which half of the vehicle came to stand on the other side of the road. He has further averred that there are certain vital discrepancies in the testimony of the prosecution witnesses which he has pointed out during his arguments. The accused deserves acquittal in this case.
14. I have bestowed my thoughtful considerations to the rival submissions made before me. In order to bring accused to justice, prosecution has to prove the necessary ingredients of the offence under section 279/304 A of IPC. Firstly, I would embark upon Section 279 of IPC which reads as under :
"Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or both".
Section 304 A reads as under :
Causing death by negligence Whoever caused the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
15. Both the sections above has one element in common and that is rash or negligent driving. Besides this, prosecution has to prove that rash or negligent driving of the accused has led to the death of victim Bhawna Kohli.
16. At the very outset, it is made clear that the death of victim Bhawna Kohli State Vs. Virender Kumar FIR no. 320/02 has not been disputed by the accused. PW 4 Dr. Shalini Girdhar from AIIMS hospital has also proved the post mortem report Ex.PW4/A of the deceased Bhawna Kohli, which says that cause of death in this case is coma due to head injury caused by blunt forcewhich could be possible in road traffic accident.
17. In order to establish the guilt of the accused, it is obligator upon the prosecution to prove that accused was driving maruti van no. DL 2CJ 7091 (for short "offending vehicle") on 27.7.2002 at around 3.40 pm at Dr. Ambedkar Nagar Marg near Pushpa Bhawan in a rash and negligent manner and that while driving the same, he banged his aforesaid vehicle in an Esteem car bearing no. DL 3CT 0488 (for short "
esteem car") and caused the death of Bhawna Kohli. In so far as the first aspect of the case is concerned, accused has not disputed the fact that he was driving the offending vehicle at the given time and place. PW 3 has also identified the accused to be driver of the offending vehicle. No suggestion whatsoever has been put to any of the eye witnesses that accused was not driving the offending vehicle at the given time and place. Therefore, it stands proved that accused was driving the offending vehicle on 27.7.02 at about 3.40 pm at the place of the accident i.e Dr. Ambedkar Nagar near Pushpa Bhawan.
18. The issue in the present case has now tapered down to whether the accused was driving the offending vehicle in a rash or negligent manner and by that act has rammed his vehicle in the Esteem car and caused the death of Bhawna Kohli. It is desirable to note that the driver of esteem car Sh. Rajkumar, though cited a witness, could not be examined in the court as he was not found at the given address. Hence to prove the above fact, prosecution has rested its case on the testimony of PW 1 and PW 3 who were stated to be sitting in that Esteem car. From the testimony of PW 1 and PW 3, it transpired that on 27.7.02 they alongwith Bhawna and their grand mother Kawaljeet Kaur were going to Radisson Hotel and when they reached near CNG Petrol State Vs. Virender Kumar FIR no. 320/02 Pump, Pushpa Bhawan, the offending vehicle came in a rash and negligent manner from the wrong side by breaking the divider and hit their car in its driver side. The said Maruti Esteem car was being driven by their driver Raj Kumar. In the accident, the younger sister Bhawna Kolhi received head injuries who was then firstly removed to Escorts hospital from where she was then shifted to Apollo hospital. The injured Bhawna Kohli was shifted to the hospital with the help of one public person.
19. Both the aforesaid witnesses were cross examined by Learned counsel for the accused but nothing material came on record which could discredit their testimony. PW 1 was even not cross examined extensively. However, PW 3 was cross examined in detail wherein she denied that in order to save a cyclist, the accused lost the balance and met with an accident. No suggestion has been put to either of the prosecution witnesses that the accused did not jump the divider and rammed his vehicle in their Esteem car. Accused has examined himself in defence evidence stating that the accident took place as number of cows came in the middle of the road and to avoid hitting the cows, he took right turn and applied brake but his car hit the divider and jumped the divider. His car was standing in such a position that half of the car was on the divider and half was on the road on which the traffic was coming from Chirag Delhi side. He and his father got down and stood on the side of the road and thereafter, his father went to bring some help or mechanic and in the meantime Esteem car came from the side of Chirag Delhi in a rash and negligent manner and in a high speed and hit his car while the same was in standing position. He lastly stated that he was falsely implicated in the present case as the driver of the Esteem car was at fault. Accused also got examined his father as DW 2 who corroborated his version.
20. In order to better appreciate the aforesaid versions of both the sides, let us first examine as to what amounts to rashness or negligence. In the case titled Ram Avtar v. State of Rajasthan, 6th December, 2005 it was held in para 6 and 8 State Vs. Virender Kumar FIR no. 320/02 "6. Thus the essential ingredient for offence under Section 279, IPC is that the vehicle should be driven in "rash and negligent manner". The concept of rashness and negligence is borrowed from the law of tort into the criminal law. But in criminal law for rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. On the other hand, criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted (Ref. To AIR 1944 Lah. 163). Hence, the prosecution has to prove the existence of these two elements to bring home the offence under Section 279, IPC. However, the mere fact that accused was driving vehicle at high speed may not attract provision of Section 279, IPC. For, speed of a vehicle is not always determinative of the question whether vehicle was driven in a rash and negligent manner. One has to consider the surrounding circumstances of the case to conclude whether the driving was done in rash and negligent manner or not?
"8. In the case of Badri Prasad Tiwari v. The State I (1994) ACC 476 :
1994 Cri. LJ 389 (Ori.), the Hon'ble Orissa High Court has held that "In order to constitute an offence under Section 279, IPC, it must be established that the accused was driving the vehicle on a public way in a rash and negligent manner to endanger human life or to likely cause hurt or injury to any other person". The Hon'ble High Court further held, "In the case, I find that except a bare statement made by P.W. 2 that the vehicle was being driven in a high speed, no attempt has been made to establish that there was any rash and/or negligent act on the part of the driver".
State Vs. Virender Kumar FIR no. 320/02 Therefore, the Hon'ble Orissa High Court was pleased to acquit the accused person. Similarly, in the cae of Beda Kanta Phukan v. The State of Assam,1992 Cri. LJ 1197 (Gau.) the Hon'ble Gauhati High Court has held that merely because the accused was driving the vehicle at a high speed may not attract provisions of Section 279."
21. Also in Keshav v. State of Haryana, 21st January 2010, Punjab and Haryana High court, it was held:
".....In support of the first argument, counsel for the petitioner has relied upon State of Kar nataka v. Satish, (1998)8 SCC 493. Para 4 of the Crl. Revision No.922 of 1998 [4] judgment read as under: "4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur"........"
22. Now reverting back to the facts of the present case. It is the case of the prosecution that accused acted in a rash and negligent manner by diverting the offending vehicle from his lane and jumping the same from over the divider thereby banging the same in a Esteem car and due to the impact of that accident, PW 1 and PW 3 suffered injuries whereas their younger sister Bhawna Kohli had suffered injuries on her head and she later on succumbed to her injuries. The case of the accused till State Vs. Virender Kumar FIR no. 320/02 the time the prosecution evidence was being recorded was that in order to save a cyclist, he lost the balance and met with an accident. This suggestion was put to PW 3 but the same was denied by her. However, no such suggestion was put to PW 1. At the time of adducing defence evidence, accused came up with a totally new story that he jumped over the divider as few cows suddenly came in the middle of the road and to avoid hitting the cows, he took right turn. It is also his stand that at the time when the Esteem car hit the offending vehicle, then at that point of time, half of the offending vehicle was on the divider and half was on the road and it was due to the negligence of the driver of the Esteem car that the accident had taken place. Site plan Ex.PW6/H makes it amply clear that the offending vehicle of the accused came on the wrong side of the road when it hit the Esteem car. The point of accident is shown as Mark A in the site plan. It is worthwhile to note that the alleged defence of the accused that some cows came in front of his vehicle which led to him turning the vehicle on the right side came on record for the first time in his defence evidence. No such suggestion was put to either PW 1 or PW 3 who are the eye witnesses to the incident in question. In fact, at the time of their evidence, the accused raised the defence that in order to save a cyclist, he lost the balance and met with an accident. The said defence/suggestion was of course denied by PW 3. In these circumstances, it is difficult to take into consideration the defence of the accused which is raised at the belated stage. No opportunity has been given to the prosecution witnesses to counter this stand of the accused. PW 1 and 3 being the eye witnesses, were in a better position to depose anything on the fact whether the accused turned offending vehicle towards right in order to avoid hitting the cows or not.
23. For a moment, even if we assume the version of the accused to be true and correct, still in my considered opinion, the act of the accused was a negligent one which certainly falls under the ambit of section 279/304 A IPC. Negligent act means State Vs. Virender Kumar FIR no. 320/02 failure to take proper care and precautions jeopardizing the lives of other persons. It means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one, it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing what one ought to do can constitute negligence.
24. In a fairly recent Judgment of Apex court, the concept of driving has been extensively explained. The Judgment is titled as Ravi Kapur v. State of Rajasthan (2012) 9 SCC 284 and para 14 is reproduced as below:
"14. The Court has to adopt another parameter i.e "reasonable care" in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others".
25. It is amply clear from the above that rash and negligent driving has to be examined in the light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held State Vs. Virender Kumar FIR no. 320/02 responsible for the act as well as for the result. Likewise in the instant case, it should have been in the contemplation of the accused that while going on a right side of a straight road, if some object whether living or non living came in front of his vehicle then he should either apply his brakes instantly in order to halt the vehicle or to take a left turn on the same road. It is not expected of a driver to swerve his vehicle on the right side by jumping on the divider and come to drive his vehicle on the wrong side from where the other vehicles may be approaching and which may prove fatal to the passengers of those vehicles. The act of the accused in swerving his vehicle on the right side for whatever reason definitely amounts to negligence on his part as he did not care for the safety of the vehicles coming from the parallel side of the road. Moreover, his version that a number of cows came in the middle of the road does not seem to be credible and appears to be an afterthought. Even if that would have been the case, it was incumbent upon him to have applied brakes instantly or to have turned his vehicle towards left side instead of right side. Having regard to the above narrative, I am of the view that accused certainly acted in a negligent manner by blindly turning the offending vehicle towards the right side which resulted into the vehicle being transported to the parallel road and hitting the esteem car coming on that road and eventually causing the death of Bhawna Kohli.
26. As far as the contention of learned counsel that there are certain discrepancies in the versions of PW 1 and PW 3, I would like to say that minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hypertechnical approach. It has been held in Thoti Manoher v. State of A.P, (2012) 7 Supreme Court Cases in para 38 "......The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of State Vs. Virender Kumar FIR no. 320/02 the prosecution case are to be ignored......"
27. The testimonies of both the prosecution witnesses i.e PW 1 and PW 3 are clear, cogent and reliable. FIR Ex.PW2/A was promptly registered thereby ruling out possibility of any improvement or embellishment. Accused was arrested from the spot vide arrest memo Ex.PW6/C.
28. In the light of the aforesaid narrative, I hold that prosecution has been successful in building the case of negligent driving against the accused. The stand taken by the accused, even if accepted in its entirety, does not exculpate the accused. Hence, he stands convicted for the offence u/s 279/304 A IPC. Let he be heard on the point of sentence.
Announced in the open court (Navjeet Budhiraja)
on 16.2.2013 Metropolitan Magistrate05,
South East, New Delhi
State Vs. Virender Kumar FIR no. 320/02