Delhi District Court
State vs Javed Ali @ Pappu on 21 April, 2018
IN THE COURT OF MS. SHIVANI CHAUHAN,
METROPOLITAN MAGISTRATE-05
SOUTH EAST DISTRICT: SAKET COURTS: NEW DELHI
JUDGMENT
STATE VS JAVED ALI @ PAPPU FIR No. :584/08 U/s. 279/304A IPC PS : Sarita Vihar A. Cr No. : 90196/2016 B. Date of Institution : 04.08.2009 C. Date of Commission of Offence : 12.12.2008 D. Name of the complainant : Dharamvir Singh E. Name of the Accused : Javed Ali @ Pappu S/o Kyamuddin R/o Village Meethapur, PS Gulawati, Distt.
Bulandshahar, UP.
F. Offences complained of : U/s 279/304A IPC
G. Plea of the Accused : Pleaded not guilty
H. Order reserved on : Not Reserved.
I. Final order : Convicted
J. Date of such order : 21.04.2018.
FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 1 of 17
Brief Facts :-
1. The present case is the result of FIR No.584/08 and the charge sheet filed by police thereupon. The brief facts leading to registration of present FIR against the accused are as follows:
2. On 12.12.2008 at about 2.45 am at opposite petrol pump, Ashram Faridabad road, Sarita Vihar Flyover within the jurisdiction of PS Sarita Vihar, accused was driving Truck bearing No. HR-38-N-5178 in a manner so rash and negligent so as to endanger human life and personal safety of others and while driving the aforesaid vehicle in the aforesaid manner, he caused death of one person namely Sanjay, not amounting to culpable homicide and thereby committed the offence punishable U/s 279/304A IPC.
3. The accused was supplied with the copy of challan and documents. Thereafter, the matter was listed for arguments on charge. After scrutiny of documents, parties were heard on charge. Prima facie offences punishable U/s 279/304A IPC were found to made out against the accused. Formal Charge was framed for offences U/s 279/304A IPC vide Order dated 15.01.2011. The charge was explained to accused to which he pleaded not guilty and claimed trial.
4. To bring home the guilt of accused, prosecution examined FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 2 of 17 seven witnesses.
5. Vide separate statement recorded u/s 294 Cr.P.C r/w S. 313(1)(a) Cr.P.C, accused had admitted the genuineness of DD No. 4A dated 12.12.2008 and ownership of vehicle no. HR 55C 5576 by Abbas Ali, S/o Sh. Yasin Khan as Ex-A1 & Ex-A2 respectively.
6. In his statement recorded u/s 313 Cr.PC, accused denied the prosecution case and pleaded innocence.
7. I have heard Ld. APP for the State and Ld. Defence Counsel as well as gone through case file & written arguments of accused very carefully.
8. The argument of Ld. APP is that there is enough material on evidence to prove the case against the accused.
9. Ld. Defence counsel on the other hand has argued that the accused was driving the vehicle carefully and there was no negligence on his part. He argued that the aforesaid Qualis car hit against the vehicle of accused as the driver of the said vehicle was driving very rashly and negligently. It was argued that the accident took place without any fault of the accused and as such the accused is entitled to acquittal in the present case.
Relevant Law:-
10. It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 3 of 17 doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
Definition of rashness and negligence.
11. What is rashness or negligence has been defined in relevant paragraphs of the judgment of Ravi Kapur Vs State of Rajasthan 2012(7) SCALE354 which are quoted below:
Para11- "Negligence 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 FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 4 of 17 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 was ought to do can constitute negligence."
B. Para 17- "A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 5 of 17 Law relating to requirement of independent witness
12. Further Sec. 100 Clause 4 & 5 CrPC talk about requirement of independent witnesses only when search is made on the person of the accused or at some place from where the incriminating articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned. Regarding the non-joining of independent witnesses it has been stated in judgment titled as Appabhai v. State of Gujrat, 1988 Supp 241 : AIR 1988 SC 696 that "11...... Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One can not ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. This has also been relied upon in judgment titled as Kathi Bharat Vasjur v. State of Gujarat in AIR 2012 SC 2163 (Para 22).
FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 6 of 17 Minor contradictions do not effect the credibility of the prosecution case.
13. It was held in the judgment titled as Ravi Kapoor V. State of Rajasthan, 2012 VIII AD (S.C) 73 that "Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence".
Overall context of the case is to be seen.
14. It also the settled law laid down in Sardul Singh Vs. State of Haryana AIR 2002 SC 3462 that courts have a duty to undertake a complete and comprehensive appreciation of all the vital features of the case and entire evidence with reference to broad and reasonable probabilities of the case in their attempt to find out proof beyond reasonable doubt.
Ingredients to be proved.
15. I have perused the record very carefully and have considered the arguments advanced by the Ld. APP as well as the defence counsel. Before giving the reasons and my decision on the case, it would be pertinent to lay down the basic ingredients of Sec. 279 of IPC. The accused is liable to be punished under Sec. 279 IPC when the prosecution proves the following ingredients :
FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 7 of 17
(i) the accused should have been driving offending vehicle.
(ii) He should have been driving on a public way.
(iii) The manner of driving should be rash or negligent in a way to endanger human life or which is likely to cause hurt or injury to any other person.
16. Now I will discuss whether the ingredients as outlined above have been satisfied by the prosecution or not.
(i)- The accused should have been driving the offending vehicle on public way?
17. PW-7 served notice u/s 133 M.V. Act i.e., Ex. PW7/C to the registered owner of offending Truck.
18. Sh. Abbas Ali i.e., the Registered owner of the said Truck replied on notice vide Ex. PW2/A stating that on the day of incident his Truck was being driven by his driver Javed Ali @ Pappu. No contrary or suggestion was given to this witness. There is no reason to doubt the veracity of PW-2.
19. In his statement U/s 313 CrPC, the accused admitted that he was driving the truck bearing no. HR-38-N-5178 on 12.12.2008 at about 02:45 AM at the relevant place.
20. The defence witness DW-1 i.e., Sh. Wasim also admitted in his cross examination that the accused Javed Ali was driving FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 8 of 17 truck bearing no. HR-38-N-5178 at the relevant date and time.
21. Thus, the prosecution has been able to establish that the accused Javed Ali @ Pappu was driving the offending vehicle I.e, Truck bearing number HR-38-N-5178 on the date and time of the incident at the place of occurrence I.e, opposite Petrol Pump, Ashram-Faridabad Road, Sarita Vihar flyover which is a public way .
(ii) The manner of driving should be rash or negligent in such a way as endangers human life or which is likely to cause hurt or injury to any other person.
22. PW-1 Dharamvir is an eye witness to the said incident and investigation was conducted by the then SI D. K. Tejwan.
23. PW-1 Dharamvir Singh deposed that on 12.12.2008 at 02:45 AM while he was going to Vrindavan alongwith his relative in Tata Qualis Car bearing no. HR-55-C-5576, one truck bearing no. HR-38N 5178 hit them from behind on right side due to which, the Qualis collided into the railing and turned turtle. The accused Javed Ali got down from his truck and fled from the spot after seeing them injured. Dharamvir Singh had full opportunity to see the accused when he got down from his truck and identified the accused in the Court. No contrary suggestions were given by the accused to this witness.
24. PW-7 Inspector D.K. Tejwan is the investigating officer in FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 9 of 17 the present case and deposed that on 12.12.2008, he was posted at P.S. Sarita Vihar as Sub Inspector. On that day, he was on emergency duty from 08:00 pm to 08:00 am. At around 03:00 AM, he received DD No. 4 A regarding accident having occurred at Mathura Road. IO alongwith Ct. Anil reached the spot and saw that the victims Qualis car lying in accidental condition on road towards Faridabad side. The victim's Car was found lying near middle railing of road and the offending Truck bearing no. HR-38- N-5178 was also found on the pavement in front of petrol pump. The complainant Dharamvir i.e., driver of Qualis car met him. PW- 7 recorded statement of complainant vide Ex. PW1/A. PW-7 prepared rukka on the basis of statement of complainant vide Ex. PW7/A. Rukka was sent to PS through Ct. Anil for registration of FIR. Ct. Anil went to PS and got the FIR registered and returned at the spot alongwith copy of FIR and original rukka and same was handed over to IO.
25. PW-7 prepared site plan Ex. PW7/B at the instance of complainant. PW-7 got clicked photographs of both the vehicles and spot. Thereafter, PW-7 seized both the vehicles vide memos Ex. PW3/C and Ex. PW3/D.
26. PW-7 came to know that one injured Sanjay and other passengers of Qualis Car had already been shifted to Rohtak, Haryana. PW-7 served notice u/s 133 M.V. Act i.e., Ex. PW7/C to the registered owner of offending Truck.
FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 10 of 17
27. Sh. Abbas Ali i.e., the Registered owner of the said Truck replied on notice vide Ex. PW2/A stating that on the day of incident his Truck was being driven by his driver Javed Ali @ Pappu.
28. PW-7 got conducted mechanical inspection of both the vehicles. On the same day, registered owner produced his driver Javed in PS Sarita Vihar where PW-7 arrested and personally searched accused Javed vide memos Ex.PW1/B and Ex.PW1/C. At the time of arrest of accused, complainant Dharamvir Singh was also present at the PS and identified him i.e., the accused as driver of offending vehicle. PW-7 also seized Driving License of accused, Registration Certificate and insurance of offending vehicle vide memos Ex.PW3/A and Ex.PW3/B. After receiving information regarding death of injured Sanjay from PGIMS, Rohtak, IO went to Rohtak and moved an application on 14.12.2008 for postmortem of dead body of deceased same is Ex. PW7/D. PW-7 IO/Inspector D.K. Tejwan prepared identification memos of dead body of deceased same is Ex. PW7/E and PW7/F. After postmortem, PW-7 handed over dead body of deceased to relative vide memo Ex. PW7/G. PW-7 collected postmortem report of deceased.
29. The defence of the accused is that the accident was not caused due to his rashness or negligence but is solely attributable to the fault of driver of Toyota Qualis no. HR-55-C-5576. DW-1 has deposed that the Truck of the accused was being driven FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 11 of 17 within the prescribed speed limit and there was a bus being driven parallel to their truck. He deposed that the driver of the Toyota qualis was in hurry and attempted to overtake the bus through the gap between bus and their truck. He deposed that the Toyota Qualis car suddenly came in front of their truck as a result of which it was hit by their Truck. He deposed that accused applied heavy brakes but the accident could not be avoided. The witness deposed that the Qualis car turned turtle due to the impact. This witness was duly cross examined by Ld. APP for the State. During cross-examination, the witness could not even specify the color of the Qualis car. If the witness had indeed seen the car, he would have been able to tell the basic detail such as colour. Interestingly, the witness also deposed that he did not see the said Qualis Car. These self contradictory statements of the defence witness demolishes his credibility and gives rise to the presumption that he is a planted witness. The contradictions in the testimony of defence witness are material and strike at the root of the defence. There is no justified explanation for these contradictions by the Defence. Further, the defence witness could not produce any document to show that he was employed as Conductor with the accused on the said Truck on the relevant date and time. Nor did the defence counsel put any question or suggestion to the owner of the vehicle during his cross-examination. In view of these contradictions and omissions, serious doubts arise with respect to the credibility of the defence witness Sh. Wasim. Thus, no FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 12 of 17 reliance can be placed on his testimony.
30. The site plan Ex.PW7/B shows the placement/ spots at which the vehicle of the accused and victim was found lying on the road. The truck of the accused was found lying at spot 'D' and the victim's car was at point 'C'. One Guard by the name of Ravinder Pal is stated to have witnessed the incident from point 'E' which is approximately 50 Sq. Yard from the Truck of the accused. The Toyota Qualis was lying at spot scene which is much ahead of the place where the Guard was standing. From the site plan, it is proved that the Toyota Qualis was lying at a considerable distance from the offending truck. This would not have been possible unless the Qualis car was hit with great impact from behind I.e, in a rash and negligent manner. If the truck of the accused was being driven within the speed limit, he would have been able to apply brakes and his own truck would not have turned and swirled at an angle at which it was found at the spot. The site plan read with testimony of PW-1 Dharamvir corroborates the prosecution's case that the offending Truck bearing no. HR-38-N-5178, which is shown lying at an angle point 'D' at site plan was being driven at a high speed and in a rash and negligent manner.
31. As discussed above, there is no dispute with respect to the fact that the Toyota Qualis car was hit by the truck driven by the accused. The defence of the accused, as discussed above, lacks credibility. Prosecution, through the testimony of eye witness FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 13 of 17 Dharamvir has been able to establish that the Truck bearing no. HR-31-N-5178 which was driven by accused Javed Ali on 12.02.2008 at about 02:45 AM, in a rash and negligent manner, had hit the Toyota Qualis Car bearing no. HR-55-C-5576. Prosecution has further proved consequent to the impact of the hit, the Qualis car collided with the railing and turned turtle and the passenger Sanjay suffered grevious injuries and subsequently succumbed to those injuries. The MLC, Post Mortem Report of Victim Sanjay Kumar have also been admitted by the accused in his statement U/s 294 CrPC. Thus, there is no dispute with respect to the death of victim Sanjay. The Mechanical Inspection Report has also been admitted by the accused. The Mechanical Inspection Report of the Truck bearing no. HR-38-N-5178 and the victim's Toyota Qualis car bearing no. HR-55-C-5576 corroborate the sequence of events which has been evidenced by the testimony of the eye witness Dharamvir, Investigation Officer D. K. Tajwan and other witnesses. In these circumstances, it is held that the prosecution has been able to establish its case beyond the pales of its reasonable doubt. As discussed above, the accused has failed to substantiate the defence taken by him. Thus, the accused has failed to raise reasonable doubts in the Prosecution's Case. The factum of death of victim has been admitted and otherwise also same has been duly proved by the IO, testimony of eye witnesses and the post mortem report of the victim.
FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 14 of 17
32. As noted in preceding paragraphs, it is proved that accused was driving the offending Truck bearing no. HR-38-N-5178 in a rash and negligent manner and had hit Toyota Qualis car from behind due to which, the car hit the railing and turned turtle. Sanjay who was sitting on the rear seat of the Toyota Qualis car suffered grievous injuries which resulted in his death. The defence taken by the accused does not inspire any confidence. In these circumstances, no credibility can be given to the defence of the accused especially when the prosecution case has otherwise been proved, through the testimonies of eye witnesses and other circumstantial evidence.
33. It is settled law that independent witnesses are not necessary for corroboration in every case when the material witnesses sound truthful and their testimony is convincing to sustain the conviction of the accused. In this regard it is pertinent to mention that there is no such requirement of independent witnesses in CrPC or Evidence Act. Even under Clause 4 and 5 of Section 100 Cr.PC two witnesses of the locality are necessary only in a case where any incriminating article is found from the possession of the accused and independent witnesses are not necessary where they can be quoted only as witness to the fact though it would be better if the IO has cited such witnesses. In view of the afore stated law in Appabhai v. State of Gujrat & Kathi Bharat Vasjur v. State of Gujarat (Supra) the prosecution case is not affected due to the absence of the public witnesses. In view of FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 15 of 17 the settled law in Sardul Singh's case (Supra) one has to see the totality of circumstances which in this case point towards the negligent of the accused in commission of the accident.
34. The negligence is apparent from the fact that the deceased vehicle has been hit from behind which caused the death of passenger Sanjay. Hence, accused is guilty of negligent driving.
35. Considering the circumstances accused was clearly negligent and did not act like a prudent person by not maintaining sufficient distance from the vehicle in front. I also take support from the judgment of Delhi High Court in Paras Nath Vs. State of Delhi 107(2003) DLT 169 in which the accused was rightly held to be convicted because the complainant vehicle was hit from behind even though there was not direct allegation of rash or negligent driving by the accused. In view of the judgment of Ravi Kapoor Vs. State of Rajasthan (Supra) that minor contradiction in the case do not affect the credibility of the case, the contradictions and circumstances pointed out by the Ld. Counsel for the accused are minor in nature and do not affect the prosecution case.
36. Further in respect of offence u/s 304A, IPC which states "Causing death by negligence- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide"
FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 16 of 17
37. It has already been proved that the accused on the aforesaid date, time and place was found driving the offending vehicle in a rash and negligent manner and while so driving he hit against the aforesaid Qualis and caused grievous hurt to Sanjay which resulted in his death. The fact of death of said deceased has been duly proved as the postmortem report has been placed on record which has never been denied by the accused. All this has not been rebutted by the accused. In view of the aforesaid discussion, it is held that prosecution has been able to establish the guilt of the accused beyond pales of reasonable doubt. Accordingly, accused Javed Ali @ Pappu is hereby convicted for offence U/s 279 IPC and U/s 304A IPC.
Now come up for arguments on the point of sentence.
Announced in the open Court on 21.04.2018.
(SHIVANI CHAUHAN) METROPOLITAN MAGISTRATE-05 SOUTH EAST DISTRICT SAKET COURTS NEW DELHI FIR No.584/2008, PS-Sarita Vihar State Vs. Javed Ali @ Pappu Page no. 17 of 17