Delhi District Court
State vs . Balbir Singh Etc. on 29 June, 2012
IN THE COURT OF MS. MANISHA KHURANA, MM-11,
DWARKA COURTS, NEW DELHI
State vs. Balbir Singh etc.
FIR No. 25/06
P. S. Naraina
U/s. 279/337/338/304A/34 IPC
1. Serial No. of the case : 59/2/12
2. Date of commission of offence : 27.01.2006
3. Name of the complainant : HC Makhan Lal,
No. 166/SW,
PS Naraina, Delhi.
4. Name of the accused and
his parentage and residence : (i) Balbir Singh
S/o. Saudagar Singh
R/o. WZ-303E,
Sant Garh, Tilak Ngr,
New Delhi
(ii) Satyapal Singh
S/o. Prithvi Raj Chauhan
R/o. B-211, JJ Colony,
Khanpur, Delhi.
5. Date when judgment was : 01.06.2012
reserved
6. Date when judgment was : 29.06.2012
pronounced
7. Offence complained of : 279/337/338/304A/34
or proved IPC
8. Plea of accused : Not guilty
State vs. Balbir Singh etc.
FIR No. 25/06
P. S. Naraina
U/s. 279/337/338/304A/34 IPC
9. Final Judgment : Accused Satyapal Singh
(Convicted)
Accused Balbir Singh
(Acquitted)
Brief Statement of reasons for the decision of the case The brief facts of this case are as follows:-
1. On 27.1.2006, an FIR was lodged whereby it was informed that in front of Kendriya Vidyalaya, School, 3, ring road, Naraina, an accident had occurred. As per the information that was received one bus bearing registration no. DL-1PA-1893 and a truck bearing no.
HR-55B-8102 had collided with each other and a child namely Mayank was lying dead on the road and his head had been cut. It was also informed that some other children had also sustained injuries due to the accident and had already been taken to the hospital. After the completion of investigation, the chargesheet for the offence under Section 279/304A IPC was filed against one truck driver namely accused Balbir Singh and one bus driver namely accused Satya Pal Singh.
2. On appearance of both the accused, notice under Section 251 Cr. P. C was framed against the accused for the offence under section 279/337/338/304 A IPC and 304A of Indian Penal Code on 05.06.2007 to which they pleaded not guilty and claimed to be tried. Thereafter, the matter was listed for prosecution evidence.
State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC
3. In prosecution evidence, seventeen witnesses namely PW-1 Arvind Kumar Sharma, PW-2 Preeti, PW-3 Niab Subedar Birender Singh, PW-4 Dr. Chander Kant, PW-5 Dr. Shishir Chandan, PW-6 S. S. Rawat, PW-7 Raj Kumar Khandelwal, PW-8 Vinod Kumar Kanajoia, PW-9 Dr. Yogesh, PW-10 SI Virender Singh, PW-11 J.P. Nahar, PW-12 HC Makhan Lal, PW-13 Abhay Ram, PW-14 SI Mukti, PW-15 HC Navin, PW-16 Inspector Dhirender Sharma and PW-17 Retd. ASI/Tech Devender Kumar were examined.
4. Thereafter, statement of both the accused under Section 313 Cr. P. C was recorded whereby accused Balbir Singh stated that he does not want to lead evidence in his defence while accused Satya Pal Singh stated that he wants to lead defence evidence. However, despite availing several opportunities, accused Satya Pal Singh failed to lead any evidence and defence evidence was therefore closed vide order of Ld. Predecessor dated 27.02.2012 and the mater was thereafter listed for final arguments.
5. I have heard Ld. APP for the State and Counsel for accused. I have perused the record carefully.
Section 279 & 304 A IPC 279 IPC :- Rash driving or riding on a public way - whoever drives any vehicle, or rides, on any public way in a manner so rash or State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC negligent as to endnager human life, or to be likely to cause hurt or injury to any other person, shall be punished 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 with both.
304A IPC:- Causing death by negligence -
whoever causes 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.
6. It is well settled that criminal rashness and negligence within the meaning of section 279 and 304A IPC necessarily connotes neglect or failure to exercise reasonable and proper care and precaution to guard against injury, either to the public generally, or to an individual in particular which having regard to all the circumstances, the accused person ought to have adopted.
7. Further more, the essential requirement of section 304A IPC is that the death of a person must have be caused by doing a rash and negligent act. Thus, to bring home the guilt of the accused u/s. 304 A, it is imperative that there is a direct nexus between the death of the person State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC and the alleged rash and negligent act. The alleged rashness and negligence to be culpable should entail recklessness or indifference to the consequences of the act and knowledge that the said act may cause injury to a persons or public at large.
8. In the present case, in order to bring home the guilt of the accused, the prosecution has examined eye-witnesses namely Child Arvind Kumar aged about 14 years, Child Preeti aged about 11 years as PW-1 & PW-2 respectively alongwith witness Raj Kumar and Vinod Kumar Kanojia as PW-7 & PW-8 respectively.
9. Both PW-1 & PW-2 had correctly identified the accused Bus Driver i.e. Satyapal as well as the accused Truck Driver namely Balbir Singh in the Court. In his testimony, PW-1 Child Arvind Kumar Sharma deposed that he is a student of 7th class of K. V. Naraina and he used to go in the bus hired by the school which used to be driven by the accused. PW-1 further deposed that on the fateful day i.e. On 27.01.2006 he took his seat in the school bus which was supposed to drop him home. However, the ignition of the said bus could not be started, therefore, the accused bus driver told the children of the bus as well as the conductor to alight and to push the bus. Some of the students kept pushing the bus, however, PW-1 boarded the bus. PW-1 has further testified that there was a slope at the place where the bus was being pushed. Therefore, the accused lost control of the bus and the bus in stead of taking left turn towards Dhaula Kuan went to the other side from where a truck was State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC coming at a very fast speed. PW-1 has further deposed that the bus therefore struck against the truck due to which PW-1 received injuries below his right eye and one child namely Mayank succumbed to injuries at the spot while other children namely Sanjeev, Sonu, Preeti, Abhishek, Amit, Shivam and Rahul received grievous injuries. PW-1 also testified that the bus driver had told that the brakes of the bus were not in working condition, however, despite knowing the same, the accused bus driver drove the same.
10. PW-1 was cross-examined by counsel of both the accused. In his cross-examination, PW-1 deposed that child Mayank was sitting in the cabin of the bus while child Sanjeev was pushing the bus.
11 PW-2 child Preeti also corroborated the testimony of PW-1 and she also deposed that the accused bus driver made the children push the bus since the same could not be started. PW-2 also testified to the fact that there was a slope at the place where the children started pushing the bus and that accused lost control of the bus which ran over the central divider and went to the other side. PW-2 also testified that the bus as well as the truck were running at a high speed. PW-2 also stated that she received injuries due to the accident.
12. PW-2 was also cross-examined by counsel of both the accused wherein PW-2 also stated that child Sanjeev was amongst the students who were pushing the bus.
State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC
13. Thus, from the testimonies of child witnesses PW-1 & PW-2, it is apparent that the identity of the accused bus driver is not in dispute since the offending vehicle was a school bus which was being used for taking the children including PW-1 & PW-2 to the school on a regular basis. Further more, from the testimony of the child witnesses PW-1 & PW-2, it has emerged that the offending vehicle i.e. the bus was not in a working condition and the accused bus driver had knowledge about the same. Moreover from the said testimony it is also established that the accused bus driver acted without due care and caution, in a rash and negligent manner by asking the children to push the bus on a heavy traffic road, knowing well that the brakes of the bus were not working.
14. As afore-stated, PW-1 & PW-2 both have with stood the test of cross-examination and there is no inconsistency in their testimonies. Consequently, the testimonies of PW-1 & PW-2 can be relied upon.
15. Apart from PW-1 & PW-2, two other eye-witnesses namely Raj Kumar Khandelwal and Vinod Kumar Kanojia have also been examined by the prosecution as PW-7 & PW-8 respectively. PW-7 Raj Kumar Khandelwal has testified on oath that on the said date he was standing at the crossing situated t Ring Road, Near School. K. V. No. 3, Naraina alongwith PW-8 Vinod Kumar and on the said date PW-7 also saw the aforesaid accident. PW-7 also deposed that for the safe crossing of the school bus, the Army personnel had stopped the traffic on the ring State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC road on both the sides but the accused truck driver did not pay any heed to the same and there was a collision between the bus and the truck. PW-7 also deposed that the bus was started by pushing the same by the students and that after the collision two children fell down from the bus and when the bus turned towards Nariana, after the impact of the collision, another child fell from the bus. The injured school children were therefore taken to the hospital and police was informed. PW-7 further deposed that one child namely Mayank succumbed at the spot as his head had been badly crushed. PW-7 was also cross-examined by counsel of both the accused.
16. In the cross-examination of PW-7 there were some inconsistencies with respect to the identity of both the accused since in the statement given to the police at the spot by PW-7, PW-7 had stated that he had not seen the accused bus driver as well as the accused Truck driver as both of them had fled from the spot of occurrence. Be as that may, as already aforestated the identity of both the accused have already been established by child witnesses PW-1 & PW-2. Apart from the said inconsistencies, the testimony of PW-7 also corroborates the version of the prosecution that the accident had occurred since the bus had crossed over to the other side towards Naraina and had collided with the truck and further that one child namely Mayank died at the spot due to the said collision while the other children suffered injuries.
17. Likewise, the testimony of PW-8 Vinod Kumar Kanojia also State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC corroborates the aforesaid fact. However, the testimony of PW-7 & PW-8 does not inspire confidence in respect of the fact that army personnel had stopped the traffic on the road on both the sides and that the accused truck driver was driving in a rash and negligent manner as the said witness had not made any such statement to the police at the place of occurrence. The said statement therefore appears to be an improvement which is sought to be made by the witness. Even in the site plan EX. PW. 10/C prepared by the IO, no such army barricades have been shown.
18. Thus, from the aforesaid testimonies, although the role of the accused bus driver Satyapal in the accident is distinctively established, however, it could not be established beyond reasonable doubt that the accident was also a direct resultant of any rash and negligent act of the accused truck driver Balbir. At best, it can be inferred that the truck was being driven at a high speed, however, the same does not impute rashness and negligence on the part of the accused truck driver.
19. The aforesaid testimony is also supported by other circumstantial evidence, namely the mechanical inspection report of the bus as well as of the truck which is EX.PW.1/H and EX. PW. 10/H.1 respectively, prepared by PW-17 Retd. ASI/Tech. Devender Kumar. As per the mechanical inspection report the bus was found 'not fit' for road test while the truck was found 'fit' for road test. PW-17 had testified that front portion of conductor's side of the bus was pressed and damaged which could have occurred only due to an accident.
State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC
20. PW-3 Naib Subedar Birender Singh, Base Hospital, Delhi Cantt. proved the MLC dated 27.01.2006 of children Sanjeev Kumar and Rahul as EX. PW. 3/A and EX. PW. 3/B respectively, whereby it is stated that the said children had received grievous injuries.
21. PW-4 Dr. Chander Kant who conducted the postmortem examination of child Mayank on 28.01.2006 proved the MLC as EX. PW. 4/A. As per the said MLC, the cause of death of the child was stated to be shock, head injuries caused by blunt force likely in a road traffic accident.
22. PW-6 S. S. Rawat, MRT, Safdarjang Hospital, produced the MLC record of an unknown child dated 27.01.2006 as EX. PW. 6/A whereby the cause of death of the child was stated to be skull injury.
23. PW-9 Dr. Yogesh, CMO, DDU Hospital proved the MLC of the other children namely Sonu, Amit and Arvind, as EX. PW.9/A.1 to EX. PW. 9/A.3. As per the said MLCs the nature of injuries received by the said children was 'simple'. PW-9 also proved the MLC of children Preeti, Shivam and Abishek as EX. PW. 9/A.4 to EX. PW. 9/A.6. As per the said MLCs EX. PW. 9/A.4 & EX. PW. 9/A.6 the nature of injuries received by the said children was 'simple'.
24. The prosecution has also examined the IO SI Virender Singh as PW-10. PW-10 deposed that on the said date of occurrence State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC investigation of the present case was assigned to him and he alongwith Ct. Surender Singh reached at the spot where he found that truck no. HR 55D 8102 and bus DL 1PB 1893 in accidental condition alongwith a dead body of a child namely Mayank. The IO/PW-10 also proved the photographs of the scene of occurrence on record as EX. PW. 10/A.1 to EX. PW. 10/A.11. The IO also proved the site plan which he had prepared at the instance of eyewitness Vinod, seizure memo of the truck and the bus as EX. PW. 10/D & EX. P.10/E, arrest memo as EX. PW. 10/K and EX. PW. 10/L respectively.
25. In the cross-examination, PW-10 has conceded that the truck was on the proper side of the road. PW-10 has further averred that the bus was supposed to take left turn towards Dhaula Kuan. Thus, from the testimony of PW-10 also, the recklessness of accused bus driver Balbir cannot be established. In-fact PW-10 himself has stated that the truck was not being driven on the wrong side while it was the offending bus which instead of taking a left turn towards Dhaula Kuan travelled to the other side of the road and hit against the truck.
26. PW-11 Sh. J. P. Nahar, Ld. MM, testified to the fact that the accused Balbir Singh refused to participate in the TIP proceedings.
27. PW-12 HC Makhan Lal prepared the rukka at the spot i.e. EX. PW. 12/A and got the FIR registered through Ct. Surender.
State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC
28. PW-13 Abhay Ram, Record Clerk, Safdarjang Hospital produced the record of MLC of child Sanjeev Kumar dated 29.01.2006 as EX. PW.13/A whereby the cause of the death of the said child was stated to be shock due to multiple long bone fracture caused by blunt force impact.
29. PW-14 SI Mukti, Duty Officer proved the FIR as EX. PW. 14/A and endorsement on the rukka as EX. PW. 14/B.
30. Thus from the aforestated testimonies of the eyewitness, PW-1, PW-2, PW-7, PW-8, alongwith the medical reports proved as aforesaid coupled with the mechanical inspection report of the offending bus it is apparent that the accused bus driver Satyapal was driving the vehicle in a rash and negligent manner and he failed to exercise due care and caution which thereby caused the accident on the said fateful day. The very fact that accused bus driver Satyapal had the knowledge of the non-working of the brakes of the bus and even then without having regard to the consequences, he told the children to push the bus goes to show that the accused bus driver Satyapal acted with utter lack of care and caution and consequently, caused the death of two children namely Mayank and Sanjeev, and simple and grievous injuries to other children. However, as aforesaid the prosecution has not been able to bring out any element of rashness or negligence on the part of the accused truck driver Balbir Singh. The testimonies of the eyewitnesses are not reliable to that extent. The fact that the truck was being driven at a high speed does not State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC also prove rashness or negligence of the accused bus driver.
31. Further more, counsel for the accused Balbir Singh has relied upon these judgments :- AIR 1956 Andhra 21 (V. 43 C. 6 Jan.) Chandra Reddy and Satyanarayana Raju JJ, AIR 1956 Andhra 24 ( V. 43 C. 7 Jan.) Subba Rao C. J. and Bhimasankaram J., AIR 1963 Gujarat 275 (V 50 C 66) V. B. Raju, J. Gyansing Prabhat Singh Petitioner v. State, AIR 1954 TRA-CO (Vol, C. N. 2) Edward Top and anr. vs. State, 2000 CRI. L. J. 174 Sunil Kumar vs. M/s Escorts Yamaha Motors Ltd., AIR 1954 TRA-CO 4 (Vol. 41, C. N. 3) Parvathi Ammal vs. Canapathy Pattar, 2000 CRI. L. J. 169 Balbir vs. State of Haryana and anr., 2006 (3) JCC 1797 Abdul Subhan vs. State, 2007 (4) JCC 3285 Naresh Giri vs. State of M. P., 2007 (4) JCC 3290 Gali Venkataiah vs. State of A.P.
32. Ld. Counsel for accused Balbir Singh has argued that in view of the aforesaid judgment the said accused cannot be jointly tried with accused Satyapal as the said accident cannot be said to have been caused by accused Balbir in the 'same transaction'.
33. The relevant provisions governing joint trial of two or more accused is section 223 Cr. P. C which is reproduced as under:-
Section 223 What persons may be charged jointly-The following persons may be charged and tried together, namely:-
State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC
(a) Persons accused of the same offence committed in the course of the same transaction;
(b) XXXXX
(c ) XXXXX
(d) XXXXX
(e) XXXXX
(f) XXXXX
(g) XXXXX
34. As per section 223 (a) Cr. P. C two accused can be tried together in respect of the same offence alleged against them if it has been committed in the course of the same transaction. It is well settled that one of the test of 'same transaction' is commonality of purpose. In the present case both the accused were driving the vehicle from different directions and there was no oneness of purpose between them.
Therefore, the two accused could not have been tried together. Since the prosecution has failed to establish the guilt of accused Balbir beyond reasonable doubt coupled with the fact that the said accused has been prejudiced due to mis-joinder of charges and trial, the said accused is hereby acquitted of the alleged offences under Section 279, 337, 338 and 304 A IPC.
35. Be as that may, the prosecution has been able to prove its case against accused Satyapal beyond reasonable doubt as discussed State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC above. The said accused is therefore convicted of the offence under Section 279, 337, 338 and 304 A IPC. Put up for arguments on sentence on 02.07.2012.
Announced in the open Court (Manisha Khurana) on 29th June, 2012 Metropolitan Magistrate, Dwarka Courts,New Delhi State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC 29.06.2012 Present:- Ld. APP for the State.
Accused alongwith Counsel.
Vide separate judgment dictated and announced in the open Court today, truck driver accused namely Balbir Singh is hereby acquitted and bus driver accused namely Satyapal Singh is hereby convicted.
Bail bond of accused Balbir Singh, if any, stands cancelled. Surety of accused Balbir is discharged. Original documents of accused Balbir Singh, if any, be returned back.
Put up for argument on sentence of accused Sayapal on 02.07.2012.
(Manisha Khurana) Metropolitan Magistrate, Dwarka Courts,New Delhi State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC IN THE COURT OF MS. MANISHA KHURANA, MM-11, DWARKA COURTS, NEW DELHI State vs. Balbir Singh FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC 02.07.2012 Present:- Ld. APP for the State.
Accused Satyapal Singh.
Counsel for the Convict.
O R D E R ON SENTENCE
1. Arguments on the point of sentence heard today.
2. Ld. Counsel for convict had argued that the convict has two minor children and he is the sole bread earner of his family. It is further submitted that the convict does not have any previous criminal record. Ld. Counsel for convict further submits that had the truck driver applied brakes at the right time and stopped the bus, the accident could have been averted. Therefore, it is prayed that the convict be released on probation and lenient view be taken. Ld. Counsel for accused has relied upon judgment in 'Nirmal Singh vs. State of Haryana' Crime Vol-II, 1989 (1) of Hon'ble Punbjab and Haryana High Court.
3. Ld. APP has argued that the present case is not fit for grant of probation since in the present matter the accused had knowledge that the State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC bus was not in a working condition and even then, he made the children to push the bus which led to the loss of precious lives of two children. Heard.
4. In Dalibir Singh Vs. State of Haryana 2000 Cri.L.J 2283, the Hon'ble Supreme Court has held that " The benefit of probation should not be extended to persons convicted under Section 304-A for rash and negligent driving" .
5. In the present matter the offence u/s. 279 IPC, 337 IPC, 338 IPC and Section 304 A IPC has been proved against the convict and it has been proved beyond reasonable doubt that the rash and negligent driving of the convict, led to the unfortunate loss of two precious lives of children of tender age and caused injuries to other children. The convict, therefore, cannot be extended the benefit of the benevolent provision of probation. Moreover, in the present matter, the convict as well as the concerned school have completely flouted the directions of the Hon'ble Supreme Court of India regarding the care and caution which is to be exercised while driving a school bus. Consequently, as aforesaid, the convict, therefore, cannot be treated with a lenient view and keeping in view the nature and gravity of the offence committed, no mitigating circumstances can be considered. It is well settled that punishment in such cases should have deterrent effect.
6. Accordingly, keeping in view the facts and circumstances of the case, the convict is hereby sentenced to Rigorous imprisonment for State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC period of four months for the offence u/s. 279 IPC as well as for the offence u/s. 337 IPC, a period of six months rigorous imprisonment for the offence u/s. 338 IPC and Rigorous imprisonment for the period of two years and fine of Rs. 10,000/- for the offence u/s. 304 A IPC. In case of default of payment of fine, the accused shall undergo simple imprisonment for the period of one month. The sentences for the offence u/s. 279 IPC, 337 IPC, 338 IPC & 304 A IPC shall run concurrently. However, the period undergone by the convict under detention, if any, shall be set off against the sentence of imprisonment in accordance with Section 428 Cr. P. C.
7. At this stage, counsel for accused has moved an application u/s 389 Cr PC for grant of bail on the ground that the convict intends to file an appeal. Heard. In view of the same, the convict is admitted to bail for a period of one month on furnishing a personal bond in the sum of Rs. Rs. 10,000/- and surety of the like amount. Bail bond and surety bond furnished and accepted till 02.08.2012. Bail bond be put up on 02.08.2012. Fine paid.
Copy of judgment and order on sentence be given to the convict, free of cost, forthwith. File be consigned to record room.
Announced in the open Court (Manisha Khurana) on 2nd July, 2012 Metropolitan Magistrate, Dwarka Courts,New Delhi State vs. Balbir Singh etc. FIR No. 25/06 P. S. Naraina U/s. 279/337/338/304A/34 IPC