Delhi District Court
State vs . Om Prakash on 27 January, 2012
In the Court of Sh. Sunil Kumar, MM, Rohini District Courts, Delhi.
State Vs. Om Prakash
FIR No. 186/00
U/s 279/338 IPC
PS Jahangir Puri
The date of institution of case: 09.04.2001
The date of reserving the order :18.01.2012
The date on which Judgment pronounced: 27.01.2012
J U D G M E N T
Unique Identification No. : 02401R0094742001 Date of commission of offence : 16.04.2000 Name of the complainant : Raju Singh S/o Kundan Singh Name & address of accused : Om Prakash S/o Sh. Chhotu Ram, R/o Village Shahbad Daulatpur, Delhi.
Offence complained of : 279/338 IPC Final order : Convicted. Date of order : 27.01.2012 Brief Reasons for Decision:
1. Briefly stated, the prosecution case is that on 16.04.2000, at about 2.30 pm, near Old Police Station, barber shop, Jahangir Puri, Delhi the accused was found driving vehicle no. DL1GB2796 in rash and negligent manner as to endanger human life and personal safety of other and while driving so in the said manner, he caused grievous injuries on the person of Raju Singh and on the basis of the said allegations, the present FIR was registered and the accused has been charged with the offence U/s 279/338 Indian Penal Code (hereinafter called as IPC). FIR No. 186/00 Page No. 1/18
2. After investigation, chargesheet was filed against the accused. Copies were supplied to the accused in compliance to the section 207 Code of Criminal Procedure (hereinafter mentioned as Cr. PC) & notice U/s 251 Cr. PC was given to him to which he plead not guilty and claimed trial.
3. In support of the version, the prosecution has examined nine witnesses out of total thirteen witnesses as cited in the list of witnesses.
4. The accused was examined U/s 313 Cr. PC and all the material evidence against him was put to him and he refuted all the allegations leveled against him and submitted that he is innocent and has been falsely implicated in this case by the police.
5. I have heard arguments from Ld. Counsel for the accused persons, Ld. APP for the State and perused the material on record carefully.
6. Ld. Counsel for the accused persons has submitted that the accused has been falsely implicated in this case by the police officials. There are lot of contradictions in the statement of witnesses which has effected the prosecution case materially. The Prosecution has completely failed to prove the case against the accused beyond reasonable doubts. Since the Prosecution could not establish the case against the accused FIR No. 186/00 Page No. 2/18 persons for the alleged offences beyond shadow of doubt, it is, therefore, prayed that both the accused persons may be acquitted of the alleged offences.
7. On the contrary, Ld. APP for the State has submitted that it is a well established principle of Law that the every discrepancy in witness statements can not be fatal to the Prosecution case. It is further argued that there is no material discrepancies/ contradictions in the Prosecution case. It is further argued that the evidences, circumstances and the facts, if cumulatively taken together leads to the only conclusion that the accused only is the perpetrators of crime. The Prosecution has successfully established its case against the accused beyond shadow of doubt and the lacunae, if any, is not fatal to the case of the Prosecution. Hence, it is, prayed that the accused may be convicted for the alleged offences.
8. On careful scrutiny of the testimony of the witnesses reveals that PW1Smt. Krishna Devi is the registered owner of the water tanker No. DL1GB2796 who proved the superdarinama vide Ex. PW1/A as she had taken the vehicle on superdari on dated 16.05.2000. She produced the said tanker in the parking of Court complex and Ex. P1.
PW1Dilip Kumar (should have been PW2 but inadvertently mentioned as PW1 at the time of recording his statement) during his examination in chief deposed that on 16.04.2000 when he was going to market at about 2.30 pm and when he reached at the lane which goes FIR No. 186/00 Page No. 3/18 towards the PS, a tanker bearing No. DL1GB2796 was standing and the driver of the said tanker was filling water and after filing water the driver caused accident to Raju Singh. He further deposed that the driver of the tanker was driving it in a rash and negligent manner and he ride of the tyre on the leg of Raju Singh. He further deposed that after accident the driver took away the tanker and he had removed the injured to Hindu Rao Hospital. He further deposed that the IO prepared site plan on his instance, IO arrested the accused present in the Court (correctly identified) vide memo Ex. PW1/A and personal search memo Ex. PW1/B, both bear his signatures at point A. He further depsed that hte driving licence of Om Prakash was seized vide memo Ex. PW1/C, photocopy of RC was also seized by the IO vide memo Ex. PW1/D, IO recorded his statement.
This witness has not been cross examined on behalf of the accused despite opportunity provided to him.
PW3HC Jagdish was the duty officer who recorded FIR of the present case on dated 16.04.2000, on the basis of rukka brought by Ct. Madan Lal sent by HC Shri Bhagwan. Copy of FIR is Ex. PW1/A and endorsement on rukka is Ex. PW3/B. PW4Ct. Madan Lal during his examination in chief deposed that on 16.04.00, he along with HC Shri Bhagwan had gone to Hindu Rao Hospital after receiving DD No. 38B regarding an accident. He further deposed that IO collected the MLC of injured Raju Singh who was declared fit for statement and IO recorded his statement vide Ex. PW3/B. He further deposed that IO prepared at tehrir vide Ex. PW4/A and got the FIR No. 186/00 Page No. 4/18 case registered through him. He further deposed that IO prepared site plan Ex. PW4/B at the instance of the injured and his statement was recorded by the IO.
This witness has not been cross examined on behalf of the accused despite opportunity provided to him.
PW5HC Om Prakash during his examination in chief deposed that on 05.10.2000, the case file was marked to him for further investigation. He further deposed that on 11.11.2000, he collected final opinion regarding the injury which was opined as grievous vide MLC Ex. PW5/A, thereafter, section 338 IPC was added in the challan and he prepared the chargesheet.
This witness has not been cross examined on behalf of the accused despite opportunity provided to him.
PW6Sh. V.K. Singh, record clerk from Hindu Rao Hospital identified the writing and signatures of Dr. Reena Kothari on the MLC bearing No. 4576/00 of the injured Raju Singh. The MLC is Ex. PW5/A. He further deposed that the final opinion regarding nature of injury was given by Dr. Naveen Kothari and he identified the signatures and handwriting of Dr. Naveen Kothari also.
This witness has not been cross examined on behalf of the accused despite opportunity provided to him.
PW7Ct. A.K. Biswal during his examination in chief deposed that on 16.05.2000 he had joined the investigation of the present case with the IO and they had gone to the TPoint, Jahangir Puri, where FIR No. 186/00 Page No. 5/18 Dilip Kumar met them and informed that the offending truck which had caused an accident is standing near MCD office, they went there and found the truck bearing no. DL1GB2796 standing there. He further deposed that on inquiring from MCD office they came to know that one Om Prakash was the driver of the truck. He further deposed that the truck was seized by the IO vide memo Ex. PW7/A, accused was arrested at the instance of Dilip Kumar vide memo Ex. PW1/A and personal search memo Ex. PW1/B. He further deposed that IO had seized the DL of the accused vide memo Ex. PW1/C and a copy of RC of the said truck which was a water tanker of MCD vide memo Ex. PW1/D. He further deposed that her statement was recorded. He identified the accused in the Court.
This witness has not been cross examined on behalf of the accused despite opportunity provided to him.
PW8ASI Shri Bhagwan is the IO of the case who conducted necessary investigation in this case. He has deposed almost on the same lines as deposed by PW4Ct. Madan Lal & PW7Ct. A.K. Biswal and hence his testimony is not being discussed for the sake of brevity.
PW9SI Jai Singh during his examination in chief deposed that on 16.05.00, he mechanically inspected the vehicle bearing no. DL1GB2796 on the request of ASI Shri Bhagwan vide report Ex. PW8/C. This witness has also not been cross examined on behalf of the accused despite opportunity provided to him. FIR No. 186/00 Page No. 6/18
9. Before analyzing the testimony of the witnesses in terms of the alleged offences, let the essential ingredients of the alleged offences be discussed.
The essential ingredients of the offence punishable U/s 279 IPC are discussed as follows:
a) The accused was driving a vehicle or riding.
b) He was doing so on a public way.
c) He was also doing so rashly or negligently,
d) The act of driving or riding was to endanger human life or was
likely to cause hut or injury to any other person.
Further, the essential ingredients of offence U/s 338 IPC are discussed as follows:
a) Accused did some act.
b) He did it rashly or negligently.
c) The act was such as to endanger human life or personal safety of others.
d) Grievous hurt was caused in consequence of such hurt.
I have given my thoughtful consideration to the testimonies of the witnesses and perused the entire material on record carefully. To prove the case U/s 279/338 IPC against the accused, the Prosecution has to prove the presence of above mentioned essential ingredients of section 279 & 338 along with the following facts:
a) That the accused was driving the vehicle no. DL1GB2796 in a rash and negligent manner.
b) That while driving the said bus in aforesaid manner, the accused has caused grievous hurt to one Raju Singh. FIR No. 186/00 Page No. 7/18
First of all I have to see whether the offending vehicle was being driven by the accused or not. In respect to the identity of the accused the same has been duly proved by PW1Dilip Kumar who is eye witness in this case and has categorically identified the accused Om Prakash in the Court and has categorically testified that on 16.04.2000, the driver of the tanker bearing No. DL1GB2796 was filling water and after filing water the driver caused accident to Raju Singh and the driver of the tanker was driving it in a rash and negligent manner and he ride the tier on the leg of Raju Singh and after accident the driver took away the tanker and he had removed the injured to Hindu Rao Hospital.
It is pertinent to mention here that neither the accused nor his counsel have ever disputed the identity of PW1 who is an eye witness in this case and have never put any question to him in this regard. Hence, the identity of the accused has been duly established on the record.
The accused has not cross examined any witness in this case, meaning thereby that the accused has admitted the case of prosecution as it it without any protest.
Further, the accused during his statement U/s 313 Cr. PC, has categorically admitted his presence on the spot and the fact of causing accident of the injured as he has categorically deposed that the person who was injured was in drunk condition, however he tried to save the injured but his fingers of foot came under the wheels of vehicle. Meaning thereby that the accused has admitted that he had caused the accident of the injured.
FIR No. 186/00 Page No. 8/18
The submission made on behalf of the accused to the effect that the accident occurred due to the negligence of the injured as he was under the influence of liquor, is not convincing to the Court as there is nothing on the record to suggest that the injured was under the influence of liquor. The injured Raju Singh had been medically examined in this case vide MLC Ex. PW5/A and there is nothing in the MLC to show that the injured was under the influence of liquor.
Further, the identity of the accused has also been proved in the Court during the testimony of the police officials also who had arrested the accused at the instance of eye witness i.e. PW Dilip. Consequently, it can safely be concluded that on the said crucial date, the accused Om Prakash was driving the offending vehicle and this fact is very much clear on the basis of discussion as above.
10. Now the question which is to be consider is whether accused was driving the offending vehicle in rash & negligent manner at the time of accident.
The word rash and negligent has not been defined in IPC or Cr. PC. They have to be gathered from the facts and circumstances of each case and have to be interpreted and appreciated from the evidence, which has come on record as rash or negligent is always a subjective concept and depends upon facts and circumstances of each case. From the various Judgments as has been discussed by the passage of time, the word rash and negligent has been interpreted as under:
FIR No. 186/00 Page No. 9/18
"Rash or negligent ActCriminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. 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, which, 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."
"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 with the belief that the actor has taken sufficient precaution to prevent their happening. The imputability arises from acting despite the consciousness (luxuria). 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 neglect of the civic duty of circumspection. It is manifest that personal injury, consciously and intentionally caused, can not fall within either of these categories, which FIR No. 186/00 Page No. 10/18 are wholly inapplicable to the case of an act or series of acts"
11. In the present case, as far as the question of driving in a rash and negligent manner is concerned with, the same is very much evident from the testimony of PW1Dilip who has categorically deposed that the driver of the tanker was driving the vehicle in a rash and negligent manner and he ride of the tyre on the leg of Raju Singh and after accident the driver ran away from there with the tanker.
In criminal cases, the amount of degree of negligence are determining factors and negligence does not mean absolute carelessness or indifference but one to such degree of case as required in particular circumstances. The question whether the conduct of the accused amount to culpable negligence, therefore, depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient upon all the circumstances of the case. Perusal of the testimony of PW1Dilip clearly shows that the driver of the offending vehicle was driving the said vehicle in a rash and negligent manner and due to which he caused accident of Raju Singh. Even it is very much clear that after causing the accident the driver along with the offending vehicle fled away from the spot. This shows complete negligence on the part of the accused. The accused was a professional driver and he did not take proper care which is expected from a professional person. A professional driver required to be more careful and FIR No. 186/00 Page No. 11/18 cautious while running on the road and the accused being deputed on the said vehicle, his responsibility was much more than expected. The manner of occurrence of the accident points the negligence on the part of the accused and the accident would not have occurred if the accused had exercised due care and caution while driving the tanker.
12. The medical evidence is also available on record which is also supporting to the case of prosecution as perusal of the MLC Ex. PW5/A clearly shows that the doctor concerned had categorically opined the nature of injury as grievous in respect to the injured Raju Singh who was brought by Dilip Singh i.e PW1. In this respect reliance can be drawn on the case law titled as Mohinder Singh Vs. State of Punjab, 2006 AIR (SC) 1639 in which the deposition of injured was supported by the medical record and thereby the Hon'ble apex court held that : "The ocular version of the witnesses found support from the medical evidence and the cross examination of the witnesses could not show any contradiction or discrepancy".
13. In the present case also the version of eye witness i.e. PW Dilip has been supported from the medical evidence and no contradiction or discrepancy could be found in the testimony of the said witness as he had never been cross examined on behalf of the accused. FIR No. 186/00 Page No. 12/18
14. The submission on behalf of the accused to the effect that there are major contradictions in the testimony of the witnesses is not convincing to the Court as this is a well settled law that minor contradiction and discrepancies in the statements of the witnesses is not fatal to the case of prosecution and do not go to the root of the case. The mere statement that PW1 being an interest witness is likely to falsely implicate the accused, can not be a ground to discard the evidence which is otherwise, cogent and credible. In this respect, reliance can be taken on the case law entitled as Surender Singh Vs. State of Haryana, JT 2006 (1) SC 645 whereby it is held that: "Every discrepancy in the witness statement could not be treated as fatal to the Prosecution case. The discrepancies which does not effect the Prosecution case materially does not create infirmity".
All the witnesses examined by the prosecution are supporting the case of the prosecution and their statement on record is found to be cogent and inspires the confidence of the court and there is no reason to disbelieve the same as they are corroborating each other on all material respects and there is no material inconsistency and contradictions in their statements.
15. The further submission made on behalf of the accused that non examination of the Complainant in this case has been proved fatal to the case of the prosecution, is also not convincing to the court as the FIR No. 186/00 Page No. 13/18 Complainant could not be traced despite several efforts, but in my opinion non examination of the Complainant has not been proved fatal to the prosecution case as PW1Dilip who is an eye witness in this case has completely supported the prosecution case on all the aspects and has given a trustworthy version of happening. If the Complainant would have been the only witness to prove the allegations against the accused, then the scenario might have been different, but in this case, another eye witness namely PW1Dilip (other than the Complainant) is also there, who has categorically proved all the allegations leveled against the accused beyond shadow of doubts. Hence, non examination of PW Raju did not weak the prosecution case as the statement of the PW Dilip along with medical record are sufficient to convict the accused for the alleged offences. Even the accused during his statement U/s 313 Cr. PC has also admitted the fact of causing accident by him and the said fact is sufficient to arrive at the conclusion that he only is the perpetrator of crime in this case. Further, the non examination of PWRaju Singh in this case is not fatal to the case of prosecution as the prosecution is not supposed to multiply witness after witness. In this regard, reliance can be taken on the case law titled as Birendra Rai Vs. The State of Bihar, AIR 2005 (SC) 1284 in which it was held that:
"Mere failure to examine all witnesses will not result in outright rejection of Prosecution case if witnesses examined by prosecution are found to be truthful and reliable".FIR No. 186/00 Page No. 14/18
Further, our own Hon'ble High Court in 2000, I AD (Delhi) 67, Manoj @ Manu Vs. State of Delhi has also categorically ruled that, "criminal justice should not be made casualty of wrong committed by the Investigation Officer."
16. On applying the aforesaid ratio on the given facts and circumstances, it can be empathetically ruled that the minor discrepancies or procedural laps, if any, has to be ignored as the criminal justice system should not be made casualty of wrong committed by the Investigation Officer or any other related official.
Hence, it is very much clear that in the present case direct evidence has appeared against the accused in respect to the offence punishable U/s 279/338 IPC as PW1Dilip has given very clear, categoric and trustworthy version of happening and there is nothing on the record to falsify his statement.
The Hon'ble Supreme Court of India in 2005VIII (AD) (SC) 37 in A.N.Venktesh Vs. State of Karnataka has clearly ruled that, "The circumstances cumulatively taken together leads to the only irresistible a conclusion that the accused alone are the perpetrator of Crime"
On applying the aforesaid ratio in the present case, it is crystal clear that accused Om Prakash is perpetrator of crime in this case.FIR No. 186/00 Page No. 15/18
17. Under the aforesaid discussion, it can safely be concluded that the Prosecution has successfully proved a case against the accused Om Prakash for the offences U/s 279/338 IPC as all the ingredients of offences punishable U/s 279 & 338 IPC have clearly appeared against the accused in this case. Consequently, the accused Om Prakash is hereby convicted for the offence U/S 279/338 IPC.
18. Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof.
19. The file be consigned to record room.
Announced and dictated in the open court today i.e. on 27.01.2012 Sunil Kumar MM/Rohini Courts Delhi/27.01.2012.
FIR No. 186/00 Page No. 16/18 In the Court of Sh. Sunil Kumar, MM, Rohini District Courts, Delhi State Vs. Om Prakash FIR No. 186/00 U/s 279/338 IPC PS Jahangir Puri 04.02.2012.
O R D E R O N S E N T E N C E
Present: APP for the State.
Convict Om Prakash in person with Ld. Counsel
Sh. Kashmere Singh.
Arguments on point of sentence heard from learned APP for the State and learned Counsel for the Convict.
It is argued by the learned Counsel that the Convict is an aged person of around 60 years of age who belongs to the poorer section of the society & having large family to support. It is further argued that the Convict is sole bread earner of his family and his whole family will come at the edge of starvation if the Convict is awarded substantive punishment. The conduct of the Convict during the trial also remained good and there is no complaint from any quarter. It is further argued that the Convict is the first offender and he is facing agony of trial for last about 12 years. It is, therefore, prayed that seeing the pathetic condition of the family and totality of circumstances a lenient view may be taken against the Convict while awarding sentence to him.
Per contra, learned APP for the State argued that no leniency may be shown to the Convict & he may be punished with maximum sentence as prescribed under the law.
In view of the submissions and considering the facts & circumstances and particularly considering the age, economic condition of the Convict and the fact that the Convict is facing trial from last about 12 years, the Court is of the view that the interest of justice would met if a lenient view is FIR No. 186/00 Page No. 17/18 taken against the Convict in this case.
Contd.../ 2 Consequently, the Convict Om Prakash is sentenced till the rising of the court with fine of Rs. 1000/ for the offence U/s 279 IPC and further with fine of Rs. 1000/ for the offence U/s 338 IPC.
Total fine of Rs. 2000/ paid by the Convict vide receipt No. 975207, dated 04.02.2012.
His Bail bond stand cancelled. Surety is discharged. Original documents of the surety as well as of the accused, if any, be released to them under receipt after cancellation of endorsement, if any, as per procedure. Superdarinama, if any, stands cancelled.
A copy of Judgement and order on point of sentence be given free of cost to the Convict.
Order accordingly.
Announced and dictated in the open court today i.e. on 04.02.2012.
(Sunil Kumar) MM/Rohini Courts Delhi/04.02.2012.
FIR No. 186/00 Page No. 18/18