Delhi District Court
State vs . Bundu Khan on 10 April, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE03, NORTHEAST
KARKARDOOMA COURTS, DELHI
Presided by Nitish Kumar Sharma
Challan filed on: 30.10.2003
Final arguments heard on: 18.03.2023
Judgment announced on: 10.04.2023
F.I.R. No. : 166/2003
Police Station: Dilshad Garden
State Vs. Bundu Khan
U/S 279/337/304A/471 IPC & Section 3/181 of MV Act
(a) Case ID number/CR No. : 463272/2015
(b) Date of commission of the offence : 21.07.2003
(c) The name of the complainant : Sh. Anurag Saxena S/o Sh. Om
Prakash Saxena, R/o Flat No.57,
Pocket D, Dilshad Garden, Delhi.
(d) The name of the accused, parentage : Bundu Khan S/o Jaban Khan,
and residence R/o Mohalla Ram Nagar, Islam
Nagar, Thana Aurangabad,
District Bulandsher, UP.
(e) Charge framed : Under Section 279/ 337/
304A/ 471 IPC & Section
3/181 of MV Act
(f) The plea of the accused : Pleaded not guilty
(g) The final order : Convicted
(h) The date of such order : 10.04.2023
(i) State represented by : Ld. APP for the State.
(j) Accused represented by : Ld. counsel for accused.
FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 1 of 20
JUDGMENT
FACTUAL BACKGROUND
1. The accused namely Bundu Khan here in this case was sent to trial by the State for the offence punishable under section 279/337/304A/471 IPC & Section 3/181 of MV Act.
2. Pithily put, the case of the prosecution is that on 21.07.2003 at about 7:55 AM at Road No.64 in front of Nursery, Dilshad Garden, Delhi, within jurisdiction of PS Dilshad Garden, the accused was found driving a truck bearing No. UP-25G-9460 in a manner so rash or negligent as to endanger human life and personal safety to others and while driving the aforesaid vehicle in aforesaid manner the accused struck against a scooter bearing No. DL-5SC-8438 from its backside and thereby caused death of Master Anmol Saxena & simple injuries to body of Akanksha and upon apprehension, the driving license found from accused was revealed to be a forged documents and thereby committed offences punishable u/s 279/337/304A/471 IPC & Section 3/181 of MV Act. Therefore, the present FIR was registered for the offences punishable under Section 279/337/304A/471 IPC & Section 3/181 of MV Act in PS Dilshad Garden. Investigation was taken up by Investigating Officer.
3. Upon completion of investigation, chargesheet under Section 173 of Cr.PC was filed on behalf of Investigating Officer and the accused was consequently summoned.
FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 2 of 20 PROCEEDINGS BEFORE COURT
4. The accused was called upon to enter trial and after his appearance, the copy of the relevant documents were furnished to the accused. Upon hearing both sides and on perusal of the case record, the notice was framed u/s 279/337/304A/471 IPC & Section 3/181 of MV Act and particulars of offences under section 279/337/304A/471 IPC & Section 3/181 of MV Act was read over and explained to the accused in vernacular to which he pleaded not guilty and claimed to be tried.
PROSECUTION EVIDENCE
5. PW1 Sh. Anurag Saxena deposed that on 21.07.2003 at about 7:45, he alongwith his daughter Akanksha and his son Anmol (deceased) were going to HDP School, Dilshad Garden on his scooter bearing No. DL-5SC-8438 and when they reached near nursery, GTB hospital red light, one truck bearing No. UP-25G-9460 came in rash and negligent manner and hit against his aforesaid scooter due to which he alongwith his children fell down on the road and got injured and were taken to GTB hospital where his son was declared brought dead. He further deposed that the accused was driving the truck in a zig-zag manner without caring for other vehicles on the road. Accused was correctly identified by the witness. He deposed that police seized the offending truck and scooter and IO arrested accused and prepared site plan at his instance.
The witness was cross-examined by Ld. counsel for accused but the same is not repeated herein for sake of brevity. FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 3 of 20
6. PW2 Sh. Virender Bhatnagar deposed that on 21.07.2003, he came to know about the accident and he identified the dead body of his nephew namely Anmol and obtained dead body of deceased Anmol from mortuary of GTB hospital.
7. PW3 Sh. CM Thomas deposed that on the day of incident, he saw one truck hit against one scooter on which one person and two children were going and due to which the scooter fell down and he stopped his car and had taken the boy to GTB hospital in his car.
8. PW4 Ct. Yashpal Singh deposed that on 21.07.2003, he alongwith IO reached nursery Road No.64 Dilshad Garden, Delhi where one truck bearing No. UP-25G-9460 was found in accidental condition and he came to know that injured persons were taken to GTB hospital and accused was apprehended by PCR officials and who handed over accused to IO. He deposed that IO went to hospital & came back to the spot after some time and prepared rukka upon which he got the FIR registered. Thereafter, IO arrested accused and conducted his personal search. The accused was correctly identified by the witness in the court.
9. PW5 W/ASI Nirmal deposed that on 21.07.2003, a wireless message was received at PS Dilshad Garden and wireless operator got the DD No.5B dated 21.07.2003 recorded. At about 9:40 AM, Ct. Yashpal Singh came to PS with rukka sent by ASI Nawal Singh and handed over the same to him. He made endorsement on rukka and recorded the present FIR.
FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 4 of 20
10. PW6 Vijender Singh deposed that on 21.07.2003, his truck was being driven by the accused Bundu Khan (accused was correctly identified by witness in the court).
11. PW7 Manohar Lal Dhyani deposed that on 21.07.2003, he conducted the mechanical inspection of truck bearing No. UP-25G-9460 as well as scooter make Bajaj bearing No. DL-5SC-8438 at the request of IO at PS Dilshad Garden. His detailed reports are Ex.PW7/A and Ex.PW7/B respectively.
12. PW8 Dr. Arvind Kumar deposed that on 21.07.2003, ASI Naval Singh of PS Dilshad Garden gave him request to conduct the postmortem of deceased Anmol Saxena S/o Anurag Saxena aged about 10 years. He conducted the postmortem. His detailed postmortem report is Ex.PW8/A. He further deposed that the cause of death was hemorrhagic shock due to antemortem injury to pelvis and long bone and internal organ produced by blunt force impact.
13. PW9 Ct. Ashok Kumar deposed that on 21.07.2003 at about 7:55 AM, he saw a truck bearing No. UP-25G-9460 was coming from the side of Tahirpur and going towards IHBAS Hospital on a very high speed and it was being driven in rash and negligent manner and hit against scooterist from back side due to which the children sitting on scooty fell down on the road and got injured. The injured persons were taken to GTB hospital. The accused was apprehended while he was running away and he revealed his name as Bundu Khan (accused was FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 5 of 20 correctly identified by the witness in the court). ASI Naval Singh came to the spot and they handed over accused to ASI Naval. He deposed that ASI Naval Singh also recorded his statement.
14. PW10 Retd. SI Naval Singh deposed that on 21.07.2003, after receiving DD No.5B, he went to the spot alongwith Ct. Yashpal and the accused alongwith truck bearing No. UP-25G-9460 and scooter bearing No. DL-5SC-8438 were found there. He deposed that HC Ram Lal informed him that injured persons were taken to GTB hospital and thereafter he went to GTB hospital after directing Ct. Yashpal to preserve the spot. He deposed that in GTB hospital, he collected MLC of three injured persons namely Anurag, Akanksha and Anmol (brought dead). He deposed that he recorded the statement of injured Anurag and came back to the spot with him and prepared the rukka. He deposed that the accused was identified at the spot by complainant Anurag. He deposed that he prepared site plan at the instance of complainant and after return of Ct. Yashpal with copy of FIR, he seized the offending truck and scooter. He deposed that he interrogated the accused and arrested him and had got his personal search conducted. He deposed that complainant identified the dead body of deceased and identification memo was prepared in this regard. He deposed that after getting the postmortem conducted, dead body was handed over to the father of deceased. He deposed that he got the offending truck and scooter mechanically inspected and collected postmortem report from GTB hospital. He deposed that the driving license of the accused was sent to concerned authority for verification which replied that no such license was given by the authority. He FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 6 of 20 deposed Section 468/471 IPC were added by him. After completing the investigation, he filed the chargesheet in the court.
15. PW11 Sh. Tushar, ARTO Office, Bulandsher, UP brought the register of driving license record from Serial No. T-4397 to 4802 in which DL no. UP-1320000004598 was issued in the name of one Ravinder Singh S/o Sh. Rajvir Singh.
16. I have heard the rival submissions from Ld. APP for State as well as counsel for accused and meticulously perused the record.
REASONS FOR DECISION
17. In the present case, prosecution has examined 11 witnesses in total to prove its case against the accused Bundu Khan. Before appreciating the evidence on record, it is important to examine the necessary ingredients for offence under Section 279/337/304-A IPC which are as follows:-
(1) That the accident actually took place. (2) That the accident took place due to rash and negligent driving.
(3) That the accused was the person who was driving the vehicle at the relevant time.
18. That words i.e. "rash" and "negligent", have not been defined in the Indian Penal Code. However, as per Blacks Law FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 7 of 20 Dictionary, Eighth Edition the work 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstance.
Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by H.L.A. Hart in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently.
"[A] careful consideration is needed of the difference between the meeting of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. We are referring to the fact that the agent failed to comply with a standard man could and would have complied:
a standard requiring him to take precautions against harm. The work 'negligently', both in legal and non FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 8 of 20 lelgal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
19. The Oxford Advances Learner's Dictionary, Sixth Edition defines 'Rash' as doing something that may not be sensible without first thinking about the possible results.
Elaborating further, in State of H.P. V. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 02.06.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression "rashness" and "negligence" held as follows:
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequence. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or an individual."
20. The distinction has been very aptly pointed out by Holloway, J. in these words:
FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 9 of 20 "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 precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon his and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection." (see in Re: Nidamorti Nagabhushanam 7 Mad. HCR 119)".
21. It is the case of the prosecution that accused Bundu Khan while driving his Truck bearing No. UP-25G-9460 (hereinafter referred to as offending vehicle) in a rash and negligent manner hit against Scooter of injured Anurag and caused death of his child Anmol & caused injuries to Akanksha and thus he committed offences punishable under Section 279/337/304A IPC.
22. In this regard, the prosecution is supposed to first prove that the offending vehicle was being driven by the accused namely Bundu Khan. Testimony in this regard has been given by PW-1 Anurag Saxena who was driving the scooter when his scooter was hit by the offending vehicle which was allegedly driven by accused Bundu Khan. FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 10 of 20 PW-1 Anurag Saxena correctly identified accused Bundu Khan in the court. The fact that the offending vehicle i.e. Truck was being driven by the accused Bundu Khan is further proved by the statement of Ct. Ashok Kumar who was examined as PW-9 who stated that accused was apprehended while he was running away. PW-6 Vijender Singh i.e. owner of truck also deposed that on the date of incident accused was driving the offending truck.
23. In the written arguments filed on behalf of accused, it is admitted that the offending truck was being driven by the accused, though it is argued that accident was not caused by him. In such circumstances, the onus shifted upon the accused to prove in his defence that on the date of incident he was not driving the offending vehicle and he has not discharged that onus. Thus, it has been established that the offending vehicle being driven by the accused who tried to run away from the spot after accident.
24. Now it is to be seen whether the accident was caused on account of the rash and negligent driving of the accused. It is clear from the testimony of the PW-1 Anurag Saxena who was the injured himself, that his scooter was hit from behind as result of which he alongwith deceased Anmol & injured Akanksha fell down and sustained injuries. He even noted down the number of the Truck and identified the accused in the court. Injuries caused to his daughter & son have been substantiated vide MLCs Ex.A-1 and A-2 as per which the nature of injuries on Akanksha has been stated to be simple blunt and as per Ex.A- FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 11 of 20 2, deceased Anmol was declared brought dead. As per postmortem report Ex.PW8/A, the cause of death is stated to be haemorrhagic shock due to ante-mortem injury to pelvis & long bone, due to blunt force impact as well as clavicle fracture. Thus, it is clear that the deceased fell on the road as result of being hit from behind and the impact caused by the offending vehicle clearly resulted in the deceased falling on the road. The driver of the scooter and his daughter also fell down & sustained injuries. There is no further explanation on record which points out to any other explanation except the fact that accused was rash and negligent in his driving and hit the scooter of PW-1 Anurag from behind which resulted into the accident. The resultant death of the deceased Child Anmol has been proved by the postmortem report on record.
25. The testimony of the PW-1 Anurag Saxena is further corroborated by PW-9 namely Ct. Ashok Kumar who stated that on the date of incident he saw one Truck hit one scooter from back side and all passenger of scooter fell on the ground. Further, the Truck driver tried to run away from the spot. The accused was correctly identified by this witness. Another witness PW-3, stated that he saw that one truck had hit against one scooter and he took the deceased boy to GTB hospital in his car.
26. In any case testimony of a single eye witness is sufficient if it is trustworthy and coherent.
In the matter of State U.P. Vs Ballabh Das (AIR 1985 SC FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 12 of 20 1384) (1984 Cri LJ 2009) the Supreme Court in paras 3 and 5 at page 385 observed:-
"There is no law which says that in the absence of any independent witness, the evidence of interested witnesses should be thrown out at the behest or should not be relied upon for conviction an accused. What the law requires is that where the witness are interested, the court should approach their evidence with care and caution in order to exclude the possibility of false implication."
27. In the matter of State of U.P. Vs M.K. Anthony (Air 1985 SC 48): (1985 Cri LJ 493) the Supreme Court observed in para 10 at page 54:-
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once the impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiency, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general benor or the evidence given by the witness and whether the earlier evaluation of the evidence is FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 13 of 20 shaken as to render if unworthy of belief. Even honest and trustful witness may differ in some details unrelated to the main incident because power of observation, retentions and reproduction differ with individuals."
28. Further, in the matter of "Shivaji Sahabrao Bobade and Anr. V. State of Maharashtra (1973) 2 SCC 793 (three Judge Bench) 1973 Cri LJ 1783 : AIR 1973 SC 2622, Para 19" it has been observed that:-
"....Even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence Courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs...."
29. The case property being the offending vehicle i.e. Truck and the scooter were not disputed by the accused.
30. The remaining details as regards the investigation carried out by the police officials have been stated by the PW-10 Retd. SI Naval FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 14 of 20 Singh wherein he has proved his signatures on various documents as seizure memo, site plan, seizure memo of Truck, seizure memo of RC of Truck, driving licence of accused seized vide memo etc.
31. Thus, it is clear from the testimony of the PW-1 Anurag who was also one of the injured himself & father of deceased and the testimony of the PW-9 Ct. Ashok, who were the eye witness that the accident took place due to rashness and negligence of the driver of the offending vehicle. The fact that the accused was driving the offending vehicle has already been proved as discussed above. The factum of accident has already been proved. It has already been proved that the simple injuries being caused to Victim Akanksha and death of deceased Anmol Saxena was also caused. Thus, there is sufficient material on record to prove that the offence under Section 279/337/304A IPC was committed by accused Bundu Khan.
32. In case of Sharad Birdhi Chand Sharda Vs. State of Maharastra AIR 1984 SC 1622, the apex court had laid down the test which are per-requisites before conviction should be recorded, which are as under:-
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(2) The circumstances concerned "must or should" and not "may be" established; (3) The facts so established should be consistent FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 15 of 20 only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(4) The circumstances should be of conclusive nature and tendency;
(5) They should exclude every possible hypothesis except the one to be proved; and (6) There must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and must so that in all human probability the act must have been done by the accused.
33. Thus, considering the above mentioned reasons, the prosecution has been able to prove its case beyond reasonable doubt qua offence U/s 279/337/304A IPC.
As regards the offence u/s 471 IPC and 3/181 MV Act, it is noted that as per the record, the driving license of the accused was seized vide seizure memo Ex.PW1/E. It had been submitted by Ld. Counsel for the accused that the said document was not recovered from the accused and that the accused had produced his valid driving license to the IO who had refused to accept the same. In cross examination PW10 deposed that he had seen the driving license of the accused at the spot and no suggestion was given to him to the contrary. PW4 deposed in his FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 16 of 20 examination in chief that the driving license of the accused was seized vide Ex.PW1/E and he identified his signatures on the same at point B. Not a single question was put to PW4 regarding the seizure memo Ex.PW1/E in cross examination.
34. PW10 had deposed that he had seized the driving license of the accused vide seizure memo Ex.PW1/E. PW10 was cross examined extensively but even in his cross examination, no question has been put to him regarding the seizure of the driving license of the accused vide Ex.PW1/E. He also deposed that he went to the Transport Authority, Bulandsheher to get the driving license of the accused verified and PW- 11 proved the report Ex.PW11/A as per which the driving license was actually issued in the name of one Ravinder Singh. He was not subjected to any cross examination.
35. As per the counsel of the accused, he was in possession of his original / genuine driving license but the same was not accepted by the IO. The accused did not lead any evidence to support his claim. He did not take any steps to get the records of his stated driving license summoned from the concerned authorities.
36. In the case of Gian Chand v. State of Haryana reported in (2013) 14 SCC 420 the Hon'ble Supreme Court was pleased to refer to the law on the said question and hold as under:-
FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 17 of 20 "The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross-examination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery.
But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
37. It was further observed by the Hon'ble Supreme Court in the case of Gian Chand v. State of Haryana that the presumption prescribed under section 114 of the Evidence Act regarding official acts having been performed regularly was attracted to the acts of the police. Such presumption was rebuttable and the onus to rebut the same would be on the accused.
FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 18 of 20
38. The ratio laid down by the Hon'ble Supreme Court applies squarely to the present case. A presumption arises in respect of the driving license of the accused having been seized vide Ex.PW1/E. The said driving license had been found to be forged. The accused did not lead evidence in respect of having a genuine driving license which was stated to be in his possession but not accepted by the IO. Whether the signature of the accused on Ex.PW1/E was there or not, would not lead to any inference in his favour. In these facts and circumstances, the only inference which could have been arrived at was that the driving license of the accused was seized vide Ex.PW1/E which upon investigation was found to be forged. It is not the case of the accused that the records in respect of the said driving license produced by PW11 and as verified by PW10 were incorrect in any manner. Hence, the prosecution has been able to prove that the driving license of the accused seized from him was a forged document.
39. In the present case, the accused was apprehended at the place of the incident. His driving license was recovered at the spot vide memo Ex.PW1/E. The question which arises is whether the accused had put the driving license recovered from him to any use. It is not in dispute that the accused was driving the vehicle (as discussed above). No person is permitted to drive any motor vehicle without having any valid driving license. The accused was driving the said vehicle and the driving license in question was recovered from him. There is no other manner in which the driving license could have been used by the accused as he was found to be in possession of the same while driving the said vehicle. In these FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 19 of 20 circumstances, in the opinion of this Court the accused had put his driving license to use within the meaning of Section 471 of the IPC.
40. Thus, in light of aforesaid discussion, the court is of the view that the prosecution has successfully proved its case against the accused by leading reliable witness and cogent evidence. The accused Bundu Khan is accordingly convicted for the offence u/s 279/337/304A IPC as well as for offence u/s 471 IPC & 3/181 of Motor Vehicle Act. Ordered accordingly.
Digitally signed by NITISH NITISH Date:
2023.04.10
Announced in the open court 16:57:05 +0530
on 10.04.2023
(Nitish Kumar Sharma)
Metropolitan Magistrate-03,
North-East, Karkardooma Courts, Delhi
FIR No. 166/2003 State Vs. Bundu Khan PS: Dilshad Garden Page no. 20 of 20