Delhi District Court
Suresh By Suresh vs The State (Nct Of Delhi) on 31 January, 2020
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS
NEW DELHI
CA No. 633 of 2019 Digitally signed
SURESH by SURESH
Ashok Kumar KUMAR
KUMAR GUPTA
Date:
S/o Sh. Mohan Lal
R/o Vill. Sakrod
GUPTA 2020.02.03
16:03:57 +0530
PS, Khekra,
Distt. Baghpat, UP .......... Appellant
Vs.
The State (NCT of Delhi) .......... Respondent
Instituted on : 19.12.2019
Argued on : 22.01.2020
Decided on : 31.01.2020
JUDGMENT:
1 The appellant has assailed the judgment dated 11.11.2019 vide which he is convicted u/s 279/304A IPC and order on sentence dated 20.11.2019 vide which he is sentenced to undergo RI for one month for the offence u/s 279 IPC and RI for six months with fine of Rs. 10,000/ for the offence u/s 304A IPC. The fine be given to the LRs Ashok Kumar v. State - CA No. 633 of 2019 1 of 16 of the deceased as compensation and in default of payment of compensation, to undergo SI for one month.
2 The appeal is filed on the grounds that no public person has been associated by the police. The negatives of the photographs are not placed on record. The date and time are not ascertainable from the photographs on record. PW1 is not an eye witness as he does not know the number of the bus and her signatures are not on the arrest and personal search memos. The mechanical inspection report has been prepared in a mechanical manner. The police have solved a hit and run case. The material witnesses qua FIR, MLC, PMR and mechanical inspection report have not been examined for the reasons best known to the prosecution. He has not admitted any document. Hence, this appeal.
3 The notice of the appeal is issued to the prosecution. 4 The facts of the case are like this. Complainant Savita gave her statement to the police with the allegations that she has three children. Her daughter Laxmi is 8 years old. On 1.12.2014 at 1.45pm she Ashok Kumar v. State - CA No. 633 of 2019 2 of 16 alongwith her daughter Laxmi was going from Rain Basera towards Gurgaon Bus Stand, Sarai Kale Khan, New Delhi. One DTC bus bearing registration No. DL1PC7685 came from Ashram Chowk side towards ITO in a high speed and hit against Laxmi who fell down and sustained injuries. The bus driver was apprehended on the spot with the help of public persons who disclosed his name as Ashok Kumar (i.e. appellant). The accused has taken place due to the rash and negligent driving of bus by the appellant. The appellant was handed over to the police. Her statement was recorded which led to registration of FIR. Investigation was carried out. Charge sheet u/s 279 and 304A IPC is filed against the appellant. 5 Notice of accusation was framed for offence u/s 279/304A IPC against the appellant who pleaded not guilty and claimed trial. The prosecution has examined 3 witnesses. The appellant has admitted FIR, DD No. 15, 19, 21, MLC and PMR of deceased Laxmi, Statement of Bablu Khan who received the dead body of deceased, Superdarinama of bus, photographs of the bus, mechanical inspection Ashok Kumar v. State - CA No. 633 of 2019 3 of 16 report Ex.PA1 to PA9 and Ex. P1 u/s 294 CrPC. His statement to this effect was recorded.
6 The appellant was examined u/s 313 Cr.PC. His defence is that he was driving the offending vehicle at the said date and time. He was neither rash nor negligent. He has not caused the death of Laxmi. He has examined himself as DW1.
7 Ld. Trial court after hearing the Ld. APP, Ld. Defence Counsel and perusing the record has convicted and sentenced the appellant. 8 PW1 Ms Savita is the complainant and mother of deceased. She stated that she is illiterate. She does not remember the exact date and month of incident but it was in 2014. She alongwith her daughter Laxmi aged 8 years was crossing the road from Rain Basera towards Gurgaon Bus Stand, Sarai Kale Khan. It was around 2pm. They have crossed half of the road. One DTC bus of route no. 534 came from Ashram side towards ITO and hit against Laxmi who sustained injuries and expired on the spot. The driver/appellant was driving the vehicle in a high speed who was apprehended on the spot by the Ashok Kumar v. State - CA No. 633 of 2019 4 of 16 public. She has seen him on the spot. She has identified the appellant. She has called the police. Police removed her daughter to AIIMS Trauma Centre. She accompanied the deceased to hospital where she was declared brought dead. Police inquired from her in the hospital and recorded her statement Ex. PW1/A which bears her thumb mark at point A. The place of occurrence was shown by her to the police by her. Site plan was prepared by the police. She had taken the dead body of her daughter vide memo Ex. PW1/B. 9 Leading questions were put her with permission of the court. 10 She admitted that on 1.12.2014 accident has taken place and number of the bus is 7685. Photographs Ex.P1 of the bus are shown to her who has identified the same. The identity of the bus is not disputed. During crossexamination by the appellant, she stated that she was running a tea stall on the foot path at Sarai Kale Khan. The accident has taken place at 1pm. There are no traffic signal and zebra crossing at the place of accident. She stayed in hospital for 2 hours when she was told that her daughter has expired. The police have met Ashok Kumar v. State - CA No. 633 of 2019 5 of 16 her after 12 days of the accident. The police have come to Rain Basera, Sun Light Colony to meet her and she did not visit the spot in between. The bus number was not told by her to the police but only route no. 534 from Mehrauli to Anand Vihar was told to the police. The place of incident is frequented by public persons. There are shops near the place of incident. The grills are fixed on left side of the road. There is no grill on the side where the accident has taken place. She admitted that pedestrians stand on the road where accident has taken place. The road was not crowded at that time. The suggestion is denied that accident took place due to the negligence of her daughter or appellant was not responsible for the accident as her daughter was running on the road or that accident did not take place with the bus being driven by the appellant. She admitted that she alongwith her daughter was taken to hospital in PCR after the accident. The bus was at police chowki when she came back at around 5pm at Rain Basera, Sun Light Colony, New Delhi.
11 PW2 B. L. Jha (retired) stated that the DTC bus no. DL1PC Ashok Kumar v. State - CA No. 633 of 2019 6 of 16
7685 was taken on superdari by him by executing superdarinama Ex. PA8 as he was authorized by Depot Manager vide Ex PW2/B. Ex. P1(Colly) are the photographs of the bus.
12 PW3 SI Shailender Singh is IO of the case. He stated that on 1.12.2014 at 2.10 pm DD No. 15 PP about the accident was received by him upon which he alongwith Ct. Devender went at U turn for Gurgaon, below Fly Over, Sarai Kale Khan Bus Stand where bus No. DL1PC7685 was found. The appellant was apprehended by public persons and mother of the child. He was informed that victim has been taken to hospital. He went to AIIMS Trauma Centre by leaving Constable on the spot. Ct. Vipin met him who handed over the MLC of the child to him. No eye witness was in the hospital. He was informed that child has expired and DD no. 21 has been recorded. The body of the child was sent to mortuary. He came back to the spot where mother of the child met him. Her statement was recorded on which endorsement Ex. PW3/A was made and sent to PS through Ct. Devender for registration of the case who came back after registration Ashok Kumar v. State - CA No. 633 of 2019 7 of 16 of case with copy of FIR. He has prepared site plan Ex. PW3/B at the instance of Savita. The bus was taken into possession vide memo Ex. PW3/C. The appellant was arrested whose personal search and arrest memos Ex. PW3/D and E were prepared. He was admitted to bail. The postmortem on the body of child was got conducted. The dead body was handed over to LRs of deceased. The documents of bus were got verified. The bus was released on superdari. Statement us/ 161 CrPC were recorded. Ex. P1(Colly) are the photographs of the bus. During crossexamination he admitted that there are shops at some distance from the place of incident. The accident has taken place just ahead of point A shown in site plan Ex. PW3/B. Some hawkers were present at point A. The accident has taken place at U turn shown in the site plan Ex. PW3/B. There is no zebra crossing. The suggestion is denied that public persons told him that child was at fault or accident did not take place due to mistake of the appellant.
13 Ld. Counsel for the appellant submitted that accident has not taken place with the bus being driven by the appellant. He further Ashok Kumar v. State - CA No. 633 of 2019 8 of 16 submitted that there is no evidence on record with respect to the speed of the bus or how he was rash and negligent while driving the bus. He further submitted that PW1 is not an eye witness who is planted later on by the police to solve the hit and run case. He further submitted that he has not admitted the documents u/s 294 CrPC. 14 Ld. Addl.PP for the State submitted that appellant has hit his bus against the deceased on a straight road which itself is a factum of negligent driving even if, the evidence of high speed has not come on record. He further submitted that PW1 has fully corroborated the case of prosecution on the material aspects and Ld. Trial Court has rightly appreciated the evidence and convicted the appellant. 15 Heard and perused the record.
16 PW1 is an eye witness. Her testimony clearly shows that on 1.12.2014 at about 2pm she alongwith her deceased Laxmi was crossing the road from Rain Basrea Side towards Gurgaon Bus Stand, Sarai Kale Khan. Her presence at the spot is nowhere disputed during the course of her crossexamination meaning thereby that her presence Ashok Kumar v. State - CA No. 633 of 2019 9 of 16 on the spot stands admitted.
17 It is admitted by the appellant that he was driving the bus at the relevant date, time and place. The factum of driving the bus is an admitted fact so it is immaterial whether complete registration number of the bus was given by PW1 to the police or not.
18 It is clear from the testimony of PW1 that they have crossed half of the road. The appellant was driving the bus in question. He came from Ashrak Chowk side towards ITO and hit against the deceased who fell down and sustained injuries. The appellant was apprehended on the spot by the public.
19 The appellant has taken the defence that accident has not taken place with his bus and moreover deceased herself was negligent who was running on the road. He has examined himself as DW1 to show that accident has not taken place with his bus and he was stopped by the police on the spot.
20 The defence does not inspire confidence. The conductor remains in the bus. He could have examined the conductor of the bus Ashok Kumar v. State - CA No. 633 of 2019 10 of 16 in order to show that accident has not taken place with his bus. No passenger of the bus or even the police official who allegedly stopped his bus has been examined to advance his defence. No complaint was given to the Depot Manager that accident has not taken place with his bus. No explanation to this effect is coming on record. It shows that his defence is an after thought which is without any merits. 21 The factum of negligent driving can be drawn from the entire evidence on the record. A person who drives a vehicle on the road is liable to be held responsible for his act and its result. The negligence means omission to do something which a reasonable and prudent person would do. The driver has to take reasonable care and precaution while driving the vehicle. The person behind the wheels is under an obligation to take care of the persons crossing the road. He is under an implicit duty that his driving does not endanger the life of any person. He should have driven the vehicle in such a fashion that his vehicle should not hit the other vehicle or person on the road. 22 PW1 alongwith deceased was crossing the road. Site plan Ex.
Ashok Kumar v. State - CA No. 633 of 2019 11 of 16 PW3/B shows that road under fly over is straight. There is U turn under the Fly Over for going towards Gurgaon Bus Stand, Sarai Kale Khan. The accident has taken near U turn. It has come in evidence that road is frequented by the public persons. There is bus stop on the other side of the road. There was stalls/shops near the place of occurrence. It was the duty of the appellant to lower down the speed at such a place. 23 Moreover, the deceased was visible to him as the road is straight and accident has taken place in the after noon. It is not the case of the appellant that deceased has suddenly come in front of his bus. The appellant failed to stop the offending bus in time which corroborates the fact that he was driving the vehicle in a negligent manner. It shows that appellant has not taken reasonable care and precaution while driving the vehicle on a public carriage way. The manner of the accident itself show that appellant was driving the bus in a negligent manner.
24 The postmortem report Ex.PA6 of the deceased shows that she has sustained number of injuries on her body. The injuries are possible Ashok Kumar v. State - CA No. 633 of 2019 12 of 16 by the heavy blunt force impact. She has sustained injuries and succumbed to the injuries. Postmortem report corroborates the fact that injuries on the body of deceased were the result of accident. 25 There are few contradictions on record in the testimony of PWs. PW1 has given her statement Ex. PW1/A to the police which shows that she alongwith public persons has handed over the appellant to the police. She has not deposed while appearing as PW1 that appellant was handed over by her to the police. The testimony of PW3 does not show that PW1 has handed over the appellant to him on the spot. It is clear that testimony of PW1 and 3 is not in sync with the statement Ex. PW1/A which shows that appellant was handed over to the police by PW1. To my mind, this contradiction is minor in nature which is bound to come with lapse of time. This in no way, put any impact on the merits of the case.
26 PW1 has seen the accident. The appellant was apprehended on the spot. PW1 will not falsely implicate the appellant or substitute a wrong person in place of real offender. She will not allow the real Ashok Kumar v. State - CA No. 633 of 2019 13 of 16 culprit to go scot free. There is no evidence of enmity on record. No major contradiction is brought on record by the appellant to bring her testimony into zone of doubt. To my mind, there is nothing on the record to cast aspersion on her testimony. She has given details of the accident and entire facts show that accident has taken place with the vehicle being driven by the appellant in a rash and negligent manner. The accident has taken place due to rash and negligent driving of the appellant. Support is drawn from Paras Nath v. State of Delhi 107 (2003) DLT 169 and Jeet Lal v. State ILR (2010) Supp. 4 Delhi 558. 27 The entire evidence on the file shows that appellant was driving the bus in rash and negligent manner and hit against the deceased who sustained injuries and succumbed to the injuries. 28 Ld. Trial Court has properly appreciated the facts and the evidence on record. I do not find any infirmity in the judgment dated 1.11.2019 passed by the Ld. Trial Court.
29 Ld. Counsel for the appellant submitted that appellant is 50 years old who has a large family to support including 5 children. He Ashok Kumar v. State - CA No. 633 of 2019 14 of 16 further submitted that elder son of the appellant is handicap and mother is bed ridden. He further submitted that appellant is the sole bread earner of the family and any substantive sentence will affect his family. He further submitted that appellant be released on the probation of good conduct and even the Court can grant compensation to the family members of the deceased.
30 Ld. Addl. PP for the State has urged to the contrary. 31 One child has lost her life. The appellant was driving DTC bus. The deterrent punishment is more important in road accident cases so that persons who ply the vehicles on the road must bear in mind that they will have to face serious consequences including conviction and imprisonment in case of fatal accident. The appellant cannot claim sympathy because a person who plays with fire cannot complain of burnt fingers. The leniency is in such like cases will do injustice to the family members of the deceased. A stern message has to be given to the society. To my mind, there is no ground to take a lenient view as Ld. Trial Court has already passed the sentence u/s 279/304A IPC Ashok Kumar v. State - CA No. 633 of 2019 15 of 16 which is on the lower side.
32 I do not find any infirmity or perversity with respect to the conviction recorded u/s 279/304A IPC and sentence imposed u/s 279/304A IPC. The conviction and sentence u/s 279/304A IPC are upheld. Both the sentences shall run concurrently. 32 The appeal is dismissed. The appellant is taken into custody in order to serve the sentence imposed by Ld. Trial Court. His warrant of commitment be prepared and sent to Superintendent Jail, Tihar, New Delhi.
33 Attested copy of the judgment be supplied to the appellant free of cost.
34 TCR record alongwith copy of the judgment be sent to the Ld. Trial Court.
35 Appeal file be consigned to record room.
announced in the open court on 31st January, 2020 (SURESH KUMAR GUPTA)
Additional Sessions Judge04 & Spl. Judge (NDPS) South East, New Delhi Ashok Kumar v. State - CA No. 633 of 2019 16 of 16