Delhi District Court
Dharmender Singh vs The State on 5 May, 2018
1
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, WEST,
TIS HAZARI COURTS, DELHI
Crl. Appeal No. 12/2/17
U.I.D. No. 61/2017
P.S. Hari Nagar
Dharmender Singh
S/o Sh. Bans Bahadur Singh
R/o FII/246, Mangolpuri,
Delhi. .....Appellant
Versus
The State
Govt. of NCT of Delhi .....Respondent
Date of filing: 28.02.2017
Date of arguments: 04.04.2018
Date of order: 05.05.2018
UID No.61/17 Dharmender Singh Vs State 1 of 16
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JUDGMENT
05.05.2018
1. The present criminal appeal is filed by the appellant/convict under Section 374 of Code of Criminal Procedure (hereinafter referred as Cr.P.C.) against the impugned judgment dated 25.07.2016 and order on the sentence dated 15.02.2017 passed by the court of Sh. Ajay Kumar Malik, Ld. Metropolitan Magistrate02, West, Tis Hazari Courts, Delhi whereby Ld. Trial Court convicted the appellant for commission of offence punishable under Section 279 & 337 and 304A IPC.
2. The present case FIR bearing no. 221/11, was registered in Police Station Hari Nagar on 22.05.2011 for commission of the offence punishable under Section 279/337 and 304A IPC on the statement of complainant SI Gyan Prakash. It is alleged that on 22.05.2011 at about 4.30 AM near Rajeev Motor Picket, Jail Road, Hari Nagar, Delhi, the accused was driving a truck Eicher bearing No. DL1LN3379 in rash and negligent manner so as to endanger the human life and personal safety of others. UID No.61/17 Dharmender Singh Vs State 2 of 16 3 It is alleged that on the said date and time while driving the Eicher truck in rash and negligent manner, the accused hit against Ct. Hans Raj causing his death not amounting to murder and caused simple injuries to HC Digamber who were on picket duty. It is alleged that the appellant/accused has committed the offence under Section 279/337 and 304A IPC.
3. The police after completion of the investigation filed the chargesheet for commission of the offence punishable under Section 279/337/304A IPC. Notice under Section 251 Cr.PC was served upon the accused on 13.02.2012 to which he pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case has examined total 16 witnesses, i.e., PW1 SI Gyan Prakash, PW2 Sh. Vijay Shankar, Ld. ASCJ/JSCC/GJ, New Delhi, PW3 Ranjeet (Ex. Ct. Delhi Home Guard), PW4 Dr. Siddharth, PW5 HC Anil Kumar, PW6 SI Kuldeep Singh, PW7 HC Digamber Singh, PW8 SI Ajay Kumar, PW9 Baldev Singh, PW10 SI Ajay UID No.61/17 Dharmender Singh Vs State 3 of 16 4 Kumar, PW11 Devinder Kumar, retired ASI/Tech, PW12 Dr. Purendra Pratap Singh, PW13 Ct. Krishan, PW14 SI Bhagat Ram, PW15 SI Ram Avtar and PW16 Dr. Sanjay Rai. The statement of the accused under Section 313 Cr.PC was also recorded. The appellant/accused in his statement under Section 313 Cr.PC has admitted that he was driving the offending vehicle at the time of accident. However, it is denied that he was rash and negligent. It is stated that he has been falsely implicated in the present case. The accused stated that he wants to lead evidence but despite opportunity he did not lead any evidence.
5. The Ld. Trial Court after completion of trial, convicted the appellant/accused for commission of offence under Section 279/337 and 304A IPC vide judgment dated 25.07.2016. The accused was sentenced for commission of the alleged offence as under: a. The convict is sentenced to simple imprisonment for two years for the offence under Section 304A IPC, UID No.61/17 Dharmender Singh Vs State 4 of 16 5 b. The convict is sentenced to simple imprisonment for six months for the offence under Section 337 IPC and; c. The convict is sentenced simple imprisonment for six months for the offence under Section 279 IPC.
d. All the sentences of the convict shall run concurrently.
6. The appellant /convict being aggrieved by the judgment of the conviction dated 25.07.2016 and order of the sentence dated 15.02.2017 has filed the present appeal.
7. It is stated that the appellant/accused has been convicted on the basis of false and frivolous allegations. That only the PW5 and PW7 were cross examined by the earlier counsel for the accused out of total 16 prosecution witnesses. That there is clear negligence of the previous counsel by not cross examining the prosecution witnesses. It is stated that an application under Section 311 Cr.PC for recalling PW1, PW10 and PW14 filed by the previous counsel has been dismissed. That in view of the deposition of PW1 SI Gyan Prakash benefits of doubt needs to be given to the appellant/accused. That PW5 HC Anil Kumar examined by the Ld. APP for the State has stated that all negatives were not developed. That UID No.61/17 Dharmender Singh Vs State 5 of 16 6 PW9 has not identified the broken plastic pieces of the offending vehicle. It is stated that the Ld. Trial Court has failed to apply the judicial mind. That the appellant is the only earning member of his entire family. That the appellant/accused is not a habitual offender. It is prayed that in view of the ground of appeal, the judgment of conviction and order of the sentence may kindly be set aside and appellant/convict may kindly be acquitted.
8. In the present appeal, it is stated that total 17 prosecution witnesses were examined before the Ld. Trial Court but the previous counsel for the appellant/ convict has cross examined only PW5 and PW7 out of entire prosecution witnesses. The submissions of Ld. Counsel for appellant/convict in this regard is contrary to the record. The accused was represented by a counsel throughout the trial. The opportunity for cross examination was given to the counsel for accused in majority of the witnesses. The Ld. Counsel for the accused has cross UID No.61/17 Dharmender Singh Vs State 6 of 16 7 examined the material witnesses.
9. It is also pertinent to mention that the application under Section 311 Cr.PC moved by the accused for recalling of PW1, PW7, PW10 and PW14 was dismissed by the Ld. Trial Court vide detailed order. The Ld. Trial Court has observed that PW1 and PW10 had already been recalled but again those were not cross examined by defence counsel. The order regarding dismissal of the application under Section 311 Cr.PC was not challenged by the accused during the trial and the same has attained the finality. Therefore, the contention raised by Ld. Counsel for the appellant/convict in this regard is not tenable in the eyes of law.
10. It is contended by Ld. Counsel for the appellant/convict that there is contradiction in the deposition of PW1 SI Gyan Prakash, therefore, on the basis of such contradiction, the appellant is entitled for the benefit of doubt. The perusal of the deposition of PW1 SI Gyan Prakash revealed that there is no UID No.61/17 Dharmender Singh Vs State 7 of 16 8 material contradiction in his deposition. The PW1 has supported the story of prosecution on each and every count and no contradiction has emerged. The presence of PW1 SI Gyan Prakash is natural at the spot because he deposed that he was on night patrolling duty alongwith other staff and deceased. The presence of PW1 is corroborated with the testimony of other witnesses and the investigating officer who reached at the spot and recorded his statement. The another injured HC Digamber/PW7 has also corroborated the testimony of PW1 SI Gyan Prakash. The Ld. Counsel for the appellant/convict could not point out any material contradiction sustainable in the eyes of law to shake the credibility or trustworthiness of PW1 SI Gyan Prakash.
11. Ld. counsel for the appellant/convict has contended that PW5 HC Anil Kumar has deposed that "The negatives also contains photographs of the body of deceased which were not developed and not exhibited". The PW5 HC Anil Kumar has UID No.61/17 Dharmender Singh Vs State 8 of 16 9 proved the 20 photographs of the case property as Ex.P1 (colly). The negatives of the said photographs were also produced on record by PW5. The negatives also contained some other photographs which were not developed. This deposition does not show any contradiction in his deposition. The photographs proved on record as Ex.P1 (Colly.) and its negatives alongwith some other photographs are produced on record by the witness. Therefore, the same does not create any doubt upon the deposition of PW5 HC Anil Kumar.
12. It is also contended that PW9 has not supported the case of the prosecution as he had failed to identify the broken pieces of the offending vehicle. The PW9 Sh. Baldev Singh is the owner of the offending vehicle who proved the reply to notice under Section 133 MV Act served upon him. PW9 has specifically deposed that accused was driving the offending vehicle at the relevant date and time. It is true that PW9 could not identify the case property,i.e., red, yellow and black broken pieces of the UID No.61/17 Dharmender Singh Vs State 9 of 16 10 parts / lights of the offending vehicle. PW9 is not the eye witness of the incident. The above case property was also not seized in his presence. Therefore, failure to identify the said case property by PW9 is not fatal for the case of the prosecution.
13.The identity of the appellant/convict as driver of the offending vehicle is also corroborated with the deposition of PW9 Sh. Baldev Singh, owner of the offending vehicle who proved the reply to the notice under Section 133 MV Act served upon him. The identity of the accused is established by the prosecution by examination of both the eye witnesses, i.e., PW1 SI Gyan Prakash and PW7 HC Digamber. The accused was also identified by both the witnesses during judicial TIP. The judicial TIP is also proved on record by the prosecution by examining Sh. Vijay Shankar, the then Ld. Metropolitan Magistrate as PW2.
14.The story of the prosecution is that on 22.05.2011, SI Gyan UID No.61/17 Dharmender Singh Vs State 10 of 16 11 Prakash, HC Digamber and Ct. Hans Raj were performing the duty of checking by placing the barricades. That at about 4.30 AM, accused came at the spot while driving the truck bearing registration No. DL1LM3379 in rash and negligent manner and in a high speed and despite given signal to stop, he increased the speed of the vehicle and struck against the barricades and then against the police officials who were present on duty there. The accused had caused death of Ct. Hans Raj not amounting to murder and simple injuries upon HC Digamber.
15. The rash and negligent driving of the accused is also established by examination of PW1 SI Gyan Prakash and PW7 HC Digamber. Both the witnesses have specifically deposed about the rash and negligent driving of the appellant/convict. The manner of the accident itself shows that rash and negligent driving of the accused.
16.It is also not out of place to mention that the accused in his UID No.61/17 Dharmender Singh Vs State 11 of 16 12 statement under Section 313 Cr.PC has admitted that he was driving the offending vehicle at the relevant date, time and place. In view of the such admission by the accused, the contention regarding his absence from the spot at the time of accident is not tenable in the eyes of law.
17.The accused in his statement under Section 313 Cr.PC had admitted the accident but raised the defence that he was not rash and negligent. The rash and negligent driving of the accused has been established by the prosecution but the accused has failed to rebut the deposition of the witnesses regarding rash and negligent driving. The appellant/convict has failed to produce any evidence in support of his submissions that he was not driving in rash and negligent manner. Even the accused has failed to come into the witness box to prove his defence.
18. In view of the above discussions, I am of the considered opinion that there is no illegality or infirmity in the judgment of UID No.61/17 Dharmender Singh Vs State 12 of 16 13 conviction dated 25.07.2016. The Ld. Trial Court has rightly come to the conclusion that the prosecution is able to prove its case beyond reasonable doubt that the appellant/convict has committed the offence punishable under Section 279/304A/337 IPC. Accordingly, the appeal against the judgment of conviction dated 25.07.2016 passed by the Ld. Metropolitan Magistrate convicting the appellant/convict for commission of offence punishable under Section 279/304A/337 IPC is dismissed.
19. The Ld. counsel for the appellant/convict has contended that the appellant/convict is the sole bread earner in his family and belongs to a poor family. It is submitted that the appellant/convict is facing the trauma of trial since year 2011 and there is no record of commission of the repeat offence. Therefore, a lenient view may kindly be taken.
20. On the other hand, it is submitted by Ld. Addl. PP for the State / respondent that the appellant/convict has committed the UID No.61/17 Dharmender Singh Vs State 13 of 16 14 offence of rash and negligent driving whereby one valuable human life of police officer on duty was lost and another police official was injured. Therefore, strict view may kindly be taken.
21.The Hon'ble Apex Court, time and again has reiterated that a person who is driving a vehicle for commercial purpose must be cautious enough. Laws can never be enforced unless fear supports them. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutional established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective, from unwarranted hazards. No court should ignore the same being swayed by passion of mercy. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large never be marginalized.
22. In the present case, one valuable human life of police personnel UID No.61/17 Dharmender Singh Vs State 14 of 16 15 has been lost and another was injured due to the act of applicant/convict driving the vehicle rashly and negligently. Therefore, I am not inclined to interfere in the sentence awarded by Ld. Trial Court to the appellant/convict.
23.The appellant/ convict be taken into custody to serve the sentence as imposed by the Ld. Trial Court which reads as under: a. The convict is sentenced to simple imprisonment for two years for the offence under Section 304A IPC, b. The convict is sentenced to simple imprisonment for six months for the offence under Section 337 IPC and; c. The convict is sentenced simple imprisonment for six months for the offence under Section 279 IPC.
d. All the sentences of the convict shall run concurrently.
24. Custody warrant be prepared accordingly. Benefit of Section 428 Cr.PC (if any) be given.
25.Authenticated copy of judgment be given free of cost to the appellant/convict.
26.Appeal file be consigned to record room after completion of necessary formalities.
UID No.61/17 Dharmender Singh Vs State 15 of 16 16
27.Trial Court record be sent back along with copy of the judgment.
Announced in the open court today i.e. 05th May, 2018 (DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI This judgment contains 16 pages and all pages bears my signatures.
(DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI UID No.61/17 Dharmender Singh Vs State 16 of 16