Delhi District Court
State vs . Bhim Prakash on 25 July, 2023
IN THE COURT OF MS. MANU SHREE, MM-01, SOUTH-
SAKET, NEW DELHI
CrC No. 2039510/2016
State vs. Bhim Prakash
FIR No. 03/2016
PS Fatehpur Beri
JUDGMENT
Date of the Commission of 01.01.2016 offence Date of Institution of the case 09.11.2016 Date of reserving the judgment 06.07.2023 Date of pronouncement of 25.07.2023 judgment Name of the Complainant HC Krishan Kumar No. 301/SD, PS Fatehpur Beri, New Delhi.
Name of Accused and his Bhim Prakash S/o Sh. Kana
Parentage Ram R/o Village Near
Silaya Bhakar Suum Dhadi
Hiradsham, PS Bopalgarh,
Distt. Jodhpur, Rajasthan.
Offences complained of or 279/337/338/304A IPC
proved
Plea of accused Not Guilty.
Final order Convicted.
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The case of the prosecution as unfolded by the police report is that on 01.01.2016 at about 09:00 PM, near Police Booth, Dera Road, on a public way, accused Bhim Prakash was driving a Toyota Corolla Altis bearing registration no. DL-10CE-
19311 in a manner which could be considered rash or negligent and accused jumped over a speed breaker and lost control of the car and hit the wall of a farm house and caused simple injuries to co-passenger Shaitan Singh, grievous injuries to co-passenger Sh. Krishan and death of co-passenger Azad and he committed offences punishable u/s 279/337/338/304A of IPC.
2. On the basis of the charge-sheet and materials on record, prima facie, a cognizable case was made out, therefore, cognizance of the offences u/s 279/337/338/304A of IPC were taken and accused was summoned to face trial.
Upon appearance of the accused before the Court, he was supplied with copies of charge-sheet and other documents sought to be relied upon by the prosecution and compliance of section 207 Cr.P.C. was made.
3. On 18.01.2017, notice u/s 251 Cr.P.C. for offences u/s 279/337/338/304A IPC was framed against accused to which accused pleaded not guilty and claimed trial and thereafter, case was listed for PE.
On 06.02.2023, in a statement recorded u/s 294 Cr.P.C., accused admitted the genuineness of FIR and Certificate U/s 65B and on 03.11.2022, in another statement recorded u/s 294 Cr.P.C., he admitted the Post Mortem Report of deceased Azad Singh and accordingly, examination of the formal witnesses to prove both was dispensed with.
4. To prove its case against the accused persons, prosecution examined seven witnesses.
4.1 Superdar of offending vehicle, Sh. Pawan Khatana 2 was examined as PW-1 and he deposed that he had been working as a Manager in the Company, 'A Class Marble India Pvt.' He was authorised by the Director of the Company to move an application seeking release of the offending vehicle i.e. Toyota Altis vide authority letter, Ex.PW1/A and filed the application, Ex.PW1/B and got the offending vehicle released from the court vide Superdarinama, Ex.PW1/C. He identified the photographs of the offending vehicle as Ex.P-1.
4.2 Injured Shaitan Singh was examined as PW-2 and deposed that he was working as a Supervisor in 'Sahara Blue Line' at Udaipur, however, did not remember the exact date, time or place of incident or the registration number of the offending vehicle. He also did failed to disclose the identity of the driver of the offending vehicle but admitted that he had received medical treatment.
4.3 Rajender Singh, Record Clerk in AIIMS, was examined as PW-3 and identified the MLC no. 535454/2016 dated 01.01.2016 of deceased Azad as Ex.PW3/A which had been signed by Dr. Mohit Bhutani. He also identified MLC no. 535459/2016 dated 01.01.2016 of injured Shaitan Singh as Ex.PW3/B bearing signatures of Dr. Maloth Yakub and finally, he identified the MLC no. 535457/2016 of injured Shree as Ex.PW3/C bearing signatures of Dr. Maloth Yakub. 4.4 Injured Sh. Krishan was examined as PW-4 and deposed that on the date of incident, he was working at 'A Class Marble Company' and on the said date, at around 08:00 PM, accused Bhim Prakash and injured Shaitan Singh came to his house and shortly thereafter, deceased Azad Singh also came to his house. He stated that accused Bhim Prakash and injured Shaitan Singh were working in his company and deceased Azad 3 Singh was residing in the same building as his and he was a regular visitor of his company as his uncle used to polish the marble at his company. He further stated that on the date of incident, him, Bhim Prakash, Shaitan Singh and Azad went out to celebrate New Year's in the company car which was gray in colour and brought by accused Bhim Prakash and while him and Azad Singh sat on the rear seat of the car, Shaitan Singh was sitting in the front passenger seat of the car and accused Bhim Prakash was driving the car. He stated that accused Bhim Prakash was driving the car at a high speed and PW-4 asked him to slow down but he ignored his requests and within a few minutes, the car hit a speed breaker near the farmhouse area of Fatehpur Beri and jumped and he sustained injury and became unconscious. He correctly identified the accused and photographs of the offending vehicle, Ex.P2.
4.5 Second IO/SI Mahender Singh, no. 5465/D was examined as PW-5 and deposed that on 06.01.2016, he was posted at PS Fatehpur Beri as SI and on that day, the case was marked over to him for investigation vide DD No. 39-B through which he got to know that injured Azad Singh had expired. Thereafter, he went to Trauma Centre, AIIMS but due to late hours, postmortem of deceased Azad Singh could not be conducted and on the next day i.e. on 07.01.2016, he got the postmortem of deceased Azad Singh conducted and handed over the dead body of deceased Azad Singh to the relatives of the deceased vide handing over memo, Ex.PW5/A. On 08.01.2016, owner of the offending vehicle namely Pawan Kumar came to PS and gave his reply to notice u/s 133 of MV Act, Mark P1 and also produced the driver of the offending vehicle namely Bhim Prakash. He arrested the accused vide arrest memo, Ex.PW5/B, 4 conducted his personal search vide personal search memo, Ex.PW5/C. Thereafter, accused handed over his DL to PW-5 which he seized through seizure memo, Ex.PW5/D and accused was released on bail. During investigation, the matter was again handed over to HC Krishan, the first IO, in compliance of order of SHO concerned. On 03.02.2016, the matter was handed back to him for investigation. During investigation, he made inquiries from injured Sh. Krishan and also collected MLCs of injured and postmortem report of deceased. He also filed the charge-sheet before the court and got released the offending vehicle bearing no. DL10CE9311 on superdari vide panchnama, Ex.PW5/E. He correctly identified the photographs of the offending vehicle, Ex.P1.
4.6 HC Krishan Kumar, no. 301/SD was examined as PW-6 and deposed that on 01.01.2016, he was posted at PS Fatehpur Beri as Head Constable. On the said date, he was on emergency duty from 08:00 AM till 08:00 PM along with Ct. Krishan Kumar. HC Krishan stated that at about 09:05 PM, he received a call through DD no. 31A regarding accident at Dera Mandi Road near police booth and he and Ct. Krishan Kumar reached the spot where they found a vehicle make Corolla bearing no. DL10CE9311 stationed in an accidental condition and after inquiry, they came to know that a PCR van had shifted the victims/injured to the hospital. Thereafter, he took the photographs of the offending vehicle (which he correctly identified during his deposition as Ex. P2) and seized the vehicle vide seizure memo, Ex.PW6/A and sent it to the malkhana. On the next day, after receiving DD no. 79A regarding preparations of MLCs of injured, he along with Ct. Krishan Kumar went to Trauma Centre, AIIMS and collected the MLCs of injured 5 Prakash, Azad, Shree and Shaitan Singh. Doctor had declared injured Azad unfit for statement and at that time, no other injured was present at the hospital for statement. HC Krishan Kumar received above-mentioned MLCs and on the basis of DD entry, prepared the rukka and handed over the same to Ct. Krishan Kumar for registration of FIR and he left for the spot but no eye- witness or CCTV camera could be found. In the meantime, Ct. Krishan Kumar came to the spot alongwith original rukka and copy of FIR and handed them over to HC Krishan and he prepared the site plan, Ex.PW6/B. He recorded the statement f Ct. Krishan Kumar u/s 161 Cr.P.C. On the next day, he got the mechanical examination of the offending vehicle conducted and searched for the injured but noone was available at the time. On 03.01.2016, Pawan Katana came to the PS and presented his Authority Letter and documents relating to the offending vehicle which were seized by him vide seizure memo, Ex.PW6/C. On 06.01.2016, he received information through DD no. 39B that the victim/injured Azad Singh had died. Thereafter, the case was marked to SI Mahender Singh for further investigation and he recorded the statement of injured Shaitan Singh on account of other official engagements of SI Mahender Singh. 4.7 Ct. Krishan Kumar, Belt no. 1207/SD was examined as PW-7 and deposed that on 01.01.2026, he was posted as a Constable at PS Fatehpur Beri. On that day, he along with HC Krishan Kumar was on emergency duty at the PS and when a call was received regarding an accident at Dera Mandi Road near the police booth, they both left for the place of occurrence and found the offending vehicle in accidental condition. He deposed further on the same lines as PW-6 and also identified the offending vehicle in photographs.
6Vide order dated 06.02.2023, PE was closed at the submission of Ld. APP for State.
5. On 18.03.2023, statement of accused u/s 313 Cr.P.C. was recorded wherein accused denied the case of the prosecution and stated that he was falsely implicated in the case. Accused chose not to lead evidence. DE was closed and matter was fixed for final arguments.
6. During final arguments, it was argued by Ld. APP for the State that the case against accused Bhim Prakash stood proved in view of the evidences led by the prosecution. Accordingly, he argued that accused deserved to be convicted for the offences u/s 279/337/338/304A IPC.
On the other hand, the Ld. Defence counsel argued that the prosecution had failed to bring out a case against the accused, accused had been falsely implicated in the case and is liable to be acquitted.
7. This Court has read the case file meticulously, perused the material on record and duly considered the arguments advanced.
8. Section 279 of the Indian Penal Code, 1860 requires only two essentials, viz. (a) driving of a vehicle and (b) such driving must be so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person. For section 279 to apply, the rashness or negligence must be criminal rashness or negligence. To be guilty of an offence under section 279 IPC, the accused must drive a vehicle in such a rash and 7 negligent manner as to endanger human life or to be likely to cause hurt or injury to any other person. A certain aggravated degree of rash and negligent driving is contemplated here but the act need be either rash 'or' negligent. Black's Law Dictionary describes "negligence" as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or wilfully disregardful of others' right. But the term "rashness" is not defined in Black's Law Dictionary. Meaning of the word "rash" as per Oxford Dictionary is 'acting or doing without considering the possible results'.
Rash and negligent driving must be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts pre- suppose an abnormal conduct. Even when one is driving a vehicle at a slow speed, but recklessly and negligently, it would amount to "rash and negligent driving" within the meaning of the language of section 279 of the Indian Penal Code, 1860. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus are:
(a) it is the manner in which the vehicle is driven;
(b) it be driven either rashly or negligently; and 8
(c) such rash or negligent driving should be such as to endanger human life.
Generally, a person driving the vehicle on a public road is expected to drive it in such manner to enable him to prevent hitting against other vehicles or pedestrians. Culpable negligence or failure to exercise reasonable care is a matter of evidence.
In Prabhakaran v. State of Kerala, (2007) 14 SCC 269 : (2009) 1 SCC (Cri) 873 : 2007 SCC OnLine SC 857 at page 272, the Hon'ble Supreme Court of India has observed:
6. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not. Lord Atkin in Andrews v. Director of Public Prosecutions [1937 AC 576 : (1937) 2 All ER 552] AC at p. 583 observed as under : (All ER p. 556 C-E) "Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'reckless' most nearly covers the case. It is difficult to visualise a case of death caused by 'reckless' driving, in the connotation of that term in ordinary speech, which would not justify a conviction for manslaughter, but it is probably not all-embracing, for 'reckless' suggests an indifference to risk, whereas the accused may have appreciated the risk, and intended to avoid it, and yet shown in the means 9 adopted to avoid the risk such a high degree of negligence as would justify a conviction."
This extract is taken from Prabhakaran v. State of Kerala, (2007) 14 SCC 269 : (2009) 1 SCC (Cri) 873 : 2007 SCC OnLine SC 857 at page 272
7. "7. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not.
Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, 'rashness' consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the 10 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.
9. The distinction has been very aptly pointed out by Holloway, J. in these words:
'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 (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 the neglect of the civic duty of circumspection.' (See Nidamarti Nagabhushanam, In re [7 Mad HCR 119] , Mad HCR pp. 119-20.) ***
9. Prosecution has alleged that on the fateful day, the accused Bhim Prakash took his three friends/acquaintances for a joy ride in his company care to celebrate New Years and while driving the said vehicle, he lost the balance on one of the speed breakers and crashed into the wall of a farmhouse due to which one of the occupants of the car sitting on the rear seat namely Azad Singh lost his life and the other two, namely Shaitan Singh and Krishan sustained injuries in the nature of simple and grievous respectively.
10. The primary onus of proof is on the prosecution to prove its case beyond reasonable doubt. To prove its charges against the accused, prosecution examined seven witnesses, two 11 of which were injured witnesses PW-2 and PW-4 whose testimonies shall now be examined in the facts of the case.
10.1 PW-2 Shaitan Singh in his examination in chief stated that he did not remember the exact date and time of incident or the registration number of the offending vehicle. His testimony though inchoate may be read in light of the testimony of the other injured witness PW-4 Shree Krishna. PW-4 in clear and no uncertain terms stated that on the fateful day, accused Bhim Prakash and PW-4 Shaitan Singh, who were working in his company, came to his house and collected him and Late Azad Singh, who was also residing in the same building and his uncle working for the same company as his, and they all went out to celebrate New Years the company car which was gray in colour and accused Bhim Prakash was driving the said car and Shaitan Singh sitting next to him. He further stated that accused Bhim Prakash was driving the vehicle at a fast speed and he asked the accused to slow down but he did not listen and at a speed breaker the car jumped and hit the wall of a farmhouse due to which he sustained injuries and became unconscious. PW-2 has not supported the prosecution in its entirety but he has admitted in his cross-examination that two more friends of accused Bhim Prakash were sitting in the backside of the vehicle. The law on appreciation of testimony of a hostile witness has been discussed by the Hon'ble Supreme Court of India in C. Muniappan v. State of T.N., (2010) 9 SCC 567, relevant extracts of which are reproduced hereunder:
"81. It is settled legal proposition that:
"6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be 12 treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."
(Vide Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389, Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233, Syad Akbar v. State of Karnataka, (1980) 1 SCC 30 and Khujji v. State of M.P., (1991) 3 SCC 627, SCC p. 635, para 6.)
82. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360: 1996 SCC (Cri) 1278] this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra [(2002) 7 SCC 543: 2003 SCC (Cri) 112], Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516: (2008) 1 SCC (Cri) 109], Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450: (2006) 1 SCC (Cri) 661], Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1 SCC (Cri) 188] and Subbu Singh v. State [(2009) 6 SCC 462:
(2009) 2 SCC (Cri) 1106].
83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
84. In the instant case, some of the material witnesses i.e. B. Kamal (PW 86) and R. Maruthu (PW 51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature.
85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be 13 disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses."
From the above discussed case on point, it can be concluded that the testimony of a hostile witness can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof and testimony of PW-2 coupled with clear and cogent testimony of PW-4 places the accused in the offending car which had been seized subsequent to the accident by the IO and released by the company through its AR, PW-1. Same has been proved through Ex. PW 1/A and Ex. PW 1/C. 10.2 To appreciate the relevance of testimony of PW-4, reliance can be placed upon the judgment passed by the Hon'ble Supreme Court of India in Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107 : 2009 SCC OnLine SC 1551 at page 726, relevant extracts of which are reproduced hereunder:
29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2021] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and 14 nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214] ). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.
Further, in State of U.P. v. Kishan Chand, (2004) 7 SCC 629 : 2004 SCC (Cri) 2013 : 2004 SCC OnLine SC 923 at page 632, it was held:
10. That apart, PW 1 Shridhar and PW 8 Mizazi Lal are both independent and injured witnesses.
The testimony of an injured witness has its own relevance and efficacy. The fact that the witnesses sustained injuries at the time and place of occurrence lends support to their testimony that the witnesses were present during the occurrence. The injured witnesses were subjected to lengthy cross-examination but nothing could be elicited to discredit their testimony.
PW-4 has been subjected to a lengthy cross- examination and his version has remained un-rebutted. His presence at the time and place of occurrence cannot be disputed. 10.3 MLCs of PW-2 and PW-4, Ex. PW-3/B and Ex. PW- 3/C and that of deceased Azad Singh, Ex. PW-3/A were prepared soon after the incident i.e. on 01.01.2016 at 22:16:13 PM, 22:17:43 PM and 22:14:43 PM which lends credence to the prosecution story. Needless to say, injured Azad Singh a few days after the incident succumbed to his injuries, his time of death is mentioned in the Post Mortem Report as 02:30 PM on 06.01.2016 and cause of death and history is opined to be head injury and its complication during treatment after his accident on 01.01.2016 which leaves no room for doubt that the deceased had succumbed to his head injuries caused on account of the road accident caused by the accused Bhim Singh, whose presence in 15 the offending vehicle has been proved beyond reasonable doubt by the testimony of PW-4.
10.4 The mechanical inspection of the offending vehicle was conducted soon after the incident and the report, Ex AD-3 show heavy frontal damage on the car which can only be a result of a collision.
11. In view of the appreciation of facts and evidences made in the foregoing paragraph, in the opinion of this court, the chain of evidence, both direct and circumstantial is complete and there is no room of doubt that the accidental death of Azad Singh and injuries on Shaitan Singh and Shree Krishna, simple and grievous, respectively were caused by the rash and negligent driving of the accused Bhim Prakash. Accordingly, accused Bhim Prakash is convicted in the present case for the offences u/s 279/337/338/304A IPC.
Accused is directed to furnish bail bonds in a sum of Rs.10,000/- with one surety of like amount under Section 437A Cr.P.C.
MANU Digitally signed
by MANU SHREE
Announced in open court
on 25.07.2023 SHREE Date: 2023.08.01
17:18:55 +0530
(Manu Shree)
MM-01/South-Saket/25.07.2023
Certified that this judgment contains sixteen pages and each page bears my signature.
(Manu Shree) MM-01/South-Saket/25.07.2023 16