Delhi District Court
Jaswant vs State on 17 January, 2017
Criminal Appeal No.55076/2016
IN THE COURT OF SPECIAL JUDGE, CBI (PC ACT)-06, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Criminal Appeal No.55076/2016
JASWANT
S/o SH Laskari Ram,
R/o Gali no 8, Milan Vihar,
(Near Biodiversity Park),
Sant Nagar, Burari, Delhi ..........Appellant
Versus
State ..........Respondent
Instituted on : 22nd December, 2016
Argued on : 17th January, 2017
Decided on : 17th January, 2017
JUDGMENT
1. This appeal is directed against judgment dated 26.08.2016 and order on sentence dated 23.11.2016 passed by the Court of Ms. Ambika Singh, learned Metropolitan Magistrate-06 Central, Tis Hazari Court whereby appellant has been convicted for the offence punishable u/s 279 and 304-A IPC and sentenced to undergo simple imprisonment for four months and fine of Rs.1,000/- u/s 279 IPC and rigorous imprisonment for one years and fine of Rs.9,000/- u/s 304 A IPC. Both the sentences are ordered to run concurrently.
2. Criminal law was set into motion in this case by Head Constable Neki Ram (PW-1), who was on Patrolling duty at Shyam Nath Marg and noticed that one DTC Bus bearing No.DL-1PB-2398 moving at the speed of 25/30kmph came from Boulevard Rod and took a turn towards Sham Nath Marg and struck against a pedestrian, who got crushed under the front tyre of the said bus and expired at the spot itself. FIR No.03/2006, P.S. Civil Lines was recorded and on conclusion of investigation, Charge sheet was filed in the court on 9th June, 2006. Cognizance was taken by learned Metropolitan Jaswant Vs. State 1 of 14 Criminal Appeal No.55076/2016 Magistrate and accused was summoned. Notice u/s 251 Cr.P.C. was served to accused u/s 279/304A IPC on 16.08.2007, to which he pleaded not guilty and claimed trial. Prosecution examined 10 witnesses to prove its case and in his statement recorded u/s 313 Cr.P.C, by the trial court, accused pleaded innocence and false implication.
3. Sh. Kamlesh Jha, Learned counsel for appellant submitted that there is a delay of approximately two hours in lodging of FIR, despite the fact that PS CIvil Lines is hardly 500 meters far away from the alleged accident. It is argued that application u/s 311 CrPC was dismissed on 22.03.2016 and appellant wanted to clarify conflicting statements given by the prosecution witnesses PW-1 & PW-10 in cross-examination, which caused grave injustice to appellant. It is argued that statement of accused was not recorded in terms of Section 313 r/w Section 281 CrPC and that unwanted adjournments were given after passing the judgment and before pronouncement of sentence. It is argued that first information was regarding a quarrel as per Ex.PW-10/A and the same was not of accident and death and that another FIR no. 3/2006 regarding a brawl and public frenzy adjacent to the place of incident, which falls under the jurisdiction of Kashmiri Gate, where approximately 14 buses were damaged by stone pelting by unruly mob. It is submitted that IO did not bother to keep himself abreast of the facts of this FIR to the learned trial court and both FIRs resulted from the same incident. It is submitted that the IO stated in the Rukka that he himself had apprehended the appellant, whereas before trial court he deposed that public had already apprehended the accused. IO further deposed that it was the fault of pedestrian and the driver and that pedestrian had not carefully crossed the road and driver of the bus had not slowed down the bus at the turn.
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4. It is submitted that learned trial court convicted the appellant on the basis of a sole witness without corroborating the material facts, who falls in the category of neither wholly reliable nor wholly unreliable in view of judgement Lallu Manji & Anr. Vs. State of Jharkhand 1. Learned counsel relied upon Vadivelu Thevan etc. Vs. State of Madras2 and submitted that the appellant who is a DTC driver is still working and is on the verge of retirement having clean service record and no photographs were placed on record to prove the facts that deceased was lying between the tyres of the bus driven by the appellant and that topography or side scenes does not show that photograph pertains to the accident by alleged bus driven by the appellant meaning thereby the appellant had no nexus with the alleged accident. It is argued that there were no blood stains on the tyre of bus driven by the appellant and no sign of any skid mark on the road and no mark on the tyres of the vehicle shows that the vehicle stopped all of a sudden as per record and that moreover, alleged bus was found hardly 15 to 20 meters away from the bus stand from where the bus originates for its destination. It is argued that as per photographs one more vehicle make 'Ashoks Leyland' was there in front of the vehicle driven by the appellant, but the IO did not examine Drivers/conductors of surrounding vehicles or any other public witness to know the truth and the place of incident was a public place i.e. a very busy road i.e. ISBT and surprisingly IO (PW-10) did not make any attempt to join the public witness as is evident from his deposition, that public persons who were present at the stop had broken 14 buses at the spot 1 Decided on 07.01.2003 by Hon'ble Supreme Court 2 AIR 1957 SC 614 Jaswant Vs. State 3 of 14 Criminal Appeal No.55076/2016 and there was no time to ask the persons at the spot regarding the negligence of the driver or the deceased", when IO/PW-10 was asked as to whether it was driver of the bus or the deceased who was negligent, IO answered that he did not examine any other person except HC Neki Ram regarding the negligence and rash regarding the incident and no inquiry was made by the IO to know, why the vehicle Ashok Leyland was standing just infront of the alleged vehicle driven by the appellant and as to why the said vehicle got damaged by the Mob and even the number plate of the Ashok Leyland was missing. Learned counsel referred Bal Kishan Vs. State 3 and Pawan Kumar Vs. Delhi Administration 4. It is submitted that as per Pawan Kumar's Judgment, atleast one of police officials should have deposed that they tried to contract public witnesses or that they refused to join the investigation.
5. It is argued that in the case in hand, no plausible explanation from the side of the prosecution is forthcoming for not joining the independent witness in a case of a serious nature like the present one and atleast the IO should have made an earnest effort to join independent witnesses. Learned counsel argued that PW-1 depicted as Eye witness deposed in the cross- examination that "I had not stated about the negligence of the deceased since there was tension caused by the public due to the accident", which shows that the statement given by PW-1 was under tension caused by the public due to said accident. He further submitted that for conviction prudent behaviour of both the pedestrian as well as the driver is to be looked into and the sole eyewitness PW-1 deposed that there was only one underpass near 3 Crl.Rev. No.8/2008 decided on 06.06.2008 by Delhi High Court. 4 Decided on 17.08.1987 by Delhi High Court.
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the spot for the pedestrian connecting all the directions", which shows that the deceased was not expected to cross the road Jaywalkingly especially when there was neither Zebra Crossing nor the red light near the spot. Learned counsel submitted that two witnesses whose complete particulars are mentioned in the death report were not examined, which creates a doubt on the authenticity of the prosecution case. Sh. Jha argued that as per site plan, alleged bus driven by the appellant was shown near the divider, which itself explains the fact that the bus was not driven by the appellant in a Zig Zag manner. Otherwise also for gaining speed, bus is to required some more distance to be plied. In the circumstances, learned counsel submitted that it can't be held that the driver was rash and negligent in driving the vehicle. Lastly, it is argued that the site plan was not prepared as per law and the signatures of complainant are not appearing on the site plan prepared by the IO, who might have been prepared the site plan in the police station of his own. Learned counsel for the appellant relied upon a cases titled as Mahadev Hari Lokre Vs. The State of Maharashtra5, wherein it was observed that ifa person suddenly crosses the road the Bus driver, however slowly may be driving may not be in a position to save the accident. Therefore, it will not be possible to hold that the Bus Driver was negligent. Abdul Subhan Vs. State (NCT of Delhi)6 wherein while quoting judgment in case State of Karnataka Vs. Satish, it was held that "merely because the truck was being driven at a high speed does not be speak of either negligence or rashness by itself". It is argued that Learned trial court did not put any specific question as regards incriminating evidence, hence the trial is vitiated and that the suspicion howsoever grave it may be, cannot take the place of proof, and there is a 5 AIR 1972 SC 221 6 2007 (4) JCC 3148 Jaswant Vs. State 5 of 14 Criminal Appeal No.55076/2016 large difference between something that "may be proved" and "will be proved". It is submitted that prosecution has failed to produce unimpeachable evidence for conviction of the appellant and there is no chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability th act must have been done by the accused held in Sharad Bridhichand Sarda Vs. State of Maharashtra 7. It is argued that the appellant is innocent has been wrongly convicted by the learned trial court and the conviction of the appellant may be set aside as no proof of his committing any offence has been proved by the prosecution against him.
6. On the other hand, Sh. Himanshu Garg, learned Prosecutor for the State submitted that PW-1 Complainant/HC Neki Ram fully supported the case of prosecution and fully explained the rash and negligent act of the accused while driving the offending vehicle. It is submitted that the delay has been properly explained by PW-10 SI Karam Singh, who deposed that when he found deceased beneith the tyre of the bus, he called the photograph at the spot and send the dead body to the Mortury. He also deposed that street lights were 'on' at the time of incident. Learned Prosecutor argued that accused has ample time to file revision against rejection of his application u/s 311 CrPC, moreover there are no conflicting statements given by PW-1 & PW- 10 and that the defence taken by the accused that the accident was caused by BBM Depot-II Bus is not believable as none of the witness supported the story of the accused. Accused neither complained to any senior official of his department of the said fact nor to any senior police official.
7. A rash act is primarily an over hasty act. It is opposed to a 7 AIR 1984 SC 1622 Jaswant Vs. State 6 of 14 Criminal Appeal No.55076/2016 deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular and it is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.
8. In Ravi Kapur Vs. State of Rajasthan 8, referred by learned trial court, it has been held that:
"The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others".
9. This court finds no merit in the contention raised by learned counsel appearing for the appellant. Prosecution was required to establish nexus of the accused with the offending bus in question and the requisite link has been established by the prosecution beyond the shadow of reasonable doubts. Scrutiny of material on record shows that in his deposition, PW-1 HC Neki Ram clearly stated that on 02.01.2006 at about 8.30pm, while he was on patrolling duty at Sham Nath Marg, he noticed one DTC Bus bearing No.DL-1P-B-2398 moving at the speed of 25/30kmph, came from bouleward 8 (2012) 9 SCC 284 Jaswant Vs. State 7 of 14 Criminal Appeal No.55076/2016 road and took a turn towards Sham Nath Marg and struck against a pedestrian who got crushed under the front tyre of the bus and expired at the spot. PW-1 in his examination in chief deposed that it was the fault of both the pedestrian and the driver and that the pedestrian had not carefully crossed the road and the driver of the bus had not slowed down his bus at the turn. PW-1 proved site plan Ex.PW-1/B bearing his signatures and deposed that it was prepared by IO/ASI Karan Singh at his instance and identified the accused in the court today and testified that people got agitated and were pelting stones on the vehicles at Bouleward Road. PW-1 was cross-examined by learned Prosecutor and it is significant to note that during cross- examination, PW-1 admitted that the accident had taken place due to rash and negligent driving by the accused and that he had not stated to the IO that there was negligence on the part of the deceased regarding crossing the road since there was tension caused by the public due to the accident. On asking, PW-1 admitted that pedestrian was trying to cross the road from point A towards point C shown in the site plan. During cross-examination on behalf of accused, PW-1 admitted that the place where he was standing was having heavy traffic flowing from all directions and that the place of incident remains generally crowded with traffic and public and public persons often cross the roads being in near vicinity to ISBT. PW-1 categorically deposed that he had watched the incident taking place completely and that the bus had crossed about 10 feet from the turn at the time of incident and that he had seen the bus and the pedestrian/deceased crossing the road simultaneously. PW-1 testified that the dead body had been removed from under the bus as it was lying between right side front tyre and right side rear tyre before the photographs were clicked and that the deceased had recived injuries on his Jaswant Vs. State 8 of 14 Criminal Appeal No.55076/2016 head and his brain matter had flown out from his skull and that blood stains had appeared on the right front side tyre of the bus, but it had not appeared on the body of the bus. There is nothing in the cross-examination of PW-1 to impeach his veracity about the manner described by PW-1 in detail in which incident had happened or as regards the bus being driven by the accused.
10. Testimony of other witnesses corroborate the alleged facts and circumstances. PW-2 Ishwar Singh Conductor of the bus identified the accused present in the court. PW-2 testified that they were coming from Meerut and were going towards BBM depot at Kingsway Camp, Delhi after dropping the passengers at ISBT and while taking the turn on Sham Nath Marg, driver had stopped the bus and descended from it. It was drizzling. PW- 2 testified that he was sitting on the last seat and descended form the back gate of the bus and went to see what had happened. PW-2 deposed that people were shouting and calling bad names and were beating the driver and that he also ran away from the spot without making enquiries as to what happened and why driver had been beaten and then he went to the PS Civil Lines, where also he found accused driver present in the police station. He also sat there and the driver was groaning in pain. PW-2 was cross-examined by the APP for the State. He denied the suggestions, but on asking stated that he could not say whether the driver of the bus had, while taking turn towards Sham Nath Margh, struck the bus against a pedestrian. He admitted that police had seized the bus. PW-3 ATI at DTC at BBM Depot I, had obtained the bus on superdari, which had met with an accident on 02.01.206 and was impounded by the police, vide Superdari Memo Ex.PW-3/A. PW-4 ASI Amar Singh duty officer, PS Civil Lines testified that on 02.01.2006 at 10.15pm he had received rukka from Ct. Manoj Kumar and on the basis of said rukka, PW-
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4 recorded FIR No.03/06. PW-5 Mechanical Inspector proved mechanical inspection report Ex-PW-5/A. PW-6 Ct. Jaiveer Singh, photographer took the photographs of the offending bus and placed on record photographs Ex.P1 to P10. PW-7 Balak Ram ATI at DTC/BBM Depot testified that he had marked the duty of the driver Jaswant Singh badge No.19637 at the bus No.DL1PB2398 plying between the Delhi to Meerut. PW-8 Dr. Kulbhushan Goel, CMO, Aruna Asaf Ali, had conducted the post-mortem on the dead body of deceased Satbir Singh and placed on record post mortem report Ex.PW-8/A. PW-9 HC Manoj had joined the investigation with IO ASI Karan Singh. He testified that he along with the IO Karan Singh reached at Boulvard Road, near bus stand route No.883 and found bus bearing No.DL1PB2398, where one dead body was lying between the front wheel and rear wheel of right hand side of the vehicle. Accused Jaswant Singh was handed over by PW-1 Neki Ram. PW-10 IO/SI Karan Singh testified that had had investigated the case, recorded statement of witnesses, obtained mechanical inspection of the offending vehicle and after completing the investigation, PW-10 filed charge-sheet before the court.
11. This court is in agreement with the observation made by learned trial court that the doctrine of contributory negligence does not apply in criminal action. There is a duty on every user on he road to make the reasonable use of it for the purpose of passing along it, and to allow others to do so also. The doctrine of contributory negligence does not apply to criminal liability where the death of a person is caused partly by negligence of the accused and partly by his own negligence. The doctrine of contributory negligence has no place in an indictment of criminal negligence. Learned trial court further rightly observed that minor discrepancies on trivial matters not Jaswant Vs. State 10 of 14 Criminal Appeal No.55076/2016 touching the core of the matter cannot bring discredit to the story of prosecution. Giving undue importance to them would amount to adopting a hyper-technical approach.
12. This court finds no infirmity in the recording of the statement of accused u/s 313 Cr.PC r/w 281 CrPC in question-answer form. All the incriminating evidence has been put to the accused and it is true that in his statement u/s 313 CrPC, accused had taken the stand that all the PWs are interested witnesses and their testimony cannot be believed. However, no motive has been brought on record as to why the PWs wold falsely implicate the accused and nothing has been brought on record to discredit the testimony of the PWs. There is no doubt that at 'high speed' does not bespeak of either rashness or negligence by itself. In the present case, there are no allegation of high speed and circumstantial evidence is not lacking incident has occurred on a turn of a road and accused had not slowed down the bus. Court has to consider broader probabilities of the case, while appreciating evidence as a whole.
13. On appreciation of evidence on record noted above as a whole, this Court finds no merit in the contention raised by learned counsel for appellant and no fault in the reasoning given by the ld. Trial Court and no illegality or defect in the impugned judgment. No interference is thus called for in the findings of ld. Trial Court. Conviction of appellant punishable u/s 279, 338 & 304A IPC is upheld. Order accordingly.
14. Having maintained the conviction of the appellant u/s 279 & 304A IPC, this court has heard submissions advanced by Sh.Kamlesh Jha, Learned Counsel appearing for appellant on the point of sentence. Ld. Counsel has prayed for taking a lenient view as regards quantum of sentence.
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Learned counsel for appellant submits that appellant is not a previous convict and no other case is pending against him. Learned Counsel for the appellant submits that appellant is 57 years of age at present, employed as Driver in DTC and has a wife dependent upon him. It is submitted that appellant faced trial for a long period of more than 10 years. Sh. Jha, Ld. Counsel submitted that lenient view be taken. In Dalbir Singh Vs. State of Haryana 9 which was a case u/s 279, 304 A IPC, benefit of Section 4 of the Probation of Offenders Act was declined, this case was referred & quoted with approval in B. Nagabhushanam Vs. State of Karnataka10, wherein our Supreme Court observed as under:-
"Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the P.O. Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance think that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles. Thus, bestowing our serious consideration on the arguments addressed by the learned counsel for the appellant we express our inability to lean to the benevolent provision to Section 4 of the P.O.Act. The appeal is accordingly dismissed".
15. Court has to strike a fine balance between conflicting interest of the convict on the one hand and giving justice to the victim of a crime and interest of the society, on the other hand. Maximum punishment for the 9 2000 (5) SCC 82 10 (2008) 5 SCC 730 Jaswant Vs. State 12 of 14 Criminal Appeal No.55076/2016 offence punishable u/s 304A IPC is two years. The aggravating circumstances in the present case are that vehicle which was being driven was a heavy commercial vehicle and therefore, the standard of care required on the part of appellant was on a higher footing. Secondly, in the present case a person had died after being crushed under the tyre of commercial bus due to the act and negligence of the appellant. This court has also perused the victim impact report already on record. Having regard to the totality of facts and circumstances, this court finds that it is not a fit case for grant of benefit of probation to the appellant. Learned counsel submitted that statement of Bhupinder Singh was recorded by the IO and that a sum of Rs.19.00 lakh had been paid to the Lrs. In the MACT claim. According to the appellant, he has not remained in custody at any point of time. Taking into consideration totality of facts and circumstances of the case, no ground for any leniency is made out.
16. In the result, impugned judgment whereby appellant has been convicted under Sections 279 & 304A IPC and sentenced to undergo simple imprisonment for four months apart from fine of Rs.1,000/- I.D. (in default) S.I. for 10 days u/s 279 IPC and rigorous Imprisonment of one year apart from fine of Rs.9,000/- in default SI for one month u/s 304A IPC and order of payment of Rs.10,000/- fine as compensation to the LRs of the deceased after the same is deposited by the accused, by the learned trial court is affirmed. Both the sentence shall run concurrently. Learned counsel for the appellant submits that fine of Rs.10,000/- already stands deposited on 23.11.2016. Appeal stands dismissed. Bail bonds of appellant stand cancelled. Appellant be taken into custody and sent to Central Jail, Tihar for suffering the sentence. Copy of this order be given to the appellant.
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17. Trial court record be sent back along with a copy of this order. Appeal file be consigned to record room.
announced in the open court
on 17th January, 2017 (Vinay Kumar Khanna)
Special Judge-CBI (P.C. Act)-06,
Central, Tis Hazari Courts, Delhi
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