Delhi District Court
State vs . Surender Pal on 31 January, 2014
State Vs. Surender Pal
1
IN THE COURT OF MS AANCHAL MM-8, (CENTRAL),
TIS HAZARI COURTS, DELHI.
In the matter of:
State
Vs.
Surender Pal
FIR No. 354/05
P.S. I.P. Estate
JUDGMENT
1. Sr. No. of the case : 830/2/12
2. Date of institution : 17.1.2006
3. Name of the complainant : Sanjeev Tyagi
4. Date of commission of offence : 29.07.2005
5. Name of accused : Surender Pal S/o Sh. Om
Prakash R/o 17/276, Trilok
Puri, Delhi
6. Offence complained of : 279/304A IPC
7. Plea of guilt : Accused pleaded
not guilty
8. Date of reserving the Judgment : 27.1.2014
9. Final order : Convicted
10.Date of such Judgment : 27.1.2014
BRIEF REASONS FOR DECISION
1. Briefly stated the facts of the prosecution case are that on 29.7.2005 at about 11.00am at Vikas Marg, Near Red Light, IP Flyover, Delhi within the jurisdiction of IP Police Station accused was driving bus No. DL-1PA-0873 in rash Page 1 of 10 Judgment in case FIR No.354/05 PS IP Estate State Vs. Surender Pal 2 and negligent manner so as to endanger human life and personal safety of others and while driving in such manner accused struck the said bus to scooter No. DL-7SV-2676 and caused death of Kuldeep Tyagi not amounting to culpable homicide.
2. After completion of investigation, charge-sheet was filed U/s 279/304A IPC . After compliance of Section 207 Cr.P.C., accused was served with the notice by Ld. Predecessor of this Court to which accused pleaded not guilty and claimed to be tried.
3. In order to bring home the guilt of the accused, prosecution examined following 8 witnesses.
a.PW1 is Complainant Sanjeev Tyagi on whose complaint the case FIR in hand was recorded. In his testimony on oath before the Court, PW1 deposed that he made the statement made to the police. He stated that on 29.7.2005 he alongwith his brother Kuldeep Tyagi was going to Ajmeri Gate at about 11.00 am on two wheeler scooter No. 2676 and that his brother Kuldeep Tyagi was driving the scooter and he was pillion rider. PW1 further stated that when their scooter had crossed the Yamuna Bridge, one bus of route no.,309 bearing registration No. DL-1A-8073 being driven at high speed and in zig-zag manner rashly and negligently came from behind and hit their scooter from its back and he immediately jumped from the scooter. PW1 also stated that the said bus dragged their scooter up to around 7-8 paces and his brother Kuleep Tyagi died at the spot. The bus driver got down and started running and fled away from the spot by leaving his bus. Police reached the spot recorded his statement Ex.PW1/A and seized the scooter. He identified the accused at the PS on next day when he was sitting there. Accused was arrested and his personal search were conducted vide memo Ex.PW1/B and C. Dead body of the deceased was obtained by PW1 vide memo Ex.PW1/D. b.PW2 Dr. Amit Sharma conducted post mortem of the body of the deceased Kuldeep Tyagi on 30.7.2005 and opined the cause of death Page 2 of 10 Judgment in case FIR No.354/05 PS IP Estate State Vs. Surender Pal 3 due to hemorrhage and shock consequent upon blunt force / surface impact to abdomen possible due to road traffic accident vide his report Ex.PW2/A. c.PW3 Sh.Ramit Kumar was photographer on 29.7.2005 and he photographed the spot at the request of IO and handed over the photographs which are Ex.P1 to P9.
d.PW4 Sh. Raj Singh was the owner of the vehicle bearing No. DL-1PA-08734 who got released the vehicle on superdarinama Ex.PW4/A and he gave reply to the notice U/s 133 MV Act which is Ex.PW4/B t Io and he stated that on 29.7.2005, accused was driving the bus Ex P1 produced by him.
e.PW5 T.U.Siddiqui mechanically inspected the bus No. DL-1P-A-0873 and scooter No. DL-7SV-2676 at the request of IO and furnished his mechanical inspection report vide Ex.PW5/A and Ex.PW5/B. f.PW6 ASI Pushpa was working as Duty Officer on 29.7.2005 at PS IP Estate and she deposed that on receipt of ruqqa Ex.PW1/A through Ct. V.P.Singh sent bySI Noor Mohd., she registered the FIR Ex.PW6/A and made endorsement on ruqqa Ex.PW6/B. g.PW7 HC V.P.Singh was working as Constable on 29.7.2005 at PS IP Estate and he joined investigation in the present case on that day with IO SI Noor Mohd who was assigned DD No. 38B mark X1. He alongwith IO SI Nor Mohd. reached the spot i.e. Vikar Marg, near IP Flyover where bus No. DL-1P-A-0873 of route No. 309 and scooter No. DL-7S-V-2676 were found in accidental condition. Dead body of a male namely Kuldeep Tyagi was found lying there and brother of deceased namely Sanjeev Tyagi met them at the spot whose statement was recorded by the IO. IO further prepared rukka and got Fir registered through him. Bus and scooter were seized vide Ex.PW7/A and B. PW7 further stated that dead Page 3 of 10 Judgment in case FIR No.354/05 PS IP Estate State Vs. Surender Pal 4 body was taken to MAMC for post mortem and after post mortem body was handed over to relatives of the deceased and statement of Sanjeev Tyagi and Mahender Singh qua identification of dead body i.e. Ex.PW7/C and D were recorded. PW7 further deposed that on 31.7.2005 accused Surender Pal was arrested and his personal search was conducted vide Ex.PW1/B and C and that DL of the accused, RC and insurance of the offending bus were also seized vide Ex.PW7/E, Ex.PW7/F and Ex.PW7/G respectively.
h.PW8 Retd. SI Noor Mohd. conducted investigation of the matter alongwith PW7 on 29.7.2005 on receipt of DD No.38B vide Ex.PW8/A. He narrated entire investigational steps taken by him during investigation and deposed on the lines of PW7.
4. After conclusion of Prosecution Evidence, statement of accused was recorded U/s 313 Cr.P.C. vide which accused denied allegations against him. He was given opportunities to lead DE but he failed.
5. Final arguments heard and record is perused carefully.
6. In order to prove the allegations under notice in the present case, prosecution is required to prove following facts:
•The accused was driving the offending vehicle •This driving caused death not amounting to culpable homicide to bring a case of S-304A IPC.
•Driving was rash or negligent.
Whether the accused was driving the offending vehicle? PW 4 Sh. Raj Singh owner of the offending vehicle deposed that accused was driving the same on 29.7.2005. He also deposed that he replied to the Notice U/s 133 MV Act about this fact. This witness was not cross examined on behalf of accused. Not only this, this fact is not disputed by the accused Page 4 of 10 Judgment in case FIR No.354/05 PS IP Estate State Vs. Surender Pal 5 in his examination U/s 313 Cr.P.C., thus this fact is deemed admitted. Hence, this fact is held proved that accused was driving the offending vehicle on the date of incident.
•Whether this driving caused death not amounting to culpable homicide to bring a case of S-304A IPC.
Dr. Raman Sharma deposed that he conducted the post mortem of body of Kuldeep Tyagi on 30.7.2005 and opined that his death is due to injuries possible due to road traffic accident in his report Ex.PW2/A. This witness is not cross examined at all. Hence, this fact stands proved being admitted.
•Whether Driving was rash or negligent The fact of rashness or negligence is not the isolated act and this fact is proved by the deposition of the witnesses and attendant circumstances at the spot collectively. Only witness of fact Sanjeev Tyagi deposed in following words :
"The bus driver was also driving the bus at high speed and in zig zag manner and hit our scooter from its back. I immediately jumped from the scooter, however, the bus dragged our scooter up to around 7-8 paces........................... xxxxxxx examination by Sh. Sanjeev Soni, Ld. Counsel for accused.............. the spot of incident is prior to red light signal and there was no red light at the spot of accident and therefore there is no question of accused starting his bus at slower speed after green signal............ (vol.) just at our back the bus mentioned above was coming. Just before accident I was having my attention towards my younger brother who was driving the scooter and I was telling him that the bus plying behind us was driving in zig zag manner and at a fast speed. By the time I was stating, all these things to him, the accident took place........... the front right portion of the bus had hit our scooter . I can not specify whether scooter was hit by bumper / front portion of the bus or the Page 5 of 10 Judgment in case FIR No.354/05 PS IP Estate State Vs. Surender Pal 6 right side / side of door of driver (Vol.) All I can remember is that scooter was hit by bus from its front right portion..... after the accident I had jumped towards my right side i.e. On the side of the divider while my brother had fallen down on the left side. I did not suffer any grievous injuries and other injuries was not given any attention by me because I was more concerned about my younger brother............. I had not completely fallen down on the road....... my brother was having DL. I can produce it before the Court............... a little bit of blood was there on the road where his body was lying, it was not there on the road at other places.
It is argued by Ld. Defence Counsel that the only proposed witness of fact Sh. Sanjeev Tyagi has failed to explain how the driving could be termed as rash or negligent. Further, he has failed to answer questions asked about the distances between bus and scooter, spot and red light, exact speed of scooter, the exact part where the bus had hit the scooter, the damage on bus, the exact position of his body after the jump, status of his clothes, the exact duration of time spent by him at the spot, etc and he had suffered no injury though he was pillion rider as per the prosecution case. Therefore, not only the presence of Sanjeev Tyagi is proved doubtful but it could also not be ruled out that accident took place when the deceased attempted to overtake the bus from right side in fast speed.
On the contrary, it is argued by Ld. APP for State that this witness had made the statement to the police just after the incident and he had deposed that the driver was driving the bus at a very high speed and in zig zag manner and inability of the witness to answer certain questions does not prove his absence as it is reasonably expected that a man may forget a number of facts due to long passage of time. Ld. APP also stresses upon the fact that this witness was examined after about 3 years of the incident.
It is the defense of the accused that the deceased driving the scooter in question tried to overtake the bus with fast speed. Thus, it is not in dispute that it was the contact between the offending bus and scooter due to which the scooter fell down. The deposition of PW Sanjeev shows that the incident took place in fraction of time. He was the brother of deceased and himself in the process to jump Page 6 of 10 Judgment in case FIR No.354/05 PS IP Estate State Vs. Surender Pal 7 and then balancing his own body at that time. Spot is just after the crossing of Yamuna Bridge and a busy road. Therefore, simultaneous natural attention of this witness to prevent himself from any other vehicle cannot be denied. He found the bus dragging his brother and then his brother dead at the spot. The nearness of the witness with the deceased and natural emotional shock received by him explains his inability to answer the questions regarding miniscule details of distance, time, his position, clothes, the point of damage etc. He has also explained that he was not in very good state of mind. It also explains the reason why this witness has not paid the attention towards any injury that might have received by him. This witness had been cross-examined at length that run for two days. He consistently deposed about the incident. This witness could not be disbelieved and called interested only for the reason that he was the brother of deceased. It is the known fact that public persons are least interested to be the part of the police investigation. This witness or IO is not shown to have any previous enmity with the accused. It is not explained why he would be deposing falsely and why IO would indulge to this extent that PW Sanjeev would be planted as false witness. In such circumstances, PW Sanjeev could not be said as interested witness but he is held as truthful witness. The course of events that took place in short span and resulted into the death of deceased, speak itself that it would not have taken except for the rashness and negligence. Hence, the doctrine of res ipsa loquitur can be safely invoked. Now, the onus lies upon the accused to prove that incident took place in any other manner. As the accused has not led any cogent evidence to prove otherwise, the defense of accused remains unproved and it is held that the accused was driving the offending bus rashly and negligently.
7. In view of the above discussion, it is held that the prosecution has successfully proved its case beyond reasonable doubt for the offence punishable U/s 279/304A IPC. Therefore, accused Surender Pal s/o SH. Om Prakash stands convicted for the commission of offence punishable u/s 279/304A IPC. He shall be heard separately on the point of sentence.
Announced in Open Court (AANCHAL)
Today, 27.01.2014 MM/08/C/DELHI
27/01/2014
Page 7 of 10
Judgment in case FIR No.354/05 PS IP Estate
State Vs. Surender Pal
8
FIR No. 354/05
P.S. I.P. Estate
31.1.2014
Present: Ld. APP for the State.
Convict in person with ld. Counsel Sh. N. K. Saraswat ORDER ON THE QUESTION OF SENTENCE:-
•Arguments on the point of sentence are heard. Victim Impact Report as filed and record is perused carefully.
•It is submitted on behalf of convict that a lenient view be taken in view of the fact that convict has faced the trial for about 8 years and that he belongs to low income group . It is further submitted on behalf of convict that convict has two daughters of school going age and that he is the sole bread earner of the family having liability to maintain his family including his old ailing mother. He is eldest one amongst his brothers and that his two younger brothers are unmarried. He was about 26-27 years of age at the time of accident.
•On the contrary Ld. APP prays for strict punishment on the ground that one young man with responsibility of his family, lost his life due to rash and negligent driving of the convict driver.
•Hon'ble Supreme Court has observed following in Dalbir Singh v. State of Haryana [(2000) 5 SCC 82],:
"13.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 304A IPC as attracting the benevolent provisions of Section 4 of the PO 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 thinking that a rash driving need not necessarily cause any accident; or Page 8 of 10 Judgment in case FIR No.354/05 PS IP Estate State Vs. Surender Pal 9 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."
•Considering the nature and gravity of the offence committed by convict, I am not inclined to invoke the provision of Section 360 of Cr.P.C. or the Probation of Offenders Act, 1958. The convict was driving the offending bus rashly and negligently which hit with the scooter causing it with deceased dragged and thereby caused the death of man of 25 years at the spot. With a few exceptions, convict had been appearing regularly during trial. He appears to be genuinely remorseful for the act. Having thoughtful consideration of the entire matter, the facts and circumstances of the case, the nature and gravity of the offence, the background and dependants upon the convict and source of income, the convict is punished with following for the following offences:
Offence Fine In default Sentence Nature
279 IPC Nil. Nil. 3 months SI
304A IPC Nil. Nil. 9 months SI
•Sentences shall run concurrently and the convict is granted the benefit of S-428 Cr.P.C.
•Life of one young person upon whom his family was dependent , had lost into the incident. From the material , victim impact report and statement of brother of deceased , it can not be opined that their dependents have not been compensated sufficiently. Accordingly no recommendation for compensation or rehabilitation of any dependent of deceased is made at this stage . However, the dependents of Page 9 of 10 Judgment in case FIR No.354/05 PS IP Estate State Vs. Surender Pal 10 deceased may approach Delhi Legal Service Authority to seek compensation as per law, if any.
•The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid cell through the Secretary, DLSA Room No.287, Tis Hazari Court Delhi.
•Copy of the judgment and order of sentence be given to the convict free of costs, and another copy to be sent to the District Magistrate, as per the provision of Section 365 of the Cr.P.C.
Given under my hand and seal of this court on 31st January,2014 AANCHAL MM-06/Central/Delhi/31.01.2014 Page 10 of 10 Judgment in case FIR No.354/05 PS IP Estate