Delhi District Court
State vs . Saluddin on 26 May, 2012
IN THE COURT OF MS.SHEFALI SHARMA: METROPOLITAN
MAGISTRATE (NORTH-7) : DELHI.
State Vs. Saluddin
FIR No. 232/97
PS: Civil Lines
Unique Case ID No. R0022271993
JUDGMENT
(a) Sr. No. of the case 02.4.2012
(b) Date of offence 05.6.1997
(c) Complainant Sh.Dinesh Kr, S/o Sh.Bal Kishan, R/o
23, IP College, Shamnath Marg,
Delhi-54
(d) Accused Saluddin, S/o Sh.Nasuddin, R/o Gali no.
2, D Block, Khajuri, Bajan Pura, Delhi
(e) Offence Under Section 279, 338, 304A IPC
(f) Plea of accused Pleaded not guilty.
(g) Final Order Convicted
(h) Date of institution 03.11.1997
(i) Date when judgment 04.5.2012
was reserved
(j) Date of judgment 26.5.2012
1. This judgment shall dispose off the case instituted by the police alleging offences under Section 279, 337, 338 & 304A of Indian Penal Code, 1860.
2. The allegations against the accused are that on 05.6.1997 accused was driving bus registration No. DL 1P 8411 (hereinafter referred to as State v. Salauddin FIR No. 232/1997 Total Pages 12 offending vehicle) in a rash and negligent manner so as to endanger human life and personal safety of others. It is also alleged that while driving the aforesaid bus in aforesaid manner the accused hit against wall of IP College causing death of Kartik Panna Lal, grievous injuries to Janvi Barboda and Sanjay. According to the prosecution, the accused thus committed offences punishable under Section 279, 338 and 304A of Indian Penal Code, 1860.
3. After compliance of Section 207 Code of Criminal Procedure, 1973. Notice under Section 251 Code of Criminal Procedure, 1973 was served upon the accused for the offences under Sections 279, 338 and 304A of Indian Penal Code on 01.6.1999, to which the accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined 08 witnesses. PW1 Dinesh Kr, testified that on 05.6.1997, he was posted as Chowkidar at the gate of IP College and was on duty from 10.00 pm to 6.00 am. It is testified that he heard noise as a result of which he came and saw a bus bearing no.DL 1P 8411 hit against 3 persons (2 boys and 1 female) who had gone out from IP College and thereafter, the said bus hit against the pole as well as electricity pole outside the college. It is testified that sound was so loud that staff staying in the staff quarters viz. Dr. Suresh Vaid, Lecturer in College as well as another Chowkidar Deepak Kr (now expried) rushed out. The accused was apprehended at the spot itself and the police took the injured to the hospital. It is testified that the accident occurred due to rashness of the bus driver. The statement of PW1 was recorded. Bus was seized vide memo Ex.PW1/B. One spectacle frame, one watch broken were also seized vide memo Ex.PW1/C. Challansheet was prepared against the accused vide memo Ex.PW1/D. The accused was also arrested in his presence. Personal search was also conducted in State v. Salauddin FIR No. 232/1997 Total Pages 12 his presence vide memo Ex.PW1/E bearing the signatures of the said witness at point A.
5. PW2 Ct. Rajbir, testified that on the given date, at about 1.20 pm the said witness was sent by the duty officer to the spot were he saw SI Prem Mittal and HC Dinesh who handed over the accused Salauddin as well as offending bus bearing no. DL 1P 8411 to him. Thereafter, the IO asked the said witness to go for getting the case registered.
6. PW3 CT Mazare Allam testified that he took the photographs of the offending vehicle. The said photographs and the negatives are Ex.PW3/1 to Ex.PW3/11.
7. PW4 Record Clerk, RML Hospital has testified he had seen the concerned Dr. S.K.Sahu write and sign during his tenure who had given his opinion upon the injuries on the person of Janvi and Sanjay having MLC no.7185/97 and 7192/97 at Hindu Rao Hospital who were later on admitted to RML hospital. The applications having opinion of the concerned doctor are Ex.PW4/A bearing his signatures of the said doctor duly identified by PW4 at point A.
8. PW5 Dr. D.K.Sharma testified that he has seen both the MLCs. Both the MLCs are dated 05.6.1997 and were Ex.PW5/A & ExPW5/B bearing the signatures of Yogender at point A respectively.
9. PW6 HC Surender Singh testified that he was duty officer on the given date from 12.00 mid night to 8.00 am. He received a ruqqa by Ct Rajbir sent through SI Prem Mittal. Thereafter, he got the case registered bearing FIR no.232/97. The said FIR is Ex.PW6/A bearing his signatures at point A (OSR).
State v. Salauddin FIR No. 232/1997 Total Pages 12
10. PW7 Harsh Panna La testified that on the given date, he received a telephone call regarding the accident of his cousin Kartik Panna Lal whose dead body was identified vide memo Ex.PW7/A and Hari Narayan, his brother in law received the dead body in his presence vide memo Ex.PW7/B.
11. PW8 Sh.Sanjay Barboda is the main eye witness/injured in the present case. He testified that on 05.6.1997 at about 1.00 am he alongwith 2 colleagues Janvi and Kartik Panna lal were returning after having dinner with other colleagues at IP college. When they came near IP College they saw one bus bearing no.DL 1P 8411 which was being driven by the accused present in the court on that day at a very high speed. The bus hit all the 3 of them and thereafter, hit the wall of the college and broke the wall and electricity pole. It is testified that 3 injured including him were rushed to Bara Hindu Rao Hospital by the police officials and other staff of the IP College. Mr.Kartik Panna Lal died in the said accident and the said witness PW8 and one Ms Janvi sustained injuries and were later on transferred to the RML Hospital from Hindu Rao Hospital where they were treated for 30-40 days. Police also recorded his statement.
12. After conclusion of prosecution evidence, the statement of the accused was recorded under Section 313 of Code of Criminal Procedure, 1973. Incriminating evidence was put to the accused. He denied all the allegations and stated that he is innocent and has been falsely implicated in this case. The accused opted not to lead any evidence in his defence.
Final arguments heard. Record perused.
13. The accused is charged for committing the offences under Sections State v. Salauddin FIR No. 232/1997 Total Pages 12 279 r/w 304A of Indian Penal Code.
14. Section 279 of Indian Penal Code, 1860 reads as under:-
"279. Rash driving or riding on a public way - Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both".
15. In the case of "Badri Prasad Tiwari v. State 1994 Cri. L. J. 389" it was held by Hon'ble Mr. Justice Arijit Pasayat as follows:
"5. Section 279, IPC deals with rash and negligent driving of any vehicle or riding on a public way in a rash and negligent manner so as to endanger human life or likely to cause hurt or injury to any person. In order to constitute an offence under Section 279, IPC, it must be established that the accused was driving the vehicle on a public way in a rash and negligent manner to endanger human life or likely to cause hurt or injury to any other person. For the purpose of Section 279 rash and negligence may be described as criminal rashness or criminal negligence. It must be more than mere carelessness of error of judgment. The essential ingredients of Section 279 are :
(i) Rash and negligent driving or riding on a public way.
(ii) The act must be such as to endanger human life or likely to cause hurt or injury to any person.
16. In order to prove the offence under Section 279 of Indian Penal Code, 1860, following requisites have to be proved by the prosecution.
(a) Accused was driving the vehicle on a public place;
(b) The act must be such as to endanger human life or likely to cause hurt or injury to any person.
17. In the present case the first and foremost ingredient to be proved by the prosecution is that at the time of accident the accused was driving the vehicle on a public place. In the present case the eye State v. Salauddin FIR No. 232/1997 Total Pages 12 witness/injured PW8 has categorically testified that when he was returning alongwith his 2 colleagues viz. Janvi and Kartik Panna lal, they saw a bus bearing no.DL 1P 8411 being driven by the accused who was duly identified by the said witness at a very high speed and the bus after hitting all 3 of them hit with the wall of the college and broke the wall and the electricity pole. Mr. Kartik Panna Lal died in the accident and the said witness PW8 and his colleague Janvi sustained severe injuries. Even PW1 testified that the accused who was present in the court on that day was apprehended from the spot itself. Thus, there is no dispute that the accused was driving the offending vehicle at a public place.
18. Secondly, the prosecution has to prove that the driving of accused was such as to endanger human life or likely to cause hurt or injury to any person. It is settled law that the word 'negligence' used in Section 279 of Indian Penal Code shall be proved by the prosecution beyond all reasonable doubts. The word 'negligent' in Section 279 of Indian Penal Code means criminal negligence and not merely a lack of judgment on the part of the accused. It has been further held in a catena of judgments that high speed does not amount to rash and negligent driving but the Court has to gather from the circumstances whether the vehicle was driven in a rash and negligent manner by the accused.
19. In the case of "Badri Prasad Tiwari v. State 1994 Cri. L. J. 389" it was held by Hon'ble Mr. Justice Arijit Pasayat as follows:
"5. Section 279, IPC deals with rash and negligent driving of any vehicle or riding on a public way in a rash and negligent manner so as to endanger human life or likely to cause hurt or injury to any person. In order to constitute an offence under Section 279, IPC, it must be established that the accused was driving the vehicle on a public way in a rash and negligent manner to endanger human life or likely to cause hurt or injury to any other person. For the purpose of Section 279 rash and negligence may be described as criminal rashness or criminal negligence. It must State v. Salauddin FIR No. 232/1997 Total Pages 12 be more than mere carelessness of error of judgment. The essential ingredients of Section 279 are :
(i) Rash and negligent driving or riding on a public way.
(ii) The act must be such as to endanger human life or likely to cause hurt or injury to any person.
For an offence punishable under Sec. 304-A, IPC, the point to be established is that the act of accused was responsible for resulting in the death and such act of the accused was rash and negligent although it did not amount to culpable homicide. To establish either of Sections 279 or 304-A rash and negligent has to be established, but only distinction is that in Section 279 rash and negligent act relates to the manner of driving or riding on a public way, while offence under Section 304-A extends to any rash and negligent act falling short of culpable homicide. As indicated above, rashness or negligence to be established must be more than an error of judgment. Distinction between rashness and negligence is that negligence connotes want of proper care, while rashness conveyes the idea of reckless doing of an act without consideration of any consequences.
20. In the case of "Beda Kanta Phukan v. State of Assam 1992 Cri. L. J. 1197" it was held as under:
"6. To bring home a charge under Section 279, I.P. C. prosecution has to prove not only the fact that the accused was driving the vehicle on a public way, but has also to prove that such driving was so rash, or negligent as to endanger human life or to he likely to cause hurt or injury to any other person. Criminal negligence or criminal rashness is an important element. Mere fact that the accused was driving the vehicle at high speed may not attract the provision of this Section and prosecution has to prove something more."
21. In the present case, the accident had occurred when the offending vehicle was driven at a very high speed by the driver/accused and hit against the 3 persons of IP College viz. PW8, Janvi and Kartik Panna Lal (deceased) who were returning after having dinner at IP College. When they came near the IP college, they saw one bus bearing no.DL 1P 8411 which was being driven by the accused present in the court on that day at a very high speed. The bus hit all the 3 of them and thereafter, hit the wall of the college and broke the wall and electricity pole. The manner in which State v. Salauddin FIR No. 232/1997 Total Pages 12 the accident took place clearly reveals that the vehicle was being driven in a rash and negligent manner.
22. As is stated the above testimony of PW8 the eye witness and injured has remained unrebutted and unimpeached on this point. Thus, the criminal negligence can be safely attributed to the driving of the accused. Further, I have perused the mechanical inspection report of the offending vehicle. In the mechanical inspection report it is categorically brought forth that the various parts were found OK. Thus, it cannot be said that due to some defect in break system or any other mechanical defect the accused was not able to stop the offending vehicle in time.
23. Even the postmortem report of the deceased as well MLCs of both the injured persons clearly reveals that the injuries were sustained owing to the blunt force impact caused due to road accident. Therefore, it can be safely inferred that the accused was driving the offending vehicle in a rash and negligent manner at the time of accident.
24. It is argued by the counsel for accused that there is no independent public witness to the accident and that the testimony of PW8, should not be relied upon. This aspect is dealt as under:
NON-JOINING OF INDEPENDENT PUBLIC WITNESS
25. It is settled law that non-joining of independent witnesses is not fatal to the case of the prosecution and further if there is no contradiction in the testimonies of the witnesses, same cannot be discarded only on the ground that the witnesses are interested witnesses.
26. It is settled law that conviction can be based on the testimony of State v. Salauddin FIR No. 232/1997 Total Pages 12 official witnesses and it is not necessary that in each and every case, public persons must be joined in investigation.
27. In the case of "Appabhai Vs. State of Gujrat AIR 1988 SC 696", it has been held as under:-
"It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of a pathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
28. In the case of "Pal Singh Vs. State of UP 1979 Crl. LJ 918", it has been held as under :-
"After the High Court had believed the eye witnesses Nos. 1 and 2 and having found that their testimony was absolutely credit-worthy and truthful, it could not have rejected the prosecution case merely because some of the eye-witnesses mentioned in the FIR were not examined."
29. In the case of "Takhaji Hiraji Vs. Thakore Kubersing Chamansing & Ors. 2001 IV AD (SC) 394", it has been held that :
"On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non- examination of such other witnesses may not be material. In such a case the Court ought to scrutinize the worth of the evidence adduced."
State v. Salauddin FIR No. 232/1997 Total Pages 12
30. In the present case, all the PWs have maintained consistency and hence, no adverse inference can be drawn on account of failing of prosecution to join independent public witness.
31. Further accused chose not to lead any defence evidence to prove his defence. Though the initial burden to prove the offence is on the prosecution but once prosecution has proved the guilt of the accused beyond any reasonable doubt and any defence has been taken by the accused then the burden shifts on the accused to bring evidence and prove his defence. Accused has not proved his defence either by cross- examining PWs or by leading evidence.
32. Further, in the case of "B. Nagabhusham Vs. State of Karnataka 2008 (5) SCC 730" it was observed that:-
"the dead body of the deceased child was found two feet away from the bus and three feet away from the pavement on the right side of the road and no mechanical failure was reported. Report of spot of mazahar revealed that the bus was dragged for about 20 to 25 feet after brake was applied and statement of PW1 is similar as regards several injuries. In these circumstances, it was held the maxim 'res ipsa loquitur' (the thing speaks for itself) can be applied in criminal cases under Sections 279 and 304A Indian Penal Code".
33. In the present case also, there is no contradiction of the testimony of prosecution witnesses. They stated that the bus was being driven at a very high speed. Infact, the manner in which the accident has happened, clearly reveals that the accused was negligent in driving the bus since after hitting all the 3 persons in question, the bus also broke the wall of the IP College and electricity pole.
34. As per the testimony of the PWs, it has been duly proved that the accused was driving the offending vehicle on the date of accident on a State v. Salauddin FIR No. 232/1997 Total Pages 12 public road in a rash and negligent manner as to endanger human life or likely to cause hurt or injury to any person. After the accident occurred in aforesaid manner deceased was rushed to hospital where he was declared as brought dead. Thereafter, the postmortem was conducted by PW2 as per the testimony of PW2.
35. At this stage, it is imperative to analyse the provisions u/s 304A IPC. OFFENCE UNDER SECTIONS 304A OF INDIAN PENAL CODE Section 304-A of Indian Penal Code:
"Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or both."
36. The essential ingredients to prove the offence under Section 304A of Indian Penal Code are as under :-
(i) That the act of accused is rash or negligent; and
(ii) By such rash or negligent act, death has been caused.
37. The first ingredient has been duly proved in view of the above discussion. Now the prosecution has to prove that the cause of the death of accused was the accident caused by the accused. The nature of injuries which has caused the death were ante-mortem which were caused by blunt force impact. It was also stated that the said injuries can be caused in a road accident. As per result of post-mortem, it is clear that the death of deceased was the direct consequence of the road accident. It has already been proved that the accident occurred due to the negligence of the accused. Hence the guilt of the accused for the offence under Section 304A of Indian Penal Code is also proved beyond reasonable doubt.
38. Section 337 & 338 of Indian Penal Code :-
"Whoever causes hurt to any person by doing any rash or negligent act as to endanger human life, or the personal safety of State v. Salauddin FIR No. 232/1997 Total Pages 12 others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or both."
"Whoever causes grievous hurt to any person by doing any rash or negligent act as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or both."
39. The MLCs of both injured persons Ex.PW5/A & Ex.PW5/B clearly make out the offence u/s 337, 338 IPC.
40. In view of the aforementioned facts and circumstances, I am of the opinion that prosecution has succeeded in proving the guilt of the accused for the offences under Sections 279, 337, 338 and 304A of Indian Penal Code. Accused is accordingly convicted for the offences under Sections 279, 337, 338 and 304A of Indian Penal Code.
Announced in the Open Court [SHEFALI SHARMA]
Today on 26.5.2012 MM-07 (NORTH)
DELHI
State v. Salauddin FIR No. 232/1997 Total Pages 12