Delhi District Court
State vs Prem Kumar on 18 April, 2018
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 10/08
PS Keshav Puram
State Vs Prem Kumar
Date of Institution: 11.06.2008
Date of Decision: 18.04.2018
JUDGMENT
(a) Serial Number of the case : 538530/2016
(b) Date of commission of offence : 12.01.2008
(c) Name of the complainant : Praveen Sethi
(d) Name of Accused, his : Prem Kumar
parentage & residence S/o Sh. Raj Narayan Shah
R/o Village Kadampura, PS Laukhi,
District Madhubani, Bihar
(e) Offence complained of : U/Sec 279/337/338/304A IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final arguments heard on : 24.03.2018
(h) Final Order : Conviction
BRIEF STATEMENT OF REASONS FOR THE DECISION
1. The accused Prem Kumar has been sent to face trial for committing offences under Section 279/337/338/304A IPC upon the allegations that on 12.01.2008 at about 08:50 PM near Mother Dairy booth, A-1 & C-1 block, Keshav Puram, Delhi, he was driving Truck bearing registration No. DL1GB2642 in a manner so rash or negligent as to endanger human life and personal safety of others and struck against one scooter bearing registration no. DL 8SS 4078, then hit against one Vikram TSR, then against one rickshaw and then collided with a house, causing of death of Deepak Kumar and Sh. Shravan Verma, grievous hurt to Kashi Ram and simple hurt to FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 1 of 26 Praveen Sethi.
2. After completion of investigation, charge-sheet was filed in the Court upon which cognizance of the offences was taken and accused Prem Kumar was summoned. After the accused entered appearance, copy of the charge-sheet alongwith the documents was supplied to him in compliance of Section 207 of the Code of Criminal Procedure 1973.
3. Vide order dated 05.10.2010, notice was served upon accused Prem Kumar for having committed the offences under Section 279/ 337/ 338/304A IPC by the Ld Predecessor and vide order dated 24.03.2018 an amended notice was served upon the accused due to certain omission in the original notice as framed to which he pleaded not guilty and claimed trial and did not claim any prejudice to have been caused to him by the omission in the framing of the notice .
4. To prove its case, the prosecution examined 15 out of the 26 cited witnesses.
5. PW-1 HC Ram Phool testified as to being on patrolling duty on 12.01.2008, when at about 9.10 pm he received a call regarding accident near the mother dairy booth on the road between A1 & C1 block near Keshav Puram, upon which he went to the spot and found a crowd gathered there and SI Bal Prakash and Ct. Kaptan were already present there. He further testified as to the injured having already been taken to the hospital by CAT Ambulance and PCR Van. He went on to testify as to being left at the spot while the IO and Ct. Kaptan went to BJRM and Sundar Lal Jain Hospital. He further testified as to one Truck bearing no. 2642, one two wheeler bearing no. 4078, one FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 2 of 26 TSR bearing no. 0847 and one rickshaw lying at the spot in an accident condition. He further testified as to the IO returning to the spot after 3-4 hours and as to Ct. Kaptan returning after some time along with copy of FIR. He further testified as to the IO getting the spot photographed and also as to all the vehicles being taken into police possession and deposited with MHC(M) at Police Station.
6. PW1 HC Ram Phool further testified as to going with the IO to SL Jain Hospital on the next day where the dead body of injured Suraj Lal @ Sarvan was received from the Mortuary and shifted to Mortuary BJRM Hospital where the inquest proceedings were conducted and the dead body was handed over to his relatives Dwarka Prasad and Lal Babu vide Ex.PW1/A after the postmortem. This witness was not cross examined by the accused despite opportunity.
7. PW2 HC Satyavir Singh being the Duty Officer proved the factum of registration of present FIR No.10/08 PS Keshav Puram Ex.PW-1/A on receipt of rukka from Ct. Kaptan sent by SI Bal Prakash. He was also not cross examined by the accused despite opportunity.
8. PW3 Sh. Praveen Sethi, i.e the complainant herein, testified that he was coming from Pitampura towards Rampura on 12.01.2008 at about 08:50 PM on a two wheeler Scooter bearing no. DL8SS4078 which he was driving with Deepak (deceased) being pillion rider and when they reached on the road between A1 & C1 Blocks, Keshav Puram, their scooter was hit from behind by one truck bearing no. DL 1GB 2642 which was being driven in such high speed that it dragged the scooter for about 8-10 paces after which it hit one FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 3 of 26 TSR Vikram which was stationary at the side of the road and then the truck driver turned the truck through the cut on the divider on the road to the other side of the road and hit one Rikshaw coming from opposite side and then collided with the wall. He further testified as to having suffered injuries on his head and other body parts but being conscious. He further testified as to Deepak(deceased) having become unconscious. He further testified that the accused being the driver of the truck got down from the truck but after public persons started gathering, he fled. He further testified as to police having come to the spot and as to the injured being removed by the Ambulance and PCR Vehicle.
9. PW3 Praveen Sethi further testified that he, Deepak and two other injured persons were taken to BJRM Hospital where his statement Ex.PW3/A was recorded while the other injured Rickshaw puller was taken to some other hospital. He correctly identified the offending truck Ex.P1, Scooter Ex.P2, TSR Vikram Ex.P3 and Rickshaw Ex.P4 from their photographs. He further testified as to identifying the accused at police station Keshav Puram on 13.01.2008 and as to the accused being arrested vide Ex.PW3/B. He further testified as to Deepak having expired in the hospital. He was duly cross- examined on behalf of the accused.
10. PW4 Bhola Yadav being the other occupant of the offending truck testified as to knowing the accused Prem Kumar because he is also a driver and the transport company where he works is situated at Lawrence Road near to Rampura. He further testified that in the month of January 2008, on the date of the accident at about 08:00 or 08:30 PM, he boarded the vehicle i.e. truck bearing no. 2642 from Britannia Chowk for going to Rampura as he had FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 4 of 26 gone to Shakur Pur for purchasing some personal articles and when they reached near Mother Dairy A & C Blocks Keshav Puram, the accused collided with a scooter and lost control over his truck, hit the truck with TSR Vikram, took turn on the other side of the road and hit one rickshaw coming from the opposite side and then collided the wall of one house. He further testified that as he was sitting on the conductor side of the truck which side collided with the wall of the house, he also sustained injuries. He further testified that the accused got down from the truck and fled from the spot. He further testified that the Ambulance arrived at the spot after sometime upon which he and 2-3 other injured persons were taken to BJRM Hospital Jahangirpuri by Ambulance and he went to his house from the hospital.
11. PW-4 Bhola further testified that on the next day, he was called by the police at the PS Keshav Puram where he saw accused sitting with his employer where he identified the accused who was arrested vide memo Ex.PW3/B. He further testified that the accident took place due to negligence of accused as the scooter was being driven in front of the truck and the accused first hit the scooter, then collided with the stationary TSR/Vikram and even then the accused could not control his vehicle and hit the rickshaw and collided with the wall of the house. This witness was duly cross-examined on behalf of the accused.
12. PW5 Sh. Ram Avtar Gupta and PW6 Sh Hem Chand Gupta testified as to receiving the dead body of Deepak in BJRM Hospital after postmortem vide receipt Ex.PW5/A. They were not cross examined on behalf of the accused despite opportunity.
FIR No. 10/08PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 5 of 26
13. Vide a separate statement recorded on 09.12.2011, the accused stated that he will not dispute the factum of identity of vehicle DL1GB2642 and vide order dated 12.12.2011, the superdar of the vehicle was discharged.
14. PW7 Retd. ASI Devender Kumar (Tech.) proved the mechanical inspection report of Tata Truck bearing no. DL1GB2642 Ex.PW7/A, Bajaj Scooter No. DL8SS4078 Ex.PW7/B and Vikram delivery Van bearing no. DL1LC0847 Ex.PW7/C and testified as to there being fresh damage on all the vehicles with the vehicles not being fit for road test. He was not cross examined despite opportunity.
15. PW8 HC Kaptan Singh testified as to having received a call regarding accident on 12.01.2008 at about 08:55 PM and having proceeded to the spot with SI Bal Prakash where lots of persons had gathered. He testified that no eye witnesses met them and that they were informed by public that the injured had been taken to Sundar Lal Jain Hospital by CAT Ambulance where after he accompanied the IO to the Hospital leaving Ct. Ram Phool at the spot. He further testified that Ct. Satender met them at the hospital and handed over one MLC to the IO as per which the patient was declared brought dead. He further testified that they were informed that the other injured were taken to BJRM hospital after which they went there and IO collected the medical examination of injured Bhola Nath who had left the hospital after treatment. He further testified that the IO also collected MLC no 21429 and 21430 and recorded the statement of injured of MLC 21429 who was fit for statement. He further testified that the patient who was examined vide MLC No. 21430 was shifted to Maharaja Agrasen Hospital.
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16. PW8 HC Kaptan Singh further testified as to the IO preparing the rukka and handing it over to him upon which he got the FIR registered and returned to the spot with the copy of FIR and original rukka and then again went to Maharaja Agrasen Hospital with the IO where they were informed that injured had expired and they shifted his body to Mortuary BJRM Hospital. He testified as to having returned to the spot where the truck bearing No. DL1G2642, one TSR DL 1RL 0847, one two wheeler scooter no. DL8SS4078 and one cycle rickshaw in accident condition were seized by the IO.
17. PW8 further testified that the postmortem of deceased Shravan was got conducted by the IO on next day and thereafter the dead body was given to his relatives. He further testified as to IO having taken photographs of the spot. He further testified that in the evening, truck owner came to PS with his driver namely, Prem Kumar and injured Bhola Yadav accompanied the truck owner. He further testified that IO gave notice U/S 133 MV Act to the owner of truck and in reply thereof, truck driver produced the original RC and copy of insurance papers of the truck which were seized by IO vide seizure memo Ex.PW8/A. He has also identified his signature thereon at point A. He further testified that the accused produced his driving license, which was also seized vide memo Ex.PW8/B and IO interrogated driver Prem Kumar and arrested him vide arrest memo Ex.PW3/B and he also correctly identified the accused in the court and went on to testify that in the meantime, injured Praveen Kumar also came to PS and identified accused being the driver of offending vehicle and accused Prem Kumar could not produce his surety, so he was sent to lockup. He was duly cross examined on behalf of the accused.
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18. PW9 Dr. Shipra Rampal, Radiologist BJRM Hospital testified as to having examined the X-Ray plates of two persons namely, Kashi Ram and Praveen Sethi on 14.01.2008 and having found a fracture of fibula of right leg of patient Kashi Ram with no bony injury being seen in the X-ray plates of skull of patient Praveen and also proved the detailed reports Ex.PW9/A & Ex.PW9/B. This witness was duly cross examined on behalf of the accused.
19. PW10 Sh. Sushil Kumar being the registered owner of Truck No. DL-1GB-
2642 proved his reply Ex.PW10/A to the notice under Section 133 MV Act and testified as to the accused Prem Kumar driving the vehicle on 12.01.2008 at about 08:50 PM. He was duly cross-examined by the accused.
20. PW11 SI Bal Parkash testified as having received DD no 25A on 12.01.2008, upon which he along with Ct. Kaptan reached at the spot i.e. A-1 Block, Mother Dairy, Keshav Puram, Delhi where he saw many public persons were gathered and one scooter with registration no. DL-8SS-4078 was at east side from the Mother Dairy, one Vikram TSR bearing no. DL- 1LC-0847 was in turtle condition at west side from the Mother Dairy, one truck bearing registration no. DL-1GB-2642 was opposite Mother Dairy and the front portion of the above-said truck was under the wall of house no. C- 1/88, Keshav Puram, Delhi after breaking the said wall and one sawari rickshaw was under the above-said truck in damaged condition.
21. He further testified as to having come to know from the public persons about the injured having been shifted to Hospitals through CAT and PCR vehicles and as to the beat Ct. Ram Phool having come whom he left him at the spot and PW11 along with Ct. Kaptan went to Sunder Lal Jain Hospital where FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 8 of 26 PW11 met Ct. Sikander who handed over MLC no. 6204 of Sharawan Kumar who was declared brought dead and was shifted to mortuary of Sunder Lal Jain Hospital. He further testified as to Ct. Sikander having handed the articles of the deceased to him which he seized vide memo Ex. PW-11/A.
22. He further testified that he then went to BJRM Hospital Jahangir Puri with Ct. Kaptan and collected the ME no. 2049 in respect of Bhola Yadav who had already been discharged, collected MLC no. 21429 of Deepak who had been shifted to Maharaj Agrasain Hospital, collected MLC no. 21430 of Kashi Lal who had also been discharged and also collected the MLC no. 21652 of Parveen who was admitted there and as he was fit for statement, he recorded the statement of injured Parveen Ex. PW-3/A, prepared the rukka Ex. PW-11/B and handed over the same to Ct. Kaptan who went to PS for the registration of the case and he came back after the registration of the case.
23. He further testified as to having returned to the spot i.e A-1 Block, Mother Diary, Keshav Puram when Ct. Kaptan came at the spot with original rukka and copy of FIR and handed them to PW11 who also took the photographs of the spot Mark A1 to Mark A15, seized the Swari Rickshaw, Vikram TSR, Scooter and Truck vide memos Ex. PW-11/C, Ex. PW-11/D, Ex. PW-1/E and Ex. PW-1/F. He further testified that he received the information regarding the death of Deepak at Maharaja Aggarsain Hospital after which he recorded the statement of Ct. Ram Phool and deposited the case property in Maalkhana.
24. PW11 further testified as to having reached Maharaja Agarsain Hospital with Ct. Kaptan and as to the dead body of Deepak having been shifted to BJRM FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 9 of 26 Hospital, Mortuary where he prepared the inquest papers Ex. PW-11/G, recorded the identification statement of the witnesses Ex. PW-11/H and Ex. PW-11/I and prepared handing over memo Ex PW5/A when dead body was handed over to the relatives of the deceased after postmortem and he recorded the statement of the witnesses and then returned to the PS with Ct. Captan.
25. He further testified that Sushil Kumar ie registered owner came at the PS in the evening of 13.01.2008 with accused Prem Kumar and Bhola Yadav to whom he gave the notice u/s 133 M.V.Act Ex PW10/B and who endorsed the notice that accused Prem Kumar was driving the vehicle at the time of incident. He further testified as to having seized the driving licence of the accused and documents of the offending truck vide Ex. PW-8/B and Ex. PW- 8/A. He further testified as to eyewitness Praveen Kumar having come to PS to know the condition of his friend Deepak and identified the accused to be the driver of the offending vehicle upon which the accused was arrested and personally searched vide Ex. PW-3/B and Ex. PW-11/J and as the accused failed to produce the surety, he was medically examined and sent to lock up.
26. He further testified as to having recorded the statement of witness and having prepared the site plan Ex PW1/K at the instance of Bhola Yadav after going to the spot. He also testified as to having gone to Sunder Lal Jain Hospital on 14.01.2008 with Ct. Ram Phool and relative of deceased Suraj Lal Verma @ Sarwan Verma and shifting the dead body of the deceased at BJRM Hospital, recording the identification statement of relatives Ex. PW- 11/L and Ex. PW-11/M, handing over the dead body to relative of deceased vide handing over memo Ex. PW-1/A after post mortem and recording the FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 10 of 26 statement of the witnesses.
27. He further testified that he moved the request for mechanical inspection of the above-said vehicles to ASI/ Technical Devender Kumar who handed over inspection report of all the vehicles Ex. PW-7/A, Ex. PW-7/B and Ex. PW- 7/C after the inspection. He correctly identified the accused in the court and also identified his signatures on the relevant documents. He was duly cross- examined by the accused.
28. PW12 ASI H. Rehman being the second investigating officer testified as to investigation of the case being marked to him after which he deposited the MLCs of Praveen and Kashi Ram in BJRM hospital on 05.02.08 for final opinion and received the same on 22.02.08 wherein concerned doctor opined on the MLC of Kashi Ram as grievous and MLC of Praveen as simple upon which he added section 338 IPC in challan. He further testified as to having collected the PMR of deceased Deepak and Sarwan, as to recording statement of Kashi Ram on 08.04.08 and filing challan in the court upon completion of investigation. He was not cross-examined despite opportunity.
29. PW13 Dr.Munish Wadhawan, proved the post-mortem report Ex.PW 13/A prepared by him after he conducted the postmortem on 13.01.08 on the dead body of Deepak Gupta who had been brought by SI Bal Prakash, PS Keshav Puram with alleged history of RTA dt. 12.01.08. He testified as to the cause of death being combined effect of cerebral damage and hemorrhagic shock due to hepatic rupture as a result of blunt force impact with all injuries being ante-mortem in nature and possible in manner as alleged. He was duly cross- examined on behalf of the accused.
FIR No. 10/08PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 11 of 26
30. PW14 Kashi Ram testified as to being present at L Market A-1 Block, Mother Dairy, Keshav Puram on 12.01.2008 at about 8.45 pm when his TSR was hit from behind due to which his leg was fractured and he also sustained injury on his ear, became unconscious and regained consciousness in BJRM Hospital. He further testified that due to the impact of the vehicle, his TSR had turned turtle. He denied having seen the driver of the vehicle who had hit his TSR. As he was resiling from his earlier statement, he was duly cross- examined by the Ld APP for the State during which he denied that the Truck bearing no. DL1GB2642 was being driven in a rash and negligent manner and had struck the scooter bearing registration no. DL8SS4078 from behind. He was not cross-examined by the accused despite opportunity.
31. PW-15 Dr. Neeraj Chaudhary, CMO BJRM Hospital proved the handwriting and signatures of Dr. Subhash, Dr. Sunesh, and Dr. Yusuf on the MLC No. 21429/08, 21652/08 and ME No. 2049/08 Ex.PW15/A to Ex.PW15/C as they had all left the services at the BJRM hospital and their present whereabouts were not known. He was not cross-examined despite opportunity.
32. Prosecution evidence was initially closed vide order dated 07.12.2015 by the Ld Predecessor, whereafter the statement of the accused was recorded and final arguments were heard. However, an application under Section 311 CrPC filed by the State to recall certain witnesses was allowed by the Ld Predecessor vide order dated 14.03.2016 whereafter PW15 was examined and vide his statement under Section 294 CrPC recorded on 03.06.2017, the accused did not dispute the genuineness of MLC no. 6204 dated 12.01.2008 FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 12 of 26 Ex Y1, of post mortem report 35/08 Ex Y2, of ME no.2255 dated 13.01.2008 Ex Y3, of ME no. 2383 dated 14.01.2008 Ex Y4, of MLC no. 21430 dated 12.01.2008 Ex Y5 and death summary of Deepak dated 13.01.2008 Ex Y6 upon which the prosecution dropped the witnesses qua the said documents and prosecution evidence was again closed.
33. Thereafter the additional statement of accused was recorded under Section 313 of the Code of Criminal Procedure wherein the additional incriminating evidence was again put to the accused who maintained his innocence claiming he had been falsely implicated as he was going in the right direction but the deceased persons came in front of his vehicle suddenly due to which the accident took place. The accused however chose not to lead defence evidence.
34. Final arguments advanced by Sh Vishnu Dev Yadav Ld counsel for the accused and by Ld. APP for State have been carefully considered along with the evidence on record as well as the written arguments.
35. It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts. Since the accused has been charged with having committed offence under Section 279 of the Indian Penal Code, 1860, it was for the State to prove that a) that the accused was driving a vehicle; b) he was driving the said vehicle on a public way; c) he was driving the vehicle in a rash and negligent manner; and d) he was driving the vehicle in such a manner so as to endanger human life, or to be likely to cause hurt or injury to any other person.
FIR No. 10/08PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 13 of 26
36. For the offence under Section 304A of Indian Penal Code, 1860, it was for the State to prove that Deepak and Shrawan Verma had died due to rash or negligent act of accused and that the act causing death did not amount to culpable homicide.
37. To prove the offence under Section 338 of the Indian Penal Code, 1860, it was for the prosecution to prove that a) the accused caused grievous hurt to Kashi Ram; and b) the same was caused by a rash and negligent act so as to endanger human life or the personal safety of others.
38. For establishing the commission of offence under Section 337 of the Indian Penal Code, 1860, it was for the prosecution to prove that a) the accused caused hurt to Praveen Sethi; and b) the same was caused by a rash and negligent act so as to endanger human life or the personal safety of others.
39. Hence, it was for the prosecution to prove
1. the identity of the accused being the driver of the offending vehicle
2. the factum of an accident having been caused by the offending vehicle
3. the accident to be result of the rash and negligent driving of the accused at a public place;
4. grievous injury to have resulted to the Kashi Ram from such rash and negligent act of the accused,
5. simple injury to have resulted to Praveen Sethi from such rash and negligent act of the accused, and
6. death of Deepak Kumar and Shrawan Verma to have resulted from such rash and negligent act of the accused.
FIR No. 10/08PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 14 of 26 Identity of the driver of the offending vehicle
40. The identity of the accused as being the driver of the Truck bearing number DL 1GB 2642 has been proved by the prosecution through the testimony of three of its witnesses. PW10 Sh Sushil Kumar being the registered owner of Truck bearing no DL 1GB 2642 in his reply Ex PW10/A to the notice under Section 133 Motor Vehicles Act has identified the accused Prem Kumar as being the driver of the vehicle during the time of the accident whom he also correctly identified in the Court during his testimony. PW4 Bhola Yadav being the other occupant of the Truck bearing no DL 1GB 2642 has also reaffirmed in his testimony that accused Prem Kumar was driving the said truck at the time of the accident and also identified him correctly in the Court. PW3 Praveen Sethi being one of the injured also correctly identified the accused Prem Kumar in the Court as being the driver of the Truck bearing no DL 1GB 2642 testifying that he had seen the accused driver when the driver had de-boarded his truck after the accident and had remained present at the spot for some time but fled after people started gathering there which testimony inspires confidence of the court as PW3 Praveen had sufficient time to see the accused at the time and place of accident.
41. From the consistent and creditworthy testimony of PW3 Praveen Sethi, PW4 Bhola Bath and PW10 Sushil Kumar, and as even in his additional statement recorded under Section 313 of Code of the Criminal Procedure, the accused has not disputed the factum of him being the driver of the Truck bearing no DL 1GB 2642 at the time of the accident, the factum of the accused driving the truck bearing number DL 1GB 2642 at the time of accident stands proved.
FIR No. 10/08PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 15 of 26 Factum of accident being caused by the offending vehicle
42. As per the testimony of PW3 Praveen Sethi, the Truck bearing no. DL 1GB 2642 had hit his scooter bearing number DL 8SS 4078 from behind at the time of the accident, dragging the scooter for about 8-10 paces, then as to the said Truck hitting one TSR/ Vikram which was stationary at the side of the road, then as to the said truck being driven by the accused to the other side of the road as there was divider in the road where it hit a rickshaw coming from the opposite side and then the truck collided with a wall. PW4 Bhola Yadav ie the other eye-witness has also testified on similar lines as PW3 Praveen as to the factum of the accident having been caused by the Truck bearing no. DL 1GB 2642. PW3 Praveen also correctly identified the offending Truck bearing no. DL 1GB 2642 through photographs Ex P1 in the Court.
43. It has come on record in the testimony of PW3 Praveen that he was conscious at that time and hence his identification of the truck as the offending vehicle inspires confidence of the Court even more so as he withstood the rigours of cross-examination wherein no question nor any suggestion was put to him as to the accident not having been caused by the offending vehicle ie Truck bearing registration no DL 1GB 2642 or as to PW3 Praveen not having seen the same. Further no motive for false implication of the accused by PW3 Praveen has been brought on record through the evidence as led and hence no reason has been brought on record to disbelieve the testimony of PW3 Praveen Sethi.
44. The testimony of PW3 Praveen is also corroborated by the testimony of PW4 Bhola Yadav who has testified on similar lines as the PW3 as to the factum of the accident having been caused by the Truck being driven by the accused.
FIR No. 10/08PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 16 of 26 The mechanical inspection report Ex PW7/A in respect of the Truck bearing no DL 1GB 2642 also corroborates the oral testimony of PW3 Praveen and PW4 Bhola as it reflects extensive damage on the Truck which report has gone un-rebutted since PW7 was not cross-examined in respect of the same.
45. In the absence of any reason to disbelieve the cogent and credit worthy testimony of the PW3 Praveen duly corroborated with other evidence on record, the prosecution has proved that the accident was caused by the truck of the accused bearing no. DL 1GB 2642.
Accident being result of rash and negligent driving of accused
46. To prove its case, it was also imperative for the prosecution to prove the rashness and negligence on the part of the accused while he was driving the offending vehicle at the time of the accident. It has to be borne in mind that a rash act is primarily an overhasty act. It is opposed to a 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. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution (Reference to judgment of Mohd. Aynuddin alias Miyam v. State of A.P. (2000) 7 SCC 72).
47. In the present case, PW3 Praveen has categorically testified that on 12.01.2008 at about 08:50 PM when he was coming from Pitampura towards Rampura on a two wheeler Scooter bearing no. DL8SS4078 and reached on FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 17 of 26 the road between A1 & C1 Blocks, Keshav Puram, the scooter which he was driving with Deepak (deceased) being pillion rider, was hit from behind by one truck bearing no. DL 1GB 2642 which was being driven in such high speed that it dragged the scooter for about 8-10 paces after which it hit one TSR Vikram which was stationary at the side of the road and then the truck driver turned the truck through the cut on the divider on the road to the other side of the road and hit one Rikshaw coming from opposite side and then collided with the wall. PW4 Bhola Yadav has duly corroborated the testimony of PW3 Praveen.
48. It is duly noted that it is the duty of a driver of a motor vehicle to drive the same with caution and reasonable care. However, in the present case, no such care or caution was taken by the accused as he hit the scooter being driven by PW3 Praveen from behind and at such high speed that the scooter of the PW3 Praveen was also dragged for about 8-10 paces. While it is no doubt true that the term high speed is relative and no specific evidence has been led by the prosecution to the speed at which the offending vehicle was being driven at the time of the accident, yet it can not be overlooked that the act of hitting the scooter from behind is in itself rash and negligent act on the part of the driver of the Truck ie the accused herein especially when it is not the defence of the accused that the accident took place due to any fault of the driver of the scooter ie PW3 Praveen herein like as to him having applied brakes suddenly or as to him having veered suddenly in front of the truck etc. ie as to the accident having been caused despite exercise of due care and caution of the driver of the vehicle.
49. Strength for this inference is drawn from the judgment of Hon'ble Delhi High FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 18 of 26 Court in Paras Nath V State of Delhi, 2004 Cri L.J. 731 where it has been observed in Para no.7 that "it is not the case of the appellant that a scooterist has applied the brake all of a sudden, therefore, the appellant was taken unaware which led the appellant's truck hitting the scooter from behind. The act of negligent can be clearly attributed by the petitioner as he was solely responsible of causing this accident without any fault of the scooterist." (emphasis supplied).
50. In the present case, the accused while driving his truck negligently did not stop even after hitting the scooter of the PW3 Praveen on which the deceased Deepak was riding pillion despite it having come on record in the mechanical inspection report Ex PW7/A that the brakes of the Truck bearing No DL 1GB 2642 were ok. The accused went on to hit the TSR/Vikram which was stationary at the side of the road as testified to by both PW3 Praveen and PW4 Bhola. This act of hitting a vehicle which is stationary at the side of the road also amounts to failure on part of the accused to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally and to the TSR/Vikram driver in particular.
51. The testimony of PW3 Praveen and PW4 Bhola is also consistent as to the accused driving the truck to the other side of the road after hitting the scooter and the TSR/Vikram and hitting a rickshaw coming from the opposite side and then hitting a wall. The negligence of the accused is also writ at large in his act of crossing over and hitting the rickshaw and the wall of the house.
52. No evidence has been led by the accused nor any suggestion has been put to any witness as to accident having been caused due to any negligence on the FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 19 of 26 part of the scooterist or of the TSR or of the rickshaw driver. No evidence has come on record as to the accident having been caused despite exercise of due care and caution of the driver of the vehicle as the accused has chosen to merely deny all the incriminating evidence put to him during his statement recorded under Section 313 of the Code of Criminal Procedure.
53. Though in his additional statement recorded under Section 313 of the Code of Criminal Procedure, the accused stated that the accident took place due to the fault of the deceased as he was going in the right direction and deceased suddenly came in front of his vehicle upon which he tried to save them but the accident took place, he led no evidence to prove his version and hence no evidence has come on record as to which deceased had come in front of the accused as two persons have lost their lives due to the rash and negligent driving of the accused and both were on opposite sides of the road. Further it can also not be lost sight of that the statement of accused under section 281 or 313 of the Code of Criminal Procedure is not the evidence of the accused. The explanation furnished at the time of recording such statement is to be proved by witness appearing in the witness box where they can be subjected to cross examination. Mere explanation given in the statement of accused under Section 281 or 313 of the Code of Criminal Procedure does not amount to proof. ( Reference to V S Yadav vs Reena Crl.A. No. 1136 of 2010 decided by the Hon'ble Delhi High Court].
54. In the present case, with the accused not stepping into the witness box and in view of the cogent, consistent and creditworthy testimony of the eye- witnesses PW3 Praveen and PW4 Bhola ie the other occupant of the offending truck at the time of the accident, the prosecution is held to have FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 20 of 26 proved beyond reasonable doubt the factum of accused driving his truck with rashness and negligence leading to the accident.
Injury to the victim Praveen and Kashi Ram and death of Deepak and Sharwan@ Suraj due to rash and negligent acts of the accused
55. The oral testimony of the PW3 Praveen as to him having sustained injuries on his head and other body parts due to the accident has been has been duly corroborated by the testimony of PW15 Dr Neeraj Chaudhary, CMO from BJRM Hospital who identified the signatures of the doctors and thus proved the MLC 21652/08 Ex PW15/B of the injured Praveen with nature of injuries as simple which MLC was prepared by Dr Subash and Dr Sunesh under the supervision of Dr Shakuntala who had left the hospital and whose whereabouts were not known with his signatures at point A. PW 15 Dr Neeraj was not cross-examined by the accused on this aspect despite opportunity and hence the documentary evidence has remained un-rebutted and the factum of simple injuries having been caused to the injured/PW3 Praveen has been duly proved by the prosecution.
56. PW14 Kashi Ram has also testified that as a result of the accident, he had fractured his leg and also sustained injury on his ears. He was not cross- examined by the accused on this aspect and hence testimony went unrebutted. PW9 Dr Shipra has proved the factum of fracture of fibula of right leg of the injured Kashi Ram vide her report Ex PW9/A and the MLC Ex Y5, which has been admitted by the accused vide his statement under Section 294 of the Code of Criminal Procedure, corroborates the factum of grievous injury having been sustained by the injured Kashi Ram as a result of the accident. Hence the prosecution has also been able to prove that the FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 21 of 26 accident resulted in grievous injury to Kashi Ram.
57. The factum of the death of Deepak has also been sufficiently proved by the prosecution in as much as PW13 Dr Munish Wadhwan proved the post mortem report of the deceased Deepak opining that the cause of death was the combined effect of cerebral damage and hemorrhagic shock due to hepatic rupture as a result of blunt force impact with all injuries being ante- mortem in nature. He also proved the post-mortem report Ex PW13/A of Deepak as prepared by him. Nothing material was elicited in his cross- examination.
58. The factum of the death of richskaw puller Shravan @ Suraj has also been sufficiently proved by the prosecution in as much as the accused has admitted the MLC 6204/08 ExY1 of the deceased Shravan @ Suraj who had been brought dead at the hospital with alleged history of Road Traffic Accident.
59. Hence the prosecution has been able to prove beyond reasonable doubt the factum as also the nature of Injury to the victims Praveen and Kashi Ram and death of Deepak and Sharwan@ Suraj due to rash and negligent acts of the accused.
The arguments of the accused
60. In the written arguments as filed, the accused has taken the defence that an unknown vehicle had hit the scooter of the injured Praveen Sethi who wanted to cut through the divider to cross the road. The accused has also taken the plea that there was dense fog due to it being winter season. It has also been FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 22 of 26 argued that it was the scooter which was being driven rashly and in high speed by PW3 and that when the scooterist came in front of the truck, the accused had honked the horn, turned the vehicle towards the right and applied brakes stopping at the crossing without hitting the scooter or the rickshaw. It is pertinent to note that the defence as taken in the final arguments has not been put to any of the prosecution witnesses at the time of their cross-examination who could have either corroborated the defence or contradicted it. Hence the defence as raised for the first time at the time of final arguments appears to be after thought and does not create any reasonable doubt as to the truthfulness of the version as proved by the prosecution.
61. Another plea has been raised by the accused in the written arguments that as there was dense fog and the PW3 had suffered head and other injuries, it was impossible for him to have seen the truck hit the TSR and the rickshaw. However, during the entire cross-examination of PW3 by the accused, not even a single question nor any suggestion was put to PW3 as to him not having seen the accident or as to there being any fog at the place of incident at the time of incident. The accused also did not put any question to any medical witness to prove that it was not possible for PW3 to have seen the truck hitting the TSR or rickshaw given the nature of his injuries. The accused has also not led any evidence to prove that at the time of the accident, there was any fog much less dense fog and hence the argument as raised is devoid of merits and appears to be afterthought.
62. Another argument raised by the accused is that the PW14 Kashi has not supported the testimony of PW3 Praveen and has turned hostile. However, FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 23 of 26 there is no merit in the argument as raised as now it is well settled by the decisions of the Hon'ble Apex Court that the evidence of a prosecution witness cannot be rejected as a whole, merely on the ground that the prosecution had dubbed him 'hostile' and had cross- examined him. Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Court to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Court finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be credit worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Court should, as a matter of prudence, discard his evidence in toto. (Reference is made to Syad Akbar vs State Of Karnataka AIR 1979 SC 1848)
63. In the present case, the PW14 Kashi Ram has corroborated the case of the prosecution to the extent that his TSR was hit from behind and that he had suffered injuries as a result thereof. No evidence has been brought on record to disbelieve this part of the testimony of the PW14. The fact that the witness PW14 turned hostile in respect of further chain of events does not in any manner take away from the creditworthiness of the testimony of PW3 Praveen whose testimony as a natural witness has inspired confidence of the court especially in the absence of any major contradiction and in the absence FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 24 of 26 of any motive for false implication having been proved by the accused. Hence the mere fact that PW14 has not corroborated the testimony of PW3 is not sufficient to give rise to any reasonable doubt as to the guilt of the accused.
64. Another argument as raised by the accused is that in his cross-examination, PW4 Bhola has denied having seen the accident. However, during his further cross-examination he further denied that he not seen any accident or that he had not accompanied the accused that day implying thereby that he had accompanied the accused on that day and had also seen the accident. Hence there is no material contradiction in the testimony of PW4 Bhola.
Decision
65. In view of the above discussion and as no material contradiction has come on record in respect of the investigation carried out by the investigating agency, as the prosecution has been able to discharge the onus cast upon it and has proved beyond reasonable doubt that the accused was driving his truck bearing number DL 1 GB 2642 in a rash and negligent manner resulting in the accident and causing injuries to Praveen, Kashi and death of Deepak and Suraj@Shraven, the accused Prem Kumar S/o Sh Raj Narayan Shah is convicted of offences under Section 279/337/338/304A IPC in FIR no. 10/08, PS Keshav Puram.
66. Copy of judgment be given free of cost to the accused.
Announced in the open court on 18.04.2018 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 26 pages and each page bears my FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 25 of 26 signature.
(POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 10/08 PS Keshav Puram U/s 279/337/338/304A IPC State Vs Prem Kumar Page No. 26 of 26