Delhi District Court
District Budaun (U.P) vs State on 13 May, 2022
IN THE COURT OF SHRI GAGANDEEP SINGH : SPECIAL JUDGE
(NDPS): NORTH DISTRICT: ROHINI COURTS : DELHI
CRIMINAL APPEAL No. 49/2020 (DLNT010020372020)
Akbar
S/o Bhure
R/o Village Rasulpur Kalan
P.S Zareef Nagar
District Budaun (U.P) ...Appellant
V.
State
(Government of NCT of Delhi) ....Respondent.
Date of Institution : 29.02.2020
Arguments Heard On : 23.03.2022
Judgment Passed On : 13.05.2022
JUDGEMENT
1. This is Criminal Appeal preferred by the appellant ( Accused before the Ld. Trial Court) against the judgment dated 21.01.2020 and order on sentence dated 08.02.2020 passed by the court of Ld. Metropolitan Magistrate , North District, Rohini Courts, convicting the appellant herein for the offence under Section 279/304A IPC.
Akbar Vs. State 1 /10
2. The facts in brief as pleaded are that as per the case of the prosecution on 06.06.2009 at about 9:30 a.m. at road no.14 and shop 260 Azad Pur Mandi, Delhi, accused/appellant was found driving the offending truck bearing registration No. UP 76 H 8252 in a rash and negligent manner so as to endanger human life. That while driving so, the accused/appellant struck the offending truck against one lady namely Meena who later on expired due to the injuries suffered in the accident and accordingly the present FIR was got registered. After the completion of the investigation, the chargesheet was filed in the court of Ld. Metropolitan Magistrate for the offence under Section 279/304A IPC.
3. The prosecution, in order to establish the case against the appellant/accused, examined 12 witnesses in all:
1. Sh. Dharam Nath (PW1), Complainant/Eyewitness
2. Sh. Kailash (PW2), Eyewitness
3. Anil Sharma (PW3), Photographer
4. Santosh (PW4), Identifier of Dead of the deceased.
5. Iqbal Singh (PW5), Owner of offending vehicle/Superdaar
6. ASI Kusum Lala (PW6), Duty Officer
7. Retired ASI/Tech Devender Kumar.
8. Constable Rajpal (PW8), Part/Witness to Investigation Akbar Vs. State 2 /10
9. Hari Das (PW9) Part/Witness to Investigation
10. Subhash (PW10)
11. Dr. K.B Goel (PW11), conducted the postmortem.
12. Retired SI Mangat Ram (PW12), Investigating Officer (I.O).
4. The statement of the accused/appellant was then recorded under Section 313 Cr.P.C and after hearing the final arguments, Ld. Metropolitan Magistrate convicted the appellant herein vide the impugned judgment under Section 304A and 279 IPC.
5. The said impugned judgment and order on sentence have been challenged by the appellant primarily on the following grounds:
(i) The Ld. Trial Court has failed to appreciate the factual matrix of the case . That eye witness Dharam Nath ( PW1) in his cross examination admitted to the fact that inquiry was made from him at the Police Station and the hospital. Apart from that Kailash (PW2) in the crossexamination too deposed ambiguously and further admitted to the fact that number of trucks were parked at the spot at the time of incident. Therefore, there was no possibility of any fast, rash or negligent driving as alleged.
(ii) The Ld. Trial Court has failed to appreciate the fact that Ct. Hari Das (PW9) also admitted to the fact that when they reached at the spot at about 10:40 a.m., many truck's were stationed there. Similar Akbar Vs. State 3 /10 response was given by IO/SI Mangat Ram (PW12) in the cross examinations. But all the said facts have been ignored by the Ld. Trial Court and it has been held that the appellant/accused was driving the vehicle in a fast speed as well as in rash and negligent manner which led to the accident in question. The driving of any vehicle in fast speed was not at all possible at the spot in question.
6. Ld. Counsel for the appellant/accused, in support of the said grounds of appeal, has further argued that the place in question i.e Azad Pur Mandi where the accident occurred, has all the times number of trucks parked on the road in question and hence, there was no question of any fast or rash driving as has been alleged. His defence of accident being caused by some other truck too has been ignored . Therefore, findings of the Ld. Trial Court on this account against the record and accordingly, liable to set aside.
7. Per contra, Ld. Chief PP for the State argued that there is no legal infirmity in the order of the Ld. Trial Court. The Ld. Trial Court has appreciated the evidence of the eyewitness namely Dharam Nath (PW1) who is the husband of the deceased and was present there. He clearly deposed that they both were going to purchase potatoes at the time when the accident in question occurred. His version on the aspect of manner of the driving is not rebutted in the entire crossexamination. Therefore, it is argued that there is no infirmity in the order of the Ld. Trial Court which warrants any interference.
Akbar Vs. State 4 /10
8. Heard and considered the record as well as contentions of the parties.
9. The accused has been found guilty vide the impugned judgment for the offence of driving his truck bearing registration No. UP 76 H 8252 in a rash and negligent manner and the said manner of driving leading to the death of one pedestrian namely Meena. As far as the death of said victim Meena Devi and the cause of the same being due to road side accident injuries , there is no dispute as is reflected from the postmortem report Ex PW11/A. The postmortem report categorically opines cause of death as under:
"Cause of death is combined effect of CranioCerebal damage, shock hemorrhage and respiratory distress etc consequent upon facial, lever and chest. All the injuries were antemortem in nature caused by force impact and possible in road side vehicular accident."
10. So, the only disputed fact which is assailed in the present appeal is as to whether rash or negligent driving on the part of the accused/appellant being the driver of the offending vehicle was the sole cause of the accident or not. Further his defence that his truck did not cause the accident.
11. Before appreciating the facts in the present case, the term "rash and negligent driving" which is the bone of contention needs to appreciated. The said terms have been interpreted before the Hon'ble Supreme Court in case titled In Mohd. Aynuddin @ Myran v. State of A.P. (2000) 7 SCC 72, the Apex Court has drawn the distinction between rash and negligent act as under:
Akbar Vs. State 5 /10 "A rash act is primarily an over hasty act It is opposed to a deliberate act. Still a rash act can be 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."
12. In the said backdrop, the version given by Dharam Nath (PW1) and Kailash (PW2) who both are the eyewitnesses and have supported the case of the prosecution on the said aspect needs to be appreciated. The Ld. Trial Court in the impugned judgment has heavily placed reliance on the versions given by both of the said witnesses namely Dharam Nath (PW1) and Kailash (PW2) and further has applied the legal maxim "res ipsa locquitor".
13. Shri Dharam Nath (PW1) is the husband of the victim/deceased as well as the complainant at whose the FIR in question got registered. The presence of PW1 at the spot is not disputed. PW1 was found present at the spot after the I.O SI Mange Ram (PW12) alongwith Constable Hari Das (PW9) reached at the spot at about 10:40 a.m. after receiving DD No.15A dated 06.05.09. The statement of the PW1 was recorded at the spot though in his crossexamination, PW1 claimed that inquiry was made from him at the police station as well as hospital. But, PW1 denied the suggestion on the part of accused/appellant that Akbar Vs. State 6 /10 his signatures were obtained either on blank papers or obtained only in the police station. The mere inquiry made from PW1 at the police station cannot be the ground to discard his version or it having any effect on his presence at the spot. The crossexamination also reflects that no question was put on his claim of being present at the spot alongwith the deceased at the time of the accident. Even no suggestion to this effect has been given to PW1. Sh. Dharam Nath (PW1), further as to the manner in which the accident occurred, deposed that while they reached at Shed No.40 near Shop No.260, they stood up near one stationary truck bearing No. UP81 W9433 when the offending truck bearing No. UP176H 8252 being driven by the accused/appellant came at a high speed as well as in a rash and negligent manner. It thereafter hit against his wife Meena due to which she got crushed in between the aforesaid both the trucks. His wife Meena succumbed to the injuries at the spot itself. On the said manner of driving and the manner of accident, not a single question was put to the said witness in the entire cross examination. Apart from bald suggestions regarding being not driven at a fast speed, there is nothing in the entire crossexamination which puts any question mark over the said two vital aspects as deposed by PW1.
14. Now, coming to the version given by Kailash (PW2) who too was present at the spot. PW2 too had gone to purchase potatoes and was present at Shed No.14 near Shop No. 260 , the offending truck came at a high speed as well as in rash and negligent manner and hit against Meena Devi due to which she got crushed in between two trucks. In the crossexamination, PW2 admitted that number of trucks were stationed at the spot i.e area along the road though he was Akbar Vs. State 7 /10 not able to depose about the number of said other trucks or the offending truck numbers in the crossexamination which was recorded on 23.06.2018 i.e after about nine years of incident in question. The said inability on the part of PW2 to depose about the details of trucks like registration number or colour after about nine years of the incident in question is only natural conduct of a reasonable person The said details are lost from the memory after lapse of considerable time. His version on the aspect of manner of accident, also does not in any manner contradicts or puts any question over the version given by Dharam Nath ( PW1 ). His version categorically discards the argument on behalf of appellant that there was no scope of rash driving at the spot being crowded area.
15. Apart from that the other circumstantial evidence produced by the prosecution for proving the factum of manner of driving as well as lack of care and caution by the accused/appellant while driving the offending truck which resulted into the death of deceased Meena Devi is the mechanical inspection report proved by Retired ASI/Tech Devender Kumar (PW7) and photographs proved by Anil Sharma (PW3). Anil Sharma (PW3) is photographer who was called at the spot by the I.O and he clicked the photographs on the very same day at about 12:30 1:00 p.m which are Ex.P1 to Ex.P7. There is no question mark over the said photographs or Scene of Crime (SOC) being disturbed . The photographs Ex.P1 to Ex.P7 quite apparently reflects the story given by Dharma Nath (PW1) to be truthful and reliable. It reflects that the offending truck has hit against a stationary truck through its left side front. The body of the deceased is too lying crushed in between the said two trucks which again fortifies the story of manner of accident Akbar Vs. State 8 /10 and the manner of the driving as deposed by PW1 to be true and trustworthy. It also destroys the argument on behalf of appellant regarding there being no scope of rash driving at the spot . Rather it shows indifference of driver to the consequences of his act of driving the vehicle in fast speed in a crowded mandi area.
16. Similarly, Retired ASI/Tech Devender Kumar (PW7) proved the mechanical inspection report of offending truck as Ex.PW7/A and that of the stationary truck as Ex.PW7/B. The fresh damages recorded in the report too corroborates the fact of manner of driving and the manner in which the accident took place/occurred. Similarly, the site plan Ex.PW12/E too corroborates the said fact of offending vehicle having hit against the stationary truck and the deceased getting crushed in between the two trucks. Thus, the said evidence produced by the prosecution that is the version given by Dharam Nath (PW1) coupled with the other corroborating evidence i.e Photographs Ex.P1 to Ex.P7, Mechanical Inspector Report Ex.PW7/A and Ex.PW7/B and the Site Plan Ex.PW12/E only fortifies the the case of the prosecution. The said fact also shows the applicability of legal maxim "res ipsa locquitor" i.e "Things Speak for Themselves" as has been held by the Ld Trial Court . The driving of a truck in a crowded place i.e mandi area where number of trucks are stationed and huge crowd visiting there, in a fast speed and thereafter striking the offending truck against a stationary truck without any reason or intervening cause only reflects the lack of care and caution and the driver being not at all being concerned about consequences of the acts .
Akbar Vs. State 9 /10
17. Now coming to the defence of the accused that his truck did not cause the accident. The said defence on face of it is liable to be rejected being bald defence only. If indeed the accident is not caused by the offending truck, then onus was upon the accused being the driver of the offending truck and being present at the spot to disclose about the manner of accident .It is a fact within the special knowledge of the accused, but he failed to do so . There is no crossexamination of IO Retired SI Mangat Ram (PW12) on the said aspect. No question was put to him regarding involvement of the any other vehicle in the accident.
18. In view of the abovediscussed reasons and observations, I am of the considered opinion that there is no legal infirmity in the impugned order which calls for any interference and hence, the same is upheld. The appeal is accordingly dismissed.
19. TCR be sent back with a copy of this order.
20. Appeal file be consigned to Record Room.
Announced in the Open Court (GAGANDEEP SINGH)
On 13.05.2022. Special Judge (NDPS):
North, Rohini Courts, Delhi
Akbar Vs. State
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