Delhi District Court
Title State vs . Banti Singh on 28 February, 2023
IN THE COURT OF MS. HIMANSHI TYAGI,
METROPOLITAN MAGISTRATE-03, EAST
KARKARDOOMA COURTS : DELHI
JUDGMENT
FIR No. 702/2015
Police Station Ghazipur
Unique Case ID No. 12702/2016
Title State Vs. Banti Singh
Name of complainant Smt. Sanju Devi
Name of accused Banti Singh, S/o Sh. Kalu Singh
R/o B-335, Gali No. 6, Chopal Wali
Gali, Salimar Village, Delhi.
Date of institution of challan 10.02.2016
Date of Final arguments 08.02.2023
Date of pronouncement 28.02.2023
Offence complained of Under Section 279/304-A
Offence charged with Under Section 279/304-A
Plea of the accused Pleaded not guilty
Final order Convicted
BRIEF REASONS FOR THE DECISION OF THE CASE:-
This is the prosecution of accused Bunty Singh S/o Sh. Sh. Kalu Singh R/o B-335, Gali No. 6, Chopal Wali Gali, Salimar Village, Delhi, pursuant to the charge sheet filed by PS Gazipur for Digitally signed by HIMANSHI commission of offences punishable U/s 279/304-A IPC, subsequent to HIMANSHI TYAGI TYAGI Date:
2023.02.28 17:35:54 +0530 FIR No. 702/2015 State Vs. Bunty Singh page 1 of 16 the investigation carried out by them in FIR No.702/2015 dated 24.07.2015.
02. As per the story of the prosecution, on 24.07.2015, at about 02:15 AM near Phool Mandi, Gazipur , accused was driving a vehicle i.e. car bearing registration no. DL-1LV -7804 in negligent manner and at high speed, and while driving so, he hit one Neetu and thereby caused her death. Accordingly, after the investigation, police filed the present charge sheet against the accused for commission of offences punishable U/s 279/304-A IPC.
03. Complete set of charge sheet and other documents were supplied to the accused. After hearing the arguments, Notice u/s 251 Cr.P.C. for offences punishable under section 279/304-A IPC was served upon the accused on 12.04.2017, to which he pleaded not guilty and claimed trial.
04. The prosecution in support of present case has examined total 13 witnesses, which are as follows:-
Serial Name of the Exhibited documents Number of witnesses witnesses PW1 Smt. Sanju Devi 1. Statement of the witness/original Digitally signed by complaint Ex. PW1/A HIMANSHI HIMANSHI TYAGI
2. Site plan Ex. PW1/B TYAGI Date:
2023.02.28 17:36:00 +0530 FIR No. 702/2015 State Vs. Bunty Singh page 2 of 16
3. Seizure memo of offending vehicle Ex. PW1/C
4. Seizure memo of documents of offending vehicle Ex. PW1/D, PW1/E and PW1/F
5. Arresting document Ex. PW1/G and Ex. PW1/H.
6. Statement regarding dead body identification Ex. PW1/I.
7. Dead body handing over memo Ex. PW1/J.
8. Photographs of Jeep car bearing No. DL-1LV-7804 Ex. P-1 (colly.).
PW2 Sh. Bambam Dass 1. Dead body handing over memo Ex. PW1G.
PW3 ASI Kundan 1. Copy of the FIR Ex. PW3/A. Singh 2. Endorsement on rukka Ex.
PW1/A.
PW4 ASI Rohtash DD No. 3-A Ex. PW4/A.
PW5 Ct. Rajender 1. Arrest memo Ex. PW1/G.
2. Personal search memo Ex.
PW1/H.
3. Seizure memo of accident vehicle Ex. PW1/E.
4. Seizure memo of DL of accused Ex. PW1/F. PW6 Ct. Yogesh Kumar -
PW7 SI Brijender Singh 1. Statement of complainant Ex.
PW1/A
2. Rukka Ex. PW7/A.
3. Notice u/s. 133 MV Act Ex. Digitally signed by PW7/B. HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.02.28 17:36:08 FIR No. 702/2015 State Vs. Bunty Singh page 3 of 16 +0530
4. Reply of the notice u/s. 133 MV Act Ex. PW7/C.
5. Seizure memo of the documents of offending vehicle Ex. PW1/C, Ex. PW1/D, Ex. PW1/E and Ex.
PW1/F.
6. Arrest memo Ex. PW1/G.
7. Personal Search memo Ex.
PW1/H.
8. Bail bonds Ex. PW7/C.
9. Site plan Ex. PW1/B. PW8 T.U. Siddiqi 1. Mechanical inspection report of offending vehicle Ex. PW8/A.
2. Photographs of offending vehicle Ex. P-1 (colly.).
PW9 Dr. Virender 1. MLC Ex. PW9/A PW10 Dr. Ashok Sagar 1. Postmortem report of deceased Neeta Kumari Ex. PW10/A. PW11 SI M.L. Meena -
PW12 Retired SI Om Pal 1. Photographs of Mahindra Balaro Singh bearing No. DL-1LV-7804 is Ex. P-
1 (colly.).
PW13 Lalu Singh 1. Notice Ex. PW7/C.
2. Superdarinama Ex. PW13/A.
3. Photographs of offending vehicle Ex. P-1 (colly.).
Digitally
05. After examination of the above prosecution witnesses, at signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
request, PE was closed by the Ld. Predecessor Court vide order dated 2023.02.28 17:36:14 +0530 FIR No. 702/2015 State Vs. Bunty Singh page 4 of 16 23.01.2020.
06. Statements of accused was recorded U/s 313 Cr.P.C on 17.02.2021 by the Ld. Predecessor Court, wherein all the incriminating circumstances appearing in evidence were put to him to which he pleaded innocence and stated he is innocent and has been falsely implicated in the present matter. He further stated that he was driving the vehicle in moderate speed and suddenly deceased came in front of his vehicle, no accident was caused due to his negligence and the negligence was on the part of the deceased. He refused to lead any defence evidence.
ARGUMENTS:
07. Final arguments heard from Ld. APP for the State and from Ld. Counsel for accused Sh. Mohd. Rafi. During final arguments, The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the cross examination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Hence, Digitally benefit of doubt must be given to the accused. signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
FINDINGS AND REASONS THEREOF:-
2023.02.28 17:36:20 +0530 FIR No. 702/2015 State Vs. Bunty Singh page 5 of 16
08. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused is indicted for the offences under section 279/304-A IPC.
(a) Section 279 IPC provides punishment for offence of driving a vehicle 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.
(b) Section 304-A IPC provides punishment for causing death to any person by doing any rash or negligent act, not amounting to culpable homicide.
09. To bring home the guilt of the accused under sections 279/304 IPC in road accident cases resulting in death of a person, following ingredients are required to be proved:-
a). That the accused was the person driving the vehicle at the relevant point of time.
b). That the accused drove the same in a rash and negligent manner.
c). That death of the victim (in case of Section 304-A of IPC) was the direct and proximate cause of the injuries suffered by way of rash and negligent driving of the accused.
Digitally signed by HIMANSHI
10. While the first ingredient needs to be established beyond HIMANSHI TYAGI TYAGI Date:
2023.02.28 17:36:26 FIR No. 702/2015 State Vs. Bunty Singh page 6 of 16 +0530 reasonable doubt with the aid of eye -witnesses and circumstantial evidence, and the third ingredient needs to be proved by medical evidence; it is the second ingredient which requires inter-pretation and explanation. This second requirement for proving the guilt of the accused is that the death or grievous hurt had been caused as the accused was driving the vehicle in a rash and negligent manner.
11. The words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterised by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the case of "S.N. Hussain v. State of Andhra Pradesh", AIR 1972 SC 685 as under :
"Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case."
Digitally 11.1 It has been held in Bhala Chand Waman Rao Pathe Vs. State signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.02.28 17:36:32 FIR No. 702/2015 State Vs. Bunty Singh page 7 of 16 +0530 of Maharashtra (SC 1964), that there is a difference between a rash act and a negligent act. Criminal negligence is the gross and culpable, neglect or failure to exercise reasonable and proper care and to guard against injury, either to the public generally, or to an individual in a particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of person to have adopted. Negligence is an omission to do which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The imputability arises from the 'neglect of the civic duty of circumspection'. On the other hand, culpable rashness is acting with the consciousness that the mischievous effects will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and if he had exercised caution, he would have had the consciousness that illegal consequences may follow, but continues with the act in a vain hope that they will not, and often, with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from 'acting despite the consciousness'.
11.2 It has been held by Hon'ble Supreme Court of India in Ratna Shalvam Vs. State of Karnataka (2007 3 SCC 474) that Section 304 A IPC applies to cases where there is no intention to cause death, and no knowledge that the act done, in all probability, will cause Digitally death. This provision is directed at offences outside the range of signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.02.28 17:36:37 FIR No. 702/2015 State Vs. Bunty Singh page 8 of 16 +0530 Section 299 and 300 of IPC. The provision applies only to such acts which are rash and negligent, and are the direct cause of death of another person. Negligence and rashness are essential elements U/s 304-A IPC. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient, considering all the circumstances of the case
12. In the case at hand, it has been admitted by the accused that he was driving the car no. DL-1LV -7804 on the alleged date, time and place and that his car had hit the deceased. The accused has not disputed his identity or presence at spot. The factum of accident has not been disputed by the accused nor has he disputed his identity or that of the above said car. Moreover the star and eyewitness PW 1 has identified the accused before the court. This identification is completely reliable as PW1 had also deposed that the accused was driving the offending vehicle and that after hitting her daughter, the accused came out of the vehicle and took both of them to the hospital. In her cross examination dated 07.06.2018 the witness also denied the suggestion that there was darkness at the spot and she also stated that the area of the incident is a Mandi and ample light remains there. Further the owner of the vehicle Sh Kalu Singh has been examined as Digitally signed by PW 13 who has proved the notice given u/s 133 MV Act which is Ex HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.02.28 17:36:43 FIR No. 702/2015 State Vs. Bunty Singh page 9 of 16 +0530 PW7/C. This shows the identity of the accused as the driver of the offending vehicle i.e. car bearing registration no. DL-1LV -7804 is not in dispute and this fulfills the first ingredient for the offences us 279/304 A IPC.
13. The next question before the court is whether the accused was driving the car in a rash and negligent manner, and had deceased Neetu has died due to the injuries suffered in this accident.
14. The testimony of the eye witness PW-1 Smt. Sanju Devi has remained intact during the entire examination and no material discrepancy has been found in the same. She has clearly stated the entire incident, manner of the driving of the vehicle and how the car ran over the deceased. The witness has stated that she could not anticipate that any vehicle was coming as there was no blowing of horn and light given by the offending vehicle and the the offending vehicle while coming in high speed suddenly hit and ran over her daughter. She has further deposed that accused had turned the vehicle in high speed towards their side rather than going straight in the road. She further deposed that the offending vehicle had come from the side of the Phool Mandi and while taking the turn accused drive the vehicle in high speed on the extreme left side of the road where she was standing with her daughter to go towards the washroom. The Digitally signed by HIMANSHI HIMANSHI TYAGI witness had identified the accused in the court. The witness was TYAGI Date:
2023.02.28 17:36:50 +0530 FIR No. 702/2015 State Vs. Bunty Singh page 10 of 16 thoroughly cross examined by the counsel of the accused however the accused has not been able to impeach the credibility of PW-1 or marr the veracity of her statement.
14.1 In Namdeo vs State of Maharashtra, Crl Appeal No.914/2006 decided on 13.03.2007, the Hon'ble Supreme Court of India relied upon its earlier judgment in Vadivelu Thevar vs State of Madras 1957 SER 981 wherein it was observed by the Hon'ble Court that:
"On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established :
1. As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
2. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule prudence that corroboration should be insisted upon, for example in case of a child witness or an accomplice or a witness of analogue character.
3. Whether corroboration of the testimony of a single witness is or is not necessary must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depend upon the judicial discretion of the judge before whom the case comes."
Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
14.2 The Hon'ble Supreme Court further observed that the testimony 2023.02.28 17:36:56 +0530 FIR No. 702/2015 State Vs. Bunty Singh page 11 of 16 of a solitary witness can be made the basis of conviction. The credibility of the witness is required to be decided with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as fact wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.
14.3 In case titled as Shadab @ Shamshad vs State of Govt. of NCT of Delhi, Criminal Appeal 1377/2012 decided on 11.03.2014 it was held by the Hon'ble High Court of Delhi, "There is no hard and fast rule that the testimony of injured requires corroboration before conviction. However, the rule of prudence has to be kept in mind. If the testimony of injured is trustworthy, categorically free of bias, and if there is nothing on record to suggest that the injured has any motive to falsely implicate the accused and allow his real assailants go scot free, the conviction can be based on the sole testimony of injured."
15. In the case at hand , the testimony of the sole eye witness PW-1 has given a trustworthy and reliable account of the incident and defence has not been able to impeach his credibility in the cross examination. There is no reason to disbelieve the testimony of PW-1.
Further, as per the site plan Ex. PW 1/B, the spot of the accident is near a turn of the road and as per the evidence of the eye witness Digitally signed by PW1, the accused did not use any honk or slowed down his speed. HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.02.28 17:37:03 +0530 FIR No. 702/2015 State Vs. Bunty Singh page 12 of 16 Thus, it can be safely concluded that the accused failed to take reasonable and proper care and precaution to guard against injury and failed in fulfilling his duty of care and caution towards the public in general to drive safely on a public road. Since her testimony has remained unimpeached, the court is of the view that no further corroboration is required. Therefore, on perusal of the entire evidence on record as well from the testimonies of the witnesses, it is also clearly established that accused was driving the offending vehicle in rash and negligent manner and this proves the second ingredient for the offences u/s 279/304 A IPC.
16. The third ingredient for the offences u/s 279/304 A IPC i.e, death of the victim due to the injuries suffered by way of rash and negligent driving of the accused has been proved by way of documentary evidence Ex 9/ A ( MLC of the deceased) and Ex 10/ A( post-mortem report of the deceased) as well by oral testimony of the PW 9, Dr Virender who prepared the medical report and PW 10 Dr. Ashok Nagar who conducted the postmortem of the deceased. PW 10 has deposed that he opined on Ex 10/ A that the nature of injury as cerebral damage and shock consequent upon blunt force/surface impact to head and abdomen and that all the injuries were recent snd antemortem in nature. Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
17. The accused has stated in his examination under section 2023.02.28 17:37:09 +0530 FIR No. 702/2015 State Vs. Bunty Singh page 13 of 16 313 CrPC r/w 281 CrPC that he was driving his vehicle in moderate speed and suddenly deceased came in front of his vehicle. He further stated that no accident was caused due to his negligence and negligent was on the part of the deceased. In support of this, the accused has relied upon the statement of PW1 given in her cross examination dated 31.10.2018 and of PW 7 given in his cross examination.
17.1 PW 1 has stated in her examination in chief that her daughter asked her to take her to washroom and moved at the distance of around one hand from the shop then suddenly a jeep car came in very high speed on the road inside the Mandi which ran over her deceased daughter Neetu when they were by the side of the road. In her cross examination dated 31.10.2018, PW 1 had admitted the suggestion of the counsel for the defence that at the time of the accident, her daughter was crossing the road. Further PW 7 has stated in his cross examination that there was no turn at the spot. However , I am of opinion that these contradictions are not material because if seen in totality, the witness PW 1 has clearly established the manner of the driving of the offending vehicle by the accused which shows that accused was driving the car in rash and negligent manner and the site plan Ex PW 1/B clearly show the turn at the spot of the accident.
18. Moreover, even if we assume that the deceased was Digitally signed by HIMANSHI negligent in crossing the road, only on the basis of this contradiction, HIMANSHI TYAGI TYAGI Date:
2023.02.28 17:37:15 +0530 FIR No. 702/2015 State Vs. Bunty Singh page 14 of 16 the negligence of the deceased would be of no avail to the accused to avoid the liability for the rash and negligent act under criminal law. It is quite settled principle of law that doctrine of contributory negligence does not apply to criminal actions. Contributory negligence of the victim is no defence against a charge under section 279/ 304 A IPC. The accused will be liable even though there has been a degree of negligence on the part of the victim which would incapacitate the victim from bringing a civil action. A driver must anticipate reasonably foreseeable negligent act of road users as doctrine of contributory negligence has no application in criminal law.
19. For the reasons discussed above, I am of view that all the the ingredients to constitute an offence under section 279 or section 304A IPC have been proved and established. Despite opportunity, accused did not examine any witness in support of his statement that he was driving in moderate speed. Thus, the defence of the accused has remained a mere statement and accused has not discharged his burden to prove his innocence in this case.
20. In view of the above discussion, the court is of the view that the prosecution has discharged its burden to prove its case beyond reasonable doubt against the accused. It has been successfully Digitally proved by the prosecution that the accident was caused due to the rash signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2023.02.28 17:37:22 +0530 FIR No. 702/2015 State Vs. Bunty Singh page 15 of 16 and negligent driving by the accused and that such driving was direct and proximate cause of the death of the deceased Neetu. Hence, the accused Bunty Singh is held guilty of the offence punishable u/s 279 & 304 A Indian Penal Code . Accordingly, the accused stands CONVICTED for offence under Section 279/304 A Indian Penal Code.
21. Ordered accordingly.
22. Copy of this Judgment be given dasti to the convict free of cost.
Pronounced in open Court on 28.02.2023.
The Judgement contains 16 pages and each page has been signed by the undersigned. Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date: 2023.02.28 17:37:28 +0530 (Himanshi Tyagi) Metropolitan Magistrate-03 (East), Karkardooma Courts, Delhi FIR No. 702/2015 State Vs. Bunty Singh page 16 of 16