Delhi District Court
State vs Bharat Halder on 8 October, 2015
IN THE COURT OF MS RUCHIKA SINGLA
METROPOLITAN MAGISTRATE - 04, ROOM NO.212
DWARKA, DELHI
State versus Bharat Halder
FIR No. 211/13
PS: Dwarka South
U/s- 279/304A/337 IPC
1. Serial No. of the case : 02405R0342842013
2. Date of commission of offence : 03.07.2013
3. Name of the complainant : Sh. Mukesh Kumar, s/o Sh. Ram Prashad
Sain.
4. Name of the accused, and their : Bharat Halder
address s/o Sh. Shyam Halder, r/o H.No. C-1/15, C-
Block, New Ashok Nagar, New Delhi.
5. Date of Reserving Judgment : 11.09.2015
6. Date when judgment was : 08.10.2015
pronounced
7. Offence Complained of : Section 279/304A/337 IPC
8. Plea of accused : Pleaded not guilty.
9. Final Order : Conviction
10. Date of Order : 08.10.2015
JUDGMENT
Brief Statement of the reasons for the decision of the case
1. Succinctly, the facts of the present case are that the accused Bharat Halder has been brought before this court for trial on the allegation that he had committed the offences under Section 279/304A/337, Indian Penal Code 1860 (hereinafter referred to as IPC) as on 03.07.2013 at about 10.00 AM on the road coming towards Dwarka, Opposite Petrol Pump, Sector-01, Dwarka, he was driving a Safari Car bearing no. DL-9CQ-9764 (hereinafter referred to as offending vehicle) in a rash and negligent manner and while so driving the offending vehicle, he hit one Esteem Car bearing no. UP-14W-2568 due to which the complainant Mukesh Kumar State v. Bharat Halder FIR no. 211/13 PS Dwarka South Page 1 of 7 sustained simple injuries and Sh. Ashish Bhagat expired. An FIR was lodged at the behest of Sh. Mukesh Kumar.
2. The investigation was completed and charge sheet was filed against the accused under Section 279/304A/337 IPC on 12.12.2013. Cognizance was taken and provisions of Section 207 CrPC were complied with. Thereafter, a charge under Section 279/304A/337 IPC was framed against the accused on 15.02.2014 to which he pleaded not guilty and claimed trial.
3. Thereafter, the matter was listed for Prosecution Evidence. The prosecution examined 11 witnesses. PW1 Sh. Mukesh Kumar is the complainant. PW2 Sh. Harbans Lal Bhagat is the father of the deceased Ashish Bhagat who identified his dead body. PW3 HC Lalu Ram is the DO who registered the present FIR. PW4 Sh. Diwakar Sharma is the superdar. PW5 Sh. Manish Bhagat is the brother of the deceased Ashish Bhagat who also identified the dead body of the deceased. PW6 W/Ct Anita is the DD writer who proved the DD entries regarding the admission and death of the injured in the hospital. PW7 Sh. Puran Chand is the Mechanical Inspector, who conducted the mechanical inspection of the vehicles. PW8 Sh. Amitava Ghosh is the eye witness and another injured in the present case. PW9 SI Lakh Ram is the second IO. PW10 Ct. Randhir was with the IO during the investigation of the present case. PW11 ASI Rajinder Singh is the first IO in the present matter. The accused, vide his separate statement under Section 294, CrPC, did not dispute the genuineness and veracity of MLC no. 429/13, 122/13, 16525/13, X-ray report dated 03.07.2013 and the postmortem report no. 892/13. Same are Ex. C1 to Ex. C5 respectively. Thereafter, the PE was closed vide Order dated 25.08.2015. Statement of the accused was recorded under Section 313, CrPC on 01.09.2015 whereby the accused pleaded false implication. The accused chose not to lead any defence evidence. Thereafter, final arguments were advanced by the Ld. APP and the Ld. Counsel for the accused and the matter was reserved for orders.
4. The accused has been charged for the offences u/s 279/337/304A IPC. I shall deal with each of these offences one by one. Firstly, the court shall examine whether the offence u/s 279 IPC is made out against the accused or not. The said offence provides for punishment for rash and negligent driving. To make out the said offence, the prosecution must prove the following:-
State v. Bharat Halder FIR no. 211/13 PS Dwarka South Page 2 of 7
a) that the accused was driving a vehicle in a rash and negligent manner;
b) that such vehicle was being driven on a public way; and
c) that the driving was in such a manner so as to endanger human life or likely to cause hurt or injury to any other person.
5. Ld. APP has argued that the said offence is made out against the accused in view of the testimony of PW1 Sh. Mukesh Kumar who is one of the eye-witness as well as an injured in the present case. Ld. APP submitted that PW1 Sh. Mukesh Kumar stated on Oath that on the day of incident i.e. 03.07.2013, he along with the deceased Sh. Ashish Bhagat was going to Dwarka in their esteem car bearing no. UP-14W-2568. Near Palam Fly Over, the car stopped working properly. Thereafter, PW1 Sh. Mukesh Kumar started pushing the car from behind and the deceased was pushing the car from the right side while controlling the steering wheel. Thereafter, he stated that suddenly one Safari car i.e. the offending vehicle came from behind and hit their car due to which the silencer of their car got stuck on the tyre of the offending vehicle. The tyre of the offending vehicle got punctured and then the same hit the deceased. Due to the impact of the accident, the esteem car turned towards the right side of the road on to the divider. Ld. APP submits that PW1 Sh. Mukesh Kumar has given a clear and detailed description of the accident. Admittedly, he has not deposed specifically that the offending vehicle was being driven rashly and negligently but the manner in which the accident had occurred clearly shows that the vehicle was being driven rashly and negligently. It is submitted by the ld. APP that the offending vehicle was being driven at such a high speed that the esteem car turned right and rolled over the divider. Further, the photographs of the cars are on record which are proved as Ex. P1 to Ex. P39. The extent of damage as seen in these vehicles tells details about the gravity of the incident. Further, PW1 Sh. Mukesh Kumar identified the accused to be the driver of the offending vehicle in the court. The accused has also not disputed the occurrence of the accident in his statement u/s 313 CrPC. It is a matter of record that the accident occurred on public way. Hence, ld. APP submits that the offence u/s 279 IPC is clearly made out against the accused.
6. Ld. Counsel for the accused, on the other hand, has submitted that though the incident did occur, there was no rash and negligent act on the part of the accused. It is submitted by the ld. Counsel that no reason has been given by PW1 Sh. Mukesh Kumar regarding the fault in vehicle. He has not explained as to why he was pushing the vehicle. PW1 stated in his cross examination that the front left tyre of the car was damaged. Hence, it is stated that in such scenario, the State v. Bharat Halder FIR no. 211/13 PS Dwarka South Page 3 of 7 vehicle could be moved only with the help of a crane, it could not be pushed. Hence, the version of PW1 Sh. Mukesh Kumar is incorrect. In reality, the accused was driving the vehicle at a normal speed. As the road was uneven, his tyre got burst and he lost control over the car. Thus, the car hit the esteem car at its right rear end and the accident occurred. Further, he submits that as per the admitted version, after the hit, the esteem turned towards right, towards the divider and the offending vehicle then turned the left. Hence, it was not possible for the offending vehicle to hit the deceased. Ld. Counsel then submitted that PW1 Sh. Mukesh Kumar did not depose regarding the rash and negligent act of the accused. PW1 Sh. Mukesh Kumar also stated in his cross examination that he could not tell the speed of the offending vehicle at the time of the accident. He stated in his testimony that due to the silencer of the esteem car, the tyre of the offending vehicle got burst. This is an improvement from the earlier statement of the witness. No where before has he stated this fact to the police. Hence, he submits that the testimony of PW1 Sh. Mukesh Kumar does not help the prosecution and cannot relied upon for the conviction of the accused.
7. Further, ld. Counsel submits that there is allegedly one other eye-witness to the said incident namely PW8 Sh. Amitava Ghosh, but he has turned hostile and has not supported the prosecution story. He has stated that there was no negligence on anybody's part. Hence, it is submitted by the ld. Counsel that as the rash and negligent driving of the accused could not be proved, the said offence is not made out.
8. I have perused the entire record. There are certain facts in the present case which are admitted on the basis of the statement u/s 313 CrPC and the testimonies of the witnesses. Firstly, it is admitted that the car of the complainant had broken down and was being pushed by PW1 Sh. Mukesh Kumar and the deceased. Secondly, it is admitted that they were pushing the car on the Palam Flyover. Thirdly, it is admitted that the present accused was driving the offending vehicle and PW8 Sh. Amitava Ghosh was sitting in the offending vehicle at that time. Fourthly, it is admitted that the offending vehicle hit the esteem car on the rear right end due to which the esteem car turned right, over to and upon the divider. Fifthly, it is admitted that due to this accident, the deceased expired and PW1 Sh. Mukesh Kumar and PW8 Sh. Amitava Ghosh received injuries. Now the only thing which remains to be proved by the prosecution, to bring State v. Bharat Halder FIR no. 211/13 PS Dwarka South Page 4 of 7 home the charge u/s 279 IPC is that the accused was driving the vehicle rashly and negligently.
9. In the opinion of the court, from the facts of the case and the state of things, this is also proved. Admittedly, PW1 Sh. Mukesh Kumar has not deposed specifically regarding the rashness and the negligence which is understandable as he was looking ahead while pushing the esteem car and the offending vehicle came from behind. In this scenario, the court has to resort to the circumstantial evidence which is before it. As pointed out by the Ld. APP, the photographs of the vehicle which are proved as Ex. P1 to Ex. P39 show that the impact of the accident was so great that so much damages were caused to both the vehicles. The esteem car is completely demolished from the back right side and the offending vehicle has also suffered great damage on the front left side. One other thing which supports the same is the mechanical inspection reports of the vehicles which have been proved as Ex. PW7/A and Ex. PW7/B. As per these reports, the esteem car had suffered damages in the back side at the dicky, the roof at the back side, rear mirror, further damages at both the rear sides, petrol tank, silencer, the rear right side chimta, shocker light, indicator, bumper and number plate. The offending vehicle suffered damages at the front left side of the engine, front bumper, net, number plate, left side headlight indicator, brake light, tuby topper. PW1 Sh. Mukesh Kumar has stated in his cross examination that the esteem car was at the maximum one feet away from the left end of the fly over. PW11 ASI Rajinder Singh who is the IO stated in his cross examination that the width of the road may have been 20-25 feet. He further stated that it was a three lane road. At the cost of repetition, it may be mentioned that it is an admitted fact that the offending vehicle hit the esteem car at its rear right end and due to this hit, the esteem car turned towards right and climbed over the divider. The esteem car was shut off at that time. It was being pushed by PW1 Sh. Mukesh Kumar and the deceased. Ld. Counsel had raised a point that the reason for the breaking down of the car has not been explained by the PW1 Sh. Mukesh Kumar and that he had deposed falsely regarding this fact. However, it has been admitted by the accused in his statement u/s 313 CrPC that PW1 and the deceased were pushing the vehicle on the fly over. Hence, this objection is irrelevant.
10. Now, coming back to the manner in which the accident occurred, it is not very hard to gather that the offending vehicle must have been driven at a very high speed so as to cause a car (which was moving at the lowest speed possible, being pushed by two persons) to travel 20-25 State v. Bharat Halder FIR no. 211/13 PS Dwarka South Page 5 of 7 feet and then to climb over the divider. This could happen only when the offending vehicle was going at an uncontrollable speed. This fact is corroborated by the testimony of PW8 Amitava Ghosh though it is alleged that he has turned hostile at the point of negligence. However, the court is not of this opinion. PW8 Amitava Ghosh stated in his examination in chief that in his knowledge, it was not negligence on any body's part. But he admitted in his cross examination that he had given an application to the In-charge Police Post which was proved as Ex. PW8/A. In this application, he had written that he was regularly cautioning the driver to check his speed. This clearly indicates that the accused was driving the vehicle at a high speed. He further admits in his cross examination that suddenly his driver dashed in the said car in the front. From these facts, the rash and negligent driving of the accused is proved. Hence, this offence is made out against the accused.
11. The accused has then been charged for the offence u/s 304A IPC which provides for punishment for causing death by negligence. From the above discussion, it has already been proved that the accused is guilty of a rash and negligent act. Now, the prosecution has to prove that due to this act, death of one person was caused which did not amount to culpable homicide. In the present matter, it is proved from the statements of the witnesses and the statement of the accused u/s 313 CrPC that the deceased had got injured due to the said accident. The accused had merely taken the plea that he was not at fault, which has already been dealt with earlier. The postmortem report of the deceased was not disputed by the accused u/s 294 CrPC. Same is hence proved as Ex. C5. As per the report, the cause of death is due to Haemorrhagic Shock subsequent to injury to lungs and spleen followed by road traffic accident. Further, it is stated that all injuries are ante-mortem in nature and same in duration. No evidence has been led by the accused to show that the death was from any other reason. In view of the same, the court is of the opinion that the prosecution has proved beyond reasonable doubts that the death of Sh. Ashish Bhagat was caused by the said accident. Hence, this offence is made out against the accused.
12. Lastly, the accused has been charged for the offence u/s 337 IPC which provides for punishment for causing hurt by rash or negligent act so as to endanger human life. From the above discussion, it has already been proved that the accused is guilty of a rash and negligent act.
State v. Bharat Halder FIR no. 211/13 PS Dwarka South Page 6 of 7 Now, the prosecution has to prove that due to this act, hurt was caused to PW Mukesh Kumar. In the present matter, it is proved from the statements of the witnesses and the statement of the accused u/s 313 CrPC that he had got injured due to the said accident. The accused had merely taken the plea that he was not at fault, which has already been dealt with earlier. The MLC of the injured was not disputed by the accused u/s 294 CrPC. Same is hence proved as Ex. C3. In view of the same, the court is of the opinion that the prosecution has proved beyond reasonable doubts that Sh. Mukesh Kumar was hurt in the said accident. Hence, in the opinion of the court, the present offence is also made out. Hence, in view of the above discussion, the accused is convicted for the offences under Section 279/337/304A IPC.
Let he be heard on the quantum of sentence.
ANNOUNCED IN THE OPEN COURT ON 08.10.2015 (RUCHIKA SINGLA) METROPOLITAN MAGISTRATE-04 DWARKA COURTS, DELHI State v. Bharat Halder FIR no. 211/13 PS Dwarka South Page 7 of 7