Delhi District Court
George Kutty vs State on 14 February, 2012
IN THE COURT OF SHRI R.K. GAUBA: DISTRICT JUDGE
& ADDITIONAL SESSIONS JUDGE I/C, SOUTH DISTRICT:
SAKET NEW DELHI
Criminal Appeal No. 140/2011
ID No.: 02406R0291432011
George Kutty
s/o Sh. Kunju Kunju
F/o Village Foni, PS Foni,
P.O. Payanaman, District Patnam
Tida (Kerala)
present address: H. No. 53,
Village Mohd. Pur, New Delhi. ... Appellant
Versus
State ... Respondent
Instituted on: 17.11.2011
Judgment reserved on: 14.02.2012
Judgment pronounced on: 14.02.2012
J U D G M E N T
1. This criminal appeal challenges the judgment dated 19.10.2011 and order dated 21.10.2011, both passed by Sh. Prashant Sharma, Metropolitan Magistrate06 (South) in criminal case No. 45/2 of 2001 registered on 11.10.2001on the basis of charge Crl. Appeal No. 140/2011 George Kutty Vs. State 1 of 15 sheet that was submitted on conclusion of investigation into FIR No. 28/2011 Police Station R. K. Puram for offences under Sections 279/304A IPC.
2. Vide the impugned judgment, the learned Magistrate found the appellant guilty and convicted him for the offences under Sections 279/304A IPC. Vide the impugned order, the learned Magistrate sentenced the appellant to simple imprisonment for two years, also observing that the said sentence shall run concurrently for both the offences for which appellant had been held guilty and convicted.
3. The appeal has been resisted by the respondentState through oral submissions, mainly relying on the Trial Court record.
4. I have heard Sh. R. C. Chopra, Advocate for appellant and Sh. R.S. Negi, Ld. Additional Public Prosecutor for State at length. During the course of arguments I have been taken through the Trial Court record.
5. It is necessary to note the brief background facts leading to this appeal.
6. On 16.01.2001 at 02.45 PM, Rahul Mehra son of Madan Singh, male 23 years was brought to casualty of Safdarjang Hospital, New Delhi by Manender Singh son of Dhan Singh (PW1) with history of injuries suffered in road traffic accident. Medico Crl. Appeal No. 140/2011 George Kutty Vs. State 2 of 15 Legal Report (MLC) came to be recorded (vide Ex. PW 3/A) by the examining medical officer. As per MLC, Rahul Mehra had been brought dead (and, therefore, hereinafter referred to as "the deceased"). Information about this was conveyed to police post SectorIV of police station R. K. Puram, (hereinafter referred to as "the police station") where it was recorded vide DD entry no. 28 at 04.25 hours.
7. The matter was entrusted to SI Vishram (the investigating officer). It was the case of the prosecution that the investigating officer ( I.O.) accompanied by Ct. Kanhiya Lal (PW3) went to Safdarjang Hospital (hereinafter referred to as "the hospital") where he collected the MLC. The I.O. was met by Maninder Singh (PW1), who gave statement (Ex. PW 1/A) on the basis of which FIR (Ex. P1) came to be recorded at 06.20 PM on 16.01.2001 respecting the occurrence that had allegedly taken place at 02.30 PM on the same day near Church red light, on Africa Aveneu Road, near Mohammad Pur Village, New Delhi (within the jurisdiction of the police station).
8. As per the FIR, PW1 had also identified the appellant, who was present in the hospital at the time of his statement (Ex. PW 1/A), as the driver of the offending vehicle, the bus bearing registration no. DL 1P 7026 (hereinafter referred to as "the Crl. Appeal No. 140/2011 George Kutty Vs. State 3 of 15 bus") which had been involved in the collision against motor cycle bearing registration No. DL3S U 5037 (hereinafter referred to as "the motor cycle").
9. It was stated in the prosecution case that the I.O. had prepared a site plan (Ex. A1) at the instance of first informant PW1 and had also got the scene photographed (collectively Ex. A4). The bus was seized by the I.O. vide seizure memo (Ex. PW1/D) in the presence of PW1 and PW3. The documents relating to the bus were also seized similarly by the I.O. vide memo Ex. PW 3/A. The driving licence of the appellant was seized again in the presence of PW1 and PW3 by the I.O. vide a separate seizure memo (Ex. PW 1/C). The Motor cycle was similarly seized by the I.O. in the presence of PW1 and PW3 vide separate seizure memo (Ex. PW 1/B).
10.The appellant was arrested vide memo (Ex. PW 1/E) by the I.O. on 16.01.2001 itself in the presence of PW1 and PW3 after personal search vide separate memo (Ex. PW 1/F) and thereafter enlarged on bail.
11. The motor cycle and the bus were, thereafter, subjected to mechanical inspection through ASI Technical Devender Kumar who gave his reports (Ex. A2 and A3 respectively).
12.During the investigation, the dead body was sent for post Crl. Appeal No. 140/2011 George Kutty Vs. State 4 of 15 mortem examination. The autopsy is stated to have been conducted after it had been identified, interalia, by Chandan Singh (PW2), brotherinlaw of the deceased (vide Ex. PW 2/A). The postmortem report (Ex. P2) was prepared by autopsy doctor.
13.On the basis of evidence thus collected, charge sheet was laid seeking trial of the appellant for offences under Section 279/304A IPC. The trial commenced with notice under Section 251 Cr.P.C. being issued and served on 04.04.2002 to which the appellant pleaded not guilty.
14. In the trial, the prosecution examined, in all, 4 witnesses, which included Maninder Singh, (PW1) the eye witness; Chandan Singh, (PW2), brotherinlaw of the deceased ; Ct. Kanhiya Lal( PW3), who accompanied the IO to spot, and Dr. S. K. Chandan, (PW4), who proved the MLC.
15. On 11.02.2011, the appellant made a statement, interalia, voluntarily admitting copy of FIR Ex.P1 and postmortem report Ex. P2 under Section 294 Cr.P.C. On 21.09.2011, he made further statement, admitting under Section 294 Cr.P.C., the site plan (Ex. A1), mechanical inspection report of the motor cycle (Ex. A2), mechanical inspection report of the bus (Ex. A3) and photograph of the motor cycle at the accident spot Crl. Appeal No. 140/2011 George Kutty Vs. State 5 of 15 (Ex. A4).
16.The statement of the appellant was recorded under Section 313 Cr.P.C. in which incriminating evidence was put to him. When confronted with evidence relating to MLC, the communication of information to police post vide DD no.28A and the police proceedings resulting in registration of FIR Ex.P1 and also seizure of the motor cycle and the bus besides seizure of documents relating to the bus, the appellant pleaded ignorance. He denied evidence about the accident having occurred due to rash or negligent driving of the bus by him. He admitted he had been arrested in the case but showed ignorance as to the mechanical inspection of the two vehicles or the postmortem examination having been conducted. He claimed that it was a false case set up to claim compensation from the insurance company.
17. The appellant sought opportunity to lead evidence in defence which was granted. He examined Sh. P. A. Varghese (DW1), an employee of St. Marry School to which the bus belonged.
18.The learned Magistrate heard arguments and, thereafter, passed the judgment and order on sentence which has been impugned before this court.
19.The basic argument of the counsel for the appellant is that the Crl. Appeal No. 140/2011 George Kutty Vs. State 6 of 15 bus in question driven by the appellant was not even involved in the accident. It is his case that the appellant was driving the bus of the school and had only come to the spot on noticing the accident having taken place and since he had stopped there, he was falsely implicated. It is his submission that PW1 is a planted witness, on whose evidence reliance cannot be placed. To press this line of argument, he sought to point out what he termed as discrepancies in the evidence of PW1.
20.The submission of the counsel for the appellant is that PW1 made a material error in mentioning the registration particulars of the motor cycle in the initial part of his testimony where he mentioned the number as DL3S 3057. To my mind, this is of no consequence as the witness had immediately thereafter corrected himself to state the correct last four digits "5037" appearing in the registration number of the motor cycle, the only omission being in he skipping the letter "U" which also followed letter "S". In a case where the vehicle did not belong to the witness and where evidence about motor cycle in question being actually involved in accident is not in dispute, such small omission by the witness is of no consequence.
21. The counsel then pointed out that, in the witness box, PW1 has mentioned that the bus was reversed by the appellant only after Crl. Appeal No. 140/2011 George Kutty Vs. State 7 of 15 he had made 56 requests. He submitted that this was not mentioned in the FIR based on the statement Ex. PW 1/A. To my mind, this is a triviality and cannot be lead to veracity of PW1 being doubted on this score. The fact remains that even in the FIR, it was made clear that the bus was reversed by the appellant so that the deceased could be taken out from under its carriage. The fact that this was done by the appellant only upon persistence, was too insignificant a detail, the omission of which in the FIR does not disturb the basic sequence of events.
22.Further argument of the counsel for the appellant is that PW1 claimed in his statement that he had also suffered injuries. It is submitted that since there is no MLC recorded, this was a major improvement and, therefore, the word of PW1 is not credible. I am afraid that it can be ignored that the witness has also explained that the injury suffered by him was too minor and he only required first aid. The sequence of events, as narrated by PW1, shows that he was riding on the pillion of the motor cycle driven by the deceased, both being friends for last several years. The deceased had requested PW1 to visit the house of a friend for repair of his computer, a business in which PW1 had been engaged. The death appears to have occurred right at the spot. In these circumstances, the focus of PW1 would naturally had Crl. Appeal No. 140/2011 George Kutty Vs. State 8 of 15 been not on attending to his insignificant injuries but taking care of the necessary arrangement including informing the family of the deceased, in which regard he has given necessary details. The fact that no MLC was recorded in this state of affairs respecting PW1, therefore, can also be of no help to the appellant.
23.It is next argued that in the course of his statement, PW1 has stated that the appellant had run away from the spot with his bus. The argument is that if that were the fact, the name of the appellant could not have been ascertained or he could not have been identified in the hospital as is shown in the FIR based on statement Ex. PW 1/A. While it does appear PW1 spoke about appellant having run away from the spot with the bus, that appears to be only his immediate reaction after the occurrence. Even the police proceedings do show that the bus had not remained at the scene of accident after the occurrence. This is why in the photographs, collectively Ex. A4, admitted under Section 294 Cr.P.C. by the appellant, only the motor cycle can be seen. But then, the evidence about the presence of the appellant in the hospital at the time of recording of the statement Ex. PW 1/A leading to the registration of FIR (Ex. P1) remains credible as its veracity has not been shaken during Crl. Appeal No. 140/2011 George Kutty Vs. State 9 of 15 the crossexamination. It cannot be ignored that even in the crossexamination, the only material suggestion was that the accident had occurred due to rash or negligent driving of the motor cycle by the deceased. There was no suggestion given that the collision did not involve the bus of the appellant. In other words, the collision was admitted and what was disputed was only the question as to who was at fault.
24.It is then argued by the appellant that there were no skid marks on the road at the scene of occurrence as is admitted by PW1. The evidence also shows that the bus had stopped immediately after the collision. This is why when the bus had come to hault, the deceased had come under the carriage of the bus which had to be reversed to take him out from under it. The counsel further pointed out that PW1 is on record stating that the speed of the bus was 2530 kilometers per hour. His argument is that this could not be termed as rash speed.
25. It would be pertinent to bear in mind what is meant by 'rash or negligent act'. The Apex Court in Prabhakaran v.
State of Kerala [AIR 2007 SC 2376], observed thus:
"7.... "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk Crl. Appeal No. 140/2011 George Kutty Vs. State 10 of 15 of doing such an act with recklessness or indifference as to the consequences. 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 circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.
8. The distinction has been very aptly pointed out by Holloway J. in these words:
''Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the 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. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but In circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection." (See In re: Nidamorti Nagabhusanam 7 Mad. H.C.R. 119)"
26.The above law has also been followed in State (Delhi Adminstration) v.
Desh Raj [2007 CrLJ 4595 (Del)].
Crl. Appeal No. 140/2011 George Kutty Vs. State 11 of 15
27. The evidence of PW1 has to be seen in the light of the site plan Ex. A1 that both vehicles had approached the Tpoint in question from the same direction. Both were taking a right turn on Church Road. It is clear from the sequence narrated in the evidence that the bus was on the left side of the motor cycle at that opportune point of time. In that process, the bus hit against the motor cycle, the rider of which came under its wheels in the follow up. Use of speed even to the extent of 2530 kilometers per hour at such a point of time justifies the conclusion of negligent driving. The two vehicles were expected to take a circular motion in the process of turning right. It was obligation on the part of bigger vehicle to keep a safe distance from the other vehicle (a two wheeler) moving alongside in the same direction. The very fact they came in contact with each other shows that the driver of the bus had thrown all caution to winds. Negligence on the part of the appellant is writ large on the record of the case.
28.The evidence of DW1 is of no consequence as a certificate from his employer about the appellant having not been involved in any other accident cannot be a reason for him to be absolved of responsibility in this fatal accident case.
29.The impugned judgment holding the appellant guilty and Crl. Appeal No. 140/2011 George Kutty Vs. State 12 of 15 convicting him for offence under Section 279/304A IPC cannot be faulted. The same is upheld and the appeal to that extent is dismissed.
30.The counsel for the appellant has next argued pleading for mercy in the matter of sentence.
31. In Dalbir Singh v.
State of Haryana (2000(5) SCC 82) the Apex Court while convicting the appellant in that case under Section 304A IPC held as under:
"Then automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain deterrent element in sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and frolic.
xxxxx While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the Crl. Appeal No. 140/2011 George Kutty Vs. State 13 of 15 automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles."
32. Keeping the facts of the case at hand and the observations of the Apex Court in Dalbir Singh's (supra) that endorsed a deterrent approach in case of errant drivers, where a precious life came to an untimely end due to the negligence on the part of the appellant, there is no scope for mercy. The appellant was driver of the bus in which he would ferry school children. In this view, even better discipline on the road was expected from Crl. Appeal No. 140/2011 George Kutty Vs. State 14 of 15 him. If a lenient view were to be taken in such a case, it would send wrong signals to the society at large.
33.The learned Magistrate has awarded sentence of SI for two years for both the offences. However, it is found that the order on sentence for offence under Section 279 IPC suffers from error. Such offence carries the maximum punishment of imprisonment for six months. The said sentence for offence under Section 279 IPC is, thus, reduced to six months, while punishment for offence under Section 304A IPC is maintained. Both the sentences, however, shall run concurrently.
34.The appeal stands disposed of accordingly. Bail bonds of the appellant are discharged. He is taken into custody and sent to jail under appropriate warrant to serve the sentence.
35.A copy of this judgment be given free of costs of the appellant.
36. The trial court record along with copy of the judgment be sent back.
37. File of the appeal be consigned to record room. Announced in open Court today on this 14th day of February, 2012 (R.K. GAUBA) District Judge & Additional Sessions Judge, I/C, South District Saket, New Delhi Crl. Appeal No. 140/2011 George Kutty Vs. State 15 of 15