Delhi District Court
State vs . Tilak Chand @ Tillu on 2 November, 2015
IN THE COURT OF SH. NAVJEET BUDHIRAJA, MM04, SOUTH DISTRICT, NEW
DELHI
STATE VS. Tilak Chand @ Tillu
FIR NO: 696/01
P. S Sangam Vihar
U/s 279/337/304 A IPC
Unique ID No. 02406R0145352002
JUDGMENT
Sl. No. of the case : 210/2 (30.04.2002)
Date of its institution : 30.04.2002
Name of the complainant : Sh. Gopal S/o Sh. Vishal Singh,
R/o Village Amba, PS Anup Shahar,
District Buland Shahar, UP.
Date of Commission of offence : 10.12.2001
Name of the accused : Tilak Chand @ Tillu S/o Sh. Khokha
Mandal, R/o New Sanjay Camp, Part
II, Phase - I, Jhuggi Okhla, New
Delhi.
Offence complained of : 279/304 A IPC
Plea of accused : Not Guilty
Case reserved for orders : 16.10.2015
Final Order : Convicted U/s 279/337/304 A IPC
Date of orders : 02.11.2015.
State Vs. Tilak Chand @ Tillu FIR No.696/01 1/11
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the prosecution of the aforesaid accused pursuant to a charge sheet filed by the Police Station Sangam Vihar under Section 279/337/304 A Indian Penal Code, 1860 (for short "IPC") subsequent to the investigation carried out by them in FIR no.696/01.
2. The case of the prosecution is undraped as that on 10.12.2001 W/SI Sarita Rathi received DD No. 19 who along with Ct. Gurmeet Singh reached the spot i.e. M B Road Lal Kuan ICD Mod where truck trolley HR 35 2540 (here in after referred to as "accidental truck") and truck bearing no. HR 55 0016 (here in after referred to as "offending truck") was found stationed, (half on the road and half on the divider). One person was found present who was caught by public persons and who revealed his name as Tillu Mandal. The statement of one helper Gopal was recorded which formed the foundation for registration of the present case. Two persons namely Ghan Shyam and Ram Preet were found in injured condition and accused along with those two persons were sent to AIIMS Hospital through Ct. Gurmeet. Investigation of the case was then carried out by IO wherein she recorded the statement of some material witnesses namely Ct. Gurmeet, Sh. Om Prakash, Sh. Ganesh, Sh. Gopal, Sh. Shadi Lal and also collected certain documentary evidence.
3. It was based on the above investigation, the prosecution proceeded against the accused. Accused was formally served with notice under section 279/337/304 A IPC to which he pleaded not guilty and claimed to be tried.
4. To substantiate the charges, the prosecution examined as many as six witnesses. The prosecution exhibited number of documents which included FIR as Ex.PW1/A upon endorsement on rukka as Ex.PW1/B, DD No. 19 as Ex.PW2/A, DD No. 20 as Ex.PW2/B, statement of witness Gopal as Ex.PW2/C, seizure of offending vehicle as Ex.PW2/D, seizure of truck as Ex.PW2/E, seizure of DL of the accused as Ex.PW2/F, State Vs. Tilak Chand @ Tillu FIR No.696/01 2/11 arrest of accused as Ex.PW2/G, site plan as Ex.PW2/H, mechanical inspection as Ex.PW3/A etc.
5. PW1 HC Ram Kumar proved the registration of FIR as Ex.PW1/A upon endorsement on rukka as Ex.PW1/B. He was not cross examined on behalf of the accused despite according opportunity. Witness ASI Sarita was examined as PW2 who is the Investigating Officer and who proved DD No. 19 as Ex.PW2/A, DD No. 20 as Ex.PW2/B, statement of witness Gopal as Ex.PW2/C, rukka as Ex.PW1/A, seizure of offending vehicle as Ex.PW2/D, seizure of the truck trolley bearing no.HR382540 as Ex.PW2/E, seizure of D/L of the accused as Ex.PW2/F, arrest memo of accused as Ex.PW2/G and site plan as Ex.PW2/H. She was cross examined on behalf of the accused. Sh. Shadi Lal proved the mechanical inspection of truck trolla bearing no. HR382540 as Ex.PW3/A. He was not cross examined on behalf of the accused despite according opportunity. Witness Sh. Ram Preet was examined as PW4 who deposed about the manner and circumstances in which the alleged incident took place. He was not cross examined on behalf of the accused despite accordingly opportunity. Witness Sh. Gopal was examined as PW5 who also deposed about the manner and circumstances in which the alleged incident took place and he also proved his statement as Ex.PW2/C, seizure of both the trucks as Ex.PW2/D & Ex.PW2/E, photographs of the vehicles as Ex.PW6/A. He was cross examined on behalf of the accused. Lastly witness HC Gurmeet Singh was examined as PW6 who deposed about the aspect of investigation and he also proved seizure of both the vehicles as Ex.PW2/D & Ex.PW2/E and arrest of the accused as Ex.PW2/G. He was cross examined on behalf of the accused.
6. This is the overall prosecution's evidence in this case. Prosecution evidence stood State Vs. Tilak Chand @ Tillu FIR No.696/01 3/11 closed vide order dated 09.07.2014.
7. The statement of the accused under Section 313 of the Criminal Procedure Code, 1973 (for short "the Code") was recorded wherein incriminating circumstances were put to him. He disclaimed all the allegations against him. He further submitted that he has been falsely implicated in the present case. He was wrongly arrested in the present FIR. He, however, chose to lead defence evidence where he examined himself as DW1 and Sh. Krishan Kumar as DW2. Both the witnesses were cross examined by Ld. APP for state. Defence evidence stood closed vide order dated 14.08.2015. Consequently, the matter was posted for final arguments.
8. It is argued by Ld. APP of the state that the prosecution has been successful in nailing the case against the accused and the testimony of witness Gopal is clinching piece of evidence which can certainly be relied upon for handing out the conviction to the accused for offence U/s 279/337/304A IPC in as much as he has vividly described the accident in question and carved out the manner in which the offending vehicle was being rashly driven by the accused.
9. On the contrary Ld. Counsel for the accused has claimed his innocence by arguing that fault can not be imputed upon the accused as while driving the offending vehicle, a cow suddenly appeared in front and to eschew hitting the cow, accused swerved his vehicle which got banged into another vehicle. Accused did not anticipate that the other vehicle was standing at the spot. In order to effectively build the defence of the accused, Ld. Counsel has also filed written arguments on behalf of the accused pointing out various infirmities in the case of the prosecution.
10. I have bestowed my thoughtful considerations to the rival submissions made before me. Accused is indicted for offences u/s 279/337/304 A IPC. All the sections speak of State Vs. Tilak Chand @ Tillu FIR No.696/01 4/11 rash and negligent act. Section 279 IPC punishes the offence of driving a vehicle in a manner "so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person"; and section 304 A IPC provides punishment for causing death of any person by doing any rash or negligent act not amounting to culpable homicide. Proof of rashness and negligence is required for section 279 IPC as also u/s 304 A IPC. To constitute either of the offences u/s 279 IPC or 304 A IPC, proof of criminal rashness or criminal negligence is essential. In order to establish criminal liability the facts must be such that the negligence of the accused went beyond a mere matter of compensation and showed such a disregard for life and safety of others as to amount to a crime.
11. In order to bring home the guilt of the accused, prosecution has to prove three aspects, firstly that the accused was driving the offending truck bearing no. HR550016 on 10.12.2001 at about 4.00 pm at M. B. Road near ICD Mor, Lal Kuan, Middle patri, secondly, that the said offending truck was being driven by the accused in rash or negligent manner causing the accident in question and thirdly, in the said road accident injured Rampreet sustained simple injuries and victim Ghanshyam succumbed to his injuries.
12. In so far as the third aspect of the case is concerned that injured Rampreet sustained simple injuries and the accidental death of deceased Ghanshyam, there has been no remonstrance on the part of the accused. Accused in his statement U/s 294 of the Code has also not reputed the genuineness of the MLC of injured Rampreet which is Ex.PA1 and postmortem report of the deceased which is Ex. PB. The same reveals that deceased Ghanshyam was brought in a hospital with alleged history of road traffic accident on 10.12.2001 at about 4.00 pm where doctor declared him brought dead. The State Vs. Tilak Chand @ Tillu FIR No.696/01 5/11 cause of his death has been opined to be haemorrhagic shock caused by injuries by blunt force which can be possible in the road traffic accident. The MLC of injured Ram Preet also reveals that he was met with an traffic accident at about 04:30 pm, he is shown to have suffered laceration wound of about 5 cm in his forehead and about 5 cm above the eye brows, laceration wound of about 6 cm with active bleeding. The nature of his injury have been opined to be simple and blunt. Again it is noted that the MLC of this injured as well as postmortem of the deceased Ghan Shyam have not been oppugned by the accused and the same Ex. PA1 and Ex. PB respectively.
13. In order to cement its case against the accused, the prosecution has proved his presence as well as that of the offending vehicle at the spot by the evidence of ASI Sarita (PW2), Gopal (PW5) and HC Gurmeet (PW6). It has been deposed by ASI Sarita (PW2) that on 10.12.2001upon receipt of DD No. 19 Ex. PW2/A regarding the accident she alongwith Ct. Gurmeet Singh reached the spot where two trucks were found in accidental condition, the offending truck bearing no. HR 55 0016 was found in middle patri of the road and another truck trolley bearing registration no. HR 38 2540 was also found on the spot. The driver of the offending truck was also present at the spot who was apprehended and roughed up by the public persons. After the necessary formalities the offending vehicle was seized vide seizure memo Ex. PW2/D, the accidental truck was seized vide seizure memo Ex. PW2/E and accused was also arrested vide seizure memo Ex.PW2/G. These circumstances have also been corroborated by PW6 HC Gurmeet Singh. PW5 witness Gopal has also deposed about the involvement of the offending truck in the accident in question being the eye witness to the incident.
State Vs. Tilak Chand @ Tillu FIR No.696/01 6/11
14. Otherwise also accused Tilok Chand has also not expostulated his presence at the spot along with the offending truck during his statement U/s 315 of the Code. He has, however, taken a stand that the accident was caused not due to his fault but the same was happened when he endeavored to save a cow. This defence of the accused would be deliberated upon in the following part of the judgment. In view of this discussion, it is pellucid that aforesaid first aspect has been successfully established by the prosecution.
15. Moving further, in a fairly recent Judgment of Apex court, the concept of driving has been extensively explained. The Judgment is titled as Ravi Kapur v. State of Rajasthan (2012) 9 SCC 284 and para 10 and 11 is reproduced as below:
"10. In order to examine the merit or otherwise of contentions (b) and (c) raised on behalf of the appellant, it is necessary for the Court to first and foremost examine (a) what is rash and negligent driving; and (b) whether it can be gathered from the attendant circumstances. Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle State Vs. Tilak Chand @ Tillu FIR No.696/01 7/11 is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted".
"11. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence".
16. To establish the aspect of rash or negligent driving on the part of the accused prosecution has mainly relied upon the testimony of PW5 Gopal and to some extent that of PW4 Ram Preet (other injured in this case). The germane extract of the testimony of PW5 Gopal is as follows:
"..............I was also standing besides the truck and was taking tea. At about 02:30 - 3:00 pm, a dumper bearing no. HR 55 0055 came from Mehrauli side in a high speed and hit against our stationed truck in its front side. At that time my uncle (Chacha) Ghanshyam was helping the mechanic in lifting the radiator while standing in front of our truck. In collusion, my uncle suffered injuries on the lower part of his body as he got crushed between both the trucks. Mechanic also suffered injuries in the collusion. My uncel Ghanshyam Singh expired at the spot as the offending vehicle truck ran over State Vs. Tilak Chand @ Tillu FIR No.696/01 8/11 my uncle when he fell down .............".
17. During his cross examination by the Ld. APP for the state, PW5 reiterated that the offending truck was being driven in a fast speed and in a negligent manner which hit their truck from front side by the collusion the stationed truck went 1213 paces back. It is ostensible from his testimony that deceased Ghan Shyam was his uncle who was repairing radiator of the accidental truck when the accused ploughed the offending truck in to him and at the same time also colliding with the accidental truck. Deceased Ghan Shyam suffered injuries on the lower part of his body as he got crushed between the 2 trucks. Although, accused during his testimony u/s 315 of the Code has adopted the defence that the collision took place as one cow came from the right to left side and in order to avert the collision with cow he turned his vehicle towards the right side of the road that is center verge and got collided with the vehicle which was parked in the center verge but it is worthwhile to note that this defence was never posed to any of the prosecution witnesses particularly witness PW5 Gopal. Neither the same has been raised by him during his questioning u/s 313 of the code. Thus, this defence of the accused is clearly an after thought and can not be given any credence.
18. PW4 Ram Preet who also suffered injuries in the accident, has also deposed that while he was checking the radiator of truck, the number which he did not remember. The same vehicle banged into the stationed truck and due to the collision he fell down and suffered injuries on his head and right arm. He has also lost his consciousness and he could not see the vehicle. Be that as it may, it has already been proved that the accused as well as offending truck are involved in the accident in question. The testimony of PW4 Ram Preet has to some extent underpinned the otherwise unblemished testimony of PW5 Gopal.
State Vs. Tilak Chand @ Tillu FIR No.696/01 9/11
19. Further more, the FIR Ex. PW1/B in the instant case was registered with promptitude ruling out possibility of any embellishment. Witness PW2 ASI Sarita and PW6 HC Gurmeet Singh have corroborated the testimony of the complainant PW5 Gopal in material particulars.
20. In so far as the argument of Ld. Counsel for the accused that there are certain discrepancies in the testimony of PW2 ASI Sarita and PW5 Gopal, it is observed that the discrepancies pointed by Ld. Counsel are of trivial nature without denting the core of the case of the prosecution. To this effect, reliance is also placed upon the judgment of Supreme Court in Lal Bahadur & Ors. Vs. State (NCT of Delhi), 2013 II AD (CRI.) (S.C.) 575. Para 19 of the said judgment is as follows:
"19. So far as the contradictions and inconsistencies in the evidence of the prosecution witnesses, as pointed out by the counsel for the appellants, are concerned, we have gone through the entire evidence and found that the evidence of the witnesses cannot be brushed aside merely because of some minor contradictions, particularly for the reason that the evidence and testimonies of the witnesses are trustworthy. Not only that, the witnesses have consistently deposed with regard to the offence committed by the appellants and their evidence remain unshaken during their cross examination. Mere marginal variation and contradiction in the statements of the witnesses cannot be a ground to discard the testimony of the eyewitness who is none else but the widow of the one deceased. Further, relationship cannot be a factor to affect credibility of a witness. In the case of State of Uttar Pradesh Vs. Naresh & Ors. (2011) 4 SCC 324, this Court observed: "30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of State Vs. Tilak Chand @ Tillu FIR No.696/01 10/11 memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
21. In the totality of the facts and circumstances of the case, as discussed above, it is held that the prosecution has successfully build the case of reckless driving against the accused leading to the death of deceased Ghan Shyam and simple injuries upon the person of PW4 Ram Preet. Thus, accused Trilok Chand @ Tillu stands convicted u/s 279/337/304 A IPC. Let he be heard on the point of sentence.
Announced in the open court (Navjeet Budhiraja) on 02.11.2015 MM04/South, New Delhi
It is certified that this judgment contains 8 pages and each page bears my signatures.
(Navjeet Budhiraja)
MM04, South, New Delhi/02.11.2015
State Vs. Tilak Chand @ Tillu FIR No.696/01 11/11