Delhi District Court
Criminal Case/589/1999 on 4 April, 2015
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Bakshish Singh
FIR No. 588/99
PS Paschim Vihar
U/s 279/337/304A IPC
JUDGMENT
C C No. : 2568/2/10
Date of Institution : 05.11.1999
Date of Commission of Offence : 23.06.1999
Name of the complainant : Lekh Raj
S/o Prabhati Lal
R/o H. No. B-83, Pandav Nagar
Patel Nagar, Delhi
Name & address of the accused : Bakshish Singh
S/o Sawan Singh
R/o H. No. GH-6/I, Paschim Vihar
Delhi
Offence complained of : 279/337/304A IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted u/s. 279/337/304A IPC
Date of reserve for judgment : 20.03.2015
Date of announcing of judgment : 04.04.2015
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case u/s 279/337/304A IPC.
State v. Bakshish Singh U/s 279/337/304A IPC 1/13
FIR No. 588/99 PS Paschim Vihar
2. The briefly stated story of the prosecution is that on 23.06.1999, complainant Lekh Raj was going from Pandav Nagar to Nihal Vihar via Rohtak Road, Punjabi Bagh along with his wife Shobha and daughter Komal on his motorcycle bearing no. DL4SD2992. At about 5.00 pm, when he reached near the Ordinance depot, red light, Rohtak Road, one tanker bearing no. PAT 477 came from behind and hit his motorcycle from behind. It has been alleged that the accused was driving the said tanker at a very fast speed and in a rash and negligent manner. After hitting the motorcycle, the accused did not stop the truck and dragged the motorcycle for a long distance. The public got the truck stopped. The front right tyre of the truck ran over the complainant's wife and also the leg of the complainant. Due to the said accident, the wife of the complainant died on the spot while the complainant received serious injuries. The public took the injured and his wife to the hospital. Police reached at the spot. Thus the accused is alleged to have committed an offence under Section 279/337/304A IPC. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused under Section 207 Cr.P.C and thereafter charge under Section 279/337/304A IPC was framed against him by the Ld. Predecessor vide order dated 25.03.2003, to which he pleaded not guilty and claimed trial. He State v. Bakshish Singh U/s 279/337/304A IPC 2/13 FIR No. 588/99 PS Paschim Vihar has submitted that the motorcycle was trying to overtake from wrong side in a very fast speed and hit the bumper.
4. In order to prove the case against the accused, the prosecution has examined nine witnesses i.e (1) Vikas Dhamija (2) Lekh Raj (3) Dr. B. K. Sharma (4) Prabhati Lal (5) Ct. Satbir Singh (6) Chote Lal (7) K. D. Sharma (8) SI Naresh Kumar (9) ASI Malkiyat Singh.
5. PW-1 Vikas Dhamija deposed that in the year 1999, he was going from Peeragarhi to Punjabi Bagh. When he reached at red light of Ordinance depot in the evening time, he saw that public persons were given beatings to the driver. One lady, one person and small baby were lying in the injured condition on the opposite side. The lady and the baby were seriously injured. He along with 3-4 public witnesses removed the injured to the Agarsen hospital. The lady was declared brought dead while the baby had received serious injuries. The witness could not identify the accused nor could he remember whether any enquiry was made by the police. The witness was cross examined by the Ld. APP for State. During cross examination, he stated that might be possible that the date of occurrence was 23.06.1999. He stated that he had not seen the accident taking place and the driver had already been apprehended by the public persons. He denied the suggestion that he had not identified the accused deliberately. The witness was not cross examined by the Ld. Counsel for accused.
State v. Bakshish Singh U/s 279/337/304A IPC 3/13
FIR No. 588/99 PS Paschim Vihar
6. PW-2 is the complainant Lekh Raj who deposed that on 23.06.1999 he was going on his motorcycle bearing no. DL4ST 2992 with his wife Shobha and daughter Komal to Nihal Vihar via Rohtak Road. At about 5.00 pm, he reached in front of Ordinance depot, one tanker came from behind in a rash and negligent manner and hit his motorcycle. He deposed that due to the impact his motorcycle turned on the road while they were on the motorcycle. Truck dragged the motorcycle for about 15 feet along with witness and his family. The public asked the driver to stop but he did not stop. He crushed the complainant's wife under the tyre and thereafter he again backed the vehicle due to which his wife was again crushed on her breast. He tried to ran away from the spot but the public apprehended him on the spot. His statement was recorded in the hospital. Same is Ex.PW2/A. He identified the accused as the tanker driver. He also identified the photographs of the damaged motorcycle. Photographs of the motorcycle are Ex.P1 to P4 and negatives are Ex. P1A to P4D. Motorcycle is Ex.P5. Witness also identified the offending truck. Photographs of the truck are Mark A to D.
7. In the cross examination by the Counsel for accused, witness has submitted that photographs of the spot were not taken in his presence. He denied the suggestion that he had seen the truck and identified the same.
8. PW-3 Dr. B. K. Sharma had conducted the postmortem of the deceased Shobha on the request of SI Surender. His opinion was that the death was due State v. Bakshish Singh U/s 279/337/304A IPC 4/13 FIR No. 588/99 PS Paschim Vihar to haemorrhagic shock. All the injuries were antemortem in nature suggestive of vehicular accident. The postmortem report is Ex.PW3/A. In the cross examination, witness admitted that he had not signed the postmortem, however, he stated that the same in his handwriting and he may have inadvertently left the signature. He denied the suggestion that the postmortem report was not prepared by him.
9. PW-4 Prabhati Lal is the father in law of the deceased who had identified her dead body vide his statement Ex.PW4/A. The body was handed over to him and Chote Lal vide memo Ex.PW4/B. In the cross examination, he sated that he had received the body on the next day of incident.
10. PW-5 Ct. Satbir Singh deposed that on 23.06.1999 he had proceeded to the spot along with IO SI Surender Kumar Gulia on receiving DD NO. 27B where they found one tanker and motorcycle in accidental condition. The accused has already been apprehended by the public. PSI Kuldeep and Ct.Amrinder also reached at the spot. Injured had already been taken to the hospital. He deposed that he along with IO had gone to Agrasen hospital and collected the MLC of the injured persons. IO recorded the statement of injured Lekh Raj. He prepared the rukka and handed it over to the witnesses for registration of FIR. He went to the police station and returned back to the spot along with copy of FIR and rukka which he handed over to the IO. IO photographed the spot using a private camera. Tanker and the motorcycle were seized vide memo State v. Bakshish Singh U/s 279/337/304A IPC 5/13 FIR No. 588/99 PS Paschim Vihar Ex.PW5/A and Ex.PW5/B respectively. DL of the accused was taken into possession vide memo Ex.PW5/C. The accused was arrested and his personal search was conducted vide memo Ex.PW5/D. During cross examination, witness stated that there were 20-30 public persons were present at the spot. He had gone to the police station after 7.00 pm and returned at the spot at about 8.15 pm.
11. PW-6 Chote Lal deposed that on 23.06.99 he went to Maharaja Agrasen Hospital, Punjabi Bagh. He had seen the dead body of his daughter namely deceased Shobha. He identified the dead body of the same vide memo Ex.PW6/A.
12. PW-7 is K. D. Sharma, Record Clerk from Maharaja Agrasen Hospital. He identified the handwriting and signatures of Dr. P. R. Narayana on the MLC No. 1764 of injured Komal, 1765 of Lekh Raj and 1767 of Shobha. Same are Ex. PW7/A, Ex.PW7/B and Ex.PW7/C respectively.
13. PW-8 SI Naresh Kumar deposed that on 23.06.99 he was posted as duty officer at PS Paschim Vihar. On that day, his duty timings were from 4.00 pm to 12.00 mid night. On that day at about 7.30 pm, Ct. Satbir brought the rukka which was sent by SI Surender for registration of FIR. He proved the FIR as Ex.PW8/A and endorsement on rukka as Ex.PW8/B.
14. PW-9 is ASI Malkiyat Singh who had brought the register no.19. He had made entry no. 2758 and proved the same as Ex.PW9/A. State v. Bakshish Singh U/s 279/337/304A IPC 6/13 FIR No. 588/99 PS Paschim Vihar
15. Thereafter, the PE was closed. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied all the allegations and pleaded innocence. Accused stated that there was red signal at their side of traffic. When the signal turned green, he started his tanker and went ahead. All of a sudden the motorcycle who was trying to overtake the tanker came in front of the tanker. He was not at fault.
16. I have heard the submissions addressed by the Ld APP for state and the Ld. Counsel for accused and carefully perused the documents on record.
17. Ld. Counsel for accused has submitted that PW-1 who is the eye witness had failed to support the story of the prosecution and was declared hostile by the Ld. APP for State. He further submits that the IO has not been examined and without IO's corroboration, no statement can be taken into account. He also submits that though PW-2 had stated in his testimony that the tanker had dragged him for some distance, however the same has not been shown in the site plan. Hence, the prosecution has failed to establish the case against the accused.
18. On the other hand, Ld. APP for State has submitted that the prosecution has proved its case beyond reasonable doubt and the accused be convicted for the alleged offence.
19. To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable State v. Bakshish Singh U/s 279/337/304A IPC 7/13 FIR No. 588/99 PS Paschim Vihar doubt. The three essential ingredients are as follows:-
1. That the accident actually took place.
2. That the accident took place due to rash and negligent driving.
3. That the accused was the person who was driving the vehicle at the relevant time.
20. Before proceeding further, let us discuss the meaning of the expressions "rash"
and "negligent". These 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 characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
21. In "State of H.P. v. Piar Chand", Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Hon'ble High Court of Himachal Pradesh, while dealing with the meaning of the expression " rashness " and " negligence " held as follows :
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper State v. Bakshish Singh U/s 279/337/304A IPC 8/13 FIR No. 588/99 PS Paschim Vihar precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual."
22. 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".
23. In the present case, the most important witnesses of the prosecution were PW-1 and PW-2. PW-1 was purported to be an eye witness. However, he had stated he had reached the spot after the accident had already taken place. He had only seen that one man, one lady and one baby were lying injured. He could not remember the number of the offending vehicle nor could he identify the accused. However, PW-2 injured Lekh Raj has fully corroborated the story of the prosecution. He has correctly identified the vehicle as well as the State v. Bakshish Singh U/s 279/337/304A IPC 9/13 FIR No. 588/99 PS Paschim Vihar accused who was driving the vehicle at the relevant time.
24. In the present case, it has not been disputed by the accused that he was driving the tanker on the alleged date, time and place. He has also not denied the factum of accident between his tanker and the motorcycle. However, he has submitted that he was not driving in a rash and negligent manner and it was the motorcyclist who was coming in a fast speed and was trying to overtake from wrong side.
25. The photographs of the spot i.e Mark A to Mark D are on judicial record. In these photographs skid marks are clearly visible which suggest that the motorcycle was dragged to some distance by the truck. The said marks are appearing on the right side of the truck and the motorcycle is also lying on that side only. Hence, it does not seem a probability that the motorcycle was trying to overtake the truck from the wrong side i.e the left side.
26. Now the court shall examine the MLC of the injured persons. As per the MLC Ex.PW7/A of the infant Komal, aged six months, there were abrasions found over the recpital region. As per the MLC of injured Lekh Raj Ex.PW7/B, there were multiple abrasions on the lower limbs and the injuries were opined to be simple in nature. As per the MLC Ex.PW7/C of deceased Shobha, she was declared brought dead. There was amputation of left upper limp at the elbow region. Skin was found avulsed over the right part of chest and abdomen. Also tyre marks were found on the left lateral part of the chest. As per the State v. Bakshish Singh U/s 279/337/304A IPC 10/13 FIR No. 588/99 PS Paschim Vihar postmortem report of deceased Shobha, Ex.PW3/A following opinion was given by the concerned doctor:- "All the injuries are antemortem in nature, suggestive of vehicular accident as alleged. Death is due to haemorrhagic shock".
27. It is clear from the MLC Ex.PW7/C that the tyre of the tanker had ran over the chest of the deceased. It has been submitted by the Ld. Counsel for accused that the prosecution has not been able to prove the case beyond reasonable doubt as the rashness and negligence on the part of the accused while driving the truck has not been established. However, the court does not agree with the submission of the Ld. Counsel. From the photograph of the spot Mark A to D and MLC Ex.PW7/A to Ex.PW7/C, it is clear that the tanker was being driven in a high speed. The tanker hit the motorcycle from behind and dragged the motorcycle to some distance. Due to this, the deceased Shobha was crushed under the wheels of the said tanker. Also, the defence has not been able to impeach the credibility of PW-2 or to shake the veracity of his testimony in the cross examination. There is no reason for the court to disbelieve the testimony of PW-2. Moreover, the accused has failed to prove that he was not driving in a high speed or that the motorcyclist was trying to overtake from left side, as he has not led any evidence in his defence.
28. At this juncture, it would not be out of place to refer to the judgment delivered by Hon'ble Apex Court in case titled as "Shivaji Saheb Rao Bobade v State of Maharashtra" 1974(1)SCR 489UB. In the said case, the Hon'ble Supreme State v. Bakshish Singh U/s 279/337/304A IPC 11/13 FIR No. 588/99 PS Paschim Vihar court adopted a different approach to the principle of benefit of doubt and struck a note of caution that the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. It was held by the Hon'ble Supreme Court, "Our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents......The judicial instrument has a public accountability. The cherished principle of golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt."
29. Hence, from the testimony of prosecution witnesses, which has been sufficiently corroborated by the medical evidence and the photographs of the spot, the court is of the considered opinion that the prosecution has successfully proved that the accused was driving the truck number PAT 477 in a rash and negligent manner on the alleged date, time and place and while driving in such a manner, he hit the motorcycle bearing no. DL4SD 2992 and dragged it to some distance. Due to the impact of the same, pillion rider Shobha was crushed under the wheel of the truck and died while the State v. Bakshish Singh U/s 279/337/304A IPC 12/13 FIR No. 588/99 PS Paschim Vihar complainant Lekh Raj and baby Komal sustained simple injuries.
30. In view of the above discussion, the court is of the opinion that the prosecution has successfully proved its case beyond reasonable doubt. Accordingly, accused Bakshish Singh stands convicted under Section 279/337/304A IPC.
31. Be listed for arguments on sentence.
ANNOUNCED IN THE OPEN COURT ON 4th April 2015 (SAUMYA CHAUHAN) MM-07(West)/THC/04.04.2015 State v. Bakshish Singh U/s 279/337/304A IPC 13/13 FIR No. 588/99 PS Paschim Vihar