Delhi District Court
State vs . Rajmani Thakur on 16 October, 2014
IN THE COURT OF Ms. CHETNA SINGH:MM-02(SOUTH DISTRICT)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Rajmani Thakur
FIR No. 579/08
U/s : 279/337 IPC
P.S. : Malviya Nagar
Date of institution of case : 17.09.2008
Date on which case reserved for judgment : 16.10.2014
Date of judgment : 16.10.2014
JUDGMENT
1.FIR No. of the case : 579/08
2.Date of the Commission : 27.07.2008
of the offence
3.Name of the accused : Rajmani Thakur S/o Sh. Ajit Thakur
: R/o H. No. 600, Ward No. 3, Mehrauli,
: New Delhi.
4.Name of the complainant : Sh. Ajay Kumar S/o Sh. Prakash Chand
: R/o H. No. 102C, Sector 4, Pushp
: Vihar, New Delhi.
5.Offence complained of : 279/337 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Convicted u/s 279/337 IPC
FIR No. 579/08 State Vs Rajmani Thakur Pages 1/15
BRIEF FACTS
1. The story of the prosecution is that on 27.07.2008 at about 11.00pm at Press Enclave Road near PPS, Malviya Nagar, New Delhi within the jurisdiction of PS Malviya Nagar, accused Rajmani Thakur was found driving a vehicle i.e. Bus bearing no. DL-1PB-1296 on the public way in a rash and negligent manner so as to endanger human life and public safety to others and while driving the above said vehicle in same manner accused hit against one motorcycle bearing no. DL-3SAQ-2706 and caused simple injury on the person of complainant Ajay Kumar and accused was found driving the said vehicle without valid DL and under the influence of liquor and thereby accused Rajmani Thakur committed offences punishable u/s 279/338 IPC & 3/181/177 & 185 M.V. Act.
2. On the basis of the said allegations and on the basis of the complaint of the complainant, an FIR bearing number 579/08 under section 279/338 IPC & 3/181/177 & 185 M.V. Act was lodged at Police Station Malviya Nagar.
3. After investigation, charge-sheet under section 173 Cr.P.C was filed on 17.09.2008.
4. On the basis of the charge-sheet, charge for the offences punishable under section 279/338 IPC & 3/181/177 & 185 M.V. Act was framed against the accused person namely Rajmani Thakur and read out to the said accused person, to which he pleaded not guilty and claimed trial on 02.04.2009 and 03.10.2012.
FIR No. 579/08 State Vs Rajmani Thakur Pages 2/15 APPRECIATION OF EVIDENCE
5. In order to prove the above said allegations against the accused Rajmani Thakur, prosecution has examined the following witnesses.
6. PW-1 Shadi Lal being retired foreman DTC was examined on 05.10.2009 and deposed that on 29.07.2008, he had conducted mechanical inspection of vehicle i.e. Bus bearing no. DL-1PB-1296 and motorcycle bearing no. DL-3SAQ-2706 at PS Malviya Nagar on the request of IO. His detailed reports are Ex. PW-1/A and PW-1/B respectively bearing his signature at point A.
7. This witness was not cross examined by the accused despite opportunity given.
8. PW-2 ASI Kamal Singh who is a formal witness was also examined on 05.10.2009 and proved the copy of FIR Ex. PW-2/A and his endorsement on the basis of rukka Ex. PW-2/B (OSR).
9. This witness was not cross examined by the accused despite opportunity given.
10. PW-3 Ajay Kumar being complainant was examined on 05.04.2010 and deposed that he does not remember the day, however it was in the month of July, 2008, he was coming back to his house at Pushp Vihar from PS Vasant Vihar on his motorcycle bearing no. DL-3SAQ-2706 and at about 11.00pm when he reached near PTS Malviya Nagar, one Bus of route no. 505 whose number he does not remember, came from behind and hit against his motorcycle due to which he received injury on his back and some other parts of his body. He further deposed that at the time of accident the offending vehicle was being driven by accused in a rash and negligent manner. He further deposed that PCR van came there and took him to FIR No. 579/08 State Vs Rajmani Thakur Pages 3/15 Trauma Center, AIIMS Hospital where he was medically examined and treated. He further deposed that his statement was recorded by police vide memo Ex. PW-3/A bearing his signature at point A and the accused was arrested vide memo Ex. PW-3/B. He further deposed that he also pointed out the place of accident to the police and obtained the said motorcycle on superdari vide superdginama Ex. PW-3/C bearing his signatures at point A.
11. On resiling from his earlier statement, this witness was cross examined by Ld. APP for State wherein he admitted that the incident was of 28.07.2008 and number of the offending bus is DL-1PB-1296. He further admitted that he had forgotten the above said facts due to lapse of time.
12. This witness was not cross examined by the accused despite opportunity given.
13. PW-4 HC Vikram was examined on 23.04.2011 and deposed that on 27/28.07.2008 he was posted at PP Saket, PS malviya nagar as DD writer and on that day he had recorded DD no. 29 and 31. Same are Ex. PW-4/A and B respectively (OSR).
14. This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that he does not have personal knowledge regarding the accident.
15. PW-5 HC Jagpal Singh was examined on 17.09.2011 and deposed that on 27.07.2008 he was posted at PP Saket, Malviya Nagar and on that day DD writer Vikram gave an information regarding accident at Press Enclave Road, PTS Malviya Nagar vide DD no. 29. He further deposed that he handed over the DD entry to HC Pradeep and went to the spot along with him where bus no. DL-1PB-1296 of route no. 505 and motorcycle no. DL-3SAQ-2706 make Bajaj were found and driver Ranmani Thakur was also present there and they came to know that the injured has already been FIR No. 579/08 State Vs Rajmani Thakur Pages 4/15 shifted to AIIMS hospital by PCR. He further deposed that Ct. Abhay Raj also came to the spot while patrolling who was left on the spot and thereafter, he along with HC Pradeep reached at AIIMS Hospital where they obtained MLC and statement of injured Ex. PW-3/A. He further deposed that Tehrir was prepared by the IO and got the case FIR registered. He further deposed that he went to the spot and handed over the copy of FIR and original tehrir to the HC Pradeep and on the same day complainant came to the spot and identified the accused/driver of the bus. Site plan was prepared at the instance of complainant vide memo Ex. PW-5/A. Accused was medically examined at AIIMS where he was found alcohol positive. He further deposed that accused was arrested and his personal search was conducted vide memos Ex. PW-3/B and PW-5/B bearing his signature at point B and A respectively. The bus and motorcycle were seized vide memos Ex. PW-5/C and D bearing his signature at point A respectively. DL was also seized vide memo Ex. PW-5/E. He further deposed that IO recorded his statement and accused was released on bail on same day. He further deposed that the identity of the bus was not disputed by Ld. Defence counsel.
16. This witness was not cross examined by the accused despite opportunity given.
17. PW-6 HC Abhay Raj was examined on 17.09.2011 and deposed that on the intervening night on 27/28.08.2008 he was on patrolling duty and at about 12.10 at night he reached Press Enclave Road, PTS Malviya Nagar where Ct. Jagpal and HC Pradeep were found and accident took place on the road and Bus no. DL-1PB-1296 of route no. 505 and motorcycle no. DL-3SAQ-2706 make Bajaj were also found at the spot. He further deposed that he was left on the spot and HC Pradeep went to AIIMS Hospital and thereafter, came back and he handed over the accused present in the court FIR No. 579/08 State Vs Rajmani Thakur Pages 5/15 that this person himself approached him stating that he committed the accident and is driver of the bus. where they obtained MLC and statement of injured Ex. PW-3/A. Site plan was prepared vide memo Ex. PW-5/A. The bus and motorcycle were seized vide memos Ex. PW-5/C and D respectively. DL was also seized vide memo Ex. PW-5/E. Accused was arrested and his personal search was conducted vide memos Ex. PW-3/B and PW-5/B respectively. He further deposed that IO recorded his statement. He further deposed that the identity of the bus was not disputed by Ld. Defence counsel.
18. This witness was not cross examined by the accused despite opportunity given.
19. PW-7 HC Pradeep Kumar being IO was examined on 03.10.2012 and deposed that on 27.07.08 he was posted at PP Saket, PS Malviya Nagar and on that day on receipt of DD no. 29, he along with Ct. Jagpal had went to the spot at Press Enclave road PTS malviya Nagar where bus no. DL-1PB-1296 and motorcycle bearing no. DL-3SAQ-2706 were found in accidental condition, at that time, Ct. Abhay Raj came to the spot and he asked Ct. Abhay to remain at the spot and left for the AIIMS hospital. Thereafter, the MLC of the injured was obtained and statement of injured/complainant was recorded which is already Ex. PW-3/A and they came back at the spot where Ct. Abhay Raj handed over to him the accused present in the court stating that he was driving the offending vehicle. In the meantime, injured also came at the spot and he identified the accused at the spot itself. Thereafter, he prepared Tehreer which is Ex. PW-7/A and got the case registered through Ct. Jagpal who came back at the spot after the registration of the FIR and handed over copy of FIR and original rukka to him. He further deposed that he prepared the site plan at the instance of complainant which is already Ex. PW-5/A. Accused was arrested and FIR No. 579/08 State Vs Rajmani Thakur Pages 6/15 personal search memo was prepared vide memo already Ex. PW-3/B and PW-5/B respectively. Thereafter, the bus and motorcycle were seized vide memo already Ex. PW-5/C and D respectively. DL of the accused was seized vide memo already Ex. PW-5/E. The offending vehicle was got mechanically examined. MLC of the injured as well as accused was obtained from hospital. In the medical examination of the accused it was revealed that the accused was under the influence of liquor and therefore, 185 M.V. Act and section 3/181 of M.V. Act was added in the MLC as accused was not permitted to drive heavy vehicle. He further deposed that after recording the statement of the witnesses and completion of formal investigation, challan was presented before court through SHO concerned. His cross examination was deferred as the main counsel was not available.
20. Further, MLC bearing No. 129955/08 dated 27.08.2008 which is Ex. P-1 has not been disputed by the accused as he had admitted the said documents on 13.03.2014 in his statement u/s 294 Cr.P.C. Accordingly, same was dispensed with being admitted u/s 294 Cr.P.C.
21. As all witnesses were examined by the prosecution, PE was ordered to be closed on 22.07.2014. Statement of accused u/s 313 Cr.P.C. was recorded on 22.07.2014 in which he stated that he has been falsely implicated in this case and he does not want to lead any defence evidence.
22. Final arguments were advanced by Ld. APP for the state and by Ld. Defence counsel. Heard.
Reasons for Decision
23. In the present matter prosecution has examined seven witnesses in total to prove its allegations qua accused that on the date and time as FIR No. 579/08 State Vs Rajmani Thakur Pages 7/15 earlier mentioned, the accused Rajmani Thakur was driving his vehicle i.e. Bus bearing no. DL-1PB-1296 on the public way in a rash and negligent manner and hit against motorcycle bearing no. DL-3SAQ-2706 and thereby causing simple injuries to the complainant Ajay Kumar and accused was found driving the said vehicle without valid DL and under the influence of liquor and thereby committing offences punishable u/s 279/337 IPC and 3/181/177 & 185 M.V. Act.
24. Further, before appreciation of evidence, it is necessary to state the essential ingredients of section 279 IPC. Same 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.
The words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Blacks 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.
Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by H.L.A.Hart in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently.
"[A] careful consideration is needed of the difference between the meaning of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely FIR No. 579/08 State Vs Rajmani Thakur Pages 8/15 describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The word 'negligently', both in legal and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash'as doing something that may not be sensible without first thinking about the possible results.
Elaborating further, in State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, 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 knowl- edge 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 negli- gence is the gross and culpable neglect or failure to exer- cise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual."
8. The distinction has been very aptly pointed out by Holloway, J. in these words :
FIR No. 579/08 State Vs Rajmani Thakur Pages 9/15 "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. HCR 119)".
25. Prosecution has examined seven witnesses in total. Charge u/s 279/337 IPC and 3/181/177 & 185 M.V. Act was framed qua accused Rajmani Thakur on 02.04.2009 and 03.10.2012. Complainant has been examined as PW-3 Ajay Kumar who deposed that he does not remember the day, however it was in the month of July, 2008, he was coming back to his house at Pushp Vihar from PS Vasant Vihar on his motorcycle bearing no.
DL-3SAQ-2706 and at about 11.00pm when he reached near PTS Malviya Nagar, one Bus of route no. 505 whose number he does not remember, came from behind and hit against his motorcycle due to which he received injury on his back and some other parts of his body. He further deposed that at the time of accident the offending vehicle was being driven by accused in a rash and negligent manner. He further deposed that he was taken to the Trauma Center, AIIMS Hospital by PCR and the driver of the offending vehicle was correctly identified by him. He further identified his statement Ex. PW-3/A bearing his signature at point A. FIR No. 579/08 State Vs Rajmani Thakur Pages 10/15
26. This witness was not cross examined by the accused despite opportunity given. Apart from this witness, PW-2 ASI Kamal Singh was examined who deposed that on the date of accident i.e. 28.07.2008 he was posted as DO at PS malviya nagar and at about 2.30am he received a Rukka through Ct. Jagpal and on the basis of which he recorded the present case FIR, copy of which has been exhibited as Ex. PW-2/A and endorsement on rukka has been exhibited as Ex. PW-2/B (OSR).
27. The prosecution has further examined HC Vikram as PW-4 being DD writer at PS Malviya Nagar on 27/28.07.2008 and he recorded the DD no. 29 and 31 vide memos Ex. PW-4/A and B respectively (OSR).
28. Apart from this witness, the Mechanical Inspector has been examined as PW-1 who gave his detailed report Ex. PW-1/A and PW-1/B bearing his signature at point A. The said two reports mentions the damage on the offending vehicle bearing no. DL-1PB-1296 which are as follows:
● Front number plate bend.
● Front bumper bend.
29. On the other hand the mechanical inspection report of the motorcycle of the injured bearing no. DL-3SAQ-2706 are as follows:
● Head light cover broken.
● Front both indicator broken.
● Rear back light broken.
● Rear both Indicator broken.
● Rear handle of seat broken.
● Left smashed bend scratched.
● Petrol Tank bend.
30. It is clear from the nature of damages on both the vehicles that FIR No. 579/08 State Vs Rajmani Thakur Pages 11/15 the accident took place in the manner as explained by PW-3. The spot of accident has further been explained by site plan which is on record which is Ex. PW-5/A in which the position of the offending vehicle and the vehicle of the injured have been mentioned.
31. Other witnesses examined by the prosecution are PW-5 HC Jagpal Singh, PW-6 HC Abhay Raj and PW-7 HC Pradeep Kumar who were with each other during the course of investigation and during the preparation of various documents being Rukka, seizure memo of the vehicles, site plan, arrest memo or personal search memo of the accused. Their depositions are not repeated here for the purpose of brevity. However, they have also deposed consistently along with public witness who had deposed that the offending vehicle hit from behind as a result of which the motorcycle of the complainant fell down and complainant received simple injury. The identity of the accused has also been established.
32. Apart from material witness corroborating in his examination in chief, the accused has also given his statement u/s 294 Cr.P.C. wherein MLC bearing No. 129955/08 dated 27.08.2008 which is Ex. P-1 has not been disputed as he has admitted the said document on 13.03.2014 u/s 294 Cr.P.C. In "Shabbir Mohammad Vs State of Rajasthan" (FB) (1996 Cr.L.J. 1015) it has been held that :
"If the genuineness of any document produced by the prosecution or the accused is admitted by opposite party, when called upon to do so under sub-setion (3) of Section 294 of the Code, it can be read by the court as a substantive piece of evidence for deciding the issue pending before it with its probative value being the same as it would have had it had been proved by the party concerned on its genuineness having disputed by the opposite party when called upon to do so under sub-section (1) of Section 294 of FIR No. 579/08 State Vs Rajmani Thakur Pages 12/15 the Code".
Further in "Boraiah @ Shekar Vs State" [2003(2) R.C.R. (Criminal) 160] it has been held that :
"Section 294 Cr.P.C. dispenses with proof of every document when it becomes formal on its genuineness not being disputed. Sub-section (3) of Section 294 Cr.P.C. covers postmortem reports and every other document of which genuineness is not disputed. Once the requirements of Section 294 are fulfilled, there could be no difficulty in treating such document as substantive evidence in the case. In fact after indication of no dispute as to the genuineness of a document, proof of document is reduced to a sheer empty formality.
Such a document may be read in evidence under sub-section (3) of Section 294. Neither the signature nor the correctness of its contents need be proved by the prosecution or the accused by examining its signatory as it is admitted to be true or correct. The phrase 'read in evidence' means read as substantive evidence, which is the evidence adduced to prove a fact in issue as opposed to the evidence used to discredit a witness or to corroborate his testimony".
Also in "Akhtar Vs State of Uttranchal" [SC 2009(2) AICLR745] it has been held that :
"If the accused had admitted the injury reports and postmortem reports under Section 294 Cr.P.C. He cannot later contend that the said documents cannot be read into substantial evidence due to non- examination of doctors, and the said document shall be read as valid and substantive evidence under Section 294 Cr.P.C."
33. Apart from the admission of accused of the MLC u/s 294 Cr.P.C., there is also a statement of accused recorded u/s 313 Cr.P.C. r/w section 281 FIR No. 579/08 State Vs Rajmani Thakur Pages 13/15 Cr.P.C. in which he has admitted that the accident took place. However, he was not driving the offending vehicle. He further admitted that he was not having valid DL at that time and had consumed liquor during the day time.
34. Thus, it is clear that the factum of incident and the fact that the the accident took place. However, he was not driving the offending vehicle and he further admitted that he was not having valid DL at that time and had consumed liquor during the day time has been admitted by the accused. It has been settled by the various higher courts that admission under section 313 Cr.P.C. can be taken to be a relevant fact in deciding the fate of the accused.
This question has been decided by the Hon'ble High Court in case titled :
Janki Dass Vs. State 1995CriLJ2175, (1994)ILR Delhi392 In this murder reference the only question of law that arose for consideration was as to whether a admission made under section 313 of the Cr.P.C. can form the basis of conviction. The Court Held that : "The underlying object behind Section 313 is to give an opportunity to the accused to be heard not only on what is prima facie proved against him but on a very circumstance appearing in evidence against him so that he is not condemned unheard. It enables the accused to explain the circumstances appearing against him in evidence. The answers given by an accused may be taken into consideration in judging not only his innocence but also judging his guilt. There is nothing in the language of Section 313 to suggest that answers given by an accused admitting the evidence or circumstances proved against him, have to be ignored and have not to be taken into consideration for judging his guilt.
FIR No. 579/08 State Vs Rajmani Thakur Pages 14/15 The weight to be attached to the statement of an accused made under Section 313 of the Code though cannot be placed in a straight jacket since it has to vary according to the circumstances of each case, yet the legal position seems to be clear that such statements can be taken into consideration in judging not only the innocence but guilt of the accused and admission made in a statement under Section 313 of the Code can be made the basis of conviction".
35. It is clear from the testimony of the witnesses, MLC on record which has been admitted by the accused and the statement of the accused recorded u/s 313 Cr.P.C. that the complainant namely Ajay Kumar received injury on account of hitting from behind by the offending vehicle of the accused and hence, he is required to be convicted u/s 279/337 IPC and accused Rajmani Thakur is accordingly, convicted for offences punishable under section 279/337 IPC.
Be listed for arguments on sentence on 28.10.2014.
ANNOUNCED IN THE COURT (CHETNA SINGH) ON 16.10.2014 MM-02(SD)/16.10.2014
Certified that this judgment contains 15 pages and each page bears my signatures.
(CHETNA SINGH) MM-02(SD)/16.10.2014 FIR No. 579/08 State Vs Rajmani Thakur Pages 15/15 State Vs Rajmani Thakur FIR No.579/08 u/s 279/337 IPC PS Malviya Nagar 28.10.2014 ORDER ON SENTENCE Present: Ld. APP for the State.
Convict is present in person with Ld. Counsel.
Complainant Ajay Kumar is also present.
Arguments on sentence advanced.
It is submitted by Ld. Counsel that the convict is the first time offender and has clean antecedent and is the sole bread earner of his family. Hence, it is prayed that he be released on probation of good conduct.
On the other hand, Ld. APP for the State has argued for maximum punishment, as he states that the offence has been proved by the prosecution beyond a reasonable doubt and the convict does not deserve any leniency as he caused simple injuries to the complainant Ajay Kumar.
Heard.
Aggravating Circumstances:
Facts leading to the conviction of the convict clearly reveals that the convict was found driving his vehicle bearing no. DL1PB1296 in a rash and negligent manner and caused simple injuries to complainant Ajay Kumar. Thus, his guilt has been proved beyond reasonable doubt.
FIR No. 579/08 State Vs Rajmani Thakur Pages 16/15 2 Mitigating Circumstances:
(1)That the convict is the sole bread earner.
(2)That he is the first time offender.
(3) That the trial has been dragged for 6 long years.
Considering all the aggravating and mitigating circumstances and on account of submission made by Ld. Counsel for the convict on sentence, this court is of the considered opinion that convict is released on Probation of good conduct u/s 4 of Probation of Offenders Act, 1958 however, he is directed to deposit compensation of Rs. 10,000/ u/s 5 (1)(a) of the Probation of Offenders Act, 1958 to be paid to the injured Ajay Kumar. Further, convict is admonished for the offence u/s 3/181/177 and 185 M.V. Act.
Complainant Ajay Kumar has received compensation amount of Rs.
10,000/ from the convict today. ID proof of the complainant Ajay Kumar has been placed on record.
In view of the same, surety of the convict is discharged. Endorsement if any, be cancelled. Original documents if any, be returned to the surety.
Copy of the judgment and order on sentence be given to convict free of cost.
File be consigned to record room after necessary compliance.
(CHETNA SINGH) MM02/SD/28.10.2014 FIR No. 579/08 State Vs Rajmani Thakur Pages 17/15