Delhi District Court
Judgment Of Prabhakaran vs . State Of Kerala, Air 2007 S.C 2376 on 17 December, 2014
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI
SC No. 138/10
(Unique ID No. 02403R0010582008)
FIR No.: 713/07
U/S: 184/198/188 of the Motor Vehicle Act
and Sections 308/323/325/304 Part-II of IPC
PS: Badarpur
State
Versus
(1) Anil Kumar
S/o Inder Dutt
R/o: B-144, Hari Nagar Ashram,
Near Malik Dharam Kanta,
New Friends Colony, New Delhi.
(2) Manish Kakkar
S/o Suraj Parkash Kakkar
R/o: F-43, Sector-51, NOIDA
(3) Nawab Khan
S/o Bundu Khan
R/o:870, Bankey Lal Market,
Badarpur, New Delhi.
Date of Institution : 07.01.2008
Date of Institution in Sessions Court : 17.03.2008
Date of Institution in this Court : 15.11.2010
Date of Pronouncement Order : 17.12.2014
SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 1/61
JUDGMENT
1. The case of the prosecution is that on 07.10.2007 at about 10:07 a.m, an information was received that 10-12 persons have met with a fatal accident near Aali Morh and lot of Police personnel were requisitioned. Staff was sent at Aali Morh, Mathura Road where Bus No. DL 1PB 8776 of route No. 460 was found in accidental condition. Sixteen persons were found lying in unconscious condition on the pavement. A cycle was trapped under the rear tyres of the bus. Injured persons were sent to the hospital in PCR vans. Statement of an eye witness Sanjay was recorded, who stated that at about 9:30-9:45 a.m, he alongwith his father Guljari Lal, mother Phoolwati, sister Beena and nephew Daman, were waiting on Aali Morh Bus Stand for going to Trilok Puri. At that time, Bus No. DL 1PB 8776 of route No. 460 came from the side of Badarpur and the Driver ran over the bus in a fast speed over the waiting passengers. First, a woman was injured but the Driver did not stop the bus. His parents, sister, his nephew and other 10-12 persons sustained injuries. 6-7 persons died at the SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 2/61 spot. Driver of the bus, namely, Anil Kumar was apprehended by the public at the spot and was given beatings. On this statement, case under Section 279/337/304 IPC was registered. During investigation, it was found that Manish Kakkar is the owner of the bus and Nawab Khan was the Contractor of the bus. The speed governor of the bus was found to be tampered. Owner and Contractor were also arrested and after completion of investigation, charge-sheet under Section 279/337/338/304/120B IPC was filed against the accused persons.
2. Vide Order dated 28.01.2009, a prima facie charge u/s 184 of the Motor Vehicle Act and Sections 308, 323, 325 and 304 Part-II of IPC was found against accused Anil Kumar. Against accused Manish Kakkar, who is a owner of the offending bus and accused Nawab Khan, who is Contractor of the said bus, charges u/s 198 and Section 188 r/w Section 184 of Motor Vehicle Act were framed. All the accused persons pleaded 'not guilty' and claimed trial.
SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 3/61
3. Prosecution examined 39 witnesses in support of its case. The witnesses can be categorized as independent public witnesses-eyewitness/victims and witnesses of body identification; medical witnesses; expert witnesses and police witnesses.
4. Independent Public Witnesses -Eyewitness/Victims 4.1. PW-1 Sanjay S/o Gulzari Lal (PW-3) is the complainant and he stated that on 07.10.2007 at about 9.20/9.30 AM, he was standing at Aali Morh bus stop alongwith his father, mother, sister and his nephew. From Badarpur side, a bus of Route No. 460 came at a high speed and crushed 8-9 persons including his father, mother, nephew and sister. He could not tell the number of the said bus. He stated that his sister died due to the accident, while others received injuries. He stated that name of the driver of that bus was Anil and he identified accused Anil in court. He proved his statement recorded by the police as Ex. PW1/A. He also proved the recovery memo of the driving license and badge of accused as Ex. PW1/B. He identified the driving license and the badge in the court and the same were Ex. P-1 and Ex. P-2. The bus SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 4/61 was not produced in court, but the Counsel for accused Anil stated that he does not dispute the identity of the bus and has no objection if the said bus is not produced in the court. In his cross- examination, he stated that his relatives were standing near footpath when he left to buy cigarette. He further stated that he saw accused Anil sitting on the driver's seat of the offending bus. He denied the suggestions that by the time he turned back, driver of the said bus had already fled away from the spot. He also denied the suggestion that since public was beating accused Anil, he took him to be the driver of the bus. The witness volunteered to add that accused was sitting at the steering of the bus and was pulled down by the public persons from bus, in his presence. He admitted that there was no proper bus stand at the stop, but everyone used to catch the bus from there only, and that place was used as a bus stop. He admitted that the actual bus stop is after crossing the traffic signal. He could not remember whether a DTC bus was standing at the spot, as he had become very nervous after the incident.
SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 5/61 4.2. PW-2 Phool Wati W/o Gulzari Lal (PW-3) is mother of the complainant Sanjay (PW-1). She stated that it was a Sunday. About two years ago, (she could not tell the date), at about 9.30 AM, she was standing alongwith her daughter, her husband and her grandson at the bus stop, under the bridge, outside Gautam Puri, and they were waiting for the bus. A bus came from the side of Badarpur at a high speed and crushed many people including her daughter, her husband and her grandson. She also received serious injuries. She could not tell the Route number or registration number of the bus. She stated that driver of the said bus was caught at the spot and she identified accused Anil in the court as the driver of the said bus. The identity of the bus was not disputed by the Counsel for accused Anil, and hence, the same was not produced in the court. In her cross-examination, she stated that all the persons who board the bus, used to stand there for that purpose and it was being used as a bus stop, although, proper DTC bus stop was situated at a some distance after the red light crossing, from where they were standing to board the bus. She stated that she was not aware if any DTC bus came prior to the bus of the SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 6/61 accused. She stated that they were standing on the footpath of the road. She further stated that they did not come on the road and the accident took place on the footpath itself. She denied the suggestion that they ran to catch a DTC bus, which came ahead of the bus of the accused and the DTC bus stopped due to red light and in the process, they came on the road and were hit by the bus of the accused.
4.3. PW-3 Gulzari Lal is father of the complainant Sanjay (PW-1) and he stated that on 07.10.2007, he was standing on the road near Aali Morh alongwith his wife, his daughter, and his grandson. At about 9.20 AM, a bus came at a very high speed from the side of Badarpur and after crushing them, it went ahead. He lost his senses and regained his consciousness in the hospital, after about 15 days. He, his wife and his grandson received serious injuries. He could not tell as to who was driving the bus. He stated that later on, he came to know that the accused Anil was driving the said bus. The witness was cross-examined by Ld. Addl. PP regarding identity of the accused and he stated that he was told SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 7/61 that accused was also admitted in the same Trauma Centre as he was beaten by public at the place of the accident. In his cross- examination, he stated that a DTC bus was stationed towards the edge of the road with a small gap, through which, only a Maruti vehicle could pass. He volunteered to add that the offending bus entered in that gap at a high speed. He stated that there is a Zebra crossing at some distance from where accident took place and the accident took place before the red light. He denied the suggestion that as the people ran to catch the DTC bus, therefore, they were hit by the offending bus. He volunteered to add that the accident took place as the offending bus wanted to overtake the DTC bus. He stated that at the time of the incident, signal at the crossing was 'green' and the offending bus wanted to overtake the DTC bus. 4.4. PW-4 Rangi Lal is an injured, who stated that on 07.10.2007, he reached Ali Gaon Morh at about 9.30 AM. He was waiting for the bus and was standing at the footpath at the bus stand. Other passengers were also standing there and waiting for the bus. One bus of Route No. 460 came from Badarpur Border SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 8/61 side and hit against him and other passengers. He became unconscious and regained his consciousness after about three days of the incident. He saw that his neighbour Gulzari Lal, his grandson and his daughter-in-law were also lying on the bed of the hospital. He also came to know that driver of the said bus was also admitted in the said hospital. He could not tell as to who was driving the bus. The witness was cross-examined by the Ld. Addl. PP, but he could not tell if the registration number was DL 1 PB 8776. He admitted that driver of the said bus which caused the accident, was driving the bus at a fast speed. He could not tell if the said bus hit against a lady standing at the bus stop, and despite this, he did not stop the bus and ran over his bus on other passengers waiting at the stop. He stated that the bus hit him and other passengers and he sustained injuries on his face, head and other parts of the body. He admitted that 15-16 passengers also sustained injuries, waiting at the bus stop. He stated that 6-7 persons died at the spot. He admitted that in the hospital, he came to know that the name of the driver of the offending bus was 'Anil Kumar'. He could not say if accused Anil Kumar who was present SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 9/61 in the court, was the same person, who was driving that bus on that day. He denied the suggestion that he was not identifying the accused Anil Kumar in court, due to being won over by him. In his cross-examination for the accused Anil Kumar, he stated that at the place of incident, there was no authorized bus stop. He stated that he was standing at the footpath and did not run for boarding the bus for going to NOIDA. He volunteered to add that the bus for NOIDA had not come till that time.
4.5. PW-6 Radhey Shyam Verma is another victim, who stated that on 07.10.2007, at about 9.45 AM, he was going on his bicycle and when he reached near traffic signal of Aali Gaon Morh bus stand, one bus of Route No. 460 came from behind and hit his bicycle and against other persons. His bicycle make 'Hercules' came under the bus and he sustained injuries on his head, forehead, face, waist, left leg, and other parts of his body. He stated that public persons, with great difficulty, removed him from under the bus. He saw 5-6 persons lying dead at the spot having sustained injuries. He saw that accused Anil Kumar was on the driving seat SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 10/61 of the bus and public was beating him. Police came at the spot and saved driver Anil from public. The witness was taken to Apollo Hospital. Later on, he was taken to AIIMS hospital by police. He stated that the number of the offending bus was 8776 and the bus was being driven at a fast speed. He identified accused Anil in court, to be the driver of the said bus. He stated that police seized his damaged bicycle, which he took on superdari from the court. Ld. Defence counsel did not dispute the identity of the cycle and hence, it was not produced. In his cross-examination, he stated that after hitting the cycle, the bus drove for some distance and then, stopped. He stated that there was pavement near the place of incident. He stated that all the injured persons were lying on the pavement.
4.6. PW-25 Upender Kumar is a passenger of the offending bus, who stated that he was working as Supervisor in Soil Engineering Consultants, Bhikaji Cama Place, New Delhi. He stated that on 07.10.2007, he got down from Bus route No. 525 at Badarpur at about 8:30 a.m. He boarded bus route No. 460 having SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 11/61 registration No. 8776. He could not get a seat to sit and was standing behind the seat of the Driver. When the bus crossed the railway crossing before the Bus Stand of Aali Village, there was a traffic signal. A red-line bus was already standing at the red-light. Behind that bus, a DTC bus was standing. Between the DTC bus and the footpath on its left side, there was some space in which some people were standing. The bus in which he was present overtook DTC bus from left side crushing the people. First of all, a lady was crushed under the bus. Ahead of her, at a distance of about 7-8 feet, it crushed 6 persons under it. A red-line bus was there at a distance of about 10 feet ahead and the bus in which he was travelling, stuck it from behind and stopped there. Many passengers got down from the bus in which he was travelling. The Driver was caught and was beaten. He (witness) requested the public not to beat the Driver. He telephoned PCR at 100 number from his mobile phone No. 9871175773. PCR came and they saved the Driver from the public. Before the arrival of PCR, some public persons tried to burn rear tyres of the bus but Police extinguished the fire. Some persons got injured when they were SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 12/61 on road and some got injured due to impacts inside the bus. Police took them in an Ambulance. He left the spot. Before going, he had clicked some photographs of the crushed persons from the camera of his mobile phone. He was called by the Police at the spot at about 2:00-2:30 p.m. His statement was recorded at the spot. He transferred the photographs by blue-tooth on the mobile phone of a Police official. After 10-15 days of the incident, he was called for his statement in a court near India Gate. He proved his statement under Section 164 Cr.P.C recorded on 10.10.2007 as Ex. PW25/A. He identified the accused Anil in the court to be the Driver of the said bus. On being led by the Ld. Addl. PP, he stated that at the time of the accident, accused was driving the bus in a speedy and negligent manner. In his cross-examination for accused Manish and Anil, he stated that he does not possess the journey ticket of travel on 07.10.2007 in bus route No. 460. He stated that the IO had asked for the journey ticket but he could not produce the same as perhaps he had thrown that. In his cross-examination for accused Nawab Khan, he stated that at the time of overtaking the DTC bus, the bus in which he was travelling, was at the speed of SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 13/61 about 20-30 k.m per hour at the red-light.
4.7. PW-27 Umesh is a victim, who stated that on 07.10.2007 at about 9:45 a.m, he was standing near the Red-Light of Aali Gaon with other passengers for boarding a bus. A DTC bus was stationed at the Bus Stand. Behind that DTC Bus, a private bus of route No. 460 having registration No. DL 1PB 8776 was coming at a fast speed. He was standing on the pavement with other persons. A private bus came on the pavement and hit him. Many other persons were injured. Some even died due to the accident. He remained unconscious for about half an hour due to the impact of the accident. After regaining consciousness, he saw public giving beatings to the Driver of the bus. Police took him (witness) to the AIIMS Hospital. He received stitches on his upper lip and eyebrow. He identified the accused Anil Kumar in the court to be the Driver of the bus. In his cross-examination for accused Anil and Manish, he admitted that there is a Bus Stand after the Red-Light and that a DTC bus was standing at the Bus Stand. SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 14/61 4.8. PW-33 Phool Kumar Sharma is an injured eye-
witness. He stated that on 07.10.2007, he came from Old Faridabad with his Chacha on his motorcycle, who dropped him before the Red-Light of Aali Gaon at about 9:30-9:45 a.m. He saw bus of route No. 460 having registration No. 8776 coming from the side of Badarpur. At that time, he was standing there for crossing the road. The said bus hit him and he fell down on the footpath. He tried to save the Driver of the bus but due to injury, he could not get up. He sustained injuries on his stomach and right shoulder. Thereafter, he became unconscious. He regained consciousness in AIIMS Trauma Centre on 09.10.2007. He came to know that the Driver of the said bus was also admitted in the Hospital. He identified the Driver of the bus in the hospital and also identified accused Anil Kumar in the court to be the said Driver. On being led by the Ld. Addl PP, he admitted that other passengers and public persons were also standing there. He came to know that some persons had died and some were injured due to the accident caused by the bus. In his cross-examination for accused Anil and Manish, he stated that he became unconscious after about 15-20 SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 15/61 minutes of the accident. He could not recall the position of any other bus but stated that one more bus was also standing there.
5. Independent public witnesses - Body identification 5.1 PW-8 Keshav Kumar identified the dead body of his niece Beena in AIIMS Mortuary on 08.10.2007 and proved his statement to that effect as Ex. PW8/A. 5.2 PW-11 Hari Prakash also identified the dead body of his niece Beena in AIIMS Mortuary on 08.10.2007 and proved his statement to that effect as Ex. PW11/A. 5.3 PW-28 Shamsher proved the identification of dead bodies of his grand-mother Smt. Satana vide Ex. PW28/A, of his Chachi Smt. Fatuman vide Ex. PW28/B and his Bua Smt. Sitara vide Ex. PW28/C. He also obtained their dead bodies after postmortem vide Ex. PW28/D to Ex. PW28/F respectively. 5.4 PW-31 Sarif proved the identification of dead bodies of his wife Babli and his son Tofiq as Ex. PW31/A and Ex. SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 16/61 PW31/B respectively. He also proved receiving their dead bodies vide memos Ex. PW31/C and Ex.PW31/D respectively. 5.5 PW-32 Mohd. Saddam proved the identification of dead body of his wife Fatuman as Ex. PW32/A. He also proved receiving her dead body vide memo Ex. PW28/E. 5.6 PW-34 Mohd. Insan proved the identification and taking of dead body of his wife Sitara vide memo Ex. PW28/F.
6. Medical Witnesses:
6.1 PW-5 Dr. Abhinav Kumar deposed on behalf of Dr. Lung Sum Pau Goormai and identified his handwriting and signatures as he had worked with the said Dr. Lung Sum Pau Goormai. He proved the MLCs of Rangi Lal S/o Ram Adhari, Chetan, unknown person and Smt. Satana W/o Chetan as Ex.
PW5/A to Ex. PW5/D. Rangi Lal and Chetan had suffered 'simple injuries' but the unknown person and Smt. Satana were 'brought dead'. In his cross-examination, he stated that the said doctor was SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 17/61 working under him during his tenure and on 07.10.2007, he (witness) was doing his duty in Casualty of AIIMS hospital. 6.2 PW-7 Dr. Surjit Kumar deposed on behalf of Dr. Aman and proved the MLC of Gulzari Lal as Ex. PW7/A, identifying his signatures on the said MLC on the basis of medical records. He stated that injured Gulzari Lal sustained 'grievous injury' in Road Traffic Accident. He proved the MLC of Smt. Fatuman W/o Saddam as Ex. PW7/B and identified the signatures of Dr. Aman on that also and stated that as per the said MLC, the patient was 'brought dead'.
6.3 PW-9 Dr. R. K. Ramchandani deposed on behalf of Dr. Jaya Gupta. He proved MLC of baby Damman S/o Rakesh and baby Neha D/o Laddan as Ex. PW9/A and Ex. PW9/B. According to the MLC Ex.PW9/A, baby Damman received 'grievous injuries' whereas baby Neha received 'simple injury'.
6.4 PW-14 Dr. Imtiakum Jamir deposed on behalf of Dr. Harjit and proved the MLC of Smt. Sitra W/o Insan Ali as Ex. SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 18/61 PW14/A, identifying his signatures on the said MLC as he had worked with the said doctor. He stated that injured Sitra was declared 'brought dead' on 07.10.2007 at 11.12 AM. 6.5 PW-23 Dr. Lallan Kumar deposed on behalf of Dr. Amarnath Mukherji. He proved the MLC of injured Phool Kumar Sharma S/o Shyam Sunder as Ex. PW23/A by identifying the signatures of Dr. Amarnath Mukherji on the MLC as he had worked with him. According to the MLC, the injured had 'simple injuries' caused by Road Traffic Accident.
6.6 PW-29 Dr. Pankaj Kumar deposed on behalf of Dr. Mehmood and Dr. G. Rishi Kanta Sharma and identified their signatures and handwritings on the basis of office record which were brought by Record Clerk Ajit Singh. He proved MLC of injured Radhey Shyam S/o Satya Narain as Ex. PW29/A having 'simple blunt injury'. He proved the MLC of Smt. Phoolwati W/o Gulzari Lal as Ex. PW29/B, who had 'simple injuries'. He proved MLC of Smt. Babli W/o Sharif as Ex. PW29/C and she was 'brought dead'.
SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 19/61 6.7 PW-35 Dr. Vivek Kumar Roy of AIIMS Hospital, proved the MLC of Umesh S/o Chhote Lal as Ex. PW35/A, who suffered injuries due to road traffic accident, on his left eyebrow and lip and the injury was 'simple' with blunt object. 6.8 PW-36 Dr. Hasinain Reza of Apollo Hospital, proved the MLC No. 462/07 of an unknown male of 50 years of age, as Ex. PW36/A, who was declared 'brought dead' having suffered an injury of 3 c.m cut on his forehead in a road traffic accident. He also proved MLC of Radhey Shyam Verma S/o Satya Narain Verma as Ex. PW36/B, who had a cut injury on right upper lip, on skull, on knee and ankle. The injuries were suffered in a road traffic accident and the injured was referred to Ortho, Surgery and X-ray Department.
6.9 PW-37 Dr. Sunay Mahesh proved the postmortem reports of baby Taufiq S/o Rafiq as Ex. PW37/A; of Smt. Indermani W/o Daya Ram as Ex. PW37/B; of Mrs. Fatuman W/o Mohd. Saddam as Ex. PW37/C and of Smt. Sitara W/o Insan as Ex. PW37/D. The cause of death was possible due to Road Traffic SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 20/61 Accident.
6.10 PW-38 Dr. Sukhdeep Singh proved the postmortem report of Beena W/o Gulzari Lal as Ex. PW38/A; of Babli W/o Sharif as Ex. PW38/B and of Satana W/o Chetan as Ex. PW38/C. The cause of death was a result of a Road Traffic Accident.
7. Expert Witnesses:
7.1 PW-12 Anil Chikara is MLO of Transport Department, who stated that in October 2007, he got an information regarding accident of a blue-line bus number DL 1 PB 8776 at Sarita Vihar. He and Rakesh Vaid inspected the bus and submitted his report to the then DC (South). He proved his report as Ex. PW12/A. In his cross-examination, he stated that he inspected the vehicle on the day of the incident itself at about 4.00 PM and it was a Sunday.
7.2 PW-13 Rakesh Vaid is an Inspector of Transport Department. He stated that on 07.10.2007, he got an information SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 21/61 regarding accident of a blue-line bus number DL 1 PB 8776 at Sarita Vihar. He and Anil Chikara inspected the bus and submitted his report Ex. PW12/A to the then DC (South).
7.3 PW-17 Jitender Kumar, Senior Scientific Officer, Chemistry, FSL proved his FSL Report dated 18.10.2007 of accused Anil Kumar as Ex. PW17/A that no intoxicant was found in his blood sample.
7.4 PW-18 Taslimuddin Sidiqui is government approved Mechanical Inspector, who had examined the bus in question on 08.10.2007 in P.S. Sarita Vihar. He proved his report as Ex.
PW18/A, according to which, brakes were found O.K and speed governor wiring was found earthed, as a result of which, it was not functioning. In his cross-examination for accused Manish Kakkar, he denied the suggestion that the speed governor stopped functioning because of the impact of the accident. He stated that the speed governor had been deliberately earthed so that the bus could run at a faster speed. He denied the suggestion that the speed governor installed in the bus was tamper proof and could not be SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 22/61 meddled with.
8. Police Witnesses:
8.1 PW-10 HC Mahesh Kumar deposed that on 07.10.2007 at about 10:15 a.m., he received a DD No. 12A which he proved as Ex. PW10/A regarding fatal accidents of 10-12 persons at Aali Morh, Mathura Road. He alongwith Ct. Sukhram reached the spot and saw 5-6 persons already dead and 4-5 persons lying in injured condition. 6-7 PCR vans reached the spot and took the deceased persons and the injured persons to AIIMS Hospital and Apollo Hospital. He alongwith Ct. Sukhram reached AIIMS Hospital and obtained 14 MLCs, out of which, 6 were declared 'brought dead'. Out of the 8 injured persons, Driver of the offending bus was also one of the injured. He received a telephonic message from P.S. Badarpur that out of the two persons taken to Apollo Hospital, one was declared 'brought dead'. He recorded statement of eyewitness Sanjay at the spot (Ex.PW1/A).
He prepared Rukka which he proved as Ex. PW10/B and handed over the same to Ct. Sukhram for registration of FIR. Thereafter, SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 23/61 the investigation of the case was marked to Inspector R.M. Meena. On 27.12.2007, he alongwith Inspector K.L. Yadav and HC Darshan went to NOIDA and made inquiries from Manish Kakkar, owner of the bus. With him, they reached Bankelal Market, Badarpur and met Nawab Khan, Contractor of the said bus. Manish Kakkar and Nawab Khan were brought to Police Station and were arrested vide arrest memo Ex. PW10/C and Ex. PW10/E respectively. Their personal search memos were proved as Ex.PW10/D and Ex. PW10/F respectively. Their disclosure statements were proved as Ex. PW10/G and Ex. PW10/H respectively. He identified all the accused persons in the court. In his cross-examination for accused Nawab Khan, he admitted that office and residence of accused Nawab Khan was near Badarpur Police Station till 30.01.2008 - the period till which he remained posted at P.S. Badarpur. He admitted that the accident took place on 07.10.2007 and accused Anil was arrested on the same day while Nawab Khan was arrested on 27.12.2007. He could not tell, if any proceedings under Section 82 Cr.P.C were held against accused Nawab Khan or not. He could not tell, if SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 24/61 accused Nawab Khan has anything to do with the offending vehicle. He admitted that there was no document to show any link of Nawab Khan with the offending vehicle or with its owner or with its Driver. He admitted that no mechanical inspection of the bus was done in his presence.
8.2 PW-15 Ct. Sukhram stated that on 07.12.2007, DD No. 12A was received in akab by HC Mahesh through Ct. Man Mohan regarding a fatal accident at Bus Stand, Aali Morh, on Mathura Road from Ashram to Badarpur. He alongwith HC Mahesh reached at the spot and found 5-6 persons, who have already expired and another 5-6 persons in injured condition. PCR vans took the injured persons to the AIIMS Hospital. A blue line bus No. DL 1PB 8776 of route No. 460 was also there in damaged condition. One eyewitness, namely, Sanjay met them. HC Mahesh recorded his statement. Other police officials reached the spot and he alongwith HC Mahesh went to AIIMS Hospital where HC Mahesh obtained MLCs of 11 persons, out of which, 6 persons were declared 'brought dead'. Driver of the bus - Anil Kumar SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 25/61 was also admitted in the hospital in injured condition. HC Mahesh prepared Rukka on the statement of eyewitness Sanjay which this witness took to P.S for registration of FIR. After getting the case registered, he came back at the spot and handed over the copy of the FIR and original Rukka to Inspector R.M. Meena. The bus was seized by the IO vide memo Ex. PW15/A. One cycle, name pin of Driver Anil, blood stained chappals were seized vide separate seizure memos Ex. PW15/B, Ex. PW15/C and Ex.PW15/D respectively. Exhibits of the Driver Anil Kumar were also handed over by the witness to the IO, which he seized vide seizure memo Ex. PW15/E. He identified the accused Anil in the court. No question was asked from this witness in his cross- examination by the Counsel for accused Anil.
8.3 PW-16 Ct. Rakesh stated that on 09.10.2007, he alongwith IO/Inspector R.M. Meena went to AIIMS, Trauma Centre. The injured persons, Gulzari Lal, Phool Kumar, Phoolwati and Rangi Lal were declared fit to give statement by the Doctor. The IO recorded their statements. The IO also inquired about the SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 26/61 fitness of Driver Anil Kumar but the Doctor declared that he cannot go to the court. IO informed about the circumstances to the senior officers and thereafter, they both went to Patiala House Courts in the court of Sh. J.P. Nahar, Ld. M.M and briefed him about the situation. The Ld. Judge accompanied them to Trauma Centre and accused Anil Kumar was sent to Judicial Custody. The IO arrested him vide arrest memo Ex. PW16/A in the presence of eyewitness Sanjay. Driving Licence and Driving Badge of Anil were seized by the IO vide memo Ex. PW1/B. He identified accused Nawab Khan as accused Anil in court and when he was cross-examined by the Ld. Addl. PP on this point, he stated that on the day of arrest, face of accused Anil was fully bandaged and due to this reason, he could not identify accused Anil. He then identified accused Anil in the court.
8.4 PW-19 S.I. Mahesh Kumar is the Draftsman, who visited the place of incident on 16.11.2007 and proved the scaled site plan of the said spot as Ex. PW19/A. SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 27/61 8.5 PW-20 H.C. Dharamvir is the Duty Officer, who proved registration of FIR No. 713/07 under Section 279/337/304 IPC on 07.10.2007 at about 3:00 p.m as Ex. PW20/A. He proved his endorsement on the Rukka as Ex. PW20/B. 8.6 PW-21 Ct. Shankar Lal could not tell anything except that on 07.10.2007, he went to Apollo Hospital. On being cross-examined by the Ld. Addl. PP, he admitted that he took sealed pullanda and sample seal of deceased Indermani Sharma from the hospital and handed over the same to the IO vide Ex. PW21/A. 8.7 PW-22 H.C. Darshan Kumar Tyagi stated that on 27.12.2007, he alongwith HC Mahesh had gone to NOIDA to arrest Manish Kakkar; and to Bankey Market, Badarpur to arrest Nawab Khan. He proved the arrest memo of accused Manish Kakkar as Ex. PW10/C, his personal search memo as Ex. PW10/D and his disclosure statement as Ex. PW10/G. He also proved the arrest memo of accused Nawab Khan as Ex. PW10/E, his personal search memo as Ex. PW10/F and his disclosure statement as Ex. PW10/H. SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 28/61 In his cross-examination for accused Nawab Khan, he stated that Manish Kakkar was arrested first on the same day and they had gone to the house of Manish Kakkar between 1:00-1:30 p.m. After one hour, they reached the house of accused Nawab Khan to arrest him.
8.8 PW-24 Inspector K.L. Yadav stated that on 26.12.2007, investigation of this case was marked to him. He recorded the statements of the witnesses under Section 161 Cr.P.C on the same day. He stated that in the intervening night of 26/27.12.2007, he alongwith HC Mahesh and HC Darshan Lal went to Sector-39, NOIDA and arrested the owner of the bus Manish Kakkar vide Ex. PW10/C from House No. E-83, Sector-39, NOIDA. He proved his personal search memo and his disclosure statement as Ex. PW10/D and Ex. PW10/G respectively. He further stated that thereafter accused Nawab Khan - Contractor of the bus was arrested from his house at Bankey Lal Market, Badarpur vide Ex. PW10/E. He proved his personal search memo and his disclosure statement as Ex. PW10/F and Ex. PW10/H SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 29/61 respectively. In his cross-examination for accused Manish Kakkar and Anil, he stated that he had arrested Manish on the evidence of Upender Yadav and Nitesh that they had seen Manish and Nawab Khan tampering with the speed governor of the bus in question.
8.9 PW-26 is retired HC Shakti Chand. He stated that on 07.10.2007, he was posted as Head Constable in PCR. At about 9:45 a.m, he received a call from the Control Room regarding an accident at Village Aali Morh near Red-Light. He alongwith staff reached there and found 7-8 persons to be apparently dead and 10-12 persons as injured. Public was beating Driver Anil Kumar of Bus No. DL 1PB 8776 of route No. 460. The Driver was saved from the public, who had suffered injuries on his head and other parts of his body. Driver was taken to AIIMS Hospital with three injured persons.
8.10 PW-30 HC Satbir brought certified record of CPCR Forms for the period 01.07.2007 to 31.12.2007. He produced order dated 24.06.2011 of Additional DCP (GA) PCR, Delhi by which he SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 30/61 directed for destruction of records and proved this letter as Ex. PW30/A. He proved another order dated 27.06.2011 of Additional DCP (GA) PCR, Delhi by which he directed for destruction of records of PCR unit for the period 01.07.2007 to 31.12.2007 and proved this letter as Ex. PW30/B. He stated that on 23.09.2011, the records were destroyed and he proved the order dated 23.09.2011 as Ex. PW30/C. 8.11 PW-39 Inspector Rajmal Meena is the IO. He stated that on 07.10.2007, he received an information from the Duty Officer regarding fatal accident by a bus at Aali Morh, Mathura Road, in which 10-12 persons had been crushed. He alongwith the staff reached the spot at about 10:00 a.m. They saw 10-12 persons including male, female and children lying on the road. Some of them were injured and some had died. A blue-line bus No. DL 1PB 8776 of route No. 460 was also there in accidental condition. A huge crowd was present on the side of Driver of the said bus and the Driver was being beaten on the road. He saved the Driver from the public and sent him to the hospital in a PCR van. SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 31/61 He called for PCR vans at the spot. The injured persons were sent to the hospital. He clicked photographs from the spot from his mobile phone. 6 dead bodies of five ladies and a child were sent to hospital. Complainant Sanjay met them. His statement was recorded by HC Mahesh. He received copy of FIR alongwith original Rukka at the spot at about 4:00 p.m through Ct. Sukhram for further investigation. He alongwith Ct. Sukhram reached AIIMS, Casualty. All the injured persons were admitted in Casualty. Except injured Umesh, all others were unfit to give their statements. He recorded the statement of Umesh under Section 161 Cr.P.C. HC Mahesh handed over all the MLCs and other relevant documents. Complainant Sanjay was present in Casualty and he pointed out towards Driver Anil Kumar of the offending bus. He tried to record the statement of the Driver but he was declared unfit for statement by the Doctor. Doctor took blood sample of Anil which he seized vide seizure memo Ex. PW15/E. He came to know that one injured Phool Kumar was admitted in AIIMS, Trauma Centre. He went there, collected his MLC but he was unfit for statement. He alongwith Ct. Sukhram came back at SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 32/61 the spot where an eye witness Upender Singh met him. He recorded his statement under Section 161 Cr.P.C. At his instance, he prepared the site plan of the spot Ex. PW39/A. The spot was got clicked through digital camera which was brought by one Constable. The bus was seized vide memo Ex. PW15/A. One Hercules cycle of green colour (of which one tyre was under left rear tyre of the bus) was seized vide seizure memo Ex. PW15/B. Name pin of Driver Anil Kumar and broken pieces of windscreen of the bus were seized from the road vide Ex. PW15/C. Chappals, bags etc. lying at the spot were seized vide Ex. PW15/D. Case properties were deposited in the Malkhana. On all the four sides of the bus, 'Nawab Khan (N.K)' was printed. Next day at about 10:00 a.m, he reached AIIMS, Mortuary and recorded the identification statement of relatives of the deceased and after getting the postmortem conducted, the bodies were handed over. He got the offending bus mechanically inspected by T.U. Siddiqui. On 09.10.2007, he went to AIIMS, Trauma Centre and recorded the statements of Gulzari Lal, Phoolwati, Rangi Lal and Phool Kumar. Accused Anil was arrested in the hospital vide Ex. PW16/A on SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 33/61 being declared fit by the Doctor. From his personal search, he seized his Driving License and Badge vide Ex. PW1/B. As the Doctor had advised the accused not to move, he left Ct. Rakesh with the accused in the hospital and he himself went to Patiala House Courts and requested Sh. J.P. Nahar, Ld. M.M to conduct the proceedings in the hospital. The Ld. Judge went to the hospital and from there, accused Anil Kumar was sent to Judicial Custody. He called Police Escorts from Tihar Jail and handed over his custody to them as the accused was advised not to move. On 10.10.2007, he got the statement of Upender Singh recorded under Section 164 Cr.P.C at Patiala House Courts. He proved his application as Ex. PW39/B. He also collected the ownership proof of the offending bus No. DL 1PB 8776 from the Transport Authority, according to which, Manish Kakkar was its owner. He proved his notice under Section 91 Cr.P.C to the RTO in this regard as Ex. PW39/C. On the same day, he sent a notice under Section 133 of Motor Vehicle Act to Manish Kakkar but it could not be served as his house was found locked. On the same day, he got developed the photos of the scene of the accident. The photos SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 34/61 clicked from the mobile phone were mark 'PW39/P-1 to PW39/P-5'. The photographs clicked from the digital camera were proved as Ex. PW39/X-1 to Ex.PW39/X-17 and their negatives were proved as Ex. PW39/X-18 to Ex.PW39/X-34. He further stated that on 12.10.2007, he made an application to Transport Authority, Burari for obtaining the mechanical inspection report of the bus vide letter Ex. PW39/D. He recorded the statement of Anil Chikara - MLO and Rakesh Vaid - PLTI, who had conducted the mechanical inspection of the bus. On 15.10.2007, he collected the exhibits from the AIIMS Hospital and deposited them with FSL, Rohini. On the same day, he alongwith Ct. Rakesh went to Mohan Baba Nagar, Badarpur and recorded the statement of injured Radhey Shyam Verma under Section 161 Cr.P.C. On 17.10.2007, he collected result on MLCs from the hospital and added Section 338 IPC in the charge-sheet. On 19.10.2007, he collected FSL report. On 16.11.2007, he took SI Mahesh Kumar to the spot for taking notes and measurements of the place of accident. He collected the scaled site plan from SI Mahesh on 20.11.2007. On 26.12.2007, he gave a notice under Section 133 of M.V. Act to SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 35/61 Manish Kakkar. Manish Kakkar appeared in the Police Station and gave a reply that on 07.10.2007, the offending bus was driven by accused Anil Kumar. He handed over the case file to Inspector K.L. Yadav. He identified the Driving License, Driver Badge and name pin of the Driver in court as Ex. PW39/B1 to Ex. PW39/B3 respectively. Identity of cycle and bus was not disputed by the Defence Counsel and the photographs of the bus were marked as mark 'PW39/P1 and P2'. In his cross-examination for accused Anil and Manish, he admitted that at the time of incident, accused Anil Kumar had a valid Driving License and that as per FSL result, he was not under influence of alcohol at the time when he was driving the offending bus on the day of the incident. He denied the suggestion that accused Anil and Manish had not tampered with the speed governor of the offending bus. He stated that he had noticed skid marks of the tyres of the offending bus on the road which made it clear that the accused was driving the bus in rash and negligent manner and had applied brakes suddenly. He admitted that he did not place any photograph on record in this regard. He denied the suggestion that accused Anil was not driving the bus at a SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 36/61 very high speed or high speed.
9. All the incriminating circumstances were put to all the accused persons and their statements were recorded under Section 313 Cr.P.C. Accused Anil Kumar stated that he had a problem in his head on 06.10.2007 due to which he suffered a fit. He took treatment on 06.10.2007 in Apollo Hospital and had to undergo an MRI on 07.10.2007 at Green Park. He was given the bus for being driven on 07.10.2007. At the time of driving, he lost control on his head due to which the accident was caused. He stated that he was driving at a speed of 20-30 k.m per hour. He denied all other circumstances. Accused Manish Kakkar (owner of the bus) in his examination under Section 313 Cr.P.C stated that the speed governor installed in the offending bus is of Activa company and is tamper proof and he used to get the said speed governor regularly tested from the concerned authority. He stated that the mechanical inspection report was manipulated against him and he being the owner of the bus was falsely implicated in this case. Nawab Khan (Contractor of the said bus), in his examination under Section 313 SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 37/61 Cr.P.C, stated that he was neither the Contractor nor owner nor driver of the offending bus and has nothing to do with the present case and was falsely implicated. He, however, stated that co- accused Anil Kumar used to drive his bus bearing No. DL 1PA 5639 in the year 2000 and he drove that bus for about 1-2 years and thereafter, he sold that bus to one Ajay. Accused Anil Kumar and accused Manish Kakkar sought to lead defence evidence. However, no defence evidence was produced on behalf of accused Manish Kakkar, although, two witnesses were produced on behalf of accused Anil Kumar as under:-
9.1 DW-1 Dr. Shelja Kundra is Medical Officer (In-
charge) of Jail No.4, Tihar. She stated that accused Anil Kumar was lodged in Tihar Jail on 10.10.2007 and he was on anti-epileptic medication throughout his stay in jail and he was released on 07.08.2010. She also stated that there was no medical record of AIIMS Hospital for any period prior to 10.10.2007 when he was lodged in Tihar Jail. She proved the medical records of Tihar Jail as Ex. DW1/A. SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 38/61 9.2 DW-2 Dr. Vinit Suri of Apollo Hospital stated that accused Anil took treatment from Neurology Department of Apollo Hospital on 09.04.2003, 16.05.2003, 05.06.2003, 03.06.2005 and on 19.01.2007. He was suffering from fits of epilepsy since 1998. He stated that the accused used to have seizures of small duration (of 1 or 2 minutes) once or twice a month and had no history of seizure of longer durations since 2003. He proved the records of Apollo Hospital as mark DW-2/A.
10. Sh. Tarun Nanda, Advocate filed his written arguments for accused Anil Kumar and Manish Kakkar. He argued that it is not disputed by him that accused Anil Kumar was driving the bus in question on the relevant date and time and the same was also admitted by him when his SA was recorded u/s 313 of Cr.PC. For accused Anil Kumar, he stated that accused Anil Kumar suffered an epileptic fit when he was driving the bus, due to which, he lost control over the bus, which resulted in some casualties. He relied upon the depositions of defence witnesses, namely, DW-1 Dr. Shailja Kundra from Tihar Jail and DW-2 Dr. Vinit Suri from SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 39/61 Apollo Hospital, to show that accused Anil Kumar was an epileptic patient. Ld. Counsel argued that there is no material on record to prove that the bus in question was being driven at a high speed or in a dangerous manner, so as to prove the offence u/s 184 of the Motor Vehicle Act. It has been stated that the prosecution did not bring on record as to what was the maximum permissible speed for the buses as per Rules. He stated that there is no scientific investigation to establish as to what was the speed of the bus at the time of the accident. The skid marks have not been shown in the scaled site plan (Ex. PW19/A). It has been stated that there are contradictions in the depositions of the witnesses regarding the manner in which the accident is stated to have taken place. He argued that the prosecution has not brought on record any material to attribute knowledge to accused Anil Kumar as required u/s 304 Part-II of IPC. It was argued that the acts of accused Anil Kumar attract the provisions of Section 304A of IPC for which, he may be convicted.
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11. For accused Manish Kakkar, he argued that the prosecution has failed to prove beyond reasonable doubt that accused Manish Kakkar tampered with the 'speed governor' of the offending bus. He also stated that even qua the offences u/s 188 r/w 184 of the Motor Vehicle Act, the prosecution has failed to bring any evidence on record. It is stated in the written arguments and was also verbally argued that accused Anil Kumar may be convicted for the offence u/s 304A of IPC and accused Manish Kakkar be acquitted.
12. For accused Nawab Khan, Sh. Shashi Shanker, Advocate argued that according to prosecution, accused Nawab Khan is the Contractor for running the said bus. It has been stated that none of the IO made any deposition against him. It has been stated that there is no evidence on record, to show that accused Nawab Khan was the Contractor or he had any kind of association with the other co-accused persons. It is stated that the accused Nawab Khan was residing near the Police Station- Badarpur and was arrested much after the incident and there is no evidence on SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 41/61 record that the accused had absconded and this conduct of the accused shows that he has been falsely implicated in the present case. Acquittal has therefore been prayed for the accused Nawab Khan.
13. Ld. Addl. PP, on the other hand, has prayed for conviction of all the accused persons. It has been stated that there are as many as nine persons who died and other nine persons who sustained injuries in the incident, which took place on 07.10.2007 between 9.35 to 9.45 AM. It has been stated that there are many eyewitnesses, who have supported the prosecution case. Regarding the defence of sustaining fit by the accused Anil Kumar, it has been stated that the said defence is sham and is an afterthought, which becomes clear from the fact that no such suggestion was put to any eyewitness during their cross-examination. Regarding tampering of the 'speed governor' of the bus, he relied upon the deposition of PW-18 Taslimuddin Siddiqui, wherein, he stated that the 'speed governor' of the bus had been deliberately earthed so that the bus could run at a faster speed and this can be done only by owner SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 42/61 Manish Kakkar and Contractor Nawab Khan for greed of money.
14. I have heard both the sides and have perused the records of the case.
15. Accused Anil Kumar (Driver), who was driving the offending bus at the time of the incident, has faced this trial under Section 304 Part-II IPC for having caused the death of Taufiq, Babli, Sarna, Beena, Fatuman, Sitara and Indermani Sharma. There are two other unidentified deceased persons. He has also faced this trial under Section 308, 323 and 325 IPC for causing simple/grievous injury to Phool Kumar Sharma, Gulzari Lal, Ramji Lal, Chetan, Radhey Shyam, Phoolwati, Umesh, Damman and Neha. He was also charged under Section 184 of Motor Vehicles Act, for dangerously driving the bus in question.
16. Accused Manish Kakkar (owner of the bus) and accused Nawab Khan (Contractor of the bus) have faced this trial for having committed the offences under Section 198 and Section 188 read with Section 184 of the Motor Vehicles Act. Section 198 SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 43/61 of M.V. Act deals with unauthorized tampering with the brake or any part of mechanism of a motor vehicle. Section 188 of M.V. Act deals with the abetting the offence under Section 184 of M.V. Act i.e dangerous driving.
Anil Kumar
17. Driving of the bus in question by accused Anil Kumar on the date, time and place has not been disputed. It is also not disputed that nine persons lost their lives and other nine persons sustained 'simple'/ 'grievous' injuries. It has been orally argued on behalf of accused Anil Kumar and was also stated in the written arguments filed on his behalf, that he suffered a fit while he was driving the bus on the date of the incident, due to which he lost control over the bus which resulted in the accident. This stand was also taken by the accused in his statement which was recorded under Section 313 Cr.P.C. In order to prove this defence, two Doctors were produced as defence witnesses, namely, DW-1 Dr. Shelja Kundra of Tihar Jail and DW-2 Dr. Vinit Suri of Apollo Hospital. DW-1 Dr. Shelja Kundra is a witness for the treatment of SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 44/61 the accused in Tihar Jail from 10.10.2007 onwards; whereas DW-2 Dr. Vinit Suri is a witness for the treatment of the accused Anil Kumar upto 19.01.2007. The incident in question took place on 07.10.2007. However, none of these witnesses stated anything that the accused had suffered any epileptic fit on the date and time of the incident. Not only this, no such suggestion was put to any eyewitness in their cross-examination, which shows the hollowness of the claim. None of the eyewitness stated that accused Anil Kumar sustained any 'fit' while driving the bus in question at the relevant time on 07.10.2007. It is, therefore, held that accused Anil Kumar did not suffer any epileptic fit on 07.10.2007 at the relevant time when he was driving the bus in question.
18. Ld. Counsel for the accused Anil Kumar stated that the accused may be convicted for the offence under Section 304A IPC. Such a concession has also been made in the written arguments filed on behalf of accused Anil Kumar. In other words, the driving of bus by accused Anil Kumar on 07.10.2007 at the relevant time which resulted in instant deaths of 9 persons and causing of SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 45/61 grievous as well as simple injuries to other persons, is not disputed. By conceding conviction under Section 304A IPC, it has also not been disputed that the accused was, at least, 'rash and negligent' in driving the offending bus at the relevant time. A perusal of the statements of eyewitness, namely, PW-1 Sanjay, PW-2 Phoolwati, PW-3 Gulzari Lal, PW-4 Rangi Lal, PW-6 Radhey Shyam, PW-25 Upender Singh, PW-27 Umesh and PW-33 Phool Kumar, leave no doubt that the accused Anil Kumar drove the offending bus by overtaking another bus from left side, which was ahead of him, and thereby he ran over public persons which resulted in various fatalities and caused grievous as well as simple injuries to various persons. The MLCs of the deceased persons and of the injured persons have been proved as Ex. PW5/A (Rangi Lal - simple injury), Ex. PW5/B (Chetan - simple injury), Ex. PW5/C (unknown - brought dead), Ex. PW5/D (Smt. Satana - brought dead), Ex. PW7/A (Gulzari Lal - grievous injury), Ex. PW7/B (Smt. Fatuman - brought dead), Ex. PW9/A (Damman - grievous injury), Ex. PW9/B (baby Neha - simple injury), Ex.PW14/A (Smt. Sitra - brought dead), Ex. PW23/A (Phool Kumar Sharma - SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 46/61 simple injury), Ex. PW29/A (Radhey Shyam Verma - simple injury), Ex. PW29/B (Smt. Phoolwati - simple injury), Ex. PW29/C (Smt. Babli W/o Sharif - brought dead), Ex. PW35/A (Umesh -simple injury), Ex. PW36/A (unknown male - brought dead) and PW36/B (Radhey Shyam). Similarly, the postmortem reports of the deceased persons were proved as PW37/A (Taufiq), PW37/B (Indermani), PW37/C (Fatuman), PW37/D (Sitra), PW38/A (Beena), PW38/B (Babli) and PW38/C (Smt. Satana).
19. The above noted MLCs and Postmortem Reports show that there were at least 9 persons, who lost their lives and there were another 9 persons, who suffered injuries in the said incident, out of which, 2 persons suffered grievous injuries. All these persons were victims of Road Traffic Accident, as per their MLCs. Section 323 IPC provides punishment for voluntarily causing hurt whereas Section 325 IPC provides punishment for voluntarily causing grievous hurt. Since neither the driving of the bus by the accused at the relevant time in rash and negligent manner has been disputed nor the sufferance of grievous and simple injuries by total SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 47/61 9 persons, coupled with the depositions of the independent public witnesses, who were injured persons as well as eyewitness, the accused Anil Kumar is guilty of having committed the offences under Section 323, 325 IPC and Section 184 of the Motor Vehicles Act. The accused Anil Kumar is, therefore, convicted for having committed the offences under Section 323 and 325 of Indian Penal Code and Section 184 of the Motor Vehicles Act.
20. The question which now remains for consideration is as to whether the act of the accused Anil Kumar in causing death of 9 persons, would be covered by Section 304 Part-II of IPC or Section 304A IPC. Ld. Counsel for accused Anil Kumar stated that the accused may be convicted for the offence under Section 304A IPC and not for the offence under Section 304 Part II IPC as according to him, there was nothing on record which could show that the accused Anil Kumar had the necessary 'knowledge' required by Section 304 IPC. Reliance has been placed on the judgment of Prabhakaran vs. State of Kerala, AIR 2007 S.C 2376 in this regard by him, in which a bus Driver ran over a ten year old SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 48/61 school boy in the middle of the road and his conviction under Section 304 Part II IPC was converted by the Hon'ble Supreme Court to one under Section 304A IPC. Ld. Counsel argued that facts of the case of Prabhakaran are at par with the facts of the present case.
21. Section 304 of IPC provides that whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment of life or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death. The next para of Section 304 IPC (generally referred to as 'Part II') provides for imprisonment of either description for a term which may extend to ten years or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death.
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22. Section 304A IPC provides that whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.
23. It is no more res integra that Section 304 IPC refers to culpable homicide as covered by the last limb of Section 299 IPC (which deals with the knowledge that he is likely by such act to cause death) and is not to be confused with the five exceptions mentioned in Section 300 IPC (AIR 1972 S.C 855).
24. Facts of the present case as unfolded during trial are that accused Anil Kumar was driving Blue-line bus in question on 07.10.2007 in the morning hours at about 9:35 a.m and when he reached at Aali Morh, Mathura Road, Badarpur, he crushed 9 persons to instant death. Driving of the bus by the accused at the relevant date and time and instant death of 9 persons has not been disputed by the accused. The only defence which has been raised SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 50/61 is that the accused had a epileptic fit at that time, due to which, he lost control over the bus which resulted in the incident. The said defence has already been found to be sham as no such suggestion was given to any eyewitness mainly PW-25 Upender, who was travelling in the same bus. FSL result Ex.PW-17/A clarifies that the accused Anil Kumar was not under influence of liquor at that time. Mechanical Inspection Report Ex. PW18/A shows that the brakes and parking brakes of the vehicle were O.K. The Inspection Report Ex. PW12/A of the MLO of the Transport Department also show that the service brakes and parking brake of the bus were functioning properly. Even no such defence has been raised on behalf of the accused that he was drunk or that the brakes of the bus were not functioning properly. The injured witnesses have stated that they were waiting on the pavement when the ill-fated bus hit public persons. In such a situation when the accused Driver Anil Kumar was not under any influence of liquor at the time of the incident nor he had suffered any epileptic fit at that time and that he crushed 9 persons, can his act be called an act covered by Section 304 Part II IPC or it would be only a rash and negligent act SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 51/61 covered by Section 304A IPC?
25. Almost similar were the facts of Alister Anthony Parrera vs. State of Maharashtra, 2012 (2) SCC 648, wherein the accused ran his car into pavement and killed 7 persons, who were sleeping on the pavement, and injured 8 others. Although, he was drunk, but taking into consideration the circumstance that he knew that people sleep on pavement in Mumbai and he was also a resident of that very area, he was convicted under Section 304 Part II IPC and his appeal against the said conviction and for converting it to Section 304A IPC, was dismissed by the Hon'ble Supreme Court holding as under:
"39. .............Knowledge is awareness on the part of the person concerned of the consequences of his act of omission or commission indicating his state of mind. There may be knowledge of likely consequences without any intention. Criminal culpability is determined by referring to what a person with reasonable prudence would have known.
40. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 52/61 category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law - in view of the provisions of the IPC - the cases which fall within last clause of Section 299 but not within clause 'fourthly' of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC.
41. A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II IPC."
26. In Prabhakaran's case (Supra) which has been relied upon by the Ld. Counsel for accused Anil Kumar, it came on record that the passengers in the bus were alarmed of the enormous speed of the bus being driven by the accused and had cautioned him to stop as they had seen the school children crossing the road SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 53/61 in a queue. Even the children themselves had raised both hands for stopping the vehicle. Inspite of all these, the bus fatally ran over a student and could be stopped only 15-20 feet ahead of the spot of occurrence. The Hon'ble Supreme Court took into consideration these extenuating circumstances and held the absence of knowledge that the accused was likely to cause death by his act and found it to be a purely rash and negligent act and thereby altered the conviction of the accused from Section 304 Part II IPC to 304A IPC. Those findings were recorded by the Hon'ble Supreme Court in the peculiar facts and circumstances of the said case. However, there is no preposition of law that whenever a driver of a motor vehicle causes death, he can be convicted only under Section 304A IPC and not under Section 302 or 304 IPC. Prabhakaran's case (Supra) was also cited before the Hon'ble Supreme Court in Alistor Parrera's case (Supra) and the Hon'ble Supreme Court made following observations in this regard:
"............Prabhakaran does not say in absolute terms that in no case of an automobile accident that results in death of a person due to rash and negligent act of the driver, the conviction can be maintained for the offence under Section SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 54/61 304 Part II IPC even if such act (rash or negligent) was done with the knowledge that by such act of his, death was likely to be caused. Prabhakaran turned on its own facts. Each case obviously has to be decided on its own facts. In a case where negligence or rashness is the cause of death and nothing more, Section 304A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II IPC may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrong doer to cause death, offence may be punishable under Section 302 IPC."
27. Since the facts of Prabhakaran's case are different from the facts of the present case, the said case becomes distinguishable and does not apply to the facts of the present case.
28. When the accused did not suffer any epileptic fit nor he was under influence of liquor nor the brakes of the bus malfunctioned, the accused cannot simply say that his act was only 'rash and negligent' and nothing more than that. The deceased persons and the injured did not come in front of his bus suddenly so as not to give enough reflex time to the accused/Driver to apply brakes. It is a case, in which as many as 9 lives were taken by the SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 55/61 accused from his act. He even crushed a bicycle under the tyres of his bus. He caused injury to 9 persons. The evidence and materials on record prove beyond reasonable doubt that the accused Anil Kumar can be attributed with knowledge that his act of driving the bus was dangerous enough and he knew that one result would very likely be that the people, who were on the pavement may be hit and that may result in their death. There is a presumption that a man knows the natural and likely consequences of his acts. Moreover, an act does not become involuntary act simply because its consequences were unforeseen. The cases of negligence or of rashness or dangerous driving do not eliminate the act being voluntary. The accused Anil Kumar could be attributed to have a specific knowledge of the event that took place on that day. He had the knowledge and such knowledge would be attributable to him that his actions were dangerous enough to cause injuries to public persons which may even result into death of those public persons. There were as many as 9 instant deaths which were caused solely due to the act of driving the bus in such a manner by the accused. In the present case, the essential ingredients of SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 56/61 Section 304 Part II IPC have been successfully established by the prosecution against the accused Anil Kumar and he is, therefore, convicted for the offence under Section 304 Part II IPC. Manish Kakkar and Nawab Khan
29. It was argued that the prosecution has not been able to prove beyond all reasonable doubts that accused Manish Kakkar had tampered with the speed governor of the offending bus as witnesses Upender Yadav and Nitesh were not examined by the prosecution, although, PW-24 Inspector K.L. Yadav had stated that these two witnesses had seen Manish Kakkar and Nawab Khan meddling with the speed governor. It was also argued that prosecution has not brought any positive evidence on record to prove that accused Manish Kakkar instigated accused Anil to drive the offending bus fast so as to generate more revenue.
30. So far as accused Manish Kakkar is concerned, it has not been disputed that he is the owner of the bus in question i.e. No. DL 1 PB 8776 which was plying as a Blue-line Bus on route SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 57/61 No. 460 on 07.10.2007. The deposition of PW-18 Taslimuddin Siddiqui shows that the speed governor wiring of the bus was deliberately earthed, as per his report Ex. PW18/A, due to which it was not functioning and the effect of such deliberate earthing of the speed governor would be that the speed of the bus would not be controlled and it will be able to run at a faster speed. PW-12 Anil Chikara, MLA of Transport Department, who had inspected the offending bus, had stated in his report Ex. PW12/A that the seals of speed sensor was missing. He further stated that upon checking the electronic speed governor, it was found that the sensor pulse wire was by-passed and earthed at dash board with a shunt, which was electronically tampered. He also stated that by earthing, the pulse wire the ECU of Electronic Speed Governor does not get any speed signal and become dis-functional, resulting to accelerate the vehicle to its natural speed. In the conclusion, he had concluded that the Electronic Speed Governor of the above bus was found to be tampered electronically. Accused Manish Kakkar stated in his statement under Section 313 Cr.P.C that he used to get the speed governor regularly tested from the concerned authority. However, SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 58/61 no such evidence has been brought on record and proved by him. So far as accused Nawab Khan is concerned, the words 'Nawab Khan' were found painted on the bus. One photograph Ex. PWX-9 shows that the said word 'Nawab Khan' was painted on the bus in question. A sham defence has been raised on behalf of accused Nawab Khan that he had nothing to do with the present case and he is not the Contractor of the said bus. The very fact that the word 'Nawab Khan' was painted on the bus in question, shows that the defence raised by the accused Nawab Khan is baseless. Accused Nawab Khan had admitted in his examination under Section 313 Cr.P.C that Anil Kumar used to drive his another bus in the year 2000 which he drove for about 2 years and thereafter he sold the bus to one Ajay. It thus becomes clear that accused Nawab Khan is into the business of buses and he also knew accused Anil Kumar, who used to drive his bus in the year 2000. His claim that he has nothing to do with Anil Kumar or Manish Kakkar, is thus highly doubtful and cannot be accepted. As noted previously, these accused persons have been charged under Section 198 of Motor Vehicles Act (for tampering with the mechanical system of a motor SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 59/61 vehicle) and Section 188 read with Section 184 of Motor Vehicles Act (for abetment of the offence of dangerous driving by co- accused Anil Kumar). Admittedly, accused Manish Kakkar is the owner of the said bus and the painted words 'Nawab Khan' on the bus show that accused Nawab Khan also had some interest in the said bus. By tampering with the speed governor of the bus in question, it would not be the Driver, who would be benefited in any manner, but it would only be the owner and Contractor of the said bus as the bus would be able to run faster and thereby would be able to perform more rounds of its route, thereby in turn, generating more money by way of fare collection. The electronic speed governor of the bus in question has already been found to be deliberately tampered with, which had the effect that the bus could run faster. In the process of tampering with the speed governor of the bus in question, they abetted co-accused/ Driver Anil Kumar to run the bus faster thereby abetting him to drive dangerously. As such, both the accused persons, namely, Manish Kakkar and Nawab Khan are liable to be convicted under Section 198 of the Motor Vehicles Act. Both of them are also liable to be SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 60/61 convicted for the offence under Section 188 read with Section 184 of Motor Vehicles Act. Thus, both the accused persons, namely, Manish Kakkar and Nawab Khan are accordingly convicted.
31. In the net result, accused Anil Kumar is convicted for the offences punishable under Section 304 Part II, 323, 325 IPC and 184 of Motor Vehicles Act. Accused Manish Kakakar and Nawab Khan are convicted for the offences punishable under Section 198 and Section 188 read with Section 184 of Motor Vehicles Act.
Announced in the open Court. (Rajeev Bansal)
Dated:17.12.2014 ASJ-3/South District
Saket Courts, New Delhi
SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 61/61
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI
SC No. 138/10
(Unique ID No. 02403R0010582008)
FIR No.: 713/07
U/S: 184/198/188 of the Motor Vehicle Act
and Sections 308/323/325/304 Part-II of IPC
PS: Badarpur
State
Versus
(1) Anil Kumar
S/o Inder Dutt
R/o: B-144, Hari Nagar Ashram,
Near Malik Dharam Kanta,
New Friends Colony, New Delhi.
(2) Manish Kakkar
S/o Suraj Parkash Kakkar
R/o: F-43, Sector-51, NOIDA
(3) Nawab Khan
S/o Bundu Khan
R/o:870, Bankey Lal Market,
Badarpur, New Delhi.
ORDER ON SENTENCE
SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 62/61
1. Sh. Joginder Tulli, Ld. Counsel for convicts Anil Kumar and Manish Kakkar has argued that accused persons are first time offenders and have families to support. It has been stated that convict Anil has already suffered custody during the course of trial for a period of 2 years and 10 months. Accused Manish Kakkar also remained in custody for one day at the time of investigation. He has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Alister Anthony Pareira vs. State of Maharashtra AIR 2012 SC 3802 and State vs. Sanjeev Nanda 2012 (7) Scale 120 and has argued that a lenient view may be taken against the convicts. He has stated that even in these cases, the courts have imposed the substantive sentence of three years in Alister Anthony Pareira's case and two years in the case of Sanjeev Nanda. For the other convict Nawab Khan, Sh. S.K. Chaudhary argued that the convict is also a first time offender and the only bread earner in his family and has minor school going children to support and hence, a lenient view may be taken against him also.
2. On the other hand, the Ld. Addl. PP has argued that the convicts be given befitting punishment. Ld. Addl. PP has further stated that in the cases of Alister Anthony Pareira and Sanjeev Nanda, the convicts were driving their cars being owners of the cars whereas in the present case, the vehicle being driven was a commercial vehicle - bus and hence no parity can be drawn. SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 63/61
3. Heard both the sides and records have been perused.
4. Accused Anil Kumar has been convicted for the offences punishable under Section 304 Part II, 323, 325 IPC and 184 of Motor Vehicles Act.
5. Accused Manish Kakakar and Nawab Khan have been convicted for the offences punishable under Section 198 and Section 188 read with Section 184 of Motor Vehicles Act.
6. Section 304 Part II IPC provides for a punishment of imprisonment for a term which may extend upto 10 years or to fine or both. Section 323 IPC provides for a punishment of sentence upto 1 year or fine upto Rs. 1,000/- or both. Section 325 IPC provides for a punishment of sentence upto 7 years and fine. The offence under Section 184 and 188 of the Motor Vehicles Act is punishable with imprisonment for a term upto 6 months or fine upto Rs. 1,000/-. Section 198 of Motor Vehicles Act provides for punishment of fine upto Rs. 1,000/-.
7. In Shailesh Jaswantbhai vs. State of Gujarat 2006 (2) SCC 359, it was held that undue sympathy to impose inadequate sentence would do more harm to the justice system. It is the duty of every court to award proper sentence having regard to the nature SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 64/61 of offence and the manner of its commission. In Ahmad Hussain Vali Mohd. Saiyed vs. State of Gujarat 2009 (7) SCC 254 and Jameel vs. State of U.P. 2010 (12) SCC 532, it was held that justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. Similarly, in Guru Basvaraj vs. State of Karnataka 2012 (8) SCC 734, it was held that it is the duty of the court to see that appropriate sentence is imposed, regard being had to the commission of the crime and its impact on social order. The cry of the collective for justice, which includes adequate punishment, cannot be lightly ignored. In Gopal Singh vs. State of Uttarakhand 2013 (3) SCC 444, it was held that just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously, the principle of proportionality between the crime and the punishment, cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of criminal offence.
8. In the present case, the convict Anil Kumar was driving the ill-fated bus and caused death of 9 persons. He also caused 'grievous injuries' to two persons and 'simple injuries' to seven persons. Convict Manish Kakkar is the owner of the bus while convict Nawab Khan is contractor of the said bus. So far as the circumstance of being the only bread earner or having a family to support is concerned, the same is not a special circumstance as the SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 65/61 same circumstance is generally with all the persons. So far as the reliance placed on the judgment of Alister Anthony Pareira and Sanjeev Nanda is concerned, a perusal of those judgments show that huge amounts of compensation were also paid by the said convicts to the families of the victims, which is not possible to be paid by the convicts in this case as it has been argued that none of them is in a position to pay any substantial compensation to the families of the victims. This circumstance in itself distinguishes the present case from the cases cited by the Ld. Counsel. Taking into consideration the nature of offence and the extent of punishment provided in law and the circumstance that the convicts are first time offenders, I deem it appropriate to pass the following sentence against each convict:-
8.1 Anil Kumar is sentenced to undergo R.I of 7 years and fine of Rs. 7,000/- for the offence under Section 304 IPC and in default of payment of fine, the convict shall suffer further simple imprisonment for a period of 1 year. For the offence under Section 323 IPC, the convict is sentenced to undergo RI for a period of 1 year and fine of Rs. 7,000/- and in default of payment of fine, the convict shall suffer further simple imprisonment for a period of 3 months. For the offence under Section 325 IPC, the convict is sentenced to undergo RI for a period of 5 years and fine of Rs.
5,000/- and in default of payment of fine, the convict shall suffer further simple imprisonment for a period of 1 year. For the offence SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 66/61 under Section 184 of M.V. Act, the convict is sentenced to undergo SI for a period of 6 months.
8.2 Manish Kakkar is sentenced to undergo S.I of two months for the offence under Section 188 of Motor Vehicles Act. For the offence under Section 198 of M.V. Act, convict shall pay a fine of Rs. 1,000/- and in default of payment of fine, the convict shall suffer further simple imprisonment for a period of one week. 8.3 Nawab Khan is sentenced to undergo S.I of two months for the offence under Section 188 of Motor Vehicles Act. For the offence under Section 198 of M.V. Act, convict shall pay a fine of Rs. 1,000/- and in default of payment of fine, the convict shall suffer further simple imprisonment for a period of one week.
9. All the sentences shall run concurrently. The convicts shall be entitled to the benefit of Section 428 Cr.P.C.
10. Fine of Rs. 1,000/- each on behalf of convicts Manish Kakkar and Nawab Khan has been deposited. Fine qua convict Anil Kumar has not been deposited.
11. At this stage, an application under Section 389(3) Cr.P.C has been filed on behalf of convicts Manish Kakkar and Nawab Khan for bail as they wish to file an appeal against this order. Since the convicts have been sentenced to undergo SI for a period of two SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 67/61 months each and they were on bail during the trial, they are admitted to bail on their furnishing a PB in the sum of Rs. 10,000/- each with one surety in the like amount.
12. Bail Bonds furnished and accepted.
13. A copy of the Judgment and 'Order on Sentence' be provided to all the convicts free of cost.
14. File be consigned to Record Room.
Announced in the open court. (Rajeev Bansal)
Dated: 20.12.2014 ASJ-3/South District
Saket Courts, New Delhi
SC No. 138/10 : FIR No. 713/07 : 'State v. Anil Kumar & Others' 68/61