Delhi District Court
Journal 2175 Titled As Jankidas vs State (Delhi High CourtDb). It on 17 February, 2011
(P/1)
FIR NO. 181/1996
u/s 279/337/338/304 A IPC.
P.S. IGI Airport
IN THE COURT OF SH RAJESH KUMAR GOEL
ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE -02 , DWARKA
COURTS : NEW DELHI
FIR NO. 181/1996
u/s 279/337/338/304 A IPC.
P.S. IGI Airport
Date of institution : 30.8.1996
Date of final argument : 04.2.2011
Date of final order : 17.2.2011
JUDGMENT:
A SL NO. OF THE CASE : 02405RO438762009
B: DATE OF OFFENCE : 25.4.1996
C: NAME OF THE : Gul Mohd
COMPLAINANT
D: NAME OF THE : Hind Kumar
ACCUSED s/o Ranjeet Rai r/o 29/55 , West Patel
Nagar, New Delhi.
E: OFFENCE : U/S 279/337/338/304 A IPC .
COMPLAINED OFF
F: PLEA OF ACCUSED : PLEADED NOT
GUILTY
G: FINAL ORDER : Convicted
s/v Hind Kumar ( page no. 1 of 18 )
(P/2)
FIR NO. 181/1996
u/s 279/337/338/304 A IPC.
P.S. IGI Airport
H: DATE OF SUCH : 17.2.2011
ORDER
BRIEF REASONS FOR DECISION:
1. Accused is facing trial on the allegations of the prosecution that on 25.4.1996 at about 4:00 pm at Kakrola pull, main Najafgarh, Uttam Nagar road within the jurisdiction of P.S Najafgarh , he was found driving a jeep bearing no. DL 4 CA 8417 in a rash and negligent manner so as to endanger human life and public safety of others and while driving the said vehicle in the above said manner he caused an accident due to which one Gul Mohd and Noor Mohd received simple injuries , one Mariam and Raja sustained grievous injury and one Ram Gulam expired.
2. After investigation the challan was filed. Prima facie case U/s 279/337/338/304 A IPC made out against the accused. After compliance of section 207 Cr.P.C , notice u/s 251 CrPC was served upon the accused , accordingly by the Ld. Predecessor of this Court to which he pleaded not guilty and claimed to be tried.
s/v Hind Kumar ( page no. 2 of 18 )
(P/3)
FIR NO. 181/1996
u/s 279/337/338/304 A IPC.
P.S. IGI Airport
3. In support of its case the prosecution has examined nine witnesses.
4. PW1 Dr. Komal Suri conducted the postmortem on the body of the deceased Ram Gulam and gave report vide ExPW1/A . PW2 Dr. Amitabh Bhasin proved the X ray plate of injured Mariam as ExPW2/A and of injured Noor Mohd as PW2/B . PW6 Dr. Hoshiyar Singh examined the patient Mariyam and Gul Mohd and prepared MLC ExPW6/A and PW6/B respectively.
5. PW3 Retd Insp. Narain Singh mechanically inspected the offending vehicle and gave report ExPW3/A. PW4 Sh Gul Mohd is the eye witness to the accident. PW 5 H.C Harbir Singh is the duty officer who proved the registration of FIR vide ExPW5/A. PW7 Ct. Onkar Singh is the witness who accompanied the IO during investigation. PW8 S.I Anand Swaroop is formal witness. PW9 Insp. Udham Singh is the IO who carried out the investigation.
s/v Hind Kumar ( page no. 3 of 18 )
(P/4)
FIR NO. 181/1996
u/s 279/337/338/304 A IPC.
P.S. IGI Airport
6. Thereafter prosecution evidence was closed and statement of accused u/s 313 Cr.PC was recorded wherein accused denied the allegations made against him . However , accused did not opt to lead any evidence in his defence.
7. I have perused the record and heard the Ld. APP for State and the ld counsel for the accused .
8. For the offence u/s 279/337/338/304 A IPC the following ingredients are required to be proved:
i) Driving of a vehicle , or riding on a public way.
ii) Such driving or riding must be so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person.
iii) Through that act of rash and negligent , simple injury or grievous injuries or death should have been taken place.
9. During the statement u/s 313 CrPC , accused termed it to be correct that on 25.4.1996 at about 4:00 pm at Kakrola pull, main Najafgarh, Uttam Nagar road, he was driving the offending vehicle no. DL 4 C A 8417 but he replied that there were pits on the pull due to s/v Hind Kumar ( page no. 4 of 18 ) (P/5) FIR NO. 181/1996 u/s 279/337/338/304 A IPC.
P.S. IGI Airport which Kamani of his vehicle broke down and he could not control the vehicle . He further replied that he does not know if some person sustained injuries and one person expired. He further replied that the person , who expired, had not expired due to the accident but because of the fact that he jumped into the "Nala" and some stone might have caused the injury on his person. This all shows that , accused is not disputing that he was driving the vehicle and accident took place .
10. But surprisingly during the argument , ld counsel for the accused submitted that no accident was caused by the accused . As aforesaid stated, this fact has already been admitted by the accused and it is well settled law that if some fact has been admitted by the accused, even during his statement, then same need not to be proved by the prosecution. In this regard, help can be taken from the decision of a case reported as AIR 1998 SC 1007 wherein it was observed that "if an accused admits any incriminating circumstances appearing in evidence against him, there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy".
s/v Hind Kumar ( page no. 5 of 18 )
(P/6)
FIR NO. 181/1996
u/s 279/337/338/304 A IPC.
P.S. IGI Airport
11. Similarly, in another case, reported as 1995 Cr.Law
Journal 2175 titled as Jankidas Vs State (Delhi High CourtDB). It
has held that " a bare reading of section 313 (4) Cr.PC shows that 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 Cr.PC to suggest that answers given by an accused admitting the evidence or circumstances proved against him, have to be ignored and have not been taken into consideration for judging his guilt".
12. Even otherwise also, it stands proved that accused was driving the vehicle and he caused an accident. PW 4 Gul Mohd has identified the accused in the court . He is also referring the zeep in question. PW7 Ct. Om Kar Singh , who was with the IO , stated that on receipt of DD no. 9 A , he alongwith IO S.I Udham Singh reached at the spot where one blue colour jeep no. DL 4 CA 8417 was found in accidental condition. Kamani of the right side of the jeep was got damaged and its shocker was also found damaged. IO seized the aforesaid jeep vide ExPW7/A. s/v Hind Kumar ( page no. 6 of 18 ) (P/7) FIR NO. 181/1996 u/s 279/337/338/304 A IPC.
P.S. IGI Airport
13. PW9 Inspector Udham Singh , IO , deposed that on 25.4.1996, on receipt of DD no.9A, he alongwith ct Onkar reached at the spot where blue colur Mahendera jeep bearing no. DL 4 CA 8417 was found in accidental condition. He came to know there that the injured had already been shifted to DDU hospital. He alongwith ct. Onkar reached DDU Hospital where he found injured Ram Gulam, his wife and his son alongwith Gul Mohd and Marium. He recorded the statement of Gul Mohd ExPW9/A and got registered the FIR through Ct Onkar. He went to the spot and prepared the site plan ExPW9/C . He seized the offending jeep vide ExPw7/A. On 28.4.1996, accused himself came at the P.S as he was named by the injured Gul Mohd. Accused was arrested vide PW 7/B and his personal search was conducted vide ExPW7/C. PW9 was cross examined by the accused.
14. During statement of accused recorded u/s 313 CrPC, he has not denied the aforesaid fact that the Jeep was seized, he was arrested and his personal search was carried out. From the testimonies of prosecution witnesses, statement of accused u/s 313 CrPC and the documents on record, it stands proved that on 25.4.1996 at s/v Hind Kumar ( page no. 7 of 18 ) (P/8) FIR NO. 181/1996 u/s 279/337/338/304 A IPC.
P.S. IGI Airport about 4:00 pm at Kakrola pull, main Najafgarh, Uttam Nagar road, he was driving the offending vehicle and caused an accident .
15. Next ingredient is that accused was driving the vehicle in rash or negligent manner. In order to prove the same , prosecution has examined PW4. Gul Mohd. Some portion of the testimony of PW4 is in handwriting therefore, for the sake of convenience , examination in chief of PW4 is being reproduced as follows:
" About 78 years back at about 4:00 pm in summer, exact date and year I do not remember, near police post near the bridge of Ganda Naka, nagli Dairy, I was going to the Rahubir on foot to catch a bus, with my wife Mariam, Ram Gulam , his wife, and his son Raja . Meanwhile a blue coloured vehicle jeep came from our front side and hit us. My wife leg was fractured. I fell down in the Nala due to the impact. Raja was draggd for some distance and Ram Gulam also sustained some injury. An iron rod sort of object fierced through the cheeks of my wife. Some unkown person came in Red Maruti and took us all to Deen Dayal Hospital where we were treated and later on came to our respective places. My wife had got some 3536,000/ rupees from insurance through counsel. I was on the pipe on the corner of the road when the offending jeep hit us. The driver whose one glimpse I had , was a fat person , who fled the scene leaving the jeep on the spot.
Note witness says that the driver of the offending vehicle was like the accused person present in the court by pointing him out correctly but he is not sure . Police never met me except once in DDU hospital . The vehicle which had caused the accident was also impounded by the police as was told to me by my acquaintances including the property dealer from whom I s/v Hind Kumar ( page no. 8 of 18 ) (P/9) FIR NO. 181/1996 u/s 279/337/338/304 A IPC.
P.S. IGI Airport had purchased the land, as he had come to the hospital. My statement recorded by the police in Hospital was signed by . Again said I am not literate , thus I had not signed the statement, but the statement of mine was indeed recorded by the police in the DDU Hospital on the day of incident itself. Accident was committed by Jeep of Blue colour .Jeep came from wrong side and hit to us when we were going on a pipe .Jeep was being driven by accused in Zig Zag manner. I am illiterate . I had not signed statement but police recorded my statement . I do not remember name of driver. ...."
16. PW4 has categorically stated that he alongwith his wife Mariam , one Ram Gulam , his wife and his son Raja were going to Raghubir on foot to catch a bus . One Blue colored Jeep came from their front side and hit them and they sustained injuries. He has further deposed that accident was caused by said jeep and it came from wrong side and hit them as they were going on a pipe . He further deposed that jeep was being driven by accused in a zig zag manner. PW4 was cross examined by the accused but even during his cross examination, his aforesaid testimony has gone unchanged and unrebutted . Not even a suggestion was put to the PW4 that accused was not driving the vehicle in zig zag manner and he was not driving on the wrong side. Rather , he has admitted that he was on wrong side but gave an explanation during his statement recorded u/s 313 CrPC that he came s/v Hind Kumar ( page no. 9 of 18 ) (P/10) FIR NO. 181/1996 u/s 279/337/338/304 A IPC.
P.S. IGI Airport to wrong side because kamani of the offending vehicle was broke down due to which he could not control the vehicle.
17. PW3 Retd Inspector Narain Singh has carried out the mechanical inspectrion of the offending Jeep and had given the report ExPW3/A. It is true that as per said report ExPW3 /A, front right side Kamani were broken but it will not give any benefit to the accused because there is nothing which could show that there were pit on the road due to which the Kamani of the offending vehicle broke down and due to which he could not control the vehicle. It has come on record that the offending vehicle had struck against the water pipe, therefore , in that circumstances, there is possibility that Kamani might have broken after the accident due to the impact of the accident itself .
18. PW9 Udham Singh deposed that he prepared the site plan ExPW9/C. PW9 was cross examined by the accused but accused has not disputed the site plan. Meaning thereby, site Plan ExPW9/C stands proved. From the site plan ExPW9/C, it is clear that the place where the accident had taken place, is a bridge/pull. There is no divider.
s/v Hind Kumar ( page no. 10 of 18 )
(P/11)
FIR NO. 181/1996
u/s 279/337/338/304 A IPC.
P.S. IGI Airport
That pull is having a foothpath and there is water pipe running through the said pull over the foothpath. Offending vehicle was coming from Uttam Nagar and was going towards Najafgarh, He came on the wrong side and subsequently came into contact with the water pipe . During the cross examination of PW9, who is the IO , it has come on record that there was a pipe line where the accident took place and there were tyre marks on the pipe line and it may be upto the height of two feet . It shows that how the vehicle was being driven in rash or negligent manner by the accused.
19. The driver while crossing such a bridge is supposed to take extra care and that too , when it is not having any divider. The injured and the deceased were walking on the water pipe line which was over the footpath . Meaning thereby, they were not on the road in any way but accused was driving the offending vehicle in such a manner that he hit the water pipe line and the public person who were walking on the pipe line were injured and one of them expired due to the said said accident.
s/v Hind Kumar ( page no. 11 of 18 )
(P/12)
FIR NO. 181/1996
u/s 279/337/338/304 A IPC.
P.S. IGI Airport
20. It was argued that injured person and the deceased were negligent while walking on the water pipe line. It is not denied that they were negligent but their negligent act was not proximate cause of the accident in question. Had it been that they have fallen from the water pipe line due to their aforesaid act and they sustained injuries then situation would have been different . But in the present case, they were walking on the pipe line and offending vehicle , which was coming from wrong side came into contact with the side pipe line due to which accident took place.
21. It was also argued that photographs have been taken but those photographs have not been filed on record . In this regard, I am of the opinion that same is not fatal to the case of the prosecution. Filing of the photographs alongwith their negatives could have been another piece of evidence to corroborate the story of the prosecution but in my opinion there is sufficient material available on record to hold that the act of the accused was the proximate cause of the accident due to which some person received simple/ grievous injuries and one person expired.
s/v Hind Kumar ( page no. 12 of 18 )
(P/13)
FIR NO. 181/1996
u/s 279/337/338/304 A IPC.
P.S. IGI Airport
22. Prosecution has also examined PW 1 Dr. Komal Singh who deposed that he conducted the postmortem on the body of the deceased Ram Gulam and gave his report ExPW1/A . He further replied that cause of the death was due to peritonities caused as a result of abdominal injuries caused by road side injuries. He further deposed that all the injuries were antimortem in nature and were of same duration . PW2 Dr. Amitabh Bhasin deposed that he examined X Ray Plate of Mariam and Noor Mohd and gave report ExPW2/A and ExPW2/B . PW6 Dr. Hoshiyar Singh deposed that on 25.4.1998, he examined injured Mariyam and Gul Mohd and prepared MLC vide ExPW6/A and PW6/B . PW6 was cross examined but Pw2 was not cross examined despite opportunities. Even during his cross examination testimony of PW6 has gone unchanged and there is nothing on record to disbelieve the same. From the MLC ExPW6/A , coupled with the X Ray Plate report ExPW2/A and Postmortem report ExPW1/A , it stands proved that one of the injured namely Mariam sustained grievous injury and Gul Mohd sustained simple injuries and one Ram Gulam expired.
s/v Hind Kumar ( page no. 13 of 18 )
(P/14)
FIR NO. 181/1996
u/s 279/337/338/304 A IPC.
P.S. IGI Airport
23. The manner and the mode of accident has been well explained by the prosecution witnesses which establishes the rashness or negligence as here in above discussed on the part of the driver/accused of the jeep in question. In the present case it is duly proved on record that rash or negligent act of the accused was the proximate cause of the death of Ram Gulam and grievous injury to Mariam and simple injury to other person. There is a direct nexus between the death of the deceased and aforesaid injuries and rash or negligent act of the accused.
24. Ld counsel for the accused has relied upon four authorities reported as 133(2006) DLT 562 , 2009 ( 10) AD ( Delhi ) 1992 and 1999 ( 81) DLT 47 and 2009 ( AIR) SC 3181 . I have gone through the same. First of all , I may mention that there is no doubt to the law as laid down by aforesaid authorities but same is not applicable to the facts and circumstances of the present case. In the present case , it has been established that act of the accused was proximate cause of the accident in question due to which two person sustained injuries and one person expired. In the present case , identity of the accused a driver of s/v Hind Kumar ( page no. 14 of 18 ) (P/15) FIR NO. 181/1996 u/s 279/337/338/304 A IPC.
P.S. IGI Airport the offending vehicle has been established beyond reasonable doubt.
25. In view of the above observation, facts and circumstances of the case, I hold that prosecution has proved the ingredients of section 279/337/338/304A IPC against the accused beyond the shadow of doubt. Accordingly, Accused Hind Kumar is, therefore, stands convicted for committing offence punishable U/s 279/337/338/304 A IPC . However, accused shall be heard separately on the point of sentence.
(RAJESH KUMAR GOEL)
ACMM 02/DWARKA
ANNOUNCED IN the OPEN COURT
TODAY I.E 17.2.2011
s/v Hind Kumar ( page no. 15 of 18 )
(P/16)
FIR NO. 181/1996
u/s 279/337/338/304 A IPC.
P.S. IGI Airport
FIR
NO. 181/1996
U/s
279/ 337/338/304 A IPC
P.S.
Najafgarh
state
vs Hind Kumar
1.3.2011
ORDER ON THE POINT OF SENTENCE:
Present:- Ld APP for the state.
Convict with ld counsel Sh S.K Pruthi and Sh Manoj Ahuja.
Ld counsel for the convict submits that convict is facing trial of the case for the last 15 years and he is not a previous convict . He submits that accused has a family to maintain and he is the only bread earner of his family . Ld counsel for the convict has made a request to release the convict on probation of good conduct stating that convict is 56 years old and is suffering from Diabetes and convict is is ready to pay compensation of Rs 80000/- to the injured/LR's of the deceased.
Ld. APP for state submit that appropriate sentence may be awarded.
I have heard the ld APP for the state and the ld counsel for the convict .
In the given facts and circumstances, convict Hind Kumar is senten`ced R.I for one month u/s 279 IPC alongwith fine of Rs 100/- in default 1 day S.I and R.I for four months u/s 337 IPC alongwith fine of Rs 300/- in default 3 days S.I and R.I Six months u/s 338 IPC alongwith fine of Rs 500/- in default 5 days S.I and R.I for one year u/s 304 A IPC alongwith fine of Rs 1000/- in default one month S.I. All the sentences shall concurrently.
Accused shall be given the benefit of Section s/v Hind Kumar ( page no. 16 of 18 ) (P/17) FIR NO. 181/1996 u/s 279/337/338/304 A IPC.
P.S. IGI Airport 428 CrPC, if any.
Keeping in view the nature of the offence and the given facts and circumstances of the present case and taking into consideration, economic, social ,family background , age and medical condition of the convict and the fact that he is ready to compensate the victim/LR's of the (2) deceased, the aforesaid sentence awarded is suspended and convict Hind Kumar is given benefit of probation offender act subject to the following conditions:
1. He shall furnish a probation bond of good conduct for a period of one year in the sum Rs.10,000/- with one surety in the like amount and with further direction to keep peace and good behaviour in the society .
2. He shall appear before the court to receive the sentence in the present case as and when summoned .
3. He shall deposit an amount of Rs 80,000/- in the court on or before 18.4.2011 as compensation . Out of the said compensation amount a compensation of Rs 50000/- shall be be paid to the LR's of the deceased Ram Gulam , Rs 15,000/- shall be paid to the injured Mariam and Rs 5000/- each to injured Gul Mohd , Noor Mohd and Raja .
In case , the convict fails to comply the any of the aforesaid directions for what soever reason , he shall appear before the court to serve the sentence , as awarded by this court.
Probation bond furnished. Accepted.
Copy of this order and judgment be given to the convict at free of cost today itself.
Now, LR's of the deceased and aforesaid injured person be summoned through SHO concerned for 18.4.2011.
(Rajesh
Kumar Goel)
s/v Hind Kumar ( page no. 17 of 18 )
(P/18)
FIR NO. 181/1996
u/s 279/337/338/304 A IPC.
P.S. IGI Airport
ACMM-02/Dwarka/ 1.3.2011
s/v Hind Kumar ( page no. 18 of 18 )