Delhi District Court
State vs . Mohd. Hanif. on 9 August, 2012
IN THE COURT OF SHRI PRASHANT SHARMA,
METROPOLITAN MAGISTRATE 06,
SAKET COURTS, NEW DELHI.
Serial No. : 937/02 dated 18.5.04
Unique Identification No. 02406R0995002004
State Vs. Mohd. Hanif.
FIR No. 204/2002
P. S. Rama Krishna Puram
U/s 279/304A IPC
JUDGMENT
1.Srl. No. of the case & Date of institution 937/02 dated 20.11.2002.
2.Date of commission of offence 04.4.2002
3.Name of the complainant Subhash Kumar S/o Sh.
Ramcharan Mahrolia, R/o PWD Staff quarter Vallitaal, Nainital, Uttranchal.
4.Name of the accused Mohd. Hanif, S/o Sh.
Mohd. Habib, R/o H. NO.
382, Village Munirka, New Delhi.
5.Nature of offence complained of U/s 279/304A IPC
6.Plea of the accused person Accused pleaded not guilty
7. Date reserved for order 07.8.2012
8.Final Order Conviction.
9.Date of such order 09.8.2012 Date of Institution : 20.11.2002. Date of order reserved : 07.8.2012. Date of pronouncement : 09.8.2012. FIR No. 204/2002 P. S. Rama Krishna Puram Page No. 1 of 14 BRIEF FACTS OF THE CASE:
1. A bus driver, sits at a very significant position. He should not take his position for granted.
2. Criminal justice system was set into motion in the case, when DD no. 14A dt. 04.4.02 was received at PS R K Puram, whereby police was informed by duty Ct. Mahesh posted at S J hospital that a person namely Ramcharan S/o sh. Kundan Lal was brought to the hospital in dead condition. Consequently, on receiving the said DD entry, HC Anant Singh went to the spot of accident viz. Major Somnath Marg, Sector8, turn R K Puram, with Ct. Sabu, where bus no. DL 1PA 7440 blue line, route no. 750 was found in accidental condition. On enquiry it was found that the injured was shifted to S J hospital by PCR van. Then, Ct. Sabu was left at the spot and Ct. Anant Singh reached at S J Hospital where he obtained MLC bearing no. 45121. The said MLC disclosed that injured deceased Ram Charan Mehrulia, was brought dead in the hospital. At the hospital son of deceased namely Subhash Mehraulia, met HC Anant singh and his statement was recorded by the IO. In the said statement Subhash Mehraulia, disclosed how due to rash and negligent driving of driver of bus no. DL 1PA 7440, blue line, he lost his father. On the basis of the said statement HC Anant singh prepared rukka u/s 279/304A IPC and FIR in questioned was registered. During investigation IO prepared the site plan, recorded statement of witnesses, collected postmortem report of deceased, arrested the accused, seized the offending vehicle, got the FIR No. 204/2002 P. S. Rama Krishna Puram Page No. 2 of 14 mechanical inspection of offending vehicle done from expert, and handed over the body of deceased to his legal representative. Subsequently, investigation was conducted by IO SI Vishram Meena. Finally, after conducting the investigation charge sheet was filed against the accused.
3. After finding prima facie case against the accused was summoned.
4. Subsequently, Notice u/s 251 Cr.PC for the offences punishable u/s 279/304A IPC was framed on 02.12.2002 to which accused pleaded not guilty and claimed trial. Case was subsequently fixed for PE.
5. Prosecution in this case examined Seven witnesses. PW1 W. ASI Chandra Kanta had deposed that on 4.4.02, while she was at PS R K Puram as duty officer Ct. Sabbu brought a rukka sent by HC Anand Singh and she had registered the FIR Ex. PW1/A. PW2 SI Retd. Nand Lal had deposed that he had conducted mechanical inspection on 4.4.02 at the instance of HC Anand Singh and had given report Ex. PW2/A. PW3 S S Rawat had deposed that he had seen original MLC no. C/45121 of injured Ram Charan Singh which was prepared by Dr. Prachi Arya and also the death report of deceased Ram Charan Singh which was prepared by the said doctor. The MLC and death report were identified by him as Ex. PW3/A and Ex. PW3/B. PW4 Ct. Mahesh Chand had deposed that on 4.4.02, he was posted as duty constable at SJ Hospital. That on that day one PCR had admitted the injured in question at S J Hospital and he had informed the same to PS R K Puram by DD no. 14A. PW5 Subhash Chand Mehraulia had deposed that on 4.4.02, at about 2.00pm he alongwith his father boarded a bus bearing no. DL 1PA 7440 which was driven by accused. When the bus reached at sector8, R K Puram bus stop, and had stopped at the stop, then he got down from the bus. That FIR No. 204/2002 P. S. Rama Krishna Puram Page No. 3 of 14 when his father was getting down from the bus, accused suddenly accelerated the bus without giving any indication/warning and despite the fact that his father had raised the alarm to stop the bus. That accused rashly and negligently had driven the bus due to which his father fell down from the bus and had come under the rear wheel of the bus. That his father was run over by the said bus. That then accused had stopped the bus and accused also became furious when public had asked him that he had caused the said accident. That accused was apprehended by the passenger. Police recorded his statement Ex. PW5/A and he also pointed out the place of occurrence to the police. That accused was arrested by the police in his presence vide memo Ex.PW5/B. That he had further stated that he identified the dead body of his father at S J Hospital mortuary and police recorded his statement Ex.PW5/C and after completion of postmortem, the dead body of his father was handed over to him. PW6 Manoj Kumar had deposed that he had identified the dead body of his father late Sh. Ram Charan at the mortuary of S J Hospital on 05.4.02 who had died in the accident on 04.4.02. That he had reached in the hospital after the hearing the news of accident of my father. That his statement in this regard was Ex. PW6/A. PW7 ASI Anant Singh had deposed that on 4.4.02, he received DD no. 14A and he alongwith Ct. Sabbu reached to the accidental spot i.e. Major Som Nath marg, corner sector8 where they noticed one bus bearing no. DL 1PA 7440 blue line in accidental condition. That they came to know that the injured was shifted to S J Hospital by PCR van. That he left Ct. Sabbu at the spot and reached at S J Hospital, where he collected the MLC of Ram Charan who was declared brought dead. That he recorded statement of his son who was the eye witness to the accident. That on the said statement, he had made endorsement Ex. PW7/A. That he alongwith Complainant had come back to the spot where he had handed over the rukka to Ct. Sabbu for registration of the case. That Ct. Sabu went to the PS for registration FIR No. 204/2002 P. S. Rama Krishna Puram Page No. 4 of 14 of case alongwith the endorsement. That after registration of FIR he came back to the spot and handed over the copy of FIR and original rukka to the IO. That he further stated that he prepared the site plan Ex.PW7/B at the instance of complainant and he issued notice u/s 133 MV Act to the owner of the offending vehicle. The registered owner had given reply Ex. PW7/C. He seized the bus vide memo Ex. PW7/D, he also seized the RC from accused vide Ex. PW7/E, he arrested accused vide memo Ex. PW7/F, he conducted the personal search of accused vide memo Ex. PW5/B, he got mechanical inspection of the bus done. On 5.4.02, he got identified the dead body of the deceased through Subhash and Manoj Kumar. That he got conducted the postmortem and then handed over the dead body of the deceased to his LRs. Thereafter, investigation was hand over to SI Vishram Meena who filed the charge sheet.
6. Accused had admitted the postmortem report Ex.A1 u/s 294 Cr.PC reach with 313 (1)(a) Cr.PC and 281 Cr.PC.
7. Statement of accused u/s 313 Cr.PC read with 281 Cr.PC was recorded in which accused refuted all the incriminating evidence put to him. He did not want to lead defence evidence and therefore, matter was fixed for judgment after final arguments were heard.
8. In this case, accused had not disputed the fact that he was or was not driving the offending vehicle, at the relevant time of accident in question. He had not disputed that deceased in question had died and that his death was due to road accident. As he had admitted the postmortem report, so its conclusion, was also admitted by him, which said that death was due to road traffic accident. The FIR No. 204/2002 P. S. Rama Krishna Puram Page No. 5 of 14 only fact disputed by him was that he was not rash and negligent, in his driving.
9. To do the aforesaid appreciation of rashness and negligence, It would be pertinent to bear in mind what is meant by 'rash negligent act'. The Apex Court in Prabhakaran Vs. State of Kerala [AIR 2007 SC 2376], observed thus:
"7... "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charges has arisen it was the imperative duty of the accused person to have adopted".
The distinction has been aptly pointed out by Holloway J. in these words:
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences, may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The immutability arises from acting despite the consciousness. Culpable negligence is acting without the FIR No. 204/2002 P. S. Rama Krishna Puram Page No. 6 of 14 consciousness that the illegal and mischievous effect will follow, but In circumstances which show that th actor has to exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The immutability arises from the negligence of the civic duty of circumspection." (SCC In re: Nidamorti Nagabhusanam 7 Mad. H.C.R. 119)".
10.in this case, PW5 Subhash Chand Mehraulia was the alleged eye witness to the accident in question. He had stated in his testimony that when his father viz. deceased in question was deboarding the offending bus, then, accused had accelerated the bus without giving any indication or warning. Further the situation was all the more serious, as accused did not pay any heed to the alarm raised by his father while deboarding the bus. The said accident occurred at a bus stop. Therefore under normal circumstances, what was expected of the accused, being driver of a heavy vehicle was not done by him. The expectations were that accused should have driven his vehicle slowly at the bus stop, that he should have properly stopped the bus there, that after stopping the bus he should have convinced himself properly that no commuter was in the process of boarding or deboarding the bus and finally should have gradually accelerated the speed. Further even if due to ill fate of accused, if accident had occurred then he should have at least helped,the deceased in reaching the hospital. Accused failed on all fronts. He after reaching at the spot, though had stopped the bus, but while moving further did not subjectively satisfied himself regarding the aspect of boarding or deboarding of the bus by FIR No. 204/2002 P. S. Rama Krishna Puram Page No. 7 of 14 the commuters. Further, while deceased in question was de boarding the bus, he did not care to the alarm raised by the deceased. The cost of such blatant rash and negligent driving of accused was paid by the life of the deceased in question. Even after causing the accident accused became furious and manhandled the passenger, which reflected not only his callous approach but also his insensitive approach towards the need of the hour. Had the accident been a bonafide inadvertent act accused should have not only bowed before the public by admitting his genuine mistake, rather should have also taken the deceased to the hospital. Accused chose not to do so much to his disadvantage. During cross examination of this witness, various contradictory suggestions were put to him viz. that the offending bus was not being driven by accused on one hand and that accident had occurred due to fault of deceased in question, on other hand. Reason, why I say that they were contradictory stands was that either the accused was or was not driving the offending bus. If he was then he had to explain as to what was alleged fault of deceased while deboarding the bus, which resulted in accident in question. Secondly, if he was not there then he cannot, under normal circumstances, comment or suggest that it was fault of deceased, as it had not occurred in his presence. Those contradictory stands of accused were refuted by this witness. Such stands only weakened the case of accused and nothing else. Further presence of this witness at the spot was not disputed. There was no suggestion that he being son of deceased had falsely implicated accused for some FIR No. 204/2002 P. S. Rama Krishna Puram Page No. 8 of 14 X, Y and Z reasons. Offending bus registration number and route number were also not disputed. It was also not disputed that the offending bus was or was not present at the given spot on the relevant day in question. Occurrence of accident of deceased in the manner stated by this witness was also not disputed. Therefore, I had no reason to disbelieve the testimony of this witness. I found his testimony trustworthy and reliable.
3. PW7 ASI Anant singh was another witness whose testimony was valuable for the prosecution, as he was the IO of this case. In his testimony he narrated the facts as mentioned in the charge sheet. He therefore, stuck to the prosecution version. During cross examination, he did not receive any suggestion of faulty investigation. There was no suggestion that he had falsely implicated the accused for some X, Y and Z reasons. There was no suggestion that there were lacunas in investigation which were covered up by him so as to give undue benefit to complainant party. On the contrary facts like he had met son of deceased in hospital, that notice u/s 133 MV Act was given by him to the owner of offending vehicle, that offending bus was found by him at the sport etc, only cushioned and reaffirmed the prosecution story. Except for a bald suggestion of false deposition, which he had refuted, nothing was challenged in his testimony. Therefore, he also stood the acid test of cross examination. I, therefore, believed his version, to be trustworthy and credit worthy.
FIR No. 204/2002 P. S. Rama Krishna Puram Page No. 9 of 1415. Rest of the witnesses, were formal in nature. They were not cross examined. I had no reason, to disbelieve their testimonies.
16. In view of aforesaid appreciation of evidence, I found that prosecution, did discharge its initial onus of proving its case beyond reasonable doubt.
17. Accused on the other hand had raised certain issues, which I am dealing here. The first issue was that PW5 Subash Chand Mehraulia, being the son of deceased in question, was an interested witness and therefore, his testimony cannot be considered. The said argument was baseless. Reason being that firstly, the said argument was not put to the witness, by way of suggestion and secondly, that merely by saying that a witness, being close kin of the deceased in question, would not be sufficient to throw his testimony, over board. In my view, a close kin, would be the last person, to implicate an innocent person. In this regard, I found support from a recent judgment of Hon'ble High Court of Delhi, in case State (NCT of Delhi) Vs. Prakash 191 (2012) DLT 137 (DB), wherein it was observed by the court on legal side that close relationship of a witness with victim far from being a foundation for criticism of offender is often a sure guarantee of truth. The other issue was that PW5, who was the son of deceased, had not acted in a natural manner, by calling the police, which was expected of him. Further, this witness had deposed the fact that accused had become furious after the accident, which was not deposed by him before the police. Therefore, in view of the aforesaid non FIR No. 204/2002 P. S. Rama Krishna Puram Page No. 10 of 14 natural behavior and improvement on one aspect, it was argued that testimony of this witness should be discarded. The said arguments, were again rejected, in view of the fact that different witnesses, behave differently in different situations. There cannot be a strait jacket formula, with regard to the aspect of behaviour of a particular witness, in a given situation. I found assurance in this regard, from the observation of Hon'ble Apex Court in case Leela Ram Vs. State of Haryana (1999) 9 SCC 525, where it was held that " there are bound to be some discrepancies between the narrations of different witnesses when they speak on details and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases................................................
the court shall have to bear in mind that different witnesses, react differently under different situations. Where as some become speechless, some start wailing while some other run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic approach. " the other aspect, argued by the accused was that the IO did not make perform his investigation duty diligently as site plan did not FIR No. 204/2002 P. S. Rama Krishna Puram Page No. 11 of 14 mention presence of red light at the spot. The said argument, was again rejected, as time and again it was observed by Hon'ble Apex Court, that lacuanes in investigation, do not discard the testimonies of reliable witnesses. Finally, accused had relied upon two judgments viz. Abdul Subhan Vs. State 2007 Criminal Law Journal 1089 and Badri Prasad Tiwari Vs. State 1994 Criminal Law Journal 389, to argue that he was not rash and negligent in his driving, for the reason that the eye witness had only stated about fast speed of the offending vehicle and nothing else. I rejected the said citations as they were factually not applicable on the given facts and circumstances. Further, in this case it was not the speed aspect only, which was incriminating, rather the manner in which accused had driven his vehicle, which indicated that he was careless and rash in his driving as he failed to observe the precautions, which he was supposed to take while accelerating offending bus from the bus stop and he also failed to hear the alarm raised by deceased, for reasons best known to him. He did not respond to the glaring serious situation, where a commuter had fallen from the bus, near it and there was every possibility, of his coming beneath the rear wheel of the bus, which infact had occurred in this case. Accused did not use the front mirror, which is normally used to see the persons, boarding or deboarding the bus. Accused did not explain, as to what was the reason of hurry when he accelerated his speed. He did not explain, as to whether, something avoided him from listening the shout made by the deceased. Accused did not FIR No. 204/2002 P. S. Rama Krishna Puram Page No. 12 of 14 explain, as to how deceased in question was negligent, in his conduct, while deboarding the bus. In the absence of answers to aforesaid queries, I found his conduct rash and negligent.
18. In view of aforesaid appreciation of evidence on record, I found accused guilty of rash and negligent driving which resulted in death of deceased in question. Therefore, accused was convicted u/s 279/304A IPC.
18. Before coming to conclusion, I must mention here, the fact that complainant Subhash Kumar, who had filed the application u/s 156(3) Cr.PC, after a lapse of three years, backed out during trial, which made him the serious offender, for the protracted trial, faced by the accused.
18. Keeping in mind the discussion made above, I find that prosecution not failed to prove its case beyond reasonable doubt for the offence punishable U/s 279/304A IPC. Accordingly, accused Mohd. Hanif is convicted for the commission of the offences punishable U/s 279/304A IPC.
Announced in open court ( PRASHANT SHARMA ) today i.e. 09.8.2012. M.M.06, Saket Courts, New Delhi.
09.8.2012.
FIR No. 204/2002 P. S. Rama Krishna Puram Page No. 13 of 14 State Vs. Mohd. Hanif.
FIR No. 204/2002
P. S. Rama Krishna Puram
U/s 279/304A IPC
09.8.2012.
Present : Ld. APP for State.
Accused is present in person.
Vide my separate judgment of even date, accused is convicted for the offences u/s 279/304A IPC.
Put up for arguments on sentence on ( PRASHANT SHARMA ) M.M.6, Saket Courts, New Delhi 09.8.2012 FIR No. 204/2002 P. S. Rama Krishna Puram Page No. 14 of 14