Delhi District Court
State vs . : Murari Lal on 21 April, 2015
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST)07, SAKET, NEW DELHI
FIR No. : 304/10
U/s : 279/338 IPC
PS : Sunlight Colony
State Vs. : Murari Lal
JUDGMENT
a The Sl. No. of the case : 101/3/11
b The date of commission : 23.08.2010
c The date of Institution of the case : 27.05.2011
d The name of complainant : Rajesh Devi
e The name of accused : Murari Lal S/o Kaushal Kishore
R/o Village - Adig, Mohalla,
Shera Paysa, P.S. Goverdhar,
District, Mathura, UP.
f The offence complained of : 279/338 IPC
g The plea of accused : Pleaded not guilty
h Arguments heard on : 21.04.2015
i The final order : Convicted
j The date of judgment : 21.04.2015
BRIEF STATEMENT OF REASONS FOR DECISION:
1 The accused has been sent for trial on the allegations that on 23.08.2010 at about 1 am in front of ISBT Sarai Kale Khan, Ring Road, within the jurisdiction of PS Sunlight Colony, was found driving a bus, bearing No. UP85M9036 in a rash and negligent so as to endanger human life and personal safety of others and while driving the said vehicle in said manner struck against one Rajesh Devi and caused grievous injuries on her person and thereby committed offence punishable u/s 279/338 IPC.
Brief facts are that PW1 injured/complainant Smt. Rajesh Devi came at Sarai Kale Khan from Agra traveling in UP roadways bus. She is an illiterate FIR No. 304/10 1 of 15 person. She was accompanied by her son PW3 Sachin Giri. While getting down from the bus, the bus driver suddenly started the bus and she fell down due to the sudden start. The rear tyre of the bus ran over the leg due to which she got injured. Behind her was her son. She got unconscious and gained consciousness in hospital where her statement Ex. PW1/A was recorded on which FIR was lodged. She identified the driver in the court as she had seen the driver during the journey. These facts have been reiterated by her son who has also identified the accused in the court. Investigation was conducted and charge sheet was filed in the court on 27.05.2011.
2 Notice u/s 251 Cr.P.C. for commission of offences punishable u/s 279/338 IPC was served upon the accused on 21.07.2012 to which he pleaded not guilty and claimed trial.
3 To prove its case prosecution examined 6 witnesses in support of its case.
PW1 is Rajesh Devi, who being the injured/complainant and PW3 Sachin Giri, who is son of the injured complainant have reiterated the aforesaid version in their testimony.
PW2 is Ct. Gangadhar, who being deputed with the IO during investigation of the present case has deposed about the investigation done by IO in the present case and has also exhibited the documents prepared during the course of investigation like seizure memo of DL vide Ex. A2, Seizure of RC of offending bus vide Ex. A3, seizure of fitness of the offending bus vide Ex.PW3/A, seizure of offending bus vide Ex. A4 and Ex. PW5/B, arrest and personal search of accused vide Ex. A6 and A7 and has also identified the photographs of offending vehicle vide Ex. P1 to P4.
PW4 is Ct. Mahender, who being posted as DD writer in the PS Sunlight Colony has proved the registration of DD No. 28 regarding information FIR No. 304/10 2 of 15 about the accident in the present case vide Ex. PW4/A and of DD No. 30 regarding admission of injured Rajesh Devi in the hospital vide Ex. PW4/B. PW5 is Hari Pal Singh, who being the supardari of the bus has deposed about taking the offending vehicle on supardari vide memo Ex. PW5/A. PW6 is ASI Shri Krishan, who being the IO of the case has deposed about the investigation done by him in the present case and has exhibited the documents as stated above during the course of investigation. Apart from the abovesaid PW6 has also deposed about the preparation of rukka Ex. PW6/A, preparation of site plan vide Ex. PW6/B, preparation of chargesheet in the present case and filing of same before the court after completion of investigation.
It is pertinent to note that the accused has admitted the genuineness of the following documents after denying contents therein like FIR, seizure memo of DL, RC, offending vehicle, MLC No. 43, arrest memo, personal search memo and police bail bonds vide Ex. A1 to A8 in his statement recorded u/s 294 Cr.PC.
4 Statement of accused was recorded U/s 313 Cr.P.C., wherein accused has denied all the allegation made against him and deposed that it is a false case registered against him. He vehicle was parked and the injured slipped from the stairs of the said vehicle and sustained injury. The accused preferred to lead evidence in his defence and examined one DW Umesh Kumar Singh in his defence evidence.
5 I have heard Ld. APP for the State and Ld. Defence Counsel as well as gone through case file very carefully.
6 The argument of Ld. APP is that there is enough material on evidence to prove the case against the accused.
7 Ld. Defence counsel on the other hand has raised various pleas which will FIR No. 304/10 3 of 15
be discussed pointing out the contradictions in the prosecution case entitling the accused to the benefit of doubt and hence he argued that the accused is entitled to acquittal in the present case.
8 I have perused the case file very carefully and have duly considered the respective arguments.
9 Relevant Law It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
Definition of rashness and negligence.
What is rashness or negligence has been defined in relevant paragraphs of the judgment of Ravi Kapur Vs State of Rajasthan 2012(7) SCALE354 which are quoted below:
16.A. Para11 "Negligence means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically FIR No. 304/10 4 of 15 exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence."
B. Para 17 "A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
Law relating to requirement of independent witness Further Sec. 100 Clause 4 & 5 CrPC talk about requirement of independent witnesses only when search is made on the person of the accused or at some place from where the incriminating articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned. Regarding the nonjoining of independent witnesses it has been stated in judgment titled as Appabhai v. State of Gujrat, 1988 Supp 241 : AIR 1988 SC 696 that "11...... Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One can not ignore this handicap with which the investigating FIR No. 304/10 5 of 15 agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. This has also been relied upon in judgment titled as Kathi Bharat Vasjur v. State of Gujarat in AIR 2012 SC 2163 (Para 22).
Minor contradictions do not effect the credibility of the prosecution case.
All the above said contradictions are very minor in nature which do not go to the root of the case or detract from credibility of prosecution case. It was held in the judgment titled as Ravi Kapoor V. State of Rajasthan, 2012 VIII AD (S.C) 73 that "Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence".
Ingredients to be proved.
I have perused the record very carefully and have considered the arguments advanced by the Ld. APP as well as the defence counsel. Before giving the reasons and my decision on the case, it would be pertinent to lay down the basic ingredients of Sec. 279 of IPC as well as Sec. 338 IPC. The accused is liable to be punished under Sec. 279 IPC when the prosecution proves the following ingredients :
(i) the accused should have been driving any vehicle
(ii) He should have been driving on a public way.
(iii) The manner of driving should be rash or negligent in a way to endanger human life or which is likely to cause hurt or injury to any other person.
FIR No. 304/10 6 of 15 The accused is liable to be punished under Sec. 338 IPC for causing simple hurt when prosecution proves the following ingredients :
(i) the accused has done any act which is rash or negligent which endanger human lives and personal safety of others.
(ii) By such act grievous hurt is caused to any person.
10 Hence, the central ingredients for holding the accused guilty under both the above said provisions is any rash or negligent act or driving of a motorvehicle on part of the accused. Prosecution must prove whether the accused was driving in a rash or negligent manner beyond reasonable doubt. If the prosecution fails to prove this ingredients beyond any shadow of doubt of a reasonable man than accused can not be convicted under both the charges leveled against him. 11 Now I will discuss whether the ingredients as outlined above have been satisfied by the prosecution or not.
(i) the accused should have been driving any vehicle It is clear from the evidence on record that the accused was driving the offending vehicle. He has been clearly identified by both the material witnesses PW1/injured and her son PW3 as the one who was driving the offending vehicle and while the injured was alighting from the bus, suddenly started the offending vehicle due to which due to which leg of the injured came beneath the rear tyre of the bus. The police witnesses PW2 Ct. Gangadhar who accompanied the IO PW6 ASI Shri Krishan and came to the spot on receipt of DD No. 28 have stated that they found the driver at the spot. Even the accused did not especially deny his presence at the spot in his examination under 313 Cr.P.C. Hence this ingredient stands proved.
(ii) He should have been driving on a public way.
It is clear from the evidence on the record which is the testimony of FIR No. 304/10 7 of 15 PW1 and PW3 eyewitnesses as well as police witnesses PW2 and PW6 that the accident occurred in front of ISBT Sarai Kale Khan Ring Road which is public way. The arrest memo Ex. A6 also shows the place of arrest at the said place. Hence this ingredient stands proved.
(iii) The manner of driving should be rash or negligent in a way to endanger human life or which is likely to cause hurt or injury to any other person.
It has come in the testimony of PW1 and PW3 that the accident happened when PW1 was getting down from the bus and she fell from the bus because the driver suddenly started the offending vehicle due to which rear tyre of the bus ran over the leg of the injured. This act of suddenly starting a bus when a passenger is deboarding is no doubt an act of negligence on the part of the driver of the offending vehicle. He should not have put the vehicle into motion considering the circumstances of the case that a passenger who was an old lady aged 49 years was getting off from the bus. Hence, this is clearly a case of negligent driving considering the parameters of Ravi Kapoor Case (Supra) in which the definition of negligence was elucidated In this regard no contradiction has come in the evidence of the prosecution that the accident happened in some other way due to which the driver/accused is not responsible. In the cross examination the defence counsel has not been able to prove otherwise. Hence this ingredient stands proved.
The accused is liable to be punished under Sec. 338 IPC for causing simple hurt when prosecution proves the following ingredients :
(i) the accused has done any act which is rash or negligent which endanger human lives and personal safety of others.
This ingredient already stands proved in view of the foregoing observations.
FIR No. 304/10 8 of 15
(ii) By such act grievous hurt is caused to any person. The MLC Ex. A5 clearly corroborates the version of the prosecution witnesses that there crush injury was sustained by PW1 on her leg which is grievous in nature and contents of which MLC have not been controverted by the accused as no doctor in this regard was either summoned by the court because of his admission u/s 294 Cr.PC nor any application u/s 311 Cr.P.C was filed by the accused and hence, no doctor was cross examined. This was necessary as the accused has denied the contents of the MLC Ex. A5. It is settled law that where accused does not cross examine a witness, his evidence either u/s 294 Cr.PC or given orally before the court is deemed to be admitted. Hence this ingredient stands proved.
12 I will now state the arguments of Ld. Defence Counsel and deal with them simultaneously.
(i) The Ld. Defence counsel has drawn the attention of the court towards an apparent contradiction in the testimony of PW1. It is stated by PW1 complainant/injured in the examination in chief that the accident happened when she fell down from the bus because it was suddenly started by the accused driver. Same is stated by PW3. However, in her own cross examination on the same date she states that the accident happened when the bus was not fully stopped but was in slow motion and she tried to get down from the bus. Thereafter when she suffered the accident her son also jumped from the moving bus. Hence, on one hand it is stated by her that the bus was stopped fully and when she was trying to alight, the driver suddenly started the bus and on the other hand she states that she was trying to deboard when the bus was still in motion which is not possible at the same time. Also PW1 states in her examination in chief that the rear tyre of the bus ran over her leg but in the cross examination she states that the front tyre FIR No. 304/10 9 of 15 of the bus ran over her right leg. Further, it has not been clarified by the prosecution whether the witness was alighting from the front door or the rear door. This also not clear because in the photographs Ex. P1 to P4 pertaining to the offending vehicle, the IO has not taken photographs showing the left side of the vehicle which has the doors. All the photographs are taken from the right side which are irrelevant in the present case. Next contradiction pointed out is that the witnesses has faulted the driver in causing the accident when she was alighting from the bus which door is on the left side but she states in her cross examination that she fell down at the right side of the bus which is not possible if the accident happened due to her alighting from the door on the left side of the bus. This shows that the witness has not brought out the true version of the incident. Hence, the accused is entitled to acquittal.
In my view all the said contradictions pointed out by the Ld. Counsel are not major contradictions considering the fact that the injured is an old lady and has come in court more than two and half years after the date of incident. Further as far as the contradictions whether the accident took place when the driver allowed the passenger to get off from the bus was in motion or it happened when the bus which was already stopped was suddenly put into motion will not be of any avail to the accused because in both cases the act of driving in such situation shows the negligence of the accused/driver. The accused is negligent in driving in both the situations i.e. whether the vehicle is in motion and the passenger is then trying to get off from the bus or whether the vehicle was suddenly put into motion. Even otherwise PW1 injured has been totally supported by PW3 in stating the manner of accident that it happened due to the negligence of the accused when the offending vehicle i.e. bus was suddenly put into motion by the accused. PW3 has not been contradicted by the Defence FIR No. 304/10 10 of 15 Counsel on this point and PW3 Sachin Giri who is the son of injured seems to be person of full mental faculties who is of young age and can remember things. There is no reason as to why he would state falsely on the subject. As far as the lack of clarity whether the injured had got off from the front door or the rear door, it is not material though the IO for reasons best known to him has not done a professional work in instructing the photographer to take the photographs of the bus from where the injured had got off. The reason is that both the material witnesses complainant PW1 and PW3 have held the ground as to how the accident occurred which is already discussed above to prove that it was attributable to the negligent driving of the accused. Hence, in view of the judgment of Ravi Kapoor Vs. State of Rajasthan (Supra), as the said contradictions are minor considering the circumstances of the case, accused cannot take any benefit from them.
(ii) It has been further argued by Ld. Defence Counsel that even though the accident happened at a public place i.e. ISBT at 1 am night time and the public would have been very much present there, still no public witness has been cited to corroborate the version of the witnesses. The IO has not stated any reason for absence of any citation of the public witnesses in the list of witnesses which also supports the version of the accused that the complainant was injured because she slipped from the staircase of the bus and did not fell due to the negligence driving of the accused.
It is settled law that independent witnesses are not necessary for corroboration in every case when the material witnesses sound truthful and their testimony is convincing to sustain the conviction of the accused. In this regard it is pertinent to mention that there is no such requirement of independent witnesses in Cr.P.C or Evidence Act. Even under Clause 4 and 5 of Section 100 FIR No. 304/10 11 of 15 Cr.PC two witnesses of the locality are necessary only in a case where any incriminating article is found from the possession of the accused and independent witnesses are not necessary where they can be quoted only as witness to the fact though it would be better if the IO has cited such witnesses. In view of the afore stated law in Appabhai v. State of Gujrat & Kathi Bharat Vasjur v. State of Gujarat (Supra) the prosecution case is not affected due to the absence of the public witnesses.
DECISION:
13 In view of proof of above said facts, I convict the accused for commission of offence of rash driving u/s 279 IPC and for causing grievous hurt to the injured u/s 338 IPC. Let convict be heard on the quantum of sentence.
Announced in the open (Ashok Kumar)
Court on 21.04.2015 MM(South East)07,
Saket, New Delhi.
FIR No. 304/10 12 of 15
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST)07, SAKET, NEW DELHI
FIR No. : 304/10
U/s : 279/338 IPC
PS : Sunlight Colony
State Vs. : Murari Lal
ORDER ON POINT OF SENTENCE
Present : Ld. APP for the State,
Accused/convict with Ld. Defence Counsel, Sh. A.K. Day. Vide separate judgment of today, accused has been convicted for offence punishable u/s 279/338 IPC.
Heard on point of sentence.
Ld. APP for the State says that no leniency should be shown in sentencing the convict and maximum sentence should be imposed upon him as provided under law.
Ld. Counsel for convict says that accused has a family to support consisting of wife and four children out of which one daughter is married and three other children are studying. The convict is aged about 40 years and a government servant working as driver in UP Roadways. The convict is not a previous convict and undertakes to be careful in future.
I have heard both accused as well as Ld. APP for the State. The purpose of sentencing after conviction is a balancing act. On one hand, punishment should be sufficient to deter the accused not to repeat the offence in future and become a good member in the society. On the other hand, the punishment should not be too harsh which results in accused becoming a hardcore criminal.
FIR No. 304/10 13 of 15 In my view convict does not deserve too much leniency. The reason is that a person who drives a vehicle must know that he should drive it carefully lest anybody may suffer his life or limb due to his fault. The driver of offending vehicle must know that he has a responsibility to drive the vehicle with due care and caution for every second he is on the road. It has been laid in a consistent line of judgments that cases of rash and negligent driving must be dealt with harshly. One such case is Dalbir Singh Vs State of Haryana wherein Hon'ble Apex Court has held that "When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the sterring of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain deterrent element in sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and frolic.
It was also observed that "Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, Criminal Courts cannot treat the nature of the offence under S. 304A, I.P.C. as attracting the benevolent provisions of S. 4 of the PO Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedals of a vehicle in locomotion. He cannot and should not FIR No. 304/10 14 of 15 take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the Court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the Courts can play, particularly at the level of trial Courts, for lessening the high rate of motor accidents due to callous driving of automobiles. In my view there is no reason why these observations of Hon'ble Supreme Court cannot apply in cases of grievous injury also sustained due to rash or negligent driving.
Further where a person drives a vehicle being drunk then that vehicle turns into a death machine and in such cases sentencing must have deterrent effect. In my view this much punishment is necessary in order to discourage such irresponsible drivers in society from committing similar offences. Hence the accused is also not entitled to the benefit of Probation of Offenders Act". In view of the observations above said, while refraining from imposing maximum sentence available in law in view of the certain mitigating circumstances of accused, I sentence the accused to a period of six months RI u/s 279 IPC, to a period of one year RI u/s 338 IPC. No separate sentence on fine is imposed. Both the sentences will run concurrently. Hence total sentence is one year A separate copy of judgment and order on sentence by provided to Counsel of convict free of cost.
Announced in the open (Ashok Kumar)
Court on 21.04.2015 MM(South East)07,
Saket, New Delhi.
FIR No. 304/10 15 of 15