Delhi District Court
Shyambir Singh vs State on 9 July, 2018
IN THE COURT OF DR. RAKESH KUMAR: SPECIAL JUDGE
(CBI) (SOUTH): DISTRICT COURTS, SAKET
NEW DELHI
Criminal Appeal Number: 09/2017
Shyambir Singh,
S/o Piyare Lal,
R/o Village Panchampur,
District Mainpuri,
U.P. .................Appellant
Versus
State ...............Respondent
Date of institution of Appeal : 13.01.2017
Date of conclusion of arguments : 04.07.2018
Date of Judgment : 09.07.2018
For Appellant : Mr. Gaurav Kant Sharma, Advocate.
For Respondent : Mr. R.S. Negi Additional PP for State.
JUDGMENT
1. This appeal under Section 374 of the Code of Criminal Procedure, 1973 (Cr.P.C.) preferred by appellant Shyambir Singh (hereinafter referred to as 'the accused') against respondent i.e., the State, is directed against judgment dated 12.07.2016 and order dated 17.12.2016, passed by the court of Sh. Sushant Changotra, Metropolitan Magistrate-5, South District, Saket Courts, New Delhi, whereby, in a case arising out of police report bearing FIR no.
CA No. 09/17 Shyambir Singh v. State Page 1 of 19460/2000 entitled State v. Shyambir Singh, the Learned Metropolitan Magistrate convicted the accused for having committed for offences under Sections 279/338/304-A of the Indian Penal Code (hereinafter referred to as 'IPC') and passed sentence on him to undergo rigorous imprisonment for the period of one month for offence under Section 279 of IPC. Convict was also sentenced to undergo rigorous imprisonment for the period of six months for commission of offence under section 338 of IPC. Convict was further sentenced to undergo rigorous imprisonment for the period of two years and to pay compensation of Rs. 1,50,000/- to the legal heirs of deceased Kishori Lal for offence under Section 304-A of IPC. In default of payment of compensation, he shall undergo simple imprisonment of one month.
2. The circumstances giving rise to the present appeal are that, on 22.05.2002, a police report was put up by the State through the officer-in-charge of the Police Station Mehrauli, New Delhi before the learned Metropolitan Magistrate with the view to take cognizance of offences under sections 279/338/304-A of IPC and to proceed against the accused Shyambir Singh for having committed the said offences.
3. As per the police report, on 24.07.2000, one person namely, Satish Chand Sharma gave his statement to the police officials of Police Station Mehrauli who, inter alia, informed CA No. 09/17 Shyambir Singh v. State Page 2 of 19 the police that on 24.07.2000 at about 5.00 AM, he and his elder cousin brother Kishori Lal started from their home for going to their native village in Rajasthan; that at about 5.30 AM, they both were waiting for bus at Lado Sarai, M.B. Road T Point; that when Satish Chand Sharma was urinating nearby, one truck No. HR 38D 4754 came from the side of T.B. Hospital in a fast speed and rash and negligent manner; that the driver of the said truck took left turn and ran over Kishori Lal and crushed him; that another person who was waiting for bus was also crushed under the truck; that Kishori Lal brother of complainant died on the spot; that driver of the offending truck ran away from the spot; that he can identify the truck driver; that legal action be taken against the accused. It is further reported that on the basis of the information given by the complainant, first information report (FIR) was registered at Police Station Mehrauli, New Delhi and investigation started.
4. It is further reported that after investigation, it was concluded that the accused Shyambir Singh has committed offences punishable under sections 279/338/304-A of IPC for which the accused be put on trial.
5. On the police report, the learned Metropolitan Magistrate, on 22.05.2002, having taken the cognizance of the offences, summoned the accused.
CA No. 09/17 Shyambir Singh v. State Page 3 of 196. Pursuant to summons issued against him, the accused appeared before the learned Metropolitan Magistrate. Copies of police report and other documents in compliance of section 207 Cr.P.C. were supplied to the accused.
7. On 03.09.2002, the particulars of the offences were stated to the accused and he was asked whether he pleaded guilty or claimed trial. The accused did not plead guilty and claimed trial.
8. Thereafter, the Magistrate, proceeded to hear the prosecution and took evidence in support of the prosecution. The prosecution examined as many eleven witnesses. PW1 was Satish Chand Sharma, the cousin brother of the deceased on whose statement, FIR was registered. PW2 was Madan Lal Sharma, the neighbour of the deceased who identified the dead body of deceased and received the body from the hospital. PW3 was Head Constable Jawahar Lal, he was duty officer at PS Mehrauli and he recorded FIR. PW4 was Khem Chand, the injured who received injuries in the accident and he had identified the accused present in court. PW5 was Narayan Singh, the owner of truck No. HR38 D4754 and he took the offending truck on superdari. PW6 was Bhuvnesh Sharma, the record clerk from AIIMS. He brought the record of MLC no. 69971/00 of Khem Chand. PW7 was Smt. Shail Jain, learned ADJ, Tis Hazari Courts, Delhi who conducted TIP CA No. 09/17 Shyambir Singh v. State Page 4 of 19 proceedings of accused Shyambir Singh and proved the TIP proceedings of accused Shyambir Singh. PW8 was Constable Vijayan who joined Investigation Officer in investigation. PW9 was Professor Sunil Kumar Sharma, who conducted postmortem on the body of deceased Kishori Lal. PW10 was SI Jitender Kumar, the investigating officer of the case. PW11 was ASI/Tech Devender Kumar, who conducted mechanical inspection of truck No. HR 38D 4754.
9. After the witnesses for prosecution have been examined, for the purpose of enabling the accused personally to explain all the circumstances appearing in evidence against him, on 15.10.2015, the court examined the accused and his statement under Section 313 Cr.P.C. was recorded. The accused opted not to lead defence evidence.
10. Upon taking of evidence, the Learned Magistrate found the accused guilty, convicted the accused of the offence under Sections 279/338/304-A of IPC and passed on sentence on the accused. Vide judgment dated 12.07.2016, the learned Magistrate, inter alia, observed as follows:-
"As per the case of prosecution, the accident was witnessed by PW1 Sh. Satish Chand Sharma and injured PW4 Sh. Khem Chand. Both these witnesses categorically deposed that on 24.07.2000 at about 05.30 AM, accused Shyambir Singh was driving truck no. HR 38D 4754 at a very fast speed. He came from the side of T.B. Hospital Mehrauli, took left side and ran over the deceased Kishori Lal and injured Sh. Khem Chand who were waiting for the bus. PW4 Sh. Khem Chand also deposed that he was standing on the foot path and was waiting for the bus. The testimonies of both these witnesses have gone completely unchallenged as they were not cross-examined.CA No. 09/17 Shyambir Singh v. State Page 5 of 19
Thus, the testimonies of both these witnesses corroborate each other and are categorical to the extent that accused while driving his truck no. HR 38D 4754 ran over to by-standers who were waiting for the bus by standing on footpath. The prosecution has also proved photographs of the scene of crime as Ex. P1 to P3 and their negatives Ex. P4 to P6. The said photographs show that the offending truck was lying in the bushes after cross the footpath and one dead body was also lying near it. PW2 Sh. Madan Lal Sharma also supported the version of PW1. He deposed that on 24.07.2000 he was going to Vasant Kunj at Lado Sarai, he found that public had gathered and PW1 Sh. Satish Chand Sharma was present there. He saw that dead body of Sh. Kishori Lal was lying at the spot. Even his testimony has gone completely unchallenged. It also corroborates the case of prosecution that deceased was run over at the spot and PW1 Sh. Satish Chand Sharma was present there at the time of accident.
xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx
The prosecution has proved MLC of injured Khem Chand as Ex. PW6/A. The doctor opined the nature of injury as grievous. Similary, in postmortem report of deceased Kishori Lal Ex. PW9/A, it has opined that cause of death was due to road traffic accident.
Thus, in view of aforementioned discussions, it has to be concluded that prosecution has successfully proved beyond reasonable doubt that accused Shyambir Singh while driving his truck no. HR 38D 4754 in rash and negligent manner at a public place caused grievous injury to Sh. Khem Chand and death of deceased Kishori Lal. Accordingly, accused Shyambir is convicted for the commission of offence punishable under Section 279 & 338 & 304A IPC.
Let the accused be heard on quantum of sentence".
11. Vide order on sentence dated 17.12.2016, the learned Magistrate, inter alia, sentenced the appellant to undergo rigorous imprisonment for the period of one month for offence under Section 279 of IPC. Convict was also sentenced to undergo rigorous imprisonment for the period of six months for commission of offence under section 338 of IPC. Convict was further sentenced to undergo rigorous CA No. 09/17 Shyambir Singh v. State Page 6 of 19 imprisonment for the period of two years and to pay compensation of Rs. 1,50,000/- to the legal heirs of deceased Kishori Lal for offence under Section 304-A of IPC. In default of payment of compensation, he shall undergo simple imprisonment of one month.
12. Feeling aggrieved of the impugned judgment and order, the appellant has preferred the present appeal with the following prayer: -
It is prayed that the appeal of the appellant may kindly be allowed and the impugned orders of conviction and sentence dated 12.07.2016 and 17.12.2016 may kindly be quashed and set-aside and the appellant may kindly be acquitted in the interest of justice.
13. I have heard counsel for the parties and have gone through the record of the case FIR no. 460/2000 PS Mehrauli entitled State v. Shyambir Singh, decided by the learned Magistrate.
14. Having drawn my attention on the contents of the appeal, the impugned judgment dated 12.07.2016 and impugned order dated 17.12.2016 and the record of case FIR no. 460/2000, decided by the learned Metropolitan Magistrate, it is submitted by counsel for the appellant that the impugned judgment and order on sentence are bad in law and contrary to the facts on record and have been passed without application of judicious mind, therefore, the same be CA No. 09/17 Shyambir Singh v. State Page 7 of 19 reversed. It is further submitted that the appellant was not driving the truck at the relevant time. It is further submitted that the there was no evidence on record about the rash and negligent driving of the appellant and any injury was caused to the deceased by the vehicle/truck being driven by the appellant. It is further submitted that learned Magistrate failed to consider the fact that in his entire testimony PW-1 Satish Chand Sharma has nowhere deposed that the offending vehicle was driven by the appellant accused in a rash and negligent manner. It is further submitted that the learned Magistrate failed to appreciate and consider the fact that the appellant is having clear antecedents, is not involved in any other case of whatsoever in nature. It is further submitted that the appellant has a wife, three minor children and mother to support and he has undergone the agony of trial for about 14 years and the benefit of probation may be extended to the appellant.
15. Per contra, the learned Additional PP for the State/respondent submitted that the learned trial court has rightly convicted the appellant. It is prayed by the learned Additional PP that the impugned judgment and order on sentence may be upheld as the convict does not deserve any leniency since a precious human life is lost in the accident caused by the convict.
CA No. 09/17 Shyambir Singh v. State Page 8 of 1916. I have given my thoughtful consideration to the submissions made on behalf of the parties.
17. As mentioned above, the appellant has been convicted for having committed an offence under Sections 279/338/304A of IPC. Section 279 of IPC provides for as under:
"S. 279 Rash driving or riding on a public way.- Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
18. For obtaining conviction under Section 279 IPC, the prosecution needs to prove:-
i) that the accused was driving the vehicle;
ii) he was driving the said vehicle on public way;
iii) he was driving the vehicle in a rash and negligent manner; and
iv) he was driving the vehicle in such a manner so as to endanger human life, or to be likely to cause hurt or injury to any other person.
19. It is in the evidence of PW1 Satish Chand Sharma CA No. 09/17 Shyambir Singh v. State Page 9 of 19 that driver of the offending vehicle had run away from the spot and the accused present in the court was driving the vehicle at the time of incident. PW4 Khem Chand, the injured, has also correctly identified the accused as driver of offending vehicle. These witnesses were not cross-examined on behalf of the accused despite opportunity.
20. In the instant case, from the evidence of PW1 Satish Chand Sharma, the brother of the deceased, on whose statement FIR was registered and PW4 Khem Chand who was injured, it has been proved that the driver/accused had run away from the scene of occurrence after incident. These witnesses properly identified him in the court, therefore, the identification of the accused is established.
21. Next questions for consideration are that the accused was driving the offending vehicle on a public way in a rash and negligent manner so as to endanger human life, or to be likely to cause hurt or injury to any person.
22. It is in the evidence of PW1 Satish Chand Sharma that on 24.07.2000 at about 5.00AM he and his brother Kishori Lal were going to native village in Rajashtan and at about 5.30 AM when they were standing at Bus Stand M.B. Road T-point, Lado Sarai and were waiting for bus, truck CA No. 09/17 Shyambir Singh v. State Page 10 of 19 bearing no. HR 38D 4754 came from the side of T.B. Hospital, Mehrauli at a very fast speed and took left side. The truck ran over his brother and crushed him and one more person who was also standing for bus. It is also in the evidence of PW4 Khem Chand that the offending vehicle came from front side and the driver was driving negligently and rashly and he was on the 'patri' itself.
23. In the case in hand, by simply stating that the vehicle was being driven negligently was not sufficient to prove this fact. Apart from this, site plan Ex. PW10/A showed that the accident took place on the side of the road which was having a bend. It was a T point where roads also merge. Complainant and his deceased brother were going to their native village and while standing on the side of the road, they were waiting for the bus. Death of the deceased caused due to the truck hit the deceased from front side. The speed of the offending truck was so high that after crushing the deceased on the road it also hit the injured Khem Chand who standing on the footpath did not stop on the road but entered in the nearby nursery. The finding of negligence against the truck driver was proved. Where the accused drove the truck so negligently and hit the deceased and one another person, accused is liable for conviction under Section 279 IPC.
CA No. 09/17 Shyambir Singh v. State Page 11 of 1924. As regards the provisions of Section 338 of IPC are concerned, they are attracted only in respect of causing grievous hurt by act endangering life or personal safety of others. The section reads as under:-
S.338. Causing grievous hurt by act endangering life or personal safety.-Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to one thousand rupees, or with both.
25. A perusal of section 338 would clearly demonstrate that before a person is held guilty of the offence, following ingredients needs to be established:
a) Causing grievous hurt to a person,
b) Causing hurt should be the result of an act,
c) Such act ought to have been rash and negligent,
d) The intensity of commission of such an act ought to endanger human life or the personal safety of others.
26. The main question that arises for consideration is as to if the injured persons received injuries as a result of the rash and negligent driving of the appellant. A person can be held guilty under Section 338 of IPC, only when it is held that he caused the injuries. A conviction can be sustained under Section 338 of IPC if the injuries are the direct result of rash CA No. 09/17 Shyambir Singh v. State Page 12 of 19 and negligent act of the accused.
27. PW4 Khem Chand has stated that he was going to bus stand of Lado Sarai at about 5.30AM, one truck no. HR38D 4754 came from front and struck against him and at that time he was walking on the side 'patri' of the road. PW4 came under the truck. PW4 further stated that driver was driving the truck negligently and rashly. The injured was admitted to hospital where he remained for about 12 days. PW6 Bhuvnesh Sharma, record clerk from AIIMS has proved the MLC Ex. PW6/A of Khem Chand which was prepared by Dr. S. Ramaiya on 24.07.2000. In the said MLC, the injuries have been shown as grievous. PW1 Satish Chand Sharma, the complainant has also proved that due to the act of the accused, PW4 Khem Chand was injured. Thus, it is proved beyond reasonable doubt that accused while driving the truck has caused grievous injuries to Khem Chand and the accused has committed offence under Section 338 IPC.
28. As regards the provisions of Section 304-A of IPC are concerned, they are attracted only in respect of a death caused due to culpable negligence. The section reads as under:-
304A. Causing death by negligence.-Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall CA No. 09/17 Shyambir Singh v. State Page 13 of 19 be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
29. The main question that arises for consideration is as to if the victim died as a result of the rash and negligent driving of the appellant. A person can be held guilty under Section 304-A of IPC, only when it is held that he caused the death. A conviction can be sustained under Section 304-A of IPC if death is the direct result of rash and negligent act of the accused.
30. There is evidence of brother of the deceased that the truck was driven by the accused driver fast and in a rash and negligent manner, hit the deceased young man. If the accused were to have had exercised little care in respect of the other users of the road by reducing the speed of the truck, it would have definitely avoided the risk and also avoided the accident.
31. There is the finding recorded by the learned Metropolitan Magistrate to the effect that the appellant was driving the truck in rash and negligent manner at a public place and hit against deceased Kishori Lal and injured Khem Chand. The result was that the deceased and injured fell down on the road and both came under the truck and as a CA No. 09/17 Shyambir Singh v. State Page 14 of 19 result of this, Kishori Lal died on the spot and Khem Chand received grievous injuries.
32. As between the pedestrians and driver of a motor vehicle, undoubtedly the latter's responsibility to use care and diligence is greater the duty to use care increase proportionately to the danger involved in dealing with the vehicle.
33. The main contention raised on behalf of the appellant is that the appellant was not driving truck at that relevant time. I have already observed above that from the testimonies of PW1, the complainant and PW4 Khem Chand, the injured, it has been established that the accused was driving the offending vehicle. Even otherwise, the appellant has not disputed the photographs which shows the body of the deceased lying on the road. The accused has also not disputed the photographs of offending truck. The owner of the offending truck has been examined by the prosecution as PW5 Narayan Singh. It is in the evidence of PW5 that he was the owner of offending truck and on the day of accident the accused Shyambir was driving the truck and he had taken the truck on superdari vide memo Ex. PW5/B. It is also in the evidence of PW5 that in reply to the notice under Section 133 M.V. Act, he had made reply (Ex. PW5/A) and he also proved CA No. 09/17 Shyambir Singh v. State Page 15 of 19 the photographs of the truck Ex. P1 to P3 and negatives Ex. P4 to P6. PW5 was not cross-examined on behalf of the accused, so the testimonies of PW5 remained unchallenged and unrebutted. It is also in the evidence of PW7 Smt. Shail Jain, learned ADJ who had conducted TIP that the accused Shyambir had refused to participate in TIP proceedings by stating that the witness had seen him on the spot. The proceedings of TIP (Ex. PW7/B) also reveals that the accused has stated that he did not want to participate in TIP proceedings as the witness has seen him at the spot. From the testimonies of PW1, PW4, PW5 and PW7, it has been proved that the accused was driving the offending truck at the time of accident and he fled from the spot after the accident.
34. For the discussion aforementioned, I am of the clear view that eye witness is reliable and minor contradictions regarding case are not fatal in such case. All these factors very clearly indicated that the vehicle was being driven by the accused in a rash and negligent manner and the injury that have occurred are directly attributable to that fact.
35. The sentence must be taken into account gravity of offence and its nature otherwise it can seriously undermine the respect of court of law. Misplaced sympathy for accused is harmful for criminal judicial system. On the question of CA No. 09/17 Shyambir Singh v. State Page 16 of 19 sentencing, the Hon'ble Supreme Court, recently, in State of Punjab v. Bawa Singh, (2015) 3SCC 441, having reiterated need to impose adequate sentence held as follows:-
"We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing court are expected to consider all relevant facts and circumstances bearing on the question of sentence commensurate with the gravity of the offence. The court must not only keeping in view the rights of the victim of crime but also the society at large while considering the imposition of appropriate punishment."
36. It has been held by the Hon'ble Supreme Court in Rattan Singh v. State of Punjab, AIR 1980 SC 84 as follows:
This, however, does not excuse the accused from his rash driving of a 'blind Leviathan in berserk locomotion". If we may adapt the words of Lord Greene, M.R. :"it scarcely lies in the mouth of the truck driver who plays with fire to complain of burnt fingers". Rashness and negligence are relative concepts, not absolute abstractions. In our current conditions, the law under Section 304-A IPC and under the rubric of Negligence, must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces. Thus viewed, it is fair to apply the rule of res ipsa loquitur, of course, with care. Conventional defences, except under compelling evidence, must break down before the pragmatic Court and must be given short shrift. Looked at from this angle, we are convinced with the present case deserves no consideration on the question of conviction.
Counsel for petitioner has contended that a sentence of 2 years' RI is excessive, especially having regard to the fact that the petitioner has a large family to maintain, and the proprietor of the truck has left his family in the cold. When a life has been lost and the circumstances of driving are harsh, no compassion can be shown. We do not interfere with the sentence, although the owner is often not normally innocent.
37. From a perusal of the judgment and order on sentence passed by the learned trial court, it can be discerned CA No. 09/17 Shyambir Singh v. State Page 17 of 19 that the learned trial court, while passing the sentence of imprisonment against the accused, took into account all the attending circumstances, bearing on the question of sentence. In the light of law laid down in Rattan Singh's case (supra), the accused is not entitled to any leniency.
38. The Learned trial court has also properly considered the question of entitlement of benefit of probation of Offenders Act. Keeping in view the nature of offence and the manner it is committed and the fact that due to rash and negligent act of the accused, three persons were grievously injured, I am of the opinion that accused is not entitled to the benefit of his release on probation.
39. To sum up, in view of the above discussion, it is found that the accused has rightly and lawfully been convicted for the offence punishable under Sections 279/338/304-A of IPC. The sentence passed upon the accused is also not excessive, and is in accordance with the law laid down by the Hon'ble Supreme Court. The impugned judgment dated 12.07.2016 and impugned order dated 17.12.2016, passed by learned trial court are hereby upheld. The appeal is without merit and accordingly same is dismissed.
40. The appellant/convict be taken into custody and be sent to jail under appropriate warrants to serve the sentence.
CA No. 09/17 Shyambir Singh v. State Page 18 of 19His bonds and bail bonds furnished under Section 389 (1) of Cr.P.C. are cancelled. The surety is discharged. Needless to say that convict/appellant would be entitled to benefit of Section 428 Cr.P.C.
41. The record of the case FIR No. 460/2000 PS Mehrauli entitled State v. Shyambir Singh, called from the court of the learned Magistrate be sent back along with a copy of this order.
42. A copy of this judgment/order be given to convict free of cost.
43. File be consigned to the Record Room.
Pronounced in the open court (DR. RAKESH KUMAR) on 9th of July, 2018 Special Judge (PC Act) (CBI) South District, Saket Courts, New Delhi Digitally signed by RAKESH RAKESH KUMAR KUMAR Date:
2018.07.09 11:43:15 +0530 CA No. 09/17 Shyambir Singh v. State Page 19 of 19