Delhi District Court
Subhash Chand vs State Of Nct Of Delhi on 23 July, 2013
IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH DISTRICT): SAKET NEW DELHI
Criminal Appeal No. 208/2012
ID No: 02406R0272722012
Subhash Chand,
S/o Sukhbir Singh
R/o 615/5, Ashok Nagar, New Delhi .... Appellant
Versus
State of NCT of Delhi .... Respondent
Instituted on: 31.10.2012
Judgment reserved on: 23.07.2013
Judgment pronounced on: 23.07.2013
J U D G M E N T
1. This criminal appeal is directed against judgment dated 27.08.2012 and order on sentence dated 28.09.2012, both passed by Sh. Rajender Singh, Metropolitan Magistrate04 (South) on the file of criminal case No. 339/2 of 2010 (2008) registered on the basis of chargesheet submitted on conclusion of investigation into FIR No. 417/07 under sections 279/338 IPC of police station Kotla Mubarak Pur. Vide the impugned judgment, the appellant was held guilty and convicted for offence under section 279 IPC. Vide the impugned order, the learned magistrate awarded simple imprisonment for six months with fine of Rs. 1,000/, in default, Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 1 of 17 simple imprisonment for seven days.
2. On notice, respondent/State has appeared to contest the appeal.
3. I have heard Sh. Rahul Sheoran, Advocate for the appellant and Sh. Inder Kumar, Additional Public Prosecutor for the State. I have gone through the trial court record.
4. The facts of the case succinctly stated are that at 08.40 a.m. of 01.08.2007, intimation was received in police station Kotla Mubarak Pur (hereinafter referred to as "the police station") about an elderly woman having fallen off a bus near INA bus stand sub way crossing and having suffered injuries and the bus crew engaging itself in a quarrel. The intimation was logged vide DD No.2A. This intimation was followed by another intimation received at 10.15 a.m. from All India Institute of Medical Sciences (AIIMS) about a lady named Rajwati, wife of Ram Kishan, resident of Ansari Nagar, aged 55 years, having been admitted in the hospital against MLC recorded after having suffered injuries at bus stand. This further information was also reduced into writing vide DD No.4.
5. The trial court record further shows that at 09.22 a.m. of 01.08.2007 Rajwati, wife of Ram Kishan, aged 55 years was brought in injured condition to All India Institute of Medical Sciences (AIIMS) with history of fall from bus while getting down Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 2 of 17 near INA market at 08.30 a.m. The said injured person Rajwati (PW2) was examined in the hospital by Dr. Umesh T.N. against MLC No. 98912 of 2007 (Ex. PW 5/A). As per the observations recorded in the MLC, the examining doctor suspected fracture in the right shoulder and, thus, referred her for xray examination. Besides this, there were other injuries including abrasions over the left knee. It may be added here that the xray examination revealed as per report Ex. PW 5/B that PW2 had suffered fracture at greater tuberosity of right humerous bone.
6. The intimation vide DD No. 2B was made over by the police station to SI Raj Kumar Atri (PW6) who accompanied by Ct. Shyam Babu (PW1) first proceeded to INA bus stand, Aurobindo Marg where he found bus bearing No. DL1PA2506 (hereinafter referred to as "the bus") that was involved in the incident present with its driver Subhash Chand (the appellant). PW6 SI Raj Kumar Atri (investigating officer) left the accompanying constable/PW1 at the scene and proceeded to AIIMS (the hospital) along with the appellant. In the meantime, he also received copy of DD No. 4A. He found PW2 admitted against MLC with observations recorded as noted earlier. PW2 gave a statement (Ex. PW 2/A) before the investigating officer (the IO) on which the latter made his own endorsement (Ex. PW 6/A) on which basis FIR (Ex. PW 4/A) was Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 3 of 17 recorded at 12.05 p.m. on the same date.
7. According to the FIR based on her statement Ex. PW 2/A, PW2 had boarded the bus plying on route No. 335 from Yusuf Sarai to ITO. She stated that at about 08.00 a.m., she had requested the appellant, the driver of the bus, to stop at the next bus stand. She stated that the bus driver had applied brakes and as she was in the process of alighting and had only put her one foot out, the appellant had suddenly put the vehicle into motion in a rash/negligent manner moving it in zigzag motion as a result of which she fell out of the vehicle and suffered injuries. She stated that the passengers who were present at the scene had stopped the bus and questioned the appellant.
8. During the course of investigation, the IO prepared site plan (Ex. PW 6/B). He seized the bus vide memo Ex. PW 1/A. On his driving licence being demanded, the appellant produced a slip indicating the driving license of the appellant having been impounded in another similar case of accident vide FIR No. 293/07 under sections 279/337 IPC of PS Welcome. The slip was, thus, seized by the I.O. vide Ex. PW 1/D. The appellant was arrested vide arrest memo (Ex. PW 1/B) after personal search (vide Ex. PW 1/C).
9. It appears that the registration certificate of the bus had been Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 4 of 17 subjected to proceedings for its suspension initiated by Assistant Commissioner of Police (Traffic) on 11.11.2006 by way of notice under section 86 of Motor Vehicles Act (Ex. PW 1/F). When the IO demanded the registration certificate of the bus from the appellant, he produced the said notice which was taken into possession vide Ex. PW 1/E. The notice indicates the bus had been earlier subjected to traffic challans in which violation of permit conditions had been noted.
10.On conclusion of investigation, chargesheet was submitted by the police seeking trial of the appellant for offences under section 279/338 IPC. Ld. Magistrate took cognizance and issued process.
11. After compliance with section 207 Cr.P.C, the appellant was put to trial through notice under section 251 Cr.P.C issued and served on 20.02.2009 for offences under sections 279/338 IPC. The appellant pleaded not guilty.
12.The prosecution led evidence by examining six witnesses. They would include PW1 Ct. Shyam Babu, through whom the FIR was got registered; PW2 Smt. Rajwati, the victim; PW3 HC Jasbir, who had recorded the statement of the witnesses and prepared the challan; PW4 ASI Jitender Singh, the duty officer who had recorded FIR; PW5 Bhuwan Ram, record clerk, AIIMS; and PW6 SI Raj Kumar Atri, the initial Investigating Officer. Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 5 of 17
13.On 19.05.2011, the appellant admitted (under section 294 Cr.P.C) the mechanical inspection report in respect of the bus as conducted by Shri T.U. Siddiqui. It may be mentioned here itself that as per the said mechanical inspection report, the bus was road worthy with its brake mechanism in good order.
14. After the prosecution evidence had been closed, the statement of the appellant was recorded under section 313 Cr.P.C in which he claimed to be innocent and falsely implicated. He explained that PW2 had tried to alight from the bus in a hurry as she wanted to catch another bus of route No. 344. Despite opportunity, no evidence in defence was adduced.
15.The Ld. Magistrate heard arguments and thereafter passed the judgment. While the charge under section 279 was held brought home, the Ld. Magistrate observed that the prosecution had failed to prove its case under section 338 IPC beyond reasonable doubts as the material on record showed that the complainant was trying to alight after the vehicle had already crossed the bus stand. He observed that it was doubtful whether the injuries had been suffered due to rashness/negligence on the part of the appellant or on account of own negligence of PW2.
16.The reasoning in above regard as appearing in para 8 of the impugned judgment needs to be noted in extenso as under: Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 6 of 17 "The complainant PW2 stated that she asked the accused to stop the offending vehicle, since she was frightened due to the rash and negligent driving of the accused. At her asking the accused reduced the speed of the offending vehicle, however, before the complainant could alight from the offending vehicle, the accused in competition with another bus suddenly accelerated the speed of the offending vehicle.
In view of the testimony of PW2, it appears that she tried to alight from the offending vehicle before it came to be a complete halt. It was argued by Ld. Defence Counsel that the complainant should have waited for the offending vehicle to halt competely and then she should have alighted from the offending vehicle.
In my considered opinion the passengers travelling in the public transport buses are required to be safely inside the bus and not to stand on the foot board while the bus is still in motion. The passengers should wait for the bus to come to a complete half before reaching the foot board and when the vehicle has completely halted, then the passengers should alight safely.
The passengers should not risk their safety and life by the standing on the foot board when the vehicle is moving. In the present case the complainant tried to alight from the offending vehicle before it came to a complete halt. In view of the above it becomes doubtful whether the complainant sustained injury due to the rashness and negligence of the accused or she fell down due to her own negligence. It would be pertinent to mention that in case the drive Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 7 of 17 of the public transport bus, despite request does not stop the bus at the stand, the passengers should not try to alight from the moving vehicle."
17. Aggrieved with his conviction under section 279 IPC, this appeal has been brought by the appellant to assail the reasoning leading to the adverse result primarily on the ground that the injuries had been suffered by PW2 for her own fault as she had tried to alight from a moving bus.
18.During the course of arguments, the learned additional public prosecutor submitted that the conclusions reached by the learned trial court visavis accusation under section 338 IPC were not correct. According to him, the evidence clearly brings out the guilt of the appellant for rash driving of the bus which was the direct/immediate cause for her fall and which resulted in grievous hurt suffered by the elderly lady. The learned additional public prosecutor pointed out that in a criminal trial of such nature, contributory negligence cannot be a valid defence and, therefore, the doubts entertained by the trial court about the complicity of the appellant for offence under section 338 IPC were unfounded.
19.On careful appraisal of the evidence in entirety, I agree with the submissions of the additional public prosecutor.
20.The evidence unmistakably shows rash driving of the bus. The victim woman would not have fallen off the moving bus but for the Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 8 of 17 sequence of events narrated by her in her testimony which established that the appellant was driving his public transport vehicle in a rash speed, in competition with another bus, plying on the same route. PW2 has proved that when she had asked the appellant to stop the bus, as she was frightened due to his fast/rash driving, he had applied breaks and while she was getting down, he again started the vehicle at a high speed making her slip and fall off the foot board to end up sustaining injuries.
21. It is correct that in her statement Ex. PW2/A, on which the FIR was registered, PW2 had not spoken about she seeking to come out of the bus because she had been frightened at the manner in which it was being driven. But then, it has to be remembered that her statement was recorded a few hours after the occurrence. She having suffered a grievous injury would have been in excruciating pain and thus may not have in a position to give all the necessary details of the entire sequence of events on her own. It needs to be noted that she stated, even in the FIR, that she had boarded the bus from Yusuf Sarai, and intended to proceed to ITO. If her intended destination was ITO, there was no reason for her to come out of the bus at INA bus stand Aurobindo Marg, where the accident took place. This only reinforces the fact that for some reason she had been impelled to deboard the bus. The only plausible Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 9 of 17 reason for this would be what has been stated by her in the witness box. The defence plea, at the stage of statement under section 313 Cr.P.C, that PW2 was in a hurry to catch another bus on route No. 344 is apparently a figment of imagination of the appellant. No suggestions to this effect were given to PW2 during her cross examination. There is nothing to such effect appearing even otherwise in any other material on record.
22.While finding the appellant guilty for rash driving (S. 279 IPC) the trial Court in para 9 of the impugned judgment observed thus:
"The complainant PW2 during her examinationinchief stated that the accused was running the offending vehicle in competition with another bus of the same route. PW2 was not cross examined on this point. No suggestion to the contrary was given to her during her cross examination.
The city roads are meant for traveling and they are not to be converted into race tracks. Either for commercial reasons or for any other reason no driver of any vehicle shall be running/racing in competition with another vehicle on the city roads. The very fact that the accused was running the offending vehicle in competition with another bus of the same route goes to show that he was driving the offending vehicle in a rash manner. At the time of the incident, 56 passengers were travelling in the offending vehicle. In view of the testimony of PW2 and the facts and circumstances of the case, it is clear that the accused was driving the Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 10 of 17 offending vehicle so rashly and negligently as to endanger human life.
In Section 279 IPC, it is mentioned "............. or to be likely to cause hurt or injury to any other person.........".
In the facts and circumstances of the case as disclosed from the material on record, it is clear that the accused was very much aware of the likely result of his acts. It is clearly established that the accused was driving the offending vehicle in a rash and negligent manner so as to endanger human life or to be likely to cause hurt or injury to any other person."
23. The evidence of PW2 inspires confidence. She had no personal enmity against the appellant. She was a middleaged lady on her way to her workplace. She sought to alight from the bus as she was perturbed over the manner of driving by the appellant. The appellant indicated acceeding to her request by applying brakes, but even before she could actually alight safely on the road, he put the vehicle in sudden fast motion. The fact that she fell off the bus from the foot board while alighting, the responsibility for the mishap will have to be attributed to rash driving of the bus by the appellant.
24.The MLC coupled with the xray report, as noted earlier, leave no room for doubt that PW2 suffered grievous injuries as a result of the fall.
25.It would be pertinent to bear in mind what is meant by 'rash or Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 11 of 17 negligent act'. The Apex Court in Prabhakaran v. 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 charge has arisen it was the imperative duty of the accused person to have adopted.
8. The distinction has been very 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 imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but In circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection." (See In re: Nidamorti Nagabhusanam 7 Mad. H.C.R. 119)"
26.The above law has also been followed in State (Delhi Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 12 of 17 Adminstration) v. Desh Raj [2007 CrLJ 4595 (Del)].
27. I do not agree with the observations of the Ld. Magistrate about the prosecution having failed to prove its case in the context of accusation under section 338 IPC. The accusations for offences under sections 279 and 338 IPC are interconnected. Both are founded on the same material. In fact, it is the former offence which is the direct cause of latter. To put it conversely, the prime offence committed was rash driving of the bus on public road (S. 279 IPC) of which the consequence of grievous hurt (S. 338 IPC) was the direct result. If offence under section 279 IPC has been brought home then charge under section 338 IPC cannot remain unproved.
28. PW2 during her testimony stated that the appellant was driving the bus rashly, in competition with another bus on the same route, and since she had got frightened on this account, she had asked the appellant on which he had reduced the speed. She then stated that she was getting down from the bus when the appellant suddenly moved it at high speed which resulted in her fall. From the manner in which she has narrated the sequence, one cannot jump to the conclusion that PW2 had tried to come out of the bus merely upon the speed being reduced or before the bus had actually been brought to a halt. The inferences drawn by the Ld. Magistrate in Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 13 of 17 this regard seem to be flowing more from assumptions than any concrete material.
29.The site plan Ex. PW 6/B shows the place where PW2 fell out on the road to be ahead of the regular bus stand. This by itself confirms that the bus had not been stopped at the proper place and the appellant was in a hurry to move on. Even if it were to be held that PW1 had not waited till the vehicle had come to a complete halt before stepping down, the same at the most would show contributory negligence. But then, contributory negligence is no defence to such a criminal charge as was faced in this case.
30.The appellant was driving a public transport vehicle on stage carriage route. He was expected to ensure the safety of not only other road users but also, and particularly, the passengers who were using the transport of which he was the driver. The mere fact that he had stopped the vehicle on the request of PW2 shows that he knew that PW2 wanted to deboard. In these circumstances, it was his prime duty to let the lady get off the vehicle safely at the place where she intended to come out. The injuries suffered by PW2 thus must be held to be on account of rash driving by the appellant.
31. But then, the Ld. trial court having ordered acquittal of the appellant for the offence under section 338 IPC vide the judgment Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 14 of 17 dated 27.08.2012, and the State having failed to come up with any appeal questioning the correctness of the said direction and seeking its reversal, there is no scope for this court to interfere in the said result of the case.
32.In the facts and circumstances, the appeal against the conviction on the charge under section 279 IPC is wholly devoid of substance and must be dismissed.
33.Coming to the question of sentence, the counsel for the appellant submitted that he is the sole bread earner of his family and 42 years old and thus may be given benefit of release on probation.
34.In Dalbir Singh v. State of Haryana (2000(5) SCC 82) the Apex Court while convicting the appellant in that case under Section 304A IPC held as under:
"The 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 steering 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.
xxxxx While considering the quantum of sentence, to be imposed Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 15 of 17 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 pedal of a vehicle in locomotion. He cannot and should not 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."
35.The case at hand is not a routine case of accident involving collision of two motor vehicles. The appellant was driving a public transport vehicle. A better sense of discipline on the wheels of a motorvehicle of such nature was expected of him. As is indicated by the record of the trial court noted above, the case at hand is not the first case of motorvehicular accident in which the appellant has been involved. On being asked, he vaguely stated that the earlier case of accident is still pending trial. The material on record Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 16 of 17 also shows that he has been involved in other traffic offences. The middle aged lady, an innocent passenger, seeking to avail the services of public transport suffered grievous hurt on account of his rash driving. He has not shown any remorse whatsoever for the accident that occurred on account of his fault. On being asked, the counsel for the appellant submitted that the appellant does not want to give any compensation to PW2 so as to give succor to her. The appellant has been granted acquittal for the offence under section 338 IPC, in the opinion of this court, unreasonably. In these circumstances, I find no good reason for any lenient view in the matter of sentence, leave alone release on probation.
36.In the above facts, the appeal must fail. It is dismissed.
37. The bail bonds of the appellant stand discharged. He is taken into custody and sent to jail under appropriate warrant to undergo the sentence as awarded by the trial court.
38.A copy of the judgment be given free of costs to the appellant.
39.The Trial Court record be returned with copy of this judgment.
40.File of the criminal appeal be consigned to Record Room. Announced in open Court today on this 23rd day of July, 2013. (R.K. GAUBA) District & Sessions Judge (South District) Saket/New Delhi Crl. Appeal No. 208/2012 Subhash Chand Vs. State Page 17 of 17