Delhi District Court
State vs Prabheer Singh on 31 January, 2015
IN THE COURT OF SH. TARUN YOGESH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
State V/s Prabheer Singh
FIR No: 64/11
PS: Saket
U/s: 279, 304A & 468 / 471 IPC
JUDGMENT
1. S. No. / ID No. of the Case : 02406R0149282011
2. Date of Commission of Offence : 17.02.2011
3. Date of institution of the case : 10.06.2011
4. Name of the complainant : Suresh Kumar,
S/o Sh. Ram Kishan,
R/o H.No. E73, Sec4,
Pushp Vihar, New Delhi.
5. Name of accused, parentage : Prabheer Singh
S/o Sh. Brahm Singh
R/o Village Bharsi, PS
Kandhala, TehsilBhudana,
Dist Muzaffarnagar, UP.
6. Offence complained or proved : U/s 279,304A & 468/471
IPC.
FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 1 of 18
7. Plea of Accused : Pleaded not guilty.
8. Final Order : Convicted U/s 279, 304A &
471 IPC
9. Date of Final Order : 31.01.2015
B RIEF REASONS FOR SUCH DECISION :
01. Accused Prabheer Singh S/o late Brahm Singh has been tried for offence(s) U/s 279 & 304A IPC upon allegation of having driven green colour, lowfloor DTC bus bearing no. DL1PC1241 rashly and negligently at Press Enclave Road, in front of Modi Hospital, Saket on 17.02.2011 at around 8:00 PM and hit one bicycle, a twowheeler scooter and Santro car resulting in death not amounting to culpablehomicide of deceased late Avdhesh Sharma. Additionally, he has been also charged for offence U/s 468 / 471 IPC for forging driving license no. A302/MTR/95 dated 29.06.1995 with intention to cheat, in the alternative, to have fraudulently and dishonestly used fake driving license as genuine despite knowledge of its being forged.
02. Prosecution's case gathered from chargesheet reveals that information about accident in front of Modi Hospital, Saket was received FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 2 of 18 at 08:15 PM on 17.02.2011 which was recorded vide DD no. 66B, PS Saket and thereafter, SI Sanjay Sharma alongwith Ct. Harkesh reached at Press Enclave Road, near Modi Hospital, Saket where offending greencolour lowfloor DTC bus, scooter no. DL6SP6441, Santrocar No. DL9CA9877 and bicycle were found in accidental condition. Injured was stated to have been shifted to Modi Hospital. Leaving behind Ct. Harkesh at the spot, SI Sanjay Sharma reached Modi Hospital, Saket and obtained MLC No. 3358/11 of late Avdhesh Kumar who was reported 'brought dead'. Statement (complaint) of Sh. Suresh Kumar Saini was recorded wherein he alleged that accident was caused due to rash and negligent driving of alleged DTC bus by accused. Accused Prabheer Singh S/o late Brahm Singh having been apprehended by publicpersons was produced and on the basis of complaint and MLC of deceased, SI Sanjay Sharma prepared tehrir for offences U/s 279 & 304A IPC which was sent to PS Saket through Ct. Harkesh for registration of FIR.
03. During investigation, SI Sanjay Sharma (IO) inspected the spot of accident and prepared siteplan at the instance of complainant. Accused Prabheer Singh was formally arrested and released on police FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 3 of 18 bail. Alleged DTC bus, Santrocar, scooter and bicycle were seized and deposited in malkhana. Statements U/s 161 Cr.P.C. of witnesses were recorded. Body of deceased was transferred to AIIMS Mortuary and after its postmortemexamination, deadbody was handed over to its relatives for funeral rites. Mechanicalinspection of vehicles was got conducted and thereafter DTC bus and Santrocar were released on superdari. Statement of injured Sh. Jony (scooterdriver) was recorded U/s 161 Cr.PC and postmortemreport of deceased was collected wherein cause of death was recorded as "Hemorrhage shock due to multiple above mentioned injuries due to blunt external force which is possible in road traffic accident".
04. nd Further investigation was conducted by SI Ombir Singh (2 IO) and drivinglicense of accused was found to be fake upon verification from Mathura Authority. Offences U/s 420/46/471 IPC were accordingly added and accused Prabheer Singh was rearrested on 18.05.2011. His disclosurestatement was recorded and accused was remanded to nd judicialcustody. After finalizing investigation, SI Ombir Singh (2 IO) prepared chargesheet and filed in court on 10.06.2011. FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 4 of 18
05. Cognizance of offence(s) was taken and after compliance of section 207 Cr.P.C, accused Prabheer Singh was charged for offences U/s 279, 304A & 468 /471 IPC to which he pleaded not guilty and claimed trial.
06. Prosecution has adduced its evidence by examining complainant Sh. Suresh Kumar Saini and injured Sh. Jony (scooter driver) as PW01 and PW04. Sh. T.U. Siddqui (mechanicalinspector), Sh. Brijesh Kumar Sharma (elder brother of deceased), Sh. Roshan Singh (ATI, DTC Hasanpur Depot), Sh. Rakesh Kumar Gupta (Foreman, DTC, Hasanpur Depot) and Sh. Anal Bihari Shah (RecordClerk, ARTO Office, Mathura) have deposed as PW03, PW07, PW08, PW10 and PW12. Policewitnesses namely HC Harkesh, SI Sanjay Sharma (IO), nd Ct. Amarjeet, Retd. SI Ombir Singh (2 IO) and HC Bhoor Singh have testified as PW02, PW05, PW06, PW09 and PW11 respectively.
07. Copy of FIR No. 64/11, DD No. 66B, MLC No. 3358 (all dated 17.02.2011) and postmortemreport no. 179/1 dated 18.02.2011 were included in a list by prosecution which was put to accused U/s 294 Cr.PC and being not disputed have been exhibited as Ex. A1 to Ex. A4. FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 5 of 18
08. After closure of prosecution evidence, accused Prabheer Singh was examined U/s 313 Cr.P.C wherein he has admitted about driving alleged DTC bus, but denied the allegation of having caused accident due to his negligent driving. He has declined to comment upon deposition of complainant Sh. Suresh Kumar Saini (PW01) nonetheless disputed testimony of injured Sh. Jony (PW04) by reiterating that accident was not caused due to his negligence. As regards allegation about use of fake DL, accused claimed to have got his drivinglicense renewed twice from Mathura, U.P., but declined to comment upon depositions of PWs HC Bhoor Singh and Sh. Sh. Anal Bihari Shah, RecordClerk, ARTO, Mathura Authority.
09. Final arguments were addressed by Ld. APP for the State and Ld. defence counsel Sh. P.K. Jha.
10. Ld. APP for the State has argued for convicting accused Prabheer Singh for offences U/s 279, 304A & 471 IPC by adverting to testimonies of complainant Sh. Suresh Kumar Saini, injured Sh. Jony (scooterdriver) and PWs HC Bhoor Singh and Sh. Anal Bihari Shah.
11. Ld. defence counsel per contra has adverted to testimonies FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 6 of 18 of complainant (PW01) and injured (PW04) for contending that rash and negligent driving of alleged DTC bus by accused could not be proved by prosecution beyond reasonable doubt. Adv. Sh. P. K. Jha has also disputed the testimony of HC Bhoor Singh (PW10) and report filed by RecordClerk, ARTO Office, Mathura besides alluding to statement of accused recorded U/s 313 Cr.P.C. wherein he has claimed to have twice renewed his 'drivinglicense' from Mathura Authority.
12. Having heard their rival submissions and perused the statement of accused recorded U/s 313 Cr.P.C. wherein he has neither disputed his identity as driver of alleged DTC bus nor denied the accident (collision against bicycle), prosecution is left with sole burden to prove its allegation of rash or negligent driving of DTC bus resulting in accident, death of late Avdhesh Kumar and use of fake DL no. A302/MTR/95 dated 29.06.1995 by accused. It would be therefore prudent to refer to testimonies of relevant witnesses examined on record for adjudicating upon the guilt or innocence of accused Prabheer Singh.
13. Complainant Sh. Suresh Kumar Saini, in his examinationin chief has deposed to be going from Modi Hospital, Saket alongwith his FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 7 of 18 friend Sh. Ashok Sharma in his Santrocar no. DL9CA9877 on 17.02.2011. At about 8:00 PM, when they reached near Select City Mall, Press Enclave Road, alleged DTC bus bearing registration no. DL1PC1241, route no. 534 came at very fast speed and hit one two wheeler scooter no. DL 6SP 6441 on its back, running behind his car and after hitting and causing damage to his Santrocar also hit one bicycle. PW01 himself and his friend did not suffer any injury, but the scooter driver and the cyclist sustained injuries. Offending bus was finally stopped at a distance of about 100 meters from the place of accident near Modi Hospital. Complainant (PW01) has correctly identified accused Prabheer Singh in court and deposed that accident was caused due to rash, negligent driving and fastspeed of the bus. PW01 has proved his statement (complaint) as Ex. PW 1/A and also deposed about arrival of police at the spot after he had made call and to have shifted injured to hospital.
14. Testimony of complainant stands corroborated by injured Sh. Jony (PW04) who has deposed to be riding his scooter no. DL6SP6441 on 17.02.2011 which was hit on its back by alleged DTC bus upon FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 8 of 18 reaching near Modi Hospital, Saket at about 8:00 PM. After hitting his scooter, the DTC bus also hit one Santrocar and one bicycle resulting in injury upon both his legs and alongwith the cyclist he was got admitted at Modi Hospital by publicpersons. PW Sh. Jony has correctly identified accused as the driver of offending DTC bus besides deposing that accident was caused due to negligence of accused. Photographs of alleged DTC bus alongwith negatives were also identified by injured (PW04) hence exhibited as Ex. P1.
15. Upon being subjected to crossexamination by ld. defence counsel, complainant Sh. Suresh Kumar Saini (PW01) has deposed about speed of alleged DTC bus to be around 4050 KM / Hour and also claimed that deceased was riding his bicycle by the side of road. PW01 nonetheless admitted of having not seen the driver of DTC bus at the time of accident, but lateron, after accused (driver) was forced to stop the bus by the passengers at a distance of about 50100 meters near Modi Hospital. PW01 however claimed about the dickey of his car being totally smashed besides deposing to have stayed at the spot for about 1 1 ½ hours during which PCR Van and subsequently localpolice arrived there. FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 9 of 18 Suggestions put to witness against rash and negligent driving of alleged DTC bus by accused and of not hitting his car or causing any damage were promptly denied by PW01.
16. Injured Sh. Jony (PW04) upon being subjected to cross examination has similarly denied the suggestions put to him by ld. defence counsel. Testimonies of PW01 and PW04 of being hit by DTC bus stands corroborated by detailed mechanical inspection reports of Santrocar, scooter and Atlas bicycle, recording extensive damages upon the vehicles, which have been proved by Sh. T. U. Siddiqui (PW03) as Ex. PW 3/A, Ex. PW 3/B and Ex. PW 3/C respectively. Besides aforesaid mechanical inspection reports, Sh. Roshan Singh (PW08) has proved seizure memo of documents of DTC bus as Ex. PW 8/A and Sh. Rakesh Kumar Gupta (PW10) has proved his mechanical inspection report of DTC bus as Ex. PW 10/A wherein fresh damages found upon the bus have been recorded. Therefore, notwithstanding the plea of accused that his bus had collided against bicycle (alone) recorded during his examination U/s 313 Cr.P.C., prosecution's case of offending DTC bus having collided against scooter, Santrocar and bicycle before being FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 10 of 18 stopped at Modi Hospital busstop stands proved.
17. Therefore, notwithstanding the testimonies of PW01 & PW04 about their vehicles being hit by offending DTC bus from behind, for alleging rash and negligent driving by accused, in view of the admitted fact of accused driving alleged DTC bus on 17.02.2011 and hitting one twowheeler scooter, bicycle of deceased late Avdhesh and Santrocar at Press Enclave Road, in front of Modi Hospital, it is incumbent upon accused to explain the manner of collision of alleged bus with vehicles on road.
18. At this stage, it would be relevant to refer to case titled Devender Vs. State 2012 (1) C. C. Cases (HC) 269 wherein Hon'ble Ms. Justice Mukta Gupta has recorded following observation : "It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such nature as would prime facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such case the driver has to explain how the accident happened without FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 11 of 18 negligence on his part" (emphasis be supplied).
19. Similar observations have been recorded by Hon'ble Mr. Justice M.L. Mehta in case titled Mohan Shayam Vs. State (NCT of Delhi) 2012 (3) JCC 1523 to the effect :
"In the absence of any material on the record, no presumption of rashness or negligence could be drawn by invoking the maxim res ipsa loquitur"
20. Therefore, in the absence of any explanation about the manner of collision of DTC bus against scooter no. DL 6SP 6441, Santro car no. DL 9CA 9877 and the bicycle of deceased late Avdhesh Kumar, proved from depositions and mechanical inspection reports of vehicles proved on record, accident caused by alleged DTC bus primafacie indicates that accident could not have occurred except for the negligence of accused Prabheer Singh and presumption of res ipsa loquitur gets attracted in the facts of this case.
21. It is also pertinent to refer to testimony of PW10 Sh. Rakesh Kumar Gupta who has conducted mechanical inspection of offending DTC bus on 18.02.2011 and proved his report as Ex. PW 10/A wherein he FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 12 of 18 has reported starting, clutch, suspension, brake and steering system of DTC bus being 'ok', thereby indicating that accident could not be attributed to any 'technicalfault' in the bus.
22. Hon'ble Supreme Court of India in its judgment titled "Prabhakaran Vs. State of Kerala, AIR 2007 SC 2376" has observed : "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 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 FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 13 of 18 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 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).
23. Concept of "Negligence" in the context of road traffic accidents has been laid down in a catena of judicial pronouncements as failure to exercise the required degree of care and caution expected of a prudent driver, i.e. to say "negligence" is the omission to do something FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 14 of 18 which a reasonable man guided by considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Therefore, "negligence" is not always a question of direct evidence, but an inference to be drawn from proved facts as it is not an absolute term, but a relative term, rather a comparative term. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omission which could be reasonably foreseen to be likely to cause physical injury to person. The degree of care required depends upon the facts in each case and speed alone does not determine negligence.
24. Hence, fact of alleged DTC bus having collided against a twowheeler scooter, Santorcar and bicycle on the stretch of road in front of Modi Hospital which is usually visited by public persons being proved by prosecution, in the absence of any technical fault in the bus, failure of accused to exercise the required degree of care and caution expected of a prudent driver is very much evident which led to collision with aforesaid vehicles.
25. MLC NO. 3358 dated 17.02.2011 and postmortem report no. FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 15 of 18 179/11 dated 18.02.2011 have not been disputed by accused Prabheer Singh and are exhibited as Ex. A3 and Ex. A4. These documents prove that deceased Avdhesh Sharma was brought dead at Modi Hospital and also record total 29 antemortem injuries upon his body which were opined as the cause of death.
26. Allegation of negligent driving of DTC bus no. DL1PC1241 by accused Prabheer Singh leading to accident and consequent death not amounting to culpable homicide of deceased late Avdhesh Sharma being proved beyond reasonable doubt, guilt of accused has been brought home by prosecution, hence, accused Prabheer Singh stands convicted for offences U/s 279 & 304A IPC.
27. As regards offence U/s 468 / 471 IPC, no evidence has been adduced on record by prosecution to prove its allegation of forgery of driving license no. A302/MTR/95 dated 29.06.1995 by accused Prabheer Singh. In the absence of any incriminating evidence for proving its allegation, forgery of driving license for purpose of cheating could not be proved on record.
28. Nonetheless, as regards fraudulent and dishonest use of FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 16 of 18 fake driving license no. A302/MTR/95 dated 29.06.1995 by accused Prabheer Singh, seizure memo of fake drivinglicense of accused has been proved by HC Harkesh (PW02) and SI Sanjay Sharma (PW05) as Ex. PW 2/B. Impugned drivinglicense has been filed on record and exhibited as Ex P2 and further Retd. SI Ombir Singh (PW09) and Ct. Bhoor Singh (PW11) have deposed about its verification from Mathura Authority upon which it was found to be fake. Said report of Mathura Authority proved as Ex. PW 9/A records that aforesaid license had been issued to Sh. Ashok Kumar S/o Sh. Raghubar Dayal R/o Khamini, Mathura and not issued in the name of accused Prabheer Singh.
29. PW12 Shri Anal Bihari Shah, RecordClerk, ARTO, Mathura Authrity has corroborated their testimonies having brought the original register of DL No. A302/MTR/95 issued to one Ashok Kumar S/o Sh. Raghubar Dayal R/o Khamini, Mathura on 15.09.1995 and has proved the copy of relevant entry in the record as Ex. PW 12/A. Therefore, except for his statement of having renewed his drivinglicense twice from Mathura Authority, recorded U/s 313 Cr.P.C., accused Prabheer Singh has neither stepped into witness box himself nor summoned the record from Mathura FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 17 of 18 Authority for proving his contention.
30. Therefore, considering the seizure memo of DL, fake driving license in the name of accused Prabheer Singh filed on record, report of ARTO, Mathura proved as Ex. PW 9/A and copy of record (register of license no. A302/MTR/95) in the name of Sh. Ashok Kumar S/o Sh. Raghubar Dayal proved as Ex. PW 12/A, fraudulent and dishonest use of fake driving license by accused Prabheer Singh for gaining employment with DTC and producing it to SI Sanjay Sharma (IO) during investigation stands duly proved. Accordingly, accused Prabheer Singh S/o Sh. Braham Singh stands convicted for offence U/s 471 IPC.
31. Matter be now listed for submissions and order on question of sentence on 11.02.2015 at 2:00 PM.
ANNOUNCED IN THE OPEN COURT DATED: 31 January, 2015 th (TARUN YOGESH) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE SOUTH DISTRICT, SAKET COURTS : NEW DELHI FIR No: 64/11 PS Saket State Vs. Prabheer Singh Page 18 of 18