Delhi District Court
Kuldeep Sharma vs The State on 6 October, 2017
IN THE COURT OF DR. SATINDER KUMAR GAUTAM,
SPECIAL JUDGE;NDPS SOUTH DISTRICT, SAKET
CA No.189/17
CNR No. DLST010055082017
Kuldeep Sharma ..........Appellant
S/o Sh. Ram Avtar,
R/o Bhotwas, PS Jatusahni,
Distt. Rewari, Haryana.
versus
The State ..........Respondent
FIR Number 523/2003
PS Mehrauli.
u/s 279/304 A IPC
Date of filing of Appeal : 27.07.2017
Final arguments heard on : 25.09.2017
Judgment announced on : 06.10.2017
Final outcome of Appeal : Appeal disposed off
JUDGEMENT
1. This Judgement shall dispose of Criminal Appeal No. 189/17; Kuldeep Sharma Vs State filed u/s 374 Cr. PC. against the judgement of conviction dated 29.04.2017 and order on sentence dated 27.06.2017 passed by the Ld. trial Court, whereby the petitioner was sentenced to undergo rigorous imprisonment for a period of two years and to pay the CA No. 189/2017 Kuldeep Sharma Vs State page no. 1 of 15 compensation of Rs. 50,000/ under Section 304A IPC to the legal heirs of deceased and in default of payment of compensation, he shall further undergo simple imprisonment for a period of one month. The appellant further directed to sentence under section 279 IPC for the period of one month rigorous imprisonment.
2. The appellant/petitioner preferred to file the present appeal with the contention that the trial court has passed the judgement and order on sentence which is prima facie illegal, unwarranted, unlawful, perverse and contrary to the facts and law and not appreciated the evidence on record in right and just perspective. There is a material irregularity and illegality in the judgement which has resulted in miscarriage of justice. The Trial Court passed order on sentence on the basis of surmises and conjectures and has grossly erred in convicting the petitioner. The prosecution has miserably failed to prove the case beyond all reasonable doubts, and as such, the Trial Court should have given the benefit of doubt to the appellant as it is a settled law that where there are two views are possible, the view favourable to the accused should be given weightage.
3. The appellant relied upon the Supreme Court's case titled as Narendra Singh Vs State of M.P. reported as 2004 Crl L.J. 2842, wherein it CA No. 189/2017 Kuldeep Sharma Vs State page no. 2 of 15 has been held that 'presumption of innocence is a human right', however, in the present case, it appeared that the Trial Court was presumed everything against the appellant as if the presumption of law if favourable to the prosecution only. The court must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. The Trial Court ignored the fact that the version of the prosecution has not been corroborated in material particulars. There is nothing on record that the appellant was driving the vehicle in a rash and negligent manner. PW1 has deposed in his examination in chief that they were checking vehicles from side of Gurgaon by using barricades but as per the site plan, they were checking vehicles from the side of Lado Sarai, Mehrauli. They noticed that one of white colour Tata Qualis bearing registration No.HR 55 AT 7578 came from the side of Lado Sarai at a high speed. There is no evidence of driving the vehicle in a rash and negligent manner. The message in wireless was to the effect that vehicle No. HR 55 AT 2578 had caused accident but the impugned vehicle bearing No. is HR 55 AT 7578.
4. PW7 Retired SI Phool Chand deposed in his examination in chief that he had received the message that vehicle No. HR 55 AT 2578 was CA No. 189/2017 Kuldeep Sharma Vs State page no. 3 of 15 going towards Gurgaon after causing accident. He also failed to identify the accused as driver in the court. He had also received information that vehicle No. HR 55 AT 2578 had caused accident and he has not clarified the offending vehicle No. is HR 55 AT 7578 had caused accident but as per the judgement, he admitted that offending vehicle no. is HR 55 AT 7578 had caused accident. PW7 also deposed that Ct. Sher Singh had deposed before the court that ASI Phool Chand were given information to him about vehicle No. HR 55 AT 2578. The trial court wrongly interpreted section 304 A IPC to hold the petitioner guilty because to impose criminal liability under section 304 A IPC, which is necessary that the death should have been due to the result of rash and negligent act of the petitioner. It must be causa causans and not enough that it may have been causa sine qua none. The Trial court failed to appreciate that the connection between the incident and default of the petitioner is too remote to bring out any criminal liability. The material placed on record did not indicate any nexus between the petitioner and the alleged rash and negligent act. The applicant has two small children and parents and the appellant is the only earning person in his family and his entire family is dependent upon him. The conduct of the appellant is also relevant as he did not ran away from the place of the occurrence of the incident. It is, therefore, CA No. 189/2017 Kuldeep Sharma Vs State page no. 4 of 15 prayed that the judgment passed by the Trial court may be set aside and the appellant may be acquitted.
5. On assignment of the appeal, the notice of this appeal was issued to the respondents and trial court record was also summoned.
6. Having heard the arguments of the Ld. Addl. PP for the State and the Ld. counsel for the appellant as well as gone through the material on record.
7. In order to bring home guilt of the accused/appellant under section 279/304A IPC the prosecution has to establish the following ingredients:
(i) Presence of the accused/appellant on the date, time and place of occurrence.
(ii) There must be rash and negligent act.
8. In the instant case, the appellant in his statement U/sec. 294 Cr.P.C. has not disputed the genuineness of the FIR No.523/03 dated 06.11.2003 DD entry bearing No.39A and 40A dated 06.11.2003 and 76B dated 06.11.2003, MLC bearing No.130736/03 dated 06.11.2003, mechanical inspection report dated 06.11.2003, postmortem report bearing No.1163/03 dated 07.11.2003, dead body identification statements of Som Nath and CA No. 189/2017 Kuldeep Sharma Vs State page no. 5 of 15 Dharampal, both dated 07.11.2003. It is admitted that vehicle bearing No.HR 55 AD 7578 (Toyota Qualis Jeep) was released on superdari to the AR from M/s Deneb & Pollux Tours and Travels Pvt. Ltd. vide superdarinama dated Nil, Ex. S. It is further admitted that he did not want the physical production of the above said vehicle/ case property and superdarinama may be used for said purpose during further proceedings of the case.
9. Keeping in view of the statement under section 294 and the statement under section 313 Cr.P.C. on 25.04.2017, whereby admitted his presence at the actual time and place of accident and also cause an accident but denied to have any negligent and rash act. He had admitted the FIR 523/03 DD No. 39, 40A, 76B, MLC, Postmortem report, dead body identification statements of Som Nath and Dharampal. These DD entries and the statements made by the accused/appellant to this case just need not to prove otherwise the same has been proved in the testimony of the prosecution witnesses and as well as admitted that the accident was caused with the offending vehicle bearing No. HR 55 AT 7578.
10. The next contention raised by the counsel for the applicant that the offending vehicle was not at a high speed. The trial court while deciding the issues have also considered this aspect. PW1 Ct Pawan Kumar stated CA No. 189/2017 Kuldeep Sharma Vs State page no. 6 of 15 that on the night of 05/06.11.2013, he was checking the vehicle coming from the side of Gurgaon by placing barricades. One Tata Qualis car of white colour bearing No. HR 55 AT 7578 came from the side of Lado Sarai and it was being driven at high speed. PW6 has deposed that on 06.11.2003, he reached at Anhisa Sathal where CT. Pawan Kumar told him that one taxi qualis bearing registration No. HR 55 7578 has hit HC Thuru Ram who was on picket duty with him and that taxi has fled away towards Gurgaon. He shifted the injured HC Thuru Ram to AIIMS hospital and flashed the wireless message about the incident. PW3 Ct. Sher Singh deposed that the message was sent through wireless set and the information was given by ASI Phool Chand. ASI Phool Chand had informed them about the said vehicle No. HR 55 AT 2578. PW4 Inspector/SI R.N. Chaudhary deposed and he along with Ct. Dharambir reached at the spot i.e. Ahimsa Sthal Picket,. M.G. Road, Mehrauli, where they met Pawan Kumar who informed that injured HC Thuru Ram was shifted to hospital by Sh. Amrik Singh. PW7 retired SI Phool Chand in his cross examination admitted that the said vehicle caused the accident. Though, on the contrary, the accused in his statement U/sec. 294 Cr.P.C. and statement U/sec. 313 Cr.P.C. had admitted his presence at the spot, though it was on the negligence of the deceased as the offending vehicle was in the normal speed and the deceased himself came under the offending vehicle.
CA No. 189/2017 Kuldeep Sharma Vs State page no. 7 of 15 So far as the identification of the accused/petitioner, same is not disputed. The petitioner has also admitted that the MLC report, death summary as well as the postmortem report and the same are caused by the offending vehicle resulted into road traffic accident.
11. The counsel for the appellant during the course of arguments has not disputed the presence of the appellant at the time, date and place of accident nor disputed the identity of the offending vehicle, however, stated that the PW7 ASI Phool Singh had deny to identify the appellant as well as also given wrong description of the registration number. He admitted the documents prepared during investigation MLC etc., in his statement recorded under Section 294 & 313 Cr.PC. He also admitted his presence and the offending vehicle at the time of accident. The learned trial Court in its judgement also analysed that there is no scope of any doubt with regard to the information given that the vehicle no. HR 55AT 7578 was fleeing away away after causing accident. PW7 Retired SI Phool Chand while in is examination asked to identify the accused. He was looking around for the accused even under the table, here and there, but from his demeanour, it was observed that no prudent person having sound mental faculties such as him, would have looked for the accused under the table. It reflected the malafidely of the witness, who deliberately could not identify the accused and CA No. 189/2017 Kuldeep Sharma Vs State page no. 8 of 15 deliberately looked under the table. Though the identity of the accused/appellant at the time of the accident and the offending vehicle has been categorically being supported consistently in the testimonies of other witnesses as well as in the statement recorded under section 294 Cr.PC and statement recorded under section 313 Cr.PC. On 21.09.2016 when the statement under section 294 Cr.PC was recorded, this contention raised by the counsel that there was no rash and negligent driving of the offending vehicle, nor the vehicle was at a high speed. To this effect the the judgement of Apex Court titled as Ravi Kapur vs. State of Rajasthan, 2012 AIR SCW 4659 : AIR 2012 SC 2986 is referred wherein Apex Court has observed that, a person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result and that it may always possible to determined with reference to the speed of a vehicle whether a person was driving rashly and negligently and that even when one is driving a vehicle at slow speed, but, recklessly and negligently, it would amount to rash and negligent driving within the meaning of the language of Section 279 I.P.C. Mere driving of a vehicle at a 'high speed' or 'slow speed' do not lead to an interference that negligent or rash driving had caused the accident result in injuries to the complainant. In fact the speed is not criteria to establish the fact of rash and CA No. 189/2017 Kuldeep Sharma Vs State page no. 9 of 15 negligent driving of a vehicle. Absence of rash speed itself cannot absolve the petitioner. It has been observed in Mehnga Singh v. State, 2012 CrLJ4930 (Del) wherein it was held that , where the accused came driving canter at a very fast speed in rash and negligent manner and dashed against victim girls resulting to death of one and injuries to another, relying on the testimony of complainant, Court convicted the accused under Section 304A. In Sanjay Rambhau Patil v. State of Maharashtra 2010 CrLJ 1407 (Bom), the accused drove the vehicle ignoring the signal given to stop the bus by a police officer in uniform. There was absolutely no turn or bend on the road which could have prevented the accused from noticing the victim in uniform on road. Accident occurred on account of rash and negligent act of applicant/accused and led to death of victim. Conviction of accused is held proper by Bombay High Court.
12. In a case, the accident occurred at public place. There were speed breaker near the place of accident. In spite of seeing the public and speed breakers, accused did not reduce the speed of lorry. Court found the accused holding that sufficient circumstances available on record to prove that accused had driven the lorry in rash and negligent manner at high speed. The State alleged that accused was driving a Jeep in rash and negligent CA No. 189/2017 Kuldeep Sharma Vs State page no. 10 of 15 manner resulted in to death of complainant's daughter and injuries to complainant and his wife. Witness clearly stated that the Jeep was driven by petitioner. Karnataka High Court confirmed the conviction under Section 304A I.P.C as the same has been observed in Krishan Singh v. State of H.P. 2010 CrLJ 3048 (Kar) : 2010 (2) ShimLC 368; State of Karnataka v. Kumayian, 2010 CrLJ 3376 (Kar).
13. The general presumption of innocence of accused is also available even to an accused chargesheeted for rashness and negligence in driving a motor vehicle which resulted in injury or loss of life to a pedestrian or others. Simply because an accident happened which resulted in death on injury to somebody it cannot be taken for granted that the driver of the vehicle involved in the accident is guilty of crime. There may however be exceptional cases where the rule res ipsa locuitur applies. In such cases proved facts and circumstances may speak for themselves. Ordinarily it is for the prosecution to establish the guilt of the accused. The prosecution is to prove only and only the rashness or negligence of driver but also must prove the rashness or negligence is responsible for the accident and consequent injury on or death of the victim. There can be no presumption of negligence from the mere fact that a man is knocked down and killed by a motorist. CA No. 189/2017 Kuldeep Sharma Vs State page no. 11 of 15
14. In the instance case, PW1 Ct. Pawan Kumar and deceased HC Thuru Ram were posted as Ahinsa Sthal Picket and on the intervening night of 0506.11.2013, were checking the vehicles coming from the side of Gurgaon by placing barricades. At about 3:003:15 am, one Tata Qualis car of white colour bearing registration no. HR 55AT 7578 came from the side of Lado Sarai, which struck against HC Thuru Ram. The deceased HC Thuru Ram, due to which fell down on the road. The offending vehicle fled away towards Gurgaon. A message was flashed through wireless set and the injured was removed to the hospital. Within 1520 minutes, ASI Phool Singh apprehended the offending vehicle and its driver Kuldeep Sharma, who was identified as the driver of the offending vehicle. Mechanical inspection of the offending vehicle was carried out by PW4 Inspector R.N. Chaudhary with the assistance of Ct. Dharamvir. The MLC bearing No. 130736/03 dated 06.11.03, postmortem report no. 1163/03 dated 07.11.03, mechanical inspection report dated 06.11.03, dead body identification statements of Somnath and Dharampal dated 07.11.2003 admitted by the accused. So far as the nature of injuries as reflected from the MLCs and the postmortem report proved the injury as being caused by the blunt force impact, which could be only by the vehicular incident which has not been ruled out in any manner. Therefore, there is no iota of evidence to disbelieve the testimony of CA No. 189/2017 Kuldeep Sharma Vs State page no. 12 of 15 prosecution witnesses. They may be police officials, but they were the eye and ear of the incident and they have narrated the incident minutes to minutes and more over after a period of more than 11 years have been lapsed. The judgement passed by the learned trial Court is well reasoned and every angle of the ingredients of Section 304A IPC has been considered into the evidence led by the prosecution as well as the documents prepared during the investigation. There is no illegality or infirmity in the judgement of conviction under Section 304A IPC passed by the learned trial Court dated 29.04.2017.
15. So far as the order on sentence dated 27.06.2017 is concerned, the convict is sentenced to undergo R.I. of two years and pay a compensation of Rs. 50,000/ to the legal heirs of deceased HC Thuru Ram for commission of offence under Section 304A IPC and default of payment of compensation, S.I. of one month. He is further sentenced to undergo R.I. for one month for commission of offence under section 279 IPC. The appellant has prayed for a lenient view submitting that he has been facing trial for more than 11 years. It is submitted that appellant is also having two minor children and being only earning member of his family. The learned trial Court has relied upon the Law Commission of India report while being sentencing to the appellant wherein it was being reported that , "A proper sentence is a composite of many factors, including CA No. 189/2017 Kuldeep Sharma Vs State page no. 13 of 15 the nature of the offence, the circumstanceextending or aggravatingof the offence, the prior criminal record, if any, of the offender, the age of the offender, the professional and social record of the offender, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospect for the rehabilitation of the offender, the possibility of a return of the offender to normal life in the community, the possibility of treatment or of training of the offender, the possibility that the sentence may serve as a deterrent to crime by this offender, or by others, and the present community need, if any, for such a deterrent in respect to the particular type of offence involved."
16. Therefore, considering the totality of the facts and mitigating circumstances, the sentence of two years for the commission of offence under Section 304A IPC is too harsh as issue while being sentencing appellant will go into custody of Court. It will actually a sentence not only to him but also to the family members of the appellant.
17. Therefore, considering the mitigating circumstances and in interest of justice, the sentence is reduced to six months for the offence u/s 304 A IPC and the compensation to the dependants of the legal heirs of deceased is enhanced to Rs. 1 Lac, in default of the same to undergo SI for one month. Apart from one month, the appellant is sentenced to one month CA No. 189/2017 Kuldeep Sharma Vs State page no. 14 of 15 simple imprisonment for the offence punishable under section 279 IPC. Both the sentence shall run concurrently. The order on sentence passed to meet the ends of justice. Accordingly, the appeal stands disposed of.
18. The Trial Court Record be sent back the trial Court along with the copy of this order.
19. The appellant is directed to surrender before the trial Court within two weeks' time to undergo the sentence as awarded.
20. File be consigned to Record Room.
(Announced in open (Dr. Satinder Kumar Gautam)
Court on 06.10.2017) Special Judge (NDPS)
South District: Saket
CA No. 189/2017 Kuldeep Sharma Vs State page no. 15 of 15