Delhi District Court
State vs . Pawan Kumar Fir No. 367/00, U/S : ... on 16 May, 2014
State Vs. Pawan Kumar FIR No. 367/00, U/s : 279/337/338/304 A, PS Model Town
IN THE COURT OF SH. SUNIL KUMAR, METROPOLITAN
MAGISTRATE, ROHINI COURTS, DELHI.
FIR No. 367/00
PS. Model Town
U/s.279/337/338/304A IPC
State Vs. Pawan Kumar
JUDGMENT
A. SL. NO. OF THE CASE : 163/01
B. DATE OF INSTITUTION : 04.07.2001
C. DATE OF OFFENCE : 25.06.2000
D. NAME OF THE : SI Ashish Kumar
COMPLAINANT
E. NAME OF THE : Pawan Kumar
ACCUSED S/o Sh. Swaroop Singh
F. OFFENCE COMPLAINED OF: U/s 279/337/338/304 A IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Convicted
I. DATE OF SUCH ORDER : 16.05.2014.
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case, as alleged by the prosecution and as unfolded from chargesheet are that on 25.06.2000 at about 10:50 AM, at Azadpur Bus Terminal Stand, Ring Road, Delhi, the accused was found driving the offending vehicle i.e. bus bearing No. DL1PA4384 in a rash and negligent manner and at a high speed, so as to endanger the human life and personal safety of others and while Page No. 1 State Vs. Pawan Kumar FIR No. 367/00, U/s : 279/337/338/304 A, PS Model Town driving the aforesaid vehicle in aforesaid manner, he hit his vehicle against a TSR bearing No. DL1RC4639 and caused simple injuries to Smt. Sarveshwari and Smt. Rekha and caused grievous injuries on the person of Smt. Urmila and while doing so in the aforesaid manner, caused death of Rahmat Ali and Baby Varsha not amounting to culpable homicide. On the basis of DD No. 7A regarding accident, the present FIR U/s 279/337/338/304A IPC was registered at PS Model Town, Delhi. The accused was arrested at the spot. During investigation, the minor baby namely Varsha and Rehmat Ali succumbed to the injuries sustained by them in the said accident and the concerned doctors opined that the nature of the injuries received by Smt. Urmila were grievous and the nature of injuries received by Smt. Rekha and Sarveshwari were simple. On conclusion of investigation, the challan under sections 279/337/338/304A IPC was filed in the court.
2. The accused was summoned by the court for facing trial for the aforesaid offences. In compliance of Section 207 Cr.P.C the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge U/s 279/337/338/304A IPC was made out against the accused. Accordingly, on 17.01.2002, the Ld. Predecessor of this court framed charge against the accused. The accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined nine witnesses.
4. Sh. Pranav Kumar (PW1) was examined being the registered owner of the offending vehicle i.e. bus No. DL1PA4384. He has deposed that accused has caused accident. He has proved the reply of Page No. 2 State Vs. Pawan Kumar FIR No. 367/00, U/s : 279/337/338/304 A, PS Model Town the notice as Ex.PW1/A and superdarinama Ex.PW1/B vide which, he got released the offending vehicle i.e. bus. This witness was not cross examined by Ld. Defence counsel despite giving an opportunity in this regard.
5. Retd. HC Chand Gram (PW2) is a formal witness who proved the rukka prepared at DD as Ex.PW2/A, upon which FIR was registered. The endorsement upon the rukka as Ex.PW2/B and the order of DCP vide which, the record of DD of 2000 has been destroyed as Ex.PW2/C. This witness was not crossexamined by Ld. Defence counsel despite giving an opportunity in this regard.
6. HC Vijender Singh (PW3) has proved the proceedings conducted by him on the spot alongwith IO/SI Ashish Kumar and Ct. Ramesh. They noticed a bus bearing registration No. DL1PA4384 and a TSR bearing No. DL1RC4639 in accidental condition. By then, the injured persons were shifted to HRH by PCR. Thereafter, he alongwith SI Ashish went to HRH after leaving Ct. Ramesh at spot and collected MLCs of the injured persons. Case was registered, site plan was prepared. Both the vehicles were seized vide seizure memo as Ex.PW3/A & Ex.PW3/B, driving license of injured/ deceased Rehmat Ali was taken into possession vide memo Ex.PW3/C, insurance of TSR was taken into police possession vide memo Ex.PW3/D. Post mortem over the bodies of Rahmat Ali and Varsha were got conducted. Notice u/s. 133 of M.V. Act was served upon the owner of the offending vehicle namely Sh. Pranav Kumar, in compliance thereof, he produced the bus. Thereafter, the accused was arrested and personally searched vide memos Ex.PW3/E & Ex.PW3/F. The RC and insurance certificate of the offending vehicle i.e. bus was taken into police possession vide memo Ex.PW3/G & Ex.PW3/H. The driving license of accused was also taken Page No. 3 State Vs. Pawan Kumar FIR No. 367/00, U/s : 279/337/338/304 A, PS Model Town into possession vide memo Ex.PW3/J. Both the vehicles were got mechanically inspected. The spot was got photographed from different angles. The photographs of the TSR and offending bus are collectively Ex.P1 to Ex.P7. This witness was not crossexamined by Ld. Defence counsel despite giving an opportunity in this regard.
7. Smt. Urmila being the injured was examined as PW4, who has stated that on 25.06.2000, she alongwith her mother Smt. Sarveshwari, younger sister Rekha and her niece the daughter of her elder sister Baby Versha were going to Kirti Nagar in the TSR, the number of which, she does not remember. On the way, a vehicle hit against another stationery bus ahead of TSR and as a result of which, she became unconscious and regained consciousness after about 3 months and after about 3/4 years, she came to know that her niece Versha had succumbed to her injuries. However, she stated that she had not seen the face of the driver of the offending vehicle. Thereafter, this witness was cross examined by Ld. APP for State wherein she admitted that the abovementioned bus immediately stopped. This witness was cross examined by Ld. Defence counsel.
8. Smt. Sarveshwri being the injured was examined as PW5 and she has deposed on the similar lines as that of PW4. Therefore, his testimony that is in consistence with PW4 is not repeated herein for the sake of brevity and to avoid repetition. She testified that she regained consciousness in Irvin Hospital on the same day and stated that her grand daughter Versha and the driver of TSR succumbed to their injuries. This witness was also crossexamined by Ld. APP for State. In her examination by Ld. APP, she stated that she could not recognize the accused, as she had not seen his face at the time of accident. This witness was not crossexamined by Ld. Defence counsel.
Page No. 4State Vs. Pawan Kumar FIR No. 367/00, U/s : 279/337/338/304 A, PS Model Town
9. Ms. Rekha Sharma being the injured was examined as PW6, who has deposed on the similar lines as that of PW4 & PW5. However, PW6 has stated that he had seen the face of the driver of the bus who ran away from the spot after the accident. This witness was not cross examined by Ld. Defence counsel despite giving an opportunity in this regard.
10. Sh. Rajesh Kumar being the Record Clerk of Sushruta Trauma Centre was examined as PW7, who has testified the MLCs of injured Urmilla and Sarveshwari as Ex.PW7/A & Ex.PW7/B prepared by Dr. P.N. Pandey. The MLCs were opined as to nature of injury as grievous and simple. This witness has also proved the xray report of injured Urmila and Sarveshwari conducted by Dr. Gaurav on 25.06.2000, the said reports are Ex.PW7/C & Ex.PW7/D. This witness was not cross examined by Ld. Defence counsel despite giving an opportunity in this regard.
11. Sh. K.V. Singh being the Record Clerk at HRH was examined as PW8, who has testified the MLCs of all the remaining injured persons as Ex.PW8/A to Ex.PW8/C prepared by Dr. Amit Diwan. This witness has further proved the postmortem reports of deceased Rehmat Ali and baby Versha vide Ex.PW8/D & Ex.PW8/E. This witness was not cross examined by Ld. Defence counsel despite giving an opportunity in this regard.
12. SI Ashish Kumar was examined as PW9. He has deposed on similar lines as that of PW3 Ct. Vijender. Therefore, his testimony is not repeated herein for the sake of brevity and to avoid prolixity/verbosity. Thereafter, PE was closed.
Page No. 5State Vs. Pawan Kumar FIR No. 367/00, U/s : 279/337/338/304 A, PS Model Town
13. The statement of the accused U/s 313 Cr. P. C. was recorded. In the said statement all the incriminating evidence against the accused were put to him for seeking his explanation. He has stated that he is innocent and he has been falsely implicated in the present case. He has stated that the accident did not take place with his alleged offending vehicle/ bus, as he had parked his bus and had gone to take tea and later on, he was falsely implicated in the present case. Thereafter, the matter was listed for defence evidence.
14. The Ld. APP for State has moved an application u/s 311 Cr.P.C. for summoning Dr. Dinesh Kumar, who had conducted postmortem over the bodies of Rehmat Ali and baby Versha. Thereafter, PW8 his K.V. Singh was reexamined and he has proved the postmortem reports as Ex.PW8/D & Ex.PW8/E. Thereafter, supplementary statement of accused was recorded u/s. 313 Cr.P.C wherein he stated that he wish to lead evidence in his defence. He reiterated his aforesaid defence on oath and denied his culpability. Sh. Khushi Ram was examined as DW1 being the conductor at the offending bus, who stated that on the day of incident in the year 2012, at around 11:00 AM, he alongwith accused Pawan Kumar were present at Azadpur bus terminal and went to take tea as there was 10 minutes gap in next trip and after 3/4 minutes, he heard the noise about an accident and after reaching the spot saw that one TSR had hit his bus from backside and somebody was expired. This witness was crossexamined by Ld. APP for State. Thereafter, DE was closed and matter was listed for final arguments.
15. I have heard Ld. APP for the state and Ld. counsel for the accused . I have carefully perused the case file.
Page No. 6State Vs. Pawan Kumar FIR No. 367/00, U/s : 279/337/338/304 A, PS Model Town
16. The cardinal principle of criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
17. Prosecution is required to prove the following ingredients to establish the guilt of the accused U/s 279/337/338/304 A IPC:
(i) The accused was driving his vehicle on a public way;
(ii) Death of any person/grievous injury to any person/simple injuries to any person must have been caused;
(iii) It must have been caused by rash or negligent act/driving of the accused; and
(iv)Such death must not amount to culpable homicide.
18. To impose criminal liability under this section it is necessary that the death should have been the direct result of a rash or negligent act of the accused, and that act must be the proximate cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non. Culpable rashness is acting with consciousness that the mischievous and the illegal consequence 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. 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 required of him, and that if he had he would have had the consciousness. Rash or negligent act is an act done not intentionally or designedly. A rash act is primarily an overhasty act, and is thus opposed to a deliberate act, but it also includes an act which, though it Page No. 7 State Vs. Pawan Kumar FIR No. 367/00, U/s : 279/337/338/304 A, PS Model Town may be said to be deliberate is yet done without due deliberation and caution. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. Negligence is the genus of which rashness is a species. In order that rashness or negligence may be criminal it must be of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be caused thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences.
19. In the case in hand, the accused has been duly identified by the injured PW6 Ms. Rekha Sharma. Further, the accused in his statement U/s 313 Cr.P.C. has also admitted that he was driving the offending vehicle. Therefore, the testimony of the aforesaid PWs regarding the identity of the accused has been duly corroborated by the statement of the accused. Hence, there is no doubt regarding identity of the accused. In the similar fashion identity of the offending vehicle i.e. bus bearing No. DL1PA4384 has also been established beyond any reasonable doubt.
Besides that, PW8 has proved the MLC of the deceased Rehmat Ali as Ex. PW8/B and Baby Versha as Ex.PW8/B. PW7 and PW8 have also proved the MLC of other injured persons as Ex.PW7/A & Ex.PW7/B, the xray reports as Ex.PW7/C & Ex.PW7/D and MLCs Ex.PW8/A to Ex.PW8/C. It is convincingly established from the testimonies of PW7 and PW8 coupled with the testimony of eye witness/injured PW6 Smt. Rekha that the deceased Versha died in the accident that was committed by the accused. The fact that baby Versha died due to fatal injuries sustained by her in the present road traffic accident is proved by the ocular testimonies of the prosecution Page No. 8 State Vs. Pawan Kumar FIR No. 367/00, U/s : 279/337/338/304 A, PS Model Town witnesses as well as by the MLC of baby Versha. Moreover, the death of the deceased in the alleged accident has not been denied by the accused. In view of the above discussion, not only the identity of the accused and identity of the offending vehicle but also the fact that the baby Versha and Rehmat Ali succumbed to their injuries, injured Urmila received grievous injuries and injured Rekha and Sarveshwari have received simple injuries respectively in the accident as alleged by the prosecution, have been duly established beyond any shadow of doubt. Further, the accident took place on Azadpur Bus Terminal, Delhi and the same is admittedly a public way.
20. Thus, the only point of contention in the instant case is whether the accused was driving his vehicle in a rash or negligent manner or not. In that regard only eyewitness/ injured that has been examined by the prosecution is PW6 Ms. Rekha, who has categorically testified that the accused had suddenly stopped his bus at the main road, thereupon the following TSR rammed into the said bus. The witness examined by the accused being conductor of the said bus / offending as DW1 and he has testified that he alongwith accused had gone to take tea after parking their bus at Azadpur bus terminal. The said testimony of the DW1 as well as of accused u/s. 313 Cr.P.C does not inspire confidence as the present accident in aforesaid manner would not have taken place at a stationery bus. The fact that the TSR rammed into the offending bus, reflects that the accused was present in the bus and he would have stopped his bus suddenly at main road. The eyewitness / injured PW6 Ms. Rekha has stated that he had seen the face of the accused while running away from the spot at the time of accident. A reasonable man ought to have been more circumspect and cautious in driving his vehicle. However, in the present case, the accused culpably omitted to take the aforesaid requisite precaution and drove his vehicle negligently by Page No. 9 State Vs. Pawan Kumar FIR No. 367/00, U/s : 279/337/338/304 A, PS Model Town stopping it immediately. There is no reason to disbelieve the testimony of PW6 regarding the rash and negligent act of the accused. The scene of accident manifests that the accused failed to take due deliberation and caution while driving. The manner in which the accident took place and the harrowing consequences that followed it, can lead to only one inescapable inference that the accused was culpably rash and negligent. Moreover, the legal maxim "res ipsa locquitor" i.e. the things speaks for themselves further fortifies the allegations of the prosecution regarding the rash and negligent act of the accused. The accident could not have resulted in unfortunate death of a child and the TSR driver, had the accused would have taken sufficient precautions that were expected and required from him as a reasonable and prudent man confronted with the same situation. Hence, his act/driving is duly established to be criminally rash and negligent.
21. In view of the above discussion, the prosecution has proved all the essential ingredients of section 279/337/338/304A IPC beyond any reasonable doubt by leading convincing and clinching evidence against the accused. Hence, the accused is hereby convicted U/s 279/337/338/304A IPC.
ANNOUNCED IN OPEN COURT TODAY i.e. 16.05.2014 (SUNIL KUMAR) METROPOLITAN MAGISTRATE ROHINI COURTS: DELHI Page No. 10