Delhi District Court
Mohd. Zakir Hussain vs The State, Nct Of Delhi on 16 November, 2023
-: 1 :-
IN THE COURT OF MS. SHEFALI SHARMA:
ADDL. SESSIONS JUDGE-02( NORTH ):
ROHINI DISTRICT COURTS : DELHI
In the matter of:-
New CA No. 151/2017
Mohd. Zakir Hussain
S/o Mohd. Matibar Akman
R/o H.No. 98, Gali No.3,
Sanjay Nagar, Mahendra Park,
Delhi.
..... Appellant
Versus
The State, NCT of Delhi.
..... Respondent
Date of institution 29.11.2017
Arguments concluded on 08.11.2023 &
16.11.2023
Judgment Pronounced on 16.11.2023
JUDGMENT
1. The present appeal has been filed by the appellant/convict under Section 374(3) Cr.P.C. against the judgment of conviction dated 25.08.2017 and order on sentence dated 31.10.2017 passed by Ld. MM, North, Rohini Courts thereby convicting the appellant/convict as under:
(i) to undergo RI for a period of 06 CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 1 of 19 -: 2 :- months for the offence punishable under Section 279 IPC.
(ii) to undergo RI for a period of 01 year for the offence punishable under Section 304A IPC.
Appellant was ordered to pay Rs.60,000/- as compensation to the LRs of the deceased Yaar Mohd., out of which Rs.20,000/- as compensation to legal representatives of deceased under Section 357(3) Cr.P.C and remaining compensation amount of Rs.40,000/- to the LRs of the deceased and in default of payment of compensation, to further undergo Rigorous Imprisonment for a period of three months.
2. Brief facts of the case are that on 27.07.2000 at about 4.00 P.M. at Mangal Bazar Road, near Narula Photo Studio, Jahangir Puri, Delhi, accused (appellant herein) was found driving the offending vehicle bearing registration no.DL- 1SC-1269 on a public way in a rash and negligent manner and at a high speed, so as to endanger the human life and personal safety of other and while driving the aforesaid vehicle in the aforesaid maner, caused death of one person namely Yaar Mohd. That on the basis of DD No.9B regarding accident, the present CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 2 of 19 -: 3 :- FIR under Section 279/304A IPC was registered and on conclusion of the investigation, charge-sheet was filed in the court.
CHARGE
3. Vide order dated 28.03.2006, notice for the offence punishable under Section 279/304A IPC was served upon the appellant/accused to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed for prosecution evidence and in order to prove its case, the prosecution has examined 14 witnesses.
PROSECUTION EVIDENCE
4. PW-1 HC Om Prakash was the duty officer at the relevant time and on 28.07.2000 at about 5.15 a.m. received a rukka and on the basis of the same registered the present FIR Ex.PW1/A and made endorsement on tehrir Ex.PW1/B. He further deposed that the information received from Trauma Centre was entered in roznamcha at sl. no.9B at about 1.55 a.m. which is Ex.PW1/C. PW-2 Ajay Mehra is the registered owner of the offending vehicle bearing no. DL-1SC-1269 and deposed that on 27.07.2000, appellant Mohd. Zakir Hussain was driving the aforesaid vehicle and he served with notice under Section 133 M.V. Act and he replied the same vide Ex.PW2/A. He further deposed that the vehicle was taken on superdari by him vide CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 3 of 19 -: 4 :- Ex.PW2/A. PW-3 Sadhu Ram is the complainant. He has deposed that he is illiterate and does not remember the exact date, month or year of the incident and he is carpenter by profession. He further deposed that on the day of incident, one person namely Yaar Mohd. came to him for making wooden stool near Mangal Bazar at foothpath and at about 4.00 p.m. when Yaar Mohd. started to go to his house on his bicycle and as soon as he reached towards Mangal Bazar Chowk, a scooter came there from the side of Mangal Bazar Chowk with fast speed and in rash and negligent manner and hit against the bicycle of Yaar Mohd. from front side.
He further deposed that due to this accident, Yaar Mohd. Fell down on the road and the scooterist was apprehended by the public persons on the spot, however, he somehow managed to flee away from the spot and at that time, he noticed the face of the driver of the scooter. He further deosed that the injured was first of all taken to BJRM Hospital and from there, he was referred to Trauma Centre where he took the injured in a TSR. That in the Trauma Centre, PW3 narrated the incident to police vide his statement Ex.PW3/A and bicycle was taken into possession by police vide memo Ex.PW3/B. He further deposed that later on he came to know that the scooterist was arrested and his scooter was also taken into possession by police vide memo Ex.PW3/C. PW3 identified the driver, who was arrested and CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 4 of 19 -: 5 :- personally search vide memos Ex.PW3/D and Ex.PW3/E respectively.
The examination of PW3 was conducted under Section 299 Cr.P.C. as the accused was declared as Proclaimed Offender vide order dated 26.04.2012 upon his non appearance.
PW-4 ASI Suresh Kumar being the IO of the case has deposed on the lines of investigation conducted by him. He deposed that on 28.07.2000, on receipt of copy of DD Bno.9B regarding accident, he along with Ct. Parmod went to spot and from there to Trauma Centre to collect the MLC of the injured Yaar Mohd., who was declared unfit for statement by the concerned doctor.
He further deposed that in the Trauma Centre, he met with eye witness Sadhu Ram, whose statement was recorded by him, upon which prepared rukka Ex.PW4/A and sent Ct. Parmod for registration of the FIR. He further deposed that thereafter, he along with Sadhu Ram went to the spot and prepared site plan Ex.PW4/B at his instance. He has also taken into possession the bicycle of Yaar Mohd. produced by Sadhu Ram.
PW4 further deposed that on 29.07.2000 injured succumbed to his injuries and postmortem on his dead body was conducted at Subzi Mandi Mortuary. He further deposed that he verified the ownership the scooter from concerned authority and on 08.08.2000, he served a notice under Section 133 MV Act, CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 5 of 19 -: 6 :- upon the owner of the scooter Sh.Ajay Mehra vide Ex.PW4/C. That in pursuance to the said notice, Sh.Ajay Mehra produced the accused, scooter and relevant documents. That the scooter was taken into possession and other documents were seized by him vide memo Ex.PW4/D. He has also arrested the accused and personally searched him.
He further deposed that mechanical inspection of the scooter ws got conducted through Retd. SI Jai Singh vide his request Ex.PW4/E and he received the report Ex.PW4/E1. He further deposed that he collected the postmortem report, recorded the statement of the witnesses and prepared the charge-sheet.
The examination of PW4 was conducted under Section 299 Cr.P.C. as the accused was declared as Proclaimed Offender vide order dated 26.04.2012 upon his non appearance.
PW5 Mr. Jameel Ahmed is the son of deceased Yaar Mohd. and deposed that upon information regarding the accident by telephone from his neighbour, on 31.07.2000, he reached at Trauma Centre, Civil Hospital, Subzi Mandi and identified the dead body of his father namely Yaar Mohd. and received the dead body vide memo Ex.PW5/A. PW6 Mr. Ashraf is the son-in-law of deceased Yaar Mohd. and deposed that upon information regarding the accident by telephone from his neighbour, on 31.07.2000, he reached at Trauma Centre, Civil Hospital, Subzi Mandi and identified the dead body of his father-in-law namely Yaar Mohd. He further CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 6 of 19 -: 7 :- deposed that the dead body of his father in law was handed over to his son Jameel.
PW7 ASI Karan Singh has deposed that on 28.07.2000, he along with HC Suresh Kumar and complainant Sadhu Ram went to B-12, Adarsh Nagar, where one person namely Ajay Mehra met them and he took them to C-17 where accused Mohd. Jakir was working and complainant identified him there. He further deposed that the offending scooter was also identified by the complainant and the scooter and RC were seized. He further deposed that accused was arrested and personally searched.
PW-8 Retd. SI Kanwar Lal deposed that on 31.07.2000, investigation of the present case was marked to him and relatives of deceased namely Jameel and Ashraf met him. He further deposed that the dead body of deceased was identified by PWs Jameel and Ashraf in the mortuary vide memos Ex.PW8/A and Ex.PW8/B. He has proved the inquest proceedings Ex.PW8/C. He further deposed that after postmortem, dead body of deceased was handed over to his relatives.
PW9 Dr.S.R. Malik deposed that on 27.07.2000 at about 1.30 p.m. one injured namely Yaar Mohd. came to his clinic with his known person with injury in his head in accident with scooter. He was given first aid and advised x-ray skull AP lateral views and further advised him to get further treatment at CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 7 of 19 -: 8 :- government hospital being a case of head injury. He has proved the prescription slip Ex.PW9/A. PW10 Sh.Rajesh Kumar, Record Clerk, Sushrut Trauma Centre, deposed tat on 28.07.2000 at about 1.35 a.m., one patient namely Yaar Mohd. Was brought to Trauma Centre, who was examined by Dr.J.P. Sharma. He has proved the MLC of Yaar Mohd. as Ex.PW10/A.
5. Summons were again issued to PW3 Sadhu Ram and PW4 ASI Suresh Kumar for their re-examination, as they were earlier examined under Section 299 Cr.P.C., when accused was P.O. But summons issued to PW3 Sadhu Ram received back with the report that he has expired and PW4 ASI Suresh Kumar was re-examined, who deposed on the same lines as earlier deposed by him.
6. After closure of prosecution evidence, statement of under Section 313 Cr.P.C was recorded on 10.08.2017 in which appellant pleads innocence and false implication. He opted not to lead DE in his defence.
7. I have heard Mr. Suraj Prakash Sharma, Ld. Counsel for the appellant/convict and Ld. Addl. PP for the State and perused the record carefully.
GROUNDS OF APPEAL CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 8 of 19 -: 9 :-
8. Aggrieved by the judgment of conviction dated 25.08.2017 and order on sentence dated 31.10.2017 passed by Ld. MM, North, Rohini Courts, the present appeal has been preferred on the ground that the said judgment has been passed in mechanical manner without appreciating the material contradictions. It is stated that the findings of the Ld. Trial Court are contrary to the record and the facts/evidence placed on the record does not warrant conviction, as there are number of contradictions in the testimonies of the material witnesses. Therefore, it is prayed that the judgment of conviction and order on sentence are liable to be set aside and appellant is liable to be acquitted.
It is further argued that no due legal representation was given to the accused and that earlier the accused was declared a PO and the examination of the complainant was done under Section 299 Cr.P.C. in his absence but when he was arrested and the complainant was resummoned, he could not be produced in the witness box and hence, the identification of the accused is under cloud.
9. On the other hand, Ld. Addl. PP for the State has strongly controverted the above arguments of the Ld. Counsel for the appellant/convict and has argued that there is no illegality or infirmity in the judgment under challenge, which has been passed after considering all the evidence on the record.
CA No. 151/2017Mohd. Zakir Hussain Vs. State Page No. 9 of 19 -: 10 :-
10. Heard. Trial Court Record perused.
FINDINGS
11. It was incumbent upon the prosecution to prove the following ingredients to establish the guilt of the accused under Section 279 and 304A IPC:
(i) The must have been caused by rash or negligent act of the accused.
(ii) The death so caused, must be causa causans of the rash and negligent act of the accused.
12. To impose criminal liability under this Section, it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must be 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.
13. Rash or negligent act is an act done and intentionally or designedly. A rash act is primarily an over hasty act and is thus opposed to a deliberate act but it also includes an act which, though it 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 CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 10 of 19 -: 11 :- 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 specie. 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.
Hon'ble Supreme court of India in Baba Chandra Vs. State of Maharashtra 1968 SC 1319 held that:
"Criminal negligence 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.''
9. Culpable rashness is acting with consciousness that the mischievous and illegal consequences may follow, but with the hope that FIR No.648/95 5/10 they will not, and often with the belief that the actor has taken sufficient precaution to prevent their happening. The imputability arises from acting despite the consciousness."
14. I have carefully perused the testimony of PW3, who was the star prosecution witness, who vide his testimony has proved the presence of accused and the factum of accident, wherein deceased Yaar Mohd. was fatally injured. The death of CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 11 of 19 -: 12 :- the deceased Yaar Mohd. having been caused as a result of road accident, also stands proved by the postmortem report proved as Ex.D1 (admitted by the accused vide his separate statement recorded under Section 294 Cr.P.C. on 02.08.2017, wherein it had been opined that the all injuries are ante mortem in nature caused by blunt force impact, consistent with vehicular accident. Death is due to coma consequent to cranio cerebral injuries.
Ld. Counsel for the appellant has contended that PW3 Sadhu Ram has not told the manner of rash and negligent driving of accused (appellant herein). Rash and negligence on the part of accused cannot be presumed merely because the offending vehicle i.e. DL-1SC-1269 hit the deceased from the front of side. In the absence of specific manner of rash and negligence on the part of the accused, he cannot be convicted for the alleged offence.
On the other hand, Ld. Addl. PP for the State has submitted that the rashness and negligence on the part of the accused can be presumed on the basis of facts and circumstances of the case and also taking into consideration the testimony of eye witness.
Merely because the eye witness has not told the exact manner of rashness and negligence, prosecution case cannot be thrown at the threshold. Rash and negligence can be inferred on the statement of eye witnesses i.e. PW3 Sh.Sadhu Ram and other attendant circumstances. Rash and negligence on CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 12 of 19 -: 13 :- the part of the accused has been proved from the testimony of PW3. He has clearly stated that accused came while driving the offending vehicle in such a high speed in a rash and negligent manner and hit the deceased cyclist from the front side. Hitting another vehicle from side is in itself a manner of rash and negligence, as it is the obligation of the driver of the vehicle to maintain the distance from the vehicle driven in his front. Rash and negligence can be inferred on his part from the fact that accident had taken place near to Mangal Bazar Chowk, where every driver of vehicle must be expected to get slow down speed being a crowded area. Accordingly, in the present case, as far as the question of driving in a rash and negligent manner is concerned with, the same is very much evident from the testimony of eye witness PW3 Sh.Sadhu Ram.
The testimony of PW3, who was an eye witness of accident does not suffer from any infirmity and is found to be trustworthy and natural.
15. The main line of argument raised by ld. Counsel for appellant was that no due legal representation was given to the accused and that earlier the accused was declared a PO and the examination of the complainant was done under Section 299 Cr.P.C. in his absence but when he was arrested and the complainant was resummoned, he could not be produced in the witness box and hence, the identification of the accused is under cloud.
CA No. 151/2017Mohd. Zakir Hussain Vs. State Page No. 13 of 19 -: 14 :- The record shows that the presence of the accused along with his counsel is reflected in most of the order sheets and vakalatnama of the ld. Counsel for the accused by the name of LRT Associates which comprises of a Law Firm of 05 Advocates had been filed since 02.12.2013. Further, as regards the plea of identification of accused, it was argued that the testimony of PW3 cannot be considered in evidence, as the same was not recorded in the presence of accused and he cannot be produced by the prosecution for cross-examination on behalf of accused and in the absence of PW-3, there is no other eye witness to prove the guilt of the accused.
PW3 Sadhu Ram was examined under Section 299 Cr.P.C. when the accused was P.O. and later on summons issued to him received back with the report that he got expired. It is expedient to refer to the provision of Section 299 (1) Cr.P.C. which provides that the accused person is absconding and there is no immediate prospect of arresting him, the Court can examine any witness produced on behalf of prosecution in the absence of accused and record his depositions which can be given as evidence against him in any enquiry or trial, if the witness is dead or incapable of giving evidence. In the present case, statement of PW3 was recorded under Section 299 Cr.P.C. when accused was absconding. PW3 expired before he was summoned for his denovo statement after arrest of accused. In my opinion, all the ingredients of Section 299 (1) Cr.P.C. are complete and I find no CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 14 of 19 -: 15 :- reason not to rely upon the statement of PW3 Sadhu Ram by virtue of Section 299 (1) Cr.P.C.
The bare perusal of his testimony reveals that PW3 himself took the injured Yaar Mohd. to BJRM Hospital and then to Trauma Centre, where PW4 met him and recorded his statement. So, it is self explanatory that when PW4 reached Trauma Centre, PW3 met him there and narrated the whole incident to him. So, there is no contradiction or embellishment in his statement and his statement is fully reliable and cogent. Therefore, I find no reason to discredit the statement of PW3 Sadhu Ram.
16. In the wake of the convincing testimony of the eye witness and other prosecution witnesses and material available on record, prosecution has been successful in proving the guilt of the accused beyond reasonable doubt.
17. Thus, after perusal of the record and the findings given, there is no illegality in the judgment dated 25.08.2017 and the Ld. Trial Court has thus rightly convicted the accused for the offence punishable under Section 279/304A IPC and the judgment dated 25.08.2017 is upheld.
COMING TO THE POINT OF SENTENCE
18. The Court is mindful of the sentencing policy and its impact on all the stakeholders.
CA No. 151/2017Mohd. Zakir Hussain Vs. State Page No. 15 of 19 -: 16 :- "......The law regulates social interests, arbitrates conflicting claims an demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 16 of 19 -: 17 :- manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu (1991 (3) SCC 471).
The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.
Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 17 of 19 -: 18 :- unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences."
Reliance is placed upon Shailesh Jasvantbhai & Anr vs State Of Gujarat & Ors Appeal (Crl.) 118 of 2006 DOD by Supreme Court, 19 January, 2006.
19. The appellant has been convicted to undergo RI for a period of 06 months for the offence punishable under Section 279 IPC, to undergo RI for a period of 01 year for the offence punishable under Section 304A IPC.
20. Normally the Appellate Court would not interfere in the discretion exercised by the Ld. Trial Court in awarding the sentence or fine. However, in the interest of justice, since the matter pertains to the year 2000 and convict has already undergone trial for a considerable time i.e. more than 23 years, there is no other previous involvement of the convict which has been brought to the knowledge of the court and accordingly as per Section 386(b) (iii) Cr.P.C. without altering the finding given by the ld. Trial court, the sentence is altered to the extent that the appellant Mohd. Zakir Hussain is sentenced to pay a fine of Rs.1000/- for the offence under Section 279 IPC and further sentenced to pay a fine of Rs.9000/- and TRC for the offence under Section 304A IPC. Fine paid. All punishments to run CA No. 151/2017 Mohd. Zakir Hussain Vs. State Page No. 18 of 19 -: 19 :- concurrently. Order on sentence passed by ld. Trial Court dated 31.10.2017 is modified to this extent only.
21. As regards compensation, the LRs of the deceased had received compensation of Rs.60,000/- from MACT.
Since the convict submits that he is the sole bread earner of the family and a first time offender and has no means to pay further compensation, no further compensation to the State to be paid by the accused is being directed, however, 50% of the amount of fine paid by the convict be realized by the State for the expenses incurred in prosecution, as per rules.
22. In view of the above discussion, the appeal is disposed off accordingly.
21. TCR, if any be sent back to the concerned court with copy of this order.
22. Appeal file be consigned to record room.
Pronounced in open (SHEFALI SHARMA)
Court on 16.11.2023 ADDITIONAL SESSIONS JUDGE-02,
NORTH DISTRICT,
ROHINI COURTS, DELHI
CA No. 151/2017
Mohd. Zakir Hussain Vs. State
Page No. 19 of 19