Delhi District Court
Vijay Pal vs The State on 11 October, 2017
IN THE COURT OF DR. SATINDER KUMAR GAUTAM,
SPECIAL JUDGE;NDPS SOUTH DISTRICT, SAKET
CA No. 222/17
Vijay Pal ..........appellant
s/o Sh. Yaad Ram
r/o H. No. Village Mehtabvas,
PS Maanan, Dist. Alwar, Rajasthan
versus
The State ..........respondent
FIR Number 301/04 PS Mehrauli u/s 279,304A IPC Date of Institution : 07th September 2017 Date of arguments : 03rd October 2017 Date of Order : 11th October 2017 J U D G M E N T
1. This Judgment shall dispose of Criminal Appeal filed u/s 374 Cr. PC. against the Judgment dated 23.02.2017 and order on sentence dated 17.08.2017 passed by Learned Metropolitan Magistrate, Saket, New Delhi whereby trial Court had convicted the appellant for the offence punishable u/s 279/304A and sentenced him to undergo rigorous imprisonment of two years and pay compensation of Rs. 10,000/ to the legal heirs of deceased Attar Vijay Pal vs State page no. 1 of 16 CA No. 222/2017 Singh for commission of offence u/s 304 A IPC and in default of payment of compensation, he shall undergo simple imprisonment of 15 days u/s 304A IPC. The appellant was also directed to undergo RI of one month for commission of offence u/s 279 IPC.
2. After assigning of Criminal Appeal, trial Court record was requisitioned and notice of the Appeal was issued to State/respondent.
3. Ld. counsel for the appellant argued that so far as the presence of appellant at the place of incident is not disputed, however only high speed, rash and negligent driving as alleged in notice u/s 251 Cr.P.C as well as deposition made by witnesses are not brought home guilt of the accused. There is no evidence on record which shows that there was any act of rash and negligent driving of appellant at any point of time. The trial court has not appreciated the deposition of PW1 and PW 1 in its correct perspective as the deposition revealed the negligence of the deceased. The medical inspection report of the offending vehicle as well as medical inspection report of Tata Suma bearing no. DL 3CS 5364 shows and demonstrates that the offending vehicle was not driven at a high speed and in a rash and negligent manner. Photographs of the offending vehicle. Ex.P1 primarily shows that the damage to the offending vehicle is not much and pointed out to the fact that the offending vehicle was not driven at a very high speed in a rash and negligent Vijay Pal vs State page no. 2 of 16 CA No. 222/2017 manner else the damage would have been more severe. The prosecution did not choose to examine the author of mechanical inspection reports of vehicle Ex.MIA and Ex.MIB. This fact throws considerable doubt over the allegations of prosecution that the offending vehicle was driven at a very high speed and in a rash and negligent manner so as to endanger human life and personal safety of others. The Trial court did not consider that the deceased was standing in the middle of the road at night and the accident would have not occurred if the deceased had taken precautions by not standing on the middle of the road at midnight. There is no evidence that the appellant was driving the offending vehicle at a very high speed and in a rash and negligent manner on a public way I.e place, time, condition of road, nature of traffic and such other circumstances as reflects from the testimony of PW 1 which in any way falls short of proving the case of the prosecution.
4. The conviction is based on the basis of assumptions, presumptions, conjectures and surmises. Prosecution has not discharged its initial burden of proving its case beyond reasonable doubt. In the circumstances prayed to setaside impugned judgment of conviction dated 23.02.2017 and order on sentence dated 17.08.2017.
5. Having heard the submission of Learned Addl. PP/respondent and Learned counsel for appellant and gone through the material on record Vijay Pal vs State page no. 3 of 16 CA No. 222/2017 and trial Court record.
6. Briefly stated the facts of the prosecution story as germane are that on 07.05.2004 at about 12:15am near Air Force Station, Aya Nagar, M G Road, New Delhi and accused was driven vehicle bearing registration no. HR55AT 7668 in a rash and negligent manner so as to endanger human life and personal safety of others and thereby caused death of Sh. Attar Singh. After completion of investigation, charge sheet was filed. Notice u/s 251 Cr. PC was framed on 10.04.2006 to which accused pleaded not guilty and claimed trial.
7. On 18.04.2011, accused has given his statement u/s 294 Cr. PC and 313 Cr. PC whereas not disputing the genuineness of FIR bearing 301/2004 dated 07.05.2004; DD entry no. 42A dated 07.05.2004, Mechanical Inspection reports dated 08.05.2004; MLC bearing no. 1dated 07.05.2004 of deceased Attar Singh; postmortem report bearing no. 480/04 dated 07.05.2004 of deceased Attar Singh; dead body identification statement of Shyam Singh s/o late Ramesh chand Jagt Singh s/o Sh Moon Chand both dated 07.05.2004; Notice u/s 133 MV Act dated 17.05.2004; and its reply dated 19.05.2004 all are included in the list of documents filed by the prosecution.
Vijay Pal vs State page no. 4 of 16 CA No. 222/2017
8. It is also admitted by the accused/appellant that vehicle bearing no. DL3CCS5364 (Tata sumo) was released on superdari to one Sh. Sher Singh Negi s/o Sh. Bale Singh vide superdarinama dated 08.05.2004 Ex. S1 and vehicle bearing no. HR55AT7668 (Qualis) was released on superdari to one Sh. Jai Prakash vide superdarinama dated 19.05.2004 Ex. S2; photograph of qualis is Ex. 1.
9. Accused/appellant in his statement u/s 313 Cr. PC recorded on 10.01.2017, after conclusion of prosecution evidence, admitted that the driver who was driving the vehicle had run away. The police officials told him in the police station that no harm will be caused to him and he has been falsely implicated. He preferred not lead defence evidence.
10. In order to bring home the guilt of the accused , prosecution examined following witnesses.
10.1 Sh. Dinesh Negi (PW1) stated that on 06.05.2004, he alongwith Attar Singh, Sanjay and Shyam, who were his neighbourers were going to Mohan Bab Mandir at Kali Kholi, rajasthan in his Tata Sumo bearing no. DL 3CS 5364, which was being driven by Sanjay. When they reached at Airforce Station, MG road at about 11:00pm, their vehicle had developed some mechanical problem and they stopped their vehicle on the left side of the road. All of them got down from the vehicle and started to check the Vijay Pal vs State page no. 5 of 16 CA No. 222/2017 vehicle, they found that the left tire of the vehicle had been jammed and the driver Sanjay was fixing the jack and they kept the stones on the road to indicate th other vehicle. They had also switched on their parking indicators/light. Attar Singh was standing behind the vehicle, who was giving/signal indicating to other vehicles which were passing through the other vehicle. While Attar Singh was indicating the vehicles, one vehicle bearing no. HR55AT7668 came at a very high speed and struck against Atar Singh. Attar Singh came between both the vehicle and received injuries on his chest. The driver of the offending vehicle reversed his vehicle and tried to flee from the spot but he was apprehended by the public persons. Witness correctly identified the accused in the Court.
10.1.2 Thereafter, they shifted Attar Singh to hospital in the vehicle of accused Vijay Pal. The accused started making calls to the other drivers of his company and informed to his company and drivers that he was taking the injured Umkal Hospital. When they reached the hospital, some friends of the accused also reached there. They took the injured inside the hospital and accused remained outside with his friends. In the hospital, when the patient was examined by the doctors, they came to know that he was dead. Accused Vijay Pal left the hospital leaving the offending vehicle. The police officials from Haryana came there, to whom they narrated the incident and told about Vijay Pal vs State page no. 6 of 16 CA No. 222/2017 the offending vehicle. He alongwith Shyam and deceased's relative were called by the police officials at police station Mehrauli, where he identified accused Vijay Pal by seeing the photograph on the driving licence and told the police that he was driving the vehicle.
10.2 Sh. Shyam Singh (PW2) also deposed in the similar manner with regard to the accident as deposed by PW1. However, he could not identify the accused.
10.3 Sh. Jai Prakash (PW3) is the proprietor of vehicle bearing registration no. HR55AT7668 and the vehicle is in the name of B. P. Travels. He deposed that on 07.05.2004, accused Vijay Pal was driving the offending vehicle and he came to know about the accident. On 19.05.2004, he received Notice u/s 133 MV Act Ex.N2. Accused was produced by him in the police station where his arrest memo and personal search were prepared Ex. PW3/A and Ex. PW3/B respectively. On 07.05.2005, the vehicle was released on superdari Ex. S2. Photograph of vehicle is Ex. P1 was prepared during investigation.
11. Learned counsel for appellant/accused drawn the attention of the Court to the contradictions and some inconsistencies in the statement of Sh. Dinesh Negi (PW1); Shyam Singh (PW2) whereas alleged that the trial Vijay Pal vs State page no. 7 of 16 CA No. 222/2017 Court has not appreciated the evidence in the right path. There are several dents in the prosecution evidence while appreciating the evidence at the time of judging of the incident and further alleged that the incident was caused due to the negligence of the deceased Attar Singh as he was standing in the middle of the road.
12. So far the contradictions as pointed out are bound to occur and is not material one. So far as the impact of the vehicle as being reflected from the MLC and postmortem of the deceased which shows the rash and negligent driving of the offending vehicle droven by the appellant.
13. Prosecution has brought on record the quality of evidence, not the quantity of evidence. Though, the testimony of PW1 is corroborated by other oral and documentary evidence as the offending vehicle of the accused/appellant was apprehended from the hospital. Qualis vehicle was found in the damaged condition. The appellant himself taken the deceased to the hospital in the offending vehicle alongwith PW1 and PW2.
14. Prosecution has cited two witnesses to be an eye witnesses. Sh. Dinesh Negi (PW1) and Sh. Shyam Singh (PW2). Though, Sh. Shyam Singh deposed the manner in which accident took place but he could not identify the accused. Sh. Dinesh Negi (PW1) categorically stated that accused/appellant was driving the offending vehicle in a rash and negligent Vijay Pal vs State page no. 8 of 16 CA No. 222/2017 manner, which resulted in the death of Attar Singh (deceased) .
15. Even the offending vehicle was not a high speed. There is sufficient evidence of driving the vehicle in a rash and negligent manner. In view of evidence led by the prosecution, driving at a high speed is not itself is a negligent act. In the case of Ravi Kapur vs State of Rajasthan AIR SCW 4659, Hon'ble Apex Court has observed that, "a person, who drives a vehicle on a road is liable to be held responsible for the act as well as for the result and that it may not always possible to determine 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 a slow speed, but recklessly and negligently, it would amount to rash and negligent driving within the meaning of the language of Section 279 IPC. Mere driving of a vehicle at a high speed or slow speed do not lead to an inference that negligent or rash driving had caused the accident resulting in injuries to the complainant. In fact the speed is no criteria to establish the fact of rash and negligent driving of a vehicle. Absence of rash speed itself cannot absolve the appellant. Where the appellant Vijay Pal vs State page no. 9 of 16 CA No. 222/2017 driving offending vehicle at a very fast speed in rash and negligent manner and dashed against victim/deceased resulting to death whereby relying on the testimony of complainant, material available the trial Court convicted the accused under Section 279/304A IPC.
16. In case titled as Sanjay Rambhau Patel vs State of Maharashtra 2010 Cr. LJ 1407 (Bombay) it was observed that 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 appellant and led to death of victim. Conviction of accused is held proper".
17. Even in case of accident occurred at public place. There were speed breaker near the place of accident . In spite of being the public and speed breakers, accused did not reduce the speed of offending vehicle. Court found the accused holding that sufficient circumstances available on record to prove that accused had driven the offending vehicle in rash and negligent manner at high speed without any care and precaution.
Vijay Pal vs State page no. 10 of 16 CA No. 222/2017
18. Deceased body was came between Tata Sumo and qualis bearing no. HR55at 7668 . Postmortem report also opined the shock due to multiple antemortem injureis due to blunt force which could be possible in the circumstances Antemortem injury, as described in the postmortem report, is also opined the manner in which offending vehicle crushed over the body of the deceased.
19. There is direct result of rash and negligent driving to the death of the victim and the act sufficient and be efficient cause without intervention of another's negligence. There is direct nexus between the death of the deceased and a rash and negligent act of the appellant. The death of the deceased have a direct result of rash and negligent driving of the vehicle by the appellant. Mere carelessness or error of judgment is not sufficient but ingredients of rash and negligent driving on public road endangering human life or likely to cause injury must be established by the prosecution by examining their nine witnesses. In totality the complete chain of evidence, in all circumstances, does not require to be examined any public witness or any other independent witness, since, there is no enmosity of the police officials with the appellant. Section 279 IPC covers only those cases which relate to driving on public way endangering human life while offence under Section Vijay Pal vs State page no. 11 of 16 CA No. 222/2017 304A extends to any rash and negligent act falling short of culpable homicide. So prosecution has made able to prove its case that there was rash or negligent act on the part of the driver i.e. appellant. Therefore, prosecution has been able to to prove its case successfully against the appellant beyond all reasonable doubts. There is no dent found in the Judgment passed by trial Court and same has been found to be wellreasoned while appreciating the evidence and material on record. There is no iota of evidence to disblieve on the prosecution witnesses as well as charges levelled against the appellant was well proved beyond all reasonable doubt.Appellant made the answer in his statement u/s 313 Cr. PC is seems to be based on legal opinion . There is nothing place on record to stand on the defence, as stated. There is no lacuna to stand between the case of the prosecution and the version, as made by the appellant. The Judgment dated 23.02.2017 passed by trial Court is well founded based on the strong evidence against the appellant, as placed on record and there is no impropriety or illegality therein.
20. Mechanical inspection of the offending vehicle and qualis vehicle was being carried out. The offending vehicle bearing no. HR55AT7668 was found to be damaged and the Tata Sumo vehicle bearing no. DLSCS5364 Vijay Pal vs State page no. 12 of 16 CA No. 222/2017 was found damaged. There is no explanation to this effect made by the accused/appellant. Apart from that, nature of injury and the alleged history of accident was road accident on dated 07.05.2004. Postmortem report also revealed that injuries, as explained by the doctors, can only be caused by the road traffic accident which cannot be ruled out. Prosecution has brought on record the quality of evidence as per the parameters of the charges levelled against the appellant.
21. Though, the sole testimony of Sh. Dinesh Negi (PW1) has been corroborated with the other oral and documentary evidence, the judgment brings home the guilt of the appellant/accused u/s 279/304A IPC, which does not found any infirmity or illegality in the said judgment passed by the trial Court.
22. So far as the order on sentence u/s 279 IPC describes the punishment for six months or fine, which may extend up to Rs. 1,000/ or with both. Trial Court while sentencing the appellant for one month u/s 279 IPC which is just, fair and proper.
23. So far as order on sentence u/s 304A IPC is concerned, maximum punishment described as imprisonment which may extend up to two years or with fine or both.
Vijay Pal vs State page no. 13 of 16 CA No. 222/2017
24. Although the legal heirs had been compensated earlier in MACT claim petition. It is mentioned that accused/appellant is a driver by profession and earns Rs.10,000/. The sentence awarded by trial Court is to undergo rigorous imprisonment of two years for committing the offence u/s 304A IPC and to deposit compensation of Rs. 10,000/ to the legal heirs of deceased Sh. Attar Singh.
25. However, sentence u/s 304A IPC seems to be too harsh as under the mitigating and family circumstances of the appellant. Though, the benefit of granting of probation was declined in view of the latest judgment of the Hon'ble Apex Court in such type of offence.
26. Learned counsel for appellant has argued before the trial Court that appellant is not a previous convict and has been facing rigor trial for more than 13 years and he may be given chance to reform. To counter this submission, trial Court cited judgments of B. G. Goswami vs State Administration 1974 3 SCC 85 and Shailesh Jasvanthbai and Another vs State of Gujarat and others (2006) 2 SCC 359.
27. In the case of Shailesh Jasvanthbhai and another (supra) it has been observed that, "7. The law regulates social interest, arbitrates conflicting claims and demands. Security of persons and property of the people is an Vijay Pal vs State page no. 14 of 16 CA No. 222/2017 essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a crosscultural conflict where living law must find answer to the new challenges and other Courts 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 object of law, which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friendman 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 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."
28. Keeping in view of the contentions raised by Learned counsel for appellant and judgments of Hon'ble Supreme Court as referred by the trial Court, I am of view that the sentence awarded u/s 304A IPC by trial court to Vijay Pal vs State page no. 15 of 16 CA No. 222/2017 the appellant is too harsh and same is hereby reduced to period of six months and fine of Rs. 5,000/ and in default of payment of fine one month simple imprisonment to meet the ends of justice. Accordingly, the sentence awarded to appellant/accused Vijay Pal is modified as under:
(i) sentence u/s 279 IPC is simple imprisonment for one month;
(ii) sentence u/s 304 A IPC rigorous imprisonment for six months and to pay compensation of Rs. 10,000/ to the legal heirs of deceased Attar Singh. In default of payment of compensation, appellant/accused shall undergo simple imprisonment for 15 days.
Both the sentences shall run concurrently. The benefit of Section 428 Cr. PC be also given to appellant/accused. Appellant/accused shall surrender before trial Court within four week's time.
29. Trial Court Record be sent back to the Trial Court concerned alongwith copy of this Judgment for information and necessary compliance.
30. Appeal file be consigned to record room, after compliance of all other necessary formalities.
(announced in the (Dr. Satinder Kumar Gautam)
open Court on Special Judge (NDPS)
11th October 2017 ) South District: Saket
Vijay Pal vs State page no. 16 of 16
CA No. 222/2017