Delhi District Court
Om Prakash vs The State on 11 January, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS: NEW DELHI
CA No. 225 of 17
In CA No. 68/17
Om Prakash
S/o Sh. Fakir Chand
R/o Village Bankner, PS Khair
Distt. Aligarh, UP .......... Appellant
Vs.
The State
(NCT of Delhi) .......... Respondent
Instituted on : 25.05.2017
Argued on : 05.01.2018
Decided on : 11.01.2018
JUDGMENT:
1 The appellant has assailed the judgment dated 05.04.2017 vide which he is convicted u/s 279/304A IPC and order on sentence dated 27.04.2017 vide which he is sentenced to undergo SI for two months u/s 279 IPC and RI for four months u/s 304A IPC. The appellant is also directed to pay a compensation of Rs.50,000/ to the LR of deceased Shashi Bhushan.
2 The appeal is filed on the grounds that Ld. Trial Court has not properly appreciated the evidence on record including the testimony of PW
2. The TIP of the appellant was not conducted. The identity of the appellant is doubtful. The evidence adduced by the appellant was not duly Om Prakash vs. State - CA No. 68/17 1 of 11 appreciated. The judgment passed by the Ld. Trial Court is not sustainable in the eyes of law. Hence, this appeal.
3 The notice of the appeal is issued to the prosecution. 4 The facts of the case are like this.
5 Brijesh Singh gave his statement to the police that he is working as a Checker with Orient Fashion, B9/2, Okhla, PhaseII. On 11.09.2006, he has come to Okhla Industrial Area, PhaseI, New Delhi with respect to the work of his company. He used to go daily to his quarter with his colleague Shashi Bhushan on his scooter bearing No. DL3SU1806. On 11.09.2006 at 08:30 PM, he was waiting for his Shashi Bhushan on the road near ESI Hospital. Shashi Bhushan was coming on his scooter. One truck bearing eegistration No. HR660102 came from Maa Anandmai Marg towards M. B. Road in a high speed and in a rash and negligent manner and reached just ahead of the gate of ESI Hospital and hit against the scooter bearing no. DL3SU1806 from behind. Shashi Bhushan fell down and become unconscious. The truck driver stopped the truck at a little distance. He went near the truck. The helper of the truck told the driver Om Prakash that they should flee from the spot by leaving the truck otherwise public persons will thrash them. He can very well identify the driver. He removed the injured to ESI Hospital in a TSR where he was declared brought dead. The accident has taken place due to rash and negligent driving of the truck driver/appellant. His statement led to the registration of FIR. The investigation was carried out. The charge sheet was filed against the appellant.
Om Prakash vs. State - CA No. 68/17 2 of 11
6 Notice of accusation was framed u/s 279/304A IPC was framed
against the appellant who pleaded not guilty and claimed trial. The prosecution has examined nine witnesses. The appellant was examined u/s 313 CrPC. His defence is of denial simplicitor. However, he has examined one witness in defence evidence.
7 Ld. Trial court after hearing the Ld. APP, Ld. Defence Counsel and perusing the record has convicted and sentenced the appellant. 8 The prosecution has examined 9 witnesses.
9 PW6 Vinay Kumar has identified and received the dead body of deceased Shashi Bhushan.
10 PW5 HC Jeet Pal has proved DD No. 65B Ex.PW5/A and DD No. 71B Ex.PW5/B regarding the information of the admission of injured to ESI Hospital.
11 PW7 ASI Sultan has proved FIR Ex.PW7/A recorded on the basis of the 'tehrir' drawn by HC Suresh Kumar and endorsement Ex.PW7/B on the 'tehrir'.
12 PW3 Dr. Nagender Kumar stated that on 11.9.2016 he has medically examined the deceased in ESI Hospital, New Delhi whose vital signs of living were found absent. His report is Ex. PW3/A. 13 PW8 Dr. B L Chaudhary has conducted the autopsy on the body of deceased Shahsi Bhushan Kumar and issued report Ex. PW8/A. The death was hemorrhage and shock due to injuries sustained in road side accident.
14 PW1 Shadi Lal has conducted mechanical inspections of the scooter and truck and issued the reports Ex. PW1/A and B. Om Prakash vs. State - CA No. 68/17 3 of 11 15 PW4 Faeem Khan is owner of the truck bearing No. HR660102.
On 11.9.2006 accused was his driver who was driving the truck. Notice u/s 133 MV Act Ex. PW4/A was received by him. He gave his reply to the notice. He has taken the truck on superdari.
16 PW2 Brijesh Kumar Singh stated that on 11.09.2006 at 8.30pm he was waiting for Shashi Bhushan in fornt of ESI Hospital as he used to go to his home with him on his scooter. Shashi Bhushan was coming on his scooter bearing registration No. DL3SU1806. One truck bearing Registration No. HR660102 came from Maa Anandmai Marg towards M. B. Road in a high speed and hit against the scooter bearing no. DL3SU 1806 from behind. Shashi Bhushan fell down on road and become unconscious. The truck driver stopped the truck at a little distance. He went near the truck. The helper of the truck uttered the words to the driver Om Prakash that "Bhai Om Prakash Yahan Se Jaldi Bhagh Ja Nahi To Bheer Ikathi Ho Jayagi and Bahut Petegi". He has very well seen the driver. He removed the injured to ESI Hospital where he was declared brought dead. Police were informed. Police came to hospital where his statement Ex. PW2/A was recorded. He was taken to spot and site plan Ex. PW2/B was prepared at his instance. The scooter, truck, insurance and RC of the truck were taken into possession vide seizure memos Ex. PW2/C to F. The appellant was driving the offending vehicle who is present in the court. On 12.9.2016 he was called at police station to identify the appellant where he has identified the accused. He has also identified the dead body of deceased and his statement Ex. PW2/G to this effect was recorded. He was not Om Prakash vs. State - CA No. 68/17 4 of 11 present when the accused was arrested. During cross examination he stated that he used to go to his company with Bhushan on his scooter bearing No. DL3SU1806. Shahi Bhushan is also residing in the same building where he is residing, i.e. 5A, Village Molarband, Badarpur, New Delhi. Shashi Bhushan was spotter in the company. Shashi Bhushan has called him on the day of accident to meet him near ESI Hospital from his mobile but he does not remember the mobile number. He was waiting for Shahi Bhushan near ESI Hospital. He saw the offending vehicle hitting the scooter from behind. The truck was a distance of 50 mtrs from the place where he was standing. The place of accident is well lit. The scooter was ahead of offending vehicle. The deceased was not wearing protective head gear. He has heard the sound of fall of scooter. He reached on the spot within 34 minutes. He alongwith 1012 persons removed the injured to hospital. He did not call the police. The suggestion is denied that he could not identify the offending vehicle due to insufficient light or he was not present on the spot or he alongwith deceased was not working in the same company. 17 PW9 SI Suresh is the IO of the case. He stated that on 11.9.2016 DDNo. 65B Ex. PW5/A was received by him upon which he alongwith Ct. Pramod reached near ESI Hospital where scooter no. DL3SV1806 and truck No. HR660102 were found in an accident condition. He came to know that injured has been taken to ESI Hospital. He has received another DD No. 71B Ex. PW5/B that injured is admitted to ESI Hospital. He went to hospital by leaving constable on the spot where MLC of deceased was taken who was declared brought dead. Brijesh Kumar met him who has Om Prakash vs. State - CA No. 68/17 5 of 11 seen the accident and gave his statement Ex. PW2/A on which rukka Ex. PW9/A was prepared by him and sent to PS through Ct. Pramod for registration of case. He alongwith Brijesh Kumar came on the spot and prepared site plan Ex. PW2/B. Both the vehicles were taken into possession vide memos Ex. PW2/C and D. On 12.9.2006 the postmortem on the body of deceased was got conducted from AIIMS. Notice u/s 133 MV Act Ex. PW4/A was issued to the owner of truck who produced appellant on the same day. The documents of offending vehicle and D/L of accused were taken into possession vide memos Ex. PW2/E and F and Ex. PW9/C. Complainant came to the police station and identified the appellant who was arrested vide memo Ex. PW2/G and admitted to bail. The vehicles were got mechanically examined. The statements u/s 161 CrPC were recorded. During cross examination he stated that complainant met him in the hospital where his statement was recorded. The suggestion is denied that complainant is a planted witness or accused is falsely implicated. 18 DW1 Kunwar Pal Singh stated that he was with the appellant at the time of accident. They were passing through Okhla. The tyre got flat. He alongwith appellant was standing by side of the vehicle as mechanic was repairing the tyre. Lot of persons gathered behind the vehicle and they noticed that an accident has taken place at a distance 2025 ft from their vehicle. During cross examination he stated that public persons have removed the injured to hospital in a rickshaw. The vehicle was impounded by the police. He alongwith appellant was present on the spot when police came there. The accident has taken place at around 78 pm. He did not Om Prakash vs. State - CA No. 68/17 6 of 11 notice any other vehicle in an accidental condition. Both of them have left the spot. The suggestion is denied that he was not present on the spot at the time of accident.
19 Ld. Counsel for the appellant contended that PW2 is not an eye witness as he has categorically stated that he has reached at the spot within 34 minutes. He further submitted that identification of the appellant is not proper as he has been identified at the PS. He further submitted that appellant alongwith DW1 was standing by the side of truck as the tyre of the truck got flat and mechanic was repairing the tyre. 20 Ld. Addl. PP for the State has urged to the contrary. 21 Heard and perused the record.
22 It is clear from the evidence on record that deceased was riding the scooter bearing No. DL3SU1806. The appellant was the driver of offending vehicle as this fact is admitted by DW1 as well as deposed by PW4. The evidence on the record shows that on 11.09.2006 at 08:30 PM deceased was coming on a scooter and reached near ESI Hospital. The testimony of PW2 shows that he was waiting for the deceased near ESI Hospital as he used to go to his house with the deceased on his scooter. Both of them are working in the same company. No contrary evidence is led by the appellant that PW2 was not working with deceased in the same company. His testimony further shows that offending vehicle came from Anandmai Marg towards M. B. Road in a high speed and hit against the scooter from behind. The appellant was driving the truck. The defence of the appellant is that the tyre of the truck got flat. He alongwith DW1 was Om Prakash vs. State - CA No. 68/17 7 of 11 standing by the side of truck and mechanic was repairing the tyre and thereafter appellant is implicated in this case. The defence does not inspire confidence as no question or suggestion is put to PW2 or PW9 that tyre of the truck got flat which was being repaired by a mechanic. No such plea is taken by him while recording the statement u/s 313 Cr.PC. The plea has cropped up only when defence evidence in the form of DW1 is adduced by the appellant. The appellant has not examined the mechanic to show that he was repairing the tyre. The truck was taken into possession on the same day from the spot. The Mechanical Inspection Report Ex.PW1/A of the truck nowhere shows that any tyre of the truck was found flat. All these facts show that the defence adduced by the appellant is an afterthought on which on reliance can be placed. The testimony of DW1 does not inspire confidence. All these facts show that appellant was driving the truck in question.
23 The testimony of PW2 shows that offending vehicle has hit the scooter from behind. It was 08:30 pm. The place of accident is well lit. The scooter was ahead of the offending vehicle. The offending vehicle hit the scooter from behind. This fact find support from Mechanical Inspection Report Ex.PW1/A of the offending vehicle which shows damage on the front right bumper. The scooter must be visible to the appellant. The hitting of the scooter from behind itself shows that offending vehicle was not only in the speed but also driven in a negligent manner, otherwise he would have stopped the truck well in time. Further, it is the duty of the person on the wheels to maintain a safe distance from the vehicle going ahead of him Om Prakash vs. State - CA No. 68/17 8 of 11 which the appellant has failed to do. It is not the defence of the appellant that scooter rider has suddenly applied the brakes or scooter rider has come in front of his vehicle all of a sudden. All theses facts show that appellant was driving the vehicle not only in the speed but also in the negligent manner. The accident has taken place due to rash and negligent driving of the appellant. Support is drawn from Paras Nath v. State of Delhi 107 (2003) DLT 169 and Jeet Lal v. State ILR (2010) Supp. 4 Delhi 558. 24 PW2 has categorically stated that he was present on the spot at the time of accident. He has witnessed the incident. A suggestion is put to him that he was not present on the spot but he has denied the said suggestion. No other question is put to him to this effect. Mere suggestion is not enough to show that PW2 was not present on the spot at the time of accident or that he has not witnessed the accident.
25 The testimony of PW2 shows that he reached on the spot within 34 minutes. This does not mean that he has not witnessed the accident. He has stated that he has witnessed the accident. The accident has taken place on 11.09.2006 whereas his part examination was recorded on 27.11.2008 and part examination was recorded on 26.06.2015. His testimony was completely recorded after a lapse of time so such kind of minor contradiction is likely to occur in the testimony of even most truthful witness.
26 The appellant was produced by PW4 in the PS on the receipt of notice Ex.PW4/A. PW2 was called. The testimony of PW2 clearly shows that he has very well seen the appellant at the time of accident. He has gone Om Prakash vs. State - CA No. 68/17 9 of 11 near the truck when appellant has stopped it at a little distance. PW2 has seen the appellant in the place which was well lit. PW2 has identified the appellant in the PS. The appellant was driving the truck which is even clear from the testimony of DW1. The identification of the appellant at the PS by PW2 does not suffer from any infirmity.
27 PW2 has no motive to depose against the appellant. He will not falsely implicate the appellant. No major contradiction is brought on record by the appellant to bring his testimony into zone of doubt. To my mind, there is nothing on the record to cast aspersion on the testimony of PW2. He has given details of the accident which shows that accident has taken place with the vehicle being driven by the appellant.
28 The entire evidence on the file shows that appellant was driving the truck in rash and negligent manner and hit against the scooter being driven by deceased who fell down and sustained injuries and succumbed to the injuries.
29 Ld. Counsel for the appellant submitted that appellant be released on the probation of good conduct and even the Court can enhance the amount of compensation. He further submitted that appellant has suffered injuries in the accident and lost his son so these facts call for a lenient view in favour of appellant.
30 Ld. Addl. PP for the State has urged to the contrary. 31 One person has lost his life. The appellant was driving commercial vehicle. The appellant did not remove the deceased to the hospital. He did not help him. The deterrent punishment is more important in road accident Om Prakash vs. State - CA No. 68/17 10 of 11 cases so that persons who ply the vehicles on the road must bear in mind that they will have to face serious consequences including conviction and imprisonment in case of fatal accident. The appellant cannot claim sympathy because a person who plays with fire cannot complain of burnt fingers. The leniency is in such like cases will do injustice to the family members of the deceased. A stern message has to be given to the society. To my mind, there is no ground to take a lenient view as Ld. Trial Court has already passed the sentence u/s 279/304A IPC which is on the lower side. . 32 I do not find any infirmity or perversity with respect to the conviction recorded u/s 279/304A IPC and sentence imposed u/s 279/304A IPC. The conviction and sentence u/s 279/304A IPC are upheld. 33 The appeal is dismissed. The appellant is taken into custody in order to serve the sentence imposed by Ld. Trial Court. His warrant of commitment be prepared and sent to Superintendent Jail, Tihar, New Delhi. 34 Attested copy of the judgment be supplied to the appellant free of cost.
35 TCR record alongwith copy of the judgment be sent to the Ld. Trial Court.
36 Appeal file be consigned to record room.
announced in the open court on 11 January, 2018 th (SURESH KUMAR GUPTA) Additional Sessions Judge04 & Spl. Judge (NDPS) South East, New Delhi Om Prakash vs. State - CA No. 68/17 11 of 11