Delhi District Court
Criminal Case/194/1999 on 31 July, 2013
IN THE COURT OF METROPOLITAN MAGISTRATE02
(SHAHDARA) , KARKARDOOMA COURTS, DELHI
Presided by : Ms. Susheel Bala Dagar
FIR No. : 194/99
PS : Seemapuri
U/s 279/337/338/304A IPC
Unique I.D. No. 02402R0025052000
State v. Abdul Mazid
JUDGMENT
a)Serial No of the case : 107/13
b)Date of commission of offence : 03.07.99
c)Name of the complainant : Sh. Jagdeep Jaolota S/o
Sh. Avtar R/o 100D,
PocketI, Dilshad Garden,
Delhi.
d)Name parentage and : Abdul Mazid S/o Wasid
address of the accused Ali R/o E390, New
Seemapuri, Delhi
e)Offence complaint of : U/s279/337/338/
304A IPC
f)Plea of accused : Pleaded not guilty
g)Date on which judgment was
reserved : 22nd day of June, 2013
h)Final Order : Convicted U/s 279/337/
338/304A IPC
i)Date of decision : 05th day of July, 2013
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case as unfolded from the chargesheet FIR No. 194/99 State v. Abdul Mazid Page No. 1 of 17 are that on 03.07.99 at about 7.55 am at A & B, Chowk near the corner of park, Green Field Modern Public School Road within the jurisdiction of PS Seemapuri accused was driving bus bearing No. DL1P5868 in so rash and negligent manner as to endanger human life and personal safety of others and while so driving at the aforesaid date time and place caused simple injuries to victim/injured Sonal and Gainda Lal and grievous injuries to victim/injured Pooja and also caused death of victim/deceased Maninder Kaur.
2. On conclusion of the investigation, the present chargesheet u/s 279/337/338/304A IPC was filed in the Court. In compliance of Section 207 Cr.P.C., the copy of the chargesheet and the documents annexed therewith were supplied to the accused. Prima facie offence U/s. 279/337/338/304A IPC was made out against the accused. Accordingly, on 10.07.2000 accusations were explained and notice was served upon the accused by the Ld. Predecessor of the Court to which the accused pleaded not guilty and claimed trial. Thereafter, the case proceeded for prosecution evidence.
3. In the instant case, the prosecution examined 12 witnesses.
PW1 Jagdeep Jalota deposed that on 03.07.99 he was returning back after leaving his children at Green Field Public School, Dilshad FIR No. 194/99 State v. Abdul Mazid Page No. 2 of 17 Garden in his Maruti Car No.DL6CC5897. At about 7.55 am when he reached at A&B Chowk, Dilshad Garden, on turning left, he saw that one private bus No. DL1P5868 coming in front of his side on very high speed. The said bus struck against his car from the right side while driving in a rash and negligent manner. Then the bus struck against one cycle rickshaw, then again struck school going girls and then bus turned towards left side and again struck against one tree. After being struck PW1 came out from his Maruti car and raised alarm. He apprehended the driver of the bus who was inside the bus at driver seat with the help of other public persons. Public persons took the injured girls to GTB hospital. Someone called the police at the spot. PW1 made the complaint to the police Ex.PW1/A. He identified the accused present in the Court. He proved the seizure memo of Maruti Esteem Car, Bus, Cycle Rickshaw, Driving license of accused Ex.PW1/B to Ex.PW1/E respectively. Accused was arrested and personally searched vide memo Ex.PW1/F. Police recorded his supplementary statement. Lateron he came to know that one of the injured had expired in the hospital.
PW2 Ms. Pooja stated that she was going to school alongwith her sister and friends namely Mamta, Sonal, Inderdeep, and Maninder FIR No. 194/99 State v. Abdul Mazid Page No. 3 of 17 Kaur. When they reached near the park on school road, a bus came from left side in front of them at a very high speed. The bus first struck one Maruti Esteem Car, then rickshaw to save the said car then against them. They tried their best to save themselves and went towards extreme left but driver of the bus was driving the bus in rash and negligent manner. He struck against them due to which she, Maninder Kaur, and Sonal sustained injuries. Rickshaw puller also sustained injuries. She sustained injuries on her right leg near hips and got fractured her right leg. After hitting them the bus struck against one tree. Public persons gathered there and apprehended the accused driver. She correctly identified the accused in the Court.
PW3 Ms. Sonal also corroborated the version of PW1. She stated that the alleged bus was a private bus of green colour. She received injuries on her right leg. The injured Pooja and deceased Maninder Kaur also sustained injuries. She also correctly identified the accused. She stated that the accident took place because accused was driving the bus at a very fast speed in bad manner on the left side of the road.
PW4 Dr. Vinita Rathi stated to have examined the Xray plate of injured Sonal, Pooja and Gainda Lal and gave her report Ex.PW4/A to FIR No. 194/99 State v. Abdul Mazid Page No. 4 of 17 PW4/C respectively. Injured Sonal and Gainda Lal did not have any bone injury. Both pubic bones and right femer of injured Pooja were found fractured.
PW5 Charanjeet Singh received the dead body of his deceased daughter Ms. Maninder Kaur Ex.PW5/A. He proved his identification statement Ex.PW5/B. PW6 Ajeet Singh also identified the dead body of deceased Maninder Kaur being brother in law of PW5 and proved his statement Ex.PW6/A. PW7 Dr. N.K. Aggarwal proved the post mortem report of the deceased Maninder Kaur Ex.PW7/A and opined that the cause of death was shock as a result of ante mortem injury to head, which is possible in a road accident.
PW8 Ms. Mamta deposed that she alongwith her sister Sonal and Pooja, were going to school at about 7.45 am. She also corroborated the prosecution version and stated that accident took place due to negligent manner of driving of the bus by the driver. She correctly identify the accused in the Court.
PW9 Inderdeep also corroborated the version of prosecution she is the sister of deceased Maninder. She stated that accident took place FIR No. 194/99 State v. Abdul Mazid Page No. 5 of 17 due to the fault of the accused as he was driving the bus in a wrong manner.
PW10 Sushil Kumar proved and identified the handwriting in report of concerned doctors on the MLCs Ex.PW10/A to Ex.PW10/E. PW11 Simon M.O superdar/registered owner of the offending vehicle deposed that at the time of accident driver of the alleged bus was accused Abdul Mazid. He proved superdarinama Ex.PW11/A and his statement recorded by IO as Ex.PW11/B. PW12 ASI Suresh Pal stated that on 03.07.99 he received DD No.11A Ex.PW12/A regarding accident. On receiving the DD, he alongwith Ct. Mahipal reached at the spot where one Maruti Car, Bus and cycle rickshaw was found in accidental condition. The owner of the Maruti Car, Jagdeep Jalota, met him and produced the driver of the offending bus i.e. accused before him. He correctly identified the accused in the Court. He recorded the statement of PW1, went to GTB hospital, obtained MLCs of injured/victims, prepared rukka Ex.PW12/B and site plan Ex.PW12/C, and interrogated the accused. He arrested the accused vide memo Ex.PW12/D, prepared seizure memo of R.C and insurance certificate Ex.PW12/E. He deposited the case property in the malkhana and detained the accused in lockup. FIR No. 194/99 State v. Abdul Mazid Page No. 6 of 17 Thereafter, alongwith Ct. Mahipal went to the GTB hospital, recorded the statement of brother and father of deceased regarding the identification of the dead body and inquest papers Ex.PW12/G and PW12/H respectively. He got mechanical inspection of both the vehicles done vide request Ex.PW12/I through mechanical inspector SI Atar Singh and prove the mechanical inspection report Ex.PW12/K and Ex.PW12/L. He also proved the superdginama of vehicle Ex.PW11/A and Ex.PW12/M, the application regarding request for post moretm Ex.PW12/N and FIR Ex.PW12/O. After cross examination of the witnesses prosecution evidence was closed.
4. The statement of accused was recorded U/s. 313 Cr.P.C in which all the incriminating evidence put to the accused to which he stated that he has been falsely implicated in the present case. He stated that the brakes of the offending vehicle failed and so his vehicle struck against one tree. He did not lead evidence in defence and matter was listed for final arguments. At the stage of final arguments counsel for accused moved application U/s 311 Cr.P.C for recalling of witness ASI Suresh Pal. The said application was allowed by Ld. Predecessor. PW12 was recalled and cross examined. Thereafter the matter was listed for final arguments. I have heard Ld. APP for the State and Sh. FIR No. 194/99 State v. Abdul Mazid Page No. 7 of 17 Deepak Kumar Ld. Counsel for the accused from DLSA and carefully perused the record.
5. It is cardinal principle of the criminal law 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 case of the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
6. 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.
7. To impose criminal liability under these sections, it is necessary that the death/grievous injury/simple injury should have been the direct result of a rash or negligent act of the accused, and that act must be the promixate cause without the intervention of another's negligence. It must be a causa causans and it is not enough that it may have been only a causa sine qua non. Culpable rashness is acting with consciousness that the mischievous and the illegal consequence FIR No. 194/99 State v. Abdul Mazid Page No. 8 of 17 may follow but with the hope that they will not happen 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 shows 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 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 person 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. FIR No. 194/99 State v. Abdul Mazid Page No. 9 of 17
8. In order to prove its case prosecution has to establish the identity of the accused, the identity of the vehicle, the injuries caused to the victim due to the accident and the rash or negligent driving by the accused due to which the accident was caused. In the case in hand, the accused has been duly identified by the complainant and the injured persons. The accused was apprehended at the spot. 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 accused. Hence, there is no doubt regarding identity of the accused. In the similar fashion identity of the offending vehicle i.e. private bus bearing NO.DL1P5868 has also been established beyond any reasonable doubt. Besides that PW4 has proved the MLC of injured Sonal, Pooja and Gainda Lal as Ex.PW4/A to PW4/C. PW7 has proved the postmortem report of deceased Manider Kaur as Ex.PW7/A. PW10 has proved the MLC of the injured Pooja, Sonal, Gainda Lal and Maninder Kaur as Ex.PW10/A to PW10/D. From the testimony of the doctors concerned and of the eye witnesses/complainant it is convincingly established that injured/victim Sonal and Gainda Lal received simple injuries FIR No. 194/99 State v. Abdul Mazid Page No. 10 of 17 whereas victim Pooja received grievous injures and deceased Maninder Kaur died in the accident that was committed by the accused. The fact that deceased Maninder Kaur died due to fatal injuries sustained by her in the present road accident is proved by the ocular testimonies of the prosecution witnesses as well as the eye witnesses. Moreover, death of the deceased in the alleged incident and injuries to the other victims has not been denied by the accused. Accused has stated in his statement U/s 313 Cr.P.C that the brakes of the bus had failed but the said version has been falsified by the mechanical inspection report Ex.PW12/K which clearly shows that brakes were in fit condition. In view of the above discussion not only the identity of the accused and the identity of the offending vehicle but also the fact that injured Sonal, Gainda Lal, Pooja and Maninder Kaur suffered simple, grievous and fatal injuries respectively in the alleged incident has been duly established beyond any shadow of doubt by the prosecution.
9. Thus, the only point of contention in the instant case is whether the accused was driving his vehicle in rash and negligent manner or not. In these regard, the complainant/eye witnesses PW1 Jagdeep Jalota alongwith the other injured PW2 Pooja, PW3 Sonal, PW8 FIR No. 194/99 State v. Abdul Mazid Page No. 11 of 17 Mamta, PW9 Inderdeep have been examined. They have categorically testified that the accused was not only driving the offending vehicle at a very high speed but was driving in a rash and negligent manner. The bus struck against the car of PW1 then against one cycle rickshaw, then against the school going girls and then bus turned towards left side and struck against one tree. The way the bus struck the car of PW1 and then the injured/victim and then into a tree clearly reflects that it was at such a high speed that its momentum did not terminate at the time of its impact with the Maruti Car and it continued to cause simple/grievous as well as fatal injuries to the school going girls. PW2 has stated that to save themselves the school going girls went towards extreme left side of the road but still the bus struck them. A reasonable person ought to have been more circumspect and cautious in driving his vehicle on seeing school going children on the road. However, in the present case the accused culpably omitted to take the aforesaid precaution and drove his vehicle at a high speed in a negligent manner. There is no reason to disbelieve the testimony of the complainant and injured regarding the rash and negligent act of the accused. The death of deceased Maninder Kaur and simple/grievous injuries to other school going girls in the accident clearly manifest that FIR No. 194/99 State v. Abdul Mazid Page No. 12 of 17 the accused failed to take due deliberation and caution. The manner in which the accident took place and the harrowing consequence that followed it, can lead to only one inescapable inference that the accused was culpably rash and negligent. Moreover, the legal maxim "res ipsa loquitur" 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 and injuries to the victims had the accused taken sufficient precautions that were expected and required from him as a reasonable and prudent person confronted with the same situation. Hence, his act/driving is duly established to be criminally rash and negligent.
10. In view of the above discussion, the prosecution has proved all the essential ingredients of the offence beyond any reasonable doubt by leading convincing and clinching evidence against the accused. Hence the accused stands hereby convicted for the offence U/s 279/337/338/304A IPC.
Put up for arguments on quantum of sentence on 15.07.13.
Announced in the Open Court Susheel Bala Dagar
th
on this 05 day of July, 2013 Metropolitan Magistrate
Karkardooma Courts, Delhi
All pages signed.
FIR No. 194/99 State v. Abdul Mazid Page No. 13 of 17
IN THE COURT OF METROPOLITAN MAGISTRATE02
(SHAHDARA) , KARKARDOOMA COURTS, DELHI
Presided by : Ms. Susheel Bala Dagar
FIR No. : 194/99
PS : Seemapuri
U/s 279/337/338/304A IPC
Unique I.D. No. 02402R0025052000
State v. Abdul Mazid
31.07.13
ORDER ON THE POINT OF SENTENCE:
Present: Ld. APP for the State.
Convict with counsel Sh. Deepak Kumar from DLSA.
Counsel for convict submits that convict is a middle aged man of 50 years, has poor financial condition, will not be able to compensate the complainant/injured/victim and he is sole bread earner of his family.
Ld. APP for the State has opposed the aforesaid submissions of the convict and has submitted that the maximum punishment be awarded to the convict, so that a deterrent message be sent to the society and like minded people be discouraged from entering into criminal and heinous activities.
The sentencing is a delicate act in which the Court is FIR No. 194/99 State v. Abdul Mazid Page No. 14 of 17 required to take the over all view of the facts and circumstances of the case and the Court cannot be oblivious of the fact that the sentence should serve prolific purpose of serving the society at large. The convict must be awarded such a sentence, which discourages the other like minded people of the society from entering the world of crime. However, a fine balance is required to be maintained amongst the theories of punishment, while sentencing the convict. No single theory whether deterrent, preventive, retributive or reformative can help in eliminating crimes and criminals from society. It is only through an effective combination of two or more of these theories that an ideal penal programme can be drawn to combat crimes. The occurrence of road accident due to lack of proper care as well as due to rash or negligent manner of driving is increasing day by day. The menace of rash and negligent driving need to be curbed which can be achieved by strict implementation of the laws governing motor vehicles and by timely adjudication of the cases relating to road accidents. When a life has been lost and the circumstances of driving are harsh, no compassion can be shown.
In the present case the victims are school going girls who have received simple/grievous/fatal injuries. In the light of the above FIR No. 194/99 State v. Abdul Mazid Page No. 15 of 17 facts and circumstances of the case and by balancing the mitigating or extenuating and aggravating factors, I am of the opinion that the convict Abdul Majid be sentenced to simple imprisonment for three months for the offence U/s 279 IPC, S.I. for three months for the offence U/s 337 IPC, SI for one year for the offence U/s 338 IPC and SI for two years for the offence U/s 304A IPC. All the sentences shall run concurrently. Copy of the order be given to the convict, free of cost today itself.
Announced in the open Court Susheel Bala Dagar
on this 31th day of July, 2013 Metropolitan Magistrate
Karkardooma Courts, Delhi
At this stage, an application u/s 389 Cr P.C for suspension of the sentence is moved by the convict through his counsel today in the Court. Heard. Allowed. Sentence of the convict is suspended till 30.08.2013 to enable him to file an appeal or to serve the sentence. Convict is admitted to bail on his furnishing a personal bond and surety bond in the sum of Rs. 20,000/ Bonds furnished and accepted till 30.08.2013. Original FDR of the surety is already on record.
Announced in the open Court Susheel Bala Dagar
on this 31th day of July, 2013 Metropolitan Magistrate
Karkardooma Courts,Delhi.
FIR No. 194/99 State v. Abdul Mazid Page No. 16 of 17
All pages signed
FIR No. 194/99 State v. Abdul Mazid Page No. 17 of 17