Delhi District Court
State vs Hosila Prasad on 31 March, 2015
IN THE COURT OF SH. TARUN YOGESH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
State V/s Hosila Prasad
FIR No: 201/11
PS: Saket
U/s: 279, 337, 304A, 468, 471 IPC & U/s 185 of MV Act.
JUDGMENT
1. Unique ID No. of the Case : 6R0085982013
2. Date of Commission of Offence : 23.06.2011
3. Date of institution of the case : 13.03.2013
4. Name of the complainant : Sh. Ajay Kumar
S/o Sh. Suresh Kumar,
R/o H.No. C210, Dakshinpuri,
New Delhi.
5. Name of accused, parentage : Hosila Prasad
S/o Sh.Bhagwat Prasad
R/o Village Simarghat, PS
Kotwali, Dist Sultanpur, New
Delhi.
6. Offence complained or proved : U/s 279, 337, 304A, 468, 471
IPC & U/s 185 of MV Act.
7. Plea of Accused : Pleaded not guilty.
FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 1 of 19
8. Final Order : Convicted.
9. Date of Final Order : 31.03.2015
B RIEF REASONS FOR SUCH DECISION :
01. Accused Hosila Prasad S/o Sh. Bhagwat Prasad has been tried for offence(s) U/s 279 & 304A IPC upon allegation of having driven truck bearing no. HR55G4574 rashly and negligently on MB Road in front of Saidullajab, Saket at around 12:30 PM on 23.06.2011 and hit motorcycle no. DL3SBM4551 from behind causing simple injury to complainant Sh. Ajay Kumar and death not amounting to culpablehomicide of deceased Mohd. Badruddin. Additionally, he has been also charged U/s 468 / 471 IPC for having forged his driving license, in the alternative, fraudulently or dishonestly used fake driving license as genuine and U/s 185 of Motor Vehicle Act for having driven alleged truck on road under influence of liquor.
02. Prosecution's case gathered from chargesheet reveals that information about accident and injured being shifted to Max Hospital was received at 12:40 PM on 23.06.2011 which was recorded vide DD no. 8A, PS Saket and dispatched to ASI Makhan Singh through HC Kulbir Singh. Thereafter, ASI Makhan Singh alongwith HC Kulbir Singh and Ct. Bodh Priya reached at the spot, infront of Saidullajab village, MB Road, Saket where FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 2 of 19 alleged truck no. HR55G4574 and motorcycle no. DL3SBM4551 were found in accidental condition. Accused Hoshila Prasad (truck driver) was met at the spot and injured (pillionrider) was informed to have been shifted to Max Hospital in private vehicle. Leaving behind HC Kulbir Singh at the spot, ASI Makhan Singh alongwith Ct. Bodh Priya reached Max Hospital, Saket and collected MLC No. 2097/11 of Mohd. Badruddin S/o Sh. Abdul Rauf with alleged H/o RTA and patient declared brought dead on arrival. Complainant Sh. Ajay Kumar S/o Sh. Suresh Kumar was met at Max hospital and his MLC No. 2098/11 with alleged H/o RTA was obtained. His statement (complaint) was recorded wherein complainant alleged that accident had been caused due to rash and negligent driving of truck no. HR55G4574 by accused. Dead body of deceased was sent to AIIMS Mortuary through Ct. Bodhpriya. ASI Makhan Singh returned back to the spot and prepared tehrir for offence U/s 279, 304A IPC which was sent to PS Saket through HC Kulbir Singh for registration of FIR.
03. During investigation, ASI Makhan Singh prepared siteplan at the instance of complainant and seized vehicles viz. alleged truck & motorcycle which were deposited in malkhana. Accused Hosila Prasad was arrested. His medical examination was conducted at AIIMS vide MLC No. 44939/11 and his blood sample was collected and handed over to Ct. Bodhpriya for examination. FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 3 of 19 Driving license of accused alongwith RC, fitness, insurance & permit of vehicle were seized and offences being bailable, accused Hosila Prasad was released on police bail. Postmortem examination was conducted on 24.06.2011 and thereafter deadbody of deceased was returned to its relatives. Seized vehicles were released on superdari after their mechanical inspection and further investigation was marked to ASI Rajesh Mallik, MACT Cell, South District.
04. Since, driving license no. 3342/STR/06 of accused was found to be fake upon verification from Transport Authority, Sultanpur, UP, so, offence U/s 468 / 471 IPC was added and notice U/s 160 Cr.P.C was issued to accused to join investigation. Accused Hosila Prasad was rearrested on 29.01.2013, produced in court and remanded to JC as offence U/s 468 IPC is nonbailable. Postmortem report no. 712/11 of deceased Mohd. Badruddin was obtained wherein cause of death was opined as ' shock due to hemorrhage caused by blunt external forces which could be possible in road traffic accident ' . Report no. FSL.2011/C3857 was also collected and blood sample of accused Hosila Prasad (Exhibit1) was found containing ethyl alcohol 132.0 mg/100 ml of blood. Having collected statements of witnesses recorded U/s 161 Cr.P.C. and obtained report of fake DL from concerned Transport Authority, ASI Rajesh Malik finalized investigation and prepared chargesheet which was filed in court FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 4 of 19 on 13.03.2013.
05. Cognizance of offence(s) was taken by court and accused Hosila Prasad was charged under section(s) 279, 337 / 304A, 468 / 471 IPC & 185 of M.V. Act on 06.06.2013 to which he pleaded not guilty and claimed trial.
06. Prosecution has examined 14 witnesses on judicial record in support of its case. Copy of FIR No. 201/11, DD No. 8A dated 23.06.2011, PS Saket and deadbody identification memo dated 24.06.2011 were mentioned in a list by prosecution which was put to accused U/s 294 Cr.P.C. and being not disputed, documents have been exhibited as Ex. A1, A2 & A3.
07. Complainant Sh. Ajay Kumar and publicwitnesses Sh. Shahid (son of deceased Mohd. Badruddin) and Sh. Ashok Kumar (registered owner of truck no. HR55G4574) have entered the witness box as PW01, PW02 and PW03. Sh. Kallu Ram Tiwari (Junior Clerk, ARTO Office, Sultanpur, UP), Dr. H.R. Singh (AIIMS, New Delhi), Sh. M.L. Meena (Senior Scientific Officer, FSL, Delhi), Dr. V.G.R. Shastri (Senior Consultant, Emergency Department, Max Hospital, Saket), Sh. T.U.Siddqui (Motor Vehicle Inspector) and Sh. Ajeet Singh (Record Clerk, AIIMS) have deposed as PW06, PW07, PW08, PW09, PW10 & PW11 whereas policewitnesses namely HC Kulbir Singh, Ct. Bodhpriya, Ct. Antonis Kujur, ASI Rajesh Mallik (2nd IO) and ASI Makkhan Singh (1st IO) have FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 5 of 19 testified as PW04, PW05, PW12, PW13 and PW14 respectively.
08. Accused Hosila Prasad was examined U/s 313 Cr.P.C and except for admission of having driven truck no. HR55G4574 on MB Road on 23.06.2011, he has denied the allegation and depositions of witnesses examined by prosecution. He has further claimed of having kept his original driving license at home and also disputed Report no. FSL.2011/C3857 as false.
09. In his defence, accused Hosila Prasad has summoned the judicialrecord of Suit no. 173/2011 titled Sahida Khatoon Vs. Hosila Prasad & Ors for relying upon copy of judgment dated 21.05.2013 of Sh. Sanjeev Jain, Ld. PO, MACTII, South District, Saket proved as Ex. DE1. No other witness was examined by accused and DE was closed vide order dated 03.02.2015.
10. Final arguments were addressed by either side.
11. Sh. Mayank Tripathi, ld. APP for the State has adverted to testimonies of witnesses examined by prosecution for seeking conviction of accused for offences U/s 279, 304A, 471 IPC & 185 of M.V. Act.
12. Sh. M. K. Sharma and Sh. Naveen Chechi, ld. defence counsels per contra have alluded to the testimony of complainant Sh. Ajay Kumar (PW01) for contending that since he was declared hostile and crossexamined FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 6 of 19 by State, hence allegation of rash or negligent driving of alleged truck on public road, resulting in accident, could not be proved by prosecution. Ld. defence counsels have also drawn court's attention to the testimony of complainant (PW01) wherein he has deposed to have been informed by police at PS Saket that accused was driving alleged truck for seeking acquittal of accused for offences U/s 279, 337 & 304A IPC. Finally, they have alluded to para no. 28 (page no. 15) of judgment proved as Ex. DE1 for disputing the testimony of PW06 and seeking acquittal of accused for offence U/s 468 / 471 IPC. Besides addressing their submissions, ld. defence counsels have also referred to judgments titled Abdul Subhan Vs. State 133 (2006) DLT 562; Vinod Kumar Vs. State Crl. Rev. P. No. 131/2010 and Heera Lal Vs. State 2012 (6) LRC 184 (Del) for seeking acquittal of accused.
13. At the outset, it would be apposite to record that notwithstanding the contention of ld. defence counsels regarding identity of accused as driver of the truck, accused Hosila Prasad himself has not disputed his identity as driver of truck no. HR55G4574 on 23.06.2011 during his examination U/s 313 Cr.P.C1. The fact of accused being the driver of alleged truck is even otherwise proved by testimony of registered owner Sh. Ashok Kumar (PW03) and also endorsed by judgment dated 21.05.2013 of Ld. PO, MACTII, Saket proved by 1 Ans. No. 1 during examination U/s 313 Cr.P.C. "I was driving the alleged truck". FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 7 of 19 defence as Ex DE1. Hence, notwithstanding the fact that complainant Sh. Ajay Kumar (PW01) was declared hostile by prosecution as he testified to have been informed about accused by police, identity of accused as driver of alleged truck being admitted / proved, prosecution is left with the burden to prove collision between alleged truck and motorcycle, rash or negligent driving of truck by accused under influence of alcohol resulting in death of deceased Mohd. Badruddin and use of fake DL No. 3342/STR/06 by accused.
14. However, before adverting to testimonies of witnesses examined on record for adjudicating upon the guilt of accused for offences U/s 279 & 304 A IPC, it would be apt to summarize the penal provisions.
"Section 279 IPC: Rash driving or riding on a public way Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger, human life or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for term which may extend to six months, or with fine which may extend to one thousand rupees, or with both".
"Section 304A IPC : Causing death by negligence - Whoever causes the death of any person by doing any rash or negligent act FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 8 of 19 not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both."
15. It is pertinent to note that except for identity of accused Hosila Prasad, complainant Sh. Ajay Kumar (PW01) has supported prosecution's case having deposed to be riding his motorcycle from Mehrauli towards Khanpur and being hit by a truck on its back at around 12:30 PM resulting in injuries to him and the pillionrider Dabbu jee. He has proved his statement (complaint) recorded by police as Ex. PW 1/A and also deposed about his motorcycle being hit on its back by the truck which came at very high speed, in rash and negligent manner.
16. Testimony of complainant Sh. Ajay Kumar is authenticated by Motor Vehicle Inspector Sh. T. U. Siddiqui (PW10) who had inspected the vehicles involved in accident on 24.06.2011 and has proved his reports mentioning fresh damages on the left and front side of truck & its windscreen and extensive fresh damages to motorcycle as Ex. PW 10/A and Ex. PW 10/B. It would be also relevant to allude to para no. 14 of judgment proved by defence as Ex. DE1 wherein the contention of truck being not involved in the accident has not been accepted by Ld. PO, MACTII, South District in view of fresh FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 9 of 19 damages reported in mechanical inspection reports. Relevant portion of the judgment is reproduced below for reference:
"On careful evaluation of the testimony of R1W1 coupled with the documents on record, I find that there were fresh damages on the front portion of the truck".
17. So far as contention raised by defence against relying upon the testimony of PW Sh. Ajay Kumar (complainant) on the ground of being declared hostile is concerned, it is no more res integra that testimony of prosecution witness cannot be rejected merely because he has been declared as hostile and crossexamined by prosecution.
18. In Radha Mohan Singh Vs. State of U.P., 2006(1) SCC (CRI) 661, Hon'ble Supreme Court of India has observed : "It is well settled that the evidence of prosecution witness cannot be rejected in toto merely because prosecution chose to treat him as hostile and crossexamined him. The evidence of witness cannot be treated as effaced or washed of the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof".
19. Similar finding was given by Hon'ble Supreme Court earlier in Gura FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 10 of 19 Singh Vs. State of Rajsthan, 2001 CRI LJ 487 which is reproduced as under : "There appears to be a misconception regarding the effect on the testimony of the witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile, his entire evidence should be excluded or rendered unworthy of consideration. This court in Bhagwan Singh Vs. State of Haryana 1976 CRI LJ 203 held that merely because the court gave permission to the public prosecutor to cross examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witnesses".
20. More recently, in case titled Mohd. Zahid & Anr. Vs. State reported in ILR (2010) VI Delhi 664, the Division Bench of Hon'ble Delhi High Court in para no. 26 of its judgment has held: "However, the catena of the decisions of Supreme Court, referred above, indicate even where a witness is allowed to be cross examined by the party who had called him to depose, that by FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 11 of 19 itself does not altogether destroy his testimony and it is very much open to the court to rely upon that part of his testimony which inspires confidence and is found acceptable."
21. Therefore, mere failure of PW Sh. Ajay Kumar to identify accused Hosila Prasad as driver of truck no. HR55G4574 does not dissuade the court from relying upon his testimony regarding collision between truck and his motorcycle which is also validated by mechanical inspection reports of vehicles proved as Ex. PW 10/A and Ex. PW 10/B and by judgment dated 21.05.2013 proved as Ex. DE1.
22. With respect to allegation of rash or negligent driving of truck on MB road and hitting complainant's motorcycle from behind resulting in death of Mohd. Badruddin (pillionrider), complainant Sh. Ajay Kumar (PW01) has testified about his motorcycle being hit by alleged truck on its back during his examinationinchief and reiterated the same upon being subjected to cross examination by ld. APP for State with court's permission. Relevant portion of his crossexamination is reproduced in verbatim for reference.
"It is correct that the truck came in a very high speed in a rash and negligent manner and hit my motorcycle from back side".
23. Complainant has also deposed to have shown the place (spot) of FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 12 of 19 accident to police and siteplan being prepared at his instance during his cross examination by prosecution with court's permission. Siteplan filed on record has been proved by PW ASI Makhan Singh as Ex. PW 14/D which depicts alleged truck and motorcycle moving in the same direction on MB road from Mehrauli towards Badarpur and shows the spot where truck allegedly hit the motorcycle from behind as point 'A'. Judgment dated 21.05.2013 proved by defence as Ex. DE1 also relies upon the siteplan for recording its observation about negligence of truck driver (respondent Hosila Prasad) : "The siteplan shows that the truck had hit the motorcycle from behind which perse amounts to negligence".
24. As regards allegation of having driven alleged truck on MB road under influence of alcohol, Sh. Ajit Singh, RecordClerk, AIIMS (PW11) has identified the handwriting and signature of Dr. Rumki Singha Roy upon MLC and annexure at points 'A' & 'A1' and referred to MLC No. 449392011 of accused Hosila Prasad as Ex. PW 11/A. Though he admitted that documents were not prepared in his presence, nonetheless MLC records "Smell of Alcohol → Absent now" and " 5 ml of sample taken & handed over to Ct. Bodh Priya 1302 SD PS Saket for examination". It is pertinent to record that whereas accident took place at around 12:30 PM on 23.06.2011, the date & time of FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 13 of 19 arrival of accused at AIIMS for his medical examination is recorded as 23.06.2011 at 07:49 PM. It is therefore natural that there was no smell of alcohol at the time of his medical examination.
25. Report No. FSL .2011/C3857 dated 08.08.2011 has been proved by Sh. M.L. Meena as Ex PW8/A and records that one sealed vial labelled Hoshila No. 44939 (MLC No.) of "CMO AIIMS HOPT N.D" containing reddish brown coloured liquid approx. 5 ml stated to be blood sample of Hosila was put to chemical & GCHS examination which was found containing Ethyl alcohol 132.0 mg per 100 ml of blood.
26. Though accused Hosila Prasad has disputed FSL result as false, but has not denied the fact of being taken to AIIMS hospital. Further, having initially denied to have undergone any medical examination, he later admitted of being examined at AIIMS hospital on his first visit. Therefore, allegation of driving of offending truck under the influence of liquor stands proved beyond reasonable doubt considering the MLC Ex. PW 11/A and FSL report proved as Ex. PW 8/A.
27. "Negligence" in the context of road traffic accidents has been decided in a catena of judicial pronouncements as failure to exercise the required degree of care and caution expected of a prudent driver, i.e. to say FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 14 of 19 "negligence" is the omission to do something which a reasonable man guided by considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Therefore, "negligence" is not always a question of direct evidence, but an inference to be drawn from proved facts as it is not an absolute term, but a relative term rather a comparative term. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omission which could be reasonably foreseen to be likely to cause physical injury to person. The degree of care required depends upon the facts in each case and speed alone does not determine negligence.
28. Distinction between the twin concepts of rashness and negligence has been summarized by Hon'ble Supreme Court of India in its judgment titled "Prabhakaran Vs. State of Kerala, AIR 2007 SC 2376" wherein the Apex Court has observed : "7.... Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 15 of 19 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 circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted."
"8.....The distinction has been very aptly pointed out by Holloway J. in these words: "Culpable rashness is acting with the consciousness that the mischievous and illegal consequences 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. The imputability arises from acting despite the consciousness. Culpable negligence is acting without consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection." (See In re:
Nidamorti Nagabhusanam 7 Mad. H.C.R. 119).
29. Therefore, considering that collision between vehicles took place FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 16 of 19 as a result of offending truck hitting complainant's motorcycle on its back coupled with the fact that accused Hosila Prasad was inebriated while driving heavy vehicle on road, the only conclusion that can be drawn from the facts of the case, irrespective of the case laws cited by defence, points towards rashness and negligence of accused. His act of driving a heavy vehicle on road under influence of liquor tantamounts to reckless and wanton act, indifferent to its consequences and also amounts to culpable neglect or failure to exercise reasonable and proper care and precaution to guard against injury to public.
30. Dr. H.R. Singh, AIIMS New Delhi (PW07) has deposed to have conducted postmortem examination of deceased Mohd. Badruddin and has proved Postmortem report No. 712/11 as Ex. PW 7/A which records the cause of death as "shock due to hemorrhage caused by blunt external force which could be possible in road traffic accident". MLC of Mohd. Badruddin referred as Ex. PW 9/A also records patient declared brought dead on arrival.
31. Prosecution has therefore successfully proved its allegation of rash and negligent driving of truck no. HR55G4574 by accused Hosila Prasad under influence of liquor (alcohol) resulting in accident and death not amounting to culpablehomicide of deceased Mohd. Badruddin. Accused Hosila Prasad therefore stands convicted for offences U/s 279 & 304A IPC and U/s 185 of M. FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 17 of 19 V. Act.
32. As regards offences U/s 468 / 471 IPC, no evidence has been adduced by prosecution that the fake DL bearing no. 3342/STR/2006 was indeed prepared / forged by accused Hosila Prasad. Nonetheless its fraudulent and dishonest use by accused stands proved as the seizure memo of DL has been proved as Ex. PW 14/B and Sh. Kallu Ram Tiwari, Junior Clerk, ARTO Office, Sultanpur has produced the original record of DL issued in the name of Sh. Shiv Kumar S/o Sh. Durga Prasad proved as Ex. PW 6/A and the computerized particulars of DL No. 3342/STR/2006 as per office record as Ex.
PW 6/B.
33. The contention of accused that his original driving license was not seized by IO, does not effect the case of prosecution as no person can hold more than one driving license. It is also pertinent to note that suggestion was put to ASI Makkhan Singh of having got prepared fake license of accused Hosila Prasad which was denied promptly. Contention raised by defence by referring to para no. 28 (page no. 15) of judgment Ex. DE1 does not come to his rescue as ld. PO has recorded his observation in respect of the other license issued to accused by licensing authority Jaunpur. Hence, guilt of accused for offence U/s 471 IPC is also brought home.
FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 18 of 19
34. Accused Hosila Prasad is therefore stands convicted for offence U/s 279, 304A, 471 IPC and U/s 185 of MV Act.
35. Matter be now listed for submissions and order on question of sentence on 08.04.2015 at 2:00 PM.
ANNOUNCED IN THE OPEN COURT DATED: 31th March, 2015 (TARUN YOGESH) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE SOUTH DISTRICT, SAKET COURTS : NEW DELHI.
FIR No: 201/11, PS Saket State Vs. Hosila Prasad Page 19 of 19