Delhi District Court
State vs . Nootan Tyagi on 23 September, 2015
IN THE COURT OF SH. AJAY KUMAR MALIK: METROPOLITAN
MAGISTRATE (CENTRAL)-04 TIS HAZARI COURTS, DELHI
STATE VS. NOOTAN TYAGI
FIR NO. 499/2004
P.S.: Sarai Rohilla
Unique Case ID No. :02401R6297732004
Date of institution of case :18.12.2004
Date on which case reserved for :18.09.2015.
judgment
Date of judgment :23.09.2015.
JUDGMENT U/S 279/304 A IPC
a)Date of offence :26.09.2004.
b)Offence complained of :U/s 279/304A IPC
c)Name of accused, his parentage :Nootan Tyagi
& residence S/o Sh. Shiv Nandan Tyagi
R/o Village Khindora, PS
Niwadi, Disst. Azifabad.
d)Plea of accused :Pleaded not guilty
e)Final Order :Accused Convicted
J U D G M E N T
FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 1 of 16 BRIEF FACTS AND REASONS FOR DECISION :
Case of the prosecution in brief is as follows:
1. That on 26.09.2004 on receiving DD No. 18 PP Inderlok, ASI Mohd. Rajiq along with constable reached at the spot and found that one bus bearing registration No. DL1P7563 and scooter No. DL8SM7545 were lying in accidental condition and injured were already taken to Agrasen Hospital. ASI Mohd. Rajiq left the Ct. Ashok Kumar at the spot and procured the MLC NO. 816/2004 qua injured Rahisuddin S/o Inayat Ali wherein the doctor has made his observation for injured as "Brought Dead". In the hospital itself one person Lekh Bahadur S/o Sh. Mahavir stated to be eye witness of the accident. IO/ASI Mohd. Rajiq recorded his statement who stated that today at about 05:25 PM when he was going Bhusa Mandi from his house and at about 05:40 he reached at Red Light under Zakhira Pull, one bus bearing No. DL1P7563 was coming from high speed and suddenly took a turn from left side and after crossing the red light hit one scooter due to which the driver of scooter came under the bus.
The complainant took out the scooter and scooter rider and saw that the injured was his neighbour and his name is Raisuddin. The complainant immediately put the injured in three wheeler and reached at Maharaja Agrasen Hospital where the doctor observed the injured FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 2 of 16 as brought dead. The accident has been caused due to driving of bus with high speed and negligence by the accused. On the statement of the complainant the case U/s 279/304 A was registered. IO prepared the site plan. The offending bus bearing registration No. DL1P7563 and two wheeler scooter bearing registration No. DL8SM7545 were seized, the postmortem of dead body of deceased Rahisuddin was got conducted. Statement of witnesses was recorded. The accidental vehicles was got mechanically inspected. After completion of investigation the charge sheet was filed in the court U/s 279/304A IPC.
2. After summoning of accused and after compliance of the provisions of section 207 Cr. P.C. the notice was issued against accused on 06.02.2006 u/s 279/304A IPC to which accused not pleaded guilty and claimed trial.
3. The Principles of Law governing the Offences Under Section 304A IPC:- In order to prove the offences under Section 304A IPC, the following facts need to be proved:-
Firstly : the accused was in the possession of certain premises and having control over there with liability to take proper care in order to avoid any prospected wrong happening;
Secondly : the accused abstained from his duties and liabilities which may cause any accident/mishappening;
FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 3 of 16 Thirdly : the death of person was caused due to such rash or negligent act.
4. Now, the court shall appreciate the evidence of the prosecution to find out whether the aforesaid three basic ingredients of offences have been proved against the accused or not.
5. Whether The Accident Was Caused Due to Negligence of the Accused:- Now, important question is whether the accused was negligent in taking the precautionary measures to avoid any mishappening or accident?
6. Section 304A do not specify what exactly is meant by word rash and negligent. As per Straight J., Criminal rashness "is hazarding a dangerous or Wanton Act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. 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 persons to have adopted." These observations won the approval of the Hon'ble Supreme Court in Bala Chandra Vs. State of Maharashtra (AIR 1968SC1319). In the said case, the Hon'ble FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 4 of 16 Supreme Court observed:-
"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."
Culpable rashness is acting with 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 precaution to prevent their happening. The imputability arises from acting despite the consciousness (hixuria).
7. The question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case.
8. Having discussed the basic concept of rashness or negligence. Now, this court shall discuss the testimonies of prosecution witnesses.
9. In order to prove the case Prosecution got examined 11 witnesses in total and out of those 11, accused has not cross examined the 08 witnesses despite all opportunities given to him, hence, the testimonies of these eight witnesses remained untainted, FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 5 of 16 unrebutted and uncontroverted.
10. Prosecution got examined Dr. Rajesh Gupta, CMO, Civil Hospital, Rajpur Road, Delhi as PW1 who deposed that on 27.09.2004 at 12:30 PM he conducted the postmortem on the body of deceased Raisuddin vide PM No. 1577 and proved the same as Ex.PW1/A. PW1 further deposed that all the injuries were ante mortem in nature caused by blunt force impact due to being involved in vehicular accident and death was due to cranio cerebral injuries.
11. Prosecution got examined Sh. Surender Singh as PW2 who deposed that he is owner of the bus bearing No. DL1P7563 and accused Nootan Tyagi was driver of the bus on the day of accident. PW2 correctly identified the accused in the court. PW2 proved the offending bus by producing the same in the court as Ex.P1.
12. Prosecution got examined Ct. Balbir Singh as PW3 who deposed that on 26.09.2004 while being looking the work as DD Writer at PP Inderlok, he received the PCR call regarding accident which was reduced into writing in register No. 2 at Serial No. 18 and proved the same as Ex.PW3/A. PW3 further deposed that the enquiry was handed over to ASI Mohd. Rajiq who came back along with accused at police post Inderlok at about 06:40 PM.
13. Prosecution got examined ASI Rajender Singh as PW4 who deposed that on 26.09.2004 at about 07:20 PM Ct. Ashok Kumar FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 6 of 16 brought the rukka sent by ASI Mohd. Rajiq at which PW4 registered the FIR No. 499/04. PW4 proved the FIR as Ex.PW4/A and endorsement on the rukka as Ex.PW4/B.
14. Prosecution got examined Ct. Ashok Kumar as PW5 who deposed that on 26.09.2004 he accompanied ASI Mohd. Rajiq for the spot of offnece and reached Zakhira Fly over where they noticed the bus No. DL1P7563 and one scooter bearing No. DL8SM7545 in accidental condition. PW5 further deposed that the photographs of site were clicked and one Javed handed over the accused to him by stating that he is the driver of the offending bus. PW5 further deposed that IO informed him that the victim has been declared by the doctors as brought dead and the statement of the eyewitness Lekh Bahadur was recorded at the hospital. PW5 further deposed that on the tehrir prepared by IO he got the FIR registered at the police stating thereafter, IO has seized both the vehicles. PW5 proved the seizure memo of accidental bus and scooter and Ex.PW5/A and Ex.PW5/B respectively. PW5 also proved the seizure memo of DL as Ex.PW5/C, arrest memo of accused as Ex.PW5/D and personal search memo of accused as Ex.PW5/E.
15. Prosecution got examined Akhtar Ali as PW6 who proved the dead body identification memo as Ex.PW6/A.
16. Prosecution got examined Retd. ASI Devender (Tech.) as FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 7 of 16 PW7 who deposed that on 27.09.2004 he mechanically inspected the scooter No. DL8SM7545 and bus bearing registration No. DL1P7563 and proved their mechanical inspection report as Ex.PW7/A and Ex.PW7/B respectively.
17. The prosecution examined HC Barik, Office Executive, MGS Hospital as PW8 who proved the MLC No. 816/2004 for victim Inayat Ali prepared by Dr. V.K. Jawa as Ex.PW8/A.
18. The prosecution also examined SI Mohd. Rajiq as PW9 who deposed that on 26.9.2005 while being posed at PP Inderlok he received the DD No. 18 A and along with Ct. Ashok Kumar reached at the spot i.e. Red Light near Zakhira Fly Over Chowk and found a bus bearing No. DL1P7563 and scooter No. DL8SM7545 in accidental condition. Injured was taken to Maharaja Agrasen Hospital. PW8 correctly identified the accused in the court. PW9 further deposed that the accused was apprehended by public persons. PW9 went to hospital and received the MLC of victim Rahisuddin where doctor declared him "Brought Dead". PW9 further deposed that he recorded the statement of eyewitness in the hospital and proved the same as Ex.PW9/A. PW9 further deposed that the public persons also broke the glass of offending vehicle. PW9 prepared the rukka on the statement of the complainant and proved the same as Ex.PW9/B. PW9 further deposed that after registration of FIR he prepared the FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 8 of 16 site plan and proved the same as Ex.PW9/C. PW9 further deposed that he seized both the accidental vehicle and proved the photographs of the spot as A1, A2 and A3. PW9 also deposed that after reaching at Police Post Inderlok he arrested the accused and got the postmortem conducted of dead body. PW9 proved the dead body identification memo as Ex.PW9/D, dead body handing over memo as Ex.PW9/E and mechanical inspection report of offending bus and scooter as Ex.PW9/F and Ex.PW9/G respectively. PW9 correctly identified the bus in the photographs which has already been proved as Ex.A1 to Ex./A3.
18.1 During cross examination, PW9 affirmed that he recorded the statement of the complainant at the hospital. It is also admitted by PW9 that the negatives of the photographs are not placed on record.
19. The prosecution examined Sh. Naresh Kumar, Ahlmad from the court of Sh. Sunil Kumar, Ld. MM, Rohini as PW10 who produced the driving licence of the accused from the judicial file of case FIR No. 09/03 PS Jehangirpuri and proved the copy of robkar of the driving licence of the accused as Ex.PW10/A.
20. The prosecution got examined Sh. Dinesh Kumar as PW11 who deposed that he is running a photo studio at Rakhi Market, Zakhira in the name and style of M/s Dinesh Photo Studio but he refused that he has clicked any photographs of the spot at the FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 9 of 16 instance of the IO.
21. P.E. was thereafter closed.
22. On 18.09.2015, the statement of the accused U/s 313 Cr. P.C. got recorded in which accused not wished to lead D.E.
23. Arguments at length advanced at length by both the sides.
24. It is submitted by Ld. Defence Counsel that complainant Tej Bahadur was not examined as witness. Ld. Counsel further submitted that no public witness has been examined by the prosecution and photographer/PW11 has also resiled from the statement that he has taken the photographs of the spot. It is further stated that on one hand PW9 has said that PW5 has took the accused to police post Inderlok whereas PW3 said that PW9 and Ct. Ashok took the accused to police post.
25. It is observed by this court that eye witness/Tej Bahadur already got expired on 01.12.2006 at Dr. Baba Saheb Ambedkar Hospital vide death certificate registered on 06.12.2006 so complainant Tej Bahadur was not produced by the prosecution as a witness in the witness box. As PW9 was/SI Mohd. Rajiq was the police official who received DD No. 18A dated 26.09.2004 and reached at the spot of offence. This PW9 met the eye witness/complainant Tej Bahadur and recorded his oral statement/complaint in his own handwriting and has also obtained the FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 10 of 16 signature of complainant Tej Bahadur Mishra onthe complaint and further attested the signature of complainant Tej Bahdadur Mishra by putting his own signature adjacent to signature of complainant Tej Bahadur Mishra so it cannot be said that there is nothing on record as a complaint which cannot be proved by the prosecution.
Section 60 of the Indian Evidence Act 1872 says that oral evidence must be direct.
Section 61 of the Indian Evidence Act 1872 says that the contents of document may be proved either by primary or secondary evidence.
Section 63 (5) of the Indian Evidence Act 1872 read as under:-
The Secondary evidence means and include........... (5) Oral accounts of the contents of the document given by some person who has himself seen it.
Section 67 of the Indian Evidence Act 1872 read as under:-
Proof of signature and handwriting of person alleged to have signed or written document produced. - If a document FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 11 of 16 is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that persons handwriting must be proved to be in his handwriting. In the case titled as "Janki Narayan Bhoir Vs. Narayan Namdeo Kadam" AIR 2003 SC 761 it was held by Hon'ble Apex Court that if the attesting witness is alive and capable of giving the evidence and subject to process of court the documents attested by him can be used in evidence. In view of conjoint reading of aforementioned section, it is clear that the contents of document can be proved by the witness who has attested the document or signature of the executant and can prove that much part which contain the signature or writing in the document which was made in front of attesting witness. As PW9 himself has heard and recorded the statement of complainant Tej Bahadur and has attested the signature of complainant Tej Bahadur by counter putting his signatures at Point A, hence, PW9 has successfully proved the complaint of complainant Tej Bahadur as Ex.PW9/A. FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 12 of 16
26. It is observed by this court that owner of offending bus i.e. Sh. Surender Singh has specifically deposed that at the time of accident accused - Nootan Tyagi was driving the offending bus bearing registration No. DL1P7563 and PW2 has also correctly identified the accused in the court. It is also observed that PW3 has specified that he handed over the copy of DD No. 18 to ASI Mohd. Rajiq for the investigation and when PW5/Ct. Ashok Kumar also reached at the spot along with PW9/ASI Mohd. Rajiq he found the offending bus in accidental condition for which the private photographer clicked the photographs of the site and the victim was declared brought dead by the hospital and eye witness namely Lekh Bahadur was examined at the spot. PW9 has also specifically deposed that he went to spot along with complainant where he prepared rukka on the statement of complainant at which Ct. Ashok got the FIR registered so it is clear that the accident took place while accused was driving the offending bus and accused was caught by the public at the spot and IO along with Ct. Ashok also saw the aftermaths of accident when they reached at the spot. Complainant Tej Bahadur narrated the entire incident to PW9 and on the basis of same narration, PW9 prepared the rukka but Ld. Defence Counsel not cross examined the PW9 on the point of narration by eye witness Tej Bahadur, whereas, the prosecution has successfully proved that FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 13 of 16 statement Ex./PW9/A is of complainant Tej Bahadur recorded by PW9.
27. Complainant - Tej Bahadur has mentioned the factum of accident in his complaint which has been proved by PW9 as Ex.PW9/A. The nature of injuries was well described by the doctor in the MLC thereby stating that all the injuries were ante mortem in nature caused by blunt force impact due to being involved in vehicular accident and death was due to craneo cerebral injuries and also in view of postmortem report and MLC, it is established that the injuries to person of deceased were caused at the time when person was alive and due to those ante mortem injuries caused by blunt forced due to vehicular accident the person got expired.
28. It is also observed that the IO has seized the offending vehicle and two wheeler scooter vide seizure memo Ex.PW5/A and Ex.PW5/B respectively at the spot of accident and both the vehicles were in accidental condition. The same fact can also be observed from the photographs of the offending bus in which the two wheeler scooter bearing registration No. DL8SM7545 is lying under the front side of offending bu. The mechanical inspection of offending bus and accidental two wheeler scooter was conducted by PW7 and PW7 has successfully proved the mechanical inspection report as Ex.PW7/A and Ex.PW7/B where PW7 has given the observation and opinion for FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 14 of 16 offending bus DL1P7563 that the fresh damages has been seen, front bumber dented and scratched from lower side.
29. It is also observed that PW1 has proved the postmortem report and in the postmortem report the doctor has opined that all the injures are ante mortem in nature caused by blunt force impact due to being involved in vehicular accident. The death is due to cranio cerebral injuries which happen at about 18 & 1/2 hours before conducting postmortem. In view of above, it is beyond reasonable doubt that accused Nootan Tyagi was driving the offending Bus bearing registration NO. DL1P7563 and due to his rash and negligent act the accused has caused the accident consequently deceased received injuries and succumbed due to those injuries and accused - Nootan Tyagi has caused the death of deceased Rahisuddin.
30. It is also observed that postmortem report clarifies the cause of death of deceased. Hence, the prosecution has proved that the accused - Nootan Tyagi has caused the injuries to Rahisuddin which consequently lead to his death and injuries were caused due to the road accident caused by accused due to his rash and negligent act.
31. The prosecution has proved the charges U/s 279/304A IPC against the accused - Nootan Tyagi. The accused Nootan Tyagi is hereby convicted for the offence U/s 279/304 A IPC. FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 15 of 16 Copy of this judgment be given dasti to the convict free of cost.
Announced in the open Court on this 23rd Day of September, 2015 (AJAY KUMAR MALIK) MM(Central)-04/THC 23.09.2015.
FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 16 of 16 FIR No.499/2004 PS: Sarai Rohilla 23.09.2015 Present : Ld. APP for the State.
Accused - Nootan Tyagi along with Ld. Counsel. Vide separate judgment of even date, accused -
Nootan Tyagi is convicted for the offence
punishable U/s 279/304A IPC.
Issue notice to LRs of injured/deceased -
Rahisuddin to be served under personal supervision of SHO concerned.
Matter is adjourned for orders on the quantum of sentence on 19.10.2015.
(AJAY KUMAR MALIK) MM (Central)-04/NEW DELHI 23.09.2015 FIR NO. 499/2004 State Vs. Nootan Tyagi Page No. 17 of 16