Delhi High Court
Mohkam Singh vs State Of Nct Of Delhi on 30 October, 1998
Equivalent citations: 1999IAD(DELHI)853, 77(1999)DLT385, 1999RLR241
Author: J.B. Goel
Bench: J.B. Goel
ORDER J.B. Goel, J.
1. This criminal revision petition is directed against judgment and order dated 6.2.1996 and 19.2.1996 of learned Metropolitan Magistrate convicting the petitioner under Section 279/304-A, IPC and sentencing him to RI of one year and a fine of Rs. 5,000/- under Section 304-A, IPC, and the judgment of the Appellate Court dated 29.9.1998 confirming the conviction but reducing the sentence from one year RI to RI of six months.
2. Briefly, the facts are that the deceased Subhash Pahwa along with his pillion rider Harish Chand while going on a two wheeler scooter No. HR-29-5686 towards Rohini side at about 9.00 a.m. at Road No. 41 were hit by truck No. DIL-836 from behind. Both of them had fallen down. Subhash Pahwa had sustained head injuries and died at the spot whereas the pillion rider got some injuries. Report was lodged by Harish Chand on the basis of which FIR was registered. Petitioner's truck was seized and he was arrested at spot. He was held guilty and convicted. Learned Counsel for the petitioner is challenging the legality and validity of the conviction on the following contentions:
1. The identity of the accused has not been established.
2. The identity of the offending vehicle has not been established.
3. The identity of the deceased has not been established.
4. It has not been proved that the accident was caused due to rash and negligent driving of the petitioner and that the relevant material on record does not prove rashness or culpable negligence.
Point No. 1:
3. Learned Counsel has pointed out that according to PW-3 (complainant) name of the deceased is Subhash Pahwa, according to PW-5 it is Subhash Pal and in the examination of the accused u/Sec. 313, the name of the deceased put is "Vajpaya".
4. PW-3, Harish Chand Joshi was the pillion rider with the deceased. He has deposed that Subhash Pahwa was driving the scooter who had died in the accident in question at spot. His dead body was taken for post-mortem. He was not cross-examined regarding his accompanying the deceased or about the identity of the deceased. PW-5 Dr. L. J. Ramani has deposed that on 22.1.1991 he conducted the post-mortem on the body of Subhash Pal s/o Hans Raj aged 34 years and his report is Ex. PW-5/A. According to the postmortem report Ex. PW-5/A, the name of the deceased is Subhash Pahwa s/o Shri Hans Raj aged 34 years. In the testimony of PW-5, there is obviously accidental mistake due to typographical error and the name of "Subhash Pal" instead of "Subhash Pahwa" has been wrongly typed. PW-6, ASI Vijay Singh had drawn inquest report Ex. PW-6/C on the dead body. In this also, the name of the deceased is Subhash Pahwa s/o Hans Raj aged 34 years. No suggestion was put to him about the identity of the accused. However, in the statement of the accused u /Sec.313, the name of the deceased put is "Vajpaya" to which his reply was "I do not know". Obviously, this question is based on the material on record. There is no person by the name of "Vajpaya" in whole of the record of the Trial Court. This error could be either due to accidental error in typing or an act of manipulation in collusion with the accused himself by the typist. No such plea has been noticed in the judgment of the Trial Court. Obviously, such a plea had not been taken before the Trial Court. No such plea has also been taken in the grounds of appeal and apparently before the Appellate Court also. This plea obviously is an after-thought and not bona fide. This error in the statement of PW-5 and in the question put to the accused u/Sec. 313 has not caused any prejudice nor has any been pointed out.The identity of the deceased was thus correctly established and it was Subhash Pahwa and none else who had died in that incident. This plea has no merit.
Point No. 2: Identity of the Offending Vehicle
5. Learned Counsel has pointed out that according to PW-3, the number of the offending truck is DIL-836 whereas according to PW-4, it is DIL-8636. The Courts below have not tried to find out the correct offending vehicle.
6. PW-3 is the eye witness. He has deposed that it was Truck No. DIL-836 which had caused this fatal accident and this truck was seized vide seizure memo Ex. PW-3/B at spot. He was not cross-examined about the identity of truck. PW-2 had conducted mechanical inspection of this Truck No. DIL-836 vide his report Ex. PW-2/A. He was also not cross-examined. PW-6, ASI (IO) on this aspect has deposed that he had reached the spot on receipt of DD No. 26-A where a dead body was lying in accidental condition and Truck No. DIL-836 was found in stationary position a bit ahead of the dead body and the truck was seized vide Seizure Memo Ex. PW-3/B and the accused who was present at the spot was interrogated and was arrested. The accused in his statement u/Sec. 313 also had admitted that on 21.1.1991 at about 9.30 a.m. he was driving the truck No. DIL-836 at the time and place of the occurrence. In the statement of PW-4, Ct. Jagdish Chand, the number of the truck recorded is DIL-6806 or 6836. The figures "0" and "3" are not legible. This error obviously is also an accidental mistake. In view of other material, no reliance could be placed on this circumstance also. Such plea has not been taken before the Trial Court and also the Appellate Court. In view of other cogent evidence, it is proved that it was vehicle No. DIL-836. No prejudice has also been caused for this small accidental error. This plea also has no merit.
Point No. 3: Identity of the Accused
7. Learned Counsel has contended that the PW-3 is the only eye witness of the occurrence. He has not identified the accused in the Court.
8. PW-3 has deposed that he could not identify the truck driver after 3 years. But he has also deposed that the truck involved was No. DIL-836 and its driver was arrested at the spot on which he had not been cross-examined. PW-6, IO has also deposed that when he reached the spot, the truck driver Mohkam Singh was also present at the spot. He interrogated and arrested him, identified him in the Court and proved his arrest vide Memo Ex. PW-6/D. He was also not cross-examined on this aspect.
9. The accused in his statement u/Sec. 313 has admitted that he was driving truck No. DIL-836 on the day, time and place of the occurrence. In view of this material, it cannot be said that the accused was not the person responsible for this accident. The Appellate Court has also considered this plea but in view of the material on record it has not found favour with it. This plea also has no merit.
Point No. 4: Regarding Rashness or Negligence
10. PW-3 has deposed that after taking turn towards Road No. 41, they had travelled about 15 to 20 yards and were going near the Road Divider when a truck came from behind with fast speed and hit their scooter as a result of which he and the deceased fell down with their scooter. He got minor injuries and saw that Subhash Pahwa's head had been crushed (Sir Ka Ander Ka Hissa Bahar Nikla Chuka Tha); that the truck was stopped at about 25-30 yards away by a rickshaw-wale by putting his rickshaw in its front; that the truck had hit their scooter from its right side. Obviously, the truck driver had overtaken from left side of the scooterist. Site plan Ex. PW-6/ B also so depicts the scene. The plea taken during arguments before the Trial Court is that "the scooter collided with the Road Divider and consequently fell down on the road and the rear wheel of the truck ran over the head of the deceased. Learned Trial Court has not found any substance in it on the ground that such suggestion had not been given to PW-3 nor there is any evidence to support this plea . No such plea has also been taken by the accused in his statement recorded u/Sec. 313.
11. Regarding rashness and negligence, it held that since the truck came from back, it was the duty of the driver to keep proper distance from the scooter which he failed to do and hit the scooter by the right side of the truck. It held that the truck was being driven in a rash and negligent manner. The Appellate Court has also so held. Learned Counsel has contended that there is no valid finding given about rashness and negligent act for two reasons, (1) mere distance at which the truck was stopped, and (2) mere saying that the truck came at a high speed are not sufficient to come to the conclusion of rash and negligent driving of the vehicle.
12. No doubt, mere use of the expression "high speed" and the distance at which the truck may have stopped, may not always be enough to prove rashness and negligence. However, it will depend upon the facts and circumstances of each case. Learned Counsel has relied on the following observations made in Mahadeo Hari Lokre Vs. The State of Maharashtra, :
"If a person suddenly crosses the road, the bus driver, however, slowly he may be driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the bus driver was negligent."
This was not the case of the accused before the Trial Court that the scooterist had come in front of the truck all of a sudden. Neither any suggestion was put to PW-3 nor such plea was taken in the statement recorded u/Sec. 313. This is of no help.
13. Learned Counsel has also relied on S.N. Hussain Vs. State of Andhra Pradesh, where it was held that the bus driver was not guilty of negligence when a collision had taken place at a railway level crossing with the bus as it was held that the accident was caused because of the negligence of the Gateman in keeping the gate open when a Goods Train was coming which the bus driver could not have anticipated because there was no such train scheduled to pass at that time. This authority also is of no relevance.
14. Learned Counsel has then referred to the definition of the expression "rashness and criminal negligence" as defined by Straight, J. in Empress of India Vs. Idu Beg, (1881) 3 Allahabad 776 which has been referred with approval by the Supreme Court in Bhalchandra Waman Pathe Vs. The State of Maharashtra, Crl.A. No.62 of 1965 decided on 20.11.1967 and again in S.N. Hussain (supra), which reads as under :
"Rashness consists in hazarding a dangerous or want on 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 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."
15. There is no dispute about this legal position. The question of rash and negligence will depend on the facts and circumstances of each case. Like any other offence, the offence of rashness and criminal negligence can also be proved by reasonable inference arising from proved facts and circumstances appearing on the record.
16. The accused hit the scooter from behind while overtaking the scooterist from left side. He hit the scooterist from the right side of the truck and could not stop immediately after colliding with the scooter. It is obvious that the truck driver had not exercised reasonable and proper care which was his imperative duty to have exercised. He was obviously unmindful of the safety of the scooterist, was driving the truck at an uncontrollable speed, as a result he could not control his vehicle after hitting the scooter. He had even not blown the horn before overtaking the scooter from left side. These circumstances clearly prove that the accused is guilty of rashness and criminal negligence and that was the direct cause of this fatal accidental death. The findings of the Trial Court are reasonable, justified and based on material on record.
17. Hence no interference is called for. This revision petition has no merit and the same is hereby dismissed in limine.
18. Revision petition dismissed in limine.