Delhi District Court
Also At vs State on 24 January, 2023
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS: NEW
DELHI
CA No. 491/2017
Kiyauddin Ansari
S/o Sh. Sarffuddin Ansari
R/o A-70, Phase-II
Gautampuri, Badarpur
New Delhi
Also At:
Shop No. 77, Nehru Market
Badarpur, New Delhi
..........Appellant
Vs.
STATE
(Govt of NCT of Delhi)
Through Public Prosecutor
New Delhi
...........Respondent
Instituted on :15.12.2017
Argued on :24.01.2023
Decided on : 24.01.2023
JUDGMENT
1. Vide this order, this Court shall adjudicate the Criminal Appeal filed by appellant, seeking to set aside impugned judgment dated 11.10.2017 and order on sentence dated 15.11.2017, passed by Ld. Trial Court, whereby the Ld. MM convicted the appellant to undergo simple imprisonment for a period of one week and also to pay a fine of Rs. 1,000/- for the offences punishable u/s 338 IPC and to pay a fine of Rs. 1,000/- for the offence punishable under Section 279 IPC.
CA 491/2017 Kiyauddin Ansari Vs State Page No. 1/9
IMPUGNED ORDER FACTS
2. The facts of the case are hereby succinctly recapitulated: It was alleged that the complainant Rajiv Kumar Thakur had made a complaint and he alongwith his cousin Chandan Kumar Thakur was returning from night shift from DHL Officer to their residence. It was further alleged that while walking near Jaitpur more to NTPC gate no.2 his cousin Chandan Kumar Thakur hit from behind by Swaraj Mazda bus bearing no. DLIPB 8739, which dragged him all the way till NTPC wall. It was alleged that the driver ran away from the spot. However, the conductor got apprehended by complainant, and 100 no call was made by him. Further, PCR came and injured was taken to the hospital where his statement was recorded. Thus, on 25.10.2011, FIR got registered. FINDINGS OF THE LD TRIAL COURT
3. After weighing the evidence, the Ld Trial Court opined that there is no evidence to prove that the driver/appellant/convict had applied the brakes or tried to stop the bus and that the brakes were not working properly. Ld. Trial Court found rashness and negligence on the part of driver/appellant herein. Thus, Ld. Trial Court convicted the appellant herein for simple imprisonment for period of one week alongwith fine of Rs. 1,000/-each for the offences punishable u/s 279/338 IPC CA 491/2017 Kiyauddin Ansari Vs State Page No. 2/9 CONTENTIONS OF LD. COUNSELS FOR THE APPELLANT & LD. ADDL PP FOR THE STATE/RESPODENT.
4. Ld Counsel for the appellant submitted that the appellant/convict cannot be held to be at fault inasmuch as it has come on record that the vehicle driven by him was not in a proper working condition and had defective gears. Ld. Counsel further submitted that the IO had not prepared the site plan.
5. Per contra, Sh. Wasi-Ur- Rahman, Ld. Addl. PP for the State/respondent. submitted that the Ld. Trial Court rightly convicted the accused by correctly appreciating the evidence and arriving at a conclusion that the accused was driving in a rash and negligent manner.
6. Submissions heard.
DECISION IDENTITY OF APPELLANT
7. As far as identity of appellant/convict is concerned, it has come on record that the owner of the bus in question PW-6 Raj Kumar was examined and he deposed that at the time of accident, it was appellant Kiyauddin Ansari who was driving the said bus. The said fact was also stated by him whilst replying to the notice u/s 133 M.V Act received from the police. Even though the appellant had left the job about 3 months prior to the accident yet it has come on record that PW-6 hired him to take the impugned bus till the workshop. Further, the defence witness itself ie Ajay Kumar, who CA 491/2017 Kiyauddin Ansari Vs State Page No. 3/9 was examined as DW-1, avowed in his cross-examination that on the date of the accident, on 25.10.2011, he was working as a helper in the bus and it was the appellant/convict who was driving the vehicle. The factum of accident was also narrated by this witness. Further PW-1 Chandan Kumar, correctly identified the appellant/convict as being the driver of bus in question.
8. Significantly, the appellant/convict has nowhere disputed his presence at the spot. Instead, whilst recording his statement u/s 313 Cr.PC he merely averred that he did not cause any accident and that he was falsely implicated. The appellant even did not put forth any plea of alibi. Thus, there is no dispute regarding the identity of accused/appellant as being the driver of the said vehicle.
INJURIES
9. As far as the factum of injuries caused to victim is concerned, it has come on record from the statement of injured PW-1 Chandan Kumar that he was hit from behind by the bus, and he was dragged up to the wall of NTPC. This fact was corroborated by the testimony of friend of injured ie PW-2 Rajiv Kumar also. The injuries caused were reflected in the discharge summary, which was proved by PW-7 Madan Lal, Medical Record Officer, Batra Hospital as Ex. PW-7/A. A perusal of the same reveals that the injured Chandan Kumar was admitted with alleged history of road traffic accident on 25.10.2011, and that he was CA 491/2017 Kiyauddin Ansari Vs State Page No. 4/9 hospitalized from 25.10.2011 to 22.11.2011. A perusal of the discharge summary also makes it explicit that he was kept in ICU on ventilator support. Further, a perusal of the MLC no 200/11, dated 25.10.2011, also reveals that injured Chandan Kumar had received grievous injuries and was unfit for statement. In view of the above it cannot be gainsaid that the injured did not suffer any injury.
RASHNESS AND NEGLIGENCE
10.Once the factum of the appellant/convict driving in impugned bus i.e. the vehicle in question and the factum of victim sustaining injuries has been established, the moot question remains as to whether the accused was driving the vehicle in a rash or negligent manner. In order to prove rashness and negligence, the prosecution examined two witness namely PW-1 Chandan Kumar and PW-2 his friend Rajiv Kumar Thakur. Both of them have categorically deposed that they were on the left side of the road when the impugned vehicle hit Chandan Kumar from behind, and dragged him up to the wall of NTPC. In the cross-examination of PW-1, it was averred that the whole road was empty since it was 05:30 AM. It was further submitted that the offending bus was being driven at a high speed. The fact that injured Chandan Kumar was dragged up till the NTPC wall, is reflective of the factum of vehicle being driven at high speed.
11. At this juncture, it would be apt to peruse the following extracts of CA 491/2017 Kiyauddin Ansari Vs State Page No. 5/9 testimony of PW-1 Chandan Kumar, who deposed as thus:
"At about 5:30 AM, I and Rajeev were let at Jaitpur Mod from motorcycle where from we were leading towards out home on foot.
When we reached at NTPC gate no.1 in meantime, one bus Swaraj Mazda bearing no. DL1PB-8739 came from behind and hit me. I was dragged upto the wall of NTPC and I got hit against the wall, due to the same the mirror of bus got broken. The bus was being driven at fast speed."
12.As is explicit from the above testimony, the impugned bus was not only being driven in a fast manner but also hit a pedestrian from behind. Hitting a pedestrian from behind, who was walking on the left side ie the correct side of the road itself speaks volumes of the rash and negligent driving of the appellant/convict. It is a case where the doctrine of res ipsa loquitur i.e. things speak for itself, is attracted. In Ravi Kapur Vs State of Rajasthan Criminal Appeal No.1838 Of 2009 it was held as thus:
"15The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life.CA 491/2017 Kiyauddin Ansari Vs State Page No. 6/9
Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road accidents. 'Culpable rashness' is acting with the consciousness that 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 consciousness (luxuria). 'Culpable negligence' is acting without the 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 neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's 'An Exhaustive Commentary on Motor Vehicles Act, 1988"
"16 We have noticed these principles in order to examine the questions raised in the present case in their correct perspective. We may notice that certain doctrines falling in the realm of accidental civil or tortuous jurisprudence, are quite applicable to the cases falling under criminal jurisprudence like the present one."
13. Thus, the factum of a pedestrian, who was walking on the correct side of the road, being hit by a vehicle from behind demonstrates rashness and negligence on the part of the driver. This fact also assumes significance in light of the statement of PW-1 that the road was empty as it was about 05:30 AM in the morning
14. In his defence, DW-1 deposed that the gear of the bus was not working properly and that the vehicle was being taken for repairs. However, this CA 491/2017 Kiyauddin Ansari Vs State Page No. 7/9 contention also stands unsubstantiated in view of the statement of PW-3 Sh. T.U Siddiqui, who conducted the mechanical inspection of the bus in question. PW-3 proved his Mechanical Inspection Report as Ex. PW-3/A. He deposed that he could not say whether the 2 nd gear of the vehicle was working or not. Even the Mechanical Inspection Report of the vehicle nowhere reflects that there was something wrong with the gears of the bus. Even assuming that there was something wrong with the gears of the bus, as stated by DW-1, driving the bus with such knowledge imputes an element of negligence on the part of the driver, as correctly observed by Ld. Trial Court.
CONCLUSION
15. Ergo, in view of the aforesaid discussion, this Court finds no infirmity in the impugned judgment 11.10.2017, passed by Ld. MM, South-East, Saket Courts, New Delhi, and thus the present Criminal Appeal, filed by the appellant is hereby dismissed.
16. Arguments on quantum of sentence also heard.
17. Ld. Counsel for appellant/convict remonstrated that the order on sentence dated 15.11.2017 passed by Ld. Trial Court be set aside, inasmuch as the order whereby the convict was sentenced to simple imprisonment for one week is too harsh. Ld. Counsel for the appellant remonstrated that the appellant is a first time offender, and a man of impecunious means. He has a family comprising his old age parents and CA 491/2017 Kiyauddin Ansari Vs State Page No. 8/9 his 3 minor children, to feed and nurture and he is the sole bread earner of his family.
18.Under these circumstances, this Court deems it fit to reduce the sentence of imprisonment imposed by Ld. Trial Court. Accordingly, order on sentence dated 15.11.2017 qua sentence of imprisonment, is hereby set aside. The appellant convict is directed to pay a fine of Rs. 2,000/- before the Ld. Trial Court.
19.Copy of this order be sent to Ld. Secretary DLSA/SED, Saket with a request to disburse adequate compensation to victim, under the Delhi Victim Compensation Scheme, 2018.
20.TCR, if any, alongwith copy of this order be sent to Ld. Trial Court for necessary information/ compliance.
21.Appeal file be consigned to record room after due compliance.
22. Order be uploaded on official website of District Courts. Announced in the open court on 24th January, 2023 (ARUL VARMA) ASJ-04 & Spl. Judge (NDPS) South-East District Saket Courts, New Delhi CA 491/2017 Kiyauddin Ansari Vs State Page No. 9/9