Delhi District Court
Vinod Kumar vs The State (Nct Of Delhi) on 22 September, 2022
IN THE COURT OF SH. MANISH KHURANA
ADDITIONAL SESSIONS JUDGE04, WEST DISTRICT
TIS HAZARI COURTS : DELHI
CNR No.DLWT010081292019
CA No. 253/2019
Vinod Kumar
S/o Sh. Shyam Rathi Yadav
R/o Village Barbaspur,
Post Balawan, Distt., Jaunpur,
U.P. ............. Appellant
Vs.
The State (NCT of Delhi) ............ Respondent
Date of Institution of case : 03.10.2019
Date of final arguments : 15.09.2022
Date of decision : 22.09.2022
Decision : Appeal Dismissed
ORDER
1. This is an appeal u/s 374 Cr.PC filed by the appellant against the judgment dated 25.07.2019 and order on sentence dated 07.09.2019 passed by Ld MM03/West/Tis Hazari Courts, Delhi in case FIR No. 125/09, PS Mayapuri whereby Ld MM has convicted and sentenced the appellant for the offences u/s 279/304A/471 IPC.
2. I have heard arguments on the appeal and perused the trial court record.
CA No. 253/2019 Vinod Kumar Vs. The State Page 1 of 123. Brief facts of the case of the prosecution before Ld Trial Court are that on 22.11.2009 at about 3.00 pm at D3 Block, near Karan Market, Nangal Raya within the jurisdiction of PS Mayapuri, the convict/appellant herein was found driving a truck bearing no. DL1M 1091 while using forged driving licence in such a manner so rash and negligent so as to endanger human life and personal safety of other and he while driving in the aforesaid manner struck the truck against the pedestrian namely Yashpal and caused his death not amounting to culpable homicide. On the basis of the statement of alleged eyewitness Hari Krishan the present FIR was registered and after conclusion of investigation, the chargesheet was filed before Ld Trial Court and after framing of charge u/s 279/304A/467/471 IPC against the appellant herein, the prosecution examined as many as 13 witnesses. After conclusion of prosecution evidence, the statement of accused u/s 313 Cr.PC was recorded wherein all the incriminating evidences were put to the appellant, however, the appellant pleaded his innocence but he did not lead any evidence in his defence before Ld Trial Court. Thereafter, final arguments were heard and vide impugned judgment dated 25.07.2019, the appellant herein was acquitted for the offence u/s 467 IPC, however, he was convicted for the offences u/s 279/304A/471 IPC and vide order on sentence dated 07.09.2019, the appellant was sentenced to simple imprisonment for 03 months for the offence u/s 279 IPC, simple imprisonment for 06 months for the offence punishable u/s 304A IPC and simple imprisonment for 06 months for the offence punishable u/s 471 IPC and the appellant was also directed to pay the compensation of Rs. 40,000/ to the wife of the deceased. Ld Trial CA No. 253/2019 Vinod Kumar Vs. The State Page 2 of 12 Court also ordered that in default of payment of compensation, the appellant/convict shall undergo further simple imprisonment for 03 months.
4. Against the impugned judgment of conviction dated 25.07.2019 and order on sentence dated 07.09.2019, the present appeal u/s 374 Cr.PC has been filed on behalf of the convict/appellant herein.
5. Ld Trial Court came to the conclusion vide impugned judgment that the accused/appellant was driving the truck bearing no. DL1M1091 in the rash and negligent manner so as to endanger the human life and personal safety of others and while driving in aforesaid manner, he caused death of pedestrian namely Yashpal and that accused was using the forged driving licence. Vide instant appeal, the appellant herein has challenged the findings of the Trial Court regarding conviction of the appellant for the offences u/s 297/304A/471 IPC.
6. My opinion about the findings of Ld Trial Court vide impugned judgment dated 25.07.2019 and order on sentence dated 07.09.2019 is herein below:
7. Section 279 IPC provides punishment for rash and negligent driving on a public way. Section 304A IPC provides the punishment for causing death by negligence and it provides that whoever causes death of any person by doing any rash or negligent act 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.
8. Therefore, for securing conviction u/s 304A IPC, the prosecution is required to prove that the death of a person was "caused" by doing the rash and negligent act by the accused. There has to be proximity CA No. 253/2019 Vinod Kumar Vs. The State Page 3 of 12 between cause of death and rash and negligent act committed and the rash and negligent act of the accused must be the proximate cause of death of the deceased.
9. It is fundamental principle of criminal jurisprudence is that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be.
10. The accused/appellant herein has been charged for the offences u/s 279/304A IPC and for the offence u/s 471 IPC. To prove the case against the accused/appellant, the prosecution was required to prove the following facts before Ld Trial Court:
A. The identity of the accused being the driver of the offending vehicle;
B. That the accused caused the accident by his rash or negligent driving at a public place;
C. That the rash or negligent driving of the accused resulted in the death of the deceased.
D. That the accused used the forged driving licence.
THE IDENTITY OF THE ACCUSED
11. In the case before Ld Trial Court, the prosecution has alleged that the accused Vinod Kumar was driving the truck bearing no. DL1M1091 in a rash and negligent manner and caused the death of victim Yashpal.
CA No. 253/2019 Vinod Kumar Vs. The State Page 4 of 12However, the accused has taken the defence in his statement u/s 313 Cr.PC that he did not commit any offence and he was falsely implicated in the present case FIR. During the arguments on appeal, Ld counsel for the appellant argued that the accused/appellant herein was not driving the aforesaid truck and that the alleged eyewitness/PW3 is a planted witness by the IO of this case and that PW3 Hari Krishan was not present at the spot at the time of alleged incident and that PW3 has deposed falsely against the appellant herein.
12. Perusal of the testimony of alleged eyewitness/PW3 Hari Krishan reveals that on 22.11.2009 he was going to Nangal Raya alongwith his brotherinlaw Yashpal and when they reached at Mayapuri near Karan Market at about 3.00 pm while Yashpal was going ahead of him, suddenly the driver of the offening truck bearing no. DL1M1091 was reversing his truck without blowing horn and hit his brotherinlaw Yashpal Singh due to which Yashpal fell down on the ground and he further stated that he was shouting and also raised alarm to stop the offending truck but the driver of the said truck did not give any heed to the alarm and continued reversing the truck due to which head of Yashpal Singh came beneath the rear wheel of conductor side of the said truck and it thereby crushed the head of Yashpal and due to the said incident Yashpal Singh died on the spot. PW3 identified the accused Vinod in the Court as the driver of the offending truck at the time of incident and he categorically stated that the incident took place due to the negligence of the accused/appellant.
13. Thereafter, the PCR call was made and the victim was taken to hospital and PW3 reached at PS Mayapuri where his statement Ex.PW3/A was CA No. 253/2019 Vinod Kumar Vs. The State Page 5 of 12 recorded and the site plan was prepared and the accused/appellant was arrested vide arrest memo Ex.PW1/B at the instance of complainant/PW3 Hari Krishan. PW3/complainant also identified the truck bearing no. DL1M1091 as Ex.P1.
14. During the cross examination of complainant/PW3 by Ld defence counsel before Ld Trial Court, the presence of the accused/appellant at the spot of incident is not disputed nor is it alleged that the accused was not driving the truck bearing no. DL1M1091 in a rash and negligent manner. The entire cross examination of complainant/PW3 hovers around the defence that PW3/complainant was not present at the spot of incident. However, PW3 stood well in his cross examination regarding deposition made by him in examination in chief.
15. It is pertinent to mention herein that PW4 Brahm Dev/superdar who is the registered owner of truck bearing no. DL1M1091 has categorically deposed that at the relevant point of time accused Vinod Kumar (present in the Court today) was driving the said truck. PW4 Brahm Dev was not cross examined by the accused so as to dispute the testimony of PW4 regarding the identity of the accused being the driver of the truck bearing no. DL1M1091 on the date and time of incident.
16. In view of the abovesaid facts and circumstances, I am of the opinion that the prosecution has proved before Ld Trial Court that the accused/appellant Vinod Kumar was driving the truck bearing no. DL 1M1091 on the date and time of the alleged incident.
RASHNESS OR NEGLIGENCE
17.In order to prove the rash and negligent driving of the accused so as to endanger human life and personal safety of others, the prosecution has CA No. 253/2019 Vinod Kumar Vs. The State Page 6 of 12 examined the complainant/PW3 Hari Krishan who categorically deposed that he alongwith his brotherinlaw Yashpal Singh (victim) were going to Nangal Raya market on 22.11.2009 and at about 3.00 pm, the accused (appellant) was driving the truck bearing no. DL1M1091 and he was reversing the said truck without blowing any horn and while reversing it, the accused hit his brotherinlaw Yashpal Singh and due to the impact Yashpal Singh fell down on the ground. He further deposed that he was shouting and he also raised alarm to stop the truck but the driver of the said truck did not give any heed regarding the said alarm and continued reversing the truck due to which the head of the Yashpal Singh came beneath the rear wheel of the conductor side of the said truck and it got crushed and Yashpal Singh died on the spot. PW3 stood well during his cross examination and no question has been put to PW3 by Ld defence counsel so as to dispute the rash and negligent manner of driving of truck by the accused.
18.The testimony of the eyewitness PW3 Complainant Hari Krishan clearly reveals the factum of rash and negligent driving by the accused as the victim Yashpal was initially hit by the accused while reversing the truck bearing no. DL1M1091 and when victim fell down, the accused did not stop the truck and continued reversing it and ultimately crushed the head of the victim Yashpal Singh beneath the rear wheel of the said truck. PW3 has also deposed that he shouted and raised alarm while the accused (appellant) was reversing the truck in a rash negligent manner but the accused didn't pay any heed. It was the duty of the driver i.e. the appellant herein to take all precautions while reversing the big vehicle like a truck, however, the appellant did not do so. Perusal of the CA No. 253/2019 Vinod Kumar Vs. The State Page 7 of 12 evidence on record also reveals that there was no helper in the said truck to assist the driver while reversing the said truck and the accused/appellant herein was reversing the truck without taking precaution of presence of the pedestrians on the road due to which the victim came beneath the rear wheel of conductor side of the said truck and died.
19. In view of the evidence on record, Ld Trial Court has rightly held that the accused was driving the truck bearing no. DL1M1091 in a rash and negligent manner so as to endanger human life and personal safety of others.
THE CAUSE OF DEATH
20. The next requirement to prove the case against the accused is whether the cause of death of deceased is the rash and negligent act/driving of the accused.
21. As discussed above it stands proved before Ld Trial Court that accused/appellant Vinod Kumar was driving the truck bearing no. DL 1M1091 in a rash and negligent manner so as to endanger human life and while driving so he hit the pedestrian Yashpal Singh who came beneath the rear wheel of the conductor side of the said truck.
22. The deceased Yashpal Singh was found lying near the truck bearing no.
DL1M1091 and PW9 ASI Jagdish Raj who reached at the spot of incident on 22.11.2009 after receipt of DD No. 24B Ex.PW9/A has deposed that he found the offending truck bearing no. DL1M1091 in accidental condition and dead body of deceased was lying to near the rear wheel of the said offending truck and the head of the dead body was brutally smashed. Further, PW5 Sh. Pitam Singh, Photographer, CA No. 253/2019 Vinod Kumar Vs. The State Page 8 of 12 was called at the spot on 22.11.2009 i.e. the date of incident and he clicked the photographs of the truck bearing no. DL1M1091 and that of the dead body of deceased from different angles. The said photographs are Ex.PW5/1 to Ex.PW5/7 and no question has been asked by Ld defence counsel from PW5 so as to dispute the testimony of PW5 or the photographs Ex.PW5/1 to Ex.PW5/7.
23. The prosecution has examined PW6 Dr. Archana Jain, DDU Hospital before Ld Trial Court who conducted the postmortem of the deceased Yashpal Singh and she has deposed before Ld Trial Court that on 23.11.2009 she conducted the postmortem examination of deceased Yashpal Singh and prepared the postmortem report no. 1324/09 pertaining the deceased Yashpal Singh which is Ex.PW5/A (it should have been Ex.PW6/A) and she opined in the postmortem report that the cause of death of deceased Yashpal Singh was Cranio Cerebral injury consequent to road traffic accident and all injuries sustained by deceased were antemortem and fresh in duration. No question was put to PW6 during her cross examination which shows that neither the testimony of PW6 Dr. Archana Jain nor the postmortem report Ex.PW6/A is disputed.
24. Hence, the evidence on record clearly proves that the deceased Yashpal Singh died due to Carnio Cerebral injury consequent to road traffic accident which was caused due to rash and negligent driving of truck bearing no. DL1M1091 by the accused Vinod Kumar.
25. Hence, in view of the abovesaid discussion, the prosecution has duly proved its case against the accused/appellant Vinod Kumar u/s 279/304A IPC and Ld Trial Court has rightly held the accused/appellant CA No. 253/2019 Vinod Kumar Vs. The State Page 9 of 12 guilty of the aforesaid offences.
26. The accused/appellant has also been convicted by Ld Trial Court u/s 471 IPC for using the forged driving licence.
27. Ld Trial Court has concluded that the accused Vinod Kumar cannot be convicted for the offence of forgery punishable u/s 467 IPC as there is no evidence on record that the accused himself prepared the forged document (licence) in terms of section 464 IPC.
28.Ld Trial Court has observed that it is proved from the testimony of PW1 Dinesh Kumar Mishra who has appeared from the office of ARTO and that of PW12 ASI Raj Kumar that the accused was using fake driving licence bearing no. 2677/04.
29. Perusal of the evidence on record reveals that PW11 HC Suresh Kumar went to the Transport Authority for the purpose of verification of driving licence of the accused and he was not cross examined by Ld defence counsel. Further, ASI Raj Kumar was examined as PW12 who brought the original letter issued by Sh. MS Dabas regarding verification of DL2677/04 vide letter which is Ex.PW12/A whereby it was alleged by New India Assurance Company that the said driving licence is forged and fabricated. PW12 stood well during his cross examination. Further, PW10 Sh. Dinesh Kumar Mishra, Head Clerk from the office of ARTO, District Jaunpur, UP appeared before Ld Trial Court alongwith driving licence registers and he stated that as per office record, no driving licence no. 2677/04 was issued in the name of Vinod Kumar s/o Shyam Rati and he further stated that as per record, the aforesaid driving licence was issued to one Hari Shankar s/o Sh. Bakey Lal r/o Birman Pur, Jaunpur. He further stated that as per record no such CA No. 253/2019 Vinod Kumar Vs. The State Page 10 of 12 driving licence was issued in the name of accused Vinod Kumar by the Authority and he exhibited the copies of extract of driving licence register and driving licence renewal register as Ex.PW10/A (OSR) and Ex.PW10/B (OSR). PW10 stood well during his cross examination and there is no material contradiction in his testimony.
30. Thus, the prosecution has proved before Ld Trial Court that the driving licence bearing no. 2677/04 was not issued to accused Vinod Kumar whereas he was using the aforesaid forged driving licence which was seized by the police from the accused during the investigation vide seizure memo Ex.PW8/B. The aforesaid driving licence was a false document which was being used by the accused and therefore, the accused/appellant has been rightly convicted for the offence punishable u/s 471 IPC by Ld Trial Court.
31. In view of the abovesaid discussion, I do not find any infirmity or illegality in the decision of Ld Trial Court as arrived vide impugned judgment dated 25.07.2019. Ld Trial Court has sentenced the convict/appellant herein to simple imprisonment for 03 months for the offence u/s 279 IPC, simple imprisonment for 06 months for the offence punishable u/s 304A IPC and simple imprisonment for 06 months for the offence punishable u/s 471 IPC and the appellant was also directed to pay the compensation of Rs. 40,000/ to the wife of the deceased. Ld Trial Court also ordered that in default of payment of compensation, the appellant/convict shall undergo further simple imprisonment for 03 months. All the sentences have been ordered by Ld Trial Court to run concurrently and I do not find any reason to interfere in the order of sentence dated 07.09.2019 passed by Ld Trial Court. Hence, the CA No. 253/2019 Vinod Kumar Vs. The State Page 11 of 12 impugned judgment dated 25.07.2019 and the order on sentence dated 07.09.2019 are hereby upheld. Consequently, the appeal filed by the convict/appellant is hereby dismissed and disposed of.
32. Appeal file be consigned to Record Room.
33. Trial Court Record be sent back.
34. Copy of this order be sent to the Court of Ld MM03/West/Tis Hazari Courts, Delhi.
ANNOUNCED IN THE OPEN COURT ON THIS 22nd DAY OF SEPTEMBER 2022.
(Manish Khurana) Additional Sessions Judge04 West/Tis Hazari Courts Delhi/22.09.2022 CA No. 253/2019 Vinod Kumar Vs. The State Page 12 of 12