Delhi District Court
Pradeep vs State (Nct Of Delhi) on 20 November, 2018
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IN THE COURT OF SH. SANJAY KHANAGWAL
SPECIAL JUDGE (PC ACT)-05, (ACB)
CENTRAL/THC/DELHI
CA No. 314/18
Pradeep
S/o. Sh. Ram Das,
R/o. F-1/236, Sunder Nagri,
Delhi-93 ........Appellant
Versus
State (NCT of Delhi) ......Respondent
FIR No. 344/06
U/s. 279/338/304-A IPC
PS : Roop Nagar
Date of institution : 24.08 .2018
Date of reserving the judgment : 01.11 .2018
Date of pronouncement of judgment : 20.11.2018
JUDGMENT
1). This appeal has been filed u/s 374 Cr.PC to set aside the judgment and order on sentence dated 17.01.2018 and 27.07.2018 passed by the court of Ld. ACMM (Central),Tis Hazari Courts, Delhi.
By way of impugned order appellant / accused was sentenced to undergo simple imprisonment for a period of six months for the commission of offence u/s 279 IPC, simple imprisonment for a period of 2 years for the CA No. 314/18 Pradeep Kumar Vs. State Page 1/7 -:2:- commission offence punishable u/s 338 IPC and SI for a period of 2 years for the commission of offence punishable u/s 304 A IPC.
2). While highlighting the main grounds of appeal, it is averred by the counsel for appellant that ld. Trial court has failed to appreciate the material contradiction appearing in the testimony of PW-3. IO has not joined any independent public witness to prove the alleged offence and the trial court has not appreciated this fact that there is no eye witness of the commission of offence.
It is further averred that the accident was taken place due to the failure of breaks of the offending vehicle and this fact has been confirmed by PW-6 Ct. Dayal Chand in his testimony who deposed that the offending bus was taken to PS by crane and the same was not in a condition to drive to the PS as its breaks were not functioning. It is further averred that only mechanical engineer can give the correct report regarding the failure of breaks therefore a report prepared by Engineer Automobiles can not be looked into.
3). Reliance is placed by Ld. Defence Counsel on the following judgments titled as Balbir Singh Vs. State of Punjab, Crl. Rev. no. 938/2000, 2010, Kandhara Singh Vs. State of Punjab, Crl.Rev.No. 494/1992, Madhukar Gaurishankar Swami Vs. State of Maharashtra, Crl. Rev. no.83/1997.
CA No. 314/18 Pradeep Kumar Vs. State Page 2/7 -:3:-4). Per contra, appeal is strongly opposed by Ld. Addl. PP and submitted that in the light of testimony of witnesses examined by the prosecution the offence alleged against the appellant has been proved beyond any reasonable doubt, therefore, no intervention in the impugned judgment is warranted.
5). As per brief facts of case, on 03.12.2006, PW-3 Ram Kumar alongwith his wife Swati going to Malkaganj to met her mausi. Both of them boarded the bus of route no. 212 bearing registration no. DL-1PA 7101 which was being driven by appellant. At 02:15 p.m, when the bus reached near Malkaganj chowk, bus got slowed down by the appellant as they wanted to get down. When they were in the process of getting down, suddenly, appellant accelerated the bus, as a result of which both PW-3 and his wife fell down on the road. Swati came under the rear wheel of the bus. She sustained severe injuries and died on the spot. PW-3 also sustained injuries on his left hand. The accident occurred due to the rash and negligent driving of the appellant.
Appellant was charge sheeted and charge was framed for the commission of offence u/s 279/338/304-A IPC.
6). The most important witnesses from the side of CA No. 314/18 Pradeep Kumar Vs. State Page 3/7 -:4:- prosecution are PW-3 Ram Kumar, the complainant and PW-7 J.S.Pawar, Engineer Automobile. PW-3 is also the complainant, eye witness, and injured of this case. The entire incident had taken place in front of his eyes. The deceased was his wife, he also sustained injuries on his hand. He is the best witness who has seen the manner of driving of the bus, the manner in which the deceased and he himself alighted from the offending vehicle. In his testimony he has specifically deposed that "as we were in the process of getting down, in the meanwhile, the accused raised the speed of the bus due to which we both fell down on the road. My wife came under the tyre of conductor side of the bus and sustained severe injuries and she died at the spot. I myself also sustained injury on the left hand. The accident had occurred due to rashless driving of the accused." The witness has narrated the manner of driving of the appellant which shows that he instead of waiting the deceased and PW-3 to get down he increased the speed of the bus as a result of which both the passengers were fell down on the road. Not only that the deceased came under the wheel of the same bus and died on the spot. In the cross examination of this witness, nothing could be brought on record to breach his testimony.
7). Appellant has not disputed the driving of the vehicle no. DL-1PA 7101. He has taken the defence that it was due to the failure of the breaks the accident had taken CA No. 314/18 Pradeep Kumar Vs. State Page 4/7 -:5:- place and denied any negligence on the part of appellant in causing the alleged accident. In cross examination PW-3 has refuted this theory of break fail and denied that accident was taken place due to the same. Appellant has relied upon the testimony of PW-6 Constable Dayal Chand in order to prove his defence as to the failure of break of the vehicle. In his cross examination this witness has stated that the offending vehicle was taken to PS by crane and bus was not in a condition to drive as its break were not functioning. In his re-examination, this witness had stated that he himself has not checked the break system, clutch and other mechanical part of the bus to ascertain whether there was any mechanical failure. Moreover, this witness has not stated anything about the break failure. It is stated that breaks of the vehicle was not functioning. Not working the break cannot be linked with the failure of the break in causing the accident. Moreover, he is not an expert to give his opinion on this point. Even the eye witness has refuted this theory in his testimony. For this purpose, the report of an expert would be more important. Prosecution has examined PW-7 J.S. Pawar, an Engineer Automobile, in his detailed report Ex.PW-7/A, he stated that bus is fit for road test and there were dry blood stained on RL tyres. In this mechanical inspection report break system, steering system and clutch have been shown as 'OK'. Testimony of this witness could not breached. Therefore, the defence of failing of break, in view of testimony and report of this expert CA No. 314/18 Pradeep Kumar Vs. State Page 5/7 -:6:- witness is not sustainable.
8). So far as the averments with respect to the qualification of PW-7 in conducting the mechanical inspection is concerned, appellant has just taken the ground that only the mechanical engineer can give the correct report regarding the failure of break and the report prepared by the Engineer Automobile cannot be looked into. Appellant has not brought on record to show that why the report of Engineer Automobile cannot be relied upon. Nothing has been brought on record to prove that PW-7 being the Engineer Automobile was not qualified to give opinion on the working of the vehicle after the accident. The appellant has also failed to show the difference between the two. Appellant has further failed to show any rule, guidelines that the report of Mechanical Inspector only can be relied upon for the purpose of mechanical inspection of an offending vehicle involved in the accident. Moreover, the report of PW-7 has further connected the involvement of bus in the accident as in the report itself there is a mentioning of dry blood stained on the RL tyres. In totality it is established beyond reasonable grounds that the deceased came under the RL wheel of the offending vehicle. Hence, this ground of qualification as to the PW-7 is not tenable.
9). So far as ground of not joining the independent CA No. 314/18 Pradeep Kumar Vs. State Page 6/7 -:7:- witness is concerned, I am of the view that it is not the quantity but the quality of witness which matters to prove the commission of the offence. Here in this case, PW-3 is the most important witness who has seen the entire incident in front of his eyes and narrated the entire scene in his testimony. The Ld. Trial Court has rightly placed reliance upon the judgment of Muksuddan Vs. State of UP, 1983 SC 126; Shivaji Sahebrao Bobade Vs. State of Maharashtra AIR 1973, SC 2622 in this regard.
10). Injury to Pw-3 is also proved by Pw-3 himself, other prosecution witnesses more specifically PW-11 who has proved the MLC of the complainant Ex.PW-11/A which shows the injuries to the multiple abrasion on the left forearm and left knee, the X Ray report Ex.A-1 shows the fracture o n the left arm which is sufficient to prove the grievous injury on the person of PW-3. Moreover, PW-10 Dr. Sanjeev Kumar has proved the nature of injury as grievous in his report Ex.PW-10/A. In his testimony PW-3 has proved the cause of these injuries as falling down from the bus due to the negligence of the accused who was driving the said vehicle in rash and negligent manner. The cause of death by vehicular accident is established by Pw-9 Dr. S.Lal who conducted the postmortem of the deceased.
11). Therefore, the prosecution has proved the CA No. 314/18 Pradeep Kumar Vs. State Page 7/7 -:8:- circumstances under which the accident had taken place. The circumstances have been established to the extent of showing the involvement of accused in the commission of offence. There is no reasonable ground to show the innocence of accused in the commission of offence. Therefore, the offence against the appellant proved, beyond reasonable doubt. Accordingly, the trial court had rightly convicted him for the commission of the offence.
12). Therefore, I do not find any infirmity in the order of the Ld. Trial Court. In view of the above, the criminal appeal is dismissed. Appellant/convict be taken into custody to serve the sentence.
13). Trial court record be sent back immediately with the copy of this judgment.
14). File of appeal be consigned to record room.
SANJAY Digitally signed by SANJAY
KHANAGWAL
KHANAGWAL Date: 2018.11.20 15:55:15 +0530
Announced in open court (SANJAY KHANAGWAL)
on 20thDay of November,2018 Spl.Judge (PC ACT)-05/ ACB
Central/THC/Delhi
CA No. 314/18
Pradeep Kumar Vs. State Page 8/7
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CA No. 314/18
Pradeep Vs. State
20.11.2018
Present : Sh.Haim Kumar, Counsel for the appellant with
appellant.
Sh.Balbir Singh, Ld. Addl.PP for the state.
Vide separate judgment announced in open court, the criminal appeal is dismissed. Appellant/convict be taken into custody to serve the sentence.
Appeal file be consigned to record room, after completion of other necessary formalities.
Trial court record be sent back alongwith the copy of this judgment.
File be consigned to record room.
(SANJAY KHANAGWAL) Spl. Judge (PC ACT)-05 (ACB) Central/THC/Delhi 20.11.2018 CA No. 314/18 Pradeep Kumar Vs. State Page 9/7