Delhi District Court
Shivaji vs State on 28 September, 2010
1
IN THE COURT OF SHRI S. K. SARVARIA, DISTRICT JUDGEVIII
& ADDITIONAL SESSIONS JUDGE, ROHINI COURTS, DELHI
Criminal Appeal No. 14/10
Shivaji,
S/o Sh. Dodi Lal,
R/o E99, Chota Rasta,
Sonia Vihar, Shahdara,
Delhi.
..... Appellant
VERSUS
State ..... Respondent
Date of Institution: 31.08.2010
Date of Arguments: 23.09.2010
Date of Pronouncement: 28.09.2010
JUDGMENT
The present appeal under Section 374 of the Criminal Procedure Code is filed against the judgment dated 29/06/2010 and order on sentence dated 05/08/2010, passed by Ld. Metropolitan Magistrate, whereby the revisionist herein was convicted for offences under Sections 279/304A/338 IPC and sentenced to undergo 3 Shivaji Vs. State 2 months S.I. and fine of Rs. 1,000/ for offence u/S. 279 IPC; 6 months S.I. and fine of Rs. 1,000/ for offence u/S. 338 IPC and 1 year S.I. and fine of Rs. 4,000/ for offence u/S. 304A IPC and in default of payment of fine to also undergo S.I. of 3 months. Aggrieved with the same, the present appeal is preferred by the appellant.
The contention of counsel for the appellant was that the trial court did not properly appreciate the facts of the case and the evidence on record. He submitted that the trial court erred in relying on the statements of PWs 3, 6 & 7. As per PW3 they reached Delhi at about 3:00 am but as per PW 6 Hari Ram & PW 7 Lal Sai Parashar, they reached Delhi at 11:00 pm. It was averred that it was false that the alleged accident took place due to the fault of the appellant who was driving the halfbody truck. It was submitted that as per DD no. 8B there was not even a whisper of happening of some accident. It was pointed out that there is no dhaba as per the site plan but PW7 Shivaji Vs. State 3 mentioned dhaba in his statement, thus, reliance on site plan by the Ld. MM was incorrect. The counsel contended that the appellant faced the trial for a period of about 15 years. The counsel also pointed out that the ingredients of the offences for which the appellant has been convicted are not made out as is evident from the evidence on record and thus, the impugned judgment and order on sentence deserves to be set aside.
Refuting the same, Ld. Chief Public Prosecutor submitted that there is no infirmity in the judgment and the order of conviction passed by the trial court. He urged that the present appeal has no merits and should be dismissed forthwith.
I have heard Ld. Counsel for the revisionist and the Ld. Chief Public Prosecutor for the State and perused the record.
Before delving on the issues, it would be pertinent to take a note Shivaji Vs. State 4 of certain decisions of the Hon'ble Apex Court. The Apex Court in Rathnashalvan Vs. State of Karnataka, (2007) 3 SCC 474, while interpreting Section 304A IPC held as under:
"7. Section 304A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to Shivaji Vs. State 5 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. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, "rashness" consists in hazarding a dangerous or wanton 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.
Shivaji Vs. State 6
9. The distinction has been very aptly pointed out by Holloway, J. in these words:
"Culpable rashness is acting with the 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 precautions to prevent their happening. The imputability arises from acting despite the 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 the civic duty of circumspection." (See Nidamarti Nagabhushanam, In re1, Mad HCR pp. 11920.)"
Similarly, the Apex Court in Shankar Narayan Bhadolkar Vs. State of Maharashtra, (2005) 9 SCC 71 held as under:
"18. Coming to the plea of the applicability of Section 304A, it is to be noted that the said provision relates to death caused by Shivaji Vs. State 7 negligence. Section 304A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision relates to offences outside the range of Sections 299 and 300 IPC. It applies only to such acts which are rash and negligent and are directly the cause of death of another person. Rashness and negligence are essential elements under Section 304A. It carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder in Section 300 IPC. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304A IPC has to make room for the graver and more serious charge of culpable homicide.
19. In order to be encompassed by the protection under Section 304A there should be neither intention nor knowledge to cause death. When any of these two elements is found to be present, Section 304A has no application. The accused Shivaji Vs. State 8 appellant not only picked up the gun, unlocked it for use but also put the cartridges and fired from very close range, aiming at a very vital part of the body.
20. In the background facts as highlighted above, the inevitable conclusion is that Section 304A has no application.
The Apex Court while drawing the distinction between rash act and negligent act in Bhalachandra Waman Pathe Vs. The State of Maharashtra, 1968 ACJ 38, held as under:
"An offence under Section 304 A Indian Penal Code may be committed either by doing a rash act or a negligent act. There is a distinction between a rash act and a negligent act. In the case of a rash act as observed by straight, J. in Idu Beg's case 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 Shivaji Vs. State 9 regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Again as explained in Nidamarti Negaghushanam's case, a culpable rashness is acting with the 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 precautions to prevent their happening. The imputability arises from acting despite the consciousness 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 if he had he would have had the consciousness. The imputability arises from the neglect of the civil duty of circumspection."
Shivaji Vs. State 10 Coming back to the case at hand, in the instant case there is no dispute visàvis the fact that at the alleged time of the accident, the accused was driving the truck bearing registration no. UP 93B 7670, the offending vehicle and the same has been admitted by the accused appellant in his statement under S. 313 CrPC.
The only issue disputed by the appellant is that he was not rash and negligent and the deceased did not die because of any fallacy on his part.
It is equally well settled that the prosecution has to prove the case beyond reasonable doubt. Rashness or negligence is essential requirements for proving the guilt of the accused under Ss. 279/304A/338 IPC.
On perusal of the record it is manifest that PW6 Hari Ram, the eyewitness and brotherinlaw of the deceased Smt. Sharda Shivaji Vs. State 11 stated in his examinationinchief that the truck driven by the accused was coming in a rash and negligent manner from the direction of Sindhu Border and hit the stationery bus bearing registration no. UP 93B 7670 and then ran over the passengers who were sleeping on the pavement and then turned turtle. Similar statements have been made by PW 3 Mehmood Khan and PW7 Lal Sai Parashar. All the three witnesses PW6 Hari Ram, PW 3 Mehmood Khan and PW7 Lal Sai Parashar materially stated the same thing that the bus reached the Mukarba Chowk, GTK Road and were resting, some passengers slept inside the bus, others went outside and slept on the footpath and still some others went on the roof of the bus to sleep/rest and at about 3:00am the said truck driven by the accused rammed into the bus and then ran over the passengers who were sleeping on the pavement and then turned turtle. The minimal inconsistency as regards the time of the incident is of no effect. In this regard in Shivaji Vs. State 12 Bharwada Bhoginbhai Hirjibhai v. State of Gujarat A.I.R. 1983 (SC) 753 it was held:
".................Over much importance cannot be attached to minor discrepancies. The reasons are obvious : (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) Shivaji Vs. State 13 In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him Perhaps it is a sort of a Shivaji Vs. State 14 psychological defence mechanism activated on the spur of the moment.
6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses."
In Rizan v. State of Chhatisgarh, A.I.R. 2003 (SC) 976 the following observations were made:
"12. Stress was laid by the accused appellants on the nonacceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other coaccused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff.
Shivaji Vs. State 15 Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded.
In Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble AIR 2003 SC 4567, it was observed by the Apex Court as follows:
"27. As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr., AIR 1981 SC 1390, normal discrepancies in evidence are those which are due to normal errors of Shivaji Vs. State 16 observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc. (2002 (4) JT (SC) 186); Gangadhar Behera and Ors. v. State of Orissa, 2002 (7) Supreme 276 and Rizan and Anr. v. State of Chhatisgar (2003 (2) SCC 661 ."
Clearly, due to lapse of time between the accident and the date of the evidence/statement before the Court, some minor/normal discrepancies are bound to creep in the testimony of witnesses.
Be that as it may, from the aforesaid it is manifest that the accused/appellant while driving truck, without seeing as to where he Shivaji Vs. State 17 was driving bumped into the standing bus and due to his negligence/ speed could not control the said truck and maneuvered the said truck on the persons/passengers who were sleeping outside the bus and then also the bus did not stop but went ahead and turned turtle.
The deceased persons Sharda, Ishwar Prasad and Rama Bai died due to vehicular accident is proved from the statements of PW2 B.N. Acharya, who conducted postmortem of Smt. Sharda; PW4 Dr. Alexander, who conducted postmortem of Ishwar Prasad; PW10, Dr. K. Goel, who conducted postmortem of Rama Bai.
Therefore, clearly, the deceased persons Sharda, Ishwar Prasad and Rama Bai died due to the rash and negligent act of the accused and hence conviction of the accused under Section 304A IPC is upheld.
Shivaji Vs. State 18 One technical question that arises is whether conviction and sentence both under section 279 and section 304 A IPC is permissible under the law as the latter section is the aggravated form of the former section. If a person is guilty of an offence under s 279, IPC, and death is also caused as a result of the negligent act, he will be guilty of the offence under s 304A, IPC, because an offence under this section is a minor offence which is included in Section 304A, IPC. (See Esco Mathew v State of Kerala 1967 Ker LJ 227). An accused, convicted under s 304A, IPC, therefore, cannot be convicted under this section as the latter is a minor offence. (Shiva Ram v State 1965 All 196, (1965) 1 Cr LJ 524; Ranjit Singh v State of Haryana 1988 Chand Cr Cases 516 (P&H)) IPC. Our Delhi High Court has also taken a similar view and it was held that there was no need to impose any separate sentence for minor sentence under sections 279 because the offence under sections 304A and 338, IPC, Shivaji Vs. State 19 are similar offence in aggravated forms. Thus the sentence imposed under section 279 was set aside (See Abdul Hameed v State (1990) 41 DLT 306, 307; Hamid Khan v State 1996 (1) Crimes 465 (Del). Therefore, where a person is convicted and sentenced under section 304A IPC a separate conviction under Section 279, for the minor offence which is included in the offence under s 304A, is not justified. (See, Shiv Ram versus State AIR 1965 All 196). In the light of these authorities the conviction and the sentence imposed upon the appellant/convict/accused by the learned trial court for the offence under Section 279 IPC are liable to be set aside.
As regards conviction under section 338 IPC, as per the statement of PW6 Hari Ram, Hemraj, Ishwar Prasad, Mahi Lal and Kali Bai sustained injuries. Also same is corroborated by the testimony of PW1, Dr. Veer Singh and PW9 Dr. R.N. Sahai. But it is not proved on record that the injuries suffered by these injured Shivaji Vs. State 20 persons were of grievous injuries as defined in Section 320 IPC. Therefore, these injuries are required to be treated as simple injures and the conviction of appellant recorded by learned trial court under Section 338 IPC needs to be modified to Section 337 I.P.C.
Coming to the order on sentence, the Ld. Trial court awarded 3 months S.I. and fine of Rs. 1,000/ for offence u/S. 279 IPC; 6 months S.I. and fine of Rs. 1,000/ for offence u/S. 338 IPC and 1 year S.I. and fine of Rs. 4,000/ for offence u/S. 304A IPC and in default of payment of fine to also undergo S.I. of 3 months.
From the aforesaid discussion, the order of conviction and sentence under S. 279 IPC of 3 months S.I. and fine of Rs. 1,000/ so also conviction under Section 338 IPC and sentence of six months SI and fine of Rs.1000/ are set aside. However, learned trial court Shivaji Vs. State 21 correctly appreciated the facts and law to convict the accused under Sections 338/304A IPC.
As far as sentence for conviction under Section 304A IPC are concerned, the trial court awarded 1 year S.I. and fine of Rs. 4,000/ for offence u/S. 304A IPC and in default of payment of fine to also undergo S.I. of 3 months which is confirmed. Further appellant is sentenced to undergo 6 months SI under Section 337 IPC. Considering that the accident took place in 1994 and the matter was decided in the year 2010, i.e. almost 16 years, I feel benefit of Section 428 CrPC should be given to the appellant and the said sentences of imprisonment shall run concurrently.
In view of the above discussion, the appeal is partially allowed, accordingly. The fine paid by appellant/ convict as per conviction of the appellant under Sections 279 and 337 IPC be Shivaji Vs. State 22 directed by learned trial court to be refunded to the appellant/ convict. The judgment be sent to the server (www delhidistrictcourts.nic.in). The trial court record be returned along with the copy of this judgment. The file of the appeal be consigned to the record room. Announced in the open court on 28th day of September, 2010 (S.K. SARVARIA) DISTRICT JUDGEVIII & ADDL. SESSIONS JUDGE;
ROHINI COURTS/DELHI.