Delhi District Court
Muneer Ahmad vs The State (Nct Of Delhi) on 30 July, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS:
NEW DELHI
CA No. 93 of 17
In CA No. 30/17
Muneer Ahmad
S/o Larte Basheer Ahmad
R/o House No. 54
South Khala Park
Muzaffar Nagar, UP .......... Appellant
Vs.
The State (NCT of Delhi)
Through SHO, PS, Badarpur ..........
Respondent
Instituted on : 03.03.2017
Argued on : 23.07.2018
Decided on : 30.07.2018
JUDGMENT:
1 The appellant has assailed the judgment dated 03.12.2016 vide which he is convicted u/s 279/304A IPC and order on sentence dated 17.1.2017 vide which he is sentenced to undergo SI for six months and fine of Rs.1000/ and in default of payment Muneer Ahmad vs. State - CA No. 30/17 1 of 20 of fine to undergo SI for one month u/s 279 IPC and SI for two years with fine of Rs.10,000/ to be paid to the family of deceased and in default of payment of fine to undergo SI for three months u/s 304A IPC. The benefit of section 428 CrPC is granted to the appellant.
2 The appeal is filed on the grounds that testimony of PW1 was not properly appreciated. The prosecution has failed to show that accident has taken place due to his rash and negligent driving. Sunil Dutt, TSR driver has taken the deceased to the hospital. He has not been examined. There is no evidence against him to prove his rashness or negligence.
3 The notice of the appeal is issued to the prosecution. 4 The facts of the case are like this. Jogesh Kumar Sharma gave a statement to the police that on 28.8.2011 at 11.35am near MCD Primary School, Tajpur Pahari, Jaitpur Road, Badarpur, New Delhi, his nephew Dheeraj was riding the motorcycle Muneer Ahmad vs. State - CA No. 30/17 2 of 20 bearing No. DL5SAD0656. He was riding pillion on the motorcycle. One truck trolla bearing registration No. HR638832 came from behind in a high speed and in a rash and negligent manner and hit against the motorcycle from behind as a result Dheeraj fell on the right side of the road and came under the wheels of the truck. He fell down on the left side, i.e. footpath. The truck driver stopped the truck and came near them and fled from the spot after seeing his nephew in an injured condition. The truck was left on the spot by the driver. He has removed the injured in a TSR to AIIMS Trauma Centre. He contacted his family members on telephone and in the meantime TSR driver, i.e. Sunil Dutt got the injured admitted to hospital. The injured was declared brought dead. The accident has taken place due to rash and negligent driving of truck driver. He can identify the truck driver. His statement was recorded by the IO which led to registration of FIR. The investigation was carried out. The charge Muneer Ahmad vs. State - CA No. 30/17 3 of 20 sheet was filed against the appellant.
5 Notice of accusation for the offence u/s 279/304A IPC was framed against the appellant who pleaded not guilty and claimed trial. The prosecution has examined ten witnesses. The appellant was examined u/s 313 CrPC. His defence is that motorcyclist hit the motorcycle on the left side of his truck from behind. The accident has not taken place due to his fault. He has taken the deceased to hospital and came back to the spot. He fled from the spot on seeing the crowd. The accident has not taken place due to his fault. However, he has not examined any witness in defence evidence.
6 Ld. Trial court after hearing the Ld. APP, Ld. Defence Counsel and perusing the record has convicted and sentenced the appellant.
7 The prosecution has examined 10 witnesses.
8 PW1 Jogesh Kumar Sharma stated that on 28.8.2011 at Muneer Ahmad vs. State - CA No. 30/17 4 of 20
11.30am he alongwith his nephew Dheeraj was going on motorcycle bearing No. DL5S6556. His nephew was riding the motorcycle. They reached near Pahari Tajpur. There was a crowd. One truck No. HR638832 came from behind and hit the motorcycle. He fell down on the right side became unconscious. He regained consciousness and saw that appellant was apprehended by the public and truck was surrounded by the public. TSR was stopped by public persons. He brought the deceased in the said TSR in Trauma Centre. The appellant has fled from the spot. His statement Ex. PW1/A was recorded by the police at hospital. Site plan was prepared at his instance. The motorcycle and truck were taken into possession by the police vide seizure memos Ex PW1/B and C. He has identified the appellant. He was declared hostile and cross examined by Ld. APP for the State. During cross examination portion A to A of his statement is read over to him. He has denied the same. During Muneer Ahmad vs. State - CA No. 30/17 5 of 20 crossexamination by appellant he stated that their motorcycle was in the low speed. He saw the truck after hitting the motorcycle from behind. He does not remember on which side he has fallen down. He has received minor injuries but he was not medically examined. The site plan was not prepared in his presence. The suggestion is denied that he was not present on the spot or motorcycle was not hit by the truck.
9 PW4 Avneet stated that he does not remember the date and month of the incident. It was in 2011. On the day of accident, he was repairing his motorcycle at 11.00am at Tajpur Pahari, Badarpur. He saw that one person was lying under the truck. One motorcycle was on the spot in an accident condition. He informed the police. PCR van reached on the spot and took the said person to hospital. He was declared hostile and cross examined at length by Ld. APP for the state. During cross examination by Ld. APP he admitted that public persons gathered Muneer Ahmad vs. State - CA No. 30/17 6 of 20 on the spot and damaged the truck. He admitted that driver of the truck fled from the spot. The suggestion is denied that friend of injured took him to hospital before the arrival of PCR Van. During cross examination by the appellant, he admitted that accident has already taken place before he reached on the spot. He cannot say whether friend of the injured was present on the spot or not.
10 PW2 T U Siddiqui has conducted the mechanical inspection of the motorcycle and issued the report Ex. PW2/A. 11 PW3 HC Suraj Mal has proved DD No. 18A Ex. A1 and DD No. 20A Ex. A2.
12 PW5 Tirt Pal stated that he was Transport Manager, Rana Steel Factory, Purana Chowk, Muzaffar Nagar, UP. In 2011, he has received a notice u/s 133 MV Act and made an endorsement Ex. PW5/A on it to the effect that appellant was driver of the offending truck. The vehicle was got released on superdari from Muneer Ahmad vs. State - CA No. 30/17 7 of 20 the Court. The photographs of the truck are identified by him. 13 PW7 Ct. Mohit has verified the D/L of appellant and R/C of the offending vehicle from Transport Authority, Muzaffar Nagar, UP and submitted the report.
14 PW8 Dr. Pranith Ram, Sr. Resident, stated that on 28.8.2011 he was on emergency duty in the hospital. He has examined injured Dheeraj and prepared MLC Ex. PW8/A. 15 PW9 HC Daya Kishan has proved FIR Ex. A1 and endorsement Ex. PW9/B on the rukka on the basis of which FIR was recorded.
16 PW10 ASI Shiv Ram Singh stated that on 28.8.2011 DD No. 18A was handed over to him upon which he alongwith PW6 reached on the spot where truck and motorcycle were found. The injured was removed to hospital by the public. DD No. 20B was received by him that injured has been declared brought dead. He left PW6 on the spot and went to hospital. He collected MLC of Muneer Ahmad vs. State - CA No. 30/17 8 of 20 deceased. The eye witness Jogesh Kumar met him whose statement was recorded by him. He alongwith eye witness came back to spot and prepared the rukka. The rukka was sent to PS through PW6 for registration of FIR. The vehicles were taken into possession vide Fards Ex. PW1/B and C. Site plan Ex. PW10/A was prepared at the instance of Jogesh. He searched for the appellant but in vain. He has recorded the statement of Avnesh, who has informed the police, as well as of TSR driver. The vehicles were deposited in the malkhana.
17 On 29.8.2011 dead body was sent for postmortem. The body was handed over to LRs of deceased after postmortem. On 2.9.2011 notice u/s 133 MV Act was given to Tirt Pal, i.e. SPA of the owner. On 4.9.2011 appellant was produced in the PS by Tirt Pal. The appellant was arrested. Personal search and arrest memo Ex. PW6/A and Ex. PW10/B were prepared. The appellant was admitted to bail. The documents were seized vide memos Ex.
Muneer Ahmad vs. State - CA No. 30/17 9 of 20 PW10/C and D which were got verified. On 7.9.2011 appellant has refused to joint TIP. The eye witness has identified the appellant in the court compound after TIP. The vehicles were got mechanically examined. Statements u/s 161 CrPC were recorded. He filed he charge sheet in the court for trial. 18 PW6 HC Charan Singh has corroborated the version of PW10.
19 The appellant has not put his appearance in the court since 24.1.2018.
20 Ld. Addl. PP for the State submitted that the entire evidence on the record shows that the accident has taken place due to rash and negligent driving of the appellant and Ld. Trial Court has rightly passed the judgment on the basis of record. 21 Heard and perused the record.
22 The appellant has earlier addressed the arguments. The case was fixed for the orders. On 24.1.2018 the application for Muneer Ahmad vs. State - CA No. 30/17 10 of 20 exemption of the appellant was allowed on the grounds that he was to undergo surgery on 5.2.2018. The case was adjourned for 7.2.2018. On 7.2.2018 the application for exemption from personal appearance was again allowed on the grounds that he has undergone cardiac surgery and case was adjourned for 28.2.2018. On 28.2.2018 neither the appellant nor anyone on his behalf has turned up and thereafter NBW was issued against him. The appellant has not put his appearance despite the fact that NBW has been issued number of times. The appellant has not put his appearance. The prosecution has addressed the arguments but the appellant did not appear to address his submissions, so the appeal is decided on the basis of records.
23 The prosecution has examined 10 witnesses. PW1 and PW4 are the eye witnesses. PW1 is pillion rider of the motorcycle. PW4 has not supported the case of the prosecution. He was declared hostile and cross examined at length by Ld. APP for the State but prosecution has failed to bring out any Muneer Ahmad vs. State - CA No. 30/17 11 of 20 incriminating material against the appellant. The prosecution cannot draw any support out of his testimony. 24 PW1 has categorically stated that he was riding pillion on the motorcycle being driven by the deceased. A suggestion is put to him. He has denied the suggestion that he was not present on the spot. Mere suggestion is not enough to show that PW1 was not riding pillion on the motorcycle. His testimony shows that he has fallen on the right side of the road. His statement Ex. PW1/A is recorded by the police. Portion A to A of his statement shows that deceased came under the wheels of the truck and he has fallen on the left hand side of the road. He was declared hostile and cross examined by the prosecution. During cross examination he stated that he has not given such statement to the police. He has denied to have given such statement to the police. Merely because there is contradiction regarding the side on which he has fallen on the road, his presence on the spot cannot be doubted.
Muneer Ahmad vs. State - CA No. 30/17 12 of 20 25 He has removed the deceased in a TSR to AIIMS Trauma
Centre. His statement Ex. PW1/A shows that he was busy in making phone call to his family in the hospital and in the meantime TSR driver got the deceased admitted to hospital. The name of TSR driver, namely Sunil Dutt is reflected in the MLC Ex. PW8/A. His statement given to the police clearly shows that how the name of TSR driver was got recorded in the MLC. No question or suggestion is put to him during course of his examination that deceased was not taken to AIIMS Trauma Centre by him in a TSR for the reasons best known to the appellant. Further, TSR driver is not an eye witness. The non examination of TSR driver does not in any affect the testimony of PW1 especially when no question or suggestion is put to him that he did not remove the deceased in a TSR to AIIMS Trauma Centre.
26 PW1 has categorically stated that truck hit the motorcycle Muneer Ahmad vs. State - CA No. 30/17 13 of 20
from behind. The mechanical inspection report of the motorcycle Ex. PW2/A shows that back light and right rear indicator were damaged. The damage on the rear of the motorcycle occur only if motorcycle it is hit from behind. The subsequent damage is from the fall of the motorcycle after the accident. The mechanical inspection report of the motorcycle corroborates the fact that motorcycle was hit from behind. The defence of the appellant in his statement u/s 313 CrPC is that deceased hit the motorcycle on the left side of the truck that too from behind. The defence does not inspire confidence. No such defence is taken by him from the start of the trial. No question or suggestion is put to PW1 by him for the reasons best known to him. There is no explanation why such question was not put to PW1. It shows that defence of the appellant is an after thought which is without any merits. 27 The negligent driving can be taken out from the entire evidence on the record. A person who drives a vehicle on the road Muneer Ahmad vs. State - CA No. 30/17 14 of 20 is liable to be held responsible for his act and its result. The negligence means omission to do something which a reasonable and prudent person would do. The driver has to take reasonable care while driving the vehicle. The person behind the wheels is under an obligation to take care of the vehicles on the road. He is under implicit duty that his driving does not endanger the life of any person.
28 The testimony of PW1 shows that truck hit the motorcycle from behind. The accident has taken place during day time. The motorcycle must be visible to the appellant. The hitting of the motorcycle from behind itself shows that offending vehicle was not only in the speed but also driven in a negligent manner, otherwise he would have stopped the truck well in time. Further, it is the duty of the person on the wheels to maintain a safe distance from the vehicle going ahead of him which the appellant has failed to do. It is not the defence of the appellant that Muneer Ahmad vs. State - CA No. 30/17 15 of 20 motorcycle rider has suddenly applied the brakes or scooter rider has come in front of his vehicle all of a sudden. All theses facts show that appellant was driving the vehicle not only in the speed but also in the negligent manner. The accident has taken place due to rash and negligent driving of the appellant. Support is drawn from Paras Nath v. State of Delhi 107 (2003) DLT 169 and Jeet Lal v. State ILR (2010) Supp. 4 Delhi 558. 29 PW1 stated that he has sustained minor injuries. He was not medically examined. It is a matter of common experience that sometimes some of the occupants of the vehicles do not sustain injuries even though other occupants sustain severe or fatal injuries. The presence of PW1 cannot be doubted merely on the score that he has not sustained severe injuries. 30 PW1 has categorically identified the appellant in the court in his examination in chief. His testimony shows that he has become unconscious after the accident meaning thereby that he Muneer Ahmad vs. State - CA No. 30/17 16 of 20 has not seen the appellant till that time. He has seen the appellant after regaining consciousness on the spot. The identification of the appellant by him in the court does not inspire confidence. However, the appellant was put to TIP. The TIP proceedings Ex. A5 have been admitted by him u/s 294 CrPC which is clear from order sheet dated 21.9.2013. He has refused to participate in TIP on the ground that he has been shown to the witnesses. The appellant has admitted the factum of driving of the truck and even taken the defence that motorcyclist has hit the truck. The appellant has himself admitted the factum of driving of the truck at the time of accident. The identification or nonidentification of the appellant from PW1 does not make any difference once appellant has himself has admitted the factum of driving of the truck as well as the accident.
31 The testimony of PW1 shows that he is relative of the deceased. Mere relationship is no ground to discard the Muneer Ahmad vs. State - CA No. 30/17 17 of 20 testimony. There is no evidence of enmity on record. There is no major contradiction on record to see his testimony with the aid of spectacles. He will not allow the real culprit to go scot free. The question of false implication does not arise. His testimony is straightforward which is relied upon.
32 The entire evidence on the record shows that appellant was driving the truck in a rash and negligent manner and hit against the motorcycle from behind as a result deceased fell down and sustained fatal injuries.
33 Ld. Trial Court has rightly held him guilty and convicted u/s 279/304A IPC. There is no infirmity in the judgement. 34 One person has lost his life. The appellant was driving commercial vehicle. The deterrent punishment is more important in road accident cases so that persons who ply the vehicles on the road must bear in mind that they will have to face serious consequences including conviction and imprisonment in case of Muneer Ahmad vs. State - CA No. 30/17 18 of 20 fatal accident. The appellant cannot claim sympathy because a person who plays with fire cannot complain of burnt fingers. The leniency is in such like cases will do injustice to the family members of the deceased. A stern message has to be given to the society. To my mind, there is no ground to take a lenient view as Ld. Trial Court has already passed the sentence u/s 279/304A IPC.
35 I do not find any infirmity or perversity with respect to the conviction recorded u/s 279/304A IPC and sentence imposed u/s 279/304A IPC. The conviction and sentence u/s 279/304A IPC are upheld.
36 The appeal is dismissed.
37 The appellant has not put his appearance in the court after 24.1.2018 and the appeal has been disposed off in his absence on the basis of record. Ld. Trial Court is directed to take steps in order to secure his presence so that he shall serve the sentence Muneer Ahmad vs. State - CA No. 30/17 19 of 20 imposed upon him.
38 TCR alongwith copy of judgment copy of the judgment be sent to the Ld. Trial Court for compliance. 39 Attested copy of the judgment be supplied to the appellant free of cost.
40 TCR record alongwith copy of the judgment be sent to the Ld. Trial Court.
41 Appeal file be consigned to record room.
announced in the open court on 30th July, 2018 (SURESH KUMAR GUPTA)
Additional Sessions Judge04 & Spl. Judge (NDPS) South East, New Delhi Muneer Ahmad vs. State - CA No. 30/17 20 of 20