Delhi District Court
Mohd. Ashraf vs The State on 31 August, 2016
Mohd. Ashraf v. State
IN THE COURT OF SH. VIMAL KUMAR YADAV,
ADDL. SESSIONS JUDGE-01:(CENTRAL)/THC:DELHI.
Crl. Appeal No. 26/15
New Case No. 54763/2016
Mohd. Ashraf
S/o Sh. Samiullah
R/o Village Muslim Tola Chap,
P.S. East Champaran,
District Motihari, (Bihar).
........... Appellant / Accused
Versus
1. The State
2. Sh. Munna Gupta
S/o Sh. Ram Ashrey
R/o Jhuggi, Rani Jhansi Road,
Motiya Khan, Paharganj,
Delhi. ......... Respondent
Date of Institution : 02.01.2015
Date on which reserved for judgment: 29.08.2016
Date of judgment : 31.08.2016
Present: Appellant in person.
Ms. Madhu Arora, Ld. Addl. PP for the State.
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Mohd. Ashraf v. State
JUDGMENT
1. Aggrieved by the impugned order on sentence dated 22.11.2014, as reflected by the title of the appeal and prayer in the appeal the appellant Mohd. Ashraf has preferred the instant appeal. Albeit the contents of the appeal and arguments were assailing the judgment too. Ld. Counsel for the appellant despite opportunity given for this very purpose, did not come forward to clarify it. As such not confirming to the prayer, the appeal is hereby disposed off through this judgment.
2. In this appeal an application u/s 5 of Limitation Act has also been filed. The impugned order passed by the learned trial court was on 22.11.2014, whereas the appeal was filed on 02.01.2015. Thus, the delay of two days was there. However, the said delay was condoned through order dated 02.01.2015.
3. Before adverting to the grounds on which the appellant has assailed the order on sentence, the indispensable facts are required to be recapitulated which go as follows. On 22.07.1997, at about 10.15 am, on Rani Jhansi Road, Opposite Khandari Brothers, appellant was driving truck bearing registration No.DBL 9438 in a rash and negligent manner and hit Sidh Nath, who was the egg vendor & others and caused multiple grievous hurt to six person. Complainant Munna being an eyewitness, stated that accused was driving the truck in rash and negligent manner, ran over the pavment and four injured Ramu, Vicku, Rajender and Sidh Nath succumbed to the injuries. Statement of complainant, Munna Gupta, led to the registration of the instant case as FIR No.493/97 under section 279/338/304A IPC by Police Station, Pahar Ganj.
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4. The matter was taken up, by the police of Police Station Pahar Ganj and was investigated upon, which shaped up in a charge sheet filed under section 279/338/304A IPC and Section 146 r/w 196 of the Motor Vehicle Act, 1988 as the vehicle was not having the valid insurance too. A notice was served upon the accused for the offence under section 279/338/304A IPC and Section 146 r/w 196 of the Motor Vehicle Act, 1988 on 16.03.1999, after compliance of section 207 Cr. P.C. Expectedly, the appellant pleaded not guilty to the allegations contained in the notice against him and that paved the way for the trial in which, the prosecution, in order to substantiate the allegations against the appellant / accused, examined Twenty Three witnesses and thereafter statement of accused under section 313 Cr. P.C. was recorded. The accused not only controverted the evidence against him, but also stated that he is innocent and has been falsely implicated in this case by the Manager. He, however, did not opt to lead evidence in his defence.
5. The Trial Court after considering the contentions raised by the contesting sides held the appellant guilty under section 279/338/304A IPC and 146 r/w Section 196 of M.V. Act and convicted him through judgment dated 11.04.2014 and sentenced him to undergo simple imprisonment for the period of two years for the offence under section 304A IPC; simple imprisonment for the period of one year for the offence punishable u/s 338 IPC. Convict was also directed to pay compensation of Rs.50,000/-.
6. Ld. Counsel for appellant had challenged the judgment dated 11.04.2014 and order on sentence dated 01.07.2014 by filing an appeal before the appellate court, wherein learned appellate court had observed as under:
11. On going through the Trial Court record, this court finds that after having passed judgment of conviction on 11.04.2014, learned CA No. 54763/16 Mohd. Ashraf v. State Page No. 3 of 13 Mohd. Ashraf v. State Additional Chief Metropolitan Magistrate directed the SHO to submit Victim Impact Report. Victim Impact Report dated 27.06.2013 came to be submitted to the Trial Court and thereafter the impugned order on sentence came to be passed. But learned trial court has not fully complied with the directions contained in Satya Prakash Vs. State 1 by Hon'ble High Court.
12. As per directions contained in para 96 of the judgment, court shall provide the copy of Victim Impact Report to the accused as well as the victim and shall afford them a reasonable opportunity to respond to the same. The court shall hear the accused, victim (s) and State before passing the order on the sentence and compensation.
7. Thereafter, the matter was remanded back to the learned trial court and learned trial court through the impugned order dated 22.11.2014 noted that "in terms of the directions contained in the said para, copy of victim impact report was supplied to the Lrs of the deceased as well as injured Pappu and reasonable opportunity was granted to them to reflect upon the said report". Vide order dated 22.11.2014, Learned trial court sentenced the convict to undergo simple imprisonment for the period of two years for the offence under section 304A IPC; simple imprisonment for the period of one year for the offence punishable u/s 338 IPC. Convict was also directed to pay compensation of Rs.30,000/-.
8. The counsel for the appellant has argued that Learned Trial Court wrongly convicted the innocent appellant without considering the material facts of the case. The first ground taken by the appellant is that statement of PW-5, PW-6, PW-7, PW-9, PW-10, PW-12, PW-13, PW-16 & 1 CA No. 54763/16 Mohd. Ashraf v. State Page No. 4 of 13 Mohd. Ashraf v. State PW-17 cannot be relied upon. It is argued that Ld. ACMM did not consider the evidence of PWs in toto. Learned counsel submitted that it is a well settled proposition of law that when two views are possible, then the one which support the purpose of the enactment and goes in faovur of the appellant, ought to be taken. It is further submitted that testimony of witnesses is full of contradiction, thus, should not be relied upon. There is no such witness who says that he had seen the accused driving the offending vehicle in a rash and reckless manner. Additionally, the driver could not have been seen since the accident took place at 10:15 PM for the reason that most of the victim fell unconscious. There was darkness on the road also which must have contributed in the entire scenario making it difficult to see the driver of the offending vehicle. In such circumstances, the benefit of doubt should be given to the accused.
9. As regards the so called variations and contradictions in the case / statements of the witnesses, the Court has to see as to whether the soul of the case is alive or not as variations are bound to be there. It is only those facts which matter, verily, having the potential to alter the outcome / inference are required to be considered and not the insignificant one.
10. It is settled principle that the variations in the statements of witnesses which are neither material nor serious enough to affect the case of the prosecution adversely are to be ignored by the courts. { Ref. State Vs. Saravanan and Anr. [(2008) 17 SCC 587]; and Sunil Kumar Sambhudayal Gupta Vs. State of Maharashtra [2010 13 SCC 657]}.
11. It is also a settled principle that statements of the witnesses have to be read as a whole and the Court should not pick up a sentence is isolation from the entire statement and ignoring its proper reference, use CA No. 54763/16 Mohd. Ashraf v. State Page No. 5 of 13 Mohd. Ashraf v. State the same against or in favour of a party. The contradictions have to material and substantial so as to adversely affect the case of the prosecution. Reference in this regard an be made to Atmaram & Ors. Vs. State of Madhya Pradesh [(2012)] 5 SCC 738.]
12. Learned counsel argued that appellant insurance company had already given the compensation amount to the complainant, LRs of the deceased and other injured persons. It is also submitted that appellant remained in JC during the long trial before the learned trial court and faced agony of trial since 1997. It is argued that learned ACMM erred in not considering the provision of M.V. Act, albeit, not elaborated. And finally that the sentence is disproportionate as the appellant should have been considered for probation.
13. Ld. Addl. PP, on the other hand, maintained that the judgment order does not suffers from any infirmity as sufficient and cogent evidence is there showing not only the complicity of the accused, but the manner of driving, therefore, the judgment does not requires to be interfered with.
14. It can thus be inferred that rashness and negligence is a state of mind where one goes ahead with something, oblivious of the probable consequences, about which he can't plead ignorance rather they lurk somewhere in his mind. If one persists with a particular act knowing about the probable fall outs he is said to act rashly/recklessly.
15. Where a reasonable prudent man is doing something then he is supposed to do that particular act with the requisite precautions warranted by the act and the situation or should avoid those which ought to be not there; and any lapse on this count, of, either doing or not doing, and CA No. 54763/16 Mohd. Ashraf v. State Page No. 6 of 13 Mohd. Ashraf v. State still going a head with the act would render such act as a negligent act.
16. In view of the aforesaid circumstances, culpability creeps in, in case an act is done rashly and negligently. Such an act if results in to loss of life, property or limbs, then the criminal law comes in to picture. In a case U/s 279/304A IPC, if the driving is found rash and negligent and resulted in death of human being then such act falls in to the scope and ambit of Section 279/304 IPC and is punishable accordingly.
17. In the case of Nageshwar Shri. Krishna Ghobe Vs. State of Maharashtra [(1973) 4 SSC 23], this Court observed that the statement of the witnesses who met with an accident while traveling in a vehicle or those of the people who were traveling in the vehicle driven nearby should be taken and understood in their correct perspective as it is not necessary that the occupants of the vehicle should be looking in the same direction. They might have been attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. The Court held as :-
"6. In cases of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own per-occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom- and it is only a matter of coincidence- that a person may already be looking in the CA No. 54763/16 Mohd. Ashraf v. State Page No. 7 of 13 Mohd. Ashraf v. State direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the matter, whatever be the reason for this disinclination. If, however, they do feel interested in going to the spot in their curiosity to know some thing more, then what they may happen to see there, would lead them for form some opinion or impression as to what in all likelihood must have led to the accident. Evidence of such persons, therefore, requires close scrutiny for finding out what they actually saw and what may be the result of their imaginative inference. Apart from the eye-witnesses, the only person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like the present is the driver himself or in certain circumstances to some extent the person who is injured. In the present case the person who died in the accident is obviously not available for giving evidence. The bhaiya (Harbansingh) has also not been produced as a witness. Indeed, failure to produce him in this case has been the principal ground of attack by Shri. Pardiwala and he has questioned the bona fides and the fairness of the prosecution as also the truthworthiness of the version given by the other witnesses."
18. The prosecution has examined the witnesses to establish as to who all were injured by examining the relatives of the deceased and injureds. The testimony of PW2, PW3, PW7, PW8 and PW9 can be looked into in this context. The MLC / Postmortem examination Report has also been proved by the prosecution through the testimony of PW1 and PW10. Even, if the testimony of PW10, being a Record Clerk is given no weightage, still testimony of Dr. Akash Jhanhji examined as PW1 is CA No. 54763/16 Mohd. Ashraf v. State Page No. 8 of 13 Mohd. Ashraf v. State sufficient to bring the factum of death of atleast one person, who was involved in the accident. The injureds Himmat Singh and Pappu have also been examined as PW4 and PW5 respectively, whose testimony is unrebutted as is the evidence of Dr. Akash Jhanjhi. Both PW4 and PW5 have deposed that they met with an accident at Rani Jhansi Road at about 10.15 p.m. in July 1997, wherein, a truck driven by the appellant / accused in rash and negligent manner hit them. PW4 and PW5 both got injured and sustained fractures, apart from other injuries. Thus, it is sufficient in itself to prove that the injury sustained by them were grievous in nature. Both of them have stated that apart form them, 4-5 other persons had received injuries and four of them died, apparently due to the injury received in the said accident. Thus, factum 'of accident', injuries of grievous nature to two persons and death of four victims of the accident come on record.
19. The accused has been identified as the driver of the offending vehicle and in any case, he was apprehended from the spot thus, there is no doubt about his complicity in the offence. Testimony of PW7 can be looked into in this context, which has fully supported the case of the prosecution who has maintained his stand throughout on vital aspects and has been able to come out unscathed and unshaken from the cross- examination. He has denied the stand, taken by the counsel for accused that it was dark and he could not have seen the accused. He is further denied that the driver of the vehicle ran away from the spot and the accused was mere Conductor. Thus, no doubt remains about the involvement of the appellant in the offence.
20. The manner of driving has been deposed by the witnesses as rash and negligent. In, any case, it is clear that the victims of the accident were hit while they were having boiled eggs from the 'rehdi' standing at CA No. 54763/16 Mohd. Ashraf v. State Page No. 9 of 13 Mohd. Ashraf v. State footpath. The truck went on to footpath from the road in itself shows that the driver of the vehicle was not careful and cautious in his driving and that is why the truck went on the footpath leaving the road. No further proof of rash, reckless, careless and negligent driving is required. Testimony of Ct. Chotu who was on Patrolling Duty, is to the effect that he had noticed the accident, though after hearing the noise and reached there. He has categorically deposed that truck bearing no. DBL 9438 was involved in the accident in which six persons got injured and were lying there. He had also stated that driver of the truck, i.e. appellant identified him during in his evidence was there. The PCR came at the spot and took the injured persons to hospital. During the period when IO left the spot, the custody of the accused was handed over to Ct. Chotu Singh. The testimony of Ct. Chotu Singh has gone unrebutted and unchallenged. In these circumstances, there is no doubt about the manner of driving or involvement of the accused. The accused has taken a plea in his statement recorded under section 313 Cr. P.C., that he was implicated by one Manager namely Lekhraj, but he has not brought any evidence to substantiate this aspect. Therefore, in such circumstances, there is no doubt about involvement of the accused / appellant in the offence.
21. Ld. Trial Court has taken into consideration all the relevant aspects while considering the case of the appellant, the issues raised in the judgment dated 11.04.2014. It is, thus, evident that judgment does not requires any interference.
22. The contention of the Ld. Counsel for the appellant that the sentence is disproportionate and is not correct. The death of the four persons and grievous injuries to two speak volumes about the manner of driving other. In such circumstances, the suitable and commensurate sentence, which seemingly Ld. Trial court has awarded is there. The CA No. 54763/16 Mohd. Ashraf v. State Page No. 10 of 13 Mohd. Ashraf v. State appellant could not show any mitigating circumstances in his favour, rather aggravating circumstances are aplenty. The aspect with regard to the benefit of probation to the accused / appellant has also been dealt with by the Ld. Trial court appropriately and there is no scope for the appellant to be considered for such a relief in view of the judgments on this specific issue.
23. In this context reference can be made to the judgment B. Nagabhushanam v. State of Karnataka, 2008 (5) SCC 730 : AIR 2008 SC 2557; Dalbir Singh v. State of Haryana, (2002) 5 SCC 82 : Air 2000 SC 1677, where the crux of the observations was as follows:
"Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under section 304-A I.P.C. as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. This sis the role which the courts can play particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles".
In the judgments State of Punjab v. Balwinder Singh, 2012 (2) SCC 182 : AIR 2012 SC 86, it is observed:
"Considering, the increased number of road accidents, the court, on several occasions, has reminded the criminal courts dealing with the offences relating to motor accidents that they cannot treat the nature of the offence CA No. 54763/16 Mohd. Ashraf v. State Page No. 11 of 13 Mohd. Ashraf v. State under Section 304-A I.P.C. as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act 1958".
Reference in this context can be made the judgments in Sanjay Rambhau Patil v. State of Maharashtra, 2010 CrLJ 1407(Bom); Zamir Khan v. State, 2010 CrLJ 4044 (Bom) In the judgment Dalbir Singh v. State of Haryana, 2000 CrLJ 2283 : AIR 2000 SC 1677, "The Supreme Court has held that the benefit of this Act is not to be extended to persons convicting of the offence of causing death by rash and negligent driving".
Also to the same effect, is the observations in Ganpat Singh v. State of Rajasthan, 1998 CrLJ 716 (Raj).
In State v. Girdhari Lal, 2007 CrLJ 4347 (HP), it is observed:
"Accused had caused death by rash and negligent driving but was released on probation. It was held that benefit of probation could not be accorded to the accused held guilt under Section 304-A as it would amount to ignoring of law laid down by the Apex Court in Dalbir Singh v. State of Haryana. 59
24. Thus, it was evident that the benefit of probation is not available to the appellant and has been rightly denied.
25. In any case, no mitigating circumstance or contributory negligence etc. could be brought on record, nor any such plea is there and as such, the sentence is appropriate considering the fact that by one lapse, carelessness, negligence or rashness, the appellant has effaced 04 lines CA No. 54763/16 Mohd. Ashraf v. State Page No. 12 of 13 Mohd. Ashraf v. State and caused grievous injuries, scars, pain and physical complications of which shall remain through out for these who survived in the accident, and those who have left this mortal world have left is permanently.
26. As a result, there is ground available either to interfere with the judgment or the sentence. As such, this appeal is dismissed having no substance in it. Appellant be taken into custody to serve the sentence.
Copy of this judgment be provided to appellant.
TCR be returned back and appeal filed be consigned to Record Room.
Announced in the open Court
on this 31st of August, 2016 (VIMAL KUMAR YADAV)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI
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