Delhi District Court
At Present: H. No. 183 vs State on 2 June, 2008
: 1 :
IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE
NEW DELHI
Criminal Appeal No. 18/2007
Shri Subhash s/o Shri Ram Prasad
r/o Vill. Badli, PS Sadar,
Bahadur Garh, Haryana
At Present: H. No. 183,
Nawada Bazar, Najafgarh,
New Delhi
...... Appellant
Versus
State
...... Respondent
Date of institution : 19.03.07
Date when the arguments
were heard : 27.05.08
Date of judgment : 02.06.08
JUDGMENT
This appeal is directed against the judgment dated 19/2/2007 by which the appellant/convict was convicted by learned Metropolitan Magistrate, New Delhi under sections : 2 : 279/337/304A IPC and was sentenced vide order dated 24/2/2007 to undergo simple imprisonment for a term of two months and also to pay fine of Rs 300/ for the offence punishable under section 279 IPC, to undergo simple imprisonment for two months and also to pay a fine in the sum of 300/ for the offence under section 337 IPC and to undergo simple imprisonment for a term of one year and also to pay a fine of rupees 500/ for the offence punishable under section 304A IPC. In default of the payment of fine of Rs 300/ each the appellant was directed to undergo simple imprisonment for five days each for the offences under section 279/337 IPC. In default of payment of fine of rupees 500/ for the offence punishable under section 304A IPC the appellant was directed to undergo simple imprisonment for 15 days.
PROSECUTION CASE:
In short, the prosecution case before learned trial court was that on 12/12/1993 at about 3.15 p.m. at Bijwasan Road near MCD Primary School, village Chhawla, Delhi the accused was driving truck No.DIG6502 in a manner so rash or negligent as to endanger human life and personal safety of others or to be likely to cause hurt or injury to other persons : 3 : and while driving so the said vehicle he struck against the motorcycle and caused simple injuries on the person of one Satpal the pillion rider and caused death of one Ajit Singh who was riding the motorcycle.
CHARGE AND PLEA OF THE ACCUSED:
The Notice under section 251 CrPC for the offences under section 279/337/304A IPC was given to the accused to which he pleaded not guilty and claimed trial. EVIDENCE:
In support of its case the prosecution has examined nine witnesses in all namely PW1 Dr. Archana , PW2 HC Umed Singh, PW3 Satpal, PW4 Dr. B. Swain, PW5 Naresh, PW6 Ram Lal, PW7 SI Bhim Singh, PW8 SI Ram Dev and PW9 HC Kurban Ali.
ARGUMENTS:
It is argued on behalf of the appellant that the judgment of trial court is based on conjectures and surmises. The written arguments filed on behalf of the appellant before learned trial court were not considered in the judgment so it is liable to be set aside. It is argued that the only eyewitness/injured in this case PW3 Satpal has stated in the crossexamination that the motorcycle was being driven at a : 4 : speed of 50 or 60 km per hour so the accident has occurred due to rash driving of the motorcyclist and not of the appellant truck driver. It is argued that PW3 Satpal has not signed any memo like personal search memo, seizure memo of motorcycle, seizure memo the truck, seizure memo of driving license, and site plan prepared by the investigating officer at the spot which shows that he was not present at the spot at the time of accident. It is also argued that PW 3 could not give the number of the motorcycle even in the cross examination of the learned Additional Public Prosecutor recorded before learned trial court. The next argument on behalf of the appellant is that the owner of the truck PW5 Naresh has admitted in the crossexamination that he has two drivers on the truck and has only one truck. This witness did not support the prosecution story as he has failed to produce any record showing that the appellant was driving the vehicle on the date of the alleged accident. Therefore, it is very much doubtful that appellant was driving the vehicle/truck at the time of alleged accident. It is also argued that the test identification parade of the accused was not got conducted which shows that the appellant has not seen the accident and he has been falsely implicated in this case. It is : 5 : argued that in a statement under section 161 CrPC PW3 Satpal has stated that accident occurred at 3.15 p.m. while in the statement before court he had given the time 2.30 or 2.45 p.m.. There is no corroboration of the statement of PW3 by any independent witness. Therefore, the appellant/convict is entitled to acquittal.
The arguments of learned Additional Public Prosecutor are that the appellant was arrested at the spot and the fact that he was driving the vehicle in question in a rash and negligent manner is proved by the statement of PW3 and the owner of the truck in question has also proved that the appellant was driving the truck in question of the date of accident. The prosecution, therefore, has proved its case against the appellant/convict beyond reasonable doubt so the appeal is liable to be dismissed.
FINDINGS:
It is true that in the crossexamination PW5 Shri Naresh the owner of the truck in question has stated that he had only one truck and two drivers but in the cross examination he has denied the suggestion that the accused was not the driver on truck No. DIG6502. In the : 6 : Examinationinchief this witness has stated that on the day of accident, the truck was being driven by the accused Subash then present in the court on that day. PW3 the injured and eyewitness Shri Satpal has identified the accused as the person who was driving the truck in question at the time of accident. PW8 SI Ram Dev Singh has stated that he found the truck and motorcycle in accident condition and the driver of the truck Subash son of Ramprasad was also present at the spot. Therefore, the statements of the witnesses conclusively prove that the appellant was driving the truck in question at the time of accident and was arrested at the spot by the investigating officer. If the appellant was arrested at the spot, the fact that test identification parade of the appellant was not conducted loses significance. Therefore, the accused does not derive any benefit out of the fact that no test identification proceedings of the accused were conducted on the request of the investigating officer.
The fact that the motorcycle in question was being driven at the speed of 50 or 60 km per hour by the deceased in itself does not show that the accident occurred due to mistake or rash diving of the victim deceased. The manner : 7 : in which the accused was driving the truck in question is reflected from the statement of the injured PW3 Shri Satpal who has stated that the truck came from the front side and the driver suddenly turned the truck on the left side without giving any signal due to which the motorcycle hit the truck and they both felt the on the road. Further, in the cross examination this witness PW3 has denied the suggestion that the accident occurred as the motorcycle was being driven at high speed and they lost the control and fell down. The testimony of the injured PW3 cannot be doubted not only because he being injured is the eyewitness of the accident in question but also that he has given the exact reason which led to the accident in question. The mere fact that no public witnesses had come forward to support his evidence and his testimony remained uncorroborated by any independent witness does not discredit his testimony as no particular number of witnesses is required to prove a fact as per section 134 of the Indian Evidence Act. Further a short difference in the time of accident given in statement under section 161 CrPC of the PW3 and statement before the learned trial court is not material nor the fact that this witness did not sign memos prepared by IO in the facts and : 8 : circumstances of the case.
The death of the motorcycle rider Ajit Singh in the accident in question is proved by PW3 the injured Satpal and by the investigating officer of the case and also by PW4 Dr B. Swain who conducted postmortem on the dead body of Ajit Singh. The simple injuries on the person of the injured PW3 Shri Satpal are proved by PW6 the record clerk who has brought the MLC registered and has proved the MLC Ex PW6/B pertaining to PW3 Shri Satpal. Therefore, besides proving rashness and negligence on the part of the truck driver/appellant at the time of the accident the simple injuries on the person of PW3 Shri Satpal and death of the victim Shri Ajit Singh are also proved by the prosecution attracting the provisions of section 279/337/304A IPC against the appellant/convict.
The Metropolitan Magistrate in his judgment under section 355 CrPC is only required to give brief statement of the reasons for the decision and not all the details of the arguments and the facts and the evidence on record. The fact that the learned Metropolitan Magistrate has briefly : 9 : referred to the statement of witnesses and his statement of reasons is sufficient compliance of provisional section 355 CrPC and he has considered the facts and law properly to arrive at the correct conclusion with regard to the offences under section 337 and 304 IPC under which the appellant is convicted by him. It cannot be said that he has not considered the written arguments filed on behalf of the appellant. Even otherwise, these argument are specifically dealt with in this appeal which is only extension of the case against the accused before learned Metropolitan Magistrate.
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 th section 279 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 section 279 as the latter is a minor offence. (Shiva Ram v State 1965 All 196, : 10 : (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, 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 the sentence awarded by learned trial court for the offence under section 337 IPC the same looks to be proper. However, the sentence of imprisonment awarded under section 304 A IPC of one year simple imprisonment looks to be on higher side keeping in view the fact that the : 11 : accident in question occurred about 15 years ago and the appellant/convict has faced the agony of trial and proceedings in the appeal for such a long period and also keeping in view the fact that the motorcycle was also on a highspeed of 50/60 km per hour as stated by PW3 the injured Shri Satpal in his crossexamination. Therefore, in my view the sentence of imprisonment imposed under section 304A IPC needs to be modified from one year simple imprisonment to six months simple imprisonment. However, the sentence of fine imposed under section 304A IPC needs to be maintained.
RESULT OF APPEAL:
In view of the above discussion the conviction and sentence passed by learned trial court against the appellant/convict for the offence under section 279 IPC are set aside. The conviction of the appellant/convict for the offence under section 337 IPC is maintained. The conviction of the appellant/convict under section 304A IPC and also sentence of fine of rupees 500/ imposed by learned trial court are maintained but the sentence of imprisonment awarded under section 304A IPC is modified from one year simple imprisonment to six months simple imprisonment.
: 12 : Both the substantive sentences under sections 337/304A IPC shall run concurrently. Fine deposited by the appellant under section 279 IPC be refunded to the appellant by the learned trial court. The period of detention already undergone by the appellant during the investigation and trial of this case shall set off in term of imprisonment imposed against the appellant under section 428 CrPC. The bail bonds furnished in the appeal are cancelled. The trial court record be returned along with the copy of this judgment. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The appeal filed be consigned to the record room.
Announced in the open court on this 2nd day of June, 2008 ( S. K. SARVARIA ) Additional Sessions Judge New Delhi