Delhi District Court
State vs . Pramod Kumar on 12 October, 2012
IN THE COURT OF SHRI SHAILENDER MALIK: ACMM/01
NORTH EAST, KARKARDOOMA COURTS, DELHI
State Vs. Pramod Kumar
FIR No. 430/02
U/s: 279/338/304A IPC
PS Shahdara
Date of Institution of case:02.4.2003
Date on which judgment is reserved:12.10.2012
Date on which judgment is delivered:12.10.2012
Unique ID No. 02402R0307692003
JUDGMENT
a) Sl. No. of the case : 586/03
b) Date of commission of offence : 2.12.2002
c) Name of complainant :ASI Jai Prakash
d) Name of accused, his parentage : Pramod Kumar S/o Jai
Prakash R/o: RZ 20 P, gali no. 0,
PS Sagarpur, Delhi
e) Offence complained of or proved : 279/338/304 A IPC
f) Plea of the accused :Pleaded not Guilty
g) Final Order : Convicted
h) Date of such order : 12.10.2012
FIR NO. 430/02 page 1of11 pages
i) Brief reasons for the just decision of the case:
Accused Pramod Kumar s/o Jai Parkash was sent up to face trial for the offence under section 279/338/304A IPC.
Factual matrix of the matter is that on 2.12.2002 upon receipt of call vide DD no. 32A, SI Baban Upadhaya along with Constable Avdesh had gone to the spot of accident near Shyam Lal College where they found one bus no. DL 1PB 3819 and one motorcycle bearing number DL 7SS 2105 in an accidental condition. IO met with ASI Jai Praksh at the spot who informed him that injured had already been taken to the hospital. IO while leaving the Constable at the spot went to GTB Hospital and he collected the MLC of both injured and injured Mangal Singh is stated to be not fit for statement though Rattanjeet Kaur is stated to be fit but could not give statement on account of injuries. Thereafter IO came back at the spot and recorded the statement of ASI Jai Prakash on which he prepared the rukka and sent the same for getting the FIR registered.
After registration of the FIR, IO took the vehicles involved in the accident into police possession and prepared the site plan and also got the photographs of the spot clicked. Subsequently, in pursuance of notice under section 133 M. V. Act served upon the owner of the vehicle, accused was produced . He was arrested and after the investigation charge sheet was filed.
Copy of charge sheet was supplied to the accused free of cost and after considering the material available on record Ld. Predecessor of this court vide order dtd. 24.11.2003 framed the charge for the offence under FIR NO. 430/02 page 2of11 pages section 279/338/304A IPC, to which accused pleaded not guilty and claimed trial.
In order to substantiate the charge, prosecution has examined as many as 14 witnesses.
PW1 is injured witness Ratanjeet Kaur had testified that on 2.12.02, she was going along with his father in law Mangal Singh on motorcycle no. DL 7SS 2105 and was sitting as pillion rider . PW2 has further testified that when they reached in front of Shyam Lal College one private bus bearing registration no. DL 1PB 3819 came at a very high speed and hit the motorcycle from back side as a result of which, Pw2 and her father in law sustained injuries. PW1 had identified the accused Virender Jain to be one who was driving the offending bus. Pw1 has also stated that after the accident, accused came down from the bus and after seeing PW1 and her father in law in an injured condition, accused ran away from the spot . PW2 has further testified that police persons had taken her and her father in law to GTB hospital and on 9.12.02, her father in law stated to have died whereas Pw2 stated to have received grievous injuries and a steel road was planted on her right leg.
PW2 is Surender Singh who identified the dead body of his father Mangal Singh, identification statement is Ex. PW2/A. PW3 is Subhash Chand who had also identified the dead body of his father in law Mangal Singh . Identification statement is Ex. PW3/A and handing over of dead body vide memo is Ex. PW2/B. Pw4 is HC Ram Singh, who had taken the photographs at the spot of accident. Photographs are Ex. PW4/A, B, C and Ex. PW4/D and negatives are Ex. PW4/A1 to Ex. PW4/D1.
PW5 is ASI Ramesh Chand who has testified that on 9.12.2002, FIR NO. 430/02 page 3of11 pages upon receipt of call regarding death of injured in the accident vide DD no. 88B, PW5 stated to have gone to GTB Hospital where one Surender (son of deceased) met Pw5 and identified the dead body . Pw6 is SI Manohar Lal who had mechanically inspected the offending bus no. DL 1PB 3819 and motorcycle no. DL 7SS 2105 and gave his report Ex. PW6/A and B respectively. Pw7 is HC Satish who prepared the formal FIR being duty officer of PS Shahdara upon receipt of rukka sent by SI Baban Upadhyay. FIR is Ex. Pw7/A and endorsement on rukka Ex. PW7/B. PW8 is Dr. Yogesh Tyagi who conducted the postmortem on the dead body of deceased Mangal Singh, postmortem report is Ex. PW8/A . PW9 is HC Jaiveer who had testified that on 2.12.02, when he was on checking duty near Shyam Lal College, at about 6.45 am, a blue line bus bearing registration no. DL 1PB 3819 came from the side of Shahdara Fly over and hit a motorcycle on which two persons (one lady and one gents) were riding. PW9 has further testified that at that time, the bus was at a very fast speed and hit the motorcycle from behind. PW9 further says that driver of the bus ran away from the spot and he with the help of ASI Jai Prakash stopped one TSR and he went to GTB Hospital along with the injured , and subsequently came back at the spot and SI Baban Upadhyay also reached at the spot.
PW10 is IO SI Baban Upadhyay who had testified that on 2.12.02, upon receipt of call vide DD no. 32 A, PW10 stated to have gone to the spot of accident with Constable Avdesh Kumar where PW10 stated to have met with ASI Jai Prakash. PW10 says that he found bus bearing registration no. DL 1PB 3819 and one motorcycle DL 7SS 2105 in an accidental condition. PW10 says that ASI Jai Prakash informed him that FIR NO. 430/02 page 4of11 pages the injured had already been taken to GTB Hospital. Pw10 stated to have got photographs of the spot of accident and thereafter after leaving Ct. Avdesh at the spot went to GTB Hospital where he stated to have collected MLC of Mangal Singh and Ranjeet Kaur. At that time, Doctor opined that Mangal Singh is not fit for statement whereas injured Ranjeet Kaur was opined to be fit for statement. However, at that time she could not give the statement on account of injuries and thereafter he came back at the spot where he had recorded the statement of ASI Jai Prakash and prepared rukka Ex. PW10/A and handed over the same to Ct. Avdesh for getting the FIR registered. PW10 further says that he prepared the site plan Ex. PW10/B and after the registration of the FIR, bus was taken into possession vide seizure memo Ex. PW10/C and motorcycle was taken into possession vide memo Ex. Pw10/D. PW10 further testified that on 2.12.02, upon notice under section 133 M. V. Act, Ex. Pw10/E one Ravinder Jeet Singh, owner of the bus had appeared and produced the accused being driver of the said offending bus . Accused Virender Jain was identified by the witness ASI Jai Prakash and he was arrested vide memo Ex. Pw10/F and G. Pw10 has further testified regarding taking of the DL into police possession vide seizure memo Ex. Pw10/H and taking of RC and insurance policy into police possession vide memo Ex. Pw10/I. Pw10 further says that on 4.12.02, he received the intimation regarding death of injured Mangal Singh and on 9.12.02, DD no. 88B Ex. PW10/L was received and since he was out of station therefore police file was given to ASI Ramesh.
Pw11 is Ct. Avdesh who had also testified the same facts as deposed by PW10 as he had accompanied the IO . Pw12 is SI Krishan FIR NO. 430/02 page 5of11 pages Dutt who proved the DD entry no. 32A as Ex. PW12/A and PCR call vide DD no. 2A as Ex. Pw12/B. Pw13 is Doctor Amit Kumar who proved the MLC and X ray opinion regarding injured Ranjeet Kaur and same is Ex. PW13/A. PW14 is Ravinder Jeet Singh, owner of the offending bus who proved his reply on the notice under section 133 M. V. Act and same is Ex. Pw14/A and has further testified that bus bearing no. DL 1PB 3819 was being driven by the accused on the date of the accident i.e. 2.12.02. PW14 has further testified that subsequently, he had taken the bus on superdari vide superdarinama Ex. PW14/A. Identification of the bus is not disputed and same is Ex. P1.
Thereafter PE was closed.
Statement of the accused was recorded and all the incriminating evidence coming on record was put to the accused in his statement recorded under section 281/313 Cr.P.C wherein accused had denied the entire evidence and had taken the plea of false implication.
No evidence wad led in defence.
I have heard the Ld. APP for the State and the Ld. Counsel for the accused. At the very outset, it would be appropriate to discuss the legal preposition regarding criminal liability for offence under section 304A IPC, Section 304A IPC reads as under:
"Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two FIR NO. 430/02 page 6of11 pages years, or with fine, or with both".
The requirements of this section are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash, or negligent act of the accused. In present case careful appreciation of evidence recorded would show that there is no evidence to show that it was rash or the negligent act of the accused that caused the death of the deceased. While dealing with the scope of S. 304A, IPC Sir Lawrence Jenkins observed in Emperor V. Omkar Rampratap (1902) 4 Bom LR 679:
"To impose criminal liability under S.304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans: it is not enough that it may have been the cause sine qua non".
Above said legal proposition still holds the ground. The scope of S. 304A, I.P.C. came up for consideration before Apex Court in Kurban FIR NO. 430/02 page 7of11 pages Hussein Mohammedali v. State of Maharashtra. 19652 SCR 622 = AIR 1965 SC 1616, wherein it was observed that what S. 304A requires is causing of death by doing any rash or negligent act and this means that death must be the direct or proximate result of the rash or negligent act.
Being guided by the above discussed legal requirements if we assess the evidence came on record it would be clear from the evidence of PW1 Smt. Rattanjeet Kaur that she in a very specific term has testified that when she along with her father in law was going on a motorcycle the bus bearing registration n o. DL 1PB 3819 came at a very fast speed and hit the motorcycle from back side . PW1 has further testified that she as well as her father in law had sustained injuries because of accident. This witness had identified the accused to be one who was driving the bus. PW1 has further stated that after the accident, accused ran away from the spot. Thus, the evidence of PW1 clearly make it evident as to how the accident had taken place. Witness in a categorically deposed that it was rash and negligence exclusively on the part of the accused, while driving the offending bus because of which accident had taken place. PW1 has stated that bus which was being driven in a very fast speed struck the motorcycle from behind. In the cross examination of PW1, nothing substantive could come out to disbelieve the evidence of PW1. No doubt, mere evidence of fast speed may not be sufficient for proving the rash and negligent driving as held in many judgments. But if we take the evidence of PW1 in totality, witness had not stated only about the high speed of the bus she has also stated that bus struck the motorcycle from behind and from the site plan Ex PW10/B as well as from the photographs FIR NO. 430/02 page 8of11 pages on the record the evidence of PW1 gets corroboration that bus struck the motorcycle from behind when motorcycle was on the proper side of the road.
Matter can be appreciated from another angle. The evidence of PW1 as to how accident had taken place is corroborated from evidence of PW9 HC Jaiveer who in his evidence has testified that about 6.45 am, a blue line bus bearing no. DL 1PB 3819 came from the side of Shahdara, Fly over and hit the motorcycle. PW9 has also testified that at the time of accident, bus was at a very high speed and hit the motorcycle from back side. No doubt, PW9 has not identified the accused to be driver of the bus when he came to give evidence in court but still evidence of PW9 give corroboration to the evidence of PW1 as to how the accident had taken place. So far as the identity of the accused is concerned, that is well proved on record not only by the evidence of PW1 but also from the evidence of PW14 Ravinder Jeet Singh who is admittedly the owner of the offending bus who when appeared in the witness box had testified that on the day of the accident, bus no. DL 1PB 3819 was being driven by the accused . This fact is also getting corroboration from the notice given by the IO under section 133 M. V. Act in which witness Ravinder Jeet Singh by his own handwriting Ex. PW14/A has undertaken to produce the accused and had produced the accused before the IO. Thus the fact that bus was being driven by the accused is well proved.
The argument of Ld. Counsel for the accused that during the investigation TIP was not conducted is not sustainable because TIP during investigation is a corroborating sort of evidence and is required only when IO has any doubt regarding the identity of the accused. In this FIR NO. 430/02 page 9of11 pages case, as stated above, in response to the notice under section 133 M. V.Act, owner of the offending bus had produced the accused and thereafter accused was also identified in the court by PW1 Rattanjeet Kaur who is also injured witness. Thus, non conducting of TIP during investigation is inconsequential . Similarly, the fact that PW9 had not identified the accused is also of no consequence. Ld. Counsel for the accused has also argued that statement of the injured witness was recorded after one day . This fact is also well explained by the IO that after the accident, when he went to GTB Hospital though Doctor opined witness Rattanjeet Kaur to be fit for statement, but because of injuries she was not in a position to give her statement and therefore, her statement was recorded on the next day. Moreover, delay of one day in recording the statement of injured witness has no impact on the prosecution case as a whole. Ld. Counsel for the accused has also argued that from the photographs taken at the spot the front no. plate of the bus had not been shown. This argument is also not sustainable in facts of the case, because owner of the bus PW14 had not disputed the involvement of the bus in accident.
Ld. Counsel for the accused had also relied upon judgment of Bombay High Court in Ashraf Hussain Shah Vs. State 1996 (2) Crimes 309, Judgment of Delhi High Court in Rattan Bakshi Vs. State 1998(4) Crimes 575. Having considered the judgments relied upon by the counsel, judgment in Ashraf Hussain Shah's case is of murder case and court has noted down in murder case that unexplained delay in recording the statement of one witness coupled with contradictions in the evidence create doubt as to the prosecution case. Evidently, this judgment is not applicable to the facts of the present case for the simple reason that IO FIR NO. 430/02 page 10of11 pages has given explanation regarding non recording of statement of injured Rattanjeet Kaur on the same day of incidence. Moreover, no contradiction could come in the evidence of the present case. Similarly, the judgment in Rattan Bakshi's case is also distinguishable on the facts of the present case, because in that case, very identity of the accused was in dispute . Therefore, in para 7 Hon'ble Delhi High Court has observed that on account of non production of owner of the vehicle, identity of the accused was disputed and non conducting of TIP is fatal. But in the present case, owner of the vehicle has appeared in the witness box as PW14 and identify of the accused was not in dispute. Thus, for the reasons discussed above, I find that prosecution has successfully established the charge under section 304A,279,338IPC as against the accused. Let he be heard on the quantum of sentence.
(ANNOUNCED IN THE OPEN COURT
ON 12.10.2012) (SHAILENDER MALIK)
ACMM/01,NORTH EAST
KARKARDOOMA COURT
DELHI.
FIR NO. 430/02 page 11of11 pages