Delhi District Court
1 State vs . Zakir on 30 January, 2014
1 State Vs. Zakir
IN THE COURT OF MS AANCHAL MM-8, (CENTRAL),
TIS HAZARI COURTS, DELHI.
In the matter of:
State
Vs.
Zakir
FIR No. 367/04
P.S. I.P. Estate
JUDGMENT
1. Sr. No. of the case : 203/2/12
2. Date of institution : 28.06.2005
3. Name of the complainant : SI Lal Sigh
4. Date of commission of offence : 13.01.2004
5. Name of accused : Zakir S/o Sh. Wasir
Ahmed R/o C-221, Gali
No.8, C- Block, Harizon
Basti, Near Gharoli and
Mulla Colony, Mayur
Vihar, Phase-3, Delhi-96
6. Offence complained of : 279/304A IPC & U/s 185,
3/181 MV Act
7. Plea of guilt : Accused pleaded
not guilty
8. Date of reserving the Judgment : 26.11.2013
9. Final order : Convicted U/s 279/304A IPC
Acquitted U/s 185 & 3/181
MV Act
10.Date of such Judgment : 26.11.2013
Judgment dated 26.11.2013 in FIR No. 367/04 Page 1 of 12
2 State Vs. Zakir
BRIEF REASONS FOR DECISION
1. The present case arising out of FIR No. 367/04 is based on the allegations that on 13.1.2004 at about 4.45 pm on Vikas Marg, Near Slip Road, Delhi Secretariat, Delhi within the jurisdiction of PS. I. P. Estate, the accused was driving bus bearing No. DL-1P-A-7171 rashly and negligently and under the influence of liquor without possessing valid driving license in such a manner so as to endanger human life and personal safety of others and while driving so, he stuck bus against Jaipal and Narender and caused their death not amounting to culpable homicide. After the investigation, charge-sheet was filed.
2. Provisions of S-207 Cr.P.C. were complied with and after hearing the arguments, notice of allegations for the commission of the offence punishable u/s 279/304A IPC and U/s 185, 3/181 MV Act was given by the Ld. Predecessor of this Court on 17.11.2005 to which the accused pleaded not guilty and claimed trial.
During the course of trial, vide order dated 25.2.2011 accused was given the amended notice U/s 279/304A IPC r/w 185/3/181 MV Act by the Ld. Predecessor of the Court on account of the fact that in the earlier notice dated 17.11.2005, fact of the death of deceased Narender could not be put to accused and that only fact of the death of deceased Jai Pal was put to him. Accordingly accused was given opportunity to recall prosecution witnesses for the purpose of their cross examination. Accused adopted the cross examination of prosecution witnesses already done by him . Statement of accused was also recorded to this effect vide order dated 26.8.2011.
3. In order to bring home the guilt of the accused prosecution produced following witnesses.
(a) PW1 Sh. Uma Shankar identified the dead body of deceased Jaipal and witness of handing over of body to father of deceased vide memo Ex.PW1/A
(b) PW2 Amarjeet Singh identified and received the dead body of deceased Narender vide memo Ex.PW2/B. Judgment dated 26.11.2013 in FIR No. 367/04 Page 2 of 12 3 State Vs. Zakir
(c) PW3 Bharat identified and received the dead body of deceased Jaipal vide memo Ex.PW1/A.
(d) PW4 Kanta Parsad identified and received the dead body of deceased Narender vide Ex.PW2/B
(e) PW5 SI Harbans Lal was Duty Officer and he deposed that he registered FIR vide Ex.PW5/A on the basis of rukka Ex.PW5/B brought by Ct. Vikrant sent by SI Lal Singh.
(f) PW6 Roop Singh is registered owner of the offending bus No. DL-1P-
A-7171 and he deposed that he replied to notice U/s 133 MV Act, which is Ex.PW6/A and produced the challan slip to IO which is seized by the IO vide seizure memo of challan slip Ex.PW6/B and got released the bus on superdaginama vide Ex.PW6/C. He further deposed that at the time of incident , bus was driven under his supervision and accused was the only driver working permanently.
(g) PW7 ASI Mehar Singh deposed that he challanned the driver of the bus No. DL-1P-A-7171 as he was not in uniform.
(h) PW8 Ct. Krishan Kumar was posted at Traffic Circle Daryaganj and he stated that while he was on duty under IP Flyover on 13.11.2004 , at about 4.45 pm he saw the bus no. DL-1PA-7171 of route No.118 coming from Raj Ghat side and that the said bus hit the motorcycle No. DL-4SL-9264 which was coming from the side of ITO that due to this hit two boys sitting on motorcycle came under bus and died . Witness also stated that after accident driver of the offending bus fled from the spot and IO recorded his statement. On 30.1.205 PW8 also identified the accused and witnessed the arrest of the accused vide memo ExW8/A and personal search vide Ex.PW8/B.
(i) PW9 HC Subhash Chand photographed the spot of accident and proved the photographs as Ex.PW9/A1 to Ex.PW9/A15.
(j) PW10 T.U.Siddiqui conducted the mechanical inspection of Yamaha motor cycle no. DL-4S-L-9264 and bus no. DL-1P-A-7171 and deposed that his report s are Ex.PW10/A and Ex.PW10/B respectively.
Judgment dated 26.11.2013 in FIR No. 367/04 Page 3 of 12(k) PW11 HC Purshottam produced the DD No.5 dated 13.11.2004 and deposed that vide this diary the departure of Jai Pal Singh for his duty point at under IP Flyover alongwith other staff namely ASI Phool Singh, HC Virender , Ct. Ashok and Ct. Krishan was recorded.
(l) PW12 HC Devender Kumar deposed that he arrested and personal searched accused vide Ex.PW8/A and PW8/B on 30.1.2005 when he was produced in PS by Roop Singh.
(m)PW13 Dr. Sunil identified the handwriting and signatures of Dr. Rohit as present upon post mortem report Ex.PW13/A and PW13/B.
(n) PW14 Ct. Birender Singh deposed that he witnessed the arrest, search of the accused conducted vide Ex.PW8/A and B by HC Devneder Singh when accused was produced by the owner of the bus at PS and Ct. Krishan Kumar had reached thee and identified the accused.
(o) PW15 Ct. Vikrant went to spot with IO SI Lal Singh and deposed about the procedural steps taken . He has also deposed that he took the ruqqa to the PS on 13/11/2004, got the case FIR registered and handed over the copy of FIR and ruqqa to IO. He has also proved seizure of bus, motorcycle and garments of deceased vide Ex.PW15/A to Ex.PW15/D.
(p) PW16 Retd. SI Lal Singh is IO of the case. In his testimony on oath , he narrated on the lines of the prosecution version and deposed the entire investigational steps taken by him during investigation and also proved ruqqa Ex.PW16/A, statement of Ct. Krishan Kumar vide Ex.PW16/B , notice U/s 133 MV Act Ex.PW 16/C.
(q) After conclusion of Prosecution Evidence, accused was examined U/s 281 Cr.P.C. vide which he was put all the incriminating evidence as available on record to which he denied and submitted that he was falsely implicated in the present case and neither any accident had taken place from the offending bus nor he was driving rashly or negligently. Though he opted to lead evidence but failed to produce any witness in his defence.
Judgment dated 26.11.2013 in FIR No. 367/04 Page 4 of 124. In order to prove the facts under notice in the present case, prosecution is required to prove following facts:
•The accused was driving the offending vehicle •This driving caused death not amounting to culpable homicide to bring a case of S-304A IPC.
•Driving was rash or negligent.
•At the time of driving, the driver was in drunken condition to extent as provided u/s 185 Motor vehicle Act and the vehicle was driven without any valid license.
•Whether the accused was driving the offending vehicle? PW6 who was the registered owner of the vehicle/bus in present case and holding the GPA and getting the same driven under his supervision from 5-12-2003 to 13-11-2004, deposed that the bus was being driven by accused on 13-11-2004. PW6 was not cross-examined at all on behalf of accused. Thus, this fact is deemed admitted that the accused was driving the bus bearing No. DL1PA 7171 on the relevant day. PW6 further deposed that he produced the challan slip Exb.P1 to IO. PW7 ASI Mehar Singh deposed that he challaned the driver of the vehicle bearing NO. DL1PA 7171 vide Ex P1 for being without uniform. Ct Krishan Kumar PW8 deposed that he saw the accused driving the bus bearing No. DL1PA 7171 when it hit the motorcycle on which two deceased were riding lastly and then running away from the spot. It is strongly argued that this witness has been unable to identify the accused during examination in chief, therefore his deposition is unreliable. The presence of this witness at the spot is doubted on behalf of the accused. This Court has given considerable thought to this submission. Ex P1 bears the name and parentage of accused and no of vehicle. It is not the case that this challan slip is forged or antedated one. In fact, the veracity of challan is not questioned during cross- examination. Reasonably, the name and parentage of driver could not appear on challan till it is disclosed by one himself. Therefore, the presence of particulars on this challan slip establishes that the accused was driving Judgment dated 26.11.2013 in FIR No. 367/04 Page 5 of 12 6 State Vs. Zakir this vehicle at about 4:35 pm within Darya Ganj Circle. Time of incident is 04:45 pm. PW11 HC Purushaottam had produced the original DD5 dt 13-11-2004 Exb. PW11/1 which proves that PW8 was assigned duties to present under IP flyover whoch is nothing but a few steps away from the spot. The veracity of this DD is not challenged at all. PW8 was cross-
examined at length on behalf of the accused. He consistently deposed about his presence near the spot at the time of incident. He also specified his position at point DX1 in site plan at that time. The point DX1 overrules the possibility that the driver of the offending bus would have been beyond his vision and he could have no chance to see him. The depositions of PW7 and PW8 cannot be doubted only because they are the police officers. Nothing is brought on record which could justify the falsehood in the depositions of PW7 and PW8. Therefore the testimonies of these witnesses are truthful and inspire the confidence and the fact that the accused was driving the offending bus bearing No. DL1PA7171 on 13-11-2004 at the time of incident is proved.
•Whether this driving caused death not amounting to culpable homicide to bring a case of S-304A IPC.
PW13 Dr Sunil appearing for Dr Rohit identified the signatures and handwritings of Dr Rohit having seen him writing and signing in official course of duty. He proved that Post mortem report of deceased Narender and Jaipal were prepared by Dr Rohit in which it is opined that the possible cause of death of both victims is vehicular accident. Despite the fact that PW13 being Assistant Professor in Department of Forensic Medicine, MAMC, New Delhi, is an expert, no question has been put to him to present any challenge to the cause of death. Thus, the cause of death is not disputed and it is proved that the death of the both of the victim had taken place due to driving of offending bus.
•Whether Driving was rash or negligent Judgment dated 26.11.2013 in FIR No. 367/04 Page 6 of 12 7 State Vs. Zakir •Rashness or negligence on the part of driver is disputed strongly and it is emphasized by Ld defence Counsel that no photographs except one of the rear side of the motorcycle are shown to prove the fact that the bus had hit the motorcycle from behind, therefore, it makes the prosecution case doubtful and further it is not proved that it was being driven with fast speed.
•The fact of rashness and negligence is the derivative of a number of facts and attending circumstances. The Prosecution has proposed to prove this fact by direct evidence and PW8 Ct Krishan Kumar is the witness of facts. He stated that he was present at point DX1 shown in site plan at about 4:45 pm on 13-11-2004 when bus bearing bearing No. DL1PA7171with route no 118 approaching to Vikas Marg from Rajghat side via slip road with high speed hit the motorcycle on which two persons were riding and one of the rider was crushed by this bus. Then driver ran leaving the bus and the bus reversed on its own and crushed the other rider and then collided with foot path. This witness stated that he tried to apprehend the accused but could not overpower. During his cross-examination, he explained that he shouted loudly requesting public to apprehend the accused. It is not disputed on behalf of the accused that the bus in question was involved in the incident. No substantial question is put to this witness regarding the manner of accident to question the rashness or negligence on the part of the driver of offending vehicle but his presence at the spot is disputed. This witness has stated about his position at the relevant time and his conduct after the incident. His presence is corroborated with Ex PW11/1 which is not disputed during trial. Hence, the presence of PW8 is not doubtful at the spot at the time of incident.
•The Seizure memo show that the bumper of driver side of offending vehicle was found bent at the time of its seizure. It is also reflected in inspection report. Though there is no disagreement that no damage at the rear side of the motorcycle is found as per mechanical inspection report, it is specifically opined by the vehicle inspector during his cross-examination that the photograph Judgment dated 26.11.2013 in FIR No. 367/04 Page 7 of 12 8 State Vs. Zakir PW10/A12 reflects that the bus definitely had hit the motorcycle from behind. Further he also suggested that the speed and size of vehicle affects the damages appearing on the point of impact. These depositions and documents prove that it was the fall of riders from motorcycle was the effect of hit received from offending vehicle.
•Besides PW8, Ct Vikrant and IO have also deposed that on the spot, one male body was found lying crushed under the front right tyre and another male body was lying between front and rear tryes of bus and one Motor cycle was lying ahead the bus. The back side of the bus is deposed to be on footpath. The position of the bus as reflected in photographs speaks itself that the bus collided with the motorcycle at a time when it could not be controlled at all by the driver and despite the fact that it was given a sharp turn at the last moment, it could not prevent the forthcoming fate.
•Site plan Ex. PW8/C shows that the place of the accident is nothing but just after the turn. Skid marks are shown to be present at the right side of bus, motorcycle and point of accident. It is the fundamental rule of driving that the vehicle should be made slower to slow down at the turns. Omission of the same is the inherently rash act. Presence of skid marks at the right side proves the fact the offending vehicle was driven at comparatively high speed which was not acceptable at a turn after which huge traffic merges. •Further, the act of driver to run away from the spot leaving the bus unattended after the incident as deposed by PW8 is proved also negligent and rash as it was the unattended bus which reversed on its own and caused the death of one other life.
Thus, in totality, the above discussed deposition and evidence produced prove that driving was rash and negligent.
•At the time of driving, the driver was in drunken condition to extent as Judgment dated 26.11.2013 in FIR No. 367/04 Page 8 of 12 9 State Vs. Zakir provided u/s 185 Motor vehicle Act and the vehicle was driven without any valid license.
As no evidence, documentary or oral is led by prosecution to prove these fact that accused was under the infludence of liquor at the time of driving, hence, the fact remains unproved to substantiate the allegations for offence U/s 185 MV Act.
HC Devender has deposed that accused failed to produce driving license. No document is shown / produced on record that accused was asked to produce D/L. Further neither Ct. Birender Singh, Roop Singh and Ct. Krishan Kumar who were well present on the date of production and arrest of accused by HC Devender have not deposed that accused was asked to produce D/L. Hence, the sole deposition of HC Devender does not inspire confidence. Therefore, fact of allegation U/s 3/181 MV Act are held as not proved.
5. In view of the above discussion, it is held that the prosecution has successfully proved its case beyond reasonable doubt for the offence punishable U/s 279/304A IPC. However, the prosecution has failed to prove its case for the offences punishable u/s 185 and 3/181 Motor Vehicle Act for which the accused Jakir is acquitted. Therefore, accused Jakir stands convicted for the commission of offence punishable u/s 279/304A IPC. He shall be heard separately on the point of sentence.
Announced in Open Court (AANCHAL)
Today, 26.11.2013 MM/08/C/DELHI
26/11/2013
Judgment dated 26.11.2013 in FIR No. 367/04 Page 9 of 12
10 State Vs. Zakir
FIR NO. 367/04
PS: IP Estate
30.1.2014
Present: Ld. APP for the State.
Convict in person with ld. Counsel.
Sh.Sita Ram father of deceased Narender
Sh. Gharbharan father of deceased Jai Pal
ORDER ON THE QUESTION OF SENTENCE:-
1. Arguments on the point of sentence are heard. Victim Impact
Report , Statements of respective father of two deceased are
perused carefully.
2. It is submitted on behalf of convict that a lenient view be taken in view of the fact that convict has faced the trial for about 10 years and that he belongs to low income group . On the contrary Ld. APP prays for strict punishment on the ground that lives of two young married men were lost due to rash and negligent driving of the convict driver. Father of two deceased submit that appropriate sentence may be passed.
3. Hon'ble Supreme Court has observed following in Dalbir Singh v. State of Haryana [(2000) 5 SCC 82],:
"13.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 304A IPC as attracting the benevolent provisions of Section 4 of the PO 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. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the Judgment dated 26.11.2013 in FIR No. 367/04 Page 10 of 12 11 State Vs. Zakir death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is 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."
4. Considering the nature and gravity of the offence committed by convict, I am not inclined to invoke the provision of Section 360 of Cr.P.C. or the Probation of Offenders Act, 1958. The convict was driving the offending bus at comparitvely high speed on the turn due to which the motorcycle driven by one of the deceased was hit. He further ran away from the spot leaving the bus in a position that it moved back and caused the death of the 2nd rider of the motorcycle. It is explained that convict had brought up in deprived background as his father had expired when he was only 1½ yrs old and his brother had to work for meager income and in such circumstances, convict had been working hard. Further he had left the driving being touched with the incident. Convict had been ap- pearing regularly during trial. He appears to be genuinely remorseful for the act. He has two daughters aged about 14 and 16 years to brought up and solely dependent upon him. He is earning his livelihood by work- ing as labourer. Having thoughtful consideration of the entire matter, the facts and circumstances of the case and the nature and gravity of the of- fence, the convict is punished with following for the following offences:
Offence Fine In default Sentence Nature 279 IPC Nil. Nil. 3 months SI 304A IPC Nil. Nil. 1 year SI
5. Sentences shall run concurrently and the convict is granted the benefit of S-428 Cr.P.C.
Judgment dated 26.11.2013 in FIR No. 367/04 Page 11 of 126. Life of two young persons upon whom their families were dependent , had lost into the incident. The respective father of two deceased sub- mitted that the dependents of deceased have been awarded claim from MACT. From the material , victim impact report and statement of father of two deceased, it can not be opined that their dependence have not been compensated sufficiently. Accordingly no recommen- dation for compensation or rehabilitation of any dependent of de- ceased is made at this stage . However, the dependents of deceased may approach Delhi Legal Service Authority to seek compensation as per law.
7. The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid cell through the Secretary, DLSA Room No.287, Tis Hazari Court Delhi.
8. Copy of the judgment and order of sentence be given to the convict free of costs, and another copy to be sent to the District Magistrate, as per the provision of Section 365 of the Cr.P.C.
Given under my hand and seal of this court on 30th January,2014 AANCHAL MM-06/Central/Delhi/30.01.2014 Judgment dated 26.11.2013 in FIR No. 367/04 Page 12 of 12