Delhi District Court
State vs Pritam on 16 July, 2012
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s Pritam
FIR No. 472/00
PS: Saraswati Vihar
JUDGMENT
A) The date of commission : 11/07/2000
of offence.
B) Name of the complainant : HC Ramphool No. 299/NW
PP Saraswati Vihar,
PS Saraswati Vihar, Delhi
C) Name of the accused : Pritam
S/o. Sh. Nakli Singh
D) Offence complained of : U/s 279/304 A IPC
E) The plea of accused : Pleaded not guilty.
F) Final order : Convicted U/s. 279/304 A IPC
G) The date of such order : 16.07.2012
Date of Institution : 18/07/2001
Judgment reserved on : Not reserved
Judgment announced on : 16/07/2012
State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 1/16
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief, the case of the prosecution is that on 11/07/2000 at around 10:30 pm at a public way infront of Bagga link, Saraswati Vihar, ring road, Delhi, within the jurisdiction of Police Station Saraswati Vihar, accused was found driving a vehicle bearing registration No. DL 1 RA 6580 in a rash and negligent manner so as to endanger human life and safety of others & while so driving caused death of Avinash Chand.
2. After completion of investigation challan was filed by the police U/s 279/304 A IPC of which cognizance was taken by the Ld. Predecessor of this court.
3. Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused.
4. Vide order dated 09/08/2002 notice U/s. 251 Cr.P.C was served upon the accused for trial of offences U/s 279/304 A IPC by the Ld. Predecessor to which accused pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence.
State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 2/165. So far prosecution has examined 11 witnesses to prove the allegations against accused.
A brief scrutiny of examined PWs is as under.
PW-1 Ram Gopal and PW-2 Rajesh Kumar deposed that on 12.07.2000 they identified the dead body of deceased Avinash.
PW-3 SI Umed Singh deposed that on 13.08.2000 he mechanically inspected TSR bearing registration No. DL 1 RA 6580 and scooter No. DL 8S P 5493 and proved his report as Ex. PW-3/A and Ex. PW-3/B. PW-4 Nathi Lal is the registered owner of the offending vehicle. He deposed that at the time of accident, the TSR was being driven by accused Pritam and proved his reply to Notice U/s 133 M.V. Act as Ex. PW-4/A. He further proved superdarinama vide which he got released the offending vehicle on superdari as Ex. PW-4/B. PW-5 is Ct. Sunil Kumar who was partly examined in chief on 14.08.2007 and his further chief examination was deferred on that day. His testimony was not concluded. As per settled law, his testimony cannot be read in evidence.
PW-6 SI Rajender Dabas deposed that on 17.07.2000 he got identified the dead body of deceased Avinash.
PW-7 Vinod Kumar Sharma deposed that in the year 2001 at about 10:00 pm he saw one two wheeler scooter and a TSR moving on the road State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 3/16 and that the TSR struck against the two wheeler scooter from behind. He deposed that the number of TSR was 5680. He further deposed that he cannot identify the TSR driver as sufficient time has elapsed.
PW-8 ASI Dharampal proved the FIR as Ex. PW-8/A and his endorsement on rukka as Ex. PW-8/B. PW-9 HC Parveen proved the DD No. 29 PP as Ex. PW-9/A. PW-10 ASI Ramphool deposed that on 11.07.2000 he was posted at PP Shakti Vihar, PS Saraswati Vihar and on that day on receipt of DD No. 29 he along with Ct. Sunil reached at Balaji hospital and obtained the M.L.C No. 106 of injured Avinash Chand. In rest of his deposition he has detailed about the steps taken during the course of investigation. He proved the rukka as Ex. PW-10/A, site plan as Ex. PW-10/C, seizure memos vide which TSR/offending vehicle and accidental scooter were taken into possession as Ex. PW-10/D & Ex. PW-10/E respectively. He proved the seizure memo vide which DL of the accused was seized as mark B. He further proved the arrest memo vide which accused was arrested as Ex. PW-10/F and personal search memo of accused as Ex. PW-10/G. PW Ct. Ashok Kumar was examined as PW-10. He is a formal witness and has deposed about the steps taken during the court of investigation.
State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 4/166. P.E. was closed on 10.02.2012 and thereafter statement of accused was recorded under section 281/313 Cr.P.C, to which he claimed innocence but preferred not to lead D.E. Thereafter the matter was fixed for final arguments.
7. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused and have gone through the evidence and the material available on record.
8. The following facts needed to be proved by the prosecution to bring home the guilt of the accused:-
a) That the alleged vehicle bearing registration No. DL 1 RA 6580 was being driven by the accused at the time of alleged accident.
b) That the alleged accident happened due to the said vehicle being driven by the accused in rash and / or negligent manner.
c) That due to the alleged accident, the death of deceased Avinash Chand occurred.
9. It is submitted by Ld. Defence Counsel that prosecution has failed to prove the identity of the accused as the driver of the offending vehicle and that the star witnesses of the prosecution, PW-7 Vinod Kumar Sharma has not identified the accused nor the offending vehicle. Further that PW-7 Vinod Kumar Sharma in his examination-in-chief has stated only part of the registration no. of the offending vehicle as 5680, which is actually DL 1 RA State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 5/16 6580. Ld. Defence counsel has only argued on the point of identity of the accused. He has not argued on his rashness/negligence or the cause of death of deceased Avinash Chand.
10. Per contra Ld. APP for the State has submitted that the prosecution has been able to prove its case against the accused beyond reasonable doubt and he should be convicted.
11. From the rival arguments and material on record I am of the opinion that the prosecution has been able to prove their case beyond shadows of reasonable doubt.
12. Identity of the accused and the offending vehicle There is not an iota of doubt regarding the identity of the accused as the man behind the wheels of the offending vehicle on the fateful day, at the relevant time.
Though PW-7 Vinod Kumar Sharma has not identified the accused yet it is explicit from the testimony of PW-4 Nathi Lal, who is the registered owner of the offending vehicle that the accused was driving the offending vehicle at the relevant time. PW-4 has deposed that on the fateful day i.e on 11/07/2000 the accused was the driver of the offending vehicle bearing no. DL 1 RA 6580 and also identified him in the court. He also deposed that he State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 6/16 produced the accused before the police on 10/08/2000 after being served upon notice U/s. 133 M.V Act on 10/08/2000. The said witness was not cross examined by the accused despite opportunity given and no suggestion as to false implication of the accused in place of some other was given to him.
Hon'ble GAUHATI HIGH COURT in Niranjan Sutradhar v. State of Tripura, (Gauhati) 2006 CriLJ 3262 has held "From what have been pointed out above, it is abundantly clear that the vehicle No. TRL-1489 came at a high speed and the same knocked down P.W. 4 causing injuries on his person as indicated herein above. The question, now, is as to who the driver of the said vehicle, at the relevant point of time was ? In this regard, it is noteworthy that P.W. 6, who is, admittedly, the owner of the said vehicle, has given evidence to the effect that it was the accused, who had been engaged by him as a driver of the said truck and that on the day of the occurrence, it was the accused, who had taken out the vehicle from the house of P.W. 6. Thus, in the absence of anything showing to the contrary, it is abundantly clear that the vehicle, in question, was, at the relevant point of time, driven by the accused-petitioner, for, had someone, other than the accused-petitioner, driven the said vehicle, it was within the special knowledge of the accused-petitioner and he had the onus to show that not he, but someone else had driven the vehicle at the relevant point of time. Thus onus has not been discharged by the accused-petitioner".
Thus, after the testimony of PW-4, it was upon the accused to prove the contrary that not he, but someone else was driving the offending vehicle at the relevant time.
State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 7/16Further it has come in the testimony of PW-10 IO ASI Ramphool that at the instance of eyewitness/PW-7 Vinod Kumar Sharma, accused whom he correctly identified in the court was arrested. Most importantly, when the accused was served notice U/s. 251 Cr.P.C on 09/08/02 by Ld. Predecessor of the court he pleaded not guilty but had admitted that he was the driver of the TSR/offending vehicle but accident was not caused by his negligence.
Further, during his examination u/s 281/313 Cr.P.C the accused gave evasive answers and deposed that he was arrested but a false case has been planted upon him. I am also in consonance with submissions of Ld. APP for State that when the accused was not apprehended at the spot and had managed to escape from there, more reliance has to be placed on circumstantial evidence than ocular. Accused should have led evidence in his defense to show that he was not the actual offender and has been falsely implicated, which he chose not to. The accused was arrested vide arrest memo Ex. PW-10/F, his personal search was taken vide memo Ex. PW-10/G and his DL was taken into possession vide memo mark X. He has not denied the factum of him being arrested or his DL being seized. Had he been falsely implicated, he could have approached the court or senior police officials for the same but the same was not done.
Now coming to identity of the offending vehicle since learned Defence Counsel has argued that PW-7 Vinod Kumar Sharma only gave part of registration No. of the offending vehicle, that too wrong.
State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 8/16Now, it has to be seen that testimony of PW-7 was recorded almost 8 years of the incident and human memories apt to blur with passage of time. Further, a person is not expected to depose with mathematical precision and error due to lapse of time/fading of memory has to be given due weightage. Only a tutored witness or the one which has any specific reason to remember all the details could have deposed the exact registration number. Stating of a no. which is very similar to that of the offending vehicle goes to show that the witness has indeed witnessed the incident.
In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 , it was observed that a witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment, but that would be no ground for discarding the evidence of the witness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
Stating of the registration number of offending vehicle as 5680 instead of 6580 by PW-7 does not create any dent in the case of the prosecution. It was held in State (Delhi Administration) v. Desh Raj 2007(3) C.C State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 9/16 Cases(HC)234 by Hon'ble High Court of Delhi that mere mentioning of wrong bus number does not absolve the respondent of the liability of which he is charged.
In view of the above discussions, in particular by the unrebutted testimony of PW-4, no doubt remains as to the identity of the accused person as the driver of the offending vehicle or that of the offending vehicle being TSR bearing registration No. DL 1 RA 6580.
13. Rash and Negligent Act What is rash/negligence varies from case to case and there cannot be any fixed parameters for judging rashness/negligence. At the same time, there cannot be any assumption/presumption of the same. Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand is the gross and culpable or proper case and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. ( Niranjan Singh v . State (Delhi Administration), (Delhi) 1996(1) R.C.R.(Criminal) 320 .
Meaning of expression negligent act and rashness came up for discussion in the case titled as Prabhakaran v. State of Kerala, (SC) State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 10/16 2007(3) R.C.R. (Criminal) 605 and the Hon'ble Apex Court Held :-
(1) A negligent act is an act done without doing something which are a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it - A rash act is a negligent act done precipitately.
(2) Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law.
(3) Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
It was held in Ishwar Singh V. State of Haryana 2000 (2) R.C.R. (Criminal) 571 That the driver cannot be presumed or assumed to be rash. Such accident are now innumerable with the tremendous increase in traffic but still the negligence or rashness of an accused must be exhibited, explained and proved on record as to what was omitted by the driver of the offending vehicle which he should have take care of & as to what act was committed by him which led to the accident.
Now coming to the fact that whether the accused was driving the offending vehicle in rash and/or negligent manner. To prove the same, prosecution has examined Vinod Kumar Sharma as PW-7. PW-7 Vinod State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 11/16 Kumar Sharma deposed that "The TSR struck against the two wheeler scooter from behind.". The very fact that the accused hit the deceased from back side proves his negligence and rashness.
I am fortified on this aspect by law laid down by Hon' ble Delhi High Court in Jeet Lal v. State. (Delhi) 2010(8) AD(Delhi) 217 "Every motor vehicle that comes out of the factory has some essential features and one the essential features of a motor vehicle is brake. The brake is provided in the motor vehicle so that while driving the motor vehicle, the driver of the motor vehicle applies brakes to avoid any kind of collision between motor vehicle and other commuters/ objects. If the motor vehicle is running at a moderate say speed between 40-50 kms/hrs, with the application of brakes, the vehicle gets stopped within a few feet and if the brake is applied with some force, the vehicle would stop instantly.
The pedestrians have a right to walk on the pedestrian way and if there is no pedestrian way, they have a right to walk on the side of the road. All motor vehicles drivers have a duty towards pedestrian and merely because a pedestrian is walking on the side of the road, no motor vehicle driver has a right to hit the pedestrian from behind. The very fact that the truck driver did not care for the persons walking ahead on the road and did not apply brakes to save the pedestrian walking on the road itself shows that the truck driver was negligent. It is not the case of the petitioner that the deceased in this case had suddenly jumped before the truck. No suggestion was given to the witness that the deceased was not walking on the side of road or had suddenly come into the middle of the road in front of the truck. The negligence of motor vehicle driver who does not look ahead of the vehicle and does not bother to see the nature of traffic to keep appropriate speed so that the vehicle does not hit others, is writ large. Every motor vehicle driver is supposed to drive the vehicle in accordance with road conditions, traffic density and State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 12/16 presence of pedestrians on the road. Where the traffic density is more and pedestrians are also walking on the road, the motor vehicle driver is supposed to drive in such a manner that he does not hit the pedestrian and the motor vehicle would stop immediately on application of brakes. If this caution of driving a vehicle in a proper manner is not taken, this would amount to negligence and if the motor vehicle hits somebody from behind, due to such driving or non-application of brake, this is criminal negligence. "
Also it was held by Hon'ble Delhi high Court in Paras Nath v. State of Delhi, (Delhi) 2004 CriLJ 731 "In the case in hand the appellant hit the scooterist from behind. It is not the case of the appellant that the scooterist had applied brake all of a sudden and therefore the appellant was taken unaware which led the appellant's truck hitting the scooter from behind. Act of negligence can be clearly attributed to the petitioner in this case as he is solely responsible for causing this accident without any fault of the scooterist. Rashness or negligence can be determined from the manner in which the accident had take place"
Further, Hon'ble Punjab & Haryana High court in Jagir Singh v. State of Haryana, (P&H) 2010(1) R.C.R.(Criminal) 576 has held "It has been argued by the learned counsel for the revision petitioner that Fateh Singh, PW2 had not supported the version of the prosecution, in whose presence the vehicles involved in the accident were taken into possession. However, this plea has already been considered by the learned Trial Court and moreover, Fateh Singh is not the eye-witness of the occurrence. It has further been argued that the only eye-witness of the State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 13/16 occurrence, Sushil Kumar, has deposed that the truck was coming from backside of the scooter and that he came to know about the accident when Subhash had already fallen down from the scooter. However, the mere fact that truck came from behind the scooter and hit against it due to which both the riders of the scooter had fallen down goes to prove that the truck was being driven in a rash and negligent manner by its driver. The statement of complainant found corroboration from site plan Ex. PW4/E, of the place of occurrence. Driver of the truck should have taken proper care while overtaking the scooter as the scooter was going ahead of the truck".
In light of the facts of the case, accused has not pleaded if the victim suddenly came in front of his TSR and he took all the precautions required to be taken like blowing of horn to warn him etc. Since as per mechanical inspection report brakes were found to be in working condition it goes to show that accused didn't apply them in time or speed was such that even after applying them, the vehicle could not be stopped in time.
A pedestrian or a vehicle going ahead of another cannot contemplate that it has to take care of the vehicle coming from its back also. The accused should have been careful enough not to be in a hurry and to apply the brakes diligently. The vehicle was mechanically inspected and found fit for road test. So it cannot be said if it was due to any mechanical defect in the vehicle.
In view of the above discussions and judgments relied upon it can be deduced safely that the accused acted rashly and negligently while driving the offending vehicle.
State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 14/1614. Cause of injuries of the victim The next requirement to prove the case against the accused is whether the deceased died due to the rash and negligent act of the accused. Having proved the identity of the accused and the accident taking place due to his rash or negligent driving the prosecution was required to prove that the act of the accused was Causa Causan and not the Sine Qua Non. To hold the accused guilty it must be proved on the record that the act of the accused must be the proximate cause of the death of the deceased and not the remote cause.
PWs have stated that immediately after the accident, injured Avinash Chand (since deceased) was taken to Balaji hospital, Delhi where M.L.C No. 106 dated 12.07.2000 was prepared by Dr. P.K. Jain. Dr. P.K. Jain had opined the nature of injured to be "grievous" and that the patient was unfit for statement. P.M. Report No. 1543/00 dated 17.07.2000 was prepared by Dr. B.N. Acharya wherein he opined that all he injured are antemorem in nature and caused by vehicular accident. Accused did not dispute the genuineness of the M.L.C and P.M. Report and the same was exhibited as Ex. X 1 & Ex. X 2 respectively.
Therefore, in view of above discussions and cited case laws the prosecution has sufficiently proved on the record that the proximate cause of the death of deceased was the accident caused by the accused by his rash and negligent driving.
The contentions of the the Ld. Defence counsel that no public person State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 15/16 as stated by the complainant who were on the spot at the time of alleged incident were made witnesses by the IO at the spot which casts serious doubts upon the prosecution story does not hold water in my opinion. There was no requirement of the same and absence of any public person(apart from 'interested' witnesses examined) has not affected the prosecution story in any manner. The Indian Evidence Act does not specify any particular number of witnesses required to prove a fact and a fact can be proved even by one witness whether he is official or independent public witness depending upon the facts and circumstances of the case. Law requires that evidence has to be weighed and not counted (Ambika Prasad and Ano. Vs State 2002 (2) FIR No. 130/99 16/22 CRIMES 63 (SC) . The Evidence Act does not lay down about any number of witnesses needed for proving a particular fact.
Thus, in view of the above discussion, the corroborative testimonies of the prosecution witnesses examined and the documents on record, the prosecution has been able to prove the guilt against the accused beyond any shadow of doubt. Accordingly the accused is held guilty for offences u/s 279/304 A I.P.C and convicted accordingly.
A copy of this judgment be supplied to the accused free of cost and the matter be now listed for arguments on the point of sentence.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on July 16th, 2012.
State V/s Pritam FIR No. 472/00 PS: Saraswati Vihar Page No. 16/16