Delhi District Court
Amit @ Amit Kumar vs The State on 13 November, 2018
IN THE COURT OF SH. VIMAL KUMAR YADAV, SPECIAL JUDGE
CBI, (P.C. ACT)08, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
Amit @ Amit Kumar
S/o. Late Sh. Atvir Singh
R/o. Village Ajnara, P.S. Sikarpur
Distt. Bulandshahar (U.P.)
......Appellant
Versus
The State
(Govt. NCT of Delhi)
......Respondent
Crl. Appeal No. : 306/2018
CNR No. : DLCTO10107122018
Date of institution : 20.08.2018
Date of reserving order : 20.10.2018
Date of pronouncement : 13.11.2018
J U D G M E N T
1. Aggrieved by the judgment/conviction dated 04.07.2018, holding the appellant above named liable under section 279/304A IPC, 115/194/66/192A/3/181 of Motor Vehicle Act, through which the Ld. Trial Court convicted and sentenced the appellant through order dated 21.07.2018 as under: Offence Imprisonment Fine 279 IPC to undergo rigorous imprisonment for a period of 06 months 304A IPC rigorous imprisonment for a period of two years 66/192A of M.V. sentenced to pay fine of Rs.5,000/, in default Act simple imprisonment for twenty five days Crl. Appeal No. 306/18 Amit @ Amit Kumar Vs. The State Page No. 1 of 10 115/194 of M.V. Act sentenced to pay fine of Rs.5,000/ in default simple imprisonment for 25 days
2. It was also ordered that all the sentences shall run concurrently. A sum of Rs.30,000/ was also ordered to be paid as compensation to the LR's of the deceased and the aforesaid order on sentence dated 21.07.2018 also came to be assailed by the appellant. The appeal was filed, challenging the judgment dated 04.07.2018 and order on sentence dated 21.07.2018 and the same hereby disposed of through this judgment.
3. The crux of the allegations against the appellant are that he while driving vehicle bearing No. UP13D5376, a milk tanker on 13.02.2006 caused an accident at about 07.45 A.M. on the nukkad/corner of Farashkhana that too after violating the no entry zone. The child, who was the victim of the accident, could not survive. The appellant was caught at the spot itself. The complaint of the father of the deceased, who was accompanying the child, led to the registration of the FIR bearing No. 60/2006 by police station Hauz Qazi. Through the impugned judgment and order on sentence, the Ld. Trial Court reached to the conclusion that the appellant was driving the aforesaid tanker in a rash and negligent manner and caused the accident which resulted to the death of a child. The appellant had violated the No Entry condition also and the vehicle was not having the proper permit too.
4. While assailing the impugned judgment, it is contended that the evidence coming on record falls short of the requisite ingredients which are required to be established by the prosecution in order to drive home its care against the appellant. Apart from that it Crl. Appeal No. 306/18 Amit @ Amit Kumar Vs. The State Page No. 2 of 10 is submitted that the case of the prosecution is perse unbelievable as the alleged place of incident is so thickly populated and commercialized that vehicle of the size of a tanker cannot even enter, leave alone driven at a fast speed as alleged. It is further submitted that the testimonies are afflicted by the contradictory and inconsistent narrative which weakens the prosecution's case further and makes it unbelievable and finally the site plan, mechanical inspection report, MLC and postmortem report etc have not been proved which further corrodes it, and above all, the Investigating Officer has not been examined leaving a lot to be tested and proved. Therefore in such circumstances, the impugned judgment cannot be sustained. The offences under the Motor Vehicle Act, it is asserted, are also not made out as the owner of the vehicle has already paid the fine, and therefore the present appellant can't be held responsible in any manner and can't be punished either. In order to strengthen his arguments, Ld. Counsel for the appellant has placed reliance on Sarjeet Singh Vs. State 2012 [2] JCC 1338 and Vinod Kumar Vs. State 2011 [4] JCC 2786 whereas on the point of sentence placed reliance on Manvender Singh Vs. State 2017 [3] JCC 2114.
5. Additional Public Prosecutor, on the other hand, chipped in with the contention that the testimonies on record are very clear and categorical inasmuch as not only the father of the deceased, who was present when the accident took place, has deposed about most of the vital aspects of the case, but apart from him, some local residents and local shop keepers have also deposed about the accident and while referring these aspects, the Additional Public Prosecutor for State has referred to the testimony of PW1 Md. Laiq, PW2 Smt. Nuzahat, PW4 Aftab Alam, PW5 Md. Irfan and PW6 Tahir Hussain. So far as the site plan, mechanical inspection Crl. Appeal No. 306/18 Amit @ Amit Kumar Vs. The State Page No. 3 of 10 report, MLC etc. are concerned, it is pointed out by the Ld. Additional Public Prosecutor for State that the appellant has admitted these documents, therefore the prosecution was not required to prove those documents and referred the admission/denial of documents in which the appellant vide his statement dated 07.01.2012 has admitted the documents, that is, the mechanical inspection report Ex.C1, MLC No. 14951 dated 13.02.2006 of the deceased Ex.C2, postmortem report No. 129/2006 dated 13.02.2006 of deceased Danish Ex.C3 and the death summary dated 13.02.2006 bearing No. 5655/2017 Ex.C4. It is further informed by the Additional Public Prosecutor for State that the Investigating Officer could not be examined as he is no more, therefore no adverse inference can be drawn due to the non examination of the Investigating Officer.
6. As regards the violation of the provisions of the Motor Vehicle Act, the prosecution has brought enough evidence through the testimony of PW11 Rakesh Kumar, PW12 Anil Kumar and PW 13 and PW15 i.e. Ram Pravesh Prasad and Anil Kumar respectively, who have testified about the relevant records from the R.T.O. Bullandsher and R.T.O. Ghaziabad as well as from the Department of Publication, Ministry of Urban Development, Government of India with regard to the Gazette notification Ex.PW13/A indicating areas which were notified as No Entry Zones visavis the heavy goods vehicle and the medium goods vehicle such vehicles were prevented from plying throughout the 24 hours of the day in the areas notified in the Gazette. Hauz Qazi area is there in the said Gazette notification as item number 43 where a prohibition was there for the entire day i.e. for 24 hours.
7. I have considered the submissions made by the contesting sides and have perused and gone through the record as Crl. Appeal No. 306/18 Amit @ Amit Kumar Vs. The State Page No. 4 of 10 well. The prime focus of the Counsel for the appellant has been on the fact that the factum of driving the tanker at a fast speed is improbable and impossible in the area where the alleged incident took place and therefore rash and negligent driving cannot be attributed to the appellant. However, speed has nothing to do with the rashness and negligence. A person may be rash or negligent even if he is driving at a slow speed. Rashness or negligence is a state of mind where one fails to take care of the essential precautions as per the situation while doing something or fails to take the precautions which one ought to have taken in the given circumstance and acts in a manner which is oblivious of the consequences. A person may be very careful even at high speed whereas a person may be very casual and careless at a normal speed. Therefore speed alone cannot be a criteria to decide rashness or negligence though it may be one of the factors. Where it is established that one who was driving a vehicle at a fast speed but has no control over it or fails to control the speed then only he can be treated as negligent or careless and not otherwise.
8. In any case, the circumstances of the instant case reflects that the appellant has a tendency to violate the norms and laws as he entered into a 'No Entry Zone' which was a no entry zone without any exception for all 24 hours. He entered with a small tanker in morning hours when the socalled thickly populated and commercialized area was not so crowded. The site plan, which is part of record and can't be proved due to the nonexamination of the Investigating Officer as he died before his examination could take place. Since the site plan is on record, thus, it may be referred as the PW1 has categorically stated that the site plan was prepared at his instance. Additionally, the statement of witnesses, apart from PW1, Crl. Appeal No. 306/18 Amit @ Amit Kumar Vs. The State Page No. 5 of 10 that is PW4 Aftab Alam, PW9 Constable Ajay Kumar are all indicative of the place of accident, and thus strengthen the site if not the site plan on record. The site plan reflects that the accident had taken place on a turn and the appellant seemingly did not bother and fail to take the requisite precautions and hit a child, who ultimately lost his life. Therefore, it cannot be said that he was not rash or negligent. First of all he should not have entered into a No Entry Zone qua which he has no explanation as the evidence is there on record to the effect that his vehicle was found at the no entry zone and he was apprehended at the spot itself, which leaves no doubt about his identity too. All the vital witnesses have, in unison, stated about the manner in which the vehicle was being driven by the appellant, have identified him in the Court and have also deposed that the appellant was arrested from the spot itself. The width of the road where the accident took place has also been stated by the witnesses to be of 10 to 12 feet or so and have also stated about the area being no entry zone. The witnesses have held their ground in the cross examination and have come out unruffled and unscathed from the onslaught of cross examination, leaving no scope for the appellant to manoeuvre or wriggle out of the allegations and the evidence against him. The judgments relied upon by the appellant are not attracted to the facts of the case as in Vinod Kumar's case (supra) there was only one eye witness whereas in the instant case at least three eye witnesses are there who corroborate and supplement each others testimony on vital aspects. Similarly, Sarjeet Singh's case (supra) has also no bearing on the facts of the instant case having cogent evident against the accused/appellant and non examination of the Investigating Officer has been due to the death of the Investigating Officer and in any case no suggestion has been Crl. Appeal No. 306/18 Amit @ Amit Kumar Vs. The State Page No. 6 of 10 given to any of the witnesses aqua the site plan, which has been primarily questioned qua the nonexamination of the Investigating Officer.
9. The evidence on record clearly suggests that a human life was lost which is evident from the testimony of father of the victim examined as PW01 and the MLC and the postmortem report Ex.C3. Therefore the finding of the Ld. Trial Court cannot be faulted in this context.
10. The allegations under Motor Vehicle Act i.e. offences under section 66/192A and 115/194 of Motor Vehicle Act have also been brought home by the prosecution as on the date of accident, no valid permit was there with the vehicle as can be seen from the statement of PW12 and the documents Ex.PW12/A, B and C which are to the effect that the vehicle bearing No. UP13D5376 was not having a valid permit to ply in Delhi between 07.01.2006 to 14.02.2006. The accident took place on 13.02.2006 and that seals the fate of the appellant in this context and so far as the no entry zone is concerned, testimony of PW13 and the Gazette notification Ex.PW13/A leaves the appellant without any counter argument to offer. The contention of the Counsel for the appellant that the owner of the vehicle has paid the fine, therefore offence is not sustainable in view of the fact that the relevant provisions of the Motor Vehicle Act/law holds both the owner and driver responsible, therefore both of them can be separately tried and punished. As such, the plea of double jeopardy is not available to the appellant.
11. As regards the appellant being without a valid driving licence, Ld. Trial Court has recorded a finding against him 'driving without a valid licence'. Driving licence which has been albeit seized which reflects that the appellant was authorized to drive motorcycle Crl. Appeal No. 306/18 Amit @ Amit Kumar Vs. The State Page No. 7 of 10 and car and not a commercial vehicle that of light LMV or HMV specifications, therefore his licence being not valid for the purpose of driving a commercial tanker and as such the findings recorded by the Ld. Trial Court in this context are also in consonance with the record.
12. Additional and alternative plea on behalf of the appellant qua sentence has been put forth by stating that the appellant is the only bread earner of his family, has not been involved in any violation or offence, he is a young person who has faced a criminal trial for 12 years, therefore he deserves to be dealt with a soft hand and the punishment is, thus, sought to be reduced.
13. No mitigating circumstance is there, asserted by the Ld. Additional Public Prosecutor for State as the conduct/driving of the appellant was in brazen defiance of almost all applicable laws in the circumstances. He entered in a 'No Entry Zone', had no permit and instead of being careful, his driving took away life of a nine year old boy. As such, it is submitted that the punishment is in consonance with the facts and circumstances.
14. In view of the entire gamut of facts and circumstances, the appellant fails to carve out a case in his favour to consider him for any reduced punishment. The benefit of probation has been denied to the appellant and rightly so as the circumstances do not warrant so, apart from being specifically made unavailable in cases under section 304A IPC by the Hon'ble Supreme Court. Reference in this context 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 Crl. Appeal No. 306/18 Amit @ Amit Kumar Vs. The State Page No. 8 of 10 families, criminal courts cannot treat the nature of the offence under section 304A 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 under Section 304A 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 Crl. Appeal No. 306/18 Amit @ Amit Kumar Vs. The State Page No. 9 of 10 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 304A as it would amount to ignoring of law laid down by the Apex Court in Dalbir Singh v. State of Haryana.
15. Thus, it was evident that the benefit of probation is not available to the appellant and has been rightly denied. As such, the order on sentence is also upheld.
16. As a result, the appeal fails, having no ground to be interfered with. As such, the criminal appeal stands dismissed.
17. With these observations and directions, the criminal appeal stands dismissed. Copy of the judgment be given to the appellant free of cost. He be taken into custody and sent to judicial custody to serve the sentence. Benefit of set of under section 428 Cr.P.C. shall be available to the appellant.
18. A copy of this judgment alongwith Trial Court record be sent back.
19. Appeal file be consigned to record room.
Digitally signed by VIMAL VIMAL KUMAR KUMAR YADAV
Announced in the open court YADAV Date: 2018.11.15 17:04:35
+0530
today, i.e. 13.11.2018 (Vimal Kumar Yadav)
Special Judge (PC Act), CBI08
Central District, THC, Delhi
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