Delhi District Court
State vs . Balkar Singh on 6 June, 2014
IN THE COURT OF Ms. CHETNA SINGH:MM-02(SOUTH DISTRICT)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Balkar Singh
FIR No. 99/07
U/s : 279/337/338 IPC
P.S. : Malviya Nagar
Date of institution of case : 11.07.2007
Date on which case reserved for judgment : 06.06.2014
Date of judgment : 06.06.2014
JUDGMENT
1.FIR No. of the case : 99/07
2.Date of the Commission : 23.01.2007
of the offence
3.Name of the accused : Balkar Singh S/o Sh. Charan Singh
: R/o Gali No. 29, Arjun Nagar, New
: Delhi.
4.Name of the complainant : Shiv Prasad Tiwari S/o Sh. B.P. Tiwari
: R/o Plot No. GH-29, Flat No. 302A,
: Joya Kunj, Sector 56, Gurgaon,
: Haryana.
5.Offence complained of : 279/337/38 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Convicted u/s 279/337/338 IPC
FIR No. 99/07 State Vs Balkar Singh Pages 1/14
BRIEF FACTS
1. The story of the prosecution is that on 23.01.2007 at about 4.10pm at in front of C-56, Shivalik, Malviya Nagar Road, Malviya Nagar, New Delhi, within the jurisdiction of PS Malviya Nagar accused Balkar Singh was found driving a vehicle i.e. Indica Car bearing registration no. DL-1YA-3294 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving the above said manner accused struck against scooter bearing no. DL-7SU-4873 and caused simple hurt to the Mohammad Hashim Sheikh and grievous hurt to complainant Shiv Parshad Tiwari and he thereby committed an offence punishable u/s 279/337/338 IPC.
2. On the basis of the said allegations and on the basis of the complaint of the complainant, an FIR bearing number 99/07 under section 279/337/338 IPC was lodged at Police Station Malviya Nagar.
3. After investigation, charge-sheet under section 173 Cr.P.C was filed on 11.07.2007.
4. On the basis of the charge-sheet, charge for the offences punishable under section 279/337/338 IPC was framed against the accused person namely Balkar Singh and read out to the said accused person, to which he pleaded not guilty and claimed trial on 04.14.2007.
Appreciation of Evidence
5. In order to prove the above said allegations against the accused Balkar Singh, prosecution has examined the following witnesses.
6. PW-1 Shiv Prasad Tiwari being complainant was examined on FIR No. 99/07 State Vs Balkar Singh Pages 2/14 25.05.2010 and deposed that on 23.01.2007 he was working as Technician with TCIL and on that day in the evening hours he was going to his house from office on his scooter bearing no. DL-7SU-4873 which was being driven by him and his colleague Mohammad Hasib Sheikh was the pillion rider. He further deposed that at about 4.10pm when they reached Shivalik, Malviya Nagar Road near C-56, Shivalik, one Tata Indica Car bearing No. DL-1YA-3294 came from his left side in a rash and negligent manner and at a high speed which was being driven by accused Balkar Singh present in the court (correctly identified by the witness) and hit their scooter and they both fell down and sustained injuries. He further deposed that he and his colleague received injury and got fractured on his left hand. He further deposed that at the time of accident accused was under influence of liquor and PCR came at the spot and removed him and his colleague to AIIMS Hospital where they were medically examined and treated. He further deposed that local police came to hospital and recorded his statement vide Ex. PW-1/A bearing his signature at point A. He further deposed that he pointed out the place of incident to the police where site plan was prepared at his instance vide Ex. PW-1/B. His scooter was also sized by police. Accused was arrested and his personal search was conducted vide memos Ex. PW-1/C and D respectively. He further deposed that he got released his scooter on superdari. He further identified two photographs of the offending car which are Ex. E-1 and E-2. Court observations : Production of the vehicle is not required in view of judgment of Hon'ble Supreme Court in case titled as "Sunderbhai Ambalal Vs State of Gujarat" AIR 2003 SC 638.
7. This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that PCR came at the spot within 10 minutes of the incident and arrested the accused and he told to the IO that the accused FIR No. 99/07 State Vs Balkar Singh Pages 3/14 was under influence of liquor. He further deposed that on 23.01.2007 he was called at the spot by the IO and site plan was prepared at his instance. He further deposed that he remained in the hospital for 2 hours. He further deposed that police recorded his statement in the hospital at about 7/7.15pm and later on recorded his statement at PS on same day and he remained in PS till 1.00am. He further deposed that the accused was not in a position to run away from the spot as he was under influence of liquor. He further deposed that he cannot tell the speed of the Indica Car and he does not remember how many documents he signed in connection with this case and he was told by police about the papers which were signed by him. He further deposed that he cannot tell whether IO recorded the statements of neighbourers or not. He denied the suggestion that the accident occurred due to his negligence and later on he prepared his statement with the help of his friend and gave it to the IO on which the above said FIR was registered. He further denied the suggestion that many other papers were signed by him after his statement or that he signed some papers on 24.01.2004 in the evening.
8. PW-2 Mohammad Hasib Sheikh being injured was examined on 25.05.2010 and deposed that on 23.01.2007 he was working as Peon with TCIL and on that day in the evening hours he was going to his house from office on his scooter bearing no. DL-7SU-4873 which was being driven by Shiv Prasad Tiwari and he was the pillion rider. He further deposed that at about 4.10pm when they reached Shivalik, Malviya Nagar Road near C-56, Shivalik, one Tata Indica Car bearing No. DL-1YA-3294 came from his left side in a rash and negligent manner and at a high speed which was being driven by accused Balkar Singh present in the court (correctly identified by the witness) and hit their scooter and they both fell down and sustained FIR No. 99/07 State Vs Balkar Singh Pages 4/14 injuries. He further deposed that he received injury on his right leg and Shiv Prasad Tiwari also sustained injury. He further deposed that at the time of accident accused was under influence of liquor and PCR came at the spot and removed him and his colleague to AIIMS Hospital where they were medically examined and treated. He further deposed that local police came to hospital and recorded the statement of complainant Shiv Prasad Tiwari. He further deposed that site plan was prepared at the instance of complainant vide Ex. PW-1/B. Scooter was also sized by police. Accused was arrested and his personal search was conducted vide memos Ex. PW-1/C and D respectively. He further identified two photographs of the offending car which are Ex. E-1 and E-2. Court observations : Production of the vehicle is not required in view of judgment of Hon'ble Supreme Court in case titled as "Sunderbhai Ambalal Vs State of Gujarat" AIR 2003 SC 638. His cross examination was deferred.
9. PW-3 Daulat Singh who is a formal witness was examined on 27.07.2013 and deposed that the accused present in the court was his driver. He further deposed that he does not know whether the accused was driving the vehicle on the day of incident. He further deposed that he got to know in PS that his vehicle had met with an accident.
10. This witness was not cross examined by the accused despite opportunity given.
11. PW-4 SI Hazari Lal being IO was examined on 01.02.2014 and deposed that on 23.01.2007 he was posted as ASI in PS Malviya Nagar and on that day he received DD no. 31-B regarding accident. He further stated that he along with Ct. Ram Ratan, again said Ct. Sheo Ram reached the spot i.e. C-56, Shivalik Road where he saw a car bearing registration no. DL-1YA (he does not remember full particulars of the car) and he also saw another FIR No. 99/07 State Vs Balkar Singh Pages 5/14 scooter which was standing there in accidental condition at the corner of the road (he does not remember the number of scooter).
12. At this stage, Ld. APP for State sought permission to refresh the memory of the witness and same was allowed. He further stated that the registration number of the car is DL-1YA-3294 of white colour and the RC number of the scooter is DL-7SU-4873. He further stated that during investigation he came to know that the injured has already been shifted to AIIMS Hospital. He further deposed that he reached AIIMS hospital while Ct. Sheo Ram stayed at the spot where he had collected MLC of Shiv Prasad Tiwari and Mohammad Asim Sheikh. He further deposed that he recorded the statement of Shiv Prasad Tiwari in AIIMS and returned back at the spot and prepared rukka and endorsed the same which is Ex. PW-4/A bearing his signature at point A. He further deposed that he got registered the present case through Ct. Sheo Ram and seized the said scooter and car vide memos Ex. PW-4/B and C both bearing his signature at point A respectively. He further deposed that the accused has not produced DL and he prepared non production memo of DL which is Ex. PW-4/D bearing his signature at point A and served notice u/s 133 of M.V. Act and received reply on it. The said document is Ex. PW-4/E bearing his signature at point A. He further deposed that owner of the vehicle namely Daulat Singh produced the copy of DL of accused which has been seized by him vide seizure memo Ex. PW-4/F bearing his signature at point A. He further deposed that he arrested the accused and conducted his personal search vide memos already Ex. PW-1/C and D respectively both bearing his signatures at point B. The site plan has already been prepared vide Ex. PW-1/B bearing his signatures at point B. He further deposed that he recorded supplementary statement of Mohammad Asif Sheikh and other witnesses and got conducted mechanical inspection of FIR No. 99/07 State Vs Balkar Singh Pages 6/14 both vehicles. The said report is Ex. PW4/G and H respectively both bearing his signatures at point A. He further identified the accused present in the court. The vehicle bearing registration no. DL-1YA-3294 has been released on superdari vide superdginama Ex. PW-4/I bearing his attestation at point A.
13. This witness was cross examined by Ld. Defence counsel for the accused wherein he stated that he reached the spot at about 4.25pm just after receiving the call at about 4.15pm. He further deposed that the accused himself stated that he was driving the offending vehicle in question. No public persons were present at the spot when he reached there. He further deposed that he stayed at the spot for about 1 and half hour. He denied the suggestion that all the proceedings were done in a single day while sitting in PS or that the accused has been falsely implicated in the present case.
14. Further, MLC bearing no. 7545/07, 7546/07 which are Ex. P-1 and P-2, X-ray report dated 23.01.2007 of MLC bearing no. 7546/07 which is Ex. P-3, FIR bearing no. 99/07 which is Ex. P-4, statement of witness Ct. Sheo Ram u/s 161 Cr.P.C. which is Ex. P-5 and mechanical inspection report of Indica Car bearing No. DL-1YA-3294 and scooter bearing no. DL-7SU-4873 which are Ex. P-6 and P-7 have not been disputed by the accused as he has admitted the said documents on 09.01.2014 in his statement u/s 294 Cr.P.C. Accordingly, same were dispensed with being admitted u/s 294 Cr.P.C.
15. As all witnesses were examined by the prosecution, PE was ordered to be closed on 01.02.2014. Statement of accused u/s 313 Cr.P.C. was recorded on 04.03.2014 in which he stated that he does not want to lead any defence evidence.
16. Final arguments were advanced by Ld. APP for the state and by Ld. Defence counsel. Heard.
FIR No. 99/07 State Vs Balkar Singh Pages 7/14
Reasons for Decision
17. In the present matter prosecution has examined four witnesses in total to prove its allegations qua accused that on the date and time as earlier mentioned, the accused Balkar Singh was driving his Indica Car bearing No. DL-1YA-3294 on the public way in a rash and negligent manner and hit against Scooter bearing no. DL-7SU-4873 and thereby causing simple injuries to Mohammad Hashim Sheikh and grievous injuries to complainant Shiv Prasad Tiwari and thereby committed offences punishable u/s 279/337/338 IPC.
18. Further, before appreciation of evidence, it is necessary to state the essential ingredients of section 279 IPC. Same are as follows:
(1)That the accident actually took place. (2)That the accident took place due to rash and negligent driving.
(3)That the accused was the person who was driving the vehicle at the relevant time.
The words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Blacks Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by H.L.A.Hart in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently.
"[A] careful consideration is needed of the difference between the meaning of the expression like 'inadvertently' FIR No. 99/07 State Vs Balkar Singh Pages 8/14 and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The word 'negligently', both in legal and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash'as doing something that may not be sensible without first thinking about the possible results.
Elaborating further, in State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression " rashness " and " negligence "
held as follows :
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowl- edge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negli- gence is the gross and culpable neglect or failure to exer- cise reasonable care and proper precaution imperative to FIR No. 99/07 State Vs Balkar Singh Pages 9/14 be adopted by a person to avoid causing of injury to the public or a person or a individual."
8. The distinction has been very aptly pointed out by Holloway, J. in these words :
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection." (See In Re : Nidamorti Nagabhusanam 7 Mad. HCR 119)".
19. Prosecution has examined the complainant Shiv Prasad Tiwari as PW-1 who deposed that on the date of incident he was going to his house from office on his scooter bearing no. DL-7SU-4873 which was being driven by him and his colleague Mohammad Hasib Sheikh was the pillion rider. He further deposed that at about 4.10pm when they reached Shivalik, Malviya Nagar Road, one Tata Indica Car bearing No. DL-1YA-3294 came from left at a high speed and in a rash and negligent manner and overtook his vehicle and in the process of overtook, hit his scooter. The accused has been correctly identified by the witness during the course of his deposition. The number of the car has correctly stated. The rash and negligence of the accused has also been elaborated by the complainant. The complainant has further deposed as regards the injuries caused to him as well as to his FIR No. 99/07 State Vs Balkar Singh Pages 10/14 colleague and also deposed as regards investigation undertaken by the IO including the preparation of site plan, arrest memo and personal search. This witness has also correctly identified photographs of the offending car Ex. E-1 and E-2.
20. During the course of cross examination also no material contradiction could be noted.
21. Apart from this witness, PW-2 Mohammad Hasib Sheikh being second injured has also been examined by the prosecution who has deposed on similar lines of PW-1 Shiv Prasad Tiwari. His cross examination was deferred and thereafter he was never cross examined. Thus, it is clear that his examination cannot be read in evidence.
22. Despite the said fact, one of the injured has been examined and cross examined as PW-1 who has clearly identified the accused, offending vehicle as well as elaborated the rashness and negligence of the accused while driving the offending vehicle which resulted into the collision of the scooter of the complainant with the offending vehicle.
23. Apart from this witness, PW-3 Daulat Singh has been examined by the prosecution who admitted that the accused present in the court was his driver.
24. PW-4 being IO SI Hazari Lal has also been examined who has also deposed as regards the investigation carried out.
25. Other documents being MLC, X-ray report, FIR, statement of witness Ct. Sheo Ram and mechanical inspection reports of both the offending vehicle as well as vehicle of the injured have been admitted by the accused in examination u/s 294 Cr.P.C. on 09.01.2014. In "Shabbir Mohammad Vs State of Rajasthan" (FB) (1996 Cr.L.J. 1015) it has been held that :
FIR No. 99/07 State Vs Balkar Singh Pages 11/14 "If the genuineness of any document produced by the prosecution or the accused is admitted by opposite party, when called upon to do so under sub-setion (3) of Section 294 of the Code, it can be read by the court as a substantive piece of evidence for deciding the issue pending before it with its probative value being the same as it would have had it had been proved by the party concerned on its genuineness having disputed by the opposite party when called upon to do so under sub-section (1) of Section 294 of the Code".
Further in "Boraiah @ Shekar Vs State" [2003(2) R.C.R. (Criminal) 160] it has been held that :
"Section 294 Cr.P.C. dispenses with proof of every document when it becomes formal on its genuineness not being disputed. Sub-section (3) of Section 294 Cr.P.C. covers postmortem reports and every other document of which genuineness is not disputed. Once the requirements of Section 294 are fulfilled, there could be no difficulty in treating such document as substantive evidence in the case. In fact after indication of no dispute as to the genuineness of a document, proof of document is reduced to a sheer empty formality.
Such a document may be read in evidence under sub-section (3) of Section 294. Neither the signature nor the correctness of its contents need be proved by the prosecution or the accused by examining its signatory as it is admitted to be true or correct. The phrase 'read in evidence' means read as substantive evidence, which is the evidence adduced to prove a fact in issue as opposed to the evidence used to discredit a witness or to corroborate his testimony".
Also in "Akhtar Vs State of Uttranchal" [SC 2009(2) AICLR745] it has been held that :
"If the accused had admitted the injury reports and FIR No. 99/07 State Vs Balkar Singh Pages 12/14 postmortem reports under Section 294 Cr.P.C. He cannot later contend that the said documents cannot be read into substantial evidence due to non- examination of doctors, and the said document shall be read as valid and substantive evidence under Section 294 Cr.P.C."
26. Further, statement of the accused was also recorded on 04.03.2014 in which he admitted that he was driving the offending vehicle bearing No. DL-1YA-3294 on the date and time of the incident. He also deposed that one scooter had hit his Indica Car from behind. He admitted that apart from the scooter driver there is one another person involved. It is clear from his statement recorded that the factum of incident having taken place while he was driving Indica Car with one scooter has been established by his admission.
27. Apart from his statement, there is other corroborating evidence on record being testimony of PW-1 and other documents being MLC substantiating the grievous injury to PW Shiv Prasad Tiwari and simple injury to PW Mohammad Hashim Sheikh. The X-ray reports further corroborate the injuries caused. The mechanical inspection reports of both the vehicles clearly reveal the manner in which the accident took place. The mechanical inspection reports of Tata Indica car Ex. PW-4/G reveals that the Rear Right Body and the Corner as well as the side portion has been scratched. It has further been noted that the Rear Right Bumper also got bend.
28. On the other hand the scooter of the injured was also mechanically inspected vide report Ex. PW-4/H in which the front Mudguard has been stated to be damaged and the left side body has also been stated to be damaged. The left side chases has been stated to be bend and scratched. Thus, it is clear that the accident took place on account of rash and negligent FIR No. 99/07 State Vs Balkar Singh Pages 13/14 driving of the accused which resulted Tata Indica Car hitting the scooter of the complainant Shiv Prasad Tiwari and thereby resulting into injuries being caused to him and to the Pillion Rider Mohammad Hashim Sheikh.
29. There is enough evidence on record to substantiate the factum of the incident and to substantiate the rashness of the accused. Thus, on the basis of the above mentioned observations this court has arrived at a conclusion that the accident took place on account of rash and negligent driving of the accused and hence, accused Balkar Singh is accordingly, convicted for offences punishable under section 279/337/338 IPC.
Be listed for arguments on sentence on 25.06.2014 at 2.00pm.
ANNOUNCED IN THE COURT (CHETNA SINGH) ON 06.06.2014 MM-02(SD)/06.06.2014
Certified that this judgment contains 14 pages and each page bears my signatures.
(CHETNA SINGH)
MM-02(SD)/06.06.2014
FIR No. 99/07 State Vs Balkar Singh Pages 14/14
STATE Vs. Balkar Singh
FIR No. 99/07
U/s : 279/337/338 IPC
P.S. : Malviya Nagar
16.07.2014
File taken up on an application for withdrawal of surety filed by surety Daulat Singh.
ORDER ON SENTENCE
Present: Ld. APP for the state.
Convict Balkar Singh is present with Ld. counsel.
Surety Daulat Ram is also present.
As per order dated 04.07.2014 NBW's were issued through SHO against the convict as he failed to appear for arguments on sentence which were to be advanced.
Today surety has appeared and submits that he has no control over the convict and therefore, he wishes to withdraw his surety bond. Convict has been asked whether he has engaged any counsel. He submits that he has not engaged any counsel. LAC for the convict has been intimated.
Further as the matter is listed for arguments on sentence, arguments on sentence has been advanced by Ld. substitute APP for State who has argued for maximum punishment to be given to the convict as he has been convicted in offences u/s 279/337/338 IPC. Ld. substitute APP has further argued for harsher punishment as convict has absented himself at the stage of arguments on sentence.
Convict on the other hand prays for a lenient view to be taken against him. He further submits that he is an old man and he is a sole bread earner of his FIR No. 99/07 State Vs Balkar Singh Pages 15/14 family and even he is not in a position to engage any counsel.
LAC has been intimated. However, he has failed to appear despite matter being kept awaited till 2.00pm.
Submissions made by convict taken into consideration. Case file perused.
Considering the facts and circumstances, the convict is sentenced to SI for one month for offence U/s 279 IPC without any fine, SI for one month for offence U/s 337 IPC without any fine and SI for two months for offence U/s 338 IPC without any fine. All sentences shall run concurrently. A benefit of section 428 Cr.P.C. be given to the convict.
Further, no application U/s 389 Cr. PC for suspension of sentence has been filed. Convict be remanded to judicial custody. S urety Daulat Ram is discharged. Endorsement if any be cancelled. Original documents if any be returned to the surety.
Copy of this order be annexed along with custody warrant of the convict.
Copy of judgment and order on sentence be given to convict free of cost.
File be consigned to record room after necessary compliance.
(CHETNA SINGH)
MM02:SD/Saket Courts
16.07.2014
FIR No. 99/07 State Vs Balkar Singh Pages 16/14