Delhi District Court
Sh. Rakesh Kumar vs The State (Govt. Of Nct Of Delhi) on 4 April, 2018
: 1 :
IN THE COURT OF SH. DEVENDER KUMAR JANGALA ,
ASJ03, WEST DISTRICT, DELHI
Criminal appeal no. 2/2/16
U.I.D. N0. 54442/16
P.S. Nangloi
In the matter of:
Sh. Rakesh Kumar
S/o Sh. Radhey Shyam
R/o H. No. WZ64,
Village Madipur, Delhi.
.......Appellant
versus
The State (Govt. of NCT of Delhi)
.......Respondent
Date of filing: 26.07.2014
Date of arguments: 23.03.2018
Date of judgment: 04.04.2018
JUDGMENT
1. This is a criminal appeal filed under Section 374 of Code of Criminal Procedure (hereinafter referred to as the Cr.PC) SC No. 54442/16 Rakesh Kumar Vs. State page 1 of 15 : 2 : against the judgment dated 15.02.2014 and order on sentence dated 17.05.2014 passed by the court of Sh. Harvinder Singh, the then Ld. Metropolitan Magistrate, West, Tis Hazari Courts, Delhi in case FIR No. 28/1998, under Section 279/338/304A IPC of Police Station Nangloi.
2. BRIEF FACTS A case FIR bearing number 28/1998 was registered in Police Station Nangloi for commission of offence punishable under Section 279/338/304A IPC on the statement of Sh. Sajjan Singh. It is alleged that on 07.01.1998 at about 5.30 PM, at main Rohtak Road, near Lokesh Cinema, Nangloi, Delhi, the accused Rakesh Kumar was found driving Tanker No. UGE260 in rash and negligent manner so as to endanger human life and personal safety of others. It is also alleged that the accused while driving the Tanker in rash and negligent manner hit against one pedestrian Sh. Sajjan Singh and caused grievous injuries upon him. It is further stated that while SC No. 54442/16 Rakesh Kumar Vs. State page 2 of 15 : 3 : driving the said vehicle in rash and negligent manner, the accused struck against cyclist Prem Singh and caused his death.
3. The chargesheet for commission of the offence under Section 279/338/304A IPC was filed. The notice under Section 251 Cr.PC for commission of the alleged offence was also served upon the accused on 01.02.2001.
4. The prosecution to prove its case has examined 12 witnesses, i.e., PW1 Sh. Sajjan Singh, PW2 Sh. J S Panwar, PW3 Sh. P K Madaan, PW4 HC Om Prakash, PW5 Ct. Pawan Kumar, PW6 Ct. Suresh Kumar, PW7 Sh. Satbir, PW8 Dr. Deepak Kumar Upadhyay, PW9 Sh. Ravinder, PW10 retired SI Pratap Singh, PW11Anil Kumar (Superdar) and PW11 Dr. Amitabh Bhasin and PW12 Dr. Komal Singh. The statement of accused under Section 313 Cr.PC was recorded.
5. The Ld. Trial Court after conclusion of the trial convicted the SC No. 54442/16 Rakesh Kumar Vs. State page 3 of 15 : 4 : appellant/accused for commission of the offence under Section 279/338/304A IPC. The appellant/convict was sentenced as under: "(a) The convict Rakesh Kumar is sentenced to simple imprisonment for period of three months for offence punishable under Section 279 IPC.
(b) The convict Rakesh Kumar is sentenced to simple imprisonment for period of six months for offence punishable under Section 338 IPC.
(c) The convict Rakesh Kumar is sentenced to simple imprisonment for period of one year for offence punishable under Section 304A IPC.
(d) The convict is directed to further pay compensation of Rs. 45,000/ to the LRs of the deceased Prem Singh and Rs. 5,000/ to the injured Sajjan Singh to be deposited in the Court and payable as and when he appears before the Court to receive the same".
6. The appellant/convict being aggrieved by the judgment of conviction dated 15.02.2014 and order of the sentence dated 17.05.2014 has filed the present appeal. It is contended that the impugned judgment and order on the sentence are bad in law, arbitrary, contrary and against the principle of natural justice. The Ld. Trial Court has failed to consider the statement of the prosecution witnesses. That no independent public person was summoned or cited as eye witness. That the prosecution has failed to prove its case SC No. 54442/16 Rakesh Kumar Vs. State page 4 of 15 : 5 : beyond reasonable doubt. That there is no incriminating evidence against the appellant/convict in the present case. It is prayed that in view of the grounds of appeal, the judgment of conviction dated 15.02.2014 and order of the sentence dated 17.05.2014 may kindly be set aside.
7. The notice of the appeal was issued to the State which is accepted by the Ld. Addl. PP for the State. The appeal is strongly opposed by Ld. Addl. PP for the State.
8. I have carefully perused the material on record and have gone through the submissions made by Sh. Ajay Kumar Chauhan, Ld. Counsel for the appellant/convict and Sh. Pravesh Ranga, Ld. Addl. PP for the State.
9. It is submitted by Ld. Counsel for the appellant/convict that there are material contradictions in the testimony of the witnesses, and no independent public witness was joined in the investigation. It is prayed that in view of the same, appellant/convict may kindly be SC No. 54442/16 Rakesh Kumar Vs. State page 5 of 15 : 6 : acquitted.
10. On the other hand, Ld. Addl. PP for the State has submitted that there is no illegality or infirmity in the judgment of conviction and order of the sentence passed by the Ld. Trial Court. It is prayed that appeal may kindly be dismissed.
11. In the present case, the prosecution has examined total 12 witnesses. However, the testimony of PW1 Sh. Sajjan Singh / injured is material to prove the case. PW1 Sh. Sajjan Singh is the complainant/victim/eye witness of the incident. PW1 Sh. Sajjan Singh had also sustained injury in the alleged incident. PW1 Sh. Sajjan Singh in his deposition gave a detailed account of the incident taken place. PW1 Sh. Sajjan Singh has deposed that one tanker bearing registration No. UGE260 came from back side and hit him from back side, as a result of which he fell down alongwith scooter and sustained injuries. PW1 Sh. Sajjan Singh has deposed that front wheel of the offending vehicle passed over the right leg as well as on the scooter. PW1 Sh. Sajjan Singh has specifically stated that due to SC No. 54442/16 Rakesh Kumar Vs. State page 6 of 15 : 7 : rash and negligent driving of the driver of the tanker, said incident had taken place. PW1 Sh. Sajjan Singh also identify the accused as driver of the offending vehicle.
12. The prosecution has to prove the following facts to bring home the charge for commission of the offence under Section 279 IPC.
(a) That the accused was driving the vehicle.
(b)Secondly, that the accused was driving the vehicle in rash and negligent manner so as to endanger human life and personal safely of the others.
13. The above two ingredients / facts to prove the charge for commission of offence under Section 279 IPC has been proved by the prosecution by the deposition of PW1 Sh. Sajjan Singh. PW1 Sh. Sajjan Singh in his evidence has deposed that the accused was driving the offending vehicle at the time of accident. The accused in his statement under Section 313 Cr.PC has also not disputed the fact that he was driving the vehicle bearing No. UGE260 at the time of incident. Even though, some defence has been raised by the accused SC No. 54442/16 Rakesh Kumar Vs. State page 7 of 15 : 8 : in his statement.
14. The PW1 Sh. Sajjan Singh in his deposition has categorically deposed the rash and negligent driving of the appellant/convict. The accused has failed to cross examine the witnesses despite opportunity during the trial. Even during the appeal no application was filed to seek permission to recall these witnesses to cross examine.
15. The rash and negligent driving of the appellant/convict is also reflected from the fact that the appellant/convict has hit his vehicle on the back side of the scooter of the PW1 Sh. Sajjan Singh. The mechanical inspection report Ex. PW2/A is also corroborating the testimony of PW1 regarding the rash and negligent driving and the accident caused by the accused.
16. It is not out of place to mention that the testimony of PW1 Sh. Sajjan Singh is also corroborated with the MLC Ex.PW8/B wherein his injuries were recorded by the examining doctor. There is no other reason to disbelieve the testimony of PW1 Sh. Sajjan Singh.
17. In view of the unrebutted testimony of PW1 Sh. Sajjan Singh, SC No. 54442/16 Rakesh Kumar Vs. State page 8 of 15 : 9 : I am of the considered opinion that the Ld. Trial Court has rightly come to the conclusion that the prosecution is able to prove the commission of the offence under Section 279 and 338 IPC by the appellant/convict. The prosecution has able to prove beyond reasonable doubt that the accused was driving the offending vehicle bearing registration number UGE260 in rash and negligent manner so as to endanger human life and personal safety of the others and while driving in such a manner, he caused the accident and inflicted injuries upon the person of PW1 Sh. Sajjan Singh.
18. The Ld. Trial Court was also pleased to convict the appellant/accused for commission of offence under Section 304A IPC. The appellant/convict was charged for commission of the offence under Section304A IPC on the allegation that he struck against a cyclist Prem Singh and caused his death not amounting to culpable homicide.
19. The testimony of PW1 Sh. Sajjan Singh to prove the allegation under Section 304A IPC is material. There is no eye witness to prove SC No. 54442/16 Rakesh Kumar Vs. State page 9 of 15 : 10 : the allegation of Section 304A IPC. The Ld. Trial Court with regard to commission of the offence under Section 304A IPC has observed as under: "Though, the PW1 has not deposed in his evidence that deceased Prem Singh was also struck by the tanker in question by the accused, but, the same could be inferred from the circumstance and the documents Ex. PW3/A to Ex. PW3/3 that he was also struck by the accused with his tanker and died due to the same. The accused had run over his vehicle upon Pw1 and deceased Prem Singh from backside".
20. It is well settled law that in a criminal jurisprudence, the prosecution is bound to prove its case beyond reasonable doubt. The onus to prove the charge is upon the prosecution and it never shifts. The prosecution cannot take benefit out of the weakness of the defence of the accused.
21. It is also not out of place to mention that the court could not convict a person for commission of the offence on the basis of assumptions. Before proceedings further, it is necessary to reproduce SC No. 54442/16 Rakesh Kumar Vs. State page 10 of 15 : 11 : the relevant part of examination in chief of PW1 Sh. Sajjan Singh.
"On 7.1.98 I was going from my house to Market ton two wheelar scooter No. DL4SQ3096 for bringing essential goods, and when I reached ahead of Lokesh Cinema one tanker No. UGE260 came from back side and hit me from back side as a result of which I fell down alongwith scooter on the road and sustained injuries and left side front wheel of tanker on my right leg as well as on my scooter. Public persons gathered at the spot. I also found one cycle and one another person in injured condition thereafter. Police arrived at the spot and removed me to DDU Hospital. This accident took place due to rash and negligent driver of the tanker driver who is present in the Court today as accused."
22. The perusal of the testimony of PW1 Sh. Sajjan Singh has revealed that he nowhere alleged that the accused had caused the accident of cyclist. PW1 Sh. Sajjan Singh had nowhere deposed that the accused struck the offending vehicle against the cyclist and caused his death. The PW1 Sh. Sajjan Singh has merely deposed that he found one cyclist in injured condition thereafter. This deposition of PW1 nowhere incriminates the appellant/convict for commission of the offence under Section 304A IPC. The prosecution could not be absolved from its mandatory duty to prove the necessary ingredient of SC No. 54442/16 Rakesh Kumar Vs. State page 11 of 15 : 12 : the alleged offence, on the basis of assumptions.
23. The Ld. Trial court had also relied upon the photographs Ex. PW3/1 to Ex. PW3/3. However, these photographs also does not connect the accused with commission of the alleged offence. In the photographs Ex.PW3/1 to Ex.PW3/3, a cycle is seen standing with the wall. These photographs also does not show that the accused has struck against the cyclist. There is no other witness/evidence who could prove the commission of the offence under Section 304A IPC against the appellant/convict.
24. In view of the above discussions, it is clear that Ld. Trial Court has wrongly convicted the appellant/accused for commission of the offence under Section 304A IPC. The evidence produced on record by the prosecution was not sufficient to prove the allegation for commission of the offence under Section 304A IPC.
25. In view of the above discussions, the conviction of the appellant/convict for commission of the offence under Section 279 and 338 IPC is upheld. However, the conviction of the SC No. 54442/16 Rakesh Kumar Vs. State page 12 of 15 : 13 : appellant/convict for commission of the offence under Section 304A IPC is set aside. The appellant/convict is acquitted from the charge of offence under Section 304A IPC.
26. The Ld. counsel for the appellant/convict has contended that the appellant/convict is the sole bread earner in his family and belongs to a very poor family. It is submitted that the appellant/convict has been directed to pay the compensation amount of Rs. 45,000/ to the LRs of the deceased and Rs. 5,000/ to the injured Sajjan Singh. It is submitted that the appellant/convict is facing the trauma of trial since year 1999 and there is no record of commission of the repeat offence. Therefore, a lenient view may kindly be taken.
27. On the other hand, it is submitted by Ld. Addl. PP for the State / respondent that no leniency is required to be given to the appellant/convict. Therefore, strict view may kindly be taken.
28. There is no previous conviction record against the appellant/convict. The appellant/convict belongs to a poor family. The SC No. 54442/16 Rakesh Kumar Vs. State page 13 of 15 : 14 : applicant/convict's whole family depends upon the earning of the appellant/convict. The appellant/convict is facing the trauma of trial since year 1999. Therefore, considering all the facts and circumstances, I am inclined to take a lenient view regarding the sentence.
29. In view of the above discussions, the appeal filed by the appellant/convict against the judgment of conviction dated 15.02.2014 and order on sentence dated 17.05.2014 for commission of offence punishable under Section 279 and 338 IPC is upheld. The appellant/convict is acquitted for commission of the offence punishable under Section 304A IPC. Accordingly, the appeal is partly allowed.
30. In view of the above discussions, the order of the sentence dated 17.05.2014 is modified as under: a. The convict Rakesh Kumar is sentenced to simple imprisonment for period of one month for offence punishable under Section 279 IPC.
b. The convict Rakesh Kumar is sentenced to simple imprisonment for period of three months for offence SC No. 54442/16 Rakesh Kumar Vs. State page 14 of 15 : 15 : punishable under Section 338 IPC.
c. Both the sentence shall run concurrently. d. Compensation of Rs. 5,000/ to the injured Sh. Sajjan Singh to be deposited in court. Compensation of Rs. 5000/ already deposited.
e. Benefit of Section 428 Cr.PC be given if applicable.
31. Appellant/convict be taken into custody to serve the sentence.
32. The Trial court record be sent back alongwith attested copy of this judgment.
33. Copy of judgment be given to the appellant/convict free of cost.
34. Appeal file be consigned to Record Room after completion of necessary formalities.
Announced in the open court today i.e. 04.04.2018 (DEVENDER KUMAR JANGALA) ADDL. SESSIONS JUDGE03 (WEST), DELHI This judgment contains 15 pages and all pages bears my signatures.
(DEVENDER KUMAR JANGALA) ADDL. SESSIONS JUDGE03 (WEST), DELHI SC No. 54442/16 Rakesh Kumar Vs. State page 15 of 15