Delhi District Court
State vs . Mahesh Kumar on 26 October, 2013
IN THE COURT OF SH. MUKESH KUMAR, LD. ACMM :SOUTH DISTT.:
DISTRICT COURT SAKET: NEW DELHI
State Vs. Mahesh Kumar
PS Saket
FIR No. 220/10
U/s 279/304A IPC
JUDGMENT
a) Serial number / ID of the case : R0290232010
b) Date of commission of offence : 08.08.2010
c) Name of the complainant, if any : Sh. Riyaz
S/o Md. Ejaz
R/o H.No. S72A16, IG Camp,
Saidullajab, MB Road, New
Delhi.
d) Name & address of accused : Mahesh Kumar
S/o Sh. Bharat Lal
R/o H.No. Village Ghodipatti,
PS Hodal, District Palwal,
Haryana.
e) The offence complained off : U/s 279/304A IPC
f) The plea of accused : Not pleaded guilty.
g) Final order : Convicted
FIR No. 220/10 U/s 279/304-A IPC PS Saket 1/14 State Vs. Mahesh Kumar
h) The date on which order was reserved: Not reserved.
h) The date of such order : 26.10.2013
BRIEF STATEMENT OF REASONS FOR THE DECISION:
1. By this judgment I shall dispose of case of the prosecution based on FIR No. 220/10 PS Saket.
2. The allegations against the accused as per the story of prosecution are that on 08.08.2010, at 8:30 AM, at MB Road, Village, Saidullajab, in front of Tyre Shop within the Jurisdiction of PS Saket, accused was driving the vehicle bearing no. DL1PC0548 in a manner so rash and negligently so as to endanger human life and personal safety of others and thereby committed an offence punishable U/s 279 IPC and within the cognizance of this court.
Secondly, on the aforesaid date, time and place, while driving the aforesaid vehicle in the aforesaid manner, accused struck against one motorcycle bearing no. DL 6SAC 2724 and caused death, not amount to culpable homicide of Satish and thereby committed an offence punishable U/s 304A IPC within the cognizance of this court.
3. After investigation, chargesheet was filed. Accusation of allegations U/s 279/304A IPC were explained to the accused. Accused pleaded not guilty and claimed trial.
4. To prove their case, prosecution examined PW1 who deposed on oath FIR No. 220/10 U/s 279/304-A IPC PS Saket 2/14 State Vs. Mahesh Kumar that on 08.08.2010, he was present at his shop at MB Road and at about 8:30 AM, he saw that one motorcycle bearing no. DL 6SAC 2724 which was coming from Khanpur side and one DTC bus bearing no. DL 1PC 0548 which was also coming from the Khanpur side in a rash and negligent manner at a very fast speed and hit the said motorcycle by its left side due to which the said motorcyclist fell down alongwith motorcycle and sustained injuries. After seeing the accident, he alongwith some public persons reached at the spot and lifted the injured who was lying on the road. Thereafter, the said bus was forced to stop and even some public persons broke the glasses of the bus. Thereafter, police came to the spot and recorded his statement which is Ex. PW 1/A bears his signature at point A. He didn't identified the accused before the court as he was busy in lifting the accused.
Thereafter, he was crossexamined by the Ld. APP for the State at length on the point of arrest and the identity of the accused.
5. PW2 Ct. Shyam Babu who deposed that on 08.08.2010, he was posted as constable at PS saket and on that day, he was on emergency duty. He alongwith SI Ombir reached at MB Road, Maidan Garhi Modh on receipt of DD no. 3A and 4A where one motorcycle bearing no. DL6SAC2724 was found in accidental condition. Blood was also scattered on the road and one bus bearing no. DL1PC0548 was also found parked at some distance. On inquiry FIR No. 220/10 U/s 279/304-A IPC PS Saket 3/14 State Vs. Mahesh Kumar they, came to know that the injured / rider of the motorcycle has already been taken to hospital. IO recorded the statement of one Riyaz / eye witness and went to AIIMS Trauma Center and thereafter came back at the spot alongwith MLC and disclosed that the rider of the motorcycle has been expired. Rukka was prepared and handed over to him for registration of FIR on which he got the case registered and returned back at the spot with original rukka and copy of FIR and handed over the same to the IO. Accused was arrested vide arrest memo Ex.PW2/A and his personal search was conducted vide memo Ex.PW2/B, both bears his signature at point X. The said motorcycle and DTC bus were taken into possession vide memo Ex.PW2/C and PW2/D, bears his signature at point X. The DL of the accused was seized vide memo Ex.PW2/E bears his signature at point X. Thereafter, they went to PS. Case property was deposited in Malkhana. He alongwith IO SI Ombir Singh went to AIIMS Trauma Center, where the dead body of deceased Satish was got identified by his relatives and Identification statements were recorded. The dead body was handed over to the relatives after postmortem. Thereafter, he went to PS. Accused was released on bail. IO recorded his statement. He identify the accused before the court.
6. PW3 Sh. Ramesh Kumar who deposed that on 08.08.2010, he was working as conductor in DTC Green Low Floor bus bearing no. DL1PC0548 FIR No. 220/10 U/s 279/304-A IPC PS Saket 4/14 State Vs. Mahesh Kumar and the accused Mahesh Kumar who was present in the court on that day, was driving the said bus which is used to ran between Badarpur to Gurgaon. On that day at about 8.30 AM, when they reached near IGNOU Mod, Saket, one motorcycle has been slipped and struck against the said bus. The public persons started pelting stones on the bus due to which the glasses of the bus were broken. Somebody called the police. He further deposed that he do not know whether the rider of the motorcycle was expired or not. The driver of the bus was apprehended by the police and the said bus and motorcycle were also taken by the police. Thereafter, he has been cross examined by the Ld. APP for the State at length regarding how the accident took place.
7. PW4 Sh. Jagdish Singh who conducted the mechanical inspection of DTC bus bearing no. DL 1PC 0548 and proved his report i.e. Ex. PW 4/A.
8. PW5 Retd SI Ombir Singh who deposed that on 08.08.2010, he was posted at PS Saket and on that day on receiving DD no. 3A and 4A regarding accident, a true copy of the same are Ex.PW4/A and PW4/B respectively. He alongwith Ct. Shyam Babu reached at the spot i.e. MB Road, Saidullajab Village, infront of Tyre Puncture shop where one motorcycle bearing no. DL6SAC2724 and one DTC bus bearing no. DL1PC0548 were found in accidental condition. On inquiry, they came to know that the injured is taken to the Trauma Center, AIIMS by PCR Van. At the spot, one eye witness namely FIR No. 220/10 U/s 279/304-A IPC PS Saket 5/14 State Vs. Mahesh Kumar Riyaz was found present who got his statement recorded. The accused / driver of the offending vehicle and DTC bus was also found present and after handing over them from the custody of Ct. Shyam Babu. He went to the Trauma Center AIIMS and collected the MLC of one Satish on which the doctor has declared him as brought dead. After getting the dead body preserved, he returned to the spot and prepared the rukka and sent Ct. Shyam Babu to the PS for the registration of FIR. At the spot, he prepared the site plan at the instance of the complainant being Ex.PW4/C. After sometime Ct. Shyam Babu came to the spot and handed over the original rukka and copy of the FIR to him and he thereafter arrested the accused vide arrest memo Ex.PW2/A and conducted his personal search vide memo Ex.PW2/B. He had also seized both the vehicles vide seizure memo Ex.PW2/D and Ex.PW2/C. The DL of the accused was also seized vide memo Ex.PW2/E. The photocopy of the RC was also taken into possession. The mechanical inspection of both the vehicle were got done through the DTC Foreman Sh. Jagdish Singh and T.U. Siddique and reports were placed on record. The postmortem of the dead body was got conducted and after the identification the dead body, same was handed over to the relatives. He recorded the statement of witnesses and also collected the documentary evidence regarding the employment of the accused with the DTC and duty roaster and placed on record. After the completion of investigation the FIR No. 220/10 U/s 279/304-A IPC PS Saket 6/14 State Vs. Mahesh Kumar challan was filed in the court. He also correctly identified the accused before the court.
9. PW06 HC Virender Kumar who deposed that on 08.08.2010, he was posted in PCR, South Zone and at about 8.38 AM, when he was present at his PCR base i.e. outside Shereton Hotel, Saket, he received an information from the control room that an accident had taken place at MB Road, Saket, Maidan Garhi Mor. After receiving the information, he alongwith driver and gunman reached the spot where one person was found in injured condition. At the spot one motorcycle bearing no. DL6SAC2724 and one DTC Bus bearing no. DL1PC0548 were also found in accidental condition. The window glass of the DTC bus was found broken by the public persons. They thereafter immediately rushed to said injured person to Trauma center, AIIMS and got him admitted there. In the meantime, the relatives of the injured also arrived at the spot.
10. PW07 Sh. T.U. Siddiqui who conducted the mechanical inspection of motorcycle bearing no. DL 6SAC 2724 and proved his report i.e. Ex. PW 7/A.
11. The accused has not disputed the genuineness of FIR, MLC, PM Report and handing over dead body of deceased to the relatives and his statement was recorded on 29.07.2011 to this effect U/s 294 Cr.PC.
12. After the closure of PE, accused was examined U/s 313 Cr.PC in which no DE was lead by the accused and he examined himself as DW01. FIR No. 220/10 U/s 279/304-A IPC PS Saket 7/14 State Vs. Mahesh Kumar
13. Final arguments heard at length.
I have gone through the documents on record, evidence and submissions forwarded by counsel for the accused and Ld. APP for the State.
14. First witness examined by the prosecution is PW01 Sh. Riyaz who has been cited as eye witness to the incident who deposed that bus driver was driving the vehicle in rash and negligent manner and hit the motorcycle from left side as a result of which motorcyclist sustained injuries and finally he died in the hospital and doctors declared him as brought dead.
Although, the eye witness has not identified the accused but since the offending vehicle is a DTC bus where the drivers have to be deputed with their name and addresses. Moreover, he has been duly crossexamined at length by the Ld. APP for the State but the fact that on the day of incident, accused was driving the bus and it has been established on record by PW03 who was the conductor in the offending vehicle on the day of incident and correctly identified the accused. PW02 Ct. Shyam Babu who immediately reached to the spot alongwith SI Ombir Singh where the motorcycle and DTC Bus were found in accidental condition where he came to know that injured is already removed to hospital. Statement of the eye witness was also recorded there by the IO and the accused has been arrested by the IO. Therefore, I am of the considered opinion that there is no dispute regarding the identity of the accused as well as FIR No. 220/10 U/s 279/304-A IPC PS Saket 8/14 State Vs. Mahesh Kumar offending vehicle but the only question for determination before this court whether the driver was driving the vehicle in rash and negligent manner or not. PW01 has deposed in his evidence that bus driver was driving the vehicle in rash and negligent manner and hit the motorcycle from left side. Except the minor contradictions regarding investigation by the IO, nothing favorable has come on record in support of the accused.
15. Ld. counsel for the accused has submitted that the accident had took place due to rash and negligent driving of the motorcyclist who was coming from Maidangarhi in a fast speed and when he reached on the main road, he took a sudden turn and could not control his motorcycle and fell down on the road and as he was not wearing the helmat at the relevant time, therefore, he himself was negligent and death of the deceased has occurred due to head injury.
In support of his arguments he has referred judgment passed by the Honble High Court titled as Vinod Kumar Vs. State 2011 AD (Delhi) 385 and Hira Lal Vs. The State of NCT of Delhi 2012 IV AD ( Delhi ) 682. The judgments cited by the accused are not applicable to the present case as it is clear from the Postmortem report that deceased has sustained multiple injuries on his vital parts of body. It is not as simple as submitted by the Ld. Defence Counsel that motorcyclist fell down himself and sustained injuries and he could FIR No. 220/10 U/s 279/304-A IPC PS Saket 9/14 State Vs. Mahesh Kumar not control his motorcycle due to fast speed but the injury as mentioned in the Postmortem report clearly indicates that a person who losses his control on the motorcycle and fell down on the road without striking against any vehicle, cannot received such serious injuries untill unless he has been hit by some other vehicle. Even if, there is no such documents or evidence on record that deceased was wearing the Helmet at the relevant time. Even, if it is assumed for the shake of arguments that the deceased was not wearing the Helmet at the relevant time as per Postmortem report, there was no head injury shown in the Postmortem report of the deceased. While, multiple injuries has been shown in the abdomen and chest area and multiple abrasion has been observed by the doctors and cause of death has been given as blunt force impact which could be seen in the case of road traffic accident.
The Postmortem report itself clearly indicates that the accident had happened due to forceful impact to the motorcycle which was allegedly fell down on the road.
16. Testimony of an eye witness has its own efficacy and relevancy. He has no reasons to omit real culprit and implicate falsely the accused person. It's a well settled law that once the eye version is given particularly by the eye witness himself, the Court would normally rely upon such version of the prosecution unless it suffers from serious infirmities or improvements. Reliance FIR No. 220/10 U/s 279/304-A IPC PS Saket 10/14 State Vs. Mahesh Kumar is placed on the judgment titled as (State of Gujarat v. Bharwad Jakshibhai Nagribhai, (Gujarat) (DB) 1990 Cri.L.J. 2531, Balbir Singh v. State of Punjab, (P&H) 2003 Cri.L.J. 3148) and Appabhai v. State of Gujarat, AIR 1988 SC 696.
17. In the present case, I find no reasons why PW01 Sh. Riyaz, eye witness and the conductor of the offending bus would falsely implicate the accused. This witness during his deposition narrated the circumstances in which the accident occurred as well as established the identity of the accused as the driver of the offending vehicle.
18. 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. The Evidence Act does not lay down about any number of witnesses needed for proving a particular fact.(Ambika Prasad and Ano. Vs State 2002 (2) CRIMES 63 (SC) ,Chittar Lal v. State of Rajasthan, (SC) 2003 Cri.L.J. 3548, Mohamad Gugal Esa Mamasan Ger Alalah v. The King, AIR 1946 PC 3, Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 , Guli Chand and others v. State of Rajasthan, AIR 1974 SC 276, Vahula Bhushan @ Vehuna Krishnan v. State of Tamil Nadu, AIR 1989 SC 236, FIR No. 220/10 U/s 279/304-A IPC PS Saket 11/14 State Vs. Mahesh Kumar Jagdish Prasad and others v. State of M.P., AIR 1994 SC 1251, and Kartik Malhar v. State of Bihar, 1996(1) RCR(Crl.) 308 (SC) : 1996(1) SCC 614, Namdeo v. State of Maharashtra, (SC) 2007(2) R.C.R.(Criminal) 893 and Shivaji Sahebrao Bobade v. State of Maharashtra, (1973)2 SCC 793.
19. Hence, the accident as well as the fact that the accused was driver of the bus involved in the accident stands duly established.
20. Regarding the rash and negligent driving it is to be seen that 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. Thus, the main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed of the offending vehicle but deliberate disregard to the obligation of its driver to drive with due care and FIR No. 220/10 U/s 279/304-A IPC PS Saket 12/14 State Vs. Mahesh Kumar attention and taking a risk indifferent to the harmful consequences resulting from it. Niranjan Singh v. State (Delhi Administration), (Delhi) 1997(1) R.C.R.(Criminal) 320.
21. Meaning of expression negligent act and rashness came up for discussion in the case titled as Prabhakaran v. State of Kerala, (SC) 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 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 precipitate ly.
(2) Rashness means doing an act with the consciousness of a risk that evil con sequences 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.
22. Although, the accident is proved and the identity of the offending vehicle as well as accused is proved. Since, it is established on record that accused FIR No. 220/10 U/s 279/304-A IPC PS Saket 13/14 State Vs. Mahesh Kumar was driving the offending vehicle on the day of accident and he has been duly identified by the eye witness and testimony of the eye witness is duly substantiated and corroborated with documentary evidence as well as statement given by the IO.
23. In these circumstances, I am of the considered opinion that prosecution has been able to prove its case beyond reasonable doubt that the accused is driving the vehicle in rash and negligent manner and caused death of the deceased.
Therefore, accused is Mahesh Kumar S/o Sh. Bharat Lal is convicted in the present case for the offence U/s 279/304A IPC.
Announced in the open court
today i.e. 26th October, 2013 (Mukesh Kumar)
Addl.Chief Metropolitan Magistrate
South Distt. Saket Courts Complex
New Delhi
FIR No. 220/10 U/s 279/304-A IPC PS Saket 14/14 State Vs. Mahesh Kumar
State Vs. Mahesh Kumar
PS Saket
FIR No. 220/10
U/s 279/304A IPC
26.10.2013
Present: Ld. APP for the State.
Ld. Counsel alongwith accused Mahesh Kumar on bail.
Final arguments were already heard.
Today case is listed for final judgment.
Vide separate judgment announced and dictated in the open court today, the accused Mahesh Kumar S/o Sh. Bharat Lal is convicted for the offences U/s 279/304A IPC in this case.
Be put up for arguments on the point of sentence on 30.10.2013.
Announced in the open court
today i.e. 26th October, 2013 (Mukesh Kumar)
Addl.Chief Metropolitan Magistrate
South Distt. Saket Courts Complex
New Delhi
FIR No. 220/10 U/s 279/304-A IPC PS Saket 15/14 State Vs. Mahesh Kumar
( Order on Sentence )
FIR No. 220/10
U/s 279/304A IPC
PS Saket
30.10.2013
Present: Ld. APP for the State.
Convict Mahesh Kumar in person with counsel Sh. Sudarshan Rajan.
Today case is fixed for arguments on the point of sentence. Submissions heard.
As submitted by the Ld. APP for the State that maximum punishment may be given to the accused for the offence U/s 279/304A IPC as provided under the law.
On the other hand, as submitted by the counsel for the accused that accused is having four minor kids and and old aged parents to look after. As submitted, the parents of the convict is suffering from different kind of ailments due to old age. It is further submitted that accused is not having any other source of income. It is further submitted that accused is facing trial for last more than 3 years and he never remained absent during the course of trial. It is further submitted that accused is not a previous convict. Ld. counsel for the accused prayed for lenient view. It is further submitted that victim has been duly FIR No. 220/10 U/s 279/304-A IPC PS Saket 16/14 State Vs. Mahesh Kumar compensated by the MACT Court. Heard.
In view of the submissions made by Ld. counsel for accused and taking into consideration the facts, circumstances and nature of offence as the accused is not a previous convict and also having big family to look after. Accused is always coming from Hodal, DistPalwal ( Haryana ) and faced the trial and appeared on each date.
Accordingly, convict is sentenced with fine of Rs. 1000/ for offence U/s 279 IPC, in default of payment of fine,SI for 15 days and Rs. 9,000/ with one year simple imprisonment for the offence U/s 304A IPC, in default of payment of fine, SI for three months.
Accused is also directed to deposit Rs. 75,000/ as compensation to be awarded to the injured U/s 357 Cr.PC, in default of payment of compensation, SI for three months. All the sentences for default of fine and compensation, shall run concurrently.
Fine of Rs. 10,000/ deposited vide receipt no. 370619. At this stage an application for suspension of sentence and for grant of bail has been moved by the counsel for the accused U/s 389(3) Cr.PC. Ld. counsel for the convict also prayed for grant of bail for filing of appeal before the Appellate Court. Arguments heard.
The application is strongly opposed by the Ld. APP for the State. FIR No. 220/10 U/s 279/304-A IPC PS Saket 17/14 State Vs. Mahesh Kumar As it is clearly mentioned in the section 389(3) Cr.PC U/s Sub Section (ii), that if the offence of which such person has been convicted is a bailable one, then the convict be released on bail giving him the time for filing of appeal. Here, in the present case, convict has been convicted for the offences U/s 279/304A IPC which are bailable one and the accused remained on bail throughout the trial. In these circumstances, sentence is suspended till 29.11.2013 giving the opportunity to the convict for filing of appeal. Convict is also admitted on bail on furnishing of personal bond in the sum of Rs. 20,000/ with one surety of the like amount till 29.11.2013. Bail bonds furnished and same is accepted.
As submitted by the counsel for the convict that one month time may be given for depositing the compensation amount as the convict could not arrange such a huge amount. Accordingly, one month time till 29.11.2013 is granted to the convict to deposit the compensation.
In case, if the convict fails to file the appear before the Appellate Court within the stipulated period, then he is directed to surrender himself before the court for serving of sentence.
Copy of this order and Judgment be supplied to the accused free of cost.
File be consigned to Record Room after due compliance. FIR No. 220/10 U/s 279/304-A IPC PS Saket 18/14 State Vs. Mahesh Kumar (Mukesh Kumar) ACMM/SD/Saket/30.10.2013 FIR No. 220/10 U/s 279/304-A IPC PS Saket 19/14 State Vs. Mahesh Kumar