Delhi District Court
Sarfuddin S/O Sh. Sabasi vs The State on 17 January, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS:
NEW DELHI
CA No. 70 of 17
Sarfuddin S/o Sh. Sabasi
R/o Village Bicchore
PS Punahna
Distt. Mewat
Haryana ..... Appellant
Vs.
The State
(NCT of Delhi) ...... Respondent
Instituted on : 16.02.2017 Argued on : 11.01.2018 Decided on : 17.01.2018 J U D G M E N T 1 The appellant has filed an appeal against the judgment dated 7.12.2016 vide which he is convicted u/s 279/ 3337/304A IPC and order on sentence dated 1.2.2017 vide which he is sentenced to undergo RI for 6 months with fine of Rs.1000/ u/s 279 IPC and in Sarfuddin vs. State - CA No. 70/17 1 of 15 default of payment of fine to undergo SI for 1 month, RI for 2 years with fine of Rs.500/ u/s 304A IPC and in default of payment of fine to undergo SI for 15 days and RI for 6 for months u/s 337 IPC with fine of Rs.500/ and in default of payment of fine to undergo SI for 15 days. The benefit of section 428 CrPC has also been granted to the appellant.
2 The appeal has been preferred on the ground that the Ld. Trial Court has not properly appreciated the evidence on record. 3 The notice of the appeal is given to the state.
4 The facts of the case are like this. Prem Singh Sagar gave a statement to the police that on 5.9.2016 at 6.00am he was coming back after a walk with his pet dog. One motorcycle bearing registration no. DL3SBJ6148 came from Tajpur Pahari side and joined the main road at Jaitpur Mor. There were two boys on the motorcycle. One truck of closed body bearing registration no. HR38N8814 came from Sarita Vihar side in a high speed and hit against the motorcycle as a result pillion rider on the motorcycle fell down and motorcycle Sarfuddin vs. State - CA No. 70/17 2 of 15 rider came under the truck who was dragged up to some distance. The motorcycle rider was crushed under the wheels who has expired on the spot. The pillion rider got up and went away. Public persons gathered there. The truck driver was apprehended by the public persons who disclosed his name as Safruddin, i.e. appellant. The accident has taken place due to rash and negligent driving of appellant. His statement was recorded by the police which led to registration of the case. The investigation was carried out and charge sheet was filed u/s 279/337/304A IPC against the appellant.
5 Appellant put his appearance in Ld. Trial Court. Notice of accusation u/s 251 CrPC for offence u/s 279/337/304A IPC was framed to which he pleaded not guilty and claimed trial. 6 Prosecution has examined 7 witnesses. Appellant was examined u/s 313CrPC. His defence is that accident has taken place due to rash and negligent driving of motorcyclist. He has examined 1 witness in defence evidence.
7 Ld. Trial Court after hearing Ld. APP, Ld. Defence Counsel and Sarfuddin vs. State - CA No. 70/17 3 of 15
perusing the entire evidence on record has convicted and sentenced the appellant u/s 279/337/304A IPC.
8 PW1 Prem Sagar is complainant and eye witness. He stated that on 5.9.2009 at 6.00am he was coming back from Badarpur to his house after a walk with his pet dog. One truck bearing No. HR38N 8814 of closed body came in a high speed from Sarita Vihar side and hit against a motorcycle which was coming towards main road after taking turn from east side. The truck hit the motorcycle from behind as a result pillion rider fell down and motorcycle rider was dragged up to 100 yards who died on the spot. The public persons gathered on the spot. The truck was stopped by him. The pillion rider got up and went away from the spot. The truck driver, i.e. appellant was taken to PS. He came to know from the public that deceased is son of Soodan Singh who also reached on the spot and went to PS with him. His statement Ex. PW1/A was recorded. He has identified the appellant. During cross examination he has stated that he was at a distance of 100 yards from the place of accident. The suggestion is denied that he Sarfuddin vs. State - CA No. 70/17 4 of 15 did not see the accident or came to know about the accident after hearing the sound or motorcycle was in a high speed and hit against the truck or appellant was not arrested in his presence. 9 PW2 Manish is pillion rider. He stated that on 5.9.2009 at 6.00am he alongwith deceased Azad Bharti was going on a motorcycle bearing registration No. DL3SBJ6148. They reached at Jaitpur Mor towards Mathura Road where one truck bearing No. HR 38N8814 came from Sarita Vihar side in high speed and hit against the motorcycle form behind as a result deceased trapped under the truck and dragged up to 100 yards. He also sustained injuries. The deceased expired on the spot. Public persons have caught the appellant. He went to the house of deceased and informed about the accident. He has identified the appellant. Ex. PX1 to X4 are the photographs of both the vehicles. During cross examination he stated that they were not wearing helmets. The speed of motorcycle was moderate. No other vehicle was plying on the road at that time. He was taken to hospital on that day. The suggestion is denied that Sarfuddin vs. State - CA No. 70/17 5 of 15 accident has taken place due to fault of the deceased. 10 PW3 Bhim Prakash is formal in nature who has identified and received the dead body of deceased vide memo Ex. PW3/A. 11 PW4 Satyavir Bhardwaj (inadvertently recorded as PW3) is owner of offending vehicle No. HR38N8814. He stated that the said vehicle was driven by the appellant. He has taken the vehicle on superdari. He has identified the photographs Ex. PX1 to PX4 of the vehicles.
12 PW7 SI Tej Ram is IO of the case. He stated that on 5.9.2009 he was posted at PS, Badarpur. On that day at 6.00am he has received DD No.5A. He alongwith PW5 HC Jagdish (inadvertently recorded as PW4) went to Jaitpur Mor, Mathura Road where truck bearing No. HR38N8814 and motorcycle bearing No. DL3SBJ6148 were found in an accidental condition. The motorcycle was under the truck. Deceased Azad Bharti (name known later on) was found crushed. Prem Sagar met him on the spot whose statement Ex. PW1/A was recorded who also handed over the appellant to him. The dead body Sarfuddin vs. State - CA No. 70/17 6 of 15 was sent to Mortuary, AIIMS, New Delhi through PW5. PW6 Ct. Akhilesh (inadvertently as PW5) reached on the spot. Rukka Ex. PW6/A was prepared and sent to PS through PW6 for registration of case upon which FIR was registered. He prepared site plan Ex. PW6/B at the instance of the complainant. PW5 and 6 came back to the spot. The vehicles and D/L of appellant were taken into possession vide Fards Ex. PW4/B to D. The appellant was arrested. Personal search and arrest memos Ex. PW1/B and PW4/A were prepared. The owner of the truck also reached on the spot to whom notice u/s 133 MV Act Ex. PW6/C was given. The photographs of vehicles were taken. The dead body of deceased, after postmortem, was handed over to his relatives. The vehicles were got mechanically examined. Statements u/s 161 CrPC were recorded.
13 Likewise the testimony of PW5 HC Jagdish Prasad and PW6 Ct. Akhilesh.
14 The appellant has examined one witness in defence evidence.
15 DW1 Akbar Ali stated that on 5.9.2009 he was helper in the Sarfuddin vs. State - CA No. 70/17 7 of 15
truck. They were going at 6.00am from Noida to Chennai. The truck was loaded with goods. They reached at crossing, near Jaitpur Mor, Badarpur where one motorcycle came in a high speed and hit against the truck from the conductor side (near the rear tyres). The motorcyclist came under the tyres of the truck. The truck was stopped on hearing the sound. Public persons gathered on the spot. The appellant was driving the truck who was taken to PS. During cross examination by Ld. APP he stated that place of accident is a high way. Their speed was 40KMPH whereas speed of motorcycle was 80 90KMPH. He has seen the motorcycle at a distance of half kilometer that it is coming in high speed. It took nearly one minute for the motorcyclist to hit the truck. The motorcyclist was coming from the link road. He has no proof that he was helper in the truck. The suggestion is denied that he was not present in the truck on the day of accident.
16 Ld. Counsel for the appellant submitted that deceased was riding the motorcycle without wearing protective head gear. He Sarfuddin vs. State - CA No. 70/17 8 of 15 further submitted that deceased has joined the main road without bothering about the traffic on the main road and hit the motorcycle against the truck. He further submitted that appellant was neither rash nor negligent and accident has taken place due to negligence of deceased.
17 Ld. Addl. PP for the State submitted that the evidence on the record clearly shows that appellant was driving the truck in a rash and negligent manner and hit against the motorcycle from behind. He further submitted that there is nothing on record to substantiate the version of the appellant who has been rightly convicted by the Ld. Trial Court.
18 Heard and perused the record.
19 PW1 is an eye witness. PW2 is pillion rider of the motorcycle. PW4 is owner of the offending truck. PW5, 6 and 7 have carried out the investigation of the case. PW3 has received the dead body of deceased.
20 The appellant has not disputed FIR, MLC of injured, Sarfuddin vs. State - CA No. 70/17 9 of 15
postmortem report of deceased, mechanical inspection reports, identification memo of dead body of deceased and entry in register No. 19.
21 It is clear from the evidence on record that appellant was driving the truck as he has nowhere disputed that he was not the driver of the offending truck. PW4 is owner of the offending truck who has also stated that offending truck was being driven by the appellant. DW1 is helper of the truck who has also admitted driving of the truck by the appellant. The motorcycle was being driven by the deceased. The appellant has not disputed his arrest from the spot. It is also clear from the evidence on record that accident has taken place between the offending truck and the motorcycle at Jaitpur Mor, Mathura Road, Badarpur, Delhi.
22 The question is whether accident has taken place due to rash and negligent driving of appellant. The testimony of PW1 clearly shows that he was on walk with his pet dog. He was coming back to his house from Badarpur after the walk. He saw that the one truck Sarfuddin vs. State - CA No. 70/17 10 of 15 being driven by the appellant came from Sarita Vihar side in a high speed and hit against the motorcycle being driven by the deceased from behind as a result deceased was dragged up to 100 yards by the truck whereas pillion rider has fallen down and sustained injuries. PW2 is a pillion rider who has corroborated the testimony of PW1and further added that he has also sustained injuries.. No question or suggestion is put to PW1 and PW2 that appellant was not driving the truck in a high speed or hit the motorcycle from behind. The testimony of both the witnesses to this effect has gone unrebuted. 23 The defence of the appellant is that motorcyclist/deceased hit the rear of the truck. He has examined DW1 to this effect. PW1 has denied the suggestion that motorcyclist hit the truck. No question or suggestion is put to PW2 that deceased hit the motorcycle against the truck or they were driving the motorcycle in the high speed. No explanation is forthcoming why such question or suggestion is not put to him. The appellant should have put his defence to PW2 who was riding pillion but no such defence is put to him. The mechanical Sarfuddin vs. State - CA No. 70/17 11 of 15 inspection report of the motorcycle shows that rear shockers and assembly were damaged. Rear wheel rim was damaged. Back light assemble was damaged. The damage on the rear would not have been there in case motorcyclist had hit the rear of the truck. There is extensive damage on the motorcycle. This extensive damage is possible only if the motorcycle was hit from behind and thereafter dragged up to a distance. All these facts show that defence is without any merits and testimony of DW1 does not inspire confidence. 24 The offending truck hit the motorcycle from behind. It was morning time. It is highway. There was no other vehicle on the road. The possibility cannot be ruled out that appellant was driving the truck in the high speed. The appellant did not take care of the road joining the high way. The motorcycle was dragged up to some distance after hitting it from behind. This shows that truck was driven not only in a high speed but also in the negligent manner otherwise he would have stopped the truck well in time. This fact itself speaks about the rashness and negligence on the part of the appellant.
Sarfuddin vs. State - CA No. 70/17 12 of 15 25 The testimony of PW1 and 2 is consistent on the material
aspects of the case. No major contradiction has brought on record in order to cast aspersion on their testimony. They have no motive to depose against the appellant. There is no evidence of enmity. PW1 is an independent witness. PW2 was riding pillion on the motorcycle. Both of them will not allow the real culprit to go scot free. Their testimony is cogent, convincing and trustworthy and accordingly the same is relied upon.
26 Ld. Counsel for the appellant submitted that appellant be released on the probation of good conduct.
27 Ld. Addl. PP for the State has urged to the contrary. 28 One person has lost his life. The appellant was driving commercial vehicle. The deterrent punishment is more important in road accident cases so that persons who ply the vehicles on the road must bear in mind that they will have to face serious consequences including conviction and imprisonment in case of fatal accident. The appellant cannot claim sympathy because a person who plays with fire Sarfuddin vs. State - CA No. 70/17 13 of 15 cannot complain of burnt fingers. The leniency is in such like cases will do injustice to the family members of the deceased. A stern message has to be given to the society. To my mind, there is no ground to take a lenient view as Ld. Trial Court has already passed the sentence u/s 279/304A IPC .
29 I do not find any infirmity or perversity with respect to the conviction recorded u/s 279/304A IPC and sentence imposed u/s 279/304A IPC. The conviction and sentence u/s 279/304A IPC are upheld.
30 The appeal is dismissed. The appellant is taken into custody in order to serve the sentence imposed by Ld. Trial Court. His warrant of commitment be prepared and sent to Superintendent Jail, Tihar, New Delhi.
31 Attested copy of the judgment be supplied to the appellant free of cost.
32 TCR alongwith copy of the judgment be sent to the Ld. Trial Court.
Sarfuddin vs. State - CA No. 70/17 14 of 15
33 Appeal file be consigned to record room.
announced in the
open court on
17 January, 2018
th
(SURESH KUMAR GUPTA)
Additional Sessions Judge04 & Spl. Judge (NDPS) South East, New Delhi Sarfuddin vs. State - CA No. 70/17 15 of 15