Delhi District Court
State vs Javed Akhtar on 31 October, 2012
1
FIR No. 230/08
State Vs Javed Akhtar
Police Station DB Gupta Road
Under Section 304 (Part II), 308, alternatively
u/s 279, 304A, 338 IPC
Convicted U/s 279, 304 Part II and 308
IPC
03.11.2012
ORDER ON THE POINT OF SENTENCE
Pre: Ld. APP for the state.
Ld. counsel Sh. S B Singh, for convict.
Convict is in JC.
Arguments on sentence heard. Vide separate order placed along side
in the file, convict Javed Akhtar is sentenced to undergo Rigorous imprisonment
for 6 months R.I. for the offence u/s 279 IPC; Rigorous imprisonment for 3 ½
years for the offence u/s 304 Part II IPC; and further Rigorous imprisonment for
2 ½ years for the offence u/s 308 IPC. All sentences shall run concurrently.
Benefit of section 428 Cr. PC be given. Copy of this order and judgment be given
to the convict at free of cost forthwith. File be consigned to record room.
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
2
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
FIR No. 230/08
State Vs Javed Akhtar
Police Station DB Gupta Road
Under Section 304 (Part II), 308, alternatively
u/s 279, 304A, 338 IPC
Convicted U/s 279, 304 Part II and 308
IPC
03.11.2012
ORDER ON THE POINT OF SENTENCE
Pre: Ld. APP for the state.
Ld. counsel Sh. S B Singh, for convict.
Convict is in JC.
ld. APP submits that offence of such types are increasing day by day.
He again argues and submits that accused has been convicted for the
offences punishable u/s 279, 304 PartII IPC and 308 IPC. Ld. APP further
submits that accused was driving a bus No. DL 1 PB 0035 in a very rash and
negligent manner and with the knowledge to cause death by such act and he
caused death of two innocent persons namely Kapil and Vipin. He also
caused grievous hurt to Ms. Nidhi a pillion rider and one passerby Asgar Ali,
respectively. On these grounds ld. APP submits that convict deserve
maximum punishment.
Contrary to it, ld. Counsel Sh. for convict submits that convict is
aged about 28 years old. He has also old parents to look after who are
suffering with old age ailments. Accused is a married person. He is the only
bread earner in his family. He further submits that convict has already
remained in judicial custody for about 5 ½ months during the course of trial of
the case. Ld. counsel again submits that no previous criminal antecedents
3
have borne on record in respect of convict. On these grounds ld. counsel
for convict prays for taking lenient view at the time of awarding the sentence
and to release him on probation of good conduct.
I have heard the submissions of ld. counsel for the convict and ld. APP
as well. Keeping in view of the facts and circumstances of the case and
family background of accused. I am not inclined to release the convict on
probation of good conduct since in the present case two young persons have
died and one suffered grievous injury and one suffered hurt. So to my view
ends of justice will be met if convict is sentenced to undergo Rigorous
imprisonment for 6 months R.I. for the offence u/s 279 IPC; Rigorous
imprisonment for 3 ½ years for the offence u/s 304 Part II IPC and further
Rigorous imprisonment for 2 ½ years for the offence u/s 308 IPC.
Accordingly, convict Javed Akhtar is sentenced to
undergo Rigorous imprisonment for 6 months R.I. for
the offence u/s 279 IPC;
Rigorous imprisonment for 3 ½ years for the offence
u/s 304 Part II IPC;
and further Rigorous imprisonment for 2 ½ years for
the offence u/s 308 IPC
All sentences shall run concurrently.
Benefit of section 428 Cr. PC be given.
Copy of this order and judgment be given to the convict
at free of cost forthwith. Orders accordingly.
ANNOUNCED IN THE OPEN COURT
ON THIS 03.11.2012
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
4
230/08
State Vs/ Javed Akhtar
31.10.2012
Pre: Ld. APP for the State.
Accused on bail.
Vide separate judgment announced in the open court and placed
along side in the file, I convict accused Javed Akhtar for the offences
punishable u/s 279/ 304 Part II and 308 IPC. He be taken into custody
and sent to JC.
Now, case be fixed for arguments on the point of Order on
Sentence for 03.11.2012.
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
5
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 372/1/10
Assigned to Sessions. 20.07.08
Arguments heard on 20.10.2012
Date of order. 31.10.2012
FIR No. 230/08
State Vs Javed Akhtar s/o Umaruddin, r/o
H.no.1631, L1st, Sangam Vihar,
Delhi - 62.
Police Station DB Gupta Road
Under Section 304 (Part II), 308, alternatively u/s
279, 304A, 338 IPC
JUDGEMENT
1. Brief facts of the present case are that on 12.08.2008 at about 7.30 pm opposite Khalsa College T Point to TATA Showroom, DBG Road, Delhi, the accused while driving a bus bearing registration No. DL 1 PB 0035 in a rash and negligent manner had caused the death of Kapil, who was driving motorcycle bearing registration No. DL 6S 6483 and also death of one Vipin Kumar. another motorcyclist. He also caused grievous injuries to one Ms. Nidhi, who was riding on the motorcycle of Kapil and to one Asgar Ali, who was a passerby. The accused was arrested at the spot and charged with the offence punishable under Section 279 6 IPC, 304 IPC and 338 IPC as he was driving the above said bus in a rash and negligent manner as to endanger human life, caused the death of Kapil and Vipin and grievous hurt to Ms. Nidhi a pillion rider and a passerby Asgar Ali, respectively. This case was committed to the Sessions Court for trial.
2. Ld. Predecessor of this court after having gone through the material available on record and settled case law, framed a charge for the offences punishable u/s 304 (Part) II, 308 IPC, 279 IPC, 304 A IPC and 338 IPC against accused Javed Akhtar, vide order dated 02.04.2009.
3. To prove and substantiate its case, the prosecution has examined witnesses namely Sh. K.L. Bhargav as PW1, Sh. Rishi Bhargav as PW2, Sh. Nand Kishore Bhargav as PW3, Sh. Inder Sen Mishra as PW4, Sh. Govind Bhallabh Ojha as PW5, SI Pratap Singh (Retd.) as PW6, Sh. T. Siddiqui as PW7, Ms. Nidhi as PW8, Sh. Ajay Vinayak as PW9, Sh. Tarun Anand as PW10, Dr. Mohit Gupta as PW11, Dr. Kulbhushan as PW12, Ct. Sanjay Singh as PW13, HC Jadgish Prasad as PW14, Dr. Raju Kalra as PW15, HC Baljeet Dahiya as PW16, HC Ranjeet as PW17, SI Jeevan Singh as PW18, Dr. Sachin as PW19, 7
4. PW1 has deposed that he brought the motorcycle bearing registration number DL 6SX 6483, which was taken by his son, Kapil Bhargav on the fateful day in the Court. Said motorcycle was released on superdari. He got exhibited the motorcycle as P.1, superdaginama as Ex. PW1/A.
5. PW2 has deposed that on receipt of a telephonic call about the death of of his brother Kapil Bhargav caused by blue line bus, he immediately rushed to the hospital. He identified the dead body of his brother. His statement in respect of identification is Ex. PW2/A.
6. PW3 has deposed that on 12.08.2008, he received telephonic call about the death of his nephew Kapil Bhargav caused by blue line bus. On 14.08.2008, he identified the dead body of his nephew. His statement in respect of identification is Ex. PW3/A.
7. PW4 has deposed that on 13.08.2008, after receipt of inormation he came to JPN hospital and identified the dead body of his brotherinlaw, Vipin, who died because of accident by blue line bus on 12.08.2009. His statement in respect of identification is Ex. PW4/A.
8. PW5 has deposed that on 13.08.2008, after receipt of information 8 he came to JPN hospital and identified the dead body of Vipin, who died because of accident by blue line bus on 12.08.2009. His statement in respect of identification is Ex. PW5/A.
9. PW6 has deposed that on 13.08.2008, he was working as duty officer in police station DB Gupta Road and on the basis of a rukka sent by SI Jeevan Singh through HC Jagdish, he registered FIR bearing number 230/08 on computer through Ct. Shah Alam. He made his endorsement on rukka. Computerized copy of FIR is Ex. PW6/A and endorsement on rukka is Ex. PW6/B.
10.PW7 has deposed that on 14.08.2008, he mechanically inspected three vehicles bearing registration number DL1PB 0035 make Tata Bus, Hero Honda Motorcycle bearing registration number DL4SAG 3712 and Bajaj motorcycle bearing registration number DL6SX6483. His reports, in this respect are Ex. PW7/A, Ex. PW7/B and Ex. PW7/C respectively.
11.PW8 has deposed that on 12.08.2008 at about 7.30/7.35 pm, she was going to her residence from DBG upta road. Her husband Kapil Bhargava was on driver seat bearing registration no. DL 6S X 6483 and she was on the rider seat, there was red light and 9 their bike was in stationed position. One bus came at high speed from their back side and hit against their bike, since they were standing awaiting signal of green light. Thus bus was pertaining to route no. 39. She fell down. She tried to locate her husband but she did not find him. Later, she saw her husband was lying one one side of the road. She took her husband in cycle rickshaw to Bali Nursing Home, which was the nearest medical center available. She was also given medical treatment because she had received injuries. She further deposed that she did not remember the registration number of bus, it was of route no. 39. Her husband had expired because of that incident. There was also another casualty, she heard of it. She was withering with pain, therefore, she did not remember that how many other persons had received injuries in the incident. Later she remained admitted in ICU in Agarsen Hospital and was discharged before 1st September, 2008. Her statement was recorded by the police. Her statement is Ex. PW8/A.
12. PW9 has deposed that on 12.08.2008 at about 7.30 pm, he along with his wife came to market for shopping near Red Light, Khalsa College, Police Station, Prashad Nagar. They parked their vehicle on road side. He was about to get down from his car 10 from the driver seat and his wife was taking articles by opening the door of car, at this momemnt, he heard screaming sound and he saw that a bus at high speed was dragging a motorcycle under it for about 100/150 steps ahead. The bus was of route no. 39 and its registration number was DL and last number were 0035, and the middle order digits were not remembered to him. He further deposed that a car was ahead of the bus, and he stopped his car then the bus driver stopped his bus but he also hit in the rear portion of bus. He voluntarily deposed that the car driver might have viewed the circumstances from rear view mirror and this is why, he might have stopped the car in order to stop the bus. The driver of the bus get down from his bus, he tried to flee away, however, he was apprehended by him and others. There was a lady who had received injuries, one more person was lying uncoscious on the road; besides the bus had also hit another motorcycle. He further voluntarily deposed that there were total two motorcycles which were hit by the bus, one motorcycle was lying on the road side and another motorcycle was under the wheel of bus. He also deposed that there were about 3 or 4 persons, who received injuries. The police arrived and the driver was handed over to the police. It is also deposed by him that the 11 driver was appearing to be perplexed and probably he was under
the influence of intoxication. He correctly identified the accused. His statement was recorded by the police on 13.09.2008. Same is Ex. PW9/A.
13.PW10 has deposed that he has been working as a photographer for the last about 19 years. In the month of August or September, 2008, in the night time, one police official of constable rank, came to their Studio that some photographs are to be snapped on urgent basis. He took his digital camera and went opposite Bali Nursing Home, Dev Nagar, Delhi. He took 10 photographs of bus, motorcycle and of surrounding circumstances from different angles. Same are Ex. PW10/1 to Ex. PW10/10.
14.PW11 has deposed that on 13.08.2008, he was working as Junior Resident in Department of forensic Medicine in LNJP Hospital. On that day, deceased Vipin Kumar was referred for carrying autopsy. Autopsy was carried out and detailed report is Ex. PW11/A. The complete and detailed postmortem report is Ex. PW11/B. The opinion part is Ex. PW11/C. 12
15.PW12 has deposed that on 14.08.2008, he was working as Senior Resident in Department of Forensic Medicine in LNJP Hospital. On that day, deceased Kapil Bhargava was referred for carrying autopsy. Autopsy was carried out and detailed report is Ex. PW12/A. The complete and detailed postmortem report is Ex. PW12/B. The opinion part is Ex. PW12/C.
16.PW13 has deposed that on 12.08.2008, he was posted in the police station DBG Road, Delhi. On that day, at about 7.30/8.00 pm one call was received in the police station about the accident. Thereafter, he along with Ct. Baljeet Singh came to in front of TATA Showroom at DBG Road, Delhi, where Bus bearing registration number DL 1PB 0035 was found standing there and one motorcycle was also lying under that bus. Accused Javed Akhtar driver of the bus was beaten by the public and he was also found at the spot. The smell of alcohol was coming from the mouth of accused at that time. SI Jeewan Singh investigating officer of this case also came at the spot along with them. On the directions of the IO, he along with Ct. Baljeet Singh took the accused for his medical examination in Ldy Harding medical College & S.K. Hpospital, New Delhi. Thereafter, they came to 13 the spot and accused MLC was handed over to the IO. Accused was arrested by the IO vide arrest memo Ex. PW13/A and his personal search was conducted vide memo Ex. PW13/B. Driving licence of the accused was also taken into possession by the IO vide memo Ex. PW13/C. Bus driver also came at the spot and he had also produced the photocopy of the RC, Insurance, fitness, time table and pollution certificate to the IO. The same were taken into possession by the IO vide memo Ex. PW13/D. He correctly identified the accused. He further deposed that his statement was recorded by the IO, in this case.
17.PW14 deposed that on 12.08.2008, he was posted in the police station DBG Road. On that day, DD no. 36 A weas recorded in the police station in respect of accident and it was given to SI Jeewan Singh near Khalsa College Main Road, Delhi. There one bus bearing registration no. DL 1PB 0035 was standing on the road. One motorcycle was also lying on the road and another motorcycle was lying under that bus. The motorcycle bearing registration no. DL 4SX 6483 & No. DL 4S AG 3712, which were also in damaged condition. The dead body of one person was also lying under that bus. Another motorcyclist was also lying 14 dead at the spot. Both dead body were also taken to the hospital. At the spot, there was a lot of crowd of public and accused was also present at the spot and he was beaten by the public at the spot. Accused was brought to the hospital by Ct. Baljeet & Ct. Sanjay. He remained at the spot. IO went to the hospital. After arrival of the IO from the hospital, he had given him rukka for registration of the case, which he took to the police station for registration of FIR. After registration of the FIR, duty officer had given him the COPY OF THE FIR and original rukka, which he handed over to the IO at the spot. He further deposed that on investigation, it was revealed that the motorcyclist namely Kapil was died at the spot. Ms. Nidhi wife of Kapil was taken to the hospital for her medical examination. The name of another person, who was died at the spot revealed as Vipin Kumar. His body was taken out from underneath of that bus. It was also learnt at the spot that one pedestrian was also hit by that bus, whose name was also revealed as Azghar Ali, who was brought in nursing home by the IO. At the spot, statement of Ajay Vinayak was recorded by the IO. He further deposed that from the spot, IO seized the motorcycle bearing registration no. DL 4SAG 3712, another motorcycle bearing registration number DL 4SX 6483 and 15 bus bearing registration no. DL 1 PB 0035 vide memo Ex. PW 14/A, PW14/B and PW014/C respectively. His statement was also recorded by the IO.
18.PW15 has deposed that on 12.08.2008, the patient namely Asghar Ali & Ms. Nidhi were brought to the hospital with the alleged history of road accident hit by bus. They were examined and their MLCs were prepared by him. MLC of Azghar Ali is Ex. PW15/A and MLC of Ms. Nidhi is Ex. PW15/B.
19.PW16 has deposed that on 12.08.2008, he was posted at PS DBG Road. On that day, he along with SI Jeevan and Ct. Sanjay Singh went at near khalsa College where one Bus no. DL 1PB 0035 was found parked in accidental condition. IO produced injured Javed, driver of the bus, who was beaten by public persons, to take him to Lady Harding Hospital for his medical examination. He along with Ct. Sanjay had taken accused Javed to the hospital, where he was medically examined by the doctor. Thereafter, they came back at the spot and produced the accused his MLC before the IO. IO arrested accused Javed and prepared his personal search memo and arrest memo vide Ex. PW13/B and 16 PW13/A.
20.During crossexamination, he deposed that he was told by the IO that accused has been beaten by public persons. IO had informed family members of accused regarding his arrest. He did not remember as to who was informed. He denied the suggestion that he did not go alongwith the IO to the spot or that he was deposing falsely at the instance of the IO or that he did not join any proceedings of the present case.
21.PW17 has deposed that on 13.08.2008, he was posted as MHC (M). On that day, SI Jeewan deposited two motorcycle bearing no. DL 6 SX 6483 and DL4SAG 3712 and one bus no. DL 1PB 0035. He made an entry to this effect vide Sl. no. 1523, photocopy of the same is Ex. PW17/A. He further deposed that on 05.11.2008, aforesaid bus was released on supardari to Ballubh Gandhi. On 01.09.2008, motorcycle no. DL 6 SX 6483 was also released on supardari.
22.PW18 has deposed that on 12.08.2008, he was posted at PS DBG Road. On that day, at about 07:00 PM, he received copy of DD No.36A, which is now Ex.PW18/A, He along with HC Jagdish went near Khalsa College, in front of red light. He found one motorcycle in accidental condition near the traffic signal. He proceeded a little further, one bus no. 17 DL 1P 0035 and one motorcycle in accidental were found on the road. He came to know that injured have been taken to Bali Nursing Home, DBG Road. He directed HC Jagdish to remain at the spot to safeguard the site. He called the other police staff at the spot. After leaving behind HC Jagdish, he went to Bali Nursing Home. he collected four MLCs from the hospital. On two MLCs, the patients were shown brought dead. On one MLC, patient Asgar Ali was shown referred to Lady Harding Hospital. The fourth MLC was that of a lady who was admitted at Bali Nursing Home. Thereafter, he went to Lady Harding Hospital, he contacted Asgar Ali. Patient Asgar Ali was shown fit for statement. He recorded statement of Asgar Ali, vide Ex.PW18/B. Thereafter, he came back at the spot. He made his endorsement on the statement of Asgar Ali vide ExPW18/C. He gave tehrir to HC Jagdish for getting the case registered. At the spot, he met with one eye witness. He inspected the site, prepared site plan ExPW18/D. HC Jagdish came back at the spot after getting the case registered. He took the vehicles i.e. 18 two motorcycle and the bus into police possession through seizure memo Ex.PW14/A, B and C respectively. Accused Javed Akhtar, driver of the offended bus, was beaten by the public persons who met him at the spot when he reached at the spot from the hospital. He sent accused Javed Akhtar to Lady Harding Hospital by one constable. He sent both the dead bodies to mortuary, J.P.N. Hospital from Bali Nursing Home. The vehicles were got deposited in the malkhana. He conducted the proceedings under section 176 Cr.P.C. of deceased namely Vipin Kumar and Kapil Bharghav, vide memo Ex.PW18/E and F respectively. He got conducted the mechanical inspection of the vehicle through mechanical inspector. The place of occurrence was also got photographed. He had also recorded the statement of persons who identified the dead body. After the post mortem, the dead body was given to the relative of the deceased for funeral rites, vide Ex.PW18/G. Later on, he arrested accused Javed Akhtar. prepared his personal search memo and arrest memo vide Ex.PW13/B and A. He 19 had also taken driving license of accused Javed, vide Ex.PW13/C. He had also given notice under section 133 M.V. Act to Vallabh which is Ex.PW18/H, which was duly replied by the owner of the bus. He had also taken photocopy of RC, Permit, Insurance etc. from Vallabh vide Ex.PW13/D. In the medical examination of accused it was mentioned that accused was under the influence of liquor. The present FIR NO.230/08 was recorded by duty officer SI Partap Singh the same is Ex.PW18/I. He also identified the 10 photographs placed on judicial file which are Ex.PW10/1 to PW10/10. During the course of investigation, I had also taken photocopy of power of attorney from Vallabh vide memo Ex.PW18/J. He further deposed that he recorded statement of witnesses and after completion of investigation challan was prepared. The bus and one motorcyle have already been released on superdari to the superdar and one motorcycle is lying with the MHC(M). He identified the vehicles as shown in the photographs as shown in the judicial file. He correctly identified accused Javed Akhtar in 20 the court.
23.In his crossexamination, he deposed that he made inquiries from many persons regarding the occurrence. I did not site any of them as a witness. He did not record statement of any witness at Bali Nursing Home. He had shown the position of the vehicle in the site plan, prepared by him, at the instance of one of the public person, whose name he does not remember. He further deposed that he did not obtain signatures of that witness on the site plan. He denied that all the proceedings were conducted at the PS. He further denied that he did not carry out the investigation of this case in a fair and proper manner.
24.PW19 was deputed to depose on behalf of Dr. Neetu Beetan. He deposed that he has seen MLC No.40087 of patient Javed. As per MLC, Javed was brought by PCR official at Lady Harding Medical College on 12.08.2008 at about 08:35 PM, with alleged history of assault. He further deposed that the aforesaid MLC has been prepared by Dr. Neetu Beetan. He identified her handwriting and signatures 21 at point A at Ex.PW19/A.
25.Having perused the testimonies of all the material witnesses it has come on record that PW18 SI Jivan Singh, on having received DD No.36A which is Ex.PW18/A, reached at the spot and then to the Lady Harding Hospital where he recorded statement of Asgar Ali vide Ex.PW18/B and endorsed the same vide Ex.PW18/C. Accordingly, present case FIR No.230/08 vide Ex.PW18/I was registered against accused Javed Akhtar for the offence u/s 279/338/304A IPC . He prepared site plan vide Ex.PW18/B and took the aforesaid two motorcycles and the offended bus into possession vide seizure memo Ex.PW14/A, B and C and also conducted proceedings under section 176 Cr.P.C., vide Ex.PW18/E and F. Accused Javed Akhtar was arrested vide memo Ex.PW13/B and A. His license was seized vide Ex.PW13/C. I.O. took the photocopy of the documents of the vehicle vide Ex.PW13/D. Notice under section 133 M.V. Act vide Ex.PW18/H was given to the owner of the offending bus. Photographs were taken vide Ex.PW10/1 to Ex.PW10/10. Accused Javed Akhtar was medically examined by Dr. Neetu Beetan vide MLC Ex.PW19/A. 22
26.The dead body of Kapil Bharghav and Vipin were identified by Rishi Bharghav, Nand Kishore Bharghav, Indersen Mitra and Govind Ballabh Ojha vide dead body identification memos Ex.PW2/A, Ex.PW3/A, Ex.PW4/A and Ex.PW5/A.
27.PW11 Dr. Mohit Gupta and PW12 Dr. Kulbhushan conducted postmortem on the dead body of Vipin Kumar Dubey and Kapil Bharghav vide PM reports Ex.PW11/A and Ex.PW12/A. Injured Asgar Ali and Nidhi were also medically examined by PW15 Dr. Raju Kalra, vide MLC Ex.PW15/A and PW15/B.
28.PW1 K.L. Bharghav is the owner of motorcycle bearing registration no. DL6SX 6483 and he produced the same during the course of his examination. PW2 Rishi Bharghav the brother of the deceased Kapil Bhraghav and PW3 Nand Kishore Bharghav is uncle of Kapil Bharghav. They both identified the dead body of deceased Kapil Bharghav in the mortuary on 14.08.2008, vide their statements Ex.PW2/A and Ex.PW3/A. PW4 Inder Sen Mishra and PW5 identified the dead body of deceased Vipin, vide their statements Ex.PW4/A and Ex.PW5/A respectively. PW6 SI Pratap Singh is the duty officer who 23 recorded FIR No.230/08 and made his endorsement on the rukka, vide Ex.PW6/A and Ex.PW6/B. PW7 T. Siddiqui on 14.08.2008, mechanically inspected three vehicles bearing no. DL 1PB 0035, make Tata Bus, vide his detailed report Ex.PW7/A. On the same day, he also examined Hero Honda Motorcycle bearing no. DL4SAG 3712 and Bajaj Motor cycle DL6SX6483 vide his detailed report Ex.PW7/B and Ex.PW7/C respectively.
29. All these witnesses have also been crossexamined. I have gone through their crossexamination also carefully. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being. However, no material contradiction has come on record which may affect the case of the prosecution. On minor type of contradictions the Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case: "minor discrepancies in the evidence of the eye witnesses are immaterial unless they demolished the basic case of the prosecution".
Observations made in the aforesaid case by the Hon'ble Supreme 24 Court are exfacie indicative of the fact that when contradictions are minor the truthfulness of the witness cannot be discredited in all.
30.After closing prosecution evidence, statement of accused u/s 313 Cr. PC was recorded. Accused denied all the allegations and deposed that he has falsely been implicated in this case. He denied to lead defence evidence.
31.Arguments were heard at length. During the course of arguments ld. Counsel for the accused submitted that accused is innocent. He has not caused any accident. Ld. Counsel again argued and submitted that some other vehicle had caused the accident but he has wrongly been named in this case.
32.Contrary to it, ld. APP submitted that prosecution has successfully proved its case against accused for the offences under Section 304(part II)/308/ 279/ 304A/ 338 IPC since all the material witnesses have correctly identified the accused as culprit who was driving the offending vehicle i.e. bus bearing no. DL 1 PB 0035 on 12.08.2008 at opposite Khalsa College T point to 25 TATA Showroom DBG Road, Delhi and hit two motorcyclists who have succumbed to injuries on the spot vide deposition of PW.8 and PW9. ld. APP further argued and submitted that in the mechanical report it has come on record that brake and staring of the offending vehicle were O.K. Thus, it can easily be inferred that accused voluntarily hit the bus against two motorcycles and caused death of two innocent persons. Ld. APP further argued and submitted that accused has also caused grievous hurt to more persons, meaning thereby that accused has no respect for other's human lives. On these grounds ld. APP submitted that accused be convicted.
33.Before reaching at any conclusion let the relevant sections be re produced, which are as under: "304. Punishment for culpable homicide not amounting to murder.Whoever commits culpable homicide not amounting to murder shall be punished with 3[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which me death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
308. Attempt to commit culpable homicide.Whoever does any act with such intention or knowledge and under such 26 circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section."
34.Section 299 defines culpable homicide as the act of causing death:
1. with the 'intention' of causing death;
2. with the intention of causing such bodily injury as is 'likely to cause death'
3. with the 'knowledge' that such act is likely to cause death.
35.The first and second clauses of the section refer to 'intention' apart from 'knowledge' and the third clause refers to knowledge apart from intention. "Intent" and "knowledge" in the ingredients of section 299 postulate the existence of positive mental attitude and this mental condition is the special 'mens rea' necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause the death. The knowledge in the third condition contemplates knowledge of 27 the likelihood of the death of the person. If death is caused in any of these three circumstances, the offence of culpable homicide is said to have been committed. One may suffer death by the omission on the part of someone else in loco parents. If there is a duty to act, an omission to perform duty resulting in death of one under care would entail liability for culpable homicide not amounting to murder. If the nature of the connection between the act and the death is in itself obscure, or if it is obscured by the action of concurrent causes, or if the connection is broken by the intervention of the subsequent causes, or if the interval of time between the death and the act is too long, the above condition is not fulfilled.
36.It is indispensable that the death should be clearly connected with the act of violence, not merely by a chain of causes and effects, but by such direct influence as is calculated to produce the effect without the intervention of any considerable change of circumstances. Motive is something which prompts a man to form an intention and knowledge is an awareness of consequences of the act. More often intention and knowledge merge into each other and mean the same thing. More or less an intention can be 28 presumed from knowledge, when one says that a man is presumed to intend the natural and probable consequences of his own act. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things.
37.Under Section 304 , prosecution must prove:
1. the death of the person in question;
2. that such death was caused by the act of the accused;
3. that the accused intended by such act to cause death;
4. that he intended by such act to cause such bodily injury as was likely to cause death; or
5. that he knew that such act of his would be likely to cause death.
38.Where, the case is on the border line between murder and culpable homicide not amounting to murder, the accused is entitled to the benefit of any reasonable doubt and he can be convicted only under this section. The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity attack, multiplicity of injuries and all other surrounding circumstances. 29 The knowledge of the consequences which may result in doing an act is not the same thing as intention that such consequence should ensure. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow.
39.The most important consideration upon a trial for this offence is the intention or knowledge with which the act which caused death, was done. The intention to cause death or the knowledge that death will probably be caused, is essential and is that to which the law principally looks. And it is of the utmost importance that those who may be entrusted with judicial powers should clearly understand that no conviction ought to take place, unless such intention or knowledge can from the evidence can be concluded to have really existed. Referring to Virsa Singh and Jagrup Singh, the Supreme Court stated that clause thirdly consists of two parts. The first part is that there was an intention to inflict an injury, that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Whereas the second part whether it was sufficient to cause death is an objective inquiry and it is a matter of inference 30 or deduction from the particulars of the injury.
40.Section 304, Part II states that the second part no doubt speaks about knowledge and does not refer to intention which has been segregated in the first part. In the case in hand, vide depositions of PW8 Ms. Nidhi (injured lady); PW9 Ajay Vinayak (eye witness) and PW18 SI Jeevan Singh, it has categorically come on record that on 12.08.2008 at about 7.30 pm, opposite Khalsa College at T Point to TATA Showroom, DBG Road, Delhi, accused was driving a bus No. DL 1 PB 0035 in a rash and negligent manner and he had caused the death of Kapil, who was driving motorcycle bearing registration No. DL 6S 6483 and also caused death of Vipin Kumar. another motorcyclist. Further, accused caused grievous injuries to PW8 Ms. Nidhi, who was riding on the motorcycle of Kapil and to Asgar Ali, who was a passerby. The accused was arrested at the spot. Besides, as per deposition of PW7 T. Siddiqui the brake and staring of the offending vehicle i.e Bus bearing no. DL 1 PB - 0035 were OK vide mechanical inspection report Ex PW7/A. Postmortem reports of deceased namely Vipin Kumar and Kapil Bhargav 31 have also been proved on record vide Ex.PW11/A, Ex.PW11/B and opinion as Ex.PW11/C; PW12/A, PW12/B and PW12/C respectively. Accused had caused two death of innocent persons by driving the bus in a very rash and negligent manner and he also caused grievous hurt to PW8 Smt. Nidhi vide MLC Ex.PW15/B and as per deposition of PW15 Dr. Raju Kalra, she suffered a right fracture of fibula lower one third and she was found having pain deformity in right ankle. The brake and staring of the offending vehicle were OK, vide deposition of PW7.
41.In light of these facts and circumstances it can easily be inferred that accused had the knowledge that injuries caused by him to the deceased were likely to cause death in the ordinary course of nature, while he was driving a big vehicle i.e. Bus. Hence, I am of the view that prosecution has successfully proved its case for the offences punishable u/s 279/ 304 Part II and 308 IPC for causing death of deceased Kapil and Vipin Kumar as the driving of vehicle in question with the extreme rashness and negligence entails the 'knowledge' that it is likely to cause death if the hurt is caused to any person by such act, I also hold the accused guilty for the offence u/s 308 IPC for causing grievous hurt to injured Smt. 32 Nidhi and Asgar Ali for the reasons discussed in preceding paras.
Accordingly, I convict accused Javed Akhtar for the offences punishable u/s 279/ 304 Part II and 308 IPC .
ANNOUNCED IN THE OPEN COURT ON THIS 31.10.2012 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi