Delhi District Court
State vs Suresh Kumar on 4 May, 2009
1
FIR NO. 252/97
IN THE COURT OF SH. J.P. NAHAR, METROPOLITAN
MAGISTRATE, DELHI
FIR NO: 252/97
U/S: 279/304A IPC
P.S:Timarpur
State V/s Suresh Kumar
JUDGMENT
Sl. No. of the case 88/2
Date of commission of offence 15.06.1997
Name of the complainant Ashok Kumar S/o Sh. Rachh
Pal Singh, R/o 2/79, Brij Puri
PS Gokul Puri, Delhi
Name, parentage and address Suresh Kumar
of the accused. S/o Shri Prakash Chand
R/o Vill. Dhaneta, P.S.
Nadon, District Hamirpur
(H.P.)
Present Address:
3965, Alight Transport,
R.A.R. Delhi
Offence complained off U/S 279/304A IPC
Plea of accused Pleaded not guilty
2
FIR NO. 252/97
Final order Convicted
Date of order 2.5.2009
Date of final arguments heard 2.5.2009
BRIEF FACTS AND REASONS FOR DECISION :
1. The facts in brief are that on 15.06.1997 at 11 PM at Yamuna Bridge, Wazirabad accused was driving truck No. HR-38-7117 in a rash and negligent manner so as to endanger human life and personal safety of others and on the aforesaid date, time and place while driving the aforesaid vehicle in aforesaid manner he had caused death of Dharam Pal Sharma not amounting to culpable homicide and thereby he had committed the offence punishable U/s 279/304A IPC.
2. The challan against the accused was filed on 29.08.1997 and accused was summoned. Notice was given to the accused on 03.03.1999.
3. The evidence against the accused was led. The prosecution has examined 11 witness. PE was closed on 06.06.2007. Thereafter statement of accused was recorded on 07.09.2007 wherein the accused has denied that on 15.06.1997 at about 11 Pm he was driving the truck 3 FIR NO. 252/97 No. HR-38-7117 in question. He also shows ignorance regarding the accident. He was driver on the aforesaid vehicle in question but the said accident had not been caused due to his negligence and rash driving. He further shows ignorance about the death of deceased and denied all the allegations levelled against him. Police has filed a false and fabricated case against him. The accused did not led any evidence in defence.
4. Parties heard and record perused.
5. The first ingredient prosecution has to prove beyond reasonable doubt is that the accused was driving the vehicle in a public way in a rash and negligent manner and by such driving accused had caused the accident.
6. PW1 has deposed that Dr. Rajeev Ranjan was working with him and he is well conversant with his handwriting and signature as he has worked with him. He had seen the post mortem report of Dharam Pal Sharma which was in handwriting of Dr. Rajeev Ranjan having his signature at point A. According to the report the cause of death was haemmorhage and shock consequent to injuries caused by blunt force impact hard surface/object and all injuries were ante-mortem and two days in duration and time since death was approximately four to six hours. 4 FIR NO. 252/97
7. PW2 has deposed that on 15.06.1997 he was posted at Police Station Timar Pur and on that date DD No. 21A was received by HC Virender on which he and HC Virender went to Wazirabad bridge there a bus No. DBP 1307 and truch No. HR 38-7117 were found. Ashok Kumar driver of bus and accused who was in custody of bus driver were found there. They came to know that injured has gone to hospital. HC Virender has gone to hospital leaving him on at the spot and he came back on the spot and recorded the statement of Ashok Kumar. HC handed over the rukka to me and he left the spot at 1:50 PM with rukka for Police Station and reached at Police Station at 02:05 PM and he got the case registered and came back at the spot and handed over the original rukka with copy of FIR to HC Virender and IO recorded the same document but he did not know which documents were prepared and then they returned to police station with truck, bus & the accused.
8. PW3 has deposed that on 17.06.1997 he had identified the dead body of his maternal uncle Sh. Dharam Pal Sharma who expired in the road accident and the identification memo is Ex. PW3/A which bears his signature at point A.
9. PW5 has deposed that on 16.06.1997 he mechanically inspected the 5 FIR NO. 252/97 vehicle No. DBP-1307 and truck no. HR-38-7117 on the request of HC Virender Singh at Police Station Timar Pur. Fresh documents filed on the bus body as rear side body damaged.
10.PW6 has deposed that on 15.06.1997 she alongwith her husband was coming from Haridwar to Delhi by a bus bearing no. DBP-1307 and about 7:00 PM the bus reached at Wazirabad bridge, a truck no. HR-38- 7117 came from opposite side while driving in a negligent and zig-zag manner and hit at the right side of her bus where her husband was sitting at the window side and her husband suffered injuries on his head, right hand and right portion of his body and widow glass and other portion of the bus also got damaged. She got down from the bus and her husband was also taken down from the bus with the help of the other passengers and she saw the truck driver on the spot who was caught alongwith his truck at the spot and she took her husband in a TSR to Hindu Rao Hospital and in the way she had also informed at the Police Station Timar Pur about the accident. She admitted her husband in the hospital and treatment was provided to them but he was died in the morning. After post-mortem her husband dead body was handed over to him and she identified her husband dead body in the 6 FIR NO. 252/97 mortuary of Hindu Rao Hospital vide her statement Ex. PW6/A which bears her signature at point A.
11.PW7 has deposed that on 15.06.1997 he was posted at Police Station Timar Pur and was on duty as DO and during his duty at about 11:45 PM an information about an accident at Wazirabad bridge between a bus and truck was received and he recorded the information vide DD No. 21 dated 15.06.1997 and sent HC Virender Singh alongwith CT Mukesh to the spot and same is bears his signature at point A. Original rojnamcha of the said DD has been destroyed, copy of the same order Mark A produced before the court.
12.PW8 has deposed that on 15/16.6.97 night he was posted as DO at Police Station Timar Pur from 12 midnight to 8 AM. On that day at about 1.50 AM he received a rukka through Ct. Mukesh sent by HC Virender Singh, on the basis of which he recorded FIR No. 252/07 u/s 279/304A IPC.
13.PW9 has deposed that on 15.6.97 at about 11 PM he was working as helper on the bus No. DBP-1307. He saw one truck coming from the front side which was being driven in a zig-zag manner. Since the truck was not being driven properly and was rashly driven the driver of his bus 7 FIR NO. 252/97 stopped our bus in a side. The bus was standing on the corner of the road on Wazirabad bridge. The road was narrow and sufficient place was not available for plying two vehicles on the said road. The accused who was driving the aforesaid truck in zig-zag manner rashly hit on the right back side of the bus. Due to the impact of the accident the body of the bus was torn. The aforesaid caused stampede amongst the passenger in the bus and they started running away from the back side. He also got down immediately and went to the back side. After all the passenger left he saw one man lying on a seat and his right hand was injured. Blood was coming out of it and the man was lying still. Since the road was narrow and after the accident the truck driver could make his way as the truck also got struck. He apprehended the driver. He handed over the accused to the police. The registration no. of the truck which was being driven by the accused was HR-38-7117. The injured in the meanwhile was taken to the hospital.
14.PW10 has deposed that on 15.6.97 at about 11 PM he was driving the bus bearing No. DBP-1307 and was coming back from Haridwar. At the aforesaid time he had reached Wazirabad bridge. He saw one truck which was being driven rashly in zig-zag manner. He stopped the bus 8 FIR NO. 252/97 in the middle of the bridge. The truck driver tried to take a cut due to which it struck against the bus towards the right hand back side. One passenger was sitting with his hand out from the window. Since the space available was narrow and the truck could not make his way the driver stopped the truck and the truck driver was apprehended by him and the passenger. He thereafter replaced the bus so as to ease the traffic and stop it nearby and police reached at the spot and he handed over the accused to the police. His statement was recorded by the police which is Ex. PW10/A bearing his signatures at point A. The bus and the truck was taken into possession by the police and due to the impact of the accident the mirror of the bus was broken and the tin sheet of the bus had sustained dent. He admitted that accused was arrested in his presence vide memo already Ex. PW2/C and driving licence was also seized in his presence vide memo already Ex. PW2/B. Site plan was prepared on his instance and is Ex. PW10/B. Besides him helper Atul Kumar was also present in the bus and later one during proceeding after the accident was caused.
15.PW11 has deposed that on the midnight of 15/06/1997 & 16/06/1997 he was posted at Police Station Timar Pur as HC on that day and he 9 FIR NO. 252/97 received DD No. 21A, regarding accident. Thereafter he alongwith Ct. Bhupesh Kumar reached at the spot i.e. Yamuna Bridge, Wazirabad where he found a bus and truck in accidental condition and the driver of the bus Ashok Kumar and driver of the truck Suresh Kumar were present at the spot. He recorded the statement of Ashok Kumar vide memo Ex.PW8/B bears his signatures at point B and he also made his endorsement on the said statement from point A to A and prepared rukka and after that he came to know that inured was removed to the hospital, Hindu Rao Hospital where injured was declared unfit for statement. He came back at the spot and they sent the Ct. Bhupesh for registration of the case and in the meantime he prepared site plan at the instance of Ashok Kumar vide memo Ex. PW10/B bears his signatures at point A. The vehicle were taken into possession vide seizure memo Ex. PW2/A and PW2/B and after sometime, Ct. Mukesh came back at the spot alongwith original rukka and copy of FIR. Accused was arrested vide arrest-cum-personal search memo Ex. PW2/C and the driving licence of accused was taken into possession vide seizure memo Ex. PW2/B. Thereafter, accused was released on police bail and vehicle were brought to Police Station and deposited the same with Malkhana. 10 FIR NO. 252/97 On the next day, on 16.06.1997 he requested for mechanical inspection upon the vehicles vide his application Ex. PW11/A and Ex. PW11/B. Vehicles were released on superdari on 17.06.1997, he came to know that the injured died. He got conducted the post mortem of deceased vide his application Ex. PW11/C and after postmortem the dead body of deceased was handed over to his relatives after identification. During the investigation, he collected the postmortem report and MLC from the hospital and recorded the statement of witnesses of this case.
16.In the statement of accused recorded u/s 281 CrPC he has admitted that he was driving the truck in question but accident was not caused due to his rash or negligent driving. The accused was apprehended at the spot and it has come out in the deposition of the witnesses discussed above including PW9 & PW10. Therefore, it is held that prosecution has proved beyond reasonable doubt that accused has caused accident while driving the truck with the bus on 15.6.1997 around 11 PM at Yamuna Bridge, Wazirabad, Delhi.
17.The next ingredient prosecution has to prove reasonable doubt is that in this accident a person had been injured or a death had been caused. PW1 has deposed that Dr. Rajeev Ranjan was working with him and he 11 FIR NO. 252/97 is well conversant with his handwriting and signature as he has worked with him. He further deposed that he had seen the post mortem report of Dharam Pal Sharma which was in handwriting of Dr. Rajeev Ranjan having his signature at point A. He also deposed that according to the report the cause of death was haemmorhage and shock consequent to injuries caused by blunt force impact hard surface/object and all injuries were ante-mortem and two days in duration and time since death was approximately four to six hours. PW2 has deposed that on 15.06.1997 he was posted at Police Station Timar Pur and on that date DD No. 21A was received by HC Virender on which he and HC Virender went to Wazirabad bridge there a bus No. DBP 1307 and truch No. HR 38-7117 were found. He has further deposed that Ashok Kumar driver of bus and accused who was in custody of bus driver were found there. He has further deposed that they came to know that injured has gone to hospital. He also deposed that HC Virender has gone to hospital leaving him on at the spot and he came back on the spot and recorded the statement of Ashok Kumar. He has also deposed that HC handed over the rukka to me and he left the spot at 1:50 PM with rukka for Police Station and reached at Police Station at 02:05 PM and he got the case 12 FIR NO. 252/97 registered and came back at the spot and handed over the original rukka with copy of FIR to HC Virender and IO recorded the same document but he did not know which documents were prepared and then they returned to police station with truck, bus & the accused. PW3 has deposed that on 17.06.1997 he had identified the dead body of his maternal uncle Sh. Dharam Pal Sharma who expired in the road accident and the identification memo is Ex. PW3/A which bears his signature at point A. PW6 is Shri K.V. Singh, Medical Record Keeper from Hindu Rao Hospital who is read as PW6A to avoid confusion with the evidence of PW6 Smt. Saroj as same number is given to two witness. PW6 has proved the MLC No. 7760/97 dated 15.6.1997 prepared by Dr. Amit as Ex.PW6/A and he has identified signature of the doctor having seen him writing and signing but the said witness remained uncross-examined as he left without permission of the court. However, the accused has not pressed for re-examination of the abovesaid witness who is formal witness but since opportunity for cross examination for the said witness is not given he is not read in evidence against the accused. The deposition of PW1 is clear to the fact that death was caused due to haemmohage and shock due to injuries and 13 FIR NO. 252/97 shock caused by blunt force on hard surface and all injuries were ante mortem. The post mortem report is Ex.PW1/A which was conducted on the victim Dharam Pal Sharma on 17.6.97 and the patient was admitted on 15.6.97. There were injuries on right temporal, abrasion on outer right arm and right shoulder and stitched lacerated wound and right arm, fracture of right humorous and abrasion on right back of shoulder. Therefore, it is held that prosecution has successfully proved beyond reasonable doubt that when the victim was traveling in the said bus and due to the accident in the present case the victim had suffered injuries due to which he suffered death. The nature of injuries could be caused in the accident described and happened in the present case. Hence, it is held that in the accident the truck of the accused and the bus the victim Dharam Pal Sharma who was sitting on right side of the bus had suffered injuries and has suffered death in the case.
18.The last ingredient the prosecution has to prove beyond reasonable doubt is that accused was rash or negligent by such driving when he had caused the said accident. For the sake of brevity the deposition of witness referred above in two ingredients discussed above of the offence be read herein in toto. Ld. Counsel for accused has submitted that the 14 FIR NO. 252/97 case of accident is false because both the bus and the truck had suffered accident on right side and which is impossible and one of the vehicle should have suffered accident on right side and other should on left side. I do not agree with the above submission as it is seen that the truck and bus were coming opposite each other due to which accident had occurred and collusion has occurred from driver side both in bus and truck and the driving side is only on the right side. The Mechanical Inspector in the case is examined as PW5. PW5 has deposed that on 16.06.1997 he mechanically inspected the vehicle No. DBP-1307 and truck no. HR-38-7117 on the request of HC Virender Singh at Police Station Timar Pur. He further deposed that fresh documents filed on the bus body as rear side body damaged. PW5 had found fresh damage both on the body of the bus and the truck on the right side and the detailed report is proved on record as Ex.PW5/A. Nothing inconsistent has come in the evidence. The mechanical inspection report is perused and it is noted that the mechanical inspection report of the bus is proved as Ex.PW5/A and Ex.PW11/A and the mechanical inspection of the truck is proved as Ex.PW5/B and Ex.PW11/B. On the bus the fresh damage was found on rear right side body. The bus was fit for road test. On the 15 FIR NO. 252/97 truck right side front corner was scratched having fresh damage and the vehicle was fit for road test. No mechanical defect was found in both the vehicles. Ld. Counsel for accused has taken defence that the victim himself was keeping his hand out from the bus when he was sitting on passenger seat and the victim has suffered injuries only because of that act. I do not agree with the above submission as it is not only hand of the victim is injured but the head is also having impact of blunt force. Had there only been scratching on the hand then there should not have been heavy damage on the bus whose rear back side near rear wheel not only damaged but scratched. The width of the Wazirabad bridge is about 20 feet. The width of a bus and a truck is usually around 8 feet each. Therefore crossing on such a narrow bridge the heavy vehicles have to pass through and maneuver in the gap of 4 feet. If leaving one feet on each side then only two feet are remaining. With such a less space for maneuvering both the vehicles have to move very slowly. In the deposition of PW6, PW9, PW10 it has clearly come on record that the bus has stopped on one side of the bridge after seeing the truck coming in zig zag manner. Therefore, the bus was seen in stationery position on the bridge and the said fact regarding said fact and 16 FIR NO. 252/97 deposition of witness remains undisputed and uncontroverted. In site plan Ex.PW10/B point C is the place where accident has occurred. The bus is shown to be standing on extreme left side of the road at the time of the accident. The said fact also remains uncontroverted. The time was night time when a truck is passing through a bridge and when there was street lights on the bridge, which also remains uncontroverted, the truck driver with the existence of the lights of his own truck could conveniently see if a hand is hanging outside from the bus. Had he seen it then keeping in view the stationery bus the truck could have stopped to give a warning. The deposition of PW6, PW9 & PW10 is clear with the aspect that the truck was moving in a zig zag manner and only due to which the bus has stopped. PW10 has not seen the hand hanging outside the window of the deceased and his evidence to the same aspect is heresay evidence as he has not stated in his evidence Ex.PW10/A which is his statement before police that the hand of victim was hanging outside. The truck had hit the bus near the place of rear right wheel and as per deposition of PW9 the bus was torn from that place. Therefore the accused driver had hit the bus with the truck with such an impact that the metal sheet of the bus could tear. With such 17 FIR NO. 252/97 impact the passenger sitting inside the bus could suffer an impact of blunt force which can cause death and the same has come under the second ingredient referred above. Had there not sufficient space to go through then the truck should have stopped and then should have managed the situation but in the present case it appears that the truck driver was thinking that he could pass through knowing that he was not able to maintain the mandatory distance required to be maintained between two passing vehicles which is about one metre and inspite of that he came so close to the bus that he could not maintain even a distance of a feet and pass through so much so that he could hit the bus in such a manner that its metal sheet could tear apart. The victim was unaware of the unexpected accident and with such an impact having seat behind his back he suffered impact of such a force which could tear a metal sheet and the force was sufficient to cause death in ordinary course of nature. It has to be seen that whether accused was negligent or not. It is noted that accused has failed to maintain the mandatory distance between two vehicles and he was driving so forcefully and accelerated such that a standing bus could tear apart from its side. A driver knows and has clear visibility that when it is touching any other 18 FIR NO. 252/97 body or vehicle more so is heavy vehicle where the driver is sitting clearly in a position everything happening in his front. Therefore, it was visible to the accused that how much near he was driving the bus and inspite of touching the bus he moved the truck in the same line and scratched through the bus and caused the accident and hit the unaware passenger knowing that the bus is occupied by such passenger and the passenger may suffer such injury in a standing bus. Therefore, accused was criminally negligent having knowledge that he could have killed such unaware passenger and he not keeping the desired distance between the two vehicle and he continued to pass through the bridge. Ld. Counsel for accused has relied on citation 2007 (2) Crimes 58 (SC) title State of M.P. Vs. Bachhu Dass & Others wherein Ld. Counsel for accused has relied on the law that if two views are possible then benefit of the same should be given to the accused. Further Ld. Counsel for accused has relied on the fact that photographs of the position of the vehicle are not taken and therefore as per citation AIR 1973 SC 165 title Nageshwar Vs. State of Maharashtra accused should be given benefit. The non taking of the photograph of the two vehicle at the spot is sufficiently explained by the prosecution that the said bridge was the 19 FIR NO. 252/97 only bridge to communicate between two opposite habituated area from which lot of interstate traffic used to pass and therefore both the vehicles had to be make to stand at different place for administrative convenience and for public good. In such circumstances of the case, I find the accused criminally negligent in his driving. Two views are not possible. Accused is held guilty u/s 279/304A IPC.
(Announced in the open court)
Dated: 2.5.2009 (J.P. NAHAR)
MM:TIS HAZARI
NORTH(01):DELHI
20
FIR NO. 252/97
IN THE COURT OF SH. J.P. NAHAR, METROPOLITAN
MAGISTRATE, DELHI
FIR NO: 252/97
U/S: 279/304A IPC
P.S:Timarpur
State V/s Suresh Kumar
ORDER ON SENTENCE
4.5.2009
Present: Ld. APP Shri Bharat Bhushan for the State Convict in person with Counsel Vide separate judgment, convict Suresh Kumar has been convicted for the commission of offence punishable u/s 279/304A IPC.
Arguments on the point of sentence heard.
Record perused.
Ld. APP has argued that accused is liable to be given maximum punishment for having been found guilty for the offence u/s 279/304A IPC. Ld. APP for the State has referred to citation B. Nagabhushnam Vs. State of Karnataka SCC (5) 2008.
Ld. Counsel for convict has submitted that the convict is not a prior offender and he has a family to maintain. Ld. Counsel for accused has further submitted that a trial has went for 11 years and accused is not involved in any other case. Ld. Counsel for accused has also referred to an citation which is as follows: 21 FIR NO. 252/97
1. 2008 CRI. L.J. 1458 (Delhi High Court) State Vs. Kaptan Singh.
2. 2002 CRI. L.J. 495 State of H.P. Vs. Amar Nath" HIMACHAL PRADESH HIGH COURT Corum : 1 ARUN KUMAR GOEL, J. (Single Bench) It was also urged as an alternative submission on behalf of the respondent that if the Court comes to the conclusion that the respondent is guilty of having committed the offences, keeping in view the time gap he may be extended the benefit of Probation of Offenders Act. This cannot be done in the light of two decisions of the Hon'ble High Court reported in Aitha Chander Rao Vs. State of Andhra Pradesh, 1981 (Supp) SCC 17 and Dalbir Singh Vs. State of Haryana, AIR 2000 SC 1677: (2000 Cri. L.J. 2283).
3. 1997 CRI. L.J. 4353 "Narendra Singh Vs. State of Rajasthan"
RAJASTHAN HIGH COURT Coram : 1. B.J. SHETHNA, J. (Single Bench) - Penal Code (45 of 1860), S. 304A, S.279 - NEGLIGENCE -
Rash and negligent driving - sentence - Concurrent finding that fatal accident caused due to rash and negligent driving by accused - No interference in revision - Mere pendency of case for last 15 years - Cannot be ground to interfere with order of sentence - Accused neither entitled for benefit of probation nor sentence can be reduced.
Further the citation Dalbir Singh Vs. State of Haryana 2000 II AD (S.C.) 507 is perused wherein it is held that while considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobile, one of the prime consideration should be deterrence. A professional driver should not 22 FIR NO. 252/97 take a chance thinking that even if he is convicted he would be dealt leniently by the Court. He must always keep in mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence.
Keeping in view facts and circumstances of the case, convict is sentenced for a fine of Rs.1,000/- , in default he has to serve SI for 60 days u/s 279 IPC and he is sentenced to fine of Rs.5,000/- in default, he has to serve RI for 90 days and a further RI of one year is awarded to accused u/s 304A IPC. Benefit u/s 428 CrPC be given to the convict. Fine of Rs.6,000/- is paid by the accused.
At this stage convict has moved an application u/s 389 CrPC for bail for the period to file appeal. Heard. Bail is granted on P/B and Surety bond of Rs.10,000/- for a period of 30 days from today and convict should surrender before the court by 2 pm on 4.6.2009. Copy of the judgment and order on sentence be given to the accused free of cost. File be consigned to Record Room.
(Announced in the open court)
Dated: 4.5.2009 (J.P. NAHAR)
MM:TIS HAZARI
NORTH(01):DELHI