Delhi District Court
State vs . Subhash Chand on 1 February, 2019
IN THE COURT OF SHRI SUMEET ANAND
METROPOLITAN MAGISTRATE-07, PATIALA HOUSE COURTS
NEW DELHI DISTRICT: NEW DELHI
FIR No. : 319/2008
Cr C No. : 43622/16
PS : Tilak Marg
U/s : 279/304-A IPC
State Vs. Subhash Chand
JUDGMENT
A Case Identification 43622/16
Number
B Name of the Ct. Umesh Kumar, P.S. Tilak Marg.
Complainant No. 665/ND
C Name of the accused Subhash Chand, S/o Sukhbir
& his parentage and Singh, R/o 615/5 Gali no. 1 Ashok
address Nagar, Delhi.
Permanent Address;
Village & PS Chhaprauli, District
Baghpat, Uttar Pradesh.
D Offence complained of 279/304-A IPC
E Date of commission of 06.10.2018
offence
F Date of Institution 29.04.2009
G Offence Charged 279 & 304-A IPC
H Plea of accused Pleaded not guilty
I Order Reserved on 29.01.2019
J Date of 01.02.2019
Pronouncement
K Final Order Conviction
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE FIR No. 319/2008, PS Tilak Marg State Vs. Subhash Chand 1/10
1. Prosecution alleges that on 06.10.2008 at about 11:00 AM at 'C' Hexagon Tilak Marg, T-Point accused Subhash Chand was driving the offending vehicle i.e. a Bus, bearing registration No. DL 1 PA- 6384 plying on Route No. 335, in a rash and negligent manner so as to endanger human life and personal safety of others.
2. Prosecution also alleges that as a result of such driving of the offending vehicle by the accused, particularly when he turned the offending vehicle, while driving it in the abovesaid manner, the deceased, who was travelling in the offending vehicle fell out from it and the rear tyre of the offending vehicle ran over the deceased resulting in his death not amounting to culpable homicide.
3. The case was registered on the statement of Const. Umesh Kumar, who is, according to the prosecution an eye witness of the incident / accident. Upon completion of the investigation, final report in the form of charge sheet under section 173(2) Cr.P.C. for the offences under section 279 and 304A IPC was forwarded to the Court against the accused Subhash Chand for trial.
4. After taking cognizance of the offence by the court the accused was summoned and after compliance of section 207 Cr.P.C a formal notice of accusation under section 251 Cr.P.C for offences under section 279 & 304-A IPC was served upon the accused, to which he pleaded not guilty and claimed trial. Accordingly, thereafter the matter was posted for Prosecution Evidence.
5. The prosecution has examined 10 witnesses. Except for PW-2 (Const. Umesh Kumar) all other witnesses are either police FIR No. 319/2008, PS Tilak Marg State Vs. Subhash Chand 2/10 witnesses, or are formal witnesses.
6. The prosecution has also relied upon documents, such as the arrest memo, Post-Mortem report of the deceased, Superdari Nama, Site plan etc. all such documents, as duly enumerated in the testimony of PW-4 are on record.
7. After prosecution evidence, the statement of accused was recorded u/s 313 Cr.P.C wherein all incriminating evidences led against him during the trial by the prosecution witnesses were put to him, affording him an opportunity to give his explanation, if any.
8. In his statement recorded u/s 313 Cr.P.C., the claimed to be innocent and alleged false implication and stated that he had taken all the precautions while driving the offending vehicle and the accident had occurred due to the negligence of the deceased.
9. Despite opportunity, the accused preferred not to lead any defence evidence. Accordingly, the matter was posted for final arguments. Accused filed his arguments also in writing, the same are part of record. Despite opportunity no arguments were advanced on behalf of the state, accordingly right of the state to address final arguments was closed and the matter was posted for judgment.
10. I have carefully appreciated the evidence lead by the prosecution and have taken into account the written arguments filed on behalf of the accused. I have also carefully perused the judicial record.
11. In order to prove the offences punishable U/s 279 and 304A IPC, the prosecution has to prove beyond all reasonable doubts, the following FIR No. 319/2008, PS Tilak Marg State Vs. Subhash Chand 3/10 mandatory ingredients; viz,
i) The rash or negligent act / driving which is likely to cause hurt or injury to any other person; and
ii) the said rash or negligent act / driving of the accused was the proximate cause of death of victim.
12. The Hon'ble Supreme Court in Rathnashalvan v. State of Karnataka AIR 2007 SC 1064 while dealing with a case u/s 304A IPC observed :
7. ...Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors.
A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. 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.(underlining added)'
8. As noted above, "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 neglect or failure to exercise that reasonable and proper care 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 FIR No. 319/2008, PS Tilak Marg State Vs. Subhash Chand 4/10 imperative duty of the accused person to have adopted.
13. PW-1 (Const. Umesh Kumar) who is, according to the prosecution, the eye witness of the incident / accident has deposed in his tesatimony that, "on 16.10.2008, I was posted as Constable at P.S. Tilak marg. On that day, I was on Beat duty at Patiala House Courts. On that day at about 11:30 a.m. and I was going from gate No. 2 to gate no. 1 and reached at T-point Tilak Marg one bus bearing no. DL-1PA-6384 plying on route no. 335 came in a very high speed and turned suddenly due to which one passenger had fallen from the bus. I shouted a lot to stop the bus, meanwhile the person who had fallen from the bus had come under the rear tyre of the bus. Bus had stopped there. Thereafter, the driver of the bus had come down from the bus and I had taken the driving license and badge number. I inquired his name. he told as Subhash Chand, S/o Sukhbir Singh. XXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXXX"
14. The eye witness PW-2 (Const. Umesh), during his evidence, has correctly identified the accused Subhash Chand as the driver of the offending vehicle. Moreover, it is worth mentioning herein that the identity of the offending vehicle is not disputed by the accused.
15. Furthermore, a statement made by the accused, in an answer to a question put to him while recording his statement under section 313 Cr.P.C, wherein he stated that, "I am innocent and have been falsely implicated in this case. I have taken proper precautions. The accident caused due to negligence of deceased " and taking into FIR No. 319/2008, PS Tilak Marg State Vs. Subhash Chand 5/10 account the various suggestions put by the counsel for accused in cross-examination to the prosecution witness, whereby it was suggested that the deceased was trying to alight from a moving bus etc., in the opinion of this court, sufficiently go on to prove that the deceased was indeed travelling in the offending vehicle and the cause of death his death is due to the accident as alleged by the prosecution, i.e. due to falling from the moving bus.
16. The above noted statement of the accused, as recorded under section 313 Cr.P.C. and taking into account the various suggestions put by counsel for the accused in cross-examination to the prosecution witnesses, which go on to suggest that the accused admits the factual position to the extent that the deceased had fallen from a moving bus, go on to suggest that PW-2 (Const. Umesh) is indeed an eye witness of the alleged incident / accident.
17. Furthermore, there is no occasion for this court to even look the testimony of PW-2 (Const. Umesh) with any iota of doubt because the entire testimony of PW-2 has gone unrebutted / uncontroverted and hence stands proved.
18. Despite opportunity, for the true and correct reasons known to the accused, he did not cross-examine the star witness / eye witness. No attempt was made by the accused, either before the trial court, or before superior courts to recall PW-2. Hence all the averments made by PW-2 (Const. Umesh) insofar as they are consistent with other duly proved facts and circumstances of this case have to be taken to be true and correct.
19. According to PW-2 (Const. Umesh) the deceased had fallen out of FIR No. 319/2008, PS Tilak Marg State Vs. Subhash Chand 6/10 the moving bus because the driver of the offending vehicle took a turn at a very high speed leading to throwing out of the deceased, who was travelling in the bus.
20. This very statement of PW-2 (Const. Umesh) suggests that while the offending vehicle, i.e. a Bus was moving its doors were open. It also suggests that while the Bus was moving the deceased was standing dangerously close to the opened door.
21. It is the settled principle of criminal law that in cases of accidental deaths the concept of negligence of deceased, if any is insignificant. The court has to restrict its findings only to the aspect that whether the driver of the offending vehicle acted in Criminally Rash or Negligent manner while driving the offending vehicle which lead to the death of the deceased.
22. In the opinion of this court, the bigger the motor vehicle is the more onerous becomes the responsibility of its driver to take all necessary precautions to ensure the safety and well being of all the persons travelling in it.
23. At the outset, in the opinion of this court, it was the duty of the driver of the offending vehicle to ensure that the doors of the vehicle were securely closed while the vehicle was in motion, or even if the doors are not closed, then no person is standing so dangerously close to the door which conceives an occasion for any unfortunate mishap, like the one is alleged to have occurred in this case.
24. While the door of the offending vehicle was not firmly secured and while a person was standing dangerously close to an open door of the vehicle, the moment the driver of such offending vehicle moved it FIR No. 319/2008, PS Tilak Marg State Vs. Subhash Chand 7/10 even an inch he will be said not only to be driving the Vehicle Rashly, but also Negligently.
25. The driver of a Bus is expected to ensure that while such a big and heavy vehicle is moving, the persons travelling in it are seated and if they are not seated then atleast they are sufficiently away from the doors of the vehicle, which are so huge that simultaneously two well built men can enter it together. And, where the driver of bus fails to discharge this duty and drives the Bus without caring that a person is standing dangerously close to the door, the driver is acting Rashly and negligently.
26. The defence has vehemently argued that the prosecutions case is doubtful because no independent witness has joined the investigation and no person plying in the offending vehicle at the time of the accident has been examined.
27. In the opinion of this court, PW-2 (Cont. Umesh) is not to be taken as a police witness in this case. He is a chance witness who has seen the entire incident / accident. Moreover, his testimony has gone unrebutted. Moreover, the defence has not shown any reason / motive for Pw-2 (Const. Umesh) to falsely implicate the accused. Moreover, it has already been noted that the version stated by PW-2 coroborated with the line of defence crafted by the accused and hence this factor makes PW-2 a reliable witness.
28. It is the settled proposition of law that it is the quality, but not the quantity, of the evidence which has to be appreciated during the trial. Where the prosecution had the testimony of PW-2 (Const. Umesh) which fully supported it, the absence of any other independent FIR No. 319/2008, PS Tilak Marg State Vs. Subhash Chand 8/10 witness does not make any difference. Moreover, the testimony of an eye witness to an incident cannot be rejected or looked with suspicion because the eye witness also happens to be a police official. To cast a doubt about the testimony of an eye witness, the defence has to lead cogent evidences, or shake the credit of the witness by way of effective cross-examination. However, the defence has failed to do either of this qua PW-2 (Cont. Umesh).
29. Even if the version of defence is taken to be true entirely that the deceased had to alight at Patiala House Courts, but he missed the Stop and that he tried to alight from the moving bus and therefore he fell down and unfortunately died. Even then, as noted above, in the opinion of this court, the moment the deceased came close to the door of the moving bus, the driver of the offending vehicle ought to have stopped the bus instead of keeping it moving. If it is the case of the driver of the offending bus that he was not aware that a passenger has come dangerously close to the opened door of a moving bus then this itself is a clear case of negligence.
30. Based on the above done discussion, this court is of the opinion that the death of the deceased is a direct consequence of Rashness and negligence on part of the driver of the offending vehicle as he failed to ensure that the doors of the bus, while it is in motion are closed. Because he failed to ensure that the deceased is duly seated and not standing dangerously close to the open door of the vehicle while it is in motion. Because if the deceased, while the bus was in motion, came close to the open door, the driver failed to notice it and failed to stop the bus at once to prevent the deceased from alighting from a moving vehicle.
FIR No. 319/2008, PS Tilak Marg State Vs. Subhash Chand 9/10
31. Accordingly, based on the uncorroborated and unrebutted testimony of PW-2 (Const. Umesh) the prosecution has duly proved the guilt of accused Subhash Chand beyond all reasonable doubts. Hence, accused Subhash Chand is convicted for offence under section 279 Digitally signed IPC and 304-A IPC. by SUMEET SUMEET ANAND ANAND Date:
2019.02.06 15:18:17 +0530 Announced in the Open (SUMEET ANAND) Court on 01/02/2019 MM-07/PHC/New Delhi FIR No. 319/2008, PS Tilak Marg State Vs. Subhash Chand 10/10