Delhi District Court
State vs . Parbhu Nath on 23 January, 2013
IN THE COURT OF SH. SUNIL KUMAR, METROPOLITAN
MAGISTRATE, ROHINI DISTRICT COURTS, DELHI
State Vs. Parbhu Nath
FIR No.263/98
PS Jahangirpuri
The date of institution of case: 23.10.1999
The date of reserving the order: 23.01.2013
The date on which Judgment pronounced: 23.01.2013
JUDGMENT
Unique Identification No. : 02401R0071481999 Date of commission of offence : 21.06.1998 Name of the complainant : Sh. Rajesh @ Sonu S/o. Sh. Ram Kumar, R/o. S12, Vishwas Park, Uttam Nagar, Delhi.
Name & address of accused : Parbhu Nath,
S/o Sh. Mohan Lal Rai,
R/o Village Sohai, Shahpur,
PS Baniapuri,District Chhapra
Bihar.
Offence complained of : U/s. 279/337/427 IPC.
Final order : Convicted U/s. 279/337 IPC
& Acquitted U/s. 427 IPC
Date of order : 23.01.2013
BRIEF REASONS FOR DECISION:
1 The story of the prosecution in brief is that on 21.06.1998 at
5.15 pm at Outer Ring Road, Village Bhalswa, Jahangirpuri, Delhi, the accused was found driving the vehicle i..e truck bearing no. DL2031 State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.1/17 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving the vehicle in the said manner, he caused simple/blunt hurt to the complainant Rajesh @ Sonu and also caused damages to the tempo and 215 carats of Pepsi bottles. On the basis of the said allegations, the present FIR was registered at Police Station Jahangirpuri and the accused has been charged with the offences under Section 279/337/427 of Indian Penal Code (hereinafter called as IPC).
2 After investigation, charge sheet was filed against the accused. The copies of charge sheet were supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.) and notice for the offence U/s. 279/337/427 IPC was framed against him, to which, he has pleaded not guilty and claimed trial.
3 In support of its version, the prosecution has examined eight witnesses as mentioned in the list of witnesses.
4 PW1Phool Chand is the public/eye witness in the present case, who has deposed that on 21.06.1998, he was driving the tempo Tata 407 bearing No. RJ23G0590, which was loaded with cold drink by them from Burari. He was driving the tempo and was going to Uttam Nagar via Outer Ring Road alongwith Rajesh and one another helper, who were sitting inside the tempo. At about 5.15 pm, when the tempo reached at Bhalswa Village, Outer Ring Road, suddenly one truck bearing No. DEN 2031 full body being driven by the driver in a rash and negligent manner and when the driver tried to overtook the State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.2/17 tempo from wrong side and while overtaking, the back body of the truck struck on front of their tempo as a result of which, their vehicle turned turtle and the carrots of Pepsi lying inside their tempo also got damaged. He further deposed that Rajesh and another helper sustained injuries in the accident. Thereafter, PCR Van came there and took Rajesh and the helper to the hospital. Local police came to the spot and recorded his statement. The driver/accused after causing the accident managed to run away from the spot alongwith the truck. He further deposed that he cannot identify if the accused present in the court was the same driver, who caused the accident driving truck in rash and negligent manner.
This witness was crossexamined by the ld. APP for the State as he resiled from his earlier statement. During crossexamination, the witness admitted that on 04.08.1998, he identified the accused Parbhu Nath present in the court at PS being the same driver of the offending vehicle. He further admitted that the accused present in the court is the same person, who was driving the truck in a rash and negligent manner and who caused the accident.
During crossexamination by the ld. counsel for the accused, the witness stated that he does not exactly remember the date of accident but it was in June 1998. He also sustained injuries in the accident. First his medical was got conducted and then, police recorded his statement. He admitted that he cannot identify the accused Prabhu Nath.
5 PW2Ct. Rohtash has deposed that on 21.06.1998, on the receipt of DD No. 37B regarding an accident, he alongwith HC Dalbir State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.3/17 Singh had reached at Outer Ring Road, Opposite Village Bhalswa where one tempo No. RJ 23G 0590 was in turtled condition and Pepsi bottles were lying in broken condition. IO left him at the spot and he himself went to Hindu Rao Hospital where he received the MLC of the injured and recorded his statement and came back to the spot. He prepared a rukka Ex. PW2/A and handed over the same to him for registration of the FIR. IO seized the said tempo vide memo Ex. PW2/B. He went to PS for registration of the FIR and came back to the spot with copy of FIR and original rukka and handed over the same to the IO. IO also seized the bottles and carats vide memo Ex. PW2/C. IO recorded his statement.
During crossexamination by the ld. counsel for the accused, the witness stated that IO prepared site plan in his presence after the registration of the FIR. He denied that the site plan was prepared at PS. 6 PW3Rajesh @ Sonu is the complainant/injured in the present case, who has deposed almost on the same lines as deposed by PW1 Phool Chand. He further deposed at the time of accident, the abovementioned truck was being driven by the accused present in the court. He further proved his statement Ex. PW3/A, seizure memo of truck Ex. PW3/B and the personal search memo of the accused Ex. PW3/C. During crossexamination by the ld. counsel for the accused, the witness admitted that the above mentioned tempo was not driven by him. He does not remember the name of the driver of the above mentioned tempo. He denied that the above mentioned tempo could State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.4/17 not be plied in Delhi and that the driver of the above mentioned tempo was driving the vehicle in rash and negligent manner and that the tempo driver overtook the above mentioned truck from wrong side and the accident was caused due to fault of the tempo driver. He further denied that the accident was not caused due to the fault of the accused.
7 PW4Ct. Maharaja Singh has deposed that on 04.08.1998, he was on emergency duty alongwith HC Dalbir Singh/IO. On that day, the accused present in the court was arrested and personally searched vide memos Ex. PW4/A and PW3/C respectively. The DL of the accused was taken into possession vide memo Ex. PW4/B and the truck bearing No. DEL 2031 was also taken into possession vide Ex. PW3/B. During crossexamination by the ld. counsel for the accused, the witness admitted that the accident did not occur in his presence. The accused was arrested at PS when he was produced at PS by the owner of the above mentioned truck.
8 PW5Ct. Devender was the Duty Officer in the present case and has deposed that on 21.06.1998 at about 5.20 pm, he received a PCR call regarding an accident and in this regard, he made the entry in Rojnamcha against DD No. 37B, copy of the same is Mark 'X'. He further deposed that the original Rojnamcha was destroyed vide order No. 1742436 dated 27.03.2006 of the DCP (NW), Delhi, copy of the said order is Mark 'Y'.
State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.5/17 During crossexamination by the ld. counsel for the accused, the witness stated that he cannot tell whether before passing the order by the concerned official any permission was taken from the court for destroying the records.
9 PW6Ram Dhari Jain is the public/eye witness in the present case, who has deposed that in the year 1998, he was indulged in the supply of Pepsi cold drinks in Uttam Nagar in their three wheeler tempo. On 21.06.1998, Rajesh Jain, who his brotherinlaw was going in the tempo to supply the cold drinks to Uttam Nagar. He followed him on his motorcycle and when the tempo and motorcycle reached at GTK Karnal Road, Bypass, in the meanwhile one truck with heavy loaded saria came ahead of the tempo. Both the vehicles were in a speed, the truck suddenly changed the lane and came in front of tempo and struck against the tempo. As a impact of which, the tempo turtled and all the bottles of cold drinks broken down and his brotherinlaw Rajesh sustained injuries in the accident and as he was following him, he immediately made a call at 100 number. Police officials reached there and took Rajesh to the hospital. Police recorded his statement. TATA 407 was taken into police possession vide seizure memo Ex. PW2/B. He handed over the cash memo regarding purchasing of cold drinks from the company to police officials, which was taken into police possession vide seizure memo Ex. PW6/A. When the witness was asked whether he had not seen the accused/truck driver on the day of incident, the witness stated that he had not seen the driver as he was following State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.6/17 the tempo on motorcycle. The truck driver fled away from the spot after causing the accident.
This witness was crossexamined by the ld. APP for State. During crossexamination, the witness admitted that the truck driver was driving his vehicle in a rash and negligent manner and that the registration number of the offending vehicle was DEL 2031. He further admitted that the registration number of tempo TATA 407, in which, Rajesh was sitting with loaded bottles was RJ 23G 0590.
During crossexamination by the ld. counsel for the accused, the witness admitted that the offending vehicle was ahead of TATA 407 bearing registration number of Rajasthan. He denied that the TATA 407 bearing registration number of Rajasthan was not having permission to be used in Delhi. The offending vehicle was of green colour. He denied that the offending vehicle was not having saria. He further stated that no red flag was tagged at the back of the truck. He denied that the driver of the offending vehicle was not driving his vehicle in a rash and negligent manner and that the accident occurred due to the rash and negligent driving of the driver of TATA 407. He cannot tell whether any case was registered against the driver of the offending vehicle prior to the present case.
10 PW7Dr. Roshan Kumar Anand, CMO, Skin Department, Hindu Rao Hospital has deposed that on 21.06.1998, he was on emergency duty in the Casualty. On that day, one injured namely Rajesh was brought to the Casualty with alleged history of RTA. The injured was given first aid by him and in this regard, he prepared MLC No. 76301/98 Ex. PW7/A. He further deposed that the injured State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.7/17 was referred to EMO(S) and EMO(O) fur further evaluation and management.
This witness was not crossexamined on behalf of the accused despite opportunity granted to him.
11 PW8SI Dalbir Singh is the IO of the case and has deposed that on 21.06.1998, the copy of DD No. 37B regarding accident was handed over to him by DO and thereafter, he alongwith Ct. Rohtash went to the spot. There, they found a tempo No. RJ 23G 0590 in turtled condition and the driver of the said tempo namely Phool Chand also met them. The tempo was loaded with the cartons of Pepsi bottles. We came to know that the injured was already shifted to HRH by PCR officials. Ct. Rohtash was left on the spot and he went to HRH from where he collected the MLC of the injured Rajesh. The injured was fit for giving the statement. Therefore, he met with the injured, who narrated the accident, which was recorded by him vide Ex. PW3/A. Thereafter, he returned on the spot where he handed over the rukka Ex. PW8/A to Ct. Rohtash for getting the case registered. He prepared a site plan Ex. PW8/B at the instance of Phool Chand. The photographs of the spot from different angles were got conducted through Photographer vide Ex. P1 To P4. Ct. Rohtash returned with copy of FIR and rukka, which were handed over to him. The above mentioned tempo was taken into possession vide memo Ex.PW2/B. The broken bottles of Pepsi as sample were taken into possession vide memo Ex. PW2/C. The above mentioned vehicle was deposited in the Malkhana. On the next day, the mechanical State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.8/17 inspection of the above mentioned tempo was got conducted vide his request Ex. PW8/B'. He further deposed that as the accident was caused by a truck No. DEL 2031, the ownership regarding the said vehicle was got verified through Transport Authority. After having known the name and address of the owner, notice u/s. 133 MV Act was served upon the owner Sh. Tarlochan Singh and upon the owner of above mentioned tempo vide notices Ex. PW8/C and PW8/D. On 04.08.1998, Sh. Tarlochan Singh in pursuance of notice produced the driver of the said truck i.e. the accused present in the court and the above mentioned truck. The truck was taken into possession vide memo Ex. PW3/B. The DL of the accused was taken into possession vide memo Ex. PW4/B. The accused was arrested and personally searched vide memos Ex. PW4/A and PW3/C respectively. The accused was released on bail and the truck was deposited in the Malkhana. The mechanical inspection of the truck was also got conducted vide his request Ex. PW8/E. The mechanical inspection were conducted by Sh. Shyam Lal Chhabra vide his reports Ex. PW8/F and PW8/F1. The reports were prepared in his presence by Sh.Shyam Lal Chhabra. The cash memo pertaining to Pepsi bottles was also taken into possession vide memo Ex. PW6/A. The MLC was deposited with hospital for obtaining the opinion about the nature of injury. The vehicles were released on superdari as per the order of the Hon'ble Court vide superdarinama Ex. PW8/G and PW8/H respectively. I recorded the statement of witnesses and prepared the charge sheet under the supervision of the SHO.
During crossexamination by the ld. counsel for the accused, the witness stated that he did not record the statement of State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.9/17 Sh.Tarlochan Singh u/s. 161 Cr.P.C. regarding the serving of notice u/s. 133 MV Act. He denied that he did not serve any notice u/s. 133 MV Act upon Sh. Tarlochan Singh. He took into possession the DL of Sh. Phool Chand. When the witness was asked to go through the file to point out the said DL, on perusal of the file, the witness stated that there is no such DL. He denied that Phool Chand was not having DL at that time and that the accident was caused by Phool Chand. He did not record any statement of the injured after his discharge from hospital. He recorded the statement of one independent eye witness namely Ram Dhari on the spot. He denied that no person in the name of Ramdhari met with him and that he recorded his statement at PS. The witness sought permission to go through the police file and on perusal of the file, witness pointed the statement of Sh. Tarlochan Singh which was recorded on 04.08.1998, the copy of which is not available with the judicial file. He denied that he did not record the statement of Sh. Tarlochan Singh at any time and that he did not conduct fair investigation in the present case. Thereafter, PE was closed.
12 Subsequent to the recording of statement of witnesses, the statement of accused under Section 313 Cr.P.C. was recorded and all the incriminating evidence coming on record was put to the accused in which he has submitted that he has been falsely implicated in the present case. He has further submitted that he does not want to lead defense evidence.
13 I have heard the arguments advanced by Ld. APP for the State as State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.10/17 well as Ld. counsel for the accused and perused the record.
14 In the present matter, the accused has been charged for the offences punishable under Section 279/337/427 IPC. To prove a case U/s. 279/337/427 IPC against the accused, the prosecution has to prove the following facts:
a). that the accused was driving the offending vehicle in a rash and negligent manner.
b). that while driving the said vehicle in the aforesaid manner, the accused caused simple/blunt injuries on the person of the complainant and also caused damages to the tempo and 215 carats of Pepsi bottles loaded in the said tempo.
15 The word rash and negligent has not been defined in IPC or Cr.P.C. They have to be gathered from the facts and circumstances of each case and have to be interpreted and appreciated from the evidence, which has come on record as rash or negligent is always a subjective concept and depends upon facts and circumstances of each case. From the various judgments as has been discussed by the passage of time, the word rash and negligent has been interpreted as under: "Rash or negligent Act Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.11/17 risk of doing such an act with recklessness or indifference as to the consequences.
Criminal negligence 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 imperative duty of the accused person to have adopted.
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precaution to prevent their happening. The imputability arises from acting despite the consciousness (luxuria). Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that, if he had, he would have had the consciousness. The imputability arises from neglect of the civic duty of circumspection. It is manifest that personal injury, consciously and intentionally caused, cannot fall within either of these categories, which are wholly inapplicable to the case of an act or series of acts."
16 Now coming to the present case, the testimony of PW3 Rajesh @ Sonu/the complainant, PW2 Phool Chand/eye witness and PW6 Ram Dhari Jain/another eye witness are material one. As far as the testimony of PW3 Rajesh @ Sonu/complainant, he has deposed in his State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.12/17 examinationinchief that on 21.06.1998 at about 5.00 pm, he was going towards Uttam Nagar from Burari on tempo No. RJ 23G 0590 and when he reached at Outer Ring Road, Near Bhalswa Village, the truck No. DEL 2031 came there with fast speed and in rash and negligent manner and overtook his vehicle from wrong side. Due to which, the rear portion of the truck struck against the front portion of his above mentioned tempo due to which, the tempo run over the pavement and due to the imbalance, same turned turtle and due to which, the loaded Pepsi bottled were broken down. He also sustained injuries on his person. At the time of accident, the abovementioned truck was being driven by the accused present in the court.
As per testimony of PW1 Phool Chand, public/eye witness, he has deposed that on 21.06.1998, he was driving the tempo Tata 407 bearing No. RJ23G0590, which was loaded with cold drink by them from Burari. He was driving the tempo and was going to Uttam Nagar via Outer Ring Road alongwith Rajesh and one another helper, who were sitting inside the tempo. At about 5.15 pm, when the tempo reached at Bhalswa Village, Outer Ring Road, suddenly one truck bearing No. DEN 2031 full body being driven by the driver in a rash and negligent manner and when the driver tried to overtook the tempo from wrong side and while overtaking, the back body of the truck struck on front of their tempo as a result of which, their vehicle turned turtle and the carrots of Pepsi lying inside their tempo also got damaged. He further deposed that Rajesh and another helper sustained injuries in the accident. Though in the examinationinchief, the witness stated that he cannot identify the accused present in the court was the same driver, who caused the accident while driving the State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.13/17 truck in rash and negligent manner but during crossexamination by the ld. APP for State, the witness admitted that on 04.08.1998, he identified the accused present in the court at PS as being the same driver of the offending vehicle, who was driving the truck in a rash and negligent manner and who caused the accident. Again, in the crossexamination by the ld. counsel for the accused, the witness admitted that he cannot identify the accused.
As per testimony of PW6 Ram Dhari Jain, he has deposed that in the year 1998, he was indulged in the supply of Pepsi cold drinks in Uttam Nagar in their three wheeler tempo. On 21.06.1998, Rajesh Jain, who his brotherinlaw was going in the tempo to supply the cold drinks to Uttam Nagar. He followed him on his motorcycle and when the tempo and motorcycle reached at GTK Karnal Road, Bypass, in the meanwhile one truck with heavy loaded saria came ahead of the tempo. Both the vehicles were in a speed, the truck suddenly changed the lane and came in front of tempo and struck against the tempo. As a impact of which, the tempo turtled and all the bottles of cold drinks broken down and his brotherinlaw Rajesh sustained injuries in the accident. Though this witness stated that he had not seen the driver as he was following the tempo on motorcycle but admitted that the truck driver was driving his vehicle in a rash and negligent manner.
17 From the perusal of the testimonies of above stated witnesses i.e. PW3 Rajesh @ Sonu, who is the injured/complaint, it is established that the accused was driving the vehicle on the day of accident in a rash and negligent manner and from the testimonies of the witnesses PW1 Phool Chand and PW6 Ram Dhari Jain, it is very State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.14/17 well established that the driver of the offending vehicle was driving the offending vehicle in a rash and negligent manner. It is also proved by PW7Dr. Roshan Kumar, who examined the injured Rajesh vide MLC No. 76301/98 Ex. PW7/A that the injuries received by the injured Rajesh were caused by blunt object. He further proved that he examined the injured on 21.06.1998 i.e. on the day of alleged incident. Therefore, it is again established that the injured Rajesh received injuries on the alleged day of incident.
18 All the witnesses examined by the prosecution are supporting the case of the prosecution and their statement on record are found to be cogent, inspires the confidence of the court and there is no reason to disbelieve the same and they are all corroborating each other on material aspects and there is no inconsistency contradictions in their statement. Hence, in view of the submissions made above and after scanning the entire record, I have no hesitation to hold that the prosecution has successfully able to prove the guilt of the accused, for which the accused has been charged u/s. 279/337 IPC.
19 As far as the offence punishable u/s. 427 IPC is concerned, both the Sections 425 and 427 IPC have to read simultaneously as it is clearly defined in the Indian Penal Code that u/s. 427 IPC "whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both". The elements necessary for constituting mischief are defined u/s. 425 IPC, which is as follows : State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.15/17
(a) The accused must have caused the destruction of some property or some change in it or its situation;
(b) Such change must have destroyed or diminished the value or utility of the property or affected it injuriously;
(c) Destruction or change in the property or situation thereof must have been done with the intention of causing or with the knowledge that it is likely to cause wrongful loss or damage to the public or to any person.
In the present case, the mischief that has been provided u/s. 427 IPC has not been proved as the accused caused the accident due to his rash and negligent driving due to which the accident took place and the offending vehicle struck against the said tempo and caused damage to the loaded carats of Pepsi bottles. There is also no evidence on record to show the intention of the accused to cause damage to the said articles. Therefore, it is clearly established that the accused did not cause damages to the loaded Pepsi bottles in the said tempo intentionally or knowing that he is likely to cause damages. Hence, the prosecution has failed to prove the guilt of the accused for the offence punishable u/s. 427 IPC.
20 Accordingly, the accused is convicted for the offences punishable under Section 279/337 IPC and acquitted for the offence punishable u/s. 427 IPC.
Announced and dictated in the open court today i.e. on 23.01.2013 State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.16/17 (SUNIL KUMAR) MM/ROHINI COURTS:DELHI State vs. Parbhu Nath, FIR No.263/98, PS Jahangirpuri Page no.17/17