Delhi District Court
Sh. Dhanpat vs The State on 28 February, 2024
Criminal Appeal No. 105/2023
Dhanpat Vs State
IN THE COURT OF SH. DEVENDER KUMAR JANGALA,
ADDITIONAL SESSIONS JUDGE-05, NEW DELHI DISTRICT.
DLND010047632023
Criminal Appeal No. 105/2023
Dhanpat Vs State
FIR no. 64/07, PS Delhi Cantt.
Under Section 279/338/304A IPC
Sh. Dhanpat
S/o Sh. Bhajan Lal
R/o Village Bhengai,
Tehsil Tauru, Distt. Gurugram
Haryana ..........Appellant
VERSUS
State
(Govt. of NCT of Delhi) .........Respondent
Date of institution: 22.05.2023
Date of arguments: 12.02.2024
Date of judgment: 28.02.2024
Presence: Sh. Vishal Vimal and Sh. Vijender Kumar, Advocates
on behalf of appellant.
Sh. Mukul Kumar, Ld. Add. PP for the state/
respondent.
JUDGMENT
28.02.2024
1. This is an appeal under section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.PC) filed by appellant/convict praying for setting aside the impugned Judgment dated 20.02.2023 and order on sentence dated 18.04.2023 passed by Sh. Yashdeep Chahal, Ld. Metropolitan Magistrate-01, New Delhi District, Patiala House Courts, New Delhi (hereinafter referred as Ld. Page no.1 of total 12 Criminal Appeal No. 105/2023 Dhanpat Vs State MM) in case FIR No. 64/2007 titled as State Versus Dhanpat, under section 279/338/304-A IPC, PS Delhi Cantt. The Ld. Trial Court has convicted the appellant and directed him to undergo simple imprisonment for a period of three months for commission of offence punishable under section 279 IPC, simple imprisonment for a period of six months for offences punishable under 338 IPC and for a period of six months for commission of offence punishable under section 304-A IPC alongwith fine of Rs.5000/- and on failure to pay fine to undergo simple imprisonment for two months.
2. Arguments on the present appeal advanced by Sh. Vishal Vimal, Ld. Counsel for appellant and Sh. Mukul Kumar, Ld. Additional PP for the state already heard. Record perused.
3. Brief facts:- It is alleged that on 02.03.2007 at about 10.50pm, complainant who was working as Constable in ITBP alongwith his friend Mukim was going towards his home at Najafgarh on his motorcycle bearing number DL-8S-AG-2660 which was being driven by his friend Mukim. It is alleged that at about 10.50pm when they reached on the Gurgaon Road near RTR Parade Road, Delhi Cantonment, Delhi, the appellant/accused came there, driving his truck bearing number HR55-F-2066 from backside, in a manner so rash and negligent as likely to cause hurt or injury to any person and while doing so, he hit the motorcycle of the complainant from backside. That as a result of above act both riders came underneath the truck. Sh. Mukim Khan rider of the motorcycle died in the accident and Sh. Vivek Dixit another rider suffered grievous injury. On the statement of the complainant/injured namely Vivek Dixit, the Page no.2 of total 12 Criminal Appeal No. 105/2023 Dhanpat Vs State FIR No. 64/2007, U/s 279/338/304A IPC, PS Delhi Cantt. has been registered.
4. After registration of FIR, the matter was investigated. The police after completion of investigation filed the charge-sheet for commission of offence punishable under section 279/338/304-A IPC. Thereafter, the accused was summoned to face the trial and after completion of trial, the Ld. Trial Court has convicted the appellant Dhanpat vide judgment dated 20.02.2023 and sentenced him to undergo simple imprisonment for a period of three months for commission of offence punishable under Section 279 IPC, for a period of six months for the commission of offence punishable under section 338 IPC and for a period of six months for commission of offence punishable under section 304-A IPC alongwith fine of Rs.5000/-. The appellant/convict being aggrieved by the judgment of conviction and order on sentence passed by Ld. Trial Court has filed the present appeal.
5. In the appeal it is stated that impugned order is liable to be set-aside as the same is contrary to the law as well as facts of the present case. That the Ld. Trial Court has misconstrued and misinterpreted the evidence and documents on record. That Ld. Trial Court has fails to consider that PW-3 has stated that there was no eye- witness found at the spot. That the Ld. Trial Court has fails to consider that PW-5 had deposed that he could not judge the exact speed as the truck hit the motorcycle from its back side. That PW-5 could not disclose the name of any witness. That PW-11 SI Tiku Ram (Retired) has also admitted that there was no eye-witness found at the spot. That Page no.3 of total 12 Criminal Appeal No. 105/2023 Dhanpat Vs State Ld. Trial Court has fails to consider that the appellant was driving his dumper at the speed of 20-22 KM per hour and motorcyclist was trying to overtake the dumper from the conductor side. That since the motorcycle was at the high speed, it struck against a car and due to the impact, the riders came under the wheel of vehicle of the appellant. That Ld. Trial Court has fails to consider that the deceased was himself negligent in riding his motorcycle. That Ld. Trial Court has fails to consider the fact that there was no parameter to observe the speed as the witness had not stated the speed. That Ld. Trial Court has wrongly taken into consideration the authorities quoted in the judgment whereas the facts and circumstances of those cases are different and does not apply in the present case. That impugned order is liable to be set aside as the same is based on conjectures and surmises. It is stated by ld. Counsel for the appellant/convict that in view of grounds of appeal the impugned judgment and order on the point of sentence is liable to be set aside.
6. The notice of the present appeal was issued to the respondent i.e. State which was accepted by Ld. Additional PP for the state. It is submitted by Ld. Additional PP for the state that there is no illegality or infirmity in the judgment and order on sentence passed by Ld. Trial Court. That Ld. Trial Court has passed the impugned judgment and order on sentence on the basis of testimony of the witnesses and material on record. Therefore, it is prayed that appeal may kindly be dismissed.
7. In the present appeal one of the contention raised by the appellant is that PW-3 HC Prahlad Singh and PW-11 Retired SI Tiku Page no.4 of total 12 Criminal Appeal No. 105/2023 Dhanpat Vs State Ram have deposed that there was no eyewitness found at the spot in respect of the alleged accident, therefore, the eyewitness has been planted in the present case. In view of contention raised by Ld.counsel for the appellant, the testimony of PW-3 HC Prahlad Singh and PW- 11 Retired SI Tiku Ram is required to be perused. It is true that PW-3 HC Prahlad Singh and PW-11 Retired SI Tiku Ram had reached at the spot on receipt of information regarding the accident. It is true that PW-3 HC Prahlad Singh and PW-11 Retired SI Tiku Ram have deposed that no eyewitness was present at the spot. However, PW-3 HC Prahlad Singh and PW-11 Retired SI Tiku Ram have further deposed that on inquiry it was revealed that injured were sent to Safdarjung Hospital. It is well settled law that the testimony of a witness can not be read in isolation and entire testimony is to be read together to arrive at some conclusion. PW-3 HC Prahlad Singh and PW-11 Retired SI Tiku Ram have deposed that no eyewitness was present at the spot at the time of their visit but at the same time they have explained that the injured were shifted to hospital before their arrival. It is an admitted case that PW-3 HC Prahlad Singh and PW-11 Retired SI Tiku Ram had reached at the spot after receipt of information of accident. This fact itself establishes that PW-3 HC Prahlad Singh and PW-11 Retired SI Tiku Ram are not the eyewitnesses of the accident, therefore non availability of the eyewitness at the time of their visit at the spot is not creating any shadow of doubt upon the story of prosecution.
8. Ld.counsel for the appellant has also raised the contention that PW-5 Vivek Dixit has stated that after the accident truck was stopped and the driver came out of truck. It is also Page no.5 of total 12 Criminal Appeal No. 105/2023 Dhanpat Vs State contended that PW-5 Vivek Dixit has admitted that that he could not judge the exact speed of the truck as the truck had hit the motorcycle from backside. It was also contended that PW-5 has also admitted that he is not aware whether there was any eye-witness of the incident or not.
9. PW-5 Vivek Dixit is the injured eyewitness of the incident. The story of the prosecution is based upon the deposition of PW-5 Vivek Dixit who had witnessed the accident and received the injuries. The testimony of the injured witness carries more weight then any other witness. The injuries suffered by the injured witness can not be faked. Hence his deposition carries greater weightage. On this issue I have placed reliance upon one latest judgment of Hon'ble Supreme Court in Balu Sudam Khalde and Another Versus State of Maharashtra, 2023 SCC Online SC 355 wherein Hon'ble Apex Court was pleased to held as under:
" When the evidence of an injured eye-witness is to be appreciated, the under- noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
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(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded".
10. In view of judgment of Hon'ble Supreme Court in case Balu Sudam(supra) it is clear that the presence of the injured witness at the time and spot of accident can not be doubted as no material contradiction has emerged in his cross-examination. It is also true that the accused could not point out any material to show why the injured witness would allow the real culprit to escape and falsely implicate the appellant/convict. In view of above, there is no reason to discard or disbelieve the deposition of PW-5 Vivek Dixit who is injured eyewitness of the accident.
11. It is also contended that PW-5 Vivek Dixit could not judge the exact speed of the truck as the truck had hit the motorcycle from backside. PW-5 Vivek Dixit during cross-examination has deposed that the truck was at the speed of 60-80 km/hour. It is matter of common knowledge that a person with naked eyes can not assess the exact speed of a running vehicle. Therefore the inability of PW-5 Vivek Dixit to depose the exact speed of vehicle is not creating any doubt on his deposition. The statement of the eyewitness/PW-5 with regard to the fact that he can not tell whether any witness was present at the spot or not, is also not helpful to the accused as the said witness himself is the injured eyewitness.
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12. It is also contended that PW-5 Vivek Dixit is related to the deceased, therefore, the testimony of related/interest witness should be discarded. On this issue, I have relied upon one latest judgment of Hon'ble Supreme Court in case titled as Rajesh Yadav and Another Versus State of Uttar Pradesh, (2022) 12 SCC 200 wherein the Hon'ble Supreme Court was pleased to held as under:
"A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose.
When the court is convinced with the quality of the evidence produced, notwithstanding the classification as quoted above, it becomes the best evidence. Such testimony being natural, adding to the degree of probability, the court has to make reliance upon it in proving a fact".
13. The Hon'ble Supreme Court in case Rajesh Kumar(supra) has already clarified that a related witness cannot be termed as an interested witness per se. The presence of PW-5 Vivek Dixit is established by the prosecution as this witness has also received injuries in the alleged accident. Therefore, there is no reason to discard the testimony of PW-5 Vivek Dixit. The contention raised by Ld.counsel for the appellant in this regard is not tenable in the eyes of law.
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14. The story of the prosecution is supported by PW-5 Vivek Dixit who is the injured eyewitness of the incident and has received injuries in the said incident. The testimony of PW-5 Vivek Dixit is corroborated with his MLC Ex. M2 which clearly shows that he was taken to Safdarjung Hospital immediately after the accident with the alleged history of Road Traffic Accident(RTA). The nature of injuries received by the deceased are not disputed. The cause of death of deceased due to blunt force impact in RTA is also not disputed, which has been proved by the testimony of PW-8 Dr. Yogesh Tyagi. The testimony of injured witness is corroborated with the other witnesses who had joined the investigation. The story of prosecution is also duly supported by PW-5 Vivek Dixit which is further corroborated with the medical and other technical evidence and the police officials who were part of investigation. The defence could not point out any material contradiction or discrepancy in the deposition of prosecution witnesses to raise any shadow of doubt upon their deposition. The testimony of PW-5 Vivek Dixit is clear, cogent and he has withstood the rigour of cross-examination, therefore, the same becomes of sterling quality.
15. In the present case the defence raised by the accused in his statement under Section 313 Cr. PC is also relevant to be considered. The appellant/convict in his statement under section 313 Cr.PC has not disputed the fact of the accident or the fact of truck bearing number HR55-F-2066 being driven by him at the time of incident. The accused in his statement under section 313 Cr.PC has merely pleaded the absence of rash and negligent driving. It is not out of place to mention that appellant/convict despite having opportunity Page no.9 of total 12 Criminal Appeal No. 105/2023 Dhanpat Vs State has fails to establish negligence of the injured/eye-witness/deceased in support of the defense raised in the statement under section 313 Cr.PC. It is well settled law that the accused has to prove his defense by bringing some material on record. A bald submission under section 313 Cr.PC without producing any material on record is not helpful to the accused.
16. It is also contended that the appellant has stated that he was driving dumper at the speed 20-22km/phs and the motorcyclist in order to overtake dumper, struck against a car and due to the impact, came under the wheel of the vehicle of the appellant. The accused except making the bald submission under section 313 Cr.PC has not produced on record any material to support his defense. In the absence of any defense, the submission made by appellant/convict in statement under section 313 Cr.PC is not tenable in the eyes of law.
17. In view of the above discussions, it is clear that Ld. Trial Court has passed the impugned judgment based upon the ocular testimonies of witnesses and other material evidence. There is no illegality or infirmity in the judgment of conviction dated 20.02.2023 passed by Ld. Trial Court. Therefore, the present appeal under Section 374 against the judgment dated 20.02.2023 passed by Sh. Yashdeep Chahal, Ld. MM, New Delhi District, Patiala House Courts, New Delhi in case FIR No. 64/2007 titled as State Vs Dhanpat, under section 279/338/304-A IPC, PS Delhi Cantt is dismissed that the judgment passed by Ld. Trial court is upheld.
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18. In the present appeal, the appellant has also challanged the order on the point of sentence dated 18.04.2023. It is argued that the appellant is a poor person having responsibility of two minor children and if he is sentenced to imprisonment, the family of the appellant would come at the stage of starvation. That the appellant is not a previously convict and therefore, it is prayed that a lenient view may kindly be taken and the appellant may kindly be granted benefit of benevolent provision of Section 4 of Probation of Offenders Act.
19. The perusal of order on sentence reveals that the Ld. Trial court while awarding sentence to the appellant has considered the fact of rise in road accidents in India, victims and their families facing devastating consequences due to the death of innocent victims of acts of sheer rashness and negligence while relying upon the judgment of Hon'ble Supreme Court in case Dalbir Singh Vs. State of Haryana, 2000(5) SCC 82 and declined benefit of benevolent provision under Section 4 of Probation of Offenders Act. I am in agreement with the observation made by Ld. Trial Court that the convict being a professional driver of commercial vehicle i.e. 'truck' is not entitled to benefit of Probation of Offenders Act. The Ld. Trial Court has already taken a lenient view regarding sentence therefore, no further interference is required. There is no illegality in the order of sentence passed by the Ld. Trial Court. Therefore, the order dated 18.04.2023 passed by Ld. Trial Court on the point of sentence is also upheld and the appellant is sentenced as under:
"Simple imprisonment for a period of three months for commission of offence punishable under Section 279 IPC. Simple imprisonment for a period of six months for commission Page no.11 of total 12 Criminal Appeal No. 105/2023 Dhanpat Vs State of offence punishable under section 338 IPC. Simple imprisonment for a period of six months for commission of offence punishable under section 304-A IPC. The convict is also directed to pay fine of Rs.5,000/- and on his failure to pay fine, to undergo simple imprisonment for a period of two months".
20. In view of aforesaid discussions, present appeal under section 374 Cr. PC. against the impugned Judgment dated 20.02.2023 and order on sentence dated 18.04.2023, passed by the court of Sh. Yashdeep Chahal, Ld. Metropolitan Magistrate-01, New Delhi District, Patiala House Courts, New Delhi in case FIR No. 64/2007 titled as State Vs Dhanpat convicting and sentencing the appellant is dismissed.
21. Accused/convict Dhanpat be taken into custody and be sent to jail to serve the sentence.
22. Attested copy of the judgment be given to the appellant/convict, free of cost. Trial court record be sent back to the court concerned alongwith copy of this order.
23. Appeal file be consigned to record room after necessary compliance. Devender Digitally signed by Devender Kumar Kumar Jangala Date: 2024.02.29 Jangala 10:15:11 +0530 (Devender Kumar Jangala) ASJ-05/PHC/NDD/ND 28.02.2024 Page no.12 of total 12