Delhi District Court
State vs . Anuj Yadav on 6 September, 2019
IN THE COURT OF MS. SNIGDHA SARVARIA
METROPOLITAN MAGISTRATE-01, SHAHDRA DISTRICT,
KARKARDOOMA COURTS, DELHI
State Vs. Anuj Yadav
FIR No. 230/12
PS: GTB enclave
U/s 279/338 IPC
a. Comp. ID No. of the case : 80094/2016
b. Date of commission of offence : 17.10.2012
c. Date of institution of the case : 23.04.2013
d. Name of complainant : Sh. Shobhit
S/o Sh. Tilak Diwaker
e. Name of accused : Anuj Yadav
S/o Vijender Yadav
R/o D-241, Near Amit Property
Dealer Gagan Vihar, Bhopura,
Ghaziabad, U.P.
f. Offence complained of : U/s 279/338 IPC
g. Plea of accused : Pleaded not guilty
h. Arguments heard on : 20.08.2019
i. Final order : Convicted
j. Date of judgment : 06.09.2019
JUDGMENT
FACTS IN BRIEF :
1. Briefly stating, the case as per prosecution is that on 17.10.2012 at about 05.30 p.m at Slip road, Shahdara Flyover, near FIR No. 230/12 PS GTB Enclave State V. Anuj Yadav (06.09.2019) Pg No. 1 of 11 GTB Police Station, Delhi accused Anuj Yadav was driving one vehicle/truck bearing Reg. no. DL 1LG 2018 in a public way in a manner so rash and negligent so as to endanger human life or personal safety of others and while driving the above said vehicle stuck against one motorcycle bearing Reg. No. DL 3S AB 7873 and as a result the motorcycle rider Shobhit sustained grievous injuries and thus he committed offence punishable U/s 279/338 IPC.
2. After completion of investigation, charge-sheet was filed. Upon taking cognizance of the offence, accused was summoned and supplied with copy of charge-sheet in compliance of section 207 of Cr.P.C. Charge u/s 279/338 IPC was framed on 31.07.2013 Accused pleaded not guilty and claimed trial.
3. In order to prove its case the prosecution examined several witness i.e. W/HC Indu Bala as PW-1, Sobhit/complainant as PW2, Sh. Manohar Lal Dhyani, who conducted mechanical inspection of the vehicles as PW-3, Ct. Gaurav as PW-4, SI Pankaj Tomar as PW-5, Ct. Avinash as PW-6 and thereafter vide order dt. 25.07.2019 PE was closed.
4. Statement of the accused u/s 313 Cr.P.C. was recorded on 07.08.2019 wherein accused stated that the complainant had over taken his vehicle from wrong side and a cyclist fell down on the bike of the complainant and due to sudden impact the complainant sustained FIR No. 230/12 PS GTB Enclave State V. Anuj Yadav (06.09.2019) Pg No. 2 of 11 injuries. Accused further stated that it is a false case registered against him and the accident was not happened due to his negligence. Accused opted not to lead DE.
5. I have heard the arguments of Ld. APP for the State as well as of ld. Counsel for accused, perused the record and have gone through the relevant provisions of the law.
6. Section 279 IPC says:
Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt to injury to any other person, shall be pun- ished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 338 IPC says:
338. Causing grievous hurt by act endangering life or personal safety of others. - Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
7. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in run- ning the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty FIR No. 230/12 PS GTB Enclave State V. Anuj Yadav (06.09.2019) Pg No. 3 of 11 with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the impera- tive duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.
8. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordi- narily regulate the conduct of human affairs would do or act which a pru- dent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not.
9. Lord Atkin in Andrews v. Director of Public Prosecutions (1937) AC 576 at p.583 : 2 All ER 552) observed as under:
"Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'recklessness' most nearly covers the case. It is difficult to visualize a case of death, caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter; but it is probably not all embracing, for 'recklessness' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction."
FIR No. 230/12 PS GTB Enclave State V. Anuj Yadav (06.09.2019) Pg No. 4 of 11
10. "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 neg- ligence 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 particu- lar, 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. (AIR 2009 SUPREME COURT 1621 "State of Karnataka v. Muralidhar")
11. In Syed Akbar v. State of Karnataka, (1980) 1 SCC 30, it was held that :
"where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment."
12. In Ram Avtar Vs. State of Rajasthan, II (2006) ACC 438, passed by Hon'ble Rajasthan High Court it was held that:
"Thus, the essential ingredients for offence under section 279 IPC is that the vehicle should be driven in "rash and negli- gent manner". The concept of rashness and negligence is bor- rowed from the law of tort into the criminal law. But in criminal law for rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. On the other hand, criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precau- FIR No. 230/12 PS GTB Enclave State V. Anuj Yadav (06.09.2019) Pg No. 5 of 11 tion to guard against injury either to the public generally or to the individual in particular, 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 (Ref. To AIR 1944 Lah. 163). Hence, the prosecution has to prove the existence of these two ele- ments to bring home the offence under Section 279 IPC. However, the mere fact that accused was driving vehicle at high speed may not attract provision of Section 279 IPC. For, speed of the vehicle is not always determinative of the question whether vehicle was driven in a rash and negligent manner. One has to consider the surroundingcircumstances of the case to conclude whether the driving was done in rash and negligent manner or not?
8.In the case of Badri Prasad Tiwari Vs. The State I (1994) ACC 476: 1994 Cri. LJ 389 (Qri.), the Hon'ble Orissa High Court has held that "In order to constitute an offence under Section 279 IPC, it must be established that the accused was driving the vehicle on a public way in a rash and negligent manner to endanger human life or to likely cause hurt or injury to any other person."
13. PW2 Shobit deposed that he was driving bike bearing regis- tration no. DL 3 SAB 7873 while going to his house from his office at New Friends Colony on 17.10.2012 and when he reached slip road Shahdara, Flyover at about 5.30 pm then a Tata 407 truck bearing regis- tration no. DL 1 LG 2018 which was running parallel in the direction on which PW2 was moving and was on the right side of PW2 and a cyclist was on the left side of PW2. Suddenly the truck driver turned the truck towards the complainant PW2 and hit against the motorcycle of PW2 due to which PW2 fell down in front of his motorcycle and the rear wheel of the said truck crushed his right palm. The truck driver stopped the truck at a distance of about 10 steps and peeped towards PW2. PW2 correctly identified the driver of the truck as the accused in the court.
FIR No. 230/12 PS GTB Enclave State V. Anuj Yadav (06.09.2019) Pg No. 6 of 11 Pw2 stated that accused fled from the spot leaving him injured. PW2 made call on 100 and the PCR van came and took him to the hospital. He proved his statement/complaint Ex CW2/A and stated that the acci- dent took place due to rash and negligent act of the accused as he took sharp turn towards the complainant when PW2 was on the left side. In his cross-examination PW2 denied the suggestion that the accident took place due to his rash and negligent act. He also denied that he suffered injuries as he was overtaking the truck from the wrong side. He also de- nied that he suffered injuries due to falling on the road as cyclist fell on the bike of PW2.
14. From the testimony of PW2 it is manifest that the accused while driving the truck bearing registration no. DL 1 LG 2018 in a rash and negligent manner had caused the accident resulting in the injuries caused to PW2. This clearly shows that the accused drove truck bearing registration no. DL 1 LG 2018 on the public road without due care and caution and no ordinary prudent man would have driven the truck bear- ing registration no. DL 1 LG 2018 in such a manner by taking sharp turn towards the vehicle on the left driven by PW2 running parallel to the truck.
15. The contention of the counsel for the accused that at the time of the accident the accused was not at the accident spot and has been falsely implicated in this case is without any merits in view of the aforesaid clear cut testimony of PW2 who has identified the accused and FIR No. 230/12 PS GTB Enclave State V. Anuj Yadav (06.09.2019) Pg No. 7 of 11 has testified unequivocally pointing at the guilt of the accused. Also, TIP dated 30.10.2012 conducted by Ld. MM Mr. Jitendra Singh Ex PW5/K where by accused refused to participate in TIP as complainant had seen him at the spot also establishes the identity of the accused. Furthermore, notice under S. 133 MV Act Ex PW5/E which was replied by the accused stating that he was driving the vehicle in question at the time of the acci- dent also establishes the identity of the accused as the offender in the present case.
16. As per ordersheet dated 23.04.2013 accused admitted and did not dispute the identity of truck bearing registration no. DL 1 LG 2018; TIP proceedings; verification report of DL, Permit and Insurance. As per order sheet dated 06.03.2019 accused has admitted and not dis- puted MLC of the victim/PW2.
17. As per MLC no. 14794 dated 17/10/12, Ex A1, PW2 was admitted on 17.10.2012 and was discharged on 12.11.2012. PW2 Shob- hit suffered crush injury on his right hand and dislocation of 3 rd, 4th and 5th MT right, which injury is grievous in nature. The incident and MLC are both dated 17.10.2012 thus clearly it is also established and corrobo- rates the version of the prosecution that injuries were suffered by PW2 in the accident in question.
FIR No. 230/12 PS GTB Enclave State V. Anuj Yadav (06.09.2019) Pg No. 8 of 11
18. The seizure memos of truck Ex PW5/H and motorcycle Ex CW5/C and mechanical inspection report of motorcycle Ex PW3/A and mechanical inspection report of truck EX PW3/B shows involvement of the said to vehicles in the accident in question. The damages on motor- cycle of PW2 as per Ex PW3/A corroborates the version of the prosecu- tion.
19. The contention of the counsel for the accused that since none of the public witness has been examined by the prosecution thus benefit of doubt should be given to the accused is without any merits in view of the fact that the testimony of the injured witness cannot be dis- carded merely because no independent witness has been examined.
20. From the material on record it is manifest that the accused was rash and negligent in driving the offending vehicle as had he been vigilant and exercised due care and caution and not acted in haste then the accident could have been avoided. The accused if had been vigilent and cautious would have seen the bike of PW2 riding parallel to his truck and would not have taken a sudden sharp turn towards the complainant/victim PW2.
21. Furthermore, in view of the foregoing discussions and con- sidering the testimonies of all the PW 1 to PW6 and documents proved FIR No. 230/12 PS GTB Enclave State V. Anuj Yadav (06.09.2019) Pg No. 9 of 11 on record, the link to the chain of circumstances is also proved by the prosecution.
22. Clearly, from the aforesaid discussion, the prosecution has proved its case beyond reasonable doubt agisnt the accused qua of- fences punishable under S. 279/338 IPC.
23. One technical question that arises is whether conviction and sentence both under section 279 and section 338 IPC is permissible un- der the law as the latter section is the aggravated form of the former sec- tion. If a person is guilty of an offence under s 279, IPC, and death is also caused as a result of the negligent act, he will be guilty of the of- fence under s 304A, IPC, because an offence under this section is a mi- nor offence which is included in Section 304A, IPC. (See Esco Mathew v State of Kerala 1967 Ker LJ 227). An accused, convicted under s 304A, IPC, therefore, cannot be convicted under this section as the latter is a minor offence. (Shiva Ram v State 1965 All 196, (1965) 1 Cr LJ 524; Ranjit Singh v State of Haryana 1988 Chand Cr Cases 516 (P&H)) IPC. Our Delhi High Court has also taken a similar view and it was held that there was no need to impose any separate sentence for minor sentence under sections 279 because the offence under sections 304A and 338, IPC, are similar offence in aggravated forms. Thus the sentence imposed under section 279 was set aside (See Abdul Hameed v State (1990) 41 DLT 306, 307; Hamid Khan v State 1996 (1) Crimes 465 (Del). Therefore, where a person is convicted and sen- FIR No. 230/12 PS GTB Enclave State V. Anuj Yadav (06.09.2019) Pg No. 10 of 11 tenced under section 304A IPC a separate conviction under Section 279, for the minor offence which is included in the offence under s 304-A, is not justified. (See, Shiv Ram versus State AIR 1965 All 196).
24. In view of the foregoing discussion, the prosecution has proved beyond reasonable doubt that the accused Anuj Yadav is guilty of offences punishable under S. 338 IPC.
25. The defence of the accused that the complainant had over taken his vehicle from wrong side and a cyclist fell down on the bike of the com- plainant and due to sudden impact the complainant sustained injuries and that it is a false case registered against him and the accident was not happened due to his negligence is not believable in view of the aforesaid discussions and since no cogent evidence has been brought on record by the accused to disprove the case of the prosecution. Clearly, from the aforesaid discussion, the prosecution has proved its case beyond reasonable doubt and accused has failed to rebut the pros- ecution version. Accordingly, accused Anuj Yadav is convicted of of-
fences punishable under S. 338 IPC. Digitally signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date: 2019.09.06 15:10:32 +0530 Announced in the open (SNIGDHA SARVARIA) Court on 06.09.2019 Metropolitan Magistrate-01 Shahdara District, Karkardooma Courts, Delhi Judge Code: 0530 FIR No. 230/12 PS GTB Enclave State V. Anuj Yadav (06.09.2019) Pg No. 11 of 11