Delhi District Court
Virender Baitha S/O Sh. Raj Dev vs The State on 31 January, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS
NEW DELHI
CA No. 433 of 2017
Virender Baitha S/o Sh. Raj Dev
R/o Vill. Norangia
PS: Lakhora, Distt. Mothihari
Bihar .......... Appellant
Vs.
The State .......... Respondent
Instituted on : 15.11.2017
Argued on : 23.01.2018
Decided on : 31.01.2018
JUDGMENT:
1 The appellant has assailed the judgment dated 1.8.2017 vide which he is convicted u/s 279/304A IPC and order on sentence dated 17.10.2017 vide which he is sentenced to pay fine of Rs. 500/ u/s 279 IPC and in default of payment of fine to undergo SI for 5 days and SI for 6 months u/s 304A IPC.
2 The appeal is filed on the grounds that there is no evidence on record to base the conviction of the appellant. Ld. Trial Court has Virender Baitha v. State - CA No. 443 of 2017 1 of 19 failed to appreciate the testimony of PW3. There is no public witness on record to support the case of prosecution. The damage on motorcycle shows that deceased was hit by some other vehicle. There is nothing on the record to show the speed of his vehicle. The judgment and sentence be set aside.
3 The notice of the appeal is issued to the prosecution. 4 The facts of the case are like this. Ct. Kalu Ram, No. 1580/SD gave his statement to the police that he is Constable at PP Sunlight, PS, New Friends Colony. On 27/2842008 he was on patrol duty from 8pm to 8am on his motorcycle. On 28.4.2008 at 7.45am he has crossed Ashram Chowk on the ring road towards Lajpat Nagar and reached near Railway Bridge. One TATA 407 bearing registration No. DL1LB4888 was going from Fly Over, Ashram towards Lajpat Nagar in a high speed and in a rash and negligent manner and hit against motorcycle bearing No. DL3SAM1033 from behind as a result motorcycle rider alongwith motorcycle fell down. The head of motorcycle rider came under the left rear wheel of the TATA 407. The Virender Baitha v. State - CA No. 443 of 2017 2 of 19 motorcycle succumbed to the injuries on the spot. The driver of TATA 407 stopped the vehicle at some distance. The public persons lifted the deceased and sent him to hospital. The tempo driver saw the injured. He also saw the tempo driver who tried to flee but apprehended by him. The tempo driver disclosed his name as Virender Baitha @ Viru. IO reached on the spot. The statement of Ct. Kalu Ram was record which led to registration of FIR. Investigation was carried out. Charge sheet u/s 279 and 304A IPC is filed against the appellant. 5 Notice of accusation was framed for offence u/s 279/304A IPC against the appellant who pleaded not guilty and claimed trial. The prosecution has examined 13 witnesses.
6 The appellant was examined u/s 313 Cr.PC. His defence is that he was driving TATA 407. He was going from Fly Over, Ashram. One motorcyclist hit his vehicle on the left side who fell down and came under the rear wheel of his vehicle. His conductor Nuruda was with him. He was neither rash nor negligent. However, no defence evidence has been led.
Virender Baitha v. State - CA No. 443 of 2017 3 of 19 7 Ld. Trial court after hearing the Ld. APP, Ld. Defence Counsel and perusing the record has convicted and sentenced the appellant. 8 The prosecution has examined 13 witnesses.
9 PW1 Shabbir Ahmad, PW2 Faraz Ahmad and PW6 Mohd. Intrazul Haque @ Afroz have identified and received the dead body of deceased Mohd. Sham Tabrez. PW2 has also taken the motorcycle in question on superdari.
10 PW3 Ct. Kalu Ram stated that on 28.4.2008 he was posted at PP, Sunlight Colony, PS, New Friends Colony. On that day he was on duty from 8pm to 8am. At 7.45am he reached just ahead from Ashram Chowk towards Lajpat Nagar near Railway Bridge where he saw that one TATA 407 bearing No. DL1LB4888 was going on Fly Over towards Lajpat Nagar. The vehicle was being driven by the appellant in a rash and negligent manner and hit against the motorcycle bearing No. DL3SA1033 from behind as a result motorcycle rider fell down whose head came under the left rear wheel of the tempo who died on the spot. He with the help of public persons send the injured in a Virender Baitha v. State - CA No. 443 of 2017 4 of 19 private vehicle to hospital. The appellant stopped the tempo just ahead from place of accident and came to see the injured. The appellant tried to flee but he apprehended the appellant who disclosed his name and address. IO reached on the spot and recorded his statement Ex. PW3/A. FIR was got registered through Ct. Pappu Ram. Motorcycle, tempo, RC of tempo, NCR of D/L of appellant and photocopies of the documents of tempo were taken into possession vide Fards Ex. PW3/B, C, D and G and H. The appellant was arrested whose personal search and arrest memo Ex. PW3/E and F were prepared. During cross examination he stated that distance between his vehicle and that of offending vehicle was around 100 meters. Many vehicles were plying before his vehicle. The vehicle of deceased was ahead of offending vehicle. He cannot say about the speed of offending vehicle. The offending vehicle stopped at a distance of 3040 meters from the place of incident. The deceased was removed to hospital in a car immediately after the accident. He has apprehended the appellant after injured was sent to hospital. His statement was recorded on the spot by Virender Baitha v. State - CA No. 443 of 2017 5 of 19 the IO. He did not take the name and addresses of persons gathered on the spot. The suggestion is denied that vehicle of deceased was hit by some other vehicle. The suggestion is denied that he was not present on the spot that is why he did not call the police by dialing no. 100. 11 PW4 Kripal Singh stated that he is owner of TATA 407 bearing No. DL1LB4888. A notice u/s 133 MV Act was received by him on which endorsement Ex PW4/A was made by him to the effect that said vehicle was being driven by appellant. He has produced the appellant before the IO in the PS. The D/L of appellant was taken into possession vide memo Ex. PW4/B. The appellant was driver of TATA
407. The said vehicle was taken on superdari by him. 12 PW5 HC Mahinder has recorded FIR Ex. PW5/A and endorsement Ex. PW5/B on the rukka.
13 PW7 SI Vineet Kumar stated that on 28.4.2008 he was posted as Ct. at PP Sunlight Colony, PS, NFC. On that day he alongwith ASI Kishan went to place of accident where Ct. Kalu Ram was present. He alongwith IO went to hospital by leaving Ct. Kalu Ram on the spot. Virender Baitha v. State - CA No. 443 of 2017 6 of 19 DD No. 8 was also received regarding the death of injured. The inquest papers Ex. PW7/A bear his signature. Dead body after postmortem was handed over to relatives of deceased. 14 PW8 HC Rajesh has proved DD No. 8 Ex. PW8/A. 15 PW9 Dr. Adarsh Kumar stated that on 28.4.2008 he alongwith Dr. Bharat Verma has conducted the autopsy on the body of deceased Mohd. Shams Tabeez. The cause of death is head injury due to impact of blunt force. All the injuries were ante mortum in nature and possible in road traffic accident. The postmortem report is Ex.PW9/A which bears his signature at point A and that of Dr. Bharat Verma at point B. Dr. Bhart Verma has expired. MLR Ex. PW9/B was issued by Dr. Deepak,JR. He can identify his signature being Faculty Incharge of the Medical Record Section. During cross examination he stated that dead body was brought at 8.47am by Anil Sharma. The suggestion is denied that he did not conduct the postmortem as it was conducted by his junior. The handwriting on postmortem report is that of Dr. Bharat Verma. There is no possibility that injuries on the head Virender Baitha v. State - CA No. 443 of 2017 7 of 19 were caused by pelting of stones or with pointed metals. The combination of injuries on the body of deceased are possible in road traffic accident.
16 PW10 HC Pappu stated that on 28.4.2008 he was posted as Constable, PP, Sunlight Colony. He was on duty from 8am to 8pm. He received a telephone from the Munshi who told him to go to Ashram where accident has taken place. He went near Fly Over, Ashram Chowk towards railway line crossing where he met ASI Kishan who handed over tehrir to him for registration of case upon which he came to PS and came back to the spot with copy of FIR and tehrir. 17 PW11 T. U. Siddiqui has conducted mechanical inspection of motorcycle and TATA 407 and issued the reports Ex.PW11/A & B. 18 PW12 Afroz has signed the recovery memo Ex. PW1/B regarding receipt of deadbody by Firoz.
19 PW13 SI Kishan stated that on 28.4.2008 he was ASI at PP, Sunlight Colony, PS, New Friends Colony. DD No. 27 was handed over to him. He alongwith Ct. Vineet went to Ashram Chowk where Virender Baitha v. State - CA No. 443 of 2017 8 of 19 motorcycle No. DL3SAM1033 and TATA 407 bearing No. DL 1LB4888 were found in an accidental condition. Ct. Kalu Ram met him and narrated the incident who also handed over the appellant to him. Statement Ex. PW3/A of Ct. Kalu Ram was recorded. The injured was already removed to hospital. Ct. Pappu Ram came there with DD No. 8 regarding admission of injured to AIIMS Trauma Centre. He went to hospital by leaving Ct. Kalu Ram, appellant and vehicles on the spot where MLC of deceased was taken who was declared brought dead. He made an endorsement Ex. PW13/A on statement of Ct. Kalu Ram and handed over to Ct. Pappu for registration of FIR who went to PS for registration of FIR. Ct. Pappu came to AIIMS Trauma Centre with copy of FIR and rukka. He alongwith Ct. came back to spot. Site plan Ex. PW13/B was prepared at the instance of Ct. Kalu Ram. The vehicles, NCR of the D/L of appellant, documents of TATA 407 were taken into possession vide memos Ex. PW2/C, PW3/B, G and H.The appellant was arrested. Personal search and arrest memo Ex. PW3/E and F were prepared. Virender Baitha v. State - CA No. 443 of 2017 9 of 19 Photographs of vehicle were taken.
20 Notice u/s 133 MV Act Ex. PW13/C was given to Kirpal Singh, owner of the TATA 407 who came to PP and told that appellant was driving the vehicle at the time of accident. The endorsement to this effect is Ex. PW4/A. The appellant was admitted to bail. The dead body after postmortem was handed over to relatives of deceased. The vehicles were got mechanically examined. Statements u/s 161 CrPC were recorded. Charge sheet was prepared.
21 During crossexamination he stated that Ct. Kalu Ram was present when he reached at the spot at around 7.45am. He has asked public persons to give their statements but all of them refused to give the statement. The statement of eye witness was recorded on the spot. The suggestion is denied that investigation was conducted while sitting in the PS. 22 Ld. Counsel for the appellant submitted that accident has not taken place with the vehicle being driven by the appellant. He further submitted that there is no evidence on record with respect to the speed Virender Baitha v. State - CA No. 443 of 2017 10 of 19 of his vehicle. He further submitted that PW3 is not an eye witness who is planted later on. He further submitted that it is not possible to see the speed of vehicle from the distance of 100 meters. 23 Ld. Addl.PP for the State submitted that appellant has hit his vehicle against the motorcycle from behind which itself is a factum of negligent driving even if, the evidence of high speed has not come on record. He further submitted that PW3 has fully corroborated the case of prosecution and Ld. Trial Court has rightly appreciated the evidence and convicted the appellant.
24 Heard and perused the record.
25 PW3 is an eye witness. His testimony clearly shows that 28.4.2008 at 7.45 am he was on duty and reached ahead of Ashram Chowk towards Lajpat Nagar near Railway Bridge. No question or suggestion is put to him that he was not on patrol duty at the time of accident. His testimony clearly shows that he was at a distance of 100 meters from the offending vehicle. The motorcyclist was ahead of the offending vehicle. The offending vehicle was being driven by the Virender Baitha v. State - CA No. 443 of 2017 11 of 19 appellant in a rash and negligent manner. He has failed to depose about the speed of the offending vehicle. The offending vehicle hit the motorcycle from behind as a result motorcyclist fell down whose head came under the left rear wheel of the offending vehicle who succumbed to injures on the spot. The entire evidence on record including statement u/s 313 CrPC of the appellant shows that appellant was driving the offending vehicle. The factum of high speed is not on record. Moreover, high speed is no criteria to determine the factum and rashness and negligence.
26 The appellant has taken the defence in his statement u/s 313 Cr.PC that motorcyclist hit his vehicle from the left side who fell down and came under the left rear wheels of the vehicle. The defence taken in the statement u/s 313 Cr.PC does not inspire confidence. No question or suggestion is put to PW3 that motorcyclist has hit the offending vehicle from the left side. The defence put to PW3 is that some other vehicle has hit the motorcycle of the deceased. His defence in statement u/s 313 CrPC is contrary to the defence taken during the Virender Baitha v. State - CA No. 443 of 2017 12 of 19 course of examination of the witnesses. It shows that his defence is an after thought which is without any merits.
27 The mechanical inspection report of the motorcycle Ex. PW11/B shows that it has sustained damage on the right side. It corroborates the fact that offending vehicle has hit the right side of the motorcycle from behind that is why there is extensive damage on the right side. The mechanical inspection report of the offending vehicle Ex. PW11/A shows that there is damage on the left side. There is damage on the left front bumper and mud guard. It further corroborates the fact that front side of the offending vehicle has hit the right side of the motorcycle that is why there is damage on the front side of the offending vehicle. The mechanical inspection reports belies the defence of the appellant taken in his statement u/s 313 CrPC.
28 The factum of negligent driving can be drawn from the entire evidence on the record. A person who drives a vehicle on the road is liable to be held responsible for his act and its result. The negligence Virender Baitha v. State - CA No. 443 of 2017 13 of 19 means omission to do something which a reasonable and prudent person would do. The driver has to take reasonable care and precaution while driving the vehicle. The person behind the wheels is under an obligation to take care of the vehicles on the road. He is under an implicit duty that his driving does not endanger the life of any person. He should have driven the vehicle in such a fashion that his vehicle should not hit the other vehicle on the road. There was admittedly the traffic on the road. It was the duty of the appellant to maintain a safe distance from the vehicle going ahead of him. The motorcycle was visible to him as accident has taken place during morning time. The appellant failed to stop the offending vehicle after the accident which further corroborate the fact that he was driving the vehicle in a rash manner. It is not the case of the appellant that motorcyclist has suddenly come in front of his vehicle and applied the brakes. He has hit the motorcycle from behind which itself it a factum of negligent driving. It shows that appellant has not taken reasonable care and precaution while driving the vehicle on a public way. The Virender Baitha v. State - CA No. 443 of 2017 14 of 19 hitting of the vehicle from behind speaks volume about the negligent driving.
29 The postmortem report Ex.PW9/A of the deceased shows that the injuries on the body of deceased are possible in the road traffic accident. The injuries were caused by blunt force. The deceased came under the left rear wheel of the offending vehicle. He has sustained injuries and succumbed to the injuries. Postmortem report corroborates the fact that injuries on the body of deceased were the result of accident.
30 PW3 has seen the accident. There is nothing in his testimony that offending vehicle was not visible to him. It was morning time i.e. 7.45am. The traffic remains less during morning time so there is every possibility that he has seen the offending vehicle while hitting the motorcycle. The appellant was apprehended on the spot. The testimony of PW4 that he has produced the appellant in the PS does not inspire confidence because endorsement on the notice Ex. PW13/A does not show that he has produced the appellant in the PS. Virender Baitha v. State - CA No. 443 of 2017 15 of 19 The personal search and arrest memos bear the signatures of PW3 Ct. Kalu Ram. There is nothing on record that appellant was arrested from some other place. The appellant was produced by PW3 before PW13 meaning thereby that PW3 was on the spot and his presence cannot be disputed. He has no motive to depose against the appellant. He will not falsely implicate the appellant or substitute a wrong person in place of real offender. He will not allow the real culprit to go scot free. There is no evidence of enmity on record. No major contradiction is brought on record by the appellant to bring his testimony into zone of doubt. To my mind, there is nothing on the record to cast aspersion on his testimony. He has given details of the accident which shows that accident has taken place with the vehicle being driven by the appellant in a rash and negligent manner. The accident has taken place due to rash and negligent driving of the appellant. Support is drawn from Paras Nath v. State of Delhi 107 (2003) DLT 169 and Jeet Lal v. State ILR (2010) Supp. 4 Delhi 558.
31 The entire evidence on the file shows that appellant was driving Virender Baitha v. State - CA No. 443 of 2017 16 of 19 the offending vehicle in rash and negligent manner and hit against the motorcycle being driven by deceased who fell down and came under the rear left wheel of the offending vehicle. The deceased has succumbed to the injuries.
32 Ld. Counsel for the appellant submitted that appellant is 40 years old who has a large family to support including 3 children. He further submitted that appellant is the sole bread earner of the family and any substantive sentence will affect his family. He further submitted that appellant be released on the probation of good conduct and even the Court can grant compensation to the family members of the deceased.
33 Ld. Addl. PP for the State has urged to the contrary. 34 One person has lost his life. The appellant was driving commercial vehicle. The deterrent punishment is more important in road accident cases so that persons who ply the vehicles on the road must bear in mind that they will have to face serious consequences including conviction and imprisonment in case of fatal accident. The Virender Baitha v. State - CA No. 443 of 2017 17 of 19 appellant cannot claim sympathy because a person who plays with fire cannot complain of burnt fingers. The leniency is in such like cases will do injustice to the family members of the deceased. A stern message has to be given to the society. To my mind, there is no ground to take a lenient view as Ld. Trial Court has already passed the sentence u/s 279/304A IPC which is on the lower side. 35 I do not find any infirmity or perversity with respect to the conviction recorded u/s 279/304A IPC and sentence imposed u/s 279/304A IPC. The conviction and sentence u/s 279/304A IPC are upheld.
36 The appeal is dismissed. The appellant is taken into custody in order to serve the sentence imposed by Ld. Trial Court. His warrant of commitment be prepared and sent to Superintendent Jail, Tihar, New Delhi.
37 Attested copy of the judgment be supplied to the appellant free of cost.
38 TCR record alongwith copy of the judgment be sent to the Ld. Virender Baitha v. State - CA No. 443 of 2017 18 of 19 Trial Court.
39 Appeal file be consigned to record room.
announced in the open court on 31st January, 2018 (SURESH KUMAR GUPTA)
Additional Sessions Judge04 & Spl. Judge (NDPS) South East, New Delhi Virender Baitha v. State - CA No. 443 of 2017 19 of 19