Delhi District Court
State vs . Siraj on 25 October, 2018
IN THE COURT OF SH. GAGANDEEP JINDAL: MM09:
SOUTHEAST DISTRICT: SAKET COURTS: NEW DELHI
FIR No.175/2016
U/s 279/337304A IPC and 129/177, 3/181, 128/177 MV Act
PS Defence Colony
State Vs. Siraj
Date of Institution of Case : 08.11.2016
Judgment Reserved for : 23.10.2018
Date of Judgment : 25.10.2018
JUDGMENT:
(a) CIS Number : 97826/2016
(b) The date of commission of offence : 01.07.2016
(c) The name of complainant : HC Lakha Ram No.1027/SD,
PS Defence Colony, New Delhi.
(d) The name, parentage of accused : Siraj
S/o Sh. Mustakeem
R/o House No.G41/10, G
Block, Ratiya Marg, Sangam
Vihar, New Delhi.
(e) The offence complained of : 279/337304A IPC and
129/177, 3/181, 128/177 MV Act
(f) The plea of accused : Not guilty
(g) The final order : Convicted
(h) The date of such order : 25.10.2018
Brief statement of the reasons for the decision:
1 Brief facts of the case are that on 01.07.2016, at about 0630 PM, at Road
No.7, near Kudadan (dustbin), Andrews Ganj, New Delhi, accused Siraj was found driving a Scooty bearing registration no.DL3SDF2274 (hereinafter referred as 'offending vehicle') with two pillion riders i.e. Adil and Radha in a FIR No.175/2016, PS Defence Colony State Vs Siraj Page 1 of 9 rash and negligent manner without wearing the protective headgear i.e. helmet and without having driving license and while so driving, the said scooty fallen down on the road due to which Radha caused simple injuries and Adil sustained grievous injuries and died later on. Therefore, the accused was arrested for the offences under Section 279/337304A IPC and 129/177, 3/181, 128/177 MV Act.
2 After the accused appeared in the court, copies of chargesheet and other documents were supplied to the accused. Notice under Section 279/337304A IPC and 129/177, 3/181, 128/177 MV Act was framed against the accused. The accused pleaded not guilty and claimed trial. Thereafter, the matter was listed for prosecution evidence.
3 In the prosecution evidence, prosecution has examined 15 witnesses to prove its case.
4 PW1 Ms. Radha deposed that on 01.07.2016, she went to Ansal Plaza Hudco and where she met with her friends namely Adil and Siraj. Thereafter, they all went to Andrews Ganj Market on the scooty. Siraj was driving the said scooty. When he took Uturn from Andrews Ganj Market, the said scooty got slipped. They all fell down on the road. Thereafter, she became unconscious and regained her consciousness in AIIMS hospital. PW1 was cross examined by Sh. Pravesh Vyas, Ld. APP for the State and Sh. Amit Vohar, Ld. Counsel for accused.
5 PW2 Sh. Mayank Sharma deposed that on 01.07.2016, he was coming from his office situated at Nehru Place. When he reached at Andrews Ganj, he saw three persons i.e. one girl and two boys, and one scooty were lying on the road in an accidental condition. He alongwith 23 other persons, shifted all three injured persons to AIIMS Trauma Centre in his car make Swift Dzire. Thereafter, he made call at number 100.
FIR No.175/2016, PS Defence Colony State Vs Siraj Page 2 of 96 PW3 Sh. Shankar Lal deposed that on 01.07.2016 at about 5:306:00 PM, when he was present on the terrace of his inlaw's house situated at House No.66, Road No.7, Andrews Ganj, New Delhi. He heard the noise and saw that an accident tool place at Road No.7, Andrews Ganj. He made call at number 100. When he came down to the spot, he saw that one public person shifted the injured persons to the hospital in his private vehicle. 7 PW4 Sh. Afsar Ali is the father of deceased Adil. He had identified dead body of his deceased son Adil at mortuary AIIMS Trauma Centre. After postmortem, dead body of deceased Adil was handed over to PW4. PW4 proved identification memo as Ex.PW4/A and handing over memo of dead body as PW4/B. 8 PW5 ASI Virender Singh is the Duty Officer. He proved DD entry No.34A as Ex.PW5/A. He endorsed the rukka vide DD entry 37A as Ex.PW5/B and registered the present FIR as Ex.PW5/C. He also proved certificate u/s 65B Indian Evidence Act as Ex.PW5/D. 9 PW6 Sh. Sonu deposed that in July 2016 at about 6:00 6:30 PM, when he was playing near Road No.7, he heard some noise and found that an accident took place at Road No.7. He saw one girl and two boys in injured condition near the scooty. He alongwith his friend shifted all the three injured persons to AIIMS Trauma Centre in one car.
10 PW7 SI Prem Singh deposed that on 05.07.2016, he got conducted postmortem of deceased Adil. He recorded the statement of father of deceased Adil namely Affar and his relatives. He proved statement of father of deceased as Ex.PW4/A, statement of Sabir as Ex.PW7/A, an application for conducting postmortem of deceased Adil as Ex.PW7/B, Form No.25.35 (1) (B) as Ex.PW7/C and handing over memo of deceased Adil as Ex.PW4/B. 11 PW8 Sh. Tasnim Uddin Siddiqui is the mechanical expert. He proved FIR No.175/2016, PS Defence Colony State Vs Siraj Page 3 of 9 mechanical inspection report of scooty prepared by him as Ex.PW8/A. He correctly identified scooty bearing registration number DL3SDF2274 in the photographs as Ex.P1 to Ex.P4.
12 PW9 ASI Bater Ram deposed that on 05.07.2016 at about 12:35 midnight, he received the information telephonically from Constable Pawan that injured Adil who was admitted in AIIMS Trauma Centre had expired. He made DD No.3A in this regard as Ex.PW9/A. 13 PW10 Dr. Munir Ahmad, Senior Resident at AIIMS Trauma Centre, New Delhi but failed to identify the signature of Dr. Bala Sri Harini on the MLC No.569316/01.07.2016, MLC No.569317/0107.2016 and MLC No.569318/ 01.07.2016.
14 PW11 Ct. Karambeer Yadav had obtained postmortem report of deceased Adil from AIIMS Trauma Centre on 16.08.2016. 15 PW12 Sh. Chandan Vohra, Sales Manager ICICI Lombard, Green Park Branch, New Delhi, deposed that policy number 3005/28779197/10692 was issued by their branch. The same is Ex.PW12/1.
16 PW13 HC Lakha Ram is the IO of the present case. He deposed about the investigation conducted by him after receiving DD no.34A regarding the accident. He alongwith Ct. Jai Kumar went to the spot and found one scooty bearing registration number DL3SDF2274 in accidental condition and came to know that injured had already been shifted to hospital. He received DD No.36A regarding admission of injured persons in AIIMS Trauma Centre. When he went to AIIMS Trauma Centre, MLC of injured persons were not prepared at that time. He proved tehrif prepared by him as Ex/Pw13/A, seizure memo Ex.PW13/B for seizing the scooty, seizure memo Ex.PW13/C for seizing the RC and insurance policy of the said scooty. He came to know about the address of injured Radha from father of deceased Adil. He recorded the statement of injured FIR No.175/2016, PS Defence Colony State Vs Siraj Page 4 of 9 Radha and other witnesses. He issued notice u/s 41 D Cr.PC to accused Siraj as Ex.PW13/D, got verified the birth certificate of accused Siraj by issuing notice as Ex.PW13/F to Principal, Hamdard Public School and received the reply as Ex.PW13/G. He also prepared the site plan as Ex.PW13/I. 17 PW14 Sh. Aditya Swaroop, who identified the signature of Dr. Bala Sri Harini on MLC No.569316 of patient Adil as Ex.PW14/A, MLC No.569317 of patient Siraj as Ex.PW14/B, MLC No.569317 of patient Radha as Ex.PW14/C. 18 PW15 Dr. Adarsh Kumar, Professor Forensic (Medicines), AIIMS Trauma Centre, identified the signature of Dr. Jasbir Singh on postmortem report of deceased Adil as Ex.PW15/A. He deposed that the cause of death of deceased Adil was "comma due to cranio cerebral caused by head injuries" which was sufficient to cause death in ordinary course of nature. 19 Accused through his counsel Sh. Tarun Aggarwal, has admitted entry number 1176/2016 made in register number 19 for deposition of case property in malkhana, PS Defence Colony which is Ex.A1 in terms of Section 294 Cr.PC. 20 In his statement recorded U/s 313 Cr.P.C. all the incriminating evidence were put to the accused and explained him to which he stated that he was driving the scooty at the time of accident at normal speed due to raining. When he took Uturn, scooty got slipped and an auto rikshaw hit the scooty from behind. He also admitted that there were two pillion riders i.e. Adil and Radha and they all were not wearing the helmet. He was not having valid driving license at that time.
21 Accused did not lead any evidence in his defence. 22 I have heard final arguments and I have perused the record. 23 I have bestowed my thoughtful considerations to the rival submissions
made before me. Accused is indicted for offences u/s 279/337/304A IPC and 128/177, 129/177, 3/181 MV Act. Section 279 IPC punishes the offence of FIR No.175/2016, PS Defence Colony State Vs Siraj Page 5 of 9 driving a vehicle in a manner "so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person" ; and Section 338 IPC provides punishment for causing grievous injuries while doing rash and negligent act.
24 Proof of rashness and negligence is required for section 279 IPC as also 337/304A IPC. To constitute either of the offences u/s 279 IPC or 337/304A IPC, proof of criminal rashness or criminal negligence is essential. In order to establish criminal liability the facts must be such that the negligence of the accused went beyond a mere matter of compensation and showed such a disregard for life and safety of others as to amount to a crime. 25 In order to bring home the guilt of the accused u/s 279/337/304A IPC, prosecution has to prove three aspects, firstly that the accused was driving scooty bearing registration no.DL3SDF2274 that the said offending vehicle was being driven by the accused in rash or negligent manner causing the accident in question and thirdly, in the said road accident victim Radha sustained simple injuries while deceased Adil lost his life in the accident. 26 To prove the nature of injuries sustained by the injured Radha, the prosecution has examined PW14 Sh. Aditya Swaroop, who proved the MLC of injured Radha as Ex.PW14/C. In the said MLC, the injuries sustained by injured Radha is described as 'abrasion RT parietal region 2X1 cm, chin 1X1 cm, right forearm 6X3 cm and laceration left parietal region 3X1 cm'. These injuries are simple in nature.
27 To prove the death of deceased Adil in road accident, prosecution has examined PW15 Dr. Adarsh Kumar, Professor Forensic (Medicines), AIIMS Trauma Centre, who had identified the signature of Dr. Jasbir Singh on postmortem report of deceased Adil Ex.PW15/A. He deposed that the cause of death of deceased Adil was "comma due to cranio cerebral caused by head FIR No.175/2016, PS Defence Colony State Vs Siraj Page 6 of 9 injuries" which was sufficient to cause death in ordinary course of nature which has been caused antemortem by blunt force. The dead body of deceased Adil was identified by his father PW4 Afsar Ali vide identification memo Ex.PW4/A. It is not disputed by the Ld. Defence counsel that deceased Adil that lost the lift in road accident. Thus, the prosecution has proved that injured Radha had suffered simple injury while deceased Adil has lost his life in the road accident. 28 It is worthwhile noting at this juncture that the above noted second aspect of the case that is rashness or negligence on the part of the accused can be deliberated upon only after the prosecution is successful in crossing the initial hurdle of proving first aspect that is the involvement of the offending vehicle as well as the accused to the driver of the same. To this effect prosecution had cited eye witness/injured i.e. PW1 Radha. During the arguments, the Ld. Counsel for accused fairly conceded that accused was driving the offending vehicle at the time of accident.
29 The only defence raised by the accused is that the accident was not caused due to his rash and negligent driving but it was causd due to slip of scooty because it was raining and their scooty was hit by an Auto from behind. 30 In the Judgment titled as Ravi Kapur v. State of Rajasthan (2012) 9 SCC 284 the apex court in para 10 and 11 has observed as below:
"10. In order to examine the merit or otherwise of contentions (b) and (c) raised on behalf of the appellant, it is necessary for the Court to first and foremost examine (a) what is rash and negligent driving; and (b) whether it can be gathered from the attendant circumstances. Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow sped but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 IPC. That is why the FIR No.175/2016, PS Defence Colony State Vs Siraj Page 7 of 9 legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted".
11. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence".
31 The Hon'ble Supreme Court has observed in the Bhalchandra Vs. State, AIR 1968 SC 1319 that criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, held 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 risk of doing such an act with recklessness and indifference so 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.
32 To prove the rash and negligent driving of accused, the prosecution has examined PW1/injured Radha who has categorically stated that she alongwith accused Siraj and deceased Adil was going to Andrews Ganj market on a scooty and they were not wearing the helmets. Accused was driving the scooty at very high speed in zigzag manner. She had asked the accused not to drive the scooty FIR No.175/2016, PS Defence Colony State Vs Siraj Page 8 of 9 in zigzag manner.
33 It is not disputed by Ld. Defence Counsel that at the time of accident, none of riders were wearing the helmets. Accused was driving the scooty with two pillion riders which is not permissible by the law. Accused was not having the valid driving license at that time. He was driving the scooty with high speed in zigzag manner. All these facts itself proves that accused omitted to take the reasonable precautions while driving the scooty which ought to have been taken by an ordinary prudent person. Accused must have denied to drive the scooty with two pillion riders and without wearing the helmets but he run the risk to drive the scooty even after having knowledge that it may be dangerous to drive the scooty in these circumstances.
34 The onus to produce valid driving license was on accused which he failed to discharge. Rather he had admitted in his statement u/s 313 Cr.P.C that he was not having valid driving license at the time of accident. 35 In view of the above discussion and appreciation of evidence, the court is of the considered opinion that the prosecution has been able to prove its case against the accused Siraj that he was driving the offending scooty in rash and negligent manner, with two pillion riders, without wearing helmet and without having valid driving license beyond reasonable doubt. In the said accident injured Radha sustained simple injuries and other injured Adil lost his life. Therefore, accused Siraj is convicted for the offence u/s 279/337/304 A IPC and 128/177, 129/177, 3/181 MV Act. Digitally signed by GAGANDEEP GAGANDEEP JINDAL JINDAL Date:
ANNOUNCED AND SIGNED IN THE 2018.10.26
14:58:39 +0530
OPEN COURT on 25th October 2018
(GAGANDEEP JINDAL)
MM09, SOUTHEAST DISTRICT
SAKET: NEW DELHI
FIR No.175/2016, PS Defence Colony State Vs Siraj Page 9 of 9