Delhi District Court
State vs . Shivdhari Ram on 17 July, 2015
MS. ARCHANA BENIWAL
IN THE COURT OF
METROPOLITAN MAGISTRATE (SOUTHEAST) 08
SAKET COURTS : NEW DELHI
J U D G M E N T
FIR No. 263/12 PS: Pul Prahladpur State Vs. Shivdhari Ram a. Sl. No. of the case : 117/1/29.04.2014 b. Date of Institution : 08.01.2013 c. Date of Commission of Offence : 01.08.2001 d. Name of the complainant : Ct. Rakesh Kumar PS Pul Prahladpur e. Name of the accused and his : Shiv Dhari Ram parentage and address S/o Ram Jatan R/o VPO Ketar PS Bhawanathpur, District Gadhwa, Jharkhand f. Offence complained of : U/s 279/304A IPC g. Plea of the accused : Pleaded not guilty h. Order reserved : 06.07.2015 i. Final Order : Conviction j. Date of such order : 17.07.2015 BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. It is the case of the prosecution that on the intervening night FIR NO. 263/2012 PAGE 1 Of 17F PAGE PS Pul Prahladpur of 06/07.09.2012 at about 1.30 a.m. SI Nagender Nagar along with Ct. Suresh reached at MB Road, near Lal Kuan, Petrol Pump where they saw a person lying in injured condition. At some distance one Truck Trolla bearing no. HR 55 D 88869 and a motorcycle bearing registration no. DL 3SCA 3730 were also lying in accidental condition. SI Nagender Nagar called the PCR at 100 number. Ct. Rakesh produced driver of truck Shiv Dhari Ram and his DL. Ct. Vivekanand reached the spot upon receipt of DD no. 29 A. The injured Sunil Kumar s/o Rohtash was taken to hospital. He was declared brought dead at the hospital. Statement of Ct. Suresh was recorded. At the instance of the complainant, FIR was registered. IO prepared the site plan. He also seized both the damaged vehicles and arrested the accused. Postmortem report was prepared as per which cause of death of Sunil was stated to be shock and haemorrage due to antemortem multiple injuries, consequent to blunt force impact which could be possible in road traffic accident. The truck was seized and accused was arrested. List of witnesses was prepared and filed with the chargesheet after completion of investigations.
2. Prima facie offence was found to be made out against the accused and he was given notice u/s 251 Cr.PC for the offence under section 279 IPC for rash and negligent driving and section 304A IPC for causing death of Sunil by rash and negligent driving and section 471 IPC for using fake driving license, to which he pleaded not guilty.
Evidence lead by the prosecution
FIR NO. 263/2012 PAGE 2 Of 17F PAGE
PS Pul Prahladpur
3. The prosecution examined 5 witnesses in prosecution evidence.
4. PW 01 Ct. Rakesh Kumar the sole eye witness to the accident deposed that on the intervening night of 06/07.09.2012 he was on patrolling duty with Ct. Ravi when he noticed one truck/trala bearing no. HR 55 D 8869 plying from the side of Badarpur towards Mehrauli and one motorcycle bearing no. DL 3SC A 3730 also plying on the same road behind the truck. When the motorcyclist tried to overtake from the left side of the truck while the driver of the truck took left turn towards petrol pump, the motorcycle struck against the back portion of the truck/traula and it was dragged to some distance by said truck. PW01 along with Ct. Ravi stopped the offending vehicle and driver of the vehicle was apprehended. SI Nagender and Ct. Suresh reached the spot. SI Nagender made call at 100 number. PCR took the injured to the hospital. IO recorded his statement Ex.PW 1/A and prepared the site plan at instance of PW 01. DL of the injured and accused were seized vide memo Ex.PW 1/B and Ex.PW 1/C. Accused was arrested and his personal search was conducted vide memo Ex.PW 1/D and Ex.PW 1/E.
5. PW 01 was crossexamined by the learned defence counsel wherein he stated that at the place where the accident took place, there were street lights in operation. The accident had happened in front of the petrol pump and he also stated that he had seen the occurrence of the accident in question. He also stated that the offending vehicle had grand the FIR NO. 263/2012 PAGE 3 Of 17F PAGE PS Pul Prahladpur motorcycle as the same had got stuck with the offending vehicle.
6. PW 02 Ashwani Kumar is the registerd owner of truck Traula bearing registration no. HR 55 D 8869. He identified the accused as the driver of his truck. He also identified the offending vehicle from the photographs P1, P2 and its negatives Ex.P3. The superdarinama vide which the offending vehicle had been released was Ex.PW 2/A. He was not cross examined by the learned counsel for the accused despite opportunity.
7. PW03 SI Nagender deposed in tune with the testimony of PW 01 and the prosecution version of the facts. He also deposed that Ct. Vivekanand came at the spot and handed over DD No. 29A to him. PW 03 conducted photography of the spot and sent injured to the hospital through staff of the ERV and Ct. Vivekanand. He recorded statement of the Ct. Rakesh Ex. PW1/A. PW 03 prepared rukka which is exhibited as PW3/A and handed over rukka to Ct. Vivekanand for registration of FIR. PW 03 prepared site plan Ex.PW3/B at the instance of Ct. Rakesh and seized both vehicles vide seizure memo Ex. PW3/C &D, he also seized photocopy of the RC, Insurance and fitness permit from the accused Shiv Dhari Ram vide Ex.PW3/E. PW 03 deposited both the vehicles in the malkhana of the police station and got conducted mechanical inspection of the both the vehicles. Postmortem of the deceased was conducted at AIIMS Trauma Centre and body of the deceased was handed over to his relatives. He FIR NO. 263/2012 PAGE 4 Of 17F PAGE PS Pul Prahladpur recorded their body identification statements and prepared the handing over memo of the dead body which are Ex. PW3/F to Ex. PW3/G. He also got verified documents of offending vehicle and DL of the accused. However, upon verification, DL of the accused it was found fake. PW03 rearrested accused on 31.10.2012 vide memo Ex.PW3/H and personal search of the accused was again conducted vide memo Ex.PW3/I. PW03 recorded disclosure statement of the accused vide Ex.PW3/J and collected result of the Postmortem. PW 03 also conducted investigation regarding the fake DL of the accused. PW 03 identified the offending vehicle from the six photographs attached with the judicial file . All the 6 photographs are Ex.P1 to P6. Fake DL is exhibited vide Ex.P7.
8. In his cross examination PW 02 admitted that he had not seen the occurrence of the accident . However he had seen that the motorcycle was stuck at the rear of the left side of the traulla.
9. PW04 TU Siddiqui deposed that on 10.09.2012 on the request of SI Nagender Nager he had inspected a 14 wheeler Trolla bearing no. HR 55 D 8869 and had also inspected the Bajaj Pulsar Motorcycle bearing no. DL 3 SCA 3730 and had submitted two detailed reports showing the damages in detail vide Ex.PW 4/A and Ex.PW 4/B. PW was not cross examined despite opportunity.
10. PW 5 Ct Vivekanand Chaubey deposed that on 07.09.2012 at about 1:40 AM he received DD Entry No. 29A from the duty FIR NO. 263/2012 PAGE 5 Of 17F PAGE PS Pul Prahladpur Officer and handed over the same to SI Nagender at the spot. SI Nagender handed over the rukka for the registration of FIR to him. After registration of FIR he went back to the spot and handed over the computerized copy of the FIR and original complaint to SI Nagender. He was not cross examined by the learned defence counsel despite opportunity.
11. Statement of accused was recorded u/s 294 Cr.PC wherein he admitted the factum of registration of FIR no. 205/12 Ex.A1, MLC no. 328380 of Sunil Kumar Ex.A2, Postmortem report Sunil Kumar no. TC 625/12 Ex.A3, Application (dated 07.09.2012) to Autopsy Surgeon Ex.A4, Death report dated 07.09.2012 Ex.A5, and computerized FIR no. 262/12 of PS Pul Prahlad Pur Ex.A6 and did not dispute their genuineness in terms of section 294 Cr.PC.
Statement of the accused u/s 313 Cr.P.C
12.All the incriminating evidence led by the prosecution during the trial was put to the accused while recording his statement u/s 313 Cr.P.C. He stated that he was innocent and falsely implicated in this case. He he stated that he had not been driving the offending vehicle at the time of the accident. The offending vehicle was parked at the petrol pump to get it refuelled. He further stated that the deceased was intoxicated when he had been driving his motorcycle and he himself had caused the accident which resulted in his death. He chose to lead defence evidence.
Defence lead:
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13. The accused examined himself u/s 315 Cr.P.C. and also examined by more witness in his defence.
14.DW 01 accused Shiv Dhari Ram deposed that on the day of accident he was going from Badarpur to Mehrauli side and was driving the offending vehicle. He had stopped at petrol pump of Bharat Petroleum near Lal Kuan to get his vehicle refuelled. At about 1.30 at night, suddenly he felt a jerk to his vehicle. He came down and saw that one motorcyclist had hit his vehicle from the back side and was lying at the back. He further deposed that the accident did not take place due to his fault but it was the fault of the motorcyclist himself and that his vehicle was standing still at the petrol pump when the accident took place. In his cross examination he denied the suggestion that the accident had not occurred due to the negligence of the motorcyclist/deceased.
15.DW 02 Awdesh Shukla deposed that he was working at Bharat Petrol Pump, Mehrauli Road, Lal Kuan, New Delhi. On the night of accident in 2012, he was on duty at petrol pump. The vehicle of the accused was standing in queue for taking diesel at the petrol pump. He further deposed that one motorcyclist came at a fast speed and hit the offending vehicle. There was a loud sound and he saw that the motorcyclist had hit the offending vehicle of the accused.
16.In his cross examination he stated that he was working as a helper at the petrol pump in question. He could not remember the registration no. of the offending vehicle i.e. Truck nor could he remember the registration number of the FIR NO. 263/2012 PAGE 7 Of 17F PAGE PS Pul Prahladpur motorcycle. He had also not brought any documents to show that he was in fact employed at the petrol pump.
Decision and Reasons:
17. I have heard the Ld. APP for State and counsel for accused and perused the records of the case.
18. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused.
19. Ld. Counsel for the accused has argued that in the first place itself, the prosecution has been unable to prove that the accused was at all present at the scene of the offence. The testimonies of the only eyewitness cannot be relied upon as he is a police witness and his version of events is incredible. Ld. Counsel has also argued that in any case the prosecution has not been able to prove that the accused has committed any negligence or done any rash act which has resulted in death of the motorcyclist Sunil. The testimony of the police official is doubtful and clearly his testimony is not sufficient to impute rashness or negligence upon the accused. It has also been canvassed by Ld. Counsel that no other public witness has been examined by the prosecution. On these grounds, accused cannot be fastened with criminal liability.
20.Now I proceed to consider the rivalised contentions raised at the bar and independently scrutinize the relevant evidence FIR NO. 263/2012 PAGE 8 Of 17F PAGE PS Pul Prahladpur brought on record.
21.In order to bring accused to justice, prosecution has to prove the necessary ingredients of the offence under sections 279/304A IPC.
22.Firstly, I would embark upon Section 279 of IPC which reads as under :
"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 or injury to any other person, shall be punished with imprisonment 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 both".
304 A IPC : Causing death by negligence - whoever causes the death of any person by doing any rash or negligent act not amount to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.
23. To constitute either of the offences u/s 279 IPC or 304 A 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.
24.For the purpose of this section the manner in which the FIR NO. 263/2012 PAGE 9 Of 17F PAGE PS Pul Prahladpur driving, riding or navigation is performed must be rash or negligent. Negligence was defined in the well known case of Blyth v. Birmingham Waterworks Co.1as:
25.Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinary regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
The Law Revision Committee in 1939 stated Negligence to be failure to exercise due car in a case in which a duty to take care exists. The general concept of reasonable foresight is the criterion of negligence and is fluid in its application. In Balchandra v. State2, negligence has been held to be the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent man would not do.
26.A rash act is primarily an over hasty act and is thus opposed to a deliberate act. The Supreme Court in Mohammad Aynuddin v. State3 has defined a rash act as an overhasty act done without due care and caution. The criminality of a rash act lies in running the risk of doing such an act with recklessness or indifference as to the consequences.
1 (1858) 11 Ex 781 2 AIR 1968 SC 1319 3 AIR 2000 SC 2511 FIR NO. 263/2012 PAGE 10 Of 17F PAGE PS Pul Prahladpur
27. A person driving a motor vehicle is under a duty to be in a position to control it on seeing the peril in front which could normally be expected on the road.4 Before an accused can be convicted of an offence under this section, there must be something more than a mere error of judgment or mere carelessness.5Negligence cannot be inferred from the mere fact of a person having been run over.6 In determining whether a person is negligent or rash, the standard of reasonable care is that which is reasonable to be demanded in the circumstances.
28.In order to bring home the guilt of the accused, prosecution has to prove three aspects, firstly that the accused Shiv Dhari Ram was driving the offending vehicle at the given time and place, secondly that the accused was driving the offending truck in a rash and negligent manner which resulted death of the motorcycle rider and thirdly, that death of the motorcyclist Sunil was result of rashness and negligence of the accused.
29.In so far as the aspect of the vehicle being driven by the accused is concerned, Ld. Counsel has challenged the prosecution stating that the accused was not driving the vehicle when the accident took place. He had parked his vehicle on the petrol pump to get it refueled. It was the deceased who was drunk and he himself caused the accident which resulted in his death and the fact that accused was 4 Jai Bhagwan v. State, 76 (1998) DLT 934 (Del) 5 Prem alias Pannu Sethi v. State, (1983) 1 Crimes 876 (Ori.) 6 Re Pillasan, Weir 1, 232 FIR NO. 263/2012 PAGE 11 Of 17F PAGE PS Pul Prahladpur driving the vehicle at the given time and place has not been proven beyond reasonable doubt by the prosecution.It is his contention that the motorcyclist had hit his vehicle which was parked at the petrol pump on MB Road, near Lal Kuan.
30.However, the site plan shows that the accident had happened on the road infront of Petrol pump, and not on the petrol pump as claimed by the accused. The photographs on record show both the deceased as well as the damaged motorcycle on the road and not on the petrol pump which is at a distance of about 24 feet from the petrol pump as shown in the site plan Ex.PW 3/B. Hence the contention of the accused that his vehicle was parked at the petrol pump and was not on road at the time of the accident is without any substance. Hence, it stands proven beyond reasonable doubt that accused was driving the offending vehicle at the given time and place.
31.With regard to the aspect of death of the motorcyclist Sunil Kumar at the given time and place, same is also admitted by the accused in his statement recorded u/s 313 Cr.PC. During admission denial also, the MLC of the injured/deceased bearing no.328380 Ex.A02, Postmortem report of deceased bearing no. TC 625/12 Ex. A3, Application (dated 07.09.2012) to Autopsy Surgeon Ex. A4 and Death report dated 07.09.2012 Ex. A5 in terms section 294 Cr.PC have been admitted by him. Hence, this aspect also stands proved beyond reasonable doubt as there has not been any serious challenge or dispute on part of the accused on this aspect.
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32.As regards the aspect of rashness and negligence on part of the accused while driving the offending vehicle, the evidence led by the prosecution is as given below:
33.In the present case, PW 01 has deposed that he had seen the motorcycle plying on the same road behind the offending vehicle. When the motorcycle tried to overtake from the left side of the truck, the driver of the aforesaid truck took left turn towards the petrolpump without checking on the vehicles coming from the left side, due to which the rear portion of the offending vehicle hit the motorcycle and the deceased fell down on the road. The motorcycle struck against the offending vehicle and the offending vehicle dragged the motorcycle of the deceased to some distance. The offending vehicle was stopped by PW 01 who found that it was being driven by the accused whom he identified in the court.
34.The photographs on record Ex.P1 to Ex.P6 show the body of the deceased lying towards left side of the road in corroboration to the testimony of PW 01. The mechanical inspection report of the offending vehicle Ex.PW 4/A shows that the front left and right side of the corner indicators were damaged. It is also important to note that the rear back and side lights were 'not fitted'. The time of incident is 1.30 a.m. The mechanical inspection report of the motorcycle Ex.PW 4/B shows that it had been damaged to such an extent that it was declared 'off road' by the mechanical inspector.
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35.Copy of reply sent by the registring authority Alwar (Rajasthan) with regard to the driving license of the accused shows that the same has not been issued by the said authority. The accused in his disclosure statement Ex.PW 3/J had admitted that he was not having valid driving license on the date the accident took place and that he had got a fake driving license issued by paying Rs.350/ to a unknown person and also that he had been driving vehicles by using the fake driving license for a period of about 3 years before the date of accident. The said fact has not been challenged by the accused nor has the Ld. Counsel for the accused cross examined PW03 on this aspect despite his testimony to the fact of possession of fake driving license by the accused. In fact, the possession of fake driving license by the accused on the date of the accident has never been disputed by the Ld. Counsel for the accused.
36.PW 01 has also stated that street lights were working at the time when the accident took place. Photographs on record also show that street light were in working condition.
37.As regards the defence led by the accused by examining himself u/s 315 Cr.PC, the same is at best self serving for the accused who claims that accident had taken place due to fault of the deceased who was intoxicated at the time of the accident and had hit his truck with his motorcycle at the petrol pump where the offending vehicle was parked. The same is not believable in light of testimony of other prosecution witnesses, as well as, DW2 Avdesh Shukla.
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DW02 had stated that he worked at the petrol pump where the accident took place. However, he could not even depose with regard to the make of the motorcycle of the deceased, let alone its registration number. He could not produce any documents showing that he was in fact employed at the above said Petrol Pump. He could not even tell the date or even the year when the accident in question took place. He stated in the court that at the time of accident one motorcyclist had come at a fast speed and had hit against the offending vehicle. However, the same does not explain why the photographs on record or the site plan shows that the accident had happened on the road and not at the petrol pump as claimed by the accused or the witness DW02. The accused has also stated in his statement u/s 313 Cr.PC that the deceased was intoxicated when he hit his bike against the offending truck, however, neither the MLC nor the postmortem report show any idication or any trace of alchol in the blood stream of the deceased.
38.Hence, from the aforesaid discussion on the evidence led by the prosecution, it stands clear that the offending vehicle was being driven by the accused himself and was on the road and not parked on the petrol pump as claimed by the accused. Its rear and back lights were not working at the time of accident which is 1.30 a.m. The street light were working and after the accident, the motorcycle of the deceased was found to be not fit/off road. It is also evident that the accused was driving the aforesaid vehicle while carrying a fake driving license, a fact which has not been dispute by the Ld. Counsel for the FIR NO. 263/2012 PAGE 15 Of 17F PAGE PS Pul Prahladpur accused.
39.All these facts become relevant when rash or negligent driving is to be established and are sufficient to establish the case of the prosecution.
40.In order that a person may be guilty under Section 304A IPC, rash and negligent act should be the direct or a proximate cause of the death. To bring home an offence under this section, it must be proved beyond reasonable doubt by the prosecution that the death of the victim was the direct result of rashness or negligence on the part of the accused. The prosecution has proved beyond reasonable doubt that the accused was driving the offending vehicle at the time when the accident took place. It also stands proved beyond reasonable doubt that deceased Sunil Kumar died as a result of this accident with the offending vehicle driven by the accused and it is also proved beyound reasonable doubt, after appreciation of all the aforesaid evidence led by the prosecution in this regard that the accused had driven the offending truck in a rash and negligent manner due to which said accident took place and motorcyclist Sunil Kumar expired.
41.Since, the possession of fake driving license by the accused at the time of the accident has not been dispute by him at any stage of the trial including the stage of final arguments, it also stands proved beyond reasonable doubt that accused was using a driving license which was found to be a fake and he FIR NO. 263/2012 PAGE 16 Of 17F PAGE PS Pul Prahladpur was using the same with the knowledge that it was a fake license.
42.For the above stated reasons, accused Shiv Dhari Ram is held guilty for the offences punishable under section 279/304A/471 IPC and stands convicted for the said offences.
43.Let arguments be heard on the point of sentence.
Announced in the Open (ARCHANA BENIWAL)
Court on 17.07.2015 Metropolitan Magistrate (SouthEast)08
Saket Courts, Saket New Delhi
FIR NO. 263/2012 PAGE 17 Of 17F PAGE
PS Pul Prahladpur