Delhi District Court
Fir No. 396/02 State vs . Vikram Singh Mehto Page No. 1/14 on 9 May, 2022
IN THE COURT OF SHRI AJAY SINGH PARIHAR,
METROPOLITAN MAGISTRATE : NORTH WEST-05,
ROHINI COURTS, DELHI
FIR No. : 396/02
P.S. : Mangolpuri
Case No. 535864/16
State
Vs.
Vikram Singh Mehto
S/o. Sh. Inder Dev Mehto
R/o. RZ-30A/271, Sagarpur,
Hans Park, Delhi.
Date of institution of case : 01.11.2002
Date of reserving the judgment : 08.04.2022
Date of pronouncement of judgment : 09.05.2022
JUDGMENT
1. S. No. of the Case: 535864/16 2. Date of Commission of Offence: 04.06.2002 FIR No. 396/02 State Vs. Vikram Singh Mehto Page No. 1/14 3. Date of institution of the case: 01.11.2002 4. Name of the complainant: Ct. Rameshwar Lakra 5. Name of the accused: Vikram Singh Mehto 6. Offence complained of : 279/304A IPC 7. Plea of Accused: "Not Guilty" 8. Final Order: Convicted 9. Date of Final Order: 09.05.2022 BRIEF FACTS AND REASONS FOR DECISION
1. Succinctly, the facts of the case as per prosecution are that on 04.06.2002 at around 3:15 A.M., the accused was driving vehicle bearing registration No. HR38D 0801 in a rash and negligent manner and caused death of one handicapped rikshaw person namely Shyamlal @ Kalu. After completion of investigation, charge sheet against accused was filed in the Court under section 279 & 304-A Indian Penal Code 1860 (hereinafter referred to as IPC).
2. Cognizance of the offence under Section 279 and 304A IPC was taken and the copy of the charge sheet & relevant documents were supplied to accused in compli- ance of Section 207 Code of Criminal Procedure 1973 (hereinafter referred to as Cr.P.C).
FIR No. 396/02 State Vs. Vikram Singh Mehto Page No. 2/143. Prima facie case was made out and notice for the offence under Section 279 & 304A IPC was framed against the accused to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed up for recording of prosecution evidence.
4. In order to prove its case, the prosecution has examined ten witnesses.
PW-1 Smt. Charanjeet Kaur has deposed that she does not remember the date, but on the day at about 5/5:30 AM, accused came to her residence and told that accident had occurred with vehicle (Swaraj Mazda) which has been seized by the po- lice, whereupon, she went to PS Mangolpuri alongwith accused, where she claimed herself as the registered owner of the said vehicle and she produced the accused be- fore the police. She has further deposed that she was served with the notice u/s. 133 M.V. Act Ex.PW1/A, whereupon, she replied that on the date and time of the accident in question accused was driving the said vehicle, accused present in the Court on that day was correctly identified by PW-1. PW-1 deposed that the vehicle was got re- leased on superdari vide superdarinama Ex.PW1/B. Thereafter, permission was sought to put leading questions by Ld. APP with re- gard to the registration number of the vehicle as HR38D 0801. PW-1 further proved the photographs of the offending vehicle Ex.P1 and Ex.P2.
This witness was not cross-examined by ld. Defence counsel despite grant of an opportunity in this regard.
PW-2 Basanti Devi, PW-3 Smt. Kusum Devi and PW-4 Sh. Ashok Kumar have deposed that on 10.06.2002 they reached at PP Dost at Bhagya Vihar where they identified the clothes and photographs of deceased son Shyam Lal and deceased hus-
FIR No. 396/02 State Vs. Vikram Singh Mehto Page No. 3/14band Shyam Lal by photographs which were shown to them by police. Their state- ments Ex.PW2/A, Ex.PW3/A and Ex.PW4/A were recorded by police.
These witnesses were cross-examined by Ld. Defence counsel except PW-4.
PW-5 Dr. Sameer Pandit has deposed that he conducted the postmortem on the dead body of unknown person, male and the body was sent by ASI Azad Singh with report No. 349/02 and in his opinion, the cause of death was respiratory embar- rassment as a result of injury to the spine of cervical region as a result of road side ac- cident. As per PW-5, all the injuries were anti-mortem in nature and of same duration and time since death was 12 hours. PW-5 proved postmortem report as Ex.PW3/A. This witness was not subjected to cross-examination despite grant of an oppor- tunity in this regard.
PW-6 HC Ramesh Lakra has deposed that on 03/04.06.2002, in the night, he was on patrolling duty in the area of West Enclave Pitampura and at around 3.15 a.m when he was present at Pitampura police line chowk, at a distance of 100 yrds from PP Dost outer ring road, he saw a Swaraj Mazada tempo bearing no. HR-38-D-0801 coming from the side of Deepali chowk in a fast speed and driven by driver in rash and negligent manner. PW-6 further deposed that while driving the said Swaraj Mazada, accused hit a handicapped rickshaw person from back side, as a result of which, the said person fell down and PW-6 rushed towards him. The driver of said tempo also stepped down and came to the injured but the said injured was already ex- pired and after seeing the same, driver of tempo ran away from the spot. PCR and CATS ambulance also reached there and ASI Azad Singh and Ct. Rajesh also reached there from PP Dost. ASI Azad recorded statement of PW-6 as Ex.PW6/A. Rukka was prepared on complaint of PW-6. Rukka was handed over to Ct. Rajesh for registration FIR No. 396/02 State Vs. Vikram Singh Mehto Page No. 4/14 of FIR, who went to the PS for registration of FIR. Ct. Rajesh returned on the spot and handed over original rukka and copy of FIR to ASI Azad. Rough site plan of the spot was prepared by ASI Azad Singh at instance of PW-6. Same is Ex PW6/B. PW-6 further deposed that tempo and rickshaw were seized, photographs were taken, same were marked as mark A collectively. The dead body was sent to SGM Hospital in a private tempo, case property were deposited with MHC(M). Later on accused Vikram Mehto surrendered in PP Dost and he was arrested at instance of PW-6 vide arrest and personal search memos Ex.PW6/C and Ex.PW6/D. PW-6 correctly identi- fied the accused Vikram Mehto present in the court on that day. DL of the accused was seized vide memo Ex.PW6/E. PW-6 correctly identified the photographs of the handicapped rickshaw and of- fending vehicle and photographs of deceased handicapped rickshawala and state that the said offending vehicle hit the handicapped rickshaw person on the day of the inci- dent which were Ex. P-1 to P2 and handicapped rickshaw was Ex. P-3 and photo- graphs of the deceased was Ex. P-4.
PW-6 was cross-examined by Ld. Defence counsel at length.
PW7 Sh. Rakesh deposed that on 04.06.2002, he was having a shop of Pho- tographer with the name of R.S. Photo Studio at N-72, Mangol Puri and on that day, he was called to the spot by the IO, where he took 8 photographs which are Ex.P1 to P8. PW-7 gave the above said developed copies of photographs to the 1O later on.
PW-7 was cross-examined by Ld. Defence counsel.
PW8 Retired SI Dharampal being the duty officer has deposed that on 04.06.2002, he was working as Duty officer and his duty hours were from 01:00 AM FIR No. 396/02 State Vs. Vikram Singh Mehto Page No. 5/14 to 09.00 AM. On that day, Ct. Rajesh brought original rukka sent by ASI Azad Singh. This witness proved the copy of the FIR Ex. PW-8/A and endorsement on the original rukka vide Ex. PW-8/B. After registration of the FIR, PW-8 handed over the FIR and original rukka to Ct. Rajesh to be sent to ASI Azad Singh.
PW-8 was cross-examined by Ld. Defence counsel.
PW9 Retired SI Azad Singh has deposed that on 04.06.2002, he was posted as ASI in PP Dost, PS Mangol Puri and on that day, DD No. 7 PP was received by him, upon which he alongwith Ct. Rajesh went to the spot i.e. about 100 metres from traffic signal at Outer Ring Road, Near Police Line. At the spot, he saw that one bro- ken rickshaw (used by handicapped persons) was lying and one vehicle bearing regis- tration no. HR-38D-0801 was parked. Dead body of a Hindicapped person was also lying at the spot, where, PW-9 met with Ct. Rameshwar Lakra, who was eyewitness of the accident. PW-9 recorded statement of Ct. Rameshwar Lakra i.e. Complainant which is already Ex.PW6/A. PW-9 further deposed that after accident accused driver fled away from the spot before his arrival. PCR van and CATS ambulance also came at the spot, officials of ambulance declared injured as dead. PW-9 prepared one tehrir which is Ex.PW-9/A and handed over to Ct. Rajesh for registration of FIR. PW-9 pre- pared siteplan at the instance of complainant which is already Ex.PW6/B. Broken rickshaw was seized vide seizure memo Ex.PW-9/B, offending vehicle i.e. tempo was seized vide seizure memo Ex.PW-9/C. Photographer was called at the spot and he took photographs of the spot which are already Ex. P1 to P8. PW-9 further deposed that identification of deceased could not be established and dead body was taken to SGM Hospital by him, where dead body was got preserved for 72 hours and PW-9 made proclamation vide advertisement regarding the unidentified dead body which are Ex. PW-9X. He prepared notice under Section 133 Act Ex.PW 9/D but notice could not be served to the owner. PW-9 talked with the owner on mobile phone writ- ten on the offending vehicle and next day i.e. on 05.06.2002, owner of the abovesaid FIR No. 396/02 State Vs. Vikram Singh Mehto Page No. 6/14 offending vehicle PW1 Smt. Charanjeet Kaur alongwith driver of offending vehicle came to PS and notice received by her and she gave reply to the notice. PW-9 de- posed that he arrested accused Vikram vide arrest memo already Ex.PW 6/C after his personal search vide memo Ex.PW6/D. Driving licence of the accused was also seized vide memo already Ex.PW 6/E. Before arrest accused/ driver was got identi- fied by complainant. Accused was released on police bail and after completion of ini- tial time of 72 hours, dead body was again preserved for next 72 hours. PW-9 further deposed that as no relative of deceased came therefore, postmortem of dead body was done and after postmortem, dead body was cremated with proper rituals. PW-9 de- posed that after completion of the rituals of dead body when he came back to PP, rela- tives of deceased present in PP identified the clothes and photographs of the de- ceased. Statements of the relatives regarding identification of the deceased were recorded by PW-9 which are already Ex.PW4/A, Ex.PW2/A and Ex.PW-3/A. PW-9 prepared identification report as Ex.PW9/E. Further, PW-9 received postmortem re- port of the deceased already Ex.PW5/A. Thereafter PW-9 was transferred from PS Mangolpuri and he deposited file with MHC (R) of PS Mangolpuri. PW-9 correctly identified the accused present in the court on that day. PW-9 further correctly identi- fied the photographs already Ex.P-1 to Ex.P-8.
This witness was duly cross-examined by Ld. Defence counsel.
PW-10 Inspector Vimal Kumar has deposed that on 09.08.2002, further in- vestigation of the present case was marked to him and he prepared chargesheet of the present case and filed before the concerned court.
This witness was not subjected to cross-examination despite grant of an oppor- tunity in this regard.
FIR No. 396/02 State Vs. Vikram Singh Mehto Page No. 7/145. Vide separate statement, accused submitted that he shall not dispute the FIR No. 396/02, DD No 7 PP Dost PS Mangol Puri and DD No. 7B PS Mangol Puri. Ac- cused further stated that he shall not dispute the postmortem report no. 349/02 and mechanical inspection repont of tempo bearing No. HR38D 0801 during trial. Ac- cused has admitted all the aforesaid documents.
6. Thereafter, PE stands closed. Statement of accused u/s. 313 Cr.P.C recorded. Accused did not wish to lead defence evidence, hence, final arguments were heard.
7. On one hand Ld. APP has argued that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt and accused persons be convicted.
8. On the other hand, defence counsel for accused has argued that no public wit- ness was joined during investigation. That helper of the offending vehicle was not made witness. That it is not known who parked the offending vehicle on the side of road. It is argued that prosecution story is filled with lacunae and the accused de- serves to be acquitted.
9. Having dealt with the submissions advanced by both the sides, I proceed to ad- judicate upon the most important question involved in the present case: whether the accused is guilty of the offence with which he is charged or not.
FIR No. 396/02 State Vs. Vikram Singh Mehto Page No. 8/1410. In order to bring home the guilt of the accused in a case of accident by rash and negligent driving, what prosecution has to prove is that the accused was driving the vehicle in question at the time of accident, the driving was rash and negligent and the death of the deceased took place pursuant to such accident. The prosecution has to prove all these ingredients in order to succeed.
11. As far as the first ingredient regarding the identity of the accused is concerned, there is sufficient evidence to this effect. It is in the form of testimony of PW 6 HC Rameshwar Lakra. PW6 has stated in the compliant as well as in his examination in chief that accused driver came to him after the accident. In his cross-examination PW6 stated that he saw driver of the tempo vehicle from a distance of around 15 feet and that driver of the tempo was driving the vehicle in zigzag manner and in a high speed. It is further stated by PW6 that the said tempo hit the handicapped rickshaw. During cross-examination not even a single suggestion has been made regarding the identity of the accused driver. PW6 has withstood the cross examination. Further PW1 also stated in her examination in chief and in notice under section 133 MV Act Ex. PW 1/A that on the date of incident accused driver was driving the offending ve- hicle. From the above facts it can be safely concluded that the identity of the accused driver has been established and therefore the first ingredient stands fulfilled.
12. Now I come to the second requirement of rash and negligent driving. The ac- cused has controverted this issue by saying that he was not driving his vehicle in a rash and negligent manner. It is also argued on his behalf that there is no evidence to prove that he caused the death of the deceased.
FIR No. 396/02 State Vs. Vikram Singh Mehto Page No. 9/1413. Rashness and negligence in a case involving a death by negligent driving was explained by Hon'ble Supreme Court of India in Rathnashalvan Vs. State of Kar- nataka, (SC) 2007 AIR (SC) 1064 wherein it is held that; "Section 304A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Section 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the ac- cused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. As noted above, "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The crimi- nality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence 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 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."
FIR No. 396/02 State Vs. Vikram Singh Mehto Page No. 10/1414. Negligence is a tort as well as a crime and can be used for the purpose of fas- tening the defendant with the liability under the Civil law and at times under the criminal law. To fasten the liability in criminal law, the degree of negligence has to be higher than that of negligence to fasten for damages in civil law. The essential ingre- dients of mens rea cannot be excluded from the consideration when the charge in a criminal Court consist of criminal negligence. In order to hold the existence of crimi- nal rashness or or criminal negligence, it shall have to be found out that the rashness was of such a degree as to amount to having a hazard, having that the hazard was of such a degree that the injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequence.
15. In the present case there is only one eye witness who was examined as PW6. PW6 during his examination in chief stated that he was on patrolling duty on the fate- ful night and that around 3:15 AM he saw offending vehicle coming from the side of Deepali Chowk. PW6 further stated that the said vehicle hit handicapped rickshaw from the backside and caused death of the rider of the rickshaw. PW6 correctly iden- tified the accused driver. During cross-examination PW6 remained firm and in fact he stated that he saw driver of the offending vehicle from a distance of 15 feet. It has been argued by Ld. counsel that no public person was joined in the investigation. As per the complaint and the statement the incident took place at 3:15 AM. At such hour public witness cannot be expected to be roaming around on the road whereas police officials do patrolling duty at such hours, hence I do not find force in the argument of the Ld. council. Ld. counsel has argued that prosecution did not examine the helper of the said offending vehicle and since the helper was not examined the testimony of PW6 becomes unreliable and conviction can be based on account of single witness. I am unable to accept the argument of Ld. counsel as it is not required to examine infi- nite number of witness to prove certain fact rather it is the quality of testimony of FIR No. 396/02 State Vs. Vikram Singh Mehto Page No. 11/14 witness which matters. I have perused the evidence of PW6 HC Rameshwar Lakra and I find that the same quite consistent, truthful and credit worthy and corroborated by other evidence. This witness has withstood the cross examination and there is nothing in it which can impeach his credit or discard his testimony or to doubt their veracity. Now, this witness has deposed about the date of incident correctly, the man- ner in which the incident occurred and his presence at the spot is proved and there- fore, in view of the aforesaid evidence and judgment cited above, this is sufficient to come to the conclusion that the act of the accused in hitting from behind amounts to rash and negligent act. Therefore there is no doubt that the accused has hit the handi- capped rickshaw from behind. Hitting any vehicle from behind raises a presumption of negligence and rashness because vehicle in front do not have any contributory neg- ligence unless otherwise proved.
16. In similar kind of case before Hon'ble High Court of Delhi in Paras Nath Vs. State of Delhi Hon'ble Court has upheld the conviction observing in the similar kinds of facts that; "I am not in agreement with the submissions of Ld. Counsel for the ap- pellant merely because the witness did not use the word rashness or negligence in his testimony and instead used the word high speed, cannot be taken that the appellant was not driving the vehicle in a rash and negligent manner. What is important is to find out if the driver of the offending vehicle was driving in public place rashly and in negligent manner so as to endanger human life or put forward to cause hurt or death to any other person. In the case, in hand the appellant hit the scooterist from behind. It is not the case of appellant that the scooterist had applied break all of a sudden and therefore, the appellant was taken unaware which lead the appellants truck hitting the scooter from behind. Act of negligence can be clearly attributed to the petitioner in this case as he is solely responsible for causing this accident without any fault of the scooter. Rashness or negligence can be taken from the manner in which the accident had taken place. Even the site plan prepared by the investigator which was Ex.PW5/C FIR No. 396/02 State Vs. Vikram Singh Mehto Page No. 12/14 speaks about the negligence attributed to the petitioner. The appellant also admitted in his statement u/s 313 CrPC that accident had taken place with his truck but denied that it was due to negligent and rash driving on his part because the offending vehicle in the case cited above hit from behind, the conviction was upheld". Hitting from be- hind raises a presumption of rashness as no fault can be attributed to the other vehicle unless otherwise proved. The accused has raised a plea in his examination u/s 313 CrPC that the accident was not caused by him but has not led any evidence to support his plea. The accused has not even examined himself in defence evidence and made available himself for cross examination on behalf of the State. Therefore, this plea of the accused went unproved by any kind of evidence. The accused as per testimony of PW 6, was driving a vehicle in a public place in a high speed. It appears that he was not in control of his vehicle and hit the handicapped rickshaw that it was dragged for 5-7 feet. It is a common principle that while driving a vehicle like a heavy vehicle the driver of that vehicle should be very careful because the nature of the vehicle is such that if not in control , it can turn into a monster with huge causalities.
17. Not only this, the mechanical inspection report of offending vehicle which was admitted by the accused clearly shows that the offending vehicle had fresh damage on front left side indicator and front left side bumper.
18. Now after having decided the fact that the accused was driving the offending vehicle and that too in a rashly and negligently manner, the next question to be de- cided by the court is as to whether as a result of such rashness and negligence on the part of the accused, he rendered himself liable for the offence punishable U/s 304A IPC or not. PM report which was admitted by the accused mentions the cause of in- jury and the cause of death stated to be respiratory embarrassment as a result of injury to the spine of the cervical (neck) region as a result of road side accident. All injury FIR No. 396/02 State Vs. Vikram Singh Mehto Page No. 13/14 are antemortem and same duration. Hence, in these circumstances it can be very well stated that the accused has caused the death by doing a rash or negligent act not amounting to culpable homicide covered within the definition of Section 279/304A IPC.
19. Accordingly, in view of the above discussion, the court has come to the conclu- sion that on 04/06/2002 accused was driving the offending vehicle in a rash and neg- ligent manner and as a consequence hit the handicapped rickshaw. Further more on account of such rash driving and hitting the handicapped rickshaw caused the death of the rider of the said rickshaw. Hence, the accused has committed the offences pun- ishable U/S 279/304A IPC. He is accordingly, convicted for the said offences.
Digitally signed by AJAY SINGH AJAY SINGH PARIHAR PARIHAR Date: 2022.05.10 05:09:45 +05'30' Announced in open Court (AJAY SINGH PARIHAR) on 9th day of May, 2022 Metropolitan Magistrate North West-05, Delhi FIR No. 396/02 State Vs. Vikram Singh Mehto Page No. 14/14