Delhi District Court
State vs . Mangal Ram on 8 August, 2018
Page No. -1- of 18
IN THE COURT OF SH. BHUPINDER SINGH : ACMM01(CENTRAL)
TIS HAZARI COURT, DELHI .
State Vs. Mangal Ram
FIR No. : 16/2011
P.S. : Paharganj
U.S. : U/s. 279/ 304A IPC and 3/181
and 146/196 MV Act
J U D G M E N T
a. Sl. No. of the case and : 293591/16
date of its institution
b. Name of the complainant : Ct. Pardeep
c. Date of commission of
offence : 13.2.2011
d. Name of the accused : Mangal Ram S/o Sh.Suraj Bali
R/o : H. No. 79/30 Arambagh Paharganj
Delhi.
e. Offence complained of : U/s 279/304A IPC
f. Plea of accused : Pleaded not guilty
g. Arguments heard on : 8.8.2018
h. Final order : Convicted 279/304A IPC and 3/181
MV Act and 146/196 MV Act
i Date of such order : 8.8.2018
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1.Briefly stated, accused Mangal Ram has been sent to face trial FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -2- of 18 with the allegations that on 13.2.2011 at about 9:15 Pm at Service road, opposite Nootan Marathi School, Aaram Bagh, within the jurisdiction of PS Paharganj, accused was driving the vehicle bearing bearing no. DL 9SA6478 in a rash and negligent manner so as to endanger human life and personal safety of others in a public way and while driving so, hit against one pedestrian Radhey Shyam and thereby causing his death. On these avernments, accused is alleged to have committed offences U/sec. 279/304A IPC. It is further the case of prosecution that accused driving the aforesaid scooter without any valid driving license and without being insured and thereby alleged to have committed offences u/s 146/196 and 3/181 MV Act.
2. After completion of the investigation, the charge sheet was filed in the Court by the investigating agency. Accused was summoned and on appearance of accused, copies were supplied to him. Thereafter a formal notice u/s. 251 CrPC for offences u/s. 279/304A IPC & 146/196 and 3/181 MV Act was served against accused to which he pleaded not guilty and claimed trial.
3. In support of its case, prosecution examined nine (9) witnesses.
4. PW1 Bansi Lal is the witness to the dead body identification. His identification statement Ex. PW 1/ A and handing over memo of dead body Ex. PW 1/ B. He was not cross examined despite opportunity.
5. PW2 Ct. Rajesh Kumar deposed that on 13.2.2011 he was on FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -3- of 18 emergency duty and at around 10pm, he received DD no. 79 B regarding an accident, that duty officer directed him to hand over the said DD to SI Amrish Giri, he took the said DD to spot where he handed over the said DD to SI Amrish. During his crossexamination he denied the suggestion that he did not take the aforesaid DD to Nutn Matathi School to hand over the same to SI Amrish.
6. PW3 HC Dewan Singh is the duty officer who proved the FIR Ex PW 3/B and his endorsement on rukka Ex PW 3/A. He also handed over certificate u/s 65B of Indian Evidence Act Ex. PW 3/C. He was not cross examined despite opportunity.
7. PW4 Ct. Prashant deposed that on 13.2.2011 he was posted at PS Paharganj and on that day IO received DD no. 79 B from Ct. Rajesh and thereafter he alongwith IO reached at LHMC hospital where IO collected MLC of injured Mangal Ram and MLC of unknown person, that he alongwith IO came back to spot where they found one LML scooter bearing no. DL9SA6478 in an accidental condition and blood stain on the road, that IO took the photographs, IO prepared rukka Ex. PW 3/ A and got FIR registered through him, that IO seized abovesaid scooter vide memo Ex. PW 4/A, that IO recorded his statement . During his cross examination he deposed that IO did not record the statement of any witness including any injured before registration of FIR.
8. PW 5 Ct. Pawan deposed that on 7.4.2011 he was posted at PS FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -4- of 18 Paharganj and on that day he alongwith IO SI Indraj Singh visited Tihar Jail , where IO arrested accused Mangal Ram vide arrest memo Ex. PW 5/A . He was not cross examined despite opportunity.
9. PW 6 Smt Misro deposed that on the day of incident at about 7 or 8:00 pm, accused Mangal Ram came on his scooter from the side of PS Paharganj and he was driving his scooter in fast speed and negligent manner and while driving so the accused struck the scooter against one pedestrian, that accused could not control his scooter, that the injured was dragged by the scooter due to the accident, that the pedestrian and accused fell down and received injuries, that the pedestrian received head injury and tooth of accused was broken due to the accident, that accused Mangal took the injured to hospital by auto, that the scooter of the accused remained on the spot, that her statement Ex. PW 6/A was recorded by the Ld MM. She correctly identified accused and photographs of scooter. She further deposed that she known to accused as he resides in his neighbour. During her cross examination she deposed that she had seen the accident but does not remember as to whom the said accident occurred and she does not remember due to lapse of time. She further deposed that the area was properly lit because of bulb and she cannot see the accident and the accident occurred involving a scooter but she cannot identify the accused.
The witness was crossexamined by Ld. APP with the permission of court, wherein she accepeted that she did not remember some material points due to lapse of time.
FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -5- of 18
10. PW 7 Harpreet Singh deposed that he is the registered owner of the scooter no. DL 9SA6478 and on 8.2.2001 he sold his scooter to one Rajan Dhingra and on 14.4.2011 police officials from PS Paharganj gave him notice u/s 133 MV Act and he gave his reply vide Ex. PW 7/A . He was not cross examined despite opportunity.
11. PW 8 SI Amrish deposed that on 13.2.2011 , he was posted as SI at PS Paharganj and on that day on receipt of DD entry no. 79 B Ex. PW 8/A he alongwith Ct. Parshant went to LHMC hospital where he received the MLC of accused Mangal and one other MLC of unknown person both were unfits for statement, that he returned to the spot where he found one LML scooter bearing no DL9SA6478 in accidental condition on service road, that he took photographs of spot, that he prepared rukka on DD entry no. 79 B Ex. PW 8/ B and handed over to Ct. Parshant for registration of FIR, that after registration of FIR Ct. Parshant returned to spot and handed over copy of FIR and original rukka to him, that he prepared site plan Ex. PW 8/ C at his instance, that he seized scooter vide memo Ex .PW 4/ A , the MLC of said scooter / offending vehicle was conducted vide memo Ex., PW 8/ D, that he recorded statement of Ct. Parshant and mechanical inspector on 14.2.2011. he further deposed that on 15.2.2011 he went to house of accused Mangal Ram and collected RC and delivery receipt of offending vehicle i.e scooter and same was seized vide seizure memo Ex. PW 8/E . he deposed that on 17.2.2011 the injured persons who was identified as Radhey Shyam was expired during the FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -6- of 18 treatment, handing over memo of dead body Ex. PW 1/B . he correctly identified accused and photographs of offending vehicle as Ex. A1 to A8. During his cross examination, he deposed that the scooter was having a pillion rider and the rider as well as deceased had received serious injuries .
12. PW 9 Dr. Mukesh Kumar conducted post mortem of deceased Radhey Shyam vide his report Ex. PW 9/A. He was not cross examined despite opportunity.
13. Record transpires that during the course of trial, vide separate statement recorded u/s. 294 CrPC, accused Mangal Ram admitted the genuineness of FIR Ex. A1, MLC of victim Ex. A2 , MLC of accused Ex. A3 , mechanical inspection report Ex. PW 8/ D ( and now Ex. A4) and TIP proceedings Ex. A5. Therefore the above said documents were directed to be read into the evidence without its formal proof in terms of section 294 Cr.P.C.
14. PE was closed by order of this court on 31.1.2018. Statement of accused was recorded U/sec. 313 Cr.P.C. wherein he stated that he did not commit any offence and he was falsely implicated. The accused did not lead any defence evidence in his favour.
15. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -7- of 18
16. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be.
17. The accused in the present case has been charged with offence under Section 279/304A IPC. To prove the case against the accused the prosecution was required to prove the following facts:
A. The identity of the accused being the driver of the offending vehicle;
B. That the accused caused the accident by his rash or negligent driving at a public place;
C. That the rash or negligent driving of the accused resulted in the death of the deceased.
THE IDENTITY OF THE ACCUSED
18. In the case at hand, accused has denied that the accident occurred with his scooter. As per the prosecution, the driver of the offending scooter was not found at the spot and only the scooter bearing no. DL 9SA 6478 was found on the spot in an accidental condition. The scooter was seized vide seizure memo Ex. PW 4/ A dt.14.2.2011 i.e FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -8- of 18 very next day of accident which had taken place in late hours of 13.2.2011. As such the factum of recovery of the scooter on the spot stands proved. The IO had seized the RC and delivery receipt of the scooter from the accused vide memo Ex. PW 8/ B , which has been signed by the accused only. Notice u/s 133 MV Act was served upon the registered owner Sh.Harpreet singh who was also examined as PW7. He proved his reply to the notice as Ex. PW 7/ A wherein he had stated that he had sold of the same to the accused on 30.1.2011 . The delivery receipt dt. 30.1.2011 bearing signature of accused as buyer has also placed on record . The had not disputed the said documents and no cross examination of PW 7/ Sh. Harpreet Singh has been conducted. Since the accused was not found on the spot on the day of the incident , an application for conducting his TIP proceedings was moved by IO , same is Ex. A5. However the accused refused to participate in the same stating that witness known to him since childhood. The accused was also identified by PW 6 Smt Misro, in her statement dt. 5.10.2015 and no cross examination of her was conducted on that day. She was recalled for cross examination on 26.7.2018 wherein she deposed that she cannot identify the accused but vol. To say that since much time has lapsed since the day of accident, as such she cannot identify the accused. She admitted that she not able to remember some material particulars due to lapse of time. As such her testimony regarding identity of the accused which remained unchallenged on the day of her initial deposition cannot be doubted, more so in view of the refusal of the accused in TIP proceedings. Further, no complaint of his false implication was ever FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -9- of 18 made by the accused to any authority.
19. Hon'ble GAUHATI HIGH COURT in Niranjan Sutradhar v. State of Tripura, (Gauhati) 2006 CriLJ 3262 has held as under : " From what have been pointed out above, it is abundantly clear that the vehicle No. TRL1489 came at a high speed and the same knocked down P.W. 4 causing injuries on his person as indicated herein above. The question, now, is as to who the driver of the said vehicle, at the relevant point of time was ? In this regard, it is noteworthy that P.W. 6, who is, admittedly, the owner of the said vehicle, has given evidence to the effect that it was the accused, who had been engaged by him as a driver of the said truck and that on the day of the occurrence, it was the accused, who had taken out the vehicle from the house of P.W.
6. Thus, in the absence of anything showing to the contrary, it is abundantly clear that the vehicle, in question, was, at the relevant point of time, driven by the accusedpetitioner, for, had someone, other than the accusedpetitioner, driven the said vehicle, it was within the special knowledge of the accusedpetitioner and he had the onus to show that not he, but someone else had driven the vehicle at the relevant point of time. Thus onus has not been discharged by the accused petitioner".
20. The accused has no where stated that the said scooter does not belong to him. He had to explain as to why his scooter was found on the spot in an accidental condition and the reasons for the damage caused to it. The MLC of accused Ex. A3 is also on record which was conducted on the day of incident at 9:55pm i.e just after the accident occurred, which proves his presence on the spot. In absence of any evidence and the fact that the testimony of PW7 has gone FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -10- of 18 unrebutted, there remains no dispute regarding the identity of the accused as the one who was driving the scooter on the fateful day.
RASHNESS OR NEGLIGENCE
21. Having resolved the issue of identity now, we move on to the issue of culpable rashness and negligence.
22. In Idu Beg, (1881) 3 All 776 which has become locus classics, it was held that "Criminal rashness" is hazarding a dangerous or wanton act with the knowledge that it is so, and 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 or indifference 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 into 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".
23. In view of the above settled law now the question arises for consideration is that as to whether the prosecution has been able to prove the rashness or negligence on the part of accused in causing accident.
24. In the case at hand, the prosecution has projected PW 6 Smt FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -11- of 18 Misro as the star witness to depose about the rashness and negligence of the accused while driving the offending vehicle. Ld. Counsel for the accused has argued that he is a planted witness and as such her testimony cannot be relied upon. It is submitted by him that the prosecution has failed to prove the rashness and negligence of the accused if the testimony of PW6 Smt Misro is not considered.
25. As per the prosecution, the PW Smt Misro who was running a tea Kiosk in the vicinity in the place of accident and has witness the same. The said witness in her statement before the court on 5.10.2015 had deposed that on the day of incident at about 7 or 8 pm when she was present at her shop , the accused came on his scooter from the side of Paharganj PS in a fast speed and negligent manner and stuck against one pedestrian due to which the pedestrian was dragged and the accused also fell down, due to which both received injuries . No cross examination of her was conducted on that day till she was recalled for her crossexamination on 26.7.2018 . Even then no crossexamination was conducted on the point of rashness and negligence of accused . In her crossexamination also she deposed that she could see the accident as the area was properly lit and the accident involved a scooter which she had seen lying on the road. In the absence of any suggestion given to her regarding the speed / manner in which the scooter was being driven her testimony recorded on 5.10.2015 with stands. As per her deposition, the pedestrian was dragged by the scooter which goes to show that the scooter was at a very high speed that the accused was unable to control even after having hit the FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -12- of 18 pedestrian,thus proving his rashness and negligence.
26. Even if the testimony of PW6 is discarded, then also there is sufficient evidence on record to show that the accused was driving the scooter in question in rash and negligent manner. Parameter of 'reasonable care' pops up in such cases in determining the question of negligence. While driving a vehicle on public way, there is an implicit duty cast on drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others. Also in such cases, the doctrine of res ipsa loquitur is relevant. As per the doctrine the accident may by its nature, be more consistent with its being caused by negligence for which the opposite party responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence.
27. Thus, while applying the said doctrine of res ipsa loquitur, even if the testimony of PW Misro is set aside, there is sufficient evidence on record to prove the rashness and negligence on the part of the accused. Mechanical inspection report Ex. PW 8/ D which has been admitted by the accused as Ex. A4 reflects that the front head light , front fork and mud guard were broken and in front high speed hit marks were observed. Further that the scooter was not found fit for road test 'after' the accident. In the accident the accused also received seriuous injuries which have been opined to the grevious in the MLC Ex. A3. As such it is not a matter the pedestrian was hit by FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -13- of 18 the scooter but the impact was such that even the accused could not help himself in not receiving the injuries which reflects the kind of speed the scooter must have been driven with.
28. It is not the case of the accused that the deceased was at fault. The mechanical inspection report has not been challenged which reflect the extent of damage suffered by the scooter due to the impact. In such circumstances, the accused, if not negligent, would have sufficient time and opportunity to apply brakes well in time to avoid the collision.
29. The very fact that the accused could not control the scooter which is resulted in the death of a person and such damage to the scooter proves his negligence and rashness. If the speed of the vehicle were in prescribed limit there is no occasion that the vehicle could not have been stopped without it being collided with the pedestrian. It shows the indifference of the accused in either to the pedestrians in his vicinity or as to the speed of the vehicle driven by him.
30. Accused has not even come up with any defence if the victim was at fault, whether he came in front of his vehicle suddenly etc. Act of negligence can be clearly attributed to the accused in this case as he is solely responsible for causing this accident without any fault of the deceased. It is not just that a single witness has to prove the rashness/negligence, it can be determined from the manner in which the accident had taken place and other factors.
FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -14- of 18
31. No mechanical fault in the scooter I.e failure of brakes etc has been alleged by the accused . The faster the speed of a vehicle, the greater the risk of an accident. The forces experienced by the human body in a collision increase exponentially as the speed increases. Traffic engineers and local governments have determined the maximum speeds allowable for safe travel on the nation's roadways. Speeding is a deliberate and calculated behavior where the driver knows the risk but ignores the danger. Had the driver been cautious, he could have avoided the accident.
32. In 'Mohd. Hamid Khan V State (NCT) of Delhi 2013(1) AD(Delhi) 442', Hon'ble High Court observed as under : "4. I have heard the learned counsel for the petitioner and have gone through the impugned judgment. These arguments which were urged before the learned Appellate Court have been urged afresh before this court. At the outset, I must say that it is wellsettled by now that the doctrine of res ipsa loquitur is a doctrine which is applicable in cases of accidents also. It is not in dispute that the petitioner was driving one of the buses which is purported to have hit or touched the motorcycle because of which the deceased/victim/pillion rider had fallen and suffered injuries resulting in his death. The death is also not in dispute. The only question, therefore, remains that whether the bus was being driven rashly and negligently. There is a specific statement made by the petitioner that the two buses were being driven by the petitioner and his socalled colleague Harphool who were competing with each other so far as speeding vehicle on the road is concerned. This clearly shows that both these persons were having scant regard for the other users of the road and were driving their buses in a rash and negligent manner.
FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -15- of 18 Curiously, the witness has not been crossexamined on this score and, therefore, the testimony of PW6 cannot be disbelieved. The question of the bus not having suffered any mechanical damage from the front is inconsequential because the impact may be very minor or it may be only due to touching of the bus to the body of the deceased but it may be sufficient enough to result in imbalance and cause the fall of any person driving or walking on the road. That is why in such cases, the doctrine of res ipsa loquitur, i.e. the facts speaks for themselves, is taken help of. It was for the accused/petitioner to have adduced evidence to establish as to how the accident had taken place which he has failed to do in the instant case.
33. Hon'ble Delhi High Court held in Jeet Lal v. State. (Delhi) 2010(8) AD(Delhi) 217 as under : "Every motor vehicle that comes out of the factory has some essential features and one the essential features of a motor vehicle is brake. The brake is provided in the motor vehicle so that while driving the motor vehicle, the driver of the motor vehicle applies brakes to avoid any kind of collision between motor vehicle and other commuters/ objects. If the motor vehicle is running at a moderate say speed between 4050 kms/hrs, with the application of brakes, the vehicle gets stopped within a few feet and if the brake is applied with some force, the vehicle would stop instantly".
34. The very fact that the accused did not care for the pedestrians on the road and did not apply brakes to save him itself shows that the accused was negligent. The negligence of motor vehicle driver who does not look ahead of the vehicle and does not bother to see the nature of traffic to keep appropriate speed so that the vehicle does not hit others, is writ large. Every motor vehicle driver is supposed to FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -16- of 18 drive the vehicle in accordance with road conditions, traffic density and presence of pedestrians on the road. Where the traffic density is more and pedestrians are also walking on the road, the motor vehicle driver is supposed to drive in such a manner that he does not hit the pedestrian and the motor vehicle would stop immediately on application of brakes. If this caution of driving a vehicle in a proper manner is not taken, this would amount to negligence and if the motor vehicle hits somebody from behind, due to such driving or non application of brake, this is criminal negligence. "
35. In view of the above discussion and the case law referred it is quite evident and crystal clear after seeing the damage suffered by the scooter as proved by the mechanical inspection report Ex.A4 and the photographs marked Ex. A1 to A4 that the offending vehicle was in a high speed and the accused could not exercise control over it due to which it hit the pedestrian resulting in his death.
36. Accordingly rash and negligent act of the accused stands proved.
Death of the deceased Radhey Shyam
37. The next requirement to prove the case against the accused is whether the deceased died due to the rash and negligent act of the accused. Having proved the identity of the accused and the accident taking place due to his rash or negligent driving the prosecution was required to prove that the act of the accused was Causa Causan and not the Sine Qua Non. To hold the accused guilty it must be proved on FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -17- of 18 the record that the act of the accused must be the proximate cause of the death of the deceased and not the remote cause.
38. PW9 Dr.Mukesh kumar proved the PM report of deceased as Ex. PW 9/ A . The MLC no. 27670 has been admitted by the accused as Ex. A2. The time of arrival of the patient as per the said MLC which has been proved as Ex.PW A2 is 10:30 pm on 13.2.2011 and the accident is stated to have occurred at about 9:15Pm onm 13.2.2011. It proves that the deceased was admitted at LHMC hospital as a result of the said accident only. The patient was unconscious who later succumbed to his injuries. The caused of death has opined by doctor Mukesh Kumar / PW 9 is head injury consequent upon blunt force impact. The witness was not cross examined by the accused despite opportunity.
39. Therefore, in my considered opinion the prosecution has sufficiently proved on the record that the proximate cause of the death of Sh.Radhey Shyam was the injuries received by him in the accident caused by the accused by his rash and negligent driving.
40. Now the charge against the accused of not having a valid driving license and insurance of the vehicle at the time of the accident is considered. Onus was upon the accused to show that he was in possession of a valid DL and insurance of the vehicle at the time of accident. But neither such documents have produced by him nor any defence evidence has been led to prove their existence during the FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram Page No. -18- of 18 relevant time.
41. Thus, in view of the above discussion, the corroborative testimonies of the prosecution witnesses examined and the documents on record, the prosecution has been able to prove the guilt against the accused beyond any shadow of doubt. Accordingly the accused is held guilty for offences u/s 279/304 A I.P.C and 3/181 MV Act & 146/196 MV Act and is convicted accordingly.
42. A copy of this judgment be supplied to the accused free of cost and the matter be now listed for arguments on the point of sentence.
Digitally signed by BHUPINDER BHUPINDER SINGH
SINGH Date:
2018.08.09
13:00:52 +0530
Announced and dictated in (BHUPINDER SINGH )
the open Court on 8.8.2018 ACMM(01)/CENTRAL
TIS HAZARI / NEW DELHI
FIR No. 16/2011 PS : Paharganj State Vs. Mangal Ram