Delhi District Court
Ca No. 65/17 Kulwinder Singh vs . State 1/6 on 25 October, 2017
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE-03(NE), KARKARDOOMA COURTS, DELHI.
CA No. 65/17
PS : Gokal Puri
Kulwinder Singh
S/o Sh. Pyara Singh
R/o H. No. 32, New Seelam Pur,
Delhi
Old Address :
House No. 3, New Seelam Pur,
Delhi.
Versus
State (Govt. of NCT of Delhi)
Date of assignment : 31.08.2017
Date of Arguments : 12.09.2017
Date of Pronouncement : 25.10.2017
Judgment :
1.Vide my judgment, I shall dispose off this appeal preferred against conviction dated 30.06.2017 and sentence order dated 14.72017 thereby convicting and sentencing the accused to undergo punishment for a period of six months (SI) u/s 279 IPC and six months (SI) u/s 304A IPC and further direction to pay compensation of Rs. 50,000/-, in default six months (SI).
CA No. 65/17 Kulwinder Singh Vs. State 1/6
2. Ld. Counsel for the accused / appellant has argued that the judgment as well as sentence order passed by Ld. Trial Court is bearing illegality and infirmity and Ld. Trial Court has passed this judgment in mechanical manner without considering the fact that no independent public witness joined into investigation and testimony of PW2 was not reliable being nephew of deceased as well as interested witness. It is further argued that PW2 is planted witness of prosecution otherwise he was not present at the spot due to accused is entitled for acquittal. It is further argued that there was no evidence on record that the accident took place due to the negligence of accused and accused has been convicted on sympathetic ground as deceased lost his life. It is further argued that photographs of the incident would show that there was no negligence on the part of accused and accident took place due to fault of deceased and accused is entitlement for benefit of doubt. It is further argued that the judgment passed by Ld. Trial Court may be set aside.
3. On the other hand, Ld APP for the State has strongly opposed these submissions of Ld. Counsel for Appellant and has argued that judgment passed by Ld. Trial Court is not bearing any illegality or infirmity and Ld. Trial Court has passed a reasoned judgment thereby giving clear findings that accused was driving the offending vehicle in rash and negligent manner and caused the death of deceased from behind and this judgment is liable to be affirmed. It is further argued that the statement of PW2 Vijender Kumar has duly CA No. 65/17 Kulwinder Singh Vs. State 2/6 proved that accused was driving the vehicle in rash and negligent manner and he not only struck the cycle of deceased but also dragged him under the wheels for about 50-60 steps and this fact is sufficient to prove the rash and negligent driving of vehicle by the accused. It is further argued that the testimony of PW2 cannot be discarded merely because he was nephew of deceased and relationship between deceased and witness cannot be a ground to discard the testimony of an eye witness who has duly proved the guilt of the accused. It is further argued that PW2 was with the deceased by his own cycle and was just behind him when the accident was caused by the accused. It is further argued that PW2 also saw the accused while running from the spot after the accident and this fact has proved that accused is guilty for rash and negligent driving and causing the death of deceased. It is further argued that even the court observation during examination of PW2 has also proved that accused has not disputed that he was not driving the vehicle, but has taken a defence that it was the negligence of cyclist which caused accident, but this fact could not be proved on record, due to appeal is liable to be dismissed.
4. I have heard the arguments and perused the record. Though the accused was earlier convicted by the then Ld. CMM vide judgment dt. 21.07.2014, yet judgment was set aside on the ground that no finding was given by the court under Section 174A IPC despite framing of charge. The judgment under challenged has been pronounced subsequently and accused has been convicted again CA No. 65/17 Kulwinder Singh Vs. State 3/6 u/s 279/304A IPC and acquitted u/s 174A IPC. The judgment passed by Ld. Trial Court is well reasoned and after consideration of all relevant testimonies of witnesses including testimony of eye witness coupled with the conduct of accused that he ran away from the spot soon after the accident and thereafter arrested as PO u/s 41.1 (c) Cr.PC. However, this court has also gone through the material available on record afresh including the testimonies of all material witnesses. The testimony of PW2 Virender Kumar is material. He has categorically deposed that he was with the deceased Dhoom Singh at the time of incident and was driving his cycle just behind him when accused struck his truck against cycle of deceased from behind and dragged for about 50-60 steps. Accused stopped the truck and thereafter ran away from the spot after leaving the truck there. PW2 has also categorically deposed that he duly identified the truck driver at the spot when he ran away. Besides it, a court observation has also been given during examination of PW2 that accused has duly admitted that he was driving the offending vehicle at the relevant time, but has taken a defence that accident was due to the negligence of cyclist. However, there is no cross examination of PW2 or any other witness in which manner the deceased cyclist acted in rash and negligent manner or contributed to this accident which resulted into his death. In the absence of any cross examination of any witness, the Ld. Trial Court has rightly concluded that the accused has failed to prove that deceased was negligent which caused the accident. PW5 Inspector Ram Dal has duly proved the presence of PW2 at the spot who not only present at the spot but CA No. 65/17 Kulwinder Singh Vs. State 4/6 also disclosed the incident to him on which basis the FIR and rukka were prepared. As such, the defence of accused could not be proved.
5. Further, Ld. Counsel for appellant has argued that the prosecution was duty bound to prove rash and negligent driving of the offending vehicle by the accused to convict him, but prosecution has failed to prove it, due to accused is entitled for benefit of doubt. However, this plea has no substance. Ld. Trial Court has duly dealt with this plea thereby considering the testimonies of PW2 and PW5. The dragging of the cycle for about 50-60 steps from the spot after the accident has itself proved that the accused was driving rashly and negligently. Rash and negligent driving may be proved from the circumstances also without proving the specific words by witness which has been proved on record. The rash and negligent driving has no concerned with speed of vehicle and the same may be even without high speed and the photographs of the spot of incident have duly corroborated the extent of rash and negligent driving of the vehicle by the accused. In fact, the testimonies of PWs have duly proved that accused was driving the offending vehicle in rash and negligent manner which resulted into the death of deceased. Rest of the facts are not disputed or under challenged including the finding of Ld. Trial Court u/s 174A IPC. Accordingly, I am of the opinion that the conviction and sentence of the accused passed by Ld. Trial Court it not bearing any illegality or infirmity. The conviction as well as sentence order passed by Ld. Trial Court against accused is CA No. 65/17 Kulwinder Singh Vs. State 5/6 hereby confirmed. This appeal is hereby dismissed. Accused is taken into custody for serving sentence / imprisonment inflicted upon him. Compensation amount also not paid. Bail bond cancelled. Surety discharged. Trial Court Record be sent back alongwith copy of judgment to Ld. Trial Court. Copy of judgment be supplied to accused. File be consigned to record room.
Announced in open court (Devender Kumar)
today on 25.10.2017 Additional Sessions Judge-03
(NE): Karkardooma Courts, Delhi.
CA No. 65/17 Kulwinder Singh Vs. State 6/6