IN THE COURT OF MS [ENTITY], M.M.03 (SHD) KARKARDOOMA COURTS, DELHI FIR No. 347/04 U/[SECTION] [ACT] P.S. Nand Nagri State vs. Tarachand Unique Case ID No. 02402R0505422004 J U D G M E N T
1. Sl. No. of the case : 31/8/13 2. Date of institution of the case : 06.11.2004 3. Name of complainant : [ENTITY] 4. Date of commission of offence : 06.06.2004 5. Name of accused, parentage & address : [ENTITY] s/o Sh. [ENTITY], r/o Vill. & PO Chandpur Dabas, Delhi 6. Offence complained of or proved : 279/337/304A [ACT] 7. Plea of accused : Accused pleaded not guilty 8. Final order : Convicted 9. Date of which order was reserved : not reserved 10. Date of pronouncement : 26.09.2015 BRIEF REASONS FOR THE DECISION OF THE CASE
1. The facts of the case are that on 06.06.2004, complainant [ENTITY] was going on his scooter bearing no. DL5SM1261, alongwith his father [ENTITY], who was pillion rider. When they reached at FIR 347/04, PS Nand Nagri, S/v [ENTITY], Pg No. 1/ 13 about 5.30 pm, at near ITI Nand Nagri while coming via Wazirabad road, Bhopura going towards Gokal Puri, one tempo bearing no. DL1LE4804 came from back side while being driven in a rash and negligent manner at a high speed and hit against the scooter from back side. Due to the collision, the scooter fell on road with complainant and his father and they sustained injuries due to such falling. Injured [ENTITY] died during treatment on the same day. Investigation was completed and chargesheet was filed for offence u/[SECTION] [ACT]. Vide order dt. 16.02.2006, notice was framed against the accused for offences u/[SECTION] [ACT] to which he pleaded not guilty and claimed trial.
2. The prosecution examined as many as seven witnesses in order to substantiate its case.
PW1 is [ENTITY] who deposed that on 06.06.2004, at about 5.30 pm, when he reached near ITI Nand Nagri on his scooter alongwith his father, one tempo bearing no. DL1LE4804, came from Ghaziabad side at a very fast speed and hit against his scooter. Both of them fell down on road and sustained injuries. The number of the offending vehicle was noted down by PW1 who went to GTB hospital where his father was declared dead. Police met him in hospital and recorded his statement and accused was arrested in this case. PW1 identified accused during his testimony in the court. PW2 is [ENTITY] who deposed regarding identification of dead body of deceased [ENTITY].
PW3 is [ENTITY] / superdar of the offending vehicle and deposed that he was given notice u/[SECTION] [ACT] and he had replied to the same. He further deposed that he had produced his vehicle as well as accused before IO and vehicle was released on superdari to him. PW3 also produced the vehicle before court. (Further examination of PW3 was deferred on 03.10.2006 and he was examined further on 29.01.2008 and inadvertently mentioned as PW FIR 347/04, PS Nand Nagri, S/v [ENTITY], Pg No. 2/ 13 4 instead of PW3 during his further examination) PW5 is Ct. [ENTITY] who deposed that he had reached alongwith IO S/ [ENTITY] to GTB hospital on receiving DD entry no. 42B. Both injured were there and their MLCs were collected. Statement of complainant was recorded by IO who prepared a rukka and handed over the same to PW5 who got the FIR registered. One scooter was found lying at the spot in damaged condition and taken into police possession vide Ex. PW5/A. PW6 is Dr. [ENTITY], who deposed that on 07.06.2004, he conducted postmortem of deceased [ENTITY] and prepared his report Ex. PW6/A. Dr. [ENTITY] was examined on 21.04.2011, after examination of PW6 on 16.11.2010 ( inadvertently, he was also mentioned as PW6). He deposed regarding MCLs of injured [ENTITY] and injured [ENTITY], which were prepared respectively by Dr. [ENTITY] and Dr [ENTITY]. PW Dr. [ENTITY] proved the MLCs Ex. PW6/A and Ex. PW6/B respectively and also deposed that he had seen the doctors concerned writing and signing in due course of his duty and hence, identified their signatures on MLCs. PW7 is retired SI [ENTITY] who deposed that on 13.06.2004, an application for inspection of the victim vehicle was moved and he had inspected the scooter and given his report vide Ex. PW7/A. He further deposed that on 28.06.2004, an application for inspection of the offending vehicle was moved and he had inspected the TATA407 and given his report vide Ex. PW7/B.
3. After the conclusion of prosecution evidence, the statement of the accused [ENTITY] was recorded under [SECTION] [ACT] on 25.06.2015 wherein accused pleaded his innocence, however he chose not to lead defence.
4. I have heard the arguments on behalf of the accused as well as on behalf of the prosecution, and perused the record carefully. It was FIR 347/04, PS Nand Nagri, S/v [ENTITY], Pg No. 3/ 13 submitted on behalf of counsel for the accused that accused is falsely implicated and he was the one who rendered help to the complainant in hiring a TSR to reach hospital. It was submitted further that victim scooter had got punctured and was in a high speed and hence, met with an accident and vehicle of accused had not hit the scooter. It was further submitted that IO was not examined by prosecution due to his demise and site plan is not duly proved on record. On the other hand, Ld. APP submitted that complainant supported his case and nothing has come during his cross examination to throw a doubt over the prosecution version. It was submitted further that nonexamination of IO is not fatal as independent witness has supported the case and his evidence is intact. It is further submitted that witness has also stated that he had given description of the spot to IO.
5. In this case, accused has been charged with the offences under [SECTION] [ACT]. Before proceeding any further, it is to be seen that [SECTION] [ACT] provides as under: [SECTION] [ACT] Causing death by negligence whoever causes the death of any person by doing any rash or negligent act not amounting 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. Coming to the [SECTION] [ACT], it reads as under :
"Rash driving or riding on a public way 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 of either description for a timer which may extend to six months, or with fine which may extend to one FIR 347/04, PS Nand Nagri, S/v [ENTITY], Pg No. 4/ 13 thousand rupees, or with both."
Further, [SECTION] [ACT] provides for punishment in cases where simple hurt is sustained due to rash and negligent act on part of the offender.
6. Now the Court has to see whether the prosecution has proved beyond reasonable doubt the following points: I) The driving of the offending vehicle bearing no.DL1LE 4804 by the accused [ENTITY] at the time of accident. II) The manner of the driving and whether same was rash and negligent and caused hurt to complainant and resulted in death of his father.
I. Whether accused was driving the offending vehicle at the date and time in question?
7. In order to prove this, prosecution has examined [ENTITY] who is one of the injured and son of the deceased injured [ENTITY]. He deposed that on 06.06.2004, he was coming towards his house situated in Shahdara on his two wheeler scooter alongwith his father and at about 5:30 pm when they had reached near ITI, Nand Nagri, Delhi, a Tempo bearing no.DL1LE 4808 had come from Ghaziabad Side at a very fast speed and hit against the scooter of PW1. As a result, they had fallen down and sustained injuries. PW1 also stated that he had noted down the number of Tempo and pointed out towards the accused standing in court stating that he was the driver of the said offending vehicle. Nothing much has come in the cross examination of PW1 to shatter his testimony in so far as the presence of the accused and the offending vehicle at the time of the accident and the involvement of the vehicle in the accident are concerned. During his crossexamination by Ld. Defence Counsel, PW1 also stated that both he and his father were wearing helmets FIR 347/04, PS Nand Nagri, S/v [ENTITY], Pg No. 5/ 13 and he was at a distance of 10 feet from footpath and his scooter sustained damages on front light, back light, clutches, stepney and dickey. He also clarified that his signatures were obtained on his statement and not on blank papers. He clarified that he could not tell about other passengers of the tempo apart from the driver and that he was conscious after accident and saw the accused as he came down and snatched his pen and paper from him when he was noting down the number of vehicle. He further stated that he had identified the accused at the spot as well as in the PS. He denied the suggestion given by the defence counsel that his scooter was on a high speed and because of puncture it had slipped and he and his father had received injuries. He also denied the suggestion that the accident was not caused by the tempo and tempo had not struck against his scooter. The accident occurred on 06.06.2004 and on the same day, statement of the complainant was recorded wherein he disclosed the number of the offending vehicle as DL1LE 4804. FIR was registered well in time and there was no time for manipulation in the facts by the complainant and there is nothing to show as to why he would falsely implicate the accused and give out the number of offending vehicle. Coming now to the testimony of the superdar of the offending vehicle namely [ENTITY], he deposed that on 22.06.2004, he was given a notice u/[SECTION] [ACT] and he replied to the same and produced the accused who was driver of the tempo before police. Hence, on the basis of the testimonies on record, it stands duly proved that the accused was driving the vehicle at the date and time in question and also that it was his vehicle which had struck against vehicle of the complainant resulting in the accident.
B. Whether the accused was driving the offending vehicle in a rash or negligent manner and it resulted in death of one person FIR 347/04, PS Nand Nagri, S/v [ENTITY], Pg No. 6/ 13 while injury (simple hurt) to the other?
8. Now the question is whether the offending vehicle was being driven in rash and negligent manner. The meaning of rash and negligent act and the distinction between the two was explained by Hon'ble Supreme Court of India in [PRECEDENT] as follows: "There is a distinction between rash act and negligent act. In the case of rash act, the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequence Negligence is an omission to do something which a reasonable man guided upon those consideration which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do "
9. Now it is to be seen that PW [ENTITY] has deposed that the offending vehicle was being driven at high speed. Mere allegation of high speed does not conclusively prove the rashness and negligence of driver. Regarding High Speed Hon'ble Supreme court of India in [PRECEDENT] has observed as under : "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no FIR 347/04, PS Nand Nagri, S/v [ENTITY], Pg No. 7/ 13 such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur".
10. Now, it is to be seen that the motor vehicles are meant to be driven on the road, and if a vehicle while being driven on the road hits another moving vehicle from back side, then it is prima facie evidence to the effect that the vehicle was being driven in a negligent manner and then it is for the accused to prove that it was not being driven in such a manner. In [PRECEDENT], it was observed by the Hon'ble Supreme Court of India as under : "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. Negligence is an 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 and reasonable man would not do"
It has been held by Orissa High Court in [PRECEDENT] Judgment dated 07.07.1993 that for an offence punishable under [SECTION], [ACT], the point to be established is that the act of accused was responsible for resulting in the death and such act of the accused was rash and negligent although it did not amount to culpable homicide.
11. The deposition of the witnesses and the matter brought on FIR 347/04, PS Nand Nagri, S/v [ENTITY], Pg No. 8/ 13 record needs to be examined in detail to see if the above ingredients have been proved by the prosecution or not.
a) Death of the person/injured and simple hurt to another another injured:
The prosecution alleges the death of [ENTITY]. The prosecution has proved the death of [ENTITY] through medical evidences as well as testimonies of prosecution witnesses. The cause of the death has also been mentioned as due to cerebral injuries produced by blunt force impact. MLC Ex.PW6/B of complainant shows the alleged history of road side accident and sustaining of simple injuries by complainant. Thus, it is proved by the prosecution that PW [ENTITY] died due to the injuries sustained in the accident and his son also sustained simple hurt in the accident.
b) Causing of death by the accused by rash and negligent driving:
Hon'ble Supreme Court in [PRECEDENT] held as follows: Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury but without the 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 consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care 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 persons to have adopted. In the present matter, the most important witnesses is PW [ENTITY] who is an eye witness as well as one of the injured. In the bedrock of his testimony, it has to be seen if the rash and negligent driving by the accused of the offending vehicle resulting in the FIR 347/04, PS Nand Nagri, S/v [ENTITY], Pg No. 9/ 13 injury to complainant and his father and ultimately the death of the deceased father [ENTITY] is proved or not.
12. It has come in the testimony of PW1 that the offending vehicle was coming from Ghaziabad side while PW1 was returning towards his house on his two wheeler scooter. He also stated that at about 5:30 pm when scooter had reached near ITI, Nand Nagri, the offending vehicle had come at a very fast speed and hit against his scooter resulting in it falling down. The complaint Ex.PW1/A clearly mentions that on the date in question, the complainant was coming via Wazirabad Road, from Bhopura Gokulpuri and the offending vehicle had come near to the complainant and his scooter from back side. During his crossexamination, PW1 stated that he could not tell the speed of the tempo at the time of accident. It cannot be lost sight of that PW1 is one of the victims who was caught unaware due to the accident and that he had fallen down on road alongwith the pillion rider who was his father. In such a situation and also considering that it is not possible for a person moving on road to measure the exact speed of a vehicle moving on road and also considering that PW1 clearly stated that the vehicle was at a very fast speed and struck against the moving scooter, merely because he failed to give the exact speed of the offending vehicle, the case of the prosecution does not fall flat. It is of little consequence that PW1 did not state the exact speed of the vehicle (as none can state so with exactitude in absence of a speedometer) when he clearly stated that vehicle was at a very fast speed and hit against his scooter. There is no explanation from the defence as to how the tempo hit against the scooter nor any defence evidence has been led to show that there was no fault of accused or that the scooter was in wrong direction or at a high speed. Rather, the clumsy argument adduced by the accused is that the scooter got punctured due to high speed, however, there is nothing on record to FIR 347/04, PS Nand Nagri, S/v [ENTITY], Pg No. 10/ 13 suggest that the scooter was punctured and driven in a fast speed leading to the incident. The mechanical inspection of the victim vehicle (scooter) was conducted on application of the IO on 13.06.2004 and report Ex.PW7/A was prepared by PW7 Retd. SI [ENTITY]. The report clearly reflect that there was fresh damages found on the scooter and the head light was found broken. The accident occurred on 06.06.2004 and the accidental scooter was seized on the same day by police after it was found on the road in an accidental condition. Mechanical inspection was conducted on 13.06.2004. Hence, there is no unreasonable delay in the conduct of the mechanical inspection of the scooter either. As far as mechanical inspection report of the offending vehicle Ex.PW7/B dated 28.06.2004 is concerned, it does not reflect any fresh damage. Further, it cannot be lost sight of that mechanical inspection of the offending vehicle was conducted on 28.06.2004 only after production of the vehicle as well as the accused before the police for the first time on 28.06.2004. Mechanical inspection of the offending vehicle could not be done in time and was conducted with a delay of about 22 days and hence the reason for no fresh damage is explained. Offending vehicle was not seized at the spot and there was sufficient time with the owner to get the damage repaired. Further, the damages sustained 22 days back cannot at all be termed as 'fresh damage'. Moreover, it can be seen that the offending vehicle Tata 407 is a bigger vehicle in size and capacity from a scooter and if the collision occurred between a Tata 407 and scooter, there is likelihood of the victim vehicle sustaining more damage while the accidental vehicle can escape with little or no damage.
13. Testimony of PW1 is consistent and is supported with testimonies of other independent witnesses including the superdar of the offending vehicle and the police witnesses. PW1 was conscious at the time of the accident and his MLC also reflects that he was fit FIR 347/04, PS Nand Nagri, S/v [ENTITY], Pg No. 11/ 13 for statement. PW5 has testified regarding finding of the scooter in damaged condition at the spot and taking of the same to police possession. During his crossexamination, he also stated that scooter was damaged from the front side as well as back. Hence, the testimony of PW5 corroborates the testimony of PW1 regarding sustaining of damage in the accident by the victim vehicle.
14. It is argued on behalf of the accused that the site plan was not prepared at the instance of the complainant nor proved on record and investigation in the present case is botched up as the site plan does not bear the signature of the complainant on it and was not prepared on his instance. In this regard, it can be seen that PW1 has clearly stated that he did not visit the spot after accident but he had verbally given the description of the spot to IO. Hence, if IO chose not to take the witness to the spot or to prepare site plan in his presence, merely because of such lapse in the investigation, a clean cheat cannot be given to the accused when there are overwhelming evidences in support of his guilt. Death of the deceased father of the complainant namely [ENTITY] is proved on record through medical evidence including postmortem report, MLC Ex.PW6/A and testimonies of doctors i.e. Dr. [ENTITY] and Dr. [ENTITY]. PW2 [ENTITY] deposed regarding identification of dead body in GTB mortuary on the date of accident i.e. 06.06.2004 vide Ex.PW2/A and handing over of dead body after post mortem vide handing over memo Ex.PW2/B. Further, it is also proved on record that the death was caused in the immediate aftermath of the accident and the injured was examined at about 5:50 pm while he wsa unconscious and declared dead on the same day at about 7:45 pm during treatment. Moreover, the MLC of PW1 was also prepared at GTB hospital at around the same time and the presence of PW1 at the spot and having witnessed the accident is also proved on record through medical evidences. The injuries on his person are also FIR 347/04, PS Nand Nagri, S/v [ENTITY], Pg No. 12/ 13 proved through MLC of the complainant Ex.PW6/B which shows that he sustained simple injuries.
15. Hence, prosecution has been able to prove its case against the accused u/s [SECTION] reasonable doubt. It stands proved that accused [ENTITY] was driving his vehicle in a rash and negligent manner and thereby caused simple injuries to complainant [ENTITY] and such fatal injuries to his father [ENTITY] as resulted in his death. Hence, accused [ENTITY] is held guilty and convicted for the offence punishable u/[SECTION] [ACT].
16. To come up for argument on the point of sentence on 08.10.2015.
Dictated & Announced in the open court on 26.09.2015 ( [ENTITY]) [ENTITY], DELHI FIR 347/04, PS Nand Nagri, S/v [ENTITY], Pg No. 13/ 13