Court: Delhi District Court
Bench: Sh. Gurdeep Saini
Narender Kumar vs State (Govt. Of Nct Of Delhi) on 18 August, 2011
Law Point:
Poverty and failed marriage is not a crime, commentary on gross misuse of IPC 498A provision
JUDGEMENT
1. Vide this order I shall decide this appeal directed against judgment dated 15.03.2011 and order dated 26.03.2011 passed by Shri Ankur Jain, Ld. Metropolitan Magistrate, North-East, Karkardooma Courts, Delhi convicting the appellant for offence punishable u/s 279/304-A I.P.C. and sentenced him to undergo rigorous imprisonment (RI) for a period of three months with a fine of Rs.1,000/- and in default of fine simple imprisonment (SI) for ten days for offence punishable u/s 279 IPC and further sentenced him to undergo rigorous imprisonment (RI) for 15 months with a fine of Rs.9,000/- and in default of fine SI for two months under section 304-AIPC and both the sentences shall run concurrently.
2. Notice of the appeal given to State. Trial Court Record was called and perused.
3. I have heard Ms. Neeta Goyal, Advocate for the appellant and Sh. Virender Singh, Ld. Addl. PP for State. I have also gone through the record.
4. Relevant facts necessary for the disposal of the appeal are that Ct. Jitender Kumar made statement to the police that he alongwith Ct. Manoj Kumar were posted at PS Welcome and were on duty on motorcycle from 4:00 p.m. to 12:00 mid night. He was riding motorcycle and Ct. Manoj Kumar was sitting as pillion rider and when at about 11:35 they reached at Police Check Post G.T. Road Kanti Nagar, in the meantime one scooter bearing registration No. DL-3SE-7516 came from Shyam Lal Pushta and was going towards Swarn Cinema, one bus bearing registration No. DL-1P-8984 driven in rash and negligent manner in fast speed came from Shahdara side overtaking one truck bearing registration No. HR-38D-0821 hit scooter at Kanti Nagar Chowk. Scooterist fell down and in the meantime the truck which was also driven in rash and negligent manner hit the scooterist who had fallen and the driver of the bus fled away with the bus towards Seelampur which was chased by him and got stopped at Seelampur Fatak Red Light. The bus driver jumped and fled away taking the benefit of darkness. He left Ct. Manoj Kumar to guard the bus and returned to the spot. The truck driver has also fled away after leaving the truck. He informed the control room regarding this incident and on this IO reached. The injured was identified as Constable of Delhi Police namely Ct. Om Prakash who was identified from his identity card recovered from his pocket and he had died at the spot. He was taken to GTB Hospital and doctor declared him brought dead. On the basis of his complaint, FIR was registered, bus and truck were seized. They were got mechanically inspected. Owner of truck and bus was given notice u/s 133 of Motor Vehicle Act. Owner of bus replied that Narender, the appellant, was the driver. Similarly owner of truck replied that Jai Prakash Tripathi was the driver in the truck. Photographs of the spot was got done. TIP of both the accused were also got conducted but they refused to join the TIP. After completion of the investigation the chargesheet was filed.
5. Ld. Metropolitan Magistrate gave notice u/s 251 Cr.PC to Jai Prakash Tripathi and Narender for offence punishable u/s 279/304-A IPC. During the course of proceedings, accused Jai Prakash Tripathi absconded and he was declared proclaimed offender (PO).
6. The prosecution examined 14 witnesses.
7. Statement of witness was recorded u/s 313 Cr.PC and after conclusion of the trial accused/appellant was convicted for offence punishable u/s 279/304-A IPC.
8. The judgment is assailed on the ground that in the site plan police picket has been shown whereas there was no police picket at the spot and DD No. 27-A only discloses accident between truck and scooter. Further, the signature of Ct. Jitender on the seizure memo of driving licence of accused Narender Kumar are different and the description of the bus driver has not been disclosed by the complainant. Further PW-6 and PW-8 are falsely introduced witnesses.
9. Firstly I shall take up contention of Ld. Counsel as regards showing of police picket in the rough site plan. The site plan is rough site plan which however could not be proved as IO could not be examined. However, eye witness PW-6 Ct. Jitender has described that he had parked his motorcycle at the police picket at Kanti Nagar Chowk. Place of occurrence was at the red light crossing. There is no question put to this witness on behalf of accused/appellant that there was no police picket near place of occurrence nor suggestion has been given to the witness regarding non-existence of the police picket. PW-8 Ct. Manoj Kumar is also not cross-examined on this aspect. He also stated that they had stopped their motorcycle at Police Check Post Kanti Nagar.
Therefore the contention is without any merit.
10. Now coming to the second submission of Ld. Counsel regarding DD No. 27-A. The DD No. 27-A, which was also not proved, however, the same can be looked into for the purposes of defence of the accused. It mentions that at about 12:05 a.m. operator had informed through intercom that information has been received from Kanti Nagar Chowk that there is accident between one truck and scooter and some officer be sent. It is submitted that it does not mention that there was accident between bus and scooter or between bus and truck and scooter but it only finds mention that accident took place between truck and scooter. The information recorded in the DD entry is always a short information in the nature of urgent call requires attention. Moreover as the fact itself shows that bus has fled away from the spot and at the spot truck and scooter were lying. Therefore it was quite natural that information was with respect to truck and scooter. However, mere fact that it was not recorded that bus was also involved in the accident, does not in any manner wash away the testimony of eye witnesses. Therefore this contention is also liable to be rejected.
11. As regards the submission that there are difference between signature of Ct. Jitender on memos and Asal Tehrir and he had not signed as witness in the seizure memo of bus. PW-6 Ct. Jitender Kumar in his examination in chief itself stated that the bus was seized in the presence of Ct. Manoj. In the examination-in-chief, it is mentioned that all the three vehicles were seized by IO vide seizure memo Ex.PW-6/B, PW-6/C and PW-6/D respectively. Ex.PW-6/D does not find mention the name of Ct. Jitender but Ct. Manoj, which he had clarified in the very next sentence that bus was not seized in his presence. Therefore it appears to be merely an error which stood corrected. As regards the signature on different documents, the witness has not been cross-examined on this aspect at all. He had categorically stated that documents bear his signature. Therefore at this stage no capital can be made out by the accused by pointing minor variation in signing style. This contention is also without any substance.
12. As regards the submission of Ld. Counsel that description of the bus driver was not given by PW Ct. Jitender in his first statement made to the IO and he has merely stated that driver of the bus had fled away taking the benefit of darkness leaving bus from Seelampur Red Light Fatak. Notice u/s 133 of Motor Vehicle Act was given by IO to the registered owner of the bus and the truck, who disclosed the name of the convict being the driver on the bus bearing registration no. DL-1P-8984 on the intervening night of 6/7th December, 2000. The owner PW-5 Sh. Vikas Jain was also examined by the prosecution. He categorically stated that Narender was driving the vehicle at Kanti Nagar Chowk on the date of incident. He identified the accused being the driver. He was not cross-examined at all. Mere non-disclosure of the description of the bus driver by Ct. Jitender does not in any manner show that it was not the accused/appellant who was driving the vehicle. Owner had categorically stated and replied to the notice as per his statutory duty as to who was driving the bus at the alleged time of the accident. There is no cross-examination to the fact that he was not driver and not driving the vehicle at the relevant time. Therefore identity of the accused/appellant Narender is established beyond any reasonable doubt.
13. It is also submitted that witnesses have been planted as person who died was police constable to solve the case and accused/appellant has been falsely implicated. Further it is submitted that conduct of the witnesses clearly shows that he was not present at the spot as the witness instead of taking care of the injured had chosen to chase the bus. In this case, accident as per prosecution case occurred in the presence of police constables who were on patrolling duty on the motorcycle when bus after hitting scooterist sped away. Normal conduct of the police officer in such circumstances would be to apprehend the culprit. It is true that ordinarily it is required to take care of the injured first but the reaction of one person varies from another and in case of police personnel, it shall to chase the culprit and therefore there is nothing unnatural in their conduct. Therefore this contention is also without any merit.
14. Now coming to the testimony of PW-6 Ct. Jitender Kumar who had categorically stated that on the intervening night of 26/27-12-2000, he and Ct. Manoj were on motorcycle duty and when they reached at about 11:35 p.m. at Kanti Nagar Chowk and they parked their motorcycle at their picket, in the meantime a bus bearing no. DL-IP-8984 came from Shahdara side in fast speed. One scooter was coming from the Shyam Lal Pushta Side. Said bus hit the said scooter and the bus went towards Seelampur side. Then he chased the said bus on their motorcycle and the driver of the bus ran away near Seelampur Phatak after leaving the bus there. He left Ct. Manoj near the bus and came back at the spot i.e. Kanti Nagar Chowk. There he saw a truck bearing no. HR-38D-0821 which also hit the scooterist and the driver of the said truck also left the spot and fled away from there. Then he informed the police at 100 number. The dead body was taken out from under the left front wheel of the truck. In his cross-examination on behalf of accused Jai Prakash Tripathi (PO) he stated that red light signal was working at that time. Ct. Ram Das on duty in the picket at that time. He reached at the picket from Shyam Lal College Pushta. His motorcycle was facing the Seelampur Side. He admitted that his attention was drawn towards the site of accident on hearing the sound of collusion and on seeing the accident, they without going near the deceased, straight away chased the bus on their motorcycle. The bus driver had jumped the red signal. The deceased was in civil uniform and was wearing the helmet. He denied the suggestion that scooterist had jumped the red light. He stated that he has seen same position i.e. shown in photograph Ex.PW-6/DA when he started chasing the bus. Ex.PW-6/DA shows that truck tyre is near foot of the deceased and scooter is overturned on him and rest of the body is on the road. He stated that he reached near the scooter just after the accident within 15 seconds. In his cross-examination on behalf of accused/convict he stated that he saw the bus from the distance of about 100 meters while it was over taking. The truck was on the right side of the bus. The bus overtook the truck about 10 meters before the red light. The scooterist was hit by the right side of the bus. However, he could not tell the side of the scooter, which was struck by the bus. The deceased fell about 5/7 steps away from the place where he was hit. He has seen that the deceased had received injury on his head. There is no passenger in the bus when accident took place. The witness has given traffic detail in the manner in which the bus was driven immediately before hitting the scooter. The bus was over taking the truck and thereafter right side of the bus hit the scooter. Deceased fell 5/7 steps away from the place he was hit and sustained head injury. As per the postmortem report cause of death was given shock due to head injury produced by blunt force impact and injuries are antemortem in nature. Which also clear shows the manner in which the bus was driven in reckless manner over taking the truck which is also heavy vehicle. Therefore it is clearly established that the accused/convict was driving the bus in rash and negligent manner hit the scooterist and caused injuries to the scooterist.
15. It is also contended on behalf of the accused/convict that even if it is believed that bus had hit the scooterist, it was truck which struck against scooterist which resulted death. Therefore offence punishable u/s 304-A is not attracted against accused/convict. It is further submitted that as per the testimony of PW-6 Ct. Jitender, the dead body was taken out from the left front wheel of the truck. In his cross-examination he had stated that position of the scooter and deceased was the same i.e. shown in photograph Ex.PW-6/DA when he had started chasing the bus. Only foot is shown touching front wheel of the truck. The injury which has been caused is caused to head, laceration to left ear, abrasion over front neck and chest, multiple abrasion over medial aspect of right leg, lacerated wound on lateral aspect of right lower leg, abrasion over back of right shoulder, abrasion over back of left shoulder and doctor had opined that these injuries can be produced by blunt force impact. The bus hit the scooter and scooterist fell five/seven steps away on the road which resulted in sustaining injury on his body and some injury on his leg having caused by the truck but injury which is resulted in his death has been caused by the impact of thebus. Therefore offence punishable u/s 304-A is also established against the convict.
16. Therefore, as per discussion above, I am of the opinion that there is no infirmity or illegality in judgment dated 15.03.2011 passed by Ld. Metropolitan Magistrate convicting the accused/appellant for offence punishable u/s 279/304 A IPC.
17. As regards sentence, it is submitted that appellant is poor person aged about 42 years having four children, wife and old aged parents who are fully dependent upon him, sole bread earner of the family, and not having previous involvement and benefit u/s 360 Cr.PC/ Section 4 of Probation of Offenders Act be given. It is also submitted that he is directed to compensate family of the deceased and deceased has received compensation of Rs.6 lacs from MACT Court.
18. Ld. Metropolitan Magistrate has relied upon the judgment of Hon’ble Supreme Court inDalbir Singh v. State of Haryana 2000(5) SCC 82, State of Karnataka v. Murlidhar AIR 2009 SC 1621, that mere fact that appellant has faced trial for more than 10 years would be granted him for release on probation. It is common knowledge that commercial heaving vehicle like buses are running amack in the cities road and they have scant regards for the safety of other road users. Buses by that point of time had become monsters on the road and left other road users to run for their safety. The bigger vehicle the higher is the responsibility to take care of the safety of other road user. The driver on the commercial vehicle are professionals who are supposed to do their duty with full competence following rules and regulations. The convict in the present case was professional driver of a bus, had responsibility of the safety of the other road users, who had taken precious life of individual in most reckless manner by over taking a truck on the road which strictly prohibited in Delhi. Therefore I am of the opinion that convict does not deserve any leniency. Therefore the sentence also does not call for any interference and is fully justified as per facts and circumstances. Further to give succor to the family of the victim and also to show concern of the criminal justice for them, the amount of fine i.e. Rs.9000/- and Rs.1000/- for offence punishable u/s 304-A IPC and 279 IPC shall be paid as compensation to the widow of the deceased, and if widow is not available then to the children of the deceased. Remaining sentence is maintained.
19. The appeal is accordingly without any merit and hence dismissed. Appellant is on bail. He is taken into custody. Trial court record be sent back alongwith copy of the order. Appeal file be consigned to record room.
Announced in the open court today i.e on 18.08.2011 GURDEEP SINGH ASJ-04/NE/KKD/18.08.2011
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