IN THE COURT OF SH. MUNEESH GARG METROPOLITAN MAGISTRATE-10 (C) TIS HAZARI COURTS, DELHI FIR No. 75/02 U/s [SECTION] [ACT] State versus [ENTITY] PS Darya Ganj JUDGMENT
a. [CASE NUMBER] b. Sl. No. of the case : 181/D c. Date of commission of offence : 10.03.2002 d. Date of institution : 02.08.2002 e. Name of complainant : Dr. [ENTITY] S/o Sh. [ENTITY] R/o F-21, Preet Vihar, Delhi-92. f. Name & address of accused person : [ENTITY] S/o Sh. [ENTITY] R/o H. No.25, Amrit vihar, 25 ft, Road, Nathu Pura, Delhi. g. Offence complained of : U/s [SECTION] [ACT] h. Plea of accused : Pleaded Not Guilty i. Date when Judgment was reserved : Not Reserved j. Final order : Convicted k. Date of Judgment : 31.08.2016 FIRNo.75/02 [ENTITY].[ENTITY] 27of27 BRIEF STATEMENT OF REASONS FOR DECISION
01. Briefly stated, the case of the prosecution is that on 10.03.2002, at about 08:30 a.m. at N. S. Marg, Darya Ganj, Delhi, the complainant alongwith his mother were trying to cross the road as the traffic signal was green for pedestrian but at the same time, one bus bearing registration no. DL 1PA 6035 came from the side of [ENTITY] in rash and negligent manner, hit the mother of the complainant. Due to impact, mother of complainant fell down and sustained injuries culminating in her death instantly. The driver of the bus alongwith the bus was apprehended at the spot. The case was registered on the statement of complainant Dr. [ENTITY] under [SECTION]-A [ACT]. After conclusion of investigation, IO filed the charge-sheet under [SECTION]-A [ACT].
02. After filing of the police report, cognizance of offence was taken by the Ld. Predecessor of the court and the accused was called upon to face trial after complying with the requirement of [SECTION] of [ACT].
03. Notice of accusation under [SECTION] [ACT] for the offences punishable under [SECTION] A [ACT] was FIRNo.75/02 [ENTITY].[ENTITY] 27of27 framed against the accused on 25.02.2004, to which he pleaded not guilty and claimed trail. The accused also disclosed his defence under [SECTION] of [ACT] and claimed that the accident was caused due to the fault of the pedestrian.
04. In order to prove its case, prosecution has examined ten witnesses. A brief scrutiny of the prosecution evidence recorded in the case is as under:-
PW-1 Constable [ENTITY] deposed that on 10.03.2002, he had accompanied ASI [ENTITY] to N.S. Marg near Golcha Cinema after receipt of information vide DD no. 10A regarding accident. After reaching at the spot, they noticed bus no. DL-1PA-6035 and dead body of a lady which was kept at Central Footpath. IO ASI [ENTITY] prepared a tehrir and sent him to Police Station for registration of FIR. He returned at the spot with copy of FIR. IO seized the driving licence of the accused vide memo Ex. PW1/A. Offending bus was seized vide seizure memo Ex. PW1/B. The accused was arrested vide arrest memo Ex. PW1/C and his personal search was conducted vide memo Ex. PW1/D. IO also seized the RC and insurance certificate of the offending bus vide memos Ex. PW1/E and Ex. PW1/F. IO also got the post-mortem of deceased Smt. [ENTITY] conducted from MAM College. After post mortem the dead body was handed over to relatives of deceased. IO also got bus mechanically inspected from mechanical inspector. IO recorded his statement.
FIRNo.75/02 [ENTITY].[ENTITY] 27of27 PW2 [ENTITY] has proved on record copy of FIR Ex. PW2/A. PW3 Sh. [ENTITY] who is an eye witness of the alleged incident, deposed inter-alia that on 10.03.2002, he had organised free ultrasound camp at 2531, Tiraha Braham Khan. At the camp, he had held poojan, for which his mother had accompanied him from Preet Vihar in his car. After parking his car at Darya Nand Road, he alongwith his mother was crossing N.S. Marg near Traffic Signal at about 8:30 am and signal was green for pedestrian at that time. In the meantime, accused came driving his bus bearing no. DL-1PA-6035 from [ENTITY] side in a rash and negligent manner and in a fast speed and hit against mother of PW3. PW3 was about two steps ahead of his mother at that time. Mother of PW3 fell down and her head was crushed under front wheel of the bus. Accused stopped the bus 5-6 steps ahead and came down from the bus and was apprehended by PW3. Mother of PW3 namely [ENTITY] expired on the spot. Police came to the spot and statement of PW3 was recorded. Police prepared site plan and got the spot photographed. Accused was arrested and personally searched. His DL and copy of RC and insurance of bus were seized. Post-mortem of dead body was conducted in LNJP Hospital. PW3 identified accused during his testimony as driver of the offending bus.
PW4 Sh. [ENTITY] deposed regarding identification of FIRNo.75/02 [ENTITY].[ENTITY] 27of27 dead body of [ENTITY] and preparation of documents Ex. PW4/A. PW5 Constable [ENTITY] deposed that on 10.03.2002, he had taken photographs of the accidental site on direction of ASI [ENTITY]. The negatives and photographs Ex P5/1 & P-5/2 were proved on record by PW5.
PW6 SI [ENTITY] deposed that on 10.03.2002, he carried out mechanical inspection of the offending bus on request letter Ex. PW6/A of IO. He prepared report Ex. PW6/B. PW7 Sh. [ENTITY] deposed that on 10.03.2002, he was conductor in the bus bearing no. DL-1PA-6035 and the bus was being driven by the accused and on that day, when the bus reached at Golcha Cinema Darya Ganj at about 8:40 am, PW7 heard the noise of public about an accident and thereafter, he got down from the bus and found one lady under the right wheel of the bus. She died on the spot due to the accident. PW7 informed the department.
PW8 Lady Constable [ENTITY] deposed that on 10.03.2002, at about 08:45 am, she received a call regarding an accident near Darya Ganj Kotwali Road and she passed over the information to Central District and after this, the case was handed over to IO who recorded the statement of PW8.
FIRNo.75/02 [ENTITY].[ENTITY] 27of27 PW9 Dr. [ENTITY] deposed that post-mortem report of deceased [ENTITY] Ex. PW9/A was prepared by Dr. [ENTITY] and he identified the handwriting and signature of Dr. [ENTITY] on the document.
PW10 IO/SI [ENTITY] deposed that on 10.03.2002, on receiving DD no. 10A Mark X-1 regarding an accident, he alongwith Constable [ENTITY] reached in front of Golcha Cinema Red Light, N.S. Marg, Darya Ganj where the vehicle bearing no. DL-1PA-6035 was found in accidental condition and dead body of lady was lying at the spot. Complainant was met at the spot and his statement was recorded. PW10 prepared rukka Ex. PW10/A and a case was registered through Constable [ENTITY]. PW10 inspected the spot and prepared site plan Ex. PW3/B at the instance of complainant. Bus was seized and accused was arrested and personally searched. DL of accused as well as insurance policy and copy of RC of bus were seized vide Ex. PW1/F and Ex. PW1/E respectively. Spot was got photographed through official photographer. IO wrote an application Ex. PW10/C for conducting of post-mortem and dead body was identified by complainant and PW4 and their statements were recorded in this regard. After post-mortem, dead body was handed over to PW3 and PW4. Bus was mechanically inspected. Bus was released on superdari to owner who had come to the police station vide superdarinama Ex. PW10/D. Statement of witnesses was recorded by PW10 and after his transfer, he handed over the file to MHCR. PW10 FIRNo.75/02 [ENTITY].[ENTITY] 27of27 identified the photographs of the spot as well as the bus during his testimony in the Court.
05. After closure of prosecution evidence, on 22.12.2012, the statement of the accused was recorded u/[SECTION] of [ACT]. Incriminating evidence was put to the accused and he was questioned generally on the case. He denied all the allegations and stated that he is falsely implicated in this case. Vide order dt. 22.12.2012, accused was held guilty. After order on sentence was passed, accused approached the Superior Court and matter was remanded back for trial after setting aside the judgment of conviction as passed by the then Ld. MM Sh. [ENTITY] with directions to give an opportunity to the accused for cross examination of witnesses i.e. PW3, PW5 and PW6. An opportunity was given for the same and accused chose to cross examine these witnesses. No fresh incrimination material came on record warranting recording of statement of accused afresh. Accused preferred not to lead defence evidence after being asked again in this regard. Accordingly, the matter was fixed for final arguments on 02.06.2016.
06. I have heard the final arguments from both the sides and have perused the evidence on record led by the prosecution carefully.
07. Ld. APP for the State has submitted that testimony of PW 3 proved the case of the prosecution beyond reasonable doubt, which not FIRNo.75/02 [ENTITY].[ENTITY] 27of27 only remains unshaken even during the cross-examination but is also supported by other witnesses. It is also submitted that accused has not disputed his presence or the factum of him being driver on the offending bus at the relevant time. It is also submitted that complainant faltered on the point of his position at the spot at a later stage during his cross examination on 04.12.2015 due to lapse of memory and considering that the matter pertains to the year 2002, complainant cannot be faulted for such memory lapse and such contradiction which came up only during further cross examination of the complainant on 04.12.2015 is not a material one.
08. Ld. Counsel for the accused has argued that the arguments advanced by the Ld. APP for the State are fallacious and merely based on suppositions and based on a wrong and misconceived premise. Ld. Counsel for the accused has submitted that accused was not at fault but the deceased lady had herself fallen from the divider on the road. It was also submitted that the vehicle of the accused never hit her and IO deliberately did not place on record the photographs of the front wheels of the bus and there is nothing to suggest that the right front wheels of the bus were blood stained. It is also submitted that the alleged factum of the running over of the right front tyre of the bus on the head of the deceased is not supported by the medical documents.
09. In order to bring home the guilt of the accused, the FIRNo.75/02 [ENTITY].[ENTITY] 27of27 prosecution was required to prove:
(1) that the accused was driving the offending vehicle on the date of the incident;
(2) that he was driving the same in a rash or negligent manner, so as to endanger human life and safety, and;
(3) that while driving so, he caused the death of injured [ENTITY] Whether accused was driving bus bearing no. DL-1PA-6035 at the date, time and place in question and whether accident took place with his bus? :
10. In order to prove this fact, prosecution examined Sh. [ENTITY] - an eye witness and son of the deceased [ENTITY] who deposed that a medical camp was organized by him on 10.03.2002 and a pooja ceremony was organized in the camp. In order to take part in the pooja, mother of PW 3 accompanied him from Preet Vihar. After parking the car at Daya Nand Road, PW 3 and his mother were crossing road on N.S. Marg near traffic signal, as traffic signal was green for pedestrian at that time. PW 3 also testified that the accused had come driving his bus in a fast speed and hit against his mother who was about two steps behind him. The front wheel of the bus crushed the head of his mother and accused stopped his bus after about 5-6 steps. He denied the suggestion that deceased had fallen down from the central patri at the same time FIRNo.75/02 [ENTITY].[ENTITY] 27of27 when signal got green for the pedestrian and accused started the bus. Accused has not disputed the presence of the bus at the spot at the time of accident. PW 7 who was conductor on the bus, also did not deny the presence of the bus at the spot and the said bus was being driven by the accused at the relevant time and place. He also stated that at the time of incident he was preparing bus tickets and came down from bus upon hearing noise, when put suggestions in this regard. He also deposed that he had seen the lady under the right wheels of the bus. PW10/IO SI [ENTITY] deposed that when he reached the spot on receiving intimation regarding accident, he found the bus bearing no. DL-1PA- 6035 in an accidental condition. He also deposed that the bus was seized at the spot. Seizure memo Ex. PW 1/B corroborates the factum of such seizure at the spot. PW 3 also deposed that the bus was seized at the spot and the accused was also arrested at the spot. IO also deposed that the accused was arrested at the spot. Arrest memo Ex. PW 1/C and seizure memo Ex. PW 1/B bear the signatures of PW 3 as a witness. The photographs of the bus show the accumulation of blood in a round circle just before the rear wheel of the bus on the right side. There is no cogent explanation offered to show that the body could have got under the bus, without being hit by it. Nothing much has come during cross- examination of PW 3 and IO/PW10 to shatter their testimonies in so far as the presence of bus and accused at the spot and the presence of dead body at the spot are concerned. PW3 is consistent on the point of sustaining of injuries by his mother due to collision with bus of the FIRNo.75/02 [ENTITY].[ENTITY] 27of27 accused. PW 3, PW 7 and PW 10 identified the accused in the court and PW 3 identified him as driver of the offending bus. The DL of the accused was seized along with documents of the vehicle at the spot. Accused has not led any evidence to disprove the occurrence of accident with his bus. He did not deny his presence at the spot. The identity of the bus is not in dispute and the same was produced in the Court by superdar [ENTITY], who was conductor on the bus on the fateful day and did not deny the presence of the bus and accused driver at the spot and seizure of the bus by the police. There is no motive for PW 3 to falsely implicate the accused. Hence, it is proved on record that the accused was driving the offending bus at the date, time and place in question and that accident took place with his bus as the same hit a pedestrian [ENTITY].
B. Whether the accident resulted in the death of the victim [ENTITY]?:
11. Accused has not disputed the death of injured [ENTITY] nor her identity was disputed, which are otherwise proved through ocular and documentary evidences. PW 3 deposed that his mother died on the spot after the accident. The post-mortem request letter Ex. PW 10/C reflects that the death of Smt. [ENTITY] was on the spot at 08:30 am. The complaint Ex. PW 3/A reflects that the mother of the complainant had died at the spot and testimony of PW 10 is consistent with this fact. Complainant [ENTITY] and his brother Sh. [ENTITY] (PW4) deposed FIRNo.75/02 [ENTITY].[ENTITY] 27of27 regarding identification of the dead body in JPN Mortuary. The report of the post-mortem examination of the deceased [ENTITY] has been proved by PW9. Accused did not dispute that the victim expired on the date, time and place in question, even though he disputed the manner of occurrence. Multiple fractures were noticed in the face and skull of the victim's body and such injuries were possible only when the victim was hit by a very hard object. PW 3 has denied the suggestion put by Ld. defence Counsel regarding fall of his mother on road side and deposed clearly that his mother was hit by the bus which also ran over her head. Hence, the factum of the death of the deceased [ENTITY] due to and as a proximate result to the road traffic accident with the offending bus stands proved.
C. Whether the accused was driving in a rash and negligent manner ?
12. Before proceeding further in this case, l deem it appropriate to discuss the meaning of the expressions "rash" and "negligent". The expression "rash" and "negligent" as used in [SECTION] [ACT] have been beautifully explained in the recent judgment of the Apex Court in [PRECEDENT]:
6. A negligent act is an act done without doing something which a reasonable man guided upon FIRNo.75/02 [ENTITY].[ENTITY] 27of27 those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not.
13. PW 3 testified that the accused was driving in a fast speed and that too when the traffic light was green for the crossing of the road by the pedestrian. Site plan Ex. PW 3/B shows zebra crossing on the road at mark B from where the deceased [ENTITY] is stated to have been trying to cross the road. On the controlled pedestrian crossings - as in the present case - on turning of the green signal of the traffic light, as a rule, the driver shall give the way to pedestrians to finish the crossing of the carriageway. It is prohibited to enter the zebra crossing, if there is a jam beyond it, which will force the driver to stop on a pedestrian crossing.
14. The line of defence taken by the accused to the effect that the deceased lady had fallen down from the divider and came under the rear wheel of the bus does not hold any water. At first, a bare perusal of the photographs of the offending vehicle at the spot reflects that there was very little gap between the offending bus and the divider on the road. It can be seen that the offending bus was being driven all along the central FIRNo.75/02 [ENTITY].[ENTITY] 27of27 verge. This in itself points out towards the negligence of the driver as the transport vehicles are not supposed to be driven along the central verge but on the extreme left side of the road. PW 7 accepted in his cross- examination that there was a bus stand just prior to the traffic signal where the accident took place and that many passengers had boarded and deboarded on that bus stand. It is evident that the bus stop must have been on the extreme left side of the two way road and the very act of the accused driver halting at the bus stand just before the traffic signal and then immediately bringing it on the central verge points out towards gross rashness on his part in moving the vehicle from one side to the other side (which was not meant for transport vehicles) within such a short span of time. Further, if the lady had fallen down from the divider, her body would have collided with the body of the offending bus as there was no proper space for her body to have fallen down on road straight. If the offending bus had already crossed the zebra crossing or was about to cross the zebra crossing and the deceased lady had in the meantime got disbalanced, it was not possible for the lady to have fallen on the ground without any part of her body having touched the bus first and it would not have been possible for her to have come under the bus just next to the rear wheels of the bus in such a situation. It could have happened only if the lady was hit by the bus while on the zebra crossing and pushed forward on to the ground, then fallen on the ground and the bus having moved ahead - while leaving her body behind - resulting in the body coming in close proximity with the rear wheels of the bus.
FIRNo.75/02 [ENTITY].[ENTITY] 27of27
15. Moving forward, even if it is assumed for a while that before the bus could move toward the zebra crossing, the lady fell down near zebra crossing, it can be seen that once the bus moved ahead of the zebra crossing before it stopped, it was just not possible for the bus not to have collided with the fallen lady while crossing the zebra crossing, considering that there was close proximity between the divider (central patri) and the offending bus and there was no scope for the bus to have bypassed the body of the lady lying on the road.
16. It is not the defence taken by the accused that as lady had accidentally fallen down from the divider, the driver could not take note of it or control his bus and ran over her body. The stand taken is that she had sustained injury due to fall on the road and not due to accident with the bus. There is no explanation that if at all the lady had sustained injury due to fall on the roadside, how was it possible for her head to have gone under the bus. Not only PW 3 but even the conductor of the bus testified that body of the lady had come under the bus. When the post-mortem report Ex. PW-9/A is examined, the defence of accused further falls flat. At first , it can be seen that it was not possible for the deceased lady to have hit the surface of road without colliding first with the offending vehicle, if at all such a defence of accused is seen prima facie. Further, accused has not led any evidence in defence to show that the deceased lady had fallen down from the central divider. There is no reason FIRNo.75/02 [ENTITY].[ENTITY] 27of27 attributed to PW3 as to why he would not disclose true facts and falsely implicate the accused. It can be seen that PW 3 is a relative of deceased being her son. However, this fact in itself does not make the testimony of PW 3 doubtful. In case titled as [PRECEDENT], it was observed that:
"In regard to the interestedness of the witnesses for furthering the prosecution version, relationship is not a factor to affect the credibility of a witness. It is more often than not that a relative would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if a plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible."
Further, in case bearing citation [PRECEDENT], it was reflected by Hon'ble Apex Court that
8."We may also observed that the ground that the witnesses being close relatives and consequently being partisan witnesses, should not be relied upon, has no substance "
The testimony of PW3 is intact on material aspects and he FIRNo.75/02 [ENTITY].[ENTITY] 27of27 denied that his mother had fallen down. He also testified that the accident occurred as the accused could not control his vehicle due to very fast speed. The post-mortem report further corroborated the factum of her being hit with a heavy object. PW3 testified that his mother was hit by the offending bus when she was trying to cross the road as the traffic light was green for the pedestrian and that due to the collision, she had fallen down on road and driver had ran over her head. The testimony of the complainant regarding the manner of accident is consistent with his complaint Ex. PW3/A and he remained consistent during his testimony on this point even during the rigorous of his further cross-examination and that too after a gap of about 13 long years. Post-mortem examination shows the deceased lady having sustained multiple injuries, including fracture of the skull. The report Ex. PW9/A mentions that -
1. Contused laceration 2x1 cm, deep on right side of head, 4 cm above,
2. Contused laceration 2x0.5 cm, on lower part of right ear, with part of lobule missing
3. Contused laceration 4x1cm bone deep on lower end of right jaw
4. Abrasion 2.5x1 cm on outer end of right eye brow,
5. Abrasion 10x9 cm, on right side of face
6. Contused laceration 17x1 cm bone deep on left side in fronto parietal area, FIRNo.75/02 [ENTITY].[ENTITY] 27of27
8. Contused laceration 1x0.5x0.5 cm on outer end of left eye brow,
9. Contused abrasion 42x17 cm on back of chest
10. Swelling deformity of both shoulders with underlying fracture of head humorous, In the column no. F under the heading head and scalp, it is mentioned - Effusion of blood in scalp muscles in both fronto-parietal areas, face compressed from sides with multiple fracture of face, multiple fracture of skull. In the column of opinion it is mentioned - Death is due to cranio-cerebral damage consequent upon blunt force/surface impact to the head. All injuries are ante-mortem, recent in duration and could be caused due to vehicular accident.
Considering the eye witness account of PW3, post-mortem report and photographs of the vehicle, it can be concluded that accident indeed occurred due to collision with the bus. PW 3 is a reliable witness and needless to say that being the son of the deceased, he would be most interested to see that the guilty is taken to task and his testimony cannot be doubted merely on account of the fact that he is related to the deceased. He is consistent in his testimony and his testimony could not be shattered even during his cross-examination and hence PW 3 cannot be termed as an interested witness. As far as the presence of accused at the spot and him driving the offending bus is concerned, the same is FIRNo.75/02 [ENTITY].[ENTITY] 27of27 proved through the testimonies of IO, PW3 and the testimony of conductor of the bus Sh. [ENTITY].
17. Ld. defence counsel also argued that there is no crush injury reported in the post-mortem and hence, the deposition of PW3 to the effect that the right wheels of the bus had run over the head of her mother is negated. I find no merit in such a submission either. An eye witness deposed regarding what he perceived with his bare eye in that flicker of a moment at the time of accident. He could not be expected to see the extent of damage caused to a particular part of body. This is to be seen through the medical evidences. It can not be conclusively said that whenever wheels of a bus hit against the head of a pedestrian lying on road, it would inevitable tear apart the head/skull and crush it in toto. A lot depends on which part of the head is so hit and what was the position of the head and whether the head was brutally crushed under the wheels or it was merely touched by the wheels from a side. Nonetheless, even if this part of the testimony of PW3 is discarded, it can be seen that his testimony not just talks about the wheels having run over the head of his mother but he also testified that his mother was at first hit by the offending bus at a fast speed and same had resulted in her mother falling on the road and the vehicle had run over her. Hence, the factum of accident with the vehicle of accused is proved. The death is stated to have occurred on the spot itself after the accident. Now, it is immaterial whether the falling down on road and coming in contact with the surface FIRNo.75/02 [ENTITY].[ENTITY] 27of27 of road or the subsequent act of the bus having run over the head or any other part of the body of the mother of PW3 resulted in the death.
18. An argument was advanced by Ld. defence counsel that IO did not place on record the photographs of the front right wheels of the bus to show blood marks on the front wheels. However, mere factum of non-placing on record of any such photographs does not throw away the case of the prosecution which is otherwise credible and proved through the ocular testimony of PW3 which remains largely consistent. An argument was also advanced by Ld. defence counsel that as blood was found accumulated near the rear wheels of the bus, the bus could not have collided with the deceased from the front right side. Such an argument is also fallacious. It can not be lost sight of that as per the deposition of PW3, the bus had moved for a few paces after hitting his mother and then come to a standstill and hence, unless the body was flung away by the vehicle or dragged along with the vehicle, it must have been left behind and could not have been found near the front wheels. It can be seen that blood marks is present on the right side and hence, it strengthens the stand taken by PW3 that his mother was hit and run over by the vehicle. PW3 did not anywhere state that his mother was dragged by the vehicle. Ld. Counsel for the accused argued that had the bus hit the mother of the PW3 in a high speed, the body must have been dragged and shifted from the place of occurrence to some distance. However, I did not find merit in such a submission. Though PW3 testified that the FIRNo.75/02 [ENTITY].[ENTITY] 27of27 offending bus was being driven at a speed of about more than 60-70 Km per hour, from this fact itself, it can not be assumed that the body of the deceased was also dragged. A lot depends on the position of the body, the impact felt on it, the side and corner of the vehicle from which it was hit and on what part it was hit. It was also argued by Ld defence counsel that the offending vehicle could not have been at a fast speed. In this regard, it can be seen that PW 3 was not in possession of a speedometer and merely speculated the speed and could have faltered on the point of exact speed. Speed is a relative term and once witness perceived it as 'high speed', it was indeed more than the desired speed at that juncture. PW3 could not be expected to keep a track on exact speed of the vehicle but from what he saw, he could have at least inferred if the speed was high or slow in the fact and circumstances of the case. Even if the offending bus not exactly at a speed of 60-70 km per hour, it can be seen that the speed is a relative term. When a vehicle moves after stopping at bus stop and thereafter at a red light and is supposed to pass through a zebra crossing on a busy road, the driver of a heavy transport vehicle is expected to take extra care and caution. The standard of care is high in such cases. No suggestion was put to PW3 to suggest that his mother had not started to cross the road through a zebra crossing when light was green for her. PW3 stressed on the fact that light was green for the pedestrian when her mother was crossing the road. No suggestion was given to PW3 to the effect that her mother had suddenly come on zebra crossing when signal was green for the vehicles. Instead, a suggestions as given to the effect FIRNo.75/02 [ENTITY].[ENTITY] 27of27 that her mother had already crossed the road and had slipped from the divider. Such a suggestion does not carry any weight in view of the discussion above said. Even if the light had turned green for the vehicles while mother of PW3 was crossing the road, still it was expected of the accused to have waited instead of moving his vehicle.
19. In his statement under [SECTION] of [ACT], accused stated that his bus was stationary on the traffic light. The same goes to show that there was a red signal for the vehicles at the spot and hence, the pedestrian can not be faulted in attempting to cross the road. It has been proved on record that the pedestrian was hit by the vehicle of accused and hence, only two possibilities can be there - either accused moved his vehicle in a hurry when the light was red for him in anticipation of the light to turn green for him or that he moved the vehicle as soon as he saw green light without taking into account that some old lady was already on the zebra crossing and trying to cross the road. According to the testimony of PW3, the old lady was moving from one side of the road towards the central divider. The position of the old lady on the road shows clearly that she had not suddenly embarked on the zebra crossing. The deceased is stated to have been old lady more than 70 years of age and hence, it can be logically deduced that she must not have been running on the road. Hence, her presence at the fag end of the road near the divider clearly shows that she had almost crossed the road when due to negligence and sudden driving by the accused, she met an ill fate FIRNo.75/02 [ENTITY].[ENTITY] 27of27 and died.
20. Ld. Counsel for the accused vehemently argued that testimony of PW3 could not be relied upon on the ground that he faltered and digressed from his statement to the police in Complaint Ex. PW3/A and stated to the contrary on the point of his position on the road when the accident occurred. It was argued that while in his examination-in-chief and in his second cross-examination dated 07.10.15, PW3 testified that his mother was moving behind him on road and while he had already crossed the road, his mother was in the process of crossing the road, during his further cross-examination dated 04.12.15, he testified that his parents were ahead of him and he was behind. It was also argued that while PW3 did not specify regarding presence of his father at the spot in his Complaint or examination-in-chief, he testified so during his third cross-examination dated 04.12.15 and hence, such an improvement can not be ignored and is a material one. It was also argued that IO did not join father of PW 3 as a witness and there is no independent witness joined by the IO and PW3 is the sole eye witness examined and hence, no much reliance can be placed on his testimony.
In case titled [PRECEDENT], while dealing with this issue, Supreme Court observed as under:-
"In the depositions of witnesses there FIRNo.75/02 [ENTITY].[ENTITY] 27of27 are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such a shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and are not expected of a normal person."
Keeping in mind the aforesaid judgment, when testimony of PW3 is scrutinized carefully, I do not find the above-mentioned facts as material contradictions or improvements. As far as the presence of husband of the deceased at the spot is concerned, PW3 has himself clarified why he did not mention this fact to IO. He testified that " Vol. as nobody asked whether my father was also crossing the road alongwith me and my mother, therefore I did not state the same". Hence, such omission on the part of PW3 to testify regarding the presence of his father at the spot is not significant and cannot at all be considered as contradiction. FIR is not an encyclopedia and it cannot be expected for an informant to disclose each and every minute detail in the FIR statement. Further, it can be seen that when mother of PW3 was 70 years old, his father in all likelihood must have a senior citizen too and hence, the omissions of IO to join him as a witness in his own wisdom does not throw away the prosecution case. It could have been that IO did not at all FIRNo.75/02 [ENTITY].[ENTITY] 27of27 make enquiries from him. It is well-settled that it is not the number of witnesses but the quality of evidence which counts.
21. Moving further to the statement of PW3 in his last cross- examination dated 04.12.15 to the effect that his mother was ahead of him, it can be seen that PW3 stated in his examination-in-chief and further in his cross-examination dated 07.10.15 that his mother was behind him. Such a statement on his part was consistent with his Complaint Ex. PW1/A. It can not be lost sight of that PW3 was cross- examined after a gap of about 13 years and there was a gap of about two months even in his second cross-examination dated 7.10.15 and third cross-examination dated 4.12.15. The memory of a person is not like a computer program and may lapse with the delay of considerable period. Being well aware of this fact, Ld defence Counsel made it a point to put the same question to PW 3 in his cross-examination on this point twice, first, during his cross-examination dated 07.10.15 and subsequently in his cross-examination dated 04.12.15. Further, it can be seen that while Ld. Counsel for the accused asked the complainant that he had stated in his earlier statement on 11.07.2005 that he was going ahead of his mother, he was not confronted either with his complaint Ex. PW 3/A or with his examination-in-chief dated 11.07.2005 and never had an occasion to go through his complaint and examination-in-chief dated 11.07.2005 to explain this anomaly. Further, it can be seen that even in his second cross-examination dated 07.10.2015, complainant categorically stated that his mother was behind him and this fact was conveniently ignored by FIRNo.75/02 [ENTITY].[ENTITY] 27of27 Ld. Defence Counsel. Hence, from the discussion above-said, it can be seen that the contradiction in the cross-examination and further cross- examination of PW3 regarding his position vis-a-vis his mother is not material and can be seen as a mere memory lapse. PW 3 was never confronted as per law with his complaint Ex. PW 3/A or examination-in- chief or second cross-examination dated 07.10.2015 and was never afforded an opportunity to explain this contradiction. Further, it can be seen that even during his cross-examination dated 04.12.2015, PW 3 maintained that his mother had not crossed the road and she was just near the divider when she was hit by the bus. On careful examination of the entire evidence, it can be said that the contention of Ld. Counsel for accused that no reliance can be placed on the evidence of PW3 is without substance. His evidence as well as the evidence of the other prosecution witnesses could not be impeached, in spite of the searching cross- examination. PW3 is an interested and unreliable witness is clearly misconceived, even though he can be termed as a solitary witness. In judgment bearing citation [PRECEDENT], It was observed that "the law of evidence does not require any particular number of witnesses to be examined for proving a relevant fact. However, in cases where the decision rest on the evidence of single witness, the court has to be circumspect and analyzed the evidence of such witness with due care and FIRNo.75/02 [ENTITY].[ENTITY] 27of27 caution. If the evidence of the witness inspires confidence and received corroboration from the attending circumstances, there can be no impediment in convicting the accused on the basis of his evidence".
In the case at hand, no such material contradiction in the evidence of PW 3 are brought on record during his cross-examination. Ld. Counsel for the accused has referred to the improvement made by the witness over his police statement by stating regarding presence of his father for the first time in his deposition before the court. But such a fact is in the nature of a mere elaboration and not contradiction. Such a fact did not dilute the testimony of PW 3 nor gave a different contour or colour of the evidence of PW 3 or change the complexion of the case.
22. The Counsel for the accused also relied on the citation [CASE NUMBER] in support of his contentions but the same is not applicable in the facts and circumstance of the present case. On the basis of afore- said discussion, it can be concluded that the accused was driving in a rash and negligent manner.
23. Therefore, on the basis of the above observations on law and facts, the court is of the considered view, that through the ocular FIRNo.75/02 [ENTITY].[ENTITY] 27of27 evidence with corroborative documentary evidence, the prosecution has proved its case beyond reasonable doubt and clearly established the guilt of the accused [ENTITY]. Accordingly, accused [ENTITY] is convicted of the offence under [SECTION] A [ACT]. Copy of the judgment be provided to accused free of cost.
24. Let the accused be heard separately on the point of sentence.
25 Copy of the judgment be placed on the official website.
ANNOUNCED IN THE OPEN (MUNEESH GARG) COURT ON 31.08.16 [PRECEDENT] FIRNo.75/02 [ENTITY].[ENTITY] 27of27