1 IN THE COURT OF SH. [ENTITY] CHIEF METROPOLITAN MAGISTRATE: DELHI State Vs. [ENTITY] FIR No. 82/01 PS: DBG Road U/[SECTION] [ACT] Case ID No. 02401R1347112008 JUDGEMENT
A) Sl. No. of the case : 305/2 B) The date of commission : 04.12.2001 of offence C) The name of the complainant : [ENTITY] S/o Sh. [ENTITY] D) The name & address of accused :[ENTITY] S/o Sh. [ENTITY] R/o 38/3020, Beadon Pura, Hardhian Singh Road, Karol Bagh, Delhi. Permanent Address: G8, Sector 56, Noida(U.P) E) Offences complained of : U/[SECTION] [ACT] F) The plea of accused : Pleaded not guilty G) Final order : Convicted H) The date of such order : 28.08.2012 Date of Institution: 04.12.2001 Judgment reserved on: 27.08.2012 Judgment announced on: 28.08.2012 THE BRIEF REASONS FOR THE JUDGEMENT: 1. Briefly stated the case of the prosecution is that on
31.03.2001 at about 12.30 night near Bus Terminal Bus Route no. 350, DBG Road, Delhi within the jurisdiction of PS DBG Road, the accused [ENTITY] was driving a bus bearing registration No. DL1PA 2583 on route no. 521 on the public way in rash and/or negligent manner so as to endanger human life and personal safety of others and while driving so, he hit against one [ENTITY] who was standing near the pavement which resulted into her death.
2. The present case was registered on the basis of DD No. 2A dt. 31.3.01 regarding road accident. The case of prosecution as per charge sheet is that on receipt of DD no. 2A on 31.3.01, SI [ENTITY] alongwith [ENTITY] rushed to the spot i.e near Naz Cinema, DBG Road, Delhi where the deceased had already been removed to RML Hospital by PCR Van and blood was lying at the spot. SI [ENTITY] recorded the statement of one person namely [ENTITY] wherein he disclosed that on that day when he alongwith his friend namely [ENTITY] S/o Sh [ENTITY] came out from Jhandewalan Mandir at about 12.30 A.M and were standing on the other side of the road and were waiting for their other friends, one bus under DTC operation plying on route no. 521 being driven in rash and negligent manner came from the side of [ENTITY] and crushed his friend namely [ENTITY]. The said bus was stopped at some distance on which he had noted down its registration number DL1PA 2583. At that time, he also saw the driver of the said offending bus who ultimately fled away from the spot alongwith the bus. He requested two wheeler scooter riders to chase the said bus. PCR Van came to the spot who removed the deceased to the hospital. Thereafter, SI [ENTITY] rushed to RML Hospital and obtained [CASE NUMBER] of deceased [ENTITY] who had been declared brought dead in respect of offences U/[SECTION] [ACT]. During the course of investigation, he prepared site plan, got the spot photographed, seized the offending bus no. DL1PA 2583 and also got the postmortem of the dead body conducted. It is also mentioned in the charge sheet that IO got the aforesaid offending bus mechanically inspected and arrested the accused in this case. After completion of investigation, charge sheet in respect of offences U/[SECTION] [ACT] was prepared and filed in the court against accused and accordingly cognizance was taken by Ld. Predecessor.
3. Complete copies were supplied to accused as per compliance of [SECTION] [ACT] and arguments on notice were heard. Ld predecessor framed the notice for the offences U/[SECTION] [ACT] [ACT] against the accused vide order dated 07.02.03.
4. Prosecution has examined nine witnesses in support of its case namely PW1 [ENTITY], PW2 [ENTITY], PW3 [ENTITY], PW4 Dr. [ENTITY], PW5 Sh [ENTITY], PW6 [ENTITY], PW7 SI [ENTITY],PW8 [ENTITY] and PW9 Sh [ENTITY].
5. Thereafter, the statement u/[SECTION] [ACT] of accused was recorded on 08.08.12 wherein his defence was of general denial. He admitted that he was driving DTC bus no. DL1PA 2583 on the date of accident in question at the same place. However, he further stated that incident took place during the days of Navratras. There was crowd on the road and people were playing drums. The deceased was dancing and he suddenly came in front of his bus and sustained injuries due to which he died. However, there was no rashness or negligence on his part. He claimed that he is quite innocent and has been falsely implicated in this case. However, he opted not to lead any DE.
6. I have already heard Ld. APP for the State and Ld defence counsel of accused . I have also perused the record carefully.
7. In order to bring home the guilt of accused for the offences charged against him, the prosecution was required to prove the following points:
1. That it was the accused who was driving the offending bus no. DL1PA2583 at the time of accident;
2. That the accused was driving the offending bus in rash and/or negligent manner;
3. That the accused had caused the accident in question while driving the offending vehicle in rash and negligent manner; and
4. That due to accident, death was caused or in other words, accident was the proximate cause of death.
8. Now it has to be examined as to whether the prosecution has been able to bring home the guilt of accused beyond shadow of doubt or not.
PW1 [ENTITY] is Duty Officer who has proved the carbon copy of FIR as Ex.PW1/A and endorsement on rukka at point A. The said witness has not been cross examined by the accused despite grant of opportunity.
PW2 [ENTITY] is the alleged eye witness who entered into the witness box and deposed that he alongwith his friend namely [ENTITY] went to Jhandewalan Mandir during Navratras. At about 10 or 10.30 P.M after coming from the Mandir, they were standing on the road when one bus having route no. 521 under DTC bearing registration no. DL1PA 2583, came from the side of [ENTITY] at fast speed and hit against [ENTITY]. He further deposed that said bus after hitting deceased [ENTITY] did not stop and fled away from the spot. He further deposed that he chased the said bus while taking lift on two wheeler scooter and had also saw that said bus also hit against the grill which was on the middle of the road. He gave statement EX PW2/A to the police. Bus as well as DL of accused were taken into police possession vide memos Ex PW2/B and PW2/C. He further deposed that after conducting postmortem, he had received the dead body of his friend vide memo Ex PW2/D. During his cross examination, he deposed that police met him at the spot on the same day and his statement was recorded by SI [ENTITY]. He had signed his statement Ex PW2/A after duly reading the same himself. However, when he was confronted with his statement Ex PW2/A, he admitted that the time of incident has been mentioned as 12.30 night and also that there is no mention in the said statement that he himself chased the offending bus after accident. However, he denied the suggestions given by the accused that deceased [ENTITY] was crossing the road by running due to which accident took place or that he was not present at the spot.
PW3 [ENTITY] entered into the witness box and deposed that on that day, he alongwith IO were present at bus stand no. 350, Karol Bagh where they found one bus bearing registration no. DL1PA 2583 under DTC near the railing. He remained at the spot while IO went to RML hospital. After sometime, IO came back to the spot from the hospital. He deposed that the dead body of deceased was sent to Mortuary and on next day, the dead body was handed over to his relative vide memo Ex PW2/D. During his cross examination, he deposed that he had reached the spot alongwith IO at about 1 A.M from where he came to know that deceased person had already been removed by PCR. He also deposed that IO did not ask about the incident from any public person and no statement of public was recorded by IO in his presence.
PW4 Dr. [ENTITY], Sr. Resident in department of Forensic Medicine, Maulana Azad Medical college deposed that on 31.3.01, he had conducted the postmortem on the dead body of [ENTITY] and proved his report regarding postmortem of the body of deceased [ENTITY] as Ex. PW4/A. He deposed that all the injuries on the body were antimortem in nature consistent with vehicular run over accident and death was caused due to hemorrhage shock resulting from the injuries. During cross examination, he denied the suggestion that the injuries were inflicted by falling himself over a vehicle.
PW5 Sh [ENTITY] deposed that on 31.3.01, he had conducted the mechanical inspection of the vehicle bearing registration no. DL1PA 2583 on the request of IO and submitted his report Ex PW5/A. The said witness has not been cross examined by the accused despite grant of opportunity.
PW6 [ENTITY] Record Clerk, RML Hospital has proved the MLC Ex PW6/A which was prepared by Dr. [ENTITY], CMO. He stated that said doctor had already left the services of the hospital and his present whereabouts were not known to him. During cross examination, he deposed that he had not done any duty with Dr. [ENTITY] during his service period. He could not tell as to who had made cutting on Ex PW6/A. PW7 SI [ENTITY] is IO of this case. He deposed that on 31.3.01, on receipt of DD no. 2A, he had reached the spot where he came to know that deceased had already been taken to RML hospital by PCR Van. He further deposed that one [ENTITY] met him at the spot and he recorded his statement Ex PW2/A. He prepared rukka Ex PW1/A. He also deposed that offending bus was taken into possession vide memo Ex PW2/B. He had also prepared site plan Ex PW7/B. He also deposed that RC and photocopy of insurance were also seized by him vide memo Ex PW7/C. He also arrested the accused vide memo Ex PW7/D. Driving license of the accused was also seized vide memo Ex PW2/C. He collected the postmortem report Ex PW4/A and handed over the dead body of deceased to his relative vide receipt Ex PW2/D. The statements of identification of dead body were recorded vide memos Ex PW3/A and PW3/B. He further deposed that the said offending bus was also got mechanically inspected vide memo Ex PW5/A. The said witness has not been cross examined despite grant of opportunity.
PW8 [ENTITY] deposed that on 31.3.01, he was called at the spot by IO SI [ENTITY] and had taken five photographs of the spot from different angles vide Ex PW8/A1 to A5. He deposed that the wheel of bus bearing registration no. DL1PA 2583 was on the patri. He also proved the negatives of the said photographs as Ex PW8/B. The said witness has not been cross examined despite grant of opportunity.
PW9 namely Sh. [ENTITY] is the registered owner of offending bus no. DL1PA 2583, he testified that notice U/[SECTION] [ACT] was replied by him vide reply Ex PW9/A. He categorically deposed that on 31.3.01, the said bus was being driven by accused [ENTITY]. He got the said bus released on superdari and also proved the photographs of the said bus as Ex PW8/A1. Identity of the offending bus has not been disputed by the accused throughout the trial.
During his cross examination by accused, PW9 claimed that he had two vehicles including the offending bus in question in the year 2001.
9. While opening his argument, Ld. defence counsel argued that PW2 [ENTITY] is an interested witness who has been planted by prosecution in order to falsely implicate the present accused. Ld. defence counsel while referring to the relevant portion of PW2 whereby he deposed that accident took place at about 10 or 10.30 PM and also he himself had chased the offending bus while sitting on two wheeler scooter by taking lift, argued that said portions of his statement are missing in police statement Ex PW2/A made by him to the police immediately after the accident in question. Ld counsel while referring to the relevant portion appearing in the cross examination of PW2 wherein he stated that he had signed 2/3 papers produced by the police, further contended that said 2/3 documents were blank and therefore, the testimony of said witness is not reliable and should be brushed aside. It was further argued that accused was not apprehended at the spot even as per the case of prosecution but still investigating agency did not get the TIP of accused conducted immediately after his arrest which is a serious lacuna in the case of prosecution benefit of which should be given to the accused in this case. Another bone of contention raised on behalf of accused has been that IO did not make any effort to join any independent public witness during investigation despite the fact that public persons were available there as incident is shown to have taken place at DBG Road. Therefore, prosecution has failed to prove its case against the accused beyond reasonable doubt.
10. On the other hand, Ld. APP for the State has argued that PW2 [ENTITY] has fully supported the case of prosecution on material points regarding identity of the accused to be the driver of the offending bus at the time of accident as well as his rash and negligent conduct while driving the offending bus at that time. Ld APP for the State while referring to the testimony of PW4 namely Dr. [ENTITY] as well as PM report Ex PW4/A proved by said witness, also argued that the death of deceased is shown to have been caused due to road traffic accident which corroborates the testimony of PW2 Sh. [ENTITY]. Ld APP therefore, submitted that in view of the ocular evidence as well as medical evidence proved on record, prosecution has successfully established the charges against the accused in respect of offences U/[SECTION] [ACT].
11. The star witness of the prosecution i.e PW2 [ENTITY] is the alleged eye witness. He has categorically deposed during chief examination that accused herein namely [ENTITY] was driving the offending bus at the time of accident. He has also categorically stated that accident was caused due to rashness in driving the said bus by the accused. Said witness very categorically stated that the accused had stopped the bus after hitting the deceased namely [ENTITY] and at that moment , he had the occasion to note down its registration number as well as to see the accused.
12. The Court does not find any substance/force in the contention raised on behalf of accused that PW2 is an interested witness or that he has been introduced as a witness in this case in order to falsely implicate him in this case merely because he happened to be friend of deceased [ENTITY] or due to the fact that there are minor contradictions appearing in his statement vis a vis the prosecution story.
It is well settled law that statement of a witness can not be discarded merely because he happened to be friend of deceased when testimony of such witness otherwise inspires confidence. Still if any authority is required then reference with advantage can be made to the judgment reported at [PRECEDENT] wherein it was observed in Para 4 "It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinizing the evidence of the interested sole witness. The prosecution's nonproduction of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement"
13. As per prosecution story, the offending bus which caused the accident was seized at the spot itself and its registration number has been correctly deposed by PW3 [ENTITY]. The accused has nowhere disputed during the entire trial that he was not driving the said offending bus no. DL1PA 2583 on the alleged date, time and place of the accident. Rather, the accused has admitted this fact during cross examination of PW2 as well as his statement u/[SECTION] [ACT] that he was driving the said bus at about 12.30 am on 31.3.01 at the alleged place. The accused has taken contradictory stands during cross examination of prosecution witnesses visavis his statement U/[SECTION] [ACT] recorded before the Court. During the cross examination of PW2 [ENTITY], accused suggested the witness that deceased [ENTITY] was crossing the road by running as a result of which the accident took place. However, in his statement U/[SECTION] [ACT], accused claimed that there was crowd on the road and people were playing drums as the incident had taken place during days of Navratras and the deceased who was dancing on the road, suddenly came in front of his bus sustaining injuries resulting into his death. Even otherwise, the accused has not been able to prove either of the aforesaid two stands in cross examination of prosecution witnesses or otherwise. He has failed to examine any witness during defence evidence. In view of the said admission on the part of accused as well as the testimonies of prosecution witnesses as discussed above, there is no scope for any doubt regarding the presence of PW2 [ENTITY] at the spot and the accused having caused the accident in question with the offending bus no. DL1PA2583.
14. So far as the minor contradictions appearing in the statement of PW2 are concerned, it is relevant to note that such minor contradictions are quite natural and bound to occur with the passage of time. There is no substance in the argument raised on behalf of accused that the testimony of PW2 is liable to be brushed aside merely because he stated the time of accident as 10/10.30 P.M as contrary to the prosecution story which provides that the accident had taken place at about 12.30 A.M. It has to be kept in mind that accident had taken place on 31.3.01 whereas the statement of PW2 was recorded on 14.11.03 i.e after the gap of more than two years or so. It is also quite immaterial as to whether Sh [ENTITY]) himself chased the offending bus after taking lift on two wheeler scooter or he requested riders of two wheeler scooter passing through the spot, for chasing the offending bus. What is material to be seen in this case is as to whether the accident had taken place due to rash and / or negligent driving of offending bus in question by the accused herein or not.
It has been held by Hon'ble Apex Court in the judgment reported at [PRECEDENT] that well established principle of law is that every discrepancy in the statement of a witness can not be treated as fatal to the prosecution case.
15. In another judgment in the matter titled as "[PRECEDENT], it has been held that in the deposition of witnesses, there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation and normal errors of memory due to lapse of time and due to mental disposition such as shock and horror at the time of occurrence and the like. It was further observed that traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial.
16. It is nowhere the case of accused that he was previously known to PW2 [ENTITY] or to any of the other prosecution witnesses examined during trial or that PW2 had any previous enmity with him which prompted him (PW2) to depose falsely against him. No motive whatsoever has been attributed by accused on the part of PW2 which may persuade this Court to disbelieve the testimony of said witness.
17. The next bone of contention raised by Ld. defence counsel that despite availability of other public persons at the spot, no independent public witness has been joined during investigation which creates doubt in the prosecution case and benefit of doubt should be given to the accused, does not carry any force. PW2 is a public person and he's not a police official. There is no reason for PW 2 to falsely implicate the accused in the present case. Even there is no reason for the other police officials to falsely depose against the accused or to implicate the accused. It is not uncommon these days that people are reluctant to become witness in criminal trial cases. In such circumstances, no benefit can be given to the accused for not joining off independent public witnesses. It is a matter of common knowledge that public persons are reluctant to become witnesses of criminal trial. It has been held in a number of judgments by Hon'ble Supreme court and High Courts that merely because public witnesses are not joined in a case, prosecution case cannot be thrown out.
18. vs. Anil Singh AIR 1988 Sc In the case of State of U.P. 1998, it was held that in some cases the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out to the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.
19. Hon'ble Supreme Court in the case of [PRECEDENT], held that it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses of the close relative of the deceased are under constant threat and they dare not depose the truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses. It was also held that non examination of investigating officer of the case is no ground to discard the evidence of eye witnesses. Similarly in the case of [PRECEDENT] ; [PRECEDENT] and in the case of [PRECEDENT] it was held that These days people in the vicinity where the incident took place avoid to come forward to give evidence and civilized people are insensitive when crime is committed even in their presence and they withdraw both from the victim and vigilante.
20. In another matter titled as "[PRECEDENT] decided on 22.07.08, it has been observed as under: " That leaves us with the submission of the counsel for the appellant which is, that no independent public witnesses were joined in the investigation. To our mind, this attains importance if we otherwise disbelieve the testimony of the witnesses produced before us or we find that the evidence placed before us is otherwise weak. While it may be a wholesome practice to join general public in criminal investigation, the ground realities may be different. It is well known that public at large do not wish to get involved in criminal cases because of the travails of a trial ".
21. The contention raised on behalf of accused that investigating agency was bound to get his TIP conducted during the stage of investigation and same having being not done in this case, benefit of doubt ought to be given to him, does not hold water. It has been held by Hon'ble Apex Court in the matter titled as " [PRECEDENT]" in [CASE NUMBER] decided on 15.1.57 that the absence of TIP in all cases is not vital and if the accused person is well known by sight, it would be wastage of time to put him up for investigation. Of course, if the prosecution fails to hold an identification on the plea of the witnesses already knowing the accused well and it transpired in the course of trial that the witnesses did not know the accused previously, the prosecution would raise the risk of loosing its case.
Similarly, it has been held in another judgment titled as "
[PRECEDENT] by Hon'ble Apex Court that in absence of TIP would not necessarily fail where there are other corroborating stands pointing to the guilt of accused.
22. Applying the ratio of law laid down by Hon'ble Apex Court in the aforesaid authorities to the facts of the present case, it is crystal clear that PW2 Sh. [ENTITY] had ample opportunity to see the face of accused at the spot and he has categorically identified the accused to be the driver of offending bus during trial before the Court. Not even a single suggestion has been given by the accused to the witness during his cross examination that he was not present at the spot or that he (accused) was previously known to the said accused prior to the accident in question. No question whatsoever has been asked during cross examination of PW2 on the aspect of rash and negligent driving of offending bus at the time of accident. Infect, accused himself has admitted the presence of said witness at the spot by putting a suggestion during his cross examination that deceased was crossing the road by running due to which accident took place.
23. Moreover, PW9 Sh [ENTITY], (registered owner of the offending bus in question) has also categorically deposed during trial that it was the accused who was driving the offending bus at the time of accident in question. No suggestion whatsoever was put during his cross examination that accused was not driving the offending bus at the time of accident in question. That being so, Court is of the view that absence of TIP of accused in this case is entirely irrelevant and immaterial.
24. Mechanical Inspection report Ex.PW5/A(which remained unchallenged during trial) clearly shows that offending vehicle was found fit for road test and its horn, foot brake, etc. were in working condition. Postmortem report Ex.PW4/A proved by PW4 namely Dr. [ENTITY] who conducted postmortem examination of dead body of deceased [ENTITY] shows that death was due to hemorrhage shock caused by the injuries. The relevant portion of testimony of PW2 in this regard coupled with other evidence (oral as well as documentary evidence) in the form of mechanical inspection report Ex.PW5/A and postmortem report Ex.PW4/A proves beyond doubt that the offending vehicle was being driven in rash and negligent manner at the time of accident and due to said reason, the offending bus ran over deceased [ENTITY] resulting into his death.
25. In the light of the aforesaid discussion, Court is of the view that prosecution has been able to prove its case in respect of offences U/[SECTION] [ACT] against accused [ENTITY] beyond reasonable doubt. Consequently, I hereby convict accused [ENTITY] for the offences U/[SECTION] A [ACT].
Announced in open Court ([ENTITY]) Dated: 28.08.2012 Chief Metropolitan Magistrate: Delhi.