Delhi District Court
State vs . Man Mohan Malhotra on 30 August, 2013
FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 IN THE COURT OF VIDYA PRAKASH: CHIEF METROPOLITAN MAGISTRATE: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI FIR No.:108/00 PS: DBG Road U/s 279/337/304A IPC State Vs. Man Mohan Malhotra Unique ID No.: 02401R1328202008 J U D G M E N T:
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(a) S.No. of the case : 216/2
(b) Name of complainant : Smt. Prem Lata w/o Late Sh. Ram Babu Gupta, r/o D4/494, Sultan Puri, Delhi.
(c) Date of commission of offence : 24.05.2000
(d) Name of the accused : Man Mohan Malhotra
S/o Sh. P.R. Malhotra,
R/o H. No.297, Dhaka Johar,
Mukherjee Nagar, Delhi.
(e) Offence complained of : U/s 279/337/304A IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 30.08.2013
(h) Final Order : Convicted
(i) Date of such order : 30.08.2013
State V/s Man Mohan Malhotra (" Convicted") Page 1 of 27
FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. The facts of the case in brief are that on 24.05.2000, upon receipt of DD no.22 regarding some road accident, HC Sanjay Kumar alongwith Constable Sunder Lal reached the spot i.e. at Rani Jhansi Road near Fire Station where they found one two wheeler scooter bearing registration no. DL8SG3560. They came to know that injured persons were shifted to some hospital for treatment. Thereafter, on receipt of DD no. 23, HC Sanjay Kumar went to Hindu Rao Hospital and collected MLC of injured Om Narayan who was declared unfit for statement by the examining doctor. Thereafter, on receipt of DD no.25, HC Sanjay Kumar went to Lady Harding Hospital and collected MLC of injured namely Smt. Prem Lata and recorded her statement who disclosed that at about 10:45 AM, she was going towards Sabzi Bazar, Manak Pura for purchasing some medicines and was crossing the road near the Fire Station, suddenly one scooter bearing registration no. DL8SG3560 of red colour came from the side of Filmistan Cinema in a very high speed and in rash and negligent manner and hit her and another old man, who was also crossing the road, due to which both of them fell down on the road and sustained injuries. Driver of the said two wheeler scooter stopped his said scooter and took other injured, who was bleeding, to some hospital in one TSR. Before leaving the spot, driver of the said scooter disclosed his name as Manmohan Malhotra s/o Sh. P.R. Malhotra r/o 297, Dhaka Johad, Mukerjee Nagar, Delhi. After some time, police van came at the spot and she was taken to Lady Harding Hospital for treatment. Thereafter, FIR in the matter was State V/s Man Mohan Malhotra (" Convicted") Page 2 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 registered and accused was arrested in the matter. Thereafter, during investigation on 30.05.2000, other injured namely Om Narayan expired in Sushruti Trauma Centre and further investigation was handed over to ASI Diwan Singh who collected MLC and postmortem report of deceased Om Narayan. After necessary investigation, IO prepared the challan and filed the same before the Court through concerned SHO.
2. After completion of investigation, accused stood chargesheeted for offences punishable u/s 279/337/304A IPC.
3. After filing of the charge sheet in the case, accused was supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments, vide order dated 03.09.2001, Notice in terms of Section 251 CrPC for offences punishable u/s 279/337/304A IPC was served upon the accused, to which he pleaded not guilty and claimed trial.
4. In order to prove charges against accused, the prosecution examined fourteen witnesses and thereafter, PE in the matter was closed and statement of accused u/s 313 Cr.P.C. was recorded wherein he stated that he was falsely implicated in the present matter. Accused also led evidence in his defense and produced three witnesses in support of his defense.
5. I have heard arguments advanced at Bar by the Ld. APP for the State State V/s Man Mohan Malhotra (" Convicted") Page 3 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 and Sh. Ankit Tuli, Advocate for accused and perused the entire material on record.
6. Before adverting to adjudication upon the arguments advanced at Bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which is as under.
7. PW1 Sh. Smt. Prem Lata, the complainant herein, deposed that on 24.05.2000 she was going towards Sabzi Bazar, Manak Pura from the school where she was working at Peon, for purchasing some medicines and was standing at the bus stand. Besides her, one lady and one old person were also standing at the bus stand. In the meantime, one scooter bearing registration no. DL8SG3560 of red colour came from the side of Filmistan Cinema in a very high speed and in rash and negligent manner and hit all three of them due to which said another lady and old person sustained injuries who were rushed to the hospital. She remained at the spot and her statement Ex.PW1/A was recorded by police at the school. Police also rushed her to Lady Harding Hospital.
In her cross examination conducted on behalf of accused, she stated that her school hours were from 08:00 AM to 03:00 PM. She used to come to the school by the bus. There was railing on the centre verge of the road. There was a cut in the centre verge as the railing were broken and she had to cross the road from that railing. She was standing at the bus stand. She State V/s Man Mohan Malhotra (" Convicted") Page 4 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 had not seen the said scooter before the accident. After the impact, she fell down and become unconscious and regained consciousness immediately and saw the accused. She stated that when police arrived at the spot, the two wheeler driver was not present at the spot, however the said scooter was standing there. The old person was taken to hospital by the accused. She could not tell whether the scooter stopped immediately or at a distance. She did not remember whether she fell down on the patri or towards road side after the impact. She denied the suggestion that the impact was caused by a tempo and not by the scooter of the accused when they were trying to cross the road.
8. PW2 Sh. T.U. Siddiqui, Motor Vehicle Inspection Officer proved his report Ex.PW2/A in respect of one two wheeler scooter bearing registration no. DL8SG3560 at PS DBG Road on the request of IO.
This witness was not at all cross examined on behalf of accused despite being afforded opportunity in this regard.
9. PW3 HC Rakesh was the Incharge of PCR van which reached at the spot on receiving information of some accident in front of Fire Station. He deposed that one Prem Lata was found there who sustained injuries. She was removed to Lady Harding Hospital where DO Ram Kumar met them and injured was handed over to him.
This witness was not at all cross examined on behalf of accused despite State V/s Man Mohan Malhotra (" Convicted") Page 5 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 being afforded opportunity in this regard.
10. PW4 Sh. Lokesh Kumar was the witness of identification of dead body of deceased Om Narain who had expired due to the injuries received in a road accident. He deposed that deceased Om Narain was the uncle of his brother in law. His statement Ex.PW4/A was recorded in this regard.
This witness was not at all cross examined on behalf of accused despite being afforded opportunity in this regard.
11. PW5 Sh. Rajesh Sharma also identified the dead body of deceased Om Narain.
During cross examination conducted on behalf of accused, he stated that the accident did not take place in his presence and he had no personal knowledge about the accident.
12. PW6 W/HC Wahida Reddy was the Duty Officer on the relevant date and time who proved the recording of FIR in the matter. She exhibited her endorsement on the rukka as Ex.PW6/A and copy of FIR as Ex.PW6/B. This witness was not at all cross examined on behalf of accused despite being accorded opportunity in this regard.
13. PW7 Dr. B.K. Sharma, CMO, Subzi Mandi mortuary conducted postmortem on the body of deceased Om Narain. He proved his detailed State V/s Man Mohan Malhotra (" Convicted") Page 6 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 report Ex.PW7/A, in this regard.
This witness was not at all cross examined on behalf of accused despite being accorded opportunity in this regard.
14. PW8 Sh. Diwan Singh, retired SI, was the second IO in the matter who conducted necessary investigation in the matter. He also got conducted postmortem on the dead body of deceased Om Narain at Lok Nayak Hospital on application Ex.PW8/A. He also handed over the dead body to its relatives.
This witness was not at all cross examined on behalf of accused despite being accorded opportunity in this regard.
15. PW9 HC Prem Pal was the DD writer who recorded DD Nos. 22, 23 and 25. He proved the said DDs as Ex.PW9/A, B and C. This witness was not at all cross examined on behalf of accused despite being accorded opportunity in this regard.
16. PW10 ASI Sanjay Kumar, IO of the case, deposed that on 24.05.2000 on receipt of DD No. 22 with respect to an accident, he alongwith Constable Sunder Lal went to the spot and found one Scooter No. DL8SG 3560 in an accidental condition and came to know that injured was taken to some unknown hospital. In the meanwhile, he also received another DD NO. 23 through Constable Virender with respect to admission of Om Narain at Hindu Rao Hospital. He left Constable Sunder Lal at the spot for its protection and State V/s Man Mohan Malhotra (" Convicted") Page 7 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 proceeded towards Hindu Rao Hospital and collected MLC of injured. Doctor opined that injured was unfit for statement. He returned to the spot and found that one more injured was admitted to Lady Harding Hospital. He went to Lady Harding Hospital and collected the MLC of Smt. Prem Lata. He recorded her statement Ex. PW1A and prepared Ruqqa and returned to the spot and got the FIR registered through Constable Sunder Lal. He prepared site plan Ex. PW10/A at the instance of complainant. He seized the scooter vide memo Ex. PW10/B and the same was deposited in Malkhana. During investigation, he arrested the accused vide memo Ex. PW10/C and conducted his personal search vide memo Ex. PW1/D. He also seized the driving license of the accused and photocopy of RC and Insurance of the offending vehicle vide memos Ex. PW1/E and Ex. PW1/F respectively. He also got conducted the mechanical inspection of offending scooter. On 30.05.2000, Om Narain expired and the investigation of the present case was marked ASI Diwan Singh. During investigation, he recorded the statements of witnesses. This witness correctly identified the accused before the Court.
During cross examination conducted on behalf of accused, he stated that he had received information with respect to accident through DD NO. 22. He did not examine Surinder whose name has been mentioned in DD no. 23. He reached at the spot at around 12. 00 Noon. He further stated that Filminstan Cinema Hall was situated near the spot. He enquired from the spot with respect to the accident and came to know that the person who committed the accident, had taken the injured to hospital. He did not ask their names and State V/s Man Mohan Malhotra (" Convicted") Page 8 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 addresses. Offending scooter was parked at the spot when he reached there. There was minor damage on the offending scooter. No eye witness of the accident found at the spot. He denied the suggestion that all the written proceedings were conducted at police station or that accused was falsely implicated in the present case or that accused has not committed any accident and accused merely took the injured to hospital. He further denied the suggestion that accident had occurred from some other vehicle and not from the vehicle of accused and accused was only passerby.
17. PW11 Sh. Puran Mal, Medical Record Clerk, Lady Harding Medical College, Delhi appeared before the Court on behalf of concerned doctors who were not available in the said hospital. He exhibited the MLC No.13345 of patient Prem Lata as Ex.PW11/A. This witness was not at all cross examined on behalf of accused despite being accorded opportunity in this regard.
18. PW12 Sh. Rajesh Mehra, Record Clerk from Lady Harding Hospital also exhibited the MLC Ex.PW1/A of injured Prem Lata by identifying the signatures of examining doctor on the said MLC.
This witness was not at all cross examined on behalf of accused despite being accorded opportunity in this regard.
19. PW13 Sh. Sarad Kumar, Record Clerk from Hindu Rao Hospital State V/s Man Mohan Malhotra (" Convicted") Page 9 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 appeared before the Court on behalf of Dr. Rajneesh Singh and exhibited MLC No.6403/00 as Ex.PW13/A. This witness was not at all cross examined on behalf of accused despite being accorded opportunity in this regard.
20. PW14 Sh. B.S. Bhati, Medical Record Clerk, LNJP Hospital also appeared before the Court on behalf of Dr. Madhu Sudan Dey and exhibited MLC/postmortem report of deceased Sh. Om Narain as Ex.PW14/A. He also exhibited the carbon copy of death certificate of deceased Om Narain as Ex.PW14/B. This witness was not at all cross examined on behalf of accused despite being accorded opportunity in this regard.
21. Accused produced three witnesses in his defense.
22. DW1 Sh. Ramesh Chand deposed that on 24.05.2000 at about 10 :00 AM, he had reached alongwith accused Manmohan Malhotra to THC as per his request made one day prior to 24.05.2013 and remained with accused in THC till 02:30 PM on the said day. The Court which was attended by the accused was of Sh. R..K. Jain, the then Ld. ASJ, Delhi.
During cross examination conducted by Ld. APP for the State, he stated that he had come to THC on his scooter whereas accused had used his car in order to reach THC. He had started from his house at about 09:30 AM. He State V/s Man Mohan Malhotra (" Convicted") Page 10 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 had not gone to the house of the accused on way to Tis Hazari Court and had come to THC straight from his house and reached THC at about 10:00 AM. Accused met him in THC at 10:15 AM. He knew accused as the office of accused was situated near his office at Mukherjee Nagar. He had only official relation with accused and had no domestic interaction with him. He had accompanied accused to THC only on two/three dates. He was contractor in Delhi Jal Board. He had his office in his house only. The matter was called at about 11:45 AM. Mother and sister of the accused were also present in the THC on that day. He had not seen the accused in the car as accused had met him on the gate of THC on foot. He did not remember the other dates when he accompanied the accused to THC. He remembered said date as there was a Kirtan programme after three days of the said day. He had no document including any photograph to show that said Kirtan was held after three days. He denied the suggestion that he had stated the date only on tutoring by the accused in order to save him from punishment. He stated that the accused used his car due to the reason, there were threefour members of the family who had come to THC alongwith the accused and they must had used the car. He also denied the suggestion that he had been asked by the accused to give a false statement regarding his presence in THC on 24.05.2000 from 10:00 AM to 02:30 PM. He had no document to show that he had also come to the Court on 24.05.2000. Accused had not told him at any point of time prior to that day that he was falsely implicated in any accident case pertaining to date 24.05.2000. He denied the suggestion that accused had caused an accident at State V/s Man Mohan Malhotra (" Convicted") Page 11 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 about 10:45 AM near Filmistan while driving scooter no. DL8SG3560 in a rash and negligent manner or that he met him in THC after causing the said accident or that in order to save the accused from punishment, he had deposed falsely before the Court.
23. DW2 Sh. Sanjeet, LDC, Record Room (Sessions), THC, Delhi produced the summoned record of case FIR No.203/86 u/s 306/498A IPC with PS Ashok Vihar Ex.DW2/A. In the cross examination conducted by Ld. APP on behalf of the State, he stated that there were four accused persons who were facing trial in the abovesaid case, as per the record. He stated that as per order dated 05.05.2000, death verification of accused Pasas Ram was confirmed and proceedings against said accused were abated. He further stated that the time of taking up of the matter and the names of the accused persons who appeared before the Court on 24.05.2000, were not reflected in the order sheet for the said date.
24. DW3 accused Manmohan Malhora examined himself as a witness in his defense. He deposed that on 24.05.2000, he alongwith his mother, jija and younger sister had come to Tis Hazari Court by a car and attended the Court of Sh. R.K Jain the then Ld ASJ at about 10.00 A.M and got the next date of hearing at around 2.30 to 3.00 P.M. His Jija after leaving them in front of Tis Hazari Court, left from there at about 10.00 A.M. His scooter was in custody State V/s Man Mohan Malhotra (" Convicted") Page 12 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 of his Jija namely Sh. Surender Bajaj on the said day. His Jijaji was having an employee namely Sh. Rudra. The said employee had taken his scooter from the house of his Jijaji situated at House no. 499, First Floor, Parmanand Colony, and the accident had taken place while the said scooter was being driven by his employee namely Sh. Rudra. His scooter was given by his Jijaji without his consent and without even informing him. At the time of his arrest and throughout the investigation, he had repeatedly told police officials about the scooter being driven by Sh. Rudra but he was misguided by the police officials by telling that he will have to face only a minor traffic challan. On the date of incident, he was called at Police Station in the evening and was falsely implicated in the above said matter. On the date of incident, he remained in Tis Hazari Court from 10.00 A.M to about 2.30 to 3.00 P.M as despite many calls, his counsel was not available and only after lunch he was given next date of hearing. At every call before the Court, he was present throughout the day and was falsely implicated in the present matter as HC Sanjay Kumar (PW10) had misguided the complainant also to identify him as the culprit in place of Rudra so as to get good amount of compensation from him whereas Rudra was a mere poor employee. Due to the aforesaid reasons, he was falsely implicated in the present case.
In the cross examination conducted by Ld. APP on behalf of the State, he stated that he did not remember number of the car which was used by him to come to Tis Hazari Court. He did not remember make of the car but it was belonging to his Jijaji namely Sh. Surender Bajaj. Name of his father was State V/s Man Mohan Malhotra (" Convicted") Page 13 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 Late. Sh. Saran Dass Bajaj. He further stated that till date, he had not produced Sh. Surender Bajaj as defence witness. He further stated that he had not produced his younger sister namely Ms. Sunita Bajaj in his defence. Mr. Kalra was his counsel in the case FIR no. 203/86. He had given his scooter to Sh. Surender Bajaj at about 9.45 A.M on the said date. He had given the said scooter to him as they were taking his car to the Court. Sh. Surender Bajaj was having a shop in Pahar Ganj. He went to his shop at about 10.00 A.M after leaving them in the Tis Hazari Court and taking one TSR. His car remained parked in the Tis Hazari Court. He had driven the said car in the evening while returning to their house. Sh. Surender Bajaj had not driven his scooter on the date of accident. At about 3.304.00 P.M, he had come to his house and told him that one accident had taken place with his scooter and he will have to go to police station in order to take the said scooter back. He had told him that Rudra was driving the scooter at the time of accident. Sh. Surender Bajaj had accompanied him to police station. Rudra had not accompanied them. He and Sh. Surender Bajaj both had told the police about the driver of the scooter. Sh. Surender Bajaj had not given the scooter to Rudra in his presence but he only told him the said fact. He denied the fact that the scooter had remained in his custody on the date of accident and the accident had taken place while he was driving the same or that neither Sh. Surender Bajaj nor Rudra were having the said scooter. He further denied the suggestion that he had attended the Court only after the accident had taken place and had gone to PS DBG Road after his return from Tis Hazari Court. State V/s Man Mohan Malhotra (" Convicted") Page 14 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 He had not gone to SHO in order to tell him that he was not driving the scooter at the time of accident. He had not made any complaint to any senior officer of police or in the Court regarding his false implication in the present case. He denied the suggestion that he was naming Rudra as driver of the scooter on the date of accident due to the fact that he has already expired or that there was no occasion for passing over of the matter till 2.30 to 3.00 P.M due to the fact that as per the order sheet dated 24.5.00, his counsel had requested for adjournment on the ground that he was not available after lunch i.e after 2.00 P.M. He further denied the suggestion that he had made a false defence in order to save him from punishment. He further denied the suggestion that he was correctly identified by complainant in the Court. The complainant had filed a MACT Claim Petition before the Court and she had got the same from Sh. Surender Bajaj. Sh. Surender Bajaj was not a party in the claim petition. The insurance company had not paid the said claim as the scooter was not insured at the relevant time. He further denied the suggestion that there was no occasion for the complainant to falsely identify him as driver of the offending vehicle. He stated that there was no enmity between him and complainant or the IO ASI Sanjay Kumar. He further denied the suggestion that on 24.05.00 at about 10.45 P.M near Filmistan, he was driving scooter no. DL8SG 3560 in a rash and negligent manner and had hit the same to Smt. Prem Lata and Sh. Om Narain causing injury to Smt. Prem Lata and death of Sh. Om Narain or that he had called his Jijaji Sh. Surender Bajaj at the spot who helped him and got the injured admitted in the hospital and State V/s Man Mohan Malhotra (" Convicted") Page 15 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 asked him to attend the Court date.
16. This is all as far as prosecution evidence as well as defense evidence in the matter are concerned.
Arguments advanced and case law relied upon :
17. I have already heard Ld APP for the State and Ld counsel Sh Ankit Tuli Advocate on behalf of accused. I have also carefully gone through the material available on record.
18. It has been argued on behalf of State that prosecution has been able to prove its case against the accused beyond reasonable doubt. While referring to the testimonies of prosecution witnesses available on record more particularly the testimonies of PW1 Smt. Prem Lata, PW2 Sh T.U Siddqui, PW7 Dr. B.K Sharma and PW10 ASI ASI Sanjay Kumar(IO), Ld APP submitted that all the prosecution witnesses have fully supported the case of prosecution on all material points and have also duly corroborated each other. She further submitted that accused could not demolish the case of prosecution during cross examination of its witnesses. Ld APP further contended that accused has failed to prove his defence as raised by him during his statement U/s 313 Cr.PC and the testimonies of defence witnesses examined by accused, are not worth reliable. Hence, accused should be convicted in the present case.
19. Per contra, Ld defence counsel argued that there are several contradictions appearing in the testimonies of prosecution witnesses State V/s Man Mohan Malhotra (" Convicted") Page 16 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 examined in this case which create sufficient doubt in the prosecution story due to which accused is entitled to benefit of doubt. He further submitted that the prosecution has failed to prove the identity of accused to be the driver of offending vehicle. In this regard, Ld defence counsel referred to the defence raised by accused who took the plea of Alibi by claiming that he was present before Ld Sessions Court from 10.00 A.M till 2.30/3.00 P.M in Tis Hazari Court premises on the date of accident. Ld defence counsel also referred to the testimonies of defence witnesses examined by the accused. He further submitted that there were three accused who were supposed to appear before Ld Sessions Court on 24.5.00 which itself creates suspicion in the prosecution story that accused would have been driving two wheeler scooter at the alleged time and place on that day. Ld counsel argued that accused has been falsely implicated in this case at the instance of PW1 as she wanted to extort money from him who belongs to financially sound family. Ld counsel further submitted that the accident in question, had been actually caused by one Sh Rudra who was an employee of Sh. Surender Bajaj(Brother in law of accused) and since said poor fellow was not in a position to pay sufficient amount of compensation to the complainant, she got the accused falsely implicated. Another bone of contention raised by Ld defence counsel is that no independent public witness was joined during the entire proceedings by the investigating officer despite the fact that place of occurrence is shown to be congested and habited place where public persons would have been definitely available even at the time of alleged occurrence. On the strength of said State V/s Man Mohan Malhotra (" Convicted") Page 17 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 argument, Ld defence counsel submitted that non joining of independent public witness creates sufficient doubt on the entire case of prosecution and thus, accused deserves to be acquitted in the present case.
20. In order to bring home the guilt of accused for the offences charged against him, prosecution was required to prove the following points:
1. That it was the accused who was driving the offending two wheeler scooter at the time of accident;
2. That the accused was driving the offending two wheeler scooter in rash and/or negligent manner;
3. That the accused had caused accident in question while driving the offending vehicle in rash and negligent manner; and
4. That due to accident, death of pedestrian namely Sh. Om Narain was caused and another person namely Ms. Prem Lata sustained simple injury.
21. It is quite evident from the above discussion that the factum regarding accident having taken place at the alleged time, date and place, is not disputed by the accused. Likewise, it also remained an undisputed fact that due to accident in question, death of one public person namely Sh Om Narain took place and another public person namely Ms. Prem Lata(PW1) had sustained simple injuries.
22. The accused has, however, disputed the allegation that he was driving the offending two wheeler scooter at the time of accident in question and also State V/s Man Mohan Malhotra (" Convicted") Page 18 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 that he was driving the said vehicle in rash and/ or negligent manner and also that he had caused the accident in question. In this backdrop, it has to be seen as to whether prosecution has been able to prove the said disputed facts during the course of trial or not.
23. As already discussed above, PW3 namely HC Rakesh, PW4 Sh Lokesh Kumar, PW5 namely Sh Rajesh Sharma, PW6 namely WHC Wahida, PW8 namely Retd. SI Diwan Singh, PW9 namely HC Prem Pal are formal witnesses who either identified the dead body of deceased Om Narain or removed the injured to the hospital or recorded the intimation regarding accident in Rojnamcha or recorded the FIR in the present matter.
24. PW1 namely Smt. Prem Lata is the star witness of the accident in question. As per the case of prosecution, said witness was present at the time of accident and also sustained injuries due to the accident. The said witness has fully supported the case of prosecution by testifying that on the given date, time and place, it was the accused who had been driving the two wheeler scooter at very fast speed and had also hit against them while they were standing at the bus stand. However, the accused could not impeach her testimony despite the fact that PW1 went through the ordeal of cross examination from the side of accused.
25. There is some discrepancy in the testimony of PW1 visaavis her State V/s Man Mohan Malhotra (" Convicted") Page 19 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 statement Ex PW1/A recorded by the police. There were two persons including PW1, who were hit by the offending vehicle and had sustained injuries as per police statement Ex PW1/A but PW1 claimed during trial that there were three persons consisting of herself, one lady and one old person, who were so hit by the offending two wheeler scooter. However, the said discrepancy, having been considered in the light of entire facts and circumstances appearing on record, is not of such magnitude which may go to the root of the prosecution case or such as to throw away the entire case of prosecution on this ground. Likewise, the relevant portion of the testimony of PW1 regarding the place where her statement Ex PW1/A was recorded by the police, is also a minor contradiction which is not sufficient in itself to discard the testimony of said witness in toto.
26. In the case reported at JT 1999 (9) SC 43 titled as " State of H.P. Vs. Lekhraj and another", it was observed by the Hon'ble Supreme Court of India as under: "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 observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like".
It was further observed in the said judgment as under: "The traditional dogmatic hypertechnical approach has to be State V/s Man Mohan Malhotra (" Convicted") Page 20 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 replaced by rational, realistic and genuine approach for administering justice in a criminal trial"
27. It has been held by Hon'ble Apex Court in the matter titled as " State of Rajasthan Vs. Smt. Kalki & Anr." reported at (1981) 2 SCC 752, in the depositions of witnesses there are always normal discrepancies however honest and truthful the witnesses may be and these discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.
28. It is relevant to note that the accused himself has given suggestion during cross examination of the complainant(PW1) that the impact was caused by a tempo and not by the scooter of the accused which gives rise to an inference that the accused was present at the spot at the time of occurrence without which, it would not have been possible for him to give such a suggestion to the witness. Same is further strengthened from the fact that accused himself gave suggestion during cross examination of ASI IO namely Sanjay Kumar(PW10) that he had merely taken the injured to the hospital and also that the accident had been caused by some other vehicle and accused was only passerby. Said two suggestions given to the IO, on behalf of accused, are directly in contradiction to the defence raised by accused during his statement U/s 313 Cr.PC and in the form of his defence witnesses wherein State V/s Man Mohan Malhotra (" Convicted") Page 21 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 he has taken the plea of Alibi by pleading before the Court that he was actually present before Ld Sessions Court from 10.30 A.M till 2.30 P.M on the date of occurrence.
29. Furthermore, it is nowhere the case of accused that he was previously known to Smt. Prem Lata(PW1) or the police witnesses examined in this case, prior to incident in question. It is also nowhere his defence throughout the trial that either PW1 or the police witnesses more particularly IO(PW10) were having any ill will or personal grudge against him due to which they deposed against him. There is nothing on record to suggest untrustworthiness of the witnesses including police officials. Although the accused in his statement claimed that he is innocent but the defence taken by the accused does not inspire any confidence whatsoever. It would be anybody's guess as to why police officials would falsely implicate the accused in this case. In the absence of this, Court does not find any reason to throw out the testimonies of the prosecution witnesses.
30. Even otherwise, it is well settled law that the onus to prove plea of Alibi, entirely rests upon the accused who has to prove the same by leading cogent evidence. Such burden is heavy and has to be discharged by defence by leading sufficient and credible evidence on record so that it may be accepted by the Court.
State V/s Man Mohan Malhotra (" Convicted") Page 22 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013
31. No doubt, the accused has examined DW2 who has proved the relevant proceedings dt. 24.5.00 of Ld Sessions Court pertaining to case FIR no. 203/86 U/s 306/498A IPC with PS Ashok Vihar showing therein that there were three accused including Manmohan Malhotra(accused herein) who had appeared before Ld Sessions Court on 24.5.00. However, the falsity of defence raised by accused is highlighted from the fact that his claim that he remained present in Ld Sessions Court from 10.30 A.M till 2.30 /3.00 P.M on that day, stands contradicted by the certified copy of proceedings dt. 24.5.00 Ex PW2/A which shows that matter had been adjourned by Ld Sessions Court before lunch time as it is mentioned in the proceedings that on the request of counsel of accused on the ground that he is not available after lunch, proceedings were being adjourned to next date.
32. Although, accused in his own statement as DW3 claimed that matter was called by Ld Sessions Court several times between 10.00 A.M to 2.30/3.00 P.M on that day and it was only after lunch that he was given next date of hearing but proceedings Ex DW2/A placed on record by accused himself, goes to show that matter was taken up by Ld Sessions Court only once on that day and that too before lunch time. This fact is further apparent from the admission made by DW1 namely Sh Ramesh Chand in his cross examination that matter was called before Ld Sessions Court at about 11.45 A.M on that day.
State V/s Man Mohan Malhotra (" Convicted") Page 23 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013
33. In view of the discussion made herein before, Court is of the view that accused has failed to prove his plea of Alibi as he could not lead cogent and convincing evidence on record in this regard.
34. There is no force in the arguments raised on behalf of accused that there were three persons who were supposed to attend the proceedings before Ld Sessions Court in Tis Hazari Court and therefore, Court should presume that accused would not have been driving two wheeler scooter at the given date, time and place of occurrence. There is nothing on record which may show or even suggest that all the three accused had been residing at the same address on that day or that all of three had gone together to Tis Hazari Court for attending the said case. Rather, there is contradiction appearing in the testimonies of DW1 and DW3. DW1 Sh. Ramesh Chand who had nothing to do with the said other criminal proceedings, claimed that he had reached alongwith accused to Tis Hazari Court on 24.5.00 i.e the date of occurrence. During his cross examination, the same witness claimed that he had gone to Tis Hazari Court on his scooter whereas accused had used his car in order to reach Tis Hazari Court. The said witness nowhere claimed in his entire deposition made before the Court that other two accused namely Smt. Shanti and Smt. Sunita had also accompanied accused in his car. Rather, DW1 admitted during his further cross examination that he did not see the accused using any car as he (accused) had met him(DW1) on the gate of Tis Hazari Court on foot. Same shows that DW1 disclosed the factum regarding using of State V/s Man Mohan Malhotra (" Convicted") Page 24 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 car by accused, either on the basis of hearsay or at the instance of accused. As contrary thereto, accused himself as DW3, testified that he alongwith his mother, younger sister and brother in law had gone to Tis Hazari Court by a car. His brother in law had left them in front of Tis Hazari Court and left to his office at about 10.00 A.M. His two wheeler scooter(offending vehicle) was in custody of his brother in law and one employee of his brother in law namely Sh Rudra had taken the scooter from the house of his brother in law. He repeatedly told to police official about this fact but he was misguided that he will have to face only minor traffic challan but he got falsely implicated in the present case in the evening of the date of incident when he was called in the police station. However, the said part of the testimony of accused(DW3) does not inspire confidence and cannot be believed as he had been facing trial in the present case since the year 2000 but he has not shown to have file any complaint before any senior police officer against IO of this case for being falsely implicated in the case or informing them about the fact that offending scooter was being driven by some other person. Moreover, the accused did not even put the said defence during cross examination of prosecution witnesses throughout the trial and he has come out with this story only for the first time during defence evidence. What is more interesting to note is that accused also failed to produce his mother or younger sister or even brother in law during defence evidence in order to support the above stated defence. This is more so when brother in law of accused had been involved in the entire affairs beginning from taking away scooter of accused to his house and giving the State V/s Man Mohan Malhotra (" Convicted") Page 25 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 same too his employee Sh Rudra till dropping the accused and his family members at Tis Hazari Court on the day of occurrence and after leaving his car at Tis Hazari Court, going away to his office in TSR and taking accused to the PS for taking back his two wheeler scooter etc. etc. It is also quite unbelievable that brother in law of accused left his car at parking Tis Hazari Court and himself went to his office at Pahar Ganj in TSR, as stated by accused during his cross examination.
35. There is also no force in the contention raised on behalf of accused that he has been got falsely implicated in the present case merely in order to get more and more compensation from him. This is more so when accused as DW3, has himself admitted during cross examination that there is no enmity between him and the complainant or IO. Rather, the explanation furnished by prosecution that after causing the accident at the given time and place, accused fled away from the spot and went to Tis Hazari Court in order to attend the proceedings and after attending the Court matter, he went to the police station in the evening where he was formally arrested in the present case. The accident is shown to have taken place at about 10.45 A.M in the morning whereas the proceedings in the criminal matter had taken place only at about 11.45 A.M as stated by DW1.
36. All the prosecution witnesses examined in this case, have deposed on the lines of prosecution story and have corroborated the version of each other. State V/s Man Mohan Malhotra (" Convicted") Page 26 of 27 FIR NO. 108/00; PS DBG Road; U/s 279/337/304A IPC DOD:30.08.2013 Not only this, the report Ex PW2/A regarding mechanical inspection of offending two wheeler scooter of accused herein, also corroborates the prosecution story as its front mudguard was found pressed besides some other damage as mentioned in the said report at the time of its inspection on 25.5.00 i.e immediately on the next day after the accident in question. Similarly, the postmortem report Ex. PW 7/A shows that the cause of death of deceased Sh Om Narain was due to crenio cerebral injuries consequent upon blunt force impact to the head which was possible in road vehicular accident. The time of receipt of injuries as mentioned therein, also corroborates the prosecution story.
37. In view of the aforesaid discussion, Court is of the view that prosecution has been able to prove that accused was driving the offending two wheeler scooter in rash and negligent manner and while driving the said vehicle in aforesaid manner, he had hit it against Sh. Om Narain and Smt. Prem Lata(PW1) due to which Sh. Om Narain died on account of said injuries whereas Smt. Prem Lata sustained simple injuries on her person. Consequently, accused namely Manmohan Malhotra stands convicted in respect of offences U/s 279/337/304A IPC.
Announced in the open Court (Vidya Prakash)
on 30.08.2013 Chief Metropolitan Magistrate:
Central District:Tis Hazari Courts
Delhi
State V/s Man Mohan Malhotra (" Convicted") Page 27 of 27