Delhi District Court
State vs . Mool Chand on 20 March, 2013
FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 IN THE COURT OF VIDYA PRAKASH: CHIEF METROPOLITAN MAGISTRATE(CENTRAL DISTRICT) DELHI FIR No.: 151/01 PS: DBG Road U/s 279/304A IPC State Vs. Mool Chand Unique ID No.: 02401R1371082008 J U D G M E N T:
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(a) S.No. of the case : 549/2
(b) Name of complainant : Sanjay Kumar, No.8637, DHG, Traffic Zone, Karol Bagh, PS Prasad Nagar, Delhi.
(c) Date of commission of offence : 30.06.2001
(d) Name of the accused : Mool Chand @ Shyam Sunder
S/o Sh. Naresh Chand
R/o H. No.54/49, Gali No.2,
Sewa Sadan Block, Mandawali,
Delhi
(e) Offence complained of : U/s 279/304A IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 19.03.2013
(h) Final Order : Convicted
(i) Date of such order : 20.03.2013
State V/s Mool Chand (" Convicted ") Page 1 of 19
FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. The facts of the case in brief are that on 30.06.2001, upon receipt of DD no.6A, SI Arjun Lal alongwith Constable Devender reached the spot i.e. at DBG road near bus stop, Ajmal Khan Road, where one bus bearing registration no. DLIPA3793 as well as one scooter bearing registration no.DAA1873 were found in accidental condition. One DHG traffic Constable namely Sanjay was also found at the spot. Injured was also present at the spot in unconscious condition. Constable Sanjay produced accused Mool Chand before SI Arjun Lal (IO) at the spot. Thereafter, injured was sent to JPN Hospital through PCR. IO went to the said hospital leaving behind Constable Devender to guard the spot where he came to know that injured was declared dead. Accordingly, he collected MLC of the deceased. IO returned back to the spot where he recorded statement of traffic Constable Sanjay, upon which rukka in the matter was prepared and subsequently FIR in the matter was registered. During interrogation, it was revealed that the said offending bus was being driven by one Mool Chand (hereinafter referred to as 'accused'). After completion of necessary formalities, chargesheet in the matter was filed before the Court.
2. After completion of investigation, accused stood chargesheeted for offences punishable u/s 279/304A IPC.
3. After filing of the charge sheet in the case, accused was supplied the State V/s Mool Chand (" Convicted ") Page 2 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 documents in compliance of Section 207 Cr.P.C and after hearing arguments, vide order dated 13.01.2003, Notice in terms of Section 251 CrPC for offences punishable u/s 279/304A IPC was served upon the accused, to which he pleaded not guilty and claimed trial.
4. In order to prove the charges against accused, the prosecution examined eleven 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.
5. I have heard arguments advanced at Bar by the Ld. Substitute APP for the State and Sh. B.L Madhukar, 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 evidences recorded in the matter, which is as under.
7. PW1 Constable Sanjay Kumar was the eye witness of the incident as he was on duty at the spot as traffic constable. He deposed that on 30.06.2001 at about 10:00/10:30 AM, he saw that one scooter was crossing the road from green signal when one bus bearing registration no. DLIPA3793 came from New Delhi Railway Station side and jumped the red light signal and hit the State V/s Mool Chand (" Convicted ") Page 3 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 said scooter from behind as a result the said scooter fell on the road and the rider sustained injuries. He immediately informed PCR. PCR van reached at the spot and the injured was taken to the hospital. The driver of the offending bus was apprehended at the spot. The injured was declared brought dead in the hospital. He returned back to the spot where IO SI Arjun Lal recorded his statement. IO prepared site plan Ex.PW1/B at his instance, seized the offending bus as well as driving license of accused vide memos Ex.PW1/C & D respectively. Accused was arrested vide memo Ex.PW1/E. Personal search of accused was conducted vide memo Ex.PW1/F. During his cross examination, he stated that the driver of offending bus himself went to the police station and not arrested by the police at the spot. He came to know at about 11:00 AM that driver had went to the police station himself. He went to the hospital at about 10:20 AM alongwith PCR van. He immediately left the hospital after leaving injured there. He returned back to the spot within one hour where IO and two Constables met him. He did not furnish the number of the said PCR van. He could not tell the colour of the scooter involved in the accident. He denied the suggestion that he was not present at the spot. He stated that his statement and site plan were prepared by the IO at the spot. However, he again stated that his statement was recorded by the IO at police station at 11:00 AM. He did not tell the time of preparation of site plan. He denied the suggestion that he was made a witness by the IO.
8. PW2 Constable Devender deposed that on 30.06.2001 on receipt of DD State V/s Mool Chand (" Convicted ") Page 4 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 no.6A, he accompanied the IO SI Arjun Lal to the spot where they found one bus bearing registration no. DLIPA393 and one scooter bearing registration no. DAA1873 in accidental condition. One injured was also found there. The name of the injured was revealed from his Icard as Sh. Mahender Pal. One DHG Constable namely Sanjay was also found there. Injured was sent to JPN hospital through PCR van. IO recorded statement of Constable Sanjay and on the basis of which prepared rukka and got the FIR in the matter registered through him. He returned back to the spot where IO conducted necessary proceedings. This witness correctly identified the accused as well as case property before the Court.
During his cross examination conducted on behalf of accused, he stated that he reached at the spot at around 10:25 AM where injured was present there. He did not tell the colour of scooter of the injured. He remained at the spot till 01:00 PM thereafter he left for DBG police station and after registration of FIR returned back to the spot at around 02:00 PM where IO SI Arjun Lal and Constable Sanjay Kumar were present there. He denied the suggestion that accused was falsely implicated in the present case.
9. PW3 T.U. Siddiqui, Motor Vehicle Inspector inspected the vehicles in question and proved his reports as Ex.PW3/A & B. In his cross examination, he told that there was an accident. There was minor damage on the stapney cover and side body panel. There was no blood stain on any of the vehicle on any of the side. He admitted the State V/s Mool Chand (" Convicted ") Page 5 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 suggestion that damage was not so severe that it can be said that it was caused by a heavy speed vehicle and also that the damage on the side of the body panel might be caused by a slip of the scooter.
10. PW4 Constable Govind Ram was the witness who clicked photographs of the spot. He exhibited the photographs of the spot as Ex.PW4/A1 to Ex.PW4/A6.
This witness was not at all cross examined by the defense despite being afforded opportunity for the same.
11. PW5 SI Arjun Lal, IO of the case, deposed on the similar lines as of PW2 Constable Devender as he was associated with Ct. Devender from police station DBG Road to the spot and conducted all the proceedings at the spot. However, he further deposed that he got conducted the postmortem of the deceased and after due identification, dead body was handed over to relative of deceased vide Ex.PW2/A. He got conducted mechanical inspection of both the vehicles involved in the accident. He sent notice u/s 133 M.V. Act Ex.PW5/C to the registered owner of offending bus. In response thereto, registered owner replied that at the time of accident accused Mool Chand @ Shyam was driving the said bus. During investigation, he recorded statements of witnesses and filed the challan before the Court.
This witness again appeared in the witness box and correctly identified the scooter from the photographs. The identity of offending bus as State V/s Mool Chand (" Convicted ") Page 6 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 well as of accused was not disputed at that time by the defense.
In his cross examination, he stated that many public persons were present at the spot when he reached there in order to conduct inquiry on the DD. He recorded statements of two public persons and one DHG namely Constable Sanjay at the spot. He remained at the spot till 1.00 P.M. He remained at the spot for about three hours on first occasion. The injured was found at the spot. PCR had taken the injured to hospital in his presence after about 15 minutes of his reaching. Constable Sanjay had already informed the PCR about the accident prior to his reaching the spot and this fact was told by Constable Sanjay to him. No constable from police station DBG Road had accompanied injured in the PCR. PCR had removed the injured from the spot at about 10.30 A.M. He had left the spot to the hospital after about 3045 minutes of leaving PCR Van at the spot. He volunteered that from the hospital, he had came back to the spot in order to complete the proceedings. Constable Devender had accompanied him to the hospital. No other police official from police station DBG Road had come to the spot in his presence. He remained at the hospital for about 30 minutes. He had not recorded any statement U/s 161 Cr.PC in the hospital. He had prepared the site plan at the spot prior to going to the hospital. He remained at the spot for about two hours after return from the hospital. When he came back to the spot from the hospital, Constable Sanjay and two public witnesses whose statements were recorded by him, were present there. Constable Devender had accompanied him to the police station from the spot. He did not remember the colour of State V/s Mool Chand (" Convicted ") Page 7 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 scooter of injured. He had not visited the spot after the day of incident, in connection with the investigation of this case. Driver of the bus had driven it to the police station and the scooter was pushed by Constable Devender to the police station for depositing the said vehicles in the Malkhana. Mechanical inspections of the vehicles were got conducted in the Malkhana. He denied the suggestion that public witnesses namely Ali Ahmed and Mohd Liyakat had not witnessed the incident or that they have been introduced subsequently in order to support the prosecution story.
12. PW6 Sh. Ramesh Kumar was the supervisor of the offending bus. He deposed that in June, 2001 accused Mool Chand made a telephone call to him and informed about the accident caused by him. He gave reply Ex.PW6/A to the notice u/s 133 M.V. Act. He correctly identified the accused before the Court.
This witness was not cross examined by the defense despite being afforded opportunity.
13. PW7 W/ASI Veen Devi was the Duty Officer who recorded the FIR in the matter. She exhibited the FIR as Ex.PW7/A. This witness was not cross examined by the defense despite being afforded opportunity to that extent.
14. PW8 Sh. Manish Kumar was the son of the deceased Mahender Pal. State V/s Mool Chand (" Convicted ") Page 8 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 He deposed that after receipt of information about the accident, he went to JPN hospital where he came to know about the death of his father. He identified the dead body of his father vide memo Ex.PW8/A. After postmortem, dead body was handed over to him vide memo Ex.PW2/A. The scooter involved in the accident was got released by him on superdari. He correctly identified the scooter before the Court through its photographs.
This witness was not cross examined by the defense despite being afforded opportunity to that extent.
15. PW9 Sh. Ishwar Singh, Record Clerk from Maulana Azad Medical College, Delhi exhibited the postmortem report of deceased as Ex.PW9/A as the preparing doctor having left the service of the said hospital and his present whereabouts could not be traced out.
This witness was not cross examined by the defense despite being afforded opportunity.
16. PW10 Dr. Mahesh Kumar Lal, Medical Specialist Safdarjung hospital who prepared the MLC of deceased Mahender Pal exhibited the said MLC as Ex.PW10/A. This witness was not cross examined by the defense despite being afforded opportunity to that extent.
17. PW11 Sh. Hemant Kumar was the owner of the offending bus. He State V/s Mool Chand (" Convicted ") Page 9 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 stated that he took the said bus on superdari vide memo Ex.PW11/A. He correctly identified the said bus through its photographs before the Court.
This witness was not cross examined by the defense despite being afforded opportunity to that extent.
18. This is all as far as prosecution evidence in the matter is concerned.
Arguments advanced & Case law cited:
19. While opening the arguments, Ld Substitute APP for the State has submitted that prosecution has proved its case against the accused beyond reasonable doubt. In this regard, Ld Substitute APP referred to the testimonies of prosecution witnesses examined during trial. Ld Substitute APPsubmitted that PW1 namely Ct. Sanjay Kumar is the star witness who had witnessed the accident in question. She argued that said witness has supported the case of prosecution on all material points and the defence could not impeach his testimony. Ld Substitute APP further argued that in view of testimony of PW1 coupled with the other prosecution witnesses and the documents proved on record, prosecution has established the guilt of accused beyond shadow of doubt.
20. Per contra, Ld defence counsel has argued that prosecution miserably failed to prove its case against the accused beyond reasonable doubt. He State V/s Mool Chand (" Convicted ") Page 10 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 contended that prosecution cited two public witnesses namely Mohd Liyakat and Ali Ahmed and one police official namely HC Prithvi Singh of PCR Van as per the list of witnesses filed with the charge sheet by claiming that both the said public persons had seen the accident in question and HC Prithvi Singh being Incharge of PCR Van, had removed the injured to the hospital but prosecution failed to examine all the said three witnesses during trial. Ld defence counsel argued that the only eye witness examined by prosecution i.e PW1 is noneelse but police official who has been introduced in this case to support the prosecution story. He further argued that the testimony of PW1 should not be believed and benefit of doubt should be given to the accused.
21. 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 bus at the time of accident;
2. that the accused was driving the offending bus in rash and 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.
22. As already discussed above, the only eye witness to the accident in question examined in this case is Ct. Sanjay Kumar(PW1) who was on State V/s Mool Chand (" Convicted ") Page 11 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 duty at the place of occurrence being posted as traffic constable in the concerned Traffic Circle. He categorically testified that one bus bearing registration no. DL1PA 3793 jumped red right signal while coming from the side of New Delhi Railway Station at fast speed and hit one two wheeler from its back side as a result of which driver of the scooter fell on the road and sustained injuries and ultimately was declared brought dead in the hospital. He identified the accused herein to be the driver of said offending bus which had caused the accident in question. During cross examination, defence could not impeach the testimony of said witness and could not elicit anything contrary to the case of prosecution which may create any doubt in his testimony. Although, it has been contended on behalf of accused that the said witness could not disclose the number of PCR Van which had taken the injured to the hospital and also could not tell the registration number of the two wheeler scooter of deceased but this fact is hardly material for the purpose of throwing away the case of prosecution. It cannot be over looked that attention of the person in whose presence road accident is caused, would firstly go towards the registration number of the offending vehicle which has caused such accident and his concern would be to save the injured by shifting him to the hospital so that the injured may get the necessary treatment in order to save his life. PW1 has been consistent through out the cross examination and claimed that he had gone to the hospital alongwith PCR Van and he had called the PCR to the spot. Not only this, he also supported the State V/s Mool Chand (" Convicted ") Page 12 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 prosecution case by stating that his statement Ex PW1/A as well as site plan were prepared by the IO at the spot.
23. Accused has given suggestion during the cross examination of aforesaid witness that nothing happened in his presence and he has been made witness by IO of this case. However, he claimed during his statement U/s 313 Cr.PC that accident did not take place from his vehicle as his bus was stationed at the bus stand itself and he had no knowledge about the accident in question. No such suggestion was given by accused during cross examination of prosecution witnesses more particularly during cross examination of PW1 namely Ct. Sanjay Kumar. The accused also failed to lead any defence evidence in this regard. In case, the accused had taken the stand that PW1 was not present at the spot then he could have summoned the relevant record maintained in the office of traffic police in order to show the place of posting of said witness on the day of accident. The conduct of accused in not giving suggestion to the said witness that he was not posted at traffic circle of Prasad Nagar coupled with the aforesaid discussion leaves no scope of doubt about the presence of said witness at the place of occurrence on the given time and date of accident.
24. PW6 namely Sh. Ramesh categorically deposed during trial that accused herein was the driver of offending bus no. DL1PA 3793 at the State V/s Mool Chand (" Convicted ") Page 13 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 time of accident. He also testified that accused had made a telephone call to him and informed that accident had taken place with the said vehicle. Not only this, he also claimed to have furnished reply Ex PW6/A to the notice U/s 133 M.V Act wherein he has reiterated this fact that accused namely Mool Chand was driving the offending vehicle at the time of accident in question.
25. The said witness has not been cross examined by accused despite grant of opportunity. The testimony of this witness coupled with the circumstances in which accident is shown to have taken place and also the fact that offending bus number DL1PA 3793 as well as the two wheeler scooter of injured are shown to have been seized at the spot when lying in accidental condition, clearly establish on record that it was the accused and accused alone who was driving the offending bus at the time of accident in question.
26. There is no substance in the argument raised on behalf of accused that damage appearing on two wheeler scooter as per report Ex PW3/A was not so severe and statement of PW3 that said damage may have been caused by a slip of the scooter, creates reasonable doubt that scooter may have fallen down due to some other reason and therefore, benefit of doubt should be given to the accused. As per the case of prosecution, accident was caused by the offending bus while hitting the two wheeler scooter State V/s Mool Chand (" Convicted ") Page 14 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 from its back side. It has come on record that offending bus was being driven at very high speed and had jumped the red light signal before hitting two wheeler scooter due to which scooter had fallen down and its driver sustained severe injuries which resulted into his death. The postmortem report Ex PW9/A corroborates the prosecution story as well as the ocular evidence on record. It is mentioned in the said report that death was caused due to hemorrhage and shock consequent upon blunt force impact to the chest, left side pelvis and left side lavehins and such injuries were possible by vehicular accident.
27. Court also does not find any merit in the argument raised by Ld defence counsel that there is no evidence on record that offending bus was being driven in rash and /or negligent manner. Firstly, no question whatsoever has been asked in the cross examination of PW1 by the accused on the point of rash and negligent driving of the offending bus at the time of accident in question. PW1 has categorically deposed during chief examination that offending bus was being driven at fast speed and the said bus had hit the scooterist from behind after jumping the red light. Said portion of his testimony also remained uncrossed and thus leads to the conclusion that offending bus was being driven in rash and negligent manner and had caused the accident while being driven in such manner. Secondly, the circumstances in which accident is shown to have been caused, have already been discussed herein before. The offending bus had State V/s Mool Chand (" Convicted ") Page 15 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 jumped the red light traffic signal while coming from the side of New Delhi Railway Station and thereafter, it had hit the two wheeler scooter from its back side due to which scooter fell down and its driver sustained injuries. In this backdrop, rashness and negligence stands established on record. While taking this view, I am also fortified by the judgment in the matter titled as "Paras Nath Vs. State of Delhi" reported at 2003(3) JCC 1500(Delhi) wherein facts were also quite similar that the appellant had hit the scooter from behind and considering the entire facts and circumstances of the case, our own High Court held that negligence was clearly attributed to the appellant. Hon'ble High Court further held that rashness or negligence can be determined from the manner in which accident took place and also that it was not the case of appellant that scooterist had applied brake all of a sudden and therefore, he was taken unaware which led his truck hitting the scooter from behind. The said judgment is squarely applicable to the facts and circumstances of the case in hand as it is also nowhere the defence of accused in this case that the scooterist had suddenly applied the brake due to which he had no occasion to stop the offending bus or he had no opportunity to avoid hitting the two wheeler scooter from its back side.
28. There is no substance in the argument raised by Ld defence counsel for throwing away the entire case of prosecution on account of minor contradictions appearing in the testimonies of prosecution witnesses State V/s Mool Chand (" Convicted ") Page 16 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 examined during trial. In this regard, Ld defence counsel had referred to the relevant portion of the statement of PW1 namely Ct. Sanjay Kumar whereby he claimed that driver of offending vehicle himself had gone to police station and was not arrested by the police from the spot. He also claimed that he had gone to the hospital at about 10.20 A.M alongwith the PCR. However, PW5 namely Retd. ASI Arjun Lal(IO) testified that Ct. Sanjay(PW1) had produced the accused before him as driver of the offending bus when he(PW5) reached at the spot. He also deposed that accused was arrested by him at the spot vide memo Ex PW1/E. Likewise, Ld defence counsel also referred to the relevant portion of the statement of PW5(IO) whereby he claimed that he had gone to JPN Hospital after leaving Ct. Devender(PW2) at the spot whereas PW2 claimed that he had accompanied IO to JPN Hospital. Another contradiction as pointed out by Ld defence counsel was on the aspect of time of preparation of site plan in as much as PW5(IO) claimed that he had prepared the site plan at the spot prior to going to the hospital whereas it has been deposed by PW1 during cross examination that site plan was prepared by PW5 subsequently after his returning back from the hospital. There is no contradiction as such on the aspect of preparation of site plan as it has nowhere been stated by PW1 that IO had prepared the site plan after returning back from the hospital. Rather, the said witness denied knowledge about the time when site plan was prepared by the IO. Even otherwise, the aforesaid contradictions as pointed out on behalf of accused do not constitute State V/s Mool Chand (" Convicted ") Page 17 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013 material contradictions which may go to the root of the prosecution story or which are sufficient in themselves in order to create reasonable doubt in the case of prosecution thereby entitling the accused benefit of doubt.
Furthermore in the case reported as "JT 1999 (9) SC 43 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 replaced by rational, realistic and genuine approach for administering justice in a criminal trial"
29. It is nowhere the case of the accused that the witnesses including PW1 had any previous enmity with him and therefore, there is no reason as to why the said witnesses would depose against him. No suggestion has been given during cross examination of PW6 i.e the supervisor of the offending bus in question that accused was not driving the offending bus at the time of accident in question.
State V/s Mool Chand (" Convicted ") Page 18 of 19 FIR NO. 151/01; PS DBG Road; U/s 279/304A IPC DOD: 20.03.2013
30. PW3 namely Sh T.U Siddqui had conducted mechanical inspection of both the aforesaid vehicles at the request of IO. He has proved his reports in this regard as Ex PW3/A and PW3/B. As per mechanical inspection report Ex PW3/B in respect of bus, its stands proved on record that the offending bus was found to be having fresh damage and its brake as well as horn were working in proper condition. The said report clearly rules out the possibility of accident being caused due to failure of brake and duly corroborates the prosecution story and statements of PW1, PW5 and PW6 recorded before the Court.
31. Thus, Court is of the view that prosecution has been able to conclusively prove that the offending vehicle was being driven by the accused herein in rash and negligent manner and also that he had hit the bus behind the two wheeler scooter which resulted into the death of Mahender Pal.
32. In view of the aforesaid discussion, I hereby convict accused Mool Chand for the offences U/s 279/304 A IPC.
Announced in the open court (Vidya Prakash)
on 20.03.2013 Chief Metropolitan Magistrate:
(Central)Delhi
State V/s Mool Chand (" Convicted ") Page 19 of 19