Delhi District Court
In Re: State vs Anwar Ahmed on 9 May, 2011
IN THE COURT OF GAURAV RAO: METROPOLITAN
MAGISTRATE: SOUTH DISTRICT NEW DELHI
In Re: STATE VERSUS ANWAR AHMED
F.I.R. No: 377/01
U/s 279/337/338 IPC
P.S. Lodhi Colony
Date of Institution of Case : 15.04.2002
Judgment Reserved for : 09.05.2011
Date of Judgment : 09.05.2011
JUDGMENT:
(a) The serial no. of the case : 27/02/06
(b) The date of commission of offence : 09.10.2001
(c) The name of complainant : Ramesh S/o Sh. Jagdish
Singh, r/o H. No. 149, K.M. Pur,
New Delhi.
(d) The name, parentage, of accused : Anwar Ahmad S/o Sh. Akhtar
Ahmad, r/o L43 D, Janta
flat DDA, Saket New Delhi.
FIR No. 377/01 1/24
Present Address : As above
(e) The offence complained of : U/s 279/337/338 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Convicted
(h) The date of such order : 09.05.2011
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 09.10.2001 at about 7.00 am at crossing near 17 Block, Khanna Market, Jor Bagh crossing within the jurisdiction of police station Lodhi Colony, accused Anwar Ahmad was found driving a DTC bus bearing no. DL1PA6218 in a rash and negligent manner and while driving so he hit against scooter bearing no. DL3SK6348 and caused simple injuries to Dheeraj and grievous injuries to Ramesh and Prakash and thus thereby the accused committed offence u/s 279/337/338 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. accused was supplied the documents. Thereafter vide order dated 23.09.2002, notice u/s 279/337/338 IPC was framed against accused to FIR No. 377/01 2/24 which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined twelve witnesses.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW 1 HC Deep Singh deposed that on 09.10.2001 he was posted at PS Lodhi Colony as DO and on that day on receipt of rukka from Ct. Vakil Khan, he recorded FIR No. 377/01 i.e. Ex.PW1/A.
5. PW 2 Ct. Vakil Khan deposed that on 09.10.2001 he was posted at PS Lodhi Colony and on receipt of call of accident he along with the IO reached at the spot where both the vehicles were lying in an accidental condition. He deposed that IO left him at the spot and he proceeded towards medical hospital and he came back at the spot and he handed over a rukka to him for registration of the case. He deposed that he left for PS and got registered the FIR and came back at the spot along with copy of FIR No. 377/01. Thereafter, IO got the spot photographed and vehicles were taken into possession vide EX.PW2/A & B. He deposed that he prepared the site plan and other documents. He deposed that the accused FIR No. 377/01 3/24 was arrested (correctly identified) in his presence and his personal search was conducted vide Ex.PW2/C. He further deposed that IO also collected the papers vide memo Ex.PW2/D. He deposed that the D/L of the accused was also seized vide memo Ex.PW2/E and notice of arrest i.e. Ex.PW2/F was also given to the accused. He deposed that the photographs are Mark A to I. He deposed that both the vehicles were deposited in the malkhana.
6. During his cross examination by the Ld. Defence Counsel he stated that they started from PS at about 7.30 am and reached at the spot after 15 minutes. He stated that IO left the spot after 25 minutes. He stated that he does not know whether any public persons were present there. He stated that the IO came back at the spot from the hospital at 9.00 am. He stated that he does not know at whose instance the rukka was prepared by the IO. He stated that IO got the spot photographed. He stated that they remained at the spot for about 3045 minutes. He denied the suggestion that he was deposing falsely or that he signed the memos at the PS at the instance of the IO. He stated that he along with IO brought the vehicle to the PS from the spot and they reached the PS at about 10.00 am. FIR No. 377/01 4/24
7. PW 3 Ramesh deposed that on 09.10.2001 while he was going to Sarvodaya Vidyalaya on scooter bearing no. DL3SK6348 to drop Dheeraj and Prakash (both pillion riders) and when they reached at Block No. 17 near Khanna Market crossing at about 7.00 am, one DTC bus bearing no. DL1PA6218 which was driven by accused Anwar Ahmad (correctly identified) in negligent manner, hit the scooter from the front side due to which they fell down and received injuries. He deposed that police came at the spot. He further deposed that IO recorded his statement i.e Ex.PW3/A. He deposed that he had shown the place where the accident took place to the police.
8. During his cross examination he stated that the scooter involved in the accident belonged to him but the same was purchased by his brother and the RC was in the name of that person from whom his brother purchased that scooter. He stated that he does not know the name of that person. He stated that he had applied for DL for about 1 ½ year prior to the accident and the same had lost on that very day. He denied the suggestion that he was deposing falsely and he was not having any DL. He stated that he did not make any complaint regarding the loss of his purse containing his DL as he regained his conscious after one month after the FIR No. 377/01 5/24 accident. He stated that he did not get another DL prepared. He stated that he was not wearing helmet. He stated that Prakash and Dheeraj are his friends but he does not know their age. He stated that he does not know how the accident took place. He stated that he cannot tell the date, month and year but it was Tuesday.
9. PW 4 Prakash deposed that on 09.10.2001 he along with Dheeraj and Ramesh were going to their school on scooter which was driven by Ramesh and they were the pillion riders. He deposed that at about 7.00/7.30 am, when they reached at Khanna Market crossing near block no. 17, one DTC bus came from front side in a fast speed and negligent manner and hit the scooter due to which they fell down and received injuries on the part of body like head, face and legs. He deposed that he does not remember anything else except the above said facts.
10. During his cross examination by the Ld. APP for the State he admitted that they gave the signal by hand prior to take a right turn. He stated that the bus was coming from Safdarjung flyover side. He stated that despite seeing their hand, the driver i.e. the accused of the bus bearing no. DL1PA6218 did not apply the brake and hit the scooter. He FIR No. 377/01 6/24 stated that the bus was driven by the accused in rash and negligent manner.
11. PW 5 Retired SI Nand Lal Dua deposed that on 24.11.2002 on the request of IO ASI Roshan Lal, he conducted the mechanical inspection of two wheeler scooter bearing no. DL3SK6348. His detailed report in this regard is Ex.PW5/A.
12. PW 6 Udai Veer Singh deposed that on 09.10.2001 he conducted the mechanical inspection of DTC bus bearing no. DL1PA6218. His detailed report in this regard is Ex.PW6/A.
13. PW 7 Dr. Rajiv Sharma deposed that on 09.10.2001 he medically examined patient Ramesh vide MLC No. LS 919923/01 i.e Ex.PW7/A.
14. PW 8 Dheeraj deposed that on 09.10.2001 he along with Prakash and Ramesh were going to school on a two wheeler at about 7.00 am when they reached near the bus stop, the scooter fell down on the road after that he does not know what happened. He deposed that he did not see the accident. He further deposed that after one month police came to FIR No. 377/01 7/24 their house and shown him the photo of the driver only then he came to know about the accused.
15. During his cross examination by the Ld. APP for the State he admitted that on the day of incident he along with his friend Prakash were going on scooter bearing no. DL3SK6348 and Ramesh was driving the scooter. He admitted that from Khanna Market Jor Bagh crossing they took a right turn towards their school and his friend Prakash gave a signal for taking a right turn. He admitted that at the same time, a DTC bus bearing no. DL1PA6218 which was driven in a fast speed and rash and negligent manner came from the side of Safdarjung Airport and hit their scooter and dragged for some distance due to which they sustained injuries. He admitted that the driver of the offending bus took all of them to AIIMS hospital.
16. During his crossexamination by Ld. Defence counsel he denied the suggestion that police had shown him the photographs of the accused driver on the basis of which he identified the accused in the court. He admitted that he had read his statement outside the court. He admitted that the statement which was read over to him was written by the police on their FIR No. 377/01 8/24 own and not at his instance.
This witness was reexamined by the Ld. APP for the State and in his reexamination he admitted that whatever was stated by him in the crossexamination by the Ld. APP was correct.
During his further crossexamination by the Ld. Defence counsel he stated that he did not see the bus when it was moving.
17. PW 9 Dr. Sandeep deposed that MLC Ex. PW9/A was prepared by Abdullah Javed and the said doctor has left the hospital and his present whereabouts are not known/available.
18. PW 10 Sh. Shiv Narayan deposed that in the month of October, he was posted as ATI, DTC, SN Depot, New Delhi and on that day, he issued a certificate i.e. Ex.PW10/A to the effect that accused Anwar Ahmad was on duty on the school bus bearing no. DL1PA6218 and the conductor of the said bus was Rakesh Kumar.
19. PW 11 Dr. Jitesh Ahuja deposed that Xray report i.e Ex.PW11/A FIR No. 377/01 9/24 was prepared by Dr. Shashi Bhushan who has left the hospital and his present whereabouts are not known/available.
20. PW 12 SI Roshan Lal deposed that on 09.10.2001 he was posted at PS Lodhi Colony as ASI and on that day on receipt of DD No. 23 B, he along with Ct. Vakil Khan reached at the spot i.e 17 Block near Khanna Market where he found one scooter bearing no. DL3SK6348 & bus bearing no. DL1PA6218 in accidental condition and they came to know that the injured had been shifted to AIIMS Hospital by the driver of the bus. He deposed that he left Ct. Vakil Khan at the spot and reached at AIIMS Hospital and collected the MLC of the injured persons namely Dheeraj, Prakash and Ramesh. He deposed that the doctor stated that Dheeraj and Prakash were not fit for statement however, Ramesh was fit for statement. He deposed that he collected the MLCs of the injured persons which are already Ex.PW11/A, Ex.PW9/A & Ex.PW7/A and that he recorded the statement of injured Ramesh and made endorsement on the same as Ex.PW12/A and handed over the same to Ct. Vakil Khan for registration of the case FIR at the spot. He deposed that he prepared the site plan Ex.PW12/B and he also seized both the vehicles vide seizure memos already Ex.PW2/A & Ex.PW2/B and the vehicles were taken to PS and FIR No. 377/01 10/24 deposited in malkhana. The vehicle was got mechanical inspected through Sh. Nanal Lal Dua. The mechanical inspection report was collected by him and the same is on record as Ex.PW5/A and Ex.PW6/B. DL & RC of the accused were seized vide Ex.PW2/D & E. He deposed that the accused was also present at the hospital and he also accompanied him to the spot later on. He deposed that he arrested the accused at the instance of injured Ramesh vide Ex.PW2/F & his personal search was conducted vide Ex.PW2/C. He deposed that he recorded the statement of all witnesses and after completion of investigation, he filed the charge sheet in this case.
21. During his cross examination he admitted that he is not the eye witness of the accident. The information regarding the accident was received by him vide DD No. 23 B. The information was received at about 7.20 am. He stated that he reached at the spot within 510 minutes. He admitted that when he reached at the spot, no eye witness was found. Vol. Injured had already been removed to the hospital by the accused. He denied the suggestion that he did not visit the spot nor did he go to the hospital. He denied the suggestion that he did not meet any of the injured at the hospital. He stated that he was informed by the public regarding the admission of the injured at AIIMS Hospital. He denied the suggestion that FIR No. 377/01 11/24 he did not record the statement of injured Ramesh and also denied that Ramesh did not meet him at the hospital. He Vol. Stated that he had recorded the statement of injured Ramesh at the hospital and prepared the rukkak on the basis of the same. He stated that he arrested the accused at the instance of injured Ramesh and Vol. Stated that the injured persons were removed to the hospital by the accused. He denied the suggestion that he was deposing falsely or that no accident took place on 09.10.2001. He denied the suggestion that the accident occurred due to the fault of the injured persons or that the accused has been falsely implicated in the present case.
22. I have heard the arguments advanced at bar by the learned Defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
23. Before proceeding further with the judgment at this stage it will be worth while to highlight/mention that the accused Anwar Ahmed settled the matter with injured Ramesh as reflected in proceedings dated 26.02.2011. FIR No. 377/01 12/24
24. In order to prove its case and establish the guilt of the accused the prosecution has to prove that the accident was caused by accused Anwar Ahmed while driving DTC bus bearing registration no. DLIPA6218 in a rash and negligent manner and who while driving so hit against a scooter driven by Ramesh which resulted in simple injuries upon Dheeraj and grievous injuries upon Ramesh and Prakash.
25. After going through the material on record and giving my thoughtful considerations to the arguments advanced at bar, I am of the considered opinion that the prosecution has successfully brought home the guilt against the accused.
26. It stands proved/established from the deposition/testimony of injured Ramesh (PW3) and injured/eye witness Prakaash (PW4) duly corroborated by the other prosecution witnesses that it was the rash and negligent driv ing of accused Anwar Ahmed which led to the accident and injuries upon them.
27. PW3 Ramesh proved that on 09.10.2001 while he was riding scoot er no. DL3SK6348 and going to Sarvodaya Vidayala to drop Dheeraj and FIR No. 377/01 13/24 Prakash who were the pillion riders and they reached near Khanna Market crossing at about 7.00 am the DCT bus in question which was driven by accused Anwar Ahmed hit their scooter from front side as a result they fell down and he along with Prakash and Dheeraj received injuries.
28. This witness further proved that his statement was recorded by the police as Ex. PW3/A. In fact Ex. PW3/A formed the basis of theFIR as it was Ex. PW3/A which was endorsed by the IO as Ex. PW12/A and sent through Ct. Vakil for registration of the FIR.
29. The deposition of the injured Ramesh was duly corroborated by an other injured Prakash who was the pillion rider on the scooter driven by Ramesh. He was examined as PW4 and he proved that on 09.10.2001 while he was going to Sarvodaya Vidayala on scooter driven by Ramesh and Dheeraj was also sitting with him and they reached near Khanna Mar ket crossing at about 7.00 am the DCT bus in question which was driven by accused Anwar Ahmed at a fast speed hit their scooter from front side as a result they fell down and received injuries.
30. Therefore, both the complainant/injured proved the said accident dated 09.10.2001 and established the identity of the accused as the driver of the offending DTC Bus.
FIR No. 377/01 14/24
31. The prosecution story got further support/strength from the deposi tion of PW2 Ct. Vakil Khan who proved that on 09.10.2001 on receipt of call regarding the accident he along with the IO reached at the accidental spot where the DTC bus and scooter in question were lying. He further proved that on the basis of the rukka prepared by the IO he got the FIR registered and thereafter the vehicles in question were taken into posses sion vide Ex. PW2/A & Ex. PW2/B. He also proved that the accused was arrested in his presence and his D/L and other documents of the bus were seized vide documents Ex. PW2/C to Ex. PW2/F respectively.
32. FIR was proved by HC Deep Singh as Ex. PW1/A.
33. The mechanical inspection report of the offending DTC bus as well as the scooter are on record as Ex. PW5/A & Ex. PW6/A and as per the re port proved by PW5 Retired SI Nand Lal Dua and PW6 Uday Veer Singh the scooter and DTC bus did not suffer from any mechanical defect.
34. IO SI Roshan Lal (PW12) duly corroborated the prosecution story. He as was proved by PW3 and Ct. Vakil Khan also proved that on the ba sis of injured Ramesh the FIR was registered in the present matter. He also proved that accused Anwar Ahmed was present at the hospital and on the instance of Ramesh (PW3) he arrested the accused vide Ex. PW2/F. FIR No. 377/01 15/24 He also proved the seizure of the vehicle and documents as already dis cussed above.
35. Dr. Rajiv Sharma (PW7), Dr. Sandeep (PW9) and Dr. Jitesh Ahuja (PW11) proved the nature of injuries received by the injured vide MLCs Ex. PW7/A, Ex. PW9/A and Ex. PW11/A. From the MLCs bearing no. 91925, 91923 & 91924 which are available on record along with the opin ion of doctor it stands proved that Dheeraj received simple injuries where as the injuries as received by Ramesh and Prakash were grievous.
36. During the course of the arguments, Ld. Defence Counsel had con tended that the prosecution has miserably failed to bring home the guilt against the accused. It was argued that no public witness was joined by the IO in the investigation despite the fact that the injured and the eye wit ness claimed that numerous public persons had gathered at the spot at the time of accident. It was argued that one of the injured namely Dheeraj turned hostile and did not support the prosecution story and this casts seri ous doubts upon the prosecution claims. It was also argued that admittedly the injured were not wearing helmet and the accident occurred due to their negligence and not due to the negligence of accused driver. FIR No. 377/01 16/24
37. However, I do not agree with the either the contention of the Ld. De fence Counsel.
38. Regarding the contention that no public person was joined by the IO at the spot, in my opinion, there was no requirement of the same and ab sence of any public person has not affected the prosecution story in any manner. As discussed above, the deposition/testimony of injured Ramesh and Prakash are itself sufficient to bring home the guilt against the ac cused.
39. Testimony of an injured witness has its own efficacy and relevancy. He has no reasons to omit real culprit and implicate falsely the accused person. It's a well settled law that once the eye version is given particularly by the injured himself, the Court would normally rely upon such version of the prosecution unless it suffers from serious infirmities or improvements. (Balbir Singh v. State of Punjab, (P&H) 2003 Cri.L.J. 3148), State of Gujarat v. Bharwad Jakshibhai Nagribhai, (Gujarat) (DB) 1990 Cri.L.J. 2531 and Appabhai v. State of Gujarat, AIR 1988 SC 696. The Hon'ble Apex Court in the above mentioned matter held that the injured witness should be considered to be the best eyewitness to the incident and the discrepancy in his evidence which does not shake the basic version of the FIR No. 377/01 17/24 prosecution case may be discarded. The Court has also held that civilized people withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable.
40. In the present case I have no reasons to disbelieve the injured per sons. I find no reasons why they would falsely implicate the accused. There is nothing on record to suggest that they were inimical to him.
41. Even, the fact that no public person was joined in the investigation does not in any manner prejudice the prosecution case as The Indian Evidence Act does not specify any particular number of witnesses required to prove a fact and a fact can be proved even by one witness whether he is official or independent public witness depending upon the facts and circumstances of the case. Similarly PW8 Dheeraj's turning hostile does not effect the prosecution case in any manner. As discussed above testimony of Ramesh and Prakash clubbed with that of other prosecution witnesses is sufficient to bring home the guilt of the accused. None the less from the examination in chief as well as the crossexamination of Dheeraj it stands established that accident in deed occurred on 09.10.2001 due to the fault of the accused in the manner discussed above. FIR No. 377/01 18/24
42. Law requires that evidence has to be weighed and not counted (Ambika Prasad and Ano. Vs State 2002 (2) CRIMES 63 (SC). The Evidence Act does not lay down about any number of witnesses needed for proving a particular fact.
43. Reliance can be placed upon Chittar Lal v. State of Rajasthan, (SC) 2003 Cri.L.J. 3548 wherein it was held:
It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testi mony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. 1996(1) RCR(Crl.) 308 (SC) relied on.
44. The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the In dian Evidence Act, 1872. This position has been settled by a series of de cisions. The first decision which has become locus classicus is Mohamad Gugal Esa Mamasan Ger Alalah v. The King, AIR 1946 PC 3. The Privy Council focused on the difference between English Law where a number of FIR No. 377/01 19/24 statutes make conviction impermissible for certain categories of offences on the testimony of a single witness and Section 134 of Evidence Act. The view has been echoed in Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 , Guli Chand and others v. State of Rajasthan, AIR 1974 SC 276, Vahula Bhushan @ Vehuna Krishnan v. State of Tamil Nadu, AIR 1989 SC 236, Jagdish Prasad and others v. State of M.P., AIR 1994 SC 1251, and Kartik Malhar v. State of Bihar, 1996(1) RCR(Crl.) 308 (SC) : 1996(1) SCC 614, Namdeo v. State of Maharashtra, (SC) 2007(2) R.C.R.(Criminal) 893 and Shivaji Sahebrao Bobade v. State of Maharashtra, (1973)2 SCC 793.
45. Lastly, it is no longer resintegra that conviction can be based upon the sole testimony of an eye witness if his presence at the spot is natural and his testimony inspires confidence. Reliance can be placed upon the law laid down in "State of UP v. Ballabh Dass (SC) 1985 (2) R.C.R. (Criminal) 287, Badri v. State of UP., (SC) 1975 A.I.R (SC) 1985, Bur Singh v. State of Punjab, (SC) 2008 (4) R.C.R. (Criminal) 834, State of UP. V. Vinod Kumar (Dead) and Udai Bhan Singh, (SC) 1992 (3) R.C.R (Criminal) 689.
FIR No. 377/01 20/24
Both the injured clearly identified the accused as the driver of the of fending vehicle/Bus at the time of the accident. Furthermore, it stands proved from the deposition of the IO that the accused was present in the hospital as in fact it was the accused Anwar Ahmed who had taken injured to the hospital after the accident. This fact is further proved from MLCs 91923 to 91925 which are on record and where it is reflected that the in jured were accompanied to the AIIMS hospital by accused Anwar Ahmed on 09.10.2001.
46. It is further proved from the deposition of the IO and injured Ramesh that it was at inured Ramesh's instance that the accused was arrested. It is also to be seen that the bus in question is a DTC bus and it was proved by Shiv Narayan who was examined as PW10 and who proved Ex. Pw10/A that on the date, time and spot of accident it was accused Anwar Ahmed who was in possession of bus as its driver.
Hence, no doubt remains that it was accused Anwar Ahmed who was driving the DTC bus at the time of accident.
47. Regarding the rash and negligent driving it is to be seen that what is rash/negligence varies from case to case and there cannot be any fixed parameters for judging rashness/negligence. At the same time, there can FIR No. 377/01 21/24 not be any assumption/presumption of the same. Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklesness or indifference as to the conse quences. Criminal negligence on the other hand is the gross and culpable or proper case and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the cir cumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Thus, the main criterion for decid ing whether the driving which led to the accident was rash and negligent is not only the speed of the offending vehicle but deliberate disregard to the obligation of its driver to drive with due care and attention and taking a risk indifferent to the harmful consequences resulting from it. Niranjan Singh v. State (Delhi Administration), (Delhi) 1997(1) R.C.R.(Criminal) 320 :
48. In the case at hand the injured persons namely Ramesh and Prakash categorically stated that the DTC bus was driven by the accused at a fast speed and in a rash and negligent manner and it hit their scooter from the front side despite the fact that they made several gestures to the accused/driver to stop/slow down the vehicle. However, the accused/driv FIR No. 377/01 22/24 er did not stop/slow down the vehicle and and he hit them from the front side. This testimony of the injured/eye witnesses clubbed with the site plan on record i.e. EX. PW12/B leaves no doubt regarding the rash and negli gent manner in which the accused was driving the bus. It is beyond my contemplation that how could the accused while driving the DTC bus with such vide front screen/window could not see the scooterist taking the turn. In fact he was waived by both the injured to stop the vehicle but he did not stop and instead hit them and dragged them for a distance. This is nothing but rashness/negligence writ large. The fact that the injured persons were not wearing helmet do not by any manner mitigate the negligence of the accused. Contributory negligence is no defence and does not come to the aid of the accused. The fact remains that he hit the injured's scooter head on.
49. Therefore, considering the evidence as led by the prosecution, especially the deposition injured, eye witness and the site plan, I am of the considered opinion that the prosecution has been able to prove the guilt against the accused beyond the shadow of doubt. Accordingly the accused is held guilty and convicted of charges in the present case. FIR No. 377/01 23/24
50. A copy of this judgment be supplied to the accused free of cost and the matter be now listed for arguments on the point of sentence.
Announced in the open (Gaurav Rao)
Court on 09.05.2011 MM (South)/New Delhi.
FIR No. 377/01 24/24