Delhi District Court
State vs . Niranjan Kumar on 28 February, 2012
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IN THE COURT OF SH. VIDYA PRAKASH ACMM1/NW/RC/DELHI
State Vs. Niranjan Kumar
FIR No. 257/96
PS: Keshav Puram
U/s 279/304A IPC
Case ID No. 02401R0020111997
JUDGEMENT
A) Sl. No. of the case : 313/2
B) The date of commission : 31.10.1996
of offence
C)The name of the complainant : Sub Inspector Dharmender
PS Keshav Puram, Delhi
D) The name & address of accused : Niranjan Kumar
S/o Sh. Hira Lal
R/o VPO Ladpur, Delhi
E) Offences complained of : U/s 279/304A IPC
F) The plea of accused : Pleaded not guilty
G) Final order : Convicted
H) The date of such order : 28.02.2012
Date of Institution: 26.07.1997
Judgment reserved on: 25.02.2012
Judgment announced on: 28.02.2012
FIR No. 257/96 Page No. 1/19
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THE BRIEF REASONS FOR THE JUDGEMENT:
1. Briefly stated the case of the prosecution is that on 31.10.1996 at 7.15 PM near B4, Bus Stand, Road No. 37, Prembadi Flyover, Delhi, within the jurisdiction of PS Keshav Puram, the accused Niranjan Kumar was driving a bus bearing registration No. DL1P2142 on the public way in rash and/or negligent manner so as to endanger human life and personal safety of others and while driving the said bus in aforesaid manner, he hit against one person namely Om Parkash Kulshrestha which resulted into his death not amounting to culpable homicide.
2. The case of the prosecution as per the charge sheet is that DD No. 42B dt. 31.10.96 regarding road accident was received in PS Keshav Puram. Said DD was handed over to SI Dharam Dev who alongwith Ct. Sheoraj went to the spot. On inquiry, it was revealed that one bus had hit against a pedestrian and ran away from the spot. It was further revealed that the injured had already been taken removed by PCR to HRH. Accordingly, they went to HRH where SI Dharam Dev obtained MLC No. 15210/96 of the injured who was declared brought dead. They made efforts to search eye witness of the accident in the hospital but no witness was found. SI Dharam Dev prepared rukka on the basis of DD No. 42B and handed over the same Ct. Sheoraj who got registered FIR in respect of offences u/s 279/304A IPC. The dead body was got preserved in mortuary and after its identification by legal heirs, the postmortem was got conducted and dead body was handed over to the FIR No. 257/96 Page No. 2/19 3 legal heirs. On 04.11.96, the alleged eye witness namely Sh. Raj Kumar came in the hospital and gave statement that on 31.10.96, he had boarded white line bus no. DL1P2142 plying from Rohini to Connaught Place. At about 7.10 pm, when the said bus crossed Prembadi Flyover, it hit against one pedestrian who was walking by the side of the road due to which he fell down. However, the driver of the said bus fled from the spot despite being asked by the passengers to stop the bus. However, he got down from the said bus at Karol Bagh and at that time he had noted down the registration number of the said bus. He had come to PS on 04.11.96 in order to inquire about the accident when he came to know that the said injured had already expired. He further told SI Dharam Dev that the said accident took place due to negligence of driver of bus no. DL1P2142 and he can identify the driver of the bus if produced before him. Then, IO SI Dharam Dev served notice u/s 133 MV Act upon Ms. Nirupala who was registered owner of the aforesaid bus. Accordingly, she produced said bus as well as its driver namely Niranjan Kumar(accused herein) in the PS on 04.01.97 where the accused was arrested and the bus was seized. IO moved an application for conducting judicial TIP of the accused but the accused refused to participate in judicial TIP before Ld. Link MM. IO also got the mechanical inspection of the said bus conducted and obtained PM report etc. After completion of investigation, charge sheet in respect of offences U/s 279/304A IPC was prepared and filed in the court against accused and accordingly cognizance was taken by Ld. Predecessor.
FIR No. 257/96 Page No. 3/19 4
3. Complete copies were supplied to accused as per compliance of section 207 Cr.PC and arguments on notice were heard. Ld predecessor framed the notice for the offence U/s 279/304A IPC IPC against accused vide order dated 13.08.01. Record shows that similar notice in respect of offences u/s 279/304A IPC was again served upon the accused by Sh. Raj Kapoor the then Ld. MM on 09.12.04.
4. In support of its case, the prosecution has examined 10 witnesses namely PW1 Dr. Shambhuji, PW2 Sh. K.V.Singh Medical Record Clerk, PW3 HC Khajan Singh, PW4 Smt. Nirupala, PW5 Dr. V.P.Singh CMO, Hindu Rao Hospital, PW6 Sh. Raj Kumar, PW7 Ct. Swaraj Singh, PW8 Sh. Sanjay Garg, the then Ld. MM, PW9 SI Mandeep and PW10 Inspector Dharam Dev.
5. Thereafter, the statement u/s 313 Cr.P.C of accused was recorded on 19.11.2011 wherein his defence was of general denial. He denied that he was driving white line bus no. DL1P2142 on the date of accident in question at the same place. The accused stated that he is quite innocent and has been falsely implicated in this case. Although, he opted to lead DE but he failed to produce any witness towards DE despite grant of repeated opportunities and ultimately, he closed his DE on 16.02.12.
6. I have heard Ld. APP for the State and Ld. Counsel Sh. Sanjiv Kumar Sharma adv on behalf of the accused. I have also perused the record carefully. FIR No. 257/96 Page No. 4/19 5
PW1 Dr. Shambhuji is the formal witness who had identified dead body of his father Sh. O.P.Kulshrestha in Hindu Rao Hospital. He proved his statement to that effect as Ex.PW1/A and receipt Ex.PW1/B about handing over dead body of the deceased. The said witness has not been cross examined by accused despite grant of opportunity.
PW2 Sh. K.V.Singh Medical Record Clerk posted in Hindu Rao Hospital proved postmortem report No. HRH 350/96 conducted by Dr. Neeraj Kumar as Ex.PW2/A. He deposed that Dr. Neeraj Kumar had left the said hospital but he can identify the signature of said doctor having worked with him during the course of his duty. The said witness has not been cross examined by the accused despite grant of opportunity.
PW3 HC Khajan Singh is DO who has proved carbon copy of FIR Ex.PW3/A and endorsement on rukka as Ex.PW3/B. He has not been cross examined by the accused despite grant of opportunity.
PW4 Smt. Nirupala is the registered owner of bus No. DL1P2142. She deposed that on 31.12.96, she had received notice u/s 133 MV Act and filed her reply Ex.PW4/A thereto. She had also produced the driver of said bus namely Niranjan Kumar i.e the accused herein and also identified the accused during trial. FIR No. 257/96 Page No. 5/19 6 She further deposed that accused was arrested by police after interrogation and his personal search was conducted vide personal search memo Ex.PW4/B in her presence. She further testified that the said bus was seized vide seizure memo Ex.PW4/C, photocopies of insurance documents and photocopy of permit, original RC of the said bus were also seized by the IO vide seizure memos Ex.PW4/D, Ex.PW4/E and Ex.PW4/F respectively. She took the bus on superdari vide superdarinama Ex.PW4/G. The said witness has not been cross examined by the accused despite grant of opportunity.
PW5 Dr. V.P.Singh CMO Hindu Rao Hospital has proved MLC of the patient who was brought to the HRH on 31.10.96 with alleged history of RTA as Ex.PW5/A. He deposed that the said patient was declared brought hospital at about 7.30 pm. He has not been cross examined by the accused despite grant of opportunity.
PW6 Sh. Raj Kumar is the alleged eye witness. He deposed that on 31.10.96, he went to Rohini for his personal work. At about 6.45 pm, he boarded a white line bus from Madhuban Chowk. When bus reached near Prembadi flyover, the bus jumped red light signal and thereafter, same hit against one old person who was walking by the side of the road. The driver of the said bus did not stop the bus despite being asked by the passengers to do so. He had deboarded the bus at Connaught Place and noted down the number of the said offending bus as DL1P2142 and words "Rangili Morni" written on the back side of the said bus, at FIR No. 257/96 Page No. 6/19 7 that time. He further deposed that after 34 days, he had gone to PS Keshav Puram and informed the police about the accident. He also correctly identified the accused before the Court to be the person who had caused the accident while driving the said bus in a negligent manner.
During his cross examination, PW6 deposed that on the date of incident, he had boarded the bus from Madhuban Chowk for going to Connaught Place. There were about 1520 passengers in the said bus. The bus reached at the place of accident at about 7.00 or 7.15 pm. He was sitting on the back seat of the conductor seat. There was no heavy traffic at Prembadi Flyover at that time. However, he did not make call to the police. He deboarded the bus after about 3045 minutes of the accident. He testified that on 04.11.96, he went to bus stand of B4 and made inquiries as to which PS he should approach then he was suggested to approach PS Keshav Puram but he did not remember the name of the police official with whom he had met at that time. He orally narrated the entire facts. His statement was recorded and subsequently he was informed by the police official of PS Keshav Puram that the injured had already expired. He did not visit PS Keshav Puram between 4.11.96 till the date when he attended the Court for identifying the accused. He denied the suggestion that he did not inform the police about the accident on the same day as he was not travelling in the said bus.
PW7 Ct. Swaraj Singh deposed that on 31.10.96 at about 7.30 pm, one call regarding accident at B4, Lawrence Road, Road No. 37, was received on which he FIR No. 257/96 Page No. 7/19 8 alongwith IO SI Dharam Dev reached at the spot. On inquiry, it was revealed that injured had been taken to HRH by the PCR Van. IO collected MLC of injured on which he was declared as brought dead. IO prepared rukka and handed over to him for registration of FIR. During his cross examination, he deposed that they had reached the spot at about 7.40 pm. The distance between the PS and place of accident was about 1 km and they had gone to the spot on two wheeler. They finally left the spot at about 8.45 pm. He denied the suggestion that he did not join the investigation with IO and all the proceedings were conducted while sitting in the police station.
PW8 Sh. Sanjay Garg Ld. ASJ has proved TIP proceedings as Ex.PW8/A. He deposed that the accused had refused to participate in judicial TIP despite being warned that his refusal to participate in TIP could go against him. The said witness has not been cross examined by the accused despite grant of opportunity.
PW9 SI Mandeep deposed that on 30.11.96, he went to STA Rajpur Road for making inquiry about the registered owner of bus bearing no. DL1P 2142. Concerned clerk informed the name of registered owner as Smt. Nirupama but she was not found at her aforesaid residence. He served notice u/s 133 MV Act Ex.PW9/A upon Smt. Nirupama on which she produced bus No. DL1P2142 and its driver namely Niranjan Kumar (accused herein) in PS Keshav Puram. The bus was taken into possession vide seizure memo Ex.PW4/C. Documents were also seized FIR No. 257/96 Page No. 8/19 9 vide seizure memos Ex.PW4/D & Ex.PW4/E. Accused Niranjan was interrogated who admitted that he was driving the bus on the date of accident. He arrested him in the present case and prepared personal search memo Ex.PW4/B. Bus was mechanically inspected through Inspector Shyam Lal Chhabra and collected his report Ex.PW9/B. He further deposed that the accused had refused to participate in judicial TIP on 07.01.97. He also identified the accused before the Court. During cross examination, he deposed that case file was handed over to him on 30.11.96. He made departure entry whenever he visited the STA. He deposed that Smt. Nirupala had produced the accused on 04.01.97 at PS Keshav Puram. He got the said bus mechanically inspected through Sh. Shyam Lal Chhabra on 04.01.97 itself. He had also recorded the statements of Smt. Nirupala, Shyam Lal Chhabra and other police officials. He categorically deposed that the accused was released on bail by Ld. MM with direction to remain in muffled face till the conduct of his judicial TIP.
PW10 Inspector Dharam Dev deposed that on 31.10.96 on receipt of DD No. 42B regarding accident, he alongwith Ct. Shyoraj had gone to the spot where no eye witness was found present and the offending vehicle was also not there. On inquiry, it was revealed that one vehicle had hit against one old person who was removed to HRH. They went to HRH where he collected MLC of said injured person who was declared as brought dead. He came back to the spot and prepared rukka Ex.PW10/A on the basis of copy of DD No. 42B and got the FIR registered FIR No. 257/96 Page No. 9/19 10 through Ct. Shyoraj. He prepared site plan Ex.PW10/B. On 02.11.96, he had gone to mortuary of HRH. He filled the inquest paper Ex.PW10/C and made request Ex.PW10/D for conducting the postmortem. On 04.11.96, one Raj Kumar came at PS Keshav Puram and claimed that he had witnessed the accident in question. His statement was accordingly recorded by him and thereafter he was transferred from PS Keshav Puram on 08.11.96. During his cross examination, nothing material or contradictory could be elicited by accused.
7. While opening his argument, Ld. defence counsel argued that PW6 Raj Kumar is an interested witness who has been planted by prosecution in order to falsely implicate the present accused. It has been argued that testimony of PW6 is not free from doubt and there is no other eye witness to the accident examined in this case due to which prosecution has failed to prove its case beyond reasonable doubt.
8. On the other hand, Ld. APP for the State has argued that PW6 Raj Kumar has fully supported the case of prosecution on material points regarding identity of the accused to be the driver of the offending bus at the time of accident as well as his rash and negligent conduct while driving the offending bus at that time. Thus, the prosecution has been able to prove its case against the accused beyond reasonable doubt.
FIR No. 257/96 Page No. 10/19 11
9. 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 white line bus at the time of accident;
2. That the accused was driving the offending bus in rash and/or negligent manner;
3. That the accused had caused accident in question while driving the offending vehicle in rash and negligent manner; and
4. That due to accident, death was caused.
Now it has to be examined as to whether the prosecution has been able to bring home the guilt of accused beyond shadow of doubt or not.
10. The star witness of the prosecution i.e PW6 Raj Kumar allegedly witnessed the accident in question. He has categorically deposed during chief examination that accused herein namely Niranjan Kumar was driving the offending bus bearing no. DL1P2142 at the time of accident. He has also categorically stated that accident was caused due to the negligence of the accused as he was driving the said bus in a negligent manner. During his cross examination, he also produced his driving license as proof of his identity. Not even a single suggestion has been given by accused during cross examination of PW6 namely Raj Kumar that accident was not caused by said bus or due to his negligence. The relevant portion of statement of said PW whereby he deposed that the accused had hit against the old person who was walking by the side of the road near Prembadi Flyover, has also not been FIR No. 257/96 Page No. 11/19 12 disputed during cross examination. Therefore, deposition to the aforesaid extent made by PW6 amounts to admission thereof on the part of accused in view of well settled law that any part of the statement which goes uncrossed is deemed to have been admitted. While taking this view, I am also fortified by the judgment our own High Court in the matter "Bal Kishan Vs. MCD" reported at 1976 RLR (N) 112.
11. Moreover, PW4 Smt. Nirupala who is the registered owner of the offending bus no. DL1P2142, testified that the accident in question took place with the said bus. She has also proved her reply Ex.PW4/A to the notice u/s 133 MV Act wherein she has mentioned that the accused herein namely Niranjan Kumar was driving the aforesaid bus at the time of accident. The testimony of PW4 totally remained uncrossed and unchallenged and thus same amounts to admission on his part in view of the authority mentioned supra.
12. Further more, the accused refused to join judicial TIP at the stage of investigation on the ground that he was driving the bus on the same route for the last three years and witness was known to him. PW8 has proved the said judicial TIP proceedings as Ex.PW8/A. Testimony of said witness has also not been disputed by accused as he preferred not to cross examine the said witness. However, accused failed to put even a suggestion during cross examination of PW6 that he (PW6) was previously known to him or even during the cross examination of IO i.e PW9 SI Mandeep Singh. The accused has also not examined FIR No. 257/96 Page No. 12/19 13 any witness towards DE for proving the said plea. Rather, the accused has taken entirely different plea in his statement u/s 313 Cr.P.C by stating that he had refused to participate in TIP proceedings as same was advised by his counsel. In view of the aforesaid backdrop, Court agrees with the submission made by Ld. APP for the State that an adverse inference should be drawn against the accused that he would have been duly identified by the witness during judicial TIP in case he would have joined the said proceedings.
13. The defence taken by accused in his statement u/s 313 Cr.P.C that he was not driving the aforesaid bus at the time of accident and he went to police station alongwith Smt. Nirupala on her request that her aforesaid bus was impounded by the police and he was requested to sign some papers in the police station for release of bus without being informed about the accident in question, could not be proved either during the cross examination of prosecution witnesses or by way of DE. It is also relevant to mention here that the accused failed to produce any witness towards DE despite grant of several opportunities.
14. In view of the statements of PW4 and PW6 coupled with reply Ex.PW4/A to the notice u/s 133 MV Act and the refusal of accused to participate during judicial TIP as per proceedings Ex.PW8/A, it stands proved on record that the accused herein was driving the offending bus no. DL1P2142 at the time, date and place of accident.
FIR No. 257/96 Page No. 13/19 14
15. This brings me down to the next question as to whether the said offending bus was being driven in rash and/or negligent manner. In this regard, the testimony of PW6 is quite clear as he categorically deposed that the bus jumped red light signal and then hit against the old person who was walking by the side of road. During cross examination, he also stated that there was no heavy traffic at Prembari Flyover at that time and he had seen the bus driver hitting the bus against the pedestrian. The testimony of PW6 to the extent whereby he deposed that the bus driver did not stop the bus despite being requested by passengers to do so on the ground that it was the minor accident, remained uncrossed and unchallenged. The conduct of the accused in fleeing away from the spot after hitting the bus against the pedestrian, itself proves rashness/negligence on his part as any prudent and reasonable person would not have fled away from the spot after hitting any person in case there was no negligence on his part.
16. The Court does not find any substance/force in the contention raised on behalf of accused that PW6 is an interested witness or that he has been introduced as a witness in this case in order to falsely implicate him in this case. In this regard, Ld. defence counsel has placed reliance upon the statement of Sh. Raj Kumar (PW6) which is Ex.PW6/DA recorded by police wherein he stated that he had deboarded the offending bus in the area of Karol Bagh whereas he testified during his chief examination recorded during trial that he had deboarded the bus in the FIR No. 257/96 Page No. 14/19 15 area of Connaught Place. On the basis of said contradiction, Ld. Defence counsel has argued that PW6 had got down from the bus in the area of Karol Bagh and thereafter, he would have boarded another bus from the area of Karol Bagh and went to Connaught Place and the registration number of the bus stated by him during trial, is that of said another bus and not the bus which was being driven by the accused. There is total fallacy in the said argument. It has been sufficiently explained by PW6 during his cross examination that he had to go to Mohan Singh Palace and he did not know as to whether same was in the area of Karol Bagh or in Connaught Place. Thus, the contradiction if any appearing as regards the place where PW6 had deboarded the bus, is on account of ignorance of the said witness about the said area but same neither creates any doubt on the trustworthiness of the testimony of said witness nor the statement of said witness can be brushed aside on account of said reason.
17. PW10 namely Inspector Dharam Dev has also corroborated the prosecution story by deposing that on 04.11.96, one public person namely Sh. Raj Kumar (PW6) had visited PS Keshav Puram and informed that he was also travelling in the offending bus no. DL1P2142 at the time of accident and he had recorded his (PW6) statement (Ex.PW6/DA). No suggestion was put to the said witness during cross examination that PW6 namely Raj Kumar did not visit the PS or that he did not make any statement to him (PW10). In view of the testimonies of prosecution witnesses as discussed above, there is no scope for any doubt regarding the FIR No. 257/96 Page No. 15/19 16 presence of PW6 Sh. Raj Kumar in the offending bus and the accused having caused the accident in question with the offending bus no. DL1P2142.
18. So far as the minor contradiction appearing in the statement of PW3 namely HC Khajan Singh DO whereby he deposed that rukka was received in PS at about 8.45 pm and the statement of PW7 namely Ct. Sheoraj Singh whereby he deposed that he came back to the spot alongwith copy of FIR at about 8.45 pm is concerned, it is relevant to note that PW7 testified during cross examination that the distance between PS Keshav Puram and the place of accident was about 1 km. Such distance of 1 km would have been covered within a short span of 510 minutes and thus, same can not be termed as material contradiction so as to disbelieve the testimonies of both the said witnesses. The Court also does not find any force in the contention raised by Ld. Defence counsel that the statement of PW7 is not believable. Said witness stated during cross examination that despite distance between place of accident and Hindu Rao Hospital being 78 km and after having reached the spot at about 7.40 pm, he reached from the spot to the hospital at about 7.45 pm alongwith IO. Ld. Counsel submitted that distance of 78 km could not have been covered within such a short period. Moreover, some time would have been taken by IO alongwith PW7 at the spot also. Thus, it was not possible for them to reach the hospital at about 7.45 pm. No doubt, the testimony of PW7 to the aforesaid extent is not believable but still said portion of his testimony is immaterial and does not constitute material contradiction so as to throw out the case of FIR No. 257/96 Page No. 16/19 17 prosecution on this ground alone when the prosecution witnesses have otherwise duly supported its case on all material points. Moreover, no question on said aspect was put by accused during cross examination of PW9 SI Mandeep with whom PW7 had accompanied at the relevant time on that day. It was incumbent upon accused to put relevant question on said aspect during cross examination of PW9 so as to bring contradictions in the statements of PW7 and PW9, on record. Further more, such minor contradictions are quite natural and bound to occur with the passage of time. It can not be overlooked that accident in question took place on 31.10.96 whereas the statement of PW7 was recorded on 23.03.11 i.e after a period of about 14 years of the date of occurrence. It has been held by Hon'ble Apex Court in the judgment reported at 2006 I AD (SC) 389 that well established principle of law is that every discrepancy in the statement of a witness can not be treated as fatal to the prosecution case.
19. In another judgment in the matter titled as "State of H.P. Vs. Lekh Raj & Ors" reported at JT 1999 (9) SC 43, it has been held that in the deposition of witnesses, there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation and normal errors of memory due to lapse of time and due to mental disposition such as shock and horror at the time of occurrence and the like. It was further observed that traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. FIR No. 257/96 Page No. 17/19 18
20. It could not be proved by the accused that he was previously known to PW6 Sh. Raj Kumar or to either of the other prosecution witnesses examined during trial or that PW6 had any previous enmity with him which prompted him (PW6) to depose falsely against him. No motive whatsoever has been attributed by accused on the part of PW6 which may persuade this Court to disbelieve the testimony of said witness.
21. No question whatsoever has been asked during cross examination of PW6 on the aspect of rash and negligent driving of offending bus at the time of accident. Mechanical Inspection report Ex.PW9/B (which remained unchallenged during trial) clearly shows that offending vehicle was found fit for road test and its horn, foot brake, etc. were in working condition. Postmortem report Ex.PW2/A proved by PW2 shows that death was due to shock and hemorrhage caused by the injuries. The relevant portion of testimony of PW6 in this regard coupled with other evidence (oral as well as documentary evidence) in the form of mechanical inspection report Ex.PW9/B and postmortem report Ex.PW2/A proves beyond doubt that the offending vehicle was being driven in rash and negligent manner at the time of accident and due to said reason, the offending bus hit against the pedestrian namely Om Prakash resulting into his death.
22. In view of the aforesaid discussion, Court is of the view that prosecution has FIR No. 257/96 Page No. 18/19 19 been able to prove its case in respect of offences U/s 279/304A IPC against accused Niranjan Kumar beyond reasonable doubt. Consequently, I hereby convict accused Niranjan Kumar for the offences U/s 279/304 A IPC.
Announced in the open court (VIDYA PRAKASH)
today on 28.02.2012 (ACMM1/NW/RC/DELHI)
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