Delhi District Court
State vs . Kailash Chand on 15 November, 2010
State Vs. Kailash Chand
FIR No. 169/87
PS Adarsh Nagar
IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN
MAGISTRATE-IV ROHINI COURTS, DELHI
FIR No. 169/87
PS Adarsh Nagar
U/S 279/304A IPC
State V/S Kailash Chand
C/No. 255/87
Unique ID No. 02401R0003031987
Date of Institution: 21.12.1987
Name of the Complainant ASI Prakash Chand
Name and address of accused Kailash Chand s/o Sh.
Jang Bahadur, R/o village
Bade Pura, Near Kho PS
Hafis Ganj, Tehsil
Nawabganj, District Bareli,
(UP).
Offence complained of U/S 279/304-A IPC
Plea of accused pleaded not guilty
Final Order Acquitted
Date of reserve for orders 15.11.2010
Date for announcing the orders 15.11.2010
Brief reasons for the judgment:
Vide this judgment, I shall dispose off the case FIR No. 169/87.
1.It is alleged in the charge-sheet that on 19.09.1987, the duty Ct. at C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 1 State Vs. Kailash Chand FIR No. 169/87 PS Adarsh Nagar HRH gave an information regarding some accidental patient brought at the hospital. The information was recorded as DD No. 25B and was assigned to ASI Prakash Chand. ASI Prakash Chand went to HRH where the Duty Ct. Dharam Chand told him that the patient has sustained injuries from Dala of a truck and was brought by Chandan Singh. The patient was found unfit for statement and no eye witness was present. ASI Prakash Chand sent the other Ct. for registration of the case and he proceeded to the spot. At the spot, Chandan Singh met him who stated that on that day, he had come to NS Mandi for transporting the vegetables on his truck. One DCM Toyota was parked just behind his truck and he was getting loaded the vegetables on his truck. The deceased Jai Narain was also present in the Subzi Mandi and he was getting loaded vegetables in his Nishan truck. Meanwhile at 10.30 AM, the driver of the aforementioned DCM Toyota came and started the same in geared condition. The DCM Toyota hit the deceased Jai Narain who struck against the Dala of his truck and fell down. The driver of the DCM Toyota i.e. the accused herein C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 2 State Vs. Kailash Chand FIR No. 169/87 PS Adarsh Nagar slipped from the spot. The injured was taken to the hospital and succumbed to the injuries. The accused thereafter surrendered in the police station and was arrested.
2. On completion of investigation, accused was sent up for trial.
After necessary compliances, charge U/S 279/304-A IPC was framed against accused. The accused pleaded not guilty and claimed trial.
3. Prosecution examined nine witnesses in total. PE stood closed on 19.08.2009. The statement of accused was thereafter recorded on 28.10.2009 and he preferred to lead evidence in his defence. In support of his case accused examined two witnesses. Final arguments have been heard. Records has been carefully perused.
4. I shall briefly touch upon the statement of PWs.
5. PW-1 SI Kishan Singh is the DO in the present case who deposed that on 19.09.87 at 10.20 AM, an information was received from HRH regarding accident of deceased which was recorded vide DD No. 25B and was marked to ASI Prakash Chand. Subsequently, at 01.15 PM, C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 3 State Vs. Kailash Chand FIR No. 169/87 PS Adarsh Nagar ASI Prakash chand sent a tehrir on the basis of which the instant FIR was registered.
6. PW-2 Punjab Singh retired SI deposed that on 21.09.87 he on the request of ASI Prakash Chand conducted the mechanical inspection of the vehicle/DCM Toyota Truck No. UGL-209 at the Police Station and prepared his report which is Ex. PW2/A. He stated that on inspection he found the mechanisms in order.
7. PW-3 Chander Sain deposed that on 14.04.87 which was Saturday at about 10.30 AM at Azadpur Subzi Mandi near police post at turning point, he was present and he saw that a DCM Toyota bearing No. UGL -209 came from standing position all of sudden in speed and hit one boy/deceased. He was taken to HRH. PW-3 immediately over powered the accused at the spot who was driver of the offending vehicle. Thereafter accused ran away from his custody after getting himself free from his hands. During cross-examination by Ld. APP for the State, he stated that accused was driving the vehicle in rash and negligent manner C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 4 State Vs. Kailash Chand FIR No. 169/87 PS Adarsh Nagar and thus accident took place.
He was cross-examined at length by Ld. Defence Counsel sh. R.K. Verma.
8. PW-4 Dr. L.T. Ramani, Dy. M.S. Loknayak Hospital deposed that on 20.09.87 he had conducted the PM examination on the body of Jai Narain, aged about 25 years s/o Jaidayal and found injuries as mentioned in the PM Report Ex.PW4/A As per his opinion, injuries were antemortom caused by vehicular accident and death was due to shock and hemorrhage consequent to injuries.
9. PW-5 SH. K.V. Singh , Medical Record Clerk, HRH deposed that he was working as Medical Record Clerk in HRH since 1989. He has seen the MLC of Jai Narain , No. 7046 of 87 prepared by Dr. OP Thakur, the MLC is Ex.PW5/A which bears the signature of Dr. Thakur at point A.
10. PW-6 Phool Chand deposed that deceased Jai Narain is the son of his elder brother who used to sell vegetable and use to reside in a room nearby his room. He deposed that Jai Narain had met with a road C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 5 State Vs. Kailash Chand FIR No. 169/87 PS Adarsh Nagar accident with one Nisan Truck and thereafter he was admitted to HRH. He also went to HRH where Jai Narain expired on the same night of 19.09.1987 and he identified the dead body of Jai Narain in Subzi Mandi Mortuary. Police recorded his statement Ex.PW6/A.
11. PW-7 Mata Ram S/o Dhuta Ram deposed that deceased Jai Narain is son of his elder brother who used to sell vegetables and used to reside in a room nearby his room on 19.09.87. He also deposed on the lines of PW-6 that Jai Narain had met with a road accident with one Nisan Truck and thereafter he was admitted to HRH. He also went to HRH where Jai Narain expired on the same night of 19.09.1987 and he identified the dead body of Jai Narain being his relative in Subzi Mandi Mortuary. Police recorded his statement Ex.PW7/A.
12. PW-8 Sh. Chandan Singh deposed that he used to go to sell the vegetables along with his deceased nephew named Jai Narayan. He deposed that on 19.09.87 he along with the deceased Jai Narayan as daily routine went to NS Mandi Azadpur. One vehicle No. DCM Toyata with C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 6 State Vs. Kailash Chand FIR No. 169/87 PS Adarsh Nagar No. UGL 209 was parked and the driver accused Kailash chand was sleeping in the said vehicle and the vehicle was in start condition. The accused drove the DCM Toyota in sleeping condition and struck against his nephew who was getting the vegetable loaded in the truck. As a result of the impact, his nephew stuck against one Dhala which was coming out of the truck and was cut. His nephew was taken to HRH where he expired in the mid-night. He gave his statement to the police as Ex.PW8/A.
13. PW-9 Ms. Deepa Sharma, Judge MACT Court , Dwarka deposed that On 25.09.97 she was working as MM at Tis Hazari Courts and on an application Ex.PW9/A she conducted the TIP on the same day in which accused refused to participate in the TIP. Application Ex.PW9/B moved by IO for supply of copy of TIP proceedings was allowed by her. She warned the accused that his refusal to participate in the TIP shall be taken as a piece of evidence against him during the trial . She recorded his statement. She also appended her certificate on the proceedings which is Mark A. Her proceedings are Ex.PW9/C. C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 7 State Vs. Kailash Chand FIR No. 169/87 PS Adarsh Nagar
14. Accused examined two witnesses in his defence.
15. DW-1 Sh. Pratap Singh deposed that on 19.09.1987, accused was sleeping in his parked DCM toyota and he was standing nearby the same waiting for his goods. Another Nishan truck was standing in front of the vehicle of accused on which, goods were being loaded. The chain of the dala of that truck suddenly broke due to which the dala fell on one person who was injured. Due to this, commotion took place at the spot and injured was taken to hospital. Police came subsequently and nabbed the accused despite he narrated the incident caused by the dala.
16. DW-2 Sh. Kali Charan stated that on that day, he came to Azadpur Mandi on the offending DCM Toyota of accused. The tempo was parked inside the shop and they were waiting for their turn for unloading the goods from tempo. Accused slept on the back seat of the tempo which was parked. One Nishan truck was also parked in front of DCM Toyota and goods were being loaded thereon. The chain of the dala of that truck suddenly broke and fell on one person. Commotion took C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 8 State Vs. Kailash Chand FIR No. 169/87 PS Adarsh Nagar place but the accused was still sleeping inside his tempo. After about 2-3 hours, police came at the spot and made inquiries from him. He narrated the aforementioned incident but the police took the accused with them. He also stated that one Pratap Singh (DW-1) was also present at the time of accident. During cross examination by Ld. APP for the State, he stated that he was standing by the conductor side of DCM Toyota and he and Pratap Singh were looking towards the goods which were being loaded on the truck. He denied that he was deposing falsely to save the accused.
17. In his statement recorded U/S 313 CrPC, accused claimed his innocence and further stated that he was simply sleeping in his stationary vehicle. He heard screaming noise and found that one boy was lying in accidental condition near the rear tyre of Nishan truck in front of his DCM Toyota.
18. Final arguments have been heard. Record has been carefully perused.
19. Ld. Defence counsel has countered the prosecution case on the C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 9 State Vs. Kailash Chand FIR No. 169/87 PS Adarsh Nagar ground that three versions have come on record regarding the incident. As per the version made in the complaint Ex. PW 8/A, the accused, in rash and negligent manner 'started' his DCM Toyota and struck against his Nishan Truck due to which Jai Narain was crushed in between. The second version is the statement of PW-8 made in the Court in which he stated that the accused was sleeping in the DCM Toyota which was in start condition and accused 'drove' the same in sleeping condition and struck against the deceased. As a result of this impact, deceased struck against one dala and was cut. The third version is that of PW-3 who is allegedly 2nd eye witness who stated that the tempo 'came' from standing position, all of a sudden in a speed and hit the deceased. So to sum up, one version says that the accused started the tempo while he was asleep. The 2nd version says that the accused drove the vehicle suddenly. It is noteworthy that PW-8, in his complaint to the police Ex. PW 8/A was silent as regards the accused driving in a sleeping condition whereas the theory of accused driving the tempo in sleeping condition was propounded for the first time C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 10 State Vs. Kailash Chand FIR No. 169/87 PS Adarsh Nagar in the Court. Secondly, in Ex. PW 8/A, he has not stated that the tempo was parked in start condition whereas PW-8 has deposed so in the Court. It shows that PW-8 has made substantial improvements in his depositions in the Court.
20. A different version has been given to the incident by the two DWs. Both of them stated that the accused was merely sleeping in his tempo whereas the deceased sustained injuries due to the sudden fall of the dala.
21. It is now to be seen by the Court if the injured sustained injuries on account of an accident caused due to rash and negligent driving of the accused or death was caused due to some accident without any culpability on the part of the accused. It is also to be examined if at all the accused was involved in the accident in question.
22. To decide the aforementioned questions , in my opinion the postmortem report of the deceased can be of great guidance. As per the postmortem report Ex.PW4/A, there was a stitched wound incised L C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 11 State Vs. Kailash Chand FIR No. 169/87 PS Adarsh Nagar Shape on the front of chest. Multiple wounds were there on other parts of the body. The diaphragm was also found ruptured and Liver was lacerated. As per the opinion the injuries are found to be ante mortem caused by vehicular accident. It is noteworthy that PW-4 was not subjected to cross-examination by the accused. His opinion has not been challenged which clearly says that the injuries were caused by vehicular accident. The theory put by the accused of the deceased being hit by a Dala on his own has not been put to PW-4 and it was also not put that the kind of injuries present on the body of the deceased could have been caused by falling of Dala . This theory propounded by accused seems to be an afterthought. Moreover it seems highly improbable that the falling of Dala could cause so many injuries on various parts of the body. At the most the place of the body where Dala fell could be the effected area. However, in the instant case multiple injuries were present on the chest , liver and abdomenal area. From the statement of PW-4 and from the discussion made herein above I unhesitantly hold that the injuries caused C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 12 State Vs. Kailash Chand FIR No. 169/87 PS Adarsh Nagar to the deceased were the result of a vehicular accident.
23. I shall now proceed to decide the contention of accused regarding contradictions/ different versions of witnesses. In my opinion the versions cannot be said to be contradictory. Only different words have been used to describe the same incident. As per Ex.PW8/A the word 'started' is used which does not always mean ignited. PW-8 stated in the court that the offending tempo was in start condition and accused drove it in sleeping condition. There cannot be said to be any contradictions in these versions. The last versions is of PW-3 who stated that the tempo came from standing position . Again this version is neither contradictory nor different from the previous versions.
24. Now, I have to find if there was any culpability i.e. any rashness or negligence on the part of the accused. In all cases of vehicular accidents, invariably it is presumed by the police that the driver of the vehicle causing the accident was either rash or negligent without ascertaining that he was so . To record a conviction, however, the case C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 13 State Vs. Kailash Chand FIR No. 169/87 PS Adarsh Nagar must be proved beyond reasonable doubts. In the instant case, it has been proved by the prosecution that the tempo of the accused suddenly moved and hit against the deceased while accused was sleeping in an ignited tempo. It was probably due to putting on gear the started vehicle. It has come on record that the truck with which the deceased finally collided was standing very closely in front of the offending tempo as the trucks were queued up at Azadpur Mandi waiting for their turns. This gearing up of the offending tempo could be purely and purely accidental without any fault/ negligence on the part of the accused. It was not the prosecution case that the accused was trying to breach the queue or was trying to do some rash driving. The facts which is come on record is that he was asleep in his tempo when tempo suddenly moved. I am of the considered view that the accused was neither rash nor negligent. In absence of these essential ingredients neither charge U/S 279 IPC nor U/S 304A IPC can be established. Accordingly the accused Kailash Chand is acquitted for the offence punishable u/s 279/304A IPC.
C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 14
State Vs. Kailash Chand FIR No. 169/87 PS Adarsh Nagar
25. The Bail Bond stands cancelled and surety for the accused stands discharged. Any endorsement placed on the documents of the surety may accordingly, be cancelled. The original documents of the surety, if retained on record be returned against acknowledgment. File be consigned to record room Announced in open court (Neeraj Gaur) Dated 15.11.2010 Metropolitan Magistrate-IV/NW Rohini Courts, Delhi C/No. 255/87 Unique ID No. 02401R0003031987 Page No. 15