Delhi District Court
State vs . Deep Chand Saini on 29 August, 2016
IN THE COURT OF SH. ANKUR JAIN
ADDL. CHIEF METROPOLITAN MAGISTRATE
DWARKA COURTS : NEW DELHI
State Vs. Deep Chand Saini
FIR No: 153/12
PS: Dwarka Sector 23
U/s: 279/337/304-A IPC
Date of Institution of the case : 09.07.2013
Date for which the Judgment reserved : 23.08.2016
Date on which the Judgment pronounced: 29.08.2016
a) Unique ID of the case : 02450R4292802016
b) Date of commission of offence : 26.09.2012
c) Name of complainant : SI Ram Pratap
No. D-4215
PS Dwarka Sector 23
New Delhi.
d) Name of accused, his parentage : Deep Chand Saini
S/o Sh. Kewal Ram
Saini
R/o VPO Dhani
Khadra, Tehsil & PS
Neem ka Thana,
District Seeker,
Rajasthan.
e) Offence complained of or proved : u/s 279/337/304-A IPC
f) Plea of accused : Pleaded not guilty
g) Final Order : Convicted.
h) Date of such Order : 29.08.2016
JUDGMENT
1. Brief facts of the case are that on 27.09.2012, DD No. 2-A was handed over to SI Ram Avtar, who went to the place of FIR No:153/12 State Vs Deep Chand Saini Page 1 of 7 incident and saw that one Truck bearing Regn No. RJ- 14GC-9149 is overturned on the left side and inside the Truck, dust was lying. One motorcycle and one deceased was also lying on the spot. The spot was got photographed but he could not locate any eye witness. The labourers who were sitting in the truck were taken to the hospital as they had received injuries. On the basis of DD entry and MLC, FIR u/s 279/337/304-A IPC was registered. After completion of investigaion, charge sheet was filed against the accused Deep Chand Saini.
2. Accused appeared in Court on 09.07.2013 and vide order dated 11.10.2013 notice u/s 279/337/304-A IPC was framed against the accused to which accused pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined as many as 13 witnesses. PW-1 Gulab Dass stated that at the time of incident, he was working as a labour for unloading the goods and on 26.09.2012 at about 08:00 p.m. they boarded the Truck at Billaspur Chowk where he felt that the truck was being driven in high speed and negligent manner, however, during the journey he slept and thereafter got up when the truck turned turtle at the Chowk in Dwarka. He sustained injuries. As per this witness, the truck was overloaded. PW-2 Mahesh has also deposed on the same lines as PW-1. PW-3 Yadbinder Singh is cousin of deceased who identified the dead body of deceased Sandeep vide statement Ex.PW-3/A and receipt of dead body vide statement Ex.PW-3/B. PW-4 Pooran Chand is FIR No:153/12 State Vs Deep Chand Saini Page 2 of 7 the Mechanical Inspector who inspected the Truck and motorcycle and gave his report Ex.PW-4/A and Ex.PW-4/B respectively. PW-5 HC Dharampal is a duty officer who proved DD No. 2A and DD No. 5-B as Ex.PW-5/A and Ex.PW-5/D respectively and also proved FIR Ex.PW-5/B and endorsement on rukka as Ex.PW-5/C. PW-6 Vipin has stated that he is doing a business of Real Estate and on the day of incident he was coming back from Gurgaon and one Truck filled up with sand crossed him while driving at a fast speed and while driving as such overturned and he saw that one motorcyclist had come under the Truck. He tried to apprehend the driver but he managed to escape. PW-7 HC Satpal has proved photographs of place of accident as Ex.PW-7/A1 (1 to 24) and negatives thereof as Ex.PW-7/A2 collectively. PW-8 Ct. Sandeep was with the IO during the course of investigation, truck was sezied in his presence vide seizure memo Ex.PW-8/A, motorcycle was seized in his presence vide seizure memo Ex.PW-8/B PW-9 Adarsh Kumar is the owner of motorcycle bearing Regn. No. DL-4SAR-6133 and proved photographs of motorcycle as Ex.PW-9/A1 to A4. PW-10 Satish Kumar is the father of the deceased and identified the dead body vide statement Ex.PW-10/A and receipt of dead body as Ex.PW-3/B. PW-11 SI Lakh Ram is the 2nd IO of the present case and he recorded the statement of eye witness, gave notice U/s 133 MV Act to the owner of the Truck. Thereafter, the owner of the truck produced the driver, documents were seized by him, TIP proceedings were got conducted by him and he collected the PM report, obtained the photogrpahs from the crime team alongwith its FIR No:153/12 State Vs Deep Chand Saini Page 3 of 7 negatives. The photographs were exhibited as Ex.P-2. PW-12 SI Ram Pratap is the initial IO of the present case has deposed about the investigation carried out by him. PW-13 Madhu Ram is the labourer who was on the truck on the day of incident. He has also deposed that the truck was being driven by the accused and when they reached near Dwarka on the green light, the truck started moving but suddenly one car and motorcycle came from behind and tried to cross the truck as a result of which the driver applied the breaks and the truck overturned. He was declared hostile and he was duly cross examined by Ld. Addl. PP for State.
4. Statement of accused person u/s 313 Cr.PC was recorded on 03.08.2016 wherein he opted not to lead evidence in defence.
5. Ld. Counsel for the accused has argued that identity of the accused is not disputed, however, the rash and negligent act is disputed. He submitted that PW-6 is a planted witness and his testimony cannot be believed. He further submits that the other witnesses have turned hostile and their testimony is liable to be discarded.
6. On the other hand, Ld. Addl. PP for the State has argued that prosecution has been able to prove its case beyond reasonable doubt.
7. I have heard Ld. counsels for the parties and perused the record.
FIR No:153/12 State Vs Deep Chand Saini Page 4 of 78. The Hon'ble Supreme Court in Periyasami v/s State (2014) 6 SCC 59 has clearly held that, "testimony of the hostile witness can be relied upon to convict the accused if his evidence is relevant, material and corroborated. It has further observed that merely for reason that witnesses have turned hostile in their cross examination, testimony of hostile witness in examination in chief cannot be outrightly discarded, provided the same is corroborated".
9. In view of the above said judgment, it has to be seen whether in fact the testimony of PW-1 & PW-2 stands corroborated or not. The examination in chief of PW-1 and PW-2 was recorded on 16.12.2013, wherein they had identified the accused as the driver of the truck as well as deposed that the truck had overturned because the same was overloaded. In the cross examination, they have turned hostile and stated that the truck was being driven in a normal speed. No suggestion was given to PW-1 that the truck was not overloaded. Therefore, the testimony of PW- 1 with regard to overloading has gone unchallenged and uncorroborated. This portion of the testimony of PW-1 is corroborated by the photographs of the spot which clearly shows that the truck was over loaded as sufficient amount of dust is spilled on the road, particularly the photographs which are now marked as Mark X and Mark Y, which shows clearly the amount of dust.
FIR No:153/12 State Vs Deep Chand Saini Page 5 of 710. The identity of the accused is not disputed. In the present case, the identity is duly established as no suggestion was given disputing the identity of accused. The over loading of truck in itself shows the negligent conduct of the accused. The principle of res ipsa loquitur can be applied to the present case as the fact speaks for itself. The Hon'ble Supreme Court in Ravi Kapur Vs. State of Rajasthan 2012 (9) SCC 284 has held that "this principle is equally applicable to the cases of accident and not merely to the civil jurisprudence and can be applied to criminal cases provided the attending circumstances and basic facts are proved."
11. The mechanical inspection report Ex.PW-4/A of the Truck shows that break pipe, clutch and break pedal were freshly damaged, which shows that the breaks were applied suddenly as a result of which they got damaged and the truck overturned on the left side.
12. The truck overturned because it was overloaded otherwise the same would not have overturned, even if, the breaks were applied suddenly.
13. As per the site plan, the truck was being driven on the extreme right side of the road, heavy vehicles are supposed to be driven on the extreme left side of the road, which is not so in the present case. This itself proves the negligence of the driver. The victim was on the left side of the truck and despite wearing his helmet his head was FIR No:153/12 State Vs Deep Chand Saini Page 6 of 7 crushed as per the postmortem report.
14. The statement of Vipin i.e. PW-6 cannot be relied upon as it is a signed statement given to the IO during course of investigation, and thus, hit by Section 162 Cr.PC.
15. The prosecution, thus, has been able to prove its case beyond reasonable doubt.
16. Hence, accused Deep Chand Saini is, accordingly, convicted u/s 279/337/304-A IPC.
17. Copy of judgment be given free of cost to the convict.
18. Put up for order on sentence on 13.09.2016.
ANNOUNCED IN THE OPEN COURT on 29th day of August, 2016 (ANKUR JAIN) ADDL. CHIEF METROPOLITAN MAGISTRATE SOUTH WEST DISTRICT DWARKA COURTS : NEW DELHI 29.08.2016 FIR No:153/12 State Vs Deep Chand Saini Page 7 of 7