Delhi District Court
Sc No. 25/99, Fir No. 17/99 1 State vs Sanjeev Nanda Etc. on 2 September, 2008
SC No. 25/99, FIR No. 17/99 1 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
THE COURT OF SH. VINOD KUMAR
ADDITIONAL SESSIONS JUDGE, NEW DELHI
Sessions Case No. 25/99
FIR No. 17/99
PS Lodhi Colony
U/s 304/201 IPC
State Vs 1. Sanjeev Nanda
S/o Sh. Suresh Nanda
R/o D108 Defence Colony, New Delhi.
2. Manik Kapoor
S/o Sh. Sudhir Kapoor
R/o 7 Birbal Road Bijang Pura Extn.
New Delhi.
3. Bhola Nath
S/o Sh. Moti Lal
R/o 103, Sunder Nagar, New Delhi.
4. Shyam Singh Rana
S/o Sh. Nandan Singh Rana
R/o 50 Golf Link, New Delhi.
5. Rajeev Gupta
S/o Sh. Ved Parkash Gupta
R/o 50 Golf Link, New Delhi.
Date of institution : 24.4.1999
Date of concluding the final arguments : 26.8.2008
Date of judgement : 2.9.2008
JUDGEMENT
In the early hours of 10.1.99 one vehicle crashed into a few persons on the road and killed six of them. One surviver (i.e SC No. 25/99, FIR No. 17/99 2 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 PW2 Manoj Malik) states that the offending vehicle was a truck. Prosecution alleges, it was a BMW car. The prosecution alleges that the offending vehicle was being driven by accused Sanjeev Nanda. Defence vehemently denies it. Prosecution alleges it is an offence U/S 304 (1) IPC. Ld defence counsels argue that at the most it is a case of 304A IPC. One witness says that he saw the entire incident but defence asserts he was never there. Prosecution alleges that some of the accused persons washed the offending vehicle to destroy the evidence, whereas defence pleads false implications.
These are the main questions which require determination by this court but this trial poses greater questions as to what is the meaning of fair trial and how should the court proceed when the witnesses are being won over and the trial is being hijacked by the high and mighty. The trial saw many dramatic twists and turns and it is an eloquent witness to a common state of affairs in the criminal trials. Of course all the trials do not get the publicity as the present one. This is a case where it is needed that the entire criminal justice system should sit up to find effective ways and means to tackle a situation where wealthy and highly placed persons are able to thwart the entire course of justice and thereafter at the end, claim benefit of doubt as a matter of right.
This is a trial in which entire criminal justice system crumbled, though a hope for justice still remained because of the watchful eyes of vigilant fourth estate.
THE PROSECUTION CASE The prosecution alleges that one BMW car number M312LYP was purchased in the name of Ms Sonali Nanda and SC No. 25/99, FIR No. 17/99 3 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 the same had recently reached at the residence of its owner. The same was yet to be registered with the Transport Authorities in India. It is alleged that accused Sanjeev Nanda, the brother of Sonali Nanda drove this vehicle from her residence and attended a party at some friend's house where he got badly drunk. After attending this party, he drove back the car at about 4 am on 10.1.99. Accused Manik Kapur and one Sidharth Gupta (since discharged) were also sitting in the said car.
It is alleged that Manoj Malik (PW2) started from his house to leave his friends namely Nasir, Mehendi Hasan and his friend Gulab at Nizamudin railway station on foot. When they reached at about 4.30 am near petrol pump, Lodhi Road, three police officials namely constable Rajan (CRPF), constable Ramraj and constable Peru Lal both of Delhi Home Guard who were on checking duty stopped these persons and started checking them. In the meantime a BMW car having no. M312LYP being driven by accused Sanjeev Nanda came at an extremely high speed and hit the above stated seven persons. It is alleged that on being hit, those persons flew in the air and fell on the bonnet and the wind screen of the car and some of them rolled down and came under the bonnet of the car. The car took a right turn and hit the central verge. The persons who came under the car were dragged up to that point. Manoj who had fallen on the bonnet fell at some distance. The car stopped there and accused Sanjeev who was driving the vehicle came out from the car. It is alleged that accused Manik Kapur, who was travelling in the said car with accused Sanjeev Nanda told him to rush. Accused Sanjeev Nanda saw beneath the bonnet of the car. The injured persons were shouting and crying but ignoring the injured persons who had stuck under the bonnet of the car, accused Sanjeev Nanda drove away the car at a high speed towards Dayal Singh College.
SC No. 25/99, FIR No. 17/99 4 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
It is alleged that the persons who had been injured and the
persons, who had come underneath the car, were crying. Despite this fact accused Sanjeev Nanda drove away the car and in this process, the three persons who were entangled under the bonnet of the car were dragged, crushed and fell one by one on the road. It is alleged that accused Sanjeev Nanda parked this vehicle in the house of Sidharth Gupta ie 50, Golf Links and his father ie accused Rajeev Gupta with the help of his servants namely accused Shyam Singh and accused Bhola Nath washed the car and destroyed the material evidence.
Prosecution alleges that the PW1 Harishanker, an Attendant on the petrol pump saw the incident of black BMW car hitting the people. He immediately informed telephonically Sh. Brijesh Virmani (PW17) his employer/the Manager of Car Care Center, Lodhi Road, who in turn informed the PCR at no.100 who in turn flashed the message to concerned local police. The police station Lodhi Colony received this information and the same was recorded as DD no. 27A. Pursuant to this information, SI Kailash Chand reached at the spot. Till then a few PCR vans had already reached there. First of all, ASI Devender Singh (PW36) the Incharge of Eagle 11 PCR reached at the spot and took away injured Manoj Malik to the hospital. He also flashed the messages to other PCRs who reached there. The other PCR vans took the remaining injured or deceased persons to the hospital. Inspector Jagdish Pandey (PW13) the incharge of south district PCR Van also reached at the spot and flashed message to call SHO.
SI Kailash Chand (PW58) wrote a rukka in which he had described the scene of crime. As per this description he found three persons namely constable Ramraj, constable Rajan and one SC No. 25/99, FIR No. 17/99 5 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 more person dead and he came to know that four other injured persons have been taken away by the PCR in the hospital. SI Kailash Chand found one broken number plate and when it was assembled, it was found to be M312LYP and on it Park Lane and BMW was written. One black colour piece of Bumper and rear view mirror glass of a vehicle were found scattered up to 100125 feet. Head of one person was found crushed. There were skid marks of a vehicle on the spot. The body of one constable namely Ram Raj was found crushed and his right leg was found at a distance of 10 - 15 feet away. The belly of Ct. Rajan Kumar was also found burst and the blood was flowing on the road for quite some distance. All the three dead bodies were sent to AIIMS hospital by ambulance. Therefore, it was clear to SI Kailash Chand that the offending vehicle was a black colour BMW car having a number plate bearing no. M312LYP. Considering the scene of crime, he recommended registration of FIR U/S 338/304 IPC. The rukka was despatched to the police station where the FIR EXPW18/A was registered.
Prosecution alleges that when SI Jagdish Pandey (PW13) Incharge of the PCR reached at the spot, he found a trail of oil on the road starting from the place of offence. He followed the trail and reached 50 Golf Links. SHO Vimlesh Yadav also reached at the spot. The gate of this house was closed. When the police officials peeped through the side hinge of the gate, they found that accused Rajeev Gupta, Bhola Nath and Shyam Singh were washing a damaged black BMW car. The police got the gate opened. It is alleged that this car was not having a number plate and its broken bumper and lights appeared to be similar to the broken bumper and light pieces found at the spot near petrol pump. One park lane sticker was also affixed on this car. The blood was also noticed in the rear left side wheel of the car. On SC No. 25/99, FIR No. 17/99 6 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 query by the police, Rajeev Gupta told that the car belonged to Sanjeev Nanda who was a friend of his son Sidharth Gupta and that they had gone to Defence Colony at the residence of Sanjeev Nanda. SI Ulhas Giri was sent to the house of accused Sanjeev Nanda at Defence Colony and he brought accused Sanjeev Nanda, and Manik Kapur and Sidharth Gupta to 50 Golf Links. As soon as all the three accused persons reached at the spot, accused Sanjeev Nanda asked accused Rajeev Gupta '' Kya car Dhul Gai ?''. Police apprehended all the accused persons including Sidharth Gupta and sent them for their medical examination. It is alleged that at that time the Investigating Officer observed an injury on the lip of accused Sanjeev Nanda.
All the accused were medically examined. As per the MLC of accused Sanjeev Nanda, prepared by Dr. T. Milo of AIIMS Hospital, Sanjeev Nanda was brought to casualty of AIIMS by HC Nand Kishore with alleged history of consuming alcohol. The pupils of his eyes were bilaterally dilated. The speech of coherent and gait unsteady. Smell of alcohol was present. There was blood clot in left nostril. He complained pain in the nose and lips and following injuries were observed:
1. One lacerated wound in the upper lip .2 x .5 cm.
Size with swelling and blood clot.
2. One lacerated wound in the lower lip .1 x .6 cm.
With swelling and showing blood clot.
The blood sample of accused Sanjeev Nanda was taken by the doctor which was sent to FSL. On receiving this sample on SC No. 25/99, FIR No. 17/99 7 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 12.1.1999, doctor Madhulika Sharma (PW16), Senior Scientific Officer cum Chemical Examiner found on testing the same that the blood sample gave positive test for presence of 0.115 % weight/volume ethyle alcohol. Her report is Ex.PW16/A which is dated 15.1.99.
At about 10 am on 10.1.1999, police called Nagesh Kumar Wadera (PW29) a Finger Print Expert who lifted the Finger Prints from the various parts of the car at 50 Golf Links itself. The car was later on taken to the police station Lodhi Colony. On 11.1.99 Senior Scientific Officer D.S Chakoutra (PW31) was called at the police station and he inspected the car again. He lifted some blood lying on the steering of the vehicle. As per the report of Sh. D.S. Chakotra, this blood stain was of "B" group.
I may add here that the another blood sample of Sanjeev Nanda taken at AIIMS hospital was sent for chemical examination but no opinion could be given regarding the blood group because as per report Ex.PW31/E the blood was found putrefied. It is pertinent to note that this blood sample was received by FSL on 3.4.99 i.e. after about three months of the incident. Later on during trial, accused Sanjeev Nanda filed his own blood group report and as per this report , his blood group is B positive.
On 10.1.99 SI Kailash Chand prepared a site plan EXPW58/B. This site plan mentions the scene of crime in great details. On 23.3.99, on the instructions of SI Kailash Chand, rough notes of the spot were prepared by SI Madan Pal (PW19), a draftsman and on the basis of these rough notes, he prepared a scaled site plan Ex.PW19/A. SC No. 25/99, FIR No. 17/99 8 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 Mechanical inspection of the vehicle was got conducted and as per the mechanical inspection report Ex.PW14/B prepared by Devinder Singh, the steering oil was found finished in oil reserve. The report mentions the damage on the car in detail.
The postmortem of the dead bodies was got conducted.
On 11.1.99 the police produced accused Sanjeev Nanda and other accused persons before Sh. V. K. Sharma, Ld. Metropolitan Magistrate and sought two days police remand. On police remand, accused Sanjeev Nanda got recovered his woolen sweater and a jeans (both of which were blood stains) from his house D108, Defence Colony, New Delhi. It is alleged by the prosecution that accused Sanjeev Nanda was wearing these clothes at the time of the offence. Both these clothes were seized vide memo Ex.PW32/A. On 15.1.99, Sunil Kulkarni (examined as court witness) appeared as a witness of accident. The Test Identification Parade was arranged for 18.1.99 but accused Sanjeev Nanda refused to take part in the same. On 21.1.99, a statement of Sunil Kulkarni was recorded by Sh. Raj Kumar Chauhan, the then Ld. Metropolitan Magistrate under Section 164 CrPC.
After completion of investigation, charge sheet was filed.
THE CHARGE On these accusations, charges were framed on 3.8.99 against the accused persons. Charge under Section 201/34 IPC was framed against accused Sanjeev Nanda, Manik Kapur and SC No. 25/99, FIR No. 17/99 9 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 Sidharth Gupta for running away from the spot with intention to screen themselves from legal punishment.
Another charge under Section 201/34 IPC was framed against accused Rajeev Gupta, Shyam Singh Rana and Bhola Nath for causing certain evidence of the offence to disappear by washing the car to remove blood stains from it.
Another charge under Section 304(I)/308/35 IPC was framed against accused Sidharth Gupta. However he was discharged by Hon'ble High Court later on.
Another charge under Section 304(I)/308/34 IPC was framed against accused Sanjeev Nanda and Manik Kapur for causing the deaths of Rajan Kumar, Peru Lal, Ram Raj, Mehandi Hasan, Nasir and Gulab and for attempting to commit culpable homicide not amounting to murder of Manoj Malik.
All the accused persons pleaded not guilty and claimed trial.
PROSECUTION WITNESSES In order to prove its case prosecution examined as many as 61 witnesses.
PW1 Hari Shanker Yadav is an employee of Petrol Pump known as Car Care Center at Lodhi Road, New Delhi. He testified that one vehicle came at a fast speed from the side of Nizamuddin. In the accident some persons had fallen down, received injuries and also died. He testified that he was so frightened that he went inside the petrol pump. In respect of other details, the witness did not support the prosecution case.
PW2 Manoj Malik is the injured witness. In the
SC No. 25/99, FIR No. 17/99 10 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
month of January 1999 he was staying at CGO Complex, Lodhi Road and was working there at the Dhaba of Kailash Chand. He testified that he was going towards the Railway Station with his two friends. They were stopped by the police. He testified that they were standing in the center of the road and one truck hit them. Due to this reason the three police officials and two of his friends were killed and he himself was injured. In cross examination he testified that he was told by one member of Parliament in Orisa that he should go to Delhi and contact advocate Mr. Manoj and Ms Santosh Mishra. This witness did not support the prosecution case but in his cross examination by Sh. R. K. Anand, adv. for accused Sanjeev Nanda, he testified that after two or four minutes the truck stopped at a little distance.
PW3 Ct. Sunil Kumar was posted as constable at PS Lodhi Colony on 10.1.99. He had taken accused Sidharth Gupta to AIIMS for his medical examination and collected the medical papers from the hospital.
PW4 Ct. Vikram Singh took accused Shyam Singh Rana for his medical examination at AIIMS.
PW5 Ct. Banwari Lal was sent to AIIMS along with accused Bhola Nath for his medical examination.
PW6 Dr. S. K. Gupta conducted postmortem on the dead body of Mehandi Hasan S/o Abdul Jafar 20 years male. He found the abrasions and lacerated wounds and opined the cause of death to be an anti mortem head injury produced by blunt force.
PW7 Suresh had gone to the mortuary of AIIMS on 11.1.99, where he identified the dead body of his brother in law Peru Lal S/o Ghasi Ram.
PW8 Abdul Jabbar is the father of deceased Mehndi Hasan. He had gone to the mortuary of AIIMS on 17.1.99 to SC No. 25/99, FIR No. 17/99 11 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 identify the dead body of his son Mehendi Hasan.
PW9 Sunil was working as a mechanic at Dalip Motors Workshop at Mehar Chand Market, Lodhi Colony in January 1999. On the asking of the police, he opened the damaged head light of left side of BMW car. The same was seized by the police vide memo Ex.PW9/A. PW10 Dr. T. Milo medically examined Accused Manik Kapur. Report in this regard is Ex.PW10/A. He also examined accused Bhola Nath. Report in this regard is Ex.PW10/D. Dr. T Milo also examined accused Rajeev Gupta. Report is Ex.PW10/F. On 10.1.99 he had also examined accused Sanjeev Nanda vide MLC Ex.PW10/G. PW11 ASI Ram Avadh was on duty on PCR Van DL IV3582 on the night intervening 9/10.1.99. On 10.1.99 at about 4:15 am he received an information from Eagle 1 and he alongwith Inspector Jagdish Pandey reached in the Gypsy at the place of offence. He also accompanied Inspector Jagdish Pandey to 50, Golf Links.
PW12 Ct. Jamshed Ali had gone to house No. 50 Golf Links on 10.1.99 along with SI Bega Ram, HC Nand Kishore, Ct. Sunil Kumar, Ct. Vikram, Ct. Banwari and Ct. Inder Mal and assisted the investigation.
PW13 Inspector Jagdish Pandey was on duty from 8:00 pm to 8:00 AM as Checking Oficer, South Zone, PCR on Police Gypsy No. DL 1 V 3582 along with the staff ASI Ram Avadh, Ct. Gunman Sunder Pal and Ct. Driver Sham Singh reached at the spot. He followed an oil trail and reached at 50, Golf Link where he found accused Rajeev Gupta, Shyam Singh and Bhola Nath washing the BMW car.
PW14 Sh. Davinder Singh inspected the BMW car on 6.2.99 at Lodhi Colony, Police Station and after examination he gave his report Ex.PW14/B. SC No. 25/99, FIR No. 17/99 12 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 PW15 Sh. S. C. Gupta is the Director and Incharge Meteorological Office, Safdarjung Airport, New Delhi. He gave the weather report Ex.PW15/B of 10.1.99 at 5:30 am. He testified that SI Kailash Chand moved an application on 10.1.99 at about 4.50 p.m to give the weather report. As per his report, the visibility on 10.1.99 at 5.30 am was 1000 metres at Safdarjung Airport.
PW16 Dr. Madhulika Sharm is Senior Scientific Officer cum Ex officio Chemical Examiner, FSL Malviya Nagar, New Delhi. She proved her report Ex.PW16/A. As per this report, the blood sample of Sanjeev Nanda gave positive test for ethyl alchohol and was found to contain 0.115 % weight/volume.
PW17 Sh. Brijesh Virmani is the Manager of Car Care Center, Petrol Pump, Lodhi Road. On 10.1.99 at about 4.40 am, he received a telephonic call from Harishanker, the telephone attendant who informed that some serious accident has taken place in front of the Petrol Pump. This witness informed the Police Control Room at telephone No. 100.
PW18 HC Surat Singh was posted at PS Lodhi Colony as Duty Officer from 12 mid night to 8:00 am in the morning of 10.1.99. On receipt of rukka at 7.20 am , he recorded FIRNo. 17/99 EXPW18/A. PW19 SI Madan Pal is the Draughtsman. On 23.3.99 on the instructions of SI Kailash Chand he visited the place of incident. He made rough notes at the spot and then on 24.3.99 he prepared scaled site plan Ex.PW19/A at the place of incident.
PW20 Rajesh Kumar is the Director of M/s R. U. Import Export Private Ltd. He handed over to SI Kailash all the relvant documents of the BMW car on 14.1.99. The documents, which were handed over to the police, were regarding the custom clearance of the BMW Car. He testified that BMW car No. M312 LYP was cleared in the name of Sonali Nanda, R/o 4, Prithviraj SC No. 25/99, FIR No. 17/99 13 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 Road, New Delhi.
PW21 SI R. D. Pandey took a pulanda and a sample seal of CMO AIIMS on 12.1.99 and deposited the same at FSL Malviya Nagar vide RC No. 203/21.
PW22 Ct. Prithvi Raj was deputed to guard the dead body of Mehendi Hassan at Mortuary AIIMS Hospital from 16.1.99 to 17.1.99. He also received the blood samples of the deceased from the hospital and the clothes of the deceased which were taken in possession by Head Constable Vijay Pal vide memo EXPW22/B. PW23 Ct. Inder Mal along with SI Mega Ram had taken the accused Rajeev Gupta for medical examination on 10.1.99.
PW24 Ct. Manohar Lal was on duty on PCR Van which took injured Manoj to Hospital.
PW25 Bajinder Singh was working as a Security Guard in Group Force Company in the month of January 1999. On 9.1.99 he was on duty as Security Guard at Kothi No 4, Prithviraj Road. He brought a register maintained at the said residence for entry and exit of the cars. He testified that as per this register, the BMW Car No. M312 LYP was taken out from the Kothi at 18.55 hours by one 'Baba'. He did not support the prosecution case that accused Sanjeev Nanda is also called Baba.
PW26 Sh. Ram Deva identified the dead body of one Peru Lal S/o Ghasi Ram.
PW27 Rajinder Singh identified the dead body of his nephew Ram Raj S/o Rajpal.
PW28 Rajinder Keshav carried out the inspection of the car registration no. M 3 12 LYP and gave report in this regard Ex.PW28/A. This witness found that steering and brakes of the car were OK.
SC No. 25/99, FIR No. 17/99 14 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
PW29 Sh. Nagesh Kumar Wadera was posted as a Finger Print Expert in Southern Wing Crime Team, R. K. Puram on 10.1.99. He noticed and developed 18 chance prints with the help of gray developing powder and prepared report Ex.PW29/A to this effect.
PW30 HC Rajpal had gone to mortuary on 11.1.99 of AIIMS along with HC Vijay Pal on the instruction of I.O. He is a witness to handing over the dead bodies to their relatives.
PW31 Mr. D. S. Chakoutra inspected a BMW car on 11.1.99 in the police station. He lifted blood stains from the steering of the car. On examination, this blood was found to be of B group. However, its Rh factor could not be identified.
PW32 HC Jagbir Singh on 11.1.99 along with Kailash Chand SI, SI Ulhas Giri and accused Sanjeev Nanda visited the house D108, Defence Colony, New Delhi and he is a witness to the recovery of blood stained Jeans and Jersey/Sweater of accused Sanjeev Nanda from house No D108, Defence Colony.
PW33 SI Bega Ram along with Ct. Nand Kishore, Ct. Sunil, Ct. Vikram, Ct. Inder Mal, Ct. Jamshed, Ct. Banwari got medically examined accused Sanjeev Nanda, Sidharth, Manik, Sham Singh, Bhola Nath and Rajeev Gupta in AIIMS Hospital.
PW34 Ct. Sadhi Ram was a gun man on PCR vehicle no. Eagle 11 on 11.1.99. ASI Davinder was the incharge of that PCR Gypsy and driver Ct. Manohar lal was also with him. They reached at the place of offence and picked up injured Manoj to hospital.
PW35 Surinder had identified the dead body of his elder brother Ram Raj on 11.1.99 in the mortuary of AIIMS.
PW36 ASI Davinder Singh along with HC Sadhi Ram, Gunman and the driver Manohar Lal were on the patrolling duty in East Nizamuddin Area in the PCR Gypsy. He reached the spot on receiving a wireless message about an accident and took away SC No. 25/99, FIR No. 17/99 15 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 the injured Manoj to AIIMS hospital.
PW37 Ct. Jagan Lal on receiving of DD No. 27A he along with Kailash Chand SI reached in front of petrol Pump Car Care Center at Lodhi Road. He also took the rukka prepared by SI Kailash Chand to police station and after getting the FIR registered, came back to the spot.
PW38 C SI Vidya Nand was on duty on a PCR Vehicle, No. 14 and on receiving a message from Control Room about one accident at Lodhi Road in front of Car Care Center Petrol Pump, he reached at the spot and took one injured Mehendi Hasan to hospital in PCR Van. This injured later on expired in the hospital.
PW39 ASI Sawai Lal along with Ct. Amar Singh and Ct. Rakesh Kumar driver on 9/10.1.99 were on patrolling duty in PCR vehicle Eagle 13. On receiving the message at 4:53 AM about some accident in front of Car Care Center petrol Pump, Lodhi Road, he reached at the spot.
PW40 HC Nand Kishore was posted as Head Constable on 10.1.99 at PS Lodhi Colony. At about 5.15 am he reached in front of Car Care Centre Petrol Pump. He found that one of the dead bodies was of constable Rambhaj, another dead body was of CRPF constable Rajan. He is a witness to various memos prepared by SI Kailash at the spot. He also reached at 50, Golf Links and found that the car had been recently washed.
PW41 Ct. Girish Kumar was posted at AIIMS on 10.1.99 as Duty Constable. He handed over the blood sample of Sanjeev Nanda and sample seal to SI Bega Ram who seized the same vide memo Ex.PW41/A. PW42 Ms Alka was working as a Receptionist in Hotel Shiva Continental in which witness Sunil Kulkarni was alloted a Room No. 102 on 8.1.99. She proved a received of advance of Rs 1000/ paid by Sunil Kulkarni as EXPW42/A . She testified SC No. 25/99, FIR No. 17/99 16 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 that as per the record/register EXPW42/B maintained by them, Sunil Kulkarni left the hotel at 12.30 pm on 9.1.99.
PW43 ASI Dhian Singh was on duty on a PCR Van, Victor 22 at the time of offence and he along with his staff reached at the spot in the PCR Van. He removed one of the injured whose name was revealed as Peru Lal to AIIMS.
PW44 HC Vijaypal Singh is the Malkhana Mohrar. PW45 Ct. Darhinder was posted as Duty Constable at AIIMS on 9/10.1.99.
PW46 F. C. Chauhan DSP identified the dead body of Ct. Rajan Kumar and signed the documents which is Ex.PW46/A. PW47 SI Sada Vriksh Yadav got the postmortem done on 11.1.99 in respect of dead body of Peru Lal,Gulab, Rajan, Ram Raj , Nasir and Mehendi Hasan.
PW48 Sh. Mohd. Samsher identified the dead body of Mohd. Nasir in mortuary of AIIMS.
PW49 Dr. Sunil Kumar conducted the postmortem on 11.1.99 on Mohd. Nasir 30 years male.
PW50 Meer Shamsher identified the dead body of his nephew Nasir Mohd and Mohd Gulab.
PW51 Om Bir Singh was on duty at PCR vehicle No. Eagle 16. He picked up Nasir S/o Abdul Shakur, who was in injured condition and took him to AIIMS hospital and got him admitted vide MLC No. 2482/99 through constable on duty.
PW52 Sh. A. K. Jain is the Development Officer/AAO, National Insurance Co. Ltd. 34, Kapashera, New Delhi. He testified that he had insured the BMW car in question.
PW53 Bannu Singh is a Sub Inspector in 86th Battalion of CRPF. He testified that their soldiers ( Sipahi) used to be deputed in various police stations for duty and constable Rajan Kumar was posted in Lodhi Colony near Care Car Centre SC No. 25/99, FIR No. 17/99 17 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 on the said date. He identified the dead body of Ct. Rajan Kumar.
PW54 Kirti Ram Unyal brought the summoned record including MLC No. 2740 EXPX of Rajeev Gupta from AIIMS Hospital.
PW55 Inspector Vimlesh Yadav was posted as SHO PS Lodhi Colony on 9.10.99. She reached at the spot alongwith SI Kailash Chand and constable Jagan Lal. She received a wire less message from Inspector Jagdish Pandey who reached 50, Golf Links. She noticed that the car was being washed. She got the gate of the house opened and found the damaged BMW car. She directed SI Kailash Chand to proceed with the investigation and directed SI Ulhas Giri to reach D108, Defence Colony where accused Sanjeev Nanda, Manik Kapur and Sidharth Gupta had gone. She also called the photographer and the Crime Team and sent all the accused persons for medical examination. The vehicle was seized and sent to police station . On 15.1.99, Sunil Kulkarni appeared as witness of accident. She testfied that TIP was got arranged but accused Sanjeev Nanda refused to take part in TIP proceedings. The statement U/.S 164 CrPC of witness Sunil Kulkarni was also got recorded.
PW56 Sh. R. K. Chauhan was working as Metropolitan Magistrate on 21.1.99, New Delhi. Sh. R. K. Chauhan, Ld. Metropolitan Magistrate had recorded the statement U/S 164 CrPC of witness Sunil Laxman Kulkarni. The same is Ex.PW56/B. PW57 Ms Renu Bhatnagar was posted as Metropolitan Magistrate on 16.1.99 in Patiala House Courts. On 18.1.99 she reached Tihar Jail at about 2:25 pm for conducting the TIP of accused Sanjeev Nanda. Accused had refused to join the TIP.
PW58 SI Kailash Chand is the initial Investigating SC No. 25/99, FIR No. 17/99 18 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 Officer.He prepared the rukka , got FIR registered and collected the material evidence from the spot.
PW59 Ct. Ramavtar was posted as photographer on 10.1.99 in South Distt. DCP Office. On that day on receipt of the information he took the photographs of the scene of occurrence from different angles. Negatives of which are Ex.PW59/1 to 59/18. He had also prepared a video film at the spot. The video film covers the area from the place of accident to 50 Golf Links where the accident car was found parked. The video film is Ex.PW59/19. During trial, the video was converted into the C.Dwhich are part of judicial file.
PW60 Ulas Giri is the second Investigating Officer. Apart from other investigation, he also effected recovery of the clothes of Sanjeev Nanda at his instance.
PW61 Dr. Prashant Kulshreshtha is Senior Resident, Forensic Medicines, AIIMS, New Delhi. On 11.1.99 he performed autopsy on body of deceased Rajan Kumar, Peeru Lal and Ram Raj on the request of IO Sada Briksh PS Lodhi Colony.
Prosecution witness Sunil Kulkarni was given up by the prosecution. However, he was summoned by me U/S 311 CrPC and he was examined as a court witness on 17.5.2007, 29.5.2007, 11.7.07 and 19.7.07.
STATEMENTS UNDER SECTION 313 CRPC OF ACCUSED PERSONS After completion of prosecution evidence, statements of accused persons under Section 313 CrPC were recorded. All the accused persons except accused Manik Kapur preferred to lead evidence in their defence.
SC No. 25/99, FIR No. 17/99 19 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
DEFENCE WITNESSES
In his defence evidence accused Sanjeev Nanda examined the following witnesses in his support:
DW1 Mrs Sumitra Nand is grand mother of accused Sanjeev Nanda. She testified that she resides at House No. B 104, Defence Colony with her husband Admiral Nanda at B104 Defence Colony. Her son Suresh Nanda used to live abroad at that time but he had a house at 4, Prithviraj Road, where his daughter Sonali Nanda used to live alone and whenever Suresh Nanda used to come to India, he would stay at 4, Prithviraj Road. She testified that Smt Renu Nanda, the wife of Suresh Nanda, used to live separately with her son ie accused Sanjeev Nanda at D108, Defence Colony. She testified that Renu Nanda and Suresh Nanda used to live separately as their was separation between them. Sanjeev Nanda was studying abroad but whenever he came to India, he stayed with her mother. She testified that at about 7.30 or 8 am on 10.1.99 Renu Nanda called her and her husband to their house as police had visited her house. She testified that after she and her husband reached D 108 Defence Colony, she found that police was asking Sanjeev Nanda to accompany them. Sanjeev resisted and police officials gave two three blows on his face due to which blood oozed out from his lips.
DW2 Amit Kilambkar is cameraman India TV, 202 203349 Business Point, Western Express Highway, Second Floor, Andheri East, Mumbai. He recorded the interview of one Gauri Shanker Tiwari on Sony PD170. In this interview, Gauri Shanker Tiwari called Sunil Kulkarni a Cheat and also stated that on the day of offence, Sunil Kulkarni was in Mumbai. However, Gaurishanker Tiwari was not examined by defence.
DW3 Sayedain Zaidi is a Chief of Bureau (Mumbai) SC No. 25/99, FIR No. 17/99 20 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 India TV. He interviewed Gauri Shanker Tiwari at his office or in his studio in Mumbai.
DW4 Sh. V. N. Sehgal is a retired Director of CFSL, CBI with a lot of experience. He testified on various aspects of blood testing. He testified about the effect of the alchohol upon a person. He also gave his opinion on the rate of elimination of ethenol from the blood.
Accused Rajeev Gupta, Shyam Singh and Bhola Nath examined following witnesses in their defence:
DW5 Gaurav Karan is the friend of Sh. Sidharth Gupta (the son of accused Rajeev Gupta). He deposed that on the morning of 10th January 1999, his friend Sidharth Gupta telephoned him at about 7:30 - 8:00 in the morning that there was an accident and requested him to reach at his house . He testified that when he reached at that house, he found Sudhir Sareen, the father in law of Sidharth Gupta at their house and police took him to police station. He testified that Mr Rajeev Gupta was not there at that point of time and he came to know that he is sleeping. DW5 went up to the room of Rajeev Gupta and knocked the door. Rajeev Gupta and his wife opened the door at about 9 am and then he told them about the accident. In cross examination, he admitted that he was son of an Ex Commissioner of Police.
DW6 Himalyani Gupta is the friend and lawyer of accused Rajeev Gupta. She deposed that on 10th January 1999 Rajeev Gupta gave her a call at around 10:00 am and was asking her if I could come to Lodhi Colony police station as he was proceeding towards the police station. She testified that she was a lawyer and a family friend of Rajeev Gupta. Therefore, she reached at the police station at about 10.45 am.
DW7 Karan Singh is the Chokidar of accused Rajeev Gupta. He deposed that on the date of the incident he was SC No. 25/99, FIR No. 17/99 21 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 working as Chokidar at B16, Greater Kailash, the residence of Rajeev Gupta in 1999, Rajeev Gupta alongwith his wife and Sidharth Gupta had shifted to 50, Golf Links but full family had not shifted as Shrawan, the elder son of Rajeev Gupta had not shifted from Greater Kailash. On 10.1.99, at about 8 am, he received a telephonic call from a servant of Rajeev Gupta that the Chowkidar at 50, Golf Links had been taken away by the police. Therefore, DW7 reached at 50, Golf Links. He testified that he saw Rajeev Gupta and his wife at 1010.15 am and at that time Rajeev Gupta was inside his house. He also testified that there was no arrangement for washing the cars in the Drive Way.
DW8 Dr. Deepak Bawa is the family physician of accused Rajeev Gupta. He testified that Rajeev Gupta suffers from Diabetes and high Blood Pressure. He testified that Rajeev Gupta plays cards everyday till late night and wakes up fairly late. On his medical advice, Rajeev Gupta also takes sleeping pills five to six times in a month.
DW9 Sudhir Sareen testified that his daughter Parul was engaged with Sidharth Gupta on 8.1.99 and there was a Dinner at his residence in the night intervening 9/1011999. In the said dinner, Sidharth Gupta, Rajeev Gupta and his wife were also present. He testified that Sidharth Gupta and Parul left to attend an Engagement Ceremony of their common friend. The dinner at their residence was over by 2.30 am on 10.1.99. Sidharth Gupta and Parul returned at 4 am. At 7 am Sidharth left their house. Witness testified that he received a telephonic call from Sidharth Gupta that car of Sanjeev Nanda was parked his house and PCR Van was also parked outside his house. The witness testified that he reached at 50, Golf Links in his car at about 8 'O' clock. SHO Lodhi Colony asked him to get the gate opened. This witness took the police to the Drawing Room and found Sidharth Gupta and Manik Kapur there. She made SC No. 25/99, FIR No. 17/99 22 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 inquiries from Sidharth Gupta and Manik Kapur as to whose car it was ? Witness testified that SHO arrested him for destruction of evidence presuming that he was Rajeev Gupta and took him, Sidharth Gupta and Manik Kapur to police station Lodhi Colony. He also testified that there was no washing of the car. From police station, he telephonically called his friends including Ms Himi Gupta, advocate who reached there in about 45 minutes. Police then let this witness go and Himi Gupta advocate told him that police officers had mistaken him as Rajeev Gupta. He testified that when he reached 50, Golf Links, Rajeev Gupta was sleeping upstairs in the room. This witness also testified that the Rajeev Gupta normally wakes up at 10 am everyday.
Accused Manik Kapur did not prefer to lead evidence in defence.
A COURT WITNESS NAMELY SUNIL KULKARNI In the present case, one witness Sunil Kulkarni had been dropped by the prosecution. He was summoned as a court witness by this court later on. The defence is strongly assailing his credibility and at one stage the prosecution had almost condemned him. Ld defence counsel has drawn my attention to an Ordersheet dt. 10.10.07 wherein I had written that some evidence has come in deposition of witness Sunil Kulkarni and prior to it there was no evidence against Sanjeev Nanda. Ld defence counsels have argued that witness Sunil Kulkarni is unreliable witness and except his evidence, this court itself had admitted that there was no evidence against accused Sanjeev Nanda. I make it clear that it was only a prima facie opinion and the said ordersheet should be read that earlier there was no direct evidence against accused Sanjeev Nanda.
SC No. 25/99, FIR No. 17/99 23 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
Since the witness Sunil Kulkarni has been put to
vehement attack by the defence, let me appreciate the totality of the evidence by excluding the testimony of Sunil Kulkarni and to see as to whether the prosecution is able to prove its case beyond reasonable doubt if we exclude the testimony of Sunil Kulkarni.
I take each issue one by one .
WHETHER THE OFFENDING VEHICLE WAS A TRUCK OR BMW CAR BEARING NUMBER M312LYP?
Although during the entire trial the accused appeared to be denying that accident took place with the BMW car number M312LYP. However, at the stage of final arguments, Ld defence counsels fairly admitted that in views of overwhelming evidence, they would not be able to deny that black coloured BMW Car M312LYP was involved in this offence. Therefore, I am not inclined to discuss this evidence in detail. As per the testimony of SI Kailash Chand, there were broken pieces of number plate of a vehicle which were assembled and it was found to be a number plate having registration No. M312LYP. One rear view glass was found lying at the spot . One trail of oil starting from the point of offence till 50 Golf Links was found by Inspector Jagdish Pandey and police reached 50 Golf Links by following this trail. Mechanical Inspection EXPW14/B of this BMW car shows that the oil reserve of the vehicle was empty. Rear view mirror and the front number plate of the car was missing. Bonnet and the front wind screen of the car was also damaged. Therefore, it stands proved beyond reasonable doubt that the offending vehicle was this BMW car and not the truck as testified by PW2 Manoj Malik.
SC No. 25/99, FIR No. 17/99 24 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
WHO WAS DRIVING THE BMW CAR?
Ld defence counsels argue that there is no evidence on record to show that this car was driven by accused Sanjeev Nanda. It is argued that even Sunil Kulkarni does not state that accused Sanjeev Nanda was driving this car.
I have already stated that the testimony of Sunil Kulkarni would be discussed later on because presently, I am discussing as to whether the entire evidence on record sans the testimony of Sunil Kulkarni proves the prosecution case or not. It is not in dispute that this BMW car belongs to Sonali Nanda who is real sister of accused Sanjeev Nanda. It is not in dispute that Sonali Nanda and her father Suresh Nanda only reside in their house at 4, Prithviraj Road, whereas accused Sanjeev Nanda resides with her mother in another house ie D 108, Defence Colony. As per the testimony of DW 1 Sumitra Nanda who is grandmother of accused Sanjeev Nanda, his father Suresh Nanda was abroad. Even as per prosecution case, Suresh Nanda returned to India on 11.1.99. Therefore, there were no other family members in the house of Sonali Nanda except herself in the night intervening 9.1.99 and 10.1.99. A Notice was issued by Investigating Officer to state as to who was driving the vehicle on the said date. It is pertinent to note that she did not answer to this notice. Sonali Nanda lives in India itself and she could have been examined by accused Sanjeev Nanda to prove that either this vehicle was being driven by herself or by some other person which was in her exclusive knowledge. Non examination of Sonali Nanda who could have proved as to who was driving the vehicle on the said date is a very strong circumstance against accused Sanjeev Nanda. It is pertinent to note that BMW car is SC No. 25/99, FIR No. 17/99 25 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 very expensive vehicle. There is no allegation that this vehicle had been stolen on the night of 9.1.1999. It is very strange that even the chowkidar/security guard who produced the register did not state as to who had driven away the said car. I may point out that perusal of the entire file would show that prosecution did not examine a few material witnesses for example the particular security guard who made entry that one Baba had taken away this car. Was it deliberate? Accused has not produced any defence evidence as to which person among his family is called as Baba. I am of the opinion that all the circumstances clearly point out towards only one direction. The prosecution alleges that due to impact of the accident, one lip of accused Sanjeev Nanda got some injury and blood of it fell on the steering of BMW Car. This blood was found to be of B group. Accused Sanjeev Nanda is also of B positive group. His blood from lip was also found of his jersey recovered by the police. Even as per the defence version, this injury was recent. The presence of fresh injury on the lip of accused Sanjeev Nanda, finding of blood on the steering of B group and finding of blood on the jersey of accused Sanjeev Nanda leaves me in no doubt that this is accused Sanjeev Nanda himself who was driving the offending vehicle at the time of the offence and he received the injury due to the impact of the car hitting the persons standing on the road. Ld defence counsels have vehemently argued that B group does not mean anything and it could be B negative also. The possibility cannot be ruled out that RH factor of the blood lifted from the steering could be negative whereas the blood of accused Sanjeev Nanda is B Positive. Though, there is some substance in the arguments of Ld defence counsels but it must not be forgotten that the court has to see the cumulative effects of all the circumstances. In the present case it cannot be said that the blood lifted from the spot does not belong to accused SC No. 25/99, FIR No. 17/99 26 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 Sanjeev Nanda Presence of injury on his lip and presence of blood on her jersey recovered at his instance soon after the offence leads to irresistible conclusion that this injury has been received while accused Sanjeev Nanda was driving the offending car at the time of the offence. Ld defence counsels have argued that accused has given a suggestion that SI Ulhas Giri had hit him on his lip. Ld defence counsels have also drawn my attention to the testimony of DW1 Sumita Nanda that the police officials had given two or three blows on the mouth of accused Sanjeev Nanda, due to which blood oozed out from his lips. I have perused the suggestions and the testimony of DW1. I am of the opinion that explanation of the accused and testimony of DW1 on this point is unworthy of credence. As per the testimony of SI Ulhas Giri, Admiral S. M. Nanda was very much present at D108, Defence Colony when he reached there. It is a known fact that Admiral S. M. Nanda had been a top Naval Officer. As per the testimony of DW1, Admiral S. M. Nanda followed the police when the police took Sanjeev Nanda etc. In such a situation Admiral S. M. Nanda would have naturally raised an objection about the behaviour police. There is no evidence on record nor it is the case of accused Sanjeev Nanda that his grand father raised any objection to the assault by the police officers nor it is the case of defence that Admiral S. M. Nanda had filed any complaint against the police officials to their superior officers. It must be kept in mind that Admiral S. M. Nanda is not an ordinary citizen. He is a highly respected persons who had served the nation in his own times. He could not have tolerated infraction of law by a small officer of law enforcing agency. I have carefully perused the MLC of Sanjeev Nanda. Here also Sanjeev Nanda had not stated anywhere to the doctor that police had assaulted him. Had he done so, the doctor would have recorded it. Otherwise also, I do not find any reason as to why the police official would SC No. 25/99, FIR No. 17/99 27 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 beat up accused Sanjeev Nanda.
In the present case, the videography of the vehicle was done starting from the place of offence up to 50, Golf Links. Ld. defence counsels argue that in the video, the finger print Proficient is shown rubbing the powder on the steering of the car with the help of a brush and no blood stain is visible on it. It is argued that due to this reason the prosecution case becomes highly doubtful.. Ld Special Public Prosecutor on the other hand submits that the quantity of blood on the steering was very small. Further, the powder was rubbed on the steering very gently to lift finger prints. This powder will not change the character of the blood. It is argued by Ld. Prosecutor that after five hours, this small quantity of blood might have dried up and therefore there is no chance that by rubbing with brush the blood might have been rubbed off.
I have carefully gone through the videographed reel which has been converted into CD by the court order. Even the Finger Print Expert is seen putting the powder on the steering in extremely gentle manner with the help of a brush to pick up the finger prints. The backside of the steering is not visible in this videography/CD. Therefore, it cannot be said that each and every portion of the steering is visible. Furthermore even on the front side of the steering the inner portions of it, there is not sufficient light and therefore it is not possible to say that blood might not be present there. No suggestion has been put to him regarding the presence of the blood on the steering. In such circumstances this court has no reason to disbelieve D.S Chakotra (PW31) that he had picked up blood stain from the steering of the vehicle.
SC No. 25/99, FIR No. 17/99 28 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
It is pertinent to note that police came to know about the name and address of accused Sanjeev Nanda from accused Rajeev Gupta. When police reached at 50 Golf Links and inquired from accused Rajeev Gupta. He told that the vehicle belongs to accused Sanjeev Nanda and his son had taken him to his residence from here. It is pertinent to note that on this clue received from Rajeev Gupta, police reached the house of accused Sanjeev Nanda. The BMW car was not registered in India and there was no manner in which the police could have known that it was being driven by accused Sanjeev Nanda not police could have known the address where Sanjeev Nanda would be found. Though the statement of Rajeev Gupta stating the name and address of Sanjeev Nanda might not be admissible but the question is how police came to know his name and address. The prosecution case that police came to know about it from Rajeev Gupta himself cannot be doubted and to my mind the police investigation in this regard is not only correct but is also believable. The assurance of correctness of investigation as to how the police reached upto accused Sanjeev Nanda is another circumstance which connects accused Sanjeev Nanda as the driver of the offending vehicle.
It is argued by Ld defence counsels that this statement of Rajeev Gupta is not admissible in evidence because he was only a witness and therefore this statement is hit by Section 162 CrPC and since he was not in police custody, his statement cannot be treated as a disclosure statement under Section 27 of Indian Evidence Act. I disagree with the submissions of Ld. Defence Counsels. Even if an accused is not formally taken in custody, he still would be in custody of the police, if he has been detained by the police. In the present case the police had already seen accused Rajeev Gupta committing the offence of disappearance of SC No. 25/99, FIR No. 17/99 29 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 evidence. Therefore as soon as gate was opened and Rajeev Gupta was questioned, Rajeev Gupta would be deemed to be in the custody of the police. I refer to AIR 1940 Lah 129, AIR 1948 All 7(9) wherein it was held that the word "custody" does not only mean custody after formal arrest but also includes such state of affairs in which accused can be said to have come into the hands of police officer or can be said to have been under some sort of surveillance or restriction.
Now the question is whether disclosure of name of accused Sanjeev Nanda by accused Rajeev Gupta is a discovery of a fact or not. By now it is well settled that simple discovery of name of accused and his address would not be sufficient to draw a particular situation within the ambit of Section 27 of Indian Evidence Act. But if one accused discloses the name of another accused and such another accused gets some material object recovered, in that circumstance the disclosure by the first accused would not only be relevant under Section 27 of Indian Evidence Act but also shall form a piece of proved circumstance. I refer to 1969(2) Supreme Court Cases 872 in support of my above opinion. In the present case also name and address of accused Sanjeev Nanda was disclosed by accused Rajeev Gupta. After the arrest of accused Sanjeev Nanda, he got recovered his jeans and jersey from his own house. Therefore to my mind all the ingredients of Section 27 of Indian Evidence Act stand proved.
I have also mentioned earlier this court is examining whether the police investigation in reaching up to Sanjeev Nanda is correct or not. It is the police never knew as to whom this vehicle belonged. The first clue came from accused Rajeev Gupta and getting information from him. They caught accused Sanjeev Nanda from his house. There is no reason to disbelieve that SC No. 25/99, FIR No. 17/99 30 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 name of accused Sanjeev Nanda and his address should have come to the knowledge of police from some other source. Therefore, the police investigation in reaching up to accused Sanjeev Nanda is not only correct but this has corroborative value to the prosecution case that the vehicle was driven by none other person than accused Sanjeev Nanda. I make it clear that entire evidence in this case has to be appreciated in the backdrop of the circumstances that accused persons have indulged in winning over the witnesses to such an extent that even the victim of this offence is testifying that offending vehicle was a truck. I am reminded of the word wisdom of our own supreme Court in AIR 1973 Supreme Court 2407 wherein it was observed in para 23 of the judgement as under :
"A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and animus of SC No. 25/99, FIR No. 17/99 31 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 witnesses. Every case in the final analysis would have to depend upon its own facts.
Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is exfacie trustworthy on grounds which are fanciful or in the nature of conjectures."
Summing up all the circumstances mentioned above as I am left in no doubt that it was accused Sanjeev Nanda who himself was driving the vehicle at the time of the offence.
WHAT OFFENCE IS DISCLOSED ?
The main stress of the final arguments had been as to whether this offence is an offence U/S 304A or 304 IPC. Sh Prem Kumar, advocate addressed the arguments in a very scholarly manner and submitted that the accidents of even graver nature have been opined to be covered U/S 304A IPC and not U/S 304 IPC by Supreme Court of India. Ld defence counsels have cited numerous authorities in their favour, which I discuss later on one by one.
On the other hand, Ld APP has drawn my attention to recent judgements dated 6.9.2007 in The State of Maharashtra Vs Alister Anthony Pareira Criminal Appeal No. 430 of 2007, Criminal Appeal No. 566 of 2007 and Criminal Appeal No. 475 of 2007 case where the Bombay High Court convicted a SC No. 25/99, FIR No. 17/99 32 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 drunk driver of a car U/S 304 IPC which crushed seven persons on the foot path in the night.
I have already stated that presently I am considering this evidence excluding the testimony of Sunil Kulkarni.
I have perused Pareira's case of Bombay High Court and I am of the opinion that it is a treatise on the question as to what constitutes knowledge. In fact, each and every sentence of that Judgment requires to be quoted here but I refrain from it for the sake of brevity.
First of all, let me quote Section 304A IPC. 304A. Causing death by negligence - Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
The bare perusal of this Section would show that first of all, the court should determine as to whether offence is culpable homicide. If answer is "yes", Section 304A would have to be expelled. If answer is no, then the court should see whether the offence is covered u/s 304A IPC or was it a pure accident.
If it is purely an accident covered under Section 80 IPC, the court would have no option but to acquit the doer of the act, howsoever grave the consequences may be. Section 80 IPC deals with accidents or misfortune and exempts such acts from penal liability, if done by lawful means and with proper care and caution. The facts of the case would clearly show that there was no proper care and caution observed by the accused while driving SC No. 25/99, FIR No. 17/99 33 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 the said vehicle and therefore Section 80 IPC would come to his rescue.
There had been a misconception that causing of death by a motor vehicle would simply draw the criminal liability under Section 304A IPC.
In (1976) 1 SCC 889, the Supreme Court of India has indicated that such offences may fall under Section 304A, Section 299 as well as Section 300 of IPC. The observations of the Supreme Court are of great importance to the present case also. I reproduce the relevant paragraph no.4 of this judgement as under :
Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 IPC of murder under Section
300 IPC. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some persons, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Each case will, therefore, depend upon the particular facts established against the accused.
SC No. 25/99, FIR No. 17/99 34 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
Ld. Defence Counsel has pointed out the word "wilfully" and submits that it means "intentional". I disagree with the submissions of Ld. Defence Counsel. The word "wilfully" used in the above said judgement does not have any legal equivalent. Therefore its meaning can range from "wishful" to "intentional". THE NEW SHORTER OXFORD ENGLISH DICTIONARY may be referred in this regard. If a vehicle is being driven "intentionally" to kill someone, the act would amount to murder even if there is no person at the place of offence except the victim. Therefore the word "wilfully" must mean "wishfully" which would be a equivalent term for "recklessness". Therefore the inference of the above quoted part of judgement is that if a person with a great degree of recklessness drives a motor vehicle into the midst of a crowd, the offence would fall either under third part of Section 299 IPC or under Section 300(4) IPC.
I may point out that the illustration given by the Supreme Court in the above stated judgement is equivalent to an illustration (d) to Section 300 of IPC, which reproduce as under:
"A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual."
It must be kept in mind that Section 300 of IPC defines "murder" in four ways and there are four corresponding illustrations answering each situation. The illustration (d) quoted above answers the fourth situation in which culpable SC No. 25/99, FIR No. 17/99 35 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 homicide would amount to murder. This fourth situation is reproduced as under :
4thly.If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
A perusal of the above stated portion of the judgement would make it clear that if a situation so warrants, a reckless driving may be covered under Section 300(4) IPC (which has been quoted above by me) or it may also fall under third part of Section 299 IPC which makes an act causing death of a human being punishable if the offender acts with the knowledge that he was likely by such act to cause death.
Therefore, in nutshell the legal proposition can be summed up like this. The duty of the court is to first rule out a culpable homicide after considering the quality of knowledge attributed under Section 300(4) or in third part of Section 299 IPC and if the facts and circumstances do not fall in any of those provisions, then the court would consider the question as to whether offence U/S 304 A IPC is disclosed or not.
Now let me discuss as to what is the scheme of the Indian Penal Code and what are graver offences where the question of knowledge is involved. While referring the scheme of the court I SC No. 25/99, FIR No. 17/99 36 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 am drawing heavily from an article with the title RECKLESSNESS UNDER THE INDIAN PENAL CODE by Stanley Meng Heong Yeo an Australian author. The article is published in Volume 30 of Journal of the Indian Law Institute. (may be cited as 293 Journal of the Indian Law Institute [Vol. 30 : 3]. It is made clear that I would not be referring the article verbatim but I am placing the copy of the same on judicial record.
The first question to be determined is what kind of recklessness is punishable. It is, by now, a well settled legal proposition that a simple reckless act or a simple rash or negligent act would not constitute a criminal offence, though it may invite civil liability.
In order to make a reckless act punishable, it must be gross in nature. As soon as a gross reckless act has resulted in death, the further inquiry would be as to whether any kind of knowledge can be imputed to the doer. The next inquiry should be as to what is the scheme of the Indian Penal Code in the cases involving human deaths by a gross reckless act done with a particular knowledge. I most humbly emphasize that in all the case law/authorities submitted by the prosecution and the defence, this issue has not been discussed. Therefore, drawing the essence from the above mentioned article, I venture to discuss the scheme of Indian Penal Code as under :
KNOWLEDGE OF FIRST DEGREE This is defined U/S 300 (4) IPC and the knowledge required under this Section is that act was imminently dangerous that death would be caused in all probabilities.
SC No. 25/99, FIR No. 17/99 37 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
Such act would be punishable U/S 302 IPC. Such type of offences are of highest degree of gross recklessness.
KNOWLEDGE OF SECOND DEGREE Where death is caused by an act which the offender knows is likely to cause death. This knowledge has been mentioned in 3rd part of Section 299 IPC and the offence is punishable U/S 304 II IPC. Such type of offences may be termed as the cases of substantial gross recklessness.
KNOWLEDGE OF THIRD DEGREE Where the act has dangerous consequences like causing death, but the offender hopes that the same would not occur. This offence is covered U/S 304A IPC. Such type of offences are the cases of lowest degree of gross recklessness and may be called rash acts.
These degrees refer to the degrees of gravity of recklessness on the part of the offender and various degrees of knowledge of the consequences imputed to the offender.
I would appreciate as to what type of knowledge the accused Sanjeev Nanda possessed at the time of the offence. Before discussing it I would discuss two more points. First, what the scene of crime speaks and what is the implication of driving a vehicle when the driver is excessively drunk. Where ever I refer the word "drunk", it means that the driver has, in his blood alcohol exceeding 30 mg. Per 100 ml. of blood which is one ingredient of Section 185 of Motor Vehicle Act.
SC No. 25/99, FIR No. 17/99 38 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
SCENE OF CRIME
As translated in English, the scene of crime has been narrated by SI Kailash Chand in the rukka as under :
After the receipt the DD, I along with Ct. Jagan Lal reached the spot i.e. Car Care Center, Petrol Pump, Lodhi Road, where three persons namely Ct. Ram Raj - DHG, Ct. Rajan Kumar (CRPF) and unknown age about 35 years were found and four persons were reported to be shifted to hospital by PCR Van.
A broken No. of plate was found lying. After assembling broken pieces the particulars were revealed as M312LYP and Park Lane and BMW. At the spot the black colour piece of bumper and rear wind screen and black colour broken piece of the car were found scattered in the radius of 100/125 ft. Skid marks of a vehicle were seen on the road. The head of unknown body was bound crushed, brain matter was found out side the skull. The body of Ct. Ram Raj was found crushed due to passing of the SC No. 25/99, FIR No. 17/99 39 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 vehicle, his right leg was found detached and was lying at distance of 10' - 15'. The abdomen of Rajan Kumar was found burst and the blood is spread on the road for considerable distance....... On the spot pieces of flesh was found scattered in a large area. These facts were indicating that death of these three persons occurred due to forceful impact of vehicle no. M 312, LYP, there were skid marks upto 30' - 40'........
Investigation Officer SI Kailash Chand prepared a rough site plan Ex.PW58/B. As per observation of the IO at point A of site plan was the place where first impact occurred. Blood is lying at point A. At point B which is at 38 steps away from point A, blood is lying and there are blood stains and skid marks. At point C on the middle divider there are friction marks of the tyre. Point C is eight steps away from point B. At point D one dead body is lying having its right leg amputated. There are blood and friction/drag marks from point C to D. At point E one dead body is lying near electric pole no.12 and blood as well as drag marks are seen. At point F another dead body is lying and point point F is 26 steps away from the point E. From the point E to F the drag marks and blood are visible. At point G which five steps away from point F, one amputated leg is lying in front of electric pole no.13. Pieces of bumper and broken pieces of glass were lying scattered. Bumper was black colour.
SC No. 25/99, FIR No. 17/99 40 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
One oil trail was also observed by the Investigating Officer going towards Madarsa Safdarjang. In this site plan point B is seen at electric pole no.11.
The description of scene of crime as observed in the rukka is corroborated by the site plan prepared by the Investigating Officer and the videography done by the police of the scene of crime. Since the site plan is made by Investigating Officer on his own observations, the same is admissible in evidence. The points where blood and dead bodies are lying, skid marks and the oil trail prove it clearly that the offending vehicle was coming from the side of Nizamuddin and after the offence went towards side of Madarsa Safdarjang. This scene of crime makes it clear that the offending vehicle first hit the persons standing on the left side (i.e. at point A) of the road near footpath where some blood is seen lying. Thereafter the vehicle took a right turn and hit the central verge. The videography scene of crime (now converted into a CD) would show that there are three parallel dragged marks of blood on the road upto to a certain distance. As per the rukka and the site plan, thereafter one body is lying and second body is lying after that and third body is lying at a distance. This leads to only one conclusion that these persons had been entangled with the car and thereafter they were dragged by the offending vehicle and they fell one by one and were also got crushed and amputated. I have already discussed that the offending vehicle was BMW Car driven by accused Sanjeev Nanda.
Since the part of dead bodies were strewn over a large area, it can be understood that the car was being driven an extremely high speed when it hit the unfortunate persons. The road is a SC No. 25/99, FIR No. 17/99 41 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 well lit area as is clear from the site plan where electric poles no.11, 12 and 13 are shown. In fact pole no.11 is at a very short distance from point A where the vehicle struck first and it is almost at that very point where Investigating Officer has shown a point B. Even PW1 Hari Shanker has admitted that there are electric poles on the middle pavement of the road and there was sufficient light. It is no one's case that these electric poles were not illuminated. As per PW15 S. C. Gupta, the Director and Incharge Meterorologial Office, Safdarjung Airport, New Delhi, there was visibility of 1000 meters on 10.1.99 at 5:30 am. Therefore it is clear that no mist and there was lot of visibility at the spot at the time of offence. Therefore it cannot be said that at the time of offence that accused could not have seen the few persons standing on the road. Those persons after being hit by the BMW car were got entangled in it and still accused kept on driving the vehicle for quite a long distance. The accused has not shown any circumstance that he could not see that few of the persons had come under his car. Therefore I am of the opinion that the scene of crime itself proves beyond doubt that accused had seen that the BMW car being driven by him had dragged the three persons for a long distance and there is nothing on record to show that accused was disabled due to any reason such as lack of electricity to know that a few persons are entangled under the bonnet of his car.
TESTIMONY OF MANOJ MALIK (PW2) He has testified that offending vehicle was a truck. Such a testimony by a victim of the offence himself would lead to only one conclusion that he has been won over by the defence. Reaching upto the final arguments, even defence had admitted that the offence was committed by the BMW car in question.
SC No. 25/99, FIR No. 17/99 42 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
Despite his being won over, he has supported the prosecution case on a few points. I clarify that while perusing his testimony, I would use the word "offending vehicle" instead of truck. This witness testifies that on 10.1.99 at about 4:30 am he was going to railway station along with his friend Gulab to see him off. When they were proceedings on foot and reached near petrol pump, Lodhi Road the three police officials stopped them to check their belongings. When these police officials started checking the belongings near the patri, a vehicle came at a very fast speed from Nizamuddin side and hit them. He testified that his two companions and three police men came underneath the vehicle. He testified one more fact in his cross examination by Sh. R. K. Anand Ld. Defence Counsel for accused Sanjeev Nanda that this offending vehicle had stopped at a little distance. This is a very important fact which would corroborate the testimony of court witness Sunil Kulkarni (to be considered in the later part of this judgement). Suffice it to say that some glimpses of truth have come out even from the mouth of this hostile witness and his testimony fully corroborate the inference which is drawn from the observations of the scene of crime by the Investigating Officer. His testimony has proved that a few persons came underneath the offending vehicle. Scene of crime clearly shows drag marks and bodies fallen at various points one after another. Therefore the testimony of PW2 Manoj Malik coupled with the scene of crime prove beyond reasonable doubt that the offending vehicle came from the side of Nizamuddin, hit a few persons on the left side Patri, who came under the offending vehicle and thereafter took a turn and hit the middle divider. From this place which is shown at point B in the site plan, the offending vehicle started dragging the persons who had come under it. These three dead bodies fell one by one after a certain distances.
SC No. 25/99, FIR No. 17/99 43 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
In such a scenario and in view of the above discussions, it is clear that it is a case of causing death of human beings by an act of gross recklessness on the part of accused Sanjeev Nanda.
HOW DO WE MEASURE THE DEGREE OF GROSS RECKLESSNESS WITH A SPECIFIC KNOWLEDGE Ld. Defence Counsels have referred a long list of judgements and though it will entail lengthy discussion, however in view of the nature of offence all these authorities have to be considered.
In AIR 2005 SC 3180 where the Supreme Court was dealing with a case of medical negligence. The facts in our case are not a case of negligence rather the same is case of recklessness. There is a great deal of difference between the two legal terms and therefore this case is not similar to the above stated judgement of Supreme Court. Otherwise also the Supreme Court in the said judgement specifically noted in para 35 that "The criminal law has invariably placed the medical professionals on a pedestal different from ordinary mortals. The Indian Penal Code enacted as far back as in." Moreover, the death in the said case did not occur due to any direct negligence of the medical man rather it was due to the fact that an oxygen cylinder which was immediately required to save the child was found to be empty. Therefore the Supreme Court quashed the criminal proceedings against the doctor.
To my mind, the result of this particular case would have been totally different if an unqualified doctor in highly intoxicated state had performed an operation on a patient. In SC No. 25/99, FIR No. 17/99 44 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 such a situation a knowledge as specified under Section 300(4) IPC or third part of Section 299 IPC could be validly imputed upon him considering the attending circumstances.
In (2000) 7 Supreme Court Cases 72 one passenger was boarding the bus. When the bus moved forward, the passenger fell out of the vehicle and was run over by the rear wheel of the bus. The Supreme Court acquitted the driver of the bus as on the facts itself it is clearly an accident. These facts are totally not applicable to this case.
In case (2007) 3 Supreme Court Cases 474 the Supreme Court was dealing with the case where a driver of lorry drove the vehicle in a extremely high speed and dashed against a tree and caused death of three persons who were the passengers of the said lorry. In this case the prosecution has pressed the charges under Section 304A IPC only and the Supreme Court upheld the conviction under Section 304A IPC. Therefore the Supreme Court was not dealing with a question as to whether it amounted to offence under Section 304 IPC or 304A IPC.
Otherwise also the driver of the lorry was not drunk and no additional fact or circumstance was on record to presume that the driver did this act with a certain knowledge. The only evidence against the driver was that he was driving the vehicle at a high speed.
In (1976) 1 SCC 889, the accused used to drive a truck earlier with the permission of the truck owner. On the date of incident, the truck had some other driver. When the driver was away, the accused drove away the truck with full speed straight on a cot upon which the deceased was resting. Due to this reason SC No. 25/99, FIR No. 17/99 45 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 the deceased was thrown away about 10 feet and was got killed. The accused was charged under Section 302 IPC. High Court converted the conviction into Section 304 (II) IPC, however Supreme Court held that it was simply a case under Section 304A IPC. The relevant facts which were considered by the Supreme Court were that the truck while being driven was trying to turn towards the Kutcha road near the cot and accused was unable to control the vehicle in high speed while taking the turn. The Supreme Court also considered that there was no direct impact of persons with the truck. This fact ruled out the intention. In this case also the driver was not drunk.
In AIR 2007 SC 2376, the Supreme Court was dealing with a case where a boy aged 10 years was run over by a bus driver in the middle of the road. The investigation by the police revealed that there was evidence to the effect that even the passengers in the bus were alarmed of the enormous, speed in which it was being driven and had cautioned the driver to stop even crying, as they had seen the school children crossing the road in a queue. The investigation also revealed that even the children crossing the road had raised both hands for stopping the vehicle. The passengers and pedestrians were of the view that the bus was being driven at a high speed and that they had cried aloud to stop the bus. It was, in spite of all these, that the bus ran over the said student on his head and the bus could be stopped only 15 to 20 feet ahead of the spot of occurrence. In the light of the said evidence, the investigating officer felt that there was real intention on the part of the appellant/driver of the bus to cause death of persons to whom harm may be caused by reason of hitting the bus and he was charged with offence punishable under Section 302 IPC. The court below found that no intention had been proved in the case. But, at the same time, the accused SC No. 25/99, FIR No. 17/99 46 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 acted with the knowledge that it was likely to cause death. So, the act committed by the appellant was culpable homicide not amounting to murder punishable under Section 304 Part II IPC. Convicting him for the said offence, he was sentenced to undergo rigorous imprisonment for five years etc. The High Court of Kerala upheld the conviction. The Supreme Court however held that it was only a case under Section 304A IPC. Though the Supreme Court has not given any reason as to why it was not an offence under Section 304 (Part 2) IPC, but one thing is very clear from the facts that the driver was not drunk.
In (2000) 1 Supreme Court Cases 662, a truck driver was convicted under Section 302 IPC for intentionally dashing against a scooterist and thereby killing him. The conviction was upheld by the High Court of Rajasthan. However the Supreme Court held that prosecution was unable to prove that the truck driver had intentionally dashed against the scooterist. Once the ingredient of "intention" had gone, there was nothing on record to show that the offence fell in any other category except Section 304A IPC. Therefore the facts of the case before Supreme Court are not similar to the case in hand. I may point out that even here the driver was not drunk.
In Kuldeep Singh vs. State of Himachal Pradesh Criminal Appeal No. 1106 of 2008 (arising out of S.L.P. (Crl.) No. 1944 of 2008 the Supreme Court had considered a case of allegedly a drunk driver carrying marriage party. Driver lost its control and the truck went off the road, rolled down in the field leaving many persons dead and many other injured. The careful perusal of this case would show two things, first it is not on record that driver was drunk beyond permissible limits, in fact it was only an allegation that driver was drunk, second the Supreme Court SC No. 25/99, FIR No. 17/99 47 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 while considering the circumstances did not take it in account that the driver was drunk. The only circumstance considered by the Supreme Court was that three witnesses had stated that the vehicle was being driven as if it was an aeroplane. Hence practically the case before Supreme Court was not that of a drunk driver.
In (2004) 10 SCC 794, the victim was dashed by a vehicle and was killed. On this very fact the driver was convicted under Section 302 IPC by the trial court. The Supreme Court held that from the facts proved neither the intention to kill the victim, nor the knowledge that the act is likely to cause death can be inferred. The Supreme Court convicted the driver under Section 304A IPC. I am of the opinion that the facts of the present case before this court are much a lot more grave showing a certain knowledge, which I am discussing in this judgement.
In (2008) 1 SCC 791, a bus was hit by a train at a railway crossing in which several persons were got injured and two died. The accused was charged under Section 302 IPC and under Section 304 IPC. The Supreme Court held that it was only a case under Section 304A IPC. From the perusal of the judgement, the relevant facts which weighed are that it was a unmanned crossing. Secondly the engine of the train hit the rear portion of the bus and there was also a great chance that it might be only an error of judgement on the part of the driver of the bus. It must be noted here that the driver was not drunk at that time.
A perusal of all these authorities cited by Ld. Defence Counsels would show that all these cases were the cases of simple rash driving and in none of those cases the drivers were drunk.
SC No. 25/99, FIR No. 17/99 48 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
The present case, on the other hand, is of a very high degree in the gravity of gross recklessness. The accused was so heavily drunkard that a knowledge can be validly imputed upon him that if he drives the vehicle he is likely to cause death of a human being passing on the road. Despite being drunk, accused instead of carefully and slowly driving the vehicle, threw all the precautions away and drove the vehicle at excessively high speed.
Ld. Defence Counsels have repeatedly referred to Holloway, J., who defines culpable rashness as under :
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness (luxuria).
Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness.
SC No. 25/99, FIR No. 17/99 49 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
The imputability arises from the
neglect of the civic duty of
circumspection."
This definition of the "culpable rash act" is qualified by the word that the actor believes that he has taken all precautions to prevent the mischievous and illegal consequences. This definition has been approved by the Supreme Court in various judgements referred above by Ld. Defence Counsels. Ld. Defence Counsels are also taking the shelter of this definition. Here "culpable rashness" is equivalent to "gross rashness" which is an ingredient of Section 304A IPC. This definition would very clearly show that an offence under Section 304A IPC would be made out only when accused had been grossly rash and negligent though he believes that he had taken sufficient precautions to prevent the consequences and therefore though he knew the consequences of his act, but, he never hoped for it. As soon as this belief goes, the culpable rashness would become of a higher degree and if this culpable rashness has resulted in death, the appropriate provisions other than Section 304A IPC would be applicable. In the present case all the precautions have been thrown away to the winds by the accused Sanjeev Nanda. He should not have driven the vehicle while he was under such a great intoxication. Even if in view of certain circumstances he found it necessary to drive the vehicle back to his home, it was his duty to be extra cautious while driving the vehicle. At least he could have driven it at a very slow speed. Once these precautions have been given go by, it cannot be said that he had a belief that he had taken all precautions to prevent the disastrous consequences. Therefore in the present case, the degree of gross recklessness would go beyond the purview of Section 304A IPC and would fall somewhere up.
SC No. 25/99, FIR No. 17/99 50 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
WHAT DIFFERENCE DOES A DRUNK DRIVING MAKE?
While discussing the case law cited by Ld. Defence Counsel above, I have differentiated the judgments of Supreme Court with the present case on the ground that none of those cases were of drunken driving.
I am stressing upon the drunken condition of a person time and again with a view to ascertain as to what knowledge can be imputed to a drunken person who is driving a vehicle. I advert to Section 185 of Motor Vehicle Act. As per this provision, if a drunken person (where ever the word drunken person appear, it should be inferred that he has consumed the liquor beyond permissible limit) attempts to drive a vehicle, he can be punished to imprisonment up to two years (for the first offence six months and the second offence upto two years). What is the purpose of punishing a drunk person even at the stage when he has only attempted to drive the vehicle and has not actually driven it. The purpose is very clear. The Legislature imputes a specific knowledge to the offender that if he drives the vehicle in a drunken state, the accused would be creating an extremely dangerous situation for the passengers on the road as well as for the occupants of the motor vehicle and the such driving is likely to lead to disastrous consequences like death of a human being.
There is another provision in a Motor Vehicle Act which requires to be looked into. As per Section 184 Motor Vehicle Act a person who drives a vehicle in dangerous manner is punishable up to two years of imprisonment (for the first offence six months, for the second offence upto two years). This "dangerous driving" can be equated with "gross rashness". There are cases SC No. 25/99, FIR No. 17/99 51 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 where a person is driving a vehicle in drunken state and also driving the vehicle in gross rash/dangerous manner. Such person would attract punishment U/S 184 Motor Vehicle Act as well as U/S 185 Motor Vehicle Act. The cumulative sentence of Section 184 and 185 Motor Vehicle Act would be up to one year in case of first offence and upto four years in case of repetition. Therefore, in case of repetition of these offences, the cumulative gravity offences U/S 184 and Section 185 of Motor Vehicle Act would be higher than the punishment provided for the offence Section 304A IPC where the punishment provided is only up to two years. Of course there is no enhanced sentence for repetition of an offence under Section 304A IPC.
A comparative study of these provisions would show that in case of rash driving, causing death of a human being, legislation has thought it appropriate to punish an offender to an imprisonment up to two years. Whereas maximum punishment provided under Motor Vehicle Act for rash driving by a drunken driver may count upto four years even though he has not killed any person. The reasons for it is that a drunken driver is presumed to have the knowledge that by driving the vehicle in such state of intoxication he is likely to cause death of the human beings. Therefore, to my mind, a conjoined reading of above provisions and the sentencing pattern are enough to conclude that if a drunken person drives a vehicle in highly rash or dangerous manner and thereby kills a human being, the offence goes beyond the purview of Section 304A IPC and such gross recklessness would either fall within purview of Section 300(4) IPC which is punishable U/S 302 IPC or within the purview of third part of 299 IPC which is punishable U/S 304 II IPC.
SC No. 25/99, FIR No. 17/99 52 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
Sh. Prem Kumar, adv. for accused Sanjeev Nanda has filed a consultation paper on Legal Reforms to Combat Road Accidents pertaining to Law Commission of India. In the end of this paper few questions have been framed for the purpose of suggestions/views/comments. I reproduce the same as under :
8.3 Do you agree that causing death of any person through driving under the influence of drink or drugs should not merely be deemed to have been committed in a rash or negligent manner, but be made an offence of culpable homicide not amounting to murder punishable under Section 304 IPC?
8.4 Or, do you agree that the offence of causing death of any person through driving under the influence of drink or drugs should continue to be an offence under Section 304A, IPC, but the minimum term of imprisonment of two years for the same be prescribed in the said section?
Both the questions are very relevant to the emerging scenario in developing country like India where a driving culture is yet to take roots. Regarding the first question I would say that the deaths caused by a drunken driver do fall within the purview of Section 304 (II) IPC even as per the existing law.
SC No. 25/99, FIR No. 17/99 53 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
In fact as per the law as stands today, if a drunken driver drives a motor vehicle with a great speed and rash manner in a crowded street, he might be liable to have committed an offence under fourth part of Section 300 IPC punishable under Section 302 IPC and in case a drunken driver drives a motor vehicle and kills a person, his case would fall under Section 304 (II) IPC. It must not be forgotten that a motor vehicle being driven by a drunk driver is virtually a death machine on the road.
Therefore to sum up the above discussion, the law imputes the knowledge upon a drunken driver that by driving the vehicle in such a state of intoxication, he is likely to cause death of human being on the road. This is the reason why the law would punish him even if he attempts to drive the vehicle and though he has not actually driving the said vehicle. If such a drunken person actually drives the vehicle and that too in highly dangerous manner or with high degree of recklessness, the knowledge that his act is likely to cause death of human beings on the road, becomes more specific and more pronounced. I have pointed out that in all the cases which came before the Supreme Court, drivers were not drunk. On the other hand, the evidence on record makes it very clear that accused Sanjeev Nanda was excessively drunk and was driving the vehicle at an excessive speed. In such a situation, it can be safely inferred that when accused Sanjeev Nanda started with his vehicle in highly drunk state of intoxication beyond permissible limit, he started with the knowledge that his act might result in death of some persons. When he drove the vehicle at extremely high speed and did not even slow down the vehicle on seeing seven persons standing on the road, his knowledge that his act is likely to cause death, becomes more specific and more certain. After hitting the SC No. 25/99, FIR No. 17/99 54 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 persons standing on the road, the vehicle took a right turn in which few persons who were underneath the bonnet were dragged and hit the right side divider. The scene of crime shows that there are scratch marks on point B to C on the divider. The videography would show that there are three long blood drag marks on the road. This shows that dead bodies which had come underneath the bonnet had been dragged for quite a long distance. There is nothing on record to presume that accused Sanjeev Nanda never knew that the accused persons had come underneath the bonnet of his car. A look on the photographs of BMW car would show that due to impact of the offence, the windscreen fragmented. In such a situation, I have no reason why the accused should not stop the vehicle there and then and why he should continue with driving. In fact, the driving of vehicle in a drunk condition at a very highly reckless manner when the windscreen had become fragmented and opaque would amount to highest degree of recklessness. Since the charge containing the allegations forming the ingredients of Section 300 (4) IPC has not been framed, I am not inclined to discuss whether the gravity of recklessness coupled with the knowledge that his act was imminently dangerous to cause death would not be discussed by me. But, to my mind, the gravity and the knowledge is almost touching the boundaries of Section 300 (4) IPC. In such a situation, the facts of the case can fall within the purview of Section 299 (Part III) IPC and it would be unjustified to treat the present case under Section 304A IPC.
Therefore the cumulative effect of the above discussion that scene of crime as observed by the police officials, the site plan and the videography coupled with the fact that the driver of the offending vehicle namely Sanjeev Nanda was highly drunk and the manner in which the offence was committed, definitely places SC No. 25/99, FIR No. 17/99 55 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 the offence on the highest boundary of Section 304 (II) IPC. Once the gravity is so serious, as per the dictum of Hon'ble Supreme Court, Section 304A IPC would have to be ignored.
WHETHER SUNIL KULKARNI IS A RELIABLE WITNESS Till now, I have discussed the entire evidence available on the judicial record while excluding the testimony of Sunil Kulkarni because Ld defence counsels and at one stage, even the prosecution had been assailing his credibility. It is argued by Ld defence counsels that this is a witness who has no permanent address. The case of cheating has been registered against him by one Gauri Shanker. In a programme telecast by India TV, Gauri Shanker told that Sunil Kulkarni was a cheat and was in Mumbai on the date of offence. Ld defence counsels have drawn my attention to the fact that the summons of this witness are ample proof of his shady character. Ld defence counsels have drawn my attention to the fact that in the report on the summons, it is written that Gaurishanker had given him mobile phone. Ld defence counsels have drawn my attention that in the register of Shivalik Hotel, witness Sunil Kulkarni had given his mobile phone number. It is argued that if accident had taken place in his presence, he could have informed the police through his mobile phone which he did not. It is submitted that the register shows that this witness left the hotel in the evening of 9.1.99 for Nahan. On the other hand , before this court, he testifies that he had left for Bhopal. It is argued that as per his own testimony, this witness returned from Bhopal on 12.1.99 but he does not stated where he remained for three more days. Ld defence counsels have drawn my attention that this witness approached the police on 15.1.99.
SC No. 25/99, FIR No. 17/99 56 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
Ld defence counsels have drawn my attention to the fact that the witness had left for Bhopal in the morning and states that he reached in Bhopal on the next day morning. It is argued that it is impossible and any train takes normally 10 hours to reach Bhopal. It is further argued that till date, this witness was never been served upon. Rather he appears before the court himself. It is further argued by Ld defence counsels that even if it is presumed that the witness was present at the spot, his testimony cannot be relied upon. It is argued that he was in police protection and therefore, he was under the police hands It is further argued that even if he had seen the accident, he has not testified anywhere that accused Sanjeev Nanda was driving the vehicle. Rather at one place he testifies that another occupant of the car came out of the driver seat. Ld counsels for accused argue that such witness should be thrown Lock stock and barrel and his testimony should be discarded entirely, more so, because he is a chance witness.
It is true that Sunil Kulkarni possesses a very peculiar personality. He appears to be a character direct from novels of Charles Dickens and has very strange aspects to his personality. But the truth is that such people are not uncommon. Such people behave in a very strange manner. Normally such persons are very sharp. But at the same time throwing the evidence of such witness at first instance would not be justified.
Such persons may be truthful witnesses to an event. If they are an eye witness of an offence, there is nothing in law to disbelieve them. However, the courts would be at guard and would be extra cautious in weighing their evidence. In fact such a witness has to pass through a close scrutiny by the court . If his testimony is well corroborated, there should be no hitch in SC No. 25/99, FIR No. 17/99 57 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 believing them.
The prosecution has proved a register from the Shiva Continental Hotel that accused was present in Delhi on 9.1.08 till till 12:30 pm. Therefore his presence in Delhi in the early morning of 10.1.99 cannot be improbable. His testimony that he had started for the railway station to catch a Bhopal train is substantiated by the fact that he purchased a document from Bhopal on 11.1.99 and the same was verified. In fact the accused had not disputed that Sunil had purchased a document from Bhopal on 11.1.99. I have seen the programme telecast by India TV. A perusal of that interview would show that the interviewer is almost putting the words in the mouth of Gaurishanker to say that on the date of offence, Sunil Kulkarni was in Mumbai. Though Gaurishanker is unambiguous in saying that Sunil Kulkarni was a cheat but he is hesitant to state that on the day of offence, Sunil Kulkarni was in Mumbai. The proved fact that on 9.1.99 up to 12.30 am Sunil Kulkarni was in Delhi and on 11.1.99, he was in Bhopal supports his testimony that in the morning of 10th, corroborates his testimony that in the early hours of morning, Sunil Kulkarni was very much in Delhi.
Now, this court is to see as to whether he had seen the incident himself. This witness has testified that when he came to the police, he met SHO Lodhi Colony, police asked him to give his version in writing. The description of the incident in his application to SHO matches the scene of crime. Though the value of this letter is that of statement U/S 161 CrPC but the conduct of a witness in coming to police and giving the detail of of the incident corroborates the prosecution case that this witness had himself seen the incident. It appears that police was SC No. 25/99, FIR No. 17/99 58 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 initially doubtful and therefore police produced this witness before Sh Raj Kumar Chauhan, the then Ld Metropolitan Magistrate who recorded the statement of Sunil Kulkarni U/S 164 CrPC. The testimony of this witness before this court is substantially consistent with his previous statements as well as it matches the description of scene of crime mentioned in the rukka as well as in the site plan. But as a Judge, I was looking for further corroboration so as to determine as to whether this witness had actually seen the accident himself. The testimony of this witness was read time and again and I have perused his testimony very carefully by comparing the same with the site plan and scene of crime as appearing in videography . This witness hs testified that after hitting the persons, the vehicle struck against the middle divider and there this vehicle stopped. It is pertinent to note that PW Manoj Tiwari has also testified that the offending vehicle had stopped after some distance. Therefore, the testimony of Sunil Kulkarni is corroborated by the testimony of another witness namely PW2 Manoj Tiwari. This witness further testified that all the occupants of the vehicle came out of the car and inspected the car from front side and the back side. One of the occupants stated accused Sanjeev Nanda to rush. It is pertinent to note that this is only witness who testified before the court for the first time that thereafter the vehicle was driven back and then it sped away. The fact of reversing the vehicle was not stated to the police by any of the witnesses. In fact even in his statement under Section 164 CrPC, this witness has not stated the fact of reversing the vehicle. The fact of reversing the vehicle came to the light for the first time in the testimony of Sunil Kulkarni and the same was not brought to light by any witness either during investigation or during the trial. In the site plan as well as in the rukka, police did not note down a very particular fact which could have shown that SC No. 25/99, FIR No. 17/99 59 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 actually the vehicle had been reversed. The Investigating Officer due to oversight has not shown the tyre marks caused by the blood which show that vehicle had been reversed. But a careful perusal of the videography would show this evidence very clear. IN fact during the arguments, Ld defence counsels have pointed out as to how blood stained tyre mark going obliquely towards the middle divider is seen. The defence tried to take the advantage of this tyre mark as that of some other vehicle which disturbed the scene of crime and threw the dead bodies at a long distances. If we view the videography, there is a blood spread on the road near point B as shown in the site plan. This point is near electric pole no.11 as is clear from the site plan. This electric pole would also been seen in the videography. At this point a lot of blood is lying. One bloody tyre mark obliquely goes upto the pool of blood but it stops there and does not cross the pool of blood. A careful perusal of this bloody tyre marks in the videography would show that it is the blood marks caused by a tyre of a vehicle which was reversed and thereafter it was driven straight.
This portion of the videopgrahy leads to an inference that first the vehicle hit the middle divider while someone was entangled underneath the car. The oblique bloody tyre marks could have been received when the vehicle was reversed back and thereafter the three parallel blood are seen when the vehicle sped away. The evidence of Sunil Kulkarni that the vehicle was reversed and sped away while the dead bodies were lying underneath bonnet of the car is well corroborated by this above stated portion of videography. Till the appearance of Sunil Kulkarni before this court, none of the witnesses including Sunil Kulkarni himself had stated that the vehicle had been reversed after it was inspected by its occupants. Furthermore, the SC No. 25/99, FIR No. 17/99 60 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 Investigating Officer remained oblivious to this oblique blood tyre marks and the Investigating Officer did not mention this fact about this particular blood trail anywhere in the investigation. But this witness mentioned this fact very categorically in the court and the same stands duly corroborated by the videography scene of crime. In view of this very specific and well corroborated evidence of Sunil Kulkarni I am left in no doubt that he could not have testified in this manner unless he himself had seen the offence. I may point out that in the statenment U/S 161 CrPC Manoj Tiwari and Harishanker , there is no mention of reversing the vehicle. The oblique bloody tyre mark in the videography has no other explanation except the one which is offered by Sunil Kulkarni. In fact, Ld defence counsels have tried to take advantage of this blood trail by arguing that some other vehicle had disturbed the scene of crime, which to my mind has no basis.
I am of the opinion that accident took place at about 4.30 am and police reached at about 5 am. The traffic at that time could not have been much and it should not be expected that everyone drives vehicle in such rash and negligent manner. In fact, even the witnesses who had been won over by the accused persons have not testified that some other vehicle ran over these or disturbed the scene of crime. Therefore, the witness Sunil Kulkarni has testified before this court on such a material point which had been ignored by all the witnesses and the Investigating Officers. In fact, even Ld defence counsels were not able to understand how this blood tyre mark appears near the middle divider. In these circumstances it stands proved beyond reasonable doubt that Sunil Kulkarni is an eye witness to the offence. I have already discussed that prosecution has proved beyond reasonable doubt that accused Sanjeev Nanda was SC No. 25/99, FIR No. 17/99 61 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 driving the vehicle . It is neither a case of prosecution nor case of accused Sanjeev Nanda that the vehicle was being driven at the time of the offence by Sidharth Gupta or accused Manik Kapur or any other occupants. Therefore a stray statement of Sunil Kulkarni wherein he has stated that Sidharth Gupta had come out of the driver seat should be ignored. Even if this statement is taken to be true, it does not lead to an inference that Sidharth Gupta was driving the vehicle at any stage of the incident. Now this court is to see as to what is testified by witness Sunil Kulkarni in his evidence.
Sunil Kulkarni was summoned by this court under Section 311 CrPC. He had been dropped by the prosecution but since his statement under Section 164 CrPC was very much on judicial file, and the two eye witnesses namely PW1 Hari Shanker Yadav and PW2 Manoj Malik have turned hostile, I thought it appropriate to summon Sunil Kulkarni as a court witness. In his evidence he testified that when he reached near the place of incident, he saw a group of people who were standing a bit in the middle of the road. From his opposite direction on the road very heavy lights of a vehicle were seen by him. The lights were so powerful that he could not see much. The said vehicle was a black car and it hit those people standing on the road. When the car hit those people a few persons flew in the air and remaining fell on the side of the car. The witness heard the sound of application of brakes and thereafter he heard another sound caused by hitting by the car. The three persons came out of the said car and they saw the damages on the car. Thereafter all the three persons sat in the car and the car was taken a bit reverse and thereafter took away the car with speed. This witness was cross examined by Sh. I. U. Khan the then Public Prosecutor for State on 29.5.2007. It appears that for the prosecution, Sunil SC No. 25/99, FIR No. 17/99 62 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 Kulkarni was still an unreliable witness. I am leaving out this portion of the examination at present and directly come to the cross examination of the witness by Sh. Rajeev Mohan the new Public Prosecutor. The change of public prosecutor was occasioned by the relay of a sting operation by The NDTV on 30.5.2007 i.e. One day after 29.5.2007 on which the witness was cross examined by Sh. I. U. Khan the then Special Public Prosecutor. In this telecast the Special Public Prosecutor and defence counsel Sh. R. K. Anand were shown influencing the witness Sunil Kulkarni. While assessing the testimony of Sunil Kulkarni it must be kept in mind that he was facing a public prosecutor who was acting in collusion with the defence counsel. The recent judgement of High Court of Delhi in WP (CRL.) NO. 796/2007 pronounced on 21.8.2008 is an eye opener in respect of the conduct of the special public prosecutor and the defence counsel, both of whom were senior advocates in the present case. Therefore the witness was clearly under great mental pressure at the time of recording of his evidence. Hence the contradictions and improvements on the periphery appearing in his testimony should be seen in that light.
The witness was further put to cross examination by Sh. Rajeev Mohan Ld. Special Public Prosecutor and in this cross examination the witness gave a detailed testimony. He testified that 5 or 6 persons were standing near the tree towards Hudco Building. The vehicle which was coming from the side of Nizamuddin hit those 6 persons. The vehicle was at a very very high speed. Due to impact of the accident, 2 or 3 persons fell on the bonnet and wind screen of the car. Sh. Rajeev Mohan Ld. Special Public Prosecutor spread the scaled site plan in the court and the witness testified with reference to the said site plan. He SC No. 25/99, FIR No. 17/99 63 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 testified that the car had hit the persons at point A i.e. on the foot path on the side of petrol pump. Witness testified that the offending vehicle travelled from point A to B in the site plan on the same speed or even at a higher speed. This B point is on the right side of the road if we come from Nizamuddin side. The witness further testified that while the offending vehicle was proceedings from point A to B, 2 or 3 persons were still on the bonnet of the car and in this process 2 or 3 persons fell down and rolled down from the bonnet, were dragged and were crushed by the car upto point B. All this happened within fraction of seconds. The persons who were hit were crying and shouting. After hitting at point B which a point at middle divider of the road, the offending vehicle had friction with divider to some distance and stopped. The witness testified that all the occupants of the car came out and inspected the car by seeing it from front side as well from the back side. When these occupants were seeing the car, some persons were entangled under the bonnet of the car. The witness testified that one occupant told "let us rush" and thereafter first the vehicle was taken in reverse direction and thereafter it was driven away at a high speed. The witness also stated that due to this accident the wind screen of the car had become opaque and thereafter the driver took out his neck from driver side window and drove it away. The witness also admitted on a suggestion that when the vehicle was driven away from point B in the site plan, it dragged the persons entangled under the vehicle and crushed the same and went away leaving the parts of the body and these parts of the body and dead bodies had fallen on the road towards flow of the traffic and the luggage of all those 6 persons had scattered on the road. This witness admitted in cross examination by Ld. Defence Counsels that he had not stated the colour of the car as black in his statement under Section 161 CrPC and 164 CrPC. He also SC No. 25/99, FIR No. 17/99 64 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 admitted that he has stated in his statement under Section 164 CrPC that he had seen the incident from the distance of 300 feet. Whereas in testimony before this court he had stated that he was at the distance of 60 feet. The witness explained that now he could not say as to whether he saw the incident from 300 feet or 60 feet. The witness strongly denied the suggestion that on the date and time of the offence he was not present at the spot. He denied that on the date of offence he was with Gauri Shanker Yadav in Mumbai.
This witness has given vivid account as to how the shocking incident took place. Whereas his statement under Section 161 CrPC as well as his statement under Section 164 CrPC do not mention that the vehicle was reversed back thereafter it was sped away and that the offending car was of black colour but his testimony before this court was more detailed than his previous statement. Non mentioning of colour in his previous statement is of no consequence being not material but question is whether his testimony that the vehicle was reversed is a deliberate improvement amounting to contradiction or it is a true account of the incident. As a matter of experience it is seen that a witness testifies about any incident in greater details before the court. The witness is testifying before this court that car was first reversed and thereafter it was sped away. In cross examination by Sh. Ramesh Gupta, adv. for accused Sanjeev Nanda, he has testified that he had seen the tyre marks due to passing of tyres on the blood. The witness also admits that these tyre marks were proceeding straight as well as towards the right side. This suggestion of Ld. Defence Counsel is in respect of blood tyre marks/blood trails going seen towards the middle divider on the right side of the road if we proceed from Nizamuddin fly over towards Dyal Singh College. I have already SC No. 25/99, FIR No. 17/99 65 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 discussed how the oblique tyre marks could have come. This fact that the vehicle was reversed is in exclusive knowledge of Sunil Kulkarni and the videography of the scene of crime which show an oblique blood tyre mark as well as three straight bloody drag marks on the road fully prove the testimony of Sunil Kulkarni that the vehicle was taken a bit reverse and thereafter sped away while the few persons were still under the bonnet of the car. This is how the entangled persons were dragged and had fallen one by one on the road.
Therefore appraisal of the testimony of PW Sunil Kulkarni would show that he is telling the same story which is being spoken by the scene of crime.
Therefore not only the testimony of Sunil Kulkarni in respect of as to how the offence took place is worthy of credence but the same is also well corroborated by the scene of crime.
WHAT OFFENCE DISCLOSED FROM THE TESTIMONY OF SUNIL KULKARNI Ld. Defence Counsel have vehemently argued that even from the testimony of Sunil Kulkarni, at the most an offence under Section 304A IPC would be disclosed. On the other hand Ld. APP argues that the travel of the offending car from Nizamuddin area and till hitting the person at point A and thereafter reaching upto point B amounts an offence under Section 304 (Part II) IPC but when the car stopped at point B and the accused saw the persons entangled beneath the bonnet who were shouting and crying, still he drove the vehicle at high speed. This witness is enough to prove that accused Sanjeev Nanda had caused death by causing such bodily injuries with intention to SC No. 25/99, FIR No. 17/99 66 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 cause death and thereby he has committed offence under Section 304 (Part I) IPC.
I disagree with the submissions of Ld. APP. It is a well settled law the inference as to whether an accused has intention to commit an offence or he had a knowledge about the consequences, has to be gathered from the circumstances. The following definition in Salmond On Jurisprudence is reproduced as under :
"Intention is the purpose or designed with which an act is done. It is the foreknowledge of the act and desire being the cause of the act, in as much as they fulfill themselves through the operation of the will. An act is intentional if, and in was far as, it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied."
To put it simply, knowledge of the consequence coupled with the desire to reach those consequences forms the substratum of intention. In other words, a combined force of knowledge of as well as desire for a particular consequence would be termed as "intention". Now this courts is to see as to whether the accused Sanjeev Nanda had the requisite intention to commit the offence or not.
For this purpose testimony of Sunil Kulkarni will have to be read again. In the testimony Sunil Kulkarni has testified that SC No. 25/99, FIR No. 17/99 67 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 when the vehicle hit the middle divider at point B, the occupants of the car came out and inspected the damage. I have already held that the accused Sanjeev Nanda himself was the driver of the offending vehicle and even if his wind screen had become opaque due to falling of the injured persons, In this process it is not possible that accused Sanjeev Nanda should not have seen the persons who are entangled under the bonnet of the car, at least when the car stopped at point B near electric pole no.11 and when he came out and inspected the vehicle from back side as well as from the front side. The witness has testified that injured persons were also crying. This is another reason that accused Sanjeev Nanda must have known that a few persons are entangled under the bonnet of his vehicle. But I would disagree with Ld. APP that accused Sanjeev Nanda intentionally drove away the vehicle by causing such bodily injury as is likely to cause death of the persons so entangled. This portion of Section 304(1) IPC corresponds to second part of section 299 IPC. The "intention" is the necessary ingredient of this section. As per the testimony of Sunil Kulkarni, when the occupants of the car started roaming around the car to check it, one of the occupants told Sanjeev "let us run" or "Sanz let us go". It appears that these words triggered the response in the mind of accused Sanjeev Nanda to escape away from the spot. Thereafter although accused Sanjeev Nanda knew that a few persons were entangled under the bonnet because he himself had seen them while they fell on the bonnet and thereafter came underneath the car as well as when Sanjeev Nanda inspected the car after roaming around it, the act of driving away the car was actually intended to escape away from the spot. Otherwise also there is no reason why he would desire to kill the persons who were already injured. Therefore I am of the opinion that from the circumstances attending the event at that particular time it does SC No. 25/99, FIR No. 17/99 68 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 not appear to me that accused Sanjeev Nanda could have desired to cause death of these persons. In fact, accused Sanjeev Nanda must have been in a state of shock and panic therefore he acted on being actuated by his co accused and sped away his car. This particular testimony of Sunil Kulkarni rules out the intention requisite for Section 304(1) IPC. As seen as I have already discussed that intention has two prominent features. First is the knowledge of the consequence and second, a desire for the consequence. As soon as the element of desire for the consequences goes, the mental state of an accused falls short of intention and the court is left with the only option to attribute knowledge to accused Sanjeev Nanda.
When comes the question of knowledge, the inquiry would start revolving around Section 300(4) IPC, part III of Section 299 IPC and Section 304A IPC.
There is no charge of Section 300(4) IPC read with Section 302 IPC but still I would like to discuss this a little bit. As per Section 300(4) IPC, culpable homicide is murder if the actor knows that it is so eminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death.
When some persons are entangled under the bonnet and the vehicle is driven at a very high speed, the act is so imminently dangerous that it would cause death in all probability. Since relevant charge has not been framed, I would only hold that although the offence is almost touching the borders of Section 300(4) IPC but has not fully arrived at it. Once that is the situation, the offence would fall back to Section 299 (part III) IPC punishable under Section 304 (part II) IPC. As soon as the SC No. 25/99, FIR No. 17/99 69 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 gravity of the offence is of such a nature that it is touching the borders of the offence of murder, it would be absolutely unreasonable to bring the offence within the definition of Section 304A IPC. Ld. Defence Counsels as well as Ld. Prosecutor have referred to a judgement Regina Vs. Maloney [1985] AII E.R. 1025 and both the parties have relied upon this English judgement in their favour. After perusing the said judgement, I am of the opinion that in India these facts would fall under Section 300(4) IPC or third part of Section 299 IPC and in no manner the same would fall under Section 304A IPC.
My discussions in this regard about the circumstances and evidence on record in earlier part of the evidence as well as the testimony of accused Sunil Kulkarni cumulatively leads to proving it a case under Section 304 (part II) IPC and I convict accused Sanjeev Nanda accordingly.
DESTRUCTION OF EVIDENCE The prosecution alleges that accused Sanjeev Nanda parked his vehicle at 50 Golf Link after committing the offence. It is alleged by the prosecution that accused Rajeev Gupta and his two servants namely accused Shyam Singh and accused Bhola Nath washed the car and destroyed the material evidence which was present on the car in form of blood, flash pieces and finger prints. Ld. Defence Counsel have drawn my attention to the definition of Section 201 IPC.
Sh. G. P. Thareja, adv. argued that the first ingredient of this offence is that the accused should have reasons to know that an offence has been committed. It is argued by Ld. Defence Counsel that there is no evidence to show that accused persons SC No. 25/99, FIR No. 17/99 70 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 had knowledge or reason to know that the offence has been committed. It is argued that at the most they found a damage vehicle parked in their house upon which flesh pieces and blood stains were present. A vehicle can be damaged and it can have blood and flesh pieces due to an accident with animal also. It is argued that presence of stray animal on Delhi roads is not uncommon. Therefore at the most the evidence on record is that accused had the knowledge of an accident. It is argued by Sh. G. P. Thareja, adv. that committing an accident is no offence. I have considered the submissions of Ld. Defence counsel and I most humbly disagree with the submissions of Ld. Defence Counsel. Section 201 starts with word "whoever, knowing or having reasons to believe that an offence has been committed........." It means that prosecution need not to prove that it was brought to the knowledge of an accused by someone that an offence has been committed. The ingredients of the offence would be fully satisfied if prosecution is able to show that a particular accused was having the reasons to believe that an offence has been committed. In the present case the vehicle was badly damaged. Blood stains and flash was available on the vehicle. In fact the finger prints were also available. In such a situation man would have the reasons to believe that some human being might also have been killed by the present vehicle, though it may later on turn out that it was simply an accident. It is not the case of accused Rajeev Gupta, Bhola Nath and Shyam Singh that accused Sanjeev Nanda and Manik Kapur and Sidharth Gupta, who is the son of Rajeev Gupta had simply stated to them that their vehicle had hit stray animal. In such a situation I am convinced that accused persons have reasons to believe that some criminal offence involving death of human beings had taken place. I may point out that Sidharth Gupta is the son of Rajeev Gupta himself. He was the best persons to be brought as defence witness by SC No. 25/99, FIR No. 17/99 71 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 accused persons to prove as to what had been stated by Sidharth Gupta, Sanjeev Nanda and Manik Kapur as to how the vehicle was damaged and why it is having blood stains and flesh pieces. I may point out that Sidharth Gupta has been arrayed as an accused, but later on was discharged, but Sunil Kulkarni has testified that he was one of the occupants of the car.
In AIR 1975, SC 1703, Gajender Singh Vs State of UP, the Supreme Court held that if a witness is available to an accused and he does not produce him, the same is the strongest possible circumstance to discredit the defence version.
I may point out that there has been a special effort to destroy the evidence. Inspector Jagdish Pandey has testified in his evidence that the backside number plate of BMW car was missing . A perusal of videography would also show that on the back side of the BMW car, the number plate was not visible. The front side number plate had fallen on the road at the time of the hitting the vehicle with the unfortunate persons. The videography would show that the back side no. plate of the car is missing. The space for back side number plate of the back car is such that it does not show any damage. Therefore in fact it is not possible that it could have been hit and got damaged due to accident. The fact that non visibility of the number plate is an indicator that effort was made to remove a number plate so that no one can identify the number of the car. I make it clear that charge for removing the number plate has not been framed. Therefore conviction cannot be placed on record for removing the number plate but these circumstances can be taken in consideration to assess as to what was the intention of the accused persons.
SC No. 25/99, FIR No. 17/99 72 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
It is not in dispute that accused Shyam Singh was a
chowkidar in 50 Golf Links at that time. Who removed this
number plate is in special knowledge of this man. SI Jagdish Pandey testified that when he reached 50 Golf Link, the water was coming out of that house. The videography would show that the floor/ pathway where the car was parked appears to be washed. The Finger Proficient who came at about 10 am also testified that the car was wet. The accused persons as well as the defence witness namely DW9 Sudhir Sareen have stated that the car was not washed. In view of the presence of positive evidence ie the testimonies of the witnesses and the wet floor where car was parked, the testimonies of the defence witnesses and the statement of accused persons u/s 313 CrPC on this point stand falsified. This falsity of defence is an additional reason to support the prosecution case and it serves not only a corroboration to the prosecution case but also fills up the missing chain of circumstances against all the accused namely Rajeev Gupta, Shyam Singh and Bholanath. I refer to the judgment of Supreme Court Swapan Patra v. State of West Bengal, (1999) 9 SCC 242, Supreme Court said that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found not to be true then the same offers an additional link in the chain of circumstances to complete the chain. The same principle has been followed and reiterated in State of Maharashtra vs. Suresh, (2001) 1 SCC 471, where it has been said that a false answer offered by the accused when his attention was drawn to a circumstance, renders that circumstance capable of inculpating him. Supreme Court has further held in this case that in such a situation false answer can also be counted as providing a missing link for completing the chain. The aforesaid principle has been again followed and reiterated in Kuldeep Singh and others vs. State of Rajasthan, 2000 (5) SC No. 25/99, FIR No. 17/99 73 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 (SC) 161.
In Anthony D'Souza vs.State of Karnataka 2003 CRI. L. J. 434, The full Bench of Supreme Court consisting of Hon'ble R. C. Lahoti, Brijesh Kumar and H. K. Sema, JJ. opined in para 15 as under :
"By now it is well established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under 313 against the established facts that can be counted as providing a missing link for completing the chain".
I may point out that DW9 Sudhir Sareen examined by Rajeev Gupta are very categorical in stating that the car was not washed. None of these witnesses and none of these accused persons have explained as to how the floor on which the vehicle is parked is seen wet in videography. In statement u/s 313 CrPC accused Rajeev Gupta has stated that false evidence was fabricated against them at the instance of senior police officials. Similarly accused Shyam Singh and Bhola Nath have testified that police had involved them due to vested interest. However, no reason has been shown as to why police would do so.
Ld defence counsels have drawn my attention to the contradictions in the statement of the witnesses. It is argued that in their statements u/s 161 CrPC, witness Jagdish Pandey , Inspector Vimlesh Yadav the SHO Lodhi Colony and SI Kailash Chand the initial Investigating Officer have nowhere stated that they had seen accused Rajeev Gupta, Shyam Singh and Bhola Nath washing the car. It is argued by Ld defence counsels that supplementary statement U/S 161 CrPC of these witnesses were recorded on 30.3.99 ie after about 3 months from the incident.
SC No. 25/99, FIR No. 17/99 74 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
Ld defence counsels have referred to the case law of Delhi High court that statement U/S 161 CrPC recorded after a long time is unworthy of credence.
I am of the opinion that a mechanical view cannot be taken that if a supplementary statement is recorded subsequently, the same becomes unworthy of credence. In fact the court is not to see whether statement U/S 161 CrPC is unworthy of credence, rather the court is to consider as to whether the testimony made by a witness in the court is trustworthy or unworthy of credence. In assessing the testimony of witness in court, the supplementary statement recorded U/S 161 CrPC of of a witness after a long time, is only one factor to be taken in consideration. However, the court would not throw away the legally admissible evidence of truthful witness only on account of this reason. I may point out that in AIR 1986 Supreme court 990, the supreme Court did not discard the statement of main eye witness only on the ground that the same was recorded by the police after 56 days of the incident.
In fact each case has to be judged in the backdrop of its own peculiar features. I have already stated that this particular case is one of those cases which highlights the degradation which has crept into the criminal justice system. Conduct of the investigating agency is also under shadow of doubt. A careful perusal of the entire investigation and the case diaries as well as the judicial record, it would become abundantly clear that although initially the police acted with a great responsiveness which is expected from a law enforcing agency. But very soon a great deal of reluctance on the part of the investigating officer starts appearing in the case. Though from outward, it was a show of strength and determination but the silent termites had SC No. 25/99, FIR No. 17/99 75 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 started eating the wood from in side. The accused persons have examined one Karan Gaurav as DW5. In cross examination by Ld Special Public Prosecutor, he admitted that he was a son of a former Commissioner of Police. He testified that he had reached 50 Golf Links at about 8.30 or 9 am. Does it indicate as to why police suddenly developed cold feet and indulged into a most inefficient investigation almost at every step I am recounting the facts and placing the same on record.
1. On 11.1.99 SI Kailash Chand moved an application before a Metropolitan Magistrate. The application is EXPW58/F. In this application, SI Kailash Chand has written two facts. First, accused Rajeev Gupta, Bhola Nath and Shyam Singh washed the vehicle and secondly destroyed the evidence ie blood etc. and changed the rear number plate of the vehicle BMW so that the vehicle cannot be identified.
But this was only an outward show that they won't spare anyone but on the other hand the Investigating Officer SI Kailash Chand did not record anything to this effect in the statement under Section 161 CrPC. I point out to the statement of SHO Vimlesh Yadav that she had stated this SC No. 25/99, FIR No. 17/99 76 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 fact to the Investigating Officer but he did not record it.
2. A notice U/s 133 Motor Vehicle Act was given to Sonali Nanda who stated as to who was driving the vehicle at the time when offence took place .
This Kalendra is EXPW60/5issued by SI Ulhas Giri.
However, Ms Sonali Nanda refused to accept this notice and even declined to place service on the notice. Thereafter on 11.1.99 again, the Investigating Officer gave a notice U/S 133 Motor Vehicle Act but still Sonali Nanda refused to take the said notice. However, no action was taken against her. It is pertinent to note that for refusing to cooperate with the investigation, she could have been prosecuted under various provisions of Indian Penal Code.
However, the Investigating officer did not proceed in this direction.
This is interesting to note that the charge sheet was prepared by SHO on 25.3.99 and till then no action had been taken against SC No. 25/99, FIR No. 17/99 77 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 her. On the objection of the prosecution, one Kalendra U/S 5/181 and 133/179 Motor Vehicle Act which is punishable only with minor fine was prepared on 2.4.99. Further more, instead of prosecuting the said kalendra separately in the court of Magistrate, it was annexed with the main challan without referring Sonia Nanda as an accused in the main charge sheet. To my mind, this was an offence where she should have been prosecuted U/S 179 Indian Penal Code which provide imprisonment up to six months if a person refuses to answer any question to a public servant who is authorized to ask such question.
3. It would be interesting to note what kind of charge sheet has been filed in the present case which is being monitored by the senior officers of the police department. The charge sheet which was prepared on 25.3.99 does not even mention as to what act was done by Bhola Nath, SC No. 25/99, FIR No. 17/99 78 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 Shyam Singh and Rajeev Gupta.
The charge sheet simply writes that there is sufficient material against them U/s 201/34 IPC.
It is interesting to note that in the charge sheet there is no mention of missing number plate of the back side of BMW car, although it has been mentioned in the application for police remand Ex.PW58/F. It has been specifically mentioned that accused Rajeev Gupta, Bhola Nath and Shyam Singh washed the vehicle and destroyed the evidence i.e. blood etc. and the changed the rear number plate of vehicle BMW so that vehicle cannot be identified. But when the charge sheet was filed, there was no mention of changing the rear number plate. In evidence also, only one fact has come on record that the rear number plate was missing. I was constrained to read the case diaries and from the case diary dated 10.1.99, it is revealed that in fact one of the accused had taken out the back side number plate of the car and thereafter refixed it at the proper SC No. 25/99, FIR No. 17/99 79 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 slot in such a manner that the back side of the number plate is visible to a looker and the side on which the number is written is concealed because the said side is now touching the body of the car.
This evidence being a part of case diary cannot be read in evidence but it does not need great imagination to understand as to why this piece of evidence was not put forth by the investigation and the prosecution. I may stress here that this type of state of affair in the police department has become quite common wherever influential persons are arraigned as an accused. I have no doubt about it that this is not simply a negligence but deliberate tactics.
4. This reluctance of the police officials further appears even during trial. One application was moved during trial by the prosecution to direct the accused Sanjeev Nanda to give his blood sample. I left this aspect to be investigated by the police and directed them to exercise their SC No. 25/99, FIR No. 17/99 80 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 powers U/S 173 (8) CrPC. In recent amendment, police have got the power to use reasonable force against an accused to take his blood sample. Police simply sent a notice to accused Sanjeev Nanda who refused to give the blood sample. At that time the prosecution insisted that court should use its own powers and direct accused Sanjeev Nanda to give the blood sample. I take this opportunity to explain as to why, despite being empowered to direct, the accused Sanjeev Nanda to give blood sample, I did not pass any specific order rather it left to the police to use its own powers. I was just checking the enthusiasm or reluctance of the police in investigating the case. It is a different matter that fearing an adverse inference might not be made, accused himself furnished the blood group report.
There were many other points which are of minor nature which I am not inclined to discuss for sake of brevity. But after perusal of the entire judicial file and police file, I am of the considered opinion that this is simply not a case of hobnobbing between defence counsel and prosecution but also at some stage SC No. 25/99, FIR No. 17/99 81 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 in the back ground, the Investigating Officer has been influenced who being deliberately indulged in such perfunctory investigation that it causes serious prejudice to the prosecution. In background of these circumstances , the evidence on record has to be assessed. The principle of weighing the evidence on golden scales cannot be applied here because this trial is an example where the entire criminal justice and entire trial has been hijacked by the rich and influential accused persons.
Once this scenario is emerging, taking technical view of the facts and circumstances is bound to lead to miscarriage of justice. However, there appears to be some ray of hope. Although while delivering Judgment, the courts normally do not refer to the internal departmental notings and communication between Prosecuting Branch and the Investigating Officers. However, I would not refrain myself to point out that one additional Public Prosecutor checked the whole challan and raised serious objections in the investigation. It appears that he saw through the game. I am not reproducing those objections. Suffice it to say that pinched by these objections, the police had no option but to prepare a Kalendra against Sonali Nanda (though it was concealed in the main challan). Police was constrained to record further statement of the police officials who had seen accused Rajeev Gupta , Shyam Singh and Bhola Nath washing the car. Despite this fact that further investigation was conducted by the police, no fresh charge sheet was prepared, rather the new statements were attached with the challan and the charge sheet was filed in the court. It is common to see that investigations are faulty. It is also common to see that the investigating Officer is inefficient. It is also frequently seen that the Investigating Officers commit blunders. But all these are forgivable because there is no oblique motive. However this was a high profile case SC No. 25/99, FIR No. 17/99 82 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 and the record shows that the same was being monitored by the top police officers. Therefore, such level of inefficiency is not incidental, rather to my mind, the same appears to be deliberate. In such state of affair, the court has only one option ie to abandon the narrow and winding lane of technicalities and travel on the royal road of justice.
Ld defence counsels have place heavy reliance on the wireless messages. It is argued by defence counsels that in the wireless message, it is not stated by inspector Jagdish Pandey that he had seen the vehicle being washed. It is argued that even if it is presumed that the vehicle was actually washed, it appears from the wireless messages that the police officials reached when it had already been washed and therefore it cannot be said as to whether they actually had seen the accused persons washing the said vehicle. It is argued by Ld defence counsels that Rajeev Gupta was sleeping up to 9 am and at least he could not have washed the vehicle. It is further argued by Ld defence counsels that it is not possible that Rajeev Gupta is one of the richest persons of Delhi would himself wash the vehicle when he has two servants.
Before considering these submissions, I reproduce the relevant wireless messages. These wireless messages were produced by the prosecution on the application of Ld defence counsels during trial and I treated these messages to be admitted documents. The first message was flashed from 6 am to 6.10 am which is reproduced as under :
6.00E1 T27 char aadmi majrub hein jinhe gari medical lekar gai hei, do ki halat gambhir hei, do hosh mein hein SC No. 25/99, FIR No. 17/99 83 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 Jo T 27 Sahab ke saath moke ja rahe the to raste se Hi diesel girta hua gaya tha, jis per hamne peechha karte Huei 50 no. golf linke per pahunche jo wahan per Gaari accidental BMW kale rang thi Ismein park lane Ka sticker laga hua tha, jo kothi mein khari mili Jiske bare mein darwaja nahin khola chowkidar se Poochhtachh ki gai jiski ittla E1 wa E2 ko Di gai'' Second relevant message is flashed by T27, Inspector Jagdish Pandey at 7.35 am which is reproduced as under:
Date 10.1.99 Time 7.35 CRDD no. 1305 " 50 no. Golf Link per T 27 Accidential spot Lodhi hotel se gaari gire huei tel ke spot ka peechha karte hue pahuncha jahan ek accident mein involved gaari taja dhuli hi wa tirpal se dhaki hui paai gai wa kuchh aur garia bhi khari hei'' Third relevant message is flashed at 7.45 am which is as under :
' 'Is samay S3 wa SHO Lodhi Colony moke per Maiy staff aa gaye jinhe gari ke bare mein avgat Karaya gaya jo gaari accident karke bhag gait hi Jis gaari ko pakar kar SHO Lodhi Road ke hawale Ki gai"
These messages have been heavily relied upon by Ld defence counsels. While interpreting these wireless messages, one thing must be kept in mind. The process is that an event is seen by a PCR police official and then orally conveyed on the SC No. 25/99, FIR No. 17/99 84 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 wireless. The police control room records the same verbatim in their official form/register. When an offence takes place, there is flurried activities on part of the police official. There is always a possibility of slip of tongue on part of the person giving message. There is possibility that such person sending the message may leave out material details. There are all the possibilities that the person who is recording the message in his diary/register or form may make mistake in writing the message. This situation is amply borne out from the fact that in one message by Inspector Jagdish Pandey, it is stated that an eye witness had told him that a red colour contessa had committed the offence. This message was conveyed from the PCR T27 at 5.23am. Therefore accuracy of these messages should not be expected. However, I would like to read these messages as it is. The first fact to be considered is that the first message which was sent from 50 Golf Links by PCR T27 is at about 6 am. In this message it is stated that at 50 Golf Links, one accidental BMW car of black colour having a sticker of Park lane was found parked but darwaja was not opened. Inquiry was made from chowkidar. Reading of this DD entry would show that at 6.10 am the car was not covered with tarpaulin. It also shows that the information about the vehicle and the Park Lane sticker was received by the police officials from the chowkidar/ security guard of that house. The next entry at 7.35 am from T27. The message flashed by Inspector Jagdish Pandey. It gives the status of the vehicle at 7.35 am. This message only means that the vehicle has been washed and has been covered with tarpaulin .
Ld defence counsels have pointed out that SHO has reached at 7.50 am when the vehicle had already been washed and that how she could have seen the accused persons washing the SC No. 25/99, FIR No. 17/99 85 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 vehicle. Ld defence counsels have pointed out to the message flashed at 7.50 am in which it is stated that SHO Lodhi Colony has reached at the spot. I am of the opinion that Ld defence counsels are reading this message at 7.50 am out of context. In fact SHO Lodhi Colony had reached the spot before 7.50 am. This fact has been mentioned in the message flashed at 7.45 am in which it is stated that SHO Lodhi Colony has reached the spot with staff and the vehicle had been placed under her custody.
From the reading of these two DD entries, it would be clear that at 6.10 am, there was no tarpaulin on BMW car, whereas at 7.35 am the car was seen with a tarpaulin. In the message flashed at 7.35 am by Inspector Jagdish Pandey, it has been mentioned that the vehicle has been washed. If the vehicle was covered with tarpaulin at 7.35 am, how Inspector Jagdish Pandey reached to a conclusion that it has recently been washed ( Taja Dhuli Hui) It has only one meaning that inspector Jagdish Pandey had seen that vehicle was being washed and at 7.35 am he found that the same has also been covered with a tarpaulin.
In view of these circumstances I am convinced that Inspector Jagdish Pandey as well as SHO Vimlesh Yadav had seen the vehicle being washed. There is no reason as to why police officials would falsely arrest these accused persons. As per the defence, police had even apprehended Mr Sareen but let him off. If the police was so biased due to death of a few police officials, why it should let go some persons. I am of the opinion that till apprehension of all the accused persons, the investigation was going on right track and is fully credible. The blemish started appearing in the investigation thereafter due to obvious reasons.
SC No. 25/99, FIR No. 17/99 86 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
Therefore I am convinced that accused Rajeev Gupta, Bhola Nath and Shyam Singh had reasons to believe that an offence has been committed. Otherwise there was no reason that the back side number plate of the BMW car should not visible. The blood and the flesh parts on the body of the vehicle were material pieces of evidence to prove that human beings have been killed. Otherwise there was no reason as to why this car should have been washed by the accused persons. The defence witness namely Karan Gaurav, Karan Singh and Sudhir Sareen are not reliable being interested witnesses and due to the reason that testimony of DW7 Karan Singh and DW9 Sudhir Sareen stands unworthy of credence on account of their false testimony that there was no washing of the car. Testimony of DW5 Gaurav Karan is unworthy of reliance because it is unbelievable that when police has reached at 50 Golf Links, the police officials or the servants of Rajeev Gupta would let him sleeping in his room. It would be strange that police and servants did not wake him up till this witness goes up stairs and wakes him up. In these circumstances, I am of the opinion that prosecution has proved its case beyond reasonable doubt that accused Rajeev Gupta, Shyam Singh and Bhola Nath were having reason to believe that offence has been committed involving BMW car and by washing the car due to which the blood on the car No. M312LYP was made to disappear, though some blood and some flesh still remained on some parts of the car.
Prosecution has not been able to lead any evidence against accused Manik Kapur except his one finger print on the outer body of BMW car. This finger print does not prove anything. Therefore, I acquit accused Manik Kapur.
SC No. 25/99, FIR No. 17/99 87 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
In view of this discussions, accused Sanjeev Nanda is convicted U/S 304 (II) IPC.
Accused Rajeev Gupta, Bhola Nath and Shyam Singh are hereby convicted U/s 201 (II) IPC.
Announced in open court
On 2.9.08 VINOD KUMAR
ADDL. SESSIONS JUDGE
NEW DELHI
SC No. 25/99, FIR No. 17/99 88 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
THE COURT OF SH. VINOD KUMAR
ADDITIONAL SESSIONS JUDGE, NEW DELHI
Sessions Case No. 25/99
FIR No. 17/99
PS Lodhi Colony
State Vs 1. Sanjeev Nanda
S/o Sh. Suresh Nanda
R/o D108 Defence Colony, New Delhi.
2. Bhola Nath
S/o Sh. Moti Lal
R/o 103, Sunder Nagar, New Delhi.
3. Shyam Singh Rana
S/o Sh. Nandan Singh Rana
R/o 50 Golf Link, New Delhi.
4. Rajeev Gupta
S/o Sh. Ved Parkash Gupta
R/o 50 Golf Link, New Delhi.
ORDER ON SENTENCE
5.9.2008
Present: Sh. Rajiv Mohan, Special Public Prosecutor with
Sh. Naveen Kumar, APP for State.
Convict Sanjeev Nanda from J.C. with counsel Sh. Ramesh Gupta, adv., Prem Kumar adv., Sh. Sandeep Kapur adv., and Sh. Mehul Milind adv.
Convict Rajeev Gupta on bail with counsel Sh. S. S. Gandhi Ld. Senior adv. Along with Sh. Mohit Mathur adv.
Convict Bhola Nath and Shyam Singh on bail with counsel Sh. G. P. Thareja adv., Sh. Sunil Magan adv., and Sh. J. P. Singh adv.
SC No. 25/99, FIR No. 17/99 89 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
Sh. Rajiv Mohan Ld. Public Prosecutor has prayed for maximum sentence to the convicts on following grounds :
1. The offence is of very serious nature and in the judgement, it has been opined that the offence almost touches the borders of Section 300(4) IPC and the such offences are a grave threat to the public on roads.
2. A leniency view in fatal accident cases has been deprecated by the Supreme Court and the present case is a case of higher gravity than a fatal accident case.
3. That the convict had indulged in winning over the witnesses and have thwarted the course of justice.
On the other hand Sh. Ramesh Gupta, adv. for convict Sanjeev Nanda has prayed for leniency while sentencing the convicts which are as follows :
1. The convict was only 19 years of age at the time of offence.
2. That this court has observed in the judgement that the convict had no desire to kill those persons.
3. The family of convicts have already paid Rs.10 lacs to the family of each deceased and Rs.5 lacs to the injured vide order of the High Court after a very short period from the offence.
4. That convict Sanjeev Nanda has no previous conviction.
5. The jail record of the convict during the custody period had been exemplary. Ld. Counsel has filed two affidavit of two NGOs and has submitted that during the custody period the convict had been actively involved in constructive and creative work and this convict is an asset to the society and further detention in jail would be great loss to the society as well as to the family of the convict.
6. Sh. Ramesh Gupta, adv. for convict Sanjeev Nanda has raised a strong objection to the submissions of Additional Public Prosecutor that convict is indulged in winning over the witnesses. It is argued by Ld. Defence Counsel that convict SC No. 25/99, FIR No. 17/99 90 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 Sanjeev Nanda had no opportunity during the entire trial to answer this charge and therefore if any attempt has been made to win over the witnesses, convict Sanjeev Nanda cannot be held liable for it.
7. Sh. Ramesh Gupta, adv. has argued that under Section 304 (II) IPC, the court has wide discretion starting from imposition of fine only and it may range upto inflicting of sentence upto ten years. Sh. Ramesh Gupta adv. argues that in view of the totality of the circumstances the convict may be released on imprisonment which he has already undergone during trial which come out to be about nine months.
Sh. Prem Kumar,adv. for convict Sanjeev Nanda has added following points :
1. That this court has observed in the judgement that the convict is a grand son of a illustrious figure namely Admiral S. M. Nanda, who had rendered invaluable service to this Nation.
2. That he had suffered enough on account of over zealous police who booked him under Section 304(1) IPC unjustly and thereafter faced persecution by a hostile media.
I have given thoughtful consideration to all the submissions of Ld. Defence Counsels. The determination of sentence is quite a difficult job. The best course to determine the quantum of punishment is to see the "precedence" of a similar case. To my mind the nearest case which has come to the notice of this court is Alister Anthony Pareira's case decided by Bombay High Court. The said case was also a case of drunken driving. In the said case the car had run over seven persons sleeping on the footpath and killed them. In the said case Pareira was also a young man and he also tried to flee away from the spot. The blood of Pareira was found to contain 0.112% W/V Ethyl alcohol. In the said case Bombay High Court awarded a punishment for three years and a fine in the sum of Rs.5 lacs. If the present case is compared with Pareira's case, it would be SC No. 25/99, FIR No. 17/99 91 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 found that the case of Sanjeev Nanda is much more graver than the said case. Convict Sanjeev Nanda was found with presence of Ethyl alcohol to the extent of 0.115% in his blood. Whereas the said case was on lower end of Section 304(II) IPC, whereas in this case, I have written that the offence is almost touching the border of Section 300 (4) IPC. In Pareira's case people were sleeping on the foot path, whereas in this case people were standing on the road which means that the convict was in a position to clearly see them on the road. Pareira's car stopped at the spot, whereas Sanjeev Nanda checked the car under which the injured were entangled and were crying and thereafter again drove away the said car. Therefore it is prayed by Ld. APP that circumstances require the sentence of higher end.
Now I would see as to whether the factors pointed out by convict Sanjeev Nanda can be taken as mitigating fact. First argument is that the convict was only 19 years of age at the time of offence. Normally the young age of a convict at the time of commission of offence is considered as a factor towards granting leniency in sentence but in case of Sanjeev Nanda it would not be applicable. As per statement under Section 313 CrPC dated 19.11.2007, convict Sanjeev Nanda has answered to question no.41 and no.44 by stating that during those days he used to study in USA and he had a driving license issued from Boston USA. This shows that convict Sanjeev Nanda was already exposed to a Western culture where drunken driving is taboo and if someone indulges in it the consequences are very harsh. A person who had got driving license from USA can be considered to be having a higher degree of knowledge of consequences of drunken driving. Therefore on account of his young age, no benefit can be given to him.
I do not find any force in the arguments of Ld. Defence Counsels that convict Sanjeev Nanda was unjustly implicated under Section 304 (1) IPC. In fact it is not uncommon that the drivers of the motor vehicles specially with criminal background hit the police officials on SC No. 25/99, FIR No. 17/99 92 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 checking duty deliberately and have even killed them. Therefore when the police found a few police officers lying dead at the spot, the police had just reasons to register a case for intentionally causing deaths.
The grant of handsome compensation to the families of the victims after a very short duration from the offence, however leans heavily in favour of convict Sanjeev Nanda. I feel that though the victims have been compensated but the primarily accountability of the convict Sanjeev Nanda is towards the society. The question is whether a man on the road is safe and whether the drunken drivers would keep on committing such offences. This accountability to the society can only be suitably answered if a substantial jail term is provided to him, though it would not be appropriate to award him a lighter sentence.
The prosecution has argued that the way the criminal justice system has been polluted by the accused, a very deterrent punishment should be awarded to the convicts. Sh. Ramesh Gupta, adv. has argued that in fact the witnesses like Sunil Kulkarni should also be punished. I am of the opinion that Sunil Kulkarni himself had approached the police and stated that he had seen the incident. He repeated his case under Section 164 CrPC. His testimony has been held to be truthful before this court. However it is true he had filed false affidavits before Hon'ble High Court at various stages, but this court cannot punish him for perjury which he has committed in other courts. So far as the hostile witness Manoj Malik is concerned he himself is a victim of the offence and perhaps he could not withstand the pressures of influential persons. Therefore I do not intend to initiate any proceedings under Section 340 CrPC against any of the witnesses. However at the same time I would agree with the submissions of Ld. APP. Till now the courts had been taking into consideration only those factors which were attending the offence at the time of its commission and the antecedents of the convict. But SC No. 25/99, FIR No. 17/99 93 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 now a time has come that a new principle of sentencing has to be evolved. Where there is clear proof that the offender had indulged in winning over the witnesses, a higher quantum of punishment to such offender is the need of the day.
Balancing all these factors, I award rigorous imprisonment for five years to convict Sanjeev Nanda. Benefit under Section 428 CrPC is also given to him.
Sh. S. S. Gandhi, Ld. Senior adv. and Sh. Mohit Mathur, adv. have argued that the convict is now quite aged and if he is sent to jail, not only his family would suffer but also his numerous employees would have suffer financial losses. It is further argued that the offence of convict is of minor nature and therefore the convict be released on probation of good behaviour or with fine.
I have considered the arguments of Ld. Counsels. Normally their plea would have weighed before this court quite heavily but the question of back side number plate of the car as mentioned by me in the judgement makes the intention of the convict very very conspicuous. In fact it shows a shrewed and a calculative mind. Therefore the washing of blood from the car should be seen in background of the above stated fact as well as my observations in the judgement that this convict had also been able to manipulate the investigation. In these circumstances, I am not inclined to take a lenient view.
I therefore sentence the convict Rajeev Gupta to rigorous imprisonment for one year and a fine in the sum of Rs.10,000/ under Section 201 IPC. In default of payment of fine the convict shall undergo simple imprisonment for one month.
Sh. G. P. Thareja, adv. for convict Shyam Singh and Bhola Nath argued that both the convicts are the servants of convict Rajeev SC No. 25/99, FIR No. 17/99 94 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 Gupta and they did not have the moral courage to stand up against the wishes of their employer. Further more none of them was in a position to influence investigation or to win over the witnesses.
For the afore said reasons mentioned by me while considering the quantum of sentence of convict Rajeev Gupta, I am not inclined to release these convicts on probation of good behaviour. However I am of the opinion that the submissions of Sh. G. P. Thareja, adv. are quite weighty.
Therefore convict Shyam Singh and Bhola Nath deserve a lesser punishment. Accordingly I sentence convict Shyam Singh and Bhola Nath to rigorous imprisonment for six months and a fine in the sum of Rs.100/ each. In default of payment of fine, each convict shall undergo simple imprisonment for seven days.
I take this opportunity to say a few words more. Now when the heat of the trial will cool and dust raised by it settle down, it is necessary that all the stake holders having stake in the criminal justice system fairly take a dispassionate view of the things which have happened in the present trial and also frequently seen in a normal criminal trial. On one hand Ld. Public Prosecutor has pointed out towards the conduct of the police, prosecution and the defence. On the other hand Ld. Defence Counsels have vehemently criticized electronic media. It must not be forgotten that blame game would not lead us anywhere and it would be a wastage of time and energy.
"Blame" is a powerful weapon but "introspection" is the real remedy having therapeutic quality. In the entire judgement I have refrained from touching the details of various incidents, which have a bearing to discredit the justice delivery system. Though I am convinced that institutional sabotage of the system has been carried out, still a restrained was observed by this court lest the can of worms is opened again. Therefore I referred to a particular fact only where it was of utmost necessity. Better not blame anyone, rather take it as an SC No. 25/99, FIR No. 17/99 95 State Vs Sanjeev Nanda etc. Judgement Dt. 2.9.2008 opportunity for examining our system. I am reminded of a saying of Kahlil Gibran, who states in his book The Prophet that when a string breaks, the weaver does not blame the string, rather he examines the entire loom.
All the advocates and senior advocates appearing in this case have high standing and have contributed a lot in the field of law. But "the best" is yet to come out from them. Their greatest contribution (which I believe would definitely be forthcoming) would be that they rise to the occasion and examine the entire criminal justice system as well as all the issues including the issues concerning media. I may point out that for us the "rule of law" is an article of faith and not a commodity of convenience. If we do not keep our faith in the lofty principle of "rule of law", our future would be like what is being faced by a few neighbouring countries these days. With these observations I close my judgement, while summing up all the sentences again as under :
1. The convict Sanjeev Nanda is sentenced to rigorous imprisonment for five years with benefit under Section 428 CrPC.
2. The convict Rajeev Gupta is sentenced to rigorous imprisonment for one year and a fine in the sum of Rs.10,000/ under Section 201 IPC. In default of payment of fine the convict shall undergo simple imprisonment for one month.
3. The convicts Shyam Singh and Bhola Nath are sentenced to rigorous imprisonment for six months and a fine in the sum of Rs.100/ each. In default of payment of fine, each convict shall undergo simple imprisonment for seven days.
File be consigned to record room.
Announced in the open
SC No. 25/99, FIR No. 17/99 96 State Vs Sanjeev Nanda etc.
Judgement Dt. 2.9.2008
court on 5.9.2008.
(VINOD KUMAR)
Additional Sessions Judge
Patiala House Courts
New Delhi