Delhi District Court
S/O Sh. Mohd. Jabbar vs State (G.N.C.T Of Delhi) on 6 October, 2010
1
IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE, ROHINI, DELHI
Criminal Appeal No. 15/2010
Abdul Rashid
S/o Sh. Mohd. Jabbar,
R/o Village Kakapura, PS Pulwama,
District Pulwama, Jammu & Kashmir ....Appellant
VERSUS
State (G.N.C.T of Delhi)
And in the matter of
FIR NO: 414/95
Under Section: 279/304A IPC
P.S: S.P. Badli ....Respondent
JUDGMENT
1. The present appeal under Section 374 of the Criminal Procedure Code is filed against the judgment dated 22/07/2010 and order 2 on sentence dated 26/08/2010, passed by Ld. Metropolitan Magistrate, whereby the revisionist herein was convicted for offences under Sections 279/304A IPC and sentenced to undergo 3 months S.I. and fine of Rs. 1,000/ for offence u/S. 279 IPC; and 1 year S.I. and fine of Rs. 3,000/ for offence u/S. 304A IPC and in default of payment of fine to also undergo S.I. of 3 months. Aggrieved with the same, the present appeal is preferred by the appellant.
BRIEF FACTS
2. The prosecution case is that on 19.07.1995 at about 6.15 p.m at Sanjay Gandhi Transport Nagar near railway crossing within the jurisdiction of P.S: Samaipur Badli, accused was driving truck no. JK01 A3620 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving the truck in the same manner, he caused accident resulting into the death of Ram Dass not amounting to culpable homicide.
3
NOTICE U/S 251 Cr.P.C AND PLEA OF THE ACCUSED
3. Notice for the offences punishable U/s 279/304A IPC was given to the appellant/convict by Ld trial court to which he pleaded not guilty.
PROSECUTION EVIDENCE
4. In support of its case, the Prosecution has examined as many as 7 witnesses in all namely PW1 Ram Karan, PW2 Dr B.N. Acharya, PW3 SI Jai Singh, PW4 HC Sita Ram, PW5 Durga Dass, PW6 Ct. Ranbir Singh and PW7 SI V.N. Mishra.
PLEA AND DEFENCE OF ACCUSED
5. In the statement U/s 281 Cr.P.C, the appellant/convict has denied the entire incriminating evidence which was read over to him by Ld Metropolitan Magistrate. He submitted that though he was driving truck No. JK01A3620 but no accident took place with his truck. The police caught him and falsely implicated him in this case.
6. In support of his case, appellant/convict has examined two 4 witnesses in all namely DW1 Salim and DW2 Nasir Ahmad.
ARGUMENTS AND FINDINGS
7. The contention of learned counsel for the appellant is that the trial court did not properly appreciate the facts of the case and the evidence on record. He submitted that the trial court erred in not considering that PW1 Ram Karan, did not support the prosecution case as he submitted in his examinationinchief that he does not remember the exact date, month and year of the incident and also did not remember the registration no. of the truck. Also he did not say that the appellant was driving the vehicle rashly and negligently. It was averred that PW6 Ct. Ranbir Singh stated in his examinationinchief that statements of 23 independent witnesses/public persons who gathered near the accident site were also recorded but no such statements are on record and no such persons have been called in the witness box. It was urged that even Dr. B.N. Acharya, PW2, stated in his examinationinchief that the injuries sustained by the deceased could be due to fall. It was also urged that the 5 PW5 Durga Das, also did not bring the negatives of the photographs on record. It was contended that there were also several contradictions in the statements of prosecution witnesses, which the trial court failed to take note of. It was urged that the prosecution story is nothing but a cock and bull story of the police officials to falsely implicate the appellant. It was also urged that the sentence and fine imposed by the trial court is also exorbitant and disproportionate. It was submitted that the incident took place in 1995 and since then 15 years have lapsed, he has also not disobeyed the terms of his bail and has never been involved in any other case before and thus should be let out on probation of good conduct.
8. Refuting the same, Ld. Chief Public Prosecutor submitted that there is no infirmity in the judgment and the order of conviction passed by the trial court. He urged that prosecution by convincing evidence has proved its case against the appellant beyond reasonable doubt for the offences punishable U/s 279/304A IPC. The present appeal has no merits and should be dismissed.
6
RESULT OF THE CASE
9. I have heard Ld. Counsel for the revisionist and the Ld. Chief Public Prosecutor for the State and have perused the trial court record.
In the instant case there is no dispute visàvis the fact that at the alleged time of the accident, the accused was driving the truck bearing registration no. JK 01 A 3620, the offending vehicle and the same has been admitted by the accused appellant in his statement under S. 313 CrPC.
10. It is well established principle of law that the prosecution story shall stand on its own leg. In this regard in Bhagirath v. State of M.P. AIR 1976 SC 975 it was held as under:
The prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court, on its own, make out a new case for the prosecution and convict the accused on that basis.7
11. It is equally well settled that the prosecution has to prove the case beyond reasonable doubt. Rashness or negligence is essential requirements for proving the guilt of the accused under Ss. 279/304 A/338 IPC.
12. On perusal of the record it is manifest that PW1 Ram Karan, the eyewitness stated in his examinationinchief that the truck driven by the accused was coming in a fast speed and then hit the deceased who was crossing the road. What is material and has been rightly taken note of by learned trial court is the statement of PW1 that the victim was dragged for about 10 meters after accident before appellant/convict stopped the vehicle in question. This fact coupled with high speed of the vehicle leads to the convincing inference that the vehicle in question was being driven by the appellant/convict in a rash manner. The statement of the PW1 Ram Karan that he does not remember the date, month and year of the incident is of no effect as due to lapse of time between the date of the accident and deposition before the court, the human memory 8 naturally tends to fade. Also, the minimal inconsistency as regards the time of the incident is of no effect. In this regard in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat A.I.R. 1983 (SC) 753 it was held:
".................Over much importance cannot be attached to minor discrepancies. The reasons are obvious : (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.9
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when the all 10 important "probabilitiesfactor" echoes in favour of the version narrated by the witnesses."
In Rizan v. State of Chhatisgarh, A.I.R. 2003 (SC) 976 the following observations were made:
"12. Stress was laid by the accused appellants on the nonacceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other coaccused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in 11 omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Ali v. The State of Uttar Pradesh (AIR 1957 SC 366)). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurucharan Singh and another v. State of Punjab (AIR 1956 SC 460)). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a deadstop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in 12 each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted (sifted ?) with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Navata and another v. The State of Madhya Pradesh (1972(3) SCC 751) and Ugar Ahir and others v. The State of Bihar (AIR 1965 SC 277)). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and others v. The State of Punjab (AIR 1975 SC 1962)). As observed by 13 this Court in State of Rajasthan v. Smt Kalki and another (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory, due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and others v. State of Bihar etc., 2002(2) RCR(Criminal) 567 (SC) : (2002(4) JT (SC)
186) and Gangadhar Behera and others v.
State of Orissa (2002(7) SC 276). Accusations have been clearly established against accusedappellants in the case at hand. The Courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned."
14In Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble AIR 2003 SC 4567, it was observed by the Apex Court as follows:
"27. As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr., AIR 1981 SC 1390, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc. (2002 (4) JT (SC) 186); Gangadhar Behera and Ors. v. State of Orissa, 2002 (7) Supreme 276 and Rizan and Anr. v. State of Chhatisgar (2003 (2) SCC 661 ."15
13. Clearly, due to lapse of time between the accident and the date of the evidence/statement before the Court, some minor/normal discrepancies are bound to creep in the testimony of witnesses.
14. Be that as it may, from the aforesaid it is manifest that the accused appellant blindly, without seeing as to where he was driving or without blowing horn to caution others on the said street bumped in to the deceased and even after hitting the deceased did not stop and dragged him for a good 10 meters distance and due to his negligence/ speed and his act resulted in the death of the victim. Clearly, the appellant was rash while driving the vehicle in question at the relevant time.
15. The deceased person Ram Dass died due to vehicular accident is proved from the statements of PW2 B.N. Acharya, who conducted postmortem of deceased person Ram Dass. In the cross examination as well the witness PW2 clearly and particularly stated that the deceased died due to the injuries sustained due to the fall in a vehicular accident and also stated generally that such injuries also arise 16 due to a fall. The defence of the appellant was rightly discarded by learned trial court giving good reason. I concur with findings of learned trial court in this regard. The learned trial court has correctly appreciated facts of the case and law in so far as conviction of appellant for the offence punishable U/s 304A IPC is concerned.
16. Therefore, clearly, the deceased person Ram Dass died due to the rash and negligent act of the appellant and hence conviction of the appellant under Section 304A IPC is upheld.
17. One technical question that arises is whether conviction and sentence both under section 279 and section 304 A IPC is permissible under the law as the latter section is the aggravated form of the former section. If a person is guilty of an offence under s 279, IPC, and death is also caused as a result of the negligent act, he will be guilty of the offence under s 304A, IPC, because an offence under this section is a minor offence which is included in Section 304A, IPC. (See Esco Mathew v State of Kerala 1967 Ker LJ 227). An accused, convicted under s 304A, 17 IPC, therefore, cannot be convicted under section 279 IPC as the latter is a minor offence. (Shiva Ram v State 1965 All 196, (1965) 1 Cr LJ 524; Ranjit Singh v State of Haryana 1988 Chand Cr Cases 516 (P&H)) IPC. Our Delhi High Court has also taken a similar view and it was held that there was no need to impose any separate sentence for minor sentence under sections 279 because the offence under sections 304A and 338, IPC, are similar offence in aggravated forms. Thus the sentence imposed under section 279 was set aside (See Abdul Hameed v State (1990) 41 DLT 306, 307; Hamid Khan v State 1996 (1) Crimes 465 (Del). Therefore, where a person is convicted and sentenced under section 304A IPC a separate conviction under Section 279, for the minor offence which is included in the offence under s 304A, is not justified. (See, Shiv Ram versus State AIR 1965 All 196). In the light of these authorities the conviction and the sentence imposed upon the appellant/convict/accused by the learned trial court for the offence under Section 279 IPC are liable to be set aside.
18
18. Coming to the order on sentence, the Ld. Trial court awarded 3 months S.I. and fine of Rs. 1,000/ for offence u/S. 279 IPC; and 1 year S.I. and fine of Rs. 3,000/ for offence u/S. 304A IPC and in default of payment of fine to also undergo S.I. of 3 months.
19. From the aforesaid discussion, it is clear that offence under S. 279 IPC is not made out and thus sentence under S. 279 IPC of 3 months S.I. and fine of Rs. 1,000/ are set aside.
20. As far as sentence for conviction under S. 304A IPC is concerned, the trial court awarded 1 year S.I. and fine of Rs. 3,000/ for offence u/S. 304A IPC and in default of payment of fine to also undergo S.I. of 3 months. Considering that the accident took place in 1995 and the matter was decided in the year 2010, i.e. almost 16 years, I feel that 1 year S.I. and fine of Rs. 4,000/ for offence u/S. 304A IPC is appropriate keeping in view the fact that due to rash driving of vehicle by appellant, an innocent person has died. However, benefit of setoff under S. 428 CrPC should be given to the appellant.
19
21. In view of the above discussion, the appeal is partly allowed. The conviction and sentence passed by learned trial court for the offence punishable U/s 304A IPC is upheld. The conviction and sentence recorded by learned trial court under section 279 IPC is set side. Fine, if any, deposited by the appellant for the offence punishable U/s 279 IPC be directed by Ld trial court to be refunded to the appellant/convict. The order be sent to the server (www delhidistrictcourts.nic.in). The trial court record be returned along with the copy of this judgment. The file of the appeal be consigned to the record room.
Announced in the open court on this 6th day of October, 2010 (S.K. SARVARIA) Additional Sessions Judge: Rohini: Delhi