Delhi District Court
State vs Vijay Pal Singh on 24 August, 2012
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s Vijay Pal Singh
FIR No. 53/98
PS: Saraswati Vihar
U/s 279/338/304-A IPC.
JUDGMENT
A) The date of commission : 26/01/1998
of offence.
B) Name of the complainant : Smt. Santosh w/o. Sh. P.C. Garg
R/o. MD 42, Vishakha Enclave,
Pitampura, Delhi.
C) Name of the accused : Vijay Pal Singh
S/o. Sh. Gopi Singh
R/o. T - 58/4, Nangloi extension,
Nizamuddin, Delhi.
D) Offence complained of : U/s 279/338/304-A IPC
E) The plea of accused : Pleaded not guilty.
F) Final order : Convicted U/s. 279/337/304 A IPC
G) The date of such order : 24/08/2012
Date of Institution : 04/11/1999
Judgment reserved on : Not reserved
Judgment announced on : 24/08/2012
State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 1/27
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief, the case of the prosecution is that on 26/01/1998 at around 08:30 am at road No. 41, new DDA Park, Delhi, within the jurisdiction of Police Station Saraswati Vihar, accused was found driving a vehicle bearing registration No. DL 1 CF 4993 on a public way in a rash and negligent manner so as to endanger human life and safety of others & while so driving caused grievous injury to Ms. Santosh Aggarwal and also caused death of Sh.Prakash Chand Garg.
2. After completion of investigation challan was filed by the police U/s 279/338/304-A IPC of which cognizance was taken by the Ld. Predecessor of this court.
3. Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused.
4. Vide order dated 09/02/2001 notice U/s 251 Cr.P.C was served upon the accused for trial of offences U/s 279/338/304-A IPC by the Ld. Predecessor to which accused pleaded not guilty and claimed trial. Thereafter matter was fixed for prosecution evidence.
State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 2/275. Prosecution has examined 10 witnesses to prove the allegations against accused.
A brief scrutiny of examined PWs is as under.
PW-1 is SI Umed Singh who mechanically inspected the maruti car bearing No. DL 1 CA 7414 and vehicle No. DL 1 CE 4993 and proved his report as Ex. PW-1/A and Ex. PW-1/B. PW-2 Smt. Santosh Aggarwal deposed that on 26.01.1998 she was going with her husband on scooter No. DBN 1889 from the side of Wazirpur road and when her husband turn the scooter to the road of DDA Park, at the same time, one Ambassador came from the side of DDA park which hit their scooter, due to which they fell down and she became unconscious. Further she deposed that she and her husband were taken to Gautam hospital by the public persons and that she got injuries on her color bone, hip and legs. She deposed that the number of the offending vehicle was DL 1 CF 4993 and that she could not identify the driver of the offending vehicle.
She was cross examined by Ld. APP wherein she deposed that she had not identified the accused and that except her statement Ex. PW-2/A no other statement was recorded. She admitted her signatures on the personal search memo of the accused Ex. PW- 2/B. She denied the suggestion that she was deposing falsely at the instance of the accused.
She was cross examined by Ld. Defence Counsel wherein she admitted that after the accident she became unconscious and she had not seen anything that who was driving the vehicle and how the vehicle was driven. She deposed that the number of the offending car was told to her by State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 3/27 the police officials. She deposed that she did not put her signatures on any other document. She denied the suggestion that the accident took place due to their negligence.
PW-3 Ct. Pooran Singh deposed that on 26/01/98 on receipt of DD No. 8 A he along with HC Sukhan Singh reached at Jaipur Golden Hospital, where IO obtained the MLC of one Parkash Chand. Thereafter, they came at the spot, where photographs of the spot was taken. Further he deposed that he along with HC Sukhan Singh reached at Gautam Hospital, where MLC of Smt. Santosh Aggarwal was obtained. Thereafter, they both came at the spot where HC Sukhan prepared rukka and sent to him to PS at about 11:40 am for registration of FIR. He deposed that he came back at the spot along with copy of FIR and original rukka and handed over the same to the IO. Further that the scooter and ambassador car were taken into possession and that he do not remember, whether the accused was present on the spot or not. He deposed that the dead body of the deceased from Jaipur Golden Hospital was brought to Subzi Mandi Dead House for postmortem, where after PM the dead body was handed over to the relatives of the deceased.
This witness was cross examined by Sh. L.S. Chaudhary Ld. Counsel for the accused wherein he deposed that he has not been administered oath before taking this statement. He visited three times to the hospitals, two times on first day and one time on the second day. He deposed that he do not remember the exact time when for the first time they reached at the spot. He deposed that the scooter was lying at the left side of the road and the car was lying on the footpath. He deposed that he remained at the spot for about 10/15 minutes and he did not recorded the statement of anybody State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 4/27 there on spot.
PW-4 Ravinder Kumar proved the M.L.C No. 002888 of P.C. Garg prepared by Dr. Om Prakash Rai as Ex. PW-4/A. PW-5 Dr. Rajesh Gupta deposed that on 27.01.1998 while being posted at mortuary, Civil hospital, Subzi Mandi, Delhi, he conducted postmortem on the body of Prakash Chand Garg vide PM report No. 221 dated 27.01.1998. he proved his report as Ex. PW-5/A. PW-6 Sandeep Garg deposed that on 26.01.1998 he was going to Punjabi Bagh to meet his friend and on the way to Punjabi Bagh at about 08:30 am, when he reached in front of SD Block, Pitampura, there he noticed that his father and mother were also going on a scooter almost 50 mts. ahead of him. His father tried to cross the road to his right side and in the mean time, an ambassador white colour came from the side of Wazirpur being driven at a very high speed and in a rash and negligent manner struck against the scooter of his father. He rushed there. Further he deposed that the ambassador car was being driven by accused Vijay Pal Singh present in the court. Further he deposed that he took his parents to Gautam hospital and that as the condition of his father was serious he took him to Jaipur Golden hospital, where his father died at about 11:00 am on the same day and thereafter he came back to Gautam hospital and in the meantime, police had reached there and had recorded the statement of his mother and thereafter he accompanied the police to the spot. He proved the seizure memos vide which the ambassador car and scooter of his father were seized as Ex. PW-6/A and PW-6/B. He proved the seizure memo of State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 5/27 the DL of the accused as Ex. PW-6/C. Further he deposed that he identified the dead body of his father at mortuary and proved the identification memo as Ex. PW-6/D. PW-7 ASI Sukhan Singh deposed that on 26/1/98, on receipt of DD No. 6A regarding accident and after receiving the said DD entry, he along with Ct. Raj Kumar reached at the spot at Road No.41, near DDA Park, where he found a two wheeler scooter No. DDN-1889 and an ambassador car bearing No. DL -1CF-4993 in an accidental condition. He deposed that Driver of car Vijay Pal was also present there. He deposed that it was disclosed that injured had been taken to Jaipur Golden Hospital. He left Ct. Raj Kumar at the spot and went to Jaipur Golden Hospital, where he collected the MLC No.2888/98 of injured P.C. Garg. In the mean time, SI Anant Kiran reached at the hospital, he handed over the said MLC to him. He deposed that thereafter he came back to the spot with SI Anant Kiran and vehicles involved in the accident and accused was handed over to SI Anant Kiran.
PW-8 Rattan Lal is the registered owner of the ambassador car bearing No. DL 1CF 4993 (offending vehicle). He deposed that at the time of accident the offending vehile was driven by the accused. He proved his reply to notice U/s. 133 M.V. Act as Ex. PW-8/A. He proved the superdarinama vide which he got the vehicle released on superdari as Ex. PW-8/B. PW-9 SI Anant Kiran is the IO of the case. He has detailed about the steps taken during the course of investigation. He proved the photographs State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 6/27 of the spot as Ex. PW-9/A1 to Ex. PW-9/A6, site plan as Ex. Pw-9/B, rukka as Ex. PW-9/C, memo vide which DL of the accused was taken into possession as Ex. PW-9/D, seizure memo of the vehicles as Ex. PW-6/A and Ex. PW-6/B. He proved various other memos.
This witness was cross examined by Sh. Sanjeev Bisla Ld. Counsel for the accused wherein he deposed that he had visited the spot of the accident only once on the day of incident. He deposed that he went to the spot after coming back from Jaipur Golden hospital. Apart from the complainant Santosh Aggarwal he had examined his son Sandeep Garg and no other public witness. He had recorded the statement of Sandeep Garg on 26.01.1998. He denied the suggestion that he had not recorded the statement of Sandeep Garg on 26.01.1998 as he was not present at the spot and he was made an eyewitness later on. He further denied the suggestion that the name of the witness Sandeep Garg was later on inserted in the list of witnesses Ex. PW-9/DA at Sl. No. 7 which is not mentioned in the carbon copy Ex. PW-9/DB. Court question was put to him as to why there was discrepancy of the mentioning of the name of PW Sandeep Garg in Ex. PW-9/DA and Ex. PW-9/DB to which he answered that the carbon got out of place when the name of witness Sandeep Garg was added in the list of witnesses. He deposed that he cannot say as to the date when the list of witnesses was prepared. Further the attention of the witness was drawn to the list of witnesses Ex. PW-9/DA and after being shown he submitted that the list of witness was prepared on 02.03.1999. He deposed that he met PW Sandeep Garg for the first time on the spot and that he do not remember whether he got the seizure memo of the offending vehicle which is Ex. PW-6/A signed by the accused or not. Further the attention of the witness was drawn to the seizure memo Ex. PW-6/A and State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 7/27 after being shown he admitted that it does not bear signature of the accused. Further he denied the suggestion that the offending vehicle was neither seized from the accused nor in his presence and that is the reason why the seizure memo does not bear his signature. He further denied the suggestion that the accused Vijay Pal was not arrested from the spot. Further the attention of the witness was drawn to Jamatalashi memo Ex. PW-2/B and seizure memo of DL of the accused Ex. PW-4/D and after being shown he admitted that there is alteration of date from 18.01.1998 to 26.01.1998. Further he denied the suggestion that the documents Ex. PW-4/D and Ex. PW-2/B were not prepared on 26.01.1998. Court question was put to him why there was over writing/alteration of dates in Ex. PW-2/B and Ex. PW-4/D to which he answered that it happened by mistake. He further deposed that he has not mentioned the fact of the dates being altered/over writing in the case diaries. He deposed that he met the complainant Santosh Aggarwal on the day of the incident only i.e. 26.01.1998 and never thereafter. He deposed that the jamatalashi of the accused was taken at the Gautam hospital. He deposed that it is written in the case diaries that the accused was taken to Gautam hospital from the spot and he was accompanied by Sandeep Garg and Ct. Raj Kumar when the accused was taken from spot to hospital. He deposed that he do not remember if signature of Sandeep Garg was taken on jamatalashi or not. Further the attention of the witness was drawn to the jamatalashi of the accused Ex. PW-2/B and after being shown he admitted that it does not bear signature of the Sandeep Garg. He further denied the suggestion that the jamatalashi of the accused Ex. PW-2/B does not bear the signature of Sandeep Garg since he was not on the spot. He deposed that he issued notice U/s. 133 M.V. Act Ex. PW-8/A to the owner of the offending vehicle State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 8/27 on the very same day of the incident at about 12:30 pm. He deposed that the accused was in his custody at that time. He denied the suggestion that at that time the accused was not in his custody and he was falsely implicated in the present case with the connivance of the owner of the offending vehicle and Sandeep Garg, son of the deceased. He denied the suggestion that the accused made request to him that the accident was not caused by him and he is being falsely implicated. He further denied the suggestion that the notice U/s. 133 M.V. Act was issued to the owner of the offending vehicle to save the owner. He further denied the suggestion that Sandeep Garg was made a witness after completion of the investigation and he is not an eyewitness to the incident.
PW-10 ASI Veena proved the FIR as Ex. PW-10/A and endorsement on rukka as Ex. PW-10/B.
6. P.E. was closed on 18.01.2012 and thereafter statement of accused was recorded under section 281/313 Cr.P.C, to which he claimed innocence but preferred not to lead D.E. Thereafter the matter was fixed for final arguments.
7. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused and have gone through the evidence and the material available on record.
State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 9/278. It is submitted by Ld. Defence Counsel that prosecution has failed to prove the identity of the accused as the driver of the offending vehicle and that the star witnesses of the prosecution, PW-2 Smt. Santosh Aggarwal has not identified the accused. He has submitted that PW-6 Sandeep Garg is not the eye witness of the incident and is a planted witness. He has also submitted that the owner of the offending vehicle has deliberately portrayed the accused as the driver of the offending vehicle at the time of the accident and has shielded the real culprit.
Ld. Defence counsel has only argued on the point of identity of the accused and that he has been falsely implicated in this case by the I.O in connivance with PW-6 by making manipulations in documents. He has not argued on his rashness/negligence or the cause of injuries on the person of Ms. Santosh Aggarwal or cause of death of deceased Prakash Chand Garg.
9. Per contra Ld. APP for the State has argued that there is no doubt regarding the identity of the accused as the driver of the offending vehicle and that the rashness and negligence of the accused is implicit in the facts and circumstances coupled with the testimonies of PW-6 Sandeep Garg and PW-8 Rattan Lal. He has also submitted that cross examination of the PW-9/I.O cannot be read in evidence since right to cross examine him was forfeited vide order dated 03/11/2010 and no application u/s. 311 Cr.P.C was moved by defence counsel to recall him. Further that vide order dated 25/11/2011 I.O was ordered to be summoned only after payment of Rs. 1000/- in DLSA which still remains unpaid.
State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 10/2710. The following facts needed to be proved by the prosecution to bring home the guilt of the accused:-
a) That the alleged vehicle bearing registration No. DL 1 CF 4993 was being driven by the accused at the time of alleged accident.
b) That the alleged accident happened due to the said vehicle being driven by the accused in rash and / or negligent manner.
c) That due to the alleged accident, the death of deceased Prakash Chand Garg occurred and injured Ms. Santosh Aggarwal received grievous hurt.
From the rival arguments and material on record I am of the opinion that the prosecution has been able to prove their case beyond shadows of reasonable doubt.
Identity of the accused and the offending vehicle
11. The accused was identified in the court by PW-6 Sandeep Garg, PW-7 ASI Sukhan Singh and PW-9 I.O/S.I Anant Kiran during their examination in chief recorded on 18/04/2007and 21/05/2009 respectively. Their testimony gets corroboration from the testimony of PW-8 Rattan Lal who is the registered owner of the offending vehicle. He has deposed that on the fateful day the accused was the driver of the said car bearing no. DL 1 CF 4993 and also identified him in the court.
State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 11/2712. Hon'ble GAUHATI HIGH COURT in Niranjan Sutradhar v. State of Tripura, (Gauhati) 2006 CriLJ 3262 has held "From what have been pointed out above, it is abundantly clear that the vehicle No. TRL-1489 came at a high speed and the same knocked down P.W. 4 causing injuries on his person as indicated herein above. The question, now, is as to who the driver of the said vehicle, at the relevant point of time was ? In this regard, it is noteworthy that P.W. 6, who is, admittedly, the owner of the said vehicle, has given evidence to the effect that it was the accused, who had been engaged by him as a driver of the said truck and that on the day of the occurrence, it was the accused, who had taken out the vehicle from the house of P.W. 6. Thus, in the absence of anything showing to the contrary, it is abundantly clear that the vehicle, in question, was, at the relevant point of time, driven by the accused-petitioner, for, had someone, other than the accused-petitioner, driven the said vehicle, it was within the special knowledge of the accused-petitioner and he had the onus to show that not he, but someone else had driven the vehicle at the relevant point of time. Thus onus has not been discharged by the accused-petitioner".
Thus, after the testimony of PW-8 Rattan Lal, it was upon the accused to prove the contrary that not he, but someone else was driving the offending vehicle at the relevant time.
13. PW-7 ASI Sukhan Singh has deposed about the presence of the accused on the spot when he for the first time reached the spot on receipt of DD No. 6A and handing over the accused to IO/SI Anant Kiran when they came back at the spot after coming from hospital. I.O SI Anant Kiran has deposed about the accused being arrested from the spot only, after his custody was handed over to him by Ct. Raj kumar(DHG) who was left at State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 12/27 the spot by ASI Sukhan Singh while leaving for Jaipur Golden Hospital. Testimony of PW-7 remains unrebutted. Further personal search memo Ex. PW-2/B,dated 26.01.1998, seizure memo of DL of the accused Ex. PW-6/C and the bail bond and personal bond dated 26.01.1998 shows that the accused was arrested on that very day.
14. There is no reason given by the accused as to why he was falsely implicated in this case. And if was then why he chose to keep mum and did not make any complaint to any authorities including the court. The accused led no defense evidence to prove that he was not driving the offending vehicle at the time of accident. During his examination u/s 313 Cr.P.C the accused gave evasive answers and deposed that PW-8 Rattan Lal had called him to PS Saraswati Vihar in order to get released the vehicle i.e ambassador car as the same was seized by the police and that at the time of releasing vehicle police officials of PS Saraswati Vihar took his DL by putting him under the impression that the same shall be returned to him at the time of releasing of vehicle and they also obtained his signatures on some papers by saying that his signatures are required for release of vehicle from the PS. He has not disclosed as to his relation with PW-8 Rattan Lal i.e. the superdar of the offending vehicle who had deposed that at the relevant time the vehicle was being driven by the accused. Why did he give his DL and signed any papers to get the offending vehicle released as per his version when he was in no way connected with the offending vehicle. His surety bond was furnished by one Megh Singh Sharma and the accused has nowhere stated why does the need of offering the surety bond to the police arose, if he was called only for the purpose of getting the State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 13/27 offending vehicle released on superdari by the owner of the said vehicle. If he was helping the registered owner to get his vehicle released then he would have stood surety for the accused. The reason is obvious, it is simple to deny than to prove.
15. Interestingly, a suggestion given by the Ld. Defence Counsel to the I.O in his cross examination gains importance here. In cross examination of the I.O suggestion was given to the I.O which he denied that the accused requested the I.O that accident was not caused by him and he is being falsely implicated. This suggestion proves that the accused was very well aware about the fact that he is being booked for offence for causing accident and not called by the PW-8/Superdar Ratan Singh for getting released the offending vehicle as claimed by him in his statement U/s. 313 Cr.P.C. The accused is not a layman but a member of BSF as reflected from the order sheet dated 18/04/2007 and application for cancellation of NBW's moved by him on 21/03/2003 and 27/08/2004. He cannot be allowed to say that he was not aware that he was arrested by the police for the present offence. Accused should have led evidence in his defense to show that he was not the actual offender and has been falsely implicated, which he chose not to.
In view of the above discussions, in particular by the unrebutted testimony of PW-6, PW-7 and PW-8 no doubt remains as to the identity of the accused person as the driver of the offending vehicle.
State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 14/27Rash and Negligent Act
16. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other.
17. Meaning of expression negligent act and rashness came up for discussion in the case titled as Prabhakaran v. State of Kerala, (SC) 2007(3) R.C.R. (Criminal) 605 and the Hon'ble Apex Court Held :-
(1) A negligent act is an act done without doing something which are a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it - A rash act is a negligent act done precipitately.
(2) Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law.
(3) Criminal rashness means hazarding a dangerous or wanton act with the State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 15/27 knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
18. To prove this the testimony of PW-2 i.e. injured Smt. Santosh Aggarwal and PW-6 Sh. Sandeep Garg read in the light of the mechanical inspection report Ex. PW-1/B and site plan Ex. PW-9/B are relevant. PW-2 in her testimony has deposed that when she was going with her husband, the deceased on scooter No. DBN 1889, the offending vehicle hit their scooter due to which they fell down. In her cross examination by Ld. APP, she denied her statement mark X under Section 161 Cr.P.C though she admitted the complaint Ex. PW-2/A. When her statement is read keeping in view the site plan it clearly goes to show that the offending vehicle hit their scooter from behind. This fact also gets corroboration from the mechanical inspection memo of the offending vehicle which is Ex. PW-1/B which shows that front grill of the offending vehicle as pressed, bonnet damaged from middle and right side, front mudguard from the right side damaged and bumper pushed inside from middle.
19. PW-6 Sandeep Garg in his testimony has deposed about the offending vehicle being at a high speed and strucking against the scooter of the deceased. Though just by quoting the offending vehicle being at a high speed does not prove the rash and negligent act of the accused but the same read at par with the quantum of damage to the vehicles as the result of impact, becomes an important ingredient to prove the rashness and State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 16/27 negligence of the accused.
20. Most importantly as per the site plan Ex. PW-9/B the distance between the point of collision between the vehicles i.e. point A and the point where the offending vehicle dragged the scooter of the deceased is approximately 20 feet. The photographs of the spot, Ex. PW -9/A1-A6 when seen in light of the statement of the PW-2/injured, PW-6, site plan and the mechanical inspection memo of the offending vehicle shows nothing else but the rashness and negligence by which the vehicle was being driven. In the photographs it is seen that the left front wheel of the offending vehicle is almost over the scooter of the victim and its placing proves that it has been dragged after being hit from behind and the same is possible only if the offending vehicle is at such a high speed, not being able to stop even after the impact. Neither cross examination nor arguments on this point were made by the defence counsel. Accused has not even come up with any defence if the victim was at fault, whether he came in front of his car suddenly or was coming from wrong direction or took turn without indicator etc. It is not the case of the accused that the scooterist had applied brake all of a sudden and therefore he was taken unaware which led his car hitting the scooter from behind. Act of negligence can be clearly attributed to the accused in this case as he is solely responsible for causing this accident without any fault of the scooterist. It is not just that a single witness has to prove the rashness/negligence,it can be determined from the manner in which the accident had take place and other factors.
In my opinion the prosecution has been able to prove the rashness State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 17/27 and negligent act of the accused while driving the offending vehicle.
21. I am fortified on this aspect by law laid down by Hon' ble Delhi High Court in Jeet Lal v. State. (Delhi) 2010(8) AD(Delhi) 217 "Every motor vehicle that comes out of the factory has some essential features and one the essential features of a motor vehicle is brake. The brake is provided in the motor vehicle so that while driving the motor vehicle, the driver of the motor vehicle applies brakes to avoid any kind of collision between motor vehicle and other commuters/ objects. If the motor vehicle is running at a moderate say speed between 40-50 kms/hrs, with the application of brakes, the vehicle gets stopped within a few feet and if the brake is applied with some force, the vehicle would stop instantly.
The pedestrians have a right to walk on the pedestrian way and if there is no pedestrian way, they have a right to walk on the side of the road. All motor vehicles drivers have a duty towards pedestrian and merely because a pedestrian is walking on the side of the road, no motor vehicle driver has a right to hit the pedestrian from behind. The very fact that the truck driver did not care for the persons walking ahead on the road and did not apply brakes to save the pedestrian walking on the road itself shows that the truck driver was negligent. It is not the case of the petitioner that the deceased in this case had suddenly jumped before the truck. No suggestion was given to the witness that the deceased was not walking on the side of road or had suddenly come into the middle of the road in front of the truck. The negligence of motor vehicle driver who does not look ahead of the vehicle and does not bother to see the nature of traffic to keep appropriate speed so that the vehicle does not hit others, is writ large. Every motor vehicle driver is supposed to drive the vehicle in accordance with road conditions, traffic density and presence of pedestrians on the State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 18/27 road. Where the traffic density is more and pedestrians are also walking on the road, the motor vehicle driver is supposed to drive in such a manner that he does not hit the pedestrian and the motor vehicle would stop immediately on application of brakes. If this caution of driving a vehicle in a proper manner is not taken, this would amount to negligence and if the motor vehicle hits somebody from behind, due to such driving or non-application of brake, this is criminal negligence. "
The state of things that gets established proves that the accused was totally indifferent towards the speed of the vehicle and since after the impact it dragged the scooter to a considerable distance before coming to complete halt.
22. The faster the speed of a vehicle, the greater the risk of an accident. The forces experienced by the human body in a collision increase exponentially as the speed increases. Traffic engineers and local governments have determined the maximum speeds allowable for safe travel on the nation's roadways. Speeding is a deliberate and calculated behavior where the driver knows the risk but ignores the danger. Had the driver been cautious , he could have avoided the accident.
23. The official website of Delhi Traffic Police http://www.delhitrafficpolice.nic.in/speed-limitation.htm provides the speed limit of vehicles on various roads of Delhi. The maximum prescribed limit is 80 Kmph, that too on NH-8 and Noida Toll roads. The road coming from Madhuban Chowk to Wazirpur Depot does not finds specific mention in the list provided but at S.No 18 it is provided that in All areas between Ring State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 19/27 Road and Outer Ring Road, beyond Outer Ring Road, between Ring Road and entire Trans Yamuna areas, for cars the max. permissible speed limit is 50Kmph.
If the accused had not been negligent in maintaining the speed of the vehicle in the prescribed limit and have slowed down his vehicle while approaching the crossing the accident might have been averted.
Cause of death of deceased due to the accident
24. The next requirement to prove the case against the accused is whether the deceased died due to the rash and negligent act of the accused. Having proved the identity of the accused and the accident taking place due to his rash or negligent driving the prosecution was required to prove that the act of the accused was Causa Causan and not the Sine Qua Non. To hold the accused guilty it must be proved on the record that the act of the accused must be the proximate cause of the death of the deceased and not the remote cause. The cause of the death of deceased Prakash Chand Garg has been proved by the prosecution by examining PW-5 Dr. Rajesh Gupta who proved postmortem report as Ex PW-5/A. He opined the injuries to be ante mortem caused by blunt force impact due to vehicular accident. Death was due to shock and hemorrhage as a consequent to multiple injuries. This witness has not been cross examined by the accused at all.
State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 20/27Cause of injuries of the victim
25. The next requirement to prove the case against the accused is whether the injuries received by the injured Smt. Santosh Aggarwal was Causa Causan and not the Sine Qua Non of the rash/negligent act of the accused. To hold the accused guilty it must be proved on the record that the act of the accused must be the proximate cause of the injuries received and not the remote cause.
26. PWs have stated that immediately after the accident, injured was taken to Gautam hospital, Pitampura, Delhi where M.L.C No. 652/98 was prepared by Dr. Sapra. Dr. Sapra had opined the nature of the injuries to be "grievous". The said doctor was never brought to the witness box. As per M.LC, on 26/01/1998 at 11:15 a.m, the injured Smt. Santosh Aggarwal was brought to the hospital with History of RTA (Road Traffic Accident). The time of accident being approx. 08:30 a.m and injured being taken immediately to hospital clearly shows the injuries being causa causans of the accident.
27. Now, the question arises whether the nature of injuries are grievous or simple in nature so as to adjudicate whether offence u/s 337 I.P.C or 338 I.P.C is made out.
28. The concerned doctor who prepared the M.L.C was never got examined by the prosecution and thus the accused did not got opportunity State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 21/27 to cross examine him as to the basis on which he opined the injuries as grievous. Prosecution has also failed to prove if the case falls under any of the eight kind of hurt that are designated as "grievous" by Sec. 320 I.P.C.
29. As per material on record, there is nothing to show if the injured had fracture, permanent loss of hearing or sight etc. Further, it has not been proved as to for how many days the injured suffered from body pain or the date on which he was discharged from the hospital.
30. In my opinion, the ingredients of Sec.320 is not made out though the injuries sustained by the injured can be said to cause hurt to him within the domain of Sec.319 I.P.C which reads as under.
" Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."
It can be deduced safely from the state of things that has emanated that the accused caused hurt to the injured.
31. I am fortified in my opinion by the law laid down in Nazar Mohd. @ Hanuman v.State of Delhi by Hon'ble High Court Of Delhi in para 12, "The prosecution had examined Hari Babu Gupta, Record Clerk Irwin Hospital, New Delhi as PW/7, who has proved the M.L.C. Exhibit PW/7/A, in respect of Kanhaiya Lal having signatures at point X to be in the hand of Dr. O.P. Khere. This M.L.C. was prepared by Dr. Khere. He has also proved the endorsement at point Y to be in the hand of Dr. S.K. Kukreja who declared the State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 22/27 injuries of Kanhaiya Lal to be grievous. He has also proved endorsement at point 'Z' regarding the injured to be unfit for statement to be in the hand of Dr. Vijay Kumar Sharma. He has also claimed that the whereabouts of these Doctors were not known. As already referred to, all that has been stated by Kanhaiya Lal, injured was that he remained in the hospital for seven days. There is nothing in his statement to indicate that the accused had expressed his intention to kill this witness by use of force. The Doctor who declared the injuries to be grievous has not been examined and thus we do not have on record the material to indicate as to what were the reasons for the Doctor coming to the conclusion that the injuries were grievous in nature. The M.L.C. does not indicate that there was any fracture nor there is any such claim by Kanhaiya Lal injured. In these circumstances I am clearly of the view that the injuries have to be termed as simple caused by sharp object and in this way offence would fall under Section 324. In case Ganga Ram v. State, (1968 Crl. LJ. (Vol. 74) it has been held that even if the Doctor is examined but the record of the operation, etc. is not produced and it is not clear from his statement as to how he came to the conclusion about the injury to be 'grievous' it should be deemed to be "simple" in nature. In case Om Prakash Daulat Ram v. State, 1969 Cr. LJ (Vol. 75) 250, it has been held that if the reasons on which the injuries are declared as grievous are not given in court, the same are to be treated as 'simple'. In these circumstances the offence proved against the appellant would be under Section 324, IPC only" .
32. Ld. Defence counsel has argued that PW-6 Sandeep Garg is a planted witness which the police have planted to prove the rashness and negligence of the accused. The contentions of Ld. Defence Counsel regarding discrepancy in mentioning the name of said witness in the list of witnesses was answered by the IO himself that the carbon got out of place State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 23/27 when his name was being mentioned in the list of witnesses. Further, law does not prescribe any order in which the witnesses has to be listed. If I.O had to "insert" the name of PW Sandeep Garg in the list he could have added his name in the end or if it was to be in order of preference then it should have been inserted at S.No 2, just below the name of the injured. But , it was not so and in the opinion of the court it is just an innocent mistake on part of the I.O. Further more the said witness not cross examined on this point and opportunity was granted to the defence but the said witness was not traceable. Just because the IO had been careless in preparing the list of witnesses the whole case of the prosecution cannot be looked upon with suspicion.
33. Even if the contention of Ld. Defence counsel that PW-6 is a planted witness is acceded to, even then the testimony of PW-2 coupled with other material on record, is sufficient enough to prove the identity and rash and negligent act of the accused. It is not that PW-6 was introduced after the testimony of PW-2 who failed to identify him. If the motive was to falsely implicate the accused then even PW-2 who is the mother of PW-6 could have been tutored by the I.O and PW-6 to depose on the lines of prosecution . The occasion to plant a witness would have arisen only when no witness to the incident would have been available. But in the instant case, if tutored the injured alone would have been sufficient to prove the identity, rashness and negligence on part of accused. The I.O cannot be expected to contemplate in advance that the injured will not support the case of the prosecution on certain aspects.
State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 24/2734. Ld. Defence counsel has argued that there has been alteration of dates from 18/01/1998 to 26/01/1998 in certain documents which has been admitted by the I.O during his cross examination but he has not led any arguments as to how it prejudiced the accused and proves that the accused has been falsely implicated. Had altered date been after the date of incident then it would have raised some doubts that the documents were prepared later and tried to portrayed as made on the date of incident but it is not the case. What benefit the I.O got after altering the date from 18/01/1998 to 26/01/1998 remains unanswered by the defence counsel? The documents cant be assumed to be prepared before the date of the accident. Even otherwise the benefit of lapses on part of I.O cannot be given to the accused so as to throw the testimonies of witnesses and other evidences overboard. If it is allowed then it would amount to justice being played in the hands of I.O.
35. Hon'ble Supreme Court of India in case titled Ram Bihari Yadav v.State of Bihar 1998 AIR (SC) 1850 in para 13 has held "........... the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the appellant. In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."
State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 25/27Also our own Hon'ble High Court in Manoj @ Manu Vs. State of Delhi 2000, I AD (Delhi) 67 has also categorically ruled that:
"Criminal justice should not be made casualty of wrong committed by the Investigation Officer."
36. Further the court has perused the police file and there is no discrepancy regarding mentioning of PW-6 Sandeep Garg as a witness. The case diaries are coherent and the flaws i.e overwriting in certain documents placed in the judicial file may be due to callousness of the IO but the same cannot be allowed to affect the case of the complainant. Absence of signature of the accused on seizure memo Ex PW-6/A and that of PW Sandeep Garg on jamatalashi of accused Ex PW-2/B is not even an irregularity. It may be in practice but not a rule that accused has to necessarily sign the seizure memo of the offending vehicle and the eye witness has to sign the jamatalashi of the accused. It has been witnessed by other witnesses including Sh. Megh Singh Sharma who stood surety for the accused.
37. Testimonies of all PWs examined are natural and trustworthy and the accused could not discredit the testimonies of PWs. The court has no reason to disbelieve the testimonies of the prosecution witnesses who have corroborated each other in all material aspects about the accused driving the offending vehicle at the time of accident in a rash and negligent manner.
State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 26/2738. Therefore, in view of above discussions and cited case laws the prosecution has sufficiently proved on the record that the proximate cause of the injuries received by the injured and death of deceased Prakash Chand Garg was the accident caused by the accused by his rash and negligent driving, though the nature of injuries to PW-2 Smt.Santosh Aggarwal could not be proved as "grievous". Accordingly the accused is held guilty and convicted for the offences punishable U/s. 279/337/304 A IPC in the present case.
39. A copy of this judgment be supplied to the accused free of cost and the matter be now listed for arguments on the point of sentence.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on August 24th, 2012.
It is certified that this judgment contains 27 pages and each page is signed by me.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Date: 24/08/2012 State V/s Vijay Pal Singh FIR No. 53/98 PS: Saraswati Vihar Page No. 27/27