Delhi District Court
Jatinder Singh S/O Sh. Rajinder Singh vs The State on 1 December, 2010
:1:
IN THE COURT OF SHRI S. K. SARVARIA ADDL. SESSIONS
JUDGE, INCHARGE ROHINI COURTS, DELHI
Criminal Appeal No. 20/2010
In the matter of :
Jatinder Singh s/o Sh. Rajinder Singh
r/o 328, Main Road, Burari, Delhi. ...... Appellant
versus
The State ....... Respondent
Appeal Under Section 374 CrPC against the impugned
judgment of conviction dated 18.08.2010 and order of
sentence dated 21.08.2010
: JUDGMENT :-
This appeal is directed against the judgement of conviction dated 18/8/2010 passed by learned Additional Chief Metropolitan Magistrate (in short ACMM), Rohini Courts, Delhi by which the appellant was convicted under Sections 279/304 A IPC. By subsequent order on sentence dated 21/8/2010 the appellant was sentenced to undergo simple imprisonment for two months under section 279 IPC. He was also sentenced to undergo simple imprisonment for one year under Section 304 A IPC besides payment of fine of Rs.5000/- and in default of payment of fine to undergo simple imprisonment for seven days. It was also directed that both the sentences shall run concurrently. Aggrieved by the impugned judgment of conviction Jatinder Singh vs. State :2: and impugned order on sentence, the appellant has preferred for the present appeal. PROSECUTION CASE:
The prosecution case, in brief, is that on 2/4/2000 at about 2.15 p.m. at Main GT Karnal Road near Singhu Border, Ali Pur the appellant/convict was driving tempo No. DBL 5014 in a manner so rash and negligent as to endanger human life and personal safety of the others. It is also alleged against him that while driving the said vehicle in the said manner he struck the said vehicle against one Parkash Dalal and thereby caused his death not amounting to do culpable homicide. The appellants/convict was arrested at the spot. The investigating officer recorded the statement the witnesses u/Sec.161 CrPC, prepared site plan, seized the offending vehicle got conducted post-mortem on the dead body of the victim, obtained post-
mortem report. On completion of the investigation the appellants/convict was challaned to face trial for the offences under Section 279/304 A IPC.
NOTICE AND PLEA OF THE ACCUSED:
The Notice under Sections 279/304 IPC was given by the learned trial court to the appellant/convict on 11/10/2000 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
In support of its case the prosecution has examined seven witnesses in all i.e. PW-1 Dr.B.K. Sharma, PW-2 HC Jogi Ram, PW-3 Kewal Krishan, PW-4, ASI Devender Kumar, PW-5 ASI Jagdish Singh, PW-6 Ct. Lokender and PW-7 SI Jatinder Singh vs. State :3: Surender Singh.
PLEA AND DEFENCE OF ACCUSED :
In his statement u/Sec. 313 CrPC recorded before the Ld. Trial Court, appellant/convict has either denied the incriminating facts put to him or has expressed the ignorance about them. The appellant/convict, however, has admitted that mechanical inspection of his Tata tempo 407 bearing No. DBL-5014 was conducted by PW-4 ASI Devender Kumar and detailed mechanical inspection report is Ex. PW-4/A. He also admitted that he was arrested vide memo Ex. PW-6/C though, he has stated that his arrest was illegal and he has been falsely implicated in the case. He took the plea that it is a false case against him. He denied that accident was caused by vehicle No. DBL-5014 which he was driving. He stated that he parked the said vehicle on the left side of the road i.e. at a distance of about 25 mtrs away from the injured person lying on the road and went to intimate with respect to that injured person lying on the road to PCR officials, however, later on he was falsely implicated in the present case. He was driving the vehicle No. DBL-5014 from the Narela side at a optimum and normal speed and no accident whatsoever was caused with his vehicle.
ARGUMENTS AND FINDINGS:
It is contended on behalf of appellant/convict that the important distances are not given in the site plan prepared by the investigating officer. The public witnesses are not joined in the investigation by the investigating officer. The PCR officials are also not made the witnesses nor FIR is registered on their Jatinder Singh vs. State :4: statements. It is also argued that no public witness is examined by the prosecution before learned trial court. No witness from Toll Tax which was nearby, is produced. Therefore, the prosecution case is doubtful and the conviction of the appellant/ convict is liable to be set aside and he is entitled to be acquitted. It is also argued, alternatively, that the appellant/convict is facing trial for the last about 10 years so harsh punishment should not have been awarded by learned Trial Court. Reliance is placed upon 'Abdul Subhan versus State (NCT of Delhi) 2006 (3) JCC 1797 Delhi'.
The learned Chief Public Prosecutor for the State, on the other hand, has argued that the prosecution case has been proved beyond reasonable doubt before learned trial court so appellant/convict was rightly convicted by learned trial court. There is no infirmity in the trial court order on sentence or judgment of conviction so the same should be upheld.
I have heard the learned counsel for the appellant/convict, learned Chief Public Prosecutor for the State and have gone through the record of the case, relevant provisions of law and the authority produced on behalf of the appellant/convict.
The star witnesses of the prosecution in this case is PW-5 ASI Jagdish Singh who has stated that he was present at Singhu Border on 2/4/2001, tempo No. 407 with registration No. DBL-5014 came from the side of Singhu Border and caused accident by rash and negligent driving and struck against the pedestrian.
Thereafter he stopped the tempo at a distance of about 20 yards and he apprehended Jatinder Singh vs. State :5: the driver of said tempo. He also stated that the accused had come from the Singhu Border side on a very high-speed without blowing horn and in a zigzag manner and struck the tempo to the pedestrian causing his death of the spot. The statement made by this witness in the examination-in-chief regarding rash or negligent driving of the accused at the time accident remained credit worthy even in the cross-examination. The mere fact that no other police official from PCR Van was examined by the investigating officer or public witnesses were not joined in the investigation is not sufficient to make the prosecution case doubtful in the face of the credit worthy statement of PW5 ASI Jagdish Singh.
In Abdul Subhan's case (supra), our Hon'ble High Court has held that merely because the vehicle was driven at high speed does not bespeak of either negligence or rashness by itself. But PW-5 though has stated that accused was driving the tempo in question at a very high-speed which may in itself may not lead to an inference of rashness or negligence in driving the vehicle in question by the appellant but along with this statement he also stated that the accused was driving the tempo in question and the accused did not blow any horn and was driving in a zigzag manner. He also stated that the accused caused the accident by rash and negligent driving and struck the same against one pedestrian who died on the spot itself. Therefore, in addition to the statement that accused was driving the tempo in question at a high-speed the witness has also stated that accident was caused due to his rash and negligent driving and accused also did not blow any horn and was driving the vehicle in a zigzag manner. Therefore, Abdul Subhan's case (supra) which is confined to the statement of witness as to the high-speed of the offending Jatinder Singh vs. State :6: vehicle does not help the appellant/convict. The statement of PW-5, in my view, clearly proves that the accused was driving the tempo in question, at the time of accident, in a rash or negligent manner besides on a very high-speed. The death of the victim is proved by the statement of witnesses, photographs from Ex. PW-3/A to Ex. PW-3/D and also post-mortem report proved by PW-1/A. As regards the not showing of the distances of different important aspects of the accident in the site plan the same, in my view also does not show any discrepancy in the prosecution case which can be said to be significant.In State of UP v Babu AIR 2003 SC 3408, 2003(11) SCC 280, 2003(8) Scale 48, 2004 SCC(Cri) 144 2003 Cr LJ 4982 (SC), 2003(4) R.C.R.(Criminal) 673, 2004(1) Apex Criminal 593, 2003(4) Crimes 203, it was held:
" ......................... Great emphasis was laid by the High Court on the fact that in the site plan place where gaslight was found had not been indicated. The site plan is not substantive evidence. The High Court seems to have proceeded on the basis that omission to indicate the location of gaslight in the site plan was fatal. This Court in Shakti Patra and Anr v State of West Bengal (AIR 1981 SC 1217) held that where prosecution witness testified that he had identified the accused in the light of the torch held by him, the presence of torch would not be said to be not proved on the ground that there was no mention of the torch in the FIR or in the statement of the witness before the police, when there was testimony of other witnesses that when they reached the spot they found the torch burning. To similar effect is the conclusion in Aher Pitha Vajshi and Ors. v. State of Gujarat (AIR 1983 SC 599). It would be proper to take note of what was stated by this Court in George and Ors. v. State of Kerala and Anr., (1998(4) SCC 605 : 1998(2) RCR(Crl.) 199 (SC)) regarding statements contained in an inquest report. The statements contained in an inquest report, to the extent they relate to what the Investigating Officer saw and found are admissible but any statement Jatinder Singh vs. State :7: made therein on the basis of what he heard from others, would be hit by Section 162 of Code of Criminal Procedure, 1973 (in short `Cr.P.C.'). The position is no different in case of site plan ."In Surinder Singh v State of UP, AIR 2003 SC 3811, 2003(10) SCC 26, 2003 (7) Scale 184, 2003(Sup1 ) JT 226, 2003(Sup3 ) SCR 401, 2004 SCC(Cri) 717, 2003 Cr LJ 4446 (SC), 2003(4) RCR (Criminal) 575, 2004(1) Apex Criminal 572, 2003(4) Crimes 393, it was held:
"Merely because name of PW-2 did not appear at the site plan that does not render his presence at the place of occurrence improbable. As was held in Girish Yadav and others v. State of Madhya Pradesh (JT 1996(3) SC 615), the site plan is prepared on hearsay and is not to be read as evidence. Even otherwise, explanation has been given as to why the position from where PW-2 claimed to have been seen the occurrence was not noted in the site plan . The High Court has noticed this factor and in our view rightly."
In Anil v State of Haryana 2007(3) RCR (Criminal) 222 (SC), 2007(3) RAJ 291, 2007(7) JT 238, 2007 Cr LJ 4294 (SC), it was held:
" The site plan showed the material particulars. The place where the complainant was being assaulted has clearly been stated in the First Information Report as also in his deposition by Rajpal. Almesh admittedly was inside the house. We, therefore, do not see any reason to throw out the prosecution case only on the ground that in the site plan the investigating officer had failed to pinpoint the place where the witnesses were standing at the time of occurrence."
From the above case law it is clear that the discrepancy in the site plan is not enough to discard the prosecution case. Thus, I do not agree with learned counsel for appellant/conduct that merely because the distances are not shown in the site plan the prosecution case has become doubtful.
Jatinder Singh vs. State :8: In view of the above discussion although I am of the firm opinion that the prosecution has been able to prove its case against the appellant/convict beyond reasonable doubt for the offence under Section 304 A IPC and learned trial court has correctly appreciated the facts and law to arrive at the finding of conviction of the appellant/convict under Section 304 A IPC. However, one technical question that arises is whether conviction and sentence both under Section 279 and Section 304- A of 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 Sec. 279 IPC, and death is also caused as a result of the negligent act, he will be guilty of the offence under Sec. 304A IPC, because an offence under Section 279 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 Sec. 304A 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 Section 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 Sec. 304- A, 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 Jatinder Singh vs. State :9: appellant/convict/accused by the learned trial court for the offence under Section 279 IPC are liable to be set aside.
RESULT OF APPEAL:
In view of discussion the appeal is partially allowed. The order of conviction passed by the learned trial court under Section 279 IPC is set-aside. The appellant/convict is acquitted of the offence under Section 279 IPC. However, the conviction of the the appellant/convict under Section 304 A IPC is confirmed. The sentence awarded by learned trial court for the said offence under Section 304 A IPC is also confirmed. The appellant/convict be taken into custody and sent to jail to undergo the imprisonment under Section 304 A IPC. He shall, however, be entitled to the benefit u/Sec. 428 CrPC. The bail bonds furnished in the appeal are cancelled.
The trial court record be returned alongwith the copy of this judgment. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The appeal filed be consigned to the record room.
Announced in the open court on 1st day of December, 2010 S. K. SARVARIA Additional Sessions Judge In Charge Rohini Courts, Delhi Jatinder Singh vs. State