Delhi District Court
Binda Rawat vs State on 3 August, 2023
IN THE COURT OF Ms. SEEMA MAINI
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH DISTRICT: ROHINI COURTS: DELHI
CNR No. DLNT01-001215-2023
CA No. 30/23
Binda Rawat
S/o Sh. Dukharan Rawat
R/o H.No. D-193, Factory Area,
Wazirpur, Delhi ... Appellant
Versus
State ... Respondent
Date of institution : 06.02.2023
Date of Arguments : 03.08.2023
Date of Judgment : 03.08.2023
JUDGMENT :
Vide this Judgment, I shall dispose off the instant appeal, preferred by the appellant under Section 374 of Cr.PC, vide which he has assailed the judgment dated 25.01.2020 and the Order on Sentence dated 11.01.2023, passed by Ld. MM-05, North District, Rohini Courts, Delhi, in case FIR No. 90/2009 PS Bawana u/s 279/337/338/304A IPC & 146/196 of M.V. Act, titled 'State Versus Binda Rawat'. Vide the impugned judgment dated 25.01.2020, the appellant-herein was convicted for the offences punishable u/s 279/337/338/304A IPC & u/s 146/196 of M.V. Act. The convict -appellant was sentenced vide the impugned order dated 11.01.2023.
CA No. 30/23 Binda Rawat v. State Page No. 1 / 142. The factual matrix of the case, in brief, is that on 17.04.2009, an information about an accident was received at PS Bawana. The police team reached at the spot i.e. Ochandi Road in front of Rajiv Gandhi Stadium, where two vehicles i.e. vehicle no. HR10L-2575 Bolero and truck bearing no. DL1GA- 8405, were found in accidental condition. It was revealed that the injured persons have already been removed to the hospital. Police officials went to Maharishi Balmiki Hospital, where they came to know that victims of the accident namely Savita, Pooja, Meena, Komal, Seema, Sunny, Savita, Suman, Rekha, Ganga, Jyoti, Devender, Kavita, Payal and one unknown person, were brought there and were under medical treatment. Pursuant to the statement of the victims, the instant case FIR bearing no. 90/09, u/s279/337 IPC was registered at PS Bawana.
3. Subsequently, two victims namely Pooja D/o Vinod and Sunny S/o Krishan Kumar succumbed to their injuries, and therefore, their postmortem was carried out. The other formalities with regard to the investigation were carried out, including the preparation of the site plan, pointing out memo, collection of MLCs of the victims and other related medical papers and also recording of statements of the witnesses. After the death of Pooja and Sunny, Section 304A IPC was also added into the scope of investigation and subsequently, on receipt of the result / opinion regarding the injuries sustained by the injured persons, Section 338 IPC was also added. Finally, a charge sheet was filed against the appellant herein, for the offences punishable u/s 279/337/338/304A IPC and u/s 146/196 M.V. Act inasmuch as the requisite papers of the truck could not be produced by the CA No. 30/23 Binda Rawat v. State Page No. 2 / 14 driver.
4. On the aforesaid charge sheet, cognizance was taken by the Ld. Magistrate and after compliance of Section 207 Cr.P.C., the aspect of charge/notice was gone into and based upon the material on record, accused Binda Rawat was served with a notice u/s.279/337/338/304A IPC and also for the offences punishable u/s.146/196 M.V. Act for not having a valid insurance of the offending vehicle. The accused pleaded not guilty to the notice served upon him and claimed trial.
5. Prosecution, in order to bring home its case against the accused, arrayed 22 witnesses into the charge sheet. However, only 13 witnesses were examined. PW ASI Prem Singh, who has registered the FIR, was dropped on 16.09.2019, as he had already expired. Doctors i.e. Dr. Vipin Sharma, Dr. Virender Kumar, Dr. Sunil Kakkar, Dr. Bajrung Kumar, Dr. Kulbhushan Goel and the Record Clerk from M.B. Hospital were not examined in view of the statement of the accused u/s.294 Cr.P.C. in which he admitted the MLCs together with FIR, postmortem report and death summary of Master Monu @ Sunny.
6. The evidence so come on record was put to the accused in his statement u/s 313 Cr.P.C., wherein he practically denied and disputed every allegation and evidence. It is stated by him that he was not driving the truck at the time of alleged incident, rather the same was parked on one side of the road and was in a stationary position, and it was the driver of Bolero, who struck against his truck, as a result which the accident in question took place. He had no role to play in the accident. He opted not to lead evidence in his defence.
CA No. 30/23 Binda Rawat v. State Page No. 3 / 147. Against the backdrop of the aforesaid facts and circumstances, Ld. Trial Court after considering the contentions raised by the contesting sides, and the evidence on record, vide judgment dated 25.01.2020, held the appellant / accused Binda Rawat guilty and convicted him for the offences punishable u/s.279/337/338/304A IPC and u/s.146/196 M.V. Act. Vide Order on Sentence dated 11.01.2023, the convict/appellant was sentenced to pay a fine of Rs.1000/- for the offence punishable u/s.279 IPC and in default of payment of fine, SI for 15 days. He was further sentenced to pay a fine of Rs.500/- for the offence u/s.337 IPC and in default of payment of fine, SI for 07 days. He was further sentenced to undergo SI for Three months for the offence u/s.338 IPC and SI for Six months for the offence u/s.304A IPC. It is noteworthy, that the order on sentence dt.11.01.2023 is silent about sentence in respect to Section 146/196 M.V. Act.
8. Ld. Counsel for appellant has reiterated the plea of the convict that the vehicle of the convict was in stationary position. In addition to that, it is submitted that the site plan also reflects that the truck was parked on one side of the road, apart from the fact that two of the witnesses i.e. driver of the Bolero and the one who was coming in the vehicle behind Bolero, have stated differently about the speed at which the Bolero was being driven. It was about 50-60 kms per hour as per the version of the witnesses. By any standard, a vehicle cannot be stopped if it was being driven at a speed of 50 kms per hour within a space of 25 steps. This distance is not sufficient to facilitate the vehicle to stop. Thus, it is the driver of the Bolero who is to be held CA No. 30/23 Binda Rawat v. State Page No. 4 / 14 responsible for the accident, injuries and the death.
9. It is further asserted on behalf of the appellant, that the first four witnesses have been discharged by the court without cross-examination and those four witnesses are all public persons who are very vital for the purpose of determination of the case. If for some reason, the accused was not in a position to engage a counsel of his own, the court was duty bound to extend legal aid to the accused/appellant. The cross-examination being one of most important tool in the hands of the accused, to contest the veracity of the witnesses and the case and in the absence of cross-examination, the unrebutted testimony cannot be and should not be used against the accused. Thus, it is submitted that the accused should be considered for the benefit falling out of it and this appeal may be allowed.
10. Ld. Addl. PP, on the other hand, submitted that it is true that first four witnesses have gone unrebutted and no cross- examination could take place but then subsequent witnesses were cross-examined by the counsel and, therefore, if it was so important then those four witnesses should have been recalled for cross-examination by invoking Section 311 Cr.P.C. and for that matter if it was not revealed at the initial stages to the counsel even then he must have come to know about the said position at the time of statement of accused or at least at the time of final arguments. Section 311 Cr.P.C. can be invoked at any stage and there is no answer with the appellant as to why it has not been done. In these circumstances, appellant cannot be permitted to take advantages of his own lapse if not wrongs.
CA No. 30/23 Binda Rawat v. State Page No. 5 / 1411. The contention of the appellant with regard to the fact that driver of the Bolero must have consumed liquor and they were coming from a marriage party, is only presumptive and in the absence of any evidence, there is no reason to presume that the driver of Bolero had consumed liquor or that he was under
the influence of liquor and that it was on account of this fact the accident had taken place. The MLC of the driver Devender is present on record which was prepared almost immediately after the accident and there is no reference of even a smell of alcohol. Therefore, in these circumstances, the contention raised on behalf of the appellant is preposterous that the driver of the Bolero had consumed liquor, therefore, it was his error of judgment which resulted into the accident.
12. Ld. Addl. PP has pointed out that testimony of the witnesses clearly reveals that the truck was being driven in a zigzag manner and that it is indicative of the fact that appellant was not careful in respect of the other road users and that resulted into the accident, and that therefore, none other than the appellant is to be held responsible for the death of two human beings and injuries to several persons. Finally, it was contended, that even if the testimony of the first four witnesses is not taken into account, still the prosecution is able to drive home its case against the accused which further dis-entitles the appellant from any relief. With these contentions, it is submitted by the Ld. Addl. Prosecutor that the appeal is liable to be dismissed.
13. I have thoughtfully considered the rival contentions, agitated by Sh. J.K. Kalson, Ld. LAC for the appellant and Sh. Balbir Singh and Sh. Himanshu Garg, Ld. Addl. PP (substitute) CA No. 30/23 Binda Rawat v. State Page No. 6 / 14 for the State, gone through the relevant case law, and I have also scrutinized the evidence, led by the prosecution, before the Ld. Trial Court.
14. Time and again, the Hon'ble superior courts taking the guidance from the 'legal bible' i.e. the Constitution of India, impressed upon the courts below, that every accused is entitled to legal representation, since it is, his liberty, which is at stake. If the accused is unable to arrange an advocate for himself, either due to paucity of funds or any other reason, he should be provided with free legal aid, by availing the services of the DLSA. The LAC for the appellant/accused has primarily agitated this issue that the accused, before the Ld. Trial Court, was not represented by an advocate at the time, when the most crucial material witnesses i.e. PW1 to PW4, were examined by the court. He has cited the case titled 'Sunil Vs. State in Crl.A. No. 273/2009, decided by the Hon'ble High Court of Delhi on 05.01.2023, wherein the Hon'ble High Court faced with a similar situation, wherein the court below while deciding the appeal, failed to provide effective legal aid to the appellant/accused, with the result that none of the witnesses were cross-examined, at the behest of the accused. The Hon'ble High Court quoted Article 39A, Article 21 and Article 22 of the Constitution of India in the said judgment, and which for ready reference, are also reproduced, herein below:
Articles 39A of the Constitution:
"39A. Equal justice and free legal aid.-The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that CA No. 30/23 Binda Rawat v. State Page No. 7 / 14 opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities."
Article 21 of the Constitution:
"21. Protection of life and personal liberty.-- No person shall be deprived of his life or personal liberty except according to procedure established by law."
Article 22 of the Constitution:
"22. Protection against arrest and detention in certain cases.-- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice..."
15. It is also worth while to observe that the Hon'ble High Court, in the said judgment, has referred to Kartar Singh V. State of Punjab (1994) 3 SCC 569 and Jayendra Vishnu Thakur V. State of Maharashtra (2009) 7 SCC 104 and finally, Zahira Habibullah Sheikh (5) V. State of Gujarat, (2006) 3 SCC 374. In the case of Kartar Singh V. State of Punjab, (1994) 3 SCC 569, the Constitution Bench of Hon'ble Apex Court explained the purpose and importance of cross-examination of a witness. The relevant observations are as under:
"278. Section 137 of the Evidence Act defines what cross-examination means and Section 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid- test of the truthfulness of the statement made by a witness on oath in examination-in- chief, the objects of which are:-
(1) To destroy or weaken the evidentiary value of the witness of his adversary;
(2) To elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party;CA No. 30/23 Binda Rawat v. State Page No. 8 / 14
(3) To show that the witness is unworthy of belief by impeaching the credit of the said witness;
And the questions to be addressed in the course of cross- examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character".
The aforesaid view was further reiterated by the Apex Court in Jayendra Vishnu Thakur V. State of Maharashtra (2009) 7 SCC 104, wherein it was observed that:
"24. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in-chief, cross- examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross- examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradition Act, 1962 which excludes taking of evidence vis-à-vis opinion."
The Hon'ble Apex Court in the case of Zahira Habibullah Sheikh(5) v. State of Gujarat, (2006) 3 SCC 374, has explained the concept of fair trial to an accused and that it was central to the administration of justice and the cardinality of protection of human rights. The observations of Apex Court read as under:
"35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and CA No. 30/23 Binda Rawat v. State Page No. 9 / 14 prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with That would be turning a Nelson eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened CA No. 30/23 Binda Rawat v. State Page No. 10 / 14 or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue, and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny."
16. Thus, there is a whole galaxy of judgments of the Hon'ble superior courts, which emphasize the valuable right of the accused, to be represented and assisted by an advocate, during all stages of trial. It is the duty of the court to ensure that the accused is so provided with legal assistance. Reverting back to the case in hand, it is quite evident that PW1 to PW4, who were examined on the same date, could not be cross-examined, as the accused was not represented by any advocate. The proceeding sheet of the Ld. Trial court of even date, reveals that no question regarding the availability of his advocate, was enquired from the accused nor was he offered the services of a legal aid counsel, so that the valuable right of the accused to cross-examine the witnesses and put forth his defence, was protected. Rather the Ld. Trial Court, has in the most casual and callous manner, if I may say so, just proceeded, at one go, and merely mentioned that "xxxx by accused... 'Nil' opportunity CA No. 30/23 Binda Rawat v. State Page No. 11 / 14 given." 'Opportunity', actually means a reasonable opportunity, to defend himself and cross-examine the witness(s). Worthwhile, it is to note, that even the judgment, which has been passed by the Ld. Trial Court, is very cryptic in nature, since the evidence, which has come on record, has not been discussed in detail. It has not been deliberated upon as to how the driving of the accused (appellant-herein) was found to be 'Rash and Negligent' to hold him guilty u/s 279 IPC, as only thereafter the offence u/s 337/338/304A IPC could have been sustained by co-relating the injuries/fatal injuries, sustained by the injured to the rash and negligent driving of the appellant/accused. It is worthwhile to note that the appellant/accused has been convicted on the conjoint testimony of PW1 to PW6, out of which PW1 to PW4, have not been cross-examined, due to the accused, not having any legal representative. In my opinion, therefore, the trial actually has been vitiated, inasmuch as it did not conform to the basic postulates of Criminal Jurisprudence.
17. At this juncture, the contention of the Ld. Addl. PP for the State that the appellant/accused could easily have moved an application u/s 311 CrPC, for recalling the said witnesses, is a contention, which I do not agree with. When the primary and basic right of the appellant/accused has been violated by the Ld. Trial Court by not performing its duty to provide legal aid counsel to the appellant/accused. Thereafter proceeding to base the conviction of the appellant/accused on the testimony of those witnesses, who were not cross-examined, is a basic infirmity in the trial. There may be umpteen number of options, available to the accused to resort to, if some right of his, has not been CA No. 30/23 Binda Rawat v. State Page No. 12 / 14 conformed to, or has been transgressed. However, it is the primary duty, which first needs to be discharged, before any other legal provisions like u/s 311 CrPC, can be agitated.
18. It is also noted, with immense pain that the Ld. Trial Court, though held the accused guilty of the offence u/s 146/196 of M.V. Act also, besides the offences u/s 279/337/338/304A IPC, but while sentencing the appellant/accused, no sentence was prescribed for the offence u/s 146/196 MV Act.
19. In view of my discussion above, and in view of the facts and circumstances of the case, I am of the opinion that the Judgment dated 25.01.2020 as well as the Order on Sentence dated 11.01.2023, suffers from infirmities, which cannot be ignored. However, in the case in hand, two people have lost their lives, which cannot be by-passed. Accordingly, the appeal is allowed and the order of conviction and sentence dated 20.01.2020 and 11.01.2023 respectively, are set aside. The matter is remanded back to the Ld. Trial Court, to recall PW1 to PW4, and any other witness(s), who were not cross-examined by the accused, before the Ld. Trial Court, and afford an opportunity to the appellant/accused to cross-ermine the said witnesses, effectively by providing him with legal assistance, if the accused is unable to engage a private counsel. The appellant/accused is directed to appear before the Ld. Trial Court/ Successor Court, on 07.08.2023 at 02.00 pm.
20. Bail bonds, which were furnished by the appellant, before this court, shall be cancelled on 07.08.2023, and surety shall also be discharged on 07.08.2023, when he puts his appearance before the Ld. Trial Court on 07.08.2023.
CA No. 30/23 Binda Rawat v. State Page No. 13 / 14Appellant/accused shall furnish a fresh bail bond before the Ld. Trial Court.
21. Trial Court Record be sent back along with a copy of this order. Appeal file be consigned to Record Room, after due compliance.
Digitally signed by SEEMA Announced in the open Court SEEMA MAINI today i.e. 03rd August, 2023 MAINI Date: 2023.08.03 16:57:13 +0530 (Seema Maini )
Principal District & Sessions Judge (North) Rohini Courts/Delhi CA No. 30/23 Binda Rawat v. State Page No. 14 / 14