Delhi District Court
State vs . Malkiyat Singh on 7 December, 2012
IN THE COURT OF SH. SANDEEP GARG, METROPOLITAN
MAGISTRATE (SOUTH)07, NEW DELHI
FIR No. : 351/2003
U/s : 279/304A IPC
PS : Mehrauli
State Vs. Malkiyat Singh
JUDGMENT
a The Sl. No. of the case : 1234/1/03
b The date of commission : 25.07.2003
c The date of Institution of the case : 20.10.2003
d The name of complainant : Ct. Sri Niwas
e The name of accused : Malkiyat Singh S/o Sh. Gian
: Singh, R/o Village Panwa, P.S.
: Dhansuwa (Dasuya), District
: Hoshiarpur, Punjab.
: Current address: B433, Tigri,
: Khanpur, New Delhi.
f The offence complained of : 279/304A IPC
g The plea of accused : Pleaded not guilty
h Arguments heard on : 29.11.2012
i The final order : Convicted
j The date of judgment : 04.12.2012
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The accused Malkiyat Singh has been sent for trial on the allegations of the complainant Ct. Sri Niwas that on 25.07.2003, at about 06:40 pm, at Bandh Road, near Hanuman Mandir, Mehrauli, New Delhi, within jurisdiction of P.S. Mehrauli, he was driving truck bearing registration no. HR559167 in a rash and negligent manner so as to endanger human life and personal safety of others and while so driving, he struck against one Pancham resulting in his death not amounting to culpable homicide. The accused is thus alleged to have committed FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 1 of 23 offences punishable u/s 279/304A. Investigation was conducted and chargesheet was filed in the court on 20.10.2003.
2. Notice u/s 251 Cr.P.C. for commission of offences punishable u/s 279/304A IPC was served upon the accused on 28.02.2004 to which he pleaded not guilty and claimed trial.
3. In order to substantiate its case, the prosecution has examined ten witnesses.
4. PW1 is Ct. Subhash Chand. He has deposed that on 25.07.2003, he was on emergency duty alongwith HC Ramesh Chand at Bandh Road from 08:00 am to 08:00 pm. He had joined investigation of the case alongwith IO after receiving information vide DD No. 21A. He and IO reached at Bandh Road, near Hanuman Mandir, where they found one truck bearing registration no. HR559167 and one bicycle in an accidental condition. They came to know that the injured had already been taken to the hospital. The driver of the offending vehicle was present at the spot alongwith Ct. Srinivas and Ct. Girdhari. Ct. Srinivas and Ct. Girdhari were on patrolling duty on a motorcycle. IO recorded statement of Ct. Srinivas, prepared rukka and got the case registered through him. After getting the FIR registered, he returned at the spot and handed over copy of FIR, rukka to the IO. The accused disclosed his name as Malkiyat Singh. The witness correctly identified the accused present in the court. The accused was arrested and arrest memo, Ex. PW1/A was prepared. His personal search was conducted and personal search memo, Ex. PW1/B was prepared. IO also seized the driving license, RC and Insurance Policy from the possession of the accused and prepared seizure memos, Ex. PW1/C and Ex. PW1/D respectively. The post mortem of the dead body was got conducted on the next date and the dead body FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 2 of 23 was handed over to relatives of the deceased vide memo, Ex. PW1/E. His statement was recorded by the IO.
During cross examination by the Ld. defence counsel, the witness has stated that the cycle was lying towards the backside of the front wheel of the truck. The front side of the dumper truck was towards Chandanhaula. The offending truck was loading small stones. Some pieces of wood were also loaded on the carrier of the cycle. The accident occurred in front of Hanuman Mandir. The truck was found parked towards left side of the road. The cycle was lying towards the left side of the driver's seat. He went to the P.S. alongwith the rukka at about 06:30 pm and returned at the spot at about 10:00 pm after registration of the FIR. They returned to the P.S. at about 01:00 pm alongwith the accused.
5. PW2 is Ct. Girdhari Lal. He has deposed that on 25.07.2003, he was on motorcycle duty no. SM8 from 09:00 am to 09:00 pm alongwith Ct. Srinivas. At about 06:40 pm, when they reached near Hanuman Mandir, Bandh Road, in front of Chadha Farmhouse, they found one cyclist coming from Chandanhaula Bandh Road side and was going towards Jaunapur side. In the meanwhile, one dumper truck bearing registration no. HR559167 came from the side of Gadaipur which was being driven at a fast speed and in a rash and negligent manner. The dumper truck struck against the cycle coming from ChandanhaulaBandh Road side as a result of which the cyclist fell down and sustained multiple injuries. The driver of the offending dumper truck stopped his vehicle and they caught hold of him. His name was disclosed as Malkiyat Singh. The witness correctly identified the accused present in the court. He picked up the injured and took him to the side of the road. Upon inquiry, his name was revealed as Pancham. He was bleeding profusely. Ct. Srinivas gave information to the P.S. and a PCR van came at the FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 3 of 23 spot. The PCR van took the injured to the hospital. IO/HC Ramesh Chandra and Ct. Subhash also reached at the spot and they handed over the accused alongwith the case property to IO/HC Ramesh Chandra. IO recorded statement of Ct. Srinivas, prepared rukka and got the case registered through Ct. Subhash. IO also prepared a site plan at the instance of Ct. Srinivas, seized the case property and prepared seizure memo, Ex. PW2/A. The accused was arrested and arrest memo, Ex. PW1/A was prepared. The driving license of the accused was seized and seizure memo, Ex. PW1/C was prepared. His statement was recorded by the IO.
During cross examination by the Ld. defence counsel, the witness has stated that he was driving the motorcycle. IO reached at the spot at about 07:15 pm. He does not remember if any repair work was going on at the road. Ct. Subhash took the rukka to the P.S. at about 09:00 pm and returned back at about 10:00 pm. He saw the incident from a distance of about 1520 feet. The road, where the accident took place, was about 2025 feet wide. There was no central verge on the road. The dumper truck was running towards the wrong side of the road and was going from Gadaipur towards Chandanhaula. He denied the suggestion that the cyclist was driving on the wrong side. He denied that pieces of wood were tied up on the carrier of the bicycle. He denied that due to bad condition of the road owing to repair work and the wooden pieces tied on the carrier, the cyclist fell down in front of the offending dumper truck.
6. PW3 is Ramdin. He has deposed that deceased Pancham was his nephew and he identified the dead body vide memo, Ex. PW3/A.
7. PW4 is Shadi Lal, Retd. Foreman, DTC. He, being the mechanical inspector, proved his mechanical inspection report in respect of offending vehicle, Ex. PW4/A. FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 4 of 23
8. PW5 is Tulsiram. He has deposed that deceased Pancham was his nephew and he identified the dead body vide memo, Ex. PW5/A and received the dead body vide memo, Ex. PW1/E.
9. PW6 is ASI Virender Singh. He, being duty officer, proved FIR, Ex. PW6/A.
10. PW7 is Rajrani Gupta. She produced the offending dumper truck bearing registration no. HR559167, Ex. P1 and proved superdaginama, Ex. PW7/A.
11. PW8 is Dr. Manish Kumath. He proved the handwriting and signatures of Dr. Parthasarthy on post mortem report bearing no. 780/03 dated 26.07.2003 in respect of deceased Pancham, Ex. PW8/A. As per the post mortem report, the cause of death is hemorrhagic shock due to multiple injuries caused by blunt force which is possible in road traffic accident.
12. PW9 is complainant Ct. Sri Niwas. He has deposed that on on 25.07.2003, he was on motorcycle duty no. SM8 from 09:00 am to 09:00 pm alongwith Ct. Girdhari. At about 06:40 pm, when they reached near Hanuman Mandir, Bandh Road, opposite Chadha Farmhouse, they found one cyclist coming from ChandanhaulaBandh Road side and was going towards Jaunapur side. In the meanwhile, one dumper truck bearing registration no. HR559167 came from the side of Jaunapur and was going towards Chandanhaula which was being driven at a fast speed and in a zigzag manner. They stopped the truck and shifted the injured towards the side of the road with the help of the accused, driver of the offending truck. The witness correctly identified the accused present in the court. He informed 53 through wireless message. PCR came at the spot and took the injured to AIIMS Hospital. HC Ramesh also reached there alongwith Ct. Subhash FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 5 of 23 and they handed over the offending truck, cycle and the accused to the IO. IO recorded his statement at the spot which is Ex. PW9/A, prepared site plan at his instance, Mark A. The IO seized the offending truck vide seizure memo, Ex. PW2/B. The bicycle was also seized vide seizure memo, Ex. PW2/A. Accused was arrested and his arrest memo, Ex. PW1/A was prepared. His personal search was conducted and personal search memo, Ex. PW1/B was prepared.
During cross examination by the Ld. defence counsel, the witness has stated that they saw the accident from a distance of 1520 feet. The width of the road where the accident took place was 15 feet. He admitted that the level of road was about 5 feet higher than the ground level. He further admitted that work of repair of the road was going on on that day. He denied the suggestion that the machine deployed for repairing the road was adjacent to the spot where the accident took place. It was deployed at a distance of about 10 metres from the spot where the accident took place. He admitted that the offending dumper truck had left after reloading the stonecharcoal mixture in the machine deployed for repairing the road. He admitted that there was no turn on the road between the spot and the place where the machine for repairing the road was deployed. The offending dumper truck was being driven approximately at a speed of 35 kms/hour at the time of the accident. The offending dumper truck stopped at a distance of 56 metres, from the spot, in the middle of the road. The accused had stopped the offending vehicle only on their signal. He did not notice as to whether the cyclist had loaded any firewood, 56 feet long, on the carrier of his cycle or not. The cycle had fallen at a distance of 23 feet away from the truck on its left side. The cycle and cyclist had fallen down on the road itself and not on the unmetalled part situated besides the road. He denied the suggestion that the firewood loaded on the FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 6 of 23 carrier of the bicycle had hit the offending dumper truck, as a result of which the cyclist lost his balance, fell down and sustained injuries caused by the wood which fell upon him.
He had given the message on wireless set to the IO, who reached at the spot after about 1520 minutes. He was sitting as a pillion rider on the motorcycle which was being driven by Ct. Girdhari Lal. He does not remember if street lights were installed at the spot or not. IO remained at the spot for about 3045 minutes. Natural light was still there when IO was present at the spot. He denied that the incident took place due to fault of the cyclist and not of the accused. They were standing at the time when the incident took place. They saw the incident from a distance of about 15 yards. The offending dumper truck was running in the middle of the road which is dual carriage way. The cyclist was running besides the truck. He admitted that the level of the road was about 2½ feet higher than the un metalled adjoining portion situated besides it.
13. PW10 is IO HC Ramesh Chand. He has deposed that on 25.07.2003, upon receipt of information vide DD No. 21A, he and Ct. Subhash went to Bandh Road, Near Hanuman Mandir. They found one dumper truck bearing registration no. HR559167 and a bicycle lying in accidental condition. Ct. Srinivas and Ct. Girdhari Lal were present at the spot. Ct. Srinivas narrated him about the incident. He recorded the statement of Ct. Srinivas which is Ex. PW9/A. He prepared rukka, Ex. PW10/A and got the FIR registered through Ct. Subhash. He prepared site plan, Ex. PW10/B at the instance of Ct. Srinivas. The accused Malkiyat Singh was also present at the spot. The witness correctly identified the accused present in the court. He seized the offending dumper truck, bicycle and prepared seizure memos, Ex. PW2/A & Ex. PW2/B. Ct. Subhash came back at the spot and FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 7 of 23 handed over copy of the FIR, rukka to him. Challan slip of RC, xerox copy of insurance policy were seized and seizure memos, Ex. PW10/C & Ex. PW10/D respectively were prepared. Driving license of the accused was seized and seizure memo, Ex. PW1/C was prepared. Accused was arrested and arrest memo, Ex. PW1/A was prepared. His personal search was conducted and personal search memo, Ex. PW1/B was prepared. The accused was released on bail on furnishing personal bond, Ex. PW10/C. The offending dumper truck was got mechanically examined and mechanical inspection report, Ex. PW4/A was prepared. On 26.07.2003, the injured Pancham expired and post mortem of his dead body was got conducted. After identification of the dead body, the same was handed over to its relatives vide memos, Ex. PW1/E, Ex. PW3/A & Ex. PW5/A. He recorded statements of witnesses.
During cross examination by the Ld. defence counsel, the witness has stated that he received information regarding the accident at about 06:40 pm and reached at the spot at about 07:15 pm. He admitted that he did not file copy of any DD entry to establish that Ct. Srinivas and Ct. Girdhari were on patrolling duty. The offending dumper truck was not found loaded with any bitumen. There was no street lighting on the road where the accident took place. He denied that a road roller or a mixture machine was found parked near the spot where the accident took place. He admitted that the level of the road was about 3 feet higher than the unmetalled portion situated adjoining the road. Photographs of the spot, offending dumper truck and the bicycle were not taken by him. He admitted that the site plan does not bear signatures of Ct. Srinivas. The cycle was lying at a distance of about 34 feet away from the offending dumper truck. When he reached at the spot, no passersby were present. He denied that the cyclist lost his balance as a result of FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 8 of 23 which, he fell down and sustained injuries caused by the firewood tied on the carrier of the bicycle. He denied that the accused was not driving the offending dumper truck when the alleged accident took place and the offending dumper truck was parked in a stationary position. He denied the suggestion that the offending dumper truck was loaded with bitumen. He denied that construction of road was going on at the spot.
14. All the incriminating evidence was put to the accused Malkiyat Singh and his statement U/s 281 Cr.P.C. was recorded to which he denied his involvement in the offence stating that the deceased Pancham was carrying a big bundle of wood on the carrier of his bicycle. The bundle of wood got stuck with a road side tree, as a result of which, he lost balance of the cycle and fell down. The deceased sustained injuries as he was hit by the bundle of wood carried by him on the carrier of his bicycle. However, the accused preferred not to lead any defence evidence.
15. The court has heard the submissions made by Ld. APP for the state as well as the Ld. defence counsel.
Ld. APP for the state submits that the accused is liable to be convicted for offences charged as the prosecution has been able to bring home guilt of the accused.
16. On the other hand, it is contended by the Ld. Defence Counsel that PW1 Ct. Subhash Chand admitted during cross examination that some pieces of wood were also loaded on the carrier of the bicycle driven by deceased Pancham. As a matter of fact, the wooden pieces loaded on the carrier of the bicycle driven by the deceased had got stuck against the dumper truck driven by the accused, as a result of which the cycle driven by the deceased Pancham lost balance and the FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 9 of 23 deceased fell down alongwith the bicycle. He sustained injuries from the firewood carried by him on the carrier of his cycle, which hit him.
On the other hand, it is contended by Ld. APP for State that PW1 Ct. Subhash Chand is not an eye witness. Although, he has admitted during cross examination that some pieces of wood were loaded on the carrier of the bicycle driven by the deceased, but the eye witnesses PW2 Girdhari Lal and PW9 Ct. Srinivas have categorically deposed that the offending dumper truck was being driven by the accused in a rash/negligent manner at a very high speed. It was being driven in a zigzag manner as well and it hit the cycle driven by the deceased, as a result of which the cyclist fell down and sustained multiple injuries. Once the prosecution has succeeded in establishing that the offending vehicle was being driven in a rash/negligent manner at a very high speed and in a zigzag manner, the burden of proving that the wooden pieces loaded on the carrier of the bicycle driven by the deceased had got stuck against the dumper truck driven by the accused, as a result of which the cycle driven by the deceased Pancham lost balance and the deceased fell down alongwith the bicycle, was on the accused and accused has failed to discharge the onus of establishing his defence. Moreover, the witness was not cross examined to find out the length of the wood carried by the deceased to establish that it was long enough to have struck against the offending dumper truck. In any case, the defence tried to be set up by the accused is contradictory as on one hand, a suggestion was given to PW9 Ct. Srinivas to the effect that the wood loaded on the carrier of the bicycle had hit the truck, as a result of which the deceased lost balance and fell down alongwith the bicycle, whereas on the other hand, the accused stated during his statement recorded u/s 313 Cr.P.C. that the bundle of wood carried by the deceased on his bicycle got FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 10 of 23 struck with a tree situated on the roadside, as a result of which the cyclist lost balance and fell down alongwith the bicycle. This exposes the falsity of the defence tried to be set up by the accused.
17. Secondly, it is contended by the Ld. defence counsel that on one hand, PW2 Ct. Girdhari Lal deposed during cross examination that IO reached at the spot at about 07:15 pm and Ct. Subhash returned back at the spot after getting the FIR registered at 10:00 pm, whereas on the other hand, PW9 Ct. Srinivas stated during cross examination that IO remained at the spot for about 3045 minutes. This exposes the falsity of the prosecution story that all the proceedings were conducted at the spot. Moreover, PW10 IO HC Ramesh Chand has admitted during cross examination that there was no street light on the road where the accident took place. In the absence of light, no proceedings could have been conducted at the spot and all the documents were subsequently prepared while sitting in the police station. The accused deserves to be acquitted of the charges leveled against him as the proceedings conducted by IO stand vitiated.
On the other hand, it is contended by Ld. APP for State that PW9 Ct. Srinivas was examined after a lapse of more than five years after the date of the accident and therefore, some loss of memory is natural. Moreover, the inconsistencies in the testimonies of the prosecution witnesses regarding the time for which the IO remained at the spot are not material. It has been established that IO HC Ramesh Chand had gone at the spot alongwith Ct. Subhash Chand and he recorded statement of Ct. Srinivas, prepared rukka and sent Ct. Subhash Chand for registration of FIR. Till the time, Ct. Subhash Chand came back alongwith copy of the FIR, IO had got adequate time to prepare site plan, seizure memos, arrest memo and personal search memo. As regards absence of street light, it is FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 11 of 23 submitted by Ld. APP for State that PW9 Ct. Srinivas has deposed during cross examination that natural light was available when IO was present at the spot. Reliance is also placed upon judgment delivered by a Division Bench of Hon'ble High Court of Delhi in the case of 'Mohd. Naseem Vs. State 167 (2010) DLT 104 (DB)' wherein it has been observed that normal discrepancies or errors do creep in because every human being has human failings and limitations. It has to be ascertained whether the prosecution has proved its case by looking at broad probabilities of the case and thereafter, to see and identify embellishments and then determine whether embellishments have dented broad probabilities proved by the prosecution. Where a fool proof case without any embellishment or variation is brought before a court, that by itself becomes a ground to suspect credibility of case.
18. Thirdly, it is contended by the Ld. defence counsel that admittedly, mechanical inspection of the bicycle driven by the deceased was not got conducted by the IO. Therefore, the nature of damages caused on the bicycle could not be known. It was incumbent upon the prosecution to establish the identity of the bicycle by producing the same during trial. However, the bicycle was not produced in the court during trial and its identity could not be established. Since the prosecution has failed to adduce the required evidence, accused deserves to be acquitted of the charges leveled against him.
On the other hand, it is contended by Ld. APP for State that the bicycle driven by the deceased was seized during investigation. However, it was not got mechanically inspected by the IO. The mechanical inspection of the vehicle involved in the accident and producing the same during trial serves the purpose of corroborating the other evidence on record. Absence of mechanical FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 12 of 23 inspection and non production of the vehicle during trial can not by itself be a ground for discarding the other cogent and convincing evidence adduced by the prosecution. The evidence adduced by the prosecution has to be appraised in totallity. The eye witnesses PW2 Ct. Girdhari and PW9 Ct. Srinivas have given detailed description of the accident and the prosecution has been successful in establishing the guilt of the accused notwithstanding the fact that the cycle involved in the accident was neither mechanically inspected, nor produced in the court during trial.
19. Fourthly, it is contended by the Ld. defence counsel that the site plan, Ex. PW10/B does not bear the signatures of Ct. Srinivas at whose instance the site plan is claimed to have been prepared. Moreover, it has not been indicated in the site plan as to from where the two eye witnesses saw the incident to determine from which angle and from what distance they had witnessed the accident. This lapse on the part of the prosecution materially affects the appraisal of the testimonies of PW2 Ct. Girdhari Lal and PW9 Ct. Srinivas.
On the other hand, it is contended by Ld. APP for State that the site plan is just a corroborative piece of evidence. Moreover, it is not essential to obtain the signatures of Ct. Srinivas on the site plan. In any case, lapse on the part of the IO in not obtaining the signatures of Ct. Srinivas on the site plan is not material and it does not negate the other cogent and convincing evidence adduced by the prosecution. It has come on record during cross examination of PW2 Ct. Girdhari Lal and PW9 Ct. Srinivas that they saw the accident from a distance of about 1520 feet.
20. Fifthly, it is emphatically contended by the Ld. defence counsel that the complainant PW9 Ct. Srinivas has nowhere mentioned in his statement that FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 13 of 23 the accused was driving the offending dumper truck either rashly or negligently. It is incumbent upon the prosecution to establish that the offending vehicle was being driven either rashly or negligently. PW9 Ct. Srinivas has only deposed that the offending vehicle was being driven at a fast speed. Merely driving a vehicle at a high speed by itself does not establish that the same was being driven either rashly or negligently. Reliance is placed upon judgment delivered by Hon'ble Supreme Court of India in the case of 'State of Karnataka Vs. Satish 1998 SCC (Cri.) 1508' and judgment delivered by Hon'ble High Court of Delhi in the case of 'Abdul Subhan Vs. State (NCT of Delhi) 2007 (4) JCC 3148' wherein it has been observed that it is not sufficient to establish that the offending vehicle was being driven at a high speed, but it has to be established that the offending vehicle was driven either rashly or negligently.
On the other hand, it is contended by Ld. APP for State that PW9 Ct. Srinivas has not only deposed that the offending dumper truck was being driven by the accused at a very high speed, but he has also deposed that the offending vehicle was being driven in a zigzag manner. In addition to this, PW2 Ct. Girdhari Lal has categorically deposed that the offending dumper truck was being driven by the accused at a very high speed and in a rash/negligent manner. Moreover, it is not essential that the witnesses should use the words 'rashly' or 'negligently' and the court has to find out if the offending vehicle was driven rashly or negligently by appraising the testimony of the prosecution witnesses. Mere absence of use of the words 'rashly' or 'negligently' can not by itself be a ground for discarding the prosecution evidence. Reliance is placed upon judgment delivered by Hon'ble High Court in the case of 'Paras Nath Vs. State of Delhi 2003 (3) JCC 1500' wherein it has been observed that the court has to find out if FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 14 of 23 the driver of the offending vehicle was driving in public place rashly and in negligent manner so as to endanger human life or to be likely to cause hurt or death of any other person. Rashness or negligence can be determined from the manner in which the accident had taken place.
21. Sixthly, it is contended by the Ld. defence counsel that PW10 HC Ramesh Chand has admitted during cross examination that he had not filed copy of the DD entry whereby PW2 Ct. Girdhari Lal and PW9 Ct. Srinivas had left the P.S. for going on patrolling duty. Therefore, even the presence of both the eye witnesses is doubtful and the same can not be relied upon.
On the other hand, it is contended by Ld. APP for State that copy of DD entry whereby PW2 Ct. Girdhari Lal and PW9 Ct. Srinivas had left the P.S. for going on patrolling duty is only of corroborative value. It is not essential to prove the said DD entry. Both these eye witnesses have given detailed description of the entire course of events including the manner, by whom the offending vehicle was being driven, the distance between the spot of occurrence and the place where they were present, the level of road, the directions from which both the vehicles were plying, the side on which the bicycle and deceased fell after impact of the accident, the extent of bleeding coming out from the person of the deceased, their shifting the injured Pancham towards the corner of the road, the factum of giving wireless message. All the prosecution witnesses successfully withstood the test of cross examination and nothing material could come out during their cross examination. The evidence adduced by the prosecution on record is cogent and convincing which inspires confidence. Mere lapse in not proving copy of the DD entry whereby PW2 Ct. Girdhari Lal and PW9 Ct. Srinivas left the P.S. for going on patrolling duty, can not by itself be a ground for FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 15 of 23 discarding the prosecution evidence.
22. Seventhly, it is contended by the Ld. defence counsel that no photographs of the spot, offending vehicle and the bicycle were taken by the IO. This lapse deprives the court of an opportunity to appraise the exact topography of the area where the incident took place and the condition in which the vehicles involved in the accident were found immediately after the accident. Reliance is placed upon judgment delivered by Hon'ble High Court of Delhi in the case of 'Abdul Subhan Vs. State (NCT of Delhi) 2007 (4) JCC 3148' wherein it has been observed that as a rule, photographs ought to be taken, not only of the vehicles involved in the collision, but also of the site and surrounding areas so that the exact topography can be easily discerned by the courts.
On the other hand, it is contended by the Ld. APP for State that the photographs serve the purpose of corroboration. Lapse on the part of the IO in not obtaining the photographs can not by itself be a ground for discarding the other cogent and convincing evidence adduced on record.
23. Eighthly, it is contended by the Ld. defence counsel that as per the prosecution case, the alleged accident took place near Hanuman Mandir, Bandh Road, New Delhi. The prosecution has failed to examine even a single independent public witness in support of its case. Since the alleged incident took place on a public road, it is likely that the alleged accident would have been witnessed by a number of passersby. Non examination of an independent public witness casts serious doubts on the veracity of the prosecution case.
On the other hand, it is contended by Ld. APP for State that PW10 IO HC Ramesh Chand has categorically stated during cross examination that no passersby were present at the spot when they reached there. Due to non FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 16 of 23 availability, no independent public witness could be examined by the prosecution.
24. The court has perused the record with the assistance of Ld. APP for State and the Ld. Defence Counsel.
25. The contention of the Ld. defence counsel that the deceased Pancham was carrying wooden pieces on the carrier of his bicycle which struck against the dumper truck driven by the accused as a result of which the deceased lost balance and fell down alongwith his bicycle, is not tenable as mere admission by PW1 Ct. Subhash Chand that some pieces of wood were loaded on the carrier of the bicycle driven by the deceased does not establish that the said wooden pieces got struck against the offending dumper truck driven by the accused as a result of which the deceased lost balance, fell down and sustained injuries. Once the prosecution has succeeded in establishing that the offending vehicle was being driven in a rash/negligent manner at a very high speed and in a zigzag manner, the burden of proving that the wooden pieces loaded on the carrier of the bicycle driven by the deceased had got stuck against the dumper truck driven by the accused, as a result of which the cycle driven by the deceased Pancham lost balance and the deceased fell down alongwith the bicycle, was on the accused and accused has failed to discharge the onus of establishing his defence. PW2 Ct. Girdhari Lal and PW9 Ct. Srinivas have categorically deposed that the offending dumper truck was being driven by the accused in a rash/negligent manner at a very high speed, in a zigzag manner and it hit the cycle driven by the deceased as a result of which the cyclist fell down and sustained multiple injuries. Both these witnesses were cross examined at length, but nothing material could come out during their cross examination. The testimonies of both these eye witnesses are cogent, convincing and inspire confidence.
FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 17 of 23
26. The second contention of the Ld. defence counsel that the discrepancies in the testimonies of PW2 Ct. Girdhari Lal and PW9 Ct. Srinivas regarding the time for which the IO remained at the spot and admission of PW10 IO HC Ramesh Chand that there was no street light on the road, establish the falsity of the prosecution story, is not tenable as it has been established on record that PW10 IO HC Ramesh Chand had gone to the spot alongwith Ct. Subhash Chand where he recorded the statement of Ct. Srinivas, prepared rukka and sent Ct. Subhash Chand for registration of FIR. Till the time, Ct. Subhash Chand came back alongwith copy of FIR, IO had got adequate time to prepare site plan, seizure memos, arrest memo and personal search memo. Therefore, it is immaterial that the IO remained on spot till 10:00 pm or only for 3045 minutes. Minor discrepancies in the testimonies of witnesses are quite normal. It has been observed by a Division Bench of Hon'ble High Court of Delhi in the case of 'Mohd. Naseem Vs. State 167 (2010) DLT 104 (DB)' wherein it has been observed that normal discrepancies or errors do creep in because every human being has human failings and limitations. It has to be ascertained whether the prosecution has proved its case by looking at broad probabilities of the case and thereafter, to see and identify embellishments and then determine whether embellishments have dented broad probabilities proved by the prosecution. Where a fool proof case without any embellishment or variation is brought before a court, that by itself becomes a ground to suspect credibility of case. PW9 Ct. Srinivas has stated during cross examination that natural light was available when IO was present at the spot. This part of testimony of PW9 Ct. Srinivas has remained un rebutted despite detailed cross examination.
27. The third contention of the Ld. defence counsel that since the bicycle FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 18 of 23 driven by the deceased was neither got mechanically inspected, nor produced in the court during trial, its identity could not be established and therefore, the prosecution failed to substantiate the guilt of the accused, is not tenable. Both the eye witnesses PW2 Ct. Girdhari Lal and PW9 Ct. Srinivas have given detailed description of the entire course of events including the manner, by whom the offending vehicle was being driven, the distance between the spot of occurrence and the place where they were present, the level of road, the directions from which both the vehicles were plying, the side on which the bicycle and deceased fell after impact of the accident, the extent of bleeding coming out from the person of the deceased, their shifting the injured Pancham towards the corner of the road, the factum of giving wireless message. All the prosecution witnesses successfully withstood the test of cross examination and nothing material could come out during their cross examination. The evidence adduced by the prosecution on record is cogent and convincing which inspires confidence. The testimonies of these two witnesses have been corroborated by PW1 Ct. Subhash Chand and PW10 IO HC Ramesh Chand. Therefore, the prosecution has been successful in establishing that the collision took place between the offending dumper truck and the bicycle driven by the deceased. Mechanical inspection of a vehicle involved in an accident and its production in the court during trial serves the purpose of corroboration. Its absence can not be a ground to discard the other cogent and convincing evidence adduced by the prosecution.
28. PW2 Ct. Girdhari Lal and PW9 Ct. Srinivas have stated during cross examination that they saw the accident from a distance of about 1520 feet. Site plan is a corroborative piece of evidence and not obtaining signatures of eye witness PW9 Srinivas, absence of indication of the spot from which the eye FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 19 of 23 witnesses saw the collision is not material. Therefore, there is no merit in the contention raised by the Ld. defence counsel.
29. It has been established on record from the testimonies of PW2 Ct. Girdhari Lal and PW9 Ct. Srinivas that the offending dumper truck was being driven at a high speed and in a zigzag manner. PW2 Ct. Girdhari Lal has also stated that the offending vehicle was being driven in a rash/negligent manner. Both the witnesses have withstood the stringent test of cross examination and nothing material could come out during their cross examination. Driving in a zigzag manner by itself establishes that the offending dumper truck was being driven in a rash or negligent manner. Therefore, there is no merit in the contention raised by the Ld. defence counsel.
30. Both PW2 Ct. Girdhari Lal and PW9 Ct. Srinivas have given a detailed description of the entire course of events. Their testimonies are corroborated by PW1 Ct. Subhash Chand and PW10 IO HC Ramesh Chand. Non filing of DD entry whereby Ct. Girdhari Lal and Ct. Srinivas left the P.S. for patrolling duty is not material and does not affect the veracity of the prosecution case. Therefore, there is no merit in the contention raised by the Ld. defence counsel.
31. Photographs are corroborative piece of evidence. Non obtaining and filing of photographs of the vehicles involved in the collision, spot is not a material lapse which may be fatal to the prosecution case. Therefore, there is no merit in the contention raised by the Ld. defence counsel.
32. PW10 IO HC Ramesh Chand has categorically stated during cross examination that no passersby were present at the spot when they reached there. Therefore, the contention of the Ld. defence counsel that no independent public FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 20 of 23 witness was examined is not tenable.
33. Considering the evidence adduced by the prosecution on record, which is quiet cogent & convincing, the Court holds that the prosecution has successfully discharged the onus of proving that on 25.07.2003, at about 06:40 pm, at Bandh Road, near Hanuman Mandir, Mehrauli, New Delhi, within jurisdiction of P.S. Mehrauli, he was driving truck bearing registration no. HR559167 in a rash and negligent manner so as to endanger human life and personal safety of others and while so driving, he struck against Pancham resulting in his death not amounting to culpable homicide. Accordingly, accused Malkiyat Singh is held guilty for having committed offences punishable u/s 279/304A IPC and is convicted for the said offences.
Announced in the open (Sandeep Garg)
Court on 04.12.2012 MM(South)07,
New Delhi.
FIR No. 351/2003 PS: Mehrauli
State Vs. Malkiyat Singh 21 of 23
FIR No. 351/03 PS: Mehrauli
ORDER ON POINT OF SENTENCE
07.12.2012
At 2:00 pm
Present : Ld. APP for State.
Convict Malkiyat Singh with Sh. Vivek Mahajan and Sh. Nihal Singh Gurjar, Advocates.
Ld. counsel for convict submits that the convict has got clear antecedents and he has never been previously convicted in any criminal case. He has got a wife and two minor children to be looked after. He is sole bread earner of the family. He has recently undergone an eye surgery. He is an old man having feeble health. The legal representatives of the deceased had received compensation from the Motor Accidents Claims Tribunal in the year 2008 itself. The convict may be given a chance to reform himself by resorting to benevolent provisions of probation.
On the other hand, Ld. APP for State places reliance upon judgment of Hon'ble Supreme Court in the case of 'Dalbir Singh Vs. State of Haryana & Ors. AIR 2000 SC 1677 (1)' and judgments of Hon'ble High Court in the case of 'Ashok Kumar Dogra Vs. State (NCT of Delhi) 2009 I AD (Cr.) (DHC) 217' and 'Vinod Shah Vs. State of NCT of Delhi 2012 VIII AD (Delhi) 120', contending that it has been held that offence punishable u/s 304A IPC does not attract benevolent provisions of probation and the prime consideration in cases of fatal accidents should be deterrence in order to reduce the high rate of motor accidents due to callous driving of motor vehicles.
Heard. The offence committed by the convict is grave in nature, whereby he was driving the offending dumper truck in a rash/negligent manner FIR No. 351/2003 PS: Mehrauli State Vs. Malkiyat Singh 22 of 23 and while so driving, he struck against one Pancham which resulted in his death. The incidents of fatal accidents have risen tremendously in the past couple of years. In fact, the number of deaths caused in road accidents is much more than deaths caused under natural circumstances. Keeping in view the law laid down by the Hon'ble Supreme Court of India and the Hon'ble High Court (Supra), the court is of the considered opinion that the convict does not deserve to be given the benefit of probation. However, keeping in view the age and feeble health of the convict, he is sentenced to undergo rigorous imprisonment for six months and with fine of Rs. 500/ for commission of offence punishable u/s 279 IPC. Further, he is sentenced to undergo rigorous imprisonment for one year and with fine of Rs. 4,500/ for commission of offence punishable u/s 304A IPC. In default of payment of fine, the convict shall undergo further simple imprisonment for thirty days. Both the sentences shall run concurrently.
At this stage, Ld. Counsel for convict has filed an application u/s 389 (3) Cr.P.C. for suspension of sentence as the convict intends to prefer an appeal. The application is allowed and sentence is suspended for a period of thirty days. Fine of Rs. 5,000/ has been deposited. Convict is admitted to bail on furnishing of personal bond in the sum of Rs. 20,000/ with one surety of like amount. Bail bonds furnished and accepted till 07.01.2013. Copy of this order be given dasti to the convict. File be consigned to record room.
Announced in the open (Sandeep Garg)
Court on 07.12.2012 MM(South)07,
New Delhi.
FIR No. 351/2003 PS: Mehrauli
State Vs. Malkiyat Singh 23 of 23