Indian Kanoon - Search engine for Indian Law

Delhi District Court

Devender vs The State (Govt. Of Nct Of Delhi) on 5 May, 2016

                       IN THE COURT OF SHRI AMIT BANSAL 
      ADDITIONAL SESSIONS JUDGE­04, NEW DELHI DISTRICT
                       PATIALA HOUSE COURTS, NEW DELHI



Unique I D No.                                 :     02403R0137542013
Criminal Appeal Number                         :     53/1/14 dated 12.03.2014
FIR No.                                        :     221/1999
PS:                                            :     R K Puram 
U/S:                                           :     279/337/304A IPC


Devender 
S/o Sh Mahender Singh
R/o Gurudwara Mai Bhago,
Prabhat Road, Dev Nagar,
Karol Bagh,
New Delhi­110005.                                                  .....Appellant

                                               versus

The State (Govt. of NCT of Delhi)                                  .....Respondent 



                                            Appeal received by Court    : 01.10.2013
                                            Arguments concluded       : 27.04.2016
                                            Date of judgment             : 05.05.2016


                                      JUDGMENT:

1 By way of present appeal, the appellant herein has challenged the CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.1/25 judgment of conviction dated 17.08.2013 passed by Sh. Prashant Sharma, Ld. MM­07, PHC, New Delhi whereby the appellant/accused was held guilty for the offences punishable under sections 279/337/304­A IPC and the consequent order on sentence dated 31.08.2013 whereby the appellant was awarded a sentence to undergo RI for 06 months with fine of Rs.1000/­ for commission of offence punishable under section 279 IPC, RI for 06 months with fine of Rs 500/­ for commission of offence punishable u/s 337 IPC and RI for 02 years and a fine of Rs. 10,000/­ for the commission of offence u/s 304­A IPC. It was mentioned in the order on sentence dated 31.08.2013 that all the substantive sentences shall run concurrently. 2 The case of the prosecution unfolded when DD No. 29A was received by PW7 Insp. Dalip Kumar (IO), pertaining to one accident at Africa Avenue chowk, ring road, New Delhi. On receiving the said information, he along with PW6/Ct Anil reached at the spot which was the road leading towards SJ hospital at about 10.45pm, where they found one Maruti Car bearing no. DL 6CD 6574 and a truck bearing no. DL 1GA 5519 in an accidental condition. IO left PW6 at the spot and proceeded to SJ hospital where he collected the MLC of Ms Simran, who was brought dead as per opinion of the doctor. At the hospital itself, IO met injured PW1 Ms Charu Rehlan who disclosed the manner in which the accident in question had occurred.

3 Briefly stated, the facts of the case are that PW1 Ms Charu Rehlan in CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.2/25 her statement dated 16.03.1999 Ex PW1/A before the police stated that on the said date at about 10.30pm she was travelling along with her friends namely Ms Renu and Ms Harsimrat @ Simran (since deceased) in her Maruti car no. DL 6CD 8574 (offended vehicle) from Anand Niketan towards her house, she was driving the offended vehicle and when the said vehicle reached the red light of Ring road, Bhikaji Cama Place, New Delhi then she stopped the vehicle due to red light. She further stated that in the meanwhile one truck no. DL 1GA 5519 (offending vehicle), which was overloaded and was being driven by its driver in a rash and negligent manner at a high speed came and hit it with the offended vehicle from back side while trying to overtake their car from the left side due to which it suddenly fell upon their car and as a result of which she sustained injuries along with the commuters of the said car. She claimed that she could identify the driver of the said truck, if shown to her. As per the case of prosecution, Ms Harsimrat (since deceased) expired due to the injuries received in the said accident whereas Ms Charu Rehlan received simple blunt injuries. 4 On the above mentioned statement Ex PW1/A, the IO made his endorsement Ex PW7/A and handed it over to PW6 Ct Anil Kumar for registration of FIR. Subsequently, the FIR Ex PW4/B was registered. During investigation, IO prepared the site plan Ex PW7/B at the instance of the complainant/PW1, seized the offended vehicle i.e. Maruti car vide seizure memo Ex PW6/A, seized the offending vehicle i.e. truck vide CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.3/25 seizure memo Ex PW6/B, deposited the vehicles in the malkhana, recorded the statements of witnesses who had identified the deceased Harsimrat @ Simran vide memos ExPW7/C and Ex PW7/D. He got postmortem of the deceased conducted and took the receipt of the delivery of the dead body from its relatives vide memo Ex PW7/A. IO issued notice u/s 133 MV Act (Ex PW7/F), obtained the reply Ex PW7/G from the owner of the offending truck, arrested the accused and got the personal search of accused vide memos Ex PW7/H and Ex PW6/C respectively, got conducted the mechanical inspection of offended vehicle vide memo Ex PW2/A, got conducted the mechanical inspection of offending vehicle vide memo Ex PW2/B, obtained the MLC Ex A2 of deceased, obtained MLC Ex A3 of injured Ms Charu and also moved an application for conducting TIP proceedings of accused but the accused refused to join the judicial TIP proceedings Ex A4 despite warning of adverse influence during trial.

5 After conclusion of the investigation, charge sheet was filed against the accused/appellant herein u/s 279/337/304A IPC, who duly appeared and contested the case against him on merits. Notice of accusation under section 251 Cr.P.C pertaining to Sections 279/337/304­A IPC was served upon the appellant on 12.08.2002 to which he had pleaded not guilty and claimed trial.

6. The prosecution in order to prove its case against the appellant/convict had examined total 7 witnesses.

7. PW­1 Ms. Charu Relhan is the complainant / eye witness of the case incident. Perusal of record, however, shows that she was only partly examined in chief on 26.08.2002 and thereafter could not be examined further by the prosecution in support of its case. During her part examination on 26.08.2002, PW­1 was also partly cross examined by ld. Addl. PP for State after obtaining permission from the court. As PW­1 was only partly examined in chief, her testimony could not be completed and as the accused / appellant did not get any opportunity to cross examine PW­1, therefore, the part testimony of PW­1 can not be read at all either in favour of the prosecution or against the accused. For that reason, the documents or any case property, if proved, by PW­1 during her part testimony shall also be deemed not to have been proved in this case.

8. PW­2 SI ( Retd.) Kedar Nath deposed to the effect that on 17.03.99 at the request of IO/PW­7 he had carried out the mechanical inspection of the above said vehicles involved in accident in this case. The mechanical inspection of the offended vehicle i.e the Maruti car has been proved as Ex PW2/A, whereas the mechanical inspection of the offending vehicle i.e the truck has been proved as Ex PW2/B. PW­2 was not cross examined by ld defence counsel despite opportunity and his cross examination was Nil, opportunity given.

9. PW­3 Ms. Renu Jaswal is the most material witness for the prosecution being an alleged eye witness of the case accident and also CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.5/25 one of the occupant of the offended vehicle. Her testimony would be discussed in detail at the appropriate stage of the judgment.

10. PW­4 H.C. Dhani Ram, is a formal witness being Duty Officer and has deposed to the effect that on 16.03.1999 at about 12.15am, he received a rukka brought by Ct Anil Kumar sent by SI Dalip Kumar upon which the case FIR was registered and investigation was entrusted to SI Dalip Kumar. He further deposed that copy of FIR and original rukka were handed over to Ct Anil Kumar. The case FIR has been proved as Ex. PW4/B and the endorsement on the rukka as made by PW­4 has been proved as Ex PW4/A.

11. PW­5 Dr. B. Swoin, Chief Medical Officer, SJ hospital, New Delhi deposed that on 17.03.1999 he conducted postmortem examination on the body of deceased Ms. Harsimrath and the postmortem report has been proved as Ex PW5/A. He deposed that in his opinion the cause of death in the present case was head injury associated with other body injuries due to blunt force impact, the injuries were ante mortem in nature and could be caused by road traffic accident. He also deposed that the time since death was about 1600 hours. PW­5 was also not cross examined by accused despite opportunity and his cross examination was Nil, opportunity given.

12. PW­6 Ct. Anil Kumar deposed that on 16.03.1999 on receipt of call regarding accident, he along with PW­7 reached at Africa Avenue Chowk at about 10.30 p.m where they found one truck no. DL­1G CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.6/25 A­5519 and one Maruti car no. DL­6C D­8547 in an accidental condition. He deposed that they came to know that the injured had already been removed to SJ hospital, he was left behind and PW7 went to SJ hospital. He deposed that at about 11.30 p.m. PW­7 came back at the spot, handed over a rukka to him, he with rukka reached PS, got registered the case FIR, returned back to the spot with copy of FIR and original rukka and handed over the same to IO. He deposed that site plan was prepared by the IO in his presence and both the vehicles were seized vide seizure memo Ex PW6/A and Ex PW6/B. He deposed that they came back at the spot where both the vehicles were lifted by crane at about 04.00 a.m and the accused was produced by his employer at the Police Station. The personal search of the accused has been proved as Ex PW6/C. He deposed that on 17.03.1999, he along with PW­7 went to SJ hospital where the dead body of the deceased was identified by her relatives and IO got conducted the postmortem of the body of the deceased.

In cross examination by ld defence counsel, PW­6 inter alia deposed that he was speaking on the basis of the contents of the charge sheet and a call at 100 number was initially made in this case.

13. PW­7 Insp. Dalip Kumar is the IO of the case and deposed that on 16.03.1999 he received DD no. 29A regarding accident at Africa Avenue Chowk, Ring Road, New Delhi and he along with PW6 reached the spot i.e. at the road leading towards Safdarjung at about 10.45 p.m where CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.7/25 they found the above said vehicles in accidental condition. He deposed that at the spot they came to know that the injured had been shifted to SJ hospital, he left PW6 at the spot and other staff was also called at the accident spot to lookafter the traffic. PW­7 went to SJ hospital and collected the MLC of deceased where it was stated that the injured was brought dead. PW­7 deposed that he found one eye witness by the name of Ms. Charu Relhan, he recorded her statement and he with her came back to the spot. He further deposed that he made endorsement Ex PW7/A on the complaint, handed it over to PW­6 for registration of the FIR, PW­6 got registered the FIR, came back at the spot and handed over the copy of FIR and original rukka to him. He further deposed that he prepared the site plan PW7/B at the instance of the complainant. He deposed that on the next day the father of the deceased came to the PS and they came to know that the name of the deceased was Ms. Harsimrat @ Simran and he got identified the dead body of the deceased through his father and mother and also recorded their statements Ex PW7/C and Ex PW7/D. PW­7 got conducted the postmortem on the body of the deceased and it was handed over vide receipt Ex PW7/E to its relatives. PW7 also issued notice Ex PW7/F u/s 133 M.V. Act to Mr. Jagjeet Singh i.e the owner of the offending vehicle and deposed that Mr. Jagjeet Singh replied ( Ex PW7/G ) that the accused was driving the vehicle on the date of the accident. He deposed that Mr. Jagjeet Singh also produced the accused at the PS and the CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.8/25 arrest memo of the accused has been proved as Ex PW7/H. He deposed that subsequently he moved application for TIP of the accused but the accused refused to join the TIP proceedings Ex A­4. He further deposed that he recorded the statement of Ms. Renu Jaswal ( PW 3 ) who also witnessed the accident.

In cross examination by ld. Defence counsel, PW­7 inter alia deposed that when they initially reached the spot then there was no eye witness to the accident at the spot.

14 The accused/appellant was examined u/s 313 CrPC on 22.03.2013 in which he denied all the material incriminating circumstances appearing in the prosecution evidence on record against him. He stated that the accident had occurred with the offending vehicle in question, the concerned had fled away, the company officials had falsely produced him before the police and thereafter he was falsely implicated in this case. He also stated that he was not driving the offending vehicle at the time of accident in question and at that time he was present with his brother at Shahdara, Delhi. In the said statement, the accused / convict / appellant preferred to lead defence evidence, however, as per the record, he did not lead any defence evidence and ultimately the defence evidence was closed vide order dated 30.05.2013 of the learned trial court.

15. The ld trial court after hearing the arguments of learned APP for State as well as the learned defence counsel vide the impugned CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.9/25 judgment, convicted the accused/appellant holding that one should not overload a heavy vehicle, the offending truck was lover loaded at that time, the very fact that offending truck was over loaded ipso facto indicated the negligence of the accused, he should have foreseen the possibility of imbalance of the said truck while turning which he did not do and that the accused was driving the offending truck at a very high speed. The ld. Trial court also held that PW3 had deposed that their offended car was parked before the Zebra crossing at the spot and the accused was rash in driving the offending vehicle as he should have slowed down the speed of the offending truck so that the pedestrian crossing the road via zebra crossing could have been safeguarded. The ld trial court has also held that PW3 was clear in her deposition by explaining the meaning of rashness that an over loaded truck if tried to overtake on a red light then it would amount to rashness. The ld trial court held that there was nothing on record which could have created doubt on the testimony of PW3 and thus believed her testimony. The ld trial court also did not believe the plea of alibi put forward by the accused. The ld trial court further relied on the reply ExPW7/G as given by Mr. Jagjeet Singh i.e owner of the offending vehicle on the notice Ex PW7/F u/s 133 M.V. Act and treated the same as an extra judicial confession of the accused. The ld trial court in the impugned judgment also referred to the mechanical inspection report Ex PW2/B and the refusal of the accused to join the judicial TIP proceedings Ex A­4.

Thus, the appellant herein was convicted by the ld trial court for the offences punishable u/s 279//337 /304­A IPC.

16. The ld defence counsel appearing on behalf of the appellant argued that the learned trial court failed to consider the material on record and passed the impugned judgment mechanically. He contended that as per the testimony of PW3 the police interrogated her at the spot but did not record her statement, from the spot she accompanied the police to SJ hospital, she remained in the hospital for one hour, she was interrogated by the police in the hospital but her statement was not recorded by the police and only in the night of 16.03.1999 the police recorded her statement late in the night at her home. He further referred to the testimony of PW7/IO wherein he deposed that at SJ hospital he found one eye witness by name of Ms. Charu Rehlan (PW1), he recorded her statement and along with the complainant ( PW1) came back to the spot. He thus contended that it has been an admitted fact in the testimony of PW7/IO that he found only one eye witness i.e. PW1 at the hospital and therefore it is evident that PW3 is a planted witness by the IO and is not an eye witness to the case incident. He contended that if PW3 was present at the spot, was in the hospital for one hour and written proceedings were done before her, then why her statement was not recorded at the first possible instance. He also argued that despite being the alleged occupant of the offended vehicle and her alleged presence at the hospital, she was also not medically examined at SJ CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.11/25 hospital, which would show that she was only a planted witness by the IO. He further argued that as per the testimony of PW3 she was sitting on the rear seat of the offended car behind the driver side and thus had no occasion to see that the offending vehicle was being driven by the accused or was being driven in a rash or negligent manner. He further argued that no judicial TIP proceedings of accused was got conducted through PW3. He also argued that PW­3 specifically admitted in her cross examination that she could not tell the speed of the truck and has volunteered that as soon as she turned back their car was hit by the truck and it was a matter of friction of second only. He thus contended that even by the testimony of PW3, the prosecution has failed to prove beyond reasonable doubt that the offending vehicle was being driven in a rash and negligent manner or at a high speed. He contended that it is the case of the prosecution even in the statement dated 16.03.1999 ( upon which the case FIR was registered ) of the complainant /PW1 that the offending truck was over loaded with goods and PW3 has also deposed that 9 tonnes of onions loaded in the offending truck would make it a case of rash driving. He argued that no police witness including the IO has deposed to the effect that the offending vehicle / truck was over loaded or was even loaded with onions and referred to the testimony of PW7/IO in that regard. He also referred to the seizure memo Ex PW6/B of the offending truck wherein no mention of any over loading of the vehicle has been mentioned. He, therefore, contended CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.12/25 that the case of the prosecution regarding alleged over loading of the offending vehicle is an after thought on behalf of the prosecution only to impute rashness or negligence upon the accused. He also contended that Mr. Jagjit Singh i.e the owner of the offending vehicle was not examined by the prosecution in support of its case, therefore, the alleged reply of Mr. Jagjit Singh to the notice u/s 133 M.V. Act Ex PW7/F could not be deemed to have been proved by the prosecution and mere marking of exhibit on a document would not be sufficient to prove the said document. He contended that neither PW3 nor PW7 identified the offending truck. He argued that the prosecution has failed to prove its case against the accused beyond reasonable doubt and the benefit should go to the accused/appellant. He thus argued that the impugned judgment and the order on sentence be set aside.

17. Ld. Addl. PP for State has vehemently opposed the aforesaid submissions of the ld. Counsel for the accused/appellant and contended that the impugned judgment and the order on sentence were based on sound reasoning after proper appreciation of facts. He further argued that PW3 is a trustworthy and natural witness and has been correctly relied upon by the ld trial court. He argued that in his statement u/s 313 Cr.P.C, the appellant has admitted that the accident had occurred with the offending vehicle, whereas , the presence of the accused on the spot and his driving of the offending vehicle at the time of the case accident have been proved by the reliable testimony of PW3. He contended that CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.13/25 PW3 has specifically deposed that the accused was driving the offending truck in a rash and negligent manner and has caused the accident resulting into the death of the deceased Harsimrath @ Simran and simple hurt to PW1 Ms. Charu Relhan. He further argued that as per the testimony of PW3, the offending vehicle was over loaded with about nine tonnes of onions and while the accused attempted to overtake the offended vehicle from its left then due to over loading fell on the offended vehicle leading to the case accident. He argued that the witnesses produced and examined by the prosecution especially PW3 have proved the case of prosecution beyond reasonable doubt against the appellant/ accused and argued that there is no illegality in the impugned judgment.

18. I have heard the arguments on appeal and perused the record including trial court record.

19. To secure the conviction in a vehicular accident case, the prosecution has to prove all the following ingredients beyond reasonable doubt:­ (A) That an accident was caused with a particular vehicle. (B) That accused was driving that particular vehicle which caused the accident.

(C) That accident had taken place due to rash or negligent driving of the accused facing trial in the court.

(D) That injury suffered by an injured or death of deceased was the CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.14/25 direct result and consequence of that accident.

20. Keeping in view the facts and circumstances of the case, the ingredients no A, B and D as mentioned in paragraph no. 19 of this judgment are interconnected and are being taken up together for discussion.

21. PW3 Ms. Renu Jaswal has deposed to the effect that on 16.03.1999 at around 10.30 p.m she along with her friend PW1 and deceased (Harsimrath) were coming from Anand Niketan and were going to C­32, South Extension in Maruti car no DL­6C D­8754 ( offended vehicle ), PW­1 was driving the car, the deceased was sitting next to PW1 and she was sitting on the back of PW1. She further deposed that when they reached at Bhikaji Cama Place, their car stopped at the traffic signal being red light, they were waiting for green signal, she saw that one truck was coming from the back of their car at a very high speed, in a rash manner, the offending truck tried to take left turn while over taking, it was over loaded and in the process it fell on their car. She deposed that the number of the offending truck was DL­1G A­5519 ( offending vehicle ). The accused / appellant in his statement u/s 313 Cr.P.C dated 22.03.2013 has also inter alia admitted that the accident had occurred with the offending truck in question. PW6 Ct. Anil Kumar also deposed that both the vehicles were seized from the spot and the seizure memo of the offending vehicle i.e above said truck has been proved as Ex PW6/B whereas the seizure memo of the offended vehicle CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.15/25 i.e the above said Maruti car has been proved as Ex PW6/A. PW7/IO has also deposed that he seized both the vehicles vide Ex PW6/A and Ex PW6/B. PW2 has proved the mechanical inspection reports of both the vehicles as Ex PW2/A ( of the offended vehicle )and Ex PW2/B ( of the offending vehicle ). From the above said testimonies, the prosecution has proved beyond reasonable doubt that the case accident was caused by the above said offending vehicle against the above said offended vehicle. The prosecution has thus been able to prove beyond reasonable doubt the ingredient no. A as mentioned in paragraph no. 19 of the judgment.

22. As far as ingredient no. B is concerned, the prosecution has to prove beyond reasonable doubt that the accused/appellant was driving that particular vehicle which caused the accident i.e the offending vehicle. Although, the accused denied in his statement u/s 313 Cr.PC that he was driving the offending vehicle at the relevant time, however, PW3 in her examination in chief correctly identified the accused / appellant as the person who was driving the offending vehicle at that time. She further deposed in her cross examination that she saw the accused at the spot when she turned back. Perusal of judicial TIP proceedings dated 09.08.1999 qua the accused i.e. Ex A­4 would show that the accused refused to participate in judicial TIP proceedings despite warning and stated before the learned Metropolitan Magistrate conducting the said proceedings that he did not want to participate in CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.16/25 TIP proceedings as he had been already seen by the witnesses at the PS and on the spot also. It is thus admission on the behalf of the accused that he was present at the spot at the relevant time. PW7/IO has nowhere deposed in his testimony that he took the accused to the spot. From the above said testimonies and admission of the accused, the prosecution has been able to prove beyond reasonable doubt that the appellant/accused was driving the offending vehicle at the relevant time and caused the case accident. The prosecution thus has been able to prove beyond reasonable doubt the ingredient no. B as mentioned in paragraph no. 19 of this judgment.

23.PW3 further deposed that after the accident she and PW1 came out of the car whereas the deceased was inside the car as the offending truck had fallen on the left side of their car. She further deposed in her examination in chief that one crane came, after some time it took out the deceased, they went to SJ hospital, where Harsimrath was declared dead and PW1 also received injuries on her nose. In this regard the MLC's of deceased and PW1 have been proved as Ex A­2 and Ex A­3 respectively. The MLC Ex A­2 is dated 16.03.1999 whereas MLC ExA­3 is dated 01.04.1999. Ex A­2 would show that the patient ( deceased ) was brought dead mentioning history of road traffic accident, whereas, Ex A­3 mentions the nature of injuries as simple blunt on the person of PW1 with alleged history of road traffic accident on 16.03.1999. It is pertinent to note that in proceedings u/s 294 Cr.P.C as conducted on CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.17/25 17.01.2013, the accused interalia admitted Ex A­2 and Ex A­3. PW5 Dr. B. Swoin, CMO, SJ hospital proved the postmortem report no. 506/99 dated 17.03.1999 qua the deceased Harsimrath D/o Sh. Gurcharan Singh as Ex PW5/A mentioning that the deceased was declared brought dead at SJ hospital on 16.03.1999 with alleged history of RTA ( road traffic accident ) at 11.30 p.m and opined that the injuries were ante mortem in nature and the cause of death was head injury with other injuries to body organs consequent upon blunt force impact. PW5 was not cross examined by the accused despite opportunity and his cross examination by the accused was nil, opportunity given. PW6 and PW7 have also deposed to the effect that on 16.03.1999 on receipt of DD no. 29A PS R.K.Puram they reached at the spot where they found the above said vehicles in accidental condition and came to know that the injured had already been shifted to SJ hospital. From the said testimonies, the prosecution has been able to prove beyond reasonable doubt that the death of the deceased Harsimrath and simple injuries to PW1 Ms. Charu Relhan was the direct result and consequences of the case accident. The prosecution has thus been able to prove beyond reasonable doubt the ingredient no. D as mentioned in paragraph no. 19 of the judgment.

24. The prosecution in this case was mainly to prove the ingredient no. C as mentioned in paragraph no. 19 of the judgment to the effect that the case accident had taken place due to rash or negligent driving of the accused facing trial in the court. In that regard, the testimony of the CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.18/25 alleged sole eye witness i e PW3 Ms Renu Jaswal is very material. It would be pertinent to note and also as mentioned above, the part examination in chief of PW1 as recorded on 26.08.2002 can not be read in evidence as the accused did not get any opportunity to cross examine the said witness. The examination in chief of PW3 has already been noted above during the earlier part of this judgment and the relevant extracts of the examination in chief and the cross examination of the said witness would be noted at the relevant stages.

PW­3 has deposed in his examination in chief that when she turned back she saw that the offending truck was coming from the back of their car at a very high speed, being driven in a rash manner and the accused was driving the said truck in a rash and negligent manner. In cross examination, PW3, however, deposed that she could not tell the speed of the truck and volunteered that as soon as she turned back their car was hit by the truck and it was a matter of friction of second only.

It is an admitted fact in the testimony of PW3 that she was sitting on the rear driver side seat of the offended Maruti car. It thus seems that she had no occasion to look backward at the offending truck, which as per the case of the prosecution, was coming from behind the stationary offended vehicle. Further, as discussed above, PW3 herself admitted in the cross examination that she could not tell the speed of the truck. In these circumstances, it seems that PW3 was not in a position to depose in her examination in chief that the offending vehicle CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.19/25 was coming at a very high speed being driven in a rash manner. It further seems that PW3 was thus not a capable witness to depose to the effect that the case accident had taken place due to rash or negligent driving of the accused facing trial in the court and her testimony to that effect cannot be relied upon. No other prosecution witness has deposed to the effect that the accused was driving the offending vehicle at a very high speed. In these circumstances, the prosecution has failed to prove beyond reasonable doubt that the accused was driving the offending truck at a very high speed at the relevant time. The testimony of PW3 in this regard is thus not reliable. The Ld. Trial court thus committed an illegality while relying upon the testimony of PW3 in that regard and coming to the conclusion that the accused was driving the offending truck at a very high speed.

25. The Ld. Trial court in the impugned judgment held that one should not overload a heavy vehicle, the offending truck was overloaded at that time, the very fact that offending truck was overloaded ipso facto indicated the negligence of the accused and he should have foreseen the possibility of imbalance of the said truck while turning which he did not do. PW3 in her examination in chief has also deposed that the offending truck was overloaded and in that process it fell on their car. In her cross examination, PW3 has deposed that the offending truck was overloaded and has volunteered that it was loaded with nine tons of onions which will amount to rash driving. In that regard, the statement of CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.20/25 complainant dated 16.03.1999 upon which the case FIR was registered would also show that the complainant mentioned that the offending truck was overloaded with goods. Perusal of record would, however, show that no police witness including the IO /PW7 has deposed to the effect that the offending vehicle / truck was overloaded or was even loaded with any goods or onions. In fact, the seizure memo Ex PW6/B of the offending truck also does not mention of any overloading of the vehicle or even loading of the vehicle with any goods or onions. No superdarinama of release of any goods which were allegedly loaded in the offending vehicle is also on record. In the said circumstances, the testimony of PW3 to the effect that the offending vehicle was overloaded with nine tons of onions and fell on the offended vehicle as a result thereof cannot be relied upon and the prosecution has failed to prove the said fact. The Ld. Trial court thus wrongly concluded the facts that the offending truck was overloaded at the relevant time, the very fact that offending truck was overloaded ipso facto indicated the negligence of the accused and he should have foreseen the possibility of imbalance of the said truck while turning which he did not do. There is thus merits in the submissions of the Ld. Counsel for appellant that the case of the prosecution regarding alleged overloading of the offending vehicle is an after thought on behalf of the prosecution only to impute rashness or negligence upon the accused.

26. PW7/IO deposed that at the spot they came to know that injured CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.21/25 was shifted to Safdarjung hospital, he went to the hospital and collected the MLC of Simran wherein it was stated that the injured was brought dead. He further deposed that he found one witness by name of Charu Rehlan (PW1), he recorded her statement and he along with her came back to the spot. Only in the last lines of his examination in chief, PW7 / IO simply mentioned that he also recorded the statement of PW3 who also witnessed the accident. In the light of said testimony of the IO, it would be relevant to note the testimony of PW3. PW3 has deposed that the police interrogated her at the spot but did not record her statement, from the spot she accompanied the police to Safdarjung hospital, she remained in the hospital for one hour, she was interrogated by the police in the hospital but her statement was not recorded by the police and only in the night of 16.03.1999 the police recorded her statement late in the night at her home. The said testimony of PW3 is totally in contradiction to testimony of PW7 / IO because PW7 has deposed to the effect that at the said hospital he found only one eye witness i.e. PW1, whereas, PW3 has deposed to the effect that she was not only interrogated by the police at the spot but was also interrogated by the police at the hospital and she remained at the hospital for one hour but her statement was not recorded by the police. It thus raises a big question mark over the reliability of PW3 and also if she was an eye witness to the case accident. In case PW3 was an eye witness, was present at the spot, was in the hospital for one hour and even written CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.22/25 proceedings were done before her by the police, then why her statement was not recorded by the police at the first possible instance. It is also not the case of the prosecution that PW3 received any injuries in the case accident. It is also evident from the record that despite being the alleged occupant of the offended vehicle and her alleged presence at the hospital, she was not medically examined at Safdarjung hospital. All the said circumstances, raise a strong doubt over the reliability of testimony of PW3 and further raise a doubt over her being an eye witness to the case accident. The Ld. Trial court thus committed an illegality by holding in the impugned judgment that there was nothing on record which could have created doubt on the testimony of PW3 and therefore believed her testimony.

27. In view of the above said discussion, it is held that the Ld. Trial court committed an illegality while relying upon the testimony of PW3. The prosecution has thus failed to prove the ingredient no. C as mentioned in paragraph no. 19 of the judgment to the effect that the accident had taken place due to rash or negligent driving of accused/appellant. The turning turtle of the offending vehicle over the offended vehicle could be for various reasons which need not necessarily point out towards the rashness or negligence driving of the accused. In this regard, it is to be noted that, as discussed above, the prosecution has failed to prove beyond reasonable doubt that the accused was driving the offending vehicle at a high speed or if the offending vehicle CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.23/25 was overloaded with goods or onions at the relevant time. The accused/appellant is thus entitled to benefit of doubt in this case.

28. The Ld. Trial court further relied upon the reply Ex PW7/G as given by Mr Jagjeet Singh i.e. owner of the offending vehicle on the notice Ex PW7/F u/s 133 MV Act and treated the same as an extra judicial confession of the accused. In this context, it would be relevant to note that Mr Jagjeet Singh i.e. owner of the offending vehicle has not been examined by the prosecution in support of its case, therefore, the alleged reply of Mr Jagjeet Singh to the notice u/s 133 MV Act (Ex PW7/F) could not be deemed to have been proved on record by the prosecution. It is also a settled law that mere marking of 'Exhibit' on a document would be sufficient to prove the said document. The said reply to the notice u/s 133 MV Act could only have been proved by the prosecution by examining Mr Jagjeet Singh i.e. the person who allegedly gave that reply upon which the accused also would have got an opportunity to cross examine him, however, in the absence of the examination of Mr Jagjeet Singh, the said reply would not become admissible in evidence. In these circumstances, the Ld. Trial court committed an illegality by admitting the said reply in evidence and also by treating the same as an extra judicial confession of accused.

29. In view of the foregoing discussion, it is held that the prosecution has failed to prove that the case accident had taken place due to rash or negligent driving of the accused/appellant facing trial in the court and CA No. 53/1/14 FIR No. 221/1999 PS: R K Puram Devender Vs The State Page No.24/25 he is entitled to consequent acquittal in this case u/s 279/337/304A IPC.

30. It is accordingly held that the impugned judgment dated 17.08.2013 passed by the Ld. Trial court suffers from illegality, is not sustainable in the eyes of law and is accordingly set aside. The consequent order on sentence dated 31.08.2013 is also therefore set aside. The accused / appellant is therefore acquitted for the offences punishable u/s 279/337/304A IPC.

31. The present appeal, as filed by the appellant, is thus allowed.

32. The present appeal is disposed of accordingly.

33. TCR be sent back with copy of the judgment.

34. Appeal file be consigned to record room after completion of all other necessary formalities.

Announced in the open 
Court on 05.05.2016                                    ( Amit Bansal ) 
                                                Addl. Sessions Judge ­04, 
                                     New Delhi District, Patiala House Courts, 
                                                         New Delhi
                                                        05.05.2016




CA No. 53/1/14    FIR No. 221/1999   PS: R K Puram  Devender Vs  The State    Page No.25/25