Delhi District Court
State vs . Vipul on 21 April, 2011
IN THE COURT OF SH. M. P. SINGH: METROPOLITAN
MAGISTRATE-02/WEST : DELHI
State Vs. Vipul
FIR No. : 828/96
U/Sec : 279/304-A IPC
PS : Hari Nagar
Unique Case ID Number 02401R0053721996
JUDGMENT
Serial No. of the case 378/II/96
Date of commission of offence 13.10.1996
Date of institution of the case 24.12.1996
Name of the complainant Tarsem Singh s/o Gurbachan Singh r/o
25/5, Ashok Nagar, Delhi
Name of accused, parentage & Vipul s/o Naresh Kumar r/o 45/12,
address Ashok Nagar, Delhi.
Offence complained of or proved Sections 279/304-A IPC Plea of the accused Pleaded not guilty Date of arguments '01.03.2011 Final order Convicted Date of Judgment '21.04.2011
1. The present case was registered on the complaint of Sh. Tarsem Singh. On 13.10.1996 the complainant was standing in the gali in front of his house 25/5, Ashok Nagar, Delhi. Sh. Gurcharan Singh, the complainant's father, was weaving a cot in the gali. At about 10:30 am, a Maruti car bearing no. DL5CA7883, allegedly being driven by the accused rashly and negligently, came inside the gali at a very fast speed and struck against a TVS moped, a rickshaw and then it struck against Sh. Gurbachan Singh, who came under the front wheels of the offending car. It is alleged that the offending car dragged the victim Sh. Gurbachan Singh for a considerable distance before stopping. The victim was thereafter taken to the DDU Hospital. Police arrived at the spot. From the spot of the accident, the rickshaw, the TVS moped and the offending vehicle were seized by the police and taken in its possession. The accused was arrested. The vehicles were mechanically inspected. The victim was declared brought dead in the hospital. Post- mortem upon the dead body of the deceased was conducted. On conclusion of the investigation, the chargesheet was filed on 24.12.1996.
2. Cognizance of the offence was taken. Accused was summoned. Copies were supplied to him. And subsequent to compliance with the provision of Section 207 of CrPC, notice for the offences punishable under Sections 279-304-A IPC was served upon the accused on 19.08.1997 to which he pleaded not guilty and claimed trial.
3. After the framing of notice, the matter was posted for prosecution evidence. During the course of prosecution evidence, the prosecution got examined ten witnesses. No prosecution witness had appeared thereafter and prosecution evidence was closed by court order dated 05.02.2011. Subsequent thereto, the statement of the accused was recorded on 21.02.2011 in the manner prescribed under Section 313 (1) (b) CrPC wherein the accused stated that he was innocent and that he had been falsely implicated in the present case. The accused did not wish to lead any defence evidence.
4. The ten prosecution witnesses that were examined during the course of the trial are as follows:
I. PW1 Sh. Atma Singh, relative of the deceased. He had identified the dead body of the deceased vide identification memo Ex. PW1/A. II. PW2 Tarsem Singh, the deceased's son, who was an eye witness to the accident.
III.PW3 Ram Kishan, another eye witness to the accident. IV.PW4 D. S. Chanay, the superdar of the offending vehicle DL5CA7883.
V. PW5 Const. Ram Kishan, who was on investigation of this case along with the investigating officer. VI.PW6 HC Raza Ali, the duty officer, who had registered the FIR Ex. PW6/A in the instant case.
VII.PW7 SI Kedar Nath, the mechanical inspector. VIII.PW8 J. C. Vashishth, record clerk, DDU Hospital. He exhibited on record the MLC of the deceased Gurbachan as Ex. PW8/A. IX.PW9 HC Ashwani Kumar, the investigating officer of this case.
X. PW10 Dr. Komal Singh, the doctor who who had conducted post-mortem upon the dead body of the deceased. The post mortem report is Ex. PW10/A.
6. I have heard the rival submissions at Bar and have gone through the records of this case.
7. In the case at hand, the very first question that is required to be taken up is the admissibility and the relevancy of the testimonies of PW2 Tarsem Singh and PW4 D. S. Chanay. And secondly, if at all they are admissible and relevant, to what extent they can be read into evidence.
This question assumes importance because both the witnesses had fully supported the prosecution case when first called for recording of their testimony. However, later on when they were recalled for cross- examination under section 311 CrPC, they turned hostile and backtracked from their previous testimonies. PW2 Tarsem Singh, the son of the deceased, was the eye witness of the accident. It is important to mention here that the present case was registered on his complaint which is Ex. PW2/A. The other witness namely PW4 D. S. Chanay was the superdar of the offending vehicle DL5CA7883, which vehicle was taken by him on superdari vide superdaginama Ex. PW3/A.
8. First of all, I propose to take up the case of the eye witness PW2 Tarsem Singh. PW2 Sh. Tarsem Singh was examined and cross- examined on 27.09.1997. In his examination, this witness stated that the accident was caused by the accused Vipul on account of his rash and negligent driving. A portion of his testimony as recorded in the examination-in-chief is as follows:
"On 13.10.1996 at about 10:30 am, I was out of my house, my father Gurcharan was taking rest on a cot before our house. One car no. DL5CA 7883 came in gali. The said car struck in a rickshaw in front and then entered in our gali and then struck in a moped owned by Ram Kishan and then struck in the cot of my father . My father was thrown in air. .... high. My father was dragged up to the next house. We were outside the house and saw the accident. The speed of the car was very high. The accused present today was driving the car."
9. This witness was cross-examined by the defence on 27.09.1997 itself. However, in his cross-examination by the defence, this witness stood his ground and continued to remain supportive of the prosecution case. No amount of cross-examination of this witness on 27.09.1997 could shake his credit. This witness was later on recalled for cross- examination by the defence under section 311 CrPC. However, in his cross-examination under section 311 CrPC by the Ld. Defence Counsel, this witness took an absolute about turn and stated that he had not seen the accident as he was inside his house. The relevant portion of his testimony as recorded in his cross-examination conducted on 01.07.2000 under section 311 CrPC is as follows:
"It is correct that in my statement made to the police Ex. PW2/A, I did not state that accused Vipul present in court today, was driving the car at the relevant time. I has stated this fact in my examination in chief as I was told by the police. At the time of the accident I was inside my house. There were 3-4 persons in the said car. I identify the accused present in court today who was also present on the spot. It can be possible that my father was pillion rider of moped which struck against the rickshaw and sustained injuries by falling on the road."
10. When confronted with the flip-flops in his testimony by the Ld. APP for the State; this is precisely what PW2 Tarsem Singh offered as an explanation for the crystal clear inconsistencies between the two testimonies: "I became nervous [on 27.09.1997]." He also states that he had taken the name of accused Vipul on 27.09.1997 as he was told to do so by the police. It is important to mention here that this witness in his testimony recorded on 27.09.1997 had vehemently denied the suggestions of the defence that his father sustained injuries on account of fall from moped which struck against the cycle rickshaw. However, in his cross-examination recorded under section 311 CrPC he has very-very conveniently accepted it as a possible cause for the demise of his father. Therefore, here we have a witness who, in his testimony, supports the prosecution case to the hilt; however, in his cross- examination under section 311 CrPC recorded after nearly three years, he backtracks from his previous statement and states that he never saw the accident. To say that PW2 Tarsem Singh had deposed in his examination in chief and also withstood the test of a rigorous cross- examination on 27.09.1997 merely on the basis of what was told to him by the police cannot simply be accepted. Moreover, it would be entirely irrational to accept his explanation that on account of nervousness he gave his deposition on 27.09.1997. This is a very-very simplistic explanation offered by the witness for the clear cut inconsistencies in his testimony. If at all he was nervous, why did he not inform the court on 27.09.1997. The order dated 27.09.1997 does not at all reflect that he had asked for any adjournment on account of his so-called nervousness. And, would a witness, who is nervous, be able to give his testimony running into eight pages and also withstand completely the tests of rigorous cross-examination of the defence counsel? Having violated the sanctity of oath by turning hostile in his cross-examination by the defence under section 311 CrPC, a very simplistic explanation is sought to be offered by PW2 Tarsem Singh to save his skin. It seems that a section of the public at large entertains the belief that all kinds of falsehoods prevail in the court. The present case is a stark example of such a misplaced belief. In my view, to a reasonable and prudent man, this explanation of PW2 Tarsem Singh would not at all be credible and convincing. The moot question that now arises is - Whether it is safe to place reliance upon such a witness; and if so, to what extent? This moot question assumes importance particularly in the light of the fact that he had turned hostile before this Court in his cross-examination by the defence recorded under section 311 CrPC. In this context, the judgment of the Apex Court reported as Jodhraj Singh vs. State of Rajasthan 2007 (6) SCALE 242 would be relevant. It was observed:
"It is trite that only because a witness, for one reason or the other, has, to some extent, resiled from his earlier statement by itself may not be sufficient to discard the prosecution case in its entirety. The courts even in such a situation are not powerless. Keeping in view the materials available on record, it is permissible for a court of law to rely upon a part of the testimony of the witness who has been declared hostile."
Further, the case of Khujji alias Surendra Tiwari vs. State of Madhya Pradesh AIR 1991 SC 1853 would also be relevant in this context. In this case, the examination-in-chief of a witness was recorded on November 16, 1976 when he identified all the assailants by name. His cross-examination commenced on 15th December, 1978. In his cross-examination he stated that the appellant Khujji and Gudda had their backs towards him and hence he could not see their faces while he could identify the remaining four persons. He stated that he had inferred that the other two persons were the appellant and Gudda. It was observed by the Apex Court:
"On the basis of this statement Mr. Lalit submitted that the evidence regarding the identity of the appellant is rendered highly doubtful and it would be hazardous to convict the appellant solely on the basis of identification by such a wavering witness. The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in-chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in cross-examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief."
11.Therefore, on the touchstone of the aforesaid judgments, I am satisfied that the act of resiling in the cross-examination before this Court from previous testimony is a clear attempt on the part of PW2 Tarsem Singh to wriggle out of what he had stated earlier on 27.09.1997. It is to be noted that he was recalled for cross-examination under section 311 CrPC in this case after nearly three years of his previous testimony. And during this period of three years, something must have transpired which prompted PW2 Tarsem Singh to change his stand. This court is not powerless to reject what he stated in his cross-examination under section 311 CrPC before this court recorded on 01.07.2000 and consider his previous statement (examination in chief and cross- examination recorded on 27.09.1997). Therefore, in my view, it is the testimony recorded on 27.09.1997 of PW2 Tarsem Singh that would be relevant for our present purpose.
12.On somewhat similar footing is the testimony of PW4 D. S. Chanay. He was the superdar of the offending vehicle. This witness was examined on 11.08.1998. In his examination on 11.08.1998 he stated that at the relevant time the vehicle was being driven by the accused Vipul. This witness was later on recalled for cross-examination under section 311 CrPC. He was cross-examined under section 311 CrPC after more than two years. In his cross-examination under section 311 CrPC recorded on 01.07.2000, he stated that the offending vehicle at the relevant time was being driven by one Rajender and not Vipul. On similar reasoning as aforesaid in the preceding paragraphs, I am not inclined to read into evidence his testimony recorded on 01.07.2000 under section 311 CrPC.
13.Having set the legal position thus as regards the extent of admissibility of the testimonies of PW2 Tarsem Singh and PW4 D. S. Chanay; we have now to consider the legal evidence to see whether the prosecution has proved the disputed facts.
14.The very first issue that is to be adjudicated is whether the accused was driving the offending vehicle on the date, time and place of the alleged incident or not. The accused is setting up the defence that was not at all driving the offending vehicle in question on the date, time and the place of the incident. And this is precisely what the accused has stated in his defence in his statement recorded under section 313 CrPC. The prosecution in order to establish this fact got examined two eye witnesses namely: PW2 Tarsem Singh, and PW3 Ram Kishan. Additionally, the prosecution is also placing reliance upon the testimony of the superdar PW4 D. S. Chanay.
15.At the very outset, it must be mentioned that the testimony of PW3 Ramkishan is contradictory. PW3 Ram Kishan was examined in chief and cross-examined on 27.09.1997 itself. In his examination in chief, he stated that he had seen the accused Vipul drive the offending vehicle DL5CA7883. However, in his cross-examination he stated that he had not seen the accused drive the offending vehicle and that he later on saw the accused Vipul at the spot. In the case of Suraj Mal vs. The State (Delhi Administration) AIR 1979 SC 1408, it has been observed: "where a witness makes two inconsistent statements in their evidence at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses." Thus, the testimony of this witness is not safe to be relied upon in establishing the identity of the accused. The other eye witness namely PW2 Tarsem Singh has, in his evidence recorded on 27.09.1997, categorically deposed that the vehicle DL5CA7883 was being driven by none else than the accused Vipul. There is nothing in his entire cross-examination recorded on 27.09.109 to create any doubt on this score. This testimony of PW2 Tarsem Singh to the effect that the vehicle DL5CA7883 was being driven by the accused Vipul on the date, time and the place of the accident, is further buttressed by the testimony of PW4 D. S. Chanay (superdar). PW4 D. S. Chanay (superdar) in his testimony recorded on 11.08.1998 stated that at the relevant time, the accused Vipul was driving his vehicle DL5CA7883. What lends credence to the testimonies of these two witnesses as regards the identity of the accused Vipul, is the fact that the accused was arrested on the spot itself. The public witnesses namely PW2 Tarsem Singh & PW3 Ram Kishan have categorically testified that the accused was very much there at the spot of the accident. So much so, PW2 Tarsem Singh stated this fact in his cross-examination under section 311 CrPC recorded on 01.07.2000 that was essentially supportive of the defence. HC Ashwani Kumar, the investigating officer of this case was examined as PW9. From his testimony also it is clear that the accused Vipul was arrested from the spot of the accident itself. The fact that the vehicle DL5CA7883 was involved in the accident is also not at all in doubt. The prosecution witnesses PW2 Tarsem Singh PW3 Ram Kishan have deposed to the effect that the offending vehicle was none else but the Maruti bearing no. DL5CA7883. The mechanical inspector PW7 SI Kedar Nath in his mechanical inspection report found damages in the vehicle DL5CA7883. The photographs (Mark A to Mark E) placed on record also show that the veicle DL5CA7883 lying at the spot of the accident in an accidental condition. The vehicle was seized and taken into police possession at the spot of the accident. Therefore, there can be no doubt that the vehicle DL5CA7883 was involved in the accident and it was the accused Vipul who was driving the same at the time of the accident.
16.During the course of the arguments, Ld. Counsel for the accused placed heavy reliance upon a document under the letterhead of Compacta Advertising & Marketing dated 13.10.1996. This letter is under the signature of one Narinder Nayyar of the Compacta Advertising & Marketing. It is important to mention here that this document was never exhibited on record and never sought to be proved either by the prosecution or by the defence. The author of this letter was never examined. On the basis of the contents this letter, it was urged by the Ld. Defence counsel that the accused Vipul was completely innocent and that the vehicle was being driven by one Rajinder. Ld. APP for the State vehemently opposed this submission of the defence. There is a problem with this letter. The authenticity, truthfulness, veracity and the genuineness of this letter was never tested during the course of the trial. This letter was never put in evidence in the testimony of any of the witnesses. The author of this letter was never examined. In a trial, all documents are required to be proved as per the rules of documentary evidence contained in the Evidence Act and a document which is 'not proved', inasmuch the author thereof never stepped into the witness box, cannot at all be taken into consideration. As such this letter which is a 'not proved' document cannot at all be looked into by this court in the adjudication of the present matter.
17.Taking into consideration the testimonies of the witnesses PW2 Tarsem Singh, PW3 Ram Kishan, PW4 D. S. Chanay, PW7 SI Kedar Nath and PW9 HC Ashwani Kumar; I am convinced that in this case it is crystal clear beyond any shadow of doubt that the vehicle DL5CA7883 was involved in the accident. And further that it was none else but the accused Vipul who was driving the offending vehicle DL5CA7883.
18.After having decided that it was none else but the accused Vipul who was driving the offending vehicle DL5CA7883 on the date, time and the place of the accident; the next question that is to be looked into is whether the accused was driving the offending vehicle rashly and negligently and if so whether such rashness and negligence on the part of the accused resulted in the death of Gurbachan Singh.
19.The prosecution has to entirely stand upon its own legs in order to substantiate its allegations against the accused. No liability can be fastened upon the accused merely on the basis of the fact that the accident had occurred. The prosecution is required to prove that the accident that had occurred was on account of the rash and negligent driving of the accused. And it must also be remembered that the benefit of any reasonable doubt in this regard has to go to the accused. Before proceeding further, it would be appropriate to re-look the manner in which the accident was reportedly caused. In the present case, the accused before hitting the deceased, who was on his cot, had struck against a moped and a cycle rickshaw. As per the testimony of PW2 Tarsem Singh, the offending vehicle had dragged the deceased up till the next house. From these circumstances, it is very much apparent that the accused was driving the vehicle so rashly and negligently that he had no control over the vehicle. If the accused had any control over the vehicle, he would have stopped it, when it struck against the moped and the cycle rickshaw. The vehicle did not stop, rather it was not stopped, when it struck against the moped and the cycle rickshaw and it went on to hit the deceased who was on his cot so much so that he was dragged for a considerable distance. In his mechanical inspection report Ex. PW7/A, PW7 SI Kedar Nath found fresh damages. The photographs in the present case have been placed on record and are Mark A to Mark E. The photograph Mark A clearly reflects that the vehicle is in damaged condition on its front side. The rashness and the negligence on the part of the accused is writ large in the present case. There is another perspective from which the present matter can be looked into. The fact that the offending vehicle jumped off its normal path on the road and crossed over to the footpath on to the margins of the street so as to hit the moped, cycle rickshaw and the deceased speaks volumes about the rashness and the negligence on the part of the accused. It must also be pointed out that the accident was never due to any mechanical failure in the offending vehicle and it is none of the defence of the accused that there was mechanical failure in the vehicle.
20.Therefore, in the light of the foregoing discussion, what is crystal clear is that the prosecution has succeeded in proving the rashness and negligence on the part of the accused beyond reasonable doubt.
21.Now after having decided the fact that the accused was driving the offending vehicle in a rash and negligent manner, the next aspect that is to be determined is whether on account of such rashness and negligence, he has rendered himself liable for the offence punishable under Section 304-A IPC. In this connection, the testimony of PW10 Dr Komal Singh, the doctor who conducted the post-mortem upon the body of the deceased is material. He proved and exhibited the post- mortem report of the deceased as Ex. PW10/A. The post mortem examination on the dead body of the deceased was conducted by him on 14.10.1996 in the afternoon. PW10 in his examination in chief had deposed that post-mortem was conducted by him. As per the post- mortem examination report, there were multiple injuries on the bodies of the deceased. In the opinion of the doctor (PW10) the injuries were ante-mortem in nature and further that cause of death was coma caused by head injury on account of road side accident. This witness (PW10) was not cross-examined. PW1 Atma Singh in his testimony deposed that he had identified the dead body of the deceased. The identification memo of the dead body of the deceased has been exhibited and proved on record as Ex.PW1/A.
22.Accordingly, in these circumstances it can be very well stated that the accused had caused the death of the deceased by doing a rash and negligent act not amounting to culpable homicide covered within the definition of Section 304-A of IPC.
23.Accordingly, in view of the above discussion this court comes to the conclusion that on 13.10.1996 at about 10:30 PM the accused was driving the offending vehicle DL5CA7883 in a rash and negligent manner and as a consequence hit the victim namely Gurbachan Singh causing his death. The prosecution has succeeded in proving its case against the accused beyond reasonable doubt. Hence, this Court holds that the accused has committed offences punishable under Sections 279/304-A IPC, he is accordingly convicted for the said offences.
ANNOUNCED IN THE OPEN COURT M. P. SINGH ON 21stAPRIL, 2011 MM-2/WEST/DELHI