Delhi District Court
Surte Ram vs State (N.C.T. Of Delhi) on 17 August, 2021
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
PRINCIPAL DISTRICT & SESSIONS JUDGE,
SOUTH EAST DISTRICT, SAKET COURT, NEW DELHI.
C.A. 168/2020
SURTE RAM
S/o Sh. Paras Ram
R/o H. No.215, Tekhand Village,
Kumhar Mohalla, Okhla Indl. Area-I,
New Delhi.
......Appellant/Accused
Versus
STATE (N.C.T. OF DELHI)
......Respondent/Prosecution
Date of filing of Appeal : 26.10.2020
Date of Order : 17.08.2021
ORDER
An Appeal under Section 374 Criminal Procedure Code has been preferred against the judgment dated 24.09.2020 vide which the Appellant has been convicted and sentence dated 29.09.2020 under Section 279/338 IPC.
2 The facts in brief are that on 24.08.2013 at about 06:50 A.M while the complainant Rattan Singh was going for his duty on his motor cycle bearing No. DL3SBW-3433, he was hit by a DTC Bus bearing No.DL1PB 6358 which was being driven by the appellant on the wrong side of the road in a rash and negligent manner because of which he fell and suffered injuries. On his complaint, FIR was registered. The accused was apprehended and investigations carried out. The charge sheet was Surte Ram Vs. State page 1 of 10 filed in the court on 22.02.2014 under Section 279/338 IPC. 3 A Notice under Section 279/338 IPC was framed on 22.09.2014 to which he pleaded not guilty.
4 The prosecution in support of its case examined 12 witnesses in all.
5 PW1 Sh. Amit Kumar Bidhuri & PW2 Sh. Ranvijay Kumar were the two eye witnesses, who deposed about the incident. The photographs were proved as Ex.P1. 6 Injured Rattan Singh could not be examined as he expired during the trial.
7 PW3 Ct. Prem Bir Singh joined PW12 SI Bijender I.O who conducted the investigations, prepared the ruqqa Ex.PW12/A on the complaint of injured Sh. Rattan Singh and got the FIR registered. He seized the motor-cycle which the injured had brought to the police station vide memo Ex.PW3/D. He gave a Notice under Section 133 M.V. Act to the Depot Manager, DTC Kalkaji pursuant to which PW6 Heera Lal Shah produced the offending vehicle, duty slip, RC and other documents of the offending vehicle which was seized vide memo Ex.PW3/A, 3/B and 3/C. The Driving Licence of the accused was seized vide memo Ex.PW3/D. The accused was arrested vide memo Ex.PW3/F.
8. PW8 MVI Tasnimuddin Siddiqui were mechanically examined the vehicles and proved his Details Inspection Report of the Motor-cycle and bus as Ex.PW8/A and Ex.PW8/B. 9 PW10 SI Ganga Prakash moved an application for getting the TIP conducted of the accused, but he refused to participate in the proceedings. The TIP proceedings was admitted by the appellant which is Ex.D1.
Surte Ram Vs. State page 2 of 10
10 PW7 Dr. Chandan Kumar Pal proved the X-ray Report
dated 24.08.2013 of the injured prepared by Dr. A. Priya as Ex.PW7/A. According to him, no fracture or bony injury was found on the person of the injured.
11 PW9 Dr. Krishna Murari proved the MLC of the injured prepared by him as Ex.PW9/A. The nature of injuries was certified as simple by a blunt object.
12 The appellant admitted the medical opinion of Dr. Pradeep Yadav as Ex.A2 according to which the nature of injuries was grievous.
13 Statement of Accused was recorded under Section 313 Cr.P.C wherein he admitted driving the vehicle on the wrong side but explained that traffic for both the sides was running on one road as the other side of the road was closed. It is denied that the accident took place due to his negligence but asserted that he found the injured sitting on the road side and he himself had taken the injured to the AIIMS Trauma Centre as he was a Senior Citizen.
14 The appellant in his defence examined DW1 Sh. Kuldeep who deposed that on 24.08.2013 he was going from Kalkaji Temple to his home. He boarded the bus at Kalkaji and when it reached near Skoda Company, a man was found lying on the road in accidental condition. The driver/ appellant took the injured to the hospital.
15 The Ld. M.M vide his impugned judgment dated 24.09.2020 convicted the accused under Section 279/338 IPC and sentenced him to one month Simple Imprisonment and fine of Rs.1,000/- and in default of payment of fine to undergo Simple Imprisonment for five days under Section 279 IPC. The accused Surte Ram Vs. State page 3 of 10 was convicted for six month Simple Imprisonment and fine of Rs.1,000/- and in default of payment of fine to undergo Simple Imprisonment for one month under Section 338 IPC. The fine was directed to be paid to the complainant.
16. The main grounds on which the judgment has been assailed on behalf of the appellant are that the Ld. M.M has failed to appreciate the facts in accordance with law as there was no negligence proved on the part of the appellant. He was not driving the bus on the wrong side of the road, but because the other side of the road was closed, all the traffic was moving on one side of the road and the appellant was on his side. Moreover, the injured Rattan Singh had expired during the trial and could not be examined. Ld. Trial Court has failed to appreciate the testimony of DW1 Sh. Kuldeep who corroborated that there was no negligence on the part of the Appellant and no accident was caused by him, but appellant had merely taken the injured to AIIMS Hospital on humanitarian ground. Moreover, PW1 Sh. Amit Kumar had admitted that all the DTC buses look the same. Furthermore, he in his statement had stated that he had called the PCR from his mobile No.9810408833. Though, in his statement under Section 161 Cr.P.C he had claimed that call to the PCR was made by some public person. PW2 Sh. Ranvijay had claimed that he had called the PCR from his mobile No.7827323684.
17 There is inherent contradiction on various aspects in the testimony of PW1 and PW2. PW2 had deposed that he had remained on the spot for about 10-15 minutes, but I.O SI Birender Singh had deposed when he reached the spot, he did not find any person present. Moreover, the statement of PW2 was Surte Ram Vs. State page 4 of 10 recorded after 2-3 days. Moreover, PW2 in his statement under Section 161 had claimed that he was going from his office to his house on foot at about 7 A.M. However, in his testimony he deposed that he gets up from his office at about 06:45 A.M and took about ten minutes to reach the spot. The accident took place at 06:50 A.M clearly pointing out that PW2 was not present at the time of accident and his testimony cannot be relied upon. Moreover, PW2 had deposed that public persons shifted the injured to AIIMS Hospital in the DTC bus along with the bus driver, but in his cross-examination he stated that the police had shifted the injured to AIIMS Hospital. PW2 asserted that his statement was recorded in AIIMs but according to SI Birender, he met only the injured in the hospital. Moreover, his statement was recorded after 2 days.
18 It was argued that the prosecution has miserably failed to prove any negligence from the testimony of the two alleged eye witnesses. The Mechanical Inspection Report also does not corroborate the manner of accident as deposed by PW1 and PW2. The site plan also does not reflect negligence on the part of the appellant. The defence of the appellant has not been considered in the true perspective. The conviction, therefore, suffers from various infirmities and the conviction and sentence are liable to be set aside.
19 Ld. Chief Public Prosecutor had argued that the injured could not be examined as he died during the pendency of the trial for other reasons. The testimony of the two witnesses is consistent and fully corroborated by the evidence of the Doctor, Mechanical Inspection Report and the testimony of the I.O. There is no infirmity in the judgment and appeal is liable to be Surte Ram Vs. State page 5 of 10 dismissed.
20 I have heard the arguments and have perused the record. My observations are as under:
21 The prosecution in support of its case had examined two witnesses namely PW1 Sh. Amit Kumar Bidhuri and PW2 Sh. Ranvijay Kumar who have both deposed in their respective testimony that DTC bus was being driven by the appellant. It is also deposed by them that after the accident, the appellant along with the bus took the injured to AIIMS Trauma Centre. Furthermore, PW6 Sh. Heera Lal Shah Traffic Inspector of DTC had handed over the Duty Slip of the appellant which was seized by the I.O vide memo Ex.PW3/E showing that it was the appellant who was on duty and was driving the bus at the time of accident. The appellant has not challenged the testimony of any of the prosecution witness in their cross-examination on this aspect. Infact, he has admitted in his statement under Section 313 Cr.P.C that he was driving the vehicle at the time of accident. The identity of the appellant and the involvement of the DTC bus is established.
22 It is also admitted that the bus was being driven on the wrong side of the road which is also corroborated by the site plan Ex.PW12/B, the correctness of which has not been challenged by the appellant. The explanation has been given by the appellant that on the day of accident the road on the other side was closed and all the traffic for both the sides was going from one side. It is denied that he was negligent in any manner while driving on the wrong side. It is pertinent to refer to the site plan wherein there is no indication whatsoever that one side of the road was blocked. Rather, the site plan shows the traffic coming from both the sides Surte Ram Vs. State page 6 of 10 of the road. Moreover, no suggestion whatsoever to PW1 and PW2 and to the I.O or to any other prosecution witness has been given about the road being closed from one side. The appellant for the first time in his statement under Section 313 Cr.P.C had tried to explain his being on the wrong side of the road by claiming that road on one side was closed, but neither this defence has been put to any of the prosecution witness nor is it proved from the documents.
23 The testimony of PW1 and 2 categorically establishes that the appellant was driving his bus on the wrong side of the road for which there is not cogent explanation. In this context it would be pertinent to mention that the injured Rattan Singh had died during the trial making his statement to the I.O. on which the FIR was registered admissible under Section 32 of Indian Evidence Act. The very fact that the vehicle was being driven on the wrong side of the road clearly establishes the negligence of the appellant. The detailed arguments addressed on behalf of the appellant that the prosecution has failed to prove the negligence stands totally belied by the prosecution evidence as well as the documents.
24 The Ld. Counsel on behalf of the appellant has tried to point out various contradictions in the testimony of eye witness PW2. It is claimed that the witness had started from his office at 06:50 A.M and according to him it takes him ten minutes to reach the sot which implies that he was not at the scene of incident at 06:55 A.M. It may be noted that when a witness gives a time, it is not by a clock but by assumption. The testimony of PW2 largely establishes his presence. The appellant has tried to challenge the presence of PW-2 by claiming that if he was present why was he Surte Ram Vs. State page 7 of 10 not found by the I.O on the spot. This can be clearly understood from the testimony of PW2 who deposed that he remained on the spot for 10-15 minutes and accompanied the injured to AIIMS Trauma Centre where he was taken by the appellant in his bus and was accompanied by PCR. The appellant also has admitted that he took the injured to AIIMS Trauma Centre.
25. Another feeble attempt has been made by the appellant to exonerate himself by claiming that he had merely taken the injured to AIIMS Trauma Centre on humanitarian grounds as he found the injured lying on the road in injured condition. However, again this has not supported by the two eye witnesses who have been categorical in deposing that the motor-cycle of the injured was hit by the bus. Not only this, one may also refer to the Inspection Report of the motor-cycle Ex.PW8/A and of the bus Ex.PW8/B which show that the right side of the motor-cycle had been scratched and it is the front of the bus which had dents. Clearly the damage on the two vehicles also corroborates that it is the front of the bus which had hit the right side of the motor cycle.
26 The prosecution was successful in proving the negligence on the part of the appellant in driving the bus. In view of the above, it is held that the appellant has been rightly conviction under Section 279 Cr.P.C.
27 The other aspect to be considered is the injuries suffered by the complainant in the accident. Dr. PW9 Dr. Krishna Murari proved the MLC of the injured as PW9/A wherein the injuries suffered by Sh. Rattan Singh were described as abrasion on the right leg and laceration on right leg. The X-ray report Ex.PW7/A proved by Dr. A. Priya also reflected that there was no bony Surte Ram Vs. State page 8 of 10 injury suffered by the injured. However, there were other medical papers of the injured showing that thereafter he got admitted on 24.08.2013 in the hospital for his treatment and finally an opinion was taken from the Department of Forensic Medicine and Toxicology which is Ex.A2 and admitted by the appellant. The summary of the treatment was given in the said opinion, wherein it was mentioned that in the Discharge Summary dated 26.08.2013 of JPN Apex Trauma Centre, AIIMS Hospital was diagnosed as fracture of cervical spine as suggested by x-ray and cord edema C2 C3 to C4 C5 with cord compression disk bulge C3 C4, C4 C5 and C5 C6 as suggested by MRI. The admission note of AIIMS Hospital dated 24.08.2013 mentioned lower two incisor teeth dislocated from the roots. The final opinion as to the nature of injuries was given as grievous in nature. The final opinion of the Doctor is Ex.A2 which is admitted by the appellant hence proves that grievous injuries were suffered by the injured. In view of the above, the appellant has been rightly convicted under Section 338 IPC.
28. The appellant has been sentenced to 01 month SI or to pay fine of Rs. 1,000/- and in default further undergo SI for 05 days for the offence under Section 279 IPC. He was further sentenced to undergo SI for 06 months and to pay fine of Rs. 1,000/- and in default further undergo SI for 01 month for the offence under Section 338 IPC. It has been further directed that fine amount be paid to the complainant, who shall be free to approach the Delhi Legal Services Authority for compensation.
29. It was noted that the accident took place way back in the year 2013 and the appellant has been facing trial for the last 08 years. He has been diligently appearing in the court and there is Surte Ram Vs. State page 9 of 10 no record that he ever got involved in any accident thereafter. It may be relevant to note that as per the MLC the complainant had suffered simple injuries and was found to have some complication in his spinal. The complainant since then has expired and was not even able to appear as a witness in the Court.
30. Considering the totality of the circumstances appellant Surte Ram is directed to be released on probation for a period of one year subject to his furnishing Probation Bonds in the sum of Rs. 15,000/- each with one surety in the like amount.
31. Ld. Metropolitan Magistrate had directed that the fine so deposited by the appellant be released to the complainant. However, since the complainant/injured had expired during trial, the compensation be deposited in the Court, if not deposited already.
32. Trial Court record be sent back along with the copy of this order. Appeal File be consigned to Record Room.
Announced in the open (Neena Bansal Krishna) Court on 17.08.2021 Principal District & Sessions Judge South East, Saket Courts, New Delhi.
Surte Ram Vs. State page 10 of 10