Delhi District Court
State vs Raj Karan on 4 November, 2023
IN THE COURT OF MS. AISHWARYA SINGH KASHYAP,
METROPOLITAN MAGISTRATE (MM06), SHAHDARA,
KKD, DELHI
STATE Vs RAJ KARAN
CR NO: 470/2013; 80326/2016
FIR NO: 22/2009 PS Seemapuri
CNR No.: DLSH020005162009
In the matter of -
STATE
VS.
RAJ KARAN(Driver)
S/o Mishar Lal
R/o Village & PO Karala, Dist Kanthawla, Delhi .... Accused
1 Name of Complainant Vijay Kumar Arora
2 Name of Accused Raj Karan
3 Offence complained of Sec 279/304A IPC
4 Plea of accused Not Guilty
5 Date of Commission of offence 17.01.2009
6 Date of Registration of case 20.04.2013
7 Date of Reserving Order 26.08.2023
8 Date of Pronouncement 04.11.2023.
9 Final Order Convicted
JUDGMENT
Factual Matrix
1. Briefly stated, the case of the prosecution is that on 17.01.2009 at around 07:00 PM, Vijay Kumar Arora (hereinafter 'the complainant') was driving his scooter DL3SAK7921 (his wife Lata Arora was pillion rider) and crossed the traffic/red light near Chintamani Restuarant, when one DTC recovery van/bus No. DL1PB2348 which was towing DTC bus No. DL1PB1711 hit his scooter from behind whilst trying to overtake him i.e. his scooter was hit by the DTC recovery van/bus No. DL1PB2348 as 1 of 27 Digitally signed by AISHWARYA SINGH AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 16:53:12 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 he was driving the same rashly and negligently. While overtaking, the towing/recovery bus hit the scooter resulting in imbalance of scooter due to which it hit against the bus being towed and the complainant fell on the right side of the scooter and his wife Lata Arora fell on the left side of the scooter towards the bus; she was run over by the wheels of the towed bus DL1PB1711 on her stomach and head. She died on the spot. Public persons gathered at the spot and caught the drivers of both the buses and PCR call was made thereon. The bus being towed was DTC Bus No. DL1PB1711 and name of its driver was Dharam Singh and the offending bus i.e. the towing/DTC recovery van No. DL1PB2348 was being driven by Raj Karan (hereinafter 'the accused'). Therefore, FIR was registered at PS Seemapuri and chargesheet was filed against the driver/accused after due investigation for the offence U/s 279/304A of the Indian Penal Code, 1860 (hereinafter referred as 'the IPC').
Investigation and Trial Proceedings
2. The Ld. Predecessor took cognizance on 07.03.2009 and issued summons qua the accused with respect to the offences. The accused entered appearance before this court and in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, 'CrPC') he was supplied the copy of the chargesheet as well as documents relied upon in the same.
3. Thereafter, upon finding prima facie case against the accused Raj Karan, notice under Sections 279/304A of the IPC was framed upon the accused driver of offending vehicle on 25.08.2009, to which the accused pleaded not guilty and claimed trial. It is pertinent to mention that the trial suffered considerable delay on account of evidence being delayed during applications 2 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 16:53:34 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 moved on behalf of the accused, which were subsequently withdrawn by him as noted by Ld. Predecessor.
Prosecution Evidence
4. During the trial, the prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt.
Oral Evidence
PW1 Vijay Kumar Arora (complainant)
PW2 Manohar Lal (police witness)
PW3 Satyaveer Singh (MI)
PW4 HC Sunil Kumar (Police Witness)
PW5 Ct Sunil Kumar (Police Witness)
PW6 Ct Naveen Kumar (medical witness GTB)
PW7 Praveen Kumar (owner of scooter)
PW8 Dr. Jothika (medical witness GTB)
PW9 ATI Rohtash Kumar (ATI BBM)
PW10 Subash Chand (ATI BBM)
PW11 Harish Chand Pandey (Sr Tech Asst, GTB)
PW12 Dharam Singh (Met with Demise)
PW13 Dharam Singh (Police Witness)
PW14 ASI Jagdish Prasad (IO)
Documentary Evidence
Ex. PW1/A Daily Diary Entry of date of incident
Ex. PW4/A Complaint
Ex. PW6/A Endorsement on rukka
Ex. PW1/3 FIR
Ex. PW6/B Site Plan
ExPW4/D-G Disclosures
Ex PW7/A-B Mechanical Inspection Reports
Ex.PW5/G Disclosure Driver Duty Memo
Ex PW4/B Arrest Memo
Ex PW4/C Personal Search Memo
Ex PW8/A Superdeginama
Ex. PW9/A PM Report
Ex. PW6/D Dead Body Identification
ExP1-4 Pictures of Scooter and Offending Bus
CW1/A(OSR) Duty Roaster DTC of date of incident
3 of 27
Digitally signed by AISHWARYA SINGH KASHYAP
AISHWARYA SINGH KASHYAP Date: 2023.11.04 16:53:51 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016
5. During the course of trial, delay was caused during evidence for want of appearance of prosecution witnesses, Covid-19 Pandemic as well as the efforts to conduct plea- bargaining proceedings which could not materialise to its logical conclusion due to multiple withdrawals by the accused as observed by Ld. Predecessor vide order dated 28.01.2013. Further, on application under Section 311 CrPC moved on behalf of the accused, PW/IO Retd SI Jagdish Prasad was recalled for cross-examination vide order of Ld. Predecessor dated 31.03.2022 subject to cost. Further, IO was recalled by Ld. Predecessor to seek clarifications with respect to DTC duty roaster qua the accident. Thereafter, Depot Manager of DTC Bus Depot was summoned by the court with respect to identity of the driver as well as relevant record. Accordingly, CW1 Rohtash, ATI Banda Bahadur Marg Depot 1, Delhi appeared in person examined in chief, cross-examined and discharged.
6. (PW-4) Vijay Kumar Arora/the complainant is the star witness of the prosecution who deposed before the court on oath that on 02.05.2015. His examination-in-chief lucidly narrated the details of the event and the same is being reproduced hereunder:
I am residing at the aforesaid address with my family. On 17.01.09, I was going to the house of my wife situated at Geeta Colony alongwith my wife while riding on scooter bearing No DL3SAK7921. On the way at about 07:00 pm when I reached in front of Chintamani restaurant, GT Road and as soon as crossed Red Light in front of Chintamani restaurant one DTC recovery van bearing registration no DL1PB2348 came from behind in high speed and in negligent manner while toeing one another DTC bus bearing registration no DL1PB1711 and hit against my scooter while driver of DTC recovery van was overtaking my scooter in high speed and negligent manner due to which my wife namely Lata Arora fell down towards DTC Recovery Van side and I also fell down opposite side of DTC Recovery Van. My wife came beneath toeing DTC bus and left read side wheel of toeing DTC bus crushed over head of my wife. My wife succumbed on the spot to the injured. Public persons 4 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 16:54:11 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 apprehended drivers of both DTC bus and recovery van. 100 number call was made by someone and PCR van came on the spot. Today accused is present in the court today (witness correctly identified the accused). Upon inquiry, accused revealed his name Raj Karan who was driving DTC Recovery Can at time of incident. I alongwith my wife taken to GTB Hospital by the PCR Van. Local police official met me in the hospital and recorded my statement which is Ex PW4/A bearing my signatures at point A. Thereafter, FIR was registered and I came back at the spot alongwith police and police arrested the accused vide memo Ex. PW4/B bearing my signatures at point A. Personal Search of accused was carried out vide memo Ex PW4/C bearing my signatures at point A. Police Official seized both offending DTC vehicle vide respective seizure memos Ex PW4/D and Ex PW4/E both bearing my signatures at point A. Police official seized damaged scooter vide memo Ex PW4/F bearing my signature at point A. Police official seized DL of the accused vide seiure memo bearing my signature at point A. Police prepared site plan at my instance. The said accident took place due to negligence of the accused was was driving DTC Recovery can he was overtaking my scooter in high speed and negligent manner while toeing another DTC bus. I can identify the offending bus if shown to me.
At this stage, 08 photographs including photograph of scooter and DTC vehicle are shown to the witness and witness correctly identified the same by their registration number. Photographs are Mark A1 to A8.
In the mortuary of hospital, I identified the dead body of my deceased wife and PM. I received dead body of my deceased wife for cremation.
Court Question: Did you see the accused at the spot when the accident occurred?
Answer: I did not see the accused at the time of incident as I had gone to the hospital. I saw the accused for the first time in the court and not before. I can identify the accused since I had seen him in the court.
At this stage, Ld. APP seeks permission to cross-examine the witness on the point of identification of accused. 6A. Unfortunately, the witness could not be examined promptly because initially he failed to appear before the court and subsequently, adjournment was sought by accused to cross- examine the witness. Again, the complainant/PW4 failed to appear before the court. In the interim, other prosecutions witnesses were examined instead of the eye-witness/complainant. No objection was raised by the accused. Therefore, considerable time had lapsed since the deferred examination-in-chief of 5 of 27 Digitally signed by AISHWARYA SINGH AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 16:54:30 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 PW4/the complainant which was deferred at request of Ld. APP for the State on 02.05.2015. He was recalled on 02.03.2022. In his remaining chief, the witness deposed that he could not say whether the accused was present at the spot when he returned to the spot from the hospital. He did not remember regarding the accused or the person was driving the offending vehicle at the time of incident due to lapse of time as the incident occurred in the year 2009. The cross-examination of the witness is being reproduced hereunder:
I do not remember today the registration number of the offending vehicle. I also do not remember today the registration of my scooter. At the time of incident around 8 to 10 persons were present in the offending bus. I have not seen the accused at the time of incident. I can not say whether the accused present in the court or not. I can not say due to whose negligence the incident occurred. I was not carrying the driving license while riding the scooter at the time of incident. My wife has fallen on the right side of the road. It is wrong to suggest that I am deposing falsely.
7 (PW-1) HC Sunil Kumar, deposed before the court that on the date of incident, he was posted at PS- Seemapuri and received information about the incident which was recorded as DD No 25A and was handed over to ASI Jagdish Parasad through Ct. Sunil Kumar. On the same day, Ct Naveen came to the PS with rukka sent by ASI Jagdish Prasad and FIR No 22/2009 was registered. The witness was not cross-examined despite opportunity being given.
8. (PW-2) Ct Sunil Kumar, who deposed that on 17.01.2009, he was on emergency duty and reached the spot with the IO/ASI Jagdish Prasad after receiving DD No.25A and found scooter DL3SAK7921 lying on the road in accidental condition and one recovery van bearing no DL1PB2348 which was towing one DTC Bus bearing no DL1PB1711. They saw one lady lying on the road in injured and unconscious condition and was taken
6 of 27 Digitally signed by AISHWARYA SINGH KASHYAP AISHWARYA SINGH KASHYAP Date: 2023.11.04 16:55:07 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 to GTB Hospital by her relatives. The witness accompanied them while IO remained on the spot. The witness collected MLC No. D218/09 of injured Lata Arora who was declared brought dead. The body was kept in the mortuary of the hospital after IO reached the hospital, his statement was recorded. The witness was not cross-examined despite opportunity being given.
9. (PW-3) Subhash Chand, ATI BBM Depot Kingsway Camp, on 28.03.2014, who deposed about the offending bus as well as towed bus being taken on superdarinama/Ex PW3/A on behalf of DTC by Mahender Singh. The identity of the buses was not disputed by the accused and both are Ex. P1 and P2. The witness was not cross-examined despite opportunity being given. The accused was present in court with his counsel, Sh. Narender Kumar.
10. (PW-5) Ct Naveen Kumar, who deposed that on the date of incident, the accident occurred between a scooter and DTC recovery bus. The witness did not remember the number of the vehicles. He stated that IO came at the spot and took possession of offending vehicle vide seizure memo Ex PW4/D and Ex PW4/E as well as of scooter as Ex PW4/F. The witness was cross-examined by Ld. APP for the State with respect to material details about the incident, the lady found lying on the road in unconscious condition and details of rukka and preparation of arrest memo and personal search memo. The witness correctly identified the accused present before the court as well as the photographs of the offending vehicles. During cross-examination by the accused, the witness denied not having participated in the investigation or that he was cited as witness at the instance of IO 7 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 16:56:40 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 or that no documents were prepared in his presence or that he was deposing falsely.
11. (PW-6) Retd SI Jagdish Prasad/IO, on 04.07.2019, who deposed that on 17.01.2009, he was posted at PS Seemapuri and present on emergency duty. He deceived DD No.25A dated 17.01.2009 Ex PW1/A regarding the accident at GT Road near Chintamani restaurant and went to the spot alongwith Ct Sunil Kumar. They noticed one lady was lying on the road in injured condition and unconscious state. One Vijay Kumar Arora, the husband of injured lady was also present who had already caught hold the accused with the help of other persons and handed over him to the drivers of DTC buses. One scooter bearing no DL3SAK7921 and two DTC buses bearing registration no DL1PB1711 and DL1PB2348 were stationed. The witness shifted the injured lady to GTB Hospital through Ct Sunil Kumar and called other staff for spot safeguard. The witness went to GTB Hospital and collected MLC No B2189 of injured Lata Arora which mentioned the patient was brought dead. Vijay Kumar Arora, the eye witness of incident was present in the hospital. The witness alongwith Vijay Kumar Arora came back at the spot. He recorded the statement of Vijay Kumar Arora Ex. PW4/A and made endorsement on the complaint Ex PW6/A. The witness sent rukka through Ct Naveen and got the case registered at PS. The witness inspected the spot and prepared the site plan Ex PW6/B in the presence of the complainant. Ct Naveen brought rukka and copy of FIR Ex PW1/B. The witness seized the bus DL1PB2348 vide seizure memo Ex PW4/D and bus DL1P1711 vide seizure memo Ex PW4/E and scooter no DL3SAK7921 vide seizure memo Ex PW4/F. The accused was 8 of 27 Digitally signed by AISHWARYA SINGH KASHYAP AISHWARYA SINGH KASHYAP Date: 2023.11.04 16:57:20 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 arrested at the instance of complainant vide arrest memo Ex PW4/B and his personal search memo is Ex PW4/C. The accused present in the court was correctly identified by the witness. The witness took the DL of the accused as well as his duty slip vide seizure memo Ex PW4/G and Ex PW5/G. The witness recorded the supplementary statement of the complainant and other witnesses at the spot and on completion of investigation, came to PS with staff and offending vehicle which was deposited with MHC(m). The accused was released as offence was bailable. The dead body was preserved and inquest papers Ex. PW6/C were prepared. The dead body was identified through Vijay Kumar Arora and Nanak Arora by second IO/SI Dharam Singh because witness was busy in investigation of another case on that day. Said IO got the post mortem conducted and witness collected the PM Report and placed on file. The witness recorded the statement of other witnesses and upon completion of investigation, prepared the chargesheet. The witness correctly identified the vehicles i.e. both buses and scooter through photographs. The witness was not cross-examined despite opportunity being given.
11A. The witness was not cross-examined despite opportunity being given. It is pertinent to mention that the accused belatedly moved an application under Section 311 CrPC to recall the IO and be given one opportunity to cross-examine the witness. The same was allowed by the Ld. Predecessor subject to cost. Thereafter, the witness was recalled and cross- examined after considerable lapse of time on 02.04.2022. During cross-examination, the witness deposed that he reached the spot within 5-7 minutes after receiving the information. Some public 9 of 27 Digitally signed by AISHWARYA SINGH KASHYAP AISHWARYA SINGH KASHYAP Date: 2023.11.04 16:57:46 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 persons were present at the spot. The registration of the offending vehicle was DL1PB2348. He did not record the statement of any public person present at the spot. He inquired from the person present in offending vehicle. He did not remember whether he checked the DL of the complainant on scooter. He denied the suggestion that the spot was a busy place and the offending vehicles were stationed at one place. He further denied the suggestion that the offending vehicle was falsely implicated in the present case or that he prepared all the documents while sitting in PS or that all witnesses were planted witnesses. As per information, the incident occurred around 7 PM. He further denied the suggestion that the accused had been falsely implicated in the present case and the accused was not driving the offending vehicle at the time of accident or that witness was deposing falsely.
12. (PW-7) Satyaveer Singh who deposed that he inspected the DTC buses and prepared Inspection Reports which are Ex. PW7/A and Ex PW7/B which bore his signatures. During cross- examination by the accused, the witness deposed that he was 70 years old and after paralysis, his memory was weak. He did not remember the report of both buses made by him as his memory was weak.
13. (PW-8) Praveen Kumar, who deposed that he was the registered owner of the Scooter bearing No DL3SAK7921 and on 17.01.2009, he had given the scooter to his brother in law/complainant Vijay Kumar Arora who faced an accident. His scooter was seized by the police officer. On superdari order, the witness received his scooter on superdarinama Ex. PW8/ bearing his signature at point A. The witness identified the pictures of the 10 of 27 Digitally signed by AISHWARYA SINGH AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 16:58:17 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 scooter as Ex. P1-4. During cross-examination by the accused, the witness deposed that he did not check whether the complainant had valid driving license. He did not remember the exact scooter number due to long span of time. He did not remember whether his brother in law was a good driver or not.
14. (PW-9) Harish Chand Pandey, Senior Technical Assistant, Department of Medicine UCMS & GTB Hospital, Delhi, who deposed before the court on oath that he was working there since 1991 and he had brought the postmortem report no 60/09 dated 18.01.2009 prepared by Dr. Juthika Debbarma. The witness was authorized by the HOD Forensic Medicine UCMS & GTB Hospital to depose in the aforesaid regard. The witness identified the signature of Dr Jothika Debbarma as he worked with her and saw her write and sign. After perusing the report no 60/09, the witness identified the signature of Dr Juthika Debbarna. The PM Report was Ex PW9/A bearing the signature of Dr Juthika Debbarna at point A. During cross-examination by the accused, the witness stated that he did not have any personal knowledge of the present case. No other question was put to the witness.
15. (PW-10) Retd SI Dharam Singh, who deposed that the investigation of the case was handed over to him for further investigation and he got the post mortem of the deceased Lata Arora through GTB Hospital. The dead body of the deceased was identified by her husband vide identification memo Ex PW6/D bearing his signature at point A and PW10/A bearing his signature at point A whereby the dead body was handed over to the husband of the deceased. The investigation was transferred from the witness to IO/ASI Jagdish Prasad as he returned from 11 of 27 Digitally signed by AISHWARYA SINGH AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 16:58:47 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 outstation. Thereafter, the witness handed over the complete file to MHC(R) PS Seemapuri. During cross-examination by the accused, the witness deposed that he only conducted the investigation qua the post mortem of the deceased and did not conduct any other investigation. The witness stated that he did not say anything regarding the investigation conducted by the other IO.
16. (CW1) ATI Rohtash Kumar, from Banda Bahadur Marg, Depot first was summoned as court witness by Ld. Predecessor to clarify the fact with respect to identity of the driver who was driving the offending vehicle DL1PB2348. He deposed before the court on oath that he brought the duty slip of driver Raj Karan/accused Batch No 19465. As per the record, driver Raj Karan Batch No 19465 was the driver of the bus No DL1PB2345 and in this regard diary no 211 dt 28.01.2009 was registered. As per the record, Raj Karan was driving the bus No. DL1PB2348 on 17.01.2009 at about 7:00 pm. Copy of the same was taken on record as Ex CW1/A (OSR). During cross- examination, the accused did not dispute the genuineness of the document Ex. CW1/A and simply asked about the number of persons allowed to sit in the recovery van. It is being reproduced as under:
"No person is allowed to sit in recovery van except driver."
17. Therefore, the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the table above. It is also pertinent to mention that the driver of DTC bus No. DL1PB1711 which was being towed by the offending bus namely Dharam Singh could not be examined as he met with his untimely demise.
12 of 27 Digitally signed by AISHWARYA SINGH KASHYAP AISHWARYA SINGH KASHYAP Date: 2023.11.04 16:59:18 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 Statement of Accused
18. Thereafter, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of accused was recorded without oath by the Ld. Predecessor on 06.04.2022 under section 313 CrPC. In response, the accused denied all the allegations against him and stated that he had been falsely implicated in the present case thereby pleading innocence. He stated that the accident was caused by some other vehicle. The accused did not opt to lead any evidence in his defence, therefore matter was listed for final arguments.
19. Rival submissions were heard on behalf of the accused as well as the State. Whilst Ld. APP for the State sought conviction on the basis of the sterling testimony of the complainant juxtaposed with the corroboration by the other prosecution witnesses and documentary evidence on record, Ld. Counsel for the accused vehemently opposed the same citing unsubstantiated version of the prosecution, dispute with respect to the identity of the offending vehicle and accused thus claiming that the accused has been falsely implicated in the case. It was argued that as per his evidence, the complainant could neither establish the presence of accused at the spot nor the identity of the accused or the offending vehicle in the present case. It was also argued that PW5/Ct Naveen Kumar could not depose properly with respect to the registration numbers of the offending vehicles thus creating doubt with respect to the identity of the offending vehicle in the present case. Question was also raised with respect to mechanical inspector PW7/Satyaveer Singh who did not elaborate due to his old age of 70 years and PW8/Praveen Kumar 13 of 27 Digitally signed by AISHWARYA SINGH KASHYAP AISHWARYA SINGH KASHYAP Date: 2023.11.04 16:59:51 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 doubting the identity of the scooter of the injured involved in the accident.
Ingredients of the Offences Involved
20. In order to establish the offences as mentioned hereunder, the prosecution must fulfil all the essential ingredients and the scales of degree of proof essential in a criminal trial is proving the guilt of the accused beyond reasonable doubt. I. Section 279 IPC: Rash driving or riding on a public way:
Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
II. Section 304A IPC: Causing Death by Negligence: Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
APPRECIATION OF EVIDENCE Burden of Proof
21. Our criminal jurisprudence postulates that burden of proof of commission of the offence lies on the prosecution and the offence committed must be proved beyond reasonable doubt. Thus, the prosecution must satisfy all the essential ingredients of the offence by the accused as per the version of the prosecution. In order to bring home the guilt of the accused, the prosecution has to prove that the accused was driving the offending vehicle 14 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 17:00:26 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 on a public way rashly or negligently, and caused the death of the victim. The act should not amount to culpable homicide.
Accused was Driving the Offending DTC Bus
22. The fact that accused was driving the vehicle on a public way is an admitted position not only on the basis of admission of the accused before the court during the recording of his statement under Section 313 CrPC but also the fact that the relevant witness from the Transport Department proved the fact that accused was driving the offending DTC Recovery Van on the date of incident through the production of documentary evidence i.e. duty slip. For the purpose of the present case, both the DTC buses will be considered together as one vehicle being driven by the accused as it was his responsibility to toe the DTC bus with utmost safety whilst ensuring that no harm is caused to anyone inside or outside both the buses being driven by him. On 06.04.2022, during his statement recorded without oath as per the provision of Section 313 CrPC, the accused stated that "I was not driving the vehicle in high speed as there was a traffic jam at the time of incident" and "I was not driving the bus with negligence as it was a DTC bus." Therefore, nowhere during the trial, the accused disputed the fact that he was not driving the offending DTC bus at the time and place of incident. He simply stated that it was not being driven by him in high speed or negligently.
23. Further, it has been categorically mentioned during the evidence of PW3/Subhash Chand recorded on 28.03.2014, ATI, BBM that the identity of the buses is not disputed by the accused/defence wherein the accused and his counsel were present during the evidence of the Transport Authority Witness. The relevant portion is being reproduced hereunder:
15 of 27 AISHWARYA SINGH KASHYAP Digitally signed by AISHWARYA SINGH KASHYAP Date: 2023.11.04 17:01:04 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 Today, I have brought two DTC buses bearing registration no DL1PB2348 and DL1PB1711 which Sh. Mahender Singh, Traffic Inspector had taken on superdari on behalf of Delhi Transport Corporation vide superdarinama Ex. PW3/A bearing his signature at point A. I identify the signature of Mahender Singh as I have worked with me (sic). Both the buses are parked outside the court complex.
Ld. Defence Counsel does not dispute the identity of the aforesaid buses. Both buses are Ex. P1 and P2.
XXX by Sh. Narender Kumar, Ld. Counsel for accused. Nil. Opportunity given.
24. Elsewhere, with respect to the identity of the offending DTC bus as well as identity of the driver who was driving the said offending DTC bus, CW1 Rohtash Kumar was summoned by the court and on 29.04.2023, the witness deposed before the court on oath and furnished on judicial record the duty slip Ex CW1/A which clearly reflected that the offending DTC Recovery Bus number DL1PB2348 was being driven by the accused. The relevant portion is being reproduced hereunder:
I am summoned witness in the present case. Today I have brought relevant record that is original duty slip of the driver Raj Karan Batch No. 19465. As per record accused Raj Karan Batch No. 19465 was the driver of the bus no. DL1PB2348 and in this regard diary no 211 dt 28.01.2009 was registered. As per record Raj Karan was driving the bus no. DL1PB2348 on 17.01.2009 at about 07:00 PM. Now copy of the same is taken on record and which is now Ex. CW1/A (OSR).1 During his cross-examination, the witness was put solitary undermentioned question and he deposed as under:
No person allowed to sit in the recovery van except driver.2
25. Even with respect to the identity of the scooter DL3SAK7921 which was involved in the accident with the offending bus, the accused did not dispute the fact that the said scooter was being driven by the complainant on the date of incident either during the cross-examination of PW8/Praveen Kumar (owner of scooter) or during the cross-examination of the complainant himself or even during the cross-examination of 1 Examination in Chief of CW1 Rohtash Kumar ATI BBM on 29.04.2023. 2 Cross Examination of CW1 Rohtash Kumar ATI BBM on 22.07.2023.
16 of 27 AISHWARYA SINGH KASHYAP Digitally signed by AISHWARYA SINGH KASHYAP Date: 2023.11.04 17:01:46 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 PW2/Ct. Sunil Kumar who clearly deposed before the court on oath that when he reached the spot, the scooter bearing no DL3SAK7921 was found lying on the road in accidental condition.
26. The defence, as outlined during arguments and as per written submissions, is that the identity of the offending DTC bus, the identity of the accused driver and the scooter of the complainant is in doubt on account of the testimonies of the complainant, PW5/Ct Naveen Kumar (police witness), PW7/Satyaveer Singh (mechanical inspector) and PW8/Praveen Kumar (owner of scooter driven by complainant at time of incident). However, as already aforementioned, the identity of the offending buses and complainant's scooter was never disputed by the accused during trial, nor the fact that the accused was driving the offending bus/recovery van. The mechanical inspection report is not disputed and was duly proved by PW7. His cross-examination only underscored the fact that witness had a weak memory due to age of 70 years. No other question was put to the witness during cross-examination. The same is applicable to testimony of PW8/Praveen Kumar and the complainant/PW4 and no objection was raised by the accused with respect to identity of the scooter involved in the accident being driven by the complainant. PW5/Ct. Naveen Kumar was cross-examined by Ld. APP for the State to bring forth material facts as the incident was of the year 2009 and the witness was examined in the year 2017. The prosecution case has been duly supported by all the other prosecution witnesses therefore, no issue is made out with respect to the prosecution version.
17 of 27 AISHWARYA SINGH KASHYAP Digitally signed by AISHWARYA SINGH KASHYAP Date: 2023.11.04 17:02:31 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016
27. The only seeming issue is allegedly the failure of the complainant to identify the accused or reveal the registration number of the offending bus. However, it is extremely pertinent to mention herein that the witness/PW4/the complainant had deposed before the court on oath and gave very lucid details of the incident, the identity of the scooter driven by him as well as the registration numbers of both the buses including the offending DTC bus whilst also correctly identifying the accused present before the court on 02.05.2015. However, his further examination was deferred for identification of accused and he was not cross-examined until 02.03.2022 i.e. lapse of almost thirteen years from the date of incident in the year 2009. Against the backdrop of the aforesaid documentary evidence Ex. CW1/A (OSR) as well as testimonies of other witnesses, including CW1, alongwith statement of accused himself under Section 313 CrPC, it is evident that the offending DTC bus was being driven by the accused DTC Driver Raj Karan. The fact that the witness could not regurgitate the registration numbers in the year 2022 points towards his truthfulness, underscoring the tribulations of a witness who became victim to the delay caused during the trial. Herein, it is apposite to refer to the caution laid down in State of Uttar Pradesh vs Naresh and Others,3 wherein the court observed as under:
In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time due to mental disposition such as shock and horror at the time of occurrence. Where the omission amounts to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make a material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor 3 (2011) 4 SCC 324.
18 of 27 Digitally signed by AISHWARYA SINGH AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 17:03:12 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its own opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
28. The witness also could not have seen the accused at the time of incident as he was driving the scooter which was hit by the offending DTC recovery bus/van from behind causing him and his wife to fall down wherein the latter was run over by the wheels of the bus. Therefore, during cross-examination, the witness truthfully deposed that he did not see the accused. Further, the persons sitting in the bus may have been those sitting in the bus being towed by the offending DTC bus and does not corrode the prosecution version. The fact that the offending bus was in-fact being driven by the accused is clinched by necessary documentary evidence i.e. CW1/A therefore, there is no merit in the objection raised by the accused and it deserves to be rejected.
29. On an additional note, the aforesaid fact that the offending DTC bus was being driven by the accused on the date of incident is further supported by one order of the Hon'ble Delhi High Court which is part of the judicial file and judicial notice can be taken of the same. Perusal of the record reveals that the status of the case was sought by Hon'ble Delhi High Court which had stayed the Award passed in favour of the accused. In the order of Hon'ble High Court of Delhi dated 09.02.2022 whereby award dated 17th September 2021 passed by Ld. PO, Industrial Tribunal 01, Rouse Avenue Courts, New Delhi was stayed. Therein, at para 8, Hon'ble Court had reproduced the cross-examination of the driver. The relevant portion of said cross-examination which 19 of 27 Digitally signed by AISHWARYA SINGH KASHYAP AISHWARYA SINGH KASHYAP Date: 2023.11.04 17:03:54 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 has been highlighted and underlined in Para 8 of the aforesaid order is being reproduced hereunder:
It is correct that in reply Ex. WW1/2, I have stated that I was seeing side glass one scooter who was coming behind the Rickshaw to overtake that rickshaw the scooter rider hit the rickshaw and due to unbalanced driving the driver of the scooter as well as is wife fell down and strike with bus no DL1PB1711 which was tochen behind the recovery van and the accident caused due to above circumstances.
30. Thus, no question of dispute with respect to identity of the offending DTC bus being driven by the accused himself and/or the identity of the scooter of complainant which was hit by the offending DTC bus arises in the present case. The accused has failed to bring on record details of any other vehicle/rickshaw in his defence during the entire trial. Further, even if the court did not consider the revelations of the aforesaid order, the preceding paras have extensively proved that the accused was driving the offending DTC bus and that objections of the accused hold no water.
Accused Driving the Offending DTC Bus Rashly and Negligently
31. The complainant/PW4 Vijay Kumar Arora deposed before the court on oath that as he was driving the scooter with his wife Lata as pillion, the offending DTC Recovery Bus which was toeing another DTC bus rashly and negligently tried to overtake the scooter thereby hitting him, causing him and his wife to fall and the latter came under the wheels of the bus crushing her head and stomach wherein she succumbed to her injuries at the spot. He deposed as under:
I reached in front of Chintamani restaurant, GT Road and as soon as crossed Red Light in front of Chintamani restaurant one DTC recovery van bearing registration no DL1PB2348 came from 20 of 27 Digitally signed by AISHWARYA SINGH AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 17:04:42 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 behind in high speed and in negligent manner while toeing one another DTC bus bearing registration no DL1PB1711 and hit against my scooter while driver of DTC recovery van was overtaking my scooter in high speed and negligent manner due to which my wife namely Lata Arora fell down towards DTC Recovery Van side and I also fell down opposite side of DTC Recovery Van. My wife came beneath toeing DTC bus and left read side wheel of toeing DTC bus crushed over head of my wife. My wife succumbed on the spot to the injured.
32. The fact that the accused was driving a DTC recovery van/offending vehicle which was toeing another DTC bus itself imposed upon him the duty of greater care and caution to ensure utmost safety of persons inside as well as outside both the vehicles as the responsibility of both was upon his shoulders as he was toeing the other DTC Bus on public way. The fact that the accused in any way attempted to overtake a scooter near a red light is evidence of rash and negligent driving as there was bounden duty upon the accused/DTC Driver to be extra cautious. The gravamen of the offence is driving the offending vehicle with "rashness" or "negligence" (not defined in IPC). These terms have been lucidly interpreted by constitutional courts to clearly carve out their import in offences of such nature. For instance, in Empress of India vs. Idu Beg4 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the consequence of such act. Elsewhere, the Hon'ble Apex Court in the case of Rathnashavlvan vs. State of Karnataka5 has observed, inter alia, as under:
7. .... Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case.
Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal 4 ILR (1881) 3 All 776.
5 (2007) 3 SCC 474.
21 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 17:05:32 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.
33. Similar observations were made by the Hon'ble Apex Court in the case of Sushil Ansal vs. CBI6 where the standard of negligence was deliberated upon whilst observing as under: -
58. In the case of "negligence" the courts have favoured a meaning which implies a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the immutability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The immutability in the case of negligence arises from the neglect of the civil duty of circumspection.
6 (2014) 6 SCC 173.
22 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 17:06:42 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016
34. Thus, rashness implies doing an act despite the conscious knowledge that it might result in injuries, whereas negligence reflects the utter lack of reasonable care that a person placed in the fact situation ought to take, in order to avoid injuries. The observations of Hon'ble apex court in this regard also fortify the above reasoning. In Ravi kapur vs. State of Rajasthan,7 the Hon'ble court while adopting the principle of res ipsa loquitur in criminal accident cases, held that negligence can be gathered from attendant circumstances of the case, after the fact of accident is duly proved. It was also observed as under: -
15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes -- one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of "culpable rashness" and "culpable negligence" into consideration in cases of road accidents. "Culpable rashness" is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). "Culpable negligence" is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks 7 (2014) 6 SCC 173.
23 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 17:07:33 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's An Exhaustive Commentary on Motor Vehicles Act, 1988 (1st Edn.,2010).]
16. We have noticed these principles in order to examine the questions raised in the present case in their correct perspective. We may notice that certain doctrines falling in the realm of accidental civil or tortious jurisprudence, are quite applicable to the cases falling under criminal jurisprudence like the present one.
35. It is pertinent to underscore the fact that under our criminal jurisprudence, it is the quality and not the quantity of the evidence that is material wherefore conviction may be secured based on the testimony of solitary reliable witness. Herein, the observation of Hon'ble Supreme Court of India in Kuna @ Sanjaya Behera vs. State of Odisha8 is relevant stating that the conviction can be based on the testimony of single eyewitness if he or she passes the test of reliability and it is not the number of witnesses but the quality of evidence that is important. The Hon'ble Supreme Court of India in Veer Singh & Others vs State of UP9 observed as under:
Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been proved under section 134 of the Evidence Act. As a general rule the court can and may act on the testimony of single witness provided, he is wholly reliable.
36. The prosecution does not require number of eye witnesses to prove its case beyond reasonable doubt. Even if 8 2017 SCC Online SC 1336.
9 (2014) 2 SCC 455.
24 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 17:08:32 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 there is one eyewitness and his testimony is up to the mark, the conviction can be based upon the same. In Namdeo vs. State of Maharashtra,10 the Hon'ble Supreme Court of India held as under:
In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, this Court held that even where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. "It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." In Anil Phukan v. State of Assam, (1993) 3 SCC 282 : JT 1993 (2) SC 290, the Court observed;
"Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.
37. In the present case, not only the complainant but the remaining prosecution witnesses including medical, transport authority and police witnesses have corroborated the prosecution version in all material particulars. Thus, in the instant facts and circumstances of the present case juxtaposed with the testimony of the complainant which is corroborated by the police, medical and transport authority witnesses, it is evident that the accused was driving the offending vehicle rashly/negligently by overtaking and hitting the scooter of the complainant and running 10 (2007) 14 SCC 150.
25 of 27 AISHWARYA SINGH Digitally signed by AISHWARYA SINGH KASHYAP KASHYAP Date: 2023.11.04 17:09:27 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 over his wife thereby causing her death not amounting to culpable homicide.
Rashness or Negligence of the Accused Caused the Death of Wife of Complainant
38. The accused while driving the offending DTC bus hit the complainant's scooter whereby the pillion ride/his wife Lata fell down and came under the wheels of the DTC bus. As per the MLC, she was declared brought dead. The PM Report Ex. PW9/A was duly proved by PW9 Harish Chand Pandey. The testimony of the complainant and other prosecution witnesses is materially corroborated by the medical record of the present case. As per the PM Report Ex PW9/A dated 18.01.2009 timed 10:30 AM, the description of injuries is reflected in great detail including 'open fractures of multiple skull bones and nasal bones. The brain matter is lacerated and exposed to the surface..."; "the loops of the intestines...is exposed"; "fracture and dislocations present at the level of T3 and T4 vertebrae exposing the spinal cord." The extensive description of injures itself, along with date and time of the MLC, corroborate the material particulars of the offence as deposed by the complainant and other prosecution witnesses before the court on oath. The same has been proved by the medical witness/PW9 who deposed before the court on oath and proved the MLC wherein the accused failed to cross-examine the witness on any material point. The testimony of PW1/the complainant underscored the fact that on the date of incident, the accused was driving the offending DTC bus toeing another DTC bus which hit him and ran over his wife as a result of which, the wife of the complainant succumbed to her injuries. The accused has failed to bring any 26 of 27 Digitally signed by AISHWARYA SINGH KASHYAP AISHWARYA SINGH KASHYAP Date: 2023.11.04 17:10:56 +05'30' State vs Raj Karan FIR No 22/2009 PS Seemapuri CR No 470/2013; 80326/2016 cogent material on record to create any doubt in the mind of the court and the prosecution has successfully established the commission of the offences by the accused beyond all reasonable doubt.
Decision
39. In view of the above discussion, the prosecution has successfully proved the ingredients of the offences beyond reasonable doubt. The testimony of star witness of the prosecution inspires confidence and cogently implicates the accused. The other prosecution witnesses have corroborated the case set up by the prosecution and the documentary evidence on record has proved the offences under Section 279/304A IPC beyond reasonable doubt against the accused. The defence of the accused of false implication remains unproved. Accordingly, the accused is hereby found guilty and is convicted for the offences punishable under Sections 279/304A IPC.
ORDER: Convicted Let free copy of the judgment be provided to the convict free of cost against acknowledgement.
Announced in Open Court in the presence of the accused on 04.11.2023.
(This judgement contains 27/Twenty Seven signed pages.) Digitally signed by AISHWARYA SINGH KASHYAP AISHWARYA SINGH KASHYAP Date: 2023.11.04 17:12:02 +05'30' (Aishwarya Singh Kashyap) MM 06/SHD/KKD Courts/Delhi 04.11.2023 27 of 27