Delhi High Court
State (Delhi Administration) vs Desh Raj on 10 August, 2007
Equivalent citations: 2007CRILJ4595, 2007 CRI. L. J. 4595, 2008 (1) AJHAR (NOC) 150 (DEL), (2008) 1 DLT(CRL) 651, (2008) 1 ACC 710, (2007) 4 TAC 410, (2007) 3 CHANDCRIC 234, 2008 (1) AJHAR (NOC) 150 (DEL.) = 2007 CRI. L. J. 4595, 2008 (1) AKAR (NOC) 2 (DEL.) = 2007 CRI. L. J. 4595
Author: J.M. Malik
Bench: J.M. Malik
JUDGMENT J.M. Malik, J.
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1. This appeal is directed against the order dated 22nd March, 1985, of the learned Metropolitan Magistrate, whereby the learned Metropolitan Magistrate acquitted the respondent/accused of charges under Sections 279/304A IPC. The indictment against the accused/respondent is as follows. On 3rd October, 1979, at about 10.45 a.m. at Laxmi Nagar bus stop the deceased G.J.Singh, who was waiting for his bus, was knocked down by a bus bearing No. DLP 5085, Route No. 304, allegedly driven by the respondent in a rash and negligent manner. The said incident was witnessed by three prosecution witnesses. Constable Bal Kishan, PW-3, was on duty from 8 a.m. to 11 a.m. at Laxmi Nagar Bus Stand. Hansal Rose, PW-2, nephew of the deceased, took the injured to the hospital. Ashok Kumar, PW-1, neighbour of the deceased, went to inform the inmates of house of the Page 2393 deceased. Constable Bal Kishan, PW-3, went to the Police Post Shakar Pur and got recorded the DD No. 14, Ex.PW7/A, wherein it was stated that at about 10.45 a.m. one "bus No. DLP 5058"" of route No. 304 came from the Patpar Ganj side and hit against a person aged about 50/55 years and thereafter, the bus driver vamoosed with the bus. The case was marked to SI Mahinder Singh for investigation. SI Mahender Singh arrived at the spot wherein he did not find any eye witness. He could not locate the hospital where the injured had been removed. On the basis of the DD entry, FIR was lodged. After some time, the investigating officer arrived at Jai Prakash Narayan Hospital where the injured had been brought dead by Hansal Rose, PW-2. However, Hansal Rose was not available. The accused was arrested on 23rd October, 1979 and challaned for offences under Sections 279/304A IPC.
2. The trial court acquitted the accused on the following grounds. Firstly, all the three witnesses stated on oath that the accident took place with "bus No. DLP 5085". However, DD entry, Ex.PW7/A and FIR, Ex.PW6/A, mention that the accident took place with "bus No. DLP 5058". The trial court opined that this is a material discrepancy in the prosecution case. Secondly, the bus was taken into possession and the accused was taken into custody on 23rd October, 1979, that is, 19 days after the alleged accident. No explanation is forthcoming as to why there was a long delay in arresting the accused and seizing the bus. Thirdly, the accused suggested to every witness that the accident did not take place with his bus rather it took place with another roadways bus which was coming behind his bus. According to the accused, that bus driver ran away with the bus after hitting the deceased.
3. I have heard the learned Counsel for the parties. Counsel for the respondent has submitted that the presence of Ashok Kumar, PW-1, and Hansal Rose, PW-2, is open to doubt. He pointed out that they are got up witnesses. He stressed that under these circumstances no reliance should be placed on their testimony. He raised no argument in respect of testimony of Constable Bal Kishan except that number mentioned by him was incorrect. He also drew my attention towards the impugned judgment wherein it is mentioned that the investigating officer did not find any eye witness either on the spot or in the hospital.
4. I find force in this argument in a measure. Although the presence of Ashok Kumar, PW-1, appears to be doubtful, yet the presence of Hansal Rose, PW- 2, and Bal Kishan, PW-3, stands established. Constable Bal Kishan, PW-3, is a natural witness, who was posted at the spot itself at the time of accident. The accident occurred in his presence and he got recorded the DD entry, Ex.PW7/A. The presence of Hansal Rose, PW-2, also stands established. A bare look on the medical certificate, Ex.PW4/A, shows that the appellant was brought to Lok Naryan Jai Prakash hospital by Hansal Rose, PW-2. Further, Constable Bal Kishan, PW-3, deposed that the person who was hit by the bus was removed to the hospital in a taxi. He also affirms the presence of Hansal Rose on the spot. Thus, it stands established that both these witnesses were present at the spot. Both of them appear to be guileless.
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5. The statement of Ashok Kumar, PW-1, is, however, wee bit contradictory. He stated that after the accident he went to inform the inmates of house of the deceased. He explained that when he came back the deceased had already been removed to the hospital. When Hansal Rose was present at the spot there was no need to inform the other relatives of the deceased.
6. The second submission made by the counsel for the respondent is that the trial court has delivered a well-reasoned judgment. There is no reason to upset the same. He pointed out that all the three reasons given by the trial court are sound and proper. In order to bring his point home, counsel for the respondent has cited the following three authorities reported in Sanwat Singh and Ors. v. State of Rajasthan , Vijay Bhai Bhanabhat Patel v. Navnit Bhai Nathurbai Patel II (2004) CCR 178 (SC) and State of Goa v. Sanjay Thakran and Anr. with Subhash Chandra Nanda v. Sanjay Thakran and Anr. . In all these cases it was held that unless the Court reaches the conclusion that the entire approach of the courts below in appreciating the evidence is patently illegal or that the conclusion arrived at is wholly untenable, unsustainable and that if on an appraisal of evidence, only one view is possible, then alone the appellate court shall exercise the jurisdiction in appeal and convict the acquitted accused person.
7. The above-said authorities have no application to the facts of the present case. It must be borne in mind that mere mentioning of wrong bus number does not absolve the respondent of the liability with which he is charged. This is a very old case. The police record was not available. Learned Counsel for the respondent was kind enough to give his file to the Court which has been placed on record. This must be borne in mind that the police record is coming from the possession of the respondent/accused himself. Registry is directed to place its photocopy on the record and return the file to the counsel for the respondent. A perusal of file clearly shows that it had come in the notice of the prosecution that the bus involved in the accident on 3rd October, 1979, bore No. DLP 5085 instead of DLP No. 5058. The statement of Hansal Rose, PW-2, was recorded on the same day. He clearly and specifically mentioned that the bus involved was bus No. 5085 route No. 304. Apart from his statement, there is a copy of application for post mortem wherein it is mentioned that bus No. DLP 5085, Route No. 304 was involved in the accident. There is also a brief death history dated 3rd October, 1979, where the number of the bus is mentioned as DLP 5085, Route No. 304.
8. The identity of the accused stands established by the following facts and circumstances. First of all, Hansal Rose, PW-2, and Bal Kishan, PW-3 identified the accused person in the court. They clearly and unequivocally stated that the accused was driving the above-said bus, "bearing No. DLP 5085". Their statements remain unrebutted on record. Even Bal Kishan, PW-3, was not confronted with the DD entry or the FIR during his cross-examination. None of the witnesses was confronted with their respective statements. No suggestion was given to them that the accident took place with bus No. 5058 and not with this bus.
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9. Moreover, the giving of wrong bus number does not cause any dent on the prosecution case. It was clearly, specifically and unequivocally stated that accident took place with the bus route No. 304. I have perused the DD entry, Ex.PW7/A. It clearly mentions bus No. DLP 5058, Route No. 304 was involved in the accident. Even if it wrongly mentions the bus number, the route number mentioned in it corroborates with the other versions, which are appearing on the file. Further, the route No. 304 is displayed and highlighted on the top of the bus. It is very easy to find out the route number even if there is some mistake in the bus number itself. It is also not understandable as to why the trial court tried to make light of these significant facts.
10. Moreover, the presence of the accused stands admitted. Trial court's judgment itself states that accused suggested to every witness that the accident did not take place with his bus rather it took place with another roadways bus which was coming behind his bus. The respondent does not pick up a conflict with his presence on the spot.
11. Again, the accused did not join the Test Identification Parade for the reasons best known to him. There is no evidence on record to show that the witnesses were inimical to the accused and they would in all probability identify him in the test identification parade. Why a relation or a constable would rope him falsely in this case"
12. At the time of recording of statement under Section 313 Cr.P.C., when the accused was questioned by the Magistrate, he refused to give reply to the questions and stated that he would give the reply in presence of his lawyer on the next date. His bizarre conduct at the time of accident as he did not stop and ran away from the spot and his conduct at the time of recording of his statement under Section 313 Cr.P.C. is difficult to fathom.
13. The mere fact that the accused was not arrested immediately cannot form a ground for his acquittal. ASI Raju Lal, PW-6, explained that the accused could not be traced out till 22nd October, 1979.
14. The respondent produced Kailash Chand, DW-1, in support of his case. He deposed that the accident took place with one roadways bus and the speed of that bus was very high. However, no reliance can be placed upon this witness. This witness was examined in the year 1985, that is, after six years of the occurrence. In his cross-examination, he stated that he is making this statement for the first time. He also deposed that he did not try to contact the Police to inform that the accident was caused by another bus. He admitted that he did not inform anybody regarding this accident. He also deposed that he did not know the accused, Des Raj. This goes beyond the pale of my comprehension, in case he did not know the accused, Des Raj, then how he could appear in the dock. Moreover he could not give the number of the bus which hit the deceased. He admitted that the Police did not reach the spot in his presence. It is clear that Kailash Chand, DW-1, is not a reliable witness. Such like evidence can be created at any time. As a matter of fact the defense has fizzled out faster than the morning fist.
15. It is clear that while driving the vehicle the accused was not keeping his eyes on road. This is surprising to note that he was not aware of the presence of deceased who was standing at the bus stand. The facts speak Page 2396 for themselves. His bizarre conduct of leaving the spot hurriedly further fortifies the prosecution's case. All the witnesses deposed in one voice that he was driving the bus at a high speed. In a recent authority reported in Prabhakaran v. State of Kerala , it was observed:
7. 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.
8. The distinction has been very aptly pointed out by Holloway J. in these words:
Culpable rashness is acting with the consciousness that the 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 the consciousness. 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 form the negligence of the civic duty of circumspection." (See In re: Nidamorti Nagabhusanam 7 Mad. H.C.R. 119).
16. In view of the discussion above, I find that the evidence produced by the prosecution is intensively strong. The case of prosecution is safely entrenched behind undeniable facts. I find that the judgment delivered by the trial court is erroneous. The evidence on record evinces the guilt of the respondent. I set aside the judgment delivered by the trial court and convict the accused under Sections 279 and 304A IPC.
17. Although it is true that the case is pending since the year 1979 and as such, the accused deserves a lenient view, yet on the other hand, the court cannot wink at the fact that the accused ran away from the spot without caring for the deceased. Keeping in view all the facts and circumstances, I sentence the accused/respondent to undergo RI for one year and to pay a fine of Rs. 1000/-, failing which he shall further undergo SI for one month. Accused is absent, the SHO concerned is directed to arrest the accused immediately for serving the above-said sentence. The accused is also given the benefit of Section 428 Cr.P.C., if any.
18. Criminal Appeal No. 194/1985 is accordingly allowed and disposed of.