Delhi District Court
State vs Arun Kumar on 25 January, 2024
IN THE COURT OF MR. VISHAL GOGNE:
SPECIAL JUDGE (PC ACT) CBI-24
(MPs/MLAs CASES), RADC
S.C. No.663/16
FIR No.690/11
U/s 304 IPC
PS Shakarpur
1. State
versus
1. Arun Kumar
S/o Shilender Singh
R/o Village B-695, Gali No.16,
Madanpur Khadar Extension,
Delhi
Date of Institution : 02.08.2014
Reserved for Judgment on : 18.11.2023
Judgment pronounced on : 25.01.2024
JUDGMENT
1. The accused has faced trial under sections 279 and 304 IPC.
2. The FIR (Ex. C1) in the present case was based upon the allegations reflected in the complaint dated 23.09.2011 (Ex. PW3/A) made by purported eye witness namely Rehman Akhtar (PW-3). The contents of the FIR are as under:
(i) The complainant stated that, being a resident of Laxmi Nagar, New Delhi, he was running a shop of readymade garments at Palika Bazar, Connaught Place, Delhi.
(ii) Further, that on 23.09.2011, he was present with his friend Amjad at about 5:10 pm on the service road in front of Samuday Bhawan, Ramesh Park when he noticed a Mahindra Champion FIR No.690/2011 State Vs. Arun Kumar Page No. of 1 /30 vehicle bearing registration No. DL 1LH 8821 approaching from the direction of Geeta Colony and proceeding towards the Laxmi Nagar chungi (toll barrier). This vehicle was stated to have been driven at fast speed and in a negligent manner.
(iii) The complainant alleged that the Mahindra Champion, driven at fast speed and in a negligent manner, hit a scooty bearing No.DL 7S BB 7599 travelling in front. The scooty was being driven by a girl and as the Mahindra Champion hit the scooty from behind, the girl and her two wheeler fell to the road.
The girl suffered a injury to her head and became unconscious at the spot.
(iv) The complainant asserted that he alongwith his friend apprehended the driver of the Mahindra Champion vehicle from the spot itself and his name was learnt to be Arun, S/o Shailender Singh while his address was found to be B-605, Gali No.3, Village Gazipur, Delhi.
(v) The complainant and other persons took the unconscious victim to Walia Nursing Home in a private vehicle. The victim was thereafter referred to LBS hospital after being given first aid by the said Nursing Home. She was, however, declared dead at LBS hospital.
(vi) It was the allegation of the complainant that the accident had been caused by the rash and high speed driving of the vehicle by the accused.
3. The initial investigation was conducted by SI Karamveer, who was accompanied to the place of occurrence by Const. Manjit. The investigation officer found the victim as having been declared 'brought dead' at LBS hospital. Since the father of the victim reached the hospital, she could be identified as Jaberia FIR No.690/2011 State Vs. Arun Kumar Page No. of 2 /30 Mehmood.
4. Eye witness Rehman was reportedly present at the hospital itself and his statement came to be recorded by the first investigating officer (SI Karamveer).
5. The FIR was initially registered under sections 279 and 304A IPC.
6. During the course of investigation, respective affidavits were furnished by complainant Rehman Akhtar and another eye witness namely Amjad wherein they alleged that the accused had not only hit his vehicle against the scooty driven by the victim but also run his vehicle over her stomach, thereby causing her death. The second investigating officer now got recorded statements of these witnesses under section 164 Cr. PC before the concerned Ld. Metropolitan Magistrate under section 304 IPC was consequently added to the investigation.
7. The chargesheet was filed under section 304 IPC.
8. Upon committal of the chargesheet to the court of sessions, charge was framed against the accused under sections 279 and 304 IPC in the following manner:
CHARGE I, Sanjay Garg, ASJ, KKD Courts do hereby charge Arun Kumar S/o Sh. Shilendra Singh as under:-
That on 23.09.11 at about 5.10 PM, in front of Samudai Bhawan, Pusta Road, Ramesh Park Laxmi Nagar, Delhi within the jurisdiction of PS Shakarpur you drove the Vehicle No.DL-1LH 8821 (Mahindra Champion) in a rash and negligent manner as to endanger human life and personal safety of others and thus you have thereby committed an offence punishable under Section 279 within the cognizance of this court.
Secondly, that on the aforesaid date, time and place you committed culpable homicide not amounting to murder and caused death of Javeria Mahmood D/o Sh. Mahmood Ali Khan and thus you have thereby committed an offence punishable under Section 304 IPC within the FIR No.690/2011 State Vs. Arun Kumar Page No. of 3 /30 cognizance of this court.
And I hereby direct that both of you be tried for the said offence.
(Sanjay Garg) ASJ-01(East)/KKD Courts Delhi/13.08.14 9 The accused pleaded not guilty to the above articles of charge.
Evidence for the Prosecution
10. The prosecution examined 13 witnesses in support of the allegations.
11. PW1 (Sahbaan Ali Khan) was the brother of the deceased who identified her dead body through statement Ex.PW1/A.
12. The Doctor who attended to the victim at LBS Hospital deposed as PW-2 to state that at 6:15 pm on 23.09.2011 one female was brought dead to the casualty with the alleged history of RTA. Her body was kept in the mortuary and referred to the forensic expert for postmortem. PW-2 recorded his findings on the MLC which was proved by him as Ex.PW2/A.
13. PW-10 (HC Hazari Lal), a DD writer, deposed that he was on duty from 4.00 pm to 12 midnight on 23.09.2011 and that at about 5.20 pm, an information was received from the Control Room regarding an accident at Shakarpur Road. It was also informed that the injured was lying unconscious. PW-10 recorded the information vide DD no. 75-B and produced the original DD Register before the court. The copy of DD No.75-B was proved as Ex.PW10/A. He further deposed that the said DD was marked to SI Karamvir and the copy of the DD was sent to him through Ct. Manjeet.
FIR No.690/2011 State Vs. Arun Kumar Page No. of 4 /30
14. PW-6 (HC Prem Pal) deposed that he was posted as a Duty Officer with the Central Motor Vehicle Accident Cell from 8 p.m. on 23.09.2011 to 8 a.m of 24.09.2011. At about 10:00 p.m, on receipt of information regarding fatal accident at Shakarpur and about registration of the case at PS Shakarupur, he recorded DD No. 35 which was proved by him as Ex.PW6/A. He further deposed that ASI Chandervir was assigned for inquiry of the same and left the Cell along with HC Rohtash.
15. PW-7 (Tasnimuddin Siddique) was the Government approved surveyor who inspected the vehicle involved in the incident. He stated that on 25.09.2011, upon the request of ASI Chandervir, CMVAI Cell Delhi, he had mechanically inspected Mahendra Champion load body, white colour, bearing registration no. DL-1LH-8821 and TVS Wego Scooty, white colour bearing registration no. DL-7SBB-7599. Further, that he had submitted his two detailed reports recording 'fresh damages' (upon the vehicles). These reports were proved by him as Ex.PW7/A and Ex.PW7/B respectively. PW-7 further stated that both vehicles were road worthy with damages having been sustained by both.
16. PW-9 (Anil Kumar) was the registered owner of the offending vehicle who deposed that he had obtained the said vehicle on superdari vide superdarinama (Ex.PW9/A). The vehicle itself was identified as Ex.P-1.
17. The two material witnesses, cited as eye witnesses, were complainant namely Rehman Akhtar (PW-3) and his friend namely Mohd. Amjad (PW-4). The court shall discuss the deposition of these witnesses in detail in the later part of the judgment. However, the substance of their statements may be FIR No.690/2011 State Vs. Arun Kumar Page No. of 5 /30 noticed.
18. PW-3 deposed that the Mahindra Champion vehicle driven by the accused struck the scooty driven by the victim and she consequently fell on the road. Also, that after the girl had fallen down on the road, the accused ran the said Mahindra Champion over her despite the fact that the road was quite wide.
19. PW-3 proved his original complaint as Ex. PW3/A, affidavit given to the DCP as Ex. PW3/C and his statement under section 164 Cr.PC as Ex. PW3/D. The site plan, stated to have been prepared by the police at his instance was Ex. PW3/B.
20. It was stated by PW-4 that the Mahindra vehicle was being driven in a very rash and negligent manner as well as fast speed.
Further, that it then struck the scooty from behind causing the girl driving the same to fall down on the road due to impact. Thereafter, the accused, who was identified as the driver of the Mahindra Champion again hit against the girl.
21. PW-4 proved his affidavit given to the DCP as Ex. PW4/A and his statement under section 164 Cr.PC as Ex. PW4/B.
22. PW-3 and PW-4 both deposed that they had apprehended the accused from the spot as his vehicle stopped after the incident. These witnesses identified the accused during the course of their deposition.
23. The statement of PW-3 during examination in chief is as under:
PW-3 Sh. Rehman Akhtar ON SA It is of the month of September'11, (Exact date I do not remember now), at around 5/5.30 p.m I was standing near Community Hall on Laxmi Nagar Road/Pushta Road with my friend Amzad who had come to meet me and I was standing over there talking to him. At that time I observed FIR No.690/2011 State Vs. Arun Kumar Page No. of 6 /30 that a scooty being driven by a girl was going towards Noida on the said road, ( I do not remember the number of said scooty now) and a Mahendra Champion bearing No. 8821, (I do not remember its full number now) which was following it struck the said scooty as a result of jerk given by the impact the girl that was driving the scooty got jumped off and fell down on the road. After the girl had fallen down on the road the driver of the said Mahendra Champion ran over the said vehicle despite the fact that road was quite wide. I and my friend rushed towards the said vehicle and the driver after running over the said vehicle over the girl tried to flee away in the vehicle after taking the cut but as the movement of traffic has also slowed down due to the accident he could not run away and was apprehended by both of us. Driver of the said Mahendra Champion is present in Court today (correctly identified).
24. PW-4 deposed during his examination in chief as under:
PW-4 Mohd. Amjad ON SA On 23.09.11 at about 5-5.15 PM I along with my frined Rehman was standing on the footpath near Samudai Bhawan, Laxmi Nagar, Delhi. Suddenly I noticed that one scooty of white colour bearing No. DL-7S-BB-7599 coming from the side of Geeta Colony and moving towards Laxmi Nagar Chungi and one Mahindra Champion of off white bearing No. DL-1- - 8821( I do not remember remaining two digits of Mahindra Champion) and at a distance of about 15 steps from us, I saw the Mahindra was being driven in very rash and negligent manner and in a fast speed struck the Scooty from behind. the scooty was being driven by the girl who fell down on the road due to impact of the Mahindra Champion. The Scooty also fell on one side. Thereafter the driver of the Mahindra Champion again hit against the girl (now deceased) who was lying on the road and thereafter Mahindra Champion stopped. I along with my friend Reham ran towards other side of the road i.e. the place of the incident and apprehended the driver of Mahindra Champion i.e. accused Arun Kumar present in the court today (correctly identified by the witness).
25. The doctor (Dr. B.N. Acharya) who performed the post mortem upon the deceased deposed as PW-8. The post mortem FIR No.690/2011 State Vs. Arun Kumar Page No. of 7 /30 report was proved as Ex.PW8/A. He detailed the following injuries on the body of the deceased as observed by him on external examination :
1) CLW on left frontal region 6 cm x 1 cm x bone deep.
2) CLW on left frontal region 3 cm x 1 cm x bone deep.
3) Multiple abrasion on left and right side of face and at right forehead and left ear.
4) Black eye. 5) Abrasion on both sides of abdomen 47 cm x 20 cm. 26. PW-8 described the observations upon internal examination to be: 1) Liver - grossly lacerated. 2) Abdomen was full of blood (about 2 ltrs). 3) Head - blood underneath scalp.
27. The cause of death was recorded by PW-8 as :
The death was due to haemorragic shock consequent to liver laceration. All the injuries were ante mortem in nature and were cause by vehicular accident as alleged.
28. The two police officials who first reached the place of occurrence were Ct. Manjeet Singh (PW-5) and SI Karamvir Singh (PW-12).
29. These two witnesses similarly stated that on 23.09.2011, when they were posted at Police Station Shakarpur, they had joined the investigation of the present case and reached the place of incident viz Pushta Road, in front of Community Centre, Ramesh Park. PW-12 specified that they had left for the spot FIR No.690/2011 State Vs. Arun Kumar Page No. of 8 /30 after receiving DD no. 75 B. These police officials noticed one TVS Scooty bearing registration no.DL7SBB 7599 and a Mahindra Champion bearing registration no. DL1LH 8821 present at the spot. Further, that the PCR officials were present and produced the driver of one of the vehicles, of the make Mahindra Champion, before them. The said driver was identified as Arun Kumar (the present accused). It was learnt that the injured person had been shifted to the hospital.
30. PW-12 deposed that he left PW-5 at the spot and proceeded to Walia Nursing Home where he came to know that the injured had been shifted to LBS Hospital after being given first aid.
31. At LBS hospital, PW-12 had collected the MLC of the deceased which recorded the observation 'brought dead'. The dead body had already been shifted to the mortuary at LBS hospital.
32. PW-12 next stated that at the hospital, an eye witness namely Rehman met him and his statement was recorded by PW-
33. In the meanwhile, a person named Mehmood, the father of the deceased, namely Jaberia Mehmood reached the hospital. He made endorsement on the statement of Rehman and prepared the rukka (Ex.PW12/A). Thereafter, as deposed by PW-12, he returned to the spot and handed over the rukka to Ct. Manjit who then took the same to PS Shakarpur for registration of the FIR.
Rehman is also stated to then have reached the spot. PW-12 next proved the site plan as Ex.PW3/D. It was stated by PW-12 that he made a request, in the rukka itself, for the investigation to be handed over to the CMVAI Cell, East Distt. Ct. Manjit (PW-5) then returned to the spot and handed over the rukka and copy of FIR No.690/2011 State Vs. Arun Kumar Page No. of 9 /30 the FIR to PW-12.
34. The TVS scooty and Mahindra Champion were seized through seizure memoranda Ex.PW5/A and Ex.PW5/B. At this stage, ASI Chanderveer from CMVAI Cell reached the spot. PW12 now handed over accused Arun Kumar and the documents to ASI Chanderveer. ASI Chanderveer proceeded to record the statement of PW-12. Accused Arun Kumar was identified in court by PW-12.
35. ASI Rohtash Kumar i.e. (PW-11), who was accompanied by ASI Chanderveer Singh to the place of incident on 23.09.2011, deposed that SI Karamveer had produced accused Arun Kumar before him along with the Scooty and Mahindra Champion in question as well as the documents relating to the investigation of the present FIR. He deposed that as the investigating officer, ASI Chanderveer Singh had recorded the statement of SI Karamveer and Ct. Manjit Singh. Further, that upon the identification by public witness Rehman, present at the spot, the accused had been arrested qua offences punishable under Sections 279 and 304-A IPC. The arrest memo of the accused was identified as Ex.PW3/DA by PW-11 who also proved the seizure of the driving licence as well as documents of the offending vehicle viz. Mahindra Champion as Ex.PW11/A.
36. Certain documents came to be identified on behalf of the accused by way of his statement by his counsel under Section 294 CrPC. These documents were the FIR itself and the proceedings under Section 164 CrPC dated 29.02.2012.
37. The last investigating officer was Inspector Vijay Nagar who deposed as PW-13 to state that on 19.06.2012, when he was posted as an Inspector in DIU, Distt. East, the investigation of the FIR No.690/2011 State Vs. Arun Kumar Page No. of 10 /30 present case was transferred to DIU and was assigned to him. Further, that most of the investigation had already been completed by then. PW-13 stated that on perusal of the case file, it was revealed that witnesses Amjad and Rehman had given affidavits regarding their statements not having been recorded properly. The statements of both witnesses were thus got recorded under Section 164 Cr.PC. PW-13 deposed that Section 304 IPC was added in the case after discussion with senior officers whereas the case had initially been registered under Sections 279/304 A IPC. Also, that accused Arun was formally arrested in this case after addition of Section 304 IPC.
38. A subsequent opinion given by PW-8 was also proved by him as Ex.PW8/B. This opinion was given upon the application of the investigating officer. The opinion was as under:
"It is to state that manner of death in subject matter after detailed/thorough investigation and circumstances leasing to the death of deceased. In the present case, the cause of death is due to haemorragic shock from liver laceration. It is caused by blunt forced impact possible by RTA as alleged. Nature of impact by fall or otherwise is to be confirmed by through investigation"
Statement under Section 313 Cr.PC
39. When the incriminating evidence was projected to the accused under Section 313 Cr.PC, he denied the same and maintained his innocence. He stated that he was not present at the spot at the time of occurrence of the accident in question. Further, that the case had been falsely instituted against him for purpose of a claim before the MACT. The accused lastly stated that the police had lifted him from his house on the assertion that he was required for general verification and that the present case had later been falsely imposed upon him.
FIR No.690/2011 State Vs. Arun Kumar Page No. of 11 /30 Evidence on behalf of the accused
40. The accused led evidence through three witnesses. His wife (Pooja) and father (Shailender Singh) deposed as DW-1 and DW-2 whereas the accused himself deposed as DW-3. The gist of the statements of these witnesses was that the accused remained at his residence on the date of incident on account of a religious ceremony, described as Satya Narayan Katha. While the deposition of these witnesses shall be discussed at length in the following part of this judgment, the court would summarise their testimony as essentially claiming that the accused remained at his residence from late afternoon (about 3:00 p.m.) till the night (8:00 p.m.) on the date of incident. Also, that the police persons had taken him for questioning from his residence. Final Arguments
41. During the course of final arguments, the Ld. Prosecutor relied upon the deposition of the two eye witnesses namely Rehman Akhtar (PW-3) and Mohd. Amjad (PW-4) to emphasis that they had cited the act of the accused in not only hitting the Scooty of the victim with the vehicle driven by him (Mahindra Champion) but also specified that after the girl had fallen to the road, the offending vehicle ran over her despite the road being quite wide. The prosecutor referred to the affidavits as well as the statements of these two witnesses under Section 164 CrPC as reaffirming this version. It was argued by the prosecutor that the manner of driving of the accused could not be characterised as being limited to rash driving but it was rather an incident of homicide with the knowledge that the act of the accused was of such dangerous nature that it was likely to cause death.
FIR No.690/2011 State Vs. Arun Kumar Page No. of 12 /30
42. The prosecutor maintained that the subsequent act of the accused in running his vehicle over the victim was neither accidental nor a part of the same incident which constituted the collision between the two vehicles. It was agitated that the act of the accused was constitutive of the ingredients of Section 299 IPC so as to be culpable under Section 304 IPC.
43. The arrest of the accused from the place of incident was further represented as completing the chain of evidence available from the time of incident itself. The prosecutor further relied upon the inspection reports of the two vehicles (Ex.PW7/A and Ex.PW7/B) to submit that the damage reflected on the same was commensurate with the great force with which the accused hit his vehicle against the Scooty of the victim. The State thus prayed for a finding of guilty under Sections 279 and 304 IPC.
44. The Ld. Prosecutor read the postmortem report Ex.PW8/A to cite external injuries including "abrasion on both sides of abdomen 47x20 cm" as well as internal injuries including "Liver- grossly lacerated" to submit that these depicted the tyre of the Mahindra Champion having run over the stomach of the victim so as to cause severe injuries to her liver. The postmortem report was also cited as concluding that the cause of death was due to haemorrhagic shock from liver laceration and which was caused by blunt force impact 'possible by RTA'. The prosecutor thus maintained that the deposition of PW-3 and PW-4 was corroborated by the postmortem report so as to establish that the accused had knowingly run his vehicle over the victim as she lay on the road upon the impact of the first collision when the Mahindra Champion hit her scooty from behind.
FIR No.690/2011 State Vs. Arun Kumar Page No. of 13 /30
45. Additional arguments were advanced on behalf of the counsel for the complainant. While reiterating the submissions made by the Ld. Prosecutor, the counsel for the complainant, in order to rebut the plea of alibi raised by the accused, also relied on the following two decisions rendered by the Hon'ble Supreme Court :
i). Sunil Kumar & Another v. State of Haryana (2012) 6 Supreme Court Cases 204
ii). Shaikh Sattar v. State of Maharashtra (2010) 8 Supreme Court Cases 430.
46. It was contended by the Ld. Counsel for the complainant that the assertion of DW-1 to DW-3 regarding the accused having rather been present at his house at the time of incident was untenable as his presence at the place of occurrence had been assertively proved by the two public witnesses. The counsel also relied on the accounts given by the police officials to submit that these officials had found the accused to have already been apprehended by PW-3 and PW-4. It was lastly submitted that all witnesses for the accused were interested witnesses and no independent witness to the purported religious ceremony, at the house of the accused on the date of incident, had been examined as a witness.
47. In defence, the Ld. Counsel for the accused agitated that allegations relating to a subsequent at act of the accused in running over the victim were an afterthought which belatedly came on record through purported affidavits dated 28.11.2011 submitted to the DCP by the two eye witnesses namely Rehman and Amjad (PW-3 and PW-4 respectively). The delay between FIR No.690/2011 State Vs. Arun Kumar Page No. of 14 /30 the date of incident viz. 23.09.2011 and the date when these affidavits were prepared was cited as indication of contrived improvement in the version of the witnesses. The counsel further submitted that the statements under Section 164 CrPC had been recorded even later, on 29.02.2012. In sum, the counsel was of the submission that the witnesses, at first instance, as reflected in the complaint (Ex.PW3/A) made by Rehman (PW-3), had only projected a case of collision between the Mahindra Champion and Scooty. The latter versions of the eye witnesses were represented, by the defence counsel, as an outcome of intervention by the family members of the deceased.
48. The counsel for the accused next relied upon the deposition of the three defence witnesses viz DW-1 to DW-3 to agitate that the accused had remained throughout at his own residence on the date of incident, thereby ruling out any possibility of him driving the Mahindra Champion involved in the accident.
49. It was contended by the counsel, with reference to the medical opinion regarding the cause of death, that the postmortem report (Ex.PW8/A) did not record any indication of injuries in the nature of fractures of the ribs so as to be suggestive of the tyres of the Mahindra Champion having run over the victim. Also, that the subsequent opinion (Ex.PW8/B) sought from the same doctor (PW-8) who had conducted the postmortem, did not elicit any unequivocal finding regarding the wheel of the offending vehicle having run over the body of the victim.
50. In response to the assertion of the prosecutor regarding the subsequent medical opinion being supportive of causation of FIR No.690/2011 State Vs. Arun Kumar Page No. of 15 /30 injuries by a road traffic accident (RTA), it was asserted by the Ld. Counsel for the accused that the doctor had only expressed such a possibility and not been definitive in this regard. Discussion and Analysis
51. The court finds that the outcome of trial is contingent upon proof of three facts in issue as under :
i). Proof of the accused as the driver of the Mahindra Champion vehicle at the time of incident.
ii). Manner of commission of the incident.
iii). Nexus of the incident with the nature of injuries and cause of death of the victim.
Proof of the accused as the driver of the Mahindra Champion vehicle at the time of incident.
52. The principal witnesses to the incident were two public persons namely Rehman Akhtar and Mohd. Amjad (PW-3 and PW-4 respectively). These witnesses deposed that they were present at the place of incident when the vehicle driven by the accused hit the scooty driven by the victim. While the aspect of improvement in their multiple statements shall be discussed at length in the subsequent part of the judgment (relating to the manner of commission of the incident), it is quite the commonality between the successive versions (FIR, affidavits and statements under section 164 Cr.PC) of these witnesses that the accused has been identified as the driver of Mahindra Champion at the time of incident.
53. PW-3 specified that he had seen the Mahindra Champion driven at a fast speed, striking the scooty driven by the girl from behind. He also deposed that he, along with PW-4, had caught the accused as he tried to flee. Further, that they had handed over FIR No.690/2011 State Vs. Arun Kumar Page No. of 16 /30 the accused to the police persons who reached the spot.
54. Similarly, PW-4 stated that he had noticed the Mahindra Champion, off white in colour, hitting the scooty driven by the girl. He corroborated PW-3 in stating that they had together apprehended the accused as he stopped the Mahindra Champion vehicle. Further, that they had handed over the accused to the police officials.
55. This account of PW-3 and PW-4 found confirmation in the statement of two police officials who reached the spot namely SI Karamvir (PW-12/the first IO) and Ct. Manjit Singh (PW-5). Both of them stated that when they reached the Pushta Road near Samuday Bhawan, Ramesh Park, PCR officials were already present and had produced accused Arun Kumar as the driver of the Mahindra Champion. Both witnesses also stated that they had found scooty bearing no. DL7SBB7599 along with Mahindra Champion no. DL1 LH8821 present at the spot.
56. PW-12 further stated that witness Rehman was present at the spot.
57. Thus, the evidence reflects two public witnesses (PW-3 and PW-4) and two police officials (PW-5 and PW-12) referring to the presence of the accused at the place of incident. There is no doubt that the accused, after having been seen (by PW-3 and PW-4) driving the Mahindra Champion and hitting the scooty of the victim, was apprehended from the spot and handed over to two police men (PW-5 and PW-12).
58. The opposing version viz the plea of alibi raised by the three defence witnesses (DW1 to DW3) is liable to be seen as a self serving account. While the wife and father (DW-1 and DW-
2) of the accused (DW-3) similarly deposed that the accused had FIR No.690/2011 State Vs. Arun Kumar Page No. of 17 /30 been at his own residence throughout the day on the date of incident, no independent witness to be purported religious ceremony was examined in support. Even the priest who conducted the purported Satyanarayan Katha was not named or examined as a witness. The court is of the determination that the accused laid out the plea of alibi as a desperate attempt to disprove his presence at the place of incident when it occurred. The defence version is disbelieved.
59. The court concludes on the standard of proof beyond reasonable doubt that the accused was apprehended at the place of incident as the person who was driving the Mahindra Champion at the time of incident.
Manner of commission of the incident
60. Since the court has concluded that the accused was indeed apprehended upon being stopped after the accident, the causation of the accident by him is not a doubt. The critical area for appraisal, however, is whether the accident involves culpability. The twin articles of charge are sections 279 and 304 IPC. Considering the rival submissions regarding the manner of the incident, culpability is required to be seen in the alternative possibilities relating to Sections 304 IPC and Section 304 A IPC. The manner in which the collision occurred between the vehicle of the accused and the vehicle of the victim is intrinsic to the above determination.
61. The court may clarify regarding the first alternative viz Section 304 IPC that the exercise is to decipher whether the allegations lie within the ambit of Section 304 Part II IPC inter alia the act having been done with the knowledge that it was likely to cause death. Since it is neither the allegation of the FIR No.690/2011 State Vs. Arun Kumar Page No. of 18 /30 prosecution nor a reasonable prospect that the accused had an intention to kill the scooty driver, Section 304 Part I IPC is not in the contemplation of the court.
62. The preliminary endeavor of the court is to determine the sequence of events which constituted the charge against the accused. The prosecution has laid out the construction of events on the premise that there were two consecutive and clearly discernible acts of the accused which together establish his culpability for commission of the offence punishable under Section 304 Part II IPC. The first act was his speeding Mahindra Champion vehicle hitting the scooty from behind whereupon the victim fell to the road. The accused is represented as secondly having driven his vehicle over the person of the victim so as to cause a crushing injury to her liver which became the cause of death as reflected in the postmortem report (Ex.PW8/A). It is the second act which the prosecution canvasses as being constitutive of the ingredients of Section 304 part 2 IPC. The Ld. Prosecutor had submitted that since the accused willingly ran the tyre of his vehicle over the body of the victim despite her already being helpless, he could have done so only with the knowledge that it would likely cause her death.
63. The alternate construction of events, though not admitted by the accused, is that the entire incident was one transaction where the accused hit the scooty and also ran over her body in his effort to escape.
64. Commenting first on the initial aspect viz the first act of the Mahindra Champion hitting the scooty from behind, this allegation stands proved from the deposition of PW-3 and PW-4, seen in the most minimum form and bereft of improvements FIR No.690/2011 State Vs. Arun Kumar Page No. of 19 /30 which are reflected in their affidavits and statements under Section 164 Cr.PC.
65. In the initial complaint (Ex.PW3/A), PW-3 had stated that the Mahindra Champion vehicle was being driven in a rash and negligent manner as well as high speed. The relevant excerpt from Ex. PW3/A is reproduced below in verbatim.
एक महहनदरर चचमममयन जजसकर न०.DL-1LH 8821 हच कर डड रइवर अमनन गरडन कक गफलत लरमरवरहन व ततज रफतररन सत चलरतर हह अर अरयर अअर अरगत चल रहन सककटन न० DL 7S BB 7599 कक जजसत एक लडकक चलर रहन थन मनछत सत टककर मरर दन। टककर लगनत लडकक व सककटन सडक मर हगर गयन और उसकत जसर मम चकट आयन लडकक मअकत मर बतहकश हक गयन। महहनदरर चचमममयन कत डड रइवर कक ममनत अमनत दकसत कक मदद सत मअकत मर हन मकड जलयर जजसकर नरम मतर बरद दरयरफत अरण मकत शचलतनद जससह मतर बन-605, गलन न०.3, गरजनमकर गरगव हदलन मरलकम हह अर। बतहकश लडकक कक हमनत एक परइवतट गरडन सत वरजलयर नरजससग हकम हभजवर हदयर।
66. It is apparent from this excerpt and the reiterative accounts given by PW-3 and PW-4 before the court that the vehicle of the accused was being driven at high speed and hit the scooty from behind.
67. Two additional strands of evidence corroborate the above account.
68. Firstly, the mechanical inspection reports of the Mahindra Champion and the Scooty (Ex.PW7/A and Ex. PW7/B respectively) reflect damage to the front number plate and steel guard of the Mahindra Champion as well as damage to the rear number plate of the scooty. This accidental state of the two vehicles is commensurate with the front side of the Mahindra Champion having hit the rear side of the scooty.
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69. Other damage to the scooty is reflected as having been caused to the front mud guard, front head light, left side lever and left side engine cover of the scooty. Dents were also visible on the front side of the scooty. It therefore additionally becomes evident that upon being hit from behind, the scooty fell to the road, thereby suffering the damage in question.
70. Secondly, the postmortem report (Ex.PW8/A) which recorded both external and internal injuries, reflects the following external injuries to the face/head of the victim:
i). CLW (contused lacerated wound) on the left frontal region.
ii). Multiple abrasion on the left and right side of the back along with similar abrasions to the right forehead and left ear.
iii). Black eye.
71. These injuries are manifestly commensurate with a person falling on the road with force after being hit by a heavy vehicle from behind.
72. The court may highlight that PW-3 and PW-4 had both stated that the girl had fallen to the road due to the impact of the collusion. Infact, PW-3 had stated that on account of the jerk given by the impact, the girl 'got jumped off' the scooty and fell down on the road.
73. Besides, the site plan (Ex.PW3/B) reflects a rather wide road and the witnesses have not expressed any contributory act of the victim which prevented the accused from avoiding the collision. The manner of driving does get established as rash and negligent.
74. The court concludes, upon a combined reading of the statements of PW-3 and PW4, the reports of mechanical FIR No.690/2011 State Vs. Arun Kumar Page No. of 21 /30 inspection of the two vehicles as well as the postmortem report that the first alleged act of the accused viz hitting the scooty at high speed, stands proved beyond any measure of doubt. It also stands proved that the said act of the accused was rash (on account of the speed of his vehicle) and negligent (for reason of failing to avoid the scooty).
75. The above description satisfies the ingredients of the charge under section 279 IPC which contemplates culpability in the event of a person driving any vehicle 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.
76. Since the vehicle was being driven by the accused at high speed on a road (public way), such an act would necessarily have placed human life in danger. Such an outcome did infact fructify when the Mahindra Champion driven by him hit the scooty driven by victim Jaberia Mehmood and caused her death.
77. The more elemental exercise qua the charge under Section 304 IPC is whether any subsequent act of the accused viz the alleged running over (of the victim) stands proved and is also in fulfillment of the ingredients of Section 304 Part II IPC.
78. Before proceeding further, the court reiterates that till this stage of the judgment, the court has relied upon the original version of PW-3 as reflected in the complaint Ex.PW3/A and also repeated by him as well as PW-4 in their respective examinations in chief. In other words, the allegations of the Mahindra Champion hitting the Scooty at high speed from behind are the unadulterated version common to all statements made by these witnesses. This core of their deposition found repetition in the original complaint, their affidavits, their statements under Section FIR No.690/2011 State Vs. Arun Kumar Page No. of 22 /30 164 CrPC and also their deposition in the court. Yet, the journey of the judgment hereon is contingent on appraisal of improved accounts and later statements.
79. To elaborate, in his statement (Ex. PW3/A) made at first instance by complainant Rehman Akhtar (PW-3), he did not cite any consequential act of the accused in running over the victim despite there being space on the road to avoid hitting her. In the affidavit of PW-3 dated 28.11.2011 (Ex.PW3/C) and the affidavit (Ex. PW4/A), also of the same date, of the other eye witness namely Amjad, PW-4, it was claimed that the accused had, instead of taking the victim to the hospital after she had fallen to the road, again hit her on the stomach causing her to lose consciousness and to expire on the way to the hospital.
80. The court finds the circumstances as well as the content of the two affidavits to be mired in suspicion. Firstly, these affidavits were prepared more than two months after the date of incident. It remained entirely unexplained as to what or who prodded the two eye witnesses to create such affidavits. After all, an affidavit is not a complaint which can be conveniently written even by hand and be given to the police agencies. An affidavit, especially one on stamp paper as is the case with the two affidavits in question, can be prepared only after stamp papers are purchased and an oath is sworn by the deponent. The affidavit is then notarized, as was done in the present affidavits. It was therefore incumbent on the prosecution to explain the circumstances of preparation of these affidavits.
81. The court is also mindful of the general context of witnesses being disinterested in joining police investigation. In this scenario, for the present witnesses to have been proactive to FIR No.690/2011 State Vs. Arun Kumar Page No. of 23 /30 the extent of deposing on affidavit is beyond easy understanding. These affidavits were apparently created for being used as evidence.
82. The only light which came to be shed on these affidavits was from PW-13 (ACP Vijay Nagar) who deposed that while being posted as an Inspector in the DIU (District investigation Unit) East, the present investigation had been assigned to him on 19.06.2012. Further, that the investigation had already been completed by then. PW-13 stated that it was revealed only upon perusal of the case file that witnesses Rehman and Amjad had given affidavits. Consequently, PW-13 got statements from them recorded before the Magistrate under Section 164 Cr.PC. He also deposed that Section 304 IPC was thereafter added to the investigation. He stated that since the case was originally registered under Sections 279/304 A IPC, the accused was formally arrested after Section 304 IPC was added to investigation.
83. The version of the eye witnesses, when cross examined by the accused, was that these affidavits were volitional. While PW- 3 stated that no one had pressurized him to execute the said affidavit and that the stamp papers had been purchased from Patiala House Courts on 23.11.2011, he denied that the affidavit was prepared by the father of the deceased. PW-4 also stated that the affidavit had been prepared at Patiala House Courts. He denied that the same was prepared by the father of the deceased.
84. The court finds the authorship of the affidavits to be in doubt as is the purported free will of the witnesses in so deposing. On ordinary standards of prudence, it defies explanation as to why the complainant (PW-3) and the other eye witness (PW-4) failed FIR No.690/2011 State Vs. Arun Kumar Page No. of 24 /30 to record the additional allegations, regarding the accused running his vehicle over the victim, in their initial statement. This purported aggravated conduct of the accused, if it all true, was too conspicuous to have been overlooked in being related to the police.
85. While the court is cognizant that statements made by witnesses to the police may not be always recorded in full detail of the incident, there is no presumption either that police officials would deliberately omit any part of the material allegations. Each passing day between the initial statement and a further statement does create room for improvement or embellishment. Thus, the affidavits of the two eye witnesses are not free from similar aspersion.
86. To compound matters further, even the statements of these witnesses under Section 164 Cr.PC were not recorded immediately after the date when these affidavits were prepared. Whereas the affidavits are dated 28.11.2011, the statements under Section 164 Cr.PC were recorded after three months viz on 29.02.2012. These three months were also time available to the witnesses for reflection and improvement. The statements under Section 164 Cr.PC were neither in continuity nor in consonance with the original statement of PW-3.
87. Considering the time lapse of two months between the original statement dated 23.09.2011 (Ex.PW3/A) and the affidavits dated 28.11.2011 (Ex.PW3/C and Ex.PW4/A) as well as the further delay of three months till the statements dated 29.02.2012 under Section 164 Cr.PC, the court is not inclined to grant credibility to the latter two documents (affidavits and statements under Section 164 Cr.PC).
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88. It is the settled principle of law relating to interpretation of evidence and appraisal of competing versions that the benefit of rival accounts must accrue to the accused. In this understanding, the court favours only the initial statement of PW-3, as reiterated by him and PW-4 in court, as the essence and unblemished account of events constituting the incident. The prosecution has established only that the accused hit the victim from behind at high speed. The belief of the court in the deposition of PW-3 and PW-4 does not extend to acceptance of an aggravated act of the accused in running over the victim so as to prove his knowledge of the likelihood of death (of the victim) within the meaning of Section 299 IPC punishable under Section 304 Part II IPC.
89. Since the prosecution has established the vehicle driven by the accused as being at high speed when it hit the scooty driven by the victim, this first and only believable part of the allegations keeps the culpability of the accused confined to the contours of Sections 279 and 304 A IPC.
90. The court must, however, visit the medical evidence to detect whether any other conclusion is plausible. Nexus of the incident with the nature of injuries and cause of death of the victim
91. Now, the cause of death recorded in the postmortem report (Ex.PW8/A) was hemorrhagic shock on account of liver laceration. The external injuries did also include an abrasion to both sides of the abdomen of the victim. Yet, these two findings do not constitute definitive proof that the liver of the victim was lacerated upon a tyre having run over her abdomen. Several omissions in investigation stand out from the record.
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92. Firstly, neither the size of the tyre of the Mahindra Champion nor its tread were recorded in the mechanical inspection report (Ex.PW7/A) of the said vehicle. The mechanical Inspector (PW-7) did not reveal any such observation in his examination in chief either. Consequently, the abrasion on the abdomen and the laceration of the liver are not proved to have been caused by the act of the accused in running the vehicle over the victim. Since the victim had fallen to the ground with great force and had other injuries on her person, the cause of the abrasions and the laceration of the liver could equally be ascribed to such violent effect when she first fell to the road.
93. The second aspect of note is that the postmortem examination does not record any evidence of fractures to the ribs or pelvic bones and does not reveal the laceration of any other internal organ. If the tyre of a medium sized vehicle had indeed run over the belly of the victim, such fractures and crushing of other body organs would have been a normal outcome. Yet, the internal examination recorded in the postmortem report found no such laceration to the stomach, small intestine, large intestine, spleen or kidneys.
94. No fractures of the ribs or abdominal area are reflected either in the postmortem report. This circumstance too points to the possibility that the injuries to the liver and abrasions to the abdomen were not caused by the tyre of the vehicle having run over the stomach of the victim.
95. Even the reliance placed by the Ld. Prosecutor on the subsequent medical opinion, rendered by PW-8, was misplaced. This opinion (Ex.PW8/B) was in reply to the query from the IO regarding the injuries being caused by the running over of the FIR No.690/2011 State Vs. Arun Kumar Page No. of 27 /30 offending vehicle on the body of the victim. PW-8 only stated in his opinion that the liver laceration was caused by blunt force impact "possible by RTA". PW-8, however, clarified that the nature of impact by fall or otherwise was to be confirmed by thorough investigation.
96. The court finds that PW-8 did not certify the theory of running over as the sole possibility and pointed to other facets of investigation.
97. These other aspects of investigation in the present case were nothing except the version of PW-3 and PW-4. The court has already recorded the finding that it is only the original statement of PW-3 (as reiterated by PW-4) which is worthy of belief inter alia the accused having hit the vehicle of the victim in a rash and negligent manner within the meaning of Section 304 A IPC (as well as section 279 IPC).
98. The court concludes that the nature of injuries and cause of death of the victim are not indicative, in a stand alone manner, of any aggravated conduct of the accused in causing the death of the victim by intentionally or knowingly running his vehicle over the victim.
Section 304 IPC and section 304A IPC
99. Since the charge in the present trial was framed under section 304 IPC (apart from the charge under section 279 IPC), the distinction between the ingredients of Section 304 A IPC and Section 304 IPC, in case of road traffic accidents may be explained with reference to the decision of the Hon'ble Supreme Court in State vs Sanjeev Nanda dated 03.08.2012 in Criminal Appeal No. 1168/2012. The relevant excerpts from the decision are reproduced below:
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44. First we will examine the scope of section 304A of the IPC which reads as follows:
"304A. 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."
On reading the above mentioned provision, the following requirements must be satisfied before applying this section:
(i) Death must have been caused by the accused;
(ii) Death caused by rash or negligent act;
(iii) Rash and negligent act must not amount to culpable homicide.
Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide not amounting to murder under Section 299 or murder under Section 300. Section 304A excludes all the ingredients of Section 299 or Section 300.
.......
46. Section 299 of the IPC defines culpable homicide as an act of causing death (i) with the intention of causing death; (ii) with the intention of causing some bodily injury as is likely to cause death; and (iii) with the knowledge that such act is likely to cause death.
The first and second clauses of the section refer to intention apart from knowledge and the third clause refers to knowledge apart from intention. "Intention" and "knowledge" postulate the existence of positive mental attitude. The expression 'knowledge' referred to in section 299 and section 300 is the personal knowledge of the person who does the act. To make out an offence punishable under Section 304(II) of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew such act of his is likely to cause death.
47. Section 304A, as already indicated, carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide not amounting to murder under Section 299 or murder under Section 300. The scope of the above FIR No.690/2011 State Vs. Arun Kumar Page No. of 29 /30 mentioned provisions came up for consideration before this court in the judgment of Naresh Giri v. State of M.P. [(2008) 1 SCC 791]; wherein this court held as follows:
"Section 304A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304A."
100. In the present facts, the prosecution has succeeded in establishing that the accused did drive his vehicle in a rash and negligent manner which endangered human life and thereby caused the death of the victim. Yet, the requisite knowledge, in the contemplation of section 304 Part II IPC, could not be proved. The offence is evidently outside the range of Section 299 IPC. The allegations are thus supported by the evidence only to the extent of the ingredients of Section 304 A IPC and not aggravated to the level of satisfying Section 304 IPC.
101. The accused is liable to be convicted with reference to section 304A IPC and not 304 IPC.
102. Accused Arun Kumar is convicted under sections 279 and 304A IPC.
Dictated and announced in open Court
on 25th January, 2024 (Vishal Gogne)
Special Judge (PC Act) CBI-24
(MPs/MLAs Cases), RADC
New Delhi/
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