Delhi District Court
State vs . Gautam Kumar on 28 August, 2019
1
IN THE COURT OF MS. RICHA SHARMA METROPOLITAN
MAGISTRATE ROHINI COURTS, DELHI
FIR No. 456/11
U/s 279/304A IPC
PS: KNK Marg
State vs. Gautam Kumar
Date of Institution of case:23.03.2012
Date of Judgment reserved: 28.08.2019
Date on which Judgment pronounced:28.08.2019
JUDGMENT
Unique ID no. : 5282820/16
Date of Commission : 11.11.2011
of offence
Name of the : HC Chatar Singh
complainant
Name and address of : Gautam Kumar
the accused persons G5/164, Ground Floor, Sector - 16, Rohini,
Delhi.
Offence complained : 279/304A IPC
of
Plea of accused : Not guilty
Final Order : Convicted
BRIEF FACTS OF THE CASE:
1. The case of the prosecution shorn of unnecessary details is that on 11.11.2011, at about 7.40 AM at E1 & AB divider road, near government FIR NO. 456/11 State Vs. Gautam Kumar 1 of 18 2 school, Sector16, Rohini, Delhi within the jurisdiction of PS KNK Marg, accused was found driving a Bolaro car bearing registration no. DL8C NA1844, in a manner so rash and negligent so as to endanger human life and personal safety of others and on the said date, time and place, while driving the above said vehicle in above said manner, accused struck the same against one motorcycle bearing no. DL8SAR9404, which was being driven by Rajat Kumar, who sustained injuries and succumbed to injuries thereafter and thereby accused caused the death of Rajat Kumar not amounting to culpable homicide. Thereafter, upon investigation, statements of witnesses were recorded and an FIR was registered against the accused.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [hereinafter to be referred as Cr.PC. for brevity]. The accused was arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C., was prepared against the above named accused and challan was presented in the Court.
3. Copies of challan and relevant documents were supplied to the accused free of costs as envisaged under Section 207 of Cr.P.C.
Charge
4. A prima facie case under Sections 279 and 304A IPC, was found to be made out against the accused. Notice was framed upon the accused FIR NO. 456/11 State Vs. Gautam Kumar 2 of 18 3 accordingly, on 13.09.2012. The accused pleaded not guilty and claimed trial.
List of witnesses and documents proved
5. In order to prove its case, prosecution examined following witnesses and produced the following documents in its documentary evidence :
Sl PW No. Name Document proved Ex. No.
No.
1. PW1 HC Ravinder Copy of FIR and Ex. PW1/A
Kumar original rukka
Ex. PW 1/B
2. PW2 Sh. Vijay Kumar Statement of Ex.PW2/A
identification of
dead body
Receipt regarding Ex. PW2/B
handover of dead
body after
postmortem
3. PW3 Sh. Joginder Pal Site plan prepared Ex.PW3/A
Arora at his instance.
Arrest memo and
personal search Ex.PW3/B
memo. and PW3/C
4. PW4 Ct. Mukesh Seizure memo of Ex.PW4/A
motorcycle.
Ex.PW4/B to
Photographs of the PW4/F.
spot.
5. PW5 Sh. Jamidar Shah Photographs of the Ex. X1 to X8.
FIR NO. 456/11
State Vs. Gautam Kumar 3 of 18
4
car and CD of the And X9.
photographs.
Notice u/s.133 MV Ex.PW 5/A.
Act.
Superdarinama Ex.PW5/B
6. PW6 HC Rattan Singh DD No.10 Ex.PW6/A
7. PW 7 Sanjay Chabra His statement Ex.PW7/A
8. PW8 Retd.ASI/Tech Mechanical Ex.PW8/A
Devender Kumar Inspection report of
motorcycle.
Mechanical Ex. PW8/B
Inspection report of
Bolero Car.
9. PW 9 CT. Jitender Seizure memo of Ex.PW9/A
driving license of
accused.
Seizure memo of Ex. PW9/B
RC and Insurance
of Bolero Car
10. PW10 Ct. Hari Om True copy of DD Ex. PW 10/A
No. 16B
11. PW11 HC Chatar Singh Rukka Ex.PW11/A
Seizure memo of Ex.PW11/B
car of accused.
12 PW12 Dr. Anupa Singhal MLC of deceased Ex.PW12/A
13 PW13 Retd.SI Sugan Lal Request Ex.PW13/A,
applications of IO Ex.PW13/B
for conducting and PW
postmortem 13/C.
14 PW14 Dr.Vijay Dhankar Post mortem report Ex.PW14/A
FIR NO. 456/11
State Vs. Gautam Kumar 4 of 18
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6. In order to prove its case prosecution examined following witnesses:
7. PW1 HC Ravinder Kumar deposed that on 11.11.2011, he was posted at PS KNK Marg as Duty Offier. On that day at about 10.50 AM, a rukka was sent by HC Chhatar Singh through HC Ravinder, on the basis of which he registered present FIR vide computer generated copy Ex. PW1/A bearing his signature at point A. He also made endorsement on the original rukka vide Ex. PW 1/A bearing his signature at point A. Ld. Defence counsel cross examined the witness.
8. PW2 Sh. Vijay Kumar deposed that on 11.11.2011 he went to BSA hospital mortuary and identified the dead body of his son vide identification memo Ex.PW2/A bearing his signature at point A. After post mortem dead body was handed over to him vide receipt Ex.PW2/B bearing his signature at point A.
9. PW3 Sh. Joginder Pal Arora deposed that at about 7.30 AM, he saw that one motorcycle was coming from E Block side. One bolero car came from the side of Government Sarvodhya School and all of a sudden took a wrong cut at high speed on wrong side of the road from where the motorcycle was passing and thereby hit the motorcycle. After the accident, driver of the offending vehicle stopped the car. He put the injured in the car of the accused. He had seen the accused at the spot. He took mobile from someone and called at 100 number. He informed about the accident to the police officials and identified the accused, who was FIR NO. 456/11 State Vs. Gautam Kumar 5 of 18 6 driving the car. At his instance police officials prepared the site plan Ex.PW3/A. Accused was arrested in his presence vide memo Ex.PW3/B bearing his signature at point A. Personal search of accused was conducted vide memo Ex.PW3/C bearing his signature at point A.
10. PW4 Ct. Mukesh deposed that he was on emergency duty from 8 PM to 8 AM on 10/11.11.2011. On receipt of DD no.16 B, he along with HC Chander Singh went to the accident spot and found motorcycle no. DL8SAR9404 in accidental condition. No eye witness was found at the spot. He came to know that injured was taken to BSA hospital via the offending vehicle i.e. Bolero car no. DL8CNA 1844. IO left him at the spot and went to the hospital. On his return from the hospital, he seized the motorcycle vide seizure memo Ex.PW4/A bearing his signature at point A. IO prepared rukka and sent for registration of FIR. He got registered the FIR and returned back to the spot and handed over the rukka and copy of FIR to the IO at the spot. The photographs of the spot are Ex.PW 4/B to PW4/F.
11. PW5 Sh. Jamidar Shah deposed that he is the registered owner of Bolero car bearing no.DL8CNA 1844. Photographs of the said car are Ex.X1 to X8 and CD of the photographs are X9. Police official served upon him a notice under Sec.133 MV Act and same is Ex.PW5/A.
12. PW6 HC Rattan Singh deposed that on 11.11.2011, he was the duty officer at MACT Cell, PS South Rohini from 8 AM to 8 PM. At 11.45 AM, he received a message on telephone by DO 10 HC Ravinder, PS KNK FIR NO. 456/11 State Vs. Gautam Kumar 6 of 18 7 Marg regarding the incident. He entered the said information vide DD no.10 and handed over the same to Ct. Jitender. Said DD no.10 is Ex.PW 6/A bearing his signature at point A.
13. PW7 Sanjay Chabra deposed that on 11.11.2011, his nephew Rajat was hit by some vehicle, as a result of which, he expired. He went to the BSA hospital along with father of deceased. Police recorded his statement. Same is Ex.PW7/A bearing his signature at point A.
14. PW8 Retd. ASI/Tech Devender Kumar deposed that on 11.11.2011, he mechanically inspected motorcycle bearing no.DL8SAR 9404 make Honda Stunner and one Mahendra Bolero no.DL8CNA 1844 at the request of IO. His detailed report with regard to motorcycle and Bolero car are Ex.PW8/A and PW8/B respectively, bearing his signature at point A.
15. PW9 Ct. Jitender deposed that on 11.11.2011, he was posted at MACT Cell, Outer Dist. After receiving the DD entry, he along with SI Sugan Lal went to BSA hospital. After reaching there, he met HC Chetar Singh. HC Chetar Singh told him that the injured had expired. Father and uncle of deceased identified the body of deceased. IO recorded his statement. After the postmortem, dead body was handed over to the father and uncle of deceased. IO prepared the seizure memo of driving license vide Ex.PW9/A bearing his signature at point A. RC and insurance were seized by the IO and he prepared the seizure memo of the same which is Ex.PW9/B, bearing his signature at point A. FIR NO. 456/11 State Vs. Gautam Kumar 7 of 18 8
16. PW10 Ct. Hari Om deposed that on 11.11.2011, he was working as DD writer at PS KNK Marg. At about 7.50 AM, he received information from wireless operator regarding accident at A68, near Government school, sector16, Rohini. He recorded the same vide DD no.16B. True copy of the said DD entry is Ex.PW10/A.
17. PW11 HC Chatar Singh deposed that on 11.11.2011, on receipt of DD no.16B, he along with Ct. Mukesh reached at the spot and found an accidental motorcycle and came to know that injured was taken to BSA hospital. He left Ct. Mukesh to guard the spot and went to the hospital. He collected the MLC of injured on which the injured was declared brought dead. Accused was present in the hospital along with his Bolero car. No eye witness could be found at hospital. He prepared rukka on the basis of DD entry. Rukka is Ex.PW11/A bearing his signature at point A. The car of the accused was seized by him, vide seizure memo Ex.PW11/B bearing his signature at point A. He returned to the spot and gave rukka to Ct. Mukesh, who went to PS for getting FIR registered. After some time he returned at the spot and handed over the copy of FIR and original rukka to him. In the mean time SI Sugan Lal also arrived at the spot. Witness handed over the relevant documents, custody of accused and the case property to SI Sugan Lal. Further investigation was taken by SI Sugan Lal. He joined investigation with the second IO as a witness. On the same day the accused Gautam Kumar was arrested by the IO at PS KNK Marg.
FIR NO. 456/11State Vs. Gautam Kumar 8 of 18 9
18. PW12 Dr. Anupma Singhal, CMO Dr BSA Hospital deposed that on 11.11.2011, deceased was brought by Balero driver Gautam to casualty with alleged history of RTA. She examined the patient vide MLC no.11547/11 which is Ex.PW12/A bearing his signature at point A.
19. PW13 Retd. SI Sugan Lal deposed that on 11.11.2011, he was posted at Accident Investigation Unit at Outer Dist. Delhi. On that day after registration of the case, same was marked to him. On receipt of DD no.10 from Ct. Jitender, he went to BSA hospital where the dead body was already got preserved in the mortuary by the first IO. I met HC Chattar Singh and handed over to him the MLC of the deceased Rajat. Family members of the deceased also met him in the hospital, who identified the dead body of the deceased vide their statements Ex.PW2/A and PW7/A. On his request application which is Ex.PW13/A, doctors conducted the postmortem examination over the dead body of deceased. After postmortem, the dead body was handed over to Sh. Vijay, father of deceased vide memo Ex.PW2/B. Thereafter, he returned to the spot but no one met him there. Thereafter, he returned to the PS where HC Chhattar Singh met him and handed over to him both the seizure memos of the vehicles and the custody of accused Gautam Kumar. Eyewitness Jogender Pal also met him at PS. He served upon notice Ex.PW5/A upon Sh. Jamidar Shah, registered owner of the offending vehicle i.e. Bolaro car and registered owner gave his reply to the notice itself, whereby he mentioned that accused/his son Gautam was driving his vehicle at the time of accident. IO arrested the accused upon the identification of eyewitness Jogender Pal vide arrest memo Ex.PW3/B. Personal search FIR NO. 456/11 State Vs. Gautam Kumar 9 of 18 10 memo was also conducted vide memo Ex.PW3/C. Accused also produced his DL to him, which was seized vide memo Ex.PW9/B. He recorded statement of HC Chattar Singh, Jogender Pal, Jamidarh Shah, Ct. Mukesh, Sanjay, Vijay Kumar and Ct. Jitender under Sec.161 Cr.PC. Thereafter, he along with eye witness Jogender Pal went to the spot and he prepared site plan Ex.PW3/A. Thereafter, he returned to PS and called Devender Kumar Ex. ASI upon his request applications which are Ex.PW 13/B and PW13/C. Ex.ASI/Tech Devender Kumar conducted the mechanical inspection of both the vehicles involved in the accident i.e. motorcycle and Bolero car. After inspection, Devener Kumar prepared inspection reports which are Ex.PW8/A and PW8/B and handed over the same to him. He recorded the statement of Ex.ASI Devender Kumar. He also collected the post mortem report of deceased. After completion of investigation, he prepared the present charge sheet and filed before the court.
20. Dr. Vijay Dhankar, Specialist & HOD Forensic Medicine, BSA hospital deposed that he had come to depose on behalf of Dr. J.V.Kiran Kumar, the then Sr. Resident, Forensic Medicine at BSA hospital. He had seen PM report no.547/11 of deceased Rajat as Ex.PW14/A, which was prepared by Dr. J.V.Kiran Kumar. He had identified the signatures of Dr. J.V.Kiran over the said postmortrem report Ex.PW14/A as he had worked with him and seen him writing and signing during the course of his official duties.
21. Thereafter, prosecution evidence was closed vide order dated FIR NO. 456/11 State Vs. Gautam Kumar 10 of 18 11 27.04.2019.
Statement under section 313 Cr.PC
22. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded. All incriminating material brought on record were put to the accused to which he denied the allegations made against him and claimed himself to be innocent and pleaded that he has been falsely implicated in this case. Accused did not opt to lead any evidence in his defence and the same was closed.
Arguments
23. On the basis of the above oral and documentary evidence on record, learned APP requested for conviction of the accused and severe punishment as per law.
24. On the other hand, learned defence counsel contended that the prosecution has miserably failed to establish the guilt of the accused beyond all reasonable shadow of doubt as prosecution has as such failed to establish the rashness and negligence on the part of the accused in the present case. Accordingly, he prayed for the acquittal of the accused.
Point for determination
25. In the present case, accused was chargesheeted under Sections 279 and 304A of IPC. Hence, the points for determination are following :
1. Whether the accused was driving the vehicle bearing registration No. DL8C NA1844 at a public place in a manner so rash FIR NO. 456/11 State Vs. Gautam Kumar 11 of 18 12 or negligent so as to endanger human life or personal safety of others?
2. Whether the accused by so driving his vehicle in a rash and negligent manner caused death of one Rajat not amounting to culpable homicide?
Answers to point for determination:
I) Yes II) Yes Reasons for determination
26. The onus lies on the prosecution to prove these allegations against the accused.
27. In the present case, charges brought against the accused are under Sections 279 and 304A of IPC for driving the vehicle in question in a rash and negligent manner and thereby causing death of one Rajat. The prosecution in order to bring home the guilt of the accused examined fifteen witnesses in its evidence. In order to prove the guilt of the accused, it was incumbent upon the prosecution to prove:
Firstly, that accident in question took place; Secondly, accused was driving the vehicle in question at that relevant point of time and Thirdly, accused was rash and negligent in driving the vehicle in question. So far as, the question of taking place of accident is concerned, the same is not disputed. The death of deceased is also undisputed in the present case.FIR NO. 456/11
State Vs. Gautam Kumar 12 of 18 13
28. The next question to be determined by the court is, whether accused was driving the offending vehicle at the time of accident or not?
In the present case, the identity of the accused is not in doubt as PW3, being the eye witness examined by the prosecution clearly identified the accused as the person driving the offending vehicle at the relevant point of time. In addition to this, PW 5 being the owner of the offending vehicle also identified the accused as the driver of the aforesaid car on the fateful day of the incident.
29. Now, since the identity of the accused stands established and is undisputed, the only material question which is left to be determined is: Whether the accused was driving the vehicle in a rash and negligent manner at the time when the alleged incident took place?
Before delving into the merits of this material issue, it becomes necessary to examine the testimony of sole eye witness in the present case i.e. PW 3 Joginder Pal Arora. To sustain the conviction of the accused, it becomes imperative to carefully scrutinize the testimony of this sole eye witness. This witness stated that on 11.11.2011, he was returning back to his home after morning walk and at about 7:30 am, when he reached at T Point of Sector 16, E Block, near Govt. Sarvodya School, he saw one motorcycle, coming from E Block side. He further stated that one Bolero Car came from the side of Govt. Sarvodya School and all of a sudden took long cut at high speed and on the wrong side of the road from where the motorcycle was passing and thereby, hit the aforesaid motorcyclist.
30. PW3 is the star witness examined by the prosecution to prove its FIR NO. 456/11 State Vs. Gautam Kumar 13 of 18 14 case against the accused and to sustained the conviction of the accused in the present case, it becomes imperative to carefully probe and scrutinize the testimony of PW3. This witness specifically deposed that the offending vehicle that is the bolero car was being driven at a high speed and the accused took a long cut on the wrong side of the road which caused the alleged accident. At the same time, it becomes crucial to co relate the testimony of the sole eye witness with the sight plan Ex. PW 3/A, which also shows and corroborates the story of the prosecution that the Bolero car was coming from the side of the sector 15 and took a sharp turn near the TPoint towards EBlock. The site plan further reveals that the driver of the Bolero car had taken a long cut which appears to be on the wrong side of the road which resulted in the car hitting the motorcyclist and as a result of which the consequent accident took place. The site plan also duly bears the signature of PW3, who also deposed that the said site plan was prepared at his instance and narration as a result of the detailed sketch prepared after the description given by him of the spot of the accident. During the course of the arguments, Ld defence counsel vehemently argued that eyewitness i.e. PW3, witnessed the alleged accident at about 7:30 am and according to him the same appears to be false because according to PW3 himself, he usually devotes around 1 ½ 2 hours for his morning walk. It is further argued by Ld. Defence counsel that, if PW3 starts from his house at 6 am, then how could he have witnessed any accident at 7:30 am, because at that time, he ought to have been in the district park, where he goes for the morning walk. However, this arguments does not appear to be very convincing to this court as the so called schedule of his morning walk given by PW3 appears FIR NO. 456/11 State Vs. Gautam Kumar 14 of 18 15 to be more or less general in nature, morning walk being one of the ingredients of his daily routine being followed by PW3 in his every day life and the same cannot be construed in a rigid and strict manner. Slight deviation in the timing of the commencement and the completion of morning walk of PW3 cannot be negative and this slight deviation of 10 15 minutes can also not be taken to be sufficient enough to doubt the veracity of the version of the PW3, as far as he being present near the spot of the accident is concerned. PW3 was also put to the litmus test of cross examination during which nothing substantial could be culled out to shake the credibility of the version of this witness. Mere inability of the witness to tell the exact speed of the vehicles involved in the alleged accident shall not be a ground to disbelieve the prosecution story. This witness specifically deposed that the offending vehicle was driven at a very high speed and it took a sudden turn on the wrong side of the road. The version of PW3 regarding the directions of the vehicles involved in the accident duly stands fortified and corelated with the site plan Ex. PW 3/1. During the entire crossexamination of the eye witness PW3, there is not even a single suggestion to the witness that the accused was not driving the aforesaid bolero car in rash and negligent manner or that some other vehicle had caused the alleged accident.
31. It is a settled proposition of law that testimony of a sole eye witness is sufficient to sustain the conviction of the accused and minor contradictions and embellishments in the testimony of a public witness cannot be allowed to act as a defence of the accused, in cases where minor embellishments do not go to the very roots of the case. Here, I FIR NO. 456/11 State Vs. Gautam Kumar 15 of 18 16 would like to place reliance upon Prithipal Singh and Others Vs. State of Punjab and Another (2012) 1 SCC 10, it was held as under: "49. This court has consistently held that as a general rule the court can may act on the testimony of a single witness provided he is wholly reliable.
There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration.
In fact, it is not the number or the quantity, but the quality that is material.
The timehounoured principle is that evidence has to be weighted and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."
The same principle was reiterated in Sudip Kumar Sen Alias Biltu V. State of West Bengal and others (2016) 3 SCC 26.
32. I would further like to place reliance upon Bharwada Bhoginbhai Hirjibhai V. State of Gujarat (1983) 3 SCC 217, where it was observed FIR NO. 456/11 State Vs. Gautam Kumar 16 of 18 17 that undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the root of the matter and shake the basic version of the prosecution witnesses. A witness cannot be expected to possess a photographic memory and to recall the details of an incident verbatim. Ordinarily, it so happens that a witness is overtaken by events. A witness could not have anticipated the occurrence which very often has an element of surprise. The mental faculties cannot, therefore, be expected to be attuned to absorb all the details. Thus, minor discrepancies were bound to occur in the statement of witnesses.
The same principle was reiterated in State of U.P. V. M.K. Anthony (1985) 1 SCC 505.
33. The police officials examined by the prosecution have duly testified about the investigation conducted by them and no significant discrepancy could be found in their evidence. Ld. Counsel for the accused argued that the eyewitness was a resident of the same locality as that of the victim/deceased but, even taking it as correct, it does not make the eyewitness an interested witness and moreover PW3 stated that he also knew the accused, being the resident in the same locality. The photographs of the vehicles involved in the alleged accident are also on record and perusal of the same shows the blood marks on the road, as a result of vehicle hit injury.
FIR NO. 456/11State Vs. Gautam Kumar 17 of 18 18 Hence, in view of the cogent, specific as well as convincing testimony of the eyewitness and the other prosecution witnesses as well as the documents on records i.e the site plan, notice issued u/s 133 MV Act, the arrest and the search memos of the accused, the mechanical inspection report of the vehicle as well as their photographs, there appears to be no reason to disbelieve the truthfulness of the version of prosecution witnesses especially in the absence of any defence evidence lead by the accused, therefore, accused Gautam Kumar is hereby convicted for the offence U/s 279/304A IPC.
Announced in open Court
Today on this 28.08.2019 RICHA
Digitally signed by
RICHA SHARMA
SHARMA Date: 2019.08.28
17:25:57 +0530
(RICHA SHARMA)
MM8(North)Rohini Courts:Delhi
FIR NO. 456/11
State Vs. Gautam Kumar 18 of 18