Delhi District Court
Unknown vs State 2007 (V) on 23 April, 2010
IN THE COURT OF SH. RAVINDER SINGH : MM : N. DELHI
FIR no. 205/91
P.S. Hauz Khas
U/s 279/304A IPC
State v. Jaspal
JUDGMENT :
a. Srl. No. of the case : 86/2
b. Date of Institution : 16.11.91
c. Date of Commission of Offence : 19.05.91
d. Name of the complainant : Sh. Wahid Ali
S/o Sh. Niyamat Ali Khan
e. Name of the accused : Jaspal
persons and their addresses S/o Sh. Inder Singh
R/o Nangloi Village
Khurd P.S.
f. Offence complained of : U/s 279/304A IPC
g. Plea of the accused persons : Pleaded not guilty
h. Order reserved : 21.04.2010
i. Final Order : Convicted
j. Date of such order : 23.04.2010
Brief reasons for the decision of the case:
1. The fact to rewrite the judgment is that the accused was convicted and sentenced by the Ld. Predecessor of this court on 26.06.07. The accused preferred appeal against order of conviction and sentence and the Ld. Sessions Court set aside the order of conviction and sentence dated 26.06.07 with direction to this court to record the proper statement of accused and thereafter proceed further as per law. In view of direction of Ld. Sessions Court statement of accused again recorded on 29.08.2009.
F.I.R. No. 205/1991 Page no. 1 of 10
2. Brief facts of case are that on 19.5.91 on receipt of DD no. 23A regarding accident, S.I. B.N. Sharma reached on the spot along with Ct. Gopal Ram where he found one truck bearing no. DHG 8504 in accidental condition and also saw one dead body lying under rear wheel of the above said truck, there they also found accused along with one eye witness namely Wahid Ali who is brother of deceased Akin so on his statement case F.I.R. 205/91 was registered. Investigation was carried out, site plan was prepared and statement of witnesses were recorded, site plan was prepared, accused was arrested and after completion of all necessary investigation challan U/s 173 Cr.P.C was presented in the Court for trial of accused.
3. Accused was summoned by the court to face the trial so copy of challan as required U/s 207 Cr. PC was supplied to the accused. Thereafter charge under section 279 and 304A I.P.C. was framed against the accused on 11.03.93. The accused denied the charges and claimed to be tried.
4. In support of its case prosecution has produced and examined 9 witnesses namely M.L. Gupta as PW1, Dr. Sunil Sharma as PW 2, Ajmat Khan as PW 3, Wahid Ali the complainant as PW 4, S.I. B.N. Sharma as PW 5, Insp. S.K. Patel as PW 6, Ct. Abhimanyu as PW 7, H.Ct. Jasbir Singh as PW 8 and Ranjeet Singh as PW9.
4. A. PW 1 M.L. Gupta testified that he does not remember the date and time, however he informed about the incident to the police as incident took place in front of his ice factory about which he was informed by his employee.
PW1 cross examined by Ld. APP as he resiled from his F.I.R. No. 205/1991 Page no. 2 of 10 statement given earlier to the police. PW1 testified that police did not record his statement nor he reached at the place of accident nor he stated to police that he found truck no. DHG 8504 with driver Jaspal at the spot whom he knew prior to the incident.
Accused did not prefer to cross examine PW1.
4. B. PW2 Dr. Sunil Sharma proved the postmortem report of deceased Akin Ex. PW 2/A wherein cause of death opined as shock of injuries produced by blunt force could be due to run over vehicular accident.
Accused did not prefer to cross examine PW 2.
4. C. PW 3 Azmat Khan identified dead body of his brother/deceased Akin vide statement Ex. PW 3/A in AIIMS hospital mortuary.
Accused did not prefer to cross examine PW3.
4. D. PW4 Wahid Ali the complainant has testified that on 19.5.91 he was resting after dinner with his two brothers when at about 4.00 am one truck bearing no. H-8504 make NISSAN came in fast speed without blowing horn or light and when driver of said truck moving back his truck in fast speed without dipper light and horn and when he shouted one of his brother Azamat wake up and ran away whereas the rear wheel of above said truck which was loaded with ice passover the body of his another brother Akin, thereafter he apprehended the accused who is present in the courts and he called his owner Mr. Gupta who informed the police. PW 4 further testified that police recorded his statement Ex. PW 4/A and seized the truck and D/L vide memo Ex. PW 4/B and 4/D respectively and also conducted the personal search of accused vide memo Ex. PW 4/C. Thereafter police removed the body to F.I.R. No. 205/1991 Page no. 3 of 10 AIIMS Hospital where its postmortem was conducted. During cross examination PW4 testified that they were sleeping on the said place where accident occurred. PW 4 also admitted that accused brought ice into ice factory daily. PW4 denied the suggestion to the effect that truck cannot go into the street. PW4 also testified that he has not seen the light of alleged truck prior to the accident, however on the date of incident light was not working. PW4 denied the suggestion to the effect that accused was not driving the truck in rash and negligent manner. PW4 also denied the suggestion to the effect that due to reason of sleeping injured slipped and going under the truck due to mistake.
4. E. PW5 S.I. B.N. Sharma is the I.O. of the case who testified that on 19.5.91 on receipt of DD no. 23A Ex. PW 5/A he along with Ct. Gokul Ram reached at the spot where one Truck no. DHG 8504 was found and under the rear tyre of said truck one body was also found lying and accused was apprehended by Wahid Ali and others so statement of Wahid Ali was recorded Ex. PW 4/A and endorsed the same vide Ex. PW 5/B and got the case F.I.R. registered through Ct. Gokul Ram. PW5 further testified that he prepared site plan Ex. PW 5/C of spot and seized the above said truck vide memo Ex. PW 4/B, thereafter accused was arrested and his personal search was conducted vide memo Ex. PW 4/C and D/L of accused was also seized vide memo Ex. PW 4/D. PW5 further testified that he got conducted the postmortem of deceased, got the offending vehicle mechanically inspected and collected the relevant reports thereof.
Accused did not prefer to cross examine PW 5.
4. F. PW6 Insp. S.K.Patil testified that he conducted the mechanical F.I.R. No. 205/1991 Page no. 4 of 10 inspection of truck bearing no. DHG 8504 vide his report Ex. PW 6/A. Accused did not prefer to cross examine PW 6.
4. G. PW 7 Ct. Abhimanyu testified that on 19.5.91 body of deceased was handed over to its relatives.
Accused did not prefer to cross examine PW 7.
4. H. PW 8 H.Ct. Jasbir Singh testified that on 19.5.91 he was working as photographer at P.S. Hauz Khas when he called by I.O. Bhramanand at the spot so he reached there and took photographs of the spot, the photographs are Ex. P1 to P6 along with negatives Ex. P7 to P10.
During cross examination PW8 testified that while taking photographs the dead body was lying near the tyre of the truck.
4. I. PW9 Ranjeet Singh proved the superdaginama Ex.PW9/A, however he has not brought any proof of ownership of vehicle and stated that he disposed off the vehicle. PW9 identified the accused as his driver on the day of incident.
Further chief of PW9 was deferred for want to ownership proof of offending vehicle as well as disposal proof of the same.
5. Statement of the accused recorded U/S 313 r/w. 281 Cr.P.C. dated 29.08.2009 wherein accused denied the allegations of the prosecution and stated that he was not driving the said truck in rash and negligent manner and was just driving back the truck loaded with ice and it was not in high speed and that accident was not caused due to his fault and that he is innocent and all the witnesses have been deposing falsely against him. However, F.I.R. No. 205/1991 Page no. 5 of 10 accused did not prefer to lead any defence evidence.
6. I have heard the ld. APP for the State and Ld. counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
7. In order to bring home the guilty of the accused the prosecution must prove beyond reasonable doubt that :
A. The accused was driving the offending Truck bearing no. DHG 8504 at back street of R-11, Green Park on aforesaid date and time.
B. Accused was rash and negligent in driving the above said Truck at the aforesaid date time and place, C. The death of deceased Akin caused due to the accident which was caused due to rash and negligent driving on the part of the accused.
Point A:
PW4 testified that a truck was coming from the side of Green Park in a very high speed without blowing the horn and the said truck was being driven by the accused present in the court. I.O. /PW5 testified that he reached on the spot on receipt of DD no. 23A and he found a truck NISSAN bearing no. DHG 8504 and one dead body of deceased Akin. PW5 also testified that accused was apprehended by Wahid Ali/PW4 on the spot and accused was handed over to him. He seized the truck DHG 8504 vide Ex. PW 4/B on the spot and arrested the accused and conducted his personal search vide memo Ex. PW 4/C. It is clear from the testimony of PW4 and PW5 that truck bearing no. DHG 8504 was being driven by the accused on the spot i.e. at back street, R-11, Green Park on 19.5.91.
It is also pertinent that accused in his statement recorded U/s. 313 r/w. 281 Cr.P.C. stated as under:
F.I.R. No. 205/1991 Page no. 6 of 10 "...Q. It is in evidence against you that on 19.05.91 at about 4.00 AM in the back street of R-11, Green Park, within the jurisdiction of P.S. Hauz Khas you were driving truck DHG 8504 in rash and negligent manner and ran over the deceased Akin. PW 4 gave the information of accident to PW 1 who informed the police. I.O. /D.N. Sharma reached on the spot who recorded the statement of PW 4 Ex. PW 4/A and made his endorsement Ex. PW 5/B and got the case F.I.R. registered. What have you to say?
A. It is incorrect. I am not driving the abovesaid truck in rash and negligent manner and I was just driving my truck back and truck was loaded with ice. Q. It is in evidence against you that PW 5 carried out the investigation and prepared the site plan Ex. PW 5/C and also seized the truck DHG 8504 vide memo Ex. PW 4/B and PW 5 got mechanically inspected the said truck through PW 7 vide its report Ex. PW 6/A. PW 5 also got the accidental site photographed through PW 8 vide photograph Ex. PW 1 to 5 and PW 7 to 10 . What have you to say?
A. It is a matter of record.
Q. It is in evidence against you that you were
arrested on spot by PW 5 and your personal search was also conducted vide memo Ex. PW 4/C and further your D/L was also seized vide memo Ex. PW 4/D . What have you to say?
A. It is correct...."
Though it is not the case of the accused that vehicle truck NISSAN bearing no. DHG 8504 was not in condition to run, yet prosecution has proved that vehicle i.e. truck NISSAN was fit for road test. The said report Ex. PW 6/A has been proved by mechanical Insp. PW6.
In view of above discussion prosecution has proved beyond reasonable doubt that accused was driving the offending Truck bearing no. DHG 8504 at back street of R-11, Green Park on aforesaid date and time.
F.I.R. No. 205/1991 Page no. 7 of 10
Point B:
To prove the rash and negligent driving on the part of accused prosecution has examined Wahid Ali, the brother of deceased as PW4.
PW4 in his examination-in-chief has testified as under (verbatim):
"..On 19.5.91 I was working /running a raddy of ice cream with my two brothers. At about 11.00 pm after taking dinner we had take the rest at Green Park, at about 4.00 am one truck bearing no. H 8504 make NISSAN due to illiteracy I cannot say the exact number of the above said truck was coming from the side of Green Park in a very fast speed without blowing the horn and without light and turned in the street where we were sleeping and the above said truck was back from this street where we were sleeping. When the driver was driving the truck, the above said truck there is no dipper light on the truck, he did not blow the horn and he was driving back the truck in very fast speed. Accused was driving back in a rashly manner and I alarm to driver to stop the above said truck because my both brother were sleeping in the place of above said gali (street). I made the noise 'utho-utho' and he stopped the vehicle, meantime my brother Azmat run away after hearing my noise, meantime above said truck was coming back in a very fast speed and passover on the body of my younger brother Akin. The rear wheel was passover from the body of Akin. The above said truck was loaded with ice..."
It is clear from the testimony of PW4 that accused who was driving the above said truck, backed it without blowing horn. Further accused backed the truck i.e. the commercial vehicle without getting help of anybody.
The accused in his defence stated that accident was not caused due to his fault as at the time of accident his truck was F.I.R. No. 205/1991 Page no. 8 of 10 in back gear and loaded with ice so it was not in high speed in back gear therefore he was not negligent. It is clear from the statement of accused himself that he was backing his loaded truck of ice without the help of helper and It is clear that one can not see what was behind the truck while one is on driver's seat. So without seeing what was behind and drove the vehicle in back gear is clear case of rash and negligent and due this act of the accused, the brother of PW4 was ran over by the rear wheel of the above said truck.
Ld. Defence counsel pointed out certain contradiction in the testimony of PW4 but going into his statement as a whole, I find the testimony of PW4 is natural and trustworthy and does not suffer any infirmity. Further, nothing has brought on record to show him to be inimical towards accused. Further accused also failed to brought anything on record which suggests that PW4 has animus against the accused to implicate him falsely in this case.
In view of above discussion, prosecution has proved beyond reasonable doubt that accused was rash and negligent in driving the above said Truck at the aforesaid date time and place, Point C:
One of the arguments of Ld. Counsel for accused that doctor concerned who has conducted the postmortem of the deceased has not examined in this case so the postmortem report Ex. PW 2/A has no relevancy. Admittedly, PW2 /Dr. Sunil Kumar has not been cross examined on behalf of the accused, further it is also not the case of the accused that death of accused took place due to any other reason and not due to accident. Hon' ble High Court of Delhi in Rajesh Kumar @ Raju V. State 2007 (V) AD (V) 126 rendered on 21.2.06 wherein it was held that merely because the doctor concerned is not properly examined does not F.I.R. No. 205/1991 Page no. 9 of 10 rendered the report unbelievable. Reliance is also placed upon another decision of Hon' ble High Court in case Paleram V. NCT Delhi Cr.A.No. 609/99 decided on 7.11.2002. In view of this I find no force in the arguments of Ld. Counsel for accused.
PW2 proved that Dr. Rajiv Alka conducted the postmortem of dead body of deceased Akin vide his report Ex. PW 2/A. The cause of death of deceased in report Ex. PW 2/A is shock as a result of anti mortem injuries produced by blunt force, could be due to a run over vehicular accident.
In view of findings recorded in Point B and in testimony of PW2, the prosecution has proved beyond reasonable doubt that the death of deceased Akin caused due to the accident which was caused due to rash and negligent driving on the part of the accused.
8. In view of finding recorded above, I am of considered opinion that prosecution has proved its case beyond reasonable doubt. Accordingly accused Jaspal is convicted for the offence punishable u/s. 279/304 A IPC.
Announced in the Open Court
On 23.04.2010 (RAVINDER SINGH)
Metropolitan Magistrate:
New Delhi.
F.I.R. No. 205/1991 Page no. 10 of 10