Delhi District Court
State vs . Ramesh on 10 October, 2014
IN THE COURT OF MS. SUGANDHA AGGARWAL: CHIEF
METROPOLITAN MAGISTRATE (WEST) : DELHI.
State Vs. Ramesh
FIR No. 84/2009
PS Janak Puri
Unique Case ID No. 02401R0298492009
J U D G M E N T
(a) Sr. No. of the case 153/2
(b) Date of offence 16.03.2009
(c) Complainant Constable Pyare Lal.
(d) Accused Ramesh, S/o Laxman Dass, R/o
H.No. L123124, Mohan
Garden, Gali No.10, Uttam
Nagar, New Delhi.
(e) Offence Under Section 279 and 304A of
Indian Penal Code
(f) Plea of accused Pleaded not guilty
(g) Final Order Convicted
(h) Date of institution 10.07.2009
(i) Date when judgment 22.09.2014
was reserved
(j) Date of judgment 10.10.2014
1. This judgment shall dispose off the case filed for offences under Section 279 and 304A of Indian Penal Code.
2. The allegations against the accused, as detailed in the charge FIR No. 84/2009 Page No. 1 of 24 sheet are that on 16.03.2009 at about 6.10 pm at Dharam Marg Community Centre, B1, Janak Puri, New Delhi, accused was driving a bus bearing registration No. DL1PB9731 (hereinafter to be referred as 'the offending bus') in a rash and negligent manner so as to endanger human life and personal safety of others and it is also alleged that while driving the said bus, accused struck the same against motorcycle bearing registration No.DL9SP7614 thereby causing death of Amit Chamoli. According to the prosecution accused has committed offences under Section 279 and 304A of Indian Penal Code.
3. After completion of investigation, chargesheet was filed. Accused was supplied with copies in compliance of Section 207 Code of Criminal Procedure, 1973. Notice was framed under Section 279 and 304A of Indian Penal Code against the accused vide order dated 30.11.2009 to which accused pleaded not guilty and claimed trial.
4. Prosecution adduced evidence in support of its case. PW1 HC Pyare Lal is the eyewitness to the incident. PW1 has deposed FIR No. 84/2009 Page No. 2 of 24 that on 16.3.2009, he was on patrolling duty at B3 Block, Janak Puri. During patrolling, he saw that offending bus was coming from Bharti College District Park side which was being driven at high speed and in rash and negligent manner and it struck against one motorcyclist who had fallen under the rear side wheel of the offending bus and got injuries. He further deposed that public gathered at the spot and stopped the bus and the accused who was driving the offending bus. He further deposed that PCR reached at the spot. A complaint was made by PW1 to HC Nempal and accused was handed over by PW1 to HC Nempal who prepared the site plan and thereafter investigation was marked to SI Narottam Singh. Further PW1 deposed regarding the seizure of motorcycle, the offending bus and driving license of accused. PW1 also deposed regarding the arrest and personal search of accused and he correctly identified the accused and the offending bus in the Court. PW1 was crossexamined and discharged.
5. PW2 Ajay Chamoli and PW3 Deepak Dobal identified the dead body of deceased vide statements Ex.PW2/A and Ex.PW3/A. FIR No. 84/2009 Page No. 3 of 24 Both these witnesses were not crossexamined despite opportunity and discharged.
6. PW4 Harmeet Singh is the owner of the offending bus who received the notice under Section 133 of Motor Vehicles Act. He had deposed on oath that on the date of accident, the offending bus was being driven by the accused. PW4 has not been cross examined despite opportunity and discharged.
7. PW5 ASI (Tech.) Devender Kumar has identified the mechanical inspection report of the offending bus and the motorcycle of deceased as Ex. PW5/A and Ex.PW5/B respectively. PW5 was crossexamined and discharged.
8. PW6 W/Ct. Anita identified DD No.39 as Ex.PW6/A. PW9 ASI Jai Singh identified the copy of FIR as Ex.PW9/A and endorsement on rukka as Ex.PW9/B. Both these witnesses were crossexamined and discharged.
9. PW7 HC Ram Kishan deposed that on 16.3.2009 after receiving the call of accident, he went at the spot and thereafter took one male injured to DDU Hospital who was declared brought dead. FIR No. 84/2009 Page No. 4 of 24 PW7 was crossexamined and discharged.
10.PW8 Dr. Alok from DDU hospital deposed that he had examined the injured and prepared MLC No. 4712 which he identified as Ex.PW8/A. PW8 further deposed that the injured was admitted with history of road accident and he was declared brought dead. PW8 was not crossexamined despite opportunity and discharged.
11.PW10 Ajit Yadav, Record Clerk from DDU Hospital identified the signatures of Dr.Mohd. Masood on the post mortem report of deceased and identified the same as Ex.PW10/A. PW10 was not crossexamined despite opportunity and discharged.
12.PW11 Ct. Jai Prakash and PW12 Retd. SI Narottam Singh have deposed that on 16.3.09, on receipt of DD No.34A regarding accident, they went to spot of accident and found the offending bus as well as the above motorcycle in accidental condition and came to know that injured has already been shifted to DDU Hospital. Eye witness Ct. Pyare Lal was present at the spot and IO recorded his statement, on the basis of which rukka was prepared and FIR was got registered. PW11 Ct. Jai Prakash and FIR No. 84/2009 Page No. 5 of 24 PW12 Retd. SI Narottam Singh have further deposed that both the above vehicles were seized vide seizure memos Ex.PW1/C and Ex.PW1/D. The accused was arrested vide arrest memo Ex.PW1/E and personally searched vide personal search memo Ex.PW1/F. Both the witnesses duly identified the accused as well as correctly disclosed the registration number of the offending bus as DL1PB9731. Both these witnesses were crossexamined and discharged.
13.After closure of prosecution evidence, statement of the accused was recorded under Section 313 of Code of Criminal Procedure, 1973. Incriminating evidence was put to the accused. He denied all the allegations and stated that he is innocent and has been falsely implicated in this case. Accused opted not to lead any evidence in his defence.
14.Arguments advanced by Ld. APP for State as well as accused are heard.
15.Ld. APP has argued that by the testimony of PW1, the prosecution has proved the guilt of the accused. He further FIR No. 84/2009 Page No. 6 of 24 submits that the testimony of PW1 finds corroboration with the testimony of other prosecution witnesses and hence accused shall be convicted.
16.Counsel for accused has filed written submissions wherein it is stated that only eyewitness PW1 is a planted witness. From the testimony of PW1, it is clear that even after witnessing the accident, he did not made any call to police and neither removed the injured to hospital. PW1 has himself stated that he does not know the name of the PCR incharge who took the injured to DDU Hospital. There is no DD entry or duty roster produced by the prosecution to show that on the date of accident, PW1 was assigned patrolling duty of the concerned area and he was present there. As per testimony of PW1, number of public persons gathered at the spot but no member of the public was joined in investigation or cited as a witness in the present case. As per statement of PW1, he has handed over the accused to IO at 6.20 pm. However, as per the arrest memo, accused has been arrested on 17.3.2009 at about 12.25 am. Therefore, there are major FIR No. 84/2009 Page No. 7 of 24 contradictions which shatters the testimony of PW1 and same is not trustworthy. In this regard, counsel for accused has relied upon the judgment in the case of Hemraj Vs. State of Haryana 2005 (2) ACR 1336 (SC). It is further argued by the counsel for accused that as per the testimony of PW7 HC Ram Kishan, he went at the spot after receiving the call at 6.15 pm but does not mention about the presence of eyewitness at the spot which makes the presence of HC Pyare Lal at the spot doubtful. It is further contended that as per the testimony of PW10 Record Clerk Ajay Kumar, Dr. Mohd. Masood has conducted the post mortem but he has not been examined and therefore the post mortem report cannot be relied upon as stated in Pal Singh Vs. State of Punjab 1995 Crl. LJ 3596. Further Ld. Counsel has pointed various contradictions in the testimony of PW11 and PW12. He has stated that as per the testimony of these witnesses, it will be clear that they reached at the spot even before receiving DD No.34A regarding information of accident at the police station. There are various contradictions such as the time of arrest FIR No. 84/2009 Page No. 8 of 24 and the manner in which accused was arrested and hence in these circumstances, it is argued that accused is entitled to be acquitted.
17.I have considered the rival contentions and have carefully perused the record.
18.Accused has been charged for committing offences under Sections 279 and 304A of Indian Penal Code. Both the offences are distinct in nature and as such both of them shall be dealt with separately.
OFFENCE UNDER SECTION 279 OF INDIAN PENAL CODE, 1860
19.In order to prove the offence under Section 279 of Indian Penal Code, 1860, following requisites have to be proved by the prosecution beyond reasonable doubt.
(a) Accused was driving the vehicle on a public place at the time of accident;
(b) The vehicle was being driven in such a rash and negligent manner such as to endanger human life or likely to cause hurt or injury to any person.
FIR No. 84/2009 Page No. 9 of 24
20. In order to prove its case, prosecution has to prove firstly that the accused was driving the offending bus on the date of the accident. In order to prove the said fact, prosecution has examined PW1 HC Pyare Lal as the eyewitness who had seen the accused driving the offending bus at the time of accident and he has also deposed that public persons had caught the accused at the spot. Further a notice under Section 133 of Motor Vehicles Act was served upon the owner of the offending bus who has been subsequently examined as PW4 in the Court. PW4 has deposed in the Court on oath that it was the accused who was driving the offending bus at the time of accident. With respect to this aspect, the defence taken by the accused as stated by him in the statement under Section 313 of Code of Criminal Procedure is that he was not driving the offending bus at the time of accident. The offending bus was parked outside the office of PW4. On 16.3.2009, accused reported to the office of PW4 at 10.45 pm as his duty had to start from 11 PM for going to Haridwar on that day. But after reaching office at about 12.15 am on the FIR No. 84/2009 Page No. 10 of 24 intervening night of 16/17.3.2009, he was taken to PS Janak Puri by his employer where he signed two blank papers. Accused has not led any evidence to prove the said fact. He has not even placed on record any document or the attendance register showing that his duty had to start from 11 pm on 16.3.2009. Further PW4 who has deposed on oath that on the date of accident, the accused was driving the offending vehicle has not been crossexamined by the accused. It is settled law that if the witness has not been crossexamined on the facts stated in examinationinchief then the same are deemed to be admitted. The depositions of PW4 has gone unrebutted and unchallenged.
21.Hence when accused has failed to crossexamine PW4 despite opportunity on the fact that he was driving the offending bus, the said fact is deemed to be admitted by the accused. Further subsequently also, the accused has merely stated in his statement under Section 313 of Code of Criminal Procedure that he was not driving the offending bus but has not produced any evidence in this regard. Even PW1 HC Pyare Lal has stated that accused was FIR No. 84/2009 Page No. 11 of 24 present and was driving the offending bus at the time of accident. Hence the prosecution has proved beyond reasonable doubt that it was the accused who was driving the offending bus at the time of accident.
22.Secondly, the prosecution has to prove that accused was driving the offending bus in rash and negligent manner and while driving the offending bus in said manner, he had hit against the motorcycle of the deceased.
23. In order to prove the rash and negligent driving of the accused, prosecution has examined PW1 HC Pyare Lal who is the eye witness to the incident. PW1 HC Pyare Lal has stated that accused was driving the offending bus at a high speed and in rash and negligent manner. PW1 has further deposed that accused while so driving struck the offending bus with the motorcycle from behind. Ld. Counsel for accused has pointed out certain contradictions in the testimony of PW1. He has further stated that testimony of PW1 cannot be considered owing to the contradictions and has referred to the judgment of Hem Raj & FIR No. 84/2009 Page No. 12 of 24 Ors. Vs. State of Haryana 2005 Crl. LJ 2152 in this regard. In Hemraj's case (supra) which involved offence under Section 302 of Indian Penal Code, the Hon'ble Supreme Court has stated that the prosecution has examined only one witness related to the deceased. It was opined that the independent witnesses despite being available have not been examined. The Hon'ble Supreme Court has discarded the testimony of the witnesses because they were related to the deceased. But the facts of the present case are different from the facts of the above stated judgment. In the present case, PW1 HC Pyare Lal is a police official who is neither related to the deceased nor to the accused. There is no motive which can be attributed to PW1 so as to falsely implicate the accused in the present case. PW1 has been crossexamined at length but he has maintained his stand during crossexamination. Further Ld. Counsel has argued that despite being at the spot, PW1 neither apprehended the accused nor called the PCR Van. It is settled law that testimony of a witness is to be read as a whole as observed by the Hon'ble Supreme Court in Kulwinder Singh FIR No. 84/2009 Page No. 13 of 24 Vs. State of Haryana 2011 (5) SCC 258. In the present case also, if the entire testimony of PW1 is to be read, it comes out that PW1 has stated that till the time he reached at the site of the accident, one public person had already called the PCR who took the injured to the hospital. It is further stated by PW1 that as soon as he saw the accident, he apprehended the accused and made a complaint at the local police station. The said testimony of PW1 explains the conduct of PW1 and there are no material contradictions in the testimony of PW1 so as to render his evidence unreliable. In the case of Chagalamari Subbaiah & Ors. Vs. State of A.P., 2010 Crl. LJ 655 has observed as under: "It is settled law that merely because there are disputes between the parties or that the prosecution witnesses are on inimical terms with the accused, their evidence need not be discarded. There will be minor contradictions and omissions in the evidence of the natural witnesses and therefore no importance need be given to such minor contradictions and omissions."
24.Hence the plea of the accused that testimony of PW1 cannot be relied upon is not tenable.
25. Now when it has been established that testimony of PW1 is FIR No. 84/2009 Page No. 14 of 24 reliable and can be considered by the Court, it is to be seen whether the manner in which the offending bus was being driven by the accused, as narrated by PW1 in his evidence, will amount to rash and negligent driving as required under Section 279 of Indian Penal Code. The test of determining whether the driving was rash and negligent has been laid down by the Hon'ble High Court of Delhi in Niranjan Singh Vs. State 1997 Crl. LJ 336. It has been observed as under : "In a case of this nature, the test is whether the prosecution has proved that : (i) the accused was driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to the property. (ii) in driving the vehicle in that manner the accused did so without having given any thought to the possibility of there being any such risk or, having recognized that there was some risk involved, had nonetheless gone on to take it; and, (iii) the rash or negligent act of the accused was the proximate cause of the death of the deceased."
26. Further, in the case of B. Nagabhusham Vs. State of Karnataka 2008 (5) SCC 730, it was held that the maxim 'res ipsa FIR No. 84/2009 Page No. 15 of 24 loquitur' (the thing speaks for itself) can be applied in cases under Section 279 of Indian Penal Code, wherein it was observed that the dead body of the deceased child was found two feet away from the bus and three feet away from the pavement on the right side of the road and no mechanical failure was reported. Report of spot of mazahar revealed that the bus was dragged for about 20 to 25 feet after brake was applied and statement of PW1 is similar as regards several injuries. In these circumstances, it was held the maxim 'res ipsa loquitur' (the thing speaks for itself) can be applied in criminal cases under Sections 279 and 304A Indian Penal Code.
27.Hence in the present case, as per the testimony of PW1, accused was driving the offending bus at a high speed. Though it is a settled law that mere high speed will not amount to rash and negligent driving but the accused has been driving the offending bus at high speed on a public road at about 6.10 pm which itself shows rash and negligent driving on the part of the accused. As per the testimony of PW1, the offending bus had struck the FIR No. 84/2009 Page No. 16 of 24 motorcycle of deceased from behind. The said fact is also clear from the site plan Ex.PW12/B and the mechanical inspection reports of the offending bus and motorcycle of deceased which are Ex.PW5/A and Ex.PW5/B. It has been held by the Hon'ble High Court of Delhi in the case of Paras Nath Vs. State of Delhi 2003 (3) JCC 1500 that in case a vehicle has been hit from behind then the negligence can be clearly attributed to the driver of the offending vehicle.
28.Thus from the above judgment, it is clear that when a vehicle has struck from behind, then the said act itself speaks for the rash and negligent driving of the driver. In the present case also, PW1 has categorically stated that the offending bus has hit the motorcycle from behind and the same was driven at a high speed. Hence all these circumstances, taken together, speaks for itself for the rash and negligent driving of the accused. Hence in my considered opinion, the prosecution has successfully proved the guilt of accused for offence under Section 279 of Indian Penal Code. OFFENCE UNDER SECTION 304A OF INDIAN PENAL CODE, FIR No. 84/2009 Page No. 17 of 24 1860 Section 304A of Indian Penal Code "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 both."
29. The essential ingredients to prove the offence under Section 304A of Indian Penal Code are as under :
(i) That the act of accused is rash or negligent; and
(ii) By such rash or negligent act, death has been caused.
30. In order to hold the accused guilty for offence under Section 304A of Indian Penal Code, the prosecution has to prove that the death of deceased was caused due to the rash and negligent act of the accused. In the present case, the MLC and PostMortem Report have been placed on record. MLC No. 4712 has been duly proved by the testimony of PW8 Dr.Alok who has examined the deceased. PW8 in his examinationinchief has deposed that deceased was admitted with alleged history of road traffic accident and was declared brought dead. PW8 has not been cross FIR No. 84/2009 Page No. 18 of 24 examined despite opportunity.
31. The postmortem report of deceased has not been identified by the Doctor who has prepared the same but the Record Clerk who has been examined as PW10 has identified the signatures of concerned Doctor. Here Ld. Defence Counsel has raised an objection stating that as the postmortem report has not been proved by the Doctor conducting postmortem, therefore, the same cannot be considered as held in Pal Singh vs. State of Punjab 1995 Crl. LJ 3596. In Pal Singh's case the offence involved was under Section 376 of Indian Penal Code. The Doctor was available who had come to the Court premises. It is in view of the no objection given by the Defence Counsel regarding the admissibility of postmortem report, the public prosecutor had sent the Doctor unexamined. Hence it was held that in these circumstances, the postmortem report cannot be considered. However, it has been held in the case of Mohd. Islam vs State (NCT of Delhi) 93 (2001) DLT 764 as under : FIR No. 84/2009 Page No. 19 of 24 "So far as the question of nonappearance of Dr. Neeraj Gupta is concerned, his signatures on MLC Ex.PW1/A stood proved by the testimony of Mr. A.R.Mathew (PW1) i.e. record clerk, LNJP Hospital. As per Mr. Mathew (PW1), Dr. Neeraj Gupta and Dr. Neeraj Kalra left their jobs and their whereabouts were not available nor know. In these circumstances, prosecution examined Mr.A.R. Mathew (PW1) to prove the signatures of Dr. Neeraj Gupta and that of Dr. Kalra. Mr. Mathew was acquainted with their signatures. He identified the signature of Dr. Neeraj Gupta on the MLC Ex.PW1/A at point "A". Since the doctor was not available and his whereabouts were not known, it does not mean the statement recorded by the said doctor would become a waste paper. In the absence of the said doctor prosecution was left with no alternative but to prove his statement either by examining another doctor and if no other doctor acquainted with his signature then through the testimony of the person who was acquainted with the doctor's signature who had seen him writing and signing. Mr. A.R. Mathew (PW1) was such a person. He identified Dr. Gupta's, signatures on the MLC Ex.PW1/A."
32.In the case of Abdul Hamid Vs. State (Delhi Admn.) 2001 (59) DRJ 777, it has been held as under : "The report was recorded by Dr. Rana Raja Ram, Sr. Gynaecologist and Dr. Arvind Meshram, ACMO of the hospital. Unfortunately, both of their left the hospital leaving no trace of their present whereabouts as a consequence the prosecution called R.S.Sharma, Record Clerk of the GTB Hospital and examined as PW10. He has proved the MLC Ex.PW10/A and Ex.PW10/B and identified the signatures of Dr. Rana Raja Ram. He has stated that the MLC was prepared by Dr. Arvind Meshram and he has seen him writing and signing and has identified his signatures at pointA. He further stated that patient was referred to a senior gynaecologist and was examined by Dr. Rana Raja Ram who gave his opinion at pointB. He also identified writing and signatures of Dr. Rana Raja Ram FIR No. 84/2009 Page No. 20 of 24 Ex.PW10/B. In the cross examination he has categorically stated that both the doctors have left the hospital and their present addresses and whereabouts are not known and it is also not available in the administrative office of the hospital."
33. Hence in view of the above cases, firstly the facts in Pal Singh's case (supra) are different from the facts of the present case. Further the Hon'ble High Court in the above cases have categorically held that if the Doctor who has conducted the post mortem report is not available then the same can be proved by the testimony of record clerk and merely because the same has not been proved by the Doctors shall not render it inadmissible in evidence. In the present case, PW10 in his testimony has specifically deposed that Dr. Mohd. Masood who had conducted the postmortem has left the hospital in 2009 and his present whereabouts are not known. Further PW10 has deposed that he can identify the writing and signatures of the Doctor as he has seen him signing and writing.
34.Furthermore, PW10 has not been crossexamined by the accused despite opportunity. It is only during the stage of final arguments FIR No. 84/2009 Page No. 21 of 24 that this objection has been raised by Ld. Defence Counsel. In the case of Phool Kumar Vs. Delhi Administration AIR 1975 SC 905, it has been held by the Hon'ble Supreme Court as under : "The report of the expert was used as evidence by the prosecution without examining him in Court. Neither Court thought it fit nor the prosecution or the accused filed any application to summon and examine the expert as to the subject matter of his report. The court was bound to summon the expert if the accused would have filed any such application for his examination. That not having been done the grievance of the appellant apropos the report of the expert being used without his examination in court made in the High Court and reported in this Court had no substance."
35.Hence in the present case also, PW10 was not crossexamined and neither any objection was taken by Ld. Defence Counsel at the time of examination of PW10 nor the accused has made effort to summon the Doctor conducting postmortem in defence evidence. Hence the objection being taken for the first time at the stage of final arguments shall not be considered.
36.Therefore, in view of above precedents, the plea of counsel for accused that postmortem report cannot be considered by the Court is not tenable. The MLC Ex.PW8/A which has been duly proved, also states that the deceased was brought dead in the FIR No. 84/2009 Page No. 22 of 24 hospital with alleged history of road traffic accident. PW1 HC Pyare Lal has stated that deceased was struck by the offending bus which was being driven by the accused. Here, Ld. Counsel has again taken a plea that the testimony of PW1 is not reliable, therefore, it cannot be said that the rash and negligent driving of the accused was proximate cause of the death of deceased which is an essential ingredient as held in Vasudev Naik Vs. State 2014 (3) BomCR (Cri) 495. However, as discussed above at length, there is no reason to doubt the testimony of PW1. Hence the facts of Vasudev Naik's case (supra) are not applicable in the present case. PW1 has unequivocally deposed that it was the accused who had struck the offending bus from behind thereby causing death of deceased Amit Chamoli. It has already been proved that the accident occurred due to the negligence of the accused. Hence the guilt of the accused for the offence under Section 304A of Indian Penal Code is also proved beyond reasonable doubt.
37. In view of the aforementioned facts and circumstances, accused is accordingly convicted of the offences under Sections 279 and FIR No. 84/2009 Page No. 23 of 24 304A of Indian Penal Code.
38.SHO, PS Janak Puri is directed to file Victim Impact Report of the present matter in terms of judgment of the Hon'ble High Court of Delhi in Satya Prakash Vs. State Crl. Rev. Petition No. 338/2009, on the next date of hearing.
(Sugandha Aggarwal) Chief Metropolitan Magistrate (West) Tis Hazari Courts : Delhi Announced in the open court on 10th day of October, 2014.
FIR No. 84/2009 Page No. 24 of 24