Delhi District Court
Gagan Sharma vs State on 27 November, 2015
IN THE COURT OF SHRI AMIT BANSAL
ADDITIONAL SESSIONS JUDGE04, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
Unique I D No. : 02403R0044792015
Criminal Appeal Number : 3/1/15 dated 10.03.2015
FIR No. : 100/2004
PS: : R.K.Puram
U/S: : 279/304A IPC
Gagan Sharma,
S/o Sh. Som Dutt Sharma,
R/o 2, Centre Road,
Bhogal, Jangpura,
New Delhi. .....Appellant
versus
State .....Respondent
Appeal received by Court : 10.03.2015
Arguments concluded on : 19.11.2015
Date of judgment : 27.11.2015
JUDGMENT
1. By way of present appeal, the appellant herein has challenged the judgment of conviction dated 10.01.2014 passed by the court of Sh.
CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.1/18Prashant Sharma, Ld. M.M., PHC, New Delhi whereby the appellant/accused was convicted for the offences punishable under sections 279/304A IPC and the consequent order on sentence dated 12.02.2015 whereby the appellant/convict was awarded a sentence to undergo SI for 03 months for commission of offence punishable under section 279 IPC with fine of of Rs. 500/ and in default of payment of fine to undergo SI for one month. The appellant /convict was further sentenced to undergo SI for six months for offence punishable u/s 304A IPC with fine of Rs. 1000/ and in default of payment of fine to undergo SI for two months. Vide said impugned order on sentence dated 12.02.2015, the learned trial court also directed the convict to pay a compensation in the sum of Rs. 50,000/ to the parents of the deceased. The benefit of section 389 Cr.P.C was also given to the convict and the impugned order on sentence dated 12.02.2015 would show that the fine amount was paid by the appellant and the compensation amount of Rs. 50,000/ was also paid by him to both the parents of the deceased.
2. Briefly stated, the facts of the case are that on 12.02.2004, Ct. Narender informed the police at PP Nanak Pura that one child namely Himanshu son of unknown ( herein after referred as victim/deceased ) had met with an accident which had occurred at Ring Road near Gurudwara Moti Bagh and had been brought to AIIMS hospital for medical treatment. The said information was reduced to DD no. 18 dated 12.02.2004 at PP Nanak Pura, New Delhi and copy of the same CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.2/18 was given to ASI Rajender Singh (IO), who reached at AIIMS hospital with Ct. Vijay, collected MLC no. 14347/04 dated 12.02.2004 pertaining to the victim/deceased, in which the victim was declared brought dead with history of road traffic accident. At the hospital, Smt. Vimla (PW3) i.e the maternal grand mother of the deceased met him and her statement Ex PW3/A was recorded.
3. In the said statement Ex PW3/A dated 12.02.2004, Smt. Vimla stated that she had come to meet her daughter Smt. Geeta whose mother in law being ill was admitted in NDMC, Moti Bagh hospital. She further stated that on 12.02.2004 she along with her grand son Himanshu (victim/deceased) at about 02.00 p.m were going to see the mother in law of her daughter, at that time when they reached at Ring Road near Gurudwara, then the traffic signal light turned green, they were crossing the road, the driver of the motorcycle no. DL4S AD 9674 (offending vehicle) while driving the same at a high speed and in a negligent manner came from Moti Bagh Fly Over, hit the same with the victim/deceased, due to the impact, the victim fell on the road, the motorcycle driver stopped the vehicle and she along with the driver of the offending motorcycle went to the hospital in a TSR and the motorcyclist fled from the hospital.
4 IO prepared a rukka Ex PW5/A on the said statement Ex PW3/A and sent Ct. Vijay to Police Station for registration of the FIR. After the registration of the FIR, the IO prepared the site plan Ex PW5/B, got CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.3/18 conducted the postmortem of the deceased and handed over the dead body of the deceased to its legal representatives vide memo Ex PW5/A. IO also issued notice u/s 133 of M.V.Act Ex PW5/F to the registered owner of the offending vehicle, seized the driving licence of the accused and other documents of the offending vehicle, got the mechanical inspection report of the offending vehicle Ex PW5/H, recorded the statement of the witnesses, got conducted TIP proceedings of the accused wherein the accused refused to join the TIP proceedings and after completing the investigation filed the charge sheet u/s 279/304A IPC against the accused/appellant.
5. The accused/appellant duly appeared and contested the case against him on merits. Notice of the accusation u/s 251 Cr.P.C pertaining to section 279/304A IPC was served upon the appellant/accused on 04.02.2005 by the learned trial court to which he pleaded not guilty and claimed trial.
6. Prosecution in order to prove its case against the appellant/convict had examined total six witnesses.
7. PW1 Dr. M.G. Jayan was deputed by Dr. D.N. Bhardwaj, Asstt. Professor, AIIMS to appear and depose in place of Lt. Col. (Dr.) Abhijeet Rudra. The postmortem report dated 13.02.2004 qua the deceased has been proved as Ex PW1/A. The cause of death in the postmortem report Ex PW1/A has been opined as shock as a result of multiple injuries caused by blunt force which was possible in the above mentioned CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.4/18 circumstances (road traffic accident) and that all the injuries were antemortem in nature.
8. PW2 H.C. Satpal is a formal witness being the duty officer. He deposed that on 12.02.2004, he was posted at PS R.K. Puram and was working as Duty Officer there from 04.00 p.m. to 12.00 mid night. He deposed that on that day he received rukka Mark A through PW4 H.C. Vijay Singh which was sent by PW5 SI Rajender Singh (IO of the case) and on the basis of the said rukka, he registered the case FIR u/s 279/304A IPC. The copy of the FIR has been proved as Ex PW2/A.
9. PW3 Smt. Vimla is a material witness for the prosecution being the alleged eye witness of the case incident. The statement of PW3 dated 12.02.2004 upon which the case FIR was registered has been proved as Ex PW3/A bearing her signatures at point A. Her testimony would be discussed in detail at the appropriate stage in the judgment.
10. PW4 H.C. Vijay Singh has deposed to the effect that on 12.02.2004 on receipt of DD no. 18, he along with PW5 went to AIIMS hospital where they met PW3 i.e. the grand mother of the deceased. He deposed that on the MLC of the deceased, it was noted that the deceased had been brought dead. He deposed that IO/PW5 recorded the statement of PW3, a rukka was prepared and it was handed over to him for the registration of the case FIR. After getting the FIR registered, he handed over the copy of the FIR and rukka to PW5 at Gurudwara Red Light, PP Nanakpura, Delhi. He further deposed that on 20.02.2004, CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.5/18 he joined the investigation of the case and the offending vehicle i.e. motorcycle no. DL4S AD 9674 was taken into police possession vide seizure memo Ex PW4/A bearing his signatures at point A. The arrest memo and personal search memo of accused have been proved as Ex PW4/B and Ex PW4/C respectively, both bearing his signatures at point A. The driving licence of the accused/appellant was taken into police possession vide seizure memo Ex PW4/D bearing signatures of PW4 at point A. In cross examination by ld defence counsel, PW4 inter alia did not remember whether there was any zebra crossing on the red light in question or not.
11. PW5 Retired SI Rajender Singh is the IO of the case. He deposed to the effect that on 12.02.2004, he on receipt of DD no. 18 went along with PW4 to Safdarjung hospital where he met with the complainant PW3. He deposed that PW3 informed him that accused had shifted them in a TSR to hospital and had escaped from the hospital. PW5 recorded the statement of PW3, prepared a rukka Ex PW5/A and handed it over to PW4 for getting the case FIR registered. He deposed that thereafter, he along with PW3 reached at the spot i.e. Ring Road, Nanak Pura, New Delhi, where he prepared the site plan Ex PW5/B. He deposed that after getting the case FIR registered, PW4 came back at the spot and handed over the copy of FIR and original rukka to him. The postmortem of the deceased was got conducted on 13.02.2004 and he recorded the dead body identification statements Ex CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.6/18 PW5/C and Ex PW5/D. After the postmortem, the dead body of the deceased was handed over to the relatives vide memo Ex PW5/E. The notice u/s 133 M.V Act to the registered owner of the offending vehicle has been proved as Ex PW5/F. He deposed that on 20.02.2009 ( should be 20.02.2004), the accused was produced by his father along with the case property and was arrested vide arrest memo Ex PW4/B. The mechanical inspection of the offending vehicle was conducted on the request Ex PW5/H of the IO. The accused refused to participate in the TIP proceedings on 21.02.2004.
In cross examination, PW5 inter alia deposed that the red light and zebra crossing were present at the spot of accident. After seeing the site plan Ex PW5/B, PW5 deposed that he had not mentioned the zebra crossing and red light in it. He deposed that he had not taken signatures of PW3 and PW4 on the site plan Ex PW5/B. He further deposed that there was footpath at the spot of accident but he did not mention the same in the site plan Ex PW 5/B.
12. PW6 ASI (Retired) Devender conducted the mechanical inspection of the offending vehicle i.e. motorcycle bearing no. DL4S AD 9674 vide report Ex PW5/H. In cross examination by ld defence counsel, PW6 deposed that he had not mentioned the fact that the damage on the said bike was fresh and as per his record damage of the bike was 56 days prior to the date of the inspection. He further deposed that he had not mentioned the aforesaid observation in his CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.7/18 aforesaid report.
13. The accused in his statement under section 313 Cr.P.C as recorded on 03.10.2013 stated that the accident was caused by some other vehicle and he helped the injured by taking him to the hospital. He also stated that the present case was made out against him on the advise of the police officers, since the real culprit could not be traced out. He stated that he is innocent and has been falsely implicated in the present case. He also preferred not to lead any defence evidence.
14. The ld. trial court after hearing the arguments of ld. Addl. PP for the State as well as ld. defence counsel, vide the impugned judgment convicted the appellant/accused after holding that the version of the accused that the victim child had left the hand of PW3 and was running on the road, when the case accident occurred did not take away the responsibility of the accused to drive the offending vehicle with grave caution. The ld trial court came to the conclusion that PW3 was properly crossing the road as there was green light on her side and red light on the side of the accused and by crossing the red light, the accused had driven his vehicle in a rash manner as he should have foreseen the possibility of some pedestrian crossing the road. The ld trial court further held that the running of the child on the road made no difference to the case as it was the right of the victim child to walk on the road at the relevant time as there was green light at the spot and even otherwise the accused did not justify or give any reason as to CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.8/18 why he was crossing the red light. The ld. trial court thus believed the testimony of PW3 and came to the conclusion that the accused had committed the accident in question after crossing the red light which he should not have done. The ld trial court also came to the conclusion that the non mentioning of red light and zebra crossing at the spot did not go to the root of the matter and held that the red light and zebra crossing were in fact present at the spot. The ld trial court also held that when the accused refuted that the accident in question was not caused by him then the onus shifted upon him to prove as to who had committed the accident in question and that he did not discharge the said onus to his disadvantage. Thus the appellant/convict was convicted by the ld trial court for commission of the offence punishable u/s 279/304A IPC
15. The ld counsel for the appellant / convict has argued that the learned trial court failed to consider the material available on record and passed the impugned judgment mechanically. He argued that the ld trial court failed to appreciate that even as per the testimony of PW3, the child (since deceased) left her finger while running away and met with an accident. He argued that the ld trial court falsely put onus upon the accused to prove as to which vehicle actually caused the case accident as it was always the onus of the prosecution to prove said fact beyond reasonable doubt. He argued that the appellant had only helped to take the injured to the hospital. He further argued that had there been red light or zebra crossing at the spot of the accident, the IO must CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.9/18 have mentioned the same in the site plan Ex PW5/B. He contended that there was no red light or zebra crossing at the spot and the appellant did not jump any red light and caused the accident. He further referred to the testimony of PW6 and argued that the mechanical inspection report Ex PW5/H do not mention any fresh damage and it is not believable that PW6 would not mention in the report that the damage on the bike was 56 days prior to the date of inspection dated 20.02.2004. He also referred to the judgment of Hon'ble Supreme Court of India in case titled as Mahadeo Hari Lokare Vs. State of Maharashtra, (1972) 4 SCC 758 and argued that if a person suddenly crosses road without taking a note of approaching vehicle, the driver however slowly he may be driving, may not be in a position to save the accident. He also referred to the judgment of Hon'ble Delhi High Court in case titled as Abdul Subhan Vs. State (NCT of Delhi ), 2006 (133) DLT 562. He argued that the benefit of doubt must go in favour of the accused and prayed that the impugned judgment and order on sentence be set aside.
16. Ld. Addl. PP for State has opposed the aforesaid submissions of ld. counsel for accused/appellant and contended that the impugned judgment and order on sentence were based on sound reasoning after proper appreciation of facts and evidence. He further argued that PW3 is an eye witness of the case incident and from her testimony the offence under section 279/304A IPC is proved beyond reasonable doubt against the accused/appellant. He argued that the accused/appellant jumped CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.10/18 the red light and caused the case accident while driving the motorcycle in a rash and negligent manner. He further argued that the joint reading of testimonies of PW3, PW4 and PW5 would show that the prosecution has proved its case beyond reasonable doubt against the appellant/accused. He further argued that there is no illegality or infirmity in the impugned judgment.
17 I have heard the arguments on appeal and perused the record including trial court record.
18. It is pertinent to note that during the pendency of the appeal, the parents of the deceased child Master Himanshu made a joint statement on 17.10.2015 that they had received Rs. 50,000/ as compensation from the appellant/convict in terms of order on sentence dated 12.02.2015 and they had further received Rs. 90,000/ from ld. MACT. They further stated that they have further received Rs. 1,75,000/ from the appellant /convict i.e they total received Rs. 3,15,000/ as compensation in this case and they do not want any further compensation in the present matter as they had been adequately compensated.
19. To secure the conviction in a vehicular accident case, the prosecution has to prove all the following ingredients beyond reasonable doubt: (A) That an accident was caused with a particular vehicle. (B) That accused was driving that particular vehicle which caused the CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.11/18 accident.
(C) That accident had taken place due to rash or negligent driving of the accused facing trial in the court.
(D) That injury suffered by an injured or death of deceased was the direct result and consequence of that accident.
20. Keeping in view the facts and circumstances of the case, all the above said ingredients are interconnected and are being taken up together for discussion.
21. The case of the prosecution mainly rests upon the testimony of PW3 Smt. Vimla, who is stated to be an eye witness of the case incident and is the maternal grand mother of the deceased child. As per the postmortem report Ex PW1/A, the deceased child was aged about ten years and he died due to shock as a result of multiple injuries, antemortem in nature, caused by blunt force possible due to road traffic accident.
PW3 has deposed in her examination in chief that about four years back she was going along with her daughter's son ( Himanshu ) to see the mother in law of her daughter who was admitted in a hospital at Moti Bagh near Gurudwara, Nanakpura and while crossing the road, they were hit by the accused, motorcycle rider. She further deposed that they were crossing the road having seen the green light and that the accused crossed the red light and hit the child. She further deposed that the child was carried to AIIMS and police recorded her statement Ex CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.12/18 PW3/A. In cross examination by ld defence counsel, PW3 inter alia deposed that the police did not take her to the place of occurrence. She further deposed that the child was holding her finger and was not in her lap. She admitted that the child left her finger while running away and met the accident. She denied the suggestion that there was no zebra crossing at the spot. She admitted that there is a divider in between over which there is a railing. She denied the suggestion that the child was not hit by the accused or that in fact the child was injured by some other vehicle or that the case was made out against the accused on the advise of the police as the accused had helped her to take the injured to the hospital. She admitted that she was standing along with child on the footpath / side of the road and that there were large number of vehicles plying on the road. She specifically deposed that she was standing on the side of the road when the accident took place and the child got his hand released from her hand and went on the road. She denied the suggestion that there was no red light crossing the road or that accused did not jump the red light or that he did not cause the accident in the manner narrated by her.
22. The above said testimony of PW3, the only alleged eye witness as examined by the prosecution, would show that PW3 has specifically admitted that thee was a divider in between over which there is a railing, she was standing along with the child victim on the footpath / CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.13/18 side of the road, large number of vehicles were plying on the road, the child was holding her finger, the child/ deceased left her finger while running away, met with the accident, she was standing on the side of the road when the accident took place and the victim got his hand released from her hand and went on the road. It is thus an admitted case of the prosecution itself that the said road was a busy road, large number of vehicles were plying on the road and the deceased child got released his finger from the hand of PW3, went on the road (a very busy road where large number of vehicles were plying ) while running away and met with an accident on the road. This would show that the victim child suddenly ran over the road after getting released his finger from the hand of PW3 and suddenly met with an accident of the road. It is a settled law that if a person suddenly crosses the road, then the driver, however, slowly he may be driving may not be in a position to save the accident and therefore in the said circumstances it would not be possible to hold that the accused /appellant was negligent in driving the said offending vehicle. My views are substantiated by the judgment of Hon'ble Supreme Court of India in Mahadeo Hari Lokre ( Supra). Moreover, in the present case, the deceased was a child aged about ten years and he might have suddenly ran on the busy road without taking into consideration any approaching traffic. In view of the above said facts of the case the ld trial court committed an illegality while coming to a conclusion that the accused/appellant was driving the vehicle in a CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.14/18 rash or negligent manner at the time of the accident.
23. As far as the existence of red light or zebra crossing at the spot is concerned, the case of the prosecution is that there are red light and zebra crossing at the spot and that the accused / appellant jumped the red light and hit the deceased child with his offending motorcycle. In this regard, PW3 has deposed to the effect that the accused crossed (jumped) the red light and hit the child. She also denied the suggestion that there was no zebra crossing at the spot. PW4, on the other hand, has deposed in his cross examination that he did not remember whether there was any zebra crossing there or not. PW5/IO has deposed to the effect that there was red light and also zebra crossing at the spot. PW5 in his cross examination has however deposed that he had not mentioned the zebra crossing and red light in the site plan Ex PW5/B. It is very strange because if there had been red light or zebra crossing at the spot then IO would definitely have mentioned them in the site plan Ex PW5/B, moreso, when the case of the prosecution is itself that the appellant / accused jumped the red light at the spot and hit the deceased child/victim with the offending motorcycle. PW4, as stated above also could not say if there was any zebra crossing at the spot. It is further an admitted fact that the site plan Ex PW5/B did not bear the signatures of PW3 and PW4. In these circumstances, the prosecution has failed to prove beyond reasonable doubt that there were red light and zebra crossing at the spot and the accused / appellant after jumping CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.15/18 the red light hit the child / victim causing his death. In this regard, it is also pertinent to note that there is a material contradiction in the testimony of PW3 on one hand and PW4 and PW5 on the other hand as PW3 has deposed that the police did not take her to the place of occurrence whereas PW5 has deposed that after preparing the rukka, he and PW3 reached the spot where he prepared the site plan Ex PW5/B. Similarly, PW4 has also deposed that the complainant accompanied the IO / PW5 when he reached the Nanak Pura red light. This would show that as per the testimony of PW3 she did not even visit the spot with the IO and did not extend any help in preparation of the site plan, which is in total contradiction to the testimony of PW4. The ld trial court thus committed an illegality while coming to the conclusion that there was red light and zebra crossing at the spot, whereas in fact, the prosecution has failed to prove beyond reasonable doubt that there were red light and zebra crossing at the spot. In the said circumstances, the testimony of PW3 would also become unreliable to prove beyond reasonable doubt that the accused/appellant jumped the red light and hit the deceased child with the offending motorcycle.
24. The mechanical inspection report Ex PW5/H would also show that no fresh damage has been mentioned by PW6 on it qua the offending vehicle in the mechanical inspection report dated 20.02.2004. PW6 in his cross examination has admitted that he had not mentioned the said fact in the mechanical inspection report, however, has deposed CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.16/18 that the damage of the said bike was 56 days prior to the date of the inspection. He further deposed that he had not mentioned the aforesaid observation in his aforesaid report. The ld. trial court held that the observation of the witness was in sync with the prosecution story as the mechanical inspection was conducted by PW6 on 20.02.2004 i.e after a gap of about 78 days from the date of the accident. It is an admitted fact, however, that PW6 has not mentioned in the mechanical inspection report Ex PW5/H that the damage of the said bike was about 56 days prior to the date of the inspection. The prosecution has not explained as to why PW6 has not mentioned the said fact while preparing the mechanical inspection report Ex PW5/H. The ld trial court thus further committed an illegality while coming to a conclusion that the mechanical inspection report Ex PW5/H corroborated the prosecution story. In fact the prosecution has failed to prove any damage to the offending vehicle at the time of case accident as this fact has not specifically been mentioned in the mechanical inspection report Ex PW5/H. The prosecution in these circumstances has failed to prove beyond reasonable doubt that the case accident was in fact caused by the offending vehicle being driven by the accused. As discussed above, the prosecution has also failed to prove that the case accident had taken place due to rash or negligent driving of the appellant/accused facing trial in the court. The benefit of doubt goes in favour of the accused/convict/appellant and he is entitled to acquittal in the present CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.17/18 case.
25. In view of the foregoing discussion, the conviction of the appellant/accused under section 279/304A IPC vide impugned judgment dated 10.01.2014 is not sustainable as per law and he is entitled to acquittal in the present case. Accordingly, the appeal is allowed and the impugned judgment dated 10.01.2015 and the consequent impugned order on sentence dated 12.02.2015 are set aside.
26. The ld trial court is also directed to refund the sentence fine amount of Rs.1500/ as stated to be paid by the appellant/convict/accused as mentioned in the order on sentence dated 12.02.2015.
27. TCR be sent back with copy of the judgment.
28. Appeal file be consigned to record room after completion of all other necessary formalities.
Announced in the open Court on 27.11.2015 ( Amit Bansal ) Addl. Sessions Judge 04, New Delhi District, Patiala House Courts, New Delhi 27.11.2015 CA No. 3/1/15 FIR No. 100/2004 PS R.K.Puram Gagan Sharma vs. State Page No.18/18