Delhi District Court
Sh. Mukh Lal vs State Of Nct Of Delhi on 21 April, 2014
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-01, SPECIAL JUDGE (NDPS)
SHAHDARA DISTT., KARKARDOOMA COURTS, DELHI
Criminal Appeal No. 11/2014
Unique I.D. No. 02402R0078402014
In the matter of :
SH. MUKH LAL
S/o Sh. Bhukan Singh
R/o F-16, Side No. 1, Buland Shahar Road
Ghaziabad, U.P. ..........................Appellant
VS.
STATE OF NCT OF DELHI ......................Respondent
Date of Institution : 13.03.2014 Date of reserving the Judgment in Appeal : 16.04.2014 Date of pronouncement : 21.04.2014 JUDGMENT IN APPEAL
1. This Judgment in Appeal shall dispose of the criminal appeal U/s 374(3)(a) Cr.P.C, preferred by the appellant against the impugned judgment of conviction and order on sentence, dated 10.02.2014 and 25.02.2014 respectively, passed by Ld. CMM, Shahdara, Karkardooma Courts, Delhi, in case FIR No. 276/2000, U/s 279/304-A IPC, PS Vivek Vihar, whereby accused (appellant herein) was held guilty and convicted for offence punishable U/s 279/304-A IPC and was sentenced to undergo RI for two years and to pay compensation/fine of Rs. 80,000/- to LRs of deceased, in default SI for six months.
2. The criminal appeal was accompanied with an application Criminal Appeal No. 11/2014 Page 1 of 12 U/s 389 (3) Cr.PC for bail to the appellant and for suspension of order on sentence during the pendency of the appeal but since appellant failed to deposit the compensation/fine amount, he was taken into custody and was sent to JC on 27.03.2014.
3. I have heard submissions from Sh. Manoj Chauhan and Ms. Protima Parihar, Advocates for the appellant/convict as well as from Sh. Anil Kumar, Additional Public Prosecutor for State. I have also gone through the trial court record.
4. As per appellant, the brief facts of the case are that as per FIR, Ct. Vijay stated that he alongwith Ct. Surender was on patrolling duty in Kasturba Nagar and when they were passing near Barat Ghar, Shakti Video at about 07.50 p.m., one jeep, make Mahindra bearing registration No. HR-51-9451 came from the side of Ambedkar Park in high speed and its driver was driving the jeep in a very rash and negligent manner and hit one pedestrian. The driver was caught hold of by Ct. Vijay and Ct. Surender immediately and on inquiry his name was revealed as Mukh Lal (appellant herein). PCR also reached but injured were shifted to hospital before arrival of the PCR. FIR was registered u/s 279/337 IPC against the accused. Investigation was conducted in the matter. The injured later on died and hence section 337 IPC was converted into section 304-A IPC.
Notice was framed on 08.10.2003 against the appellant U/s 279/304-A IPC to which he pleaded not guilty and claimed trial. Prosecution cited 17 witnesses out of which 10 witnesses were examined and remaining 7 witnesses were dropped by the prosecution which includes IO and Doctors. Examination-in- chief of PW-7 was not complete. Written-arguments as well as Criminal Appeal No. 11/2014 Page 2 of 12 oral arguments were submitted on behalf of the accused/ appellant and Ld. Trial Court passed the impugned judgment and order on sentence.
5. On behalf of the appellant, it has also been submitted by Ld. Counsel that no such offence was committed by the appellant/accused who has been falsely implicated in the present case. The original culprits had ran away alongwith the alleged vehicle but the appellant was apprehended wrongly and was falsely implicated in the present case. Ld. Trial Court passed the impugned judgment in mechanical manner ignoring the evidence on record and without going through the record. The impugned judgment of conviction and order on sentence passed by Ld. Trial Court is based on conjectures and surmises and is liable to be set-aside. In criminal jurisprudence the burden of proof is on the prosecution but prosecution has failed to bring any direct evidence in the present case. FIR was registered on the complaint of PW-10 Vijay Singh and there is major contradiction in his testimony as he failed to depose that he had seen the accused (appellant herein) running the alleged vehicle or he witnessed the accident of victim by alleged vehicle. As per PW-10, accused (appellant herein) was apprehended by the public persons but he does not know the colour of jeep. The entire evidence of PW-10 is hearsay which cannot be the basis of conviction and hence the judgment is liable to be set-aside. There is no evidence on record to prove the identity of the accused (appellant herein) nor there is any witness who could say that he had seen the accused driving the vehicle or hitting the injured. It is pertinent to mention that PW-2 had not identified Criminal Appeal No. 11/2014 Page 3 of 12 the accused (appellant herein).
Prosecution has failed to show that alleged vehicle had hit the injured and as per PW-3, there was no fresh damage to the vehicle. There is nothing on record to suggest any blood on the body of vehicle. If version of PW-4 is relied who deposed that blood was oozing from the head of the injured, then blood was supposed to be there on the body of vehicle or on the spot but no such evidence has come on record. Prosecution has failed to prove that accident had taken place at the alleged time because all the PWs have mentioned different timing. There is no co-relation between the time of arrest of accused and alleged accident in order to show that the accident was done by the caused by the accused. Injured was already lying on the spot and accused was wrongly apprehended in the absence of any public witness and police intentionally did not make any public witness as PW in the present case. The best evidence to prove the cause of death is the examination of Doctor who had prepared the post-mortem report but the said Doctor has not been examined. On the other hand, MLC was proved through formal witness PW-8 who was not aware about the condition of the patient. It is submitted that the cause of death was delay in treatment as the injured was lying on the road, but police had preferred to call the father of injured, PW-4 who had taken the injured to private hospital and then to GTB hospital where injured was declared dead on the next day. No proper investigation was conducted by the IO who was not examined. PW-7 was not completely examined and prosecution failed to prove the facts mentioned in the FIR, even there is no arrest memo of accused. There is no witness to show the involvement Criminal Appeal No. 11/2014 Page 4 of 12 of the accused or of vehicle in the said accident.
6. It has also been submitted by Ld. counsel for appellant that Ld. Trial Court failed to appreciate that prosecution has failed to prove that death of injured was caused due to rash and negligent driving of the vehicle by the accused (appellant herein). There are number of lacunae in the case of prosecution and benefit of doubt must have been given to the accused but on the other hand Ld. Trial Court wrongly came to the conclusion that identity of accused was not disputed. PW-2 cannot be relied as he had failed to identify the accused. Testimony of PW-7 also cannot be relied upon as his evidence was not completed. Ld. Trial Court is silent on the point of non- examination of doctor and wrongly relied upon PW-8. Ld. Trial Court has wrongly relied upon the PW-10 as an eye-witness who never gave any statement that accident occurred in his presence. Ld. Trial Court overlooked the written-arguments on behalf of the appellant/accused. Ld. Trial Court has wrongly taken the view that there is minor contradiction with regard to the exact time of the incident whereas there is every possibility that by taking benefit of time the real culprit has run away leaving behind the accused/appellant who has been wrongly implicated in the present false case. Ld. Trial Court has failed to give benefit of doubt to the accused (appellant herein) who is a young person and is the only bread earner of his family including two children and old aged parents and therefore, it is prayed that impugned judgment and order on sentence be set aside.
In support of his contentions, Ld. counsel for appellant has relied on the authorities reported as "State of Karnataka Vs. Criminal Appeal No. 11/2014 Page 5 of 12 Satish, 1999 (1) JCC (SC) 97", and "Dr. S.L. Goswami Vs. State of Madhya Pradesh, 1972 SCC (Crl.) 258".
7. Ld. Addl. Public Prosecutor for State submitted that there is no illegality in the order. The prosecution has proved its case beyond reasonable doubt as PW1, PW2 and PW10 have fully supported the prosecution version. The accused was caught on the spot, the offending vehicle was seized at the spot and custody of the accused as well as offending vehicle was handed over to the IO from the spot. Since it was an accident between the offending vehicle and deceased, a human being, there was no question of any damage or dent having being caused on the offending vehicle. There was no reason for police officials to falsely implicate the accused. The IO has merely failed to place on record the arrest memo but appellant is not entitled for any benefit on that account because the arrest of the accused is not in dispute and the accused was granted bail who also furnished the personal bond and surety bond. The owner of the vehicle PW1 has deposed that the accused was their driver in year 2000 and he was driving the offending vehicle on 23/12/2000. The accused has also made statement on 14/01/13 that he does not dispute the identity of vehicle No. HR-51-9451 during the trial in which he was an accused. Police witnesses also deposed that the accused was driving the offending vehicle at a fast speed and caused the accident. The witnesses were not given any suggestion in the cross-examination that the accused was not driving the offending vehicle; that he was not driving the offending vehicle at a high speed or that he did not cause the accident with the deceased. Ld. Addl. Public Prosecutor for State has submitted Criminal Appeal No. 11/2014 Page 6 of 12 that the prosecution has discharged its burden to prove the case of the prosecution but the appellant/convict has not led any evidence despite opportunity and has failed to disprove that he was not driving the offending vehicle on the alleged date, time and place at a high speed and caused the accident. The authority reported as State of Karnataka v Satish 1999 [1] JCC [SC] 97 is distinguishable on the facts of this case. There is no illegality in the impugned judgment and order on sentence and therefore the appeal is liable to be dismissed.
8. The arguments raised on behalf of the appellant that he has been falsely implicated in the present case or that original culprits ran away alongwith the vehicle is not tenable as no such suggestion was given to the witnesses in their cross- examination nor any evidence in support of such contention has been adduced by the appellant.
9. PW10 Ct. Vijay Singh is the complainant who has deposed that on 23/12/2000 he was posted at PS Vivek Vihar and was on patrolling duty alongwith Ct. Surender and at about 7:50 p.m, when they were going near barat ghar main Kasturba Nagar one Mahindra jeep bearing registration No. HR-51-9451 coming from Ambedkar Park side at a high speed struck against a pedestrian. Public persons apprehended the driver, who was correctly identified by the witnesses in the court. They also reached there. The injured was sent to hospital in a private vehicle alongwith his father. PCR was informed by the public. They remained at the spot where IO also came and the accused as well as the offending jeep was handed over to the IO. He proved the statement Ex. PW9/A. This witness further stated that he could identify the vehicle if shown to him Criminal Appeal No. 11/2014 Page 7 of 12 (however accused did not dispute the identity of the vehicle). No suggestion was given to this witness in the cross- examination that the appellant/convict was not driving the offending vehicle or that he was not driving the said vehicle at a high speed or that he did not cause the accident or that someone else caused the accident or that the appellant has been falsely implicated in the present case.
10. PW2 Ct. Surender has also deposed that he alongwith Ct. Vijay was on patrolling duty at Kasturba Nagar and at about 7:50 p.m, one jeep bearing registration No. HR-51-9451 came from beside the Ambedkar Park at a very high speed. There was rush on the road. The said vehicle hit the pedestrian. The injured was sent to the hospital with the help of public. This witness could not identify the accused. However, he deposed that the driver of the jeep was apprehended. The jeep was taken in possession. HC Dinesh Chand (sic HC Diwan Singh) came there to whom the accused and the jeep were handed over. In the cross-examination by Ld. Addl. Public Prosecutor, this witness has identified the accused in the court and stated that earlier he could not identify him due to lapse of time. In the cross-examination he affirmed the suggestion that the road was crowded one. He denied the suggestion that there were 3-4 speed breakers on the road. He affirmed the suggestion that accused was apprehended at the spot at the place of accident. The accused was alone in the jeep. No suggestion was given to this witness that some other vehicle had caused the accident or some other person was driving the offending vehicle. It was also not suggested that the accused was not driving the offending vehicle at a high speed.
Criminal Appeal No. 11/2014 Page 8 of 1211. PW1 Karan Pal is the registered owner of the vehicle who took the vehicle on superdari vide Ex. PW1/A. He stated that he knew the accused Mukh Lal who was not present in the court on the date when PW1 was examined. However, identity of the accused was not disputed by his counsel as accused was exempted from appearance subject to the condition that he will not dispute the identity. PW1 deposed that appellant Mukh Lal was their driver in the year 2000 and he was driving the vehicle on 23/12/2000. In the cross-examination, he stated that the appellant was apprehended as driver with the them one year prior to the date of accident. No suggestion was given to him in the cross-examination that the convict/appellant was not driving the offending vehicle on the alleged date, time and place. Therefore, the prosecution has been able to prove on record that the appellant/convict was driving the offending vehicle on the alleged date, time and place. The prosecution has fully discharged the burden of proof and the appellant/convict has not led any evidence in his defence contrary to the said facts. There is no major contradiction in the testimony of prosecution witnesses which goes to the root of the matter. When the jeep was itself seized at the spot and owner PW1 has stated that the appellant/convict was driving the offending vehicle on the alleged date, time and place and said vehicle was taken on superdari by PW1, the failure of the PW10 to state the colour of the vehicle is immaterial.
12. Since the accident was caused by the offending vehicle with the deceased who was a pedestrian, there was no question of any damage having being caused to the offending vehicle. The injured was actually shifted to GTB hospital by PW4, father of Criminal Appeal No. 11/2014 Page 9 of 12 the deceased with the endorsement of Doctor as alleged history of road accident on MLC No. C-5390 dated 23/12/2000 prepared at 8:30 p.m and during treatment the injured died whose postmortem was conducted vide report Ex. PW8/A which bears the endorsement of the Doctor that cause of death was shock due to ante-mortem injury produced by blunt force impact, then there was no requirement of IO to collect any evidence that after the accident blood should have been found on the body of the vehicle or on the road. Mentioning of different timing by the witnesses and non-joining of public witnesses in the investigation does not go to the root of the matter.
13. The IO has merely failed to place on record the arrest memo but appellant is not entitled for any benefit on that account because the arrest of the accused is not in dispute and the accused was granted bail who also furnished the personal bond and surety bond.
14. The arguments that cause of death was due to delay in treatment is not tenable because no evidence in this regard has been adduced by the convict/appellant. As per prosecution case the accident has occurred at 7:50 p.m on 23/12/2000 and PW4 father of injured got him admitted at GTB Hospital by 8:30 p.m on same day.
15. On behalf of the appellant it has also been submitted by Ld. Counsel that none of the prosecution witnesses has deposed that the appellant/convict was driving the offending vehicle in a rash and negligent manner and therefore relying on authority reported as State of Karnataka v Satish 1999 [1] JCC [SC] 97, it was submitted that the appellant is entitled for Criminal Appeal No. 11/2014 Page 10 of 12 acquittal.
Negligence connotes want of proper care and rashness, conveys the idea of recklessness or doing the act without due consideration. In Prafulla Kumar Raut v State of Orissa, it was held that the driver driving at high speed on the national highway in front of school killing a minor girl was held guilty of negligent driving. Negligence is breach of duty caused by omission to do something which a reasonable man ought to do by those consideration which ordinarily regulates the conduct of human affairs would do, or doing something which a prudent or reasonable man would not do. The essential components of negligence are :-
(a) a duty to take care,
(b) failure to attain that standard of case prescribed by law, thereby committing breach of such duty and
(c) damage caused with such breach and recognised by law, suffered by the complainant/injured. It was so held in authority reported as Jackob Mathew v State of Punjab 2005 (6) SCC 1 (Full Bench). In the present case, the accident has been caused in a city road located near Shakti Video Kasturba Nagar, Delhi, PS Vivek Vihar, Delhi. The site plan Ex. PW90/D shows that the offending vehicle has caused the accident on wrong/right side of the road whereas the appellant convict was supposed to drive the vehicle on the left side on the middle of the road. No suggestion was given to the PW10 or the IO that the site plan was not correctly prepared. PW10 has deposed that offending vehicle was at a high speed and struck against the pedestrian. PW2 has also deposed that there was rush on Criminal Appeal No. 11/2014 Page 11 of 12 the road and the offending vehicle was at a very fast speed. In the cross-examination, PW2 has also denied the suggestion that there were 3-4 speed breakers on the road. He also affirmed the suggestion that the road was crowded one. No suggestion was given to the witnesses PW1, PW2 and PW10 that the appellant/convict was not driving the vehicle at a fast speed. Since the road was crowded and the offending vehicle was driven at a fast speed which caused accident striking the injured/deceased on the road, the appellant/convict was not only rash as well as negligent. With due respect to the authority relied by Ld. Defence Counsel, the same is not applicable on the facts of this case because in that case there was evidence to show that immediately before the truck turned turtle, there was a big jerk. In view of the foregoing reasons, I do not find any illegality in the impugned judgment and order on sentence.
Appeal is therefore, dismissed. The appellant has to suffer the punishment as awarded by Ld. Trial Court. He is already in jail. Copy of 'Judgment in Appeal' be given free of cost to the appellant. A copy of judgment be also sent to Ld. Trial Court for information. Trial Court Record be sent back. Appeal file be consigned to record room.
Announced in the open court (T.S. KASHYAP)
today on 21st April, 2014 ASJ-01/ Special Judge (NDPS)
Shahdara District, Delhi
Criminal Appeal No. 11/2014 Page 12 of 12