Delhi District Court
State vs Mahesh on 16 April, 2018
State v. Mahesh
IN THE COURT OF SH. VAIBHAV MEHTA,
METROPOLITAN MAGISTRATE (SOUTH) 05,
SAKET COURTS, NEW DELHI
State versus Mahesh
FIR No. 551/07
PS Mehrauli
U/s 279/304A IPC
JUDGMENT
1 Serial No. of the case : 2032754/2016 2 Date of commission : 24.07.2007 3 Date of institution of the case : 23.01.2008 4 Name of complainant : Sh. Jitender 5 Name of accused : Mahesh S/o Sh. Ram Niwas, R/o. Saroop Sarai, Karnikot, Dist. Alwar, Rajasthan. 6 Offence complained of : U/s 279/304A IPC 7 Plea of accused : Pleaded not guilty 8 Arguments heard on : 28.03.2018 9 Final order : Convicted 10 Date of judgment : 16.04.2018 BRIEF FACTS AND REASONS FOR DECISION
1. The brief facts of the case of prosecution are that on 24.07.2007 at about 07.30 pm, near Mallu Farm Opposite Ansal Vilaha, Satwadi, ND, accused was found driving a truck bearing No. HR 47A 8610 in rash and negligent manner and hit against FIR No. 551/07, PS: Mehrauli State v. Mahesh motorcycle no. DL 3SA 3477 make of Bajaj Pulsar and caused death of motorcyclist Raj Kumar. Accordingly, the FIR u/s 279/304A PC was registered.
NOTICE
2. Prima facie case of commission of offences under Section 279/304A IPC was made out against accused. Notice u/s 279/304A IPC was framed upon the accused on 22.08.2009. He pleaded not guilty and claimed trial.
ADMISSION U/S 294 Cr.PC
3. During the course of evidence, statement of accused was recorded under section 294 Cr.P.C wherein he did not dispute the identity of certain documents and admitted the same in terms of section 294 Cr.P.C. Accused had admitted the following document:
(i) Fir No. 551/07 as Ex. A1.
(ii) DD Nos. 24A and 27A both dated 24.07.2007 as Ex. A2 and Ex. A3.
(iii) PM report of Raj Kumar dated 25.07.2007 as Ex. A4.
(iv) Death report of Raj Kumar dated 24.07.2007 as Ex. A5.
(v) Mechanical Inspection Report of vehicle no. HR 47A 8610 dated 25.07.2007 as Ex. A6.
FIR No. 551/07, PS: Mehrauli State v. Mahesh
(vi) Mechanical Inspection Report of vehicle No. DL 3SA 3477 dated 25.07.2007 as Ex. A7.
EVIDENCE LED BY THE PROSECUTION
4. The prosecution has examined five witnesses.
PROSECUTION WITNESS
PW1 Ct. Shiv Kumar Assisted the IO.
PW2 Jitender Tanwar Complainant
PW3 Ct. Sanjeev Kumar Assisted the IO.
PW4 SI Adesh Prakash IO of present case
PW5 ASI Mahender 2nd IO of present case
Bhardwaj
5. Prosecution has relied upon the following documents: Exhibits Contents Exhibited by PW2/A, PW2/B, Complaint, site plan, seizure memos of Jitender Tanwar PW2/C, PW2/D, both vehicles, arrest memo, PW2/E, PW2/F, identification memo, photographs of P1 and P2 offending truck PW4/A, PW4/B, Seizure memo of documents of SI Adesh PW4/C and offending vehicle, seizure memo of DL, Prakash PW4/D identification memo of dead body PW5/A Rukka ASI Mahender Bhardwaj Ex. S Superdarinama Admitted by accused u/s 294 Cr.PC FIR No. 551/07, PS: Mehrauli State v. Mahesh
6. PW1 Ct. Shiv Kumar deposed that on 24.07.2007, he joined investigation with HC Mahender Bhardwaj and on receiving DD No. 24A, they reached infront of Ansal Villa, Near Mallu Farm and found one motorcycle pulser DL 3SA 3477 and a truck no. HR 47A 8610 in an accidental condition. Thereafter they came to know that injured had been shifted to hospital and on receiving DD No. 27A, they went to Modi Hospital where the MLC of the deceased was collected.
7. PW2 Sh. Jitender Tanwar deposed that on 24.07.2007, he alongwith his cousin Raj Kumar were going to Chattarpur on their vehicles and he was driving in Honda City and his cousin (deceased Raj Kumar) was on bike bearing no, DL 3SA 3477 and was driving the vehicle in front of his vehicle. PW2 stated that at about 07.30 pm, as they reached at Ansal Village Gate, Satabadi, one truck bearing no. HR 47A 8610 came at a very high speed from wrong side and accused struck his cousin's motorcycle from the front side as a result of which the motorcycle and his cousin Raj Kumar came under the offending vehicle and later on due to injuries on his neck and body. PW2 further stated that the accident was caused due to rash and negligent driving of accused. He identified the photographs of offending vehicle i.e. truck as Ex. P1 and P2 and the accused was correctly identified by the witness.
FIR No. 551/07, PS: Mehrauli State v. Mahesh
8. PW3 Ct. Sanjeev Kumar deposed that on 24.07.2007 the Duty Officer of PS Mehrauli handed over to him a DD NO. 24A dated 24.07.2007 regarding accident at Ansal Villa Near Mallu Farm House and when he reached there and he found that HC Mahender and Ct. Shiv Kumar were already there after which he handed over the report of DD No. 24A to HC Mahender returned to PS. PW3 further stated that he reached the PS, DO handed over him another DD entry No. 47A dated 24.07.2007 and asked him to give it to HC Mehender which he did after which HC Mehender left him on the spot and went to hospital alongwith Ct. Shiv Kumar and later recorded the statement of the injured at the spot and at about 11.00 pm, HC Mahender sent him for registration of FIR. He went to PS and handed over the rukka to DO.
9. PW4 SI Adesh Prakash deposed that on 24.07.2007, he received the case file after which he alongwith Ct. Sanjeev Kumar went to the spot and met complainant and HC Mahender Bhardwaj. PW4 stated that he prepared the site plan Ex. PW2/B at the instance of complainant and seized both vehicles vide seizure memo Ex. PW2/C and PW2/D. He also seized the photocopy of documents of offending vehicle vide memo Ex. PW4/A. PW4 further stated that he arrested the accused vide arrest memo Ex. PW2/E at the instance FIR No. 551/07, PS: Mehrauli State v. Mahesh of complainant and also got conducted mechanical inspection of both the vehicles and further seized DL of accused vide seizure memo on PW4/B. PW4 also got conducted the postmortem of deceased and recorded the identification statement for dead body of the deceased vide memos Ex. PW4/C and PW4/D.
10. PW5 ASI Mahender Bhardwaj deposed that on 24.07.2007, he was on emergency duty with Ct. Shiv Kumar and their duty hours were from 08.00 am to 08.00 pm and at about 08.00 pm, vide DD No. 24A, he received a PCR call regarding accident in front of Ansal Villa, Satbari through Ct. Sanjeev after which he alongwith Ct. Shiv Kumar and Ct. Sanjeev reached at the spot and found that one motorcycle and truck were lying in accidental condition. PW5 stated that he received a call from Modi Hospital, Saket after which he left Ct. Sanjeev on the spot and left the spot alongwith Ct. Shiv Kumar for the hospital and collected the MLC as Ex. A5 of injured and doctor informed him that the patient/ injured Raj Kumar was declared dead. PW5 stated that he met the cousin brother of deceased namely Jitender in the hospital and he alongwith complainant came back to the spot and recorded his statement Ex. PW2/A after which he prepared the rukka Ex. PW5/A and same was handed over to Ct. Sanjeev for registration of FIR.
FIR No. 551/07, PS: Mehrauli State v. Mahesh
11. Thereafter, PE was closed on 08.12.2017.
EXAMINATION OF ACCUSED U/S 313 Cr.P.C.
12. Statement of accused u/s 313 Cr.PC was recorded on 03.01.2018. He opted to lead evidence in his defence.
DEFENCE EVIDENCE
13. Defence examined two witnesses.
DW1 Rameshwar Dayal Relative of accused DW2 Vir Singh Known of the accused
14. Documents relied on by defence.
No documents relied upon LEGAL PROVISIONS
15. Section 279 IPC states as under:
Rash driving or riding on a public way Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
FIR No. 551/07, PS: Mehrauli State v. Mahesh Section 304A IPC states as under: Causing death by negligence 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 with both"
In order to convict the accused u/s 304A IPC, the prosecution must be able to establish:
a) There must be death of the person in question.
b) The accused must have caused such death.
c) That such act of the accused was rash and negligent and that it did not amount to culpable homicide.
ARGUMENTS
16. The Ld. APP for the State argued that the testimony of PW2 Sh. Jitender Tanwar sealed the case of the prosecution as he was the main eye witness and his testimony is supported by the deposition of the other prosecution witnesses. The Ld. APP for the State further argued that the MLC and the mechanical inspection report of both the vehicles further support their case and prove the case of the accused beyond doubt.
The counsel for the accused argued that the testimony of the main prosecution witness is doubtful and lacking in integrity and FIR No. 551/07, PS: Mehrauli State v. Mahesh therefore, the accused should be given the benefit of doubt as the prosecution has failed to discharge the burden of proof that lay on them.
COURT OBSERVATIONS
17. I have considered the submissions of Ld. APP for the State and of ld. Defence counsel. I have also gone through the evidence on record very carefully and after assessing it the court makes the following observations:
(a) PW2 Jitender Tanwar is the main witness of the prosecution who stated in his deposition that on 24.07.2007, he was driving his vehicle Honda City and was following his cusion who was on his bike no. DL 3SA 3477 and when they both reached at Ansal Village, PW2 saw a truck bearing no. HR 47A 8610 came at high speed from wrong side and said truck was being driven by accused Mahesh who was identified in the court by PW2 Sh. Jitender Tanwar. PW2 further deposed that he made the accused Mahesh get down from the offending vehicle and took his injured cousin to the hospital.
(b) The examination in chief of Sh. Jitender Tanwar was carried out on 19.01.2012 and on 20.09.2013, during further examination in chief PW2 Jitender Tanwar reiterated his version that the accident took place due to rash and negligent driving of FIR No. 551/07, PS: Mehrauli State v. Mahesh the accused Mahesh Chand.
The said witness was cross examined on 08.08.2017 wherein he turned hostile and stated that he had not seen the accident and deposed in contradiction to his earlier testimony.
(c) The law as regards the testimony of a witness who turns hostile is stated as under: The Hon'ble Supreme Court in Anil Rai v. State of Bihar (AIR 2001 SC 3173) observed that, "The mere fact that the court gave the permission to the public prosecutor to cross examine his own witness by declaring him hostile does not completely effaces the evidence of such witness. The evidence remain admissible in the trial and therein no legal bar to base conviction upon his testimony if corroborated by other reliable evidence."
In Kaptan Singh v. State (2001 ALL LJ 2841) it was observed that, "Testimony of witness who has been declared hostile and is cross examined is admissible. Merely describing a person as hostile witness does not completely efface his evidence. If such evidence is corroborated by other evidence, there is no legal bar to convict the accused."
In Alok Dev Rai v. State of Assam, (2004 CrLJ 3048 GAU), it was observed that, "Probative value of hostile witness depends in its quality and confidence it generates in the mind of FIR No. 551/07, PS: Mehrauli State v. Mahesh court after being subject to a close scrutiny. The mere fact that a particular witness has not chosen to support the party who brings him forward by itself is not a reason to discard the testimony of such a witness in toto."
In Baby Mathew v. State (2004 (5) Kar LJ 415), it was observed that, "Evidence of even hostile witness so far as his evidence support the prosecution version can be relied upon by the courts. Simply because a witness has been declared hostile that does not mean that his whole evidence most be rejected; such of the portions of the evidence of the said witness which inspires confidence to be acted upon can be relied on." In Radha Mohan Singh v. State (2005 Cr. LJ 167 (All)), it was observed, "The evidence of witness cannot be discarded in toto simply because he was declared hostile. A perusal of entire evidence of the witness shows that on the nex day he was made to say something in favour of appellants, as he appears to have been was over. The subsequent evidence of the witness have been won over. The subsequent evidence of the witness that there was complete darkness on the spot is totally belied by the fact that the night of occurrences was non let night and the occurrence had taken place in open place. The assailants were also known persons to the witness. He has also sustained injuries and presence of the witness on the spot cannot be FIR No. 551/07, PS: Mehrauli State v. Mahesh doubled and his subsequent statement was due to influence of appellants, and therefore, entire testimony of the witness cannot be discarded on this ground "
The testimony of a hostile witness is unsable to the extent to which it supports the prosecution case. [Koli Lakhmanbhai Chanabhari v. State of Gujarat, AIR 200 SC 210 : ) 1999) 8 SCC 624].
Therefore, the testimony of a hostile witness can be relied upon by the court if the same finds corroboration from other material on record.
(d) In the present case the deposition of PW2 Jitender Tanwar made in his examination in chief finds corroboration from the MLC no. 2697 which corroborate factum of injury sustained by the victim Raj Kumar. Furthermore, the deposition of PW Jitender Tanwa also stands corroborated from mechanical inspection reports, the photographs placed on record Ex. P1 and DD No. 27A admitted by the accused u/s 294 Cr.PC.
(e) The accused has in his defence brought two witnesses DW1 Sh. Rameshwar Dayal and DW2 Sh. Bir Singh. Both the witnesses have stated that the accused Mahesh was attending the marriage function at Padmad Kalan District Alwar, Rajasthan from 23.07.2007 to 25.07.2007.However, no photographs showing the presence of accused at marrige FIR No. 551/07, PS: Mehrauli State v. Mahesh function have been furnished nor any concrete evidence to prove the presence of the accused at the marriage function from 23.07.2007 to 25.07.2007 have been produced by the accused. Therefore, the accused has raised a very weak defence of plea of alibi.
(f) The accused has admitted DD No 27A dated 24.07.2007 which supports the version of PW2 given in his examination in chief that he took the victim Raj Kumar to the hospital.
(g) MLC No. 2697 of victim Ram Kumar (now deceased) also shows that it was PW2 Jitender Tanwar who brought the victim to the hospital.
(h) In the complaint Ex. PW2/A, the complainant has stated the same fact given in his examination in chief and Ex.PW2/C the seizure memo of truck no. HR 47A 8610 dated 24.07.2007 further supports the case of the prosecution that the alleged truck was seized on the day of the incident that is 24.07.2007 and bears the signature of complainant.
(i) The mechanical inspection report of both the vehicles i.e. offending truck bearing no. HR 47A 8610 dated 25.07.2007 and of the motorcycle driven by the victim no. DL 3SA 3477 dated 25.07.2007 were admitted by the accused in the statement u/s 294 Cr.PC.
FIR No. 551/07, PS: Mehrauli State v. Mahesh The mechanical inspection report of the abovesaid offending truck shows:
(I) Front left side bumper damage;
(II) Left side head light damage;
(III) Left side indicator glass broken:
(IV) Drive VMD glass of both sides broken.
The mechanical inspection report of the abovesaid offending truck shows:
(I) Front shocker damage;
(II) Front head light damage;
(III) Head light buzzer damage;
(IV) Steering aram tee broken:
(V) Front indicator light of both sides damage; (VI) Speedometer damage;
(VII) Electric wiring damage; (VIII) Horn damage.
The extent of the damage on both the vehicles show that there was head on collision between the truck and motorcycle which further supports the version of the complainant in the examination in chief that the truck came from the wrong side at a high speed which led to the accident and bike and his cousin came under the truck.
FIR No. 551/07, PS: Mehrauli State v. Mahesh
(j) The injuries sustained by the deceased Raj Kumar does give a glimpse of the force of the impact of the truck with a motorcycle driven by the accused.
(k) The photographs Ex. P1 further show the scale and magnitude of the accident and resulting impact on the motorcycle. The photographs clearly show that the motorcycle under the truck and the extent of the damage on the front of the truck is also clearly visible which further supports the version of the complainant PW2 given in his examination in chief.
(l) In view of the testimony of the complainant/ PW2 Jitender Tanwar and fact that his examination in chief has been corroborated at length by the other evidence produced by the prosecution, this court is of the view that the prosecution has been able to prove the guilt of the accused beyond doubt.
18. For the reasons mentioned above, this court convicts the accused Mahesh for offence u/s 279/304A IPC. Let the accused be heard on quantum of sentence.
Announced in the open (VAIBHAV MEHTA)
court on 16.04.2018 MM5 (South), Saket Courts
New Delhi
FIR No. 551/07, PS: Mehrauli