Delhi District Court
Santosh Kumar vs The State on 6 October, 2021
IN THE COURT OF SURESH KUMAR GUPTA,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
CNR NO. DLNW010027812021
Criminal Appeal No. 37 of 2021
Santosh Kumar
S/o Sh. Lataori Singh
R/o D20, Rajiv Nagar Extension,
Begumpur, Delhi ...........Appellant
Versus
The State
Govt. of NCT of Delhi ..........Respondent
Instituted on : 27.03.2021
Argued on : 17.09.2021
Decided on : 06.10.2021
JUDGMENT
1. The appellant has impugned the judgment dated 25.10.2019 vide which he is convicted u/s 279/304A IPC and order on sentence dated 24.02.2021 vide which he is sentenced to undergo SI for three months for the offence u/s 279 IPC and SI for one year for the offence u/s 304A IPC. Santosh Kumar v. State - CA No. 37 of 2021 1 of 23 The appellant is also directed to pay compensation of Rs. 5000/ to the complainant u/s 357 CrPC as he has received compensation of Rs. 2 lacs from MACT.
2. The appeal is filed on the grounds that date of incident, identity of the appellant and offending vehicle have not been proved by the prosecution. The prosecution has not even proved the colour of the offending vehicle. The prosecution has failed to show how the offending vehicle was seized. The appellant and offending vehicle were not put to TIP. The prosecution has failed to prove the presence of IO on the spot. The blood on the tyre was not got matched from the blood sample of deceased. The appellant was not arrested from the spot. The notice u/s 133 M.V. Act is not sent by the IO as a result it was not exhibited by the prosecution. The prosecution has failed to prove the site plan. There is no evidence as to the time of accident. No public person is associated by the police. PW1 is a planted witness as he has Santosh Kumar v. State - CA No. 37 of 2021 2 of 23 failed to depose about the date, time, identity of the driver, identity of the vehicle, site plan, direction from which offending vehicle came and hit the deceased and which tyre hit the deceased. The testimony of PW1 is not reliable. The entire evidence on the file does not show that appellant was driving the offending vehicle and caused the accident. Hence, this appeal.
3. The notice of the appeal is issued to the prosecution.
4. The facts of the case are like this. Complainant Arjun gave his statement to the police with the allegations that he is doing labour work. His grand son Mohit (son of his daughter) resides with him. On 20.02.2007 at 7.45 pm, he alongwith Mohit was coming back to his house after purchasing goods. They reached near the plot of Kuldeep Baniya on Begumpur Karala Road. A tempo bearing no. HR562200 came from behind in a high speed and in rash and negligent manner and Santosh Kumar v. State - CA No. 37 of 2021 3 of 23 hit against Mohit. Mohit came under the front wheel of the Tempo and died on the spot. The tempo driver stopped the vehicle and fled from the spot on seeing that Mohit has died. He has clearly seen the tempo driver. He can identify him in case he is produced before him. His statement was recorded which led to registration of FIR. Usual investigation was carried out. Charge sheet u/s 279 and 304A IPC is filed against the appellant.
5. Notice of accusation was framed for offence u/s 279/304A IPC against the appellant wherein he took the plea that he was driving the vehicle but he was not negligent. He pleaded not guilty and claimed trial. The prosecution has examined 8 witnesses. The appellant has admitted the factum of registration of FIR as evident from his statement recorded on 01.03.2018. SI Balwan/IO has expired which is also clear from the order sheet dated 01.03.2018. The prosecution evidence was closed. The appellant was examined u/s 313 Santosh Kumar v. State - CA No. 37 of 2021 4 of 23 Cr.PC wherein he has taken the plea that he used to park the vehicle at Jain Nagar. He went to take the vehicle on the next day of the incident. The vehicle was not found at Jain Nagar where he used to park. He came to know from local persons that police have taken the vehicle on the previous day. The appellant has not led defence evidence.
6. Ld. Trial court after hearing the Ld. APP, Ld. Defence Counsel and perusing the record has convicted and sentenced the appellant.
7. PW1 Arjun Prasad @ Arjun Rauk is the complainant and maternal grand father of deceased. He stated that incident has taken place around 6 years ago on Tuesday. He does not remember the exact date, month and year of incident. His nati Mohit, aged 8 years used to study in Nursery at DRM Public School. On the day of incident at about 7.45 pm he alongwith Mohit was going to the market to purchase the vegetables. Santosh Kumar v. State - CA No. 37 of 2021 5 of 23 They reached from Begumpur road - Karala road near a plot at Rajiv Nagar Extension, Delhi. One tempo bearing no. HR56 2200 came in a high speed and in a rash and negligent manner and hit against Mohit. The right front wheel crushed Mohit who died on the spot. He has seen the driver i.e. appellant at the time of accident. The appellant was driving the tempo at the time of accident. Some one informed the police. The police reached on the spot. His statement Ex.PW1/A was recorded. The deceased was taken to hospital. He went to police station after 23 days where appellant was identified by him. The appellant was arrested whose personal search and arrest memo Ex.PW1/B and C were prepared. He has identified the dead body of deceased at SGM Hospital, Mangol Puri and memo Ex.PW1/D was prepared. The dead body after postmortem was handed over to him vide memo Ex.PW1/E. Ld. APP for the State has taken permission to ask leading question from him and permission was granted. He admitted that on 22.02.2007 at 7.45 pm the accident has Santosh Kumar v. State - CA No. 37 of 2021 6 of 23 taken place. During crossexamination, he admitted that on the day of incident, he alongwith Mohit at around 66.30 pm went to market to purchase the vegetable. The offending vehicle has come from the Karala side and was going towards Begumpur. The suggestion is denied that accident took place in front of the house of Kuldeep Baniya. He admitted that there was no street light on the road and he did not call the police. He admitted that public persons gathered on the spot after the accident but their statements were not recorded by the police. His statement was recorded in the police station. The deceased was on his right side. The offending vehicle did not stop and fled from the spot. He had seen the registration number of the vehicle but did not note it down. He does not remember the exact time when the police official reached on the spot but voluntarily stated that they reached at around 6.45 pm. The colour of the vehicle was light brown. He admitted that he has not seen the driver of the offending vehicle.
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8. PW2 Dr. V.K. Jha has conducted the autopsy on the body of Mohit and issued postmortem report Ex.PW2/A. The cause of death was cranio cerebral damage due to road side accident. No crossexamination was done though opportunity was given.
9. PW3 Sh. J.S. Pawar, Automobile Engineer has carried out the mechanical inspection of offending vehicle bearing no. HR56 2200 and issued the report Ex.PW3/A. The vehicle was fit for road test. There was no fresh damage but blood stains were found on the left front tyre of the tempo. No cross examination was done though opportunity was given.
10. PW4 Vinod Mandal had identified the dead body of the deceased vide memo Ex.PW4/A. No crossexamination was done though opportunity was given.
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11. PW6 ASI Mohan Singh has proved FIR Ex.PW6/A and endorsement Ex.PW6/B on the rukka.
12. PW7 HC Ramesh Kumar stated that on 20.02.2007 the offending vehicle was deposited in the malkhana qua which entry was made in the register no. 19, copy of which is Ex.PW7/A. On 05.03.2007 the vehicle was released on superdari, copy of the same is Ex.PW7/B. No cross examination was done though opportunity was given.
13. PW5 ASI Kirpal stated that on 20.02.2007 he was constable at PS, Sultanpuri. He was on emergency duty from 8 am to 8 pm. DD No. 73B was received by SI Bhagwan at around 7.45 pm upon which he alongwith IO reached on the spot where one dead body was lying on the road. The photographer was called who took the photographs. The statement of eye witness was recorded. IO prepared the rukka and sent to PS through him for registration of FIR upon which Santosh Kumar v. State - CA No. 37 of 2021 9 of 23 he went to PS and got the FIR registered. He came back to the spot and handed over the copy of the FIR and original rukka to the IO. The offending vehicle was standing in the gali near the spot which was taken into possession vide memo Ex.PW5/A. The case property was deposited in the malkhana. Ex.P1 to Ex.P4 are the photographs of the dead body of the deceased. During crossexamination, he stated that they reached on the spot within 1012 minutes. The offending vehicle was found at a distance of half kilometer from the spot. He does not remember whether any public person was asked to join the investigation at the time of seizing the vehicle. The suggestion is denied that case property is planted on the appellant.
14. PW8 ACP (Retired) Mahender Singh stated that on 10.05.2018 he was SHO, PS, Sultanpuri and forwarded the charge sheet in the court for trial. SI Balwan was IO of this case who has expired. IO has worked under his supervision Santosh Kumar v. State - CA No. 37 of 2021 10 of 23 so he has seen him while writing and signing. He can identify his handwriting and signature. The signature of IO is at point B on statement Ex.PW1/A. The rukka, site plan, seizure memo of DL, RC, Insurance Ex.PW8/A to D, seizure memo of offending vehicle Ex.PW5/A, personal search and arrest memo Ex.PW1/B and C bear the signatures of IO at point B. No crossexamination was done though opportunity was given.
15. Ld. Counsel for the appellant submitted that accident has not taken place with the tempo/vehicle being driven by the appellant. He further submitted that PW1 is not an eye witness as he is planted lateron being the close relative of deceased. He further submitted that the testimony of PW1 is not reliable as he has failed to depose about the exact date and time of accident as well as he did not see the appellant while driving the vehicle at the time of accident. He further submitted that PW1 has failed to depose about the speed, Santosh Kumar v. State - CA No. 37 of 2021 11 of 23 colour and direction from which vehicle was coming. He further submitted that testimony of PW1 is not consonance with the statement given to the police as such his testimony does not inspire confidence. He further submitted that prosecution has failed to prove how the appellant was apprehended. He further submitted that there is no evidence on record that accident has taken place due to the rash and negligent driving of the appellant.
16. Ld. Chief PP for the State submitted that appellant was driving the offending vehicle. He further submitted that appellant has hit the offending vehicle from behind against the deceased on a straight road which itself is a factum of negligent driving even if, the evidence of high speed has not come on record. He further submitted that PW1 was with the deceased at the time of accident. He further submitted that PW1 was examined after a considerable time from the date of accident so minor contradictions in his testimony are bound Santosh Kumar v. State - CA No. 37 of 2021 12 of 23 to come which in no way affect the case of prosecution. He further submitted that PW1 has corroborated the case of prosecution on the material aspects and Ld. Trial Court has rightly appreciated the evidence and convicted the appellant.
17. Heard and perused the record.
18. PW1 is an eye witness. There is no other eye witness to the occurrence. His testimony clearly shows that he does not remember the exact date, month and year of the incident. On the day of incident, he alongwith deceased went to market to purchase the vegetables and reached near a plot, Rajiv Nagar Extension from Begumpur Road - Karala Road. No question or suggestion is put to him that he alongwith deceased did not go to the market. No question or suggestion is put to him that he was at home at the time of accident or present at some other place. He was not crossexamined to this effect. His testimony to this effect has gone unrebutted. It means Santosh Kumar v. State - CA No. 37 of 2021 13 of 23 that his presence alongwith deceased at the time of accident stands admitted.
19. His testimony further shows that one vehicle bearing no. HR56 2200 came in a high speed and in a rash and negligent manner and hit against the deceased. The right front wheel crushed the deceased who died on the spot.
20. The notice of accusation for the offence u/s 279/304A IPC was framed against the appellant. He has taken a plea at that time that he was driving the vehicle but he was not negligent. No question or suggestion is put to PW1 that he was not driving the offending vehicle at the time of accident. No question or suggestion is put to PW5 that appellant was not driving the vehicle in question. The appellant can not take a U turn by taking a defence in statement u/s 313 CrPC that he was not driving the vehicle. The appellant could have examined any witness including owner of vehicle to show that Santosh Kumar v. State - CA No. 37 of 2021 14 of 23 someone else was driving the vehicle at the time of accident. All these facts show that appellant was driving the vehicle at the time of the accident.
21. The factum of negligent driving can be drawn from the entire evidence on the record. A person who drives a vehicle on the road is liable to be held responsible for his act and its result. The negligence means omission to do something which a reasonable and prudent person would do. The driver has to take reasonable care and precaution while driving the vehicle. The person behind the wheels is under an obligation to take care of the persons using the road. He is under an implicit duty that his driving does not endanger the life of any person. He should have driven the vehicle in such a fashion that his vehicle should not hit the other vehicle or person on the road.
22. PW1 alongwith deceased was going on the road. The crossexamination of PW1 shows that the vehicle came from Santosh Kumar v. State - CA No. 37 of 2021 15 of 23 Karala side which was going towards Begumpur side. SI Balwan was IO of the case who has expired before his examination in the court. The site plan Ex. PW8/B stands proved by PW8. The site plan shows that road is wide enough which is straight. There are head lights on the vehicles. The deceased was visible to the appellant as the road is straight and accident has taken place in the evening. It is not the case of the appellant that deceased has suddenly come in front of his vehicle. The appellant failed to stop the offending vehicle in time which corroborates the fact that he was driving the vehicle in a negligent manner. It shows that appellant has not taken reasonable care and precaution while driving the vehicle on a public carriage way. The manner of the accident itself show that appellant was driving the vehicle in a negligent manner.
23. PW3 has carried out the mechanical inspection of the vehicle and issued the report Ex.PW3/A. The mechanical Santosh Kumar v. State - CA No. 37 of 2021 16 of 23 inspection report shows that blood stains were found on the left front tyre. The deceased has come under the front wheels of the vehicle so possibility of blood stains on the either side of the tyres cannot be ruled out which further corroborates the fact that deceased has died due to road traffic accident.
24. The postmortem report Ex.PW2/A of the deceased shows that deceased has sustained injuries on his body. The deceased has sustained injuries on right side temporal parietal region and brain matter came out of cranial cavity. The injuries are possible by road side accident. He has sustained injuries and succumbed to the injuries on the spot. Postmortem report corroborates the fact that injuries on the body of deceased were the result of road accident.
25. There are contradictions in the testimony of PW1. He has admitted that accident has taken place on 22.02.2007. His examination was recorded on 02.12.2013. The incident Santosh Kumar v. State - CA No. 37 of 2021 17 of 23 has taken place on 20.02.2007. To my mind, such kind of contradiction is possible if the testimony is recorded after the lapse of more than 6½ years. This contradiction alone is not sufficient to view the testimony with aid of spectacles.
26. The crossexamination of PW1 shows that the vehicle was of light brown colour. The police reached on the spot at 6.45 pm. Ld. Counsel for the appellant submitted that vehicle was of sky blue colour and accident has taken place at 7.45 pm. He further submitted that witness has not correctly deposed about these facts so his testimony does not inspire confidence. To my mind, these contradictions are in no way affect the case of prosecution. His crossexamination was recorded on 15.12.2017 i.e. after a lapse of more than 10½ years and such minor contradictions like this are bound to occur even in the testimony of most honest witnesses. The appellant cannot draw any mileage out of these minor contradictions especially when he has corroborated the case Santosh Kumar v. State - CA No. 37 of 2021 18 of 23 of prosecution on material aspects.
27. The investigating officer has expired so the documents prepared by him are proved by PW8 i.e. ACP (Retired) Mahender Singh who was SHO, PS, Sultanpuri and forwarded the charge sheet. The witness, who has prepared the site plan and other documents during the course of investigation, is not available due to his death so appellant cannot draw any support out of the fact that the site plan and other documents were not duly proved by the prosecution.
28. No public person from the spot was associated as a witness. It is a matter common experience that on lookers treat such kind of matter as a dispute between the two parties and that is why they do not come forward to join as a witness. The road accidents are on the increase and this fact is accepted by the public and this may also be one of the reasons that they refrain themselves from assisting the police. Santosh Kumar v. State - CA No. 37 of 2021 19 of 23 In these facts, the nonassociation of public persons does not affect the case of prosecution.
29. PW1 has no motive to depose against the appellant. He will not falsely implicate the appellant. PW1 will not allow the real culprit to go scot free as his nati has expired. There is no evidence of enmity on record. No major contradiction is brought on record by the appellant to bring his testimony into zone of doubt. To my mind, there is nothing on the record to cast aspersion on his testimony. He has given major details of the accident which show that accident has taken place with the vehicle being driven by the appellant in a rash and negligent manner. Support is drawn from Paras Nath v. State of Delhi 107 (2003) DLT 169 and Jeet Lal v. State ILR (2010) Supp. 4 Delhi 558.
30. The entire evidence on the file shows that appellant was driving the vehicle in rash and negligent manner and hit Santosh Kumar v. State - CA No. 37 of 2021 20 of 23 against the deceased who sustained injuries and succumbed to the injuries on the spot.
31. Ld. Trial Court has properly appreciated the facts and the evidence on record. I do not find any infirmity in the judgment dated 25.10.2019 passed by the Ld. Trial Court.
32. Ld. Counsel for the appellant submitted that appellant is 56 years old who has a large family to support. He further submitted that appellant is the sole bread earner of the family and any substantive sentence will affect his family. He further submitted that appellant be released on the probation of good conduct and even the Court can enhance compensation to the family members of the deceased.
33. Ld. Chief PP for the State has urged to the contrary.
34. One child has lost his life. The appellant was driving Santosh Kumar v. State - CA No. 37 of 2021 21 of 23 commercial vehicle. The deterrent punishment is more important in road accident cases so that persons who ply the vehicles on the road must bear in mind that they will have to face serious consequences including conviction and imprisonment in case of fatal accident. The appellant cannot claim sympathy because a person who plays with fire cannot complain of burnt fingers. The appellant has fled from the spot. The leniency is in such like cases will do injustice to the family members of the deceased. A stern message has to be given to the society. To my mind, there is no ground to take a lenient view as Ld. Trial Court has already passed the sentence u/s 279/304A IPC which is on the lower side.
35. I do not find any infirmity or perversity with respect to the conviction recorded u/s 279/304A IPC and sentence imposed u/s 279/304A IPC. The conviction and sentence u/s 279/304A IPC are upheld. Both the sentences shall run concurrently.
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36. The appeal is dismissed. The appellant is taken into custody in order to serve the sentence imposed by Ld. Trial Court. His warrant of commitment be prepared and sent to Superintendent Jail, Tihar, New Delhi.
37. Attested copy of the judgment be supplied to the appellant free of cost.
38. TCR record alongwith copy of the judgment be sent to the Ld. Trial Court.
39. Appeal file be consigned to record room. ANNOUNCED IN THE OPEN COURT IN PHYSICAL HEARING SURESH Digitally by SURESH signed ON 6th OCTOBER, 2021 KUMAR KUMAR GUPTA Date: 2021.10.07 GUPTA 15:58:06 +0530 (SURESH KUMAR GUPTA) PRINCIPAL DISTRICT & SESSIONS JUDGE NORTH WEST DISTRICT ROHINI COURTS, DELHI Santosh Kumar v. State - CA No. 37 of 2021 23 of 23