Delhi District Court
State vs . Dharampal on 19 January, 2007
IN THE COURT OF SH. SURINDER S. RATHI :
MM: ROHINI COURTS : DELHI
State vs. Dharampal
FIR No. : 549/92
PS : Sultan Puri
U/s 279/ 337/338 IPC
JUDGMENT
1. Sl. No. of the case : 252/2/1995
2. Name of complainant : State
3. Date of commission of offence : 27.11.1992
4. Name of accused, parentage and
address : Dharam Pal S/o Sher Singh
R/p Village Dhansa Delhi.
5. Offence complained of or proved : U/s 279/ 337/338 IPC
6. Plea of guilt : Pleaded not guilty
7. Final order : Convicted
8. Date of such order : 19.1.2007
BRIEF REASONS FOR THE DECISION OF THE CASE
1. On 27.11.1992 at about 7.45 AM near Sharma Property Dealer,
kanjhawla Road, Delhi within the jurisdiction of PS Sultan Puri accused Dharam Psal was found driving truck No. HYG - 2805 in a rash and negligent manner and while driving the said vehicle in such a manner he -:1:- struck against one school mini bus No. DL-1V-0274 and caused grievous injuries to Sardar Singh S/o Bhola and simple injuries on the person of Sneh Dabas, Baby Poonam, Manju Dabas, Promila, Anju, Master Tanu, Anil, Surjinder, Anish, Deepak Dabas, Master Sunil Kumar, Pankaj Daba, Sangeeta, Goldy and Rajesh Kumar . Accused was booked for commission of offence punishable u/s 279/337/338 IPC. After the registration of the FIR, investigation was carried on.
2. After conclusion of investigation chargesheet was filed against the accused for commission of offence U/s 279/337/338 IPC and after compliance of section 207 Cr.P.C., accused was served with the notice by the Ld. Predecessor of this court to which accused pleaded not guilty and claimed to be tried.
3. In support of its case prosecution examined as many as 9 witnesses, however Pws have wrongly been numbered as record reflects that PW4 whose examination in chief was deferred has been numbered again as PW8 while he was recalled for further examination..
4. After conclusion of prosecution evidence, statement of accused was -:2:- recorded vide which accused claimed to be innocent and denied the allegations of the prosecution against him. In his statement accused deposed that though he was the driver of the truck in question but no accident was caused by his truck.
5. I have heard Ld. APP for State and Ld. Defence Counsel for the accused and have carefully perused the entire judicial record.
6. PW3 Ct. Ashok Kumar accompanied the IO to the spot i.e. at Khanjhawla Road on receipt of call regarding accident. PW4 in his testimony on oath before the court stated that at the spot they found one mini bus No. DL-1V-0274 and truck No.HYG-2805 in accidental condition. PW4 also deposed that injured students were already removed to some hospital and that he took ruqqa prepared by the IO, got the case registered and returned to the spot and handed over the copy of FIR and ruqqa. PW4 has also proved the seizure of truck and mini bus vide Ex. PW4/A and PW4/B.
7. PW5 Ravinder Kumar is Medical Record Clerk from Jaipur Golden Hospital and he has proved the MLCs of injured persons from PW5/G to PW5/P. -:3:-
8. PW6 ASI Gurdeep mechanically inspected the offending truck No. HYG- 2805 on 28.11.1992 and accordingly proved his report vide Ex. PW6/A.
9. PW7 HC Sushila was duty officer on 27.11.1992 and she has accordingly proved the registration of the case FIR vide Ex. PW7/A.
10. PW9 Retd. SI Balbir Singh is the IO in the present case and in his testimony on oath he has narrated the entire manner of investigation carried on by him on 27.11.1992 on receipt of DD No.7A. PW9 has also proved ruqqa Ex. PW8/B and his site plan Ex. PW8/C besides other documents prepared by him during investigation.
11.PW10 Dr. Rohit proved the report of radiologist Dr.P.K.Sharma Ex. PW10/A besides identifying the signatures of doctors on Ex. PW5/D.
12.Besides these formal witnesses, prosecution also examined injured persons namely Smt Promila as PW1, Smt. Sneh Lata PW2 and Sardar Singh PW3 in support of its case. All these Pws corroborated the facturm of accident .
13.Out of the ten witnesses examined by the prosecution, three witnesses -:4:- namely PW1 Smt. Promila, PW2 Smt. Sneh Dabas and Pw3 Sardar Singh are injured and eye witness. Although in their statements both PW1 and PW2 have categorically disclosed that the accident in question was actually caused by truck in question which was being driven at very high speed when it hit the mini school bus from the front after coming from the front after coming from the road side but both these witnesses failed to identify the accused as driver of the offending truck No. HYG- 2805. This missing ingredient which can link the accused Dharam Pal with this case was successfully introduced by PW3 Sardar Singh when he stated that ....... meantime the truck no. HYG-2805 being driven by the accused Dharampal now present in the court came at a speed and in negligent manner from our opposite side and hit my said mini bus from the driver side front corner of the said mini bus". This statement of the witness has been duly corroborated by site plan Ex. PW8/C which shows that the offending truck which was coming from the opposite side came from the opposite side on the wrong way and hit the school bus carrying children head on. As a result of the impact not only the driver and school teachers were severely injured, the children who were sitting in the bus had also suffered injuries. -:5:-
14.Record shows that in his statement U/s 313 Cr.P.C. the accused has conceded that he was actually driving the truck No. HYG-2805 on the aforesaid date, time and place but the defence taken by Ld. Defence counsel counsel is that the truck being driven by the accused Dharam pal did not actually cause the accident. It is the case of the accused that rather accused reached the spot with his truck after the accident was caused. In this regard if the contention of LD. Defence counsel is accepted that no collision had taken place between the truck of accused and school bus than how come the truck driven by the accused had suffered severe structural damage on the front portion as per mechanically inspection report Ex. PW6/A. This report prepared by PW6 categorically shows that the truck of the accused had following broken portion
- Front right side bumper broken
- Front show flab and jali berth class broken
- Front right driver side door damaged&
15.These structural damages to heavy vehicle like the truck of the accused could be caused only on the head on collision as narrated by the injured pubic witnesses in this. In this respect the contention of LD. Defence -:6:- counsel that this mechanical inspection report shall not be read against his since it does not contain the engine number and chasis number , is found to be full wholely unsatisfactory.
16.Once the Mechanical Inspector has categorically mentioned the registration number of the truck as HYG-2805, then the mere non mentioning of engine and chasis number as alleged can not be allowed to be made a tool to cram the apparently believeworthy .
17.It is further argued by Ld. defence counsel that even though accused has been identified by PW3 as the driver of the offending vehicle , the same can not be relied against his client since no formal TIP was got conducted by the IO at the time of investigation. In this regard it is observed that although had the IO got the formal TIP conducted, it would have further strengthened the prosecution case but its absence in the facts and circumstances of the case can not have the effect of proper identification of the accused by witness in the court.
18.It is settled legal preposition that identification of the accused by witness in the court during the course of trial while his deposition is being -:7:- recorded is substantive piece of evidence whereas holding of TIP during the course of investigation is mere corroborative piece of evidence. The defence can not be allowed to dislodge the substance piece of evidence on a plea that the corroboration piece of evidence which could have been arranged is not available.
19.TIP in the court is admissible as per section 9 of Indian Evidence Act . In In (1970) he Supreme Court case 518 it has been observed that "
absence of Test Identification Parade is not fatal in all. In Malkhan Singh Vs. State of MP 2003(8) RCR Crl. Page 551 Hon'ble Supreme Court ruled that :-
" failure to hold Test Identification Parade would not make the inadmissible the evidence on identification. The weigh to be attached with such identification should be the matter for the Court of fact. In appropriate cases it may accept the evidence of identification even without insisting of corroboration.
In case Sarwan Singh Vs. Stae of Punjab 2002(4) RCR Criminal 471 Hon'ble Supreme Court has held that -
"In case where TIP was not held order of conviction can be passed on the basis of identification of accused in the court if the witnesses are credible."
In case Dana Yadav @Dahu Vs. State of Bihar AIR 2002 SC 3325 has -:8:- held that:-
the identification of accused by a witness in the court is substantive evidence whereas identification in TIP is primary and same can be only used to corroborate TIP of the accused by witness."
In Dastgir Shab vs. State Karnatak 2004(1) JT (Judgement Today) 635 SC, Hon'ble Supreme Court observed while referring to section 9 of the evidence act that :-
No law states that non holding of TIP would by itself disprove the prosecution case."
20.The contention of Ld. Defence to not to rely the identification of the accused by witness looses steam in view of the aforesaid law. Moreover, it is further settled legal preposition that irregularity or omission on the part of IO during the course of investigation should not be allowed to make a tool to dislodge the otherwise believeworthy prosecution story.
21.The other contention raised by Ld. Defence counsel is that in this case prosecution failed to examine the superdar of the vehicle. In my considered view the contention of the LD. Defence counsel is inconversant since non examination of the superdar or non production of the vehicle has in any manner prejudice to the state since the accused -:9:- has already stated in his 313 Statement that he was the driver of the truck in question on the above mentioned ate time and place. Once not only the identity of the accused is disputed but also the fact that vehicle is not being driven by the accused is disputed by the defence, the examination of the superdar as painted out is reduced after a formality and as such it can not have any affect on the merits.
22.It has further been contended by Ld. Defence counsel that PW3 Sardar Singh who was driving school bus was handicap having his one hand cut and as such the accident could have been occurred because of his negligent driving. I do not find any force in the contention of the Ld. Defence counsel , since not only the prosecution witness but in the site plan also it has clearly been mentioned on record that it was only the accused who brought his truck on the wrong side at a fast speed when he hit the mini school bus. There is nothing on record to suggest that PW Sardar Singh who was ex service man was in any manner incapable to properly drive the vehicle. Moreover, there is also nothing on record to show that the accident took place on account of the inability of the aforesaid vehicle of Sardar Singh.
-:10:-
23. The last argument putforth by the Ld. defence counsel is that the case in hand by prolonged trial prosecution failed to examine the IO in this case as a result the vital documents like seizure memo etc. remained unexhibited. In this regard I am of the considered view that had the IO being examined in this case, his deposition must would have proved more light on the steps taken during course of investigation but mere technical flaw of non examination of IO can not be allowed to make a tool to dislodge the otherwise established case of the prosecution. It has been observed by Supreme Court of India in AMBIKA PARSAD. Vs STATE IN 2000 Crl .LAW JOURNAL 810 that :-
"the prosecution case can not be allowed to suffer at the hands of IO and the IO cannot be permitted to hold the prosecution to ransom by his deliberate act."
In case titled Bihari Vs. State 1996 Crl.Law Journal 1653 (HC) Hon'ble Supreme Court rules that :
"Non examination of Investigating Officer may caused prejudice to accused taken into account the facts and circumstances of the case but no universal straight jacket formula should be laid down that non examination per se vitiate criminal trial."
24.The last contention raised by Ld. defence counsel is that out of three public witnesses, two public witnesses have failed to disclose the year of -:11:- accident besides the registration number of the offending vehicle. In this regard it is observed that a rustic witness belonging to the uneducated poor strata of the society is not supposed to be approached sophisticatedly in their deposition recorded after about 10 years of incident. It has been observed by Hon'ble Supreme Court in AIR 1973 SC2622 that " Rustic witness not to be approached sophisticatedly."
25.By concluding the above discussion in my considered view the prosecution has successfully proved its case on record beyond the shadow of doubt. Not only the facturm of identification of accused has been proved but also the rash driving which led to the cause of accident in question has been proved as . It has duly been proved on record that mini school bus was hit by the speedy truck in question driven by the accused . Accused Dharampal is, therefore, held guilty for committing offence punishable U/s 279/337/338 IPC and thus accused Dharampal stands convicted accordingly. However, convict shall be heard separately on the point of sentence.
ANNOUNCED AND DICTATED IN THE OPEN COURT ON 19.1.2007.
(SURINDER S. RATHI) METROPOLITAN MAGISTRATE DELHI -:12:- IN THE COURT OF SH. SURINDER S. RATHI :
MM: ROHINI COURTS : DELHI State vs. Dharampal FIR No. : 549/92 PS : Sultan Puri U/s 279/ 337/338 IPC 29.1.07 Pr: Ld. Relieving APP for state Convict in person with Ld. Counsel One of the injured persons namely Smt. Promila Vide separate judgment dated accused was convicted for commission of offence punishable u/s 279/337/338 IPC vide judgment dated 19.1.2007 .
Heard arguments on point of sentence and have perused the case file carefully.
Submissions on the point of sentence heard and file perused.
Lenient view is prayed by Ld. Defence Counsel on the ground that this is first conviction of the accused Dharampal. It is stated that he is a poor man and that he is earning his livelihood by running a road side tea shops. It is submitted that he is the only bread earner in his family to look after his wife and widow mother. He does not have any child. It is also submitted that this case pertains to the year 1992 and that he has already faced trial for around 17 years. -:13:-
On the contrary it is submitted by the Ld. APP that convict does not deserve any leniency since by his act of negligence and rashness he caused head on collision of his truck with the school bus carrying minor children aged between four years to 12 years. One the injured Smt. Promila is present today in the court along with the accused has also stated that at the time of accident, the vision was not very clear on account of fog.
Considering the totality of circumstances and the material available on record and also in view of judgment titled Sevaka Perumal vs. State AIR 1991 SC 1463 Hon'ble Supreme Court wherein it has been observed that :
"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society cannot long endure under serious threats. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.", convict Dharampal is sentenced to undergo imprisonment till the rising of the court besides fine of Rs.1000/- I/D to undergo SI for seven days for committing offence punishable U/s 279 IPC . Convict is further sentenced imprisonment TRC besides to pay a fine of Rs.1000/- I/D to undergo SI for seven days for -:14:- committing offence punishable U/s 337 IPC and for committing offence punishable U/s 338 IPC convict is sentenced imprisonment TRC besides paying fine of Rs.1000/- I/D to undergo SI for seven days.
Besides this convict is directed to compensate the injured by paying Rs.2000/- each to all the injured including minor children and teachers except Sardar Singh who was the driver of the mini school bus U/s 357 Cr.P.C. Since Sardar Singh who was the driver of mini bus received grievous injuries , he is ordered to be paid Rs.3500/- I/D to undergo SI for 15 days. As far as payment of compensation of Smt. Promila is concerned, it is ordered to be made in cash today in the court itself as she is present in the court. As far as remaining 14 victims are concerned , in order to avoid remittance hassles from the treasure, convict is directed place on record individual bank draft in the name of injured persons within one week from the date of order.
Copy of order on sentence and judgment supply to him free of cost.
ANNOUNCED AND DICTATED IN THE OPEN COURT ON 29.1.07 (SURINDER S. RATHI) METROPOLITAN MAGISTRATE DELHI -:15:-