Delhi District Court
State vs . Lalit Mohan Joshi on 17 July, 2008
State Vs. Lalit Mohan Joshi
FIR No.: 770/95
IN THE COURT OF SHRI MAHESH CHANDER GUPTA
ADDL. CHIEF METROPOLITAN MAGISTRATE : ROHINI: DELHI.
State Vs. Lalit Mohan Joshi
FIR No.: 770/95
PS : Janak Puri
U/s 279/304A IPC
JUDGMENT :-
(a) Sl. No. of the case : 465/02 of 2006
(b) Date of commission of the offence : 24.10.1995
(c) Name of the complainant if any : State
(d) Name of the accused person,
and his parentage and Address : Lalit Mohan Joshi
S/o Sh. Nathu Ram Joshi
R/o D-297 Pocket-II Phase-I
Mayur Vihar, New Delhi.
(e) Offence complained of : U/s 279/304A IPC
(f) Plea of the accused : Pleaded not guilty.
(g) Final Order : Convicted.
(h) The date of such order : 17.07.2008.
Date of institution of case: 11.04.1996
Date on which judgment reserved: 10.06.2008.
Date of judgment: 17.07.2008.
BRIEF STATEMENT OF THE REASONS FOR DECISION:
The prosecution case in brief is, that on 24.10.1995 at about 5.40 pm at Pankha Road cut in front of Janak Cinema Picket, Janakpuri, Delhi, within the jurisdiction of PS Janakpuri accused Lalit Mohan Joshi was driving a Scooter No. State Vs. Lalit Mohan Joshi FIR No.: 770/95 DDR 1512 in a rash and negligent manner so as to endanger human life and personal safety of others or likely to cause hurt or injury on the person of others and while driving the aforesaid scooter in the aforesaid manner struck the same against one person namely Raj Bahadur and caused his death not amounting to culpable homicide and thereby committed offences punishable U/s 279/304A IPC.
2. In support of its case prosecution has produced and examined ten witnesses namely PW-1 JC. Vashist, Record Clerk, DDU Hospital, PW-2 HC Shishupal, PW-3 HC Girwar Singh, PW-4 Dr. K. Goyal Mortuary Subji Mandi, Delhi, PW-5 HC Krishan Singh, PW-6 Ct. Ravinder, PW-7 SI Suresh Chander, PW-8 Ct. Jawahar Singh, PW-9 HC Bhagirath Mal and PW-10 ASI Daya Nand.
PW-1 J.C. Vashist, who proved the MLC of injured (since deceased) Raj Bahadur Ex.PW-1/A. PW-2 HC Shishupal, who is the Duty Officer, who proved the copy of the FIR No. 770/1995, Ex. PW 2/A. PW-3 HC Girwar Singh, who is the alleged eye witness to the incident and proved the statement made to the police Ex.PW-3/A. PW-4 Dr. K. Goel, who conducted postmortem on the body of deceased Raj Bahadur and proved the postmortem report Ex.PW-4/A. PW-5 HC Krishan Singh, who is the photographer, who proved the photographs of the scooter no. DDR 1512 Ex.PW-5/A, Ex.PW-5/B and also proved the negatives collectively Ex. P-1.
State Vs. Lalit Mohan Joshi FIR No.: 770/95 PW-6 Ct. Ravinder, who deposed that on 24.10.1995 he joined investigation with IO HC Dayanand (PW-10) and deposed on the investigational aspects and also proved the seizure memo of the scooter no. DDR 1512 Ex.PW-6/A. PW-7 SI Suresh Chander, who mechanically inspected scooter no. DDR- 1512 and proved its mechanical inspection report Ex.PW-7/A. PW-8 Ct. Jawahar Singh, who deposed that on 25.10.1995 he joined investigation with IO HC Daya Nand (PW-10) and had taken the dead body of the deceased Raj Bahadur to the Mortuary Subzi Mandi and the said dead body was identified by three other persons namely Jung Bahadur, Hira Bahaur and one more person whose name he does not remember and after identification the dead body was sent for postmortem.
PW-9 HC Bhagirath Mal, who is 'Soon after the incident' an alleged eye witness and also deposed regarding the investigation carried by the police.
PW-10 ASI Daya Nand, who is the IO of the case, who deposed on the investigational aspects. Besides proving other memos also proved rukka Ex. PW 10/A, site plan Ex.PW-10/B, personal search memo of the accused Ex.PW-10/C, seizure memo of the driving licence of the accused Ex.PW-10/D, request for mechanical inspection of the scooter no. DDR 1512 Ex.PW-10/E, request for conducting postmortem on the body of deceased Raj Bahadur Ex.PW-10/F, death report form Ex.PW-10/G, receipt regarding handing over of the dead body Ex. PW- 10/H. The reports on the summons of PW Dhan Bahadur, Jung Bahadur and Vir Bahadur that they have left the said addresses and their whereabouts were not State Vs. Lalit Mohan Joshi FIR No.: 770/95 known Ex.P-1 to Ex.P-3 respectively.
3. Statement of accused Lalit Mohan Joshi was recorded U/s 313 Cr.P.C wherein he has denied the allegations of the prosecution and stated that he is innocent and has been falsely implicated in this case. Accused opted to lead defence evidence but did not lead any defence evidence.
4. I have heard the Ld. APP for the State and the Ld. Counsel for the accused and have also carefully perused the entire record and the relevant provisions of the law.
5. It is settled principle of law that while appreciating evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks, and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the roof of the matter, would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be State Vs. Lalit Mohan Joshi FIR No.: 770/95 proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. The Supreme Court in the case of State Vs. Wassan Singh-AIR 1981 SC 697 observed:
"Where the witnesses are examined at the trial, 17 months after the incident, such discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in the statements of truthful witnesses, particularly when they are examined depose to events which happened long before their examination. Such discrepancies are hardly a ground to reject the evidence of the witness when there is general agreement and consistency in regard to the substratum of the prosecution case." (Mahmood Vs. State 1991 RLR 287).
6. The prosecution evidence may suffer from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspect thereof. In the former case, the defence may be justified in seeking, advantage of the inconsistencies in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases, as has been laid down by the Supreme Court in Krishna Pillai Vs. State AIR 1981 SC 1237. In the deposition of witnesses there are always normal discrepancies, however, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at time of occurrence and the like. (Mahmood Vs. State 1991 RLR
287).
7. In order to bring home the guilt of the accused, the prosecution must prove beyond doubt that :
State Vs. Lalit Mohan Joshi FIR No.: 770/95
1. The accused was driving the offending scooter at the aforesaid date, time and place.
2. The accused was rash and negligent in driving the said scooter.
3. The death not amounting to culpable homicide of Raj Bahadur was caused due to the accident by the rash and negligent driving on the part of the accused.
POINT NO.1 The statement of PW-3 HC Girwar Singh clearly shows beyond doubt that it was the accused, who was driving the scooter on the date, time and place of the accident.
PW-3 HC Girwar Singh in his examination-in-chief has inter-alia deposed that :
"On 24.10.95 I was posted in PS Janakpuri as HC and I was posted at Janak Chech (Check) Post Near Janak Cinema from 8.00 am to 8.00 pm on 24.10.95. I was standing outside the check-post at about 5.40 pm, I saw that accused present in court was coming driving scooter no. DDR-1512 from Nangal side who was driving his scooter in a negligent manner. On the scooter there was a woman and two children sitting behind accused present in court. Accused present in court hit a person who crossing the road from Janakpuri side to Sagar Pur side and the said man had fallen on the road in front of scooter and accused present in court also fell down alongwith woman and children. I ran towards them and other persons also assembled at the spot. I helped accused present in court for making him stand......"
There is nothing in his cross-examination so as to impeach his creditworthiness. Inspite of incisive cross-examination nothing material has been brought out on the record as to discredit the testimony of the said witness.
PW-3 HC Girwar Singh in his testimony has also specifically deposed that accused was driving the scooter.
State Vs. Lalit Mohan Joshi FIR No.: 770/95 The careful perusal and analysis of the cross-examination of PW-3 HC Girwar Singh inter-alia indicates that accused has not disputed or denied his presence on the date, time and place of incident.
The relevant part of the cross-examination of PW 3 HC Girwar Singh reads as :
"It is wrong to suggest that accused had not hit his scooter against injured."
"It is also incorrect to suggest that there was no negligency on the part of the accused in driving his scooter. It is incorrect to suggest that injured had fallen of his own. It is also incorrect to suggest that no public person had become ready to be a witness as accused had not committed any accident."
Moreover in his statement u/s 313 Cr.P.C accused has not denied the factum of driving the scooter on the date, time and place of accident.
The relevant part of the statement of accused u/s 313 Cr.P.C reads as :
"Q.7. Do you want to say anything else?
Ans. I am a responsible citizen. I was driving the scooter no. DDR-
1512 at very low and controlled speed. My wife and two small kids were with me. I have not caused any death or even any injury to anybody. I have not caused any accident and I am not responsible for any accident. I am innocent and falsely implicated in this case."
In view of above and in the circumstances it is proved beyond doubt that it was the accused, who was driving the scooter on the aforesaid date, time and place of accident.
State Vs. Lalit Mohan Joshi FIR No.: 770/95 POINT NO. 2:-
PW-3 HC Girwar Singh in his examination-in-chief has inter-alia deposed that :
"On 24.10.95 I was posted in PS Janakpuri as HC and I was posted at Janak Chech (Check) Post Near Janak Cinema from 8.00 am to 8.00 pm on 24.10.95. I was standing outside the check-post at about 5.40 pm, I saw that accused present in court was coming driving scooter no. DDR-1512 from Nangal side who was driving his scooter in a negligent manner. On the scooter there was a woman and two children sitting behind accused present in court. Accused present in court hit a person who crossing the road from Janakpuri side to Sagar Pur side and the said man had fallen on the road in front of scooter and accused present in court also fell down alongwith woman and children. I ran towards them and other persons also assembled at the spot. I helped accused present in court for making him stand......."
"This accident had taken place due to negligent driving and mis- understanding and under confusion of the accused."
During his cross-examination PW-3 HC Girwar Singh has deposed that :
"I had seen the injured while he was before the scooter. The injured was crossing the road slowly. I had seen him from the spot where I was standing. I was seeing in front of mine. It is correct that I was seeing towards the place of occurrence and my face was towards the place of accident. It is incorrect to suggest that injured was coming on the spot running from Janak Puri side and from behind police picket and had fallen down on his own at the spot."
"It is incorrect to suggest that the injured had fallen on the road of his own. It is also incorrect to suggest that injured had been hit on the divider."
His testimony is based on actual observations than otherwise. There is nothing in his statement to suggest that he has any animus against the accused to falsely implicate him in the case. Inspite of incisive cross-examination nothing material has been brought out on the record as to discredit the testimony of the said State Vs. Lalit Mohan Joshi FIR No.: 770/95 witnesses.
The fact that the mechanism of the offending vehicle scooter no. DDR 1512 in perfect order has been proved by PW-7 SI Suresh Chander, who proved the mechanical inspection report of the scooter Ex.PW-7/A. It is also not the case of the accused that the that the mechanism of his scooter was not in perfect order.
The mechanical inspection report of the scooter Ex.PW-7/A inter-alia reads :-
1).Clutch system: Clutch system O.K. but clutch lever broken 1/3 from tip side.
2).Gears : O.K.
3).Race : O.K.
4).Brakes : O.K.
5).Horn : O.K.
6).Handle: O.K. Fresh damages:-
1).Head light glass broken.
2).Clutch lever 1/3 portion from tip side broken.
3).Scratch marks on engine cover i.e on left side.
From above it is clearly indicated how rashly the scooter was being driven by the accused and the impact with which it (scooter) struck against the deceased State Vs. Lalit Mohan Joshi FIR No.: 770/95 Raj Bahadur, resulting in breaking of clutch lever 1/3 portion from tip side; breaking of head light glass and the scratch marks on the left side of the engine cover. The photographs of the scooter Ex. PW-5/A, Ex. PW-5/B also indicate the condition of the scooter.
Had the scooter not been driven rashly or negligently then there could not have occurred any damage to the mechanical system and the body of the scooter as detailed herein above in the mechanical inspection report of the scooter Ex. PW 7/A. There is nothing in the cross-examination of PW-7 SI Suresh Chander as to impeach his creditworthiness.
In view of above, the rashness/negligence on the part of the accused thus established beyond reasonable doubt. In the circumstances the accident was solely due to the negligence on the part of the accused Lalit Mohan Joshi. POINT NO. 3:-
PW-1 J.C. Vashist has proved the MLC of injured (since deceased) Raj Bahadur Ex.PW-1/A. PW-4 Dr. K. Goel proved the postmortem report of the deceased Raj Bahadur Ex. PW-4/A and has opined that all injuries were ante mortem and were possible in vehicular accident. Cause of death was haemorrhagic shock due to lever and splenic injury associated with head injury.
During his cross-examination PW-4 Dr. K. Goel has inter-alia deposed that :
State Vs. Lalit Mohan Joshi FIR No.: 770/95 "The basis of my opinion is the observations made on the dead body during postmortem and reconstructing the pattern on injuries. The pattern of abraisens (abrasions) at different parts of body of small size, fractures of the ribs were not consistent with assault but were possible in automobile accidents. These injuries are not possible by striking against some stationary object like tree, central verge of road or while moving or walking etc., There is nothing in his cross-examination so as to impeach his creditworthiness. Inspite of incisive cross-examination nothing material has been brought out on the record as to discredit the testimony of the said witness.
8. Ld. Counsel for the accused submitted that the prosecution has miserably failed to produce any evidence to prove that the accused caused death of any person. According to PW 3 HC Girwar Singh, on the day of incident, the accused had hit his scooter against a person who was crossing the road and the said man fell down on the road and got injured. Thereafter, the CATS Ambulance reached at the spot and the injured was taken to the DDU hospital in that ambulance. Neither the PW 10 I.O. ASI Daya Nand had been able to show nor made any investigation, as to when the injured person had actually died or that the unknown dead body found in the DDU hospital was that of the person injured by the accused as alleged. The dead body found in the Hospital was not even got identified by the persons who had alleged to have seen the incident or seen the injured like PW 3 Girwar Singh or PW 9 HC Bhagirath Mal in order to show that the dead body was of the same person. PW10 himself stated in the cross-examination that he had not investigated about the number of CAT ambulance who brought the body to hospital or about the officials / driver / any other person who brought deceased to hospital. He had also not State Vs. Lalit Mohan Joshi FIR No.: 770/95 examined or recorded the statement of the constable at DDU hospital who informed him about the CAT ambulance which brought dead body. He even did not know his name. There is no material on record to show that the person who was alleged to have been hit by the accused had infact died. It shows that the prosecution miserably failed to prove either by direct or circumstantial evidence that the person (Raj Bahadur) who was found brought dead in the hospital by IO was the same person who was alleged to have been injured by the accused on the day of incident, which means that the accused had not caused the death of the alleged deceased (Raj Bahadur) or any other person.
On careful perusal and analysis of the entire material on record, I do not find any substance in the said submission of Ld. Counsel for accused. PW 3 HC Girwar Singh in his examination-in-chief has deposed that the accident took place at about 5.40 PM, he informed the PS Janak Puri on wireless. CATS Ambulance reached at the spot and the injured was taken to the DDU hospital in CATS Ambulance. During his cross-examination by the Ld. Counsel for the accused, PW 3 HC Girwar Singh has deposed that "The ambulance has come at the spot within 8 minutes."
PW 1 J.C. Vashist in his examination-in-chief has deposed that :
" I have seen MLC No. 01394 dtd. 24.10.95 in respect of one unknown person who was brought to hospital at about 6.15 pm. The injured was brought dead. The MLC of the injured has been prepared by Dr. Veena Roy and same is Ex. PW 1/A upon which I identify her sign at pt. A."
The perusal of the MLC Ex. PW 1/A of the deceased Raj Bahadur inter- alia shows that :
State Vs. Lalit Mohan Joshi FIR No.: 770/95 Date and hour of arrival 24.10.95 at 6.15 PM.
PS Janak Puri
Brought in by CATS é alleged h/o RTA.
Advice Body to be packed and sent to Mortuary.
From above it stands clearly established that the accident took place on 24.10.95 at about 5.40 PM and dead body was brought at 6.15 PM at DDU hospital by CATS and was advised that the dead body to be packed and sent to mortuary.
There was no delay with regard to carrying of the injured / dead body from the spot to the DDU hospital. Further PW 8 Ct. Jawahar Singh in his examination-in-chief has specifically deposed that :
" On 25.10.95 I was posted at PS Janak Puri. I was alongwith ASI Daya Nand and upon his directions I had taken one dead body of name unknown to the mortuary at Sabji Mandi. Three persons namely Jang Bahadur, Hira Bahadur & me more persons whose name I do not recollect, had identified the dead body. The name of deceased was known as Raj Bahadur. After identification, dead body was sent up for post-mortem."
In the circumstances, the suggestion put to PW 10 ASI Daya Nand, during his cross-examination that the person who was brought dead in the hospital was not the same person who is alleged to have met with the accident, which has been stated to be incorrect by him (PW 10 ASI Daya Nand) has no substance and the said suggestion appear to have been made by the accused in order to save his skin from the clutches of law. It is pertinent to reproduce the relevant part of the cross- examination of PW 10 ASI Daya Nand :
State Vs. Lalit Mohan Joshi FIR No.: 770/95 " It is incorrect to suggest that the person who was brought dead in the hospital was not the same person who is alleged to have met with the accident."
Moreover, except to the said bare suggestion accused had not led any evidence on record to fortify his said propounded theory of "the person who was brought dead in the hospital was not the same person who is alleged to have met with the accident." Further the said suggestion as put to IO PW 10 ASI Daya Nand, as reproduced herein above, is an afterthought as no such suggestion was either put to PW 3 HC Girwar Singh or PW 6 Ct. Ravinder or PW 8 Ct. Jawahar Singh or PW 9 HC Bhagirath Mal during their cross-examination.
9. Ld. Counsel for the accused submitted that no evidence has been produced to prove that the vehicle / scooter was driven rashly or negligently by the accused. None of the witnesses had stated that the vehicle in question was being driven in fast speed or rashly nor they have been able to show as to how it was driven negligently nor there is any circumstantial evidence on record to suggest that the vehicle was being driven negligently by the accused. PW 3 HC Girwar Singh (who is stated to have seen the occurrence) himself stated in his cross-examination that there was heavy traffic on the road at the time of accident. He further stated that some vehicles were being driven less than that speed but no vehicles were being driven more than 35 km/h. He nowhere stated anything to show that the vehicle was being driven rashly or negligently. No skid marks have been found on the spot. Nor it is the case of the prosecution that the victim was run over by the vehicle of the accused. Nor it is the case of the prosecution that the vehicle did not stop at the time of State Vs. Lalit Mohan Joshi FIR No.: 770/95 alleged hitting or it fell down at some distance. PW 2 himself has stated that the accident has taken place due to misunderstanding and under confusion of the accused. There was no zebra crossing for the by-passers and there was no traffic lights installed and no police man was controlling the traffic. The Hon'ble Supreme Court and High courts have held in catena of judgments that mere happening of accident is not sufficient and the onus is on the prosecution to establish that the accident has been caused due to rash or negligent driving and it can not be inferred.
On careful perusal and analysis of the entire material on record, I do not find any substance in the said submission of Ld. Counsel for accused, in view of as to what has been proved and established on record and in view of MLC Ex. PW 1/A, post-mortem report Ex. PW 4/A, mechanical inspection report of the scooter Ex. PW 7/A and testimony of PW 3 HC Girwar Singh.
PW 3 HC Girwar Singh in his examination-in-chief has specifically deposed that the scooter no. DDR-1512 was being driven in a negligent manner and the accident had taken place due to negligent driving, misunderstanding and under confusion of the accused. The words 'misunderstanding' and 'under confusion of the accused' as deposed by PW 3 HC Girwar Singh cannot be construed / twisted / torn out of context. His testimony is based on actual observations than otherwise. His testimony is unblemished, convincing and trustworthy. There is nothing in his statement to suggest that he had any animus against the accused to falsely implicate the accused in the case. The post-mortem report of deceased Raj Bahadur Ex. PW 4/A and mechanical inspection report of the scooter no. DDR-1512 Ex. PW 7/A State Vs. Lalit Mohan Joshi FIR No.: 770/95 clearly point towards the rashness / negligence on the part of the accused. Their details are being discussed in the judgment.
10. Ld. Counsel for the accused submitted that there is no material on record to show that the accused caused the alleged accident or his scooter hit the victim at all. PW 3 HC Girwar Singh states that the accused was driving the scooter and one woman and two children were sitting behind the accused. It is also the case of prosecution that after hitting the victim, the scooter fell down alongwith its rider and said passengers and they also suffered injuries alongwith the victim and the accused and his family were admitted in Kartik Nursing Home. However, the falsity of above contention can been seen from the fact that the prosecution has not produced any medical record / MLC of the accused or its family members from Kartik Nursing home nor it recorded statement of concerned doctor at said nursing home in order to prove that they had also suffered any injury by that alleged accident. Since no accident had been caused by the accused, there was no question of accused and his family sustaining any injuries as alleged. Otherwise, had the accident been caused by the accused, it is highly improbable and unbelievable that the accused and his family would not have received any injury on account of falling from the scooter especially when the victim had suffered such sever injuries as alleged.
On careful perusal and analysis of the entire material on record, I do not find any substance in the said submission of Ld. Counsel for accused. PW 3 HC Girwar Singh in his examination-in-chief has inter-alia deposed that :
State Vs. Lalit Mohan Joshi FIR No.: 770/95 " As the children of the accused received injuries I allowed him to take them to the nursing home and I came to know later that the children and wife of accused had been admitted in Kartika Nursing home. Accused after admitting his wife and children in the nursing home, came back at the spot."
During his cross-examination PW 3 HC Girwar Singh has deposed that :
" I do not know whether any MLC regarding injury received by children of the accused was prepared or not."
PW 10 ASI Daya Nand, IO, in his cross-examination has deposed that :
" It was HC Girwar who informed me that accused Lalit Mohan Joshi had also received injuries and had gone to Kartik Nursing Home. I have not collected the MLC of accused from Kartik Nursing Home. When I visited Kartik Nursing Home the wife of accused alongwith his two children were also present there. The wife and children of accused also sustained injuries but I had not collected their MLCs or prescriptions."
On careful perusal and analysis, the testimonies of PW 3 HC Girwar Singh and PW 10 ASI Daya Nand indicate that accused has nowhere disputed that his wife and children had not sustained injuries or that they were not taken to Kartik Nursing Home by him or that they (wife and children of accused) remained with him (accused) after the accident, as it is admitted case of accused that his wife and two children were with him when he was driving scooter no. DDR-1512.
The relevant part of the statement of accused u/s 313 CrPC reads as :
"Q.7. Do you want to say anything else?
Ans. I am a responsible citizen. I was driving the scooter no. DDR-
1512 at very low and controlled speed. My wife and two small kids were with me. I have not caused any death or even any injury to anybody. I have not caused any accident and I am not responsible for any accident. I am innocent and falsely implicated in this case."
In the circumstances, non production of medical record / MLC of accused State Vs. Lalit Mohan Joshi FIR No.: 770/95 or his family members from Kartik Nursing Home does not make the case of the prosecution as to disbelieve the same. The testimonies of PW 3 HC Girwar Singh and PW 10 ASI Daya Nand inspire confidence.
The Hon'ble High Court of Delhi in case Leela Ram Vs. State of Haryana (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.
The Hon'ble Supreme Court of India in case Sucha Singh Vs. State of Punjab (2003) 7 SCC 643 has held that even in criminal trial, the word "proof beyond reasonable doubt" is a guideline and not a fetish. The prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt but a fair doubt based upon reasons and common sense. It must grow out of evidence in the case. Law cannot afford any favourite other than truth. It was further held in the said judgment that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law.
State Vs. Lalit Mohan Joshi FIR No.: 770/95 The Hon'ble Supreme Court also referred to Gurbachan Singh vs. Satpal Singh (1990) SCC 445.
11. Ld. Counsel for the accused submitted that the prosecution could not explain as how the injuries if suffered by the victim due to alleged hit by the scooter were scattered at different parts of his body especially when it is not their case that the victim was run over by the scooter or that it had fallen over the victim. The prosecution also failed to show as which side and part of the body was hit by the scooter. PW 4 Dr. K. Goel in his cross-examination could not give any opinion regarding the direction of impact / force of the vehicle nor the kind of vehicle which caused these injuries. It is therefore clear that it is highly unbelievable that the kind of injuries suffered by the victim can be caused by the scooter hitting it and that also at normal speed. PW 4 Dr. Goel's report with regard to cause of death of the deceased is based on the information received by him from PW 10 ASI Daya Nand, IO, that the victim has met with the accident with a motor vehicle at the time the body was taken to PW 4 for post-mortem examination. The very perusal of the MLC as well as post- mortem report speaks for itself. Furthermore, the post-mortem was conducted 5 days after the death which also cast doubt about the opinion of the PW 4 regarding the cause of death. Even otherwise, the victim could not have suffered the pattern of injuries sustained by him, if the accident had happened as shown in the site plan.
On careful perusal and analysis of the entire material on record, I do not find any substance in the said submission of the Ld. Counsel for accused. At the cost State Vs. Lalit Mohan Joshi FIR No.: 770/95 of repetition, PW-4 Dr. K. Goel proved the postmortem report of the deceased Raj Bahadur Ex. PW-4/A and has opined that all injuries were ante mortem and were possible in vehicular accident. Cause of death was haemorrhagic shock due to lever and splenic injury associated with head injury.
During his cross-examination PW-4 Dr. K. Goel has inter-alia deposed that :
"The basis of my opinion is the observations made on the dead body during postmortem and reconstructing the pattern on injuries. The pattern of abraisens (abrasions) at different parts of body of small size, fractures of the ribs were not consistent with assault but were possible in automobile accidents. These injuries are not possible by striking against some stationary object like tree, central verge of road or while moving or walking etc., There is nothing in his cross-examination so as to impeach his creditworthiness. Inspite of incisive cross-examination nothing material has been brought out on the record as to discredit the testimony of the said witness.
At the risk of repetition, the prosecution evidence may suffer from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspect thereof. In the former case, the defence may be justified in seeking, advantage of the inconsistencies in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases, as has been laid down by the Supreme Court in Krishna Pillai Vs. State AIR 1981 SC 1237.
State Vs. Lalit Mohan Joshi FIR No.: 770/95
12. Ld. Counsel for the accused submitted that the mechanical inspection of the scooter had been done by PW 7 SI Suresh Chander and in his report i.e. Ex. PW7/A, he has stated that the vehicle was fit for road test and the head light glass and 1/3 portion of the clutch at dip (tip) side broken and scratch mark on the engine cover. He nowhere stated that these minor damages were recent and not old. Even if these minor damages are believed to be true, it itself shows that the scooter was driven in slow speed and was in full control. Furthermore, the prosecution has failed to prove as to how no dents occurred on the body of the scooter specially when it had been alleged to have hit the victim with such force that he had suffered such fatal injuries all over his body and moreover, after hitting, it had also fell down on the road with impact.
On careful perusal and analysis of the entire material on record, I do not find any substance in the said submission of Ld. Counsel for accused. As discussed herein above, at the cost of repetition, the fact that the mechanism of the offending vehicle scooter no. DDR 1512 was in perfect order has been proved by PW-7 SI Suresh Chander, who proved the mechanical inspection report of the scooter Ex. PW-7/A. It is also not the case of the accused that the that the mechanism of the bus was not in perfect order.
The mechanical inspection report of the scooter Ex.PW-7/A inter-alia reads :-
State Vs. Lalit Mohan Joshi FIR No.: 770/95
1. Clutch system: Clutch system O.K. but clutch lever broken 1/3 from tip side.
2. Gears : O.K.
3. Race : O.K.
4. Brakes : O.K.
5. Horn : O.K.
6. Handle: O.K. Fresh damages:-
1).Head light glass broken.
2).Clutch lever 1/3 portion from tip side broken.
3).Scratch marks on engine cover i.e on left side.
From above it is clearly indicated how rashly the scooter was being driven by the accused and the impact with which it (scooter) struck against the deceased Raj Bahadur, resulting in breaking of clutch lever 1/3 portion from tip side; breaking of head light glass and the scratch marks on the left side of the engine cover. The photographs of the scooter Ex. PW-5/A, Ex. PW-5/B also indicate the condition of the scooter.
Had the scooter not been driven rashly or negligently then there could not have occurred any damage to the mechanical system and the body of the scooter as detailed herein above in the mechanical inspection report of the scooter Ex. PW 7/A. There is nothing in the cross-examination of PW-7 SI Suresh Chander as State Vs. Lalit Mohan Joshi FIR No.: 770/95 to impeach his creditworthiness.
13. Ld. Counsel for the accused submitted that no public witness was joined in the investigation proceedings and no explanation for the same. PW 3 HC Girwar Singh had stated in his testimony that around 100-200 persons had assembled at the spot at the time of occurrence. PW 9 HC Bhagirath Mal also stated that by the time IO PW 10 ASI Daya Nand reached the spot more than 50 persons were present at the spot. However, none of them were joined in the investigation nor their statements were recorded nor they were requested to join nor any notice was given to them for the reasons best known to the IO. This shows that the entire prosecution story is highly unreliable and fabricated and cooked up.
On careful perusal and analysis of the entire material on record, I do not find any substance in the said submission of Ld. Counsel for accused. Non joining of the public witnesses does not make the prosecution case as to disbelieve the same, in view of as to what has been established on record, as discussed herein above.
The Hon'ble Supreme Court of India in case Appabhai and another vs. State of Gujarat, AIR 1988 696 (para no. 11 and 12) has held that Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve State Vs. Lalit Mohan Joshi FIR No.: 770/95 themselves. This kind of apathy of the general public is indeed unfotunate, but it is there everywhere in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused'.... The prosecution case cannot be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. We, therefore, reject the first contention urged for the appellants."
14. Ld. Counsel for the accused submitted that the testimony of PW 3 HC Girwar Singh does not inspire confidence and is discreptic and there are material contradictions in the testimonies of the prosecution witnesses. PW 3 HC Girwar Singh has stated that he was alone at the Janak Puri Police Picket at the time of accident while PW 9 HC Bhagirath Mal stated that he was also posted alongwith PW 3 HC Girwar Singh at the Janak Puri Police Picket at the time of incident. Therefore, it is clear that one of them or may be both of them are speaking lies and in fact none of them was present at the spot when the incident occurred. It is highly improbable that PW 3 HC Girwar Singh had seen the incident as he himself stated that his eye sight was going continuously weak and he was using Specs. Further, even he himself admitted that the incident occurred at a distance of more than 60 yards from the place he was standing and his eye view was also blocked by the State Vs. Lalit Mohan Joshi FIR No.: 770/95 heavy traffic as well as long divider, big railings on the divider, which he himself stated was of total height of 4-5 ft. and there were also long trees on the divider which has hindering his sight. His eye sight was so weak that he even could not even read the site plan from the judicial file and he could not identify the place of incidence in the site plan. There are other material contradictions regarding the time, day and place of arrest of the accused in the testimony of PWs besides other material contradictions, which are fatal to the prosecution case.
On careful perusal and analysis of the entire material on record, I do not find any substance in the said submission of Ld. Counsel for accused. It is natural for minor contradictions in the statements of truthful witnesses because of differences in powers of observation, retention and reproduction. The contradictions pointed out by the Ld. Counsel for accused are minor contradictions which do not go to the root of the matter and do not make the prosecution case as to disbelieve the same and there is consistency in regard to the substratum of the prosecution case. At the cost of repetition "The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable." as held in case Leela Ram Vs. State of Haryana (Supra).
In view of above, I hold that prosecution has proved beyond reasonable doubt that accused Lalit Mohan Joshi by his rash/negligent driving of the scooter no. DDR-1512 caused the death of Raj Bahadur not amounting to culpable homicide. I, State Vs. Lalit Mohan Joshi FIR No.: 770/95 therefore, hold accused Lalit Mohan Joshi guilty of the offences punishable U/s 279/304A IPC and convict him thereunder.
Announced in the open Court This on the 17th Day of July, 2008.
(Two spare copies attached) (MAHESH CHANDER GUPTA) ADDL. CHIEF METROPOLITAN MAGISTRATE ROHINI : DELHI.
State Vs. Lalit Mohan Joshi FIR No.: 770/95 IN THE COURT OF SHRI MAHESH CHANDER GUPTA ADDL. CHIEF METROPOLITAN MAGISTRATE : ROHINI: DELHI.
State Vs. Lalit Mohan Joshi FIR No.: 770/95 PS : Janak Puri U/s 279/304A IPC Order on sentence:-
Sh. Ajay Garg, Ld. Counsel for the accused Lalit Mohan Joshi on quantum of sentence, stated that accused had faced rigorous trial for 13 years since 1995 and is presently aged about 52 years and is working as a Manager (Public Relation) in ONGC. During the trial, he never defaulted in his appearance before the Court even if he was posted out of Delhi and to far cities like Mehsana and Baroda in Gujrat and has attended each and every date promptly. He always maintained a good behaviour and conduct. There has been no complaint about his having belied the trust bestowed upon him by the Court and he has never misused the liberty of bail and has always remained responsible and law abiding citizen. He has never committed any offence or accident during his tenure of driving and he is quite an expert driver. Moreover, the vehicle he was driving was a private vehicle i.e. two wheeler and not a commercial one. He is the sole bread earner in his family. His family / dependents consist of his wife Smt. Hema Joshi, who is a housewife, his mother Smt. Govindi Joshi, an old woman aged about 73 years, his son Mr. Gagan Joshi, 23 years of age and is doing his MBA from I.I.M. Calcutta and his daughter namely Charu Joshi, aged 22 years. His daughter is a mentally sick child. She was diagnosed to be the patient of Chronic Schizophrenia and due to this acute mental condition, she was opted out from Amity Business School, Noida as she was advised State Vs. Lalit Mohan Joshi FIR No.: 770/95 to remain at home. Further, on the basis of the serious illness of his daughter, the employer of the accused i.e. ONGC had transferred him to Delhi from Mehsana, Gujrat initially for a terms of two years in June, 2006 and as the condition of her daughter was not improving, the transfer orders of the accused were withdrawn and he was allowed to continue in Delhi for another two years. In case, the accused is sent to imprisonment, it will certainly lead to major complications in the life of his family and particularly his daughter. The accused belongs to a very good family and commands respect and is known in his society for his personal integrity, social behaviour and helping attitude towards others. He is a first offender and not a previous convict and holds a very good character and has clean antecedents and deserves leniency and undertakes to abide by all terms and conditions imposed, in case of his release on probation.
While Sh. P.K. Samadhiya, Ld. APP stated that the accused be dealt with strictly and substantive punishment be given to deter him from committing the same offence in future. He stated that accused has committed a very serious and grave offence of causing death of Raj Bahadur not amounting to culpable homicide due to his rash and negligent driving of scooter. He stated that a precious life has been lost due to rash and negligent act of the accused. He also referred to the case State of Madhya Pradesh Vs. Ghanshyam Singh AIR 2003 SC 3191 in which inter-alia held that :
" In view of the purpose for which a sentence is imposed, it cannot be laid down as a rule of universal application that long passage of time in all cases would justify minimal State Vs. Lalit Mohan Joshi FIR No.: 770/95 sentence. Long pendency of a matter by itself could not justify lesser sentence.
Undue sympathy to impose inadequate sentence would no more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is therefore, 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 etc. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case is the only way in which such judgment may be equitably distinguished.
The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the society's cry for justice against the criminal."
He also stated that accused deserves severest punishment and no leniency be shown to him.
State Vs. Lalit Mohan Joshi FIR No.: 770/95 I have heard the Ld. APP for the State and the Ld. Counsel for the accused Lalit Mohan Joshi on the quantum of sentence. Having regard to all the facts & circumstances of the case, the nature of the offence that accused Lalit Mohan Joshi by his rash and negligent driving of scooter no. DDR-1512, caused the death of Raj Bahadur not amounting to culpable homicide, I do not consider it to be an appropriate case for granting benefit of Section 360 CrPC or of Section 4 of the Probation of Offender Act, 1958.
In case Dalbir Singh Vs. State of Haryana 2000 IV AD (SC) 507, the Hon'ble Supreme Court has held that :
" Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their family, criminal courts cannot treat the nature of the offence U/s 304 A IPC as attracting the benevolent provisions of Section 4 of the P.C. Act. While considering quantum of sentence to be imposed for the offence causing death by rash or negligent driving of automobile, one of the prime considerations should be deterrences. A professional driver pedals the accelerator of the automobile throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance, that a rash driving need not necessarily cause any accident, or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the Court.
State Vs. Lalit Mohan Joshi FIR No.: 770/95 He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the Courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles."
Having regard to all facts and circumstances, serious nature of the offences, I am of the considered opinion that ends of justice can be met by sentencing the accused Lalit Mohan Joshi to undergo Rigorous Imprisonment (R.I.) for a period of two years and to pay a fine of Rs. 5,000/-, in default of payment of fine to undergo Rigorous Imprisonment (R.I.) for six month U/s 304 A IPC. He is further sentenced to undergo Rigorous Imprisonment (R.I.) for a period of six months and to pay a fine of Rs. 1,000/-, in default of payment of fine to undergo Rigorous Imprisonment (R.I.) for two months U/s 279 IPC. Both the sentences shall run concurrently. The period already undergone by the accused during inquiry / investigation / trial of this case shall be set off u/s 428 CrPC. Announced in the open Court This on the 26th Day of July, 2008.
(Two spare copies attached) (MAHESH CHANDER GUPTA) ADDL. CHIEF METROPOLITAN MAGISTRATE ROHINI : DELHI.