Delhi District Court
Been Observed In Inder Singh And Another vs . The State (Delhi Administration) on 5 May, 2017
IN THE COURT OF SHRI SANJEEV KUMAR, ADDITIONAL SESSIONS JUDGE-5,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
SESSION CASE NO. 1665/16
OLD SESSION CASE NO. 57/16
IN THE MATTER OF:
State
VERSUS
Utsav Bhasin
S/o Sh. N.K. Bhasin,
R/o H No. 52, Paschimi Marg, Vasant Vihar, New Delhi.
Date of institution : 28.04.2009
Date of arguments : 22.09.2016
Date of Order : 05.05.2017
JUDGMENT
1. The genesis of the prosecution case is traceable to the First Information Report (FIR) which was registered on the basis of Daily Diary (DD) number 45A dated 11.09.2008 recorded at 2:40 a.m. on the basis of information received from PCR i.e. S-60, operator. As per this Daily Diary, Incharge E-92, Sub Inspector Prem Singh (PW-18), had informed through wireless set that "while going from Lala Lajpat Rai Marg towards Mool Chand there was accident and two were injured. IO be sent".
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2. On the receipt of said Daily Diary, Assistant Sub Inspector Satyabir Singh (PW-8) alongwith Constable Giri Raj (PW-10) reached at the spot i.e. opposite D Block, Defence Colony, Lala Lajpat Rai Marg where between pole number 426 and 428, he found one Bajaj Pulsar black colour motorcycle number DL 4S AW- 6977 (Ex. P-7) in accidental condition on the footpath. The rear chimta (rear swinging fork) was found bent and damaged. The rear tyre was coming out from the body. The speedo meter and guard were found broken. In the south direction of the mortorcycle between pole number 422 and 424 on the road, tyre skid marks were found which were leading towards Northern side Lajpat Nagar bus stand. Blood was lying between pole number 424 and 426 on the road and near the footpath. On the footpath, one wrist watch was also found lying there in working order but in broken condition.
3. At some distance from there on the footpath, one side indicator light was found in damaged condition on back of which BMW mark was printed. Near that on the footpath, one driving license of Anuj Aditya, some photographs, visiting cards, globus privilege card in damaged condition were found. From this place at a distance of about 400 metres in front of petrol pump Lala Lajpat Rai footpath, one BMW car number HR 26 AK-0020 platinum grey colour (Ex. P-6) was found parked in accidental condition. Front wind screen of the car was found damaged from the left side. Glass of window of left front door was also found broken. Pieces of glass were found scattered on the front seat. Left fender portion, left front light and left outer rear view mirror of the car were also found totally in damaged condition and broken pieces were found lying inside the car on front seat. On the base of left outer view mirror, one black coloured piece of hosiery cloth having blue stripes was found entangled. The number SC No. 1665/16 State v. Utsav Bhasin 2 plate of the car was found in broken condition. In the car under the seat next to the driver seat, one pair of sandle (high heal) ladies and one green Hawai Chappal (Flip-flops) having white flowers, were found lying. Both the air bags of the car were opened. The car was found locked due to computerised mechanism. No eye witness was found at the spot. Both the injured were taken to All India Medical Science (AIIMS) Trauma Centre by PCR van Eagle/92. Assistant Sub Inspector Satyabir Singh informed the duty officer on telephone and requisitioned more staff. Head Constable Vijay and Constable Naveen reached the spot. Both of them were deputed to take care of the accidental BMW car and motorcycle. For taking care of the spot Constable Giriraj (PW-10) was deputed. Assistant Sub Inspector Satyabir Singh reached the Trauma Centre where both the injured Anuj and Mrigank Srivastava were found admitted. The doctor had declared both of them unfit for statement. The Medical Legal Certificate (MLC) of both the injured were collected.
4. After that, investigation was entrusted to Sub-Inspector Sandeep Ghai (PW-37). He visited the scene of crime and inspected the damaged vehicles. He found the rear chimta of the motorcycle bent and broken. The rear tyre was coming out from the body due to damage in axle and silencer was bent towards front and speedo meter and its guard were found badly broken. The motorcycle was completely damaged from the right side. In the area between pole number 424 and 426, the blood was found on the road as well as on the footpath. One broken helmet was found lying on the footpath between pole number 424 and
426. The tyre skid marks started between pole no. 422 and 424 and extended upto bus stop Lajpat Nagar of the same road/direction.
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5. The District Crime Team South District carried out inspection of scene of crime as well as accidental vehicle. Team from Central Forensic Science Laboratory, Central Bureau of Investigation, Lodi Road also inspected the BMW car, the scene of crime and the road in view of skid marks.
6. The registered owner of the car was found as M/s. Golden Rolls Pvt. Ltd., GT Road, Bahalgarh, opposite SAI Complex, Sultan Pur Village, Sonepat, Haryana. In reply to notice under Section 133 Motor Vehicle Act, Shri Kush Anand (PW-33), one of the directors of the said company, gave in writing that accused Utsav Bhasin who is the son of director Narender Kumar Bhasin (PW-
32) was driving the car at the time of accident. Shri Shadi Lal (PW-20) retired foreman of the Delhi Transport Corporation mechanically inspected both the vehicles.
7. Injured Anuj Aditya died on 13.09.2008 at AIIMS, Trauma Centre and therefore Section 304A IPC was added on the same day. Injured Mrigank Srivastava (PW-1) remained unfit for statement till 14.09.2008.
8. Investigation of the case was transferred to District Investigation Unit, South District on 14.09.2008 and investigation was entrusted to PW-36 Inspector Awatar Singh Rawat (A.S.Rawat).
9. Statement of injured, Mrigank Srivastava, was recorded on 15.09.2008. He stated that on 11.09.2008 in the morning while he alongwith his friend Anuj Aditya was going towards Nizamuddin after watching movie at the PVR Saket, his motorcycle was hit by a speeding BMW car number HR 26 AK-0020 from the back as a result of which he fell down on the road alongwith his motorcycle whereas shirt of Anuj Aditya got entangled on the rear view mirror of the SC No. 1665/16 State v. Utsav Bhasin 4 offending vehicle and he was dragged upto a considerable distance without bothering that it could cause fatal injuries resulting in death. If the car driver had stopped the car, Anuj Aditya would have survived.
10. On the basis of statement of injured Mrigank Srivastava and other evidence on record, section 304 IPC was added. Injured Mrigank Srivastava sustained grievous hurt, therefore, section 338 IPC was also added.
11. During investigation, Institute of Road Traffic Education (IRTE), Non Government Organization (NGO) was requested for re construction of accident, collusion investigation and analysis. IRTE was having advance version Mobile Crash Lab for collision analysis. PW-5 Amandeep Singh Bedi (Head of IRTE) stated in his statement recorded under Section 161 of the code that estimated speed of BMW car was 70-75 km per hour and estimated speed of motorcycle before impact was 40-45 km per hour. He also gave finding of road environment. The IRTE team inspected the site on 14.10.2008 i.e. after more than one month of the accident.
12. After investigation, police report under section 173 of the Code of Criminal Procedure, 1973 (in short "Code") was filed against the accused Utsav Bhasin for the offences punishable under Sections 279, 338 & 304 IPC before the learned Metropolitan Magistrate. And after supplying copies to the accused, the case was committed to the Court of Session by the learned Metropolitan Magistrate vide order dated 17.04.2009 and same was received on assignment by my learned predecessor on 28.04.2009.
13. Charge was framed against the accused for the offences punishable SC No. 1665/16 State v. Utsav Bhasin 5 under section 279, 338 and 304 IPC vide order dated 22.05.2010.
14. The prosecution examined 38 witnesses, namely, Mrigank Srivastava (PW-1), Ombir Singh (PW-2), Dr. Amar Mukund (PW-3), Vijay Shah (PW-4), Dr. Akhilesh Raj Jhamad (PW-4A) (this witness has been numbered as PW-4 due to typographical mistake as Sh. Vijay Shah and Dr. Akhilesh Raj Jhamad both have been given prosecution witness number-4 i.e., PW-4), Amandeep Singh Bedi (PW-5), Naresh Kumar Malhotra (PW-6), Dr. B.K. Mohapatra (PW-7), Assistant Sub Inspector Satyavir Singh (PW-8), Constable Kishan Ram (PW-9), Head Constable Giriraj Prasad (PW-10), Sub Inspector Nafe Singh (PW-11), Head Constable Om Prakash (PW-12), Head Constable Ramesh Kumar (PW-
13), Constable Bijender Singh (PW-14), Om Bir Singh (PW-15), Head Constable Giriraj (PW-16), Sub Inspector Mahesh Kumar (PW-17), Retired Sub Inspector Prem Singh (PW-18), Sub Inspector Rati Ram (PW-19), Shaadi Lal (PW-20), Constable Vijender (PW-21), Harender Prasad (PW-22), Assistant Sub Inspector Deepak Pawar (PW-23), V.B. Ramteke (PW-24), Abhay H. Ganvir (PW-25), Deepak Kumar (PW-26), S.K. Chadha (PW-27), Vinu t. Abraham (PW-
28), Pawan Kumar (PW-29), Dr. Sanjeev Lalwani (PW-30), Deepak (PW-31), Narender Kumar Bhasin (PW-32), Kush Anand (PW-33), Dr. Shabbir (PW-34), Anil Mathai (PW-35), Inspector A.S. Rawat (PW-36) and Inspector Sandeep Ghai (PW-37) where after, the statement of the accused was recorded under section 313 of the Code on 18.05.2013. The accused examined no witness in his defence.
15. Shri Nischal Singh, learned Additional Public Prosecutor has submitted that thirty eight witnesses have been examined by the prosecution and most of them have fully supported the case of prosecution and, therefore, accused may SC No. 1665/16 State v. Utsav Bhasin 6 be convicted of the charges. The accused hit the scooterist from behind and therefore he was driving the car in rash and negligent manner, and in this regard, decision passed by Hon'ble Delhi High Court in Paras Nath v. State of Delhi, 2004 Cri.L.J. 731 has been referred.
16. On the other hand, Shri Ramesh Gupta, learned senior counsel appearing for the accused has submitted that accused is not denying the accident but accident was happened due to curvature of the road because of which driver of the bike could not control his bike and bike swayed towards car of accused and rammed into the car. The Bus Rapid Transport Corridor (BRTC) was also responsible for accident as same was faulty and due to fault same was scraped later on. The BRTC Project Report has been filed in support of argument.
17. Shri Ramesh Gupta has further submitted that after the incident FIR was registered under Section 279 and 337 IPC but after the recording statement of injured Mrigank Srivastava, Section 304 IPC was added during the investigation and hence, only due to the statement of Mrigank Srivastava Section 304 IPC was added but during the trial Mrigank Srivastava has not supported the case of prosecution and he was declared as hostile by the prosecution and the facts which were mentioned in his statement given to the police and due to which, the offence under Section 304 IPC was added have not been stated by the Mrigank Srivastava during the trial and further public witness Omvir Singh and Vijay Singh have also not supported the case of prosecution and they were also declared hostile by the prosecution and therefore, offence under Section 304 IPC has not been proved.
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18. Shri Ramesh Gupta has further submitted that in the present case, the investigating officer had approached to a NGO i.e. Centre for Analysis and Research in Road Safety, Institute of Road Traffic Education, Okhla, New Delhi with request of accident reconstruction and said institute has given his report. In respect of report of said institute, Shri Amandeep Singh Bedi, Head of the said Institute has been examined as PW-5 during the trial and during the cross examination, he has testified that as per inspection either the car and motorcycle were parallel and motorcycle swayed towards the car or there might be a possibility that car was ahead of bike. Said witness has also stated in said examination that if the car was coming from back it would have hit the bumper and further the stucking of silencer suggest that bike swayed towards the car due to curvilinear section of road. Referring this testimony, learned senior counsel has submitted that prosecution witness itself has proved that car did not hit the motorcycle from behind and it was the motorcycle which swayed towards the car due to which accident was happen and therefore, there is no negligence or rashness on the part of the accused in driving the car during the said accident. In this regard, learned senior counsel has also referred testimony of PW-2 Omvir Singh who has testified in his examination in chief that one BMW car passed his car from the left side in a normal speed.
19. Shri Ramesh Gupta has further submitted that there is not presumption of negligence and it is for the prosecution to prove the negligence or rashlessness of the accused when he was driving the vehicle which met with accident. High speed is no ground to presume/say that accused was driving the vehicle in rashness or negligence.
20. Shri Ramesh Gupta has further submitted that at the time of accident, SC No. 1665/16 State v. Utsav Bhasin 8 accused was not in drunken condition and he was examined in this regard. PW- 24 V.B. Ramtake has proved negative test for the presence of Ethyl Alcohol in the blood test report Ex. PW-24/A.
21. Shri Ramesh Gupta has placed reliance upon the decisions namely, Sujit Biswas v. State of Assam, 2013 (5) LRC 133 (SC) ; Syed Akbar v. State of Karnataka, (1980) 1SCC 30 ; State of Karnataka v. Satish (1998) 8 SCC 493 ; Mohammad Anynuddin @ Miyam v. State of Andhra Pradesh, (2000) 7 SCC 72 ; Harish Vohra @ Dr. Harish Bora v. State (NCT of Delhi), Crl. Rev. No. 12/2002; Jit Singh v. State of Punjab, 1976 SCC (Crl) 341; Nageshwar Shri Krishna Ghobe v. State of Maharashtra, 1973 SCC (Crl) 664; Mahadeo Hari Lokre v. The State of Maharashtra, AIR 1972 SC 221; Saunki Ram v. State (Govt. of NCT of Delhi), 2012 II AD (Delhi) 955 and Abdul Subhan v. State (NCT of Delhi), 133 (2006) DLT 562.
22. The case of the prosecution is that when on 11.09.2008 in the morning at about 2:20 a.m.- 2:30 a.m., Mrigank Srivastava alongwith his friend Anuj Aditya was going on motorcyle number DL 4S AW 6977 towards Nizamuddin after watching movie at the PVR Saket, his motorcycle was hit from the back by a speeding BMW car number HR 26 AK-0020 at Lala Lajpat Rai Marg, opposite B-Block, Defence Colony, New Delhi, as a result of which he fell down on the road alongwith his motorcycle whereas shirt of Anuj Aditya got entangled on the rear view mirror of the said offending vehicle and he was dragged upto a considerable distance without bothering that it could fatal injury resulting in death, and if the car driver had stopped the car, Anuj Aditya would have survived and thereby accused caused grievous hurt upon the person of the Mrigank Srivastav, and accused committed culpable homicide not amounting to SC No. 1665/16 State v. Utsav Bhasin 9 murder by causing death of Anuj Aditya.
23. The accused has admitted that he was driving the BMW car number HR 26 AK-0020 and the said car was involved in the accident which was happened between said car and motorcycle number DL 4S AW-6977 make Pulsar (black colour) at the spot i.e, Lala Lajpat Rai Marg, Opposite D-Block, Defence Colony, New Delhi at about 2:20 a.m. on 11.09.2008. These facts have been admitted by the accused in his statement under Section 313 of the Code and during the whole trial and final argument. Further, on 02.02.2013, statement of accused was recorded by my learned predecessor wherein accused did not dispute that said car was seized by the investigating officer vide seizure memo Ex. PW-8/G and car was involved in the accident and he was driving the same. He had not disputed that motorcycles number DL 4S AW- 6977 make Pulsar (black colour) was seized by the investigating officer vide seizure memo Ex.PW-8/B and said motorcycle was also involved in the present case. He further stated that he shall not dispute the identity of both the abovesaid vehicles during trial and at any stage.
24. Although the accused has admitted that he was driving the said BMW car on the day of accident on 11.09.2008 at the spot i.e. Lala Lajpat Rai Marg, Opposite D-Block, Defence Colony, New Delhi and accident was happened there between his said car and motorcycle, but the prosecution also has proved the said factum of accident by examining their witnesses. In this regard, PW-1 Mrigank Srivastav is a star witness and injured also. He testified that Anuj Aditya was his friend and his birthday used to be celebrated on 05 th September and generally, he used to see movies at Select City, Saket. On the intervening night of 10/11.09.2008, he alongwith his friend Anuj Aditya went to see movie SC No. 1665/16 State v. Utsav Bhasin 10 "Rock On" at Select City, Saket and it was night last show. He went on his Bajaj Pulsar 150 CC motorcycle number DL 4C AW-6977. The movie was over around 1:00 a.m. in the night. He alongwith his friend Anuj left for a room in south extension which Anuj took on rent. He was driving the motorcycle and Anuj was pillion rider. They were going by a Moolchand towards Nizamuddin to eat foot and they crossed Moolchand Flyover and entered into the BRTC at about 2:00 a.m. and he suddenly realized that there was a impact but he could not know as to what had happened but the bike was slipped. They also fell down and he became unconscious and could not know what had happened and he found himself in the hospital when he regained consciousness after two days.
25. In respect of accident, there is another witness Ombir Singh (PW-2) who has testified that he is a driver by profession and is doing a job as a driver in a company i.e., APACE Rent A Car, Private Limited at Delhi Travel and Tours, 18, Community Centre, East of Kailash, New Delhi for the last about six years. He used to pick up the employees of KMC Company from Ghaziabad, Shahdara, Seemapuri and drop them at Nehru Place and again used to pick them from Nehru Place and drop them at their respective places. On the intervening night of 10/11.09.2008, he lifted employees of abovesaid company from Nehru Place and dropped them at Vaishali and Shahdara about 01.00 a.m.. It was his shift duty from 03.00 p.m. to 12.00 Night. On that night while he was coming after dropping the employees at Vaishali and Shahdara and reached near Shahdara Flyover, one tyre of his vehicle got punctured. He changed the stepney. He was trying to search a puncture wala shop as he had to pick up the employees in the morning shift. At about 02.25/02.30 a.m., he was SC No. 1665/16 State v. Utsav Bhasin 11 passing on the Lala Lajpat Rai Marg under the flyover at Moolchand. In the meantime one BMW Car passed his car from his left side in a normal speed. He heard some noise. As he reached the spot he saw that two people were lying on the road in injured condition and one motorcycle was lying on patri near left pole. He saw one boy on road in injured condition and another boy who was heavier than the other boy lying in the injured condition at some distance. He did not stop there as he was scared that he may not get involved. He reached near the petrol pump and saw a BMW Car standing there and he left after seeing the said car. Thereafter, he took a U-Turn from the next flyover and again reached the spot to see the injured. But by that time, the injured were removed from the spot. He did not see the accident.
26. PW-4 Vijay Shah has not fully supported the case of prosecution but he had deposed that he was auto driver by profession and in the night of 10.09.2008, he was sleeping in his auto near petrol pump, Defence Colony, then about 02.00 a.m., he heard some noise and he woke up and saw some people talking to each other near his auto.
27. The Prosecution has also examined Dr. Sanjeev Lalwani (PW-30), Associate Professor, Department of Forensic Medicine and Toxicology, AIIMS, New Delhi, who alongwith Dr. Arvind Kumar, Senior Resident, conducted postmortem examination on dead body of Anuj Aditya who was brought with alleged history of road traffic accident in the intervening night on 10/11.09.2009 while he was on motorcycle hit by a BMW car, brought to Trauma Centre, AIIMS on 11.09.2008 at 02.40 a.m. and expired on 13.09.2008 at 06.00 a.m..
28. PW-34 Shri Kush Anand is the director of the company M/s Golden SC No. 1665/16 State v. Utsav Bhasin 12 Rolls Private Limited and the BMW car number HR 26 AK 0020 is registered in the name of said company. He proved that at the time of accident, accosed Utsav Bhasin was driving the said BMW car.
29. PW-8 Assistant Sub Inspector Satyavir Singh, PW-10 Head Costable Giriraj Prasad, PW-11 Sub Inspector Nafe Singh on 11.09.2008, reached at the spot where accident was happened and found the said BMW car and Motorcycle in accidental condition.
30. Hence from the admission of the accused regarding accident and testimony of PW-1, PW-2, PW-4, PW-8 and PW-34 as stated above, it has been proved that on 11.09.2008 at about 02.20/02.30 a.m. at Lala Lajpat Rai Marg, opposite D-Block, Defence Colony, accused was driving BMW car bearing registration number HR 26 AK-0020 and there was a accident happened there between the said car and motorcycle bearing registration number DL 4C AW- 6977 which was being driven by Mrigank Srivastava and Anuj Aditya was a pillion rider.
31. Now I have to consider the factum of death of Anuj Aditya and grievious injury to Mrigank Srivastava due to said accident. PW-18 Sub Inspector (retired) Prem Singh has deposed inter alia, that on 11.09.2008 he alongwith Constable Giriraj went to the spot. Two injured person were set to be removed to the AIIMS Trauma Centre by the PCR. He went to AIIMS Trauma Centre and found injured Anuj and Mrigank Srivastava under treatment. He requested the doctor for recording the statement of injured persons but the doctor declared them to be unfit for statement. He collected the MLCs for both the injured person.
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32. PW-34 Dr. Shabbir who was posted as Junior Resident in Emergency Medicine at J.P. Naryan, Apex Trauma Centre, AIIMS, on 11.09.2008 has stated that on 11.09.2008 at about 02.40 a.m., the injured Anuj Aditya was brought to the hospital by Sub Inspector Prem Singh (PW-18) and he examined him and found his condition as life threatening. His MLC has been marked as Ex.34/A.
33. PW-37 Inspector Sandeep Ghai testified, inter alia, that in the morning of 13.09.2008, the information regarding death of Anuj Aditya was received from the Trauma Center, AIIMS Hospital vide DD number 6B (Ex.PW-37/C). He visited the hospital and conducted the inquest proceedings. He moved an application for postmortem Ex.PW-37/E and got postmortem conducted. After the postmortem, the dead body was handed over to the father of the deceased.
34. PW-36 Inspector A.S.Rawat has testified that on 14.09.2008, he visited the Trauma Center, AIIMS Hospital where the rider/driver of the motorcycle, injured Mrigank Srivastava was hospitalized and other injured namely Anuj was already died in the hospital.
35. PW-30 Dr. Sanjiv Lalwani alongwith Dr. Arvind Kumar, Senior Resident conducted postmortem examination on dead body of Anuj Aditya. On postmortem examination, following injuries were observed:-
1. Face: Brownish red, partially healed scab tightly adherent, grazed abrasions of size 3X5 cms over area 2 cm above left eyebrow, of size 5X4 cms over right temple, of size 7X5 cms over right cheek, of size 3X2 cms over nose, of size 7X3 cms on left cheek, of size 5X2 cms on left angle of mouth and size 4X1 cms over right chin.
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2. Upper Limbs: Partially healed, grazed abrasions with tightly adherent scab of size 3X2 cms over front of right shoulder, of size 3X3 cms on right elbow, of size 4X3 cms on right forearm, of size 3X1 cms on dorsum of right wrist of size 3X3 cms over left elbow, of size 6X4 cms on left wrist and of size 1X.5 cms over each knuckle (proximal interphalangeal area of left hand).
3. Lower Limbs: Fracture and dislocation of right ankle joints with surrounding haemorrhage in soft issue about 200 ml. In the front of right ankle a contused abrasion 4X1 and 1X1 cm also present, contusion in an area of 28X9 cms over right popliteal fossa involving lower part of thigh and upper part of leg, grazed abrasion of size 4X2 cms partially healed below left patella.
4. Brownish red grazed abrasion of size 14X3 cms and 7X5 cms obliquely placed over lumbosacral region of back.
36. PW-30 further deposed that there was extra vasation of blood below scalp, 15X12 cms area over right parieto-temporal and occipital region. Occipital bone having linear fracture, bilateral condylar dislocation alongwith atlanto-occipital joint. Brain was showing sub-dural haematoma over occipital lobes and subarachnoid haemorrhage all over the brain, brain matter was oedematous. There was retroperitoneal haemorrhage over lumbosacral region. The blood sample in gauze piece was preserved and sealed. The cause of death in this case was coma due to anti-mortem head injury. All injuries were anti-mortem in nature, caused by blunt force and could be possible in above- mentioned circumstances of R.T.A."
37. PW-18 and PW-30 were not cross examined by learned defence SC No. 1665/16 State v. Utsav Bhasin 15 counsel. There is no cross examination of PW-34 on the MLC Ex.34/A. There is no cross examination of PW-36 on the deposition that Anuj Aditya was died. There is no cross examination of PW-37 on DD number 6B (Ex. PW-37/C). PW- 30 has proved that the cause of death of Anuj Aditya was coma due to anti- mortem head injury and all injuries were anti-mortem in nature, caused by blunt force and could be possible in above-mentioned circumstances of R.T.A.. Hence from the testimony of PW-18, PW-30, PW-34, PW-36, and PW-37 it has been proved that Anuj Aditya was died due to said accident on 13.09.2008.
38. In respect of his injury, injured Mrigank Srivastava (PW-1), has testified that on the intervening night of 10/11.09.2008, he along with his friend Anuj left for a room in South Extension on a motorcycle No. DL-4CAW 6977 after viewing the movie at Select City, Saket, at 1.00 a.m. They entered into corridor of BRT and at about 2.00 a.m. he suddenly realised that there was an impact and he could not know as to what had happened but the bike slipped and they also fell down and then he became unconscious and found himself in the hospital where he regained consciousness after two days. He has also stated in the cross- examination conducted by the learned Additional Public Prosecutor that he received injuries because of the accident.
39. PW-13 Head Costable Ramesh Kumar deposed that on 11.09.2008 (wrongly written as 14.09.2008) he reached at the spot of accident and he took the injured Mringank to Trauma Centre, AIIMS Hospital by his PCR number E- 96 and got him admitted vide MLC number 135908/08.
40. PW-34 Dr. Shabbir proved that injured Mrigank Srivastava was brought to the hospital at about 2.52 a.m. on 11.09.2008 by Head Constable Ramesh SC No. 1665/16 State v. Utsav Bhasin 16 Kumar and he medically examined the said injured and prepared the MLC Ex.PW-34/B. He has also proved that the said patient was found to have deformity with swelling of the right ankle and foot and had a lacerated wound measuring around 3 X 0.5 centimeter on the scalp along with abrasions on the scalp, left hand, left thumb and right leg. The said patient was referred to Radiology Department for X-Ray and CT Scan. The prosecution has also examined Dr. Aman Mukund (PW-3), Department of Radiology, Trauma Centre, AIIMS, who has proved that on 11.09.2008, X-Ray of Mrigank Srivastava was done which revealed fracture medial malleolus on the right side. PW-3 also proved X-Ray report having no. 10-22516 as Ex. PW3/A. PW-34 after receiving and perusing the X-Ray report of Mrigank Srivastava opined that the injuries to be grievous. The fracture or dislocation of a bone has been designated as grievous hurt under section 320 IPC.
41. There is no cross examination of PW-1 on the deposition that he received injuries because of accident. PW-3 and PW-13 have not been cross examined. There is no cross examination of PW-34 on the deposition of MLC of injured Mrigank Srivastava and nature of injury. Hence, from the testimonies of PW-1, PW-3, PW-13 and PW-34, it has been proved that Mrigank Srivastava got injured in the said accident and there was a fracture medial malleolus on the right side and said injury/hurt was grievous in nature.
42. PW-17 Sub-Inspector Mahesh Kumar has proved the scaled site plan as Ex. PW-17/A. PW-19 Sub-Inspector Rati Ram has proved the FIR Ex. PW- 19/A and DD no. 45 A dated 11.09.2008 as Ex. PW-19/C. PW-37 Inspector has proved the site plan of the place of accident as Ex.PW-37/A and site plan of the place where the said car was found stationed on the footpath after the accident SC No. 1665/16 State v. Utsav Bhasin 17 as Ex.PW-37/B. PW-36 Inspector A.S.Rawat has proved site plan Ex.PW-36/A which was prepared by him at the instance of the PW-13 and PW-18. He has also proved the site plan of the place of occurrence Ex.PW-36/B which was prepared by him at the instance of injured (PW-1). I have recorded these findings because there are no cross-examination of PW-11, PW-17 and PW-19. Insofar as cross-examination of PW-36 is concerned, he has stated that he has not observed any evidence at the spot. And further, there is no cross examination of PW-37 in respect of his deposition regarding site plans.
43. Now, I have to consider the evidence with regard to rashness or negligence on the part of the accused at the time of accident. First of all, I am giving reference to provisions of IPC i.e. Section 279, 338, IPC. Section 279 IPC is as under:
"279. 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''.
44. Section 338 IPC is as under:
"338. Causing grievous hurt by act endangering life or personal safety of others- Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal SC No. 1665/16 State v. Utsav Bhasin 18 safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both."
45. In Alister Anthony Pareira v. State of Maharashtra, Criminal Appeal Nos. 1318-1320 of 2007, Hon'ble Supreme Court observed in para numbers 35 and 36:
"35. In Empress of India v. Idu Beg, 1881 (3) All.776, Hon'ble Straight J., explained the meaning of criminal rashness and criminal negligence in the following words: Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
36. The above meaning of criminal rashness and negligence given by Hon,ble Straight J has been SC No. 1665/16 State v. Utsav Bhasin 19 adopted consistently by this court."
46. The Hon'ble Supreme Court in Mohammad Aynuddin v. State of Andhra Pradesh, (2000) 7 SCC 72 held that a rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.
47. PW1 Mrigank Srivastava is injured and eye-witness. PW2 Omvir Singh (taxi driver) and PW4 Vijay Singh (auto driver) are also eye-witnesses. But these three public witnesses have not fully supported the case of prosecution and they were cross examined by the Additional Public Prosecutor but nothing in favour of the State has come in the said cross examination. Injured Mrigank Srivastava has described the incident but nothing has been stated in respect of cause of incident.
48. PW-8 Assistant Sub Inspector Satbir Singh and PW-10 Constable Giriraj were the police officers who reached at the spot after the incident on receiving of DD number 45A (Ex.PW-19/C). PW-8 testified, interalia, that on 11.08.2008, he was posted at Police Station Lajpat Nagar and on receipt of said DD, he alongwith Constable Giriraj went to the spot i.e. opposite D Block, Defence Colony, Lala Lajpat Rai Marg. On the spot, he saw motorcycle number DL 4S AW 6977 Pulsar Black colour in accidental condition lying in between SC No. 1665/16 State v. Utsav Bhasin 20 pole number 426 and pole number 428 on the foot path. The rear chimta (swinging fork) of the motorcycle was found moulded and the rear tyre was out of the wheel and the speedometer with its guard were found broken. There were tyre skid marks seen towards the southern side of the motorcycle between pole number 424 and pole number 426 and some blood was also lying. One wrist watch make Maxima was found broken on the spot. One side indicator light was also lying in broken condition upon which the logo of BMW was engraved/printed. One driving license was also found near the foot path which was pertaining to Anuj Aditya S/o Rajender Singh alongwith some photographs and visiting cards.
49. PW-08 has further testified that at the distance of about 400 metres from the place where the above motorcycle was lying, at a petrol pump situated on the Lala Lajpat Rai Marg, one car number HR 26 AK 0020 make BMW platinum grey colour was found stationed in accidental condition. The front wind screen was found damaged from the left side of the said car. The window of the left front door of the car was broken and some broken pieces of glass were lying on the front seat. The left fender portion (side of the bonnet), left front light and left outer rear view mirror were also found damaged. One piece of cloth of blue colour having stripes and another piece of cloth having black colour hosiery type were found in the base of the left outer view mirror. The number plate of the car was found in broken condition. One pair of ladies high heel sandals and hawai chappals (flip flops) of green colour were also found under the front seat alongwith the driver seat. Both air bags of the driver seat and the seat next to driver seat were found opened. The car was found locked with computerized mechanism. The identity of the said BMW car and motorcycle was not disputed SC No. 1665/16 State v. Utsav Bhasin 21 by the learned defense counsel and the said car has been exhibited as Ex. P-6 and motorcycle as Ex. P-7.
50. PW-10 Head Constable Giriraj Prasad has corroborated the version of PW- 8 stating that on 11.09.2008 he alongwith PW-8 went to the spot and saw said motorcycle in accidental condition and there was skid marks of the tyre. There was one said BMW car also in accidental condition from some distance from the said motorcycle.
51. PW-11 Sub Inspector Nafe Singh deposed that on 11.09.2011, he was posted as Incharge of Crime Team, South District and on that day on receipt of information from the control room, he alongwith Assistant Sub Inspector Deepak, finger print expert, and Head Constable Giri Raj, photographer, reached on the spot where one one motorcycle number DL 4S AW-6799 was found in accidental condition and one BMW car number HR 26 AK-0020 was also found in accidental condition at the distance of half a kilometre from the motorcycle. The photographer had taken photographs of both the vehicles Ex. PW-11/1 to Ex. PW-11/11 and the spot.
52. The learned defence counsel did not choose to cross examine the PW-11 whereas, PW-8 and PW-10 were cross examined by him but their cross examination are limited to the witness Vijay kumar (PW-4) and there are no cross examination on the facts stated by them as mentioned in the previous para number 48, 49, 50 and 51. Hence, the facts including skid marks and lying of car at the distance of 400-500 metres as stated by them in para numbers 48, 49, 50 and 51 have been proved.
SC No. 1665/16 State v. Utsav Bhasin 22
53. PW-13 Head Constable Rajesh Kumar was posted in the PCR South Zone on 17.09.2008 and he was on duty on the PCR Van E-96 in the area of South Extension, Part-II. He testified that on 11.09.2008 (wrongly written as 14.09.2011) while he was on duty on the aforesaid PCR van and at about 2:35 a.m., he received a call from Eagle 92 and the control room regarding the accident at Lala Lajpat Rai Marg. On receiving the said information, he reached at the spot where he saw one person namely Mrigank is lying on the footpath in between Pole number 424 and 426 and there was lot of blood lying in the spot. One said motorcycle was lying in an accidental condition near the footpath at the distance of 25 metres from the pole number 428.
54. PW-18 retired Sub Inspector Prem Singh was posted as Incharge PCR Van Eagle-92, South Zone on 10.09.2008 from 8:00 p.m. to 8:00 a.m. during the intervening night of 10/11.09.2008. On said night at about 2:25 a.m., their position was D Block Picket, Defence Colony and at that time one person told him about the accident at the main road pursuant to which they reached at spot where Anuj in injured condition was lying in between pole number 424 and 426 towards the corner of the road on Lala Lajpat Rai Marg towards Mool Chand. He also saw his belongings and blood lying on the road. He also saw at the distance of about 5 metres, another injured Mrigank also lying. He also saw said motorcycle lying in the damaged condition near pole number 428 at the distance of 25 metres from injured Mrigank. He made a call at number 100 and E-96 and removed Anuj to the Trauma Centre where he was hospitalized.
55. PW-20 Shadi Lal, Retired Foreman, Delhi Transport Corporation conducted mechanical inspection of said motorcycle on 11.09.2008 at about 6:00 p.m. at the instruction of the investigating officer and has proved his detailed SC No. 1665/16 State v. Utsav Bhasin 23 mechanical inspection report Ex. PW-20/A. In respect of motorcycle, he has found the following facts in his said mechanical inspection report.
1. Headlight and HC cover broken.
2. Meter Assa Damage.
3. Front both shokers bend.
4. Steering handle bend.
5. Silencer bend and broken.
6. From right side chasis bend, leg guard bend, all control cable jam.
7. Rear both shokers broken.
8. Rear wheel bend & dislocated.
9. Rear wheel fork bend and broken.
10. Engine right side damage.
11. Right petrol tank bend.
12. Front break paddle bend, kick lever bend and jam, right passenger seat cover broken.
56. PW-20 Shadi Lal conducted the mechanical inspection of said BMW car also at the instruction of the investigating officer on 11.09.2008 at Police Station Lajpat Nagar. He has proved the mechanical inspection of the said BMW car as Ex. PW-20/B. He had mentioned the following facts/fresh damages in respect of said BMW car in his said inspection report.
1. Front left wind screen broken and crack.
2. Front left fenner damage.
3. Front left mudguard damage.
4. Front left wheel bend.
5. Front left bumper broken.
SC No. 1665/16 State v. Utsav Bhasin 24
6. Left head light and indicator light broken.
7. Front number plate broken, left bonnet bend, damaged.
8. Front left suspension bend.
9. Front right bumper dented at two spot.
10. Steering air bag O.K.
11. Water container for wiper c / out.
57. PW-20 Shadi Lal has mentioned in his abovesaid mechanical inspection reports that said motorcycle and BMW Car became not road worthy.
58. PW-26 Deepak Kumar Tawar, Scientific Officer, Grade-I (physics), Central Forensic Science Laboraty, Central Bureau of Investigation, New Delhi was posted as SSO-II, Physical Division, Central Forensic Science Laboratory, Lodhi Road on 11.09.2008 and on the said day as per instructions of the Senior officers he alongwith LA Vinu T. Abraham, the fingerprint expert Harindus Prasad and photographer Abhay H. Ganvir reached at the spot i.e. Lala Lajpat Rai Marg, Opposite D Block, Defence Colony where the Station House Officer met them. He inspected the said BMW car. The car was examined in respect of dent marks, damages and paint transfer during the collision with the motorcycle. After examining the car he alongwith the other expert proceeded to Police Station Lajpat Nagar where a said motorcycle was parked. The motorcycle was also examined and found that it was very badly damaged. All the details of the dents damages and paint transfer during the collision has been proved by him to be given in his report Ex. PW-26/A.
59. Following observations have been made in Ex. PW-26/A in respect of said BMW Car :-
SC No. 1665/16 State v. Utsav Bhasin
25
(i) The front left hand side rear view mirror was found to be broken and a
blue & white strips cloth piece with a black coloured hosiery cloth piece was found struck in it and the same were removed and handed over to the I.O for sending to the laboratory for further examination.
(ii) The left hand side indicator was found missing. (iii) There was large dent on left hand front side fender of the car above the left hand side front wheel. (iv) The left hand side front portion alongwith indicator on the bumper of the
car was badly broken and the bumper near the indicator was also totally broken.
(v) There was a big dent in the area between left hand side front wheel and the door.
(vi) There was a cut mark on left hand side front tyre and a crack on the damage alloy wheel.
(vii) The front wind-screen of the car having a dent with radial and circular cracks on left hand side.
(viii) The front left hand side door glass was totally shattered and glass pieces were found lying inside & outside the car.
60. Following observations have been made in respect of said motorcycle :-
(i) Both rear shockers were totally broken.
(ii) The rear tyre was totally dismantle.
(iii) The silencer of the motorcycle was bent about 180 degree and having
scratches mark.
(iv) The head light was totally broken.
(v) The rear chinta/jhulla was bent upwardly.
(vi) The rear sight shocker was found bent.
SC No. 1665/16 State v. Utsav Bhasin
26
(vii) The rear number registration plate of the motor cycle was bent upwardly
on the right side.
61. It has also been found mentioned in abovesaid report Ex. PW-26/A that the blackish paint of the motorcycle, transferred during the collision was found sticking on the dents of the car. On the basis of inspection of the dents/damages on the car and motorcycle and the microscopic examination of the paint transferred on the car from the motorcycle during the collision, it has been concluded in the said report that the car hit the bike from the rear right side.
62. PW-28 Vinu T. Abrahim, Scientific Assistant, Central Forensic Science Laboratory, Lodhi Road, New Delhi was posted as Lab Assistant, Physical Division, Lodhi Road in the year 2008. He has corroborated the version of the PW-26.
63. PW-35 Anil Mathai is service manager, Deutsche Motorin Private Limited. He testified that the BMW cars do have the in crash senses in front and rear and depending upon the magnitude of the impact, the balloon comes out/opens automatically and it comes down/deflates within second. In cross examination, he stated that there are approximately seven balloons in the five series BMW car and he had personally seen the car involved in the present case when later on car was entrusted to their company by the owner for repair. The suggestions given by the learned defence counsel that both front air bags of the car were opened and out of these two front screen balloon, one balloon is on the passenger side and one on the driver side, were accepted as true.
64. From the testimony of PW-35, it has been proved that there were in SC No. 1665/16 State v. Utsav Bhasin 27 crash senses in front and rear only; that the balloons open depending upon magnitude of the impact only; that there were seven balloons in car of accused and out of these balloons, both two front air bags/front screen balloons were opened/deflated; that car was of five series.
65. There are no cross-examination of PW-13, PW-18, PW-20 and PW-28. There is no cross examination of PW-26 in respect of his report Ex. PW26/A and his testimony as mentioned above. Hence, from the above mentioned testimony of PW-8, PW-10, PW-11, PW-13, PW-18, PW-20, PW-26, PW-28 and PW-35 following facts also have been proved:
(i) The motorcycle in accidental condition was lying in between pole number 426 and 428 on the footpath.
(ii) The tyre skid marks towards the southern side of the motorcycle between pole number 424 and pole number 426.
(iii) At a distance of about 400-500 meters from the place where the motorcycle was lying, car was found stationed in accidental condition.
(iv) there were in crash senses in front and rear of the car only and there were seven balloons in the car and out of these balloons, both two front air bags/front screen balloons were opened.
(iv) In respect of car, following damages have been proved:-
(a) The front windscreen was found damaged from the left side of the car.
(b) The window of the left front door of the car was broken and some broken pieces of glass were lying on the front seat.
(c) Left fender portion (side of the bonnet), left front light and left outer rear view mirror were also found damaged.
(d) One piece of cloth of blue colour having stripes and another piece of cloth SC No. 1665/16 State v. Utsav Bhasin 28 having black colour hosiery type were found in the base of the left outer view rear.
(e) Number plate of the car was found in broken condition.
(f) There was large dent on left hand front side fender of the car above the left hand side front wheel.
(g) The left hand side front portion alongwith indicator on the bumper of the car was badly broken and the bumper near the indicator was also totally broken.
(h) There was a big dent in the area between left hand side front wheel and the door of the car
(i) There was a cut mark on left hand side front tyre and a crack on the damage alloy wheel.
(j) The front wind-screen of the car having a dent with radial and circular cracks on left hand side.
(k) The front left hand side door glass of the car was totally shattered and glass pieces were found lying inside & outside the car.
(l) both air bags of the driver seat and seat next to driver seat were found opened.
(m) car was found locked with computerized mechanism.
(v) In respect of motorcycle, following damages have been proved:-
(a) Both rear shockers were totally broken.
(b) The rear tyre was totally dismantle.
(c) The silencer of the motorcycle was bent about 180 degree and having scratches mark.
(d) The head light was totally broken.
(e) The rear chimta/jhulla was bent upwardly.
(f) The rear right shocker was found bent.
SC No. 1665/16 State v. Utsav Bhasin 29
(g) The rear number registration plate of the motor cycle was bent upwardly on the right side.
66. The stand/defence of the accused is that the accident happened due to the curvature of the road because of which the driver of the bike could not control his bike and swayed towards his car and rammed into his car and therefore, the accident was only happened as the biker was unable to control his bike. Further stand of the accused is that BRT Corridor was also responsible for accident as same was faulty and due to which same was scraped later on.
67. PW-5 Amandeep Singh Bedi who is head, Center for Analysis and Research in Road Safety, Institute of Road Traffic Education, Okhla Industrial Area, Phase-I, New Delhi, testified that on 08.10.2008, a letter was received in their institute from Police Station Lajpat Nagar regarding accident reconstruction and in pursuant to the request, on 14.10.2008, the spot of the incident was visited jointly IRTE Team led by him comprising Inspector Rawat and Shri Manoj. All the necessary available evidences and measurements were taken from the scene of occurrence and both the said vehicles involved in the accident. He prepared the sketch of the road i.e. simulation of accident in 2D and 3D were carried out. After the inspection and analysis of scene of the occurrence and the evidences whatever got provided for them, they concluded their findings that the estimated speed of the car before impact was 70-75 kilometre per hour. The estimated speed of the motorcycle before the impact was 40-45 kilometre per hour.
68. He further testified that causes are direct and catalytic causes. Direct causes includes the speed and negligence. Catalytic causes include:-
SC No. 1665/16 State v. Utsav Bhasin 30 Road Environment: The general purpose lane which is eight metre wide has a curvilinear path. Our team observed the movement of two wheelers in the night time. It was observed that most of the two wheelers maneuvering the curvilinear section tends to move in the middle lane thereby increasing the probability of hitting with the traffic moved in the extreme right lane (fastest lane). This is presumably what could have happen in this case also. His detailed report including the photocopy of the photographs, diagrams and finding running into eleven pages is Ex. PW5/A.
69. Hence, as per the findings of PW-5 the estimated speed of the car before impact was 70-75 kilometre per hour and the estimated speed of the motorcycle before the impact was 40-45 kilometre per. In the cross examination, this witness has accepted that some variation of the speed cannot be ruled out. The learned counsel for the accused had not put the question to the witness that estimated speed of the car before impact was very much less than 70-75 kilometre per hour and the speed of motorcycle was much more than 40-45 kilometre per hour. In his statement under Section 313 of the Code, accused has stated that the speed of his car was about 50/60 kilometre per hour. It means accused himself is stating that the speed of his car might be upto 60 kilometre per hour at the time of accident. PW-5 has mentioned estimated speed of the car before impact was 70-75 km per hour in his report Ex.PW5/A and in his testimony also. From the damages of the car and motorcycle, it can be safely held that car was driving at very high speed because the such type of damages would not have been happened if car had not been drived very high speed. Hence, In this regard, testimony of hostile witness PW-2 regarding normal speed of the car can not be relied upon. Hence, the speed of the SC No. 1665/16 State v. Utsav Bhasin 31 motorcycle before impact on the day of incident has been proved 40-45 km per hour and speed of the car atleast 70-75 km per hour.
70. In the light of damages of the car and motorcycle, speed of the car and motorcycle, deposition of Deepak Kumar (PW-26) who is the Scientific Officer of CFSL, CBI, and skid marks etc. as noticed by the police officer who reached at the spot immediately after accident, I am of the firm view that deposition of PW- 5 and his finding mentioned in the report Ex. PW-5/A and argument of learned defence counsel in line of PW-5 to the effect that either the car and motorcycle were parallel and motorcycle swayed towards the car or there might be a possibility that car was ahead of bike are improbable and unacceptable. This witness (PW-5) himself has stated that speed of car was 70-75 kilometre per hour and speed of motorcycle 40-45 kilometre per hour. Is it possible that car which was being driven at about double speed of motorcycle, would have been parallel to the motorcycle and motorcycle was swayed towards car. Keeping in view the speed of both the vehicles and other proved facts as discussed above, my answer would be 'No'. Similarly, it is also not possible that at the time of accident car was ahead of the motorcycle. If it is accepted that car and motorcycle were parallel, or car was ahead of motorcycle, then front number plate of the car would not have been broken; the window of the left front door of the car would not have been broken; the left fender portion would not have been damaged; cut mark on the left hand side front tyre and a crack on the damage allow wheel would not have been happened; both front air bags of the car would not have been opened. Similarly further, if it is accepted that car was ahead of motorcycle or the car and motorcycle were parallel and motorcycle swayed towards the car then silencer of the motorcycle could not have been bent about SC No. 1665/16 State v. Utsav Bhasin 32 180 degree; the rear chimta of motorcycle would not have been bent upwardly; the rear shocker of motorcycle would not have been bent; the rear number registration plate of motorcycle would not have been bent upwardly. The report Ex.PW-5/A shows that only four damages of the car i.e. front left fender dent and broken from left, front headlight left side broken glass, dent on the front passenger's door and rear from left side and scratch on the left side tyre have been taken into consideration. Similarly, only three damages of the motorcycle i.e. right side body scratch and dent, head lamp cover scratch from right side and folded silencer from centre have been taken into consideration. Whereas PW-26 had taken into consideration in his report Ex.PW-26/A eight damages of car and seven damages of motorcycle. Further, PW-26 inspected the spot on the same day of incident itself whereas PW-5 visited the spot after about thirty three days of the incident. PW-26 has clearly deposed and has mentioned in his report Ex.PW-26/A that the car hit the bike from the rear right side. And this finding has been given by him on the basis of inspection of the dents/damages on the car and motorcycle which was carried out by him on the same day of incident and the microscopic examination of the paint transferred on the car from the motorcycle during the collision. There is no cross examination on this finding of PW-26.
71. PW-35 Anil Mathai has proved that BMW cars do have the in crash senses in front and rear and depending upon the magnitude of the impact, the balloon opens and there were seven balloons in the five series BMW cars. Hence BMW car of accused was having the in crash senses in front and rear only, meaning thereby, air bags/balloons could be opened when car hit or car was hit from from rear or/and front. As car of accused was having the in crash SC No. 1665/16 State v. Utsav Bhasin 33 senses in front and rear only, it was not possible for the balloons to be opened if accident could have have been happened due to swaying of motorcycle like Bajaj Pulser towards car. Further, the theory that the car hit the motorcycle from behind/rear right side also strengthen from the facts that side balloons of the car had not been opened and both front balloons were opened.
72. From the damages of the car and the motorcycle, it can be safely concluded that speed of car was high/excessive at the time of accident and car hit the motorcycle from behind/rear right side. The damages to the car and the motorcycle establish that car hit the motorcycle from behind. It is not pleaded on behalf of the accused that the car after the accident with the motorcycle also rammed further with the roadside pole or wall etc. If accident had been happened due to swaying the motorcycle towards the car then such type of damages would not have been caused to the car and motorcycle. In reaching to this conclusion, I have taken into consideration the fact that car which was being driving by the accused was not a ordinary car but same was a BMW, a powerful machine. And if, such type of powerful machine had been so badly damaged in the accident, then it can be easily understand that what deadly accident could have been happened.
73. Further, The motorcycle in accidental condition was lying in between pole number 426 and 428 on the footpath and tyre skid marks towards the southern side of the motorcycle between pole number 424 and 426. Further, the car was found stationed in accidental condition at a distance of about 400-500 metres from the place where the motorcycle was lying. These facts show the tyre skid marks towards the southern side of the motorcycle in between pole number 424 SC No. 1665/16 State v. Utsav Bhasin 34 and 426, motorcycle lying in accidental condition between 426 and 428 on the footpath and car stationed in accidental condition at a distance of about 400
-500 metres from the place of lying the motorcycle. Hence, tyre skid marks of the car were found much prior of lying the motorcycle in accidental condition. The fact that the car was found stationed in accidental condition at a distance of about 400-500 metres from the place of lying the motorcycle also proves the high/excessive speed of the car, due to which, the car could not be stopped between pole number 424 and 426 where tyre skid marks of the car was found or between pole number 426 and 428 where motorcycle was found lying. The factum of high and reckless speed was evident from the skid marks of the car. Hence, the car was driving at high/excessive speed and due to such high/excessive speed, the accuse had lost control of the speeding car and hit the motorcycle from behind/rear right side and, consequently, death of Anuj Aditya and grievous hurt to Mrigank Srivastava. In Paras Nath's case (supra), Hon'ble High Court had held that if offending vehicle hit the scooterist from behind and defence of offender was not that scooterist had applied brake all of a sudden and therefore offender was taken unaware which led the offender's vehicle hitting the scooter from behind, and then act of negligence can be clearly attributed. In the present case also, car was driving at high speed/excessive speed (70-75 kilometre per hour) and car hit the motorcycle from behind/rear right side and therefore, act of negligence can be clearly attributed.
74. In Satish's case (supra) relied upon by learned defence counsel appearing for the accused, it was observed that merely because the vehicle was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself and high speed is a relative term and none of the witnesses SC No. 1665/16 State v. Utsav Bhasin 35 examined by the prosecution could give any indication, even approximately, as to what they meant "high speed". Firstly, this authority is not applicable to the present facts and circumstances of the case because in the present case, it has been proved that vehicle was being driven by the accused at a speed 70-75 kilometre per hour. Secondly, in Alistar Anthony Pareira's case (supra) and Sanjeev Nanda's case (supra), high speed alongwith other factors was considered to be presumption of having knowledge of the result for holding the accused guilty for the offence of culpable homicide not amounting to murder. Therefore, high speed can be taken into consideration particularly where high speed has been specified/quantified.
75. Insofar as the submission of learned defence counsel regarding happening of present accident due to faulty BRTC is concerned, same can not be accepted because it has been proved that present accident had been happened due to high/excessive speed of the car and hitting of the motorcycle by the car from behind/rear right side. In my view, there is another fallacy in that argument. Assuming that there was faulty BRTC, it was a duty of the accused that he should have been more cautious and driving the vehicle carefully in a lesser speed so that there would not have accident. This never happened since the accused drove the car in high speed/excessive speed and hit the motorcycle from behind/rear right side and caused death of pillion rider and grievous hurt to driver. It is also pertinent to mention here that Delhi/ BRTC was not unknown to accused as he is resident of Delhi and further he had gone abroad several times as reflected from the order sheets of this case and therefore, he might have gone abroad prior to accident also and therefore he had experience of strict traffic laws/rules and traffic sense of that country and therefore he was expected SC No. 1665/16 State v. Utsav Bhasin 36 to drive the vehicle with reasonable care and without rash or negligent manner.
76. In Syad Akbar's case (supra) relied upon by learned senior counsel appearing for the accused, it was observed in para number 19 that as a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not an evidence of negligence, but the peculiar circumstances constituting the evidence for the accident in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is two such cases that the maxim res ipsa loquitur may apply, if the cause of accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In such cases, the event or accident must be of kind which does not happen in the ordinary course of things if those who have the management and control use due care and the event which caused the accident was within the defendant's control. Instances of such special kind of accidents which " tell their own story" of being off-springs of negligence, are furnished by cases, such as where a motor vehicle mounts or projects over a pavement and hurts somebody there or travelling in the vehicle; one car ramming another from behind, or even a head on-collision on the wrong side of the road. Hence, in this authority, it has been observed that if one car rammed another from behind is instance of such special kind of accidents which "tell their own story" of being off-springs of negligence.
77. Accused has caused the said accident but he is fled away from the spot and he had never extended any helping hands to the victim lying on the road and fled from the scene. Section 134 of Motor Vehicle Act, 1988 casts a duty on a driver to take reasonable steps to secure medical attention for the injured SC No. 1665/16 State v. Utsav Bhasin 37 person unless it is not practicable to do so on account of mob fury or any other reason beyond his control. Section 187 of the said act provides for punishment for failing to comply the provision of Section 134. But no proceedings under Section 187 has been instituted against the accused in the present case, however, one person was died and one person was seriously injured in the present case.
78. Hence, from the oral and documentary testimony as discussed above, it has been proved that accused was driving said BMW car in negligent manner.
79. The crucial question now remains to be seen is whether prosecution evidence establishes beyond reasonable doubt the commission of offence of culpable homicide not amounting to murder of Anuj Aditiya under Section 304 IPC.
80. Culpable homicide has been defined in Section 299 IPC which says that whoever causes death by doing an act with the intention of causing death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. The punishment for culpable homicide not amounting murder has been prescribed in Section 304 IPC. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. The cases which fall within the last clause of Section 299 but not within clause "Fourthly" of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC.
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81. In Alister Anothony Pareira's case (supra), Hon'ble supreme Court has observed in para number 40 that rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. In para number 41, it was observed that a person responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequences and may be fastened with culpabality of homicide not amounting to murder and punishable under Section 304 Part II IPC. In para number 45, it was observed that in a case where negligence or rashness is the cause of death and nothing more, Section 304A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II IPC may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrong doer to cause death, offence may be punishable under Section 302 IPC.
82. In State Tr.P.S. Lodhi Colony New Delhi v. Sanjeev Nanda, Criminal Appeal No. 1168 of 2012, Hon'ble Supreme Court observed in para number 52 that the principle mentioned by this court in Alister Anothony Pareira (supra) indicates that the person must be presumed to have had the knowledge that, his act of driving the vehicle without a license in a high speed after consuming liquor beyond the permissible limit, is likely or sufficient in the ordinary course of nature to cause death of the pedestrians on the road.
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83. In the present case, on 11.09.2008, FIR was registered for offences under Section 279/337 IPC. When Anuj Aditiya was died on 13.09.2008 at AIIMS Trauma Centre, Section 304A IPC was added on 13.09.2008. On 15.09.2008, Inspector A.S. Rawat recorded the statement of injured Mirigank Srivastava wherein he stated that in the morning of 11.09.2008, while he alongwith his friend Anuj Aditiya was going towards Nizamuddin after seeing movie at PVR Saket, his motorcycle was hit by a speeding BMW car from the back as a result of which he failed on the road alongwith his motorcycle whereas shirt of Anuj Aditiya got entangled on the rear view mirror of the offending vehicle and dragged up to a considerable distance without bothering that it could caused fatal injuries resulting in death, and if the car driver had stopped the car, Anuj Aditiya would have survived. Based upon the said statement of Mrigang Srivastava, Section 304 IPC was added in place of 304A IPC. After investigation, charge sheet was filed for offence punishable under Section 279, 338 and 304 IPC against the accused with the conclusion, inter alia, that post accident act of accused was done with sufficient knowledge of causing death of victim Anuj Aditiya. But during the examination of said injured Mrigang Srivastava as PW-1 during trial, he has not fully supported the case of prosecution and he was declared as hostile. He has only stated in his examination in chief that on the intervening night of 10/11.09.2008, he alongwith his friend Anuj Aditiya was returning on Bajaj Pulsar 150 CC motorcycle bearing no. DL-4C AW-6977 after seeing the movie "ROCK ON" at Select City, Saket for room in South Extension, which Anuj took on rent and they were going via Mool Chad towards Nizamuddin to eat food and then when they crossed Mool Chand Flyover and entered into the corridor of BRT, and at around 02.00 a.m., he suddenly realized that there was a impact and he could not know as to what had SC No. 1665/16 State v. Utsav Bhasin 40 happened but bike slipped and they also fell down and he became unconscious and he regained consciousness after two days at hospital. He has not testified that during said accident, shirt of Anuj Aditiya got entangled on the rear view mirror of the offending vehicle and dragged up to a considerable distance without bothering that it could cause fatal injuries resulting in death, and if the car driver had stopped the car, Anuj Aditiya would have survived.
84. It is true that it has come in testimony of PW-8, that one piece of cloth of blue colour having stripes and another piece of cloth having black colour were found in the base of the left outer view mirror of car; that it has come in testimony of PW-37 that two small pieces of clothes entangled into the left rear view mirror recovered from the said car was also sealed and taken into possession; that it has come in testimony of PW-26 (Senior Scientific Officer, CFSL) that torn cloth pieces mark Ex.B-7(a) and Ex.B-7(b) are the part of shirt and banian mark Ex.C-1(a) and Ex.C-1(c) respectively. Hence, it has been proved that shirt of Anuj Aditya was got entangled on the rear view mirror of car. But it has not been proved that Anuj Aditiya was dragged up to a considerable distance without bothering by accused that it could cause fatal injuries resulting in death, and if the car driver had stopped the car, Anuj Aditiya would have survived. There is nowhere case of prosecution that at the time of accident, accused was in drunken condition. In this regard, PW-24 V. B. Ramteke has proved his report as EX.PW-24/A which gave negative test for the presence of ethyl alcohol in respect of accused. At the time of accident, accused was having driving license (EX.PW-29/A) as has been proved by official witness from Janak Puri Transport Authority namely, Pawan Kumar (PW-
29). Hence, I am of the view that prosecution has failed to prove that accused SC No. 1665/16 State v. Utsav Bhasin 41 had either intention to cause death or had the knowledge that his act may result in death. Therefore, it has not been proved beyond reasonable doubt that accident was caused by the accused with the knowledge of the dangerous character as required for the offence of culpable homicide not amounting to murder. But it has been proved that death of Anuj Aditya was caused by the accused by doing negligent act i.e. by driving the BMW car in negligent manner.
It is the law of land which has also been contended by the learned defence counsel that prosecution has to prove the case beyond reasonable doubt and if two opposite views are possible, then the view which is favourable to the accused must be taken. In Chaman & Another. v. State of Uttrakhand, Criminal Appeal No. 365 of 2013 decided on 19.04.2016, Hon'ble Supreme Court has observed in para number 31 that proof beyond reasonable doubt as has been held in a plethora of decisions of this Court, is only a guideline and not a fetish and that someone, who is guilty, cannot get away with impunity only because truth may suffer some infirmity when projected through human processes as has been observed in Inder Singh and another vs. The State (Delhi Administration) (1978) 4 SCC 161. It was further observed that a caveat against exaggerated devotion to the rule of benefit of doubt to nurture fanciful doubts or lingering suspicion so as to destroy social defence has been sounded by this Court in Gurbachan Singh vs. Satpal Singh and others (1990) 1 SCC 445. It has also been observed that it has been propounded that reasonable doubt is simply that degree of doubt which would permit a reasonable and a just man to come to a conclusion and it has been underlined therein that reasonableness of doubt must be commensurate to the nature of the offence to be investigated.
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85. Judged by the above touchstone of reasonableness of doubt in evaluating the facts and circumstances of the present case, I am clear in my mind that the complicity of the accused in the offences punishable under Section 279,338 and 304 A IPC has been convincingly proved as required in law. Hence, I am of the considered view that prosecution has proved beyond reasonable doubt that on 11.09.2008 at about 2:20 a.m. at Lala Lajpat Rai Marg, opposite D-Block, Defence Colony, accused Utsav Bhasin was found driving BMW car number HR 26 AK-0020 in negligent manner as to endanger human life and caused death of Anuj Aditya and grievous hurt to Mrigank Srivastava. Hence, I hold guilty accused Utsav Bhasin for the offences punishable under Section 279, 338 and 304A IPC and I convict him accordingly for offences punishable under section 279, 338 and 304A IPC.
Announced in the open court on 05.05.2017.
(Sanjeev Kumar)
Additional Session Judge-05,
South East,Saket Courts
New Delhi
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