Delhi District Court
In Re: State vs Gianender Singh on 10 May, 2011
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE:
DELHI
In Re: STATE VERSUS GIANENDER SINGH
F.I.R. No: 143/96
U/s 279/337/304 A IPC
P.S.Lodhi Colony
Date of Institution of Case : 23.08.1996
Judgment Reserved for : 10.05.2011
Date of Judgment : 10.05.2011
JUDGMENT:
(a) The serial no. of the case : 02403R0272282003
(b) The date of commission of offence : 13.04.1996
(c) The name of complainant : HC Domic Anand
(d) The name, parentage, of accused : Shri Gainender S/o Sh. Lakhi
Ram, r/o Gaon Pali, PS
Surajpur, District Gaziabad
(U.P.)
Presently: Jhoparpati, Noida,
Sector 17, behind DTC Depot,
Shiv Mandir.
FIR No. 143/96 1/32
Present Address : As above
(e) The offence complained of : U/s 279/337/304 A IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Convicted u/s 279/304A
(h) The date of such order : 10.05.2011
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 13.04.1996 at about 10.05 am at Arvindo Marg, near Air Port police picket within the jurisdiction of police station Lodhi Colony, accused Gainender Singh was found driving a bus bearing no. DLIP3926, Route no.502 in a rash and negligent manner thereby endangering human life and safety of others and while driving so, he struck against a two wheeler scooter no. DL3SH8652 which resulted in the death of scooter rider Shiv Prasad and simple injuries upon Smt. Manju who was a pillion rider on the scooter and thus thereby the accused committed offence punishable u/s 279/337/304A IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide order dated FIR No. 143/96 2/32 28.10.1996, notice u/s 279/337/304A IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution so far examined sixteen witnesses. Thereafter, the accused was examined u/s 313 Cr.P.C. He claimed himself innocence but did not offer to lead any evidence in his defence.
4. Before proceeding further with the appreciation of the evidence and the findings it will be worth while to highlight that the accused was convicted by the Ld. Predecessor of this court vide order/judgment dated 06.03.2007. The said judgment was challenged before the Hon'ble Sessions Court however, the appeal was not disposed off on merits instead the Ld. ASJ Sh. Vinod Kumar allowed the request of cross examination of PW8 ASI Domnic and the matter was remanded back in terms of order dated 22.10.2007.
5. ASI Domnic was recalled for crossexamination by my Ld. Predecessor and he was crossexamined and discharged on 31.01.2011. Thereafter, the matter was renotified for final arguments on 14.03.2011 by FIR No. 143/96 3/32 my Ld. Predecessor.
A brief scrutiny of the evidence recorded in the matter is as under.
6. PW 1 Retired SI Amar Singh deposed that on 13.04.1996 he mechanically inspected a two wheeler scooter no. DL3SH8652 and bus bearing no. DL1P3926 on the request of IO/ASI Mohd. Israel and gave his detailed report in this regard as Ex.PW1/A & Ex. PW1/B respectively.
7. PW 2 Ct. Ramesh Kumar deposed that on 13.04.1996 while he was posed at PS Lodhi Colony he received an information vide DD no.4A and accordingly he went to the place of accident along with IO/ SI Mohd. Insrile where he found one scooter no. DL3SH8652 and a blue line bus no. DL1PA3926 in accidental condition. He further deposed that on receiving information at the spot IO went to Safdargunj hospital leaving him on the spot for keeping watch. He further deposed that IO came back to the spot and gave rukka to him for registration of the case. On receipt of rukka he got registered the case and came back to the spot and handed over the copy of FIR and rukka to the IO. He further deposed that IO seized the offending bus and the scooter vide memo as Ex. PW2/A & Ex. FIR No. 143/96 4/32 PW2/B respectively. He further deposed that the IO recorded the statement of HC Domnic Anand who also reached the spot when IO came back from the hospital to the spot. He further deposed that the site plan was prepared and vehicle was taken to the PS where the mechanical inspection was conducted. He deposed that on the same day when they came to PS the owner of the offending bus also reached the PS where he was given a notice U/s 133 MV Act as Mark A and bus was released on Superdari.
During his crossexamination he stated that the call was received at about 10.00 am. He stated that he had mentioned this fact in his statement given to the police. He further stated that he had stayed at the spot for about three hours. He further stated that except HC Domnic, no other witness was available at the spot. He further stated that no other witness was examined in his presence except HC Domnic. He denied the suggestion that he was deposing falsely.
8. PW 3 Satender Kumar deposed that he was the registered owner of bus bearing no. DL1PA3926. He deposed that he does not remember the exact date, however, it was about three years back when he came to know FIR No. 143/96 5/32 through police that his bus had met with an accident. He deposed that there are three drivers working on the bus under him. He further deposed that he cannot say now as to who was driving the bus at the time of accident. He deposed that he did not produce any driver to the police. He further deposed that he received note u/s 133 MV Act and he identified his signatures on the notice as Mark A and he deposed that he did not produce the accused Gainender Singh as the driver of the said bus (objected to). He further deposed that he got the bus released on Superdari.
During the crossexamination by Ld. APP, he denied the suggestion that on the day of accident there was only one driver i.e. the accused and remaining were the helpers on the bus. He also denied the suggestion that he put his signatures on Mark X after reading its contents. He vol. stated that he had signed the paper where the police wanted him to sign. He stated that the police did not misbehave with him.
During his cross examination by Ld. Defence Counsel he stated that the police did not ask him to produce any record of duty of the accused for the relevant date, nor the record was summoned from him. He admitted FIR No. 143/96 6/32 that no writing work was done by the police in his presence but only he was verbally examined. He admitted that Mark A was got signed from him by the police at point Y on 13.04.1999. He stated that Mark X was got signed from him by the police on 05.05.1996 but he had not gone through the contents of the writings.
9. PW4 HC Jai Prakash deposed that on 07.05.1996 he was posted at PS Lodhi Colony and on that day he along with SI Dharam Pal had gone to RML hospital for getting the postmortem done on the deadbody of deceased Shiv Prasad. He further stated that SI had first got the dead body identified from the son of the deceased. He further stated that body was taken from RML hospital to AIIMS hospital and after the postmortem the deadbody was handed over to the legal heirs of the deceased.
10. PW 5 Ms. Manju deposed that on 13.04.1996 she along with her husband Shiv Prasad was going to Barat Ghar, S. Nagar to attend a marriage on two wheeler scooter bearing no. 8652 which was being driven by her husband. She further deposed that at about 10.00 am when they reached SJ Road, Arvindo Marg near Airport bus stop, one blue line bus came from back at a very high speed and hit their scooter from back as a FIR No. 143/96 7/32 result of which she and her husband fall down from scooter. She further deposed that she became unconscious and both of them were taken to SJ hospital by the police. She further deposed that accident was happened due to fast speed and negligent driving by the driver of the bus as they are going in their lane. She further deposed that her husband remained unconscious after accident and had sustained serious injuries on his head th and back and he died in the hospital on 6 May, 1996. She further deposed that she did not see the driver of the bus. Police recorded her statement.
During cross examination by Ld. APP for the State she stated that she cannot say whether the accused was the same person who was driving the bus at the time accident. She vol. stated that she did not see the driver at that time. She denied the suggestion that she was not identifying the accused in order to save him. She further stated that she might have told the number of bus as DL1P3946 of route no. 502 to the police. She further stated that she does not remember that exactly due to lapse of time.
11. PW6 Sh. Nishit deposed that on 07.05.1996 he identified the dead FIR No. 143/96 8/32 body of his father in RLM hospital who died in a RTA on 13.04.1996. He further deposed that his statement was recorded as Ex. PW6/A.
12. PW7 Ct. Devender Kumar deposed that on 05.05.1996 he was posted at PS Lodhi Colony. He deposed that IO arrested the accused (correctly identified) in his presence vide memo as Ex. PW7/A.
13. PW8 ASI Domnic Anand deposed that on 13.04.1996 he was posted at PS Lodhi Colony and he was on duty from 8.00 am to 8.00 pm at SJ Airport Picket, Arvindo Marg and at about 10.05 am he was present at in front of picket, one two wheeler scooter no. DL3SH8652 was coming from Jor Bagh road side and turned towards SJ Flyover and one blue line bus bearing no. DL1P3926 of route no. 502 came from the side of Madarsa at a fast speed which was being driven by the driver in rash and negligent manner and hit against the above said two wheeler scooter and two persons sitting on the scooter fell down and sustained injuries. He further deposed that he along with public persons picked up the injured Shiv Prasad and his wife and took them to SJ hospital and got them admitted there. He deposed that the accused (correctly identified) was driving the bus at the time of accident and he ran away from the spot FIR No. 143/96 9/32 leaving the bus at the spot. He further deposed that police recorded his statement as Ex. PW8/A and seized the bus and scooter vide memo as Ex. PW2/A & Ex. PW2/B. During his crossexamination he stated that he does not remember whether his statement i.e. examination in chief was recorded in this case or that he was examined on that day i.e. 30.01.2003. He denied the suggestion that if he had given his statement on 30.01.2003 it was false and given under police pressure. He stated that the distance between place of his duty and the place of accident was about 50 yards. He further stated that there was a main road in between the place of his duty and place of accident which was known by he name of Arvindo Marg. He further stated that there was a divider in the center of the said road and the total width of the road was about 40 yards. He stated that the accident had taken place about 50 feet away after crossing the main road and from the place which was situated in front of his place of duty. He further stated that the traffic at that time was not heavy. He further stated that the traffic was of all type i.e. buses, trucks, scooter and car etc. He further stated that before impact he was watching the general traffic and his attention was drawn towards the place of accident after hearing the noise of impact. He FIR No. 143/96 10/32 admitted that when he saw towards the place of accident the accident had already taken and bus and scooter were in stationary condition and not in a motion. He further stated that beside him there were 34 public persons and none of them accompanied him and the injured to the hospital. He further stated that he did not inquire about the name and address of those persons who were present at the place of accident and he had informed to the IO about those persons and IO did not make any investigating or inquiry from those persons. He admitted that he saw towards the place of accident the driver of the bus had already fled away from the spot and he did not see him before he fled away from the spot. He admitted that he did not give any physical description of the bus driver. He admitted that the vehicle going on the main road had a preferential right to proceed first then the vehicles which was coming from the side of lane or side road.
14. PW 9 M.S. Rawat deposed that he identified the dead body of the deceased Shiv Prasad in the hospital vide memo as Ex. PW9/A.
15. PW10 Ct. Habib Khan deposed that on 07.05.1996 he was posted at PS Lodhi Colony and he along with SI Dharampal reached at RML hospital where Shiv Prasad reported to have died and after postmortem dead body FIR No. 143/96 11/32 was handed over to his legal heirs.
16. PW11 HC Hoshiar Singh deposed that on 13.03.1996 he was posted as DO from 8.00 am to 4.00 pm and on that day at about 12.40 pm on receipt of rukka from Ct. Ramesh Chand sent by ASI Mohd. Israil he registered the FIR as Ex. PW11/A and he handed over the copy of FIR and rukka to Ct. Ramesh Chand.
17. PW12 HS Rawat Mishra deposed that as per MLC no. 50972 of injured Shiv Prasad S/o Budhi Ram he was examined by Resident Dr. Raj Gopal and later on the injured was referred to RML hospital on the same day. He identified the signatures of Dr. Raj Gopal on Ex. PW12/A. He further deposed that he had also seen Xray report no. 1817 dated 13.04.1996 of injured Shiv Prasad and as per report Dr. Ashok Charan had opined the fracture of temporo parieal bone and left ulna. He identified his signatures on Ex. PW12/B.
18. PW13 Sh. Surender Singh deposed that he had seen the report vide Cr. No.11973/96 i.e. Ex. PW13/A of Shiv Prasad which had been prepared FIR No. 143/96 12/32 by Dr. Vandana.
19. PW14 SI Dharampal Singh deposed that on 07.05.1996 he was posted at PS Lodhi Colony and he received the investigation of the case by order of the SHO. On receiving DD no.13A regarding the death of injured Shiv Prasad at RML hospital. On receiving the information he along with HC Jai Prakash and Ct. Habib reached at RML hospital where the dead body was identified by the relatives and thereafter he got postmortem of the dead body at AIMS hospital and handed over the dead body to the relatives and recorded the statement of relatives to this effect. He collected the postmortem report and handed over the same along with the file to MHC (R) after adding Section 304A in the file.
20. PW15 SI Mohd. Israil deposed that on 13.04.1996 he was posted at PS Lodhi Colony as ASI and on that day on receiving DD No. 4A he along with Ct. Ramesh Kumar reached at spot where bus bearing no. DL1P3926 and two wheeler scooter bearing no. DL3SH8652 were found in accidental condition where he came to know that injured was already moved to Safdarjung hospital by HC Domnic Anand. He further deposed FIR No. 143/96 13/32 that Ct. Ramesh Kumar was instructed to remain at the spot and he reached Safdarjung hospital where Shiv Kumar was found admitted in ward B vide MLC no.50972/96. He further deposed that he moved an application for seeking permission of recording of statement of the injured on which Doctor opined him as not fit for statement. He came back to the spot where HC Domnic Anand met him and he claimed himself to be eye witness of the incident. He recorded the statement as Ex. PW8/A and prepared rukka on his statement as Ex. PW15/A and got registered FIR through Ct. Ramesh. He also prepared site plan as Ex. PW15/B at the instance of complainant. He further deposed that Bus no. DL1P3926 and two wheeler scooter no. DL3SH8652 were taken into police possession vide seizure memo Ex. PW2/A and Ex. PW2/B. He further deposed that case property was deposited in Malkhana and he had issued a notice u/s 133 M.V. Act to the owner of the bus as Ex. PW15/C. He further deposed that the injured remained unfit for statement and later on succumbed to injuries at RML hospital. He further deposed that he collected the MLC's from Safdarjung hospital. He further deposed that the vehicles were got mechanically inspected.
He further deposed that on dated 05.05.1996 the accused FIR No. 143/96 14/32 Gainender (correctly identified) was produced by owner of the bus at police station. He further deposed that the accused was arrested in the case vide personal search memo as Ex. PW7/A. He further deposed that the accused was identified by the complainant and after completion of investigation he reported the matter to the SHO.
21. PW16 Dr. T. Millo deposed that he had been deputed by Superintendent, AIIMS to depose in place of Dr. Ajit Jose Kokkat who had left the institute and whose present whereabout are not available. He further deposed that he can identify his writing and signatures as he had worked with him.
He further deposed that he had seen the Postmortem Report no. 426/96 of deceased Shiv Prasad as Ex. PW15/A. He deposed that as per postmortem report cause of death was comma which resulted on account of head injuries caused by RTA. He further deposed that all injuries were antimortem in nature.
22. I have heard the arguments advanced at bar by the learned Defence counsel as also learned APP and have carefully gone through the FIR No. 143/96 15/32 evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
23. In order to prove its case and establish the guilt of the accused the prosecution has to prove that the accident was caused by accused Gianender Singh while driving bus bearing registration no. DLIP3926 in a rash and negligent manner which resulted in death of one Shiv Prasad.
24. After going through the material on record and giving my thoughtful considerations to the arguments advanced at bar, I am of the considered opinion that the prosecution has successfully brought home the guilt against the accused.
25. It stands proved/established from the deposition/testimony of eye witness ASI Domnic Anand who was examined as PW8 and whose depo sition was duly corroborated by the other prosecution witnesses including Ms. Manju (PW5) and SI Mohd. Israel (PW15) that it was the rash and negligent driving of accused Gianender which resulted in the death of Shiv Prasad.
FIR No. 143/96 16/32
26. PW 8 ASI Domnic Anand who is the eye witness of the accident proved that on 13.04.1996 while he was present at police picket at Safdar jung Air Port, Arvindo Marg, he saw a two wheeler scooter bearing no. DL3SH8652 being hit by blue line bus bearing no. DLIP3926 of route no.502. He proved that the bus was driven by the accused in a rash and negligent manner and at a fast speed and it hit the scooter from the back side as a result two persons sitting on the scooter fell down and received injuries. He proved that he took both the injured i.e Shiv Prasad and his wife to Safdarjung hospital and got them admitted there.
This witness thus elaborately narrated the circumstances in which the accident occurred and duly identified the accused as the driver of the offending bus.
27. Deposition of this witness was duly corroborated by the other prose cution witnesses.
28. PW 5 Ms. Manju who is the wife of deceased Shiv Prasad proved that on 13.04.1996 while she along with her husband were going on the two wheeler scooter to attend a marriage and at around 10.00 am whey they reached Safdarjung hospital a blue line bus came from their back side and hit their scooter. She proved that as a result of accident/impact they FIR No. 143/96 17/32 fell down and she became unconscious and they were removed to hospital by the police. She further proved that on 06.05.1996 her husband scummed to his injuries.
29. Further credence to the prosecution story was lend by Ct. Ramesh Kumar (PW 2) who proved that on receiving information regarding the acci dent vide DD No. 4 A, he along with IO reached at the spot where they found the offending bus and the scooter in accidental condition and they came to know that the injured had been removed to hospital. He proved that IO went to the hospital and came back after some time and IO pre pared the ruqqa which he took to PS and got the present case FIR regis tered. This witness further proved that he came back to the spot and HC Domnic also reached there and the IO recorded his statement and there after the offending bus and the scooter were seized by the IO in his pres ence vide Ex.PW2/A & Ex. PW2/B respectively.
30. IO SI Mohd. Israel (PW 15) corroborated the deposition of Ct. Ramesh Kumar as well as the other prosecution witnesses and duly proved that when he reached the spot in pursuant to DD no.4A he came to know that the injured had been removed to Safdarjung hospital by HC FIR No. 143/96 18/32 Domnic Anand. He proved that HC Domnic claimed himself to be the eye witness of the accident and he recorded the statement of HC Domnic i.e. Ex. PW8/A, endorsed the same as Ex. PW15/A i.e the rukka and got the present case FIR registered through Ct. Ramesh Kumar. He also proved the site plan of the accident as Ex. PW15/B as well as the fact that he seized the both vehicle in question vide Ex. PW2/A & B respectively. He further proved that in pursuant to his notice u/s 133 M.V. Act i.e. Ex. PW15/C the owner of the bus produced the accused and on identification of the complainant he arrested him.
31. The mechanical inspection report of vehicles in question was proved by SI Amar Singh as Ex. PW1/A & B respectively. As per the mechanical inspection both the vehicles did not suffer any mechanical defect. The bus received damages on its front bumper and head light and the scooter was badly damaged.
32. The FIR was proved by HC Hoshiyar as Ex. PW11/A.
33. The nature of injuries as sustained by Shiv Prasad along with the X ray report, PM report were proved by PW12, PW13 & PW16 vide docu ments i.e. MLC no.50972 i.e. Ex. PW12/A, Xray report no.1817 i.e. Ex. PW12/B, CR. No.11973/96 i.e. Ex. PW13/A and the PM report no.426/96 FIR No. 143/96 19/32 was proved as Ex. PW15/A. These reports make it amply clear that the in juries were received by the deceased in a road traffic accident and the cause of death was due to receipt of head injuries which were antimortem in nature.
34. Hence, it stands duly established/proved that on 13.04.1996 ac cused Gainender was driving the offending bus at the time of accident and that he while driving his bus hit against the scooter of Shiv Prasad which resulted in his death.
35. During the course of the arguments, Ld. Defence Counsel vehe mently argued that the prosecution story suffers from various loopholes/contradictions and the prosecution has miserably failed to bring home the guilt against the accused. It was argued that PW 8 ASI Domnic Anand was not an eye witness and was in fact a planted witness. It was ar gued that in view of the statement made by PW8 ASI Domnic during his crossexamination he cannot be relied upon. It was argued that prosecu tion has miserably failed to prove that the accused was driving the offend ing vehicle at the time of accident as PW5 Ms. Manju admittedly failed to identify the accused as the driver of the offending bus. It was argued that even the Superdar/owner of bus in question did not support the prosecu FIR No. 143/96 20/32 tion story and turned hostile. Thus it could not be proved that at the time of accident the accused was driving the offending bus. It was lastly argued that despite availability no public witness was joined in the investigation which casts further doubts upon the prosecution story.
36. However, I do not agree with the either contentions of the Ld. De fence Counsel.
37. I have no doubts that ASI Domnic was a eye witness of the accident. In my opinion testimony of ASI Domnic is itself sufficient to bring home the guilt against the accused. As already discussed above ASI Domnic elabo rated narrated the circumstances in which the accident had occurred. He proved that the accident occurred in his presence and that the accused was driving the bus in a rash and negligent manner and it hit the scooter of the deceased/injured. I find no force in the contentions of the Ld. Defence Counsel that he was a planted witness. First of all, the presence of ASI Domnic at the spot was not a coincidence but his presence was natural. In view of deposition of ASI Domnic as well as site plan Ex. PW15/B it is clear/writ large that ASI Domnic was present at the spot of accident. As per the site plan the police picket where ASI Domnic was on duty is just oppo site to/in front of the place of accident. Secondly, it is established from the FIR No. 143/96 21/32 deposition of the IO that when he reached the spot of accident HC Domnic met him and he claimed himself to be eye witness of the accident and he recorded his statement i.e Ex. PW8/A, endorsed the same as Ex. PW15/A and got the FIR registered. This statement of the IO leaves no doubt that HC Domnic was the eye witness of the accident. It will be worth while to mention that deposition of IO remained unchallenged. He was not cross examined and I find no reasons to disbelieve him/doubt his testimony. Even Ct. Ramesh (PW2) proved that HC Domnic had met the IO and IO recorded his statement at the spot. Hence, there are no doubts that HC Domnic was the eye witness of the accident.
38. My opinion that HC Domnic is the eye witness is further strength ened/finds force from MLC of Shiv Prasad i.e. MLC no.50972 i.e. Ex. PW12/A. In the said MLC it has been categorically noted by the Doctor on duty that injured Shiv Prasad was brought to hospital on 13.04.1996 at 10.35 am i.e. after the accident by HC Domnic.
39. During the course of arguments it was also one of the contentions of the Ld. Defence counsel that in his crossexamination HC Domnic admitted that he did not see the driver of the bus at the spot and that at the time when he saw towards the place of accident the driver of the bus had al FIR No. 143/96 22/32 ready fled away from the spot therefore, the identity of accused as the driv er of the bus could not be established through his testimony as well. How ever, I do not agree with the Ld. Defence counsel. PW8 HC Domnic was examined on 30.01.2003. During his examination in chief he deposed as under: " the accused now present in the court today was driving the bus at the time of accident and he run away from the spot leaving the bus at the spot."
40. This statement of PW8 HC Domnic makes it crystal clear that he was the eye witness of the accident and that he had seen the accused at the time of accident while driving the bus. This witness was not crossex amined on 30.01.2003. It was only after the application u/s 311 Cr.P.C. of the accused was allowed by the Ld. Sessions Court during the appeal pre ferred by the accused against his conviction by the Ld. Predecessor of this court that ASI Domnic was recalled and he was crossexamined on 31.01.2011. No doubt, during his crossexamination ASI Domnic gave a version contrary to his examination in chief however, it should not be lost sight of the fact that firstly, his cross examination took place 15 years after the accident and 8 years after his examination in chief. After such a long FIR No. 143/96 23/32 gap of 15 years a person cannot be expected to state with mathematical precision regarding an accident which he saw 15 years back. Human memories are apt to blur with passage of time. A person cannot be expect ed to give a parrot like narration of an incident almost two decades old. In my opinion when ASI Domnic was recalled for cross examination, his ex amination in chief should have been read over to him. His memory should have been refreshed. But the same was not done. In fact, the first few lines of his crossexamination reveal the same. They read as: "I do not re member whether my statement i.e. examination in chief was recorded in this case or that I was examined on that date on 30.01.2003. It is in correct to suggest that if I had given any statement on 30.01.2003 the same was false and given under police pressure." If this witness was not remembering his testimony which was recorded 8 years back how could it be expected that he would have remembered the entire facts after 15 years. Even otherwise, the inconsistencies appearing in his crossex amination can be easily ignored in view of the law laid down in case titled as Khujji @ Surendra Tiwari Vs. State of M.P. (SC) 1992 (3) RCR (Crl.)
158. FIR No. 143/96 24/32
41. I may again reiterate at this stage that in view of rukka Ex. PW8/A and Ex. PW15/A statement of IO HC Mohd. Israel (PW15) and examina tion in chief of HC Domnic as recorded on 30.01.2003 I have no doubts that he was the eye witness of the accident. In fact, I am of the opinion that once the statement of HC Dommnic came on record, it was for the ac cused to establish that he was not present at the spot of accident or that he was present at some other place.
42. One of the arguments of the Ld. Defence counsel was that in the ab sence of test identification parade, no description of the accused given in the rukka/FIR identification of the accused/driver for the first time in the court is no identification in the eyes of law. Reliance was placed by the Ld. Defence Counsel on the law laid down in case titled as Vijay Vs. State of Delhi 1985 (1) Crimes 31, Subhash vs. State of U.P. 1987 CRI.L.J. 1991 and Mohd. Abdul Hafeez Vs. State of A.P. AIR 1983 SC 367. However, I do not agree with the Ld. Defence Counsel and neither do the case laws relied upon by the Ld. Defence counsel come to the aid of the accused. In his statement Ex. PW8/A HC Domnic had clearly stated that after the accident the driver fled away from the spot and that he can recog nize the driver, if he was shown to him. In his deposition IO SI Mohd Israel FIR No. 143/96 25/32 (PW15) categorically stated that he arrested the accused on the identifica tion of the complainant. Complainant is none other than HC Domnic. The relevant portion of his deposition read as: "On 05.05.1996 the accused Gianender present today in the court was produced by owner of the bus at police station the accused was arrested in the case vide per sonal search memo Ex. PW7/A. The accused was identified by the complainant." As already discussed above testimony of the IO remained unchallenged. I have no reasons to disbelieve him. Hence, it was not a case where the eye witness had identified the accused/driver for the first time in the court but it was the case where eye witness had seen the ac cused/driver at the spot as well as identified him in the police station at the time of his arrest.
43. Regarding the contention that Ms. Manju (PW5) i.e. wife of the deceased and PW3 Satender Kumar Aggarwal owner of the vehicle turned hostile and did not support the prosecution story suffice would be to say that as already discussed above the testimony of PW8 Domnic is itself sufficient to bring home the guilt of the accused. Their not supporting the prosecution story or for that matter the absence of any public FIR No. 143/96 26/32 person/public witness has in my opinion not affected the prosecution story in any manner. The Indian Evidence Act does not specify any particular number of witnesses required to prove a fact and a fact can be proved even by one witness whether he is official or independent public witness depending upon the facts and circumstances of the case. Law requires that evidence has to be weighed and not counted (Ambika Prasad and Ano. Vs State 2002 (2) CRIMES 63 (SC). The Evidence Act does not lay down about any number of witnesses needed for proving a particular fact.
44. Reliance can be placed upon Chittar Lal v. State of Rajasthan, (SC) 2003 Cri.L.J. 3548 wherein it was held:
It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testi mony is found to be reliable, there is no legal impediment to convict the ac cused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. 1996(1) RCR(Crl.) 308 (SC) relied on.
45. The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the In FIR No. 143/96 27/32 dian Evidence Act, 1872. This position has been settled by a series of de cisions. The first decision which has become locus classicus is Mohamad Gugal Esa Mamasan Ger Alalah v. The King, AIR 1946 PC 3. The Privy Council focused on the difference between English Law where a number of statutes make conviction impermissible for certain categories of offences on the testimony of a single witness and Section 134 of Evidence Act. The view has been echoed in Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 , Guli Chand and others v. State of Rajasthan, AIR 1974 SC 276, Vahula Bhushan @ Vehuna Krishnan v. State of Tamil Nadu, AIR 1989 SC 236, Jagdish Prasad and others v. State of M.P., AIR 1994 SC 1251, and Kartik Malhar v. State of Bihar, 1996(1) RCR(Crl.) 308 (SC) : 1996(1) SCC 614, Namdeo v. State of Maharashtra, (SC) 2007(2) R.C.R.(Criminal) 893 and Shivaji Sahebrao Bobade v. State of Maharashtra, (1973)2 SCC 793.
46. None the less I am of the opinion that as far as Ms. Manju (PW5 ) is concerned it cannot be held that she turned hostile. In fact she truthfully deposed about the incident. The bus had hit the scooter on which she was the pillion rider on its backside. After the accident she became uncon scious. There was no occasion for her to either see the driver or the num FIR No. 143/96 28/32 ber of the offending bus. As far as PW3 Surender Kumar Aggarwal is con cerned I have no doubts in concluding that he being the owner of the bus and the accused being his driver gave a false story just to save the ac cused who had been under his employment.
47. Regarding rash and negligent driving it is to be seen that what is rash/negligence varies from case to case and there cannot be any fixed parameters for judging rashness/negligence. At the same time, there can not be any assumption/presumption of the same. Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the conse quences. Criminal negligence on the other hand is the gross and culpable or proper case and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the cir cumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. (Niranjan Singh v. State (Delhi Administration), (Delhi) 1996(1) R.C.R.(Criminal) 320.
48. Meaning of expression negligent act and rashness came up for FIR No. 143/96 29/32 discussion in the case titled as Prabhakaran v. State of Kerala, (SC) 2007(3) R.C.R.(Criminal) 605 and the Hon'ble Apex Court Held : (1) A negligent act is an act done without doing something which a reason able man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it A rash act is a negli gent act done precipitately.
(2) Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law.
(3) Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
49. In the case at hand the eye witness PW 8 (HC Domnic Anand) cate gorically stated that the accused while driving the offending bus in a rash and negligent manner and fast speed hit the scooter of the deceased/in jured from behind. Similarly injured PW5 Ms. Manju (wife of deceased Shiv FIR No. 143/96 30/32 Prasad) was the pillion rider on the scooter at the time of accident in her examination in chief stated that the offending bus came from the back side at a very high speed and hit their scooter from the back, as a result they fell down from the scooter. She further stated that accident happened due to fast speed and negligent driving of the driver of the bus as they were go ing in their lane. These statements of PW5 & PW8 clubbed with the site plan i.e Ex. PW15/B leave no doubt as to the rash/negligent/careless/reck less manner in which the bus was driven by the accused. It is beyond my contemplation that how the accused could not see the approaching traffic and despite the fact that there was a crossing he was driving the bus at a fast speed as narrated by PW5 & PW8. Hitting from the back is per se neg ligence in fact it is rashness/negligence writ large.
50. However, at the same time I am of the opinion that the prosecution could not prove that Ms. Manju (PW5) had also received injuries in the accident. There is no medical record in this regard. No MLC, no opinion of the doctor whatsoever and in fact nothing to suggest that she was given any medical aid after the accident on 13.04.1996.
51. In view of my above discussion, the accused is held guilty and FIR No. 143/96 31/32 convicted u/s 279/304A IPC in the present case.
52. A copy of this judgment be supplied to the accused free of cost and the matter be now listed for arguments on the point of sentence.
Announced in the open (Gaurav Rao)
on 10.05.2011 MM (SD)/Delhi.
FIR No. 143/96 32/32