Delhi District Court
In Re: State vs Harpreet Singh on 20 May, 2011
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE:
DELHI
In Re: STATE VERSUS HARPREET SINGH
F.I.R. No: 451/01
U/s 279/338 IPC
P.S. Defence Colony
Date of Institution of Case : 20.03.2002
Date of Judgment Reserved for : 20.05.2011
Date of Judgment : 20.05.2011
JUDGMENT
(a) The serial no. of the case : 36/2/02
(b) The date of commission of offence : 06.07.2001
(c) The name of complainant : Jai Singh S/o Sh. Ch. Munni
Lal, R/o F89, Lado Sarai, New
Delhi.
(d) The name, parentage :Harpreet Singh @ Happy S/o
Sh. Joginder Singh, R/o B66,
Bholi Nagar, Masjid Moth, New
FIR No. 430/05
Delhi.
Present Address : As above
(e) The offence complained of : U/s 279/338 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Convicted
(h) The date of such order : 20.05.2011
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 06.07.2001 at about 5.45 PM at Khel Gaon Road, Opp. Shiv Mandir, New Delhi within the jurisdiction of police station Defence Colony, accused Harpreet Singh was found driving a scooter bearing no. DL4SR7552, in a rash and negligent manner thereby endangering human life and safety of others and while driving so he struck against Jai Singh which resulted in grievous injuries upon him and thus thereby the accused committed offence punishable u/s 279/338 IPC.
FIR No. 430/05
2. Charge sheet was filed in the court and in compliance of section 207 Cr.P.C. documents were supplied to the accused and thereafter, vide order dated 29.07.2003, notice u/s 279/338IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined five witnesses.
A brief scrutiny of the evidence recorded in the matter is as under:
4. PW 1 Retired SI Nand Lal Dua deposed that on 19.07.2001 he conducted the mechanical inspection of scooter bearing no. DL4SR7552 on the request of IO. His detailed report in this regard is Ex. PW1/A.
5. PW 2 Dr. Pooja deposed that she was working as a Radiologist in AIIMS hospital. She further deposed that she can recognize the handwriting and signatures of Dr. Sandeep appearing on Xray report no. 16272/01 of Sh. Jai Singh i.e. Ex. PW2/A and Xrat plate i.e. Ex. P1.
During her crossexamination she denied the suggestion that she FIR No. 430/05 was a handwriting expert. She further denied the suggestion that she was deposing falsely.
6. PW 3 Jai Singh deposed that on 06.07.2001 he was returning from Ladoo Sarai and at around 6.30 pm after getting down from the bus of route no. 413 at Andrews Ganj while he was going to his office i.e. Post Office Andrews Ganj, all of a sudden one two wheeler scooter came from Kotla side on its wrong side and struck against him and due to which he fell down on the road and received fracture injury on his left side near ankle. The accused (correctly identified) was driving the offending vehicle in a rash and negligent manner. He further deposed that he had seen him at the time of accident. One public person who was standing at the bus stand helped him and informed at his office. He further deposed that his office colleagues came there and they called the police at the spot and police took him to the hospital. He further deposed that IO met him in the hospital and recorded his statement as Ex. PW3/A. He further deposed that accused left the scooter at the spot and ran away from there. The scooter was being driven by the accused (correctly identified). He further deposed that IO seized the offending vehicle i.e. Scooter vide memo Ex. PW3/B. He further deposed that he does not know anything more in this FIR No. 430/05 case. He further deposed that accused was not arrested in his presence and he did not give any more statement to the IO.
However, he denied the suggestion that on 18.07.2002 he came to know the number of the offending scooter as DL4SR7552, Bajaj Chetak and he told the IO. He further denied the suggestion that he along with the IO of this case went to the workshop of the accused where at his instance, IO seized the scooter. He further denied the suggestion that he had given his statement in this regard as MarkA. He denied the suggestion that IO seized the DL of the accused from his workshop. He admitted that the seizure of the DL of the accused bears his signatures at point A Ex. PW3/C. He admitted that the arrest memo and personal search memo of the accused are Ex. PW2/D & PW2/E bears his signatures at point A. He denied the suggestion that he was deposing falsely. He denied that seizure memo of scooter and licence and arrest documents of accused were prepared at the workshop of the accused. He denied the suggestion that IO prepared the site plan at his instance.
7. During his crossexamination, he admitted that he did not note down the number of the two wheeler at the time of accident. He denied the FIR No. 430/05 suggestion that accused did not cause any accident with him or that accused has been falsely implicated in this case or that he was deposing falsely or that accused was falsely implicated in this case at the instance of the IO.
8. PW4 SI Champa Lal deposed that on 06.07.2001 he was posted as DO from 4.00 pm to 12.00 midnight at PS Defence Colony and on that day at about 8.20 pm on receipt of ruqqa by Ct. Satish sent by ASI Girwar Singh he recorded case FIR no. 451/2001 as Ex. PW4/A and made endorsement on the same as Ex. PW4/B.
9. PW 5 Dr. Surjeet Kumar deposed that on 30.10.2002 he was working as Senior Resident, Department of Surgery, AIIMS hospital and on that day injured Jai Singh was brought by his brother Rakesh Kumar who was examined by Dr. Alim Khan vide MLC no. 59507/2001 and Dr. Alim Khan gave his report as Ex. PW5/A. He further deposed that as the report, the nature of injuries were grievous.
During his crossexamination he stated that he does not know when Dr. Alim Khan left the service of the hospital. He further stated that he had FIR No. 430/05 not seen Dr. Alim Khan preparing the MLC and signing it. He further stated that the injuries can be sustained on account of accident or fall upon a hard surface.
10. I have heard the arguments advanced at bar by the learned Defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
11. 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 Harpreet Singh while driving scooter bearing registration no. DL4SR7552 in a rash and negligent manner and who while driving so hit against pedestrian Jai Singh which resulted in grievous injuries upon him.
12. 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.
FIR No. 430/05
13. It stands proved/established from the deposition/testimony of injured Jai Singh duly corroborated by the other prosecution witnesses that it was the rash and negligent driving of accused Harpreet Singh which led to grievous injuries upon Jai Singh.
14. PW 3 Jai Singh proved that on 06.07.2001 at around 6.30 pm at An drewz Ganj while he had just stepped down from the bus and was crossing the road, the accused while driving a scooter came from Kotla side i.e. on the wrong side and struck against him. As a result, he fell down and his an kle was fractured. After the accident, the accused ran away from the spot, leaving the scooter behind. He proved that public person helped him and also informed his colleagues who came to the spot and called the police. He further proved that police took him to hospital and also recorded his statement i.e. Ex.PW3/A.
15. FIR was proved by SI Champa Lal as Ex.PW4/A along with the en dorsement on the rukka as Ex.PW4/B.
16. The nature of injuries suffered by injured Jai Singh were proved by Dr. Pooja (PW 2) and Dr. Surjeet Kumar (PW 5). Dr. Pooja proved the X Ray report no. 16272/01 of Jai Singh along with the XRay plate as Ex.P FIR No. 430/05 W2/A and Ex.P1. Dr. Surjeet Kumar proved the report of Dr. Alim Khan on MLC No. 59507/01 as Ex.PW2/A.
17. The mechanical inspection report of the scooter is on record as Ex.PW1/A as proved by PW 1 SI Nand Lal Dua. As per the report, the scooter did not suffer from any mechanical defect.
18. During the course of the arguments, Ld. Defence Counsel had con tended that the prosecution story suffers from various loopholes/contradic tions and the prosecution has miserably failed to bring home the guilt against the accused. It was argued that no public witness was joined by the IO in the investigation despite the fact that the injured claimed that nu merous public persons had gathered at the spot at the time of accident and he was helped by a public person. It was argued that there are numerous inconsistencies and contradictions in the prosecution story which cast seri ous doubts upon the prosecution claim. For example, the injured could not give the number of the offending vehicle and though the injured stated that the accused was not arrested in his presence but the arrest memo bears the signatures of the injured. Even the site plan was not prepared by the IO at the instance of the injured but he prepared it on his own. It is further ar gued that no TIP of the accused was got conducted and his identification FIR No. 430/05 for the first time in the court is no identification in the eyes of law. It was also argued that even the IO could not be examined by the prosecution.
19. However, I do not agree with the either the contention of the Ld. De fence Counsel.
20. Testimony of an injured witness has its own efficacy and relevancy. He has no reasons to omit real culprit and implicate falsely the accused person. It's a well settled law that once the eye version is given particularly by the injured himself, the Court would normally rely upon such version of the prosecution unless it suffers from serious infirmities or improvements. (State of Gujarat v. Bharwad Jakshibhai Nagribhai, (Gujarat) (DB) 1990 Cri.L.J. 2531 and Balbir Singh v. State of Punjab, (P&H) 2003 Cri.L.J. 3148). In case titled as Appabhai v. State of Gujarat, AIR 1988 SC 696 , the Hon'ble Supreme Court has succinctly dealt with this aspect. The Court has held that the injured witness should be considered to be the best eyewitness to the incident and the discrepancy in his evidence which does not shake the basic version of the prosecution case may be discard ed.
21. In the present case, I find no reasons why injured Jai Singh would falsely implicate the accused. No reasons why he would depose falsely, FIR No. 430/05 there being no previous enmity between them and in fact nothing on record to suggest that they were known to each other prior to the accident. Furthermore, the defence failed to impeach his credit during his cross examination and his examinationinchief remained unchallenged on material particulars.
22. Injured Jai Singh categorically stated during his testimony as under:
"The accused now present in the Court was driving the two wheeler scooter in a rash and negligent manner. I had seen him at the time of accident.................Accused left the scooter at the spot and ran away from there".
23. I find no reasons to disbelieve the above statement of the injured. No doubt there are certain discrepancies which appears in his deposition qua the prosecution case. However, these discrepancies are too trivial in nature and cannot be made the grounds to throw away the testimony of the injured in toto. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance.
24. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 , it was observed by the Hon'ble Apex Court that a witness though wholly truthful, is liable to be overawed by the court atmosphere and the FIR No. 430/05 piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment, but that would be no ground for discarding the evidence of the witness. The discrepancies which are due to normal errors of perception or observation should not be given impor tance. The errors due to lapse of memory may be given due allowance. Further reliance may be placed upon the law laid down in Sohrab v. State of Madhya Pradesh, AIR 1972 SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998.
25. In the present case the court has keep in mind that the accident occurred in the year 2001 and the deposition of the injured was recorded in the year 2006 i.e. after five years of the accident. After lapse of such a long period it is not proper/justifiable to expect that a person would remember the events with mathematical precision. It is too much to ask from him. It is a common knowledge that ordinarily human memories are apt to blur with passage of time. Only a tutored witness can do so. Merely because this witness stated that the arrest was not made in his presence though, it is a matter of record that the arrest memo of the accused bears his signature it by itself does not efface/wash off the testimony of the injured. It is not an uncommon practice/not a new thing that the IO FIR No. 430/05 performs the proceeding orally/verbally and merely obtains the signatures of the witnesses on blank paper and afterwards fill them up as per the oral proceedings. But that does not mean that the documents as prepared by the IO are factually incorrect. May be the accused was arrested in the presence of the injured or may be he was arrested in his absence but the fact remains that the accused was identified by the injured as the driver of the offending vehicle which caused the accident. Is this discrepancy appearing in his testimony enough to disbelieve him? In my opinion, it is not. Why should he be disbelieved for a sloppy/slip shod investigation conducted by the IO? Similarly, just because the IO prepared the site plan on his own and did not seek the aid of the injured, the said lacuna can also not be formed the basis of disbelieving the injured. Reliance may be placed upon the law laid down in Balwant Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 84, Amar Singh Vs. Balwinder Singh 2003 AIR SCW 717, Lakshmi v. State of UP (SC) 2002 (4) R.C.R. (Criminal) 82, Ram Parshad v. State of Haryana, (P & H) (DB) 1992(3) R.C.R (Criminal) 231, Zahira Habibulla H. Sheikh v. State of Gujrat (SC), 2004 (4) S.C.C 158 and State of UP v. Jagdeo (SC) 2003 A.I.R. (SC) 660. FIR No. 430/05
26. Regarding the contention that no public person was joined by the IO at the spot, in my opinion, there was no requirement of the same and ab sence of any public person has not affected the prosecution story in any manner. As discussed above, the deposition/testimony of injured Jai Singh is itself sufficient to bring home the guilt against the accused. The public persons are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been exam ined. Nor it is proper to reject the case for want of corroboration by inde pendent witnesses if the case made out is otherwise true and acceptable. Civilized people withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable.
27. 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. FIR No. 430/05
28. 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.
29. 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 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, FIR No. 430/05 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.
30. It will be also pertinent to highlight at this stage the answer given by the accused to question no. 1 put to him during his examination u/s 313 Cr.P.C. which is admissible in evidence against the accused in view of sub clause 4 of section 313 Cr.P.C. The reply of the accused was as under:
"It is wrong to suggest. No accident occurred on the above said date, time and place. The scooter belonged to my father on the day of acci dent. Somebody might have borrowed the scooter from my father and caused the accident".
31. The offending vehicle i.e. scooter belonged to Sh. Jogender Singh i.e. the father of the accused however, he expired before he could be ex amined by the prosecution. Being the owner of the scooter in question, the IO had served him a notice u/s 133 M.V. Act to which he had replied that on the day of accident his son was driving the scooter. It is also a matter of record that even the IO expired before he could be examined and accord FIR No. 430/05 ingly, the said document could not be proved on record. However, in view of the testimony of the injured who categorically stated that the accused was driving the scooter at the time of accident clubbed with the answer to question No. 1 as discussed above, it stands established/proved that in deed on the day of accident, the accused was driving the scooter in ques tion which had hit Jai Singh. It is a matter of record that the scooter was seized on the same day i.e. on the day of accident vide Ex.PW3/B. In his statement u/s 313 Cr.P.C, the accused had taken a stand/plea that some body must have borrowed the scooter from his father and caused the acci dent. I have no doubts in concluding that the same is a false/sham/farce plea. Reasons are very simple. Firstly, if he was innocent and falsely impli cated why did he remain silent all this while? Why he did not make a com plaint against the IO for falsely implicating him? Secondly, he could have easily asked his father (owner/superdar of the scooter) as to whom he had handed over his scooter on the day of accident. I am not inclined to believe that his father handed over the scooter to somebody who was not known/unfamiliar to him. The accused/his father would have definitely pro duced the person to whom the scooter was handed over on the day of ac cident. But that was not done reason being it was nobody else but the ac cused who was driving the scooter on the day of accident. Hence, there FIR No. 430/05 was no way they could produce a person who never existed.
32. Regarding the contentions that the injured could not give the number of the scooter during his deposition and that the TIP of the accused was not got conducted suffice would be to say that as already discussed above the scooter was seized from the spot and the seizure memo bears the sig natures of the injured. Injured had categorically stated that the accused fled away from the spot after leaving the scooter behind. Hence, mere fact that he could not give the number of the scooter during his examinationin chief does not effect that prosecution story at all. As far as non conducting of the TIP is concerned in my opinion absence of TIP proceedings also do not cast any doubt upon the prosecution story. It was proved by the injured that he had seen him at the spot at the time of accident. Hence, it was not a case where the accused was for the first time identified by the injured in the court. Reliance may be placed upon the law laid down in "State of Hi machal Pradesh v. Lekh Raj, (SC) 2000(1) R.C.R.(Criminal) 10" and Malkhansingh and Others Vs. State of M.P., 2003 (3) RCR (Crl.) 550
33. Hence, no doubt remains that it was the accused who had caused the accident dated 06.07.2001 which resulted in grievous injured upon Jai Singh.
FIR No. 430/05
34. Regarding the 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. Thus, the main criterion for decid ing whether the driving which led to the accident was rash and negligent is not only the speed of the offending vehicle but deliberate disregard to the obligation of its driver to drive with due care and attention and taking a risk indifferent to the harmful consequences resulting from it. Niranjan Singh v. State (Delhi Administration), (Delhi) 1997(1) R.C.R.(Criminal) 320
35. Meaning of expression negligent act and rashness came up for 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 : FIR No. 430/05 (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.
36. In the case at hand the injured categorically stated that the accused hit him while driving the scooter on its wrong side. He further stated that the accused was driving the scooter in a rash and negligent manner. Driv ing on the wrong side of a road i.e. against the traffic rules and hitting a pedestrian is nothing but rash and negligence writ large. How can one af ford to be so careless and reckless so as to drive a vehicle on the wrong FIR No. 430/05 side and then hit a pedestrian who could not have contemplated that somebody could be come in from the wrong side?
37. Therefore, considering the evidence as led by the prosecution, especially the deposition injured, I am of the considered opinion that the prosecution has been able to prove the guilt against the accused beyond the shadow of doubt. Accordingly the accused is held guilty and convicted of charges in the present case.
38. 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)
Court on 20.05.2011 MM (South)/Delhi.
FIR No. 430/05