Delhi District Court
Krishan Kumar vs . State on 16 July, 2012
Krishan Kumar Vs. State
CA No.18/12
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDITIONAL SESSIONS JUDGE
DWARKA COURTS : DELHI
In the matter of :
Krishan Kumar
S/o Sh. Rajinder Kumar
R/o RZ36C, Shiv Enclave
Sultan Garden, Najafgarh
New Delhi. ... Appellant
VERSUS
The State
(Govt. of NCT of Delhi)
... Respondent
CA No.18/12
Date of Institution:31.01.12
Reserved for orders on:05.06.12
Judgment announced on:16.07.12
JUDGMENT
1. Vide this judgment, I shall dispose off this appeal preferred against the impugned judgment of conviction dated 06.01.2012 as well as order on sentence dated 09.01.2012.
2. Brief facts, in net shell, are that on 27.09.2008, Constable Ramvir was on duty in an anti snatching drive at underpass domestic flyover near Airport Tower. During his duty hours, he CA No.18/12 1 16.07.2012 Krishan Kumar Vs. State CA No.18/12 saw one blue line bus bearing No. DL 1PB 3552 coming from Palam flyover at a very high speed in a rash and negligent manner driven by appellant/accused and hit the one motorcycle bearing No. DL 3SV 3533 from behind and due to the impact, the motorcycle alongwith its rider Shiv Dass Vardhan S/o H Bardhan R/o RZC61, Mahavir Enclave, Palam, New Delhi had fallen and the injured received multiple injuries. Meantime, someone dialled 100 number and called the PCR which had removed the injured to Safdarjung hospital and on the request of passengers of the bus, constable/complainant allowed the bus to go to Nehru Place after having obtained the relevant documents of the bus namely registration certificate etc. The complainant has handed over the accused and offending bus to IO on his return alongwith bus in question and it transpired that the injured had succumbed to his injuries in Safdarjung hospital.
3. After holding the trial, the accused was convicted and sentenced. Feeling aggrieved by the impugned judgment of conviction and sentence order, the present appeal has been filed.
4. It has been contended by the counsel for the appellant CA No.18/12 2 16.07.2012 Krishan Kumar Vs. State CA No.18/12 that Ld. Trial Court has not appreciated the facts that the prosecution has not proved the case beyond reasonable doubt that the appellant was driving the vehicle on the fateful day, as PW3 Constable Ramvir during his deposition, has no where stated that the appellant was driving the vehicle in a rash and negligent manner. It is further contended that there is no evidence on record to infer that the accused was driving the vehicle and further the said vehicle was driven in a rash and negligent manner. It is further submitted that no passenger has been cited as an independent witness to support the charges that appellant was driving the vehicle and the fact that constable PW3 Ramvir allowed the appellant to go away from the scene of occurrence by taking the offending vehicle raises a doubt that the appellant was involved in this accident. Therefore the presence of the appellant/accused as driver of the offending vehicle has not been proved beyond reasonable doubt by prosecution and appellant/accused is entitled to benefit of doubt and be acquitted. In this regard he has relied upon (2009) DLT (Cri) 808 (DB), Hira Lal Vs. The State of NCT of Delhi 2012 (2) JCC 1311, Sarjeet Singh Vs. State 2012(2) JCC 1338, Vinod Kumar Vs. State 2011 (4) JCC 2786, Thana Ram Vs. STate of Haryana 1996 Cr. L.J.2020.
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5. It is submitted that PW3 had neither made a call to the police nor accompanied the deceased to the hospital. Therefore the presence of PW3 on the scene of spot is doubtful and he is a planted witness. It is further submitted that there is so many contradictions in the statement of PW3 and PW4 which improbablies the prosecution story and the accused is entitled to be acquitted of all the charges. In this regard, he has relied upon Din Dayal Vs. Raj Kumar 1998 II A.D (Cri) SC 5.
6. It is further submitted that there is a delay of five hours in lodging the FIR. It is further submitted that neither of the witnesses namely PW3 Ramvir and PW4 SI Ved Prakash had stated as to what time appellant was arrested as the column of the time of arrest of appellant is left blank in the arrest memo and other official/police witness interested witness Constable Vishram has not been examined. As such, these discrepancies regarding delay in lodging FIR and non mentioning of time of arrest in memo and non examination of Const. Vishram has raised suspicions regarding the prosecution story.
7. It has been further submitted that the deposition of PW3 is full of contradictions as he has deposed that on 27.09.2008 he was on duty near the under park domestic flyover near Airport CA No.18/12 4 16.07.2012 Krishan Kumar Vs. State CA No.18/12 Tower and about 3:50 pm, the offending vehicle was being driven by the appellant, in a very high speed, hit the motorcyclist. But the motorcycle driven by the deceased has been found in a good condition and there is no damage on the rear side of the above said vehicle. As such, when the motorcycle in question has been found in a working condition so the deceased has not expired on account of accident alleged to have been taken place, on account of the hitting of the offending bus driven by the accused.
8. It is further contended that the presence of PW3 at the spot is doubtful as PW4 has stated that when he reached at the place of occurrence with DD No.21A, no eye witness was found there and PW4, left Constable Vishram at the spot and went to Safdurjang hospital. After that PW4 came back on the scene of occurrence and recorded the statement of Constable Ramvir whereas PW3 has deposed that on the request of the passengers, he allowed the accused/appellant to go away from the scene of occurrence to drop the passengers and came back on the scene of occurrence. PW4 IO SI Ved Prakash came there after sometime and the accused also was present with the offending vehicle. So the presence of the eye witness PW3 on the spot is doubtful as the deposition of PW3 and PW4 is CA No.18/12 5 16.07.2012 Krishan Kumar Vs. State CA No.18/12 contradictory to each other. In this regard, Ld. Counsel for the appellant has relied upon State of U.P Vs. Gambhir Singh 2005(11) SCC 271.
9. It is further submitted that the conduct of PW3 alleged eye witness is also unnatural which clearly proves that he is a planted witness and he is not present on the spot as this witness has stated that the offending vehicle was being driven by the appellant in a very high speed and hit the motorcycle in question, this witness has failed to explain as to how he allowed the accused to go away from the place of occurrence on the assurance of the accused/appellant that he will come back after dropping the passengers. PW4 has also stated that no eye witness was present at the scene of occurrence. It is further submitted that another witness namely Constable Vishram has not been examined because he has went to the police station alongwtih rukka for registering of the FIR and signature of the constable Vishram has not been taken by the duty officer in column number 4 of the FIR as per rules. So the whole story of the prosecution smacks of malafide on the part of IO to falsely implicate the accused in the present case which makes the story doubtful.
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10. It is further submitted that the site plan has not been prepared on the spot as PW3 has submitted that site plan was prepared at his instance where PW4 submitted that he has prepared the site plan after 7:00 pm and offending vehicle was not present at the time of preparing the site plan, whereas PW3 in his deposition has stated that accused alongwith offending vehicle was handed over to the IO before 6:45 pm, whereas PW4 deposed that he has prepared the site plan after 7:00 pm. Therefore as per the prosecution story, the offending vehicle was not present at the scene of occurrence on or before 6:45 pm. Therefore, the prosecution story is wholly unreliable and makes the present of the accused/appellant at the scene of incident highly doubtful.
11. It is further submitted that the photographs of the offending bus had not been taken in an accident position or parked at the place of alleged occurrence in accident position. The photographs are stated to be taken near under pass fly over whereas in the photographs Ex. PW4/P1 to PW4/P5 no bus route has been shown and trees and bushes are shown. In Ex. PW4/P6 and PW4/P7, no under pass flyover is shown as the said photographs are taken at the police station. It is further contended that the route of the offending bus is not plying on CA No.18/12 7 16.07.2012 Krishan Kumar Vs. State CA No.18/12 this road as PW4 has admitted that there is no DTC bus stop going from Palam flyover through under pass fly over. So there is no question of taking the offending bus from the alleged route as per rules. As the route of the bus in question is to ply from Palam Delhi site towards the Mehram Nagar by railway crossing Palam phatak, Prahladpur, Hanuman temple. Therefore the presence of the appellant alongwith offending vehicle at the place of occurrence is highly improbable and the appellant is entitled for benefit of doubt and be acquitted of all the charges.
12. I have heard counsel for the appellant and the Ld. Counsel for the State and gone through the record of the trial Court.
13. The first contention of the counsel for the appellant is that there is no eye witness account that the vehicle in question was driven by the appellant on the fateful day and the eye witness PW3 is a planted witness by the police in order to solve the case. But this contention is wholly erroneous and not sustainable in the eyes of law, as PW3 in unequivocal term deposed that accused was driving the vehicle as PW3 was on duty near about the scene of incident and he had seen the incident whereby the appellant/accused had hit his bus with the motorcycle in question and the deceased died. No suggestion CA No.18/12 8 16.07.2012 Krishan Kumar Vs. State CA No.18/12 has been given by the appellant/accused to PW3 that accused was not driving the bus. Furthermore, PW6, owner of the vehicle had testified in his chief that accused was the driver of the offending vehicle bearing No.DL 1PB 3552 on 27.09.2008 i.e fateful day on which the bus met with accident with the motorcycle. Even no such suggestion has been given to PW6 that accused was not driving the bus on the fateful day and the bus in question was not being plied by the accused on the permissible route and the place of accident not falls on the said permissible route.
14. Other contention of the counsel for the appellant/accused is that there is no evidence on record to prove that appellant was driving the vehicle in rash and negligent manner and essential ingredients of section 304 A IPC has not been fulfilled by the prosecution in order to bring home the guilt of the appellant and without there being any evidence on record that vehicle in question/bus was driven by the appellant/accused in rash and negligent manner, no conviction can be sustained. But this contention is also having no force in law, as PW3 in his evidence has stated that accused was driving the offending bus in high speed in a 'guflat manner' i.e wrong manner and hit the motorcycle bearing No.DL 3SV 3533 and PW3 has further stated CA No.18/12 9 16.07.2012 Krishan Kumar Vs. State CA No.18/12 that he tried to take care of the injured and someone had made a call at 100 number. This piece of evidence is corroborated by the deposition of PW5, Prince Jeremiah that he had made a call to police at 100 number after seeing the accident in which the bus in question was involved. Therefore there is evidence on record to prove that appellant/accused was driving the vehicle in a very high speed in wrong manner/gaflat manner. Therefore there is enough evidence to infer that accused/appellant was driving the vehicle in a rash and negligent manner. The case law replied upon by the counsel for the appellant is not applicable to the facts and circumstances of the present case as in those cases, testimony to the effect that the driver was driving the vehicle in a very high speed. So the facts of the present case are distinguishable from the facts of case law relied upon by the counsel for the appellant in para no.4 of this judgment.
15. Now coming to the next contention, the counsel for the appellant/accused has contended that there are so many contradictions in deposition of PW3 and PW4 which improbablies the case law as PW3 has stated that deceased was shifted to the hospital by the PCR officials and he had allowed the accused to drop the passenger at the destination i.e Nehru Place, after seizing the documents/registered RC of the bus in CA No.18/12 10 16.07.2012 Krishan Kumar Vs. State CA No.18/12 question from the accused whereas PW4 has stated that when he came to the spot, he had found no eye witness and PW4 went to the hospital and came back at the spot after 45 minutes alongwith Constable Vishram and he met with eye witness PW3 and recorded his statement Ex. PW3/A and rukka was sent for registration of the FIR. PW4 prepared the site plan at the instance of PW3 and Constable Vishram came at the place of incident alongwith copy of FIR and rukka and after making seizure memo of the motorcycle, bag, helmet etc, Constable Rambir produced the accused alongwith offending bus which was also seized vide seizure memo Ex. PW3/D. These discrepancies/contradictions as pointed out by the counsel for the appellant/accused, appears to be minor discrepancies which occurs on account of the fact that a witness can not be expected to have parrot like version of prosecution story as human memory fades away with passage of time and further more the human memory is also fallible. In this regard, I would like to rely upon Bharwada Bhoginbai Hirjibhai Vs. State of Gujarat AIR 1983 SC 753 wherein it has been observed as under:
Over much importance cannot be attached to minor discrepancies. The reasons are obvious:
CA No.18/12 11 16.07.2012
Krishan Kumar Vs. State
CA No.18/12
(i) By and large a witness cannot be expected to possesses a
photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen:
(ii) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(iii) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one persons mind whereas it might go unnoticed on the part of another.
(iv) By and large people cannot accurately recall as conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(v) In regard to exact time of an incident, or the time duration CA No.18/12 12 16.07.2012 Krishan Kumar Vs. State CA No.18/12
of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the timesense of individuals which varies from person to person.
(vi) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(vii) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination 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. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by himPerhapas it is a sort of psychological defence mechanism activated on the spur of the moment.
So the case law relied upon by the defence counsel in para CA No.18/12 13 16.07.2012 Krishan Kumar Vs. State CA No.18/12 no.5 and 8 of this judgment are distinguishable from the facts of the present case.
16. So far as the delay in lodging the FIR is concerned. There is no delay in lodging the FIR as PW4 first went to the scene of incident and thereafter he went to Safdurjang Hospital and came back at the spot after 45 minutes and recorded the statement of eye witness PW3. So there is no delay in lodging the FIR.
17. The contention regarding time of arrest not mentioned in the column by the police in the arrest memo is not such a vital lapse which may vitiate the trial, otherwise it is a minor discrepancy which is not to effect the sanctity of the trial. So far as non examination of Const. Bishram is concerned, law is settled that only the quality and not the quantity of the evidence led by the prosecution is to be seen to conclude whether the prosecution has proved its case or not.
18. Now coming to the next contention of the counsel for the appellant that PW3 is a stock witness/planted witness as he was not on duty near under pass domestic fly over. No accident had taken place, however, motorcycle in question has been found in CA No.18/12 14 16.07.2012 Krishan Kumar Vs. State CA No.18/12 good working condition and there was no damage in the rear site of the above said vehicle. But this contention is also having no force as mechanical inspection report prepared by PW Tasnimuddin vide Ex. P1 wherein the motorcycle in question has been found damaged and bus driven by the accused bearing No. DL 1PB 3552 has been found damaged as scratches, dent etc upon the bus are noticed and detailed in the said report. So mechanical inspection Ex. P1 pinpoints to the fact that motorcycle and bus in question had got damaged on account of the accident in which the deceased died. So this contention is also hereby rejected.
19. Now coming to the next contention i.e site plan had been prepared at his instance as deposed by PW3, where PW4 had prepared the site plan after 7:00 pm and the offending vehicle was not present at the time of preparation of the site plan, whereas PW3 has deposed that he had handed over the accused alongwith offending bus to the IO before 6:45 pm. Therefore the offending vehicle was not present at the place of incident at 6:45 pm. This discrepancy as contended by the counsel for the appellant is minor discrepancy and bound to occur with the passage of time in the deposition of the witnesses. The Ld. Trial Court while delay with this aspect in para 20 of the impugned CA No.18/12 15 16.07.2012 Krishan Kumar Vs. State CA No.18/12 judgment, has rightly relied upon Toli Singh and another vs State of Uttar Pradesh 1962 (1) Cri.L.J 469. So far as, the photographs of the offending bus is concerned, wherein no bus route has been shown and trees and bushes appeared therein pinpoints that photographs have been taken in the police station and not at the scene of incident as PW4 has admitted that there was no DTC bus stop going from Palam Fly over to under pass fly over, but this contention is also having no force as PW5 had already deposed that he had seen the bus bearing no. DL 1PB 3552 met with an accident with the motorcycle. Although he had turned hostile but this witness has testified that the bus in question was involved in the accident. Appearance of trees and bushes in the above said photographs does not caste any doubt as trees appears to be present on both the sides of the roads.
20. So far as bus route is concerned. IO has also denied the suggestion that offending vehicle was seized at the railway crossing phatak, but in view of the eye witness account of PW3 and PW5, the bus route which is alleged to be from Palam towards Mehram Nagar by railway crossing (Palam phatak, Prahladpur, Hanuman Temple) is immaterial and cannot tantamount to cause any doubt in the prosecution story.
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21. From the above discussion, I am of the opinion that the appeal is devoid of merits and is hereby dismissed.
22. Trial Court record be sent back with a copy of the order for information and compliance.
23. File of appeal be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya
on the 16th Day of July 2012 ASJ/ Dwarka Courts
New Delhi/16.07.2012
CA No.18/12 17 16.07.2012
Krishan Kumar Vs. State
CA No.18/12
CA No.18/12 18 16.07.2012