Delhi District Court
On Completion Of The Investigation vs K. Mishra & Anr on 29 November, 2022
IN THE COURT OF SALONI SINGH ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE- EAST DISTRICT,
KARKARDOOMA COURTS, DELHI.
CR No. 1526/2016
CNR No. DLET02-000137-2011
FIR No. 102/2010
Under Sections 279/337/338 IPC
Police Station Preet Vihar
State
v.
Lal Singh,
S/o, Sh. Shodan Singh,
R/o, H. No. 63/64, Bhola Nath Nagar,
Vishwas Nagar, Shahdara,
Delhi. ...Accused
Date of Institution : 05.11.2011
Date of Reserving order : 19.11.2022
Date of Judgment : 29.11.2022
Final Order : Convicted
Judgment: -
The accused was sent to stand trial for commission of offence punishable under
Section 279/337/338 Indian Penal Code (for short, "IPC") based on the First
Information Report (FIR) bearing no. 102 dated 24.03.2010 registered at Police
Station (P.S.) Preet Vihar, Delhi.
CR No. 1526/2016 1
1.On completion of the investigation, the charge sheet was filed in Court on 05.11.2011. On taking cognizance, the accused was summoned and on his appearance a copy of the entire charge sheet was supplied to him. Opportunity was granted to the accused to make submissions on point of charge and based on a prima facie case, vide order dated 05.11.2011, charge under Section 279/337/338 IPC was framed against the accused, the contents of which were read over and explained to the accused, to which he pleaded not guilty and claimed trial.
2. To substantiate their case in trial, the prosecution has examined the public witnesses, including Sh. Mahesh Chand Sharma as PW-1, Smt. Ramwati as PW-2, Sh. Mahipal as PW-3, Smt. Meena as PW-4, Sh. Ram Kumar as PW- 5, Sh. Naresh as PW-6, Sh. Prem Pal as PW-7, Sh. Shiv Kumar as PW-8, Sh. Rakesh Kumar as PW-10, Sh. Deputy as PW-13, Sh. Rinku as PW-14, and Sh. Vikash as PW-15, and police officials including Head Constable (HC) Satender Gaur as PW-9, Ct. Ranveer as PW-11, HC Suresh Kumar as PW-12, Sub-Inspector (SI) Shyamvir Singh as PW-16, Assistant Sub- Inspector (ASI) Satender Kumar as PW-17, Inspector P.S. Rawat as PW-18, and HC Deshpal as PW-19.
3. The said prosecution witnesses have relied upon and placed on record the superdaginama of the vehicle TATA 407 bearing registration number DL1LB6217 as Exhibit PW-1/B, statement of PW-3 as Exhibit PW-3/A, present FIR as Exhibit PW-9/A, endorsement on rukka as Exhibit PW-9/B, site plan showing the place of accident as Exhibit PW-16/A, seizure memo of the said vehicle as Exhibit PW-16/B, mechanical inspection report as Exhibit PW-16/C, seizure memo of driving licence of accused (with validity up to 19.09.2024) as Exhibit PW-16/D, seizure memo of photocopy of CR No. 1526/2016 2 documents of said vehicle including registration certificate (RC), insurance, permit and fitness as Exhibit PW-16/E, copy of driving licence of accused as Exhibit PW-16/F, the arrest memo of accused as Exhibit PW-16/G (also signature of PW-1 at point A on said arrest memo is Exhibit PW-1/A), personal search memo of accused as Exhibit PW-16/H, Daily Diary (DD) No. 13A as Exhibit A-1, MLCs of the injured persons/passengers including MLC no. 699/10 as Exhibit A-2, MLC no. 703/10 as Exhibit A-3, MLC no. 670/10 as Exhibit A-4, MLC no. 696/10 as Exhibit A-5, MLC no. 715/10 as Exhibit A-6, MLC no. 706/10 as Exhibit A-7, MLC no. 711/10 as Exhibit A-8, MLC no. 709/10 as Exhibit A-9, MLC no. 695/10 as Exhibit A-10, MLC no. 713/10 as Exhibit A-11, MLC no. 700/10 as Exhibit A-12, MLC no. 698/10 as Exhibit A-13, MLC no. 714/10 as Exhibit A-14, MLC no. 712/10 as Exhibit A-15, MLC no. 710/10 as Exhibit A-16, MLC no. 708/10 as Exhibit A-17, MLC no. 707/10 as Exhibit A-18, MLC no. 704/10 as Exhibit A-19, MLC no. 702/10 as Exhibit A-20, MLC no. 705/10 as Exhibit A-21, MLC no. 701/10 as Exhibit A-22, X-Ray report of Prem Pal as Exhibit A-23, CT scan report of Prem Pal as Exhibit A-24, X-Ray report of Mahipal as Exhibit A-25, X-Ray report of Sarvesh as Exhibit A-26, and DD no. 13 as Exhibit PW-20/A. The prosecution witnesses were cross- examined on behalf of the accused.
4. On completion of prosecution evidence, the accused was examined under Section 313 read with Section 281 of Code of Criminal Procedure, 1973 (for short, "CrPC"), wherein all incriminating evidence/material relied upon by the prosecution was put to the accused, which were denied by him stating that the speed of the tempo was around 20-25kmph and in trying to save a speeding vehicle coming from the front, he applied brakes because of which the tempo lost balance and overturned. Opportunity was then given to the CR No. 1526/2016 3 accused to lead evidence, which was not availed by the accused and the matter was listed for final arguments.
5. Final Arguments: - Final arguments were advanced on behalf of the State and the accused. Learned Assistant Public Prosecutor (APP) for the State submitted that the witnesses have identified the offending vehicle and the accused, and they have deposed about the manner in which the accused was driving the vehicle and how he had suddenly applied the brakes, which indicates negligence on the part of the accused. He argued that the driver had not taken due care despite knowing that the vehicle is small and was carrying several passengers. Learned APP also argued that the defence raised by accused that a speeding car had come in front has been raised for the first time by accused under Section 313 CrPC. Learned APP submitted that prosecution has proved the case beyond reasonable doubt.
6. Learned Legal Aid Counsel (LAC) for the accused submitted that most of the prosecution witnesses have turned hostile and have denied any negligence on the part of accused. He argued that none of the prosecution witnesses have stated that accused was driving the vehicle in high speed except PW-13. Learned LAC for the accused argued that on the contrary PW-15 has stated that accused was driving the vehicle properly. He further argued that the accused, while trying to save another car, had applied the brakes and that there was no negligence on the part of the accused and Sections 279/338 IPC are not proved against the accused.
7. Issue: - Having perused the material and evidence placed on record during trial and arguments advanced on behalf of all the parties, the following legal point(s) emerge for determination: -
CR No. 1526/2016 4i. Whether the accused was driving the vehicle in question on the public way in a manner so rash or negligent manner as to endanger human life, or to be likely to cause hurt or injury to any other person? and ii. Whether the accused caused simple injury to several passengers and grievous injury to PW-3 and PW-7 by driving the vehicle in question rashly or negligently as to endanger human life, or the personal safety of others?
8. Brief Facts: - The case of the prosecution, as detailed in the statement of complainant/PW-3 (Exhibit PW-3/A), is that on 24.03.2010, the complainant/PW-3 and some of his neighbours had hired a private tempo Tata 407, bearing no. DL 1LB 6217 (hereinafter referred to as, "tempo/vehicle in question"), to visit Gufa Temple at Preet Vihar. There were around 25-30 persons including some women and children. After visiting the temple, everyone sat inside said vehicle and were going towards Karkari Mod flyover. The driver of the tempo was driving the vehicle in speed and in a negligent manner and the passengers had requested the driver to drive slowly, despite which, the driver continued to drive in speed and in a negligent manner. At around 7.00 am in the morning, as soon as the said vehicle reached Karkari flyover, going towards Shahdara, and came down the flyover, suddenly the driver applied the brakes because of which the tempo lost balance and overturned, and all the passengers were hurt. The name of driver was Lal Singh, son of Shodan Singh, resident of H. No. 63/64, Gali No. 13, Vishwas Nagar, Shahdara, Delhi.
9. Analysis of Evidence/Reasons for findings: -Some facts have not been CR No. 1526/2016 5 disputed by the accused. Firstly, it is not in dispute that on 24.03.2010 the accused was driving the vehicle in question i.e., TATA 407 bearing no. DL- ILB-6217. Secondly, it is not dispute that on the said day, the accused had been hired to take several passengers in the said vehicle to visit Gufa Mandir at Preet Vihar. Thirdly, it is not dispute that when the accused was returning with the passengers in the said vehicle, the vehicle had an accident at around 07:00am at Karkari Mod flyover. Fourthly, it is not in dispute that the said vehicle had overturned because of which the passengers had suffered injuries. The above said facts have been deposed in evidence by all the eyewitnesses and is also the version of the accused. Lastly, it also does not seem to be disputed that the accused had applied the brakes of the vehicle of question because of which the vehicle had lost balance and overturned. The accused during his examination under Section 313 of CrPC has stated that he was driving the vehicle at a speed of around 20-25kmph and that a speeding vehicle had come from the front side and to save the tempo/vehicle in question from the speeding vehicle, the accused had applied brakes because of which the tempo had lost balance and overturned.
10.It is to be only ascertained whether the accused was driving the said vehicle in question on the said day in a rash and/or negligent manner, thereby causing the accident. PW-3 has specifically alleged in Exhibit PW-3/A that the accused was driving the vehicle in question in speed in a rash and negligent manner and the accused had suddenly applied brakes in force because of which the vehicle overturned causing injuries to the passengers. PW-3/Mahipal had stepped into the witness box and party tendered his examination-in-chief, however, thereafter, PW-3 was untraceable because of which his evidence could not be completed. Therefore, the statement, Exhibit PW-3/A, remains unproved. Other than PW-3, the prosecution has examined CR No. 1526/2016 6 ten other eyewitnesses to the alleged accident.
11.All the ten eyewitnesses have been cross-examined on behalf of the prosecution on ground that they were resiling from their former statements recorded under Section 161 of CrPC or were not disclosing the complete facts. During their examination-in-chief, only PW-2, PW-4, PW-5, PW-6, PW-7, and PW-8 were 'confronted' with their former statements recorded by the police under Section 161 of CrPC. Even though the said witnesses were confronted with some portion(s) of their said former statements, it cannot be stated that their previous statements were duly proved or that the witnesses were contradicted in the manner provided in Section 145 of Indian Evidence Act, 1872 (for short, "Evidence Act"). Attention here is drawn to Section 161 (1) of CrPC, which reads as, " (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination." A statement recorded by a police officer/I.O. must be duly proved and can be used for CR No. 1526/2016 7 contradiction only in the manner provided by Section 145 of Evidence Act. Section 145 of Evidence Act reads as, "A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
12.Reference here also is made to the decision of the Hon'ble Supreme Court in V. K. Mishra & Anr., v. State of Uttarakhand & Anr., (2015) 9 SCC 588., where the manner a witness is to be contradicted with his previous statement has been explained at paragraph no. 18, which is reproduced as follows: -
"18. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross- examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of CR No. 1526/2016 8 contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction."
13.PW-2, PW-4, PW-5, PW-6, PW-7, and PW-8 have not been contradicted with their previous statements in accordance with Section 161 of CrPC read with Section 145 of Evidence Act. They were confronted with their previous statements by merely recording, 'confronted with statement where is/not so recorded'. Their attention was not specifically drawn to the portions in their previous statements intended for contradiction. The said witnesses have also neither admitted nor denied their previous statements. Therefore, neither the previous statements can be admitted as proved nor used for contradiction by the prosecution or the defence. The evidence of PW-2, PW-4, PW-5, PW-6, PW-7, and PW-8 is to be analyzed without considering their former statements (confronted) recorded by the police.
14.Out of the ten eyewitnesses examined by the prosecution, four of them i.e., PW-4, PW-5, PW-10, and PW-13 have all admitted that the accused had suddenly applied brakes of the vehicle in question because of which the vehicle had overturned, while denying the suggestion that the accused was driving the tempo in high speed and in a rash and negligent manner. PW-8, who was a minor at the time of the accident, could not recollect anything CR No. 1526/2016 9 about the accident despite having been given the opportunity to refresh his memory. However, during his cross-examination on behalf of the prosecution, PW-8 has admitted that at the time of the accident, he was in a private tempo and that there were 25-30 persons in the tempo and that they were returning after visiting gufa wala mandir at Preet Vihar. He also admitted that the tempo was coming down the Karkari Mod flyover and was in high speed and that the tempo had overturned. At the same time, PW- 8 was unable to say whether the tempo driver had suddenly applied the brakes or whether the tempo had overturned due to fault of the driver of the tempo or because the tempo driver was driving the tempo in a rash and negligent manner. Learned Advocate for the accused has argued that as the witness turned hostile, his testimony cannot be relied upon. It is not disputed that the said witness was only a minor aged 13 years at the time of the accident. It is also not disputed that the PW-8 was one of the passengers in the vehicle in question, who had also suffered injury. It is important to note that the MLCs and x-ray reports of all the passengers has not been disputed by the accused. As the said witness was only aged 13 years at the time of the accident, it is quite possible that PW-8 was unable to recollect or state all the facts of the accident. Being a child amongst several adult persons/passengers, it is unlikely that at that time he would have even noticed the face of the tempo driver or been able to comprehend any fault of the tempo driver or that the tempo was being driven negligently/rashly or that the brakes were applied suddenly. There is no reason to wholly discard the testimony of PW-8. PW-8 has not been cross-examined on behalf of the accused meaning thereby the accused has not disputed that the vehicle in question was being driven in speed. The said testimony of PW-8 has been corroborated by the testimony of PW-13.
CR No. 1526/2016 1015.PW-13 has during his cross-examination by the prosecution admitted that the accused was driving the vehicle in question in high speed and had suddenly applied brakes because of which the vehicle in question had turned turtle and the passengers had suffered injuries. Again, the said witness has not been cross-examined on behalf of the accused, meaning thereby that the accused does not dispute that the vehicle in question was in high speed when he had applied the brakes because of which the vehicle had overturned.
16.PW-2 has admitted during her cross-examination by the prosecution that the accident had occurred when the vehicle TATA 407 was coming down the Karkari Mod flyover and the said vehicle had turned turtle. It is pertinent to note that in her examination-in-chief she has stated that she did not know how the vehicle had overturned, however, at the same time in her said cross- examination she has denied the suggestion that accident had occurred due to the negligence of the accused as he had suddenly applied brakes on which the tempo had overturned. PW-2 has admitted that the accused was known to her. Her said contrary statement and the fact that the accused was known to her, indicates that the witness may not have disclosed the complete facts. Therefore, her testimony is not wholly reliable or wholly unreliable.
17.PW-7 was initially unable to disclose anything about the incident and was given time to refresh his memory. After refreshing his memory, PW-7 is the only witness, who has stated a completely new version that a small tempo was being driven by the accused and while the accused was trying to save another car, he had turned his tempo and the tempo had overturned. PW-7 was cross-examined on behalf of the prosecution and having admitted that the accident had taken place on 24.03.2010, failed to identify the accused as the person driving the tempo stating that he had not seen the driver. PW-7 CR No. 1526/2016 11 has denied the suggestion that the tempo was at high speed or that the tempo had overturned due to the fault of the driver or due to negligent and rash driving. It is interesting to note that on one hand, PW-7 in his examination- in-chief has vaguely stated that the accused had turned the tempo while trying to save another car and the tempo had overturned, while on the other hand, he was unable to say whether the tempo driver had applied the brakes of the tempo suddenly. Evidently, PW-7 has not explained in his examination-in-chief how the tempo had overturned. Merely turning the tempo towards one side to avoid another car, without the car being in high speed or without suddenly applying the brakes, would not have caused the tempo to overturn. PW-7 also denied the suggestion that the accused was known to him. PW-7 seems to have deliberately attempted to conceal all facts and has given evasive answers. Therefore, his testimony is not reliable.
18.PW-15 has stated in his examination-in-chief that he with other persons were travelling in TATA 407 driven by the accused and while they were returning from gufa mandir suddenly the tempo overturned. During his cross- examination on behalf of the prosecution, PW-15 having denied the suggestion that the accused was driving the tempo at high speed at the time of the accident and that he had suddenly applied brakes because of which the tempo overturned has clarified the said suggestion by adding that the accused was driving properly. PW-15 in his examination-in-chief has admitted that the tempo had suddenly overturned, however, he has not explained how the tempo suddenly overturned. He has denied it was the fault of the driver that the tempo overturned, however, it is also not the case of PW-15 that on account of some other person/circumstances the tempo had overturned. It is unlikely that the tempo overturned on its own. Evidently, PW-15 has deliberately not disclosed the complete facts. Therefore, his CR No. 1526/2016 12 testimony is also not reliable. Lastly, PW-6 and PW-14 having admitted that in the year 2010 they were with other persons on a tempo driven by the accused, which had suddenly overturned, could not recollect whether the accused had suddenly applied brakes due to which the tempo had turned over or whether the accused was driving the tempo in high speed in a rash and negligent manner. Therefore, their testimonies neither support the prosecution version or the defence.
19.On analysis of the above evidence, it has come on record and proved that the accused was driving the vehicle in question in speed, while it was coming down the Karkari flyover, and had suddenly applied brakes because of which the vehicle had overturned. The accused was aware that he was carrying several passengers on the vehicle in question. The vehicle in question is not even a passenger's vehicle but a commercial vehicle for carrying light goods. The fact that the accused was driving down the flyover with more than twenty passengers, the accused had a duty to drive at a slow speed, which duty the accused failed to discharge. If such a vehicle coming down a flyover is in high speed and there is any distraction on the road, sudden application of brakes would certainly cause such vehicle to go out of control and topple. If the version of the accused is to be believed that he was driving the vehicle in question at a speed of 20-25kmph, it is unlikely that if he suddenly applied brakes because of another car that the vehicle would topple over. Even otherwise, the said defence of the accused was not put to any of the witnesses during their evidence.
20.It is also not the case of the defence that the vehicle in question had not suffered much damage. As per mechanical inspection report of the vehicle in question, Exhibit PW-16/C, the right side had been damaged and even the CR No. 1526/2016 13 front windscreen glass had been broken, which only confirms that the vehicle would have been in speed and had halted suddenly causing the vehicle to overturn with immense force resulting in rather much damage to it. There was not a single passenger, who had not suffered injury. Two passengers had even admittedly suffered grievous injury. Nothing adverse has come on record in the evidence of the police officials. The prosecution has been able to show that the accused was driving the vehicle in question in speed/rashly and negligently endangering the life and safety of others thereby causing the accident.
21.Finding: - From the above analysis, the Court is of the view that the prosecution has discharged the burden on them to prove the case against the accused beyond all reasonable doubt. Accordingly, the accused stands convicted of the offences punishable under Sections 279 and 338 of IPC.
Pronounced in Open Court Today on Twenty Ninth day of November of the year Two Thousand and Twenty-Two.
Digitally signed (SALONI SINGH)
by SALONI
SALONI SINGH ACMM/East,
Karkardooma Courts, Delhi.
SINGH Date:
2022.11.29
04:51:38 +0530
CR No. 1526/2016 14