Delhi District Court
) That On 18.07.2010 At 11.15 Pm At Mg Road vs Unknown on 23 August, 2013
IN THE COURT OF MS. PURVA SAREEN,
METROPOLITAN MAGISTRATE01, SOUTH, SAKET, NEW DELHI
State v. Abdul Mazid etc.
FIR No.154/10
PS Fatehpur Beri
U/s 279/304A IPC
JUDGMENT
Date of Institution : 09.09.2010
Date of Commission of offence : 18.07.2010
Name of the complainant : Naveen Singh s/o Sh.Prem Singh
Name & address of the accused :(i)Abdul Mazid S/o Sh. Kamal Khan
R/o Village Teu Khas PS Kot Kassim
Post Bhonkar, Distt. Alwar, Rajasthan
(ii)Bihari Das S/o Sh.Chhotte Lal
R/o H.No.526B 5 & 6, Bandhu
Camp, JJ Colony, Vasant Kunj, Delhi
Offence complained of : U/s 279/304A IPC
Plea of accused : Pleaded not guilty
Final Order : Accused Abdul Mazid convicted
(U/s 279/304A IPC)
Accused Bihari Das Acquitted
Date of reserve for judgment : 21.08.2013
Date of announcing of judgment : 23.08.2013
Vide virtue of this judgment I propose to dispose off the case u/s 279/304A IPC.
In brief the case of prosecution is as under:
State v. Abdul Mazid etc Page 1
FIR No.154/10 PS FP Beri
1) That on 18.07.2010 at 11.15 pm at MG Road, in front of Pillar No.103, New Delhi within the jurisdiction of PS FP Beri accused Abdul Mazid was driving the vehicle bearing no.HR38E1419 and accused Bihari Das was driving truck bearing no.HR38F6819 in a rash and negligent manner so as to endanger human life and personal safety of others and while so driving accused Abdul Mazid hit the above said vehicle against pedestrian Krishan Kumar from back side which caused into his death and thereby committed an offence punishable u/s 279/304A IPC.
2) The charge sheet was filed against the accused in the court. Documents were supplied to the accused persons and thereafter notice was served upon the accused persons u/s 279/304A IPC to which they pleaded not guilty and claimed trial.
3) In order to prove the charge against the accused, the prosecution examined 14 witnesses as under : (I) PW1 Navin Singh deposed before the court that on 18.07.2010 at about 11.15 pm he along with Kishan Kumar, Ram Kamal, Gorli Chiranjivi and Phool Singh were going towards Ghitorni from Sultanput Depot on foot. When they reached at pillar no.103 one Tata 709 bearing no.HR38E1419 coming from Sultanpur towards Ghitorni hit Kishan Kumar from behind and he fell down on the road. The said truck was being driven by Abdul Mazid in a rash and negligent manner. In the meanwhile one truck bearing no.HR38F6819 coming from Sultanpur State v. Abdul Mazid etc Page 2 FIR No.154/10 PS FP Beri Depot side hit the said Tata 709 from behind due to which Tata 709 over turned. The driver of the truck bearing no.HR38F6819 ran away from the spot. Phool Singh called 100 number and police came to the spot and shifted the injured to Fortis Hospital. Witness further stated that IO recorded his statement at hospital. He along with IO returned at the spot. IO prepared site plan at his instance. Documents pertaining to Tata 709 were seized. Accused was arrested and his personal search was conducted by IO. Offending vehicle i.e. Tata 709 was seized.
In his cross examination by ld. APP for the state it is denied by witness that he had seen the driver of truck no.HR38F6819 on the spot or that driver was identified by him in the presence of IO at Patiala House Court. Witness denied that he intentionally was not identifying the accused Bihari Das.
In his cross examination by ld. Defence counsel for accused Mazid it is denied by witness that the number of vehicle was informed by IO to him.
Accused Bihari Das did not prefer to cross examine the witness.
(II) PW2 Ram Kamal deposed before the court that on 19.07.2010 at about 11.15 pm he along with Kishan Kumar, Naveen, Gorli Chiranjivi and Phool Singh were going towards Ghitorni from Sultanput Depot on foot. When they reached at pillar no.103 one Tata 709 bearing no.HR38E1419 coming from Sultanpur towards Ghitorni hit Kishan Kumar from behind and he fell down on the road. He sustained injury State v. Abdul Mazid etc Page 3 FIR No.154/10 PS FP Beri on the neck. The said truck was being driven by Abdul Mazid in a rash and negligent manner. In the meanwhile one truck coming from Sultanpur Depot side hit the said Tata 709 from behind due to which Tata 709 over turned. The driver of the said truck ran away from the spot. Phool Singh called 100 number and police came to the spot and shifted the injured to Fortis Hospital with Naveen and Phool Singh. He remained at the spot. Witness further stated that IO recorded his statement and he was discharged.
In his cross examination by Ld. APP for the state it is denied by witness that he had seen the driver of truck bearing no.HR38F6819 on the spot. It is denied by witness that he intentionally not identifying the accused Bihari Das.
In his cross examination by Ld. Defence counsel for accused Abdul Mazid it is denied by witness that he is deposing falsely at the instance of IO or that the number of vehicle was informed to him by IO.
Accused Bihari Das did not prefer to cross examine the witness.
(III) PW3 Rameshwar deposed before the court that he is registered owner of the truck bearing no.HR38F6819. However, the said truck was sold by his sons Devender and Jitender to one Girish Lohiya.
In his cross examination by ld. APP for the state it is stated by witness that notice u/s 133 MV Act bears his signature. It is denied by witness that in reply u/s 133 MV Act he stated that accused Bihari Das was driving the said truck on the date of incident. Witness stated that State v. Abdul Mazid etc Page 4 FIR No.154/10 PS FP Beri he is illiterate and the reply was signed by him at the instance of IO.
In his cross examination by Ld. Defence counsel for accused Abdul Majid it is stated by witness that he did not remember when truck had been sold. Witness further stated that he did not know anything about the accident.
Accused Bihari Das did not prefer to cross examine the witness.
(IV) PW4 Phool Singh deposed before the court that on 19.07.2010 at about 11.15 pm he along with Kishan Kumar, Ram Kamal,, Gorli Chiranjivi and Naveen Singh were going towards Ghitorni from Sultanput Depot on foot. When they reached at pillar no.103 one Tata 709 bearing no.HR38E1419 coming from Sultanpur towards Ghitorni hit Kishan Kumar from behind and he fell down on the road. He sustained injury on his back bone. The said truck was being driven by Abdul Majid in a rash and negligent manner. In the meanwhile one truck coming from Sultanpur Depot side hit the said Tata 709 from behind due to which Tata 709 over turned. The driver of the said truck ran away from the spot. He called 100 number and police came to the spot and shifted the injured to Fortis Hospital. IO recorded the statement of Naveen as complaint in hospital.
In his cross examination by Ld. APP for the state it is admitted by witness that the number of the truck was HR38F6819. He denied that he had seen the driver of the truck or Bihari Das driving the said truck. It is denied by witness that he intentionally not identifying the accused State v. Abdul Mazid etc Page 5 FIR No.154/10 PS FP Beri Bihari Das.
In his cross examination by ld. Defence counsel for accused Abdul Majid it is admitted by witness that accident took place in front of him. The vehicle no.6819 did not hit any person but collided with Tata 709. It is denied that vehicle Tata 709 was stationary at the road or that accident was not caused by it. It is denied that deceased was hit by vehicle no.6819.
Accused Bihari Das did not prefer to cross examine the witness.
(V) PW5 Chiranjeevi Gorle deposed before the court that on 19.07.2010 at about 11.15 pm he along with Kishan Kumar, Ram Kamal,, Phool Singh and Naveen Singh were going towards Ghitorni from Sultanput Depot on foot. When they reached at pillar no.103 one Tata 709 bearing no.HR38E1419 coming from Sultanpur towards Ghitorni hit Kishan Kumar from behind and he fell down on the road. He sustained injury on his back bone. The said truck was being driven by Abdul Majid in a rash and negligent manner. In the meanwhile one Dumper bearing no.HR38F6819 coming from Sultanpur Depot side hit the said Tata 709 from behind due to which Tata 709 over turned. The driver of the said truck ran away from the spot. Naveen Singh called 100 number and police came to the spot and shifted the injured to Fortis Hospital. IO recorded the statement of Naveen as complaint in hospital.
In his cross examination by Ld. APP for the state it is denied by witness that he had seen the driver of the truck no.HR38F6819 on the State v. Abdul Mazid etc Page 6 FIR No.154/10 PS FP Beri spot. It is denied that accused Bihari Das was driving the said truck. It is denied by witness that he intentionally was not identifying the accused Bihari Das.
In his cross examination by ld. Defence counsel for accused Abdul Majid it is admitted by witness that they all were walking together. It is denied that deceased was not hit by Tata 709. The vehicle no.6819 did not hit any person but collided with Tata 709. It is denied that vehicle Tata 709 hit the deceased after colliding with vehicle no.6819. It is denied that vehicle Tata 709 was stationary at the road.
Accused Bihari Das did not prefer to cross examine the witness.
(VI) PW6 Neeraj Sharma was Medical Record Officer and proved the MLC No.1023 dt.18.07.2010 and death certificate of deceased Krishan Kumar, prepared by Dr.Elizabeth Reme.
Accused persons did not prefer to cross examine the witness.
(VII) PW7 Balbir Singh identified the dead body of the deceased Krishan Kumar at AIIMS mortuary vide memo Ex.PW7/A. Accused persons did not prefer to cross examine the witness.
(VIII) PW8 Ved Prakash also identified the dead body of the deceased Krishan Kumar at AIIMS mortuary vide memo Ex.PW8/A. Accused persons did not prefer to cross examine the witness.
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(IX) PW9 T.U.Siddiqui was Mechanical Inspector who submitted and proved his report vide memo Ex.PW9/A and Ex.PW9/B. Accused persons did not prefer to cross examine the witness.
(X) PW10 Ct. Ashok Pal deposed before the court that on 18/19.07.2010 at about 11 pm on receipt of DD No.39A he along with HC Surender went to the spot at MG Road where tempo Tata 709 bearing no.HR38E1419 found lying upside down in accidental condition and driver of vehicle namely Abdul Majid had been apprehended by public persons. Injured was already taken to hospital. HC Surender left him at the spot and went to hospital. He returned back after sometime and also found a truck No.HR38F6819 in accidental condition near pillar no.156. IO prepared tehrir and got the FIR registered through him. He came back at the spot after registration of FIR and handed over original rukka and copy of FIR to IO. IO seized both the vehicles and relevant documents. DL of accused Abdul Majid was also seized. Accused Abdul Majid was arrested and his personal search was conducted. On 19.07.2010 IO received information regarding death of Krishan Kumar. He along with IO went to hospital and the dead body of deceased was shifted to AIIMS. Postmortem was got conducted by IO. Thereafter, dead body was handed over to relatives. IO recorded his statement.
In his cross examination by ld. Defence counsel for accused Bihari Das it is stated by witness that accused Bihari Das was not arrested in State v. Abdul Mazid etc Page 8 FIR No.154/10 PS FP Beri his presence and he cannot say as to who was driving the vehicle bearing no.HR38F6819.
Cross examination of witness on behalf of accused Abdul Majid was deferred but thereafter, witness could not be cross examined on behalf of accused Abdul Majid.
(XI) PW11 Suresh Bairwa deposed before the court that on 19.07.2010 at about 11.15 pm he along with Kishan Kumar, Naveen, Gorli Chiranjeevi, Rama Kamal and Phool Singh were going towards Ghitorni from Sultanput Depot on foot. When they reached at pillar no.103 one Tata 709 bearing no.HR38E1419 coming from Sultanpur towards Ghitorni in fast speed hit Kishan Kumar from behind and he fell down on the road and sustained injuries. In the meanwhile one Dumper bearing no.HR38F6819 coming from Sultanpur Depot side at a very fast speed hit the said Tata 709 from behind due to which Tata 709 over turned. They apprehended the driver of truck Tata 709 present in the court. PCR Call was made. Injured was taken to Fortis Hospital. He remained at the spot. His statement was recorded. Witness did not identify the accused Bihari Das whether he was driving the vehicle bearing no.HR38F6819.
In his cross examination by ld. Defence counsel for accused Bihari Das it is admitted by witness that vehicle no.HR38F6819 did not hit the deceased Krishan Kumar.
Cross examination of witness on behalf of accused Abdul Majid State v. Abdul Mazid etc Page 9 FIR No.154/10 PS FP Beri was deferred but thereafter, witness could not be cross examined on behalf of accused Abdul Majid.
(XII) PW12 HC Bhanwar Lal was duty officer who proved the FIR vide memo Ex.PW12/A and endorsement vide memo Ex.PW12/B. In his cross examination by ld. Defence counsel for accused Abdul Majid it is stated by witness that it took around 15 minutes to prepare the FIR after receipt of rukka. Rukka was brought by Ct.Ashok Pal.
Accused Bihari Das adopted the same cross examination.
(XIII) PW13 Dr. Karthik Krishna proved the postmortem report of deceased Krishan Kumar vide memo Ex.PW13/A. In his cross examination by ld. Defence counsel for accused Abdul Majid it is stated by witness that it can be possible that injures would have been much more then the ones specified in the report had the vehicle hit the deceased with a very high speed.
Accused Bihari Das adopted the same cross examination.
(XIV) PW14 IO ASI Surender Kumar deposed before the court that on 18.07.2010 on receipt of DD No.39A he along with Ct. Ashok Pal went to the spot at MG Road where tempo Tata 709 bearing no.HR38E1419 was found lying overturned condition and driver of vehicle namely Abdul Majid had been apprehended by one eye witness Suresh Chand. Meanwhile on receipt of DD No.5A he went to Fortis Hospital leaving State v. Abdul Mazid etc Page 10 FIR No.154/10 PS FP Beri Ct.Ashok Pal at the spot. Injured was declared unfit for statement. Eye witness Naveen was found at hospital whose statement was recorded as complaint. Thereafter, he came back to spot and got the FIR registered through Ct. Ashok. He returned back after registration of FIR and handed over original rukka and copy of FIR to him. One truck No.HR38F6819 was also found in accidental condition near pillar no. 156 at the distance of 400 to 500 meter from the place of occurrence. Both the vehicles and its relevant documents were seized. DL of accused Abdul Majid was also seized.
On 04.08.2010 notice u/s 133 MV Act was given to the owner of the offending truck and on the same day owner produced driver Bihari Das in PS. Accused Bihari Das was arrested and his personal search was conducted. DL of accused Bihari Das was also seized. Both the vehicles were got mechanically inspected. Injured was declared dead by concerned doctor. Postmortem was got conducted and report was collected. Dead body was handed over to relatives. Statement of witness were recorded. After completion of investigation challan was prepared and filed before the court.
In his cross examination by ld. Counsel for accused Abdul Majid it is stated by witness that the driver of tempo was sitting inside the tempo which was in overturned condition. He reached at Fortis hospital on his scooter which is nearly 2 to 2.5 km after one and half hour of accident. Suresh Chand Berwa and his friends met at the spot. His statement was not recorded at the spot. Statement of complainant State v. Abdul Mazid etc Page 11 FIR No.154/10 PS FP Beri Naveen Kumar was recorded at hospital at around 1.30 pm to 1.45 pm. No relative of injured was present in the hospital. On 19.07.2010 he came back at the spot at around 2.15 am and sent Ct.Ashok with rukka to PS. Site plan was prepared on 19.07.2010. Signature of Naveen Kumar were not obtained on the site plan. Witness further stated that he did not remember the exact number of witnesses whose statement were recorded during investigation. The overturned tempo and the truck were at the far distance from each other. The tempo was at the spot and truck was far ahead. The truck was standing near pillar no.
156. He had arrested the accused Abdul Majid around 5.15 am on the spot.
In his cross examination of ld. Counsel for accused Bihari Das it is admitted by witness that he did not see the accident happening. It is further admitted by witness that truck was found at around 500 to 600 meter away from the spot.
4) Thereafter PE was closed. Statement of accused was recorded to which accused pleaded innocence and examined DW1 Mohd. Ashruf in his defence who stated before the court that on 18.07.2010 he was sitting in truck TATA 709 bearing registration no.HR38E1419 being driven by the accused Abdul Mazid. At Ghitorini the accused driver had stopped the vehicle to attend the nature call and in the meantime, one Truck Dumper bearing no.HR38F6819 came from behind at a very high speed in a rash and negligent manner and hit the truck bearing State v. Abdul Mazid etc Page 12 FIR No.154/10 PS FP Beri no.HR38E1419 and in this manner the accident had caused and accused Abdul Mazid is innocent.
In his cross examination by ld. APP for the state it is stated by witness that deceased Kishan Kumar had died when the Truck Dumper bearing no.HR38F6819 had hit him. He is working as a helper with Abdul Mazid. Both of them has been employed by the company and company paid a salary to them. It is admitted by witness that due to the impact, their vehicle over turned and the Dumper coming from the back side slipped in the ditch. At that time he and Abdul Mazid were standing outside the vehicle and sustained no injury at all. The driver of the Dumper did also not sustained any injury.
5) Thereafter, DE was closed and arguments addressed. I have heard the arguments addressed by the prosecution and counsel for the accused. I have gone through the documents on record and heard the contention of both the parties.
6) The statements of PW1, PW2, PW3, PW4, PW5 and PW11 are corroborating as far as rashness driving and identity of accused Abdul Majid is concerned. As far as accused Abdul Majid is concerned all above witnesses failed to identify him.
7) It has been further argued by argued by ld. Counsel for accused Abdul Mazid that there are appearant contradictions between the statement of State v. Abdul Mazid etc Page 13 FIR No.154/10 PS FP Beri witnesses and it was Bihari Das who had hit the deceased and later on Tata 709 which was in stationary condition.
8) However, it has not been proved except he has produce one defence witness who is helper of the accused Abdul Mazid and is an interested witness.
9) In Vadivelu Thevar v. The State of Madras (1957 SCR 981) the Hon'ble Supreme Court is Court had divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. The first two categories they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. It is a sound and wellestablished rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely :
i) Wholly reliable.
ii) Wholly unreliable.
iii) Neither wholly reliable nor wholly unreliable.
10)In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or State v. Abdul Mazid etc Page 14 FIR No.154/10 PS FP Beri suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion.
It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.'
11)Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). The Hon'ble Supreme Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The timehonoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
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12)All the remaining witnesses whose testimony have been recorded in the court completely supported the prosecution case. There is no doubt in identity of the accused Abdul Mazid.
13)The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the case of S.N. Hussain v. State of Andhra Pradesh, AIR 1972 SC 685 as under :
"Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted".
14)It has been further observed in S.N. Hussain (Supra) as under:
"Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case".
15)In the case of Shakila Khader v. Nausher Gama, AIR 1975 SC 1324, it was observed by Hon'ble Supreme Court as under:
"In main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of State v. Abdul Mazid etc Page 16 FIR No.154/10 PS FP Beri the road, the density of the traffic and the attempt to overtake the other vehicle resulting in going to the wrong side of the road and being responsible for the accident."
16)Further in case of Paras Nath v. State of Delhi, 2004 Cr LJ 731 at 732 (del)., it was observed as under:
"Rashness or negligence can be determined from the manner in which the accident had taken place. Even the site plan prepared by the investigator which was exhibited as PW.... speaks about the negligence attributed to the petitioner".
17)As far as accused Abdul Mazid is concerned, both the facts i.e. (i) rashness and negligent driving and (ii) identity of accused has been proved by the statement of witnesses.
18)As far as accused Bihari Das is concerned, identity itself is disputed as per the statement of witnesses. Hence, there is no evidence/document on record to prove the rashness and negligent driving and identity of accused Bihari Das.
19)In view of the above discussion, I am of the opinion that prosecution has proved the guilt of the accused Abdul Mazid that he was driving the vehicle in rash and negligent manner. Accordingly the accused Abdul Mazid is held guilty and convicted for the offence punishable U/s State v. Abdul Mazid etc Page 17 FIR No.154/10 PS FP Beri 279/304A IPC.
20)As far as accused Bihari Das is concerned, he is acquitted for the alleged offence. His bail bond to remain in force for a period of one month u/s 437A CrPC.
The matter is now listed on point of sentence with respect to accused Abdul Mazid on 31.08.2013.
Announced in the open court (PURVA SAREEN)
on 23rd August 2013 METROPOLITAN MAGISTRATE01
SOUTH, SAKET COURTS, NEW DELHI
State v. Abdul Mazid etc Page 18
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