Delhi District Court
State vs Ajay Chawla on 26 February, 2011
IN THE COURT OF SH. SUMEDH KUMAR SETHI
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 213 of 1999
POLICE STATION: Tuglak Road.
U/S: 279/304 A IPC
IN THE MATTER OF
STATE
VS.
AJAY CHAWLA
S/o Mr. Ashok Chawla
R/o House No. 871 behind Laxmi Talkies,
Yamuna Nagar, District Jagadhari, Haryana
Date of institution:15.09.1999
Date of reserving judgement/Order:24.11.2010
Date of Pronouncement of Judgement/Order:26.02.2011
1.The brief facts of the case from the perspective of the prosecution are that on 04.08.1999 at about 12.30 PM infront of Kothi No. 15, Aurangzeb Road, the accused was driving a Tata Sumo bearing no. UP 07J 6900 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving the said vehicle in the aforesaid manner, the accused had struck against one scooter and caused the death of its driver Parveen Seth.
2. After the completion of investigation, chargesheet U/s 279/304A of the Indian Penal Code (hereinafter referred to as the IPC) was filed. Cognizance against the accused was taken by the Court and he was summoned. Vide separate notice given to him U/s 251 Cr. PC on 01.10.1999, the particulars of the offence STATE VS AJAY CHAWLA FIR NO.: 213 of 1999 POLICE STATION: Tuglak Road U/S: 279/304 A IPC 1 of 11 of which he was accused were be stated to him, to which he pleaded not guilty and claimed trial.
3. The prosecution in order to prove its case against accused examined 12 witnesses.
4. Mr. T.U. Siddiqui, MVI was examined as PW 1. He deposed that on 07.08.99, he mechanically inspected one LML Vespa scooter no. MP 07 7894 and one TATA Sumo No. UP 07J 6900 on the request of the IO and his reports in this regard are Ex. PW 1/A and Ex. PW 1/B respectively, which bear his signatures at Point A.
5. ASI Madan Singh was examined as PW 2. He deposed that on the relevant date, he was posted at PS Tuglak Road as Duty Officer. On that day at about 2:30 PM, he recorded FIR No. 213/99, carbon copy of the same is Ex. PW 2/A and bears his signature at Point A. (original was seen and returned). In his cross examination, he has stated that a rukka was brought to him by a DHG Constable which was sent by ASI Kishan Chand at 2:20 PM.
6. Ct. Rampal Singh was examined as PW 3. He deposed that on 04.09.99, he was posted at PS Tuglak Road. On that day he was on duty on Omni 60 from 8 AM to 6 PM. On the same day at about 12.30 noon, he was present near Kothi No. 15, Aurangzeb Road. He saw that one scooter bearing no. 7894, the complete number of which he did not remember was coming from the side of Claridges Hotel Chambri and was going towards Tuglak Road and one Tata Sumo No. UP 7J 77 something. Again said 6900. (At this stage witness attempted to see something written on the said summons, the said summons were kept on the file) came from behind at a very fast speed and hit the scooter from the backside. The scooterist fell down on the road and the witness took him to the hospital RML in the same Tata Sumo. The name of Tata Sumo driver was Ajay Chawla but the witness could not identify him at the time of his deposition as 3-4 years had elapsed by then. Police from the PS came in the hospital and the said Ajay STATE VS AJAY CHAWLA FIR NO.: 213 of 1999 POLICE STATION: Tuglak Road U/S: 279/304 A IPC 2 of 11 Chawla was handed over to SI Rajender Singh. Statement of the witness was recorded by him which is Ex. PW 3/A, bears signatures of the witness at Point A. The accident happened due to negligence of Tata Sumo driver. Ld. APP for the State sought permission to cross examine the witness. The same was allowed. PW 3 deposed in his cross examination by Ld APP for State that it was correct that the incident happened on 04.08.99. It was correct that accused present in the court that day was the person who was driving the Tata Sumo at the time of accident. It was correct that he did not read anything noted by him on the summons which he was carrying at the time of deposition. It was correct that he had deposed on the basis of his memory. He could not tell whether the police officer who he met in RML hospital was SI Rajender Singh or ASI Kishan Chand. He did not remember the number exactly even then. It was further correct that he did not remember the name of IO due to lapse of period of time the matter being four years old. PW 3 deposed in his cross examination by Defence Counsel that he had stayed in PS Tuglak Road on his posting for about 3 and half years upto the date of this accident. It was correct that he had good knowledge of the area near or around PS Tuglak Road. He explained that the distance between Claridges Hotel Chambri and Kothi No.15 Aurangzeb Road is about 10 yards. He testified that it was also correct that at that time, there was no Pan Shop by the side of Claridges Hotel, Aurangzeb Road. The distance between Kothi No.15 and PS Tuglak Road is 50-60 yards. It was correct that a watchman used to sit at the gate of Kothi No.15, Aurangzeb Road all the time. Watchmen also used to sit at the other kothis of Aurangzeb Road. There was moving traffic on Aurangzeb Road and people and vehicles were coming and going at the time of the incident. He denied the suggestion that he did not witness the accident or that he reached the spot afterwards and that is why he was not able to identify the accused or unable to give correct numbers of vehicles involved in the alleged accident. He also denied that he was deposing falsely being a police officer.
7. Dr. Pradeep Saxena was examined as PW 4. He deposed that on 04.08.99, he was posted as CMO, RML hospital. The patient Parveen Seth was brought to the casualty at about 12.50 pm with the alleged history of RTA and who was examined vide MLC No. 90094/99. On general examination the patient was STATE VS AJAY CHAWLA FIR NO.: 213 of 1999 POLICE STATION: Tuglak Road U/S: 279/304 A IPC 3 of 11 drowsy and responding to verbal commands and on local examination following injuries were noted (1) CLW 2 centimeter long at the back of the skull (2) bleeding from left ear (3) abrasions on left hand. With the provisional diagnosis of head injury the patient was given first aid and was referred to surgical emergency department SE-12 for further management/treatment. The witness stated that he prepared the MLC Ex. PW 4/A which bears his signature at Point A. In his cross examination, he stated that it was wrong to suggest that the injuries mentioned in the Ex. PW 4/A can be sustained by his own negligence.
8. Dr. Neeraj Gupta was examined as PW 5. PW 5 deposed in his examination in chief that his cousin Parveen Seth had met with an accident on 04.08.99 and he died on the same day at RML hospital. The witness identified his dead body vide memo Ex. PW 5/A and the dead body was handed over to them after post mortem vide receipt Ex. PW 5/B which bears his signature at Point A.
9. Mr. Daya Kishan Lehria was examined as PW 6. He deposed in his examination in chief that on 04.08.99, he was informed about the accident of his nephew Parveen Seth and he came to Delhi and he identified the dead body of his nephew Parveen Seth at RML hospital as he died on the same day vide identification memo Ex. PW 6/A and the dead body was handed over to them after postmortem vide receipt Ex. PW 5/B.
10. Mr. Virender Lehria was examined as PW 7. He deposed in his examination in chief that on 04.08.99, he was informed about the accident of his nephew Parveen Seth and he came to Delhi and identified the dead body of his nephew Parveen Seth at RML Hospital vide identification memo Ex. PW 7/A as he died on the same day and the dead body was handed over to them after postmortem vide receipt Ex. PW 5/B.
11. Mr. Mukesh Kumar was examined as PW 8. He deposed in his examination in chief that on 04.08.99, he was posted at PS Tuglak Road and on that day he alongwith Ct. Rampal were on duty on motorcycle Omni 60 from 8 AM to 6 PM for patrolling in police station area. At about 12.30 PM, when they STATE VS AJAY CHAWLA FIR NO.: 213 of 1999 POLICE STATION: Tuglak Road U/S: 279/304 A IPC 4 of 11 were on patrolling at Aurangzeb Road, the witness saw from the side of the Claridges Chambri, a scooter no. MP 07 7894 was going towards T. Road side and from the same side one TATA Sumo no. UP 07J 6900 was going. The TATA sumo first moved towards right side and then towards left side and then hit against the scooter. The scooterist fell down and the witness stopped the TATA sumo and lifted the injured and shifted the injured to hospital in the same TATA sumo and Ct. Rampal accompanied them. The witness remained at the spot and informed the PS. He stated that he can identify the TATA sumo driver, the witness pointed out towards the accused present in the court that day and correctly identified him. He testified that the TATA sumo driver was driving roughly and carelessly and it appeared as if nothing was moving ahead of him. The scooter driver was its own side and the accused was driving in careless manner and due to his negligent driving the accident took place. He deposed in his cross examination that Ct. Rampal was sitting on his motorcycle with him and he was the rider of the motorcycle. The witness gave the statement to the IO. It is incorrect that he had stated that Ct. Rampal was rider on the separate Omni. Vol. he was with the witness on the same Omni. It is correct that the scooterist was not wearing helmet while driving the scooter. It is wrong to suggest that the scooterist was driving the scooter in rash and negligent manner. It is further wrong to suggest that they both reached on separate motorcycles after the accident and they had not witnessed the accident. It is correct that there is kiosk of Panwardi at the back side of the Claridges Hotel boundary. It is correct that there is a service lane in between the boundary wall of Claridges Hotel and kiosk of Panwardri. After the accident 3/4 public persons collected at the spot but they were dispersed by the witness to avoid the traffic jam. It is wrong to suggest that public persons reached the spot before the arrival of the witness at the spot. It is wrong to suggest that the public persons told them and the IO that accident had taken place because of the rash and negligent driving of the scooterist. It is wrong to suggest that IO, the witness and Ct. Rampal had sent back the public persons who told them about the accident that had taken place due to negligence driving of the scooterist and did not make them witness. It is wrong to suggest that the accident had not taken place due to rash and negligent driving of the accused or that accused has been falsely implicated in this case because he STATE VS AJAY CHAWLA FIR NO.: 213 of 1999 POLICE STATION: Tuglak Road U/S: 279/304 A IPC 5 of 11 helped in removal of the injured to the hospital. He also stated that it is wrong to suggest that he was deposing falsely being a police official at the instance of the IO.
12. SI Jagdish Prasad was examined as PW 9. He deposed in his examination in chief that on 04.08.99, he was posted as Constable DO at PP RML hospital and on that day, one Parveen's MLC was collected and handed over to the IO by him during course of his official duty. The MLC Ex. PW 9/A bears his name at Point A.
13. SI Kishan Chand was examined as PW 10. PW 10 deposed in his examination in chief that on 04.08.99, he was posted as ASI PS T. Road and on that day on receipt of DD No. 7 A mark A, he alongwith Ct. Rajinder visited spot of occurrence at Kothi No. 15, Aurangzeb Road where Ct. Mukesh met him and scooter no. MP 07 7894 was lying in accidental condition and it was revealed that accident was caused by TATA Sumo No. UP 07J 6900 and Ct. Rampal had gone to RML alongwith driver of the Sumo and injured Parveen Seth. He deputed the Ct. Rajinder at spot and proceeded to RML where he collected MLC Ex. PW 9/A from ASI Jagdish. Injured was fit for statement. He returned to the spot and recorded statement of Rampal Singh Ex. PW 3/A and made endorsement Ex. PW 10/A and sent the same to PS for registration of FIR through Ct. Rajinder. He prepared site plan Ex. PW 10/B and recorded the statement of PWs prepared memos Ex. PW 10/C, Ex. PW 10/D of Tata Sumo and scooter and arrested the accused Ajay Chawla, who was identified by the witness in the Court vide his personal search memo Ex. PW 10/E. DL of accused was also seized vide Ex. PW 10/F and returned to the spot. Case property was deposited with MHCM and vehicles were got mechanically inspected. In the evening injured Parveen Seth succumbed to the injuries, postmortem on his body was got conducted, dead body was handed over to the relatives vide Ex. PW 5/D. Vehicles were released on superdari vide Ex. PW 10/G and Ex. PW 10/H. He completed the challan and presented the same for trial. He identified the accused present in Court. PW 10 deposed in his cross examination that it was correct that Hotel Claridges is situated in front of Kothi no. 15 A. It was also correct that service lane is also STATE VS AJAY CHAWLA FIR NO.: 213 of 1999 POLICE STATION: Tuglak Road U/S: 279/304 A IPC 6 of 11 there beside the boundary and there is a pan shop in between hotel Claridges. He had made inquires from owner of pan shop as well as the customers present there but nobody came forward to inform about the accident. He stated that it was wrong to suggest that pan shop owner and public persons present at shop had told him that this accident took place only because of negligence of deceased i.e. two wheeler rider. It was further wrong to suggest that he had not interrogated or not made them as witness in the present case for falsely implicating the accused in the present case. It is further wrong to suggest that Ct. Rampal and Ct. Mukesh had been wrongly joined as PWs in the present case or that they were not eye witnesses of the present case. It was also wrong to suggest that he had manipulated the present case in order to fix the accused. He said that it was wrong to suggest that he was deposing falsely.
14. Ct. Rajender Kumar was examined as PW 11. He deposed in his examination in chief that he did not remember the date of occurrence of the incident. He stated that he was dismissed from service four years back and did not remember anything about this case. He stated that he had been summoned and he knew he had been called for giving evidence in this case.
15. Dr. Vinay Kumar Singh was examined as PW 12. He testified that on 05.08.99, he was posted and working as SR, Lady Harding Medical College, Forensic Department. He conducted the postmortem on the body of Parveen Seth and prepared the detailed report no. 232/99. Same is exhibited as Ex. PW 12/A which bears his signature at Point A. In his opinion the cause of death was Cranio Cerebral damage consecutive upon blunt force impact. All injuries were antimortem in nature and of recent duration.
16. Statement of accused U/s 313 Cr. r/w 281 Cr. PC was recorded separately on 04.07.2006 wherein accused stated that the accident had taken place only due to negligence and rash driving of the deceased. He further stated that the deceased suddenly appeared from the side road from his right side while he was driving his Tata Sumo at normal speed on the main road i.e. Aurangzeb road. He was neither rash nor negligent while driving his Tata Sumo. He stated that he had STATE VS AJAY CHAWLA FIR NO.: 213 of 1999 POLICE STATION: Tuglak Road U/S: 279/304 A IPC 7 of 11 been falsely implicated in this case and he was innocent. He reiterated his version in his later statement recorded on 27.11.2009. Accused wanted to lead evidence in defence. However, vide order dated 18.08.2010, the submissions of the Counsel for accused were recorded to the effect that accused did not want to lead DE and at his request, DE was closed.
17. All concerned have been heard, including the final arguments led by Ld. APP for State as well as and Ld. Counsel for accused. Material on record has been perused and submissions considered.
18. Before deliberating further, it would be pertinent to discuss the provisions for the offences under which the accused has been charged:-
Section 279 - Rash driving or riding on a public way- Whoever drives any vehicle or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Ingredients of Section 279 is driving or riding any vehicle on a public way rashly or negligently.
Section 304 A of Indian Penal Code provides:
Causing death by negligence: Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
19. The prosecution has argued that the version of events as portrayed in the chargesheet, as well as the prosecution witnesses' testimony is true. It has been submitted that all the prosecution witnesses have corroborated each other. It has further been contended that some of the PWs have not STATE VS AJAY CHAWLA FIR NO.: 213 of 1999 POLICE STATION: Tuglak Road U/S: 279/304 A IPC 8 of 11 been cross examined by the defence, despite having the opportunity to do so. Thus, their testimony remains unopposed. In all, the prosecution has tried to make out a case against the accused for rash and negligent driving on a public way and pursuant to that causing death of the deceased by such negligence.
20. The learned counsel for the accused, on the other hand, has contended that there are various discrepancies in the testimonies of most of the prosecution witnesses. He further contends that PW3 and PW8 are the main witnesses who have allegedly seen the incident happen. Out of the two, it has been contended that PW3 has resiled from his statement made earlier and the same cannot be relied upon. PW3 has also denied the existence of a pan shop in the vicinity which PW8 has stated to be present. It has also been contended that as no member of the general public has been made a witness, thus it can be inferred that the alleged eye witnesses never witnessed the incident and came at the spot after the occurrence of the accident. It is important to mention here that as per the statement of the accused and also as submitted by the defence counsel during the course of arguments, the identity of the accused and the accident with the vehicle of the accused are not being disputed. Therefore, the sole contention of the defence is that the accident did not occur due to the negligence of the accused, but due to the fault of the deceased himself. It was also argued that the statement of the victim has not been recorded and this is injurious to the case of the prosecution. The prosecution has rebutted the said contentions.
21. It is pertinent to note that in this matter, it has been rightly pointed out by the defence that PW3 and 8 are the primary witnesses in the present case. It is also to be noted that PW3 has resiled from his earlier statement and thus his testimony cannot be relied upon. However, the testimony of PW8 remains unshaken. It has already been admitted on behalf of the accused that he is not disputing his identity and that he is also not disputing the fact that the accident involved the vehicle that he was driving. PW8 has categorically stated that the accused was driving the vehicle carelessly. This imputes rashness and negligence to the act of the accused due to the circumstances in which the incident occurred.
STATE VS AJAY CHAWLA FIR NO.: 213 of 1999 POLICE STATION: Tuglak Road U/S: 279/304 A IPC 9 of 11
Further, in this regard, it is noteworthy that the eye witness to the accident has clearly stated that the TATA sumo driver i.e. the accused was driving roughly and carelessly and it appeared as if nothing was moving ahead of him. The scooter driver was its own side and the accused was driving in careless manner and due to his negligent driving the accident took place. The testimony of PW8 stands unblemished. Thus, it may be taken as established that the accused was driving rashly and negligently. Moreover, the accused, while explaining incriminatory material against him, has stated that the deceased suddenly came on the 'right side' of the accused. If that had been the case then the car of the accused would have been damaged from its right side. However, the report of the mechanical inspector, Ex.PW1/B clearly shows that the vehicle of the accused was damaged from the left side, sustaining damage on the left side front bumper and left indicator. This punches a hole in the theory propounded by the accused and renders it impossible. Thus the ingredients of the offence under Section 279 are clearly made out against the accused.
22. As far as Section 304A is concerned, it has to be analysed whether the rashness or negligence of the accused can be taken as the cause of death of the deceased. This does not require much deliberation as it has already been brought on record that the accused has not disputed the fact that the vehicle driven by the deceased collided with the vehicle driven by the accused. It is also not disputed that the deceased fell as a result of the collision and died due to the injuries received upon falling. Over and above that, it has already been established in the foregoing paragraphs that the collision was a result of the rash and negligent act attributable to the accused. Thus, the only inference that can be drawn is that the the rash and negligent act of the accused caused the death of the deceased.
23. One of the defences raised on behalf the accused is that the deceased was not wearing a helmet and thus indulged in contributory negligence which is reason enough for the accused to escape indictment. The fact that the deceased was not wearing a helmet is brought out from the testimony of PW8 who is the most important witness of the case. In this regard, it must be pointed out that while contributory negligence is a defence in civil proceedings initiated for the STATE VS AJAY CHAWLA FIR NO.: 213 of 1999 POLICE STATION: Tuglak Road U/S: 279/304 A IPC 10 of 11 tort of negligence, it has no bearing on the guilt of the accused in respect of criminal negligence which is punishable under Section 279 and 304A of the IPC. The proposition is fortified by the view taken by the Hon'ble High Court of Delhi in Ram Karan vs. State (Delhi Administration) in Criminal Revision Petition No. 496 of 2001 decided on 04.12.2009, wherein it was held that:
"The rule of contributory negligence may be a good defence in a civil action but it has little place in an indictment for criminal negligence. Once it is established that the accused has caused the death of the person by his negligent act not amounting to culpable homicide, contributory negligence on the part of the deceased is irrelevant."
Thus, in view of the corpus of law discussed above, it can be concluded that the ingredients of the offence under Section 304A are also made out against the accused from the facts of the case.
24. In totality, the prosecution has been able to establish a strong case against the accused. In view of what has been discussed above, this Court finds merit in the prosecution's submissions and holds that the guilt of the accused Ajay Chawla has been established beyond reasonable doubt and the submissions made on behalf of the defence though thought provoking, are not of much help in the context of the present case. Thus, he is hereby convicted for having committed offence under Section 279 of the IPC and also for offence under Section 304A IPC. Let he be heard on the point of sentence separately.
(ANNOUNCED IN THE OPEN
COURT ON 26th February, 2011 )
This Judgment contains11 pages
and each paper is signed by me. SUMEDH KUMAR SETHI
METROPOLITAN MAGISTRATE
NEW DELHI DISTRICT
PATIALA HOUSE COURTS,DELHI
STATE VS AJAY CHAWLA
FIR NO.: 213 of 1999
POLICE STATION: Tuglak Road
U/S: 279/304 A IPC 11 of 11