Delhi District Court
Jai Prakash Madan vs The State on 13 March, 2015
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
ID No. 02403R0242092014
Criminal Appeal No. 53/14
Jai Prakash Madan
S/o Sh. Dharam Chand Madan,
R/o Flat No. 529, Brij Vihar,
Ghaziabad (U.P.)
............Appellant
Versus
The State
(NCT of Delhi)
...........Respondent
Date of institution of the : 18.12.2014
Date when the reserved for Judgment : 12.03.2015
Date of announcement of Judgment : 13.03.2015
JUDGEMENT
1. This appeal has been filed against the impugned orders dated 03.11.2014 and 24.11.2014 by which the Ld. Trial Court convicted the appellant for the offences punishable under sections 279 and 304A of the Indian Penal Code (hereinafter referred to as the IPC) and sentenced him to undergo simple imprisonment for six months with fine of Rs.5,000/- and in default of payment of fine to undergo SI for one day.
2. Brief facts leading to filing of present appeal are that as per the of the prosecution the appellant was driving an RTV bearing registration no. DL-1VA-1067 on the morning of 04.08.2008. The said Jai Prakash Madan vs. State CA No. 53/14 1/9 vehicle was going towards Connaught Place from Indirapuram and on the way turned towards Bhairon Road. The appellant was driving the said vehicle in a rash and negligent manner and in high speed. He drove the said vehicle in the service lane of Bhairon Road due to which the vehicle hit an unknown pedestrian who suffered severe injuries on his head and died to the same.
3. DD No.8A Ex.PW2/A was recorded in PS Tilak Marg on the basis of information received through HC Raj Kumar that one person had been run over by the said vehicle and had died. DD No. 8A was assigned to SI Jai Singh PW2 for investigation. PW2 proceeded to the spot of the accident along with Ct Subhash Singh PW8 and found a dead body of a child lying on the road and the vehicle in question along with the appellant present. Ct Balbir Singh PW6 also reached the place of the accident with a dead body bag and a digital camera and took photographs of the place of the incident Ex.P1 (colly.). The body of the deceased was taken to RML Hospital by PW2 where he was declared brought dead vide MLC Ex.PW2/B. Thereafter, PW2 came back to the spot of the accident and prepared the rukka Ex.PW2/C on the basis of which PW6 got the FIR Ex.PW2/E registered. Site plan Ex.PW2/D was prepared at the spot. The offending vehicle was seized and the appellant arrested. The accident was witnessed by Ramesh Joshi PW1 who was a passenger of the said vehicle and whose statement was recorded by the IO.
4. Upon completion of investigation, charge-sheet was filed against the appellant. By order dated 21.08.2009, the Ld. Trial Court framed charges against the appellant under Sections 279/304A IPC to which he pleaded not guilty and claimed trial. In all the prosecution Jai Prakash Madan vs. State CA No. 53/14 2/9 examined ten witnesses. Ramesh Joshi, eye-witness was examined as PW1, IO SI Jai Singh was examined as PW2, Rajman and Rakesh Kumar Pandey, brothers of the deceased who identified his dead body were examined as PW3 and PW9 respectively, Mukesh Kumar, Record Clerk who proved the postmortem report prepared by Dr. Subhash Chander was examined as PW4, Mechanical Inspection Report of the vehicle was prepared by PW5 Devender Kumar, Ct Balbir Singh who took the photographs and got the FIR registered was examined as PW6, MLC of the deceased was prepared by PW7 Dr. Pawan Kumar, Ct Subhash Singh PW8 had accompanied the IO during course of investigation and PW10 was HC Jagdish Chand, the Duty Officer who recorded the FIR.
5. Upon closure of evidence of the prosecution, statement of the appellant was recorded under Section 313 of the Cr.P.C. in which he denied that any accident took place due to any rash and negligent driving on his part and claimed that he had been falsely implicated. He led evidence in defence and examined himself as DW1. In his examination in chief, he deposed that he was driving the offending vehicle on 04.08.2008 on the route Indirapuram to Connaught Place with 12-13 passengers. He deposed that when his vehicle reached Bhairon Mandir, service road, the same was crowded and all of a sudden a boy collided on the front left portion of his vehicle and fell down. He deposed that he got down of his vehicle and after sometime the police came and took him to PS Tilak Marg where he was made to sign several blank papers and subsequently, he came to know that he had been falsely implicated. In cross-examination, he deposed that Ramesh Chander Joshi PW1 was one of his passengers and that the incident took place in the service road of Bhairon Marg.
Jai Prakash Madan vs. State CA No. 53/14 3/9
6. By the impugned orders, the appellant has been convicted and sentenced as recorded above.
7. Before this Court, the Ld. counsel for the appellant had argued that PW1 admitted that he had gone to the police station on the next day of the occurrence and that no notice had been issued to him by the IO. He submitted that PW1 in his cross-examination deposed that he could not state anything about the position of the deceased on the road and that no other vehicle suffered damages or pedestrian injured in the accident. He submitted that the site plan prepared by PW2 was not at the instance of PW1 and the same therefore could not be relied upon. He submitted that no rashness or negligence on the part of the appellant had been proved by the prosecution beyond any reasonable doubt and the appellant was entitled to acquittal on these grounds. He relied upon the following law:-
(i) Shivanna versus State (2010) 15 SCC 91;
(ii) Alil Mollah V/s State of WB (1996) 5 SCC 369;
(iii) P. Rajappan V/s State of Kerala 1986 CRL LJ 511
(Kerala High Court)
(iv) Abdul Subhan V/s State (NCT of Delhi) 2006 VIII AD
(Delhi) 478
(v) Satish Kumar V/s State of Punjab 2014 (3) CCC
(HC) 424 (High Court of Punjab and Haryana)
(vi) State of Karnatak V/s Satish 1998 SCC (Cri.) 1508
(vii) Baijnath Singh V/s State of Bihar (1972) 2 SCC 264
8. On the other hand, Ld. Addl. PP for the State supported the impugned order. He submitted that there was no dispute that the deceased has suffered injuries from the vehicle being driven by the appellant as he himself as DW1 has deposed about this fact in his examination in chief. He submitted that the place of the incident i.e. Jai Prakash Madan vs. State CA No. 53/14 4/9 service road of Bhairon Road is also not in dispute as the same has also been admitted by the appellant. As regards, PW1 the appellant in cross- examination admitted that PW1 was his passenger. In these circumstances, the conviction of the appellant was perfectly justified.
9. I have heard counsels for the parties and have perused the record of the Ld. Trial Court.
10. The first submission of the appellant was that it was doubtful that PW1 was present on the spot as he had gone to the police station on the day following in the incident. It is to be seen that PW1 has deposed that he with his staff had booked the vehicle in question on a monthly basis for travelling from Indirapuram to Connaught Place and the he was on board on the vehicle on the date of the incident. In response to a specific question in cross-examination he has deposed that "it was correct I was daily passenger of the accused RTV on that time i.e. 4.8.2008 and I had been using the said RTV for the past one and half year". No suggestion was given to him that he was not on board on the said vehicle at the time of the incident. Further in cross- examination the appellant as DW1 admitted that PW1 was his passenger. Thus there was no dispute before the Ld. Trial Court that PW1 was not on the said vehicle at the time of the incident and the submission of the appellant before this Court to the contrary seems to be an afterthought and an attempt to build a new at the stage of appeal which cannot be permitted.
11. In respect of the other contention that PW1 went to the police station on the day following the incident, PW1 in his examination in chief has deposed that as he was getting late to reach his office, he Jai Prakash Madan vs. State CA No. 53/14 5/9 took an auto rikshaw from the place of the incident and went to his office and then went to the police station on 5.8.2008 and then identified the appellant. In cross-examination PW1 admitted that he had gone to the police station on 5.8.2008 and that his statement was not recorded by the IO on the spot. In this regard it is to be noted that it stands established that PW1 was present at the time of the incident. He has explained that as he was getting late for his office he left in an auto rikshaw and and went to the police station on the next day. There is no cross-examination of PW1 on this aspect, i.e. leaving for his office from the spot has he was getting late. Even otherwise, the explanation given by PW1 in this regard is natural and reasonable.
12. In regard to the contention about the site plan, PW2 SI Jai Singh, IO has deposed that when he reached the place of incident, he found the body of the deceased lying on the road, the vehicle in question and the appellant. PW6 Ct Balbir Singh had also reached the spot with a body bag and a digital camera from which he took photographs Ex.P1 (colly.) of the place of the incident. PW2 further deposed that he took the body of the deceased to the hospital with PW8 Ct Subhash and left PW6 at the spot. PW2 came back to the spot and then prepared a site plan Ex.PW2/D. No question has been put to PW2 about the site plan in his cross-examination. PW6 had taken the photographs of the spot. No question has been put to PW6 in respect of the photographs. Two of the photographs show the body of the deceased lying on the side of the road with the vehicle parked in front. The site plan Ex.PW2/D also reflects what is in the photographs. The appellant has not disputed the place of the incident. PW1 has already explained that he had to rush to his office and therefore, could come back to the police station to join the investigation only on the next day.
Jai Prakash Madan vs. State CA No. 53/14 6/9 In these circumstances, even if the site plan Ex.PW2/D has not been prepared at the instance of PW1, the same would affect the creditability of the of the prosecution.
13. It was submitted that PW1 in cross-examination has deposed that he was sitting behind the seat of the driver and could not say anything about the position of the deceased on the road at the time of the accident. Submission was made by the appellant that in the face of such evidence, no rashness or negligence on the part of the appellant was proved. In this regard, it is to be considered that admittedly the accident took place involving the vehicle being driven by the appellant. I say so because the appellant himself in his examination in chief as DW1 has deposed that a boy collided on the left side of his vehicle and fell on the road. The question is whether rashness and negligence on the part of the appellant could be stated to have been proved beyond reasonable doubt.
14. As per the appellant himself, he was plying the vehicle on a 'service road'. In other words, the vehicle was not plying on the main road. This is evident from the cross-examination of PW6 who in response to a specific question has deposed as under:-
"It is correct that the said accident occurred on service road which is going in front of Bhairon Mandir and it does not occurred on main road. The width of service road is less than main road and it is a congested road. It is correct that at that time some vehicles including all kinds of vehicles were on this service road. No other vehicle damages in this accident. It is correct that there are jhuggies on the said side of road and persons are residing in these jhuggies."
15. From the cross-examination of PW6 it is apparent that the Jai Prakash Madan vs. State CA No. 53/14 7/9 appellant was not plying the vehicle on the main road but on the service road. Service road is not meant for regular traffic and plying the vehicle on a service road when the main road is available is itself an act of rashness and negligence. Even if PW1 can be stated to not have actually witnessed from where the deceased came on the road, the same would not enure to the benefit of the appellant as his rashness is otherwise established by the fact that he was plying the vehicle on the service road. It is also to be kept in mind that the appellant himself as DW1 has deposed that the deceased suddenly collided on the front left side of his vehicle and fell on the road. In these facts and circumstances, the inference of rashness and negligence raised by Ld. Trial Court does not call for any interference.
16. As far as the law relied upon by the appellant are concerned, all of the them are distinguishable on facts as in the present case there is no dispute that the incident actually took place, that the appellant was plying the vehicle on the service road and PW1 has given a reasonable explanation as to why he could not join the investigation on the date of the incident itself.
17. I therefore do not see any reason to interfere in the findings of the Ld. Trial Court in the impugned orders. Appeal of the appellant is dismissed.
18. Bail bonds / surety bonds of the appellant stand cancelled. Accused / appellant be sent to judicial custody for completing his sentence as awarded by the Ld. MM vide order on sentence dated 24.11.2014 i.e. to undergo simple imprisonment for six months with fine of Rs.5,000/- and in default of payment of fine to undergo SI for one Jai Prakash Madan vs. State CA No. 53/14 8/9 day. Fine has already been deposited by the appellant. Benefit of 428 Cr.P.C., if any, be given to appellant / accused.
19. TCR be sent back alongwith copy of this judgment. Copy of this judgment be given to the accused / appellant free of cost.
20. Appeal file be consigned to record room.
Announced in the open court (REETESH SINGH) on 13th March, 2015 ASJ-02/FTC, PHC/NDD 13.03.2015 Jai Prakash Madan vs. State CA No. 53/14 9/9