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Delhi District Court

State vs . : Kailash Chand on 17 May, 2010

                 IN THE COURT OF SH. SHAILENDER MALIK:
                   METROPOLITAN MAGISTRATE (NORTH)
                        TIS HAZARI COURTS: DELHI


State Vs.    : Kailash Chand
FIR No       : 554/03
U/s          : 279/304-A IPC
P.S.         : Kashmere Gate

                                  JUDGMENT

 S.N.               Particulars                              Details
       1 Serial number of the case             : Not mentioned
       2 Date of commission of offence         : 15.11.03
       3 Date of institution of the case       : 03/07/04
       4 Name of the complainant               : Vineet Sharma, S/o            Sh.
                                                 Rajender Nath Sharma

5 Name of accused, parentage & : Kailash Chand S/o Sh. Puran Singh, R/o H.N o. 64, address Ambedkar Basti, Maujpur, Gali No.5, PS Bhajanpura, Delhi 6 Offence complained or proved : 279/304-A IPC 7 Plea of the accused : Pleaded not guilty 8 Final Order : Convicted 9 Date of reserve for order : 06/05/10 10 Date of final order : 17/05/10 Brief facts of the case:

1. Accused Kailash Chand S/o Sh. Durga Singh has been sent up to face trial for offence U/s 279/304A IPC. Factual matrix of the matter is that on 15.11.03 upon receipt of DD no. 26A regarding an accident. SI Ved Singh along with Ct. Balwan went to the spot of accident i.e. Hanuman Setu, Monkey Bridge, Ring Road where they found one bus bearing registration no. DL1P-A-0184 and one scooter bearing registration no. DL2S-J-8098 in accidental condition and one girl aged FIR No. 554/03 1 State V/s Kailash Chand about 22 years lying dead, whose head and chest was crushed. IO met with one witness namely, Vineet Sharma and recorded his statement, who has stated that he practices as Advocate in Tis Hazari Court Complex and on that day i.e. 15.11.03 he was coming from his house on his scooter bearing registration no. DL3S-Y-2167 via Ring Road to Tis Hazari and when while riding on that scooter he reached near Raj Ghat he also saw one lady driving a scooter bearing registration no. DL2S-J-

8098 by his side. Complainant further says that he and that lady scooterist when reached near monkey bridge Lal Quila railway pul at about 06.45 pm, one private bus bearing registration no. DL1P-A-0184 came from behind. Complainant stated that said bus was being driven in a very high speed and rashly and negligently. Complainant further states that said bus driver while immediately back on the lady scooterist struck that scooter of the lady and because of which the said girl fell down on the road and left front wheel of the bus ran over the scooterist lady and crushed her head and chest. Complainant states that because of the accident the lady died at the spot and he immediately after the accident stopped his scooter in front of the bus and tried to apprehend the driver of the bus, but driver of the said bus ran away after giving a push to the complainant. Complainant further says that from the documents lying in the scooter of the deceased, he came to know the name of the deceased to be Seema Pushpakaran D/o T.K. Pushpakaran. Complainant thereafter stated to have called the police and when police reached at the spot, statement of complainant was recorded and on the basis of which, present case was registered.

2. After registration of the case, investigation was carried out and photographs of deceased and of the spot were taken and offending bus and scooter of the deceased were taken into police possession. On the next day i.e. 16.11.03 notice U/s 133 MV Act was given to IO and in pursuance thereof the owner of the bus namely, Jaan Mohd. Appeared before the IO and gave the statement that on 15.11.03 his bus bearing registration no. DL1P-A-0184 was being driven by his driver Kailash FIR No. 554/03 2 State V/s Kailash Chand Chand S/o Puran Singh. On 16.11.03 accused was arrested and documents like driver badge and DL etc. were taken into police possession. After completion of investigation, IO filed the charge sheet in the court. Copy of the same was given to the accused free of cost and Ld. Predecessor of this court vide order dated 23.11.06 framed charge against the accused for offence U/s 279/304A IPC, to which accused pleaded not guilty and claimed trial.

3. In order to substantiate the charge prosecution has examined 12 witnesses. PW 1 is complainant Vineet Sharma, who has testified that he is a practicing Advocate, but he do not remember the exact date in year 2003 while he proceeded from his house for going to his chamber at Pul Mithai Chowk, Sadar Bazar on his scooter bearing registration no. DL3S-Y-2167 as he was going via Ring Road which goes towards the Tis Hazari. PW1 says while he was going from his scooter one lady also on her scooter whose registration no. PW1 could not give in his examination in chief. PW1 further says that one blue line bus being driven by the accused correctly identified by the witness. PW1 further says that the registration no. of the bus was also not completely remembered to him, but it was "DL1P...........". PW1 says said bus was being driven by the accused in a rash and negligent manner as he was also consistently blow horn even on the red light. PW1 says that he was driving the said bus at very high speed and when bus reached near Lal Quila bridge at about 05.30 in the evening, the accused who was driving the said bus in a rash and negligent manner stuck the bus to that lady scooter driver from behind because of which the said lady scooter driver came underneath the rear wheels of the bus. PW1 says after the accident, he immediately stopped his scooter in front of said bus so as to apprehend the accused and after the accident he tried to caught hold the accused present in the court, bus accused ran away after giving a push to him. PW1 retreated that said accident has taken place due to rash and negligent driving of the accused. PW1 further says that upper limb of the body including face of the deceased came FIR No. 554/03 3 State V/s Kailash Chand underneath the bus. Witness has also states that when he was trying to catch hold the driver of the bus, he felt smell of alcohol from the moth of accused and he ran away from there. PW1 further says that thereafter he called the police and police reached there and in the meantime, from the belongings like purse etc. of deceased, he came to know the name of deceased to be Seema. Subsequently, his statement Ex. PW1/A was recorded and offending bus was taken into police possession vide seizure memo Ex. PW1/B, Scooter of the deceased (Kinetic Honda) was also taken into police possession vide memo Ex. PW1/C and IO prepared the site plan Ex. PW1/D at his instance.

4. Since PW1 has not stated certain important particulars in his examination in chief which he had stated in his statement before the police. Therefore, upon the request of Ld. APP for State, witness was allowed to be cross-examined in terms of provisions of Section 154 of Indian Evidence Act. In cross-examination by Ld. APP for State PW1 has stated that it may be possible that occurrence had taken place on 15.11.03. He also says that he cannot affirm of deny the registration no. of Kinetic Honda Scooter of deceased was DL2S-J-8098. Witness has clarified that since occurrence has taken place about 7 years ago from the day when he was giving the statement, therefore, he was unable to recollect the exact registration no. Similarly he could not affirm or deny if the registration no. of the offending bus was DL1P-A-0184. However, he admitted that accident has taken place around 06.45 pm on that day. PW1 has also admitted that bus driver has struck the scooter of the deceased from behind because of which she came underneath the bus. PW1 was duly cross-examined by Ld. Counsel for the accused, which will be discussed at the later part of the judgment.

5. PW2 is superdar Jaan Mohd., who has testified that he is the owner of the bus bearing registration no. DL1P-A-0184 and on the day of accident it was being driven by the accused Kailash Chand. PW2 further says that on the next day of accident he met with IO and got released the bus on superdari as he received the notice U/s 133 MV Act, FIR No. 554/03 4 State V/s Kailash Chand to which he gave the report which is Ex. PW2/A which bears his signatures at point A and superdarinama is Ex. PW2/B. PW3 is Ct. Lakhvinder Singh, who is the photographer and has taken the photographers of the spot and has proved the same as Ex. PW3/P1 to P11 along with their negatives as Ex. PW3/12 to 22.

6. PW4 is Ct. Balwan Singh, who accompanied the IO SI Ved Singh at the spot of accident. PW4 says that when they reached at the spot they found one girl lying dead at the spot and offending bus bearing registration no. DL1P-A-0184 in an accidental condition. PW4 also testified about preparing of tehrir on the statement of the witness by the IO. PW4 also states regarding one Kinetic Honda scooter bearing registration no. DL2S-8098 lying at the spot in an accidental condition. PW4 took the tehrir and went to PS and got the case registered and thereafter came back at the spot and handed over the copy of FIR and original tehrir to IO. PW4 further states that they have taken the body of deceased to Subzi Mandi Mortuary. PW4 was also cross-examined by Ld. APP for State. In cross-examination, PW4 has admitted that when he reached near the spot he saw the dead body of deceased lying underneath the rear left side wheel of the bus. He also admitted that from the inspection of spot, the name of the deceased was revealed to be Seema and name of the eye witness on whose statement was recorded by the IO was Vineet Sharma. PW4 also admitted that IO prepared the tehrir on the statement of Vineet Sharma which was handed over to him.

7. PW5 is Dr. M.K. Panigrahi, CMO, who conducted the postmortem on the body of deceased and his detailed PMR is Ex. PW5/A. He opined the cause of death was instantaneous as a result of cranio-cerebral injuries produced due to compression of face and head.

8. PW6 is HC Shri Bhagwan, who was the duty officer and has proved the formal FIR Ex. PW6/A. PW7 is Narpat Singh, who has testified that the incident took place on 17.07.03. At that time he was FIR No. 554/03 5 State V/s Kailash Chand working at Connaught Place with Advocate Johar. On that day, he was going to Gokul Puri to visit his in-laws on the bus route no. 280, but registration number of the bus he do not remember. PW7 further says that it was evening time and bus was driven by the driver in a very high speed and in a rash manner. The bus was driven in its lane and when the same reached near Red Pul the driver of the bus gave a constant blow of the horn and because of the constant sound of the horn and high speed the rider of two wheeler (Titan Luna) get disturbed and the rider of the said two wheeler tried to get aside but due to the high speed of bus she came underneath of the bus in front as well as in rear wheel of the bus. PW7 further says that driver of the bus though applied the brake but since the speed of the bus was so high, the rider of the two wheeler (a lady) came underneath the bus. The driver of the bus stopped the bus and fled away from the spot. The age of the driver of the bus must be less then 60 years and the offending bus was being driven by the accused present in the court. PW7 further says that the accident took place due to rash and negligent driving of the driver of the bus and after sometime police has come at the spot of accident and carried out the proceedings, there was one another person also who also saw the incidence, whose name was Vineet. Police has recorded his statement as well as of PW7. PW7 duly cross-examined by Ld. APP for State. In cross-examination, he admitted that the bus was bearing no. DL1P-A-0184 and that the two wheeler on which the deceased was riding was bearing no. DL2S-J-8098. He also admitted that the incidence took place on 15.11.03 and on that day he was sitting in the left side of the driver on the front row.

9. PW8 is Sh. Pawan Kumar Jain, Joint Registrar, Delhi High Court, who has testified that on 18.04.04 while he was posted as Ld. MM at Tis Hazari Court, a application for conducting TIP in the present case was assigned to him by the court of Sh. G.S. Saini, the then Ld. MM. IO of the case SI Ved Singh had produced the accused Kailash Chand in a muffled face and after making inquiries from him, he FIR No. 554/03 6 State V/s Kailash Chand refused to participate in the TIP proceedings. The original TIP proceedings are Ex. PW8/A.

10. PW9 is Tech. / Retired ASI Devender, who on 16.11.03 had mechanically inspected the bus bearing registration no. DL1P-A-0184 and scooter bearing registration no. DL2S-J-8098 on the request of IO / SI Ved Singh and his detailed reports are Ex. PW9/A and PW9/B.

11. PW10 is Dr. Saroj Kumar, CMO, HRH, who has testified that on 15.11.03 one patient namely, Seema Pushpakaran was brought to the hospital and after examination, he declared her brought dead. Her detailed MLC in this regard is Ex. PW10/A. PW11 is T.K. Pushpakaran, who is the father of the deceased and has given the identification statement Ex. PW11/A and also received the dead body of the deceased vide handing over memo Ex. PW11/B.

12. PW12 is IO / SI Ved Singh, who has testified that on 15.11.03, he was posted at PS Kashmere Gate as SI. On that day DD no. 26A regarding accident was received by him which is Ex. PW12/A and thereafter he along with Ct. Balwan Singh reached at the spot of accident at Hanuman Setu, Ring Road near monkey bridge, Jamuna Bazar, Delhi. At the spot, he found one bus bearing no. DL1P-A-0184 and one two wheeler scooter no. DL2S-J-8098 near the rear tyre of the bus and a young girl aged about 20-22 years was lying near the rear tyre of the bus dead. There were pieces of the helmet scattered there. One Vineet Sharma was also present there, who introduced as eye witness of the accident. PW12 further says that he recorded the statement of Mr. Vineet Sharma, which is already Ex. PW1/A. On the basis of the statement of Mr. Vineet Sharma, PW12 prepared rukka Ex. PW12/B and handed over the same to Ct. Balvan Singh, who went to PS, got the case registered and thereafter returned to the spot with copy of FIR and original rukka and handed over the same to PW12. Thereafter, PW12 prepared site plan at the instance of complainant Vineet Sharma which is already Ex. PW1/D. Thereafter, the bus and the two wheeler scooter were seized and again said, before seizing the vehicles involved in the FIR No. 554/03 7 State V/s Kailash Chand accident, photographs of the spot were got taken from a Government photographer as per the instructions of PW12 and the photographs are collectively Ex. PW12/C. PW12 further says that the bus and the two wheeler scooter involved in the accident were seized vide seizure memos already Ex. PW1/B and C respectively. Thereafter, one more person namely, Nirpat Singh met with PW12, who also stated that he had witnessed the accident in question. PW12 recorded statement U/s 161 Cr.PC of said Nirpat Singh. Thereafter, dead body was sent to Mortuary, Subzi Mandi, Delhi in custody of Ct. Balwan Singh. Thereafter, PW12 returned to the PS with the vehicles involved in the accident and the vehicles were deposited in the Malkhana of PS by PW12. PW12 further states that on the same day, Mr. T.K. Pushpakaran, father of deceased girl Seema Pushpakarn moved an application before SHO of PS Kashmere Gate for transferring the dead body to mortuary, Hindu Rao Hospital. Thereafter, as per the directions of SHO, PW12 along with Ct. Balwan Singh went to Mortuary, Subzi Mandi, received the dead body from there and transferred the body to Mortuary, Hindu Rao Hospital. PW12 further states that on 16.11.03, postmortem on the body of deceased Seema was got conducted and dead body was handed over to its legal heirs. Identification statements and handing over memo to this effect are Ex. PW11/A , PW12/D and PW11/B respectively. Thereafter, PW12 along with Ct. Balwan Singh returned to the PS. Thereafter, Mr. Jaan Mohd., registered owner of the offending bus appeared at the PS. PW12 served a notice U/s 133 MV Act to Mr. Jaan Mohd., which is Ex. PW12/E and reply to the said notice by Mr. Jaan Mohd. is already Ex. PW2/A. Mr. Jaan Mohd. Also produced accused Kailash Chand, the driver of the bus and after interrogation, accused Kailash Chand was arrested. Arrest memo and personal search memo in this regard are Ex. PW12/F and 12/G respectively. Accused was released on police bail. But, before that accused had submitted photocopy of a court challan vide which the DL of the accused was deposited in the court and photocopies of FIR No. 554/03 8 State V/s Kailash Chand the documents like RC and insurance etc. of the offending bus were also produced by the accused. Which were seized vide seizure memos Ex. PW4/B and A respectively. PW12 further says that he collected the postmortem report from the Hospital and also got mechanically inspected both the vehicles through ASI / Tech. Devender on 16.11.03 itself. Application of PW12 to this effect is Ex. PW12/H and PW12/J and mechanical inspection report in this regard is already Ex. PW9/A and 9/B. Accused was produced in the court in muffled face on 16.02.04 and PW12 moved an application for conducting judicial TIP of the accused and my application to this effect is Ex. PW12/A. The application was forwarded to Ld. Link MM, Sh. P.K. Jain, the then Ld. MM, but accused refused to participate in judicial TIP. PW12 further says that he completed the interrogation, prepared the charge sheet and filed in the court through SHO.

13. After completion of evidence of prosecution, all incriminating evidence were put to accused in memorandum of statement of accused recorded as per Section 281/313 Cr.P.C. wherein accused denied evidence and had taken the plea that accident has not occurred due to his rash and negligent driving.

14. No evidence was led in defence.

15. I have heard ld. APP for the State & Ld. Counsel for accused. Having heard the submissions & having gone through the record care fully let us first discuss the legal requirements for proof of offence u/s 279 & 304A IPC. Section 304-A of Indian Penal Code lays down as:

"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 both."

16. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all probabilities, will cause death. This provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such FIR No. 554/03 9 State V/s Kailash Chand acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edition) Volume 34 paragraph 1 as follows:

"Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two".

17. The requirements of this section are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash, or negligent act of the accused. While dealing with the scope of S. 304-A, IPC Sir Lawrence Jenkins observed in Emperor V. Omkar Rampratap (1902) 4 Bom LR 679:

"To impose criminal liability under S.304-A, Indian FIR No. 554/03 10 State V/s Kailash Chand Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans: it is not enough that it may have been the cause sine qua non".

18. Above said legal proposition still holds the ground. The scope of S. 304-A, I.P.C. came up for consideration before Apex Court in Kurban Hussein Mohammedali v. State of Maharashtra. 1965-2 SCR 622 = AIR 1965 SC 1616, wherein it was observed that what S. 304-A requires is causing of death by doing any rash or negligent act and this means that death must be the direct or proximate result of the rash or negligent act.

19. In "Kuldeep Singh v. State of Himachal Pradesh"2008 CRI. L. J. 3932 it was observed that section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all probabilities, will cause death. This provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mensrea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The death so caused is not the determining factor.

20. In State of Rajasthan v. Nathu Lal" 2008 CRI. L. J. 3861 it was observed that to bring home the offence of Section 304-A of IPC the FIR No. 554/03 11 State V/s Kailash Chand prosecution is required to prove the death of a person by rash and negligent act of the accused. The Section applies only to such acts which are rash or negligent and are directly the cause of death of a person. Thus mere use of words in evidence that truck was being driven with fast speed is not enough to prove basic ingredients of S.304-A.

21. Keeping in view the above said legal proposition as discussed above, let us now come to the facts of the case, there are two eye witnesses to the occurrence i.e. PW1 Vineet Sharma and PW7 Narpat Singh. If we go through their testimony as a whole, it would be evident that they have consistently deposed regarding the basic substance of the basic prosecution allegation. From perusal of evidence of PW1, it would be clear that he had stated that he was also on his scooter when deceased was going on her scooter. Regarding the fact as to how accident had occurred, PW1 has stated "........the said bus was (being) driven by accused in most rash and negligent manner. He was consistently blowing horn even on the red light and was driving at very high speed. When we reached Monkey Bridge, Lal Quila around 05.30 pm in the evening, the accused was driving the bus in a most rash and negligent manner and struck the above said lady scooter driver from behind because of which deceased / scooter driver came underneath the rear wheel of the blue line bus. I immediately stopped my scooter after the accident in front of the bus, so as to apprehend the accused. After the accident, I tried to catch hold the accused, present today in the court, but he ran away after giving me a push. Above accident has taken place due to rash and negligent driving of the accused, who is present today in the court. Deceased had scummed to the injuries at the spot itself as her upper limb and face came underneath the bus........". Similarly, now if we appreciate the evidence of PW7 Narpat Singh, he has testified that the bus was being driven by the accused in a very high speed and in a rash manner. PW7 has further stated that when bus reached near "Red Pul" driver of the bus gave constant blow of horn and due to the sound FIR No. 554/03 12 State V/s Kailash Chand of horn and high speed, the rider of the two wheeler got disturbed and rider of the said two wheeler tried to get aside, but due to high speed of the bus she came underneath the bus in front as well as in the rear wheels of the bus. Driver of the bus though applied the brakes, but since speed of the bus was so high that rider of the two wheeler (a lady) came underneath the bus. The driver of the bus stopped the bus and fled away from the spot. Age of the driver of the bus must be less then 60 years. Offending bus was being driven by the accused, present today in the court. Accident took place due to rash and negligent driving of the driver of the bus, who is present today in the court..........". Thus, from the above discussed evidence, it would be clear that except for minor variation both the witnesses have consistently stated that it was the accused, who was driving the offending bus, it was the accused who was driving the bus in a rash and negligent manner and bus was at very high speed. It is to note that evidence is to be appreciated in totality and not in isolation to understand the truthfulness of the witness, evidence as a whole is to be read and not the extract of the evidence. It is argued by Ld. Counsel for the accused that witness PW1 Vineet Sharma and PW7 Narpat Singh both were declared hostile and thus their evidences are not worth reliance.

22. There is no word "Hostile witness" as such in law of Evidence. Normally a witness speaks or deposes in favor of party who calls him for examination. A party who calls a witness for examination can not ask leading question in examination-in-chief however adverse party can ask leading question in cross examination (Sec.142 and 143). The rule which excludes leading question being put is founded on assumption that a witness must be taken to have a bias in favor of party by whom he is called when the circumstances show that this is not the case and he is hostile to party producing him the judge may in his discretion allow the rule to be relaxed and grant permission to party producing the witness to put such questions as may be put in cross FIR No. 554/03 13 State V/s Kailash Chand examination. So when a witness does not support the case of party by whom witness is called then such witness is termed `Hostile Witness'. Though this term is not used in Sec.154 of Indian Evidence Act which provides that "The court may in its discretion permit the person who calls a witness to put any question to him which might be put in cross examination of adverse party." So when witness becomes hostile to party producing it, then court can u/s 154 of Act allow that party cross examine his own witness and ask leading question, before the cross examination by adverse party. In Yogender Kumar & other vs. State of U.P. 1999 Cri.L.J. 4685 it was held that mere fact that a witness were declared Hostile by prosecution does not efface their evidence from record all together. Evidence of prosecution witness who had partly resided from their previous statement can be used to the extent they support the prosecution for corroborating the other witness. As back as in year 1976 Hon' able Apex court had given very use full observation on this issue which is worth putting her in Sat Paul v. Delhi Administration 1976 CRI. L. J. 295 = AIR 1976 SC 294 wherein it was observed "Even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as so whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be credit worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto. The discretion conferred by FIR No. 554/03 14 State V/s Kailash Chand S.154 on the Court is unqualified and untrammeled and is apart from any question of 'hostility.' It is to be liberally exercised whenever the court from the witness's demeanor, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expression, such as "declared hostile", "declared unfavorable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts." Thereafter in Babulal v. State of Rajasthan 1977 CRI. L. J. 59 (Raj. HC) it was observed "The fact that the prosecutor was permitted to cross-examine its own witness without declaring him hostile would be no reason for discarding his testimony altogether. Even if a witness has been persuaded to introduce some unreliable facts in his statement and the prosecution has been permitted to cross- examine with the leave of the Court, his evidence cannot be treated as altogether washed off. What is required to be seen is whether the credit of the witness has been completely shaken. The fact that such cross- examination was permitted does not imply that the witness who was cross-examined is for all purposes an untrustworthy witness, and no part of his statement can be regarded as representing the truth. The question before the Court in such a case would be to decide which part of his testimony is false, and which part of his evidence is true, provided there is the required degree of conviction in the mind of the Court that a particular part of the testimony of a witness whether it forms a part of the examination-in-chief or cross-examination is true. There is nothing which can impede the Court in acting upon such evidence in support of its conclusion." Similarly in Kerala High Court has observed in Ramachandran v. State of Kerala 2005 CRI. L. J. 1843 FIR No. 554/03 15 State V/s Kailash Chand that evidence of hostile witnesses, can be considered and admissible part of evidence can be accepted by Court provided the Court is satisfied with its truthfulness.

23. It is argued by Ld. Counsel for the accused that evidence of PW1 and PW7 cannot be relied upon as there are certain improvement / contradiction in the evidence. Ld. Counsel for the accused pointed out that PW1 in his examination in chief has not specifically stated the date of accident. It is also submitted that in the evidence of PW1 he has stated that the bus in question was blue line bus. It is also stated that witness PW1 has not completely given the registration no. of offending vehicle and has also stated that the initial number of the bus in question was "DL1P" and it is argued that such number is of all the transport buses. Ld. Counsel for the accused has also pointed out that witness PW7 Narpat has stated that his statement was recorded twice whereas it was contradictory to the evidence of IO. Having given thoughtful consideration to the submissions of Ld. Counsel for the accused and having and having gone through the evidence in totality, it would be evident that the variation / improvements / contradictions pointed out by Ld. Counsel for the accused in the evidence of PW1 and PW7 are very minor in nature and it must be kept in mind that that when a witness has come to give evidence after about six years of the date of accident then it is very much natural that there will be certain contradiction / variation in the evidence of witnesses. In this regard, it must be also kept in mind that PW1 was duly cross-examined by Ld. APP for State and in cross-examination by Ld. APP for State, PW1 has specifically stated that he cannot affirm or deny if the registration no. of scooter which was being driven by the deceased was DL2S-J-8098 and similar was the reply regarding the registration no. of the offending bus was DL1P-A-0184. Witness has also clarified that since the occurrence has taken place about seven years ago, therefore, he is not affirming or deny regarding the registration numbers. It is very much evident from the evidence of PW1 that because of lapse of long time, he FIR No. 554/03 16 State V/s Kailash Chand is unable to clearly given the complete registration number, but has also confirmed the said registration no. when it was put to him by Ld. APP for State during the cross-examination. Similarly if we go through the evidence of PW7, he has also admitted in his cross-examination by Ld. APP for State that the registration no. of the offending bus was DL1P-A-0184. Above of these facts it may be kept in mind that the offending bus was recovered at the spot when IO reached at the spot of accident. In this regard, it is also necessary to refer the evidence of PW2 Jaan Mohd., who is the owner and the superdar of offending bus bearing registration no. DL1P-A-0184. If we go through the examination in chief of PW2, he has stated that on the day of accident, the above said bus was being driven by the accused Kailash Chand which met with the accident and specifically on the next day of accident, he met with IO after receiving the notice U/s 133 of MV Act and the said notice and report is Ex. PW2/A. Now if we go through the notice U/s 133 of MV Act and the report on it as Ex. PW2/A, it would be clear that it was the vehicle bearing registration no. DL1P-A-0184 which was involved in the accident and it is also very much from the report Ex. PW2/A that it was being driven by the accused, who has also been duly identify by both the witnesses PW1 and PW7.

24. Matter can be appreciated from another angle that while appreciating the evidence of the eye witness one of the most important factor is that whether witness has relating to the deceased or is most independent witness. In this case, both the witnesses are in any way not related to deceased nor they are official witnesses or stock witness. Thus when we see that both PW1 and PW7 are independent witnesses, it becomes even more significant to appreciate their evidences that they had no enmity or any axe to grind against the accused. Therefore, their evidences is most natural and spontaneous regarding the accident as well as regarding the involvement of the accused in the accident.

25. It is submitted by Ld. Counsel for the accused that there is also FIR No. 554/03 17 State V/s Kailash Chand some contradiction in between the evidence of PW1 and PW7. The substantive of the evidence of PW1 and PW7 was discussed above. It is argued by Ld. Counsel for the accused that PW7 Narpat has not testified regarding the presence of PW1 Vineet Sharma. It is further submitted that PW7 had not stated that running away from the spot after giving push to PW1 Vineet Sharma as stated by PW1 in his evidence. It is also submitted that Ct. Balwan Singh states that his statement was recorded once whereas IO has stated in his cross- examination that statement of Ct. Balwan was recorded twice. Similarly Ld. Counsel for the accused has pointed out that complainant has stated in his cross-examination that his statement was recorded once whereas IO has stated that statement of complainant was recorded twice. It is also submitted by Ld. Counsel for the accused that there is also some contradiction regarding the fact that the bus was a blue line bus or a charged bus. Having given thoughtful consideration to the submission made by Ld. Counsel for the accused, no doubt there are certain variations regarding recording of statement as well as to the fact that offending vehicle was a blue line bus or a charged bus. But as discussed above, the contradiction and the variation in the statement of the witnesses assume significance only when those contradictions are on certain major aspects.

26. In State of U.P. v. M.K. Anthony 1985(1) R.C.R.(Criminal) 87 :

1985 A.I.R. (SC) 48 it was observed as "While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical FIR No. 554/03 18 State V/s Kailash Chand approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the Appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross- examination is an unequal duel between a rustic and refined lawyer. Similarly in Narotam Singh v. State of Punjab1978 CRI. L. J. 1612 = AIR 1978 SC 1542 it was observed that discrepancies do not necessarily demolish testimony; delay does not necessarily spell inveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative shortfalls. The 'sacred cows' of shadowy doubts and marginal mistakes, processual or other, cannot deter the Court from punishing crime where it has been sensibly and substantially brought home. Reference can also be given of judgment in Indra Pal Singh v. State of U. P. 2009 CRI. L. J. 942 wherein it was observed as "Where evidence of eye-witnesses was consistent and trustworthy & corroborated by medical evidence, same cannot be discarded on ground of insignificant contradictions in their testimony nor can it be rejected being testimony of interested witnesses. In Krishna Pillai v. State of Kerala 1981 CRI. L. J. 743 (SC) Apex court has observed as the prosecution evidence no doubt suffers from inconsistencies here and FIR No. 554/03 19 State V/s Kailash Chand discrepancies there but that is a short-coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc., go to the root of the matter or pertain to insignificant aspects thereof. In the former case the defence may be justified in seeking advantage of the incongruities obtaining in the evidence in the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases.

27. In view of the above said discussion, since variation and the contradiction coming in the evidence of witnesses are very minor and are not on the basic case of the prosecution, therefore, these variations are bound to occurred when the evidence of the witnesses are recorded after about seven years.

28. Matter can be appreciated from another angel. Facts of case in hand involves question regarding doctrine of 'res ipsa loquitur' The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient to prove the accident & who was responsible for this accident. Supreme Court in the case Syed Akbar v. State of Karnataka, 1980 ACJ 38 : AIR 1979 SC 1848 dealt with the scope and applicability of the maxim 'res ipsa loquitur' and observed that "res ipsa loquitur (thing speaks for itself) is a principle which, in reality, belongs to the law of Torts." It has been further observed that "as a rule mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voice the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim 'res ipsa loquitur may apply, ' if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In facts & circumstance of present case the place where accident took place, site plan & photographs, speak for itself that it was FIR No. 554/03 20 State V/s Kailash Chand due to negligence of accused accident has taken place. So to my mind principle of "res ipsa loquitur" can also be invoked in this case.

Announced in open
court on 17.05.10                         (Shailender Malik)
                                     Metropolitan Magistrate (North)
                                       Tis Hazari Courts, Delhi




FIR No. 554/03                      22                 State V/s Kailash Chand
 FIR No. 554/03
U/s : 279/304-A IPC
PS : Kashmere Gate

25.05.10

                      ORDER ON POINT OF SENTENCE

Present : ld. APP for State.
          Convict with counsel Sh. Ombir Singh

I have heard the arguments on the point of sentence. It is submitted by Ld. APP for State that accused be sentenced severely.

On the other hand, Ld. counsel for the Convict submits that convict is a very poor man aged about 65 years and is sole bread earner in his family and having large family consisting of three unmarried daughters to look after, therefore a sympathetic approach may be taken.

Ld. Counsel for the accused has moved an application with the prayer for grant of probation. Although, earlier in "Dalbir Singh Vs. State of Haryana" 2000 IV AD (SC) 507, it was held by the Apex Court that benefit of probation should not be granted in cases of Section 304-A IPC in case of professional drivers of commercial vehicles. However, subsequently, Hon'ble Apex Count in "Paul George Vs. State of NCT of Delhi" JT 2008 (3) SC 545 had granted the benefit of probation to the driver of the offending vehicle taking note of the fact that his career has come to an end and litigation was 20 years old. Above said judgments were taken into consideration by Hon'ble High Court of Delhi in "Pappan Vs. State (Govt. of NCT of Delhi)" 2009 X AD (Delhi) 252 in which a blue line bus was involved in the accident and Hon'ble High Court of Delhi after discussing the judgment of Apex Court in Paul George's case and Kaptain Singh's case as well as Dalbir Singh's case stated that since the judgment of Apex Court in Paul George's case is a later judgment therefore, benefit of probation was granted to the accused who was a blue line bus driver subject to the conditions.

In view of the ration laid down in the above said judgments and considering the fact is a person aged of 65 years and no more driving FIR No. 554/03 23 State V/s Kailash Chand the vehicle / bus and is earning his livelihood on daily basis. Moreover, is also stated to be having liability of three unmarried daughters to look after. I find that benefit of probation is required to be given to accused, U/s 4 of Probation of Offender Act, for a period of 2 years subject to furnishing P/B for sum of Rs. 10,000/- with one surety of equal amount. During the probation period accused is suppose to maintain law and order and also to comply with all the conditions and to appear before the probation officer as and when directed. P/B furnished and accepted.

Accused is also burdened with a cost of Rs. 8,000/- U/s 5 of Probation of Offender Act.

Copy of judgment and order on sentence be given to convict free of cost. File be consigned to record room.

Announced in open
court on 25.05.10                         (Shailender Malik)
                                    Metropolitan Magistrate (North)
                                       Tis Hazari Courts, Delhi




FIR No. 554/03                      24                 State V/s Kailash Chand