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Delhi District Court

Sh. Bidhi Singh S/O Sh. Mange Ram vs State (Govt. Of Nct Of Delhi) on 3 October, 2009

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IN THE COURT OF SH. INDER JEET SINGH, ADDITIONAL SESSION
    JUDGE-02, WEST DISTRICT, TIS HAZARI COURTS, DELHI


Criminal Appeal No. 18/2009


Sh. Bidhi Singh S/o Sh. Mange Ram
R/o H. No. WZ-501, Raj Nagar,
Palam Colony, New Delhi                            .....Appellant.

                               VERSUS


State (Govt. of NCT of Delhi)                      ....Respondent.

                                       In FIR No. 165/1998
                                       under section 279/304A IPC
                                       P. S. Janak Puri


                    Date of institution     : 26.08.2009
                    Decision reserved on    : 25.09.2009
                    Date of decision        : 03.10.2009

JUDGMENT

1. The appellant Bidhi Singh was accused in case FIR No.165/98, police station Janak Puri, under section 279/304A IPC, trial was concluded before the court of Sh. R. K. Tripathi, Ld. Additional Chief Metropolitan Magistrate, Delhi and by the judgment dated 22.07.2009, he was held guilty under section 279/304A IPC. By the order dated 04.08.2009, on the point of sentence, the appellant was awarded three months simple Contd.....

imprisonment and fine of Rs. 500/- in default 10 days simple imprisonment under section 279 IPC & One year rigorous imprisonment along with fine of Rs.2,000/- in default two month simple imprisonment under section 304A IPC. The appellant is aggrieved by impugned judgment and order on the point of sentence, that is why appeal under section 374 Cr. P. C has been filed.

2.1 In order to appreciate the rival contentions qua the grounds of appeal, the matrix of the case is required to be narrated.

Formal notice under section 251 Cr. P. C was framed against the appellant/accused Bidhi Singh for allegations under section 279/304A IPC that on 18.02.1998 at about 11.45 am at Vidhya Marg in front of gate No.4, Tihar Jail Delhi within the area of police station Janak Puri, Delhi, the appellant/accused Bidhi Singh was driving a maruti Van bearing registration No. 92 AF 900-413 rashly and negligently so as to endanger to human life and personal safety of others; and while driving so he hit the cyclist Sh. Ram Bahadur, who succumbed on 19.02.1998. The appellant/ accused pleaded his innocence, abjure the Contd.....

allegations and claimed trial.

2.2 During the trial, prosecution/State produced nine witnesses, out of them witness PW-7 Ct. Om Prakash on duty in the hospital, informed the police station about the death of Ram Bahadur; witness PW-1 Mata Prasad Singh (brother-in- law) & PW-3 Shyam Rang Singh (brother of deceased) were pertaining to identification of dead body of Sh. Ram Bahadur; witness PW-2 HC. Dal Chand (Duty Officer) & PW-5 SI Indraj Singh are police officials, former is duty officer and later is the investigating officer; PW-6 Wg. Cdr. Z. S. Tanwar had inspected the maruti van mechanically; PW-8 Dr. P. S. Sarangi of DDU Hospital, Delhi proved the MLC in respect of injured Ram Bahadur (since deceased) when he was brought to the hospital and PW-4 Dr. Arvind of Safdar-Jung Hospital carried the postmortem of Ram Bahadur and gave autopsy report. It was followed by the statement of appellant under section 313 Cr. P. C, however, he had denied the allegations of accident with his vehicle and deceased had collided with road divider, he fell on stone lying/kept on the other side of road, then received injuries, without opting for defence evidence.

Contd.....

2.3 The court of Ld. Metropolitan Magistrate, Delhi came to the conclusion, while holding the appellant guilty under section 279/304A IPC that the statement of Ram Bahadur recorded in the hospital was a dying declaration, it was admissible under section 32(1) of Indian Evidence Act and such statement of Ram Bahadur has been proved through SI Indraj Singh, whose testimony remained unchallenged. PW-4 Dr. Arvind concluded his opinion that the case was of road accident and Ram Bahadur died because of injuries resulted from the accident. It has further been held that the mechanical inspection report by witness PW-6 Wg. Commander Z. S Tanwar qua mechanical inspection of offending vehicle maruti van depicted the damages in the front left head light and front left side indicator to conclude that the accident was caused by the appellant. The testimony of PW-5, who proved statement of Ram Bahadur, that the appellant was driving the vehicle rashly and negligently vis-a-vis at a high speed, remained unchallenged. The State had succeeded to prove all the requirements of section 304A IPC & section 279 IPC. The trial court further concluded that the appellant was driving the vehicle on Contd.....

wrong side, which is in itself suffice to establish that the appellant was driving maruti van rashly and negligently and at a high speed. Lastly, trial court declined to accept appellant's plea that the statement of Ram Bahadur, gave before his death, is not to be considered a dying declaration while referring Paras Yadav Vs State of Bihar 1999 (2) SCC

126. 2.4 The appellant assailed the present appeal against the impugned judgment that the respondent/State could not prove the charge beyond reasonable doubts and the court had concluded its judgment on the basis of various facts which are neither evidence nor material on record, the impugned judgment suffers from serious infirmities. Neither there was any public witness at the time of preparing the site plan or vehicle was seized but the trial court construed it as a conclusive evidence. The MLC of Ram Bahadur has also not been proved as per law, the statement of Ram Bahadur was recorded by the investigating officer and MLC has not been proved to the effect that he was "declared fit for statement"; on the margin of MLC, it is stated that the injured was "fit for statement", however, the doctor appeared in court failed to Contd.....

tell as to who gave such opinion of "declaring the injured fit for statement". Under such circumstances, the very first statement of Ram Bahadur is surrounded by clouds of doubts. Ram Bahadur had expired after 1 or 2 days from the incident, however, the trial court considered his first statement as dying declaration. The first statement of Ram Bahadur, which was recorded in the ordinary course of business after receipt of information, which result into registration of formal FIR, it cannot be construed as dying declaration, but it was considered so by the trial court. There are not only certain precautions to be observed while recording the dying declaration like either in the presence of Doctors or SDM or Judicial Magistrate, but also there is Rule 7 of Chapter 13A of Volume III of Delhi High Court Rules, (applicable to the subordinates courts under the High Court of Delhi). There are also catena of judgments which also lays down the norms to be observed while recording the dying declaration. In the present case, it has not been proved as to who declared the injured fit for statement, the investigating officer recorded the statement of Ram Bahadur in the usual course of affairs, Ram Bahadur died after 2 days of incident, Contd.....

neither the doctor nor any Judicial Magistrate or SDM or Gazette Officer or any other independent person was called while recording the statement of Ram Bahadur, however, without appreciating the contentions, trial court wrongly concluded that the statement of Ram Bahadur is dying declaration.

Otherwise, also there is no iota of evidence to suggest that the appellant was driving the vehicle rashly or negligently or at a high speed. The site plan Ex. PW5/C has also been misconstrued by introducing own implications/ presumptions that the appellant was driving the vehicle on the wrong side, whereas it was never the case of prosecution/State. DW-1 Anil, who had an occasion to see the circumstances from his office near the spot, has elucidated the circumstances that there was slow flow of traffic, one track of the road was closed because of sewer repairs, both the sides of traffic was flowing on the one lane; it was sufficed to conclude that neither the appellant was driving the vehicle at a high speed nor it was on wrong lane, however, it has not been appreciated by the trial court. In addition, high speed in its self is neither rashness nor Contd.....

negligence. The appellant was driving his maruti van properly in his lane, even at extreme left side, and bicycle of the deceased was found lying on the extreme left of the road, which clearly indicate that the deceased had come in the wrong lane in the traffic and hit against left side of head light of offending vehicle of the appellant. Further, the maruti van has suffered minor damages of Rs. 250/- to Rs.300/- which clearly shows that the deceased was at fault and went on the wrong side, he was responsible for accident and his bicycle had only minor impact. The site plan, mechanical inspection report and the place of accident described, do not support the case of the State. The respondent/State failed to establish the offence under section 279/304A IPC & trial court has wrongly held the appellant guilty under section 279/304A IPC, he deserves acquittal.

2.5 During the course of oral submissions/similar contentions were advanced & paragraph No.2.3 above is compilation of grounds of appeal and the oral contentions advanced. During the arguments, it was tried to high light that the section 32 of Indian Evidence Act does not apply and in terms of Rule 7, Chapter 13A of Volume III of Delhi High Contd.....

Court, the statement of Ram Bahadur, on the basis of which the FIR was registered, cannot be treated as a dying declaration. The statement of Ram Bahadur and the site plan are hit by section 162 Cr. P. C vis-a-vis section 32(1) of Indian Evidence Act, they cannot relied upon. On the one side, trial court treated the statement of Ram Bahadur as dying declaration but during questions/answers session under section 313 Cr. P. C, the accused/appellant was not asked about any dying declaration except endorsement/ rukka Ex. PW5/B read with Ex. PW5/A, which was concluded as dying declaration in the impugned judgment. The contentions have been fortified while relying upon the followings case laws-

(i).Sukhar Vs State of Uttar Pradesh 2000 Crl. L. J 29- wherein it was held that statement given by an injured to the investigating officer and the FIR was lodged by him is not admissible as dying declaration under section 32(1) of Indian Evidence Act. It was also held that the High court had rightly concluded that the statement under section 161 Cr. P. C could not be admissible in evidence under section 33 of Indian Evidence Act.

(ii).Paras Yadav & Ors. Vs State of Bihar 1999 (1) JCC (SC) 70-wherein it was held that investigating officer recorded the statement of number of witnesses, they stated that the injured was in a fit condition to make the statement and investigating officer had recorded the statement Contd.....

of the injured with the intention of recording FIR AND not for the purposes of dying declaration. (Ld. defence counsel requests that although the trial court had referred the judgment, whereas, it has not been properly applied to the features of the present case).

(iii).Ikramuddin Vs State 2009 (110) DRJ 174 (DB)- wherein it was held that non examination of a doctor, who conducted postmortem examination, is one of the circumstances which goes against the prosecution and weaken the case. Paragraph No.25.21 of Chapter V of Punjab Police Rules prescribed that the dying declaration should be recorded by the Magistrate or in his absence by a Gazette Officer or in the presence of two or more reliable witnesses unconnected by the police department (Ld. defence counsel supplements that the statement of Ram Bahadur was recorded either in the presence of doctor or reliable witnesses or by SDM but by PW-5, a police officer connected with the police department. The words Laparwahi (negligence), Gaflat (rashness) are the words being used by the police department in their day to day working, such words are not from the mouth of Ram Bahadur, therefore, the same cannot be treated as dying declaration).

(iv).Jitender Kumar Vs State of NCT of Delhi 2009 (1) JCC 491-wherein it was held that dying declaration is a piece of evidence and it has to be considered along with other relevant and admissible evidence which is brought on record. Where evidence on record casts a doubt on a factual aspect disclosed in a dying declaration, unless explained satisfactorily to the court, the same would be fatal to a dying declaration. It was also held that during the statement under section 313 Cr. P. C of accused, the purported statement of Poonam was not questioned to the accused and such statement was ignored.

(v).State vs Hori Lal & Anr. 2006 (3) JCC 1481- wherein it was held that dying declaration was not inspiring confidence as the doctor who Contd.....

declared that Meena was fit for statement, was not proved.

(vi).Kaushlaya & Ors. Vs The State 1989 Crl. L. J 157-wherein it was held that dying declaration cannot be acted upon as the statement was not attested by any doctor or nurse or any of relations of either of deceased or of accused.

(a) State of Karnataka Vs Satish 1998 SCC(Crl.) 1508-wherein it was held that a truck being driven turned turtle resulting into death of 15 persons and injuries to 18 persons, however, it was held that none of the witnesses examined were able to prove what was the high speed; high speed is a relative term and high speed does not bespeak of either of negligence or rashness by itself.

(b) Chaman Lal Vs The State Air 1954 ALL. 186 (Vol. 41, C. N. 103)- term rashness was under

consideration and it was held that the rashness is acted with consciousness that mischievous consequence are likely follow. Further, criminal negligence is gross and culpable neglect, a failure to exercise that care and failure to take that precautions which having regard to the circumstances, it was imperative duty of individual to take.

(c) Abdul Subhan Vs State (NCT of Delhi) 133 (2006) DLT 562-while referring State of Karnataka (Supra), it was held that it is the duty of prosecution to bring on record the material to establish as to what is meant by high speed, otherwise, there is presumptions of innocence of accused unless contrary is proved.

2.6 Whereas, Sh. B. S. Kain, Ld. Addl. PP for State has opposed the request that there is no infirmity in the findings of returned by the trial court holding the appellant guilty Contd.....

under section 279/304A IPC. The trial court has rightly appreciated the material on record and accepting the statement of Ram Bahadur, since he has expired and he could not stepped into the witness box. The statement of Ram Bahadur is dying declaration, it has been proved by PW- 5 Indraj Singh. Reliance has been placed while referring AIR 1976 SC 2199 that when the victim succumbed to after his making statement to the police by way of FIR, It is a dying declaration. Further in 1990 CLJ 2276 SC it was held that when FIR was lodged by the deceased, it can be treated as dying declaration. The site plan was prepared by him and there is also no flaw. Defence witness DW-1 has not seen the actual incident, therefore, his version does not throw any light on the incident. There is no infirmity in the impugned judgment. The appeal is meritless, it is liable to be dismissed. 3.1 The contentions of both the sides have been assessed in the light of material available on record, the record containing in trial court file and statutory provisions of law vis-a-vis law declared in precedents or reasoning given in the law case.

3.2 At the outset, a few points being raised are taken Contd.....

firstly, the other merits of the appeal will be considered later; firstly, the court of Ld. Metropolitan Magistrate, Delhi in paragraph No.14 of the judgment concluded that the appellant was driving the vehicle on wrong side, whereas it was never the case of the prosecution that the appellant was driving his maruti van in wrong side. To that extent, the appellant has raised a valid ground that inference drawn in paragraph No.14 with regard to the appellant's vehicle plying on wrong side is contrary to the case put by the State; the second point is with regard to the site plan Ex. PW5/C that it is hit by section 162 Cr. P. C and PW-5 SI Indraj Singh prepared the site plan in the absence of eye witness, when the eye witness was not available how the site plan was prepared. This ground of appeal has no merit, since the site plan Ex. PW5/C deciphers at point A where a bicycle in accidental condition was found; the site plan does not depict either in which the manner the accident occurred or the accident was actually happened. Thus, the section 162 Cr. P. C is not applicable; the one of the another point of appeal was that during the statement of appellant under section 313 Cr. P. C, he was not tendered the so called dying Contd.....

declaration Ex. PW5/A but the rukka was tendered which is Ex. PW5/B. This ground of appeal also carries no merit as the statement of Ram Bahadur is Ex. PW5/A and rukka is Ex. PW5/B, both were tendered to the appellant during his statement by asking him question No.2, therefore, the statement under section 313 Cr. P. C does not suffer for want of suggesting dying declaration, the statement which is Ex. PW5/A, which has also been actually tendered to him. Now the other grounds of appeal can be assessed. 3.3 In nutshell, the appellant's case is based on three pillars; firstly, no accident took place from the vehicle of appellant, neither he was rash nor he was negligent, the deceased had collided with the road divider; he fell down and he received injuries while falling on the stones; secondly, the respondent/State failed to prove offence under section 279/304A IPC; Thirdly, the trial court considered the statement of Ram Bahadur as a dying declaration whereas such statement cannot be considered as dying declaration, it has also not been proved that it amounts to dying declaration. Whereas, on the other side, the State has contrary reservations that the appellant was driving the Contd.....

vehicle rashly and negligently, at a high speed; Ram Bahadur was examined in the hospital and he died due to road accidental injuries and his statement recorded on the day of incident amounts to dying declaration.

Firstly, the dying declaration is taken. The statement of Ram Bahadur was recorded immediately after the receipt of information recorded in the form of DD No.16B dated 18.02.1998. PW-5 SI Indraj Singh reached the spot and then in the hospital. The statement of Ram Bahadur is not a statement under section 161 Cr. P. C, since it was recorded prior to the registration of the FIR. It is also not hit by section 162 Cr. P. C. Ram Bahadur died on 19.02.1998. Witness PW- 5 SI Ram Bahadur appeared in the witness box and elaborated exhaustively the facts revealed to him by Ram Bahadur vis-a-vis his statement was recorded immediately. Witness PW-8 Dr. P. S. Sarangi appeared in place of other Dr. Shardha & Dr. Narnaware. PW-4 Dr. Arvind had carried the postmortem examination and he appeared to explain the reasons of death. Neither PW-5 SI Indraj Singh nor PW-8 Dr. P. S. Sarangi nor PW-4 Dr. Arvind were cross examined on any aspects. Their testimony remained un-rebutted. In State Contd.....

of Punjab Vs Amarjeet Singh 1988 SC 2012 - it was held that statement, which was noted down by Assistant Sub Inspector before registration of any FIR, was held to be acceptable. No fault was found in Assistant Sub Inspector in not getting the statement recorded by a Magistrate. Therefore, the injured, in the present case, gave his statement, then FIR was registered and then he died; it is relevant under section 32 (1) of Indian Evidence Act as a dying declaration. The appellant is, in fact, raising contentions, in the form of certain if and buts but the contention being raised are appearing to be questions of (proposed) cross examination but on the eve of appearance of witnesses like PW-8 Dr. P. S. Sarangi or PW-5 SI Indraj Singh or PW-4 Dr. Arvind, such questions were not asked. The same are being raised in the form of grounds of appeal first time in the present appeal or it appears the same were raised during the phase of arguments before the trial court. Thus, it is concluded that considering the MLC, the version of PW-5 SI Indraj Singh and the testimony of doctors witnesses PW-8 & PW-4, the statement of Ram Bahadur recorded on 17.02.1998 is relevant and it can be considered as a dying declaration. The Contd.....

appellant cannot derive any benefit that Sub Divisional Magistrate or Gazette Officer were not called, since the statement was recorded in the usual course of attending the call by SI Indraj Singh. However, whether the contents of the statement of Ram Bahadur satisfies the requirement of law of offence under section 279/304A IPC, or not is the next subject matter of discussion.

3.4 The other grounds of appeal are attached with various facts which are overlapping with each other or pertaining to the site plan Ex. PW5/C, mechanical inspection report of maruti van Ex. PW6/A. The condition of bicycle, seized by the police vide memo Ex. PW5/E, record of MLC Ex. PW8/A, postmortem report Ex. PW4/A and the statement of Ram Bahadur Ex. PW5/A. In the statement under section 313 Cr. P. C, the appellant denied the incident, the deceased had collided with road divider and received injuries by falling on the road, however, in paragraph No.(iv) read with paragraph No. xxvii of grounds of appeal, a contrary stand is taken that there was a impact between the maruti van of appellant and the bicycle of deceased. DW-1 Anil Kumar in his statement also Contd.....

corroborates the presence of appellant at the spot and the deceased was taken to hospital in his maruti van. By reading the statement of Ram Bahadur with the site plan and with the statement of DW-1 Anil Kumar, Ram Bahadur was going on his bicycle from Vidhya Marg towards Pankha road. The maruti van was coming from the opposite side i.e Pankha road to Virender Nagar side. As per statement of DW-1 Anil Kumar, the statement Ex. PW5/A of Ram Bahadur and the site plan Ex. PW5/C, the traffic was flowing on one track of the road since the other side road was under repairs of sewer. One has to move on left side of the road maruti van was moving from Pankha road to Virender Nagar side, bicycle was found at point A (site plan Ex. PW5/C) it means that there was an impact from front side of both i.e bicycle and the maruti van. As per mechanical inspection report Ex. PW6/A the left side head light and indicator light were damaged and as per seizure memo of bicycle Ex. PW5/E, the front wheel of bicycle was damaged. When the maruti van and bicycle were in front of each other, there was no occasion not to avoid the accident. Statement of PW-4 Dr. Arvind has also concluded the cause of death was injuries Contd.....

upon grand forth impact due to road traffic accident. Therefore, the appellant was driving the vehicle, there was an impact between his vehicle and the bicycle driven by Ram Bahadur and because of such impact, he received road accident injuries and he succumbed on 19.02.1998. 3.5 The statement of Ram Bahadur Ex. PW5/A, which was also referred during the statement of PW-5 SI Indraj Singh that the appellant was driving the vehicle rashly or negligently and even Ram Bahadur's statement also mentions not only the name of appellant Bidhi Singh, his parentage and address but also the registration number of maruti van. It mentions that the appellant was driving the vehicle rashly, negligently or at a high speed. The appellant cannot derive any benefit that word high speed, rashness and negligently was mentioned in his statement since PW-5 SI Indraj Singh, who proved the statement Ex. PW5/A was not cross examined on these scores despite opportunity. 3.6 In view of detailed analysis in paragraph No.3.3 to 3.5 above, it is held that the trial court has rightly concluded that the appellant was driving the maruti van on a public place in a manner endanger to human life and personal Contd.....

safety of others and while driving so he hit the cyclist Sh. Ram Bahadur, who succumbed on the following day. The impugned judgment dated 22.07.2009 is affirmed. 4.1 Now the question remained to be answered is only on the point of quantum of sentence. The appellant through his Ld. counsel requests that the lenient view may kindly be exercised since the appellant took the injured to the hospital so that he may have at the earliest medical aid. He has been serving in Air Force, he is government servant and earlier there was an internal inquiry by the department, however, no fault of him was found. He deserves lenient view, otherwise, his family depending on his livelihood may be victimized.

4.2 Whereas, Sh. B. S. Kain, Ld. Addl. PP for State has contrary requests that since allegations have been proved, he deserves punishment as per law.

4.3 The circumstances are assessed that on the one side there is liberty of the appellant and on the other side, there is society at large vis-a-vis the family of deceased. Secondly, the family of appellant may be victimized since the appellant is a serving government servant, his family is Contd.....

depending upon him. Thus, considering all these aspects, the following directions are given:-

(i).By exercising powers under section 361 read with section 360 Cr. P. C with the provision of the Probation of Offender Act, since there is no previous conviction record against the appellant, he is held entitled for benefit of the Probation of Offender Act, however, it is subjected to

(a) he will keep peace and good behaviour for a period of one year subject to his furnishing personal bond and surety bond in the sum of Rs. 20,000/-; (b) he will pay compensation of Rs. 50,000/- to the kin and kids/heirs of deceased Ram Bahadur. At this stage, it is requested to provide a week time to arrange the compensation amount and to deposit the same.

(ii).In case, compensation is deposited and bond is not furnished or if furnished but the same is violated or in case any of the conditions of the bond is breached, the appellant will come and receive the sentence to be awarded by the court.

(iii).The amount of compensation will be payable to the legal heirs of the deceased on notice by the court of Ld. Metropolitan Magistrate, Delhi

(iv).The bond will be furnished on 09.10.2009 to the satisfaction of Ld. Metropolitan Magistrate, Delhi and amount of compensation will be deposited there.

(v).In view of the decision in paragraph No.(i) to (iv) above, the impugned order on the point of sentence dated 04.08.2009 is set aside. However, in case, the condition imposed in paragraph No.(i) to (iv) are not complied by the appellant, Ld. Metropolitan Magistrate, Delhi will pass appropriate order on sentence afresh.

The appeal is, accordingly, partly allowed to the extent of modification of order on the point Contd.....

sentence. Copy of judgment be given to the appellant. A copy of judgment be sent to the trial court along with trial court record so that appropriate steps may be taken inclusive of notice to legal heirs of deceased for disbursement of compensation. The appeal file is consigned to record room.

(Announced in the open court INDER JEET SINGH on 03.10.2009) ADDITIONAL SESSION JUDGE-02 WEST DISTT TIS HAZARI COURT DELHI Contd.....