Delhi District Court
State vs . Dilbagh Singh on 21 April, 2007
IN THE COURT OF SH. DIG VINAY SINGH, METROPOLITAN MAGISTRATE, ROHINI, DELHI
In re,
STATE VS. DILBAGH SINGH
FIR NO. 388/97
Police Station Punjabi Bagh
U/S 279/304 A OF IPC
JUDGEMENT
(a) The serial no. of the case : 972/2
(b) The date of commission of offence : 14/4/97
(c) The name of complainant : Ct. Jitender Kumar
d) The name, parentage, : Dilbagh S/o Sh. Rattan Lal R/o H. No. 431, Kot
residence of accused Mohalla, Near Ram Mandir, P.S. Sadar
Sonipat,
District Sonipat (Haryana).
(e) The offence complained of/ proved : U/s 279/304 A of IPC
(f) The plea of accused : pleaded not guilty
(g) The final order : CONVICTED
(h) The date of such order : 21/04/2007
(i) Brief statement of the reasons for the decision :
1. Sole accused in this case was sent up for trial with the case of the prosecution that on 14/4/97 on receipt of DD no. 13 A IO SI Rajpal Singh along with Ct. Shamsher Singh reached ring road crossing, General store Punjabi Bagh where Ct. Jitender eye witness of the accident was present. Ct. Jitender made his written complaint stating that he was present on duty along with Home Guard Mohan Prasad on the said crossing at about 8.30 pm on that day when truck no. HR 10 2876 came from the side of Britannia Chowk and at the crossing while driving rashly and negligently hit against one TSR no. DB L 7521 as a result of which the TSR overturned and TSR driver sustained injuries. The injured was taken to ESI hospital by Home Guard Mohan Prasad and the truck driver left behind his truck after the accident and fled away from the spot. On this complaint, present case was registered and matter was investigated. The injured Naresh was declared brought dead in the hospital.
2. Accordingly, a notice U/s 279/304 A of IPC was served against the accused to which he pleaded not guilty and claimed trial.
3. In support of its case prosecution examined nine witnesses.
4. All the incriminating evidence was put to the accused in his statement U/s 313 Cr. P.C. In the statement the accused admitted that he was driving the truck in question on the said date, time and place but he stated that absolutely no accident took place with his truck and stated that he has been falsely implicated in this case. Accused stated he wants to examine helper of the truck in defence but subsequently without examining any witness the accused closed his defence evidence on 23/6/06 therefore no defence evidence has come on record.
5. Once the accused admitted that he was driving the truck on the said date, time and place, all that the prosecution is required to prove is that the accident occurred with the truck of the accused and secondly that the said accident occurred due to rash or negligent driving by the accused.
a. PW1 Dr. Kamla Gupta conducted post mortem on the deceased and proved her report Ex.PW1/A. b. PW2 J.S. Pawar conducted mechanical inspection on both the vehicles and proved the report Ex.PW2/A & B of TSR and truck respectively. This witness was not cross examined by accused despite opportunity, therefore report of mechanical inspection remains unrebutted.
c. PW3 Ashok Kumar proved MLC of injured deceased as Ex.PW3/A. d. PW6 Ramphal identified the dead body of his son Naresh.
e. PW8 Dilbagh Singh son of Shrichand Ram was the registered owner of the truck who proved that accused Dilbagh son of Rattan was the driver of the truck on the date, time and place of accident and proved his reply to notice U/s 133 M. V. Act.
f. PW8 Ct. Raj Singh was also a formal witness who was on duty at ESI hospital on the day of accident and he gave information of admission of injured to the Police Station Punjabi Bagh vide DD no. 13 A. g. PW9 Ct. Bijender was also a formal witness who handed over the body of deceased to his father. He also proved that the accused was identified by the complainant Ct. Jitender in the Police Station on 15/4/97 and thereafter the accused was arrested and his personal search Ex.PW9/A was conducted.
h. PW7 Ct. Shamsher accompanied the IO SI Rajpal Singh to the spot of accident on receipt of DD no. 13 and he proved that one traffic constable and one home guard met them at the spot and thereafter he was given rukka for getting the case registered and he went to the Police Station and returned after getting the case registered. Thereafter, the IO seized both the vehicles i.e. truck no. HR 10 A 2876 and TSR vide recovery memo Ex.PW7/A & 7/B bearing his signatures.
i. The two eye witnesses of the accident Ct. Jitender and Home Guard Mohan Prasad have been examined by the prosecution as PW4 & 5 respectively. PW4 Ct. Jitender deposed that on 14/4/97 he was on duty at Punjabi Bagh chowk along with PW5 Home Guard Mohan Prasad and at 8.30 pm truck no. HR 10 A 2876 came from the side of Britania chowk and crossed the red light after jumping the red signal and hit against one TSR van which was coming from Nangloi side bearing no. DBL 2571. This witness specifically deposed that the truck driver jumped the red light and was at the speed of 60-65 Km/hr and at the time of accident, it was green signal for TSR. Thereafter, TSR driver was removed to ESI hospital by PW6 Mohan Prasad. This witness also deposed that it was the accused who was driving the truck and who fled away from the spot. This witness proved his complaint Ex.PW6/A. In the cross examination by Ld. APP for the State this witness admitted that the correct number of the TSR was DBL 7521 and not DBL 2571 which even otherwise was minor mistake on account of lapse of memory.
j. Similarly, PW5 Home Guard Mohan Prasad also deposed that on the date, time and place of accident, it was the accused who was driving the truck and who after jumping the red signal in negligent manner hit against the TSR of the injured. He deposed that the speed of the truck was very high and as a result of the impact of this accident, the TSR over turned and he took the injured to the hospital where he was declared brought dead.
6. I have heard Ld. APP for the State and counsel Sh. Abdul Aziz for the accused.
7. ld. counsel for the accused contended that investigating officer in this case has not been examined and the siteplan which has been filed on record does not show the position where eye witnesses were and from where they saw the accident in question nor it is mentioned as to from which direction the truck was coming when the accident occurred. Besides this, it is pointed out that there are contradictions in the testimony of witnesses regarding time when intimation of accident was received, police left the police station for spot, police reached the spot and at what time and where the statement of eye witnesses was recorded. It is also contended that the eye witness have not used the work rash or negligent when they were deposing in the court therefore accused cannot be said to have been driving rashly or negligently.
8. Law is well settled that it is not necessary that witnesses use the word rash or negligence in the testimony and what is to be seen is whether the facts and circumstances in which accident occurred shows that it was negligent or rash driving. Use of these words by the witness is not necessary, it is to be inferred from the facts and circumstances of each case. In the present case when the eye witnesses specifically deposed that the truck jumped the red light and when the truck jumped the red light, it was green signal for the TSR shows that it was sheer negligence and rash driving and nothing else. If a person drives a heavy vehicle at a high speed at a crossing and does not care to stop at red signal it is nothing but rash and negligent driving.
9. ld. counsel for the accused has argued that investigating officer in this case has not been examined which is fatal to the case of the prosecution and in support of his contention has placed reliance upon the case of Harnam Singh Vs. State 19982 Cri. L. J 1818 of Allahabad High Court. The said case is distinguishable on the facts of the case. In that case, non-examination of investigating officer was held to be fatal since the accused persons had confronted the eye witnesses with their statements recorded during investigation by the investigating officer which did not implicate the accused in the offences. In such circumstances, it was held that IO ought to have been examined. Similarly, reliance is placed upon the case of P. Joga Vs. State of M. P. 1984 (1) Cri. L. J. 455 in which it was held that omission in not examining the investigating officer was serious.
10. Law is now well settled that it is not in every case in which the investigating officer is not examined that the prosecution case is liable to be thrown out. It depends on the facts and circumstances of each case. It is not necessary that in every case, in which IO is not examined would be fatal to the case of the prosecution. The same is to be seen in the facts and circumstances of each case. In the present matter, IO could not have proved anything besides the circumstance otherwise proved by the prosecution witnesses, therefore, non examination of IO is not fatal to the case of prosecution. What is material for the court to see is the quality of the evidence and not quantity. In the present case, main evidence against the accused is of complainant who has deposed in the court specifically against the accused. Therefore, non examination of IO is not fatal to the case of the prosecution.
11. It is now settled law that when the investigating officer does not step into the witness box the benefit cannot be granted to the accused if there is testimony of other prosecution witnesses which is unblemished and reliable. It is also well settled that in those cases where the prosecution succeeds in proving its case by the examination of other witnesses, merely because the investigating officer fails to step into the witness box, the case of the prosecution cannot be thrown out. In the case reported as (2001) 8 SCC 311 it was held by Hon Supreme Court that where there were several witnesses who had given credible and believable evidence regarding place of occurrence, held, their evidence cannot be discarded merely because the investigating officer had not been examined when in the circumstances of the case the investigating officer could not have given any evidence as to the actual place of occurrence. It was held that mere non examination of the investigating officer had not caused any prejudice to the accused persons and therefore conviction cannot be set aside. In the case of state of Karnataka vs. Bhaskar Kushali Kotharkar AIR 2004 SC 4333 also it was held that Non-examination of Investigating Officer is Not fatal when no serious contradictions is pointed out in respect of evidence of important eye-witnesses in the case of AIR 2003 SC 4664 Raj Kishore Jha vs. State of Bihar it has been held in para no 11 Mere non-examination of Investigating Officer does not in every case cause prejudice to the accused or affects the creditability of the prosecution version. In Ram Dev and another v. State of U. P. (1995 Supp (1) SCC 547), it was noted that non-examination of the Investigating Officer does not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of the eye- witnesses. It was, however, indicated that it is always desirable for the prosecution to examine the Investigating Officer. In the present case after examination-in-chief and partial cross-examination, the Investigating Officer had died. Therefore, this cannot be a case which can be stated to have caused any prejudice to the accused on account of Investigating Officer's non-examination. The prosecution cannot be attributed with any lapse or ulterior motives in such circumstances. In Behari Prasad and others, v. State of Bihar (1996 (2) SCC 317) it was held that case of prejudice likely to the suffered mostly depends upon facts of each case and no universal straight-jacket formula should be laid down that non-examination of Investigating Officer per se vitiates the criminal trial. The said view has been found echoed in Ambika Prasad and another v. State (Delhi Administration) (2000 (2) SCC 646), Bahadur Naik v. State of Bihar (2000 (9) SCC 153) and Ram Gulam Chaudhury and others v. State of Bihar (JT 2001 (8) SC 110). Similarly in the case of SUDAN GOPE @ SUDAM GOPE V/S STATE OF BIHAR 2000(2) CRIMES 255 also it was held that Non-examination of I.O. will not be sufficient to throw the whole prosecution case where the prosecution case is found established from oral and medical evidence.
12. in the present case, it was the two eye witnesses PW4 and 5 Ct. Jitender and Home Guard Mohan Prasad who could have proved whether the accused was driving rashly or negligently. The IO is not an eye witness of the accident. The other two eye witnesses have specifically proved the rash and negligent driving by the accused. In such circumstances, examination of IO is not fatal.
13. It is next contended that the siteplan in this case has not been proved nor the siteplan discloses the place from where PW4 & 5 witnessed the accident. In support of this contention, reliance is placed upon the case of Sagar Chand Vs. State 1990 (1) CC Cases 489. in the said case of attempt to murder it was held by Hon'ble Delhi High Court that the siteplan does not point out the place from where witness saw the incident and the evidence and the siteplan were not inconformity. It was in such circumstances where evidence of the witnesses was not inconformity with the siteplan that such benefit was given. But in the present case of accident, no such contradiction has come up in the testimony of the eye witnesses regarding the manner of the accident therefore, this lapse is also not fatal. Even otherwise, the accused has not suggested to PW5 in his cross examination that the accused did not jump the red light or that he was not driving fast. When PW-5 specifically deposed that it was the accused who jumped the red light and hit the TSR, accused ought to have put the suggestion failing which this point stands admitted as unrebutted and in such circumstances the lapse in the siteplan is not material enough.
14. It is next contended that the Test identification parade of the accused has not been conducted in a court of law and the identification before police is immaterial. And in this regard, reliance is placed upon Ram Charan Budhiram Gupta Vs. State of Maharashtra 1995 Cri. L. J. 4048. The said contention is also without force since in the present case the accused admitted that he was driving the truck in question on the said date, time and place but he only stated that he did not cause this accident. Once the accused admitted that he was driving the truck in question on the said date, time and place his identification in judicial test identification parade becomes immaterial and all that the prosecution was required to prove was that accident was caused by him while driving rashly or negligently. This fact has been so proved by PW4 & 5. Even otherwise, the identification of the accused in the court is material and TIP during investigation merely acts as a corroborative piece of evidence. If it was the case of the accused that he did not cause this accident, he could have examined the helper of the truck who was admittedly present with the accused and although the accused in his statement claimed that he wants to examine the helper but thereafter did not examine helper and closed the defence. It requires an adverse inference should be drawn against the accused that had he examined the helper he would not have supported the version of accused. Even otherwise, the truck of the accused was found standing at the place of accident after the accident and was seized by the police which shows that the truck of the accused was involved. The mechanical inspection report Ex.PW2/B has also proves that there were fresh damages on the truck which shows that it was involved in the accident, therefore non-holding of judicial TIP of accused is immaterial.
15. It is next contended that PW4 Ct. Jitender and PW5 Home Guard Mohan Prasad did not prove their duty slip therefore their presence at the spot is doubtful. There is no force in this contention. Both these witnesses have specifically deposed that they were present at the place of accident and saw the accident. Ct. Jitender was found present at the spot when the IO first reached the spot, the injured/deceased was admitted to the hospital by home guard Mohan Prasad as is clear from the MLC Ex.PW3/A which further lends credence that these witnesses were present at the spot. If it is the case of the accused that these two officials were not on duty the accused could have very well summoned their duty records. Once these witnesses claim that they were on duty at the spot and the accused wants this court to believe that witnesses were not on duty it was for the accused to have summoned and proved the duty records of those witnesses. In absence thereof, the defence taken by the accused cannot be looked into.
16. So far as contradictions pointed out by accused in testimony of prosecution witnesses are concerned, in my considered view none of the contradictions as appearing in the statement of the witnesses and as pointed out are material enough to create doubt about the truthfulness of the case of the prosecution. It may be mentioned here that the accused took up a defence that he has been falsely implicated in the present case but no cogent reason for false implication has been shown. Whenever an accused takes up a plea that he has been falsely implicated the first question which arises is as to what was the ground for false implication. This question in the present case has not been answered. It may be mentioned that for any false implication there has to be some or the other motive which is in the best knowledge of the accused and the onus to tell the motive of false implication is on the accused which could not be discharged in the present case. Simply by alleging that we have been falsely implicated -falsely implicated would not be sufficient to create doubt about the case of the prosecution. The accused does not have any kind of enmity with any of the prosecution witnesses therefore there is no question of his false implication. The nature of contradictions pointed out in the present case are minor and are infact simple errors of observation which occurs in human nature. The testimony of the witnesses are otherwise corroborating each other in all necessary material particulars. Simply because there occurs some minor variations in their powers of observation and retention would not make the case of the prosecution unbelievable.
17. In the case of Sukhdev Yadav & ors. Vs State of Bihar (2001) 8 SCC 86 it was held by Hon Supreme Court that that once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same . If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. Relying upon an earlier decision in Leela Ram vs. State of Haryana (1999) 9 SCC 525 it was observed that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Relying upon an earlier decision in Ramani vs. State of M.P. (1999) 8 SCC 649 it was also observed that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was also held that it is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeachment the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.
18. In Krishna Mochi and Others Vs. State of Bihar, (2002) 6 SCC 81, where it was held that it is the quality of evidence that matters and not the number of witnesses. It was further held that credible evidence of even a solitary witness can form the basis of conviction. That contradictions, inconsistencies, exaggerations or embellishments are inevitable. It was further held that a discrepancy existing in a prosecution case should not weigh with the Court so long it does not materially affect the case. It was further held that the duty of the Court is not only to see that no innocent man should be punished but also to ensure that no person committing an offence should get scot-free. It was also held that even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction could be maintained.
19. In view of above discussion, the prosecution has proved beyond reasonable doubt that it is the accused Dilbagh who jumped the red light and hit the TSR causing injuries to TSR driver and his subsequent death due to injuries sustained in this accident. Driving a truck on a crossing and jumping the red signal without caring for other road users is nothing but sheer rash driving. Accordingly, accused is found guilty and is convicted U/s 279/304 A of IPC.
Announced in the open court on 21/04/07. Dig Vinay Singh Metropolitan Magistrate Rohini / Delhi