Delhi District Court
Sanjeevan Kumar vs State on 4 March, 2017
1 of 12
IN THE COURT OF SH. NARINDER KUM AR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Decided on: 04.03.2017
Case No.44/17
CA No. 17/2017 of 25.02.2017
Sanjeevan Kumar vs State
Sanjeevan Kumar
S/o Shri Amin Chand,
R/o H.No. 197, Village Haiderpur,
Delhi.
.....Appellant
Versus
The State
.....Respondent
JUDGMENT
Present appeal has been filed by Sanjeevan Kumar who has been convicted by Learned Metropolitan Magistrate in case FIR No.201/2009 of PS Subzi Mandi, U/s. 279 & 304A IPC and sentenced to undergo SI for one year for the offence u/s 304A IPC and SI for three months for the offence u/s 279 IPC. Both the substantive CA No. 17/2017 Dtd. 04.03.2017 2 of 12 sentences of the imprisonment have been ordered to run concurrently.
2. Accusedappellant has been held guilty of the aforesaid two offences on the accusation that on 19.7.09, at about 11:25 am, at TPoint Roshnara Road, corner of Pul Bangash, Delhi, he while driving bus No. DL1PB 5745, of route no.127, in a rash and negligent manner caused accident and as a result Rajesh, a pedestrian who was crossing the road from right to left, was running over, and crushed under the left front wheel of the bus due to the negligency of the accused.
3. Case was registered on the statement Ex.PW5/A made by HC Joginder Singh, eye witness to the accident while he was present on duty at TPoint, Pul Bangash.
4. Ld. Counsel has pointed out that prosecution did not prove before the Trial Court Duty Roaster to prove that HC Joginder Singh the alleged eye witness was on duty on the given date, time and place. Further, it has been submitted that when officials from Traffic Police were on duty at the given place, HC Joginder Singh was CA No. 17/2017 Dtd. 04.03.2017 3 of 12 not supposed to be present on duty at the said place to control traffic. As further contended, even if it be assumed for the sake of arguments that HC Joginder Singh was present at the duty at point C, he could not witness the accident taking place at point A and and as such no reliance should have been placed by Ld. Metropolitan Magistrate on his testimony, as regards the manner in which the accident took place.
5. Ld. Counsel for the accusedappellant has further submitted that it was the pedestrian who was negligent in crossing the road, while running, but Ld. Metropolitan Magistrate has held the accusedappellant guilty of the two offences and as such impugned judgment of conviction and order on sentence deserve to be set aside.
In support of his decision, Ld. Counsel has referred to decision in Mahadeo Hari Lokre v. The State of Maharashtra, AIR 1972 Supreme Court 221.
6. On the other hand, Ld. Addl. PP has submitted that case was registered on the statement of HC Joginder Singh in which he narrated manner in which the accident took place. Further, it has been submitted that had HC Joginder Singh not been present on the CA No. 17/2017 Dtd. 04.03.2017 4 of 12 given, date and time or had he not witnessed the accident, he would not have been able to narrate the manner in which the accident took place and even his statement could not have been recorded leading to recording of the FIR at about 1:00 pm. Ld. Addl. PP has referred to Para No.12 of the judgment passed by Ld. Metropolitan Magistrate and the observation made therein, and submitted that prosecution fully proved before the Trial Court that it was due to his rash and negligence in driving the bus that the pedestrian was crushed under the left frontal wheel of the said bus.
7. Accident is alleged to have taken place on 19.7.09 at 11:25 am at TPoint, Roshnara Road, corner of Pul Bangash, within the jurisdiction of Police Station Subzi Mandi. As noticed above, case was registered on the statement of HC Joginder Singh which is Ex.PW5/A.
8. When notice u/s 251 Cr.P.C was served upon the accused, he pleaded not guilty and claimed trial.
9. Prosecution examined ten PWs. The accused did not dispute post mortem examination report Ex.P1 when his statement CA No. 17/2017 Dtd. 04.03.2017 5 of 12 was recorded by Ld. Metropolitan Magistrate u/s 294 Cr.P.C.
10. In his statement u/s 313 Cr.P.C accused denied that accident took place in the manner narrated by PW5. He admitted that on the given date, time and place, he was driving the said bus and that he was arrested from the spot.
Plea put forth by the accused is that he was taking turn towards left as there was green signal for him but the deceased all of a sudden came running in front of his vehicle and he stopped the vehicle then and there.
11. The main stay of prosecution was on the statement of PW5 HC Joginder Singh, eye witness to the accident. While appearing in court, HC Joginder Singh narrated the manner in which the accident took place while reiterating the version given to SI Bansal Lal in his statement Ex.PW5/A. According to PW5, at the time of accident i.e. 11:25 a.m, he was present at TPoint of Pul Bangash while managing traffic and helping Kanvarians in crossing the road when the said bus of route no.127 came from the side of Roshnara Road at a very high speed and being driven in rash and negligent manner. Further according to him, the driver of the bus took left CA No. 17/2017 Dtd. 04.03.2017 6 of 12 turn at TPoint and hit a person who was crossing the road, resulting in his fall and that the said person was crushed under the front conductor side's tyre i.e. front left side tyre of the bus. He then proceeded towards the bus and apprehended its driver although he tried to flee away. The witness correctly identified the accused present in the court as a driver of the said bus.
It is also in the statement of PW5 that some passersby informed PCR. After sometime, SI Bansi Lal accompanied by Ct.Rana Pratap reached the spot. That is how, the accused was produced before the SI. PW5 has also proved his statement Ex.PW5/A. In Ex.PW5/A HC Joginder Singh stated regarding his presence on the said date while on duty from 7:00 a.m.to 3:00 pm, at TPoint of Pul Bangash. Further, according to him at 11:25 am while he was present at TPoint, controlling traffic and also helping Kavarians in crossing the road, bus no. DL1PB 5745 of route no.127 i.e. from Haiderpur to Old Delhi Railway Station came from the side of Roshnara Road, in the rash and negligent manner took left turn and as a result hit the pedestrian, who was crossing the road, resulting in his fall. He further stated to have apprehended the accusedappellant then and there and informed the police, whereupon, SI Bansi Lal reached the spot and the accused was CA No. 17/2017 Dtd. 04.03.2017 7 of 12 produced before him.
12. In his cross examination PW5 stated that at the time of accident, he alone was managing traffic at Pul Bangash TPoint.
Ex.PW10/A1 is the site plan depicting the place of occurrence. According to PW10 SI Bansi Lal, he prepared this site plan at the pointing out of HC Joginder Singh. In this site plan, four marginal notes find mention. Point A is the place where accident took place; Point B is the place from where the pedestrian (since deceased) was crossing the road; Point C is the place where eye witness HC Joginder Singh was present and witnessed the accident and then apprehended the accused i.e.the driver of the bus. Marginal note (4) depicts the distance between Point A & C to be 50 yards.
In his cross examination PW5 reiterated that he was present at point C at the time of accident, while he was managing traffic. The accused, while coming from the side of Roshnara Road had a right to take left turn green signal being there.
In his cross examination PW5 admitted that from Point C where he was present, it was almost impossible to see as to what was happening on the front left side of the vehicle which took left turn from Roshnara Road. It is true that witness so stated but the same CA No. 17/2017 Dtd. 04.03.2017 8 of 12 does not help the accusedappellant, the reason being that the deceased was clearly seen by the Head Constable crossing the road and the bus hitting him, resulting In his fall. Had the pedestrian not been crossing the road from Point B to A, then it would have been difficult for the Head Constable to see any such accident. But when the pedestrian was crossing the road from Point B to C and the Head Constable was present at Point C , he could easily witness the bus, driven by the accused hitting the said pedestrian resulting in his fall. The other fact stated by HC Joginder Singh is that pedestrian was crushed under the left side tyre of the bus, can safely be said to have been narrated by the Head Constable on having reached point A and having seen the dead body under the bus.
It is true that the prosecution did not produce on record any Duty Roaster of HC Joginder Singh, but it was the duty of the IO to collect the same and make it a part of the record. It appears that the IO failed to collect the Duty Roaster. It is well settled that simply because of the negligence of the IO, no adverse inference should be drawn against the prosecution. Similarly, herein, simply because the IO did not collect Duty Roaster regarding presence of HC Joginmder Singh at TPoint of Pul Bangash, his presence on the given date, time and place cannot be doubted. Accused could also easily summon the CA No. 17/2017 Dtd. 04.03.2017 9 of 12 Duty Roaster to rebutt the evidence led by prosecution regarding presence of HC Joginder Singh at the given date, time and place, but the accused did not take any such step.
13. Ld. Defence Counsel has submitted that IO could join persons from the nearby shops to record their version regarding the accident but no such person was joined in the investigation which creates doubt in the prosecution story.
SI Bansi Lal admitted in his cross examination that there was a Tea Stall by the side of traffic signal on the left side and shops of seed vendors were lying opened there. Further according to the SI, he had enquired from the Tea Staff owner and seed vendors about the accident but they refused to join investigation. In this situation, nonrecording of statements of those shopkeepers or vendors does not adversely affect the case of the prosecution.
Even otherwise, accused has not been able to prove on record any material to suggest that HC Joginder Singh was inimical towards the accused so as to falsely implicate him in such like case.
14. Ld. Counsel for the accusedappellant has pointed out that PW5 HC Joginder Singh improved upon his statement before SI CA No. 17/2017 Dtd. 04.03.2017 10 of 12 Bansi Lal by introducing the fact that disclosure statement was made by the accused that since only 23 seconds were left in the green signal for his side, he accelerated speed of the bus, so that he could cross the TPoint and that in this process he caused the accident.
In his cross examination PW5, when questioned in this regard, admitted to have not stated so in the initial statement Ex.PW5/A about this fact but explained that he had so stated in the supplementary statement recorded by the IO in the same evening at 4:00 pm at the police station. Upon this attention of the witness should have been drawn to his supplementary statement, but it appears to have not been drawn by Ld. Defence Counsel during his cross examination.
According to PW10 SI Bansi Lal during interrogation, the accused had so disclosed before him.
Even, if the accused made any such disclosure statement, the same having been made before the police can safely be said to be inadmissible in evidence. But this fact does not adversely affect the statement of PW5 HC Joginder Singh, eye witness to the accident.
15. Ld. Counsel for the accusedappellant has submitted that according to PW5, his duty hours were from 7:00 a.m to 3:00 pm but CA No. 17/2017 Dtd. 04.03.2017 11 of 12 it has come in his cross examination that he left the spot at about 1:302:00 pm and this fact creates doubt if he was actually on duty up to 3:00 pm. In his chief examination, PW5 HC Joginder Singh clearly stated that his duty hours were from 7:00 a.m to 3:00 pm. When he stated in his cross examination to have left the spot at about 1:30 2:00 pm, this was the approximate time given by him. It is not in his cross examination that at that time he left for his house. From the spot, he might have gone to police station to record his arrival after performing his duty at TPoint. Even otherwise prompt recording of FIR on his statement, rules out possibility of any deliberations or consultations so as to secure presence of HC Joginder Singh to plant him as an eye witness.
16. In Mahadeo Hari Lokre's case (Supra), it was observed that if a pedestrian suddenly crosses a road without taking note of the approaching bus there is every possibility of his dashing against the bus without the driver becoming aware of it. Herein the pedestrian crossed the road from right to left and while the accusedappellant was taking a left turn, he could easily see the pedestrian crossing the road. Immediately, he should have applied brakes but he failed to do CA No. 17/2017 Dtd. 04.03.2017 12 of 12 so and as a result the pedestrian got crushed under the left side frontal wheel. It was duty of accused to take care of other users of road while driving the bus which he failed to do so. In view of the above observation, court finds that Ld. Metropolitan Magistrate has rightly held the accused guilty of the offence u/s 279 & 304 A IPC on account of rashness and negligence in driving the bus while taking left turn at TPoint, thereby causing death of the pedestrian, who was crossing the road from right to left.
On the point of sentence, Ld. Counsel for the appellant submits that the son of the accusedappellant committed suicide and that in view of this fact, leniency be shown while adjudicating on this point.
Be put up on 6.3.2017 for order on sentence.
Announced in the open Court on this 4th day of March, 2017 (NARINDER KUMAR) SPECIAL JUDGE, NDPS - 02 (CENTRAL) TIS HAZARI COURTS, DELHI CA No. 17/2017 Dtd. 04.03.2017