Delhi District Court
) That On 19.08.2011 At About 9.30 Am Near ... vs Unknown on 27 September, 2014
IN THE COURT OF MS.PURVA SAREEN, METROPOLITAN MAGISTRATE01, SOUTH, SAKET COURT, NEW DELHI State v. Jagjivan FIR No.178/11 PS Fatehpur Beri U/s 279/304A/465/471 IPC JUDGMENT
Date of Institution : 19.04.2012
Date of Commission of offence : 19.08.2011
Name of the complainant : SI Bansi Lal
Name & address of the accused : Jagjivan S/o Sh. Kailash Yadav
R/o Village Pure Dunda, PS Mohan Ganj
District Raj Barelly, UP.
Offence complained of : U/s 279/304A/465/471 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted u/s 279/304A IPC
Acquitted u/s 465/471 IPC
Date of reserve for judgment : 11.09.2014
Date of announcing of judgment : 27.09.2014
Vide virtue of this judgment I propose to dispose off the case U/s 279/304A/465/471 IPC.
State v. Jagjivan Page 1 FIR No.178/11 , PS Fatehpur Beri In brief the case of prosecution is as under:
1) That on 19.08.2011 at about 9.30 am Near Shamshan Ghat, PNB Bank, Main Road, Fatehpur Beri, New Delhi within the jurisdiction of PS Fatehpur Beri accused jagjivan was found driving (truck) bearing no.HR30E7731 in a rash and negligent manner so as to endanger human life and personal safety of others and while so driving he hit against one vehicle (motorcycle) bearing no.DLUP16V9133 which caused into death of its driver namely Pawan Kumar Mishra and further found in possession of forged DL which was used by him as genuine the accused thereby committed an offence punishable U/s 279/304A/465/471 IPC.
2) Investigation was done. Charge sheet was prepared and filed before the court. Accused was summoned. Accused made an appearance before the court and documents were supplied to the accused. Thereafter notice was served upon the accused U/s 279/304A/465/471 IPC to which accused pleaded not guilty and claimed trial.
3) In order to prove the charge against the accused, the prosecution examined ten witnesses as under : (I) PW1 Sushil Kumar Mishra was uncle of the deceased Pawan Kumar Mishra who identified the dead body of the deceased at mortuary vide State v. Jagjivan Page 2 FIR No.178/11 , PS Fatehpur Beri memo Ex.PW1/A. Accused did not prefer to cross examine the witness. (II) PW2 Radhey Shyam Mishra was brother of the deceased Pawan Kumar Mishra who identified the dead body of the deceased at mortuary vide memo Ex.PW2/A and received the same vide memo Ex.PW2/B. Accused did not prefer to cross examine the witness. (III) PW2 Jitender Sharma deposed before the court that on 19.08.2011 he was going to Chhatarpur on his motorcycle. At about 9.30 am when he reached near PNB, Main Road, Fatehpur Beri he saw that one tractor with trolley (blue colour) going ahead of him in high speed and rash and negligent manner hit one motorcycle from left side, in consequence of which motorcyclist along with motorcycle fell down. The driver of the tractor stopped the tractor at the distance of 10 paces. Accused was apprehended by public persons at the spot. Someone called 100 number after which PCR came at the spot and took the injured to hospital. Motorcyclist received injuries on his chest. Witness further stated that the incident had happened due to fault of accused as he was driving the tractor in high speed.
Witness correctly identified the accused and case property before the court.
State v. Jagjivan Page 3 FIR No.178/11 , PS Fatehpur Beri In his cross examination by learned defence counsel it is stated by witness that he had called the police after the incident. PCR had not reached at the spot in his presence. His statement was recorded by the police official at his residence but he did not remember the exact date. He was traced as he had made PCR call. He did not remember the numbers of vehicles. He did not remember the make of the tractor. He remained at the spot for about 20 minutes till arrival of one police person. The bike was being driven at the speed of 6070 kmph. He did not know the name of police person reached at the spot. Injured was around 4045 years old. Many persons gathered at the spot. Witness further stated that he cannot say whether the statements of either of them were recorded by the police or not. Witness further stated that his statement was recorded after about a month. His signature was obtained on his statement. His statement was not read over to me.
(IV) PW4 Ct. Sunder Lal deposed before the court that 19.08.2011 he was on patrolling duty along with Ct. Mukesh. At about 9.30 am when they reached near PNB Bank they saw public persons gathered and one PCR Van was also there. One motorcycle DL....9133 (Hero Honda) again said UP16......9133 and one Mahindra Tractor whose number he did not remember, were found in accidental condition. Injured was taken to hospital State v. Jagjivan Page 4 FIR No.178/11 , PS Fatehpur Beri by PCR. One police officials handed over him one revolver, one mobile phone, one wrist watch belonged to the injured. He accompanied the injured to hospital. IO ASI Bansi Lal along with one constable came at the spot from hospital. He handed over the said articles to IO. Thereafter, IO went to hospital. After one and half hour IO returned back at the spot and prepared rukka and got it registered through a constable. He signed the documents prepared by IO. IO seized the articles. The motorcycle and offending tractor were also seized. Accused was arrested and his personal search was conducted. IO recorded his statement.
Witness correctly identified the accused and case property in the court.
In his cross examination by ld. Defence counsel it is stated by witness that he had made departure entry while leaving for patrolling. 1012 persons were present when they reached at the spot. Two PCR officials were also present there. He cannot tell the make of revolver handed over to him by one of the PCR official. Mobile was of Nokia. Rukka was sent through Ct.Bir Singh. He did not remember the exact number of documents signed by him at the spot.
(V) PW5 Ct. Bir Singh Kumar deposed before the court that on 19.08.2011 at about 9.45 am on receipt of DD No.12 A regarding accident he along with State v. Jagjivan Page 5 FIR No.178/11 , PS Fatehpur Beri IO ASI Bansi Lal reached at the spot where one motorcycle belongs to UP number and one tractor bearing no.HR....7731 were found in accidental condition. They came to know that injured was already taken to hospital by PCR. Ct. Sunder Lal met them at the spot who handed over IO one revolver along with 15 cartridges, one mobile phone, one broken wrist watch belonged to the injured. Driver of offending vehicle was also present at the spot. Leaving him and Ct. Sunder at the spot, IO went to hospital. After one and half hour IO returned back at the spot and prepared rukka and got it registered through him. He came back at the spot after registration of FIR and handed over original rukka and copy of FIR to IO. IO seized the articles of injured and both the vehicles. Accused was arrested and his personal search was conducted. Accused was interrogated and his disclosure statement was recorded. DL of the accused, copy of insurance, cover note and RC were also seized. IO recorded his statement.
Witness correctly identified the accused and case property in the court.
In his cross examination by learned defence counsel it is stated by witness that his statement was record by IO on the same day. He did not remember the name of revolver. Seizure memo was prepared by the IO. (VI) PW6 T.Siddiqui was mechanical inspection who proved the mechanical State v. Jagjivan Page 6 FIR No.178/11 , PS Fatehpur Beri inspection report of both vehicles vide memo Ex.PW6/A and Ex.PW6.B. Accused did not prefer to cross examine the witness. (VII) PW7 was Dr. Sameer who proved the MLC bearing no.271849 of deceased vide memo Ex.PW7/A. In his cross examination by learned defence counsel it is staed by witness that IO did not obtain his specimen signature on Ex.PW7/A. (VIII) PW8 Ct. Rajender deposed before the court that on 21.09.2011 he had joined the investigation of present case along with SI Bansi Lal. Accused was arrested and his personal search was conducted by IO in his presence. Nothing was found from the personal search of accused. After medical examination accused was produced before the court and thereafter he was sent to JC. IO recorded his statement.
Accused did not prefer to cross examine the witness. (IX) PW9 ASI Dalbir was duty officer who proved the FIR vide memo Ex.PW9/A and endorsement thereupon vide memo Ex.PW9/B. Accused did not prefer to cross examine the witness. (X) SI Bansi Lal deposed before the court that 19.08.2012 upon receipt of State v. Jagjivan Page 7 FIR No.178/11 , PS Fatehpur Beri DD No.12A regarding accident near Shamshan Ghat/PNB Bank, Main Road, FP Beri at about 9.30 am he along with Ct. Vir Singh went to the spot where Ct. Sunder met them and one motorcycle bearing No.DL16V9133 Hero Honda Splendor and tractor with trolley bearing no.HR30E7731 were found stationed and in accidental condition. Ct.Sunder handed over one revolver of 32 bore bearing no.F3940 loaded with five live cartridges and ten live cartridges with one arm license in the name of Pawan Kumar to him. Ct.Sunder also produced driver of the offending vehicle whose name was revealed as Jagjivan. Ct. Sunder also produced one Nokia mobile and one wrist watch. Meanwhile, DD No.18A from AIIMS Trauma Center received to him. The case property and accused was handed over to Ct. Bir Singh at the spot and he left for the hospital. In the hospital he collected MLC of injured Pawan who was declared as brought dead by concerned doctor. No eye witness met at the hospital. He came at the spot. No eye witness was found at the spot. He prepared rukka and got it registered through Ct. Bir Singh. After registration of FIR he came back at the spot along with original rukka and copy of FIR and handed over to him. Accused was interrogated and he was arrested and his personal search was conducted. Disclosure of accused was recorded. Articles of injured, motorcycle and tractor were seized. Deceased was got identified by his brother and nephew. Case property was deposited into malkhana. Mechanical inspection of both State v. Jagjivan Page 8 FIR No.178/11 , PS Fatehpur Beri vehicles were got conducted and report thereof was attached with the file. Articles on the person of deceased was handed over to his brother Radhey Shyam. Dead body of deceased was handed over to his brother Radhey Shyam. Documents of offending vehicle i.e. RC, insurance with cover note were seized. DL of accused was seized. On the repeated try to contact with caller, on 29.08.2011 caller/eye witness Jitender Sharma came at PS. His statement u/s 161 CrPC was recorded. Relevant documents of offending vehicle and DL of accused was got verified. DL was found fake as per report of concerned authority, RTO Raibareli, UP. Report was attached with the file. Accused was again arrested and his personal search was conducted. Supplementary disclosure statement of accused was recorded. Notice u/s 133 was given to owner of offending vehicle. He made endorsement thereon. Photographs of both the vehicles were taken on the spot and attached with judicial file. Site plan was also prepared on the day of incident. Statement of witnesses were recorded. Investigation was done. Challan was prepared and filed before the court.
Witness correctly identified the case property and accused before the court.
Accused did not prefer to cross examine the witness.
4) Thereafter PE was closed. Statement of accused was recorded to which State v. Jagjivan Page 9 FIR No.178/11 , PS Fatehpur Beri accused did not lead any evidence in his defence.
5) I have heard the arguments addressed by the prosecution and counsel for the accused. I have gone through the documents on record and heard the contention of both the parties.
6) In the present case, PW3 Jitender Sharma i.e. eye witness of the case deposed before the court that on the day of incident offending vehicle was being driven by the accused in a rash and negligent manner with high speed and accident was happened due to fault of the accused Jagjivan. The accused was later on identified by the eye witness. The negligence is entirely attributed to the accused as it has come in the statement of PW3. The minor discrepancies as mentioned by the counsel for the accused not fatal to the prosecution.
7) In Vadivelu Thevar v. The State of Madras (1957 SCR 981) the Hon'ble Supreme Court is Court had divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. The first two categories they pose little difficulty but in the case of the third category of witnesses, corroboration would be required. It is a sound and wellestablished rule of law that the State v. Jagjivan Page 10 FIR No.178/11 , PS Fatehpur Beri court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely :
i) Wholly reliable.
ii) Wholly unreliable.
iii) Neither wholly reliable nor wholly unreliable.
8) In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses.
Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.'
9) Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). The Hon'ble Supreme Court State v. Jagjivan Page 11 FIR No.178/11 , PS Fatehpur Beri held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
10)The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the case of S.N. Hussain v. State of Andhra Pradesh, AIR 1972 SC 685 as under :
"Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted".
State v. Jagjivan Page 12 FIR No.178/11 , PS Fatehpur Beri
11) It has been further observed in S.N. Hussain (Supra) as under:
"Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case".
12) In the case of Shakila Khader v. Nausher Gama, AIR 1975 SC 1324, it was observed by Hon'ble Supreme Court as under:
"In main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic and the attempt to overtake the other vehicle resulting in going to the wrong side of the road and being responsible for the accident."
13)Further in case of Paras Nath v. State of Delhi, 2004 Cr LJ 731 at 732 (del)., it was observed as under:
"Rashness or negligence can be determined from the manner in which the accident had taken place. Even the site plan prepared by the investigator which was exhibited as PW.... speaks about the negligence attributed to the petitioner".
State v. Jagjivan Page 13 FIR No.178/11 , PS Fatehpur Beri
14)As far as section 465/471 IPC is concerned, the prosecution could not produce any oral or documentary proof to prove the same.
15)In view of the above discussion, I am of the opinion that prosecution has proved the guilt of the accused qua rash and negligent driving which caused into death of one Pawan Kumar Mishra. Accordingly the accused is held guilty and convicted for the offence punishable u/s 279/304A IPC. However, in the absence of any oral or documentary proof, the accused stands acquitted for the offence u/s 465/471 IPC.
The matter is now listed on the point of sentence for 13.10.2014.
Announced in the open court (PURVA SAREEN)
th
on 27 September 2014 METROPOLITAN MAGISTRATE01
SOUTH, SAKET COURT, NEW DELHI
State v. Jagjivan Page 14
FIR No.178/11 , PS Fatehpur Beri