Delhi District Court
State vs Suresh Kumar on 5 April, 2008
1
IN THE COURT OF SH KULDEEP NARAYAN M.M. PHC NEW DELHI
STATE Vs.Suresh Kumar
FIR no.425/96
PS D.Cantt
U/S 279/304 A IPC
JUDGMENT
a. Sl. NO. of the case : 384/2
b. Date of commission of offence : 8.9.96
c. Date of institution : 06.12.96
d. Name of the complainant : SI D.P.Yadav
e. Name of the accused. : Suresh Kumar S/o Sh. Chandgi
Ram R/o Vill. Asandhapur,
Nandhnor PS Rai, Distt.
Sonepat, Haryana.
f. The offence complained of : 279/304 A IPC
g. The plea of the accused : Pleaded not guilty
h. Order reserved on : 05.03.08
i. Final order : Convicted
j. Date of order : 05.04.08.
Brief statement of the reasons for the decision:
1. The brief facts of the prosecution case are that on 08.09.96, at around 3.30 pm at Gurgaon road, opp. gate R.R.Hospital within the jurisdiction of PS Delhi Cantt accused Suresh Kumar, while driving the Truck bearing Registration No. DL 1GA 1167 in a rash and negligent manner struck against a scooter bearing registration No.DDM 7954 caused the death of Mohd. Mukhtar, Mohd Raseed and Mohd Farhan 2 and thereby accused Suresh Kumar committed an offence punishable U/S 279/304 A IPC. On the basis of rukka an FIR was registered in the present case and case was investigated.
2. After completion of the investigation,a police report U/S 173 Cr.P.C. was filed in the court and the accused Suresh Kumar was summoned to face trial.
3. A notice U/S 251 Cr.P.C. was given to the accused Suresh Kumar on 02.03.98 to which he pleaded not guilty and disclosed his defence. Therefore, the case was fixed for prosecution evidence.
4. In order to prove its case, prosecution examined 13 witnesses. PW1 Dt. B.Swain, PW2 Kesar Zaved, PW3 Mohd Iqbal S/o Mohd Bilal, PW4 Fazlur Rehman, PW5 Mohd Iqbal S/o Mohd Ismile, PW6 Kumari Uroosa, PW7 SI Lakhi Ram, PW8 HC Mangej Singh, PW9 Mohd Ali, PW9 ASI Bablu Oraol, PW10 Ct. Raghubir Singh, PW11 SI D.P.Yadav and PW12 Ct. Manoj in all .
5. After completing the prosecution evidence, statement of accused U/S 313 raid with Sec. 281 Cr.P.C. was recorded in which accused admitted that on 8.9.96 at around 3.30 pm at Gurgaon road, opposite Gate of R.R.Hospital he was driving truck No. DL1GA 1167 but denied that he struck against one scooter No. DDN 7954 and caused 3 death of Mohd Mukhtar, Mohd Raseed and Mohd Farhan. He took the plea that on the date of accident it was raining heavily and the scooter had lost its balance and a car coming from behind the scooter had hit the scooter. He also examined one Shri Bhagwan as DW1 in his defence.
6. I have heard Sh. Alok Dubey, Ld. APP for the State and Ms. Manjeet Arya Advocate, counsel for the accused person and have gone through the entire material available on record.
7. To bring home the charge U/s 279 read with Section 304 A IPC prosecution got examined 13 witnesses in all. PW 1 Dr. B.Swain conducted postmortem examination on the dead body of Mohd Raseed and proved the postmortem report EXPW1/A. He stated the cause of death to be Haemorrhage and shock following ante mortem injuries due to blunt force impact. He also conducted the postmortem examination on the dead body of Mohd Mukhtar and Mohd Farhan and proved the reports as EXPW1/B and EXPW1/C. He opined the cause of death to be haemorrhage and shock. PW1 was not cross examined by the counsel for the accused and accordingly his testimony remained uncontroverted and reliable.
8. PW3 Mohd Iqbal had identified the dead body of his brother Mohd Mukhtar and proved his statement in this regard as EXPW3/A. 4
9. PW4 Fazlu Rahman identified the dead body of deceased Farhan and proved his statement EXPW4/A in this respect. Similarly, PW5 Mohd Iqbal identified the dead body of Mohd Rashid and proved his statement EXPW5/A in this regard. PW9 Mohd Ali also identified the dead body of Mohd Mukhtar and proved his statement as EXPW9/A. All the aforesaid four PWs were also not crossexamined. However, their testimonies are formal in nature.
10. PW7 SI Lakhi Ram had conducted the mechanical inspection of offending truck bearing registration No. DL 1GA 1167 and scooter No. DDM 7954. He proved his report EXPW7/A and EXPW7/B. As per EXPW7/A, which is in respect of offending truck No. DL 1GA 1167, scratch marks of scooter were found on left side front bumper of the truck. PW7 was vaguely cross examined which remained inconclusive and his testimony could not be impeached in any material aspect.
11. PW8 HC Mangeh proved the copy of FIR as EXPW8/A and factum of registration of FIR against the accused.
12. PW9 ASI Dablu Oraol was posted in PCR as HC and was on duty on Z60 from 8 am to 8 pmon 8.9.96. At about 3.30 pm one person had come to him and told him about accident in front of R.R.Hospital. Consequently PW9 had gone to the spot of accident where he found one man and one child in dead condition. He further 5 stated that another child was injured and one two wheeler scooter bearing registration No. DDM 7954 was lying in accidental condition. He further stated that a truck bearing registration No. DL !GA 1167 was also found ahead of scooter which was stopped by the public persons. PW9 picked up the injured and brought him to S.J.Hospital where the Doctor had declared child to have been brought dead. It is clear from the testimony of PW9 that the factum of accident with scooter No. DDM 7954 has been established. In his cross examination he also stated that Airforce officers had stopped the offending truck. Undoubtedly, truck bearing registration no. DL1GA 1167 was found at the spot stationary.
13. PW10 Ct. Raghubir Singh also deposed that on receiving the news of accident on 8.9.96 he had also gone along with SI Dharampal and Manoj went to the spot where he saw one scooter No. DDM 9854 and two dead bodies, one of man and other of child. PW10 had left Ct. Manoj at the spot and had taken the rukka to PS. He also stated about apprehension of the offending truck and its driver. He also identified the accused to be the person driving the offending vehicle at the relevant time. During his cross examination he failed to disclose the name of the person who informed him about the accident having been caused by the truck. The factum remains that his testimony could be relied upon so as to establish the factum of accident and the presence of dead bodies of one man and one child at the spot. He also stated about the presence of eye witnesses and recording of his statement at the spot by the IO. As per his version, the eye witnesses had got the 6 offending truck stopped with the help of Airforce officials. It is clear that no Airforce official has been made a witness in the present case. However in my considered opinion, this does not dilute the prosecution case in any material aspect as this fact has also come in the testimonies of other PWs.
14. PW11 is SI D.P.Yadav who deposed about reaching the spot of accident where a two wheeler scooter bearing registration No. DDM 7954 was lying on the road and two dead bodies ,one of male, aged about 3035 years and another of a child of the age of 7 years was also lying in a pool of blood. He also found a truck bearing registration No. DL1GA 1167 stationed at some distance and accused, driver of the offending truck, present on the spot. He further stated that a girl aged about 9 years was weeping on the gate of R.R.Hospital who stated to him about causing of accident. PW11 had prepared site plan on the pointing out of Javed who has been examined as PW2 being the eye witness. PW11 had completed the other formal aspect of investigation i.e. preparation of arrest memo, seizure memo EXPW10/A, personal search memo EXPW10/D, seizure memo of two wheeler scooter and offending truck as EXPW10/C and EXPW10/D. In his cross examination he also stated about apprehension of the accused by public persons, though he did not record the statement of any of the public witness. PW11 was also informed that Army personnel had apprehended the accused. It is another matter that he could not meet with any such army personnel at the spot. PW`11 also stated about the presence of eye witness Javed who remained at the spot for about 45 7 minutes.
15. PW12 is Ct. Manoj Kumar. He stated that in pursuance of call regarding accident he had gone to the spot along with SI Dharampal and Ct. Raghubir Singh where he found scooter No. DDM 7954 in accidental condition and one young man along with a child were also lying there. The driver of the offending vehicle was also found who was apprehended by the public persons. He also identified the accused to be the driver of the offending vehicle. He had taken the rukka from the spot and got the case registered. During his cross examination, he stated about the presence of eye witnesses at the spot who had met with the IO. His testimony also goes to show about the presence of eye witness at the spot.
16. Having gone through the testimonies of aforementioned witnesses, it is clear that there is no dispute that an accident had occurred on 8.9.96 at around 3.30 pm at Gurgaon Road, opp. Gate of R.R.Hospital with scooter no. DDM 7954 wherein three persons namely Mohd Raseed, Mophjd Mokhtar and Mohd Farhan died. It is also established that the truck No. DL1GA 1167 was found stationary at the spot. Another fact which has been established so far pertains to apprehension of accused, being the driver of the offending truck by the public persons. It is an admitted fact that the accused was behind the steering wheel of truck no. DL1GA 1167 on the relevant date and time. The only point for determination in the present case remains whether the accused was driving the truck No. DL1GA 1167 at the relevant time in a rash or negligent manner and had caused the accident with scooter 8 No. DDM 7954 resulting in the death of aforesaid deceased persons.
17. In this respect, PW2 Kesar Javed was examined by the prosecution who stated himself to have witnessed the accident. PW2 had categorically deposed that while he was going on his scooter on 8.9.96 at about 3.30 pm and was proceeding towards Palam, he noticed another two wheeler scooter bearing no. DDM 7954 going ahead of him on which two children and one person were riding. One small girl was also standing on the front foot board of scooter. PW2 further stated that one truck bearing registration no. DL1GA 1167 had come at a very fast speed from behind him prompting him to take his scooter to a side to save himself. However the truck on crossing the red light struck the scooter going in front of him and crushed the rider of the scooter when they had fallen down on the road. PW2 further stated that he chased the truck and one army gypsy also blocked the path of the truck, prompting the truck to stop. PW2 categorically deposed about having seen the driver of the truck and he identified the accused in the court to be the person who was driving the offending truck. During his cross examination, the version of PW2 could not be impeached by the counsel for the accused. He deposed that the truck was about 1012 feet away from him when he saw for the first time coming it at a very fast speed. He denied the suggestion put by the counsel for the accused that the two wheeler scooter had skidded down and a maruti car had run over the person who had fallen down. PW2 also stated about the presence of child Uroosa at the spot. 9
18. Kumari Uroosa was examined as PW6 who also stated about the truck being driven at a very fast speed and having run over their scooter on which she was traveling. She also stated that she received injuries when the truck had struck the scooter of her father. PW6 was also subjected to cross examination wherein she admitted that she could not see as to what had hit two wheeler scooter. It is noteworthy here that the examination in chief of PW6 wherein she categorically deposed about the truck hitting the scooter of her father was recorded on 2,12,99 whereas she was cross examined on 4.2.2000 i.e. after about three months. PW6 was a girl child of 10 years old and in my considered opinion the period of three months was sufficient to bring some contradictions in her testimony which are but natural and which only goes to show that she was not a tutored witness. Such contradictions are bound to arise when a witness, specially a child witness deposes in a natural way and this in a way, lend more credibility to the prosecution version. Since the creditworthiness of PW2 Kesar Javed and PW6 Kumari Uroosa, eyewitnesses to the accident, could not be impeached in any material aspect, in my considered opinion, both the witnesses are a witness of truth and reliable.
19. Taking the entire circumstances and evidence , both oral and documentary in to consideration, it is clear that the prosecution succeeded in establishing the guilt of the accused in the present case and accordingly in bringing home the charge U/S 279/304 A IPC to the accused.
20. In his statement recorded U/S 313 read with Sec. 281 10 Cr.P.C. accused took the defence that due to heavy rain, scooter in question had lost its balance and a car behind the scooter had hit the scooter. The accused also produced one Shiv Bhagwan in his defence and got him examined as DW1. DW1 was helper on the offending truck and deposed that he had seen a two wheeler scooter which was going ahead of them and one car which was about 23 feet behind the scooter. As per his version, the car was at a very high speed and had hit the scooter and had fled away. DW1 had also spoken about stopping of truck by the Air force Gypsy near Subroto Park but he stated that the truck was stopped by the army persons due to mistaken identity and police falsely implicated the accused in the present case. In his cross examination DW1 failed to tell the number of the car which was allegedly being driven at a very high speed and had caused the accident with the scooter in question. The fact remains that mechanical inspection report EXPW7/A states about scooter scratch marks on the left side bumper of the offending truck which was not explained by the DW and thus negate his testimony. Accordingly the testimony of DW1 is not meritorious to establish that the accused was not guilty at the relevant time.
21. Taking the entire facts and circumstance, in my considered opinion, the prosecution successfully brought home the charge U/S 279/304A IPC to the accused beyond all reasonable doubts. Accused is held guilty of the offence punishable U/S 279/304A IPC and is convicted.
Pronounced in open court. (KULDEEP NARAYAN) Dated 05.04.08 M.M.PHC. NEW DELHI 11 12 5.4.08. Present: APP for the State. Accused Satish Kumar present on bail.
Vide my separate judgment accused Satish kumar is held guilty of the offence punishable U/S 279/304A IPC.
List the matter for Argument and order on sentence on dt.16.4.08.
M.M.N.D./5.04.08 13 14