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Delhi District Court

Manphool Singh S/O Sh. Surat Ram vs The State (Nct Of Delhi) on 13 October, 2010

                                       1

 IN THE COURT OF SHRI S. K. SARVARIA DISTRICT JUDGE­VIII & 
             INCHARGE, ADDITIONAL SESSIONS JUDGE,
                          ROHINI COURTS,  DELHI



Criminal Appeal No. 11/2010                                          

Manphool Singh S/o Sh. Surat Ram, 

R/o Vill. Dang Kalan, P.S Tosam, 

Distt. Bhiwani, (Haryana).                                     ... Appellant 


                                  VERSUS 


The State (NCT of Delhi)                                     ... Respondent 




JUDGMENT

1. The present appeal under Section 374 of the Criminal Procedure Code is filed against the judgment dated 2/08/2010 and order on sentence dated 4/08/2010, passed by Ld. Metropolitan Magistrate, whereby the appellant herein was convicted for offences under Sections 279/304­A IPC and sentenced to undergo 6 months R.I. for offence u/S. 279 IPC; and 2 year R.I. and fine of Rs. 7,000/­ for offence u/S. 304­A IPC and in default of payment of 2 fine to also undergo S.I. of 4 months. Aggrieved with the same, the present appeal is preferred by the appellant.

2. The contention of the learned counsel for the appellant is that the learned trial court did not properly appreciate the facts of the case and the evidence on record. He submitted that the learned trial court erred in not examining PWs Ct. Kishan Bahadur, who was witness of the recovery; Ct. Chand Kiran, Eye­witness of the alleged incident; Ct. Sunil Dutt, who assisted Ct. Chand Kiran in removing bodies of the injured/deceased from the spot and HC Ram Lal, who carried out the inspection of the offending vehicle. Since HC Ram Lal, who carried out the inspection of the offending vehicle, was not examined thus the mechanical inspection report cannot be read into. It was also pointed out that there were descrepancies as to the presence/visit of PW2 SI Virender Singh viz­a­viz the statements of PW2 SI Virender Singh and PW5 SI Kishan Chand/I.O. it was submitted that during the entire duration 3 of trial the prosecution failed to exhibit/prove the FIR. It was urged that there are several inconsistencies in the statement and cross­ examination of the PW4 Om Prakash but the Ld. Trial court blindly followed it and convicted the appellant. It was contended that there were also several contradictions in the statements of prosecution witnesses, which the learned trial court failed to take note of. It was urged that the prosecution story is nothing but a cock and bull story of the police officials to falsely implicate the appellant. It was also urged that the sentence and fine imposed by the trial court is also exorbitant and disproportionate.

3. Refuting the same, Ld. Chief Public Prosecutor submitted that there is no infirmity in the judgment and the order of conviction passed by the learned trial court. He urged that the present appeal has no merits and should be dismissed forthwith.

4. I have heard Ld. Counsel for the appellant and the Ld. Chief Public Prosecutor for the State and perused the record. 4

5. In the instant case there is no dispute vis­à­vis the fact that at the alleged time of the accident, the accused was driving the bus bearing registration no. HR 29 C 4903, the offending vehicle.

6. It is well established principle of law that the prosecution story shall stand on its own leg. In this regard in Bhagirath v. State of M.P.­ AIR 1976 SC 975 it was held as under:

The prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court, on its own, make out a new case for the prosecution and convict the accused on that basis.

7. It is equally well settled that the prosecution has to prove the case beyond reasonable doubt. Rashness or negligence 5 is essential requirements for proving the guilt of the accused under Ss. 279/304­A/338 IPC.

8. On perusal of the record it is manifest that PW4 Om Prakash, the eye­witness stated in his examination­in­chief that the bus driven by the accused was coming in a fast speed and in a negligent manner and then hit the deceased who were crossing the road along with the PW4. The statements of PW2 SI Virender Singh and PW5 SI Kishan Chand/I.O. that whether or not PW2 visited the accident site is immaterial in the present case as he is a formal witness and even otherwise such discrepancies in their statements are of no effect as due to lapse of time between the date of the accident and deposition before the court, the human memory tends to fade. In this regard in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat A.I.R. 1983 (SC) 753 it was held:

".................Over much importance cannot be attached to minor discrepancies. The reasons are obvious : (1) By and large a witness cannot be expected to possess a 6 photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time ­ sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the 7 sequence of events which take place in rapid succession or in a short time span.

A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment.

The sub­conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him ­ Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.

6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when the all important "probabilities­factor" echoes in favour of the version narrated by the witnesses."

In Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble AIR 2003 SC 4567, it was observed by the Apex Court as follows:

"27. As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr., AIR 1981 SC 1390, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc. (2002 (4) JT (SC) 186); Gangadhar Behera and Ors. v. State of Orissa, 2002 (7) Supreme 276 and Rizan and Anr. v. State of Chhatisgar (2003 (2) SCC 661 ."

9. Clearly, due to lapse of time between the date of accident and the date of the evidence/statement before the Court, some minor/normal discrepancies are bound to creep in the testimony of witnesses.

10. Be that as it may, from the aforesaid it is manifest that the accused appellant blindly, without seeing as to where he was driving or without blowing horn to caution others on the said street bumped in to the deceased persons and even after hitting the deceased did not stop and was apprehended by the police after he had driven for a few moments ahead/was fleeing the accident spot and due to his negligence/ speed and his callous act resulted in the death of the victims. Clearly, the appellant was rash and negligent.

11. The deceased persons Satti Devi & Bhateri died due to vehicular accident is proved from the statements of PW3 S.K. Chakarvarti, who conducted post­mortem of deceased persons 10 Satti Devi & Bhateri. No cross­examination of the said witness was conducted by the defence despite giving opportunity, thus evidence of PW3 remains unrebutted.

12. Mere non­disclosure of injuries on PW4 Om Prakash to the police at the time of recording of his statement will not demolish his statement as it is common to the human nature that when he is in a situation when his mother and wife are critical he would not have time to think of his own pain and injuries.

13. Also, non­examination of PWs Ct. Kishan Bahadur, who was witness of the recovery; Ct. Chand Kiran, eye­witness of the alleged incident; Ct. Sunil Dutt, who assisted Ct. Chand Kiran in removing bodies of the injured/deceased from the spot and HC Ram Lal, who carried out the inspection of the offending vehicle, is of no effect as it has come in the evidence of PW5 that HC Chand Kiran had expired on 13/5/2004 and address of Ct. Sunil Dutt could not be ascertained as he had been discharged from the 11 services and HC Ram Lal has been transferred to Rohtak Depot and has retired from services and could not be served at his local address.

14. Therefore, clearly, the deceased persons Satti Devi & Bhateri died due to the rash and negligent act of the accused and hence conviction of the accused under Section 304­A IPC is upheld.

15. One technical question that arises is whether conviction and sentence both under section 279 and section 304 A IPC is permissible under the law as the latter section is the aggravated form of the former section. If a person is guilty of an offence under s 279, IPC, and death is also caused as a result of the negligent act, he will be guilty of the offence under s 304A, IPC, because an offence under this section is a minor offence which is included in Section 304A, IPC. (See Esco Mathew v State of Kerala 1967 Ker LJ 227). An accused, convicted under s 12 304A, IPC, therefore, cannot be convicted under this section as the latter is a minor offence. (Shiva Ram v State 1965 All 196, (1965) 1 Cr LJ 524; Ranjit Singh v State of Haryana 1988 Chand Cr Cases 516 (P&H)) IPC. Our Delhi High Court has also taken a similar view and it was held that there was no need to impose any separate sentence for minor sentence under sections 279 because the offence under sections 304A and 338, IPC, are similar offence in aggravated forms. Thus the sentence imposed under section 279 was set aside (See Abdul Hameed v State (1990) 41 DLT 306, 307; Hamid Khan v State 1996 (1) Crimes 465 (Del). Therefore, where a person is convicted and sentenced under section 304­A IPC a separate conviction under Section 279, for the minor offence which is included in the offence under s 304­ A, is not justified. (See, Shiv Ram versus State AIR 1965 All

196). In the light of these authorities the conviction and the sentence imposed upon the appellant/convict/accused by the 13 learned trial court for the offence under Section 279 IPC are liable to be set aside.

16. Coming to the order on sentence, the Ld. Trial court awarded 6 months R.I. for offence u/S. 279 IPC; and 2 year R.I. and fine of Rs. 7,000/­ for offence u/S. 304­A IPC and in default of payment of fine to also undergo S.I. of 4 months.

17. From the aforesaid discussion, it is clear that offence under S. 279 IPC is not made out and thus conviction of appellant and sentence under S. 279 IPC of 6 months R.I. are set aside.

18. As far as sentence for conviction under S. 304­A IPC is concerned, the trial court awarded 2 year R.I. and fine of Rs. 7,000/­ for offence u/S. 304­A IPC and in default of payment of fine to also undergo 6 months R.I. . Considering that though accident took place in 1995 but since two victims died in accident due to rash driving of appellant, the sentence awarded by the learned trial court seems to be appropriate. However, since 14 appellant is now aged about 60 yrs and has suffered trial for about 15 yrs, the sentence of rigorous sentence of 2 yrs is altered into sentence of 2 yrs of simple imprisonment under Section 304­A IPC, while maintaining the sentence of fine. However, benefit of set­off under S. 428 CrPC should be given to the appellant.

19. In view of the above discussion, the appeal is partially allowed only to the extent that conviction and sentence under Section 279 IPC are set aside. The appeal is dismissed for conviction under Section 304­A IPC and sentence is awarded. The judgment be sent to the server (www delhidistrictcourts.nic.in). The trial court record be returned along with the copy of this judgment. The file of the appeal be consigned to the record room. Announced in the open court on this 13th day of October, 2010 (S.K.SARVARIA) Additional Sessions Judge, Rohini Courts: Delhi