Delhi District Court
(2205) 7 Supreme Court Cases 408 Titled ... vs Hakam Singh on 23 November, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 23/01/09
Unique Identification No. 02404R0248942001
State
Versus
1) Rajesh Gupta
Son of Sh. Dhajja Ram
R/o H.No. 49A, Ashok Mohalla,
Nangloi, Delhi.
FIR No. 716/99
PS - Paschim Vihar
U/s. 270/304A of IPC
Date of Decision: 20/11/2012
Date of Order on Sentence: 23/11/2012
ORDER ON SENTENCE
23/11/2012
Present. Ld. APP for the State.
Convict Rajesh Gupta in person with counsel Sh. Salil Kumar Jha.
Heard on the point of sentence.
Learned defence counsel has contended that convict Rajesh Gupta is aged
about 40 years. He is running a chemist shop. He is having wife and two children to
maintain along with aged mother. It is further contended that he has suffered the
agony of trial since 1999. It is further contended that during these 12 years, convict
Rajesh Gupta has not committed any other offence or any such type of act of rash and
negligent driving. He is not a previous convict nor habitual offender. He is not facing
the trial of other case. It is further contended that convict Rajesh Gupta has also
SC No. 23/01/09 1/
sustained injuries in the said accident. He is the sole bread earner of the family. His
both children are aged about 9 years and 5 years. Both are girls and are school going.
It is further contended that considering the above facts and circumstances, a lenient
view be taken by releasing the convict on probation of good conduct.
On the other hand, learned Addl. PP has contended that deceased Geeta
Gupta died about one month after the marriage, due to which, her parents suffered a
lot. It is also contended that complainant be compensated for the loss of love and
affection of his daughter.
I have considered the submissions of both learned APP and learned
defence counsel for convict Rajesh Gupta. At the time of death, deceased Geeta
Gupta was aged about 22 years old and for the last 12 years, complainant has also
suffered a lot and due to the death of Geeta Gupta just after one month of her
marriage, gave a setback to her parents, so considering the age, antecedents, character
and fact and circumstances, I am of the view that no case is made out in favour of
convict Rajesh Gupta to release him on probation of good conduct, hence, this
request is declined.
Accused Rajesh Gupta has been convicted for the offences U/s.
279/304A of IPC.
Offence U/s. 279 of IPC is punishable with imprisonment for a term,
which may extend to six months or with fine, which may extend to Rs. 1000/ or
with both.
Offence U/s. 304A of IPC is punishable with imprisonment of either
description for a term, which may extend to two years or with fine or with both.
Accordingly, sentence of six months SI is imposed upon convict Rajesh
Gupta for the offence U/s. 279 of IPC.
Sentence of two years SI is imposed upon convict Rajesh Gupta for the
offence U/s. 304A of IPC.
Compensation to the tune of Rs. 7 lacs is also imposed upon convict
SC No. 23/01/09 2/
Rajesh Gupta payable to the complainant and be paid, if deposited and no appeal is
preferred within the period of limitation. In default of payment of compensation,
convict Rajesh Gupta shall further undergo six months simple imprisonment.
Compensation not deposited.
Both the substantive sentences shall run concurrently.
Convict Rajesh Gupta be remanded to serve the sentence.
Copy of the order on sentence be given to the convict free of cost.
Announced in the open court (Virender Kumar Goyal)
On 23rd of November, 2012 Additional Sessions Judge
Fast Track court, Rohini/Delhi
SC No. 23/01/09 3/
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 23/01/09
Unique Identification No. 02404R0248942001
State
Versus
1) Rajesh Gupta
Son of Sh. Dhajja Ram
R/o H.No. 49A, Ashok Mohalla,
Nangloi, Delhi.
2) Rajiv Gupta
Son of Sh. Dhajja Ram
R/o H.No. 49A, Ashok Mohalla,
Nangloi, Delhi.
3) Puspa Gupta
Wife of Sh. Dhajja Ram
R/o H.No. 49A, Ashok Mohalla,
Nangloi, Delhi.
4) Dhajja Ram Gupta
Son of Sh. Chandr Bhan Gupta
R/o H.No. 49A, Ashok Mohalla,
Nangloi, Delhi. (since expired)
5) Jawala Prasad
Son of Sh. Harphool Singh
R/o H.No. 59, Shastri Park,
Delhi51. (since expired)
6) Satpal Gupta
Son of Sh. Chander Bhan Gupta
R/o H.no. 49, Ashok Mohalla,
Nangloi, Delhi. (since discharged)
SC No. 23/01/09 4/
7) Bimla Gupta
W/o Satpal Gupta
R/o H.no. 49, Ashok Mohalla,
Nangloi, Delhi. (since discharged)
8) Suman Gupta
W/o Raj Kumar Aggarwal
R/o A2/143, Paschim Vihar,
Delhi. (since discharged)
FIR No. 716/99
PS - Paschim Vihar
U/s. 498A/304B/34 of IPC
Date of institution of the case: 07/07/2000
Arguments heard on: 05/11/2012
Date of reservation of order: 05/11/2012
Date of Decision: 20/11/2012
JUDGMENT
1. According to DD No. 30 dated 15/08/99, at about 10.40 p.m., one HC was standing in the courtyard of Chowki and suddenly, he heard noise of collusion of the vehicles from the side of Rohtak Road petrol pump, so, he reached at the spot with constable Harish and Constable Krishan Kumar and after making inquiries from the spot, he prepared rukka on this DD and got registered a case U/s. 279/337/304A of IPC.
2. During the investigation, rough site plan of the place of incident was prepared. The tanker, with which, the alleged incident had taken place, was also taken into possession. Maruti car was also taken into possession.
From the Maruti car, body of Geeta Gupta was removed to Sparsh Hospital, which was brought dead. Request for autopsy on the same was made. Brief facts of the case were prepared. Body identification statements of Satpal Gupta and SC No. 23/01/09 5/ Sriniwas Gupta were recorded.
On 16/08/99 itself, postmortem on the dead body of Geeta Gupta was conducted. Mechanical inspection of both the vehicles was also got conducted.
Notice U/s. 133 of Motor Vehicle Act was given to the owner of the tanker, who disclosed the particulars of the driver and produced the driver. Tanker was released on superdari. Maruti car was also released on superdari.
On 16/08/99, statement of Shyam Lal Gupta was recorded, wherein he did not allege anything against any person and told that it was an accident.
3. Later on, on 22/09/99, Shyam Lal Gupta made another statement to the SDM with his wife Suman Gupta. The SDM concerned conducted the inquest proceedings and on the basis of the same, directed SHO, Paschim Vihar to register a case. So, the case was converted U/s. 498A/304B/34 of IPC.
During investigation, MLC of accused Rajesh Gupta was also collected from Maharaja Agrasen Hospital. List of dowry articles was also taken into possession. Complainant Shyam Lal Gupta also produced certain receipts, which were also seized in this case. Photographs of the place were also taken at the time of alleged incident.
4. On completion of investigation, chargesheet was filed U/s. 498A/304B/34 of IPC against accused Satpal Gupta, Bimla Gupta, Suman Gupta, Jwala Prasad, Dhajja Ram Gupta, Pushpa Gupta, Rajiv Gupta @ Banti and Rajesh Gupta.
During proceedings, accused Satpal Gupta, Bimla Gupta and Suman Gupta were discharged vide order dated 09/07/2007 of the Hon'ble High Court of Delhi passed in criminal revision No. 373/02. Accused Jwala Prasad and Dhajja Ram Gupta expired and accused Pushpa Gupta, Rajiv Gupta @ Banti and Rajesh Gupta have faced trial of this case.
5. Case was committed to the Court of Session on 10/05/2001 and was received.
SC No. 23/01/09 6/ Initially, charge was framed against all the accused persons for offences U/s. 498A/34 of IPC and U/s. 304B/34 of IPC, but the same survived against accused Pushpa Gupta, Rajiv Gupta @ Banti and Rajesh Gupta only.
6. To prove its case, prosecution has examined PW1 to PW22 in all.
On completion of evidence of the prosecution, statements of all the three accused persons have been recorded. The factum of marriage of accused Rajesh Gupta with Geeta Gupta has not been denied and the factum of accident has been replied as matter of record alongwith certain facts about postmortem on the dead body, identification of dead body of Geeta Gupta and handing over the dead body. Identity of both the vehicles and dowry articles has not been disputed. Accused Pushpa Gupta, Rajiv Gupta @ Banti and Rajesh Gupta have claimed that they are innocent and have been falsely implicated in this case.
In defence, DW1 SI Savita has been examined about two DD entries.
7. I have heard learned Addl. PP for the State assisted by counsel for complainant and learned defence counsel for all the three accused persons and have gone through the material brought on record with evidence adduced. Finding qua offence U/s. 498A/34 of IPC:
8. Admittedly, initially the case was registered U/s. 279/337/304A of IPC and earlier, complainant Shyam Lal Gupta had given his statement to the SDM on 16/08/99 itself Ex. PW9/A that they were not harassed by anyone from any side nor they have any suspicion on any person and it was an accident case and they do not want any legal action against any person. Shyam Lal Gupta has been examined as PW4. In the cross examination, he has admitted that in the SDM office, his statement was recorded by the SDM. He has seen his statement Ex. PW9/A. It is the same, which was recorded by the SDM, and is bearing his signatures at point B. PW4 Shyam Lal Gupta has nowhere denied that this statement was not true and correct in any manner or was got SC No. 23/01/09 7/ recorded at the instance of any other person from the side of accused persons.
9. PW9 Sh. E. Raja Babu, the then SDM, has also deposed that he got recorded statement of Shyam Lal Gupta through some staff and it was read over to Shyam Lal Gupta in his presence, which is Ex. PW9/A. He signed the same at point A. PW9 Sh. E. Raja Babu, the then SDM, has also not been able to clarify as to why a different statement was got recorded by him of Shyam Lal Gupta on 22/09/99 and why he did not confront Shyam Lal Gupta with his previous statement dated 16/08/99 Ex. PW9/A. So, neither PW4 Shyam Lal Gupta nor PW9 Sh. E. Raja Babu, the then SDM, has been able to put forth any valid reason to discard the statement recorded Ex. PW9/A dated 16/08/99, so, the same stands contrary to the statement of Shyam Lal Gupta Ex. PW9/B and of Suman Gupta Ex. PW9/C, which were recorded later on. There is a gap of more than one month in between both the statements, so certainly, complainant and his wife were having sufficient time to improve their statements to make out a case against the accused persons. If there was any demand of dowry, then it could have been told to the SDM by complainant Shyam Lal Gupta even on 16/08/99 or immediately thereafter.
10. PW4 Shyam Lal Gupta has deposed that accused persons used to harass and torture his daughter for demand of dowry. He had given Rs. 4 lacs in cash in the marriage and other household articles. PW4 Shyam Lal Gupta has further deposed that accused persons used to taunt his daughter that she had not brought sufficient dowry in the marriage. PW4 has further deposed that Dhajja Ram (since expired) had demanded Rs. 10 lacs from him as he wanted to open a shop for his son namely Rajiv Gupta, younger brother of his son in law, as he was unemployed. The demand was made by the father in law of his daughter through his daughter, who told him about the same. The marriage SC No. 23/01/09 8/ was performed on 17/07/99 and the incident had taken place on 16/08/99. So, it cannot be said that the demand, as alleged, of Rs. 10 lacs made by accused Dhajja Ram (since expired), was not in the knowledge of PW4 Shyam Lal Gupta, but for the reasons best known to him, he did not disclose this fact to the SDM in his statement recorded Ex. PW9/A. Not only this, even PW4 Shyam Lal Gupta has stated in the cross examination that he did not disclose this fact to anyone because he had already given statement before the SDM, in which, he did not raise any suspicion on the accused persons for the death of his daughter. Certainly, statement given by PW4 Shyam Lal Gupta dated 16/08/99 Ex. PW9/A has not been denied. It is not claimed that he was under the grief and sorrow of the death of his daughter Geeta Gupta and if it was so, then the statement could have been given on the next day or within 23 days, but statements Ex. PW9/B and Ex. PW9/C had been given by Shyam Lal Gupta and his wife Suman Gupta after about more than one month, which raises suspicion about the same and are not seem to be credible.
11. PW4 Shyam Lal Gupta has also admitted in his cross examination that demand of Rs. 10 lacs was not made to him directly by any of the accused nor the same was made by the accused persons directly from his wife. PW4 has also deposed that he came to know about this fact after the cremation of his daughter in his house during conversation. Even if we presume that PW4 Shyam Lal Gupta came to know about the demand of Rs. 10 lacs after the cremation of his daughter in his house during conversation, even then, the statement has been given at a highly belated stage, which is not inspiring any confidence in any manner.
12. PW12 Suman Gupta has deposed that Satpal, uncle of his son in law, his mother Pushpa Devi and his sister Suman demanded the dowry articles SC No. 23/01/09 9/ from her daughter. Suman used to taunt his daughter by saying that her father had spent Rs. 35 lacs in her marriage and she also used to say to her daughter that articles brought by her daughter were not upto their standard. PW12 Suman Gupta has further deposed that after three days of marriage, her daughter came to their house and told that accused persons were asking her to bring money from her parents. She told her daughter that they had already spent a lot of money in the marriage and were not in a position to fulfill the demand.
13. Learned defence counsel has contended that PW12 Suman Gupta has nowhere deposed that accused Rajesh Gupta had also demanded money or had asked Geeta Gupta to bring money from her parents.
14. PW12 Suman Gupta has further deposed that after about 810 days of marriage, her both sons had gone to the house of inlaws of her daughter to bring her to their house. Her daughter Geeta came to their house and told that her inlaws were demanding Rs. 10 lacs for purchasing a shop for Rajesh as the existing shop was to be given to Banti i.e. accused Rajiv Gupta. Her daughter told her not to disclose this demand to her father because he was not well. She refused to fulfill the demand as they were not having such amount with them at that time.
15. Learned defence counsel has contended that at this time, PW12 Suman Gupta has also named accused Rajesh Gupta as one of the person, who demanded Rs. 10 lacs. In the cross examination, PW12 Suman Gupta has admitted that she had not disclosed the fact to the SDM in her statement Ex. PW9/C that after three days of marriage of her daughter, she came to their house and told that Dhajja Ram, Satpal, Banti @ Rajiv Gupta, Pushpa, Jwala Prasad (since expired) and Suman were asking her daughter Geeta to bring SC No. 23/01/09 10/ money from her parents. So, she cannot be relied upon as she clearly has made improvement in this regard.
16. Learned defence counsel has further contended that PW12 Suman Gupta has also been confronted with certain facts that about 810 days of the marriage, her both sons had gone to the inlaws house of her daughter to bring her to their house and her daughter had told her not to disclose this demand to her father as he was not well. Learned defence counsel has further contended that neither these facts are appearing in the statement recorded by the SDM Ex. PW9/C nor in her another statement Ex. PW12/DA, so, she has made material improvements to implicate the accused persons regarding the demand of dowry. Learned defence counsel has further contended that PW12 Suman Gupta has also been confronted with the fact that Satpal came in the nursing home and asked her husband to sign on some documents, which were signed by her husband as this fact is also not appearing in her statements Ex. PW9/C and Ex. PW12/DA, which negates the theory that any false statement of Shyam Lal Gupta was fabricated or that no such statement was made by Shyam Lal Gupta. More so, PW4 Shyam Lal Gupta has already deposed that he had given statement to the SDM Ex. PW9/A on 16/08/99.
17. PW12 Suman Gupta has also deposed that after the death of Geeta, she had told certain facts, which were told to her by her daughter during her lifetime regarding taunts and demands. Again, PW12 Suman Gupta has not given any date as to when she had disclosed these facts to Shyam Lal Gupta, but certainly, these had been disclosed, as admitted by PW4 Shyam Lal Gupta also that he came to know about the fact of demand of Rs. 10 lacs after the cremation of his daughter, in his house, during conversation. Even if we presume that Shyam Lal Gupta was not knowing about the demand of Rs. 10 SC No. 23/01/09 11/ lacs, then such demand was within the knowledge of PW12 Suman Gupta, but she did not given any statement to the police or to the SDM on 16/08/99 or around the said period, but later on, after about more than one month, both gave statements to the SDM on 22/09/99 Ex. PW9/B and Ex. PW9/C. The delay in recording statements of both these witnesses is not explained by the witnesses in any manner nor the SDM had confronted Shyam Lal Gupta with his earlier statement Ex. PW9/A. So, the statements Ex. PW9/B and Ex. PW9/C and also the depositions of both these PW4 and PW12 cannot be relied upon as they do not inspire confidence in any manner.
18. PW4 Shyam Lal Gupta has deposed that demand of Rs. 10 lacs was made as Dhajja Ram wanted to open a shop for his son Rajiv Gupta, younger brother of his son in law, as he was unemployed and there is only one incident deposed by PW4 Shyam Lal Gupta that accused persons used to taunt his daughter that she had not brought sufficient dowry in the marriage.
19. PW12 Suman Gupta has also deposed that money was demanded through Geeta by the accused persons and she was taunted that the articles brought by her daughter were not upto their standard and again, after about 810 days of marriage, Rs. 10 lacs were demanded for purchasing a shop for Rajesh as the existing shop was to be given to accused Banti @ Rajiv Gupta.
20. So both the witnesses have contradicted each other as to for whom the shop was to be purchased and business was to be done either for Rajiv or for Rajesh, so the contradiction is material and witnesses cannot be relied upon in this respect.
21. Even both PW4 Shyam Lal Gupta and PW12 Suman Gupta have contradicted each other as in the cross examination conducted by learned Addl. PP for the State, PW12 Suman Gupta has admitted that she had told to the SC No. 23/01/09 12/ police in her statement recorded U/s. 161 of Cr.P.C. dated 31/01/2000 that her daughter had told before her death that if Rs. 15 lacs were not given to her in laws, then they will kill her in greed of the dowry. So, even it is not certain as to whether Rs. 10 lacs were demanded or Rs. 15 lacs were demanded. No complaint regarding demand of dowry of Rs. 15 lacs or of Rs. 10 lacs was made to the police and PW12 Suman Gupta has denied the suggestion that there was no demand of dowry of Rs. 15 lacs. So, it is not known whether there were two demands of Rs. 10 lacs and Rs. 15 lacs or there was only one demand of Rs. 10 lacs, as deposed by PW4 Shyam Lal Gupta and as deposed by PW12 Suman Gupta once of Rs. 10 lacs and again of Rs. 15 lacs.
22. According to cross of PW4 Shyam Lal Gupta, as per their custom, they had gone to the house of accused persons on the 10th day of death of their daughter and delivered some articles to the accused persons. While they were leaving the house of accused persons, they desired to see their son in law, but he was admitted in Vimal Nursing Home Nangloi. They tried to visit nursing home to see their son in law as it was told that he was serious, but they were not allowed to meet him as 4050 persons were present there, which shows that even after the death of Geeta Gupta, daughter of PW4 Shyam Lal Gupta, the relations between the parties were cordial and it was so because this was an accident only, for which, Shyam Lal Gupta had already given statement to the SDM on 16/08/99 Ex. PW9/A. Not only this, even prior to that, PW4 Shyam Lal Gupta had visited on 19/08/99 and he was told that his son in law was admitted in Agrasen Hospital. He was allowed to meet accused Rajesh Gupta. He was lying there and was pretending that he was sleeping. 810 persons were present there. He stayed there for half an hour, but he did not speak with him. So, he came back from the Agrasen Hospital, which also shows that SC No. 23/01/09 13/ complainant was not having any grudge against the accused persons and he only wanted to see and talk with his son in law Rajesh Gupta.
23. Learned defence counsel has further contended that in fact, PW4 Shyam Lal Gupta demanded Rs. 10 lacs to settle the matter, whereas PW4 Shyam Lal Gupta has stated that Rs. 10 lacs were offered to him to settle the matter but he refused to accept the same, but these facts were not told by PW4 Shyam Lal Gupta to the SDM and it shows that with malafide intentions, Shyam Lal Gupta and his wife Suman Gupta have made statements before the SDM on 22/09/99 Ex. PW9/B and Ex. PW9/C to make out a false case against the accused persons.
24. In view of above discussion, the contentions of learned defence counsel are forceful. Statements of both Shyam Lal Gupta and Suman Gupta recorded by the SDM later on on 22/09/99 cannot be relied upon as delay in making both the statements has not been explained in any manner and there is a considerable delay in making such statements, which suggests that both the statements were made after discussion to implicate the accused persons. The delay is inordinate. Even both PW4 Shyam Lal Gupta and PW12 Suman Gupta have contradicted each other regarding the amount of demand. Both these witnesses have not deposed that Geeta Gupta was treated with cruelty or was harassed by the accused persons in any manner except that she was taunted. PW12 Suman Gupta has made material improvements. So, both these witnesses do not inspire any confidence to rely upon and prove that Geeta Gupta was treated with cruelty and was harassed for demand of dowry. Accordingly, prosecution has not been able to prove offence U/s. 498A/34 of IPC, hence, all the three accused namely Rajesh Gupta, Rajiv Gupta @ Banti and Pushpa Gupta are acquitted for the same.
SC No. 23/01/09 14/ Finding qua offence U/s. 304B/34 of IPC:
25. In this case, Geeta Gupta, wife of accused Rajesh Gupta, has died i motor vehicle accident, but the contentions of the witnesses and the parents of deceased Geeta Gupta are that it was an intentional accident to kill Geeta Gupta for demand of dowry. According to the deposition of PW4 Shyam Lal Gupta, on the day of incident, his daughter Geeta had come to their house with accused Rajesh Gupta and when they both had left their house, the suitcase was put in the dickey of the Maruti Car, but when they reached at the spot of accident, at that time, they had seen the Maruti car in question. PW4 Shyam Lal Gupta saw the driver seat in open condition, which was showing that accused Rajesh, who was driving the car, had already opened the driver seat before the accident, which facilitated him to lay down on the seat at the time of accident.
26. PW4 Shyam Lal Gupta has further deposed that he had seen one VIP suitcase behind the seat, which was by the side of driver, on which, his daughter Geeta had sat and was put behind the seat, so that the seat could not be opened or reclined at the time of accident. PW4 Shyam Lal Gupta has further deposed that on the day of occurrence, accused Rajesh Gupta had brought old Maruti car and had not brought the car, which was given in the marriage, but prior to that, whenever accused Rajesh Gupta used to visit their house, he used to come in the car, which was given the marriage.
27. PW12 Suman Gupta has also deposed the same facts and has stated that she had told to the police that back of the seat of the driver side was open and the adjoining seat to the driver seat was not opened/reclined and one attachi was also lying in the back of the said seat. She also saw that car had hit the back of the tanker only from one side, in which side, her daughter was sitting. PW12 Suman Gupta has further deposed that when her daughter had left the SC No. 23/01/09 15/ house, the suitcase was put in the dickey of the car, but when she reached at the spot, she saw that the said suitcase was placed in between the back seat and the back of the seat, on which, her daughter was sitting and according to these circumstances, accused Rajesh intentionally killed her daughter by hitting the car on the back of the tanker and that too only the side, on which, her daughter was sitting and he had also brought the old car and had not brought the car, which was given in the marriage.
28. PW16 Ravinder Kumar, friend of PW4 Shyam Lal Gupta, had deposed that on the day of incident, he had also gone to the house of PW4 Shyam Lal Gupta. They had taken meals and in the evening, Geeta, daughter of Shyam Lal Gupta alongwith her husband left her parental house at about 8/8.30 p.m. in a Maruti car. Her suitcase was put in the dickey of the car. Thereafter, he came back to his house.
29. PW16 Ravinder Kumar has further deposed that in the night, at about 12.00 p.m., he received a phone call from PW4 Shyam Lal Gupta regarding the accident. So, he reached at the house of Shyam Lal Gupta and from there, they reached at the place of accident. The accident took place with the side of the car, in which side, Geeta was sitting i.e. by the side of the driver seat. Driver seat was found leaned backward. He saw attachi behind the seat of Geeta. This seat was in normal condition. On seeing the condition of the Maruti car, it was visible that attachi was put behind the seat by the driver side intentionally and Maruti car was hit from that side in order to kill Geeta.
30. PW16 Ravinder Kumar has also deposed that accused Rajesh Gupta, son in law of PW4 Shyam Lal Gupta, used to visit his inlaws house in the said Maruti Zen car, but on that day, he came in an old white colour Maruti 800 car.
SC No. 23/01/09 16/
31. PW18 Virender Kumar has also deposed that at about 12 night, he alongwith his neighbour PW4 Shyam Lal and Devender Kumar and PW16 Ravinder Kumar had reached at the place of accident. At that time, he had seen Maruti 800 car and saw that driver's side seat was leaning backward. He also saw a VIP suitcase on the back of the codriver's seat. On seeing the scene from inside the car, it was appearing that son in law of Shyam Lal Gupta i.e. Rajesh had deliberately left the back seat of driver side vacant and it was also appearing that deliberately the driver seat was pushed backside and further it was also appearing that he deliberately put the suitcase on the backseat of the codriver's seat so that it could not be pushed back.
32. PW18 Virender Kumar has further deposed that when accused Rajesh Gupta had left the house of Shyam Lal Gupta, he was driving the Maruti car and Geeta was sitting beside him at codriver's seat and suitcase was kept inside the dickey of the Maruti car. He has also deposed that on that day, accused Rajesh Gupta did not bring the Maruti car, which was given to him in the marriage.
33. So in all, PW4 Shyam Lal Gupta and PW12 Suman Gupta, parents of deceased Geeta Gupta and other witnesses i.e. their friends PW16 Ravinder Kumar and PW18 Virender Kumar reached at the place of accident and had seen the VIP suitcase in the backside of the seat, on which, Geeta was sitting and due to putting the suitcase behind the seat, at the time of accident, the seat could not recline, hence, Geeta died.
34. All these witnesses have further deposed that the suitcase was put behind the seat of Geeta intentionally because at the time, when they had left the house of PW4 Shyam Lal Gupta on that day, the suitcase was put in the dickey of the Maruti 800 car.
SC No. 23/01/09 17/
35. One fact is clear from the depositions of all these witnesses that when they reached at the place of accident, Geeta Gupta and accused Rajesh Gupta had already been removed from the said Maruti car.
36. Let us see what other witnesses have deposed about the accident. PW11 HC Raj Kumar , on 15/08/99, was posted at PP Mianwali Nagar, PS Paschim Vihar. He was present there with staff. At about 10.40 p.m., he heard noise of collusion of two vehicles. He made DD entry No. 39 at about 10.40 p.m., copy of which is Ex. PW1/A. Thereafter, he alongwith PW14 Constable Krishan and PW13 Constable Harish reached at the petrol pump near Peera Garhi Chowk and found tanker No. UP13A2877 parked there on the roadside facing towards Nangloi. PW11 also saw one Maruti Car No. DL2CK5026, which had hit in the backside of the tanker from the left side. He also saw Maruti car underneath the back portion of the tanker, so, it was pulled by them. After opening the door of the Maruti car, they removed one male and one female from the car and got them admitted in Sparsh Nursing Home. The female became unconscious after reaching at the nursing home. The other injured disclosed his name as Rajesh Gupta and told that the lady was his wife. Injured Rajesh Gupta also gave one phone number and PW11 HC Raj Kumar informed his family. PW11 HC Raj Kumar has nowhere deposed that in the said Maruti car, any suitcase of VIP was found behind the seat of the female. PW11 has not been cross examined by learned defence counsel in any manner.
37. PW13 HC Harish Kumar has also deposed the same facts as of PW11 HC Raj Kumar and has further deposed that said Maruti car was removed from the back portion of the tanker and forcibly the windows of the Maruti car were opened. PW13 has also not deposed anything about the VIP suitcase lying behind the seat of deceased Geeta Gupta in the Maruti car.
SC No. 23/01/09 18/ PW13 has not been cross examined by learned defence counsel in any manner.
38. PW14 HC Krishan Kumar has also deposed the same facts and has further deposed that car was pulled by them with the help of public persons. Both the injured were taken out of the car and were removed to Sparsh Hospital.
39. PW14 HC Krishan Kumar has stated in the cross examination that Maruti car was pulled from the backside of the tanker as the same had entered in the backside of the tanker. He has also stated that tanker was standing on the roadside near pavement. The road was three lane on one side at that time.
40. PW15 Hari Krishan was working at Gautam Filling Station at Rohtak Road in the intervening night of 15.16/08/99. At about 10.30 p.m., he was filling diesel in a vehicle. He heard noise of collusion of vehicles. He reached at the spot. One tanker was standing in front of petrol pump facing towards Nangloi. He saw Maruti 800 car behind the truck, which had hit from behind. He saw one male and one female in the Maruti car sitting in front seat. The male was sitting on the driving seat and female was sitting on the codriver seat. Both injured had sustained injuries. He alongwith the police officials removed both the injured to Sparsh Hospital. Meanwhile, Rakesh Pahwa, salesman of the petrol pump, came there and he also helped in removing both the injured from Maruti car. PW15 has further deposed that police had also checked the Maruti car. One handbag was recovered from the Maruti car. In the cross examination, PW15 Hari Krishan has again affirmed that nothing was recovered from the Maruti car except one handbag after checking the dickey and inside portion of the car.
41. PW17 Rakesh Pahwa has also deposed the same facts as of PW15 Hari Krishan. He also reached at the spot and saw Maruti car in accidental SC No. 23/01/09 19/ condition, inside the back portion of the tanker. Two police constables also came there and they all, with great difficulty, pulled the car back from the tanker. They managed to open the door of the car and removed one male and one female from the car and removed them to Sparsh Hospital. PW17 Rakesh Pahwa has also identified accused Rajesh Gupta before the Court, who was present in the said Maruti car. In the cross examination, PW17 Rakesh Pahwa has stated that female was taken out from the windscreen. Seat was also pushed behind at the time of removing the girl. He did not see any article in between the seat, on which, the female was found sitting and the rear seat.
42. So, PW11 HC Raj Kumar, PW13 HC Harish Kumar, PW14 HC Krishan Kumar i.e. police officials and PW15 Hari Krishan and PW17 Rakesh Pahwa, workers of the petrol pump, had reached at the spot after the accident and removed both the injured from the Maruti car, which was pulled back from the back portion of the tanker and none of them found anything in the Maruti car except one handbag. Even according to PW17 Rakesh Pahwa, the female i.e. Geeta Gupta was taken out from the windscreen and seat was also pushed behind at the time of removing the girl, which shows that nothing was lying behind the seat, as deposed by PW4 Shyam Lal Gupta, PW12 Suman Gupta, PW16 Ravinder Kumar and PW18 Virender Kumar that a suitcase was lying behind the seat of Geeta Gupta due to which the seat did not recline at the time of accident. Even PW17 Rakesh Pahwa has specifically stated that he did not see any article in between the seat, on which, female was found sitting and the rear seat.
43. The contradiction in this respect is material. PW11 HC Raj Kumar, who reached at the spot for the first time with PW13 HC Harish Kumar and PW14 HC Krishan Kumar and PW15 Hari Krishan and PW17 Rakesh Pahwa, SC No. 23/01/09 20/ employees of petrol pump, who also reached at the spot , did not see any VIP suitcase inside the dickey or in the car. It is not deposed by all the witnesses that car was not checked in any manner. The petrol pump employees and police officials are independent witnesses. They are not interested witnesses in any manner. On the other hand, both PW4 Shyam Lal Gupta and PW12 Suman Gupta, parents of deceased and PW16 Ravinder Kumar and PW18 Virender Kumar, being friends of PW4 Shyam Lal Gupta, seems to be interested witnesses, hence, regarding the theory of lying of VIP suitcase behind the seat of deceased Geeta Gupta, they cannot be relied upon as they do not inspire any confidence in this respect.
44. Photographs of the car were taken by PW2 Raj Kumar, who has proved the photographs as Ex. PW2/1 to 5. In these photographs, front portion of the Maruti car has been found damaged from both sides and not from one side only, as deposed by PW4 Shyam Lal Gupta, PW12 Suman Gupta, PW16 Ravinder Kumar and PW18 Virender Kumar that the Maruti car was found hitting the tanker from left side only. From the photographs and depositions of the independent witnesses of petrol pump, it is also clear that tanker was in idle condition, standing on the roadside near the pavement and was parked on road.
45. PW3 Sh. J. S. Pawar has conducted mechanical inspection of both the vehicles and his reports are Ex. PW3/A and Ex. PW3/B of tanker and Maruti car respectively. According to the report of tanker Ex. PW3/A, rear bumper was found damaged and according to the report of Maruti 800 car Ex. PW3/B, front show was found completely damaged. Front main windscreen was found damaged. Front hood was found damaged. Dashboard and control panel were found damaged. Steering foundation was found damaged. Front bumper and bonnet were found damaged. Engine foundation was found SC No. 23/01/09 21/ damaged. Radiator coolant pot was found damaged. Electric system was found disturbed. Body seat were found 70% damaged. Brakes, steering, clutch and engine were found damaged. This extensive damage shows that car had not hit the tanker from behind only from left side. Had it been so, then there could not have been any occasion to damage the dashboard and control panel, which usually placed in front of the driver seat. Even steering foundation was found damaged, which was on the side of the driver seat. So, from the photographs and mechanical inspection, it is clear that the car had not hit in the back of the tanker only from left side but had hit from complete front portion and was pulled back from back portion of the tanker by the police officials with the help of public persons. Simply that accused Rajesh Gupta did not sustain any grievous injuries does not mean that he was having any intention to kill Geeta Gupta by way of causing accident in this manner. So, depositions of PW4 Shyam Lal Gupta, PW12 Suman Gupta, PW16 Ravinder Kumar and PW18 Virender Kumar cannot be relied upon to the extent that accused Rajesh Gupta with intent to kill Geeta Gupta had caused this accident and further merely on that day, accused Rajesh Gupta had brought old Maruti car does not mean that he was having intention to cause accident in such manner with the intention and purpose to kill Geeta Gupta. An ordinary person cannot be expected to take such step to kill someone else, while endangering his life also. Every one wants to play safe but here is not the circumstances. So, in this accident, even accused Rajesh Gupta could have sustained injuries of any nature or could have died but he survived as in such situation, it is not certain as to what would happen. Even after sustaining injuries, Geeta Gupta could have survived but she did not.
46. PW20 SI Balihar Singh had conducted further investigation of this SC No. 23/01/09 22/ case. He got conducted mechanical inspection of the vehicles and photographs were taken at his instance. When he reached at the spot, Maruti car had already been pulled out from the back portion of the tanker. Left hand front side of the Maruti car was found damaged badly. He saw damage in the right side back of the tanker only. He did not see any damage to the driver side of the Maruti car. Nothing was recovered from inside the Maruti Car by him.
47. So far as about the recovery of any article from inside the Maruti car, PW20 SI Balihar Singh has corroborated with other witnesses i.e. PW11 HC Raj Kumar, PW13 HC Harish Kumar, PW14 HC Krishan Kumar, PW15 Hari Krishan and PW17 Rakesh Pahwa but regarding the damage seen by him, his deposition is contrary to the photographs placed on record and proved by the prosecution and also contrary to the mechanical inspection report of the Maruti Car Ex. PW3/B. From the photographs, it seems that more damage occurred on the left side of the Maruti car and reason to that is that there was a tyre in the centre of the backside bumper of the tanker, which had caused obstruction, due to which, more anti force created and caused excessive damage to the left side in comparison to the driver side portion of the Maruti car. So, PW20 SI Balihar Singh cannot be relied upon to the extent that he did not see any damage to the driver side of the Maruti car.
48. According to PW5 Jagdish, driver of the tanker, he had parked the vehicle at about 11 p.m. and had gone to collect money from the owner of the truck from his house leaving helper Narender on the tanker. He was informed by Narender about the accident and he came back at the spot. Their tanker was pushed ahead because of the impact by the car.
49. PW6 Narender Singh has stated that at about 10.30 or 11 p.m., PW5 Jagdish had gone to the owner for taking payment, leaving him at the tanker.
SC No. 23/01/09 23/ After about 10 minutes, while he was standing by the side of the tanker, he saw that a Maruti car came from the side of Peera Garhi and struck behind their tanker. Driver of the car and lady sitting besides him were injured in the accident. He took both the driver, who was male and the lady from the car. Persons from the petrol pump and police from PP came and both were removed to Sparsh Hospital. PW6 Narender has not been cross examined by learned defence counsel in any manner.
50. According to the MLC of accused Rajesh Gupta Ex. PW10/A, he sustained injuries in this accident and according to the postmortem report of deceased Geeta Ex. PW8/A, all the injuries were antemortem caused by blunt force impact due to being involved in vehicular accident. Death is due to cranio cerebral injuries. PW8 Dr. Rajesh Gupta, who had conducted postmortem examination, has not been cross examined in any manner about the cause of death.
51. To prove offence U/s. 304B of IPC, the prosecution has to prove:
(1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(2) Such death must have occurred within 7 years of her marriage; (3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband.
(4) Such cruelty or harassment must be for or in connection with demand of dowry."
52. In this case, admittedly, death of Geeta Gupta has not been caused by burns or bodily injury, but the death has occurred within seven years of her marriage.
53. It has already been held that she was not subjected to cruelty or SC No. 23/01/09 24/ harassment by her husband or any relative of her husband for or in connection with demand of dowry and that the said cruelty or harassment was caused soon before her death.
54. The only question survives whether death of Geeta Gupta caused by motor vehicular accident comes under the definition of otherwise than under normal circumstances.
55. Except taunting that too was not directly related to the demand of dowry and only one incident of demand of Rs. 10 lacs for purchase of a shop does not amount to demand of dowry in any manner because for this demand, neither Geeta Gupta was treated with cruelty nor was harassed in any manner.
56. PW6 Narender Singh has specifically stated that he was standing by the side of tanker. He saw a Maruti car, number of which, he does not remember, came from the side of Peera Garhi and struck behind their tanker. Driver of the car and lady sitting besides him were injured in the accident. PW6 has not been cross examined in any manner by the learned defence counsel for the accused persons. It has come in the evidence that tanker was parked on the roadside near the pavement and PW15 Hari Krishan has denied in the cross examination that they had switched off the light of the petrol pump. PW17 Rakesh Pahwa has also stated in the cross examination that there were streetlights on the road but light was not much. This cross examination itself shows that the learned defence counsel wanted to cross examine the witness on the aspect of rash and negligent driving of accused Rajesh Gupta. Merely that PW17 Rakesh Pahwa had not seen the parking lights of the tanker on does not mean that the tanker was not visible, which was parked on the road. It was a big vehicle and could have been seen from a distance. The force of the impact was so that the female was taken out from the wind screen and the seat was also SC No. 23/01/09 25/ pushed behind. Damage to Maruti 800 car is also visible from the photographs and the mechanical inspection reports, which have been proved by the prosecution on record from the depositions of PW2 Raj Kumar,photographer and PW3 J.S. Pawar, mechanical inspector. The same establishes beyond reasonable doubts that accused Rajesh Gupta in the night at about 10.30 p.m. was driving the old Maruti vehicle car at a fast speed, which amounts to rash and negligent manner considering the size and age of the vehicle. Nothing has been found by the police officials or petrol pump employees that accused Rajesh Gupta has made any efforts to apply brakes before the accident in any manner, which shows that he was so rash and negligent that even when he had seen the tanker but due to high speed, he could not apply the brakes and rammed in the back portion of the tanker. Tanker was parked in the left side of the road. It was a three lane road on one side and it was night time, so there could not be heavy traffic on the road at that time.
57. Learned APP assisted by counsel for complainant has contended that this accident was caused intentionally by accused Rajesh Gupta to kill Geeta Gupta for demand of dowry and the same should be treated within the ambit "death occurs otherwise than under normal circumstances".
58. Learned APP has further relied upon certain judgments in support of his contentions which are as under:
1. (2205) 7 Supreme Court Cases 408 titled as State of Punjab V. Hakam Singh
2. 2012 CRI.L.J. 3442 titled as Rajesh Bhatnagar V. State of Uttarakhand
3. 2012 CRI.L.J. 2170 titled as Sharad V. State of Maharashtra SC No. 23/01/09 26/
4. 2012 CRI.L.J. 621 titled as Takdir Samsuddin Sheikh V. State of Gujarat
5. 2012 CRI.L.J. 585 titled as Chimmanamada Ganesh V. State of Karnataka
6. 2012 CRI.L.J. 1208 titled as Anwar Ali V. State of U.P.
59. I have gone through the judgments relied upon by learned Addl. PP. None of them are applicable to the facts and circumstances of this case.
60. On the other hand, learned counsel for the accused persons has relied upon CRL.A. 59/2012 titled as Laxmi Narain @ Rajesh V. State of the Hon'ble High Court of Delhi, wherein it has been held that:
"This Court is of the opinion that the Trial Court appears to have been overwhelmed by the unnatural death, and the cause for it, i.e. pesticide poisoning. This seems to have unduly clouded its judgment, in completely overlooking certain salient aspects, which pointed to glaring prosecution inadequacies. These were the inconsistencies as regards when the cruelty or harassment was meted out to the deceased, the nature of such cruelty, i.e. beatings, or incessant taunts, or some other form of mental torture etc. As remarked by the Supreme Court, the two offences, i.e. Sections 498A and 34 B IPC are distinct. Nevertheless, to get into the net of Section 304B, which is graver, and carries a harsher punishment, as is expected, the prosecution has to prove that the degree of cruelty or intensity was such that it led to unnatural deathof course, also concurrently linking it with dowry harassment. Apart from bland and vague assertions about "cruelty towards demand for car"
neither PW1 nor PW4 spell out what kind of cruel behavior did the accused indulge in visavis the deceased. This is quite apart from the improvement SC No. 23/01/09 27/ made by both the witnesses from the statements recorded earlier, immediately after her death. This Court feels that the Trial Court treated this aspect rather casually, by saying that since they were in a trauma, the explanation that they were confused, or misled, is acceptable. We are afraid such explanations cannot be allowed to pass muster. Here, if the deceased's relatives had suspected anything at all, regarding the accused's hand in the death of his wife, or the hand of any relative, they would have naturally mentioned about it, in the first available opportunity. If not PW1, certainly PW4 would have stated it. The latter witness's testimony also does not inspire confidence because he did not record any statement earlier than 18/03/2005, and what is more, by his own admission, did not attend the thirteenth day ceremony of his dead sister. Had he really been aware of a demand for a car, and dowry harassment, he would have informed his father contemporaneously, and taken steps to record his statement with the police. Furthermore, if indeed PW4 had been told on 9 th March, 2005, telephonically by the deceased about cruelty meted out to her by the accused and his family, he would have stated so to the police, immediately after her death. The police has not made any effort to connect this statement with any phone records. Therefore, the appellant quite rightly argues that these depositions and statements are afterthoughts."
"That leads the Court to analyze the cause of death. No doubt, it was unnatural; the body showed some blood spotting near the neck, and frothing in the mouth. The doctor PW10's testimony makes an interesting reading. He deposed that though it was possible to say whether the cause of death was electrocution, no opinion was in fact given on that aspect. That aside, he (as well as PW16) deposed that the chemical found in the viscera was commonly available, in shops, and used to kill rats (rodents). The opinion SC No. 23/01/09 28/ in the report was that death was probably caused by zinc phosphide poisoning. Now, these leave the Court with a fairly hazy picture. Even if it were accepted that the cause of death was zinc poisoning, there is nothing to rule out the plausibility of the accused's version that he thought that his wife died due to electrocution. There were no visible or external signs of injury of the kind for the police to conclude that she was subjected to beatings, or physical violence. In these circumstances, the finding of the Court that the cause of death was unnatural enough to hold the appellant criminally responsible under Section 304B IPC was reaching a conclusion without the necessary factual and legal foundation. That the death was unnatural cannot be the exclusive basis for a convictions for that offence. Here, as held earlier, there was no acceptable evidence of cruelty, or dowry harassment, to lead to a conviction even under Section 498A IPC. However, to hold that the accused was guilty for a graver offence under Section 304B IPC was to ignore the necessary ingredients of that offence, and reach the conclusion only by focusing the mind on the nature of death. That it was unnatural or suicidal, is not enough to constitute the offence, if the other elements necessary to attract a conviction are not proved, as is the case here; the prosecution failed to prove the essential elements constituting the offence."
61. In view of above, I am of the considered opinion that prosecution has not been able to prove the ingredients of Section 304B of IPC in any manner. The contentions of learned APP assisted by counsel for the complainant are not helpful in any manner to bring the death of Geeta by accident within the ambit "death occurs otherwise than under normal circumstances" because if we go through the definition of Section 304B of IPC, then it refers to the death caused by burns or bodily injury or otherwise than SC No. 23/01/09 29/ under normal circumstances, which refers homicidal or suicidal death and not motor vehicle accident death.
62. In view of above, prosecution has not been able to prove the ingredients of Section 304B of IPC in any manner against the accused persons as Geeta Gupta died due to motor vehicle accident and further she was not subjected to cruelty or harassment in any manner soon before her death at the hands of the accused persons except one incident of taunting that too was not directly related to the demand of dowry and witnesses in this respect are not inspiring any confidence due to contradictions and material improvements made by them with further fact that witnesses PW4 Shyam Lal Gupta and PW12 Suman Gupta have failed to explain about the delay in recording their statements dated 22/09/99, hence, cannot be relied upon in any manner. Accordingly, all the three accused namely Rajesh Gupta, Rajiv Gupta @ Banti and Pushpa Gupta are acquitted for the offence U/s. 304B/34 of IPC.
63. Now, the question before the Court is whether accused Rajesh Gupta can be held guilty for offences U/s. 279/304A of IPC, for which, no charge has been framed against him.
64. It has been held in AIR 2008 (Suppl.) SC 400 titled as Dinesh Seth V. N.C.T. of Delhi, wherein it has been held that if accused charged only for offence of dowry death, then conviction U/s. 498A of IPC is not improper. It has been further held that if appellant defended himself against the allegations of cruelty and witnesses have been cross examined on the same, then it cannot be said that nonframing of specific charge has prejudiced the accused or failure of justice has taken place on that account.
65. It has also been held in AIR 2004 SC 1990 (1) titled as Dalbir SC No. 23/01/09 30/ Singh V. State of U.P. that in absence of charge U/s. 306 of IPC, conviction of accused U/s. 306 is permissible if the same has not resulted in failure of justice and further, it has been held that if accused has also been confronted with the features of prosecution case in his statement recorded U/s. 313 of Cr.P.C.
66. It has also been held in 2007 AIR SCW 854 titled as Virendra Kumar V. State of U.P. that in case, if a specific charge has not been framed against the accused but circumstances relatable to the said section were clearly put to the accused during his examination U/s. 313 of Cr.P.C. and incriminating material relating to the same was specifically brought to the notice of the accused during such examination, then conviction of accused for such charge not framed already is not improper in view of Section 464 of Cr.P.C.
67. Prosecution has examined driver and conductor of the tanker with which accident had taken place. Photographs of the place of accident had also been taken and have been proved in the evidence. Mechanical inspection of both the vehicles was got conducted. Neither photographer PW2 Raj Kumar nor PW3 J.S. Pawar has been cross examined in any manner, hence, their testimonies are unrebutted and unshaken. PW5 Jagdish was working as driver on the tanker. The tanker was parked at the place of incident at about 10.30 or 11 p.m. Helper Narender was left at the tanker. On receipt of information about the accident, PW5 Jagdish came back at the spot and found their tanker pushed ahead because of the strike by the car, which shows that the impact of the hitting by Maruti car was so forceful that even it moved ahead a bigger and heavy vehicle like tanker from its place, where it was parked and the front portion of the Maruti car went inside the back portion of the tanker. PW5 Jagdish has not been cross examined by learned defence counsel in any manner, so his deposition is unrebutted and unshaken. PW6 Narender Singh was present SC No. 23/01/09 31/ at the spot. In his presence, accident had taken place. He saw Maruti car coming from the side of Peera Garhi, which struck behind the tanker. PW6 Narender Singh has not been cross examined by learned defence counsel for accused persons, hence, his testimony is unrebutted and unshaken. PW8 Dr. Rajesh Gupta had conducted postmortem examination on the dead body of Geeta Gupta and has proved the report as Ex. PW8/A. He has also not been cross examined in any manner. So, his testimony about the cause of death is unrebutted and unshaken. All these witnesses are independent witnesses and nothing has been brought on record that they were having any motive to depose falsely against the accused persons.
68. PW13 HC Harish Kumar reached at the spot after the accident. PW14 HC Krishan Kumar had also reached at the spot with PW13 HC Harish Kumar and PW11 HC Raj Kumar and he has stated in the cross examination that tanker was standing on the roadside near the pavement and road was three lane on one side, which shows that there was sufficient space to drive the car on the right side of the road but as accused Rajesh Gupta was driving the car in a rash and negligent manner, so, he hit behind the tanker in the extreme left side of the road, where the tanker was parked. PW15 Hari Krishan reached at the spot from the petrol pump. In the cross examination, he has denied the suggestion that they had switched off the lights of the petrol pump, which also proves that there was sufficient light to see the tanker from a considerable distance.
69. PW17 Rakesh Pahwa also reached at the spot from the petrol pump. In the cross examination, he has stated that there was streetlight on the road but light was not much, which shows that besides the lights of the petrol pump, there was streetlight, hence, sufficient light was available to see the tanker from SC No. 23/01/09 32/ a considerable distance.
70. Testimonies of these witnesses were put to accused Rajesh Gupta in his statement recorded U/s. 313 Cr.P.C., wherein accused Rajesh Gupta has not denied that he was not driving the Maruti Car at that time. Regarding the question about investigation conducted by PW11 HC Raj Kumar, PW13 HC Harish Kumar and PW14 HC Krishan Kumar, it has been replied that it is a matter of record. Regarding photographs taken by PW2 Raj Kumar and the depositions of PW5 Jagdish and PW6 Narender Singh, it has been stated that the same are matter of record and the only defence has been disclosed by the accused is that the truck was negligently parked there.
71. Despite putting this evidence regarding rash and negligent driving of accused Rajesh Gupta to him and further about the accident in statement recorded U/s. 313 Cr.P.C., nothing has been disclosed by accused Rajesh Gupta in his defence as to under what circumstances, accident had taken place.
72. From the depositions of the witnesses i.e. photographer, mechanical Inspector, postmortem report and PW6 Narender Singh, eye witness of the accident, it is proved that accused Rajesh Gupta was driving the said Maruti car in a rash and negligent manner at that time and caused accident, while hitting in the back of the tanker. It has not been suggested to any of the witness that tanker was parked negligently on the road. From the photographs and also from the depositions of the witnesses, it is clear that the tanker was parked by PW5 Jagdish on the extreme left side of the road and it was three lane road, hence, accused Rajesh Gupta has not been able to raise any plausible explanation.
73. To my mind, all the evidence brought on record was within the knowledge of accused Rajesh Gupta and the same was put to him in his SC No. 23/01/09 33/ statement U/s. 313 Cr.P.C., so, nonframing of charge U/s. 279 and U/s. 304A of IPC has not caused any prejudice to him in defending himself and in view of the judgments relied upon, accused Rajesh Gupta can be held guilty and convicted for offences U/s. 279/304A of IPC.
74. In view of above, from the unrebutted and unshaken testimonies of independent witnesses, prosecution has been able to prove offences U/s. 279 and 304A of IPC against accused Rajesh Gupta. Accordingly, accused Rajesh Gupta is held guilty and convicted for the offences U/s. 279/304A of IPC.
Announced in the open court (Virender Kumar Goyal)
On 20th of November, 2012 Additional Sessions Judge
Fast Track court, Rohini/Delhi
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