Delhi District Court
State vs . Harpal Singh on 6 September, 2007
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Harpal Singh
FIR No. 393/89
PS : NDLS
U/s. 279/304A IPC
JUDGMENT
a) The Sl. No. of the case : 550/03
b) Date of Institution : 26.06.2003
c) Name of the complainant : Shri Virender Singh
d) The name & add. of accused : Harpal Singh, S/o. Balbir Singh,
R/o. Village Zassiu,
PS Sadar Rohtak, Dist. Rohtak,
Haryana
At Present
DTC Batch No. 19629,
Kalkaji Depot, New Delhi.
e) Date of commission of
offence : 05.05.1989
f) Offence complained of : U/s. 279/304A IPC
g) Plea of accused : Pleaded not guilty
h) Date on which judgment
reserved : 25.08.2007
i) Final Order : Convicted
j) Date of Judgment : 06.09.2007
BRIEF STATEMENT OF REASONS FOR DECISION :
1. Briefly stated the facts as to dispose of the case in hand are that on 05.05.1989 at about 12.25 AM near Taxi Stand on road Page No. 1 New Delhi Railway Station accused was driving a bus No. DEP 9315 of route No. 43 in a manner so rash or negligent as to endanger human life and personal safety of others and while so driving over run a child causing his death not amounting to culpable homicide and thereby accused committed offence punishable U/s. 279/304 A IPC.
2. After completion of investigation the challan was put to the court of trial. The copy of challan was supplied to accused and a prima facie case was made out against accused. Accordingly on 16.07.1992 notice U/s. 251 Cr. P.C. for offence punishable U/s. 279/304A IPC was framed out against accused to which accused pleaded not guilty and claim trial.
3. Prosecution in all to prove its case cited as many as 12 witnesses in the list of witnesses and examined 8 witnesses. Before proceeding to any conclusion let we first analyse the testimony of prosecution witnesses.
4. PW1 Shri Jagdish Lal Sachdeva is a public witness who testified in his examinationinchief that on 1989 he was present at taxi stand near PS NDLS. He was called to the PS and asked to sign few papers. No accident had taken place in his presence. Later on he had seen a dead body on the patri near the taxi stand. He had not made any statement to the police. At that stage statement mark X was read over to PW1 who refused to have made such statement to Page No. 2 the police.
APP for State declared PW1 as hostile and cross examined him. In his cross examination by APP, PW1 stated that the accident had taken place with a DTC bus', however, the driver ' was not there. He denied that he was deposing falsely to save the accused.
5. PW2 HC Mangey Ram testified that on 05.05.1989 he was posted as Constable at PS NDLS. At about 12.00 PM he was on duty at Paharganj Side Railway Station and he was present at Main Delhi Station area near the Taxi parking side. At about 12.30 midnight a DTC Bus No. DEP number of which he did not remember, came from entry gate of the railway station and on the turn of Footpath the rear wheel of the bus ran over the boy who was sleeping over the footpath. The said boy sustained injuries and died immediately. The driver could not maintain balance and due to the rash driving the accident took place. The DTC bus was droven by the accused who is present on that day, and today in the court. Driver was caught hold and an emergency call given regarding the accident to the police station. Then SI Zile Singh came at the spot. Then a tehrir was written after taking the statement and handed over to him for registration of the case and he went to PS and a case was got registered against the accused vide FIR No. 393/89. He came back Page No. 3 to the spot with copy of FIR and orignal tehrira and handed over it to the IO. Bus was taken into possession including the licence of the driver vide Ex. PW2/A signed by him at point A. Accused was arrested.
In his cross examination by accused, PW2 denied the suggestion that accused himself had gone to the police case and he was falsely implicated in the present case. Further cross examination was deferred at the request of accused. Thereafter PW2 again turned up on dt. 03.02.2006 for his further cross examination, but accused did not cross examine him despite opportunity granted.
6. PW3 Shri Virender Singh is one of the public witnesses. He testified that on 05.05.1989 one DTC bus bearing No. DEP9315 ran over a boy who was sleeping on the foortpath. One person namely Lehnga was also with him whose real name he did not know. He also identified the accused present in the court and submitted that the DTC was droven by him. The said boy died on the spot. The occurrence took place due to the fault of the driver. His statement was correctly recorded by the police. The memo Ex. PW3/B bears his signature through which the bus was seized by the police after the incident.
PW3 was cross examined by the Ld. Defence Counsel and in the cross examination it is submitted that the other vehicle Page No. 4 were also parked at the time of accident and many people were coming and going. He saw the bus before the alleged incident. He had seen the bus about 5/7 feet prior to the place of accident. He had seen the bus before the accident a few seconds. There were many other drivers also standing there and Lehnga had seen the occurrence. He was on the right side of the bus. He informed the police people as they were already there. Police people usually remain at taxi stand. He did not know who has recorded his statement. Some of the written work done at the spot and some at police station. He signed his statement of 2 pages after reading it. He had seen the bus taking turn. The place of incident just near the turning point, at a distance of 3/4 feet. The patri was of 5 feet in width. Only the deceased was sleeping at the place of accident. The rare wheel of driver side climbed over the patri. The bus got stopped at a distance of 5/7 feet away from the place of incident as they asked him to stop, saying that somebody has come under the rear wheel of bus and driver stopped the bus there. 3/4 police officials were there at the time of doing proceedings. He refused to say about the age of deceased. The vehicles were coming but there was no crowd at that time.
7. PW4 Shri Hans Raj, ATI proved the duty slip Ex. PW4/A and stated that as per this report Harpal Singh was driver on duty. He Page No. 5 issued the duty slip after going through the record.
8. PW5 Ct. Sushil Kumar testified that he took the photographs of the incident which are Ex. P1 to P6 on 05.05.1989 near taxi stand and the negatives are Ex. P7 to P12.
In his cross examination, PW5 stated that at about 8/10 persons were present when he took the photographs. He took the photographs of DTC bus and the dead body of a boy aged about 14/15 years and blood stained tyres. The dead body and the bus was standing at the same place and there was no distance.He was on the both the tyres front and rear of left side.
9. PW6 Shri Mool Chand, Asstt. Foreman of DTC testified that he inspected the DTC bus bearing No. 9315 and conducted mechanical inspection of same and he found that the head l lights, break, driver view mirror, starring, indicator light, clutch were in OK condition. There was no fresh damages and the bus was OK for road worthy. His report in this regard is Ex. PW6/A.
10. PW7 SI Rajwant Sharma is the Duty Officer who booked the FIR vide Ex. PW7/A and made its endorsement on original rukka Ex. PW7/B sent by SI Ziley Singh through Ct. Mange Ram.
11. PW8 Shri Rakesh Kumar Sharma, Record Clerk, Aruna Ashif Ali Government Hospital, Delhi proved the postmortem report No. 1038 dated 19.5.1988 conduced by Dr. D.N. Sharma. He Page No. 6 identified the signatures of Dr. D.N. Sharma as per record. He exhibited the attested copy of postmortem report as Ex. PW8/A.
12. PWs 1, 2, 4 and 8 are not cross examined by the Ld. Defence Counsel assuming that they are formal witnesses in nature and examined just to prove authenticity of documents as collected and prepared during the course of investigation. After closure of the prosecution evidence on 05.02.2000 case was fixed for statement of accused. Accordingly on 11.05.2000 statement of accused U/s. 313 Cr. P.C. was recorded in which accused pleaded that he has been falsely implicated in this case and wanted to lead defence evidence.
13. Thereafter on 26.08.2003 Ld. APP moved an application U/s. 311 Cr. P.C. for recalling of PW2 HC Mange Ram, Dr. D.N. Surna, IO Rajwant, Ct. Ram Kumar and Ct. Dharam Pal and same was disposed of vide order dated 18.08.2005 whereby the submissions of Ld. APP were inclined to recall PW2 HC Mange Ram as well as Dr. D.N. Sarna. Accordingly PW2 HC Mange Ram was recalled for his further examination on 03.02.2006 and for the purpose of proving the postmortem report PW8 Shri Rakesh Kumar Sharma, Record Clerk was examined on behalf of Dr. D.N. Sharma and after examining this again on 28.03.2007, fresh statement U/s. 313 Cr. P.C. of accused was recorded wherein accused taken the same plea and opportunity was also granted to accused to lead DE but no Page No. 7 defence witness came forward.
14. I have heard Ld. APP for the State and Counsel for the accused and have gone through the material placed on record as well as authority cited.
15. Ld. APP for State submitted that prosecution has examined all material witnesses to prove the guilt of the accused and charges leveled against him and the testimony of prosecution witnesses are enough to brought home the guilt of accused. Since the IO SI Zile Singh has expired on 20.11.1997 as per the report as such there is no possibility to examine him but his nonexamination will not fatal the case of the prosecution. The testimony of over overwhelming witnesses are enough to prove the case of the prosecution. Ld. APP for State relied upon the observations held in by the Apex Court in a judgment titled as " Ambika Parsad V/s. State" 200(1) AD SC 141 wherein it was observed that :
" non examination of the IO or the police witness will not hamper the case of the prosecution unless there are other overwhel ming evidence placed on record. "
It is further submitted by the Ld. APP that from the deposition of the prosecution witnesses the chain of evidence is being completed with respect to the identity of the accused and offending vehicle as well as the fact that accused driven the bus upon the Page No. 8 footpath in the rash and negligent manner with the result rear wheel of the bus ran over the deceased who was sleeping on the footpath, therefore, accused is liable to be convicted in accordance with law.
16. On the other hand Ld. Defence Counsel submitted that PW1 Jagdish Lal Sachdeva turned hostile and has not supported the version of the police rather he has gone to the extent of saying that no statement was made by him. This witness is the eye witness of this case but this witness nothing deposed against the accused. PW2 Shri Mange Ram stated that rear wheel of the bus ran over the boy who was sleeping on the footpath and his cross examination was deferred and the evidence of the witness cannot be taken into consideration and as per the rukka there is a contradiction between rukka and his deposition in. As per rukka front and rear wheel of the bus ran over the boy. It is further submitted that PW3 Vijender Singh stated that DTC bus ran over the sleeping boy on the footpath and one person namely Lenga was also there. The name of the driver was given by the driver himself. He further stated that in his presence the photographs were also obtained. The patri was of 5 feets in width. At the time of incident only the deceased was sleeping and he refused to say whether any other person was also sleeping or not. He stated that the rear wheel of the driver side climed over the patri. He further stated that the bus stopped at the distance of 5 to 7 feets away from Page No. 9 the place of occurrence as they asked him to stop and the bus driver stopped the bus. It took about 3 minutes between the distance of 5 to 7 feets. Again said that it took few seconds to cover up the distance. He further stated that the taxi stand was on the right side of the entry. He could not say of what was the age the deceased.
It is further submitted by the Ld. Defence Counsel that there is no evidence how much height of the pavement / patri and also there is no evidence of broken of patri and damage from the bus and there is also no blood found at the spot, therefore, the version of the prosecution witnesses is not supported the prosecution case. There is no presumption of negligence, or rashness if a person is knocked down and killed or injured. There is also no such presumption on the basis of Maxim "Res Ipsa Locuitor" . There is also no such presumption that the accident had taken place. Criminality is not to be presumed or assumed. It always has to be proved by the prosecution against accused beyond reasonable doubt. The burden always lies on prosecution to bring all necessary materials on record in all criminal cases in establishing the guilt of the accused, beyond doubt. This case is also no exemption to this rule. Merely that an accident of this case in the manner as alleged had taken place is not sufficient to prove negligence or rashness on the part of the accused. It may be purely accidental due to variety of reasons and causes i.e. Page No. 10 Wet, slippery, unsafe or uneven road or sudden burst of tyre and so on without negligence of accused or sudden development of mechanical defect in vehicle about which the accused was unaware and so on. It was the duty of the prosecution to prove negligence or rashness of accused in this case by cogent, reliable and credible evidence and other material beyond reasonable doubt but it failed to discharge its duty, burden and obligation cast upon it in this particular case and this benefit would, therefore, go to accused. The whole prosecution case is also doubtful, unnatural and improbable.
It is further submitted by the Ld. Defence Counsel that PW5 Ct. Sushil Kumar stated that he reached at the spot about 12.30 / 1.00 AM. He do not know who is the IO of this case. He do not know the place of incident and its distance from the entry. He cannot tell whether it is in the right side or in the left as he was taken on the motor cycle straight away to the place of accident. About 8 or 10 persons of the public were present there when the statement were taken. He further stated that the dead body and the bus was standing on the same place and there was no distance. He further stated that left tyres of the bus were blood stained and he took the photos of the same. He further stated that it was on the both tyres i.e. front and the rear.
It is further stated by the Ld. Defence Counsel that the Page No. 11 doctor of this case had not been examined and in the absence of non examination of the doctor who performed the postmortem report, examination of dead body, cause of death in this case is not proved by the prosecution, therefore, no conviction can be sustained under Section 304A IPC. IO of this case has also not been examined by the prosecution, in the absence of nonexamination of IO, the site plan, recovery memo and inspection report of offending vehicle, however, not proved by the prosecution, these documents could have corroborated the testimony of the witnesses. Further omission on part of the prosecution to examine IO without any satisfactory explanation. It is further submitted that the story of prosecution is completely falsified by the statement of PW5 Sushil Kumar. PW3 says something else while PW5 says something else. If the statement of PW5 is to be relied upon then PW3 becomes false and the statement of PW5 cannot be relied as the photographs have not been placed on record. The version of two PWs is that the rear wheel has climbed while PW5 says that it is both the rear and left wheel that proves the falsity of the statement of PW3. In the absence of the photographs the statement of PW5 cannot be looked into. Further the statement of PW2 cannot be looked into as none of the PWs has talked about him. None of the PWs statement he was also the witness at the time of incident. There is no other statement of any Page No. 12 other person regarding the rash and negligent driving and the fact that the driving was rash and negligent is clear from the fact that PW3 in the last paragraph has stated that he took 3 minutes to cover a distance of 57 feet and he again said that it took few seconds to cover a distance of 57 feet. The driving by no stretch of imagination can be said to be rash and negligent.
It is further stated by the Ld. Defence Counsel that the best evidence have been withheld from the Hon' ble Court. Even the evidence has not been collected. The place of accident is also not proved hence the same could have been proved by the IO and who has not come. It is further pertinent to submit here that it is a cardinal principle of criminal jurisprudence that accused is always innocent unless contrary is proved, and the prosecution has to stand its own legs and it has to prove its case beyond doubt against accused and it cannot take the benefit of no defence or false or wrong weak or contradictory or inconsistent or humorous defence of accused and if it fails, the benefit of doubt would go to accused. In a criminal trial, the burden of providing everything essential to the establishment of the charge against the accused. Therefore, the accused is liable to be acquitted. Ld. Defence Counsel also relied upon following citations :
a) 1996 JCC - 677, case titled as Niranjan Singh Vs. State (Delhi Administration) : Page No. 13 " Eye witness stated that on his shouting the bus stopped at a distance of 8 to 10 feet from the spot - It shows that the appellant was driving the bus at a normal speed - Merely fact that the deceased fell from the bus and come under its rear wheel would not be enough to make the petitioner responsible for the death of the deceased."
b) 74 (1998) Delhi Law Times 607, case titled as "S uresh Kumar Vs. State" : " ..... Doctors who examined and treated injured of conducted post mortem not examined - Nor proved that death caused due to accidental injuries - Finding of conviction under Section 304 A, IPC not based on evidence - Conviction and sentence illegal, unwarranted by law and unsustainable."
c) 1996 Cr. L.J. - 2020, case titled as " Thana Ram Vs. State of Haryana" : " Rash and negligent driving - Conviction of accused based on sole testimony of prosecution witness - Site plan, recovery memo, not proved by prosecution - These docume nts could have corroborated Page No. 14 testimony of said witness - Further omission on part of prosecution to examine investigation Officer without any satisfactory explanation - Caused prejudice to accused in his defence -
Conviction liable to be set aside."
d) 1998 Cr. L.J. 3170, case titled as "S haikh Mohammed Salim Karimullah & Ors. Vs. State of Maharashtra" : " Examination of accused - Circumstanc es appearing against accused - Though vital, not put to accused - Cannot be used against him."
17. In view of the submissions made by Ld. APP for State and Ld. Counsel for accused, before coming to any conclusion let we go through the necessary provisions of law : " Section 279 IPC states as under : Rash driving or riding on a public way : Whosoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprison me nt of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
Page No. 15
" Section 304 A IPC states as under : Causing death by negligence. Whosoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprison me nt of either description for a term which may extend to two years, or with fine, or with both."
18. In view of the above provisions of law, the prosecution has to prove beyond reasonable doubt that the accused was driving the offending vehicle on the said date, time and place and it is further proved beyond reasonable doubt whether the death of deceased was direct nexus of rash & negligent driving with the offending vehicle.
Let the evidence lead by the parties be analysed which are as under : PW1 Shri Jagdish Lal Sachdeva no doubt has alleged that no accident had taken place in his presence but he has seen the dead body on the patri near the taxi stand and in cross examination also stated that "accident has been taken place with a DTC bus". PW2 HC Mangey Ram who was posted as Constable at NDLS is a chance witness who stated that on 05.05.1989 testified that at about 12.30 midnight a DTC Bus No. DEP number of which he did not Page No. 16 remember, came from entry gate of the railway station and on the turn of footpath the rear wheel of the bus ran over the boy who was sleeping over the footpath. PW3 Shri Virender Singh also stated that on 05.08.1989 one DTC bus bearing No. DEP9315 ran over a boy who was sleeping on the foortpath, therefore, the factum of accident has not been rebutted by Ld. Defence Counsel. The accused in his statement recorded U/s. 313 Cr. P.C. simply denied the alleged incident and in the cross examination of any of the PWs it has not been suggested that no accident has been taken place, therefore, the testimony of witnesses has proved that on 05.05.1989 at about 12.25 AM near Taxi Stand on road New Delhi Railway Station a bus No. DEP 9315 caused accident while running over a child who was sleeping on the footpath. There is nothing contrary to the alleged incident nor any kind of evidence brought on record in rebuttal. Even the DTC official i.e. PW4 Shri Hans Raj and PW6 Shri Mool Chand have also corroborated the testimony of other PWs.
19. Evidence of eye witnesses including the injured witness cannot be discarded on the basis of vague evidence of other witness who was subsequently declared hostile as observed in case titled as " Ram Bhukan Vs. State" cited in AIR 1994 SC 561.
The maxim falsus in uno falsus in omnibus i.e., false in one thing, false in every thing is neither a sound rule of law nor a rule Page No. 17 of practice. So testimony of the prosecution witnesses which is found to be false in respect of one fact cannot be rejected outright as a whole, it can be accepted on cumulative evidence and other material on record as held in case titled as " Prithvi Nath Pandey Vs. State"
1994 Cr. L.J. 3623 (All.).
Similarly, mere fact that the evidence of one witness was found unsafe for conviction is not per se a ground for rejecting the whole of the testimony of the prosecution because the maxim falsus in uno falsus in omnibus cannot be mechanically applied , as held in case titled as " Nadodi Jayaraman Vs. State" AIR 1993 SC 777.
20. Now we come to the second aspect regarding the rash and negligent act of the accused which has to be proved by the testimony of eye witnesses as well as from the circumstancial evidence. Ld. Defence Counsel while submitting in his written arguments admitted that it is a purely accidental case due to variety of reasons and causes i.e. wet, slippery, unsafe or uneven road or sudden burst of tyre and so on without negligence of accused or sudden development of mechanical defect in vehicle about which the accused was unaware and so on.
The prosecution to rebut this contention has examined PW-2 HC Mangey Ram who categorically stated in his examination- in-chief that "DTC Bus No. DEP number of which he did not Page No. 18 remember, came from entry gate of the railway station and on the turn of Footpath the rear wheel of the bus ran over the boy who was sleeping over the footpath ". PW-6 Shri Mool Chand, Assistant Foreman who conducted mechanical inspection of the bus has also stated that ".......he found that head lights, break, driver view mirror, starring, indicator light, clutch were in OK condition. There was no fresh damages and the bus was OK for road worthy. My report in this regard Ex. PW 6/A bears my signature at point A."
PW-1 who though became hostile yet also corroborated the testimony of the other PWs in his cross examination in which he stated that "... the accident had taken place with a DTC bus". So the factum of accident through DTC bus driven by the accused is not denied. Rather it has been admitted that the accident had taken place, the reasons may be something else than the negligence of the driver. The contention of Ld. Defence Counsel with respect to the hostile witness i.e. PW-1 that his deposition should not be read against the accused, but the credibility of the hostile witness cannot be thrown away altogether. My this view is strengthen with the Apex Court's case tilted as "Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh" cited in 1991 Crl. L.J. 2653 in which the Hon'ble Apex Court observed as under :-
"We have, therefore, no hesitation in Page No. 19 concluding that he had ample opportunity to identify the assailants of Gulab, his presence at the scene of occurrence is not unnatural nor in his statement that he had come to purchase vegetables unacceptable. We do not find any material contradictions in his evidence to doubt his testimony. He is a totally independent witness who had no cause to give false evidence against the appellant and his companions. We are, therefore, not impressed by the reasons which weighed that (with) the trial Court for rejecting his evidence. We agree with the High Court that his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of the assailants."
21. The Ld. Defence Counsel further submitted that there are material contradictions among the testimony of the prosecution witnesses as discussed in the preceding para of judgment. To this effect I am of the view that no doubt there are some contradictions here and there, but same are minor one and which does not go to the root of the case and hamper the testimony of the prosecution witnesses. As far as the contradictions with respect to which wheel of bus was run over by the body of the deceased, height of the pavement, whether patri was damaged or not, distance of the dead Page No. 20 body of the deceased and bus where it stopped etc. are concerned, I am of the view that these contradictions will not change the factum of accident and the circumstances of the case. It is further that the event which has happened could not have been changed its result. The case is pertaining to the year 1989 and the testimony of the prosecution witnesses who came forward to depose in the court after lapse of several years, certainly slight variations will be there in their deposition and even from the most truthful and natural witness as these minor contradictions are bound to occur due to lapse of time. To this effect I rely upon observations held in a judgment cited as 1998 IADC Delhi 639 titled as " State Vs. Ajay Kumar Singh" where Hon' ble Mr. Justice Arun Kumar and Hon' ble Mr. Justice N.G. Nandi observed as under : " That the evidence of partly true and partly false witness to that extent is considered reliable and corroborative. We need not to tally / discard the evidence of PWs, their evidence has corroborative value. The witnesses are not interested witnesses, PW 3 is a natural witness. Even the most of the witnesses might have some discrepancies or minor contradictions in their own statement regarding property. If witnesses speak orally and give eye Page No. 21 witness in their own words, there are bound to be slight variations. One cannot lose sight of normal human behaviour.
Each individual has his own perception of an event and likes to describe it in his or her own way coupled with this, the lapse of time between the incident and the stage of appearing as a witness in court also accounts for some minor variations and discrepancies are bound to be there in statement of even most honest and truthful witness."
I also rely upon the observations taken in case titled as " State of U.P. Vs. Ballabh Dass" AIR 1985 SC 1384 that : " ....What important in this connection is to find out if there are any material discrepancies. If the discrepancies go to the root of the matter they will have some bearing on the prosecution case.
Otherwise if they do not go to the root of the matter and if they are not on material aspects of the prosecution case, then case is not effected"
22. Ld. Defence Counsel has further pointed out towards the fact that no independent witness of the occurrence has been joined by Page No. 22 the Investigating Officer despite they were being available at the spot. In this regard I am of the view that prosecution has examined PW-1 Jagdish Lal Sachdeva and PW-3 Virender Singh. Both these witnesses are independent witnesses. PW-2 HC Mangey Ram is also a chance witness who was present at the time of alleged accident as such the contention so raised by the Ld. Defence Counsel is also not plausible. It does not matter that PW-2 is a police personnel, his statement cannot be looked into. He is also have same value as other independent persons. In this regard I may emphasis on the observations held by the Apex Court in case titled as "Ambika Prasad Vs. State" (Supra) where the the Apex Court again repeated that :-
"The whole prosecution case should not be thrown away merely if sufficient number of independent witnesses are not joined by the I.O. during the investigation if the case is otherwise proved beyond reasonable doubt on the basis of the material on record."
23. It is further pointed out by the Ld. Defence Counsel that IO and the doctor who has conducted the postmortem are the material witnesses, but they have not been examined by the prosecution as such neither the site plan nor postmortem has been proved, therefore, Page No. 23 the prosecution has failed to prove its case against accused.
In this regard I am of the view that the expert evidence cannot be override the direct evidence of eye witnesses which the court otherwise found to be trustworthy and reliable. My this view is strengthen from the judgment passed in case titled as State Vs. Ajay Kumar Singh 1998 1 AD Delhi 29. Here in this case the deceased was died at the spot and to prove the medical report, PW-8 Shri Rakesh Kumar Sharma, Record Clerk of Aruna Asaf Ali Hospital was examined to prove the postmortem report Ex. PW-8/A who also identified the signature of the Dr. D.N. Sharma as per the record, therefore, since the medical report has been proved through the Record Clerk in the absences of doctor who is not available, under these circumstances the opinion of doctor on Ex. PW-8/A is a part and parcel of the judicial record which can be read and considered for the purpose of appreciation of evidence. The postmortem report opined the cause of death as " cause of death - in my opinion the victim died of head injury due to blunt force / impact possible by road side accident as alleged". The injury has been described in detail whereby it is depicted and opined that the same is caused by the impact of accident as alleged. PW-5 Ct. Suresh Kumar through the photographs Ex. P-1 to P-6 and its negatives from Ex. P-7 to P-12 also shown the blood stained tyres and its mark and further stated in Page No. 24 his cross examination that the left tyre of the bus was blood stained and he took the photo of the same.
I also rely upon observations held in case titled as "Paras Nath Vs. State of Delhi" 2003 [3] JCC 1500 wherein Hon'ble Mr. Justice H.R. Malhotra observed that :-
"I am not in agreement with the submissions of the learned counsel for the appellant. Merely because the witnesses did not use the words rashness or negligent in his testimony and instead used the words high-speed, cannot be taken that the appellant was not driving the vehicle in a rash or negligent manner, what is important is to find out if the driver of offending vehicle was driving in public place rashly and in negligent manner so as to endanger human life or to be likely to cause hurt or death to any other person. In the case in hand the appellant hit the scooterist from behind. It is not the case of the appellant that the scooterist had applied break all of a sudden and therefore the appellant was taken unaware which led the appellant's truck hitting the scooter from behind. Act of negligence can be clearly attributed to the petitioner in this case as he is solely responsible for Page No. 25 causing this accident without any fault of the scooterist. 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 5-C speaks about the negligence attributed to the petitioner. The appellant also admitted in his statement under section 313 Cr. P.C. of the Code of Criminal Procedure that accident had taken place with his truck but denied that it was due to negligent and rash driving on his part.
In another judgment titled as "Gaurav Dhawan Vs. The State" cited in 2006 III AD (Cri.) (DHC) 72, Hon'ble Mr. Justice J.M. Malik observed that :-
"12. Now I turn to the report of the Mechanical Inspector. It is well settled that the deposition of a witness is not to be read in bits and pieces. The statement of the witness cannot be read in vacua but as a whole composite testimony. His entire report is to be taken into consideration. His report clearly goes to show that the car did not receive damages merely on its back side but on the front side as well. If for arguments' sake the case of the revisionist Page No. 26 is taken as true, it is difficult to fathom as to how the car received damages on its front side. It was only possible if the car crossed the divider and jumped over the scooter. In that eventuality, it is very likely that it would get damages on its all sides including its back side. This is apparent that the revisionist is trying to make bricks without straw. This piece of evidence evinces the hollowness of revisionist's argument. The defence stands fizzled out faster than the morning fist.
13. The above said facts have a crystalline clarity. The fact of this case speak for themselves. It is apparent that while driving the car accused was not keeping his eyes on the road. His abscondence from the spot and hospital further supports the prosecution case. There is not even a scintilla of doubt about rash and negligent driving of car by the revisionist/accused.
All the doubts about the revisionist have been proved to be purile and baseless.
The case against him stands proved."Page No. 27
24. With respect of non-examination of the Investigating Officer I am of the view that since there are overwhelming evidence on record the case of the prosecution is not fatal. Therefore, I am not convinced with the contention of Ld. Defence Counsel in this regard. Since the Investigating Officer expired during the course of trial, he could not come to depose against accused. My view is also strengthen with the Apex Courts judgment titled as " Ambika Parsad V/s. State" 2000(1) AD SC 141 wherein it has been observed that :
" non examination of the IO or the witness will not hamper the case of the prosecution unless there are other overwhel ming evidence placed on record. "
25. Ld. Defence Counsel further contended that there is no negligence on the part of accused as has been alleged by the prosecution which is remained unproved. In the criminal trial the burden to prove everything whatsoever to the aspect of the charge against accused is lying upon the prosecution and the prosecution has to prove it beyond reasonable doubt by standing on its own legs. To this effect I am of the view that in order to be encompassed the protection under section 304-A, there should be neither intention nor knowledge to cause death. When any of these two elements is found to be present, section 304-A has no application. "When a speedy Page No. 28 truck while taking a turn in open field hit a cot causing death of a person who was resting on it, such death falls under section 304-A because the driver obviously did not willfully drive the truck on the cot. It was either a rash or a negligent act" as observed by the Apex Court in case titled as "State of Gujarat Vs. Haidarali" AIR 1976 SC 1012. In the instant case PW-2 HC Mangey Ram categorically stated that "....at about 12.30 midnight a DTC Bus No. DEP number of which I did not remember, came from entry gate of the railway station and on the turn of footpath the rear wheel of the bus ran over the boy who was sleeping over the footpath". PW2 further testified that the said DTC bus was driven by the accused . PW-2 was cross examined by accused but nothing material came out of it and he again turned up for his cross examination on 03.02.2006 but he was not cross examined as such the testimony of PW-2 has not been rebutted nor it was challenged in any manner whatsoever. The other PWs have also corroborated the testimony of PW-2 to the effect that the DTC bus came from the entry gate of the railway station and on the turn of footpath the rear wheel of the bus ran over the boy who was sleeping over the footpath who died immediately at the spot. There is no cross examination on this point by Ld. Defence Counsel. The testimony of PW-1 and PW-2 are of the eye witnesses of the accident and remaining PWs are the witnesses of the circumstantial evidence who Page No. 29 have brought in evidence by way of photograph, mechanical inspection report, duty slip of the accused, postmortem report, registration of the case and other documents who were prepared during the investigation and created nexus between the eye witnesses and the documentary evidence. The negligence of accused has also been proved by his own statement recorded U/s. 313 Cr. P.C. wherein he simply denied the evidence led by the prosecution as false and incorrect but failed to produce any oral or documentary proof in support of his contentions. I refer to the section 103 of the Indian Evidence Act which provides as under : " Burden of proof as to particular fact: - The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
In view of Section 103 of Indian Evidence Act the burden of proving the alibi was upon the accused but he has neither deposed himself in support of it nor has he produced any defence witness or any other documentary evidence on record in order to support his contention that he is innocent and he has not committed any offence and that he has been falsely implicated in this case. It is despite the fact that sufficient time was given to the accused to prove this fact. Page No. 30
26. In view of the aforesaid discussions, facts and circumstances of the case as well as oral and documentary evidence on record and the authority cited above, the prosecution has successfully proved its case against accused beyond reasonable doubt that the accused Harpal Singh, S/o. Balbir Singh is the person who was driving the DTC bus bearing No. DEP9315 ran over the body of the deceased resulting which the accused died on the spot. Accordingly accused Harpal Singh, S/o. Balbir Singh is hereby convicted for the offence punishable U/s. 279/304A, IPC.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 06.09.2007. MM:DELHI Page No. 31 FIR No. 393/89 PS : NDLS 06.09.2007 Present: APP for the State. Accused on bail.
Vide separate judgment of today the accused is convicted and for the offence punishable U/s 279/304A IPC.
Now put up for order on sentence on 11.09.2007.
(S.K. Gautam) MM/Delhi 06.09.2007 Page No. 32