Delhi District Court
Rajinder Kumar vs State on 2 March, 2013
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL) DELHI
Crl. Appeal No.28/13
Rajinder Kumar
S/o Sh. Khem Chand,
R/o C6/1B, Keshav Puram,
Delhi. .....Appellant
Versus
State .....Respondent
Date of Institution:21.12.2012
Date of Judgment:02.03.2013
J U D G M E N T
Rajinder Kumar, appellant was facing trial before Learned Trial Magistrate in case FIR no.422/98 registered at PS Kamla Market, for offences U/s 279 & 304A IPC.
2. Accusation levelled against him is that on 18.09.98, at about 09.30 a.m., he, while driving the blue line bus no.DL 1P 8257 in a rash and negligent manner at Traffic Lights Point, Ajmeri Gate, Delhi, hit the bus against Ram Kishan, aged about 55 years, who was crossing the road on foot while going 1 from the side of Pul Paharganj, as a result whereof front right side wheel of the bus crushed right leg of Ram Kishan.
Ct. Vinod Kumar, who was present on duty nearby, and other persons from the public removed Ram Kishan from under the bus. The driver of the bus
- accusedappellant managed to escape. Ct. Vinod Kumar removed the injured to LNJP Hospital where he was medicolegally examined.
Inspector Vivekanand (then SubInspector) took over investigation, on receipt of DD no.8A and reached the spot. There, the Inspector came to know that injured had been removed to hospital by Ct. Vinod Kumar. So Inspector reached the hospital and collected MLC. The injured was also found lying admitted in the hospital. Injured was declared fit to make statement. Thereupon, Inspector recorded statement of Ram Kishan and sent rukka from hospital to the police station through Ct. Vinod. That is how, case was registered.
Thereafter, Inspector Vivekanand reached the spot, inspected it and prepared rough site plan of the place of accident. He also seized the bus.
During investigation, the Inspector issued notice U/s 133 of Motor Vehicle Act to Sh. Gauri Shankar, owner of the bus, on the same day. Thereupon the accused was produced before the police. That is how, he was arrested.
Ram Kishan died on the same night at about 1.45 am.
2 On receipt of information regarding death of Ram Kishan, Inspector Vivekanand reached the hospital, carried out inquest proceedings and got the dead body subjected to autopsy.
3. On completion of investigation, challan was put in court.
Charge
4. Prima facie case having been made out, notice for offences U/s 279 and 304A IPC was served upon the accused. Since he pleaded 'not guilty' and claimed trial, prosecution was called upon to lead evidence.
Prosecution Evidence
5. In order to prove its case prosecution examined, following 8 witnesses: PW1 Ct. Vinod Kumar An eye witness to the accident.
PW2 Ct. Sakharam Who was accompanying Vivekanand
during investigation.
PW3 Sh. Mahender Singh Who identified the dead body of his father
- Ram Kishan.
PW4 Sh. Mool Chand Who identified the dead body of his father
- Ram Kishan.
PW4 Hem Raj, Record Clerk, To prove autopsy report Ex.PW4/A MAMC Hospital prepared by Dr. Yogender Bansal.
PW5 HC Inder Pal, Duty Office To prove recording of FIR Ex.PW 5/A on the basis of rukka brought by Ct. Vinod Kumar.
PW6 Insp. Vivekanand Investigating Officer of the case. 3 PW7 Ct. B.K. Parthi To prove communication of information from JPN Hospital to PS Kamla Market on the night intervening 18/19.09.98 at about 1.45 a.m., about sad demise of Ram Kishan and entry Ex.PW6/E recorded in this regard.
PW8 Dr. Sohel Bari To prove MLC Ex.PW8/A prepared by him on medicolegal examination of Ram Kishan at LNJP Hospital on 18.09.98.
Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused claimed innocence by pleading as under : "The matter of fact is the my bus was running very slow due to heavy traffic and jam on the road and the speed of bus would be at around 10 km per hour and the deceased who was moving on the road was himself fell down on the road and he was not crushed by my bus ."
Although the accused initially opted to lead evidence in defence, he did not lead any such evidence.
7. Arguments heard. File perused.
8. On conclusion of trial, learned Trial Magistrate has convicted Rajinder Kumar of the offence U/s 304A IPC and sentenced him to undergo simple imprisonment for one year.
9. Hence this appeal.
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Discussion
10. Learned counsel for appellant has contended that during trial prosecution has failed to examine concerned doctor who conducted postmortem examination report and as such no reliance can be placed on postmortem examination report Ex PW4/A. In support of this submission, learned counsel has referred to decision in Sansar Singh vs. State of U. T. Chandigarh 2000 Crl. L. J. 326 On the point of nonexamination of doctor who had conducted autopsy on the dead body, in the case of Sansar Singh's (Supra), Hon'ble Judge observed that injured had not died at the spot. Injured died after he had been removed to hospital. In that case, it was not proved as to when the deceased died and what was the nature of injuries and cause of his death. In these circumstances, Hon'ble Judge held that it was not proved that death was caused due to accident injuries.
Herein, Trial Court record would reveal that Record clerk appeared and deposed about preparation of postmortem examination report Ex PW4/A. He clearly stated that the concerned Dr. Yogender Bansal had left the hospital. Statement of record clerk was not subjected to any cross examination. No objection was raised on behalf of the accused to the admissibility of this postmortem examination report in evidence. No steps were taken on behalf of the accused to file any application for summoning of doctor to examine him to 5 challange the findings recorded in the postmortem examination report. In the given circumstances, nonexamination of the doctor does not come to the aid of the present accused.
11. Learned counsel for appellant has contended that although prosecution has examined PW1 Ct. Vinod Kumar as an eye witness to the accident but it failed to establish his presence on the given date, time and place, as the said constable clearly stated that he had not seen the victim crossing the road. As further submitted, the witness could tell as to for which side there was green traffic signal. He could also not tell as to at what speed the said bus was being driven. In support of these submissions, learned counsel has referred to decisions in Tukaram Sitaram v. State AIR 1971 BOMBAY 164; Abdul Subhan vs. State (NCT of Delhi) 2007[4] JCC 3148; Ishwar Singh vs. State 2012 [3] JCC 1686; Vinod Kumar vs. State 2011 [4] JCC 2786 and State of Haryana vs. Sher Singh AIR 2009 SC 823.
In Tukaram Sitaram's case (Supra), it was observed as under: "In order to hold accused liable under Section 304A there must be evidence not only of rashness or negligence acceptable to Court but also that the rash or negligent act of accused was the proximate cause of death and that there must be a direct nexus between the death of a person and rash or negligent act of accused."
In the case of Abdul Subhan's case (Supra) Hon'ble Judge observed that 6 apart from the allegations of having driven the truck at a highspeed, which itself was an unclear expression, there was nothing on record to establish that the petitioner drove the vehicle rashly and/or negligently or did any act which would amount to a rash and/or negligent act.
Similarly in the case of Ishwar Singh's case (Supra), Hon'ble Judge observed that there was nothing to suggest that accident had taken place due to his negligence or rash driving.
In the case of State of Haryana vs. Sher Singh's case (Supra), Hon'ble Apex Court found substance in the contention raised by learned counsel for appellant that there was no mention about rash and negligent driving of the vehicle; Hon'ble Court observed that although the victim stated in his dying declaration that he could identify the driver, but he did not refer to the accused. Therefore, Hon'ble Court did not consider it to be a fit case for interference and as such the appeal filed the State against acquittal of the accused was dismissed.
12. Herein, as noticed above, accident took place on 18.09.98, at about 09.30 a.m. at Traffic Lights Point, Ajmeri Gate, Delhi. Case was registered on the statement made by injured Ram Kishan (since deceased) and recorded on the same day at LNJP Hospital by SI Vivekanand. This statement of Ram Kishan has been marked as Mark A. Ram Kishan left this world on the same night at 1.45 a.m. while he was still at LNJP Hospital. In the given circumstances, statement made by Ram Kishan before SI Vivekanand could be treated as dying 7 declaration and would have been admissible in evidence U/s 32 of Evidence Act, has it been proved that any such statement was actually made by Ram Kishan.
But herein, no reliance can be placed on the statement, not because it has not been got duly proved but on account of suspicion attached to its genuineness i.e. whether it was actually made by Ram Kishan.
13. In his statement, Ram Kishan is alleged to have narrated the manner in which he was crossing the road while crossing on foot, from the side of Pul, Paharganj and reached the traffic light point at Ajmeri Gate. Therein he is also alleged to have stated that in the meanwhile driver of bus no.DL 1P 8257 came from the side of Pul, Paharganj in a rash and negligent manner and hit him, as a result of which his right leg came under the right side wheel of the bus. Unfortunately, Ram Kishan succumbed to the injuries. The victim also expressed that he could identify the driver who had managed to escape. As further stated by Ram Kishan in the statement, Ct. Vinod, no.2045/C, who was on duty nearby, with the assistance of other persons removed him from under the bus and that is how, he was taken to hospital.
MLC Ex.PW8/A is in respect of medicolegal examination of Ram Kishan at LNJP Hospital. As per this MLC, Vinod Kumar accompanied the injured on 18.09.98 at 9.40 a.m.
14. Prosecution examined PW8 Dr. Sohail Bari, who had medicolegally examined Ram Kishan at the aforesaid hospital on 18.09.98. According to PW8, 8 after medical examination, the injured was referred to surgery department for further management. Inspector Vivekanand stated in his cross examination that he returned from the hospital at about 11.15 a.m. Rukka Ex.PW6/A would reveal that it was concluded at 10.50 a.m. and dispatched to the police station from the hospital. It means the statement of injured was recorded by the Inspector some times before 10.50 a.m. Although according to Dr. Sohail Bari when he medicolegally examined the injured at 9.40 a.m., the patient was conscious and replying to his queries, it was for the prosecution to prove that when the statement of Ram Kishan is stated to have been recorded he was fit to make statement.
On the MLC, there is an endorsement "fit for statement" by one Pawan. But there is nothing on record to suggest as to who recorded this endorsement, regarding fitness of the injured, on the MLC. Neither it bears date nor time of recording. It is not case of the prosecution that any Dr. Pawan attended Ram Kishan and declared him fit to make statement.
A perusal of Mark A stated to have been recorded by SI Vivekanand at the hospital would reveal that spacing in the last 78 lines is not equal to the spacing in between first 45 lines. From the difference in the spacing, it clearly appears as if the thumb impression of Ram Kishan was obtained on a blank paper and this statement Mark A was reduced into writing subsequently. 9
Had the statement been actually made by Ram Kishan, in my opinion, this difference in the spacing would not have been there.
Even otherwise when the injured at the hospital, the SubInspector should have recorded the same in presence of some doctor and got the same attested from the said doctor. However, the statement Mark A does not bear any attestation of any doctor. There is no explanation in this regard.
15. As per prosecution version right leg of the injured was crushed under the front right side wheel of the bus. Since the injured was under the bus, it is difficult to believe that he could note down the registration number of the bus or he could see the driver running away so as to mention the same in his statement Mark A. In view of above discussion, no reliance can be placed on the statement Mark A which led to registration of this case.
16. It is case of prosecution that the accident was witnessed by PW1 Ct Vinod Kumar who as on duty at police picket of Ajmeri Gate. While appearing in Court as PW1 Ct. Vinod Kumar deposed about his duty hours from 8 am to 8 pm and further that on 18.09.1998 at about 9 am, he was standing in front of the both at Ajmeri Gate.
As regards the manner in which accident took place, according to Ct. Vinod, he saw an old aged person, whose name later on transpired as Ram Kishan crossing the road on foot while coming from the side of Pul Pahar Ganj. 10 However, this version is not inconsonance with the version of the prosecution as available in statement Mark A.
17. According to the version attributed to Ram Kishan, he was going to his office situated towards Pul Pahar Ganj road and accident took place on reaching near traffic light point of Ajmeri Gate.
Site plan Ex PW6/B depicts two points A and B i.e. point A is the place where the bus was found lying parked whereas point B is the place from where constable Vinod Kumar and other from the public removed the injured from under the bus. There is midverge on the road known as Pul Pahar Ganj as depicted in the sit plan and police picket is on the northern side of the place of accident. According to Ram Kishan, bus came from the side of Pul Pahar Ganj. However in this site plan, it has no where been pointed out as to from which side bus was coming or as to from which side Ram Kishan was coming while crossing the road.
Had Ct. Vinod Kumar witnessed the accident, SI Vivekanand, must have depicted these significant points in the site plan. In absence of any of these details in the site plan, it cannot be gathered as to in which the manner accident took place at points A and B. Simply because Ct. Vinod Kumar removed the injured from the place of accident LNJP hospital, it is difficult to state that he was present on duty at Pul Pahar Ganj.
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In case Ct. Vinod was on duty on the given date, time and place, it was for the IO to collect copy of departure entry from PS Kamla Market. However, no such document appears to have been concluded by the Inspector during investigation. In his cross examination, the Inspector admitted to have not checked the duty register regarding posting of Ct. Vinod Kumar.
18. At another stage, witness admitted that besides him other persons from the public had also witnessed the occurrence. In this situation, IO should have made efforts to associate persons from the public so as to record their version regarding the manner in which the occurrence took place. However, statement of no such witness from the public appears to have been recorded.
Learned defence counsel has referred to cross examination of PW1 Ct Vinod Kumar wherein he stated to have not seen injured crossing the road before the accident and that he was attracted towards that side on hearing voices of the people. The contention is that from this statement, it can safely be said that the accident did not take place within the view of Ct. Vinod and as such he is not an eye witness.
19. It has come in cross examination of PW1 Ct. Vinod Kumar that near the place of accident, traffic signal was in existence and in operation. But he could tell as to for which side there was green signal at that time. Had PW1 Ct. Vinod Kumar been an eye witness, he would have clearly stated in his cross examination as to for which side there was green signal at the relevant time. 12 Therefore, it cannot be said that as to whether there was green signal for the the accused and the red signal for the other users of the road including Ram Kishan or vice versa.
In such a situation, he would have also answered to reply that he had seen the injured crossing the road before accident. When he stated to have got attracted towards accident only on hearing voices of people, it appears that PW1 Vinod Kumar got attracted towards the place of accident only after the impact.
From the aforesaid testimony of Ct. Vinod Kumar, it is difficult to state that he witnessed the accident actually taking place.
20. PW1 clearly stated in his cross examination that he had not seen Ram Kishan prior to the accident crossing the road, and as such could not say as to on account of whose negligence the accident took place. The witness was re examined by learned Addl. PP on this point. Then he stated that the had seen the bus being driven at fast speed and hitting Ram Kishan who was crossing the road.
Had PW1 Ct. Vinod Kumar witnessed the accident, he could reply as to the manner in which the bus was being driven. However in his cross examination he could tell even the approximate speed of the bus at the time accident took place. However, it is in his cross examination that bus stopped then and there, after the accident. Had the bus been driven at a speed beyond control of the driver, it is not believable that the bus driver would have been able 13 to stop it then and there.
In the case of Mahadeo Hari Lokre vs. The State of Maharashtra AIR 1972 SC 211, Hon'ble Apex Court held the bus driver to be not negligent while observing that if a person suddenly crosses the road the Bus Driver, however, slowly he may be driving may not be in a position to save the accident. Therefore, it will not be possible to hold that the Bus Driver was negligent.
Herein also it is not believable that the bus driver coming from the side of Pul Pahar Ganj could not notice any user of the road like Ram Kishan crossing the road.
From the given facts and circumstances, narrated above, it cannot be said that accident could take place at point A as the prosecution wants to believe.
21. In view of the above discussion, the impugned judgment of conviction and sentence deserves to be set aside. Accordingly, appeal is allowed and the impugned judgment of conviction and sentence is set aside. As a result, accusedappellant is acquitted in case FIR No. 422/98 PS Kamla Market.
22. Trial Court record be returned. File be consigned to Record Room.
Announced in Open Court
on 02.03.2013 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
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