Delhi District Court
State vs . Rajeev Kumar on 6 November, 2012
IN THE COURT OF HARJYOT SINGH BHALLA :
M.M.07(SOUTH WEST), DWARKA, NEW DELHI
STATE VS. RAJEEV KUMAR
FIR NO.: 19/11
P.S. : DWARKA NORTH
U.S. : 279/304A IPC
J U D G M E N T
a. Sl. No. of the case and : 02405R0372192011
date of its institution 13.04.2011
b. Name of the complainant : Sh. Shailender Attri
c. Date of commission of offence : 24.01.2011
d. Name of the accused, : Rajeev Kumar
Parentage and residence S/o Late Sh. Umrao Singh
R/o H.No.G4/42,
Sector15, Rohini,
Delhi.
e. Offence complained of : U/s 279/304A IPC
f. Plea of accused : Pleaded not guilty
g. Date when judgment reserved :03.10.2012
h. Date when judgment pronounced : 06.11.2012
i. Final order : Convicted for the offence
U/s 279/304A IPC
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1 It is the case of the prosecution that on 24.1.2011 at about
1 pm at LIG Flats, Pocket B, Om Apartments Sector14, Dwarka, New Delhi within the jurisdiction of PS Dwarka North accused was reversing the car make Hyundai i10, grey color bearing no. DL 3CAY 9053 in a rash and negligent manner so as to endanger human life and personal safety of others and while reversing the aforesaid car in the aforesaid manner he hit State Vs. Rajiv Kumar FIR no. 19/11 1/20 the victim Smt Radha Devi and caused her death thereby committed offences punishable U/s.304A/279 IPC.
2 It is the case of the prosecution that information was received by the police about the accident and ASI Kailash Chand was deputed, who went to Ayushman Hospital along with Ct. Dhan Singh. The victim was found admitted under MLC 1975/11 with history of "RTA patient hit by car and injured" reported. Patient was declared unfit for statement and the police personnel went to the alleged spot of accident. On reaching the spot the police personnel found one eye witness Shailender Attri s/o Sh Tejvir Singh was found present on whose statement /complaint case was registered. Thereafter investigation was carried out. Vehicle was seized and mechanical inspection of the vehicle was carried out. A notice u/s 133 of M.V. Act was served on the owner who in his reply admitted that he was driving the Vehicle. The accused was arrested and his Driving License (hereinafter "DL") was seized. The documents of the vehicle were also seized. Police completed the necessary investigation and filed the challan U/s.279/338 IPC.
3 After filling of the challan, accused was summoned, copies were supplied to him and notice for commission of offence punishable U/sec. 304A/279 IPC was served upon and explained to the accused to which he pleaded not guilty and claimed trial.
4 While the prosecution evidence was being recorded, the present matter was transferred to this court. The Accused was called upon to carry out admission and denial of documents collected by the IO during the State Vs. Rajiv Kumar FIR no. 19/11 2/20 investigation and, filed by the prosecution alongwith the challan. The accused fairly and voluntarily admitted the following documents vide his statement dated 22.3.2012:
a)FIR No. 19/11 Ex.P/1.
b)MLC No. 1975/11 dated 24.01.2011 report of Dr. Ashok Malhotra and Dr. Renu of Ayushman Hospital, Sector12, Dwarka Ex.PW9/A.
c)Notice u/s 133 M.V. Act dt. 24.01.2011 Ex.PW7/D.
d)Superdaginama of the vehicle bearing No.DL3CAY9053, dated 24.01.11 executed by one Sh. Shambhu Pathak Ex.P/2.
5 The main questions that need to be answered in this case are:
a) Whether on 24.1.11 the accused was driving the vehicle Hyundai i10, grey color bearing no. DL 3CAY 9053? If so;
b) Whether the vehicle Hyundai i10, grey color bearing no. DL 3CAY 9053 had hit Smt. Radha Devi (Since deceased)? If so;
c) Whether at the time of impact the accused was driving the vehicle in a manner so rash and negligent so as to endanger human life and personal safety of others? If so;
d)Whether death of Smt. Radha was caused by injury received from the fall caused by the accident/impact? If so;
e) Its effect.
Evidence:
6 PW1 Shailender Attri, a neighbour of the deceased and accused, appeared as eye witness and deposed that he runs a general store shop near the accident spot. On 24.01.2011 at about 1 pm, he was present at his shop. State Vs. Rajiv Kumar FIR no. 19/11 3/20 In the meantime, he saw that one Mrs. Radha Pathak (the deceased) was going towards the park after coming down from the stairs and was passing from in front of his shop. He deposed that he heard a loud noise and saw that Mrs. Radha Pathak was hit by one car, number of which he couldn't recall. However he deposed that the car was Hyundai i10, light golden colour. He deposed that he and some other persons rushed towards the accident site. He did not see the driver who hit the deceased. However, he identified the accused as the driver who took the deceased in his vehicle. He deposed that he couldn't say as to because of whose fault the accident had taken place. He deposed that Police had reached the spot in the evening and recorded his statement as a complaint. He proved his signatures on the complaint and exhibited it as Ex.PW1/A. He deposed that he could identify the vehicle if shown to him.
7 As his testimony in the court was at variance with his complaint Exhibited PW1/A and his statement under Section 161 Cr.P.C, and the complaint Ex.PW1/A had been proved by him, Ld. APP was permitted to cross examine the said witness as hostile. During his cross rxamination he admitted that he had read over the statement in the complaint Ex.PW1/A before signing the same. He admitted that his statement for complaint Ex.PW1/A was recorded correctly. He admitted that at the time of making his statement he had informed the IO regarding the registration number of the vehicle. He also admitted that he had stated to the police that the driver of the car was reversing the car in rash and negligent manner and had hit State Vs. Rajiv Kumar FIR no. 19/11 4/20 Mrs. Radha Devi and she fell down on the ground and the accused Rajiv Kumar took Mrs. Radha Devi to unknown hospital in his car. The counsel for the accused carried out a very limited cross examination of this witness. Its effect shall be examined by me subsequently.
8 PW2 Mr. Shambhu Pathak, the husband of the deceased was also examined. He deposed that on the date of incident his son informed him that he had received a call that witness's wife had met with an accident and that she had been taken to Ayushman Hospital. He reached the hospital and found his wife admitted and being treated. He volunteered that brother of the accused met him at the hospital and told that the accident had been caused by his family member and his car. He deposed that his wife succumbed to her injuries on 30.01.2011 and he identified her body vide memo Ex.PW2/A and obtained the dead body vide memo Ex.PW2/B. He proved his signatures on the memo. He was not cross examined. 9 PW3 Sh. Dhananjay Pathak, the son of the deceased supported the testimony of PW2. He deposed that on 24.01.2011, he was in his office at Gurgaon. On that day, he had received a call from his wife that his mother had met with an accident and that she had been taken to Ayushman Hospital. He had informed his father. He went to the hospital and found his mother admitted there and that she was being treated. 10 He also volunteered that one Mr. Ram Chandran brother of the accused had met him at the hospital and told that the accident had been caused by the accused. He deposed that the victim succumbed to her injuries State Vs. Rajiv Kumar FIR no. 19/11 5/20 on 30.01.2011 and that he had informed the police.
11 PW4 Sh. Puran Chand was examined as Expert Witness as the Mechanical Inspector. He deposed that on 24.01.11 he conducted mechanical inspection of vehicle no. DL 3CA Y 905 at the request of IO. He Exhibited his report as Ex.PW4/A and proved his signatures on the same. He deposed that he found the vehicle fit for road test. 12 PW5 Ct. Dhan Singh who was accompanying the IO on 24.1.2011 deposed that he alongwith SI Kailash Chand were on emergency duty at PS. SI Kailash Chand received DD no.24A regarding accident. Thereafter they reached at Ayushman Hospital, Sector 12, Dwarka where injured Radha Devi was admitted in severe condition. IO gave application to the doctor for recording the statement of the injured but doctor declared injured unfit for statement. No eye witness were found in hospital. Thereafter, they reached at spot i.e. Sector14, Pocket B where Shailender Attri met them and gave his statement to IO as a complainant. IO prepared rukka and handed over to witness for registration of FIR. Thereafter, witness went to PS for registration of the FIR and returned to the spot with original rukka and copy of the FIR and same were handed over to IO. IO arrested the accused at the spot. He proved his signatures on Arrest memo Ex.PW1/PX1 and Personal search memo Ex.PW5/A. He deposed that IO had taken the offending vehicle No. DL 3CA Y 9305 in his possession vide seizure memo Ex.PW5/B. He also Exhibited of DL, RC, Insurance vide memo Ex.PW5/C. He identified the accused present in court. State Vs. Rajiv Kumar FIR no. 19/11 6/20 13 PW7 ASI Kailash Chand was the first Investigation Officer. He deposed that on 24.1.2011, he was posted in emergency duty. He received DD No. 24A Ex.PW7/A regarding the admission of injured in Ayushman Hospital. He deposed that he and Const. Dhan Singh reached the hospital and found Radha Devi admitted under MLC No. 1975/11 and doctor declared her unfit for statement on MLC. No eyewitness was present at the hospital. He deposed that they then went to Home Apartment, Sector 14, Dwarka and found one witness namely Shailender S/o Tejbir Singh and that he recorded the statement which is already Ex PW1/A. He deposed that he prepared the Rukka on the basis of the statement and exhibited the rukka as Ex PW7/B. He supported the version of PW 5 Constable Dhan Singh visà vis recording of FIR. He deposed that he prepared site plan at the instance of the complainant and exhibited the same as Ex PW7/C. He deposed that they got to know that the accused had gone towards Police station. He deposed that they reached PS and served notice u/s 133 MV Act to the accused which was exhibited and proved as Ex PW7/D. Thereafter he deposed about arrest and personal search of accused, seizure of vehicle, DL, RC and insurance supporting the deposition of PW5. He deposed about the mechanical inspection of the offending vehicle by Puran Chand. He deposed that on 25.1.2011, he visited the Ayushman Hospital to record the statement of the injured and moved an application to the doctor concerned which is Ex PW7/F but the doctor declared the injured Radha as unfit for statement. He deposed that during investigation, on 31.1.2011, he received DD No. State Vs. Rajiv Kumar FIR no. 19/11 7/20 15A, Ex PW7/E, regarding death of injured Radha Devi. He deposed that he got conducted the Post Mortem of deceased Radha Devi and handed over the dead body of deceased Radha Davi to her relatives recorded their statement already Ex PW2/A and Ex PW3/A. He added Section 304A IPC in the challan. He deposed that he also took photographs of the offending vehicle by official camera which are marked as Mark A1 to Mark A4. 14 PW6: ASI Lakh Ram from Accident Cell who was the second IO deposed that on 8.2.2011, he received the case of FIR No. 19/11 from Reader, Accident Cell. After receiving the case file he collected Post Mortem report from the DDU Hospital. That he verified the DL of the accused and RC of offending vehicle from the concerned authority. Thereafter, he prepared the challan and submitted the same in Court. 15 PW8 Dr. Santosh Kumar, Department of Forensic Medicine, DDU Hospital, Delhi deposed that on 31.1.2011 he received dead body of a female named Radha Devi wife of Shambhu Pathak aged 52 years sent by ASI Kailash Chand PS Dwarka North. He deposed that he had conducted the PM examination of deceased Radha Devi and exhibited his report as Ex PW8/A. He proved his opinion mentioned on page 4 of Ex PW8/A. 16 PW9 Doctor Akhil Jain, RMO, Ayushman Hospital, Sector12, Dwarka, New Delhi deposed that he was working as a doctor in Ayushman Hospital on 24.01.2011. He deposed that on the said date at about 1.54 PM, Dr. Vikas Gupta examined a patient namely Mrs. Radha Devi w/o Mr. Shambhu Pathak, female aged about 52 years admitted with alleged history State Vs. Rajiv Kumar FIR no. 19/11 8/20 of RTA (Road Traffic Accident). He deposed that he was working under supervision of the above said doctor and prepared the MLC No. 1975/11 and Exhibited the same as Ex.PW9/A and proved his signatures on the same. He deposed that the patient was admitted in ICU under observation of Dr. Vikas Gupta as the patient was unconscious.
17 After the prosecution's evidence was recorded. Statement of the accused was recorded under Section 313 of Cr.P.C. by putting to him entire incriminating evidence on record. He disclosed the following defence in his examination:
I was reversing the car slowly and cautiously when a lady came running out of one of the flats and she was talking on the phone and she suddenly slipped and fell on the road just behind my vehicle. She was not hit by my car at all but received injuries from her fall. I got down, helped her and took her to the hospital. I was reversing my car to take my mother to river Yamuna for performance of last rites of my deceased father and I was in no hurry. .....It is false that victim fell due to the impact of the accident. It is correct that I took Mrs. Pathak to the hospital. It is false that the accident was witnessed by Shailender Atri. Lot of my relatives were present at the spot but their statement was not recorded by the police.
18 Accused examined only one witness in his defence PW1 Attar Singh. He deposed in his examination in chief that on 24.01.2011 he had attended the tehrevi of his Chacha Shri Umrao Singh who was the father of the accused Rajiv Kumar. At about 1 P.M. the function of tehrevi got over, and he told Rajiv to get his car and told one Ranbir Singh to get Rajiv's State Vs. Rajiv Kumar FIR no. 19/11 9/20 mother from her residence to perform last customary rights by going to Yamuna river. He deposed that he was getting the car Model i10 reversed which was driven by accused Rajiv in order to take his Chachi to river Yamuna. He deposed that the car was being reversed at a low speed of about 5 km per hour. He deposed that a lot of children were playing in the gali therefore he was helping in getting the said car reversed. He deposed that he was standing at the back of the car and the alarm of the car was also blowing. He deposed that all of a sudden a lady who was talking on her Mobile Phone came from the side of the driver and fell down either because she slipped or because her leg got stuck in her saree. The car was about a distance of 1/1.5 feet from the point where the lady fell. He and Rajiv took hold of that lady and he noticed blood coming out of the lady. He immediately called Ranbir and told Ranbir and Rajiv to take that lady to the hospital. He deposed that he did not go to the hospital and waited for Rajiv and Ranbir for about one hour at the spot. He called one Dharambir to take out his car and after taking Ranbir from the hospital he went back to his village. Rajiv visited his village in the month of June 2011 and he came to know about the present case registered against Rajiv. To help Rajiv, he was deposing as to what he had seen on the date of incident. He deposed that there was no fault of Rajiv in the said accident.
19 Now I shall proceed to decide the above questions while analyzing the evidence in the light of the cross examination and impression made by the witnesses.
State Vs. Rajiv Kumar FIR no. 19/11 10/20 20 As far as the first question is concerned, i.e., Whether on 24.1.11 the accused was driving the vehicle Hyundai i10, grey color bearing no. DL 3CAY 9053, the deposition of the eye witness, the Notice and reply to notice under Section 133 of M.V. Act and the statement of the accused as well as evidence of the Defence Witness DW1 are relevant. The identity of the accused as the driver of the vehicle in question was not disputed by accused during evidence of the eye witness, evidence on the notice under Section 133, in his statement under Section 313 of Cr.P.C. The only witness produced in defence on the other hand deposed that the accused was driving the vehicle when the victim had fallen on the ground, although he denied any accident. In my view there can be no doubt that the accused was driving the vehicle Hyundai i10, grey color bearing no. DL 3CAY 9053 before and the time the alleged accident occurred. 21 Whether the vehicle Hyundai i10, grey color bearing no. DL 3CAY 9053 had hit Smt. Radha Devi (Since deceased)? The sole eye witness PW1 had although turned hostile, he however, accepted as correct his statement recorded in the form of complainant Ex.DW1/A when cross examined by Ld. APP. He also accepted the fact that he had stated to the police that car was being reversed in rash and negligent manner and had hit the victim Radha Devi and it was the accused who took the victim in the car to the hospital. Although he continued to remain hostile about the identity of the driver at the time of accident, however, this fact is not relevant as identity of the driver has not been disputed by accused during evidence on State Vs. Rajiv Kumar FIR no. 19/11 11/20 the notice under Section 133 and even in his statement under Section 313 of Cr.P.C.
22 During cross examination of PW1 by Counsel for the accused, no suggestion was given that the complaint was motivated or the vehicle had not hit the victim or that the victim had slipped and fallen as there was no noise and sound of accident itself. It was not even suggested that the vehicle was being driven at slow speed and the defence witness Attar Singh was assisting the accused in getting the vehicle reversed. No suggestion was put to the witness that he had not seen the vehicle being driven. No suggestion was given that the vehicle was not being driven at rash and negligent manner as alleged by him in the complaint Ex.PW1/A. To this extent, the contents of the complaint Ex.PW1/A as corroborated by oral evidence have gone unrebutted.
23 Besides the oral testimony and the circumstantial evidence, the conduct of the accused in taking the victim in his own car even though other relatives and vehicles were present, there is also the MLC prepared on the same date at about 1:45 pm when the patient was brought to the hospital unconscious by accused himself. The said MLC records "alleged H/O RTA (pt got hit by car in Om Apartments Complex, Sector 14, Dwarka at about 12:45 pm). This fact is also mentioned in the postmortem report. Since this entry was made very close in proximity of time to the time of incident and no police had been involved by then and the patient had been taken in the car of the accused himself, it is difficult to brush aside the history of road traffic accident mentioned in the MLC. This MLC was admitted by the State Vs. Rajiv Kumar FIR no. 19/11 12/20 accused as genuine document and contents there of have not even been questioned.
24 As far as the IO's evidence is concerned he denied the defence of the accused and I quote:
It is wrong to suggest that witness namely Shailender Attri never told me that the accident in the present case has been caused due to the negligence of the accused or that it was the accused who was driving the vehicle in an negligent manner and that I falsely recorded his statement so as to falsely implicate the accused in the present case....
However, such a suggestion was never evenput to PW1 eyewitness who deposed in his cross examination by the Ld. APP that his statement Ex.PW1/A was correctly recorded by the IO and that he had informed the IO that the vehicle was being reversed rashly and negligently. To my mind, it is established beyond any reasonable doubt that the victim was hit by vehicle in question which was being driven by the accused at the relevant time.
25 There is yet another aspect. It is pertinent to note that in his statement of the accused recorded under Section 313 Cr.P.C. there is no mention of any Attar Singh assisting the accused in reversing the car. Interestingly, the eye witness PW1 Shalilender Attri was never given suggestion that DW1 Attar Singh had been assisting the accused in reversing the car. The manner in which the car was being so reversed with the aid of Sh. Attar Singh was also not put to the said witness. Not only the version of defence witness Sh. Attar Singh is not to be found any where State Vs. Rajiv Kumar FIR no. 19/11 13/20 else, I also find the version of events so narrated by the defence witness not worthy of credit for the following reasons: a. The witness had admitted in his cross examination that:
"...I was not aware about the fact that a case against Rajiv had been registered and I had only come to know when Rajiv had visited my village in the month of June 2011 and there I offered him for help, if required....The real Mama of the accused, his elder brother and other woman including the mother of the accused were all present at the spot. All of them had seen the incident. I did not ask the accused why he was asking me to depose and not to his other relatives who were closer in relation than me. Vol. he asked me to depose and I came to depose... It is correct that I never heard anything about the incident thereafter till June 2011. It is wrong to suggest that there was no communication with me immediately after the incident as I have been asked to depose only as an after thought. Vol. I was not informed about the incident due to the family problems in my family. I do not find it surprising that earlier I was not even informed about the incident as the accused did not want to disturb me and now out of so many relatives present at the accident spot only I have been asked to depose as a witness..."
Now, it is surprising to note that on the one hand the witness submits that many close relative of the accused was present at the spot and had seen the incident. The witness was not even aware about the present case untill June, 2011. As per his own testimony. He also deposed that there was no communication with him after the incident and he had not heard about the incident till June 2011. He volunteered that he was not so informed because there was family problems in his own family suggesting thereby that accused did not want to involve him in the State Vs. Rajiv Kumar FIR no. 19/11 14/20 present matter. He denied feeling any surprise that even though he had not been informed about due to family problems only he was asked to depose as witness in the present matter for the defence and no other witness even though several were present at the spot and were all related to the accused were produced.
b. The witness further admitted in the cross examination that :
...I cannot exactly tell whether the lady fell due to slipping or her leg got stuck in her saree as I was concentrating in getting the said car reversed. I did not see any stone lying at the spot. It was not raining on the day of incident...
...I was 5 to 6 metre away from the car and I was helping the driver reversing the car. I was getting the vehicle reversed with the front of my torso facing the vehicle and I used to look behind occasionally to see I was going. I must have looked behind me once or twice. Other persons were also present at the spot and waiting. I must have helped the driver reversing the car up to 20 to 25 ft. It is wrong to suggest that the accident happened when I looked around to see behind my back and therefore I could not notice it. It is wrong to suggest that I must have looked behind more than twice while walking 20 to 25 ft. It is wrong to suggest that each time I must have looked around and would have spend more than one second. It is wrong to suggest that I had not seen the lady fall but I had only seen her after she had fallen and therefore I had not seen when the car had hit her.
The manner in which he has described his assistance to the accused in assisting in reversing the car is also not trustworthy. The witness had deposed in his examination in chief that "Since lot of childern were State Vs. Rajiv Kumar FIR no. 19/11 15/20 playing in the gali, I was helping in getting the car reversed." Even though he had claimed to have assisted in reversing the car upto 2025 ft in the presence of several persons, he also simultaneously, claimed that he was in any event 5 to 6 mtrs away from the car which would be approximately about 15 to 18 ft. He also admitted that he looked behind occasionally to see where he was going and then deposed to have looked behind once or twice and his insistence that he never looked behind more than twice and never for more than a second with such confidence that too almost 1½ years after the incident, is surprising. Admittedly, children were playing in the gali where the vehicle was being reversed and the danger of the children getting hurt by the car or by the witness himself walking backwards could not have been ruled out by him, in fact, he was conscious of the fact. The witness happens to be a retired Head Master and could very well infer the consequences of accepting that he must have looked behind more than twice or for more than a second i.e. he lost sight of what could have happened between the victim and the vehicle. Interestingly, it had not rained on that day and the witness showed doubt as to whether the victim had fallen due to slipping by her leg getting struck in her saree that too because he was focusing on reversing the car. He also did not support the stand of the accused that there was a footpath about 3 to 4 inches higher than the road. Also the witness deposed that he saw from a distance of 18 ft standing in a straight line with the vehicle and the victim in between that the distance between the vehicle and the victim must have been around 1 ft or so or the vehicle State Vs. Rajiv Kumar FIR no. 19/11 16/20 never hit the lady. For someone who is walking in the same direction alongwith the vehicle being reversed standing at a distance of 18 ft, it would be very difficult to gauge the distance between the vehicle and the victim if the victim was between the vehicle and witness that too around 1 ft. away from the vehicle which was being reversed. Such a person could not have been able to see what had happened to the lady, for a person standing on the side only could have seen and understood the gap between the vehicle and the victim.
c. The IO was put the following defence by the counsel for the accused and I quote:
It is wrong to suggest that the person who had hit the injured namely Radha Devi had run away from the spot and thereafter the injured was taken to the hospital by the accused and he was falsely implicated in the present case. It is wrong to suggest that I am deposing falsely.
Similar suggestion was not even put to PW1 nor did the DW1 depose as to any such fact nor did the accuse take this defence in his statement under Section 313 of Cr.P.C. The defence of the accused in his statement under Section 313 was completely unrelated to this suggestion. The Witness DW1 gave an altogether new twist to the defence of the accused and deposed something which was never put to any of the prosecution's witnesses. It seems that the defence was cooked up with each passing stage of trial. No doubt accused has a right to remain silent and not disclose his defence till asked but if he takes several defences in course of trial which are mutually inconsistent, the testimony of his witnesses in State Vs. Rajiv Kumar FIR no. 19/11 17/20 defence would be required to be sifted with care and caution.
d. The Evidence Act allows full effect to be given to circumstances or conditions of probability or improbability. While deciding an issue of fact the Judges are bound to call into aid their experience in life and can test the evidence placed before them on the basis of probability and improbability. Reliance is placed on the decision in Gopeshwar Dutt vs B. Dutt XVI CWN 265 and Chaturbhuj Pande vs Collector, Raigarh AIR 1965 SC 255. I find that the testimony of this witness does not inspire much confidence on the yardstick of probability, the witness also does not inspire much confidence and he seems to be interested witness.
His testimony is therefore being rejected.
26 To my mind, it is established beyond doubt that the vehicle had hit the victim.
27 Whether at the time of impact the accused was driving the vehicle in a manner so rash and negligent so as to endanger human life and personal safety of others? I have already dealt with the testimony of PW1 more specifically with reference to the cross examination by Ld. APP for State and the witness proving his complaint Ex.PW1/A. Since, Ex.PW1/A is the Asal tehrir and admissible as a piece of evidence being contemporaneous with the event its contents can be relied upon if corroborated. The witness admitted that his statement PW1/A was correctly recorded and that he had deposed that the vehicle was being reversed rashly and negligently by the accused. During the cross examination of the State Vs. Rajiv Kumar FIR no. 19/11 18/20 witness by the counsel, it was not even suggested that the vehicle was being driven at slow speed and the defence witness Attar Singh was assisting the accused in getting the vehicle reversed. No suggestion was put to the witness that he had not seen the vehicle being driven. No suggestion was given that the vehicle was not being driven at rash and negligent manner as alleged by him in the complaint Ex.PW1/A. To this extent, the contents of the complaint Ex.PW1/A as corroborated by oral evidence have gone un rebutted. To my mind, the testimony of the sole eye witness as to the factum of rash and negligent driving stands established on record. This question is also answered accordingly.
28 Whether death of Smt. Radha was caused by injury received from the fall caused by the accident/impact? PW9 and PW8 proved the MLC and Postmortem report as Ex.PW9/A and Ex.PW8/A respectively. The conclusion on page 4 of the postmortem report indicates the cause of death as coma due to head injury followed by road traffic accident. The witnesses were not even cross examined on the MLC or the Postmortem report despite opportunity. The testimony of these witnesses has not been probed nor rebutted on these aspects. Reference may be made to the decision in Sarwar Singh vs. State of Punjab AIR 2003 SC 3652. In that view of the matter the fourth question has to be answered in the affirmative. Effect:
29 Since all the above questions have been answered against the accused and in favour of the prosecution and all the ingredients of the State Vs. Rajiv Kumar FIR no. 19/11 19/20 offence under Section 279/304A IPC have been established on record. The accused is accordingly convicted of the offence under Section 279/304A IPC.
Announced & dictated in (Harjyot Singh Bhalla)
the open Court on 06.11.2012 Metropolitan Magistrate
Dwarka Courts: New Delhi
State Vs. Rajiv Kumar FIR no. 19/11 20/20