Delhi District Court
Abhishek vs State on 2 February, 2017
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Crl. Appeal No. 10 of 2016
Case No. CNR DLND01-000428-2015
Abhishek
Son of Sh. Ashok Pahwa
Resident of A-338, 1st Floor,
Defence Colony, New Delhi.
...Appellant
VERSUS
State
...Respondent
Date of institution of the case : 10.03.2015
Date of transfer of case to this Court : 31.08.2016
Date of reservation of orders : 02.02.2017
Date of announcement of orders : 02.02.2017
ORDER
1. This appeal has been filed against two impugned orders, both dated 09.02.2015, by which the appellant Abhishek was convicted for the offences under sections 304A, 337 and 338 of the Indian Penal Code (IPC) and was sentenced to rigorous imprisonment for a period of two years and fine of Rs. 5,000/- for the offence under section 304 A IPC. In default of payment of fine he was directed to undergo SI for a period of four days. He was sentenced to rigorous imprisonment of six months and fine of Rs. 5,000/- for the offence under section 337 IPC, and in default of payment of fine he was directed to under simple imprisonment for four days. For the offence under section 338 of the IPC appellant was sentenced to rigorous imprisonment for a period of two years and fine of Rs. 1,000/-. In default of payment of fine he was directed to undergo simple imprisonment for a period of four years. All the sentences were directed to be run concurrently. Abhishek vs. State CA No.10 of 2016 1/9
2. The brief facts of this case leading to the filing of the present appeal are that DD No. 25 A was recorded in the intervening night of 15/16.01.2004 in police station (PS) Tilak Marg. The same was assigned for inquiry to ASI Attar Singh who along with Ct. Anil proceeded to gate no. 3, Pragati Maidan on the crossroads of Bhagwan Dass Road and Mathura Road. There he found two taxi scooter rikshaws (TSRs) bearing registration no. DL-1RG-6345 and DL-1RG- 4347 and one Skoda Octavia bearing registration no. DL-3CY-3277 lying damaged after an accident. Ct. Sanjiv from PS Tilak Marg, who was on patrolling duty that night had already reached the place of the accident upon being given information through wireless set. Ct. Sanjiv found that the appellant Abhishek Pahwa had been apprehended by public persons and that the injured persons had already been taken to RML Hospital by a PCR. ASI Attar Singh reached the place of the accident and Ct. Sanjiv handed over the custody of the appellant to him. ASI Attar Singh left Ct. Sanjiv at the place of the incident and went to RML Hospital along with the appellant and Ct. Anil. Two of the injured persons had been declared dead and one person was unfit for statement. The fourth injured person Ram Ashish Mehto was available and ASI Attar Singh recorded his statement.
3. Ram Ashish Mehto had stated that he was engaged in driving a TSR bearing registration no. DL-1RG-4347. On 15.01.2004 he had gone to Hall No. 11, Pragati Maidan to drop a passenger. At about 2 am in the night after dropping his passenger, he started going back and found another passenger near Hall No. 11, who wanted to go to Rohini. He picked up the said passenger and went on Mathura Road and was taking a turn from Mathura Road for going towards Bhagwan Dass road to go to Rohini at about 2.05 am. At that time, one vehicle make Skoda Octavia colour blue bearing registration no. DL3CY3277 was coming from the side of Delhi zoo. Abhishek vs. State CA No.10 of 2016 2/9 The driver was driving the said vehicle negligently and in very fast speed and collided with the TSR of Ram Ashish Mehto due to which it overturned. The passenger sitting in the TSR got crushed and suffered injury on his left leg. Ram Ashish Mehto suffered injuries on his left hand. The driver of the Skoda Octavia vehicle then proceeded in high speed towards W point and hit another TSR bearing no. NDL1R6345 from the rear. Four passengers sitting in the said TSR fell down and thereafter Skoda Octavia vehicle collided with the pavement and stopped.
4. Ram Ashish Mehtro further stated that he ran towards the Skoda Octavia vehicle and saw its driver very well. Immediately thereafter 3-4 vehicles came and took them to the hospital. Ram Ashish Mehto came to know that out of the four passengers sitting in the TSR DL1RG6345, two had been declared dead and the remaining persons were in critical condition. He stated that this accident was caused by Abhishek, son of Sh. Ashok Pahwa, resident of A-338, 1st Floor, Defence Colony, New Delhi, whose name was revealed to him later on. He stated that he had seen the driver at the spot and would be able to recognize him.
5. After recording the statement of Ram Ashish Mehto, ASI Attar Singh came to the place of the incident with him and prepared the rukka which he sent through Ct. Sanjiv to PS Tilak Marg for registration of the FIR. ASI Attar Singh seized the Skoda Octavia vehicle and TSRs involved in the accident. He took possession of the TSRs bearing no. DL1RG 6345, DL1RG 4347, Skoda Octavia bearing registration no. DL3CY3277 and prepared site plan at instance of Ram Ashish Mehto. He deposited the case property in the Malkhana of PS Tilak Marg. ASI Attar Singh went back to the police station and recorded the statements of other witnesses. The deceased persons were identified as Sharafat Ali and Harish Vasudev. Their postmortem were conducted and their bodies were handed over to their Abhishek vs. State CA No.10 of 2016 3/9 family members. The third injured person who was unknown died later on in the hospital. ASI Attar Singh arrested the appellant and seized his driving license. He got the damaged vehicles mechanically inspected and after completion of the investigation filed the charge sheet. By order dated 26.02.2007 notice under section 251 of the Cr. P.C was framed against the appellant.
6. In all the prosecution examined 14 witnesses to prove the charge against the appellant. Jeevan Bhatt who was a passenger in TSR no. DL-1RG-4347 was examined as PW1, HC Attar Singh, Duty Officer who recorded the FIR as PW2, Ram Ashish Mehto as PW3, Ct. Sanjiv as PW4, Vinod Kumar, driver of TSR No. DL-1RG-6345 was examined as PW5, Dr. Anil Taneja as PW6, IO ASI Attar Singh as PW7, Vikas, passenger of TSR as PW8, Mechanical Inspector T. U. Siddiqui as PW9, Deen Dayal, Record Clerk RML Hospital also as PW9, Rajiv Sharma, Sr. Resident, Department of Forensic Medicine Department LHMC as PW10, another Record Keeper of RML Hospital as PW11, Dr. Rajiv Sharma, LHMC Hospital as PW12, Ashok Pahwa, owner of Skoda Octavia no. DL3CY3277 as PW13 and Sanjay, owner of TSR bearing no. DL1RG 6345 as PW14.
7. Upon conclusion of evidence of the prosecution, statements of the prosecution witnesses statement of appellant was recorded under section 313 Cr.P.C. In his statement appellant completely denied his involvement in the accident. He claimed that he was not present at the place of the accident and was not driving Skoda Octavia vehicle nor was in possession of the same. The appellant did not wish to lead evidence in his defence.
8. After considering the evidence on record Ld. Trial Court by the impugned order dated 09.02.2015 has found the appellant guilty and Abhishek vs. State CA No.10 of 2016 4/9 sentenced him. Therefore the appellant filed the present appeal before this Court.
9. Before this Court, Sh. P.K. Dubey, Ld. Counsel for the appellant had argued that none of the public witnesses examined by the prosecution identified the appellant to be the person driving Skoda Octavia vehicle. He submitted that as per the prosecution, Ct Sanjiv had reached the place of the incident and had found the appellant who had been apprehended by the persons of the public. However no such person of the public was made a witnesses regarding apprehension of the appellant. He submitted that the presence of Ct Sanjiv itself was doubtful on account of several contradictions which had crept in his cross examination. In this regard reliance was placed on the statement of PW2 HC Attar Singh, Duty Officer who has recorded the FIR. He submitted that as per PW2, Ct Sanjiv had left for the spot from the police station while PW4 Ct Sanjiv stated that he was on patrolling duty and upon receiving information through the wireless message, he reached the place of the incident.
10. Sh. P.K. Dubey, Ld. Counsel for the appellant further argued that certain documents on record have not been proved through their respective authors even though they were available. The same were therefore not admissible in evidence. He had submitted that the Motor Inspection Reports of TSRs bearing registration numbers DL-1RG-6345 and DL-1RG-4347 and Skoda Octavia bearing registration no. DL-3CY-3277 were marked as Ex.PW7/S to Ex.PW7/U. These documents are under the signatures of T.U. Siddiqui PW9 but were exhibited in evidence through the IO PW7 SI Attar Singh. Even in the examination of PW9, only the report qua TSR bearing registration number DL-1RG-6345 was put to this witness and the other two were not put to him. The same were therefor inadmissible in evidence.
Abhishek vs. State CA No.10 of 2016 5/9
11. Counsel for the appellant in this regard relied on the observations of the Hon'ble Supreme Court in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee, reported in (2009) 9 SCC 221.
12. On the other Ld. Addl. PP for the State has argued that the examination in chief, cross examination by the Ld. APP for the State as well as testimony made in cross examination on behalf of the accused public witness PW1 Jeevan Bhatt reveals that he has duly identified the appellant. He submitted that there were no contradictions in the testimonies of PW4 Ct Sanjiv as well as PW2 HC Attar Singh. He however did not dispute the fact that the above mentioned documents were not proved through their respective authors.
13. I have Ld. Counsel for the parties and perused the record of the Ld. Trial Court. In the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee (supra), the Hon'ble Supreme Court hold as under:-
"36. Kunal, however, would contend that the aforementioned documents (Exts. 4, 5 and 6) were exhibited without any demur whatsoever. The respondents, furthermore, did not make any prayer to cross-examine the said witnesses.
37. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless the author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-examination in a court of law. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken.
38. In a criminal case, subject of course, to the shifting of burden depending upon the statutes and/or the decisions of the Abhishek vs. State CA No.10 of 2016 6/9 superiors courts, the right of an accused is protected in terms of Article 21 of the Constitution of India. The procedure laid in that behalf, therefore, must be strictly complied with. Exts. 4, 5 and 6, in our opinion, are not admissible in evidence in the criminal trial."
14. In terms of the ratio laid down in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee (supra), in a criminal trial it is mandatory to prove a document through its author. Even if no objection has been raised at the time of marking of the said document as an exhibit during the course of trial through some other witness, the same will not preclude the accused in an criminal case from contending that the document in question has not been proved as per law.
15. In the present case, the Motor Inspection Reports of TSR bearing registration number DL-1RG-4347 and Skoda Octavia bearing registration no. DL-3CY-3277 Ex. PW7/T and Ex.PW7/U have been exhibited in evidence through the IO PW7 SI Attar Singh and were not put to T.U. Siddiqui PW9 who was their author.
16. Perusal of the Trial Court record further reveals that the MLC report of appellant Abhishek bearing no. 30322 of RML Hospital dated 15.01.2004 has not been exhibited in evidence through any witness at all.
17. In terms of the ratio laid down in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee (supra), the motor inspection reports mentioned above have not been proved as per law. The MLC report of appellant Abhishek has not at all been exhibited in the trial.
18. For the reasons recorded above, the impugned orders are set aside and the matter is remanded to the Ld. Trial Court with the direction to examine the author of the above mentioned documents in terms of the ratio Abhishek vs. State CA No.10 of 2016 7/9 laid down in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee (supra) and thereafter to dispose of the case afresh.
19. Appeal disposed off in the above terms. Appellant to appear before the Ld. Trial Court on 16.02.2017 at 2pm.
20. Trial Court record be sent back along with copy of this judgment to the Ld. Trial Court. Appeal file be consigned to record room.
Announced in the open Court (REETESH SINGH)
on 2nd February, 2017 ASJ-02/FTC, PHC/NDD
02.02.2017
Abhishek vs. State
CA No.10 of 2016 8/9
Abhhishek vs. State
CA No. 10 of 2014
02.02.2017
Present: Appellant in person with Ld. Counsel Sh. P. K. Dubey.
Sh. Irfan Ahmad, Ld. Addl. PP for the State / respondent.
Clarifications sought.
Be awaited for orders at 4pm.
(Reetesh Singh) ASJ-02/FTC, New Delhi District, Patiala House Courts, New Delhi 02.02.2017 At 4pm Present : As above.
Vide separate judgment, the appeal of the appellant is disposed off. Appellant to appear before the Ld. Trial Court on 16.02.2017 at 2pm.
TCR along with copy of the judgment be sent back to the Ld. Trial Court. Appeal file be consigned to the Record Room.
(Reetesh Singh) ASJ-02/FTC, New Delhi District, Patiala House Courts, New Delhi 02.02.2017 Abhishek vs. State CA No.10 of 2016 9/9