Delhi District Court
Surinder Kumar vs State (Thru. Nct Of Delhi) on 22 January, 2010
Page No. 1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution : 14.07.2005
Date of judgment reserved on : 06.10.2009
Date of decision : 22.01.2010
Criminal Appeal No. 90/2008
IN THE MATTER OF :-
Surinder Kumar
S/o Sh. Jessi Ram
R/o House No. 4, Delhi University,
Civil Lines, Delhi. ..... Appellant
Versus
STATE (Thru. NCT of Delhi) ..... Respondent
JUDGMENT:
This is a appeal filed by appellant / convict Surinder Kumar who has been convicted for offences u/s. 279 / 304A IPC by Ld. Magistrate by the judgment dt. 04.05.2005 and has been awarded imprisonment sentence with fine for these offences. A criminal case FIR 39/92 had been registered at police station Lodhi Colony and the prosecution case is that a Maruti Van bearing registration no. DBB-5830 was parked on the road side on the Max Muller Marg, near Diwan Chand Arya School, Lodhi Colony. Informant Mandal who has been examined as PW-3 in the trial along with one Nanhe examined as PW-9 and the deceased Ram Avtar were sitting in that Van. They had come to Lodhi Colony to attend a wedding party. It was around 1.15 PM, when a bus operating under DTC route, Page No. 2 bearing registration no. DBP-1317 , came from Lodhi Colony side towards Max Muller Marg and it was in a very high speed and the bus hit Maruti van on the front side of the Van wherein all the three occupants in the Van were seriously injured. Bus stopped and the name of the driver of the bus was revealed Surinder Kumar. Later on victim Ram Avtar succumbed to injury and the postmortem report Ex PW-4/A revealed cause of death was cerebral damage consequent upon injuries due to blunt force impact. Injuries were ante-mortem in nature.
The case was investigation by SI Ram Niwas then posted at Police station : Lodhi Colony. Both the vehicles were seized and were got mechanically examined. FIR had been registered on the statement of injured Baleshwar Mandal. The necessary investigation proceedings were conducted and concluded and finally the accused Surinder Kumar S/o Jessi Ram was charge sheeted.
Accused was tried as a summon trial case with notice u/s. 251 CrPC for the offences punishable u/s. 279/337/304A IPC given to the accused and accused pleaded not guilty and claimed trial.
Trial court record reveals that in all 10 prosecution witnesses have been examined out of a total 18 witnesses cited in the list. It is a matter of record that all the 10 witnesses have been recorded with cross examination NIL, opportunity given. Even , eye witnesses of this accident who were the victim themselves namely Baleshwar PW-3 and Nanhe as PW-9 have also not been cross examined at all. Baleshwar has been examined on 7.11.1997 and he deposed in evidence that he had gone to Lodhi Colony to attend a wedding on 09.02.1992. Outside the pandaal on the road, he , Nanhey and Ram Avtar Singh were sitting in Maruti Van. The DTC bus No. Page No. 3 DBP-1317, driven by the accused (present in court) came at a very fast speed from opposite side and struck against the stationery van as a result of which this witness, Nanhey & Ram Avtar sustained injuries. He further deposed that they were then removed to Safdarj Jung Hospital by the police, where police recorded his statement which he proved as Ex PW-3/A. He further deposed that Ram Avtar Singh died in the hospital. There is no cross examination on the witness and it was recorded as NIL, opportunity given.
Similar is the testimony of another eye witness / injured / victim Nanhey PW-9. He has also deposed in evidence that their Van was parked near Diwan Chand School, Lodhi Colony and it was around 1.15 PM that a bus came from the opposite side in a very fast speed and accused facing trial in the case ( present in court) was driving the bus and the bus struck against Maruti Van as a result of which occupant in the Van sustained injuries and this witness became unconscious. He further deposed that accident occurred because of the fast and negligent driving by accused and Ram Avtar Singh died because of the injuries sustained in this accident. There is also no cross examination on this witness.
Other prosecution witness examined were further supporting witnesses, some of them of formal nature. PW-1 is the brother of the deceased who had identified body of the deceased during postmortem proceedings.
PW-2 is again a police official who had taken up mechanical inspection of Maruti Van and bus involved in this accident and proved his report as Ex PW-2/A and PW-2/B respectively.
PW-4 and PW-5 are the Doctors from Safdarjung Hospital. PW-4 has proved the postmortem report and PW-5 has proved Page No. 4 injuries of one of the injure.
PW-6 is the duty officer who had recorded FIR of this case and proved it as Ex. PW-6/A. Pw-7 is the registered owner of the bus involved in this case and deposed that accused facing trial in this case was the driver on the bus, employed under him on the date of accident and he was driving the bus at the time of accident.
PW-8 is again a doctor who proved MLC of one of the injured and finally a police official wrongly mentioned as PW-8 who was posted on a PCR vehicle on the date of accident and on receiving the information regarding this accident he took injured persons from the place of accident to the hospital.
None of these prosecution witnesses has been cross examined on behalf of accused.
Examination of accused to explain this prosecution incriminating evidence when taken up by Ld. MM which was recorded in the form of a memorandum in terms of 281 CrPC, once it was recorded on 16.04.2003 wherein accused was stated to have denied the prosecution case and pleaded that he is innocent and was falsely implicated. It is, further recorded that he was driving the bus but was not all at fault and the Van driver was at fault as he struck against the bus. Accused desired to lead evidence in defence but then file record reveals that despite opportunities no defence evidence was examined.
File record further reveals that prosecution then moved an application u/s. 311 CrPC to examine IO and one constable. That prayer was granted but then despite a few adjournments taken for that purpose, prosecution failed to produce the investigating officer and thus prosecution evidence was closed and once again examination of accused by way of an memorandum u/s. 281 CrPC, was taken up. It is recorded in Page No. 5 this memorandum of examination that when entire incriminating evidence was put to the accused he denied that he was driving the bus and he denied the responsibility for the death of Avtar Singh and injuries to Baleshwar Mandal and Nanhey. He is stated to have explained that witnesses had deposed falsely and with this examination , matter was finally heard.
Accused has been found guilty for the offence as seen above. Ld. MM has observed at page 12 of this impugned judgment that none of the prosecution witness had been cross examined by accused which led to an inference that he has admitted un-controverted and un-rebutted testimony to be correct. It is observed that PW-3 & PW-9 specifically deposed that accused appearing in this case was driving the offending vehicle at a fast speed which was rash and negligent driving and it was the cause of the accident. Ld. MM, has further found that since the vehicle of the victim namely Maruti Van was in a stationery condition when hit by the bus and the witnesses deposed that bus was driven in a very high speed, an inference of culpable rash and negligent could be drawn and support could be taken from Supreme Court judgment titled S. N. Sharma v State of AP, 1972,SC, 685. It has been further found that non examination of IO since caused no prejudice to the accused, he was liable to be convicted.
The appeal has challenged legality of this conviction on the ground wherein one of the ground is that there was no cross examination on any of the witnesses examined in this trial which has caused a serious prejudice to defence of the accused. I find convinced with this ground pleaded in this appeal to examine the legality of the conviction when accused remained un-defended throughout the trial. Ld. Addl. PP, tried Page No. 6 to convince this court that once accused was on bail and had an opportunity to engage a defence counsel and to cross examine the witness then a negligence or failure on his part should not now come to his rescue. It is argued and submitted that a categorical prosecution case since the registration of the FIR is that a Maruti Van was stationery, parked on the left side of the road and if such a stationery Maruti Van occupied by the victim was hit by moving vehicle on the road then certainly it was for the accused to explain as to how it happened, rather the principles of the res-ipsa-loquitor could be found invoked. It is submitted and argued that now accused should not be given a benefit of his own lapse when he did not care to cross examine the witnesses, an inference whereby could be drawn that he had not disputed their testimony and thereby conviction judgment recorded with reasoning and based on the evidence on record should not be disturbed. I have appreciated these submissions.
Accused is un-represented in this appeal also. Section 304 CrPC provides for a legal aid to an accused who was not represented by a pleader and further where it appears to the court that accused had no sufficient means to engage a pleader. This provision is primarily applicable in a trial pending before Sessions court. Further clause 3 of this provision provides that State Government by notification might direct that the provisions of this section were applied to other cases of trial before other court. Importance of a fair and reasonable defence to the accused while facing a charge on a criminal case has been examined by the Supreme Court in a case Khatri v State of Bihar, AIR, 1981, SC, 928, where it has been held that trial is vitiated when the accused persons are not about free legal assistance and they remained un-defence Page No. 7 during trial. Again in a judgment given by Bombay High Court reported as Sanjay Khandrao v. State of Maharasthra, 2007, Cr.L.J., 545, that the right of accused to be defended is essentially connected with right to life. Provisions of section 304 CrPC give effect to the Constitutional mandate contained in Article 21 and 39A of the Constitution and thus the right to defend is essential concomitant with the right to life. Benefit of an adequately competent advocate to defend accused when he is unable to defend himself is factually part of article 21 of the constitution.
Coming to the facts of the present case, though IO has not been examined in this case but the site plan prepared by the IO which is part of the charge sheet reveals that the place of accident is a open 30 ft. wide road. The Maruti Van which was occupied by the victims is parked on the extreme left side on the road. The bus driven by accused is going on the road in the front-opposite direction of the Maruti Van meaning thereby the bus has gone to the extreme right side on the road when it caused accident by hitting the Maruti Van. The road is 30 ft. wide . The eye witness PW-3 and PW-9 have not so specifically deposed that it w 30 ft. wide road and thus the Maruti Van standing parked on the extreme left side was when hit by the bus, the bus had come on its extreme right side on the road and such a rash and negligent driving resulted in this accident. Witnesses have simply deposed that Van was stationery on the left side and the bus being driven in a high speed , hit the Van on its front side.
The disturbing feature in this trial is that there is no cross examination on the witnesses at all. Order sheets recorded in the trial court file for the dates when these two eye witnesses were examined or that when remaining other Page No. 8 witnesses have been examined with no cross examination despite opportunity given, only accused is present and there is no advocate at all for accused to defend him. In fact a number of order sheets recorded only presence of accused as on bail and there is no presence of his advocate. Ld. trial court ought to have been cautious of a fair trial to the accused and when eye witnesses were examined, reasons should have been recorded as to why there was no cross examination on the witness and if it was for the reason that there was no advocate available / engaged by accused to defend him then some competent advocate ought to have been provided to the accused to put his defence in the cross examination of the witness. At least Ld. trial court should have been alive to a factual situation that the bus driven by accused had gone to the extreme right side of the road which was 30 ft. wide and then it had hit the Maruti Van parked on the road side and was stationery. At least accused should have been made to come out about his version of the accident and that version should have been put to the eye witness in their cross examination. Absolute no cross examination, to my view , has resulted in a serious prejudice to accused which in - fact is no trial at all. Conviction on un-crossed testimony of the witnesses thereby accepting evidence as un-challenged and un-rebutted only for the reason that there was no defence counsel to defend accused and neither the version of accused was brought by being put to the witness in the cross examination, it cannot stand scrutiny of provision of section 304 CrPC.
Even examination of accused to explain the incriminating evidence recorded u/s. 281 CrPC fails to meet the requirement of law that accused got an opportunity to explain the evidence and the circumstances. It ought to have been put specifically Page No. 9 to the accused that Maruti Van hit by the bus driven by accused was there parked on the extreme its left side of the road whereas bus coming from the opposite direction when hit the Van, it had gone in the extreme right side of the road. Memorandum simply recorded that all incriminating evidence was put to accused which he denied in earlier examination recorded in April 2003, accused came up with an explanation that he was not at all fault and the cause of accident was the driver of the van had fault as he struck his vehicle against the bus.
To my considered view, trial has been vitiated for no proper opportunity for defence by providing accused an advocate at State expense if he had no advocate appearing with him to defend him . The conviction judgment deserves to be set aside but then case needs to be remanded to trial court wherein witnesses of this accident be re-examined with a proper opportunity to the accused to cross examine them. The trial court rather itself would have to ensure the presence and the examination of the investigating officer (IO) instead of leaving it to the prosecution to serve him and then to examine him . It is a serious case where one person has died. The trial court can put the responsibility on the SHO of the concerned police station to ensure the production of the eye witnesses of this accident for their examination afresh with cross examination on the witnesses by defence to be provided to the accused if required at State expense. Accordingly, the trial of the case is remanded to Ld. trial court.
Announced in the Open (J. R. ARYAN) court on 22/01/2010. ADDITIONAL SESSIONS JUDGE NEW DELHI.
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