Delhi District Court
State vs . Lakhan on 3 July, 2013
IN THE COURT OF SH. SANDEEP GARG, METROPOLITAN
MAGISTRATE (SOUTH)07, NEW DELHI
FIR No. : 179/1996
U/s : 279/337/304A IPC
PS : Mehrauli
State Vs. Lakhan
JUDGMENT
a The Sl. No. of the case : 683/1/96
b The date of commission : 28.03.1996
c The date of Institution of the case : 20.12.1997
d The name of complainant : Sri Mool Chand
e The name of accused : Lakhan
: S/o Shri Hori Lal,
: R/o Village Fatiabad,
: PS Fatiabad, District Agra, UP
: Also r/o Jhuggi, Balbir Nagar,
: Bhati Mines, Mehrauli,
: New Delhi
f The offence complained of : 279/337/304A IPC
g The plea of accused : Pleaded not guilty
h Arguments heard on : 29.06.2013
i The final order : Convicted
j The date of judgment : 03.07.2013
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The accused Lakhan has been sent for trial on the allegations of the complainant Mool Chand that on 28.03.1996, at about 07.30 am, opposite MCD Dispensary, Fatehpur Beri road, New Delhi, within jurisdiction of P.S. Mehrauli, he was driving truck bearing registration no. DEG2439 in a rash or negligent manner so as to endanger human life and personal safety of others and while so driving, he struck against one scooter bearing registration no. DL6SA5458, make Bajaj Chetak which resulted in causing simple injury on the complainant Mool FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 1 of 21 Chand and death pillion rider Laxman, which did not amount to culpable homicide. The accused is thus alleged to have committed offences punishable u/s 279/337/304A. Investigation was conducted and chargesheet was filed in the court on 20.12.1997.
2. Notice u/s 251 Cr.P.C. for commission of offences punishable u/s 279/337/304A IPC was served upon the accused on 16.09.1999 to which he pleaded not guilty and claimed trial.
3. In order to substantiate its case, the prosecution has examined nine witnesses.
4. PW1 is HC Mahavir Singh, who being duty officer, proved DD No. 10 A dated 28.03.1996 PS Mehrauli, Ex.PW1/B and FIR Ex.PW1/A.
5. PW2 is the superdar Dayaram. He has deposed that on 29.03.1996, his driver namely Lakhan told him that an accident had taken place with truck bearing registration no. DEG 2439 (half body), driven by him, on the evening of 28.03.1996. Thereafter, he alongwith accused Lakhan went to PS Mehrauli. They met IO/SI Chinta Singh at Qutub Check Post. He told him about the accident which had taken place when the accused Lakhan was driving the truck. IO SI Chinta Singh issued a notice, Ex.PW2/A to which he submitted his reply giving details of the driver of the vehicle and his driving license. He also produced the offending truck before the police which was seized vide seizure memo, Ex.PW2/B. The IO also issued a notice whereby he requisitioned the documents of ownerhsip of the truck and in response to the said notice, he handed over documents to establish that the ownership documents were missing and a report in this regard had already been lodged at PS, Central Faridabad. IO seizure the said document vide seizure memo Ex.PW2/C. He also handed over xerox copy of the registration certificate and sale letter pertaining to the truck to the IO. The accused was FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 2 of 21 arrested by IO SI Chinta Singh in his presence and his driving license was seized. He got the offending truck released on superdari by furnishing superdarginama, Ex.PW2/D. The witness correctly identified the accused present in the court.
During cross examination by the Ld. defence counsel, the witness has admitted that when he received the truck on superdari, no fresh damages were found on the body of the truck. He further admitted that the accident had not taken place in his presence.
6. PW3 is Motilal. He has deposed that he does not remember the year. However, on 28th March, he was informed by his neighbour that his son Lakshman had met with an accident at Fatehpur Beri. Thereafter, he reached at the spot at about 08.0009.00 am, where several persons had already gathered. After sometime, police also reached at the spot. He identified the dead body of his son Lakshman in the presence of the police officials. The dead body was taken to AIIMS hospital. He also went to AIIMS hospital. After conducting the postmortem, the dead body was handed over to him. He does not remember whether his statement was recorded by the police or not.
During cross examination by Ld. APP for the State, the witness deposed that he is totally illiterate and he does not remember the name of the person who had given information to him regarding occurrence of the accident. He admitted that some written work was done by the police in his presence and the site plan might have also been prepared at the spot. Some photographs were also taken by the photographer, who was called by the police. He admitted that the scooter was seized in his presence. However, he does not remember the registration number of the scooter. His relative namely Ram Khiladi was also accompanying him when he went to AIIMS hospital. After the postmortem, the dead body was received by him.
FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 3 of 21
During his crossexamination by Ld. Defence Counsel, the witness has stated that he cannot say as to how many statements were recorded by the police. He also cannot disclose about the number of photographs obtained at the instance of the police.
7. PW4 is the complainant Mool Chand. He has deposed that on 28.03.1996, he was driving scooter bearing registration no. DL6SA5458 make Bajaj Chetak, belonging to his friend. His maternal uncle namely Laxman was accompanying him on the scooter as a pillion rider. While they were coming to Chattarpur via Satbari road, Gurgaon, at about 07.30 am and had reached in front of MCD dispensary, Fatehpur Beri, a truck bearing registration no. DEG 2439, half body came from their backside at a very high speed. The said truck was being driven in rash and negligent manner by its driver and while so driving, the said truck struck against their scooter, as a result of which he and his maternal uncle fell down on the road. He fell down towards his left side, while his maternal uncle fell down on the right side of the road. The driver of the truck stopped the vehicle and after seeking the scenario, he fled away from the spot alongwith truck. He had noted down the registration number of truck when the truck was stopped. The driver of the truck fled away towards Chattarpur. His maternal uncle died on the spot and he also sustained injuries on his person. He called the PCR at number 100 from the nearby STD booth and within half an hour, the police reached at the spot at about 08.15 am. He was also interrogated by the police. In the meanwhile, two police officials came from PS Mehrauli. His statement, Ex.PW4/A was recorded. The spot was inspected at his instance and site plan was prepared. The scooter was seized vide seizure memo Ex.PW4/B. The dead body of his maternal uncle was taken to AIIMS hospital in a private Tata 407 tempo. The father of the deceased and other relative also accompanied him to the hospital. After identification, the FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 4 of 21 dead body was received by them. The photographer called by the police obtained photographs. The witness correctly identified the accused present in the court to be the driver of the offending truck.
During cross examination by the Ld. Defence Counsel, the witness has deposed that at the time of accident, he was residing at Kirti Nagar, Gurgaon and was working with Frontier Technology Pvt. Ltd. He went to meet his maternal uncle viz. Laxman as he had called him on telephone. His uncle was working as a mechanic at Bhati Mines, Sanjay Colony. He admitted that Laxman was not his real maternal uncle. His maternal uncle was residing at the jhuggi of Bhati Mines. He does not remember the day of the week, but it was on 27.03.1996 that he had gone to meet his maternal uncle. He does not remember the time when he had reached at the residence of his maternal uncle. He admitted that the scooter in question does not belong to him. The scooter was of Dilbagh Singh. He learned driving of scooters and motorcycles one year prior to the incident. He is having a valid driving license. He denied that the driving license was procured by him after the accident. He does not know as to how his maternal uncle had sustained injuries on his leg prior to the accident. The accident took place at about 07.30 am. The speed of the scooter at the time of accident was approximately 3040 km per hour. He cannot tell as to how much traffic was going ahead and behind him. He does not remember as to whether there was traffic on the road or not. He came to know about the offending vehicle when it was stopped by the driver at a distance of 2025 feet and he noted down the registration number of the offending vehicle. He admitted that after the accident, many people gathered there from the nearby locality and some vehicles also stopped there. Within 12 minutes after the accident, he realized that his maternal uncle had died and thereafter, he immediately called the police at number 100. The police reached at the spot at FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 5 of 21 about 08.00 am. They remained at the spot for about 1 hour after the incident. The police had recorded his statement three times i.e. one at the spot, second in the hospital and the third at the police station. Ram Khiladi's statement was also recorded by the police, who had reached at the spot 20 minutes after the accident. He denied that he himself was driving the scooter at a high speed as a result of which the scooter jumped on a speed breaker resulting in he and his maternal uncle falling down and sustaining injuries. He denied that he had falsely implicated the driver of the truck after he realized that his maternal uncle had died. He does not remember as to how many papers were signed by him. He denied that he signed all the papers at the PS. He denied that the accident was caused due to his own negligence and driving at a high speed.
8. PW5 is Revat Ram, mortuary attendant, AIIMS, who proved the postmortem report of deceased Laxman, bearing no. 284/96 dated 28.03.1996, Ex.PW5/A by identifying the handwriting and signatures of Dr. Anand Kumar Tyagi.
9. PW6 is Ct. Lokender Singh. He has deposed that on 28.031996, he joined investigation of the case alongwith first IO HC Suresh Kumar. They both reached at Fatehpur Beri where one scooter bearing registration no. DL 6SA 5458 was found in an accidental condition and one person was lying dead on the road. Head injuries were visible on the dead body. The driver of the scooter namely Mool Chand was present at the spot. IO recorded statement of the eye witness, made an endorsement on the same and handed over the rukka to him. He went to the PS and got the FIR register. Thereafter, he returned at the spot and handed over copy of FIR and rukka to the IO. The scooter was seized vide seizure memo, Ex. PW4/A. The dead body was taken to the hospital where its postmortem was conducted. The accused had run away from the spot with the offending vehicle and FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 6 of 21 therefore, he could not be arrested.
10. PW7 is the mechanical inspector Retd. SI Nand Lal Dua. He has deposed that on 11.04.1996, he conducted mechanical inspection of truck bearing registration No. DEG 2439 at PS Mehrauli on the request of the IO. He prepared his report which is Ex. PW7/A, as per which no fresh damage was found on the truck and the truck was fit for road test.
11. PW8 is the second IO SI Chinta Singh. He has deposed that on 29.03.1996, further investigation of the case was handed over to him. On that day, he got scooter bearing registration no. DL SA 5458 mechanically inspected by ASI Devender Singh. The scooter was released on superdari after furnishing superdaginama, Ex. PW8/A. On 11.04.1996, he issued notice u/s 133 M V Act, Ex. PW8/B to the owner of the truck. The owner of the truck submitted his reply which is Ex. PW2/A. The owner of the truck produced the accused Lakhan and truck bearing registration no. DEG 2439. The report regarding missing of documents i.e. RC, permit, insurance and fitness certificate in respect of truck bearing no. DEG 2439 were seized vide seizure memo, Ex. PW2/C. He seized the driving license of the accused vide seizure memo, Ex. PW8/C. The accused was released on furnishing personal bond and surety bond, Ex. PW8/D and Ex. PW8/E respectively. The truck was got mechanically inspected vide report, Ex. PW7/A and it was released on superdari on furnishing of superdaginama, Ex. PW2/D. He recorded the statement of witnesses. The witness correctly identified the accused present in the court.
During crossexamination by the Ld. Defence Counsel, the witness has stated that the mechanical inspection of the truck was conducted by SI Nand Lal. He recorded the statements of HC Suresh Kumar and SI Nand Lal on the day the accused was arrested.
FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 7 of 21
12. PW9 is first IO HC Suresh Kumar. He has deposed that on 28.03.1996, after receipt of information vide DD No. 32 A, he alongwith Ct. Lokender reached at the spot i.e. near MCD dispensary, Fatehpur Beri where they found one scooter bearing registration no. DL 6SA 5458 and one dead body lying on the road, towards right side of the scooter. They also met one eye witness viz. Mool Chand, who narrated the incident to him. In the meantime, Ct. Vijender also reached at the spot. The complainant Mool Chand had also sustained injuries in the accident. A photographer was called at the spot, who took certain photographs. He recorded the statement of complainant Mool Chand and sent the dead body to AIIMS mortuary through Ct. Vijender for getting its postmortem conducted. The complainant Mool Chand also went to the hospital for medical treatment. He prepared rukka, Ex. PW9/A and handed over the same to Ct. Lokender. He also handed over the scooter and helmet to Ct. Lokender. The relatives of the deceased also reached at the spot and thereafter, they went to the mortuary of AIIMS hospital. He prepared site plan at the instance of complainant Mool Chand which is Ex. PW9/B. He recorded the statements of Moti Lal and Ram Khiladi, who identified the dead body of deceased Laxman. The statements of Moti Lal and Ram Khiladi, Ex. PW9/C and Ex. PW9/D. The dead body was handed over to relatives of the deceased vide handing over memo, Ex. PW9/E. He also prepared documents pertaining to the postmortem, which are Ex. PW9/F and Ex. PW9/G. Thereafter, he deposited the scooter bearing registration no. DL 6SA 5458 and the helmet in the Malkhana. Further investigation of the case was marked to SI Chinta Singh.
13. Statement of accused was recorded in terms of section 294 Cr.P.C., on 03.03.2012, whereby he had not disputed the genuineness of postmortem report No. 284/96 dated 28.03.1996 in respect of dead body of deceased Laxman.
FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 8 of 21
Accordingly, the postmortem report of deceased Laxman was exhibited as Ex. A1.
14. All the incriminating evidence was put to the accused Lakhan and his statement U/s 281 Cr.P.C. was recorded to which he denied his involvement in the offence stating that no accident had taken place with the truck driven by him. As a matter of fact, he had driven the truck on the same route on the date of the alleged accident and was falsely implicated in the case after 56 days. Two labourers were accompanying him in the truck driven by him on the date of the alleged accident. The accused also preferred to adduce defence evidence.
15. In order to substantiate his defence, the accused examined three witnesses.
16. DW1 is Leeladhar. He has deposed that accused Lakhan, Ram Babu, Islam and some other persons, whose names he does not remember, used to work with him as labourers at village Bans, ahead of Fatehpur Beri, New Delhi. They worked with accused Lakhan at the said village from 20.03.1996 till 10.04.1996. The accused was picked up by the police during the said period and he remained behind the bars at police station Mehrauli for about 510 days. Accused Lakhan was falsely implicated in the case by one Daya, resident of Fatehpur Beri. Accused Lakhan had informed him that fake driving license was got prepared by the registered owner of the truck in order to get the vehicle released.
During crossexamination by Ld. APP for the State, the witness has stated that accused Lakhan is his nephew. He does not remember the date when the accused was picked up by the police. He admitted that neither he, nor any other labourer had gone to the police station to enquire as to why Lakhan was picked up by the police. He admitted that accused Lakhan had no enmity with the police officials. He further admitted that accused Lakhan had never informed him that he FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 9 of 21 had any enmity with Dayaram. He does not know the names and address of the police officials who had picked up Lakhan as he had not seen their badges. There were 34 police officials alongwith Dayaram, who had come to pick up Lakhan. He admitted that he and none of the other labourers working with him had lodged any complaint against the police officials and Dayaram for falsely implicating the accused Lakhan. He does not remember the name of the person who had taken them to the building which was being constructed. He cannot produce the attendance register maintained by the contractor, wherein the attendance of the labourers was marked.
17. DW2 is Islam. He has deposed that accused Lakhan, Ram Babu and some other persons used to work with him as labourers at village Bans. The accused was picked up by the police when they were working and taken to an unknown place. After some days, he met accused Lakhan who told him that he was not driving the offending vehicle on the day of the incident.
During crossexamination by Ld. APP for the State, the witness has stated that he does not remember the date when the accused was picked up by the police. He admitted that neither he, nor any other labourer had gone to the police station to enquire as to why Lakhan was picked up by the police. He admitted that accused Lakhan had no enmity with the police officials. He further admitted that accused Lakhan had never informed him that he had any enmity with Dayaram. He does not know the names and address of the police officials who had picked up Lakhan as he had not seen their badges. He admitted that he and none of the other labourers working with him had lodged any complaint against the police officials and Dayaram for falsely implicating the accused Lakhan. The contractor, with whom they used to work, did not maintain any attendance register.
18. DW3 is Ram Babu. He has deposed that accused Lakhan, Leeladhar, FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 10 of 21 Islam and some other persons used to work with him as labourers at village Bans since 1996. He had worked alongwith accused Lakhan and other labourers for 20 days. The accused was picked up by the police when they were working and taken to an unknown place. After some days, he met accused Lakhan who told him that he was not driving the offending vehicle on the day of the incident.
During crossexamination by Ld. APP for the State, the witness has stated that he had worked with Leeladhar and Islaam for six months after the alleged accident. He admitted that he had worked with Leeladhar and Islaam for almost one year in 1996. He used to meet Leeladhar and Islaam in the years 1997 and 1998 as well. During the said period, Leeladhar and Islaam had told him that accused Lakhan has been falsely implicated in this case. He came to know from the accused falsely implicated in this case recently when he met him at Mehrauli. He neither he, nor any other labourer had gone to the police station to enquire as to why Lakhan was picked up by the police. He admitted that accused Lakhan had no enmity with the police officials. He further admitted that accused Lakhan had never informed him that he had any enmity with Dayaram. He does not know the names and address of the police officials who had picked up Lakhan as he had not seen their badges. He admitted that he and none of the other labourers working with him had lodged any complaint against the police officials and Dayaram for falsely implicating the accused Lakhan. The contractor, with whom they used to work, did not maintain any attendance register.
19. The court has heard the submissions made by Ld. APP for the state as well as the Ld. defence counsel.
Ld. APP for the state submits that the accused is liable to be convicted for offences charged as the prosecution has been able to bring home guilt of the accused.
FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 11 of 21
20. On the other hand, it is contended by the Ld. Defence Counsel that a perusal of the mechanical inspection report of the offending truck, Ex. PW7/A shows that no fresh damage was found on any part of the truck. The vehicle was found to be fit for road test. This establishes that no such accident, as alleged, had taken place with the offending truck bearing registration no. DEG 2439 and therefore, the accused deserves to be acquitted of the charges levelled against him.
Ld. APP for State submits that the offending vehicle was a truck, which is a heavy vehicle. It is not essential that in every collision damage is caused. Moreover, the collision in the present case took place after the offending truck hit the scooter bearing registration no. DL 6SA 5458 from backside. It is very much possible that in the collision, no damage was caused to the offending truck. Moreover, the accident had taken place on 28.03.1996 and the offending truck bearing registration no. DEG 2439 was produced by its owner PW2 Daya Ram on 11.04.1996. It has established on record that the accused had fled away from the spot after stopping for a few movements immediately after the accident. Therefore, he had got ample time of about two weeks to tamper with the evidence and get the offending truck repaired/repainted. Therefore, there is no merit in the contention made by the Ld. defence counsel.
21. Secondly, it is contended by the Ld. defence counsel that whereas the accident had taken place on 28.03.1996, the accused was arrested only on 11.04.1996 which establishes that the accused was falsely implicated in the present case. The offending truck was also seized on 11.04.1996 i.e. about 14 days after the alleged incident. Moreover, the IO did not get any TIP of the accused conducted to establish that it was infact the accused, who was driving the offending truck at the time of the alleged accident and that the accused was seen by the complainant Mool Chand while he was allegedly driving the offending FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 12 of 21 truck. In view of the same, the prosecution has miserably failed to substantiate its case and the accused deserves to be acquitted of the charges levelled against him.
On the other hand, it is contended by Ld. APP for State that it has been established on record that the complainant PW4 Mool Chand had seen the accused when he stopped the offending truck and got down from it immediately after the accident. However, the accused fled away with the offending truck after a few moments. Since the complainant had disclosed the registration number of the offending truck in his complaint Ex. PW4/A itself, the IO SI Chinta Singh gave notice 133 M V Act, Ex. PW8/B to the owner of the offending truck, who gave his reply, Ex. PW2/A and produced the accused and the offending truck before the IO. In his reply Ex. PW2/A, PW2 Daya Ram, owner of the offending truck, has stated that on 28.03.1996 at about 07.30 am, his truck bearing registration no. DEG 2439, was driven by the accused Lakhan. He also provided particulars of the driving license of the accused. The accused has not attributed any motive to PW2 Daya Ram for falsely implicating him in the present case. The delay in apprehending the accused occurred due to the fact that he had fled away from the spot immediately after the accident. As regards, failure of the IO in not getting the TIP of the accused conducted, the same is not fatal to the prosecution case as the accused was identified both by PW2 Daya Ram and by the eye witness PW4 Mool Chand while deposing in the court. Since the identity of the accused has been established during the trial, there is no merit in the contention raised by the Ld. defence counsel. Reliance is also placed upon judgment delivered by the Hon'ble Supreme Court in the case of Ravi Kapur Vs. State of Rajasthan (2012) 9 SCC 284 wherein it has been held that court identification itself is a good identification and it is not necessary that it is always preceded by Test Identification Parade.
FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 13 of 21
22. Thirdly, it is contended by the Ld. defence counsel that although photographs were obtained on the spot, but the same have not been produced during trial. Even the photographer was not traceable. The photographs of the spot were a significant piece of evidence which would have enabled the court in appreciating various things including the marks on the road, the position of the dead body and topography of the place where the accident had taken place. Since the prosecution has failed to adduce this vital piece of evidence, it has failed to discharge its onus of establishing the guilt of accused beyond a reasonable doubt. The accused deserves to be given benefit of doubt.
On the other hand, it is contended by Ld. APP for State that photographs of the spot are only a corroborative piece of evidence and not substantive evidence. The prosecution has successfully discharged the onus of establishing the guilt of the accused beyond a reasonable doubt. PW4 Moolchand has given a detailed description of the sequence of events culminating in the commission of the offence. The site plan, Ex. PW9/B prepared by first IO HC Suresh Kumar pinpoints the places where the scooter and dead body of deceased Laxman were found after the accident. Moreover, PW3 Motilal, PW6 Ct. Lokender Singh and PW9 first IO HC Suresh Kumar have also given description of the spot when they reached there after the incident. Therefore, sufficient evidence has come on record in order to enable the court to appreciate the situation at the spot, both at the time of accident and immediately thereafter. Therefore, there is no merit in the contention raised by the Ld. defence counsel.
23. Fourthly, it is contended by the Ld. defence counsel that no independent public witness was involved during investigation, although as per the admission of PW4 Mool Chand during his crossexamination, many people had gathered at the spot. PW3 Moti Lal and PW4 Mool Chand are both interested FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 14 of 21 witnesses and their testimonies cannot be relied upon. In the absence of the evidence of independent public witnesses, the prosecution has miserably failed to substantiate the guilt of the accused. Therefore, the accused deserves to be acquitted charges levelled against him.
On the other hand, it is contended by Ld. APP for State that PW4 Mool Chand has deposed that many people had gathered at the spot 'after' the accident had already taken place. None of the persons, who had gathered at the spot, had witnessed the accident. Therefore, there was no advantage in joining them in the investigation. Moreover, both PW3 Motilal and PW4 Mool Chand had withstood the stringent test of crossexamination and nothing material has come out during their crossexamination which establishes the veracity of their testimonies. There is no merit in the contention made by the Ld. Defence Counsel.
24. The court has perused the record with the assistance of Ld. APP for State and the Ld. Defence Counsel.
25. The contention of the Ld. defence counsel that during mechanical inspection, no fresh damage was found on any part of the truck which establishes that no such accident, as alleged, had taken place with the offending truck bearing registration no. DEG 2439, is not tenable as it is not essential that in every collision damage is caused. In the present case, the collision took place after the offending truck hit the scooter bearing registration no. DL 6SA 5458 from backside. It is very much possible that in the collision, no damage was caused to the offending truck.
26. The second contention of the Ld. defence counsel is that no test identification parade of the accused was got conducted by the IO to establish that it was infact the accused, who was driving the offending truck at the time of the alleged accident and that he was falsely implicated in the present case after about a FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 15 of 21 fortnight.
It has been established from the testimony of complainant PW4 Mool Chand that he had seen the accused when the accused stopped the offending truck and got down from it immediately after the accident. However, the accused fled away with the offending truck after a few moments. The complainant had disclosed the registration number of the offending truck in his complaint Ex. PW4/A itself and during investigation, IO SI Chinta Singh gave notice 133 M V Act, Ex. PW8/B to the owner of the offending truck, who gave his reply, Ex. PW2/A and produced the accused and the offending truck before the IO. In his reply Ex. PW2/A, PW2 Daya Ram, owner of the offending truck, has stated that on 28.03.1996 at about 07.30 am, his truck bearing registration no. DEG 2439, was driven by the accused Lakhan. He also provided particulars of the driving license of the accused. The accused has not attributed any motive to PW2 Daya Ram for falsely implicating him in the present case. The delay in apprehending the accused is justified as the accused had fled away from the spot immediately after the accident. As regards, failure of the IO in not getting the TIP of the accused conducted, the same is not fatal to the prosecution case as the accused was identified both by PW2 Daya Ram and by the eye witness PW4 Mool Chand while deposing in the court. Since the identity of the accused has been established during the trial, there is no merit in the contention raised by the Ld. defence counsel.
27. The third contention of the Ld. defence counsel is that the prosecution has failed to discharge its onus of establishing the guilt of accused beyond a reasonable doubt as it has failed to produce the photographs of the spot, during trial. The photographs were a significant piece of evidence which would have enabled the court in appreciating various things including the marks on the road, FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 16 of 21 the position of the dead body and topography of the place where the accident had taken place. The accused deserves to be given benefit of doubt in the absence of this vital evidence.
A perusal of the record shows that PW4 Moolchand has given a detailed description of the sequence of events culminating in the collision. The site plan, Ex. PW9/B prepared by first IO HC Suresh Kumar pinpoints the places where the scooter and dead body of deceased Laxman were found after the accident. Moreover, PW3 Motilal, PW6 Ct. Lokender Singh and PW9 first IO HC Suresh Kumar have also given description of the spot when they reached there after the incident. Therefore, sufficient evidence has come on record for appreciating the situation at the spot, both at the time of accident and immediately thereafter. Moreover, photographs of the spot are only a corroborative piece of evidence and not substantive evidence. Therefore, there is no merit in the contention raised by the Ld. defence counsel.
28. The fourth contention of the Ld. Defence counsel is that no independent public witness was involved during investigation, although as per the admission of PW4 Mool Chand during his crossexamination, many people had gathered at the spot. PW3 Moti Lal and PW4 Mool Chand are both interested witnesses and their testimonies cannot be relied upon.
A perusal of the record shows that PW4 Mool Chand has deposed that many people had gathered at the spot after the accident had already taken place. None of the persons, who had gathered at the spot, had witnessed the accident. Moreover, both PW3 Motilal and PW4 Mool Chand had withstood the stringent test of crossexamination and nothing material has come out during their cross examination which establishes the veracity of their testimonies. Therefore, their testimonies can be safely relied upon. There is no merit in the contention made by FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 17 of 21 the Ld. Defence Counsel.
29. PW2 Daya Ram had deposed that on 29.03.1996, his driver/accused Lakhan told him that an accident had occurred on 28.03.1966 when he was driving half body truck bearing registration no. DEG2439. This amounts to an extra judicial confession made by the accused to his employer Daya Ram. PW2 Daya Ram was not at all cross examined on this aspect and therefore, the accused is deemed to have admitted the veracity of this part of testimony of PW2 Daya Ram. This fact is further fortified by the reply to notice u/s 133 M V Act, Ex. PW2/A given by Daya Ram wherein he has stated that on 28.03.1996, at about 07.30 am, his truck bearing registration no. DEG2439 was driven by the accused Lakhan.
30. In his statement recorded u/s 313 Cr.P.C., the accused has admitted that he had driven truck bearing registration no. DEG2439 on the date of the alleged accident on route on which MCD Dispensary, Fatehpur Beri is situated. However, he denied that the alleged accident had taken place with the truck driven by him. On the other hand, DWs - 1, 2 & 3 have deposed that the accused was working with them as a labourer during the period 20.03.1996 to 10.04.1996. During this period, the police officials came and they picked up accused Lakhan and later he was falsely implicated in the present case. They further deposed that the accused Lakhan later told them that he was falsely implicated in the present case. DW2 has also deposed that when he met the accused Lakhan, he told him that he was not driving the vehicle on the date of the accident. During cross examination, DW2 has further admitted that accused Lakhan had never informed him about any enmity with his employer Daya Ram. The defence set up by the accused in his statement u/s 313 Cr.P.C. is directly contrary to the defence evidence adduced by him which exposes the falsity of his defence.
31. It is observed by the Hon'ble Supreme Court of India in the case of FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 18 of 21 State of Karnataka vs. Muralidhar (2009) 4 Supreme Court Cases 463:
"6. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species."
XXXXX XXXXX XXXXX XXXXX XXXXX "Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 19 of 21 rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused."
"8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted."
In the present case, it has been established that the offending truck bearing registration no. DEG2439 was being driven by the accused Lakhan at a high speed and while so driving, he hit scooter bearing registration no. DL6SA5458 from rear side. Driving a vehicle at a high speed and hitting another vehicle from rear side establishes that the offending truck was being driven by the accused in a rash/negligent manner.
32. Considering the evidence adduced by the prosecution on record, which FIR No. 179/1996 PS: Mehrauli State Vs. Lakhan 20 of 21 is quiet cogent & convincing, the Court holds that the prosecution has successfully discharged the onus of proving that on 28.03.1996, at about 07.30 am, opposite MCD Dispensary, Fatehpur Beri road, New Delhi, within jurisdiction of P.S. Mehrauli, the accused Lakhan was driving truck bearing registration no. DEG2439 in a rash or negligent manner so as to endanger human life and personal safety of others and while so driving, he struck against one scooter bearing registration no. DL6SA5458, make Bajaj Chetak which resulted in causing simple injury on the complainant Mool Chand and death pillion rider Laxman, which did not amount to culpable homicide. Accordingly, accused Lakhan is held guilty for having committed offences punishable u/s 279/337/304 A IPC and is convicted for the said offences.
Announced in the open (Sandeep Garg)
Court on 03.07.2013 MM(South)07,
Saket/New Delhi.
FIR No. 179/1996 PS: Mehrauli
State Vs. Lakhan 21 of 21