Delhi District Court
In Re: State vs Rajiv Chopra on 14 September, 2011
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE
SOUTH DISTRICT: SAKET COURTS: NEW DELHI
In Re: STATE VERSUS RAJIV CHOPRA
F.I.R. No: 687/97
U/s 279/304 A IPC
P.S. Defence Colony
Date of Institution of Case : 08.09.1997
Judgment Reserved for : 12.09.2011
Date of Judgment : 14.09.2011
JUDGMENT:
(a) The serial no. of the case : 106/02/97
(b) The date of commission of offence : 10.07.1997
The name of complainant : Vikram Bhandari S/o
Sh. Gabbar Chand
Bhandari, R/o H. No. 30,
Gali no.1, Mitha pur,
Delhi.
(d) The name, parentage, of accused : Rajiv Chopra S/o Sh.
Kuldeep Lal Chopra, R/o
D205, Defence Colony,
FIR No. 687/97 1/31
New Delhi.
Present Address : As above.
(e) The offence complained of : U/s 279/304 A IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Convicted
(h) The date of such order : 14.09.2011
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 10.07.1997 at about 9.00 am near House No. D209, Defence colony, New Delhi, within the jurisdiction of police station Defence Colony, accused Rajiv Chopra was found driving an Ambassador car no. WMD8161 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving so he struck against cyclist Anand which resulted in serious injuries upon him and subsequently he succumbed to the injuries and thus thereby the accused committed offence punishable u/s 279/304 A IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C. documents were supplied to the accused. Thereafter vide order FIR No. 687/97 2/31 dated 03.12.1998, notice u/s 279/304 A IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined ten witnesses. After the PE was closed, statement of the accused was recorded u/s 313 Cr.P.C. wherein he claimed himself to be innocent and having been falsely implicated in the case. He also examined one witness i.e. Ms. Glory Chopra (his mother) as DW1. A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 Vikram Bhandari deposed that about 6/7 years ago, he along with his friend Anand were staying in Kotla Mubarakpur and both of them were doing the job in Big Josh B2, NDSEII and were doing the job there at the counter for about 4/5 years prior to the incident. He further deposed that he and his friend Anand were going to Defence colony at the house No. D405 of their owner on their separate bicycles. He further deposed that at about 9.00 am they reached near the nala of defence colony, he was ahead of Anand, who was following him on his own cycle. At that time one ambassador car no. WM8161 of red colour came from the front side FIR No. 687/97 3/31 in a fast speed, he somehow escaped the car, but the car struck against the cycle of his friend Anand. Anand fell down on the road along with bicycle and the car driver stopped his car at some distance and came to them. The accused (correctly identified) was driving the said ambassador car. He further deposed that they took Anand to Mool Chand Hospital. He further deposed that the accused asked him in the hospital that he will come after two minutes and thereafter he never turned up. He further deposed that he informed in his company. He further deposed that Anand sustained head injuries and the injuries on leg. He further deposed that police came in the hospital and recorded his statement i.e. Ex. PW1/A. He further deposed that after two days, Anand died. He further deposed that he had shown the spot of accident to the police where police prepared the site plan Ex. PW1/B and recorded his statement to this effect.
During his cross examination he stated that the name of the deceased was Anand. He stated that on the day of accident he along with deceased was going on their separate bicycles together to Defence Colony for some urgent work i.e. to deliver some item to their boss. He further stated that there was no vehicle near the spot at the time of accident. He denied the suggestion that there were vehicles parked on both sides of the FIR No. 687/97 4/31 road as it was the official time. He stated that there was also no hawker at the site of accident. He denied the suggestion that he was deposing falsely in this regard. He further denied the suggestion that he and the deceased were making the race. He stated that after the accident the driver of the offending vehicle stopped the vehicle at the distance of about 20 yards and thereafter he returned back at the spot and took them to the hospital and after leaving them in the hospital he left the hospital. He stated that he does not know whether the driver of the offending vehicle had paid the medical bills of the expenses incurred upon the treatment of the deceased. He denied the suggestion that he was deposing falsely. He denied the suggestion that the spot of accident is densely populated. He denied the suggestion that the accident could not take place at the spot due to rash and negligent driving of offending vehicle.
5. PW 2 Vaswa Nand deposed that on 13.07.1997 he had identified the dead body of his elder brother Anand Vallabh in the mortuary of AIIMS hospital. He deposed that his brother had met with an accident on 10.07.1997 and died in Mool Chand hospital. He further deposed that the IO recorded his identification statement i.e. Ex. PW2/A. FIR No. 687/97 5/31 During his cross examination he stated that he was not present at the time of accident. He further stated that he worked in Hero Cycle Factory in Sahibabad. He further stated that he knows Vikram Bhandari who belonged to his native village.
6. PW 3 Head Constable Neeru deposed that on 10.07.1997 she was posted as DO at PS Defence Colony and on that day on receipt of rukka through Ct. Ram Ashish she recorded the FIR vide Ex. PW3/A. She further deposed that after registration of the case she handed over the copy of FIR and rukka to Ct. Ram Ashish. She further deposed that the investigation of the case was handed over to HC Baboo Din.
During her cross examination she stated that she does not remember the name of the then SHO PS Defence colony nor she can tell whether the SHO was present in PS at that time. She further stated that she does not remember as to whether she met the SHO before assigning the investigation to Baboo Din or that she had brought this fact to the notice of SHO.
7. PW 4 HC Raj Bir Singh deposed that on 13.07.1997 he was posted FIR No. 687/97 6/31 as Head Constable at PS Defence Colony and on that day he was deputed for looking after the dead body of the deceased Anand S/o Mukand Ram in the mortuary of AIIMS hospital where the IO after filling the documents got the Autopsy conducted on the dead body and handed over the dead body to the legal heir of the deceased and recorded his statement to this effect.
8. PW 5 Head Constable Kishan Lal deposed that on 12.07.1997 he was posted at PS Defence Colony and on that day he accompanied the IO HC B.D. Khan to Mool Chand hospital where the injured Anand died due to the accident which occurred on 10.07.1997. He further deposed that they took the dead body to mortuary AIIMS hospital where it was preserved for 72 hours. He further deposed that on the next day i.e. 13.07.1997 the postmortem was conducted and the dead body was handed over to the legal heirs of the deceased. He further deposed that thereafter they came to the police station. He deposed that he was sitting in the IO room of B.D. Khan where the accused Rajeev Chopra came along with offending car and produced the said car to the IO which was seized vide seizure memo Ex. PW5/A. He further deposed that accused Rajeev Chopra was arrested and his personal search was conducted vide memo Ex. PW5/B and IO also seized the D/L of the accused vide memo Ex. PW5/C and recorded FIR No. 687/97 7/31 his statement to this effect.
During his cross examination he stated that on that day he was on emergency duty and accompanied the IO. He stated that he did not witness the accident. He denied the suggestion that the IO has tutored him. He stated that he cannot tell the particulars of the case in which he accompanied the IO B.D. Khan in addition to this case. He denied the suggestion that he was deposing falsely at the instance of the IO. He stated that the IO did not record any departure or arrival entry in the DD register at the police station.
9. PW 6 Retired SI Nand Lal Dua deposed that on 13.07.1997 he conducted the mechanical inspection of the Ambassador car no. WMD8161 at the request of the IO . His detailed report is Ex. PW6/A in this regard.
10. PW 7 Dr. Sanjeev Lalwani deposed that on 13.07.1997 the postmortem on the body of the deceased Anand was conducted by Dr. Alpna Sinha vide PM report no.744/74 i.e. Ex. PW7/A. He further deposed that Dr. Alpna Sinha has left the hospital and her present whereabouts are FIR No. 687/97 8/31 not known. He further deposed that the the cause of death in this case was comma due to head injuries due to blunt force impact seen in the RTA.
11. PW 8 DHG Ct. Ramasheesh deposed that on 10.07.1997 he was posted as DHG Constable at PS Defence Colony and on that day after receiving the DD no.25B regarding accident he along with the IO reached at Moolchand hospital where one Vikram Bhandari and Anand were found admitted in the hospital. He further deposed that the statement of the Vikram Bhandari was recorded by the IO and he prepared the rukka. He further deposed that he went to the PS Defence Colony along with rukka and case was registered. He further deposed that thereafter, he returned back at the Moolchand hospital. He further deposed that the copy of FIR and rukka was handed over to the IO.
12. PW 9 IO/SI Babudinn Khan deposed that on 10.07.1997 he was posted as Head Constable PS Defence colony and on that day on receipt of DD no.25B he along with DHG Ct. Ramashish went to Mool Chand hospital where the injured Anand was found admitted and he was declared unfit for statement vide his application Ex. PW9/A. He further deposed that eye witness Vikram Bhandari joined the investigation and his statement FIR No. 687/97 9/31 Ex. PW1/A was reduced in writing. He further deposed that he got registered the case FIR No. 687/97 vide his endorsement Ex .PW9/B and also prepared the site plan Ex. PW1/B. The copy of DD no.25B is Ex. PW9/C. He further deposed that he seized the cycle vide seizure memo Ex. PW9/D. He further deposed that the injured died due to the injuries and postmortem was got conducted and dead body was handed over to the relatives of the deceased. He further deposed that the accused (correctly identified) was arrested as he (accused) surrendered himself before the court with Ambassador car. He further deposed that D/L of the accused was seized vide seizure memo Ex. PW5/C. He further deposed that vide notice u/s 133 MV Act ie. Ex. PW9/E, owner Jai karan Singh submitted his reply as Ex. PW9/F. He further deposed that the mechanical inspection of the car was conducted and he collected the report in this regard. He further deposed that he also collected the PM report and recorded the statement of PWs and filed the charge sheet.
During his cross examination he stated that he received the DD no. 25B at about 11.55 am . He further stated that he reached at Mool Chand hospital within 10/15 minutes where he met with Mr. Vikram Bhandari who was known to Anand/deceased. He further stated that he recorded his FIR No. 687/97 10/31 statement and on the basis of the same rukka was prepared and same was sent to PS for registration of FIR on 10.07.1997 itself. He denied the suggestion that Vikram Bhandari was planted by him in the present case. He stated that he seized the cycle of the injured at the spot. He admitted that the cycle was not got mechanically inspected. He voluntarily stated that he merely got the car mechanically inspected. He further stated that the accused hit the deceased's cycle from behind. He further stated that numerous public persons were present at the spot but he did not record their statements nor joined them in the investigation as they left the place without disclosing their names and addresses showing their genuine inability. He stated that the rukka was endorsed in the hospital and DO registered the FIR. He further stated that after the accident, injured Anand was unfit for statement. He further stated that his injuries were reflected in the MLC. He denied the suggestion that injured Anand lost control of his cycle and himself fell down on the road and received injuries. He denied the suggestion that he had not prepared site plan and was deposing falsely.
13. PW 10 Dr. Gufranddin deposed that he had been working in the Mool Chand hospital for the last one year. He deposed that on 10.07.1997 FIR No. 687/97 11/31 injured Anand had been brought to their hospital and the Duty Doctor examined the injured and gave his report vide MLC No. 2945 i.e. Ex. PW10/A. He deposed that he has no personal knowledge about the present case and is deposing on the basis of the records.
During his cross examination he stated that he does not know the name of the doctor who was on Duty on 10.07.1997.
14. DW 1 Ms. Glory Chopra deposed that she was deposing on behalf of his son who is an accused in this case. She deposed that she does not remember the date of accident however on the day of accident, she was standing outside her house buying some vegetables. She further deposed that her son was parking his car just two houses adjacent to their house. Some quarrel was going on there. She further deposed that her son went to find out the reasons for the quarrel and after sometime he came to her and said that somebody was injured and he was taking him to hospital. She further deposed that he took the injured to hospital. She further deposed that after two days police came to their house and asked about her son. She further deposed that thereafter, she came to know that he has been implicated in this case. She further deposed that no accident FIR No. 687/97 12/31 was caused by her son. She further deposed that he has been falsely implicated in this case.
During her cross examination she stated that the incident occurred at about 9.30 in the morning. She further stated that she does not remember the registration number of the car but it was an ambassador car of Maroon colour. She further stated that she is very well aware about the meaning of accident and quarrel and the difference between them. She further stated that accident occurs when you hit someone. She denied the suggestion that she was deposing falsely to save her son. She further denied the suggestion that on the day of incident, her son had caused the accident. She stated that she did not see any bicycle at the spot. She voluntarily stated that she had not seen anything.
15. I have heard the arguments advanced at bar by the learned Defence counsel as also learned APP, have carefully gone through the evidence recorded in the matter and carefully perused the documents placed on record by the prosecution in this case.
FIR No. 687/97 13/31
16. In order to prove its case and establish the guilt of the accused the prosecution has to prove that the accident was caused by accused Rajiv Chopra while driving Ambassador car bearing registration no. WMD8161 in a rash and negligent manner who while driving so hit cyclist Anand which resulted in his death.
17. After going through the material on record and giving my thoughtful considerations to the arguments advanced at bar, I am of the considered opinion that the prosecution has successfully brought home the guilt against the accused.
18. It stands proved/established from the deposition/testimony of eye witness Vikram Bhandari who was examined as PW1 and whose deposi tion was duly corroborated by the other prosecution witnesses that it was the rash and negligent driving of accused Rajiv Chopra which resulted in the death of cyclist Anand.
19. PW 1 Vikram Bhandari who is the eye witness of the accident proved that on the day of accident he was going towards his owner's house along with his friend Anand (deceased) on their respective cycles. FIR No. 687/97 14/31 At around 9.00 am when they reached at near Ganda Nala, he was riding his cycle ahead of Anand, the accused came driving the Ambassador car in question at a very fast speed from the front side. Though, he managed to escape the collision, the car of the accused went on to hit Anand's cycle. As a result, Anand fell down and received injuries on his head and legs. He proved that he along with the accused took Anand to Mool Chand hospital and got him admitted there. Thereafter, the accused went away and when the police came to the hospital they recorded his statement as Ex .PW1/A and he also pointed out the place of accident to the police who prepared site plan Ex. PW1/B at his instance.
20. This witness thus elaborately narrated the circumstances in which the accident occurred and duly identified the accused as the driver of the offending Ambassador car.
21. Deposition of this witness was duly corroborated by the other prose cution witnesses.
22. DHG Ct. Ramasheesh who was examined as PW 8 proved that on 10.07.1997 on receiving DD no.25 B he along with IO reached at Mool FIR No. 687/97 15/31 Chand hospital where deceased Anand and Vikram Bhandari (PW1) were found admitted in the hospital and IO recorded the statement of Vikram Bhandari and prepared the rukka. he proved that he took the rukka to the PS and got the FIR registered. Testimony of this witness remained unchal lenged/unrebutted despite opportunity.
23. The FIR was proved by PW3 HC Neeru as Ex. PW3/A who corrobo rated the stand of DHG Ct. Ramasheesh that he had taken the rukka to PS Defence Colony.
24. The mechanical inspection report of the car in question was proved by SI Nand Lal Dua as Ex. PW6/A.
25. Further credence to the prosecution story was lend by IO SI B.D. Khan (PW 9) who proved that on receiving information regarding the acci dent vide DD No. 25B, he along with DHG Ct. Ramsheesh reached at Mool Chand hospital where they found Anand (deceased) admitted in the hospital but he was unfit for statement. He proved that he also met eye wit ness Vikram Bhandari and recorded his statement as Ex. PW1/A, prepared the ruqqa and sent it to PS through DHG Ct. Ramasheesh and got the FIR No. 687/97 16/31 present case FIR registered. He further proved that the arrest of the ac cused and the seizure of the D/L of the accused. The arrest of the accused and the seizure of the offending Ambassador car along with the D/L of the accused was also proved by PW5 HC Kishan Lal vide documents Ex. PW5/A to C.
26. The nature of injuries as sustained by Anand were proved by Dr. Gu faranuddin (PW 10) who proved the MLC No.2945 of Anand as Ex. PW10/A. The cause of death of Anand was proved by Dr. Sanjeev Lalwani who proved the PM report of deceased Anand bearing no. 744/97 as Ex.P W5/A. All these medical documents make it crystal clear that the cause of death was due to head injury caused by blunt force impact in a road traffic accident.
27. Hence, it stands duly established/proved that on 10.07.1997 ac cused Rajiv Chopra was driving the offending Ambassador car at the time of accident and that he while driving his car he hit against the cyclist Anand which resulted in his death.
FIR No. 687/97 17/31
28. During the course of the arguments, Ld. Defence Counsel vehe mently argued that the prosecution story suffers from various loopholes/contradictions and the prosecution has miserably failed to bring home the guilt against the accused. It was one of the arguments of the Ld. Defence Counsel that PW1 Vikram Bhandari was not an eye witness and was in fact an interested/planted witness. It was argued that he was plant ed as an eye witness because he belonged to the same native village as the deceased. The fact that he was a planted witness stands proved from the fact that though he claimed that he accompanied the deceased to the hospital but his name does not appear in any of the medical documents i.e. MLCs etc. which itself suggest that he was never present at the spot nor at the hospital.
29. However, I do not agree with the contentions of the Ld. Defence Counsel.
30. After going through the material on records especially the deposition of Vikram Bhandari (PW1), I have no doubts that he was an eye witness of the accident and that it was accused Rajiv Chopra whose rash and negli gent driving was responsible for the accident and subsequent death of FIR No. 687/97 18/31 Anand. In my opinion, testimony of eye witness Vikram Bhandari is itself sufficient to bring home the guilt against the accused. As already dis cussed above PW1 Vikram Bhandari elaborately narrated the circum stances in which the accident occurred. He proved that the accident oc curred in his presence and that the accused was driving the Ambassador car at a fast speed and while driving so he hit the cycle of the deceased Anand. From his examination in chief as well as from the cross examina tion it is amply clear that it was accused Rajiv Chopra who was sitting on the steering wheel of the ambassador car in question.
31. I find no force in the contentions of the Ld. Defence Counsel that he was a planted witness. I find no reasons why Vikram Bhandari would de pose falsely against him/would try to falsely implicate him. I find no reasons to disbelieve him. There is nothing on record to suggest that he was known to the accused or that they were inimical to each other. Though, the de fence plea was that eye witness Vikram Bhandari was known to the de ceased/his family as they belonged to the same village however, merely because deceased Anand and eye witness Vikram belonged to the same village that by itself does not mean that he was a planted or interested wit ness.
FIR No. 687/97 19/31
32. Presence of PW1 Vikram Bhandari at the spot was natural. PW1 de posed that he and the deceased were working at Big Jos at B2, NDSEII since 45 years prior to the incident. He further deposed that they were going to their owner's house at D405, Defence Colony when the accident occurred. As per records, the accident occurred at in front of H. No. D209, Defence Colony. Hence, Vikram Bhandari fairly explained the reasons for his presence at the spot of accident on the day of accident. The defence could not impeach the credit of this witness despite grilling cross examina tion. It was not the defence case either during the cross examination or at the time of arguments that the eye witness did not work with the deceased at Big Jos or that their employer/owner did not reside at D405, Defence Colony. The defence could not proved that the accused was not present at the spot and was in fact present at some other place at the time of acci dent.
33. Deposition of eye witness Vikram Bhandai was duly corroborated by other prosecution witnesses and it stands established from the deposition of DHG Ct. Ramasheesh (PW8) and IO SI B.D. Khan Prasadi Lal (PW 9) that Vikram Bhandari was indeed an eye witness of the accident. Both of them categorically deposed that when they reached at Mool Chand hospi FIR No. 687/97 20/31 tal Vikram Bhandari was also present there along with injured/deceased Anand. It should not be lost sight of the fact that it was on the basis of the statement of Vikram Bhandari i.e. Ex. PW1/A that the rukka Ex. PW9/B was prepared and the FIR was registered at PS Defence Colony. Here I would also like to add that the incident occurred in the year 1997 and at that time the facilities for communication were not that easily/readily avail able as they are today. The mobile phones were not that common and in fact they were quite unaffordable and at least they were highly unafford able to the economic strata of the society to which the deceased and the eye witness belong. Even the facilities of STD and PCO was not that com mon. The incident occurred at around 9.00 in the morning. The rukka as is evident from Ex.PW9/B (rukka) was sent at 12.00 Noon. I am not inclined to believe and it is humanly impossible that within the short span of 3 hours the IO/Vikram Bhandari could manage all this that is to say that information of accident is sent to Vikram Bhandari either at his residence or work place (because it is the defence plea that he was not present at the spot), he comes to Mool Chand hospital makes up a story i.e. his statement Ex. PW1/A in collusion with the IO and falsely implicates the accused. This all seems highly improbable and is in fact a farce defence claim. FIR No. 687/97 21/31
The time of admission of Anand at Moolchand hospital (9.30 am), time of sending of rukka (12.00 noon) and the registration of FIR at 1.00 pm which is based upon the statement of PW 1 Vikram Bhandai i.e. Ex.P W1/A & PW9/B (rukka) proves that there was no delay or time for manipu lation for planting of Vikram Bhandari as an eye witness.
34. The arguments that if in deed Vikram Bhandari had accompanied Anand to the hospital on the day of accident then his name ought to have been there in the medical records i.e. MLCs etc., but the fact that Vikram's name does not appear in any of the documents itself shows that he was not present either at the spot or at the hospital also finds no force. I have already discussed above that there are no doubts that Vikram was an eye witness. Just because his name does not appear in the relevant column of MLC or any other medical documents that by itself does not mean that he was not present at the hospital. First of all, in my opinion there was no ne cessity whatsoever for Vikram's name to appear in the MLC or any other document. It is not disputed and in fact also stands proved from the an swers given by accused during his examination u/s 313 Cr.P.C. that ac cused Rajiv Chopra had taken injured Anand to hospital. In the MLC in the column "name of relative or friend" Rajiv's name appears therein. Not FIR No. 687/97 22/31 only this proves that Rajiv had accompanied the injured/deceased Anand to hospital but then at the same time from the medical records as well as the deposition of the witnesses on record and the kind of injuries received by Anand it stands automatically proved that PW1 Vikram Bhandari was in deed accompanying Anand. In the accident Anand had received serious head injuries apart from various bodily injuries. As reflected in the MLC he was unconscious, doctors had declared him unfit for statement and as a matter of fact he had to be immediately operated upon. In these circum stances, there must have been some person present at the hospital who must have informed the doctor on duty regarding the particulars i.e. ad dress etc. of injured Anand as appearing in the MLC. Anand was not known to the accused earlier and hence, it must have been Vikram Bhan dari (PW1) who must have given the particulars of Anand as appearing in the MLC. Also it is reflected in the MLC that "h/o head injury following al legedly hit by a car today at 9.30 am". Anand was severely injured, unfit for statement as well as unconscious. If accused is to be believed neither did he hit Anand's cycle nor did he witness the accident and he merely took Anand to hospital so as to save his life, thus acting as a responsible citizen. Then, in such scenario who was the person who told the docotor on duty as to how Anand received the injuries. Answer is it was no one FIR No. 687/97 23/31 else but Vikram Bhandari (PW 1) who had accompanied the injured to hos pital. All this goes on to prove that Vikram was in deed an eye witness of the accident as is also proved from the other material on record.
I would also like to add that if indeed accused Rajiv Chopra had not caused the accident and he had tried to save the life of Anand then I am not inclined to believe that the IO or the eye witness or for that matter any body would falsely implicate a responsible citizen like him. The society is not that degraded morally. Hence, I am not inclined to believe the testimo ny of DW 1 or the claim of innocence of the accused.
35. Regarding the nonjoining of independent public witnesses by the IO despite availability suffice would be to say that no doubt, no public per son was joined by the IO at the spot however, in my opinion there was no requirement of the same and absence of any public person has not affect ed the prosecution story in any manner. As discussed above, the deposi tion/testimony of eye witness Vikram Bhandari is itself sufficient to bring home the guilt against the accused. The public persons are generally re luctant to come forward to depose before the Court. It is, therefore, not cor rect to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the FIR No. 687/97 24/31 case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. Civilized people withdraw both from the victim and the vigilante and they keep them selves away from the Court unless it is inevitable.
36. The Indian Evidence Act does not specify any particular number of witnesses required to prove a fact and a fact can be proved even by one witness whether he is official or independent public witness depending upon the facts and circumstances of the case. Law requires that evidence has to be weighed and not counted. The Evidence Act does not lay down about any specific number of witnesses needed for proving a particular fact.(Ambika Prasad and Ano. Vs State 2002 (2) CRIMES 63 (SC) ,Chit tar Lal v. State of Rajasthan, (SC) 2003 Cri.L.J. 3548, Mohamad Gugal Esa Mamasan Ger Alalah v. The King, AIR 1946 PC 3, Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 , Guli Chand and others v.
State of Rajasthan, AIR 1974 SC 276, Vahula Bhushan @ Vehuna Kr ishnan v. State of Tamil Nadu, AIR 1989 SC 236, Jagdish Prasad and others v. State of M.P., AIR 1994 SC 1251, and Kartik Malhar v. State of Bihar, 1996(1) RCR(Crl.) 308 (SC) : 1996(1) SCC 614, Namdeo v.
FIR No. 687/97 25/31 State of Maharashtra, (SC) 2007(2) R.C.R.(Criminal) 893 and Shivaji Sahebrao Bobade v. State of Maharashtra, (1973)2 SCC 793.
37. One more contention of the Ld. Defence Counsel was based upon the mechanical inspection report. It was argued that as per the mechanical inspection report PW6/A, the Ambassador car in question did not receive any damage on its front side and hence, this negates the prosecution claim that the said car was not involved in the accident because if in deed the car had hit from the front side on the cycle of injured/deceased Anand then the car ought to have received some damage. This contention is devoid of merits. When a big vehicle like an Ambassador car hits against a bicycle it is not necessary that damages are caused on the car. There are instances where even a scratch does not occur on the vehicle when it is hit by or it hits a comparatively smaller vehicle. I fail to understand what kind of dam ages would occur on an Ambassador car which weighs around a Ton when it hits a bicycle on its front side i.e. on the tyres and the cycle merely weighs a few Kilograms i.e. may be around 1520 kilograms. Similarly the fact that the mechanical inspection of the bicycle was not got done by the IO does not effect the prosecution story. Mechanical inspection is usually carried of a motor vehicle i.e. a vehicle which is propelled by a motor FIR No. 687/97 26/31 wherein many electrical/technical parts are involved for a proper working of the car and failure of certain technical/electrical parts for example steering column, brakes, gear box etc can lead to major accidents. Mechanical in spection is conducted to find out whether it was the human rashness/negli gence while driving which led to the accident or accident occurred on ac count of certain technical/mechanical defect. The Ambassador car in ques tion did not suffer from any such defect. And there was no reason/occasion for a bicycle to suffer from the same.
38. It was also one of the contentions of the Ld. Defence Counsel that the prosecution miserably failed to prove the essential ingredients of Sec tion 279/304 A IPC. It was argued that even from the deposition of eye witness Vikram Bhandari it could not be established that the vehicle/car was driven in a rash/negligent manner. It was argued that eye witness Vikram Bhandari merely stated that the vehicle was driven at a fast speed. The law is well settled that mere high speed is not a factor sufficient to es tablish rashness/negligence. Reliance was placed upon the law laid down in State of Karnataka Vs. Satish 1999 (1) JCC (SC) 97 and Bal Kishan Vs. State 2008 (4) JCC 2453. It was argued that the eye witness did not state that the vehicle was driven in a rash/negligent manner and apart from FIR No. 687/97 27/31 his deposition there is no material on record to hold that the accused was driving the car at the time of accident in a rash/negligent manner.
39. However, I do not agree with the submissions of Ld. Defence Coun sel.
40. Regarding rash and negligent driving it is to be seen that what is rash/negligence varies from case to case and there cannot be any fixed parameters for judging rashness/negligence. At the same time, there can not be any assumption/presumption of the same. 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 conse quences. Criminal negligence on the other hand is the gross and culpable or proper case and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the cir cumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. (Niranjan Singh v. State (Delhi Administration), (Delhi) 1996(1) R.C.R.(Criminal) 320. FIR No. 687/97 28/31
41. Meaning of expression negligent act and rashness came up for discussion in the case titled as Prabhakaran v. State of Kerala, (SC) 2007(3) R.C.R.(Criminal) 605 and the Hon'ble Apex Court Held : (1) A negligent act is an act done without doing something which a reason able 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 negli gent act done precipitately.
(2) 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.
(3) Criminal 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.
42. In the case at hand the eye witness PW1 (Vikram Bhandari) elabo rately narrated the circumstances in which the accident occurred. The rele vant portion is reproduced here under: FIR No. 687/97 29/31 "........ I was ahead of Anand and he was following me at his own cycle. At that time one Ambassdor car no.WM8161 of red colour came from the front side in the fast speed and I some how escape the car but the car struck against the cycle of my friend Anand".
43. This statement of the eye witness clubbed with site plan Ex. PW1/B leaves no doubt that it was the rash and negligent driving of the accused which led to the accident. The accident occurred at around 9.00 am i.e. in broad day light. The accused while driving the Ambassador car goes on to hit a cyclist head on. He is driving at a fast speed as stated by PW1. It is beyond my contemplation that how could the accused while driving his car not notice the injured/deceased coming from the front side. Hitting a cyclist head on is nothing but rashness/negligence writ large. The impact was such that Anand received severe head injuries and he had to be immedi ately operated upon.
44. Though it was argued by the Ld. Defence Counsel that as PW 1 Vikram Bhandari claimed that he was ahead of Anand when the accident occurred that means he could not have seen the accident i.e. how the car hit the cycle and hence, his testimony cannot be relied upon to adjudge FIR No. 687/97 30/31 rash and negligent driving. However, I do not agree with the Ld. Defence Counsel. PW 1 Vikram Bhandari categorically stated that he somehow avoided the collision with the car of the accused which came from the front at a fast speed. His friend/colleague was following him on his bicycle. It was his natural reaction that after he saved himself/avoided the collision he looked back just to check whether his friend/colleague i.e. Anand could also avoid the ambassador car of the accused or not. But as the case was Anand could not and his bicycle was hit by the speeding car of the ac cused.
45. In view of my above discussion, the accused is held guilty and con victed u/s 279/304A IPC in the present case.
46. A copy of this judgment be supplied to the accused free of cost and the matter be now listed for arguments on the point of sentence.
Announced in the open (Gaurav Rao) on 14.09.2011 MM (SD)/Delhi. FIR No. 687/97 31/31 14.09.2011 F.I.R. No: 687/97 U/s 279/304 A IPC P.S. Defence Colony Pr: Ld. APP for state. Accused is present on bail along with his counsel.
Vide my separate judgment announced today in the open court, accused has been convicted of the charges in the present case.
Let he be now heard on the point of sentence on 17.09.2011.
(Gaurav Rao) MM (SD)/Delhi 14.09.2011 FIR No. 687/97 32/31