Delhi District Court
Kishan Lal vs . State on 28 November, 2014
Kishan Lal vs. State
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 (CENTRAL): DELHI
CA No. 41/2012
ID No. 02401R0278232012
KISHAN LAL
S/o Mange Ram
R/o E-281, West Karawal Nagar,
Delhi.
.............Appellant
versus
State
..........Respondent
Date of Institution : 08.06.2012
Date of judgment : 28.11.2014
Present: Sh. Kapil Jain, Advocate, counsel for the appellant.
Sh. R.K.Tanwar, Additional Public Prosecutor for State
J U D G M E N T :-
1. This criminal appeal has been filed against the impugned judgment dated May 8, 2012 passed by the Court of learned Chief Metropolitan Magistrate, Delhi whereby appellant had been held guilty for the offence punishable under Section 279/338 IPC and against the order on the point of sentence dated May 10, 2012 whereby the appellant had been sentenced simple imprisonment for a period of six months and a fine of ` 500/- in default further simple imprisonment for a period of one month for the offence punishable under Section 279 IPC and appellant was also CA No. 41/2012 Page No. 1 of 14 Kishan Lal vs. State sentenced rigorous imprisonment for a period of nine months and a fine of `1000/- in default further simple imprisonment for a period of 1½ months for the offence punishable under Section 338 IPC. In addition to the above, appellant was also directed to pay compensation of ` 50,000/- to the family of injured and in default of payment of compensation, he was directed to undergo further simple imprisonment for a period of two months. Benefit of Section 428 Cr.P.C was also given.
2. Necessary facts in brief leading to filing the present criminal appeal are that on March 4, 1999 at about 03.05 PM an intimation was received at police station DBG Road from police control room that an accident had taken place at Karol Bagh bus terminal. Accordingly, ASI Sushila Yadav (PW8) and const. Om Parkash (PW1) were deputed to the spot. On reaching the spot, it was revealed that an accident had taken place between bus bearing registration No. DL1P-8871 and car bearing registration No. DNB2279. It was also revealed that the injured had been taken to Jassa Ram hospital, accordingly investigating officer reached the hospital where injured Manmohan Bedi (PW5) was found admitted. PW5 got recorded his statement (Ex. PW5/A) to the investigating officer alleging that on March 4, 1999, he was going to Karol Bagh via DBG Road in his maruti car bearing registration No. DNB 2279 and when at about 2.40 PM he reached near Pump House, Karol Bagh bus terminal, he saw that one bus was stationed towards his left side. It was alleged that the driver of the bus i.e. appellant had started his bus without giving any indication and turned his bus towards right side at very high speed, consequently, he applied brake in his car but could not stop the car. Accordingly, the car rammed in the rear portion of the bus. As per the charge-sheet, he had sustained grievous injury.
CA No. 41/2012 Page No. 2 of 143. After appreciating the evidence led by both the parties, learned Trial Court held the appellant guilty and sentenced him as stated above vide impugned judgment and order on the point of sentence. Aggrieved by his conviction and sentence, appellant filed the present criminal appeal.
4. Learned counsel appearing for the appellant sagaciously contended that though prosecution had examined as many as eight witnesses, yet, prosecution case is based on the sole testimony of PW5 Manmohan Bedi who had sustained injury in the alleged incident. It was contended that though appellant was driver of the said bus, yet he was not driving the bus at the time of accident and the bus was stationed at the Pump House Karol Bagh and this fact is admitted by PW5 in his examination-in-chief. It was further contended that since the bus was stationary, no passenger was travelling in the bus and due to that reason, investigating officer had neither examined any bus passenger nor the bus conductor. It was further contended that the injured was coming from behind at high speed and when his car reached near the bus, he was hit by a Tata 407 Tampo from behind, consequently, his car was rammed into the stationary bus. It was urged that there was no rashness or negligence on the part of appellant in any manner. Further, there is no evidence on record to show that the appellant was driving the said bus in rash or negligent manner. It was submitted that mere fact an accident had taken place and PW5 had sustained injury is not sufficient to arrive at a conclusion that the appellant was rash or negligent in driving the vehicle.
5. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing sagaciously that since PW5 had sustained injury, there is no reason to disbelieve his testimony. It was further CA No. 41/2012 Page No. 3 of 14 Kishan Lal vs. State contended that brother of PW5 was also standing at the bus terminal, Karol Bagh and he had also witnessed the incident. Thus, prosecution has succeeded to prove that it was the appellant who was driving the bus at the time of accident. It was further contended that since the appellant had turned the bus towards right side all of sudden at high speed without giving any indication, appellant had acted rashly and negligently. It was submitted that it was the duty of the appellant to use indicator before changing the lane and he should not have taken the turn at high speed without seeing whether any vehicle was coming behind or not.
6. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
7. Before dealing with the contention raised by counsel for both the parties, I deem it appropriate to refer the judgment Nageshwar Shri Krishna Ghobe vs. State of Maharashtra, AIR 1973 SC 165. In the said case a double decker bus mounted on the pavement and dashed against an electric pole and caused the death of a person who was standing there. Another person also sustained injury in the said incident. While acquitting the appellant, Hon`ble Apex Court held in para No. 6 as under:-
In case of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally CA No. 41/2012 Page No. 4 of 14 Kishan Lal vs. State be busy in their own pre-occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom-and it is only a matter of coincidence-that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describes the sequences of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those person may feel disinclined to take any further interests in the matter, whatever be the reason for this disinclination. If, however, they do feel interested in going to the spot in their curiosity to know some thing more, then what they may happen to see there, would lead them to form some opinion or impression as to what in all likelihood must have led to the accident. Evidence of such persons, therefore, requires close scrutiny for finding out what they actually saw and what may be the result of their imaginative inference. Apart from the eye-witnesses, the only person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like the present is the driver himself or in certain circumstances to some extent the person who is injured.
(emphasis supplied) CA No. 41/2012 Page No. 5 of 14 Kishan Lal vs. State
8. Apex Court also expressed its anguish over the manner in which the investigation was conducted by the investigating officer in the following words:-
We cannot help expressing our surprise and regret at the manner in which the investigation has been conducted. The investigating officer unfortunately did not care to have the photographs taken of the position of the vehicle, the electric pole and the persons injured and dead as a result of the accident. He did not care even to take the measurement of the height of the kerb, which in our view, was a very relevant factor. Nor did he care to get the vehicle examined by a mechanic for the purpose of ascertaining if its mechanism was in order and particularly if its brakes were working properly. The rough sketch prepared by him is a highly unsatisfactory document as it only gives us an extremely rough idea of the position this is of little assistance in determining the question of the appellant's guilt in the criminal trial.
(emphasis supplied)
9. Similarly, in case Abdul Subhar vs. State of NCT of Delhi 133 2006 DLT 562 while acquitting the accused for the offence punishable under Section 279/304A IPC, Hon`ble Court passed the following directions to the investigating agency:-
13.1. In most cases I find that the site plans are not produced. Even the site plan that is produced is of a very unsatisfactory nature. It is, therefore, imperative that the investigating officer should be provided with maps of the roads drawn to scale so that accurate site plans can be produced in evidence for the CA No. 41/2012 Page No. 6 of 14 Kishan Lal vs. State appreciation of Courts. The exact point of impact as well as tyre skid marks and the point at which the vehicles come to rest after the collision should be demarcated clearly. The observations with regard to the length of the tyre skid marks of the vehicles involved in the impact go a long way in indicating the speeds at which the vehicles were travelling. This would enable the Courts to examine the evidence in a much more objective manner and the Courts would not be faced with vague and subjective expressions such as "high speed".
13.2. The mechanical inspection reports that are prepared are also, I find, in a majority of cases, of a very superficial and cursory nature. The inspection ought to be carried out by qualified personnel who are able to indicate in their reports the exact physical conditions of the vehicles. They should be able to point out with exactitude the damage suffered by the vehicles as a result of the impact. The mechanical inspection report should indicate all the tell-tale signs of the collision such as the paint of one vehicle rubbing off on the other. It should also indicate as to whether the vehicles were mechanically sound or not prior to the impact so as to enable the Court to arrive at a conclusion as to whether the collision took place due to human rashness or negligence or mechanical failure beyond human control.
13.3. As a rule, photographs ought to be taken not only of the vehicles involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerned by Courts.
13.4. The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist, etc. 13.5. Furthermore, the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case.CA No. 41/2012 Page No. 7 of 14
Kishan Lal vs. State 13.6. The drivers of the vehicle involved must also be subjected to tests to reveal whether they had consumed any intoxicants.
13.7. Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because, no Criminal Court would (and ought not to) convict any person merely on the basis of conjectures, assumptions, probabilities. All elements of subjectivity need to be eliminated and the investigation should be such that, when a charge-sheet is filed, the Court is presented with a case which when taken objectively would lead to the inescapable conclusion that a conviction is maintainable.
(emphasis supplied)
10. In the light of aforesaid judgments the facts of the case in hand will be analysed to ascertain as to whether there are sufficient evidence on record to uphold the conviction qua appellant or not?
11. Before dealing with the evidence led by the prosecution, I deem it appropriate to deal with the defence version. As per appellant, the bus was stationary at Pump House and the car was coming from behind and it was hit by a Tata 407 tempo, consequently car rammed in the stationary bus, which caused injury to PW5. The car was mechanically inspected by PW7 T.U.Sidiqqui. As per inspection report, all damages that found on the body of car were noticed in the front portion of the car. Had the car been hit by Tata 407 from behind as alleged by appellant, there would found some damages in the rear portion of the car but it is not so, which rules out the defence version.
CA No. 41/2012 Page No. 8 of 1412. However, mere fact that defence version is improbable does not mean that prosecution has succeeded to prove its case beyond reasonable doubts. It is well settled law that prosecution has to stand on its legs and prosecution cannot take the advantage, if there is any defect in defence version or defence version is otherwise improbable.
13. Though prosecution had examined as many as eight witnesses, yet prosecution case is based on the testimony of PW5 Manmohand Bedi and his brother Jagmohan. Since PW5 had sustained injury, I deem it appropriate to deal with his testimony first.
14. PW5 deposed that when he reached near Pump House Karol Bagh one bus was ahead to his car and was stationed. It means that the car was in stationary position. He further deposed that the driver of the bus started the bus and turned suddenly towards right side negligently due to which his car was damaged. Though he applied brake but car could not be stopped and due to negligence of driver of bus he met with an accident. From his testimony two things become clear firstly that when he reached near Pump House, the bus was ahead to him and it was stationary; secondly though he applied the brake but could not stop the car.
15. In his testimony PW5 failed to depose the distance between his car and the bus when he saw bus first time in stationary position. In this regard the site plan Ex.PW8/B is also relevant. In the site plan neither width of road is shown nor it is shown in which lane bus was stationed just prior to the accident or in which lane the accident had taken place. Similarly, it is not shown in which lane car was being driven and at what point of time victim had applied the brake. No skid marks had been shown in the site plan. From the testimony of PW5, it is crystal clear that he was coming CA No. 41/2012 Page No. 9 of 14 Kishan Lal vs. State from behind and bus was ahead to him and it was in stationary position. Since, he was coming from behind, it was his duty to maintain proper distance from the bus. It is pertinent to state that in his entire deposition PW5 did not depose that he was going in extreme right lane and the driver of the bus had turned the bus extremely in right side. Rather, from the deposition of PW5 it appears that he was behind the bus just before the accident. If he was behind the bus and the driver had turned the bus towards right side, he would have certainly steered the wheel of the car towards left side to avoid the collision but perusal of the photograph Ex.PW2/A shows that the car was rammed in the rear right side of the bus. This shows that the car was not in the extreme left lane of the road. As already stated that from the site plan it is not clear whether the bus was stationed in extreme left lane or in the middle lane just prior to the accident, hence in the absence of said information, it is difficult to draw any inference qua the negligence of the bus driver.
(i) Further, from the careful perusal of photograph Ex.PW2/A reveals that another bus is visible that is crossing the offending bus from its right side. It means that there was enough space in the right side of the bus for the traffic coming from behind. If it was so, the car of PW5 had sufficient space to over take the bus from the right side.
(ii) Though PW 5 deposed that he applied brake to stop the car but he failed to do so and met with an accident. But he failed to disclose what was the approximate speed of his car. In the absence of approximate speed, it is difficult for the Court to assess as to whether he was coming at the high speed or not? Similarly, during investigation, investigating officer did not deem it appropriate to highlight the tyre skid marks to show when the victim had applied the brake to stop the car. In the absence of this CA No. 41/2012 Page No. 10 of 14 Kishan Lal vs. State information, the testimony of PW5 to the extent that he had applied brake in his car does not inspire any confidence.
16. Admittedly, during the investigation, investigating officer did not record the statement of any bus conductor or any passenger. Perusal of the photographs reveals that offending bus plies between Shahadra and Karol Bagh Bus Terminal. Thus, there is quite possibility that bus was terminated at the said point and bus was stationary as alleged by appellant and due to that reason, investigating officer failed to get any passenger in the bus. But he was supposed to examine the bus conductor but he failed to do so without any reasonable explanation.
17. If the bus was terminated at Karol Bagh bus terminal and it was ready to take another trip or due to that reason accused had to take a U turn from the cut as shown in the site plan, investigating officer was supposed to check the time table of the bus to show when the next trip of the said bus was scheduled but he failed to do so. If there was no trip at the time of accident, it would rule out the possibility of taking turn and if there was next trip near the time of accident it would have corroborated the prosecution version. But unfortunately no such investigation had been conducted by the investigating officer in this regard.
18. Though in the site plan Ex. PW8/B one cut is shown but said cut is not visible in the photographs. Perusal of the photographs reveals that all photographs had been taken from the close angle and no long shot/landscape shot was taken. Long/landscape shot helps the Court to assess the place of occurrence in a better way but unfortunately in this case no such attempt was made by the investigating officer.
CA No. 41/2012 Page No. 11 of 1419. While holding the appellant guilty, learned Trial Court opined that accused had turned the bus in right side without giving any indication. Perusal of the testimony of PW5 reveals that he nowhere deposed that accused had not given any indication before turning the bus towards right side. Learned Trial Court also opined that act of turning vehicle in a moving traffic without giving any indicator is per-se an act of negligence. No doubt in a moving traffic, changing of lane without giving proper indication to the traffic coming from behind amounts negligence or rashness but in the instant case PW5 did not state so. In these circumstances, it is difficult to hold that the bus driver had not given any indication.
(i) While holding the appellant guilty, learned Trial Court also opined that PW5 could not stop his car despite the best efforts made by him. But there is no such evidence on record in this regard. PW5 even did not depose the approximate speed of his car. He even did not depose what was the distance between his car and bus when he saw the bus first time in stationary position. He also failed to depose when he applied the brake.
Nor the investigating officer deemed it appropriate to reflect all these information in the site plan. In these circumstances, it is difficult to hold that PW5 had applied any brake to stop his car. In the given circumstances, the possibility that PW5 was coming at high speed and after finding the bus in front of him he lost his control over the car and rammed into the bus cannot be ruled out.
20. As already stated that the information about the lane in which the bus was stationed just prior to the accident and the lane in which accident had taken place was quite relevant to determine the rashness or negligence on the part of bus driver. Similarly, the information in which lane car was being driven just prior to the accident and in which lane it was CA No. 41/2012 Page No. 12 of 14 Kishan Lal vs. State found after the accident was equally relevant to determine the rashness and negligence on the part of bus driver but unfortunately in the instant case no effort was made to collect such information.
21. Now coming to the testimony of PW6 who is brother of the injured.
22. It is pertinent to state that though PW6 is an eye witness but unfortunately the witness was not cross-examined by the accused. From the Trial Court record, it appears that no counsel was present on that day and no effort was made to provide him legal aid counsel. Since, PW6 was an eye witness, it was the duty of learned Trial Court to provide legal aid counsel to the accused to cross-examine the witness, if the accused was not represented by his counsel on that day. Since the witness was not cross examined, his testimony is required minute scrutiny.
23. PW6 deposed that at the time of accident he was standing at Karol Bagh bus terminal. Perusal of the site plan reveals that bus terminal has been shown across the road but in the site plan the position of PW6 has not been shown. In the absence of this information it is difficult to draw an inference whether PW6 was not in a position to see the accident or not. He further deposed that he was waiting for a bus but he failed to depose where he had to go and for which bus he was waiting. Generally, when the passengers wait for a bus at terminal, their attention is used to be towards the direction from where their bus would come. Though PW6 deposed that he saw the offending bus suddenly took the right turn without giving indication and one maruti car which was coming from behind hit in the right side of the car and the car was damaged but he did not depose where the bus was stationary just before the accident and what was the position of CA No. 41/2012 Page No. 13 of 14 Kishan Lal vs. State the car just before the collision. In these circumstances, the possibility that his attention might have been attracted towards the bus and car after hearing the impact of collision cannot be ruled out. Since, PW6 was brother of injured, the possibility that investigating officer had cited him as an eye witness to strengthen the prosecution case cannot be ruled out. This possibility appears more plausible because his name is not even mentioned in the rukka. Had he witnessed the accident, the investigating officer would have certainly mentioned this fact in the rukka but it is not so.
22. In the light of aforesaid discussion, I am of the considered opinion that the evidence led by prosecution are not sufficient to prove that the accident had taken place due to rashness or negligence on the part of appellant, thus appellant deserves the benefit of doubt, accordingly, I hereby acquit the appellant from all the charges.
23. In view of the above, conviction and sentence are set aside, thus, criminal appeal stands allowed.
24. Copy of judgment be sent to the learned Trial Court.
25. TCR be sent back.
26. Criminal appeal file be consigned to record room.
Announced in the open Court on 28th day of November, 2014 (PAWAN KUMAR JAIN) Additional Sessions Judge-01 Central District, THC: DELHI/sv CA No. 41/2012 Page No. 14 of 14