Delhi High Court

Bal Kishan vs State on 6 June, 2008

Author: G. S. Sistani

                 IN THE HIGH COURT OF DELHI, AT DELHI

                            Crl.Rev.P.No.8/2008

%                Judgment delivered on June 06, 2008.


#        BAL KISHAN                      .....        Petitioner
                  Through:     Mr.Shahid Ali, Advocate

                                    Versus


$        STATE                            ....      Respondent

                   Through:    Ms.Jaideep Malik Advocate.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI

         1.   Whether reporters of local papers may be allowed
              to see the Judgment ?                      YES

         2.   To be referred to the Reporter or not?       YES

         3.   Whether the judgment should be reported in the
              Digest?                                   YES

G.S.SISTANI, J :

1. The present petition has been filed under Section 397 read with

Section 482 of the Code of Criminal Procedure, 1973, assailing the

judgment dated 17.12.2007 passed by learned Additional Sessions

Judge, whereby the judgment dated 10.10.2007 and the order of

sentence dated 27.10.2007 have been confirmed. The petitioner

herein has been convicted for Rigorous Imprisonment for a period

of three months with fine of Rs.1000/- under Section 279 IPC and Rigorous Imprisonment for a period of one year and fine of

Rs.3,000/- under Section 304A IPC.

2. The case set up by the prosecution is that on 13.9.1998 an

accident had taken place at about 1:30 p.m. when the deceased

along with his brother was going towards a mosque to offer prayer

via Wazirabad Road, Loni Flyover. When they reached the Flyover

one truck bearing No.HR26A-7256 driven at very fast speed came

from behind and hit the deceased which resulted in his death. A

report was lodged by the brother of the deceased, which

culminated into FIR No.93/1998 under Sections 279/304-A IPC.

3. It is contended by learned counsel for the petitioner that the

impugned judgments and order on sentence are ex facie illegal,

unwarranted, unlawful, perverse and contrary to facts and law. It

is submitted that both the Courts below have not appreciated the

evidence on record in the right and just perspective. Learned

counsel further submits that there is material irregularity and

illegality in the judgment which has resulted in miscarriage of

justice. According to learned counsel for the petitioner, the truck

in question was loaded and was moving in the upward direction on

the flyover and thus it is not possible for the truck to be in high

speed. Learned counsel further submits that there is material

discrepancy in the evidence of the I.O., who had stated during cross-examination that the accident had occurred about 25-30

steps before the starting point of the flyover whereas according to

the site plan the accident had taken place at point (A) which is 30

steps upward on the flyover. Learned counsel for the petitioner

has placed strong reliance on AIR 1997 SC 221, wherein the

Supreme Court has held:

"Section 304A-Negligent driving along Public way - if a Pedestrian suddenly crosses a road without taking note of the approaching bus there is every possibility of his dashing against the bus without the driver becoming aware of it. The bus driver cannot save accident however slowly he may be driving and therefore he cannot be held to be negligent in such a case."

4. According to the petitioner, the site plan shows that the deceased

was walking in the middle of the road and as per evidence of DW-1

the deceased had come in front of the truck all of a sudden from

the right side of the truck therefore, accident had occurred.

Merely, because there was an accident does not mean that the

petitioner was driving in a rash and negligence way. Learned

counsel submits that learned Courts below have failed to

appreciate the judgment of the High Court reported in 1996 JCC

677 wherein the High Court has held that if a passenger falls down

and is crushed under the rear wheel and the bus is stopped at a

distance 8 to 10 feet from the spot, it shows that the driver was

driving the bus at a normal speed. In another decision reported in 2007 (4) JCC 3148 the High Court has also held that mere

allegation of high speed does not speak either of the negligence or

rash driving by itself. Lastly, learned counsel for the petitioner

submits that there is no evidence on record to show that the

vehicle was being driven in rash and negligent manner.

5. Learned APP for the State on the other hand submits that in this

case there is concurrent findings of two courts and the evidence of

PW-5, who is real brother of the deceased had stated that that the

truck was being driven in a very negligent manner and at a very

fast speed and in a zig-zag manner and in view of the fact that

there is no cross-examination of this witness the revision is liable

to be dismissed.

6. I have heard learned counsel for the parties. The basic facts are

not in dispute. Both the Courts below have taken into

consideration that in order to prove the case under Section

279/304-A IPC, the prosecution must prove the identity of the

accused, that the accused was driving the offending vehicle in a

rash and negligent manner, due to rash and negligent driving had

caused the death of the deceased.

7. Learned trial court has taken into consideration the evidence of

PW-5, the brother of the deceased, who has deposed that on the

fateful day he along with his brother were going from his shop towards the mosque for the noon prayer. The truck in question in

a negligent manner came at a very fast speed in a zig-zag manner

and ran over his brother, who died at the spot and he was dragged

at some distance. This witness could not be cross-examined and

thereafter on an application filed by the petitioner herein under

Section 311 Cr.P.C. permission was granted for his cross-

examination, subject to availability of the witness. The witness

could not be cross-examined as meanwhile he had died. The

learned Additional Sessions Judge has also placed reliance on the

evidence of PW-5, the brother of the deceased. Petitioner had

contended before learned Additional Sessions Judge that reliance

cannot be placed on the evidence of PW-5 as he was not produced

for further cross-examination. The learned Additional Sessions

Judge has taken into consideration the facts that an opportunity

was given to the petitioner to cross-examine which opportunity

was not availed thereafter the application under Section 311 of the

Cr.P.C. was filed, which was allowed but the witness had expired

by then. Learned Additional Sessions Judge has held that standard

enacted in Section 33 of the Evidence Act have been satisfied and

the testimony of PW-5 is relevant for adjudication of the guilt of

the appellant. The learned Additional Sessions Judge has taken

into consideration a judgment of this Court reported in ILR 1969 Delhi page 1090 wherein it was held that for value and weight of

testimony of witnesses, who had expired before cross-examination

could be concluded, following features are to be taken into

account: (a) nature of testimony, (b) its probative value, (c) status

of witness, (d) his relationship or connection with parties, (e) likely

animus or any other feature touching his credibility, (f) whether it

was taken on record that, if cross-examined his testimony was

likely to be seriously shaken, his good faith or credibility to be

successfully impeached, and (g) Court may as a rule not to act

upon such evidence, if uncorroborated. Based on this decision

learned Additional Sessions Judge has taken view that testimony of

a witness, who had died before his cross-examination, cannot be

brushed aside abruptly. Learned Additional Sessions Judge while

perusing the evidence of PW-5 has observed that no animus was

attributed to PW-5 nor it is shown that he was not a man of

veracity. Learned Additional Sessions Judge, further observed

that the detailed events are in a cohesive and consistent manner

and further the evidence of PW-5 is corroborated by circumstantial

evidence.

8. In this case the prosecution has examined nine (9) witnesses and

only one witness was examined by the defence. It would be useful

to analyse the evidence of some of the material witnesses.

9. PW-1, Head Constable, Prem Chand, has proved the FIR. The

evidence of PW-5, who is the star witness of the prosecution reads

as under:

"The incident of accident occurred on 13.2.98 at Gokalpuri Flyover which goes to Ghaziabad. I and my brother Mohd. Ayub were going from my shop towards the mosque for noon prayers as it was 1.30 pm. The number of the truck was HR26A-7256 and the accused present in Court today was driving the said truck. The truck was being drive in a very negligent manner at a very fast speed and in a zigzag manner and the truck was loaded. The truck ran over my brother and he died at the spot and he was also dragged for some distance. The police had arrived at the spot and got recorded my statement Ex.PW5/A, signed by me at Pt.A. The truck was seized vide Ex.PW5/B, signed by me at, Pt.A. Accused was arrested and personal search was carried out vide Ex.PW5/C, signed by me at Pt.A. Photographs were also taken in my presence. IO also recorded my supplementary statement."

10. As per evidence of PW-6, Constable Om Prakash, he along with I.O.

SI Karam Chand went at the spot of the accident and found a truck

No.HR 26A-7256 in semi burned condition and a lot of crowd had

also gathered and one dead body was also lying at the spot. He

arrested the petitioner herein and also conducted his search.

11. As per the evidence of PW-7, Mohd.Yakub, he was working at his

shop and he came to know through public person that an accident

had taken place by a truck at Loni flyover. He identified the number of truck. During cross-examination he could not tell where

the accident had occurred.

12. PW-9, S.I. Karam Chand has also testified that he reached at the

spot of the accident and found the truck No.HR 26A-7256 which

was on fire and one injured person was lying on the road, who was

shifted to G.T. Hospital. He prepared the site plan. During the

cross-examination this witness has stated that the location of the

accident was at a distance of 25-30 steps before the starting point

of the flyover, near patri (divider).

13. DW-1, Radhey Shyam, has deposed that the petitioner-accused

was working with him as a driver in the FCI Godam. He was in the

truck sitting on the front seat with the petitioner. According to this

witness when the truck reached at Loni flyover, a person suddenly

came in front of the truck from right side of the truck and came

under the front wheel of the truck. The truck was going by the

side of divider on the flyover. According to him the truck, which

was loaded, was going at the speed of 20 km.ph. During the

cross-examination he had stated that the deceased was walking

on the divider and there was no other person with him. He denied

the suggestion that the deceased was accompanied by any other

person. He denied the suggestion that the petitioner was driving

the truck in rash and negligent manner and at a high speed.

14. From analyzing all the evidence of the witnesses it categorically

emerges that on 13.2.1998 at about 1:30 the petitioner was

driving truck bearing No.HR 26A-7256 and the deceased met his

death in the accident near Loni Flyover. It is not in dispute that in

order to sustain conviction for an offence under Sections 279/304-

A IPC, the prosecution must prove : (i) the identity of the accused,

(ii) the accused was driving the offending vehicle in a rash and

negligent manner, (iii) due to such rash and negligent driving of

the accused, the death of deceased Md.Ayub had occurred, as

observed by the Metropolitan Magistrate.

15. According to prosecution, PW-5 was the only eye witness. None of

the witnesses, besides PW-5, have testified that the petitioner was

driving the truck in a high speed and in a rash and negligent

manner. So to say the evidence of PW-5 has been corroborated by

either witness as observed by the learned Additional Sessions

Judge, is not borne out from the record. It has further been

observed that no animus was attributed to PW-5 nor it is shown

that it is not a man of veracity. Admittedly this witness was not

cross-examined, no question could be put to him. The court can

also not loose sight of the fact that PW-5 was the brother of the

deceased. It has been observed that he detailed the evidence in a

cohesive and consistent manner.

16. While dealing with the revision and especially when there are two

concurrent findings against the petitioner, the High Court must

satisfy itself that the order and judgment passed have resulted in

failure of justice. It has been repeatedly held that the High Court

while dealing with a revision petition will only exercise its power

where there is material error or defect in law or procedure,

misconception or mis-reading of evidence. The judgment of the

Court below should disclose cogent and valid reasons. In my view

present case falls in the category of mis-reading of evidence and

failure to take into consideration and lack of any evidence and no

finding that the petitioner was driving the truck in a rash and

negligent manner. This resulted in miscarriage of justice. The

Metropolitan Magistrate has formed his opinion that the accused

was driving the truck in a rash and negligent manner on the basis

of the evidence of PW-5 and DW-1 that the deceased was dragged

for some distance. His observations are "Further, as confirmed by

DW-1 and PW-5 that deceased was dragged for some distance and

deceased came under the right front wheel of the truck, itself

proves that the truck was being driven by accused in a rash and

negligent manner." This in my view cannot be the only

consideration for arriving at this conclusion. DW-1, who was

sitting in the truck does not say so, that the truck was being driven in a rash and negligent manner. In fact DW-1 has stated that all of

a sudden that the deceased came infront of the truck from the

right side. He further says that the truck was loaded and was

going in the speed of 20 km.ph.. The Courts below have

completely ignored the vital evidence and site plan, which show

that the deceased was walking in the middle of the road near the

divider of the flyover. The evidence of PW-5, who is the brother of

the deceased no doubt shows that the truck was being driven in

negligent manner, in a fast speed and in a zig-zag manner.

However, he also goes on to say that the truck was loaded. This

witness, who is the only eye witness relied upon by the

prosecution could not be cross-examined. Precisely these are

vital aspects which required cross-examination. In fact DW-1 has

even denied the presence of PW-5 at the time of the accident.

Whatever has been stated by PW-5 finds no corroboration from

any of the witnesses of the prosecution. While deciding the

present matter, the Courts below should have come to a

categorical finding and should have been found some

corroboration on the aspect of rash and negligence driving. It is

also noticed that PW-5 could not be cross-examined despite the

application of the petitioner being allowed. The prosecution has

failed to place any material on record to show the tyre marks on the road and any other material which could have thrown light on

the aspect of speed of this truck.

17. All this could only have been said in case the witness had passed

the test in cross-examination. The spot of the accident in my

opinion really holds key in the facts of this case. As per the site

plan the accident occurred at point (A) which is near the divider of

the flyover. In view of this it stands established that the deceased

was walking in the middle of the flyover on the divider. PW-5, who

is the brother of the deceased, whose evidence is sought to be

strongly relied upon by the Courts below, has failed to give this

vital evidence. However, in his evidence he has no doubt stated

that the truck was loaded, but the possibility of a loaded truck

going in a zig-zag manner in a high speed is not very probable.

During the cross-examination of PW-9 S.I. Karam Chand, he has

stated that the accident took place near patri (divider of the

flyover). DW-1 has also stated that the truck was going by the

side of the divider between the flyover and suddenly the deceased

crossed the road. Even during the cross-examination, he has

stated that it is correct that the deceased was walking on the

divider in the same direction in which our truck was going. It is

also the case of the prosecution that the deceased came under the

right front wheel of the truck, which also lends support to the testimony of PW-9 as well as PW-1, together with location marked

on the site plan that the deceased was walking on the divider or

alongside the divider. I am in agreement with the counsel for the

petitioner that the courts below have not appreciated this part of

the evidence, which has resulted in material miscarriage of justice.

The Supreme Court in Mahadeo Hari Lokre Vs. The State of

Maharashtra AIR 1972 SC 221 has observed:

"If a person suddenly crosses the road the Bus Driver, however, slowly he may be driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the Bus Driver was negligent."

18. It is also relevant to take into consideration the observations made

by the learned Single Judge of this Court in Abdul Subhan Vs.

State (NCT of Delhi) 2007 (4) JCC 3148, based on the decision of

the Apex Court in State of Kernataka Vs. Satish that "Merely

because the truck was being driven at a „high-speed‟ does not be

speak of either „negligence‟ or „rashness‟ by itself." Except the

evidence of PW-5, who was admittedly not cross-examined, there

is no evidence on record to show that the vehicle was being driven

at a high speed.

19. For the reasons stated above, the judgment and order of

conviction 10.10.2007, 27.10.2007 and the judgment dated 17.12.2007 are set aside. Petitioner is acquitted and be released

from custody forthwith, if not wanted in any other case. In case