State NCT of Delhi v. Kishan Lal

1. The present appeal has been preferred by the appellant/State under Section 378 Cr.P.C., seeking setting aside of the impugned judgment dated 28.11.2014 passed by the learned ASJ-01, Central District, Tis Hazari Courts, Delhi, in CA No. 41/2012 arising out of FIR No. 64/1999 registered under Sections 279/338 IPC at P.S. DBG Road, whereby the respondent was acquitted of all charges. The impugned judgment was rendered by the learned ASJ in the appeal against the judgment of conviction dated 08.05.2012 passed by learned CMM, Delhi. Notably, the leave to appeal before this Court was granted vide order dated 23.02.2018.

2. The case of the prosecution, briefly stated, is that on 04.03.1999 at about 03:05 p.m., an intimation regarding a road accident at Karol Bagh bus CRL.A. 234/2018 Pg. 2 of 7 terminal was received at Police Station DBG Road from the police control room. ASI Sushila Yadav (PW-8) and Ct. Om Parkash (PW-1) were deputed to the spot. Upon reaching there, they found that an accident had occurred between a bus bearing registration no. DL1P8871 and a Maruti car bearing registration no. DNB2279. It was revealed that the injured had been removed to Jassa Ram Hospital. The I.O. reached the said hospital and recorded the statement of the injured/Manmohan Bedi (PW-5). He stated that at about 02:40 p.m., he was travelling in his Maruti car via DBG Road towards Karol Bagh, which is when he noticed a bus stationed towards the left side near the Pump House, Karol Bagh bus terminal. The driver of the bus, i.e., the respondent herein, suddenly started the bus, and without giving any indication, turned it towards the right at a very high speed. As a result, the complainant, despite applying brakes, could not stop his car and it rammed into the rear portion of the bus. As per the charge-sheet, the complainant sustained grievous injury.

3. The prosecution examined 8 witnesses in support of its case. PW- 1/Ct. Om Parkash, reached the spot pursuant to the PCR intimation, along with the I.O. PW-2 proved the photographs of the scene (Ex. PW-2/A). PW- 7/T.U. Siddiqui, the mechanical inspector, examined the Maruti car and proved his report. PW-8/ASI Sushila Yadav, the I.O., prepared the site plan (Ex. PW-8/B) and conducted the initial investigation. The most material witnesses, however, were the injured complainant/Manmohan Bedi (PW-5) and his brother/Jagmohan (PW-6), who was cited as an eye witness to the occurrence.

4. The complainant/PW-5 proved his statement recorded by the I.O. (Ex. PW-5/A), which forms the basis of the prosecution case. He stated that on CRL.A. 234/2018 Pg. 3 of 7 the date of the incident, he was driving towards Karol Bagh in his car via DBG Road and, on reaching near Pump House at Karol Bagh bus terminal, he saw a bus stationed ahead of him towards his left side. He deposed that the driver of that bus, i.e. the respondent, suddenly started the vehicle and turned it towards the right at a very high speed without giving any indication, whereupon, despite applying brakes, he could not stop his car and it rammed into the rear portion of the bus, causing damage to the car and grievous injuries to himself. In his testimony, he did not specify the distance between his car and the bus when he first noticed it in a stationary position, nor did he disclose the approximate speed at which he was driving or the exact point at which he applied the brakes. He also did not state that he was driving in the extreme right lane or that the bus had swung across the entire carriageway into that lane before the collision.

5. The I.O. of the case, ASI Sushila Yadav, was examined as PW-8. She deposed that, on receipt of information regarding the accident at Karol Bagh bus terminal, she reached the spot, learnt that the injured had been removed to Jassa Ram Hospital, went there, and recorded the statement of PW-5. She prepared the site plan (Ex. PW-8/B). The car was thereafter mechanically inspected by PW-7/T.U. Siddiqui.

6. The record shows that the site plan does not mention the width of the road, the lane in which the bus was stationed prior to the incident, the lane in which the car was being driven, or any tyre skid marks. The I.O. also did not examine any passenger of the bus or its conductor, nor did she collect the time table of the route to ascertain whether the bus was due to depart at the relevant time. CRL.A. 234/2018 Pg. 4 of 7

7. The statement of the appellant under Section 313 Cr.P.C. was recorded, wherein he denied the allegations put to him and set up the defence that the bus was stationary, and that the car of PW-5, coming from behind at a high speed, was first hit from the rear by a Tata 407 tempo and, as a result, rammed into the stationary bus. He maintained that he had not driven the bus rashly or negligently and claimed innocence, but he did not lead any defence evidence in support of this version.

8. I have heard the learned counsels for the parties and gone through the record. The prosecution case is that the appellant rashly and negligently started the bus he was driving and turned it towards the right, at a high speed and without indication, causing the car of PW-5 to hit its rear portion and resulting in grievous injuries to PW-5. The Trial Court had convicted the respondent for the offences under Sections 279/338 IPC on this basis.

9. As noted earlier, photographs from the spot were brought on record as Ex. PW-2/A. These photographs clearly show the Maruti car having struck the rear right portion of the bus. They also depict another bus passing on the right side of the offending vehicle, indicating that there was sufficient space available on the right side of the road for traffic coming from behind. The prosecution version that the respondent turned the bus to the right at high speed in such a manner that PW-5 had no option but to collide with it is, therefore, not borne out by the material on record. On the contrary, the photographs are consistent with the car having come from behind and hit the rear of the bus after failing to maintain an adequate distance from a vehicle that was ahead of it.

10. The mechanical inspection report of the car, proved through PW- 7/T.U. Siddiqui, records that all the damages on the body of the car were CRL.A. 234/2018 Pg. 5 of 7 confined to its front portion. No damage was found on its rear side. This effectively rules out the specific defence that a Tata 407 tempo had first hit the car from behind before it rammed into the bus. However, the improbability of the defence version does not, by itself, establish the prosecution case, and the burden still lies on the prosecution to prove rashness or negligence on the part of the appellant beyond reasonable doubt.

11. In this context, it is significant that the complainant, while asserting that he had applied brakes but could not stop the car, gave no particulars of the approximate speed at which he was travelling, the distance from which he first saw the bus, or the point on the road at which he applied the brakes. The site plan (Ex. PW-8/B) also does not indicate the width of the carriageway, the respective lanes of the bus and the car prior to the impact, or any tyre skid marks to objectively corroborate his version. From his own testimony it emerges that the bus was ahead of his car and in a stationary position when he first noticed it, and yet he was unable to halt his vehicle in time. In these circumstances, his bare assertion that he applied brakes but could not stop the car cannot be accepted, in the absence of supporting evidence that he himself had exercised due care.

12. The quality of the investigation further weakens the prosecution case. No passenger of the bus was examined, and the conductor was also not cited as a witness. The site plan shows a cut on the road, but that cut is not visible in the photographs, and all the photographs have been taken from a close angle, without any long or landscape shot to depict the overall layout of the bus terminal and the relative positions of the vehicles.

13. PW-6/Jagmohan, brother of the injured, was cited to be an eyewitness to the incident. His position at the time of the occurrence has not CRL.A. 234/2018 Pg. 6 of 7 been marked in the site plan. Though he stated that he was waiting for a bus at Karol Bagh bus terminal and saw the offending bus suddenly take a right turn and the car coming from behind hit it, he did not specify where the bus was stationary just before the accident or where exactly the car was positioned. He also did not say for which bus he was waiting or where he intended to go. The Sessions Court has further noted that his name does not find mention in the rukka. In these circumstances, the possibility that his attention was drawn only after the impact, or that he was later projected as an eye-witness in order to strengthen the prosecution case, cannot be ruled out.

14. The evidence led by the prosecution falls short of proving that the accident occurred due to rash or negligent driving by the appellant. Crucial particulars regarding the lanes in which the bus and the car were moving, and the speed/movement of the vehicles before and after the collision are missing. The photographs and the mechanical inspection report, read together, support a reasonable possibility that PW-5, while coming from behind at a speed which did not permit him to stop in time, failed to maintain a safe distance and rammed his car into the bus. In view of these doubts, the prosecution cannot be said to have established the guilt of the respondent beyond reasonable doubt. The benefit of the doubt enures to the respondent.

15. At this stage, it is also apposite to note that it is well settled that an appellate Court must be slow to interfere in an appeal against acquittal unless the findings of the concerned Court are shown to be perverse. The CRL.A. 234/2018 Pg. 7 of 7 principle of double presumption of innocence, which operates in favour of an accused after acquittal, must be duly respected[1].