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Ajay Singh VS. State (Govt. Of Nct Of Delhi)

    Criminal Appeal No. 137 of 2001, dated January 30, 2002
    Decided On, 30 January 2002
    At, High Court of Delhi
    For the Petitioner:R. N. Mittal, Advocate. For the Respondent:Anil Soni, Advocate.

Judgment Text
This appeal by accused/appellant is directed against the judgment dated 22nd February, 2001 and order dated 24th February, 2001 of an Additional Sessions Judge convicting him under Section 308, IPC and sentencing to undergo RI for 4 years.

Case of the prosecution, in brief, is that on 26th May, 1998 information received at PS, Chankyapuri that a person was lying unconscious at the round about of Shanti Path and Niti Marg, was recorded in the DD at No. 15-A and copy thereof Ex. PW-10/A was entrusted to ASI Srikant, PW 10 for enquiry. PW 10 along with Constable Chotte Lal, PW 4 reached the spot where he found Bus No. DL IP 8557 standing. He also found that conductor of the bus (appellant) had been apprehended by public. PW 10 came to know that the injured had been removed to hospital and driver of the bus fled away. Appellant and bus were taken to the police station by PW 10. On reaching police station PW 10 got the information that injured Yash Pal Devgan, PW 1 had been taken to Safdarjung hospital. He went there and found the injured admitted but he was declared unfit for making statement by the concerned doctor. On the basis of MLC and other facts PW 10 made endorsement on the copy of said D.D. No. 15-A and got the FIR registered under Section 279/337, IPC. Thereafter on 15th July, 1998, PW 10 recorded the statement of injured wherein he told of his having been pushed out of the running bus by the appellant and case was thus converted under Section 308, IPC.

In his statement under Section 313, Cr. P.C. the plea taken by appellant is that the injured was holding a brief case in one hand and mobile in another and when he was trying to get down from the bus at his stop he could not maintain the balance and fell down from the running bus.

Submission advanced by Sh. R. N. Mittal for appellant was that injured, PW 1 was brought to Safdarjung hospital with alleged history of RTA (Road Traffic Accident) and Dr. Sukhdeep Kaur, PW 9 who prepared the MLC, Ex. PW 9/A found the injured conscious and oriented. Sushma, sister (erroneously shown as wife in MLC) who got PW 1 admitted in Safdarjung hospital should have been told by PW 1 about his being pushed out of the running bus by appellant if he actually had been pushed by him. Neither Sushma informed about such a pushing to PW 10 when the visited the hospital nor has she been examined as a witness in the case. As a part of submission it was further contended that PW 1 came forward with the assertion of his being pushed out by the appellant in his statement dated 15th July, 1998 recorded after more than one and a half months of the occurrence. On the basis of such a statement which is supported by the depositions of three alleged witnesses of occurrence, finding of guilt under Section 308, IPC could not have been legally recorded by the trial Court. Reliance was placed on the decision in Sita Ram v. State (Delhi Administration) 1997 (1) Chand Cri C 371 : (1997 Cri LJ 3686) (Delhi). To appreciate said submission, reference to the material evidence led by the prosecution in the case has become necessary.

Yashpal Devgun, PW 1 deposed that on 26th May, 1998 he was working as an Assistant in CPWD, Nirman Bhawan and on that date around 6.20 p.m. he boarded Bus No. DL IP 8557 plying on route No. 620 from G Block, Sena Bhawan for going to Moti Bagh I were he was residing. Nirmal Singh (PW 5) who is known to him, also boarded the same bus. Usual bus fare from G Block, Sena Bhawan to Moti Bagh I was Rs. 2/- in those days. Appellant was the conductor. PW gave him currency note of Rs. 5/- for purchase of two tickets of Rs. 2/- each and asked for return of balance amount of Re. 1/-. Appellant issued two tickets of Rs. 3/- instead of Rs. 2/- each. PW 5 told him that he had issued tickets of Rs. 3/- by mistake and actual fare was Rs. 2/- per person. There was exchange of hot words between the appellant and PW 5. He and the other passengers travelling in bus told the appellant that actual fare was Rs. 2/- per person for the said distance. Thereupon appellant told them that there were two drivers, two conductors and two helpers in the bus and whosoever talked much would be thrown out of the bus. In the meantime bus reached near Kuwait Embassy and the driver called the passengers who had to alight at Moti Bagh I bus stop, to reach the front gate. He along with PW 5 reached the front gate. When bus was near the circle of Railway Museum the appellant pushed him out of the running bus. He was having a briefcase with him. Same also fell down. Due to fall he sustained severe injuries on his head. Driver stopped the bus about 100 yards away from the place where he had fallen. Due to injuries there was bleeding from his both eyes as a result thereof he was unable to see. Somebody took him to NDMC hospital. From there he was taken to Safdarjung hospital and again from there to VIMHANS, Nehru Nagar where he remained admitted in ICU from 26th May, 1998 to 8th June, 1998. After discharge he was advised bed rest for one month. He expressed his inability in saying as to who took him to hospital. He denied the suggestion that there had been no quarrel with the appellant and he fell down while trying to alight from the running bus and not pushed by the appellant. Sh. Nirmal Singh, PW 5 Sh. S. K. Joshi, PW 8 and Laxmi Narain, PW 2 are the alleged eye witnesses of occurrence. PW 1 was removed to NDMC hospital and from there to Safdarjung hospital by PWs 5 and 8. In their statements PWs 5, 8 and 2 have corroborated the testimony of PW 1 in regard to appellant having over charged bus fare, he having exchanged hot words with PWs 5 and 1 on the issue of over charging the fare and he having pushed PW 1 out of the running bus.

Dr. Ajay Bakshi, Consultant Neuro Surgeon in VIMHANS hospital who treated PW 1 on his admission there on 26th May, 1998 deposed that at the time of admission PW 1 was unconscious and was having swelling on both his eye lids. His CT Scan was done which showed bifrontal contusions with fractures of right occipital and left temporo-parietal region in the skull. Nature of injuries sustained by PW 1 was grievous. Ex. PW 7/1 is the discharge summary bearing his signature at point "A". In cross examination he stated that alleged history of having been pushed out of the bus as mentioned in discharge summary was given by PW 1 himself on the date he was discharged from hospital i.e. 8th June, 1998. He denied the suggestion that medical papers had been fabricated at the instance of PW 1. Dr. Sal Ram Natrajan, PW 7 working in the same hospital proved the discharge summary Ex. PW 7/A as also medical certificate Ex. PW 7/B. To be only noted that in Ex. PW 7/B PW 1 was advised rest upto 3rd July 1998.

Only other witness whose statement needs to be referred is ASI Sri Kant, PW 10 (I.O). He deposed that on 26th May, 1998 on receipt of copy of DD No. 15-A he along with Constable Chotte Lal reached Shanti Path-Niti Marg where bus No. DL-IP-8857 was found standing. He came to know that injured had been removed to hospital. Appellant had been apprehended by the public. Driver of the bus had fled away. He brought the appellant and bus to the police station where he was informed by the Duty Officer that injured had been taken to Safdarjung hospital. He went to Safdarjung hospital where the injured was found admitted. He moved application Ex. PW 10/B for recording the statement of injured but the concerned doctor declared him unfit for making statement. On the basis of MLC and other facts he prepared the rukka and got FIR under Sections 279/337, IPC registered. On 15th July, 1998 he recorded the statement of injured and PWs 8, 5 and 2 and on the basis thereof Section 308, IPC was added. On the same day PW 1 handed over two exhibits Ex. PW 7/A and B. PW 10/G is the site plan prepared by him. In cross examination he admitted that he did not record the statement of any of the public witnesses who had apprehended the appellant on the date of occurrence.

In M.L.C. Ex. PW 9/A in the hand of Dr. Sukhdeep Kaur then posted as Junior Resident in Safdarjung hospital, PW 1 is shown to have been admitted at 6.55 p.m. PW 1 has been shown to be conscious and oriented in this MLC. So is the statement of PW 9. In the application Ex. PW 10/B moved by PW 10, seeking permission to record the statement of PW 1, PW 1 was reported to be unfit for making statement at 9.45 p.m. on 26th May, 1998. It is not in dispute that PW 1 was removed the same day to VIMHANS for treatment. As discussed above, Dr. Ajay Bakshi, PW 11 at the time of admission had found PW 1 unconscious and his CT Scan showed bifrontal contusions with fractures of right occipital and left temporo-parietal origin in the skull. With these injuries and having been found unconscious at 9.45 p.m. PW 1 could not have been conscious and oriented at 6.55 p.m. There was thus no occasion on the part of PW 1 to have disclosed to his sister Sushma that it was appellant who pushed him out of the running bus. It is pertinent to state that although statement under Section 161, Cr. P.C. of PW 1 was recorded on 15th July, 1998 by PW 10 but he had informed PW 11 at the time of preparation of discharge summary Ex. PW 7/A on 8th June, 1998 that he had been pushed out of the running bus by the appellant. Testimony of PW 10 does not suggested that he had tried to contact PW 1 or the said eye witnesses of occurrence between 26th May, 1998 till 15th July, 1988/4th August, 1998 after PW 1 was removed to VIMHANS. Delayed recording of statements of PW 1 on 15th July, 1998 and of said PWs 2, 5 and 8 on 4th August, 1998 in above backdrop was in

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dereliction of duty on the part of investigating officer PW 10 and the same would not make the evidence of said witnesses suspect. Further, in the site plan Ex. PW 10/G, PW 1 is shown to have fallen at point "A" which place is near the chamber of Niti Marg and Shanti Path. To be noted that bus stop of Moti Bagh I is faraway from that place. Said place of fall of PW 1 completely belies the stand taken by the appellant that PW 1 fell down from the running bus when he was trying to get down therefrom at his stop. Ratio in Sita Ram's case (1997 Cri LJ 3638) (Delhi) (supra) has no applicability to the facts of this case Submission referred to above advanced on behalf of appellant is thus, repelled being without any merit. Relying on the statements of PWs 1, 2, 5 and 8 the appellant had been rightly convicted and sentenced under said Section 308, IPC. Consequently, the appeal is dismissed. Appellant will surrender before the trial Court today itself to serve out the sentence of imprisonment awarded to him by that Court. Appeal dismissed.