Delhi District Court
12. In The Case Of Devender Kumar Singla vs . Baldev Krishan Singla 2004 Ii on 1 June, 2007
IN THE COURT OF SH. DIG VINAY SINGH, METROPOLITAN MAGISTRATE,
ROHINI, DELHI
In re,
STATE
VERSUS
Ajay
F.I.R. No. 89/03 430/94
U/s 279/338 IPC
P.S. Punjabi Bagh
JUDGEMENT
(a) The serial no. of the case : 23/2
(b) The date of commission of offence :12.6.94
(c) The name of complainant : Smt. Rama Sehgal
(d) The name, parentage, residence of accused: Ajay Kumar S/o Ram Surat R/o
Jhuggi no. 250, Udhog Nagar,
Delhi.
(e) The offence complained of/ proved :u/s279/338 IPC
(f) The plea of accused : pleaded not guilty
(g) The final order : Convicted
(h) The date of such order : 01.6.07
(i) Brief statement of the reasons for the decision :
1. Sole accused in this case was sent up for trial with the case of prosecution that on 12.6.94 at 4 pm the accused was driving three wheeler tempo no. DHL-7521 rashly or negligently on a public road so as to endanger human life and personal safety of others and while so driving he hit against scooter no. HR-29-5529 from the left side of the scooter while trying to overtake it and caused grievous injuries to the scooter rider Hansraj who was riding it and his wife was sitting as a pillion rider.
2. Accordingly a notice U/s 279/338 of IPC was framed against the accused to which he claimed trial.
3. In support of its case prosecution examined seven witnesses.
4. All the incriminating evidence was put to the accused in their examination U/s 313 Cr.p.c. to which accused generally denied and stated that he has been implicated falsely in this case. The accused did not opt to lead defence evidence in his favour. The accused however admitted that he was driver of the three wheeler tempo on the said date , time and place but the accused stated that the three wheeler was stationary since he was repairing his three wheeler at the place of accident. He stated that it was the scooter rider who fell down after hitting the middle verge of the road.
5. PW-4 Smt. Rama Sehgal and PW-5 her husband Hans Raj Sahgal were the two eye witnesses of the accident. Both of them deposed that they were travelling on the scooter no. HR-29-552912.6.94 at about 4 p.m and were going towards Karol Bagh via Rohtak Road which was driven by PW-5. In the meantime three wheeler tempo no. DHL-7521 came from behind at a fast speed and in reckless manner and while attempting to overtake the scooter from left side struck the scooter on the left side of the scooter as a result of which they fell down . PW-5 sustained injuries on his legs. However PW-4 escaped unhurt. PW-4 could not identify the accused in the court but PW-5 specifically and clearly identified the accused as the same person who was driving the TSR tempo at the time of incident. Both these witnesses were subjected to cross examination by the counsel for accused but despite cross examination nothing material could be brought out on record to impeach the creditworthiness or trustworthiness of these witnesses. Although PW-5 admitted in the cross examination that before accident he did not see the three wheeler and he saw the three wheeler only after the accident but he also deposed that he while driving his scooter heard the sound of fast approaching vehicle of accused and within fraction of second his scooter was hit by the vehicle of accused. This fact together with the act of overtaking the scooter of injured from left side and hitting the same while moving proves negligent driving and rash driving . It is not always necessary that the offending vehicle must have been seen by the injured witness before incident. Rather the rash or negligent driving is to be inferred from all the facts and circumstances in a given case.
6. PW-5 also proved the rash or negligent driving by the accused and her failure to identify the accused in court losses any importance particularly when the accused has been specifically identified by PW-5 another witness and also once the accused admitted in his examination U/s 313 Cr.P.C. that he was present at the place of accident with his TSR and he was also driver of the TSR, the identification of the accused is without question and is proved.
7. PW-1 Shayam Lal Chabra was the mechanical inspector who proved mechanical inspection report of both vehicles as EXPW1/A and B.
8. Pw-2 J C Vashist record clerk from DDU Hospital proved the MLC of injured as EXPW2/A and the same witness as PW-7 also proved the X- ray report of injured as EXPW2/B.
9. PW-3 Ct. Chander Bhan and PW-6 ASI Azad Singh both deposed that on 12.6.94 on receipt of DD No. 10A they reached the place of accident where PW-4 and accused were present alongwith both the vehicles in accidental condition . Injured husband of PW-4 already removed to hospital. PW-3 was left at the spot and PW-6 went to the hospital and came back to the spot . Both the vehicles were seized vide memos EXPW3/A and B and before seizing the vehicles the case was got registered on the complaint of PW-4. The accused was arrested and his driving license was seized vide memo EXPW6/C and D. Pw-6 was not cross examined by the accused despite opportunity and therefore his testimony remains absolutely unrebutted and uncontroverted.
10. Ld. Counsel Sh. P. S. Tomar advocate argued that Pw-4 did not identify the accused , which I have already discussed above that the same is immaterial since he has been identified by PW-5, PW-6 and PW-3 and also accused admitted himself his presence as driver of TSR Tempo at the spot.
11. Rather the defence taken by the accused that the scooter of injured hit the middle verge and fell down causing injuries to PW-5 appears to be an afterthought since this defence was taken for the first time in statement of accused whereas in the cross examination of PW-4 and PW-5 the defence suggested by the accused was that some other vehicle hit the scooter and it was not suggested that scooter hit the middle verge. Even otherwise PW-4 and PW-5 have consistently deposed that their scooter was being driven away from middle verge and it was hit by the TSR of accused.
12. In the case of Devender Kumar Singla vs. Baldev Krishan Singla 2004 II AD (Cr.) SC 217 it was held by hon'ble SC that the statement under section 313 is not evidence. It is only the accused's stand or version by way of explanation, when incriminating materials appearing against him are brought to his notice. Absence of any suggestion during cross-examination cannot be made up by a statement under section 313 Cr.P.C. At that stage the prosecution does not get an opportunity to question the accused about his stand in the statement under section 313.
13. It is further contended that there are contradictions as to where Pw-4 Smt. Rama met the police official i.e. at the spot or at the hospital and that site plan was not prepared as per PW-4. In my considered view none of the contradictions as appearing in the statement of the witnesses and as pointed out are material enough to create doubt about the truthfulness of the case of the prosecution. It may be mentioned here that the accused took up a defence that he has been falsely implicated in the present case but no cogent reason for false implication has been shown. Whenever an accused takes up a plea that he has been falsely implicated the first question which arises is as to what was the ground for false implication. This question in the present case has not been answered. It may be mentioned that for any false implication there has to be some or the other motive which is in the best knowledge of the accused and the onus to tell the motive of false implication is on the accused which could not be discharged in the present case. Simply by alleging that we have been falsely implicated -falsely implicated would not be sufficient to create doubt about the case of the prosecution. The accused does not have any kind of enmity with any of the prosecution witnesses therefore there is no question of his false implication. The nature of contradictions pointed out in the present case are minor and are infact simple errors of observation which occurs in human nature. The testimony of the witnesses are otherwise corroborating each other in all necessary material particulars. Simply because there occurs some minor variations in their powers of observation and retention would not make the case of the prosecution unbelievable.
14. In the case of Sukhdev Yadav & ors. Vs State of Bihar (2001) 8 SCC 86 it was held by Hon Supreme Court that that once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same . If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. Relying upon an earlier decision in Leela Ram vs. State of Haryana (1999) 9 SCC 525 it was observed that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Relying upon an earlier decision in Ramani vs. State of M.P. (1999) 8 SCC 649 it was also observed that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was also held that it is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeachment the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.
15. In Krishna Mochi and Others Vs. State of Bihar, (2002) 6 SCC 81, where it was held that it is the quality of evidence that matters and not the number of wit- nesses. It was further held that credible evidence of even a solitary witness can form the basis of conviction. That contradictions, inconsistencies, exaggerations or embellishments are inevitable. It was further held that a discrepancy existing in a prosecution case should not weigh with the Court so long it does not materi- ally affect the case. It was further held that the duty of the Court is not only to see that no innocent man should be punished but also to ensure that no person com- mitting an offence should get scot-free. It was also held that even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction could be maintained.
16. It is next contended that the doctor has not been examined to prove the MLC of injured. Although the doctor has not been examined but J. C. Vashist when he was examined twice as PW-2 and PW-7 has proved the MLC and X-ray report of injured PW-5 and despite opportunity this wit- ness was neither cross examined nor any objection was raised by the ac- cused at the time when these documents proved as exhibit.
17. In the case of (2003) 8 SCC 752- B regarding the stage at which the objection as to admissibility of document can be raised Hon,ble Supreme court held that , "such objections can be classified as,
(i) objection that the document sought to be proved is itself inadmissible, and
(ii) Objection directed not against the admissibility of the document but against the mode of proof thereof on the ground of irregularity or insufficiency.
Objection under the category (i) can be raised even after the document has been marked as exhibit or even in appeal on revision. But the objection under category (ii) can be raised when the evidence is ten- dered but not after the document has been admitted in evidence and marked as an exhibit. In the present case the ledger of books and photo state copies of the order in question and of the rent agreement were ad- mitted in evidence by the trial court without any objection from the oppo- site side. Therefore, the objection raised before High Court in second ap- peal that in the absence of the deceased maker of the entries in the ledger of books and in the absence of production of the originals the said document ought not to have been admitted, fell under the category (ii) and High Court erred in upholding that objection in appeal.
18. Hon'ble Supreme Court in 2004 CRI. L. J. 4912 Ishwar Sadeppa Nanden- navar, Petitioner v. State of Karnataka, Respondent. In the case of State of T. N. v. Rajendran, 2000 SCC (Cri) 40 : (AIR 1999 SC 3535 : 1999 Cri LJ 4552) and in the case of Damodar v. State of Karnataka, 2000 SCC (Cri) 90 : (AIR 2000 SC 50 : 2000 Cri LJ 175) the Apex Court has emphasised the necessity of some explanation from the accused even in the case where en- tire case of the prosecution revolves around circumstantial evidence if the other circumstances are proved prima facie by the prosecution. It was observed by hon,ble SC that Going a step ahead, in my view in the cases of offences like one on hand especially offences of driving of a vehicle rashly and negligently the accused driver is required to explain as to how according to him the alleged ac- cident took place. It is common knowledge that the true eye-witness account in the accident cases is very rare. The collision or killing of a person by the driving vehicle takes place in a flash of movement and it is only the victim and the driver of the vehicle who alone will be knowing what exactly happened. The so-called eye-witness impressions given by the other people would be their immediate recollection as to what happened according to them when the impact took place. In this regard, if one looks into the provision of Section 106 of the Evidence Act, person like driver of a offending vehicle has been called out for having spe- cial knowledge of the occurrence and in my view if he does not explain the same when he has been given a last opportunity while questioned under Section 313, Cr. P. C., after the prosecution has discharged its burden prima facie the Courts are entitled to draw adverse inference against such accused.
19. Hon'ble Delhi High Court in 2004 CRI. L. J. 731 Paras Nath, Petitioner v. State of Delhi, Respondent the facts were that the offending struck given by the appellant at the high speed struck against scooter from behind as a result of which rider of the two wheeler fell down and became unconscious. It was con- tended on behalf of the appellant that no evidence was brought on record by the prosecution to establish that the appellant was driving the offending vehicle in a rash and negligent manner and this being the essential ingredient of the offence in question the Metropolitan Magistrate erroneously hold the appellants guilty of the crime. Hon'ble H.C in para 7 held that " I am not in agreement with the submissions of the learned counsel for the appellant. Merely because the witnesses did not use the words rashness or negligent in his testimony and instead used the words high speed, cannot be taken that the appellant was not driving the vehicle in a rash or negligent man- ner, what is important is to find out if the driver of the offending vehicle was driv- ing in public place rashly and in negligent manner so as to endanger human life or to be likely to cause hurt or death to any other person. In the case in hand the appellant hit the scooterist from behind. It is not the case of the appellant that the scooterist had applied break all of a sudden and, therefore, the appellant was taken unaware which led the appellant's-truck hitting the scooter from behind. Act of negligence can be clearly attributed to the petitioner in this case as he is solely responsible for causing this accident without any fault of the scooterist. Rashness or negligence can be determined from the manner in which the accident had taken place."
20. The prosecution has accordingly proved that it was the accused who was driving the TSR Tempo rashly and negligently and hit against the scooter of PW-5 causing grievous injuries to PW-5 and accordingly accused is convicted for of- fence U/s 279/338 of IPC.
Announced in open court DIG VINAY SINGH
On 1.6.07 Metropolitan Magistrate
Rohini, Delhi