Delhi District Court
State vs . Lallu on 26 September, 2022
IN THE COURT OF SH. GAURAV SHARMA
METROPOLITAN MAGISTRATE-05,
CENTRAL, TIS HAZARI COURTS, DELHI
CIS No. 297135/2016
State Vs. Lallu
FIR No. 202/2010
PS : Darya Ganj
U/s. 279/304A/338 IPC
1) The date of commission of offence : 02.09.2010
2) The name of the complainant : ASI Shri Ram Sharma
3) The name & parentage of accused : Lallu
S/o Sh. Udal Prasad
4) Offence complained of : U/s 279/304A/338 IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Convicted
Date of Institution : 31.03.2012
Judgment reserved on : 08.09.2022
Judgment pronounced on : 26.09.2022
Digitally signed by
GAURAV
GAURAV SHARMA
Date: 2022.09.26
14:25:17 +05'30'
SHARMA Adobe Acrobat Reader
version:
2022.002.20212
FIR No. 202/2010 PS Darya Ganj State v Lallu Page 1 of 21
JUDGEMENT
26.09.2022
1. The accused is hereby Convicted for the offences he has been charged with.
2. With half baked arguments only, bordering scarecrow assumptions as it were, being made in his defence, the sight of the accused appears to be that of a woebegone, with the decision of the case known and internalised since before. Law catches up with the offender sooner than later, and in the present case as well, it is seen that the accused has finally been pinned down sufficiently by the state version so as to secure his conviction.
FACTS
3. Pithily put, the case of the prosecution is that on 02.09.2010 at about 12:20 AM, at Delhi Gate Traffic Signal, J.L.N. Marg, Darya Ganj, Delhi, within the jurisdiction of PS Darya Ganj, accused was driving a truck bearing no. MP16GA-0376 'offending vehicle' in rash and negligent manner so as to endanger human life and personal safety of others, and whilst driving as such, he hit against a scooter bearing no. DL3SM-9348 'victim vehicle' and caused grievous hurt to the victim Sofia. In addition to the same, the said collision is stated to have caused death of victim Sunny Garg as well. In view of the same, the accused has been charged with committing offences under Sections 279/304A/338 IPC.
4. After investigation, charge-sheet was filed. Copy of the same was supplied to the accused in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against him under Sections 279/304A/338 IPC on 17.04.2013, to which accused pleaded not guilty and claimed trial.
Digitally signed byGAURAV GAURAV SHARMA Date: 2022.09.26 14:25:59 +05'30' SHARMA Adobe Acrobat Reader version:
2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 2 of 21
5. In support of its version, prosecution has examined a total of twelve witnesses. PE was closed on 04.05.2022 and statement of accused Lallu was recorded u/s 281 read with Section 313 Cr.P.C on 06.08.2022, wherein he claimed to be innocent and denied the allegations against him.
Accused opted not to lead DE.
6. I have heard Ld. APP for State and Ld. Counsel for the accused as well. I have also perused the record carefully.
FINDINGS
7. In order to constitute an offence punishable under Section 279 IPC, the following ingredients must be made out:-
(i) there must be rash or negligent driving or riding;
ii) it must be on a public way; &
iii) the driving or riding must be in a manner so rash or negligent so as to endanger human life or to be likely to cause hurt or injury to any person other than the driver.
8. Similarly, to constitute an offence punishable under Section 304A IPC, it is necessary that the element of 'rash or negligent act' is established. In addition,
i) there must be death of the person in question;
ii) the accused must have caused such death; and
iii) the act of the accused must have been rash or negligent, though not amounting to culpable homicide.
Digitally signed by GAURAV GAURAV SHARMA Date: 2022.09.26 14:26:27 +05'30' SHARMA Adobe Acrobat Reader version: 2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 3 of 21
9. Section 338 IPC punishes grievous hurt caused to a person instead of death, in similar circumstances as above, with grievous hurt itself being defined u/s 320 IPC.
10.In Rathnashalvan v. State of Karnataka reported as (2007) 3 SCC 474, the Hon'ble Supreme Court has elaborated on the law surrounding cases of rash and negligent acts and distinguished between 'rashness' and 'negligence' in the following terms:-
"7. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.Digitally signed by
GAURAV Date:
GAURAV SHARMA 2022.09.26 14:26:49 +05'30' SHARMA Adobe Acrobat Reader version:
2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 4 of 21
9. The distinction has been very aptly pointed out by Holloway J.
in these words:
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The immutability arises from acting despite the consciousness (luxuria). Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection." (See Nidamarti Nagabhushanam, In re1, Mad HCR pp. 119-20.)"
11.From the exposition of law outlined hereinabove, it is apparent that to establish the offence either under Section 279 IPC or Section 304A IPC, the 'commission of a rash or negligent act' has to be proved, apart of course from proving the presence of the accused at the spot driving the offending vehicle in question. That is to say, the onus is on the prosecution to prove beyond reasonable doubt that the accused engaged himself in the commission of an act which could be called 'rash' or 'negligent'.
12.For the present case in question, it is seen that the allegations against the accused are that he, on the day of the incident in question, whilst driving a truck, the vehicle in question, in a rash or negligent manner, hit against a scooty, on which three persons were riding - one, the deceased, who was driving the scooty and died on the spot, PW3 Yogesh Batra, the pillion rider and friend of the deceased with PW2/Sofiya, who had taken lift from the deceased and PW3. It is therefore seen that for affixing culpability on the accused, prosecution case is highly dependent on the deposition of the injured eye witnesses PW2 and PW3, who were riding on the scooty whose accident had been caused by the offending vehicle, being driven in a rash or negligent manner by the accused. Such evidence of PW2 and Digitally signed by GAURAV GAURAV SHARMA Date: 2022.09.26 14:27:12 +05'30' SHARMA Adobe Acrobat Reader version:
2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 5 of 21 PW3 therefore, has to be read in context, keeping in mind the attending circumstances and the fact that they both deposed well after a period of 3- 4 years since the actual date of the accident. Moreover, evidence of the said witnesses, has to be read in conjunction with that of the other police witnesses who deposed in court. Slight incongruities in depositions of all such witnesses are bound to happen, and hence, they are to be looked at from the stand point of normal forgetfulness that time brings upon one's memory. Given the said background and before adverting to the testimonies of the prosecution witnesses, individually and collectively, it shall be useful to note what the Hon'ble SC has laid down recently in Shahaja @ Shahajan Ismail Mohd. Shaikh vs State Of Maharashtra 2022 (SC) 596 Cr. Appeal 739 OF 2017 decided on 14 July 2022.
Specifically as to the testimony of an eye witness, it was laid down in the said judgement by the Hon'ble Court as follows :
"27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I.While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.Digitally signed by
GAURAV Date:
GAURAV SHARMA 2022.09.26 14:27:35 +05'30' SHARMA Reader version:
Adobe Acrobat 2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 6 of 21 III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. 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.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. 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 witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.Digitally signed by
GAURAV GAURAV SHARMA Date: 2022.09.26 14:27:58 +05'30' SHARMA Adobe Acrobat Reader version:
2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 7 of 21 XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, Leela Ram v. State of Haryana, AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012]
28. To put it simply, in assessing the value of the evidence of the eye witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.
....................
30. In the aforesaid context, we may refer to a decision of this Court in the case of State of U.P. v. Anil Singh, AIR 1988 SC 1998, wherein in para 15, it is observed thus : "15. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear Digitally signed by GAURAV GAURAV SHARMA Date: 2022.09.26 14:28:21 +05'30' SHARMA Adobe Acrobat Reader version:
2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 8 of 21 of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other Both are public duties which the Judge has to perform."
13.Given the principles laid down as above governing the manner in which the evidence adduced on record is to be appreciated, we move now to the testimonies of both the eye witness PW2 and PW3, as testimony of PW1/Ramesh Kumar was formal in nature, him being the superdar of the victim vehicle in question who deposed essentially about him having got released the vehicle post accident. PW2/Sofia stated that on the night of the incident at around 12.30 AM, she was standing at the ITO bus stop when two boys came there on a scooty, from whom she took a lift to go to the LNJP hospital. The two boys were stated to be the deceased and PW3. It was further stated that when the three of them reached near the traffic intersection of Delhi Gate, the offending vehicle came from behind from the Rajghat side bearing no. MP-16GA-0376 and hit the scooty from behind, being driven at a very fast speed. The witness went on to add and graphically explain that offending vehicle was being driven in a rash and negligent manner and as a result of the accident, the driver of the scooty got crushed under the truck and the front wheel of the truck ran over her right foot as well. As per PW2, PW3-the pillion rider on the scooty fell on the other side of the road, but did not sustain much injury. PW2 emphasised that the driver of the victim vehicle died at the spot as a result of the accident and people gathered around the scene of the crime, whereafter police was called upon and thereafter, PCR van came and took GAURAV Digitally signed by GAURAV SHARMA Date: 2022.09.26 14:28:46 SHARMA +05'30' Adobe Acrobat Reader version: 2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 9 of 21 her to LNJP hospital. The witness also stated that she did not see the driver of the offending vehicle and could not identify him as she had become unconscious as a result of the accident. The witness identified the offending vehicle as well as the victim vehicle in question when photographs were shown to her. As is seen therefore, the witness testimony is well rounded. It clearly stipulates as to how and under what circumstances the accident took place. In her cross examination as well, the witness is seen to have remained sure footed. She explained that including her, a total of three persons were riding on the victim vehicle, i.e. the deceased and the pillion rider/PW3, with her in between them. Upon being suggested that she did not know the offending vehicle number and was told about the same by the police only, the witness explained with reason, and deposed that once the accident took place, she noted the number thereafter after she had fallen. The same does not appear to be outlandish at all and it cannot be said to be out of place that a person, who was injured, after having fallen on the road, whilst so lying, noted the number of the offending vehicle. Admittedly, the offending vehicle was seized from the spot only where the accident in question is said to have taken place. As such therefore, the version of the witness seems credible when she reasons that she noted the vehicle no. after the accident had been caused and she was lying on the road. The witness clearly stated in her cross examination that when she regained senses after the accident, she was already in the hospital and therefore, did not know what the police authorities did during the intervening period. She also stated that once she became conscious again after the accident, her statement was recorded by the police on the next day after she was operated at night at the hospital. Finally, the witness denied that she was deposing falsely as to the alleged accident as it had happened. It is observed therefore that the witness deposed in a clear and unambiguous manner. Her version Digitally signed by GAURAV Date:
GAURAV SHARMA 2022.09.26 14:29:16 +05'30' SHARMA Adobe Acrobat Reader version:
2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 10 of 21 precisely brought on record that the truck was travelling at a high speed and hit the victim vehicle in such a manner that the deceased was crushed at the spot, thereby implying in no uncertain terms that the offending vehicle was being driven in a rash and negligent manner. Moreover, her deposing to the effect that the accident took place at the intersection of the Delhi Gate and that too late at night at around 12.30 AM, goes on to show that the offending vehicle was being driven in a rash and negligent manner since at that time of the night and that too at road crossings, any vehicle is expected to observe caution as traffic may come from any side, which, whilst driving, must be guarded against. The accused clearly is seen to have acted to the contrary, as per the testimony of the witness, laying down the blame at his door squarely for having caused the accident as alleged. The testimony of PW2 therefore, clearly established the role of the accused as having not taken due care and caused the accident, killing the deceased and injuring PW2 in a grievous manner. As against such unambiguous testimony of the witness, nothing contradictory could be extracted out in her cross examination.
14.PW3/Yogesh Batra likewise, deposed coherently qua the material aspects of the case. He was the pillion rider on the victim vehicle on the day of the incident in question. He stated that, whilst he and the deceased were going to LNJP hospital via ITO, PW2 met them when they took a left turn from the traffic signal at Darya Ganj chowk. The witness deposed that they gave lift to PW2 and proceeded towards LNJP hospital, as they were going to meet one of the relatives of the deceased there. At about 12.30 AM, as per the witness, when they reached near Darya Ganj chowk towards LNJP side, the offending vehicle came from their back side in fast speed and hit their scooty due to which they fell down and the left side rear wheel of the truck ran over the deceased, killing him at the spot. The Digitally signed by GAURAV GAURAV SHARMA Date: 2022.09.26 14:29:37 +05'30' SHARMA Adobe Acrobat Reader version:
2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 11 of 21 witness further explained that the impact of the truck was as such that the offending vehicle was stopped by the accused after some distance. PW3 went on to further depose that PW2 also sustained injuries on her legs due to the accident in question and he himself, received simple injuries on his right leg and other parts of body. As per the witness, he then caught hold off the driver/accused with the help of public persons gathered there at the spot. Accused was correctly identified by the witness in court and PW3 re- emphasised that the accident took place due to the fault of the accused as he was driving the truck at fast speed, even at the chowk area. It was thereafter again reiterated by the witness that they moved about 10 meters from the place as a result of the accident, from where PW2 had taken lift from them. The witness correctly identified photographs of the vehicles as well. Evidently therefore, the testimony of PW3 is also seen to be precise as to accidental details and lays out quite vividly the manner in which the accident occurred. He also explained rather lucidly that the offending vehicle was being driven in a rash and negligent manner, in as much he stated that despite being at the chowk area, and that too at the time that it was, i.e. late at night, the vehicle was being driven at a fast speed, clearly indicating lack of due care taken by the accused. The rashness and negligence on part of the accused is also visible from the fact that the witness deposed that as a result of the accident, the victim vehicle was dragged quite a distance and the deceased died at the spot only. In his cross examination also, the witness version remained intact largely. Doubt was tried to be created in the witness version as to him having disappeared and reappeared from the scene of the incident in the immediate aftermath of the accident. To that, the witness conceded that he had left the spot initially, but only after he had already nabbed the accused from the spot. The witness was confronted with his previous version to the police during investigation wherein it was not clearly stated that he had caught the Digitally signed by GAURAV GAURAV SHARMA Date: 2022.09.26 14:30:02 +05'30' SHARMA Adobe Acrobat Reader version:
2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 12 of 21 accused or that he had seen the driver/accused driving the offending vehicle. The witness also agreed that the he had himself gone to police station a few days after the incident to give his statement and even on the day of the accident, he had taken the deceased to the hospital. PW3 denied suggestions that he was improving upon his version. It is true that such variance of the witness version qua his previous statement to the police does raise some doubt, but that is not something which can be said to dislodge the prosecution story in its entirety. This is so since PW2/Sofiya also stated that PW3 had not received serious injures as such as a result of the accident and she herself had fallen unconscious after the incident. If that be so, the version of the witness that he would have gotten up and apprehended the accused at the spot, along with other public persons who may have gathered there, doesn't seem to be entirely unbelievable. The fact that the witness is stated to have remained amiss from the scene of the crime initially after the accident is something that can be explained by the simple understanding that the shock of the accident can put the senses of any common person go into standstill for a while, and that the same would have happened with the witness, because of which he would have remained muted in the immediate aftermath of the accident. After a while however, having regained his senses, he would have noticed the crowd gathered and swung into action for apprehending the accused. All of this would have and could have taken different durations of time, each according to different persons, but as such, it is not germane to be dwelt upon in detail herein as the factum of the accident stands established. Even as to the claim of the witness that he had taken the deceased to the hospital, it is seen that though the medical records do not explicitly record the said fact, but equally, no where else has anything contrary been said or proved also. Only as to PW2 Sofiya it has been stated that she was taken to hospital by the PCR Van, but for the deceased, no like submission has Digitally signed by GAURAV Date:
GAURAV SHARMA 2022.09.26 14:30:23 +05'30' SHARMA Reader version:
Adobe Acrobat 2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 13 of 21 been averred / made or proved. Considering the totality of the version of PW3 therefore, it is seen that the only point of importance to come out from the discussion qua his deposition, is that despite his testimony being a little shaky as to how did he react in the immediate aftermath of the accident, but nevertheless, the factum of the accident having been well established, with the broad contours of it having been cogently proved on record, the testimonies of PW2 and PW3 corroborate each other. That is to say, it can be said, that despite being a bit topsy turvy at places, evidence of PW3 regardless had a ring of truth in terms of the judgement Shahaja @ Shahajan Ismail Mohd. Shaikh (supra) and did not run contrary to the state version. As a consequence of the same, it is seen that even the testimony of PW3 can be stated to have lent credence to the prosecution version, disentitling the accused to any sort of benefit of doubt.
15.As can be seen from above, testimonies of both eye witnesses PW2 and PW3 favoured the state version. Apart from a few rudimentary gaps, especially in the version of PW3, nothing substantial could be extracted out from therein, which could be said to have impeded the onwards march of the state case towards conviction of the accused. Moreover, both the witnesses, being injured witnesses themselves, enjoy greater level of reliability. This is in view of the law laid down by the Hon'ble SC in the case of Jarnail Singh and Others v. State of Punjab (2009) 9 SCC 719 wherein it was reiterated that the testimony of the injured witness will have a special evidentiary status. It was similarly laid down by the Hon'ble SC in Abdul Sayeed v. State of Madhya Pradesh (2010) 10 SCC 259 that testimonies of injured witnesses cannot be brushed aside lightly. In the present case, the fact that the said injured witnesses, at least PW2/Sofiya is proved to have received injuries, establishes her presence at the scene of occurrence. The evidence of such Digitally signed by GAURAV GAURAV SHARMA Date: 2022.09.26 14:30:51 +05'30' SHARMA Adobe Acrobat Reader version:
2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 14 of 21 a witness therefore cannot be rejected unless there are strong grounds for such rejection, which are not there in the present case clearly. In view of the same therefore, the testimonies of both PW2 and PW3 are held to be in sync.
16.PW4/Ravinder was the next witness to be examined. He did not support the prosecution story one bit and turned completely hostile. As per him, he was the cleaner of the offending vehicle in question and on the day of the accident, at about 02.00-03.00 AM, when he and the accused, whilst driving the offending vehicle reached at the place of the accident, their truck was stopped by the public present there, when they both saw the victim vehicle and two persons lying on the road in an accidental condition. As per the witness, despite not knowing as to what had actually transpired at the scene of the crime, offending vehicle and both him and the accused were taken to the police station. PW4 clearly denied that the accident was caused by the accused. At such testimony of the witness, Ld. APP sought permission to cross examine the witness, but even during such cross examination, the witness did not turn course and denied all the suggestions put to him regarding the contrary version that the witness had given during investigation to the police, as to the accused having caused the accident. It is no doubt true, that the testimony of PW4 did cast a dent in the prosecution version, but given the testimonies of injured eye witnesses PW2 and PW3, alongwith that of the other police witnesses, it is seen that such a dent was not something that permanently damaged the state case, to any irretrievable extent. With reliable testimonies of other witnesses on record, the testimony of PW4 can at best be stated to be an outlier, not supporting the case of the prosecution on one hand, but also, not clearly establishing the innocence of the accused also on the other hand, without being corroborated by any other witness on record.
Digitally signed byGAURAV GAURAV SHARMA Date: 2022.09.26 14:31:12 +05'30' SHARMA Adobe Acrobat Reader version:
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17.PW5/Puneet Garg and PW6/Radhey Lal were the witnesses who deposed as to identity of the deceased and were not cross examined. PW7/ASI Amrit Singh's testimony was also similarly formal who stated as to the factum of registration of the subject FIR. PW8/Manohar Lal Dhayani was the mechanical expert who examined both the victim vehicle and the offending one, and proved on record his reports Ex. PW8/A and Ex. PW8/B. Though no blodd stains were noted on either of the vehicles as per the witness, nonetheless he clearly stated in the mechanical inspection report of the offending vehicle that the same was found to contain fresh damage and scratchings under the front left side bumper corner, clearly suggesting to the accident that the vehicle had caused. Nothing contrary to the same could be proved by the accused and all suggestions put to the witness were denied. In view of such testimony of the expert and his report being proved on record, the damage done to the vehicle stands established which was ostensibly on account of the accident that was caused by the accused whilst driving the said vehicle. Short of any contrary version, the PW8 report steadies up the case against the accused even further, fair and square that the vehicle he was driving had hit the victim vehicle, thereby causing death of one and injuring another.
18.PW9/Ct. Lalit, PW11/ASI Shri Ram and PW12/IO SI Indraraj Singh deposed on similar lines as to the manner in which information of the accident was received and proceedings thereon were undertaken. It was stated that PW9 and PW11 had left for the spot initially where they found the two vehicles in an accidental state. One person was seen to be lying dead at the spot by the witnesses whilst another was informed to have been taken to the hospital. Thereafter, PW9 was stated to have remained at the spot whilst PW11 had visited hospital. After sometime, upon him returning back, procedure for registration of the subject FIR was put into Digitally signed by GAURAV GAURAV SHARMA Date: 2022.09.26 14:31:34 +05'30' SHARMA Adobe Acrobat Reader version:
2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 16 of 21 motion. PW12 specifically stated as to him having given direction for preparation of mechanical inspection reports of the vehicles in question. As per PW12, when he served notice u/a 133 MV Act to the owner of the offending vehicle, he produced the accused as the driver who was driving the truck at the time of the accident, who was thus arrested. All the witnesses correctly identified the vehicles in question together with the accused in court. During cross examination of all these police witnesses as above, it was contended by the Ld. Counsel of the accused that no public persons were made witnesses from the place of the accident and as such therefore, the prosecution version cannot be relied upon. The said contention however, is entirely out of place. This is so since it is no longer res integra that the testimony of police witnesses is on an equal footing with the testimony of any other witness, provided, it is clear, coherent and reliable. In this regard, it shall be gainful to note what has been laid down by the Hon'ble SC in State Government of NCT of Delhi Vs. Sunil and another (2001) 1 SCC 652 as follows :
"In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person and signed by such witnesses. It must be remembered that search is made to find out a thing or document which the searching officer has no prior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. It is a stark reality that Digitally signed by GAURAV GAURAV SHARMA Date: 2022.09.26 14:31:55 +05'30' SHARMA Adobe Acrobat Reader version:
2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 17 of 21 during searches the team which conducts search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter-skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But, recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commissioner, Andhra Pradesh, Hyderabad & anr. Vs. S. Sardar Ali & Ors. (1983 SC 1225). Following observations of Chinnappa Reddy J. can be used to support the said legal proposition: Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures.
In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub-section (4) and (5) of section 100 of the Criminal Procedure Code. In the case of a seizure [under the Motor Vehicles Act], there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of vehicle itself. Hence, it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any articles it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But, if no witness was present or if no person had agreed to affix his signature on the document, if is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The Court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. We feel that it is in archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post- independent years but it is time now to start placing at least initial trust on the actions and the Digitally signed by GAURAV GAURAV SHARMA Date: 2022.09.26 14:33:12 +05'30' SHARMA Adobe Acrobat Reader version:
2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 18 of 21 documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross- examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But, it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
19.Having noted as above therefore, it can be safely concluded that there is no rule of law which enjoins upon the Court not to rely upon the testimony of the police officials. The only requirement in doing so is to be even more cautious, circumspect and vigilant, before placing any reliance on their testimonies. In other words, their testimony is to be subjected to careful scrutiny, perhaps even more, than accorded to the testimony of any other public person. On the touchstone of these principles, this court is of the considered opinion that in the instant case, there is no ground to disbelieve the testimonies of the police personnel/witnesses qua the manner, place and time in which the accused was arrested and vehicles were seized from the place of the incident in question where the accident is supposed to have happened. Apart from that, no serious contradiction in any of the depositions of the police witnesses was shown to the court. Considering the same, testimonies of PW9, PW11 and PW12 are found to Digitally signed by GAURAV GAURAV SHARMA Date: 2022.09.26 SHARMA 14:33:33 +05'30' Adobe Acrobat Reader version: 2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 19 of 21 be in line with that of the other witnesses, inuring to the disadvantage of the accused.
20.Finally, PW10/Dr Rattan Singh was also examined who proved on record MLC of PW2/Sophia Ex. PW10/A clearly delineating the nature of grievous injuries suffered by her as a result of the accident. It was deposed that PW2 sustained disfigurement on her right side leg at distal end. It was also stated by the witness that there were abrasions and swelling on the left knee of PW2, abrasions at left elbow and lacerated wound of 10*3 cm, because of which all, PW2 was advised X Ray. In his cross examination, the witness clarified that he did not exactly remember as to who had presented the patient to him for examination, but at the same time added, that it was reflected in the MLC. Though the witness stated that the injuries sustained could be caused due to fall from a bike and he did not give the final result of the injury as grievous, but it is seen that the final opinion obtained has not been disputed. This is in view of the fact that vide statement of acused recorded under Section 294 Cr.P.C. on 29.04.2019, the accused admitted opinion regarding nature of injury as given by Dr. Anuj Singla being Ex. A2, MLC No. 130499 prepared by Dr. Arvind Ex. A3 and the post-mortem report 704/10 prepared by Dr. Garubadhri GV Ex. A4. If that is the case, there is no dispute qua the adjudged nature of injuries sustained and they do go in tandem with the version of the other witnesses. Further, fall from the bike in consequence of an accident can very well give rise to the kind of injury sustained by PW2, and the same also therefore, does not appear to be out of line with what actually happened with PW2.
Digitally signed byGAURAV GAURAV SHARMA Date: 2022.09.26 14:33:55 +05'30' SHARMA Adobe Acrobat Reader version:
2022.002.20212 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 20 of 21
21.All in all therefore, it is seen that from the testimonies of the witnesses on record, taken individually and collectively, the charges against the accused on the touchstone of proving guilt beyond reasonable doubt are indeed proved. Prosecution has been able to keep its version intact valiantly.
There are no gnawing gaps as such which have remain unexplained. The state version therefore is seen to have capably established an unbroken chain which can be said to link the accused to the crime as alleged. In such a scenario, accused Lallu is Convicted of charges u/s 279/304A/338 IPC.
22.Copy of he judgment be provided to the convict free of cost. Be heard on sentence separately.
Announced in the Open Court Digitally signed by on 26.09.2022 GAURAV GAURAV SHARMA Date: 2022.09.26 SHARMA 14:34:52 +05'30' Adobe Acrobat Reader version: 2022.002.20212 (GAURAV SHARMA) Metropolitan Magistrate-05 THC/Central/Delhi Judge Code : DL00855 FIR No. 202/2010 PS Darya Ganj State v Lallu Page 21 of 21