Delhi District Court
State vs Shishpal@ Modha on 3 April, 2025
IN THE COURT OF SH. ABHINAV AHLAWAT JUDICIAL
MAGISTRATE FIRST CLASS-09 (SOUTH-WEST) DWARKA
COURTS: DELHI
State Vs. : Shishpal @ Moda
FIR No : 19/2021
U/s : 279/338 IPC
P.S. : Jafarpur Kalan
1. CNR No. of the Case : DLSW020492102022
2. Date of commission of offence : 01.03.2021
3. Date of institution of the case : 27.08.2022
4. Name of the complainant : Wazir
5. Name of accused, parentage & : Shishpal @ Moda
address S/o Balwan
R/o VPO Issapur,
Jaffarpur Kalan, Delhi.
6. Offence complained of : 279/338 IPC
7. Plea of the accused : Pleaded not guilty
8. Final order : Convicted
9. Date of final order : 03.04.2025
Argued by:- Mr. Jay Aditya, Ld. APP for the State
Mr. Hitesh Kadiyan, Ld. Counsel for accused.
Digitally signed
by ABHINAV
ABHINAV AHLAWAT
Date:
FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 1 of 27 AHLAWAT 2025.04.03
15:46:06
+0530
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 01.03.2021 at about 06:30 PM, near Dhansa, Issapur Brahman Road, before Johdi, Issapur, New Delhi, accused was driving car bearing registration no.DL-3CE-8447 (hereinafter, "offending vehicle") in a rash and negligent manner so as to endanger human life and personal safety of others and hit against one motorcycle bearing registration no.DL-9SBC-6670, thereby causing grievous injuries to Wazir and accordingly committed the offences punishable under Sections 279/338 of IPC, for which FIR no.19/2021 was registered at the police station Jafarpur Kalan, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED PERSONS
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused person was filed. The Ld. Predecessor of this court took the cognizance against the accused person and summons were issued to the accused. On his appearance, a copy of the chargesheet was supplied to the accused in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused person, notice under Sections 279/338 of IPC was served upon the accused on 28.09.2022. The accused pleaded not guilty and claimed trial.
Digitally signed by ABHINAVABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 2 of 27 Date:
AHLAWAT 2025.04.03 15:46:13 +0530 PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW-1 Sonia PW-2 Wazir Singh PW-3 Retd. SI Rambhaj PW-4 ASI Jagdish Prasad PW-5 Dharmender Sehrawat DOCUMENTARY EVIDENCE Ex.PW1/A Notice u/S 133 MV Act Ex.PW1/B Seizure memo qua offending vehicle Ex.PW1/C Seizure memo qua documennts of offending vehicle Ex.PW1/D Documents of offending vehicle Ex.PW1/E Superdiginama qua offending vehicle Ex.PW1/F Photographs of offending vehicle Ex.PW2/A Statement of complainant Ex.PW2/B Seizure memo qua motorcycle Ex.PW2/C Superdiginama qua motorcycle Ex.PW2/D Photographs of motorcycle Ex.PW2/E Site plan Ex.PW3/A Statement of Rahul Ex.PW3/B Tehrir Ex.PW3/C Seizure memo qua driving licence of accused Ex.PW3/D Arrest memo Ex.PW3/E Personal search memo Ex.PW3/F Bail bonds of accused Ex.PW3/G Mechanical inpsection report of offending car Ex.PW3/H Mechanical inpsection report of motorcycle ADMITTED DOCUMENTS Ex.A1 FIR no.19/2021 alongwith certificate u/S 65B of IEA Ex.A2 DD no.51a dated 16.03.2021 Ex.A3 GD no.57A dated 01.03.2021 Ex.A4 MLC no.849 dated 01.03.2021 Ex.A5 Certified copy of medical record of PGI Rohtak Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 3 of 27 Date:
AHLAWAT 2025.04.03 15:46:17 +0530
4. To prove its case, prosecution examined the following witnesses, the same are as follows.
PW1 Sonia deposed that she was the owner of the offending vehicle/car make Chevrolet Beat i.e bearing no. DL-3CCE-8447 and notice U/s 133 MV Act was received by her Ex.PW1/A. She stated that on the date of the incident, the said vehicle was being driven by her husband Shishpal and on 17.03.2021, the said vehicle was seized by the police vide seizure memo Ex.PW1/B and ownership documents along with the pollution certificate and photocopy of the insurance policy of the offending vehicle was also seized by the IO vide seizure memo Ex.PW1/C. She identified the said documents as Ex.PW1/D (colly). She stated that she had got her above said vehicle released on superdari vide order dated 13.04.2021 and she proved superdiginama as Ex.PW1/E. She identified the offending vehicle/car through photographs Ex.PW1/F (colly). In the cross-examination, she stated that she was not the eye witness of the incident.
5. PW2 Wazir deposed that on 01.03.2021 at about 06:20 pm, he was coming back to his house at Village Issapur from Dhansa Border on his motorcycle make HF-Deluxe bearing registration no.DL-9SBC-6670. When he reached at Brahman wala road, he saw that one vehicle/car make Beat bearing registration no.DL- 3CE-8447 which was coming from village Issapur side i.e. opposite side being driven by its driver at a fast pace (about 100kmph) and in a rash manner. He stated that he saw that the said car was being driven by accused Shishpal @ Modha, who hit his motorcycle by his car and thereafter, hit the car in an electric pole and he along with his motorcycle fell in the fields by the Digitally signed by ABHINAV ABHINAV AHLAWAT Page 4 of 27 Date:
FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda AHLAWAT 2025.04.03 15:46:22 +0530 road side. He stated that he called his son telephonically and told him about the accident by using the mobile phone of public persons/ toll employees and his son came to the spot. Thereafter, the accused came out of his car and took him in his car to the hospital but the car stopped operating near village Kadipur. He stated that they called his brother namely Anup who brought his car and took him to RTRM hospital, J.P. Kalan where he was medically examined and thereafter, he was referred to Higher Centre. Later on, he went to Trauma Centre, PGI Rohtak. He stated that on 07.03.2021, he got discharged from PGI Rohtak and he came back to his home. He stated that accused assured him that he would pay for his medical expenses and that is why he had not lodged any complaint against the accused but later on, the accused refused to pay for his medical expenses and thereafter, he got his statement recorded by the police Ex.PW2/A. He stated that police seized his motorcycle vide seizure memo Ex.PW2/B and he got his motorcycle released on superdari vide order dated 18.04.2022 on furnishing superdiginama Ex.PW2/C. The witness correctly identified the accused present in the court, photographs of motorcycle Ex.PW2/D (colly) and photographs of offending vehicle. As PW2 did not support the case of prosecution on certain facts, the Ld. APP was granted permission to put him questions in the nature of cross-examination, wherein the witness stated that IO had prepared the site plan of the spot of incident at his instance Ex.PW2/E. In the cross-examination, he stated that he along with my motorcycle fell into the fields by the road side about 2 to 3 meters from the road. He stated that he knew the accused prior to the accident as they both from the same village and he had cordial relation with the accused prior to the accident in question. He stated that his son Rahul came to the Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 5 of 27 Date:
AHLAWAT 2025.04.03 15:46:27 +0530 spot within 10 to 15 minutes of his telephonic call and when his son came to the spot he had not boarded the vehicle of the accused. He stated that no police officials met him prior to 16.03.2021 and only some phone calls of police officials received by him but he told them that he was not fit and did not want to give his statement at that time. He stated that prior to 16.03.2021 his son Rahul had not told the police officials in any written statement that accident in question had happened due to the rash and negligent driving of accused Shishpal @ Modha.
6. PW3 Retd. SI Rambhaj deposed that on 01.03.2021, he received DD no. 57A regarding MLC No. 849/21 and thereafter, he left the PS along with HC Ompal and they reached at RTRM hospital. He stated that after reaching the hospital, he came to know that injured namely Wazir admitted in the hospital and thereafter doctors of RTRM hospital referred patient to Higher Centre. He stated that on 02.03.2021, son of complainant namely Rahul came at PS and he recorded his statement Ex.PW3/A and during investigation, on 16.03.2021 he reached at the house of the complainant along with HC Ompal, where he recorded statement of complainant, on the basis of which, he prepared tehrir Ex.PW3/B. He stated that he reached at the PS and handed over tehrir to DO for registration of FIR and after registration of FIR, DO handed over to him copy of FIR and original tehrir. He stated that he also prepared site plan at the instance of complainant on 16.03.2021 and also served notice U/s 133 MV Act to the owner of the car bearing registration no.DL-3CCE- 8447 and owner of the above said car namely Ms. Sonia gave reply of the above said notice. Thereafter, owner of the offending car Sonia produced with above said car and he seized the above Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 6 of 27 AHLAWAT Date:
2025.04.03 15:46:32 +0530 said car. He stated that during investigation, he also seized the motorcycle bearing registration no.DL-9SBC-6670 from the complainant and also seized DL of the accused vide seizure memo Ex.PW3/C. He stated that he also seized original RC of the offending car, original pollution certificate of the offending car and photocopy of insurance policy of the offending car, arrested the accused from his house vide arrest memo Ex.PW3/D, conducted his personal search memo vide personal search memo Ex.PW3/E and released the accused after furnishing the bail bond Ex.PW3/F. He stated that he also obtained medical documents of the injured from the hospital and deposited the case property in malkhana. He stated that he verified the seized documents from the concerned authority and after taking instructions from him, Dharmender Sehrawat conducted mechanical inspection of both the vehicle and he obtained mechanical inspection report of both the vehicle Ex.PW3/G and Ex.PW3/H. He stated that he also recorded statement of witnesses U/s 161 Cr.PC. and thereafter, he was transferred to PS Uttam Nagar and he deposit the case file to MHC (M). The witness correctly identified the accused present in the court and photographs of the offending car/vehicle. In the cross-examination, he stated that on 01.03.2021, he received DD no.57A at about 08:15 pm. He stated that no eye witness was found at the hospital or at the spot and no CCTV camera was installed at the spot. He stated that he did not click the photographs of the spot and the offending vehicle and when he reached at the spot no offending vehicle was found at the spot. He stated that no public persons or eye witness found at the spot or in the hospital and no evidence found against the accused that at the time of accident he was driving the offending car in rash and negligent manner. He stated that he did not collect DL and Digitally signed by ABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 7 of 27 ABHINAV AHLAWAT Date:
2025.04.03 15:46:36 +0530 the documents of the motorcycle of the complainant from the complainant Wazir.
7. PW4 ASI Jagdish Prasad deposed regarding further investigation in the present matter. He stated that he went to PGI Rohtak from where he collected the treatment document of injured Wazir and thereafter, he deposited the same to RTRM hospital. He stated that he obtained the final result of injured Wazir from RTRM hospital and he also added Section 338 IPC in place of 337 IPC as injury found grievous. He stated that after completion of investigation, he submitted the charge-sheet before the concerned court. In the cross-examination, he stated that he did not record statement of doctors of Rohtak PGI who prepared the documents of injured Wazir and he did not record the statement of any witness during investigation.
8. PW5 Dharmender Sehrawat proved mechanical inspection report of Chevrolet Beat (car) bearing no.DL-3CCE-8447 and HF Deluxe (bike) bearing no.DL-9SBC-6670. In the cross- examination, he stated that he conducted mechanical inspection of both the vehicles at PS and he was not the eye-witness to the accident. He stated that IO did not serve any notice to him regarding mechanical inspection of both the vehicles and he telephonically requested him regarding the same.
9. On account of admission of accused u/s 294 Cr.P.C, remaining witnesses in the prosecution list were dropped and the formal proof of the documents sought to be proved by them was dispensed with. No other PW was left to be examined; hence, PE was closed.
Digitally signed by ABHINAV AHLAWATABHINAV FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 8 of 27 AHLAWAT Date:
2025.04.03 15:46:41 +0530 STATEMENT OF THE ACCUSED AND DEFENCE EVIDENCE
10. Thereafter, before the start of defence evidence in order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused person was recorded on 24.01.2024 without oath under section 281 r/w 313 CrPC, wherein he has stated that he is innocent and has falsely been implicated in the present case.He further stated that he had helped the complainant while he was lying on the road by taking him to RTRM hospital for treatment. Accused further stated that injured was already lying on the road when he reached at the spot with his car. He further stated that he wanted to lead defence evidence.
11. To prove its case, accused examined the following witness in his defence which are as follows.
ORAL EVIDENCE
DW-1 Ravinder
12. DW1 Ravinder deposed that on 01.03.2021 at about 06:30 pm, he was present at his field. He saw that one person was lying on the road. Thereafter, Shishpal came at the place where the abovesaid person was lying in his car. Thereafter, Shishpal shifted the abovesaid person to hospital. In the cross-examination, he stated that he and accused Shishpal belong to the same village and accused was his neighbor and he had good relations with him and his family members. Police did not record his statement. He did not make any complaint against the IO of the present case Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 9 of 27 AHLAWAT Date:
2025.04.03 15:46:45 +0530 regarding the point that he was the eye-witness of the incident and IO did not record his statement.
FINAL ARGUMENTS
13. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
14. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
15. Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the identity of the accused being the driver of the offending vehicle is not established and prosecution has failed to discharge the burden cast upon it . As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE
16. Section 279 IPC proscribes the driving of vehicle on a public way in such a rash or negligent manner so as to endanger human life Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 10 of 27 Date:
AHLAWAT 2025.04.03 15:46:50 +0530 or likely to cause hurt or injury to any person. Section 338 IPC prescribes punishment for causing grievous hurt to any person by such rash or negligent act.
17. The position of law with respect to offence u/s 279 IPC is discussed in the case of case of Abdul Subhan Vs. State (NCT of Delhi) 133(2006) DLT 562, wherein it was held that;
"In Badri Prasad (supra) the essential ingredients of Section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As observed in Badri Prasad (supra), to establish the offence either under Section 279 or Section 304A, the commission of a rash and negligent act has to be proved".
Further, what would constitute rash and negligent act has been described by the Hon'ble Supreme Court in the matter of Mohd. Aynuddin @ Miyan Vs. State of An- dra Pradesh decided on 28.07.2000, in the following words:-
"A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with reckless- ness and with indifference as to the consequences.
Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against in- jury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
18. Besides, the ingredients mentioned above, the identity of the accused as driver of the offending vehicle must also be established separately by the prosecution in order to establish the guilt of the accused.
It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 11 of 27 AHLAWAT Date:
2025.04.03 15:46:54 +0530 basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal.
APPRECIATION OF EVIDENCE
19. In order to prove the case against the accused, the prosecution was under the obligation to prove the following for establishing the case against the accused person:
a. Identity of the accused being the driver of the offending vehicle. b. That the alleged incident is the result of rash and negligent driving of the accused at a public place which caused grievous injury to the injured PW2.
RE: IDENTITY OF THE ACCUSED:
20. Material witness to prove the identity of accused is only injured PW2 only who is the injured/ victim. PW2 stated that on the date of incident at about 06:20 pm, when he was going back to his house in village Issapur on his motorcycle and when he reached at Brahman Wala Road, he saw one car make Beat bearing registration no.DL-3CE-8447 coming from the side of Village Issapur at a fast pace being driven by accused Shishpal which hit his motorcycle and thereafter one electric pole. PW2 injured further stated that he fell in the fields alongwith the motorcycle by the road side and he used mobile phone of a public person/toll employee to call his son informing him about the accident. PW2 further stated that the accused came out of his car and took him in his car for proceedings towards the hospital but the car of accused stopped operating near village Kadipur. PW2 further Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 12 of 27 Date:
AHLAWAT 2025.04.03 15:46:59 +0530 stated that he thereafter called his brother namely Anoop who brought his car whereafter they went to RTRM hospital from where he was referred to higher centre PGI Rohtak. PW2 further stated that accused had assured him for paying all his medical expenses and for the same reason he had not lodged any complaint against the acused and when later on, accused refused to pay for his medical expenses, he got statement Ex.PW2/A recorded on 16.03.2021 bearing his left thumb impression at point A.
21. As PW2 clearly identified the accused to be the driver of offending vehicle who further admitted in his cross-examination that he knew the accused prior to the accident as he belonged to his village only. PW2 further stated in his cross-examination that after he had called his son Rahul to the spot and within 10-15 minutes his son reached there.
22. Further, in the statement of accused recorded under Section 313 Cr. PC, accused stated that injured victim was already lying on the road when he reached at the spot in his car and that in fact he had helped the complainant/victim PW2 by taking him to RTRM Hospital. Accused further examined DW1 in his defence evidence, who stated that he saw injured lying on the road whereafter the accused came at the spot and took the injured in his car to the hospital. Although DW1 stated in his cross- examination that he was not the witness of the incident and that he belonged to the same village as that of accused.
The only defence of the accused is that he took the injured to the hospital and for the same reason he was falsely implicated in the present case. However, as stated by accused himself he Digitally signed by ABHINAV AHLAWAT ABHINAV Date:
FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 13 of 27 AHLAWAT 2025.04.03 15:47:04 +0530 took the victim to the hospital in his car thus, it stands proved that accused was the driver of the offending vehicle in which injured was taken to the hospital and as such accused is not denying either his presence or his vehicle's presence at the spot.
RE: ALLEGED ACCIDENT BEING THE RESULT OF RASH AND NEGLIGENT DRIVING OF THE ACCUSED AT A PUBLIC PLACE.
23. For establishing the rash and negligent act of driving the offending vehicle by the accused, the main testimony is again of witness PW2 only as the other witnesses are not the witnesses of the incident rather being part of the investigation which was conducted after the incident. It has come in the statement of PW2 that on 01.03.2021 at about 06:20 pm, when he was going back to his house in village Issapur on his motorcycle and when he reached at Brahman Wala Road, he saw one car make Beat bearing registration no.DL-3CE-8447 coming from the side of Village Issapur at a fast pace being driven by accused Shishpal which hit his motorcycle and thereafter one electric pole.
24. Here, it is relevant to highlight that it was held in Niranjan Singh vs. The State (Delhi Administration) 1977 Cri LJ 333, held that 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 or proper care and precaution to guard against injury either to the public Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 14 of 27 Date:
AHLAWAT 2025.04.03 15:47:09 +0530 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.
25. Thus, the main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed of the offending vehicle but deliberate disregard to the obligation of its driver to drive with due care and attention and taking a risk indifference as to the harmful consequences resulting from it. In a case of this nature, the test is whether the prosecution has proved that :
(i) the accused was driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or doing substantial damage to the property;
(ii) in driving the vehicle in that manner, the accused did so without having given any thought to the possibility of there being any such risk or, having recognized that there was some risk involved, had nonetheless gone on to take it; and
(iii) the rash or negligent act of the accused was the proximate cause of the injuries to the injured person.
26. The ocular testimony of the prime witness PW2 finds corroboration from the MLC of injured Ex.A4 wherein the injured was admitted with alleged history of road accident with injury to right forarm and right leg and foot whereafter the injured was referred to higher centre for further treatement and management due to non-availability of Ortho Surgeon at RTRM Hospital. Furthermore, the opinion of the doctor sought on 10.01.2022 stated that injuries sustained by the injured are grievous in nature. The MLC is already admitted by the accused person. The important point which needs to be highlighted here is Digitally signed by ABHINAV ABHINAV AHLAWAT AHLAWAT Date:
2025.04.03 FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 15 of 27 15:47:13 +0530 that as per the MLC Ex.A4 of injured PW2 where it is mentioned he was brought to the hospital by his son Rahul.
27. Furthermore, it is relevant to mention that DD no.57A dated 01.03.2021 time 08:17 pm Ex.A3 which records that injured being admitted to the RTRM hospital by his son namely Rahul and the same information was provided from RTRM Hospital.
Further, PW3 Retd. SI Rambhaj stated in his testimony that upon receiving DD no.57A Ex.A3, he reached at the RTRM hospital where he came to know that the patient was referred to higher centre. PW3 further stated that on 02.03.2021, that is on the next date of the incident, son of complainant Rahul came at the PS thereafter he recorded his statement Ex.PW3/A. Therefore, the version of injured PW2 finds corroboration not only from the MLC Ex. A4 but also from the reporting of the matter to the police as per DD entry no.57A.
28. Ld. defence counsel has vehemently argued that accused has been falsely implicated by the injured and that in fact accused had helped the injured after he found him by the road side and that there are major contradictions and discrepancies in the investigation and thereby the testimony of injured witness cannot be relied and accused is entitled to benefit of doubt.
29. At this stage, it is relevant to mention the matter as decided by Hon'ble Apex Court in case of Balu Sudamkhalde and another Vs. The State of Maharashtra Crl. Appeal No. 1910 of 2010 decided on 29.03.2023, laid down the principles for the evaluation of the testimony of injured eye witness, where it was observed as under: -
Digitally signed by ABHINAVABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 16 of 27 Date:
AHLAWAT 2025.04.03 15:47:18 +0530 "26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind.
The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
27. 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, 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, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put 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. The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 17 of 27 Date:
AHLAWAT 2025.04.03 15:47:23 +0530 witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness/ eye witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
31. In the present case, it is evident that neither the son of victim namely Rahul who was called by the injured at the spot after incident has been cited as a witness despite the fact that his statement Ex.PW3/A was recorded by IO PW3 SI Rambhaj. Further, the other person namely Anoop who was subsequently called by injured after the car of the accused broke down for taking him to hospital was also not joined by the IO in the investigation in the present case. Both Rahul and Anoop would have shed more light regarding the circumstances under which the injured was taken to the hospital, however, for reasons best known to IO both the said persons were not joined in the investigation.
32. It is profitable to mention the judgment of Paras Yadav and others Vs. State of Bihar, AIR 1999 SC 644, 1999 AIR SCW 296 wherein it was held that a defective investigation is not always fatal to the case of prosecution if the ocular testimony is found credible and cogent. While in such a case, the court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version. It is the settled law that if victim's testimony is consistent, truthful and corroborated by other evidences, it can outweigh investigative short comings.
Digitally signed by ABHINAVABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 18 of 27 AHLAWAT Date:
2025.04.03 15:47:29 +0530
33. In addition to the above, even the investigation in the present matter appears to have been conducted in a callous and lackadaisical manner. First and foremost, the site plan seems to have been prepared by the IO in a very perfunctory manner, without disclosing the actual state of affairs as seen by him at the accidental spot. Nowhere does the site plan Ex.PW2/E shows the directions from which the offending vehicle was coming nor the exact location where the offending vehicle and the injured motorcycle were found. Instead, Mark A on the site plan has been depicted as the place where the injured was found after teh incident. Although the site plan bears the signature of injured PW2 but the site plan does not mention either the presence of any electic pole nor actual condition of the road which could have further shed light on the spot of incident.
34. At this stage it is further pertinent to state in here that Hon'ble High Court of Delhi in Abdul Subhan vs State (NCT of Delhi) 133 (2006) DLT 562 had laid down guidelines with regard to the investigation to be conducted in the offence of accident:
13.1. In most cases I find that the site plans are not produced. Even the site plan that is produced is of a very unsatisfactory nature. It is, therefore, imperative that the investigating officer should be provided with maps of the roads drawn to scale so that accurate site plans can be produced in evidence for the appreciation of courts. The exact point of impact as well as tyre skid marks and the point at which the vehicles come to rest after the collision should be demarcated clearly. The observations with regard to the length of the tyre skid marks of the vehicles involved in the impact go a long way in indicating the speeds at which the vehicles were traveling. This would enable the courts to examine the evidence in a much more objective manner and the courts would not be faced with vague and subjective expressions such as high speed". 13.2. The mechanical inspection reports that are prepared are also, I find, in a majority of cases, of a very superficial and cursory nature. The inspection ought to be carried out by qualified personnel who are able to indicate in their reports the exact physical conditions of the vehicles. They should be able to point Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 19 of 27 AHLAWAT Date:
2025.04.03 15:47:34 +0530 out with exactitude the damage suffered by the vehicles as a result of the impact. The mechanical inspection report should indicate all the telltale signs of the collision such as the paint of one vehicle rubbing off on the other. It should also indicate as to whether the vehicles were mechanically sound or not prior to the impact so as to enable the court to arrive at a conclusion as to whether the collision took place due to human rashness or negligence or mechanical failure beyond human control. 13.3. As a rule, photographs ought to be taken not only of the vehicles involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerned by courts.
13.4. The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. 13.5. Furthermore, the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case. 13.6. The drivers of the vehicle involved must also be subjected to tests to reveal whether they had consumed any intoxicants. 13.7. Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because, no criminal court would (and ought not to) convict any person merely on the basis of conjectures, assumptions, probabilities. All elements of subjectivity need to be eliminated and the investigation should be such that, when a charge sheet is filed, the court is presented with a case which when taken objectively would lead to the inescapable conclusion that a conviction is maintainable.
19. The site plan so placed on record is neither scaled site plan nor is proved by the prosecution. Furthermore, no photographs of the surrounding sites has been taken and placed on record by IO. As such the prosecution has failed to prove beyond reasonable doubt that alleged accident took place due to rash or negligent driving of accused."
35. Therefore, it is clear that the site plan is not prepared as per the guidelines and it is nowhere highlighting the correct state of affairs of the accident in question. Neither the site was inspected for any blood marks or skid marks nor any photographs of the spot and vehicles were taken of the spot. The only photograph Ex.PW1/A (colly) are the photographs of the offending vehicle Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 20 of 27 AHLAWAT Date:
2025.04.03 15:47:39 +0530 which were taken at the time of superdari proceedings. Further, it is pertinent to state here that as per mechanical inspection report of offending vehicle bearing no.DL-3CCE-8447 which is Ex.PW3/G, the following damages were found which are as follows:
1. Fresh front right head light damaged.
2. Fresh front right indicator damaged.
3. Fresh front right wheel fender damaged with high dent and bent.
4. Fresh front right RVM damaged.
5. Fresh front minor dent on engine bonnet.
6. Fresh front right door wizer damaged.
Similarly, following damages were found on the victim's motorcycle bearing no.DL-9SBC-6670 as per mechanical inpsection report Ex.PW3/H which are as follows:
1. Fresh front wheel mud guard broken.
2. Fresh front right side leg guard damaged.
3. Fresh right side chasis pipe broken.
4. Fresh front right side battery box cover damaged.
5. Fresh right side silencer dent and bent.
6. Fresh right side shoker bent.
7. Fresh rear brake assembly total damaged.
8. Fresh right side handle bent.
36. Therefore, it is clear that both the vehicles had sustained damages with the motorcycle of the victim sustaining damages on the front side while the offending vehicle sustained considerable damage on the front right side. Although it is the version of accused that he had simply taken the injured person to hospital as he found him lying on the road, however, no reason or explanation has been provided by accused as to how the offending vehicle of which his wife PW1 Sonia is the owner sustained such damages.
As PW1 has stated in her testimony that on the date of incident, the said vehicle was driven by her husband Shishpal as she had submitted her reply to the notice u/S 133 MV Act Ex.PW1/A. Digitally signed by ABHINAV FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 21 of 27 ABHINAV AHLAWAT AHLAWAT Date:
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37. In the instant case as stated above, IO has not cited both Rahul, son of victim and Anoop as witnesses and has also not conducted thorough investigation as highlighted in the preceding paragraph in respect of the site plan in not conducting thorough investigation of the spot of incident. Further, although accused has pleaded that he has been falsely implicated in the present case by the victim, however, accused has not stated the reasons for the same as there appears to be no inimical relations between the accused and victim as they both belonged to the same village.
It is a settled law that witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and usually means the witness has caused, such as enmity against accused, to wish to implicate him falsely. It is true that due to previous enmity, there is tendency to drag an innocent person against whom a witness has a grudge but in the absence of evidence or material to show such inimical relations no natural presumptions can be taken for false implications. There is no reason to doubt the testimony of injured PW2 who has stated that cause of accident by the vehicle driven by accused which finds corroboration from the reporting of incident by the hospital to the police and upon perusal of the medical document of injured.
38. After careful perusal of the testimonies as mentioned above, it is crystal clear that accused was driving his vehicle in a manner which would clearly amount to rash driving. Rashness has been established against the accused beyond reasonable doubt. It is also established that the accused was negligent for not taking the reasonable care towards his surroundings. The fact the accused was driving the offending car in such a manner that he failed to Digitally signed by ABHINAV ABHINAV AHLAWAT AHLAWAT Date:
FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 22 of 27 2025.04.03 15:47:50 +0530 notice a motorcycle driven by the injured PW2 causing injuries to him.
39. Negligent act means failure to take proper care and precautions jeopardizing the lives of other persons. It means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affair would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one, it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court.
40. It is amply clear from the above, that the rash or negligent driving has to be examined in the light of the facts and circumstances of the given case. In fact, it is incapable of being construed or seen in isolation, it must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. Likewise in the instant case, keeping in view the testimony of PW2, it is crystal clear that the accused was driving the offending vehicle in rash or negligent manner. PW2 has deposed empathetically on oath that accused had hit his motorcycle which he was speeding his car. PW2 even stated that accused had assured him of his medical expenses and for the same reason he had not initially moved the complaint against the accused person.
Digitally signed by ABHINAV AHLAWATABHINAV FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 23 of 27 AHLAWAT Date:
2025.04.03 15:47:55 +0530 Accused has not been able to come up with any reasonable explanation of the same. The fact that injured sustained grievous injuries due to rash and negligent driving of accused is made out beyond all reasonable doubts. The testimony of injured witness inspires confidence despite various short comings in the investigation conducted by the IO. Reliance can be placed on the judgment of the Hon'ble Supreme Court in Amar Singh Versus The State (NCT of Delhi), Criminal Appeal No. 335 of 2015, wherein it was held that, "As a general rule the Court can and may act on the testimony of single eye witness provided, he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise."
41. Accused only examined DW1 in his defence although as discussed above, his presence only was not established satisfactorily. Furthermore, it is quite unbelievable that a person helping an injured person that is a good samaritan would be accused of causing an accident given their intention to help the injured. Also, taking into account the fact that accused belongs to the same village of victim, it is again highly unlikely that he would be falsely accused by injured of causing the accident. Plea of accused does not inspire confidence in view of the ample evidence available on record. Moreover, he is not alleging any enmity, ill-will or grudge against any of the prosecution witness especially PW2, for which they will falsely implicate him in this case.
Digitally signed by ABHINAVABHINAV AHLAWAT FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 24 of 27 Date:
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42. In these circumstances, based on the testimony of PW2, which is not only reliable but also inspires confidence, rash and negligent act of driving of the offending vehicle by the accused has been proved beyond all reasonable doubts.
43. As far as the contention of the counsel for accused that there are certain discrepancies in the testimony of PWs, here it needs to be highlighted that that minor discrepancies on trivial matter not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hyper-technical approach. It has been held in Thoti Manoher Vs. State of A.P. (2012) 7, by the Hon'ble Supreme Court that, while appreciating the evidence, Court should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored. Giving undue importance to them would amount to adopting a hyper-technical approach.
44. Based upon the above discussion, it is clear that ocular evidence of injured witness finds corroboration from medical evidence of the injured. There are no reasons to doubt the testimony of injured PW2. Accused is not alleging any enemy ill will or grudge against PW2. And for the same reason, the testimony of PW2 cannot be doubted irrespective of the fact that the other pieces of other evidences collected during the course of investigation are shoddy. The court does not countenance with the counsel for accused as not every defect in conducting investigation by IO is necessarily fatal to prosecution case if such irregularity is not material in light of there being other cogent evidence on record. Else, criminal trial would be relegated to IO ruling the roost. Reliance is placed upon the judgment of Hon'ble Digitally signed by ABHINAV FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 25 of 27 ABHINAV AHLAWAT Date:
AHLAWAT 2025.04.03 15:48:06 +0530 Supreme Court in the case of Karnel Singh Vs. State of M.P. 1995(5) SCC 518 :
"5. Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation, the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. Any investigating officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements the statements of the two witnesses and would have drawn up a proper seizure memo in regard to the `Chaddi'. That is the reason why we have said that the investigation was slip shod and defective.
We must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer. To acquit solely on that ground would be adding insult to injury."
45. Also as held in Nirmal Singh and Another vs. State of Bihar AIR 2005 SC 1265: 2004 AIR SCW 6717: 2005 Crl. L.J. 672: 2005 (9) SCC725: 2005 SCC(Cri) 1461, cogent evidence of eye witnesses cannot be rejected on account of the failure of the investigating officer to send blood-stained cloth (wrapped around the wound) for chemical examination. Also as held in Paramjit Singh alias Mithu Singh vs. State of Punjab Through Secretary (Home) AIR 2008 SC 441: 2007 (13) SCC530: Mere defective investigation cannot vitiate the trial.
CONCLUSION
46. The upshot of the foregoing discussion is that the prosecution evidence, both oral and documentary, including the surrounding circumstances leads to only conclusion that the incident could not have happened but for the fault of the accused only. The Digitally signed by ABHINAV FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 26 of 27 ABHINAV AHLAWAT AHLAWAT Date:
2025.04.03 15:48:12 +0530 prosecution has been able to establish beyond reasonable doubts all the basic ingredients of the offence of section 279/338 IPC.
47. Thus, it is held that that accused was driving the offending vehicle in a rash and negligent manner as to endanger human life and that because of such act of accused, he caused grievous injury upon the injured. Resultantly, the accused Shishpal @ Moda S/o Balwan Singh is hereby convicted of the offences punishable under Sections 279/338 of The Indian Penal Code, 1860.
48. Let the convict be heard separately on the quantum of sentence. Copy of this judgment be given free of cost to the convict.
Announced in the open court Digitally signed by ABHINAV on 03.04.2025 in the presence AHLAWAT ABHINAV Date:
AHLAWAT 2025.04.03 of the accused.
15:48:18 +0530 (Abhinav Ahlawat) Judicial Magistrate First Class-09, Dwarka, Delhi/03.04.2025 Note:- This judgment contains 27 pages and each page has been Digitally signed signed by me. ABHINAV by ABHINAV AHLAWAT Date: AHLAWAT 2025.04.03 15:48:24 +0530 (Abhinav Ahlawat) Judicial Magistrate First Class-09, Dwarka, Delhi/03.04.2025 FIR No.19/2021, PS Jafarpur Kalan State vs. Shishpal @ Moda Page 27 of 27