Delhi District Court
State vs Deepak on 14 October, 2023
THE COURT OF SH. SUNIL KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE-09, WEST
TIS HAZARI COURTS, DELHI
CNR No :DLWT01-007461-2016
SC No :58112/2016
FIR No :1149/2015
Police Station :Punjabi Bagh
U/Sec :304-II/354 IPC r/w. Section 185 M.V. Act
STATE
(Govt. of NCT of Delhi)
Through : Sh. Brijesh Kumar, Ld. Addl.
PP with Sh. Deepak Sharma,
Ld. Counsel Advocate for the
complainant.
VERSUS
DEEPAK
S/O SH. KHUB RAM
R/o H. No. 33/17
Punjabi Bagh Extension, Delhi.
Through : Sh. Harish Bajaj and Sh.
Akshay Bhardwaj. Advocates
Date of Institution 04.10.2016
Date of receipt in this Court 16.03.2021
Date of conclusion of arguments 13.10.2023
Date of pronouncement 14.10.2023
Final Order (i) Convicted u/s. 304 Part-
II r/w. Section 185 of M.V.
Act
(ii) Acquitted u/s. 354 IPC.
FIR No. 1149/2015 State Vs. Deepak Page No. 1 of 78
SC No. 58112/2016, PS Punjabi Bagh
JUDGMENT
ACCUSATION/CHARGE :
1. Every criminal trial is primarily a voyage of discovery in which the truth is the quest. Truth and Justice are the two most reverent values apotheosized by mankind since time immemorial. Law acts as a conjunction between the two aforementioned venerable streams of human values. However, in a criminal trial there are situations when Truth seems to be obscure and Justice appears to be obfuscated under the mist of chicanery and mendacity. The Hon'ble Apex Court in Zahira Habib Ullah Sheikh v. State of Gujarat (2006) 3SCC 374 also remind the courts and judges of their sacrosanct duty to purge the sublime values and vindicate the triumvirate of Truth, Law and Justice.
2. Accused Deepak was committed to the Court of Sessions to stand trial for the offence punishable under Section 304-II IPC and 354 IPC & Section 185 of Motor Vehicle Act for driving his car bearing No. DL10C F 6367 at a very high speed in a drunken condition and hitting his aforesaid speeding car against the car No. DL4C NC 0390 of Sh. Sushant Jaggi and thereby causing death of Master Bismann Singh S/o Sh. Sushant Jaggi, aged about 03 years and also for using criminal force against Smt. Pamal Jaggi @ Parmal Jaggi W/o. Sh. Sushant Jaggi with the intention to outrage her modesty. FACTUAL MATRIX/ BACKGROUND OF THE CASE:-
3. The prosecution case in narrow compass is that on 03.11.2015 on receipt of DD No. 5A, ASI Ashwani Kumar (In short "Investigating Officer") along with Ct. Bhoop Singh reached at the spot i.e. mod, turn at Ring Road from Punjabi FIR No. 1149/2015 State Vs. Deepak Page No. 2 of 78 SC No. 58112/2016, PS Punjabi Bagh Bagh towards Rampura and found two cars bearing no. DL-4C NC 0390 & DL-10C F6367 in accidental conditions. No eye witness was found on the spot. In the meantime, Investigating Officer received another DD No. 6A and went to Maharaja Agarsen Hospital after leaving behind Ct. Bhoop Singh at the spot and received MLC bearing no. 735/15 Ex.PW7/A of Bismann Singh S/o Sh. Sushant Jaggi, aged about 03 years wherein, the doctors had mentioned A/H/O RTA near Punjabi Bagh Flyover as told by brought by with the name of injuries.
Investigating Officer met complainant Sh. Sushant Jaggi and recorded his statement Ex. PW2/A wherein, the complainant stated that he was residing at Behra Enclave, Paschim Vihar and on 03.11.2015, he along with his wife Smt. Parmal Jaggi @ Pamal Jaggi and his son Bismann Singh was going to Bangla Shahib Gurudwara by his car bearing registration no. DL4C NC 0390. At about 02.00 a.m., he turned his car from Ring Road, Punjabi Bagh towards Rampura, the driver of car bearing registration no. DL10 CF6367 (In short 'the offending vehicle/car') came driving his aforesaid car at a very high speed and in rash and negligent manner and hit the same forcefully on the left side door of his aforesaid car due to which, both doors of the left side of his car got damaged. The child of the complainant was also got injured in the said accident. The driver of the aforesaid car ran away from the spot. He can identify the said driver. He took his child to Maharaja Agarsen Hospital for treatment with the help of a motorcyclist. His wife also tried to apprehend the said driver of said offending vehicle but he managed to run away from the spot after pushing her. The said driver was heavily drunk and the smell of liquor from the mouth FIR No. 1149/2015 State Vs. Deepak Page No. 3 of 78 SC No. 58112/2016, PS Punjabi Bagh of said driver was also noticed. The Investigating Officer after recoding the aforesaid statement reached at the spot and prepared Tehrir on the basis of aforesaid statement and the aforesaid MLC of master Bismann Singh and got the present FIR registered through Ct. Bhoop Singh for the offences punishable under Section 279/337 IPC. The Investigating Officer seized both the aforesaid vehicles and prepared the site plan. The Investigating Officer obtained the details of the driver of offending vehicle from the registration number of the car and went to 33/17, Punjabi Bagh Extension, Delhi with the complainant and upon his identification arrested Deepak (In short 'the accused'). Personal search of the accused was also conducted and a notice Ex.PW14/C under Section 133 M.V. Act was also served upon the accused whereupon, the accused admitted that he was driving the aforesaid offending car at the time of accident and had caused the said accident by writing the same upon the said notice. The accused got medically examined and was found under the influence of the liquor leading to the addition of Section 185 M.V. Act. The wife of the complainant was also examined in the hospital by the Investigating Officer wherein, she disclosed that she also tried to apprehend the accused on the spot and at that time she noticed/felt the smell of liquor from the mouth of the accused. She also stated that the accused hit her chest with his hand with malafide intention. The accused also hit with bad intention his hands on her chest leading to the addition of section 354 IPC in the present case. The offending vehicle/car was seized and deposited in the Malkhana. The accused was produced before the Court of concerned learned Metropolitan Magistrate and was sent to the judicial custody. Master Bismann Singh, son of the FIR No. 1149/2015 State Vs. Deepak Page No. 4 of 78 SC No. 58112/2016, PS Punjabi Bagh complainant expired during his treatment (In short 'the deceased') leading to the addition of section 304A IPC. Thereafter, statement of Smt. Pamal Jaggi @ Parmal Jaggi was got recorded under section 164 Cr.P.C. Ex.PW1/A before the concerned Learned Metropolitan Magistrate, wherein she also stated about pulling of her Chunni and pushing her by touching her breast by the accused. The body of the deceased was handed over to his heirs after postmortem. Postmortem report was obtained. The documents of both the aforesaid vehicles were got verified and the charge sheet for the offences punishable under sections 279/304A/354 IPC and 185 M.V. Act was filed before the Court.
COGNIZANCE :
4. Learned Metropolitan Magistrate, West, THC, Delhi on 29.02.2016 had taken the cognizance of the offences under Section 279/304A/354 IPC & 185 M.V. Act. Thereafter, vide order dated 26.09.2016, Ld. Metropolitan Magistrate came to the conclusion that the facts of the case prima facie discloses the commission of offence punishable u/s. 304 (II) IPC, which is exclusively triable by Ld. Sessions Court and committed the case for trial to Ld. Sessions Court.
CHARGE :
5. On 18.05.2017, Ld. Predecessor of this Court framed the charge against accused for the offences punishable under Section 304(II) IPC read with Section 185 M.V. Act and Section 354 IPC. The accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
6. The prosecution has examined 14 witnesses in support of its case.
FIR No. 1149/2015 State Vs. Deepak Page No. 5 of 78 SC No. 58112/2016, PS Punjabi Bagh Sr. Witness Crux of Testimony No. Name
1. Ms. Pamal She is star prosecution witness being the Jaggi @ mother of deceased and was present in the car Parmal Jaggi with her husband and deceased son at the time of the incident. She is claimed to be one of the victim.
Her evidence is relevant for proving the allegations against the accused.
Her evidence is also essential for proving the identity of accused.
This witness has tendered the following document during her deposition:
1) Her statement recorded under Section 164 Cr. P.C:-
Ex. PW1/A
2) Photographs of offending vehicle :
Ex.P-1 to Ex.P-6 This witness was duly cross examined at length by Ld. Defence Counsel.
2. Mr. Sushant He is another star prosecution witness being Jaggi complainant as well as father of the deceased and was present in the car with her wife and deceased son at the time of the accident. He was the driver of his car at the time of accident. His evidence is relevant for proving the allegations against the accused.
His evidence is also essential for proving the identity of the accused.
This witness has tendered the following documents during his deposition:
1) The complaint : Ex. PW2/A
2) Arrest memo of the accused :
Ex.PW2/B FIR No. 1149/2015 State Vs. Deepak Page No. 6 of 78 SC No. 58112/2016, PS Punjabi Bagh Apart from tendering the aforesaid documents, this witness has also relied upon the following documents:
Photographs of offending vehicle : Ex. P1, P2, P7 to P10 This witness was also cross examined at length by the Ld. Defence Counsel.
3. Sh. A formal witness of investigation, who went Kanwaljeet to Maharaja Agarsen Hospital on 03.11.2015 Singh and found his grandson (Dyota) master Bismann Singh in injured condition, who expired on 05.11.2015. The witness had identified his dead body vide memo Ex.
PW3/A. He also received the same after postmortem.
This witness was cross examined by the Ld. Defence Counsel.
4. Sh. Varun Another formal witness of investigation, who Jaggi went to the spot of accident upon receiving the telephonic information and met PW-1 on the spot and reached with her to Maharaja Agarsen Hospital on 03.11.2015 and found his nephew Master Bismann Singh in injured condition, who expired on 05.11.2015. The witness had identified his dead body vide memo Ex. PW4/A. He also received the same after its postmortem.
This witness was not cross examined at the time of recording of his deposition on 02.05.2018 but was subsequently recalled for cross-examination in terms of the order dated 14.02.2022 on an application u/s. 311 Cr.P.C. and was cross-examined at length on 03.03.2022 by Ld. Defence Counsel.
5. Ct. Bhoop A formal witness of investigation, who Singh accompanied the investigating officer during investigation and hence, testified regarding various stages of investigation carried out in his presence.
FIR No. 1149/2015 State Vs. Deepak Page No. 7 of 78 SC No. 58112/2016, PS Punjabi Bagh His evidence is relevant for proving recording of statement of complainant, preparation of arrest memo, personal search memo, seizure memos of offending vehicles prepared by the IO.
This witness has tendered the following documents:
1) Personal search memo of the accused :
Ex. PW5/A
2) Seizure memos of both the vehicles No. DL10C F6367 and DL4C NC0390 :
Ex. PW5/B & Ex. PW5/C
3) Seizure memo of driving licence of the accused : Ex. PW5/D
4) Seizure memo of insurance of vehicle no.
DL10C F6367 : Ex. PW5/E
5) Photographs of offending vehicle :
Ex. P8 & Ex. P9 Apart from tendering the aforesaid documents, this witness has also relied upon the following documents:
1)Statement of complainant : Ex. PW2/A
2)Arrest memo of the accused : Ex. PW2/B This was duly cross examined by Ld. Addl. PP for the State as well as Ld. Defence Counsel.
6. Ct. Chander A formal witness of investigation, who Prakash accompanied the investigating officer during postmortem of deceased at SGM Hospital and dead body of the deceased after postmortem was handed over to his relatives vide receipt Ex. PW6/A. FIR No. 1149/2015 State Vs. Deepak Page No. 8 of 78 SC No. 58112/2016, PS Punjabi Bagh This witness was not cross examined by the Ld. Defence Counsel despite being given opportunity for the same.
7. Dr. Hari A formal witness of the investigation, who Shankar examined injured Bismann Singh and provided medical treatment and advised for his hospitalization. He also prepared MLC No. 735 of deceased and proved the same as Ex. PW7/A. This witness was again recalled for his examination in terms of order dated 25.02.2020 and the same was recorded on 22.10.2021 wherein he had deposed about examination of accused Deepak S/o. Khoob Ram on 03.11.2015 vide MLC No. 736 Ex.
PW7/B. During examination, he found the smell of alcohol in breath of the accused. He also measured the quantity of liquor in breath of accused with breath analyzer and found the same to be 81.5mg/100 ml.
This witness was cross examined on 14.09.2018 qua the MLC Ex.PW7/A and also on 22.10.2021 qua the MLC Ex.PW7/B by the Ld. Defence Counsel.
8. Retired A formal witness to the investigation, who ASI/Tech conducted mechanical inspection on Devender 09.11.2015 on the request of IO/ASI Ashwani Kumar Kumar of Ford Eco Sport Car bearing no.
DL10C F6367 and Honda City Car bearing No. DL4C NC0390 and found fresh damage on both the said vehicles and prepared his detailed reports Ex. PW8/A, Ex. PW8/B respectively and mentioned the word "Vehicle Mechanical Inspection Report attached" at point A of Ex.PW8/C i.e. on the request letter of IO/ASI Ashwani Kumar.
This witness was duly cross examined at length by the Ld. Defence Counsel.
FIR No. 1149/2015 State Vs. Deepak Page No. 9 of 78 SC No. 58112/2016, PS Punjabi Bagh
9. Dr. Munish A formal witness of the investigation, who Wadhawan, conducted postmortem examination on Specialist 05.11.2015 on the dead body of Bismann Forensic Singh at the request of SI Ashwani Kumar, Medicine, who was brought with alleged history of road SGMH, traffic accident on 03.11.2015 and after Mangolpuri conducting the postmortem, he handed over the dead body with PMR No. 1059/15 and 12 inquest papers to the IO.
His evidence is also relevant to prove the cause of death of deceased.
This witness tendered the following documents:
1)Detailed postmortem report : Ex. PW9/A This witness was cross examined by the Ld. Defence Counsel.
10 Dr. Bina, A formal witness of the investigation, under CMO, whose supervision medical examination of the Sanjay accused Deepak was conducted at Sanjay Gandhi Gandhi Memorial Hospital by Dr. Sanjeev, JR Memorial on 03.11.2015 at about 06.41 AM and proved Hospital, the MLC Ex. PW10/A. Mangolpuri This witness was cross examined by the Ld. Defence Counsel.
11. Dr. Ravi A formal witness of the investigation, under Kant whose supervision medical examination of the Bhaskar, accused Deepak was conducted at Dr. Baba CMO, Dr. Sahib Ambedkar Hospital by Dr. Mohit Baba Sahib Chaturvedi, JR on 03.11.2015 and proved the Ambedkar MLC No. 13857 Ex. PW11/A. Hospital This witness was not cross examined by the Ld. Defence Counsel despite being given opportunity for the same.
12. Sh. Raju A formal witness of the investigation, who Singh, proved the death summary of deceased master Medical Bisman Jaggi aged about 03 years, prepared FIR No. 1149/2015 State Vs. Deepak Page No. 10 of 78 SC No. 58112/2016, PS Punjabi Bagh Record by Dr. Sanjay K Rajan and countersigned by Officer, Dr. Divya at Maharaja Agarsen Hospital vide Maharaja MLC No. 15/735. This witness proved the Agarsen said MLC as Ex. PW12/A. Hospital This witness was duly cross examined at length by Ld. Defence Counsel.
13. ASI Ramtek A formal witness of the investigation, who received a PCR Call regarding accident at Ring Road leading towards Karampura and recorded the said call vide DD No. 5A in Roznamcha register and marked the same to ASI through mobile phone. He also received another PCR Call qua admission of injured in Maharaja Agrsen Hospital and recorded the said call vide DD No. 6A in Roznamcha register. He also recorded the FIR in the present case upon receipt of rukka through Ct. Bhoop Singh, sent by ASI and made endorsement on the same and also executed a certificate under Section 65B of Indian Evidence Act.
This witness has tendered the following documents:
1) Attested true copy of DD No. 5A :
Ex. PW13/A
2) Attested true copy of DD No. 6A :
Ex. PW13/B
3)Computerized copy of FIR : Ex. PW13/C
4) Endorsement on rukka : Ex. PW13/D
5) Certificate under Section 65B of Indian Evidence Act : Ex. PW13/E This witness was duly cross examined by Ld. Defence Counsel.
14 SI Ashwani He is the Investigating Officer and deposed Kumar regarding various stages of investigation carried out by him.
FIR No. 1149/2015 State Vs. Deepak Page No. 11 of 78 SC No. 58112/2016, PS Punjabi Bagh This witness has tendered the following documents :-
1) Rukka : Ex. PW14/A
2) Site plan : Ex. PW14/B
3) Notice under Section 133 of M.V. Act :
Ex. PW14/C
4) Seizure memo of RC of offending vehicle :
Ex. PW14/D
5) Mechanic inspection report of vehicle no.
DL4C NC0390 : Ex. P11
6) Photographs of vehicle no.
DL4C NC 0390 : Ex. P13 to Ex. P18 Apart from tendering the aforesaid documents, he has also relied upon the following documents:
1) Statement of the complainant : Ex. PW2/A
2) Seizure memos of both the vehicles :
Ex. PW5/B & Ex. PW5/C
3) Arrest memo of the accused : Ex. PW2/B
4) Personal search memo of accused :
Ex. PW5/A
5) MLC of accused prepared at SGMH Hospital : Ex. PW10/A
6) MLC of accused prepared at BSA Hospital : Ex. PW11/A
7) MLC of accused prepared at Maharaja Agarsen Hospital : Ex. PW7/B
8) Dead body identification memos :
Ex. PW3/A & Ex. PW4/A FIR No. 1149/2015 State Vs. Deepak Page No. 12 of 78 SC No. 58112/2016, PS Punjabi Bagh
9) Dead body handing over memo :
Ex. PW6/A
10) Mechanical inspection report of vehicle no. DL-10CF-6367 : Ex. PW8/C
11) Seizure memo of driving license of accused and insurance of offending vehicle : Ex. PW5/D & Ex.PW5/E
12) Driving licence of accused : Ex.P-12 This witness was duly cross examined at length by Ld. Defence Counsel.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
7. Thereafter, the accused was examined at length under Section 313 Cr. P.C on 25.03.2022, wherein, the accused denied all the incriminating evidences and claimed his innocence and false implication in the present case. He also expressed his willingness to lead evidence in his defence. DEFNCE EVIDENCE
8. In order to prove his innocence, the accused examined his wife Ms. Shalu as DW-1. She deposed that on 02.11.2015 at about 11.30/11.45 pm, she along with her husband (accused herein) was coming from the house of her mother in a car and when they turned towards Punjabi Bagh, one tanker came ahead of their car and her husband applied breaks and due to which, their car struck against the tanker at red light. Despite repeated efforts of her husband/accused, their car could not start as air bags opened. She was pregnant at that time. Thereafter, they reached their home and her husband gave medicines to her and himself took some liquor at home in order to relax himself. At about 04.30/05.00 A.M., her husband received a telephonic FIR No. 1149/2015 State Vs. Deepak Page No. 13 of 78 SC No. 58112/2016, PS Punjabi Bagh call from the police station regarding accident of their car and went to the police station and inquiry was made from her husband by the police officials. Thereafter, her husband/accused was taken to hospital for his medical examination.
9. This witness/DW-1 was duly cross examined at length by the Ld. Addl. PP for the State.
10. Defence evidence was closed vide order dated 27.04.2022 upon the request of Ld. Counsel for the accused and the matter was notified for final arguments. ARGUMENTS ON BEHALF OF THE STATE
11. Learned Additional Public Prosecutor assisted by Sh. Deepak Sharma, ld. Counsel for the complainant has argued that the prosecution has proved its case beyond reasonable doubt against the accused.
(i) The entire prosecution case is based on the testimonies of eye witnesses i.e. PW-1 and PW-2 (both parents of deceased) who were present at the spot at the time of accident and also upon the deposition of medical witnesses i.e. PW-7, PW-9, PW-10, PW-11 and PW-12. All the aforesaid witnesses including the remaining prosecution witnesses have duly supported the prosecution case against the accused during their deposition in the Court. Moreover, PW-2 Smt. Pamal Jaggi @ Parmal Jaggi is a victim herself as the accused had outraged her modesty by hitting her on her chest when she tried to prevent him from escaping from the spot. She has deposed not only about the rash and negligent manner of driving the offending vehicle in drunken condition by the accused and hitting the same against their Honda City car leading to the death of her infant child but also about the manner in which the accused had outraged her modesty. She has FIR No. 1149/2015 State Vs. Deepak Page No. 14 of 78 SC No. 58112/2016, PS Punjabi Bagh fully supported the prosecution case during her deposition and being a victim of the crime her testimony deserves to be considered for convicting the accused.
(ii) It is further argued that the cross examination of all the aforesaid star prosecution witnesses as well as remaining prosecution witnesses does not reveal anything favourable to the accused. It is also argued that there is nothing in the cross- examination of the eyewitnesses and other prosecution witnesses which could be said to be sufficient to create a doubt in the story of the prosecution.
(iii) Both the eyewitnesses have given a true and reliable account of how the offence was committed by the accused while driving his vehicle in rash and negligent manner in a drunken condition with the knowledge that driving of his vehicle in the aforesaid manner and in a drunken condition would likely to cause/result in death of any person and there is nothing to disbelieve their unflinching and cogent testimony on this issue.
(iv) It is furthermore argued that the evidences given by the prosecution witnesses are so meticulously flawless that it points to only one conclusion that the prosecution has proved its case beyond reasonable doubt, requisite for conviction of the accused in this case.
(v) It is further argued that the entire testimony of all the prosecution witnesses is consistent and there are no discrepancies in the same.
(vi) Entire evidence and the important documents for connecting and highlighting the role of the accused in committing the alleged offencce are also read and relied.
FIR No. 1149/2015 State Vs. Deepak Page No. 15 of 78 SC No. 58112/2016, PS Punjabi Bagh
(vii) The prosecution has fully proved this case by examining these eyewitnesses and corroborating them with medical evidences.
(viii) Both the eyewitnesses have duly identified the accused during their deposition being the driver of the offending vehicle.
(ix) The postmortem report Ex.PW9/A of deceased/infant child Bismann Singh also clearly established that the cause of his death was due to craniocerebral damage as a result of blunt force impact which are possible in the manner alleged i.e. road traffic accident.
(x) The accused was heavily drunk at the time of driving the offending vehicle and hit the same with the car of PW-2 in which the deceased was traveling with his parents.
12. It is further argued that the case has been proved beyond reasonable doubts and the accused deserves to be convicted for the charged offences.
Reliance is placed upon following judgments :
(i) Jitender Kumar v. State of Haryana - Criminal Appeal No. 1763 of 2008 dated 08.05.2012;
(ii) Kirender Sarkar & Others v. State of Assam - Criminal Appeal No. 845 of 2009 dated 27.04.2009;
(iii) Dharmendera Singh & Etc. v. State of U.P. - 1998 CRI.L.J. 2064;
(iv) Ronny @ Ronald James Alwaris etc. v. State of Maharashtra dated 05.03.1998 - Criminal Appeal No. 1065-66 of 1997;
(v) State of Bihar v. Dukhan Kahar @ Dukhan Ram Kahar of Hon'ble High Court of Judicature at Patna - Death Reference No. 1 of 2017 dated 21.05.2021;
ARGUMENTS ON BEHALF OF THE ACCUSED
13. Firstly, it is argued by Ld. Defence counsel that the identification of accused by PW-1 and PW-2 as deposed by them FIR No. 1149/2015 State Vs. Deepak Page No. 16 of 78 SC No. 58112/2016, PS Punjabi Bagh is highly improbable and doubtful. Their testimony unambiguously establishes that PW-1 had no occasion to identify the accused at the time of alleged accident. Further no TIP of the accused was conducted rather the Investigating Officer falsely implicated and arrested the accused from his residence after obtaining his details from Traffic Department. The identification in such manner is not admissible in evidence. Moreover, the alleged accident had taken place at 2.00 a.m. and there is no possibility of observing/seeing face of accused because the site plan does not shows the existence of any light pole or availability of proper light on or near the spot (Reliance is placed upon State of State of Madhya Pradesh v. Ghudan - 2003 (12) SCC 485 and Bollavaram Pedda Narsi Reddy v. State of A.P. - 1992 (2) SCR 723;)
14. Secondly, it is argued that the prosecution has also concocted false story regarding outraging the modesty of PW-1 by the accused as the complaint/FIR is silent regarding the same. This goes to establish that section 354 IPC was subsequently added for filling the lacunae in prosecution case. Deposition of PW-1 also makes the presence of public persons on the spot doubtful because the accused would have been apprehended at the spot, had the public persons were present at the time of accident. Further, the prosecution has not examined and withheld one of the material public witness Mr. Gagan despite recording his statement u/s. 161 Cr.P.C. He was not even cited as a prosecution witness. Therefore, adverse inference u/s. 114 (g) of Indian Evidence Act must be drawn against the prosecution for withholding their most material witness (Reliance is placed upon Takhaji Hiraji v. Thakore Kubersing Chamansing & Others, FIR No. 1149/2015 State Vs. Deepak Page No. 17 of 78 SC No. 58112/2016, PS Punjabi Bagh Rohtash Kumar v. State of Haryana - 2013 (14) SC 434; Mohanlal Shamji Soni v. Union of India & Another - 1991 SC 1346).
15. Thirdly, it is also argued that relevant evidence for connecting the accused's vehicle with the vehicle of the complainant is altogether missing because the colour of none of the aforesaid vehicle was found on them. There is not only delay in registration of the FIR and glaring improbabilities and inconsistencies in the prosecution case are further exhibited from the ante-timing of registration of the FIR because the statement of PW-2 was recorded at 8.30 a.m. and the registration of the FIR at 5.20 a.m. without recording the statement of PW-2 is not possible. Apart from it, the wife of the accused has been examined as DW-1. She explained the existence of liquor in the blood of the accused and her deposition further falsify the prosecution case.
16. Lastly it is argued that prosecution has miserably failed to prove its case beyond reasonable doubt. It is therefore prayed that the accused is innocent, but falsely implicated and he deserves to be acquitted.
Reliance is placed upon following judgments :-
(i) State of Madhya Pradesh v. Ghudan - 2003 (12) SCC 485;
(ii) Bollavaram Pedda Narsi Reddy v. State of A.P. - 1992 (2) SCR 723;
(iii) Takhaji Hiraji v. Thakore Kubersing Chamansing & Others;
(iv) Rohtash Kumar v. State of Haryana - 2013 (14) SC 434;
(v) Mohanlal Shamji Soni v. Union of India & Another -
1991 SC 1346;
FIR No. 1149/2015 State Vs. Deepak Page No. 18 of 78 SC No. 58112/2016, PS Punjabi Bagh
(vi) Swaran Singh v. State of Punjab - AIR 2002 (SC) 3652;
(vii) Dana Yadav @ Dahu & Others v. State of Bihar - 2002 AIR (SC) 3325;
APPRECIATION AND EVALUATION OF EVIDENCE, ANALYSIS OF CONTENTIONS AND FINDINGS
17. I have heard the final arguments advanced by the Ld. Additional Public Prosecutor duly assisted by Ld. Counsel for the complainant as well as Learned Counsel for the accused and have also gone through the entire record of the case. I have also considered the evidence adduced by both the sides with case laws relied by them as well as the arguments advanced by both the sides.
APPRECIATION OF LAW & EVIDENCE
18. Before appreciating evidence, brought on record by the Prosecution, I must mention here the law relating to the appreciation of evidences of the witnesses. Hon'ble Delhi High Court in the case titled as Satish Bombaiya v. State, 1991 JCC 6147 had observed :
"While appreciating the evidence of witness, approach must be whether the evidence of the witness read as a whole appears to have ring of truth. Once that impression is formed then undoubtedly it is 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 earlier evaluation of evidence is shaken as to render it unworthy. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by FIR No. 1149/2015 State Vs. Deepak Page No. 19 of 78 SC No. 58112/2016, PS Punjabi Bagh the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases".
19. So, in the wake of above mentioned law, evidence brought on record, has to be read as a whole and has to be appreciated as whole. Minor discrepancies over trivial matters and hyper technical approach while appreciating evidence, has to be avoided. It has to be seen whether shortcomings highlighted by accused, go to the root of the matter and if it so goes, then in that eventuality only evidence has to be discarded. PROOF BEYOND REASONABLE DOUBT
20. It is well settled that while in criminal cases, the doctrine of presumption of innocence casts the burden on the prosecution to prove its case against the accused persons beyond reasonable doubt, it is trite that doubt to the guilt of the accused should be substantial and not flimsy or fanciful. Such doubt need not reach certainity, but it must carry high degree of probability. In the case of State of U.P. v. Krishna Gopal (1998) SCC 302, it was observed that "though this standard is higher standard, there is, however, no absolute standard. What degree of probability amounts to - proof is an exercise particular to each case". Quoting from "The Mathematics of Proof - II :
FIR No. 1149/2015 State Vs. Deepak Page No. 20 of 78 SC No. 58112/2016, PS Punjabi Bagh Glanville Williams : Criminal Law Review 1979, by Sweet & Maxwell, p. 340 (342), it was observed that :
"The one piece of evidence may confirm the other. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice (underlined emphasized)"
21. In the case of Gurbachan Singh v. Satpal Singh, (1990) 1 SCC 445, the Supreme Court quoted observations of Lord Denning in Bater v. Bater in (1950) 2 All.E.R. 458 that "the standard adopted by the prudent man would vary from case to case, circumstances to circumstances". It was held that the Prosecution is not required to meet any and every hypothesis put forward by the accused. The contours of benefit of doubt were FIR No. 1149/2015 State Vs. Deepak Page No. 21 of 78 SC No. 58112/2016, PS Punjabi Bagh discussed in the case of K.Gopal Reddy v. State of AP, of (1979) 1 SCC 355, wherein the court placed reliance on the enunciation by Lord Denning in Miller (Supra), which is as under:
"A reasonable doubt, it has been remarked, ―does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons."
22. The caution articulated by the Supreme Court in Devender Pal Singh v. State of NCT of Delhi , (2002) 5 SCC 234 also emphasizes that perfection in a case may not be natural, when it stated thus:
"-53. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent."
23. The Hon'ble Supreme Court of India in the case of Nanjundappa and Anr. V. State of Karnataka, decided on 17 th May, 2022 has reiterated its view taken in the judgment titled as S.L.Goswami V. State of Madhya Pradesh, 1972 Crl.L.J.511 SC that :
'....the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage, does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases, where defence of the accused does not appear to be credible or is palpably false, that burden upon the prosecution does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert FIR No. 1149/2015 State Vs. Deepak Page No. 22 of 78 SC No. 58112/2016, PS Punjabi Bagh the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if, the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution'.
24. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
Keeping in mind aforesaid tenet, I am proceeding further and appreciating the evidence, brought on record by prosecution in the light of the testimonies of the prosecution and defence witnesses.
LEGAL PROVISIONS
25. The accused Deepak has been charged for the offence punishable u/s. 304-II IPC/354 IPC read with Section 185 of M.V. Act because he is stated to have caused the death of Master Bismann Singh by driving his car bearing DL10CF 6367 in a very high speed in drunken condition and hitting the same speeding car against the car bearing No. DL4C NC 0390 of Sh. Sushant Jaggi causing severe injuries to Master Bismann Singh who had ultimately succumbed to said injuries during his treatment in the hospital. The accused is also charged with the FIR No. 1149/2015 State Vs. Deepak Page No. 23 of 78 SC No. 58112/2016, PS Punjabi Bagh offence punishable u/s. 354 IPC because he is alleged to have outraged the modesty of PW-1 while fleeing away from the spot.
26. Present FIR was initially registered u/s. 279/337 IPC, but subsequently, due to the death of deceased during his treatment in the hospital, the provisions of Section 304-A IPC was invoked and the charge sheet was filed against the accused u/s. 279/304-A IPC. However, subsequently, the court had observed vide order dated 26.09.2016 that instead of Section 304- A IPC the allegations against the accused attracts the offence punishable u/s. 304-II IPC and accordingly, matter was committed to Ld. Sessions Court for trial. Charge for the offence punishable u/s. 304-II IPC was framed against the accused.
27. Hon'ble Apex Court in State v. Sanjeev Nanda AIR 2012 - Supreme Court 3104 has held that the necessary requirement for applicability of section 304 Part II is :-
(i) that the Prosecution is required to prove the death of the person in question;
(ii) that such death was caused by the accused;
(iii) that the accused knew that such act of his, is likely to cause death;
28. In Assu v. State of Rajasthan, it was further held that where the accused inflicted fatal injuries on the head of deceased which caused his death without intention to kill him, is liable to punished u/s. 304 Part II IPC. Therefore, necessary ingredients for attracting the offence of 304 Part II IPC is:
(a) There should be death of a person;
(b) The said death was caused by the act of
the accused;
FIR No. 1149/2015 State Vs. Deepak Page No. 24 of 78
SC No. 58112/2016, PS Punjabi Bagh
(c) The said act was done by the accused
with the knowledge that it is likely to
cause the death but without any intention
to cause the death.
29. The prosecution is required to prove following ingredients for securing the conviction of the accused u/s. 354 IPC :-
(a) Assault or use of the criminal force by the accused to any woman;
(b) It was done with the intention to outrage her modesty; or
(c) It was done with the knowledge that it is likely to outrage the modesty of the woman.
Therefore, the culpable intention of accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty herein is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex.
30. Apart from it, the prosecution is also praying for convicting the accused u/s. 185 of M.V. Act. The necessary ingredients required for convicting the accused under this Section are :-
(a) Driving of a motor vehicle by the accused under the influence of alcohol;
(b) The quantum of the said alcohol must exceed 30 mg/100 ml of the blood detected in a test by a breath analyzer or any other laboratory test;
APPRECIATION OF EVIDENCE
31. Now to summarise the case of the prosecution, it is alleged that the complainant, his wife and his minor child Bisman Singh were going in their car to Bangla Sahib Gurudwara on FIR No. 1149/2015 State Vs. Deepak Page No. 25 of 78 SC No. 58112/2016, PS Punjabi Bagh 03.11.2015 at about 2.30 a.m. and when they reached at a turn towards Ram Pura at Ring Road, Punjabi Bagh, accused Deepak rammed his Ecco Sports car bearing no. DL10C F6367 into their car at a very high speed by driving the same in a rash and negligent manner causing brutal injuries to complainant's minor child and damage to both the doors of complainant's car. Complainant immediately took his child to Maharaja Agarsen Hospital, but the child eventually succumbed to the injuries and passed away. Complainant's wife made an attempt to prevent the accused from fleeing and catch him on the spot, but the accused has forcibly pushed his wife and ran away from the spot after outraging her modesty. The accused was under the influence of liquor and foul smell of alcohol was also felt by complainant's wife. The accused was subsequently arrested from his residence upon the identification of the complainant.
32. The MLC of the accused Ex.PW10/A at 6.41 a.m. dated 03.11.2015 shows that the accused had admitted the consumption of alcohol. The smell of alcohol in his breath and presence of 81.5 mg/100 ml alcohol in his breath was also found at the time of his examination by breath analyzer at 8.30 a.m. on 03.11.2015. The death summary Ex.PW12/A shows that injured/deceased Bismann Jaggi was brought to the hospital with the alleged history of RTA, head on collision with a car and sustained head injury with gross lacerated wound over face left side. Patient had history of loss of consciousness and vomiting, and was intubated in Casualty etc. Patients had three episodes of seizure. He was declared dead on 05.11.2015 at 8.30 a.m.
33. The aforesaid facts claim the presence of complainant and his wife in the accidental/damaged car at the FIR No. 1149/2015 State Vs. Deepak Page No. 26 of 78 SC No. 58112/2016, PS Punjabi Bagh time of alleged incident. PW-1/wife of the complainant PW-2 is claimed to have made an attempt to catch the accused on spot, but he managed to flee away from the spot after outraging her modesty. PW-1 also felt the bad smell of alcohol from the accused as the accused was heavily drunk. Therefore, the prosecution case is based on the testimonies of eye witnesses relating to the manner in which the accused was driving his offending vehicle at the time of strucking the same against the vehicle of the complainant in which the deceased was also present with his both parents and the case is not based on circumstantial evidence.
34. According to the prosecution case, at the time of ramming his Ecco Sportz car bearing DL10 CF6367 by the accused into the car of the complainant on 03.11.2015, the complainant's car was driven by complainant Sushant Jaggi and at that time his wife Pamal Jaggi @ Parmal Jaggi and his minor child Master Bismann Singh, aged about three years was also going with them in the said car to Bangla Sahib Gurudwara. Allegations qua the outraging the modesty of complainant's wife Smt. Pamal Jaggi @ Parmal Jaggi by the accused while fleeing from the spot are also leveled against the accused. Therefore, the prosecution's claim that at the time of alleged offence apart from deceased Master Bismann Singh, his father/complainant Sushant Jaggi - PW-1 and his mother Smt. Pamal Jaggi @ Parmal Jaggi were also present in the car hit by the accused Deepak causing severe injuries and ultimately the death of Master Bismann Singh. Therefore, these two witnesses i.e. PW-1 and PW-2 are the most material witnesses and the entire case of Prosecution FIR No. 1149/2015 State Vs. Deepak Page No. 27 of 78 SC No. 58112/2016, PS Punjabi Bagh hinges upon their depositions. Both these witnesses are claimed to be the victims and eye witness of the entire accident. Eye Witnesses
35. A witness that saw the happening of the accident being inquired by the court is an eyewitness. Reliable evidence of eyewitnesses cannot be disregarded in the absence of strong reasons. Conviction can be based upon the testimony of sole eyewitness if the same is found wholly reliable. In case, if his testimony is not found to be wholly reliable, the court may insist upon some independent corroboration.
36. The prosecution has claimed that PW-1 and PW-2 are the eye witnesses/victims of the alleged accident. Therefore, both of them are the star prosecution and linchpin of the Prosecution case. Eyewitnesses play an important role in the criminal justice system. The quality of evidence of an eyewitness depends on many factors prominent among them are his view in which the crime is committed, his confidence with respect to the accuracy of the description of the crime and identification of the accused and his description, the amount of attention the witness paid to the crime during its occurrence, the probability of the witness being present at the place of accident, the accuracy and probability of what he is defining etc. The law relating to the appreciation of evidence of eyewitnesses is completely settled that generally the testimony of eyewitness of the accident is considered credible unless and until it is specifically shown or proved to have a taint for any reason on which it is assailed. Generally, the courts tend to believe what the eyewitnesses depose in the court and it is only when there exists grave and material discrepancies and contradictions in FIR No. 1149/2015 State Vs. Deepak Page No. 28 of 78 SC No. 58112/2016, PS Punjabi Bagh their statements which compels the court to think and doubt that whether the eyewitness is giving a truthful account, it can come in the domain of suspicion. When the tenacity and doggedness of the eyewitness is suspicious, when the truthfulness of the testimony of the eyewitness is shrouded in grave clouds of suspicion and falsity, the court may disbelieve that witness or may look for such corroboration of his evidence which are capable of removing the blemish from his evidence.
However, the contradictions and omissions which are not material regards being to the facts of the case, those can be overlooked. Way back in 1957, in Vadivelu Thevar v. The State of Madras, A.I.R. (1957) S.C. 614, Hon'ble Supreme Court has categorised the witnesses in three categories. It was held that as a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
Generally speaking, oral testimony in this context may be classified into three categories, namely:(1) Wholly reliable, (2) Wholly unreliable, (3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, found to be above reproach or suspicion of interestedness, FIR No. 1149/2015 State Vs. Deepak Page No. 29 of 78 SC No. 58112/2016, PS Punjabi Bagh incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
37. In Rammi alias Rameshwar v. State of Madhya Pradesh AIR 1999 SC 256, Hon'ble Supreme Court observed that when eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non- discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an accident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
38. In Ugar Ahir v. State of Bihar AIR 1965 SC 277, the Hon'ble Supreme Court stated the legal position that the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But it cannot obviously disbelieve the substratum of the prosecution FIR No. 1149/2015 State Vs. Deepak Page No. 30 of 78 SC No. 58112/2016, PS Punjabi Bagh case or the material parts of the evidence and reconstruct a story of its own out of the rest.
39. Further, in case of State v. Saravanan, AIR 2009 SC 152, it was held that the court can overlook minor discrepancies on trivial matters which do not affect the core of the prosecution case. In State of U.P. v. Krishna Master, AIR 2010 SC 3071, the Hon'ble Supreme Court emphasised that it is the duty of the court to separate falsehood from the truth, in sifting the evidence. At the same time, the eye-witness testimony must be credible and reliable. It should not be contradicted by other eyewitnesses or by the medical and forensic evidence, if any.
40. In Narayan Chetanram Chaudhary & Anr. vs. State of Maharashtra reported in AIR 2000 SC 3352, Hon'ble Supreme court reiterated the law laid down in its previous judgments and observed that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye- witnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief FIR No. 1149/2015 State Vs. Deepak Page No. 31 of 78 SC No. 58112/2016, PS Punjabi Bagh that the wrong should be remedied. As a matter of fact, it depends upon individuals and individuals.
There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not failing within a set pattern is unproductive and a pedantic exercise.
41. In Darya Singh and others vs State of Punjab, (1964) 3 SCR 397, Hon'ble Supreme Court upheld the conviction of the appellant in a murder case based on the testimony of eye witnesses who were near relatives and observed that there can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, it was held that the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence.
Where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal court to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence.
FIR No. 1149/2015 State Vs. Deepak Page No. 32 of 78 SC No. 58112/2016, PS Punjabi Bagh If the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised. In doing so, it may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of enemy of the family out of malice.
The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses.
On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars.
42. Hon'ble Supreme Court in State of Himachal Pradesh v. Lekh Raj & Anr., 1999 (9) Supreme Today 155, dealing with discrepancies, contradictions and omissions held that discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful.
FIR No. 1149/2015 State Vs. Deepak Page No. 33 of 78 SC No. 58112/2016, PS Punjabi Bagh The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement.
Mere congruity or consistency is not the sole test of truth in the depositions. In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
43. Again, recently in Bhagchandra vs State of Madhya Pradesh, 2021 SCC Online SC 1209, Hon'ble Supreme Court upheld the conviction of the appellant in a murder case based on the testimonies of eye witnesses who were close relatives of the deceased like wife. While referring to other authorities on this issue, observed that 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 found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in FIR No. 1149/2015 State Vs. Deepak Page No. 34 of 78 SC No. 58112/2016, PS Punjabi Bagh the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
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.
Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars.
The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.
In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, FIR No. 1149/2015 State Vs. Deepak Page No. 35 of 78 SC No. 58112/2016, PS Punjabi Bagh shock and horror at the time of occurrence and threat to the life. It is not un-often that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly.
Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, the court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case.
It could thus be seen that what is required to be considered is whether the evidence of the witness read as a whole appears to have a ring of truth. It has been held that 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, would not ordinarily permit rejection of the evidence as a whole. It has been held that the prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free.
What is important is to see as to whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. It has been held that there are always normal discrepancies due to normal errors of observation, normal errors of memory due to lapse of time, due to mental FIR No. 1149/2015 State Vs. Deepak Page No. 36 of 78 SC No. 58112/2016, PS Punjabi Bagh disposition, shock and horror at the time of occurrence. It is the duty of the court to separate falsehood from the truth in every case.
44. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004 (1) C.C. Cases 487. In the judgment reported as Namdeo Daulata Dhayagude and Ors. vs. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused. If one integral part of the story put forth by a witness was not believable, then entire case fails.
Where a witness makes two inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence [Reliance can be placed upon the judgment of Hon'ble Delhi High Court of Delhi reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del)].
Crucially, the materials and evidence on the record do not bridge the gap between 'may be true' and 'must be true' so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the witnesses have themselves not deposed anything incriminating against the FIR No. 1149/2015 State Vs. Deepak Page No. 37 of 78 SC No. 58112/2016, PS Punjabi Bagh accused. Even otherwise, no useful purpose would be served by adopting hyper technical approach in the issue. Testimony of solitary witness, reliable, unreliable and partly reliable witness
45. Law on this regard is quite clear, it has been held in number of judgments that conviction can be based on the testimony of solitary witness. Even if the case against the accused hangs on the evidence of a single eye-witness, it may be enough to sustain conviction on the basis of sterling testimony of a competent, honest and trustful witness. Witnesses have to be weighed and not counted in as much as quality matters more than quantity in human affairs. Prudence, however, requires that some corroboration should be sought from other prosecution evidence in support of the testimony of a solitary witness particularly where such witness happens to be closely related to the deceased or the accused is one against whom some motive or ill will is suggested. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and
(iii) neither wholly reliable nor wholly unreliable. In the first two categories there may not be difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. [As held in Ramesh 2004 Cri LJ 70 (Mad); Sunil Kumar 2004 Cri LJ 819 (SC): AIR 2004 SC FIR No. 1149/2015 State Vs. Deepak Page No. 38 of 78 SC No. 58112/2016, PS Punjabi Bagh 552: (2003) 4 Crimes 382 (SC): (2003) 11 SCC 367; Chittar Lal (2003) 6 SCC 397; Chanan Ram 1999 (10) JT 389 (SC); State v Dhirendra Kumar (1997) 1 SCC 93: AIR 1997 SC 318: (1996) 10 JT 93: (1996) 4 Crimes 195 (SC)]
46. Where there is a sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. Even though such witness is an injured witness and his presence may not be seriously doubted, when his presence is in conflict with other evidence, it would be unsafe to convict the accused on his sole testimony. [As held in Joseph (2003) 1 SCC 465: AIR 2003 SC 507: 2003 Cri LJ 813 (SC): (2003) 1 Crimes 206 (SC); Chittar Lal (2003) 6 SCC 397: AIR 2003 SC 3590: 2003 Cri LJ 3548 (SC):(2003) 3 Crimes 131 (SC) : (2003) 7 JT 270].
APPRECIATION OF TESTIMONIES Public Witnesses :
47. Now with these legal parameters regarding appreciation of evidence of eyewitness and being conscious of the fact that the burden of proof in a criminal trial is always on the prosecution and it never shifts and to secure a conviction, the prosecution has to prove its case beyond reasonable doubt on the basis of acceptable evidence, I will proceed for the appreciation of evidence.
It is a settled principle of criminal law jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. Though it is neither possible nor prudent to have a FIR No. 1149/2015 State Vs. Deepak Page No. 39 of 78 SC No. 58112/2016, PS Punjabi Bagh straight-jacket formula or principle which would apply to all cases without variance and every case has to be appreciated on its own facts and in light of the evidence led by the parties.
It is for the court to examine the cumulative effect of the evidence in order to determine whether the prosecution has been able to establish its case beyond reasonable doubt or that the accused is entitled to the benefit of doubt.
48. Now, coming to the appreciation of evidence, I am proceeding further and appreciating the evidence brought on record by the prosecution.
49. Applying the witness credibility test laid down in the aforesaid case laws by the Hon'ble Apex Court, it is revealed that the case of the prosecution is based primarily on the evidence of two eye witnesses i.e. PW-1 Ms. Parmal Jaggi and PW-2 Sh. Sushant Jaggi. Both of them are mother and father of the deceased Master Bismann Singh and are stated to be present in the accidental car with the deceased at the time of the alleged incident. The accused is also alleged to have outraged the modesty of PW-1 Smt. Pamal Jaggi @ Parmal Jaggi at the time of fleeing away from the spot. Both of them have seen the accident. PW-2 also tried to save the life of his son by immediately taking him to Maharaja Agarsen Hospital whereas PW-1 tried to catch the accused on the spot.
50. To understand how these eye witnesses described the incident, I am making an attempt to reproduce the substance of their deposition.
PW-1 Smt. Pamal Jaggi @ Parmal Jaggi
51. According to Prosecution case, PW-1 is the mother of deceased Master Bismann Singh and was going to Bangla FIR No. 1149/2015 State Vs. Deepak Page No. 40 of 78 SC No. 58112/2016, PS Punjabi Bagh Sahib Gurudwara with her husband and deceased son in their white colour Honda City car on the intervening night of 02/03.11.2015.
This witness has categorically deposed about her presence in their Honda City car on the day of accident with her husband and deceased son. She has deposed that her son Master Bismann Singh was sitting with her on the front left side of the car. When at about 2.00 a.m. they reached under Punjabi Bagh Flyover and took the turn towards right side for Moti Nagar, the Ecco sportz car of the accused came at a very fast speed from opposite direction and hit against the left side of their car. Her minor son Bismann Singh sustained injuries due to collusion and became unconscious. Blood started oozing out from him. Her husband opened the door of the car for getting down from the same. She raised noise stating that her son has received injury.
The offending vehicle also got damaged and at the time of the accident, same was being driven by the accused, present in the court. Her husband took the lift from a motorcyclist and took him to Maharaja Agarsen Hospital. She went towards the accused who was standing by the side of his car. Foul smell of alcohol was coming from the mouth of the accused. She asked the accused "ततनन मनरन बचचन कक कयय कर ददयय" (What you did with my son). The accused put his hands on her chest and pushed her, due to which she fell down on the road. She got up and in the meanwhile, accused sat in his car and tried to start the same. However, the offending vehicle could not be started. She tried to open the door of car of the accused and the accused with jerk opened the same, due to which, she again fell down on the road.
FIR No. 1149/2015 State Vs. Deepak Page No. 41 of 78 SC No. 58112/2016, PS Punjabi Bagh Thereafter, accused fled away, leaving his car on the spot. She used the mobile phone of some passerby for making a call to her brother in law Varun Jaggi. She went to the Maharaja Agarsen Hospital with her brother in law Varun Jaggi.
Police also reached at the spot and she narrated the accident to the police who recorded her statement. Her son succumbed to his injuries after two days of accident. She also narrated the accident before Ld. MM vide Ex.PW1/A. She has pleaded her ignorance regarding the registration number of the offending car, but in answer to the leading question of Ld. Public Prosecutor she initially admitted that the correct registration number of DL4C NC0390 and the registration number of offending vehicle was DL10C F 6367, but again stated that she does not remember the registration number. She identified the offending vehicle from the photographs available on the record. The said photographs are from Ex.P-1 to Ex.P-6.
52. Therefore, PW-1 in her testimony, broadly speaking, reiterated the prosecution story.
53. PW-1 was cross-examined at length by Ld. Counsel for the accused on various aspects to check the veracity and truthfulness of her deposition regarding her presence in the car at the time of alleged accident. The questions regarding the time when she left her home with her husband and deceased son, the distance between Bangla Sahib Gurudwara and her house and the time taken in reaching the spot from her home as well as the injuries sustained by her and her husband were also asked.
PW-1 has clarified that prior to the accident her child was neither sleeping nor eating anything. Her husband came out from the car, immediately after the accident, she did not come out of FIR No. 1149/2015 State Vs. Deepak Page No. 42 of 78 SC No. 58112/2016, PS Punjabi Bagh the car due to the injuries sustained by her deceased son. Her husband was initially going towards the accused, but she stated "बचचन कक कयय हक गयय हह", therefore, he came to her and took the child from her. Thereafter, she came out of the car from the right side door of the same as the left side door was not opening due to the accident. Windowpane of the left side was also closed. Her husband, within few minutes of the incident took the child to the hospital by taking a lift on the motorcycle of a passerby.
PW-1 has explained that due to injuries of her child, she could not notice the registration number of the said motorcycle. She also explained the distance between the offending vehicle and their car after the incident. She also explained the direction of front side of the offending vehicle and her car after the incident stating that the front side of the offending vehicle was facing the right side (driver side) body of their vehicle. Their vehicle which was turned towards left side after being hit by the offending vehicle.
54. PW-1 has denied the suggestion that her husband was habitual drunker and also the suggestion that the alleged accident had taken place due to negligent driving of her husband. She has also deposed that her statement was recorded by the IO on 03.11.2015 and by Ld. Magistrate on 09.11.2015. She has also denied the suggestion of giving the statement u/s. 164 Cr.P.C. to Ld. Magistrate under pressure or coercion.
The accused was not known to her prior to the accident and the name of the accused was told to her by husband. She has also deposed that she shared the fact about the outraging her modesty by the accused with her husband.
FIR No. 1149/2015 State Vs. Deepak Page No. 43 of 78 SC No. 58112/2016, PS Punjabi Bagh The deposition of PW-1 also shows that there was no suggestion to the effect that accused was not present on the spot or that he was not driving the offending vehicle or that the accident was caused by any other vehicle or that the car of the accused had already met with an accident with some other vehicle prior to the alleged accident between the offending vehicle and car of the complainant, were given by the accused or his counsel.
55. The deposition of PW-1 shows that she has refuted the suggestion of deposing falsely against the accused. The fact that the accused was not known to her prior to the accident and his name was disclosed to her by her husband shows the absence of any enmity or malafide intention of PW-1 to falsely implicate the accused in this case. Therefore, I believe her testimony to be trustworthy and reliable qua the driving of the offending vehicle in drunken condition by accused Deepak and causing the alleged accident by accused Deepak.
56. PW-2 Sushant Jaggi is the complainant/husband of PW-1 and father of the deceased child. He was driving his Honda City car. He has also deposed on the same lines as deposed by PW-1 and supported the prosecution case. It is deposed by him that at the time of alleged incident he was driving his Honda Car DL4C NC0390 and when he reached under Punjabi Bagh Flyover and took turn towards right side on the road leading towards Moti Nagar, the driver of the Ecco Sportz white No. DL10CF 6367 came from his left side at very fast speed and hit against his car on left side between the both doors. The driver of the said Ecco car was driving in rash manner i.e. zig-zag manner. His vehicle turned/swerved. He opened the door of his car and FIR No. 1149/2015 State Vs. Deepak Page No. 44 of 78 SC No. 58112/2016, PS Punjabi Bagh got down from the same. When he walked towards the driver of the Ecco car, the accused (correctly identified), he heard the noise of his wife "मनरय बनटय गयय-मनरय बनटय गयय, मनरन बनटन कक लग गई-मनरन बनटन कक लग गई।".
On hearing the same, he immediately turned towards his vehicle and took his three years old child in his lap, who had sustained injuries on his head and face. His head was swollen and was bleeding. He took the lift from a motorcyclist and immediately reached Maharaja Agarsen Hospital. His vehicle got damaged due to the accident and condition of his child was very serious. Therefore, he took the lift for reaching the hospital. His child was taken to Emergency Ward. His wife also reached in the hospital within 15 to 20 minutes with his brother Varun Jaggi and informed that "जजसनन हमयरर गयडर कक टककर मयरर थर, उसनन बहह त जययदय शरयब पर रखर थर, उसकन मतमह सन बदबब आ रहर थर, उससन खडय भर नहर हह आ जय रहय थय।" It is further deposed by him that मनरर वयईफ नन उसन पकडनन कक ककदशश करर तब उसनन उसकक छयतर पर धककय मयरय, उसनन चतनर भर जखचर थर, दफर वक नरचन दगर गयर। जक यन दरपक हह वक गयडर मन जयकर बहठ गयय, उसनन गयडर सटयटर करनन कक ककदशश कक जक नहर हह ई। मनरर वयईफ नन उसकक गयडर कय दरवयजय खरचय जक उसनन दरवयजन सन धककय मयरय और मनरर वयईफ दगर गई, दफर यन वहयम सन भयग गयय। Thereafter, SI Ashwani and Mr. Bhoop Singh reached at the hospital and recorded his statement Ex.PW1/A. Thereafter, he went to the spot with police officials and site plan was prepared at his instance.
57. From the spot, he along with police officials went to PS Punjabi and from there they all went to the house of accused. The information about the address of the accused was collected by the police officials and they took him to the house of the accused. The door of the house was opened by the accused and at that time, very foul smell of alcohol was coming from the FIR No. 1149/2015 State Vs. Deepak Page No. 45 of 78 SC No. 58112/2016, PS Punjabi Bagh mouth of the accused, who admitted that the accident was caused by him. The accused was arrested and personally searched vide Ex.PW2/B. Thereafter, PW-2 went to the hospital and with his wife/PW-1 went to his home. Thereafter, both of them came back to hospital after changing their clothes. They remained in the hospital till the death of of his son i.e. till 05.11.2015. The postmortem of dead body of his son was conducted by the doctors and body was handed over to his brother and father in law. He also identified the accused. He also identified the offending vehicle from the photographs of the offending vehicle already Ex.P-1, Ex.P-2, Ex.P-7 to Ex.P-10.
58. This witness was also cross-examined at length to check the veracity and truthfulness of his deposition. In his cross-examination, it is explained by him that his statement was twicely recorded in this case. His first statement was recorded in the hospital whereas his second statement was recorded at the spot. He visited the spot from the hospital with the police for identification of his vehicle/Honda City car. It is clarified by PW- 2 that at the time of alleged accident, he was going to Gurudwara Bangla Sahib and was passing under the Flyover of Punjabi Bagh. He denied the suggestion about never visiting the spot or the residence of the accused. It is admitted by him that neither he nor his wife received any injury in the accident and none of them was medically examined by the doctor. It is deposed by him that he is not a usual drinker of alcohol. He denied the suggestion that he did not got himself medically examined as he was under
the influence of alcohol at the time of accident. He has also denied the suggestion of causing accident by his own rash and FIR No. 1149/2015 State Vs. Deepak Page No. 46 of 78 SC No. 58112/2016, PS Punjabi Bagh negligent act or about false implication of the accused for covering his own negligence.
59. This shows that this witness has also stood the acid test of cross-examination as he has substantially reiterated the prosecution story and corroborated the deposition of his wife/PW-1. He has deposed about the manner of zig-zag driving at a very high speed of the offending vehicle by the accused causing the accident. He has no occasion or opportunity to feel the smell of alcohol from the mouth of the accused at the spot because when he was approaching the accused, his attention was drawn towards the cries of his wife, who was saying 'मनरन बनटय गयय-मनरन बनटय गयय, मनरन बनटन कक लग गई-मनरन बनटन कक लग गई'. Therefore, he acted as per the natural reaction of any human being to give priority to health/well being of one's child. He also turned towards his wife and took his three years old child in his lap and after noticing injuries on his head and face causing bleeding etc., he preferred to take a lift from a motorcycle and got his child admitted in the Emergency Ward of Maharaja Agarsen Hospital. However, when he went to the house of the accused, he also noticed very bad smell of alcohol from the mouth of the accused. The accused was arrested in his presence vide memo Ex.PW2/B. His knowledge qua outraging the modesty of his wife by the accused by hitting on her chest or pulling her chunni depends upon the information given to him by his wife/PW-1.
60. The deposition of this witness is having natural flow and found to be consistent with the prosecution case and the statement made by him during investigation. Therefore, I also believe his testimony as trustworthy and reliable.
FIR No. 1149/2015 State Vs. Deepak Page No. 47 of 78 SC No. 58112/2016, PS Punjabi Bagh
61. PW-4 Varun Jaggi is the brother of complainant/PW- 2 and brother in law of PW-1. He has deposed about reaching on the spot upon receiving telephonic call from PW-1 regarding the accident. He met with PW-1 on the spot and brought her to Maharaja Agarsen Hospital where his brother/PW-2 has already brought his three years old child for treatment. The said child expired on 05.11.2018 in the hospital and he received his dead body vide Ex.PW4/A. He was cross-examined at length and he denied the suggestion of not reaching the spot or hospital.
62. The deposition of PW-4 lends credence to the deposition of PW-1 and PW-2 and substantiates prosecution case about presence of PW-1 at the spot as she was brought to the hospital by PW-4.
Police Witnesses
63. PW-5 Ct. Bhoop Singh and PW-14 Ashwani Kumar are the police witnesses who reached the spot i.e. near Traffif Signal on Ring Road leading towards Moti Nagar after receiving a call around 2.20 a.m. On the spot, they found two vehicles in accidental condition viz. Ford Ecco Sportz car and Honda City car.
PW-5 Ct. Bhoop Singh remained on the spot and ASI Ashwani Kumar went to Maharaja Agarsen Hospital as a call regarding injured's admission in the said hospital was received by them.
Subsequently, ASI Ashwani Kumar came back to the spot with the complainant/PW-2 Sushant Jaggi and recorded complainant's statement. Rukka was prepared and handed over to Ct. Bhoop Singh around 5.00 a.m. for registration of FIR. Accordingly, Ct. Bhoop Singh went to the police station and got FIR No. 1149/2015 State Vs. Deepak Page No. 48 of 78 SC No. 58112/2016, PS Punjabi Bagh the case registered and gave the copy of FIR to ASI Ashwani Kumar. Crane was arranged for towing both the vehicles to police station as they were not in working condition. Around 6.30 a.m., he along with ASI Ashwani Kumar and complainant/PW-2 Sushant Jaggi went to the house of accused and brought him to the police station. Medical examination of the accused was conducted at SGM Hospital. However, the machine for testing the quantity of consumption of liquor was not available at SGM Hospital, therefore, they went to Baba Saheb Ambedkar Hospital, but the machine was also not found available at the said hospital.
Therefore, they went to Maharaja Agarasain Hospital. The requisite test was conducted at Maharaja Agarsen Hospital and they went to the police. Accused was arrested after his personal search vide Ex.PW2/B and his personal search memo is Ex.PW5/A. Both the vehicles were seized vide memos Ex.PW5/B and Ex.PW5/C.
64. This witness identified the accused as well as offending vehicle. The photographs of the offending vehicle were also exhibited as Ex.P-8 and Ex.P-9.
65. He was cross-examined at length and clarified that the offending vehicle was the Ecco Sportz car and not the Ecco Maruti.
66. Similarly PW-14 Investing Officer ASI (now SI) Ashwani Kumar has deposed about reaching the spot and investigating the present case. It is deposed by him that ownership of the offending vehicle DL10CF 6367 was got verified by him from Traffic Control Room and it was revealed that owner of the said car was Deepak R/o. 33/17, Punjabi Bagh FIR No. 1149/2015 State Vs. Deepak Page No. 49 of 78 SC No. 58112/2016, PS Punjabi Bagh Extension, Delhi. Therefore, he along with Ct. Bhoop Singh and the complainant went to the house of accused. Bad smell alcohol was permeating from the mouth of the accused.
During interrogation, the accused confessed that at the time of accident he was driving the offending vehicle. A notice u/s. 133 M.V. Act Ex.PW14/C was also served upon the accused. He arrested the accused vide arrest memo already Ex.PW2/B after his personal search vide memo already Ex.PW5/A. Medical examination of the accused was also got conducted at Sanjay Gandhi Memorial Hospital vide already Ex.PW10/A wherein the doctor has mentioned the fact of consumption of alcohol by the accused. However, the hospital was not having any facility of checking of liquor in the blood of the accused therefore, it was mentioned in the said MLC that no alcohol meter was available in the hospital and the accused was referred to higher centre for further evaluation. The accused was taken to Baba Saheb Ambedkar Hospital. His MLC was also prepared in the said hospital. But the alcohol meter was also not found available in the said hospital. The doctor also mentioned in the MLC of the accused that there was smell of alcohol in the breath of the accused. The accused was requested to give his blood for further evaluation, but the accused refused to give his blood sample. This fact was also mentioned in the MLC already Ex.PW11/A. Therefore, the accused was taken to Maharaja Agarsen Hospital for measuring the quantity of the liquor in the breath of the accused with the breath analyzer and it was found that there was 85.1 mg/100 ml quantity of the liquor in the breath of the accused. MLC already Ex.PW7/B was prepared regarding the FIR No. 1149/2015 State Vs. Deepak Page No. 50 of 78 SC No. 58112/2016, PS Punjabi Bagh same. The refusal of the accused to give his blood sample left no other option before the Investigating Officer except the breath analyzer test of the accused for detecting the quantity of alcohol in his breath and the same was done by the IO in this case.
Subsequently, after the aforesaid test, the accused was brought to the police station and left in the custody of Ct. Bhoop Singh. He came back to the hospital and found that condition of injured child was critical. PW-1 Parmal Jaggi, wife of the complainant met him in the hospital and informed that accused had misbehaved with her when she was trying to catch the accused after the accident. Same was also informed to SHO and Section 354 IPC was also invoked against the accused. Accused was produced before the court and was sent to JC.
67. PW-14 has also stated that on 05.11.2015 he received the information about the death of the injured child, therefore, the accused was booked u/s. 304-A IPC. Postmortem on the body of the deceased child was conducted and same was handed over vide Ex.PW6/A. Thereafter on 09.11.2015 statement of PW-1 Parmal Jaggi was recorded u/s. 161 Cr.P.C. Post mortem report was collected by him from SGM Hospital and mechanical inspection of both the vehicles was got conducted.
Mechanical inspection for report of car No. DL10CF 6367 already Ex.PW8/C whereas the mechanical inspection report of car No. DL4CN 0390 is Ex.P-11. Driving license of the accused already Ex.P-12 and insurance of the vehicle were seized vide Ex.PW10/E whereas the RC of the vehicle was seized vide Ex.PW14/D. This witness has identified the accused as well as both the cars. The photographs of car/vehicle DL10CF 6367 FIR No. 1149/2015 State Vs. Deepak Page No. 51 of 78 SC No. 58112/2016, PS Punjabi Bagh already Ex.P-1 to Ex.P-6 and photographs of vehicle No. DL4CN 0390 is exhibited as Ex.P-13 to Ex.P-18.
PW-14 was cross-examined at length regarding the investigation conducted by him and also about his spot inspection with Ct. Bhoop Singh as well as regarding the place of arrest of the accused and the time of serving notice u/s. 133 M.V. Act upon the accused. He clarified that the supplementary statement of the complainant/PW2 and statement of PW-1 were also recorded by him. He also explained that he took the accused to Baba Saheb Ambedkar Hospital at about 7.00 a.m. for alcohol test, but same could not be conducted for want of alcohol meter. The doctor has mentioned the smell of alcohol upon the MLC. The accused had refused to give his blood sample and from there, accused was brought to Maharaja Agarsen Hospital where the MLC of the accused was also prepared. He denied about conducting unfair investigation.
68. Therefore, the deposition of PW5 and PW14 describes the manner in which the investigation was conducted and the accused was identified and arrested. It also explains the reason of multiple MLCs of the accused and shows that the accused was arrested from his residence at about 6.25 a.m. and he was initially taken to SGM Hospital and the smell of alcohol was found, noticed and mentioned upon his MLC, but the exact quantity of the same could not be measured in the hospital for want of alcohol meter and around 7.00 a.m. he was taken to Baba Saheb Amebdkar Hospital, but the alcohol meter was also not found in the said hospital, but the doctor found the smell of alcohol and mentioned the same in the MLC of the accused.
FIR No. 1149/2015 State Vs. Deepak Page No. 52 of 78 SC No. 58112/2016, PS Punjabi Bagh Finally, the MLC of the accused was prepared at Maharaja Agarsen Hospital and quantity of liquor was found 81.5 mg/100 ml in the breath of the accused. These witnesses also explained about the removal of both the accidental vehicles from the spot and about their mechanical inspection by ASI Devender (PW-8).
69. These witnesses have deposed in consistency with the prosecution case and substantially corroborated the testimony of PW-1, PW-2 and the remaining prosecution witnesses. The testimony of these witnesses also found to be natural and does not suffer from any infirmity.
Technical Witness
70. The mechanical inspection of both the vehicles bearing No. DL10CF 6367 Ford Ecco Sportz car and DL4C NC 0390 Honda City Car were conducted by PW-8 ASI Devender vide reports Ex.PW8/A and Ex.PW8/B, respectively. According to his opinion, both the vehicles were so much damaged and they were not fit to be driven on the road.
71. The deposition of PW-8 shows the severity of the accident and the extent of damage caused to both the vehicles because according to him none of the vehicle was fit to be driven on the road. The photographs of the offending vehicle as well as vehicle of the complainant exhibited during the testimony of PW- 1 (as Ex.P-1 to Ex.P-6), PW-2 (as Ex.P-1, Ex.P-2, Ex.P-7 to Ex.P-10), PW-5 (as Ex.P-8 and Ex.P-9) and PW-14 (as Ex.P-13 to Ex.P-18) also shows extent of damage caused to both the vehicles due to collusion between them. This corroborates the findings of PW-8 and his mechanical inspection reports as Ex.PW8/A and Ex.PW8B respectively. The extent of damage FIR No. 1149/2015 State Vs. Deepak Page No. 53 of 78 SC No. 58112/2016, PS Punjabi Bagh caused to both the vehicles shows that at the time of the alleged accident the offending vehicle was driven at a very high speed. Medical Evidence qua the existence of alcohol in the blood of the accused:
72. The prosecution has alleged that the accused was heavily drunk but despite that he preferred to drive the offending vehicle at a very high speed in a zig-zag, rash and negligent manner due to which the offending vehicle hit against the car of PW-1 Smt. Parmal Jaggi and PW-2 Sh. Sushant Jaggi causing the death of their child. To prove the fact about the presence of the liquor in the breath/blood of the accused, the prosecution has examined PW-7 Dr. Hari Shankar, PW-10 Dr. Beena and PW-11 Dr. Ravi Kant.
73. PW-7 Dr. Hari Shankar conducted the MLC of the accused on 03.11.2015 at about 8.30 a.m. and found smell of alcohol in the breath of the accused. He measured the quantity of the liquor in the breath of the accused with the help of breath analyzer and measured the said quantity as 81.5 mg/100 ml. His report is Ex.PW7/B.
74. The accused was examined on 03.11.2015 at 6.41 a.m. at Sanjay Gandhi Hospital by Dr. Sanjeev, JR under the supervision of PW-10 Dr. Beena. The quantity of the liquor in the blood of the accused could not be measured due to non availability of alcohol meter in the hospital and he was referred to Higher Centre. The MLC of the accused is exhibited as Ex.PW10/A.
75. The MLC Ex.PW11/A of the accused was prepared at Dr. Baba Saheb Ambedkar Hospital at 7.15 a.m. on 03.11.2025shows that accused was examined by Dr. Mohit FIR No. 1149/2015 State Vs. Deepak Page No. 54 of 78 SC No. 58112/2016, PS Punjabi Bagh Chaturvedi under the supervision of Dr. Ravi Kant Bhaskar, PW-
11. The examining doctor has mentioned in Ex.PW11/A that the smell of alcohol was present in the breath of the accused.
Breath Alcohol Concentration (BAC) machine of the hospital was not working due to which BAC of the accused could not be conducted. The accused has refused to give his blood for blood sample for detection of alcohol.
76. The deposition of these witnesses PW-7, PW10 and PW-11 lends credence to the prosecution story that the accused was heavily drunk at the time of the alleged accident. Their testimony shows that at the time of medical examination of the accused on 03.11.2015 at about 8.30 a.m., smell of alcohol was felt by PW-7. The breath analysis shows the presence of 81.5 mg./100 ml alcohol in the breath of the accused. Apart from PW-7, PW-11 has also felt the smell of alcohol in the breath of the accused when he was produced before him for his medical examination. PW-1 has also felt the smell of alcohol in the breath of the accused when she tried to prevent the accused from fleeing from the spot after the incident, PW-2, PW-5 and PW-14 also felt the smell of alcohol in the breath of the accused when they met the accused at his home before his arrest at 6.25 a.m. vide memo Ex.PW2/A.
77. The testimony of PW-7, PW-10 and PW-11 also shows the efforts made by the Investigating Officer for medical examination of the accused to find out the presence of alcohol in his breath. It also explains the delay in conducting the medical examination of the accused for this purpose. This also establishes that at 8.30 a.m. on 03.11.2015, breath analyzer shows the presence of 81.5 mg/100 ml alcohol in the breath of FIR No. 1149/2015 State Vs. Deepak Page No. 55 of 78 SC No. 58112/2016, PS Punjabi Bagh the accused which is found to be very high. The alleged accident had taken place on 03.11.2015 at about 2.00 a.m. The accused was arrested from his residence at about 6.25 a.m. His medical examination could be conducted on the same day at about 8.30 a.m. Therefore, there is time gap of approximately 6 hours and 30 minutes between the accident and the medical examination of the accused. The quantity of the liquor in the breath/blood/body of the accused is bound to reduce with every passing moment, minute and hour. Therefore, when at about 8.30 a.m. the said quantity was 81.5 mg/100 ml, this quantity must have been very high at 2.00 a.m. when the alleged accident had taken place and the accused has preferred to drive his car with such high quantity of the alcohol. This goes to show that the act of driving the offending vehicle by accused was imminently dangerous.
Medical Evidence qua the death of Infant Master Bismann Singh
78. PW-9 Dr. Munish Wadhawan and PW-12 Sh. Raju Singh have proved the factum of the death of Master Bismann Singh, three years old child of the complainant. PW-9 conducted the postmortem examination on the dead body of Master Bismann Singh which was brought with the alleged history of 'Road Traffic Accident' on 03.11.2015. The cause of death in his opinion was cranio-cerebral damage as a result of blunt force impact. All injuries were found to be antemortem in nature and possible in the alleged manner i.e. RTA. His report is exhibited as Ex.PW9/A.
79. Death summary vide MLC No. 15/735 of Master Bismann Singh was prepared by Dr. Sanjay K. Ranjan and FIR No. 1149/2015 State Vs. Deepak Page No. 56 of 78 SC No. 58112/2016, PS Punjabi Bagh countersigned by Dr. Divya and the same is exhibited as Ex.PW12/A by PW-12 Raju Singh, Medical Record Officer from Maharaja Agarsen Hospital.
Now reverting back to the arguments raised by Ld. Defence counsel for creating doubts and holes in the prosecution story.
80. It is argued by Ld. Counsel that the alleged accident had taken place at 2.00 a.m. on 03.11.2015 but the FIR was registered at 5.20 a.m. on the same day whereas the statement of the complainant was recorded by the IO at 8.30 a.m. Therefore, the present FIR has been registered with a considerable delay and the same is ante-timed.
It is argued by Ld. Counsel for the accused that due to said delay a concocted story regarding the presence of PW-1 was also incorporated in the said FIR only for bringing the subsequent allegations regarding outraging modesty of PW-1 by the accused.
Here, before appreciating the said aspect, I must refer the significance of lodging the FIR promptly and consequences of lodging delayed FIR, as appreciated by Apex Court in following case laws :-
(i) Tara Singh v. State of Punjab (1991) Supplementary (1)
- SCC 536, the Hon'ble Apex Court observed that "It is well settled that the delay in giving the FIR itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times, being grief stricken because of FIR No. 1149/2015 State Vs. Deepak Page No. 57 of 78 SC No. 58112/2016, PS Punjabi Bagh the calamity, it may not immediately occurred to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station, for giving the report".
(ii) Thereafter, in Satpal Singh v. State of Haryana (2010) 8 SCC 714, Hon'ble Apex Court again observed : This court consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging the FIR more often than not, results in embellishment and exaggeration which is a creature of an after thought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the intruduction of coloured version and exaggerated account of incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt in its veracity. Thus, the FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same of the reason that in case substratum of evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety.
The net result is that the in the wake of above mentioned judge made law it is clear that the FIR must be recorded promptly by the police, after the occurrence, ordinarily. At the same time, if there is delay in lodging the FIR then the courts have to be appreciate the circumstances in which matter was reported to the police considering the human conduct of the informant/complainant, who had faced the said incident. It is only when testimony of the complainant is found to be unreliable that in delay in lodging the FIR would be fatal to the prosecution.
FIR No. 1149/2015 State Vs. Deepak Page No. 58 of 78 SC No. 58112/2016, PS Punjabi Bagh In catena of the judgments, the Hon'ble Apex Court has also laid down that the FIR is only first information report about the incident/cognizable offence. It is not an encyclopedia and is not bound to contain each and every minor detail about the incident/offence. However, it must contain the substance of the offence.
Keeping in mind above mentioned case law and understanding of the law, I am reverting back to the facts of the case.
The record shows that the alleged accident had taken place around 2.00 a.m. on 03.11.2015. The information regarding the same was received in the PS at 5.20 a.m. on the same day. Thereafter the present FIR was registered immediately after recording the statement of PW-2 Mr. Sushant Jaggi. The IO subsequent to registration of FIR visited the house of the accused along with the complainant and arrested the accused vide arrest memo Ex.PW2/B at about 6.25 a.m. on 03.11.2015 upon the identification by the complainant.
The FIR shows that the wife of the complainant had tried to catch the accused on the spot, but he managed to run away after pushing her. Smell of the liquor was also permeating from the mouth of the accused at that time. PW-2/complainant as well as other prosecution witnesses/PW-4 Varun Jaggi have also deposed about the presence of complainant's wife/Smt. Parmal Jaggi on the spot and attempt made by her to catch the accused on the spot. PW-1 Smt. Parmal Jaggi in her statement recorded u/s. 164 Cr.P.C. Ex.PW1/A as well as her in testimony has also deposed about the same explaining her attempt to catch the accused on spot. However, the accused put his hands on her FIR No. 1149/2015 State Vs. Deepak Page No. 59 of 78 SC No. 58112/2016, PS Punjabi Bagh chest and pushed her due to which she fell down on the road and the accused managed to flee away from the spot. Foul smell of the alcohol was also coming from the accused.
Therefore, it can be said that the FIR was registered without any delay and the testimonies of PW-1 and PW-2 justified as to what had happened between 2.00 a.m. to 5.20 a.m. on 03.11.2015. Time was consumed in visiting the hospital for saving the life of complainant's son and thereafter, informing the police and recording the statement Ex.PW2/A. The said time spent prior to the registration of FIR in question, was reasonable and probable and as such, there was no delay in lodging the FIR in question.
Apart from it, the testimony of PW-2 establishes the presence of PW-1 on the spot and the attempt made by her to catch the accused at the time of accident. These facts are elaborated by PW-1 in her testimony in the court and also in her statement Ex.PW1/A recorded u/s. 164 Cr.P.C. Therefore, the presence of PW1 cannot be denied or it cannot be said that her presence on the spot is planted by the IO for proving the prosecution case.
Moreover, testimony of PW-1 shows that she made a call from the spot to her brother-in-law Varun Jaggi (PW-4) and informed him about the accident. PW-4 reached on the spot and took her to the hospital where her infant child was brought by her husband for treatment. PW-4 has also deposed about the same.
Therefore, it cannot be said that the prosecution has introduced new story by showing presence of PW-1 on the spot.
Moreover, arrest memo Ex.PW2/B also shows the arrest of the accused at 6.25 a.m. on that day upon the identification of the FIR No. 1149/2015 State Vs. Deepak Page No. 60 of 78 SC No. 58112/2016, PS Punjabi Bagh complainant. This shows that the complainant and the Investigating Officer had visited the house of the accused and the Investigating Officer arrested the accused at 6.25 a.m. and the accused was taken to Sanjay Gandhi Hospital at 6.41 a.m. on 03.11.2015 for his medical examination. This fact is recorded in the MLC of the accused exhibited as Ex.PW10/A. Thereafter he was taken to Dr. Baba Sahib Ambekdar Hospital at 7.15 a.m. as proved from Ex.PW11/A and the accused was finally medically examined at 8.30 a.m. at Maharaja Agarsen Hospital as recorded in MLC Ex.PW7/B. The arrest and medical examination of the accused can be effected only after registration of the FIR against him and therefore, this shows that prior to his arrest and his production before various doctors at Sanjay Gandhi Hospital, Dr. Baba Saheb Ambedkar Hospital and Maharaja Agarsen Hospital for his medical examination the FIR Ex.PW13/C was already recorded and there is no substance in the argument that it was recorded after 8.30 a.m. or that it was ante-timed.
81. The next argument raised by Ld. Counsel is about non examination of material prosecution witness.
It is submitted by Ld. Counsel for the accused that the prosecution has deliberately not examined all the available public witnesses only for falsely implicating the accused in this case. It is argued that prosecution has deliberately withheld and not examined public witness Gagan despite recording of his statement u/s. 161 Cr.P.C. This witness is not even cited as prosecution witness, therefore, adverse inference u/s. 114 (g) of Indian Evidence Act must be drawn against the prosecution for FIR No. 1149/2015 State Vs. Deepak Page No. 61 of 78 SC No. 58112/2016, PS Punjabi Bagh withholding the aforesaid public witness namely Gagan S/o. Madan Mohan Bambari. Reliance is placed upon Takhaji Hiraji v. Thakore Kubersingh Chaman Singh & Others (supra).
Admittedly, the Investigating Officer has recorded the statement of aforesaid Mr. Gagan u/s. 161 Cr.P.C. but his name is not included in the list of prosecution witnesses relied by the prosecution.
Now the question is whether the prosecution is bound to examined all the public witnesses examined during investigation whether cited/listed as prosecution witness or not?
The Hon'ble Apex Court in Abdul Gani vs. State of Madhya Pradesh - AIR 1954 Supreme Court 31 has examined the aforesaid issue and has held, that as a general rule all witnesses must be called upon to testify in the course of hearing of prosecution, but there is no obligation compelling the public prosecutor to call all the public witnesses, available who can depose regarding the facts that the prosecution desires to prove. Ultimately, it is a matter left to the discretion of public prosecutor, and though a court ought to and no doubt would, take it into consideration the absence of witness whose testimony would reasonably be extracted, it must adjudge the evidence as a whole and arrive at its conclusion accordingly, taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be leveled at the absence of possible material witnesses.
Thereafter, in Sardul Singh v. State of Bombay - AIR 1957 - Supreme Court - 747, a similar view has been reiterated observing that a court cannot normally compel the prosecution to examine a witness which the prosecution does not choose to FIR No. 1149/2015 State Vs. Deepak Page No. 62 of 78 SC No. 58112/2016, PS Punjabi Bagh examine, and that the duty of a fair prosecutor extends only to the extent of examination of such witnesses, who are necessary for the purpose of disclosing the story of the prosecution with all its essentials.
In Masalti v. State of UP - 1965 Supreme Court 202 - it was held that it would be unsound to lay down as a general rule that every witness must be examined, even though the evidence provided by such witness may not be very material, or even if it is a non fact that the said witness has either been won over or terrorized. In such cases, it is always open to the defence to examine such witnesses as their own witnesses.
In Harpal Singh vs. Devender Singh & Others - AIR 1997 Supreme Court 2914 - it was once again reiterated that the Illustration (g) in Section 114 (g) of Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances to facilitate the drawing an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non examination of a witness even if it is a material witness.
In Mohan Lal Shyam Lal Soni v. Union of India & Others AIR 1991 Supreme Court 1346 - it was held that it is cardinal rule in the law of evidence that the best available evidence should be brought before the court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the court is not empowered under provisions of the court to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. Nonetheless if either of the parties withhold any evidence FIR No. 1149/2015 State Vs. Deepak Page No. 63 of 78 SC No. 58112/2016, PS Punjabi Bagh which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under Illustration (g) to Section 114 of the Evidence Act.
Therefore, on the basis of the aforesaid mandate of Hon'ble Apex Court, it can be concluded that the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine cited, but not examined witnesses, if he so desires in his defence.
Reverting back to the facts of the case, in the present case, although the prosecution is claimed to have recorded the statement of public witness Gagan u/s. 161 Cr.P.C, however, this witness was not even named by the prosecution in the list of witnesses filed along with the charge sheet of the present case. Therefore, in view of aforesaid dictums, the prosecution cannot be compelled to examine the said witness. Moreover, the accused has also not taken any step for examining this witness in his defence, therefore, the question of drawing any adverse inference against the prosecution due to the non examination of this witness does not arise.
82. It is argued that there is no possibility of identifying the accused by PW-1 and PW-2 as alleged incident had taken place at 2.00 a.m. and the site plan Ex.PW14/B does not show the existence of any light pole on the spot and no TIP of the accused was conducted by the prosecution. The accused was for the first time identified by the complainant/PW-2 and his wife/PW-1 in the court. No effort was made by the IO for conducting the TIP of the accused. Reliance is placed upon State FIR No. 1149/2015 State Vs. Deepak Page No. 64 of 78 SC No. 58112/2016, PS Punjabi Bagh of Madhya Pradesh v. Ghudan - 2003 (12) SCC 485 and Bollavram Pedda Narsi Reddy v. State of A.P. - 1992 (2) SCR
723. It is argued by Ld. Addl. PP for the State that Ld. Counsel is making misleading submissions regarding the same because the deposition of PW-1 and PW-2 shows that both the witnesses had ample opportunities to notice the distinctive features of the accused which lends assurance to their testimony in the court. Their evidence cannot be thrown away merely because no identification parade of the accused was held and the accused for the first time was identified by the witnesses in the court.
It is also argued that this is for the first time at the stage of final arguments, Ld. Counsel for the accused is raising this argument. No question regarding the availability of light on the spot or non identification or about the possibility of non identification of the accused by the PW-1 and PW-2 were ever put to these witnesses. No such defence was ever taken by the accused at any stage of the trial including in his statement recorded u/s. 313 Cr.P.C. or during the testimony of his wife/DW-1. No such question regarding the same was ever put to the Investigating Officer PW-14 or to the PW-5 Ct. Bhoop Singh who accompanied the IO during investigation.
The Hon'ble Apex Court in catena of cases has highlighted the importance of test identification parade (in short "TIP") and from the multiple pronouncements of Hon'ble Apex Court, the following propositions qua test identification parade can be safely culled out :
(i) Absence of test identification parade is not ipso facto fatal to the prosecution case;
FIR No. 1149/2015 State Vs. Deepak Page No. 65 of 78 SC No. 58112/2016, PS Punjabi Bagh
(ii) It is a part of investigation and is very useful in cases where the accused are not known before hand to the witnesses;
(iii) It assures the Investigating Agency that the investigation is proceeding in a right direction;
(iv) TIP is held during investigation to minimize the chances of memory loss to identify the witnesses due to long lapse of time;
(v) If the identity of the accused is known to the prosecution witness before hand, no TIP is required rather it would be meaningless and sheer wastage of public time;
(vi) Identification of the accused in the court is a substantive evidence;
(vii) Previous identification in TIP is rule of prudence and not law;
(viii) It simply act as a check valve to the evidence of identification of accused by witnesses in the court;
(ix) Mere failure to hold a TIP is not always fatal to the prosecution case; but the court will need to circumspect in accepting the identification of accused by a witness in the court if the accused is stranger to the witness;
(x) Where the witness had a chance to interact with the accused or where the witness had an opportunity to notice distinctive feature of the accused which lends assurance to his testimony in the court, evidence of identification in the court for the first time by such witnesses cannot be thrown away merely because no previous identification parade was held;
FIR No. 1149/2015 State Vs. Deepak Page No. 66 of 78 SC No. 58112/2016, PS Punjabi Bagh
(xi) Substantive evidence of identification in the court after a long lapse of time may be weak piece of evidence in the absence of previous TIP. However, even such evidence can be admitted if sufficiently explained and corroborated;
(xii) Whether evidence deserves any credence or not would always depend on the facts and circumstances of each case;
(xiii) A witness, who receives injury and who had a chance to see the faces of the offenders would be an important aspect as identity would well remain imprinted in his mind. Reliance is placed upon Ronny @ Ronald James Alwaris etc. v. State of Maharashtra (supra) and State of Bihar v. Dukhan Kahar @ Dukhan Ram Kahar (supra) and State of Maharashtra v. Sukhdev Singh & Another (1992) 3 SCC 700 Considering the aforesaid dictums of law, it can be safely concluded that in the present case non holding of the TIP of the accused is not fatal to the prosecution case because PW-1 and PW-2 have deposed about identifying the accused on the spot immediately after the accident and the accused was arrested only upon the identification of PW-2/complainant. The testimony of PW-1 shows that immediately after the accident she went to the accused who was standing by the side of his car and noticed foul smell of alcohol from the mouth of accused. She also asked the accused "ततनन मनरन बचचन कक कयय कर ददयय" (What you did with my son). The accused had put his hand on her chest and pushed her due to which she fell down on the road. Thereafter, the accused sat in his car and made an attempt to start the same. PW-1 at that time also tried to open door of the car of the accused but the accused with a jerk opened the same causing the fall of PW-1 on the road.
FIR No. 1149/2015 State Vs. Deepak Page No. 67 of 78 SC No. 58112/2016, PS Punjabi Bagh Thereafter, the accused fled away from the spot. Similarly, the deposition of PW-2 shows that after the accident he walked towards the accused.
Therefore, the deposition of both the witnesses makes it clear that PW-1 had a chance to interact with the accused when she went to him and questioned him by saying " ततनन मनरन बचचन कक कयय कर ददयय" (What you did with my son). She had an opportunity to notice the distinctive features of the accused which lends assurance to the identification of the accused by her in the court. Similarly, PW-2 had also the opportunity to notice the distinctive features of the accused when he went towards him after the accident.
Moreover, the evidence of PW-1 and PW-2 stands on a higher pedestal being the victims and parents of the deceased child. Both of them had ample opportunities to see the face of the offender. The identity of the accused would well remain imprinted in their mind due to the severity of the accident and the loss of life of their child. Therefore, their evidences cannot be thrown away merely because no previous identification parade of the accused was held by the IO.
Apart from it, the question of subjecting the accused to further test identification parade does not arise because the test identification parades are required to be arranged only for removing the doubts about the identity of the accused and establishing the identity of the accused so that investigation can be taken in a logical direction.
Whereas in the present case the identity of the accused was established from the deposition of PW-2 and also from the deposition of PW-1. Further, the deposition of PW-1 and PW-2 FIR No. 1149/2015 State Vs. Deepak Page No. 68 of 78 SC No. 58112/2016, PS Punjabi Bagh clearly establishes that both the witnesses have not only seen the accused on the spot, but also an effort was made by PW-1 to catch the accused on the spot, but he managed to flee away from the spot. PW-1 has also felt the smell of alcohol from the mouth of the accused during her attempt to catch him. Similarly, PW-2 has also felt the smell of alcohol from the mouth of the accused when he along with IO went to the house of accused for identifying him.
Moreover, the deposition of PW-1, PW-2, PW-5 and PW- 14 as well as other investigating witnesses shows that no such question was ever put by the accused to these witnesses during recording their deposition in the court. Similarly, no question regarding availability of light on the spot or non identification of the accused or its possibility/impossibility by PW-1 and PW-2 were never put these witnesses. Similarly, no such plea/defence was ever taken by the accused during his examination u/s. 313 Cr.P.C. or during the deposition of defence witnesses/his wife/DW-1.
Therefore, I discard these arguments being inconsequential in nature. Hence, there seems to be no substance in the aforesaid argument.
83. Ld counsel for accused argued that there are material contradictions/discrepancies in prosecution story. Benefit of the same must be given to the accused. Those contradictions/discrepancies as highlighted by him are mentioned below :-
(i) There was no transfer of colour from the offending vehicle to the vehicle of the complainant and vice-versa. The same FIR No. 1149/2015 State Vs. Deepak Page No. 69 of 78 SC No. 58112/2016, PS Punjabi Bagh is not possible due to the magnitude of the alleged collusion.
(ii) It was argued that the investigation done by the police is shoddy as the police is claimed to have reached the house of the accused by obtaining information about his residence from the registration number of his car.
However, the accused was not residing at the address recorded with the Transport Authority due to the construction in his house and he had shifted to an adjacent house.
(iii) PW-1 has deposed that after the accident, the accused, being in an inebriated condition, was not in a position even to stand on his leg. In such an eventuality, it is improbable for the accused to flee away from the spot.
(iv) The manner in which PW-2 has given the details of the directions are improbable.
It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in its entirity. Therefore, unless irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence 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 evidences as a whole and evaluate them to find out whether it is against general tenor of the evidence given by the witnesses and whether earlier evaluation of FIR No. 1149/2015 State Vs. Deepak Page No. 70 of 78 SC No. 58112/2016, PS Punjabi Bagh evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution. Thus, the court must read the evidence of the witness as a whole, and consider the case in the light entirety of the circumstances, ignoring the minor discrepancies with respect to trivial matters, which do not affect the core of the case of the prosecution. The said discrepancies as mentioned above, should not be taken into consideration, as they cannot form a ground for rejecting the evidence on record as a whole. Reliance is placed upon the case of State of UP v. M.K. Anthony, AIR 1985 Supreme Court 48, State rep. by Inspector of Police v. Sarvanan & Anr. - AIR 2009 SC 152, Vijay @ Chinee v. State of M.P. (2010) 8 SCC
191. Reverting back to the arguments qua non transfer of colour from the offending vehicle to the vehicle of the complainant and vice-versa.
The mechanical inspection reports Ex.PW8/A and Ex.PW8/B shows the severity of the accident and extent of damage caused to both the vehicles because according to the report of PW-8, none of vehicle was fit to be driven on road. The photographs of the offending vehicle as well as vehicle of the complainant exhibited during the testimony of PW-1 (as Ex.P-1 to Ex.P-6), PW-2 (as Ex.P-1, Ex.P-2, Ex.P-7 to Ex.P-10), PW-5 (as Ex.P-8 and Ex.P-9) and PW-14 (as Ex.P-13 to Ex.P-18) also shows extent of damage caused to both the vehicles due to collusion between them. This corroborates the findings of PW-8 and his mechanical inspection reports as Ex.PW8/A and FIR No. 1149/2015 State Vs. Deepak Page No. 71 of 78 SC No. 58112/2016, PS Punjabi Bagh Ex.PW8B respectively. The deposition of PW-1, PW-2, PW-5 and PW-14 also establishes the manner of accident and the extent of damage caused to both the vehicle in the said collusion.
The testimony of PW-1 and PW-2 has been found to be credible and trustworthy. No questions regarding the same were put by the accused to Mechanical Inspector (PW-8) ASI Devender during his cross-examination. Therefore, the mere fact that no evidence was lead to prove the transferring of paint/colour from the offending vehicle to complainant's vehicle and vice-versa cannot be said to be fatal to the prosecution case.
It is settled principle that the evidence has to be read as a whole to find out the ring of the truth. Once that impression is found, the minor discrepancies with regard to trivial matters are required to be ignored. Accordingly, this argument stands discarded and not sufficient to demolish the prosecution case.
Now coming to the arguments qua arrest of the accused from his residence.
Perusal of the exhibit Ex.PW14/C notice served upon the accused u/s. 133 of M.V. Act nowhere shows that the accused has mentioned the address of the house in which he was residing at the time of his arrest.
Moreover, this argument again, saw light of the day only during course of final arguments. It was never put to any of the witnesses for checking their veracity.
These arguments are based upon whims only. No evidence based on these arguments were brought to the fore, during trial. The deposition of PW-2, PW-5 and PW-14 shows that all of them went to the house of the accused on 03.11.2015 and the accused was arrested from his residence vide Ex.PW2/B. No question FIR No. 1149/2015 State Vs. Deepak Page No. 72 of 78 SC No. 58112/2016, PS Punjabi Bagh regarding the said new address of the accused was put to either of these witnesses. These arguments are raised for the first time during final argument. The accused never raised these questions during the recording of his statement u/s. 313 Cr.P.C. Even his wife has also been examined in his defence as DW-1, but she has also not made any claim regarding the non availability as well as the arrest of the accused at/from the given address. Therefore, I discard this argument also being inconsequential in nature.
Similarly, the remaining discrepancies highlighted by Ld. Counsel seems to be trivial which are not sufficient for demolishing the prosecution case because the presence of the accused at the spot, injuries sustained by the victim/deceased as reflected from medical record Ex.PW9/A coupled with the alcohol quantity found in the breath report Ex.7/B of the accused which was conducted approximately six hours and 30 minutes after the alleged accident, formed the crux of the prosecution case. The same was not adversely affected, on the basis of highlighted minor discrepancies. The ocular testimonies of PW-1 and PW-2 (both parents of the deceased)/eye witness of the incident as well as other prosecution witnesses stood the acid test of cross-examination. They were not cross-examined in detail by the accused with regard to above mentioned highlighted discrepancies. Therefore, above noted discrepancies/ contradictions, does not strike at the root of the prosecution case. Therefore, they do not make the prosecution case doubtful.
Defence Evidence :
84. It is submitted that the story of the prosecution is also falsified from the deposition of DW-1 Ms. Shalu, wife of FIR No. 1149/2015 State Vs. Deepak Page No. 73 of 78 SC No. 58112/2016, PS Punjabi Bagh the accused who was present with the accused when his car met with an accident with a tanker on 02.11.2015 between 11.30/11.45 p.m. near Punjabi Bagh. This witness has also deposed that due to accident with the said tanker, airbags of their said car were opened and their car could not start due to which they reached their home by hiring an auto rickshaw. Accused/her husband also took some liquor at home for relaxing himself.
Around 4.30/5.00 a.m. her husband received a phone call from police station regarding accident of their car. She along with her husband went to the police station and her husband/accused disclosed the fact about the accident of his car with the said tanker. But the police did not believe the same and arrested her husband after his medical examination.
85. This witness during her cross-examination has admitted that she did not notice registration number of the said tanker at the time of accident. Her husband did not make any call either to the police or any other relative or friend from the spot after the accident. No mechanic was called on the spot for repairing their car. The door of the car was easily opened after the accident. She did not remember if the door of the car was closed after getting down from the same. Neither she nor her husband/accused received any injury in the said accident. Neither she nor her husband/accused took any photograph of their damaged car on the spot. No written complaint was ever filed by her or her husband either before the police or any other authority. The factum of accident with the aforesaid tanker was disclosed by her husband or by her to any authority. No public person gathered at the spot after the accident and she never made FIR No. 1149/2015 State Vs. Deepak Page No. 74 of 78 SC No. 58112/2016, PS Punjabi Bagh any complaint regarding the false implication of her husband in the present case.
86. When appreciating the aforesaid testimony of DW-1 it is clear that no effort was ever made either by DW-1 or by her husband/accused to make any complaint against the said tanker. No effort was made by them to trace the said tanker by tracing its registration number. No effort was made by them to inform about the said accident either to the police or to their relatives/friends. The opening of the airbags of their car shows the magnitude of the accident between their car and the said tanker but according to her, none of them received any injury in the said accident which seems to be highly improbable. Accused/her husband was carrying the mobile phone at the time of accident, but no effort was made to take the photographs of their accidental car. It is further interesting to note that none of them ever filed any complaint against the said tanker with any authority/police. Although DW-1 is claiming the false implication of her husband in this case, but she had not filed any complaint regarding the same before any authority.
87. The testimony of this witness was recorded after examination of the accused u/s. 313 Cr.P.C., but the accused in his said statement/examination never disclosed anything about the facts which are disclosed by DW-1 in her testimony. He never disclosed about his accident with the said tanker or that his wife/DW-1 was present with him at the time of said accident or that they reached their home from the spot by hiring an auto rickshaw from the spot. He also not disclosed about taking liquor by him after reaching his home. The factum of liquor/alcohol in his breath is duly established from his medical FIR No. 1149/2015 State Vs. Deepak Page No. 75 of 78 SC No. 58112/2016, PS Punjabi Bagh report Ex.PW7/B. The fact that the accused has refused to give his blood sample for detection of the alcohol in his blood is also established but the accused never disclosed the circumstances under which the alcohol was taken by him either to the doctors PW-7, PW-10 and PW-11 at the time of his medical examination.
All these facts cumulatively shows the lack of truth and depth in the testimony of DW-1. These also establishes that deposition of DW-1 is based upon tutoring and meant only for saving the accused from this case.
FINAL CONCLUSION Qua offences u/s. 304 Part-II IPC r/w. Section 185 M.V. Act
88. On the basis of the appreciation of aforesaid deposition of all the prosecution and defence witnesses and applying the aforesaid settled principles of law to the facts of this case, this court hold that the prosecution has successfully traveled the distance from "may be true" to "must be true" so essential for a court to record a finding of guilt. The prosecution has successfully proved its case beyond reasonable doubt against the accused Deepak S/o. Sh. Khoob Ram for the offence punishable u/s. 304 Part-II of IPC as well as u/s. Section 185 of M.V. Act. It is also held that the material brought on record by the prosecution are sufficient to hold the accused Deepak guilty for the aforesaid offences.
Qua offences u/s. 354 IPC
89. However, the accused is also charged for the offence punishable u/s. 354 IPC, but the evidence lead on record are not sufficient to record a finding of guilt against the accused under Section 354 IPC.
FIR No. 1149/2015 State Vs. Deepak Page No. 76 of 78 SC No. 58112/2016, PS Punjabi Bagh It is claimed by PW-1 in her deposition that when she tried to prevent the accused from fleeing from the spot, the accused put his hand on her chest and pushed her due to which she fell down on the road. The accused thereafter sat in his car and tried to start the same. However, the offending vehicle could not be started. PW-1 tried to open the door of the offending car and the accused, with jerk opened the same, due to which she fell down on the road. Thereafter, accused fled away leaving his car on the spot.
This shows that at that time the aim of the accused was only to escape from the spot and he pushed PW-1 only for the purpose of fleeing away from the spot. The said requisite intention required u/s. 354 IPC for convicting a person for outraging the modesty of a woman cannot be attributed to the accused in this case. The said requisite intention is sine-qua-non for recording conviction under this section of Penal Code. Whereas in the present case, accused had pushed PW-1 only once that too only in his design to run away/escape from the spot. There is no other evidence on record except the said deposition of PW-1 qua this allegation. Therefore, this court is of the considered view that the prosecution has failed to prove this charge u/s. 354 IPC against the accused beyond reasonable doubt. Accordingly, accused stands acquitted qua offence punishable u/s. 354 IPC.
90. In view of the aforesaid findings, it can be safely concluded that the prosecution has successfully proved beyond reasonable doubt that the accused on 03.11.2015 at about 2.00 a.m. at Ring Road i.e. on the turn towards Ram Pura from Punjabi Bagh, Delhi was driving his car bearing No. DL10CF 6367 at a very high speed in drunken condition with the knowledge that it is so imminently dangerous to drive the same and it must in all probabilities, causes death or such bodily injury as is likely to FIR No. 1149/2015 State Vs. Deepak Page No. 77 of 78 SC No. 58112/2016, PS Punjabi Bagh cause death but despite his said knowledge the accused continued with his said driving in highly drunken condition and he struck his aforesaid speeding car in his drunken condition against the car No.DL4C NC0390 of the complainant/PW-2 and thereby caused death of Master Bismann Singh S/o. Sushant Jaggi.
91. On the basis of aforesaid discussion, accused is convicted for offence punishable under section 304 Part II of Indian Penal Code read with Section 185 M.V. Act. The accused is acquitted from the offence punishable u/s. 354 IPC. Let he be heard on the point of sentence.
The victim is entitled to be compensated for 'wrong' committed against them in terms of Section 357 and 357A Cr.P.C. and, therefore, in view of directions given by Hon'ble Delhi High Court in the Judgment titled as Karan vs. State of NCT of Delhi - Crl. A. 352/2020, the convict Deepak is hereby directed to file affidavit of his assets and income in the format of 'Annexure A' provided in the aforesaid judgment within 10 days. The State is also directed to disclose the expenses incurred in prosecution of the convict alongwith the supporting documents within 10 days.
Copy of Judgment be supplied to the convict free of cost. Announced in the open court on 14rd day of October, 2023 (Sunil Kumar Sharma) Additional Sessions Judge-09 West:THC:Delhi: 14.10.2023 CERTIFICATE:
It is certified that this judgment contains 78 (Seventy Eight) pages and each page bears my signatures.
(Sunil Kumar Sharma) Additional Sessions Judge-09 West:THC:Delhi: 14.10.2023 FIR No. 1149/2015 State Vs. Deepak Page No. 78 of 78 SC No. 58112/2016, PS Punjabi Bagh