Delhi District Court
State vs Mohd. Rafiq on 5 April, 2024
IN THE COURT OF SH. APOORV GUPTA, MM02,
CENTRAL DISTRICT, TIS HAZARI COURT, DELHI
STATE VS. MOHD. RAFIQ & ANR.
FIR No. 278 / 2012
POLICE STATION TIMAR PUR
U/S 279 / 337 / 338 / 420 / 468 / 471 / 34 IPC
Date of institution of the case : 28.02.2014
Date of judgment reserved : 06.03.2024
CNR : DLCT020047652014
Date of commission of offence : 15.12.2012
Name of the complainant : Sh. Bijender
Name and address of accused : (1) MOHD. RAFIQ
S/o Mohd. Islam
R/o E46, Gali No.1, Sonia Vihar,
Delhi.
(2) SANJAY
S/o Sh. Ramji Prasad
R/o Dhobi Ghat No.9, Minot Road,
Prem Palace, Jahagir Marg,
Delhi.
Offence complained of : Section 279/337/338/420/468/471/34 IPC
Plea of the accused : Pleaded not guilty
Date of Judgment : 05.04.2024
Final order : (i) Mohd. Rafiq is convicted for offence
U/s 279/337/338 IPC.
(ii) Sanjay convicted for offence U/s 420/471
IPC and acquitted for offence U/s 468 IPC.
STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 1 / 26
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.04.05
13:08:32 +0530
JUDGMENT
CASE OF THE PROSECUTION :
1. The prosecution story in nutshell is that on 15.12.2012 at about 07:15 AM under Wazirabad flyover, Wazirabad chowk, Delhi, within the jurisdiction of Police Station Timarpur, accused was driving DVan bearing registration no. DL 1LF4370, belonging to accused Sanjay, in rash and negligent manner so as to endanger human life and personal safety of others. While driving in aforesaid manner, accused Mohd. Rafiq hit the van against motorcycle bearing registration no.
DL5SAJ2712 as a result of which complainant/ Bijender received grievous injuries and his wife Smt. Sunita received simple injuries. Thus, accused Mohd. Rafiq committed an offence punishable under Section 279/337/338 IPC. The insurance policy certificate was found forged and thereby accused Sanjay committed an offence punishable under Section 420/468/471 IPC.
COURT PROCEEDINGS :
2. Investigation was completed and police report under Section 173 Cr.P.C was filed for the commission of offences punishable under Sections 279/337/338/420/468/471/34 IPC. Cognizance was taken and accused persons were summoned. Provisions of Section 207 Cr.P.C. were complied with after appearance of both the accused.
CHARGE :
3. After hearing arguments on point of charge, notice U/s 251 Cr.P.C. for offence under Section 279/337/338 IPC was framed against accused Mohd. Rafiq to STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 2 / 26 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.04.05 13:08:37 +0530 which he pleaded not guilty and claimed trial. Separate charge for offence under Section 420/468/471 IPC was framed against accused Sanjay to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION :
4. In order to substantiate its case, the prosecution has examined seventeen witnesses.
5. PW1 Bijender is the complainant. He has deposed that on 15.12.12, at about 07:15 AM, he alongwith his wife Sunita Pal were going towards the house on his motorcycle bearing registration no. DL5SAJ2712 and when they reached under the fly over of Wazirabad Chowk, immediately one D Van No. 4370 (green colour) came from the side of Sur Ghat. The driver of the van was driving the van at a very high speed and in a rash manner. The approximate speed of the van was about 5060 Km per hour. The driver of the van immediately accelerated the speed of the van near the slope at the red light and directly hit his motorcycle on his right hand side. Due to impact, he alongwith his wife fell on the ground and he got fracture in his right leg.
His wife also sustained injuries and she became unconscious on the spot. The driver of the van came out from the van and tried to flee away from the spot. He saw the face of the driver on the spot. One traffic Constable who was also present on the spot successfully apprehended the accused on the spot in his presence. One public person namely Parnesh shifted him and his wife to Trauma Centre from the spot. Police officials met him in the hospital where his statement Ex. PW1/A was recorded. He correctly identified the accused and DVan but forget full registration number of D Van due to lapse of time.
STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 3 / 26
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.04.05
13:08:43 +0530
6. PW2 Sunita is the wife of complainant. She has deposed that on 15.12.2012 she alongwith her husband on their motorcycle Hero Honda Passion bearing registration no. 2712 were going from Timarpur to Dayalpur. At about 07.15 AM when they reached near Wazirabad Tpoint under Wazirabad flyover one DVan bearing registration no. 4370 came from their right side and driver of the same was driving the vehicle in rash and negligent manner and at high speed and hit their motorcycle from right side. They fell down and got injured. Driver of the offending vehicle attempted to flee away however he was apprehended by the traffic police. One traffic police man and one private van driver picked up and shifted them to Trauma Center. They were given preliminary treatment there and thereafter they went to private hospital. Police recorded her statement at Trauma Center. After the accident her husband has also fallen down. She became unconscious. She identified both the accused but stated that she was not sure as to which of the two persons was driving the DVan at the time of accident. She was crossexamined by Ld. APP for the State but she failed to identify the accused. She correctly identified the offending vehicle / DVan as DL1LF4370.
7. PW3 Parvesh Kumar has deposed that on 15.12.12 he was coming from the side of Burari in his Van No. DL2CAL9975. At about 07:15 to 07:30 AM when he reached near Wazirabad fly over, he saw there was accident between one motorcycle and green colour champion type/Dvan vehicle. One lady and one gents on motorcycle were in injured condition. He stopped his vehicle and offered water to injured persons. With the help of 12 passerby he got shifted them to trauma centre. Lady's foot was bent due to the injury.
8. PW4 Sayok Bandyopadhyay has been authorised by Sahil Gupta vide authorization letter dated 16.01.2020 Ex. PW4/A. The insurance policy number STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 4 / 26 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.04.05 13:09:03 +0530 0325884024587125632 of vehicle of Delivery van bearing no. DL1LF4370 was received in the office for verification. On verification, it was found that the said insurance policy was never insured with Reliance General Insurance Company Limited in the name of owner of vehicle i.e. Sanjay. The insurance company issued policy number in sixteen digits whereas the insurance policy at hand contains policy number having 19 digits. The insurance policy document is Ex. PW4/B. The endorsement on the policy document bears that the policy is fake and forged and no record was found with respect to the policy in the record. The endorsement Ex. PW 4/C is made by Service Manager, Prerna Arora, Branch Vikas Marg, Laxmi Nagar, Delhi. The injured Bijender and his wife Sunita has filed MACT claim vide case No. 593/14 in which the court exonerated The Reliance General Insurance Company Limited from its liability to pay compensation to them. Copy of the award passed by the MACT Court dated 12.03.2015 is Mark A. The insurance company has also filed a complaint Mark B of fraud and cheating to DCP, South East with respect to the aforesaid insurance policy.
9. PW5 Dr. Mohd. Ashfak Khan identified handwriting and signature of Dr. Divyajyoti as he has seen him writing and signing on the documents which were prepared by him during the course of his duties. MLC No. 158292 pertaining to one Sunita is Ex.PW5/A on which Dr. Divyajyoti has opined that the nature of injury was simple.
10. PW6 Anil Kumar identified handwriting and signature of Dr. Ravikant as he has seen him writing and signing during the course of his duties. Medical examination No. 158292 pertaining to one Sunita is Ex. PW5/A on which Dr. Ravikant opined that the nature of injury was simple.
STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 5 / 26
Digitally signed by
APOORV APOORV GUPTA
GUPTA Date: 2024.04.05
13:09:08 +0530
11. PW7 Vinod Kumar identified handwriting and signature of Dr. Sunil as he has seen him writing and signing during the course of his duties. XRay report CR No. 158291 prepared by Dr. Sunil is Ex. PW7/A.
12. PW8 Purushottam is the SPA holder of the motorcycle bearing no. DL 5SAJ2712 which was executed by Bijender Singh Pal, who was the registered owner of the motorcycle. SPA is Ex. PW8/A. He got released the motorcycle on superdari vide superdiginama Ex. PW8/B.
13. PW9 HC Ashwani brought the Register No.19 in which ASI Narender deposited the case property i.e. motorcycle bearing no. DL5SAJ2712 and DVan bearing registration no. DL1LF4370 vide entry no.3742 Ex. PW9/A.
14. PW10 Anil Kumar identified handwriting and signature of Dr. Kaushik Nandi on MLC no. 158291 and MLC No. 158292 as he has seen him writing and signing during the course of his duties. On MLC No. 158291 Ex. PW10/A, Dr. Kaushik opined that nature of injury was greivous and on MLC No. 158292 Ex. PW 5/A, he opined the nature of injury as simple.
15. PW11 ASI Subhkaran joined investigation with ASI Narender and is a witness to arrest of accused Sanjay and other proceedings conducted by the investigating officer.
16. PW12 SI Ganga Bir has deposed that on 15.12.2012 he was working as duty officer. At about 09:15 AM after receiving rukka from Ct. Pradeep sent by ASI Narender FIR Ex. PW12/A registered. He also made endorsement on rukka Ex. PW 12/B and issued certificate U/s 65B of I.E. Act Ex. PW12/C. He also issued DD No. STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 6 / 26 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.04.05 13:09:15 +0530 14A dated 15.12.2012 Ex. PW12/D. After registration of FIR, he handed over the original rukka with copy of FIR to Ct. Pradeep to be handed over to IO/ASI Narender for further investigation.
17. PW13 Anil Kumar identified handwriting and signature of Dr. Amit Gupta on MLC no. 158291 Ex. PW10/A and MLC No. 158292 Ex. PW5/A as he has seen him writing and signing during the course of his duties.
18. PW14 Arvinder Singh has deposed that on 16.12.2012, on the request of ASI Narender Singh, he conducted the mechanical inspection of motorcycle bearing registration no. DL5SAJ2712 and prepared report Ex. PW14/A. He also conducted mechanical inspection of DVan bearing registration no. DL1LF4370 and prepared report Ex. PW14/B.
19. PW15 Ct. Pradeep Kumar joined investigation with ASI Narender and took rukka to police station for registration of FIR. He is a witness to arrest of accused Mohd. Rafiq and other proceedings conducted by the investigating officer.
20. PW16 Ct. Ramdev has deposed that on 15.12.2012 his duty was at T Point Wazirabad. During the course of his duty, he observed that at about 07:15 AM, DVan bearing no. DL1LF4370 was coming in rash and negligent manner from the side of Wazirabad Flyover and hit a motorcycle bearing no. DL5SAJ2712 coming from the side of Timar Pur. Due to impact, the rider (male), pillion rider (female) of motorcycle and motorcycle fell on the road and both the riders of motorcycle suffered injuries. Injured persons were shifted to hospital in private vehicle. He apprehended the driver of DVan alongwith his DVan. He took the driving license of accused and registration certificate of offending vehicle. Investigating officer reached at the spot.
STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 7 / 26
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.04.05
13:09:20 +0530
He handed over the accused, accidental motorcycle, offending DVan, driving license of accused and registration certificate of offending vehicle to investigating officer. Accused was arrested vide arrest memo Ex. PW15/C and he was personally searched vide memo Ex. PW15/D.
21. PW17 ASI Narender Singh is the investigating officer. He has deposed that on 15.12.2012 after receiving DD no. 14A regarding the accident he along with Ct. Pradeep reached at the spot i.e. redlight, Wazirabad chowk. Ct. Ramdev handed over the custody of accused Rafiq and told him that he had caused the accident by the Dvan bearing registration no. DL1LF4370 and the injured had been shifted to the trauma center in a private vehicle. He handed over the custody of the accused Rafiq to Ct. Pradeep and asked him to preserve the spot. He went to the trauma center and met injured Bijender and Sunita. He collected the MLCs of both injured persons. Statement of injured Bijender Ex. PW1/A was recorded. Tehrir Ex. PW17/A was prepared and same was handed over to Ct. Pradeep for getting the FIR registered. Accused Rafiq was arrested vide arrest memo Ex. PW15/C and also conducted his personal search vide memo Ex. PW15/D. Accidental motorcycle bearing registration no. DL5SAJ2712 was seized vide seizure memo Ex. PW15/A. Dvan bearing registration no. DL1LF4370 was seized vide seizure memo Ex. PW15/B. Driving License of the accused was seized vide seizure memo Ex. PW15/E. Documents of Dvan were seized vide seizure memo Ex. PW15/F. Notice U/s 133 M.V. Act was served upon the owner of the offending vehicle and the noticecumreply of the owner are Ex. PW17/B. Site plan Ex. PW17/C was prepared. Case property was deposited in the malkhana. Mechanical inspection of the aforesaid accidental motorcycle and DVan were conducted and the reports are Ex. PW14/A and Ex. PW14/B. He also got verified from the concerned authorities the documents of the offending vehicle and the Driving License of the accused vide applications Ex. PW STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 8 / 26 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2024.04.05 13:09:27 +0530 17/D, Ex. PW17/E and Ex. PW17/F. After verification, it was found that the insurance of the Dvan was fake and relevant sections were added. Owner of the D van namely Sanjay was arrested vide arrest memo Ex. PW11/A and his personal search was conducted vide memo Ex. PW11/B. His disclosure statement Ex. PW 11/C was recorded. After completing formalities he filed the chargesheet.
STATEMENT / DEFENCE OF THE ACCUSED :
22. After conclusion of this evidence, the prosecution evidence was closed and the statement of the accused persons under Section 313 Cr.P.C. was recorded.
22.1 In his statement under Section 313 Cr.P.C., accused Sanjay stated that he had given DVan to driver Mohd. Rafiq on rent and went to his native place as his father had expired. He remained there for about 1 year. He could not say how Mohd. Rafiq procured the alleged insurance policy. He was called by the investigating officer and was forced to sign certain papers without interrogation. He signed the documents out of fear of being beaten. He alleged false implication in the present case. He chose to not lead evidence in his defence.
22.2 In his statement under Section 313 Cr.P.C., accused Mohd. Rafiq admitted :
(I) He was driving DVan bearing registration no. DL1LF4370 but at a slow speed due to red light.
(II) He was arrested by PW17 ASI Narender Singh vide memo Ex.PW15/C and his personal search was conducted vide personal search memo Ex.PW15/D. (III) PW17 ASI Narender Singh seized the motorcycle bearing registration no. DL5SAJ2712 vide seizure memo Ex. PW15/A and also seized the offending D Van bearing registration no. DL1LF4370 and its documents vide seizure memos STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 9 / 26 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.04.05 13:09:33 +0530 Ex.PW15/B and Ex.PW15/F. His driving license was also seized vide memo Ex.PW15/E. According to him he shifted injured to trauma centre with the help of helper. He pleaded innocence and alleged false implication in the present case. He chose to lead evidence in his defence.
23. Letan Vishwakarma was examined as DW1. He deposed that he was working as a helper of Mohd. Rafiq in 2012. They were coming from Sonia Vihar and a motorcycle was lying on the road. They helped the injured and made them sit on the footpath. Police officials took the injured persons to the hospital and took the driver Mohd. Rafiq to the PS Timar Pur. The aforesaid accident was not caused by them.
24. The respective submissions of Sh. Deepak, Ld. Assistant Public Prosecutor for the State, Sh. R.B.Singh, Ld. counsel for the accused Mohd. Rafiq and Sh. Amresh Kumar, Ld. Legal Aid Counsel for the accused Sanjay have been considered. The record has been thoroughly and carefully perused.
25. It is argued by the Ld. APP for the State that State has proved its case beyond reasonable doubt. Accident and injury to Bijender and Sunita was caused due to the rash and negligent act of the accused Mohd. Rafiq. Further, in order to cheat the government accused Sanjay had prepared fake insurance policy. On the other hand, it is argued by Ld. Counsel for the accused persons that there are contradictions in the testimony of the prosecution witnesses. It has also been submitted that no public witness has been joined at anytime during investigation. The accused persons are innocent and have been falsely implicated in this case.
STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 10 / 26
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.04.05
13:09:39 +0530
ANALYSIS AND FINDINGS :
26. Allegations against the accused Mohd. Rafiq are for offence under Section 279/337/338 IPC.
27. Section 279 IPC provides that "Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both".
28. Section 337 IPC provides that "Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both".
29. Section 338 IPC provides that "Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both".
30. In order to prove the case against the accused, the prosecution was under
the obligation to prove the following essential ingredients of the offence punishable u/s 279/337/338 IPC:
a. Identity of the accused being the driver of the offending vehicle.
STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 11 / 26
Digitally signed by
APOORV APOORV GUPTA
GUPTA Date: 2024.04.05
13:09:45 +0530
b. That the alleged accident is the result of rash and negligent driving of the accused at a public place.
c. The rash and negligent driving of the accused resulted in injury to Bijender and Sunita.
RE: IDENTITY OF THE ACCUSED :
31. Material witnesses in regard to identity of accused are PW1 Bijender and PW16 Ct. Ramdev. Accused is identified by the eye witnesses PW1 Bijender and PW16 Ct. Ramdev to be the person who was driving the offending vehicle at the time of incident. Their testimony in this regard goes unchallenged and unrebutted as even no suggestion was given to these witnesses that accused was not driving the offending vehicle which caused the accident. Rather in his statement recorded under Section 313 Cr.P.C, accused has admitted he was driving the offending vehicle at the time of accident. Thus, it stand proved that accused was the driver of the offending vehicle which caused the accident.
RE: ALLEGED ACCIDENT IS THE RESULT OF RASH AND NEGLIGENT DRIVING OF THE ACCUSED AT A PUBLIC PLACE.
32. It has come in the statement of PW1 Bijender that on 15.12.12, at about 07:15 AM, he alongwith his wife Sunita Pal were going towards the house on his motorcycle bearing registration no. DL5SAJ2712 and when they reached under the fly over of Wazirabad Chowk, immediately one D Van No. 4370 (green colour) came from the side of Sur Ghat. The driver of the van was driving the van at a very high speed and in a rash manner. The approximate speed of the van was about 5060 Km per hour. The driver of the van immediately accelerated the speed of the van near the slope at the red light and directly hit his motorcycle on his right hand side. Due to impact, he alongwith his wife fell on the ground and he got fracture in his right leg.
STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 12 / 26
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.04.05
13:09:52 +0530
His wife also sustained injuries and she become unconscious on the spot. The driver of the van came out from the van and tried to flee away from the spot. He saw the face of the driver on the spot. One traffic Constable who was also present on the spot successfully apprehended the accused on the spot in his presence. One public person namely Parnesh shifted him and his wife to Trauma Centre from the spot. Police officials met him in the hospital where his statement Ex. PW1/A was recorded.
33. His testimony finds substantial corroboration from PW2 Sunita in regard to the manner in which accident took place. She could not positively indentify the accused as such was cross examined by Ld. APP for the State wherein she failed to identify the accused but correctly identified the offending vehicle / DVan bearing registartion number DL1LF4370.
34. Mere fact that PW2 was declared hostile by Ld. APP for the State does not mean that her testimony is to be discarded altogether. Law regarding hostile witness is well settled. In Sathya Narayanan Vs. State rep. by Inspector of Police, (2012) 12 SCC 627, Hon'ble Supreme Court referred to its earlier decision rendered in Mrinal Das & Others. Vs. State of Tripura, (2011) 9 SCC 479 where while reiterating that corroborated part of evidence of hostile witness regarding commission of offence is admissible, it was held as under : "67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to crossexamine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the Court has to be very careful, as prima facie, a witness who makes different statements at different times, STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 13 / 26 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.04.05 13:09:58 +0530 has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The Court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."
35. The law is now well settled that even if a witness does not wholly support the case of the prosecution his testimony is not to be discarded altogether, and that part of the testimony of the witness can be considered and relied upon as supports the case of prosecution. It is the consistent view taken by Hon'ble Apex Court and Hon'ble High Courts that the fact that the witness has been declared hostile at the instance of public prosecutor and was allowed to be crossexamined furnishes no justification for rejecting en block the evidence of the witness. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof, as held in number of judgments viz. State of Gujarat Vs. Anirudh Singh and Anr., (1997) 6 SCC 514; Radha Mohan Singh @ Lal Sahib and Ors. Vs. State of U.P., (2006) 2 SCC 450; Mahesh Vs. State of Maharastra, (2008) 13 SCC 271; Rajender and Anr. Vs. State of U.P., (2009) 13 SCC 480; Govindapa STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 14 / 26 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.04.05 13:10:05 +0530 and Anr. Vs. State of Karnataka, (2010) 6 SCC 533; Paramjit Singh @ Pamma Vs. State of Uttrakhand, AIR 2011 SC 200; Rameshbhai Moahanbhai Koli and Ors. Vs. State of Gujarat, (2011) 3 SCC (Cri) 102; Koli Lakhmanbhai Chanabhai Vs. State of Gujarat, (1999) 8 SCC 624; Prithi Vs. State of Haryana, (2010) 8 SCC 536 and Ramesh Harijan Vs. State of Uttar Pradesh, (2012) 5 SCC 777.
36. The law regarding injured witness is by now well settled. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.
"Convincing evidence is required to discredit an injured witness". (Vide Ramlagan Singh & Ors. Vs. State of Bihar, AIR 1972 SC 2593; Malkhan Singh & Anr. Vs. State of Uttar Pradesh, AIR 1975 SC 12; Machhi Singh & Ors. Vs. State of Punjab, AIR 1983 SC 957; Appabhai & Anr. Vs. State of Gujarat, AIR 1988 SC 696; Bonkya alias Bharat Shivaji Mane & Ors. Vs. State of Maharashtra, (1995) 6 SCC 447; Mohar & Anr. Vs. State of Uttar Pradesh, (2002) 7 SCC 606; Dinesh Kumar Vs. State of Rajasthan, (2008) 8 SCC 270; Vishnu & Ors. Vs. State of Rajasthan, (2009) 10 SCC 477; Annareddy Sambasiva Reddy & Ors. Vs. State of Andhra Pradesh, AIR 2009 SC 2261; Balraje @ Trimbak Vs. State of Maharashtra, (2010) 6 SCC 673); Shivalingappa Kallayanappa Vs. State of Karnataka, 1994 Supp (3) SCC 235; State of U.P. Vs. Kishan Chand, (2004) 7 SCC 629; Krishan Vs. State of Haryana, (2006) 12 SCC 459).
37. Similar view was taken by Hon'ble Apex Court in the latest pronouncement reported as Balu Sudamkhalde and another Vs. The State of STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 15 / 26 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.04.05 13:10:11 +0530 Maharashtra Crl. Appeal No. 1910 of 2010 decided on 29.03.2023 where it was observed as under: "26. When the evidence of an injured eyewitness is to be appreciated, the undernoted legal principles enunciated by the Courts are required to be kept in mind.
a) The presence of an injured eyewitness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 16 / 26
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.04.05
13:10:24 +0530
27. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
38. The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
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APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.04.05
13:10:30 +0530
39. In Vadivelu Thevar Vs. The State of Madras, 1957 AIR 614 the Hon'ble Supreme Court says:
"11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that "no particular number of witnesses shall, in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134 quoted above. The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted".
Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 18 / 26 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.04.05 13:10:36 +0530 plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. 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.
12. 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, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 19 / 26 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.04.05 13:10:41 +0530 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. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 20 / 26
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.04.05
13:10:47 +0530
40. In the present case, the fact that there are two injured eyewitnesses, viz. PW1 and PW2 who gave clear, consistent and convincing testimonies as regards the role of the accused in the offence, is more than sufficient to bring home guilt of the accused.
41. It is pertinent to note that nothing material has come out from cross examination of these witnesses as even no suggestion was given that accused was not driving the vehicle in rash and negligent manner or did not cause accident. As such their testimony goes unrebutted and unchallenged. It was held in Niranjan Singh Vs. The State (Delhi Administration) 1977 CriLJ 333 held that Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand is the gross and culpable neglect or failure to exercise that reasonable or proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Thus the main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed of the offending vehicle but deliberate disregard to the obligation of its driver to drive with due care and attention and taking a risk indifference as to the harmful consequences resulting from it. In a case of this nature, the test is whether the prosecution has proved that:
(i) the accused was driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or doing substantial damage to the property;
STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 21 / 26 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.04.05 13:10:52 +0530
(ii) in driving the vehicle in that manner the accused did so without having given any thought to the possibility of there being any such risk or, having recognized that there was some risk involved, had nonetheless gone on to take it; and
(iii) the rash or negligent act of the accused was the proximate cause of the death of the deceased.
42. Moreover, testimony of PW1 and PW2 finds corroboration from PW 16 Ct. Ramdev, who has also deposed that on 15.12.2012 his duty was at TPoint Wazirabad. During the course of his duty, he observed that at about 07:15 AM, D Van bearing no. DL1LF4370 was coming in rash and negligent manner from the side of Wazirabad Flyover and hit a motorcycle bearing no. DL5SAJ2712 coming from the side of Timar Pur. Due to impact, the rider (male), pillion rider (female) of motorcycle and motorcycle fell on the road and both the riders of motorcycle suffered injuries. Injured persons were shifted to hospital in private vehicle. He apprehended the driver of DVan alongwith his DVan. Investigating officer reached at the spot and he handed over the accused, accidental motorcycle, offending DVan, driving license of accused and registration certificate of offending vehicle to investigating officer. Accused was arrested vide arrest memo Ex. PW15/C and he was personally searched vide memo Ex. PW15/D.
43. The ocular testimony of these witnesses finds corroboration from other surrounding circumstances. Pursuant to the application moved by IO, PW14 Arvinder Singh mechanically inspected DVan bearing registration no. DL1LF4370 and prepared the following report Ex.PW14/B:
"Part I Fresh damages
Front R/side body jaal dented and scratched.
STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 22 / 26
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.04.05
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Part II Mechanical System
Engine - ok, Brake - ok, steering - ok, H/L and Horn - ok, Vehicle fit for road test"
He also conducted mechanical inspection of motorcycle bearing registration no. DL5SAJ2712 and prepared the following report Ex. PW14/A:
"Part I Fresh damages
Front Leg guard R/side bended
R/side body cover broken
L/side H/light scratched
L/side leg guard scratched
L/side body cover broken and dislocated
L/side greep cover scratched
Part II Mechanical System
Engine - ok, Brake - ok, steering - ok, H/L and Horn - ok, Vehicle fit for road test"
44. Accused has pleaded his false implication in this case. According to him, no accident took place with his vehicle. He had shifted the injured to hospital with the help of his helper. He also examined his helper as DW1. However, the same does not inspire confidence as it has come in the statement of PW3 Parvesh Kumar that when he reached near Wazirabad flyover in his van he saw that there was accident between Dvan and motorcycle. One lady and gents on the motorcycle were in injured condition. He stopped his vehicle, offered water to them and then shifted them to trauma centre. His testimony finds corroboration from PW1 and PW2 and MLC Ex. PW10/A of Bijender and Ex. PW5/A of Sunita where in the column of "name of relative/friend" who brought the injured to hospital, name of Parvesh STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 23 / 26 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.04.05 13:11:04 +0530 Kumar is mentioned. Moreover, he is not alleging any enmity, illwill or grudge against any of the prosecution witness for which they will falsely implicate him in this case.
45. Further the ocular evidence find corroboration from medical evidence. It stands proved from MLCs of PW1 Vijender Ex. PW10/A and PW2 Sunita Ex.PW5/A that they have received grievous injury and simple injury respectively. Medical evidence comprised in the MLCs is also consistent and points conclusively towards guilt of the accused.
46. Thus, it stands proved that accused was driving the vehicle in a rash and negligent manner and death of the deceased is the direct cause of the act of the accused.
47. Result of aforesaid discussion is that, it stands proved that it was the accused who was driving offending Dvan in a rash and negligent manner on the fateful day and time resulting in grievous injury to PW1 and simple injury to PW2. As such offence u/s 279/337/338 IPC stands proved.
48. Now coming to charge u/s 420/468/471 IPC against accused Sanjay.
49. During the course of investigation documents of the offending vehicle were seized by PW17 ASI Narender Singh. After verification, it was found that insurance of Dvan was fake. It has come in the statement of PW4 Sayok Bandyopadhyay that the insurance policy number 0325884024587125632 of vehicle of Delivery van bearing no. DL1LF4370 was received in the office for verification. On verification, it was found that the said insurance policy was never insured with STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 24 / 26 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.04.05 13:11:17 +0530 Reliance General Insurance Company Limited in the name of owner of vehicle i.e. Sanjay. The insurance company issued policy number in sixteen digits whereas the insurance policy at hand contains policy number having 19 digits. The insurance policy document is Ex. PW4/B. The endorsement on the policy document bears that the policy is fake and forged and no record was found with respect to the policy in the record. The endorsement is Ex. PW4/C made by Service Manager, Prerna Arora, Branch Vikas Marg, Laxmi Nagar, Delhi. The injured Bijender and his wife Sunita has filed MACT claim vide case No. 593/14 in which the court exonerated The Reliance General Insurance Company Limited from its liability to pay compensation to them. Copy of the award passed by the MACT Court dated 12.03.2015 is Mark A. The insurance company has also filed a complaint Mark B of fraud and cheating to DCP, South East with respect to the aforesaid insurance policy.
50. Further perusal of award dated 12.03.2015 provides "In order to substantiate its claim, it examined its officer as R3W1. He has proved the copies of formats for different insurance company vide Ex. R3W1/1, the DAR Ex. R3W1/2 and copy of complaint to DCP south East vide Ex. R3W1/3. The copies of the insurance policy format Ex. R3W1/1 depicts that the insurance policies issued by them contain sixteen digits numbers whereas the copy of insurance policy alongwith its verification report filed by the IO alongwith DAR contains the nineteen digits number with the report that policy is fake and no record of the policy has been found in the office of insurance company."
51. Accused Sanjay has taken the plea that he had given the DVan on rent to coaccused Mohd. Rafiq and he himself went to village and remained there for one year. He could not say how Mohd. Rafiq procured the alleged insurance policy. This plea is absolutely devoid of merit. He being the owner of the vehicle is responsible STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 25 / 26 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2024.04.05 13:11:23 +0530 for holding valid document of the vehicle. Moreover, the plea taken by him is quite vague as it is not disclosed as to when he had gone to his native village and when policy was procured. As such, it stands proved that it was the accused Sanjay was using the fake insurance policy in order to cheat the government. However, there is no evidence that forgery was committed by accused Sanjay. As such offence u/s 420/471 IPC are proved.
CONCLUSION :
52. Result of aforesaid discussion is that accused Mohd. Rafiq is held guilty and is convicted for offence u/s 279/337/338 IPC whereas accused Sanjay is held guilty and is convicted for offence u/s 420/471 IPC, however, he is acquitted for offence u/s 468 IPC.
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.04.05
13:11:28 +0530
ANNOUNCED IN OPEN COURT (Apoorv Gupta)
ON 05TH APRIL, 2024 MM02, Central District
Tis Hazari Courts/05.04.2024
This judgment consists of 26 pages and each page of this judgment is digitally signed by me.
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2024.04.05
(Apoorv13:11:32
Gupta)+0530
MM02, Central District
Tis Hazari Courts/05.04.2024
STATE VS. MOHD. RAFIQ & ANR. FIR NO. 278 / 2012 PS TIMAR PUR PAGE NO. 26 / 26