Delhi District Court
Jay Singh vs The State on 23 December, 2024
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-007323-2020
Criminal Appeal No.: 167/2020
JAY SINGH,
S/o. Shri. Krishna,
R/o. VPO Ismaila,
District Rohtak,
Haryana. ... APPELLANT
VERSUS
STATE (NCT OF DELHI) ... RESPONDENT
Date of Institution : 27.10.2020
Date when judgment was reserved : 01.10.2024
Date when judgment is pronounced : 23.12.2024
JUDGMENT
1. The present appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973 ( hereinafter, referred to as 'Cr.P.C.') against the judgment dated 23.08.2019 (hereinafter referred to as 'impugned judgment'), passed by the learned Metropolitan Magistrate-11/Ld. MM-11, Central, Tis Hazari Courts, Delhi (hereinafter referred to as the 'Ld. Trial Court/Ld. MM') in case bearing, "State v. Jay Singh, CC No. 301495/2016", arising out of FIR No. 179/2015, P.S. Kasmere Gate, convicting the appellant for the offences punishable under Sections 279/304A of the Indian Penal Code, 1860 ( hereinafter referred to as 'IPC'), and the consequent order of sentence dated 30.09.2020 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court, awarding the appellant; simple imprisonment for a period of 01 (one) month along with fine of Rs. 1,000/- (Rupees One Thousand only), in default of payment of fine, to undergo C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 1 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:56:08 +0530 simple imprisonment for a period of 05 (five) days for the offence under Section 279 IPC; and simple imprisonment for a period of 03 (three) months along with fine of Rs. 10,000/- (Rupees Ten Thousand only), in default of payment of fine, he was further sentenced to undergo simple imprisonment for a period of 05 (five) days for the offence under Section 304A IPC, sentences to run concurrently (hereinafter impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order').
2.1. Succinctly, the case of the prosecution against the appellant is that on 11.04.2015, on receipt of information regarding accident at ISBT vide PCR Call, DD No. 13PP was registered and the concerned police officials proceeded towards the accident spot, i.e., Counter No. 21, ISBT Gate. On reaching there, Haryana Roadways bus bearing no. HR-37C-8462 (hereinafter referred to as the 'offending vehicle') was found in an accident condition. Correspondingly, the font side of the bus, is asserted to be found facing south, while the rear end of the bus was found facing north (Counter No 21 के सामने एक हरियाणा रोड बेज की बस No HR37C8462 Accident शुदा हालत में खड़ी थीं जो बस का अगला हिस्सा दाक्षिण दिशा मे व पिछला हिस्सा उतर दिशा में था). Simultaneously, on the rear side of the said bus, one Rajesh Singhla as well as his father- in-law, namely, Pawan Kumar Bansal were found present in distraught condition. Along with the said persons, one other person, whose name was later on disclosed as Jay Singh (the appellant herein) was found present, who was proclaimed by Sh. Rajesh Singhla as the driver of the offending vehicle. Thereupon, the victim is proclaimed to have been taken to Trauma Centre, where he was declared brought dead. Consequently, statement of Rajesh Singhla, eyewitness of the incident, was recorded by the C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 2 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:56:12 +0530 concerned police officials. In his statement, the said eyewitness/complainant inter alia avowed that on the said day, i.e., on 11.04.2015, he/the complainant along with his father-in-law, Pawan Kumar Bansal (the deceased) had reached at ISBT K. Gate at around 09:45 p.m., to help his father-in-law board the bus to Patiala Punjab. At that point in time, the complainant and the deceased were waiting at Chandigarh counter no. 21 for the bus, destined for Rajpura, Punjab. As per the complainant, one Volvo bus was waiting/standing in front of counter no. 21 and he went near the said bus to enquire about the bus, scheduled to leave for Rajpura, Punjab. In the meanwhile, as per the complainant, his father-in-law started following him and as the complainant started to return, near counter no. 29-30, the driver of one Haryana Roadways bus for Ambala, bearing number, HR-37C-8462, whose name was later on identified as Jay Singh S/o. Shri. Krishan, suddenly backed/reversed the offending vehicle in high speed and hit the deceased with the said bus. The complainant further proclaimed that the deceased fell down in the said process the rear tyre of the offending vehicle ran over the stomach of the deceased. Thereupon, the complainant raised an alarm and pulled out the deceased from underneath the offending vehicle. In the meanwhile, the complainant declared that someone called 100 number, whereupon the police officials reached at the spot. Notably, under said facts and circumstances, the instant FIR came to be registered and the investigation ensued. 2.2. Appositely, upon conclusion of investigation in the instant case, chargesheet was filed before the Ld. Trial Court for the offence under Sections 279/304A IPC. Notably, consequent upon Ld. Trial Court's taking cognizance of the offence on C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 3 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
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03.07.2015, notice in terms of the provisions under 251 Cr.P.C. for the offences under Sections 279/304A IPC was framed against the appellant on 03.03.2016 and the trial commenced. During the course of trial, prosecution examined 09 (nine) witnesses/prosecution witnesses, i.e., PW-1/W/SI Saroj Devi; PW-2/Sh. Rajesh Singla; PW-3/Ct. Ajay Kumar; PW-4/ASI Devraj; PW-5/W/Ct. Manita; PW-6/Virender Singh; PW-7/ASI Jagbir Singh; PW-8/SI Bharat Ratan; and PW-9/SI Omvir Singh. Relevantly, during the course of proceedings before the Ld. Trial Court, the appellant admitted the MLC No. 203008 dated 11.04.2015 (Mark-A); death summary vide CIR No. 78746 (Mark-B) and death certificate no. 78746 ( Mark-C) pertaining to deceased Pawan Kumar, prepared by Dr. D.P. Yadav; post mortem report no. 683/15, dated 11.04.2015 prepared by Dr. A. Bajwa (Mark-D); mechanical inspection report dated 13.04.2015 pertaining to bus no. HR-37C-8462 prepared by Sh. Arvinder Singh; and identity of the offending vehicle, besides admitted that he/the appellant would not dispute the statement under Section 161 Cr.P.C. of PW Rajiv Singh Singhla regarding the identification of dead body pertaining to deceased, namely, Pawan Kumar, in terms of the provisions under Section 294 Cr.P.C. on 05.09.2018. Subsequently, on conclusion of prosecution evidence, recording of statement of the appellant under Section 313/281 Cr.P.C. on 25.07.2019, appellant's leading witnesses in his support, as well as on conclusion of arguments on behalf of the appellant as well as by State, as aforementioned, the Ld. Trial Court vide impugned judgment and order, while holding the appellant guilty of the offences punishable under Sections 279/304A IPC, sentenced him in the manner, as noted hereinabove.
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3.1. Learned Counsel for the appellant vehemently contended that the impugned judgment and order were passed by the Ld. Trial Court on mere conjunctures, surmises and in contravention of the settled principles of law, deserving their setting aside at the outset. In this regard, Ld. Counsel outrightly submitted that the Ld. Trial Court failed to appreciate that in the instant case, there are numerous gaping holes in the case put forth by the prosecution and that the prosecution's story does not inspire any confidence, nor appeals to the senses of a prudent man. It was further submitted that a perusal of the testimony(ies) of the various witnesses, who were examined before the Ld. Trial Court would clearly demonstrate that there are glaring, and material contradictions and the Ld. Trial Court has committed grave error by not considering the same, leading to gross miscarriage of justice to the appellant. In particular, Ld. Counsel fervently argued that the Ld. Trial Court failed to consider that when PW-2/Sh. Rajesh Singal admittedly accompanied the deceased to the Hospital, the reasons for non-specification of PW-2's name under the deceased's MLC is not forthcoming. Even otherwise, as per Ld. Counsel for the appellant, testimony of PW-2 is not reliable and trustworthy for the reason that PW-2's presence on the spot is not proved beyond a pale of doubt, besides PW-2 is an interested witness being related to the deceased. In this regard, Ld. Counsel fervently averred that the reasons for PW-2's not making call at 100 number, despite being in possession of two mobile phones at the relevant point in time is not forthcoming. As per the Ld. Counsel, the prosecution has further failed to prove the presence of PW-2 on the spot by adducing CCTV footage of the cameras installed near the vicinity of alleged place of occurrence. Even C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 5 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:56:25 +0530 otherwise, as per the Ld. Counsel the factum of correct series of incident leading to demise of the deceased is not forthcoming from the MLC or death certificate of Sh. Pawan Kumar. Ld. Counsel further submitted that there is contradiction in so far as PW-3 and PW-7 asserted that PW-2 remained in the Hospital till 02:00 p.m. and thereafter left the Hospital with Ct. Ajay, however, PW-2 deposed that he was called to the police station in the evening on the date of occurrence, where his/PW-2's statement was recorded and site plan, prepared. Ld. Counsel further submitted that PW-2 deposed that two police officials reached at the spot and took the deceased to Trauma Centre, however, nowhere in his deposition, PW-2 affirmed that he went to the Trauma Centre along with the police officials. Ld. Counsel further submitted that the manner of deposition of PW-2 is not natural, unreliable and unworthy of credit, which fact, Ld. Trial Court failed to consider while passing the impugned judgment. In this regard, it was further asserted by the Ld. Counsel that the Ld. Trial Court failed to appreciate that where there is sole material witness in a case, deep scrutiny is required, which is grossly wanting in the present case. It was further submitted that in the instant case, PW-2 was cross examined by Ld. Addl. PP for the State for filling in the dent of deposition of PW-2, without the permission of the Court, despite which, two views remained on record. It was further submitted that there is contradiction even in the deposition of PW-6 and PW-8 in so far as it relates to the issuance of notice under Section 133 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'MV Act') and receipt of information pursuant thereto. 3.2. Learned Counsel for the appellant further contended that the Ld. Trial Court failed to appreciate that as per the C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 6 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:56:28 +0530 statement of PW-2, tyres of the offending vehicle ran over the belly of the deceased and he was removed from underneath the said bus, despite which, as per Ld. Counsel, no dangerous injury is demonstrable on the body of the deceased in his post-mortem report. Even otherwise, the deceased is asserted to be found standing with PW-2 immediately after the incident, belying the case of the prosecution. In this regard, it was further submitted that in case the deceased came under the rear tyre of the offending vehicle, the genital parts as well as the ribs (right and left) of the deceased would have been crushed due to heavy blunt force impact of the offending vehicle, however, as per the Ld. Counsel, as per the documents pertaining to deceased no ribs and genital parts of the deceased are noted to be crushed. It was further submitted that even otherwise, in the instant case neither material witnesses of the accident were examined by the police nor series of investigation steps taken by the police give credence to the testimony of PW-2 in the present case. Ld. Counsel further submitted that the Ld. Trial Court has even failed to consider that the person by whom the first information of the incident was passed on 100 number was not even examined. Further, as per Ld. Counsel, Ld. Trial Court did not even consider that ISBT is a place where so many passengers, drivers, conductors, helpers, officials, etc., remain present in the morning hours, however, the prosecution deliberately opted not to produce any such public persons as witnesses in the instant case. Even otherwise, as per the Ld. Counsel, prosecution even failed to demonstrate from the material on record, reasons for the offending vehicle leaving the spot of incident prior to the admitted scheduled time for departure.
3.3. Learned Counsel further submitted that there are C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 7 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:56:32 +0530 material omissions in the statements/depositions of various witnesses as well as lacunae in the investigation process. In this regard, it was submitted that PW-2, though, admittedly remained with the deceased from 09:45 a.m. to 03:30 p.m., however, he never informed his relatives/friends about the incident. Ld. Counsel further asserted that as per death certificate/Mark-C of the deceased, death of the deceased was resultant due to cardiac arrest, however, in the present case the death should have occasioned due to blunt impact and crushing of vital parts of the deceased's body.
Even otherwise, as per the Ld. Counsel, no blood was seen oozing from the body of the deceased and no intestine/internal organs of the deceased was found oozing out of the deceased's body. Ld. Counsel further strenuously reiterated that there are major contradictions in the deposition of the prosecution witnesses, besides no CCTV camera have been placed on record to support the version put forth by the prosecution. Further as per Ld. Counsel for the appellant there has been a delay in registration of FIR and the material placed on record clearly demonstrate that PW-2 was planted by the police officials to falsely implicate the appellant in the instant case. Ld. Counsel further submitted that the Ld. Trial Court, while passing the impugned judgment failed to consider the testimony of DW-1 in the instant case, being independent witness. As per the Ld. Counsel, the Ld. Trial Court further failed to consider that the appellant was falsely implicated in the present case by wrongful apprehension while he was on his way to Ambala. Ergo, as per the Ld. Counsel the appellant is totally innocent and has been falsely roped in the present case by bias and prejudicial investigation. Further, as per the Ld. Counsel, the investigation in the instant case has been conducted in an C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 8 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:56:36 +0530 extremely shoddy and faulty manner as well as the safeguards provided under the various provisions of law have been utterly disregarded by the police officials to the grave prejudice of the appellant. Further, as per the Ld. Counsel it has not been proved from the material placed on record that the deceased was not negligent at the time of commission of offence. Accordingly, Ld. Counsel submitted that not only did the Ld. Trial Court failed to consider the truth of circumstances and passed its judgment/decision in haste, rather, did not properly appreciate/examine the facts of the present case, wrongly holding the appellant guilty of the aforementioned offences. Further, as per the Ld. Counsel even due and proper consideration/mitigating factors were not considered by the Ld. Trial Court while passing the impugned order/order of sentence in the instant case. Consequently, the Ld. Counsel inter alia prayed that the present appeal be allowed, and the impugned judgment and order be set aside or in the alternate, relaxation be granted, releasing the appellant on probation/ Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as the 'Probation of Offenders Act'). In support of the said contentions, reliance was placed upon the decisions in; Surajmal v. State of Delhi, (1979) 4 SCC 725; Raju v. State of Maharashtra, 1997 SCC (Crl.) 894; Varkey Joseph v. State of Kerala, 1993 Cri.LJ 2010; Jagir Singh v. State (Delhi Administration), 1975 Cri.LJ 1009; Din Dayal v. Raj Kumar @ Raju & Ors., 1999 Cri.LJ 467; Braham Dass v. State of H.P., 2009 Cri.LJ 4297; and Shri. Prakash v. State Govt. of NCT of Delhi, 137 (2007) DLT 119.
4. Per contra, Ld. Addl. PP for the State submitted that the impugned judgment and order were passed by the Ld. Trial C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 9 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:56:41 +0530 Court after due appreciation of the facts and circumstances of the case as well as in consonance with the settled judicial precedents. Ld. Addl. PP for the State further submitted that the testimony of the eyewitness/PW-2 has not only been consistent, rather, unblemished as well as lucidly points towards the only inference of guilt of the appellant. In this regard, it was submitted by the Ld. Addl. PP for the State that it is settled law that conviction can be based on the sole testimony of a witness if it inspires confidence, which in the instant case is sufficiently established from the unwavering testimony of the eyewitness/PW-2. As per the Ld. Addl. PP for the State, the facts and circumstances put forth as well as the evidence placed on record, unerringly point out towards the guilt of the appellant and that no fault can be attributed to the finding of the Ld. Trial Court, which is based on proper appreciation of facts as well as law. Accordingly, Ld. Addl. PP for the State submitted that the present appeal deserves to be dismissed at the outset, as grossly malicious and devoid of merits.
5. The arguments of Ld. Counsel for the appellant as well as that of Ld. Addl. PP for the State have been heard and the record(s), including the Trial Court Record, written submissions filed on behalf of the appellant and the aforenoted case laws, thoroughly perused.
6. At the outset, this Court deems it apposite to enunciate the scope of jurisdiction of this Court in an appeal. In this regard, this Court it is pertinent to outrightly make a reference to the decision of the Hon'ble Supreme Court in Padam Singh v. State of U.P., (2000) 1 SCC 621, wherein the Hon'ble Court, while delving into the 'scope an ambit' of appellate court's jurisdiction inter alia noted as under;
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"2. ... It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court..."
(Emphasis supplied)
7. Correspondingly, the Hon'ble Apex Court in Narendra Bhat v. State of Karnataka, (2009) 17 SCC 785, iterated in respect of the foregoing as under;
"3. This Court has in a series of judgments held that a court exercising appellate power must not only consider questions of law but also questions of fact and in doing so it must subject the evidence to a critical scrutiny. The judgment of the High Court must show that the Court really applied its mind to the facts of the case as particularly when the offence alleged is of a serious nature and may attract a heavy punishment."
(Emphasis supplied)
8. Quite evidently, from a conjoint reading of the aforenoted judicial dictates it can be perspicuously deduced that the jurisdiction of this Court in an appeal extends to reappreciation of the entire material placed on record of the trial court and to arrive at an independent conclusion as to whether the said evidence can be relied upon or not. In fact, as aforenoted, court(s), while exercising appellate power is not required to consider the question of law, rather, also question of facts to affirmatively reach a C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 11 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:56:49 +0530 conclusion of guilt or innocence of an accused. In fact, it is trite law1 that non-re-appreciation of the evidence on record in an appeal may affect the case of either the prosecution or even the accused. Needless to reemphasize that the appellate court is to be further wary of fact that presumption of innocence of an accused, even extents until an accused is held guilty by the final court of appeal and that such a presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.
9. Therefore, being cognizant of the aforesaid principles, however, before proceeding with the determination of the rival contentions of the parties, it would be pertinent to reproduce the relevant provisions under IPC, for the purpose of present adjudication, as under;
"279. Rash driving or riding on a public way- 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.
*** *** *** 304-A. Causing death by negligence-Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
(Emphasis supplied)
10. Notably, it is observed from perusal of the aforesaid provisions that the essential ingredients 2 to constitute an offence punishable under Section 279 IPC are, "there must be rash and negligent driving or riding on a public way and the act must be so 1 State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
2Vinod Kumar v. State, 2011 SCC OnLine Del 4347.
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as to endanger human life or be likely to cause hurt or injury to any person." Concurrently, the Hon'ble High Court of Delhi in Ras Bihari Singh v. State (NCT of Delhi), 2017 SCC Online Del 12290, while explicating the ingredients of the provisions/ offence(s) under Sections 279/304A IPC inter alia observed as under;
"9. To constitute an offence under Section 279 IPC, it must be shown that the person was driving the vehicle in a rash or negligent manner. Criminal negligence or criminal rashness is an important element of the offence under Section 279 IPC.
*** *** ***
11. In a road accident case, to convict a person for the offence punishable under Section 304-A IPC, the prosecution is required to bring on record the basic requirement of the said Section i.e. "Rash or Negligent Act" with following conditions:
1) There must be death of the person in question;
2) that the accused must have caused such death; and
3) that such act of the accused was rash or negligent and that it did not amount to culpable homicide.
*** *** ***
13. Section 304A which deals with unintentional death caused by doing any rash or negligent act of the offender. The applicability of this Section is limited to rash or negligent acts which cause death but fall short of culpable homicide amounting to murder or culpable homicide not amounting to murder. To bring an offence within the ambit of Section 304A, the prosecution is required to bring on record that the act was done by an accused and the death was caused due to rash and negligent act."
(Emphasis supplied)
11. Quite evidently, in order to sustain a conviction under the provisions under Section 279 and Section 304A IPC, the prosecution is inter alia required to prove that the driver of the offending vehicle/the accused was driving the same in a rash or negligent manner and further by doing such an act, rashly or negligent, the offender endangered human life or caused death of C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 13 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:56:57 +0530 any person, respectively. Palpably, rashness or negligence is one of the key ingredients/elements to constitute the offences under the said provisions. In this regard, it is apposite at this stage, to further make a reference to the decision of the Hon'ble Supreme Court in Rathnashalvan v. State of Karnataka, (2007) 3 SCC 474 , wherein the Hon'ble Court, while explicating the contours of the terms, 'rashness' and 'negligence', observed as under;
"7. ...Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted."
(Emphasis supplied)
12. Analogously, the Hon'ble Apex Court, earlier in C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 14 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:57:01 +0530 Mohd. Aynuddin v. State of A.P., (2000) 7 SCC 72, while broaching the meaning/connotation of culpable rashness and culpable negligence, noted as under;
"9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
(Emphasis supplied)
13. Ergo, it is quite intelligible3 that negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations, which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. In contrast, a rash act is a negligent act done precipitately. In fact, it is a settled law4, "Negligence is the genus, of which rashness is the species." Further, rashness consists5 in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. It is trite, the criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Needless to reiterate, under the provisions under Sections 279/304A IPC6, "negligence indicates total negligence on the part of the driver. It means that he was driving the vehicle in such a negligent way which would stamp his driving by only word 3 Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284.
4Prabhakaran v. State of Kerala, (2007) 14 SCC 269.
5S.N. Hussain v. State of A.P., (1972) 3 SCC 18.
6Jayprakash Laxman Tambe v. State of Maharashtra, 2003 SCC OnLine Bom 1176.
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"negligence". Rashness indicates that he drives the vehicle in such a way while driving he knows that by such driving, he is likely to invite an accident but hopes that such accident may not occur."
14. Consequently, being wary of the principles hereinunder noted, this Court would now proceed with the appreciation of the evidence and material placed on record. At the outset, this Court deems it apposite to refer to the deposition/testimony of the complainant/eyewitness/PW-2, Sh. Rajesh Singla, who deposed before the Ld. Trial Court that on 11.04.2015, he/PW-2 along with his/PW-2's father-in-law, namely, Sh. Pawan Kumar Bansal had reached at ISBT as Sh. Bansal had to go to Rajpura, Punjab. Further, as per PW-2, at around 09:45 a.m., he/PW-2 and his father-in-law were standing at Chandigarh bus count no. 21 and waiting for the bus for Rajpura, Punjab. In front of counter no. 21, as per PW-2, one Volvo bus was also parked and he/PW-2 went to the said Volvo bus in order to know the departure time of bus which would proceed to Rajpura, Punjab. Correspondingly, as per PW-2, his/PW-2's father-in-law also went along with him/PW-2 at that time and at the time of returning to counter no. 21, PW-2's father-in-law was behind him. In the meanwhile, as per PW-2, one Haryana Roadways bus bearing no. HR-37C-8462 was reversing very fast and without any conductor or helper as no conductor or helper was outside the bus to guide the driver. In the process of reversing the said bus, PW-2 further deposed that the accused driver of the bus namely Jay Singh, whose name was revealed later on and duly identified by PW-2 in Court, hit the deceased due to which, the deceased fell down. Further, PW-2 asserted that thereafter, the rear tyre of the said bus ran over the deceased. It was further proclaimed by PW-2 C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 16 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:57:11 +0530 that due to the said accident, the persons at the spot shouted and thereafter, accused was again in the process of moving the bus over the deceased and PW-2, immediately, pulled out his father-in- law/deceased, who was lying on the road under said bus. After 4-5 minutes, as per PW-2, two police officials reached at the spot and took his/PW-2's father-in-law in a TSR to the Hospital, where the deceased was declared brought dead. PW-2 further declared that the said accident happened due to the faulty and negligent driving of accused/appellant. Correspondingly, as per PW-2, in the evening, he/PW-2 was called in police station Kashmere Gate and from there, they went to the spot. As per PW-2, the police officials also recorded his statement (Ex. PW2/A), bearing PW-2's signatures at point A. PW-2 further proclaimed that the site plan was also prepared on his directions, as Ex. PW2/B, bearing signatures of PW-2 at point A. Further, as per PW-2, the IO also seized the driving licence of accused/appellant in his/PW-2's presence vide seizure memo, Ex. PW2/C, bearing PW-2's signatures at point A. PW-2 also avowed that the said Haryana Roadways bus was seized by the IO in his/PW-2's presence vide seizure memo, Ex. PW2/D, bearing PW-2's signatures at point A. PW-2 further asserted that the appellant was personally searched and arrested by the IO at around 03:00 p.m. in PW-2's presence vide memos Ex. PW2/E and Ex. PW2/F, both bearing PW-2's signatures at point A, respectively. PW-2 correspondingly, examined the offending vehicle bearing no. HR-37C-8462 from its photographs (Ex. P1 to P7) produced before the Ld. Trial Court. PW-2 also asserted before the Ld. Trial Court that his/PW-2's another statement was recorded in the Trauma Centre by the police official on the basis of which, the FIR was registered and that in his C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 17 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:57:15 +0530 said statement, he/PW-2 had narrated all the facts regarding the incident to the police officials. Further, PW-2 proclaimed that two police officials were with him, when they went to the spot from the Hospital, however, he could not recollect their names due to lapse of time.
15. Relevantly, in his cross examination, PW-3/Sh.
Suhail inter alia affirmed as under;
"XXXXXX by ****, Ld. Counsel for accused. Q. Whether you have purchased any platform ticket for going inside the ISBT Kashmere Gate.
A. No, platform ticket is required for going at the platform.
I had not purchased the ticket as the counter was not open for that particular bus at that time. The schedule time of the Volvo bus was 10- 10:15 am, I do not know the number of the said Volvo bus. My father-in-law was having mobile phone at that time. I do not remember the mobile number at this stage as it was closed after the accident. My first statement was recorded at the trauma centre at around 12 pm . We remained at the trauma centre till 2-2.30 pm after the accident. Thereafter, we again came to the spot and remained there for about 30-45 minutes. I had not made the 100 number call as I was not having mobile phone at that time. It is wrong to suggest that I was not present at the spot on the day of accident. It is also wrong to suggest that my statement was recorded at the police station, and I signed all the documents in the police station at the instance of IO. It is wrong to suggest that I am not eyewitness to the alleged accident. The police officials might have recorded the statement of others, however I am not sure about it. Around 8-10 public persons gathered at the spot after the accident. I am not sure whether some persons are sitting in the bus or not. I had informed the police official stating that no conductor or helper was there with the bus in my statement. Witness is confronted with his statement exhibited PW2/A where it is not so recorded. I had informed the family members in the trauma centre regarding the accident. My brother had come to the Chowki when I made the call regarding the accident from the hospital. I do not remember whether his statement or signatures was obtained by the IO. IO had not recorded statement of any of the C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 18 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:57:19 +0530 police official in my presence. As far as I remember, in my presence no signature of any police official was obtained on the documents which I signed except of the accused. It is wrong to suggest that all the documents were prepared in the PS and signed the same in the PS only. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
16. Germane for the purposes of the present discourse to make a reference to the testimony of PW-3/Ct. Ajay Kumar before the Ld. Trial Court, who asserted that on 11.04.2015 at around 09:55 a.m., DD No. 13PP regarding accident was assigned to HC Jagbir. Further, as per PW-3, on receipt of said DD, he/PW-3 along with the IO went to the spot, i.e., in front of counter no. 21, ISBT, where one Haryana Roadways bus bearing no. HR-37C-8462 was found present in accidental condition, whose front portion was in south direction and the rear end, was in the north direction. Correspondingly, as per PW-3, the complainant, PW-2/Rajesh Singla and his/PW-2's father-in-law, Pawan Kumar Bansal were found present there. It was further asserted by PW-3 that Pawan Kumar Bansal was in injured condition and one person was also standing there, who revealed his name as Jay Singh, upon enquiry. Further, as per PW-3 the said person, Jay Singh disclosed that he was the driver of the bus bearing no. HR-37C-8462, as well as identified the appellant as accused Jay Singh in Court. PW-3 further proclaimed that HC Jagbir was also present at the spot and the custody of the appellant was handed over to him. Thereafter, as per PW-3, HC Jagbir told him/PW-3 to bring the auto/TSR from the out gate of ISBT for taking the injured to the Hospital, whereupon, PW-3 brought the TSR and he/PW-3 noted down the number of the said TSR. PW-3 also asserted that, he/PW-3 along with PW-2/Rajesh Singhla took the injured, namely, Pawan C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 19 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:57:23 +0530 Kumar Bansal to Trauma Center in the said TSR and the concerned Doctor, after checking, declared the injured, namely, Pawan Kumar Bansal as brought dead. At around 10:45 p.m., as per PW-3, HC Jagbir reached in the Hospital and collected the MLC of the deceased, Pawan Kumar Bansal as well as, recorded the statement of PW-2/Rajesh Singhla in the Hospital. PW-3 further avowed that tehrir was prepared on the basis of the said statement and the same was handed over to PW-3 at around 12:00 p.m. for registration of FIR. Thereafter, PW-3 reached the PS at around 12:20 p.m. and got the FIR registered. W/SI Saroj was the duty officer at that time, as per PW-3. Subsequently, as per PW-3, he reached chowki ISBT along with the copy of FIR and original tehrir as further investigation was marked to SI Bharat Ratan. PW-3 further proclaimed that the copy of FIR and original tehrir was handed over to SI Bharat Ratan and subsequently, PW-3 along with SI Bharat Ratan reached Trauma Center. PW-3 further inter alia proclaimed that in order to avoid the traffic jam, the offending vehicle was parked at the side by the accused/appellant and IO/SI Bharat Ratan prepared the site plan at the instance of PW-2/Rajesh Singhla. Markedly, PW-1/W/SI Saroj Devi corroborated the factum of PW-3's reaching the police station with tehrir and registration of FIR consequent thereto. Pertinent to further refer to deposition of PW-5/W/Ct. Manita, who asserted regarding the factum of registration of DD No. 13PP in the instant case pertaining to the receipt of information regarding the accident at Chandigarh Counter, ISBT, Kashmere Gate, which, as per PW-5 was marked to HC Jagbir for taking necessary action on the said DD number/entry.
17. Significantly, for the purpose(s) of present discourse, C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 20 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:57:27 +0530 it is also apposite to refer to the deposition of PW-6/Virender Singh, who asserted that on 11.04.2015, he/PW-6 was posted at ISBT, Kashmere Gate on the post of conductor-cum-stand in- charge of Haryana Roadways and that on the said day, he/PW-6 got information that bus No. HR-37C-8462, which was registered in Haryana Roadways had committed accident at ISBT. PW-6 further asserted that the police official called him/PW-6 to produce the documents of the above mentioned, as well as the information about the driver. Thereafter, as per PW-6, he/PW-6 went to the police force, ISBT and consequently, the police official gave him/PW-6 a notice under Section 133 MV Act. Resultantly, as per PW-6, he/PW-6 produced the duty roster of the driver, Jay Singh; certified copy of RC; fitness certificate and Insurance, which were Ex. PW6/A, Ex. PW6/B and Ex. PW6/C, respectively. PW-6 further asserted that he/PW-6 also produced an affidavit regarding the same. Thereafter, as per PW-6, the police seized the same vide seizure memo, Ex. PW6/D, bearing PW-6's signatures at point A. PW-6 further proved the departure entry of the bus on the day of incident as Ex. PW6/E and the permit of the said bus as Ex. PW6/F. It was further asserted by PW-6 that he/PW-6 also gave duty register of the appellant on the day of incident, which is Ex. PW6/G and further proclaimed that the police seized the same vide seizure memo, Ex. PW6/H, bearing PW-6's signatures at point A and an affidavit which PW-6 had given to the police as Ex. PW6/I, bearing PW-6's signature at point A, seizure memo of the same is Ex. PW6/J. In his cross examination, PW-6 affirmed that the departure time of the bus/offending bus was 10:05 a.m., from the ISBT, Delhi to Ambala. Noticeably, PW-7/ASI Jagbir Singh, in his deposition before the Ld. Trial Court affirmed that on C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 21 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:57:30 +0530 11.04.2015, he/PW-7 was posted as HC at PS Kashmere Gate and on the said day, he/PW-7 was on emergency duty from 08:00 a.m. to 08:00 p.m. at PP ISBT Kashmere Gate. On that day, as per PW-7, W/Ct. Manita told him/PW-7 about the accident at PP Kashmere Gate vide DD no. 13 PP and thereafter, he/PW-7 along with Ct. Ajay visited at the spot , i.e., counter no. 21 and saw that offending bus of Haryana roadways bearing No. HR-37C-8462 was standing at the spot in accidental condition and complainant, namely, Rajesh Singla/PW-2 was also standing at the spot and one injured lying on the ground in accidental condition. PW-7 further proclaimed that the accused/driver, namely, Jai Singh was also standing at the spot ad in the meantime, HC Devraj also reached at the spot. Thereafter, as per PW-7, they shifted the injured, namely, Pawan Singh to the Trauma Center along with Ct. Ajay through auto and he/PW-7 also left for Hospital, leaving the HC Devraj, accused/driver Jay Singh and offending bus at the spot. PW-7 further declared that he collected the MLC of the injured and concerned Doctor told PW-7 that the injured was brought dead.
Thereafter, as per PW-7, he/PW-7 recorded the statement of the complainant, namely, Rajesh Singla, who told them all about the accident and that the said accident had taken place due to rash and negligent driving of the appellant/accused/driver. After recorded the statement of complainant, as per PW-7, he/PW-7 prepared rukka (Ex. PW7/A), bearing PW-7's signatures at point A and handed over to same to Ct. Ajay for registration of FIR. Thereafter, as per PW-7, further investigation was conducted through SI Bharat Ratan. PW-7 further correctly identified the appellant as the accused as well as the case property/offending vehicle from photographs (Ex. P1 to P7), before the Ld. Trial Court. In his cross C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 22 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:57:34 +0530 examination, PW-7 affirmed as under;
"XXXXXX by Sh. ***, Ld. Counsel for accused. I reached at the spot at about 10:00 am but I do not remember that how long time I was remained at the spot. Site plan was prepared in my presence by IO/SI Bharat Ratan. I do not remember if I had signed the said site plan. I recorded the statement of complainant at the hospital. It is wrong to suggest that complainant Rajesh Singla was not present at the spot and I took him at the spot and recorded his false statement later on at PS. It is wrong to suggest that I did not visit at the spot. It is wrong to suggest that all the documents were prepared by the IO at the PS later on or that my signature were obtained at PS later on. It is wrong to suggest that accused/driver was falsely implicated in the present case. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
18. Here, it is further apposite to refer to the testimony of PW-8/SI Bharat Ratan before the Ld. Trial Court, wherein he asserted that on 11.04.2015, he/PW-8 was present at PP ISBT Kashmere Gate and on the said day, Ct. Ajay handed over a copy of FIR and original rukka to him/PW-8 for further investigation. Thereafter, as per PW-8, he/PW-8 went to Trauma Center along with Ct. Ajay and met, HC Jagvir along with the complainant and HC Jagvir handed over, a copy of MLC of the deceased to him/PW-8. PW-8 further proclaimed that subsequently, he/PW-8 along with HC Jagvir, Ct. Ajay and the complainant, namely Rajesh, reached at the spot, i.e., ISBT Kashmere Gate and, he/PW-8 met HC Devraj at counter no. 21, who handed over the accused/driver, namely, Jai Singh/the appellant to PW-8 and told him/PW-8 that he/the appellant was driving the offending vehicle and had committed the accident. Thereafter, as per PW-8, he/PW-8 interrogated the appellant and in the meantime, the concerned depot in-charge of Ambala reached at the spot and he/PW-8 served C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 23 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:57:39 +0530 a notice under Section 133 MV Act (Ex. PW8/A), bearing PW-8's signatures at point A, to the depot in-charge. As per PW-8, the depot in-charge gave his reply, immediately on the said notice, inter alia asserting that as per the roster, the appellant was driving the offending vehicle, besides handed over the duty roster of accused/driver/appellant, which is Ex. PW6/G. Thereafter, PW-8 is proclaimed to have arrested the accused/appellant and conducted his personal search vide Ex. PW2/F and Ex. PW2/A, both bearing PW-8's signatures at point A. PW-8 further proclaimed that he recorded the statements of witnesses under Section 161 Cr.P.C. and subsequently, he/PW-8 along with Ct. Ajay reached the Hospital and collected the death summary of the deceased, as well as shifted the dead body in the Subzi Mandi Mortuary house. On the following day, as per PW-8, he/PW-8 recorded the statements of relative of the deceased, namely, Rajesh Singhla and Rajeev Singhla, who had identified the dead body which were proved as Ex. PW8/B and Ex. PW8/C, both, bearing PW-8's signatures at point A. PW-8 further asserted that he/PW-8 also prepared handing over memo of the dead body of deceased, which is Ex. PW8/D, bearing PW-8's signatures at point A. Correspondingly, as per PW-8, during the investigation, he/PW-8 clicked 07 (seven) photographs of the offending vehicle bearing No. HR-37C-8462, which are Ex. P1 to P7, as well as, got conducted the mechanical inspection of the offending vehicle from Sh. Arvinder Singh, Mechanical expert. Thereafter, as per PW-8, he/PW-8 handed over the present file to the MHC(M) Kashmere Gate for sending the further investigation to MACT Cell North. Markedly, under his cross examination, PW-8 inter alia denied the suggestion that the reply to notice under Section 133 MV Act was C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 24 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:57:44 +0530 tendered by the concerned depot in-charge under his/PW-8's compulsion. PW-8 further denied the suggestion that the complainant, namely, Rajesh Singla was planted by the first IO to give his statement and also that the documents in the instant case were prepared while sitting in the police station. PW-8 further denied the suggestion that the documents of the complainant on all the documents, including the arrest memo and personal search memo of the appellant were obtained later on, at the police station. Relevantly, PW-9/SI Omvir Singh proclaimed that on 17.04.2015, he/PW-9 was posted as a SI at MACT Cell, North and that he/PW-9 was the third IO of the present case. On the said day, as per PW-9, he/PW-9 served notice under Section 91 Cr.P.C. to the licensee authority RTO Rohtak to verify the DL of the accused/appellant (Ex. PW9/A, bearing PW-9's signatures at point A), which was found genuine. PW-9 further proclaimed that he also served another notice to verify the RC and permit under Section 91 Cr.P.C., and that both the documents were found genuine, which are Ex. PW9/B and Ex. PW9/C, both, bearing signatures of PW-9 at point A. PW-9 also asserted that he verified insurance of the offending vehicle from the concerned authority and the same was found genuine. Thereafter, as per PW-9, he/PW-9 prepared the charge sheet and filed it before the court.
19. Conspicuously, in light of the foregoing discussion, this Court would proceed with the determination of the rival contentions on behalf of the appellant and that on behalf of the State. As aforementioned, Ld. Counsel for the appellant has contested the veracity of the testimony of PW-2/Sh. Rajesh Singla, on the ground that he was an interested witness, being related to the deceased. Further, as aforementioned, Ld. Counsel for the C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 25 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:57:48 +0530 appellant has asserted that the complainant/PW-2 has falsely named the appellant as the perpetrator of the alleged incident at the behest of the concerned police officials/IO. However, the said contentions of the Ld. Counsel for the appellant do not find favour with this Court in light of settled law that merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an 'interested witness'. Correspondingly, the superior courts7 have also persistently avowed that relationship is not a factor to affect credibility of a witness as it is more often than not, that a relative would not conceal the actual culprit and make allegations against an innocent person. Reference in this regard is made to the decision of the Hon'ble Supreme Court in State of Maharashtra v. Ahmed Shaikh Babajan, (2009) 14 SCC 267 , wherein the Hon'ble Court, whilst confronted with an akin situation, remarked as under;
"35. Very recently in Ashok Kumar Chaudhary v. State of Bihar [(2008) 12 SCC 173: (2009) 1 SCC (Cri) 339: AIR 2008 SC 2436] this Court had the occasion to deal with the question of creditworthiness of the evidence of the relatives of the victim. On a review of several decisions on the point, including Dalip Singh v. State of Punjab [AIR 1953 SC 364 :
1953 Cri LJ 1465 : 1954 SCR 145] , Masalti v. State of U.P. [AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964) 8 SCR 133] and Rizan v. State of Chhattisgarh [(2003) 2 SCC 661 : 2003 SCC (Cri) 664] , it has been observed that though the Court has to scrutinise such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of the interest of such witness in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterised as an "interested" witness. The term "interested" postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either 7 Rizan v. State of Chhattisgarh, (2003) 2 SCC 661.C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 26 of 46 Digitally signed by ABHISHEK
ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:57:52 +0530 because he had some animus with the accused or for some other oblique motive."
(Emphasis supplied)
20. Apposite in the foregoing context to further refer to the decision in State of Rajasthan v. Kalki, (1981) 2 SCC 752 , wherein the Hon'ble Apex Court, observed in an analogous situation as under;
"7. As mentioned above the High Court has declined to rely on the evidence of PW 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased", and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an "interested" witness. She is related to the deceased. "Related" is not equivalent to "interested". A witness may be called "interested"
only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested". In the instant case PW 1 had no interest in protecting the real culprit, and falsely implicating the respondents."
(Emphasis supplied)
21. Clearly, it is observed from above that mere relationship of a witness with a victim, would not be a factor to be read against the witness as the law is trite that a witness may be labelled as 'interested' only when he/she derives some benefit from the result of litigation. On the contrary, as aforenoted, the superior courts have conscientiously asserted8 a relative would not conceal the actual culprit and make allegations against an innocent 8 S. Sudershan Reddy v. State of A.P. MANU/SC/3139/2006: 2006CriLJ4033; and Kalegura Padma Rao & Ors. v. The State of A.P., rep. by the Public Prosecutor, MANU/SC/7120/2007.
C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 27 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:57:56 +0530
person. In so far as the contention of Ld. Counsel for the appellant pertaining to non-examination of any other public witness, except the deceased's son-in-law/complainant/PW-2 is concerned, this Court is conscious that the law is settled 9 that there is no legal hurdle in convicting a person on the testimony of a single/sole eyewitness if his version is clear and reliable, for the principle of law/rule of evidence is that the evidence has to be weighed and not counted. Relevantly, in this regard, the Hon'ble Supreme Court in Sunil Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367, noted as under;
"9. Vadivelu Thevar case [AIR 1957 SC 614: 1957 Cri LJ 1000] was referred to with approval in the case of Jagdish Prasad v. State of M.P. [1995 SCC (Cri) 160: AIR 1994 SC 1251] This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
(Emphasis supplied)
22. Correspondingly, this Court unambiguous observes that mere fact that the prosecution, opted not to produce the other public persons, asserted to be present or would have been present at ISBT Kasmere Gate at the time of incident as prosecution witnesses before the Ld. Trial Court cannot be read against the prosecution in light of the decision of the Hon'ble Supreme Court 9 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 28 of 46
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2024.12.23
16:58:00
+0530
in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200, wherein the Hon'ble Court in a similar situation, held as under;
"34. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it."
(Emphasis supplied)
23. Ergo, in light of the above, when the testimony of PW-2/Sh. Rajesh Singal is scrupulously analyzed, it is observed PW-2 inter alia deposed about the incident on 11.04.2015, when he/PW-2 and his father-in-law/the deceased had reached at ISBT and were present near counter no. 21, one Haryana Roadways bus bearing no. HR-37C-8462/the offending vehicle was reversing very fast without any conductor and in the process of reversing the bus, the appellant, who was affirmed as the driver of the offending vehicle, firstly, hit the deceased, due to which, he fell down and, "thereafter the rear tyre of the said bus ran over him." PW-2 further proclaimed that due to the accident, the persons at the spot shouted and thereafter, "accused was again in the process of moving the bus over him and I immediately, pulled out my father-in-law who was lying on the road under said bus..." Correspondingly, as per PW-2, after 4-5 minutes, two police officials are asserted to have reached the spot and took, PW-2's father-in-law in a TSR to the Hospital, whereupon, the concerned Doctor in the Hospital declared him/father-in-law, as brought dead. PW-2 further C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 29 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:58:05 +0530 deposed regarding the police officials recording his statements as well as arresting and conducting the personal search of the appellant vide Ex. PW2/F and Ex. PW2/E, respectively. As per PW-2, the police officials also prepared the site plan (Ex. PW2/B) in his/PW-2's presence. Markedly, PW-2 also identified the offending vehicle bearing registration no. HR-37C-8462 from its photographs, as the one which was being driven by the appellant at the time of accident and which had hit PW-2's father-in-law, which were Ex. P-1 to Ex. P-7.
24. Appositely, in order to belie the testimony of PW-2/Sh. Rajesh Singal, Ld. Counsel for the appellant has contended that name of the said witness/complainant/PW-2 does not find mention in the MLC and that PW-2 had not asserted that he did not accompany the deceased to the Hospital. However, the said contentions, do not find much credence in light of the testimony of the prosecution witnesses placed on record. In this regard, this Court outrightly deems it pertinent to note that while preparing the MLC, concerned Doctor is not required to seek information on each and every person, who has accompanied the victim, and it is sufficient that the name of even one of the accompanying persons is specified therein. Clearly, under such circumstances, presence of other persons/witnesses cannot be belied for the sole reason that the name of such person is also not specified under the MLC. In this regard, Court deems it apposite to refer to the decision in Ramesh Kumar & Ors. v. State of Delhi, MANU/DE/2494/2009, wherein the Hon'ble High Court of Delhi, whilst confronted with an akin submission/assertion and repelling the same, noted as under;
C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 30 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:58:10 +0530
"12. We are not impressed with above mentioned submission. So far as first limb of argument is concerned, it is against the facts of the case. Perusal of testimony of PW1 Narender Kumar reveals that he has categorically stated in his cross-examination that the mother of the injured Kamal along with his father and brother had requested him to take the injured to the hospital and he has also stated that all of them sat in a scooter with the injured for going to the hospital. From this, it is apparent that PW8 Shakuntala Devi, mother of the deceased had actually accompanied him to the hospital. PW5 Kishan Lal, father of the deceased, has also confirmed this fact by stating in cross-examination that his wife also accompanied them to the hospital. Non-mention of name of Shakuntala Devi in the MLC is of no consequence. While preparing the MLC, the concerned Doctor is not supposed to seek information about each and every person who had accompanied the deceased, it is suffice to mention the name of any one person who took the deceased to the hospital. Thus, we do not find anything wrong if the Doctor has mentioned the name of complainant Bablu only in the MLC Ex.PW11/A in the column meant for the purpose. Thus, we find no reason to suspect the presence of PW8 Shakuntala Devi at the spot."
(Emphasis supplied)
25. Markedly, in utter variance to the submission on behalf of the appellant regarding PW-2's non presence on the spot at the time of incident, when the testimonies of PW-3/Ct. Ajay and PW-7/ASI Jagbir Singh, are scrupulously analysed, the factum of presence of appellant, complainant and the deceased at the spot of incident and of the offending vehicle being determined to be at the said spot, find credence/support. As aforenoted, both PW-3 and PW-7 affirmed that when they reached at the spot, i.e., ISBT, in front of counter no. 21 on receipt of DD No. 13PP on 11.04.2015, the offending vehicle was found there in accidental condition and the complainant/PW-2 as well as the deceased/Pawan Kumar Bansal along with the appellant were present there. Thereafter, both, PW-3 and PW-7 affirmed that the deceased was shifted to C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 31 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:58:13 +0530 trauma centre in an auto, where PW-3 further affirmed that the deceased was brought dead. Markedly, nothing substantial has come forth under the testimonies of PW-3 and PW-7 to belie their consistent version. On the contrary, as aforenoted, on a thorough appreciation of the testimonies of the said witnesses, the contention of the Ld. Counsel for the appellant pertaining to PW-2's alleged non presence at the spot of incident, appears to a feeble attempt on the part of the appellant to unsuccessfully rebut the prosecution's case against the appellant. Here, it is further pertinent to note here that as per Ld. Counsel for the appellant, PW-2 affirmed that he signed all the documents in the police station and that even his statement was recorded in the police station. However, when the deposition of PW-2 is conscientiously perused, the said contentions do not find favour with this Court. On the contrary, it is observed from the cross examination of PW-2 that he specifically denied the suggestion regarding his statement being recorded at the police station or the same being signed by him in the police station, as otherwise contended by the Ld. Counsel for the appellant. Needless to further mention that this Court is further not convinced with the submission of Ld. Counsel for the appellant that the non-examination of the driver of the Volvo bus from whom the complainant had made enquiry is detrimental to the prosecution's case, as aforenoted, it is not the number of witnesses, rather, the quality of witnesses which is material for adjudication in a case. Needless to reiterate that PW-2, in his deposition before the Ld. Trial Court, has been consistent inter alia as to the manner of commission of offence, identity of the driver as well as that of the offending vehicle, factum of apprehension of the appellant as the driver of the offending vehicle C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 32 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:58:17 +0530 on the date of occurrence, factum of reversing of offending vehicle by the appellant at high speed and of endeavoring to run over the deceased again despite shouts/cry by public, the appellant's apprehension and handing over to the concerned police officials, police officials assisting the deceased being taken to the Hospital and the deceased succumbing to his injuries.
26. Here, this Court deems it further apposite to deal with the contention of Ld. Counsel for the appellant pertaining to the alleged discrepancy/contradiction in the testimony of PW-2 in so far as the complainant is asserted to have specified two mobile phones in his complaint, however, did not assert that he made call to the police officials on the date of the occurrence. However, when the complaint and even PW-2's deposition is analyzed, it is observed that nowhere in his deposition, PW-2 asserted that he was, in fact, in possession/carrying the said mobile numbers on the date of occurrence. On the contrary, upon being questioned, PW-2 in his cross examination specifically asserted that he had not made the 100 number call as he/PW-2 was not carrying his mobile phone at that time. Markedly, despite the same, neither any suggestion was made by/on behalf of the appellant regarding him being in possession of two mobile phones or falsely deposing in this regard in his cross examination, by/on behalf of the appellant. Even otherwise, this Court is conscious of the fact that no universal rule of conduct governs the behavior of the victims/witnesses of incidents. As a matter of fact, it is quite compressible that preceptors of a crime may react differently under such situations10;
"some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have 10 Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417 C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 33 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:58:21 +0530 the courage and conviction come forward either to lodge an FIR or get themselves examined immediately." Concomitantly, law does not prescribe a behavioral pattern to be attributed to a witness/victim to give sanctity to their otherwise consistent deposition. Consequently, while applying the said principles to the facts of the present case, this Court does not find itself convinced with the submission of the Ld. Counsel for the appellant that even if the complainant/PW-2 was carrying two mobile phones, as otherwise contended by the appellant (though not proved from record), mere non-calling 100 number by the complainant, would be sufficient to discard the testimony of the said witness/PW-2 pertaining to the incident in question. On the contrary, it is reiterated that PW-2, in his deposition before the Ld. Trial Court, has been consistent.
27. Notwithstanding the foregoing, in order to unerringly appreciate Ld. Counsel for the appellant's contention pertaining to alleged omission/contradiction in testimony of PW-2, it would be also apposite to iterate and explore the judicial precedents governing the law of contradictions in the testimony of the witness. In this regard, this Court deems it apt to, here, make a reference to the decision of the Hon'ble Supreme Court in State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, wherein the Hon'ble Court inter alia observed as under;
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 34 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:58:25 +0530 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. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible."
(Emphasis supplied)
28. Similarly, in this regard, the Hon'ble Apex Court in Rammi v. State of M.P., (1999) 8 SCC 649, noted as under;
"24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 35 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:58:29 +0530 witness) is an unrealistic approach for judicial scrutiny."
(Emphasis supplied)
29. Evidently, from the conspectus of the above, it is clearly deduced that minor discrepancies, which do not go into the root of the matter and shake the basic version of the witnesses, cannot be permitted to be annexed with any undue weight. In fact, it is trite law11, the discrepancies which do not shake the basic version of the prosecution and those which emanate due to normal errors of perception or observation should not be given importance and must necessarily be discarded. The rationale behind the same is quite obvious, as elucidated by the Hon'ble Supreme Court in State of U.P. v. Naresh, (2011) 4 SCC 324, inter alia recording as under;
"30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." [Ed.: As observed in Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p. 192, para 9.] 11 Appabhai v. State of Gujarat, 1988 Supp SCC 241 C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 36 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:58:33 +0530 Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited..."
(Emphasis supplied)
30. Ergo, to recapitulate, in order to disregard the testimony of a witness, it is imperative that the same is replete with material improvements, contradictions and variation. In contrast, law provides for due concession to marginal variations and normal discrepancies in the statement/testimony of a witness, which are bound to occur due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Consequently, when the testimonies of prosecution witnesses in the instant case are analyzed, mindful of aforenoted revered principles, this Court finds itself difficult to be convinced with the contention of the Ld. Counsel for the appellant that there are any material contradictions to belie the testimony of the said witness. Undoubtedly, PW-2 in his deposition before the Ld. Trial Court affirmed that the appellant was backing the offending vehicle without the assistance of a conductor, which fact he/PW-2 did not affirm in his statement and was confronted on the same, however, same too, in the considered opinion of this Court, not sufficient to discredit the otherwise, consistent testimony of PW-2 inter alia as to the manner of commission of offence, identity of the driver as well as that of the offending vehicle, factum of apprehension of the appellant as the driver of the offending vehicle on the date of occurrence, factum of reversing of offending vehicle by the appellant at high C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 37 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:58:37 +0530 speed and of endeavoring to run over the deceased again despite shouts/cry by public, the appellant's apprehension and handing over to the concerned police officials, police officials assisting the deceased being taken to the Hospital and the deceased succumbing to his injuries, besides PW-2 has withstood the rigors of lengthy cross examination, without anything material forthcoming from the same. Needless to further reiterate that the presence of PW-2 on the spot of incident is affirmed under the testimonies of PW-3 and PW-7. Further, as aforenoted, appellant has failed to demonstrate any motive or intention on either or any of the prosecution witnesses to falsely implicate the appellant in the present case. Correspondingly, the alleged discrepancy in the time specified under the notice Ex. PW8/A i.e. 04.00 p.m. on 11.04.2015 and the arrest of the appellant on 11.04.2015 at 03.15 p.m. is concerned, same too would not, in the considered opinion of this Court, come to the aid of the appellant in the absence of any such question/ suggestion/evidence forthcoming in the testimony of PW-6 or PW-8 as to the time when the notice under Section 133 MV Act was replied by PW-6. Needless to mention, mere mentioning of time in the notice under Section 133 MV Act is not sufficient to draw a presumption that the notice was replied subsequent to the appellant's arrest in the present case.
31. Here, it is further apposite to note that, though, this Court is conscious of the settled law12 that merely driving a vehicle with high speed does not denote driving the vehicle, rashly and negligently. As a corollary, no culpability can be attributed to a driver of a vehicle merely for the reason that the offending was 12 State of Karnataka v. Satish, (1998) 8 SCC 493; Ram Chander v. State, 2017 SCC Online Del 11763; and Narender v. State (Govt. of NCT of Delhi), 2021 SCC Online Del 4729.
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GOYAL Date:
2024.12.23
16:58:40 +0530
being driven in high speed, for the want of clear and unambiguous proof of rashness or negligence on behalf of/by such a person/accused. However, it is equally trite that high speed may amount to rash and negligence driving in certain circumstances, if the evidence in respect of those circumstances is brought on record through the prosecution witness. Reference in this regard is made to the decision of Bombay High Court in Surendra Savlo Gaddi v. State, 2014 SCC OnLine Bom 264, wherein the Hon'ble Court, remarked as under;
"6. The fact of accident is proved by the prosecution. However, whether the accident has occurred due to rash and negligent driving of the petitioner/accused is a question before the Court. Evidence of all the three eye witnesses PW.2, Mr. Jayesh Bugde, PW.3, Mr. Manoj Parab and PW.4, Mr. Prashant Dessai disclose that they were travelling in the bus at the relevant time, bus turtled as the driver was driving the bus in speed and at the turn he was trying to overtake a Maruti van and in this attempt, the bus turned on the driver's side. All the witnesses also suffered injuries. The passengers in the vehicle which meets with an accident are the best witnesses on the point of rash and negligent driving of a driver. It is true that high speed itself cannot be attributed to rashness and negligence. However, high speed may amount to rash and negligence driving in certain circumstances. If evidence in respect of those circumstances is brought on record through the prosecution witness, then Court is required to appreciate driving in high speed on the background of those circumstances. In the present case, the witnesses have brought a particular fact on record that the bus turned on one side when the driver was trying to overtake a Maruti van and secondly this attempt of overtaking was made at the turn. This shows that the petitioner/accused when driving the vehicle at high speed has also indulged into overtaking the vehicle at a turn. The combination of all these circumstances thus attribute rashness and negligence to the accused. The finding given by the learned Sessions Judge that thus the prosecution has established that the accused was rash and negligent is correct and has proved the case under sections 279, 337 and 338 of the I.P.C. Moreever, through out the trial and in the revision the C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 39 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:58:43 +0530 accused adopted a defence that the road was uneven and therefore due to bad road conditions, he lost control over the vehicle. The learned Sessions Judge while marshalling the evidence of the prosecution and considering the defence of the accused has rightly observed that if at all the road was uneven, then it was obligatory on the part of the accused to be slow and cautious. Considering this, I am inclined to maintain the judgments and orders passed by the Sessions Court. However, the learned counsel for the petitioner at this stage submits that leniency on the point of sentence be shown. Learned counsel submits that the accused has no criminal record and he has given up the job of driver Therefore, the sentence be reduced."
(Emphasis supplied)
32. Remarkably, in the instant case, PW-2 did not merely depose regarding the offending vehicle being backed/reversed by the appellant in high speed, rather, also of the endevour of the appellant to again run over the offending vehicle over the deceased despite shouts from public, which, in the considered opinion of this Court, sufficient to demonstrate rashness and negligence on the part of the appellant. Ergo, under such circumstances, this Court is in concurrence with the finding of the Ld. Trial Court that the ingredients of offences under Section 279/304A IPC stand attracted and proved beyond reasonable doubt against the appellant.
33. Here it is relevant to note that another aspect on which the appellant has fervently argued that no blood stains were found on the offending vehicle and that no rupture or oozing of body organs were present on the body of the deceased despite being run over by the offending vehicle. In fact, the Ld. Counsel has further submitted that as per PW-3 and PW-7, the deceased was found standing when they had reached the spot, belying the factum of accident in question. However, the said contentions are belied in light of the deceased's MLC (Mark-A) and post-mortem report C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 40 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:58:46 +0530 (Mark-D), demonstrating presence of multiple lacerated wounds and bruises over the deceased's body and the factum of death of the deceased consequent thereto. In fact, the post mortem report also records of multiple internal fractures as well as opined the cause of deceased's death to be, "...hemorrhage and shock due to injury to (L) lung & spleen, consequent upon blunt force impact..." Needless to reiterate that the said documents have been admitted by the appellant and the factum of deceased's death and being declared so/brought dead has been confirmed under the testimonies of PW-2 and PW-3 before the Ld. Trial Court.
34. Pertinent at this stage to further note that it is further strenuously averred on behalf of the appellant that the Ld. Trial Court failed to consider the defence of the appellant. In particular, as per Ld. Counsel, Ld. Trial Court failed to appreciate the deposition of DW-1/Sunil Kumar to note that the appellant was stopped by the concerned police officials while the offending bus was in the process of leaving for Ambala and that the appellant was falsely implicated in the present case. However, in this regard, this Court outrightly notes that the said defence is raised for the first time by the appellant before this Court. On the contrary, reference is made to para (e) at page 11 of the impugned judgment, wherein the Ld. Trial Court recorded the appellant's defence before it/the Ld. Trial Court, as under;
"...(e) It was the defence of the accused that as per his duty roaster Ex. PW6/G, the offending vehicle was to start at 10:05 am from Delhi and reach at Ambala Cantt. At 2:30 pm on 11.04.2015. No document was placed on record by the accused and no official witness was summoned from the depot of Ambala, Haryana Roadways to prove that the offending vehicle had actually completed the journey on 11.04.2015 from ISBT, Delhi at 10:05 am and had reached at Ambala Depot at 2:30 p.m. The document C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 41 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:58:50 +0530 Ex. PW-6/G is merely a duty register showing the details of the bus, diver, its schedule of 11.04.2015 and the destinations, it was to cover on the said date. If the accused had not committed the offence on 11.04.2015 and had not been arrested by the IO on 11.04.2015 in this FIR, he would have plied the offending vehicle on the route as per duty register Ex.
PW-6/G and registered his presence at Ambala Depot or the other depots as per the schedule. However, no such attendance register of Haryana Roadways or testimony of any other official of Haryana Roadways was recorded at the instance of the accused to prove that he had completed his duty hours on 11.04.2015 and had travelled from Delhi to Ambala Cantt. and so on..."
(Emphasis supplied)
35. Clearly, from above, it is noted that the appellant has endeavored by means of the present appeal to build up a new defence that he was held up as he was leaving for Ambala, quite understandably, for the reason that the defence raised by the appellant before the Ld. Trial Court was unappealing to the senses of a prudent man, unfathomable and replete with inaccuracies. Needless to mention, while no fault can be determined in the aforenoted finding of the Ld. Trial Court, this Court is further not convinced even with the new defence labored to be raised at the present stage. Pertinent in this regard to further note that even on a scrupulous analysis of DW-1's deposition, the said defence does not find any credence or support for DW-1 nowhere asserted that the appellant was stopped by the police officials as he was leaving for Ambala as per schedule at 10:05 a.m., even otherwise, the appellant, in his statement, recorded in terms of the provisions under Sections 313/281 Cr.P.C., raised no such defence, as either raised before the Ld. Trial Court or now before this Court under the present appeal. On the contrary, the appellant merely pleaded registration of false case by the complainant against him. Needless C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 42 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:58:54 +0530 to further mention that nowhere under the cross examination of any of the prosecution witnesses, the appellant even put any suggestion pertaining to the appellant's false implication in the present case as he was leaving for Ambala on the date of incident as per the schedule of 10:05 a.m. Clearly, under such a situation, in the considered opinion of this Court, not much credence can be accorded to the appellant's defence, basis/foundation of which was never laid down in the appellant's cross examination of the prosecution witnesses, which is even otherwise never been the appellant's case before the Ld. Trial Court, as noted hereinabove. Nonetheless, in this regard, reference is made to the decision of the Hon'ble High Court of Madhya Pradesh in Suresh Chandra Gupta v. State of Madhya Pradesh, Crl.M.C. No. 5117/2021 , dated 26.10.2021, wherein the Hon'ble Court, confronted with a similar conundrum, responded as under;
"...It is basic principle of the trial that accused has to establish his defence by cross examination of the prosecution witness and it cannot be termed that the accused defence shall start only at the stage of defence evidence. By confronting the prosecution witness with evidence and rebutting them by cross examination is the defence of the accused at the stage of prosecution evidence also. For free and fair trial, the trial court is bound to allow the accused to furnish all relevant documents for his defence at any stage. The impugned order is per-se illegal and arbitrary. Hence, he prayed that this petition should be allowed and impugned order should be quashed and the application filed by the petitioner under Section 91 of Cr.P.C. for taking documents on record be also allowed."
(Emphasis supplied)
36. Conspicuously, quite recently, the Hon'ble Supreme Court in Balu Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC 355, elucidating the purpose and object behind cross examination of witness(es), noted as under;
C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 43 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:58:57 +0530
"43. The main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the accused..."
(Emphasis supplied)
37. Pertinent to further reiterate that though, DW-1/Sh. Sunil Kamar asserted that he was sitting in the offending vehicle which has departed at 10:05 a.m. from ISBT, Kashmere Gate to Ambala, however, DW-1 nowhere asserted that the appellant was stopped /confiscated on road inside ISBT by the police officials and wrongly booked in the present case as otherwise asserted now, for the first time under Grounds Y and Z of the present appeal. Clearly, the said defence/ground are not only an afterthought and raised for the first time, without any foundational basis, as aforenoted, rather, no reason for false implication/roping of the appellant either by PW-2 or the concerned police officials is emerging from the material placed on record.
38. Conclusively, in view of the above discussion, in particular, in light of the unambiguous testimony of the eyewitness/PW-2, read in conjunction with the testimonies of PW-3 and PW-7 as well as corroborated from the testimonies of PW-4 and PW-8, the ingredients of offences under Sections 279/304A IPC stand proved against the appellant herein. Needless to mention, the appellant was identified and deposed as the perpetrator of the offence by PW-2 in his deposition, besides duly identified before the Ld. Trial Court as said perpetrator. Correspondingly, no reasons for wrongful implication of the C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 44 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:59:01 +0530 appellant in the present case are forthcoming under the testimonies of prosecution witness, in particular, under the deposition of PW-2, PW-3 and PW-7. Further, as aforenoted, related witness is not synonymous with interested witness. Further, as aforenoted, the appellant did not lead a foundation of its defence in the cross examination of any of the prosecution witnesses, besides, the defence now sought to be raised in the instant appeal for the first time, itself is self-destructive and finds no corroboration even from the testimony of DW-1/Sh. Sunil Kumar. Correspondingly, the manner of vehicle being driven at high speed, while reversing the vehicle and the persistent endeavor of the appellant to run over the deceased despite outcry/shouts and initial run over, are in the considered opinion of this Court, sufficient to demonstrate rashness and negligence on the part of the appellant. Needless to further reiterate that the factum of demise of the deceased consequent to the accident in question is neither denied nor rebutted, rather, stands proved from the deceased's postmortem and MLC records. Ergo, under such circumstances, this Court is in concert with the Ld. Trial Court's observation that the prosecution has been able to prove its case 'beyond reasonable doubt' against the appellant herein for the offences under Sections 279/304A IPC. Needless to further mention that though it holds highest regard for the decisions relied upon by the Ld. Counsel for the appellant in support of his contentions, however, the same would not come to the aid of the appellant, in the manner as proposed, as the facts and circumstances of the present case are clearly distinguishable.
39. Accordingly, in light of the foregoing explication/ discussion, the present appeal deserves to be dismissed and is hereby dismissed. Accordingly, the judgment dated 23.08.2019, C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 45 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.12.23 16:59:05 +0530 passed by Ld. Metropolitan Magistrate-11/Ld. MM-11, Central, Tis Hazari Courts, Delhi in case bearing, " State v. Jay Singh, CC No. 301495/2016", arising out of FIR No. 179/2015, P.S. Kasmere Gate, convicting the appellant for the offences punishable under Sections 279/304A IPC is hereby upheld. Let the appellant, namely, Jay Singh be heard on sentence.
40. In the meanwhile, issue notice to SHO, Kashmere Gate to submit report of antecedents of the appellant. Also, issue notice to concerned Jail Superintendent to submit conduct report and nominal roll of the convict, namely, Jay Singh. Correspondingly, let a copy of this judgment along with the affidavits filed by the appellant and State, in terms of the decision of the Hon'ble High Court of Delhi in Karan v. State NCT of Delhi, Crl. Appeal 352/2020, dated 27.11.2020 (DHC), be circulated to DLSA, Central, Tis Hazari Court, to file Victim Impact Assessment Report, on or before the next date of hearing. Correspondingly, issue notice to the probation officer to file a report in terms of the provisions under Sections 3/4 of the Probation of Offenders Act, returnable for the next date of hearing. Copy of the present judgment be annexed along with the notice. Further, a copy of the present judgment be given dasti to the appellant.
Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2024.12.23 16:59:10 +0530 Announced in the open Court (Abhishek Goyal)
on 23.12.2024. ASJ-03, Central District, Tis Hazari Courts, Delhi C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 46 of 46