Delhi District Court
Harjeet Singh vs State on 29 November, 2024
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
CA No.114/2024
Harjeet Singh
S/o late Sh. Amarjeet Singh
R/o H.No.13/7, Geeta Colony,
Delhi-10031
.... Appellant
Vs.
1.State
2. Jasveen Kaur
W/o Sh. Manjeet Singh,
R/o H.No.B-46, Street No.12,
New Gobind Pura, Delhi-110051
.... Respondent
Date of Institution : 27.07.2024
Arguments heard :18.11.2024
Date of order : 29.11.2024
JUDGMENT
1. The instant appeal has been filed under Section 374(3) CRPC against the Judgment date 24.01.2024 passed by Ld. MM-02/East District, Karkardooma Courts, Delhi in case FIR No.105/2019 titled as "State vs Harjeet Singh" vide which the appellant was held guilty and convicted for offence under Section 279 IPC and vide order on sentence dated 29.06.2024 vide which the appellant was sentenced to pay a fine of Rs.1,50,000/- to victim within one month from the date of order on sentence, in default of payment of which, appellant was directed to undergo Simple Imprisonment for a period of one month.
Digitally signed by CA No.114/2024 Harjeet Singh vs State 1 of 21 Ashish Ashish Rastogi Rastogi Date:
2024.11.29 16:24:09 +0530
2. The brief facts as per the prosecution case are as under:
That on 28.03.2019, at about 7.20 am at 15 Block near School, Geeta Colony, Delhi, the accuse was found driving car bearing registration No. DL-8CAU-7663 in a rash and negligent manner and hit his vehicle against the complainant's vehicle bearing registration No.DL-13C-3938 and thus committed offence punishable U/s 279 IPC.
3. After conclusion of trial, appellant was held guilty and convicted for the offence U/s 279 IPC.
4. Aggrieved with the impugned judgment and order on sentence, appellant prefers the instant appeal.
5. Ld. counsel for respondent/complainant argued that though there is delay in lodging the present FIR but the fact that the accident had taken place due to the negligence of convict/appellant cannot be disproved. It is further submitted that after the accident, the father of the convict/appellant had requested the complainant not to take any legal action against his son/accused and had assured to get the car repaired due to this reason delay occurred. It is further submitted that if the said accident would have not been caused due to rash and negligent act of the convict/appellant, his father as well as accused would not have got the part repair work done in the car of the complainant.
6. It is further argued that no material contradiction was found in the testimony of the witnesses by the Ld. Trial Court. Regarding non- signing of site plan, it is argued that no question or any suggestion has been put to any of the witnesses in their evidence. Preparation of site plan is part of the investigation and it is not mandatory for the Digitally signed by Ashish Ashish Rastogi Rastogi Date:
2024.11.29 CA No.114/2024 Harjeet Singh vs State 2 of 21 16:24:17 +0530 complainant to sign the site plan. In this regard, reliance is placed on case law reported as Tori Singh vs State of Uttar Pradesh 1962 AIR 399.
7. Ld. Counsel for respondent/complainant further argued that the it is admitted position of fact that convict/appellant was driving the offending vehicle on the date of accident and father of the convict/appellant also stated in response to notice U/ 133 of MV Ct that the offending vehicle was being driven by his son i.e. convict/appellant on the date and time of accident.
8. It is further argued that convict/appellant was driving the vehicle in rash and negligent manner at a high speed and there was a failure on his part to exercise reasonable and proper care while driving the vehicle due to which the accident has taken place which caused injuries to complainant as well as damages to her car.
9. It is further argued that PW1 has clearly stated that she did not go to see the CCTV footage with IO and nor she remembers or has any knowledge about the CCTV footage. PW3 also deposed that he did not go to see the CCTV footage. While PW5/IO stated that he had checked the CCTV footage at the spot but spot was not covered by any camera. No question or any suggestion was put to witness regarding the CCTV footage and for the first time, appellant has raised this ground in the present appeal to fill the lacunae on his part.
10.It is also argued that the grounds taken by the appellant herein in the present appeal are altogether new grounds which are not sustainable at this stage as the same were never put the prosecution witnesses during their cross-examination nor any suggestion was ever put to Digitally signed by Ashish CA No.114/2024 Harjeet Singh vs State 3 of 21 Ashish Rastogi Rastogi Date:
2024.11.29 16:24:24 +0530 the prosecution witnesses and the appellant cannot be allowed to raise new grounds by way of filing of the present appeal. It is also submitted that appellant did not lead any defence evidence in his defence.
11.Ld. counsel for appellant argued that the allegations levelled against the appellant are false and are untenable in the eyes of law and appellant does not deserve to be acquitted U/s 279 IPC.
12.It is further argued that there is a delay of almost two months in registration of FIR. It is argued that the accident took place on 28.03.2019 and complainant called at 100 number but after seeing the CCTV footage at the place of incident, she chose not to give any type of complaint against the accused and after a period of two months, she filed a false and frivolous complaint against the accused just to extort money from him. Further, there is no evidence on record about the nature of injuries sustained by the respondent in the alleged accident.
13.It is further argued that there are major inconsistencies in the statement of prosecution witnesses in the their statement recorded U/s 161 Cr.P.C as well as their examination in chief and cross- examination. There are major contradictions in testimony of PW1, PW3 and PW5/IO. It is further argued that the testimony of material witnesses does not inspire confidence and there is no independent public witness to corroborate the allegations.
14.It is further argued that there is nothing on record to establish that the accused drove his vehicle rashly and negligently or did any act which would amount to rash and negligent driving and in this regard, reliance is placed upon the case law reported as (I) Kishore Digitally signed by CA No.114/2024 Ashish Ashish Rastogi Harjeet Singh vs State 4 of 21 Rastogi Date:
2024.11.29 16:24:32 +0530 Chand Joshi vs State, 2018 (172) DRJ 586 "2018 10 AD (Delhi) 153" (II) Abdul Subhan vs State of NCT of Delhi 133 (2006) DLT 562, 2007 CRI.L.J. 1089 (III) State vs Baldev Singh MANU/DE/8037/2023.
15.It is further argued that complainant failed to identify the accused and no evidence is on record that the accused was driving the offending vehicle in a rash and negligent manner and she has clearly stated that she is unable to identify the accused but her husband may identify the accused.
16.It is further argued that there is no mention of colour of paint of vehicles of each other which established that there is no rash and negligent on the part of the accused. The said proposition has been laid by the Hon'ble High Court of Delhi in the case reported as Kripal Singh vs State & Ors. MANU/DE/3760/2023.
17.It is further argued that the criminal proceedings cannot be used for civil recovery. It is argued that the husband of the complainant went to PS and decided to settle the matter and accused got repaired dent on his car, however, accused did not get the tyres and airbag of complainant's car replaced due to which he proceeded with the present matter. It is further argued that for breach of the oral promise, if any, made by the accused the complainant ought to have sought for recovery proceedings before the civil court and complainant has filed the complaint after expiry of about two months of the incident which shows that the complainant has tried to give criminal colour for the breach of an oral compromise made by the accused to get the complainant's car repaired.
18.It is further argued that High speed does not bespeak of either Digitally signed by CA No.114/2024 Harjeet Singh vs State 5 of 21 Ashish Ashish Rastogi Rastogi Date:
2024.11.29 16:24:39 +0530 negligence or rashness by itself. Ld. Trial Court has failed to appreciate that it is trite law that the expression fast speed or high speed is a relative term and merely driving the vehicle at fast speed itself may not tantamount to rash and negligence. In this regard, Ld. Counsel relied upon the case law reported as (I) State of Karnataka vs Satish : (1998) 8 SCC 493 (II) Kishore Chand (supra) and (III) Rajesh Kumar Gupta vs State in Crl. Revision No.988/2019 and State vs Baldev Singh (supra).
19.It is further argued that the mechanical inspection report is doubtful as PW4 who inspected the offending vehicle as well as vehicle of complainant, prepared and submitted two detailed mechanical inspection reports as per which fresh damages were found on both the vehicles and both of the vehicles were in running condition. It is argued that even after expiry of two months, existence of fresh damages on the complainant's car raises doubt.
20.It is lastly argued that the prosecution has failed to prove its case beyond reasonable doubt and there are several contradictions in testimony of prosecution witnesses and the material placed on record is not sufficient to hold the appellant guilty U/s 279 IPC. In this regard, Ld. Defence counsel has placed reliance upon the case law reported as Kali Ram vs State of Himachal Pradesh:
MANU/SC/0121/1973: 1974 Cri. L.J.
21.I have gone through the Appeal and heard the submissions of Ld. Counsel for the Respondent as well as Ld. Substitute Addl. PP for the State and perused the TCR.
22.Before moving on the findings, it is pertinent to discuss in brief as to the nature of Jurisdiction which is to be exercised by Appellate Digitally signed by Ashish Ashish Rastogi Rastogi Date: CA No.114/2024 2024.11.29 Harjeet Singh vs State 6 of 21 16:24:53 +0530 Court in Appeals under Section 374(2) CRPC. The Hon'ble Apex Court in Jogi v. State of Madhya Pradesh; Criminal Appeal No 1350 of 2021 has observed:
"The High Court was dealing with a substantive appeal under the provisions of Section 374 of the Code of Criminal Procedure 1973 1. In the exercise of its appellate jurisdiction, the High Court was required to evaluate the evidence on the record independently and to arrive at its own findings as regards the culpability or otherwise of the accused on the basis of the evidentiary material."
23.Therefore, the task of this Court in the course of the said appeal is to independently assess and appreciate the evidence on record and ar- rive at its own finding along with the reasons to agree/disagree with the findings of the Ld. Trial Court. Before considering the same, it shall be pertinent to mention that the FIR has been registered u/s 279 IPC which is as follows:
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 imprison-
ment 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.
24.Regarding the nature and ingredients of Section 279 IPC, the Hon'ble Supreme Court of India in Ravi Kapur v. State of Ra- jasthan, [2012] 10 S.C.R. 229 held as under:
"10. In order to examine the merit or otherwise of contentions
(b) and (c) raised on behalf of the appellant, it is necessary for the Court to first and foremost examine (a) what is rash and negligent driving; and (b) whether it can be gathered from the attendant circumstances. Rash and negligent driving has to be examined in light of the facts and circumstances of a given case.
It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be CA No.114/2024 Digitally signed by Harjeet Singh vs State 7 of 21 Ashish Ashish Rastogi Rastogi Date:
2024.11.29 16:25:01 +0530 always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted.
11. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence.
12. The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others."
25.Therefore, the prosecution in order to bring home the charges u/s 279 IPC must be able to prove beyond reasonable doubt the basic ingredients of Section 279 as explained above.
26.With the above background in mind, the instant fact situation is to be analyzed.
Digitally CA No.114/2024 Harjeet Singh vs State 8 of 21 signed by Ashish Ashish Rastogi Rastogi Date:
2024.11.29 16:25:08 +0530
27.It is an admitted fact that accident occurred on 28.03.2019 but no complaint regarding the said incident was filed on the said date and the same was preferred on 04.05.2019 and the FIR was registered on 05.05.2019. Ld. Counsel for the respondent has argued that it is not in dispute the complaint was not given as the Complainant wanted to settle the matter but since the Accused did not get the car of the complainant repaired to the satisfaction of the complainant, instant complaint was filed. The Complaint i.e. Ex-PW1/A clearly mentions that the Amarjeet Singh i.e. the father of the Accused promised to get the car repaired but as he has neither done so nor has any inten- tion to do so in future. Hence, the instant complaint has been pre- ferred. Thereafter, the statement of the Complainant u/s 161 Cr.P.C. was recorded on 06.05.2019. As per the said statement, the com- plainant stated that the accident occurred on 28.03.2019 and there- after she went along with the IO to check the CCTV footage and af- ter seeing the same everybody said that you(complainant) was driv- ing the car in the wrong place but since the other car was driving at a high speed, the accident occurred. Although, PW-1 in her exami- nation in chief as well as cross examination deposed that there was no negligence on her part and the accident occurred entirely due to the negligence of the Accused. Another contradiction is that in her statement u/s 161 Cr.P.C. she mentioned that she saw the CCTV footage with the IO but in her deposition she clearly denied the same and said that her husband went to check the CCTV footage with the IO(PW-5). She was duly confronted with respect to the said statement as her previous statement, i.e. Statement u/s 161 Cr.P.C which was clearly contradictory to her later stand, was shown to her. In relation to that, she clearly admitted that she made such statement but the reason she gave was that IO might have written CA No.114/2024 Digitally Harjeet Singh vs State 9 of 21 signed by Ashish Ashish Rastogi Rastogi Date:
2024.11.29 16:25:15 +0530 the said statement to settle the matter. She further stated that the said statement was written with her consent as she also wanted to settle the matter. Before moving further, it shall be pertinent to analyze in detail the law occupying the field as to what extent the statements under Section 161 Cr.P.C. may be relied upon and used if the same are contradictory/in variance to the later statement. The same has been elaborately laid down by the Hon'ble Supreme Court of India in the case of Allauddin v. State of Assam CRIMINAL APPEAL NO. 1637 OF 2021.
6. Under Section 161 of the Code of Criminal Procedure, 1973 (for short, 'CrPC'), the police have the power to record statements Criminal Appeal No. 1637 of 2021 of the witnesses during the Page 4 of 23investigation. Section 162 of CrPC deals with the use of such statements in evidence. Section 162 reads thus:
"162. Statements to police not to be signed: Use of statements in vidence.--(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall ny such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the Digitally CA No.114/2024 signed Ashish by Harjeet Singh vs State 10 of 21 Ashish Rastogi Rastogi Date:
2024.11.29 16:25:22 +0530 provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act. Explanation.--An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
The basic principle incorporated in sub-Section (1) of Section 162 is that any statement made by a person to a police officer in the course of investigation, which is reduced in writing, cannot be used for any purpose except as provided in Section 162. The first exception incorporated in sub-Section (2) is of the statements covered by clause (1) of Section 32 of the Indian Evidence Act, 1872 (for short, 'Evidence Act'). Thus, what is provided in sub-Section (1) of Section 162 does not apply to a dying declaration. The second exception to the general rule provided in sub-Section (1) of Section 162 is that the accused can use the statement to contradict the witness in the manner provided by Section 145 of the Evidence Act. Even the prosecution can use the statement to contradict a witness in the manner provided in Section 145 of the Evidence Act with the prior permission of the Court. The prosecution normally takes recourse to this provision when its witness does not support the prosecution case. There is one important condition for using the prior statement for contradiction. The condition is that the part of the statement used for contradiction must be duly proved.
7. When the two statements cannot stand together, they become contradictory statements. When a witness makes a statement in his evidence before the Court which is inconsistent with what he has stated in his statement recorded by the Police, there is a contradiction. When a prosecution witness whose statement under Section 161 (1) or Section 164 of CrPC has been recorded states factual aspects before the Court which he has not stated in his prior statement recorded under Section 161 (1) or Section 164 of CrPC, it is said that there is an omission. There will be an omission if the witness has omitted to state a fact in his statement recorded by the Police, which he states before the Court in his evidence. The explanation to Section 162 CrPC indicates that an omission may Digitally signed by amount to a contradiction when it is significant and Ashish Ashish Rastogi Rastogi Date:
CA No.114/20242024.11.29 16:25:33 Harjeet Singh vs State 11 of 21 +0530 relevant. Thus, every omission is not a contradiction. It becomes a contradiction provided it satisfies the test laid down in the explanation under Section 162. Therefore, when an omission becomes a contradiction, the procedure provided in the proviso to sub-Section (1) of Section 162 must be followed for contradicting witnesses in the cross- examination.
8. As stated in the proviso to sub-Section (1) of section 162, the witness has to be contradicted in the manner provided under Section 145 of the Evidence Act. Section 145 reads thus:
"145.Cross-examination as to previous statements in writing.--A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
The Section operates in two parts. The first part provides that a witness can be cross-examined as to his previous statements made in writing without such writing being shown to him. Thus, for example, a witness can be cross- examined by asking whether his prior statement exists. The second part is regarding contradicting a witness. While confronting the witness with his prior statement to prove contradictions, the witness must be shown his prior statement. If there is a contradiction between the statement made by the witness before the Court and what is recorded in the statement recorded by the police, the witness's attention must be drawn to specific parts of his prior statement, which are to be used to contradict him. Section 145 provides that the relevant part can be put to the witness without the writing being proved. However, the previous statement used to contradict witnesses must be proved subsequently. Only if the contradictory part of his previous statement is proved the contradictions can be said to be proved. The usual practice is to mark the portion or part shown to the witness of his prior statement produced on record. Marking is done differently in different States. In some States, practice is to mark the beginning of the portion shown to the witness with an alphabet and the end by marking with the same alphabet. While recording the Digitally signed by Ashish Ashish Rastogi cross-examination, the Trial Court must record that a Rastogi Date:
2024.11.29 16:25:57 CA No.114/2024 Harjeet Singh vs State 12 of 21 +0530 particular portion marked, for example, as AA was shown to the witness. Which part of the prior statement is shown to the witness for contradicting him has to be recorded in the cross-examination. If the witness admits to having made such a prior statement, that portion can be treated as proved. If the witness does not admit the portion of his prior statement with which he is confronted, it can be proved through the Investigating Officer by asking whether the witness made a statement that was shown to the witness. Therefore, if the witness is intended to be confronted with his prior statement reduced into writing, that particular part of the statement, even before it is proved, must be specifically shown to the witness. After that, the part of the prior statement used to contradict the witness has to be proved. As indicated earlier, it can be treated as proved if the witness admits to having made such a statement, or it can be proved in the cross- examination of the concerned police officer. The object of this requirement in Section 145 of the Evidence Act of confronting the witness by showing him the relevant part of his prior statement is to give the witness a chance to explain the contradiction. Therefore, this is a rule of fairness.
9. If a former statement of the witness is inconsistent with any part of his evidence given before the Court, it can be used to impeach the credit of the witness in accordance with clause (3) of Section 155 of the Evidence Act, which reads thus:
"155. Impeaching credit of witness.--The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him--
(1) .............................................. (2) ............................................. (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted."
It must be noted here that every contradiction or omission is not a ground to discredit the witness or to disbelieve his/her testimony. A minor or trifle omission or contradiction brought on record is not sufficient to disbelieve the witness's version. Only when there is a material contradiction or omission can the Court disbelieve the witness's version either fully or partially. What is a material contradiction or omission depends upon the facts of each case. Whether an omission is a contradiction also depends on the facts of each individual case." Digitally signed by Ashish Ashish Rastogi Rastogi Date:
2024.11.29 16:26:04 +0530 CA No.114/2024 Harjeet Singh vs State 13 of 21
28. Applying the same in the facts and circumstances of the case, the statement u/s 161 Cr.P.C. stood duly proved as per Section 145 of Indian Evidence Act, 1872. There is a clear and material contradic-
tion between the earlier and subsequent statement of PW-1. The rea- son offered for the same also does not appear to be plausible be- cause firstly, the complaint was only preferred after a gap of almost 1.5 months and that too when the complainant clearly stated in her complaint that as the accused is not getting the car repaired, the complaint is being preferred. Hence, in other words the complaint was preferred when the possibility of any settlement had completely seized. Secondly, even if there was any possibility of any settlement even at that stage, that is no reason for the complainant to give any statement which is clearly contradictory to her stand and has an ef- fect of diluting the case of the prosecution as she admitted her negli- gence in the said statement. The said observations are without preju- dice to the fact that criminal proceedings cannot be used as a recov- ery proceedings.
29.Second limb of analysis shall entail the independent appreciation of evidence of the prosecution witnesses so as to form an opinion on the trustworthiness of their deposition and whether, with the help of their testimony, prosecution has been able to bring home the charges against the Accused
30. PW1 Ms. Jasveen Kaur i.e. the complainant, in her examination in chief stated that offending vehicle bearing registration No.DL-8CAU-7663 came in a high speed and hit against her car from the front right side/driver side and due to the said hit, the Air Bags of her car opened and she got injuries on her face, teeth and Digitally signed by Ashish Ashish Rastogi both her hands. She further stated that she sustained injuries on her Rastogi Date:
2024.11.29 16:26:10 +0530 CA No.114/2024 Harjeet Singh vs State 14 of 21 chest also. She further stated that after 2-3 minutes, she came out of her car and called the accused but he fled away from the spot along with offending vehicle. She again said that she came out of her car within 15-20 seconds. After that she stated that she is unable to identify the accused but her husband can identify the accused.
31.On the said point, the cross-examination of PW1 was conducted by Ld. APP wherein she improved her version and stated that there are 99% chances that the accused present in the court was driving the offending vehicle and she again said that said that the chances are100%. The same is in variance with the testimony of PW3 Manjeet Singh i.e. husband of the complainant who stated in his examination that his wife told him that she did not see the face of the accused who rammed against her car.
32.PW1 further stated, regarding the CCTV footage that she did not go to see the CCTV footage at the house in place of the incident but her husband had gone with the IO to see the CCTV footage. The same is also in variance with the testimony of PW2 Manjeet Singh who stated in his examination in chief that he did not see the CCTV footage along with IO as there was no camera at the spot as per his knowledge.
33.When PW1 was cross-examined by Ld. APP, she stated that the police might have prepared part of the site plan but today she does not remember due to lapse of time. There is no whisper about the place of incident in the testimony of PW3. There is no mention of site plan viz-a-viz as to when it was prepared and who went with the IO at the time of making of site plan. This is in variance with the testimony of PW5/IO i.e. Inspector Mintu Singh who in his testimony stated that he along with complainant (PW1) and her Digitally signed by Ashish Ashish Rastogi Rastogi Date:
2024.11.29 16:26:17 +0530 CA No.114/2024 Harjeet Singh vs State 15 of 21 husband (PW3) visited the spot on 05.05.2019 and that he did not obtain any signature of complainant and any witness on the site plan.
34.Regarding the CCTV footage also, the testimony of the PW5 is in variance with the testimony of PW1 as he deposed that when he checked the camera, the complainant and her husband were present but the spot was not covered with any camera.
35.Further, PW3 in his testimony deposed that he received a call from his wife at about 7.25 am, who informed that she met with an accident on the road. He further deposed that PW1 further informed him that one vehicle make Honda WRV came in a very high speed from the opposite side and rammed against her car and that she made a call at 100 number and she told the location of the accident where he reached after 10-15 minutes. The said chain of events as deposed by PW3 are altogether missing in the testimony of PW1. Moreover, it is not understood that when PW1 initially mentioned that she is unable to identify the accused but her husband would be able to identify the accused, how the same is possible as PW3 himself in his testimony mentioned that he reached at the place of incident after 10-15 minutes and by that time accused had already fled away from the spot.
36.PW3 further, in his testimony, mentioned that when he reached the spot, he saw car of his wife badly damaged and its Air Bags were opened and the tyres were burst and its suspension system was also dismantled and thereafter, police officials came at the spot. He further mentioned that public persons present at the spot told the police officials in his presence the number of offending vehicle i.e. DL-8CAU-7663. The police official checked the details of the CA No.114/2024 Harjeet Singh vs State 16 of 21 Digitally signed by Ashish Ashish Rastogi Rastogi Date:
2024.11.29 16:26:25 +0530 number and located the offending vehicle and he along with the police officials went to the house of the accused where the offending vehicle was found parked. Thereafter, they rang the bell but no one came out and the neighbors told him and the police officials that the accused and his family had left on a scooty and a bike. The same is completely in variance of testimony of PW5/IO who stated that he arrived at the spot on 28.03.2019 i.e. the date of incident. No family member of the complainant was present at the spot and family member arrived later on. In addition, he also stated that 2-4 public persons were present with the complainant but they did not tell anything and he did not record their statement also as the complainant wanted to settle the matter. Further, no public persons were requested to join the investigation. He further stated that he did not visit the house of the accused at any point of time and that the accused was called to PS after about one and half months later i.e. on 05.05.2019 when the complainant gave a written complaint. In addition to the above variance and the testimony of the witnesses, it is observed that the incident as narrated by PW3 regarding the public witnesses is altogether missing in the testimony of PW1. From the testimony of PW1, it is also not clear whether she noted down the number of offending vehicle or whether the vehicle was traced with the help of what was told by the public witness. It is further matter of record that no public persons have been made witness to the said incident. Neither their statements were recorded. Even their details were not taken by the complainant, her husband (PW3) or by the IO. The IO has justified the same by saying that he did not pursue the complaint or take statements or details of public witnesses as he was told by the complainant and her husband that they did not want to pursue the complaint and wanted to settle the Digitally signed by Ashish Ashish Rastogi Rastogi Date:
CA No.114/2024 Harjeet Singh vs State 17 of 21 2024.11.29 16:26:32 +0530 matter and therefore, on the date of incident i.e. 28.03.2019, he did not make further inquiry. Even the complainant has admitted the fact that on the date of incident, no complaint was lodged as they wanted to settle the matter and wanted to get their car repaired. Since their car was not got repaired by the accused, they preferred the present complaint. In addition to the above, PW1 stated in her testimony that no MLC was prepared. PW3 also stated that MLC was not conducted by the police official and that her wife herself went to the doctor who told that injuries are minor in nature so the medicines were given to her on prescription.
37. Form the above discussions, it is clear that the versions of the three material witnesses i.e. PW-1, PW-3 and PW-5 are in variance which each other. There are various inconsistencies in their version that have been discussed in detail above. In State of Rajasthan vs. Kalki & Anr. [1981 (2) SCC 752] held that "in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person." In the case of Rajendra @ Rajappa, 2011 SC, this Court while relying on the case of Narayan Chetanram Chaudhary v. State of Maharahtra held as under:
"This Court, in the case of Narayan Chetanram Chaudhary & Anr. v. State of Maharashtra, has considered the minor contradictions in the testimony, while appreciating the evidence in criminal trial. It is held in the said judgment that only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of Digitally the witnesses. Relevant portion of Para 42 of the judgment reads as under:
signed by Ashish Ashish Rastogi Rastogi Date:
2024.11.29 16:26:39 +0530 CA No.114/2024 Harjeet Singh vs State 18 of 21 "42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2.
Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness."
38. Applying the above in the facts and circumstances of the case, it is the considered opinion of this court that respective versions of PW-1, PW-3 and PW-5 do not collate with each other. The inconsistencies in their testimony is such that it is difficult to separate the grain from the chaff and knit a coherent account of chain of events which happened on the date of the incident which is supported by all the witnesses. The witnesses are at variance with various material aspects i.e. presence of public persons at the spot and their role, how the number of the car of the accused was obtained, did PW-1 saw the accused driving the offending car, at whose instances site plan was prepared and who went with the IO at the time of making of the site plan, whether any CCTV footage was checked or not etc. The said discrepancies cannot be regarded as minor or trivial discrepancies but same are, in the considered opinion of this court, major and material inconsistencies. It is the considered opinion of this Court that the inconsistencies in the version of witnesses is such which has the direct bearing on the particular version of the prosecution.
Digitally signed by Ashish Ashish Rastogi Rastogi Date:
2024.11.29 16:26:45 +0530 CA No.114/2024 Harjeet Singh vs State 19 of 21
39.As it has been held above, the testimony of the witnesses as marshalled by the prosecution does not inspire confidence therefore there is a need to look for corroboration from independent public witnesses but it is a matter of record that the prosecution has not examined any public witness who could have testified to the fact that the accused was driving in rash and negligent manner. Even the statement of any public witnesses is not on record.
40.Another aspect which is worth discussing here is that while the alleged incident took place on 28.03.2019, the FIR was registered on 05.05.2019. It is trite law that investigation commences only after registration of the FIR. In has consistently come in the testimony of all the material witnesses that the complaint was not preferred immediately because the complainant herself wanted to settle the matter. As there was so much delay, no skid marks or any other material piece of evidence which would have pointed out to the culpability of the Accused could not be obtained. Even the inspection of the car was conducted on 23.05.2019 i.e. almost two months after the incident and the report clearly stated that fresh damages were found on both the vehicles i.e. the vehicle of the Accused and vehicle of the complainant. Hence, no conclusive opinion could be formed on the aspect as to what was the extent of damage to the complainant's car allegedly caused by the Accused.
41.In the light of the above discussion, it is the considered opinion of this court, upon the independent analysis of the evidence on record, that the testimonies of the witnesses and other evidence as marshalled by the prosecution do not inspire confidence. Even if for the sake of argument, it is assumed that an accident took place on the date and time as mentioned between the car of the Accused and Digitally signed by Ashish Ashish Rastogi Rastogi Date:
2024.11.29 16:26:52 +0530 CA No.114/2024 Harjeet Singh vs State 20 of 21 car of the complainant, there is no material on record which can conclusively establish the negligence and rashness of the Accused in driving the vehicle. Hence, the prosecution has failed to prove its case beyond reasonable doubt and the judgement of the trial court is accordingly set aside and the appeal stands allowed.
Announced in the open Court on 29.11.2024.
Digitally signed by (Ashish Rastogi) Addl. Sessions Judge-05 Ashish Ashish Rastogi Rastogi Date:
2024.11.29 16:26:58 +0530 East/Karkardooma Courts/Delhi CA No.114/2024 Harjeet Singh vs State 21 of 21