Delhi District Court
State ...........Prosecution vs . on 9 June, 2022
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE09 SOUTHWEST
DISTRICT, DWARKA COURTS, NEW DELHI
FIR No. 91/16
Police Station Domestic Airport
Under Section(s) 279/338 IPC
3/181 and 5/180 MV Act
Cr. Case no. 432602/2016
CNR no. DLSW020125462016
IN THE MATTER OF:
State ...........Prosecution
Vs.
1. Ganesh Kumar Gupta
S/o Akal Sahab
R/o H. no.60A, Nayak KhandIII,
Indira Puram, Ghaziabad, U.P.
2. Kuldip Saw
S/o Sh. Fagun Saw
R/o G43, BlockB Kaushik Enclave,
Burari, Delhi110084 ......Accused persons
1. Name of complainant : Vishal Singh Rana
2. Name of accused persons : 1. Ganesh Kumar Gupta
2. Kuldip Saw
3. Offences complained of : Under Sections 279/338 of
The Indian Penal Code, 1860
and Sections 3/181 and 5/180
of Motor Vehicles Act, 1988
4. Plea of accused persons : Accused no.1 Not guilty
State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.1/28
Digitally signed
BHARTI by BHARTI
GARG
GARG Date: 2022.06.09
15:17:09 +0530
Accused no.2 Guilty
5. Date of commission of offence : 30.08.2016
6. Date of institution of case : 30.09.2016
7. Date of reserving judgment : 27.05.2022
8. Date of pronouncement : 09.06.2022
9. Final judgment : Convicted
JUDGMENT:
1. The present case pertains to prosecution of accused no.1 Ganesh Kumar Gupta in respect of offences punishable under Sections 279/338 of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC' and 'Act' for brevity) and Section 3/181 of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for brevity) and further of accused no.2 Kuldip Saw in respect of offence punishable under Section 5/180 of MV Act.
2. Shorn of unnecessary details, the case of prosecution is that the complainant Vishal Singh Rana and his father Shiv Singh Rana (hereinafter 'injured') had to catch their flight to Lucknow from Domestic Airport, Delhi on 30.08.2016 for which the complainant booked the taxi bearing no. UP14ET6470 make Indica (henceforth, 'offending vehicle') to reach the Airport. At about 04:15 am, the accused no.1 picked up the complainant and injured in the said vehicle from their house located in Indirapuram The accused no.1 was driving the offending vehicle in a rash and negligent manner in a state of dizziness. At about 05:15 am, when they reached near the police picket Domestic Airport, the accused no.1 rammed the offending vehicle on divider. Due to the impact, the injured fell down from the back seat and suffered injuries on his head and fracture in his shoulder. The State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.2/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:17:21 +0530 injured was rushed to Fortis Hospital, Vasant Kunj, Delhi for treatment by the complainant. The IO collected the MLC of injured and recorded the statement of complainant at hospital. On that basis, the FIR was registered and investigation was undertaken by IO. He then recorded the statements of witnesses under Section 161 Cr. P. C, prepared the site plan, seized the offending vehicle and got it mechanically inspected. The accused no.1 was arrested and later on released on bail. The opinion on the nature of injuries was obtained as' grievous'. The documents of vehicle were seized and notice u/S 133 of MV Act was served upon the owner/accused no.2 who stated that accused no.1 was driving the vehicle at the time of incident. The accused no.1 did not hold a valid driving licence at the time of incident. After the culmination of investigation, chargesheet was filed against the accused persons.
3. Cognizance was taken of offences under Sections 279/338 of IPC and Section 3/181 of MV Act qua accused no.1 and Section 5/180 of MV Act qua accused no.2 and both the accused persons were summoned to face trial for the said offences. Upon their appearance, the copy of chargesheet was supplied to them in compliance with Section 207, Criminal Procedure Code (henceforth 'Cr.P.C').
4. On the basis of material filed along with chargesheet, notice of accusation under Sections 279/338 of IPC and Section 3/181 of MV Act was served upon accused no.1 to which he pleaded not guilty and claimed trial. Whereas, notice of accusation u/S 5/180 of MV Act was served upon accused no.2 to which he pleaded guilty and did not claim trial. On his plea of guilt, accused no.2 was convicted vide order dated State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.3/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:17:32 +0530 02.12.2016 and sentenced to fine of Rs.500/ and in default, to undergo simple imprisonment of 2 days. The accused no.1 admitted in his statement under Section 294 of Cr. P. C. the genuineness of FIR registered on 30.08.2016 marked as Ex.A1, DD no. 38 dated 29.08.2016 marked as Ex.A2, DD no.10 dated 30.08.2016 marked as Ex.A3 and DD no.6 dated 30.08.2016 marked as Ex.A4.
5. In the pursuit to prove its case, the prosecution examined as many as seven witnesses. PW1 Shiv Singh Rana, the injured, deposed that the incident took place on 30.08.2016 when he along with his son Vishal Singh Rana were going to Lucknow for which they had to take the flight from Domestic Airport, Delhi. His son had booked the taxi bearing no.UP14ET6470 make Indica which arrived at their house at around 04:1504:30 am and the taxi driver was accused Ganesh Kumar Gupta. He and his son sat on the back seat of the taxi and they left for Airport. The accused was driving the taxi at high speed in a rash and negligent manner. At around 05:15 05:30 am, when they reached in the area of Domestic Airport, the accused hit the taxi against the divider and it went over the divider. Due to the collision, he fell down between the space of front and back seat and sustained injuries on his head and right shoulder. He was taken to Fortis Hospital, Vasant Kunj, Delhi by his son after taking lift in a passing by vehicle. The witness correctly identified the accused no.1 present in the court as well as the offending vehicle through photographs Ex.P1.
6. In the crossexamination, PW1 Shiv Singh Rana stated that the time of their flight was 06:30 am and they were going to Lucknow for medical certificate for Visa purpose, however, the IO did not ask State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.4/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:17:47 +0530 him to produce flight ticket or any other document regarding the purpose of their visit to Lucknow. He stated that his son had booked the taxi from local taxi stand but could not tell who his son had talked to for the taxi. He stated that he remained admitted at hospital for 34 days and police official met him twice during that period. He further stated that police did not get any document signed from him. He denied the suggestion that he met accused no.1 for the first time at police station.
7. PW3 Vishal Singh Rana, the complainant, deposed that on 30.08.2016, he along with his father Shiv Singh Rana went to Domestic Airport in a taxi, whose registration number he did not remember, as they had to take flight for Lucknow. At around 04:15 am, the taxi driver namely Ganesh Kumar Gupta reached their address in the taxi and they left from their house. When they reached near police picket Domestic Airport, the accused ran the taxi over the divider due to his rash and negligent driving as he was not alert and was in drowsiness. Due to the impact, his father got severely injured and received injuries on his head and right shoulder. He took his father to Fortis Hospital, Vasant Kunj for treatment. He gave his complaint to the police Ex.PW3/A and the police prepared the site plan at his instance. The accused no.1 was arrested in hospital vide arrest memo Ex.PW3/B and personally searched vide personal search memo Ex.PW3/C. The witness correctly identified the accused no.1 present in the court and the offending vehicle through photographs Ex.P1.
8. In the crossexamination, PW3 Vishal Singh Rana stated that the IO did not enquire him about any ticket or document regarding the State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.5/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:17:59 +0530 purpose of his visit to Lucknow. He stated that he had dialled 100 number. The IO had come to him at about 12:00 to 01:00 pm approximately in the day time. He had not signed any document except the statement recorded by the IO and the IO had taken his signatures on 23 other papers also. After recording his statement, he never met the IO and had only spoken to him over phone once. He also denied the suggestion that he met accused no.1 for the first time at police station.
9. PW4 HC Raveendran deposed that in the intervening night of 29/30.08.2016 he was on duty at TPoint Picket from 07:00 pm to 08:00 am and at about 05:15 am, one taxi bearing no.UP14ET6470 make Indica was rammed by its driver onto the divider at a distance of about 10 meters after crossing the picket. There were two passengers in the said taxi out of which one had sustained injuries and he informed the Police Control Room. He waited for some time but since no PCR reached at the spot, he sent the taxi driver and the passengers to the hospital in another taxi. Thereafter, the IO came to the spot along with Ct. Sunil and he informed the IO about incident. Thereafter, the IO went to the hospital and after he came back, he also left the spot. The witness correctly identified the accused in court. As the witness did not support prosecution case on certain facts, prosecution was permitted to put him questions in the nature of crossexamination, wherein he correctly identified the vehicle through photographs Ex.P1 and also admitted that accused no.1 was driving the offending vehicle in a rash and negligent manner and at high speed.
10. In his crossexamination, PW4 HC Raveendran admitted that State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.6/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:18:10 +0530 he had refreshed my memory from police file before giving his statement in the Court. He admitted that he turned back after hearing the sound of collision and saw the offending vehicles rammed into the divider and that he did not see the accused no.1 driving the offending vehicle. He further admitted that he had not taken out any person from the offending vehicle and the said persons were taken out by the general public present over there. He could not tell the time at which the IO reached the spot or subsequently came back to the spot from the hospital. He did not meet the IO after leaving the spot with respect to the investigation of case. He could not recall the investigation conducted by the IO at the spot in his presence.
11. PW5 HC Sunil deposed that upon receiving DD entry no.6 on 30.08.2016, he along with IO went to the police picket Tpoint and when they reached the spot, he saw a car make Indica taxi bearing no.UP14ET6470 at the spot in an accidental condition. HC Raveendaran was present at the spot and upon inquiry, it was revealed that the driver and the injured passengers had already left for the hospital. He along with IO went to the hospital where the MLC of injured was collected and statement of complainant was recorded. Thereafter, the IO gave him the tehrir which he took the police station and got the FIR registered. Then he took the original tehrir and copy of FIR to the hospital. Accused no.1 was arrested by the IO in his presence at the hospital. Thereafter, they came back to the police station in the vehicle along with accused no.1 and complainant. The IO verified the documents of the offending vehicle and deposited it in malkhana. The witness correctly identified the accused present in the State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.7/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:18:20 +0530 court and vehicle through photographs Ex.P1.
12. As PW5 Ct. Sunil did not support prosecution case on certain facts, prosecution was permitted to put him questions in the nature of crossexamination, wherein he proved the tehrir as Ex.PW5/A, seizure memo qua the offending vehicle as Ex.PW5/B, seizure memo qua documents of offending vehicle as Ex.PW5/C. He admitted that after leaving the hospital they reached at the spot where the IO seized the offending vehicle and the documents. In the crossexamination by accused, PW5 stated that they did not meet any eyewitness at the spot and that they had reached the hospital at about 7:007:30 am.
13. PW2 Neeraj Sharma, expert witness, proved the MLC no.4468 of injured as Ex.PW2/A by identifying the signatures thereon of Dr. Suresh as he stated that he had worked with him and seen him writing and signing in due course of duties. He further tendered the authorisation letter Ex.PW2/B vide which he was authorized to appear in the court by Medical Superintendent. The witness was not cross examined despite opportunity. PW6 ASI Ved Prakash, MHC (M), brought the summoned record i.e. register no.19 and as per the entry no.563 of the said register Ex.PW6/A (OSR), the IO had deposited the seized offending vehicle in malkhana.
14. PW7 Inspector Rajesh Kumar, the IO, deposed that on receipt of DD no.6 dated 30.08.2016 regarding accident near Domestic Departure Area, he along with Ct. Sunil proceeded to the spot where they found the vehicle bearing no.UP14ET6470 in accidental condition and met HC Raveendran. The injured had already been State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.8/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:18:34 +0530 shifted to the hospital and then he along with Ct. Sunil also left the site for Fortis Hospital, Vasant Kunj, New Delhi. He collected the MLC of the injured and recorded the statement of complainant Ex.PW3/A. He prepared tehrir Ex.PW5/A and handed over the same to Ct. Sunil for registration of FIR. After the registration of FIR, Ct. Sunil came back at the hospital and handed over him the copy of FIR and original tehrir. The accused no.1/driver Ganesh Kumar was also present at the hospital where he interrogated and arrested him vide arrest memo Ex.PW3/B. He went to the spot of incident along with accused no.1 and complainant. He seized the offending vehicle along with its documents from accused no.1. He prepared site plan at the instance of complainant Ex.PW7/A. On 31.08.2016, he got the vehicle mechanically inspected vide mechanical inspection report Mark X. The documents submitted by the accused no.1 were verified from the concerned Authorities vide letters Ex.PW7/B, Ex.PW7/C, Ex.PW7/D, Ex.PW7/E and Ex.PW7/F. The notice under Section 133 MV Act Ex.PW7/G was served upon the owner of offending vehicle Kuldeep Saw and his reply was received upon the same. The DL of the owner of the offending vehicle Kuldeep Saw is Ex.PW7/H. It was also found that accused was not having a valid driving licence. During further investigation, result upon the MLC was collected wherein nature of injuries was opined as grievous.
15. PW7 Rajesh Kumar was crossexamined at length. He stated that he had reached the hospital at about 07:20 am. He did not conduct any investigation regarding with whom and the vehicle in which they had gone to hospital. He stated that the injured was taken to hospital by State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.9/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:18:45 +0530 his son and the accused had accompanied them. He did not remember if he had inquired from HC Ravindran on the spot whether accused no.1 present at the spot was driving the offending vehicle. He further did not conduct any investigation as to which taxi was booked by the injured from the taxi stand. He did not know for what purpose the injured and complainant were going to Lucknow. He admitted that the notice under Section 133 MV Act upon Kuldeep Saw after accused no.1 was arrested. The witness voluntarily stated that there were other sufficient evidences on record to arrest accused no.1.
16. On account of the admission of genuineness of FIR Ex.A1, DD no. 38 dated 29.08.2016 Ex.A2, DD no.10 dated 30.08.2016 Ex.A3 and DD no.6 dated 30.08.2016 Ex.A4 by the accused persons under Section 294 Cr.P.C, PWs W/HC Rajesh Malik and HC Kehar Singh were dropped from the list of prosecution witnesses and their examination in that regard was dispensed with. Further, PW Puran Chand expired on 06.10.2017 and therefore, his evidence could not be recorded and he was dropped from the list of prosecution witnesses.
17. Thereafter, the prosecution evidence was closed and statement of accused no.1 was recorded under Section 281 read with 313 Cr. P. C. All the incriminating circumstances appearing against the accused no.1 in evidence were put to him. The accused no.1 controverted all the allegations levelled against him and stated that he had been falsely implicated. He additionally stated that he was not driving the offending vehicle further that he does not know driving. He stated that he had gone to the Airport to meet his friend and had merely accompanied the injured to hospital to help him but the police officials State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.10/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:18:59 +0530 apprehended him at the hospital and lodged false case against him. He opted to lead evidence in his defence.
18. In defence evidence, the accused no.1 examined one DW1 Rajan Kashyap who deposed as the authorized representative of OLA Fleet Technology Private Limited and tendered in evidence the letter dated 13.05.2022 along with driving licence, election ID card and request for police verification of accused no.2 as Ex.DW1/A (colly) supported with certificate under Section 65B of Indian Evidence Act as Ex.DW1/B, authorization letter as Ex.DW1/C and photocopies of driving licence, election ID card and request for police clearance certificate of Kuldeep Sah as Mark X (colly). In the crossexamination by Ld. APP for State, the witness admitted that it was possible for persons other than the recorded drivers of OLA company to drive the vehicle operated under the company.
19. Thereafter, defence evidence was closed and the matter was taken up for final arguments. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused no.1 beyond reasonable doubts. The testimony of complainant and injured has remained unshaken on the point that the incident happened due to the negligence of accused. The MLC of injured is also proved and there is no material discrepancy occurring in the prosecution evidence.
It is further corroborated by the documentary evidence on record. Therefore, it is prayed that the accused no.1 be convicted of alleged offences.
20. Per contra, the Ld. LAC for accused has strenuously urged State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.11/28 Digitally signed BHARTI by BHARTI GARG GARG Date: 2022.06.09 15:19:11 +0530 for acquittal of accused on various grounds. It is contended that it is not established beyond all reasonable doubts that accident was caused by offending vehicle or that accused no.1 was driving the offending vehicle on the date of incident as there are glaring inconsistencies in the testimonies of main witnesses. The owner of offending vehicle was not examined by prosecution during trial to prove that accused no.1 was driving the vehicle and latter was arrested even before the notice u/S 133 of MV Act was served. It is further submitted that prosecution has miserably failed to prove the ingredient of rashness or negligence on the part of accused no.1 and the mechanical inspection report is not proved. It is argued that false case has been lodged against accused no.1.
21. Arguments heard. Record perused. Considered.
22. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts. The failure to do so would necessarily result in acquittal of accused. It has been held by Hon'ble Punjab & Haryana High Court in Sadhu Singh Vs. State of Punjab (1997) 3 RCR (Cri) 421: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
23. Section 279 IPC proscribes the driving of vehicle on a public State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.12/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:19:26 +0530 way in such a rash or negligent manner so as to endanger human life or likely to cause hurt or injury to any person. Secondly, the provision of Section 338 IPC prescribes punishment for causing grievous hurt to any person by such rash or negligent act. In the instant case, the prosecution is required to prove the following three points to bring home the guilt of accused under the aforementioned provisions: (a) the injured received grievous injuries as a result of impact of offending vehicle dashing on the divider, (b) the offending vehicle was being driven by accused no.1 at the relevant time, and (c) the accused was driving the offending vehicle rashly or negligently.
Whether the injured received grievous injuries as a result of impact of offending vehicle dashing on the divider?
24. At the outset, the fact that the injured received grievous injuries is not in dispute. Both PW1 Shiv Singh Rana and PW3 Vishal Rana have categorically deposed that PW1 sustained injuries on his head and right shoulder in the road accident after which he was immediately rushed to Fortis Hospital, Vasant Kunj. The unrebutted MLC Ex.PW2/A dated 30.08.2016 corroborates the fact that injuries were caused to PW1 on his chest, right arm and shoulder and further, these injuries were opined as grievous on 06.09.2016.
25. Having said that, the main apple of discord raised by accused is that the vehicle in which the injured and complainant met with accident was not the offending vehicle. First and foremost, it may be emphasized that the case of prosecution hinges primarily on the testimonies of PW1 Shiv Singh Rana, PW3 Vishal Rana and PW4 HC State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.13/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:19:37 +0530 Raveendran. While PW1 and PW3 were travelling in the offending vehicle itself, PW4 is alleged to have seen the entire incident when he was on duty at the spot of incident. However, a closer scrutiny of the statement of PW4 reveals that material contradictions have emerged in his crossexamination which raises suspicion over his witnessing the accident. He further admitted that he had refreshed his memory from the police file before entering the witness box which altogether diminishes the evidentiary value of his statement.
26. Be that as it may, PW1 and PW3 have deposed in consonance with the prosecution story that they had taken the taxi/offending vehicle from their house to go to airport on 30.08.2016 at about 4.15 am; that they were sitting on the back seat of the offending vehicle and it was being driven at rashly and negligently at high speed; that when they reached in the airport area, the offending vehicle hit the divider and ran over it because of which the injured fell down in the space between front and back seat and suffered aforementioned injuries.
27. Further, PW1 correctly specified the registration number of offending vehicle in his testimony. Both the witnesses identified the said vehicle correctly through the photographs Ex.P1. It is clear from the photographs that the bumper of the offending vehicle is completely damaged which, going by common logic, could occur as a result of collision of the nature described by the injured and complainant. The testimony of PW3 is corroborated by his statement Ex.PW3/A. The site plan Ex.PW7/A is a reliable piece of evidence and was prepared at the instance of PW3 on the same day. It depicts the position of State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.14/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:19:48 +0530 offending vehicle at point B which is adjacent to the divider on which the offending vehicle is stated to have dashed at point A. The seizure proceedings qua the offending vehicle have not been challenged, and it records that the offending vehicle was seized on 30.08.2016 in an accidental condition with broken bumper. The fact that the offending vehicle was found at the spot of incident strengthens the inference that it was involved in the incident as stated by the injured and complainant.
28. Nothing substantial could be elicited in the cross examination of either of these witnesses to discredit their testimony. Moreover, the failure to prove mechanical inspection report in evidence is not fatal to prosecution case as firstly, the mechanical inspector could not be examined in court as he had expired for which no blame can be pinned on the prosecution; secondly, it would have only served the purpose of corroboration and even in absence thereof, there is other clinching evidence on record.
29. In an abortive attempt to dismantle the prosecution case, it is argued by Ld. LAC for accused that the allegations cannot be taken to be proved beyond all reasonable doubts only on the testimony of PW1 and PW3 as they are interested witnesses and the only independent witness examined in the present case, i.e. PW4 HC Raveendran is unworthy of credit. There is a basic fallacy in this argument for the reason that the defence has not been able to create any major dent in the ocular evidence of injured and complainant. The mere fact that they were eventually at the receiving end of the incident in question does not corrode their credibility in any manner, rather fortifies it. No State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.15/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:20:01 +0530 false motive or previous enmity has been imputed by the defence on their part. The unimpeached evidence of injured and complainant cannot be sidelined solely on the basis that deposition of PW4 HC Raveendran does not inspire the confidence of this court. Independent of the evidence of PW4, their statements are worthy of credence and there is no occasion for the court to disbelieve these witnesses.
30. It is a well settled principle of law that once the eye version is given, especially by the injured himself, the court would ordinarily rely upon such version unless it suffers from serious infirmities or improvements. In that regard, reference can be had to the following observations of Hon'ble Supreme Court in Abdul Sayeed Vs. State of M.P. (2010) 10 SCC 259: "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness."
31. The accused has next sought to tarnish the reliability of PW1 and PW3 by contending that the record pertaining to booking of offending vehicle from local taxi stand, their flight tickets as well as purpose of their visit to Lucknow from the airport is not proved by prosecution. In the opinion of this court, this by itself is not sufficient State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.16/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:20:11 +0530 to doubt the substantive evidence of PW1 and PW3 as firstly, the said record only has corroborative value and secondly, apart from bare suggestions in their crossexamination, nothing has been brought by defence on record to rebut the fact of their presence in the offending vehicle at the spot.
32. Certain other inconsistencies have been pointed out by Ld. LAC in the testimony of PW3 to question his veracity. It is asserted that PW3 stated in crossexamination that he had dialled 100 number after the incident but DD number qua the same is not record. PW3 could not tell the registration number of offending vehicle in his court testimony. Further, the statement Ex.PW3/A was given by complainant at 8.35 AM as per rukka but PW3 has stated in his crossexamination that he had met the IO at about 12.0001.00 PM. Now, it is a settled principle that such discrepancies in the statements of witnesses which are neither material nor serious enough to affect the case of the prosecution adversely are to be ignored by the courts. Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence.
33. In that regard, one may refer to the following observations of Hon'ble Supreme Court in Ashok Kumar Vs. State of Haryana (2010) 12 SCC 350: "42. This Court has to keep in mind the fact that the incident had occurred on 1651988 while the witnesses were examined after some time. Thus, it may not be possible for the witnesses to make State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.17/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:20:34 +0530 statements which would be absolute reproduction of their earlier statement or line to line or minute to minute correct reproduction of the occurrence/ events. The Court has to adopt a reasonable and practicable approach and it is only the material or serious contradictions/variations which can be of some consequence to create a dent in the case of the prosecution. Another aspect is that the statements of the witnesses have to be read in their entirety to examine their truthfulness and the veracity or otherwise. It will neither be just nor fair to pick up just a line from the entire statement and appreciate that evidence out of context and without reference to the preceding lines and lines appearing after that particular sentence. It is always better and in the interest of both the parties that the statements of the witnesses are appreciated and dealt with by the Court upon their cumulative reading."
34. The statement of PW3 was recorded after a period of nearly three and a half years from the date of incident and the inconsistencies highlighted are insubstantial in nature. In fact, the truthfulness of the witnesses is demonstrated from the fact that PW3, even in his examinationinchief, stated that he did not remember the registration number of offending vehicle. Nothing prevented him from stating the number by taking note of it prior to coming to court as he appears to be a welleducated person. The FIR Ex.A1 was registered at 9.20 AM without any undue delay. Also, the PCR call Ex.A4 is on record and admitted by accused. Merely because PW3 had also dialled 100 number does not reflect that his was the first PCR call as no further suggestion has been put forth by accused in crossexamination of either the complainant or IO. It is no gainsay that the statements of witnesses have to be read as a whole and the court should not pick up a State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.18/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:20:46 +0530 sentence in isolation from the entire statement and ignoring its proper reference, use the same against or in favour of a party. Thus, the court has no hesitation in holding that the both PW1 and PW3 have given a correct account of the accident.
35. The Ld. LAC for accused has laid great stress on the fact that the offending vehicle was attached with Ola Cabs and therefore, it could not have been booked from the local taxi stand by PW3. In as much as the said fact has come on record during the evidence of DW1 Rajan Kashyap, the witness admitted in crossexamination that it was possible for a vehicle operating under Ola Company to be driven by a driver other than the person on company record. Hence, it would be incorrect to deduce that the offending vehicle could not have been booked by the complainant only because it was also operating under the Ola Company. Suffice to say, the evidence adduced in defence is not of such nature as to rebut the oral account of prosecution witnesses. In view of the aforesaid discussion, it is clear that the injured suffered grievous hurt due to the intensity of collision of offending vehicle on the divider at the spot of incident.
Whether the offending vehicle was being driven by accused no.1 at the relevant time?
36. Both PW1 Shiv Singh Rana and PW3 Vishal Rana have unequivocally stated the name of driver of offending vehicle as Ganesh Kumar Gupta in their court testimonies. They also correctly identified him in court during trial. The name of accused no.1 was mentioned by the complainant in his complaint Ex.PW3/A as well and the FIR also State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.19/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:20:56 +0530 records the name of accused no.1, which minimises the possibility of concoction. Moreover, the documents pertaining to offending vehicle were seized from accused no.1 on the day of incident itself, which lends support to the fact that he was driving the offending vehicle on that date.
37. It is also established from the evidence of PW3 that accused driver was arrested by IO at hospital in his presence. Since PW1 and PW3 had booked the offending vehicle from their house till airport and the accused driver remained with them in the hospital as well, the injured and complainant had duly seen him, though for a short but reasonable period of time, thereby affording sufficient time and opportunity to them to gain the enduring impress of his identity on mind and memory.
38. Furthermore, the accused no.1 stated under Section 281 read with 313 Cr.P.C that he had accompanied the complainant and injured from the spot of incident till hospital to merely help them and that he was not driving the offending vehicle. At this juncture, this court seeks to rely on the following observations of The Hon'ble High Court of Bombay in the case of State of Maharashtra Vs. Alister Anthony Pareira 2007 SCC On Line Bom 1489 (and further affirmed by Hon'ble Apex Court in appeal) as regards the use of statement made by accused without oath during the stage of Section 313 Cr.P.C.: "While rejecting this contention we would also observe that the admission or confession of the accused in his statement under Section 313 of the Code, in so far as it provides support or even links State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.20/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:21:06 +0530 to, or aids the case of the prosecution proved on record, can also be looked into by the court in arriving at its final conclusion. It will be more so when explanation in the form of answers given by the accused under Section 313 of the Code are apparently untrue and also when no cross examination of the crucial prosecution witnesses was conducted on this line."
39. Thus, the conjoint reading of testimony of prosecution witnesses and the statement of accused no.1 indicates beyond reasonable doubts the presence of accused no.1 at the spot. Although accused no.1 abjured his guilt by submitting that he was not driving the offending vehicle, but the same is not substantiated anywhere on record and deserves to be jettisoned from consideration. In addition to this, the said defence was taken by accused no.1 for the first time during his statement and not even once, the suggestion to that effect was made to PW1 and PW3. In fact, suggestion was put to PW1 and PW3 that they had met the accused no.1 for the first time at police station which runs foul of the statement of accused no.1.
40. In other words, as the inculpatory part of the statement of accused no.1 is in tandem with the evidence on record, it can be relied upon in aid of prosecution case to prove that that accused no.1 was present at the spot as he was driving the offending vehicle. Besides, no substantial challenge has been made in the crossexamination of PW1 and PW3 by accused on that aspect apart from a bald suggestion that the offending vehicle and accused were not involved in the accident. No major rebuttal has surfaced during the crossexamination of these witnesses to vitiate the evidence of identification and there is no reason State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.21/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:21:15 +0530 on record for the court to doubt their credibility.
41. To buttress the defence, it is contended on behalf of accused no.1 that adverse inference must been drawn against the prosecution as the IO arrested him even before the notice under Section 133 of MV Act was served upon the owner and the owner has not been examined by prosecution as a witness. The contention is without merit as the identification of accused no.1 is established independent of the notice, which would have only acted as a corroborative piece of evidence. The complaint was lodged against the accused driver by naming him and the occasion to serve notice upon the owner arose after the registration of FIR. The failure to prove the notice by procuring the evidence of owner, who is accused no.2, is not material in view of the unshaken testimonies of PW1 and PW3. Therefore, this court unhesitatingly concludes that the driver of offending vehicle at the time of incident was accused no.1.
Whether accused no.1 was driving the offending vehicle rashly or negligently?
42. A brief understanding of the expressions 'rash' and 'negligence' is imperative before adjudicating upon the manner of driving of offending vehicle in the present facts and circumstances. The Hon'ble Supreme Court observed in Alister Anthony Pareira Vs. State of Maharashtra (2012) 2 SCC 648 as hereinunder: "37. In Empress of India v. Idu Beg ILR (1881) 3 All 776, Straight J., explained the meaning of criminal rashness and criminal negligence in the following State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.22/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:21:25 +0530 words:
"...criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence 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."
The above meaning of criminal rashness and criminal negligence given by Straight, J. has been adopted consistently by this Court."
43. In view thereof, it is clear that in order to label the rash act of accused as criminal, it should be of such nature as would imply complete recklessness or indifference towards the hazardous consequences which may ensue, i.e. the culpability arises from acting hastily despite consciousness. Similarly, a negligent act would be culpable in criminal law if there has been a gross neglect in duty of exercising reasonable care. In accident cases, rashness and negligence to be established by the prosecution must be of nature culpable or gross, and not something merely based upon an error of judgment. Reliance may be placed on Syad Akbar Vs. State of Karnataka (1980) 1 SCC 30 wherein the Hon'ble Supreme Court has held that: "An error of judgment of the kind, such as the one in the instant case, which comes to light only on post State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.23/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:21:37 +0530 accident reflection, but could not be foreseen by the accused in that fragmented moment before the accident, is not a sure index of negligence, particularly, when in taking and executing that decision the accused was acting with the knowledge and in the belief that this was the best course to be adopted in the circumstances for everyone's safety."
44. Adverting to the present case, PW1 Shiv Singh Rana and PW3 Vishal Rana coherently deposed that the accused no.1 was driving rashly due to which he dashed the offending vehicle on the divider at the spot. PW1 also stated that the speed of offending vehicle was high through out the journey. PW3 additionally stated that accused no.1 was driving the vehicle in drowsiness and was not alert. Not a single suggestion has been put in the crossexamination of witnesses on the manner of driving by accused no.1 and their testimonies in that regard are unrebutted.
45. It is pertinent to throw light on the circumstances surrounding the incident in question. The incident took place in the broad day light at about 5.155.30 AM in the month of August. It is not the case of defence that there was any obstruction in the visibility at that time. It is further significant to note that the offending vehicle ran over the divider located on the straight road towards departure of airport area, as is depicted in the site plan Ex.PW7/A. The site plan corroborates the description of accident narrated by PW1 and PW3.
The offending vehicle is shown to hit the divider at the starting point of divider itself and it was also found to be standing with broken bumper just adjacent to the said starting point of divider after the accident.
State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.24/28
Digitally signed
by BHARTI
BHARTI GARG
GARG Date:
2022.06.09
15:21:48 +0530
46. Now, dividers are constructed for the purpose of ensuring lane driving. A duty is imposed under Rule 6 of Motor Vehicles (Driving) Regulations, 2017 (henceforth, 'Regulations') not to drive over the dividers, or any other solid line for that matter except in case of obstructions on road. Needless to mention, divider is a static object and visible from a sufficiently far distance so as to give time to the driver to retain control over the vehicle. Whenever a vehicle approaches the divider, the driver owes an extra duty of care to ensure safety of the persons in and around the vehicle by regulating the speed and way of vehicle in a manner as not to drive on or hit the divider. This duty enhances in case of vulnerable persons like children, elderly persons, etc according to Rule 5(4) of the Regulations.
47. In such an event, the accused no.1 was under a bounden duty to slow down the offending vehicle when he reached the airport area and to keep it at a safe distance from divider. He owed special care towards injured who was an elderly passenger travelling in the vehicle. The fact that injured suffered grievous injuries due to the impact of collision makes it evident that the speed of offending vehicle was fast. It is mandated under the Regulations that speed should be such as to have control over the vehicle at all times taking into consideration the condition of vehicle, road, visibility, etc.
48. The failure on the part of accused driver to exercise reasonable caution in that respect and dashing the vehicle on divider at such speed implies that he was not in control of the vehicle. The court is cognizant of the legal position that merely driving at high speed does not tantamount to rashness or negligence. Nonetheless, when high State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.25/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:21:58 +0530 speed is coupled with such attending circumstances as is indicative of losing control over vehicle without the intervention of any uncontrollable factor, the same would qualify as rash and negligent driving.
49. Further, in Ravi Kapur Vs. State of Rajasthan (2012) 9 SCC 284, the Hon'ble Supreme Court held that the doctrine of res ipsa loquitur is equally applicable to criminal cases provided that basic fact of accident is proved. The relevant paragraphs are reproduced hereinbelow: "We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.26/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:22:07 +0530 may be stated as :The event would not have occurred but for someone's negligence. The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event. Accused was negligent and owed a duty of care towards the victim."
50. Applying the abovesaid principle to the facts of present case, it is amply clear that the incident could not have happened without the negligence of someone as the offending vehicle had run over the divider which would not ordinarily happen but for the omission to take reasonable care. Further, there is not even an iota of evidence on record to show any third party interference or such circumstance as would be beyond the control of the accused driver. Indisputably, he owed a duty to passengers travelling in his vehicle which he failed to fulfil on several counts as discussed in foregoing paragraphs. In such a scenario, the doctrine of res ipsa loquitur comes into play and the burden shifts on the accused driver to establish that the accident did not happen due to negligence on his part, which he has miserably failed to. Accordingly, there are sufficient and cogent evidences to prove that accused no.1 was driving the offending vehicle in a rash and negligent manner when the incident occurred. Lastly, the accused no.1 did not hold a valid driving licence on the date of incident and the said fact is apparently not in dispute. Therefore, he is also guilty of driving offending licence without holding licence as per law.
Conclusion:
51. The upshot of foregoing discussion is that the prosecution has brought formidable evidence on record to prove beyond the State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.27/28 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.06.09 15:22:17 +0530 shadow of all reasonable doubts that accused no.1 was driving the offending vehicle in a rash and negligent manner on 30.08.2016 on the public way as to endanger human life and that because of such act of accused no.1, he caused grievous hurt to the injured by dashing the offending vehicle on the divider at the spot of incident at about 5.15 AM. It is also established that accused no.1 was driving the offending vehicle without holding a valid driving licence in that regard.
52. Resultantly, the accused Ganesh Kumar Gupta S/o Sh. Akal Sahab R/o H. no.60A, Nayay Khand III, Indra Puram Ghaziabad, U. P. is hereby convicted of the offences punishable under Sections 279/338 of The Indian Penal Code, 1860 and Section 3/181 of Motor Vehicles Act, 1988.
53. Let the convict be heard separately on the quantum of sentence.
54. Copy of this judgment be given free of cost to the convict.
Pronounced in open court in the Digitally signed
by BHARTI
presence of accused no.1 on 09.06.2022. BHARTI GARG
GARG Date:
2022.06.09
15:22:25 +0530
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/09.06.2022
It is certified that this judgment contains twentyeight pages and each page has been signed by the undersigned. Digitally signed BHARTI by BHARTI GARG GARG Date: 2022.06.09 15:22:33 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/09.06.2022 State Vs. Ganesh Kumar Gupta CNR no. DLSW020125462016 Page no.28/28