Delhi District Court
Bal Kumar vs The State on 31 January, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-014815-2019
Criminal Appeal No.: 436/2019
BAL KUMAR,
S/o. Shri. Ram Krishan,
R/o. VPO Rudhana,
PS Noorpur Vedi, District Ropar,
Punjab. ... APPELLANT
VERSUS
STATE (NCT OF DELHI) ... RESPONDENT
Date of Institution : 31.10.2019
Date when judgment was reserved : 24.12.2024
Date when judgment is pronounced : 31.01.2025
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 22.05.2019 (hereinafter referred to as 'impugned judgment'), passed by the learned Metropolitan Magistrate-06/Ld. MM-06, Central, Tis Hazari Courts, Delhi (hereinafter referred to as the 'Ld. Trial Court/Ld. MM') in case bearing, "State v. Bal Kumar, CIS No. 294160/2016", arising out of FIR No. 136/2005, P.S. Civil Lines, convicting the appellant for the offences punishable under Sections 279/337/304A of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), and the consequent order of sentence dated 01.10.2019 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court, awarding the appellant; simple imprisonment for a period of 06 (six) months along with fine of Rs. 1,000/- (Rupees One Thousand only), in default of C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page 1 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.01.31 16:53:06 +0530 payment of fine, to undergo simple imprisonment for a period of 02 (two) days for the offence under Section 279 IPC; rigorous imprisonment for a period of 03 (three) months along with fine of Rs. 5,000/- (Rupees Five Thousand only), in default of payment of fine, to undergo simple imprisonment for a period of 10 (ten) days for the offence under Section 337 IPC; and rigorous imprisonment for a period of 01 (one) year along with fine of Rs. 10,000/- (Rupees Ten Thousand only), in default of payment of fine, to undergo simple imprisonment for a period of 20 (twenty) days for the offence under Section 304A IPC, sentences to run concurrently, and out of the said fine amount of Rs. 16,000/- (Rupees Sixteen Thousand only), Rs. 6,000/- (Rupees Six Thousand only) was directed to be paid to the injured, namely, Sh. Raj Pal and Sh. Mahavir (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 04.05.2005, on receipt of PCR Call regarding an accident vide DD No. 25PP, the concerned police official proceeded towards the accident spot, i.e., Outer Ring Road, Near Majnu ka Tila, Red Light, Delhi ( hereinafter referred to as the 'spot'). On reaching there, one truck bearing registration no. HR-38B-0095 (hereinafter referred to as the 'offending vehicle') and bus bearing registration no. HR-61-1551 (hereinafter referred to as the 'bus') were found in accidental condition. Correspondingly, one person, was also found lying dead at the accident spot. The police officials are asserted to have determined at that point in time that the injured persons had been taken to Trauma Centre, whereupon the concerned police official C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page 2 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.01.31 16:53:11 +0530 proceeded towards the said Hospital. Upon reaching there, the police officials are asserted to have collected the MLC of the injured persons as well as the statement of the complainant/victim, namely, Vijay Singh was recorded. Markedly, under his statement, Vijay Singh proclaimed that on the said day, i.e., on 04.05.2005, he took the bus bearing no. HR-61-1151 at around 03:00 p.m. from ISBT to Dadri. At that point in time, as per the complainant, Ramesh Chander was deputed/assigned as a conductor in the bus. As per the complainant, at around 03:15 p.m., as he/the complainant had taken the bus, around 50 mts. afar from Majnu ka Tila, Red Light, one Jaswanider Singh @ Bal Kumar S/o. Ram Kishan (the appellant herein), whose name, the complainant asserted he came to know later on, however, was present at that point in time on the bed, adjacent to the complainant, came from front, from Wazirabad side in the offending vehicle. The complainant further proclaimed that the appellant, while driving his truck bearing no. HR-38B-0095, in high speed as well as rash and negligent manner, reached from the opposite side of the road and while breaking/jumping over the divider, hit his complainant's bus, proceeding towards Wazirabad (गफलत व लापरवाही से चलाता हु आ आया और divider को तोड कर मेरी वजीराबाद की तरफ जाती बस में टक्कर मार दी). In the said process, as per the complainant, he, conductor as well as passengers of bus, the appellant as well as one person sitting in the offending vehicle sustained injuries. As per the complainant, the said person sitting in the offending vehicle, died on the spot and subsequently, the victims as well as the appellant are asserted by the complainant to have been taken to the Hospital. Markedly, on the basis of the complainant's instant complaint, FIR was registered, and investigation ensued. Relevantly, during the course C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page 3 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.01.31 16:53:15 +0530 of investigation, the concerned police official(s) inter alia prepared the site plan, MLCs of the victims were collected, post-mortem of the deceased as well as his identification was got conducted and the statements of witnesses recorded.
2.2. Appositely, upon conclusion of investigation in the instant case, chargesheet was filed before the Ld. Trial Court for the offence under Sections 279/337/304A IPC. Notably, consequent upon Ld. Trial Court's taking cognizance of the offence on 17.04.2006 and upon compliance of the provisions under Section 207 Cr.P.C., notice in terms of the provisions under 251 Cr.P.C. for the offences under Sections 279/337/304A IPC was framed against the appellant on 09.04.2010 and the trial commenced. Apposite at this stage to reproduce the relevant extract from the notice dated 09.04.2010, as under;
"...It is alleged against you Bal Kumar S/o Sh. Ram Kishan as under:-
That you on 4.5.05 at about 3.15 PM at Outer Ring Road, Near Majnu ka Tila, Red Light, Delhi situated within the jurisdiction of PS Civil Lines , you were found driving Truck No. HR-38B-0095 in a rash and negligent so as to endanger human life and personal safety of others and while driving you hit against another bus No. HR-61-1551. Due to collision the driver of the bus Vijay Singh, passenger Barkhu, Rajpal, conductor of the bus Ramesh Chander S/o. Shish Ram and Mahavir sustained simple injuries and passenger Ramesh Kumar S/o Ram Singh died and thereby you committed offences punishable u/s 279/337/304A IPC and within my cognizance. Show cause why you should not be punished for the abovesaid offences or you have to make any defence..."
(Emphasis supplied) 2.3. During the course of trial, prosecution examined 10 (ten) witnesses/prosecution witnesses, i.e., PW-1/HC Gajraj; PW-2/ASI Satish Kumar; PW-3/Vijay Singh; PW-4/Ct. Satish C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page 4 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.01.31 16:53:18 +0530 Chander; PW-5/Ramesh Chander; PW-6/Raj Pal; PW-7/Raj Kumar; PW-8/Multan Singh; PW-9/Retd. SI Krishan Chander; and PW-10/Mahavir. Relevantly, during the course of proceedings before the Ld. Trial Court on 05.11.2018, the appellant admitted the mechanical inspection reports for bus no. HR-61-1551 and TATA truck no. HR-38B-0095, both, prepared by ASI Devender Kumar as Ex. A1 and Ex. A2, respectively; post-mortem report no. 584 of the deceased Ramesh Kumar, prepared by Dr. Kulbhushan Grover, as Ex. A3; MLC Nо. 63350 of Barkhu, prepared by Dr. Deepak Kumar Singh and opinion on injury given by Dr. Jitender Kumar, as Ex. A4; X-ray report on MLC No. 63350 of Barkhu, prepared by Dr. Sudhir Kumar, as Ex. A5; MLC no. 63353 of patient Ramesh Chander, prepared by Dr. Deepak Kumar and opinion given by Dr. Naveen Kushwaha, as Ex. A6; MLC No. 63354 of patient Rajpal, prepared by Dr. Girish Chand Prabhat and opinion given by Dr. Arvind Kumar, as Ex. A7; MLC No. 63352 of patient Mahavir, prepared by Dr. Girish Chandra Prabhat and opinion on injury given by Dr. Naveen Kushwaha, as Ex. A8;
MLC No. 63351 of patient Vijay Singh, prepared by Dr. Girish Chandra Prabhat and opinion on injury given by Dr. Naveen Kushwaha, as Ex. A9; X-ray report on MLC No.63352 of Mahavir, prepared by Dr. Sudhir Kumar as Ex. A10; X-ray report on MLC No. 63354 of patient Rajpal, prepared by Dr. Sudhir Kumar, as Ex. A11; and X-ray report on MLC No. 63351 of patient Vijay Singh, prepared by Dr. Sudhir Kumar as Ex. A12, in terms of the provisions under Section 294 Cr.P.C. Correspondingly, the appellant further admitted 17 (seventeen) photographs, prepared by PW-HC Nand Lal as Ex. A13 (Colly.) and body identification memo of deceased, namely, Ramesh C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page 5 of 34 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.01.31 16:53:22 +0530 Kumar, prepared at the instance of PW Ram Singh by IO/SI Krishan Chander as Ex. PW9/G, on 04.02.2019. Consequently, ASI Devender Kumar, Dr. Kulbhushan Grover, Dr. Deepak Kumar Singh, Dr. Jitender Kumar, Dr. Sudhir Kumar, Dr. Deepak Kumar, Dr. Naveen Kushwaha, Dr. Girish Chand Prabhat, and Dr. Arvind Kumar were dropped from array of prosecution witnesses on 05.11.2018, whilst HC Nand Lal and Ram Singh were dropped from array of prosecution witnesses on 04.02.2019, in view of the said admission on the part of the appellant. Subsequently, on conclusion of prosecution evidence, recording of statement of the appellant under Section 313/281 Cr.P.C. on 15.05.2019, as well as on conclusion of arguments on behalf of the appellant as well as by/on behalf of State, as aforementioned, the Ld. Trial Court vide impugned judgment and order, while holding the appellant guilty of the offences punishable under Sections 279/337/304A IPC, sentenced him in the manner, as noted hereinabove. 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 fervently argued that the impugned judgment and order were passed by the Ld. Trial Court in utter violation of the principles of natural justice, equity and good conscience. Further, as per the Ld. Counsel, the findings arrived at by the Ld. Counsel are not supported by the evidence on record. Ld. Counsel further 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 C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page 6 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.01.31 16:53:26 +0530 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-3/complainant in his cross examination deposed that he could not see the appellant at the time of the alleged occurrence and that the information regarding the appellant was provided to him by the police officials, conviction of the appellant could not have been premised on the evidence of the said witness. Even otherwise, as per Ld. Counsel for the appellant, testimony of PW-3/complainant is not reliable and trustworthy and the prosecution has not been able to prove its case against the appellant, beyond a pale of doubt in the instant case. As per the Ld. Counsel, the prosecution has further failed to prove the necessary ingredients of the charges alleged against the appellant and the Ld. Trial Court has erroneously reached a conclusion that it was due to rash and negligent act on the part of the appellant that the death of the deceased was caused. Even otherwise, as per the Ld. Counsel, the Ld. Trial Court failed to consider/appreciate that the appellant was not driving the offending vehicle on the alleged date, time and place, rather, it was the deceased who was driving the truck in question and the appellant was sitting in the truck as a helper. 3.2. Learned Counsel for the appellant further contended that the Ld. Trial Court failed to appreciate that the person by whom the first information of the incident was allegedly passed to the police officials was not even examined. Further, as per Ld. C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page 7 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.01.31 16:53:30 +0530 Counsel, Ld. Trial Court did not even consider that the prosecution deliberately opted not to produce any public persons as witnesses in the instant case. 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 in the instant case. Even otherwise, Ld. Counsel further fervently contended that the Ld. Trial Court did not appreciate that the truck and bus collided with each other from the driver's end and as a result of the same, the driver of the offending vehicle/truck died due to said collision and the appellant survived as he was the helper in the said vehicle and sitting adjacent to the driver, who passed away in the incident. 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 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. As per the Ld. Counsel, the Ld. Trial Court did not C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page 8 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.01.31 16:53:35 +0530 consider that the appellant was the sole bread earner of his family of two minor children and spouse and in case, relaxation from sentence is not accorded to the appellant, grave injustice/depravity would befall on the appellant's family members. 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, it was vehemently entreated that 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; Shaikh Umar Ahmed Shaikh & Anr. v. State of Maharashtra, AIR 1998 SC 1922; Gireesan Nair & Ors. v. State of Kerala, Crl. Appeal No. 1864- 1865/2010, dated 11.11.2022 (SC); Amrik Singh v. State of Punjab, Crl. Appeal No. 993 with 992/2012, dated 11.07.2022 (SC); Paul George v. State NCT of Delhi, 2008 (4) SCC 185; State v. Sanjiv Bhalla & Anr., (2015) 13 SCC 444; and Saji Charivukala Puthenveedu, Kadambanadu v. State of Kerala, Crl. Rev. Pet. No. 1895/2006, dated 14.11.2023 (Hon'ble Kerala HC).
4. Per contra, Ld. Addl. PP for the State submitted that the impugned judgment and order were passed by the Ld. Trial 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 testimonies of the eyewitness/complainant/PW-3 and other victims have not only been consistent, rather, unblemished as well as lucidly point towards the only inference of guilt of the appellant. 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 C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page 9 of 34 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.01.31 16:53:39 +0530 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. Even otherwise, as per the Ld. Addl. PP for the State, sufficient leverage has been accorded to the appellant by the Ld. Trial Court, while passing the order of sentence, adopting a lenient view. Accordingly, it was prayed that no relaxation may be granted to the appellant considering the gravity of allegations and the victims in the instant case.
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/written arguments filed on behalf of the appellant and the aforenoted case laws, thoroughly perused.
6. Before proceeding with the evaluation of the rival contentions raised, 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;
"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 C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page10 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.01.31 16:53:43 +0530 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. Similarly, 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 conjoined 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 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 1 State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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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.
*** *** ***
337. Causing hurt by act endangering life or personal safety of others-Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
*** *** *** 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 2 Vinod 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. Correspondingly, to constitute an offence under Section 337 IPC, the prosecution is required to satisfy that the injury had been caused to any person by the accused's commission of any rash or negligent act and that such injuries are simple in nature. Quite evidently, in order to sustain a conviction under the provisions under Sections 279, 337 and 304A IPC, the prosecution C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page13 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.01.31 16:53:55 +0530 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 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 C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page14 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.01.31 16:53:59 +0530 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 Mohd. Aynuddin v. State of A.P., (2000) 7 SCC 72, while cogitating on 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 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.
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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 "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/victim/PW-3/Vijay Singh, who deposed before the Ld. Trial Court that he was a driver in Haryana Roadways and that on 04.05.2005 at about 03:00 p.m., he/the complainant along with the conductor, namely, Ramesh Chand had left for Dadri from ISBT in bus bearing no. HR-61- 1551. PW-3 further proclaimed that he was driving the said bus and at around 03:15 p.m., when he/PW-3 reached at red light, Majnu Ka Tilla, a truck bearing no. HR-38B-0095 (offending vehicle), being driven in a high speed and rash and negligent manner came from the side of Wazirabad and hit PW-3's bus on the lateral driver side, after breaking the divider. Further, as per PW-3, the appellant, Jaswinder @ Bal Kumar was the driver of the offending vehicle, as well as correctly identified by PW-3 as the accused before the Ld. Trial Court. Corresponding, as per PW-3, due to the said accident, he/PW-3 along with the conductor and other passengers sustained injuries. PW-3 further asserted that the conductor of the truck/offending vehicle also sustained injuries and died on the spot. As per PW-3, one of the passengers made a 6 Jayprakash Laxman Tambe v. State of Maharashtra, 2003 SCC OnLine Bom 1176.
C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page16 of 34
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.01.31
16:54:06 +0530
call at 100 number and PCR Van took them to Hospital. Further, as per PW-3, the police recorded his/PW-3's statement in the Hospital (Ex. PW-3/A), bearing PW-3's signatures at point A. Pertinently, PW-3 further identified the offending vehicle from its photographs produced before the Ld. Trial Court. Markedly, PW-3 asserted under his cross-examination dated 09.09.2013 by/at the behest of the accused, as under;
"XXX Sh. ***, Ld. Counsel for the accused. On the day of incident, I came to ISBT with the above mentioned bus at about 2.45 pm from Dadri and thereafter, at about 3.00 pm left for Dadri. On the day of incident I joined the duty at 10.00 am and took the bus for Dadri for first round i.e. pehla chakkar. The distance between the place of accident and red light was about 50 meters. The speed of the offended truck might had been 90/95 kmph. No traffic police personal were present at the red light where the accident happened. It is wrong to suggest that 4-5 traffic police personal were present at the spot. It is further wrong to suggest that accused was not driving the offending vehicle at a speed of 90/95 kmph. The road where the accident occured was a three lane is correct that my vehicle was standing in the middle lane. The rear wheels of the offending truck were on the divider after the accident.
Remaining cross is deferred..."
(Emphasis supplied)
15. Relevantly, in his subsequent cross examination on 12.03.2015 by/at the behest of the accused, PW-3 further asserted as under;
"XXX by Sh. ***, Ld. Counsel for accused. I was discharged from hospital at about 08:30- 09.00 pm. I was taken to the hospital by an Ambulance. I was taken to home by my wife after I got discharged from hospital. I have visited the PS after 10-20 days of the incident Vol. As I was not well because I got 24-25 stitches in my chest, head and hand. When I visited the PS I took the copy of FIR. Police officials recorded my statement at the hospital. On 04.05.2005 when incident took place it was raining heavily with little wind. At the time of incident C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page17 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.01.31 16:54:10 +0530 apparently I could saw the distance from 20-25 feet. The speed of my vehicle was slow due to such raining. It is correct that when I was driving I was only focusing on my way. It is correct that there was a tree of kaner at the divider. It is correct that due to tree of Kaner only heavy vehicles could be seen at opposite direction of the road. At the time of accident I cannot see the accused as I was injured badly. It is wrong to suggest that at the time of accident the offending vehicle was not driven by the accused. As accused is also injured in the accident when we i.e. Some other person were also injured in the accident and accused were also taken to hospital in the same ambulance. When my statement was recorded by the police at hospital I came to know by police that the offending vehicle was driven by the accused person. It is correct that offending vehicle was driven in rash and negligent manner as the offending vehicle was coming in speed and has broken the railings. 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-5/Ramesh Chander, who proclaimed before the Ld. Trial Court that he was working as a conductor with Haryana Roadways and that on 04.05.2005, he/PW-5 was the conductor in bus bearing registration no. HR-61- 1551, where PW-3/Vijay Kumar was the driver. PW-5 further asserted that they had started from journey Delhi, ISBT and were going towards Charki Dadri. As per PW-5, when they reach near Manju Ka Tila at about 03:15 p.m., one truck bearing registration no. HR-38B-0095, was coming from the side of Wazirabad and going towards ISBT Kashmere Gate. Correspondingly, PW-5 proclaimed that by driving the said truck, the driver of the said truck, had hit their said bus at front driver side by breaking the divider of the road. PW-5 further avowed that the said truck/offending vehicle was being driven by accused/appellant, Bal Kumar at that point in time, who was correctly identified by C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page18 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.01.31 16:54:14 +0530 PW-5 before the Ld. Trial Court. Further, as per PW-5, he/PW-5 and the driver, namely, Vijay Kumar had sustained injuries, besides other passengers of the bus, who had also sustained injuries as per PW-5. It was further avowed by PW-5 that the helper of the offending truck had expired in the said incident and that the appellant had also sustained injury in the said incident. Correspondingly, as per PW-5, someone made a call after some time and PCR Van reach on the spot and took them to the Hospital, where they were medically examined. PW-5 further identified the offending vehicle from its photographs. Significantly, in his cross examination, PW-5 inter alia declared that on the day of incident there was a heavy downpour as well as winds and further that within 15-20 minutes of the incident, PCR van reached at the spot as well as took them to the Hospital. Significantly, PW-5 further proclaimed under his cross examination, as under;
"...It is wrong to suggest that I did not see the incident. Police Officers had recorded my statement at hospital. It is wrong to suggest the offending truck was parked on the spot or that I had not seen how the incident has taken place. It is wrong to suggest the accused Bal Kishan was not driving the offending truck. It is wrong to suggest that I am deposing falsely at the instance of the police officers. It is wrong to suggest that the accused has been falsely implicated in the present case..."
(Emphasis supplied)
17. Significantly, for the purpose(s) of present discourse, it is also apposite to refer to the deposition of PW-6/Sh. Raj Pal, who deposed on the same lines as that of PW-3 and PW-5 by inter alia avowing that on 04.05.2005, he/PW-6 was going to Bahadurgarh by bus bearing registration no. HR-61-1551 and that on the said day, at around 03:20-3:25 p.m., when they reach Majnu Ka Tilla, near Gurudwara, the offending truck/offending vehicle, C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page19 of 34 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.01.31 16:54:18 +0530 bearing registration no. HR-38B-0095, came from the side of Wazirabad at high speed and hit to the divider of the road and by jumping the divider, the offending vehicle, hit the said bus on the front driver side. PW-6 further affirmed that the offending vehicle was being driven by the appellant on the said day, who was duly identified by PW-6 before the Ld. Trial Court and that he/PW-6 had sustained injury on his leg due to incident. PW-6 further deposed that after about 15 minutes of the incident, police officers reached there and took them to the Hospital and that he/PW-6 also came to know that one person of the offending truck/offending vehicle had died on the spot. Further, as per PW-6, the appellant had also sustained injuries and was also taken to the Hospital with them. PW-6 also identified the offending vehicle from its photographs before the Ld. Trial Court. Apposite at this stage to further reproduce the extract from cross examination of PW-6, wherein he declared as under;
"XXX by Sh. ***, Ld. Counsel for the accused. I was sitting in the said the seat parallel to the driver seat. It is correct that on that day the raining was going on and there was also winds. The Bus was moving at the speed of 30-40 after crossing the red light. On that day, the visibility was more than 100 meters. The wiper of the said Bus was operational. It is wrong to suggest that on that day there was only 10-15 meters visibility due to heavy rain. The offending truck was driving by the accused. It is wrong to suggest that accused was not driving the offending. All injured were taken to the to Hospital by the PCR Van. Some police officials were remain present on the spot when PCR Van took us to the hospital. Police Officers did not record my statement. It is wrong to suggest that I was not eye witness of the incident and this is why police officer did not record my statement. It is wrong to suggest that I am deposing falsely at the instance of the police officers. it is wrong to suggest that the accused has been falsely implicated in the present case..."
(Emphasis supplied) C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page20 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.01.31 16:54:22 +0530
18. Markedly, PW-7/Sh. Raj Kumar asserted in his deposition before the Ld. Trial Court that he was the registered owner of the vehicle bearing registration no. HR-38B-0095/offending vehicle and that he had taken the said truck on superdari. Further, as per PW-7, he received a notice under Section 133 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'MV Act'), being the registered owner of the vehicle, which is Ex. PW7/A, bearing PW-7's signatures at point A. PW-7 further proclaimed that he gave written reply of the notice under Section 133 MV Act (Ex. PW7/B), bearing PW-7's signatures at the point A. Markedly, as per PW-7, the driver of the said vehicle/offending vehicle on the date of incident was the appellant/accused, namely, Bal Kumar, who was correctly identified by PW-7 before the Ld. Trial Court. Appositely, PW-7 was not cross examined by/on behalf of the appellant, despite being afforded an opportunity. Pertinent to also consider the testimony of PW-10/Mahavir, who declared in his deposition that on 04.05.2005, he was going to Jhajhar in Haryana Roadways bus from ISBT, Delhi and around 03:15 p.m., when the bus reached at Majnu ka Tila, Gurudwara, one truck, coming in high speed from opposite side and suddenly crossed the divider of the road and hit against the bus causing injuries to the driver, conductor of the bus and other passengers of the bus. Further, as per PW-10, he was sitting behind the driver in the said bus and, had sustained injuries as well. PW-10 further proclaimed that the driver of the truck and other passengers also sustained injuries and one person in the truck died in the incident. Markedly, PW-10 in his deposition inter alia asserted that he could not see the driver of the offending vehicle at C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page21 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.01.31 16:54:26 +0530 the Hospital as he had sustained injuries in his/PW-10's eyes due to hit by broken glass pieces of bus. Correspondingly, PW-10 further failed to recognize the appellant as the driver of the said truck on the ground of lapse of time.
19. Here, it is further apposite to refer to the testimony of PW-9/Retd. SI Krishan Chander before the Ld. Trial Court, wherein he asserted that on 04.05.2005, he/PW-9 was posted as ASI at PS. Civil Lines, PP Majanu ka Tila and that on the said day, on receipt of DD No. 25PP regarding accident, he/PW-9 along with Ct. Gajraj went to the spot, i.e., Ring Road, near Red Light, Majanu ka Tila. At the spot, as per PW-9, he/PW-9 found one truck bearing no. HR-38B-0095 and one bus bearing no. HR-61- 1551 in accidental condition and also found dead body of one person lying near the truck. PW-9 further proclaimed that he came to know that the remaining injured persons had been shifted to Trauma Centre, so he/PW-9 left Ct. Gajraj at the spot and went to the Hospital, where he/PW-9 collected the MLC of the injured persons. PW-9 further asserted that he also recorded the statement of driver of the bus, namely, Vijay as Ex. PW3/A, being attested by PW-9 at point X, as well as prepared rukka on the said statement (Ex. PW9/A), bearing PW-9's signatures at point X. PW-9 also avowed that he/PW-9 came back to the spot and handed over to Ct. Gajraj for getting the FIR registered, who left the spot and after some time and returned there with the original tehrir and copy of FIR. PW-9 further deposed that he got the photographs of the spot clicked through HC Nand Lal, which 17 (seventeen) photographs, showing both above said vehicles are collectively marked as Mark P. It was further asserted by PW-9 that he/PW-9 prepared the site plan of the spot (Ex. PW9/B), bearing PW-9's signatures at point C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page22 of 34 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.01.31 16:54:29 +0530 X, as well as seized the said vehicle vide memos Ex. PW1/A and Ex. PW1/B, both, bearing PW-9's signatures at point X. PW-9 also deposed regarding him seizing the documents from the cabin of the abovesaid truck vide memo (Ex. PW9/C), bearing PW-9's signatures at point X. As per PW-9, through the said document, he/PW-9 came to know that the ownership of the offending vehicle was in the name of Raj Kumar, whereupon PW-9 served notice under Section 133 MV Act on Raj Kumar (Ex. PW7/A), which was replied vide reply, which is Ex. PW7/B. Further, as per PW-9, on 07.05.2005, he/PW-9 arrested accused/appellant Bal Kumar vide memo, Ex. PW9/D, bearing PW-9's signatures at point X, on the identification of the complainant from the Trauma Centre where accused was under treatment. Correspondingly, as per PW-9, personal search of accused/appellant was conducted vide memo, Ex. PW9/E, bearing PW-9's signatures at point X. PW-9 further inter alia affirmed that he/PW-9 also got the post-mortem of the deceased conducted and thereafter, the dead body was handed over to the relatives vide memo, Ex. PW9/G, bearing PW-9's signatures at point X. Further, as per PW-9, he/PW-9 also obtained the result of the MLC, i.e., of the driver and conductor of abovesaid bus along with its three passengers and the post mortem report of the deceased, helper of the said truck/offending vehicle, besides as per PW-9, he/PW-9 also got the mechanical inspection of the abovesaid vehicle conducted. Lastly, PW-9 identified the appellant as the accused and the offending vehicle from its photographs before the Ld. Trial Court as well as, affirmed that he/PW-9 recorded the statements of the witnesses. Strikingly, in his cross examination, PW-9 affirmed/declared as under;
"XXX by Sh. ***, Ld. Counsel for accused.
C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page23 of 34
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.01.31
16:54:32
+0530
I received the call regarding the accident at about 03:25pm. It is wrong to suggest that on the day of the incident, it was raining heavily with high speed windstorm and that due to the unfavourable weather condition, visibility was severely effected and it was difficult to view even the distance of about 10 meters. It is wrong to suggest that due to abovesaid suggestion, it was not possible to drive the vehicle in a high speed. It is wrong to suggest that the trees of height of about 10-15 feets was planted on the divider of the road near the spot of incident. It is wrong to suggest that due to height of trees, it was not possible to see the driver of the vehicle coming from the opposite direction. It is correct that I have not prepared the site plan at the instance of complainant or any other public witness. Vol. complainant was injured and admitted in the hospital at that time. After 2-3 days, I got the verification of the spot done after complainant was discharged from the Hospital. I did not record the statement u/s 161 Cr. P.C regarding the abovesaid verification of the spot and the site plan with the complainant. It is wrong to suggest at I did not record the statement u/s 161 Cr. P.C as I did not get the verification of the spot done through the complainant. It is wrong to suggest that the documents were prepared while sitting at PS. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
20. Appositely, for the purpose of exhaustiveness, this Court deems it apposite to refer to the testimony of PW-1/HC Gajraj, who affirmed on the same lines as that of PW-9 inter alia regarding him/PW-1's reaching the spot on the date of incident and of the IO's leaving him/PW-1 at the spot, while proceeding towards the Trauma Centre from where IO collected the MLCs of the injured. PW-1 further deposed regarding him being handed over rukka by the IO for the registration of FIR and consequent FIR registration at the instance of PW-1 in the police station Civil Lines. It was further affirmed by PW-1 regarding him returning to the spot with FIR and rukka, as well as seizure of the vehicles involved in the incident. Further, as per PW-1, the dead body was C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page24 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.01.31 16:54:35 +0530 shifted to Subzi Mandi Mortuary by him/PW-1 and the IO reached the Hospital to record the statement of other injured. PW-2/ASI Satish Kumar, in turn, asserted regarding him receiving the rukka from PW-1/HC Gajraj, as sent by ASI Kishan Chand for registration of case and of consequent registration of FIR by him/PW-2. PW-2 further proved the FIR as Ex. PW2/A and his endorsement as Ex. PW2/B.
21. 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-3/Sh. Vijay Singh on the ground that PW-3 in his cross examination asserted that when his statement was recorded by the police at the Hospital, he/PW-3 came to know by the police that the offending vehicle was being driven by the appellant. In particular, as per the Ld. Counsel, identity of the appellant as the driver of the offending vehicle is not forthcoming from the material placed on record. Correspondingly, the appellant, under his statement, recorded in terms of the provisions under Section 313/281 Cr.P.C., remarked as under;
"Que.1 It is put to you that on 04.05.2005, at about 3:15 PM, at Outer Ring Road, Near Majnu-ka-Tilla, Red Light, Delhi, situated within the jurisdiction of PS Civil Lines, you were found driving truck No.HR-38B-0095 in a rash & negligent manner so as to endanger human life and personal safety of others and while driving so, struck against a bus bearing registration No.HR-61-1551 and due to collision, the driver of the bus Vijay Singh, its passengers namely Barkhu, Rajpal, conductor of the bus Ramesh Chander & Mahavir sustained simple injuries on their person and caused death of one of the passengers namely Ramesh Kumar. Thereby, you committed the C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page25 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.01.31 16:54:39 +0530 offences punishable u/s 279/337/304A IPC. What do you have to say?
Ans. It is wrong that I was driving the truck bearing registration No.HR-38B- 0095 on the alleged date, time and place. Rather the deceased namely Ramesh Kumar was driving the aforesaid truck and I was sitting in the truck as helper. It was raining on that day due to which, the truck ran over the divider and was struck against an on-going bus due to which, Ramesh sustained injuries and died at the spot. I also received injuries in the aforesaid accident.
*** *** *** Que.15 Anything else to say?
Ans. I have already stated that I was not driving the offending vehicle on the alleged date, time and place, hence, no accident has been caused by me..."
(Emphasis supplied)
22. Undoubtedly, it has been persistently avowed by the appellant that he was not the driver of the offending vehicle on the date and time of the incident in question and that the same was being driven by the deceased, Ramesh Kumar. However, upon a conscientious perusal of the evidence/material placed on record, the said contention does not find favour with this Court. In fact, when the evidence of PW-3 is read in conjunction with the depositions of PW-5/Ramesh Chander and PW-6/Sh. Raj Pal Singh, the identity of the appellant as the driver of the offending vehicle on the date of incident stands duly proved. In fact, both the said witnesses, i.e., PW-5/Ramesh Chander and PW-6/Sh. Raj Pal Singh, not only identified the appellant as the driver of the offending vehicle before the Ld. Trial Court, rather, denied the suggestion to the contrary, as made by/on behalf of the appellant. Correspondingly, both, PW-5/Ramesh Chander and PW-6/Sh. Raj Pal Singh further denied that they could not see the appellant as the driver of the offending vehicle due to heavy rainfall on the said date. In fact, as aforenoted, PW-6/Sh. Raj Pal Singh specifically C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page26 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.01.31 16:54:43 +0530 denied the suggestion that on the date of incident, visibility was only 10-15 meters. Correspondingly, PW-5/Ramesh Chander denied the suggestion that the offending vehicle was parked on the spot and also denied that he had not seen how the accident had taken place. Apposite to further note that PW-7/Sh. Raj Kumar, owner of the offending vehicle further deposed before the Ld. Trial Court that the same was being driven by the appellant on the date of incident, i.e., on 04.05.2005 at the relevant point in time and as aforenoted, despite being afforded an opportunity, neither any suggestion nor cross examination of PW-7 was conducted by/at the behest of the appellant to disprove that the appellant was not driving the offending vehicle in question on the date and time of the incident. Consequently, in light of the consistent and unrebutted testimonies of PW-3, PW-5, PW-6 and PW-7, this Court is in concurrence with the finding of the Ld. Trial Court that the identity of the appellant as the driver of the offending vehicle on the date and time of the incident in question stands duly proved in the instant case and the defence of the appellant to the contrary, i.e., the offending vehicle was being driven by the deceased, Ramesh Kumar falls flat to the ground.
23. In so far as the contention of Ld. Counsel for the appellant pertaining to non-examination of any other public witness, except PW-3, PW-5, PW-6, PW-7 and PW-10 is concerned, this Court is conscious that the law is settled7 that there is no legal hurdle in convicting a person even 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 7 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page27 of 34
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by ABHISHEK
GOYAL
ABHISHEK
Date:
GOYAL 2025.01.31
16:54:48
+0530
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)
24. 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 the time of incident as prosecution witnesses before the Ld. Trial Court, as otherwise contended by Ld. Counsel for the appellant, cannot, in the considered opinion of this Court, be read against the prosecution in light of the decision of the Hon'ble Supreme Court 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 C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page28 of 34 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.01.31 16:54:52 +0530 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)
25. Ergo, in light of the above, when the testimonies of PW-3, PW-5, PW-6, PW-7 and PW-10 are scrupulously analyzed, it is reiterated that the identity of the appellant as the driver of the offending vehicle on the date and time of incident in question stand duly proved. Further, from the testimonies of PW-3, PW-5 and PW-6, in particular, it is noted that the appellant, while driving the offending vehicle in rash and negligent manner as well as in high speed, emerging from the opposite end of the road, jumped the divider of the road and hit the bus in question in the front diver side seat, in which process, injury was sustained by the victims as well as death of Ramesh Kumar, resulted. In fact, PW-3/Sh. Vijay Kumar in his cross examination specifically asserted that the offending vehicle's speed at the relevant point in time was around 90-95 Kmph, which is high speed for a commercial vehicle and that too on a rainy day, with which observation of the Ld. Trial Court, this Court is in complete concurrence with.
26. Here, it is further apposite to note that, though, this Court is conscious of the settled law8 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 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 8 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.
C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page29 of 34
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.01.31
16:54:55 +0530
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 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 C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page30 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.01.31 16:54:59 +0530 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)
27. Remarkably, as aforenoted, in the instant case, PW-3, PW-5, PW-6 and PW-10 did not merely depose regarding the offending vehicle being driven at a high speed, in rash and negligent manner, rather, all the said witnesses consistently affirmed that while driving so, the offending vehicle jumped over the divider of the road and hit the driver side of the bus in question, leading to injury on the victims as well as death of the deceased. Needless to reiterated, coupled by the fact that the incident is stated to have occurred when it was raining heavily, besides PW-3 asserted that the speed of the offending vehicle was around 90-95 Kmph bespeaks of gross and utter rashness and negligence on the part of the appellant. Needless to mention that the testimonies of PW-3, PW-5, PW-6, PW-7 and PW-10 have not only been consistently and conjointly point out towards the manner of commission of offence, identity of the appellant as the driver of the offending vehicle on the date and time of incident, factum of appellant's driving the offending vehicle in high speed despite rain and to an extent of jumping over the divider of the road and colliding/hitting the bus on the driver side, factum of victims' sustaining injury and death of deceased, Ramesh Kumar and the appellant being accompanied to Hospital with the victims, besides the said witnesses have withstood the rigors of lengthy cross examination, without anything material forthcoming from the C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page31 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.01.31 16:55:03 +0530 same. Ergo, under such circumstances, this Court is in concurrence with the finding of the Ld. Trial Court that the ingredients of offences under Section 279/337/304A IPC duly stand attracted and proved beyond reasonable doubt against the appellant. Needless to reiterate, the appellant inter alia duly admitted the MLCs of the victims as well as the post-mortem report of the deceased in terms of the provisions under Section 294 Cr.P.C. on 05.11.2018. Correspondingly, the MLCs of the victims record various injuries on the person/body of the victims, besides the post-mortem report of the deceased Ramesh Kumar (Ex. A-3) inter alia records his cause of death as cranio-cerebral injuries with, "all injuries are ante-mortem in nature, caused by blunt force impact & are possible in road side accident, as alleged...".
28. Conclusively, in view of the above discussion, in particular, in light of the unambiguous testimonies of PW-3, PW-5, PW-6, PW-7 and PW-10, the ingredients of offence under Sections 279/337/304A IPC stand proved against the appellant herein. Needless to reiterate, the appellant was identified and deposed as the perpetrator of the offence by PW-3, PW-5 and PW-6 in their respective depositions, besides PW-5 and PW-6 denied the suggestion that the appellant was not driving the offending vehicle or that they could not see the appellant as the said driver due to rain. Needless to further reiterate that PW-7 further affirmed that the offending vehicle was being driven by the appellant in his reply to notice under Section 133 MV Act (Ex. PW7/B) as well as PW-7's deposition before this Court, which went unrebutted despite appellant being afforded an opportunity to cross examine the said witness/PW-7. Correspondingly, as aforenoted, the rashness and negligence in the conduct of the C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page32 of 34 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.01.31 16:55:07 +0530 appellant on the date and time of incident is manifest from the manner of accident, i.e., offending vehicle being driven at speed as high as 90-95 Kmph on the date of incident, as deposed by PW-3 and to extent that the offending vehicle jumped the divider and hit the driver side of bus in question. Needless to mention despite being commercial vehicle, the offending vehicle was being driven in such a manner and the gravity of impact was such as it caused injuries to several victims and demise of one Ramesh Kumar, helper in the offending vehicle. Further, as aforenoted, the appellant has been unable to prove his defence by means of any cogent evidence of even under the cross examination of prosecution witnesses. 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 report. 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 279/337/304A 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.
29. Accordingly, in light of the foregoing explication/ discussion, the present appeal deserves to be dismissed and is hereby dismissed. Accordingly, the judgment dated 22.05.2019, passed by Ld. MM-06, Central, Tis Hazari Courts, Delhi in case bearing, "State v. Bal Kumar, CIS No. 294160/2016 ", arising out C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page33 of 34 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.01.31 16:55:11 +0530 of FIR No. 136/2005, P.S. Civil Lines, convicting the appellant for the offences punishable under Sections 279/337/304A IPC is hereby upheld. Let the appellant, namely, Bal Kumar be heard on sentence.
30. In the meanwhile, issue notice to SHO, PS Civil Lines 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, Bal Kumar. 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 ABHISHEK GOYAL
GOYAL Date: 2025.01.31
16:55:16 +0530
Announced in the open Court (Abhishek Goyal)
on 31.01.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi C.A. No. 436/2019 Bal Kumar v. State (NCT of Delhi) Page34 of 34