Delhi District Court
State vs . Ajay Kumar on 31 July, 2020
1
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 279/12
U/s 279/337/304A IPC
PS: Jahangir Puri
State vs. Ajay Kumar
Date of Institution of case: 15.01.2013
Date of Judgment reserved:28.07.2020
Date on which Judgment pronounced: 31.07.2020
JUDGMENT
CIS Number : 5283804/16 Date of Commission : 31.10.2012 of offence Name of the : Nagender Prasad S/o Sh. Parma Prasad complainant Name of the accused : Ajay Kumar S/o Sh. Sukhbir Singh Offence complained : 279/337/304A IPC of Plea of accused : Not guilty Date of order : 31.07.2020 Final Order : Convicted FIR No. 279/12 State Vs. Ajay Kumar 2 BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is that, on 31.10.2012, at about 9:30 am, at Mukandpur Red light, near petrol pump, outer ring road, Jahangir Puri, Delhi within the jurisdiction of Police Station Jahangir Puri, accused was found driving lancer car No. DL 3CS 2377 in a manner so rash and negligent, so as to endanger human life and personal safety of others and while driving the above said vehicle in above said manner, accused hit the same against a motorcycle No. DL ILM 1531, which was being driven by the complainant Sh. Nagender Prasad. The mother of the complainant Smt Shanti Devi was a pillion rider, due to which the complainant sustained simple injuries and she succumbed to her injuries & thereby accused caused her death (not amounting to culpable homicide). According to prosecution, accused committed offences punishable under Section 279/337/304A of The Indian Penal Code, 1860. Thereafter, upon investigation, statements of witnesses were recorded. Thereafter, an FIR was registered against the accused.
Investigation
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [hereinafter to be referred as Cr.PC. for brevity]. The accused was arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C., was FIR No. 279/12 State Vs. Ajay Kumar 3 prepared against the above named accused and challan was presented in the Court.
3. Copies of challan and relevant documents were supplied to the accused free of costs as envisaged under Section 207 of Cr.P.C.
Charge
4. A prima facie case under Sections 279/337/304A IPC, was found to be made out against the accused. Notice was framed upon the accused accordingly. The accused pleaded not guilty and claimed trial.
Evidence
5. In order to prove its case, prosecution examined as many as ten witnesses.
6 PW1 is HC Praveen, No. 487/NW, PS Mahendera Park. He stated that on 31.10.2012, he was posted at PS Jahangir Puri as duty officer from 08:00 am to 04:00 pm. On that day, at about 01:45 am, he received a rukka sent by ASI Tahir Hussain through Ct. Ajay. On the basis of said rukka, he registered the present case FIR i.e. Ex.PW1/A. He also made endorsement on the rukka as Ex.PWI/B. After registration of FIR, he handed over the copy of FIR and original rukka to Ct. Ct. Ajay.
FIR No. 279/12State Vs. Ajay Kumar 4 He further stated, that on 01.11.2012, he was on duty from 08:00 am to 04:00 pm as DO and at about 9:22 am, he received an information from Trauma Centre regarding expiry of injured Shanti Devi and in this regard he made an entry in roznamcha against DD No. I1A vide Ex.PWI/C. The copy of said DD was handed over to ASI Tahir Hussain.
This witness was not cross examined by Ld. Defence Counsel.
7. PW2 is W/Ct. Sheela Devi, No. 622/NW, PS Jahangir Puri. She stated that on 31.10.2012, she was posted at PS Jahangir Puri as DD writer. On that day, she recorded DD no. 29B which is Ex.PW2/A, bearing her signature at point A.
8. PW3 is Dr. R.S. Mishra CMO BJRM hospital. He has been deputed by MS BJRM hospital to appear on behalf of Dr. Sandeep, Dr. Gagan and Dr. Neha, who have left the hospital and their whereabouts are not known. He has seen the MLC Ex.PW3/A and Ex.PW3/B, which has been prepared by Dr. Sandeep and Dr. Gagan respectively, bearing their signatures at point A. According to MLC Ex. PW3/A injured Nagender Prashad suffered simple injuries and opinion regarding the nature of injury was given by Dr. Neha, from point X to XI, bearing her signature at point B. According to MLC Ex. PW3/B, injured Shanti Devi was brought to the casuality who was examined by Dr. Gagan and after preliminary examination she was referred to surgery FIR No. 279/12 State Vs. Ajay Kumar 5 department, where she was medically examined by Dr. Prahlad who have made endorsement from point Y to YI on MLC Ex. PW3/B. This witness was not cross examined by Ld. Defence Counsel.
9. PW4 is Sh. Nagender Prasad, S/o Sh. Parma Prasad R/o H.No. DL./7, Gali No.7, DBlock, Swaroop Vihar, Delhi. He deposed, that it was the incident of 31.10.2012. In the morning, he alongwith his mother Shanti Devi were going to Nirkari Mela from his house on a his splendor motorcycle bearing No. 1531. At about 9.30 AM, they reached at Mukund Pur Chowk red light and he had to take a right turn from there and suddenly, one Lancer car came at very high speed and took a sudden right turn negligently, due to this front wheel of his motorcycle was touched with the body of that lancer car and his motorcycle fell down. They fell down and his mother sustained injury on the back side of her head, due to the falling on road and he sustained injury on his right hand. He further stated that, the lancer driver stopped his car and come to them and took him and his mother to the BJRM hospital. However, his mother was referred to the Shrushruti hospital for further medical treatment. His mother under went an operation of her brain, but on the next day at 09.30 AM she passed away. He further deposed, that the traffic police was already present at the spot at the time of incident and thereafter police official reached BJRM hospital. His statement was recorded by the police officials at BJRM hospital, in the presence of the accused and the statement is Ex. PW4/A, FIR No. 279/12 State Vs. Ajay Kumar 6 bearing his signature at point A. This witness was not cross examined by Ld. Defence Counsel.
10. PW5 is ASI Tahir Hussain No.1280D, PS Swaroop Nagar, Delhi. He deposed, that on 31.10.2012, he was posted as ASI at PS Jahangir Puri and he was on emergency duty from 08:00 AM to 08:00 PM. On that day, at about 10:10 AM on receipt of DD No.29B regarding accident he alongwith Ct. Ajay Kumar went to spot i.e. Mukundpur, Red Light, Delhi. At the spot, one motorcycle bearing No.1531 was found in accidental condition. He came to know that the injured had been taken to hospital in the offending car. He left Ct. Ajay Kumar at the spot and he went to BJRM Hospital. He obtained MLC of injured persons namely Shanti Devi and Nagender. Nagender was declared fit for statement by the doctor. He recorded his statement, which is already exhibited as Ex.PW4/A, bearing his signature at point B. Then, he came back to spot with Nagender and the accused. The offending car was driven to spot which was a LANCER. He made endorsement which is Ex.PW5/A and sent Ct. Ajay to PS for registration of FIR. Then, he prepared site plan which is Ex.PW5/B at instance of Nagender, bearing his signature at point A. Offending car and motorcycle were taken into possession vide memo Ex.PW 5/C and Ex.PW5/D, bearing his signature at point A. Then, he seized D/L of accused and RC of offending car vide memo Ex.PW5/E and Ex.PW5/F respectively. He also seized the insurance of the offending vehicle. Thereafter, FIR No. 279/12 State Vs. Ajay Kumar 7 he interrogated the accused and arrested & personally searched him vide memo Ex.PW5/G and Ex.PW5/H respectively.
This witness was not cross examined by Ld. Defence Counsel despite opportunity.
11. PW6 is Retired ASI/ Tech. Devender Kumar S/o Shri Umrao Singh R/o 1623, Jain Nagar, Kanjhawala Road, Delhi. He stated that on 03.11.2012, on written requests of IO/ ASI Vishnu Singh Ex.Pw6/A and Ex.PW6/B, he mechanically inspected a Lancer Car, bearing registration No.DL3CS2377 and a Motorcycle bearing No.DL.1SM1531 & gave his detailed report which is Ex.PW6/C and Ex.Pw6/D, bearing his signature at point A respectively. During inspection, he found that front bumper and vehicle's body on the left side portion got scratched and dented, left side head light glass was broken and front left side indicator light got damaged and dislocated. During inspection of motorcycle, left side body was scratched, head light wiser was scratched and broken from left side.
This witness was not cross examined by Ld. Defence Counsel.
12. PW7 is Dr. V.K.Jha, CMO, BJRM Hospital, Jahangir Puri, Delhi. He deposed, that he appeared on behalf of Dr. Sudesh, who left the hospital and his present whereabouts are not known, but he identified his writing and signature as he had worked with him. He had gone through the postmortem FIR No. 279/12 State Vs. Ajay Kumar 8 report is Ex.PW7/A, bearing signature of Dr. Sudesh at point A. According to postmortem report, cause of death was comma as a result of head injury due to blunt force impact possible in a road side accident. All the injuries were antemortem in nature.
This witness was not cross examined by Ld. Defence Counsel.
13. PW8 is SI Vishnu No. 1912/D, MACT Cell Northwest District. He stated that on 03112012, he was posted as ASI in MACT Cell Sub division Jahangirpuri. On that day, investigation of the present case was marked to him. He got mechanical inspection of offending car bearing No. DL3CS2377 and motorcycle bearing No. DL1SM1531 vide letter written to mechanical inspector already exhibited as Ex. PW6/A and Ex. PW6/B, bearing his signatures at point B. Mechanical Inspector gave his detailed report which are already exhibited as Ex. PW6/C and Ex. PW6/D. Offending car was lancer. He obtained opinion of Doctor on MLC of injured Nagender Prasad which was opined as simple. He obtained PM report of deceased Shanti Devi and treatment papers. Both the vehicles were released on Superdari. He recorded statement of witnesses and then concluded the investigation. He filed DAR and chargesheet in the court.
This witness was not cross examined by Ld. Defence Counsel.
FIR No. 279/1214. PW9 is Ct. Ajay, No. 618 PTC, Jharoda Kalan, Delhi. He stated that on 31.10.2012, he was posted as Ct. at PS Jahangirpuri. On that day. he was on emergency duty from 8:00 AM to 8:00 PM. On that day. on receipt of copy of DD NO.29A, he along with ASI Tahir Hussain went to spot i.e. Mukundpur Red Light. At the spot, he saw one motorcycle. He came to know that injured persons were shifted to hospital. Then IO left him at the spot and went to the hospital. After about 11/2 hour, IO came back at the spot along with one person. IO prepared Tehrir and got the FIR registered through him. Thereafter, IO inspected the spot and prepared the site plan. Then IO seized motorcycle and offending vehicle vide memo already exhibited as Ex. PW 5/C & Ex. PW 5/D. Thereafter, driver of the car was arrested and personally searched vide memo already exhibited as Ex. PW5/G and Ex. PW 5/H, bearing his signature at point B. He could not identified the driver of the car.
This witness was cross examined by Ld. APP for the State after seeking permission from the court. In his crossexamination conducted by Ld. APP, he stated that he is unable to identify the accused due to lapse of 6 years.
This witness was not cross examined by Ld. Defence Counsel.
15. PW10 is HC Rajesh, No. 373/NW, PS Jahangir Puri. He is summoned witness. He brought register no. 19 dated from 01.01.2012 to 31.012.2012. As per record, on 31.10.2012, IO ASI Tahir Hussain had deposited case property i.e. one car bearing no. DL3CS2377 and one FIR No. 279/12 State Vs. Ajay Kumar 10 motorcycle bearing no. DL1LM 1531 in the malkhana. The particulars of deposition of case property are mentioned at sr. no. 3482 in the register no. 19. Copy of the entry is Ex.PW10/A. On 08.01.2013, the above mentioned motorcycle was released on superdari by the order of the court. The particulars are mentioned at point B on Ex.PW1O/A. On 14.12.2012, the above mentioned car was released on superdari by the order of the court. The particulars are mentioned at point C on Ex.PW10/A. He was not cross examined by the Ld. Counsel for the accused.
16. After examination of the aforesaid prosecution witnesses, PE was closed vide order dated 22.04.2019 and subsequently the statement of the accused was recorded u/s 313 cr.p.c read with section 281 Cr.P.C during which he stated that he has been falsely implicated in the present case. The accused opted to lead defence evidence.
17. DW1 is Ram Mehar, S/o Sh. Ram Phal. He stated that on 31.10.2012, at about 09:30 am, his brother in law namely Ajay Kumar i.e. accused was going to drop him to his office at Wazirpur, Delhi as he is handicapped. When they reached at Mukundpur Red Light, he heard loud noise from the back side. After one second he again heard some loud sound from their car and found that one Scorpio car came from behind in rash and negligent manner. Firstly, it hit the motorcycle from left side and subsequently hit the Lancer Car which FIR No. 279/12 State Vs. Ajay Kumar 11 belonged to his brotherinlaw. The car driver of Scorpio immediately ran away from the spot. His brotherinlaw came down from the car and told him, that the complainant and his mother were lying on road due to the accident caused by the Mahindra Scorpio Car. Public persons had gathered at the spot due to the accident caused by the mahindra Scorpio car. The complainant and his mother were taken to BJRM hospital on humanitarian ground in their car with assistance of public persons. After some time, police official namely Tahir Husain reached at BJRM Hospital. He was sitting in the car outside the said hospital as he is handicapped. Police official came to him with the accused and told that the accident was caused by Mahindra Scorpio car. No accident took place from the lancer car of his brotherinlaw. IO Tahir Hussain did not record his statement as he is handicapped and did not want to indulge him in the present case.
This witness was cross examined by Ld. APP for the State. He stated that he can not tell the registration number of mahindra scorpio car. He stated that he did not see the scorpio car when the scorpio car hit against the motorcycle.
18. Thereafter, DE stands was closed vide order dated 16.09.2019.
19. Thereafter, the matter was listed for the final argument. I have heard the arguments comprehensively from both the sides and have given my thoughtful FIR No. 279/12 State Vs. Ajay Kumar 12 consideration to the entire record.
Arguments
20. On the basis of the above oral and documentary evidence on record Ld. APP requested for conviction of the accused and severe punishment as per law.
21. On the other hand, learned defence counsel contended that the prosecution has miserably failed to establish the guilt of the accused beyond all reasonable shadow of doubt as prosecution has as such failed to establish the rashness and negligence of the accused in the present case. Accordingly, he prayed for the acquittal of the accused. Thus, on the basis of the above facts and averments, the following points arise before the court for determinations.
Point for determination
22. In the present case, accused was chargesheeted under Sections 279, 337 and 304A of IPC. Hence, the points for determination are following :
1. Whether the accused was driving the offending vehicle i.e. Lancer Car bearing no. DL3CS2377 at a public place in a manner so rash or negligent so as to endanger human life or personal safety of others.
2. Whether the accused by so driving his vehicle in a rash and negligent manner caused death of one Smt. Shanti Devi (not amounting to culpable homicide) and injuries to the complainant Nagender Prasad.FIR No. 279/12
State Vs. Ajay Kumar 13 Answers to point for determination:
I) Yes II) Yes Reasons for determination
23. The onus lies on the prosecution to prove these allegations against the accused.
24. In the present case, charges brought against the accused are under Sections 279/337 and 304A of IPC for driving the vehicle in question in a rash and negligent manner and thereby causing death of one Shanti Devi and injuries to the complainant Nagender Prasad. The prosecution in order to bring home the guilt of the accused examined ten witnesses in its evidence. In order to prove the guilt of the accused, it was incumbent upon the prosecution to prove:
Firstly, that accident in question took place; Secondly, accused was driving the vehicle in question at that relevant point of time and Thirdly, accused was rash and negligent in driving the vehicle in question. So far as, the death of deceased is concerned, the same is undisputed in the present case.FIR No. 279/12
State Vs. Ajay Kumar 14
25. The next question to be determined by the court is, whether accused was driving the offending vehicle at the time of accident or not. This court deems it fit to decide this aspect along with the third aspect i.e., if the accused was driving the vehicle in question, then whether he was rash and negligent at the relevant point of time as a result of which the alleged accident was caused.
In order to sustain the conviction of the accused in the present case, it becomes imperative to carefully probe and scrutinize the testimony of the eye witness examined by the prosecution as it is the eye witness only on whose testimony, the edifice of the story of the prosecution rests and hence deep sifting and perlustration of the deposition of the star witness i.e. PW4 (eye witness in the present case) becomes germane for effective adjudication in the present case. PW4 is the only eye witness/injured examined by the prosecution to substantiate the allegations levelled against the accused. PW4 stated, that on 31.10.2012, he alongwith his mother (deceased in the present case) was going to Nikari Mela, when at about 09:30 am, they reached at Mukundpur Chowk,Red Light and had to take right turn from there, then at that movement suddenly one lancer car came at a very high speed and took a sudden turn negligently and due to this the complainant's motorcycle front wheel touched with the body of the lancer car and his motorcycle fell down. He further stated that he and his mother fell on the road and back side of his mother's head sustained injuries due to the falling on the road and he sustained injury on his right hand. He further deposed that the lancer car stopped and took him and his FIR No. 279/12 State Vs. Ajay Kumar 15 mother to the hospital and due to the injuries sustained his mother passed away on the next day at 09:30 am.
26. The next question to be determined by the court is, whether accused was driving the offending vehicle at the time of accident or not. In the present case, the identity of the accused is not in doubt as PW4, being the eye witness/ injured examined by the prosecution clearly identified the accused as the person driving the offending vehicle at the relevant point of time, as he further deposed, that it is the accused who took him and his mother to the hospital. It is concrete and material to state at this stage, that PW4 categorically stated in his deposition before the court that at the time of the accident the accused suddenly came at a very high speed and took a sudden sharp right turn in a negligent manner and due to which the accident in question took place. It would not be out of context to mention that PW4 avers in his deposition before the court that the accused was arrested and personally searched vide Ex.PW5/G and Ex.PW5/H respectively and both these documents bears the signature of the injured i.e. PW4. Therefore, from the above context it can be safely deduced that the accused has been categorically identified by the injured in the present case.
27. Now, since the identity of the accused stands established and is undisputed, the only material question which is left to be determined is: FIR No. 279/12 State Vs. Ajay Kumar 16 Whether the accused was driving the vehicle in a rash and negligent manner at the time when the alleged incident took place.
Before delving into the merits of this material issue, it becomes necessary to examine the testimony of sole eye witness who is also the star witness in the present case i.e. PW 4. To sustain the conviction of the accused, it becomes imperative to carefully scrutinize the testimony of this sole eye witness as he is not only the eye witness to the present case, but also an injured who sustained the injuries as a result of the accident in question. At the cost of brevity, it is being stated that the complainant unambigously stated that the accused took a sudden turn at a very high speed and as a result of the same he sustained injuries and his mother fell down and sustained injuries on her head. The relevant extract of his crossexamination to this effect are "suddenly one lancer car came at a very high speed and took a sudden right turn negligently and due to which front wheel of my motorcycle was touched with the body of lancer car and our motorcycle fell down. We fell down and back side of my mother's head sustained injuries due to the falling on the road and I sustained injuries on my right hand"
It is further stated by the complainant in his examination in chief that the registration number of the offending car was 2377 and he further identified the photographs of the offending car i.e. Ex.A1 to A4.FIR No. 279/12
State Vs. Ajay Kumar 17
28. PW4 being the injured and eye witness specifically deposed, that the offending vehicle i.e. Lancer Car was being driven at a high speed and the accused was totally negligent in taking the turn and no caution or signal of any kind was given to the other vehicles plying on the road. At the same time, it becomes crucial to corelate the testimony of the sole eye witness with the site plan i.e. Ex.PW5/B which also shows and corroborates the story of the prosecution that the offending vehicle came and took a sharp turn as a result of which the said collision took place. The site plan as per the injured was prepared at his instance and the same bears his signature and it is further noteworthy to mention that the accused neither challenged nor questioned the contents of the site plan.
At this stage, it also becomes necessary to look into the mechanical inspection report i.e. Ex.PW6/C and Ex.PW6/D. At the outset, it is pertinent to mention that PW6 i.e. ASI/ Tech. Devender Kumar has duly proved the mechanical inspection of the two vehicle i.e. motorcycle and lancer car. PW6 during his deposition in the court categorically stated that the mechanical inspection of the above two vehicles was conducted by him and the same is E.xPW6/C and Ex.PW6/B, bearing his signatures at point A. He further deposed that during inspection he found front bumper and side body portion of the lancer car scratched and dented, headlight glass broken and front side indicator light damaged and dislocated. He further stated, that the motorcycle left side body was scratched and headlight was broken from left side. Perusal FIR No. 279/12 State Vs. Ajay Kumar 18 of the mechanical inspection report of the motorcycle clearly shows fresh damages and further fresh damages were also seen on the offending vehicle At this stage, if we retrogress to the deposition of PW4 made in the court, then it can be safely culled out that the mechanical inspection report and its result are in sync with the deposition made by the injured as he stated that due to the sharp turn being taken by the offending vehicle, the body of the car was touched with his motorcycle.
29. It further becomes apposite to state that PW4 is the injured in the present case and the postmortem report of the deceased is duly proved by PW7 i.e. Dr. V. K. Jha, who deposed that he had gone through the postmortem report E.xPW7/A, bearing the signature of Dr. Sudesh at point A. He further deposed that according to the postmortem report cause of the death was coma as a result of head injuries received due to blunt force impact possible in a road accident case. He further identified the handwriting and signature of Dr. Sudesh as he had seen him signing and writing during the course of his duty.
30. It is further paramount to mention that the evidence of stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is considered to be very reliable and is unlikely that he will spare the actual assailant. His testimony has its own efficacy as he has sustained injuries at the time and place of occurrence and FIR No. 279/12 State Vs. Ajay Kumar 19 this lends support to his testimony that he was very much present at the time of incident.
31. It is a settled law that testimony of injured witness is considered to be very reliable and is accorded a special status in law. In the case of Bhajan Singh Vs. State of Haryana (2011) 7 SCC 421, where it was held as follows: " The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailants in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lands support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built in guarantee of his presence at the scene of crime and is unlikely to spare his actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. (vide Jarnail Singh v. State of Punjab (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra (2010) 6 SCC 673;
Abdul Sayed v. State of Madhya Pradesh (2010) 10 SCC
259)".
32. In the case of State of U.P. v. Naresh & Ors. (2011) 4 SCC 324, it was held that evidence of an injured witness cannot be doubted merely because FIR No. 279/12 State Vs. Ajay Kumar 20 there is a background of previous dispute enmity between the parties because this could well be the motive of giving assault by the accused on injured witnesses. The evidence of an injured witness has to be appreciated keeping in view that ordinarily a person, who has been assaulted by someone would not allow him to go Scot free and falsely implicate persons other than those who actually assaulted him. The evidence of an injured witness stand on different pedestal as compared to any other witness cited by the prosecution as eye witness, who claims to have seen the incident. Where an injured witness clearly names the person and the assault made on him by those persons which is broadly corroborated with what has been found in the medical report, even though there may not be any mathematical precision with regard to the manner of assault, the evidence of an injured eye witness cannot be lightly thrown aside only on certain minor contradictions and omissions. It cannot be a case of some exaggeration or it could even be some discrepancy in recollecting the whole incident with exactitude and certainty but on certain minor discrepancy disbelieving altogether the testimony of injured eye witness, would be against settled principle of appreciation of evidence.
33. In the case of Bhajan Singh @ Harbhajan Singh v. State of Haryana ( 04.07.2011), it was held that evidence of an injured witness has to be relied upon, unless the injuries are found to be superfluous or self inflicted just to create evidence against the other party. It was further held that if, the common FIR No. 279/12 State Vs. Ajay Kumar 21 object stands proved, trivial discrepancies become immaterial and insignificant. The testimony of an injured witness comes with a built in guarantee of his presence at the scene of crime and is unlikely to spare his actual assailants in order to falsely implicate someone (Kailash & Ors. v. State of Maharashtra (2011) 1 SCC 793; Durbal v. State of U.P. (2011) 2 SCC 676).
34. Therefore, in the light of law reproduced as above and applying the same to the facts of the above case it can be categorically stated that the testimony of the injured witness in the present case is absolutely clear and cogent and free from any kind of discrepancies, embellishment and concoctions. Thus, no ground is produced for brushing aside the testimony of the injured witness. There are no grounds for rejecting the evidence of PW4 and as discussed above unless and until there are no major contradictions and discrepancies in the testimony of injured witness, there arises no reason for either doubting his presence at the spot of incident or for questioning the injuries suffered by him. Moreover, in the case in hand the testimony of PW4 is not only firm, cogent and convincing but is also in consonance with the medical evidence on record.
35. At this stage, it further become relevant that in the case of State of Karnataka v. Suvarnamma and Anothers (14.10.2014), it was observed that: " Overmuch importance cannot be attached FIR No. 279/12 State Vs. Ajay Kumar 22 to minor discrepancies. The reasons are obvious :
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if, a video tape is replayed on the mental screen.
In para NO. 10 of the report, this court observed that: ( SCC pp 51415).
"(10) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once, that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks, infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of evidence is shaken as to rander is unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to from the opinion about the general tenor of evidence given by the witness, the appellate court which had not disbenefit will have to attach due weightage to the appreciation of evidence by the Trial Court and unless there are reasons weighty FIR No. 279/12 State Vs. Ajay Kumar 23 and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals".
36. Thus, in light of the law reproduced as above it can be stated that the witness has categorically identified the accused as well as the vehicle by stating the registration number of the offending vehicle in his deposition before the court and the witness was further identified the photographs of the offending vehicle i.e. Ex.A1 and A4, shown to him during his examination. Merely because the public witnesses were not examined, does not result in eschewing the testimony of the injured witness. It is further settled proposition of law, that in appreciating the evidence, the approach of the court must be integrated and not truncated or isolated. In other words, the impact of the evidence in totality on the case of prosecution or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching on a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and animus of witnesses.
FIR No. 279/1237. In Ugar Ahir v. State of Bihar AIR 1965 SC 272 a three judge bench held that: "7. the maxim falsus in uno, falsu in omnibus (false in one thing, false in everything), is neither sound rule of law nor a rule of practice. Hardly, one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment, it is ,therefore, the duty of the court to scrutinize the evidence carefully and , in terms of the felicitous methapor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.
38. In addition to the above, it also becomes necessary to state that PW4 i.e. eye witness was cross examined at length by the Ld. Defence Counsel but nothing could be extracted in the crossexamination of PW4 to puncture the case of the prosecution and supplant the case of the defence, though, at this stage, court deems it fit to state that there are minor discrepancies in the testimony of PW4 but as discussed above that human memory perse suffers from the elements of little improvisation and fading out and if the testimony of the witnesses otherwise complete and inspire the confidence of the court, then, it can not be negated merely because there are traces of minor discrepancies.
39. In addition to the above, the other witnesses examined by the prosecution are merely formal witnesses and their testimony is also on the FIR No. 279/12 State Vs. Ajay Kumar 25 same lines and corroborative with the testimony of other prosecution witnesses.
40. At this stage, it also becomes relevant to state that mere inability of the witness to tell the exact speed of the vehicles involved in the alleged accident shall not be a ground to disbelieve the prosecution story. This witness specifically deposed that the offending vehicle was driven at a very high speed and in a rash and negligent manner. The version of PW4 regarding the directions of the vehicles involved in the accident duly stands fortified and co related with the site plan. During the entire crossexamination of the eye witness PW4, there is not even a single suggestion to the witness that the accused was not driving the aforesaid truck in rash and negligent manner.
41. It is a settled proposition of law, that testimony of a sole eye witness is sufficient to sustain the conviction of the accused and minor contradictions and embellishments in the testimony of a public witness cannot be allowed to act as a defence of the accused, in cases where minor embellishments do not go to the very root of the case. Here, I would like to place reliance upon Prithipal Singh and Others Vs. State of Punjab and Another (2012) 1 SCC 10, where it was held as under: "49. This court has consistently held that as a general rule the court can/ may FIR No. 279/12 State Vs. Ajay Kumar 26 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 Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time hounoured principle is that evidence has to be weighted and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."
The same principle was reiterated in Sudip Kumar Sen Alias Biltu V. State of West Bengal and others (2016) 3 SCC 26.
FIR No. 279/1242. I would further like to place reliance upon Bharwada Bhoginbhai Hirjibhai V. State of Gujarat (1983) 3 SCC 217, where it was observed that undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the root of the matter and shake the basic version of the prosecution witnesses. A witness cannot be expected to possess a photographic memory and to recall the details of an incident verbatim.
Ordinarily, it so happens that a witness is overtaken by events. A witness could not have anticipated the occurrence which very often has an element of surprise. The mental faculties cannot, therefore, be expected to be attuned to absorb all the details. Thus, minor discrepancies were bound to occur in the statement of witnesses.
The same principle was reiterated in State of U.P. V. M.K. Anthony (1985) 1 SCC 505.
43. Apart from the above, the police officials examined by the prosecution have duly testified about the investigation conducted by them and no significant discrepancy could be found in their evidence. Ld. Counsel for the accused argued and led evidence to the effect that the accident was not caused FIR No. 279/12 State Vs. Ajay Kumar 28 with the vehicle of the accused but on the contrary the same was caused by one Mahindra Scorpio and it is the said car that at first hit the motorcycle of the complainant from the left side and then the driver of the said car ran away from the spot.
At this stage, it is interesting to state that on one hand the ld. Counsel for the accused is giving suggestion to the complainant during his cross examination to the effect that "it is wrong to suggest that the accused came out of the car first and he found me and my mother lying on the road due to the accident caused by the Mahindra Scorpio. It is further wrong to suggest hat accused took me and my mother to BJRM hospital on humanitarian grounds", and on the other hand the accused during his statement recorded u/s 313 cr.p.c state that he took the complainant and his mother to BJRM hospital on humanitarian grounds, therefore, the accused is trying to blow hot and cold at the same time and is countering his own defence during the crossexamination conducted on behalf of the accused", and on he other hand he is arguing that accused did not cause the accident.
44. It is further pertinent to mention, that DW1 i.e. Ram Mehar was examined as a defence witness but the said witness could not withstand the litmus test of the crossexamination as he neither remembered the registration number of the alleged scorpio car, which as per the alleged defence version caused the accident and nor did he actually see the scorpio car hitting against FIR No. 279/12 State Vs. Ajay Kumar 29 the motorcycle as DW1 categorically stated in his crossexamination that " it is correct that I did not see the scorpio car when the scorpio car hit against the motorcycle". Thus, from the perusal of the testimony of DW1, it can be deduced that he is the planted witness and his version does not inspire the confidence of the court.
45. Hence, in view of the cogent, specific as well as convincing testimony of the eyewitness and the other prosecution witnesses as well as the documents on records i.e the site plan, the arrest and the search memos of the accused, the mechanical inspection report of the vehicle as well as their photographs, there appears to be no reason to disbelieve the truthfulness of the version of prosecution witnesses especially in the absence of any defence evidence led by the accused, therefore, accused Ajay Kumar is hereby convicted for the offences U/s 279/337/304A IPC.
Digitally
signed by
RICHA
RICHA SHARMA
SHARMA Date:
Announced in open court today 2020.07.31
15:47:28
on 31st Day of July 2020 +0530
(Richa Sharma)
Metropolitan Magistrate
North District Court/Delhi
FIR No. 279/12
State Vs. Ajay Kumar