Delhi District Court
State vs Shiv Kumar on 1 August, 2023
IN THE COURT OF SH. APOORV GUPTA, MM02,
CENTRAL DISTRICT, TIS HAZARI COURT, DELHI
STATE VS. SHIV KUMAR
FIR NO. 160 / 2019
POLICE STATION TIMAR PUR
U/S 279/338/304A IPC
U/S 146/196 & 134/187 MV ACT
Date of institution of the case : 26.07.2021
Date of judgment reserved : 14.07.2023
CNR : DLCT020141222021
Date of commission of offence : 16.08.2016
Name of the complainant : Sh. Gajender Singh
Name of accused and address : SHIV KUMAR
S/o Sh. Chhida Ram,
R/o 68/9, Ajeet Vihar,
Kamalpur, Burari, Delhi.
Offence complained of : 279/338/304A IPC & 146/196 MV Act
Plea of the accused : Pleaded not guilty
Date of Judgment : 01.08.2023
Final order : Convicted - 279/338/304A IPC
and 146/196 MV Act.
Acquitted - 134/187 MV Act.
STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 1 / 25
Digitally signed by
APOORV APOORV GUPTA
GUPTA Date: 2023.08.01
16:38:00 +0530
JUDGMENT
CASE OF THE PROSECUTION :
1. The prosecution story in nutshell is that on 16.08.2019 at about 02.20 PM at Timarpur bus stand, near mother dairy, tikona park, accused was driving a bus bearing registration no. DL 1PC 1654 within the jurisdiction of PS, Timarpur, in rash and negligent manner so as to endanger human life and personal safety of others and while driving the aforesaid vehicle in aforesaid manner, struck against a motorcycle bearing registration no. DL 9SAN 5916 due to which he caused death of Anil (driver of motorcycle) not amounting to culpable homicide and caused grievous injury to Gajender (pillion rider). The vehicle was being driven without insurance and accused fled away from the spot after causing the accident thereby committed an offence punishable under Section 279/338/304A IPC, 146/196 MV Act and 134/187 MV Act.
COURT PROCEEDINGS :
2. Investigation was completed and police report u/s 173 Cr.P.C was filed under sections 279/338/304A IPC and 146/196 MV Act. Cognizance was taken and accused was summoned. Provisions of Section 207 Cr.P.C. were complied with after appearance of the accused.
NOTICE :
3. After hearing arguments on point of notice, notice for the offence under Section 279/338/304A IPC, 146/196 MV Act and 134/187 MV Act, was framed against the accused to which he pleaded not guilty and claimed trial.
STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 2 / 25 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2023.08.01 16:38:13 +0530 EVIDENCE OF THE PROSECUTION:
4. In order to substantiate its case, prosecution has examined nine witnesses.
5. PW1 Gajender Singh is the complainant. He deposed that on 16.08.2019, he along with Anil went to Kashmere Gate Spare Parts Market on his motorcycle bearing no. DL9SAN5916 and after purchasing goods, they left from the market for Truck Parking, Timar Pur, Delhi. Anil was driving the motorcycle and he was a pillionrider. At about 2:20 pm when they reached at Mother Dairy, Timar Pur, one School Bus bearing no. DL1PC1654 (wrongly mentioned as DL 1LC1654) was coming from backside in rash and negligent manner and hit against the motorcycle. They fell down on the road. Anil Kumar came under the aforesaid bus and he fell on the side of the road. The bus got stopped there. He removed Anil Kumar from under the aforesaid bus and took him to Trauma Centre in a private vehicle. He also got admitted there. He made 100 number call. His statement Ex.PW1/A was recorded.
6. PW2 ASI Gautam Singh has deposed that on 24.08.2019 at about 02:05 pm he received the information from Trauma Center Civil Lines Hospital that the injured had died in the hospital. He reduced the information vide DD no. 16B Ex.PW2/A.
7. PW3 ASI Anil Kumar was working as duty officer on 16.08.19. After receiving rukka at about 6 pm he registered FIR Ex.PW3/A and also made STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 3 / 25 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2023.08.01 16:38:20 +0530 endorsement on rukka Ex. PW3/B. A copy of FIR and original rukka was handed over to HC Ravinder for handing over the same to ASI Jitender.
8. PW4 ASI/Tech Gurdeep Singh has deposed that on 02.12.2019 he mechanically inspected motorcycle bearing registration number DL9SAN5916 and prepared report Ex. PW4/A. He also mechanically inspected bus bearing registration no. DL1PC6154 and prepared report Ex. PW4/B.
9. PW5 HC Ravinder Kumar joined the investigation with investigating officer ASI Jitender. He took rukka to police station for the purpose of getting the FIR registered.
10. PW6 HC Ashwani produced register no.19. ASI Jitender deposited the case property i.e., motorcycle bearing registration no. DL9SAN5916 vide entry no.
2963 Ex. PW6/A. He also deposited bus bearing registration no. DL1PC1654 vide entry no. 3052 Ex. PW6/B.
11. PW7 W/ASI Pinki has deposed that on 16.08.2019 at about 02:24PM she received a PCR call regarding the accident and injured was taken to the trauma center. The said information was deduced into writing vide DD no. 22A Ex.PW7/A.
12. PW8 ASI Jitender is the initial investigating officer. He stated that on 16.08.2019 after receiving DD no. 22A, he along with HC Ravinder reached at Timar Pur bus stand, where they could not find any accidental vehicle. They got to know that the injured was already removed to the trauma center. HC Ravinder was left at the spot to preserve the same. He went to trauma center. He met injured STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 4 / 25 Digitally signed APOORV by APOORV GUPTA GUPTA Date: 2023.08.01 16:38:26 +0530 persons namely Anil Kumar and Gajender Singh. Anil Kumar was unfit for statement and his statement could not be recorded. He recorded statement of injured namely Gajender Singh Ex. PW1/A. Tehrir Ex. PW8/A was prepared and same was handed over to HC Ravinder for getting the FIR registered. He made all the possible efforts to search for eyewitnesses of the incident as well as the case property but all the efforts went in vain. On 24.08.2019, vide DD no. 16B, he got to know that the injured namely Anil Kumar had collapsed due to the injuries sustained by him. On 25.08.2019, he requested to perform PM of the deceased and prepared inquest paper Ex. PW8/B. After the identification of the dead body and PM, the dead body was handed over to the relatives vide handing over memo Ex. PW8/C. On 05.09.2019, injured Gajinder Singh produced the accidental motorcycle and same was seized by seizure memo Ex. PW1/C. He made inquiry for the offending vehicle i.e., bus bearing registration no. DL1P1654. Notice U/s 133 M.V. Act Ex. PW8/D was served upon the owner of the offending vehicle. Owner of the offending vehicle came at the PS and gave reply of the notice U/s 133 M.V. Act as per which he was driving the offending vehicle. He produced documents pertaining to the vehicle and same were seized vide seizure memo Ex. PW8/E. Driving License of the accused was also seized vide seizure memo Ex. PW8/F. Accused was arrested vide arrest memo Ex. PW1/D. The offending bus was seized vide seizure memo Ex. PW8/G. On 02.12.2019, mechanical inspection of the accidental as well as offending vehicle was conducted.
13. PW9 SI Virpal is the 2nd investigating officer. On 10.12.2019 the present file was marked to him. He went through the file and noticed that there was no insurance on record regarding the offending bus. He added 146/196 M.V. Act and 134/187 M.V. Act in the challan. He verified all the documents pertaining to the STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 5 / 25 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2023.08.01 16:38:32 +0530 offending bus from the concerned authority. After completion of all the formalities he filed the chargesheet.
ADMISSION / DENIAL OF DOCUMENTS :
14. Accused, in his statement under section 294 Cr.P.C did not dispute the genuineness and correctness of MLC No. 10460/19 Ex. AD1, MLC No. 10464/19 Ex. AD2, Death Summary of Anil Ex. AD3, Death certificate of Anil Ex. AD4, Xray report of MLC No. 10464/19 Ex. AD5 and postmortem report no. 1362/19 Ex. AD6. In view of the admissions made, the evidence of the Dr. Reena, Dr. Gaurav Kumar Pandey, Dr. Sandeep Garg, Dr. Abhishek Jayant, Dr. Rakshit and Dr. Devender Kumar was dispensed with.
STATEMENT / DEFENCE OF THE ACCUSED :
15. In his statement under Section 313 Cr.P.C., accused Shiv Kumar has admitted that on the day of incident Anil (since expired) was driving the motorcycle and Gajender was a pillion rider. He further stated that ASI Jitender Singh met him in the trauma centre on the date of incident. He further admitted that Anil was unfit for statement and statement of Gajender was recorded. He further admitted that IO prepared tehrir on the basis of which FIR was registered. He further admitted that he was driving the bus and he produced the same at police station on 31.08.2019. The same was seized. His driving license was also seized. He further admitted that he did not produce the insurance. He alleged false implication in the present case and has stated that the present FIR was registered against him only to get claim/compensation. He chose not to lead evidence in his defence.
STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 6 / 25 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2023.08.01 16:38:38 +0530
16. The respective submissions of Sh. Rohit Lohat, learned Assistant Public Prosecutor for the State and Sh. R.S.Deswal, learned Counsel for the accused have been considered. The record has been thoroughly and carefully perused.
ANALYSIS AND FINDINGS:
17. It is argued by the Ld. APP for the State that State has proved its case beyond reasonable doubt. Accident and death of the deceased was caused due to the rash and negligent act of the accused. On the other hand, it is argued by Ld. Counsel for the accused that despite presence of public witnesses at the spot, no one was joined in the proceedings. Incident took place on 16.08.2019 but all the proceedings took place after lapse of 3 months and as per mechanical inspection report the offending vehicle hit the accidental vehicle from behind but no damages could be seen. The accused is innocent and has been falsely implicated in this case.
18. Firstly, I shall take up the charge under Section 279/338/304A IPC.
19. Section 279 IPC provides that "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".
20. Section 338 IPC provides that "Whoever causes grievous 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 STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 7 / 25 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2023.08.01 16:38:44 +0530 for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both".
21. Section 304A IPC provides that "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".
22. In order to prove the case against the accused, the prosecution was under
the obligation to prove the following essential ingredients of the offence punishable u/s 279/338/304A IPC:
a. Identity of the accused being the driver of the offending vehicle.
b. That the alleged accident is the result of rash and negligent driving of the accused at a public place.
c. The rash and negligent driving of the accused resulted in injuries to some of the passengers and the death of the deceased.
RE: IDENTITY OF THE ACCUSED:
23. Material witness in regard to identity of accused is PW1 Gajender Singh. Accused is identified by the eye witness PW1 Gajender Singh to be the person who was driving the offending vehicle at the time of incident. His testimony in this regard goes unchallenged and unrebutted as even no suggestion was given to this witness that accused was not driving the offending vehicle which caused the accident. Accused was himself the owner of the offending vehicle. On receiving the STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 8 / 25 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2023.08.01 16:38:50 +0530 notice under Section 133 Motor Vehicle Act Ex. PW8/D he gave reply that he himself was driving the driving the bus. Further in his statement recorded u/s 313 Cr.P.C he himself has admitted that he was driving the aforesaid bus. Thus, it stand proved that accused was the driver of the offending vehicle which caused the accident.
RE: ALLEGED ACCIDENT IS THE RESULT OF RASH AND NEGLIGENT DRIVING OF THE ACCUSED AT A PUBLIC PLACE.
24. PW1 Gajender Singh is the injured in the present case, who deposed that on 16.08.2019, he along with Anil went to Kashmere Gate Spare Parts Market on his motorcycle bearing no. DL9SAN5916 and after purchasing goods, they left from the market for Truck Parking, Timar Pur, Delhi. Anil was driving the motorcycle and he was a pillionrider. At about 2:20 pm when they reached at Mother Dairy, Timar Pur, one School Bus bearing no. DL1PC1654 (wrongly mentioned as DL 1LC1654) was coming from backside in rash and negligent manner and hit against the motorcycle. They fell down on the road. Anil Kumar came under the aforesaid bus and he fell on the side of the road. The bus got stopped there. He removed Anil Kumar from under the aforesaid bus and took him to Trauma Centre in a private vehicle.
25. It was held in Niranjan Singh vs. The State (Delhi Administration) 1977 CriLJ 333 held that 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 STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 9 / 25 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2023.08.01 16:38:56 +0530 culpable neglect or failure to exercise that reasonable or proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Thus the main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed of the offending vehicle but deliberate disregard to the obligation of its driver to drive with due care and attention and taking a risk indifference as to the harmful consequences resulting from it. In a case of this nature, the test is whether the prosecution has proved that:
(i) the accused was driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or doing substantial damage to the property;
(ii) in driving the vehicle in that manner the accused did so without having given any thought to the possibility of there being any such risk or, having recognized that there was some risk involved, had nonetheless gone on to take it; and
(iii) the rash or negligent act of the accused was the proximate cause of the death of the deceased.
26. It has come in the statement of PW1 that he removed Anil to trauma centre. This fact find corroboration from MLC of Anil where in the column of "Brought by" name of Gajender Singh has been mentioned. He was also admitted there. He received injuries on his right elbow and left foot. Nature of injures were opined to be grievous in nature. Thus, grievous injury on the person of Gajender Singh due to the accident stands proved.
STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 10 / 25 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2023.08.01 16:39:03 +0530
27. Further, on the request of IO, postmortem examination of the dead body of Anil was conducted by PW Dr. Sandeep Garg, who gave his report Ex.AD6 and opined cause of death as "cerebral damage consequent to injury to head. All injuries are antemortem in nature, recent in duration prior to death and caused by blunt force/surface impact".
28. Accused has pleaded his false implication in this case. However, this plea does not inspire confidence in view of the ample evidence available on record. Moreover, he is not alleging any enmity, illwill or grudge against any of the prosecution witness for which they will falsely implicate him in this case.
29. Thus, it stands proved that accused was driving the vehicle in a rash and negligent manner and death of the deceased is the direct cause of the act of the accused.
30. The submission of the learned defence counsel for the accused that no independent witness has been joined by the prosecution at any point of time is devoid of any merit. Although it is true that, no public witness has been joined, however, this fact by itself cannot be a ground for rejecting the unimpeached testimony of the prosecution witness because PW1 was the eye witness of the incident and was himself injured.
31. The law regarding injured witness is by now well settled. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 11 / 25 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2023.08.01 16:39:13 +0530 comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.
"Convincing evidence is required to discredit an injured witness". (Vide Ramlagan Singh & Ors. v. State of Bihar, AIR 1972 SC 2593; Malkhan Singh & Anr. v. State of Uttar Pradesh, AIR 1975 SC 12; Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC 957; Appabhai & Anr. v. State of Gujarat, AIR 1988 SC 696; Bonkya alias Bharat Shivaji Mane & Ors. v. State of Maharashtra , (1995) 6 SCC 447; Mohar & Anr. v. State of Uttar Pradesh, (2002) 7 SCC 606; Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270; Vishnu & Ors. v. State of Rajasthan, (2009) 10 SCC 477; Annareddy Sambasiva Reddy & Ors. v. State of Andhra Pradesh, AIR 2009 SC 2261; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673); Shivalingappa Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC 235; State of U.P. v. Kishan Chand, (2004) 7 SCC 629; Krishan v. State of Haryana, (2006) 12 SCC 459).
32. Similar view was taken by Hon'ble Apex Court in the latest pronouncement reported as Balu Sudamkhalde and another Vs. The State of Maharashtra Crl. Appeal No. 1910 of 2010 decided on 29.03.2023 where it was observed as under: "26. When the evidence of an injured eyewitness is to be appreciated, the undernoted legal principles enunciated by the Courts are required to be kept in mind.
a) The presence of an injured eyewitness at the time and place of the occurrence cannot be doubted unless there are STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 12 / 25 APOORV Digitally signed by APOORV GUPTA GUPTA 16:39:19 +0530 Date: 2023.08.01 material contradictions in his deposition.
b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
27. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 13 / 25 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2023.08.01 16:39:25 +0530 circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
33. The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
34. In Vadivelu Thevar vs. The State of Madras, 1957 AIR 614 the Hon'ble Supreme Court says :
"11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 14 / 25 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2023.08.01 16:39:30 +0530 should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that "no particular number of witnesses shall, in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134 quoted above. The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted".
Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 15 / 25 Digitally signed APOORV by APOORV GUPTA GUPTA Date: 2023.08.01 16:39:36 +0530 comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 16 / 25 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2023.08.01 16:39:41 +0530 circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
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35. In the present case, the fact that there is an injured eyewitness viz. PW1 who gave clear, consistent and convincing testimony as regards the role of the accused in the offence, is more than sufficient to bring home guilt of the accused.
36. Further the ocular evidence find corroboration from medical evidence. Medical evidence comprised in the MLC and the postmortem report, is also consistent and points conclusively towards guilt of the accused. Medical evidence shows that the PW1 Gajender Singh received grevious injury while Anil expired. As per PM report the "cerebral damage consequent to injury to head. All injuries are antemortem in nature, recent in duration prior to death and caused by blunt force/surface impact".
37. As regards defects in the investigation is concerned although it is true that the incident took place on 16.08.2019 when on receiving DD No. 22A ASI Jitender recorded the statement of Gajender Singh Ex. PW1/A wherein he categorically stated that the accident had taken place due to rash and negligent driving by driving bus no. DL1PC1654. Despite that investigating officer gave notice u/s 133 MV Act Ex. PW8/D to owner of the bus only on 29.11.2019, pursuant to which accused came to the police station and admitted that at the time of accident he was driving the offending vehicle. Thereafter he was arrested, vehicle was seized. This is a serious lapse on the part of the investigating officer. However, Hon'ble Supreme Court has held that for certain defects in the investigation, the accused cannot be acquitted.
38. Hon'ble Supreme Court in Hema vs. State (2013) 10 SCC 192 whilst holding that fair investigation is a part of the constitutional rights guaranteed under STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 18 / 25 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2023.08.01 16:39:52 +0530 Articles 20 and 21 of the Constitution of India and it is the immediate requirement of the rule of law that investigation must be fair, transparent and judicious, observed as follows:
"14. It is also settled law that for certain defects in investigation, the accused cannot be acquitted. This aspect has been considered in various decisions. In C. Muniappan v. State of T.N. [(2010) 9 SCC 567: (2010) 3 SCC (Cri) 1402] , the following discussion and conclusions are relevant which are as follows: (SCC p. 589, para 55) "55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 19 / 25 Digitally signed APOORV by APOORV GUPTA GUPTA Date: 2023.08.01 16:39:58 +0530 to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
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18. It is clear that merely because of some defect in the investigation, lapse on the part of the investigating officer, it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions, etc. it is the obligation on the part of the court to scrutinise the prosecution evidence dehors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth. "
39. In Arvind Kumar @ Nemichand Vs. The State Of Rajasthan 2021 SCC OnLine SC 1099, Hon'ble Supreme Court of India held as under : "41. There is a subtle difference between a defective investigation, and one brought forth by a calculated and deliberate action or inaction. A defective investigation per se would not enure to the benefit of the accused, unless it goes into the root of the very case of the prosecution being fundamental in nature. While dealing with a defective investigation, a court of law is expected to sift the evidence available and find out the truth on the principle that every case involves a journey towards STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 20 / 25 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2023.08.01 16:40:04 +0530 truth. There shall not be any pedantic approach either by the prosecution or by the court as a case involves an element of law rather than morality".
40. Moreover in the latest pronouncement in Munna Lal Vs. State of Uttar Pradesh and Sheo Lal Vs. State of Uttar Pradesh 2023 SCC OnLine SC 80, Hon'ble Supreme Court of India has held that a defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent.
41. In view of these authoritative pronouncements, for the lapses on the part of investigating officer in carrying out investigation accused is not entitled to get benefit of the same in view of the testimony of injured witness which finds corroboration from medical evidence.
42. As regards the submission that no damages could be found on the offending vehicle, since the offending vehicle was seized after a lapse of about 3 months of incident possibility of getting the same repaired by the accused cannot be ruled out.
43. Result of aforesaid discussion is that, it stands proved that it was the accused who was driving offending vehicle in a rash and negligent manner on the fateful day and time resulting in grevious injuries to PW1 and proved fatal to Anil. As such offence u/s 279/338/304A IPC stands proved. Accused Shiv Kumar is accordingly held guilty and convicted for commission of offences punishable under Section 279/338/304A IPC.
STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 21 / 25
Digitally signed by
APOORV APOORV GUPTA
GUPTA Date: 2023.08.01
16:40:10 +0530
44. Next charge against the accused is u/s 146/196 MV Act and 134/187 MV Act.
45. Section 134 of The Motor Vehicles Act, 1988 so far as is relevant for the present purpose reads as under:
"134. Duty of driver in case of accident and injury to a person.
--When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall--
(a) unless it is not practicable to do so on account of mob fury or any other reason beyond his control, take all reasonable steps to secure medical attention for the injured person, by conveying him to the nearest medical practitioner or hospital, and it shall be the duty of every registered medical practitioner or the doctor on the duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities, unless the injured person or his guardian, in case he is a minor, desires otherwise..........."
46. Section 187 of The Motor Vehicles Act, 1988 provides punishment for driving the vehicle without valid permit. This section reads as under:
"187. Punishment for offences relating to accident.--Whoever fails to comply with the provisions of clause (c) of subsection STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 22 / 25 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2023.08.01 16:40:15 +0530 (1) of section 132 or of section 133 or section 134 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both or, if having been previously convicted of an offence under this section, he is again convicted of an offence under this section, with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
47. In order to substantiate this charge the material witness is PW1 Gajender Singh, who is the eye witness as also an injured witness to the incident. He has deposed that after the accident the bus stopped at the spot. In his cross examination he has stated that had seen the accused in Trauma Centre on the date of incident. As such accused had not run and was present in Trauma centre on the day of incident. Precisely for this reason even the chargesheet was not filed under this section. This charge accordingly fails. Accused is therefore entitled to be acquitted for charge u/s 134/187 MV Act.
48. Section 146 of The Motor Vehicles Act, 1988 so far as is relevant for the present purpose reads as under:
"146. Necessity for insurance against third party risk.
(1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 23 / 25 Digitally signed by APOORV APOORV GUPTA GUPTA Date: 2023.08.01 16:40:21 +0530 this Chapter: [Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6 of 1991).] Explanation. --A person driving a motor vehicle merely as a paid employee, while there is in force in relation to the use of the vehicle no such policy as is required by this subsection, shall not be deemed to act in contravention of the subsection unless he knows or has reason to believe that there is no such policy in force."
49. Section 196 of The Motor Vehicles Act, 1988 reads as under:
"196. Driving uninsured vehicle.--Whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of section 146 shall be punishable with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees, or with both."
50. In order to substantiate this charge PW9 SI Virpal has stated that accused has not produced the insurance of the offending bus and due to this section 146/196 MV Act have been added. Further in his statement u/s 313 Cr.P.C, accused has admitted that he failed to produce the insurance. As such this charge is duly proved against the accused and he is held guilty and convicted for offence u/s 146/196 MV Act.
STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 24 / 25 APOORV Digitally signed by APOORV GUPTA GUPTA Date: 2023.08.01 16:40:26 +0530
51. To sum up, accused is held guilty and convicted for offences u/s 279/338/304A IPC and 146/196 MV Act. He is acquitted of offence u/s 134/187 MV Act.
APOORV Digitally signed by
APOORV GUPTA
GUPTA Date: 2023.08.01
16:40:31 +0530
ANNOUNCED IN THE OPEN (Apoorv Gupta)
COURT ON 01st AUGUST, 2023 MM02, Central District
Tis Hazari Courts/01.08.2023
This judgment consists of 25 pages and each and every page of this judgment is signed by me.
Digitally signed by
APOORV APOORV GUPTA
GUPTA Date: 2023.08.01
(Apoorv16:40:36
Gupta)+0530
MM02, Central District
Tis Hazari Courts/01.08.2023
STATE VS. SHIV KUMAR FIR NO.160 /2019 PS TIMAR PUR PAGE NO. 25 / 25