Delhi District Court
State vs . : Mathura Prasad on 31 October, 2022
IN THE COURT OF MS. KRATIKA CHATURVEDI:
METROPOLITAN MAGISTRATE - 04 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Mathura Prasad
FIR No : 91/08
U/s : 279/304-A IPC
P.S. : Uttam Nagar
DLSW020181282019
1. Date of commission of offence : 11.03.2008
2. Date of institution of the case : 06.10.2008
3. Name of the complainant : Nek Pal
4. Name of accused, parentage &
address : Mathura Prasad, S/o Dauri Lal,
R/o Village Fatehpur, PS Puran Pur,
District Pilibhit, U.P.
5. Offence complained of : 279/304 A IPC
6. Plea of the accused : Pleaded not guilty
7. Final order : 31.10.2022
8. Date of final order : Convicted
Argued by:- Mr. Manish Sidhawat, Ld. APP for the State
Mr. Subodh Gupta, Ld. LAC for accused.
FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 1 of 21
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION: -
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on receiving the DD No. 54A on 11.03.2008, SI Mamoor Khan alongwith Ct. Ananad reached at the spot i.e., E Block, Om Vihar, Phase V, Opposite House E-206, where they saw that a boy, Anil was standing crushed between the water tanker of the tractor bearing no. HR 13A 7360 and the wall alongwith the public persons at the spot. The IO had called the photographer at the spot and thereafter, the dead body of the child was taken to the mortuary of DDU Hospital. The IO recorded the statement of the complainant, Sh. Nek Pal who stated that he had told the driver of the tractor not to take his tractor inside the galli as the same is a narrow one, however, the driver without paying any heed entered the galli with his tractor and killed his brother-in-law in the accident. As such, it is alleged that the accused, Mathura Prasad, committed the offence punishable under section 279/304A of the Indian Penal Code (hereinafter referred to as "IPC"), for which FIR no. 91/2008 was registered at the Police Station, Uttam Nagar.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigation Officer (hereinafter referred to as the "IO") undertook investigation and on culmination of the same, the chargesheet was filed against the aforementioned accused person. After taking cognizance of the offence, the accused, FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 2 of 21 Mathura Prasad was summoned to face trial vide order dated 06.10.2008.
3. On appearance of the accused, a copy of chargesheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPC"). After finding a prima facie case against the accused person, charge for offence under section 279/304A of the IPC was framed against the accused person on 04.03.2010. The accused pleaded not guilty to the aforesaid charge and claimed trial.
4. During the trial, the prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:
PROSECUTION EVIDENCE:
5. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 Sh. Jagdish PW-2 Sh. Nek Pal PW-3 Smt. Savita Mehra PW-4 Ct. Anand Prakash PW-5 Retd. ASI/Tech. Devender Kumar PW-6 ASI Dharambir PW-7 Retd. SI Mamoor Khan (IO) PW-8 Krishan Pal Singh, Record Clerk, DDU Hospital PW-9 Sh. Naresh Kumar DOCUMENTARY EVIDENCE Ex. PW-1/A Superdarinama of the tractor tanker Ex. P1 to P-7 Photographs of the tractor tanker FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 3 of 21 Ex. PW-2/A Statement of PW-2 Ex. PW-2/C Personal search memo Ex. PW-3/A Photographs of the offending vehicle (colly) Ex. PW-4/A Possession memo Ex. PW-4/B Arrest memo Ex. PW-4/C Seizure memo of the DL Ex. PW-5/A Mechanical Inspection report Ex. PW-6/A Copy of FIR Ex. PW-6/B Copy of endorsement on rukka Ex. PW- 7/A Site Plan Ex. PW- 8/A Postmortem report ADMITTED DOCUMENTS Ex. P/A/1 DD No. 54A dated 11.03.2018
6. PW-1, Sh. Jagdish has deposed that he is the owner of the tractor bearing no. HR 13A 7360 and that on the date of the incident, the accused being his driver was driving the said tractor tanker. PW-2, Sh. Nek Pal @ Nem Pal, has deposed that at about 7:00 p.m. on the date of the incident, he had visited the house of Sh. Jasram, the mausa of his wife. He further deposed that he had objected the accused to enter his tractor make Eicher inside the gali which is situated in Uttam Nagar as the gali was narrow. He further deposed that the tire of the tractor got entangled in a gutter/pit in the gali and the tractor was having a water trailer and the same was being driven by the accused.
He further deposed that he cannot tell the registration number of the tractor which the accused was driving however the police had seized the same. He deposed that his brother-in-law, Anil, who was aged about 12-13 years got crushed between the water tanker and the wall which is near his house. The accident had taken place due to the fault of the accused. After about 10-15 minutes from the incident, the FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 4 of 21 police had reached the spot and had arrested the accused. Some of the neighbours had gathered there. In his cross-examination (recalled after an application under section 311 CrPC allowed vide order dated 18.11.2019), he deposed that at about 4-5 persons were present around the spot where the accident took place. One female had called at 100 number but he does not remember his name. He further deposed that other persons present at the spot also asked the accused not to insert the tractor in the street where the accident took place as the street was narrow.
7. PW-3, Smt. Savita Mehra, has deposed that on 11.03.2008, she was present at her home and suddenly she heard the noise of "Dhadam" and after hearing the same, she came out from her house and saw one water tank had turned near the wall of her house and one male child was struck between the wall and tanker and that child died due to the accident. She further deposed that public persons who were gathered at the spot were beating the driver and she told the public persons not to beat the driver. Thereafter, she locked the driver in room and made a PCR call. She further deposed that she does not remember the whole number of the tanker but it was registered in Haryana bearing no. 7360. The police officials came at the spot and she handed over the accused to the police. The witness has correctly identified the accused and the photographs of the offending vehicle by which the child died due to the accident. In her cross-examination by the Ld. APP for the State, she has refuted the suggestion that she made a statement before the police under section 161 CrPC that when she reached the spot, the accused was trying to run away from the spot and she FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 5 of 21 alongwith PW-2 caught hold of him. In her cross-examination by the Ld. Counsel for the accused, she has deposed that she did not see the driver who was driving the vehicle and that she had not seen the accident but only heard the noise. She has further deposed that she neither knows the name of the accused nor the address of the parents of the deceased, however, PW-2 was living in her locality for about 5- 6 years prior to the accident.
8. PW-4, Ct. Anand Prakash, has deposed that on 11.03.2008, he was on emergency duty from 8:00 a.m. to 8:00 p.m. alongwith ASI Mahmoor Khan. On receiving DD No. 54A at 7:30 p.m. regarding the accident, he alongwith ASI Mahmoor Khan reached at the spot and found the public persons gathered there and one water tanker of Delhi Jal Board attached with the tractor no. HR-13A-7360 was lying at the spot and they saw one child aged about 13 years lying dead under the tanker. He further deposed that PW-2 met the IO who disclosed that the deceased child was his brother-in-law and told that he asked the accused not to go in the gali as there was no passage to cross the gali but despite the same he entered illegally. The accused was produced by one lady who told that he is the driver of the tanker. The tanker was partly turned on when they reached there and was taken in a proper position. Thereafter, IO recorded the statement of PW-2 and prepared the rukka, which was handed over to him for the registration of FIR. Accordingly, he went to the PS for the registration of FIR and after sometime he came back to the spot with the copy of FIR and original rukka and handed over the same to the IO. The tractor tanker was taken into the possession and the accused was arrested, his personal FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 6 of 21 search was conducted and his DL was seized. IO directed him to take the dead body to DDU mortuary and the body was preserved. On 12.03.2008, he alongwith ASI Mahmood Khan went to mortuary DDU Hospital for conducting post-mortem of deceased and the dead body was identified by the relatives of the deceased. The witness has correctly identified the photographs of the tractor tanker. In his cross- examination, he has stated that the accused had not sustained any injury when they reached at the spot and no medical was conducted of the accused. He has deposed that the site plan was prepared before the registration of the FIR. He also deposed that PW Nek Pal and PW Savita remained at the spot till the last proceedings. He has refuted the suggestion that the tanker was turned down due to the brake opened.
9. PW-5, Retd. ASI/Tech Devender Kumar, has deposed that on 12.03.2008, he had mechanically inspected the Eicher Tractor with trolley water tanker bearing registration no. HR-13A-7360 at PS Uttam Nagar at the request of ASI Mamoor Khan in the present case. During the inspection, he had observed no fresh damage was found and the vehicle was found fit for road test. PW-6, ASI Dharambir, has deposed that on 11.03.2008, he was posted as DO at PS Uttam Nagar and his duty timings were from 5:00 p.m. to 1:00 a.m. On the alleged date of the incident at about 9:45 p.m., PW-4 produced one rukka sent by SI Mamoor and on the basis of the rukka, he had registered the FIR No. 91/08 and handed over the same to PW-4 for handing over to SI Mamoor.
10.PW-7, Retd. SI Mamoor Khan, has deposed that on 11.03.2008, on FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 7 of 21 receiving DD No. 54A, he along with PW-4 went to the spot and found that one tractor was stuck in a congested street and the water tanker attached with the tractor was turned and a boy i.e., deceased was stuck in the middle of the wall and the water tank attached with the tractor. He informed the senior officer in PS and some police officials reached at the spot along with the SHO PS Uttam Nagar. Thereafter, with the help of the public persons and police staff, the water tanker was made straight and the deceased was taken out. The deceased was sent to the DDU hospital through PCR Van. The photographer was called who took the photographs of the spot. He recorded the statement of the relative of the deceased person and prepared the rukka and handed over the same to PW-4 for getting the case registered. He further deposed that PW-2 handed over the custody of the accused to him whose name was revealed as Mathura Prasad. He prepared the site plan, seized the tractor tanker and driving license of the accused, arrested him, conducted his personal search memo and recorded the statement of the witnesses. He has correctly identified the accused and the photographs of the case property. In his cross-examination, he has deposed that he cannot tell whether a tractor can pass through that street i.e., the spot of the incident as the street was congested. He has further deposed that he cannot tell as to who had made 100 number call. He stated that no injury was seen on the body of the accused when he reached at the spot and that the accused was already apprehended by the complainant Nek Pal and some other public persons. He stated that no other independent public witness was present there who had witnessed the incident. He also FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 8 of 21 stated that residents of the street were not joined as witnesses however, one lady had joined alongwith the complainant. He further deposed that he does not know the owner of the vehicle but the same belonged to Delhi Jal Board and he had not made any inquiries from the Delhi Jal Board as to who was driving the said offending vehicle on the day of the accident as the accused was apprehended at the spot. He has deposed that when he reached at the spot, 30-40 public persons were present at the spot and upon enquiry, nobody gave his statement. He has refuted the suggestion that time, date and place of arrest is not mentioned in the arrest memo as the accused was not arrested from the spot.
11.PW-8, Krishna Pal Singh, Record Clerk, DDU Hospital has deposed that postmortem report no. 237/08 is prepared by Dr. Sumit Saini in his own handwriting and bears his signature. PW-9. Sh. Naresh Kumar, has deposed that he is the photographer and on the date of the incident, he was called by the police to reach at the spot for taking photographs. He took the photographs of the spot showing one blue colour water tanker and one boy was crushed between the wall and the side of the tanker. He also deposed that the street in which the accident took place was very narrow about 8-10 feet.
STATEMENT OF THE ACCUSED AND DEFENCE EVIDENCE
12.Thereafter, before the start of defence evidence in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded on 02.11.2019 without oath under section 313 CrPC, FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 9 of 21 wherein he stated that he is innocent and has falsely been implicated in the present case. Pursuant thereto, he stated that he does not wish to lead defence evidence.
ARGUMENTS
13. I have heard the Ld. APP for the State and Ld. LAC for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
14. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
15. Per contra, the Ld. LAC for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. LAC further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE
16.The accused has been charged for the offences of rash driving on public way (S. 279 IPC) and causing death by a rash or negligent act (S. 304A IPC) in the present case. Whereas under Section 279 IPC, FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 10 of 21 the factum of rash or negligent driving likely to endanger human life or cause hurt etc. is in itself the offence, under Section 304A IPC, death of the victim. In order to bring home the guilt of the accused, the prosecution has to prove that the accused was driving the offending in a rash or negligent manner, and due to such driving of the accused, the victim suffered injuries. The act should not amount to culpable homicide.
17.Thus, the gravamen of the offences under Section 279/304A IPC is the act of the accused, done with "rashness" or "negligence". The IPC does not define either of these terms. However, the ambit of these terms has now been settled by judicial pronouncements of superior Courts. In Empress of India vs. Idu Beg ILR (1881) 3 All 776 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the consequences of such act. The Hon'ble Apex Court in the case of Rathnashalvan vs. State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-:
"7. .... 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 the amount of care and circumspection is 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 FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 11 of 21 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. 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 the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted."
18.Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal vs. CBI (2014) 6 SCC 173. The standard of negligence was discussed in the said case, by observing, inter alia, as under-:
"58. In the case of "negligence" the courts have favoured a meaning which implies a 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 which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 12 of 21 negligence arises from the neglect of the civil duty of circumspection."
19.Thus, rashness implies doing an act despite the consciousness that it might result in injuries. Negligence, on the other hand, means lack of reasonable care that a person placed is the fact situation ought to take, in order to avoid injuries. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE
20.In the instant case, it is not in dispute that an accident had taken place and as a result the child has died due to the accident on the date of the incident. The case of the prosecution hinges upon the testimony of the star witness, PW-2, Nek Pal who has deposed that on the date of the incident, the accident took place due to the fault of the accused, where his brother-in-law, Anil (deceased), aged about 12-13 years got crushed between the water tanker and the wall near his house. He has also deposed that he had objected the accused to enter his tractor inside the gali which is situated in Uttam Nagar as the same was narrow. It is trite law that it is not the opinion of the witness as regards the rash and negligent driving of the accused which is significant, but what is essential is the depiction of the manner in which the offending vehicle was being driven for which a reliance is being placed upon Kishore Chand Joshi Vs. State Crl. Rev. Petition 627/2016 pronounced on 12.11.2018 by the Hon'ble Delhi HC. In the present FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 13 of 21 case, the witness had deposed that he alongwith some other public persons had cautioned the accused not to enter the galli as the same was narrow, however, the accused without paying any heed entered the galli due to which the deceased got struck between the tractor tanker and the wall and as a result died on the spot, which shows the negligent conduct of the accused.
21.PW-2 further deposed that one female had called at 100 number which is further corroborated by the testimony of PW-2. Admittedly, PW-3 had not witnessed the accident but on the date of the incident, on hearing the noise of "dhadam", she came outside her house and saw that one male child was struck between the wall and the tanker and the child had died due to this accident. She had further deposed that the public persons started beating the driver and she told them not to beat the driver. Thereafter, she locked the driver in the room and made a PCR call. The statement of PW-3 also becomes relevant being a part of res gestae and therefore, admissible under section 6 of the Indian Evidence Act, 1872. The doctrine of res gestae stands incorporated in Section 6 which reads:
Section 6. Relevancy of facts forming part of same transaction- Facts, which though not in issue, or so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
22.This principle is an exception to the hearsay rule. Manifestly, facts which may be proved as part of res gestae must be facts other than those in issue. Furthermore, these facts must form part of that very transaction and be thus connected with the facts in issue. Evidence FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 14 of 21 regarding facts in issue disclosed by a transaction can be given under Section 5 of the said Act whereas evidence regarding other facts which must be connected with the facts in issue in a manner so as to form part of the same transaction can be given under Section 6 of the said Act. In the instant case, even if PW-3 had not seen the accident but statement regarding the fact that the accident was caused due to the negligence of the driver of the water tanker stands proved. Moreover, even if PW-3 has partially turned hostile that does not mean her testimony cannot be relied upon as laid down under section 154 (2) of the Evidence Act, 1872. The reliance can also be placed upon the judgment of the Hon'ble Supreme Court in the case of G. Parshawanath v. State of Karnataka [AIR 2010 SC 2914].
23.The Ld. LAC for the accused has also contended that the testimony of PW-2 cannot be relied upon as he is an interested witness as the deceased was the brother-in-law of PW-2. The witness is admittedly related to the deceased however, it is a settled that the testimony of the related witness cannot be discarded merely because he was related to the deceased victim. The Hon'ble Supreme Court in the case of State of U.P. v. Hakim Singh [AIR 1980 SC 184] has held that being near relations and living practically in the same house, these witnesses cannot be said to interested witnesses but are very natural witnesses. It was further held in the case of State of Haryana v. Shakuntala [AIR 2012 SC 2123] that the statement of the witness could not be rejected merely on the ground that it was a statement of the related or interested witness. In the instant case, PW-2 had lost his close relative and he had no reason to falsely implicate the accused. Therefore, FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 15 of 21 there is no reason to disbelieve the testimonies of PW-2 where the same is found to be credible.
24.Further, PW-4, Ct. Anand Prakash in his testimony has deposed that he had accompanied PW-7, SI Mahmoor Khan to the spot after receiving DD no.54A regarding the accident, where they found a gathering of public persons and one water tanker of Delhi Jal Board attached with tractor no. HR-13A-7360 was lying at the spot and saw one child aged about 13 years lying dead under the water tanker. They met PW-2 at the spot who disclosed that the deceased was his brother- in-law and told them that he had asked the accused not to enter the gali as there was no passage to cross the gali but despite the same he entered illegally. The accused was produced by one lady who told them that he is the driver of the tanker. Accordingly, IO prepared the rukka on the statement of PW-2 and consequently the FIR in question was registered. After complying with the procedural requirements, the dead body was taken to the mortuary of DDU hospital which was preserved for conducting post-mortem. After the post-mortem vide Ex. PW8/A, the dead body was handed over to his relatives. In his cross examination, he has refuted the suggestion that the tanker was turned down due to the brake opened. There was no improbable fact, which accused could cull out from his testimony. Therefore, his testimony is found to be trustworthy and reliable.
25.PW-7, Retd. SI Mamoor has also corroborated the testimony of PW-4. In his cross-examination, he has deposed that the accused was already apprehended by PW-2 and some other public persons. He has further justified as to why he had not enquired from the Delhi Jal Board as to FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 16 of 21 who was driving the offending vehicle on the day of the accident as the accused was apprehended at the spot itself. He has further stated that he made inquiries from the public persons present at the spot but nobody gave the statement. He recorded the statement of PW-3 who was the occupier of the house no. 199E of the said gali where the accident had taken place and the statement of the complainant i.e., PW-2. In addition to that, the IO PW7 has also deposed that photographs of the spot vide Ex. PX-1 (colly 7) were clicked by the photographer who was called on the spot which has been supported by the testimony of the photographer himself i.e., PW-9 which shows that one blue colour water tanker and one boy was crushed between the wall and the side of the tanker. PW-9 has also deposed that the street in which the accident took place was very narrow about 8-10 feet. There was no improbable fact, which accused could cull out from his testimony. Therefore, his testimony is found to be trustworthy and reliable.
26.PW-6 ASI Dharambir has deposed that he had registered the FIR in question. To that extent, he stuck to his version. In his examination, he gave details of his duty hours and had also deposed that the FIR was registered on the rukka brought by PW-4, Ct. Anand for handing it over to PW-7, SI Mamoor. So, there was nothing improbable, in his testimony and thus, the same is trustworthy and reliable.
27.The contention of the Ld. LAC that the mechanical inspection has not been done of the tanker which was attached to the tractor which is not tenable as PW-5 has clearly deposed that he had mechanically inspected Eicher Tractor with trolley water tanker bearing registration FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 17 of 21 no. HR-13A-7360 at the request of PW-7 and it was observed that no fresh damage was found and the vehicle was found fit for road test. Additionally, it has also been argued by the Ld. LAC for the accused that there are certain inconsistencies/lacunae in the version of the prosecution witnesses, for instance, no public person was made witness in the case or was joined by the IO during investigation, which is not acceptable. In this regard, it would also be apposite to the reiterate the settled legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another V. State of Gujarat [AIR 1988 SC 696]. Further, it has again been reiterated by the Hon'ble Supreme Court in the case of Guru Dutt Pathak vs. State of Uttar Pradesh Crl. Appeal No. 502 of 2015 that non- examination of independent witnesses is not fatal to the case of the prosecution when other prosecution witnesses are found to be trustworthy and reliable. Further, the testimonies of the witnesses are indeed impeccable and corroborative of each other.
28. It has further been argued that there are material contradictions in the testimonies of the prosecution witnesses and that the benefit of doubt be given to the accused person. However, the same in the opinion of this court are barely material if viewed in the backdrop of the otherwise strong and coherent case of the prosecution. It has been observed by the Hon'ble Supreme Court in Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601] that, "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 18 of 21 and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
29.The Ld. LAC for the accused has contended that the IO had not con- ducted a fair and proper investigation and there are material discrep- ancies in the investigation. He argued that IO has failed to mentioned the place and time of arrest. Further, the police officials have failed to produce the DD entry qua the arrival and departure for the spot. He also argued that the IO had failed to place on record certificate under section 65B of the Evidence Act alongwith the FIR and has relied upon the judgment of the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal 2020 7 SCC 1. The Ld. LAC for the accused has contended that the site plan vide Ex. PW7/A is false and fabricated as the date, sections and the PS were written even before the registration of FIR. However, the same is not a material defect to disbelieve the case of the prosecution. The said site plan bears the signature of the PW-7 who is the IO and the witness i.e., PW-2. It depicts the state of affairs as told by PW-2 and PW-3 and further corroborated by the testimonies of PW-4 and PW-7 regarding the accident in question. The contention that the site plan is a fabri- cated one is not tenable as it is a settled law that defective / improper investigation by the investigating agency is solely not a ground for ac- quittal as it would tantamount to playing into the hands of the investi-
FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 19 of 21gating officer if the investigation is designed to be defective. How- ever, these defects cannot be a ground to give the benefit of doubt to the accused when the prosecution has proved its case otherwise. The Hon'ble Supreme Court in the case of C. Muniappan and Others vs State of Tamil Nadu (2010) 9 SCC 567 with regard to the defective investigation has observed as under, "Defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. 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 to whether such lapses affected the objects of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the fake and confidence of the people in the criminal justice administration would be eroded."
30.Therefore, the lapses which have been pointed out by the Ld. LAC for the accused does not materially affect the testimony of the prosecution witnesses and the same leads to the conclusion that the accused negligently caused the death of the child who was barely 12-13 years old by his tractor tanker.
CONCLUSION FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 20 of 21
31.To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence charged against the accused beyond reasonable doubt. The testimony of the complainant and other witnesses is coherent and directly implicates the accused. The defence has failed to punch a hole in the consistent testimony of the prosecution witnesses. This Court has no hesitation to hold that the prosecution has proved all the ingredients of the offences beyond reasonable doubt.
32. Resultantly, the accused, Sh. Mathura Prasad is hereby found guilty for offences under section 279/304-A of the Indian Penal Code, 1860 and is convicted accordingly. Let the convict be heard separately on sentencing.
Announced in the open court on 31.10.2022 in the presence of the accused.
Digitally signed by KRATIKA KRATIKA CHATURVEDI
CHATURVEDI Date: 2022.11.01
15:49:22 +0530
(Kratika Chaturvedi)
Metropolitan Magistrate-04,
Dwarka, Delhi/31.10.2022
Note:- This judgment contains 21 pages and each page has been signed by me.
FIR No. 91/2008, PS Uttam Nagar State vs. Mathura Prasad Page 21 of 21