Delhi District Court
State vs . : Vivek on 19 August, 2023
IN THE COURT OF SH. VAIBHAV KUMAR
METROPOLITAN MAGISTRATE - 04 (NORTH-EAST)
KARKARDOOMA COURTS: DELHI
State Vs. : Vivek
FIR No : 949/2014
U/s : 279/338 IPC
P.S. : KARAWAL NAGAR
DLNE020015932015
1. CNR No. of the Case : 464063/2015
2. Date of commission of offence : 20.10.2014
3. Date of institution of the case : 15.05.2015
4. Name of the complainant : Smt. Shakuntla Devi
5. Name of accused, parentage &
address : Vivek , S/o Sh. Jagdish
Chand, R/o H. No. G-45,
Gali No.1, Jain Colony,
Johripur, Karawal Nagar,
Delhi
6. Offence complained of : 279/338 IPC & Section
3/181 M. V. Act
7. Plea of the accused : Pleaded not guilty
8. Final order : Convicted
9. Date of final order : 19.08.2023
Argued by:- Ms. Deepika Singh, Ld. APP for the State
Mr. Kanhaiya , Ld. Counsel for accused.
FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 1 of 21
JUDGMENT
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 20.10.2014 at about 10.30 AM, at Mata wali gali opposite Saifi motors, Johiripur Road, Karawal Nagar Delhi, the accused Vivek was driving the motorcycle bearing no. DL- 5SU-5356 in a rash and negligent manner and had hit against the complainant Smt. Shakuntla Devi due to which she sustained grievous injury. As such, it is alleged that the accused person has committed the offence punishable under section 279/338 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR no. 949/2014 was registered at the police station Karawal Nagar, New Delhi. During investigation, the accused could not produce any valid driving license and therefore Section 3/181 of M. V. Act was added in the present matter.
INVESTIGATION AND APPEARANCE OF ACCUSED PERSONS
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the charge-sheet against the accused person was filed. The Ld. Predecessor of this court took the cognizance against the accused person and summons were issued to the accused. On his appearance, a copy of the chargesheet was supplied to the accused in terms of section FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 2 of 21 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused person, charge under section 279/338 of IPC and Section 3/181 M. V. Act was framed against the accused on 01.08.2016. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. 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 Shakuntla Devi PW-2 ASI Harbir Singh PW-3 Ct. Sanjay PW-4 ASI Satish Verma PW-5 Dr. Anshul Mugdal PW-6 Retd. SI M. L. Dhyani PW-7 SI Yash Pal Singh PW Dr. Rakesh Malhotra Ex.PW1/A Ex. PW1/B Site plan Ex.PW2/A Copy of FIR No. 949/14 Ex.PW 2/B Endorsement over rukka Ex. PW3/A Arrest memo of accused Vivek Ex. PW3/B Personal search memo Ex.PW3/C Seizure memo of motorcycle bearing No. DL5SU 5356 Ex. PW3/D Seizure memo of documents Ex.PW4/A Original rukka Ex. PW4/B Notice u/s 137 MV Act Ex. PW4/D Mechanical inspection memo of the offending vehicle ADMITTED DOCUMENTS Ex. P-1 to Photographs of case property i.e. motor-cycle P-3.FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 3 of 21
4. PW-1 Smt. Shakuntla Devi has deposed that on the day of incident at about 10.00 a.m, she was crossing the road outside her house when the motorcycle of the accused came from the right side and hit her due to which she sustained injuries on her right hand. The witness has identified the case property as well as accused in the Court. During her cross-examination, she has stated that the rare part of the motorcycle had hit her.
5. PW-2 ASI Harbir Singh has stated that on 20.10.2014, he had received a PCR call regarding an accident at about 10.38 a.m and at about 12.15 p.m, he received rukka which was sent by ASI Satish upon which he registered the present FIR bearing No.949/2014.
6. PW-3 Ct. Sanjay has deposed that on 20.10.2014, he was on emergency duty and about 10.30 a.m, a call was received by ASI Satish regarding accident at main road Johripur upon which he alongwith ASI Satish reached at the spot where they met with complainant Shakuntla. He also deposed that the complainant handed over one motorcycle and the accused and told that the said motorcyclist had committed the offence. Thereafter, he has stated that the PCR took the complainant to GTB Hospital and ASI Satish also went to the hospital, however, he remained at the spot with the accused and the case property. He has also stated that the IO did the proceedings for getting the FIR registered and the accused was interrogated and arrested by the IO. He has also stated that the offending vehicle i.e. motorcycle bearing registration no. DL-5SU-5356 was seized and its documents were also seized by the IO. The witness has correctly identified case FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 4 of 21 property and the accused. During the cross-examination, he has denied the suggestion that accused was apprehended from his house and that no recovery was affected from the accused.
7. PW-4 ASI Satish has deposed the similar lines to the PW-3. During his cross-examination, he has stated that after receiving the information, he reached the spot within 07-10 minutes however, he did not record statement of public persons who apprehended the accused. He has also stated that when he reached the spot, the motorcycle was parked at the right side and the injured had stated that accused had also fallen down on the road during the accident.
8. PW-5 Anshul Mudgal has stated that on 20.10.2014, he was posted as CMO, GTB Hospital and at about 11:10 a.m, the patient namely Shakuntla was brought to GTB Hospital by HC Rustam Singh. He has stated that Dr. Sajal had conducted the medical examination and has proved the genuineness of MLC bearing No. B-4366/14. During his cross-examination, he has stated that the patient had not disclosed the name of driver or vehicle at the time of her examination. He has also stated that such punctured wound may be sustained by any person due to a fall.
9. PW-6 Retd. SI M. L Dhyani has deposed that on 22.10.2014, one motorcycle bearing registration no. DL-5SU-5356 was brought to him for mechanical inspection and he had conducted the mechanical inspection and prepared the report which mentions that head-light on the right side was having scratches and other parts of the motorcycle were having scratches, however, the said vehicle was fit for road. Witness has correctly identified the vehicle. During his cross-
FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 5 of 21examination, he has stated that the scratches were fresh.
10. PW-7 SI Yash Pal has deposed that on 05.11.2014, the investigation was handed over to him and on 22.12.2014, he received the MLC and thereafter the prepared charge-sheet and filed it in the Court.
11. PW Dr. Rakesh Malhotra has proved the genuineness of MLC bearing No. B-4366/14. He has also proved the opinion given by Dr. Gurvinder Singh regarding the nature of injury being grievous. During his cross-examination, he has stated that he was not present while the MLC was being prepared.
STATEMENT OF THE ACCUSED PERSON AND DEFENCE EVIDENCE
12.Thereafter, before the start of defence evidence in order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused person was recorded on 22.07.2023 without oath under section 281 r/w 313 CrPC, wherein he has stated that he is innocent and has falsely been implicated in the present case. He further stated that his motor-cycle was stationary and it was standing in the side and he does not know how and when the complainant suffered injury. He also stated that he does not want to lead defence evidence.
ARGUMENTS
13. I have heard the Ld. APP for the State and Ld. Counsel 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 FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 6 of 21 ingredients of the offence are fulfilled in the present case. She has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. She 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. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel 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
1. To bring home the guilt of rash and negligent driving to the accused for the offence punishable under section 279 and section 338 of the Indian Penal Code, 1860 and Section 3/181 of M. V. Act, five things need to be proved by the prosecution that too beyond any reasonable doubt. The five essential ingredients are as follows: -
(i) That the accident actually took place.
(ii) That the accident took place due to rash and negligent driving.
(iii) That the accused was the person who was driving the vehicle at the relevant time.
(iv) That the victim sustained grievous injuries due to the accident.
(v) That the accused was not having a valid driving license at the time of incident.
2. The accused has been charged for the offences of rash driving FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 7 of 21 on public way (Section 279 IPC) and causing grievous injuries by a rash or negligent act (Section 338 IPC) in the present case. In order to bring home the guilt of the accused, the prosecution has to prove that the accused was driving the offending vehicle in a rash or negligent manner, and due to such driving of the accused, the victim suffered grievous injuries.
3. The gravamen of the offences under Section 279/338 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 FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 8 of 21 dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. 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."
4. 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 FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 9 of 21 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 negligence arises from the neglect of the civil duty of circumspection."
5. 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
16.In the instant case, it is not in dispute that an accident had taken place and as a result the victim namely Smt. Shakuntala Devi suffered injuries on the date of the incident. The case of the prosecution hinges upon the testimony of the star witness, i.e., PW-1, Shakuntala Devi and corroboratory witnesses PW- 3, Ct. Sanjay Singh and PW-4, SI Satish Verma. PW1 has deposed that on the date of the incident, she was crossing road at main JohriPur Road towards Mata Wali Gali when suddenly one motorcycle bearing no. DL-5SU-5356, came from her right side and hit against her due to which she fell down and sustained injuries on her right hand and elbow. She FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 10 of 21 has also stated that the rider of the motorcycle also fell on the spot. The witness has categorically stated that the accused was the person who was riding the motorcycle.
17.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 High Court. In the present case, the witness had deposed that the offending vehicle suddenly came and hit the victim when she was crossing the road. The site plan also shows that the incident occurred in the middle of a straight main road and the accused had enough time to apply breaks after having a sight of the victim, however he failed to do so owing to his negligence. Further, during investigation it was found that the accused was not having a valid driving license at the time of incident which shows that as per law he was not authorized to drive the said vehicle. Both these facts show the negligence of the accused as held by the Hon'ble High Court of Kerala in Martin @ Jinu Sebastian and Anr. V. State of Kerala (Crl. Appeal No.1557 of 2007) and also noted by the Hon'ble Supreme Court of India in State v. Sanjeev Nanda [(2012) 8 SCC 450 : 2012 CrLJ 4174 : AIR 2012 SC 3104].
18.PW-3 and PW4 have also deposed regarding the investigation and have corroborated the fact that upon receiving the information regarding the said accident, they reached the spot and found the complainant who handed over the accused as the person whose negligence resulted into the said accident.
FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 11 of 21They both have stated that the offending vehicle was also found on the spot. They both have also deposed that the victim was taken to the Hospital by a PCR Van. Further PW 4 has proved the investigation being the initial Investigating officer of the case.
19.The Ld. Counsel for the accused contended that neither PW-3 nor PW-4 were present at the spot and that they had not seen the driver of the offending vehicle while hitting the victim, so the benefit of doubt be given to the accused as the identity of the accused is not proved. However, it is pertinent to note that the accused was apprehended from the spot by the complainant herself and the brother-in-law of the accused had replied to the notice under section 133 MV Act stating that the accused Vivek was riding the motorcycle on the date of incident who was not possessing a valid driving license at the time of the incident. Further, the eye witness, i.e., the complainant has also identified the accused to be the rider of the offending vehicle. Moreover, the identity of the offending vehicle was not disputed by the accused during trial.
20.The Ld. Counsel for the accused has also contended that the testimony of PW-3 and PW-4 cannot be relied upon as both of them are police witnesses. However, their testimony cannot be discarded merely because the prosecution witnesses are police witnesses who were on their official duty. 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.
FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 12 of 21Shakuntala [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, the complainant PW-1 had suffered injuries and there is no reason to falsely implicate the accused. The contention that no other independent public person was made a witness in the case or was joined by the IO during investigation is not acceptable as the prosecution has proved its case otherwise. 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. Therefore, there is no reason to disbelieve the testimonies of PW-1, PW-3 and PW-4 when the same is found to be credible.
21.It has been further stated by Ld. Defence Counsel that there is no public witness to prove the accident. Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of fact. Once the evidence of a truthful public witness in the form of victim is available on record, there is no requirement of any other wit- ness to prove such facts. The law regarding a witness who is a victim of the offence is well settled that it stands on a higher FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 13 of 21 footing. For appreciating the evidence of a victim, the Court has to bear in mind that the presence of such victim at the time and place of the occurrence cannot be doubted. While appreciating such evidence, the Court must not attach undue importance to minor discrepancies, if any. The complainant is the victim of the offence in the present case. She is the best witness to describe the manner in which the offence was com- mitted by the accused. Being the victim of the crime, she would be most keen to ensure that the real culprits do not go scot free. In Abdul Sayeed vs State of M.P, (2010) 10 SCC 259, the Hon'ble Supreme Court of India, while dealing with the reliability of testimony of injured witness, has held as un- der:
"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 in-built 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."
22. Further, PW-4, being the IO has further corroborated the testimony of the prosecution witnesses and that he prepared the rukka and handed over the same to Ct. Sanjay and got the FIR registered. Further, in the reply to the notice under section FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 14 of 21 133 MV Act, the owner had stated that the accused was not having a valid driving license at the relevant time and has not denied the fact that the accused was driving the offending vehicle at the time of accident which has further been corroborated by the testimony of PW-1. The accused was not even able to produce any valid driving license during the trial. There was no improbable fact, which accused could cull out from the testimonies of the prosecution witnesses. Therefore, the testimonies of the prosecution witnesses are found to be trustworthy and reliable.
23.Having proved the identity of the accused and the accident taking place due to his rash or negligent driving, the prosecu- tion was required to prove that the act of the accused was Causa Causan. To hold the accused guilty, it must be proved on the record that the act of the accused was the proximate cause of injuries sustained by the victim and not the remote cause. The causes of the injuries have been duly established by the prosecution through MLC vide Ex. PW5/A. Perusal of the said report Ex. PW5/A reveals that the victim sustained grievous injuries by means of subsequent RTA. All injuries were reported to possibly inflicted in a road traffic accident. Therefore, in the considered opinion of the court, the prosecu- tion has sufficiently proved on the record that the proximate cause of the injuries received by the victim was the accident caused by accused by his rash and negligent driving.
24.The Ld. Counsel for the accused has contended that the IO had not conducted a fair and proper investigation and there are material discrepancies in the investigation. He has also contended that the IO failed to collect the CCTV footage of FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 15 of 21 the incident and also did not examine any public person as a witness. The Ld. Counsel for the accused has contended that the statement of PW-1, being the victim is not sufficient to prove the case of the prosecution. Where the MLC of the victim is on record to show that she received injuries and the same has not been disputed by the accused, the question was that whether the said injuries have been sustained by her due to rashness and negligence of the accused. The testimony of the victim has been of utmost importance which have been further corroborated by the MLC EX. PW5/A and the prosecution has been able to establish its claim and it was up to the accused to rebut the claim of the prosecution. The contention that the site plan is a fabricated one is not tenable as it is a settled law that defective/ improper investigation by the investigating agency is solely not a ground for acquittal as it would tantamount to playing into the hands of the investigating officer if the investigation is designed to be defective. 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 FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 16 of 21 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."
25.It is also pertinent to note that the Ld. Counsel has not been able to show any major contradictions in the testimonies of the prosecution witnesses so as to disbelieve their testimonies and even if he would have pointed out, it is a settled law that some minor contradictions are bound to occur when the wit- nesses are examined after a long gap of time from the date of incident. However, such minor contradictions cannot make the evidence unreliable. A reliance be placed upon the judg- ment of the Hon'ble Apex Court in Bhagwan Jagannath Markad and others Vs. State of Maharashtra (2016) 10 SCC 537, wherein it has observed as under :
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 17 of 21 enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle "
26.It has also 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 FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 18 of 21 lapse of time, due to mental disposition such as shock 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."
27.In the present case also, there is no major contradiction noted in the testimony of the prosecution witnesses. Their testi- monies are cogent and convincing. There is no reason to doubt their testimonies. The MLC of the victim is also on record. Perusal of the MLC Ex. PW5/A would show that the nature of injury as grievous in nature. Even when the victim appeared in the court after 5 years of the incident, the court has observed that she had stitches mark over her right hand. There appears no reason as to why the complainant would falsely implicate innocent person while leaving the real culprit unpunished.
28.The accused during his examination under Section 313 Cr.P.C. has stated that he had not committed any offence rather the victim fell herself on the road. The burden to prove his de- fence was on the accused. The accused, however, has not led any evidence to prove his defence. It is settled position of law that statement made during examination under Section 313 Cr. PC is not evidence. It has not been made on oath and has not been tested on the touchstone of cross-examination. The Hon'ble High Court of Delhi in V.S.Yadav vs Reena, Crl. A. no. 1136/2010, decided on 21/09/2010, has discussed the scope of examination of accused under Section 313, Cr.P.C. It FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 19 of 21 has held as under:
"5. It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful...."
29.In the present case, for the aforesaid reason, the statement made by the accused person during his examination under Section 281 r/w 313 Cr.P.C. and in light of the testimonies of the other prosecution witnesses, there is no specific reason to disbelieve the testimony of the victim when the same is other- wise credible and trustworthy. Therefore, the lapses which have been pointed out by the Ld. Counsel for the accused does not materially affect the testimony of the prosecution witnesses and the same leads to the conclusion that the ac- cused was driving his vehicle in such a rash and negligent manner that it had caused the grievous injuries to the PW-1, Shakuntala Devi by the offending vehicle.
CONCLUSION
30.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 FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 20 of 21 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.
31. Resultantly, the accused, Sh. Vivek S/O Sh. Jagdish Chandra is hereby found guilty for offences under section 279/338 of the Indian Penal Code, 1860 and section 3/181 of the Motor Vehicle Act 1988 and is convicted accordingly. Let the convict be heard separately on sentencing.
Announced in open court on 19.08.2023 in the presence of the accused.
(Vaibhav Kumar) Metropolitan Magistrate-04, North-East/Karkardooma, Delhi/19.08.2023 Note:- This judgment contains 21 pages and each page has been signed by me.
FIR No. 949/2014, PS Karawal Nagar State v. Vivek Page 21 of 21