Delhi District Court
Md. Ijhar Ansari vs State Of Nct Of Delhi on 23 September, 2022
IN THE COURT OF SH. VIMAL KUMAR YADAV
PRINCIPAL DISTRICT & SESSIONS JUDGE (NORTH)
ROHINI COURTS, DELHI
Crl. Appeal No. 101/2022
CNR No. DLNT01-006125-2022
Md. Ijhar Ansari
S/o Md. Abdul Karim
R/o H.No. A-225, Gali No. 9,
Wazirabad Gaon, Delhi. ....Appellant
VERSUS
State of NCT of Delhi ...Respondent
Date of institution : 13.07.2022
Arguments heard on : 13.09.2022
Date of pronouncement : 23.09.2022
ORDER
Aggrieved by the judgment dated 18.12.2021 and order on sentence dated 25.06.2022, the instant appeal is preferred on behalf of the appellant Mohd Izhar Ansari assailing both the judgment and order on sentence in which the appellant was convicted and sentenced U/s 279 IPC with fine of Rs. 500/- and in default of payment of fine, to undergo imprisonment for 15 days; one year for offence punishable U/s 304A IPC; fine of Rs. 500/- for the offence punishable U/s 337 IPC and in default of payment of fine, to undergo 15 days; compensation of Rs. 5000/- each to be paid to the victim/injured Brij Mohan and Poonam Pal and in default of payment of compensation, to undergo imprisonment for a period of 15 days. The appeal is hereby disposed of through this judgment.
CA No. 101/2022 Page 1 of 112. Concisely the facts against the backdrop of which the FIR No. 205/11 of PS Jahangir Puri emerged and culminated into chargesheet are that on 02.07.2011, a couple alongwith their mother/mother-in-law arrived at Delhi, Nizamuddin Railway Station from Jhansi and took an autorickshaw bearing registration No. DL1RK 9713 to their residence at Bhajan Pura, Delhi at about 10/10:30 PM. When the said autorickshaw reached at the red light crossing near Nirankari Colony Delhi within the jurisdiction of PS Jahangir Puri, it got involved in an accident with another vehicle bearing registration No. DL1Z- 2661. The passengers of autorickshaw were severely injured and unfortunately one of the injured, i.e. mother-in-law of Brij Mohan expired. Interestingly, the matter was reported to the police by the autorickshaw driver, who ultimately has been charge sheeted in the instant case, i.e. Mohd Izhar Ansari. It was his statement on the basis of which the FIR was registered. However, during the investigation, it was found by the investigating agency that it was the complainant Mohd Izhar Ansari who was driving the vehicle in a rash and negligent manner, which has led to the accident and the consequent injuries to Brij Mohan, Poonam Pal and whereas Smt. Nirmala ultimately succumbed the injuries sustained by her in the accident and died.
3. Since the investigation in the matter led to the arrest of the initial complaint, so after the needful of the investigation making sure that the accused is the person responsible for causing the accident, the chargesheet was filed against the appellant herein for the offences punishable U/s 279/337/304A IPC, which, through the trial, after examination of 12 PWs and 3 CA No. 101/2022 Page 2 of 11 DWs resulted into the conviction of the appellant as stated hereinbefore.
4. The appellant has come up with the plea that he has been falsely implicated in this case in order to claim insurance from the Motor Accident Tribunal, as can be very well seen that it was his complaint which had resulted into an FIR. It is asserted on behalf of the appellant that the testimony on record is full of contradictions and inconsistencies, therefore, the same cannot be read against him to record a conviction. The evidence of prosecution, it is further asserted on behalf of the appellant, has been wrongly accepted, whereas the evidence led by the appellant has not been given due weightage and credence and has been rejected. The charge/notice is also defective inasmuch as the name of Ms. Poonam Pal as the injured is not mentioned, therefore, in such circumstances, the appellant cannot be held responsible for the lapses on the part of the investigation. The police, despite the registration number of the other vehicle involved in the accident being available, cannot trace it. According to the appellant, it was the offending vehicle, i.e. Sumo, Tavera or Qualis bearing registration No. DL1Z-2661, which caused the accident.
5. Ld Chief Prosecutor on the other hand submitted that overwhelming evidence is there against the appellant as to the manner of appellant how he was driving the autorickshaw, and who is to be blamed for rash and negligent driving. According to the prosecution's case and has been established by the evidence of the witnesses, happens to be none other than the appellant CA No. 101/2022 Page 3 of 11 herein. Therefore, the trial court judgment is in consonance with the facts, evidence and the law on the subject. Ld. counsel for the appellant has not pointed out as to what defects are there in the investigation except for pointing out that the IO could not trace the vehicle, i.e. vehicle bearing registration No. DL1Z-2661.
6. The course of investigation, it was stated by the appellant, altogether turned around and has been taken in altogether opposite direction. To elaborate and emphasis his argument, it is pointed out by the counsel for the appellant that it was the appellant on whose statement Ex.PW8/A, the FIR came into existence, but for the reasons best known to the investigating agency, the appellant himself has been charge sheeted, whereas the investigating agency could not even locate the offending/ other vehicle involved in the accident.
7. So far as the defective investigation is concerned, it has been held in various pronouncements that the defect in the investigation either deliberate or unintentional, should not be construed against the victim as long as there are evidences to support the case of the prosecution.
8. In the context of defective investigation, reference can be made to the judgments in regard to defective investigation, Court in Dayal Singh Vs. State of Uttaranchal 2012 VII AD (S.C.) 541 = (2012) 8 SCC 263 while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under; (SCC pp. 280-83, paras 27-36) CA No. 101/2022 Page 4 of 11 Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P., (1972) 3 SCC 613, this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, 2004 IV AD (S.C.) 365 = (2004) 3 SCC 654, held: (SCC p. 657, para 5) 'In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.'
9. Reference can also be made to Paras Yadav Vs. State of Bihar, (1999) 2 SCC 126, State of Karnataka Vs. K. Yarappa Reddy, (1999) 8 SCC 715, Ram Bali Vs. State of U.P. 2004 VI AD (S.C.) 49 = (2004) 10 SCC 598 and Karnel Singh v. State of M.P., (1995) 5 SCC 518.
10. The contention qua the flaws in investigation fades away in view of the clear and categorical statements of injured couple. The manner of driving by the appellant was protested by the injured persons but appellant continued with his reckless driving. In such circumstances, even if the other vehicle could not be traced which should have been though, but that in itself does not render the evidence to naught or efface it. The argument of Ld. Counsel for appellant is, thus, brushed aside.
11. Another leg of the arguments on behalf of the appellant revolves around inconsistencies and contradictions in the testimony in the case of the prosecution. Human memory has its CA No. 101/2022 Page 5 of 11 own limitations and every individual has his own way of seeing, perceiving, comprehending and narrating a particular event. The stamp of individual can be there in respect of every event. But it is also equally correct that the factual aspect remains unaltered in the narrative of the persons, the manner, style and interference based upon individual perceptions may vary, a bit, but the factual aspect, however, remains intact. How much importance a person attaches to a particular event for a person has a direct relation with the memory. The important events are etched into the memory of individuals whereas the routine and unimportant events may get erased over a period of time. Therefore, every person has his own memory bank where an event may be very important for one person and for the other person, it may have a very insignificant place and events would be accordingly recorded in his memory. When it becomes to narrate that particular event, the narrative may get some change if there is a considerable gap between two narrations. Here again, the essence would remain there, may be in different words and in different manner and in different chronological order. The deposition of the witnesses is to be appreciated while keeping the aforesaid aspects in mind and the inconsistencies, contradictions and variations are to be viewed and appreciated accordingly. Variance in the testimony is bound to be there and the same fact may have a different narrative from different persons, for instance, a person standing on the east side of the particular object and one standing on the west side of that particular object, will talk about that very object accordingly that it was on the west side for the former whereas latter would say the object was towards his east. Essentially, both are talking about that very CA No. 101/2022 Page 6 of 11 object but their narrative may appear different. It does not mean that there are inconsistencies, discrepancies and contradictions in the narrative.
12. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in its entirety. Therefore, unless irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the root of the matter, and shake the basic version of the prosecution witness. Thus, the court must read the evidence of a witness as a whole, and consider the case in light of the entirety of the circumstances, ignoring the minor discrepancies with respect to trivial matters, which do not affect the core of the case of the prosecution. Reference can be made to State of UP v. M.K. Anthony, AIR 1985 SC 48; State rep. by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; and Vijay @ Chinee v. State of MP, (2010) 8 SCC 191.
CA No. 101/2022 Page 7 of 1113. Testimony of the victim has primacy and is a potent evidence which cannot be ignored or taken lightly on flimsy grounds. Various discrepancies/ contradictions/ improvements highlighted by the learned counsel are not material to discredit the testimony of a victim.
14. Reference in this context can be made to the Judgment B.K.Channappa v. State of Karnataka AIR 2007 SC 432, wherein their Lordship has observed that:
"The evidence on record further shows that the injured witnesses had been subjected to searching lengthy cross- examination and in such type of cross-examination, some improvements, contradictions, and omissions are bound to occur in their evidence, which cannot be treated very serious, vital and significant so as to disbelieve and discard the substratum of the prosecution case."
15. In the instant case, learned Counsel for the appellant could not point out any such glaring inconsistencies or discrepancies which may render the testimony of the witnesses unbelievable or doubtful. A slip here and there is normal and so long as the soul of the narration has been kept alive and intact, the minor contradictions, inconsistencies or for that matter variations in the deposition would not affect the narration.
16. Another aspect which has been highlighted by the learned Counsel for the appellant is that the police has registered the FIR on the statement of the complainant who happens to be the appellant herein and subsequently, implicated him in this case as the offending vehicle could not be located. This would have been acceptable if there were no witnesses to the incident but CA No. 101/2022 Page 8 of 11 here we have not one but two witnesses to the accident and for that matter, qua the manner of driving of the appellant too.
17. The prosecution has examined Sh. Brij Bhushan as PW2 and his wife Smt. Poonam Pal as PW3 and they have deposed about the accident and the manner of driving of the vehicle involved and have blamed the appellant and his driving. They have further emphasized about the fact that the manner of driving of appellant was very reckless, careless and negligent while coming from Nizamuddin Railway Station to the place of incident. The appellant, on the way, was cautioned more than once to drive in a proper manner, but seemingly, the appellant did not bother and continue driving in the same manner, which was rash and negligent resulting into the accident in which mother of PW3 lost her life and two other persons i.e. Brijbhusan and his wife Poonam Pal sustained injuries.
18. The testimony of the witnesses i.e. PW2 and PW3 is reliable as it could not be dislodged by the cross examinations conducted on behalf of the appellant. It has also come in the evidence that the appellant had jumped the traffic signal and in that process, hit against another vehicle after that the TSR turned turtle resulting into the death of a human being and injuries to two other persons. Jumping the red light in itself is an act of rashness and high speed compounded the situation. It is not that high speed is equal to rash and negligent driving but then the situation in which a particular speed is adopted, makes it rash and negligent.
CA No. 101/2022 Page 9 of 1119. Rashness has been defined as doing some act in such a manner which was not appropriate and oblivious of the consequences and negligence is defined as an act which has been done without following or taking appropriate precautions suited and required in a particular situation.
20. When the testimony of the witnesses is tested on the aforesaid parameters, it appears that the appellant was in a rush and hurry, oblivious of the consequences of driving at a fast speed throwing all the precautions to wind by jumping red lights as has come in the testimony of the witnesses. Evidently, the TSR driver, the appellant herein, is to be blamed for accident, injuries and death.
21. As regards the plea of insurance claim is concerned, the victims could have expected it, in any case, whether appellant is held responsible or the other vehicle. Then it does not seem to be such a fact which would persuade someone to tell lies especially when the accident took place on 02.07.2011 and the victims Poonam Pal, and Brij Mohan were under treatment till 03.08.2011. The statements of both victims, above stated, were recorded on 17.07.2011. The mental, physical and psychological condition of the injured persons can be very well visualized especially when the mother of Poonam Pal died in that very accident, who was mother-in-law of Brij Mohan. Evidently, the false implication or compensation or insurance claim would not be a consideration with the victims during that traumatic phase. They named the appellant as the person responsible for accident, injuries and death. As such, the contention that the appellant has CA No. 101/2022 Page 10 of 11 been falsely implicated in this case to claim insurance, does not got down well and cannot be accepted.
22. In these circumstances, findings against the appellant by the learned trial court seem to be in consonance with the facts, evidence and law on the subject. As such, in these circumstances, the appellant fails to carve out a case in his favour warranting any interference into the impugned Judgment. Thus, in view of the totality of the facts and circumstances, the impugned Judgment dated 08.12.2021 has no flaw and, therefore, no interference is required and so is the position with regard to the sentence awarded to the appellant and in any case no argument has been put forth with regard to the sentence awarded.
23. Accordingly, in view of the discussions herein above, the present appeal stands dismissed. Trial court record be sent back alongwith copy of this Judgment. Appellant be taken into custody and sent to Jail to serve his sentence. Appeal file be consigned to the Record Room.
Announced in the open Court today i.e. 23rd September, 2022 (Vimal Kumar Yadav) Principal District & Sessions Judge North District, Rohini Courts, Delhi CA No. 101/2022 Page 11 of 11