Delhi District Court
State vs Jai Prakash on 23 January, 2024
IN THE COURT OF MS. APARNA SWAMI, ASJ-07,
NEW DELHI DISTRICT, PATIALA HOUSE COURT, NEW
DELHI
STATE Vs. JAI PRAKASH
Unique Case No. DLND01-006865-2019
Sessions Case No. : 197/2019
FIR No. : 346/2016
Under Section : 308/279 IPC
Police Station : Vasant Kunj South
a) Name of the Complainant : Sukhbir
S/o Sh. Bholu Ram
b) Name, Parentage & address of
accused : Jai Prakash
S/o Sh. Paras Nath
R/o D-122, Hari
Enclave,
Block A to D, Kirari
Suleman, Sultanpuri,
New Delhi.
c) Offences complained of : Section 279 and 308
Indian Penal Code.
d) The plea of the accused persons : Pleaded not guilty
and claimed trial.
Date of commission of offence 02.05.2016
Date of institution of case 19.09.2018
Date of committal to Sessions Court 09.04.2019
Date on which judgment is reserved 15.01.2024
Date of Judgment 23.01.2024
Decision of Judgment Accused Jai Prakash
stands convicted.
Digitally signed
by Aparna
Aparna Swami
FIR No. 346/2016 Swami Date:
2024.01.23
PS Vasant Kunj South 17:11:38 +0200
U/Sec. 279/308 IPC State Vs. Jai Prakash Page 1/ 19
FACTUAL BACKGROUND
1. Briefly stated, accused Jai Prakash have faced trial for commission of the offence punishable under Section 279 and 308 of Indian Penal Code (hereinafter to be referred as 'IPC'). It is alleged against the accused that on 02.05.2016 between 05:45 to 06:00 pm at NH-8 road, while going towards Gurgaon to Delhi near Shiv Murti, accused Jai Prakash was found driving a bus bearing registration no. DL1P-C-5937 in a rash and negligent manner endangering human life and safety of others. While driving the bus in the aforesaid manner, accused hit one Innova car bearing no. HR55-U-3325 of the complainant Sukhbir, this event led to an altercation between the complainant and accused Jai Prakash. It is further alleged that accused had caused grievous injuries on to the body of the complainant with an iron rod.
2. On the aforesaid allegations, the investigation in the present matter was carried out and after completion of the investigation, charge-sheet was filed in the court. The cognizance of the offence was taken. Accused Jai Prakash was summoned. On 09.04.2019, after compliance of Section 207 of Code of Criminal Procedure (hereinafter to be referred as 'CrPC'), Ld. Magistrate committed the case to the Court of Sessions.
3. On 20.09.2019, the charge was framed against accused Jai Prakash for the offences punishable under section 308 and 279 of IPC. The charge was read over to the accused, to which he pleaded not guilty and claimed trial.
Digitally signed Aparna by Aparna Swami FIR No. 346/2016 Swami Date: 2024.01.23 17:11:46 +0200 PS Vasant Kunj South U/Sec. 279/308 IPC State Vs. Jai Prakash Page 2/ 19
4. To prove its case, prosecution has examined 08 witnesses in all.
PW-1 Daya Ram He got the vehicle bearing registration no. DL-1PC-5973 released on superdari.
PW-2 Sukhbir He is the complainant/ injured in the present case and deposed regarding the incident.
PW-3 Virender Singh He is the eye witness of the incident.
He deposed regarding the incident.
PW-4 Anoop Kumar He is medical witness, who deposed Kaushik with regard to MLCs of the injured and the accused.
PW-5 Arvinder Singh He is the mechanical expert and conducted the mechanical inspection of vehicles bearing nos. HR 55U 3325 and DL 1PC 5937.
PW-6 HC Sunil Kumar MHC(M) in the present case, who deposed with regard to the case property.
PW-7 ASI Prabhjeet He is the Investigating Officer in the Singh present case.
PW-8 Sushil Kumar He is formal witness, who deposed with regard to DD entry with IO.
4.1. PW-1 Daya Ram is the witness, who obtained the bus bearing no. DL1P-C-5937 of Rao Tourist Services Pvt. Ltd. on superdari from the court after filing superdarinama in the sum of Rs.10 lakhs. He exhibited the superdarinama as Ex.PW1/A. This witness was not cross-examined by the Ld. LAC for the accused.
4.2. PW-2 Sukhbir is the complainant/ injured in the present case. He narrated the entire incident and identified the accused as well as the weapon of the offence. This witness was Digitally signed by Aparna Aparna Swami FIR No. 346/2016 Swami Date:
2024.01.23 PS Vasant Kunj South 17:11:59 +0200 U/Sec. 279/308 IPC State Vs. Jai Prakash Page 3/ 19 cross-examined in detail by the Ld. LAC for the accused.
4.3. PW-3 Virender Singh, he is one of the eye witnesses of the incident. This witness also narrated the incident and have identified the weapon of the offence. This witness was cross- examined by Ld. LAC for the accused.
4.4. PW-4 Anoop Kumar Kaushik he is Manager (MRD) cum Liasion Officer, Indian Spinal Injuries Centre, Vasant Kunj, New Delhi. This witness deposed on behalf of Dr. Shefali and brought the record of MLC bearing no. 6587/16 of injured Sukhbir and MLC no. 6586/16 of accused Jai Prakash. On the basis of his evidence, the MLC of injured/ complainant Sukhbir was exhibited as Ex.PW4/A and of accused was exhibited as Ex.PW4/B. This witness was not cross-examined by Ld. LAC for the accused.
4.5. PW-5 Arvinder Singh, he is the mechanical expert, who conducted the inspection of the two vehicles i.e. Toyota Innova car bearing no. HR 55U 3325 and Tata Bus bearing no.
DL 1PC 5937. On the basis of the evidence of this witness, the mechanical report of two aforesaid vehicles were exhibited as Ex.PW5/A and Ex.PW5/B respectively. This witness was cross- examined by the Ld. LAC for the accused.
4.6. PW-6 HC Sunil Kumar brought the original MHC(M) register. As per which, IO/ ASI Prabhjeet Singh deposited one sealed pullanda containing rod and one white colour shirt having blood stains in the malkhana. This witness further deposed that ASI Prabhjeet Singh also deposited two vehicles i.e. Toyota Innova car bearing no. HR 55U 3325 and one Tata bus bearing no. DL 1PC 5937. The entry with respect to the Digitally signed Aparna by Aparna Swami FIR No. 346/2016 PS Vasant Kunj South Swami Date: 2024.01.23 17:12:06 +0200 U/Sec. 279/308 IPC State Vs. Jai Prakash Page 4/ 19 aforesaid deposition, was exhibited as Ex.PW6/A. This witness was cross-examined by Ld. LAC for the accused.
4.7. PW-7 ASI Prabhjeet Singh is the Investigating Officer in the present case, who deposed with regard to the details of investigation in the present case.
4.8. PW-8 Sushil Kumar was the Constable posted at Police Station Vasant Kunj South at the time of the incident. This witness accompanied PW-7 ASI Prabhjeet Singh. PW-7 and PW- 8 both were cross-examined by the Ld. LAC for the accused.
5. After examination of the above witnesses, the prosecution evidence was closed. On 29.10.2022, statement of accused under Section 313 of CrPC was recorded. In the statement, accused submitted that complainant/ victim Sukhbir was driving his car in a rash manner, he overtook the bus of the accused from right side and went to the left side. It is also deposed that complainant again turned his vehicle towards the bus of the accused, due to which the bus touched the vehicle of the complainant. Thereafter, it is alleged that the accused stopped his vehicle and asked the complainant/ victim Sukhbir to drive his vehicle properly. The accused also submitted in his statement u/s 313 CrPC, that the present case has been filed by the complainant to falsely implicate the accused. Accused Jai Prakash also submitted that a complaint case was filed by him, but the same was dismissed by the Ld. Magistrate.
6. As accused Jai Prakash opted to lead evidence in his defence, therefore on 16.01.2023, Ramesh Chawla was examined Digitally signed by Aparna Aparna Swami FIR No. 346/2016 Swami Date:
2024.01.23 PS Vasant Kunj South 17:12:11 +0200 U/Sec. 279/308 IPC State Vs. Jai Prakash Page 5/ 19 as DW-1. DW-1 Ramesh Chawla submitted that on the date of the incident, he along with his 32 to 35 colleagues were coming from Gurgaon towards Tilak Nagar in Delhi in bus coach no. G4B, which was driven by accused Jai Prakash. He further deposed that at 06:00-06:15 pm near Rajokri Flyover, the bus was driven in its own lane. He further deposed that a cab suddenly came in front of the bus, as the cab driver was driving very slowly, accused Jai Prakash tried to take over the cab, but the cab driver came in the way and overtook the bus. On this, accused Jai Prakash got furious, he tried to overtake the cab by constantly honking. Thereafter, cab driver got agitated, he overtook the bus and parked his vehicle in front of the bus. After that, the cab driver came outside the cab and started abusing the accused. This led to involvement of accused Jai Prakash and the cab driver/ complainant in a heated argument. Then, cab driver/complainant first slapped the accused Jai Prakash on his face. On seeing this altercation, 4-5 colleagues of this witness came out of the coach/ bus and tried to intervene. By this intervention, the situation got pacified and this witness came back in the bus. This witness has further deposed that immediately thereafter again the accused and the complainant started fighting with each other with fist and blows. By that time, this witness came back, the fight became grave. This witness also deposed that by that time cab driver i.e. complainant had not sustained injuries, however, the accused Jai Prakash had bruises on his head. This witness was cross-examined by the Ld. Substitute Addl. PP for State.
Digitally
signed by
Aparna Aparna Swami
Date:
Swami 2024.01.23
17:12:18
FIR No. 346/2016 +0200
PS Vasant Kunj South
U/Sec. 279/308 IPC State Vs. Jai Prakash Page 6/ 19
7. After the completion of the defence evidence, matter was put for final arguments.
8. I have heard the final arguments.
ARGUMENTS ADDRESSED BY BOTH THE PARTIES
9. Ld. Additional Public Prosecutor has submitted that the testimony of PW-2 Sukhbir i.e. the complainant in the present matter, is very clear. This witness has narrated the facts/ details of the events on the date of the incident and have identified the accused as well as the weapon of offence. The evidence of this witness i.e. PW-2 has been corroborated by the testimony of PW-
3, who have also given the same version of the incident. Further, the testimony of these witnesses have been corroborated by the medical evidence on record, wherein the nature of injuries have come out to be 'grievous' in nature. Further, by the mechanical inspection report Ex.PW5/A and Ex.PW5/B during the testimony of PW-5, the fact of accident between two vehicles has been proved. Ld. Addl. PP for State has further emphasized that the testimony of police witnesses have given strength to the evidence of PW-2 i.e. complainant and the details of the investigation, which was carried out in the present matter. Ld. Addl. PP for State also submitted that the defence witness brought by the accused, do not aspire confidence, as it has come out in the cross- examination of DW-1 Ramesh Chawla that after coming back in the bus, he was not aware as to what happened between the accused and complainant, thus this witness has not seen the event and have failed to give details of the actual happening of the incident.
Aparna Digitally signed
by Aparna Swami
FIR No. 346/2016 Swami Date: 2024.01.23
17:12:24 +0200
PS Vasant Kunj South
U/Sec. 279/308 IPC State Vs. Jai Prakash Page 7/ 19
10. Per contra, Ld. Legal Aid Counsel (LAC) for the accused has argued that there are various infirmities and major contradictions in the version of the prosecution, which entitles the accused to the benefit of doubt in the present matter. It is submitted by Ld. LAC for the accused that testimony of PW-2 Sukhbir (who was driver of the cab) and PW-3 (who was the passenger of the cab), are in contradiction to the testimony of PW-7 ASI Prabhjeet Singh, who is the Investigating Officer in the present matter. PW-2 Sukhbir stated in his examination-in- chief that he called the police by dialling 100 number, although PW-3 Virender Singh in his examination-in-chief stated that he made call on 100 number. It is also averred by Ld. LAC for the accused that PW-2 Sukhbir stated that one staff member was present in the car, however PW-3 submitted that his 4-5 colleagues were sitting in the cab at the time of incident. Further, it is submitted by Ld. LAC for accused that the testimony of PW- 3 Virender Singh is not reliable, as it has come out in the examination-in-chief of PW-3 that when the altercation took place behind the cab, he kept on sitting in the cab and had not witnessed anything. Thus, this witness did not see the incident, hence, cannot be called as an eye witness. It is further argued by Ld. LAC for the accused that as per statement of PW-7 i.e. Investigating Officer during investigation, it came to his knowledge that public had beaten the accused, however prosecution has failed to add any public witness in the list of the witnesses. Thus, proper justification with regard to injuries sustained by accused has not come on record. It is also argued by Ld. LAC for accused that as per statement recorded u/s 313 FIR No. 346/2016 Aparna Digitally signed by Aparna Swami PS Vasant Kunj South Swami Date: 2024.01.23 17:12:31 +0200 U/Sec. 279/308 IPC State Vs. Jai Prakash Page 8/ 19 CrPC, it is categorically mentioned by the accused that complainant Sukhbir was driving in a rash manner and overtook from right to left side of the bus. The accused was hit by PW-2 (complainant) with some sharp weapon and have also sustained injuries. This fact is corroborated by the MLC of the accused on record, which mentions that the injury sustained by accused Jai Prakash, was 'grievous' in nature. Further, Ld. LAC for the accused submitted that their version of the events is supported by the testimony of DW-1 Ramesh Chawla, who testified in the court that heated arguments took place between accused Jai Prakash and PW-2 Sukhbir (i.e. the complainant). This witness with the help of his colleague tried to pacify both the parties, but the conflict continued. Lastly, it is submitted by Ld. LAC for the accused that the testimony of PW-8 Sushil Kumar further casts doubt on the story of prosecution, as this witness resiled from his earlier statement and was cross-examined by the Ld. Addl. PP for State. Thus, Ld. LAC submitted that due to the above noted contradictions and lacunae, the benefit of doubt should be given to the accused.
ANALYSIS OF EVIDENCE AND OBSERVATION
11. In the present case, accused Jai Prakash was charged for the alleged commission of offence punishable under Section 279 IPC and 308 IPC. It is relevant here to first discuss Section 279 of IPC, which is reproduced as under:
279. Rash driving or riding on a public way.- 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 Digitally signed by Aparna Aparna Swami FIR No. 346/2016 Swami Date:
2024.01.23 17:12:38 +0200 PS Vasant Kunj South U/Sec. 279/308 IPC State Vs. Jai Prakash Page 9/ 19 to six months, or with fine which may extend to one thousand rupees, or with both.
The perusal of the testimony of PW-2 Sukhbir i.e. victim/ complainant shows that nowhere this witness have talked about the rash and negligent driving by the accused. PW-2 Sukhbir in his testimony only mentions that accused was driving the offending bus bearing no. DL1P-C-5937 of Rao Travels, he overtook his vehicle from the right side and hit the same in the middle of the right side of car of PW-2. This overtaking, as mentioned by PW-2, nowhere talks about driving of the rash and negligent manner. Even testimony of PW-3 Virender Singh only talks about the overtaking done by the accused of his bus and do not mention any specific or categorical incident of rash and negligent driving. The other witnesses on record, who were examined, were the witnesses of the investigation, who did not see the incident, but only carried out the investigation. Thus, this court observes that from the evidence on record, the prosecution has failed to prove the ingredients of Section 279 IPC and thus, accused Jai Prakash stands acquitted of the offence punishable under Section 279 IPC.
12. Now, coming to the next offence for which accused Jai Prakash is charged with, which is punishable under Section 308 IPC. Here, this court deems it appropriate to reproduce Section 308 IPC, which reads as under:
308. Attempt to commit culpable homicide.- Whoever does any act with such intention or knowledge and under such Digitally signed Aparna by Aparna Swami FIR No. 346/2016 Swami Date: 2024.01.23 17:12:43 +0200 PS Vasant Kunj South U/Sec. 279/308 IPC State Vs. Jai Prakash Page 10/ 19 circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
A comprehensive reading of the provision reveals, what has been stated by the Hon'ble Supreme Court of India in the case of Sunil Kumar Vs. State of NCT of Delhi and Ors. 1998 (8) SCC 557, as under:
"................ Offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308 IPC."
13. It is clear from the reading of this Section itself that to constitute an offence under Section 308 IPC, following conditions should be fulfilled:
a) Nature of the criminal act for attempt to commit culpable homicide-
The accused must have committed the act under the following circumstances:-
• That death might be caused if the act took effect and; • That the act must be capable of causing death in the natural and ordinary course of events;
In other words, the act should be of such a nature that if not prevented or intercepted- by extraneous circumstances outside of the offender's control- it would have ordinarily (and naturally) led to the death of the victim.
If the act was not of the above description, it is not a criminal act for the purpose of Section 308 IPC. Failing such act, a person could not be convicted of the offence of Attempt to commit culpable homicide.Digitally signed
Aparna by Aparna Swami FIR No. 346/2016 PS Vasant Kunj South Swami Date: 2024.01.23 17:12:49 +0200 U/Sec. 279/308 IPC State Vs. Jai Prakash Page 11/ 19
b) Nature of the criminal mind for committing culpable homicide-
The accused must have committed the above said criminal act while entertaining either of the following criminal minds (criminal mind for Attempt to commit Culpable Homicide is same as the criminal mind necessary for committing Culpable Homicide.
➢ The act must be done with the intention of causing death or; ➢ The act must be with the intention of causing such bodily injury as likely to cause death;
➢ The act must be done with knowledge that he is likely by such act to cause death.
c) Performance of criminal act accompanied by criminal mind i.e. execution of the offence-
The co-existence of the criminal mind and the criminal act should be proved by prosecution in order to establish guilt under section 308 IPC.
14. Therefore, Section 308 IPC does not make it mandatory that for an offence to be covered under the provision, hurt should have been caused by that person. The second part of Section 308 IPC further explains that in case hurt is caused to any person by an act covers within the purview of Section 308 IPC, the accused shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
15. Thus, as per the mandate of law, what is crucial while deciding a case involving charge under Section 308 IPC is that the act of accused should have been caused with an intention or knowledge and under such circumstance that in case said act caused death, he would be guilty of culpable homicide not amounting to murder.
Digitally signed by Aparna Aparna Swami
Swami Date:
2024.01.23
FIR No. 346/2016 17:13:25 +0200
PS Vasant Kunj South
U/Sec. 279/308 IPC State Vs. Jai Prakash Page 12/ 19
This ratio has been approved by the Hon'ble Supreme Court of India in the case of Narender Kumar Oberoi Vs. State, 2015 SCC Online 7864, wherein the Apex Court held as under:
"........... What the court is to see whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentions in Section 308 IPC. It depends upon the facts and circumstances of each case, where the accused had requisite intention or knowledge."
16. In the present case, it has come out in the evidence of PW- 2 Sukhbir (complainant/ victim) that he was hit by an iron rod on his head. The causing of injuries with an iron rod on a head of a person itself shows knowledge on the part of the accused that such injury is so dangerous that it can cause death of a person i.e. it would have amounted to culpable homicide not amounting to murder. Further, the medical evidence on record also corroborates with the testimony of PW-2 complainant/ injured, wherein the MLC of PW-2 Sukhbir, it is observed that the injury is 'grievous' in nature.
17. The accused in order to attract doubt to the story of prosecution, in his statement recorded under Section 313 CrPC, submitted that in fact complainant/ injured was driving the vehicle rashly; he overtook from the right side and went to the left side. It is also submitted by the accused in his statement under Section 313 CrPC, that he also filed a complaint before the Ld. Magistrate against the complainant/ injured Sukhbir, but the same was dismissed. It is further submitted by the accused that he has been falsely implicated in the present case.
Aparna Digitally signed
by Aparna Swami
FIR No. 346/2016 Swami Date: 2024.01.23
17:13:31 +0200
PS Vasant Kunj South
U/Sec. 279/308 IPC State Vs. Jai Prakash Page 13/ 19
18. To support his version, the accused in his defence examined DW-1 Ramesh Chawla. The perusal of the testimony of DW-1 Ramesh Chawla shows that there was some altercation between the accused and complainant, but in the cross- examination of this witness, he submitted that he was sitting on the 3rd or 4th seat of the bus, which was driven by the accused and that he did not see the happening of any incident.
19. Now coming to the contention of Ld. LAC for accused that as per the testimony of PW-2 Sukhbir, PW-2 deposed that he called the police, but PW-3 Virender Singh deposed that he called the police. This contradiction casts serious doubt on the story of the prosecution. This contention of Ld. LAC for accused is found to be baseless, as due to lapse of time, there may be certain infirmities or inconsistency in the testimony of the witnesses, however this inconsistency is not found to be fatal to the case of the prosecution. In this regard, reference is placed on the judgment of Hon'ble Supreme Court of India in the case of Mohar &Anr. v. State of U.P., (2002) 7 SCC 606, wherein it was observed as under:
"11. The testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and has seen the occurrence by himself. Convincing evidence would be required to discredit an injured witness. Similarly, every discrepancy in the statement of a witness cannot be treated as fatal. A discrepancy which does not affect the prosecution case materially cannot create any infirmity. In the instant case the discrepancy in the name of PW 4 appearing in the FIR and the cross examination of PW 1 has been amply clarified. In cross examination PW 1 had clarified that his brother Ram Awadh had three sons: (1) Jagdish, PW 4, (2) Jagarnath, and (3) Suresh. This witness, however, stated that Jagarjit had only one name. PW 2 Vibhuti, however,stated that Aparna Digitally signed by Aparna Swami FIR No. 346/2016 PS Vasant Kunj South Swami Date: 2024.01.23 17:13:37 +0200 U/Sec. 279/308 IPC State Vs. Jai Prakash Page 14/ 19 at the time of occurrence the son of Ram Awadh, Jagjit @ Jagarjit was milching a cow and he was also called as Jagdish. Balli (PW 3) mentioned his name as Jagjit and Jagdish. PW 4 also gave his name as Jagdish."
20. Also, the Hon'ble Apex Court in the case of State of Uttar Pradesh v. Naresh & Ors., (2011) 4 SCC 324, observed that :
"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab[(2009) 9 SCC 719 : (2010) 1 SCC (Cri)107], Balraje v.State of Maharashtra[(2010) 6 SCC 673 :(2010) 3 SCC (Cri) 211] and Abdul Sayeed v. State of M.P.[(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] )... ... ... ...... ... ... ...
30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court,such evidence cannot be safe to rely upon. However,minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."[Ed.: As observed in Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p. 192, para 9.] Therefore, mere marginal variations in the Digitally signed Aparna bySwami Aparna FIR No. 346/2016 PS Vasant Kunj South Swami Date: 2024.01.23 17:13:43 +0200 U/Sec. 279/308 IPC State Vs. Jai Prakash Page 15/ 19 statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide State v. Saravanan[(2008) 17 SCC 587 :(2010) 4 SCC (Cri) 580 : AIR 2009 SC152], Arumugam v. State[(2008) 15 SCC 590 : (2009) 3SCC (Cri) 1130 : AIR 2009 SC 331], Mahendra Pratap Singh v. State of U.P.[(2009) 11 SCC 334 : (2009) 3 SCC(Cri) 1352] and Sunil Kumar Sambhudayal Gupta(Dr.) v. State of Maharashtra[(2010) 13 SCC 657 : JT(2010) 12 SC 287] ."
21. Ld. LAC for accused further argued that PW-3 Virender Singh, has deposed in the court that he did not see the altercation, thus he is not eye witness of the incident. This court is in agreement with this argument of Ld. LAC for accused, but the fact that this witness establishes presence of the vehicles on the date and time of the incident and also establishes that some altercation took place between the accused and complainant, gives strength to the testimony of PW-2 Sukhbir (complainant/ injured) and thus, testimony of PW-3 Virender Singh is considered to be substantial piece of evidence, which cannot be ignored.
22. It is also contended by Ld. LAC for accused that as per Investigating Officer i.e. PW-7 ASI Prabhjeet Singh, during the investigation, he came to know that public persons have beaten the accused, but in the present case no public person was added by the prosecution. This further casts doubt on the story of the prosecution.
It is true that no public witnesses is added in the present case, but the fact that public persons do not wish to be dragged Digitally signed Aparna by Aparna Swami FIR No. 346/2016 Swami Date: 2024.01.23 17:13:49 +0200 PS Vasant Kunj South U/Sec. 279/308 IPC State Vs. Jai Prakash Page 16/ 19 into controversy cannot be ignored. There is general reluctance in the public to be cited as witnesses and people do not wish to be summoned by court and to render their testimonies before the court of law. Merely, because the said persons do not come forward, does not imply that the version of victims should be ignored or be deprived of due credit. Here, observation of the Hon'ble Supreme Court of India in the case of Appabhai Vs. State of Gujarat AIR 1988 SC 696, is relevant and reproduced as under:
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."
Moreover, if the accused is of the opinion that the said independent persons would have testified to the innocence of accused, the former could have examined the said independent persons as defence witnesses, which is not done in this case.
23. Ld. LAC for accused also basis his arguments on the statement of accused recorded under Section 313 CrPC and the Digitally signed Aparna by Aparna Swami FIR No. 346/2016 PS Vasant Kunj South Swami Date: 2024.01.23 17:13:54 +0200 U/Sec. 279/308 IPC State Vs. Jai Prakash Page 17/ 19 testimony of defence witness i.e. DW-1 Ramesh Chawla, establishing that an altercation took place between the accused and victim/ complainant. This court has perused the statement of accused under Section 313 CrPC and testimony of DW-1 Ramesh Chawla and have comes to the conclusion that even though, there is MLC on record with regard to injury of accused Jai Prakash, but no FIR was registered in this regard. It is also an admitted fact that the complaint under Section 202 CrPC of accused Jai Prakash was dismissed by the Ld. Magistrate.
24. Further, from the testimony of DW-1 Ramesh Chawla, it has come out during the cross-examination of this witness, that he did not see anything happening at the place of incident, but this witness also supported the story of the prosecution to the fact that there was quarrel between the accused and complainant/ injured PW-2 Sukhbir.
25. Thus, from the above discussion, it is observed by this court that the basic ingredients of Section 308 of IPC, which necessarily requires 'intention' or 'knowledge' and under such circumstances that in case the said act caused death, he would have been guilty of culpable homicide, is sufficiently proved in the present case. The testimony of PW-2 Sukhbir (complainant/ injured) is in corroboration of PW-3 Virender Singh, medical evidence of PW-4 Anoop Kumar Kaushik and also with the proceedings carried out after the incident, which is testified by PW-7 ASI Prabhjeet Singh clearly establishes the guilt of the accused Jai Prakash.
Digitally signed Aparna by Aparna Swami FIR No. 346/2016 Swami Date: 2024.01.23 17:14:00 +0200 PS Vasant Kunj South U/Sec. 279/308 IPC State Vs. Jai Prakash Page 18/ 19 CONCLUSION
26. In view of the above observations, accused Jai Prakash S/o Sh. Paras Nath, stands convicted for the offence punishable under Section 308 of Indian Penal Code.
Dictated & Announced in the open court
On 23.01.2024 Digitally signed
Aparna by Aparna
Swami
Swami Date: 2024.01.23
17:11:26 +0200
(Aparna Swami)
Additional Sessions Judge-07
NDD/PHC/New Delhi
23.01.2024
FIR No. 346/2016
PS Vasant Kunj South
U/Sec. 279/308 IPC State Vs. Jai Prakash Page 19/ 19