Delhi District Court
State vs . Arvind on 25 March, 2021
1
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 86/2013
U/s 279/337/338 IPC
PS: Jahangir Puri
State Vs. Arvind
Date of Institution of case: 16.09.2013
Date of Judgment reserved:24.03.2021
Date on which Judgment pronounced: 25.03.2021
JUDGMENT
Ubuntu Number : 5287162/16
Date of Commission : 17.03.2013
of offence
Name of the : Sh. Gulshan Kumar
complainant
Name and address of : Arvind S/o Sh. Om Hari
the accused R/o Village Rasulpur, Gatholi, District Etta,
Uttar Pradesh
Offence complained : 279/337/338 IPC
of
Plea of accused : Not guilty
Date of order : 25.03.2021
Final Order : Convicted
FIR No. 86/2013
State Vs. Arvind
2
BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is, that on 17.03.2013, at about 06.30 am, at Mukund Pur Red Light, Outer ring road, within the jurisdiction of PS Jahangir Puri, accused was found driving dumper bearing No. HR676758, in a rash and negligent manner, so as to endanger the human life and public safety of others and while driving the aforesaid vehicle in the aforesaid manner, he struck against Van/Car bearing No. HR69A0279, as a result of which grievous injuries were caused on the person of Harish Chand and simple injuries were caused on the person of Ramesh Kumari. According to prosecution, accused committed offences punishable under Section 279/337/338 of The Indian Penal Code, 1860. Thereafter, upon investigation, statements of witnesses were recorded. Thereafter, an FIR was registered against the accused.
Investigation
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [hereinafter to be referred as Cr.PC. for brevity]. The accused was arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C., was prepared against the above named accused and challan was presented in the Court.
FIR No. 86/20133. Copies of challan and relevant documents were supplied to the accused free of costs as envisaged under Section 207 of Cr.P.C. Charge
4. A prima facie case under Sections 279/337/338 IPC, was found to be made out against the accused. Notice was framed upon the accused accordingly. The accused pleaded not guilty and claimed the trial.
List of witnesses and documents proved
5. In order to prove its case, prosecution examined eleven witnesses.
Sl PW No. Name Document proved Ex. No.
No.
1. PW1 Gulshan Kumar His statement Ex.PW1/A
Arrest memo Ex.PW1/B
2. PW2 HC Raghunath FIR Ex.PW2/A
Rukka Ex.PW2/B
3. PW3 Smt. Sunita Nil
4. PW4 Dr. Shipra Rampal, MLC No.55959 Ex.PW4/A
5. PW5 Sh. Krishan Kumar Nil
6. PW6 Smt. Ramesh Kumari Nil
7. PW6A Ct. Parvinder Certificate Ex.PW6/A
8. PW7 Ct. Dinesh Original Rojnamcha Ex.PW7/A
9. PW7A Retd. SI Naresh His report Ex.PW7/A
10. PW8 Smt. Usha Nil
11 PW9 Ct. Jitender Singh Nil
FIR No. 86/2013
State Vs. Arvind
4
12 PW10 Retd. SI Lekh Raj Rukka Ex.PW10/A
Seizure Memo of Ex.PW10/B
relevant document &
of Van Ex.PW10/C
Notice U/s 133 MV Ex.PW10/D
Act
Seizure memo of Ex.PW10/E
permit, fitness &
certificate, Ex.PW10/I
insurance, DL, RC
Seizure memo of Ex.PW10/J
dumper and Van &
Ex.PW10/K
Personal Search Ex.PW10/L
Memo
Site Plan Ex.PW10/M
13 PW11 HC Bijender Singh Nil.
6. PW1 is Sh. Gulshan Kumar S/o Sh. Kherati Lal, R/o House No. 210, Mohalla Maashd Sonipat, Haryana. He is eye witness in the present case. He deposed, that on 17.03.2013, he alongwith his uncle and aunt namely Harish Chander and Ramesh Kumari respectively, his wife Sunita and his another aunt (Chachi) namely Usha, were going to attend the Radha Swamy Satsang at Chattharpur, Delhi in a van bearing no. HR 29A 0279, driven by their driver krishan. He further stated, that at about 06.30 am, when they reached Burari Red Light Chowk, the traffic light was red and their van was standing at the red light waiting for the traffic light to turn green. He further deposed, that accused came driving a FIR No. 86/2013 State Vs. Arvind 5 dumper truck (tipper) at a very high speed from the side of ISBT and by jumping the red light hit the same against the traffic light pole and thereafter hit their van while breaking the divider. The truck was over loaded at that time. He further deposed, that as a result of the impact, their van was totally damaged. He further deposed, that they had to take a right turn from that red light so their van was standing near to red light. He further deposed, that in the accident his uncle Harish and his aunt Ramesh Kumari suffered severe injuries. The right hand of his uncle got damaged permanently. His wife suffered minor injuries. His uncle and aunt were taken to BJRM Hospital by one of their relative, who was coming after them. He and accused went to BJRM Hospital in PCR Van. He further stated, that the truck hit their van from its right side and that is why his uncle and aunty suffered severe injuries. His statement was recorded by police, which is Ex.PW1/A, bearing his signature at point A. Accused was arrested in his presence vide arrest memo, which is Ex.PW1/B, bearing his signature at point A.
7. PW2 is HC Raghunath, No. 116, NW, PS Jahangir Puri. This witness proved the copy of FIR i.e. Ex.PW2/A and the endorsement of the original rukka which is Ex. PW2/B.
8. PW3 is Smt. Sunita W/o Sh. Gulshan Kumar, R/o House No. 210/2014, Mashad Mohall, Sonipat, Haryana. She is the eye FIR No. 86/2013 State Vs. Arvind 6 witness/injured in the present case. She deposed, that on 17.03.2013, she alongwith her husband, her unclein law namely Harish Chander, her aunt in law, Ramesh Kumari and her another aunt in law (Chachi) namely Usha were going to attend the Radha Swamy Satsang at Chattharpur, Delhi in a van bearing no. HR69A0279, driven by their driver krishan. At about 06.30 am, when they reached Burari Red Light Chowk, the traffic light was red and their van was standing at the red light waiting for traffic light to turn green. At that time, a dumper bearing no. HR....6758, came at a very high speed from the side of ISBT and by Jumping the red light, it hit against the traffic light pole and then hit their van while breaking the divider. The truck was over loaded with sand at that time. Driver of the truck was apprehended by the public persons. Their van was totally damaged, they had to take a right from that red light, so their van was standing at the red light. In the accident, her uncle Harish and her aunty Ramesh Kumari suffered severe injuries. The right hand of her uncle got damaged permanently. She further deposed, that she suffered minor injuries. Harish Chander and Ramesh Kumar were taken to BJRM hospital by one of their relatives, who was coming after them. The truck hit their van from its right side and that is why his uncle and aunty suffered severe injuries. Police officials reached the spot and driver of the offending vehicle was handed over to them. Both the vehicle were seized by the police.
This witness was cross examined by Ld. APP for the state after seeking permission from the court. During her crossexamination by the FIR No. 86/2013 State Vs. Arvind 7 Ld. APP, she stated that the complete registration number of truck was HR676758 and she correctly identified the accused.
9. PW4 is Dr. Shipra Rampal, Specialist Radiology, BJRM Hospital, Delhi. She deposed, that on 18.03.2013, she examined XRay plates No.547 of patient Harish Chand vide MLC No.55959. After examination, she noted fracture of humorous, radius and ulna of right side. She also noted fracture of right pubic bone. No bony injury was noted in visualized field of chest and no free air was seen under domes of diaphragm. The detailed report in this regard is Ex.PW4/A, bearing her signature at point A.
10. PW5 is Sh. Krishan Kumar S/o Sh. Dharam Pal, R/o House No. DS2474, Patel Nagar, Sonipat. (Driver of the impacted vehicle/ eye witness). He deposed, that on 17.03.2013, he was going to Chhatarpur to attend Satsang of Radhai Swami. On that day, he was working as driver of Maruti Van bearing No.HR 69A0279. At that time, there were five more persons in the car. Two of them being PW1 & PW6 i.e. Gulshan and Ramesh Kumari. He further deposed, that at about 06:30 AM, when they reached at Mukundpur Red Light, he stopped his van as traffic light was red. At that time, one truck/ tipper bearing No.HR676758, came from the side of ISBT, at high speed all of a sudden and while jumping red light, it hit his vehicle from front. His vehicle was damaged. He became hopeless FIR No. 86/2013 State Vs. Arvind 8 on seeing that accident. Driver of the truck was apprehended at the spot by Gulshan. Driver of the truck was handed over to the police officials and he was taken to PS from spot. Arrest memo of accused is already exhibited as Ex.PW1/B, bearing his signature at point B.
11. PW6 is Smt. Ramesh Kumari W/o Sh. Harish Chand, R/o House No. 210/2014, Mashad Mohalla, Sonipat, Haryana. She deposed, that on 17.03.2013, she alongwith her husband, her son Gulshan and his wife Sunita and one Gulshan were going to attend Satsang at Chhatapur in one Maruti Van, driven by Krishan Kumar. On that day, they had left home at about 5:30 AM. At about 06:30 AM, when they reached at Mukundpur Red Light, their car was standing at the traffic light as it was red. At that time, one overloaded truck/ tipper came from other side and while jumping the red light, came on their side and after hitting traffic light pole, hit their car. Traffic light pole fell on their car. She further deposed, that as a result of the accident, she had suffered injury on her face i.e. above her eyes. Her husband suffered grievous injuries in the accident. Her husband remained bedridden till his last breath due to accident. Driver of that truck was apprehended at the spot.
12. It is noteworthy to mention, that inadvertently two witnesses have been mentioned as PW6, hence for the sake of convenience and to avoid any confusion, next witness is being mentioned as PW6A.
FIR No. 86/2013State Vs. Arvind 9 PW6A is Ct. Parvinder, No. 11314DAP, IV Battalion, NPL, Delhi. He deposed, that on 17.03.2013, he was posted as Constable in Crime Team, North West District. On that day, on receipt of call from Control Room, he alongwith SI Naresh and Ct. Sandeep had gone to spot i.e. Outer Ring Road, Burai Chowk, Delhi, where he clicked eleven photographs and same which are already exhibited as Ex.P1 to Ex.P11. He also handed over CD to IO and CD is Ex.P12. At that time, his camera was working properly and no tempering was made with the photographs. He also executed the certificate regarding the genunity of the same on record which is Ex.PW6/A, bearing his signature at point A 13 PW7 is Ct. Dinesh, No. 2393/NW, PS Jahangir Puri, Delhi. He deposed, that on 17.03.2013, he was posted at Police Station Jahangir Puri as duty officer from 08:00 PM to 8:00 AM. On that day, at about 06:30 AM, he received a call from Control Room regarding accident, which he entered into a rojnamcha vide DD entry no.9B and informed ASI LekhI Rai through telephone. He brought the original rojnamcha containing original entry no.9B, true copy of the same is Ex.PW7/A (OSR).
14. It is noteworthy to state, that inadvertently two witnesses have been mentioned as PW7, hence for the sake of convenience and to avoid any confusion, next witness is being mentioned as PW7A.
PW7A is Retd. SI Naresh Pal S/o Katar Singh, R/o A54, Indira FIR No. 86/2013 State Vs. Arvind 10 Puri, Loni, Ghaziabad, Uttar Pradesh. He deposed, that on 17.03.2013, he was posted at Incharge Crime Team, NorthWest District. On receipt of call in his office vide DD No.9B, he along with Ct. Palvinder, photographer and Ct. Sandeep went to the spot i.e Mukundpur Red Light, where Ct. Palvinder took the photographs of the spot. Those photographs are already exhibited as Ex.PI to Ex.P1 1. He prepared his report, which is Ex.PW7/A and gave the same to the IO.
This witness was cross examined by the Ld. Counsel for the accused.
15. PW8 is Smt. Usha W/o Sh. Jagdish, R/o House No. 210/14, Mashad Mohalla, Sonipat, Haryana. She deposed, that on 17.03.2013, she alongwith Gulshan, Sunita, Ramesh and Harish were going to attend Satsang at Chhattarpur in maruti van driven by one Krishan Kumar. On that day, they left home at 05.30am and reached Mukundpur red light at about 06.30am. Traffic light was red, so they were waiting for the traffic light to turn green. At that time accused came while driving a truck/tipper from the side of ISBT and hit their van from front while jumping traffic light. Number of truck was HR676758. The number of van was HR69279. She further deposed, that she did not suffer injury but Ramesh and Harish suffered serious injuries. Police came to spot and took them to hospital. Accused was apprehended at the spot by public. Photographs of the spot were taken by police.
This witness was also cross examined by the Ld. Counsel for the FIR No. 86/2013 State Vs. Arvind 11 accused.
16. PW9 is Ct. Jitender Singh, No. 2435/OND, DCP Office, S.P. Badli, Delhi. He deposed, that on 17.03.2013, he was posted at PS Jahangir Puri as Ct. On that day, he was present at the PS and at about 7.30 am, he went to BJRM Hospital, as he was called to the hospital by the IO through the DO. When, he reached at the hospital, he met with the IO ASI Lekh Raj. IO handed over to him a rukka for registration of FIR. IO also instructed him to take the accused Arvind at Mukandpur Red Light, Outer Ring Road, Delhi. Accordingly, he along with the accused went to PS and after registration of FIR, he along with the accused went to Mukandpur Red Light Outer Ring Road, Delhi, where they met with the IO and he handed over the custody of accused, copy of FIR and original rukka to the IO. IO recorded his statement.
This witness was also cross examined by the Ld. Counsel for the accused.
17. PW10 is retired SI Lekh Raj, S/o Sh. Nathu Singh, R/o House no. A280, Gali no. 7, Mandoli Extension, Delhi93. He deposed, that on 17.03.2013, he was posted at PS Jahangirpuri as ASI. On that day, on receipt of DD no. 9B, already exhibited as Ex. PW7/A, he alongwith Ct. Bijender went to the spot i.e. Mukandpur red light, outer ring road, Jahangirpuri, Delhi, where they found one white colour van bearing registration no. HR69A0279, and one vehicle i.e. Dumper bearing FIR No. 86/2013 State Vs. Arvind 12 registration no. HR676758, in an accidental condition. On inquiry, he came to know that injured was shifted to BJRM hospital in a private vehicle. He went to the BJRM hospital after leaving the Ct. Bijender at the spot. In the hospital, two persons namely Harish Chand and Ramesh Kumari were found admitted. Eyewitness namely Gulshan Kumar was also found in the hospital and he handed over the custody of accused Arvind to him. Beat Ct. Jitender was also present in the hospital. He further deposed, that he handed over the custody of accused Arvind to Ct. Jitender. He collected the MLCs of injured persons from the concerned doctor. Doctor opined nature of injuries sustained by injured Ramesh Kumar as simple. He recorded the statement of eyewitness Gulshan Kumar, which is already exhibited as Ex. PW1/A, bearing his signature at point B. He prepared rukka which is Ex. PW10/A, bearing his signature at point A and handed over the same to Ct. Jitender for registration of FIR. Ct. Jitender and accused Arvind went to the police station and Ct. Jitender got registered the present case. Thereafter, he alongwith eyewitness Gulshan Kumar also went to the police station and collected the copy of FIR and original rukka from Ct. Jitender. After that, he alongwith eyewitness Gulshan Kumar and accused Arvind came back at the spot and met with Krishan Kumar (driver of van). He further deposed, that he collected the relevant documents of van from Krishan Kumar and seized the same vide memos Ex. PW10/B and Ex. PW10/C, bearing his signature at point A respectively.
FIR No. 86/2013State Vs. Arvind 13 He further deposed, that he called the registered owner of offending vehicle i.e. dumper through Arvind. He served notice u/s 133 M. V. Act to the registered owner namely Renu Magan. Notice Ex. PW10/D, bearing his signature at point A. Renu Magan replied that accused Arvind was driving the offending dumper at the time of accident. He seized the permit of dumper, fitness certificate of dumper, insurance of dumper, driving license of accused Arvind and registration certificate of dumper vide memos Ex. PW10/E to Ex. PW10/I, bearing his signature at point A respectively. He further deposed, that he also seized the above mentioned dumper and above mentioned van vide memos exhibit as Ex. PW10/J and Ex. PW/K, bearing his signature at point A respectively. He arrested the accused Arvind at the instance of Gulshan vide memo already exhibited as Ex. PW1/B, bearing his signature at point C. He also personally searched the accused vide memo Ex. PW10/L, bearing his signature at point A. He also prepared the site plan at the instance of Gulshan which is Ex. PW10/M, bearing his signature at point A. Thereafter, he alongwith accused and case property came back to the PS. He deposited the case property i.e. vehicles to the MHC(M). Accused was put into the lockup as he could not produce the sound surety. He recorded the statement of witnesses and injured persons. During investigation, crime team was called at the spot for inspection of spot.
He further deposed, that next day, accused Arvind was released on police bail on production of sound surety. He got conducted the mechanical inspection of the above mentioned vehicles through FIR No. 86/2013 State Vs. Arvind 14 mechanical expert namely Sh. Devender Kumar. The detailed report of mechanical expert are already Ex. D3 and D4, bearing his signatures at point A. After completion of investigation, he prepared chargesheet and filed the same in the Court for trial.
This witness was also cross examined by the Ld. Counsel for the accused.
18. PW11 is HC Bijender Singh, No. 540/RD, PS Kanjhawla. He deposed, that on 17.03.2013, he was posted at PS Jahangirpuri as Constable. On that day, on receipt of DD no. 9B to IO, already exhibited as Ex. PW7/A, he alongwith IO ASI Lekh Raj went to the spot i.e. Mukandpur red light, outer ring road, Jahangirpuri, Delhi, where they found one white colour van bearing registration no. HR69A0279, and one vehicle i.e. Dumper bearing registration no. HR676758, in an accidental condition. On inquiry, they came to know that injured was shifted to BJRM hospital in a private vehicle. IO went to the BJRM hospital after leaving him at the spot. After some time, IO came back to the spot and seized the offending vehicle above mentioned dumper and Martuti Van vide memos already exhibited as Ex.PW10/J and Ex.PW10/K, bearing his signature at point B. IO arrested the accused Arvind vide memo already exhibited as Ex. PW1/B, bearing his signature at point D. IO also personally searched the accused vide memo already exhibited as Ex. PW10/J, bearing his signature at point B. IO seized the RC of dumper vide memo already exhibited as Ex.PW10/I, bearing his signatures at point FIR No. 86/2013 State Vs. Arvind 15 B. IO seized the Permit of dumper vide memo already exhibited as Ex.PW10/E, bearing his signatures at point B. IO seized the fitness certificate of dumper vide memo already exhibited as Ex.PW10/F, bearing his signatures at point B. IO seized the Insurance of dumper vide memo already exhibited as Ex.PW10/G, bearing his signatures at point B. IO seized the DL of accused vide memo already exhibited as Ex.PW10/H, bearing his signatures at point B. IO seized the RC and insurance certificate of car vide memo already exhibited as Ex.PW10/B and Ex.PW10/C, bearing my signatures at point B.
19. Thereafter, prosecution evidence was closed vide order dated 23.12.2019.
Statement under section 313 Cr.PC
20. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded. All incriminating material brought on record were put to the accused, to which he denied the allegations made against him and claimed himself to be innocent and pleaded that he has been falsely implicated in this case. Accused did not opt to lead any evidence in his defence and the same was closed.
FIR No. 86/2013State Vs. Arvind 16 Arguments
21. Before delving into the merits of the above case, it is important to understand the emote of the term rashness and negligence as defined by the Hon'ble Supreme Court of India in Bala Chandra Vs. State of Maharashtra 1968 SC1319 "Criminal Negligence 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. Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness". In deciding the question as to whether the accused was guilty of rash or negligent act within the scope of above sections, the court has to judge as to the amount of care and circumspection which a prudent and reasonable man is said to be having regard to all the circumstances of the case.
22. In the backdrop of the above definition and applying the same to the facts of the above case, it becomes imperative to analyse the testimony of the witnesses examined by the prosecution for the purpose of deducing whether the ingredients necessary for punishing U/S 279 IPC along with Section 337/ 338 IPC are made out or not.
FIR No. 86/201323. At the outset, it is apposite to analyse the testimony of the star and the material witness of the prosecution i.e. the complainant/ injured namely Ramesh Kumari i.e. PW6 and eye witnesses i.e. Gulshan Kumar i.e. PW1, Sunita i.e. PW3, Kishan Kumar i.e. PW5. It is imperative to state, that PW6 i.e. Ramesh Kumari deposed in her examinationinchief, that on the fateful day, she along with her husband, her son Gulshan and her daughter in law Sunita were going to attend a Satsang at Chattarpur, in one maruti van. She further stated, that at 06:30 am, when they reached at Mukundpur Red Light, their car was standing in a stationary position at the red light and at that very moment, one over loaded truck came from the opposite side and after jumping the red light, it came on their side of the road. She further deposed, that the truck first hit the traffic light pole and then it hit against their car. As a result of the impact, the traffic pole also fell on their car and she sustained injuries on her face, i.e. above her eyes. Her husband i.e. Harish Chand sustained grievous injuries in the accident and owing to the injuries sustained, he was bed ridden till his last breath due to the accident.
24. It is further paramount to mention, that it is cogently stated by PW6, that the truck had hit them all of sudden and this fact speaks for itself that the impact was massive and the truck driver was rash and negligent in his driving.
FIR No. 86/2013State Vs. Arvind 18 At this stage, its also become vital to examine the testimony of PW4 i.e. Dr. Shipra Rampal, Specialist Radiology, BJRM Hospital. She proved the medical report i.e. Ex.PW4/A and deposed in the court, that she examined the xray plate No. 547 of patient Harish Chand vide MLC No. 55959. She stated, that there was a fracture of humerous, radius and ulna of right side. She further noted fracture of right pubic bone. Thus, the medical report further testifies and strengths the version of PW6, that the injuries sustained by her husband were so grievous that he was bed ridden till his last breath.
25. Moving ahead, its becomes imperative to examine the testimony of the eye witness, also being the person who accompanied the injured while the accident took place on their way to Chatarpur.
PW1 I.e Gulshan Kumar stated, that on the fateful day he alongwith his aunt Ramesh Kumari, uncle Harish Chand, wife Sunita and Chachi Usha were going to attend Satsang at Chatarpur in their van bearing No. HR29A0279, being driven by their driver Krishan. He further stated, that at 06:30 am, when they reached Burari Red Light Chowk and while their car was standing at the red light, waiting for the signal to turn green, accused came from the opposite side driving the dumper truck at a very high speed from the side of ISBT and jumped the red light and hit against the traffic pole and then subsequently hit into their vehicle while breaking the divider. He further stated, that the truck was over loaded at that time. PW1 further deposed, that in the said accident his uncle Harish and aunt FIR No. 86/2013 State Vs. Arvind 19 Ramesh Kumari suffered severe injuries and as a result of the injuries sustained they are suffering till date. Right hand of Harish got completed damaged as per PW1 after the accident.
26. It is apposite to state, that the photographs Ex.P1 to P11 were shown to the witness and he correctly identified the offending truck. The said witness was not cross examined by the defence despite giving an opportunity to do the same.
At this stage, court deems it fit to examine the photographs placed on record. Perusal of the same clearly shows, that the actual collusion between the truck (offending vehicle ) and the impacted/damaged van. It is cogently clear from the bare perusal of the photographs, that the car is stationed at the red light and the truck had actually come from the opposite side, crossing over the divider and thereafter, barged into the car. The impact of the truck on the face of it appears to be so severe, that the iron pole of red light completely got damaged. The number of the offending truck is also cogently and clearly visible in the photograph. The closer view of the photographs in Ex.P6 and Ex.P7, clearly shows, that the right side of the car is so severely impacted that from the right side the van has completely squeezed and the roof of the car and the base of it have almost aligned with each other. Thus, from bare perusal of Ex.P7 and P9, it can be deduced, that the person sitting on the right side of the vehicle must have sustained grievous injuries.
FIR No. 86/201327. It is further apropos to mention, that PW3 categorically deposed on the same lines as PW6 in her examinationinchief and further deposed the registration number of the offending vehicle correctly. Also, she correctly identified the accused in the court. Thus from the bare perusal of the testimony of PW3, it can be safely deduced, that neither the identity of the accused is disputed nor is the identity of the accidental vehicle is brought under any kind of scanner.
At this stage, it becomes necessary to state, that PW3 was cross examined by Ld APP for the State as the witness could not immediately recollect the complete registration number but the witness could very much with stands the litmus test of crossexamination. Also, court can not be unmindful of the fact, that the accident took place in the month of march 2013 and PW3 was examined only in the year 2015 i.e. almost after the gap of 2 ½ years and in this period the possibility of witness not being able to recollect the exact details and nuances is highly probable and is in perceivable. It will not be out of place to mention, that PW3 correctly identified the photographs of the offending vehicle. True witnesses is not expected to depose in parrot like manner and as per the normal human behavior, the memory of witness is bound to fade with the passage of time.
34. With regard to to minor discrepancies pointed out by the defence, it is settled proposition of law, that the discrepancies which does not hit the root case of the prosecution, cannot create benefit of doubt in favour of the accused persons. Minor discrepancies on peripheral issues are bound to happen, in case of a truthful witness. Every one does not FIR No. 86/2013 State Vs. Arvind 21 have equal power of observation, retention and reproduction, which varies from individual to individual. Every one cannot recollect minor details of the past incidence with complete accuracy, as he has to answer the question based on his recollection of even at that point of time. Hon'ble Apex Court in catena of the judgments has cautioned the approach of the Court, that while evaluating the testimony of witness, it should be to see whether his/her evidence, when examined as a whole, appears to be true or not.
35. Reliance in this regard is placed on the case law authority namely Bhanwari and others Vs. State of Rajasthan 2002(2) CCC 114, wherein it has been held that the minor variance in details which are not essential to the prosecution case would not be enough to discard or reject the testimony of eye witnesses. No true witness can possibly escape from making some discrepant details and a tutored witness can only successfully make his testimony totally non discrepant.
28. PW3 deposed before the court, that the truck driver was not only driving the truck at an extremely high speed but he had also jumped the red light and all this was done by the accused while the truck was overloaded with sand.
Even if the witness was cross examined by Ld. APP for the State but this per se does not by any stretch of imagination lead to the inference, that the injured turned hostile as the court needs to take judicial notice of the fact that the witness explicitly, cogently and clearly stated the number of FIR No. 86/2013 State Vs. Arvind 22 the offending vehicle as well as gave other crucial details which were in sync with the testimony of the other prosecution witnesses. Just the fact that the witness simply stated that she is unable to recollect the face as 2 ½ years have lapsed from the date of the incident, does not lead to an inference that the identity of the vehicle is questioned as with the passage of time the possibility of the memory of the witness fading out to the extent of not being able to identify the exact details of everything cannot be overlooked or ignored. However, the vital issue which needs appreciation is, that the witness clearly stated the registration number and the nature of the offending vehicle (dumper truck) and these two aspects are sufficient to establish the identity of offending vehicle.
29. It is further material to mention, that the MLC of the injured PW6 is placed on record and the same is not only proved by PW4 but stands admitted by the accused in his statement recorded U/S 294 CrPC. Thus, the testimony of the injured qua the injuries received upon his person duly stands corroborated with the MLC placed on record.
30. It is further material to mention, that the MLC of the injured Harish Chand is placed on record and the same is not only proved by PW4 but stands admitted by the accused in his statement recorded U/S 294 CrPC. Thus, the testimony of the eye witness qua the injuries received upon his person duly stands corroborated with the MLC placed on record.
FIR No. 86/201331. At this stage, it also becomes important to mention, that PW5 i.e. Kishan Kumar, being the driver of the maruti van bearing No.HR 69A 7209, was examined by the prosecution at length. He deposed, that at about 06:30 am, when he reached Mukundpur Red Light, he stopped at the traffic signal was red, at that time the offending truck came from the opposite side at a very high speed and all of sudden, after jumping the red light hit against the car that he was driving. He further deposed, that the offending vehicle driver was apprehended at the spot and was handed over to police officers. He correctly identified the truck, and the accused. This witness was duly crossexamined at length by the Ld. Defence Counsel, but nothing material could be culled out in the crossexamination of PW4 to put his testimony under scanner. PW4 withstood the litmus test of crossexamination.
32. It is further paramount to mention, that the evidence of stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is considered to be very reliable and is unlikely that he will spare the actual assailant. His testimony has its own efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was very much present at the time of incident.
33. PW6, Ct. Parvinder was examined as on the fateful day he clicked the photographs and the same are Ex.P1 to P11. He deposed, that he FIR No. 86/2013 State Vs. Arvind 24 received the call from Control Room and he alongwith SI Naresh and Ct. Sandeep had gone to the spot. He further executed the certificate regarding the genunity of the CD and the photographs and the same is Ex.PW6/A.
34. PW1 being the injured and eye witness specifically deposed, that the offending vehicle was being driven at a high speed and the accused was totally negligent in taking the turn and no caution or signal of any kind was given to the other vehicles plying on the road. At the same time, it becomes crucial to corelate the testimony of the eye witness with the site plan i.e. Ex.PW10/M, which also shows and corroborates the story of the prosecution, that the offending vehicle came and took a sharp turn as a result of which the said collision took place. The site plan as per the injured was prepared at his instance and the same bears his signature and it is further noteworthy to mention that the accused neither challenged nor questioned the contents of the site plan.
35. It is a settled law, that testimony of injured witness is considered to be very reliable and is accorded a special status in law. In the case of Bhajan Singh Vs. State of Haryana (2011) 7 SCC 421, where it was held as follows: " The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailants in FIR No. 86/2013 State Vs. Arvind 25 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 lands support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built in guarantee of his presence at the scene of crime and is unlikely to spare his actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. (vide Jarnail Singh v. State of Punjab (2009) 9 SCC 719; Balraje @ Trimbak v.
State of Maharashtra (2010) 6 SCC 673; Abdul Sayed v. State of Madhya Pradesh (2010) 10 SCC
259)".
36. In the case of State of U.P. v. Naresh & Ors. (2011) 4 SCC 324, it was held that evidence of an injured witness cannot be doubted merely because there is a background of previous dispute enmity between the parties because this could well be the motive of giving assault by the accused on injured witnesses. The evidence of an injured witness has to be appreciated keeping in view that ordinarily a person, who has been assaulted by someone would not allow him to go Scot free and falsely implicate persons other than those who actually assaulted him. The evidence of an injured witness stand on different pedestal as compared to any other witness cited by the prosecution as eye witness, who claims to have seen the incident. Where an injured witness clearly names the person and the assault made on him by those persons which is broadly FIR No. 86/2013 State Vs. Arvind 26 corroborated with what has been found in the medical report, even though there may not be any mathematical precision with regard to the manner of assault, the evidence of an injured eye witness cannot be lightly thrown aside only on certain minor contradictions and omissions. It cannot be a case of some exaggeration or it could even be some discrepancy in recollecting the whole incident with exactitude and certainty but on certain minor discrepancy disbelieving altogether the testimony of injured eye witness, would be against settled principle of appreciation of evidence.
37. In the case of Bhajan Singh @ Harbhajan Singh v. State of Haryana ( 04.07.2011), it was held that evidence of an injured witness has to be relied upon, unless the injuries are found to be superfluous or self inflicted just to create evidence against the other party. It was further held that if, the common object stands proved, trivial discrepancies become immaterial and insignificant. The testimony of an injured witness comes with a built inguarantee of his presence at the scene of crime and is unlikely to spare his actual assailants in order to falsely implicate someone (Kailash & Ors. v. State of Maharashtra (2011) 1 SCC 793; Durbal v. State of U.P. (2011) 2 SCC 676).
38. Therefore, in the light of law reproduced as above and applying the same to the facts of the above case, it can be categorically stated, that the testimony of the injured witness in the present case is absolutely clear and FIR No. 86/2013 State Vs. Arvind 27 cogent and free from any kind of discrepancies, embellishment and concoctions. Thus, no ground is produced for brushing aside the testimony of the injured witness. There are no grounds for rejecting the evidence of PW1 and as discussed above unless and until there are no major contradictions and discrepancies in the testimony of injured witness, there arises no reason for either doubting his presence at the spot of incident or for questioning the injuries suffered by him. Moreover, in the case in hand the testimony of PW1 is not only firm, cogent and convincing but is also in consonance with the medical evidence on record.
39. Apart from analyzing the testimony of the star witness i.e. the injured, it also becomes necessary to scrutinize the testimony of the eye witnesses i.e. PW1 Gulshan Kumar and PW6 Ramesh Kumari. On collectively evaluating the testimony of the eye witnesses, it can be stated that neither the spot of incident i.e. Burari Red Light chowk is doubted nor the alleged time of incident i.e. 06:30 p.m. is brought under scanner as it is categorically stated by PW1 as well as PW6, that when they reached Burari Red Light Chowk, the traffic light was red and their van was standing at the red light waiting of traffic light turning green. At the time the accused came while driving a dumper truck at a very high speed from the side of ISBT and by jumping the red light hit against the traffic light pole and then hit their van while breaking divider. Thus, the testimony of the eye witnesses i.e. PW1 and PW6 are in sync with each other as well as with the other ocular and documentary evidences on record. At this stage, FIR No. 86/2013 State Vs. Arvind 28 it further become relevant that in the case of State of Karnataka v. Suvarnamma and Anothers (14.10.2014), it was observed that: " Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if, a video tape is replayed on the mental screen.
In para NO. 10 of the report, this court observed that: ( SCC pp 51415).
"(10) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness 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, 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 witness and whether the earlier evaluation of evidence is shaken as to rander is unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom FIR No. 86/2013 State Vs. Arvind 29 the witness gives evidence had the opportunity to from the opinion about the general tenor of evidence given by the witness, the appellate court which had not disbenefit will have to attach due weightage to the appreciation of evidence by the Trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals".
40. Thus in light of the law reproduced as above it can be stated, that the witness has categorically identified the accused as well as the vehicle by stating the registration number of the offending vehicle in his deposition before the court and merely because the witness could not exactly identify the photographs of the offending vehicle, this per se does not result in eschewing the testimony of the witness. It is further settled proposition of law, that in appreciating the evidence, the approach of the court must be integrated and not truncated or isolated. In other words, the impact of the evidence in totality on the case of prosecution or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and animus of witnesses.
FIR No. 86/201341. In Ugar Ahir v. State of Bihar AIR 1965 SC 272 a three judge bench held that: "7. the maxim falsus in uno, falsu in omnibus (false in one thing, false in everything), is neither sound rule of law nor a rule of practice. Hardly, one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment, it is ,therefore, the duty of the court to scrutinize the evidence carefully and , in terms of the felicitous methapor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.
42. In addition to the above, it also becomes necessary to state, no DE has been led, no plea has been taken that the accused was neither rash nor negligent or for that matter he was not driving the vehicle.
43. In addition to the above, the other witnesses examined by the prosecution are merely formal witnesses and their testimony is also on the same lines and corroborative with the testimony of other prosecution witnesses.
44. Thus, relying upon the law as well as the facts discussed above, it can be safely concluded that the accused persons had inflicted grievous injury upon the person of complainant. The star witness of the prosecution i.e. Gulshan Kumar, has categorically attributed injury to the accused FIR No. 86/2013 State Vs. Arvind 31 person. Though, the Hon'ble Apex Court in the case of Chacko @ Aniyan Kunju and Others v. State of Kerala (2004) 12 SCC 269 has categorically dealt with the question as to whether on the basis of a solitary evidence, conviction can be maintained. It was held that, " conviction can be based on the testimony of a single witness, if he is reliable. If the evidence is unblemished and beyond all possible criticism and the court is satisfied that the witness was speaking the truth than on his evidence alone conviction can be maintained'. However, in the case in hand there is not only the untainted evidence of the star witness but the same stands duly corroborated with other ocular and documentary evidence.
45. Hence, in this case the evidence is not fit solitary but there are many eye witnesses including the injured. In these circumstances, this court has no hesitation in holding that the prosecution has been able to prove beyond doubts that grievous injury was sustained by Harish Kumar due to rash and negligent driving by the accused and the same has been duly caused by accused Arvind.
46. Keeping in view the totality of circumstances and as a sequel of above detailed discussion of law and facts, this court is of the considered opinion that cogent and material evidences have been adduced by the prosecution in order to prove its case and the credibility of the above said prosecution witnesses, could not be shaken or impeached on any material FIR No. 86/2013 State Vs. Arvind 32 points. The prosecution has established the identity of the accused, beyond all reasonable doubts and has further proved that the accused person is guilty of the offence charged for. So, the accused Arvind is held guilty and convicted under Section 279/337/338 of IPC.
Let he be heard on the point of sentence.
Digitally signed by RICHA SHARMA RICHA Announced in open court today SHARMA Date: 2021.03.25 on 25th Day of March 2021 17:34:13 +0530 (Richa Sharma) Metropolitan Magistrate07 North District Court/Delhi FIR No. 86/2013 State Vs. Arvind