Delhi District Court
State vs Shiv Kumar on 21 May, 2025
IN THE COURT OF MR. VAIBHAV KUMAR
METROPOLITAN MAGISTRATE - 05 (NDD)
PATIALA HOUSE COURTS: DELHI
State Vs. : Shiv Kumar
FIR No : 234/2017
U/s : 279/337/338 IPC & 185 MV Act
P.S. : Sarojini Nagar
DLND020028512019
1. CNR No. of the Case : 788/2019
2. Date of commission of offence : 17.12.2017
3. Date of institution of the case : 13.08.2018
4. Name of the complainant : Pappu S/o Lt Sher
Singh
5. Name of accused, parentage & : Shiv Kumar S/o Sh.
Lalita Prasad R/o
S-117/A-339, Sanjay
Camp, Chankyapuri, ND.
6. Offence complained of : 279/337/338 IPC & 185
MV Act
7. Plea of the accused : Pleaded not guilty
8. Final order : Convicted
9. Date of final order : 21.05.2025
Argued by:- Mr. Aniket Kumar, Ld. Substitute APP for State
Mr. Jayant Kumar, Ld. Counsel for accused.
FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 1 of 29
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX:
1. Briefly stated, the case of the prosecution is that on 17.12.2017 at about 09:30 PM, at the service road, near new Moti Bagh, near Moti Bagh Bus Stand, the accused i.e., Shiv Kumar was found driving the vehicle bearing no. HR-63-BT-
0162 in a rash and negligent manner and had hit against a car bearing no. DL-1Z-A-5539 due to which simple injuries were caused to passengers Laxmi and Satish, and grievous injuries were caused to passenger Sanjay. Further, the accused Shiv Kumar was found to be intoxicated with liquor at the time of incident beyond the permissible limits. As such, it is alleged that the accused has committed the offence punishable under section 279/337/338 of the Indian Penal Code, 1860 (hereinafter, "IPC") and Section 185 Motor Vehicle Act, 1988 (hereinafter MV Act), for which FIR No. 234/2017 was registered at the police station Sarojini Nagar, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED:
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused was filed. The Ld. Predecessor of the court took the cognizance against the accused person and summons were issued to him. On his appearance, a copy of the chargesheet FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 2 of 29 was supplied to the accused in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, notice for offence punishable under section 279/337/338 of IPC and Section 185 MV Act was framed against the accused on 25.07.2019. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 - Pappu PW-2 - Laxmi PW-3 - Satish PW-4 - Sanjay PW-5 - IO/ASI Bijender DOCUMENTARY EVIDENCE Ex. PW1/A -Statement of complainant Ex.PW-1/B - Arrest memo Ex. PW-1/C - Personal search memo Ex.P-1 - photographs of offending vehicle Ex.P-2 -Photograph of vehicle of victim Ex.PW-5/A & -Seizure memo of vehicle Ex.PW5/B Ex. PW-5/C - Tehrir Ex.PW5/G - Receipt of AIIMS ExPW5/H - notice u/s 133 M V Act Ex.PW5/1 - DD No.25A Ex.PW5/J - Seizure of DL FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 3 of 29 Ex.PW5/K - Seizure of documents of offending vehicle ADMITTED DOCUMENTS Ex.A-1 (colly) FIR No.234/2017 dated 18.12.17 along certificate Ex.A-2 DD No.42A dated 17.12.17 Ex.A-3 (Colly) MLC no.7312/17, 7313/17 and 7314/17 Ex.A-4 Superdarinama of vehicle No.DL 1ZA 5539 and vehicle HR 63BT0162 Ex.A-5 (colly) Mechanical inspection of vehicle No.DL 1ZA 5539 & vehicle HR 63BT0162 Ex.A-6 Lab report no.TOXI43/17 of accused Shiv Kumar
4. PW-1/1/Pappu has deposed that on 17.12.2017 at about 9:30 PM, he along with his wife Laxmi, his son Satish and brother Sanjay were going to Charak Palika Hospital Moti Bagh, New Delhi in his car bearing registration no. DL1ZA 5539 make Xcent. He has deposed that when they reached near Shanti Path at service road near Moti Bagh Bus Stand, one vehicle make Innova having registration no.HR 63 BT 0162 came in the said service lane which was being driven in a rash and negligent manner and in a very high speed. He has deposed that the said vehicle had hit again his car due to which his family members suffered injuries. He has stated that he made call at 100 number upon which the police came to the spot and shifted the injured to Trauma Centre. He has deposed that FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 4 of 29 afterwards he along with his family members went to Max Hospital, Patparganj where the medical examination of victims was conducted and the police recorded his statement.
He has stated that on the next day, he went to PS Sarojini Nagar where the accused was present and was identified by him, upon which the police arrested the accused and conducted his personal search. He has deposed that the police had prepared site plan upon his instance. The witness has correctly identified the accused and the offending vehicle in the Court. During his cross examination, he has deposed that width of the service lane must be around 6.5 ft. and there was street light installed at the service lane as well as the main road. He has deposed that there was no fog at the time of accident and there was a tree towards his right-hand side. He has stated that the accused was coming from the side of Moti Bagh and there was a cycle ahead of his vehicle. The witness has denied the suggestions that the accused had hit against a tree to save the cyclist. He has stated that at the time of incident, some more persons were also there in the offending vehicle and he had apprised the police regarding the same. Further, he has stated that his vehicle was being driven at a speed of 30-40 KMPH and the accused was in a very high speed, however, he could not tell the speed.
5. PW2/Laxmi has deposed that she is a housewife and on 17.02.2017, at around 09:30 AM, she along with her husband Pappu, her son Satish and her brother-in-law (devar) namely Sanjay were going to Charak Palika Hospital, Moti Bagh in FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 5 of 29 their car bearing no. DL1ZA 5539 make Accent. She deposed that when they reached Shanti Path service road near Moti Bagh bus stand, one vehicle bearing no. HR63BT 0162 make Innova came from the side of New Moti Bagh, Gate no.1 in a rash and negligent manner and hit their car on the front side. She deposed that she along her son Satish and her brother-in- law Sanjay got injured and she became unconscious. She deposed that she was taken to the Max Hospital, Patparganj, East Delhi where police recorded his statement. The witness has correctly identified the accused and the case property in the Court. During her cross examination, she has deposed that their car was at a slow speed and the car of the accused was at a very high speed. She has further stated that she was seating in the middle of the rear seat of the car and further she has denied the suggestions of the accused.
6. PW3/ Satish has deposed that on 17.02.2017, at around 09:30 AM, he along with his father Pappu, mother Laxmi and his uncle (chacha) namely Sanjay were going to Charak Palika Hospital, Moti Bagh in a car bearing no. DL1ZA 5539 make Accent and when they reached Shanti Path service road near Moti Bagh Bus stand, one vehicle bearing no.HR63BT 0162 make Innova came from the side of New Moti Bagh, Gate no.1 in a rash and negligent manner and hit their car on the front side. He deposed that he along with mother Laxmi, uncle Sanjay and father Pappu got injured. He deposed that his father called at 100 number and police came at the spot and shifted all of them to Max Hospital, Patparganj, East FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 6 of 29 Delhi where police recorded his statement. The witness has correctly identified the accused and the case property in the court. During his cross examination, he has deposed that there was no light near the place of accident and it was dark due to trees. He has stated that vehicle of accused collided with his vehicle and thereafter the offending vehicle collided with a tree and stopped. He has deposed that his car was being driven at a speed of 20 KMPH and he was sitting along with the driver. He has deposed that the police had sent them to Trauma Centre, however, there was no space, hence, they went to Max Hospital, Patparganj where the police recorded their statement. He has stated that the accused was at a very high speed and the offending vehicle was being driven in a zig-zag manner.
7. PW4/ Sanjay has deposed that on 17.02.2017 at around 09:30 PM, he along with brother Pappu, sister in law namely Laxmi, and nephew namely Satish were going towards Charak Palika Hospital, Moti Bagh in a car make Hyundai Ascent bearing registration no.DL1ZA5539 and when they reached Shanti Path Service Road, near Moti Bagh Bus Stand, one car make Innova bearing registration no.HR63BT0162 coming from the side of New Moti Bagh, Gate No.1 in a very rash and negligent manner and hit their car on the right front side (driver side). He deposed that he along with sister-in-law and nephew got injured and they were taken to the hospital i.e. Max Hospital, Patparganj, New Delhi for medical treatment by his brother. He deposed that during investigation; police recorded his statement. The witness has correctly identified FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 7 of 29 the accused and the case property in the Court. During cross examination, he deposed that he was sitting at the rear seat of the car at the time of accident. He deposed that he got injury on the right leg and his sister-in-law got injuries on her head. He deposed that he saw the accused while he was driving and hit his car. There was proper light at the place of accident. He deposed that his car was approximately at the speed of 20-30 KMPH while the accused was driving his car at a speed of approximately 70-80 KMPH. He deposed that he does not remember whether there are public persons or not at the spot.
8. PW5/ASI Bijender has deposed that on 17.12.2017, he was on emergency duty from 8:00 PM to 8:00 AM and on that day, DD No.42A was marked to him for investigation. He deposed that he along with HC Jayant went to the alleged spot i.e. Shantipath Marg, near New Moti Bagh Bus Stand where he found the PCR vehicle present there and the accused namely Shiv Kumar was handed over to him by the PCR vehicle Incharge. He deposed that both the vehicles involved in accident were present there in accidental condition, the registration number of offended vehicle Accent Car was DL 1ZA 5539 and the registration number of the offending vehicle HR 63BT 0162. He deposed that the injured had already gone to some unknown hospital for medical intervention. He got the medical examination of the accused conducted at AIIMS Trauma Centre by HC Jaiwant Kumar and thereafter, he received an intimation vide DD No.4A regarding MLC of injured persons at Max Hospital FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 8 of 29 Patparganj. He deposed that he directed HC Jaiwant to remain at the spot while he left for Max Hospital where he collected the MLC of three injured persons. He deposed that he recorded the statement of complainant Pappu and returned to the alleged spot of incident and seized both the vehicles. He deposed that he prepared tehrir on the basis of complaint and handed over to HC Jaiwant for registration of FIR, he left the spot for PS, got the FIR registered and returned to the spot along with copy of FIR and original rukka and handed over to him. He prepared the site plan and he along with HC Jaiwant and the accused returned to the PS where he arrested the accused, conducted personal search of the accused. He deposed that HC Jaiwant collected blood sample of the accused from AIIMs Trauma Centre in a sealed condition and the sealed blood sample was deposited in the malkhana. He deposed that he interrogated the accused and the accused was released on police bail. Subsequently, the sealed blood sample was sent for forensic analysis to AIIMS hospital. He deposed that he obtained the result of analysis of the blood sample from AIIMS Hospital. The toxicology report bearing no. Toxi43/2017 was also obtained from AIIMS hospital by him and mechanical inspection of both the vehicle was also conducted. He deposed that he issued a notice under Section 133 M V Act to the owner of the offending vehicle who revealed that the offending vehicle was being driven by accused Shiv Kumar. Thereafter, he prepared the arrival DD Entry bearing DD no.25A. He deposed that he obtained the MLC documents and discharge note of accused Shiv Kumar FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 9 of 29 from AIIMS hospital and seized the photocopy of DL of the accused. He deposed that he obtained the final discharge summary and MLC from Max hospital of the injured persons and seized photocopy documents pertaining to vehicle no.HR 63BT 0162. He deposed that he recorded the statement of witnesses under Section 161 Cr.P.C., upon completion of investigation, prepared the charge sheet and filed before the Court. The witness has correctly identified the accused and case property in the Court. During his cross examination, he has deposed that after receiving DD no.42A on 17.12.2017 at around 9:30 to 10:00 PM, he reached at the spot within 15 minutes from the PS. He deposed that he sent HC Jaiwant to the AIIMS Trauma Centre, however, he does not remember the exact time as to when he was sent. He deposed that he does not remember the exact time when he went to the Max Hospital Patparganj but he remained there 40-45 minutes, and returned back at around 3:30 AM. He deposed that he recorded the supplementary statement of the complainant on the next day i.e. 18.12.2017, however, he could not remember the exact time. He could also not remember as to when or on which day the statement of Laxmi and Satish were recorded. He has deposed that he had deposited the blood samples which he received from AIIMS Trauma center at the Malkhana on 18.12.2017, however he could not remember when the said samples were sent to AIIMS forensic Department. He deposed that the said accident occurred at service road near Gate no.1, New Moti Bagh Bus stand and he had prepared the site plan, however, he did not show the FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 10 of 29 width of the service lane in the site plan. He deposed that there was no fog at the time of accident and there was street light on the service road as well as on the main road. Rest of the suggestions have been denied by the witness.
STATEMENT OF THE ACCUSED PERSON AND DEFENCE EVIDENCE:
9. Thereafter, before the start of defence evidence in order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against her, the statement of the accused person was recorded on 06.03.2025 without oath under section 281 CrPC r/w 313 CrPC, wherein he has stated that he is innocent and has falsely been implicated in the present case. He further stated that he was not driving his vehicle negligently, rather one bicycle suddenly came in front of him and in order to save the said bicycle, the accident took place. He also stated that he wishes to lead defence evidence.
DEFENCE EVIDENCE
10.DW1 Shiv KumarKumar has deposed that on the day of incident, he was driving back to his home after finishing his work and at around 09:30 PM, when he was at the service road near New Moti Bagh, one bicycle case in front of his vehicle suddenly, and in order to save the said bicycle, he had slightly turned his car however, the victim's car came in front of him and to save the collision, he turned his car towards a tree and had hit against the tree. He has deposed that the said service lane was a narrow lane due to bushes on sides and it FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 11 of 29 was a dark foggy night. During his cross examination he has deposed that he had applied brakes however the accident still occurred.
ARGUMENTS:
11. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
12. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the accused was apprehended by the police officials on the spot and the said accident is not even in dispute. Moreover, the complainant as well as the eye witness have testified in support of the prosecution and the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
13. Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that there is contradiction in the version of the prosecution witnesses and even the PCR caller has not been examined as a witness. He has also disputed the genuineness of the site plan and has argued that FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 12 of 29 the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE:
14.The accused has been charged for the offences of rash driving on public way (S. 279 IPC) and causing simple injuries upon the victim Laxmi and Satish (S. 337 IPC) and grievous injuries upon victim Sanjay by a rash or negligent driving (S. 338 IPC) in the present case. In addition to that, the accused has also been charged for driving a vehicle under influence of alcohol (section 185 MV Act). Whereas under Section 279 IPC, the factum of rash or negligent driving likely to endanger human life or cause hurt etc. is in itself the offence, under Section 337 IPC, simple injuries upon the victims and under section 338 IPC, grievous injuries upon the victim due to such rash or negligent driving must be proved. In order to bring home the guilt of the accused, the prosecution has to prove that the accused was driving the offending vehicle under influence of alcohol and in a rash or negligent manner, and due to such driving of the accused, the victim suffered injuries.
15.Thus, the gravamen of the offences under Section 279/337/338 IPC is the act of the accused, done with FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 13 of 29 "rashness" or "negligence". The IPC does not define either of these terms. However, the ambit of these terms has now been settled by judicial pronouncements of superior Courts. In Empress of India vs. Idu Beg ILR (1881) 3 All 776 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the consequences of such act. The Hon'ble Apex Court in the case of Rathnashalvan vs. State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-
"7. .... Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what the amount of care and circumspection is which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. As noted above, "rashness"
consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted."
FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 14 of 2916.Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal vs. CBI (2014) 6 SCC 173. The standard of negligence was discussed in the said case, by observing, inter alia, as under-:
"58. In the case of "negligence" the courts have favoured a meaning which implies a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection."
17.Thus, rashness implies doing an act despite the consciousness that it might result in injuries. Negligence, on the other hand, means lack of reasonable care that a person placed is the fact situation ought to take, in order to avoid injuries. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 15 of 2918.Further, in order to prove the offence punishable under section 185 MV Act, the prosecution must prove that the accused was driving the offending vehicle while being under influence of alcohol and the quantity of consumption was more than 30mg/100ml. Section 185 reads as: -
"185. Driving by a drunken person or by a person under the influence of drugs. -Whoever, while driving, or attempting to drive, a motor vehicle, -
(a) has, in his blood, alcohol exceeding 30 mg.
per 100 ml. of blood detected in a test by a breath analyser, or
(b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle.
shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for term which may extend to two years, or with fine which may extend to three thousand rupees, or with both"
APPRECIATION OF EVIDENCE:
19.In the instant case, it is not in dispute that an accident had taken place and as a result the victim, Laxmi and Satish had FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 16 of 29 suffered simple injuries and victim Sanjay had suffered grievous injuries on the date of the incident. Now, it was upon the prosecution to prove that offending vehicle was being driven by the accused at the relevant point of time in rash or negligent manner and under influence of alcohol. It is pertinent to note that PW-1 in his testimony has deposed that when he was driving his vehicle at the service lane of the New Moti Bagh, near Bus Stand, the offending vehicle came being driven at a very high speed and had hit against his vehicle. He stated that the driver of the offending car was driving the vehicle in a rash and negligent manner and at a high speed due to which the accident took place. The witness has correctly identified the accused in the court as the person who was driving the offending vehicle at the time of the incident. To corroborate his testimony, the prosecution has examined the victim Laxmi as PW2 who has deposed that on the day of incident, the accused was driving his car at a very high speed and had hit against their car due to which she, her son Satish and her brother-in-law Sanjay sustained injuries. The PW2 has also correctly identified the accused and the offending vehicle correctly during the trial.
20. Similar has been the testimony of PW3/victim Satish who had deposed that on the day of incident, the accused was driving his vehicle at a high speed and in a Zig Zag manner and had hit against their vehicle due to which they sustained injuries. He has also stated that initially they were taken to Trauma Centre by the police but there was rush hence they went to Max Hospital Patparganj where they were medically FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 17 of 29 examined by the doctor. Also, PW4/victim Sanjay has deposed that the offending vehicle was being driven by the accused in a rash and negligent manner and it had hit on the front right side of their vehicle due to which they sustained injuries. All the witnesses have correctly identified the accused as the driver of the offending vehicle.
21.Apart from the testimony of the complainant, the prosecution has also relied upon the testimony of PW5 ASI Bijender Singh who reached the spot upon receiving the DD No. 42 A and found both the vehicle in accidental condition. He has deposed that the accused was also found on the spot and he was taken to hospital for medical examination. He has also stated that he then went to Max Hospital where the victims were admitted and after collecting their MLC he recorded the statement of complainant upon which rukka was prepared and the FIR was registered.
22.It is trite law that it is not the opinion of the witness as regards the rash and negligent driving of the accused which is significant, but what is essential is the depiction of the manner in which the offending vehicle was being driven for which a reliance is being placed upon Kishore Chand Joshi Vs. State Crl. Rev. Petition 627/2016 pronounced on 12.11.2018 by the Hon'ble Delhi HC. In the present case, the witnesses have deposed that the driver of the offending vehicle was coming at a very high speed in a rash and negligent manner and had hit the vehicle of the victims at the service lane which shows the reckless attitude of the accused. The site plan Ex. PW5/D FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 18 of 29 prepared by the IO also suggests that the said accident took place at the service lane and the vehicle of the victim found in its lane. The testimony of the victims that the accused was driving his vehicle at a very high speed coupled with the site plan suggests that the offending vehicle was being driven in a service Lane at such a high speed that even after hitting the car of the victim, it had jumped on the footpath where it was found by the police party. Further the photographs of the offending vehicle and the victim's vehicle on record would show that the front side of the offending vehicle has been completely damaged from its driver's side and the victim's vehicle is also damaged from its driver's side implying that the collision was a head on collision. Further, it has been deposed by the PW5 that the accused was taken to the hospital and was medically examined and it was found that the accused was under influence of alcohol. The said fact has also been mentioned in the toxicology report dated 29.12.2017 whereby it has been stated that sample of the blood of the accused was received on 27/12/2017 and it was found to be positive for ethyl alcohol having an amount of 30.50 mg/100ml i.e., more than permissible limit of 30mg/100ml. The said report has been exhibited by the prosecution as Ex. A-6 and has not been disputed by the accused. Moreover, the accused was taken to the hospital by the IO himself where his MLC was conducted and blood sample was also taken which was subjected to examination and was found that the accused was under the influence of Alcohol at the time of the incident. This shows that the accused was under the influence of FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 19 of 29 alcohol beyond the permissible limits at the time of driving the offending vehicle and the said fact also shows the negligence on the part of the accused.
23.The Ld. Counsel for the accused has contended that the testimony of prosecution witnesses cannot be relied upon as all except one are interested witnesses being victims. It is pertinent to note that the victims are the eye witnesses of the offence and they have unequivocally stated that the accused was driving his vehicle in a rash and negligent manner due to which the incident took place. The contention that no other independent public person was made a witness in the present case or was joined by the IO during investigation is not acceptable as the prosecution has proved its case otherwise. In this regard, it would also be apposite to the reiterate the settled legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another V. State of Gujarat [AIR 1988 SC 696]. Further, it has again been reiterated by the Hon'ble Supreme Court in the case of Guru Dutt Pathak vs. State of Uttar Pradesh Crl. Appeal No. 502 of 2015 that non-examination of independent witnesses is not fatal to the case of the prosecution when other prosecution witnesses are found to be trustworthy and reliable. Further, the testimonies of the witnesses are indeed impeccable and corroborative of each other. Therefore, there is no reason to disbelieve the testimonies of PW-1, PW-2, PW3 and PW-4 when the same is found to be credible.
FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 20 of 2924.It has been further stated by Ld. Defence Counsel that there is no public witness to prove the accident and even HC Jaiwant has not been examined by the prosecution. However, Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of fact. Once the evidence of a truthful public witness in the form of victim is available on record, there is no requirement of any other witness to prove such facts. The law regarding a witness who is a victim of the offence is well settled that it stands on a higher footing. For appreciating the evidence of a victim, the Court has to bear in mind that the presence of such victim at the time and place of the occurrence cannot be doubted. While appreciating such evidence, the Court must not attach undue importance to minor discrepancies, if any. The PW2, PW3 and PW4 are the victims of the offence in the present case. They are the best witness to describe the manner in which the offence was committed by the accused. Being the victims of the crime, they would be most keen to ensure that the real culprits do not go Scot free. Moreover PW1, although is not a victim but he is an eye witness to the incident and what interest will he have to implicate the accused falsely in the case. In Abdul Sayeed vs State of M.P, (2010) 10 SCC 259 , the Hon'ble Supreme Court of India, while dealing with the reliability of testimony of injured witness, has held as under:
"The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 21 of 29 is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
25. Further, PW-5, being the IO has further corroborated the testimony of the prosecution witnesses and the fact that he prepared the rukka and handed over the same to Ct. Jaiwant and after registration of FIR, seized the victim's car and the offending vehicle and deposited the case property in the Malkhana. Moreover, in view of the testimony of the witnesses and the fact that the accused was found at the spot itself and he was taken to hospital by the IO, it has come on record that the accused was driving the offending vehicle at the relevant point of time, which is also not disputed by the accused. Also, the mechanical inspection report of both the vehicles has not been disputed by the accused and the same shows that the front right side of the Victim's car was damaged and the front right-side door, fender, bumper, Tyre Rim and suspension of the victim's car were also damaged due to the impact. Further, the report also shows that the offending vehicle also got damaged form its front side which shows that it was a head-to-head collision and apparently the FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 22 of 29 accident occurred due to the rash and negligent driving of the accused. There was no improbable fact, which accused could cull out from the testimonies of the prosecution witnesses. Therefore, the testimonies of the prosecution witnesses are found to be trustworthy and reliable.
26.The Ld. Counsel for the accused has contended that the IO had not conducted a fair and proper investigation and there are material discrepancies in the investigation. The Ld. Counsel for the accused has contended that there is a delay in registration of the FIR as the same has been registered after 7 hours of the alleged incident despite the Police Station being at a nearby distance from the spot. It is also argued that the IO had not made any independent person a witness to prove the case of the prosecution. However, the same is not a material defect to disbelieve the case of the prosecution. The delay of 7 hours in registration of the FIR has been explained by the IO as he went to the spot first where he found that the victims have been taken to hospital, thereafter he took the accused to the hospital for his treatment and then went to the hospital to take the statement of the complainant upon which the FIR was registered. Further, the site plan also bears the signature of the PW-6 i.e., the IO. It depicts the state of affairs as told by PW- 1 which is further corroborated by the testimonies of PW2, PW3 and PW-4 regarding the accident in question. It is a settled law that defective/ improper investigation by the investigating agency is solely not a ground for acquittal as it would tantamount to playing into the hands of the FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 23 of 29 investigating officer if the investigation is designed to be defective. The Hon'ble Supreme Court in the case of C. Muniappan and Others vs State of Tamil Nadu (2010) 9 SCC 567 with regard to the defective investigation has observed as under, "Defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions, etc., which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses carefully to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the objects of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the Investigating Officer and whether due to such lapse any benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the fake and confidence of the people in the criminal justice administration would be eroded."
FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 24 of 2927.It is also pertinent to note that the Ld. Counsel has not been able to show any major contradictions in the testimonies of the prosecution witnesses so as to disbelieve their testimonies and even if he would have pointed out, it is a settled law that some minor contradictions are bound to occur when the witnesses are examined after a long gap of time from the date of incident. However, such minor contradictions cannot make the evidence unreliable. A reliance be placed upon the judgment of the Hon'ble Apex Court in Bhagwan Jagannath Markad and others Vs. State of Maharashtra (2016) 10 SCC 537, wherein it has observed as under :
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 25 of 29 attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle "
28.It has also been observed by the Hon'ble Supreme Court in Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601] that, "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 26 of 29 horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
29.In the present case also, there is no major contradiction noted in the testimony of the prosecution witnesses. Their testimonies are cogent and convincing. There is no reason to doubt their testimonies. The MLC of the victim is also on record which has not been disputed by the accused. Perusal of the MLC of victim Laxmi would show that she had sustained simple injuries due to the accident. The MLC of victim Satish also shows that he had "Soft Tissue Injury" and abrasions on the left hand. Also, the MLC of victim Sanjay would show that he had sustained various injuries and there was a deformity in his right leg. The nature of injuries has been opined as "Grievous" over the MLC of victim Sanjay. There appears no reason as to why the victims would falsely implicate an innocent person while leaving the real culprit unpunished.
30.The accused during her examination under Section 281 r/w 313 Cr.P.C., has stated that he had been falsely implicated in the matter. Further, he has stated that he was not driving the vehicle at a high speed and he was not negligent, rather he has stated that a bicycle came in front of him suddenly and he FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 27 of 29 tried to save the said bicycle however the vehicle of the victim came in front hence the collision happened. Further, the accused lead defence evidence and examined himself as DW1 where he reiterated his defence however in his cross examination, he stated that he applied brakes but still the accident occurred. However, the accused has merely made oral assertion which has not been supported by any other evidence. The testimony of the accused when weighed in comparison to the prosecution witnesses, is not sufficient to even raise a doubt over the case of the prosecution. Moreover, the accused has admitted that the accident took place and his vehicle could not be stopped even after applying brakes. This further supports the version of the PWs that the vehicle of the accused was at such a high speed, which could not be stopped even after application of brakes despite the offending vehicle being an advanced technology vehicle Innova. Also, the accused has not disputed the toxicology report and the fact that he was under influence of alcohol at the time of incident.
31.In the present case, for the aforesaid reason, in light of the testimonies of the prosecution witnesses, there is no specific reason to disbelieve the testimony of the victims and the eye witness when the same is otherwise credible and trustworthy. Therefore, the lapses which have been pointed out by the Ld. Counsel for the accused does not materially affect the testimony of the prosecution witnesses and the same leads to the conclusion that the accused was driving his vehicle in FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 28 of 29 such rash and negligent manner that it had caused the grievous injuries to PW-2, PW-3 and PW-4.
CONCLUSION
32.To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence charged against the accused beyond reasonable doubt. The testimony of the victims and other witnesses is coherent and directly implicates the accused. The defence has failed to punch a hole in the consistent testimony of the prosecution witnesses. This Court has no hesitation to hold that the accused was rash and negligent due to which the said accident took place in which the victims suffered injuries. The prosecution has proved all the ingredients of the offences beyond reasonable doubt.
33. Resultantly, the accused, Shiv Kumar S/o Sh. Lalita Prasad is hereby found guilty for offences punishable under section 279, 337, 338 of the Indian Penal Code, 1860 and section 185 of Motor Vehicle Act 1988 and is convicted accordingly. Let the convict be heard separately on sentencing.
Announced in open court on 21.05.2025 in the presence of the accused.
(Vaibhav Kumar) JMFC/MM-05,Patiala House Courts New Delhi District, 21.05.2025 FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 29 of 29 Note:- This judgment contains 29 pages and each page has been signed by me.
FIR No. 234/2017, PS Sarojini Nagar State vs. Shiv Kumar Page 30 of 29