State vs. [ENTITY] IN THE COURT OF SH AJAY GARG Metropolitan Magistrate, South, New Delhi State Vs. [ENTITY] FIR N0. : 97/04 U/S : 279/[SECTION] [ACT] PS : Vasant Kunj JUDGM ENT ; a) Sl. No. of the case : 997/2 b) Date of commission of offence : 07.02.2004 c) Date of institution of the case : 14.07.2004 d) Name of the complainant : Sh. [ENTITY] e) Name & address of the : [ENTITY] accused s/o Sh. Chattar Singh Choudhary R/o Vill. Khareta Distt. Khagria Bihar f) Offence complained off : 279/[SECTION] [ACT] g) Plea of the accused : Pleaded not guilty. h) Arguments heard on : 14.12.2012 i) Final order : Convicted j) Date of Judgment : 14.12.2012 FIR No. 97/04 Page 1 of 13 State vs. [ENTITY] BRIEF STATEMENT OF REASONS FOR DECISION: 1.
Briefly stated, the case of the prosecution is that on the fateful day of 07.02.2004, at about 01:30 p.m, Sh. [ENTITY] was going on a scooter bearing registration no. DL-3ST-1279 being driven by complainant Sh. [ENTITY] and when they reached near Masoodpur flyover, D-6, Vasant Kunj within the jurisdiction of PS Vasant Kunj, a Dumper bearing registration no. HR-38D-1986 being driven by accused [ENTITY] in a rash or negligent manner came from the backside and in order to over take hit the scooter of the complainant due to which both complainant [ENTITY] and pillion rider [ENTITY] fell down on the road and Sh. [ENTITY] sustained grievous injuries. With these allegations, accused has been sent to face trial for offences U/[SECTION] [ACT].
2. Upon completion of investigation charge sheet U/[SECTION] [ACT] was filed on behalf of the IO and the accused was consequently summoned. A formal notice for the offence U/[SECTION] [ACT] was served upon the accused on 06.08.2004 to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, six witnesses have been examined on behalf of the prosecution.
4. PW1; Dr. [ENTITY] from ISIC hospital had prepared MLC no.
511/DS/2004 of patient [ENTITY] Ex. PW1/A.
5. PW2; Sh. [ENTITY] (inadvertently recorded as PW1) is the complainant who deposed that on 07.02.2004, he along with injured [ENTITY] was going on his scooter bering no. DL-3ST-1279 being driven by him. He further deposed that he was driving his scooter on the extreme left side of the road while accused came driving a Dumper bearing no. HR-38D-1986 in rash and State vs. [ENTITY] negligent manner and hit against his scooter from the right side due to which he and [ENTITY] along with his scooter fell down on the road and sustained injuries. He deposed that [ENTITY] sustained serious injuries in the said accident and he got [ENTITY] admitted in ISIC hospital. He specifically deposed that he noticed the accused driving the aforesaid dumper but accused fled away from the spot. He further deposed that he identified the accused in the police station. He identified his statement Ex. PW1/A, arrest memo Ex. PW1/B, Seizure memo of DL of accused Ex. PW1/C and seizure memo of documents of offending vehicle Ex. PW1/D.
6. PW3; Ct. [ENTITY] is a police official who accompanied SI [ENTITY] to the ISIC hospital where he found injured [ENTITY] admitted. He deposed that he met complainant [ENTITY] also. He deposed that IO carried out all the proceedings in his presence. He identified seizure memo of scooter no DL-3ST-1279 Ex. PW3/A.
7. PW4; Sh. [ENTITY] is the registered owner of offending vehicle. He has identified seizure memo of offending dumper Ex. PW4/A and superdiginama Ex. PW4/C. He deposed that accused was arrested and DL of accused was seized in his presence.
8. PW5; ASI [ENTITY] is the Duty officer who registered FIR Ex. PW5/A on the basis of rukka sent by SI [ENTITY]. He also identified endorsement on rukka Ex. PW5/B.
9. PW6; Inspector [ENTITY] is the IO of the present case. He deposed that upon receipt of DD no. 30-A he along with Ct. [ENTITY] went to ISIC hospital where he met complainant [ENTITY] and came to know that injured [ENTITY] is being operated upon. He identified rukka Ex. PW6/A and Site plan Ex. PW6/B. He carried out investigation in the instant matter. He State vs. [ENTITY] seized accidental scooter, offending dumper, arrested the accused, conducted his personal search, seized the DL of accused, got conducted mechanical inspection of vehicles and recorded statement of witnesses.
10. Upon completion of Prosecution evidence, statement of accused U/[SECTION] [ACT] was recorded on 29.11.2012 wherein accused has refuted the allegations levelled against him in toto. No evidence in defence was led.
11. I have heard the rival submissions and carefully perused the record.
12. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
13. Now, as far as offence U/[SECTION] and [SECTION] [ACT] are concerned, prosecution has to establish the following ingredients:-
i. Whether accused was driving the offending vehicle? if yes; ii. He was doing so on a public way;
iii. Whether accused was rash or negligent in driving the said vehicle at the time of accident? if yes, iv. Nature of injuries
14. Ingredient wise finding:-
Whether accused was driving the offending vehicle? :- The star witness/ complainant [ENTITY] examined by the prosecution categorically identified the accused as the driver of the offending vehicle State vs. [ENTITY] bearing no. HR-38D-1986 at the time of accident. He categorically stated that he saw the accused while accused was fleeing from the spot. He further submitted that he identified the accused in the police station on 10.02.2004. This fact also stands verified from the testimony of PW4 [ENTITY] who is the registered owner of the offending vehicle. Sh. [ENTITY] (PW4) in his cross-examination admitted that he took the accused to police station where PW1 [ENTITY] identified the accused. Further, no defence evidence has been laid by the accused to disprove this fact. No reason for false implication of the accused by the complainant has been shown. In these circumstances, it stands proved that on the date of accident accused was driving the offending vehicle.
15. Whether accused was driving the vehicle on a public way? :- It is not in dispute that the accident took place on main road which is a public place.
16. Whether accused was rash or negligent? :- In order to prove this ingredient the testimony of PW1 [ENTITY] requires consideration. As per PW1 [ENTITY], he was driving his scooter on the extreme left side when the dumper being driven by accused in a rash and negligent manner and in a high speed overtook his scooter and while doing so caused the accident. The factum of overtaking itself suggest rashness of the accused. Further, if accused tried to overtake meaning thereby he came from behind. PW1 also stated that truck was being driven at a high speed and collided with the rear side portion of the scooter due to which he fell down two feet away. In such a situation complainant had no occasion to foresee the danger and to save himself. Complainant was having no option but to watch his fate. Reliance can be placed upon the case of Ramesh Kumar vs. State State vs. [ENTITY] (Delhi) reported in 2008 (4) A.D (Delhi) 207 wherein it is held :-
"Where negligence is attributed as an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not negligence merely based upon an error of judgment. In the present case, it cannot be lost sight of that the deceased was walking in the direction of the moving traffic and the offending vehicle driven by the petitioner hit the deceased from behind which means that the deceased in such circumstances was not expected to see the vehicle which was coming from behind. Thus, it was petitioner who owed a duty to take care especially being in the capacity of a driver who could have foreseen the danger resulting in such eventuality. In my considered view, in the given facts and circumstances, the petitioner omitted to act in a diligent manner causing the death of an innocent person. "
As per testimony of PW1 [ENTITY], accused fled away from the spot after accident. This conduct of accused also indicates that he was at fault. Though the injured [ENTITY] was not examined as he was not traceable, however, complainant who was accompanying the injured at the time of accident stood the test of veracity. Ld. Defence counsel failed to shake his credibility. Law is crystal clear that it is the quality and not the quantity of evidence that matters.
17. It is observed in the matter of [PRECEDENT] that: State vs. [ENTITY] " Even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence Courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs "
Further I found no reason to disbelieve the sworn testimony of PW1 who stood the test of trust-worthiness. No reason for his false implication has been shown by the accused. PW1 being an independent witness would not involve himself to the rigours of a criminal trial except to book the real offender and would be the last person to screen the real culprit without any interest. Law in this regard is well settled as held in [PRECEDENT]
" A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feeling run high and there is personal cause of enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being the foundation is often a State vs. [ENTITY] sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observation are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is not such general rule. Each case must be limited to and be governed by its own facts."
No evidence has been led by the accused either to discard the testimony of prosecution witness or to prove his innocence. The accused though a professional driver has not come out with any plausible ground as to what prompted him to drive the Dumper so closely to the scooter of the injured or to overtake him.
Rashness and negligence are defined herein:-
18. Rashness: A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences- [PRECEDENT].
19. Negligence: Negligence in common parlance means and implies "failure to exercise due care, expected of a reasonable and prudent person". It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of the safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act.
20. Rashness and negligence are defined in a very lucid manner by the Hon'ble Apex Court in the case of Prabhakaran vs. State of Kerala, (SC) State vs. [ENTITY] reported in 2007 (3) R.C.R. (Criminal) 605 : wherein it is held :-
"A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not".
It is further held in para 6 of the abovesaid judgment :-
"Culpable negligence lies in the failure to exercise reasonable and proper circumstances of each case. Rashness means doing an act 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 is the amount of care and circumspection which a prudent and reasonable man would consider 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."
It is so held in para 7 of the abovesaid judgment :-
"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".
State vs. [ENTITY]
21. Defence taken by accused seems to be a moonshine as no supporting evidence has been adduced. Further the suggestions put by the Defence counsel were neither taken up nor explained by accused in his statement U/[SECTION] [ACT] and he merely denied the prosecution evidence in toto. It also shows that accused has no defence and suggestions were given on hit and trial basis. In view of unshaken testimony of PW1, legal position and the evidence placed, it is proved that accused was driving the offending vehicle bearing no. HR-38D-1986 at the aforementioned time and place in a manner so rash and negligent as to endanger human life or to be likely to cause hurt or injury to any other person.
22. Nature of injuries:- To prove this fact Dr. [ENTITY] (PW1) was examined on behalf of prosecution who prepared the MLC Ex. PW1/A and proved the factum of dangerous injuries upon the person of injured Sh. [ENTITY]. The said doctor was not cross-examined by Ld. Defence counsel. Hence, his testimony goes unrebutted and stands admitted. Therefore, it is proved that injured suffered dangerous injuries.
23. The contention raised by Ld. Defence counsel that various contradictions are noticed in the testimony of prosecution witnesses also holds no water as Ld. Defence counsel failed to point out any such major contradiction. Even otherwise, minor contradictions, if any, are bound to occur due to lapse of time and individual appreciation and narration of the facts. It is so held in [PRECEDENT] that : "In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observations, namely, errors of memory due to lapse of time or due o mental State vs. [ENTITY] 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.
"Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e, materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."
24. Non-examination of any public witness apart from PW1 is also not fatal considering the human tendency to shy away from the legal entangles. Further testimony of PW1 found to be cogent, coherent and trust- worthy. I found no reason to disbelief his sworn testimony which is duly corroborated by other circumstantial evidence produced on record. It is observed by Hon'ble Apex Court in the matter of [PRECEDENT].
"As a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal State vs. [ENTITY] impediment in convicting a person on the sole testimony of a single witness. That is the logic of [SECTION] of the [ACT] (in short the '[ACT]'). But, if there are doubts about the testimony the courts will insist for corroboration. It is for the Court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time honoured principal is that evidence has to be weighed and not counted. On the principles stands the edifice of [SECTION] of the [ACT]. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
25. Lastly, this Court is remindful of the dictum of Hon'ble Justice Sh. [ENTITY] in the case of [PRECEDENT] wherein it is further held that :-
"Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerations devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that the acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person lightheartedly as a learned author has sapiently observed, goes much beyond the simple fact that State vs. [ENTITY] just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with [ENTITY], that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent " In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
26. In the light of above discussion, it is held that all the ingredients for the offence U/[SECTION] and [SECTION] [ACT] are made out. Hence, accused is convicted for the offence punishable U/[SECTION] & [SECTION] [ACT]. Ordered accordingly.
Announced in the open court on 14.12.2012 ([ENTITY]) MM/Delhi /14.12.2012