Delhi District Court
Jay Singh vs The State on 23 December, 2024
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-007323-2020
Criminal Appeal No.: 167/2020
JAY SINGH,
S/o. Shri. Krishna,
R/o. VPO Ismaila,
District Rohtak,
Haryana. ... APPELLANT
VERSUS
STATE (NCT OF DELHI) ... RESPONDENT
Date of Institution : 27.10.2020
Date when judgment was reserved : 01.10.2024
Date when judgment is pronounced : 23.12.2024
JUDGMENT
1. The present appeal has been filed under Section 374
of the Code of Criminal Procedure, 1973 ( hereinafter, referred to
as ‘Cr.P.C.’) against the judgment dated 23.08.2019 (hereinafter
referred to as ‘impugned judgment’), passed by the learned
Metropolitan Magistrate-11/Ld. MM-11, Central, Tis Hazari
Courts, Delhi (hereinafter referred to as the ‘Ld. Trial Court/Ld.
MM’) in case bearing, “State v. Jay Singh, CC No. 301495/2016″,
arising out of FIR No. 179/2015, P.S. Kasmere Gate, convicting
the appellant for the offences punishable under Sections 279/304A
of the Indian Penal Code, 1860 ( hereinafter referred to as ‘IPC‘),
and the consequent order of sentence dated 30.09.2020
(hereinafter referred to as ‘impugned order’), passed by the Ld.
Trial Court, awarding the appellant; simple imprisonment for a
period of 01 (one) month along with fine of Rs. 1,000/- (Rupees
One Thousand only), in default of payment of fine, to undergo
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ABHISHEK GOYAL
GOYAL Date:
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simple imprisonment for a period of 05 (five) days for the offence
under Section 279 IPC; and simple imprisonment for a period of
03 (three) months along with fine of Rs. 10,000/- (Rupees Ten
Thousand only), in default of payment of fine, he was further
sentenced to undergo simple imprisonment for a period of 05 (five)
days for the offence under Section 304A IPC, sentences to run
concurrently (hereinafter impugned judgment and impugned order
are collectively referred to as the ‘impugned judgment and order’).
2.1. Succinctly, the case of the prosecution against the
appellant is that on 11.04.2015, on receipt of information
regarding accident at ISBT vide PCR Call, DD No. 13PP was
registered and the concerned police officials proceeded towards
the accident spot, i.e., Counter No. 21, ISBT Gate. On reaching
there, Haryana Roadways bus bearing no. HR-37C-8462
(hereinafter referred to as the ‘offending vehicle’) was found in an
accident condition. Correspondingly, the font side of the bus, is
asserted to be found facing south, while the rear end of the bus was
found facing north (Counter No 21 के सामने एक हरियाणा रोड बेज की बस
No HR37C8462 Accident शुदा हालत में खड़ी थीं जो बस का अगला हिस्सा
दाक्षिण दिशा मे व पिछला हिस्सा उतर दिशा में था). Simultaneously, on the
rear side of the said bus, one Rajesh Singhla as well as his father-
in-law, namely, Pawan Kumar Bansal were found present in
distraught condition. Along with the said persons, one other
person, whose name was later on disclosed as Jay Singh (the
appellant herein) was found present, who was proclaimed by Sh.
Rajesh Singhla as the driver of the offending vehicle. Thereupon,
the victim is proclaimed to have been taken to Trauma Centre,
where he was declared brought dead. Consequently, statement of
Rajesh Singhla, eyewitness of the incident, was recorded by the
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ABHISHEK GOYAL
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concerned police officials. In his statement, the said
eyewitness/complainant inter alia avowed that on the said day, i.e.,
on 11.04.2015, he/the complainant along with his father-in-law,
Pawan Kumar Bansal (the deceased) had reached at ISBT K. Gate
at around 09:45 p.m., to help his father-in-law board the bus to
Patiala Punjab. At that point in time, the complainant and the
deceased were waiting at Chandigarh counter no. 21 for the bus,
destined for Rajpura, Punjab. As per the complainant, one Volvo
bus was waiting/standing in front of counter no. 21 and he went
near the said bus to enquire about the bus, scheduled to leave for
Rajpura, Punjab. In the meanwhile, as per the complainant, his
father-in-law started following him and as the complainant started
to return, near counter no. 29-30, the driver of one Haryana
Roadways bus for Ambala, bearing number, HR-37C-8462, whose
name was later on identified as Jay Singh S/o. Shri. Krishan,
suddenly backed/reversed the offending vehicle in high speed and
hit the deceased with the said bus. The complainant further
proclaimed that the deceased fell down in the said process the rear
tyre of the offending vehicle ran over the stomach of the deceased.
Thereupon, the complainant raised an alarm and pulled out the
deceased from underneath the offending vehicle. In the
meanwhile, the complainant declared that someone called 100
number, whereupon the police officials reached at the spot.
Notably, under said facts and circumstances, the instant FIR came
to be registered and the investigation ensued.
2.2. Appositely, upon conclusion of investigation in the
instant case, chargesheet was filed before the Ld. Trial Court for
the offence under Sections 279/304A IPC. Notably, consequent
upon Ld. Trial Court’s taking cognizance of the offence on
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ABHISHEK GOYAL
GOYAL Date:
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03.07.2015, notice in terms of the provisions under 251 Cr.P.C. for
the offences under Sections 279/304A IPC was framed against the
appellant on 03.03.2016 and the trial commenced. During the
course of trial, prosecution examined 09 (nine)
witnesses/prosecution witnesses, i.e., PW-1/W/SI Saroj Devi;
PW-2/Sh. Rajesh Singla; PW-3/Ct. Ajay Kumar; PW-4/ASI
Devraj; PW-5/W/Ct. Manita; PW-6/Virender Singh; PW-7/ASI
Jagbir Singh; PW-8/SI Bharat Ratan; and PW-9/SI Omvir Singh.
Relevantly, during the course of proceedings before the Ld. Trial
Court, the appellant admitted the MLC No. 203008 dated
11.04.2015 (Mark-A); death summary vide CIR No. 78746
(Mark-B) and death certificate no. 78746 ( Mark-C) pertaining to
deceased Pawan Kumar, prepared by Dr. D.P. Yadav; post mortem
report no. 683/15, dated 11.04.2015 prepared by Dr. A. Bajwa
(Mark-D); mechanical inspection report dated 13.04.2015
pertaining to bus no. HR-37C-8462 prepared by Sh. Arvinder
Singh; and identity of the offending vehicle, besides admitted that
he/the appellant would not dispute the statement under Section 161
Cr.P.C. of PW Rajiv Singh Singhla regarding the identification of
dead body pertaining to deceased, namely, Pawan Kumar, in terms
of the provisions under Section 294 Cr.P.C. on 05.09.2018.
Subsequently, on conclusion of prosecution evidence, recording of
statement of the appellant under Section 313/281 Cr.P.C. on
25.07.2019, appellant’s leading witnesses in his support, as well as
on conclusion of arguments on behalf of the appellant as well as by
State, as aforementioned, the Ld. Trial Court vide impugned
judgment and order, while holding the appellant guilty of the
offences punishable under Sections 279/304A IPC, sentenced him
in the manner, as noted hereinabove.
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3.1. Learned Counsel for the appellant vehemently
contended that the impugned judgment and order were passed by
the Ld. Trial Court on mere conjunctures, surmises and in
contravention of the settled principles of law, deserving their
setting aside at the outset. In this regard, Ld. Counsel outrightly
submitted that the Ld. Trial Court failed to appreciate that in the
instant case, there are numerous gaping holes in the case put forth
by the prosecution and that the prosecution’s story does not inspire
any confidence, nor appeals to the senses of a prudent man. It was
further submitted that a perusal of the testimony(ies) of the various
witnesses, who were examined before the Ld. Trial Court would
clearly demonstrate that there are glaring, and material
contradictions and the Ld. Trial Court has committed grave error
by not considering the same, leading to gross miscarriage of justice
to the appellant. In particular, Ld. Counsel fervently argued that
the Ld. Trial Court failed to consider that when PW-2/Sh. Rajesh
Singal admittedly accompanied the deceased to the Hospital, the
reasons for non-specification of PW-2’s name under the
deceased’s MLC is not forthcoming. Even otherwise, as per Ld.
Counsel for the appellant, testimony of PW-2 is not reliable and
trustworthy for the reason that PW-2’s presence on the spot is not
proved beyond a pale of doubt, besides PW-2 is an interested
witness being related to the deceased. In this regard, Ld. Counsel
fervently averred that the reasons for PW-2’s not making call at
100 number, despite being in possession of two mobile phones at
the relevant point in time is not forthcoming. As per the Ld.
Counsel, the prosecution has further failed to prove the presence of
PW-2 on the spot by adducing CCTV footage of the cameras
installed near the vicinity of alleged place of occurrence. Even
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GOYAL Date:
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otherwise, as per the Ld. Counsel the factum of correct series of
incident leading to demise of the deceased is not forthcoming from
the MLC or death certificate of Sh. Pawan Kumar. Ld. Counsel
further submitted that there is contradiction in so far as PW-3 and
PW-7 asserted that PW-2 remained in the Hospital till 02:00 p.m.
and thereafter left the Hospital with Ct. Ajay, however, PW-2
deposed that he was called to the police station in the evening on
the date of occurrence, where his/PW-2’s statement was recorded
and site plan, prepared. Ld. Counsel further submitted that PW-2
deposed that two police officials reached at the spot and took the
deceased to Trauma Centre, however, nowhere in his deposition,
PW-2 affirmed that he went to the Trauma Centre along with the
police officials. Ld. Counsel further submitted that the manner of
deposition of PW-2 is not natural, unreliable and unworthy of
credit, which fact, Ld. Trial Court failed to consider while passing
the impugned judgment. In this regard, it was further asserted by
the Ld. Counsel that the Ld. Trial Court failed to appreciate that
where there is sole material witness in a case, deep scrutiny is
required, which is grossly wanting in the present case. It was
further submitted that in the instant case, PW-2 was cross
examined by Ld. Addl. PP for the State for filling in the dent of
deposition of PW-2, without the permission of the Court, despite
which, two views remained on record. It was further submitted that
there is contradiction even in the deposition of PW-6 and PW-8 in
so far as it relates to the issuance of notice under Section 133 of the
Motor Vehicles Act, 1988 (hereinafter referred to as the ‘MV Act‘)
and receipt of information pursuant thereto.
3.2. Learned Counsel for the appellant further contended
that the Ld. Trial Court failed to appreciate that as per the
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GOYAL Date:
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statement of PW-2, tyres of the offending vehicle ran over the
belly of the deceased and he was removed from underneath the
said bus, despite which, as per Ld. Counsel, no dangerous injury is
demonstrable on the body of the deceased in his post-mortem
report. Even otherwise, the deceased is asserted to be found
standing with PW-2 immediately after the incident, belying the
case of the prosecution. In this regard, it was further submitted that
in case the deceased came under the rear tyre of the offending
vehicle, the genital parts as well as the ribs (right and left) of the
deceased would have been crushed due to heavy blunt force impact
of the offending vehicle, however, as per the Ld. Counsel, as per
the documents pertaining to deceased no ribs and genital parts of
the deceased are noted to be crushed. It was further submitted that
even otherwise, in the instant case neither material witnesses of the
accident were examined by the police nor series of investigation
steps taken by the police give credence to the testimony of PW-2 in
the present case. Ld. Counsel further submitted that the Ld. Trial
Court has even failed to consider that the person by whom the first
information of the incident was passed on 100 number was not
even examined. Further, as per Ld. Counsel, Ld. Trial Court did
not even consider that ISBT is a place where so many passengers,
drivers, conductors, helpers, officials, etc., remain present in the
morning hours, however, the prosecution deliberately opted not to
produce any such public persons as witnesses in the instant case.
Even otherwise, as per the Ld. Counsel, prosecution even failed to
demonstrate from the material on record, reasons for the offending
vehicle leaving the spot of incident prior to the admitted scheduled
time for departure.
3.3. Learned Counsel further submitted that there are
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material omissions in the statements/depositions of various
witnesses as well as lacunae in the investigation process. In this
regard, it was submitted that PW-2, though, admittedly remained
with the deceased from 09:45 a.m. to 03:30 p.m., however, he
never informed his relatives/friends about the incident. Ld.
Counsel further asserted that as per death certificate/Mark-C of the
deceased, death of the deceased was resultant due to cardiac arrest,
however, in the present case the death should have occasioned due
to blunt impact and crushing of vital parts of the deceased’s body.
Even otherwise, as per the Ld. Counsel, no blood was seen oozing
from the body of the deceased and no intestine/internal organs of
the deceased was found oozing out of the deceased’s body. Ld.
Counsel further strenuously reiterated that there are major
contradictions in the deposition of the prosecution witnesses,
besides no CCTV camera have been placed on record to support
the version put forth by the prosecution. Further as per Ld. Counsel
for the appellant there has been a delay in registration of FIR and
the material placed on record clearly demonstrate that PW-2 was
planted by the police officials to falsely implicate the appellant in
the instant case. Ld. Counsel further submitted that the Ld. Trial
Court, while passing the impugned judgment failed to consider the
testimony of DW-1 in the instant case, being independent witness.
As per the Ld. Counsel, the Ld. Trial Court further failed to
consider that the appellant was falsely implicated in the present
case by wrongful apprehension while he was on his way to
Ambala. Ergo, as per the Ld. Counsel the appellant is totally
innocent and has been falsely roped in the present case by bias and
prejudicial investigation. Further, as per the Ld. Counsel, the
investigation in the instant case has been conducted in an
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extremely shoddy and faulty manner as well as the safeguards
provided under the various provisions of law have been utterly
disregarded by the police officials to the grave prejudice of the
appellant. Further, as per the Ld. Counsel it has not been proved
from the material placed on record that the deceased was not
negligent at the time of commission of offence. Accordingly, Ld.
Counsel submitted that not only did the Ld. Trial Court failed to
consider the truth of circumstances and passed its
judgment/decision in haste, rather, did not properly
appreciate/examine the facts of the present case, wrongly holding
the appellant guilty of the aforementioned offences. Further, as per
the Ld. Counsel even due and proper consideration/mitigating
factors were not considered by the Ld. Trial Court while passing
the impugned order/order of sentence in the instant case.
Consequently, the Ld. Counsel inter alia prayed that the present
appeal be allowed, and the impugned judgment and order be set
aside or in the alternate, relaxation be granted, releasing the
appellant on probation/ Section 4 of the Probation of Offenders
Act, 1958 (hereinafter referred to as the ‘Probation of Offenders
Act‘). In support of the said contentions, reliance was placed upon
the decisions in; Surajmal v. State of Delhi, (1979) 4 SCC 725;
Raju v. State of Maharashtra, 1997 SCC (Crl.) 894; Varkey Joseph
v. State of Kerala, 1993 Cri.LJ 2010; Jagir Singh v. State (Delhi
Administration), 1975 Cri.LJ 1009; Din Dayal v. Raj Kumar @
Raju & Ors., 1999 Cri.LJ 467; Braham Dass v. State of H.P., 2009
Cri.LJ 4297; and Shri. Prakash v. State Govt. of NCT of Delhi, 137
(2007) DLT 119.
4. Per contra, Ld. Addl. PP for the State submitted that
the impugned judgment and order were passed by the Ld. Trial
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Court after due appreciation of the facts and circumstances of the
case as well as in consonance with the settled judicial precedents.
Ld. Addl. PP for the State further submitted that the testimony of
the eyewitness/PW-2 has not only been consistent, rather,
unblemished as well as lucidly points towards the only inference of
guilt of the appellant. In this regard, it was submitted by the Ld.
Addl. PP for the State that it is settled law that conviction can be
based on the sole testimony of a witness if it inspires confidence,
which in the instant case is sufficiently established from the
unwavering testimony of the eyewitness/PW-2. As per the Ld.
Addl. PP for the State, the facts and circumstances put forth as well
as the evidence placed on record, unerringly point out towards the
guilt of the appellant and that no fault can be attributed to the
finding of the Ld. Trial Court, which is based on proper
appreciation of facts as well as law. Accordingly, Ld. Addl. PP for
the State submitted that the present appeal deserves to be
dismissed at the outset, as grossly malicious and devoid of merits.
5. The arguments of Ld. Counsel for the appellant as
well as that of Ld. Addl. PP for the State have been heard and the
record(s), including the Trial Court Record, written submissions
filed on behalf of the appellant and the aforenoted case laws,
thoroughly perused.
6. At the outset, this Court deems it apposite to
enunciate the scope of jurisdiction of this Court in an appeal. In
this regard, this Court it is pertinent to outrightly make a reference
to the decision of the Hon’ble Supreme Court in Padam Singh v.
State of U.P., (2000) 1 SCC 621, wherein the Hon’ble Court, while
delving into the ‘scope an ambit’ of appellate court’s jurisdiction
inter alia noted as under;
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“2. … It is the duty of an appellate court to look
into the evidence adduced in the case and arrive at an
independent conclusion as to whether the said
evidence can be relied upon or not and even if it can be
relied upon, then whether the prosecution can be said
to have been proved beyond reasonable doubt on the
said evidence. The credibility of a witness has to be
adjudged by the appellate court in drawing inference
from proved and admitted facts. It must be
remembered that the appellate court, like the trial
court, has to be satisfied affirmatively that the
prosecution case is substantially true and the guilt of
the accused has been proved beyond all reasonable
doubt as the presumption of innocence with which the
accused starts, continues right through until he is held
guilty by the final court of appeal and that
presumption is neither strengthened by an acquittal
nor weakened by a conviction in the trial court…”
(Emphasis supplied)
7. Correspondingly, the Hon’ble Apex Court in
Narendra Bhat v. State of Karnataka, (2009) 17 SCC 785, iterated
in respect of the foregoing as under;
“3. This Court has in a series of judgments held
that a court exercising appellate power must not only
consider questions of law but also questions of fact
and in doing so it must subject the evidence to a
critical scrutiny. The judgment of the High Court must
show that the Court really applied its mind to the facts
of the case as particularly when the offence alleged is
of a serious nature and may attract a heavy
punishment.”
(Emphasis supplied)
8. Quite evidently, from a conjoint reading of the
aforenoted judicial dictates it can be perspicuously deduced that
the jurisdiction of this Court in an appeal extends to reappreciation
of the entire material placed on record of the trial court and to
arrive at an independent conclusion as to whether the said evidence
can be relied upon or not. In fact, as aforenoted, court(s), while
exercising appellate power is not required to consider the question
of law, rather, also question of facts to affirmatively reach a
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conclusion of guilt or innocence of an accused. In fact, it is trite
law1 that non-re-appreciation of the evidence on record in an
appeal may affect the case of either the prosecution or even the
accused. Needless to reemphasize that the appellate court is to be
further wary of fact that presumption of innocence of an accused,
even extents until an accused is held guilty by the final court of
appeal and that such a presumption is neither strengthened by an
acquittal nor weakened by a conviction in the trial court.
9. Therefore, being cognizant of the aforesaid
principles, however, before proceeding with the determination of
the rival contentions of the parties, it would be pertinent to
reproduce the relevant provisions under IPC, for the purpose of
present adjudication, as under;
“279. Rash driving or riding on a public way-
Whoever drives any vehicle, or rides, on any public
way in a manner so rash or negligent as to endanger
human life, or to be likely to cause hurt or injury to
any other person, shall be punished with
imprisonment of either description for a term which
may extend to six months, or with fine which may
extend to one thousand rupees, or with both.
*** *** ***
304-A. Causing death by negligence-Whoever
causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide
shall be punished with imprisonment of either
description for a term which may extend to two years,
or with fine, or with both.”
(Emphasis supplied)
10. Notably, it is observed from perusal of the aforesaid
provisions that the essential ingredients 2 to constitute an offence
punishable under Section 279 IPC are, “there must be rash and
negligent driving or riding on a public way and the act must be so
1
State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
2
Vinod Kumar v. State, 2011 SCC OnLine Del 4347.
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as to endanger human life or be likely to cause hurt or injury to any
person.” Concurrently, the Hon’ble High Court of Delhi in Ras
Bihari Singh v. State (NCT of Delhi), 2017 SCC Online Del
12290, while explicating the ingredients of the provisions/
offence(s) under Sections 279/304A IPC inter alia observed as
under;
“9. To constitute an offence under Section 279
IPC, it must be shown that the person was driving the
vehicle in a rash or negligent manner. Criminal
negligence or criminal rashness is an important
element of the offence under Section 279 IPC.
*** *** ***
11. In a road accident case, to convict a person for
the offence punishable under Section 304-A IPC, the
prosecution is required to bring on record the basic
requirement of the said Section i.e. “Rash or
Negligent Act” with following conditions:
1) There must be death of the person in question;
2) that the accused must have caused such death;
and
3) that such act of the accused was rash or negligent
and that it did not amount to culpable homicide.
*** *** ***
13. Section 304A which deals with unintentional
death caused by doing any rash or negligent act of the
offender. The applicability of this Section is limited to
rash or negligent acts which cause death but fall short
of culpable homicide amounting to murder or
culpable homicide not amounting to murder. To bring
an offence within the ambit of Section 304A, the
prosecution is required to bring on record that the act
was done by an accused and the death was caused due
to rash and negligent act.”
(Emphasis supplied)
11. Quite evidently, in order to sustain a conviction under
the provisions under Section 279 and Section 304A IPC, the
prosecution is inter alia required to prove that the driver of the
offending vehicle/the accused was driving the same in a rash or
negligent manner and further by doing such an act, rashly or
negligent, the offender endangered human life or caused death of
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any person, respectively. Palpably, rashness or negligence is one
of the key ingredients/elements to constitute the offences under the
said provisions. In this regard, it is apposite at this stage, to further
make a reference to the decision of the Hon’ble Supreme Court in
Rathnashalvan v. State of Karnataka, (2007) 3 SCC 474 , wherein
the Hon’ble Court, while explicating the contours of the terms,
‘rashness’ and ‘negligence’, observed as under;
“7. …Negligence and rashness are essential
elements under Section 304-A. 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 is the amount of care and
circumspection 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.
8. 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.”
(Emphasis supplied)
12. Analogously, the Hon’ble Apex Court, earlier in
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Mohd. Aynuddin v. State of A.P., (2000) 7 SCC 72, while
broaching the meaning/connotation of culpable rashness and
culpable negligence, noted as under;
“9. 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 due
care and caution. Culpable rashness lies in running the
risk of doing an act with recklessness and with
indifference as to the consequences. Criminal
negligence is the failure to exercise duty with
reasonable and proper care and precaution guarding
against injury to the public generally or to any
individual in particular. It is the imperative duty of the
driver of a vehicle to adopt such reasonable and
proper care and precaution.”
(Emphasis supplied)
13. Ergo, it is quite intelligible3 that negligence is the
breach of a duty caused by omission to do something which a
reasonable man guided by those considerations, which ordinarily
regulate the conduct of human affairs, would do or doing
something which a prudent and reasonable man would not do. In
contrast, a rash act is a negligent act done precipitately. In fact, it is
a settled law4, “Negligence is the genus, of which rashness is the
species.” Further, rashness consists5 in hazarding a dangerous or
wanton act with the knowledge that it is so, and that it may cause
injury. It is trite, the criminality lies in such a case in running the
risk of doing such an act with recklessness or indifference as to the
consequences. Needless to reiterate, under the provisions under
Sections 279/304A IPC6, “negligence indicates total negligence
on the part of the driver. It means that he was driving the vehicle in
such a negligent way which would stamp his driving by only word
3
Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284.
4
Prabhakaran v. State of Kerala, (2007) 14 SCC 269.
5
S.N. Hussain v. State of A.P., (1972) 3 SCC 18.
6
Jayprakash Laxman Tambe v. State of Maharashtra, 2003 SCC OnLine Bom 1176.
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“negligence”. Rashness indicates that he drives the vehicle in such
a way while driving he knows that by such driving, he is likely to
invite an accident but hopes that such accident may not occur.”
14. Consequently, being wary of the principles
hereinunder noted, this Court would now proceed with the
appreciation of the evidence and material placed on record. At the
outset, this Court deems it apposite to refer to the
deposition/testimony of the complainant/eyewitness/PW-2, Sh.
Rajesh Singla, who deposed before the Ld. Trial Court that on
11.04.2015, he/PW-2 along with his/PW-2’s father-in-law,
namely, Sh. Pawan Kumar Bansal had reached at ISBT as Sh.
Bansal had to go to Rajpura, Punjab. Further, as per PW-2, at
around 09:45 a.m., he/PW-2 and his father-in-law were standing at
Chandigarh bus count no. 21 and waiting for the bus for Rajpura,
Punjab. In front of counter no. 21, as per PW-2, one Volvo bus was
also parked and he/PW-2 went to the said Volvo bus in order to
know the departure time of bus which would proceed to Rajpura,
Punjab. Correspondingly, as per PW-2, his/PW-2’s father-in-law
also went along with him/PW-2 at that time and at the time of
returning to counter no. 21, PW-2’s father-in-law was behind him.
In the meanwhile, as per PW-2, one Haryana Roadways bus
bearing no. HR-37C-8462 was reversing very fast and without any
conductor or helper as no conductor or helper was outside the bus
to guide the driver. In the process of reversing the said bus, PW-2
further deposed that the accused driver of the bus namely Jay
Singh, whose name was revealed later on and duly identified by
PW-2 in Court, hit the deceased due to which, the deceased fell
down. Further, PW-2 asserted that thereafter, the rear tyre of the
said bus ran over the deceased. It was further proclaimed by PW-2
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that due to the said accident, the persons at the spot shouted and
thereafter, accused was again in the process of moving the bus over
the deceased and PW-2, immediately, pulled out his father-in-
law/deceased, who was lying on the road under said bus. After 4-5
minutes, as per PW-2, two police officials reached at the spot and
took his/PW-2’s father-in-law in a TSR to the Hospital, where the
deceased was declared brought dead. PW-2 further declared that
the said accident happened due to the faulty and negligent driving
of accused/appellant. Correspondingly, as per PW-2, in the
evening, he/PW-2 was called in police station Kashmere Gate and
from there, they went to the spot. As per PW-2, the police officials
also recorded his statement (Ex. PW2/A), bearing PW-2’s
signatures at point A. PW-2 further proclaimed that the site plan
was also prepared on his directions, as Ex. PW2/B, bearing
signatures of PW-2 at point A. Further, as per PW-2, the IO also
seized the driving licence of accused/appellant in his/PW-2’s
presence vide seizure memo, Ex. PW2/C, bearing PW-2’s
signatures at point A. PW-2 also avowed that the said Haryana
Roadways bus was seized by the IO in his/PW-2’s presence vide
seizure memo, Ex. PW2/D, bearing PW-2’s signatures at point A.
PW-2 further asserted that the appellant was personally searched
and arrested by the IO at around 03:00 p.m. in PW-2’s presence
vide memos Ex. PW2/E and Ex. PW2/F, both bearing PW-2’s
signatures at point A, respectively. PW-2 correspondingly,
examined the offending vehicle bearing no. HR-37C-8462 from its
photographs (Ex. P1 to P7) produced before the Ld. Trial Court.
PW-2 also asserted before the Ld. Trial Court that his/PW-2’s
another statement was recorded in the Trauma Centre by the police
official on the basis of which, the FIR was registered and that in his
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said statement, he/PW-2 had narrated all the facts regarding the
incident to the police officials. Further, PW-2 proclaimed that two
police officials were with him, when they went to the spot from the
Hospital, however, he could not recollect their names due to lapse
of time.
15. Relevantly, in his cross examination, PW-3/Sh.
Suhail inter alia affirmed as under;
“XXXXXX by ****, Ld. Counsel for accused.
Q. Whether you have purchased any platform ticket
for going inside the ISBT Kashmere Gate.
A. No, platform ticket is required for going at the
platform.
I had not purchased the ticket as the counter was
not open for that particular bus at that time. The
schedule time of the Volvo bus was 10- 10:15 am, I do
not know the number of the said Volvo bus. My
father-in-law was having mobile phone at that time. I
do not remember the mobile number at this stage as it
was closed after the accident. My first statement was
recorded at the trauma centre at around 12 pm . We
remained at the trauma centre till 2-2.30 pm after the
accident. Thereafter, we again came to the spot and
remained there for about 30-45 minutes. I had not
made the 100 number call as I was not having mobile
phone at that time. It is wrong to suggest that I was not
present at the spot on the day of accident. It is also
wrong to suggest that my statement was recorded at
the police station, and I signed all the documents in the
police station at the instance of IO. It is wrong to
suggest that I am not eyewitness to the alleged
accident. The police officials might have recorded the
statement of others, however I am not sure about it.
Around 8-10 public persons gathered at the spot after
the accident. I am not sure whether some persons are
sitting in the bus or not. I had informed the police
official stating that no conductor or helper was there
with the bus in my statement. Witness is confronted
with his statement exhibited PW2/A where it is not so
recorded. I had informed the family members in the
trauma centre regarding the accident. My brother had
come to the Chowki when I made the call regarding
the accident from the hospital. I do not remember
whether his statement or signatures was obtained by
the IO. IO had not recorded statement of any of the
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police official in my presence. As far as I remember,
in my presence no signature of any police official was
obtained on the documents which I signed except of
the accused. It is wrong to suggest that all the
documents were prepared in the PS and signed the
same in the PS only. It is wrong to suggest that I am
deposing falsely.”
(Emphasis supplied)
16. Germane for the purposes of the present discourse to
make a reference to the testimony of PW-3/Ct. Ajay Kumar before
the Ld. Trial Court, who asserted that on 11.04.2015 at around
09:55 a.m., DD No. 13PP regarding accident was assigned to HC
Jagbir. Further, as per PW-3, on receipt of said DD, he/PW-3 along
with the IO went to the spot, i.e., in front of counter no. 21, ISBT,
where one Haryana Roadways bus bearing no. HR-37C-8462 was
found present in accidental condition, whose front portion was in
south direction and the rear end, was in the north direction.
Correspondingly, as per PW-3, the complainant, PW-2/Rajesh
Singla and his/PW-2’s father-in-law, Pawan Kumar Bansal were
found present there. It was further asserted by PW-3 that Pawan
Kumar Bansal was in injured condition and one person was also
standing there, who revealed his name as Jay Singh, upon enquiry.
Further, as per PW-3 the said person, Jay Singh disclosed that he
was the driver of the bus bearing no. HR-37C-8462, as well as
identified the appellant as accused Jay Singh in Court. PW-3
further proclaimed that HC Jagbir was also present at the spot and
the custody of the appellant was handed over to him. Thereafter, as
per PW-3, HC Jagbir told him/PW-3 to bring the auto/TSR from
the out gate of ISBT for taking the injured to the Hospital,
whereupon, PW-3 brought the TSR and he/PW-3 noted down the
number of the said TSR. PW-3 also asserted that, he/PW-3 along
with PW-2/Rajesh Singhla took the injured, namely, Pawan
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Kumar Bansal to Trauma Center in the said TSR and the
concerned Doctor, after checking, declared the injured, namely,
Pawan Kumar Bansal as brought dead. At around 10:45 p.m., as
per PW-3, HC Jagbir reached in the Hospital and collected the
MLC of the deceased, Pawan Kumar Bansal as well as, recorded
the statement of PW-2/Rajesh Singhla in the Hospital. PW-3
further avowed that tehrir was prepared on the basis of the said
statement and the same was handed over to PW-3 at around 12:00
p.m. for registration of FIR. Thereafter, PW-3 reached the PS at
around 12:20 p.m. and got the FIR registered. W/SI Saroj was the
duty officer at that time, as per PW-3. Subsequently, as per PW-3,
he reached chowki ISBT along with the copy of FIR and original
tehrir as further investigation was marked to SI Bharat Ratan.
PW-3 further proclaimed that the copy of FIR and original tehrir
was handed over to SI Bharat Ratan and subsequently, PW-3 along
with SI Bharat Ratan reached Trauma Center. PW-3 further inter
alia proclaimed that in order to avoid the traffic jam, the offending
vehicle was parked at the side by the accused/appellant and IO/SI
Bharat Ratan prepared the site plan at the instance of PW-2/Rajesh
Singhla. Markedly, PW-1/W/SI Saroj Devi corroborated the
factum of PW-3’s reaching the police station with tehrir and
registration of FIR consequent thereto. Pertinent to further refer to
deposition of PW-5/W/Ct. Manita, who asserted regarding the
factum of registration of DD No. 13PP in the instant case
pertaining to the receipt of information regarding the accident at
Chandigarh Counter, ISBT, Kashmere Gate, which, as per PW-5
was marked to HC Jagbir for taking necessary action on the said
DD number/entry.
17. Significantly, for the purpose(s) of present discourse,
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it is also apposite to refer to the deposition of PW-6/Virender
Singh, who asserted that on 11.04.2015, he/PW-6 was posted at
ISBT, Kashmere Gate on the post of conductor-cum-stand in-
charge of Haryana Roadways and that on the said day, he/PW-6
got information that bus No. HR-37C-8462, which was registered
in Haryana Roadways had committed accident at ISBT. PW-6
further asserted that the police official called him/PW-6 to produce
the documents of the above mentioned, as well as the information
about the driver. Thereafter, as per PW-6, he/PW-6 went to the
police force, ISBT and consequently, the police official gave
him/PW-6 a notice under Section 133 MV Act. Resultantly, as per
PW-6, he/PW-6 produced the duty roster of the driver, Jay Singh;
certified copy of RC; fitness certificate and Insurance, which were
Ex. PW6/A, Ex. PW6/B and Ex. PW6/C, respectively. PW-6
further asserted that he/PW-6 also produced an affidavit regarding
the same. Thereafter, as per PW-6, the police seized the same vide
seizure memo, Ex. PW6/D, bearing PW-6’s signatures at point A.
PW-6 further proved the departure entry of the bus on the day of
incident as Ex. PW6/E and the permit of the said bus as Ex.
PW6/F. It was further asserted by PW-6 that he/PW-6 also gave
duty register of the appellant on the day of incident, which is Ex.
PW6/G and further proclaimed that the police seized the same vide
seizure memo, Ex. PW6/H, bearing PW-6’s signatures at point A
and an affidavit which PW-6 had given to the police as Ex. PW6/I,
bearing PW-6’s signature at point A, seizure memo of the same is
Ex. PW6/J. In his cross examination, PW-6 affirmed that the
departure time of the bus/offending bus was 10:05 a.m., from the
ISBT, Delhi to Ambala. Noticeably, PW-7/ASI Jagbir Singh, in
his deposition before the Ld. Trial Court affirmed that on
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11.04.2015, he/PW-7 was posted as HC at PS Kashmere Gate and
on the said day, he/PW-7 was on emergency duty from 08:00 a.m.
to 08:00 p.m. at PP ISBT Kashmere Gate. On that day, as per
PW-7, W/Ct. Manita told him/PW-7 about the accident at PP
Kashmere Gate vide DD no. 13 PP and thereafter, he/PW-7 along
with Ct. Ajay visited at the spot , i.e., counter no. 21 and saw that
offending bus of Haryana roadways bearing No. HR-37C-8462
was standing at the spot in accidental condition and complainant,
namely, Rajesh Singla/PW-2 was also standing at the spot and one
injured lying on the ground in accidental condition. PW-7 further
proclaimed that the accused/driver, namely, Jai Singh was also
standing at the spot ad in the meantime, HC Devraj also reached at
the spot. Thereafter, as per PW-7, they shifted the injured, namely,
Pawan Singh to the Trauma Center along with Ct. Ajay through
auto and he/PW-7 also left for Hospital, leaving the HC Devraj,
accused/driver Jay Singh and offending bus at the spot. PW-7
further declared that he collected the MLC of the injured and
concerned Doctor told PW-7 that the injured was brought dead.
Thereafter, as per PW-7, he/PW-7 recorded the statement of the
complainant, namely, Rajesh Singla, who told them all about the
accident and that the said accident had taken place due to rash and
negligent driving of the appellant/accused/driver. After recorded
the statement of complainant, as per PW-7, he/PW-7 prepared
rukka (Ex. PW7/A), bearing PW-7’s signatures at point A and
handed over to same to Ct. Ajay for registration of FIR. Thereafter,
as per PW-7, further investigation was conducted through SI
Bharat Ratan. PW-7 further correctly identified the appellant as the
accused as well as the case property/offending vehicle from
photographs (Ex. P1 to P7), before the Ld. Trial Court. In his cross
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examination, PW-7 affirmed as under;
“XXXXXX by Sh. ***, Ld. Counsel for accused.
I reached at the spot at about 10:00 am but I do not
remember that how long time I was remained at the
spot. Site plan was prepared in my presence by IO/SI
Bharat Ratan. I do not remember if I had signed the
said site plan. I recorded the statement of complainant
at the hospital. It is wrong to suggest that complainant
Rajesh Singla was not present at the spot and I took
him at the spot and recorded his false statement later
on at PS. It is wrong to suggest that I did not visit at the
spot. It is wrong to suggest that all the documents were
prepared by the IO at the PS later on or that my
signature were obtained at PS later on. It is wrong to
suggest that accused/driver was falsely implicated in
the present case. It is wrong to suggest that I am
deposing falsely.”
(Emphasis supplied)
18. Here, it is further apposite to refer to the testimony of
PW-8/SI Bharat Ratan before the Ld. Trial Court, wherein he
asserted that on 11.04.2015, he/PW-8 was present at PP ISBT
Kashmere Gate and on the said day, Ct. Ajay handed over a copy
of FIR and original rukka to him/PW-8 for further investigation.
Thereafter, as per PW-8, he/PW-8 went to Trauma Center along
with Ct. Ajay and met, HC Jagvir along with the complainant and
HC Jagvir handed over, a copy of MLC of the deceased to
him/PW-8. PW-8 further proclaimed that subsequently, he/PW-8
along with HC Jagvir, Ct. Ajay and the complainant, namely
Rajesh, reached at the spot, i.e., ISBT Kashmere Gate and,
he/PW-8 met HC Devraj at counter no. 21, who handed over the
accused/driver, namely, Jai Singh/the appellant to PW-8 and told
him/PW-8 that he/the appellant was driving the offending vehicle
and had committed the accident. Thereafter, as per PW-8, he/PW-8
interrogated the appellant and in the meantime, the concerned
depot in-charge of Ambala reached at the spot and he/PW-8 served
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a notice under Section 133 MV Act (Ex. PW8/A), bearing PW-8’s
signatures at point A, to the depot in-charge. As per PW-8, the
depot in-charge gave his reply, immediately on the said notice,
inter alia asserting that as per the roster, the appellant was driving
the offending vehicle, besides handed over the duty roster of
accused/driver/appellant, which is Ex. PW6/G. Thereafter, PW-8
is proclaimed to have arrested the accused/appellant and
conducted his personal search vide Ex. PW2/F and Ex. PW2/A,
both bearing PW-8’s signatures at point A. PW-8 further
proclaimed that he recorded the statements of witnesses under
Section 161 Cr.P.C. and subsequently, he/PW-8 along with Ct.
Ajay reached the Hospital and collected the death summary of the
deceased, as well as shifted the dead body in the Subzi Mandi
Mortuary house. On the following day, as per PW-8, he/PW-8
recorded the statements of relative of the deceased, namely, Rajesh
Singhla and Rajeev Singhla, who had identified the dead body
which were proved as Ex. PW8/B and Ex. PW8/C, both, bearing
PW-8’s signatures at point A. PW-8 further asserted that he/PW-8
also prepared handing over memo of the dead body of deceased,
which is Ex. PW8/D, bearing PW-8’s signatures at point A.
Correspondingly, as per PW-8, during the investigation, he/PW-8
clicked 07 (seven) photographs of the offending vehicle bearing
No. HR-37C-8462, which are Ex. P1 to P7, as well as, got
conducted the mechanical inspection of the offending vehicle from
Sh. Arvinder Singh, Mechanical expert. Thereafter, as per PW-8,
he/PW-8 handed over the present file to the MHC(M) Kashmere
Gate for sending the further investigation to MACT Cell North.
Markedly, under his cross examination, PW-8 inter alia denied the
suggestion that the reply to notice under Section 133 MV Act was
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tendered by the concerned depot in-charge under his/PW-8’s
compulsion. PW-8 further denied the suggestion that the
complainant, namely, Rajesh Singla was planted by the first IO to
give his statement and also that the documents in the instant case
were prepared while sitting in the police station. PW-8 further
denied the suggestion that the documents of the complainant on all
the documents, including the arrest memo and personal search
memo of the appellant were obtained later on, at the police station.
Relevantly, PW-9/SI Omvir Singh proclaimed that on 17.04.2015,
he/PW-9 was posted as a SI at MACT Cell, North and that
he/PW-9 was the third IO of the present case. On the said day, as
per PW-9, he/PW-9 served notice under Section 91 Cr.P.C. to the
licensee authority RTO Rohtak to verify the DL of the
accused/appellant (Ex. PW9/A, bearing PW-9’s signatures at point
A), which was found genuine. PW-9 further proclaimed that he
also served another notice to verify the RC and permit under
Section 91 Cr.P.C., and that both the documents were found
genuine, which are Ex. PW9/B and Ex. PW9/C, both, bearing
signatures of PW-9 at point A. PW-9 also asserted that he verified
insurance of the offending vehicle from the concerned authority
and the same was found genuine. Thereafter, as per PW-9,
he/PW-9 prepared the charge sheet and filed it before the court.
19. Conspicuously, in light of the foregoing discussion,
this Court would proceed with the determination of the rival
contentions on behalf of the appellant and that on behalf of the
State. As aforementioned, Ld. Counsel for the appellant has
contested the veracity of the testimony of PW-2/Sh. Rajesh Singla,
on the ground that he was an interested witness, being related to
the deceased. Further, as aforementioned, Ld. Counsel for the
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appellant has asserted that the complainant/PW-2 has falsely
named the appellant as the perpetrator of the alleged incident at the
behest of the concerned police officials/IO. However, the said
contentions of the Ld. Counsel for the appellant do not find favour
with this Court in light of settled law that merely because a witness
happens to be a relative of the victim of the crime, he/she cannot be
characterized as an ‘interested witness’. Correspondingly, the
superior courts7 have also persistently avowed that relationship is
not a factor to affect credibility of a witness as it is more often than
not, that a relative would not conceal the actual culprit and make
allegations against an innocent person. Reference in this regard is
made to the decision of the Hon’ble Supreme Court in State of
Maharashtra v. Ahmed Shaikh Babajan, (2009) 14 SCC 267 ,
wherein the Hon’ble Court, whilst confronted with an akin
situation, remarked as under;
“35. Very recently in Ashok Kumar Chaudhary v.
State of Bihar [(2008) 12 SCC 173: (2009) 1 SCC
(Cri) 339: AIR 2008 SC 2436] this Court had the
occasion to deal with the question of creditworthiness
of the evidence of the relatives of the victim. On a
review of several decisions on the point, including
Dalip Singh v. State of Punjab [AIR 1953 SC 364 :
1953 Cri LJ 1465 : 1954 SCR 145] , Masalti v. State of
U.P. [AIR 1965 SC 202 : (1965) 1 Cri LJ 226 : (1964)
8 SCR 133] and Rizan v. State of Chhattisgarh [(2003)
2 SCC 661 : 2003 SCC (Cri) 664] , it has been
observed that though the Court has to scrutinise such
evidence with greater care and caution but such
evidence cannot be discarded on the sole ground of
the interest of such witness in the prosecution. The
relationship per se does not affect the credibility of a
witness. Merely because a witness happens to be a
relative of the victim of the crime, he/she cannot be
characterised as an “interested” witness. The term
“interested” postulates that the person concerned has
some direct or indirect interest in seeing that the
accused is somehow or the other convicted either7
Rizan v. State of Chhattisgarh, (2003) 2 SCC 661.
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because he had some animus with the accused or for
some other oblique motive.”
(Emphasis supplied)
20. Apposite in the foregoing context to further refer to
the decision in State of Rajasthan v. Kalki, (1981) 2 SCC 752 ,
wherein the Hon’ble Apex Court, observed in an analogous
situation as under;
“7. As mentioned above the High Court has
declined to rely on the evidence of PW 1 on two
grounds: (1) she was a “highly interested” witness
because she “is the wife of the deceased”, and (2)
there were discrepancies in her evidence. With
respect, in our opinion, both the grounds are invalid.
For, in the circumstances of the case, she was the only
and most natural witness; she was the only person
present in the hut with the deceased at the time of the
occurrence, and the only person who saw the
occurrence. True, it is, she is the wife of the deceased;
but she cannot be called an “interested” witness. She
is related to the deceased. “Related” is not equivalent
to “interested”. A witness may be called “interested”
only when he or she derives some benefit from the
result of a litigation; in the decree in a civil case, or in
seeing an accused person punished. A witness who is
a natural one and is the only possible eyewitness in the
circumstances of a case cannot be said to be
“interested”. In the instant case PW 1 had no interest
in protecting the real culprit, and falsely implicating
the respondents.”
(Emphasis supplied)
21. Clearly, it is observed from above that mere
relationship of a witness with a victim, would not be a factor to be
read against the witness as the law is trite that a witness may be
labelled as ‘interested’ only when he/she derives some benefit
from the result of litigation. On the contrary, as aforenoted, the
superior courts have conscientiously asserted8 a relative would not
conceal the actual culprit and make allegations against an innocent
8
S. Sudershan Reddy v. State of A.P. MANU/SC/3139/2006: 2006CriLJ4033; and Kalegura Padma
Rao & Ors. v. The State of A.P., rep. by the Public Prosecutor, MANU/SC/7120/2007.
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person. In so far as the contention of Ld. Counsel for the appellant
pertaining to non-examination of any other public witness, except
the deceased’s son-in-law/complainant/PW-2 is concerned, this
Court is conscious that the law is settled 9 that there is no legal
hurdle in convicting a person on the testimony of a single/sole
eyewitness if his version is clear and reliable, for the principle of
law/rule of evidence is that the evidence has to be weighed and not
counted. Relevantly, in this regard, the Hon’ble Supreme Court in
Sunil Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367,
noted as under;
“9. Vadivelu Thevar case [AIR 1957 SC 614: 1957
Cri LJ 1000] was referred to with approval in the case
of Jagdish Prasad v. State of M.P. [1995 SCC (Cri)
160: AIR 1994 SC 1251] This Court held that 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 impediment in convicting a
person on the sole testimony of a single witness. That
is the logic of Section 134 of the Indian Evidence Act,
1872 (in short “the Evidence Act“). But, if there are
doubts about the testimony the courts will insist on
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 principle is that evidence has to be weighed
and not counted. On this principle stands the edifice of
Section 134 of the Evidence Act. The test is whether
the evidence has a ring of truth, is cogent, credible and
trustworthy, or otherwise.”
(Emphasis supplied)
22. Correspondingly, this Court unambiguous observes
that mere fact that the prosecution, opted not to produce the other
public persons, asserted to be present or would have been present
at ISBT Kasmere Gate at the time of incident as prosecution
witnesses before the Ld. Trial Court cannot be read against the
prosecution in light of the decision of the Hon’ble Supreme Court
9
Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
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in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200, wherein the
Hon’ble Court in a similar situation, held as under;
“34. A mere non-examination of the witness per se
will not vitiate the case of the prosecution. It depends
upon the quality and not the quantity of the witnesses
and its importance. If the court is satisfied with the
explanation given by the prosecution along with the
adequacy of the materials sufficient enough to
proceed with the trial and convict the accused, there
cannot be any prejudice. Similarly, if the court is of
the view that the evidence is not screened and could
well be produced by the other side in support of its
case, no adverse inference can be drawn. Onus is on
the part of the party who alleges that a witness has not
been produced deliberately to prove it.”
(Emphasis supplied)
23. Ergo, in light of the above, when the testimony of
PW-2/Sh. Rajesh Singal is scrupulously analyzed, it is observed
PW-2 inter alia deposed about the incident on 11.04.2015, when
he/PW-2 and his father-in-law/the deceased had reached at ISBT
and were present near counter no. 21, one Haryana Roadways bus
bearing no. HR-37C-8462/the offending vehicle was reversing
very fast without any conductor and in the process of reversing the
bus, the appellant, who was affirmed as the driver of the offending
vehicle, firstly, hit the deceased, due to which, he fell down and,
“thereafter the rear tyre of the said bus ran over him.” PW-2 further
proclaimed that due to the accident, the persons at the spot shouted
and thereafter, “accused was again in the process of moving the
bus over him and I immediately, pulled out my father-in-law who
was lying on the road under said bus…” Correspondingly, as per
PW-2, after 4-5 minutes, two police officials are asserted to have
reached the spot and took, PW-2’s father-in-law in a TSR to the
Hospital, whereupon, the concerned Doctor in the Hospital
declared him/father-in-law, as brought dead. PW-2 further
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deposed regarding the police officials recording his statements as
well as arresting and conducting the personal search of the
appellant vide Ex. PW2/F and Ex. PW2/E, respectively. As per
PW-2, the police officials also prepared the site plan (Ex. PW2/B)
in his/PW-2’s presence. Markedly, PW-2 also identified the
offending vehicle bearing registration no. HR-37C-8462 from its
photographs, as the one which was being driven by the appellant at
the time of accident and which had hit PW-2’s father-in-law,
which were Ex. P-1 to Ex. P-7.
24. Appositely, in order to belie the testimony of
PW-2/Sh. Rajesh Singal, Ld. Counsel for the appellant has
contended that name of the said witness/complainant/PW-2 does
not find mention in the MLC and that PW-2 had not asserted that
he did not accompany the deceased to the Hospital. However, the
said contentions, do not find much credence in light of the
testimony of the prosecution witnesses placed on record. In this
regard, this Court outrightly deems it pertinent to note that while
preparing the MLC, concerned Doctor is not required to seek
information on each and every person, who has accompanied the
victim, and it is sufficient that the name of even one of the
accompanying persons is specified therein. Clearly, under such
circumstances, presence of other persons/witnesses cannot be
belied for the sole reason that the name of such person is also not
specified under the MLC. In this regard, Court deems it apposite to
refer to the decision in Ramesh Kumar & Ors. v. State of Delhi,
MANU/DE/2494/2009, wherein the Hon’ble High Court of Delhi,
whilst confronted with an akin submission/assertion and repelling
the same, noted as under;
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“12. We are not impressed with above mentioned
submission. So far as first limb of argument is
concerned, it is against the facts of the case. Perusal of
testimony of PW1 Narender Kumar reveals that he has
categorically stated in his cross-examination that the
mother of the injured Kamal along with his father and
brother had requested him to take the injured to the
hospital and he has also stated that all of them sat in a
scooter with the injured for going to the hospital.
From this, it is apparent that PW8 Shakuntala Devi,
mother of the deceased had actually accompanied him
to the hospital. PW5 Kishan Lal, father of the
deceased, has also confirmed this fact by stating in
cross-examination that his wife also accompanied
them to the hospital. Non-mention of name of
Shakuntala Devi in the MLC is of no consequence.
While preparing the MLC, the concerned Doctor is
not supposed to seek information about each and
every person who had accompanied the deceased, it is
suffice to mention the name of any one person who
took the deceased to the hospital. Thus, we do not find
anything wrong if the Doctor has mentioned the name
of complainant Bablu only in the MLC Ex.PW11/A in
the column meant for the purpose. Thus, we find no
reason to suspect the presence of PW8 Shakuntala
Devi at the spot.”
(Emphasis supplied)
25. Markedly, in utter variance to the submission on
behalf of the appellant regarding PW-2’s non presence on the spot
at the time of incident, when the testimonies of PW-3/Ct. Ajay and
PW-7/ASI Jagbir Singh, are scrupulously analysed, the factum of
presence of appellant, complainant and the deceased at the spot of
incident and of the offending vehicle being determined to be at the
said spot, find credence/support. As aforenoted, both PW-3 and
PW-7 affirmed that when they reached at the spot, i.e., ISBT, in
front of counter no. 21 on receipt of DD No. 13PP on 11.04.2015,
the offending vehicle was found there in accidental condition and
the complainant/PW-2 as well as the deceased/Pawan Kumar
Bansal along with the appellant were present there. Thereafter,
both, PW-3 and PW-7 affirmed that the deceased was shifted to
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trauma centre in an auto, where PW-3 further affirmed that the
deceased was brought dead. Markedly, nothing substantial has
come forth under the testimonies of PW-3 and PW-7 to belie their
consistent version. On the contrary, as aforenoted, on a thorough
appreciation of the testimonies of the said witnesses, the
contention of the Ld. Counsel for the appellant pertaining to
PW-2’s alleged non presence at the spot of incident, appears to a
feeble attempt on the part of the appellant to unsuccessfully rebut
the prosecution’s case against the appellant. Here, it is further
pertinent to note here that as per Ld. Counsel for the appellant,
PW-2 affirmed that he signed all the documents in the police
station and that even his statement was recorded in the police
station. However, when the deposition of PW-2 is conscientiously
perused, the said contentions do not find favour with this Court.
On the contrary, it is observed from the cross examination of PW-2
that he specifically denied the suggestion regarding his statement
being recorded at the police station or the same being signed by
him in the police station, as otherwise contended by the Ld.
Counsel for the appellant. Needless to further mention that this
Court is further not convinced with the submission of Ld. Counsel
for the appellant that the non-examination of the driver of the
Volvo bus from whom the complainant had made enquiry is
detrimental to the prosecution’s case, as aforenoted, it is not the
number of witnesses, rather, the quality of witnesses which is
material for adjudication in a case. Needless to reiterate that PW-2,
in his deposition before the Ld. Trial Court, has been consistent
inter alia as to the manner of commission of offence, identity of the
driver as well as that of the offending vehicle, factum of
apprehension of the appellant as the driver of the offending vehicle
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on the date of occurrence, factum of reversing of offending vehicle
by the appellant at high speed and of endeavoring to run over the
deceased again despite shouts/cry by public, the appellant’s
apprehension and handing over to the concerned police officials,
police officials assisting the deceased being taken to the Hospital
and the deceased succumbing to his injuries.
26. Here, this Court deems it further apposite to deal with
the contention of Ld. Counsel for the appellant pertaining to the
alleged discrepancy/contradiction in the testimony of PW-2 in so
far as the complainant is asserted to have specified two mobile
phones in his complaint, however, did not assert that he made call
to the police officials on the date of the occurrence. However,
when the complaint and even PW-2’s deposition is analyzed, it is
observed that nowhere in his deposition, PW-2 asserted that he
was, in fact, in possession/carrying the said mobile numbers on the
date of occurrence. On the contrary, upon being questioned, PW-2
in his cross examination specifically asserted that he had not made
the 100 number call as he/PW-2 was not carrying his mobile phone
at that time. Markedly, despite the same, neither any suggestion
was made by/on behalf of the appellant regarding him being in
possession of two mobile phones or falsely deposing in this regard
in his cross examination, by/on behalf of the appellant. Even
otherwise, this Court is conscious of the fact that no universal rule
of conduct governs the behavior of the victims/witnesses of
incidents. As a matter of fact, it is quite compressible that
preceptors of a crime may react differently under such situations10;
“some witnesses get a shock, some become perplexed, some start
wailing and some run away from the scene and yet some who have
10
Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417
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the courage and conviction come forward either to lodge an FIR or
get themselves examined immediately.” Concomitantly, law does
not prescribe a behavioral pattern to be attributed to a
witness/victim to give sanctity to their otherwise consistent
deposition. Consequently, while applying the said principles to the
facts of the present case, this Court does not find itself convinced
with the submission of the Ld. Counsel for the appellant that even
if the complainant/PW-2 was carrying two mobile phones, as
otherwise contended by the appellant (though not proved from
record), mere non-calling 100 number by the complainant, would
be sufficient to discard the testimony of the said witness/PW-2
pertaining to the incident in question. On the contrary, it is
reiterated that PW-2, in his deposition before the Ld. Trial Court,
has been consistent.
27. Notwithstanding the foregoing, in order to unerringly
appreciate Ld. Counsel for the appellant’s contention pertaining to
alleged omission/contradiction in testimony of PW-2, it would be
also apposite to iterate and explore the judicial precedents
governing the law of contradictions in the testimony of the
witness. In this regard, this Court deems it apt to, here, make a
reference to the decision of the Hon’ble Supreme Court in State of
U.P. v. M.K. Anthony, (1985) 1 SCC 505, wherein the Hon’ble
Court inter alia observed as under;
“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 scrutinise the evidence more
particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the evidence
as a whole and evaluate them to find out whether it is
against the general tenor of the evidence given by the
witness and whether the earlier evaluation of the
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evidence is shaken as to render it 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 the witness gives evidence had the
opportunity to form the opinion about the general
tenor of evidence given by the witness, the appellate
court which had not this benefit will have to attach due
weight 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 witnesses may differ in some details
unrelated to the main incident because power of
observation, retention and reproduction differ with
individuals. Cross-examination is an unequal duel
between a rustic and refined lawyer. Having examined
the evidence of this witness, a friend and well-wisher
of the family carefully giving due weight to the
comments made by the learned counsel for the
respondent and the reasons assigned to by the High
Court for rejecting his evidence simultaneously
keeping in view the appreciation of the evidence of
this witness by the trial court, we have no hesitation in
holding that the High Court was in error in rejecting
the testimony of witness Nair whose evidence appears
to us trustworthy and credible.”
(Emphasis supplied)
28. Similarly, in this regard, the Hon’ble Apex Court in
Rammi v. State of M.P., (1999) 8 SCC 649, noted as under;
“24. When an eyewitness is examined at length it is
quite possible for him to make some discrepancies.
No true witness can possibly escape from making
some discrepant details. Perhaps an untrue witness
who is well tutored can successfully make his
testimony totally non-discrepant. But courts should
bear in mind that it is only when discrepancies in the
evidence of a witness are so incompatible with the
credibility of his version that the court is justified in
jettisoning his evidence. But too serious a view to be
adopted on mere variations falling in the narration of
an incident (either as between the evidence of two
witnesses or as between two statements of the same
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witness) is an unrealistic approach for judicial
scrutiny.”
(Emphasis supplied)
29. Evidently, from the conspectus of the above, it is
clearly deduced that minor discrepancies, which do not go into the
root of the matter and shake the basic version of the witnesses,
cannot be permitted to be annexed with any undue weight. In fact,
it is trite law11, the discrepancies which do not shake the basic
version of the prosecution and those which emanate due to normal
errors of perception or observation should not be given importance
and must necessarily be discarded. The rationale behind the same
is quite obvious, as elucidated by the Hon’ble Supreme Court in
State of U.P. v. Naresh, (2011) 4 SCC 324, inter alia recording as
under;
“30. In all criminal cases, normal discrepancies are
bound to occur in the depositions of witnesses due to
normal errors of observation, namely, errors of
memory due to lapse of time or due to mental
disposition such as shock and horror at the time of
occurrence. Where the omissions amount to a
contradiction, creating a serious doubt about the
truthfulness of the witness and other witnesses also
make material improvement while deposing in the
court, such evidence cannot be safe to rely upon.
However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters
which do not affect the core of the prosecution case,
should not be made a ground on which the evidence
can be rejected in its entirety. The court has to form its
opinion about the credibility of the witness and record
a finding as to whether his deposition inspires
confidence.
“9. Exaggerations per se do not render the
evidence brittle. But it can be one of the factors to
test credibility of the prosecution version, when
the entire evidence is put in a crucible for being
tested on the touchstone of credibility.” [Ed.: As
observed in Bihari Nath Goswami v. Shiv Kumar
Singh, (2004) 9 SCC 186, p. 192, para 9.]
11
Appabhai v. State of Gujarat, 1988 Supp SCC 241
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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. The omissions
which amount to contradictions in material particulars
i.e. go to the root of the case/materially affect the trial
or core of the prosecution’s case, render the testimony
of the witness liable to be discredited…”
(Emphasis supplied)
30. Ergo, to recapitulate, in order to disregard the
testimony of a witness, it is imperative that the same is replete with
material improvements, contradictions and variation. In contrast,
law provides for due concession to marginal variations and normal
discrepancies in the statement/testimony of a witness, which are
bound to occur due to normal errors of observation, namely, errors
of memory due to lapse of time or due to mental disposition such
as shock and horror at the time of occurrence. Consequently, when
the testimonies of prosecution witnesses in the instant case are
analyzed, mindful of aforenoted revered principles, this Court
finds itself difficult to be convinced with the contention of the Ld.
Counsel for the appellant that there are any material contradictions
to belie the testimony of the said witness. Undoubtedly, PW-2 in
his deposition before the Ld. Trial Court affirmed that the
appellant was backing the offending vehicle without the assistance
of a conductor, which fact he/PW-2 did not affirm in his statement
and was confronted on the same, however, same too, in the
considered opinion of this Court, not sufficient to discredit the
otherwise, consistent testimony of PW-2 inter alia as to the manner
of commission of offence, identity of the driver as well as that of
the offending vehicle, factum of apprehension of the appellant as
the driver of the offending vehicle on the date of occurrence,
factum of reversing of offending vehicle by the appellant at high
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speed and of endeavoring to run over the deceased again despite
shouts/cry by public, the appellant’s apprehension and handing
over to the concerned police officials, police officials assisting the
deceased being taken to the Hospital and the deceased succumbing
to his injuries, besides PW-2 has withstood the rigors of lengthy
cross examination, without anything material forthcoming from
the same. Needless to further reiterate that the presence of PW-2
on the spot of incident is affirmed under the testimonies of PW-3
and PW-7. Further, as aforenoted, appellant has failed to
demonstrate any motive or intention on either or any of the
prosecution witnesses to falsely implicate the appellant in the
present case. Correspondingly, the alleged discrepancy in the time
specified under the notice Ex. PW8/A i.e. 04.00 p.m. on
11.04.2015 and the arrest of the appellant on 11.04.2015 at 03.15
p.m. is concerned, same too would not, in the considered opinion
of this Court, come to the aid of the appellant in the absence of any
such question/ suggestion/evidence forthcoming in the testimony
of PW-6 or PW-8 as to the time when the notice under Section 133
MV Act was replied by PW-6. Needless to mention, mere
mentioning of time in the notice under Section 133 MV Act is not
sufficient to draw a presumption that the notice was replied
subsequent to the appellant’s arrest in the present case.
31. Here, it is further apposite to note that, though, this
Court is conscious of the settled law12 that merely driving a vehicle
with high speed does not denote driving the vehicle, rashly and
negligently. As a corollary, no culpability can be attributed to a
driver of a vehicle merely for the reason that the offending was
12
State of Karnataka v. Satish, (1998) 8 SCC 493; Ram Chander v. State, 2017 SCC Online Del 11763;
and Narender v. State (Govt. of NCT of Delhi), 2021 SCC Online Del 4729.
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being driven in high speed, for the want of clear and unambiguous
proof of rashness or negligence on behalf of/by such a
person/accused. However, it is equally trite that high speed may
amount to rash and negligence driving in certain circumstances, if
the evidence in respect of those circumstances is brought on record
through the prosecution witness. Reference in this regard is made
to the decision of Bombay High Court in Surendra Savlo Gaddi v.
State, 2014 SCC OnLine Bom 264, wherein the Hon’ble Court,
remarked as under;
“6. The fact of accident is proved by the
prosecution. However, whether the accident has
occurred due to rash and negligent driving of the
petitioner/accused is a question before the Court.
Evidence of all the three eye witnesses PW.2, Mr.
Jayesh Bugde, PW.3, Mr. Manoj Parab and PW.4, Mr.
Prashant Dessai disclose that they were travelling in
the bus at the relevant time, bus turtled as the driver
was driving the bus in speed and at the turn he was
trying to overtake a Maruti van and in this attempt, the
bus turned on the driver’s side. All the witnesses also
suffered injuries. The passengers in the vehicle which
meets with an accident are the best witnesses on the
point of rash and negligent driving of a driver. It is
true that high speed itself cannot be attributed to
rashness and negligence. However, high speed may
amount to rash and negligence driving in certain
circumstances. If evidence in respect of those
circumstances is brought on record through the
prosecution witness, then Court is required to
appreciate driving in high speed on the background of
those circumstances. In the present case, the witnesses
have brought a particular fact on record that the bus
turned on one side when the driver was trying to
overtake a Maruti van and secondly this attempt of
overtaking was made at the turn. This shows that the
petitioner/accused when driving the vehicle at high
speed has also indulged into overtaking the vehicle at
a turn. The combination of all these circumstances
thus attribute rashness and negligence to the accused.
The finding given by the learned Sessions Judge that
thus the prosecution has established that the accused
was rash and negligent is correct and has proved the
case under sections 279, 337 and 338 of the I.P.C.
Moreever, through out the trial and in the revision the
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accused adopted a defence that the road was uneven
and therefore due to bad road conditions, he lost
control over the vehicle. The learned Sessions Judge
while marshalling the evidence of the prosecution and
considering the defence of the accused has rightly
observed that if at all the road was uneven, then it was
obligatory on the part of the accused to be slow and
cautious. Considering this, I am inclined to maintain
the judgments and orders passed by the Sessions
Court. However, the learned counsel for the petitioner
at this stage submits that leniency on the point of
sentence be shown. Learned counsel submits that the
accused has no criminal record and he has given up
the job of driver Therefore, the sentence be reduced.”
(Emphasis supplied)
32. Remarkably, in the instant case, PW-2 did not merely
depose regarding the offending vehicle being backed/reversed by
the appellant in high speed, rather, also of the endevour of the
appellant to again run over the offending vehicle over the deceased
despite shouts from public, which, in the considered opinion of this
Court, sufficient to demonstrate rashness and negligence on the
part of the appellant. Ergo, under such circumstances, this Court is
in concurrence with the finding of the Ld. Trial Court that the
ingredients of offences under Section 279/304A IPC stand
attracted and proved beyond reasonable doubt against the
appellant.
33. Here it is relevant to note that another aspect on which
the appellant has fervently argued that no blood stains were found
on the offending vehicle and that no rupture or oozing of body
organs were present on the body of the deceased despite being run
over by the offending vehicle. In fact, the Ld. Counsel has further
submitted that as per PW-3 and PW-7, the deceased was found
standing when they had reached the spot, belying the factum of
accident in question. However, the said contentions are belied in
light of the deceased’s MLC (Mark-A) and post-mortem report
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(Mark-D), demonstrating presence of multiple lacerated wounds
and bruises over the deceased’s body and the factum of death of
the deceased consequent thereto. In fact, the post mortem report
also records of multiple internal fractures as well as opined the
cause of deceased’s death to be, “…hemorrhage and shock due to
injury to (L) lung & spleen, consequent upon blunt force
impact…” Needless to reiterate that the said documents have been
admitted by the appellant and the factum of deceased’s death and
being declared so/brought dead has been confirmed under the
testimonies of PW-2 and PW-3 before the Ld. Trial Court.
34. Pertinent at this stage to further note that it is further
strenuously averred on behalf of the appellant that the Ld. Trial
Court failed to consider the defence of the appellant. In particular,
as per Ld. Counsel, Ld. Trial Court failed to appreciate the
deposition of DW-1/Sunil Kumar to note that the appellant was
stopped by the concerned police officials while the offending bus
was in the process of leaving for Ambala and that the appellant was
falsely implicated in the present case. However, in this regard, this
Court outrightly notes that the said defence is raised for the first
time by the appellant before this Court. On the contrary, reference
is made to para (e) at page 11 of the impugned judgment, wherein
the Ld. Trial Court recorded the appellant’s defence before it/the
Ld. Trial Court, as under;
“…(e) It was the defence of the accused that as per
his duty roaster Ex. PW6/G, the offending vehicle was
to start at 10:05 am from Delhi and reach at Ambala
Cantt. At 2:30 pm on 11.04.2015. No document was
placed on record by the accused and no official
witness was summoned from the depot of Ambala,
Haryana Roadways to prove that the offending
vehicle had actually completed the journey on
11.04.2015 from ISBT, Delhi at 10:05 am and had
reached at Ambala Depot at 2:30 p.m. The document
C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 41 of 46
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2024.12.23
16:58:50
+0530
Ex. PW-6/G is merely a duty register showing the
details of the bus, diver, its schedule of 11.04.2015
and the destinations, it was to cover on the said date. If
the accused had not committed the offence on
11.04.2015 and had not been arrested by the IO on
11.04.2015 in this FIR, he would have plied the
offending vehicle on the route as per duty register Ex.
PW-6/G and registered his presence at Ambala Depot
or the other depots as per the schedule. However, no
such attendance register of Haryana Roadways or
testimony of any other official of Haryana Roadways
was recorded at the instance of the accused to prove
that he had completed his duty hours on 11.04.2015
and had travelled from Delhi to Ambala Cantt. and so
on…”
(Emphasis supplied)
35. Clearly, from above, it is noted that the appellant has
endeavored by means of the present appeal to build up a new
defence that he was held up as he was leaving for Ambala, quite
understandably, for the reason that the defence raised by the
appellant before the Ld. Trial Court was unappealing to the senses
of a prudent man, unfathomable and replete with inaccuracies.
Needless to mention, while no fault can be determined in the
aforenoted finding of the Ld. Trial Court, this Court is further not
convinced even with the new defence labored to be raised at the
present stage. Pertinent in this regard to further note that even on a
scrupulous analysis of DW-1’s deposition, the said defence does
not find any credence or support for DW-1 nowhere asserted that
the appellant was stopped by the police officials as he was leaving
for Ambala as per schedule at 10:05 a.m., even otherwise, the
appellant, in his statement, recorded in terms of the provisions
under Sections 313/281 Cr.P.C., raised no such defence, as either
raised before the Ld. Trial Court or now before this Court under
the present appeal. On the contrary, the appellant merely pleaded
registration of false case by the complainant against him. Needless
C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 42 of 46
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2024.12.23
16:58:54 +0530
to further mention that nowhere under the cross examination of
any of the prosecution witnesses, the appellant even put any
suggestion pertaining to the appellant’s false implication in the
present case as he was leaving for Ambala on the date of incident
as per the schedule of 10:05 a.m. Clearly, under such a situation, in
the considered opinion of this Court, not much credence can be
accorded to the appellant’s defence, basis/foundation of which was
never laid down in the appellant’s cross examination of the
prosecution witnesses, which is even otherwise never been the
appellant’s case before the Ld. Trial Court, as noted hereinabove.
Nonetheless, in this regard, reference is made to the decision of the
Hon’ble High Court of Madhya Pradesh in Suresh Chandra Gupta
v. State of Madhya Pradesh, Crl.M.C. No. 5117/2021 , dated
26.10.2021, wherein the Hon’ble Court, confronted with a similar
conundrum, responded as under;
“…It is basic principle of the trial that accused has
to establish his defence by cross examination of the
prosecution witness and it cannot be termed that the
accused defence shall start only at the stage of defence
evidence. By confronting the prosecution witness
with evidence and rebutting them by cross
examination is the defence of the accused at the stage
of prosecution evidence also. For free and fair trial,
the trial court is bound to allow the accused to furnish
all relevant documents for his defence at any stage.
The impugned order is per-se illegal and arbitrary.
Hence, he prayed that this petition should be allowed
and impugned order should be quashed and the
application filed by the petitioner under Section 91 of
Cr.P.C. for taking documents on record be also
allowed.”
(Emphasis supplied)
36. Conspicuously, quite recently, the Hon’ble Supreme
Court in Balu Sudam Khalde v. State of Maharashtra, 2023 SCC
OnLine SC 355, elucidating the purpose and object behind cross
examination of witness(es), noted as under;
C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 43 of 46 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.12.23 16:58:57 +0530
“43. The main object of cross-examination is to
find out the truth on record and to help the Court in
knowing the truth of the case. It is a matter of common
experience that many a times the defence lawyers
themselves get the discrepancies clarified arising
during the cross-examination in one paragraph and
getting themselves contradicted in the other
paragraph. The line of cross-examination is always on
the basis of the defence which the counsel would keep
in mind to defend the accused…”
(Emphasis supplied)
37. Pertinent to further reiterate that though, DW-1/Sh.
Sunil Kamar asserted that he was sitting in the offending vehicle
which has departed at 10:05 a.m. from ISBT, Kashmere Gate to
Ambala, however, DW-1 nowhere asserted that the appellant was
stopped /confiscated on road inside ISBT by the police officials
and wrongly booked in the present case as otherwise asserted now,
for the first time under Grounds Y and Z of the present appeal.
Clearly, the said defence/ground are not only an afterthought and
raised for the first time, without any foundational basis, as
aforenoted, rather, no reason for false implication/roping of the
appellant either by PW-2 or the concerned police officials is
emerging from the material placed on record.
38. Conclusively, in view of the above discussion, in
particular, in light of the unambiguous testimony of the
eyewitness/PW-2, read in conjunction with the testimonies of
PW-3 and PW-7 as well as corroborated from the testimonies of
PW-4 and PW-8, the ingredients of offences under Sections
279/304A IPC stand proved against the appellant herein. Needless
to mention, the appellant was identified and deposed as the
perpetrator of the offence by PW-2 in his deposition, besides duly
identified before the Ld. Trial Court as said perpetrator.
Correspondingly, no reasons for wrongful implication of the
C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 44 of 46
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2024.12.23
16:59:01
+0530
appellant in the present case are forthcoming under the testimonies
of prosecution witness, in particular, under the deposition of
PW-2, PW-3 and PW-7. Further, as aforenoted, related witness is
not synonymous with interested witness. Further, as aforenoted,
the appellant did not lead a foundation of its defence in the cross
examination of any of the prosecution witnesses, besides, the
defence now sought to be raised in the instant appeal for the first
time, itself is self-destructive and finds no corroboration even from
the testimony of DW-1/Sh. Sunil Kumar. Correspondingly, the
manner of vehicle being driven at high speed, while reversing the
vehicle and the persistent endeavor of the appellant to run over the
deceased despite outcry/shouts and initial run over, are in the
considered opinion of this Court, sufficient to demonstrate
rashness and negligence on the part of the appellant. Needless to
further reiterate that the factum of demise of the deceased
consequent to the accident in question is neither denied nor
rebutted, rather, stands proved from the deceased’s postmortem
and MLC records. Ergo, under such circumstances, this Court is in
concert with the Ld. Trial Court’s observation that the prosecution
has been able to prove its case ‘beyond reasonable doubt’ against
the appellant herein for the offences under Sections 279/304A IPC.
Needless to further mention that though it holds highest regard for
the decisions relied upon by the Ld. Counsel for the appellant in
support of his contentions, however, the same would not come to
the aid of the appellant, in the manner as proposed, as the facts and
circumstances of the present case are clearly distinguishable.
39. Accordingly, in light of the foregoing explication/
discussion, the present appeal deserves to be dismissed and is
hereby dismissed. Accordingly, the judgment dated 23.08.2019,
C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 45 of 46
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2024.12.23
16:59:05
+0530
passed by Ld. Metropolitan Magistrate-11/Ld. MM-11, Central,
Tis Hazari Courts, Delhi in case bearing, ” State v. Jay Singh, CC
No. 301495/2016″, arising out of FIR No. 179/2015, P.S. Kasmere
Gate, convicting the appellant for the offences punishable under
Sections 279/304A IPC is hereby upheld. Let the appellant,
namely, Jay Singh be heard on sentence.
40. In the meanwhile, issue notice to SHO, Kashmere
Gate to submit report of antecedents of the appellant. Also, issue
notice to concerned Jail Superintendent to submit conduct report
and nominal roll of the convict, namely, Jay Singh.
Correspondingly, let a copy of this judgment along with the
affidavits filed by the appellant and State, in terms of the decision
of the Hon’ble High Court of Delhi in Karan v. State NCT of
Delhi, Crl. Appeal 352/2020, dated 27.11.2020 (DHC), be
circulated to DLSA, Central, Tis Hazari Court, to file Victim
Impact Assessment Report, on or before the next date of hearing.
Correspondingly, issue notice to the probation officer to file a
report in terms of the provisions under Sections 3/4 of the
Probation of Offenders Act, returnable for the next date of hearing.
Copy of the present judgment be annexed along with the notice.
Further, a copy of the present judgment be given dasti to the
appellant.
Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2024.12.23 16:59:10 +0530 Announced in the open Court (Abhishek Goyal)
on 23.12.2024. ASJ-03, Central District,
Tis Hazari Courts, Delhi
C.A. No. 167/2020 Jay Singh v. State (NCT of Delhi) Page 46 of 46