State vs Rajesh Kumar @ Rakesh 2024 Latest Caselaw 1423 Del

Delhi High Court State vs Rajesh Kumar @ Rakesh on 20 February, 2024 Author: Sudhir Kumar Jain Bench: Sudhir Kumar Jain $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 12th December, 2023 Decided on: 20th February, 2024 + CRL.A. 882/2023 STATE .....Appellant Through: Mr. Utkarsh, APP for the State with SI Sunder Singh, P.S. Nangloi. V RAJESH KUMAR @ RAKESH ..... Respondent Through: Mr. Ravi Kumar, Advocate with respondent in person. CORAM HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN JUDGMENT 1. The present appeal is filed by the appellant/State under section 378(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") to impugn the judgment dated 29.08.2019 (hereinafter referred to as "the impugned judgment") passed by the court of Shri Puneet Nagpal, Metropolitan Magistrate-10, West, Tis Hazari Courts, Delhi (hereinafter referred to as "the trial court") whereby the respondent was acquitted in FIR bearing no. 0031/2007 Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 1 17:05:23 registered under sections 279/337/304A of the Indian Penal Code (hereinafter referred to as "IPC") at P.S. Nangloi. 2. The respondent was implicated as accused in FIR bearing no. 0031/2007 registered under sections 279/337/304A IPC at P.S. Nangloi which was got registered on the basis of statement made by Nitin Kumar (hereinafter referred to as "the complainant"). The complainant stated that he along with his friend Joginder on 09.01.2007 at about 7:40 am after taking tuition were going towards Nangloi Ext. via P.C. Kaushik Wali Gali on scooter bearing registration no. DL 4SV 3074 being driven by Joginder and the complainant was sitting on the pillion seat and reached at main chowk near House no C-71, then one Maruti car bearing registration no. DL 6CH 4547 (hereinafter referred to as "the offending vehicle") being driven in very fast speed came and struck against scooter, as a result of which they fell down and sustained injuries. Joginder received serious head injuries and was removed to hospital where Joginder (hereinafter referred to as "the deceased") was declared as brought dead. The driver namely Rajesh Kumar was driving the offending vehicle rashly and negligently. Rajesh Kumar Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 2 17:05:23 (hereinafter referred to as "the respondent") was arrested during the investigation.The investigation in pursuance of FIR bearing no. 0031/2007 was completed and charge sheet was filed in court of the concerned Metropolitan Magistrate. The respondent was put to trial. 2.1 The court of Shri Gaurav Rao, Metropolitan Magistrate, West, Tis Hazari Courts, Delhi vide order dated 04.08.2009 gave notice under section 251 of the Code to the respondent to which the respondent pleaded not guilty and claimed trial. The prosecution in support of its case examined 13 witnesses including the sole eye witness i.e. the complainant as PW3. The complainant as PW3 deposed that he along with the deceased on 09.01.2007 was going from P.C. Kaushik Wali Gali to main extension road, Nangloi on scooter bearing registration no. DL 4SV 3074 being driven by deceased and the complainant was sitting on pillion seat and reached near main chowk, then offending vehicle being driven in very fast speed came and struck against the scooter. The complainant and the deceased fell down on the ground and sustained injuries. The complainant became unconscious and after regaining consciousness noticed that the deceased was bleeding from the head. The tutor of Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 3 17:05:23 the complainant and the deceased reached at the spot and the deceased was removed to hospital in the offending vehicle. The respondent was identified as driver of the offending vehicle at time of the accident. The accident took place due to the negligence of the respondent as he suddenly came from a gali without blowing any horn and in fast speed and struck against the scooter. The complainant also proved statement as Ex. PW3/A. The prosecution also examined other police officials who remained connected and participated in the investigation including the Investigating Officer ASI Daya Chand as PW12. The statement of the respondent was recorded under section 313 of the Code was recorded vide proceedings dated 09.04.2018 wherein he pleaded innocence and false implication. The respondent preferred not to lead defence evidence. 2.2 The trial court vide the impugned judgment acquitted the respondent for the offences punishable under sections 279/337/304A IPC and held as under:- 27. To appreciate the above-stated arguments advanced on behalf of the accused, it is important to sift carefully, the entire evidence, both ocular and documentary, adduced by the prosecution to bring home the guilt of the accused. To Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 4 17:05:23 begin with, a perusal of the FIR, which was lodged on the statement of injured Nitin shows the accused Rajesh Kumar was apprehended from the spot and a prayer was made by him to initiate appropriate legal proceedings against the accused. However, injured Nitin/PW3 has in his deposition stated that the accused had fled from the spot and that he had himself seen the accused running from the spot leaving the offending vehicle at the spot after causing the accident. At the same time, it was deposed by PW3 that some tutor bhaiya had taken the injured/PW3 and the deceased Joginder to the hospital in the same vehicle/van which had caused the accident. However, contrary to the deposition of PW3, other prosecution witnesses namely PW11 and PW12/IO, who were the police officials who had reached at the spot of the accident immediately after the accident, have deposed that they had found the offending vehicle and the scooter of PW3 in an accidental condition at the spot. The victim/injured persons or the accused was not found present at the spot. There are apparent material discrepancies in the testimony of PW3/eyewitness/injured, and therefore, the testimony of PW3 cannot be regarded of sterling quality and thus cannot be regarded as a gospel truth. Thus, I am not inclined to accept the testimony of PW3 at its face value and the same has to be approached with suspicion. The testimony of PW3 requires corroboration on materials aspects so as to form basis of the conviction of the accused. 28. At the same time, what raises further suspicion on the case of the prosecution is the fact that the owner of the offending vehicle/PW13 has categorically deposed that he had never given the offending vehicle to the accused on the day of the accident as the offending vehicle was parked at his house. This suspicion on the identity of the accused/driver further gets emboldened by the fact that no notice under section 133 M.V. Act. 1988 was ever served on PW13 during the course of the investigation to ascertain the identity of the driver of theoffending vehicle who as per the Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 5 17:05:23 testimony of the sole eyewitnessPW3 had fled from the spot. The prosecution witnesses (PW11 and PW12/IO) are inexplicably silent on manner of the investigation which lead them to decifer the identity of the driver of the offending vehicle and that too, within hours of the accident taking place. 29. Perusal of testimony of the prosecution witnesses reveals that there are discrepancies in the evidence lead by the prosecution. IO/PW12 had deposed that he had come back to the spotafter visiting Sonia Hospital along with the driver/accused and the injured/PW3/Nitin at about 10.30 am on the day of the accident. Contrary to the version of IO/PW12, PW-3 has deposed that he had remained admitted in the hospital for one day. Similarly, PW11 and PW12/IO have deposed that the documents namely Seizure memos, arrest memo etc. were made at the spot of the accident after the IO had returned to the spot at around 10.30 am. on the day of the accident. However, PW3 has deposed that he had appended his signatures on the seizure memos, arrest memo and other documents while he was admitted to the hospital. Thus, the testimony of PW3/eyewitness is not corroborated by the version deposed by IO/PW12 and PW11. It would not be exaggeration to say that the testimony of PW3 on one hand and of PW11 and PW12 on the other are mutually destructive and this is fatal to the case of the prosecution. 30. It is further pertinent to mention that PW3 has deposed that the colour of the car/van/vehicle which had hit their scooter was white whereas the colour of the offending vehicle is Red. At the same time, perusal of the mechanically inspection report of the offending vehicle records that there were fresh damages on the offending vehicle such as broken light, indicator etc. However, the IO/PW12, who had arrived at the spot of accident has failed to seize any broken glass pieces of the such headlight, indicator light of the offending vehicle which musthave Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 6 17:05:23 been scattered at the spot of the accident, if the prosecution version is to be believed. Thus, these facts also raise grave doubts on the identity of the offending vehicle. 31. Thus, cumulatively seen, the prosecution has failed to prove beyond doubt the identity of the offending vehicle as well as the identity of the driver who was behind the wheels of the vehicle which had caused the accident in question. XXX 33. At the same time, it is important to underscore the established canon of criminal law that in order to pass a conviction in a criminal case, the accused "must be" guilty and not merely "may be" guilty. The mental distance between "may be" to "must be" guilty is a long one and must be travel not on surmises and conjectures, but by cogent evidence. In this case, the accused has successfully created a doubt in the story of the prosecution in respect of the fact that he was the one who was driving the vehicle which had caused the accident in question. And as per the settled law, the benefit of doubt must go to the accused. The material on record does not suggest that the accused "must be" guilty whichever way one looks at it. 34. In view of the above discussions, the present case appears to be a fit case where benefit of doubt can be extended to the accused. XXX 36. The accused Rajesh Kumar is hereby acquitted of the offences u/s 279/337/304-A IPC and is set at liberty. 3. The appellant/State challenged the impugned judgment on the grounds that the impugned judgment is not sustainable in law and Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 7 17:05:23 deserves to be set aside as the trial court acquitted the respondent erroneously by concluding that the respondent is entitled to benefit of doubt. The trial court ignored clinching evidence on record against the respondent on the basis of the hypothetical reasoning and did not appreciate the testimony of eye witness i.e. testimony of the complainant as PW3 who supported the prosecution case. The complainant as PW3 narrated the entire incident and explained the manner of rash and negligent act of the respondent. The respondent can be convicted on the sole testimony of the eyewitness i.e. the complainant/PW3 and has correctly identified the respondent. The trial court has ignored mechanical inspection reports in respect of scooter and offending vehicle. The minor contradictions in the testimony of the complainant/PW3 do not shake its trustworthiness and credibility. It was prayed that the impugned judgment be set aside and the respondent be convicted for offences under sections 279/337/304A IPC. 4. The Additional Public Prosecutor advanced arguments on the basis of the grounds of appeal and relied on Sunil Kumar V Govt. of NCT of Delhi, (2003) 11 SCC 367; Appabhai and another V State Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 8 17:05:23 of Gujarat, 1988 Supp SCC 241; Annareddy Sambasiva Reddy and others V State of Andhra Pradesh, (2009) 12 SCC 546 and Rammi alias Rameshwar V State of MP, (1999) 8 SCC 649. 4.1 The counsel for the respondent advanced oral arguments and also submitted written submissions wherein he stated that there are material contradictions in the testimony of the sole eye witness i.e. the complainant/PW3 and in the respective testimonies of PW11 and the Investigating Officer PW12. The counsel for the respondent argued that the appeal is liable to be dismissed. 5. It is reflecting from the impugned judgment that the trial court has discussed the testimony of the complainant/PW3 who was stated to be the sole eye-witness of the incident. The trial court in impugned judgment observed that the prosecution has proved that the respondent was driving the offending vehicle at time of accident and the accident was caused by offending vehicle. The trial court also discussed that the respondent sought acquittal primarily on the grounds that there was no evidence to prove that Maruti Van bearing no. DL 6CH 4547 was the offending vehicle and that the prosecution has failed to prove that the respondent was driving the offending Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 9 17:05:23 vehicle and the respondent had caused the accident. The trial court in impugned judgment observed that the respondent as per FIR which was got registered on basis of the statement of the complainant was apprehended at the spot, but the complainant as PW3 deposed that the respondent fled from the spot and that the complainant himself had seen the respondent running from the spot and leaving the offending vehicle at the spot after the accident. The complainant as PW3 also deposed that their tutor had removed the complainant PW3 and the deceased to the hospital in the same vehicle/van i.e. the offending vehicle which had caused the accident. However, PW11 and Investigating Officer PW12 who reached at the spot of the accident immediately after the accident deposed that they had found the offending vehicle and the scooter in accidental condition at the spot and the victim/injured or the respondent were not found present at the spot. The trial court accordingly opined that there are apparent material discrepancies in the testimony of the complainant as PW3 and as such the testimony of the complainant/PW3 cannot be regarded to be of sterling quality and as the gospel truth. The trial court was not inclined to accept the testimony of PW3 and observed Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 10 17:05:23 that the testimony of the complainant/PW3 requires corroboration on material aspects so as to form basis of the conviction of the respondent. 5.1 The trial court also observed in the impugned judgment that PW13 who was owner of the offending vehicle deposed that he never gave the offending vehicle to the respondent on day of the accident and the offending vehicle was parked at his house and said deposition further raised suspicion on the case of the prosecution. The trial court further expressed doubt on prosecution case as the Investigating Officer did not serve notice under section 133 of the Motor Vehicle Act, 1988 on PW13 to ascertain the identity of the driver of the offending vehicle who as per the testimony of the complainant/PW3 had fled from the spot. The trial court also noticed other discrepancies in testimony of prosecution witnesses. The trial court observed that the Investigating Officer PW12 deposed that he came back to the spot after visiting Sonia Hospital along with the respondent and the complainant PW3/Nitin at about 10:30 am on the day of the accident while the complainant/PW3 deposed that he remained admitted in the hospital for one day. PW11 and the Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 11 17:05:23 Investigating Officer PW12 have deposed that the documents namely seizure memos, arrest memo etc. were prepared at the spot after the Investigating Officer returned back to the spot at around 10:30 am on the day of the accident while the complainant/PW3 deposed that he had appended his signatures on the seizure memos, arrest memo and other documents while he was admitted in the hospital. Thus, the testimony of the complainant/PW3 was not corroborated by deposition of PW12 and PW11. The complainant/PW3 also deposed that the colour of the offending vehicle was white whereas the colour of the offending vehicle was red. 5.2 The trial court further observed that as per the mechanical inspection report of the offending vehicle, there were fresh damages on the offending vehicle such as broken light, indicator etc. but the Investigating Officer PW12 did not seize any broken glass pieces of the head light, indicator light of the offending vehicle which must have been scattered at the spot of the accident which raised grave doubts on the identity of the offending vehicle. In view these observations, the trial court held that the prosecution has failed to Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 12 17:05:23 prove the identity of the offending vehicle as well as the identity of the driver beyond doubt and accordingly acquitted the respondent. 6. The trial court placed reliance on the contradictions, variations and discrepancies as detailed and discussed hereinabove in testimonies of the prosecution witnesses. There are contradictions, discrepancies and variation in evidence led by the prosecution as highlighted by the trial court in the impugned judgment and also pointed out by the counsel for the respondent in arguments. It is an accepted legal position that mere marginal variations, contradictions, discrepancies or improvements in the statements of witnesses cannot be fatal to the case of the prosecution and only major contradictions, discrepancies or improvements on material facts can shake the very genesis of prosecution case and can create doubts as to the prosecution case. The Supreme Court in State of Punjab V Jagir Singh Baljit Singh and Karam Singh, AIR 1973 SC 2407 observed as under:- 23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 13 17:05:23 conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures. 6.1 The Supreme Court in Pawan Kumar @ Monu Mittal V State of Uttar Pradesh and Another, (2015) 7 SCC 148 held as under:- 35. When a witness 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. 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. 6.2 The Supreme Court in Bhagwan Jagannath Markad and others V State of Maharashtra, (2016) 10 SCC 537 observed as under:- 19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 14 17:05:23 are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness. 6.3 The Supreme Court in Thoti Manohar V State of A.P, Criminal Appeal No. 1739 of 2007 decided on 15.05.2012 observed that minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hyper- technical approach. The court while appreciating the evidence should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored. It was further observed that no evidence can ever be perfect for man is not perfect and man lives in an imperfect world. Thus, the duty of the court is to see with the vision of prudence and acceptability of the deposition regard being had to the substratum of the prosecution story. 6.4 The Supreme Court in Birbal Nath V The State of Rajasthan & others, Criminal Appeal no. 1587 of 2008 decided on Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 15 17:05:23 30.10.2023 relied on Rammi V State of M.P., (1999) 8 SCC 649 wherein it was held 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 witness) is an unrealistic approach for judicial scrutiny. The Supreme Court in Birbal Nath (supra) observed that lengthy cross examination of a witness may invariably result in contradictions but these contradictions are not always sufficient to discredit a witness. 6.5 The contradictions, variations and discrepancies in evidence led by the prosecution as pointed out by the trial court in impugned judgment and counsel for the respondent are minor and insignificant variations and do not affect the case of the prosecution. The statement Ex. PW3/A of the complainant/PW3 was recorded on 09.01.2007 while testimony of the complainant/PW3 was recorded Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 16 17:05:23 on 30.01.2013 during trial i.e. after lapse of considerable time. The complainant/PW3 was not expected to escape from making discrepancies but these discrepancies in the testimony of the complainant/PW3 are not incompatible with the credibility of his version about the accident. The discrepancies in prosecution evidence as relied on by the trial court are not touching the core of the case and are not enough to reject the prosecution evidence and in particular the testimony of the complainant/PW3 as a whole. The trial court has given undue importance to insignificant discrepancies in testimonies of the prosecution witnesses and adopted a hyper- technical approach. The trial court should not give much significance to minor discrepancies. The trial has committed factual and legal error while holding that the testimony of the complainant/PW3 cannot be regarded of sterling quality and as the gospel truth and refused to accept the testimony of PW3. 7. Section 279 IPC deals with rash driving or riding on a public way. It reads 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 Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 17 17:05:23 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. Section 337 IPC deals with causing hurt by act endangering life or personal safety of others. It reads as under;- 337.Causing hurt by act endangering life or personal safety of others.----Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. Section 304A IPC deals with causing death by negligence. It reads as under:- 304A. 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. 7.1 Section 279 IPC punishes the act of a person driving or riding a vehicle on a 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. Section 304A IPC punishes the act of causing death (not amounting to culpable homicide) of a person by doing a rash or negligent act. This court in Abdul Subhan V State (NCT of Delhi), Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 18 17:05:23 133 (2006) DLT 562 while discussing about the ingredient of Section 279 and 304A IPC observed as under:- The essential ingredients of Section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As regards the offence punishable under Section 304A IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. The Supreme Court in Mohammed Aynuddin @ Miyan V State of Andhra Pradesh, (2007) 7 SCC 72 observed as under:- A rash act is primarily an over hasty 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. 8. The prosecution to prove guilt of the respondent primarily relied on testimony of the complainant/PW3. A witness in a criminal trial plays a significant role in determination of truth and is an important constituent of the administration of justice. The witness by Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 19 17:05:23 giving evidence during trial discharges a sacred duty of assisting the court in deciding on the guilt or otherwise of the accused. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The emphasis is laid on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. However, evidence should have colour of truth, credibility and trustworthiness. The prosecution does not require number of eye witnesses to prove its case beyond reasonable doubt. The testimony of single eye witness may be sufficient to prove guilt of an accused. The careful analysis of testimony of the complainant/PW3 stated that the respondent was driving the offending vehicle at time of accident and also caused the accident. The complainant/PW3 to constitute rash and negligence on part of the respondent while driving the offending vehicle deposed that the respondent was driving the offending vehicle in very fast speed and struck against the scooter. The complainant/PW3 also deposed that the incident took place due to the negligence of the respondent as he came suddenly from gali without blowing any horn and in fast speed and struck against the scooter. The respondent was driving the Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 20 17:05:23 offending vehicle without taking appropriate care and caution towards other vehicles on road. The respondent has failed to exercise reasonable and proper care and precaution to the public generally and to other vehicles on road. The respondent was under an obligation to exercise reasonable and proper care and precaution while driving the offending vehicle. The entire testimony of the complainant/PW3 is consistent, cogent, credible and is narrative of necessary facts sufficient to constitute guilt of the respondent. There is no inherent inconsistency in entire testimony of the complainant/PW3 which can shake credibility of testimony of the complainant/PW3 and hence, the testimony of the complainant/PW3 can be safely relied on. 8.1 The prosecution also examined J. S. Pawar as PW5 who mechanically inspected the scooter and the offending vehicle vide Mechanical Inspection Reports Ex. PW5/A and Ex. PW5/B respectively. PW5 during mechanical inspection of the scooter notices damage in dikki, dent on the right side of the scooter body and dent on engine cover. PW5 also noticed that stepany stand was bent and the view mirror was damaged. The scooter was not fit for road test. PW5 during mechanical inspection of the offending vehicle Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 21 17:05:23 noticed fresh damages on the offending vehicle as the front bumper was found to be came out, right head light, front right indicator and front right corner were also found to be damaged. The offending vehicle was found fit for road test. The damage reported on the scooter by PW5 reflects huge magnitude of force by which the offending vehicle struck against the scooter which also reflects negligence on part of the respondent at time of accident. 8.2 The testimony of PW10 Dr. Manoj Dhingra who conducted post mortem on the dead body of the deceased proved that the deceased had died due to road accident. The post mortem report Ex. PW10/A proved that cause of death was coma due to head injury and all injuries were fresh and ante mortem and possibly caused due to road accident. The prosecution as such proved that the deceased had died due to injuries caused to him by the accident. The testimony of PW7 Dr. P. K. Mishra who medically examined the complainant vide MLC Ex. PW7/A also proved that the complainant received simple injuries due to accident. 8.3 The respondent in the cross examination of the complainant/PW-3 took the defence by giving suggestions that the Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 22 17:05:23 respondent was not driving the offending vehicle which was denied by the complainant/PW-3. The complainant/PW-3 also denied the suggestion that no accident took place by the offending vehicle or that the respondent was not driving the offending vehicle on the date of accident. The respondent in the statement under section 313 of the Code simply denied the incriminating evidence and pleaded innocence. The defence taken by the respondent is without any basis and is not substantiated by necessary evidence. 9. The prosecution from the evidence led by it proved that the respondent was driving the offending vehicle on 09.01.2007 at about 07:40 am at P.C. Kaushik Wali Gali rashly and negligently so as to endanger human life and personal safety of others and while doing so struck against scooter bearing no DL 4SV 3074 and caused death of the deceased and simple injuries to the complainant. The trial court acquitted the respondent on the basis of insignificant and immaterial discrepancies in the testimonies of prosecution witnesses and on the basis of unsustainable assumptions and presumptions. The trial court has not appreciated the testimony of the complainant/PW3 in right perspective and with due application of judicial mind. The arguments Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 23 17:05:23 advanced by the counsel for the respondent are considered in right perspective which are without any legal force. There is legal force in arguments advanced by the Additional Public Prosecutor for the appellant/State that trial court acquitted the respondent without properly appreciating the testimony of the complainant/PW3 and on the basis of minor discrepancies in the testimony of prosecution witnesses. The impugned judgment cannot sustain and is accordingly set aside. The appeal is accordingly allowed. The respondent is convicted for offences punishable under section 279/337/304A IPC. 10. List on 27.02.2024 for argument on quantum of sentence. DR. SUDHIR KUMAR JAIN (JUDGE) FEBRUARY 20, 2024 SK/AK Signature Not Verified Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:22.02.2024 CRL.A. 882/2023 Page 24 17:05:23