IN THE COURT OF MS.

SHIPRA DHANKAR
METROPOLITAN MAGISTRATE-01, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
FIR No. 62/11
PS: Prasad Nagar
U/s 279/304-A IPC
State Vs. Rajeev Giri
CNR No. DLCT02-001554-2011
JUDGMENT

(a) Sr. No. of the Case 300387/2016

(b) Date of offence 16.04.2011

(c) Complainant Sh. Bhagat Singh

(d) Accused Rajeev Giri S/o Sh. Narain Chand Giri R/o
H.No. 6576, Block No.9, Gali No.3, Dev Nagar,
Karol Bagh, Delhi.

(e) Offence Under Section 279/304-A IPC

(f) Plea of accused Pleaded Not guilty

(g) Final Order Convicted

(h) Date of Institution 07.07.2011

(i) Date when judgment was 06.05.2023

reserved
(j) Date of judgment 15.05.2023

BRIEF FACTS AND REASONS FOR SUCH DECISION

1) The Prosecution story, as per the Police Report, is that at 2:30pm on

16/04/11, the accused, while driving a car bearing registration no. DL 4CS 7633
in a rash and negligent manner, hit a child named Bhanu Pratap Singh and
caused his death at Gali no. 6, Block no. 9, Guru Nanak Road, Dev Nagar

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 1 of 22
falling in the jurisdiction of PS Prasad Nagar. Thus, the accused is alleged to
have committed an offence under section 279/304A of the Indian Penal Code
(hereinafter referred to as IPC).

PROCEDURAL HISTORY
2) After investigation, chargesheet was filed under section 173,
Cr.P.C. and cognizance was taken on 07/07/2011 and the accused was
summoned to face trial.

3) On 13/12/2011, a charge was framed under sections 279/304A, IPC

to which the accused pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

4) In order to substantiate its case, prosecution has examined eleven

witnesses.

5) PW 1 is Ct Dalbir Singh who deposed that on 16/04/2011, he along

with the IO/ASI Surender reached the B.L. Kapoor Hospital after receiving a
phone call regarding an accident. The IO recorded the statement of the father
who was present there and prepared the rukka; and got FIR registered through
PW-1. The witness identified the accused who was present in court and further
deposed that he was also present at the hospital. Thereafter, the accused was
interrogated by the IO and arrested vide memo EX PW1/A after identification
by the complainant. The offending car, D/L of the accused and the RC of the
offending vehicle were seized by the IO vide seizure memos Ex PW1/B and Ex
PW1/C. The witness then stated that the injured expired at the hospital and the
IO recorded the statements of the relatives identifying the body which are
exhibited as Ex PW1/D and Ex PW1/E. The body of the deceased was handed
over to the complainant/father of the deceased after post-mortem.
During his cross-examination by Ld Counsel for the accused, the

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 2 of 22
witness stated that the IO did not make any inquiry from any public witness. He
also stated that the place of occurrence is a crowded placed.

6) PW 2 is Bhagat Singh, complainant and the father of the deceased.

He deposed that on 16/04/2023 at around 2:30 pm, he and his 2.5 years old son
went to a grocery shop situated at the corner of Street no. 6, Block No.9, Dev
Nagar, Delhi for purchasing some grocery items. After purchasing the items, the
witness was making the payment and his son was standing at the corner of gali
no. 6 near the shop. The witness then saw that a blue santro bearing registration
no. DL-4C-S-7633, being driven by the accused (correctly identified by the
witness), came from the direction of labour chowk at a very high speed in a rash
and negligent manner with music playing at high volume, suddenly took a turn
in gali no. 6 without blowing horn or giving any indication, thereby hitting the
injured Bhanu Pratap Singh who was then caught under the offending vehicle.
On seeing this the witness shouted and reached the place of incident. Thereafter,
the witness removed the son from underneath the offending vehicle and also
apprehended the accused who was trying to escape from. The witness further
deposed that blood was oozing from the mouth, nose and head of his son.
Thereafter, the witness took his son to Bali Nursing Home in the offending
vehicle along with the accused. At the said nursing home, the doctor provided
first aid to his son and asked the witness to take him to B.L Kapoor Hospital.
The witness then took his son to B.L. Kapoor Hospital where the doctor
declared him dead. The case IO then came to the witness in the hospital and
recorded his statement which is Ex PW-2/A bearing his signature at point A.
The witness further deposed that the accused was also present at the hospital
and the witness told the IO that the accused Rajeev Giri was driving the
offending vehicle at the time of the accident and he also identified the accused
in the presence of the IO. The IO then got the FIR registered. Thereafter, the

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 3 of 22
witness, the accused and the IO reached the spot and the witness pointed the
place of incident to the IO after which the IO prepared site plan which is Ex
PW-2 bearing his signature at point B and recorded the supplementary statement
of the witness. The witness identified the body of his son on 17/04/2011 vide
statement Ex PW1/E bearing his signature at point B. After post mortem, the
witness received the dead body vide handing over memo Ex PW1/F bearing his
signature at point B. The witness correctly identified the offending vehicle that
was brought to the court by the superdar.
During his cross-examination by ld counsel for the accused, the
witness deposed that he did not take the bill for the articles purchased by him as
it was a small shop and the shop keeper did not give bills. He stated that
whatever was stated by him to the IO, was recorded in his statement Ex PW2/A
and though he had told the IO that the accused tried to escape after the incident
and was caught by the witness, this fact was not written in his statement. He
further stated that he had signed the said statement and had also requested the
IO mention the aforementioned fact in his statement. He then stated that he did
not make any complaint against the IO regarding this. He admitted that the
place of incident is a crowded area but stated that at the time of the incident, it
was not crowded. He stated that although he saw the offending vehicle from a
distance of 15-20 feet being driven at a very high speed in a negligent manner
with music being played at a high volume, but he could not try to save to his
child as he thought that the vehicle would go straight since there was no
indication to take a turn towards gali no. 6. He stated that his son was hit with
the front right portion of the vehicle. The witness could not tell the speed of the
vehicle and could only state that it was being driven at a very high speed. He
further testified that no other person was with him when he pulled his son from
underneath the car. He reiterated that he apprehended the accused as he was
trying to escape. He stated that he did not remember if any other person was

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 4 of 22
present in the car and also if any tyre skid marks were present on the road. He
also did not remember if any other person received any injury or of any other
person had witnessed the incident as his attention was only towards his son. He
did not remember where he had given his statement EX PW2/A to the police.
He denied that he went to the police station from the hospital. He did not
remember if there were any blood stains on the tyres of the offending vehicle as
his complete attention was towards his son. He stated that the window panes of
the offending vehicle were without film. He admitted that he had filed a claim
petition in MACT Court and the certified copy of affidavit filed by him in
MACT proceeding is Ex PW2/D1. He stated that he had signed the said
affidavit without reading the same. He denied that he had given false evidence
in MACT proceedings. He denied that the suggestion that he had not witnessed
the accident himself. He admitted that the police did not enquire any other
person in his presence. He denied having any enmity with the father of the
accused and stated that he did not know him. He also denied the suggestion that
the accused, while passing by the spot, saw the son of the witness lying on the
road in an injured condition and on the request of some public persons took him
to the hospital.

7) PW 3 is Narayan Chand Giri who deposed that he is the registered

owner of the offending vehicle. He stated that he received a notice u/s 133 M.V
Act from the IO which is Ex PW3/A and bears his signature at point A. He
further stated that he did not reply to the said notice but had put his signature on
the carbon-copy of the notice which is Ex PW3/B. The witness also stated that
he had signed the same, mentioned his name, address and mobile number at
point A. He denied knowing anything about the case.

The witness was then cross-examined by Ld APP for the state after
obtaining the court’s permission as he was resiling from his previous statement.

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 5 of 22
 During his cross-examination, the witness denied that he had
furnished his reply to the notice u/s 133 M.V. Act. He denied that he was
deposing falsely in order to save his son.

Despite opportunity, the witness was not cross-examined by Ld

Counsel for the accused.

8) PW- 4 Dr. Harpreet Singh, who deposed that on 16/04/2011, injured

Bhanu Pratap Singh, aged about 2 years, was brought by Bhagat Singh,
allegedly hit by a moving car. The witness medically examined the injured and
prepared MLC no. 81/11 in his handwriting which is Ex PW4/A and the same
bears his signature at point A.
During his cross-examination by ld counsel for the accused, the
witness deposed that the injured had laceration on scalp and abrasions over face,
neck and upper chest. The alleged history of accident was told to him by the
father of the injured. He did not remember if he had asked Bhagat Singh
regarding the injured bring previously medically examined before he was
brought to B.L. Kapoor Hospital. He stated that it was correct that the injuries
sustained by the injured may not necessarily be received in a road traffic
accident. However, the witness added that the injuries sustained by the injured
are likely to be sustained in such an accident.

9) PW 5 is ASI Surender Kumar, the IO. He deposed that on

16/04/2011, he and PW-1 reached B.L. Kapoor Hospital after receiving
information vide DD no. 22A. The IO then collected the MLC of the injured
Bhanu Pratap Singh. The father of the injured and the accused (correctly
identified by the IO) were present at the hospital. The IO then recorded the
statement of the complainant and prepared rukka which is Ex PW5/A. The
rukka was then handed over to PW-1 for registration of FIR. The witness then
stated that the offending vehicle was present at the hospital and he along with

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 6 of 22
the complainant, accused and the offending vehicle went to the place of
incident where he prepared the site plan at the instance of the complainant. PW-
1 also reached the spot with a copy of FIR and handed over the same to the
witness after which the accused was interrogated and arrested. Thereafter, the
supplementary statement of the complainant was recorded and the offending
vehicle along with its insurance papers, DL of the accused and RC of the car
were seized. On 17/04/2011 the dead body of the deceased was identified by his
father and post mortem was conducted at Lady Harding Hospital. After the post
mortem, the body was handed over to the father of the deceased. The
photographs of the spot were clicked and the same are marked as Mark A colly.
The offending vehicle was correctly identified by the witness. The witness
further stated that the investigation was later transferred to ASI Madan Mohan
of MACT Cell.
During cross-examination by Ld Counsel for the accused, the
witness stated that he reached the hospital at around 5 pm and the father of the
injured, their relatives and the accused were also present. He stayed at the
hospital for about one and a half hour whereafter the witness, the complainant
and the accused reached the spot at around 7 pm. The witness remained at the
spot for about three and a half hours and at around 7:10pm, PW-1 reached the
spot. The witness then enquired from public persons about the incident but they
had not seen the incident. The IO also enquired the shopkeeper in the presence
of the complainant about the incident but he said that he was busy at the time of
the accident and therefore, had not seen it but he stated that the accident did take
place. The IO, however, did not record the statement of the shopkeeper.

10) PW-6 is Dr Suresh Chand who conducted the post mortem of the
deceased and prepared the report which Ex PW6/1. He opined that the cause of
death was the combined effect of cerebral damage and shock to multiple bone
and visceral injuries resulting from blunt force trauma to the head and truck

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 7 of 22
respectively. He further stated that all the injuries were ante-mortem in nature,
fresh in duration and caused by blunt force, possible in road side vehicular
accident.
During his cross-examination by Ld Counsel for the accused, the
witness stated that it was correct that the alleged history mentioned in the LMC
had been told to him by the father of the deceased and the witness gave his
opinion according to the alleged history. He further stated that it was not
necessary that the said injuries were caused due to an accident only.

11) PW-7 is Retd SI Jai Nath Singh who has been inadvertently
mentioned as PW-6. He deposed with respect to registration FIR which is EX
PW6/A and the endorsement made by him on the rukka Ex PW6/B and bears his
signature at point A.

During his cross-examination by Ld Counsel for the accused, the

witness stated that he had no personal knowledge about the case.

12) PW-8 is Taslimuddin Siddqui, the mechanical inspector. He

deposed that he has been working for more than 42 years and on 18/04/2011, he
inspected the offending vehicle at the request of SI Madan Mohan before filing
a detailed report which is Ex PW7/A. The witness correctly identified the
offending vehicle.
During his cross-examination by Ld Counsel for the accused, the
witness stated that on inspection, it was found that the front metallic number
plate of the offending car was dented. He further stated that he was a
government approved surveyor and loss assessor and held a diploma in Civil
and Rural Engineering from the Technical Board, Delhi in 1976 through Jamia
Milia University, along with a license issued by IRDA to conduct the
mechanical inspection of motor vehicles. He denied the suggestion that Civil
and Rural Engineering do not come under the purview of mechanical inspection
and that he had not done any course pertaining to mechanical inspection.
State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 8 of 22
13) PW-9, namely SI Madan Mohan to whom further investigation
was marked. He deposed that on 19/04/2011, the mechanical inspection of the
offending vehicle was conducted. During investigation, he served the
complainant/ father of the deceased with notice u/s 91 and collected the
residence proof and proof of LRs. On 25/04/2011, a notice u/s 133, M.V. Act
was served on the owner of the offending vehicle who replied to the same vide
Ex PW3/B.

During his cross-examination by ld Counsel for the accused, the

witness stated that he did not see any document regarding the skill of T.U
Siddiqui regarding the mechanical inspection of vehicle. He denied the
suggestion that the inspection report was prepared on his instructions.

14) PW-10 is Ct Yashwant, who brought the register no. 19 of year

2011 to show the entry as per which ASI Surender deposited the case property.
The relevant entry was stated to be at S.No. 1965 and a photocopy of its extract
is Ex PW9/A.
During his cross-examination by Ld Counsel for the accused, the
witness stated that he had no personal knowledge about the case.

15) PW-11 is Dr. Sreenivas, who deposed that Dr. Suresh Chand
conducted post mortem of the deceased and prepared a report regarding his
opinion on the injuries and cause of death which was endorsed by PW-11.
During his cross-examination by Ld Counsel for the accused, the
witness that it is correct that the injuries mentioned in the PM report could be
due to falling.

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 9 of 22
16) Thereafter, the Prosecution closed its evidence.

STATEMENT U/S 313 OF THE CRPC

17) Statement of accused person under section 281 Cr.P.C. r/w 313
Cr.P.C. was recorded wherein he denied all allegations against him stating that
he was innocent and has been falsely implicated. He further stated that he
wished to lead any defence evidence. Accordingly, matter was fixed for defence
evidence.

18) However, on 17/08/2022, Ld Counsel for the accused submitted that

the accused does not want to lead defence evidence in his favour. Accordingly,
defence evidence was closed and matter was fixed for final arguments.

ARGUMENTS:

19) The Court has heard the submissions made by Ld. APP for the state
as well as the Ld. defence counsel at length.

20) It is argued by the Ld. APP for the State that the state has
successfully proved its case beyond reasonable doubt. He argues that the fact
that the accused was apprehended by the father of the deceased at the spot
proves the accused’s presence. Further, the father of the deceased is also the
eye-witness who has testified with respect to all the necessary ingredients of the
alleged offences. The eye-witness has deposed that the accused was driving at a
high speed in a rash and negligent manner and took a sharp-turn without
blowing horn. He has further correctly identified the accused as the driver of the
offending vehicle. Thus, the offence under section 279 is sufficiently made out.
Consequently, the offence under section 304A also stands established as the
cause of death of the deceased as reflected in the post-mortem report is stated to
be due to injuries suffered in a road accident. Ld APP for the state, thus, argues

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 10 of 22
that death of the victim was caused by the rash and negligent driving of the
accused and ingredients of section 304A stand satisfied.

21) On the other hand, Ld. counsel for the accused has argued that the
State has failed to establish its case beyond reasonable doubt. He argues that the
accused could not have driven at a high speed given that the place of occurrence
is a crowded place, which has been admitted by the prosecution witnesses
themselves. It is further argued that the testimony of PW-2 is unreliable and
unworthy of credit as there are major improvements in his testimony. He argues
that in the claim filed by the complainant/PW-2 before the Ld MACT court, an
affidavit signed by him was relied upon by him. In the affidavit, the
complainant stated that there was another person in the car but the said fact has
not been stated by him in the present case. Another major improvement, Ld
counsel argues, found in the testimony of PW-2 is with respect to the fact the
accused was trying to escape from the spot but was apprehended by the witness,
but this fact has not been stated by him at the time of registration of FIR and is
also not mentioned in the brief statement of facts provided in the chargesheet.
Thus, on account of inconsistency and improvement, his testimony should not
be relied upon. The counsel has further argued that the presence PW-2 at the
spot is also doubtful on account of two reasons, firstly, he has been unable to
produce the receipt for the grocery items bought by him and secondly, he does
not seem to remember any details such as the presence of any other persons on
the spot or if anyone else was injured due to the accident or if there were tyre
skid marks on the road or blood stains on the tyres. It has also been argued that
the doctor who conducted the post-mortem has opined that the injuries were not
necessarily caused by a road accident and the mechanical inspector did not
opine that the damage to the offending vehicle was fresh or not which together
create a doubt on the prosecution version that the deceased was hit by the

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 11 of 22
offending vehicle. Thus, nothing has come on record against the accused and he
should be acquitted for the said offences.

INGREDIENTS OF THE OFFENCE

22) The accused has been charged for the offence under Section
279/304A of the IPC. Section Section 297, IPC provides punishment for rash
driving or riding on a public way. It reads as under:

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.

23) Thus, in order to bring home the guilt of the accused under section
279 IPC, the prosecution must prove the following ingredients:
i. That and accident actually took place;
ii. That the accident was caused by rash or negligent driving;
iii. That the accused was driving the offending vehicle at the relevant

time.

24) Section 304A, IPC provides punishment for causing death by

negligence and the provision reads as under:

"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 de-
scription for a term which may extend to two years, or with
fine, or with both".

25) Hence, the essential ingredients of Section 304A that must

be satisfied in order to prove the said offence are:
i.) The accused has done a rash or negligent act;
ii.) Such rash or negligent act has led to death of a person;
iii.) The death caused is such that it does not amount to culpable
homicide.

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 12 of 22
26) To sum up, in a case of death caused by rash or negligent driving,
the test, which has been laid down by the Hon’ble High court of Delhi in
Niranjan Singh vs State (Delhi Administration) 1997 Cri LJ 336, is whether the
prosecution has proved that:
(i) the accused was driving the vehicle in such a manner as to create
an obvious and serious risk of causing physical injury to some
other person who might happen to be using the road or of doing
substantial damage to the property;
(ii) in driving the vehicle in that manner the accused did so without
having given any thought to the possibility of there being any such
risk or, having recognized that there was some risk involved, had
nonetheless gone on to take it; and
(iii) The rash or negligent act must be the proximate cause of death of
the deceased.

27) A combined reading of both the above-mentioned sections shows

that the culpability of the accused rests upon a “rash or negligent” act. Hence, a
brief discussion into the meaning of the terms “rashness” and “negligence”
becomes crucial before one can delve into appreciation of evidence against the
accused.

28) The words "rash" and "negligent" have not been defined in the
Indian Penal Code. However, as per Blacks Law Dictionary, Eighth Edition the
word 'negligence’ is defined as a person's failure to exercise the degree of care
that someone of ordinary prudence would have exercised in the same
circumstances. “Rashness”, on the other hand, has been defined in the Sixth
Edition of the Oxford’s Advanced Learner’s Dictionary as doing something that
may not be sensible without first thinking about the possible results.

29) In the case of Mohd. Aynuddin @ Miyan Vs. State of Andhra

Pradesh, 2000 AIR (SC) 2511, the Hon'ble Supreme Court explained the
meaning of a rash and negligent act in the following words:-

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 13 of 22
 "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."

30) Having discussed the law governing the alleged offences, I find it
pertinent to also reiterate one of the most well known and crucial principle of
criminal jurisprudence that the standard of proof to be adopted in criminal cases
is not merely of preponderance of probabilities but proof beyond reasonable
doubt on the basis of cogent, convincing and reliable evidence pointing towards
the guilt of the accused. Unless the prosecution, through such evidence, rebuts
the presumption of innocence in favour of the accused, the accused is entitled to
be given the benefit of the doubt and be acquitted.

DISCUSSION
31) Keeping in mind the above mentioned principal of criminal law, let
us now ascertain the culpability of the accused through the evidence adduced by
the prosecution.

32) In the light of the offences that the accused has been charged with,
let us first assess the liability of the accused with respect to offence under
section 279 IPC.

33) The ingredients necessary to establish the said offence have already
been discussed above and the first and foremost point for consideration is
whether an accident took place. This fact has not only not been disputed by the
accused but has also been sufficiently established by the prosecution through the

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 14 of 22
testimony of PW-2 who was an eye-witness to the said incident. While the
defence counsel put a suggestion to the witness that the accused, while passing
by the spot, saw the son of the witness lying on the road in an injured condition
and on the request of some public persons took him to the hospital, but the same
was denied by PW-2. Nothing was brought on record by the accused to show
that the accused had merely took the deceased to the hospital at the request of
public persons. The depositions of PW-4 and PW-6, who prepared MLC and
post mortem reports respectively, also lend support to the version of the
prosecution in as much it claims that the deceased suffered injuries in a road
accident. Although Ld counsel for the accused put a suggestion to PW-4 and
PW-6 regarding the likelihood of injuries being sustained otherwise than in a
road accident, but the primary opinion of the doctors remained unshaken and
the reports were not disproved by the accused. Merely a possibility that the
injuries could have resulted from an incident otherwise than in a road accident
does not weaken the case of the prosecution as the same is supported by the
testimony of PW-2 who has unwaveringly deposed that an accident took place.
His version regarding the broad manner in which the accident happened has
remained consistent not just before the police as reflected from the rukka
prepared by the IO but also during his testimony before the court. Hence, the
happening of the accident stands proved.

34) The other ingredient of section 279, namely accident resulting from
rash and negligent driving of the accused. In order to prove the manner of
driving and the fact that the offending vehicle was being driven by the accused,
prosecution has relied upon the testimony of PW-2. The said witness has
deposed that on the fateful day, the accused was driving the offending vehicle at
a very high speed in a rash and negligent manner and while doing so he took a
sharp turn at gali no. 6, where the deceased was standing at the corner. The

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 15 of 22
witness further deposed that the accused did not give any indication that he was
about to turn and neither did he blow the horn. Such manner of driving can be
reasonably construed to be rash and negligent. Ld counsel for the accused,
however, has argued that firstly, the accused could not have driven at a high
speed since the place of incident was a crowded place and secondly, even if he
was driving at a high speed, the same cannot solely amount to rashness and
negligence. Reliance has been placed on the cases of Hon’ble Supreme Court of
India titled as ‘Mohd. Ayunuddin @ Miyam Vs State of Andhra Pradesh’,
‘Brahm Dass Vs State of H. P. vide Crl. Appeal No.26/2003’ & ‘State of
Karnataka Vs. Satish’ and cases of Hon’ble High Court of Delhi titled as ‘Abdul
Subhan Vs. State of Delhi’ & ‘Kishore Chand Joshi Vs. State of Delhi’.

35) The court does not find itself in agreement with the above-
mentioned submissions made by the defence counsel. First and foremost, just
because a place is usually crowded does not mean that there cannot be certain
hours in the day when the place is slightly less crowded. PW-2 has testified that
at the time of the incident, the place of accident was not very crowded. After
this testimony, it was for the defence to bring on record some material to show
that what PW-2 has stated was not correct. But since no proof has been
produced in support of this claim by the accused, there is no reason to
disbelieve PW-2.

36) As far as the second leg of the defence argument is concerned,

while it is true that ‘high speed’ is a relative term which does not bespeak of
“rashness” or “negligence” in itself, but the cases that Ld defence counsel seeks
to draw support from arise out of factual matrices very different from that of the
present case. In the present case, PW-2 who is the sole eye-witness to the
incident has consistently deposed regarding not only the high speed at which the

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 16 of 22
accused was driving but also the manner of driving because of which the
accident occurred. When high speed is coupled with taking a sharp turn, it
attributes a level of recklessness to the act of the accused and brings it within
the meaning of the term “rash”. Any person of ordinary prudence is presumed to
know the consequences of his acts and in the present case, the accused can be
attributed with the knowledge that driving at a high speed and taking a sudden
turn without slowing down or giving any indication or blowing the horn could
lead to him losing control over the vehicle and possibly endanger human life or
cause hurt. Hence, the act of the accused (driving in this case) can be said to be
“rash” as covered under section 279 IPC.

37) There are certain other arguments that the defence counsel has put
forth to attack the testimony of PW-2 so as to render it not worthy of credit.

38) Firstly, it has been argued that the fact that PW-2 was present at the
spot when the accident took place itself cannot be believed on account of
reasons such as not being able to produce the receipt of the grocery items
purchased by him; inability to recall details such as tyre skid marks on the road
or blood stains on the tyres. The court is not convinced with this argument. The
witness, when questioned by the defence counsel regarding these aspects, has
stated that he was in a state of shock when the incident took place and since his
attention was completely towards his injured son, he does not remember
anything. This explanation given by the witness is in consonance with how any
normal person or rather a parent would act and react in such situation. It is not
reasonable to expect a parent to remember such minute details when he has just
witnessed his two year old child being not just being hit by a car but has had to
pull him out after being stuck under the wheels of the car. It is but natural for
such a parent to be in a state of shock and panic and not absorb any details of

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 17 of 22
what is happening around him and focus on only rescuing his son. Further, after
being through a tragedy of this kind, it can also not be expected of the witness
to have asked for a receipt and even if he had, to have preserved it so as to
produce it one day in court. Hence, this court does not see any force in the
argument of the defence counsel.

39) Secondly, Ld counsel for the accused has also attacked the
testimony of PW-2 on the ground that he has materially improved his testimony
by stating before the court that the accused was apprehended by him as he was
trying to escape after the incident, which fact has not been stated by him at the
time of registration of FIR. Another instance of improvement made by him can
be found in the affidavit filed by him before Ld MACT court wherein he stated
that another person, a friend of the accused’s, was present in the car. However,
the witness testified before the court that he did not remember if any other
person was in the car. As per the case of the prosecution, the vehicle was driven
by the accused and no other person was in the car. These inconsistencies, Ld
Counsel for the accused argues, amount to major contradictions and hence,
testimony of the witness should be discarded on account of being unreliable.

40) In order to ascertain whether the said inconsistencies/discrepancies

amount to fatal contradictions, reference may be made to the Apex Court’s
observations in the case of State of Himachal Pradesh v Lekh Raj and Anr:
Discrepancy has to be distinguished from
contradiction. Whereas contradiction in the statement of the
witness is fatal for the case, minor discrepancy or variance in
evidence will not make the prosecution's case doubtful. The
normal course of the human conduct would be that while
narrating a particular incidence there may occur minor
discrepancies, such discrepancies in law may render credential
to the depositions. Parrot like statements are disfavoured by the
courts. In order to ascertain as to whether the discrepancy

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 18 of 22
 pointed out was minor or not or the same amounted to
contradiction, regard is required to be had to the circumstances
of the case by keeping in view the social status of the witnesses
and environment in which such witness was making the
statement.
…. There is bound to be some discrepancies between the
narrations of different witnesses when they speak on details, and
unless the contradictions are of a material dimension, the same
should not be used to jettison the evidence in its entirety.
Incidentally, corroboration of evidence with mathematical
niceties cannot be expected in criminal cases. Minor
embellishment, there may be, but variations by reason therefore
should not render the evidence of eye witnesses unbelievable.
Trivial discrepancies ought not to obliterate an otherwise
acceptable evidence.

41) In the light of the observations made by Hon’ble Supreme Court,

the inconsistency pointed out by Ld defence Counsel does not seem to amount
to major contradiction. The fact that the witness did not mention anything about
the conduct of the accused after the accident in so far as he tried to escape is not
contradictory to the overall sequence of events that he has described. His
version of story has remained consistent as far as the facts relating to identity of
the driver of the offending vehicle, the manner of driving and the happening of
an accident as a result of the accused’s rash and negligent driving are concerned.
The witness has not wavered in respect of facts that satisfy the ingredients of
Section 279 IPC. The conduct of the accused as reflected from his attempt to
flee does not affect the offence under section 279 IPC. Hence, the said
improvement cannot be said to be so major so as to discredit the entire
testimony of PW-2.

42) With regard to the contradiction in the testimony of PW-2 arising from
the affidavit filed by him in MACT Court where he claimed that there were two
persons in the offending vehicle at the time of the incident, it should be noted
that when the witness was asked about the same during his cross-examination,

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 19 of 22
he stated that he did not remember if anyone else was there in the car.
Moreover, when he was confronted with the affidavit filed by him in Ld MACT
court, he stated that he had signed the same without reading it. Hence, he has
explained the said contradiction. In any event, it is immaterial if someone else
was also present in the offending vehicle since the witness has not deviated
from the prosecution version. He never showed any doubt regarding who was
driving the alleged vehicle. Thus, the said contradiction does not render the
testimony of PW-2 unworthy of credit.

43) Moreover, the testimony of PW-2 is duly corroborated by the report

of the mechanical inspector, MLC report and the post-mortem report. The said
report lend support to the testimony of PW-2 in his claim that the accident
occurred with the offending vehicle as the same was found to be freshly
damaged upon inspection. Further, the MLC of the deceased as well as the post-
mortem show that the injuries sustained by him were likely caused by a “road
side vehicular accident”. While it is correct that the two doctors in their
deposition, before the court, agreed that the injuries were not necessarily
sustained during a road accident but they maintained their opinion that they
were likely to have been inflicted during an accident. Hence, these two
documents sufficiently corroborate the testimony of PW-2 and the case of the
prosecution.

44) Lastly, as far as the absence of independent witnesses is concerned,

it is well settled law that in order to prove its case, the prosecution does not
need to produce numerous witnesses. The truth is determined by the court by
assessing the quality of the witness testimony and not the quantity of witnesses.
The sole testimony of an eye-witness can be the basis of conviction of the
accused if found to be worthy of credit. Moreover, it is a well settled principle
of law that corroboration from an independent witness is a rule of caution and

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 20 of 22
not a requirement mandated by law. Reference in this regard is made to the
Apex Court’s observation in the case of Sadhu Saran Singh v State of U.P
(2016) 4 SCC 357:
“As far as the non-examination of any other independent
witness is concerned, there is no doubt that the prosecution has not
been able to produce any independent witness. But, the prosecution
case cannot be doubted on this ground alone. In these days,
civilised people are generally insensitive to come forward to give
any statement in respect of any criminal offence. Unless it is
inevitable, people normally keep away from the court as they find it
distressing and stressful. Though this kind of human behaviour is
indeed unfortunate, but it is a normal phenomena. We cannot
ignore this handicap of the investigating agency in discharging
their duty. We cannot derail the entire case on the mere ground of
absence of independent witness as long as the evidence of the
eyewitness, though interested, is trustworthy.”

Thus, the fact that the prosecution has not examined any
independent witness in the present case does not cast doubt on its version if the
testimony of the eye-witnesses proves to be trustworthy.

45) It is also worthy of mention that since the sole eye-witness is a

father who has witnessed his two-year old son die in front of his own eyes, there
is no reason why he would let the real culprit go scot-free and implicate an
innocent man. Ld counsel for the accused has attempted, during cross-
examination of the witness, to indicate towards an existing enmity between the
witness and the father of the accused, which the witness denied. But no material
was brought forward by the accused to prove the said enmity. Hence, this court
does not find any reason to disbelieve the testimony of PW-2.

46) Having come to the conclusion that the accident occurred due to rash
driving of the accused, let us now see if the offence under section 304A is made
out. The MLC report and post-mortem report read with the testimony of the

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 21 of 22
doctors who prepared them establishes, as discussed in the paragraph above,
that the injuries suffered by the deceased were consistent to the kind that are
caused in a vehicular accident. Thus, the only inference that can reasonably be
drawn is that the rash act of the accused, that is rash driving, was the proximate
cause of death of the deceased. It was on account of the injuries suffered by the
deceased upon being caught under the wheel of the offending car that he
succumbed. Hence, the offence under section 304A stands established.

47) In light of the discussion made hereinabove, this Court is of the

considered opinion that case of prosecution is proved beyond reasonable doubt
to the effect that accused Rajeev Giri was driving the offending vehicle bearing
registration no. DL 4CS 7633 in a rash manner which resulted in the death of
deceased Bhanu Pratap Singh, not amounting to culpable homicide.

48) Thus, on account of all the ingredients Section 279/304A IPC

being satisfied, accused Rajeev Giri is convicted for the offences u/s
279/304A IPC.

49) Let the convict be heard on the quantum of sentence.

50) Copy of this judgment be given free of cost to convict.

Digitally signed
by SHIPRA
DHANKAR
SHIPRA
Date:
Pronounced and Signed DHANKAR 2023.05.15
16:35:14

in the Open Court on 15.05.2023

+0530

(Shipra Dhankar)
Metropolitan Magistrate-01,
Central, THC, Delhi

State Vs. Rajeev Giri FIR No. 144/08 PS Maurice Nagar Page 22 of 22