Delhi District Court
Title Of The Case: : State vs Abhimanyu Jamwal on 19 November, 2019
IN THE COURT OF MS UPASANA SATIJA
METROPOLITAN MAGISTRATEI, NORTH WEST
ROHINI COURTS, DELHI
New Case No. : 539032/2016
Unique I.D. No. : 02404R0160992011
Title of the case: : State Vs Abhimanyu Jamwal
FIR No. 123/11, PS Sarawati Vihar
Date of institution : 10.06.2011
The offence complained of : 279/337/338/304A IPC
The date of commission of
offence : 29.03.2011
The name of complainant : SI V.D Panday, No. D2234,
PS Saraswati Vihar, Delhi.
The name of accused : Abhimanyu Jamwal S/o Sh.N.S. Jamwal
R/o Z33, HUDCO Andrews Ganj Extension,
New Delhi - 110049.
The plea of accused : Pleaded not guilty
The final order : Acquitted
The date of such order : 19.11.2019
JUDGMENT
1. The case of prosecution in brief can be stated as that on 29.03.2011, at about 05.30 pm, at Britannia Flyover going towards Punjabi Bagh, Abhimanyu Jamwal s/o Sh. N.S. Jamwal (hereinafter referred to as accused) was found driving Swift car bearing no. DL 9C Y 7734 in rash or negligent manner so as to FIR No. 123/2011 State v Abhimanyu Jamwal Page 1 of 36 endanger human life and personal safety of others and while driving the said vehicle in said manner, he struck against the central verge of railing of the above said flyover due to which his vehicle turned turtle and caused grievous hurt to Abhishek Sekhari and Sushant Rao and caused death of Shaurya Sethi and Kislay Kinsuk.
2. Upon completion of the investigation, the chargesheet was filed u/s 279/337/338/304A IPC against the accused.
3. The cognizance was taken. The material on record prima facie disclosed the commission of offences u/s 279/338/304A IPC. Notice of the accusation was accordingly served upon the accused to which he pleaded not guilty and claimed trial.
4. For proving its case, prosecution examined twenty seven witnesses. The accused stated that he will not dispute the FSL result/ report no. 2011/P 2194/Phy81/11/8281 dated 22.07.2011 prepared by Sh. Parshuram Singh, Senior Scientific Official (which was exhibited as Ex.P1), Impact assessment report/ inspection of the accidental vehicle i.e. swift car prepared by Deepak Sawkar, DDVM (ARD123), Sunil Malhotra DDVM (ARD12), Mr. S.K. Choudhary (SFMGR1) (SR3) and Raj Kumar SR3 (which was exhibited as Ex.P2) and a notification issued vide no. 60006150 TE (DII) traffic dated 20.05.2016 passed by Deputy Commissioner of police traffic Headquarters, Delhi regarding the speed limit in Delhi (which was exhibited as Ex.P3) and report/ CR and CAF of moble numbers 9873918538, 9999433150, 9968468568 from 28.03.2011 to 30.03.2011 and certificate u/s 65 B of Indian Evidence Act regarding the FIR No. 123/2011 State v Abhimanyu Jamwal Page 2 of 36 genuineness of CAF and CDR and fact of filing charge sheet in the present FIR prepared by SI, Lalit Kumar.
4.1. Abhishek Sekhri was examined as PW1 who deposed that on 29.03.11, he was picked from his flat at Rohini by the accused, Udit, Shorya, Kislay and Sushant who came to him in a swift car and he was to be dropped at Patel Nagar metro station from where he had to take metro to reach his house at Greater Kailash. He further deposed not to remember the exact time when they came to his flat, however, stated that it was around 5 pm. He further deposed that the said persons remained in the said car and he himself went down stairs and that they immediately started after they came. He further deposed that the said car was be ing driven by the accused and Udit was sitting in front seat adjacent to driver's seat and they all were sitting in the rear seat. He further stated not to remember the registration number as well as speed of the car. He further deposed that due to the accident, he received injuries and regained his consciousness after two days of incident. He further deposed that he does not remember the exact date when the IO met him and inquired him regarding the incident.
Upon permission being granted, the said witness was crossexamined by Ld. APP for State. During his crossexamination, he admitted his address to be B 8/8, Sector 15, Rohini and also admitted the registration no. of Swift Car as DL 9 CY 7734.
He was duly crossexamined by Ld. Counsel for accused. During his crossexamination, he stated that he knew Abhishek, Udit, Shorya, Kislay and Sushant as friends. He further deposed that he had earlier traveled in the aforesaid car and either Udit or accused used to drive it and that both of hem used to drive the car safely. He denied that it was Kislay and not the accused who was driving the car on the day of incident. He denied remembering the manner in which the FIR No. 123/2011 State v Abhimanyu Jamwal Page 3 of 36 vehicle was being driven or the speed at which it was being driven. He further de nied remembering whether any truck or bus passed by too close to the left side of the car due to which sudden right turn was taken to avoid collision. He further de nied remembering whether the driver of the car was driving in a rash or negligent manner. He further denied remembering the route which was being taken to reach Patel Nagar metro station.
4.2. Udit Kathuria was examined as PW2 who deposed that the Maruti Swift car bearing no. 7734 involved in the accident was registered in the name of Habina Exports of which his father is the proprietor/Director and further deposed that on 29.03.2011, he along with accused, Kislay, Shaurya and Sushant left their college at about 04.45 pm and called Abhishek, who was residing on rent at Sec 15, Rohini, as Abhishek told them to take him along with them and inform him as and when they leave from college and accordingly they reached the flat of Ab hishek after about 05 minutes and met Abhishek downstairs. He further stated that the car was being driven by the accused and from Sector15, Rohini via In come Tax Colony Pitampura, City Park Hotel, TV Tower, NSP, they reached at Britannia Chowk, where this accident happened. He further deposed that the car was being driven by the accused. He further deposed that he was sitting on the front seat adjacent to driver seat and Abhishek was sitting just behind the driver seat towards the window and that on the seat behind him, towards the window side Kislay was sitting. He further deposed that he and the accused were wearing seat belts and that the rear passengers were not wearing seat belts. He further de posed that the accident took place at around 05.30 pm; when their car was in mid dle lane, some other vehicle came from left side and to save themselves, accused took steep right turn due to which the car hit the central verge of the flyover and that after the accident he saw that Kislay, Shaurya and Abhishek were lying on FIR No. 123/2011 State v Abhimanyu Jamwal Page 4 of 36 the road due to the accident. He further deposed that Shaurya sustained serious in juries and was unconscious and some passerby and the accused took Shaurya Sethi to MAX Hospital. PW2 further deposed that Abhishek, Sushant and Kislay went with some police officials to hospital and PW2 was instructed by police of ficials to stay near the vehicle/ car. He further deposed that he gave the said infor mation to his father. He further stated that he had sustained minor injuries. He further stated that as far as he remembers the accident occurred while they were steeping upwards the flyover and that the speed of the vehicle was normal around 3040 Kmph and again stated the speed of the vehicle to be 40 kmph. He further stated that the speed of the vehicle could not be much as there was traffic signal just before the flyover starts. He further stated that after some days, he along with his father visited at PS Saraswati Vihar and told the IO about the manner and lo cation of accident. He further stated that IO prepared site plan which was exhib ited as Ex. PW2/A. During deposition, the witness correctly identified the 25 pho tographs of the spot as well as said Swift car bearing no. DL 9CY 7734 and all the photographs were collectively marked as Mark X. PW2 was duly crossexamined by Ld. Counsel for accused. During his crossexamination, PW2 stated that the passengers in his car themselves volun teered to sit in it and neither neither he nor the accused invited any one to sit in the car. He admitted that the occupants of the car were close friends. He further stated that it took 1 or 2 seconds to pick Abhishek from his flat as he was stand ing downstairs. He further stated that at the time of accident, the speed of the car must not have been more than 3035 kmph. He admitted that the driver of the car on the day of accident was alert and taking all precautions. He further stated that the vehicle which passed their car from the left side was a bigger one, was being driven at a high speed and there was a possibility of said vehicle colliding with their car had the driver of the car not taken a right turn. He further stated that in FIR No. 123/2011 State v Abhimanyu Jamwal Page 5 of 36 the past, he had never observed the accused driving any vehicle in rash or negli gent manner. He further admitted that the accused observes all the traffic rules. He denied that it was Kislay Kinshuk and not the accused that was driving the car at the time of accident. He admitted that site plan Ex. PW2/A does not bear his signature and that the same was prepared at PS and that he never visited the place of incident with IO. He further stated that according to him, the driver of the car was not responsible for the accident that happened and that it was simple accident and no one was at fault.
4.3. Sushant Rao, who was examined as PW3, corroborated the testimony of PW2.
Upon permission being granted, the said witness was crossexamined by Ld. APP for State. During his crossexamination, he denied that he stated to IO that at the time of accident, speed of the car was 5060 kmph. He was con fronted with his statement but he denied to have made the same. He further de nied that, being friend of the accused, he had falsely deposed the speed of the car to be 3040 kmph.
PW3 was duly crossexamined by Ld. Counsel for accused. During his crossexamination, PW3 stated that the passengers in the car themselves volun teered to sit in it and neither neither he nor the accused invited any one to sit in the car. He admitted that the occupants of the car were close friends. He further stated that it took few seconds to pick Abhishek from his flat as he was standing downstairs. He further stated that at the time of accident, the speed of the car must not have been more than 3540 kmph. He admitted that the driver of the car on the day of accident was alert and taking all precautions. He further stated that the vehicle which passed their car from the left side was a bigger one, was being driven at a high speed and there was a possibility of said vehicle colliding with FIR No. 123/2011 State v Abhimanyu Jamwal Page 6 of 36 their car had the driver of the car not taken a right turn. He further stated that in the past, he had never observed the accused driving any vehicle in rash or negli gent manner. He further admitted that the accused observes all the traffic rules. He denied that it was Kislay Kinshuk and not the accused that was driving the car at the time of accident. He admitted that the police never took him to the place of incident. He further stated that according to him, the driver of the car was not re sponsible for the accident that happened and that it was simple accident and no one was at fault.
4.4. Harish Kathuria was examined as PW4 who deposed that on 01.04.2011, he received notice u/s 133 MV Act from the IO and that he gave re ply to the same. Copy of the said notice was exhibited as Ex PW4/A. The reply was exhibited as Ex. PW4/B. He further stated that Maruti Swift Car bearing no. DL9CY 7734 was registered in the name of Habina Exports and that he is the proprietor of said firm. He further deposed that he gave the said vehicle to his son Udit Kathuria on 29.03.2011 at 8.00 a.m. and that at about 5.50 p.m., he received called regarding the road accident. He further stated that his car was seized and thereafter, he got released the said car on superdari. Copy of superdarinama was marked as Mark A. He further stated that his son told him that at the time of acci dent, the car was being driven by his friend Abhimanyu Jamwal.
The said witness was duly crossexamined by the Ld. Counsel for accused.
4.5. Archana Sethi was examined as PW5 who deposed that on 29.03.11, his son Shaurya Sethi was living at Rohini as PG with his friend Abhishek Sikari and on that day at about 05.20 pm, she called his son and asked about his location to which his son informed that he had started from the P.G. and that it will take FIR No. 123/2011 State v Abhimanyu Jamwal Page 7 of 36 him around 11 ½ hour to reach home. She further stated that within 15 minutes, his son Divey Sethi received one call from one of the friends of Shaurya Sethi re garding road accident of his son and that he had been admitted at MAX hospital. She further deposed that they reached at said hospital at about 07.30 pm and about 09.15 p.m., his son expired in the hospital.
Ld. Counsel for accused opted not to crossexamine the said witness despite opportunity being given for the same.
4.6. Bipin B. Singh was examined as PW6 who deposed that on 29.03.11, at around 06.00 pm, he received a call from his house that somebody has informed that an accident took place of his son Kislay and in that accident four boys had been injured. He further deposed that he rushed to Maharaja Agrasen Hospital from his office with his wife and when they reached at hospital, they came to know that their son was admitted in ICU taking his last breath and after few min utes he was declared 'dead'.
The said witness was duly crossexamined by the Ld. Counsel for accused.
4.7. Piyush Pandey was examined as PW7 who deposed that on one day in March 2011, he was coming from Kirti Nagar Metro station after dropping his friend and when he reached near Britannia Flyover, he saw a crowd on the other side of the road and he stopped his car and tried to go towards the crowd but due to traffic, he could not succeed and found no police or PCR van or Ambulance there. He further stated that he made call at 100 number and thereafter left the spot. He further stated that on 01.04.11, he was called at PS: Saraswati Vihar and his statement was recorded.
FIR No. 123/2011 State v Abhimanyu Jamwal Page 8 of 36Upon permission being granted, the said witness was crossexamined by Ld. APP for State. During his crossexamination, upon being shown his state ment under Section 161 Cr.P.C., he denied to have made the same. He further stated that he cannot say whether the accidental vehicle was Maruti Swift car or not and whether the registration no. of the vehicle was DL 9CY 7734 or not. He denied that he had seen the car turn turtle. He further stated that he cannot tell whether the accident took place on 29.03.2011 or not.
The said witness was duly crossexamined by Ld. Counsel for accused.
4.8. Neeraj Kumar was examined as PW8 who deposed that on 29.03.2011, at about 05.30 pm, he was coming from his office situated at Moti Nagar towards Rohini, Delhi in his car bearing no. DL 8C U 2453 and when he reached at Bri tannia Flyover and when he was slopping road of the flyover, he heard a noise of accident and saw that the accident had occurred on the other side of the road and public persons had gathered there; he stopped his car and made a call to police and left the spot. He further deposed that after 23 days, he was called at PS:
Saraswati Vihar where his statement was recorded. He further deposed that he had not seen the accident.
Upon permission being granted, the said witness was crossexamined by Ld. APP for State. During his crossexamination, he denied to have stated to the police that when he started to run over Britannia Flyover, he saw one Swift car which was coming at a high speed and got struck against the central verge of the road due to which the car got imbalanced or that the car struck against one poll and after that the car struck against the road and thereafter struck against the left side of the road or that the car again came in the middle of the road and turned turtle. He was confronted with his statement that he made to police.FIR No. 123/2011 State v Abhimanyu Jamwal Page 9 of 36
The said witness was duly crossexamined by the Ld. Counsel for ac cused.
In furtherance to order dated 09.05.2019 of Hon'ble High Court of Delhi, the said witness was again crossexamined by Ld. APP who was duly as sisted by Ld. Counsel for father of one of the deceased namely Kislay Kinshuk. During his crossexamination, the witness was shown the certified copy of the ev idence dated 22.12.2011 given by him before the Court of Sh. Sanjeev Jain, Ld. PO MACTII, Saket Courts, Delhi, in Suit Nos. 202/11 and 232/11. PW8 admit ted the same to be his evidence given in Saket Courts bearing his signatures at point A on all the three pages. The certified copy of evidence dated 22.12.2011 was exhibited as Ex. PW8/DA. PW8 further stated that whatever he stated before the MACT Court has not been recorded in Ex. PW8/DA. He admitted that what ever has been mentioned in Ex. PW8/DA is true and correct. He further stated that he had signed the statement Ex. PW8/DA without going through the same. He denied that he had signed the statement Ex. PW8/DA after going through the same or that he deposed falsely in this regard, having been won over by the ac cused and his father. He further denied that he was under pressure from the ac cused and his father and for this reason; he was absconding and appeared before this Court in pursuance of BWs issued by this Court. He admitted that he had not stated during the crossexamination in Ex. PW8/DA that he want to state some thing which had not been recorded. He denied that he had deposed falsely on 02.05.2013 before this Court to screen the accused from punishment as he had been won over by the accused and his father.
4.9. HC Abhimanu was examined as PW9 who deposed that on 29.03.2011, while posted as Duty officer from 04.00 pm to 12 midnight, he received rukka through Ct. Satyawan sent by SI V.D. Pandey at about 08.10 pm and on the basis FIR No. 123/2011 State v Abhimanyu Jamwal Page 10 of 36 of same, he registered the present FIR and made endorsement on the rukka. The copy of FIR was exhibited as Ex.PW9/A and the endorsement on rukka was ex hibited as Ex. PW9/B. Ld. Counsel for accused opted not to crossexamine the said witness despite opportunity being given for the same.
4.10. Manoj Kumar was examined as PW10 who deposed that he is a photog rapher by profession and on 29.03.11, at the instance of IO, he went to Britannia Chowk Flyover where he found one Swift Car bearing no. DL9CY 7734 in acci dental condition and that he took photographs of the spot as well as car from dif ferent angles. PW10 correctly identified 25 photographs which were shown to him; the said photographs were exhibited as Ex. P2 to P26. He produced the original CD which was prepared by him and the same was exhibited as Ex. P27.
Exhibition of the CD was objected by Ld. Counsel for accused.
The said witness was duly crossexamined by the Ld. Counsel for ac cused.
4.11. Sunny was examined as PW11 who denied remembering the exact date, month or year of incident but stated that the same took place about 23 years back. He further stated that on the date of incident, at about 0404.30 pm, he was coming from Punjabi bagh side and was going towards madhuban chowk on scooty and when he reached in the middle of flyover, he saw several persons were gathered there and 34 injured boys were sitting near the railing of flyover. He stopped one TSR and got shifted those injured boys and found one mobile phone lying and its battery was lying separately on the road, the screen was broken. He further deposed that thereafter he went to his factory and switched on that phone and found the home number in that mobile and dialed that number and one lady FIR No. 123/2011 State v Abhimanyu Jamwal Page 11 of 36 who was mother of the owner of that phone picked up the call and he told her re garding the accident and at about 09.3010 pm, he received call from the relative of owner, who told him that the injured had expired and he was asked to return the phone and thereafter, he returned his mobile phone.
Upon permission being granted, the said witness was crossexamined by Ld. APP for State. During his crossexamination, he was confronted with his statement made to the police and he denied to have made the same. He stated that he had not given any statement to the police.
The said witness was duly crossexamined by the Ld. Counsel for ac cused.
4.12. Retd. ASI Gurdeep Singh was examined as PW12 who deposed that on 30.03.11, he conducted mechanical inspection of one Maruti Swift Car bearing no. DL9CY 7734 and prepared his detailed report. The report was exhibited as Ex. PW12/A. The said witness was duly crossexamined by the Ld. Counsel for ac cused.
4.13. Harish Vaid was examined as PW13 who deposed that on 29.03.11, he went to Maharaja Agrasen hospital to see Kislay Kinshuk as he had sustained in juries in an accident and when he reached the hospital, he came to know that Kislay had expired and at about 09.30 pm, when he was returning to his house, he received a call from father of Kislay Kinshuk who told him that mobile phone of Kislay Kinshuk was picked up by one eye witness and he should collect the said phone from him. He further deposed that thereafter, he called the witness, who told him that he live in Rohini and told PW13 to collect the phone from Sachdeva Public School where he handed over the mobile phone of Kislay Kinshuk. He fur FIR No. 123/2011 State v Abhimanyu Jamwal Page 12 of 36 ther deposed that when he asked the witness as to what he knows about the inci dent, he replied that when he reached at Britannia flyover, one swift car was be ing driven at a high speed and the said car hit the central verge of the road and that the accident occurred as the car was at high speed i.e. about 90100 kmph and the driver lost his control over the car and the driver was wearing ear phones in his ears.
The said witness was duly crossexamined by the Ld. Counsel for ac cused.
4.14. Dr. Vijay Dhankad, HOD, Forensic Medicine, BSA Hospital, Rohini, Delhi deputed by MS BSA Hospital to depose on behalf of Dr. J.V. Kiran was ex amined as PW14. He stated that he can identify the handwriting and signatures of Dr. J.V. Kiran. He further deposed that on 30.03.2011, Dr. J.V. Kiran conducted postmortem on the dead body of deceased Kislay Kinshuk and Shaurya Sethi and prepared his detailed reports which were exhibited as Ex. PW14/A and Ex. PW14/B. The said witness was duly crossexamined by the Ld. Counsel for ac cused.
4.15. Dr. Vinod Yadav, SR Radiology, SGM Hospital, Mangolpuri, Delhi was examined as PW15 who deposed that on 29.03.2011, he was working at Ma haraja Agrasen hospital as a Casualty Medical Officer and at about 05.50 pm, in jured Sushant was admitted with alleged history of RTA near Britannia over bridge and that he examined the injured and prepared his MLC which was exhib ited as Ex. PW15/A. The said witness was duly crossexamined by the Ld. Counsel for ac cused.
FIR No. 123/2011 State v Abhimanyu Jamwal Page 13 of 364.16. Dr. J. Kumar, Senior Neuro Surgeon, Yashoda Hospital, Ghaziabad was examined as PW16 who deposed that on 23.04.11, he was working at Max Hospital and on that day, injured Sushant was admitted at Max Hospital and that he examined the injured and on 05.05.11, he gave his opinion as grievous injuries on MLC no. 574/11 already exhibited as Ex. PW15/A. The said witness was duly crossexamined by the Ld. Counsel for ac cused.
4.17. Parshuram Singh, Asst. Director, Physics, FSL, Rohini, Delhi was ex amined as PW17 who deposed that on 01.04.11, on the request of Insp. Satish Kumar, he along with Jaspreet Kaur, Scientific Associate and Prakash Chand, Scientific Associate (Photo) examined the Maruti Swift Car bearing no. DL9CY 7734 as well as the place of occurrence i.e. Britannia Flyover, Shakurpur, Delhi and prepared his detailed report and the said report was exhibited as Ex. PW17/A. PW17 was of the opinion that the right portion of the car (swift) could jump on the divider and break the railing (metallic pipe) on the divider and overturn to wards left side due to imbalance.
The said witness was duly crossexamined by the Ld. Counsel for ac cused.
4.18. W/ Ct. Savita was examined as PW18 who deposed that on 29.03.11, she was posted at CPCR, PHQ and at about 05.33 pm, she received information from one Piyush Pandey regarding accident at Britannia Flyover. She further de posed that she filled the same information to computer and thereafter the said in formation was dispatched to communication staff. Computerized PCR form was exhibited as Ex. PW18/A. FIR No. 123/2011 State v Abhimanyu Jamwal Page 14 of 36 The said witness was duly crossexamined by the Ld. Counsel for ac cused.
4.19. HC Sahib Singh was examined as PW19 who deposed that on 29.03.2011, he was deputed as MHCM and received one Maruti Swift Car bear ing no. DL9CY 7734 and thereafter, he deposited the same to maalkhana and wrote entry no. 3388 in register no. 19. The copy of relevant entry was exhibited as Ex. PW19/A. Ld. Counsel for accused opted not to crossexamine the said witness despite opportunity being given for the same.
4.20. Sanjay Sekhri was examined as PW20 who deposed that on 29.03.2011 at about 05.30 pm, he received one phone call from unknown person that his son met with an accident near Shakur basti and after some time, he received call from one police official who also informed about the accident and further informed him that police officials had taken him to Maharaja Agrasen hospital and that he also talked to his son Abhishek on phone. He deposed that on 31.03.2011 at 12.04 am, his son was admitted in fortis and was discharged on 23.04.2011 and police recorded his statement on 06.04.2011.
Ld. Counsel for accused opted not to crossexamine the said witness despite opportunity being given for the same.
4.21. Chittar Singh, Driver badge of Conductor, Licensing Authority, Dwarka, Delhi was examined as PW21 who produced the documents of the vehi cle bearing no. DL9CY 7734 alongwith forwarding letter of Motor Licensing Of ficer, South West ZoneI, Palam, Dwarka. The documents were exhibited as Ex.PW21/A. FIR No. 123/2011 State v Abhimanyu Jamwal Page 15 of 36 The said witness was duly crossexamined by the Ld. Counsel for ac cused.
4.22. HC Satyawan Rathi was examined as PW22 who deposed that on 29.03.2011, at about 05.45 pm, he along with IO reached at the spot where Swift DL9CY 7734 was lying overturned in accidental condition and they came to know that the injured persons were taken to Maharaja Agrasen Hospital and one person was taken to MAX hospital and that IO left him at the spot and IO went to Maharaja Agrasen Hospital and came back at the spot after about 1 hour and pre pared the tehrir and seized the vehicle vide memo exhibited as Ex. PW22/A. Thereafter they reached at the PS along with offending vehicle, and came to know that the injured who was admitted in Max hospital had expired and that he along with IO went to Max Hospital where the IO collected the documents regarding the death of injured and IO received dead body and after that they reached at Ma haraja Agrasen hospital where one of injured had also expired. IO collected the documents and the dead body and IO deposited both the dead bodies in mortuary of BSA hospital for conducting the postmortem.
Upon permission being granted, the said witness was crossexamined by Ld. APP for State. During his crossexamination, he admitted that photographs were taken at the spot and that he took the rukka to PS: Saraswati Vihar for regis tration of FIR and after registration he reached at the spot along with copy of FIR and handed over the same to the IO.
The said witness was duly crossexamined by the Ld. Counsel for ac cused.
4.23. Retired SI V.D. Pandey was examined as PW23 who deposed that on 29.03.2011, he was posted as SI at PS: Saraswati Vihar and at about 05.45 pm, he FIR No. 123/2011 State v Abhimanyu Jamwal Page 16 of 36 received DD no. 27A and he along with Ct. Satyawan reached at Britannia fly over where Swift Car bearing no. DL9CY 7734 was standing in accidental condi tion and they came to know from public persons that after the incident the car was lying overturned and they also came to know that injured were shifted to Ma haraja Agrasen hospital and Max hospital. He further deposed that he left Ct. Satyawan at the spot and reached at Max Hospital and collected the MLC of Shaurya Sethi where it was mentioned that the injured was unfit for statement. He further deposed that he thereafter reached at Maharaja Agrasen hospital and col lected th MLC of Kislay, Ahishek and Sushant and they were unfit for statement. He further deposed that he came back at the spot and prepared tehrir (Ex.PW9/B) and handed over the same to Ct. Satyawan who was sent to PS for registration of FIR and in the meantime, photographs of the spot were taken by private photogra pher. Thereafter Ct. Satyawan came back at the spot and handed over the Copy of FIR and original tehrir to him. He further deposed that the car was taken in pos session vide memo (Ex. PW22/A) and that he along with Ct. Satyawan took the accidental vehicle to PS where he came to know from DO that injured Shaurya Sethi who was admitted in Max Hospital, had expired and he along with Ct. Satyawan reached at Max Hospital and collected the medical documents as well as received the dead body of Shaurya Sethi and in the meanwhile, he came to know from the concerned Duty officer that injured Kislay who was admitted in Maharaja Agrasen hospital had also expired and thereafter; he along with Ct. Satyawan collected the medical documents as well as received the dead body of Kislay. He further deposed that he took the dead bodies to BSA hospital for their postmortem and that he called Ct. Sandeep in BSA hospital to look after the dead bodies and post mortem of the dead bodies were conducted and thereafter, dead bodies were handed over to their relatives. He further deposed that he got con ducted the mechanical inspection of above said offending vehicle and mechanical FIR No. 123/2011 State v Abhimanyu Jamwal Page 17 of 36 inspector prepared his report (Ex. PW12/A) and that he gave notice u/s 133 MV Act (Ex. PW4/A) and on 31.03.2011, he recorded statement of injured Sushant. He further deposed that on 01.04.2011, according to instructions of Insp. Satish Kumar, he took the CFSL team to the spot for inspection of the same and the CFSL team conducted the inspection of the spot and prepared rough draft and they told him that they would give final report later on. He further deposed that on the same day, further investigation was marked to Insp. Satish Kumar and Insp. Satish Kumar seized the insurance and photocopy of RC vide memo Ex. PW9/C. He further deposed that on 05.04.2011, he along with Insp. Satish Kumar (IO of the case) and the MHCM conducted the inspection of said offending car and IO collected the sample of orange colour paint from the car and seized the same vide memo Ex. PW9/D and thereafter, he along with IO went to the spot and IO took the sample of orange colour paint, after scratching the same from the side of the road/ central verge and seized the same vide memo Ex. PW9/E. He further deposed that IO called the private photographer and got clicked the photo graph of the spot. He correctly identified the 25 photographs of the spot and the car and the same were exhibited as Ex. P1 to P25.
The said witness was duly crossexamined by the Ld. Counsel for ac cused.
4.24. Om Prakash, record keeper, State Transport Authority was examined as PW24. He produced the attested copy of details of driving license bearing no. DL0320100163964 issued in name of the accused and as per report, the above said license is valid from 17.07.2010 till 16.07.2030. The attested copy was ex hibited as Ex. PW24/A. Ld. Counsel for accused opted not to crossexamine the said witness despite opportunity being given for the same.
FIR No. 123/2011 State v Abhimanyu Jamwal Page 18 of 364.25. HC Shriman Lal was examined as PW25 who deposed that on 07.04.2011, while posted at PS: Saraswati vihar, he had gone from Rohini Court to B8/8, Sector15, Rohini on motorcycle behind the car of Insp. Satish Kumar. He further stated that accused was with Insp. Satish Kumar in the car and when he reached at Sector15, IO asked him to note down the meter reading of motor cycle from B8/8 Sector15 Rohini to the place of incident i.e. Britannia flyover and that he went behind the car of IO and noted down the distance from B8/8, Sector15, Rohini to Britannia flyover through the meter reading of motorcycle as per instruction of IO and found that the distance was about 8.5 km to 8.75 km. He further stated that they passed through Sachdeva Public School, K.N. Marg, Outer Ring Road, Income Tax Colony, City Park Hotel, Gopal Mandir, R.P. Chowk, TV Tower, Delhi Hut and Nehru Subhash Place and thereafter returned to PS Saraswati Vihar. He further stated that pointing out memo of scene was prepared and the same was exhibited as Ex. PW25/A. He further deposed that on 09.04.2011, he visited transport authority Palam for getting verification of RC of car but due to Saturday the office was found closed and then he visited at ac cused's house where father of the accused handed over accused's original driving license to him and thereafter, he reached at the house of deceased Surya Sethi and at the house, the father of Surya Sethi handed over, some documents in reply of notice u/s 91 Cr. P.C and thereafter, PW25 went to PS: Saraswati Vihar and handed over all the documents to IO. He further deposed that on 02.05.2011, on the instructions of the IO, he obtained two samples duly sealed with seal of SK from MHCM along with FSL form, seizure memo with road certificate no. 50/21/11 and he deposited the same in FSL, Rohini and received the receipt of the same and handed over the same to IO.
The said witness was duly crossexamined by the Ld. Counsel for ac cused.
FIR No. 123/2011 State v Abhimanyu Jamwal Page 19 of 364.26. IO Satish Kumar was examined as PW26 who deposed that on 01.04.2011, he was posted at PS: Saraswati Vihar as Inspector and on the same day, further investigation was marked to him by the SHO PS: Saraswati Vihar and that he had sent a letter through Constable to Director of FSL for deputing an expert team for scene of crime visit and for inspection of accidental vehicle and copy of same was exhibited as Ex. PW26/A. He further deposed that in the evening, Harish Kathuria, owner of said vehicle had come to PS in compliance of notice u/s 133 MV Act, which was issued by earlier IO. He further deposed that he examined Harish Kathuria, who also gave reply Ex. PW4/B to the said notice and that he seized original insurance policy and copy of RC vide memo Ex. PW9/C. He further deposed that he accompanied him to his residence in Patel Na gar to examine his son Udit Kathuria and recorded statement of Udit and recorded statement of Harish Kathuria. He further deposed that he came back to the PS and recorded statement of earlier IO. He further deposed that on 02.04.2011, while he was returning from Saket Court, he went to the house of Abhishek Sekri in Greater Kailash and found the premises locked and came to know that the injured was admitted in Fortis Hospital, Noida and thereafter, he came back to PS. He further deposed that on 04.04.2011, he had sent Ct. Sriman Lal with instructions to serve notice u/s 91 Cr. P.C to the house of Sushant Rao, one of the injured per son at Ramprastha, Ghaziabad and from where it was revealed that injured Sushant Rao was admitted in MAX hospital and gave instructions to Ct. Sriman Lal to serve notice u/s 91 Cr. P.C, at the hospital and he came back to PS. He fur ther deposed that on 05.04.2011, he along with Ct. Sriman Lal went to Malviya Nagar to the house of one of the deceased Shaurya Sethi where he met with the parents of the deceased and he recorded the statement of Mrs. Archana Sethi with whom the deceased Shaurya Sethi had a telephonic talk with his phone at about 05.25 pm on 29.03.2011, just about five minutes prior to the PCR call regarding FIR No. 123/2011 State v Abhimanyu Jamwal Page 20 of 36 the accident at Britannia flyover and during investigation, the location of de ceased mobile phone at that time was near Hotel City Park, Pitampura, which is about four and half kilo metres away from the spot and as per the direction of Archana Sethi and Mahesh Sethi, mother and father of the deceased, he gave no tice u/s 91 Cr. P.C to Divey Sethi, brother of deceased. He further deposed that they came to Andrews Ganj extension in HUDCO place at accused's house and interrogated the accused and served a notice u /s 91 Cr. P.C and then went to the house of B.B. Singh, father of the deceased, Kislay Kinsukh Singh residing in Ravinder Nagar and served him notice u/s 91 Cr. P.C and came back to PS and called the photographer Manoj, in he presence of 1 st IO and MHCM HC Sahab Singh and inspected the vehicle and photographs were taken by photographer Manoj and then he scratched the paint flakes of the said car and put it into the plastic container and prepared pullanda of sample and sealed with seal of SK and seized the said samples vide memo Ex. PW9/D and he along with 1 st IO and pho tographer went to the spot and inspected the site and took sample of orange colour paint from central verge and seized the sample vide memo Ex. PW9/E and came back to PS and recorded the statement of 1 st IO, MHCM and photographer Manoj. He further deposed that on 06.04.2011, he analyzed that call detail records as well as CAF of mobile phone of all six students and analyzed the CDR of mo bile phone numbers of Archana Sethi and Divey Sethi who all supported that on 29.03.2011, at about 05.15 pm, the students were near B8/8, Sec15, Rohini and at about 05.25 pm, they were near the hotel City Park and finally PCR call re garding accident was first received at about 05.30 pm. He further deposed that he also obtained 09 PCR calls regarding the accident call made on that day between 05.30 to 05.35 pm and those PCR callers were later on examined by him regard ing this accident and some of them joined the investigation and their statement were recorded u/s 161 Cr. P.C and thereafter, he along with Ct. Shriman Lal went FIR No. 123/2011 State v Abhimanyu Jamwal Page 21 of 36 to Fortis Hospital, where he met with Abhishek Sekri and his father namely San jay sekri and served them notice u/s 91 Cr. P.C and copy of said notice was ex hibited as Ex. PW26/B and recorded their statement u/s 161 Cr. P.C and there after, he along with Ct. Shriman Lal went to the house of one of the injured Sushant Rao and met with his father and also served them notice u/s 91 Cr. P.C and copy of said notice was exhibited as Ex. PW26/C and recorded statement of Sushant Rao and his father. He further deposed that thereafter, he went to Sec15, Rohini near H No. B8/8, Sec15, Rohini and noted that there were ten red lights, two blinker lights and ten Tpoints without any light in the said route and the dis tance between the spot and the point was found to be about 08.05 08.75 kms and returned back to PS. He further deposed that on 07.04.2011, PW26 called the ac cused to Rohini courts in the afternoon hours and from where he took him in his car and went to H No. B8/8, Sec15, Rohini and Ct. Shriman Lal also followed him on his official motorcycle and from there, they started for the place of acci dent as per the route guided by the accused. He further deposed that he noted down and prepared sketch of this route. He further stated that he noted down and prepared the pointing out memo as to the scene of the accident containing the de tails of route taken by he accused and that the pointing out memo was already ex hibited as Ex.PW25/A. He further stated that he seized the driving license of the accused vide memo exhibited as Ex.PW26/D and that he arrested and personally searched the accused vide memo exhibited as Ex. PW26/E and PW26/F respec tively. He further deposed that he wrote various letters to the different authorities ie Registrar/ Admn. Officer DTU, Transport Authority, MLO South Zone, MLO Palam, Nodal Officer of ICICI Lombard, General Insurance Co. Ltd., Sub regis trar, Central Zone, Lajpat Nagar, Sub Registrar South Zone, Sub Registrar North Zone and the copy of said letters was exhibited as Ex. PW26/G to PW26/O. He further deposed that on 08.04.2011, at the instance of Udit Kathuria, PW26 pre FIR No. 123/2011 State v Abhimanyu Jamwal Page 22 of 36 pared site plan Ex. PW2/A and obtained opinion of concerned doctor regarding the nature of injury sustained to injured persons and deceased on their respective MLCs and on 23.04.2011, he collected the post mortem reports of the deceased persons and on 23.04.2011, photographer Manoj handed over a CD of photo graphs of scene of crime and offending vehicle. He further deposed that he seized the CD vide memo exhibited as Ex. PW26/P and CD was exhibited as Ex. P27. He further deposed that he wrote a letter to Maruti Suzuki company for assess ment of internal and external impact on the vehicle and in order to ascertain the speed of the offending vehicle at the relevant time and after some time, the offi cial of Maruti Suzuki made the said assessment and submitted their report Ex. P2. He further deposed that he had filed the said report along with supplementary charge sheet and had also sent the case property to FSL and FSL report was re ceived in the PS which was later filed with supplementary charge sheet and the said result was already exhibited as Ex. P1. He further deposed that on 01.04.2011, FSL team had also visited the spot and had conducted the inspection of the offending vehicle and later on, they submitted their report Ex. PW17/A in respect of the same. He further deposed that he also recorded the statement of witnesses u/s 161 Cr. P.C and has submitted the documents before MACT court and had filed main charge sheet after completion of investigation and thereafter, he was transferred from PS: Saraswati Vihar. During evidence, PW26 has cor rectly identified the case property which was produced by the MHCM.
The said witness was duly crossexamined by the Ld. Counsel for ac cused.
4.27. ASI Arun was examined as PW27 who deposed that he is working as MHCM at PS: Saraswati Vihar since 2015. He produced the summoned record i.e. register no. 19 and as per the record, on 29.03.2011, IO/ SI V.D. Pandey de posited the case property i.e. one swift car no. DL 9C Y 7734 in accidental condi FIR No. 123/2011 State v Abhimanyu Jamwal Page 23 of 36 tion to the then MHCM and the same has been mentioned in the said register at column no. 4 vide entry no. 3388/11. Copy of said entry was exhibited as Ex. PW27/A. He further stated that on 27.11.12, the said vehicle was released on su perdari. He further deposed that on 05.04.2011, IO/ Insp. Satish Kumar deposited traces of orange colour paints on car and sample paint of orange colour painted on the road fitted/ fixed on the central verge and the same has been mentioned in register no. 19 at column no. 4 vide entry no. 3398/11. Copy of said entry was ex hibited as Ex. PW27/B. He further deposed that on 02.05.2011, the then MHCM handed over the said samples for analysis at FSL through Ct. Shriman Lal vide RC no. 50/21/11 and copy of register no.21 was exhibited as Ex. PW27/C and on 26.07.2011, the then MHCM received result of said samples from FSL and it was entered in register no. 19 and on 23.04.2011, IO/ Insp. Satish Kumar deposited a CD and the same has been mentioned in register no. 19, vide entry no. 3427/11. Copy of said entry was exhibited as Ex. PW27/D. The said witness was duly crossexamined by the Ld. Counsel for ac cused.
5. Upon completion of prosecution evidence, the accused was examined in accordance with Section 313 Cr.P.C. The entire incriminating evidence was put to him who denied the same and stated to be innocent and to have been falsely implicated. He further stated that he was not driving the offending vehicle at the relevant time and that it is a false case and just to make a ground for getting compensation under Motor Vehicle Act and all the witnesses have deposed falsely at the instance of the IO in connivance with family members of the deceased. The accused opted not to lead any evidence in his defence.
6. Final arguments were heard.
FIR No. 123/2011 State v Abhimanyu Jamwal Page 24 of 367. Ld. APP for the State argued that on the basis of the entire evidence brought on record, the guilt of the accused has been established beyond reasonable doubt and accordingly, the accused be convicted. He further argued that from the testimony of PW1, PW2 and PW3 it is established that the accused was driving the offending vehicle and that PW2 who was sitting on the front side of the vehicle with the accused identified the spot and the vehicle. He further argued that the aforesaid witnesses identified the manner in which accident occurred and although the speed of the vehicle was not stated but it is settled law that speed is not related to rashness or negligence. He relied upon the judgment of Hon'ble Supreme Court in Ravi Kapoor v State of Rajasthan wherein it was observed that it is the duty of the accused to drive the vehicle in safe manner. He further argued that the first PCR call was received at 05:30 pm and mother of one of the deceased namely Shaurya Sethi called him at 5:22 pm and PCR calls being substantial piece of evidence, it is established that the accused covered a distance of 45 kms in 56 minutes and it follows that the accused did not act with due care.
8. Ld. Counsel for the father of deceased Kislay Kinshuk argued that damage to the central verge and the fact that two persons fell outside the vehicle do no support that the vehicle was being driven at the speed of 3040 kmph. He further argued that the impact assessment report was admitted by the accused and from the said report, it is apparent that the car was totally damaged and such an impact could not have been there had the speed of the car be 3040 kmph. He further argued that document Ex.PW8/DA was proved as per law and its exhibition was never objected to by the defence and that site plan, mechanical accident report, impact assessment report were also admitted by the accused. He further argued that the accused raised false defence that he was not driving the FIR No. 123/2011 State v Abhimanyu Jamwal Page 25 of 36 offending vehicle and that this is also a circumstance pointing towards the guilt of the accused.
9. On the other hand, Ld. Counsel for the accused argued that no statement was recorded on the day of incident and no eye witness was found at the spot and it was only on 31.08.2011 that the statements were recorded. He further argued that PW2 specifically stated the speed of the vehicle to be normal i.e. around 3040 km/h. He further argued that PW1, PW2 and PW3 were travelling in the same car with the accused and are the best persons to tell the speed and manner in which the vehicle was being driven and that all the said witnesses deposed to the same effect that the vehicle was being driven properly in the middle lane and sudden turn was taken only to avoid collision. He further argued that all the alleged eye witnesses of the incident i.e. PW7, PW8 and PW 11 turned hostile and did not support the case of the prosecution. He further argued that although PW17 was examined but no photographs were placed on record regarding the inspection / examination of the site of incident and the offending vehicle. He further argued that in the testimony of PW18 it is mentioned that information regarding accident involving 34 vehicles was received which is contradictory to the prosecution story. He further argued that although PW25 and PW26 deposed that a dry run was conducted to determine the distance covered by the offending vehicle on the day of incident and to further establish its speed but no data was ever furnished and accordingly the distance or the speed of the vehicle is not proved. Further, no DD entry regarding the dry run was ever produced by PW25. He further argued that although PW10 produced the CD of the photographs of the spot of incident as well as the accidental car but since the same was not supported with any certificate under the Evidence Act, the same cannot be taken into consideration.
FIR No. 123/2011 State v Abhimanyu Jamwal Page 26 of 3610. Ld. Counsel for the father of deceased Kislay Kinshuk as well as accused also filed written submissions and also relied upon certain judgments in support of their arguments.
Applicable Law, Appraisal of Evidence and Finding
11. Section 279 IPC provides penalty for rash driving or riding on a public way. It provides that 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 in jury to any other person, shall be punished with imprisonment of either descrip tion for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Further Section 338 IPC penalises the act of causing grievous hurt by act endangering life or personal safety of others. It provides that Whoever causes grievous hurt to any person to 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 two years, or with fine which may extend to one thousand rupees, or with both.
Further Section 304A IPC penalises the act of causing death by negli gence. It provides that 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.
12. Accordingly, in order to establish the liability of the accused under Section 279 IPC, the prosecution is required to prove that the car bearing no. DL FIR No. 123/2011 State v Abhimanyu Jamwal Page 27 of 36 9C Y 7734 was involved in the alleged incident; that accused was driving the said vehicle on a public way; that the accused was driving the said vehicle in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or in jury to any other person.
Further, in order to establish the liability of the accused under Section 338 IPC, the prosecution is required to prove that the grievous injury was caused due to the act of the driver/accused and that such act was rash or negligent.
Further, in order to establish the liability of the accused under Section 304A IPC, the prosecution is required to prove that the death was caused due to the act of the driver/accused and that such act was rash or negligent.
13. PW1, PW2 and PW3 categorically stated that on 29.3.2011 when they were travelling with the accused in the car bearing No.DL 9C Y 7734, said car was involved in an accident. PW2 and PW3 further deposed that the accident took place at around 05.30 pm; when their car was in middle lane, some other vehicle came from left side and to save themselves, accused took steep right turn due to which the car hit the central verge of the flyover and that after the accident they saw that Kislay, Shaurya and Abhishek were lying on the road due to the acci dent. Prosecution also relied upon the testimony of PW7, PW8 and PW11 i.e. the alleged eye witnesses to the incident. However, none of the said witnesses deposed that they saw occurrence of accident but PW8 deposed to the effect that on 29.03.2011 at relevant time, an accident took place at Britannia Flyover and PW11 deposed to the effect that on the relevant day, time and place, he helped shift the injured persons to hospital and that he picked up one mobile from the road which was later found to belong to one of the deceased persons.
Further, accused admitted FSL result/ report no. 2011/P2194/Phy 81/11/8281 dated 22.07.2011 prepared by Sh. Parshuram Singh, Senior Scientific Official (Ex.P1) wherein it was opined that samples of paint deposited for FIR No. 123/2011 State v Abhimanyu Jamwal Page 28 of 36 examination i.e. the paint found on vehicle bearing no. DL 9CY 7734 and the paint collected from rod fitted with central verge at the place of incident were similar in respect of colour, texture, microscopic appearance, appearance under UV Light and FTIR spectra.
Also, the fact of occurrence of accident was not disputed by the accused.
14. Although the accused denied having been driving the car bearing no. DL 9CY 7734 at the time of alleged incident however, PW1, PW2 and PW3 i.e. the persons who were travelling with the accused at the time of alleged incident categorically stated that the aforesaid car was being driven by the accused at the time of alleged incident. As argued by the Ld. Counsel for accused, since the said persons were travelling with the accused, they are the best witnesses to depose the course of event as occurred; there is no reason to disbelieve the testimonies of PW1, PW2 and PW3 regarding the fact that accused was driving the car bearing no. DL 9CY 7734 at the time of incident.
15. In view of the above, it can be concluded that the car bearing no. DL 9CY 7734 was involved in the incident in question and that the said vehicle was being driven by the accused.
16. PW1, PW2 and PW3 also testified that the deceased persons namely Kislay Kinshuk and Shaurya Sethi were also travelling with them in the car at the time of accident and suffered serious injuries in the said accident. The opinion as to the cause of their death has been specifically stated in their post mortem reports. According to post mortem report of Kislay Kinshuk i.e. Ex. PW14/A, the cause of death was hemorrhage and shock consequent to blunt force impact to the FIR No. 123/2011 State v Abhimanyu Jamwal Page 29 of 36 abdomen and that all injuries were ante mortem, fresh in duration and caused by road traffic accident. According to post mortem report of Shaurya Sethi i.e. Ex. PW14/B, the cause of death was combined effect of hemorrhage and shock and craniocerebral damage consequent to blunt force impact to the head and that all injuries were ante mortem, fresh in duration and caused by road traffic accident.
17. Further from testimony of PW1, PW2 and PW3, the fact that injured Abhishek Sekhari and Sushant Rao were travelling with the accused at the time of accident and suffered injuries in the said accident is established and PW15 specifically deposed that on 29.03.2011, he examined the injured Sushant who was admitted with alleged history of RTA and prepared his MLC and PW16 deposed that on the basis of examination of injured and MLC, he gave his opinion that the nature of injuries suffered were grievous.
18. Accordingly, the facts that the car bearing no. DL 9C Y 7734 was involved in the alleged incident; that the accused was driving the alleged offending vehicle on a public way and that the death of Kislay Kinshuk and Shaurya Sethi occurred due to the injuries suffered by them in the incident and that Abhishek Sekhari suffered injuries and Sushant Rao suffered grievous injuries in the said incident are established.
19. Now, it is to be determined whether the accused was driving the vehicle in rash or negligent manner.
20. In Rathnashalvan vs. State of Karnataka (2007), the Hon'ble Apex Court has observed that:
Culpable negligence lies in the failure to exercise reasonable and FIR No. 123/2011 State v Abhimanyu Jamwal Page 30 of 36 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.
"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."
21. It was submitted by the Ld. Counsel for father of the deceased Kislay Kinshuk that from the testimony of prosecution witnesses, it is established that speed of the offending vehicle bearing no. DL 9C Y 7734was beyond speed limits prescribed for that particular area as distance between B8/8 Sector 15, Rohini FIR No. 123/2011 State v Abhimanyu Jamwal Page 31 of 36 and place of incident was approximately 8.58.75 Km which was covered in 12 13 minutes. He based his arguments on testimony of PW26 and PW25 who deposed to have followed the route taken by the accused on the day of incident and to have observed that distance between B8/18 Sector 15, Rohini and place of incident was approximately 8.75 Km. He further relied upon testimony of PW5 who deposed that on 29.03.2011, at 5:20 p.m., she called her son Shaurya Sethi and as per the CDR, the location of Shaurya Sethi was near the accident site. He further relied upon testimonies of PW8, PW13 and PW18 and submitted that from the said testimonies it follows that accident must have occurred at some time prior to 5.30 p.m. as information regarding the same was received around 5.30 p.m. He further submitted that in view of the above it can be concluded that the accused covered the distance of 8.58.75 Km with 10 red lights on the way in short span of about 1213 minutes (5:15 p.m.to 5:285:29 p.m.) which would not have been possible unless the accused was driving the car beyond permissible speed limits. He relied upon document Ex.P3 i.e. the notification regarding speed limits on Delhi roads issued vide no. 60006150/TE (DII)/ traffic dated 20.05.2010 Ex.P3 wherein the maximum permitted speed limit for cars, jeep, two wheelers etc. on the Outer Ring Road, Ring road and residential areas/commercial markets i.e. the route taken by the accused is 60 Kmph, 50 Kmph and 25 Kmph. In reply, it was argued by Ld. Counsel for accused that no data for arriving at the said conclusion was ever produced and in the absence of same no conclusion regarding the speed can be arrived at.
Ld. Counsel for father of the deceased Kislay Kinshuk further submitted that as a result of impact of accident, the car had turned turtle and had sustained severe damage which was only possible if the car was being driven rashly which led to the car colliding with the central verge of the divider of the fly over. He relied upon the document Ex.P2 i.e. the Impact Assessment Report FIR No. 123/2011 State v Abhimanyu Jamwal Page 32 of 36 wherein it was mentioned that probable cause of accident could not be attributed to any manufacturing defect but was the result of wrong driving judgment in the evening on the flyover and loss of control after hitting the right side central verge.
He further submitted that the huge impact created by the accident is further proved by FSL Report Ex.P1 wherein it was observed that cylindrical metallic pipe of the divider towards the road leading to Punjabi Bagh was found broken and some part was found missing and such an impact would have been possible only if the vehicle was being driven at a very high speed.
He further relied on document Ex.PW8/DA i.e the testimony of PW8 before MACT Court and the fact that the said witness admitted before this Court that whatever he stated before MACT Court was true and correct. He argued it is settled law that evidence of hostile witnesses can be relied upon to the extent to which it supports the prosecution evidence.
He further submitted that the aforesaid circumstances further call for invoking the principle of Res Ipsa Loquitor.
22. Submissions made by the parties have been duly considered. Although, as stated by Ld. Counsel for accused, no data was produced regarding the conclusion arrived at by PW26 regarding the distance covered by the offending vehicle but even if the testimony of PW25 and PW26 is taken on its face to be correct, even then the average speed of the vehicle can only be calculated and not the speed of the vehicle at the time of incident. As per the arguments, a distance of 8.58.75 Km was stated to be covered on the day of incident in a period of about 1213 minutes and accordingly, average speed of the vehicle, on the basis of the aforesaid testimony will be approximately 42.5 Kmph. The maximum permissible limit has been established by document Ex.P3 but it cannot be determined with certainty as to what would have been the speed at the time of FIR No. 123/2011 State v Abhimanyu Jamwal Page 33 of 36 incident and whether and at which point of time the accused drove the vehicle at a speed more than the prescribed limit. Further, it is a settled position of law that high speed in itself is not enough to convict an accused under section 279/304A IPC. Moreover, it is also a settled position of law that a witness cannot give his opinion as to whether the vehicle was being driven in a rash or negligent manner. The fact whether vehicle was being driven in a rash or negligent manner is required to be deduced from the circumstances in each case. In order to arrive at any conclusion regarding rashness and negligence, speed alone cannot be the sole determining criterion. Rashness lies in hazarding a wanton act with indifference as to its consequences and negligence implies breach of duty of care. The test is of a reasonable and prudent person i.e. the care which a reasonably prudent person is expected to observe in similar circumstances.
23. In the present case, PW2 and PW3 categorically stated that at the time of incident, the speed of the vehicle was around 40 Kmph and that on the day of incident, the driver of the car was alert and taking all precautions.
24. Further although heavy reliance is placed by the prosecution on docu ment Ex.PW8/DA however, since PW8 made contradictory statements, the said witness is unreliable and conviction of accused cannot be based merely on his de position before MACT Court without any other corroborative material.
25. Further even though it was mentioned in the Impact Assessment Report wherein it was stated that the accident must have occurred due to wrong driving judgment in the evening on the flyover and loss of control after hitting the right side central verge but it was stated by PW2 and PW3 that the sudden turn was taken by the accused to avoid collision with another vehicle and accordingly, the FIR No. 123/2011 State v Abhimanyu Jamwal Page 34 of 36 said act was necessitated from the circumstances which were beyond the control of the accused and hence, accused cannot be held liable for the same.
26. Further as to the argument that from the effect/impact on the rods attached to central verge or the fact that the vehicle turned turtle it is apparent that the vehicle was being driven at a high speed ; no basis for such an argument is placed on record.
27. It was also argued by Ld. Counsel for father of deceased Kislay Kinshuk that false defence raised by the accused that he was not driving the offending vehicle is also a circumstance pointing towards the guilt of the accused. However, before a person can be held liable for commission of any offence, the prosecution has to establish his guilt beyond reasonable doubts. In the present case, the entire case of the prosecution is based merely on conjectures and surmises. No fact has been brought on record which points towards the guilt of the accused. Merely because accused made a false statement that he was not driving the offending vehicle, it cannot be said that his guilt has been established as the burden still lies upon the prosecution to establish the essential ingredients of the offence and reverse onus cannot be cast upon the accused.
28. Upon considering the facts and circumstances of the facts of the present case in totality and in view of testimony of PW2 and PW3, it does not appear that the accused was driving the vehicle without any alertness and carefulness or that he did not have any control over the vehicle because of his rash driving rather PW2 and PW3 categorically stated that on the day of incident, the driver of the car was alert and taking all precautions and was driving the vehicle at a normal speed.
FIR No. 123/2011 State v Abhimanyu Jamwal Page 35 of 3629. In view of the above, it can be concluded that prosecution has not been able to establish the ingredients of the offence under Section 279/338/304A IPC beyond reasonable doubts.
30. Accordingly, the accused Abhimanyu Jamwal is acquitted of the offence under Section 279/338/304A IPC. Digitally signed by UPASANA UPASANA SATIJA Announced in the open Court SATIJA Date:
2019.11.20 on 19th November, 2019 15:49:20 +0530 (UPASANA SATIJA) METROPOLITAN MAGISTRATE1 ROHINI DELHI FIR No. 123/2011 State v Abhimanyu Jamwal Page 36 of 36