Delhi District Court
State vs Mahesh Kumar on 25 September, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE07,
WEST, TIS HAZARI COURTS,
NEW DELHI
Presided over by Devanshu Sajlan, DJS
Cr. Case No. : 66273/2016
Unique Case ID : DLWT020003942010
No.
FIR No. : 342/2009
Police Station : Paschim Vihar (East)
Section(s) : 279/304A IPC
In the matter of -
STATE
VS.
MAHESH KUMAR
.... Accused
1. Name of Complainant : ASI Jarnail Singh
2. Name of Accused : Mahesh Kumar
Offence complained of or
3. : 279/304A IPC
proved
4. Plea of Accused : Not guilty
5. Date of registration of FIR : 12.08.2009
Date of filing of
6. : 22.02.2010
chargesheet
7. Date of Reserving Order : 28.08.2023
8. Date of Pronouncement : 25.09.2023
9. Final Order : Acquitted
Argued by: Sh. Dhirendra Yadav, Ld. APP for the State.
Sh. Lalit Sanan, Ld. Counsel for the Accused.
Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 1 of 17 Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:46:52 +0530
BRIEF STATEMENT OF REASONS FOR THE DECISION:
A. FACTUAL MATRIX:
1. The case of the prosecution is that on 12.08.2009 at about 02:40 PM, opposite Nangloi Depot, Main Rohtak Road, Delhi, within the jurisdiction of PS Paschim Vihar, accused is alleged to have been driving one TSR Tempo bearing registration number DL1RF5585 in a rash or negligent manner so as to endanger human life and while driving the TSR in such a manner, he is alleged to have hit a person namely Sh. Ram Kishan causing his death.
Thereby, the accused is alleged to have committed offence punishable u/s 279/304A IPC.
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, chargesheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, a copy of chargesheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, notice under Sections 279/304A IPC was served upon the accused to which he pleaded not guilty and claimed trial.
Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:47:04 +0530 Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 2 of 17 PROSECUTION EVIDENCE -
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:
ORAL EVIDENCE PW1 : Sh. Mahender Singh PW2 : Sh. Jai Bhagwan PW3 : W/ASI Nirmala PW4 : Ct. Surender Kumar PW5 : W/Ct. Urmila PW6 : Dr. Abhishek PW7 : Smt. Sunita Devi PW8 : Retd. ASI/Tech Davinder Kumar PW9 : SI Jarnail Singh PW10 : Dr. Binay Kumar DOCUMENTARY EVIDENCE Ex. PW-1/A : Seizure memo of TSR Ex. PW-1/B : Permit and Fitness of TSR Ex. PW-1/C : Arrest memo Ex. PW-1/D : Personal search memo Ex. PW-2/A : Identification memo of deceased Ex. PW-2/B : Dead body handing over memo Ex. PW-3/A : FIR (OSR) Ex. PW-3/B : Endorsement on Rukka Ex. PW-4/A : Seizure memo of DL of accused Ex. PW-5/A : DD No.29 dated 12.08.2009 Ex. PW-6/A : Postmortem report Ex. P1 Colly : Photographs of case property Ex. PW-7A : Superdginama Ex. PW-8/A : Mechanical inspection report Ex. PW-9/A : Rukka Ex. PW-9/B : Site plan Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 3 of 17 Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:47:15 +0530 Ex. PW-9/C : Seizure memo of insurance certificate Ex. PW-10/A : MLC No.10589 STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
5. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 281 read with Section 313 CrPC. He stated that he has been falsely implicated in the present case. Pursuant thereto, he stated that he does not wish to lead any defence evidence.
ARGUMENTS -
6. I have heard the learned APP for the State and learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
7. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the eyewitness to the incident has categorically deposed about the rash and negligent manner in which the accused was driving the offending vehicle. The factum of accident is proved. As such, it is prayed that the accused be punished for the said offences.
8. Per contra, learned counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Learned counsel has argued that PW1/ Sh. Mahender Singh is not an eyewitness since he is not even mentioned in the FIR. He has further submitted that the said eyewitness, who is a chance Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:47:22 +0530 Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 4 of 17 witness, has been planted by the IO to falsely implicate the accused. He has further submitted that there are material contradictions in the version of the PW1/ Sh. Mahender Singh and PW/IO ASI Jarnail Singh. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offences.
INGREDIENTS OF THE OFFENCE -
9. The accused has been charged for the offences of rash driving on public way (under section 279 IPC) and causing death by a rash or negligent act (under section 304A IPC) in the present case. While under Section 279 IPC, the factum of rash or negligent driving likely to endanger human life or cause hurt etc. is in itself the offence, under Section 304A IPC, death of the victim should be caused in pursuance of such rash or negligent act of the accused. In order to bring home the guilt of the accused, the prosecution has to prove that the accused was driving the offending in a rash or negligent manner, and due to such driving of the accused, the victim suffered injuries which led to his death. The act should not amount to culpable homicide.
10. Thus, the gravamen of the offences under section 279/304A IPC is the act of the accused, done with "rashness" or "negligence". The IPC does not define either of these terms. However, the ambit of these terms has now been settled by judicial pronouncements of superior Courts. In Empress of India v. Idu Beg ILR (1881) 3 All 776 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:47:29 +0530 Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 5 of 17 consequences of such act. The Hon'ble Apex Court in the case of Rathnashalvan v. State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-:
"7. .... Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted."
11. Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal v. CBI (2014) 6 SCC
173. The standard of negligence was discussed in the said case, by observing, inter alia, as under-:
"58. In the case of "negligence" the courts have favoured a meaning which implies a 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 which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 6 of 17 DEVANSHU Digitally signed by DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:47:37 +0530 prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection."
12. Thus, rashness implies doing an act despite the consciousness that it might result in injuries. Negligence, on the other hand, means lack of reasonable care that a person placed in the fact situation ought to take, in order to avoid injuries.
13. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused must be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
TESTIMONY OF STAR WITNESS / PW1 -
14. The star witness of the prosecution and the only eyewitness cited is PW-1 Sh. Mahender Singh. He has narrated about the incident as seen by him. His narration in his examination in chief is to the effect that on the date of incident, he had come to Nangloi Mandi to sell his vegetables. He further deposed that at around 11:30-11:45 am, he was crossing the road (going from Punjabi Bagh to Bahadurgarh) after selling his vegetables, when he saw one Auto coming at a very high speed and negligently and hit one pedestrian, who was crossing the road behind him. He further deposed that the person hit by Auto fell and got injured and the Auto driver tried to run away from the spot, but he was apprehended at Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 7 of 17 DEVANSHU Digitally signed by DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:47:46 +0530 the red-light signal. PW Sh. Mahender further deposed that after the accident, public persons gathered at the spot and the injured was taken to hospital by the police which had come at the spot. He has further deposed that the Auto driver and the Auto was handed over to the police. He further deposed that the police obtained his signature on some documents at the Police Station regarding the accident. Thereafter, the said witness identified the accused in court and provided the last four digits of the offending vehicle (5585).
15. Regarding the accident, the onus is on the prosecution to prove three facts. The first is that the accident took place by the offending vehicle. The second is that the offending vehicle was being driven by the accused. The third is that offending vehicle was being driven by the accused in a rash or negligent manner. From the material on record, the fact that the accident happened by the offending vehicle is not in dispute since the accused himself gave a suggestion to PW1/Sh. Mahender to the extent that "it is wrong to suggest that the accused had applied breaks and the deceased had himself fallen down and his head struck against one stone due to which he received injuries". Therefore, the accused is not disputing that the accident took place by the offending vehicle and the same was being driven by the accused.
16. However, I am of the opinion that the prosecution has failed to prove the factum of the offending vehicle being driven in rash and negligent manner for the reasons enumerated hereinafter.
17. Firstly, it is pertinent to note that the eyewitness PW1 Sh. Mahender Singh is a chance witness. He has deposed in his examination-in-chief that on the date of incident, he had come to Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:47:54 +0530 Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 8 of 17 Nangloi Mandi to sell his vegetables. The said witness did not reside or work near the spot of accident and is otherwise a permanent resident of Sonipat. A chance witness is the one who happens to be at the place of occurrence of an offence by chance, and therefore, not as a matter of course. Many a time, the witness does not live near the place of the crime or there is no reason for him to be present at that particular time and place and in fact if he is an outsider, such a person is called a "chance witness" in legal parlance. The said term was defined in detail by the Hon'ble Supreme Court in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200:
29. A chance witness is the one who happens to be at the place of occurrence of an offence by chance, and therefore, not as a matter of course. In other words, he is not expected to be in the said place. A person walking on a street witnessing the commission of an offence can be a chance witness. Merely because a witness happens to see an occurrence by chance, his testimony cannot be eschewed though a little more scrutiny may be required at times.
18. It is a settled position of law that the evidence of a chance witness requires a close scrutiny before it can be relied upon. In this regard, it was held by the Hon'ble Supreme Court in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200 that:
30. The principle was reiterated by this Court in Jarnail Singh v.
State of Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 :
(2010) 1 SCC (Cri) 107] : (SCC p. 725, paras 21-23) "21. In Sachchey Lal Tiwari v. State of U.P. [Sachchey Lal Tiwari v.
State of U.P., (2004) 11 SCC 410 : 2004 SCC (Cri) Supp 105] this Court while considering the evidentiary value of the chance witness in a case of murder which had taken place in a street and a passer-by had deposed that he had witnessed the incident, observed as under:
If the offence is committed in a street only a passer-by will be the witness. His evidence cannot be brushed aside lightly or viewed with Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:48:02 +0530 Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 9 of 17 suspicion on the ground that he was a mere chance witness. However, there must be an explanation for his presence there. The Court further explained that the expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence.
22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh [Satbir v. Surat Singh, (1997) 4 SCC 192 : 1997 SCC (Cri) 538] , Harjinder Singh v. State of Punjab [Harjinder Singh v. State of Punjab, (2004) 11 SCC 253 : 2004 SCC (Cri) Supp 28] , Acharaparambath Pradeepan v. State of Kerala [Acharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643 : (2008) 1 SCC (Cri) 241] and Sarvesh Narain Shukla v. Daroga Singh [Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360 : (2009) 1 SCC (Cri) 188] ). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan [Shankarlal v. State of Rajasthan, (2004) 10 SCC 632 : 2005 SCC (Cri) 579] ).
19. It is pertinent to note that the name of PW1 is nowhere mentioned in the FIR. In fact, the FIR specifically records that no eyewitness could be found at the spot. The same naturally raises a question mark upon the presence of the PW1 at the scene of crime. Therefore, the testimony of the chance witness/PW1 requires a close scrutiny before it can be accepted.
20. On a close scrutiny of the testimony of chance witness PW1 Mahender, various discrepancies/ contradictions have come on record which cannot be brushed aside. First of all, as per settled law, the chance witness is required to explain the reason for his presence at the scene of crime without any ambiguity. In his examination-in- chief, PW1 Mahender deposed that he had come to Delhi to sell vegetables on the date of incident. However, in his statement under Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:48:08 +0530 Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 10 of 17 section 161 CrPC given to the IO, he stated that he had come to Delhi for some personal work. The witness was duly confronted with this discrepancy during his cross-examination, but he had no satisfactory answer to the same. Further, in his examination-in-chief, he deposed that he was crossing the road at around 11:30-11:45 am whereas in his statement under section 161 CrPC given to the IO, he stated that he was crossing the road at around 2:35 pm.
21. Apart from discrepancies in his statement under section 161 CrPC and examination-in-chief, the testimony of PW1 is completely contradictory to the version of IO/ASI Jarnail Singh. PW1 deposed that the injured/victim was taken to the hospital by the police which had come to the spot and the auto driver as well as the auto was handed over to the police. However, IO/ASI Jarnail Singh deposed that the accused was handed over to him by PW1 at PP Mianwali Nagar (and not at the spot). In fact, IO/ASI Jarnail Singh has specifically deposed that when he reached the spot, he came to know that the injured had been removed to SGM Hospital (and thereafter to Safdarjung Hospital, Trauma Centre) and he found no eyewitnesses either at the spot or at the Trauma Centre. As per IO/ASI Jarnail Singh, he met PW1 Mahender for the first time at PP Mianwali Nagar after returning from the spot and the Trauma Centre.
22. Both the aforesaid testimonies are contradictory with each other. PW1 has nowhere deposed that he took the accused to PP Mianwali Nagar and handed him over to the IO. In fact, he has deposed that the police came at the spot and the accused was handed over to the police. The time of arrest on the arrest memo is 7:35 pm Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:48:16 +0530 Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 11 of 17 whereas as per PW1 Mahender, the accused was handed over to the police at the spot (which had come at the spot within 5-7 minutes from the time of accident as per the cross-examination of PW1). Therefore, if the accused was handed over to the police within 5-7 minutes of the time of incident, his time of arrest could not have been 7:30 pm. Lastly, it is pertinent to note that the witness PW1 deposed in his examination-in-chief that he was made to sign on some papers at the police station whereas as per IO/ASI Jarnail Singh, all the proceedings happened at the spot (regarding preparation of arrest memo, seizure memo etc.)
23. Accordingly, there are various contradictions between the testimony of PW1 and the IO/ASI Jarnail Singh. Most importantly, PW1 has nowhere deposed that he had taken the accused to PP Mianwali Nagar, and that the accused was handed over to the police at PP Mianwali Nagar (instead of at the spot). The said testimony is clearly contradictory to the version of the IO. Therefore, there is a cloud of doubt over the presence of PW1 Mahender at the scene of accident since his version is contradictory (with his statement under section 161 CrPC) and with the version of the IO/ASI Jarnail Singh. Considering the fact that the PW1 is a chance witness and there is a doubt regarding his presence at the spot, benefit of doubt must accrue to the accused.
24. In any case, even if the testimony of PW1/Mahender is considered, the same is not sufficient to convict the accused. The witness has deposed that the offending vehicle was being driven in a negligent manner and in a "very high speed". However, the witness has not deposed as to what is meant by "high speed". There is no Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:48:23 +0530 Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 12 of 17 approximation of the speed of the offending vehicle. Even otherwise, mere fact that the vehicle was being driven at high speed does not imply rashness or negligence. It has been held by the Hon'ble Apex Court in Ravi Kapur v. State of Rajasthan (2012) 9 SCC 284 that the speed cannot be a determinative factor for coming to a conclusion that the person was driving rashly or negligently. Further, it was observed in State of Karnataka vs. Satish (1998) 8 SCC 493, as under -
"4. Merely because the truck was being driven at a "high speed"
does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur"."
25. Further, the Hon'ble High Court of Delhi in Abdul Subhan v. State (N.C.T. of Delhi) 133 (2006) DLT 562 held that mere allegation of high speed does not tantamount to rashness or negligence:
The aforesaid observations of the Supreme Court make it more than clear that a mere allegation of high-speed would not tantamount to rashness or negligence. In the present case also, I find that apart from the allegation that the truck was being driven at a very high-speed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent. In any event there is no description or approximation of what was the speed at which the truck was being driven. The expression "high-speed" could range from 30 km per hour to over Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:48:30 +0530 Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 13 of 17 100 km per hour. It is not even known as to what the speed limit on Mathura Road was and whether the petitioner was exceeding that speed limit. Therefore, in the absence of material facts it cannot be said, merely because there is an allegation that the petitioner was driving the truck at a high-speed, that the petitioner is guilty of a rash or negligent act. Clearly the petitioner cannot be convicted on the sole testimony of PW 3 which itself suffers from various ambiguities.
26. Therefore, the testimony that the offending vehicle was being driven at a high speed in a negligent manner is not sufficient to convict the accused. There is no elaboration on the approximation of the speed at which the offending vehicle was being driven or the surrounding circumstances. No tyre skid marks have been collected or produced. IO/ASI Jarnail Singh has specifically admitted in his cross-examination that he had not noted any skid marks at the spot. IO has further deposed that he does not remember whether he got the spot photographed or not. This is a material deficiency in the investigation which cannot be ignored. It is pertinent to note that specific directions have been passed by the Hon'ble High Court of Delhi that in accident cases, the spot should be photographed for effective adjudication. In this regard, reliance can be placed upon the following extract from Abdul Subhan v. State (NCT of Delhi), 2006 SCC OnLine Del 1132:
7. At the outset I would like to observe that I am appalled by the investigation, or shall I say the lack of it, that was carried out in this particular case. I may also note that I am of the view that the testimony of PW 3 head constable Munim Dutt, even if taken to be entirely true only leads to the conclusion that the vehicle driven by the present petitioner was being driven at a high-
speed. This in itself does not mean that the petitioner was driving the vehicle rashly or negligently. Furthermore, the testimony of PW 3 leads to ambiguities and doubts and, I am afraid, my conscience does not permit me to convict a person under section 279/304A IPC on the nature and degree of evidence that is on record in this case.
Digitally signed by DEVANSHU DEVANSHU SAJLAN
SAJLAN Date: 2023.09.25 16:48:37
+0530
Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 14 of 17
There are so many questions which remain unanswered. What is meant by high-speed? Were the traffic lights working or not? Why was the investigating officer not examined? Why were photographs not taken? Why is there no evidence with regard to tyre skid marks? Why was the site plan not exhibited? There are questions which remain unanswered pertaining to the motorcyclist who unfortunately lost his life in this incident. Was the motorcyclist on Mathura Road? What was his direction of movement? Was he coming from Sher Shah Road and turning towards Mathura road? Or, was he on Mathura Road turning towards Sher Shah road? What was the speed of the motorcyclist? Did the motorcyclist suddenly curve into the path of the petitioner's truck? A host of other questions remain unanswered purely because the degree of investigation carried out and the quality of investigation carried out is quite unsatisfactory. It is well known in criminal cases that it is for the prosecution to establish its case beyond reasonable doubt. Unfortunately, in the present case I find that the prosecution has failed to achieve this standard. On the other hand there are grave doubts that the petitioner is at all guilty of the offences for which he has been convicted and sentenced.
13.3. As a rule, photographs ought to be taken not only of the vehicles involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerned by courts.
27. Further, in accident cases, the site plan assumes significance in understanding the surrounding circumstances, inter- se position of the parties on the road etc. The site plan Ex. PW9/B in this case only depicts point A as the point at which the accident happened. However, it does not mention the distance between the position of the eyewitness/PW1 Mahender and the spot of accident. In fact, the position of the eyewitness/PW1 is not at all mentioned in the site plan. The IO has admitted in the cross-examination that the position of eyewitness PW Mahender is not reflected in the site plan. The position of the eyewitness ought to have been mentioned in the site plan to establish his presence at the spot and to assist the court in ascertaining whether the eyewitness was in a position to Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:48:44 +0530 Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 15 of 17 view the occurrence properly. Further, the position at which the offending vehicle finally came to rest after the collision has not been marked in the site plan. The said omission on behalf of the IO is substantial and is in direction contravention of the directions passed by Hon'ble High Court of Delhi in Abdul Subhan v. State (NCT of Delhi), 2006 SCC OnLine Del 1132:
13.1. In most cases I find that the site plans are not produced. Even the site plan that is produced is of a very unsatisfactory nature.
It is, therefore, imperative that the investigating officer should be provided with maps of the roads drawn to scale so that accurate site plans can be produced in evidence for the appreciation of courts. The exact point of impact as well as tyre skid marks and the point at which the vehicles come to rest after the collision should be demarcated clearly. The observations with regard to the length of the tyre skid marks of the vehicles involved in the impact go a long way in indicating the speeds at which the vehicles were travelling. This would enable the courts to examine the evidence in a much more objective manner and the courts would not be faced with vague and subjective expressions such as "highspeed".
28. Therefore, failure of the IO to take photographs of the spot and to prepare proper site plan is a serious defect in the investigation.
29. Ld. APP has relied upon the mechanical inspection report to argue that fresh damages on the vehicle establish the aspect of rash and negligent driving. While mechanical inspection report shows fresh damages to the offending vehicle (to the extent that front body was lightly dented from left side), the mechanical inspection report cannot be the sole basis to convict the accused since minor dent is bound to occur upon impact of a vehicle with a person.
30. Based on the aforesaid discussion and the material on record, the commission of the offences and its essential ingredients Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 16 of 17 Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:48:51 +0530 cannot be proved. The doubtful testimony of the sole eyewitness has not proved the offences beyond reasonable doubt.
CONCLUSION -
31. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offences under Section 279/304A of the IPC beyond reasonable doubt. The basis of the offences charged in the present case is rash or negligent driving of the accused. The testimony of the star witness is doubtful and does not prove the essential ingredients of the offence. Further, there are material defects in the investigation and hence, the accused is entitled to benefit of doubt.
32. Resultantly, the accused Mahesh Kumar is hereby found not guilty. He is ACQUITTED of the offences under Section 279/304A of the Indian Penal Code, 1860.
Pronounced in open court on 25.09.2023 in presence of the accused. This judgement contains 17 pages, and each page has been signed by the undersigned. Digitally signed by DEVANSHU DEVANSHU SAJLAN SAJLAN Date: 2023.09.25 16:48:59 +0530 (DEVANSHU SAJLAN) Metropolitan Magistrate 07 West District, Tis Hazari Courts, New Delhi/25.09.2023 Cr. Case No.66273/2016 State vs. Mahesh Kumar Page 17 of 17