Delhi District Court
Vishal vs State Of Nct on 22 February, 2025
Vishal Kumar Vs. State (Govt. of NCT of Delhi)
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 04, (WEST DISTRICT)
TIS HAZARI COURTS, DELHI
CA No.:- 57/2023
CNR NO.:- DLWT01-001927-2023
IN THE MATTER OF :-
Vishal Kumar
S/o Sh. Babu Ram Sonkar
R/o A-250, Chunna Bhatti
Kirti Nagar, New Delhi-110015 .... Appellant
VERSUS
State (Govt. of NCT of Delhi)
Delhi .... Respondent
Date of institution of the appeal : 01/03/2023
Date on which judgment was reserved : 07/02/2025
Date of judgment : 22/02/2025
JUDGMENT
1. By way of present judgment, this Court shall conscientiously adjudicate upon criminal appeal under section Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:53:58 -0200
CA No. 57/2023 Page No.1/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) 374(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") filed by the appellant against the judgment dated 27/10/2022 (hereinafter referred to as 'impugned judgment') and order on sentence dated 16/01/2023 (hereinafter referred to as 'impugned order') passed by Sh. Milan Goel, Ld. MM-03, West District, Tis Hazari Courts, Delhi, in case titled as "State Vs. Vishal Kumar" FIR No. 96/2009, PS Maya Puri, u/s. 279/304-A IPC.
In the present appeal, the appellant has prayed to call the record from the Ld. Trial Court and to accept the present appeal and to set-aside the impugned judgment dated 27/10/2022 and order on sentence dated 16/01/2023 passed by the Ld. Trial Court.
2. Appellant has preferred the present appeal against the judgment dated 27/10/2022 and order on sentence dated 16/01/2023 passed by the Ld. Trial Court. Vide judgment dated 27/10/2022, the appellant/accused was convicted by the Ld. Trial Court for the offence u/s. 279/304-A IPC. Vide order on sentence Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:54:08 -0200
CA No. 57/2023 Page No.2/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) dated 16/01/2023, the appellant/accused was sentenced to undergo imprisonment for the period of one year and he was also directed to pay compensation of Rs. 1 Lakh to the LRs of the deceased.
3. BRIEF FACTS AS MENTIONED IN THE APPEAL Brief facts necessary for just adjudication of the present appeal as stated in the present appeal are that the appellant has filed the present appeal against the judgment dated 27/10/2022 and order on sentence dated 16/01/2023 passed by the Ld. Trial Court. The appellant has not filed any other appeal/revision against the impugned judgment and order on sentence before this Court or any other Court.
The appellant has challenged the impugned judgment and order on sentence on the grounds, as mentioned in the present appeal.
Grounds of appeal- Ld. Trial Court could not match the ratio of factual position with that of the legal ratio of various judgments pronounced by the Hon'ble Supreme Court, hence, the impugned Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:54:16 -0200 CA No. 57/2023 Page No.3/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) judgment is liable to be set-aside. Impugned judgment cannot withstand with the touchstone of law viz-a-viz the material on record, as there is no eye-witness of the accident and the son of the injured/deceased was/is an interested witness. Even the prosecution could not show the note/writing of the vehicle number allegedly given by PW-1. Impugned judgment is absolutely foreign to the material available on record and does not in any manner befit with the kind and quality of findings and the conclusion arrived at by the Ld. Trial Court. The impugned judgment lacks due application of mind, which is liable to be scrutinized by this Court. Impugned judgment suffers from the vice of inordinate haste, which prompted Ld. Trial Court to jump to the conclusion even by overlooking the relevancy or non- relevancy of the testimonies of prosecution witnesses viz-a-viz the offences, for which, the appellant was charged. Impugned judgment is not only palpably wrong but is coupled with material illegality and irregularity as it appears that Ld. Trial Court could not appreciate the ingredients, which were required to be proved particularly under Section 279/304-A IPC. There is absolutely no Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:54:38 -0200
CA No. 57/2023 Page No.4/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) specific whisper nor entire impugned judgment shows that Ld. Trial Court has applied its mind in the material requisites constituting offence under Section 279/304-A IPC. Hence, the impugned judgment and order cannot sustain under the law and the same are liable to be set-aside. Appellant could not cross- examine the IO/PW-12 as major truths would have come on record. The prosecution story is based upon two things i.e. involvement of vehicle and injury caused by vehicle. It was to be proved by the prosecution by showing the writing / note on which the number of vehicle was written by PW-1. There are other lacunae in the prosecution story for which, cross- examination of the IO was required, which could not be done due to the conduct of the previous counsel. In the present case, the prosecution has miserably failed to establish the chain of circumstances in which, the accident could have occurred, leave alone been able to prove the guilt of the accused beyond reasonable doubt. Ld. Trial Court ought to have held that no case much less under Section 279/304-A IPC was made out. From the entire testimony of the complainant/PW-1, it could not be Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:54:45 -0200
CA No. 57/2023 Page No.5/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) ascertained as to how, the accused/appellant allegedly committed any offence under Section 279/304-A IPC. In the FIR, PW-1 has alleged that the appellant hit the scooter from behind but in his testimony, he made contradictory statement and alleged that the appellant hit his scooter from right side. From the perusal of entire material available on record, it is crystal clear that the complainant has made improvisation in his statement and the appellant has been falsely implicated in the present case without any iota of truth. Even the own witnesses of the complainant have not supported his case and the conclusion arrived at by Ld. Trial Court is solely based upon their contradictory testimonies. PW-4 Gaurav Sharma has resiled from his earlier statement because there are major contradictions in his statement and deposition. In the statement given before the police, PW-4 has alleged that he saw his father and younger brother coming from Rajouri Garden side on a scooter on 21/09/2009 and the appellant hit against scooter of his brother from right side while overtaking the same but in his evidence, PW-4 has alleged that he was not present at the spot at the time of accident and abovesaid facts Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:54:50 -0200
CA No. 57/2023 Page No.6/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) were told to him by his brother Saurabh after accident. Therefore, the conviction based upon a material, which was not even available, is coupled with an element of illegality, which is liable to be set right by this Court. The judgment and finding of Ld. Trial Court are itself contradictory and it appears that Ld. Trial Court got confused over the issues viz-a-viz the factual and legal matrix. Ld. Trial Court has failed to appreciate that as per statement of PW-1, he and his father both were wearing helmets and he further alleged that due to fatal accident, the wearing helmet of his father got broken and police did not take said helmet in its possession. No prudent person would believe the story of PW-1. Had PW-1 and his father were wearing the helmets and if his helmet was broken, there was no occasion for the police for not taking the same in its possession but since the PW-1 was himself negligent and they were not wearing any helmet, therefore, no helmet was taken into custody by the police. Impugned judgment cannot sustain under law as it is devoid of principles of natural justice. The complainant/PW-1 has made contradictory allegations in his cross-examination Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:54:56 -0200 CA No. 57/2023 Page No.7/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) because on the one hand, he has alleged that his father was not suffering from any disease and on the other hand, he admitted that his father was a diabetic patient. PW-1 has further alleged that he had handed over piece of paper, which was containing registration number of offending vehicle noted down by him to ASI Raj Kapoor, whereas no such piece of paper has been placed on record. PW-1 has alleged in his statement that the Doctors of DDU Hospital discharged his father after giving first aid, then he went to Chanan Devi Hospital alongwith his injured father and his friend, where his father was admitted in critical condition. PW-1 did not mention the name of his alleged friend nor there is any evidence of his alleged friend. From the evidence and cross- examination of PWs, it is clear that nothing incriminating came out against the appellant but inspite of that, Ld. Trial Court has convicted the appellant. As per case of the prosecution, Sh. Naresh Sharma was taken to DDU Hospital and he was discharged on the same day. Had Sh. Naresh Sharma sustained any serious injuries, he might not have discharged by DDU Hospital. Moreover, Sh. Naresh Sharma died on 28/09/2009 due Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:55:01 -0200
CA No. 57/2023 Page No.8/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) to heart attack i.e. after 8 days of alleged incident, therefore, it cannot be said that he died due to alleged accident. Medical records are not proved by the persons, who prepared the same. There are major contradictions in the testimonies of PWs. Since the Ld. Trial Court has relied upon testimonies of PWs in its letter and spirit, therefore, the impugned judgment based thereon and resultant conviction cannot sustain under law and the same is liable to be set-aside. Miscarriage of justice has also been caused to the appellant, since admittedly, it was not mentioned by any PWs regarding the speed of offending vehicle. Even from the circumstances, as relied upon by the prosecution, there was nothing material on record to suggest that the accused has committed the offence. Ld. Trial Court has erred in holding that PW-1 was not shaken on the main points regarding causing of fatal accident by the accused while driving the vehicle in a rash and negligent manner, which resulted into death of the injured subsequently. Appellant has been falsely implicated in this case because at the time of alleged accident, he was in Gurgaon, Haryana. Ld. Trial Court has erred in holding that the appellant Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:55:07 -0200
CA No. 57/2023 Page No.9/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) has not been successful to prove to the satisfaction of the Court that he is really innocent in this matter or that he did not cause any accident pertaining to this matter and for that reason, he could not substantiate his plea of alibi. Ld. Trial Court has further erred in holding that the prosecution side has been successful in proving the essential ingredients of the offence u/s. 279/304-A IPC against the accused beyond reasonable doubt. Ld. Trial Court ought not to have adopted pick and chose policy and the conviction is absolutely foreign to law. There are material contradictions in the examination-in-chief and cross-examination of the prosecution witnesses and still the Ld. Trial Court has passed the impugned judgment making such testimonies as premises and same is liable to be re-appreciated and scrutinized by this Court. The punishment/sentence and compensation awarded to the appellant, having regard to his age and other antecedents, are too harsh/exorbitant and not reciprocating. The appellant is the sole bread earner of his family having his wife and four children and he lives in rented accommodation. Entire impugned judgment is absolutely based on hypothetical grounds Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:55:12 -0200
CA No. 57/2023 Page No.10/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) and only a cannon of imagination has been employed by the Ld. Trial Court without looking into the ratio of governing principles of relevant provisions of law. Ld. Trial Court has given more weightage to the scattered approach and school of thoughts instead of applying its mind on the material on record, principles of law involved and the ratio-decidendi of various citations and as such the passing of impugned judgment has caused untold and miserable miseries, mental agony, physical torture, freedom/liberty, etc. which in any case or nevertheless requires to be scrutinized by this Court.
4. Before proceeding further, it is relevant to mention here the proceedings before the Ld. Trial Court.
(i) In the present case, on the complaint of the complainant Sh. Saurav Sharma, FIR No. 96/2009, Police Station Mayapuri, u/s. 279/337 IPC was got registered by the Police of Police Station Mayapuri. After registration of the FIR, the matter was investigated by the police and on completion of the investigation, charge-sheet for the offence u/s. 279/304-A IPC Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:55:18 -0200 CA No. 57/2023 Page No.11/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) was submitted in the Ld. Trial Court on 26/05/2010 for trial of the accused.
(ii) Briefly stated the case of the prosecution as per charge-sheet is that on 21/09/2009 at about 6:45 AM at Maya Puri main road near Metal Forging, Maya Puri, New Delhi within the jurisdiction of PS Maya Puri, accused Vishal Kumar was driving the offending vehicle Tavera bearing registration no.
DL-1VB-5283 in a rash and negligent manner as to endanger human life and personal safety of others and the accused had hit the aforesaid offending Tavera vehicle against a scooter bearing registration no. DL-7SV-5985, which was being driven by the complainant Saurav Sharma and the accused had caused the death of pillion rider Naresh Sharma of the aforesaid scooter due to rash and negligent act not amounting to culpable homicide.
(iii) Cognizance of the offence was taken by the Ld. Trial Court vide order dated 26/05/2010. Copy of the charge-sheet was supplied to the accused Vishal Kumar in compliance of section 207 Cr.P.C. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:55:23 -0200 CA No. 57/2023 Page No.12/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi)
(iv) Finding a prima-facie case against the accused Vishal Kumar, notice/charge for the offence u/s. 279/304-A IPC was served/framed against the accused Vishal Kumar, to which he pleaded not guilty and claimed trial.
(v) Prosecution was then called upon to substantiate its case by examining its witnesses. The prosecution in support of its case had examined fourteen witnesses i.e. complainant/PW-1 Sourav Sharma, PW-2 HC Jai Singh, PW-3 Retired Col. B.K. Sharma, PW-4 Gaurav Sharma, PW-5 SI Om Prakash, PW-6 Shailender Singh, PW-7 Dev Rishi Sharma, PW-7 HC Rajeev, PW-8 Dr. Vineet Kr. Soni, Senior Medical Officer, DDU Hospital, PW-9 Krishan Pal Singh, Record Clerk, DDU Hospital, PW-10 Dr. Rakesh Prasad Shahi, CMO, Mata Chanan Devi Hospital, PW-11 Ct. Vikas, PW-12 Retd. SI Raj Kapoor and PW-13 Retd. ASI (Tech.) Devender Kumar.
It is pertinent to mention here that in the present case, PWs Dev Rishi Sharma and HC Rajeev, both were examined as PW-7. In view of the same, hereinafter, PW Dev Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:55:30 -0200
CA No. 57/2023 Page No.13/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) Rishi Sharma shall be referred as 'PW-7' and PW HC Rajeev shall be referred as 'PW-7A'.
PW-1 in his testimony has categorically, elaborately and graphically described as to how the offence of rash and negligent driving resulted into death of Naresh Sharma (deceased), was committed by the accused Vishal Kumar at the relevant time, date and place. PW-1 was cross-examined by counsel for the accused.
PW-2 in his testimony had deposed regarding registration of FIR No. 96/2009, PS Maya Puri Ex.PW-2/A. PW-2 was not cross-examined by the accused/counsel, despite opportunity.
PW-3 in his testimony had deposed regarding dead body identification of deceased vide Ex.PW-3/A. PW-3 was not cross-examined by the accused/counsel, despite opportunity.
PW-4 in his testimony had deposed that on 21/09/2009 at about 6:45 AM, his father Naresh Sharma met with an accident at Maya Puri, caused by the driver of Tavera vehicle bearing no. DL-1VS-5283 when his father and brother were Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:55:37 -0200 CA No. 57/2023 Page No.14/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) returning towards home on a scooter bearing registration no. DL-7SV-5985 and he was not present at the spot at that time and the aforesaid facts were told by his younger brother Sourav to him after the accident. PW-4 was permitted to cross-examine by APP for the State, as he was resiling from his previous statement made before the police. PW-4 was cross-examined by APP for the State. PW-4 was not cross-examined by the accused/counsel, despite opportunity.
PW-5 in his testimony had deposed regarding recording of DD entry no. 7A and DD enty no. 14A Ex.PW-5/A and Ex.PW-5/B respectively. PW-5 was not cross-examined by the accused/counsel, despite opportunity.
PW-6 in his testimony had deposed that he is the superdar of vehicle bearing no. DL-1VB-5283 (Tavera car) and he got released the same on superdari and on 21/09/2009, he had received the notice u/s. 133 M.V. Act Ex.PW-6/B and he replied the same vide Ex.PW-6/C. PW-6 was not cross-examined by the accused/counsel, despite opportunity.
PW-7 in his testimony had deposed regarding dead Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:55:42 -0200
CA No. 57/2023 Page No.15/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) body identification of deceased vide Ex.PW-7/A. PW-7 was not cross-examined by the accused/counsel, despite opportunity.
PW-7A in his testimony had deposed that he joined the investigation of the present case alongwith IO. PW-7A was cross-examined by counsel for the accused.
PW-8 is the medical witness, who deposed that MLC No. 19188 of deceased Naresh Sharma Ex.PW-8/A is bearing the handwriting and signature of Dr. Awadhesh Sharma and as per MLC, the aforesaid injured was brought to the hospital with the alleged history of RTA and the injured was advised medication and subsequently, referred to orthopedic and ophthalmology department for further treatment. PW-8 was cross-examined by counsel for the accused.
PW-9 is the Medical Record Clerk, who deposed that the death summary of deceased Naresh Sharma Ex.PW-9/A is in the handwriting of Dr. Sushil Kumar Chaurasia and bearing his signature. PW-9 was cross-examined by counsel for the accused.
PW-10 is the medical witness, who deposed that on Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:55:49 -0200
CA No. 57/2023 Page No.16/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) 21/09/2009, patient Naresh Sharma was admitted in ICU of the hospital as he was having head injury due to road traffic accident and the patient had expired on 28/09/2009 during treatment and death summary Ex.PW-10/A of the said patient was prepared by Dr. Vachaspati Kumar and same is bearing his signature. PW-10 was cross-examined by counsel for the accused.
PW-11 in his testimony had deposed that he joined the investigation of the present case alongwith IO. PW-11 was not cross-examined by the accused/counsel, despite opportunity.
PW-12 is the IO in the present case, who deposed regarding investigation conducted by him and he duly proved on record the documents relating to the investigation conducted by him. PW-12 was not cross-examined by the accused/counsel, despite opportunity.
PW-13 in his testimony had deposed that on 23/09/2009, he had conducted the mechanical inspection of scooter bearing no. DL-7SV-5985 and one Tavera car bearing registration no. DL-1VB-5283 and his detailed reports in this regard are Ex.PW-13/A and Ex.PW-13/B. PW-13 was cross-
Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:55:57 -0200
CA No. 57/2023 Page No.17/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) examined by counsel for the accused.
(vi) The prosecution in support of its case has relied upon the documents i.e. statement/complaint of the complainant Ex.PW-1/A, arrest memo of the accused Ex.PW-1/B, seizure memo of offending vehicle bearing no. DL-1VB-5283 Ex.PW-1/C, seizure memo of driving license of the accused Ex.PW-1/D, seizure memo of RC, photocopy of permit, fitness and insurance of vehicle bearing no. DL-1VB-5283 Ex.PW-1/E, FIR No. 96/2009, PS Maya Puri Ex.PW-2/A, endorsement on rukka Ex.PW-2/B, statement regarding dead body identification Ex.PW-3/A, statement u/s. 161 Cr.P.C. of PW-4 Gaurav Sharma Mark-X, DD entry No. 7A Ex.PW-5/A, DD entry no. 14A Ex.PW-5/B, superdarinama of vehicle bearing no. DL-1VB-5283 Ex.PW-6/A, photographs of vehicle bearing no. DL-1VB-5283 Ex.PW-6/A1 & Ex.PW-6/A2, notice u/s 133 of M.V. Act Ex.PW-6/B, reply to the notice u/s 133 M.V. Act Ex.PW-6/C, statement regarding dead body identification Ex.PW-7/A, seizure memo of scooter bearing No. DL-7SV-5985 Ex.PW-7/A, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:56:03 -0200
CA No. 57/2023 Page No.18/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) personal search memo of the accused Ex.PW-7/B, MLC No. 19188 of deceased Naresh Sharma Ex.PW-8/A, Post-mortem report No. 1121/09 of deceased Naresh Sharma Ex.PW-9/A, death summary of deceased Naresh Sharma Ex.PW-10/A, rukka Ex.PW-12/A, site plan Ex.PW-12/B, mechanical inspection report of scooter bearing no. DL-7SV-5985 Ex.PW-13/A, mechanical inspection report of Tavera Car bearing no. DL-1VB-5283 Ex.PW-13/B and photographs of scooter bearing no. DL-7SV-5985 Ex.P-1 (colly).
It is pertinent to mention here that in the present case, statement regarding dead body identification was exhibited as Ex.PW-7/A and seizure memo of scooter bearing No. DL-7SV-5985 was also exhibited as Ex.PW-7/A. In view of the same, hereinafter, statement regarding dead body identification shall be referred as 'Ex.PW-7/A' and seizure memo of scooter bearing No. DL-7SV-5985 shall be referred as 'Ex.PW-7/A1'.
(vii) Separate statement of the accused Vishal Kumar was recorded u/s. 313 Cr.P.C. wherein he denied the allegations Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:56:08 -0200
CA No. 57/2023 Page No.19/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) against him and rebutted the prosecution evidence against him and claimed that he is innocent and he has been falsely implicated in this case. It was also stated by the accused that he has not committed any offence. It was also stated that he wants to lead evidence in his defence.
(viii) Accused had lead defence evidence and got examined himself as DW-1.
Accused/DW-1 in his testimony had deposed that on the day of incident at about 6:00 AM, he reached at Covergis Company at Gurgaon in his Tavera car bearing registration no. DL-1VB-5283 and he was sitting there and at about 8:30-9:00 AM, he had received the call from the owner of the aforesaid Tavera car namely Shailender Singh and he called at his house at Mansarovar, Rajouri Garden and asked him whether he had caused the accident as the police official had intimated him about the accident by Innova car and Shailender Singh had informed the police that Innova car did not belong to him. Accused/DW-1 had also deposed that thereafter, he alongwith Shailender Singh Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:56:14 -0200
CA No. 57/2023 Page No.20/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) went to PS Maya Puri and police stated to Shailender Singh that bumper of the offending car was damaged due to the accident but on checking, bumper of Tavera car was not found broken/damaged. DW-1 was cross-examined by APP for the State.
(ix) Thereafter, final arguments were heard by the Ld. Trial Court. Vide impugned judgment passed by the Ld. Trial Court, accused was convicted for the offence u/s. 279/304-A IPC and order on sentence was passed by the Ld. Trial Court.
ARGUMENTS ON THE APPEAL
5. This Court heard the arguments on the present appeal advanced by Ld. Counsel for the appellant and Ld. Addl. PP for the State/respondent. Perused the material available on record.
During the course of arguments, it was submitted by Ld. Counsel for the appellant that the impugned judgment and order on sentence are liable to be set-aside on the grounds, as mentioned in the present appeal. On the other hand, it was Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:56:20 -0200
CA No. 57/2023 Page No.21/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) submitted by Ld. Addl. PP for the State/respondent that the Ld. Trial Court has passed the impugned judgment and order on sentence in accordance with law and there is no merits in the present appeal and the same is liable to be dismissed.
Counsel for the appellant in support of his contentions has relied upon the following case laws:-
1. "Jaspriya Bhasin Vs. The State (NCT of Delhi) & Ors.
(Crl. M.C. 6402/2019 & Crl. M.A. 42481/2019 decided by the Hon'ble High Court of Delhi on 05/08/2022)"
2. "Ram Chander Vs. State (Crl. Rev. Petition 686/2017 & Crl. M.B. 1622/2017 decided by the Hon'ble High Court of Delhi on 16/11/2017)"
FINDINGS
6. It is well settled law that in order to bring home conviction the prosecution has to show on record an unbroken chain of events leading to commission of actual offence. Further, it is the duty of the prosecution to prove its case in such a manner so as to bring it outside the pale of any reasonable doubt.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.02.22
15:56:27 -0200
CA No. 57/2023 Page No.22/57
Vishal Kumar Vs. State (Govt. of NCT of Delhi) Before proceeding further, it is relevant to discuss the relevant case laws relating to appreciation of evidence.
Law relating to appreciation of evidence of the witnesses has been elaborated by the Hon'ble High Court of Delhi in case titled as "Satish @ Bombaiya Vs. State", { 44 (1991) DLT 561} and it was held that :-
"........ While appreciating the evidence of a witness approach must be whether the evidence of the witness, read as a whole, appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks, and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of the evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:56:33 -0200 CA No. 57/2023 Page No.23/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defense may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
Law relating to appreciation of ocular evidence has been elaborated by the Hon'ble High Court of Delhi in case titled as " Akbar & Anr. Vs. State", { 2009 Cri. L.J. 4199 } and it was held that :-
"49. The appreciation of ocular evidence is a Herculean task. There is no fixed or strait- jacket formula for appreciation of ocular evidence. The judicially evolved principles regarding the appreciation of the ocular Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:56:39 -0200
CA No. 57/2023 Page No.24/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) evidence in a criminal case can be enumerated as under:-
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:56:45 -0200
CA No. 57/2023 Page No.25/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be
expected to possess a photographic memory Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.02.22
15:56:51 -
0200
CA No. 57/2023 Page No.26/57
Vishal Kumar Vs. State (Govt. of NCT of Delhi) and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:56:57 -0200 CA No. 57/2023 Page No.27/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:57:02 -0200
CA No. 57/2023 Page No.28/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness".
7. Now, this Court shall proceed to discuss the merits of the case.
(i) Testimony of complainant/eye-witness In the present case, notice/charge for the offence u/s. 279/304-A IPC was served/framed against the accused.
PW-1 is the complainant in the present case and stated to be eye-witness of the accident/incident. PW-1 is the son of the deceased Naresh Sharma. PW-1 in his testimony has categorically, elaborately and graphically described as to how the offence of rash and negligent driving of offending vehicle bearing no. DL-1VB-5283, which resulted into death of his father, was committed by the accused at the relevant time, date and place.
PW-1 in his testimony had specifically deposed that Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:57:08 -0200
CA No. 57/2023 Page No.29/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) on 21/09/2009, the accused had driven the offending vehicle DL-1VB-5283 in high speed and in rash and negligent manner and hit his scooter, due to which, his father (deceased) sustained severe injuries and expired. PW-1 in his testimony had also deposed that after the accident, the accused ran away from the spot in his offending vehicle.
PW-1 has duly supported the case of the prosecution. Complainant/PW-1 in his testimony had duly proved on record the complaint Ex.PW-1/A, on the basis of which, the present case FIR was got registered. The contents of complaint Ex.PW-1/A and FIR Ex.PW-2/A have been duly proved on record and corroborated by PW-1 and other prosecution witnesses.
Testimony of PW-1 is corroborated with the testimonies of other prosecution witnesses and documentary evidence as well as other evidence relied upon by the prosecution. There is nothing on the record to disbelieve the testimony/version of PW-1. In the cross-examination of PW-1, no material contradiction/ inconsistency has been surfaced or pointed out except some minor ones which are but natural.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.02.22
15:57:13 -
0200
CA No. 57/2023 Page No.30/57
Vishal Kumar Vs. State (Govt. of NCT of Delhi)
(ii) Identity of deceased PW-3 and PW-7 in their testimonies have deposed regarding identification of dead body of deceased Naresh Sharma and they identified the dead body of deceased Naresh Sharma vide their dead body identification statements Ex.PW-3/A and Ex.PW-7/A respectively. Accused/counsel had not put any question in the cross-examination of aforesaid witnesses to dispute the identity of the deceased. Hence, identity of the deceased Naresh Sharma is duly established by the prosecution.
(iii) Identity of the accused PW-1, PW-6, PW-7A and PW-12 during the course of their testimonies have duly identified the appellant/ accused Vishal Kumar. Arrest memo Ex.PW-1/B of the accused Vishal Kumar is bearing the signatures of PW-1, PW-7A and PW-12 and personal search memo of the accused Vishal Kumar is also bearing the signatures of PW-7A and PW-12. Accused/counsel Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:57:19 -0200
CA No. 57/2023 Page No.31/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) had not put any question in the cross-examination of PW-1, PW-6, PW-7A and PW-12 to dispute the identity of the accused Vishal Kumar. Hence, identity of the appellant/ accused Vishal Kumar is duly established by the prosecution.
(iv) Presence of the accused PW-1 in his testimony had specifically deposed that the accused Vishal Kumar was present at the place of accident/incident at the relevant time and date and the accused had caused the accident. As per accused, he has not caused any accident and he was not present at the spot at the time of accident/incident and at that time, he was present in Gurugram, Haryana. In the present case, the accused neither examined any independent witness nor proved on record any documentary evidence to show that at the relevant time and date of accident/incident, he was present in Gurugram, Haryana. On the other hand, PW-1 has duly supported the case of the prosecution and the case of the prosecution is duly supported and corroborated with the testimony of PW-1. Prosecution has duly Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:57:26 -0200
CA No. 57/2023 Page No.32/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) proved the fact that the accused was present at the spot at the relevant time and date. Hence, presence of the accused at the place of the accident/incident at the relevant time and date is duly established by the prosecution.
(v) Identity of offending vehicle as well as vehicle of the complainant In the present case, photographs of the offending vehicle bearing no. DL-1VB-5283 Ex.PW-6/A1 and Ex.PW-6/A2 and photographs of vehicle of the complainant bearing no.
DL-7SV-5985 Ex.P-1 (colly.) have been duly proved on record by the prosecution. PW-1 in his testimony had specifically mentioned the registration numbers of offending vehicle as well as his vehicle/scooter. Photographs of the offending vehicle bearing no. DL-1VB-5283 Ex.PW-6/A1 and Ex.PW-6/A2 have been duly proved by PW-6 and PW-12. Photographs P of vehicle/scooter bearing no. DL-7SV-5985 Ex.P-1 (colly.) have been duly proved by PW-7A and PW-12. During the course of examination of PW-6, it was submitted by the accused that he is Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:57:31 -0200
CA No. 57/2023 Page No.33/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) not disputing the identity of the offending vehicle bearing registration No. DL-1VB-5283 (Tavera car). Accused/counsel had not put any question in the cross-examination of PW-1, PW-6, PW-7A and PW-12 to dispute the identity of the aforesaid both vehicles. Seizure memos of aforesaid both vehicles i.e. Ex.PW-1/C and Ex.PW-7/A1 were duly proved on record by the prosecution. Hence, identity of the aforesaid both vehicles bearing no. DL-1VB-5283 and DL-7SV-5985, is duly established/proved by the prosecution.
(vi) Medical witnesses PW-8 and PW-10 are the medical witnesses, examined by the prosecution in the present case. PW-9 is the Record Clerk, who appeared and deposed on behalf of Dr. Sushil Kumar Chaurasia.
PW-8 is the medical witness, who duly proved on record the MLC of the deceased Naresh Sharma Ex.PW-8/A. PW-10 is the medical witness, who duly proved on record the death summary of the deceased Naresh Sharma Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:57:37 -0200
CA No. 57/2023 Page No.34/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) Ex.PW-10/A. PW-9 is the Record Clerk from the DDU hospital, who duly proved on record the post-mortem report of the deceased Naresh Sharma Ex.PW-9/A. Aforesaid medical documents of the deceased Naresh Sharma were duly proved on record by the aforesaid medical witnesses. There is nothing on the record to disbelieve the aforesaid medical documents as well as testimonies/ versions of the aforesaid medical witnesses.
(vii) Testimonies of police witnesses In the present case, PW-2, PW-5, PW-7A, PW-11, PW-12 and PW-13 are the police officials. From the testimonies of the aforesaid police witnesses, it is evident that investigation conducted including the documents prepared in the present case during the course of investigation have been substantially proved by the aforesaid police witnesses.
PW-12 is the IO in the present case, who deposed regarding investigation conducted by him and he duly proved on Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:57:45 -0200 CA No. 57/2023 Page No.35/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) record the documents relating to the investigation conducted by him.
(viii) Other factors In the present case, mode & manner of offence, nature of injury sustained by the deceased, intention and knowledge are relevant factors. The aforesaid factors have been duly proved on record by the prosecution.
In the present case, PW-1 in his testimony had specifically deposed that at the relevant time, date and place, accused was driving the offending vehicle bearing no. DL-1VB-5283 in a rash and negligent manner, which resulted into death of his father Naresh Sharma (deceased). PW-1 in his testimony had also specifically deposed regarding the mode and manner in which, the accused had committed the offence.
Testimony of PW-1 is corroborated with the testimonies of other prosecution witnesses and documentary evidence as well as other evidence relied upon by the prosecution.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.02.22
15:57:51 -
0200
CA No. 57/2023 Page No.36/57
Vishal Kumar Vs. State (Govt. of NCT of Delhi)
8. CONTENTIONS
(a) It is the contention of the appellant that in the present case, PW-4 had turned hostile and not supported the case of the prosecution as PW-4 in his testimony had deposed that he was not present at the spot at the time of accident and in view of the same, impugned judgment and order on sentence are liable to be set-aside.
It is well settled law that evidence of a hostile witness cannot be discarded as a whole and relevant parts thereof which are admissible in law can be used by the prosecution or the defence.
Law relating to hostile witness has been elaborated by the Hon'ble Supreme Court of India in case titled as " Rajesh Yadav & Anr Vs. State of UP" {Criminal Appeal No.339- 340/2014 decided on 04/02/2022} and it was held that :-
"The expression "hostile witness" does not find a place in the Indian Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:57:56 -0200 CA No. 57/2023 Page No.37/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:58:02 -0200
CA No. 57/2023 Page No.38/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) powers of the court to make an assessment, being a matter before it and come to the correct conclusion."
It was held by Hon'ble Supreme Court of India in case titled as " Neeraj Dutta Vs. State (Govt. of NCT of Delhi)"
{Criminal Appeal No.1669/2009 decided on 15/12/2022} that :-
"Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross- examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:58:07 -0200 CA No. 57/2023 Page No.39/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) if corroborated by other reliable evidence."
In the present case, PW-4 was not completely hostile. PW-4 in his testimony had deposed that on 21/09/2009, his father Naresh Sharma met with an accident caused by driver of Tavera vehicle registration No. DL-1VS-5283 when his father and brother were returning home on a scooter bearing No. DL-7SV-5985. PW-4 in his testimony had deposed that he was not present at the spot at the time of accident and the said facts were told by his younger brother Saurabh to him after the accident. Factum regarding aforesaid accident/offence has not been denied by the PW-4 in his testimony. In view of the above, the whole testimony of PW-4 as well as case of the prosecution cannot be completely washed off/discarded in view of the fact that PW-1 and other prosecution witnesses have duly supported the case of the prosecution. In view of the same, the contention of the appellant in this regard is not tenable.
(b) It is the contention of the appellant that PW-1 is the son of the deceased and being the son of the deceased, he has Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:58:12 -0200
CA No. 57/2023 Page No.40/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) falsely deposed against the accused to falsely implicate the accused in the present case and in view of the same, impugned judgment and order on sentence are liable to be set-aside.
It is well settled law that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out.
It was held by Hon'ble Supreme Court of India in case titled as " Waman & Ors. Vs. State of Maharastra"
{Criminal Appeal No. 364/2009 decided on 29/06/2011} that :-
"It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinize their evidence meticulously with a little care."
In view of the specific testimonies of PW-1 and other concerned prosecution witnesses regarding commission of Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:58:17 -0200 CA No. 57/2023 Page No.41/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) offence by the accused, the contention of the appellant in this regard is not tenable.
(c) It is the contention of the appellant that PW-1 in his testimony had deposed that he had noted down the number of offending vehicle after the accident and handed over the piece of paper containing the registration number of offending vehicle to IO but the aforesaid writing/note written by the PW-1 has not been produced/proved in the present case and in view of the same, impugned judgment and order on sentence are liable to be set-aside. In the present case, PW-1 is the eye-witness of the accident/incident. PW-1 in his testimony had specifically mentioned the make and registration number of the offending vehicle i.e. Tavera car bearing registration no. DL-1VB-5283.
Merely because the aforesaid writing/noting of PW-1 was not produced/proved on record by the prosecution, testimonies of PW-1 and other concerned prosecution witnesses cannot be completely thrown out/ discarded in view of the fact that PW-1 and other concerned prosecution witnesses have duly supported Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:58:22 -0200
CA No. 57/2023 Page No.42/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) the case of the prosecution. In view of the same, the contention of the appellant in this regard is not tenable.
(d) During the course of arguments, it was submitted by counsel for the appellant that PW-1 in his testimony had deposed that at the time of accident, he and his father (deceased) were wearing the helmets and due to fatal accident, wearing helmet of his father was got broken and the police did not take into possession the said helmets. It is the contention of the appellant that PW-1 and his father were not wearing any helmet, therefore, no helmet was taken into custody by the police and in view of the same, impugned judgment and order on sentence are liable to be set-aside. In the present case, PW-1 is the eye-witness of the accident/incident. PW-1 in his testimony had deposed that they both were wearing helmets. Counsel for the accused had not given any suggestion in the cross-examination of PW-1 regarding not wearing of helmets by PW-1 and his father (deceased) at the time of accident/incident. There is nothing on the record to show that PW-1 and deceased were not wearing helmets at the time of Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:58:27 -0200
CA No. 57/2023 Page No.43/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) accident/ incident. Merely because the helmets of PW-1 and deceased were not seized/produced by the prosecution, testimonies of PW-1 and other concerned prosecution witnesses cannot be completely thrown out/ discarded in view of the fact that PW-1 and other concerned prosecution witnesses have duly supported the case of the prosecution. In view of the same, the contention of the appellant in this regard is not tenable.
(e) It is the contention of the appellant that he has not caused any accident and he was not present at the spot at the time of accident/incident and at that time, he was present in Gurugram, Haryana and in view of the same, impugned judgment and order on sentence are liable to be set-aside. In the present case, the appellant/accused had taken the plea of alibi. The onus to prove the plea of alibi was upon the appellant/accused.
Accused/DW-1 in his testimony had deposed that on the date of incident, he reached at Covergis Company situated at Gurgaon, Haryana and he had the entry roster of the said company of the relevant period and he had handed over the same to the police Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:58:32 -0200
CA No. 57/2023 Page No.44/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) official at PS. In the present case, the accused had not produced the entry roster of the aforesaid company to show that he was present at aforesaid company at the relevant time and date. In the present case, accused/counsel had not put any question/suggestion in the cross-examination of any of the prosecution witnesses regarding handing over the aforesaid entry roster of the company to the police official. In the present case, the accused neither examined any independent witness nor proved on record any documentary evidence to show that at the relevant time and on the date of accident/incident, he was present in Gurugram, Haryana. On the other hand, PW-1 in his testimony had specifically deposed that the accused was present at the spot at the relevant time and date and accused had caused the accident. PW-6, who is the owner of the offending vehicle bearing no. DL-1VB-5283 in his reply to the notice u/s. 133 M.V. Act Ex.PW-6/C stated that Vishal is the driver of his vehicle no. DL-1VB-5283 and the said vehicle was in the possession of Vishal from 20/09/2009 8:30 PM till 22/09/2009. PW-1 and PW-6 have duly supported the case of the prosecution and the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:58:38 -0200
CA No. 57/2023 Page No.45/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) case of the prosecution is duly supported and corroborated with the testimony of PW-1. From the testimonies of PW-1 and PW-6, it is clear that the accused was present at the spot at the time of accident/incident at relevant time and date. Hence, presence of the accused at the place of the accident/incident at the relevant time and date is duly established by the prosecution. In view of the same, the contention of the appellant in this regard is not tenable.
(f) It is the contention of the appellant that in the present case, no independent public witness including the friend of PW-1, who alongwith PW-1 took Naresh Sharma (deceased) to Chanan Devi hospital, were joined in the investigation of the present case by the IO nor examined in the present case and in view of the same, impugned judgment and order on sentence are liable to be set-aside.
It is well settled law that non-examination of any witness per se will not vitiate the case of the prosecution and it depends upon the quality and not the quantity of the witnesses Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:58:43 -0200
CA No. 57/2023 Page No.46/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) and its importance.
It was held by Hon'ble Supreme Court of India in case titled as " Rajesh Yadav & Anr. Vs. State of UP", {Criminal Appeal No.339-340/2014 decided on 04/02/2022} that:-
"A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it...."
It is well settled law that non-joining of public witness in the investigation is not fatal in every case. In the present case, PW-1, PW-3, PW-4, PW-6 and PW-7 were joined in Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:58:48 -0200
CA No. 57/2023 Page No.47/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) the investigation of the present case. PW-1 and other concerned prosecution witnesses have duly supported the case of the prosecution. In view of the same, the contention of the appellant in this regard is not tenable.
(g) It is the contention of the appellant that he had not caused any accident and Naresh Sharma (deceased) had expired due to heart attack on 28/09/2009 i.e. after 8 days of alleged accident/incident and in view of the same, impugned judgment and order on sentence are liable to be set-aside.
PW-8 and PW-10 are the medical witnesses examined by the prosecution in the present case. PW-9 is the Record Clerk, who appeared and deposed on behalf of Dr. Sushil Kumar Chaurasia.
MLC of the deceased Naresh Sharma Ex.PW-8/A, post-mortem report of the deceased Naresh Sharma Ex.PW-9/A and death summary of the deceased Naresh Sharma Ex.PW-10/A have been duly proved on record by the prosecution. There is nothing on the record to disbelieve the aforesaid medical Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:58:53 -0200
CA No. 57/2023 Page No.48/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) documents as well as testimonies/ versions of the aforesaid medical witnesses.
There is nothing in the aforesaid medical documents of deceased Naresh Sharma to show that he had expired due to heart attack. Accused/counsel had not put any question/ suggestion in the cross-examination of PW-8, PW-9 and PW-10 that Naresh Sharma (deceased) had expired due to heart attack.
Hence, the contention of the appellant in this regard is not tenable.
(h) It is the contention of the appellant that in the present case, the prosecution has failed to prove the ingredients of the offence u/s 279/304-A IPC and in view of the same, impugned judgment and order on sentence are liable to be set-aside. PW-1 is the eye-witness of the accident/incident. PW-1 in his testimony had specifically deposed that on 21/09/2009, the accused had driven the offending vehicle DL-1VB-5283 in high speed and in rash and negligent manner and hit his scooter, due to which, his father (deceased) sustained severe injuries and expired. In the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:58:58 -0200
CA No. 57/2023 Page No.49/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) present case, the prosecution has been successful to prove the fact that on 21/09/2009 at about 6:45 AM at Maya Puri main road near Metal Forging, Maya Puri, New Delhi within the jurisdiction of PS Maya Puri, accused Vishal Kumar was driving the offending vehicle Tavera bearing registration no. DL-1VB-5283 in a rash and negligent manner as to endanger human life and personal safety of others and the accused had hit the aforesaid offending Tavera vehicle against a scooter bearing registration no. DL-7SV-5985, which was being driven by the complainant Saurav Sharma and the accused had caused the death of pillion rider Naresh Sharma of the aforesaid scooter due to rash and negligent act not amounting to culpable homicide. In the present case, all the essential ingredients of the offence u/s. 279/304-A IPC have been duly proved on record from the testimonies of prosecution witnesses and documentary as well as other evidence relied upon by the prosecution. The prosecution has been successful to prove its case against the appellant/accused beyond reasonable doubt for the offence under section 279/304-A IPC. In view of the same, the contention of the appellant in this regard is Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:59:04 -0200
CA No. 57/2023 Page No.50/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) not tenable.
(i) It is the contention of the appellant that the Ld. Trial Court had picked and chosen evidence available on record as per its convenience for conviction of the accused/appellant and in view of the same, impugned judgment and order on sentence are liable to be set-aside. Ld. Trial Court has passed the detailed and reasoned judgment and all the points and contentions of both the parties were duly dealt with by the Ld. Trial Court in the impugned judgment. In view of the same, the contention of the appellant in this regard is not tenable.
(j) It is the contention of the appellant that IO had not investigated the present matter properly and in view of the same, impugned judgment and order on sentence are liable to be set-
aside.
There is nothing on the record to show that IO had not investigated the present matter properly and investigation was defective.
Even otherwise, it was held by Hon'ble Supreme Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:59:11 -0200 CA No. 57/2023 Page No.51/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) Court of India in case titled as "Ambika Prasad & Anr. Vs. State (Delhi Administration)" (AIR 2000 SC 718) that :-
.....Dealing with a case of negligence on the part of the investigating officer, this Court in Karnel Singh v. State of MP {(1995) 5 SCC 518} observed that in a case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of erring investigating officer..."
Hence, the contention of the appellant in this regard is not tenable.
(k) It is the contention of the appellant that there are material contradictions and inconsistencies in the testimonies of prosecution witnesses and in view of the same, impugned judgment and order on sentence are liable to be set-aside.
It was held by Hon'ble Supreme Court of India in case titled as "Sunil Kumar Sambhudayal Gupta Vs. State of Maharashtra", { (2010) 13 SCC 657} that:-
"While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:59:17 -0200 CA No. 57/2023 Page No.52/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons."
In the testimonies of prosecution witnesses, no material contradiction and inconsistency has been surfaced except some minor ones which are but natural. Hence, the contention of the appellant in this regard is not tenable.
9. In the present case, PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-11 and PW-12 have not been cross-examined by the accused/counsel. The testimonies of PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-11 and PW-12 have gone un-rebutted, un-challenged and un-controverted.
In the present case, neither cogent defence evidence had been led by the accused nor proved on record any documentary evidence in support of his defence and to rebut and Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:59:30 -0200
CA No. 57/2023 Page No.53/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) contradict the case of the prosecution.
CONCLUSION
10. It is well settled law that the Appellate Court will usually not interfere with the exercise of discretion by the Trial Court and the Appellate Court will interfere only if it is found that the discretion has been exercised arbitrarily, capriciously and perversely. The first Appellate Court is required to examine the case of the appellant with reference to the grounds urged in the appeal.
It was held by Hon'ble Supreme Court of India in case titled as " Rajan Vs. State of MP", {(1999) 6 SCC 29} that:-
"Appellate Court's jurisdiction is co-extensive with that of the trial Court in the matter of assessment, appraisal and appreciation of the evidence and also to determine the disputed issues.".
All the points and contentions were duly dealt with by the Ld. Trial Court in the impugned judgment. Ld. Trial Court has rightly held that the prosecution had successfully proved all the ingredients of the offence u/s 279/304-A IPC against the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:59:35 -0200
CA No. 57/2023 Page No.54/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) appellant/ accused. There is nothing on the record to show that the Ld. Trial Court has exercised its discretion arbitrarily, capriciously and perversely. There is no illegality, impropriety and infirmity in the impugned judgment and order on sentence passed by the Ld. Trial Court.
11. Vide judgment dated 27/10/2022, the appellant/accused was convicted by the Ld. Trial Court for the offence u/s. 279/304-A IPC. Vide order on sentence dated 16/01/2023, the appellant/accused was sentenced to undergo imprisonment for the period of one year and he was also directed to pay compensation of Rs. 1 Lakh to the LRs of the deceased.
Sentence and compensation amount were awarded by the Ld. Trial Court to the appellant/ accused after considering the aggravating and mitigating circumstances.
Section 279 IPC has prescribed the punishment upto six months or with fine or with both. Section 304-A IPC has prescribed the punishment upto two years or with fine or with both. Ld. Trial Court has sentenced the appellant/accused to Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:59:41 -0200
CA No. 57/2023 Page No.55/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) undergo imprisonment for the period of one year for the offence u/s 279 IPC as well as for the offence u/s 304-A IPC. Ld. Trial Court has awarded the sentence to the appellant beyond the prescribed limit for the offence u/s 279 IPC. In view of the same, the sentence awarded by the Ld. Trial Court for the offence u/s 279 IPC is modified to the extent that the appellant/convict shall undergo simple imprisonment for the period of three months for the offence u/s. 279 IPC. However, sentence awarded by the Ld. Trial Court for the offence u/s 304-A IPC is reasonable and justified. Both the sentences shall run concurrently. Compensation amount awarded by the Ld. Trial Court is also reasonable and justified.
12. There is no dispute regarding the propositions laid down in the case laws relied upon by counsel for the appellant, however, the same are not applicable to the facts and circumstances of the present case.
13. Applying priori and posteriori reasonings and the aforesaid case laws, this Court is held that there is no illegality, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 15:59:46 -0200 CA No. 57/2023 Page No.56/57 Vishal Kumar Vs. State (Govt. of NCT of Delhi) impropriety and infirmity in the impugned judgment and order on sentence passed by the Ld. Trial Court. Impugned judgment dated 27/10/2022 and order on sentence dated 16/01/2023 passed by the Ld. Trial Court are upheld. Accordingly, the present appeal of the appellant is dismissed. No order as to costs.
Appellant be taken into custody to serve the sentence awarded by the Ld. Trial Court. Benefit of Section 428 Cr.P.C. be given to the appellant.
Copy of this judgment supplied to the appellant free of cost. Trial Court Record be sent back alongwith the copy of this judgment. Appeal file be consigned to record room after due Digitally compliance. signed by VIJAY VIJAY SHANKAR SHANKAR Date:
2025.02.22 Announced in the open Court 15:59:51 - 0200 on 22/02/2025 (VIJAY SHANKAR) ASJ-04 (West) Tis Hazari Courts, Delhi CA No. 57/2023 Page No.57/57