Delhi District Court
State vs . Vijay Siwach on 7 January, 2023
IN THE COURT OF MS. APOORVA RANA, M.M-10,
DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-002382-2016
Cr. Case 424947/2016
STATE Vs. VIJAY SIWACH
FIR NO.437/2014
P.S Kapashera
07.01.2023
JUDGMENT
Case No. : 424947/2016
Date of commission of offence : 13.09.2014
Date of institution of the case : 14.01.2016
Name of the complainant : Monu Kumar
Name of accused and address : Vijay Siwach
S/o Sh. Rohtas
Siwach R/o Village
Chirya, Tehsil
Charki Dadri, Distt.
Bhiwani, Haryana.
Offence complained of or proved : U/s 279/304A IPC
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date reserved for judgment : 08.12.2022
Date of judgment : 07.01.2023
Digitally
signed by
APOORVA
State Vs. Vijay Siwach APOORVA RANA Page Nos.1 / 21
RANA Date:
2023.01.07
15:52:26
+0530
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused Vijay Siwach (here-in-after referred to as the accused), pursuant to charge sheet filed qua him under Section 279/304A IPC (hereinafter IPC for sake of brevity) subsequent to the investigation carried out at P.S: Kapashera, in FIR no. 437/2014.
2. It is the case of the prosecution that on 13.09.2014 at about 11:30 a.m at Kapashera Bijwasan Road, Pushpanjali Farm, T-point New Delhi, the accused was found driving a vehicle i.e. Alto car bearing number HR-26-BU-8390, in a manner so rash or negligent so as to endanger human life and personal safety of others. Due to this act of the accused, his aforesaid car struck against one bicycle being ridden by a person namely Prashant, resulting in his death not amounting to culpable homicide. Consequently, an FIR was registered in the present case and after investigation, the police filed the present charge sheet against the accused for commission of offence punishable u/s 279/304A IPC.
3. Complete set of charge sheet and other documents were supplied to the accused. Notice for offence punishable u/s 279/304A IPC was served upon the accused to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has Digitally signed by State Vs. Vijay Siwach APOORVA Page Nos.2 / 21 APOORVA RANA RANA Date:
2023.01.07 15:52:37 +0530 examined twelve witnesses in total.
5. PW-1 was Sh. Ajay Siwach, who deposed that he was the registered owner of vehicle no. HR 26 BU 8390. Through him, superdarinama of vehicle was exhibited as Ex. PW1/A and the offending vehicle was exhibited as Ex. P-1.
6. PW-2 was Sh. Keshav Ram, who deposed that he had a son, whom they used to call Prashant Rao. That he was going somewhere with some boys on cycle and met with an accident, resulting in his death. That, the said PW was called by those boys who conveyed that they have met with an accident and the said PW was asked to come to Columbia hospital where the deceased was little bit conscious for some time but was declared dead after some time. Thereafter, the police came and shifted the deceased to Mortuary of DDU Hospital. Through him, dead body identification memo of the deceased was exhibited as Ex. PW2/A.
7. PW-3 was ASI Inderjeet, who deposed that on 13.09.2014, he was posted at PS Kapashera as DO from 04.00 PM to 12.00 Midnight. That at about 04.10 PM, Ct. Ravinder brought one rukka for registration of FIR which was sent by ASI Jagdish Rathi. Through him, FIR was exhibited as Ex. PW3/A, endorsement on original rukka was exhibited as Ex. PW3/B, certificate u/s 65 B of IEA was exhibited as Ex. PW3/C.
8. PW-4 was Sh. Monu Kumar, who deposed that on Digitally signed by State Vs. Vijay Siwach APOORVA Page Nos.3 / 21 APOORVA RANA RANA Date:
2023.01.07 15:52:46 +0530 the day of incident he was going for taking tuitions at Bijwasan alongwith his four friends on three bicycles at about 11.00 am. That on one bicycle he was sitting alongwith his friend. When they reached near Pushpanjali Gate, one white coloured Alto car bearing no. HR 26 BU 8390 came from the side of Bijwasan at high speed, being driven in rash and negligent manner and struck against the cycle of his friend Prashant due to which, he sustained injuries on his head, face, hands and legs and his cycle also fell down and got damaged. Thereafter, the driver of the car stopped his car and took the injured to Columbia Asia Hospital in his car. After this, they called the father of Prashant as well as at 100 number, consequent to which the police reached there.
Thereafter, the said PW deposed with respect to the instigation carried out by the IO in this case. Through him, seizure memo was exhibited as Ex. PW4/A and arrest memo was exhibited as Ex. PW4/B
9. PW-5 was Sh. U. Loknath Rao, who deposed that on 14.09.2014, he went to DDU hospital and identified the dead body of his nephew Prashant Raj Rao. Through him, the identification of dead body was exhibited as Ex. PW5/A.
10. PW-6 was ASI Kartar Singh, who deposed that on 13.09.2014, ASI Jagdish Rathi deposited the case property and the same was mentioned in register no. 19 by MHC(M) HC Narender at serial no. 1363. Through him, photocopy of relevant page was exhibited as Ex. PW6/A. Digitally signed by APOORVA State Vs. Vijay Siwach APOORVA RANA Page Nos.4 / 21 RANA Date:
2023.01.07 15:52:56 +0530
11. PW-7 was Sh. Puran Chand, who deposed that on
14.09.2014 at request of IO ASI Jagdish Rathi he mechanically inspected the vehicle bearing registration no. HR 26 BU 8390 (Maruti Alto Car). Through him, mechanical inspection report was exhibited as Ex. PW7/A.
12. PW-8 was Ms. Nidhi, who deposed that she was the medical record supervisor at Columbia Hospital. That she had been deputed by Chief Medical Services Columbia Hospital to identify the signatures of Dr. Pranab Kumar on MLC no. 2626/14. Through her, relevant MLC was exhibited as Ex. PW8/1.
13. PW-9 was Sh. Krishan Pal Singh, who deposed that he had been deputed by Dr. B N Mishra, head of the Department, Forensic Medicine, DDU Hospital. That he had brought the copy of post mortem report of deceased namely Prashant. The said PW deposed that the post mortem report no. 1245/14 of deceased Prashant was prepared by Dr. Nandita Pokhriyal. Through him, post mortem report was exhibited as Ex. PW9/A.
14. PW-10 was SI Jagdish Rathi, who was the IO in the case and who deposed that on 13.09.2014, he was posted as ASI at PS Kapashera. That, on that day he was on emergency duty alongwith Ct. Ravinder, when received DD no. 13A regarding one injured being shifted to Columbia Hospital, Gurugram. Thereafter, he alongwith Ct. Ravinder reached at the Digitally signed by State Vs. Vijay Siwach APOORVA Page Nos.5 / 21 APOORVA RANA RANA Date:
2023.01.07 15:53:06 +0530 hospital and there one person namely Prashant was found admitted vide MLC 2626/14. They met with complainant Monu Kumar and accused Vijay Siwach at the hospital and the offending vehicle was also found there. Thereafter, they all went to the spot alongwith offending vehicle i.e. at T point, Pushpanjali Bijwasan Road, Kapashera where they found one red cycle in the corner of the road in damaged condition. Thereafter, the said PW deposed with respect to the instigation carried out in this case. Through him, statement of Monu Kumar was exhibited as Ex. PW10/A, rukka was exhibited as Ex. PW10/B, site plan was exhibited as Ex. PW10/C, seizure memo of cycle was exhibited as Ex. PW10/D, seizure memos of DL of accused, insurance and RC of the offending vehicle were exhibited as Ex. PW10/E to Ex. PW10/G, DD no. 13A was exhibited as Ex. PX1, DD no. 20 was exhibited as Ex. PX/2 and form number 25.35(1) (B) was exhibited as Ex. PW10/H.
15. PW 11 was SI Raj Kumar, who deposed that in the year 2016, he was posted at MACT Cell, South-West District. That on 16.10.2016, he received the file for further investigation. Thereafter, he applied for the opinion of doctor on the post mortem report and after receiving the same placed the same on record. That he got verified the documents of offending vehicles. Through him, charge sheet was exhibited as Ex. PW11/A. He had filed the DAR in MACT.
16. PW-12 HC Ravinder Kumar, who deposed on similar lines as PW-10 and also deposed with respect to the Digitally signed by State Vs. Vijay Siwach APOORVA Page Nos.6 / 21 APOORVA RANA RANA Date:
2023.01.07 15:53:15 +0530 investigation carried out by IO in the present matter.
17. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
18. Statement of the accused u/s 281 Cr.P.C read with Section 313 Cr.P.C. was recorded separately in which all the incriminating circumstances appearing in evidence were put to him. The accused inter alia controverted and denied the allegations levelled against him and stated that he has been falsely implicated in the case. Accused further opted to not lead evidence in his defence. Hence, DE was closed.
FINAL ARGUMENTS:
19. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence u/s 279/304A IPC has been proved beyond doubt.
20. Per contra, Ld. Counsel for accused has argued that the accused has been falsely implicated in the present case and that there is no evidence against him showing his liability in the present case and thus, he is entitled to be acquitted in the present Digitally signed by State Vs. Vijay Siwach APOORVA Page Nos.7 / 21 APOORVA RANA RANA Date:
2023.01.07 15:53:25 +0530 case. It has also been argued that there are material contradictions and lacunae/inconsistencies in the version of the prosecution due to which, the prosecution has not been able to prove its case beyond reasonable doubt against the accused.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
21. Arguments adduced by Ld. APP for State and accused have been heard. The evidence and documents on record have been carefully perused.
22. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused Vijay Siwach has been indicted for the offence u/s 279/304A IPC. Section 279 IPC provides punishment for offence of driving a vehicle in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person; and section 304A IPC provides punishment for causing the death of any person by doing any rash or negligent act not amounting to culpable homicide. To drive home the guilt of the accused under section 279/304A IPC in road accident cases resulting in death of a person, following ingredients are required to be proved:- a). That the accused was the person who was driving the offending vehicle at the time when the accident occurred. b). That the accused drove the vehicle in a rash and negligent manner. c). That death of the victim was the direct and proximate cause of the injuries suffered by way of rash and negligent Digitally signed by State Vs. Vijay Siwach APOORVA Page Nos.8 / 21 APOORVA RANA RANA Date:
2023.01.07 15:53:34 +0530 driving of the accused. It must be causa causans - the immediate cause, and not enough that it may be causa sine qua non - proximate cause. (Ref. Suleman Rahiman Mulam v. State of Maharasthra AIR 1968 SC 829; Ambalal D Bhatt v State of Gujarat AIR 1972 SC 1150). In case of an act resulting in death, the act should not amount to culpable homicide.
23. A bare reading of the aforesaid provisions indicates that the main ingredient upon which the said offences hinge upon is that the act of the accused should be done in a rash or negligent manner. These words "Rash" and "Negligent" have not been defined in the IPC. However, the meaning of the said terms have been exhaustively delineated by way of various judicial pronouncements. In Empress v. Idu Beg, (1881) ILR 3 All 776, Straight, J. made the following pertinent observations which have been quoted with approval by various Courts, including the Apex Court:
"Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence 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".
Digitally signed by APOORVA State Vs. Vijay Siwach APOORVA RANA Page Nos.9 / 21 RANA Date:
2023.01.07 15:53:41 +0530 Similarly, in Mohammed Aynuddin @ Miyam vs State Of Andhra Pradesh (2000 SC), the Hon'ble Apex Court has inter alia held the following:
"A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
Again, it has been held by Hon'ble Supreme Court of India in Rathnashalvan vs State Of Karnataka (2007 SC) that:
"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."
24. It is trite law that the burden always lies upon the Digitally signed by APOORVA State Vs. Vijay Siwach APOORVA RANA Page Nos.10 / 21 RANA Date:
2023.01.07 15:53:56 +0530 prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal.
25. Adverting to the facts of the present case, it may be noted at the every outset, that the entire case of prosecution hinges upon the testimony of PW4, that is the complainant himself, who deposed with respect to liability of accused for the offense in question qua deceased Prashant, as noted earlier. The accused has controverted these allegations levelled against him by the complainant and has taken the defence that he was altogether not driving the vehicle in question at the time of accident, let alone the same being driven in a rash and negligent manner. In such a scenario, following issues are required to be determined:
(i) Whether the offending vehicle was being driven by the accused on the relevant day;
(ii) Whether on 13.09.2014, the victim/deceased namely, Prashant had suffered fatal injuries consequent to the accident caused by vehicle bearing registration no. HR26BU8390, which was being driven by the accused at the relevant point of time; and,
(iii) Subject to above points being proved, whether Digitally State Vs. Vijay Siwach signed by Page Nos.11 / 21 APOORVA APOORVA RANA RANA Date:
2023.01.07 15:54:06 +0530 the said accident was caused by rash and negligent act attributable to the accused by virtue of his being the driver of the offending vehicle at the relevant time.
26. To establish the aforesaid fact, the only witness whose testimony is relevant in this regard is that of complainant / PW4 himself, as he is the sole eye witness to the accident in question. However, a careful reading of his testimony, alongwith testimony of the IO and other prosecution witnesses, brings to light certain glaring inconsistencies and lacunae in the prosecution case, as discussed hereinafter.
27. Primarily, the allegations regarding the rash and negligent act on part of the accused appear to have been constituted from the fact that the offending vehicle was being driven by the accused at a high speed. During his cross- examination, when questioned on the aspect of the speed at which the offending vehicle was being driven, PW4 initially declined to state the speed of the offending vehicle at the relevant time, however, later voluntarily added that it may have been around 100 km/hour. Thus, the accused himself was not sure of the speed at which the offending vehicle was being driven at the relevant time and had made his statement in this regard based on surmise alone. It is not the case of the IO that he had observe any skid marks on the accident spot or that he had examined any speed checker/radar installed in/around the spot to ascertain the approximate speed of the offending vehicle at the time of the Digitally signed by State Vs. Vijay Siwach APOORVA Page Nos.12 / 21 APOORVA RANA RANA Date:
2023.01.07 15:54:15 +0530 accident, and had thereby concluded that the offending vehicle was being driven at a speed higher than the prescribed limit. In such circumstances, it would be improper to impute allegations to the effect that the offending vehicle was speeding past the limit on the route on which it was being driven. Other than this, the complainant has failed to delineate any other manner in which the accused was driving the offending vehicle. Now, it is trite law that allegations regarding the offending vehicle being driven at high speed alone, in itself cannot tantamount to act of rashness or negligence. In this regard, it would be apposite to advert to the ruling of the Hon'ble High Court of Delhi in Abdul Subhan Vs. State (NCT of Delhi), 2006 Delhi HC, wherein, the following was observed:-
"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 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."
Digitally signed by APOORVA APOORVA RANA State Vs. Vijay Siwach RANA Date: Page Nos.13 / 21 2023.01.07 15:54:24 +0530 It has also been observed by the Hon'ble High Court of Delhi in case titled as Kishore Chand Joshi vs. State (2018 Delhi HC), that:
"17. A witness can depose as to the manner of driving or speed at which the vehicle was being driven but not render an opinion on "rash and negligent". High speed by itself may not in each case be sufficient to hold that a driver is rash or negligent. Speed alone is not the criterion for deciding the rashness or negligence on the part of the driver."
Therefore, in view of the aforesaid observations made by the Hon'ble High Court, it is amply clear that mere allegation of the offending vehicle being driven at a high speed alone, would not suffice to draw an inference of act of rashness or negligence by the accused. Specific and cogent evidence has to be led by the prosecution in order to drive home this point by establishing the manner in which the offending vehicle was being driven, which is missing in the present case.
28. Not only this, it is also imperative to note that PW4 during his cross-examination had deposed that the accused had to stop the vehicle at the spot as injured had fallen down in front of his vehicle. He also deposed that the offending vehicle had not run over the deceased, thus implying that the offending vehicle would have come to a halt in the least possible time, if not immediately. In such a scenario, if the offending vehicle would have been driven at a high speed at the relevant time, then, sudden halt by the said vehicle would have resulted in skid marks at the spot, which is not the case in the present matter. Rather, if Digitally signed by State Vs. Vijay Siwach APOORVA Page Nos.14 / 21 APOORVA RANA RANA Date:
2023.01.07 15:54:32 +0530 the speed of the offending vehicle would have been extremely high, it would not have stopped immediately without running over the deceased and would have dragged the deceased/cycle further till it came to a halt, which is clearly not the case in the present matter. PW10/IO SI Jagdish Rathi specifically deposed during his cross-examination that there were no tyre marks at the spot of accident and because of the said reason he had not taken the photographs of the spot. Similarly PW 12 HC Ravinder had also deposed that there were no skid marks present at the place of accident. Such statements by the said police officials are prima facie testament to the possibility that the offending vehicle in question was in fact, not being driven at an excessive speed at the relevant time. Moreover, admittedly, there was no traffic signal or speed breaker on either side of the road at the intersection of the entry route of Pushpanjali Farms, thus implying that there was no requirement per se, at the end of the driver of the offending vehicle to have slowed down from normal speed of the vehicle at the intersection, unless so warranted by special circumstances. No other attending circumstances as well are either apparent from record or from testimonies of victims in the case, as would necessarily point to negligence of accused being a logical conclusion rather than it being proved by providing an outright demonstration thereof.
29. Additionally, various discrepancies have also surfaced in version of prosecution as regards certain events as they have been stated to have occurred immediately before/after the alleged incident, as discussed hereinafter.
Digitally
signed by
State Vs. Vijay Siwach APOORVA Page Nos.15 / 21
APOORVA RANA
RANA Date:
2023.01.07
15:54:40
+0530
(i) First and foremost, notably PW4 Monu had deposed
during his examination-in-chief that after the collision had occurred, the accused had taken the injured to Columbia Asia Hospital in his car and the said PW along with his friends had reached there and called the father of deceased thereafter. However, later during his cross-examination, the said PW digressed from this statement and stated that he had accompanied Prashant to Columbia Hospital along with the person who was driving the offending vehicle. In fact, when the said PW was questioned by Ld. Counsel for accused as regards this inconsistency in his statement, he stated that the latter statement given by him during his cross-examination was his correct statement.
(ii) Further inconsistency is apparent from the fact that PW4 Monu deposed that he had conveyed to the police about the fact that four of his friends apart from himself were going on three bicycles to Bijwasan for tuition on the relevant day. The said PW was also confronted with his statement Ex. PW 10/A given by him to the IO in this regard during investigation, upon perusal of which, the said PW admitted that the said fact was not mentioned therein and further voluntarily added that he may not have stated the same at that time as he was not asked about it by the IO. Contrary to this, PW 10/IO SI Jagdish Rathi deposed that PW4 Monu had not told him that any other of his friends were also there at the place of incident, further adding that, the said PW had only told him that he and the deceased were going on Digitally signed by State Vs. Vijay Siwach APOORVA Page Nos.16 / 21 APOORVA RANA RANA Date:
2023.01.07 15:54:50 +0530 different cycles. In fact, even the statement of PW4 Monu Ex. PW 10/A, recorded by IO bears mention of only PW Monu himself and the deceased Prashant riding on their respective bicycles on the relevant day.
(iii) Moving on, there is also incertitude with respect to the reason as to why the deceased and his friends, including PW4, were at the spot at that time. Initially, in his cross examination dated 07.10.2022, PW4 deposed that that they were going for tuition at Bijwasan from Kapashera on the relevant date and upon being questioned as to the requirement for taking turn towards Pushpanjali farms, the said witness deposed that one of the routes to the tuition was from Pushpanjali farms which was a less crowded route, thus implying that they had taken a turn at the intersection towards Pushpnjali Farms, to take a more favorable route to their destination. However, later during his cross-examination, deviating from this statement the said PW deposed that they had intended to take a right turn towards Pushpanjali farms on that day for drinking water. Also, the fact that the deceased along with his friends was going for his tuition on the relevant day would have been within the knowledge of his father as well. However, during his deposition, father of the deceased who appeared as PW2 during trial, instead of deposing that his son was going to tuition that day, deposed that his son was going somewhere, when he met with an accident.
(iv) In addition to this, even the genuineness of the mechanical inspection report of the offending vehicle in the Digitally signed by State Vs. Vijay Siwach APOORVA Page Nos.17 / 21 APOORVA RANA RANA Date:
2023.01.07 15:54:59 +0530 present matter has been rendered dubitable in light of the fact that in the said report Ex. PW7/A, while at point no. 4 of the report, the driver's glass/mirror is reported to be in an intact condition, in the remarks as regards damages below, a fresh crack on the front glass/mirror of the offending vehicle has been reported. Further, when the concerned mechanical inspector/expert was examined during trial as PW7 in this regard, he stated in his cross-examination that the observation regarding fresh crack on the windshield of the offending vehicle was made by merely observing the cracked glass on the said vehicle. Now, this factum of crack on the windscreen of the offending vehicle has surfaced for the first time in the said report and during trial. Any such crack on the vehicle would have been very much visible by the naked eye either by any of the eyewitness or by the IO who had seized the vehicle in question as the same would have been a characteristic feature of the offending vehicle on the day when the same was seized. However, no such observation by the eyewitness/PW4 Monu or by the IO or by any of the other police official is forthcoming on record. Moreover, no photographs of the offending vehicle on the day of the alleged incident were also taken by the IO either at the time of seizure or at the spot/hospital when the IO had visited there. The reason for the said omission is also not forthcoming on behalf of the IO.
(v). In addition to the above, even the site plan Ex.
PW10/C has not been properly prepared by the IO as the same does not show the direction from which the offending vehicle was coming, or the direction in which the cycle of the victim was Digitally signed by State Vs. Vijay Siwach APOORVA Page Nos.18 / 21 APOORVA RANA RANA Date:
2023.01.07 15:55:08 +0530 moving, or the place / the direction in which the victim fell down after the collision. Further, the IO failed to join any other public person as a witness in the present case. As per the version of PW4, he was going with the deceased and three other friends on bicycles when the incident occurred. However, none of the said friends of the deceased/PW4 have been interrogated / examined during the entire course of investigation, let alone, having been made as witness in the case. No other public person has also been examined by the IO. This Court is conscious of the legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As observed above, material discrepancies have surfaced in the testimonies of prime eye witness in the case. In such a situation, evidence of an independent witness would have rendered the much needed corroborative value, to the otherwise uncompelling case of the prosecution, as discussed above. The absence of independent witness of the accident in question further raises suspicion about the genuineness of the allegations and the actual manner of occurrence of the accident due to the rash and negligent act of the accused.
30. As a sequitur to the above, this Court is of the opin- ion that the prosecution has miserably failed to establish the act of rashness or negligence on part of accused in the present case. Though, it appears that the victim has suffered fatal injuries as Digitally signed by State Vs. Vijay Siwach APOORVA Page Nos.19 / 21 APOORVA RANA RANA Date:
2023.01.07 15:55:16 +0530 mentioned on record, the prosecution has not been able to prove with certitude that the same were a consequence of the accident that had occurred due to any rash and negligent act attributable to the accused. There is no gainsaying that if two reasonably proba- ble and evenly balanced views of the evidence are possible, one must necessarily concede to the existence of a reasonable doubt. The aforementioned lacunae in the story of the prosecution ren- der the version of the prosecution doubtful, leading to the irre- sistible conclusion that the burden of proving the guilt of the ac- cused beyond reasonable doubt has not been discharged by the prosecution. In the backdrop of the above discussion, one cannot rule out the possibility regarding the suggestion put forth on be- half of accused that the accident as alleged had not occurred on account of any rashness or negligence at the end of the accused. Thus, this Court is of the opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused for offence u/s 279/304 A IPC beyond reasonable doubt, thus, entitling the accused person to benefit of doubt and acquittal.
31. Accordingly, this court hereby accords the benefit of doubt to the accused for the offence u/s 279/304 A IPC and holds the accused not guilty of commission of the said offence. Accused Vijay Siwach is thus, acquitted of the offence u/s 279/304 A IPC.
Digitally
signed by
APOORVA
APOORVA RANA
RANA Date:
2023.01.07
15:55:26
+0530
State Vs. Vijay Siwach Page Nos.20 / 21
32. Copy of this judgment be given free of cost to the accused.
Announced in the open court Digitally
on 07.01.2023, in presence of signed by
APOORVA
accused and Ld. Counsel for APOORVA RANA
accused. RANA Date:
2023.01.07
15:55:34
+0530
(APOORVA RANA)
M.M-10/Dwarka Courts/07.01.2023
It is certified that this judgment contains 21 pages, Digitally all signed by the undersigned. signed by APOORVA APOORVA RANA RANA Date:
2023.01.07 15:55:40 +0530 (APOORVA RANA) M.M-10/Dwarka Courts/07.01.2023 State Vs. Vijay Siwach Page Nos.21 / 21