Delhi District Court
Neeru Gupta vs The State (Nct Of Delhi) Anr on 3 July, 2025
IN THE COURT OF MS. SHEETAL CHAUDHARY PRADHAN
ADDL. SESSIONS JUDGE-02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
CA No. 204240/2016 (51/2015)
FIR No. 355/2008
PS Badarpur
U/Sec. 279/304A IPC
In the matter of :-
Smt. Neeru Gupta
W/o Sh. Shankar Gupta
R/o H.No.785, Sector 18
Housing Board Colony
Faridabad, Haryana 121001
.... Appellant
Versus
1. The State
GNCT of Delhi
2. Sh. Ram Sewak
S/o Sh. Dharampal
R/o H.No.877, Block J, Gali No.19,
Hari Nagar, New Delhi (remained unserved)
.... Respondents
Date of Institution : 16.09.2015
Date of Arguments : 05.06.2025
Date of Order : 03.07.2025
Decision : Appeal Dismissed.
Order of Ld. Trial Court Upheld.
Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 1 of 26
JUDGMENT
1. Vide this order, I shall adjudicate the present criminal appeal filed by appellant for seeking setting aside of impugned judgment dated 05.05.2015 passed by Ld. Trial Court whereby the respondent/accused Ram Sewak was acquitted for the offence punishable u/sec. 279/304A IPC.
2. Briefly in the present matter, whereby the Ld. Trial Court had acquitted the respondent Ram Sewak, CA No.51/2015 was filed before my Ld. Predecessor and the same was decided and dismissed vide order dated 04.10.2016. Subsequently, the appellant filed the revision petition before the Hon'ble High court of Delhi for seeking setting aside of the judgment dated 04.10.2016. Vide order dated 09.01.2025, the Hon'ble High Court of Delhi had set aside the order dated 04.10.2016 and directed that the appeal shall be decided on merit. Further, the present court has also been directed to serve appropriate notice to respondent no.2 for his appearance. In view of the aforesaid directions, the present matter was received by the undersigned upon the direction of Hon'ble Principal District & Sessions Judge and the file was taken up on 17.01.2025 and notice was served to respondent no.2 Ram Sewak and TCR was called. Process issued to respondent no.2 Ram Sewak was received back unserved and process was also issued to the surety of accused/respondent no.2 Ram Sewak who had furnished the bail bond U/s 437A Cr.P.C. Subsequently, surety of Ram Sewak namely Naresh appear before the court and failed to make the accused/ respondent no.2 Ram Sewak appeared before the court and his Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 2 of 26 surety bonds were forfeited vide order dated 23.05.2025. Respondent no.2 Ram Sewak could not be served and therefore, the matter was listed for final arguments.
3. Appellant herein is the mother of the deceased. In my subsequent paragraphs, both the parties will be referred with the same nomenclature with which they were referred before Ld. Trial Court, in order to avoid confusion.
4. The brief facts based on the record of Ld. Trial Court are that on DD No. 20A dated 23.07.2008 was received by ASI Satya Prakash and thereafter he alongwith Ct. Ashok Kumar reached the spot where the accident had taken place and dead body was found next to motorcycle cycle No. DL3SAW 6903 and one Bus bearing no. DL1PB 0288 was found present at the spot. Subsequently, dead body was sent to AIIMS Mortuary through Ct. Anil Kumar and search for eye witnesses were made. Subsequently, eye witness namely Jai Prakash Yadav was examined by the IO upon whose statement the FIR in the present matter was registered. Aforesaid eye witness namely Jai Prakash Yadav stated in his statement that he was working in a private company on 23.07.2008 he alongwith his friend were standing on NTPC Gate, Mathura Road and were waiting for a bus, that is when around 11.45 am, one boy who was riding on his motorcycle cycle no. DL3SAW 6903 came from the side of Badarpur going towards Ashram and was hit from behind by offending bus bearing no. DL1PB 0288, Route No. 409 and the bus was being driven Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 3 of 26 by the driver in a rash and negligent manner. The aforesaid bus hit the motorcycle due to which the rider of the motorcycle fell down and died on the spot. The driver of the offending bus was found to be accused Ram Sewak S/o Dharam Pal.
5. Subsequently, upon the registration of FIR, investigation ensued and postmortem on the dead body of the deceased was got conducted and charge-sheet was filed before Ld. Trial Court on 04.12.2008. Charge was framed against the accused no. 2 Ram Sewak on 31.01.2011 and matter was listed for prosecution evidence. Statement of the accused was recorded u/sec. 294 CrPC on 20.03.2012 and accused admitted documents like FIR, Mechanical Inspection Report, Deadbody Handing Over Memo, Postmoretm Report, Deadbody Identification Memos vide Ex.A-1 to A-8.
6. Subsequently, eye witnesses PW- Jai Prakash Yadav and PW- Rohit Verma was summoned by Ld. Trial Court. PW- Jai Prakash Yadav remained unserved even through DCP concerned and PW- Rohit Verma was examined as PW1 on 23.08.2013.
7. PW1- Rohit Verma during his examination deposed that on 23.07.2008 when he was in class 12, he alongwith his friend Jai Prakash were sitting on NTPC Bus Stop, Mathura Road and were waiting for bus where one motorcycle bearing DL3SAW 6903 was coming from the side of Badarpur towards Ashram and at that time, one blue line Route NO. 409 Bus bearign no. DL1PB 0288 which also came from the side of Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 4 of 26 Badarpur towards Ashram. The motorcycle was on the side of railing and the aforesaid Bus came and hit against the motorcycle from behind right side and the motorcycle fell down on the road. The motorcyclist died on the spot. The bus was slightly passed. Police was called by his friend Jai Prakash and the witness identified the accused in the Court. The witness identified the offending vehicle and motorcycle of the victim in the photograph Ex.PX-1 to Ex.PX-7. Subsequently, the matter was deferred for cross-examination and was adjourned for PE. However, PW1 Rohit Verma did not appear before Ld. Trial Court despite several process issued against him.
8. Ld. Trial Court summoned both the eye witnesses PW1- Rohit Verma and PW- Jai Prakash through concerned DCP and both witnesses remained unserved.
9. On 05.05.2015, considering non-appearance of both the eye witnesses and remaining witnesses being formal in nature, prosecution evidence was closed, statement of accused u/sec. 313 CrPC was dispensed with and vide impugned judgment dated 05.05.2015, accused Ram Sewak was acquitted for the offences punishable u/sec. 279/304A IPC.
10. Being aggrieved by aforesaid impugned judgment, present appeal was preferred by the mother of deceased/ appellant Smt. Neeru Gupta on the following grounds :-
Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 5 of 26A. That impugned judgment passed by Ld. Trial Court is misconceived, patently illegal, and passed in haste without application of mind. B. That Ld. Trial Court did not appreciate the evidence on record properly and the respondents no. 2 has been acquitted mechanically. C. That Ld. Trial Court did not appreciate that the prosecution proved its case beyond the gloom of any misgiving.
D. That Ld. Trial Court did not appreciate that the respondent no.2 was arrested at the spot and he is named in the First Information Report as culprit who had caused the accident while driving the offending vehicle in rash and negligent manner as he hit the victim-deceased while coming from behind.
E. That charge-sheet has erred in not appreciating that PW-1 Rohit Verma was the eye-witness of the incident and he deposed in the court as per the version of the prosecution case.
F. That Ld. Trial Court has erred despondently to comprehend that the eyewitness PW-1 deposed incriminating facts against the respondent No.
2. The eyewitness was the natural public witness and had no enmity with the respondent no. 2 to falsely implicate him. He was a student and his deposition appears to be an honest and reliable one. The deposition of the eyewitness PW-1, cannot be brushed aside and ignored without any justification. His testimony cannot be perceived with the silhouette of misgiving.
G. That Ld. Trial Court did not appreciate that photographs of the spot Ex.PX-1 to Ex.PX-7 and other admitted documents corroborate the version of the eyewitness PW1.
Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 6 of 26H. That Ld. Trial Court has erred despondently to comprehend that as per the facts and circumstances of the case the doctrine of "res ipsa loquitur"
comes into play and the burden shifts on to the respondent-accused person who was in control of the offending vehicle to establish that the accident did not happen on account of any negligence on his part. The res ipsa loquitur (the thing speaks for itself) is the principle that the mere occurrence of some types of accident is sufficient to imply negligence. This is a doctrine that infers negligence from the very nature of an accident or injury, in the absence of direct evidence. However, in the instant case there is deposition of an eyewitness who has proved the guilt of the respondent-accused person.
I. That Ld. Trial Court has erred despondently to comprehend that the evidence of the PW-1 is admissible in law even in the absence of his the cross examination. That respondent/ accused had the right and opportunity to cross-examine the eye-witness (PW-1) when his examination-in-chief was recorded and the cross examination of eye- witness PW-l was deferred at the request of respondent/ accused thus he cannot take advantage of his own wrong by not cross-examining the eye- witness of the incident.
J. That Ld. Trial Court did not appreciate the fact that road in question was very wide road and the respondent did not make any attempt save the deceased by swerving to the other side when there was sufficient space rather the respondent-accused person hit the motorcycle of the deceased from the right side of the offending vehicle while coming from behind.Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 7 of 26
K. That Ld. Trial Court did not appreciate the photographs of the spot, the fact that the respondent No. 2 was arrested at the spot and the respondent No. 2 hit the deceased from behind are themselves sufficient to convict the respondent No.2.
L. That Ld. Trial Court has erred miserably to appreciate that deposition of an eyewitness cannot be discarded inspite of the fact that eye-witness did not disclose the entire facts. Reliance has placed upon the case reported as Tika Ram Versus State (NCT OF Delhi) IV (2009) DLT (CRL) 829. M. That Prosecution has been able to establish that because of the fast speed of the vehicle the accused was not able to exercise due control over it; in these circumstances he had lost control over the vehicle resulting in the consequential collision. There was every reason on the part of PW-7 of shield her driver; she was sitting in the offending vehicle at that time; she was an interested witness and did not appreciate that the respondent No.2 was driving a blue line bus and at that time the blue line buses were infamous for driving the buses rashly and negligently as one of the reasons was that they used to be in hurry to catch the passengers. N. That Ld. Trial Court has erred miserably to appreciate that respondent No.2 was a commercial driver and deserves no leniency in sentencing. The respondent No.2 deserves maximum punishment. The respondent- accused person has spoiled the life of appellant and her other family members.
11. In addition to aforesaid grounds, Ld. Counsel for appellant has argued that impugned judgment vide which the accused/ respondent no. 2 Ram Sewak was acquitted by Ld. Trial Court is against the principle of law and also against natural justice and is also beyond the probabilities Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 8 of 26 and without appreciating the evidence on record. It has also been argued that the Ld. Trial Court did not make sufficient efforts to summon the eye witnesses and that the statement of PW1- Rohit Verma categorically mentions the manner in which the accident had taken place and it was the accused who had sought time to cross-examine the witness and therefore, it was for the accused to have cross-examine the aforesaid witness on the same day but adjournment was sought. It has been argued that the testimony of PW1 cannot be discarded as the same supports the story of prosecution and the accused was liable to be convicted for committing the death of deceased by rash and negligent act. It has also been argued that respondent no. 2 despite furnishing bail bonds u/sec. 437A CrPC, has purposely not appeared before the present Court and before Hon'ble High Court of Delhi only with the intention to defeat the process of law. Ld. Counsel for appellant has relied upon the judgment in the case of Subhash Chand Vs. State of NCT of Delhi, Crl. No. 828/2002 , Hon'ble High Court of Delhi dated 30.01.2015 (para 27), wherein it has been held that :-
"27. I do not agree with the argument advanced by the learned counsel for the petitioner that it would necessary to have eye witness to give the version of the accident. There can be sufficient circumstantial evidence which would culminate into the death of the victim due to rash and negligent driving of the driver. In the present case, the testimony of PW5 Ct. A.K. Khan, PW7 Ram Nath, skipping of the petitioner from the spot and taking the false plea of alibi would be sufficient to establish the guilt of the petitioner under Section 279 and 304A IPC. On this proposition of law, I have gone through the ratio of pronouncement of Hon‟ble Apex Court in case of Balwinder Singh alias Dalbir Singh vs. State of Punjab MANU/ SC/0160/1986 in which it was held that false plea of alibi by an accused is an incriminating circumstance which gives rise to an inference of guilt.Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 9 of 26
In the present case also, as discussed above, the plea of alibi taken by the petitioner has been found to be a false one which is an additional circumstance which further establishes the case of the prosecution that the petitioner was driving the offending bus on the day of incident rashly and negligently which resulted into the death of the victim.
12. Ld. Counsel for appellant has also relied upon the judgment titled as Ravi Kapur Vs. State of Rajasthan, 2012 9 SCC 284, wherein it has been held that :-
"It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'.
The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.
13. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 10 of 26 consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record.
If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide."
13. Ld. Addl. PP for the state opposed the present appeal by arguing that impugned judgment and it needs no interference and it has been passed after proper consideration of statements of witnesses and evidence on record.
14. I have heard the arguments advanced by Ld. Counsel for appellant and Ld. Addl. PP for the State and have also carefully gone through the record.
15. Primarily, appellant has challenged the appreciation of evidence, done by Ld. Trial Court, by way of present appeal. In this regard, I must mention relevant law governing appreciation of evidence of witnesses.
16. Hon'ble Delhi High Court in case titled as Satish Bombaiya Vs. State, 1991 JCC 6147, had observed :-
Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 11 of 26"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 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 earlier evaluation of 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 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 pertained to the insignificant aspects thereof. In the former case, the defence 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."
17. So, in the wake of above law, minor discrepancies in the testimonies of prosecution witnesses have to be avoided. Evidence has to be appreciated as a whole and it has to be concluded, as to whether said evidence after being considered as a whole, gave the impression of being true version of actual incident.
18. Apart from above mentioned law relating to appreciation of evidence, I must mention here the relevant law pertaining to " rash and negligent driving", as mentioned in Sec. 279/304A IPC.
Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 12 of 2619. Section 279 IPC states as below:-
"279. Rash driving or riding on a public way.-- Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
20. Further Section 304A IPC states as under :-
304A. Causing death by negligence.-- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
21. To bring a case of homicide under section 304A IPC, the following conditions must exist, viz :-
(i) There must be death of the person in question;
(ii) The accused must have caused such death; and
(iii) That such act of the accused was rash and negligent and that it did not amount to culpable homicide.
22. This section applies where there is a direct nexus between the death of a person and the rash or negligent act. The act must be the causa causans, it is not enough that it may have been the causa sine qua-non.
Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 13 of 2623. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, 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 its consequences i.e. without belief in the result of such doing. 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 a particular individual, 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; Bala Chandra v. State of Maharashtra, : AIR 1968 SC 1319.
"A rash act is primarily an overhasty act and is opposed to a deliberate act, even if it is partly deliberate act; it is done without due thought and action. An illegal "omission" if negligent, may come under this section."
24. 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. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; Blyth Vs Birmingham Waterworks Company, (1856) 11 Ex Ch 781.
Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 14 of 2625. So, it is not every rashness or negligence, which is covered by Section 279/304A IPC. The extent of criminal negligence and rashness, is to be appreciated, on the basis of facts of each case and the evidence available on record.
26. Considering above understanding of law, I am proceeding further and appreciating the facts and evidence brought on record by the prosecution.
27. PW1 - Rohit Verma deposed on 23.08.2013 in his testimony the manner in which the alleged accident occurred and stated that the offending vehicle was slightly passed, however the matter was deferred for cross-examination of aforesaid witness. Subsequently, the aforesaid witness Rohit Verma was summoned by Ld. Trial Court on 22.05.2013 but the witness did not appear before Ld. Trial Court. The witness was again summoned on 31.01.2014 but the process issued to the aforesaid witness received back unserved. Aforesaid witness was again summoned for 08.05.2014, 29.01.2015, 05.05.2015 and on all the aforesaid occasions, the witness remained unserved as he being the tenant had left the premises. The witness remained unserved even through DCP concerned.
28. Therefore, the aforesaid testimony of the witness could not be taken into consideration by Ld. Trial Court as the accused did not get any opportunity to cross-examine the aforesaid witness as the prosecution failed to bring the aforesaid witness in the witness box for completion of his testimony.
Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 15 of 26Law Pertaining to Cross-Examination
29. The right of cross-examination is a fundamental aspect of the legal process in India, enshrined in both the Indian Evidence Act and the Code of Criminal Procedure (CrPC). This right allows the accused to challenge the credibility of witnesses presented by the prosecution, thereby ensuring a fair trial. Section 137 of the Indian Evidence Act defines the process of examination-in-chief, cross-examination, and re-examination. It establishes that the examination of a witness by the adverse party is termed cross-examination, which is a statutory right. Section 138 Indian Evidence Act also outlines the order of examination, stating that witnesses must first be examined-in-chief, followed by cross-examination if desired by the adverse party. The cross-examination can address relevant facts beyond those mentioned in the examination-in-chief. The Hon'ble Supreme Court has in catena of judgments upheld the right to cross- examine as a salutary right essential for the accused to contest the evidence against him. The right of cross-examination is a cornerstone for a fair trial and ensuring that the accused can effectively challenge the prosecution's case.
30. In the case of Sunil Mehta & Anr. Vs. State of Gujarat & Anr. AIR Online 2013 SC 381, it has been held that :-
"21. More importantly, this Court recognised the right of cross- examination as a salutary right to be exercised by the accused when witnesses are offered by the prosecution at the stage of Section 244(1) of the Code and observed:Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 16 of 26
"51. The right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross- examine the witnesses, who have been offered at the stage of Section 244(1) Cr.P.C. The accused can show, by way of the cross- examination, that there is no justifiable ground against him for facing the trial and for that purpose, the prosecution would have to offer some evidence. While interpreting this Section, the prejudice likely to be caused to the accused in his losing an opportunity to show to the Court that he is not liable to face the trial on account of there being no evidence against him, cannot be ignored."
31. In the case of Sunil Vs. State, Crl. No. 273/2009 decided on 05.01.2023 by Hon'ble High Court of Delhi, it has been held that :-
"13. In the case of Kartar Singh v. State of Punjab, (1994) 3 SCC 569, the Constitution Bench of Hon'ble Apex Court explained the purpose and importance of cross-examination of a witness. The relevant observations are as under:
"278. Section 137 of the Evidence Act defines what cross- examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in- chief, the objects of which are:-
(1) To destroy or weaken the evidentiary value of the witness of his adversary;
(2) To elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party; (3) To show that the witness is unworthy of belief by impeaching the credit of the said witness;Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 17 of 26
And the questions to be addressed in the course of cross- examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character".
14. The aforesaid view was further reiterated by the Apex Court in Jayendra Vishnu Thakur v. State of Maharashtra (2009) 7 SCC 104, wherein it was observed that:
"24. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in-chief, cross- examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross- examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradition Act, 1962 which excludes taking of evidence vis-à-vis opinion."
15. This Court also notes that it has been laid down by the Hon'ble Apex Court in catena of judgments that right to a fair trial is included in the spirit of right to life and personal liberty of a person. The very object of providing effective legal aid to a person undefended or unrepresented is to ensure that he gets free, fair and just trial in a criminal case. The Hon'ble Apex Court in the case of Zahira Habibullah Sheikh(5) v. State of Gujarat, (2006) 3 SCC 374, has explained the concept of fair trial to an accused and that it was central to the administration of justice and the cardinality of protection of human rights. The observations of Apex Court read as under:
Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 18 of 26"35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 19 of 26 trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with That would be turning a Nelson eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue, and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 20 of 26 evidence, oral and circumstantial, and not by an isolated scrutiny."
16. In M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544, the Hon'ble Supreme Court had expressed as under:
"14. The other ingredient of fair procedure to a prisoner, who has to seek his liberation through the court process is lawyer's services. Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature, moulded by Anglo-American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer power for steering the wheels of equal justice under the law. Free legal services to the needy is part of the English criminal justice system. And the American jurist, Prof. Vance of Yale, sounded sense for India too when he said:
"What does it profit a poor and ignorant man that he is equal to his strong antagonist before the law if there is no one to inform him what the law is? Or that the courts are open to him on the same terms as to all other persons when he has not the wherewithal to pay the admission fee?"
17. Similarly, the observations of Hon'ble Apex Court, on right to fair trial and effective legal aid, in Mohd Hussain v. State (Govt. of NCT of Delhi) (2012) 2 SCC 584 are reproduced herein-under:
"13. It will, thus, be seen that the trial court did not think it proper to appoint any counsel to defend the appellant/ accused, when the counsel engaged by him did not appear at the commencement of the trial nor at the time of recording Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 21 of 26 of the evidence of the prosecution witnesses. The accused did not have the aid of the counsel in any real sense, although, he was as much entitled to such aid during the period of trial. The record indicates, as I have already noticed, that the appointment of learned counsel and her appearance during the last stages of the trial was rather proforma than active. It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case, to confront the witnesses against him not only on facts but also to discredit the witness by showing that his testimony-in-chief was untrue and unbiased.
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16. In my view, every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case.
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24. In the present case, not only the accused was denied the assistance of a counsel during the trial and such designation of counsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. The Court ought to have seen to it that in the proceedings before the court, the accused was dealt with justly and fairly by keeping in view the cardinal principles that the accused of a crime is entitled to a counsel which may be necessary for his defence, as well as to facts as to law. The same yardstick may not be applicable in respect of economic offences or where offences are not punishable with substantive sentence of Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 22 of 26 imprisonment but punishable with fine only. The fact that the right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our judicial proceedings. The necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of a counsel was a denial of due process of law. It is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 of Cr.P.C.
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42. While holding the appellant guilty the trial court has not only relied upon the evidence of the witnesses who have been cross-examined but also relied upon the evidence of witnesses who were not cross-examined. The fate of the criminal trial depends upon the truthfulness or otherwise of the witnesses and, therefore, it is of paramount importance. To arrive at the truth, its veracity should be judged and for that purpose cross- examination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination-in-chief. Its purpose is to elicit facts and materials to establish that the evidence of witness is fit to be rejected. The appellant in the present case was denied this right only because he himself was not trained in law and not given the assistance of a lawyer to defend him. Poverty also came in his way to engage a counsel of his choice..."
20. The right to fair trial is a fundamental right. This noble goal will fail in case if poor man charged with an offence is unable to defend himself without lawyer to assist him. As already mentioned above, the more serious offence, the likely consequences are greater. The Court should have kept in mind the decision of the Hon'ble Apex court Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 23 of 26 in Hussainara Khatoon (4) v. State of Bihar (1980) 1 SCC
98. The right of free legal services is essential ingredient of reasonable, fair and just procedure for a person accused of an offence and same has been held implicit in the guarantee of Article 21. It is most unfortunate that despite such mandate, at times, as in the present case, there is utter disregard of the decision of the highest Court as well as the constitutional mandate.
21. It has been held in the case of Khatri (2) v. State of Bihar (1981) 1 SCC 627 that "legal aid would become merely a fake promise and it would fail of its purpose, if it were to be left to a poor ignorant and illiterate accused to ask a for free legal services. The Magistrate or the Sessions Judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State."
22. In the present case, the absence of cross-examination has resulted in gross miscarriage of justice and the Court has to guard against such an eventuality. It is to be remembered that in India, the absence of fair and proper trial is not only violation of fundamental principles of judicial procedure and constitutional mandate, but also violation of mandatory provisions of Section 304 Cr.P.C. The assistance of a legal counsel, in a meaningful way, was absent throughout the trial. Judiciary has a crucial role to play in ensuring enforcement of human rights and has to meet the great challenge towards making justice accessible in practical terms to the poor in the country.
Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 24 of 2632. Further, in the present matter, eye-witness and complainant Jai Prakash Yadav also remained unserved and did not appear before Ld. Trial Court despite several process issued against him by Ld. Trial Court for 16.03.2011, 28.09.2011, 03.07.2012, 06.03.2013, 22.05.2013, 08.05.2014, 17.10.2014, 29.01.2015 and 05.05.2015. Aforesaid witness remained unserved through DCP concerned and never appeared in the witness box and therefore the complaint upon which the FIR in this case was registered remained unproved. Witness/ complainant Jai Prakash Yadav was the star witness of prosecution and only upon his statement, the criminal law was set to motion, however the aforesaid witness did not appear before Ld. Trial Court and non-examination of aforesaid witness was fatal to the prosecution case as the same did not establish the guilt of accused/ respondent no. 2 Ram Sewak beyond reasonable doubt.
33. In my considered view, considering the law cited above and the facts of this case, I find that Ld. Trial Court rightly passed the judgment dated 05.05.2015. More so where, the appellant failed to give any cogent reason regarding any shortcoming in the application of mind by Ld. Magistrate while passing impugned judgment, I find that the present appeal is meritless. The said impugned judgment has reasons, which are not repeated here for the sake of brevity. Those reasons were outcome of proper exercise of judicial application of mind and are not arbitrary and not passed in a mechanical manner. It needs no interference. Accordingly, present Appeal, stands dismissed. The impugned judgment dated 05.05.2015 passed by Ld. Trial Court stands upheld.
Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 25 of 2634. The judgments relied upon by appellant are of no help to the cause of appellant as the same are distinguishable on facts and circumstances. Therefore, same are discarded accordingly.
File be consigned to Record Room after due compliance.
ANNOUNCED IN THE Digitally signed
by SHEETAL
SHEETAL CHAUDHARY
OPEN COURT TODAY CHAUDHARY Date:
2025.07.03
15:20:48 +0530
[Sheetal Chaudhary Pradhan]
ASJ-02, South-East/Saket/Delhi
03.07.2025
Neeru Gupta Vs. State & Anr. (CA No. 204240/2016) Page 26 of 26