Delhi District Court
State vs . Sunil on 30 January, 2021
IN THE COURT OF VIPLAV DABAS, CHIEF METROPOLITAN
MAGISTRATE, SHAHDARA DISTRICT, KARKARDOOMA COURT, DELHI.
FIR No. 325/11
PS Shahdara
U/s 279/304-A IPC
State Vs. Sunil
JUDGMENT
(a) Sr. No. of the Case 77835/16
b) Date of offence 22.10.2011
(c) Name, Parentage and Sunil S/o. Sh. Radhey Shyam,
R/o. House No. 17, Gali No. 2,
address of the accused.
Near Mohan Baba Mandir
Mandawali, Delhi.
(d) Offence 279/304-A IPC
(e) Plea of accused Pleaded Not guilty
(f) Final Order Acquitted
(g) Date of Institution 26.09.2013
(h) Date of reserving 30.01.2021
judgment
(i) Date of judgment 30.01.2021
BRIEF FACTS AND REASONS FOR DECISION:-
Case of the prosecution in brief is as follows:-
1. On 22.10.2011, at about 12:30 pm, in front of Shyam Lal College Near Police Picket, Delhi, within the jurisdiction of PS Shahdara, the accused Sunil was driving one DL-1RL-9293 in a rash or negligent manner so as to endanger human life and personal safety of others and while driving the said vehicle in aforesaid manner the accused hit against pedestrian namely Sh. Babu Ram S/o. Dilsukh while he was crossing the road due to which the victim sustained injuries and died. On the basis of aforesaid facts, the present FIR was registered for offences punishable under Section 279/304A IPC against the accused and after usual investigation chargesheet was filed.
2. The Court took cognizance of the above-said offences punishable u/s 279/304A IPC and provisions of Section 207 Cr.P.C were complied. After hearing arguments, as a prime facie case was made out against the accused FIR No. 325/11 PS Shahdara State Vs. Sunil Page 1 of 19 for offence punishable u/s 279 & 304A IPC, notice was accordingly served upon him to which accused pleaded not guilty and claimed trail.
3. In order to prove the guilt of the accused u/s 279 & 304A IPC, the prosecution has to prove the following essential ingredients of the said Sections:-
a. Section 279 IPC: The accused was driving the vehicle in a public place and that he was driving in a manner so rash or negligent as to endanger human life or to be likely to cause hurt/injury to any other person.
b. Section 304 A IPC : The death of a person is caused by rash or negligent act of accused, that the death of the victim was a direct result of rash or negligent act of accused which must be sufficient cause of death without the intervention of another act and that the act causing death does not amount to culpable homicide.
4. During the trial, the prosecution examined 08 witnesses in the present case to prove the afortesaid ingredients for substantiating the accusation.
5. PW-1 Sh. Raveesh identified the dead body of deceased and he proved the dead body identification report as Ex.PW1/A This witness was not cross examined by or on behalf of accused despite opportunity.
6. PW-2 Doctor Priyal Jain deposed that on 23.11.2011, he was posted as Junior Demonstrator in the Department of Forensic Medicine at GTB Hospital, Shahdara, that he conducted the postmortem examination on the body of Babu Ram, aged about 75 years, that there were multiple injuries on the body of Babu Ram which he mentioned in his detailed report, that in his opinion the cause of death was shock as a result of anti mortem injury to the head & chest produced by blunt force impact and that his detailed postmortem report no. 1493/11 is Ex. PW-2/A. FIR No. 325/11 PS Shahdara State Vs. Sunil Page 2 of 19 This witness was not cross examined by or on behalf of accused despite opportunity.
7. PW-3 Shekhar Anand (Record Clerk), GTB Hospital, proved the MLC Ex. PW-3/A by identifying the signature and handwriting of Dr. Subhash, Junior Resident who had examined the victim at the hospital.
This witness was not cross examined by or on behalf of accused despite opportunity.
8. PW-4 ASI Shripal deposed that on 22.10.2011, he was posted at PS Shahdara as Head Constable and that he was on picket duty at Shyam Lal College from 10:00 am to 01:00 pm. He deposed that at about 12:30 pm, one TSR bearing no. DL-1RL-9293 coming from the side of Welcome and going towards Ghaziabad hit a pedestrian who was crossing the road at the end of the over bridge (towards Ghaziabad), that he immediately reached at the spot and saw the injured and condition of the injured was critical, that he called at 100 number, that PCR officials came at the spot and took the injured to the hospital, that he apprehended the driver of the abovesaid TSR at the spot, that at the same time, SI Jai Prakash and Ct. Babu Lal came at the spot and inquired him regarding the incident and that he told him that injured was taken to the hospital by PCR officials. He further deposed that SI Jai Prakash and Babu Lal went to the GTB Hospital where injured was not fit for statement, that they came back at the spot and recorded his statement Ex. PW-4/A, that IO/SI Jai Prakash prepared site plan at his instance Ex. PW-4/B and handed over the rukka to Ct. Babu Lal for registration of FIR, that he went to the PS and got the FIR registered and came back to the spot along with copy of FIR and original rukka, that offending vehicle i.e. TSR was seized vide seizure memo Ex. PW-4/C and that documents of offending vehicle i.e. Carbon copy of seizure memo of RC, permit in FIR No. 193, PS Kotwali and insurance & one carbon copy of seizure memo of DL and badge were seized vide seizure memo Ex. PW-4/D & Ex. PW-4/E. FIR No. 325/11 PS Shahdara State Vs. Sunil Page 3 of 19 He further deposed that accused Sunil was arrested vide arrest memo Ex. PW-4/F and his personal search was conducted vide memo Ex. PW-4/G. He deposed that accused driver was driving the TSR roughly and in a rash/negligent manner.
Four photographs of the TSR bearing registration no. DL-1RL-9293 are shown to the witness and witness correctly identified the same as Ex. P-1 to P-4. Six photographs of the place of incident showing the offending TSR are shown to the witness and same are Ex. P-6 to P-10.
The accused was correctly identified by the witness during evidence.
During the cross examination conducted on behalf of accused, the witness deposed that on the date of incident he had mobile phone, however, he does not remember its number and that he told at 100 number that accident was caused by a TSR but he did not tell its registration number. The witness denied that the suggestion that he did not tell that the accident was caused a TSR at the same time. He further deposed that there was no traffic signal or zebra crossing at the place and time of incident and that he does not know how many CCTV cameras are installed at Shyam Lal College.
The witness denied the suggestion that victim was crossing the road wrongly and from unauthorized place. He deposed that PCR officials came at the spot in about five minutes after the incident. He volunteered that PCR official came at the spot in about 05 minutes after making the call at 100 number, however, he does not remember the exact time. He deposed that at the place of incident, traffic was moving and 8-10 public persons were present at the spot. He volunteered that public persons came and saw the place of incident, injured and offending vehicle and left the spot.
He further deposed that at about 12:40 pm, PCR officials took the FIR No. 325/11 PS Shahdara State Vs. Sunil Page 4 of 19 injured to the hospital, that offending TSR hit the injured from the front left side, that the injured was crossing the road from South to North, that the offending TSR was going towards West to East, that IO came at the spot after 10 minutes of making the call on a motorcycle, that IO along with Ct. Babu Lal went to GTB hospital after 2-3 minutes and that they came back at the spot after 40 minutes. He also deposed that Ct. Babu Lal went to the PS with rukka at about 2:45 pm and came back after 20-25 minutes upon registration of FIR and that IO obtained his signatures on site plan Ex. PW-4/B. The site plan Ex. PW-4/B was shown to the witness and same did not bear his signature. The witness denied the suggestion that IO did not prepare any site plan at his instance.
He further deposed that there was no speedometer at the spot with police officials. He admitted that one cannot tell the exact speed of the vehicle by observing the same. He also deposed that IO left the spot at about 5:00 pm, that the writing work was done by the IO while sitting at footpath, that IO recorded his statement and of Ct. Babu Lal at the spot and that IO did not record statement of public person present at the spot. He denied the suggestion that he did not make call to PCR or that accident was not caused by the TSR of the accused or that injured got hit by an unknown vehicle because of his negligence while crossing the road or that accused was arrested while he was taking tea from tea shop near the spot, that accused was falsely implicated in the present case, that all the proceedings were done while sitting in PS and that he is deposing falsely.
9. PW-5 ASI Kusheswar Tiwari deposed that on 22.10.2011, he went to the mortuary, GTB Hospital with IO Jai Prakash where postmortem of deceased Babu Ram was conducted and after his postmortem, his dead body was handed over to his relatives and that IO recorded his statement.
During the cross examination conducted on behalf of accused, the witness deposed that he does not remember the time when he reached the FIR No. 325/11 PS Shahdara State Vs. Sunil Page 5 of 19 mortuary and that IO recorded his statement only one once.
10. PW-6 Retired SI Jai Prakash deposed that on 22.10.2011, he received DD No. 43-B and reached at the spot with Ct. Babu Lal, that the spot is in front of Shyam Lal College, where he met HC Shree Pal who informed him regarding the accident caused by TSR, that victim was taken to the hospital in PCR van and that offending TSR and the driver of the vehicle were present at the spot. Thereafter, he along with Ct. Babu Lal went to GTB Hospital, where he obtained the MLC NO. 6132 of the victim, that as per MLC, the victim was fit for statement but he did not give his statement, that he received the MLC and came back at the spot and that he recorded the statement of HC Shree Pal, prepared rukka Ex. PW-6/A and handed over the same to Ct. Babu Lal for registration of FIR who went to the PS and got the FIR registered and came back at the spot along with copy of FIR and original rukka. He further deposed that he prepared the site plan at the instance of HC Shree Pal Ex. PW-4/B, that driver of the offending TSR i.e. accused Sunil was arrested vide arrest memo Ex. PW-4/ F and that his personal search was conducted vide memo Ex. PW-4/G. He further deposed that offending vehicle was seized vide seizure memo Ex. PW-4/C and that case property was deposited in the Malkhana and accused was taken to the PS where he was released after furnishing of bail bond.
He also deposed that he seized the documents of offending vehicle i.e. TSR vide seizure memo Ex. PW-4/D and that on the same day in the night, a DD regarding death of victim in the present case was received and he added Section 304-A IPC in the present case.
He further deposed that on 23.10.2011, he along with Ct. Kusheswar Tiwari went to the mortuary of GTB Hospital where postmortem of the victim was conducted and after postmortem, dead body was handed over FIR No. 325/11 PS Shahdara State Vs. Sunil Page 6 of 19 to his son, that he recorded the statement of witnesses and that case file was transferred from him and that he deposited the case file with MHC (R). The accused was correctly identified by the witness.
During the cross examination conducted on behalf of accused, the witness deposed that he received DD NO. 43-B at about 12:35 pm, that he reached at the spot in 5-7 minutes after receiving the said DD, that public persons were present at the spot, however, he does not remember the exact number, that he does not remember the exact time when he reached the hospital and that he enquired about the accident from the victim/deceased in detail.
He further deposed that he came back at the spot at about 2:15 pm, that there was no red light at the place of incident but there was crossing, that he did not mention in his charge-sheet that there was zebra crossing at the place of incident, that the offending vehicle was coming from the side of Welcome and going towards Dilshad Garden, that he did not obtain the CCTV Footage of the incident, that he remained at the spot for about 3 hours after returning from the hospital, that Ct. Babu Lal went to the PS for registration of FIR and that he came back at the spot in about 35-40 minutes. He further deposed that no public witness was found at the place of incident, that he did not record the statement of public witness, that he does not remember where victim received the injury and that he did not collect the sample of blood from the spot.
He also deposed that the front portion of the TSR hit the victim, that the road on which accident occurred was going towards east direction from West, that the victim was going from South to North and that he does not remember whether he obtained the signature of HC Shree Pal on the site plan.
The witness denied the suggestion that there was no zebra FIR No. 325/11 PS Shahdara State Vs. Sunil Page 7 of 19 crossing and that victim was crossing the road in negligent manner. He deposed that he does not know whether there was heavy traffic at the spot at the time of incident or not. He denied the suggestion that the accident took place with some unknown vehicle or accused has been falsely implicated in the present, that he has not conducted proper investigation, that all the documents were prepared in the PS and that he is deposing falsely.
11. PW-7 Ct. Babu Lal, deposed that on 22.10.2011, he was posted at PS Shahdara as a constable and that he was on emergency duty from 8:00 am to 8:00 pm. He deposed that at about 12:30, a call regarding accident near Shyam Lal College was received, that he along with SI Jai Prakash reached near Shyam Lal College where they met HC Sripal who produced the offending TSR bearing registration no. DL-1RL-9293 and accused, that victim was already taken to the hospital through PCR, that he along with HC Sripal remained at the spot and that IO/SI Jai Prakash left for the hospital. He further deposed that after about 40 minutes, IO/SI Jai Praksh came back at the spot and handed over him the tehrir for registration of FIR, that he went to the PS and got the FIR registered and came back at the spot in 20 to 25 minutes and handed over the original rukka and copy of FIR to IO/SI Jai Prakash and that IO prepared the site plan at the instance of HC Sripal. He further deposed that accused was arrested vide arrest memo Ex. PW-4/F and his personal search was conducted vide memo Ex. PW-4/G, that the documents of the offending vehicle i.e. RC, permit and other documents were seized vide seizure memo Ex. PW-4/D, that the above said TSR was also seized vide seizure memo Ex. PW-4/C, that IO recorded his statement and that they came back to the PS. The accused was correctly identified by the witness during evidence.
Four photographs of the TSR bearing registration no. DL-1RL-9293 are shown to the witness and witness correctly identified the same as Ex. P-1 to P- 4.
During the cross examination conducted on behalf of accused, the witness deposed that when he received the call regarding accident, details of FIR No. 325/11 PS Shahdara State Vs. Sunil Page 8 of 19 accused and registration number of offending vehicle were not mentioned, that they left the PS at about 12:32 pm and reached at the spot in two minutes at about 12:34 pm, that at the spot, 10-15 public persons were present, that IO had enquired 2 to 4 public persons regarding the accident but IO did not record the statement of said public persons and that IO did not give any notice to said public persons. He further deposed that IO had left the spot at about 12:35 pm, that he does not remember the exact time when IO came back at the spot, that IO had recorded his statement and HC Sripal, that IO had recorded two statements of HC Sripal and recorded his statement at the spot, that the site plan prepared by the IO did not have signature of anyone and that IO did not enquire regarding the direction of the victim at the spot. He admitted that no Zebra crossing or red light was present at the spot. He volunteered that there was a road break up on the spot and police picket was also there. He further deposed that it is not necessary that due to speed breakup and police picket speed of vehicle becomes slow and that the police personnel posted at police picket also have duty to check the vehicle. He volunteered that every vehicle is not checked . He deposed that only suspicious vehicles are checked, that blood was spreading at the spot on the road in the area of 2 to 3 sq. ft. on the left side of the road, that IO did not collect the blood sample from the spot, that IO had done writing work on the footpath and that they left the spot around 4:15 to 4:20 pm along with IO. He admitted that he had not seen the accident.
The witness denied the suggestion that no accident was caused by the vehicle of the accused and that he is deposing falsely at the instance of IO.
12. PW-8 SI Subhash Chander, deposed that in the month of November 2011, he was posted as ASI at MACT Cell, North-East District, that the investigation of the present case was marked to him and on the application of the superdar Ramashray, he released the offencing vehicle i.e. TSR bearing no. DL-1RL-9293 vide superdarinama, that he recorded the FIR No. 325/11 PS Shahdara State Vs. Sunil Page 9 of 19 statement of Ramashray, that documents of the offending vehicle and DL of accused were verified and Detailed Accident Report (DAR) was filed in the MACT Court and that in January 2012, he prepared the chargesheet and submitted the same in the Court.
During the cross examination conducted on behalf of accused, the witness deposed that he did not conduct any material investigation and only filed the charge-sheet in the present case. He denied that he had filed incorrect chargesheet and that he is deposing falsely.
13. On 06.04.2018, vide a separate statement, accused admitted factum preparation of various documents i.e. FIR Ex. C.1, DD No. 43B, DD NO. 27B Ex. C-2, DD No. 20A Ex. C-3, inspection report of offending vehicle Ex. C-5, statement of Mukesh Ex. C-6, MLC No. B-6132/2011 Ex. C-7, MHC(M) Register No.19 Ex.C-8 and Superdarinama Ex. C-9. In view of this statement, the prosecution witnesess qua the said documents were dropped.
14. Thereafter, Prosecution Evidence was closed as all the material witnesses were examined and on 04.12.2019, statement of Accused was recorded U/Sec 281 r/w 313 Cr.P.C wherein all the incriminating circumstances appearing in evidence were put to the accused who replied that he is an innocent and poor person, that he was taking tea after parking his TSR near Shyam Lal College and he was wrongly arrested and falsely implicated in this case. Accused did not chose to lead evidence in his defence and accordingly defence evidence was closed. Thereafter, matter was fixed for final arguments.
15. This Court heard the arguments advanced by Sh. Ashutosh Pandey, Ld. APP for the State and Ld. Counsel for the accused and has perused the record of the case.
16. The case of prosecution is that on 22.10.2011, at about 12:30 pm FIR No. 325/11 PS Shahdara State Vs. Sunil Page 10 of 19 in front of Shyam Lal College near police picket the accused was driving his TSR roughly, rashly and negligently and had hit the pedestrian at the end of the overbridge while he was crossing the road due to which the victim sustained injuries and died.
17. The defence version is that the accused has been falsely implicated in the present case when he was taking tea after parking his TSR near Shyam Lal College.
18. In order to prove the guilt of the accused for offence punishable u/s 279/304 A IPC, it is necessary for the prosecution to prove beyond the reasonable doubt that accused was driving the vehicle on a public way, that the offending vehicle was being driven by the accused in a rash and negligent manner and that due to the said manner of driving an accident was caused wherein the victim sustained injuries and consequently died.
19. Record shows that the factum of happening of the accident on the public way as well as the fact that death of the victim was caused due to injuries sustained in accident are not disputed by accused but the factum of causing of alleged accident by the TSR driven by the accused and presence of rashness/negligence in the conduct of the accused while driving the TSR are denied by the defence.
20. Perusal of the record and testimonies shows that out of various witnesses brought by the prosecution only PW-4 ASI Shripal is the eye witness who as per his testimony happened to see the accident being present on picket duty at Shyam Lal College and reached at the spot of accident and had also apprehended the accused/driver of TSR at the spot. PW-4 had also called PCR at the spot. PW-6 SI Jai Prakash and PW-7 Ct. Babu Lal are the police officials who reached the spot after receipt of information of the accident, where they met the PW-4 on the spot and started conducting usual investigation process. Thus, PW-4 is the most relevant and important witness FIR No. 325/11 PS Shahdara State Vs. Sunil Page 11 of 19 for establishing the manner of happening of accident, the identity of offending vehicle as well as accused being its driver and presence of rashness/negligence in the conduct of accused.
21. PW-4 stated in his examination in chief that he was on picket duty at Shyam Lal College from 10:00 am to 1:00 pm, that at about 12:30 p.m. one TSR bearing no. DL-1RL-9293 coming from the side of welcome and going towards Ghaziabad hit a pedestrian who was crossing the road at the end of overbridge (towards Ghaziabad) and that he immediately reached at the spot and saw that condition of injured was critical. PW-4 further deposed in his examination in chief that PW-6/IO/SI Jai Prakash prepared the site plan Ex. PW-4/A at his instance and accused was arrested by PW-6 on the spot vide arrest memo Ex. PW-4/F bearing his signatures. PW-4 further deposed that accused was driving the TSR roughly and in rash and negligent manner.
22. It is clear from the examination in chief of PW-4 that he did not expressly state that he had seen the happening of accident. The testimony shows that he reached the spot after happening of the accident. It implies that the version of his witnessing the accident is highly doubtful. Perusal of the duly admitted DD No. 27-B Ex. C-3 reveals that departure entry for Shyam Lal College was made qua PW-4/Shripal. It is nowhere stated in the said DD that PW-4 was deputed on picket duty at Shyam Lal College or that any such picket ever existed at Shyam Lal College where PW-4 was deputed. So, there is a serious doubt about deputation of PW-4 on the picket at Shyam Lal College which further creates grave suspicion upon his testimony of seeing the alleged accident.
23. Record further shows that as per testimony of PW-4 the site plan Ex. PW-4/A was prepared by PW-6/IO at instance of PW-4 on the spot. In the cross examination, PW-4 admitted that PW-6/IO obtained his signatures on site plan. On being confronted with site plan, it was not found bearing the signatures of PW-4 which being a material contradiction creates grave doubt FIR No. 325/11 PS Shahdara State Vs. Sunil Page 12 of 19 upon the preparation of site plan at the instance of PW-4 on the spot as well as presence of PW-4 on the spot which further falsifies the prosecution version of witnessing of the accident by PW-4. PW-6/IO testified that he does not remember whether he obtained the signature of HC Shripal/PW-4 on the site plan. PW-7/Ct. Babu Lal stated in his cross examination that site plan prepared by IO did not have signatures of anyone which is inconsistent with the site plan as the same is bearing the signatures of PW-6/IO/SI Jai Prakash. These inconsistent testimonies create serious doubt upon the very presence of PW-4, PW-6 and PW-7 on the spot as well as the factum of preparation of site plan on the spot.
24. Perusal of the site plan shows that neither the police picket at Shyam Lal College nor the presence/location point where PW-4 was present and happened to see the accident are mentioned therein. This being material omission falsifies the prosecution version of presence of PW-4 on picket duty at Shyam Lal College and witnessing of accident by him.
25. It is seen from testimony of PW-4 that he testified in his cross examination that there was no traffic signal or zebra crossing at the place and time of incident. PW-6/IO stated in his cross examination that there was no red light at the place of incident but there was a crossing and that he did not mention in the chargesheet that there was a zebra crossing at the place of incident. This testimony shows that PW-6 has improved the version by stating about the presence of zebra crossing at the spot which is not supported by PW-4 who did not say anything about the existence of zebra crossing. PW-7 who was also present at the spot along with PW-6 admitted in his cross examination that no zebra crossing/red light was present at the spot which is consistent with the version of PW-4 but he volunteered that there was a road breakup and police picket on the spot. This voluntary statement made by PW- 7 is a material improvement upon the version of PW-4 and PW-6 who did not utter any word about the presence of speed breakup and police picket at the spot. These material improvements made by aforesaid PWs create grave FIR No. 325/11 PS Shahdara State Vs. Sunil Page 13 of 19 suspicion upon the very presence of PW-4, PW-6 and PW-7 on the spot as it is highly improbable that three persons present at the same spot are not consistent about the existence of zebra crossing, police picket or speed/road breakup which further suggests that the version of PW-4 qua witnessing the incident is not creditworthy. Regarding the aforesaid testimonies, it is important to refer to the site plan wherein neither any red light, zebra crossing, speed breakup or police picket is shown at the spot. This omission further reinforces the aforesaid observations thereby falsifying the alleged prosecution version.
26. PW-4 testified in his cross examination that at the place of incident 8-10 public persons were present and IO/PW-6 did not record the statement of public persons present at the spot whereas PW-6/IO contradicted PW-4 by deposing in the cross examination that no public witness was found at the place of incident and he did not record the statement of public witnesses. PW- 7 who was present at the spot along with PW-6 deposed in his cross examination that 10-15 public persons were present at the spot but IO had neither recorded the statement of these public persons nor gave any notice to said public persons. These depositions indicate that public persons were present on the spot when the accident took place and (PW-6 & PW-7) reached there and that PW-6 neither gave notice to public persons to join the investigation nor recorded their statement.
27. These contradictions in the testimony of PW-6 and PW-7 interse as well as with testimony of PW-4 create grave doubt upon their presence on the spot which further makes the testimony of PW-4 that he witnessed the accident, apprehended the accused on the spot and handed him over to PW- 6 and PW-7 on the spot highly unreliable. It further indicates that chances of subsequent planting of PW-4 as eyewitness cannot be ruled out because his presence on the spot is not established. Furthermore, non joinder of public witnesses despite availability at the spot is an unexplained material omission which creates grave doubt on the alleged prosecution version of happening of FIR No. 325/11 PS Shahdara State Vs. Sunil Page 14 of 19 the accident at the alleged spot as well as presence of said PWs on the spot.
28. PW-4 deposed that he called PCR which reached the spot and took the injured to hospital. Record shows that neither any document from PCR nor any staff deputed with PCR on that day was examined by the prosecution to substantiate the version of prosecution. This record is material one for completing the chain of events and the omission to prove this record creates doubt upon the presence of PW-4 on the spot. PW-4 admitted that he did not tell the registration number of the TSR when he called at 100 number. PW-7 deposed that when he received the call regarding accident, details of accused and registration number of offending vehicle were not mentioned. These omissions qua mentioning details of TSR and accused despite presence of PW-4 on the spot at the time of accident show that said testimony of PW-4 is not reliable which further indicates that prosecution version of witnessing the accident by him and causing of the accident by the offending vehicle due to rashness/ negligence is not true.
29. Perusal of the record and the duly admitted mechanical inspection report Ex. C-5 shows that no substantial damage is mentioned in the report which is suggestive of involvement of the offending vehicle in a severe accident wherein death of the victim is caused due to hit. The report does not mention the presence of blood stain on the body of the offending vehicle. It is further seen that the tyre marks which are bound to appear on road upon stopping of a vehicle driven roughly or at high speed on the decline of overbridge as is the case herein, were also not lifted during investigation. No blood marks were lifted from the spot despite availability as should have been done in a case like the present one. These omissions along with inspection report Indicate that no circumstance suggesting the involvement of the offending vehicle in the alleged accident is available on record which shows that chances of false implication of accused who was taking tea after parking his TSR near Shyam Lal College, can not be ruled out..
FIR No. 325/11 PS Shahdara State Vs. Sunil Page 15 of 1930. It follows from the aforesaid discussions that neither any reliable/creditworthy eyewitness nor any clinching circumstance has been brought and proved on record by the prosecution to establish the factum of causing of accident by offending vehicle being driven by the accused/driver in rash/negligent manner which falsifies the prosecution version and thus substantiates the defence version of false implication of accused and his vehicle.
31. With respect to the allegations of rashness or negligence, even if for the sake of arguments it is admitted that the offending vehicle was involved in the alleged accident and the accused was driving the vehicle in question at the time of the accident, still for fastening criminal liability for the offence punishable under Section 279/304-A IPC the mode and manner of driving needs to be established beyond reasonable doubt so as to bring it within the ambit of rashness and negligence.
32. Regarding the aspects of rashness/negligence, it is pertinent to mention that PW-4 (the sole eye witness whose testimony is not reliable as discussed above) stated that the accused was driving his TSR roughly, rashly and negligently and had hit the pedestrian at the end of the overbridge while he was crossing the road due to which the victim sustained injuries and died. It is evident from the observations made herein above that no red light signal/zebra crossing/ speed break up/ road break up/ picket has been shown in the site plan, so, the very presence of these points at the spot is not established. The siteplan shows there was no place at the spot from which a person can think of crossing the road which creates grave doubt upon the alleged spot. PW-4 did not utter anywhere that the offending vehicle hit the victim from behind which implies that there is no material indicating the presence of rashness/negligence per se in the conduct of the offending driver at the time of alleged accident. Thus, it is not a case of rashness/negligence per se. Bare perusal of the record and testimonies shows that manner in which the victim was hit by the offending vehicle is not clear at all. The sole FIR No. 325/11 PS Shahdara State Vs. Sunil Page 16 of 19 eyewitness PW-4 did not even tell the approximate speed of the offending vehicle at the time of accident.
33. It is settled law that merely driving at high speed does not amount to rashness or negligence as the speed is a relative concept consequence of which depends upon certain other parameters which are not present in this case as discussed above. So, mere allegation that the accused was rash or negligent or that he was negligent as he was driving at very high speed or roughly without explaining the manner as to how rashness or negligence is being imputed to the conduct of the offending driver can by no stretch of imagination be considered sufficient to fasten criminal liability upon the accused as the phrase rashness or negligence unless explained is nothing more than a mere adjective.
34. It is thus clear from the aforesaid discussion that no reliable material has been brought and established by the prosecution to prove that the accident was caused due to rashness or negligence on the part of the accused.
35. Regarding the burden of proving the prosecution version it is pertinent to mention the case law reported as " Sadhu Singh Vs. State of Punjab : 1997 (3) Crime 55, wherein the Punjab & Haryana High Court had observed that-
"In a criminal trial it is for the prosecution to establish its case beyond reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused". Following the aforesaid observations and considering the inconsistencies, omissions, contradictions and FIR No. 325/11 PS Shahdara State Vs. Sunil Page 17 of 19 incoherent testimonies, this Court is of the view that prosecution has not been able to travel the entire distance from 'may have' to 'must have' and thus it can not be said that prosecution has been able to prove its case beyond reasonable doubts.
36. Considering the present factual matrix, it is pertinent to mention that the Hon'ble Supreme Court observed in the case titled as 'Bhagwan Singh and Ors. Vs. State of M.P. [2002 (4) SCC 85], that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing out to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that the miscarriage of justice is avoided. So, following the aforesaid observation and the testimony of witnesses, benefit of doubt also accrues in favour of the accused.
37. It thus emerges from the aforesaid discussion and perusal of testimonies of PWs as well as record that there is neither any reliable eyewitness of the incident nor any other circumstance to prove the identity of the accused as driver of offending vehicle at the time of accident, the identity of offending vehicle and the presence of rashness or negligence on the part of the accused which are essential elements for completion of offences punishable u/s 279 & 304 A IPC.
38. Considering the afore-discussed testimonies, this Court is of the view that arguments advanced by the Ld. APP for the State that the prosecution has proved all the ingredients necessary for completion of the alleged offences do not have any force whereas the arguments made on behalf of defence that the accused has been falsely implicated are found to be justified.
FIR No. 325/11 PS Shahdara State Vs. Sunil Page 18 of 1939. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case against the accused beyond reasonable doubts. Accordingly, accused Sunil is hereby acquitted of the charge u/s 279 & 304 A IPC levelled against him. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
40. Fresh bail bond and surety bond furnished in compliance of Section 437 (A) Cr.P.C are considered and accepted.
41. File be consigned to the Record Room after due compliance.
ANNOUNCED IN THE OPEN COURT ON 30.01.2021 (VIPLAV DABAS) Chief Metropolitan Magistrate Shahdara, District, Karkardooma Court 30.01.2021 FIR No. 325/11 PS Shahdara State Vs. Sunil Page 19 of 19