Delhi District Court
State vs . Parveen Kumar on 18 November, 2022
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IN THE COURT OF MS. APOORVA RANA, M.M-10,
DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-003641-2018
Cr. Case 619/2018
STATE Vs. PARVEEN KUMAR
FIR No. 08/17
P.S Kapashera
18.11.2022
JUDGMENT
Case No. : 619/2018
Date of commission of offence : 06.01.2017
Date of institution of the case : 19.01.2018
Name of the complainant : Sh. Jagdish
Name of accused and address : Parveen Kumar
S/o Rattan Singh
R/o H.No 25, VPO
Bamdoli Village,
New Delhi-110077
Offence complained of or proved : U/s 279/338 IPC.
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date reserved for judgment : 29.10.2022
Date of judgment : 18.11.2022
State Vs. Parveen Kumar Page Nos.1 / 24
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BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused Parveen Kumar (here-in-after referred to as the accused), pursuant to charge sheet filed qua him under Section 279/338 IPC (hereinafter IPC for sake of brevity), subsequent to the investigation carried out at P.S: Kapashera in FIR no.08/2017.
2. It is the case of the prosecution that on 06.01.2017, at about 6:30 p.m, at main Najafgarh Bijwasan Road, near Prakashpuri Ashram, Ashram Morh, Bijwasan, New Delhi, within the jurisdiction of PS Kapashera, the accused was found driving one Tata Ace 'Chhota Hathi' bearing registration number DL 1LP 2675, 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 vehicle struck against one TVS motorcycle bearing no. DL 4S CM 4192, of the complainant namely Sh. Jagdish, which was being driven by the complainant at the relevant time. Owing to the aforesaid collision, the complainant fell down from his motorcycle, resulting in grievous injury to him. 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 279/338 IPC.
3. Complete set of charge sheet and other documents were supplied to the accused. Notice for offence punishable u/s 279/338 IPC was served to the accused to which he pleaded not State Vs. Parveen Kumar Page Nos.2 / 24 3 guilty and claimed trial. Further, the accused vide his statement u/s 294 Cr.P.C, had admitted the genuineness of FIR No. 08/2017 alongwith certificate u/s 65B of Indian Evidence Act Ex P/A/1, DD no. 24A dated 06.01.2017 Ex P/A/2, mechanical inspection report of DL 1LP 2675 Ex. P/A/3, mechanical inspection report of DL 4SCM 4192 Ex. P/A/4, MLC no. 000242/17 of Jagdish Ex. P/A/5, X-Ray requisition along with X-Ray plat Ex. P/A/6, and DD No. 28A dated 06.01.2017 Ex. P/A/7.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined eight witnesses in total.
5. PW-1 was Jagdish, who deposed that on 06.01.2017, he was coming back to his house after completing his duty on his motorcycle bearing registration no. DL 4SCM 4192, make TVS. Thereafter, when he reached near Prakashpuri Ashram Road on main Najafgarh Bijwasan Road, he saw one vehicle bearing no. DL 1LP 2675, make Tata ACE, coming from the side of Najafgarh, which hit his motorcycle and consequently, the complainant along with his motorcycle fell down on the spot. Thereafter, he was taken to Seema Hospital, Bijwasan and was thereafter shifted to DDU Hospital in a PCR van. That, the accident occurred due to rash driving of the accused namely Parveen Kumar as he was driving his vehicle at a speed of about 60-70 Km per hour. Thereafter, the said PW gave his statement to the police which was exhibited as Ex. PW1/A, his statement State Vs. Parveen Kumar Page Nos.3 / 24 4 recorded u/s 164 Cr.P.C was exhibited as Ex. PW1/B and the photographs of offending vehicle were exhibited as Ex. P-1 (Colly).
6. PW-2 was HC Deepak Kumar, who deposed that on 10.03.2017, he was posted as HC at PS Kapashera. On that day, IO SI Parveen Rathi joined him in the investigation of the present case. On that day, Mr. Joginder (owner of the offending vehicle) and accused came to the PS Kapashera. Thereafter, IO made necessary inquiries from them and seized the driving license of the accused and the certificate of fitness of offending vehicle vide seizure memos Ex. PW2/A and Ex. PW2/B, respectively. That, the IO formally arrested the accused vide arrest memo Ex. PW2/C.
7. PW-3 was Sh. Joginder, who deposed that he had received a notice u/s 133 MV Act, Ex. PW3/A and further added that he could not tell as to who was driving the vehicle no. DL 1LP 2675 on 06.01.2017. He failed to comment on the contents of the said notice and stated that he had not written the reply to the same in his hand writing. He moved an application for release of offending vehicle on superdari, which was exhibited as Ex. PW3/B. That, the said vehicle was released to him after preparing a punchnama which was exhibited as Ex. PW3/C. Since, the said witness had resiled from his previous statement, he was cross examined by Ld. APP for the State.
8. PW4 was HC Ramveer, who deposed that on State Vs. Parveen Kumar Page Nos.4 / 24 5 10.01.2017, he was the MHC(M) and on that day, the offending vehicle TATA Ace and the accidental motorcycle were deposited by ASI Yad Ram, regarding which he made an entry in register no. 19, the copy of which was taken on record as Ex. PW4/A(OSR).
9. PW5 was Smt. Kranti Devi, who was the owner of the motorcycle of the victim. She deposed that she got the said motorcycle released on superdari vide Ex. PW5/A. She proved the punchnama of the same as Ex. PW5/B. Photographs of the motorcycle were exhibited as Ex. P2(Colly)
10. PW6 was SI Yadram, who was the first IO in the case and who deposed with respect to the proceedings conducted by him upon receipt of DD. No. 24A and DD No. 28A and also as regards the investigation conducted by him upon registration of FIR after receipt of complaint of the complainant. He proved the rukka as Ex. PW6/A, site plan as Ex. PW6/B, seizure memos of Tata Ace and motorcycle as Ex.PW6/C and Ex. PW6/D respectively, seizure memo of documents of motorcycle and Tata Ace as Ex. PW6/E and Ex. PW6/F, respectively.
11. PW7 was SI Parveen Rathi, who was the second IO in the case and who deposed that the investigation of this case was marked to him on 17.02.2017. He got recorded the statement of victim u/s 164 Cr.P.C which was exhibited as Ex. PW7/A. Bail bonds of the accused upon his release on police bail were exhibited as Ex. PW7/B. State Vs. Parveen Kumar Page Nos.5 / 24 6
12. PW8 was SI Akash, who deposed that on 21.06.2017, he was posted at PS Kapashera. On that day, the investigation of this case was assigned to him for further investigation. Thereafter, he completed the charge-sheet and filed the same before the court.
13. On account of admission of accused u/s 294 Cr.P.C, PW at serial no.3, DO/ASI Ram Kishan, PW at serial no.4 Puran Chnad, PW at serial no.8 Dr. Devender, PW at serial no.9 Dr. Amit Kumar, PW at serial no.10 Dr. Pallavi, PW at serial no.11 r. Vinod Yadav and PW at serial no.12 Dr. Charu, as per list of prosecution witnesses were dropped from the list of prosecution witnesses and the formal proof of the documents sought to be proved by them was dispensed with. Further, it is imperative to note that PW at serial no.2, namely Natesh Kumar, was dropped from list of prosecution witnesses vide order dated 28.01.2019, of Ld. Predecessor Judge upon submissions of Ld. APP for the State to the effect that the said witness had communicated during his briefing in Court that he was not present at the spot on the relevant day and was told about the accident by PW/complainant Jagdish.
14. No other PW was left to be examined, hence, P.E was closed.
State Vs. Parveen Kumar Page Nos.6 / 24 7STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
15. 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 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:
16. 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 279/338 IPC has been proved beyond doubt.
17. 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 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.
State Vs. Parveen Kumar Page Nos.7 / 24 8APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
18. Arguments adduced by Ld. APP for State and accused have been heard. The evidence and documents on record have been carefully perused.
19. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused Parveen Kumar has been indicted for the offence u/s 279/338 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 338 IPC provides punishment for causing grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others. To drive home the guilt of the accused under section 279/338 IPC in road accident cases, 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 grievous hurt to the victim was the direct and proximate cause of the injuries suffered by way of rash and negligent 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).
State Vs. Parveen Kumar Page Nos.8 / 24 920. 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".
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 State Vs. Parveen Kumar Page Nos.9 / 24 10 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."
21. It is trite law that the burden always lies upon the 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.
22. Adverting to the facts of the present case, it may be State Vs. Parveen Kumar Page Nos.10 / 24 11 noted at the every outset, that the entire case of prosecution hinges upon the testimony of PW1, that is the victim / complainant himself, who deposed that on 06.01.2017, when he was returning to his home after his duty, on his motorcycle bearing registration number DL4SCM4192 and reached near Prakashpuri Ashram Road on Main Najafgarh Bijwasan Road, one vehicle bearing number DL1LP2675, make Tata Ace, came from Najafgarh side and hit the motorcycle of the complainant, owing to which the complainant fell down on the spot. He further deposed that he was taken to Seema Hospital, Bijwasan, whereafter, he was shifted to DDU Hospital in a PCR van. The complainant further alleged that the accident occurred due to the rash driving of the accused as he was driving his vehicle at a speed of about 60-70 km/h. 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 06.01.2017, the complainant/injured namely, Jagdish had suffered injuries consequent to the accident caused by vehicle bearing registration no. DL1LP2675, which was being driven by the accused at the relevant point of time; and,
(iii) Subject to above points being proved, whether State Vs. Parveen Kumar Page Nos.11 / 24 12 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.
23. To establish the aforesaid facts, the only witness whose testimony is relevant in this regard is that of complainant / PW1 himself, as he is the victim / 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.
a. First and foremost, it is to be noted that FIR in the present case was registered on the basis of the complaint of the complainant given by him at the police station on 09.01.2017. Now, as per record, the incident in question is reported to have occurred on 06.01.2017. Perusal of record highlights that the sole explanation forthcoming on behalf of the prosecution in this regard is to the effect that since negotiations for settlement between the parties were under way, the complainant did not give any statement initially and it was only later, on 09.01.2017, that the complainant came to the police station and gave his statement, as the settlement between the parties could not be arrived at. In this regard, deposition of PW6/IO SI Yad Ram becomes imperative as he has stated during his examination-in- chief that when he reached the DDU hospital, after receipt of DD number 28 A, he met the injured there who informed him that the State Vs. Parveen Kumar Page Nos.12 / 24 13 person who had caused the accident in question was also taking treatment at the hospital and settlement talks between them were ongoing. However, this version given by the IO is shrouded with doubts and appears to be an afterthought as not only has the complainant omitted to state the said fact in his complaint Ex. PW1/A or in his deposition as PW1, but also because this narrative given by the IO in his testimony as PW6 is in sharp contrast with his version written in the rukka Ex.PW6/A prepared by him, wherein it is explicitly stated that when, upon receipt of DD number 28A, dated 06.01.2017, he reached at DDU Hospital, he found out that the complainant had already left the hospital and returned to his home after treatment. Further, it is not even otherwise remotely apparent from record that the accused was in the same hospital as the complainant on the relevant day. In such a backdrop of facts, it was incumbent upon the complainant to elucidate as to in what manner or when and how the negotiations for settlement were carried out between the concerned parties, restraining him from filing his complaint earlier. These discrepancies with regard to delay in filing of the complaint by the complainant have remained unexplained, casting clouds of doubt over the genuineness of the allegations levelled against the accused. At this juncture, it would be apposite to refer to the following observations of the Hon'ble Supreme Court in case titled as Dilawar Singh vs State Of Delhi (2007 SC):
"8. In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make State Vs. Parveen Kumar Page Nos.13 / 24 14 deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case."
b. Furthermore, various other irregularities in the account of complainant/PW1 have surfaced during his testimony as PW1, as discussed hereinafter. During his cross-examination, the complainant admitted that he had become unconscious immediately after he fell down from his motorcycle at the time of the accident, further adding that he regained consciousness only on the next day after the accident in question. However, a bare perusal of the MLC of the complainant depicts a different story from the one stated by the complainant, wherein it has been observed by the concerned doctor at the time of examination of the victim/complainant that he was conscious and oriented. This fact is not only incongruous, but is in complete contrast to what has been deposed by the complainant in his cross examination. Not only this, during his cross-examination, complainant deposed that he had not given the information of accident to the police, however the same was given to the police by his brother. However, no such record of any information regarding the accident having been given by the brother of the complainant is available on record. The said fact has not even surfaced during the testimony of any other police witness examined by the prosecution. Furthermore, complainant admitted during trial that State Vs. Parveen Kumar Page Nos.14 / 24 15 in his statement recorded under section 164 Cr.P.C., he had mentioned that one more person namely Johnny, was accompanying the accused at the time of the accident. However, the omission on part of the complainant on this material aspect in his statement Ex. PW1/A as well as in his examination in chief in court on 28.01.2019, renders his story dubitable and unworthy of credit.
c. Additionally, since as per his own statement, the complainant had become unconscious immediately after he fell down from his motorcycle at the time of accident, it is beyond comprehension as to how he came to know the registration number of the offending vehicle and the fact that accused Parveen was driving the said vehicle at the time of accident. It would be an implausible assumption to make that in the scant period of time before the occurrence of the accident, the complainant was able to not only see and recognize the driver of the offending vehicle to be accused Parveen, but was also able to register and remember the registration number of the vehicle he was driving. It does not even seem to be the case of the prosecution that the vehicles in question were found stationed at the spot of accident in accidental condition, when the police officials had reached the spot upon receipt of information of accident, as would justify the knowledge of the registration number of the offending vehicle on part of complainant or the police officials. Apart from the complainant, no other public person has been examined as an eyewitness in the present case, who could have deposed with respect to the occurrence of the State Vs. Parveen Kumar Page Nos.15 / 24 16 accident in question, the driver of the offending vehicle and the registration number of the said vehicle. Not only this, even PW3 Joginder, who was examined as a witness by the prosecution in order to prove the notice under section 133 MV Act and its consequent reply given by the said PW, retracted from his previous statement/reply and stated in his testimony that he did not know as to who was driving the vehicle bearing number DL1LP2675 on 06.01.2017, further adding that he had not written the reply to notice under section 133 MV Act in his own handwriting. The said witness was thereafter, cross-examined by the Ld. APP for the state, but nothing substantial could be extracted out in his cross-examination, except the fact that the said witness denied the suggestion that he had earlier stated in his reply dated 06.01.2017, that his younger brother Parveen was driving the offending vehicle at the time of accident. As a sequitur to this, the fact that the vehicle in question was in fact the offending vehicle and that the accused was driving the same, cannot be said to have been conclusively established by the prosecution.
d. Moving on, one crucial fact in the case emanates from the mechanical inspection reports of the vehicles in question. On one hand, as per mechanical inspection report of the motorcycle of the complainant, Ex. P/A/4, it has been observed that there is fresh damage on the handle, shockers, number plates, headlight covers, indicators, mudguard and the left indicator at the back of the motorcycle. However, on the other hand, and quite surprisingly so, as per mechanical inspection report of the State Vs. Parveen Kumar Page Nos.16 / 24 17 offending vehicle, Ex. P/A/3, no damage whatsoever has been reported on the said vehicle. It is inexplicable as to how, no damage was sustained by the offending vehicle during the accident in question, especially in light of the apparent impact of the accident, as is evident from the damage sustained by the motorcycle of the victim/complainant. As a consequence of collision with the victim's motorcycle as described by the complainant, some damage to the offending vehicle in the form of a dent/scratch on its body should have surfaced during its mechanical inspection. In fact, when questioned on this aspect, PW6/IO SI Yad Ram also admitted that he himself had perused the mechanical inspection report of the offending vehicle and stated that the same did not suggest any damage to the body of the said vehicle. The description of the damage on the two vehicles as per these mechanical reports is irreconcilable with the actual damage which should have been reported on the offending vehicle, if the prosecution story, as portrayed, was to be believed.
e. Furthermore, 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 of around 60-70 kmph. At the very outset, how the complainant arrived at this approximation of the speed at which the accused was driving the vehicle in question, is obscure. It is not the case of the IO that he had made efforts to 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 State Vs. Parveen Kumar Page Nos.17 / 24 18 offending vehicle at the time of the 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."State Vs. Parveen Kumar Page Nos.18 / 24 19
f. Additionally, even the investigation in the present matter appears to have been conducted in a callous and lackadaisical manner. First and foremost, the site plan seems to have been prepared by the IO in a very perfunctory manner, without disclosing the actual state of affairs as seen by the IO at the accidental spot. Notably, testimony of PW6/IO reveals that he had prepared the site plan in the case at the instance of the complainant in the course of investigation after registration of the FIR. Now, as noted above, the accident is stated to have occurred on 06.01.2017, while the FIR was registered on 09.01.2017, after receipt of complaint from the complainant. The IO had evidently not proceeded to the spot soon after the occurrence of the accident in question. Thus, the IO would have presumably prepared the site plan as per the account narrated by the complainant. However, nowhere does the site plan Ex. PW 6/B portray the direction from which the offending vehicle was coming, or the direction in which the vehicle of the complainant was moving, or the place / the direction in which the complainant fell down after the collision. The IO has merely depicted the position of the vehicles in question at the spot, which too, he himself had not seen as such at the spot, for the aforesaid reasons. Though, during his deposition before the court, the complainant has stated that the offending vehicle was coming from Najafgarh side, the said statement is not corroborated by the site plan prepared by the IO. More importantly, though the site plan is stated to have been prepared at the instance of the complainant Jagdish, the same admittedly does not bear his signatures and the said fact has remained unexplained by the IO.
State Vs. Parveen Kumar Page Nos.19 / 24 20Furthermore, discrepancy with respect to preparation of the site plan also emerges from the fact that during his cross- examination, PW6/IO stated that he had prepared the site plan on 09.01.2017, but perusal of the site plan Ex. PW6/B clearly mentions the date as 10.01.2017. Much importance has been rendered to proper preparation of site plan in cases of accident by various Hon'ble High Courts and the Hon'ble Apex Court, with one such ruling relied upon, being, Abdul Sudhan Vs. State (NCT of Delhi), 2006 Delhi HC.
24. To further add to the woes of the prosecution, one personal namely Natesh Kumar, stated to be an eye witness in the case and mentioned at serial no. 2 of the list of prosecution witnesses, was not examined on behalf of the State during trial, as it was observed in order-sheet dated 28.01.2019, that the said witness had stated during his briefing in Court that he was not present at the spot and was in fact, told about the incident accident in question by complainant Jagdish. Consequently, said PW Natesh was dropped from the list of prosecution witnesses. Other than this, no public person as been joined in and examined as a witness in the present case, despite the fact that the accident in question had occurred at a public place. 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, the State Vs. Parveen Kumar Page Nos.20 / 24 21 testimony of the aforesaid witnesses in the present case is not worthy of credit. 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 and the dropping of the public/eye witness namely Natesh during trial, further raises suspicion about the genuineness of the allegations and the actual manner of occurrence of the accident. Not only this, the IO did not make an endeavor to interrogate and examine the person namely Johnny, mentioned by the complainant in his statement given under section 164 Cr.P.C., which is a serious lapse on his part. Furthermore, during his cross-examination, the IO also admitted that he made no effort to investigate and determine the name of the person with whom he had spoken over the call with respect to DD no. 24A. In addition to this, the lackadaisical attitude of the IO in the case is also apparent from the fact that during his testimony, PW7/IO SI Parveen Rathee, who was the subsequent IO in the case, failed to disclose as to on what basis section 338 IPC was added in the case, since the medical documents of the complainant/victim placed on record, bear no mention of nature of injury suffered by complainant to be grievous in nature.
25. Investigating officer is not expected to merely make endorsement on a complaint to get the FIR registered and file chargesheet in the Court. The IO must scrutinize the allegations made and seek verification of the same. He/she is expected to not just hear and analyze the facts presented by the complainant, but State Vs. Parveen Kumar Page Nos.21 / 24 22 must also record and study the version of the accused. It is only then that the allegations can be said to have been investigated.
26. Apart from the above, the testimony of no other witness touches upon the aspect of the incident in question having been actually witnessed by anyone or the accused being definitely responsible for the accident in question. Though, it appears that the victim has suffered injuries as mentioned in document Ex. P/A/5, the prosecution has not been able to prove with certitude that the same were either sustained by the victim during the accident in question or that the accident had occurred due to rash and negligent act of the accused. It has been observed by the Hon'ble Supreme Court in Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601] that, "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
The aforementioned lacunae in the story of the prosecution in the present case are material in nature and render the version of the complainant / prosecution doubtful and one cannot shy away from the possibility that the complainant has falsely implicated the accused for some vested interests, since the accused was State Vs. Parveen Kumar Page Nos.22 / 24 23 admittedly already known to the complainant prior to the occurrence of the alleged accident. In view of the glaring embellishments in the statements of the prosecution witnesses, the prosecution cannot be said to have proved beyond reasonable doubt that on 06.01.2017, the complainant / injured namely, Jagdish had suffered injuries consequent to the accident caused by vehicle bearing registration no. DL1LP2675, which was being driven by the accused at the relevant point of time.
27. There is no gainsaying that if two reasonably probable 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 render the version of the prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused beyond reasonable doubt has not been discharged by the prosecution. This court is of the opinion that the prosecution has failed to conclusively prove the actual occurrence of the accident in question due to the act of the accused as there is material inconsistency in the entire case of prosecution. In the backdrop of the above discussion, one cannot rule out the possibility regarding the suggestion put forth on behalf of accused that no such accident as alleged by the complainant had occurred in the first place, and that the accused was not driving the offending vehicle at the relevant time. 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 279/338 IPC beyond State Vs. Parveen Kumar Page Nos.23 / 24 24 reasonable doubt, thus, entitling the accused person to benefit of doubt and acquittal.
28. Accordingly, this court hereby accords the benefit of doubt to the accused for the offence u/s 279/338 IPC and holds the accused not guilty of commission of the said offence. Accused Parveen Kumar is thus, acquitted of the offence u/s 279/338 IPC.
29. Copy of this judgment be given free of cost to the accused.
Announced in the open court
on 18.11.2022, in presence of Digitally signed
accused and Ld. Counsel for by APOORVA
accused. APOORVA RANA
Date:
RANA 2022.11.18
16:19:58
+0530
(APOORVA RANA)
M.M-10/Dwarka Courts/18.11.2022
It is certified that this judgment contains 24 pages, all signed by the undersigned. Digitally signed by APOORVA APOORVA RANA RANA Date:
2022.11.18 16:20:09 +0530 (APOORVA RANA) M.M-10/Dwarka Courts/18.11.2022 State Vs. Parveen Kumar Page Nos.24 / 24