Delhi District Court
State vs Ishrar on 24 January, 2025
IN THE COURT OF SHRI VAIBHAV KUMAR
JMFC/METROPOLITAN MAGISTRATE-05 : NDD
PATIALA HOUSE COURTS : NEW DELHI.
State Vs. : Ishrar FIR No.: 364/2016
U/s. : 279/338 IPC P.S.: Sarojini Nagar
Cr case No.8843/2017
DLND020087512017
1. Date of commission of offence : 08.08.2016
2. Date of institution of the case : 10.04.2017
3. Name of the complainant : Sh. Bharat Kumar
4. Name of accused, parentage &
address : Israr S/o Abdul Latif R/o H
No.O-499, Sunder Nagri Nand
Nagri, Delhi.
5. Offence complained of : 279/338 IPC
6. Plea of the accused : Pleaded not guilty
7. Final order : Acquittal
8. Date of final order : 24.01.2025
Argued by:- Ms. Ishita Chadha, Ld. APP for the State
Mr. Varun Mathur, Ld. Counsel for accused.
FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.1 of 27
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:-
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 08.08.2016, at about 10:15 AM at I Block, Sarojini Nagar, within the jurisdiction of PS Sarojini Nagar, the accused Israr was driving a TSR bearing no. DL 1RS 2747 in a rash and negligent manner and same was towing another TSR bearing no. DL 1RP 6838. It is alleged that the vehicle which was being towed got disbalanced and collided with the motorcycle of the complainant bearing no. DL 3SCH 4857 due to which the pillion rider of the motorcycle namely Sarita Devi sustained grievous injury. As such, it is alleged that the accused Israr committed the offence punishable under Section of 279/338 IPC, for which FIR no.364/2016 was registered at the Police Station Sarojini Nagar, Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigation Officer (hereinafter referred to as the "IO") undertook investigation and on culmination of the same, the charge sheet was filed against the accused person namely Israr. After taking cognizance of the offence, the accused, Israr was summoned to face trial.
FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.2 of 27
3. On appearance of the accused, a copy of charge sheet was supplied to the accused in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPC"). After the arguments on charge, on finding a prima facie case against the accused person, a notice of accusation for offence under section 279/338 IPC was served to the accused on 26.09.2019 by Ld. Predecessor of this Court. The accused pleaded not guilty to the aforesaid charge and claimed trial.
PROSECUTION EVIDENCE:
4. During the trial, the prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:
ORAL EVIDENCE PW-1 Sh. Bharat Kumar PW-2 Ms. Sarita PW-3 Ms. Sammu Beg PW-4 Retired SI Ombir Singh PW-5 ASI Sandeep DOCUMENTARY EVIDENCE Ex.PW-1/A Site plan Ex.PW-1/B Seizure memo of both TSR Ex.PW-1/C Seizure memo of offended motorcycle Ex.PW1/D Seizure memo of DL and Badge of accused Ex.PW1/E Seizure memo of RC, permit, fitness and insurance of offending vehicle FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.3 of 27 Ex.PW1/F Statement of complainant Ex.PW1/G Statement of accused Ex.PW1/H Personal search memo Ex.PW1/I Superdarinama of motorcycle Ex.P-1 (colly) Photographs of offending vehicle Ex.P-2 (colly) Photographs of offended vehicle Ex.PW4/A Rukka Ex.PW4/B Notice under Section 133 M V Act ADMITTED DOCUMENTS Ex.A-1 FIR No.364/2016 Ex.A-2 Certificate under Section 65B of IEA Ex.A-3 DD No.12A dated 08.08.2016 Ex.A-4 DD No.22B dated 08.08.2016 Ex.A-5 Inspection report of vehicle No.DL 1RS2747 Ex.A-6 Inspection report of vehicle No.DL3SCH 4857 Ex.A-7 Inspection report of vehicle No.DL 1RP 6838 Ex.A-8 MLC No.576572 dated 08.08.2016 Ex.A-9 Motor Licensing Officer Ex.A-10 RTO Rajpur Road Burari Ex.A-11 Nodal Officer Insurance Policy Ex.A-12 X-ray report 31309/2016 FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.4 of 27
5. PW1/Bharat Kumar has deposed that he works at Hitachi Payment Company as Manager and on 08.08.2016 at about 10 to 10:15 AM, he was going to one of his relative's office along with pillion rider namely Sarita @ Savita, when he reached at Sarojini Nagar I Block crossing, one auto bearing no. DL1RS 2747 came from Nauroji Nagar (Madhav Rao Sindhiya Marg) which was towing another auto bearing no. DL1RP 6838 in high speed. He deposed that he stopped his bike at the crossing. Suddenly the second auto bearing no. DL 1RP 6838 got dis balanced and struck his bike from left side and his relative who was the pillion rider sustained injury on her left leg. He deposed that they fell down on the ground and the auto driver was stopped. The witness has correctly identified the accused Israr as the driver of first auto bearing no. DL1RS 2747 in the Court. He deposed that he made a call at 100 number and police came at the spot and took his relative to Vardhaman Mahaveer trauma centre. IO prepared site plan at his instance. He deposed that IO seized both the TSR bearing no. DL1RS 2747 and DL1RP 6838, motorcycle, DL and badge of the accused. He deposed that IO has also seized RC, permit and fitness certificate and Reliance Insurance policy and recorded his statement. IO arrested the accused and conducted the personal search of accused. He deposed that the said vehicle was released on Superdari. The witness correctly identified the accused and the case property. During cross examination, he deposed that he and the victim were wearing helmets. He deposed that at the time of incident, the speed of auto was at about 80 KM/H. Auto did not turn over at the time of incident and it stopped after hitting FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.5 of 27 the pillion rider. He has deposed that he had seen both the driver at the time of incident. He deposed that he did not receive any major injury.
6. PW2/Sarita W/o Bharat has deposed that on 08.08.2016, he was working in Meghna beauty parlour at Green Park and her duty hours were from 10:30 AM to 08:30 PM. She deposed that on the day of incident, she was going Green Park along with her husband namely Bharat Kumar on motorcycle for her work. When they were going from Netaji Nagar via Sarojini Nagar, at about 10:15 AM, I- Block crossing of Sarojini Nagar, then at the same time two TSR which were chained together were coming from right hand side of ring road and the said TSRs were coming at a very fast speed. She deposed that her husband stopped the motorcycle on the right side of I-Block crossing. After that, the second TSR which was behind, got disbalanced and fell on the motorcycle on the left-hand side. Then she got injured as the TSR hit and fell on her left leg ankle due to which the motorcycle also fell on the road. She deposed that her husband apprehended both the driver of TSR and their names were revealed as Imran and Israr. Imran was driving the TSR which fell on the motorcycle and Israr was driving the another TSR. She deposed that her husband called at 100 number, PCR van came and were taken to AIIMS, Trauma Centre along with her husband. The witness has correctly the vehicle and accused in the Court. During cross examination, she stated that she does not know about the distance of office from her home. She used to go regularly with her relative Bharat Kumar FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.6 of 27 (who is now my husband) to work. She stated that she was wearing helmet on the day of incident. Both the TSRs were coming from right hand side when they were near I-Block crossing, Sarojini Nagar and stopped the motorcycle. She has deposed that both the TSRs were driven by the driver and there were no passengers in the said TSR. The second TSR got disbalanced and rolled over.
7. PW3/Sammu Beg has deposed that he was the registered owner of the offending vehicle i.e. TSR bearing registration no.
DLIRS 2747 and on 08.08.2016, he received information regarding accident of TSR. Thereafter, he went to PS Sarojini Nagar and received notice u/s 133 MV Act and in response that reply, he told to the police that he had engaged Israr Khan for driving the same on rent for Rs.200/- per day. The witness has correctly identified the accused in the Court.
8. PW4/retired SI Ombir Singh has deposed that on 08.08.2016, DD No.12A was marked to him regarding an accident and he along with Ct. Sandeep left for the spot i.e. I Block crossing Sarojini Nagar, New Delhi where they found two TSRs attached with one cycle tyre (TSR No. DL1RS 2747 at front and TSR no. DL 1RP 6838 at back) and also one motorcycle bearing registration no. DL 3SCH 4857. however, no injured was found at the spot. He deposed that in the meantime, he received DD Number 22B regarding an MLC from the AIIMS Trauma Centre, therefore, he left the Trauma Centre and Ct. Sandeep remained at FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.7 of 27 the spot. In the hospital, he found the injured Sarita (undergone treatment) and complainant Bharat Kumar where he recorded the statement of complainant Bharat Kumar and prepared rukka. Thereafter, he returned back to the spot and handed over the rukka to the constable Sandeep for registration of FIR. Thereafter, he left for PS and got the FIR registered and returned back to the spot and handed over to him the copy of FIR and original rukka. He deposed that during investigation, he prepared the site plan at the instance of complainant Bharat Kumar and thereafter, seized the alleged TSRs and the motorcycle. He deposed that he also got the vehicles mechanically inspected. He deposed that he served one notice under Section 133 M V Act to the registered owner namely Sammu Beg of TSR No.DL1RS 2747, as per reply of the owner, the TSR was driven by accused namely Israr at the relevant time. Thereafter, he arrested the accused, conducted the personal search of the accused and also seized the driving license and badge of the accused. He deposed that he seized the documents of the TSR no. DL1RS 2747. He deposed that during investigation, he obtained the result of MLC no.576572 of injured Sarita which was opined as grievous in nature. During investigation, he recorded the statement of witnesses and after completion of investigation, he filed the charge sheet as per law. The witness has correctly identified the accused and the case property.
9. PW5/ASI Sandeep has deposed that on 08.08.2016, a DD No.12A was marked to him for investigation regarding an accident and accordingly, he along with the IO went to the spot i.e. I Block FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.8 of 27 Crossing Sarojini Nagar, New Delhi where they saw two TSR vehicles bound together with one cycle tyre and one motorcycle. The accused person and the driver of the other TSR were also present at the spot. He deposed that he does not remember the registration number of the two TSRs and the motorcycle. The injured person was already shifted to the hospital by PCR vehicle. IO left for the PS and returned to the spot and handed over original tehrir to him and he left the spot to get the FIR registered, after getting the FIR registered, he returned to the spot and handed over the copy of FIR and original tehrir to the IO. The IO seized the case property i.e. the vehicles involved in an accident and also seized the DL and badge pertaining to accused. He deposed that IO seized the documents i.e. RC, permit, fitness certificate, insurance policy pertaining to TSR No. DL 1RS 2747 and thereafter, arrested the accused, however, the accused was released on police bail. He deposed that his statement was recorded by IO. The witness has correctly identified the accused and the case property in the Court. During cross examination, he deposed that the intimation regarding the said incident was received from the DO at around 10:00 to 10:30 AM. He stated that when they reached at the spot, the auto drivers of two TSRs and few public persons, 2 to 3 in number were present. The said public persons were the eye witness to the incident and narrated the incident to the IO. The IO did not record the statement under Section 161 Cr.PC. of those public persons. He deposed that he does not know whether the bike rider and the pillion rider were FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.9 of 27 wearing a helmet. Rest of the suggestion has been denied by the witness.
STATEMENT OF THE ACCUSED AND DEFENCE EVIDENCE
10. Thereafter, before the start of defence evidence in order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against him, statement of accused Israr was recorded on 04.01.2025, without oath under section 313 CrPC, wherein he stated that he is innocent and have falsely been implicated in the present case and the prosecution witnesses are deposing falsely as they are interested witnesses. Pursuant thereto, the accused stated that he was not driving negligently rather the complainant was negligent in his act as he had come suddenly on the main road. He further stated that he does not wish to lead defence evidence.
ARGUMENTS
11. I have heard the Ld. APP for the State and Ld. Counsel for the accused persons at length. I have also given my thoughtful consideration to the material appearing on record.
12. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.10 of 27 disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused persons be punished for the said offences.
13. Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. An argument has been made that none of the prosecution witness has deposed regarding the manner of rashness or negligence of the accused and rather it has been argued that the complainant was negligent in his act as he had suddenly come on the road at a high speed. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused persons be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE
14. In order to prove the guilt of the accused the prosecution is required to prove the following ingredients as mentioned U/s 279/338 IPC : -
(i) That the offending vehicle was being driven by the accused in a rash and negligent manner at the relevant time.
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(ii) That due to the rashness/ negligence of the accused the incident actually took place.
(iii) Grievous hurt was caused to the victim as a result of the aforesaid rashness/negligence of the accused.
15. Thus, the gravamen of the offences under Section 279/338 IPC is the act of the accused done with "negligence". Before proceeding further, let us discuss the meaning of the expression "rash" and "negligent". These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
16. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the landmark case of "S.N. Hussain v. State of Andhra Pradesh", AIR 1972 SC 685 as under:
"Criminal negligence on the other hand, 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 circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.12 of 27 circumstances of each case."
17. However, the ambit of these terms has now been settled by judicial pronouncements of superior Courts. The Hon'ble Apex Court in the case of Rathnashalvan vs. State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-:
"7. .... 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 the amount of care and circumspection is 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. As noted above, "rashness" consists in hazarding a dangerous or FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.13 of 27 wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, 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."
18. Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal vs. CBI (2014) 6 SCC 173. The standard of negligence was discussed in the said case, by observing, inter alia, as under: -
"58. In the case of "negligence" the courts have favoured a meaning which implies a 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 which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.14 of 27 guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection."
19. Thus, negligence means lack of reasonable care that a person placed in the fact situation ought to take, in order to avoid injuries. Needless to state in a criminal law, the burden of proof is beyond reasonable doubt. The presumption of the innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence is the present case is to be weighed in view of the above legal standards.
APPRECIATION OF EVIDENCE
20. In order to prove its case, the prosecution is required to prove the above mentioned three ingredients of the offence u/s 279/338 IPC. Before appreciating the evidence, brought on record by the prosecution, a reference be made to the law of appreciating FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.15 of 27 evidence of the witnesses. The Hon'ble Delhi High Court in case titled as Satish Bombaiya vs. State, 1991 JCC 6147, had observed:
-
"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, FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.16 of 27 however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
21. To prove the first ingredient, the prosecution has relied upon the testimonies of PW-1 Bharat Kumar, PW-2 Sarita and PW3 Sammu Beg. The PW 3 who is the owner of the offending vehicle has deposed that the accused Israr used to drive the said Auto bearing no. DL 1 RS 2747 (primary vehicle) during the period when the incident in question took place. Further, the PW1 and PW2 have deposed that the accused Israr was driving the auto bearing no. DL 1 RS 2747 (primary vehicle) and was towing another auto bearing no. DL 1 RP 6838 (secondary vehicle). Both the witnesses have deposed that the auto which was being towed (secondary vehicle) was being controlled by some other person. In view of the consistent version of the PW's it is established that the primary vehicle was being driven by the accused at the time of the incident. However, it is also established that the vehicle which was involved in the said accident i.e., the secondary vehicle was being controlled by someone else.
22. Further, it is not in dispute that the said accident took place due to which victim namely Sarita received grievous injuries. However, in order to prove the guilt of the accused, the prosecution needs to establish that the said accident was a result of rashness or negligence of the accused. The PW1 has deposed that FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.17 of 27 he saw accused driving the primary vehicle in a high speed hence he stopped his motorcycle, however, the secondary vehicle became disbalanced because of the high speed and had "hit" against his motorcycle due to which the pillion rider sustained grievous injuries. The PW 2 has also deposed that the primary vehicle was being driven at a high speed by the accused due to which the secondary vehicle had "fell" upon the motorcycle and she sustained injuries. Ld. Counsel for the accused had argued that the case of the prosecution solely relies upon the allegation that the accused was driving at a high speed which is not sufficient to show the negligence or rashness of the accused. It is pertinent to note that, both the eye witnesses have deposed that the primary vehicle was being driven by the accused at a high speed. No other allegation of negligence or rashness has been levelled apart from high speed. It is a well settled law that merely high speed does not ipso facto constitute rashness or negligence for the purpose of section 279 IPC. The Hon'ble High court of Delhi in Jaspriya Bhasin vs The State (Nct Of Delhi) & Ors CRL.M.C. 6402/2019 & CRL.M.A. 42481/2019 has held that :-
"This Court as well has time and again taken the view that the allegation of offending vehicle being driven in a high speed/fast manner does not ipso facto establish commission of a rash and negligent act for the purposes of sections 279/304 A IPC."
23.Also, it has been held by the Hon'ble Supreme Court of India in State of Karnataka v. Satish (1998)8SCC493 that: -
FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.18 of 27 "4. Merely because the truck was being driven at a 'high speed' does not bespeak of either 'negligence' or 'rashness' by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by 'high speed'. 'High speed' is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by 'high speed' in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved.
Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of 'rashness' or 'negligence' could be drawn by invoking the maxim 'res ipsa loquitur'. ..."
24. It has also been observed by the Hon'ble High Court of Delhi in case titled as Kishore Chand Joshi vs. State 2018 SCC OnLine Del 12337 that:
"17. A witness can depose as to the manner of driving or speed at which the vehicle was being driven but not render an opinion on "rash and negligent". High speed by itself may not in each case be sufficient to hold that a driver is rash or negligent. Speed alone is not the criterion for deciding the rashness or negligence on the part of the driver."
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25. Therefore, in view of the settled law, it is clear that mere allegation of the offending vehicle being driven at a high speed alone, would not suffice to draw an inference of act of rashness or negligence by the accused. Specific and cogent evidence has to be led by the prosecution in order to drive home this point by establishing the manner in which the offending vehicle was being driven, which is missing in the present case. No other attending circumstances are either apparent from record or from testimonies of eye witness and other formal witnesses in the case, as would necessarily point to negligence of accused being a logical conclusion rather than it being proved by providing an outright demonstration thereof. Hence, it is clear that only high speed does not suffice to constitute the element of rashness or negligence for the purpose of IPC. The prosecution has also not been able to show any surrounding circumstance to show the rashness or negligence on the part of the accused.
26. Further, Ld. Counsel for the accused had argued that there is a contradiction in the testimony of the eye witnesses as PW1 has deposed that the secondary vehicle had "hit" against the motorcycle while the PW2 has deposed that the secondary vehicle had "fell" upon the motorcycle. He has argued that in a case related to accident, this difference presumes importance as the outcome of hitting and falling are different. The argument of the counsel holds merit in view of this court as there is a huge difference if a vehicle hits another vehicle and if it falls upon the FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.20 of 27 other vehicle hence the two terms cannot be used interchangeably. Moreover, if one vehicle falls upon the other, it will produce a different impact from that received from hitting. The police officials, i.e., PW4 and PW5 have deposed that when they reached the spot, they found the autos standing which were chained together. They have not deposed regarding the auto being toppled which could suggest that the secondary vehicle had "fell" upon the victim. Hence, the testimony of the eye witnesses is not corroborative and hence suffers with ambiguity.
27. Moreover, the PW1 has deposed that he had stopped his motorcycle at the crossing as he saw the auto (primary vehicle) coming at a high speed. The PW2 has also deposed that the motorcycle was stopped I the right side corner of the I Block Crossing. The site plan PW1/A demarcates the spot of accident as point A which is on the left corner before the crossing of the roads and suggests that the Primary vehicle was being driven on the correct side as it was going from Ring Road to Chanakya Puri. The PWs have deposed that they were going to Green Park Via Netaji Nagar, however it has not been clarified as to which road was to be taken by them. Moreover, photographs of the vehicles and the mechanical inspection reports show that the complainant's vehicle was damaged from behind. However, it could not be clarified by the prosecution as to how a vehicle which was coming from the side of Netaji Nagar and was stopped before the crossing was hit from backside from a vehicle which was going from Ring Road to Chanakyapuri as both the roads are perpendicular to each FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.21 of 27 other. Hence, the site plan is not corroborative to the testimony of PW1and is not sufficient to show the rashness or negligence of the accused.
28. Further, it is settled proposition of law that the question as to whether the offending vehicle was being driven in rash or negligent manner has to be gathered from the surrounding circumstances. In the case titled as Abdul Subhan vs State (NCT of Delhi)" 2006 (4) LRC 472 (Del), it was held by the Hon'ble High Court of Delhi that, "The burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favor of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitor"." It was further observed, "As a rule, photographs ought to be taken not only of the vehicle involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerned by courts. The prevalent weather conditions must be noted by the investigating officer. This would go on to establish FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.22 of 27 as to whether the road was slippery due to rain;
whether there was poor visibility due to fog or mist etc. Furthermore, the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case.......Proper investigation of such accident would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because no criminal court would and ought not convict any person merely on the basis of conjectures, assumptions, probabilities, all elements of subjectivity need to be eliminated."
29. It is settled proposition of law that the question as to whether the offending vehicle was being driven in rash or negligent manner has to be gathered from the surrounding circumstances. In this regard it would be relevant to state in here the observations made by Hon'ble Apex Court in Ravi Kapoor v. State of Rajasthan Crl. Appeal No.1838 of 2009:
"... 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 FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.23 of 27 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 happens 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.
... 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 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."
FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.24 of 27
30. However, in the present case the prosecution has failed to prove that the accused was driving the vehicle in a rash and negligent manner. Admittedly, the only eye witness who have been cited are the victims and cannot be said to be independent witnesses on behalf of the prosecution which can prove their case. The accident in question evidently appears to have occurred at a public place and it cannot be ruled out that public persons were not at the spot after the collision. However, no such person has been inquired/ examined during the entire course of investigation, let alone, having been made as a witness in the case. 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. In the instant case, the absence of independent witness of the accident in question further raises suspicion about the genuineness of the allegations and the actual manner of occurrence of the accident.
31. In a criminal trial, the burden is always on the prosecution to establish its case against the accused beyond the shadow of reasonable doubt. For that, positive and credible evidence has to be led. Mere suspicion, howsoever strong it might be, cannot replace the standard of proof required to establish guilt of a person for a criminal offence. In the present case, the eyewitnesses have not deposed about the manner of rashness or negligence of the FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.25 of 27 accused, even the IO has not stated about any prevailing circumstances which could hint towards the rashness or negligence of the accused. Also, The PW1 and PW2 have deposed that the secondary vehicle was being driven by some other person however, the said person was never made to join the investigation and interestingly was never even made a witness. Also, the IO failed to take photographs of the spot or the nearby area to show the circumstances in which the said accident took place. It has been the contention of the accused that the said accident was not a result of his negligence rather it occurred due to the negligence of the complainant as they had suddenly come on the main road. Even the site plan supports the version of the accused. The defence has been able to raise a suspicion over the case of the prosecution and hence, in absence of any other public witness, or any other documentary proof the prosecution has failed to prove its case beyond reasonable doubt.
CONCLUSION
32. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.26 of 27 story and any such doubt in the prosecution case entitles the accused to acquittal.
33. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the ingredients of the offence punishable under section 279/338 of IPC beyond reasonable doubt. The prosecution has failed to prove that the accused was driving the offending vehicle in a rash and negligent manner and that the victim sustained grievous injuries as a result of rash and negligent act of the accused. There is no evidence sufficient to link the accused with the crime charged against him.
34. Resultantly, the accused, Ishrar S/o Abdul Latif is hereby found not guilty and is hereby acquitted of the offence under Section 279/338 of IPC.
Announced in the open court on 24.01.2025 in the presence of the accused persons.
(VAIBHAV KUMAR) JMFC-05, Patiala House Courts, New Delhi District.
24.01.2025 Note:- This judgment contains 27 pages and each page has been signed by me.
FIR No.364/2016, PS Sarojini Nagar State vs Israr Page No.27 of 27