Delhi District Court
State vs Neetesh Kushwah on 2 December, 2024
IN THE COURT OF SH. ARIDAMAN SINGH CHEEMA
JUDICIAL MAGISTRATE FIRST CLASS-05, SAKET COURTS,
DELHI
DLSE020160232018
Cr. Case No. 6701/2018
FIR No. -: 565/2016
Police Station -: Sarita Vihar
Section(s) -: 279/338/304A IPC
In the matter of -
STATE
VS.
NEETESH KHUSHWAH
1. Name of Complainant :- SI Mukesh Kumar,
No. D-5473 PS
Sarita Vihar, Delhi.
2. Name of Accused :- Neetesh Khushwah
S/o Sh. Inder Lal
3. Offence charged under section :- 279/338/304A IPC
4. Plea of Accused :- NOT GUILTY.
5. Date of Commission of offence :- 11.12.2016
6. Date of Filing of case :- 15.05.2018
7. State Representative :- Sh. Shubham, Ld.
APP for the State.
Digitally
8. Accused Representative Sh. Ashok Kumar signed by
Aridaman
Aridaman singh
Sherawat, Ld. singh cheema
cheema Date:
2024.12.02
Counsel for
16:10:39
+0530
accused.
FIR No. 565/2016 State vs. Neetesh Khushwah Page 1 of 20
9. Date of Reserving Order :- 14.11.2024
10. Date of Pronouncement :- 02.12.2024
11. Final Order :- Acquitted
JUDGMENT
1. The case of prosecution in brief is that on 11.12.2016 at about 04:00PM in front of Jasola Metro Station, on Mathura Road, Sarita Vihar, New Delhi, accused was driving vehicle bearing no. DL2CAF0284 in such a rash and negligent manner so as to endanger human life and safety and while doing so he hit against three persons including two children who were crossing the road at aforesaid date and time and caused death of one child, grievious injury to another child and causing death of another and thereby committed an offence punishable u/s 279/338/304A of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which the present FIR was lodged in PS Sarita Vihar.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statement of witnesses were recorded under section 161 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC). Relevant record was collected. Final report under section 173 CrPC, was prepared against the accused and chargesheet was presented in the court on Aridaman 15.05.2018. Cognizance of the offence was taken vide order dated singh cheema Digitally signed by on 15.05.2018. Copy of charge-sheet alongwith documents were Aridaman singh cheema Date: 2024.12.02 16:10:44 +0530 supplied to the accused u/s 207 Cr.PC.
FIR No. 565/2016 State vs. Neetesh Khushwah Page 2 of 203. On finding a prima facie case against the Accused, charge under section 279/338/304A IPC was framed against him on 30.03.2019 for which the he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial for the offence u/s 279/338/304A IPC, prosecution led the following evidence against the Accused and examined 5 witnesses to prove its case beyond reasonable doubt: -
5. PW Sh. Manoj Kumar has deposed that on he used to run small stall of chole kulche near Jasola Metro station. On 11.12.2016 at about 4.00 pm he was present at his stall when one silver colour car hit to two children and the children were badly injured in the accident. He could not identify the driver of said car as on the aforesaid date and time He had a glimps of the accused driver. He could not recall his face. He does not remember the other details of offending car. 5 photographs of offending car annexed with the judicial file were shown to the witness and after careful perusal of the photographs, witness stated that the offending car was of similar description.
Ld. APP sought permission to cross examine the witness on the point of identity. It was heard and allowed. In his cross- examination on behalf of the State he admitted that police Aridaman singh examined him regarding the accident. Police asked him to sign cheema Digitally signed certain documents. At that stage, witness was asked to point the by Aridaman singh cheema Date: 2024.12.02 16:10:49 +0530 document from the judicial file which was signed by him at the FIR No. 565/2016 State vs. Neetesh Khushwah Page 3 of 20 request of police. (after checking the complete file witness failed to point out any document which bears his signature). He denied the suggestion that he had seen the manner in which the offending vehicle was being driven at the time of accident. He denied the suggestion that he was intentionally not telling the truth being won over by the accused.
At that stage, witness was confronted with his statement dt. 12.12.2016 which is Ex PW1/A. (witness was confronted with his statement from point A to A-1 and B to B-1). He denied the suggestion that he was intentionally not disclosing the complete facts for the reason stated above.
In his cross-examination on behalf of the accused he admitted that police did not record any statement in his presence. He denied the suggestion that he was deposing falsely.
6. PW SI Mukesh Kumar has deposed that on 11.12.2016, he was posted as SI at PS Sarit Vihar and on that day he received DD no.18-A regarding the present accident. Thereafter, he reached the spot i.e. Gate no.1, Jasola Apollo Metro Station but no injured, eye witness or accused was found present there. Upon enquiry, he came to know that two injured children were taken to hospital by PCR Van. In the meanwhile, he received information regarding the MLC of injured Children vide DD no.20-A through Ct. Ashish. Thereafter, he along with Ct. Ashish went to Apollo hospital where Aridaman singh cheema two children were found admitted. One of the injured children, Digitally signed by Aridaman singh cheema who was aged between 10-15 years, was declared brought dead Date: 2024.12.02 16:10:53 +0530 FIR No. 565/2016 State vs. Neetesh Khushwah Page 4 of 20 and another children, who was aged between 08-10 years was under treatment and declared 'unfit' for statement. He made efforts to find any eye witness but none was found present there. He obtained the copy of MLC and returned to the spot. He again made efforts to find any eye witness but none was found present there. Thereafter, he prepared rukka which is Ex.PW1/A and got the FIR registered through Ct. Ashish. After registration of FIR further investigation was marked to Sl Vinod. After sometime, IO/SI Vinod reached the spot and after inspecting the spot he prepared site plan at his instance which is Ex.PW1/B. In his cross-examination he stated that he received an information that in front of Jasola Metro Station, two children met with an accident. The fact was not stated that where the vehicle standing where the children were lying after accident. He denied the suggestion that the site plan was made without having the actual information and he further denied the suggestion that the site plan was made without having the actual position from the vehicle and the person injured. He denied the suggestion that he was deposing falsely to support the prosecution case.
7. PW Sh. Sanjeev deposed that on 11.12.2016 at around 4 p.m. He along with his friend Badal Ali was crossing Mathura Road when one car which was coming from the side of Badarpur and was driven by its driver at a very high speed, hit him and his Digitally signed by Aridaman Aridaman singh friend. After the accident, he became unconscious. During singh cheema cheema Date:
2024.12.02 16:11:06 investigation police recorded his statement.
+0530 FIR No. 565/2016 State vs. Neetesh Khushwah Page 5 of 20 He was cross-examined u/s 311 Cr.PC on 25.12.2023 and stated that he does not know whether there was any zebra crossing at the spot of the incident. He could not say the exact speed of the offending vehicle. He had not seen at what speed offending vehicle was coming. He had not seen the particulars of the vehicle and the driver that had hit us. He immediately after the accident became unconscious. He denied the suggestion that accident had occurred due to the negligence of the injured and the deceased persons who was crossing the road illegally/rashly when there was no zebra crossing at the spot.
8. PW Ct. Ashish deposed that on 11.12.2016, he was posted at PS Sarita Vihar as Constable. On that day, after receiving DD No. 20A, he went to Mathura road where he met SI Mukesh. Thereafter, they went to Apollo hospital. Thereafter, IO/SI Mukesh collected MLC of two unknown persons. Thereafter, he prepared rukka and handed over the same to me for registration of FIR. Thereafter, he came to the PS and handed over the rukka to duty officer and got the FIR registered. Thereafter, he came back to the spot of the accident and handed over the copy of FIR and original rukka to SI Mukesh. Thereafter, SI Mukesh prepared the site plan of the spot. Thereafter, the dead body of the unknown persons were collected and thereafter, the same was handed over to AIIMS Motuary for conducting postmortem. Thereafter, IO of the case Aridaman recorded my statement. singh cheema Digitally signed by Aridaman singh cheema In his cross-examination he stated that there was no zebra Date: 2024.12.02 16:11:10 +0530 crossing or traffic light at the spot of the incident. He admitted that FIR No. 565/2016 State vs. Neetesh Khushwah Page 6 of 20 there was a railing at the middle of the road at the spot of the incident. He admitted that there was a gap between the railing and passersby used to cross by the said gap. He admitted that both the roads which was one of the descending from the flyover are merging on the point of accident. He admitted that IO did not record the statement of any public witness in his presence at the spot. He does not know that there was over crossing bridge near the spot. He denied the suggestion that he had never visited the spot of the incident that is why he had not seen the aforesaid foot over bridge. He denied the suggestion that he was a planted witness. He denied the suggestion that he was deposing falsely at the behest of the IO. He denied the suggestion that all the documents of investigation prepared wrongly to implicated the innocent alleged accused persons.
9. PW SI Vinod Kumar. He deposed that on 11.12.2016, he was posted at PS Sarita Vihar as SI. On that day, the investigation of the present case was marked to him. Thereafter, he alongwith SI Mukesh reached the spot, i.e., infront of Jasola Apollo metro station. Thereafter, at the instance of SI Mukesh, he prepared site plan of the spot which is Ex. PW4/A. The injured persons were already shifted to Apollo hospital. Thereafter, information was received with regard to death of one of the injured namely Badal Ali. Thereafter, he went to Apollo hospital and collected the dead body of the deceased and thereafter handed over the dead body to Digitally signed by Aridaman Aridaman singh singh cheema AIIMS mortuary. cheema Date:
2024.12.02 16:11:14 +0530 FIR No. 565/2016 State vs. Neetesh Khushwah Page 7 of 20 Thereafter, on 12.12.2016, he obtained the RC details of the offending vehicle from the concerned authority. Thereafter, he issued notice u/s 133 MV Act to the RC owner which is Ex. PW4/B. Based on the reply received, he issued notice u/s 133 MV Act to Nitish Khushwa who was having possession of the offending vehicle. The notice is Ex. PW4/C. Thereafter, they came to the PS alongwith accused driver Nitish and the offending vehicle bearing registration No. DL 2C AF 0284. Thereafter, he seized the offending vehicle vide seizure memo Ex. PW4/D. He seized the DL of the accused vide Ex. PW4/E and documents of the vehicle vide seizure memo Ex. PW4/F and Ex. PW4/G. Thereafter, he took the accused to the spot of the incident and prepared pointing out memo at his instance which is Ex. PW4/H. Thereafter, he formally arrested the accused vide arrest memo Ex. PW4/I and recorded his disclosure statement vide Ex. PW4/J. Thereafter, he gave a request for conducting the postmortem of the deceased after the dead body was got identified by the relatives of the deceased. After the postmortem the dead body was handed over to the relatives of the deceased. He also conducted his personal search vide Ex. PW4/K. Thereafter, he recorded the statement of the other witness namely Sanjeev Giri. Thereafter, he collected the MLCs and the opinion.
During the investigation, he moved application for conducting the TIP of accused and the same was refused by accused. He collected the PM report. He also got verified the documents of the offending vehicle from the concerned authority. Aridaman singh cheema He recorded the statement of witnesses. After completion of Digitally signed by Aridaman singh cheema Date: 2024.12.02 16:11:19 +0530 FIR No. 565/2016 State vs. Neetesh Khushwah Page 8 of 20 investigation, he prepared chargesheet and filed the same before the Hon'ble Court. Accused was present in the court today and correctly identified by the witness. 05 photographs of the offending vehicle annexed with the chargesheet were shown to the witness and the witness correctly identified the same. The photographs are Ex. P1 (Colly).
In his cross-examination on behalf of the accused he admitted that there was no zebra crossing at the spot of the incident. He admitted that there was railing at the middle of the road at the spot of the incident. He admitted that people used to illegally cross the road through the cutting/gap in the railing. He admitted that at the spot of the incident there is merger of traffic coming from the flyover and the road below the flyover. He admitted that there is a footover bridge at the spot of the incident. He denied the suggestion that the accident had occurred due to the negligence of the deceased and the injured and he had falsely implicated the accused in the present case in order to get compensation for the injured persons. He had not collected the call details with regard to the call made by the accused as mentioned in his disclosure statement from his mobile number 8373985801. He admitted that he had not placed on record any qualification record of the mechanical vehicle inspector. He denied the suggestion that a false mechanical inspection report has been procured by him. He denied the suggestion that the accused had been falsely implicated in the present case and improper investigation had been done and Digitally signed by improper record has been prepared to falsely implicate the accused Aridaman singh Aridaman singh cheema cheema Date:
2024.12.02 16:11:25 +0530 FIR No. 565/2016 State vs. Neetesh Khushwah Page 9 of 20 in the present case. He denied the suggestion that he had not done a fair investigation in the present case and he was deposing falsely.
10. The record transpires that during the course of the trial, the accused admitted (without admitting the correctness of allegations contained therein) the present FIR (Ex.A1), DD no. 18A and 20A both 11.12.2016 PS Sarita Vihar (Ex.A2) (colly), arrest memo (ex.A3) and personal search memo (Ex.A4), post mortem report no. 1657-16 dated 13.12.2016 (Ex.A5), MLC No. 865 alongwith brought dead certificate and MLC No. 864 dated 11.12.2016 (Ex.A6) (colly), mechanical inspection report of offending vehicle (Ex.A7) and CDR details of mobile of accused alongwith certificate u/s 65-B of IEA (Ex.A11) and accordingly witness mentioned at serial no. 4, 11, 12, 13, 14, 15 and 17 were dropped from the list of witnesses.
11. After completion of prosecution evidence all the incriminating material were put to accused and his statement was recorded U/s 313 Cr.P.C. Accused claimed innocence and stated that he has not committed any offence and has been falsely implicated by police officials. He was driving the vehicle within speed limit. However, two children came running in front of his car suddenly on a moving road and while he tried to save them while applying all brakes, the accident took place. While the Digitally incident in unfortunate, he was not driving the vehicle rashly or signed by Aridaman Aridaman singh singh cheema cheema Date:
2024.12.02 16:11:29 +0530 FIR No. 565/2016 State vs. Neetesh Khushwah Page 10 of 20 negligently. The witnesses have deposed against him as they were interested witnesses. Accused chose to lead DE.
12. DW-1 Neetesh Khushwah, deposed that on the date of the accident (exact date he does not remember on account of lapse of time), he was driving his esteem car bearing No. DL 2C AF 0284, and when he reached below footover bridge in front of Jasola Apollo metro station, suddenly two children, who were holding hands suddenly came in front of his car after crossing the road from the opposite side. He applied all force and applied brakes. However, despite his full effort, the said children got hit and one child fell on the side and one in front. He got out of the car and he called at 100 and 102 number. Someone picked up the phone at 102 number and he informed them of the incident. He waited for some time for the ambulance, however, when it did not arrive and a lot of public persons had gathered at the spot, he left, as guided by few public persons gathered there.
He was driving his car in the first lane (from the right side and his speed was between 30-40 kmph). He was not driving rashly or negligently and the children suddenly came in front of his car. That day, he had brought 04 photographs which are Mark DW1/1 (Colly) of the spot where the incident took place in which it is clear that there is no designated space for crossing the road at the place where the accident took place and that actually railing is broken at some places, through which people cross the road Digitally signed by illegally. Despite there being a footover bridge at the exact spot, Aridaman Aridaman singh singh cheema Date:
cheema 2024.12.02 16:11:35 the people cross on the running road. The children, who got hit by +0530 FIR No. 565/2016 State vs. Neetesh Khushwah Page 11 of 20 his car had also crossed the road illeglly. The accident did not take place due to his fault.
In his cross-examination on behalf of the State he denied the suggestion that he was driving his car in rash and negligent manner and at such a high speed and this is the reason why despite his full efforts, he could not apply the brakes on time. The photographs which he brought that day to the court were clicked by his phone for a month ago and not at or around the date when the accident took place. He denied the suggestion that he was deposing falsely
13. DW-2 Sh. Amar Singh, deposed that on approximately 11.12.2016, he was driving his school bus bearing registration No. DL 1PC 3573 from Badarpur to the school which is in RK Puram.
At around 12.00 Noon, when he crossed the Sarita Vihar flyover, he saw that two children suddenly came in front of an esteem car, which was 4/5 cars ahead of him, after crossing the road. The driver of the esteem car applied brakes, but it hit the children. Since, he was driving a bus and was in an elevated position, he was able to see the incident. In his opinion having seen the accident, the accident took place because of the children coming suddenly in front of the vehicle. The vehicle/esteem car was not being driven in a high speed. The grill on the road is also wrongly and incorrectly broken. He had got down at the spot of incident Aridaman singh and also met the accused at the spot. cheema Digitally signed by Aridaman singh cheema Date: 2024.12.02 16:11:44 +0530 FIR No. 565/2016 State vs. Neetesh Khushwah Page 12 of 20 In his cross-examination he denied the suggestion that he was deposing falsely only to protect the accused.
ARGUMENTS AND ANALYSIS
14. I have heard the arguments of Ld. APP for the State and the accused and perused the records carefully. Ld. APP for the State has stated that the prosecution witnesses have supported the case of prosecution and the accused is liable to be convicted.
15. Per contra, Ld. Counsel for the accused has stated that the eye witnesses PW Manoj Kumar had turned hostile and had not identified the accused and PW Sanjeev Giri had also not identified the accused. The defence witnesses were examined and DW-2 Amar Singh have categorically stated that the accused had applied breaks but two children suddenly came in front of Esteem Car and DW-2 had stated that the Esteem car was not being driven at a high speed. Ld. Counsel for the accused had further stated that there was no zebra crossing at the spot of accident whereas there was an overbridge present there as per the site plan Ex.PW-4/A. He has further stated that the eye witnesses have not mentioned anything about rash and negligent manner apart from a bald statement by PW-2.
16. To bring home the guilt of rash and negligent driving to the Digitally signed by Aridaman Aridaman singh singh cheema cheema Date:
accused, three things need to be proved by the prosecution that too 2024.12.02 16:11:48 +0530 FIR No. 565/2016 State vs. Neetesh Khushwah Page 13 of 20 beyond any reasonable doubt. The three essential ingredients are as follows:-
1. That the accident actually took place.
2. That the accident took place due to rash and negligent driving.
3. That the accused was the person who was driving the vehicle at the relevant time.
17. Before proceeding further, let us discuss the meaning of the expressions "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.
18. 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 Digitally signed by Aridaman Aridaman singh singh cheema cheema Date:
regard to all the circumstance out of which the 2024.12.02 16:11:52 +0530 FIR No. 565/2016 State vs. Neetesh Khushwah Page 14 of 20 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 circumstances of each case".
19. Further it would be apt to quote another decision Hon'ble Apex Court in the case of Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra, (1965) 2 SCR 622 : AIR 1965 SC 1616 : (1965) 2 Cri LJ 550 wherein, after referring to a pre−independence judgment, the yardstick for proving the criminal negligence act under Section 304(A) of IPC is held to be such that it must be proximate and efficient cause without the intervetion of a third party. The relevant para no.3 is reproduced below:
"3. We may in this connection refer to Emperor v. Omkar Rampratap [(1902) IV Bom LR 679] where Sir Lawrence Jenkins had to interpret Section 304-A and observed as follows:
"To impose criminal liability under Section 304-A Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non."
This view has been generally followed by High Courts in India and is in our opinion the right view to take of the meaning of Section 304-A. It is not Digitally signed by necessary to refer to other decisions, for as we have Aridaman Aridaman singh cheema singh cheema Date:
2024.12.02 16:11:56 +0530 FIR No. 565/2016 State vs. Neetesh Khushwah Page 15 of 20 already said this view has been generally accepted. Therefore the mere fact that the fire would not have taken place if the appellant had not allowed burners to be put in the same room in which turpentine and varnish were stored, would not be enough to make him liable under Section 304-A, for the fire would not have taken place, with the result that seven persons were burnt to death, without the negligence of Hatim. The death in this case was therefore in our opinion not directly the result of a rash or negligent act on the part of the appellant and was not the proxinate and efficient cause without the intervention of another's negligence. The appellant must therefore be acquitted of the offence under Section 304-A." (Emphasis supplied)
20. In the case at hand, the PW Manoj Kumar had turned hostile and have not identified the accused in the court. Further, PW Sanjeev Giri in his cross-examination had stated that he cannot say about the exact speed of the offending vehicle. PW-4 SI Vinod Kumar has also admitted that there was no zebra crossing at the said spot. Further, perusal of the record reveals that photograph Mark DW1/1 (Colly) and site plan Ex.PW4/A which shows footover bridge and no zebra crossing. Even DW-2 Amar Singh had stated that two children suddenly came in front of an esteem car and the esteem car applied brakes but it hit the children. DW-2 had further stated that esteem car was not being driven in a high speed.
21. One of the main witness of the prosecution have turned Digitally signed by hostile in the present case. It is pertinent to note that under Indian Aridaman Aridaman singh singh cheema cheema Date:
2024.12.02 law, the evidence of hostile witnesses is not discarded completely. 16:12:00 +0530 FIR No. 565/2016 State vs. Neetesh Khushwah Page 16 of 20 The legal maxim, "falsus in uno falsus in omnibus" is not applicable in India. With respect to the evidentiary value of hostile witnesses, it was observed by the Apex Court in the case of Rohtash Kumar vs. State of Haryana (2013) 14 SCC 434, as under
-
"25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether.
The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof."
22. It was observed by the Hon'ble High court of Delhi in the case titled as "Vinod Kumar v. State" 2012(1) RCR (criminal) 567 as follows, "No evidence or any other material was placed on record by the prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner......................................., except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one". Aridaman singh cheema Digitally signed by Aridaman singh cheema Date: 2024.12.02 16:12:04 +0530 FIR No. 565/2016 State vs. Neetesh Khushwah Page 17 of 20
23. In the present case, the accused had called 100 no. and 102no. There was a footover bridge and no zebra crossing at the spot of the accident and IO had admitted in his cross-examination that there is no zebra crossing or designated place to cross the road. PW Manoj Kumar turned hostile and did not identify the accused. PW Sanjeev Giri stated that he cannot tell the exact speed of the offending vehicle. The mechanical inspection report Ex.PW-4/A mentions front bumper scratched. The zebra crossing or redlight had not been mentioned in the site plan Ex.PW4/A at the place of accident. As there was no red light or zebra crossing at the spot and the accused did not jump any red light and caused the accident. Further, DW-2 Amar has stated that two children came suddenly in front of the esteem car and the esteem car was not being driven at a high speed.
24. It is pertinent here to mention that the judgment of Hon'ble Supreme Court of India in case titled as Mahadeo Hari Lokare Vs. State of Maharashtra, (1972) 4 SCC 758 which states that if a person suddenly crosses road without taking a note of approaching vehicle, the driver however slowly he may be driving, may not be in a position to save the accident.
25. Furthermore, it has been held by Hon'ble Supreme Court in Dr. S.L Goswami Vs. State of Madhya Pradesh 197 SCC (Crl.) Digitally signed by Aridaman Aridaman singh singh cheema 258 that the accused persons are entitled to benefit of doubt where cheema Date:
2024.12.02 16:12:08 +0530 FIR No. 565/2016 State vs. Neetesh Khushwah Page 18 of 20 the onus of proving the ingredients of the offence is not discharged by the prosecution.
26. In the case at hand, there is no evidence on record to prove that the accused was driving in a rash and negligent manner, except the bald statement made by PW Sanjeev Giri. There is evidence on record that there was no designated place for crossing the road but there is a footover bridge as stated by PW-4. IO SI Vinod Kumar have admitted in his cross-examination that there was no designated place to cross the road at the spot of accident.
DW-2 Amar has stated that two children came suddenly in front of the esteem car and the esteem car was not being driven at a high speed.
27. Further, 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 story and any such doubt in the prosecution case entitles the accused to acquittal.
Digitally
signed by
Aridaman
Aridaman singh
singh cheema
cheema Date:
2024.12.02
16:12:12
+0530
FIR No. 565/2016 State vs. Neetesh Khushwah Page 19 of 20
28. In view of the above discussion and in light of above- mentioned case laws, the court is of the view that the prosecution has failed to prove that the car driver was driving in a rash and negligent manner or that the death of one child namely Badal Ali was caused due to the rash and negligent manner act of the accused. Though, one precious life has been lost in an accident, however, same cannot be ground for convicting the accused.
29. Therefore, in ultimate analysis as a result of trial, accused namely Neetesh Khushwah S/o Sh. Inder Lal is acquitted for the offences u/s 279/338/304A IPC.
Announced in open court on 02.12.2024 in the presence of the Accused.
Digitally
signed by
(ARIDAMAN SINGH CHEEMA) Aridaman
Aridaman singh
singh cheema
JMFC-05, South-East District,
cheema Date:
2024.12.02
16:12:16
+0530
Saket Courts, New Delhi
02.12.2024
The judgment contains 20 pages and each page have been digitally signed on each page by the undersigned.
(ARIDAMAN SINGH CHEEMA) Digitally
signed by
JMFC-05, South-East District, singh
cheema
Aridaman
Aridaman singh
cheema
Date:
Saket Courts, New Delhi 2024.12.02
16:12:20
+0530
02.12.2024
FIR No. 565/2016 State vs. Neetesh Khushwah Page 20 of 20