Delhi District Court
State vs Naveen Kumar on 16 October, 2024
IN THE COURT OF SH. UMESH KUMAR,
JUDICIAL MAGISTRATE FIRST CLASS -09,
SOUTH-EAST DISTRICT / SAKET COURTS, DELHI
Cr CASES 457/2015 90958/2016
STATE Vs. NAVEEN KUMAR
FIR NO. 284 /2015
PS (Lodhi Colony)
JUDGMENT
(a) C.N.R No. DLSE02-002462-2015
(b) Name of the Complainant Sharad Sharma
(c) Name of accused person Naveen Kumar S/o Sh. Prem Singh
R/o H. No. 284, Village Barwasini,
District, Sonipat, Haryana
(d) Offence charged U/s 279/304A IPC
(e) Date of commission of offence 22.08.2015
(f) Date of Institution 01.12.2015
(g) Plea of accused Accused pleaded not guilty and
claimed trial
(h) Order Reserved on 19.09.2024
(i) Date of judgment 16.10.2024
(j) Final Order Acquittal
BRIEF FACTS AND REASONS FOR DECISION:
1. The case of the prosecution is that on 22.08.2015 at about 08:20 P.M in front of Madarsa Lodhi Road Near Red Light, UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2024.10.16 18:07:47 +0530 FIR No.284/2015 State Vs. Naveen Kumar 1 of 24 PS Lodhi Colony within the jurisdiction of PS Lodhi Colony, accused Naveen Kumar was found driving bus bearing no. DL1PC-6494 from the Tughlak Road side on a public way in a rash and negligent manner in high speed so as to endanger human life and personal safety of others and thereby committed an offence punishable u/s 279 IPC. Further on the same date, time and place while driving the aforesaid vehicle accused hit against scooty bearing no. DL6SAQ-9255 and caused death of the scooterist Mr. Sadab Khan S/o Sehzad Khan, not amounting to culpable homicide and thereby accused committed an offence punishable u/s 304A IPC.
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offences on 01.12.2015, the accused was summoned on to face trial.
3. On the appearance, a copy of charge-sheet was supplied to the accused person in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, notice under Section 279/304-A IPC was framed against accused Naveen Kumar to which he pleaded not guilty and claimed trial.
UMESH Digitally signed by UMESH KUMAR KUMAR 18:07:53 +0530 Date: 2024.10.16 FIR No.284/2015 State Vs. Naveen Kumar 2 of 24 PS Lodhi Colony
4. The prosecution has examined Sh. Pandit Sharad Sharma as PW-1 who deposed that on 22.08.2015, he was going to his house from Jor Bagh on his Eterno Two Wheeler bearing Registration No. DL3SS-3793. He deposed that at about 8.20- 8.30 pm, he was standing at Madrasa red light and he saw that one cluster bus was going from Tughlak Road towards AIIMS and had hit one scooty. He further deposed that thereafter, the cluster bus had fled away from the spot. He further deposed that he did not know the registration number of the scooty. He further deposed that he saw the blood oozing out from the head of the injured and he was lying on the road. He further deposed that he chased the cluster bus and noted down the registration number of the bus bearing no. DL1P-6494, Route no. 548. He further deposed that the cluster bus was driven by the accused person namely Praveen. He further deposed that the accident took place due to the rash and negligent driving of the accused as he was driving the offending vehicle in high speed. He further deposed that after chasing the offending vehicle he returned to the place of incident. He further deposed that he found PCR Van at the spot and the injured had already been taken to the hospital. He stated that IO had recorded his statement Ex. PW1/A, at the spot bearing his signature at point A. He further deposed that on the same day, the police officials also came to his home and he had shown the place of incident to the police officials Digitally signed UMESH by UMESH KUMAR KUMAR 18:08:02 Date: 2024.10.16 FIR No.284/2015 State Vs. Naveen Kumar 3 of 24 +0530 PS Lodhi Colony who prepared the site plan on his instance. He further deposed that he can identify the offending vehicle if shown to him. He correctly identified the eight photographs of offending vehicle and two photographs of the vehicle involved in the accident, Ex. P-1, P-2 (colly). He correctly identified the accused present in the Court.
5. PW-1 was duly cross examined on behalf of Ld. counsel for accused wherein he deposed that he proceeded to mandir from Jor Bagh at about 7:30 PM. He admitted the suggestion of Ld. counsel for the accused that number of vehicles and buses were passing due to the green signal. He further deposed that he was standing on the left side of the red light and a number of vehicles were also standing at the right side of his vehicle. He further deposed that the offending vehicle was coming behind the scooty before the incident. He further deposed that he went to the place of incident and had seen the injured and thereafter, he chased the offending vehicle and noted down the No. of the offending vehicle at Safdarjung Airport stand which is about half kilometre away from the place of incident. He further deposed that the traffic signal was green on the road on which the cluster bus was going. He further deposed that he had not seen the driver when the cluster bus hit the scooty, however, he had seen the accused at the airport after the incident when he chased the bus and got it UMESH Digitally signed by UMESH KUMAR State Vs. Naveen Kumar KUMAR 18:08:07 +0530 Date: 2024.10.16 FIR No.284/2015 4 of 24 PS Lodhi Colony stopped. He further deposed that he had noted down the registration No. of the offending vehicle from the back side, however, he had not told the accused that his offending vehicle had caused the accident. He further deposed that he returned back to the spot within 10 to 12 minutes. He further deposed that he had not called on 100 number and that the police recorded his statement at his house/temple in the night at about 10 PM. He further deposed that after the day of incident, police never enquired him about the incident. He further deposed that IO had not prepared any documents in his presence except recording his statement. He further deposed that he had neither visited the police station nor the accused was shown to him in the police station. He denied the suggestion that he had not witnessed the incident and was deposing falsely.
6. The prosecution has examined Sh. Zulfikar Khan as PW-2 who deposed that on 22.08.2015 in the evening, he received a call from the PCR regarding the death of deceased Sadab Khan who was his maternal nephew. He deposed that in the night, he immediately went to the AIIMS Hospital and had identified the dead body of the deceased. He further deposed that IO recorded his statement in this regard. He further deposed that after the postmortem of dead body, the handing memo of the dead body was prepared in his presence UMESH Digitally signed by UMESH KUMAR KUMAR 18:08:13 +0530 Date: 2024.10.16 FIR No.284/2015 State Vs. Naveen Kumar 5 of 24 PS Lodhi Colony Ex.PW2/A bearing his signature at point A.
7. PW-2 was not cross examined on behalf of accused despite opportunity being given.
8. The prosecution has examined Sh. Amjad Ali as PW-3 who deposed that he is the authorized representative of the A.B Grain Spirits Private Limited qua the cluster bus orange colour bearing registration no. DL1PC-6494. He deposed that on 23.08.2015 in compliance of notice u/s 133 of M. V Act, he went to the police station alongwith the offending vehicle and accused Naveen Kumar and had submitted the document of the offending vehicle to the IO. He further deposed that IO had seized the offending vehicle as it was produced by him in the PS vide seizure memo Ex PW3/A bearing his signature at point A. He further deposed that the insurance certificate, fitness certificate, permit certificate and RC of the offending vehicle were also seized in his presence vide seizure memo Ex. PW3/B to Ex. PW3/E all bearing his signatures at point A. He further deposed that he had also handed over the duty memo of the accused Mark A to the IO and thereafter IO seized the same vide seizure memo Ex. PW3/F. He has correctly identified the offending vehicle in the photograph Ex. P-1 (colly).
UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2024.10.16 18:08:18 +0530 FIR No.284/2015 State Vs. Naveen Kumar 6 of 24 PS Lodhi Colony
9. PW-3 was not cross examined on behalf of accused despite opportunity being given.
10. The prosecution has examined Ct. Rohtash as PW-4 who deposed that on 22.08.2015 he was posted as a Constable in PS Lodhi Colony. He deposed that a call was received at 08:20/ 08:30 P.M in DO Room regarding accident on Madarsa Road. He deposed that he did not recall the DD Number and the same was marked to SI Devi Dayal Meena and he was telephonically informed by the DO regarding the same. He further deposed that he alongwith SI Devi Dayal Meena had gone to the spot i.e. Madarsa T- Point, Lodhi Road, where they were informed that the injured had already been taken to the AIIMS Trauma Center by the PCR. He further deposed that he did not recall the registration number of the said scooty. He further deposed that a helmet in a broken condition was also present on the said spot. He further deposed that one person Sharma was present on the spot who was the eye witness of the accident and he gave the written complaint to SI Devi Dayal Meena who prepared the Tehrir and handed over the Tehrir to him for getting the FIR registered. He further deposed that he went to the PS and handed over the Tehrir to the DO for getting the FIR Register and after the same was registered he went back to the spot along with the copy of the FIR and handed over the same to UMESH Digitally signed by UMESH KUMAR FIR No.284/2015 KUMAR 18:08:25 +0530 7 of 24 State Vs. Naveen Kumar Date: 2024.10.16 PS Lodhi Colony the IO S.I. Devi Dayal Meena. He further deposed that SI Devi Dayal Meena had gone to the hospital and he remained on the spot. He further deposed that after sometime, SI Devi Dayal Meena had come back to the spot and prepared the site plan Ex. PW4/A at the instance of the said person Sharma. He further deposed that IO then seized the accidental scooty vide seizure memo Ex. PW4/B bearing his signature at point A. He further deposed that they came back to the PS for getting the scooty deposited in the PS Malkhana. He further deposed that on the next day on 23.08.2015, they had gone to the AIIMS Trauma Mortuary at 10:00 AM for getting the post mortem of the deceased and the dead body of the deceased victim was received by the father as well as the maternal uncle of the deceased. He further deposed that the dead body handing over memo Ex. PW2/A is bearing his signature at point B. He further deposed that SI Devi Dayal Meena and he had come back to the PS and at around 02:00 PM, one person Amjad Ali had come to the PS in response to the notice u/s 133 M.V Ex. A-7. Act issued to the owner of the offending vehicle and he had also come alongwith accused Naveen Kumar. He further deposed that the said Amjad Ali handed over the copy of the driving licence of the accused Naveen Kumar and the same was seized by the IO vide seizure memo Ex. PW4/C bearing his signature at point A, copy of the insurance policy which was seized by the IO vide seizure memo Ex. PW3/B Digitally signed UMESH by UMESH KUMAR FIR No.284/2015 State Vs. Naveen Kumar KUMAR 18:08:29 Date:
8 of 24 2024.10.16 +0530 PS Lodhi Colony bearing his signature at point B, copy of the fitness certificate of the offending vehicle, permit of the offending vehicle, RC of the offending vehicle and the duty roaster which were all seized by the IO vide seizure memos Ex. PW3/C bearing his signature at point B, Ex. PW3/D bearing his signature at point B, Ex. PW3/E bearing his signature at point B and Ex. PW3/F bearing his signature at point B respectively. He further deposed that the IO then arrested the accused vide arrest memo Ex. PW4/D bearing his signature at point A and also conducted personal search of the accused vide personal search memo Ex. PW4/E bearing his signature at point A. He further deposed that he had also seized the offending vehicle from the bus depot vide seizure memo Ex. PW3/A bearing his signature at point B. He correctly identified the accused present in the court.
11. PW-4 was cross examined by Ld. APP for State wherein he deposed that the registration number of the scooty of the deceased/ victim was DL6S-AQ-9255. He deposed that the registration number of the offending bus was DL1PC-6494. He further deposed that offending bus and the scooty were the same which were seized by the IO.
12. PW-4 was duly cross examined on behalf of counsel for accused. UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2024.10.16 18:08:34 +0530 FIR No.284/2015 State Vs. Naveen Kumar 9 of 24 PS Lodhi Colony
13. The prosecution has examined Sh. Vineet Kumar as PW-4 (wrongly numbered as PW-4 instead of PW-5). He deposed that on 01.09.2015, he had got released the bus bearing no.DL1PC-6494 as he was working as the AR, Senior Executive Operations, A.B Grains Spirits Pvt Ltd (Transport Division), Cluster Bus Depot, Tehkhand Village, Okhla Phase-I, New Delhi-110020. He has identified his signatures on the indemnity bond dated 01.09.2015 Ex. PW4/A at point A.
14. The witness was not cross examined on behalf of the accused despite opportunity being given.
15. The prosecution has examined ASI Shyam Lal, MHC (M) from PS Lodhi Colony as PW-5 (wrongly numbered as PW-
5). He deposed that on 23.08.2015, a scooty bearing registration no. DL6SAQ9255 and one Bus bearing registration no. DL1PC6494 was got deposited in the malkhana by IO SI Devi Dayal. He had brought the original malkhana register of the year 2015 bearing vide serial no. 857, wherein the abovesaid property was got deposited. The copy of said entry is Ex PW-5/A (OSR).
16. The witness was not cross examined on behalf of the accused despite opportunity being given. UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2024.10.16 18:08:40 +0530 FIR No.284/2015 State Vs. Naveen Kumar 10 of 24 PS Lodhi Colony
17. The prosecution has examined Sh. T.U Siddiqui as PW-5 (wrongly numbered as PW-5). He deposed that he is the government approved surveyor and loss assessor and working for more than 40 years independently in this field. He deposed that on 25.08.2015 on the request of SI Devi Dayal PS Lodhi Colony, he had inspected one Tata Bus orange colour bearing no. DL1PC-6494 and on the same day he had also inspected one Hero Maestro Scooty black colour bearing no. DL6SAQ-9255, prepared and submitted his two detailed reports with the following fresh damages as mentioned in his report and the vehicle was found in on road condition with the damages as mentioned in his report. He deposed that his report are Ex PW-5/A and Ex PW-5/B respectively both bearing his signatures and stamp at both the places at point A. He further deposed that both the vehicles were found on road condition with the fresh damages mentioned.
18. The witness was duly cross examined on behalf of counsel for accused.
19. Accused had admitted the documents u/s 294 CrPC i.e. En-
dorsement on Rukka, Registration of FIR, Certificate u/s 65B of Indian Evidence Act, MLC of deceased bearing No. 510629, DD No. 7A dated 23.08.2015, DD No. 31A dated 22.082015 and TIP proceedings. The said documents are Ex.
UMESH Digitally signed by
UMESH KUMAR
KUMAR Date: 2024.10.16
18:08:44 +0530
FIR No.284/2015 State Vs. Naveen Kumar 11 of 24
PS Lodhi Colony
A1 to A7. Thereafter, corresponding witnesses were dropped from the list prosecution witnesses.
20. Thereafter, Prosecution evidence was closed vide order dated 08.08.2023 and the statement of accused Naveen Kumar under Section 313 CrPC was recorded on 18.11.2023. Accused denied all evidence led against him as incorrect and also pleaded innocence and false implication. The accused opted not to lead defence evidence. Thereafter, the matter was listed for final arguments.
21. At the stage of final arguments, detailed submissions were heard on behalf of prosecution as well as on behalf of the accused Naveen Kumar. I have perused the entire record and have taken into consideration the entire evidence led by the prosecution.
22. In order to prove the offences punishable U/s 279 and 304-A IPC, the prosecution has to prove beyond all reasonable doubts, the following mandatory ingredients; viz,
(i) That the accused was driving the vehicle or that he was riding, UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2024.10.16 18:08:49 +0530 FIR No.284/2015 State Vs. Naveen Kumar 12 of 24 PS Lodhi Colony
(ii) That it was a public way on which he was driving or riding,
(iii) That he was driving or riding in a rash or negligent manner.
23. In a case of Section 279/304A IPC the prosecution has to specifically establish firstly that the accused was driving the vehicle at the time of incident and the vehicle was driven by the accused in a rash and negligent manner.
24. In the present case, the prosecution heavily relies upon the testimony of PW 1 Pandit Sharad Sharma who is the eye witness of the incident. In his examination in chief, PW1 had deposed that the bus was driving by the accused person namely "Praveen" and identified the accused in the court. However the name of the accused in the present case is Naveen and not Praveen, as stated by the witness. It has not been explained by PW1 as to how he got to know the name of the accused as Praveen. Further, he deposed that after chasing the offending vehicle he returned to the place of incident where he found PCR van at the spot and the injured had already been taken to the hospital. There is material contradiction in the testimony of PW1 with respect to the place of recording of his statement as in his examination in chief he had stated that his statement was UMESH Digitally signed by UMESH KUMAR KUMAR 18:08:54 +0530 Date: 2024.10.16 FIR No.284/2015 State Vs. Naveen Kumar 13 of 24 PS Lodhi Colony recorded at the spot whereas in his cross examination he had stated that the same was recorded at his house at 10:00 PM. Further, in examination in chief, PW1 has stated that on the day of incident, the police officials came to his house and he had shown the place of incident to the police officials who prepared the site plan on his instance whereas in his cross examination, he has stated that his statement was recorded at his house at 10:00 PM and after the day of incident police never enquired him about the incident and that the IO had not prepared any document in his presence except recording of his statement. Therefore, the preparation of site plan itself comes under the cloud of doubt as the witness (PW1) himself has stated that his statement was recorded at his house and except his statement, no document has been prepared in his presence by the IO.
25. Now coming to the site plan Ex. PW4/A, the IO in naksha Mauka (Site plan) has shown three points i.e. Point A, B & C. Point A is the place where the victim vehicle was found. Point B is the place where the helmet was found in the broken condition and blood spots were present and Point C is the spot where the witness was standing. For the reasons best known to the IO, he has not mentioned the spot of incident/ accident in the site plan. Further, the IO had not taken the photographs of the place of incident which could show the exact spot where UMESH Digitally signed by UMESH KUMAR KUMAR 18:08:58 +0530 Date: 2024.10.16 FIR No.284/2015 State Vs. Naveen Kumar 14 of 24 PS Lodhi Colony the accident took place to clarify as to how the witness was able to see the accident from the traffic signal where he was standing. Considering the fact that the offending vehicle was a cluster bus which is quite big in size and the scooty being small in size was moving in front of the bus, a clear visual of impact becomes questionable from the place where PW1 was standing. Further, neither the site plan shows the exact place of accident nor PW1 has explained in his testimony as to from which side the offending vehicle hit the vehicle of the deceased. In the opinion of this court proper site plan and photographs would have been crucial to ascertain various aspects and could have also corroborated the mechanical inspection report. However, in the absence of such photographs and proper site plan the evidentiary value of the mechanical inspection report also gets reduced.
26. In his cross-examination PW-1 has stated that, "I noted down the registration number of the offending vehicle from the back side, however I had not told the accused that his offending vehicle caused the accident. I returned back at the spot within 10 - 12 minutes. I had not called on 100 number."
27. In the opinion of this Court, in the absence of proof of relevant facts which led to the presence of PW-1 at the spot of incident at the time of incident, coupled with the conduct of PW-1 in Digitally signed UMESH by UMESH KUMAR KUMAR 18:09:02 Date: 2024.10.16 +0530 FIR No.284/2015 State Vs. Naveen Kumar 15 of 24 PS Lodhi Colony neither informing the police nor making any efforts to apprehend the accused when he allegedly chased the offending vehicle to note down its registration number makes the presence of the witness at the spot of incident highly doubtful. More so, when on one hand PW1 stated that he had stopped the bus at the Airport stand and on the other hand he stated that he did not tell the accused that his vehicle had caused an accident. Surprisingly, no efforts were made by PW1 to apprehend the accused.
28. The present FIR was registered upon the Tehrir of PW-1 who himself had deposed that when he returned to the spot of incident after chasing the offending vehicle, he found PCR van at the spot and the injured had already been taken to the hospital. Surprisingly, the name of the person who had informed the police regarding the accident finds no mention in the charge sheet filed by the IO. Certainly someone must have apprised the police about the accident, however, the prosecution has failed to give any reasonable explanation during the trial as to why such person who gave such crucial information to the police was kept away from the investigation. Even the police officials of PCR who took the injured to the hospital were not examined by the prosecution. The prosecution has also failed to give any reasonable explanation during the trial that why the FIR was not registered at the UMESH Digitally signed by UMESH KUMAR KUMAR 18:09:08 +0530 Date: 2024.10.16 FIR No.284/2015 State Vs. Naveen Kumar 16 of 24 PS Lodhi Colony instance of such person who had first informed the police about the incident. Further, during cross examination of PW1, he had admitted the suggestion of Ld. counsel for the accused that number of vehicles and buses were passing due to the green signal, therefore it has not been explained by PW1 as to how he ascertained that it was the offending vehicle only which had caused the accident.
29. Further, the witness (PW1) had deposed that the accident took place due to the rash and negligent driving of the accused as he was driving the offending vehicle in high speed. The witness did not explain the manner of rash and negligent driving of the accused and had merely stated that the offending vehicle was being driven by the accused in high speed.
30. Rashness and negligence in driving a vehicle are subjective concepts and no straight jacket formula can be put to use to ascertain the rashness or negligence while driving the vehicle. Criminal rashness and negligence have to be proved like a 'Relevant Fact' during the course of trial and this onus lies upon the prosecution. There cannot be any reason, including the unfortunate death of a person involved in the incident / accident which may compel the courts to presume rashness or negligence in driving the offending vehicle. The Hon'ble Apex UMESH Digitally signed by UMESH KUMAR KUMAR 18:09:15 +0530 Date: 2024.10.16 FIR No.284/2015 State Vs. Naveen Kumar 17 of 24 PS Lodhi Colony Court in the Judgment titled as Miyam vs. State of A.P. (2000)7 SCC 72:
"7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus, no presumption of negligence can be drawn against the driver of the bus.
...
9. A rash act is primarily an overhasty 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 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."
31. PW1 in his testimony had vaguely stated that the accused was driving the offending vehicle at a 'High Speed', however, he has not even stated the approximate speed at which he might have felt that the accused was driving the offending vehicle.
UMESH Digitally signed by UMESH KUMAR KUMAR 18:09:20 +0530 Date: 2024.10.16 FIR No.284/2015 State Vs. Naveen Kumar 18 of 24 PS Lodhi Colony PW-1 failed to elaborate the term "High Speed'". It is a settled proposition of law that mere reiteration either of term rash and negligent or use of term 'high / fast speed' would not serve the purpose of prosecution to establish criminal rashness or negligence against the accused. The Hon'ble Apex Court in the judgment titled "State of Karnataka vs. Satish" SCC (CRI) 1508 observed;
"Merely because the truck was being driven at a 'high speed' does not bespeak of either 'negligence or rashness' by itself. High speed is a relative term. It was for the prosecution to bring on record material to establish as to what is meant by 'high speed' in the facts and circumstances of the case. None of the witnesses examined by prosecution could give any indication, even approximately, as to what they meant by high speed".
32. The Hon'ble Delhi High Court in Judgment titled "Abdul Subhan vs. State" 2007 (1) CCC (HC) 414 observed;
"10 ... In the present case also, I find that apart from the allegations that 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. therefore, in the absence of material facts it cannot be said merely because there is an allegation that petitioner was driving the truck at high speed, that the petitioner is guilty of the rash or negligent act. Clearly, the petitioner cannot be convicted on the sole testimony of Digitally signed UMESH by UMESH FIR No.284/2015 State Vs. Naveen Kumar KUMAR KUMAR Date: 2024.10.16 19 of 24 PS Lodhi Colony 18:09:26 +0530 PW3 which itself suffers from various ambiguities".
33. In his cross examination, PW4 (Ct. Rohtash) had deposed that the complainant (PW1) had given the complaint at the spot in front of him to the IO in his own handwriting. Thereafter, he again deposed that the IO had first gone to the AIIMS Trauma centre and when he came back to the spot after 2 to 2:30 hrs, the complainant gave his statement to the IO. He further deposed that the site plan was prepared on the spot at the same day. He admitted the suggestion that the complainant (PW1) was present at the spot throughout from the time of his giving the complaint till PW4 left the spot along with the IO at about 02:00 AM. The testimony of PW4 is in clear contradiction with the testimony of PW1 as PW1 had deposed that his statement was recorded at his home at around 10:00 PM and no other document was prepared by the IO in his presence. As observed above the site plan prepared by the IO is defective and is bereft of material particulars. Further, the testimony of PW1 and his conduct after the incident raises doubt on his presence at the spot at the time of incidence as no reasonable explanation has been given by him in not apprehending the accused when he chased the bus and even noted down its number. Further, PW1 did not even confront the driver of the bus on the point that he had caused any UMESH Digitally signed by UMESH KUMAR KUMAR 18:09:32 +0530 Date: 2024.10.16 FIR No.284/2015 State Vs. Naveen Kumar 20 of 24 PS Lodhi Colony accident. PW1 should have raised an alarm when he was successful in chasing the offending vehicle to get help from the public but for the reasons best known to him, he did not do so.
34. The prosecution also examined Sh. Amjad Ali as PW3, who was the AR of A.B. Grain Spirits Pvt. Ltd. qua cluster bus i.e. offending vehicle. PW3 also testified qua duty memo Mark A to prove that the accused was driving the vehicle at the time of incident. Perusal of the duty memo Mark A shows that the same is not an original document but a photocopy. It further shows that on the duty memo, name of scheduled driver has been mentioned as "PRAMOD KUMAR (Id No- 71636)" and some alteration/ overwriting has been done on the duty memo wherein the ID No. has been cut and another ID No. 70983 has been written by hand. Further, the name of the accused herein has not been mentioned in the said duty memo. It is a case of the prosecution that the ID No. 70983 pertains to the accused herein and it was the accused only who was driving the offending vehicle at the time of incident. During the testimony of PW3, he did not explain under what circumstances the accused was driving the vehicle instead of scheduled driver namely Pramod Kumar. Further, the original duty memo, being the primary evidence, was never produced in the court. Therefore the duty memo Mark A, being a UMESH Digitally signed by UMESH KUMAR KUMAR 18:09:37 +0530 Date: 2024.10.16 FIR No.284/2015 State Vs. Naveen Kumar 21 of 24 PS Lodhi Colony photocopy, is not admissible in evidence in light of Section 65 of Indian evidence Act. In order to prove a document as secondary evidence the conditions of Section 65 of Indian evidence Act are required to be fulfilled which has not been done by the prosecution in the present case. Hence, the duty memo Mark A cannot be relied upon. Further, PW3 is not a witness to the fact that at the time of incident, it was only the accused, but nobody else, who was driving the offending vehicle. The owner of the vehicle cannot conclusively prove that accused was behind the wheels at the time of accident. There can be no presumption with respect to identity of accused and prosecution has to establish it unequivocally, which the prosecution has failed to do in this case.
35. It is pertinent to mention here that the IO SI Devi Dayal Meena could not be examined as a witness as the summons issued to him returned with the report that he had expired and his death certificate was annexed with the report. Therefore, he was dropped from the list of prosecution witnesses. In the absence of testimony of the IO, many material aspects regarding the investigation in the present case have remained unanswered.
36. The Hon'ble Apex Court in the judgment of "State of Karnataka vs. Satish" SCC (CRI) 1508 and the Hon'ble Delhi UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2024.10.16 18:09:45 +0530 FIR No.284/2015 State Vs. Naveen Kumar 22 of 24 PS Lodhi Colony High Court in case titled "Abdul Subhan vs. State" 2007 (1) CCC (HC) 414 observed that in the absence of material facts and circumstances indicating that the accused driver acted in a rash or negligent manner, he cannot be held guilty of the offence.
37. 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. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution has 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.
38. In the opinion of this Court, the testimonies of all the PWs even together are so absolutely deficient as to assist this court to form even a vague opinion, let alone any conclusion, regarding the offending vehicle being driven by the accused in a rash or negligent manner; and whether the accident and the proximate cause of death of the deceased was the direct cause of rashness or negligence of the accused in driving the offending vehicle. UMESH Digitally signed by UMESH KUMAR KUMAR Date: 2024.10.16 18:09:49 +0530 FIR No.284/2015 State Vs. Naveen Kumar 23 of 24 PS Lodhi Colony
39. Considering the facts and circumstances of the case the prosecution has failed to successfully bring home the guilt of accused Naveen Kumar for the offences punishable u/s 279 and 304-A IPC through the testimony of examined witnesses. Accordingly, Accused is entitled to benefit of doubt. Hence, accused Naveen Kumar is acquitted of the offence u/s 279 & 304-A IPC.
UMESH Digitally signed by
UMESH KUMAR
KUMAR Date: 2024.10.16
18:09:53 +0530
Announced in the Open (UMESH KUMAR)
Court on 16.10.2024 JMFC-09/ SED/ Saket Courts,
New Delhi/ 16.10.2024
FIR No.284/2015 State Vs. Naveen Kumar 24 of 24
PS Lodhi Colony