Delhi District Court
State vs . : Sanjay Kumar Goel on 26 June, 2023
IN THE COURT OF MS. KRATIKA CHATURVEDI
METROPOLITAN MAGISTRATE - 04 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Sanjay Kumar Goel
FIR No : 748/2014
U/s : 279/338 IPC
P.S. : Dwarka South
1. CNR No. of the Case : DLSW020187682017
2. Date of commission of offence : 20.11.2014
3. Date of institution of the case : 14.07.2017
4. Name of the complainant : Smt. Kiran
5. Name of accused, parentage &
address : Sh.Sanjay Kumar Goel,
S/o Sh. Babu Ram Goel,
R/o C-16, Milap Nagar,
Uttam Nagar, New Delhi.
6. Offence complained of : 279/338 IPC
7. Plea of the accused : Pleaded not guilty
8. Final order : Acquittal
9. Date of final order : 26.06.2023
Argued by:- Mr. Manish Sidhawat, Ld. APP for the State
Mr. Ajay Sharma, Ld. Counsel for accused.
FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 1 of 22
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 20.11.2014 at about 12.07 PM at red light of Sector 10-11, Dwarka, New Delhi, the accused was driving the vehicle bearing no. DL-9CAS6325 in a rash and negligent manner and had hit against the scooty bearing no. DL-9SAR7294 of complainant and caused grievous injuries to the complainant namely Ms. Kiran. As such, it is alleged that the accused person has committed the offence punishable under section 279/338 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR no. 748/2014 was registered at the police station Dwarka South, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED PERSONS
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused person was filed. The Ld. Predecessor of this court took the cognizance against the accused person and summons were issued to the accused. On his appearance, a copy of the chargesheet was supplied to the accused in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused person, charge under section 279/338 of IPC was framed FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 2 of 22 against the accused on 27.11.2017. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 Smt. Kiran PW-2 Smt. Seema PW-3 Sh. Sachin Kumar PW-4 ASI Kulbhushan PW-5 SI Omkar PW-6 ASI Ashok DOCUMENTARY EVIDENCE Ex. PW1/A Statement of complainant Ex. PW 1/B Photographs of the offending vehicle Ex. PW2/A Statement of PW-2 Ex. PW4/A Rukka Ex. PW4/B Site Plan Ex. PW 4/C Seizure memo of offending vehicle Ex. PW4/D Seizure memo of scooty Ex. PX-1 DD No. 41B Ex. PW4/E Seizure memo of the stepney of the offending vehicle Ex. PW4/F Seizure memo of the mudguard of the offending vehicle Ex. PX2 Mechanical Inspection report of the vehicle of the victim Ex. PX3 Mechanical Inspection report of the offending vehicle Ex. PX4 DD No. 18 dated 20.11.2014 ADMITTED DOCUMENTS Ex. X1 MLC no. 619/14 Ex. X2 X ray plate of report on the MLC Ex. X3 FIR No. 748/14 FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 3 of 22
4. PW-1, Mrs. Kiran has deposed that on 20.11.14, she along with her jaithani, Seema was going to sector 23, Dwarka on a scooty no. 7294 and the said scooty was being driven by Seema and she was the pillion rider. At about 11.00-11.20 am they reached sector 10/11 red light, near Pratibha school, one wagon R Car no. DL 9 CAB 6325 was coming from the side of Dwarka Court. When they started their scooty on green light, at that time, the accused was coming in the aforesaid car in zig zag manner jumped the red light, while he was trying to go towards Sports Complex. However, while driving the aforesaid car in rash and negligent manner, he struck against their scooty, due to which they fell down on the road and received injuries. She saw the accused at the spot as accused got down from his car and fled away from the spot. She has correctly identified the accused and the photographs of the offending car. Public persons gathered there. One public person shifted them to Bensup Hospital, Sector-12. Some public person made a call at 100 number. Police met her in the Bensup Hospital. In her cross examination, she stated that she has studied upto 9th standard. Seema is 12th pass. She along with Seema and her two children, aged about 2 years were riding on the scooty. She does not know whether Seema was having driving license at the time of accident or even today. She does not have driving license. Scooty on which they were riding is registered in the name of Vipin. She does not know whether Seema obtained any permission from Vipin for driving the above said scooty. When accident took place, at that time, they just started their scooty on green light and were in very slow speed. At that time, accused came in a very high speed and jumped red light and hit their scooty. IO FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 4 of 22 recorded her statement only once. She cannot tell from which side accused hit their scooty. She was confronted from her statement wherein it is recorded that the offending car struck against their scooty from front side.
5. PW-2 Smt. Seema, has deposed that on 20.11.14, she along with her devrani namely, Kiran, Naksh and Kavya both, 4 years old, were going to sector-23 Mall on her scooty. The said scooty was driven by her. At about 11.00 am, they proceeded from their home. At about 11.30 am, when they reached at the red light of Pratibha School, she stopped the scooty on red light and at that time, on the green signal, when she started her scooty for crossing the signal, at that time, one Wagonr. car no. 6325 was coming from side of Dwarka Court in a very high speed as the driver of offending car was trying to cross the signal on red light. After seeing the offending car, she applied brake, however, the driver of offending car was in a very high speed due to which he struck against their scooty due to which, they fell down on road and received injuries. She saw the accused at the spot. She has correctly identified the accused and the photographs of offending car no. DL 9 CAB 6325. Immediately, after accident, accused got down from car and fled away from spot. Kiran received major injuries due to the accident. Public persons gathered there and they were shifted to Bensup Hospital, Sector-12 by public persons. Police also reached at hospital and recorded her statement. She further stated that the said accident was caused due to rash and negligent driving by accused. In her cross- examination, she stated that she is 12th pass. The scooty is registered in the name of her husband and the same was driven by her on the day of incident. At the time of accident, FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 5 of 22 she was having learning license. She did not hand over the learning license to the IO. She cannot produce the same as the same was converted into main driving license later on. She does not remember the registration number of learning driving license. She further stated that she is aware of the rule that it is mandatory for pillion rider to carry the driving license with learner license holder. Kiran was not having driving license. She was aware that two wheelers are meant for two persons only. At the time of accident, there were four persons who were riding on the scooty.
6. PW3 Ct. Dal Chand, stated that on 09.12.14, he was posted at PS Dwarka South. ASI Omkar gave him two sealed pullandas with the seal of 'OM' and asked him to take the same to FSL. He went to FSL Rohini and deposited said two pullandas at FSL Rohini and took the receiving of the same from there. He had brought the receiving and gave the same to ASI Omkar and deposited the road certificate in malkhana. He deposited the pullandas in the FSL and till the time they remained in his custody, the pullandas were sealed and intact. IO recorded his statement.
7. PW-4 SI Omkar Mal, has stated that on 20.11.2014, he was posted as ASI at PP Sector-10, PS Dwarka South. On that day he received a PCR call vide DD No.18 PP Sector-10 and thereafter, he alongwith Ct. Jogender reached at the spot traffic light Sector-10/11 crossing near Pratibha School and there he found one scooty bearing no. DL9SAR7294 and car bearing no. DL9S6325 in an accidental condition. There he enquired from the person present about the accident and somebody told him that the victim has already been shifted to FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 6 of 22 unknown hospital. He prepared the rukka on DD no.18 and handed over the same to Ct. Jogender for registration of FIR. He got the FIR registered and handed over the rukka and copy of FIR to him. He prepared the site plan at the spot and seized both the vehicles. Thereafter, he received a DD No. 41B regarding information of MLC of the injured in the present accident and left for the Bensup Hospital, Sector-12, Dwarka and there he found injured Kiran and her devrani Seema. He recorded the statement of Kiran and Seema. Thereafter, he returned to the spot and added section 337 IPC in the present case. He recorded the statement of witnesses. He received opinion on the MLC of victim Kiran and same was grievous in nature and therefore, he substituted section 337 with 338 IPC. When he recorded the statement of victim Kiran and Seema, accused Sanjay Kumar Goel was present at the hospital. During investigation, he seized the stepney of offending vehicle i.e., car bearing no. DL9CAS6325 and had put the stepney into the plastic katta and sealed the same with the seal of "OM". He also seized the front mudguard of the scooty bearing no. DL9SAR7294 and put the mudguard into the plastic katta and sealed the same with the seal of "OM". He sent the above mentioned seized stepney and mudguard to FSL. He has correctly identified the accused and the photographs of the offending vehicle. The registration number of the offending vehicle is DL9CAB6325. He mentioned the number wrongly as DL9S6325 as matter is of 2014 and therefore, he could not recollect the registration number correctly. He has correctly identified the case property i.e., one sealed pullanda containing mudguard. He got conducted the mechanical inspection report of vehicle TVS Scooty FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 7 of 22 bearing no. DL-9SAR 7294 and offending vehicle i.e. Maruti WagnoR bearing no. DL9CAB6325. The identity of the stepney and scooty are not disputed by the accused. In his cross-examination, he stated that there were only few scratch marks on the rim of the right rear tyre of the car and there was no damage on the front, back, left and right side of the car and the scooty handle, both front shocker, front mudguard, support mudguard were damaged from front side and scooty was also damaged from front right side and right side support mudguard were found damaged. Scooty was found unfit for road test. There were scratch marks on the car. He has seized only scooty and car from the spot and he has not collected any other thing as evidence from the spot. He had not clicked the photographs of the scene of crime nor he took any measurement of anything from the spot. He cannot tell the speed of the scooty at the time of alleged accident as he was not an eye witness. He cannot comment upon the quantum of damage of the vehicles only on the basis of seeing the damaging vehicles as he was not expert. Skid marks were present on the spot but he does not remember whether he had mentioned in the charge-sheet or not. He did not get clicked the photographs of the skid marks. It is correct that you had given me one written complaint to me on 20.11.2014 against the scooty driver. He does not remember the contents of the said complaint. No cognizable offence was found to be made out on basis of contents of the said complaint. He did not take any action on the said complaint after conducting inquiry. He has not mentioned this fact in the charge-sheet. He had not met any independent witness at the spot after getting the case registered. The witness stated that he had recorded the FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 8 of 22 statement u/s 161 Cr PC of Sh. Arif s/o Sh. Ahmad Hussan, Sh. Rakesh, s/o Sh. Yad Ram and Sh. Durbal Singh, s/o Sh. Ramjit. He had neither met any other public witness at the spot nor he recorded the statement of public witness. He cannot tell who had given information of the accident at 100 number or who had taken the injured to the hospital. The rider of the scooty was not having driving license at the time of accident. He had not taken any action against the scooty rider and the scooty owner. Victim and witness had given their statement to him at the hospital only once. He does not remember whether he had recorded the statement of victim Kiran and witness Seema after 20.11.2014. He recorded the statement of Ct Jogender at PS. The seizure memo contains the signature of Ct Jogender only. There was no speed breaker on the red light of sector 10/11 Dwarka. He does not remember how many times he recorded the statement of victim and witness Seema. He does not remember at whose instance the site plan was prepared. He does not remember the name of the person who told me the sides from which the vehicles were coming. He had not recorded the statement of said person as he refused to reveal his name and left the spot without disclosing his name and address. He just received the complaint, kept it in the police file and in the last appended it with the chargesheet.
8. PW-5 Ct. Jogender Singh, has deposed that on 20.11.2014, he was posted as Constable at PP Sector-10, PS Dwarka South. On that day IO ASI Omkar Mal received a PCR call vide DD No.18 PP Sector-10 and thereafter he alongwith IO reached at the spot traffic light Sector-10/11 crossing near Pratibha School and there they found one scooty bearing no.
FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 9 of 22DL9SAR7294 and car bearing no. DL9CAB6325 in an accidental condition. IO inquired from the person present about the accident and somebody told him that the victim has already been shifted to unknown hospital. IO prepared the rukka on DD no.18 and handed over the rukka to him for registration of FIR. He went to the PS and after getting the FIR registered, he returned to the spot and handed over the rukka and copy of FIR to IO. IO prepared the site plan at the spot. IO also seized both the vehicles. Thereafter, IO left for the Bensup Hospital, Sector-12, Dwarka and he remained at the spot to secure it. Thereafter, IO returned to the spot. The witness has correctly identified the photographs of offending vehicle. In his cross-examination by the accused, he stated that IO handed over to him rukka at around 12:15 P.M. He does not know how IO come to know about the victim being shifted to the Bensup Hospital. IO prepared the site plan after asking about the accident from the persons running the rehri (cart) around the spot. IO seized the scooty and Wagon R in his presence. He cannot tell how many seizure memos were prepared by the IO at the spot. He brought both the vehicles to the PS. He did not bring the vehicles to the PS at the time when he visited the PS for registration of FIR but he brought them after 45 minutes of the registration of the FIR. The car was taken to the PS with the help of crane and the scooty in E-Rickshaw. The mudguard of the scooty was damaged as the scooty might have hit with the rim of right rear tyre of the Wagon R Car. He cannot say whether there were skid marks of tyres of either vehicle in question at the spot. He does not know whether IO got the photographs clicked of the spot or not. He cannot comment whether helmet was lying at the spot FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 10 of 22 or not. IO recorded his statement at PP Sector-10. IO did not record the statement of any witness in his presence. At the time of accident there were no speed brakers around the circle where the accident took place. He does not remember at what time the seizure memo of vehicles in question were prepared by the IO. Tehrir was prepared in his presence and he does not remember what other documents were prepared in his presence by the IO. The scooty was not in running condition as the same was damaged from the front side. He does not remember the registration number of the Rickshaw in which scooty was taken to the PS. STATEMENT OF THE ACCUSED PERSON AND DEFENCE EVIDENCE
9. 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, the statement of the accused person was recorded on 06.06.2022 without oath under section 281 r/w 313 CrPC, wherein he has stated that he is innocent and has falsely been implicated in the present case. He further stated that he does not want to lead defence evidence. Thereafter, he filed an application under section 315 CrPC for giving his testimony in the defence evidence which was allowed vide order dated 12.10.2022.
10.DW-1, Sh. Sanjay Kumar Goel has deposed that on 20.11.2014, he was coming from Sector -10, Dwarka Court and going towards Uttam Nagar in his Wagon-R car no. DL- 9c AB-6325. When at about 11:45 a.m., he reached the FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 11 of 22 Chowk/Traffic Signal near Rajkiya Pratibha School, Sector-10 Dwarka, then light was green for going straight and towards right side. So, he started crossing the Chowk and when he reached near the central verge then something hit in the right rear side of his car with a great force and with a loud bang. So, he stopped and got out of his car and saw that a Scooty was lying on the road and there were two ladies and two children who were on the scooty and which had hit his car on the rear tyre. The impact/collision was so severe and intense that scooty handle, mudguard, support mudguard, scooty from right side and right-side support mudguard were damaged. Due to the collision scooty driver, pillion rider and two children had fallen on the road and the lady who was pillion rider received some injury at her hip. He helped the injured lady to move to the side of the road alongwith one person and one lady. Later on, one passerby had taken the injured to the hospital in his car. He also visited the Bensup hospital to inquire about the injured lady and to provide her all-possible help. There the ladies started making accusation /allegation that he hit their scooty with his car from the front side and due to this, the pillion rider got injured and their scooty was damaged, and demanded Rs. 2,00,000/- (Two lac only) from him. He told them that it is not him who had hit their scooty and done this accident but it is the scooty driver who had hit the rim of the right rear tyre of his car and caused this accident by jumping the red Light and driving her scooty rashly, negligently and at high speed. And after jumping the red light, she panicked when she saw his car coming in green light and in panic, she could not control her scooty. After that he came at the police post from the hospital and handed over a FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 12 of 22 written complaint to the IO on the same day of incident and the same is now Ex. DW1/A, however, the IO had not taken any action against his complaint. He requested several times to the IO to take action against his complaint and to check the veracity of his complaint, however, the IO failed to do so. After some days of incident, he again requested the IO to take action and to register an FIR on the basis of his complaint and the IO assured him that he will do the needful after getting confirmation from the senior officials. He told the IO that there were few independent persons also who were present at the spot and they will be the eye witness of the incident. IO told him that the husband of the complainant and pillion rider and one other lady approached him in the police station and further asked him to grant them compensation from the accused. After that, one DD entry 23 dated 25.11.2014 was lodged. He again asked the IO that whether any action was taken against his complaint or not, to which, IO told him that he had already sent a request for legal opinion to the prosecution branch and handed over the copy of request letter to him and further told him that the prosecution had not given any opinion on his request letter. There was no negligence on his part and the scooty was driven by Seema in a rash and negligent manner and she hit his car after jumping the red light. The register of roznamcha/ DD entry from 07.11.2014 to 04.12.2014 has been brought before the court. In his cross- examination by Ld. APP, he has stated that he is the Inspector in the Delhi Police. He asked the police officials of PS Dwarka South about the steps taken on his complaint and it was told to him that the FIR was registered on the DD no.
18. He asked the police officials that against whom the case FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 13 of 22 was lodged and IO told him that since then he had not made any person as accused and he was making the investigation regarding the same. After two years of the registration of the DD no. 18, he came to know that he was made the accused in the present FIR. He did not make any complaint to the DCP /court regarding his implication as accused in the present case before filing of the chargesheet. He made a complaint to the DCP vigilance and DCP North District after filing of the DAR in the MACT. Till date, he had not made any complaint before the court against the rider of the scooty.
ARGUMENTS
11.I have heard the Ld. APP for the State and Ld. Counsel for the accused 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 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 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. It is argued that the prosecution FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 14 of 22 has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE
14.To bring home the guilt of rash and negligent driving to the accused for the offence punishable under section 279 and section 338 of the Indian Penal Code, 1860, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows: -
(i)That the accident actually took place.
(ii)That the accident took place due to rash and negligent driving.
(iii)That the accused was the person who was driving the vehicle at the relevant time.
15.The accused has been charged for the offences of rash driving on public way (Section 279 IPC) and causing grievous injuries by a rash or negligent act (Section 338 IPC) in the present case. In order to bring home the guilt of the accused, the prosecution has to prove that the accused was driving the offending in a rash or negligent manner, and due to such driving of the accused, the victim suffered grievous injuries.
16.The gravamen of the offences under Section 279/338 IPC is the act of the accused, done with "rashness" or "negligence". The IPC does not define either of these terms. However, the ambit of these terms has now been settled by judicial pronouncements of superior Courts. In Empress of India vs. Idu Beg ILR (1881) 3 All 776 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the consequences of such act. The Hon'ble Apex Court in the case of Rathnashalvan vs. State of FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 15 of 22 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 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."
17.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 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 FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 16 of 22 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."
18.Thus, rashness implies doing an act despite the consciousness that it might result in injuries. Negligence, on the other hand, means lack of reasonable care that a person placed is the fact situation ought to take, in order to avoid injuries. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of 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 in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE
19.In the instant case, it is not in dispute that an accident had taken place and as a result the victim, Smt. Kiran had sustained grievous injuries on the date of the incident. Now, it was upon the prosecution to prove that offending vehicle was being driven by the accused at the relevant point of time in rash or negligent manner. It is pertinent to note that PW-1 and PW-2 in their testimony have deposed that when they started their scooty on green light, then the accused was coming in the offending vehicle after jumping the red light while he was going towards Sports complex and while driving his car in a rash and negligent manner, he struck against their scooty due to which they fell down on the road and received injuries. However, perusal of the mechanical inspection report of the offending vehicle vide Ex. PX3 reveals that there is a fresh dent on the right backside of the rim while as per the FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 17 of 22 mechanical inspection report of the vehicle of the victim vide Ex.PX2, there is a damage on the front side of the scooty. Thus, if one relies upon the testimony of PW-1 and PW-2 that the offending vehicle had hit their scooty, then there has to be some damage on the front side of the offending vehicle, however, that is not the case of the prosecution which makes their case highly doubtful. The accused has admitted the mechanical inspection report being a formal document, however, the same does not depict that the accident had been caused due to the rash and negligent act of the accused at the time of the accident. It has failed to indicate whether the offending vehicle was mechanically sound or not prior to the impact so as to enable the court to arrive at a conclusion as to whether the collision took place due to human rashness or negligence or mechanical failure beyond human control.
20.Moreover, the allegation of the prosecution is that the accused had jumped the red light while it was green light for the complainant, however, no evidence has been brought on record to substantiate the version of the complainant. Further, there are no photographs of the spot on the record which can depict the manner in which the offending vehicle had hit the injured. In the site plan vide Ex.PW1/B, it is merely pointed out that the accident had taken place at point A. In the case titled Abdul Subhan vs State (NCT of Delhi)" 2006 (4) LRC 472 (Del), it was held by the Hon'ble High Court of Delhi, "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 FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 18 of 22 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 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."
21.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 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 FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 19 of 22 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."
22. However, in the present case the prosecution has failed to prove that the accused was driving the vehicle in a rash and negligent manner. Further, it is pertinent to note that the IO has recorded the statement of the public witnesses namely, Arif s/o Ahmad Hussain, Rakesh s/o Yad Ram, Durbal Singh, s/o Ramjit under section 161 CrPC, which has been admitted in his testimony, however, they have not been cited as witnesses by the prosecution for the reasons best known to the IO. As per the statement of the said witnesses, it appears that the scooty had hit the car and not vice versa. Admittedly, no eye witness has been cited on behalf of the prosecution which can prove their case.
23.It is not in dispute that at the time of the accident, there were four persons (two adults and two children) who were riding on the scooty. Moreover, PW-2 has failed to prove that at the time of the accident, she had driving license to ride the scooty which has further been admitted by the IO in his testimony that the rider of the scooty was not having the DL at the time of the accident which further weakens the case of the prosecution and the benefit of doubt has to go to the accused.
24.Considering the abovesaid facts and circumstances and further FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 20 of 22 considering the fact that no photographs of place of incident regarding the collision has been placed on record by IO, prosecution has failed to prove that offending vehicle was driven in rash or negligent manner by the accused at the relevant point of time.
CONCLUSION
25.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.
26.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 injuries caused to injured was a result of the rash and negligent act of the accused. There is no evidence to link the accused with the crime charged against them.
FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 21 of 2227.Resultantly, the accused, Sh. Sanjay Kumar Goel is hereby found not guilty and is hereby acquitted of the offence under Section 279/338 of IPC.
Announced in the open court on 26.06.2023 in the presence of the accused.
(Kratika Chaturvedi) Metropolitan Magistrate-04, Dwarka, Delhi/26.06.2023 Note:- This judgment contains 22 pages and each page has been signed by me.
FIR No. 748/2014, PS Dwarka South State v. Sanjay Kumar Goel Page 22 of 22