Delhi District Court
State vs Naveeen Kumar on 4 December, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Ms. Medha Arya, DJS
Cr. Case No. -: 428633/2016
Unique Case ID No. -: DLSW020017242013
FIR No. -: 139/2012
Police Station -: Chhawla
Section(s) -: 279/337/338/304A
IPC.
In the matter of -
STATE
VS.
NAVEEN
S/o Sh. Rajender Singh
R/o Village Paprawat,
New Delhi - 110043.
.... Accused
1. Name of Complainant : Sh. Ganga Saran
2. Name of Accused : Naveen
Offence complained of or
3. : 279/337/338/304A IPC.
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 22.06.2012
offence
6. Date of Filing of case : 23.07.2013
7. Date of Reserving Order : 17.11.2023
8. Date of Pronouncement : 04.12.2023
9. Final Order : Acquitted
Argued by -: Ld. APP for the State.
Ld. counsel for the accused.
Cr. No. 428633/2016 State vs. Naveen Page 1 of 41
"The past is never dead. It is not even past"
William Faulkner
BRIEF STATEMENT OF REASONS FOR THE
DECISION :
FACTUAL MATRIX-
1. It is the case of prosecution that on 22.06.2012, complainant Ganga Saran and his family members were returning to their home on two motorcycles, after having attended a wedding. Enroute, the motorcycle which the complainant was driving got punctured near Pandwala Mor, Jhatikara Road, Najafgarh. He as well his brother parked their respective motorcycles on the Kacha rasta (unconstructed road) near the road. They called upon a passerby riding passing the road on his motorcycle, whose name later was revealed to be Pradeep, for help. The latter told them that they can get their bike repaired at a shop close to the spot. However, no puncture repair shop was available. They returned to the spot then, and were trying to figure out a way to proceed, when at about 10.20 PM, the offending vehicle i.e. car bearing registration number DL 5CD 9372, being driven by the accused, from the side of Daulatpur-Shikarpur, hit them. In the accident, minor son of complainant, namely Aryan, suffered fatal injuries. Injured Ramo got entangled with the offending vehicle, which the accused continued to drive, until the car got stopped by itself after about 100 meters. She suffered grievous injuries. Injured Pradeep also Cr. No. 428633/2016 State vs. Naveen Page 2 of 41 suffered grievous injuries. Injured Ganga Saran and Ganga Ram suffered simple injuries in the accident. A call to the PCR was made, and meanwhile, a car passing through the area helped shift the injured persons to RTRM hospital.
2. After conclusion of investigation, instant chargesheet was filed under Section 279/337/338/304A IPC. Cognizance of the offences disclosed in the chargesheet was taken, and accused was summoned to face trial.
3. When the accused entered appearance before this Court, copy of chargesheet was supplied to him in compliance of Section 207 CrPC. A formal notice explaining to him the substance of accusation against him was served upon the accused on 11.12.2013. Accused pleaded not guilty to the offences alleged against him, and claimed trial. Proceedings then progressed to the stage of PE.
PROSECUTION EVIDENCE
4. PW1 Ganga Saran testified that on the date of the incident, he and his family members were coming back on two motorcycles from Gurgaon to Delhi. He testified that he was driving a motorcycle bearing registration number 6320, and midway, the tire thereof got punctured. He testified that he got the second motorcycle which was being driven by his brother to also stop, and both of them parked their respective motorcycles on the unconstructed (Kacha rasta) lane besides the road near the spot of the incident. He testified that at about 9.30 pm, he Cr. No. 428633/2016 State vs. Naveen Page 3 of 41 beckoned a passerby, whose name was later revealed to him to be Pradeep, for help. Pradeep also stopped his motorcycle besides their motorcycles, and informed him that the tyre can be got repaired from a puncture shop located at a distance of about 1 to 1.5 km from the spot. PW1 testified that they went to Pandwala Mor, but did not find any puncture - repair shop there. He deposed that he and his family members, as well as Pradeep were standing on the Kacha Rasta besides the road, where their motorcycles were also parked. At that time, the offending vehicle being driven by the accused at a very high speed came from their right side and hit him. He deposed that it was being driven from Jhatikara side going towards Najafgarh, and because of the impact, he fell down on the Kacha rasta itself. He testified that when he stood up, he saw that the car driver was dragging his mother with his car on the road. He testified that he yelled to get the driver of the offending vehicle to stop his car, but he did not do so. However, after a certain distance, the accused was constrained to stop his car, as the body of his mother/injured Ramo got entangled with the radiator of the offending vehicle. PW1 testified that he saw that it was the accused who was driving the offending vehicle on the date of the incident. He testified that the accused continued to drag his mother for a distance of about 100 meters, until the car had to be stopped by him. He testified that in the accident, his mother sustained grievous injuries, and his minor son Aryan was also severely injured. He testified that someone then made a call to the PCR at 100 number, but before the PCR could reach the spot, one other passerby stopped his car on the road, and helped him shift his Cr. No. 428633/2016 State vs. Naveen Page 4 of 41 mother as well as his minor son to RTRM hospital. His son was declared brought dead when they reached the hospital, while his mother had to be shifted for better treatment to AIIMS Trauma Center. PW1 also testified that after the accident, SI Sunil Kumar came to the hospital and forced him to compromise the matter with the opposite party, which he refused to do. He testified that SI Sunil Kumar not only obtained his signatures on a blank paper, but also actively helped the accused by washing the tyre marks of the offending vehicle from the Kacha Rasta, as well as washing the blood stains from the body of the car. He testified that the accused was arrested on 27.06.2017 by SI Sunil Kumar, but he was not called to the police station at the said time. He testified that SI Sunil Kumar then came to his house on 09.07.2012 to record the statement of his mother, but she was still admitted in the hospital then. During his testimony, the witness also brought on record a number plate of the offending vehicle broken into two pieces. The same were exhibited as Ex. P1 and P2. He identified the offending vehicle from the photographs, Ex. P1 to P9.
In his cross examination, the witness testified that the indicators of the motorcycle were switched on at the time when they were parked on the road. He testified that a lot of residences are constructed around the spot of the incident. He expressed his inability to specify if the motorcycles were parked one after the other, or parallel to each other, right before the accident. He accepted as correct the suggestion that the road near which the accident took place used to have heavy traffic flow. He testified that there were a lot of residences constructed around the Cr. No. 428633/2016 State vs. Naveen Page 5 of 41 area where the accident took place. He testified that vehicle of Pradeep was also damaged in the accident. He testified that the IO never recorded his statement at the spot. He further testified that the offending vehicle had stopped at about 80-100 meters away from the place of occurrence. He testified that right after the accident, he first tried to hold his son, and thereafter he ran towards the car, but till then the driver of the car had fled. He volunteered at this juncture that because the body of his mother had become entangled with the radiator of the offending vehicle, the same stopped running. He testified that the IO had taken his signatures on certain blank documents. He testified that he saw the accused for the first time in court, since after the day of the accident. He further testified that after the accident, he reached near the offending vehicle within 10 minutes, and accepted as correct the suggestion that by the time he reached near the offending vehicle, the driver of the car had already fled the spot. He testified that the site plan was not made by the IO at his instance. He testified that although he had not mentioned any specific facial recognition features of the driver of the offending vehicle to the IO, he had stated to the IO that he can identify the accused. He testified that when he obtained the photocopy of statement of Indu Yadav from the IO, is when he got to know that the name of the driver of offending vehicle was Naveen Yadav. He denied the suggestion that the accident took place because his motorcycle as well as the other motorcycle belonging to his family members were both parked on the road itself. After being Cr. No. 428633/2016 State vs. Naveen Page 6 of 41 cross-examined at length, PW1 was discharged as a witness.
5. PW2 Ganga Ram testified in sync with the prosecution version as to how the accident had occurred. He also testified that right before the accident, their motorcycles were parked on the unconstructed lane (kacha rasta) near the main road. He testified that he cannot recognise the accused as the driver of the offending vehicle, as he had fallen unconscious because of the injuries that he sustained in the accident, and when he regained consciousness, he saw that his brother and public persons were pulling out his mother from under the offending vehicle. He testified that his signatures were taken by the IO on certain blank documents. Because the witness failed to fully support the case of prosecution in as much as he did not recognise the accused as the driver of the offending vehicle, with the permission of the court, questions in the nature of cross- examination in terms of Section 154 of Indian Evidence Act, 1872 were put to the witness by Ld. APP for the State. The witness testified at that stage that when he opened his eyes, his mother was being taken out from under the offending vehicle, and the driver of the offending vehicle had already fled the spot, because of which he cannot identify the accused as the driver thereof. The witness was unable to specify the exact distance between the spot from where he was rescued, and the spot from where his mother was rescued, but accepted as correct the suggestion that the offending vehicle had hit his motorcycle which was parked on the kacha rasta near the road.
In his cross examination, the witness accepted as Cr. No. 428633/2016 State vs. Naveen Page 7 of 41 correct the suggestion that when they met with the accident, vehicles were plying on both the sides of the road. He testified that street lights were installed at the road where the accident took place. He testified that he cannot specify the distance which they had covered from Jhatikra Village using the punctured motorcycle, and cannot either specify the place where he had met the motorcyclist who had informed them that a puncture shop might be available at about 1-1.5 km from the spot. He testified that the punctured motorcycle was parked by them at the Kacha Rasta near the road. He testified that he cannot specify as to how many people were sitting inside the alleged offending vehicle, but volunteered that at the time when he opened his eyes, the same was empty. He testified that public persons had gathered at the spot, but he cannot specify how many people were present at the time of the accident. He testified that when he regained consciousness, he saw that the alleged offending vehicle was stationed partly on the Kacha Rasta, and partly on the road. He was unable to specify the breadth of the road where the accident took place. He testified that he cannot say with certitude if the wind sheet of the offending vehicle had broken in the accident or not, and deposed that perhaps the wind sheet had broken and fallen on the road after the impact. He stated that police had not recorded his statement. He further stated that he had not gone to the spot of the incident with the IO, but volunteered that it was because he had suffered a plaster on his right leg. He denied the suggestion that the indicators of their vehicle were not on before the accident took place, and further denied the suggestion that the motorcycles were parked on the road in a wrong manner, because Cr. No. 428633/2016 State vs. Naveen Page 8 of 41 of which the accident took place.
6. PW3 Hemlata w/o Ganga Sharan also testified in sync with the prior two witnesses regarding the manner in which the accident took place. Even this witness, in her examination in chief, testified that she was unable to recognise the accused as the driver of the offending vehicle, as she had fallen unconscious after looking at the condition of her son, from whose body blood was oozing out. However, she identified correctly the offending vehicle from the photographs thereof, and also identified the motorcycles belonging to her and her family members involved in the accident, from the photographs. All the photographs of the vehicles involved in the accident were exhibited as Ex. P1 to Ex. P21. When cross- examined by Ld. APP for the State, she accepted as correct the suggestion that the offending vehicle came at the side of the road where they were standing and hit their motorcycles and their family members. She testified that although her husband can identify the driver of the offending vehicle, she cannot identify the accused as the driver of the offending vehicle as she had not seen him, because she fell unconscious right after the accident.
In her cross-examination, she testified that although it was dark, there were street lights near the area, and there was sufficient light enabling them to see in the dark. She testified that the dipper or blinker lights of the motorcycles were not switched on at the time when the incident took place. She denied the suggestion that the accident took place because their motorcycles were wrongly parked on the road.
Cr. No. 428633/2016 State vs. Naveen Page 9 of 417. As PW4, prosecution examined one Nagendar S/o Bhagwan Sharma, who testified that dead body of deceased Aman was handed over to him vide memo Ex. PW4/B, and that at that time, the IO had recorded his statement regarding dead body identification of deceased, being Ex. PW4/A. The witness was not cross-examined despite opportunity.
8. Ct. Kailash Chandra was examined by the prosecution as PW5. PW5 testified that on 27.06.2012, he had accompanied IO/SI Sunil Kumar for the purpose of service of notice under Section 133 MV Act, Ex. PW5A, upon Indu, being the registered owner of the vehicle. He testified that after service of notice, the IO obtained the reply of the said Indu, who also produced the RC and insurance of the offending vehicle. He testified that the offending vehicle was then seized by the IO, vide memo Ex.PW5/B, which contains his signatures at point A. He deposed that the accused was arrested in his presence vide memo Ex. PW5/C. In his cross-examination, he testified that he cannot specify the address of Indu, cannot specify if she resides in a nuclear or joint family, or which of her family members were present at the time when he had gone to her house for the purpose of service of notice under Section 133 MV Act. He testified that he cannot even specify the exact educational qualification of the said Indu. He testified that the said Indu had not written the reply to the notice in his presence. He testified that he cannot say if Cr. No. 428633/2016 State vs. Naveen Page 10 of 41 Indu had signed the seizure memo of the RC and insurance of the offending vehicle as a witness or not. He denied the suggestion that he had never gone to the house of said Indu for the purpose of service of notice as aforesaid. He denied the suggestion that no such notice was ever served upon Indu.
9. PW6 Ramo, another eyewitness and injured, testified in sync with the prosecution version about the occurrence of the accident while their motorcycles were standing on the Kacha road. She also testified that she came under the offending vehicle in the accident, and lost her consciousness. She testified that she had not seen the driver of the offending vehicle at the time of the accident.
In her cross examination, she testified that the accident had taken place at about 9.30 pm, and it was completely dark. She testified that she cannot say if the road was damaged or not. She testified that no indication was put by them near the spot where they were standing. She also testified that she cannot even specify the color of the offending vehicle which had hit them, or even its make. She testified that the road at which the accident took place was not divided with any middle verge. After being cross examined thus, PW6 was discharged as a witness.
10. Prosecution next examined one Pradeep S/o Ishwar Singh as PW7. He testified that he was passing through the area of the accident when he was stopped by one person randomly, who sought his help by telling him that his motorcycle's tyre had been punctured. He testified that they decided to go to the Cr. No. 428633/2016 State vs. Naveen Page 11 of 41 puncture repair shop, but when they could not get any help from there, he and the said person started to check and attempt the repair of the tyre of the motorcycle on the road itself. He testified that suddenly he heard the sound of a car coming from the opposite side, which hit their motorcycles. He testified that even he sustained some injuries in the accident. He expressed his inability to identify the driver of the offending vehicle, and attributed the same to lack of any source of light near the spot. Even when cross-examined by Ld. APP for the State in terms of section 154 of the Indian Evidence Act 1872, the witness expressed his inability to identify the driver of the offending vehicle, and also denied the genuineness of his statement recorded under section 161 CrPC, being mark A. In his cross-examination by the accused, the witness accepted as correct the suggestion that when the accident took place, their motorcycles were parked on the road itself. He also accepted as correct the suggestion that there was complete darkness near the spot, and there was no street light which was available. He accepted as correct the suggestion that two people from the offending vehicle had alighted after the accident to help them. He testified that the IO had neither recorded his statement nor that of any other person at the time when the accident took place. He also testified that no indicators were turned on by them at the time of the accident. He further testified that he cannot opine if the offending vehicle was at fault when the accident took place, or not.
11. PW8 Sheel Ganga testified that he is the registered Cr. No. 428633/2016 State vs. Naveen Page 12 of 41 owner of the vehicle bearing being the motorcycle bearing registration number DL8SA6320.
He was not cross-examined despite opportunity.
12. PW9 Indu, being the registered owner of the offending vehicle, testified that she had received a notice under section 133 MV Act, Ex. PW5/A, but does not know as to who had written the reply on the said notice. She testified that she had signed 2-3 blank papers upon the instructions of the IO. When cross-examined by Ld. APP for the State, the witness testified that she has completed her M.Com, and is residing in a joint family. She testified she does not know where she was on the date of the accident, and testified that she does not even know as to who was driving the offending vehicle on the date of the accident. She volunteered that sometimes neighbours used to borrow her car. She testified she does not know if her vehicle was seized by the I.O., but accepted as correct the suggestion later that the same was got released by her on Superdari on 20.06.2012 vide superdarinama, Ex. PW9/A. She testified that because of lapse of around 10 years since the date of the accident, she is unable to recollect any facts regarding the same. She testified that she had signed the document Ex. PW5/8 twice at the instructions of the IO, but did not ask him as to why her signatures were being obtained. She testified that she does not even remember where she had signed such documents. She denied the suggestion that accused Naveen was driving the vehicle at the relevant time.
The witness was not cross-examined by the accused despite opportunity.
Cr. No. 428633/2016 State vs. Naveen Page 13 of 4113. IO Insp. Sunil was examined by the prosecution as PW10. He testified that he received the information regarding the accident vide DD No. 31A and 35A, whereafter he went to the spot of the accident, where he found three motorcycles, and one Maruti 800 car in an accidental condition. He testified that he left PSI Yashveer behind, and went to the RTRM hospital, where he he collected the MLCs of the various injured persons. He testified that he thereafter went back to the spot and prepared a tehrir, Ex. PW10/D, which was transmitted to the PS concerned through PSI Yashveer, and on the basis of which, the subject FIR was registered. He testified that he had also taken the photographs of the spot with his mobile phone, being Ex. P1 to P21. He testified that thereafter he seized the vehicles involved in the accident vide seizure memos Ex.PW10/E to Ex. PW10/I. He testified regarding the codal formalities discharged by him, such as handing over of the body of deceased Aryan to his relatives, and getting done the mechanical inspection of the vehicles involved in the accident. He testified that on 27.06.2012, he had also served the notice under section 133 MV Act upon the owner of the offending vehicle, Indu Yadav. He also testified regarding the, qua the arrest of the accused vide arrest memo Ex. PW5/C. In his cross-examination, he testified that he is not aware as to whose phone number is mentioned on DD No. 31A. He testified that he did not find any public person present at the spot. He testified that neither injured Pradeep nor any other person intimated him as to how many people were present at the spot when the accident took place. He testified that he had made Cr. No. 428633/2016 State vs. Naveen Page 14 of 41 local enquiry from persons who were having their shops near the spot of the accident, but since none of them knew anything regarding the accident, he did not record their statements under section 161 CrPC, nor mentioned this fact in the chargesheet. He testified that he cannot recall the names of any person whose statement he had recorded at the hospital on the date of the incident itself. He accepted as correct the suggestion that the notice under Section 133 MV Act was not served upon Indu by him at her residence, but volunteered that Indu herself in response to the notice had stated that the vehicle was being driven by the accused at the relevant time. He accepted as correct the suggestion that complainant has insinuated against him that he had not carried out the investigation of the present case in a fair manner. He accepted as correct the suggestion that when he reached the spot at about 2.45 A.M. after visiting the hospital, the spot was not cordoned off, and vehicles were plying on the road as per usual. He also testified that he did not call any mechanical inspection or crane to the spot, and got the vehicles removed from the spot of the accident off his own accord. He testified that from the date of the accident till 26.06.2012, he did not record the statement of the owners of any of the vehicles involved in the accident. He accepted as correct the suggestion that proceedings qua the vehicles were carried out by him in the PS on 27.06.2012. He was unable to specify the educational qualification of Indu, the owner of the vehicle. He testified that the complainant never identified the accused in his presence. He also testified that he does not remember if he prepared any site plan of the spot at the instance of PW Ganga Saran, or if said Cr. No. 428633/2016 State vs. Naveen Page 15 of 41 Ganga Saran had even shown him the exact spot of the accident. He testified that in the site plan made by him, he has shown the directions from which the offending vehicle had reached the spot of the accident. He testified that he has not shown any street lights in the site plan, but denied the suggestion that the same is because there were none near the spot of the incident. He denied the suggestion that the offending vehicle was being driven by one Dharme Singh, and the said fact was put in his knowledge during investigation itself. He denied the suggestion that one Dharme Singh had accompanied the accused to the PS on 27.06.2012. After being cross-examined thus, the witness was discharged.
14. Retired SI Lakram was examined by the prosecution as PW11. He testified that the investigation of the case was marked to him on 12.07.2012, after which he collected the post- mortem report of deceased Aryan, as well as the MLCs of the other injured. He testified regarding the formalities done by him of release of the motorcycle to its rightful owner during investigation. He testified that after conclusion of the investigation, he filed the subject charge sheet.
The opportunity to cross examine the witness was not availed by the accused.
15. Dr. Satish Chandra Yadav was examined as PW12 by the prosecution. He proved the MLCs of the injured Ganga Ram, Pradeep, Ramu and Ganga Sharan, as well as the deceased Aryan.
Even he was not cross-examined despite
Cr. No. 428633/2016 State vs. Naveen Page 16 of 41
opportunity.
16. The last witness to be examined by the prosecution was SI Yashveer. Deposing as PW13, SI Yashveer testified that he had gone with the IO to the spot of the accident after receiving DD number 35A.He testified that the IO then left him behind at the spot and went to the hospital, and after returning from the hospital to the spot, handed him over the tehrir, on the basis of which the subject FIR was registered. He also testified regarding the formalities done by the IO, qua the seizure of the vehicles involved in the accident, and their subsequent release.
In his cross-examination, the witness accepted as correct the suggestion that the road where the accident took place does not have a divider. He also accepted as correct the suggestion that it was dark at the spot when they had reached there, and no public person was present at the spot of the accident. He testified that the IO had removed the offending vehicle as well as the vehicles of the injured from the spot of the accident to the roadside. He testified that all vehicles involved in the accident except one Bajaj Discover motorcycle were lying close to each other near the spot of the accident.
After being cross-examined thus, the witness was discharged.
17. In terms of Section 294 Cr.P.C., accused admitted the genuineness of FIR no. 139/2012 Ex. X1, DD no. 31A and 35A both dated 22.03.2012 (colly) Ex. X2 and DD no. 5B dated 23.06.2012 Ex. X3. In the additional statement recorded under Cr. No. 428633/2016 State vs. Naveen Page 17 of 41 Section 294 Cr.P.C. on 31.07.2023, accused also admitted the genuineness of DD no. 2A dated 23.06.2012 Ex. A4, DD no. 5B dated 27.06.2012, Ex. A5, TIP proceedings dated 27.06.2012 Ex. A6, Post mortem report of deceased Aryan dated 23.06.2012 Ex. A7, provisional death certificate of deceased Aryan Ex. A8, Superdarinana / affidavit of Smt. Suresh (qua motorcycle bearing No. DL 9SQ 9003) Ex. A9, X-Ray reports of injured Pradeep, Ganga Ram and Ramo dated 22.06.2012, Ex.A10,Ex.A11 and Ex. A12. Accordingly, remaining witnesses were dropped from the list of witnesses to be examined by the prosecution. PE was closed thereafter.
18. Accused was then given an opportunity to explain all the incriminating circumstances appearing against him at trial, and his statement was recorded under Section 313/281 CrPC. He submitted to the Court that he was at his shop at the time of the accident. He submitted further that at the time of the accident, at the relevant time, his vehicle was being driven by his late grandfather, Dharme. Accused opted not to lead DE in the affirmative.
19. Proceedings then progressed to the stage of final arguments. Final arguments heard. Record perused. Considered.
20. Before proceeding further, it shall be apposite to note the provisions of law germane for the adjudication of present proceedings :
Cr. No. 428633/2016 State vs. Naveen Page 18 of 41279 IPC- Rash driving or riding on a public way-
Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt to injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
337 IPC- Causing hurt by act endangering life or personal saferty of others-
Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
Section 338:- Causing grievous hurt by act endangering life or personal safety of others.
Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
304A IPC- Causing death by negligence-
Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide Cr. No. 428633/2016 State vs. Naveen Page 19 of 41 shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Liability for the aforesaid offences can be affixed upon the accused only if the prosecution is able to prove he was "rash or negligent" when driving the offending vehicle, which resulted in the accident.
21. In Mohammed Aynuddin @ Miyam vs State Of Andhra Pradesh (2000) 7 SCC 72, the scope of the terms "rashness or negligence" was explained by the Hon'ble Supreme Court of India thus, " A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty 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."
22. It is seen that evidence led in the case is largely ocular in nature. The same shall be scrutinized as per the following principles laid down by the Hon'ble Supreme Court of India in its judgment titled Shahaja @ Shahajan Ismail Mohd. Shaikh vs State Of Maharashtra dated 14.07.2022 in Criminal Appeal no. 739/2017- Cr. No. 428633/2016 State vs. Naveen Page 20 of 41
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Cr. No. 428633/2016 State vs. Naveen Page 21 of 41 investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of Cr. No. 428633/2016 State vs. Naveen Page 22 of 41 interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, Leela Ram v. State of Haryana, AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012]"Cr. No. 428633/2016 State vs. Naveen Page 23 of 41
23. With the above in mind, the facts of the case shall be adverted to. In order to prove the guilt of the accused, the prosecution had to establish-
(i)That the accident took place on a public way.
(ii)That the offending vehicle was involved in the accident.
(iii) That in the accident that took place, grievous injuries were sustained by injured Ramo and Pradeep, simple injuries were sustained by injured namely Ganga Ram and Ganga Saran, and that deceased master Aryan suffered fatal injuries in the accident.
(iv) That the accident took place because of the 'rashness or negligence' of the driver of the offending vehicle.
(v) That the offending vehicle was being driven by the accused at the relevant time.
24. Out of the five ingredients that the prosecution had to establish, first two have been admitted by the accused himself. While it is the version of prosecution that the accident took place near the Kacha Rasta of the main road, when the offending vehicle being driven on the main road suddenly hit the parked motorcycles of the injured, the version of accused is that the vehicles of the victims were also parked on the road itself. In either event, it can be considered to have been admitted by the accused as well that the accident took place when the offending vehicle was being driven on a public way. Further, it is seen that while certain stray questions were put by the accused to a few Cr. No. 428633/2016 State vs. Naveen Page 24 of 41 prosecution witnesses such as PW6 Ramo asking her if she can identify the color or the make of the offending vehicle, largely the tenor of the defence taken by the accused is not that the offending vehicle was not involved in the accident, but the fact that he was not driving the vehicle. In fact, scrutiny of testimony of PW1 especially, and the testimonies of other witnesses as well, clearly shows that the accused also admitted that the offending vehicle was involved in the accident. A suggestion was given to PW7 by the accused that some people had alighted from offending vehicle after the accident to help them, which also amounts to an admission of involvement of vehicle in the accident. In his statement under section 313 CrPC also, the accused admitted that the offending vehicle was involved in the accident that had taken place, while taking the defence that he was not the driver thereof at the relevant time. The second ingredient of the offense also stands proved.
25. Qua the third ingredient regarding the nature of injuries suffered by the injured persons, and the fact that one Aryan lost his life in the accident also, it is seen that the accused has not challenged the prosecution version. The relevant medical documents of the said injured persons as well as the deceased were proved on record by the doctor who had examined them that is Dr. Satish Chandra Yadav, examined by the prosecution as PW 12. The said witness was also not cross examined by the accused. The third ingredient of the offence also stands established.
Cr. No. 428633/2016 State vs. Naveen Page 25 of 4126. Now it remains to be seen if the prosecution could prove that the accident occurred due to the rashness or negligence of the driver of the offending vehicle, and that it was the accused who was driving the offending vehicle at the relevant time.
27. In the considered opinion of this court, the rashness or negligence of the driver of the offending vehicle is writ large on the facts of the case. It is the case of prosecution that the accident occurred while the driver of the offending vehicle hit static vehicles i.e. the motorcycles of the complainant as well as one Pradeep, stationed on the Kacha Rasta near the road. PW1, PW2 and PW3 all deposed in sync with each other that the motorcycles were parked on the side of the road and they were standing besides the motorcycles when the accident took place, after the offending vehicle suddenly came and hit them. The contrary version set up by the accused was that the cause of accident was the fact that the vehicles were parked on the road itself, and not on the Kacha Rasta besides the road. Suggestions to this effect were given by the accused to PW1, PW2 and PW3, all of which witnesses denied the said suggestion. PW6 Ramo also testified in her examination in chief categorically that they were standing on the Kacha Rasta near the road when the accident took place, and the offending vehicle hit her. Notably, one witness of the prosecution, i.e. PW7 testified contrararily to the prosecution version, to the effect that his own motorcycle as well as the two motorcycles of the complainants were stationed on the road itself, and not on the Kacha Rasta where the accident Cr. No. 428633/2016 State vs. Naveen Page 26 of 41 took place. However, the testimony of this witness on seems to be unreliable. The reason thereof is not only the fact that the other four eyewitnesses to the prosecution, in sync with each other, remained steadfast in their testimony that the accident took place while they were standing on the Kacha Rasta of the road, but also because of certain suggestions given by the accused to the witnesses themselves. To all the eyewitnesses of the accident, the accused had repeatedly suggested that there was a lot of traffic that was plying on the road of the accident at the time when the accident took place. When it is the suggestion of the accused himself that the road was a busy road, with heavy traffic plying even at the relevant time, and it is the version of prosecution that the complainant and his family members were standing on the spot for a considerable period of time looking for help, after one of their motorcycles had suffered a technical fault, the fact that the motorcycles would be stationed on the road itself seems absurd. One can presume that objection to such motorcycles being parked on the road would have been taken by other passers-by of the area also, if such were the case. Three motorcycles parked on the road itself would have obstructed any traffic movement. This is more so, when it is the case of accused himself that the road was not divided with a middle verge, and traffic from both sides used to ply on it. That is not the case of accused either. The case of the accused then that the motorcycles which the offending vehicle had hit were stationed on the road itself can easily be negatived in light of the suggestion that he himself gave to the prosecution witnesses. One other suggestion which was repeatedly given by the accused to the prosecution Cr. No. 428633/2016 State vs. Naveen Page 27 of 41 witnesses was that the blinker or indicator lights of the motorcycles were not switched on at the relevant time. While PW-1 to PW-3 all testified that such blinker lights were on, PW6 had testified that no indication was put on by them while they were standing near their motorcycle. This answer does not necessarily mean that no indicators of vehicle were on. PW7, however, testified that such indicators were not on. However, as discussed above, testimony of this witness does not inspire the confidence of this court. In any event, the accused hit vehicles stationed on the kaccha road, and not on the road itself. As such, he cannot avoid any liability even if blinkers of the vehicle were not on. Even if it is conceded that the blinker lights of the motorcycles were not switched on at that time, the case of the prosecution does not suffer any setback.
28. Now, as regards the exact spot at which the accident was caused, and the fact that sufficient public witnesses were not joined to the investigation, a lot of questions were put to the IO Inspector Sunil. The IO admitted that he had not taken the statement of any witness when he reached the spot. He also testified that he did not prepare the site plan of the incident at the instance of the complainant or any other eyewitness. He also testified that he had removed the vehicles from the spot of the incident of his own accord without calling any mechanical inspector or crane to the spot and could not show any document. The tenor of questions put to this witness was that the crime scene was tampered with, and as such benefit of doubt needs to be given to the accused to the effect that the accident was caused Cr. No. 428633/2016 State vs. Naveen Page 28 of 41 because the motorcycles of the complainant and his family members were on the road and not on the side of the road. IO has certainly left a lots of gaps in the investigation, and in this effect, PW1 has himself testified that the IO was not conducting proper investigation in the case because of which he had to approach the Hon'ble High Court of Delhi against the IO. PW1 testified in detail that the IO tried to wipe off the evidences in the case. In such a scenario, for the IO to have not made the site plan, at the instance of the complainant, or for him to have delayed recording the statement of the owners of the respective vehicles involved in the accident, are not facts of which the benefit can be given to the accused. While the importance of the site plan in a case of accident can not be denied, it is equally true that superior courts have held time and again that ocular testimony in a criminal trial is the most important piece of evidence. In so far as the site plan shows the road where the accident took place, the accused has also not denied its veracity. The only reason why the question of the site plan not being prepared properly was ratcheted by the accused was that it did not show as to where exactly the motorcycles of the complainant was stationed at the relevant time. The said fact, however, has been established by the prosecution by bringing on record ocular testimonies, unambiguous and unscathed in any manner, to the effect that the vehicles were stationed at the Kacha Rasta near the spot of the accident and not on the main road. Importance of the site plan in an accident case is not little. The site plan at hand Ex.PW10/T shows both the trajectory of the offending vehicle, as well as the spot where the motorcycle were standing. To this extent, it Cr. No. 428633/2016 State vs. Naveen Page 29 of 41 supports the prosecution version, and testimony of IO that he did not prepare the same at the instance of complainant does not detract from this fact. True, the same does not show any 'skid marks' etc., which is a lacuna in the investigation. However, given that complainant himself testified that IO had helped the accused by washing away tyre marks etc., and supported his testimony by bringing on record broken pieces of number plate of offending vehicle, the lacuna stands explained. Benefit of deliberate efforts of IO to tamper with evidence cannot be given to accused, when eye-witnesses accounts' categorically prove his guilt. For similar reasons, non-joining of public witnesses also does not hamper the prosecution version much. The testimonies of the eyewitnesses who had suffered injuries in the accident prove the case of the prosecution sufficiently, in establishing that the accident was caused due to the negligence of the driver of the offending vehicle. While non-joining of public witnesses is a relevant factor in a criminal trial, it is a well established principle of law that testimonies of other witnesses examined by prosecution cannot be brushed aside merely because they do not receive any support from the testimonies of public witnesses. The testimonies of these witnesses are cogent, and they have all unambiguously explained the manner in which the accident took place. Without a doubt, there are certain minor gaps in the testimonies of these witnesses. For example, PW1 Ganga Saran could not specify in his testimony if their motorcycles were parked parallel to each other or one after each other right before the accident, or PW2 could not specify the exact distance from where the offending vehicle stopped and the spot where he had Cr. No. 428633/2016 State vs. Naveen Page 30 of 41 fallen after the accident. However, such minor gaps in the testimonies of the witnesses do not discredit the witnesses. These witnesses could not have anticipated that an accident would take place, and therefore, were not required to remember in any great detail the manner in which their motorcycles were parked right before the accident. The witnesses also cannot be presumed to have a photographic memory to remember the exact distance from the spot from where he had fallen, to the spot where the offending vehicle had stopped, or if the wind sheet of the offending vehicle had broken at the time of the accident, or exactly how many people were present in the offending vehicle at the time of the accident. Failure of PW2 to answer each of the above questions with exactitude, or other gaps in testimonies of the witnesses are in the nature of minor variations and do not have the effect of destabilizing the creditworthiness of the witnesses. Testimonies of injured / stamped witnesses is sufficient to consider it proved that driver of offending vehicle hit static vehicles parked on the side of the road, while the vehicle was being driven at very high speed. All in all, it categorically stands proved that the cause of the accident was the negligence of the driver of the vehicle.
29. It now remains to be examined if the prosecution has been able to show that the offending vehicle was being driven by the accused at the relevant time. The IO identified the accused to be the driver of the offending vehicle on the basis of a notice under section 133 of the Motor Vehicles Act that he had served upon the registered owner of the vehicle that is Indu Cr. No. 428633/2016 State vs. Naveen Page 31 of 41 Yadav. In reply to the said notice, Ex. PW5-A, the said Indu Yadav stated that on the date of the incident, her brother-in-law Naveen was driving the offending vehicle, and he was commuting from Manesar, Haryana to his house from Dalatpur Road, Rewla Basti at the relevant time. When called by the prosecution as a witness, Indu Yadav took the witness stand as PW9, and completely resiled from her earlier version. She stated that the said notice was not in her handwriting, and that she had signed certain blank papers on which the document was later created. It is seen that the document Ex. PW5/A is a printed document, and the testimony of the witness therefore, that she had signed certain blank documents is neither here nor there. The witness, who herself says that she is a postgraduate, did not explain in her testimony as to why she would sign any blank document at the behest of police officials. A literate woman having completed her M.com, cannot be presumed to be under any compulsion to sign blank documents, without asking the reason wherefor she was made to sign the said documents. Non- explanation on part of the witness for signing such blank documents at the behest of police officials, not at one place but two, makes her testimony suspect. The witness further stated that she doesn't remember where she signed the said documents, but all the same admitted her signatures on the notice. When the circumstances are viewed together, this court is impelled to raise the inference that the contents of the notice are genuine, and the witness deliberately turned hostile, as should have been expected, to save a family member. The credibility of the witness is further diminished in view of the fact that she stated on oath that she Cr. No. 428633/2016 State vs. Naveen Page 32 of 41 does not remember who was driving the car at the time of the incident, and attributed the same to the lapse of 10 years since the date of the accident. However, given the fact that the involvement of the car in a grotesque accident was not denied, it is unbelievable that when the car was involved in such a gruesome accident, the owner thereof would forget as to who was driving the vehicle when the accident took place. Now, it was canvassed by Ld. Counsel for the accused that the fact that the notice bears the signatures of PW Indu Yadav at two places also makes the contents of the notice suspect. PW 9 Indu Yadav also stated that she had signed one blank document at two places, but again conveniently did not specify any reason for the same. Careful perusal of the notice reveals that at one place the witness had stated that the car was being driven by her brother-in-law, Naveen, and had signed the statement, and at other place she stated the name and particulars of her father-in-law. Presumably, the IO forgot to ask about the name of the father of the accused at the time when the particulars of the driver of the vehicle were disclosed by the witness, and then the witness was asked the particulars again, which were noted as a side note. The fact that the document bears the signatures of the witness at two different places does not make the document suspect. The testimony of PW9, who turned completely hostile, does not inspire the confidence of this court in any manner, and is liable to be discarded.
Cr. No. 428633/2016 State vs. Naveen Page 33 of 4130. Since the testimony of PW 9 can not be used to categorically hold that the notice under section 133 MV Act stands proved, the testimony of the IO must now be adverted to.
31. PW10/IO SI Sunil testified in his examination in chief that he had served the notice under section 133 MV Act upon the owner thereof, and had received her statement. In his cross-examination, a suggestion was given to the witness that he had not served the notice to Indu at her residence. However, this suggestion, even though accepted as correct, does not lead to the inference that the reply to the notice itself was concocted, when not even such a suggestion was given to the IO. In fact, a suggestion was given to the witness that accused Naveen was not driving the vehicle at the time of the accident, to which he replied that he cannot admit or deny this fact, and volunteered that in response to the notice under Section 133 MV Act, the registered owner of the vehicle, PW9 / Indu, had herself stated that the offending vehicle was being driven by the accused at the time of the accident, and later the accused also disclosed that he was driving the vehicle at the relevant time. This testimony of PW10 has to be read in conjunction with the testimony of PW5, who stated that he had accompanied the IO at the time of service of notice under Section 133 MV Act upon Indu, and that the said Indu had replied and signed the notice herself. Inability of PW5 to testify whether Indu was residing in a joint family or not or as to how many members were present at the time when he had gone for the service of notice or immaterial, in view of the fact that even Indu has not denied that she had signed the said Cr. No. 428633/2016 State vs. Naveen Page 34 of 41 documents. Her contention is that the contents thereon were written by the IO at a later point in time, which have been negatived by this court in the foregoing portions of this judgment.
32. Testimony of PW5 and PW10, read in conjunction, helps establish that the offending vehicle was indeed being driven by the accused at the relevant time. This court is bolstered in this conclusion by the testimony of PW1. It is to be remembered that PW1 not only got injured in the accident himself, but lost his son in the same accident, and his mother was also severely injured therein. Being a stamped witness, thus, PW1 would have no motive to falsely implicate any person, thus saving the real culprit from the action of law. It is not even the case of the accused that there was any sort of prior enmity between him and the complainant or his family members, for them to falsely implicate him. Testimony of PW1 has to be appreciated in this backdrop. Now, the entire case of prosecution is that PW1 alongwith his other family members and PW Pradeep were standing in the dark, on the Kaccha road for some considerable time before the accident took place. As such, in the natural course of events, their eyes would have gotten accustomed to the dark by then enabling them to clearly see in the dark.Further, while it is the case of the accused that there were no street lights in the area, the accused repeatedly suggested not only to PW1 but also to PW2, PW3, PW6 etc. that the road at which the accident took place was a busy road and a lot of traffic was passing through the area, both before the accident and after Cr. No. 428633/2016 State vs. Naveen Page 35 of 41 the accident also. In such a scenario, the automotive lighting would have also provided a source of light for the witness to have identified the accused. Then, even if, arguendo, it is conceded that PW1, PW2 and PW3 deposed falsely qua presence of street lights on spot, it cannot be held that there was no source of light available. PW1 testified in his examination in chief that he had seen the accusced when the latter alighted from the vehicle and ran away leaving his vehicle behind. In his cross examination, he stated that when he reached near the vehicle, the accused had already fled away. However, the witness remained categorical that the accident having taken place, the accused had driven the vehicle for 100 meters before, finally stopping the vehicle. The witness could have easily seen the accused while he was driving the vehicle ahead, and after he stopped the vehicle, alighted from the same and ran away. Merely the fact that he reached close to the vehicle after some time, which action cannot be termed to be outlandish in view of the fact that the first priority of any person would have been to look after his family members who were injured in the accident, does not create a doubt on his earlier testimony that he had seen the accused when the latter had disembarked from the offending vehicle, and before he ran away from the spot. The witness remained credible throughout his cross examination, and his testimony adds further weight to the conclusion reached by the court that the offending vehicle was indeed being driven by the accused at the relevant time.
Cr. No. 428633/2016 State vs. Naveen Page 36 of 4133. Suggestion was given to PW10 / IO Inspector Sunil that Ganga Saran had not seen the accused drive the vehicle, but such suggestion given to the IO does not have any value at all, in as much as the admission or denial of the IO to such suggestion would tantamount to merely a conjecture, which can easily be rejected. The case of the prosecution would have benefitted if public witnesses would have been examined by the IO. PW1, other eyewitnesses of the case, and PW10 all admitted that a lot of people had collected right at the spot of the accident right after the accident took place, and also that there were shops and residences around the spot of the accident. However, the IO took no effort to conduct any investigation from these public witnesses or to join them to the investigation. In fact, he stated in his testimony that he had conducted local inquiry from such public witnesses but none of them knew anything about the accident for which reason he did not make their statement part of the record. This is indeed reflective of gaps in the investigation. However, it is a settled proposition of law that benefit of every shoddy investigation does not necessarily accrue to the accused. This is more so in the facts of the present case, where the police officials are seen to have played foul from the very inception. Complainant made direct insinuations that IO had tried to shield the accused persons by not recording his statement at the first instance, and by forcing him to compromise the matter with the accused, besides trying to shield other evidences in the case also. In view of the conduct of the IO that has come on the record, the fact that public witnesses were not joined to the investigation is understandable, and cannot be considered to be a gap so major as Cr. No. 428633/2016 State vs. Naveen Page 37 of 41 to lead the prosecution case being thrown out, despite the categorical testimony of PW1 and other material on record. Even in absence of such witnesses, there remains no doubt that accused was driving the offending vehicle.
34. PW2 failed to recognize the driver of the offending vehicle, and PW3 also testified that she cannot identify the accused as the driver thereof. However, both of their testimonies do not detract from the prosecution version in as much as they both stated that they had fallen unconscious right after the accident. PW6 also expressed her inability to identify the accused, but given the fact that she had in fact become entangled with the car of the accused, her inability to identify the driver of the offending vehicle is also understandable. Even though the testimony of PW1 finds no corroboration from the testimonies of other witnesses, since accused failed to shake his testimony in any manner, his testimony alone, in the light of the reply to the notice under section 133 MV Act leads this court to the conclusion that the prosecution has been able to prove that the offending vehicle was being driven by the accused at the relevant time. It is a cardinal principle of law that evidence has to be weighed, and not measured. Evidence of even one witness, unimpeachable in character, is sufficient to indict the accused. Testimony of PW1 seems to possess a 'ring of truth', and is sufficient to reach the conclusion that it was the accused who was driving the offending vehicle at the relevant time.
Cr. No. 428633/2016 State vs. Naveen Page 38 of 4135. Prosecution has been able to cogently establish that the accident was caused with the offending vehicle, being driven by the accused, and in the said accident injured Ramo and Pradeep sustained grievous injuries, other injured persons sustained simple injuries and one Aryan passed away. Prosecution has also been able to establish that the offending vehicle was being driven by the accused at the relevant time. Onus having now shifted to the accused, the plea of alibi taken by the accused shall now be examined. It is worthwhile to note that throughout the trial, the accused did not suggest to any of the witnesses examined by the prosecution that it was not him, but one Dharme who was driving the offending vehicle. In fact, even when the registered owner of the vehicle, Indu Yadav was examined as PW9, and testified in her statement that she cannot say as to who was driving the offending vehicle at the relevant time, not even a single suggestion was given to her by the accused that the vehicle was being driven by one Dharme. This line of alibi that it was not the accused but one Dharme who was driving the vehicle at the relevant time was introduced by the accused towards the fag end of the trial, when the IO of the case was being examined as PW10. At that stage, the accused suggested to the IO that he was told very early on during investigation that it was Dharme who was driving the vehicle. The said suggestion was, of course, duly denied by the IO. Besides giving such a suggestion, all the accused did to establish his plea of alibi was to state before the Court, when his statement under Section 313/281 CrPC was being recorded, that he was not driving the offending vehicle at the relevant time, and that he was Cr. No. 428633/2016 State vs. Naveen Page 39 of 41 instead at his shop at that time. He testified that the car was being driven by his grandfather at the relevant time, and his grandfather has now passed away. By giving such a submission alone, the accused could not have hoped to establish his plea of alibi. It is a well settled principle of law that the onus to prove the plea of alibi, being a fact which is within the exclusive knowledge of the accused, is upon the accused, and the said plea of alibi has to be established by the accused with cogent strong piece of evidence. Merely suggesting to one witness, when the trial was almost over that he was not driving the vehicle, or stating in his statement recorded under section 313 CrPC that it was not him but somebody else who was driving the vehicle, and he was instead present at his shop at the time of the accident is not sufficient material for this Court to consider the plea of alibi to be established, or even probabilized. The accused did not step in the witness box himself, nor did he examine any other witness to establish that he was present at his shop at the relevant time. No cogent ground was shown by the accused as to why his own sister-in-law would reply on the notice under section 133 MV Act Ex. PW5/A that it was him who was driving the offending vehicle at the relevant time, and not his grandfather. Plea of alibi cannot be considered to have been established only on the basis of conjectures and surmises. As such, this court is of the considered opinion that the accused has not been able to show that he was not driving the offending vehicle, and was instead present elsewhere at the time of the accident. The plea is accordingly, rejected.
Cr. No. 428633/2016 State vs. Naveen Page 40 of 4136. All the constituent elements of the offence stand duly established against the accused, and as a conclusion thereto, it is held that the prosecution could prove beyond the shadow of any reasonable doubt, that the accused is guilty of the offences punishable under Sections 279/337/338/304A IPC. Accused Naveen S/o Rajender Singh accordingly stands convicted for the said offences.
37. Copy of the judgment be provided to the convict free of costs. Convict be heard separately on the point of sentence.
Pronounced in open court on 04.12.2023 in presence of accused person.
This judgment contains 41 pages and each page has been signed Digitally signed by the undersigned. Medha by Medha Arya Date:
Arya 2023.12.05
14:37:49 +0530
(MEDHA ARYA)
Metropolitan Magistrate-07
South-West District, Dwarka Courts,
New Delhi, 04.12.2023
Cr. No. 428633/2016 State vs. Naveen Page 41 of 41