Delhi District Court
State vs . Vivek Sharma on 21 October, 2019
FIR No. 198/17
PS: I P Estate
U/s 279/304A IPC
State Vs. Vivek Sharma
IN THE COURT OF SH. VIPLAV DABAS MM03
CENTRAL TIS HAZARI COURTS DELHI
CIS No. 458/2018
FIR No. 198/17
PS: I P Estate
U/s 279/304A IPC
State Vs. Vivek Sharma
Date of Institution of case : 17.01.2018
Date of Judgment : 21.10.2019
JUDGMENT:
a) Date of offence : 15.07.2017 b) Offence complained of : U/s 279/304A IPC c) Name of Accused, his : Vivek Sharma S/o Sh. Krishan Dev Sharma R/o N75, Panchsheel Park, P.S Hauz Khas, New Delhi d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted Page 1 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma BRIEF FACTS AND REASONS FOR DECISION: Case of the prosecution in brief is as follows:
1. On 15.07.2017, at about 10.52 p.m, in front of WHO Building, Ring Road, ITO, Delhi within the jurisdiction of PS I.P.Estate, the accused was found driving car bearing no. HP 66 A 2662 make ISUZU VCOSS, passenger vehicle, black color in a rash or negligent manner so as to endanger human life or public safety of others and while driving the said vehicle in aforesaid manner, he struck the abovesaid vehicle against a pedestrian Ratan due to which his death was caused. On the basis of aforesaid facts, the present FIR was registered for offence punishable under Section 279/304 A IPC against the accused and after usual investigation chargesheet was filed.
2. The Court took cognizance of the abovesaid offences and provisions of Section 207 Cr.P.C complied. After hearing arguments, as a prime facie case was made out against the accused Vivek Sharma for offence punishable u/s 279 & 304 A IPC, notice was accordingly served upon the accused to which accused pleaded not guilty and claimed trail.
3. In order to prove the guilt of the accused u/s 279 & 304A IPC, the prosecution has to prove the following essential ingredients of the said Sections: a. Section 279 IPC: The accused was driving the vehicle in a public place and that he was driving in a manner so rash or negligent as to endanger human life or to be likely to cause hurt/injury to any other person.
b. Section 304 A IPC : The death of a person is caused by rash or negligent act of accused, that the death of the victim was a direct result of rash or negligent act of accused which must be sufficient cause of death without the intervention of another act and that the act causing death does not amount to Page 2 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma culpable homicide.
4. During the course of the trial prosecution has examined eight witnesses to substantiate the accusation.
5. PW1 Surjit Singh deposed that he was doing the work of driving. On 15.07.2017 at about 10:30 till 10:45 pm, after having dinner he was walking on the service road near the WHO building. Then he saw one person, who was crossing the road from the side of power house and was coming to their colony and had crossed the half road, got hit by one car make Isuzu black colour having open body bearing registration no. HP66A 2662 and due to the hit the person jumped in the air and there was very high sound of the hit. He knows that person as he also resides in the same locality and we used to call him Basha. Due to the jump, the injured namely Basha fell down on the divider of the road. Thereafter, the driver of the said car stopped the car at a distance but he does not come at the spot where the injured was lying. In the meanwhile due to the incident public persons gathered at the spot and told the accused driver to go to the PS. Thereafter one of the public person made a call to the 100 number. PCR van came and took the injured to the hospital alongwith his brother Sapan Das as in this process, he called the brother of injured Sapan Das at the spot. He deposed that the sound which occurred due to the hit by the offending vehicle shows that the vehicle was at a high speed. He had signed the site plan prepared by the IO at the spot. The site plan is PW1/A. He was cross examined by Ld. APP for state and he admitted that the formal name of the injured Basha was Ratan Das and due to the faulty and negligent driving by accused, the present accident happened.
During the crossexamination conducted on behalf of accused, the Page 3 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma witness deposed that he was driving from the last 2730 years as Taxi driver. He was alone when he came for walking and witnessed the accident. His statement was recorded by IO on his instructions and in the same version, however the same was not written by him. The distance between Bharat Scouts Building and WHO building is around 100 meters. He admitted that he had seen the injured Ratan Das crossing the road. He cannot say about the exact time when the accident happened. There was no Zebra crossing and no footover bridge at the spot. The aproximate height of the divider is about one and half to two feet. There are plants of about one to one and half feet on the divider. The distance from one side of the spot and other side of the spot is clearly visible as the plants are small. The height of the injured Ratan Das was about 5 feet. The said spot is not used regularly for crossing the road by the residents of our colony in the night. He had seen the accident. Total four persons were sitting in the offending car at the time of accident. The offending car stopped at a distance of around 300400 meters from the spot. The persons sitting in the car got down from the car for little time and were seen by him. Accused Vivek Sharma was standing at a distance from the spot after the accident. Public persons present at the spot were saying that accused Vivek Sharma had made a call to 100 number. He had seen the offending car at the spot. The injured was hit from the right side of the offending car. The offending car was running in between the middle and the last lane of the road. There was proper light by way of fog light at the time of incident. He denied that there was darkness at the time of incident. The distance between the spot and WHO office is about 100150 meters. The fog light from the WHO reached the accident spot from the aforementioned distance. WHO building was on his left side at the time of incident and he was on the corner of the gali which is situated in between the WHO and the Center Board Office. He could Page 4 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma not tell the exact number of the persons but there were many persons including him who reached at the place where the accident took place. Within 34 minutes the persons gathered at the spot. He had not made call at 100 number but someone had made a call at 100 number. He does not know the name and other details of the person who made call at 100 number however, the public person stated that the accused Vivek Sharma had made a call at 100 number. He does not know the exact distance where the accused stopped his car and the place of incident. The gali where he was standing is between the WHO office and Bharat Scout Office. He admitted that all the offices and buildings were not mentioned in the site plan, which is shown to the witness. As per his knowledge regarding the places/ offices, the site plan is not correct. The accident happened at 10.3010.45 p.m. He knows the timings as he left the home at around 10.30 p.m. He knows the name of the deceased as Basha. During the case he came to know the name of the deceased as Ratan Dass. He was not able to see the injuries of Ratan Dass but it seems that there were multiple injuries on his body. He had lifted Ratan Dass with the help of other persons. He does not know the names and details of the said other persons. Ratan Dass was shifted in the gypsy. Police persons also helped in lifting Ratan Dass. At the time of lifting Ratan Dass he was on his legs side and he does not know whether he was having senses or not. No ambulance came at the spot in his presence. One police gypsy came in his presence, by which Ratan Dass was taken to the hospital. Accused did not run away from the spot. In fact he had informed through someone to accused that he can go to the police station. He admitted that if accused had to ran away from the spot he can ran away as it was highway. He got to know on the next day in the morning regarding the death of Ratan Dass from the police officials. On the day of incident when accused went to the police station, he also went to the police station but he was Page 5 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma informed to come on next day since the injured was in the hospital. Thereafter, he does not go to police station, however the police officials came to his residence. He had not checked the offending vehicle as to how many persons were sitting therein. The registration of the car was HP 66A 2662. He had seen the registration number of the car immediately after the accident. He denied that he was deposing falsely.
6. PW2 Pradeep Kumar deposed that he was residing at the above said address along with his family and he was a taxi driver by profession. Last year, he does not remember the exact date, but it was summer season. At about 11:30 p.m, he was returning from Nizamuddin Railway station. After the flyover, there was a CNG pump and when he reached there, he was behind one car colour dark blue and suddenly that car hit one pedestrian who came on the road and that pedestrian fell on the road after the accident. That car stopped after the accident. He also stopped his car on the side of the road. Suddenly he came to the person who was lying on the road and found that he was already died. He suddenly rushed towards the offending vehicle. There were one person and three females in the car and the male person was driving the car. He asked the driver of the offending vehicle to take the injured/deceased to hospital but he left the spot in his car. Thereafter, he called the police and remained at the spot for sometime and also checked the person/injured if he is alive or not but he was dead. Thereafter, he left the spot. He had also participated in TIP proceedings and identified the accused in Tihar Jail before the Ld. Magistrate. The police official also recorded his statement.
Ld. APP for the State was permitted to cross examine the witness as he was resiling from his earlier statement and during the crossexamination conducted by Ld.APP for the State, witness deposed that he does not remember Page 6 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma the exact date but it was summer season. The witness is asked if the offending vehicle was bearing registration no. HP66A2662 to which the witness deposes that he does not remember the registration number exactly. He denied that he was voluntarily not disclosing the registration number of the offending vehicle to save the accused from the clutches of law. He cannot tell if the offending vehicle was at high speed when the accident took place. He denied that the PCR van arrived in his presence and took the injured to the hospital. Witness deposed that he had given the statement to the police officials, that due to the impact of accident, the victim/deceased struck against the divider after flying off in the air. The witness is asked if the PCR van arrived at the spot in his presence and took the injured/deceased to hospital, to which the witness deposed that he did not give any such statement. During cross examination conducted on behalf of accused, witness deposed that he was a driver by profession and he was driving since last 12/15 years. He does not remember the date and year of the accident. It was about 11:30 in the night. He could not tell the exact distance between his car and the offending vehicle at the time of accident. He was driving Maruti Eeco Taxi. He could not tell the make of the offending vehicle. He does not remember the number of the offending vehicle now but he remembered the same at the time of accident. The accident occurred near CNG pump. There were road lights at the spot of accident. There were no zebra crossing at the spot and one foot bridge was at some distance from the spot. The accident took place in the right lane. The deceased was crossing the road from the divider and there were no railing on the divider and there were bushes on the divider. The bushes were about 45 feet. He cannot tell the height of the deceased. The offending vehicle was at the speed of about 50/60 Kms/hour. He could not see the deceased at the time of accident. The accident took place in his presence. The deceased suddenly Page 7 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma came from the bushes and hit the vehicle. The offending vehicle stopped at some distance after the accident and the accused came out from the offending vehicle. The accused did not try to lift the body of the deceased. About 20 people gathered at the spot after the accident. No ambulance came at the spot in his presence. He does not know, if the police officials asked any public persons present at the spot to join the investigation. The accused remained at the spot for about 15 minutes. He could not write and he did not give any written statement to the police official. It was not the crossing for pedestrian at the spot.
7. PW3 Ct. Ved Prakash deposed that on 15.07.2017, he was in reserve for the duty. His duty hours were from 8.00p.m. to 4.00 a.m. At about 10.45 p.m. he was told to go along with Ct. Shami and ASI Rakesh on an accident call. Thereafter, he along with Ct. Shami and ASI Rakesh went to the spot i.e. in front of the WHO building, Ring Road, I.P. Estate & they did not find any one at the spot. Thereafter, ASI Rakesh told him to stay at the spot and ASI Rakesh along with Ct. Shami went to the hospital. After waiting for some time, he went to the police station.
Ld. APP for the State was permitted to cross examine the witness as the witness was resiling from his earlier statement and during the cross examination conducted by Ld. APP for the State, witness denied that after some time ASI Rakesh returned back to the spot and at about 2.10 a.m., Ct. Shami returned back to the spot along with the copy of the FIR and original tehreer, that in the police station accused Vivek Sharma came and produced the vehicle bearing no. HP 66A 2662 before ASI Rakesh and told that an accident has been committed by him, that accused further told that he had committed an accident in front of WHO building, that accused told that he had hit a person Page 8 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma who was crossing the road from the abovesaid road, that he have been won over by the accused and that he was deposing falsely.
During the cross examination conducted on behalf of accused, the witness deposed that he can not tell who had called the duty officer with regard to the accident. He admitted he had not seen the accident. He cannot tell the exact place of accident. Police official did not take his signature on any document. No document was prepared in his presence. He admitted that accused Vivek Sharma did not visit police station in his presence and no site plan was prepared in his presence.
8. PW4 Arvinder Singh proved the mechanical inspection report as Ex.PW4/A. During crossexamination, he deposed that as per his inspection, the brakes of the above said vehicle were proper. He admitted that the vehicle was fit for road test.
9. PW5 ASI Anil Kumar deposed that on 16.07.2017, he was posted at MACT Cell as an ASI. On that day, further investigation of the case was marked to him. He got conducted the postmortem on the dead body the deceased namely Ratan Singh. After the postmortem, the dead body of the deceased was handed over to the relatives of the deceased vide handing over memo Ex. PW5/C. He recorded the statement of the relatives of the deceased Ex. PW5/A and Ex. PW5/B. He also seized a pullanda containing Blood Gauze vide Ex PW5/D. He got conducted the mechanical inspection of the vehicle. He also recorded the statement of the eye witnesses namely Sh. Surjeet and Sh. Pradeep. On 21.07.2017, accused was arrested vide arrest memo Ex. PW5/E. Thereafter, accused was produced before the Ld. Magistrate Page 9 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma for TIP proceedings. Accused was correctly identified by the eye witness during the TIP proceedings. He also seized the documents of the offending vehicle vide seizure memo Ex. PW5/F and Ex. PW5/G. Thereafter, accused led them to the place of accident. Thereafter, he prepared the pointing out memo which is Ex. PW5/H. He also prepared site plan already Ex. PW1/A at the instance of Sh. Surjeet. Thereafter, he concluded his investigation and submitted the chargesheet before the court.
During crossexamination conducted on behalf of accused, witness admitted that he was not present at the place of accident at the time when the accident took place. He does not know who had called at Number 100 initially. The offending vehicle was seized by first IO on 16.07.2017. Vol. he came to know that the accused himself produced the offending vehicle before the first IO. He admitted that on 19.07.2017, the mechanical inspection was got conducted. He had prepared the site plan on 18.07.2017. Brother of the deceased had told him that the eye witness namely Sh. Surjeet was present at the place where the accident had happened. He had recorded the statement of brother of deceased. He had gone to the place of accident. There was no zebra crossing or red light at the place where the accident happened. There was a divider between the road. There were some bushes on the divider. The height of the bushes were around 34 feet. There were no blood stains at the place of accident. The previous IO has not mentioned about any blood stains at the place of accident in any case diary. He denied that he had not conducted the investigation fairly. He came to know later on that accused had not run away from the place of accident. Volunteered that he came to know that accused himself had gone to the police station along with the offending vehicle.
10. PW6 HC Summy Panwar deposed that on the intervening night of Page 10 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma 15/16.07.2017, he was posted at PS I.P. Estate. On that day, his duty hours were from 8.00p.m. to 8.00p.m. He was on emergency duty along with ASI Rakesh. DD No. 48 A regarding accident was marked to ASI Rakesh for investigation. Thereafter he along with ASI Rakesh went to the spot i.e. in front of WHO Building/ Bharat Scouts and Guide Building, I.P. Estate & there they did not find any injured person but public persons who were standing there told them that the injured was already taken to the hospital by the PCR. No eye witness was found at the spot. Thereafter, they went to LNJP hospital. They collected the MLC of the person namely Ratan Das and on the MLC, it was written that patient was brought dead. Thereafter, IO prepared one tehreer and handed over the same to him for the registration of the FIR. Accordingly he left the hospital and went to PS I.P. Estate for registration of the FIR. After getting the FIR registered, he returned back to the spot and handed over the copy of the FIR and original tehreer to the IO. Thereafter, IO prepared the site plan, which is Ex. PW6/A. Thereafter, they returned back to the police station. After some time, accused Vivek Sharma came at police station along with the offending vehicle i.e. car bearing registration number of Himachal Pradesh. Accused confessed before them that he had committed an accident with his vehicle. Thereafter, IO served notice u/s 133 MV Act to accused in his presence. Thereafter, the vehicle was seized by the IO vide seizure memo Ex. PW6/B. In this regard IO recorded his statement.
Ld. APP for the State was permitted to cross examine the witness as he was resiling from his earlier statement and during the crossexamination conducted by Ld. APP for the State, witness admitted that the registration number of the vehicle was HP 66A 2662.
During the cross examination conducted on behalf of accused, the witness admitted that he was not present at the spot when the accident took Page 11 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma place. He does not know when the eye witness met the IO for the first time. He does not know the names of the eye witnesses in the present case. They had inquired from the public persons present at the spot. He admitted that the persons who were present at the spot had stated that they had not seen the accident. Vol. the public persons present there told that an accident had happened but they had not seen the same and the injured person had been taken to the hospital. They had not recorded the statement of the public person, who were present at the spot. No notice for joining the investigation were given to the public persons present at the spot. When they again reached at the spot, no eye witness was present there. Photographs of the spot were taken by the IO from his mobile phone. There was no zebra crossing or red light at the spot or near the spot. There were bushes on the divider. Vol. there is a subway near the spot but the same was closed in the night. There is a footover bridge at some distance from the spot. They had enquired from the spot as to who had made the call at Number 100. They did not find the caller. They also inquired about the caller in the hospital. He cannot say whether two site plan were prepared. Vol. in his presence only one site plan was prepared. He does not know whether the PCR official who had shifted the injured to the hospital was examined by the IO or not. He admitted that accused himself came at the police station along with his car.
11. PW7 Ct. Dinesh Kumar (inadvertently mentioned as PW6) deposed that on 16.07.2017, he joined further investigation of this case along with ASI Anil Kumar. After the postmortem, dead body of deceased was handed over vide memo Ex.PW5/C. IO seized pullanda containing blood gauze vide memo Ex.PW5/D. This witness was not cross examined by or on behalf of accused despite Page 12 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma opportunity.
12. PW8 Sapan (inadvertently mentioned as PW7) deposed that on 15.07.2017, he was present at his abovesaid address. At about 10.0011.00p.m, he received a call from his neighbourhood, who informed that his brother had met with an accident. Thereafter, he went to the place of accident I.e in front of Bharat Scouts Building, ring road. New Delhi & there he found that his brother was lying on the road in unconscious condition. Blood was oozing out from his head. PCR officials were already present there. Thereafter, he along with the PCR officials put his brother in the PCR vehicle and shifted him to LNJP hospital. He also accompanied the PCR officials in the PCR vehicle. Thereafter doctors in the hospital checked my brother and told them that he was no more and declared him dead. Thereafter he returned back to his house. Thereafter, on the next day, he went to LNJP hospital and identified dead body of his brother. Police officials recorded his statement with respect to identification of the dead body which is already ex. PW5/B. After the postmortem, the dead body was handed over to him vide handing over memo already Ex. PW5/C. Ld. APP for the State was permitted to cross examine the witness as the witness was resiling from his earlier statement and during the cross examination conducted by Ld. APP for the State, witness admitted that Sh. Surjeet is residing in the same area in which he resides. It is wrong to suggest that Surjeet had told him that the accident was caused by the vehicle no. HP66A 2662. He denied that Surjeet had seen the accident. Police officials recorded his statement only in the hospital with regard to the identification of the dead body. Surjeet had never told him about the incident. He denied that he has been won over by the accused or that he was deposing falsely.
During the cross examination conducted on behalf of accused, the Page 13 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma witness admitted that he was not present at the place where the accident took place. He does not remember who had called him and informed him about the accident. There was gathering of many public persons at the spot. No body met him at the spot, who claimed himself to be eye witness and that there was no zebra crossing at the spot.
13. On 20.02.2019, accused admitted the factum of preparation of documents i.e MLC No. EE9013747 Ex.A1, Postmortem Report No. 629/72 Ex.A2, TIP proceedings Ex. A3, PCR form Ex.A4, DD No. 48A, 49A, 50A, 51A, 52A and FIR No. 192/17 as Ex.A5 and certificate u/s 65B of Indian Evidence Act Ex.A6.
14. Thereafter, Prosecution Evidence was closed as all the material witnesses were examined and statement of the accused u/s 281 read with Section 313 read with Section 281 Cr.P.C was recorded wherein all the incriminating circumstances appearing in evidence were put to the accused who stated that there was absolutely no negligence on his part, that he was driving his vehicle within permissible speed limit, that he did post the accident everything that an honorable citizen of India should have done in the aforementioned circumstance, that the pedestrian should not have irresponsibly jumped from the divider at a spot where there was no Zebra crossing, no traffic light and no pedestrian crossing, that the pedestrian jumped really high ring road divider almost 18 inch in height and may have got disbalanced in the process and put his life in peril, that the ring road divider has really high bougainvillea bushes (almost 34 feet high), the pedestrian crossed the high bushes and jumped from the divider suddenly and accident took place and that there is absolutely no case of rash and negligent driving on his part as he was Page 14 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma driving with full responsibility and in control of his vehicle. The accused chose not to lead defence evidence.
15. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued on behalf of accused that police had falsely implicated the accused in the present case and accused was not driving the aforesaid vehicle in rash and negligent manner. It is further submitted that prosecution miserably failed to prove its case against the accused beyond reasonable doubts as no reliable witness has been able to prove rashness or negligence of the accused which is necessary element for completion of offence punishable u/s 279 /304 A IPC.
16. I have heard the arguments advanced by the Ld. APP for the State and Ld. Counsel for the accused and have perused the record of the case.
17. In order to prove the guilt of the accused for offence punishable u/s 279/304 A IPC, it is necessary for the prosecution to prove beyond the reasonable doubt that accused was driving the vehicle on a public way, that the vehicle was being driven by the accused in a rash and negligent manner and that due to the said manner of driving an accident was caused and due to which the victim died. In the present case, it is admitted fact that accused was the driver of the offending vehicle at the time of accident. It is also not disputed that the accident was caused by the vehicle driven by the accused on Ring Road which is a public way with lot of vehicles plying at a given time and that the victim died due to the injuries sustained in the accident. So only essential Page 15 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma element which remains to be proved in this case is the presence of rashness or negligence on the part of the accused who has taken the defence that he was not rash or negligent in driving as he was within the permissible limits and the accident was caused as the pedestrian jumped right in front of his car from the divider and he tired to save him but the pedestrian could not be saved.
18. Perusal of the record reveals that out of the various witness brought by the prosecution PW1 and PW2 are the only eye witnesses of the accident. Perusal of the testimony of PW1 reveals that he deposed in his examination in chief that offending vehicle was driven at a hight speed and sound which occurred due to the hitting of the offending vehicle establishes the same. It is further evident from the examination in chief of the PW1 that he does not say anything about the rashness or negligence or faulty driving of the accused. However, in the cross examination conducted by the Ld. APP for the State, the PW1 for the first time stated that present accident happened due to faulty and negligent driving by the accused. It is further clear from the examination in chief and cross examination conducted by the Ld. APP for the State that PW1 did not say anything about the approximate speed or the manner in which the driving of the accused can be called faulty, negligent or rash.
19. Perusal of the record shows that PW1 had deposed that he had called PW7 Sh. Sapan, brother of the deceased at the spot and that the deceased was shifted to the hospital alongwith his brother. It means that PW1 and PW7 must have met and seen each other at the spot but the testimony of PW7 shows that the in the cross examination conducted on behalf of state he denied that PW1 Surjeet had told him that the accident was caused by the vehicle no. HR 66A 2662 and that PW1 Surjeet had seen the accident. He further stated in Page 16 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma the said cross examination that PW1 Surjeet never told him about the incident. In the cross examination conducted by the Ld. Counsel for the accused PW7 affirmed the aforesaid version by deposing that no body met him at the spot who claimed himself to be the eye witness. This testimony of PW7 which is in stark contradiction to the testimony of PW1 creates grave doubt upon the factum of PW1 having any made any call to PW7 qua the accident as well as the factum of very presence of PW1 on the spot. It further indicates that the testimony of PW1 qua witnessing the alleged accident is not reliable and can not be believed. It is further evident from the testimony of PW1 that he admitted that as per his knowledge regarding the places / offices near the spot, the site plan which is proved by the police witnesses, is not correct. This testimony of PW1 creates doubt upon the presence of the PW1 at the place from which he was able to see the accident after which he went to the spot as stated by him which further creates doubt upon his witnessing the accident and renders his testimony nugatory.
20. Perusal of the testimony of PW2 reveals that he did not support the prosecution version and in the cross examination conducted by the Ld. APP for the State he testified that he can not tell as to whether offending vehicle was driven at high speed when the accident took place. He admitted in the cross examination conducted by Ld. Counsel for the accused there there was no Zebra crossing at the spot and one footbridge was at some distance from the spot. He further testified that accident took place in the right lane and that the deceased was crossing the road from the divider and there was no railing on the divider and there were bushes on the divider. He further deposed that the deceased suddenly came from the bushes and hit the vehicle and that there was no crossing for the pedestrian at the spot. He further stated that offending Page 17 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma vehicle was driven at speed of 5060 Km/ Hr. The aforesaid testimony of PW2 shows that the victim was crossing the road from the place which was not meant for the said purpose and that one foot over bridge was also present at some distance from the spot which was not used by the victim for crossing the road. The testimony of PW2 shows that he has stated nothing about the rashness / negligence of accused at the time of driving.
21. In the present case, the accident admittedly took place on the Ring road where the permissible speed limit is 60 Km/ hr for light motor vehicle (LMV). As per the version of PW2 the accused was driving the vehicle at a speed of 5060 Km/ Hr indicating that the speed of the accused can not be said to high from any point of view so as to conclude that accused was rash.
It is settled law that merely driving at high speed does not amount to rashness or negligence as the speed is a relative concept consequence of which depends upon certain other parameters like the level of congestion at the place where the accident took place or as to whether there was some traffic violation. In this case, nothing has come on record qua the presence of other parameters. So, mere allegation that accused was rash or negligent or that he was negligent as the sound of the collision was very high without explaining the manner as to how rashness or negligence is being imputed to the conduct of the offending driver can by no stretch of imagination be considered sufficient to fasten criminal liability upon the accused as the phrase rashness or negligence unless explained is nothing more than a mere adjective.
22. In this case, PW1 did not say anything about the approximate speed of the accused's vehicle and PW2 who did not support the prosecution version also stated that the speed was 5060 Km/ hr which is well within the Page 18 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma permissible limit as discussed above. Furthermore, perusal of the testimony of PW1 further shows that he admitted in the cross examination conducted by the Ld. Counsel for the accused that there was no Zebra crossing at the spot and that the said spot is not used regularly by the residents of the colony in the night. It is also admitted by the PW1 that there was a divider on the road and there are plants on the said divider. It is also admitted fact that pedestrian / deceased was crossing the road from the said divider.
It is further observed from the testimony of PW5 ASI Anil Kumar, PW6 HC Summey Panwar and PW7 Sapan that the said witnesses admitted that there was no Zebra crossing or red light at the spot where the accident took place and that there is a foot over bridge at some distance from the spot.
The testimonies of the aforesaid witnesses to the effect that there was no Zebra crossing and the said spot was not used regularly for crossing the road as well as the fact that there were bushes / plants on the divider and there was no red light at the spot, imply that the deceased tired to cross the road from an unauthorized place indicating that contributory negligence on the part of the deceased can not be ruled out. It is also not the case of the prosecution that the victim was hit from behind by the offending vehicle so as to conclude that the accused was negligent perse.
So prosecution has failed to explain the manner in which the accused was rash and negligent while driving the vehicle and thus the benefit of the same must go to the accused.
23. It thus emerges from the aforesaid discussion and perusal of testimonies of PWs as well as record that there is neither any reliable eyewitness of the incident nor any other circumstance to prove that the accident was caused due to rashness or negligence on the part of accused while driving the offending Page 19 of 20 FIR No. 198/17 PS: I P Estate U/s 279/304A IPC State Vs. Vivek Sharma vehicle which are essential elements for completion of offences punishable u/s 279 & 304 A IPC.
24. Considering the aforediscussed testimonies, this Court is of the view that arguments advanced by the Ld. APP for the State that the prosecution has proved all the ingredients necessary for completion of the alleged offences do not have any force whereas the arguments made on behalf of defence that the accused has been falsely implicated are found to be justified.
25. In view of the aforesaid discussion and analysis of testimonies, it is clear that prosecution has not been able to prove its case against the accused as the essential ingredients of the offences punishable u/s 279 & 304 A IPC have not been established. Accordingly, accused Vivek Sharma, S/o Sh. Krishan Dev Sharma is acquitted of the charge leveled against him. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. Superdarinama if any be cancelled.
Fresh bail bond and surety bond in compliance of Section 437 (A) Cr.P.C filed on behalf of accused is furnished and accepted.
File be consigned to the Record Room after due compliance.
Digitally signedVIPLAV by VIPLAV DABAS DABAS 17:36:42 Date: 2019.10.23 +0530 Announced in the Open Court (VIPLAV DABAS) on 21.10.2019 MM03/CENTRAL:DELHI /21.10.2019 Page 20 of 20