Delhi District Court
State vs Mustfeej Ahmad on 23 November, 2023
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IN THE COURT OF MS. APOORVA RANA, M.M-10,
DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-007197-2021
Cr. Case 1426/2021
STATE Vs. MUSTFEEJ AHMAD
FIR No. 101/2020
P.S Kapashera
23.11.2023
JUDGMENT
Case No. : 1426/2021
Date of commission of offence : 18.03.2020
Date of institution of the case : 27.01.2021
Name of the complainant : Ms. Disha Verma
Name of accused and address : Mustfeej Ahmad
S/o Sh. Abdul
Hamid
R/o H. No. 34
Kambo, Marehera
Kushwa, Etah, U.P.
Offence complained of or proved : U/s 279/337 IPC.
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date of judgment : 23.11.2023
State Vs. Mustfeej Ahmad Page Nos.1 / 22
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BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused Mustfeej Ahmad (here-in-after referred to as the accused), pursuant to charge sheet filed qua him under Section 279/337 of the Indian Penal Code, 1860 (hereinafter IPC for sake of brevity) subsequent to the investigation carried out at P.S: Kapashera, in FIR no. 101/2020.
2. It is the case of the prosecution that on 18.03.2020, at about 08:00 a.m, at Dwarka Link Road, near Pushpanjali Farm Red Light, Delhi, the accused was found driving one Maruti Ertiga bearing registration no. HR69D8337, in a manner so rash or negligent so as to endanger human life and personal safety of others. Due to this act of the accused, the aforesaid vehicle struck against one car Swift Desire bearing no. HR55AH9061, resulting in simple hurt to person namely, Disha Verma. Consequently, an FIR was registered in the present case and after investigation, police filed the present charge sheet against the accused for commission of offence punishable u/s 279/337 IPC.
3. Complete set of charge sheet and other documents were supplied to the accused. Notice for offence punishable u/s 279/337 IPC was served to the accused to which he pleaded not guilty and claimed trial. Further, the accused, vide his statement u/s 294 Cr.P.C, had admitted the genuineness of copy of FIR No. 101/2020 along-with certificate u/s 65B of IEA Ex. A1(colly), DD No. 13A and 15A both dated 18.03.2020 Ex. A2 (colly) and State Vs. Mustfeej Ahmad Page Nos.2 / 22 3 notice u/s 133 MV Act as well as reply of owner Yashvir Ex. A3.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined six witnesses in total.
5. PW-1 was Dr. Yogender Kumar Yadav, who deposed that in the year 2020, he was posted as Senior Registrar Emergency Medicines, Manipal Hospital, Dwarka, New Delhi. On 18.03.2020, one patient namely Disha Verma came to emergency room where he gave her initial treatment and prepared the MLC. The MLC no. 509 regarding patient Disha Verma was prepared and patient came with alleged history of road traffic accident and stated that she was traveling in taxi as a passenger on a passenger seat and was hit by another car from side. There was no history of lost of consciousness, vomiting, seizure and ENT bleed. On examination, the patient was conscious and oriented. The vitals of the patient were stable and on physical examination, a 1.5 cm lacerated wound over left eyebrow and 0.5 cm lacerated wound inside upper lip (left side) were found. The patient got treatment from the hospital and after that, she was discharged and discharge summary was prepared by Dr. Navin Kumar Niraj. The said PW further deposed that he could identify the signatures of Dr. Navin Kumar Niraj as he had worked with him in the ordinary course of his duties. Through him, MLC was exhibited as Ex. PW1/A and discharge summary of patient prepared by Dr. Navin Kumar Niraj was exhibited as State Vs. Mustfeej Ahmad Page Nos.3 / 22 4 Ex. PW1/B.
6. PW-2 was Ms. Disha Verma, who deposed that on 18.03.2020, she was residing in Palam Vihar and was going to Taj Sats, Dwarka in cab no. HR55AH9061, Swift Desire which was an office cab. At about 8 a.m., when they reached at Bijwasan road, near Dwarka Link Road Traffic Signal, and while they were crossing on the green signal and taking a right turn, suddenly one car, Ertiga 8337, came in a very speedy manner and struck against her cab on the right side. Due to the impact, she got hurt and sustained injuries on her left eye- brow and inside her mouth and also sustained injuries on her left shoulder. Thereafter, the driver of the cab ran away from the spot and due to her injuries, she did not see him. The said PW then deposed that some stranger took her to Manipal hospital for treatment, where she got her treatment. Police also came to the hospital and started talking about settlement of the matter with the accused. At that time, she narrated the incident as occurred with her to the police officials. Thereafter, she gave her complaint to police officers on 19.03.2020 upom which, the FIR was registered by the police. Through her, her complaint was exhibited as Ex. PW2/A and photographs of the offending vehicle were exhibited as Ex. P1 (colly).
7. PW-3 was Sh. Chander Parkash, who deposed that on 20.03.2020, he was Mechanical Inspector and IO HC Jaipal Singh called him at the P.S for mechanical inspection of one Swift Dezire bearing registration no. HR55AH9061 and one Maruti Ertiga State Vs. Mustfeej Ahmad Page Nos.4 / 22 5 bearing registration no. HR69B8337. There, he conducted the mechanical inspection of the abovesaid vehicles. Through him, mechanical inspection reports of vehicles were exhibited as Ex. PW3/A (colly) and Ex. PW3/B (colly) and photographs of Swift Car were exhibited as Ex. P2(colly).
8. PW-4 was HC Jaipal, who deposed that on 18.03.2020, he received DD no.13A, after which he alongwith Ct. Manoj, went to Dwarka Link Road, Pushpanjali Farm Red Light, where he found two cars i.e. Swift Dezire bearing registration no. HR55AH9061 and Ertiga bearing registration number HR69D8337 in accidental condition. Upon inquiry, the said PW came to know that the injured had been taken to hospital in some private vehicle. In the meanwhile, he received DD no.15A after which he went to Manipal hospital, Dwarka and left Ct. Manoj at the spot. After reaching the hospital, he received MLC of injured Disha Verma. He also met the injured there who did not give her statement at that time. Thereafter, the said PW came back to the spot and took both the vehicles to the PS. Next day i.e., on 19.03.2019, he alongwith Ct. Manoj went to the house of injured where she gave her statement. PW4 thereafter deposed with respect to investigation carried out in the case. Through him, rukka was exhibited as Ex. PW4/A, site plan was exhibited as Ex. PW4/B, seizure memo of both the vehicles was exhibited as Ex. PW4/C and Ex. PW4/D, seizure memo of documents of the vehicle was exhibited as Ex. PW4/E and arrest memo was exhibited as Ex. PW4/F. State Vs. Mustfeej Ahmad Page Nos.5 / 22 6
9. PW-5 was Sh. Vikas Kumar, who deposed that on 18.03.2020, he was going to Tajsets at T-3 IGI Airport from Gurgaon in his taxi. One passenger namely Disha Verma was also sitting in his car on the back seat and he was driving the taxi. When they reached at Pushpanjali red light, he halted his car due to red signal. It was a T point. When the signal turned green, he moved his car for going in the right direction but suddenly one Ertiga car came from the right side of the T point and hit his car. He deposed that the Ertiga car came after jumping the red light. Both, the said PW and the passenger namely Disha Verma, got injured. The door of the car also got stuck. Some public persons came there and helped the passenger, Disha Verma, out of the car. He also came out of the car. The said PW deposed that the driver of the Ertiga car left the car at the spot and ran away. After some time the driver of the offending vehicle came at the spot and revealed his name as Mustfeej Ahmad and told him that he got frightened and that is why he had run from the spot. The said PW also called the PCR. By the time police came at the spot, accused Mustfeej Ahmad had left the spot again. PW5 also deposed that the registration number of his vehicle was HR 55 AH 9061 and registration number of the offending vehicle was HR 69 D 8337.
10. PW-6 was HC Manoj Kumar, who deposed that on 18.03.2020, he was on emergency duty from 08.00 AM to 08.00 PM. On that day, HC Jaipal received DD no. 13A regarding accident. He alongwith HC Jaipal reached at the spot i.e. Pushpanjali Farm, Dwarka Link Road at around 08.15 AM. However, there was nobody else. Later on, they received a call State Vs. Mustfeej Ahmad Page Nos.6 / 22 7 from Manipal Hospital that the complainant was admitted there. HC Jaipal left for Manipal hospital to take the MLC and the said PW remained at the spot. The said PW also deposed that by the time HC Jaipal reached at the hospital, the complainant had left from the hospital. However, HC Jaipal received the MLC from the hospital. PW6 thereafter deposed with respect to investigation carried out in the present case.
11. On account of admission of accused u/s 294 Cr.P.C, PW at serial no. 3 Sh. Yashbir, as per list of prosecution witnesses was dropped from the list of prosecution witnesses and the formal proof of the documents sought to be proved by him was dispensed with.
12. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
13. Statement of the accused u/s 281 Cr.P.C read with Section 313 Cr.P.C. was recorded separately in which all the incriminating circumstances appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him and stated that he has been falsely implicated in the case. Accused further opted to not lead evidence in his defence, hence DE was closed.
State Vs. Mustfeej Ahmad Page Nos.7 / 22 8FINAL ARGUMENTS:
14. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence u/s 279/337 has been proved beyond doubt.
15. Per contra, Ld. Counsel for accused argued that the accused has been falsely implicated in the present case and that there is no evidence against him showing his liability in the present case and thus, he is entitled to be acquitted in the present case. It has also been argued that there are material contradictions and lacunae/inconsistencies in the version of the prosecution due to which the prosecution has not been able to prove its case beyond reasonable doubt against the accused.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
16. Arguments adduced by Ld. APP for State and accused have been heard. The evidence and documents on record have been carefully perused.
17. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused Mustfeej Ahmad has been indicted for the offence u/s 279/337. Section State Vs. Mustfeej Ahmad Page Nos.8 / 22 9 279 IPC provides punishment for offence of driving a vehicle in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person; and section 337 IPC provides punishment for causing hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others. To drive home the guilt of the accused under section 279/337 in road accident cases, following ingredients are required to be proved:- a). That the accused was the person who was driving the offending vehicle at the time when the accident occurred. b). That the accused drove the vehicle in a rash and negligent manner. c). That hurt to the victim was the direct and proximate cause of the injuries suffered by way of rash and negligent driving of the accused.
18. A bare reading of the aforesaid provisions indicates that the main ingredient upon which the said offences hinge upon is that the act of the accused should be done in a rash or negligent manner. These words "Rash" and "Negligent" have not been defined in the IPC. However, the meaning of the said terms have been exhaustively delineated by way of various judicial pronouncements. In Empress v. Idu Beg, (1881) ILR 3 All 776, Straight, J. made the following pertinent observations which have been quoted with approval by various Courts, including the Apex Court:
"Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the State Vs. Mustfeej Ahmad Page Nos.9 / 22 10 consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted".
Similarly, in Mohammed Aynuddin @ Miyam vs State Of Andhra Pradesh (2000 SC), the Hon'ble Apex Court has inter alia held the following:
"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."
Again, it has been held by Hon'ble Supreme Court of India in Rathnashalvan vs State Of Karnataka (2007 SC) that:
"Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering State Vs. Mustfeej Ahmad Page Nos.10 / 22 11 all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused."
19. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal.
20. Now, from perusal of the testimony of the various prosecution witnesses as well as the overall defence taken by the accused in the present matter, including at the time of recording of statement of accused under section 281 Cr.P.C read with section 313 of Cr.P.C, it can be conclusively said that the accident in question had occurred; that the injured Disha Verma had sustained injuries owing to the said accident; and that the accused was the driver of the offending vehicle at the relevant time. During the entire course of evidence, the aforesaid facts have not even been once denied on behalf of the accused.
21. In such a scenario, where the fact that the accident had occurred resulting in injuries to PW2/injured Disha Verma, as alleged, and that the accused was the driver of the offending vehicle at the relevant time has been proved, only the following State Vs. Mustfeej Ahmad Page Nos.11 / 22 12 issue remains to be determined:
(i) Whether the said accident was caused by the rash and negligent act of attributable to the accused by virtue of his being the driver of the offending vehicle at the relevant time.
22. To establish the aforesaid fact, the only witnesses whose testimony is relevant in this regard is that of PW2 and PW5, that is the complainant herself and the driver of the victim vehicle, respectively, as they were the sole eye witnesses to the incident in question. However, a careful reading of their testimonies, alongwith testimony of the IO and other prosecution witnesses, brings to light certain glaring inconsistencies and lacunae in the prosecution case, as discussed hereinafter.
a. First and foremost, it is pertinent to note that there is a delay of about one and a half days in the registration of FIR in the present case as, the incident is reported to have occurred on 18.03.2020 at around 08:00 AM, while the FIR in the case came to be registered only on 19.03.2020 at about 04:52 PM. During his testimony, IO PW4 deposed that the complainant/injured did not give her statement with respect to the incident in question at the time when he had gone to the hospital upon receiving her MLC, however on the next day, i.e., on 19.03.2019, he went to the house of the injured where she gave her statement. Further, during his cross-examination the said PW deposed that settlement talks between the parties were underway and when the same State Vs. Mustfeej Ahmad Page Nos.12 / 22 13 failed, the FIR in the present case was registered. However, perusal of testimony of PW2/injured Disha Verma does not reflect the fact that she had engaged in any settlement talks with the accused owing to which she had not given her statement to the police earlier. In fact, she deposed that she was discharged from the hospital on the very same day, i.e., on 18.03.2020 but did not specify any reason for not giving her statement to the police on that day. At this juncture, it would be apposite to refer to the following observations of the Hon'ble Supreme Court in case titled as Dilawar Singh vs State Of Delhi (2007 SC):
"8. In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case."
b. Furthermore, as apparent from the testimony of PW2/injured Disha Verma, allegations regarding rash and negligent act on part of the accused have been constituted from the fact that the offending vehicle came in a very speedy manner and struck against the cab in which the said PW was travelling, owing to which, she sustained the alleged injuries. In fact, during State Vs. Mustfeej Ahmad Page Nos.13 / 22 14 her cross-examination, she also deposed that the speed of the offending vehicle was so high that even after its driver had applied the brakes, the said vehicle could not be controlled and struck against her cab. Now, how the injured/PW2 arrived at this approximation of speed at which the accused was driving the vehicle in question, is obscure. It is not the case of the IO that he had made efforts to observe any skid marks/tyre marks on the accident spot or that he had examined any speed checker/radar installed in/around the spot to ascertain the approximate speed of the offending vehicle at the time of the accident and had thereby concluded that the offending vehicle was being driven at a speed higher than the prescribed limit. In fact, neither has it surfaced on record as to what was the required speed limit on the road in question, nor has the complainant or the injured stated the speed at which the offending vehicle was being driven. In fact, during her cross-examination, when she was questioned on the aspect of the speed at which her cab was being driven, she deposed that she could not tell the speed of her cab at the relevant time as she was not driving the same, however simultaneously stated that the cab was moving at slow speed. As a corollary, it would not be out of place to presume that PW2 could not have had an estimation of the speed of the offending vehicle as well, especially when the collision occurred in a sudden manner. In such circumstances, it would be improper to impute allegations to the effect that the offending vehicle was speeding past the limit on the route on which it was being driven. Other than this, PW2 has failed to delineate any other manner in which the accused was driving the offending vehicle. In such backdrop of facts, the same could have State Vs. Mustfeej Ahmad Page Nos.14 / 22 15 been only determined from the surrounding circumstances that existed at the relevant time. However, admittedly, PW2/complainant sustained simple injury and was even discharged from the hospital on the same day. Further, though the driver of her cab i.e., PW5 stated that he too had suffered injury owing to the collision, however, there is no medical record/MLC suggesting the nature of injury suffered by him. As regards the nature of injury, he deposed that he had suffered only minor injury on his right leg and did not undergo any treatment and also did not get himself medically examined. This would not have been possibly so if the offending vehicle was being driven at an excessively high speed, imputing rashness on the part of accused as a necessary inference. Now, it is trite law that allegation regarding the offending vehicle being driven at high speed alone, in itself cannot tantamount to act of rashness or negligence. In this regard, it would be apposite to advert to the ruling of the Hon'ble Apex Court in State of Karnataka v. Satish (1998) 8 SCC 493, wherein, the following was observed:-
"4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the State Vs. Mustfeej Ahmad Page Nos.15 / 22 16 absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur"."
Further, the Hon'ble High Court of Delhi in Abdul Subhan Vs. State (NCT of Delhi), 2006 Delhi HC, observed as follows:-
"The aforesaid observations of the Supreme Court make it more than clear that a mere allegation of high-speed would not tantamount to rashness or negligence. In the present case also, I find that apart from the allegation that the truck was being driven at a very high-speed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent. In any event there is no description or approximation of what was the speed at which the truck was being driven. The expression "high-speed" could range from 30 km per hour to over 100 km per hour. It is not even known as to what the speed limit on Mathura Road was and whether the petitioner was exceeding that speed limit. Therefore, in the absence of material facts it cannot be said, merely because there is an allegation that the petitioner was driving the truck at a high-speed, that the petitioner is guilty of a rash or negligent act. Clearly the petitioner cannot be convicted on the sole testimony of PW 3 which itself suffers from various ambiguities."
Therefore, in light of the aforesaid observations, it is amply clear that mere allegation of the offending vehicle being driven at a high speed alone, would not suffice to draw an inference of act of rashness or negligence by the accused. Specific and cogent evidence has to be led by the prosecution in order to drive home this point by establishing the manner in which the offending vehicle was being driven, which is missing in the present case. Also, in light of the nature of injuries suffered by PW2 and PW5, even the impact of collision in this case cannot per se be determined with certitude, as would in itself speak of the rash State Vs. Mustfeej Ahmad Page Nos.16 / 22 17 and negligent act of the accused. No other attending circumstances as well are either apparent from record or from testimonies of victims in the case, as would necessarily point to negligence of accused being a logical conclusion rather than it being proved by providing an outright demonstration thereof.
c. Having observed the above, it is imperative to note that there is discrepancy in the version of prime witnesses PW2 and PW5 as regards the allegations of rashness and negligence on the part of the accused in driving the offending vehicle. While, as noted above, PW2 deposed that the offending vehicle was being driven at a very high speed and suddenly struck against the cab in which she was travelling, however, PW5, i.e., the driver of the victim cab, to the contrary deposed that the offending vehicle had jumped the red light signal while coming from the right side at the T-point and struck against his car. It is not his case that the offending vehicle was being driven at a high speed owing to which the collision had occurred, which fact is thus, inconsistent with that of PW2.
d. Furthermore, there is also incertitude with respect to the direction in which the car of the victim was going. On one occasion, PW5 deposed that he was going towards Dwarka underpass and later again said that he was going towards T3 IGI airport. In fact, PW2 Disha Verma also deposed that she was going towards Dwarka in the cab and did not mention even once that she was going towards T3 IGI airport. Moreover, it is the version of both PW2 and PW5 that they were turning in the right State Vs. Mustfeej Ahmad Page Nos.17 / 22 18 direction at the spot when the offending vehicle came and struck against their cab. However, in his testimony, IO PW4 explicitly deposed that there was a divider on the road near the spot and the same was not broken from anywhere. The said statement of the IO is also in consonance with the site plan Ex. PW4/B. IO also deposed in his cross-examination that the car of the accused was coming from Shiv Murti side and going towards Dwarka underpass and that the car of the victim was also going towards Dwarka underpass. Not only this, IO even admitted in his cross examination that it was not possible for the driver of the Swift Dzire car (the victim car) to cross the road as there was a divider on the road at the spot. In such a scenario, how the driver of the victim car could take a right turn near the spot is shrouded with doubts in either case, i.e., if the said car was going towards IGI Airport or if it was going towards Dwarka. Also, there is a contradiction in the version of PW2 and PW4 on the aspect as to when, the victim had narrated the incident in question to the police. While, PW2 deposed that when the police came to the hospital, she had narrated the incident as occurred with her to the police officials, however, PW4 IO HC Jaspal deposed that when he met the injured at the hospital, she did not give her statement at that time. Such inconsistencies in the version of the prosecution witnesses raise suspicion with regard to the manner in which the incident is alleged to have occurred.
e. In addition to the above, there are further incongruities in the version of various PWs as regards the incidents/circumstances which unfolded immediately after the State Vs. Mustfeej Ahmad Page Nos.18 / 22 19 occurrence of the incident in question, as discussed hereinafter. Firstly, PW5 deposed that after the collision, the door of his car got stuck and some public persons came there and helped victim Disha Verma come out of the car. However, no such account has been given by PW 2 Disha Verma in her testimony. Furthermore, during her cross-examination, PW2 deposed that some stranger had taken her to the hospital after the incident in question had occurred and also stated that when the police arrived at the hospital, the said stranger was also there at the hospital and was discussing things with police official. However, no statement in this regard has been made by any of the police witnesses examined on behalf of the prosecution about their meeting at the hospital with the person who had taken the victim there. Additionally, it was revealed by PW5 in his testimony that the driver of the offending car had returned to the spot once after the collission and had disclosed his name to the said PW and thereafter when PW5 called the PCR and before police arrived at the spot, the accused left the spot again. This factum of return of the accused to the spot has surfaced for the first time in the testimony of PW5. Further, the said version of PW5 appears to be incredible in as much as no explanation is forthcoming on behalf of the said PW as to why no effort was made by him or any other public persons apparently present at the spot to detain the driver of the offending vehicle at the spot, till the police arrived there. The aforesaid incongruities create a fatal dent in the prosecution story, rendering the version of the complainant as well as that of PW5 improbable.
State Vs. Mustfeej Ahmad Page Nos.19 / 22 20f.) Moving on, even investigation in the present matter appears to have been conducted in a callous and lackadaisical manner. First and foremost, it was deposed by PW5 in his cross examination that the site plan seem was prepared by the IO while sitting at the PS, thus implying that the site plan was not prepared at the instance of the complainant/eye witness on the spot, which is a material dereliction on part of the IO. Much importance has been rendered to proper preparation of site plan of the spot in cases of accident by various Hon'ble High Courts and the Hon'ble Apex Court, with one such ruling relied upon, being, Abdul Sudhan Vs. State (NCT of Delhi), 2006 Delhi HC. To further add to the woes of the prosecution, IO failed to join any public person as a witness in the present case. The accident in question evidently appears to have occurred at a public place and it is the version of the complainant as well as that of PW5 that public persons had helped them after the accident. In fact, the victim was taken to the hospital by some unknown person. However, no such person has been interrogated / examined during the entire course of investigation, let alone, having been made a witness in the case. This Court is conscious of the legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC
696. However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As observed above, the testimony of the aforesaid witnesses in the present case is not worthy of credit. In such a situation, State Vs. Mustfeej Ahmad Page Nos.20 / 22 21 evidence of an independent witness would have rendered the much needed corroborative value, to the otherwise uncompelling case of the prosecution, as discussed above. The absence of independent witness of the accident in question further raises suspicion about the genuineness of the allegations and the actual manner of occurrence of the accident due to the rash and negligent act of the accused. Further, there aren't even any photographs of the spot on the record.
23. Apart from the above, the testimony of no other wit- ness touches upon the aspect of the incident in question having been actually witnessed by anyone or the accused being defi- nitely responsible for the accident in question. Though, it appears that the victim has suffered injuries as mentioned on record, the prosecution has not been able to prove with certitude that the same were a result of the accident which had occurred due to rash and negligent act of the accused. There is no gainsaying that if two reasonably probable and evenly balanced views of the evi- dence are possible, one must necessarily concede to the existence of a reasonable doubt. In view of the glaring embellishments in the statements of the prosecution witnesses, the possibility that the complainant has falsely implicated the accused for the afore- said offence, cannot be ruled out and prosecution cannot be said to have proved beyond reasonable doubt that the accident in question had occurred due to the rash and negligent act of the ac- cused.
24. Accordingly, this Court hereby accords the benefit State Vs. Mustfeej Ahmad Page Nos.21 / 22 22 of doubt to the accused for the offence u/s 279/337 and holds the accused not guilty of commission of the said offence. Accused Mustfeej Ahmad is thus, acquitted of the offence u/s 279/337 IPC.
25. Copy of this judgment be given free of cost to the accused.
Announced in the open court on 23.11.2023, in presence of accused and Ld. Counsel for accused.
(APOORVA RANA) M.M-10/Dwarka Courts/23.11.2023 It is certified that this judgment contains 22 pages, all signed by the undersigned.
(APOORVA RANA) M.M-10/Dwarka Courts/23.11.2023 State Vs. Mustfeej Ahmad Page Nos.22 / 22