Delhi District Court
State vs Jitender Kumar on 6 May, 2025
COPY OF THE JUDGMENT OF (CONVICTION/DISMISSAL/REVERSAL
OF ACQUITTAL/DISMISSAL OF BAIL APPLICATION)
______________________________________________________
COVERSHEET TO THE COPY OF JUDGMENT
The convict has been informed that the convict may avail free legal aid facilities
for pursuing higher remedies, for which they may contact for seeking
appropriate guidance:
Central Delhi Legal Services Authority
Address of the Authority: Room No. 287, Second Floor, Tis Hazari Courts,
Delhi - 110054
Phone Number: +91 9667992791, +91 1123933231
E-mail: [email protected].
Digitally signed
NEHA by NEHA GOEL
Date:
2025.05.06
GOEL 17:12:15
+0530
(Signature of Presiding Officer)
Date:-06.05.2025
CC No. 288552/2016 State Vs. Jitender Kumar Page 1 of 22
IN THE COURT OF MS. NEHA GOEL, JUDICIAL MAGISTRATE FIRST CLASS,
NI ACT-02, CENTRAL, TIS HAZARI COURTS, DELHI
CNR No. DLCT020000602002
Case No.: 288552/2016
FIR No.: 333/2001
U/S: 279/337/304A/199/120B IPC
P.S.: Civil Lines
STATE VS. JITENDER & ANR.
JUDGMENT
1. Sl. No. of the case 288552/2016
2. Date of institution of the case 31.05.2002
3. Name of accused (s), 1. Naveen Jain s/o Late Sh. Raj Kumar r/o parentage and address 17/28, Shakti Nagar, Delhi-110007.
2. Jitender Kumar s/o Sh. Jagannath r/o 105/23, Gali No. 113, Sant Nagar, Burari, Delhi.
4. Offence complained of or Section 279/337/304A IPC & 199 IPC proved
5. Date of commission of 17.11.2001 offence
6. Plea of accused Both accused pleaded not guilty
7. Final order Both accused stand convicted.
8. Date of pronouncement 06.05.2025 Digitally signed by NEHA NEHA GOEL CC No. 288552/2016 State Vs. Jitender Kumar Page 2 of 22 GOEL Date:
2025.05.06 17:12:22 +0530 BRIEF REASONS FOR THE DECISION OF THE CASE
1. Case of the prosecution: Briefly stated, the case of the prosecution is that the Complainant/Informant in the present case is Anil s/o Sh. Duli Chand and he used to collect clothes for the purpose of washing them at his residence. On 17.11.2001, he collected clothes from bungalows of Rajpur Road, Civil Lines for the purpose of washing and kept those clothes in a rickshaw and proceeded towards Kashmere Gate. The rickshaw laden with clothes was in front of the cycle of the Complainant/Informant. Complainant/Informant was riding the cycle. At around
09.00 pm, Complainant/Informant reached 21, Rajpur Road and saw one car having no. DL1CG5480 coming at a very fast speed. This car hit one man and dragged him and also hit the rickshaw having the clothes. Some person made PCR call. The man who was hit by the above-mentioned car was taken to Hindu Rao Hospital through PCR van. The driver of the said car left his car and ran away from the spot without telling his name. Accordingly, the present FIR was lodged in this matter under Section 279/337 IPC against unknown accused.
2. Chargesheet and Cognizance: After investigation, chargesheet was filed against accused Naveen Jain and Jitender Kumar and cognizance of offence under Section 279/337/304A/199 IPC was taken by Court vide order dated 31.05.2002 and both accused persons were summoned.
3. Appearance of Accused and supply of copy : On 17.01.2004, Accused Naveen Jain appeared and was granted bail and was supplied copy of chargesheet and documents. On 13.07.2004, Accused Jitender Kumar appeared and was granted regular court bail and was supplied copy of chargesheet and documents. Matter was fixed for arguments on charge.
4. Framing of charge: Thereafter, charge was framed against accused Naveen Jain on 18.12.2010 u/s 279/337/304A/199/120B IPC. Charge was framed against accused Digitally signed by CC No. 288552/2016 State Vs. Jitender Kumar Page 3 of 22 NEHA NEHA GOEL GOEL Date:
2025.05.06 17:12:27 +0530 Jitender Kumar u/s 199/120B IPC on 18.12.2010, to which they pleaded not guilty and claimed trial. Matter was put up for prosecution evidence.
5. Prosecution evidence: Following witnesses have been examined by prosecution:-
LW NO. Name of witness PW NO.
1 Anil S/o Duli Chand 1
2 Uday Kumar Nath S/o Late Sh. 3
Kailash Nath- Brother of deceased
Rakesh Nath.
3 Sanjay 10
4 Nand Kishore Dropped on 19.07.2018.
5 Ajay Aggarwal Dropped on 19.07.2018.
6 Constable Vinod Kumar 4
7 Ct. Dharambir Singh 11
8 ASI/Tech. Devender Kumar 9
9 Tarun Nath 6
10 Ct. Prem Ram 5
11 Dr. Darbari Lal Dropped on 21.03.2018
12 Dr. Akash Jhanjee Dropped on 21.03.2018
13 SI/Duty Officer Saket Kumar 2
14 SI Jagdish Prasad 7
15 SI Hansraj 8
16 Hemant Chopra Dropped on 30.01.2018
17 Sudesh Kumar Dropped on 04.09.2019
Digitally
signed by
CC No. 288552/2016 State Vs. Jitender Kumar Page 4 of 22 NEHA
NEHA
GOEL
GOEL Date:
2025.05.06
17:12:33
+0530
6. Documentary evidence: Following documents have been exhibited by the prosecution :-
S. Description Exhibit No.
No.
1 Statement of Anil s/o Duli Chand Ex. PW1/A
2 Seizure memo dated 17.11.2001 of Hyundai Car Ex. PW1/B
DL1CG5480
3 Seizure memo dated 17.11.2001 by which rickshaw Ex. PW1/C
was seized.
4 1. Application for request to supply copy of TIP Mark X1 proceedings dated 05.01.2002
2. Statement of Anil s/o Duli Chand dated 05.01.2002 from Inner case diary 5 Photographs Ex. P1 to P3 (colly) 6 FIR No. 333/2001 dated 17.11.2001 got lodged by Ex. PW2/A Anil S/o Duli Chand.
7 Statement of Anil s/o Duli Chand Ex. PW2/B 8 Identification memo dated 18.11.2001 of the Ex. PW3/A deceased Sh. Rakesh Nath S/o Late Sh. Kailash Nath.
9 Handing over memo dated 18.11.2001 of dead body Ex. PW3/B of deceased Sh. Rakesh Nath S/o Late Sh. Kailash Nath.
10 Arrest memo of accused no. 2 Jitender Kumar dated Ex. PW4/A
19.11.2001.
CC No. 288552/2016 State Vs. Jitender Kumar Page 5 of 22 Digitally signed by NEHA NEHA Date:
GOEL GOEL 2025.05.06 17:12:37 +0530 11 Personal Search Memo of accused no. 2 Jitender Ex. PW4/B Kumar dated 19.11.2001.
12 Seizure memo of driving license of accused no. 2 Ex. PW4/C Jitender Kumar dated 19.11.2001 vide which his driving licence was seized.
13 Identification memo dated 18.11.2001 of the Ex PW6/A deceased 14 Statement of Anil s/o Duli Chand Ex. PW7/A 15 Site Plan dated 17.11.2001 Ex. PW7/B 16 Notice u/s 133 MV Act dated 18.11.2001 addressed Ex. PW7/C to accused Naveen Jain 17 Reply to notice u/s 133 MVA dated 19.11.2001 by Ex. PW7/D accused Naveen Jain 18 Notice u/s 91 CrPC dated 13.11.2001 to accused Ex. PW7/E Naveen Jain 19 Letter dated 23.11.2001 of accused Naveen Jain Ex. PW7/F 20 Arrest memo of accused Naveen Jain dated Ex. PW8/A 15.12.2001.
21 Personal search memo of accused Naveen Jain dated Ex. PW8/B 15.11.2001 (wrongly stated to be 15.11.2001).
22 Seizure memo of license of accused Naveen Jain Ex. PW8/C dated 15.12.2001 23 Complaint u/s 195 CrPC dated 13.05.2002 by Ex. PW8/D Hemant Chopra ACP 24 Application for request to supply copy of TIP Mark X Digitally CC No. 288552/2016 State Vs. Jitender Kumar Page 6 of 22 signed by NEHA NEHA GOEL Date:
GOEL 2025.05.06 17:12:42 +0530 proceedings dated 18.12.2001 25 Mechanical Inspection of car No. DL1CG5480 Ex. PW9/A dated 18.11.2001 26 MLC No. 8539/01 dated 17.11.2001 of Admitted by patient/deceased Rakesh Nath accused Naveen Jain and Jitender Kumar u/s 294 CrPC on 21.03.2018.
27 Post mortem report no. 1667/01 of deceased Rakesh Admitted by
Nath dated 18.11.2001 accused Naveen
Jain and Jitender
Kumar u/s 294
CrPC on
21.03.2018.
28 TIP proceedings report conducted by Sh. Sudesh Ex. A1, admitted Kumar, Ld. MM, THC by accused Naveen Jain and Jitender Kumar u/s 294 CrPC on 04.09.2019
7. PE was closed vide order dated 24.05.2023 as per the submissions of Ld. APP on behalf of the State. Matter was put up for recording statement of both Accused u/s 313 CrPC.
8. Ld. Counsel for both Accused persons filed an application u/s 311 CrPC for recalling PW7 on 23.08.2024. The said application was allowed vide order dated 13.09.2024. PW7 was further cross examined and discharged u/s 311 CrPC on CC No. 288552/2016 State Vs. Jitender Kumar Page 7 of 22 Digitally signed by NEHA NEHA Date:
GOEL GOEL 2025.05.06 17:12:47 +0530 30.11.2024. Matter was again put up for recording statement of both accused u/s 313 CrPC.
9. Statement of Accused u/s 313 CrPC : Thereafter, statement of Accused Naveen Jain and Accused Jitender Kumar was recorded under Section 313 Cr.P.C. on 15.01.2025, wherein both the Accused persons denied the evidence led against them. Accused Naveen Jain submitted that he wishes to lead DE. Accused Jitender Kumar submitted that he does not want to lead DE. Matter was put up for DE.
10.Defence evidence: On 10.03.2025, DE of Accused Naveen Jain was closed vide his separate statement as he did not want to lead any DE. Matter was put up for final arguments.
11.Final arguments have been heard on behalf of all parties.
12.Ld. APP for State has placed reliance upon Paras Nath Vs. State NCT of Delhi (2003(3) JCC 1500) passed by Hon'ble High Court of Delhi on 22.04.2003.
13.Ld. Counsel for Accused has placed reliance upon Manish Kumar Vs. State NCT of Delhi (Crl. Rev. P. 873/2022) decided by Hon'ble High Court of Delhi on 01.04.2025 and The State GNCT of Delhi Vs. Azad Singh (Crl. A No. 190 of 2018) decided by Hon'ble High Court of Delhi on 18.01.2023.
14.I have perused the record and gone through the judgments.
The incident
15.Anil s/o Duli Chand (Complainant/eye-witness, PW1 from here on) has deposed that he lives at Kashmere Gate and is a washerman by profession. The date of the incident which is 17.11.2001 has been wrongly stated in the deposition of PW1 as 17.10.2001 but the same is being ignored as a typographical error. PW1 has deposed that after collecting the clothes from the various houses, he was going back to his house in a rickshaw via Rajpura Road to Kashmere Gate. At about 9 Digitally CC No. 288552/2016 State Vs. Jitender Kumar Page 8 of 22 signed by NEHA NEHA GOEL GOEL Date:
2025.05.06 17:12:52 +0530 pm, he reached Rajpur Road and saw one car coming at a high speed from the side of Rajpur Authority. This car hit his rickshaw from behind as a result of which his rickshaw turtled down, clothes in the rickshaw got struck into the engine of the said car and got torn out.
16.Even after refreshing memory and cross examination by Ld. APP for State, PW1 stated that he cannot say whether the offending vehicle hit one person who was crossing the road on foot and cannot say the registration number of offending vehicle on the ground that he is illiterate. He failed to identify the offending vehicle from three photographs Ex. P-1 (colly) and failed to identify any accused in the Court on the ground that he could not see the face of accused as it was dark/night time.
17.However, at the same time, PW1 has stated that PCR van came to the spot and took someone to hospital but he does not know who the said person was. He has also denied the suggestion that the offending car was not being driven in a high speed and rash and negligent manner or that no such incident took place in his presence.
18.Here, the deposition of Sanjay s/o Uday Sar Mandal (PW10 from here on) becomes extremely crucial as he is the second eye witness in the present case and he also got injured due to the accident.
19.PW10 deposed that he used to ply rickshaw in the year 2001. The date of the incident which is 17.11.2001 has been wrongly stated in the deposition of PW10 as 17.10.2001 but the same is being ignored as a typographical error. Similarly, name of complainant is Anil S/o Duli Chand but has been stated to Anil Garg in the deposition of PW10. The same is being ignored as a typographical error and also the fact remains that PW10 also deposed after a good 20 years.
20.PW 10 has stated that on the day of incident, he was going towards Kashmere Gate from Rajpur Road along with bundle of clothes of one person namely Anil Garg CC No. 288552/2016 State Vs. Jitender Kumar Page 9 of 22 Digitally signed by NEHA NEHA GOEL Date:
GOEL 2025.05.06
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+0530
and Anil Garg was coming behind him on bicycle. PW10 has deposed that when he reached at Rajpura Road at about 9.00 P.M., one car bearing no. DL 1 CG 5480 came from the side of Rajpur Authority and hit the pedestrian who was crossing the road and dragged him and, thereafter, the offending vehicle hit his rickshaw when he was trying to flee away from the spot due to which both the tyres of his rickshaw got turtled. He has further deposed that he sustained injuries after falling on the roof of the offending car and the offending car got stuck on the bundles of clothes which were kept in his rickshaw and PW10 fell down from the roof of the car. He has further deposed that public persons had gathered on the spot and accused driver fled away from the spot. He has further deposed that in the meantime, police officials came on the spot and thereafter, PW 10 was shifted to the Hindu Rao Hospital. He has further deposed that thereafter, police inquired from him and recorded his statement. PW10 failed to identify any accused in the Court on the ground that he could not see the face of accused as it was dark/night time.
21.The identity of the deceased has been established to be that of Rakesh Nath S/o Late Sh. Kailash Nath by the evidence of Uday Nath S/o Late Sh. Kailash Nath (PW3) and Tarun Nath s/o Uday Nath (PW6). PW3 has identified his signatures on Identification memo dated 18.11.2001 (Ex. PW3/A) and Handing over memo dated
18.11.2001 (Ex. PW3/B). PW6 has identified his signatures on body identification memo dated 18.11.2001 (Ex. PW6/A).
22.It is a settled law that in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge to consider the fact in each case whether as a result of such examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and CC No. 288552/2016 State Vs. Jitender Kumar Page 10 of 22 Digitally signed by NEHA NEHA Date:
GOEL GOEL 2025.05.06 17:13:00 +0530 considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy/dependable and act upon it after careful scrutiny. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited the Judge should, as a matter of prudence, discard his evidence in toto. The evidence of a hostile witness cannot be discarded as a whole merely because the prosecution chose to treat him as hostile and cross examine him. The relevant parts thereof, which are admissible in law, can be used by the prosecution or the defence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused. There is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence.
23.Evidence giving process should not bog down to memory tests of witnesses. PW1 came to depose in 2012 and thereafter in 2018, i.e. a good 12-18 years after the incident had already taken place and it would be unreasonable to expect the witness to remember every minute detail of the said incident. Therefore, the evidence of PW1 has to be appreciated in that context.
24.In the present case also, the evidence of PW1 cannot be treated as washed off the record altogether as even though he has shown obliviousness as to certain facts i.e. hitting of one person on foot by offending vehicle, registration number of offending vehicle and identity of driver of the offending vehicle but at the same time has remained consistent as to rest of the story and has been corroborated by PW10 in proving the case of the prosecution to the extent that at about 9 PM at Rajpur Road, the rickshaw of PW1 having clothes was hit by a car coming at a high speed being driven in a rash and negligent manner as a result of which the rickshaw turtled down, clothes in the rickshaw got struck into the engine of the said car and got torn out. Therefore, PW1 does not stand discredited and can still be Digitally signed by CC No. 288552/2016 State Vs. Jitender Kumar Page 11 of 22 NEHA NEHA GOEL Date:
GOEL 2025.05.06
17:13:04
+0530
believed in regard to a part of his testimony wherein he has supported the prosecution.
25.Ld. Counsel for accused no.1 Naveen Jain has argued that PW10 absconded from the hospital and was never examined. The argument made by Ld. Counsel for accused no. 1 Naveen Jain is untenable. PW1 was not examined either by the prosecution or by any of the accused qua the presence of PW10 at the spot. But that does not make the presence of PW10 doubtful at the place of incident as he is the injured eye witness. ASI Prem Ram (PW5) and ACP Jagdish Prasad (PW7) both have deposed that PW10 who was the rickshaw puller was also injured and was admitted in Hindu Rao hospital. Even though MLC of PW10 was obtained by IO but could not meet him as he left the hospital without further treatment and his statement was recorded after 2-3 days after the incident. This MLC is on record but has not been exhibited by the prosecution. PW 10 has deposed that he was carrying the clothes in the rickshaw of PW1 who was coming from a cycle behind him. Infact, PW10 has not been cross examined by any of the accused persons despite opportunity. In view of the settled law on this aspect, non-cross examination of the witness leads to admission of the case on part of the accused. (Reliance has been placed on Laxmi Bai Through LRs and Another Vs Bhagwant Bua Through LRs and Others [2013 SCC OnLine SC 101] and Ravinder Singh Vs State (NCT of Delhi) [2012 SCC OnLine Del 1869]. Furthermore, it is settled law that testimony of injured eye witness is of great value.
26.Thus, no discrepancy remains that PW1 was riding a bicycle and PW10 was pulling the rickshaw when the incident took place.
Identity of offending vehicle
27.PW1 identified his signatures on Seizure memo dated 17.11.2001 of Hyundai Car DL1CG5480 (Ex. PW1/B). The seizure memo states that the front glass of the car was broken. PW1 has also identified his signatures on Seizure memo dated CC No. 288552/2016 State Vs. Jitender Kumar Page 12 of 22 Digitally signed by NEHA NEHA GOEL Date:
GOEL 2025.05.06
17:13:08
+0530
17.11.2001 by which rickshaw was seized (Ex. PW1/C). The seizure memo states that both the back wheels of the rickshaw were broken.
28.During cross examination by Ld. Counsels for accused persons, PW1 stated that police obtained his signatures on blank papers at PS and all the proceedings of this case have been done in police station.
29.However, ACP Jagdish Prasad (PW7) and ASI Prem Ram (PW5) have both deposed that the rickshaw and the offending vehicle bearing no. DL 1CG5480 were seized from the spot on 17.11.2001 vide seizure memo Ex. PW1/C and Ex. PW1/B respectively. Both of them identified their signatures on both the documents. Both have deposed that rickshaw and the offending vehicle bearing no. DL 1CG5480 were deposited in Malkhana. Both have identified the offending vehicle as Hyundai Accent bearing No. DL1CG5480 from three photographs (Ex. P1 to P3, colly).
30.The identity of the offending car is corroborated by the evidence of Uday Kumar s/o Late Sh. Kailash Nath who has deposed that he saw the said car at the police station which was impounded by the police and there were dent/damages and blood stains on the said car i.e. at its front body, registration number of the vehicle was DL-1CG-5480. Uday Kumar s/o Late Sh. Kailash Nath saw the ladies sandle on the foot space of front left seat of the car.
31.ACP Jagdish Prasad (PW7) has deposed that he got the mechanical inspection of the offending vehicle conducted. Retired ASI Devender Kumar (PW9) has deposed that he received a request from IO/ SI Jagdish Prasad for the mechanical inspection of accident car i.e. make of Hyundai Accent bearing registration No. DL-1CG-5480. He conducted the mechanical inspection of the above said car (Ex.PW9/A) and found fresh damages i.e. front bumper and body dented from right side and front wind screen glass was found broken and the vehicle was found fit for road test. He has further stated he had signed Ex. PW9/A but it appears that Digitally signed by CC No. 288552/2016 State Vs. Jitender Kumar Page 13 of 22 NEHA NEHA GOEL Date:
GOEL 2025.05.06 17:13:13 +0530 material part containing his signature is torned and the said report is in in his hand writing.
32.Thus, the statement of PW1 during his cross examination by Ld. Counsels for accused persons that police obtained his signatures on blank papers at PS and all the proceedings of this case have been done in police station stands refuted from the depositions of PW5, PW7 and PW9. It is settled law that police witnesses are not unworthy of credit on the ground that they are police officers. Infact, PW1 had admitted his signatures on the seizure memos of rickshaw and offending car (Ex. PW1/C and Ex. PW1/B) during examination in chief and did not raise any concern then that the signatures were taken on blank papers. Infact, PW10 has identified the registration number of the offending vehicle to be DL 1 CG 5480 and has deposed in detail as to the hitting of the rickshaw and pedestrian by this vehicle.
33.Ld. Counsel for accused no.1 Naveen Jain has argued that cycle has not been seized. The argument made by Ld. Counsel for accused no. 1 Naveen Jain is untenable. Non- seizure of cycle cannot raise a doubt on the case of the prosecution as cycle was not affected by the accident as the offending vehicle i.e. car and the vehicle which was hit by the offending vehicle i.e. rickshaw were seized.
34.From the above discussion, it is clear that the offending vehicle is Hyundai Accent bearing registration No. DL-1CG-5480.
Identity of offender
35.As per, Uday Kumar (PW3), he was told by shopkeepers at the site of accident of his brother has been caused by accused no. 1 Naveen Jain and he saw accused no. 1 Naveen Jain to be sitting in a park near to the site of accident in a state of shock. PW3 is not a witness to the incident. Most of the testimony of this witness is in the nature of hearsay evidence. Simply because he saw accused no. 1 Naveen Jain in a park opposite to the spot in a state of shock is not enough to conclude that he must Digitally signed by CC No. 288552/2016 State Vs. Jitender Kumar Page 14 of 22 NEHA NEHA GOEL Date:
GOEL 2025.05.06 17:13:17 +0530 have caused the accident, however, the presence of accused no. 1 Naveen Jain in a park opposite to the spot in a state of shock can be considered to be of circumstantial value.
36.As per prosecution, accused no. 1 Naveen Jain was given notice u/s 133 MV Act (Ex. PW7/C) by PW7 stating that as per record of State Transport Authority, accused no. 1 Naveen Jain was the registered owner of the offending vehicle and he was directed to appear on 19.11.2001 before PW7 and produce the driver of the vehicle on the day of incident. As per prosecution, accused no. 1 Naveen Jain sent reply dated 19.11.2001 to PW7 (Ex. PW7/D) stating that accused no. 2 Jitender Kumar is being produced as the driver of the offending vehicle on the date of incident.
37.Accused no. 1 Naveen Jain was sent notice u/s 91 CrPC dated 23.11.2001 (Ex. PW7/E) by PW7 to produce documents i.e. employment, salary certificate of accused no. 2 Jitender Kumar. Accused no. 1 Naveen Jain sent reply dated 23.11.2001 (Ex. PW7/F) on letter head of Mahabir Utensils Store stating that he is the owner of the offending vehicle and accused no. 2 Jitender Kumar was his driver on the day of the incident and was doing work with him since 20.01.2001 on salary of Rs. 2800/- per month. The abovesaid documents were not produced by accused no. 1 Naveen Jain.
38.During cross examination of PW7 by Ld. Counsel for accused no. 1 Naveen he has deposed that "It is correct that accused Naveen was not driving the offending vehicle at the time of incident. (Vol. As per the reply of notice u/s 133 MV Act, accused Jitender was driving the vehicle.)."
39.The above cross examination by Ld. Counsel for accused no. 1 Naveen Jain suggests that as per accused no. 1 Naveen Jain, he is the owner but was not the driver of the offending vehicle on the date of incident and accused no. 2 Jitender Kumar was the driver of the offending vehicle on the date of the incident.
Digitally CC No. 288552/2016 State Vs. Jitender Kumar Page 15 of 22 signed by NEHA NEHA Date:
GOEL GOEL 2025.05.06 17:13:22 +0530
40.This inference can be drawn from the above deposition as despite the fact that witness voluntarily stated that accused no. 2 Jitender Kumar was driving the offending vehicle, he was not cross examined any further. PW7 has not been cross examined as to Ex. PW7/C, Ex. PW7/D, Ex. PW7/E and Ex. PW7/F.
41.In view of the settled law on this aspect, non-cross examination of the witness leads to admission of the case on part of the accused. (Reliance has been placed on Laxmi Bai Through LRs and Another Vs Bhagwant Bua Through LRs and Others [2013 SCC OnLine SC 101] and Ravinder Singh Vs State (NCT of Delhi) [2012 SCC OnLine Del 1869].
42.Additionally, Ld. Counsel for accused no. 1 Naveen Jain has argued that accused no. 1 Naveen Jain was not present at the spot and no CDR of mobile numbers of any of the accused persons has been obtained or CCTV footage of the accident has been obtained.
43.However, when Ex. PW7/C, Ex. PW7/D, Ex. PW7/E and Ex. PW7/F were put to accused no. 1 Naveen Jain during his statement u/s 313 CrPC, he stated that " it is incorrect" that he was sent Ex. PW7/C or Ex. PW7/E or that he replied by Ex. PW7/D or Ex. PW7/F.
44.Thus, accused no. 1 Naveen Jain has contradicted himself by admitting, on one hand, that he is the owner but was not the driver of the offending vehicle on the date of incident and accused no. 2 Jitender Kumar was the driver of the offending vehicle on the date of the incident, but, on the other hand, by denying the same.
45.Accused no. 1 Naveen Jain has refused to participate in TIP proceedings on the ground that he has been shown to the witnesses and has admitted the report of TIP proceedings u/s 294 CrPC.
46.It is the case of accused no. 2 Jitender that he was not present at the spot and caused any accident. Ld. Counsel for accused no. 2 Jitender has argued that CC No. 288552/2016 State Vs. Jitender Kumar Page 16 of 22 Digitally signed by NEHA NEHA GOEL GOEL Date:
2025.05.06 17:13:27 +0530 accused no. 2 Jitender was not present at the spot and no CDR of mobile numbers of any of the accused persons has been obtained or CCTV footage of the accident has been obtained. Accused no. 2 Jitender refused to participate in TIP proceedings on the ground he was shown to the witnesses and has admitted the report of TIP proceedings u/s 294 CrPC.
47.Thus, adverse inference is being drawn against accused no. 1 Naveen Jain and accused no. 2 Jitender for refusal to participate in TIP proceedings.
48.PW7 has deposed that there was no CCTV camera near the spot of incident.
49.Accused no. 1 Naveen Jain has tried to shift the blame on accused no. 2 Jitender by using Ex. PW7/D and Ex. PW7/F by stating that accused no. 2 Jitender was the driver of the offending vehicle at the time of incident. Infact, accused no. 1 Naveen Jain was specifically asked to produce documents to show whether accused no. 2 Jitender was his driver but he failed to produce the same. Accused no. 1 Naveen Jain has been proved to be the owner of the offending vehicle. Since, he has not been able to prove that accused no. 2 Jitender was the driver of the offending vehicle on the date of the incident and infact has blown hot and cold as to the documents Ex. PW7/C, Ex. PW7/D, Ex. PW7/E and Ex. PW7/F leads to the conclusion that accused no. 1 Naveen Jain must have been driving the offending vehicle on the date of the incident as otherwise there was no reason to dilly- dally upon the documents. Neither accused no. 1 Naveen Jain was able to produce documents to show that accused no. 2 Jitender was his driver nor he participated in the TIP proceedings. It is the opinion of the Court that there is sufficient circumstantial evidence available against him.
Rashness and negligence
50.Following are the ingredients of Section 279 IPC:
a. The accused was driving a vehicle or riding.
Digitally signed by CC No. 288552/2016 State Vs. Jitender Kumar Page 17 of 22 NEHA NEHA GOEL GOEL Date:
2025.05.06 17:13:31 +0530 b. He was doing so on a public way.
c. He was also doing so rashly or negligently.
d. The act of driving or riding was to endanger human life or was likely to cause hurt or injury to any other person.
51.Following are the ingredients of Section 304A IPC:
a. There must be death of the person in question.
b. The accused must have caused such death; and c. That such act of the accused was rash or negligent and that it did not amount to culpable homicide.
52.Following are the ingredients of Section 337 IPC:
a. Accused did some act.
b. He did it rashly or negligently.
c. The act endangered human life or personal safety of others.
d. Hurt was caused to some persons in consequence thereof.
53.Ld. APP for State has placed reliance upon Paras Nath (supra). It has been held in this judgment that "7. I am not in agreement with the submissions of the learned counsel for the appellant. Merely because the witnesses did not use the words rashness or negligent in his testimony and instead used the words high-speed, cannot be taken that the appellant was not driving the vehicle in a rash or negligent manner, what is important is to find out if the driver of the offending vehicle was driving in public place rashly and in negligent manner so as to endanger human life or to be likely to cause hurt or death to any other person. In the case in hand the appellant hit the scooterist from behind. It is not the case of the appellant that the CC No. 288552/2016 State Vs. Jitender Kumar Page 18 of 22 Digitally signed by NEHA NEHA GOEL Date:
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scooterist had applied break all of a sudden and therefore the appellant was taken unaware which led the appellant's truck hitting the scooter from behind. Act of negligence can be clearly attributed to the petitioner in this case as he is solely responsible for causing this accident without any fault of the scooterist. Rashness or negligence can be determined from the manner in which the accident had taken place. Even the site plan prepared by the Investigator which was exhibited as PW 5-C speaks about the negligence attributed to the petitioner. The appellant also admitted in his statement under Section 313 of the Code of Criminal Procedure that accident had taken place with his truck but denied that it was due to negligent and rash driving on his part."
54.Ld. Counsel for accused no. 1 Naveen Jain has placed reliance upon Manish (supra). It has been held in Manish (supra) that merely because a vehicle is being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself and the burden is upon the prosecution to show what it means by high speed in the facts and circumstances of the case as high speed is a relative term.
55.Reliance placed on Manish (supra) will not aid the accused no. 1 Naveen Jain as in the present case, it is evident from the testimony of the eye-witnesses, viz., PW1 and PW10 that the offending vehicle which was being driven at a high speed was also being driven in a rash and negligent manner as the deceased pedestrian Sh. Rakesh Nath was hit and, thereafter, dragged by accused no. 1 Naveen Jain who then did not stop and thereafter went on to hit the rickshaw laden clothes, resulting in PW10 being injured and toppled over. The seizure memo of the offending car (Ex. PW1/B) states that the front glass of the car was broken. PW9 who conducted the mechanical inspection had found fresh damages i.e. front bumper and body dented from right side and front wind screen glass was found broken and the vehicle was found fit for road test. Uday Kumar s/o Late Sh. Kailash Nath has also deposed that the offending car had dent/damages and blood stains at its front body. The seizure memo of the rickshaw (Ex. PW1/C) states that both the back wheels of Digitally CC No. 288552/2016 State Vs. Jitender Kumar Page 19 of 22 signed by NEHA NEHA GOEL GOEL Date:
2025.05.06 17:13:39 +0530 the rickshaw were broken. Thus, it is clear that the offending car had hit the rickshaw from behind. This deliberate act on the part of accused no. 1 Naveen Jain shows that accused no. 1 Naveen Jain failed to exercise due care and committed breach of duty towards the pedestrian and vehicles on road at night time when one is supposed to drive in a more careful manner. This shameful disregard shown by accused no. 1 Naveen Jain towards the safety of others in a bid to flee from the spot is what leads to the conclusion that the offending car was driven by accused no. 1 Naveen Jain in a rash and negligent manner.
56.Reliance placed on Azad Singh (supra) will not aid accused no. 1 Naveen Jain as it has been decided in its own facts.
57.In view of the above discussion, this Court is of the considered opinion that the prosecution has been able to prove its case, against accused no. 1 Naveen Jain, beyond reasonable doubt u/s 279, 304 A and 337 IPC.
Role of accused no. 2 Jitender Kumar
58.Following are the ingredients of Section 199 IPC:
a. Accused made or superscribed a declaration.
b. A court, public servant or other person was bound or authorized by law to receive such declaration in evidence.
c. Accused made a statement in such declaration.
d. Such statement was false.
e. Such statement was material to the object for which the declaration was made.
f. Accused knew that it was false.
Digitally signed by CC No. 288552/2016 State Vs. Jitender Kumar Page 20 of 22 NEHA NEHA GOEL GOEL Date:
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59.Following are the ingredients of Section 120 B IPC:
a. An agreement between two or more persons to commit an offence.
b. In doing so the accused either did or caused to be done:
i. an illegal act, or ii. an act, which is not in itself illegal, by illegal means.
c. Such an act done or caused to be done was an offence punishable under the Indian Penal Code.
d. If the act so done was not an offence then an overt act had been done by one or more parties to such agreement in pursuance thereof.
60.It has been proved that accused no. 1 Naveen Jain was driving the offending vehicle at the time of incident and not accused no. 2 Jitender Kumar. It has been further proved that accused no. 1 Naveen Jain produced accused no. 2 Jitender Kumar as the driver of the offending vehicle after which accused no. 2 Jitender Kumar was arrested the same day. Thus, accused no. 2 Jitender Kumar was a participant in the conspiracy in making Ex. PW7/D by which accused no. 1 Naveen Jain made declaration that accused no. 2 Jitender Kumar was driving the offending vehicle on the date of incident and produced accused no. 2 Jitender Kumar before the IO and both accused knew that the statement is false.
61.In view of the above discussion, this Court is of the considered opinion that the prosecution has been able to prove its case, against accused no. 1 Naveen Jain and accused no.2 Jitender, beyond reasonable doubt u/s 199/120B IPC.
62.Accused no. 1 Naveen Jain stands convicted for offences u/s 279, 304 A, 337 and 199/120B IPC.
63.Accused no. 2 Jitender stands convicted u/s 199 r/w 120 B IPC.
Digitally signed by NEHA CC No. 288552/2016 State Vs. Jitender Kumar Page 21 of 22 NEHA GOEL GOEL Date:
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64.Let both accused persons be heard on the point of sentence separately.
65.Announced in open court on 06.05.2025. Digitally signed by NEHA NEHA GOEL Date:
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(NEHA GOEL)
Judicial Magistrate First Class (NI Act)-02, (Central), THC/Delhi/06.05.2025 CC No. 288552/2016 State Vs. Jitender Kumar Page 22 of 22