Delhi District Court
State vs . Yogender Malik on 29 November, 2022
IN THE COURT OF MS. MEENA CHAUHAN
METROPOLITAN MAGISTRATE -08 (CENTRAL)
TIS HAZARI COURTS : DELHI
FIR No. 429/16
PS : Kotwali
U/s 279/337/338 IPC
State vs. Yogender Malik
Date of Institution of case: 03.02.2017
Date when Judgment reserved: 15.11.2022
Date on which Judgment pronounced: 29.11.2022
JUDGMENT
A. Case No. : 1364/17 B. Date of Institution of Case : 03.02.2017 C. Date of Commission of Offence : 22.07.2016 D. Name of the complainant : Mushraf Ali E. Name of the Accused & his : Yogender Malik S/o Sh. Sultan Malik R/o H. No. D-1/25, Krishan Vihar, Sultanpuri, Delhi-86.
F. Offences complained of : U/s 279/337/338 Indian Penal Code G. Plea of the Accused : Pleaded not guilty H. Final order : Acquitted of all charges.
I. Date of such order : 29.11.2022
1. BRIEF FACTUAL POSITION:-
1.1 This is the prosecution of accused Yogender Malik S/o Sh.
State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 1/24 Sultan Malik R/o H. No. D-1/25, Krishan Vihar, Sultanpuri, Delhi pursuant to the charge sheet filed by PS Kotwali for commission of offences punishable U/s 279/337/338 Indian Penal Code(hereinafter called as IPC), subsequent to the investigation carried out by them in FIR No.429/2016. 1.2 As per the prosecution, on 22.07.2016 at about 01.45 am, at Main Chowk, Shantivan Chowk, Red Light, Delhi, accused was driving an offending vehicle/car bearing no. DL-1ZZ-2784 in a rash and negligent manner so as to endanger human life and personal safety of others and had hit an offending car against TSR bearing NO. DL-1RM-2326 as a result caused grievous injury to the complainant Musraf Ali and simple injury to the driver of TSR namely Mohd. Tayab. Accordingly, after the investigation, police filed the present charge sheet against the accused for commission of offences punishable U/s 279/337/338 IPC.
1.3 Complete set of chargesheet and other documents were supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). After hearing the arguments, Notice u/s 251 Cr.P.C. for offences punishable under section 279/337/338 IPC was served upon the accused on 01.09.2018, to which he pleaded not guilty and claimed trial.
State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 2/24
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution, in support of its case, has examined 05(Five) witnesses in total, the details whereof are given as under:
PW-1 Mushraf has deposed that he along with two other passengers was coming in the TSR from Khanpur Tigri and going to Bara Hindu Rao. When the TSR reached Red light, Red Fort, one car came from the front side and hit the TSR. Due to the impact the TSR turtled and he also fell outside at the road. The police were already present near the spot who took him in the PCR to AAA Hospital. Police official recorded his statement in this regard Ex. PW-1/A. He has correctly identified you. He has also correctly identified 10 photographs of offending vehicle and five photographs of TSR Ex. P-1 & Ex. P-2.
During cross-examination by Ld. APP for the State, PW-1 stated that he does not remember the registration number of TSR. He stated that he is not sure whether the TSR registration number is DL1RM2326. He cannot say at the time of the accident the Red light was blinking. He does not remember the registration number of the offending vehicle. He cannot say whether the registration number of the offending vehicle is DL1ZZ2784. He admitted that the accused was driving the offending vehicle at a very high speed and was driving in a rash State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 3/24 and negligent manner. The accused was coming from Geeta Colony bridge. The name of the driver of the TSR is Mohd. Taiyab. He admitted that the driver and the other two persons had also suffered injuries due to the incident. He admitted that Mohd. Taiyab was also taken to AAA Hospital along with him.
PW-2 Mohd. Inayat Ansari has deposed that he was the registered owner of TSR bearing no. DL1RM 2326. On 22.07.2016, his TSR was driven by Mohd. Tayab. The said driver had caused one accident and his TSR got damaged. The same was deposited in Malkhana of PS Kotwali which he got released on superdari vide superdarinama Ex. PW2/A. PW-2 correctly identified five photographs of TSR bearing no.
DL1RM 2326 Ex. P-2.
During cross-examination by Ld. Counsel for the accused, PW- 2 stated that no notice was given to me by the IO. He admitted that he had gone to the Police Station without notice. He had seen his TSR in the premises of the police station. He does not know with which vehicle his TSR was collided. Driver did not tell him with whom the incident happened. He denied that his TSR collided with another vehicle but not with Innova Car bearing No. DL1ZZ 2784. Police had not recorded his statement. He denied that he is deposing falsely.
State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 4/24 PW-3 Ct. Ramphal has deposed that on 22.07.2016, IO received DD No. 433 regarding the accident at ShantiVan Chowk Red Light. He along with IO went to the spot where they saw one injured and one TSR bearing no. DL1RM 2326 in accidental conditional. Leaving him at the spot, IO was injured at Aruna Asaf Ali Hospital in PCR. IO returned to the spot and took TSR at PP Red Fort. IO recorded the statement of the complainant and prepared Tehrir and handed over the same at about 01:15 am to him for registration of FIR. After registration of FIR, he returned to the spot at about 02:25 pm and handed over the original rukka and copy of FIR to the IO. IO prepared site plan. He seized TSR bearing no. DL1RM 2326 vide Ex. PW3/A. IO seized the vehicle bearing no. DL1ZZ 2784. IO also seized the documents I.e RC, Insurance, Permit of driver of Innova Car bearing no. DL1ZZ 2784. Thereafter, IO seized your Driving License. IO deposited the case property in the malkhana. He has correctly identified ten photographs of Innova Car bearing no. DL1ZZ 2784 Ex. P-1. He has also correctly identified five photographs of TSR bearing no. DL1RM 2326 Ex. P-2. IO also recorded his statement u/s 161 Cr.P.C.
During cross-examination by ld. Counsel for the accused, PW-3 stated that he does not remember the DD number of his departure and arrival. He did not make any entry regarding his arrival in PS for registration of FIR. He does not remember State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 5/24 who was posted as Duty Officer on that day. He does not remember whether the Duty Officer made any endorsement on the rukka which was brought by him in the police station. It took one hour to register the FIR. Duty Officer got the FIR registered by the computer operator. No public person was present at the spot when he reached there. IO returned to the spot after 45 minutes after getting injured and admitted in the hospital. He does not remember how by what mode IO returned to the spot from hospital. IO took the injured to hospital. He does not remember where IO recorded the statement of injured. He does not remember whether IO had mentioned the position of both the vehicles in the site plan. He signed only one document. He does not remember the exact time which IO took in completing the documents. He does not remember whether IO recorded his statement on the Case Diary paper or simple paper. He denied that he did not join the investigation of the present case at any point of time. He further denied that he is deposing falsely.
PW-4 HC Rajesh has deposed that on 23.07.2016, he joined the investigation of the present case along with HC Sanjeev. On that day, the accused had produced his Innova Car bearing no. DL1ZZ 2784 which was involved in an accident. Accused also produced his Driving License vide memo Ex. PW4/A. Accused also produced the papers of said innova car. The same were State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 6/24 seized by the IO vide memo Ex. PW4/B. IO seized the Innova Car vide seizure memo Ex. PW4/C. IO also gave notice u/s 133 M. V. Act to the accused. IO arrested and personally searched accused vide memos Ex. PW4/D. Thereafter, the accused was released by the IO. PW-4 correctly identified the accused. He has also correctly identified ten photographs of Innova Car bearing no. DL1ZZ 2784 Ex. P-1.
During cross-examination by counsel for the accused, PW-4 stated that he does not remember whether IO had given any notice to the accused or not but on the day when accused had come to PP Red Fort, IO had given notice to the accused. He does not remember whether IO had conducted the search of the accused or not in his presence. Personal search was conducted in the room of IO. He does not remember who was present at the time of the personal search of the accused. He does not remember the exact time which IO took in preparing the arrest memo. It took 3-4 hours to do all the proceedings. Mohd. Tayab had also signed the arrest memo of the accused. Information of the arrest of the accused was given to his brother but he does not remember by what means IO had informed his brother. He does not remember the name of the person who was from the house of the accused and who stood surety to the accused. He denied that no documents were prepared in his presence or that he had signed the documents at the instance of the IO or that he is deposing falsely.
State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 7/24 PW-5 ASI Sanjeev has deposed that on PW-5 ASI Sanjeev has deposed that on 22.07.2016, after receiving DD No. 4PP Red Fort, he alongwith Ct. Ramphal reached at the spot i.e. Shanti Van Chowk where he found one TSR bearing no. DL1R M 2326 in accidental condition. After inquiry, he came to know that the injured had been shifted to Aruna Asaf Ali Hospital. Thereafter, he left Ct. Ramphal at the spot and he reached Aruna Asaf Ali Hospital and obtained MLC of injured Mashraf Ali and also obtained ME No. 3181/16 (Medical Examination) of Mohd. Tayab. On that day, the injured did not give his statement. Thereafter, he returned to the spot. He brought the TSR to PP Red Fort. He kept the call pending. On the same day at about 12:30 pm, complainant Mushraf came to PP Red Fort and recorded his statement Ex. PW1/A. He prepared rukka Ex. PW5/A and handed over to Ct. Ramphal for registration of FIR. He left the PP alongwith complainant to the spot. He prepared a site plan at the instance of complainant Ex.PW5/B. In the meanwhile, Ct. Ramphal also reached the spot and handed over a copy of FIR and original rukka to him. Thereafter, he seized the TSR vide seizure memo Ex. PW3/A. He served the Notice u/s 133 M.V. Act Ex. PW5/1 to the accused bearing his signature at point X. On 23.07.2016, accused came along with offending vehicle bearing no. DL1ZZ 2784 (Innova Car). In the meanwhile, eyewitness / TSR driver Tayab also reached the PP State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 8/24 Red Fort and he identified the accused. Thereafter, he seized his DL vide memo Ex. PW4/A. He also seized the RC, insurance and permit of the offending vehicle vide memo Ex. PW4/B. He also seized an offending vehicle vide memo Ex. PW4/C. He arrested accused vide memo Ex. PW4/B. Thereafter, he released the accused on police bail. On 24.07.2016, he got the vehicles mechanically inspected vide reports Ex. A-4 and Ex A-5. He correctly identified the accused. Case property has been released on superdari. He prepared the punchnama of the case property i.e., innova car vide Ex. PW5/C. He also prepared a punchnama of TSR Ex. PW5/D. He also prepared the punchnama of documents related to the offending vehicle vide memo Ex. PW5/E. He has correctly identified 10 photographs of offending vehicles I.e Innova Car bearing no. DL1ZZ 2784 and 05 photographs of the TSR Ex. P-1 and Ex. P-2. He obtained an opinion on the MLC of injured / complainant Mushraf in which the nature of injury was declared as grievous. Therefore, he added section 338 IPC in the chargesheet. He recorded the statement of a witness. After completion of investigation, he prepared a chargesheet and filed before the court.
2.2 Vide separate statements of the accused dated 29.05.2019, he had admitted the following documents i.e. copy of FIR No. 429/16 as Ex. A1, certificate u/s 65B Indian Evidence Act as State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 9/24 Ex. A2, DD No. 4PP dated 22.07.2016 as Ex. A3, Mechanical Inspection Report of vehicle bearing no. DL1ZZ2784 as Ex. A4 and Vehicle no. DL1RM 2323 as Ex. A5, MLC no. 3181/16 dated 22.07.2016 of injured Mohd. Tayab as Ex. A6, MLC no. 2668/19 dated 22.07.2016 of injured Mushraf as Ex. A7, and X-ray Report No. 266/19 of injured Mushraf as Ex. A8. Accordingly, his statement was recorded as per Section 294 Cr.P.C, and the concerned witnesses were dropped by the prosecution.
2.3 The prosecution evidence was closed on 23.12.2019 and thereafter, PW-5 was recalled u/s 311 Cr.P.C for cross- examination. On 13.10.2019, the prosecution evidence was closed as accused vide separate statement wishes not to cross- examine PW-5.
3. COMPOUNDING OF OFFENCE U/S 338 IPC:
The complainant Mushraf and accused were referred to Mediation at their joint request by the order of Ld. Predecessor of the Court and they have agreed to compound the offence. In view of a separate statement of the complainant Mushraf, the offence punishable u/s 338 IPC was compounded with the complainant Mushraf vide order dated 28.02.2019.
4. STATEMENT OF ACCUSED U/S 313 Cr.P.C:
State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 10/24 4.1 Statement of the accused was recorded U/s 313 Cr.P.C read with section 281 of Cr.P.C. on 15.11.2022 wherein all the incriminating circumstances appearing in evidence against him were put to him, to which he pleaded innocence, and stated that he has been falsely implicated in the present matter. Accused opted not to lead defence evidence.
5. ARGUMENTS:
5.1 Final arguments were heard at length. Ld. APP for the State has argued that on a combined reading of prosecution witnesses testimony, offences U/s 279 & 337 of IPC stand proved beyond reasonable doubt, against the accused.
5.2 On the other hand, Ld. counsel for the accused has argued that there is no legally admissible evidence against the accused. It is further argued that the accused has been falsely implicated in the present case as he was not driving the offending vehicle in a rash and negligent manner. It is further argued that prosecution has failed to prove the case against the accused beyond reasonable doubt and hence, the accused is entitled to be acquitted.
6. BRIEF STATEMENT OF THE REASONS FOR THE DECISION.
6.1 Arguments adduced by Ld. APP for State and by Ld. State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 11/24 Defence Counsel for the accused have been heard. Evidence and documents on record have been perused carefully.
6.2 I have bestowed my thoughtful consideration to the rival submissions made before me. Accused is indicted for the offences under section 279/337/338 IPC.
(a) Section 279. Rash driving or riding on a public way:-
Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger, human life or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
(b) Section 337. Causing hurt by act endangering life or personal safety of others:- Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
(c) Section 338. Causing grievous hurt by act endangering life or personal safety of others:- Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 12/24 which may extend to two years, or with fine which may extend to one thousand rupees, or with both 6.3 It is pertinent here to mention that the complainant has compounded the offence u/s 337/338 IPC as separate statements of the complainant were already on record. Further, the injured Mohd. Tayab was summoned several times, however he remained untraceable even after summons were issued to him through DCP concern. Vide order dated 29.05.2019 of the Ld. Predecessor of the court, witness/injured Mohd. Tayab was dropped from the list of witnesses. As no testimony of witness Mohd. Tayab came on record, there is no material on record produced by the prosecution to prove the simple injuries caused to the witness due to alleged rash and negligent act of the accused. In view of the above, as the offence u/s 337/338 IPC is compounded with the complainant Mushraf and injured Mohd. Tayab never appeared before the court, accused stands acquitted of offence punishable u/s 337/338 IPC.
6.4 Now, coming to the allegation of the offence u/s 279 IPC, the essentials ingredients of section 279 IPC are:
(1). Driving or riding in a public way.
(2). Such driving or riding must be rash or negligent to the point of endangering human life or causing harm or injury to State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 13/24 others.
6.5 The Hon'ble Supreme court in the case titled as Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284 observed that:
"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."
6.6 The Hon'ble Supreme court further observed that Ravi Kapur (supra):
"The court has to adopt another parameter i.e. "reasonable care" in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 14/24 on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others."
6.7 Before proceeding further, as per mandate laid down under Section 354(1)(b) Cr.PC following are the points of determination which are necessary to consider in order to arrive at a conclusion:
(1). Whether accused Nawabuddin has committed the offence for rash driving or riding on a public way under section 279 IPC?
6.8 In a criminal trial, the onus remains on the prosecution to prove the guilt of the accused beyond all reasonable doubts and the benefit of doubt, if any, must necessarily go in favor of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
"(i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 15/24 not become any the less.
(ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt."
6.9 As far as the identity of the accused as driver of the offending vehicle is concerned, there were two eyewitnesses in the present case, complainant Mushraf and injured Mohd. Mushraf. As discussed above, witness Mohd. Mushraf remained untraceable and dropped from the list of prosecution witnesses. The testimony of PW-1 Mushraf, the sole eye- witness, has to be analyzed. After scanning the testimonies of PW-1, it has been reflected that he correctly identified the accused in his deposition. Here, it is relevant to note that when the statements of the accused u/s 313 Cr.P.C were recorded, he no where disputed his presence at the time of accident and as driver of offending vehicle at the relevant time. On the other hand, he stated in his defence that the accident occurred when he was driving the offending vehicle at a normal speed and not negligently. This shows that he admitted the factum of his being the driver of the offending vehicle at the time of accident. Hence, the identity of the accused at the spot and as the driver of the offending vehicle is established by the prosecution evidence.
State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 16/24 6.10 Next question is whether the offending vehicle was driven by the accused in a rash and negligent manner at the relevant point of time. It has been held in Bhala Chand Waman Rao Pathe Vs. State of Maharashtra (SC 1964), that there is a difference between a rash act and a negligent act. Criminal negligence is the gross and culpable, neglect or failure to exercise reasonable and proper care and to guard against injury, either to the public generally, or to an individual in a particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of person to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The imputability arises from the 'neglect of the civic duty of circumspection'. On the other hand, culpable rashness is acting with the consciousness that the mischievous effects will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and if he had exercised caution, he would have had the consciousness that illegal consequences may follow, but continues with the act in a vain hope that they will not, and often, with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from 'acting despite the consciousness'.
State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 17/24 6.11 A careful perusal of their examination-in-chief of the PW- 1 apprised that he whispered not a single word about the manner in which the offending vehicle was driven, neither he even said that it was in high speed or rash or negligent in any way. It is only in their cross-examination by the Ld. APP for the state u/s 154 Cr.P.C that they both admitted the offending vehicle was at very high speed and driven in rash and negligent manner. Here, it is pertinent to mention that even if these admitted suggestions of PW-1 are taken into consideration, still these are merely bald statements that the accused was driving in a rash and negligent manner and at a high speed. They have not specified the manner in which the accused was driving.
6.12 At this stage, it is relevant to refer to the observations made by the Hon'ble High court of Delhi in the case titled as "Vinod Kumar v. State" 2012(1) RCR (criminal) 567 as follows:
"No evidence or any other material was placed on record by the prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW1 the alleged eye-witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 18/24 a rash and negligent manner which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one."
6.13 In the case titled as Abdul Subhan vs. State (NCT of Delhi), 2006 (4) LRC 472 (Del), it was held by the Hon'ble High Court of Delhi as below, "7. .....What is meant by high speed? Were the traffic lights working or not? Why was the investigating officer not examined? Why were photographs not taken? Why is there no evidence with regard to tyre skid marks? Why was the site plan not exhibited? There are questions which remain unanswered pertaining to the motorcyclist who unfortunately lost his life in this accident. Was the motorcyclist on Mathura Road? What was his direction of movement? Was he coming from Sher Shah Road and turning towards Mathura Road? Or was he on Mathura Road turning towards Sher Shah Road? What was the speed of the motorcyclist? Did the motorcyclist suddenly curve into the path of the petitioner's truck? A host of other questions remain unanswered purely because the degree of investigation carried out is quite unsatisfactory."
6.14 Furthermore, there is no photography or videography of State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 19/24 the spot of the alleged incident. After scanning the testimonies of all prosecution witnesses and the entire judicial record available, it has been observed that no photographs were ever taken of either the offending vehicle or the alleged spot where the incident occured. This is the classic case of the shoddy quality of investigation being done by the investigating officer specifically in accidental cases. Suffice it to say that if proper photographs have been placed on record, it would have helped this court in finding out the prevailing weather at that time, the topography of the area, the tyre skid marks, the trajectory of the vehicle and blood stains etc. enabling this court to appreciate the case of the prosecution more effectively. The standard of investigation expected in a road accident case is lucidly described in the judgment of Abdul Subhan vs. State (NCT of Delhi)(supra). Suffice to say, in the present case the quality of investigation fell well short of what was required to inculcate the accused. In the case titled as Abdul Subhan vs State (NCT of Delhi) (supra), it was observed by the Hon'ble High Court of Delhi as below:
"13.3 As a rule, photographs ought to be taken not only of the vehicle involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerned by courts.
13.4 The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 20/24 the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. 13.5 Furthermore the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case. 13.6 ...
13.7 Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because no criminal court would and ought not convict any person merely on the basis of conjectures, assumptions, probabilities, all elements of subjectivity need to be eliminated."
6.15 Also, the site plan prepared by the IO is nothing but a sign of shoddy investigation. In the case titled Abdul Subhan vs. State (NCT of Delhi), 2006 (4) LRC 472 (Del), the High Court of Delhi made following observations regarding the importance of site plan:
"13.1. In most cases I find that the site plans are not produced. Even the site plan that is produced is of a very unsatisfactory nature. It is, therefore, imperative that the investigating officer should be provided with maps of the roads drawn to scale so State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 21/24 that accurate site plans can be produced in evidence for the appreciation of courts. The exact point of impact as well as tyre skid marks and the point at which the vehicles come to rest after the collision should be demarcated clearly. The observations with regard to the length of the tyre skid marks of the vehicles involved in the impact go a long way in indicating the speeds at which the vehicles were traveling. This would enable the courts to examine the evidence in a much more objective manner and the courts would not be faced with vague and subjective expressions such as "high-speed."
6.16 In the present case, a site plan is rudimentary at best and the same does not even show the presence of street lights on the road. The site plan which is Ex.PW5/B mentioned only the place where the accident had taken place and the place where the offending vehicle was found. The IO has not pointed out the place where the driver had fallen down after the collision or where the injured were found in injured condition, which further creates doubts in the story of the prosecution.
7. CONCLUSION:
7.1 It is well settled law that to convict the accused on circumstantial evidence, there must be a complete chain of events pointing towards the guilt of the accused and nothing else. After making the above said observations, it can be said State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 22/24 that in the present case, there are serious loopholes and lacunas in the story of prosecution, the benefit of same goes to the accused and the prosecution is not able to prove that the accused was driving the vehicle in rash and negligent manner beyond a reasonable doubt at the relevant point of time.
7.2 It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused.
Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer Guntur reported as VIII(2007) SLT 454(SC). Unless and until, the prosecution discharges this primary burden of proof, the burden never shifts upon the accused.
7.3 In the case at hand, the prosecution has succeeded in establishing the identity of the accused as the driver of the offending vehicle, however there is no evidence on record to prove that the accused was driving in a rash and negligent State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 23/24 manner, except the bald statement made by PW-1. There are no photographs of the spot. The site plan is also vague and a mere formality.
7.4 In view of the above discussion and in light of settled legal position as per above-mentioned case laws in my opinion, the prosecution has failed to prove its case u/s 279 IPC against the accused. The prosecution has failed to prove that the accused was driving in a rash and negligent manner. Thus, he is entitled to be acquitted in the above said charge u/s 279 IPC. Accordingly, the accused Yogender Malik S/o Sh. Sultan Malik is acquitted under Section 279/337/338 Indian Penal Code.
File be consigned to Record Room subject to compliance of section 437-A Cr.PC.
Announced in the open court Digitally signed by MEENA MEENA CHAUHAN CHAUHAN Date:
today i.e., 29.11.2022 2022.11.29
17:16:07 +0530
(MEENA CHAUHAN)
Metropolitan Magistrate-08
Central District, Tis Hazari
Courts/Delhi
[This judgment contains 24 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs. Yogender Malik FIR No. 429/16 PS Kotwali 24/24