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Delhi District Court

State vs Jitender Singh on 4 January, 2025

 IN THE COURT OF METROPOLITAN MAGISTRATE-07,
          SOUTH-WEST, DWARKA COURTS,
                      NEW DELHI
            Presided over by- Sh. Visvesh, DJS

Cr. Case No.          -:     6694/2019
Unique Case ID No.    -:     DLSW020083422019
FIR No.               -:     73/2018
Police Station        -:     Chhawla
Section(s)            -:     279/338/304A IPC

 In the matter of -
 STATE
                                  VS.

 JITENDER SINGH
 S/o Sh. Mahender Singh,
 R/o VPO Sukhrali Near Big Chaupal,
 Mehrauli, Gurgaon Raod,
 Gurugram, Haryana.
                                                          .... Accused

1.

 Name of Complainant              : ASI Kirti Kumar
2. Name of Accused                  : Jitender Singh
     Offence complained of or
3.                                  : 279/338/304A IPC
     proved
4. Plea of Accused                  : Not guilty
     Date of commission of
5.                                  : 02.03.2018
     offence
6. Date of Filing of case           : 20.02.2019
7. Date of Reserving Order          : 29.10.2024
8. Date of Pronouncement            : 04.01.2025
9. Final Order                      : Acquitted of all charges

Argued by -: Sh. Vishvjeet Yadav, Ld. APP for the State.

Sh. Vikas Tanwar and Prashant Godara, Sh. Ld. counsel for the accused.

       BRIEF         STATEMENT          OF        REASONS   FOR        THE
      DECISION:
      FACTUAL MATRIX-

1. It is the case of prosecution that on 03.03.2018 at about 03.50 PM near Tyagi Farm House, Jhatikara Road, New Delhi, within the jurisdiction of Police Station Chhawla, the Accused was driving car bearing No. HR 26BT 2578 rashly and negligently in such a manner so as to endanger human life and personal safety of others and while driving so the aforesaid vehicle hit against motorcycle bearing no. DL 9SBJ 1130( Hero Passion) and caused grievous injuries to injured Arvind and death of victim Ravinder not amounting to culpable homicide, thereby committing offences punishable under Sections 279/338/304A of Indian Penal Code (hereinafter, the 'IPC').

2. After conclusion of investigation, instant chargesheet was filed under Section 279/338/304A IPC. Cognizance of the offences disclosed in the chargesheet was taken, and accused was summoned to face trial.

3. When the accused entered appearance before this Court, copy of chargesheet was supplied to him in compliance of Section 207 CrPC. A formal notice explaining to him the substance of accusation against him was served upon the accused on 25.01.2020. Accused pleaded not guilty to the offences alleged against him, and claimed trial. Proceedings then progressed to the stage of PE and prosecution examined nine witness to prove its case.

PROSECUTION EVIDENCE

4. Prosecution first examined PW-1 to prove its case, who deposed that on 02.03.2018, he was incharge of Cat Ambulance and on the said day he received a call regarding an accident occurred at Jhatikara Mor near Tyagi farm. He reached there and found one person in unconscious condition on the Cr. No. 73/2018 State vs. Jitender Singh Page 2 of 12 road. He shifted the said person to RTRM Hospital in Cat Ambulance and thereafter, he was declared as brought dead by the concerned hospital. In his cross examination he deposed that one car was stationed near the spot but he had not observed any motorcycle lying near the spot. He further deposed that he did not remember if the car was parked in its own side or not.

5. Prosecution next examined Sh. Arvind Kumar, injured in the matter and the eye witness, as PW-2. He deposed that on 02.03.2018, he alongwith his cousin brother namely Ravinder (since deceased) were returning from Shikarpur Village to their house. He further deposed that deceased Ravinder was riding the motorcycle and he was the pillion rider of motorcycle bearing registration no. DL-9S-BJ-1130 of black colour. He further deposed about the incident that when they reached near Tyagi Farm at Jhatikara Road, he saw one car make I-20 of white colour having registration number HR-26BT-2578 which came from opposite side which was being driven in a zig zag manner and seemed to be not under control and hit their motorcycle from the front, due to the implact both fell down on the road alongwith their motorcycle and sustained sever injuries. He further deposed that he remained conscious for about 4-5 minutes after the incident, however, he was not able to see as to who was driving the offending vehicle at that time. Hence, he cannot identify the driver of the offending. He further deposed that when he regained his consciousness he was in Balaji Hospital and thereafter he was referred to Safdarjung Hospital. He correctly identified the offending vehicle and the spot of incident. When he was cross examined by Ld. APP for the the State in terms of Section 154 Indian Evidence Act, 1872, he denied in toto all the suggestions put by Ld. APP. During his cross examination by Ld. defence counsel he deposed that police interrogated him regarding the accident in question, after three days of the incident and during the interrogation he told the registration number of the vehicle to the IO. Upon showing him Cr. No. 73/2018 State vs. Jitender Singh Page 3 of 12 photographs mentioned as page no. 83 and 84 of the chargsheet he states that the side of the road seen in the abovesaid photographs moves from Najafgarh towards Jhatikara Village. He admitted that at the time of the accident, they were coming from Jhatikara towards Najafgarh. He further deposed that he was conscious for some time after the accident took place but thereafter, he fell unconscious. He deposed that the driver of the offending vehicle did not come out of the car till the time he was conscious. He denied the suggestion that the accident in question took place due to their own negligence as they were drunk and were on their wrong side of the road at the time of the incident. He further deposed that driving license of his cousin who was riding the bike at the time of the accident, was shown by him to the police officials but the same is not on record. He denied the suggestion that deceased Ravinder was not having any valid license. After being duly cross examined the witness was discharged.

6. Prosecution further examined ASI Dharambir Singh as PW-3. He deposed that 06.09.2018, he was posted at MACT Cell and received the case file of the present case for further investigation. As the material investigation was complete he prepared the chargesheet and filed the same before court. The witness was duly cross examined by defence counsel and thereafter discharged.

7. Prosecution next examined Retd. SI Om Prakash as PW-4 who deposed that on 06.03.2018, he was posted at MACT Cell, Dwarka and the present case was marked to him for further investigation. He recorded the statement of injured Arvind Kumar. On 12.03.2018, he served notice under Section 133 MV Act upon Jitender Singh / owner of the offending vehicle and get the reply Ex. PW4/A. He further deposed about the codal formalities carried out by him during investigation i.e. releasing of vehicle on superdari, interrogation of accused, arrest of accused and seizure of DL and seizure of Cr. No. 73/2018 State vs. Jitender Singh Page 4 of 12 documents etc. He recorded statement of witnesses. He correctly identified the accused and the offending vehicle. In his cross examination he deposed that he doe not remember on what date he recorded the statement of the injured. He denied the suggestion that the injured was not aware of registration number of vehicle at the time of his statement. He further deposed that he served the notice under Section 133 MV Act upon the accused at his residential address at village Sukhrali, Gurugram. He denied the suggestion that handwriting in which the reply is mentioned from point X to Y and the name of accused Jitender at point Z mentioned in the reply are not of the accused Jitender. He admitted that reply of notice under Section 133 MV Act does not bear the signature of any witness as well as the arrest memo and personal search memo does not bear the signatures of any witness. It is correct that the personal search memo also does not bear the signatures of any witness. He further stated that he did not ask for any DL of the victim / deceased from his family. He denied the suggestion that the accused has been falsely implicated in the present matter just to get the MACT claim.

8. To prove its case prosecution last examined ASI Kirti Kumar as PW-5. He deposed that on 02.03.2018 on receipt of DD no. 52A he alongwith HC Jagdish Prasad went to RTRM Hospital where Injured was admitted vide MLC no. 1000/18 and was unfit for statement. He further deposed that no eye witness was found at the spot. Thereafter, they went to the spot and found the car bearing no. HR 26BT 2578 and one motorcycle bearing no. DL 9SBJ 1130 in accidental condition. He took photographs of the spot by using his mobile phone but no eye witness was found at the spot. During local enquiry, he found that there were two persons riding on the motorcycle and both had got injured but no information could be gathered about the whereabouts of the second injured person. He further deposed about preparation of tehrir Ex. PW-5/A and got the present FIR registered. He prepared the site plan Ex.

PW5/B and searched for CCTV footage but not CCTV footage was found on or near the spot. He seized both the vehicles. He further deposed that on the next day, he received information from one Krishan Kumar that the unknown injured person was admitted vide MLC no. 1000/18 is his brother and his name is Ravinder and the second injured person is Arvind. The caller further deposed that Arvind has been admitted to Balaji Hospital, Deenpur and thereafter, sent to Safdarjung Hospital Troma Centre. He thereafter, went to Balaji Hospital, Deenpur and received the copy of MLC No. 424/18 in which the nature of injuries were declared to be grievous. The second injured namely Ravinder had also been referred to Safdarjung Hospital by the doctors at RTRM Hospital but he succumbed to injuries and died. The dead body of Ravinder was shifted to RTRM Hospital Mortuary. Thereafter, he deposed about the cordal formalities conducted by him for post mortem, mechanical inspection of vehicles and recording of statement of witnesses. During his cross examination he deposed that he reached at the hospital at about 12.00 PM on 02.03.2018 and the spot at about 03.00 PM after collecting MLC from RTRM Hospital. He further deposed that no guard or other person was found present at tyagi Farm. He admitted that the offending vehicle was found on its correct side of the road and injured persons were coming from village Shikarpur which is situated in the direction of point X on the site plan Ex. PW5/B. He admitted that the motorcycle was found lying on the road on Tyagi Farm side i.e. on its wrong side. After duly cross examined, the witness was discharged.

9. In terms of Section 294 Cr.P.C., accused admitted the genuineness of FIR alongwith certificate under Section 65B of IEA Ex. A1 and Ex. A2, DD no. 53A Ex. A3, DD no. 89A Ex. A4, Seizure memo qua RC and insurance documents Ex. A5, RC no. 51/21/18 Ex. A6, FSL report Ex. A7, post mortem report Ex. A8, MLC no. 1000/18 Ex. A9, MLC no. 424/18 Ex. A10, Cr. No. 73/2018 State vs. Jitender Singh Page 6 of 12 Mechanical inspection reports Ex. A11 (colly). Accordingly, remaining witnesses were dropped from the list of witnesses to be examined by the prosecution. PE was closed thereafter.

10. Since nothing incriminating could come on record against the Accused, SA was dispensed with. The Accused stated that he did not wish to lead DE and the matter was straightaway posted for final arguments and for disposal in terms of the judgement of Satish Mehra vs. Delhi Administration & Anr. Reported as 1996 JCC 507. Heard. Record perused. Considered.

11. Before proceeding further, it shall be apposite to note the provisions of law germane for the adjudication of present proceedings :

279 IPC- Rash driving or riding on a public way-

Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt to injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Section 338:- Causing grievous hurt by act endangering life or personal safety of others.

Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.

304A IPC- Causing death by negligence-

Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

12. What can be gathered from a plain reading of above is that the thrust of the provisions of law for an incident relating to motor vehicle accident cases is on rash and negligent acts, so as to constitute the subject offences. Before liability can be fixed for offence under 279 IPC, prosecution has to establish Cr. No. 73/2018 State vs. Jitender Singh Page 7 of 12 that-

   (i)        accident was caused on a public way
   (ii)       accused was driving the offending vehicle at the time of the accident.
   (iii)      the accident was caused due to rash or negligent act of the accused.

13. Once when liability is affixed under Section 279 IPC, it will be examined if accused can be held guilty for the offence punishable under Section 338/304A IPC too- that is, whether the accident caused because of rash or negligent driving of the accused resulted in grievous injuries or death of a third party. The question of injuries or cause of death has to be examined only once the rashness or negligence is established.

14. In Mohammed Aynuddin @ Miyam vs State Of Andhra Pradesh (2000) 7 SCC 72, the scope of the terms "rashness or negligence" was explained by the Hon'ble Supreme Court of India thus, "A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."

15. It is seen that evidence led in the case is largely ocular in nature. The same shall be scrutinized as per the following principles laid down by the Hon'ble Supreme Court of India in its judgment titled Shahaja @ Shahajan Ismail Mohd. Shaikh vs State of Maharashtra dated 14.07.2022 in Criminal Appeal no. 739/2017- Cr. No. 73/2018 State vs. Jitender Singh Page 8 of 12

"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.

IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot Cr. No. 73/2018 State vs. Jitender Singh Page 9 of 12 expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.

XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.

See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, Leela Ram v. State of Haryana, AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012]"

16. With the above in mind, the facts of the case shall be adverted to. In order to prove the guilt of the accused, the prosecution had to establish-

(a) That the accident took place on a public way.

(b) That the offending vehicle was involved in the accident.

(c) That in the accident that took place, grievous injuries were sustained by injured Arvind, and that deceased Ravinder suffered fatal injuries in the accident.

(d) That the accident took place because of the 'rashness or negligence' of the driver of the offending vehicle.

(e) That the offending vehicle was being driven by the accused at the relevant time.

17. It is pertinent to note that the aforesaid requirements are cumulative in nature and it is not sufficient if the prosecution content itself with establishing any one or more ingredients, while failing to establish the others.

18. PW-1 is the CATS ambulance responder and is not a direct witness to the incident. PW-2 is a crucial witness who was the pillion rider in the bike ridden by the deceased. He has deposed that the offending vehicle was being driven in zig-zag manner and hit them head on, causing the accident. However, he completely resiled from his previous statement u/s 161 Cr.P.C. and stated that he could not identify the driver of the said vehicle at the time of the accident. This is despite the fact that PW-2 is himself an injured witness. Nothing material could be elicited from him even during cross- examination by the state. PW-3 is a formal witness to completing the terminal formalities of filing the chargesheet. Both PW-4 and 5 are witnesses to the investigative process and are not direct witnesses to the accident. PW-5 has also admitted in his cross-examination that the offending vehicle was on the correct side on the road whereas the victim vehicle was on the wrong side. Thus, the statement of the sole eyewitness has not supported the prosecution case and even if the weight of all the other witnesses in the investigation is brought to bear, the case of the prosecution falls woefully short of establishing the ingredients (d) and (e) to a standard of beyond reasonable doubt. Reliance is sought by the Court from the law laid down by the Hon'ble Supreme Court of India in Satish Mehra vs. Delhi Administration & Anr. Reported as 1996 JCC 507, wherein it has been held that "When the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date.".

19. The inevitable conclusion which has to be drawn, in the facts of the present Cr. No. 73/2018 State vs. Jitender Singh Page 11 of 12 case, is that prosecution could not establish the guilt of the Accused Jitender Singh s/o Mahender Singh beyond any reasonable doubt. Accordingly, the Accused is acquitted of the charge under Section 279/338/304A IPC.

20. File be consigned to record room after due compliance. Issue notice to SHO concerned to communicate the said judgement to the LRs of the deceased for necessary action as per law.

Date: 2025.01.04 11:36:25+05'30' (VISVESH) Metropolitan Magistrate-07 South-West District, Dwarka Courts, New Delhi, 04.01.2025 Cr. No. 73/2018 State vs. Jitender Singh Page 12 of 12