Delhi District Court
State vs Naresh Kumar on 28 August, 2019
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No.514/2007
PS Keshav Puram
State Vs Naresh Kumar
Date of Institution: 24.10.2008
Date of Judgment:28.08.2019
JUDGMENT
(a) Serial Number of the case : 538269/16
(b) Date of commission of offence : 21.09.2007
(c) Name of the complainant : Sh. Vipin
(d) Name of Accused, his : Naresh Kumar,
parentage & residence S/o Sh. Ram Chander
R/O Sabdalpur, Shumali, Teshil
Hasanpur, Distr. Amroha, U.P.
(e) Offence complained of : Under Section279/337/304A IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final Order : Acquittal
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The accused Naresh Kumar has been sent to face trial for the commission of offences under Sections 279/337/304A of the Indian FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 1 of 23 Penal Code (hereinafter referred to as 'IPC') upon the allegations that 21.09.2007 at about 11.30 pm at Ganda Naala, Shanti Nagar, Tri Nagar, Delhi, he was driving Truck no. HR 46B 4274 on a public way in a manner so rash and negligent so as to endanger human life and personal safety of others and while so driving he hit against one motorcycle bearing no. DL-8SAD-4131 causing simple injuries to rider Vipin and caused the death of one Sachin not amounting to culpable homicide.
2. After completion of the investigation, the chargesheet was filed in Court upon which cognizance of the offences was taken by the Ld Predecessor and accused was summoned. The accused was admitted to bail after he entered appearance and the copy of chargesheet and the documents were supplied to him in compliance of Section 207 of the Code of Criminal Procedure.
3. Notice was then served upon the accused for the commission of offences under Section 279/337/304A of Indian Penal Code by the Ld Predecessor to which the accused pleaded not guilty and claimed trial.
4. To prove its case, the prosecution examined 12 witnesses.
5. PW1 ASI Om Prakash being the then Duty Officer proved the factum of registration of the present FIR ie Ex. PW1/A on 22.09.2007 on the basis of rukka brought by Ct. Halwant Singh which was sent by HC Umed Singh and he also proved the endorsement Ex. PW1/B on it. He FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 2 of 23 was not cross-examined on behalf of accused despite opportunity.
6. PW2 Sh. Pankaj Singhal being the registered owner of the offending vehicle bearing registration no HR-46B-4274 testified that in response to the notice served upon him under Section 133 MV Act ie Ex PW2/A, he had replied vide Ex. PW2/B as to the accused Naresh Kumar being the driver of the said vehicle during the time of the accident and that he had also produced the accused before the police officer. He correctly identified the accused in the Court, identified the vehicle through photographs Mark A to F, identified the RC ie Ex PW2/D and also produced the vehicle Ex P1 (whose identity was not disputed by the Ld defence counsel). He further testified as to having got the said vehicle released on supardari vide his application Ex. PW2/C on furnishing superdarinama vide Ex PW2/E. He was duly cross examined by the Ld. Counsel for accused wherein he testified that the IO had not explained the contents of notice under Section 133 MV act to him and that he had mentioned on the notice whatever was dictated by the IO. He further testified that he had gone to the police station on 22.08.2007 but signed as 22.09.2007. PW2 was duly re-examined by the Ld APP wherein PW2 admitted that he had not made any complaint to higher authority as to having replied to the notice under dictation of the IO but denied that he had replied to the notice voluntarily.
7. PW3 Sh. Vipin Kumar being the eye witness/injured and brother of the deceased testified that on 21.09.2007 at about 11.30 PM, he was FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 3 of 23 going from his house to his shop at Inderpuri on motorcycle bearing no. DL 4S AD 4131 with his brother/ deceased Sachin for ensuring that the shop was locked properly since when they had locked the shop, there was no electricity. He further testified that he was driving the motorcycle on which the deceased/Sachin was pillion rider and that when they reached at Ganda Nala, they were on the road which was quite wide as compared to the another road which meets at the chowk, then a truck bearing no. HR 46B 4274 came from his left side on the narrower road which truck was being driven by accused at high speed without blowing any horn and when PW3 Vipin tried to save himself by turning his motorcycle to the right, the truck hit him and pushed the motorcycle for considerable distance of about 15 feet, he heard the noise of being dragged (ghasetne ki awaaz), his eyes got closed.
8. PW3 Vipin further testified that he heard the noise of his brother and then saw that the motorcycle was lying beneath the left front tyre of the truck and he was just ahead of it upon which he came out from the truck and saw the deceased Sachin was lying under the right front tyre of the truck. PW3 further testified that he tried to pull his brother out but was unable to take him out and that he then saw the accused jumping out from the truck and running away without assisting PW3 in taking Sachin out from under the truck or keeping the truck aside after which PW3 managed to pull Sachin out and some persons gathered there. PW3 further testified that the accident took place due to total negligence of the truck driver as if he had tried to apply brakes, the FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 4 of 23 accident impact could have been avoided.
9. PW3 Vipin further testified that he called home through mobile of some public person, PCR van came and his brother was shifted to BJRM Hospital. He further testified that he gave his complaint ie Ex PW3/A to the police, he correctly identified the accused in the Court, he identified both the vehicles through Ex P1 as well as photographs Mark A to F and also identified his signatures on arrest memo and personal search memo Ex. PW3/B and Ex PW3/C in the Court. He was duly cross examined by the Ld. Counsel for accused wherein he testified that at the time of the accident, he and his brother were wearing helmets. Upon being shown the site plan, he testified that the place where Inderlok is mentioned, there should be main road Shanti Nagar and vice versa. He further testified that the site plan was not prepared in his presence. PW3 further admitted that unless and until he reached in front of the road from where the truck was coming, he could not see the truck. He further denied the suggestion that as there was an elevation of the road connecting the main road to the place of incident, the truck could not have been driven at high speed. He also denied the suggestion that his minor brother fell under the middle of the truck as he was driving the motorcycle.
10.PW4 Ct. Halwant Kumar testified that on 21.09.2007, he went with IO/HC Umed Singh to spot on receiving DD No. 46, where they saw a truck bearing no. HR46B-4274 was stationed and one motorcycle was FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 5 of 23 lying under the wheel of the said truck and they came to know that the injured had already been removed to BJRM hospital. He further testified that the IO then went to BJRM hospital after leaving him at the spot and that the IO returned at the spot at about 2.00-2.15 am and handed over the tehrir for registration of FIR to him upon which he got the FIR registered at the PS and then returned to the spot with ASI Sat Naryan to whom further investigation had been handed over. He further testified that ASI Sat Naryan then seized the abovesaid vehicles vide seizure memos ie Ex. PW4/A and PW4/B and the owner of the truck as well as the driver met them when they were taking the vehicles to the PS, the accused was arrested and personally searched vide memo Ex. PW4/C and the IO seized the DL and ownership document of the offending truck vide memo Ex. PW4/D. He further testified that Vipin had also come to the spot from the hospital and was also present during investigation on that day and had come to the PS with them. He further testified that the vehicles were deposited in the malkhana.
11.PW4 Ct Halwant Singh further testified that on 22.09.2007, he went to mortuary BJRM Hospital with IO Sat Narain where the IO conducted inquest proceedings in respect of Sachin who had expired in the hospital, IO had got the postmortem on the dead body of deceased Sachin conducted and handed over his dead body to his relatives. He correctly identified the accused in the Court and also identified his signatures on the documents. He was cross examined by the Ld. Counsel for accused.
FIR No. 514/2007PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 6 of 23
12.PW5 Sh. Radhey Shyam being the father of the deceased testified as to his son having met with an accident on 21.09.2007 and as to having identified the dead body of deceased Sachin in BJRM Hospital vide Ex. PW4/A was recorded. He further testified as to having received the dead body after post mortem vide memo Ex. PW4/B and identified his signatures thereon. He was not cross examined by the accused despite opportunity.
13.PW6 HC Umed Singh being the first Investigating Officer testified that on 21.09.2007, he had gone to the spot, i.e., Ganda Nala, Shanti Nagar crossing with Ct Hawant after receiving DD No. 46 regarding accident where they saw one truck bearing no. HR-46B-4234 and one motorcycle bearing no. DL8SAD-4131 in accidental condition. He further testified that no eye witness was found at the spot and that on inquiry, they came to know that injured has already been shifted to BJRM Hospital. He further testified as to having gone to BJRM Hospital after leaving Ct Halwant at the spot where he obtained to MLC of Sachin who was declared brought dead and Vipin who was fit for statement with simple injuries. He further testified that he recorded the statement of injured Vipin Ex. PW6/A and returned to the spot with the injured where he handed over the copy of rukka to Ct. Halwant and got registered the FIR through him. He further testified that after sometime, Ct. Halwant returned to the spot alongwith ASI Sat Narain as further investigation was marked to ASI Sat Narain. He was cross FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 7 of 23 examined by Ld. Counsel for accused.
14.PW7 HC Gyan Singh being the then DD writer proved the factum of registration of DD No. 46 ie Ex. PW7/A on 21.09.2007 at about 11.55 pm on the basis of information received from PCR Omega 50 regarding accident between one truck and motorcycle near Nala Shanti Nagar and as to injured having been taken to hospital by PCR. He further testified that said DD entry was handed over to Ct. Murari Lal to be handed over to HC Umed. He was duly cross-examined by the Ld. Counsel for accused.
15. PW8 Dr. Munish Wadhawan being Specialist, SGM Hospital testified as to having conducted the postmortem on the body of deceased Sachin on 22.09.2007 who was brought with alleged history of RTA on 21.9.2007 at about 11.30pm and he also proved his detailed report Ex. PW8/A in which he opined the cause of death as HEMORRHAGIC Shock as a result of hepatic rupture due to blunt force impact, antemortem in nature and possible in manner as alleged. He was duly cross-examined by the Ld. Counsel for the accused.
16. PW9 Retd. ASI/Tech Devender Kumar being the Mechanical Inspector testified as to having received request from IO/ASI Sat Narain on 22.09.2007 for mechanical inspection of the TATA truck Dumper bearing no. HR46B-4274 and one Hero Honda Motorcycle bearing no. DL8SAD-4131 respectively which he conducted at the PS FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 8 of 23 Keshav Puram and he proved his detailed report Ex. PW9/A and Ex.PW9/B testifying that he had found that both vehicles were having fresh damages and dumper was fit for road test and motorcycle was not fit for road test. He was duly cross-examined by the Ld. Counsel for accused wherein he testified the report Ex PW9/A had mentioned the number of the truck as HR 46B 4214 and that he had inadvertently mentioned the same.
17.PW10 Retd. SI Sat Narian being the second Investigating Officer testified as to having received the original rukka and copy of FIR on 22.09.2007 at about 4.00-4.30am from Ct. Halwant Singh as further investigation had been marked to him. He further testified that he then went to the spot where he met HC Umed and the complainant as well as one truck bearing no. HR-46B-4234 and one motorcycle bearing no. DL8SAD-4131, he then took photographs of the spot ie Mark A to Mark F from his personal camera, prepared the site plan Ex. PW10/A at the instance of eye witness/complainant Vipin, recorded the statement of HC Umed, seized the vehicles vide Ex PW4/A and Ex PW4/B, took the case property to PS and deposited it in malkhana.
18.PW10 further testified he then went to the hospital with the complainant and Ct Halwant where he prepared the inquest papers of the deceased Sachin ie Ex. PW10/B, moved an application for postmortem of deceased before concerned officer of the mortuary ie Ex. PW10/C, recorded the dead body identification statements Ex. PW10/D FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 9 of 23 and Ex.PW4/A and after post mortem handed over the dead body to the relatives of the deceased vide Ex PW4/B after which they were returning to the PS and when they reached near the PS, the complainant identified the accused.
19.He further testified that the accused and owner were taken to the PS where the notice under Section 133 MV Act ie Ex PW2/A was endorsed by the owner as to the accused driving the same. He further testified that the DL and documents of accused were seized vide Ex PW4/D and accused was arrested and personally searched vide Ex PW3/B and Ex PW3/C, accused was released on bail and statement of witnesses were recorded.
20.He further testified that he then called ASI Tech Devender at the PS and moved a request for mechanical inspection vide Ex. PW10/E and Ex.PW10/F and collected the report after mechanical inspection, recorded statement of witnesses, released the vehicles on superdari, later collected PM report,prepared challan after completion of investigation and filed it in the Court. He correctly identified the accused in the Court as well as his signatures on documents. He was duly cross examined by the Ld. counsel for accused wherein he denied having dictated the reply to the notice under Section 133 MV Act to the owner and admitted that he had not taken any receiving from the owner as to serving of the notice and also admitted that some columns were not filled in the notice as well as the arrest memo. He further admitted FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 10 of 23 that he had not filed any negatives of the photographs on file. He denied having wrongly mentioned Inderlok on the north side in the site plan or as to having wrongly mentioned Tulsi Nagar fatak on west and road no 37 on the east side. He further testified that no helmet was found at the spot when he reached there.
21.PW11 Dr. Neeraj Chaudhary, CMO BJRM Hospital testified as to having been deputed by the MS to depose about the MLC 22734. He further testified that Dr. Anand used to work with him and so he was familiar with his handwriting. He further testified the present whereabouts of Dr Anand were not known and identified the handwriting and signatures of Dr. Anand on the MLC No. 22734 Ex. PW-11/A as per which the patient was brought with alleged history of RTA and was brought dead. He was duly cross-examined on behalf of the accused.
22.Dr. Neeraj Chaudhary, CMO BJRM Hospital was again examined as PW12 during which he identified the handwriting of Dr. Anand on the ME No. 77377 ie Ex. PW12/A as per which the patient was brought with alleged history of RTA. He was duly cross examined by Ld. Counsel for accused.
23.Thereafter the prosecution evidence was closed and the statement of accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 wherein the entire incriminating evidence was put to FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 11 of 23 the accused who maintained his innocence denying having caused any accident. The accused chose to lead defence evidence and examined five witnesses in his defence.
24.DW1 Sh. Phire Singh testified that on 21.09.2007, he ordered to Mr. Pankaj for one truck load of dust and rody to be delivered at Shop no. A2, Lawrence Road, Jai Mata Market, Tri Nagar, Delhi and when on 22.09.2007, he inquired from Mr. Pankaj regarding the same, he informed that the said truck has been impounded by police officials. He further testified that site plan Ex. PW10 was incorrect as the nala mentioned in the said plan was situated on the other side of the road and when when they entered from road no. 37 towards Shanti Nagar, there is steep incline and no possibility to drive any vehicle on speed and on daily routine at point C in the site plan there is a police barricade and vehicle in question was being driven by the driver on the side road only in first gear. He was duly cross examined by Ld. APP for the State wherein he admitted that he had never driven truck and was not an expert in cars or other vehicles.
25.DW2 Sh. Devesh Sharma testified that on 22.09.2007, at about 1.00 am, they filled the truck with dust and rody and left Najafgarh towards Tulsi Nagar and when they reached at Inderlok at about 2.00 am, they entered from road no. 37 towards Shanti Nagar, there was a steep incline and on the said point there were barricade also where police stopped their truck bearing no. HR46B-4272 and demanded Rs. 2000/-
FIR No. 514/2007PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 12 of 23 as entry charges to which they refused to pay the same and on which, police official impounded their vehicle. He further testified that he accompanied the driver Naresh towards the house of owner but owner was not available at that time and they wait for the owner and accused returned to truck since it was 2.00 am. He further testified that no such incident was ever happened in his presence and on the next day, he was aware that police official impounded the aboveaid vehicle in an accident case and same was kept at Shanti Nagar Chowki. He was duly cross examined by Ld. APP for the State.
26. DW-3 Lekhraj Singh after seeing the site plan already Ex. PW10/A deposed that the locations shown in the site plan are not correct and that the said Nala mentioned in the site plan was situated on the other side i.e. Inderlok, but was wrongly mentioned on the other side i.e. main road, Shanti Nagar. He further testified that when they entered from road no. 37 towards Shanti Nagar, there is steep inclined (approx 5-6 feet height) and there is no possibility to drive any vehicle on speed. He further testified that there was police barricade on daily routine at point C and that his house was situated around 300 meter far away from the spot mentioning in the site plan. He was duly cross examined by the Ld. APP for the State.
27.DW4 Dev Dutt Sharma testified that on 22.08.2007, he had gone to Police Chowki, Shanti Nagar with his friend Pankaj Singhal and when they reached there, police official of Shanti Chowki took the signatures FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 13 of 23 of the registered owner of the vehicle i.e. Pankaj and driver namely Naresh on some papers out of which some were blank while some were filled by him. He further testified that thereafter, police officials took some documents related with truck and give dictation to the owner of the vehicle for writing of some notice reply and thereafter took his signature on the same reply. He went on to testify that after some time, IO called some person to visit police chowki and after some time police official asked a boy to identify the driver by saying that "yhi uss truck ka driver hai". He further testified that they remained there for approx. two hours after which the police official filled some bonds and released the driver and impound the vehicle documents after which they left the chowki. He was duly cross examined by the Ld. APP for the State.
28.DW5 Sh. Sanjeev Sharma testified that he was running a dhabha since 2002 and further testified that the document Ex. PW10/A was not correct as per his knowledge. He was not cross examined on behalf of State despite opportunity given.
29.Thereafter, the defence evidence was closed vide separate statement of the accused after which final arguments were advanced on behalf of both the parties which have been carefully considered along with the evidence on record.
30.It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 14 of 23 cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the accused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.
31.In the present case, the identity of the accused as being the driver of truck bearing no HR 46B 4274 has been sufficiently proved from the testimony of the eye-witness PW3 Vipin who has categorically testified that he had seen the driver of the truck jump out from the truck after the accident after which he fled from the spot without assisting PW3. He reiterated the identification of the accused by testifying that he identified the driver by his face. This testimony of PW3 Vipin remained un-rebutted as during the entire cross-examination, not even a single question was asked nor any suggestion was put by the Ld defence counsel on behalf of the accused as to the accused not driving the said truck at the time of the accident. Even the accused did not dispute the factum of him driving the truck bearing no HR 46B 4274 at the time of the accident at the time of recording of his statement under Section 281 read with Section 313 of the Code of Criminal Procedure and even DW1 Phire Singh and DW2 Devesh Sharma had testified that the accused was driving the said truck. Hence the factum of the accused driving the truck bearing no HR 46B 4274 on the day of the accident stands sufficiently proved.
FIR No. 514/2007PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 15 of 23
32.Further, the factum of the accident having been caused between the truck bearing no HR 46B 4274 and motorcycle bearing number DL- 8SAD-4131 ie the vehicle of the deceased/injured has also been sufficiently proved from the testimony of PW3 Vipin who has categorically testified that on 21.09.2007 at about 11.30pm, when he had reached at Ganda Nala on the motorcycle with his brother/deceased Sachin, they were on the road which was quite wide as compared to the other road which meets at the chowk, the truck bearing no. HR 46B 4274 came from his left side on the narrower road which truck was being driven by accused at high speed without blowing any horn and when PW3 Vipin tried to save himself by turning his motorcycle to the right, the truck hit him and pushed the motorcycle for considerable distance of about 15 feet, he heard the noise of being dragged (ghasetne ki awaaz), his eyes got closed, he heard the noise of his brother and then saw that the motorcycle was lying beneath the left front tyre of the truck and he was just ahead of it upon which he came out from the truck and saw the deceased Sachin was lying under the right front tyre of the truck.
33.The mechanical inspection reports Ex PW9/A of truck bearing no HR 46B 4274 and Ex PW9/B of the motorcycle bearing number DL- 8SAD-4131 also sufficiently corroborate the oral testimony of PW3 Vipin as to the accident having occurred between the said truck and motorcycle since fresh damage was found on the truck whose front bumper body was scratched from left side, front left side wheel tyre FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 16 of 23 was found scratched and both head lights were found broken whereas the front wheel mud guard and shocker, headlight and both indicator lights, front wheel rims and system, leg guard, handle were found damaged of the motorcycle bearing number DL-8SAD-4131 whose right side body was found scratched and rider seat was also dislocated.
34.Even the testimony of PW4 Ct Halwant and PW6 HC Umed Singh corroborates the factum of the accident having taken place between the truck bearing no HR 46B 4274 and motorcycle bearing number DL- 8SAD-4131 since they have both testified that upon reaching the spot, they had found both the said vehicles at the spot in accident condition. Nothing could be elicited in the cross-examination of the prosecution witnesses ie PW3, PW4, PW6 and PW9 to disbelieve the factum of the accident having taken place between the said truck and motorcycle.
35. However, to prove its case, it is not sufficient for the prosecution to only establish that an accident took place with a vehicle being driven by the accused and it was also imperative for the prosecution to prove that the accident took place due to the rashness and negligence on the part of the accused while he was driving the offending vehicle at the time of the accident. It has to be borne in mind that a rash act is primarily an overhasty 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 FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 17 of 23 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 (Ref:
Mohd. Aynuddin alias Miyam v. State of A.P. (2000) 7 SCC 72).
36. It has been argued by the Ld APP for the State that the negligence on the part of the accused was clear since he was driving the truck at such high speed at a crossing that he could not control his vehicle in time to prevent the incident in question and further dragged the motorcycle for 15 feet and the accused also did not blow any horn at the crossing.
37. It is pertinent to note that in accident cases, the path of the movement of the vehicles involved in the accident is required to be established during the course of investigation. (Ref: Abdul Subhan v State (NCT of Delhi) 133 (2006) DLT 562). However, in the instant case, the site plan Ex PW10/A does not reflect the direction in which either the motorcycle of the deceased was travelling nor does it reflect the direction in which the vehicle of the accused was travelling since the site plan only reflects point A where the accident took place and point B where the motorcycle bearing number DL-8SAD-4131 was found under the truck.
38. Moreover, the eye-witness PW3 Vipin has testified during his cross- examination that the site plan was incorrect in as much as the place FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 18 of 23 where Inderlok is mentioned, there should be main road Shanti Nagar and vice versa. He further testified that the site plan was not prepared in his presence. On the other hand, PW10 IO/Retd SI Sat Narain has testified that the site plan was prepared at the instance of the complainant/ PW3 Vipin and in his cross-examination he denied that the site plan was incorrect but went on to testify that on proceeding from Inderlok to Shanti Nagar, the road no 37 towards Tulsi Nagar comes first and then the ganda nala comes which testimony is contrary to the places as mentioned in the site plan Ex PW10/A. Hence, it can be inferred from the testimony of PW3 Vipin and PW10 Retd SI Sat Narain that the document Ex PW10/A does not reflect the correct position of the topography of the area where the accident took place which was essential for the prosecution to prove.
39. The failure on the part of the prosecution to prove the site plan Ex PW10/A is fatal to the case of the prosecution when read in conjunction with the testimony of PW3 Vipin wherein he had admitted that unless and until he reached in front of the road from where the truck was coming, he could not see the truck. There is no further evidence on record as to the topography of the area around the place of the accident and in the absence of the same merely on the allegation of the truck being driven in high speed and without blowing any horn is not sufficient to attribute rashness and negligence to the accused as the Court cannot resort to conjectures, assumptions and probabilities to ascribe rashness or negligence to the accused even more so as PW3 FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 19 of 23 Vipin has nowhere specified as to what was the exact speed of the offending vehicle at the time of the accident.
40. It is also pertinent to note that even if it is assumed that the vehicle of the accused was being driven in 'high speed', that in itself does not lead to the inference that there was presence of either any "negligence" or "rashness" even more so when none of the witnesses examined by the prosecution could give any indication, even approximately, as to what was meant by "high speed" as 'high speed' is a relative term and it was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. It cannot be lost sight of that in a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in this case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". (Ref State of Karnataka v Satish (1998) 8 SCC 493).
41. It is pertinent to note that the prosecution has also failed to prove the photographs of the spot and of the vehicles in question in as much as the IO/PW10 Retd SI Sat Narain testified that he had taken the photographs Mark A to F with his personal camera but admitted during FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 20 of 23 his cross-examination that the negatives of such photographs had not been placed on record but he furnished no explanation for such omission. In the absence of such negatives, the photographs Mark A to F remain unproved and cannot be looked into.
42. In the present case, since the site plan has been proved to be contrary to the actual topography and the photographs have remained unproved, no evidence has come on record to corroborate the oral testimony of PW3 Vipin as to the manner of the accident which renders the case of the prosecution weak and the benefit of the same accrues to the accused.
43. It is pertinent to note that the prosecution has also failed to prove how the accused was identified and arrested in this case in as much as the IO/PW10 Retd SI Sat Narain has categorically testified that when they were returning to the PS, the accused and owner of the truck had met them where the complainant identified him and when they reached the PS, he arrested the accused after serving notice under Section 133 MV Act upon the owner. However, the factum of the identification of the accused by the complainant has not been corroborated by the PW3/Vipin and PW4 Ct Halwant as their entire testimony is silent as to the complainant having identified the accused at any point of time prior to having identified him in the Court.
44. It is also duly noted that PW10 Retd SI Sat Narain has testified during his cross-examination that he had arrested the accused in the PS FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 21 of 23 whereas PW4 Ct Halwant has categorically testified that the accused had been arrested at the spot. There is no explanation on record to explain such discrepancy in the place of arrest and even the arrest memo Ex PW4/C does not assist the prosecution to render one version more credible than the other as the columns of place of arrest and time of arrest have not been filled by the IO nor any explanation for such omission has been furnished by the IO/PW10 even in his cross- examination which warrants an adverse inference to be drawn that the accused was not arrested in the manner projected by the prosecution.
45. It is also duly noted that the version of the prosecution also does not inspire confidence as despite PW3 Vipin testifying that he and the deceased Sachin were both wearing helmets, no such helmet has been seized by the investigating agency as PW10 Retd SI Sat Narain has categorically testified in his cross-examination that no helmet was found at the spot which casts a further suspicion on the case of the prosecution, the benefit of which accrues to the accused.
Decision
46. In view of the aforesaid discussion, with the prosecution failing to prove its case against the accused beyond reasonable doubts, the accused Naresh Kumar S/o Sh. Sh. Ram Chander, is given the benefit of the doubt and is hereby acquitted of the offence under Section 279/337/304A IPC in FIR no. 514/2007 PS Keshav Puram.
FIR No. 514/2007PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 22 of 23
47.He is directed to furnish bail bond and surety bond in the sum of Rs.20,000/- under section 437A of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon him.
48. File be consigned to Record Room after due compliance.
Announced in the open Court
on 28.08.2019 POOJA Digitally signed by POOJA
AGGARWAL
AGGARWAL Date: 2019.08.28 12:03:47
+0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 23 pages and each page bears my signature. Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2019.08.28 12:03:54 +0530 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 514/2007 PS Keshav Puram U/s279/337/304A IPC State Vs Naresh Kumar Page No. 23 of 23