Delhi District Court
Sanjit Chaubey vs The State Nct Of Delhi on 24 February, 2024
IN THE COURT OF SH. ABHISHEK GOYAL,
ADDITIONAL SESSIONS JUDGE-03, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
Criminal Appeal No. 55027/2016
CNR No. DLCT01-015207-2016
SANJIT CHAUBEY,
S/o. Shri. Ram Babu Chaubey,
R/o. Village-Kaula,
P.O. Malahi, P.S. Surson,
Seetamadhi, Bihar ... APPELLANT
Versus
STATE (NCT OF DELHI) ... RESPONDENT
Date of Institution : 28.10.2016
Date when judgment was reserved : 20.12.2023
Date when judgment is pronounced : 24.02.2024
JUDGMENT
1. The present appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter, referred to as 'Cr.P.C.') against the judgment dated 26.08.2016 (hereinafter referred to as 'impugned judgment'), convicting the appellant for the offences punishable under Sections 279/304A of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), passed by the learned Chief Metropolitan Magistrate/Ld. CMM, Tis Hazari Courts, Delhi ('Trial Court/MM Court' for short) in case bearing "State v. Sanjeet Chaubey, New Case No. 298797", arising out of FIR No. 506/2007, P.S. Desh Bandhu Gupta Road and the consequent order of sentence dated 29.09.2016 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court, awarding the appellant; simple imprisonment for a C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 1 of 31 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:06:11 +0530 period of 01 (one) month along with fine of Rs. 1,000/- (Rupees One Thousand only), in default of payment of fine, to undergo simple imprisonment for a period of 07 (seven) days for the offence under Section 279 IPC; and simple imprisonment for a period of 01 (one) year along with fine of Rs. 25,000/- (Rupees Twenty Five Thousand only), in default of payment of fine, he is further sentenced to undergo simple imprisonment for a period of 01 (one) month for the offence under Section 304A IPC, sentences to run concurrently (hereinafter impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order'). Further, the said fine amount of Rs. 25,000/- (Rupees Twenty Five Thousand only) was directed to be paid by the appellant to the legal heirs of the appellant, as compensation.
2. Pithily put, the case of the prosecution against the appellant is that on 26.12.2007, at about 05:00 p.m., at T-Point, Rani Jhansi Road, near New Rohtak Road, Delhi, the appellant was driving truck bearing registration No. DL-1GA-3685 (hereinafter referred to as the 'offending vehicle') on a public road in a manner so rash and negligent so as to endanger human life and personal safety of other and while so driving, the appellant hit against the motorcycle bearing No. DL-4SBC-4322 as a result of which, the motorcyclist, namely, Gurpreet Singh Shergill fell down and passed away/expired. Pertinently, under such facts and circumstances, the FIR in question was registered on the statement of eyewitness, Ct. Naresh Kumar and upon the investigation that ensued, chargesheet was filed by the concerned investigating officer before the Ld. Trial Court for the said offences under Sections 279/304A IPC. Notably, consequent C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 2 of 31 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:06:25 +0530 upon Ld. Trial Court's taking cognizance of the offence on 21.05.2008, notice in terms of the provisions under Section 251 Cr.P.C. for the offences under Sections 279/304A IPC was framed against the appellant on 11.08.2008 and the trial commenced. During the course of trial, prosecution examined fourteen witnesses. Subsequently, on conclusion of prosecution evidence, recording of statement of the appellant under Section 313 Cr.P.C., appellant's leading witnesses in his support, as well as on conclusion of arguments on behalf of the appellant as well as by State, as aforementioned, the Ld. Trial Court vide impugned judgment and order, while holding the appellant guilty of the offences punishable under Sections 279/304A IPC, sentenced him in the manner, as noted hereinabove.
3. Learned Counsel for the appellant vehemently contended that the impugned judgment and order were passed by the Ld. Trial Court on mere conjunctures, surmises and in contravention of the settled principles of law, deserving their setting aside at the outset. In this regard, Ld. Counsel outrightly submitted that the Ld. Trial Court failed to appreciate that in the instant case, there are numerous gaping holes in the case put forth by the prosecution and that the prosecution's story does not inspire any confidence, nor appeals to the senses of a prudent man. It was further submitted that a perusal of the testimony(ies) of the various witnesses, who were examined before the Ld. Trial Court would clearly demonstrate that there are glaring, and material contradictions and the Ld. Trial Court has committed grave error by not considering the same, leading to gross miscarriage of justice to the appellant. Further as per the Ld. Counsel, the Ld. Trial Court failed to consider that the C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 3 of 31 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:06:35 +0530 prosecution had cooked up a false case against the appellant and that the investigating officer deliberately did not join Constable Subodh, despite the fact that PW-2 in his testimony before the Ld. Trial Court admitted that Ct. Subodh was present at the spot along with him and nearest to the spot of the alleged incident. Even otherwise, as per the Ld. Counsel, the testimony of PW-2 is replete with contradictions and material improvements, which does not inspire any confidence. In this regard, Ld. Counsel vehemently contended that the said witness could not point out at which point the accident in question took place and had, instead, pointed out at another spot 'Mark Y' on the site plan. Ld. Counsel, without prejudice to the same, contended that the site plan does not depict any left cut, clearly belying the case of the prosecution as well as demonstrating that PW-2 was planted on the spot. In fact, in this regard, Ld. Counsel further fervently contended that even otherwise, PW-2 did not depose regarding negligence or rashness before the Ld. Trial Court, until he was prompted and asked specific question regarding the same by the Ld. Trial Court and the Ld. Prosecutor, exemplifying that the said witness was neither trustworthy nor reliable.
4. Learned Counsel further contended that the Ld. Trial Court convicted the appellant, without appreciating that the prosecution failed to prove that the offending vehicle was being driven in a rash and negligent manner. In this regard, Ld. Counsel submitted that as per the settled law, in order to attribute criminal liability under 279/304A IPC, rashness or negligence on the part of an accused is required to be unambiguously proved, which the prosecution has failed to do in the present case. Further, as per Ld. Counsel, the Ld. Trial Court failed to appreciate that the C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 4 of 31 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:06:44 +0530 accident occurred due to negligence of the motorcycle rider who was driving his vehicle in a high speed. Ld. Counsel further submitted that the impugned judgment and order was passed by the Ld. Trial Court, oblivious of the fact that the prosecution failed to prove its case, unblemished and beyond any pale of doubt. Even otherwise, Ld. Counsel, while passing the impugned judgment and order failed to consider the testimonies of DW-1 and DW-2 and erroneously rejected their deposition under a wrong assumption that their presence on the spot was not established. Accordingly, Ld. Counsel submitted that not only did the Ld. Trial Court failed to consider the truth of circumstances and passed its judgment/decision in haste, rather, did not properly appreciate/examine the facts of the present case, wrongly holding the appellant guilty of the aforementioned offences. Consequently, the Ld. Counsel inter alia prayed that the present appeal be allowed, and the impugned judgment and order be set aside or in the alternate, relaxation be granted, releasing the appellant on probation/ Section 4 of the Probation of Offenders Act, 1958. In support of the said contentions, reliance was placed upon the decision in; Munile Shah v. State of Bihar, (1997) 3 Crimes 200 Pat.; Rajan Singh @ Bobby v. State (NCT of Delhi), Crl. Rev. Pet. 550/2015, dated 03.11.2015 (DHC); Balwan Singh v. State, Crl. Rev. Pet. 422/2009, dated 07.02.2012 (DHC); Munna Lal @ Munna v. State, dated 10.05.2006 (Allah. HC); and Suresh Chander Gupta v. State of M.P., M. Cr. C. No. 5117/2021, dated 03.09.2021 (M.P. HC).
5. Per contra, Ld. Addl. PP for the State submitted that the impugned judgment and order were passed by the Ld. Trial Court after due appreciation of the facts and circumstances of the C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 5 of 31 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:06:54 +0530 case as well as in consonance with the settled judicial precedents. Ld. Addl. PP for the State further submitted that the testimony of the complainant/PW-2 has not only been consistent, rather, unblemished as well as lucidly points towards the only inference of guilt of the appellant. In this regard, it was submitted by the Ld. Addl. PP for the State that it is settled law that conviction can be based on the sole testimony of a witness if it inspires confidence, which in the instant case is sufficiently established from the unwavering testimony of the eyewitness/PW-2. As per the Ld. Addl. PP for the State, the facts and circumstances put forth as well as the evidence placed on record, unerringly point out towards the guilt of the appellant and that no fault can be attributed to the finding of the Ld. Trial Court, which is based on proper appreciation of facts as well as law. Further, as per the Ld. Addl. PP for the State, there was no omission of fault on the part of the deceased in the instant case and even otherwise, it was submitted, the concept of contributory negligence has no role under criminal law. Accordingly, Ld. Addl. PP for the State submitted that the present appeal deserves to be dismissed at the outset, as grossly malicious and devoid of merits.
6. The arguments of Ld. Counsel for the appellant as well as that of Ld. Addl. PP for the State have been heard and the record(s), including the Trial Court Record, thoroughly perused.
7. At the outset, this Court deems it pertinent to reproduce the relevant provisions under law, for the purpose of present adjudication, as under;
"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 C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 6 of 31 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:07:03 +0530 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.
*** *** *** 304-A. 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."
(Emphasis supplied)
8. Notably, it is observed from perusal of the aforesaid provisions that the essential ingredients1 to constitute an offence punishable under Section 279 IPC are, "there must be rash and negligent driving or riding on a public way and the act must be so as to endanger human life or be likely to cause hurt or injury to any person." Concurrently, the Hon'ble High Court of Delhi in Ras Bihari Singh v. State (NCT of Delhi), 2017 SCC Online Del 12290, while explicating the ingredients of the provisions/ offence(s) under Sections 279/304A IPC inter alia observed as under;
"9. To constitute an offence under Section 279 IPC, it must be shown that the person was driving the vehicle in a rash or negligent manner. Criminal negligence or criminal rashness is an important element of the offence under Section 279 IPC.
*** *** ***
11. In a road accident case, to convict a person for the offence punishable under Section 304-A IPC, the prosecution is required to bring on record the basic requirement of the said Section i.e. "Rash or Negligent Act" with following conditions:
1) There must be death of the person in question;
2) that the accused must have caused such death; and
3) that such act of the accused was rash or negligent and that it did not amount to culpable homicide.
*** *** *** 1 Vinod Kumar v. State, 2011 SCC OnLine Del 4347.C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 7 of 31 Digitally signed by ABHISHEK
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13. Section 304A which deals with unintentional death caused by doing any rash or negligent act of the offender. The applicability of this Section is limited to rash or negligent acts which cause death but fall short of culpable homicide amounting to murder or culpable homicide not amounting to murder. To bring an offence within the ambit of Section 304A, the prosecution is required to bring on record that the act was done by an accused and the death was caused due to rash and negligent act."
(Emphasis supplied)
9. Quite evidently, in order to sustain a conviction under the provisions under Section 279 and Section 304A IPC, the prosecution is inter alia required to prove that the driver of the offending vehicle/the accused was driving the same in a rash or negligent manner and further by doing such an act, rashly or negligent, the offender endangered human life or caused death of any person, respectively. Palpably, rashness or negligence is one of the key ingredients/elements to constitute the offences under the said provisions. In this regard, it is apposite at this stage, to further make a reference to the decision of the Hon'ble Supreme Court in Rathnashalvan v. State of Karnataka, (2007) 3 SCC 474, wherein the Hon'ble Court, while explicating the contours of the terms, 'rashness' and 'negligence', observed as under;
"7. ...Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 8 of 31 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:07:20 +0530 circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted."
(Emphasis supplied)
10. Analogously, the Hon'ble Apex Court, earlier in Mohd. Aynuddin v. State of A.P., (2000) 7 SCC 72, while broaching the meaning/connotation of culpable rashness and culpable negligence, noted as under;
"9. 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 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."
(Emphasis supplied)
11. Ergo, it is quite intelligible2 that negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations, which ordinarily regulate the conduct of human affairs, would do or doing 2 Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284.
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something which a prudent and reasonable man would not do. In contrast, a rash act is a negligent act done precipitately. In fact, it is a settled law3, "Negligence is the genus, of which rashness is the species." Further, rashness consists4 in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. It is trite, the criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Needless to reiterate, under the provisions under Sections 279/304A IPC5, "negligence indicates total negligence on the part of the driver. It means that he was driving the vehicle in such a negligent way which would stamp his driving by only word "negligence". Rashness indicates that he drives the vehicle in such a way while driving he knows that by such driving, he is likely to invite an accident but hopes that such accident may not occur."
12. Consequently, mindful of the principles hereinunder noted, this Court would now appreciate the evidence and material placed on record. At the outset, it is pertinent to refer to the deposition/testimony of the complainant/eyewitness, Ct. Naresh Kumar/PW-2, before the Ld. Trial Court, who deposed about the incident in question. As per Ct. Naresh Kumar/PW-2, on 26.12.2007, while he was posted at Traffic Pahar Ganj circle, with his duty hours from 08:00 a.m. to 08:00 p.m., at T-point, New Rohtak Road, Rani Jhansi Road, New Delhi, at around 05:00 p.m., one motorcycle no. DL4SBC4322 was coming from Jhandewalan side and turning towards New Rohtak Road and one truck No. DL1GA3685 was coming from back side and hit the 3 Prabhakaran v. State of Kerala, (2007) 14 SCC 269. 4 S.N. Hussain v. State of A.P., (1972) 3 SCC 18. 5 Jayprakash Laxman Tambe v. State of Maharashtra, 2003 SCC OnLine Bom 1176.
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motorcycle from behind. Pertinently, in response to a question being posed regarding the manner in which the truck in question/offending vehicle was being driven, Ct. Naresh Kumar/PW-2, deposed that the accused/appellant was driving the truck at a high speed and in a rash and negligent manner. Ct. Naresh Kumar/PW-2 further affirmed that the injured/motorcycle rider had fallen down on the road and that he/Ct. Naresh Kumar/PW-2, apprehended the accused/appellant at the spot and handed over the same to Ct. Subodh. Thereafter, Ct. Naresh Kumar/PW-2 took the injured to RML Hospital where the doctors declared him brought dead and subsequently, he/Ct. Naresh Kumar/PW-2, returned to the spot where he met the IO/SI Om Prakash, to whom, he/Ct. Naresh Kumar/PW-2, handed over the truck, accused and motorcycle. During the investigation, the IO seized the motorcycle, truck and documents of truck and arrested the accused as well as conducted his personal search vide Ex. PW2/A, B, C, D and E, bearing the signatures of Ct. Naresh Kumar/PW-2 at point A, each. Ct. Naresh Kumar/PW-2 further proved his complaint as well as identified the appellant, correctly before the Ld. Trial Court.
13. Relevantly, in his cross examination, Ct. Naresh Kumar/PW-2 inter alia affirmed that the T-point road, towards left, goes towards New Rohtak Road Liberty Cinema side and that red light was installed there. Further, as per Ct. Naresh Kumar/PW-2, the volume of traffic between 05-06 p.m. are normal at the spot. At the same time, Ct. Naresh Kumar/PW-2, affirmed in his cross examination that the motorcycle bearing DL4SBC4322 was coming from Jhandewalan Mandir and going towards New Rohtak Road and that was on the left side of the C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 11 of 31 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:07:42 +0530 truck. Relevantly, Ct. Naresh Kumar/PW-2 denied the suggestion that the said motorcycle was trying to overtake the truck from left side, rather, declared that the said motorcycle was ahead of the said truck. Concomitantly, as per Ct. Naresh Kumar/PW-2, the truck had stopped within 10 (ten) feet at the spot where the accident was shown on the site plan/Ex. PW2/F. Needless to mention that though, Ct. Naresh Kumar/PW-2, in his cross examination asserted that, both, the motorcycle driver as well as the accused/appellant were driving at high speed, however, denied that the accident did not take place due to the negligent driving of the truck driver, rather, was resultant due to the wrong overtaking by the motorcycle rider, as proposed by/on behalf of the appellant before the Ld. Trial Court. Significantly, in his cross examination, Ct. Naresh Kumar/PW-2 further affirmed that the truck struck the motorcycle from the left side bumper of the truck and the accused/appellant had already got down from the vehicle, when he/Ct. Naresh Kumar/PW-2, caught hold of him/the appellant.
14. Germane for the purposes of the present discourse to make a reference to the testimony of PW-7/Sh. Sanjeev Kumar Goswami before the Ld. Trial Court, who asserted that vehicle bearing no. DL1GA3685 (truck/offending vehicle) was registered in the name of Khan Enterprises, 1407, B-Block, SP Mukherjee Market, Rani Jhansi Road. Further, as per PW-7/Sh. Sanjeev Kumar Goswami, Sh. Ajmeri Khan was a partner of Khan Enterprises, under whose attorney/Mark-X1, he/PW-7/Sh. Sanjeev Kumar Goswami, had replied to the notice under Section 133 of the Motor Vehicle Act, 1988/MV Act, affirming that on 26.12.2007 at around 05:00 p.m., the appellant was driving the C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 12 of 31 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:07:47 +0530 said vehicle at the spot of incident, i.e., at Rani Jhansi Road, New Rohtak Road, Delhi. Pertinently, the said witness was not cross examined on behalf of/by the appellant before the Ld. Trial Court. Further, relevantly, PW-10/Dr. Jatin Bodwal in his deposition before the Ld. Trial Court affirmed that on 27.12.2007, while being posted at MAMC, in the Department of Forensic Medicine as Junior Resident, he had conducted the post- mortem on the body of the deceased, Gurpreet Singh Shergill vide post-mortem report no. 9020/07/Ex. PW10/A, opining the cause of death as combined effect of cranio-cerebral damage and hemorrhagic shock consequent to blunt force trauma/surface impact to head and abdomen. Further, as per PW-10/Dr. Jatin Bodwal, all the injuries were opined to be ante-mortem in nature, about one day duration and possible in road traffic accident. Here it is further pertinent to refer to the testimonies/depositions of PW-1/Ms. Poonam, wife of the deceased; PW-3/Shri. Amit Kumar, brother-in-law of the deceased; and PW-4/Shri. Jeet Singh Shergill, father of the deceased, who all identified the deceased/body of deceased as (that of) Gurpreet Singh Shergill.
15. Before proceeding further with the appreciation of the aforenoted testimonies of the prosecution witnesses, it would be relevant to deal the objection of the Ld. Counsel for the appellant, inter alia, to the effect that PW-2/Ct. Naresh Kumar deposed about the factum of rashness and negligence only upon prompting from the Ld. Prosecutor before the Ld. Trial Court, belying his testimony/statement regarding the said fact. However, in this regard, this Court outrightly makes a reference to the relevant provisions under the Indian Evidence Act, 1872/Evidence Act as under;
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"141. Leading questions-Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.
142. When they must not be asked-Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.
The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.
143. When they may be asked-Leading questions may be asked in cross-examination."
16. Pertinently, from a perusal of the records of the Ld. Trial Court, this Court unambiguously observes that the question which was asked from PW-2/Ct. Naresh Kumar by the Ld. Prosecutor before the Ld. Trial Court, cannot in any manner be termed as a leading question as to suggesting in any manner, "the answer which the person putting it wishes or expects to receive, is called a leading question". On the contrary, the same was a simpliciter question pertaining to the manner in which the offending vehicle was being driven, i.e., "How accused was driving the Truck?"; without the Ld. Prosecutor either prompting, making any suggestion or indicating the answer, which was sought to be elicited from PW-2/Ct. Naresh Kumar. Accordingly, the bar envisaged under Sections 142/143 of the Evidence Act would not be applicable in the said scenario as the said question, intelligibly, cannot be termed as a 'leading question'. In the alternate, presuming the said question to be one that was posed by the Ld. Trial Court to PW-2/Ct. Naresh Kumar, as contended by the Ld. Counsel for the appellant, same too, in the considered opinion of this Court was well within the domain of the Ld. Trial Court's jurisdiction under Section 165 of the C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 14 of 31 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.02.24 17:08:01 +0530 Evidence Act. Clearly, the same was meant to elicit relevant answers from witnesses, in contradistinction to filling in the lacunae of the prosecution's case, and hence, not barred under law. In this regard, reference is made to the decision of the Hon'ble Supreme Court in Rajendra Prasad v. Narcotic Cell, (1999) 6 SCC 110, wherein the Hon'ble Court, whilst confronted with an akin quandary, noted as under;
"7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the court could not "fill the lacuna in the prosecution case". A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up."
(Emphasis supplied)
17. Remarkably, another aspect on which the Ld. Counsel for the appellant has sought to challenge the conviction of the appellant by the Ld. Trial Court, premised on the testimony of Ct. Naresh Kumar/PW-2 pertains to the Ld. Counsel's averment that the testimony of the said witness is not reliable as the same being that of a police official. However, the said contention, too, does not find any favour with this Court in light of the persistent avowals of various courts, declaring the police officials as competent witness in criminal trials/cases. Relevant in this regard, to make a reference to the decision of the Hon'ble Supreme Court in Govindaraju v. State, (2012) 4 SCC 722, wherein the Hon'ble Court, in an akin context observed as under;
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"30. It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness."
(Emphasis supplied)
18. Needless to further observe for the purpose of present discourse that even on a general principle of law, it is no longer res integra6 that there is no legal hurdle in convicting a person on the testimony of a single/sole eyewitness if his version is clear and reliable, for the principle of law/rule of evidence is that the evidence has to be weighed and not counted. Relevantly, in this regard, the Hon'ble Supreme Court in Sunil Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367, noted as under;
"9. Vadivelu Thevar case [AIR 1957 SC 614:
1957 Cri LJ 1000] was referred to with approval in the case of Jagdish Prasad v. State of M.P. [1995 SCC (Cri) 160: AIR 1994 SC 1251] This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The 6 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 16 of 31 Digitally signed
ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:08:14 +0530 test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
(Emphasis supplied)
19. Ergo, in light of the foregoing, when the testimonies of the witnesses brought on record, in particular that of PW-2/Ct. Naresh Kumar and PW-7/Sh. Sanjeev Kumar Goswami are read in conjunction, the presence of the appellant at the spot at the time of the incident in question, and that of the appellant being the driver of the offending vehicle stands duly corroborated and established. In fact, it is neither the case of the appellant before the Ld. Trial Court nor is any evidence/suggestion put forth to any of the prosecution witnesses by/on behalf of the appellant to rebut his/appellant's presence on the spot at the relevant time as well as of the aforesaid factum of him/the appellant being the driver of the offending vehicle at that point in time. Needless to mention that the appellant was duly apprehended at the spot by PW-2/Ct. Naresh Kumar, which fact also stands duly proved by the prosecution and unrebutted by the defence/appellant before the Ld. Trial Court. Relevant to further observe at this stage that the mere fact that the prosecution opted not to produce Ct. Subodh as one of its witnesses before the Ld. Trial Court cannot be read against the prosecution in light of the decision of the Hon'ble Supreme Court in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200, wherein the Hon'ble Court in a similar situation, held as under;
"34. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 17 of 31 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.02.24 17:08:22 +0530 the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it."
(Emphasis supplied)
20. Here it is relevant to note that another aspect on which the appellant has fervently argued before the Ld. Trial Court as well as this Court is that the accident in question did not occur due to the fault/omission, rashness, or negligence of the appellant, rather due to the omissions on the part of the deceased. However, in this regard, it is apposite to outrightly note that the appellant has adduced separate versions of its defence before the Ld. Trial Court. Strikingly in this regard, while the appellant in the cross-examination of the prosecution witnesses has sought to lay down a foundation of his defence by suggesting that the accident in question resulted due to the motorcycle, attempting to overtake the appellant's truck/offending vehicle. However, in his statement under Section 313 Cr.P.C., in a diametrically opposite and contrasting terms, the appellant endeavored to assert that the deceased slipped from his said motorcycle and fell down on the road, resulting in the accident. In fact, both, the defence witnesses, DW-1/Sh. Sanjay Mandal and DW-2/Sh. Ajay Mandal deposed before the Ld. Trial Court on similar lines, as the latter, that the motorcycle rider took a sharp turn near the red light and his motorcycle slipped, the rider fell on the road, and he came under the offending truck. However, considering the antithetical nature of the appellant's defence, at two different stages of the proceedings, this Court is in consonance with the observation of the Ld. Trial Court that not much credence can be accorded to a completely novel version of the appellant's defence, C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 18 of 31 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:08:28 +0530 basis/foundation of which was never laid down in the appellant's cross examination of the prosecution witnesses. In this regard, reference is made to the decision of the Hon'ble High Court of Madhya Pradesh in Suresh Chandra Gupta v. State of Madhya Pradesh, Crl.M.C. No. 5117/2021, dated 26.10.2021, wherein the Hon'ble Court, confronted with a similar conundrum, responded as under;
"...It is basic principle of the trial that accused has to establish his defence by cross examination of the prosecution witness and it cannot be termed that the accused defence shall start only at the stage of defence evidence. By confronting the prosecution witness with evidence and rebutting them by cross examination is the defence of the accused at the stage of prosecution evidence also. For free and fair trial, the trial court is bound to allow the accused to furnish all relevant documents for his defence at any stage. The impugned order is per-se illegal and arbitrary. Hence, he prayed that this petition should be allowed and impugned order should be quashed and the application filed by the petitioner under Section 91 of Cr.P.C. for taking documents on record be also allowed."
(Emphasis supplied)
21. Conspicuously, quite recently, the Hon'ble Supreme Court in Balu Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC 355, elucidating the purpose and object behind cross examination of witness(es), noted as under;
"43. The main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the accused..."
(Emphasis supplied) C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 19 of 31 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.02.24 17:08:33 +0530
22. Quiet perspicuously, in light of the foregoing discussion, this Court unambiguously reiterates that the contrasting versions of defence sought to be established by the appellant before the Ld. Trial Court do not inspire much confidence and are worthy to be rejected at the outset. Needless to further mention that this Court is also unison with the observation of the Ld. Trial Court regarding the credibility of DW-1 and DW-2 for the reason that their presence on the spot; and the manner in which the said witnesses were traced by the appellant after a gap of a considerable period of time from the incident has not been explained either by the appellant or the said witnesses before the Ld. Trial Court. Further, this Court is also in congruity with the finding of the Ld. Trial Court that at no point in time, prior to the recording of the respective deposition of DW-1 and DW-2 before the Ld. Trial Court, after a gap of around nine years, there has been any indication by the appellant or the said witnesses about their version of the incident in question before any authority or the Ld. Trial Court. Needless to reiterate that even the appellant, in his cross examination before the Ld. Trial Court did not cross examine the prosecution witnesses or made any suggestion on the line that the accident had occurred due to the motorcycle rider slipping while taking a sharp left turn and consequently, coming under the offending vehicle. On the contrary, as aforenoted, the consistent line of defence of the appellant, upto the stage of recording of appellant's statement under Section 313 Cr.P.C. as well as deposition of DW-1 and DW-2 had been that the accident occurred as the deceased was attempting to overtake the offending vehicle, clearly belying the appellant's stand.
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23. Notwithstanding the foregoing, undoubtedly, from the material placed on record it is quite palpable that the appellant failed to prove his defence before the Ld. Trial Court. However, here, it is relevant to determine/ascertain, whether the prosecution in the instant case has been able to discharge its burden of proving the requisite mens rea on the part of the appellant, without which no culpability can be attributed to the appellant. In fact, it is a settled law7 that rashness/negligence cannot be presumed in a particular case, rather, onus is heavy upon the prosecution to prove rash and negligent driving to attribute/bring home criminal charges against an accused. Needless to mention that the onus in this regard vests primarily on the prosecution to prove the necessary culpability on an accused, 'beyond reasonable doubt' and it is only upon the prosecution establishing a foundation of its case, can an accused be expected to rebut the same by 'preponderance of probability' or by proving general defence. It is trite law8, "it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused".
24. Consequently, in order to determine the aforesaid aspect, it is apposite to refer and reiterate the testimony of Ct. Naresh Kumar/PW-2, wherein he inter alia deposed that the offending vehicle was being driver at a high speed, in a rash and negligent manner and that the said truck had hit the motorcycle of the deceased from behind. Further, as aforenoted, Ct. Naresh 7 State of H.P. v. Baishakhi Ram, 2019 SCC OnLine HP 911 8 State of Punjab v. Kewal Krishan, 2023 SCC OnLine SC 746; and Sawal Das v. State of Bihar, (1974) 4 SCC 193.
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Kumar/PW-2, in his cross examination confirmed that the said motorcycle at the relevant point in time was on the left side and ahead of the truck/offending vehicle and that it was hit from the left side bumper of the truck/offending vehicle. Evidently, nowhere in his testimony, Ct. Naresh Kumar/PW-2 gave any indication as to an estimation and/or an indication of speed of the offending vehicle, except to the extent, asserting that the same was being driven at a 'high speed' or elucidated the manner in which the vehicle was stated to be driving 'rashly or negligently'. Further, not only did Ct. Naresh Kumar/PW-2 depose that the offending vehicle stopped within a distance of 10 feet from the impact, rather, nothing has been placed on record to demonstrate whether or not there were any skid marks, attempt of the offending vehicle to overtake the motorcycle in question, appellant driving from wrong side, etc. In fact, even the site map in the instant case is not of much assistance in the present case, as the same does not in any manner demonstrate rashness or negligence in the conduct of the appellant. Needless to further observe, except for the front leg guard of the motorcycle being found with scratches, no other marks were found on either of the said vehicles/motorcycle or the offending vehicle.
25. Significant at this stage to observe that it is a settled law that merely driving a vehicle with high speed does not denote driving the vehicle, rashly and negligently. As a corollary, no culpability can be attributed to a driver of a vehicle merely for the reason that the offending was being driven in high speed, for the want of clear and unambiguous proof of rashness or negligence on behalf of/by such a person/accused. Reference, in this regard is made to the decision of the Hon'ble Supreme Court C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 22 of 31 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:08:51 +0530 in State of Karnataka v. Satish, (1998) 8 SCC 493, wherein the Hon'ble Court while confronted with the akin issue noted as under;
"4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case."
(Emphasis supplied)
26. Similarly, the Hon'ble High Court of Delhi9 in Ram Chander v. State, 2017 SCC Online Del 11763, in the similar context held as under;
"13. In a road accident case, to convict a person for the offence punishable under Section 304-A IPC, the prosecution is required to bring on record the basic requirement of the said Section i.e. "Rash or Negligent Act".
9 Reference also made to the decision of the Hon'ble High Court of Delhi in; Abdul Subhan v. State (NCT of Delhi), 2006 SCC OnLine Del 1132.
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15. A reading of aforesaid Section shows that to constitute an offence under Section 279 IPC, it must be shown that the person was driving the vehicle in a rash or negligent manner. Criminal negligence or criminal rashness is an important element of the offence under Section 279 IPC. Mere fact that the accused was driving the vehicle at high speed may not attract the provisions of Section 279 IPC and the prosecution is required to bring on record such negligence and rashness. High speed by itself may not in each case be sufficient to hold that a driver is rash or negligent. Speed alone is not the criterion for deciding rashness or negligence on the part of the driver.
*** *** ***
18. The prosecution had to prove that there was a direct nexus between the death of the person and rash and negligent act of the petitioner. The mere fact that a person knocked down and died, the presumption of negligence against the petitioner cannot be drawn. The fact the death of the deceased was caused by rash and negligent driving has to be proved by the prosecution as merely driving at a high speed does not denote driving in a rash manner and the petitioner cannot be held guilty for causing the death of the deceased. In order to impose criminal liability on the petitioner, it must be found as a fact that collision was entirely or atleast mainly due to the rashness or negligence on the part of the petitioner who was driving the vehicle."
(Emphasis supplied)
27. At this stage, it is further pertinent to note that the superior courts have also assiduously cautioned regarding drawing of any presumption of rashness or negligence merely for the reason of occurrence of a fatal accident10 or for the reason of demise of an innocent person in road accident. In fact, not only is any such presumption, not envisaged under law, rather, the same cannot absolve the prosecution of proving the basic ingredients of the offences under Sections 279/304A IPC. Appositely, the Hon'ble High Court of Delhi in this regard in Narender v. State 10 State v. Hari Singh, 1968 SCC OnLine Raj 1: AIR 1969 Raj 86.
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(Govt. of NCT of Delhi), 2021 SCC Online Del 4729, noted as under;
"21. In the instant case, on the mere fact that an innocent died in a road accident, the presumption of rashness and negligence against the petitioner cannot be drawn. Reference may be taken in this connection of the observation made by another Bench of this Court in State (NCT of Delhi) v. Jagbir Singh reported as 2019 SCC Online Del 8401, where it was held that:--
"20. ...It is necessary to avoid being influenced by the prejudice arising out of the loss of a life which is a dominant factor in cases of accident."' (Emphasis supplied)
28. Considering the facts of the present case, this Court further deems it apposite to also refer to the observations made by the Hon'ble Supreme Court in Shakila Khader v. Nausheer Cama, (1975) 4 SCC 122, wherein the Hon'ble Court expounded few of the factors, necessary for determining rashness and/or negligence, as under;
"6. The facts in the case speak eloquently about what should have happened. The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic, and the attempt, as in this case, to overtake the other vehicles resulting in going to the wrong side of the road and being responsible for the accident. Even if the accident took place in the twinkling of an eye it is not difficult for the eyewitness to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle travelling on that side of the road..."
(Emphasis supplied)
29. Additionally, to comprehensively appreciate the instant quandary, it is germane to make a reference to the decision of the Hon'ble High Court of Delhi in Kishore Chand Joshi v. State, 2018 SCC Online Del 12337, while declaring that a witness is incompetent to render an opinion as to 'rashness or C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 25 of 31 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:09:10 +0530 negligence', observed as under;
"16. PW-2 has given his opinion about the manner of driving. Rash and negligent manner is an opinion which may vary from person to person depending on the perception of an individual. What may be "rash and negligent" for one may not be "rash and negligent" for another. For one person, driving at a speed of 80 may be high speed and rash and negligent and for another it may not be.
17. A witness can depose as to the manner of driving or speed at which the vehicle was being driven but not render an opinion on "rash and negligent". High speed by itself may not in each case be sufficient to hold that a driver is rash or negligent. Speed alone is not the criterion for deciding the rashness or negligence on the part of the driver (Ram Chander v. State, 2017 [4] JCC 2676)."
(Emphasis supplied)
30. Evidently, from the exposition of law outlined hereinabove, it is reiterated that in order to establish charges/offence under Sections 279/304A IPC, the commission of a rash and negligent act has to be proved by the prosecution that too, 'beyond reasonable doubt'. Concurrently, in conspectus of the foregoing it is reasonably deduced that the words, 'high speed', surfacing in the testimony of witness(es) is not sufficient to unambiguously bring home the case/charges under Sections 279/304A IPC against an accused for the reason that the said term is not only quite relative, rather, inadequate to bespeak of negligence or rashness, which is essential element of the said offences. It is further reiterated that there is no presumption under law of rashness or negligence merely for the reason of occurrence of a fatal accident or for the reason of demise of an innocent person in road accident, which the superior courts have insistently cautioned the trial courts to be wary of when confronted with the cases/prosecution under the relevant provisions of law. Similarly, there can be no presumption under C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 26 of 31 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.02.24 17:09:16 +0530 law regarding such culpable mens rea simply for the reason that the impact in an accident was caused by the offending vehicle from behind, in the absence of any material particulars/elaboration of incident in question. Needless to mention, such culpability must unfold from evidence brought forth on record and cannot be deduced by Court on mere assumptions. Further, as aforenoted, witnesses to an incident of road accident can only depose as to the manner of driving or speed at which the vehicle was being driven but not render an opinion on "rash and negligent".
31. Ergo, in light of the foregoing exposition of law, when the facts of the present case are appreciated, especially in light of the testimony of the eyewitness, Ct. Naresh Kumar/PW- 2, as hereinunder noted, this Court finds itself difficult to be convinced that the prosecution has been able to prove/attribute the requisite mens rea of rashness and/or negligence to the appellant herein, in the facts and circumstances of the present case. Needless to reiterate that the only fact forthcoming from the testimony(ies) of the prosecution witness(es), in particular from the deposition of Ct. Naresh Kumar/PW-2 before the Ld. Trial Court in regard the aforesaid is the appellant driving the offending vehicle and hitting the deceased's motorcycle from the same. However, in light of the foregoing, mere enunciation of words 'high speed in rash and negligent manner' would not, in the opinion of this Court, be sufficient to bring home charges/culpability on the appellant. Apposite to further note that the Ld. Trial Court, under the impugned judgment has further reached a finding regarding the accident having occurred at a sharp turn, without appreciating the fact that none of the C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 27 of 31 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.02.24 17:09:22 +0530 prosecution witnesses, in their statements had deposed anything regarding the accident having occurred at a 'sharp turn' and that the said fact emerged only under the statement of the appellant, recorded under Section 313 Cr.P.C. Clearly, in the opinion of this Court, the said element/fact of 'sharp turn' could not have been relied upon by the Ld. Trial Court, while considering only a part of statement of the appellant under his statement under Section 313 Cr.P.C., discarding the exculpatory part thereof. Apposite in this regard to note here that this Court is cognizant of the settled law11 that the statement of the accused under Section 313 CrPC can be used for corroborative purpose, however, the same cannot be a substitute for the evidence of the prosecution or can be used to fill in the lacunae/gaps left by the prosecution in its case. In this regard, reference is made to the decision of the Hon'ble Supreme Court in Mohan Singh v. Prem Singh, (2002) 10 SCC 236, wherein the Hon'ble Court observed as under;
"30. The statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant [(1969) 1 SCC 347 : AIR 1969 SC 422] by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction."
(Emphasis supplied)
32. Similarly, the Hon'ble Supreme Court in Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722, in regard the 11 Ashok Kumar v. State of Haryana, (2010) 12 SCC 350 and Ashok Singh v. State of U.P, 2016 SCC OnLine All 290.
C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 28 of 31 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:09:27 +0530 aforesaid observed as under;
"41. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 CrPC is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 CrPC cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 CrPC is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 CrPC. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become a witness against himself."
(Emphasis supplied)
33. Conclusively, in view of the above discussion, this Court reiterates that the prosecution has failed to establish the requisite mens rea against the appellant herein, bereft of which no culpability under Sections 279/304A IPC can be attributed upon the appellant. Needless to mention that though it holds highest regard for the decision of the Hon'ble High Court of Delhi in Paras Nath v. State (NCT of Delhi), 2003 SCC OnLine Del 369, as relied upon by the Ld. Addl. PP for the State in C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 29 of 31 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:09:32 +0530 support of his contentions, however, the same would not come to the aid of the State, in the manner as proposed, as the facts and circumstances of the present case are clearly distinguishable12.
34. Accordingly, in light of the foregoing explication/ discussion, the present appeal deserves to be allowed and is hereby allowed. As such, this Court reiterates that from the facts and circumstances placed on record, the appellant cannot be determined to be guilty, 'beyond reasonable doubt', of any offence as charged and convicted/sentenced with by the Ld. Trial Court. Needless to further mention at this stage that it is trite law13 that if two views are possible, the one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted. Consequently, the judgment dated 26.08.2016 and order of sentence dated 29.09.2016, passed by the Ld. Chief Metropolitan Magistrate/Ld. CMM, Tis Hazari Courts, Delhi in case bearing "State v. Sanjeet Chaubey, New Case No. 298797", arising out of FIR No. 506/2007, P.S. Desh Bandhu Gupta Road, convicting and sentencing, respectively, the appellant for the offences punishable under Sections 279/304A IPC are hereby set aside. The appellant is hereby admitted to bail on furnishing of a personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand only) along with one surety of the like amount, as required under section 437A Cr.P.C. As requested, the bail bond be furnished within a period of one week.
35. Trial Court Record be sent back along with the copy of this order.
12 Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani, (2004) 8 SCC 579 13 Raghunath v. State of Haryana, (2003) 1 SCC 398 C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 30 of 31 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:09:39 +0530
36. Appeal file be consigned to record room after due compliance. Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.02.24 17:09:49 +0530 Announced in the open Court (Abhishek Goyal) on 24.02.2024. ASJ-03, Central District, Tis Hazari Courts, Delhi C.A. No. 55027/2016 Sanjeet Chaubey v. State (NCT of Delhi) Page 31 of 31