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31. The testimony of PW-1 has remained uncontroverted and unchallenged as he has not been cross examined by the accused. However, PW-1 has merely stated that the accused was riding the scooter in a rash and negligent manner and hit him from behind. At this stage, it would be relevant to refer to the Judgment delivered by the Hon'ble High Court of Delhi in the case titled as "Vinod Kumar v. State" 2012(1) RCR (criminal) 567 wherein it was held as follows, "No evidence or any other material was placed on record by State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar the prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW-10, the alleged eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one."

34. In the case at hand, Rohtak Road where the accident had allegedly taken place is a busy road and vehicles are normally at a good speed. The accident had taken place at 1.30 p.m which is not a peak hour. Hence, if a person crosses the road randomly and not using the zebra crossing, it would lead to accident as the vehicle driver would not be contemplating it.

35. Further, mere high speed of the vehicle in itself is not a rash and negligent driving. In the case titled "Abdul Subhan vs State (NCT of Delhi)" 2006 (4) LRC 472 (Del), it was held by the Hon'ble High Court of Delhi as below, State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar "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 is meant by "High Speed" in the facts and circumstances of the case. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rest on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminally 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 loquitor."

36. The Hon'ble court further observed, "In the present case also, I find that apart from the allegation that the truck was being driven at a very high speed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent. In any event there is no State v. Abhimanyu Malik U/s 279/338 IPC FIR No.923/2004 PS Paschim Vihar description or approximation of what was the speed at which the truck was being driven. The expression "high speed" could range from 30 km per hour to over 100 km per hour. It is not even known as to what the speed limit on Mathura Road was and whether the petitioner was exceeding that speed limit. Therefore, in the absence of material facts it cannot be said, merely because there is an allegation that the petitioner was driving the truck at a high speed, that the petitioner is a guilty of rash and negligent act. Clearly the petitioner cannot be convicted on the sole testimony of PW-3 which itself suffers from various ambiguities."