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2. The case for the prosecution is that on 23.10.1995, at an unknown time, on Mathura Road near the T-point junction with Sher Shah road, the petitioner was driving a vehicle bearing registration number HR 29C 9552 in a rash and negligent manner and while so driving hit against a motorcycle bearing registration number UMS 2937 and caused fatal injury to one Gajendra Singh.

3. To establish its case the prosecution examined 12 witnesses. However only one witness, that is PW 3, head constable Munim Dutt, is listed as an eyewitness. In this case it is not in dispute that the petitioner was driving the vehicle bearing registration number HR 29C 9552 which was a Tata 608 tempo (also described as a truck). It is also not in dispute that this vehicle and the motorcycle bearing registration number UMS 2937 had a collision. It is also not in dispute that, as a result of the collision, Gajendra Singh, who was riding the motorcycle, died. The entire question in this case is as to whether, on the evidence on record, the offences under Section 279/304A IPC are made out or not?

7. At the outset I would like to observe that I am appalled by the investigation, or shall I say the lack of it, that was carried out in this particular case. I may also note that I am of the view that the testimony of PW 3 head constable Munim Dutt, even if taken to be entirely true only leads to the conclusion that the vehicle driven by the present petitioner was being driven at a high-speed. This in itself does not mean that the petitioner was driving the vehicle rashly or negligently. Furthermore, the testimony of PW 3 leads to ambiguities and doubts and, I am afraid, my conscience does not permit me to convict a person under Section 279/304A IPC on the nature and degree of evidence that is on record in this case. There are so many questions which remain unanswered. What is meant by high-speed? Were the traffic lights working or not? Why was the investigating officer not examined? Why were photographs not taken? Why is there no evidence with regard to tyre skid marks? Why was the site plan not exhibited? There are questions which remain unanswered pertaining to the motorcyclist who unfortunately lost his life in this incident. Was the motorcyclist on Mathura Road? What was his direction of movement? Was he coming from Sher Shah Road and turning towards Mathura road? Or, was he on Mathura Road turning towards Sher Shah road? What was the speed of the motorcyclist? Did the motorcyclist suddenly curve into the path of the petitioner's truck? A host of other questions remain unanswered purely because the degree of investigation carried out and the quality of investigation carried out is quite unsatisfactory. It is well known in criminal cases that it is for the prosecution to establish its case beyond reasonable doubt. Unfortunately, in the present case I find that the prosecution has failed to achieve this standard. On the other hand there are grave doubts that the petitioner is at all guilty of the offences for which he has been convicted and sentenced.

8. I, first of all, take up the testimony of PW 3 head constable Munim Dutt. His testimony indicates that at around 7:45 a.m. he was posted in the PCR van Victor 45 and was present at Mathura Road and was on rounds going towards NSCI club. The segment of Mathura Road with which we are concerned, runs practically from south to north if we travel towards NSCI club and away from Nizamuddin. The T-junction where the incident is alleged to have taken place is between Nizamuddin and NSCI club. In other words, if the testimony of PW 3 head constable Munim Dutt is to be believed then he was towards the north of the T-junction. Since he was purportedly going towards NSCI club, obviously the incident happened behind him. It is quite probable, as suggested by the learned Counsel for the petitioner, that PW 3 never saw the impact but, on hearing the sound, looked in that direction and saw the result of the same and came to conclusion that the truck must have been driven at a high-speed.

9. PW 3 has further stated that the motorcycle was also going on Mathura Road and was near the T-point. He said that the truck driven by the petitioner "was also on Mathura Road which was coming towards the side of Nizamuddin". This description could mean several things. It could mean that the motorcycle and the truck were driving in the same direction. It could also mean that the motorcycle was on Mathura Road but going towards Sher Shah Road, in other words, crossing the path of the truck which was traveling along Mathura Road itself. It could also mean that the truck was moving in the opposite direction. It is further stated that while the truck was so being driven at "a very high-speed", it hit the motorcycle "which was in the process of crossing the road towards the side of Sher Shah Road". The question that arises now is whether the motorcycle was crossing the road from Mathura road to Sher Shah Road or was coming from Sher Shah Road onto Mathura Road. If it was the former case then the motorcyclist would be clearly crossing the path of the truck being driven by the petitioner. If it was the latter case then the petitioner would have been going in the same direction as that of the motorcyclist but the motorcyclist would be merging into the path of the truck being driven by the petitioner. In both these circumstances the question that has to be asked is whether the motorcyclist was taking a turn without straying into the straight line path of the petitioner or not? If it is a case of the motorcyclist taking a turn from Mathura Road towards Sher Shah Road, a further question would have to be asked as to whether the motorcyclist was taking a turn on a green light or a red light and so too whether the petitioner was driving the tempo/truck crossing a green light or a red light? These questions remain unanswered. In fact, even the location of the point of impact is not clear because the site plan which was purportedly drawn up by the investigating officer has not been exhibited. It has not been exhibited because the investigating officer himself has not been examined as a witness. Normally the non-examination of an investigating officer would not be of much consequence unless it works to the prejudice of the accused. In this case the rough sketch which was prepared by the investigating officer and which is marked 'A' has not been introduced in evidence. If one were to examine the document marked 'A', one would see that it is at variance with the testimony of PW 3. Perhaps this is the reason why this rough sketch was not exhibited. Perhaps this is the reason as to why the investigating officer was not examined. This much must be said that had the rough sketch marked 'A' been introduced as an exhibit then it would have been detrimental to the case for the prosecution. Therefore, the non-examination of the investigating officer has certainly resulted in prejudice being caused to the petitioner. This being the case, the factum of non-examination of the investigating officer would have to be to the detriment of the prosecution case and be regarded as a circumstance in favor of the defense.