State vs Rajesh Kumar @ Rakesh
2024 Latest Caselaw 1423 Del

Delhi High Court

State vs Rajesh Kumar @ Rakesh on 20 February, 2024

Author: Sudhir Kumar Jain

Bench: Sudhir Kumar Jain

                          $~

                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          %                                 Reserved on: 12th December, 2023
                                                             Decided on: 20th February, 2024
                          +      CRL.A. 882/2023

                                 STATE                                       .....Appellant
                                                    Through:     Mr. Utkarsh, APP for the
                                                                 State with SI Sunder Singh,
                                                                 P.S. Nangloi.

                                                    V

                                 RAJESH KUMAR @ RAKESH                        ..... Respondent

                                                    Through:     Mr. Ravi Kumar, Advocate
                                                                 with respondent in person.
                          CORAM
                          HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN

                          JUDGMENT

1. The present appeal is filed by the appellant/State under section

378(1) of the Code of Criminal Procedure, 1973 (hereinafter referred

to as "the Code") to impugn the judgment dated 29.08.2019

(hereinafter referred to as "the impugned judgment") passed by the

court of Shri Puneet Nagpal, Metropolitan Magistrate-10, West, Tis

Hazari Courts, Delhi (hereinafter referred to as "the trial court")

whereby the respondent was acquitted in FIR bearing no. 0031/2007

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registered under sections 279/337/304A of the Indian Penal Code

(hereinafter referred to as "IPC") at P.S. Nangloi.

2. The respondent was implicated as accused in FIR bearing no.

0031/2007 registered under sections 279/337/304A IPC at P.S.

Nangloi which was got registered on the basis of statement made by

Nitin Kumar (hereinafter referred to as "the complainant"). The

complainant stated that he along with his friend Joginder on

09.01.2007 at about 7:40 am after taking tuition were going towards

Nangloi Ext. via P.C. Kaushik Wali Gali on scooter bearing

registration no. DL 4SV 3074 being driven by Joginder and the

complainant was sitting on the pillion seat and reached at main

chowk near House no C-71, then one Maruti car bearing registration

no. DL 6CH 4547 (hereinafter referred to as "the offending

vehicle") being driven in very fast speed came and struck against

scooter, as a result of which they fell down and sustained injuries.

Joginder received serious head injuries and was removed to hospital

where Joginder (hereinafter referred to as "the deceased") was

declared as brought dead. The driver namely Rajesh Kumar was

driving the offending vehicle rashly and negligently. Rajesh Kumar

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(hereinafter referred to as "the respondent") was arrested during the

investigation.The investigation in pursuance of FIR bearing no.

0031/2007 was completed and charge sheet was filed in court of the

concerned Metropolitan Magistrate. The respondent was put to trial.

2.1 The court of Shri Gaurav Rao, Metropolitan Magistrate, West,

Tis Hazari Courts, Delhi vide order dated 04.08.2009 gave notice

under section 251 of the Code to the respondent to which the

respondent pleaded not guilty and claimed trial. The prosecution in

support of its case examined 13 witnesses including the sole eye

witness i.e. the complainant as PW3. The complainant as PW3

deposed that he along with the deceased on 09.01.2007 was going

from P.C. Kaushik Wali Gali to main extension road, Nangloi on

scooter bearing registration no. DL 4SV 3074 being driven by

deceased and the complainant was sitting on pillion seat and reached

near main chowk, then offending vehicle being driven in very fast

speed came and struck against the scooter. The complainant and the

deceased fell down on the ground and sustained injuries. The

complainant became unconscious and after regaining consciousness

noticed that the deceased was bleeding from the head. The tutor of

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the complainant and the deceased reached at the spot and the

deceased was removed to hospital in the offending vehicle. The

respondent was identified as driver of the offending vehicle at time of

the accident. The accident took place due to the negligence of the

respondent as he suddenly came from a gali without blowing any

horn and in fast speed and struck against the scooter. The

complainant also proved statement as Ex. PW3/A. The prosecution

also examined other police officials who remained connected and

participated in the investigation including the Investigating Officer

ASI Daya Chand as PW12. The statement of the respondent was

recorded under section 313 of the Code was recorded vide

proceedings dated 09.04.2018 wherein he pleaded innocence and

false implication. The respondent preferred not to lead defence

evidence.

2.2 The trial court vide the impugned judgment acquitted the

respondent for the offences punishable under sections 279/337/304A

IPC and held as under:-

27. To appreciate the above-stated arguments advanced on behalf of the accused, it is important to sift carefully, the entire evidence, both ocular and documentary, adduced by the prosecution to bring home the guilt of the accused. To

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begin with, a perusal of the FIR, which was lodged on the statement of injured Nitin shows the accused Rajesh Kumar was apprehended from the spot and a prayer was made by him to initiate appropriate legal proceedings against the accused. However, injured Nitin/PW3 has in his deposition stated that the accused had fled from the spot and that he had himself seen the accused running from the spot leaving the offending vehicle at the spot after causing the accident. At the same time, it was deposed by PW3 that some tutor bhaiya had taken the injured/PW3 and the deceased Joginder to the hospital in the same vehicle/van which had caused the accident. However, contrary to the deposition of PW3, other prosecution witnesses namely PW11 and PW12/IO, who were the police officials who had reached at the spot of the accident immediately after the accident, have deposed that they had found the offending vehicle and the scooter of PW3 in an accidental condition at the spot. The victim/injured persons or the accused was not found present at the spot. There are apparent material discrepancies in the testimony of PW3/eyewitness/injured, and therefore, the testimony of PW3 cannot be regarded of sterling quality and thus cannot be regarded as a gospel truth. Thus, I am not inclined to accept the testimony of PW3 at its face value and the same has to be approached with suspicion. The testimony of PW3 requires corroboration on materials aspects so as to form basis of the conviction of the accused.

28. At the same time, what raises further suspicion on the case of the prosecution is the fact that the owner of the offending vehicle/PW13 has categorically deposed that he had never given the offending vehicle to the accused on the day of the accident as the offending vehicle was parked at his house. This suspicion on the identity of the accused/driver further gets emboldened by the fact that no notice under section 133 M.V. Act. 1988 was ever served on PW13 during the course of the investigation to ascertain the identity of the driver of theoffending vehicle who as per the

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testimony of the sole eyewitnessPW3 had fled from the spot.

The prosecution witnesses (PW11 and PW12/IO) are inexplicably silent on manner of the investigation which lead them to decifer the identity of the driver of the offending vehicle and that too, within hours of the accident taking place.

29. Perusal of testimony of the prosecution witnesses reveals that there are discrepancies in the evidence lead by the prosecution. IO/PW12 had deposed that he had come back to the spotafter visiting Sonia Hospital along with the driver/accused and the injured/PW3/Nitin at about 10.30 am on the day of the accident. Contrary to the version of IO/PW12, PW-3 has deposed that he had remained admitted in the hospital for one day. Similarly, PW11 and PW12/IO have deposed that the documents namely Seizure memos, arrest memo etc. were made at the spot of the accident after the IO had returned to the spot at around 10.30 am. on the day of the accident. However, PW3 has deposed that he had appended his signatures on the seizure memos, arrest memo and other documents while he was admitted to the hospital. Thus, the testimony of PW3/eyewitness is not corroborated by the version deposed by IO/PW12 and PW11. It would not be exaggeration to say that the testimony of PW3 on one hand and of PW11 and PW12 on the other are mutually destructive and this is fatal to the case of the prosecution.

30. It is further pertinent to mention that PW3 has deposed that the colour of the car/van/vehicle which had hit their scooter was white whereas the colour of the offending vehicle is Red. At the same time, perusal of the mechanically inspection report of the offending vehicle records that there were fresh damages on the offending vehicle such as broken light, indicator etc. However, the IO/PW12, who had arrived at the spot of accident has failed to seize any broken glass pieces of the such headlight, indicator light of the offending vehicle which musthave

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been scattered at the spot of the accident, if the prosecution version is to be believed. Thus, these facts also raise grave doubts on the identity of the offending vehicle.

31. Thus, cumulatively seen, the prosecution has failed to prove beyond doubt the identity of the offending vehicle as well as the identity of the driver who was behind the wheels of the vehicle which had caused the accident in question.

XXX

33. At the same time, it is important to underscore the established canon of criminal law that in order to pass a conviction in a criminal case, the accused "must be" guilty and not merely "may be" guilty. The mental distance between "may be" to "must be" guilty is a long one and must be travel not on surmises and conjectures, but by cogent evidence. In this case, the accused has successfully created a doubt in the story of the prosecution in respect of the fact that he was the one who was driving the vehicle which had caused the accident in question. And as per the settled law, the benefit of doubt must go to the accused. The material on record does not suggest that the accused "must be" guilty whichever way one looks at it.

34. In view of the above discussions, the present case appears to be a fit case where benefit of doubt can be extended to the accused.

XXX

36. The accused Rajesh Kumar is hereby acquitted of the offences u/s 279/337/304-A IPC and is set at liberty.

3. The appellant/State challenged the impugned judgment on the

grounds that the impugned judgment is not sustainable in law and

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deserves to be set aside as the trial court acquitted the respondent

erroneously by concluding that the respondent is entitled to benefit of

doubt. The trial court ignored clinching evidence on record against

the respondent on the basis of the hypothetical reasoning and did not

appreciate the testimony of eye witness i.e. testimony of the

complainant as PW3 who supported the prosecution case. The

complainant as PW3 narrated the entire incident and explained the

manner of rash and negligent act of the respondent. The respondent

can be convicted on the sole testimony of the eyewitness i.e. the

complainant/PW3 and has correctly identified the respondent. The

trial court has ignored mechanical inspection reports in respect of

scooter and offending vehicle. The minor contradictions in the

testimony of the complainant/PW3 do not shake its trustworthiness

and credibility. It was prayed that the impugned judgment be set

aside and the respondent be convicted for offences under sections

279/337/304A IPC.

4. The Additional Public Prosecutor advanced arguments on the

basis of the grounds of appeal and relied on Sunil Kumar V Govt. of

NCT of Delhi, (2003) 11 SCC 367; Appabhai and another V State

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of Gujarat, 1988 Supp SCC 241; Annareddy Sambasiva Reddy

and others V State of Andhra Pradesh, (2009) 12 SCC 546 and

Rammi alias Rameshwar V State of MP, (1999) 8 SCC 649.

4.1 The counsel for the respondent advanced oral arguments and

also submitted written submissions wherein he stated that there are

material contradictions in the testimony of the sole eye witness i.e.

the complainant/PW3 and in the respective testimonies of PW11 and

the Investigating Officer PW12. The counsel for the respondent

argued that the appeal is liable to be dismissed.

5. It is reflecting from the impugned judgment that the trial court

has discussed the testimony of the complainant/PW3 who was stated

to be the sole eye-witness of the incident. The trial court in impugned

judgment observed that the prosecution has proved that the

respondent was driving the offending vehicle at time of accident and

the accident was caused by offending vehicle. The trial court also

discussed that the respondent sought acquittal primarily on the

grounds that there was no evidence to prove that Maruti Van bearing

no. DL 6CH 4547 was the offending vehicle and that the prosecution

has failed to prove that the respondent was driving the offending

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vehicle and the respondent had caused the accident. The trial court in

impugned judgment observed that the respondent as per FIR which

was got registered on basis of the statement of the complainant was

apprehended at the spot, but the complainant as PW3 deposed that

the respondent fled from the spot and that the complainant himself

had seen the respondent running from the spot and leaving the

offending vehicle at the spot after the accident. The complainant as

PW3 also deposed that their tutor had removed the complainant PW3

and the deceased to the hospital in the same vehicle/van i.e. the

offending vehicle which had caused the accident. However, PW11

and Investigating Officer PW12 who reached at the spot of the

accident immediately after the accident deposed that they had found

the offending vehicle and the scooter in accidental condition at the

spot and the victim/injured or the respondent were not found present

at the spot. The trial court accordingly opined that there are apparent

material discrepancies in the testimony of the complainant as PW3

and as such the testimony of the complainant/PW3 cannot be

regarded to be of sterling quality and as the gospel truth. The trial

court was not inclined to accept the testimony of PW3 and observed

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that the testimony of the complainant/PW3 requires corroboration on

material aspects so as to form basis of the conviction of the

respondent.

5.1 The trial court also observed in the impugned judgment that

PW13 who was owner of the offending vehicle deposed that he never

gave the offending vehicle to the respondent on day of the accident

and the offending vehicle was parked at his house and said deposition

further raised suspicion on the case of the prosecution. The trial court

further expressed doubt on prosecution case as the Investigating

Officer did not serve notice under section 133 of the Motor Vehicle

Act, 1988 on PW13 to ascertain the identity of the driver of the

offending vehicle who as per the testimony of the complainant/PW3

had fled from the spot. The trial court also noticed other

discrepancies in testimony of prosecution witnesses. The trial court

observed that the Investigating Officer PW12 deposed that he came

back to the spot after visiting Sonia Hospital along with the

respondent and the complainant PW3/Nitin at about 10:30 am on the

day of the accident while the complainant/PW3 deposed that he

remained admitted in the hospital for one day. PW11 and the

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Investigating Officer PW12 have deposed that the documents namely

seizure memos, arrest memo etc. were prepared at the spot after the

Investigating Officer returned back to the spot at around 10:30 am on

the day of the accident while the complainant/PW3 deposed that he

had appended his signatures on the seizure memos, arrest memo and

other documents while he was admitted in the hospital. Thus, the

testimony of the complainant/PW3 was not corroborated by

deposition of PW12 and PW11. The complainant/PW3 also deposed

that the colour of the offending vehicle was white whereas the colour

of the offending vehicle was red.

5.2 The trial court further observed that as per the mechanical

inspection report of the offending vehicle, there were fresh damages

on the offending vehicle such as broken light, indicator etc. but the

Investigating Officer PW12 did not seize any broken glass pieces of

the head light, indicator light of the offending vehicle which must

have been scattered at the spot of the accident which raised grave

doubts on the identity of the offending vehicle. In view these

observations, the trial court held that the prosecution has failed to

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prove the identity of the offending vehicle as well as the identity of

the driver beyond doubt and accordingly acquitted the respondent.

6. The trial court placed reliance on the contradictions, variations

and discrepancies as detailed and discussed hereinabove in

testimonies of the prosecution witnesses. There are contradictions,

discrepancies and variation in evidence led by the prosecution as

highlighted by the trial court in the impugned judgment and also

pointed out by the counsel for the respondent in arguments. It is an

accepted legal position that mere marginal variations, contradictions,

discrepancies or improvements in the statements of witnesses cannot

be fatal to the case of the prosecution and only major contradictions,

discrepancies or improvements on material facts can shake the very

genesis of prosecution case and can create doubts as to the

prosecution case. The Supreme Court in State of Punjab V Jagir

Singh Baljit Singh and Karam Singh, AIR 1973 SC 2407 observed

as under:-

23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the

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conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.

6.1 The Supreme Court in Pawan Kumar @ Monu Mittal V

State of Uttar Pradesh and Another, (2015) 7 SCC 148 held as

under:-

35. When a witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.

6.2 The Supreme Court in Bhagwan Jagannath Markad and

others V State of Maharashtra, (2016) 10 SCC 537 observed as

under:-

19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies

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are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence.

Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.

6.3 The Supreme Court in Thoti Manohar V State of A.P,

Criminal Appeal No. 1739 of 2007 decided on 15.05.2012 observed

that minor discrepancies on trivial matters not touching the core of

the matter cannot bring discredit to the story of the prosecution.

Giving undue importance to them would amount to adopting a hyper-

technical approach. The court while appreciating the evidence should

not attach much significance to minor discrepancies, for the

discrepancies which do not shake the basic version of the prosecution

case are to be ignored. It was further observed that no evidence can

ever be perfect for man is not perfect and man lives in an imperfect

world. Thus, the duty of the court is to see with the vision of

prudence and acceptability of the deposition regard being had to the

substratum of the prosecution story.

6.4 The Supreme Court in Birbal Nath V The State of

Rajasthan & others, Criminal Appeal no. 1587 of 2008 decided on

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30.10.2023 relied on Rammi V State of M.P., (1999) 8 SCC 649

wherein it was held as under:-

24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

The Supreme Court in Birbal Nath (supra) observed that lengthy

cross examination of a witness may invariably result in contradictions

but these contradictions are not always sufficient to discredit a

witness.

6.5 The contradictions, variations and discrepancies in evidence

led by the prosecution as pointed out by the trial court in impugned

judgment and counsel for the respondent are minor and insignificant

variations and do not affect the case of the prosecution. The

statement Ex. PW3/A of the complainant/PW3 was recorded on

09.01.2007 while testimony of the complainant/PW3 was recorded

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on 30.01.2013 during trial i.e. after lapse of considerable time. The

complainant/PW3 was not expected to escape from making

discrepancies but these discrepancies in the testimony of the

complainant/PW3 are not incompatible with the credibility of his

version about the accident. The discrepancies in prosecution evidence

as relied on by the trial court are not touching the core of the case

and are not enough to reject the prosecution evidence and in

particular the testimony of the complainant/PW3 as a whole. The trial

court has given undue importance to insignificant discrepancies in

testimonies of the prosecution witnesses and adopted a hyper-

technical approach. The trial court should not give much significance

to minor discrepancies. The trial has committed factual and legal

error while holding that the testimony of the complainant/PW3

cannot be regarded of sterling quality and as the gospel truth and

refused to accept the testimony of PW3.

7. Section 279 IPC deals with rash driving or riding on a public

way. It reads 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

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punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Section 337 IPC deals with causing hurt by act endangering life or

personal safety of others. It reads as under;-

337.Causing hurt by act endangering life or personal safety of others.----Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

Section 304A IPC deals with causing death by negligence. It reads as under:-

304A. 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.

7.1 Section 279 IPC punishes the act of a person driving or riding

a vehicle on a 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. Section 304A IPC punishes the act of causing death

(not amounting to culpable homicide) of a person by doing a rash or

negligent act. This court in Abdul Subhan V State (NCT of Delhi),

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133 (2006) DLT 562 while discussing about the ingredient of Section

279 and 304A IPC observed as under:-

The essential ingredients of Section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As regards the offence punishable under Section 304A IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. The Supreme Court in Mohammed Aynuddin @ Miyan V State of

Andhra Pradesh, (2007) 7 SCC 72 observed as under:-

A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.

8. The prosecution to prove guilt of the respondent primarily

relied on testimony of the complainant/PW3. A witness in a criminal

trial plays a significant role in determination of truth and is an

important constituent of the administration of justice. The witness by

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giving evidence during trial discharges a sacred duty of assisting the

court in deciding on the guilt or otherwise of the accused. It is the

quality and not the quantity of evidence which is necessary for

proving or disproving a fact. The emphasis is laid on value, weight

and quality of evidence rather than on quantity, multiplicity or

plurality of witnesses. However, evidence should have colour of

truth, credibility and trustworthiness. The prosecution does not

require number of eye witnesses to prove its case beyond reasonable

doubt. The testimony of single eye witness may be sufficient to prove

guilt of an accused. The careful analysis of testimony of the

complainant/PW3 stated that the respondent was driving the

offending vehicle at time of accident and also caused the accident.

The complainant/PW3 to constitute rash and negligence on part of

the respondent while driving the offending vehicle deposed that the

respondent was driving the offending vehicle in very fast speed and

struck against the scooter. The complainant/PW3 also deposed that

the incident took place due to the negligence of the respondent as he

came suddenly from gali without blowing any horn and in fast speed

and struck against the scooter. The respondent was driving the

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offending vehicle without taking appropriate care and caution

towards other vehicles on road. The respondent has failed to exercise

reasonable and proper care and precaution to the public generally and

to other vehicles on road. The respondent was under an obligation to

exercise reasonable and proper care and precaution while driving the

offending vehicle. The entire testimony of the complainant/PW3 is

consistent, cogent, credible and is narrative of necessary facts

sufficient to constitute guilt of the respondent. There is no inherent

inconsistency in entire testimony of the complainant/PW3 which can

shake credibility of testimony of the complainant/PW3 and hence, the

testimony of the complainant/PW3 can be safely relied on.

8.1 The prosecution also examined J. S. Pawar as PW5 who

mechanically inspected the scooter and the offending vehicle vide

Mechanical Inspection Reports Ex. PW5/A and Ex. PW5/B

respectively. PW5 during mechanical inspection of the scooter

notices damage in dikki, dent on the right side of the scooter body

and dent on engine cover. PW5 also noticed that stepany stand was

bent and the view mirror was damaged. The scooter was not fit for

road test. PW5 during mechanical inspection of the offending vehicle

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noticed fresh damages on the offending vehicle as the front bumper

was found to be came out, right head light, front right indicator and

front right corner were also found to be damaged. The offending

vehicle was found fit for road test. The damage reported on the

scooter by PW5 reflects huge magnitude of force by which the

offending vehicle struck against the scooter which also reflects

negligence on part of the respondent at time of accident.

8.2 The testimony of PW10 Dr. Manoj Dhingra who conducted

post mortem on the dead body of the deceased proved that the

deceased had died due to road accident. The post mortem report Ex.

PW10/A proved that cause of death was coma due to head injury and

all injuries were fresh and ante mortem and possibly caused due to

road accident. The prosecution as such proved that the deceased had

died due to injuries caused to him by the accident. The testimony of

PW7 Dr. P. K. Mishra who medically examined the complainant vide

MLC Ex. PW7/A also proved that the complainant received simple

injuries due to accident.

8.3 The respondent in the cross examination of the

complainant/PW-3 took the defence by giving suggestions that the

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respondent was not driving the offending vehicle which was denied

by the complainant/PW-3. The complainant/PW-3 also denied the

suggestion that no accident took place by the offending vehicle or

that the respondent was not driving the offending vehicle on the date

of accident. The respondent in the statement under section 313 of the

Code simply denied the incriminating evidence and pleaded

innocence. The defence taken by the respondent is without any basis

and is not substantiated by necessary evidence.

9. The prosecution from the evidence led by it proved that the

respondent was driving the offending vehicle on 09.01.2007 at about

07:40 am at P.C. Kaushik Wali Gali rashly and negligently so as to

endanger human life and personal safety of others and while doing so

struck against scooter bearing no DL 4SV 3074 and caused death of

the deceased and simple injuries to the complainant. The trial court

acquitted the respondent on the basis of insignificant and immaterial

discrepancies in the testimonies of prosecution witnesses and on the

basis of unsustainable assumptions and presumptions. The trial court

has not appreciated the testimony of the complainant/PW3 in right

perspective and with due application of judicial mind. The arguments

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advanced by the counsel for the respondent are considered in right

perspective which are without any legal force. There is legal force in

arguments advanced by the Additional Public Prosecutor for the

appellant/State that trial court acquitted the respondent without

properly appreciating the testimony of the complainant/PW3 and on

the basis of minor discrepancies in the testimony of prosecution

witnesses. The impugned judgment cannot sustain and is accordingly

set aside. The appeal is accordingly allowed. The respondent is

convicted for offences punishable under section 279/337/304A IPC.

10. List on 27.02.2024 for argument on quantum of sentence.

DR. SUDHIR KUMAR JAIN (JUDGE) FEBRUARY 20, 2024 SK/AK

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