Delhi District Court
State vs Anil on 5 April, 2025
In the Court of Ms. Isra Zaidi: JMFC-04, North East, Karkardooma Courts, Delhi
State Vs. Anil Kumar
FIR No. 109/2015
U/sec. 279/304A IPC
PS: Karawal Nagar
Date of institution of the case: 09.03.2016
Date for final arguments: 20.03.2025
Date on which judgment is delivered: 05.04.2025
CNR No. DLNE-02-000981-2016
JUDGMENT
a) Cr. No. of the case : 407/2016
b) Date of commission of the offence : 06.02.2015
c) Name of the complainant : ASI Shiv Shankaar
d) Name of the accused and his parentage : Anil Kumar
S/o Sh. Ved Prakash
e) Offence complained of : Section 279/304A IPC
f) Offence charged of : Section 279/304A IPC
g) Plea of the accused : Pleaded not guilty
h) Final order : Acquitted
i) Date of such order : 05.04.2025
Digitally
signed by
ISRA ISRA ZAIDI
Date:
ZAIDI 2025.04.05
16:02:26
+0800
FIR No.109/2015 1/14 State Vs. Anil Kumar
Brief facts of the case
1. Succinctly stated the facts discernible from the present complaint are that on
06.02.2015 vide DD No.22A it was informed by the caller that an accident had taken
place near Toll Tax, Karawal Nagar which was marked to ASI Shiv Shankar.
Thereafter, Ct. Sonu went to the spot wherein he was informed that injured was taken
to Trauma Centre. Thereafter, FIR was registered against Anil Kumar (hereinafter
referred to as the accused) u/s 279/304A IPC.
Court Proceedings
2. After completion of the investigation, charge-sheet under sections 279/304A
IPC was filed before the court against the accused. The then Learned Magistrate took
cognizance on 09.03.2016 and accused was summoned to face the trial. On his
appearance in the Court, copies of documents, relied upon by the prosecution were
supplied to him as per norms. Thereafter, vide order dated 03.03.2017 charges under
sections 279/304A IPC were framed against the accused Anil Kumar to which he
pleaded not guilty and claimed trial. Thereafter, the matter was listed for PE.
Prosecution Evidence
3. In order to prove and substantiate its case, the prosecution has examined
following witnesses.
Prosecution Witnesses
S. No. Witness number Name of the witness
1. PW1 Sh. Jagvinder Singh
2. PW2 HC Ashok Kumar
3. PW3 Sh.Ravi
4. PW4 Retd.SI Meghan Singh
5. PW5 HC Sonu Singh
6. PW6 Retd. ASI Shiv Shankar Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 2025.04.05
16:03:19
+0800
FIR No.109/2015 2/14 State Vs. Anil Kumar
Documents relied upon by the prosecution
S. No. Ex./Mark Nature of documents
1. Ex. PW1/A Dead body identification memo
2. Ex. PW1/B Dead body handling over memo
3. Ex. PW2/A Site plan
4. Ex. PW2/B Arrest memo
5. Ex. PW2/C Personal search memo
6. Ex. PW2/D Disclosure statement
7. Ex. PW3/A Dead body identification memo
8. Ex. PW3/B Dead body handling over memo
9. Ex. PW4/A Seizure memo of DL of accused
10. Mark-X1 MLC
11. Mark-X2 DL verification report
12. Ex. PW5/A Seizure memo of TSR
13. Ex. PW-2 (colly.) Case property
14. Ex.PW5/B Seizure memo of RC, DL, Insurance,
Fitness certificate of accused
15. Ex.PW5/C Seizure memo of DL
16. Ex.PW-5/D Seizure memo of Insurance, Fitness
certificate of TSR
17. Ex.PW-6/A MLC of injured Paras
18. Ex.PW-6/B Tehrir
19. Ex.PW-6/C Notice u/s 133 MV Act
20. Ex.PW-6/D Mechanical inspection report of
offending vehicle
Statement of the Accused u/s 313 Cr.P.C
4. The accused u/s 313 Cr.P.C examined on 03.10.2024. The accused stated that
he did not give any disclosure statement Ex.PW-2/D. IO had got his signatures on
some blank papers on the next date of incident. His vehicle/TSR was parked on the
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 2025.04.05
FIR No.109/2015 3/14 State Vs. Anil Kumar 16:03:26
+0800
corner side of the road as his vehicle was not in running position, as he had gone to
collect some part of his vehicle from the market and when he returned back then
some public persons told him that police officials took his vehicle to PS Karawal
Nagar, thereafter, he went to PS Karawal Nagar where police officials took his, DL,
Aadhar Card, RC, Insurance, Permit, Fitness, Certificate and police officials told him
to reach at PS Karawal Nagar on the next day. When he reached PS Karawal Nagar
on next day i.e. 07.02.2015 then IO of the present case took his signatures on some
blank papers. No accident was occurred from his vehicle.
Evidence of the Defence
5. No defence evidence was led by the accused despite granting him an
opportunity.
Final Arguments
6. The court heard final arguments on behalf of the both the parties on
20.03.2025. Ld. Counsel for the accused submitted that the case against the accused
is false and frivolous and has prayed that accused be acquitted of the offence charged.
He pointed out various discrepancies in the version of the prosecution witness.
Learned APP for the state submitted that accused be convicted of the offences under
the above-mentioned sections as there is sufficient evidence on record to convict the
accused. This court has heard the submissions of Ld. APP for the State and Ld.
Counsel for the accused. The court has also diligently gone through the charge-sheet,
documents, evidence recorded and the entire material on record.
Brief reasons for the just decision of the case:
7. In the instant case, in order to bring home the guilt of the accused, the
prosecution had to prove the following ingredients of the offence punishable u/s
279/304A IPC beyond reasonable doubts: its apt to following sections:-
Section 279 IPC:
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 2025.04.05
16:03:33
+0800
FIR No.109/2015 4/14 State Vs. Anil Kumar
“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
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 304A IPC:
“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. Causing death
by negligence.”
8. Section 279 IPC makes rash driving or riding on a public way so as to
endanger human life or to be likely to cause hurt or injury to any other person an
offence. 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. The question whether conduct of the accused 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 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.
9. Relevantly, from a perusal of the aforesaid provisions it is observed that the
essential ingredients to constitute an offence punishable under Section 279 IPC inter
alia are that 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.”
10. Section 304A IPC punishes any rash or negligent act of a person which causes Digitally
signed by
ISRA ISRA
Date:
ZAIDI
FIR No.109/2015 5/14 ZAIDI
State Vs. Anil Kumar
2025.04.05
16:03:41
+0800
death of any person not amounting to culpable homicide. It has to be determined if
the act of the accused was rash or negligent. Concurrently, the Hon’ble High Court
of Delhi in Ras Bihari Singh vs. NCT of Delhi (2017 SCC Online Del 12290), while
explicating the ingredients of the offence(s) under section 279/304A IPC inter alia
observed as under;
“9. To constitute an offence under section 279/304A 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 304A 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,
3) That such act of the accused was rash or negligent and that it did not amount
to culpable homicide.
12. Needless to mention, in criminal law, the burden of proof on the prosecution is
that of beyond reasonable doubt. The presumption of innocence of the accused has to
be rebutted by the prosecution by adducing cogent evidence that points towards the
guilt of the accused. The evidence in the present case is to be weighed keeping in
view the above legal standards.
13. PW1 deposed in his examination in chief that on 06.02.2015 his son Paras
Nath met with an accident and he identified his body which was handed over to him
vide dead body handling over memo Ex.PW-1/B. He was not cross-examined despite
opportunity. PW3 deposed in his examination in chief that on 06.02.2015 he came
to know that he came to know that driver of PCR bearing no. DL-1RC-5244 Digitally
signed by
ISRA ISRA
Date:
ZAIDI
FIR No.109/2015 6/14 ZAIDI
State Vs. Anil Kumar
2025.04.05
16:03:49
+0800
committed an accident in which his nephew had died. He was not cross-
examined by the Ld. defence counsel despite opportunity. It appears that PW1 &
PW3 are not eye witnesses to the incident and merely identified the dead body of
his son.
At this stage its pertinent to mention section 60 of the Indian Evidence Act.
Section 60 of Indian Evidence Act states that oral evidence must be direct. –
Oral evidence must, in all cases whatever, be direct; that is to say-
“If it refers to a fact which could be seen, it must be the evidence of
a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of
a witness who says he heart it;
If it refers to a fact which could be perceived by any other sense or
in any other manner, it must be the evidence of the person who
holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise
commonly offered for sale, and the grounds on which such opinions
are held, may be proved by the production of such treatises if the
author is dead or cannot be found, or has become incapable of
giving evidence, or cannot be called as witness without an amount
of delay or expense which the court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or
condition of any material thing other than a document, the Court
may, if it thinks fit, require the production of such material thing
for its inspection.”
14. It is a cardinal principle of law of evidence that oral evidence must be direct
that is it should be given by the person who has actually perceived it. If a person
himself did not perceive but heard it from someone then such evidence is not
admissible under the Indian Evidence Act, 1872.
15. PW2 deposed in his examination in chief that on 06.02.2015 he was posted at
PS Karawal Nagar and he was on picket duty at Khajuri Pushta Road. He further
deposed that at about 5.00 pm he was present at the check post. He saw one boy
crossing the road. One TSR which was going from the side of Loni to Khajuri hit the
abovesaid boy in rash and negligent manner. He reached at the spot. The accused
managed to escape from the spot. Some public persons called at 100 number. PCR
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 16:04:26
2025.04.05+0800
FIR No.109/2015 7/14 State Vs. Anil Kumar
van came and took the injured to the hospital. IO arrived at the spot and prepared site
plan Ex.PW-2/A at his instance. He identified the accused and the case property. It
was argued by Ld. defence counsel during final arguments that if accused managed to
flee from the spot, how did he identify the accused in the court. It is himself admitted
by PW2 in his cross- examination by Ld. APP for the State that accused was arrested
at his instance by the IO vide arrest memo Ex.PW-2/B. Hence, the contention of the
ld. defence counsel that PW2 had not seen the accused stands negated.
16. Certain leading questions were put by Ld. APP for the State to the witness. In
his cross-examination he testified that he was alone at the time of checking duty at
the check post. The duty hours which the witness has stated are from 8.00 PM to 8.00
AM then how he was present on the check post at 5.00 PM remains unanswered by
the prosecution. In his examination in chief he deposed that he reached the spot
immediately. However, in his cross-examination he deposed that he reached on the
spot after ten minutes. He himself admitted that public persons had himself given the
information of the accident to the PCR, the question as to why PW2 himself did not
call the PCR when he himself saw the accident also, remains unanswered. He did not
remember how many public persons gathered at that time. PW2 himself admitted that
in his examination in chief that when he reached the spot, accused/driver managed to
escape from the spot. However, in his cross-examination he testified that accused had
already fled away from the spot when he reached the spot. He further testified in his
cross-examination that local police remained at spot for about 15-20 minutes and
prepared the documents. However, IO testified in his cross-examination that he
reached the spot at about 05.20 PM and left the spot at about 10.00 PM. It appears to
be an inter-se inconsistency between PW1 & PW5.
17. From the perusal of the testimonies of police witnesses it appears that they
have not deposed in line with each other. There appears to be discrepancies in the
version of prosecution witnesses. If the evidence of the sole witness is in conflict Digitally
signed by
ISRA ISRA
Date:
ZAIDI
FIR No.109/2015 8/14
ZAIDI 16:04:35
State Vs. Anil Kumar
2025.04.05
+0800
with the other witnesses, it may not be safe to make such a statement as a foundation
of the conviction of the accused. These are the few principles which the Court has
stated consistently and with certainty. Reference in this regard can be made to the
case of “Joseph v. State of Kerala (2003) 1 SCC”. As per the IO he remained at the
spot for five hours but as per PW2 he and the local police remained at the spot for
about 20 minutes. He further testified in his cross-examination that his statement and
statement of Ct. Sonu was recorded by the IO on the spot.
18. PW Sonu also testified in his cross-examination that site plan was prepared at
his instance. IO also testified that he prepared the site plan at about 8.00 PM in
presence of Ct. Ashok. However, perusal of the site plan reveals that it was prepared
on the next day of incident. It appears to be an inter se inconsistency. The evidentiary
value of the spot map/sketch map prepared by the investigating officer is relevant
under section 9 of the Indian Evidence Act, 1872 and since it is based on the
actual observation of the officer at the crime scene, it is treated as direct evidence
and is admissible u/s 60 of Indian Evidence Act, 1872. It is well settled that every
defect in the site plan cannot be fatal to the case of the prosecution though non-
mentioning of the essential features in the site plan can create a doubt on the
story of the prosecution. In the case of Shingara Singh v. State of Haryana
(2003)12 SCC 758 it was held that any defect in the site plan creates a doubt
regarding the place of occurrence and accused is entitled to get the benefit of
doubt.
19. The site plan annexed is inadequate. The site plan was not prepared
immediately but on the next day of the incident. For an appropriate and adequate
assessment it was necessary for the IO to prepare site plan on the same day. It
was incumbent upon IO to scale an accurate site plan. The exact point of impact
as well as tyre skid marks and the point at which offending vehicle had come to
rest after the collision should have been specified. No photography or Digitally
signed by
ISRA ISRA ZAIDI
Date:
ZAIDI 2025.04.05
FIR No.109/2015 9/14 State Vs. Anil Kumar 16:04:44
+0800
videography of the site was conducted by the IO just immediately after the
accident. The photography or videography of site and surrounding areas ought to
have been conducted so that the exact topography could have been discerned by
this Court. The investigation has been conducted in a routine and a stereotypical
manner.
20. PW2 deposed that rukka was sent in his presence by the IO through Ct.
Sonu. However, PW5 testified in his cross-examination that when he took rukka
for the registration of FIR from the IO, only he was present there. Again it is an
inter-se inconsistency in the version of prosecution witness.
21. PW4 deposed in his examination in chief that he received the PM report
from GTB hospital and got the documents of the TSR verified. He testified in the
cross-examination that he does not know the cause of accident.
22. PW5 deposed in his examination in chief that on 06.02.2015 he was on
emergency duty. He along with the IO went to the spot. TSR Bearing No. DL-
1RL-5244 was parked there. It is pertinent to note that the vehicle number stated
by PW4 & PW5 differs. Thereafter, IO prepared the tehrir and FIR was
registered. He further deposed that TSR was seized vide Ex.PW-5/A. He testified
in his cross-examination that there was no public person on the spot. However,
PW2 deposed that many public persons were there on the spot. It appears to be an
inter-se inconsistency. He did not remember when the case property was seized.
He did not remember whether the IO recorded statement of any witness. He did
not remember how long IO remained on the spot. He did not remember if IO
prepared site plan on the spot. He did not remember whether IO made any
departure entry. He did not remember whether any person had signed the arrest
memo and personal search memo.
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 2025.04.05
16:04:53
+0800FIR No.109/2015 10/14 State Vs. Anil Kumar
23. PW6 deposed on the same lines as PW1. He further deposed that he
investigated the case and filed the charge-sheet. He further deposed that he got
the mechanical inspection conducted. He seized the documents of the TSR. He
testified in his cross-examination that many public persons were gathered.
However, PW5 testified that no public persons were gathered. He further testified
that public persons were present when he prepared site plan but no notice was
given to them for not joining the investigation. He further testified that he
prepared the site plan at about 8.00 PM and he called Ct. Ashok at about 8.00
PM. However, site plan was prepared on the next day. He further testified that he
prepared arrest memo, personal search memo in presence of Ct. Sonu but Ct.
Sonu did not remember the same. The entire testimony of all the police witnesses
is silent as to in what rash and negligent manner the vehicle was being driven by
the accused. It is also silent about the fact that if the offending vehicle i.e. TSR
was being driven at a high speed by the accused. Accused has taken a defence
that his TSR was parked in the corner of the road and was not in running position
and he had gone to collect some parts. When he returned public persons told him
that police had taken his vehicle to the PS.
24. Also in the present case, it is not brought on record that the victim was not
in a condition to see the coming offending vehicle and that the accused who was
driving the offending vehicle was in a position to save the accident.
25. PW1 & PW5 does not appear to the court as reliable witnesses. It is no
longer res integra that sole testimony of complainant can be relied upon to
convict an accused provided the same is reliable and credit-worthy. In the case of
Lallu Manjhi and Anr. v. State of Jharkhand (2003) 2 SCC 401 the Hon’ble
Supreme Court of India had classified oral testimony of witnesses into three
categories wholly reliable, wholly unreliable and neither wholly reliable nor
wholly unreliable. The testimony of the police witnesses appears to be unreliable
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
FIR No.109/2015 11/14 ZAIDI
State Vs. Anil Kumar
2025.04.05
16:05:04
+0800
owing to material inter-se inconsistencies.
26. Perusal of the photographs Ex.P1 to P4 also reveals that the auto rickshaw
is without any roof and windows and doors. The front glass of the auto rickshaw
is also not there. It is not clear if the TSR was damaged so much in the accident.
It is also not clear if the TSR was damaged so much in the accident then why
accused did not sustain any injury and if he sustained injured how he
immediately left the spot. The question remained unanswered by the prosecution.
27. The incident happened when many other independent witnesses were
available as per the IO. The person who had taken the deceased to the Trauma
Centre was not even examined as a witness. HC Rajbir was also not examined as
a witness by the prosecution. As per the MLC, the name of the person who had
admitted deceased to Lok Nayak Hospital, was not examined as a witness. He
was a material witness in the present who had taken the deceased to the hospital.
It was not a tedious task for the prosecution to examine the above-mentioned
police witness. Not even one person who witnessed the incident was made a
witness.
28. In the case of Takhaji Hira Ji Vs. Thakur Kuber Singh, Chaman Singh &
Ors. 2001 6SCC 145, it was held that –
“Non-examination of independent witness by itself may not give
rise to adverse inference against the prosecution. If already
overwhelming evidence is available and examination of other
witnesses would be only repetition or duplication of the evidence
already adduced on record. Non-examination of such other
witnesses may not be material. In such case the court ought to
scrutinize the worth of evidence adduced. The court must assess
itself whether in the circumstances of the case, it was necessary to
examine such other witnesses and if so whether such witness was
available to be examined and yet was being withheld from the
court. If the answer be positive then only a question of drawing an Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 16:05:14
2025.04.05
FIR No.109/2015 12/14 State Vs. Anil Kumar +0800
adverse inference may arise. If witnesses already examined are
reliable and testimony coming from their mouth is impeachable.
The court can safely act upon it an influence by factum of non-
examination of other witnesses.”
29. There is no other independent public witness who could have supported the
uncorroborated testimony of the complainant. No other public
witness/independent witness has been examined by the prosecution to
corroborate the police witness. No reliance can be placed on uncorroborated
testimony of the police witness.
30. In case of Pradeep Narayan State of Maharashtra AIR 1995 SC 1930 it
was held that failure of police to join witness from locality during search creates
doubt about fairness of investigation, benefit of which has to go to the accused.
31. It is an adage that law works on the wheels of evidence. Every criminal trial is
a journey of discovering and unfolding the truth. But in the present case no sufficient
evidence is there on record to warrant the conviction of the accused person. In the
case of Prem Singh Yadav Vs. CBI 178 (2011) DLT 529 it was held that where it is
possible to have both views one in favor of prosecution and one in favor of accused,
the later one should prevail. The prosecution could not prove by the prosecution
beyond reasonable doubt. In a criminal case the burden of proof is on the prosecution
to prove the case against the accused beyond reasonable doubt. The burden never
shifts. An accused enjoys the presumption of innocence. There is no duty on an
accused person to purge himself of guilt. Where there is a lingering doubt, the
accused person is given the benefit of the doubt.
32. For the reasons outlined above, this court is of the considered opinion that the
prosecution has failed to discharge the heavy burden imposed on it by law of
satisfying this court beyond reasonable doubt of the guilt of the accused.
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 2025.04.05
16:05:24
+0800
FIR No.109/2015 13/14 State Vs. Anil Kumar
33. Consequently, accused Anil Kumar is acquitted in the present case for offence
u/s 279/304A IPC.
File be consigned to record room after due compliance.
Announced in the open Court today.
This judgment contains 14 pages and each page bears my signature.
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 16:05:39
2025.04.05+0800
(Isra Zaidi)
JMFC-04/NE/KKD/Delhi
05.04.2025FIR No.109/2015 14/14 State Vs. Anil Kumar
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