PW-3 (son of deceased) in his examination in chief deposed as under:"On 04.04.2004, I was coming from Ajmeri gate and going towards Minto Road to supply ice.At about 04:00 PM, we reached Kamla Market, bus stand and a truck TATA 709 bearing registration number HR 38C 2513 came from the back side.The truck driver was driving in rash and negligent manner by driving at high speed and hit ourrickshaw.My father was pulling the rickshaw.He fell down on the road and the front rightside wheel of the truck crushed the legs of my father.Police came at spot as PS was nearby and took my father to LNJP hospital.He was arrived at that time.Police prepared site plan at my instance.Photographers were called who took photographs of the spot."95/2018 Page 7 of 14During cross examination, PW-3 deposed as under:"It is correct that the rickshaw which was pulled by my father was not broken.Three ice bricks (sillies) were loaded in rickshaw at that time.I did not sustain injuries.I was sitting in rickshaw.The said rickshaw was not overturned.The offending truck was not stopped after hitting the rickshaw.It is correct that my statement is not recorded at the spot.The accused did not go to the hospital...."PW-13 Retired SI Lal Chand (Investigating Officer) during his examination in chief deposed as under:"On 04.04.2004, I was posted at PS Kamla Market as SI.On that day, alongwith Ct.Vinod reached at spot i.e. JLN Marg near Bus Stand Kamla Market, Delhi.One truck no. HP 38C 2513 and cycle thailey were found in accidental condition at the spot.I left Ct.Vinod at spot and I reached at JPN Hospital as it came to know that injured has already been taken to the hospital.I collected the MLC of injured Ram Varan, who was declared unfit of statement.One eyewitness of the accident CRL.LP.95/2018 Page 8 of 14 also met me at the hospital.I came at spot alongwith eyewitness Sunil Kumar and driver Ram Chand.I handed over the rukka to Ct.Vinod for registration of FIR.I inspected the site at the instane of complainant Sunil Kumar and prepared site plan Ex. PW13/B, bearing my signature at point A. I seized the truck and cycle thailey vide seizure memo already Ex. PW 2/B and C, bearing my signature at point C respectively.I got clicked the photographs of spot vide photographs already collectively Ex. P12....".95/2018 Page 8 of 14During cross examination the witness deposed as under:"The accused Ram chand was the driver on the offending truck at the time of incident.I do not remember whether any damage was caused to cycle thailey by the offending truck due to accident or not.As per my investigation, the offending truck had hit the cycle thailey and injured from behind......"18. PW-2 (Ct. Vinod Kumar) during his examination in chief deposed as under-"On 04.04.2004, I was posted at PS Kamla Market as constable.SI Lal Chand received DD no. 17-A regarding an accident at JLN Marg bus stand, Kamla Market.I alongwith SI Lal Chand went to the spot, where crowd had gathered.Some person from the crowd told me that an accident has occurred and the injured has been taken to JPN hospital.IO left me at spot and went to the hospital.IO came back at the spot and prepared tehrir and handed over to me for registration of CRL.LP.95/2018 Page 9 of 14 case.I went to PS Kamla market and got the case registered.HON'BLE MS.JUSTICE SANGITA DHINGRA SEHGAL"The case of prosecution against the accused Ran Chand is that on 04.04.2004 at about 4pm at JLN Marg, near Bus Stand, Kamla Market, Delhi, CRL.LP.95/2018 Page 1 of 14 within the jurisdiction of PS Kamla Market, he was found driving Ashok Lee Land Truck 709 bearing registration no HR-38C-2513 (hereinafter as 'offending vehicle') in a rash or negligent manner and while so driving dashed against a rickshaw thela being driven by deceased Ram Baran Yadav and caused his death."95/2018 Page 1 of 14After completing the investigation, a charge sheet was filed.The accused was charged with offence under Sections 279/304A of IPC to which he pleaded not guilty and claimed to be tried.The accused chose not to lead any evidence in his defence.Mr. Rajat Katyal, APP for Statecontended that the impugned judgment dated 02.11.2017 was based on conjectures and surmises and the same deserves to be set aside.Learned counsel for the State further contended that Ld. Trial Court failed to appreciate the statement of the eye witness PW-3/Sunil Kumar in correct perspective.95/2018 Page 2 of 14I have heard the learned counsel for the State and perused the material on record.I handed over the original tehrir and copy of FIR to IO.IO called the photographer who took photographs of the spot...."95/2018 Page 9 of 14During cross examination, PW-2 (Ct. Vinod Kumar) deposed as under:"...it is correct that the rickshaw and truck were found in accidental condition when we reached at the spot.I do not remember the time when the photographer arrived at the spot.Public persons were present when we reached at the spot.Prior to proceed to the hospital, IO did not record the statement of any public persons at the spot.When the photographs were got clicked, complainant Sunil Kumar was not present at the spot.Rukka was prepared at the spot.At that time, Sunil Kumar was not present at the spot.IO had obtained the signatures of Sunil Kumar on the rukka/complaint in the hospital.IO handed over me the rukka at about 5:40 PM.It is correct that when IO handed over me the rukka complainant was not present.It is correct complainant did not come to the spot at my presence...."From the perusal of the above testimonies, the presence of PW-3 (Son of the victim and eyewitness) at the spot, at the time of commission of crime, appears to be doubtful.PW-3 (Son of the victim and eyewitness) deposed in his examination in chief that 'At about 04:00 PM, we reached Kamla Market, bus stand and a truck TATA 709 bearing registration number HR 38C 2513 came from CRL.LP.95/2018 Page 10 of 14 the back side.The truck driver was driving in rash and negligent manner by driving at high speed and hit our rickshaw' during cross examination, PW-3 deposed that 'Three ice bricks (sillies) were loaded in rickshaw at that time.I did not sustain injuries.I was sitting in rickshaw.The said rickshaw was not overturned.The offending truck was not stopped after hitting the rickshaw'.The case of the prosecution is that PW-3 was sitting on the thela with his deceased father and at the time of accident he saved himself by jumping from the rickshaw appears to be improbable, as it has emerged on record that there was no arrangement to seat for two persons in the Rickshaw coupled with the statement of other prosecution witnesses that no damage was caused to the thela pulled by the deceased.95/2018 Page 10 of 14Further, PW-3 (Son of the victim and eyewitness) deposed in his examination in chief that'Photographers were called who took photographs of the spot' to the contrary, in his cross examination, PW-3 deposed that 'I do not remember whether the photographs of the spot were got clicked in my presence or not.'Similarly, PW-2 (Ct. Vinod Kumar) with regard to photographs, in his cross examination deposed that, 'When the photographs were got clicked, complainant Sunil Kumar was not present.'Further, PW-3 (son of the deceased) in his cross examination deposed that'The accused did not went to the hospital.' to the contrary PW-13 (Investigating Officer) in his examination in chief deposed that'One eye-witness of the accident namely Sunil Kumar and driver of truck also met me at hospital.' CRL.LP.95/2018 Page 11 of 1495/2018 Page 11 of 14Further, PW-13 (Investigating Officer) in his cross examination mentioned that, 'I came at spot along with eyewitness Sunil Kumar and driver Ram Chand.I handed over rukka to Ct.Vinod for registration of FIR.'To the contrary, PW-2 (Ct. Vinod Kumar) in his cross examination had stated that, 'Rukka was prepared at spot.At that time, Sunil Kumar was not present.'All these witnesses have a different and inconsistent stand in their testimonies which creates a doubt about the presence of PW-3 (Son of the victim and eyewitness) at the spot.Mukta Rani.She deposed as under:"...on that day, I conducted the post-mortem on dead body of deceased Ram Baran Yadav, s/o Sh.All the injuries were ante-mortem, fresh and could be possible in a road traffic accident..."Thus, in the opinion of the doctor the injuries on the person of the deceased could not be possible in a road accident.The prosecution also failed to examine public persons who were present at the time of accident.The rukka and the arrest memo also cannot be relied CRL.LP.95/2018 Page 12 of 14In the present case, on a cumulative reading and appreciation of the entire evidence on record, I am of the considered view that the evidence on record have been held to be unworthy of acceptance because the same is found to be replete with infirmities.There are considerable inconsistencies and discrepancies in the statement of the witnesses, which consequently makes the version of the prosecution fabricated and unreliable.The prosecution has failed to disclose the true genesis of the crime and establish the charges against the accused punishable under Section279/304A IPC.It is settled law that while deciding a leave to appeal petition filed by the State, in case two views are possible, the High Court must not grant leave, if the trial court has taken one of the plausible views, in contrast there to in an appeal filed against acquittal.The learned trial court CRL.LP.95/2018 Page 13 of 14 has taken a holistic view in the matter and carefully analyzed the evidence of all the witnesses.95/2018 Page 13 of 14SANGITA DHINGRA SEHGAL, J APRIL 10, 2019//afa CRL.LP.

Sections cited: Section 304A in The Indian Penal Code, Section 279 in The Indian Penal Code, Section 300 in The Indian Penal Code, Section 299 in The Indian Penal Code