Delhi District Court
Gopal Dutt Faloriya vs State on 21 April, 2026
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-019220-2024
Criminal Appeal No.: 499/2024
GOPAL DUTT FALORIYA,
S/o. Shri. Khem Chand,
R/o. A-66, Karam Pura,
Delhi . ... APPELLANT
VERSUS
STATE (NCT OF DELHI) ... RESPONDENT
Date of filing : 07.12.2024
Date of institution : 09.12.2024
Date when judgment was reserved : 17.03.2026
Date when judgment is pronounced : 21.04.2026
JUDGMENT
1. The present appeal has been filed under Section 374
of the Code of Criminal Procedure, 1973 (hereinafter, referred to
as ‘Cr.P.C.’)/pari materia with Section 415 of Bharatiya Nagarik
Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’)
against the judgment dated 27.08.2024 (hereinafter referred to as
‘impugned judgment’), passed by the learned Judicial Magistrate
First Class-02/Ld. JMFC-02, Central, Tis Hazari Courts, Delhi
(hereinafter referred to as the ‘Ld. Trial Court/Ld. JMFC’) in
case bearing, ‘State v. Gopal Dutt Faloriya, Cr. Case No.
3425/2020’, arising out of FIR No. 294/2018, P.S. Timarpur,
convicting the appellant for the offences punishable under
Sections 279/337/304A of the Indian Penal Code, 1860
(hereinafter referred to as ‘IPC‘), and the consequent order of
sentence dated 19.11.2024 (hereinafter referred to as ‘impugned
order’), passed by the Ld. Trial Court, awarding the appellant;
C.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 1 of 52
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signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.04.21
16:17:50
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simple imprisonment for a period of 03 (three) months along with
fine of Rs. 5,000/- (Rupees Five Thousand only), in default of
payment of fine, to undergo simple imprisonment for a period of
06 (six) months for the offence under Section 304A IPC; simple
imprisonment for a period of 03 (three) months along with fine of
Rs. 1,000/- (Rupees One Thousand only), in default of payment
of fine, to undergo simple imprisonment for a period of 01 (one)
month for the offence under Section 279 IPC; and simple
imprisonment for a period of 03 (three) months along with fine of
Rs. 500/- (Rupees Five Hundred only), in default of payment of
fine, to undergo simple imprisonment for a period of 01 (one)
month for the offence under Section 337 IPC, sentences to run
concurrently. Further, the appellant was directed to deposit a sum
of Rs. 3,989/- (Rupees Three Thousand Nine Hundred and
Eighty Nine only) towards expenses incurred by prosecution,
besides it was directed that the appellant would be entitled to the
benefit under Section 428 Cr.P.C. (hereinafter impugned
judgment and impugned order are collectively referred to as the
‘impugned judgment and order’).
2. Succinctly, the case of the prosecution is that on
28.12.2018, on receipt of PCR Call vide DD No. 24A, regarding a
fatal accident, the concerned police officials, reached at the spot,
i.e., at outer ring road towards ISBT Gopalpur, near Wazirabad
flyover (hereinafter referred to as the ‘spot’). Markedly, at the
spot, one truck bearing registration no. DL-1GC-7459 of
Hindustan Petroleum Company (hereinafter referred to as the
‘offending vehicle’) and an accidental motorcycle of Honda CD
Delux make, black and blue in colour, bearing registration no.
DL-5SAD-1317 (hereinafter referred to as the ‘accidental
C.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 2 of 52
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.04.21
16:17:54 +0530
motorcyle’) were found present (हिन्दूस्तान पेट्रोलियम की गाडी Truck No.
DL1GC 7459 सड़क के वीचो वीच खड़ी थी जिस गाडी के पीछे m/cycle NO DL 5S
AD 1317 H/Honda C.D Deluxe बारंग काला व नीला खडी थी).
Correspondingly, it was determined that blood was lying on road,
next to the said motorcycle, while it was noted that the victims had
already been shifted to Hospital. At the same time, it was found
that several persons had gathered at the spot, whereupon, the
concerned police official(s), shifted the accidental motorcycle on
one side of the road, after photographs of the accidental vehicle
was taken by the concerned police official. Correspondingly, the
concerned police official(s) established the identity of the driver
of the offending vehicle as Gopal Dutt Faloriya, S/o. Shri. Khem
Chand (hereinafter referred to as the ‘appellant’), whereupon the
offending vehicle was also shifted to one corner of the road.
Thereafter, the concerned police official/ASI proceeded for
Sushruta Trauma Centre Hospital, where under MLC No.
15072/18, one unknown person was found admitted with an
alleged history of being found on road side, “…RTA (Hit & run )
Pt brought dead…”. Congruently, under MLC No. 15073/18,
another unknown person, aged 3 years was found under treatment,
who was stated to be shifted to Hospital by some public persons.
Markedly, under said facts and circumstances, the instant FIR was
registered, and investigation ensued.
2.1. Remarkably, during the course of ensuing
investigation, the concerned police official(s), contacted the PCR
caller, namely, Nasir Ali S/o. Ali Sher ( hereinafter referred to as
the ‘eyewitness’), who proclaimed himself to be the eyewitness of
incident (दौराने तफ्तीश मन ASI ने PCR call करने वाले शख्स से बजरिये फोन बात
की जिसने अपना नाम व पता नसीर अली पुत्र अली शेर पता म.न. 124/A-1, गली न. 9, गाँवC.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 3 of 52
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signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.04.21
16:18:00
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वजीराबाद, दिल्ली उम्र 32 वर्ष वतलाया और अपने आप को मौका का चश्मदीद गवाह
बतलाया।). Ergo, the eyewitness was called at the spot and the site
plan was inter alia prepared by the Investigating Officer/IO. In the
meanwhile, identity of the deceased was determined to be
Shashank Kujjur (hereinafter referred to as the ‘deceased’) and the
identity of the victim/injured was determined to be, ‘E 1’, S/o. of
Shashank Kujjur (hereinafter referred to as the ‘victim/injured’).
Ergo, the relatives of the deceased were contacted and their
statements were recorded (इसके बाद मन ASI ने मृतक के भाई व जीजा को
शामिल तफ्तीश कर दरियाफ्त अमल में लाई व उनका ब्यान अलग से दर्ज किया
गया।). Congruently, the arrest, search and disclosure proceedings
of the deceased were conducted (जो बाद दरियाफ्त बाद गुजरने हालात
गिरफ्तारी मुलजिम गोपाल दत्ता कलेरिया को मुकदमा हजा में हस्ब जफ्ता गिरफ्तार
किया गया व गिरफ्तारी से सम्बंधित तमाम कागजात पुर किये गए।).
Subsequently, postmortem examination of the deceased was got
conducted vide PM No. 2079/18 and the body of the deceased was
handed over to his relatives (दिनांक 29.12.18 को मृतक शशांक कु जूर का
vide PM न. 2079/18 से पोस्ट मार्टम कराया तथा बाद PM मृतक की डेड बॉडी को
… उसके वरिशान के हवाले किया गया।). Congruently, mechanical
inspection of the vehicles in question was got conducted and the
opinion on nature of injuries of the victim was obtained, where the
nature of victim’s injuries was opined to be ‘simple’. Thereafter,
on recording of statements of various witnesses and on conclusion
of investigation in the instant case, the chargesheet came to be filed
before the Ld. Trial Court.
2.2. Markedly, upon such chargesheet being filed, Ld.
Trial Court vide order dated 28.04.2022, took cognizance of
offences under Sections 279/337/304A IPC. Concurrently, upon1
Master ‘E’/PW-7, specified at Sr. No. 7 of the list of prosecution witnesses and identity deliberately withheld as
being a minor at the relevant point in time.
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signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.04.21
16:18:05
+0530
compliance of the provisions under Section 207 Cr.P.C. on
22.07.2022, and on arguments on the aspect of notice having been
addressed by/on behalf of the State and the appellant, Ld. Trial
Court vide order dated 03.11.2022, served notice on the appellant,
in terms of the provisions under Section 251 Cr.P.C. for the
offences under Sections 279/337/304A IPC, inter alia under the
following observations;
“…Submissions on the point of service of notice
u/s. 251 Cr.P.C. heard.
There is sufficient material on record to show that
prima facie case u/s. 279/337/304A IPC is made out
against the accused and accordingly, notice is served
upon accused for offence u/s. 279/337/304A IPC to
which he pleaded not guilty and claimed trial …”
(Emphasis supplied)
2.3. Apposite here to further reproduce the relevant
extracts of notice dated 03.11.2022, served on the appellant, as
under;
“…I, ***, MM-02, Central do hereby charge you
namely Gopal Dut Fuloria S/o Sh. Khem Chand
Fuloria, R/o. A-block, Karampura, West Delhi as
under:-
It is alleged against you that on 28.12.2018 at
about 11:35 am, at outer ring road towards ISBT
Gopal Pur, near Wazirabad flyover within the
jurisdiction of PS Timarpur, you were found driving
Truck(tanker) bearing registration no. DL IGC-7459
in a rash or negligent manner and while driving the
above said vehicle in the aforesaid manner, you drove
your vehicle over the deceased, who was riding
along with 2 children on his motorcycle bearing
registration no. DL5SAD1317 causing his death (not
amounting to culpable homicide) and caused simple
injury to the one of the two children. Therefore, you
have committed offence(s) punishable under Section
279/337/304A IPC within the cognizance of this
court.
Show cause why you should not be punished for
the above-said offences by this Court…”
(Emphasis supplied)
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signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.04.21
16:18:10
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2.4. Significantly, during the course of trial, prosecution
examined 12 (twelve) witnesses/prosecution witnesses, who
deposed in their respective testimonies, regarding the following;
Prosecution Particulars of Description
witness no. the witness
PW-1 Avinash Singh Deposed inter alia regarding him
removing the victim from the spot to
the Hospital on 28.12.2018, with the
assistance of other public persons.
PW-2 HC Ashwani MHC(M) at relevant point in time.
Testified inter alia regarding the
deposit of case property in
malkhana by ASI Om Prakash.
PW-3 Asrita Tiga Wife of the deceased, who inter
alia deposed of being informed of
accident/incident on 28.12.2018 as
well as of the factum of demise of
her husband/deceased and injury on
her son Ethan, pursuant to such
accident/incident.
PW-4 Kailash Chand Deposed inter alia regarding him
reaching at PS. Timarpur on
04.01.2019 by the IO and of
him/PW-4, taking photographs of
truck bearing no. DL-1GC-7459
with its owner from different angles
on the said date.
PW-5 Om Singh Deposed inter alia of him working as
a helper in truck bearing no.
DL-1GC-7459 on 28.12.2012 as
well as of the appellant’s driving the
said truck on the said date. Further,
as per PW-5, on the said date, while
they were proceeding for Shastri
Park, Delhi and the truck was filled
with petrol, at around 11:30 a.m.,
noise of hitting some vehicle with
the truck was heard. It was further
deposed by PW-5 that the appellant,
consequently, stopped the truck and
noted that a motorcycle was lying on
the road along with the rider and a
child and that both the said rider and
child were injured.
PW-6 Master ‘A’ Son of the victim, who inter alia
(specified at Sr. deposed that in the year 2018,
No. 6 of list of incident had taken place and, on that
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signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.04.21
16:18:15
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prosecution day, PW-6 along with his brother
witnesses) and father were riding on a
motorcycle, when a truck came from
behind and hit the motorcycle. PW-6
further deposed that they fell from
their motorcycle and his/PW-6’s
brother as well as father sustained
injuries, whereupon they were
shifted to Hospital. Further, as per
PW-6, his mother came to the police
station and thereafter, he went to his
mother to Hospital, where it was
determined that his father had
passed away.
PW-7 Master ‘E’ Victim in the instant case. Deposed
(specified at Sr. inter alia regarding him proceeding
No. 7 of the list with his father and brother for
of prosecution hanging out in their motorcycle.
witnesses) PW-7 further testified that one
tempo hit their motorcycle from
behind, whereupon their motorcycle
fell on the ground. Further, as per
PW-7, he and his father suffered
injuries, while PW-7’s brother was
not injured.
PW-8 Satish Kumar Deposed inter alia regarding the
Sapra appellant being an employee of his
company, i.e., HPCL and on the date
of incident of him/appellant, driving
the said vehicle. Correspondingly,
PW-8 asserted that on 28.12.2018,
the appellant caused the accident at
around 11:35 a.m., near Wazirabad
flyover and he/PW-8 issued a letter
regarding the same to the SHO of PS
Timarpur.
PW-9 SI (Retd.) Ram Deposed inter alia regarding him
Mehra working as Incharge of PCR van
Sugar-11 on 28.12.2018 and at
around 11:35 a.m., of him/PW-9’s
responding to PCR Call regarding
an accident near Wazirabad as well
as responding to the same. PW-9
further testified that the driver of the
truck and its helper were found at
the spot, whilst the injured persons
were shifted to Hospital.
Correspondingly, as per PW-9, he
handed over the driver to the IO and
Ct. Sanjeev, when they reached at
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ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.04.21
16:18:19
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the said spot.
PW-10 Nasir Ali Eyewitness of the incident in
question. Deposed inter alia of the
offence in question and identified
the appellant as the perpetrator of
the said offence.
PW-11 HC Sanjeev Deposed inter alia regarding him
Chahar joining the investigation in the
present case along with IO/SI Om
Prakash and of getting the FIR
registered at the instance of the IO.
PW-12 IO/SI (Retd.) Investigating Officer in the present
Om Prakash case. Deposed inter alia of the
investigation conducted by him as
well as of filing of the present
chargesheet before the Ld. Trial
Court.
2.5. Pertinent to note here that the aforenoted
witnesses/prosecution witnesses further exhibited/proved the
following documents and objects, during the course of their
respective evidence;
Exhibit Description of Exhibit Exhibited
no./Material by/Proved
objects by/Attested by
Ex. P1 (Colly.) Photographs of offending vehicle PW-1/Avinash
(1-10) bearing registration no. Singh
DL-1GC-7459 and accidental
motorcycle bearing no.
DL-5SAD-1317.
Ex. PW2/A Photocopy of entry no. 3116 in PW-2/HC
register no. 19 regarding deposit Ashwani
of motorcycle bearing no.
DL-5SAP-1317 and truck
bearing no. DL-1GC-7459 in
malkhana.
Ex. P2(Colly.) CD and photographs of truck PW-4/Kailash
bearing no. DL-1GC-7459 with Chand
its owner.
Ex. PW8/A Letter issued by PW-8 to SHO PW-8/Satish
regarding the appellant's driving Kumar Sapra
the offending vehicle on the date
of incident.
Ex. PW10/A Site plan of the incident spot. PW-10/Nasir Ali
Ex. PW10/B Seizure memo of the offending PW-10/Nasir Ali
vehicle.
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2026.04.21
16:18:23
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Ex. PW10/C Seizure memo of the accidental PW-10/Nasir Ali
motorcycle.
Ex. PW10/D Seizure memo of the driving PW-10/Nasir Ali
license of the appellant.
Ex. PW10/E Seizure memo of the documents PW-10/Nasir Ali
pertaining to the offending truck.
Ex. PW10/F Arrest memo of the appellant. PW-10/Nasir Ali
Ex. PW10/G Personal search memo of the PW-10/Nasir Ali
appellant.
Ex. PW10/G1 Disclosure statement of the PW-10/Nasir Ali
appellant.
Ex. PW12/A Tehrir PW-12/SI (Retd.)
Om Prakash
Ex. PW12/B Bail bonds furnished by the PW-12/SI (Retd.)
appellant. Om Prakash
Ex. PW12/C Request application filed at PW-12/SI (Retd.)
Mortuary, PS. Subzi Mandi. Om Prakash
Ex. PW12/D Postmortem related documents. PW-12/SI (Retd.)
(Colly.) Om Prakash
Ex. PW12/E Dead body handing over memo. PW-12/SI (Retd.)
Om Prakash
2.6. Markedly, during the course of proceedings before
the Ld. Trial Court, the appellant admitted the following
documents, in terms of the provisions under Section 294 Cr.P.C.
on 03.11.2022;
Exhibit no. Description of Exhibit
Ex. AD1 FIR No. 294/2018, PS. Timarpur (present FIR) under
Sections 279/337/304A IPC.
Ex. AD2 Endorsement on rukka.
Ex. AD3 Certificate under Section 65B of the Indian Evidence
Act, 1872
Ex. AD4 DD No. 24A, dated 28.12.2018.
Ex. AD5 DD No. 25A, dated 28.12.2018.
Ex. AD6 DD No. 26A, dated 28.12.2018.
Ex. AD7 Mechanical Inspection Report in respect of vehicle
bearing no. DL-1GC-7459.
Ex. AD8 Mechanical Inspection Report in respect of vehicle
bearing no. DL-5SAD-1317.
Ex. AD9 MLC No. 15072/18 of the deceased.
Ex. AD10, Ex. Dead body identification statements.
AD11 and Ex.
AD12
Ex. AD13 Postmortem Report of the deceased.
Ex. AD14 MLC No. 15073/18 of the victim, 'E'.
Ex. AD15 X-ray Report CR No. 15073/18.
C.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 9 of 52
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.04.21
16:18:28 +0530
Ex. AD16 Death Certificate.
Ex. AD17 Casualty Form No. 7924/18.
2.7. Concurrently, in view of aforenoted admission, Ld.
Trial Court vide an order of even date/order dated 03.11.2022,
dropped/dispensed with the examination of corresponding
prosecution witnesses, i.e., Vinay Koojer, Sushant Lakra, Gurdeep
Singh (Mechanical Expert), Dr. Ajay Dalal, Dr. Ritu, Dr. Ankur,
Dr. Kamal Dabas, Dr. Arun Kumar and DO/HC Anil Kumar, in
the instant case. Subsequently, on conclusion of prosecution
evidence, statement of the appellant, under Sections 313/281
Cr.P.C. was recorded on 23.07.2024. Thereafter, on conclusion of
arguments on behalf of the appellant as well as by State, as
aforementioned, the Ld. Trial Court vide impugned judgment and
order, holding the appellant guilty of the offences punishable
under Sections 279/337/304A IPC, sentenced him in the manner,
as noted hereinabove.
3. Ld. Counsel for the appellant contended that the
impugned judgment and order were passed by the Ld. Trial Court
on mere conjunctures, surmises and in contravention of the settled
principles of law, deserving their setting aside at the outset. In this
regard, Ld. Counsel fervently argued that the impugned judgment
and order were passed by the Ld. Trial Court in utter violation of
the principles of natural justice, equity and good conscience.
Further, as per the Ld. Counsel, the findings arrived at by the Ld.
Counsel are not supported by the evidence on record. Ld. Counsel
further submitted that the Ld. Trial Court failed to appreciate that
in the instant case, there are numerous gaping holes in the case put
forth by the prosecution and that the prosecution’s story does not
inspire any confidence, nor appeals to the senses of a prudent man.
C.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 10 of 52 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.04.21 16:18:35 +0530
Correspondingly, Ld. Counsel for the appellant vehemently
asserted that while reaching the finding of appellant’s guilt, Ld.
Trial Court failed to appreciate the mechanical inspection report
of the motorcycle in question in correct perspective. In this regard,
Ld. Counsel argued that even the material place on record does not
support the prosecution’s story, in as much as despite the avowal
of the deceased’s child that the tanker was hit from backside of the
motorcycle, no injury was noted at the said motorcycle’s rear end,
belying the case put forth against the accused. Further, as per the
Ld. Counsel, in the instant case, maxim ‘res ipsa liquitor’ is totally
applicable, demonstrating that the deceased passed away due to
his own fault/omission, without there being any
omission/culpability on the part of the appellant/accused. In fact,
as per the Ld. Counsel, the Ld. Trial Court wrongly convicted the
appellant, while failing to appreciate that correct and proper facts
of the case, and passing the impugned judgment and order, in
haste. It was further reiterated by the Ld. Counsel that from a
reading/analysis of the mechanical inspection reports of
motorcycle and tanker it is crystal clear that tanker driver was not
at fault and the motorcycle driver, hit the tanker from behind and
sustained fatal injury.
3.1. Ld. Counsel for the appellant further submitted that
the impugned judgment and order are bad in law, making them
liable to be outrightly set aside. Further, as per the Ld. Counsel, a
perusal of the testimonies of the various witnesses/PWs, who were
examined before the Ld. Trial Court would clearly demonstrate
that there are glaring, and material contradictions and the Ld. Trial
Court has committed grave error by not considering the same,
leading to gross miscarriage of justice to the appellant.
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signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.04.21
16:18:40
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Congruently, as per the Ld. Counsel, the Ld. Trial Court failed to
appreciate that the IO failed to produce a single eyewitness, in
support of the case put forth against the appellant herein. It was
further submitted that from a perusal of the crime scene and
photographs, brought on record, it is quite apparent that there was
no fault/omission on the part of the appellant. Further, as per the
Ld. Counsel, even PW-10/Nasir Ali asserted during the course of
his cross examination that the accidental motorcycle was behind
the offending truck, however, he/PW-10 could not tell the speed
of the said truck. Correspondingly, PW-10 avowed that the truck
was being driven in slow speed and that he had not seen the driver
of the offending vehicle at the time of alleged commission of
incident. In fact, PW-10 went ahead to proclaim that the said truck
was being driven in its lane. However, as per the Ld. Counsel, the
said factors were not properly appreciated by the Ld. Trial Court,
while erroneously reaching a finding of appellant’s guilt. Even
otherwise, it was argued by the Ld. Counsel that while passing the
impugned judgment and order, the Ld. Trial Court further failed to
consider that oil tankers, in majority of cases, move in the center
of the road, because if it overturns, same may cause severe
causality in fire. Ergo, it was submitted that there was no occasion
of the driver of the tanker to drive his vehicle in a rash and/or
negligent manner in the instant case, especially when he was
driving a tanker, filled with around 23,000 (twenty three thousand)
litres of petrol and as per the government set driving
speed/protocol.
3.2. Ld. Counsel for the appellant further contended that
the Ld. Trial Court further failed to appreciate facts of the case
were meaningly/ominously twisted after the accident to claim
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ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.04.21
16:18:44
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compensation from the Motor Accident Claim Tribunal. In fact, as
per the Ld. Counsel, the family of the deceased and the concerned
police officials acted hand in glove to falsely rope in the appellant
in the present case, solely to exploit the provisions under law, to
claim recompense from the appellant. In this regard, it was further
submitted that the IO deliberately opted not to conduct due and
fair investigation, in as much as no endeavor was made by the IO
to determine/seize the driving license of the deceased, which fact,
if properly investigated, would have shown that the deceased was
neither in possession of a proper driving license, nor competent to
drive the motorcycle in question. Further, as per the Ld. Counsel,
the conduct of the appellant is self-explanatory so as to belie the
allegations levelled against him in so far as the appellant made
endeavor to flee from the spot till the police officials reached at
the spot, accentuating the innocence in the appellant’s conduct.
Further, as per the Ld. Counsel, while passing the impugned
judgment, Ld. Trial Court did not consider the deposition of
PW-1/Avinash Singh, who affirmed that he had not seen the
incident in question. However, despite the same, as per the Ld.
Counsel, an erroneous finding of appellant’s guilt was reached by
the Ld. Trial Court.
3.3. Ld. Counsel for the appellant further submitted that
the Ld. Trial Court further failed to consider that the IO clearly
asserted that when he reached at the spot, no eyewitness was
present there, besides, the tanker was seen in elevated position. Ld.
Counsel further submitted that whilst being in a state of elevation
with substantial petrol, it would not have been possible for the
appellant to drive the said tanker in high speed and/or in rash and
negligent manner. It was further submitted that none of the
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prosecution witnesses, even otherwise, asserted under their
respective depositions that the truck/tanker was being driven in a
rash and negligent manner, essential to attribute culpability against
the appellant. Even otherwise, the Ld. Trial Court failed to
consider that PW-6 and PW-7 were both minors at the relevant
point in time and related to the deceased. Congruently, Ld.
Counsel submitted that not only did the Ld. Trial Court failed to
consider the truth of circumstances and passed its
judgment/decision in haste, rather, did not properly
appreciate/examine the facts of the present case, wrongly holding
the appellant guilty of the aforementioned offences. Further, as per
the Ld. Counsel even due and proper consideration/mitigating
factors were not considered by the Ld. Trial Court while passing
the impugned order/order of sentence in the instant case. As per
the Ld. Counsel, the Ld. Trial Court did not consider that the
appellant was solely responsible for his family’s sustenance and
take care. Even otherwise, it was submitted that the appellant is
around 63 (sixty three) years of age and has suffered persistent
rigors of litigation. Ergo, it was submitted that in case, relaxation
from sentence is not accorded to the appellant, grave
injustice/depravity would befall on the appellant’s family
members Consequently, the Ld. Counsel inter alia prayed that the
present appeal be allowed, and the impugned judgment and order
be set aside. In support of the said contentions, reliance was placed
upon the decisions in; State of Karnataka v. Satish, 1998 SCC
(Crl) 1508; Mohd. Aynuddin v. State of A.P., (2000) 7 SCC 72;
Balwan Singh v. State, 2012 (1) CC Cases (HC) 562; Abdul
Subhan v. State (NCT of Delhi), 133 (2006) DLT 562; Mohan
Shyam v. State (NCT of Delhi), 2013 (1) CC Cases (HC) 66;
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Satish Kumar v. State of Punjab, 2014 (3) CC Cases (HC) 424;
and Rakesh R. Gowda v. State of Karnataka, 2023 Crl. LJ 1911.
4. Per contra, Ld. Addl. PP for the State submitted that
the impugned judgment and order were passed by the Ld. Trial
Court after due appreciation of the facts and circumstances of the
case as well as in consonance with the settled judicial precedents.
Ld. Addl. PP for the State further submitted that the testimonies of
the prosecution witnesses have not only been consistent, rather,
unblemished as well as coherently point towards the only
inference of appellant’s guilt. As per the Ld. Addl. PP for the State,
the facts and circumstances put forth as well as the evidence placed
on record, unerringly point out towards the guilt of the appellant
and that no fault can be attributed to the finding of the Ld. Trial
Court, which is based on proper appreciation of facts as well as
law. Accordingly, Ld. Addl. PP for the State submitted that the
present appeal deserves to be dismissed at the outset, as grossly
malicious and devoid of merits. Even otherwise, as per the Ld.
Addl. PP for the State, sufficient leverage has been accorded to the
appellant by the Ld. Trial Court, while passing the order of
sentence, adopting a lenient view. Accordingly, it was prayed that
no relaxation may be granted to the appellant considering the
gravity of allegations and the victims in the instant case.
5. The arguments of Ld. Counsel for the appellant as
well as that of Ld. Addl. PP for the State have been heard and the
record(s), including the Trial Court Record, written
submissions/written arguments filed on behalf of the appellant and
the aforenoted case laws, thoroughly perused.
6. Before proceeding with the evaluation of the rival
contentions raised, this Court deems it apposite to enunciate the
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scope of jurisdiction of this Court in an appeal. In this regard, this
Court it is pertinent to outrightly make a reference to the decision
of the Hon’ble Supreme Court in Padam Singh v. State of U.P.,
(2000) 1 SCC 621, wherein the Hon’ble Court, while delving into
the ‘scope and ambit’ of appellate court’s jurisdiction inter alia
noted as under;
“2. … It is the duty of an appellate court to look
into the evidence adduced in the case and arrive at an
independent conclusion as to whether the said
evidence can be relied upon or not and even if it can
be relied upon, then whether the prosecution can be
said to have been proved beyond reasonable doubt
on the said evidence. The credibility of a witness has
to be adjudged by the appellate court in drawing
inference from proved and admitted facts. It must be
remembered that the appellate court, like the trial
court, has to be satisfied affirmatively that the
prosecution case is substantially true and the guilt of
the accused has been proved beyond all reasonable
doubt as the presumption of innocence with which the
accused starts, continues right through until he is held
guilty by the final court of appeal and that
presumption is neither strengthened by an acquittal
nor weakened by a conviction in the trial court…”
(Emphasis supplied)
7. Similarly, the Hon’ble Apex Court in Narendra Bhat
v. State of Karnataka, (2009) 17 SCC 785 , iterated in respect of
the foregoing as under;
“3. This Court has in a series of judgments held
that a court exercising appellate power must not only
consider questions of law but also questions of fact
and in doing so it must subject the evidence to a
critical scrutiny…”
(Emphasis supplied)
8. Quite evidently, from a conjoint reading of the
aforenoted judicial dictates it can be perspicuously deduced that
the jurisdiction of this Court in an appeal extends to reappreciation
of the entire material placed on record of the trial court and to
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arrive at an independent conclusion as to whether the said evidence
can be relied upon or not. In fact, as aforenoted, court(s), while
exercising appellate power is not required to consider the question
of law, rather, also question of facts to affirmatively reach a
conclusion of guilt or innocence of an accused. In fact, it is trite
law2 that non-re-appreciation of the evidence on record in an
appeal may affect the case of either the prosecution or even the
accused. Needless to reemphasize that the appellate court is to be
further wary of fact that presumption of innocence of an accused,
even extents until an accused is held guilty by the final court of
appeal and that such a presumption is neither strengthened by an
acquittal nor weakened by a conviction in the trial court.
9. Therefore, being cognizant of the aforesaid
principles, however, before proceeding with the determination of
the rival contentions of the appellant and the State, it would be
pertinent to reproduce the relevant provisions under law/IPC, 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 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.
*** *** ***
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.
*** *** ***
2
State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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304-A. 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.”
(Emphasis supplied)
10. Notably, it is observed from perusal of the aforesaid
provisions that the essential ingredients3 to constitute an offence
punishable under Section 279 IPC are, “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.” Concurrently, the Hon’ble High Court of Delhi in
Ras Bihari Singh v. State (NCT of Delhi), 2017 SCC Online Del
12290, while explicating the ingredients of the provisions/
offence(s) under Sections 279/304A IPC inter alia observed as
under;
“9. To constitute an offence under Section 279
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 304-A 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;
and
3) that such act of the accused was rash or
negligent and that it did not amount to culpable
homicide.
*** *** ***
13. Section 304A which deals with unintentional
death caused by doing any rash or negligent act of the
offender. The applicability of this Section is limited to
rash or negligent acts which cause death but fall
short of culpable homicide amounting to murder or3
Vinod Kumar v. State, 2011 SCC OnLine Del 4347.
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culpable homicide not amounting to murder. To bring
an offence within the ambit of Section 304A, the
prosecution is required to bring on record that the act
was done by an accused and the death was caused due
to rash and negligent act.”
(Emphasis supplied)
11. Correspondingly, to constitute an offence under
Section 337 IPC, the prosecution is required to satisfy that the
injury had been caused to any person by the accused’s commission
of any rash or negligent act and that such injuries are simple in
nature. Quite evidently, in order to sustain a conviction under the
provisions under Sections 279, 337 and 304A IPC, the prosecution
is inter alia required to prove that the driver of the offending
vehicle/the accused was driving the same in a rash or negligent
manner and further by doing such an act, rashly or negligent, the
offender endangered human life or caused death of any person,
respectively. Palpably, rashness or negligence is one of the key
ingredients/elements to constitute the offences under the said
provisions. In this regard, it is apposite at this stage, to further
make a reference to the decision of the Hon’ble Supreme Court
in Rathnashalvan v. State of Karnataka, (2007) 3 SCC 474,
wherein the Hon’ble Court, while explicating the contours of the
terms, ‘rashness’ and ‘negligence’, observed as under;
“7. …Negligence and rashness are essential
elements under Section 304-A. 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. In criminal cases, the amount and
degree of negligence are determining factors. A
question whether the accused’s conduct 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
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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.
8. As noted above, “rashness” consists in
hazarding a dangerous or wanton act with the
knowledge that it is so, and that it may cause injury .
The criminality lies in such a case in running the risk
of doing such an act with recklessness or
indifference as to the consequences. Criminal
negligence on the other hand, is the gross and culpable
neglect or failure to exercise that reasonable and
proper care and precaution to guard against injury
either to the public generally or to an individual in
particular, which, having regard to all the
circumstances out of which the charge has arisen it
was the imperative duty of the accused person to have
adopted.”
(Emphasis supplied)
12. Analogously, the Hon’ble Apex Court, earlier in
Mohd. Aynuddin v. State of A.P., (2000) 7 SCC 72 , while
cogitating on the meaning/connotation of culpable rashness and
culpable negligence, noted as under;
“9. A rash act is primarily an overhasty 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.”
(Emphasis supplied)
13. Ergo, it is quite intelligible4 that negligence is the
breach of a duty caused by omission to do something which a
4
Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284.
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reasonable man guided by those considerations, which ordinarily
regulate the conduct of human affairs, would do or doing
something which a prudent and reasonable man would not do. In
contrast, a rash act is a negligent act done precipitately. In fact, it
is a settled law5, “Negligence is the genus, of which rashness is the
species.” Further, rashness consists6 in hazarding a dangerous or
wanton act with the knowledge that it is so, and that it may cause
injury. It is trite, the criminality lies in such a case in running the
risk of doing such an act with recklessness or indifference as to the
consequences. Needless to reiterate, under the provisions under
Sections 279/304A IPC7, “negligence indicates total negligence
on the part of the driver. It means that he was driving the vehicle
in such a negligent way which would stamp his driving by only
word “negligence”. Rashness indicates that he drives the vehicle
in such a way while driving he knows that by such driving, he is
likely to invite an accident but hopes that such accident may not
occur.”
14. Consequently, being wary of the principles
hereinunder noted, this Court would now proceed with the
determination of the issue/fact, ‘whether a finding of appellant’s
guilt, beyond reasonable doubt for the offences under Section
279/337/304A IPC, can be reached in the facts and
circumstances of the case?’. In particular, before proceeding with
determination as to, ‘whether the Ld. Trial Court committed any
error in convicting the appellant for the said offences?’. Markedly,
in this regard, is made to the deposition of PW-10/Nasir Ali, who
inter alia proclaimed in his deposition dated 18.03.2024 that the
5
Prabhakaran v. State of Kerala, (2007) 14 SCC 269.
6
S.N. Hussain v. State of A.P., (1972) 3 SCC 18.
7
Jayprakash Laxman Tambe v. State of Maharashtra, 2003 SCC OnLine Bom 1176.
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incident occurred six years prior to the date of his deposition, when
he was proceeding from Gopalpur side towards ISBT Kashmere
Gate via Outer Ring Road. As per PW-10, one petrol truck and a
motorcycle were in front of his/PW-10’s motorcycle, when the
said truck tried to overtake the said motorcycle, the handle of the
motorcycle got stuck in the rear end of the truck and the head of
the rider of the motorcycle was crushed by the rear right-side tyre
of the truck. Congruently, as per PW-10, two children were also
present along with the motorcycle driver and one of the said
children got injured, however, the other child got no injuries.
Thereafter, as per PW-10, he stopped his motorcycle and made
100 number call from the phone of driver of motorcycle. However,
it was avowed by PW-10 that the truck driver stopped the truck
and left the spot and he/PW-10 took out the keys of the truck from
the truck itself. After some time, PW-10 asserted that the police
officials reached at the spot and he/PW-10 handed over the key as
well as said mobile phone to them and also narrated the incident
to the said police officials. Congruently, PW-10 avowed that both
the injured persons were shifted to Hospital by the public persons
in a TSR and he/PW-10, thereafter, left the spot. Needless to
mention, PW-10 identified the appellant as the perpetrator of
offence, besides he also identified the offending vehicle, bearing
no. DL-1GC-7459 as well as the motorcycle of injured bearing no.
DL-5SAD-1317 from their photographs, Ex. Pl (Colly.). Apposite
to note here, Ld. Addl. PP for the State posed leading question
from PW-10, wherein he/PW-10 avowed, as under;
“…It is correct that the incident took place on
28.12.2018 at about 11:35AM when I was going from
my home towards ISBT and I was working in OLA at
that time. It is also correct that the offending truck was
of Hindustan Petroleum Corporation Ltd.
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However, I do not remember the registration
number of the same. (At this stage, witness is
confronted with his statement Us 161 Cr.P.C. which is
Mark ‘P10’ from point A to Al where the registration
number of the truck is recorded as DL IGC-7459)
It is also correct that the accidental motorcycle was
being driven by the deceased on the right side of the
truck and two children were pillion riders of the said
motorcycle.
However, I do not remember the registration
number of the said motorcycle. (At this stage, witness
is confronted with his statement Us 161 Cr.P.C. which
is already Mark “P10′ from point B to B1 where the
registration number of the truck is recorded as DL-5S-
AD-1317).
It is also correct that one child got injuries on his
head and arm. It is also correct that the blood was
oozing out from the head of deceased and injured
child. It is also correct that there was traffic jam on the
road due to the accident. It is also correct that I saw
the accident happen. It is also correct that the police
officials took the photographs of the spot and shifted
the aforesaid truck and motorcycle on the corner of
the road to remove the traffic jam and thereafter, I
went to my duty. It is also correct that the police
officials called me and asked me to come to the spot
and told the that the driver of the aforesaid motorcycle
had died but the children were out of danger. It is also
correct that the site plan was prepared in my
presence by the IO which is Ex. PW10/A bearing my
signature at point A. It is also correct that the IO
seized aforesaid truck and motorcycle of deceased
vide seizure memos which are Ex. PW10/B and Ex.
PW10/C both bearing my signature at print A. It is
also correct that the IO seized the DL of the accused
vide memo which is Ex. PW10/D bearing my
signature at point A. It is also correct that the IO
seized the documents of the offending truck vide
memo which is Ex. PW10/E bearing my signature at
point A. It is also correct that the IO arrested the
accused and personally searched the accused vide
memos which are Ex. PW10/F and Ex. PW10/G
bearing my signature at point A. It is also correct that
the IO recorded disclosure statement of the accused
vide memo which is Ex. PW10/G bearing my
signature at point A. It is also correct that IO recorded
my statement Us 161 Cr.P.C.
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It is wrong to suggest that accused and his khalasi
were standing at the corner of the road. (At this
stage, witness is confronted with his statement U/s
161 Cr.P.C. which is already Mark ‘P10’ from point C
to C1 where the it is so recorded).
It is wrong to suggest that I handed over the
accused and his khalasi to the police officials. (At this
stage, witness is confronted with his statement U/s
161 Cr.P.C. which is already Mark ‘P10’ from point D
to DI where it is so recorded).
Vol. The accused himself came before the police
officials.
It is wrong to suggest that I am not disclosing the
complete facts due to lapse of time…”
(Emphasis supplied)
15. Remarkably, upon being cross examined by/on
behalf of the appellant, PW-10, asserted, as under;
“XXXXXX Sh. ***, Ld. Counsel for the
accused.
I was going for my work as I was working in OLA
at that time at about 10-11AM. I was at a distance of
about 10-20 meters from the offending truck. The
accidental motorcycle was behind the offending truck.
I cannot tell the speed of the offending truck.
However, the truck was at slow speed. The speed of
the accidental motorcycle and my motorcycle was
about 40 km/hr. I had not seen the driver of the
offending truck at the time of accident, but he came at
the spot after sometime as he left the spot after the
accident. I do not know whether any other person was
present with the truck driver or not. There was no
traffic jam at the time of the accident. The road on
which the accident took place was a 4 lane road. The
driver of the aforesaid motorcycle was wearing a
helmet. The offending truck was white and red in
colour. The truck was driving in its lane and trying to
climb the flyover by going from left side to right
side.
It is wrong to suggest that the driver of the
accidental motorcycle himself hit the offending truck
and thereafter his motorcycle lost balance and he fell
down on the road. It is wrong to suggest that the
aforesaid truck did not climb the aforesaid flyover. It
is wrong to suggest that I am deposing falsely as I
have not seen the accident happen…”
(Emphasis supplied)
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16. Germane for the purposes of the present discourse to
make a reference to the testimony of PW-6/Master ‘A’, son of
the deceased and around 12 years of age at the time of his
deposition, who inter alia proclaimed that the incident had taken
place in the year 2018, when he/PW-6 along with his brother and
father were on motorcycle. As per PW-6, a truck came from
behind and hit their motorcycle. Consequently, as per PW-6, they
all fell from the said motorcycle and his brother and father
sustained injuries, as well as were shifted to the Hospital. PW-6
further asserted that he was taken to the police station, where his
mother came and he/PW-6 along with his mother went to the
Hospital, however, in their passage to the Hospital, he came to
know that his father had passed away. Congruently, as per PW-6,
his statement was recorded by the police officials on 10.03.2019.
Needless to mention, PW-6 identified the accidental motorcycle
and offending vehicle/truck from their photographs in judicial file
as well as the appellant as the accused/perpetrator of offence,
during the course of his deposition. Pertinently, upon being cross-
examined by/on behalf of the appellant, PW-6 proclaimed, as
under;
“XXXXXX by Sh. ***, Ld. Counsel for accused.
The incident took place at around 11 am. The truck
hit our motorcycle from left side. I did not get
unconscious after the accident.
There were people around but no so much. I am
not aware of the speed of the motorcycle and truck.
The driver of truck went ahead but was stopped by the
public. Thereafter, many people gathered there. I have
witnessed the accident as I was pillion rider on the
motorcycle. I was looking in my front.
It is wrong to suggest that the driver was helping
the injured person. It is wrong to suggest that the
accident did not take place from the truck. It is
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wrong to suggest that I did not see the accident as I
was looking in my front. It is wrong to suggest that I
am deposing falsely.
*** *** ***
It is wrong to suggest that the accused is not the
same person who has caused the accident.”
(Emphasis supplied)
17. Correspondingly, reference is made to the deposition
of PW-7/Master ‘E’/victim and around 8 years of age at the time
of his deposition, who avowed that he was proceeding along with
his father and brother on a motorcycle on the date when incident
had transpired. PW-7 further proclaimed that one tempo hit their
motorcycle from behind and the motorcycle fell on the ground.
Consequently, as per PW-7, he and his father sustained injuries,
however, PW-7’s brother did not suffer any injury. Thereafter, as
per PW-7, public persons removed him and his father to the
Hospital. Pertinently, PW-7 identified the accidental motorcycle
as well as the tyres of offending truck from their photographs,
though, he proclaimed that he had not seen the driver of the tempo
at that point in time. Significantly, PW-7 asserted under his cross-
examination, as under;
“…XXXXXXX by Sh. ***, Ld. Counsel for
accused.
The tempo hit our motorcycle from backside and
the truck hit at the backlight of the motorcycle. At the
time of accident, it was day time.
It is wrong to suggest that the accident did not take
place from the truck. It is wrong to suggest that I did
not see the accident as I was looking in my front. It
is wrong to suggest that I am deposing falsely…”
(Emphasis supplied)
18. Appreciably, for the purpose(s) of present discourse,
it is also pertinent here to make a reference to the deposition of
PW-5/Om Singh, who testified that on 28.12.2012, he was
working as helper on the truck bearing registration DL-IGC-7459
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and the appellant was the driver of the said truck. Correspondingly,
as per PW-5, on that day, they were proceeding towards Shastri
Park, Delhi and the truck was filled with petrol. At about 11:30.
a.m., as per PW-5, they were about to reach Wazirabad, when they
heard a noise of hitting some vehicle with their truck. PW-5 further
asserted that the appellant stopped the truck and they noted that a
motorcycle was lying on the road along with the rider and a child.
As per PW-5, both the rider and said child were injured and the
rider was unconscious, while the child was conscious. Further, as
per PW-5, the said motorcycle had hit at the right side back tyre of
their truck. Congruently, it was deposed by PW-5 that public
persons gathered there and they were standing at some distance
from the vehicle. Thereafter, police officials reached at the spot
and the injured were shifted to the Hospital, while they/PW-5 and
accused were taken to PS. Timarpur, where his/PW-5’s statement
was recorded by the IO. Needless to mention that PW-5 correctly
identified the offending vehicle as well as the accidental
motorcycle from their photographs. However, the identity of the
appellant was not disputed under the deposition of PW-5. Here, it
is pertinent to note that PW-5 was cross-examined by Ld. Addl.
PP for the State, as he was found not disclosing the entire facts,
where PW-5 avowed, as under;
“XXXXXX by Ld. APP for the State.
It is correct that police officials recorded our
addresses at the spot and parked the motorcycle and
truck at the corner of the road and cleared the traffic
from the spot.
It is wrong to suggest that we did not park the
motorcycle of the injured and that blood was oozing
out of the head of the rider of the motorcycle. It is
wrong to suggest that public persons took the both
injured persons to the hospital in a TSR. It is wrong to
suggest that I am not disclosing the complete facts and
C.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 27 of 52Digitally
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ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.04.21
16:22:06
+0530
not identifying the remaining photographs due to
lapse of time.”
(Emphasis supplied)
19. Notably, PW-5 was not cross examined by/on behalf
of the appellant, despite opportunity. Concomitantly, it is relevant
here to further refer to the testimony of PW-8/Satish Kumar Sapra,
who inter alia deposed that the appellant was an employee of their
company, i.e., HPCL and that on the day of the incident, he/the
appellant was driving the company owned vehicle. Needless to
mention that PW-8 correctly identified the appellant as well as the
offending vehicle from its photographs (Ex. P2(Colly.)).
Relevantly, upon being cross examined by/on behalf of the State,
PW-8 affirmed that on 28.12.2018, the appellant, bearing
employee no. 3541160, caused the accident around 11:35 a.m.,
near Wazirabad flyover and he/PW-8 issued a letter (Ex. PW8/A)
regarding the same to the SHO, PS Timarpur. Remarkably, upon
being cross-examined by/on behalf of the appellant, PW-8
affirmed that he had not seen the accident.
20. Appositely, for the purpose of exhaustiveness, this
Court deems it apposite to refer to the testimony of PW-12/Retd.
SI Om Prakash, who deposed that on 28.12.2018, he was posted
as ASI at Timarpur and on that day, he along with Ct. Sanjeev
were on emergency duty from 08:00 a.m. to 08:00 p.m.
Congruently, PW-12 asserted that at around 12:00 noon, he
received DD No. 24A regarding an accident and thereafter,
he/PW-12 along with Ct. Sanjeev, went to the spot, i.e., outer Ring
Road towards ISBT near Wazirabad flyover, where one truck
bearing no. DL-1GC-7459 of Hindustan Petroleum Corporation
and an accidental motorcycle bearing no. DL-5SAD-1317, was
found in the middle of the road. Correspondingly, as per PW-12,
C.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 28 of 52
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ABHISHEK GOYAL
GOYAL Date:
2026.04.21
16:22:11
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there was blood on the road and on inquiry, it was determined that
the injured had been shifted to Hospital. As per PW-12, there was
traffic jam and he/PW-12 parked the motorcycle as well as the
aforesaid truck at the side of the road, after taking photographs at
the spot. Further, PW-12 proclaimed that he met the appellant,
Gopal Dutt and his khalasi, Om Singh and handed over the driver
of the truck namely Gopal Dutt to Ct. Sanjeev as well as he/PW-12
went to the Sushruta Trauma Centre. PW-12 also asserted that he
did not find any eyewitness at the trauma center, where one injured
was found dead at the Hospital and one child was under treatment.
Consequently, PW-12 collected the MLCs of deceased and injured
child and thereafter, he returned to the spot. On the basis of the
DD entry and MLC, as per PW-12, he/PW-12 prepared the tehrir
(Ex. PW12/A) and handed over the same to Ct. Sanjeev for the
registration of FIR, whereupon the instant FIR was got registered.
Thereafter, as per PW-12, he telephonically called the PCR caller
from the spot, and he disclosed his name as Naseer Ali as well as
he/Nasir Ali reached at the spot. Consequently, PW-12 made
inquiry from Naseer Ali and he/PW-12 prepared the site plan at
the instance of Nasir Ali, as Ex. PW10/A. PW-12 also proclaimed
of seizure of the Driving License of the appellant vide seizure
memo, Ex. PW10/D as well as the documents of the offending
truck vide seizure memo, Ex. PW10/E. Congruently, PW-12
avowed that he seized the offending truck and accidental
motorcycle vide seizure memos, Ex. PW10/B and Ex. PW10/C.
After interrogation, as per PW-12, he arrested the appellant as well
as conducted his personal search vide memos, Ex. PW10/F and
Ex. PW10/G, as well as recorded the disclosure statement of the
appellant, Ex. PW10/G1. Thereafter, as per PW-12, they along
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ABHISHEK GOYAL
GOYAL Date:
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with the case property and the appellant went to the police station,
where the case property was deposited in the malkhana, besides
the body of deceased was got preserved at Subzi Mandi Mortuary.
Subsequently, as per PW-12, postmortem examination pf the
deceased was got conducted against application (Ex. PW12/C) and
the postmortem documents were prepared as, Ex. PW12/D
(Colly.) (1-13). PW-12 also asserted that after such postmortem
examination, deceased’s body was handed over to his relatives
vide handing over memo, Ex. PW12/E. PW-12 further proved the
mechanical inspection report of the offending vehicle as well as
the accidental motorcycle as well as asserted that on completion
of investigation, he filed the chargesheet before the Ld. Trial
Court. Needless, to mention that PW-12 correctly identified the
appellant before the Ld. Trial Court, as well as also identified the
aforesaid vehicles from their photographs, Ex. P1 (Colly.)(1-10).
21. Relevantly, in his cross examination by/at the behest
of the appellant, PW-12 deposed as under;
“XXXXXX by Sh. ***, Ld. Proxy Counsel for the
accused.
It is correct that on the MLC of the injured, hit and
run is mentioned but I did not make any
investigation regarding this fact. It is correct that no
fresh damage is mentioned on the mechanical
inspection report of the tanker. It is also correct that
Nasir Ali had not stated to me that handle of the
motorcycle got stuck in the backside of the truck and
he took out the key of the truck from the truck itself
and after sometime police came to the spot and he
handed over the key and mobile phone to them after
narrating the incident. It is also correct that the
tanker was filled with 23,000 litres of petrol. I was
present near the PS when I received the DD No. 24-A.
The distance between the PS and the spot was about
500 metres. I reached at the spot at around 12:15-
12:20 PM and PCR staff, traffic staff and eyewitness
were present there. I remained at the spot for about 30
minutes before going to the hospital. I reached at the
C.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 30 of 52Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2026.04.21
16:22:19
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hospital at around 1-1:15PM and remained there for
about 30-35 minutes. I returned to the spot at around
1:45PM. Distance between spot and hospital was
about 5 kms. I remained at the spot till 4:30PM. In the
PCR call the number of the eyewitness was found. He
told me that he was doing private job. He came to the
spot within 35-40 minutes of my call. I recorded the
statement of the eyewitness at the spot. I recorded
the statement of Om Singh prior to the statement of
eyewitness at the spot. I did not record to statement of
any public person when I first reached at the spot as
no public person agreed to join the investigation. The
tanker was 10-15 feet before the starting point of the
flyover. Eyewitness did not hand over to me any
belongings of the deceased.
It is wrong to suggest that a petrol tanker cannot
run at a speed of more than 35 km/hr. It is further
wrong to suggest that the eyewitness met me for the
first time when I called him at the spot after
returning from the hospital. It is wrong to suggest that
the eyewitness was planted. It is wrong to suggest that
the driver of the motorcycle caused the accident due
to his own negligence. It is wrong to suggest that I did
not conduct a fair investigation. It is wrong to suggest
that I filed a false charge-sheet to secure the
compensation for the deceased. It is wrong to
suggest that I am deposing falsely.”
(Emphasis supplied)
22. Conspicuously, in light of the foregoing discussion,
this Court would proceed with the determination of the rival
contentions on behalf of the appellant and that on behalf of the
State. As aforementioned, Ld. Counsel for the appellant has
vehemently contended that the testimonies of PW-6/Master ‘A’
and PW-7/Master ‘E’ could not have been relied upon by the Ld.
Trial Court, while reaching a finding of appellant’s guilt, being
interested witnesses as related to the deceased by blood. However,
the said contention fails to impress this Court in view of the
persistent avowals of the superior courts, wherein it has been
tenaciously reiterated that merely because a witness happens to be
a relative of the victim of the crime, he/she cannot be characterized
C.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 31 of 52
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ABHISHEK GOYAL
GOYAL Date:
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as an ‘interested witness’. In fact, in this regard, the Hon’ble
Supreme Court in State of Maharashtra v. Ahmed Shaikh
Babajan, (2009) 14 SCC 267, explicitly remarked as under;
“35. Very recently in Ashok Kumar Chaudhary v.
State of Bihar [(2008) 12 SCC 173: (2009) 1 SCC
(Cri) 339: AIR 2008 SC 2436] this Court had the
occasion to deal with the question of
creditworthiness of the evidence of the relatives of
the victim. On a review of several decisions on the
point, including Dalip Singh v. State of Punjab [AIR
1953 SC 364 : 1953 Cri LJ 1465 : 1954 SCR 145],
Masalti v. State of U.P. [AIR 1965 SC 202: (1965) 1
Cri LJ 226: (1964) 8 SCR 133] and Rizan v. State of
Chhattisgarh [(2003) 2 SCC 661: 2003 SCC (Cri)
664], it has been observed that though the Court has
to scrutinise such evidence with greater care and
caution but such evidence cannot be discarded on the
sole ground of the interest of such witness in the
prosecution. The relationship per se does not affect
the credibility of a witness. Merely because a witness
happens to be a relative of the victim of the crime,
he/she cannot be characterised as an “interested”
witness. The term “interested” postulates that the
person concerned has some direct or indirect interest
in seeing that the accused is somehow or the other
convicted either because he had some animus with
the accused or for some other oblique motive.”
(Emphasis supplied)
23. Reference in respect of the foregoing is further made
to the decision of the Hon’ble Apex Court in State of Rajasthan
v. Kalki, (1981) 2 SCC 752, wherein the Hon’ble Court in
analogous terms, remarked as under;
“7. …High Court has declined to rely on the
evidence of PW 1 on two grounds: (1) she was a
“highly interested” witness because she “is the wife
of the deceased”, and (2) there were discrepancies in
her evidence. With respect, in our opinion, both the
grounds are invalid. For, in the circumstances of the
case, she was the only and most natural witness; she
was the only person present in the hut with the
deceased at the time of the occurrence, and the only
person who saw the occurrence. True, it is, she is the
wife of the deceased; but she cannot be called an
“interested” witness. She is related to the deceased.
C.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 32 of 52
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ABHISHEK GOYAL
GOYAL Date:
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“Related” is not equivalent to “interested”. A witness
may be called “interested” only when he or she
derives some benefit from the result of a litigation; in
the decree in a civil case, or in seeing an accused
person punished. A witness who is a natural one and
is the only possible eyewitness in the circumstances
of a case cannot be said to be “interested”. In the
instant case PW 1 had no interest in protecting the
real culprit, and falsely implicating the respondents.”
(Emphasis supplied)
24. Correspondingly, this Court finds itself difficult to
concur with the submissions of the Ld. Counsel for the appellant
that the depositions of PW-6 and PW-7 are to be discarded merely
for the reason of the age of the said witnesses, at the time of the
offence as well as the time of their depositions, admitted both the
witnesses, being minor. In fact, in this regard, even this Court
unambiguously records that it has been recurrently declared by the
superior courts8 that no testimony of a witness can be discarded
merely based on their age and that a child witness9, if found
competent to depose to the facts and reliable on such evidence,
could be the basis of conviction. Reference in this regard is made
to the decision of the Hon’ble Apex Court in State of M.P. v.
Balveer Singh, (2025) 8 SCC 545, wherein the Hon’ble Court,
while carrying out an exhaustive review of various judicial
dictates, enunciated the law, in respect of the foregoing, as under;
“31. The Indian Evidence Act, 1872 (in short “the
Evidence Act“) does not prescribe any particular age
as a determinative factor to treat a witness to be a
competent one. On the contrary, Section 118 of the
Evidence Act envisages that all persons shall be
competent to testify, unless the court considers that
they are prevented from understanding the questions
put to them or from giving rational answers to these
questions, because of tender years, extreme old age,8
State of Maharashtra v. Bharat Fakira Dhiwar, (2002) 1 SCC 622 and Harischandra v. State of Maharashtra,
2023 SCC OnLine Bom 1870.
9
Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341.
C.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 33 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.04.21 16:22:35 +0530
disease — whether of mind, or any other cause of the
same kind. A child of tender age can be allowed to
testify if he has intellectual capacity to understand
questions and give rational answers thereto.
32. In Dattu Ramrao Sakhare v. State of
Maharashtra [Dattu Ramrao Sakhare v. State of
Maharashtra, (1997) 5 SCC 341 : 1997 SCC (Cri)
685] this Court held that as long as a child witness is
found to be competent to depose i.e. capable of
understanding the questions put to it and able to give
rational answers, the testimony of such witness can be
considered as evidence in terms of Section 118 of the
Evidence Act, irrespective of their tender age or
absence of any oath. The only additional factor to be
considered is that the witness must be found to be
reliable, exhibiting the demeanour of any other
competent witness, with no likelihood of having
been tutored. It further clarified that there is no
requirement or condition that the evidence of a child
witness must be corroborated before it can be
considered, and rather the insistence of any
corroboration is only a rule of prudence that would
depend upon the peculiar facts and circumstances of
each case.
*** *** ***
43. From the above exposition of law, it is clear
that the evidence of a child witness for all purposes
is deemed to be on the same footing as any other
witness as long as the child is found to be competent
to testify. The only precaution which the court
should take while assessing the evidence of a child
witness is that such witness must be a reliable one due
to the susceptibility of children by their falling prey to
tutoring. However, this in no manner means that the
evidence of a child must be rejected outrightly at the
slightest of discrepancy, rather what is required is that
the same is evaluated with great circumspection.
While appreciating the testimony of a child witness
the courts are required to assess whether the
evidence of such witness is its voluntary expression
and not borne out of the influence of others and
whether the testimony inspires confidence. At the
same time, one must be mindful that there is no rule
requiring corroboration to the testimony of a child
witness before any reliance is placed on it. The
insistence of corroboration is only a measure of
caution and prudence that the courts may exercise if
deemed necessary in the peculiar facts and
circumstances of the case.”
(Emphasis supplied)
C.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 34 of 52
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ABHISHEK GOYAL
Date:
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16:22:42
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25. In so far as the contention of Ld. Counsel for the
appellant pertaining to non-examination of any other public
witness, except PW-5, PW-6, PW-7, PW-8 and PW-10 in the
instant case is concerned, this Court unambiguous observes that
mere fact that the prosecution, opted not to produce the other
public persons, asserted to be present or would have been present
at the time of incident as prosecution witnesses, cannot be read
against the prosecution in light of the decision of the Hon’ble
Supreme Court in Rajesh Yadav v. State of U.P., (2022) 12 SCC
200, wherein the Hon’ble Court explicated the law, by enunciating
as under;
“34. A mere non-examination of the witness per se
will not vitiate the case of the prosecution. It depends
upon the quality and not the quantity of the witnesses
and its importance. If the court is satisfied with the
explanation given by the prosecution along with the
adequacy of the materials sufficient enough to
proceed with the trial and convict the accused, there
cannot be any prejudice. Similarly, if the court is of
the view that the evidence is not screened and could
well be produced by the other side in support of its
case, no adverse inference can be drawn. Onus is on
the part of the party who alleges that a witness has not
been produced deliberately to prove it.”
(Emphasis supplied)
26. Pertinently, Ld. Counsel for the appellant further
strenuously contended that the Ld. Trial Court did not consider
the contradictions, variations and/or improvements, in the
testimonies of various prosecution witnesses while pronouncing
the impugned judgment. However, in order to appreciate the said
contention, this Court deems it apposite to iterate and explore the
judicial precedents governing the law of contradictions in the
testimony of the witness. In particular, in this regard, this Court
deems it apt to outrightly make a reference to the decision of the
C.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 35 of 52
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ABHISHEK GOYAL
GOYAL Date:
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Hon’ble Supreme Court in State of U.P. v. M.K. Anthony,
(1985) 1 SCC 505, wherein the Hon’ble Court inter alia observed
as under;
“10. While appreciating the evidence of a
witness, the approach must be whether the evidence
of the witness read as a whole appears to have a ring
of truth. Once that impression is formed, it is
undoubtedly necessary for the court to scrutinise the
evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out
in the evidence as a whole and evaluate them to find
out whether it is against the general tenor of the
evidence given by the witness and whether the
earlier evaluation of the evidence is shaken as to
render it unworthy of belief. Minor discrepancies on
trivial matters not touching the core of the case, hyper-
technical approach by taking sentences torn out of
context here or there from the evidence, attaching
importance to some technical error committed by the
investigating officer not going to the root of the matter
would not ordinarily permit rejection of the evidence
as a whole. If the court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of evidence given by the
witness, the appellate court which had not this
benefit will have to attach due weight to the
appreciation of evidence by the trial court and unless
there are reasons weighty and formidable it would not
be proper to reject the evidence on the ground of
minor variations or infirmities in the matter of trivial
details. Even honest and truthful witnesses may differ
in some details unrelated to the main incident
because power of observation, retention and
reproduction differ with individuals. Cross-
examination is an unequal duel between a rustic and
refined lawyer. Having examined the evidence of this
witness, a friend and well-wisher of the family
carefully giving due weight to the comments made by
the learned counsel for the respondent and the
reasons assigned to by the High Court for rejecting his
evidence simultaneously keeping in view the
appreciation of the evidence of this witness by the trial
court, we have no hesitation in holding that the High
Court was in error in rejecting the testimony of
witness Nair whose evidence appears to us
trustworthy and credible.”
(Emphasis supplied)
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ABHISHEK GOYAL
GOYAL Date:
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27. Similarly, in this regard, the Hon’ble Apex Court in
Rammi v. State of M.P., (1999) 8 SCC 649, noted 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.”
(Emphasis supplied)
28. Evidently, from the conspectus of the above, it is
clearly deduced that minor discrepancies, which do not go into
the root of the matter and shake the basic version of the
witnesses, cannot be permitted to be annexed with any undue
weight. In fact, it is trite law10, the discrepancies which do not
shake the basic version of the prosecution and those which
emanate due to normal errors of perception or observation should
not be given importance and must necessarily be discarded. The
rationale behind the same is quite obvious, as elucidated by the
Hon’ble Supreme Court in State of U.P. v. Naresh, (2011) 4 SCC
324, inter alia recording as under;
“30. In all criminal cases, normal discrepancies
are bound to occur in the depositions of witnesses
due to normal errors of observation, namely, errors
of memory due to lapse of time or due to mental
disposition such as shock and horror at the time of
occurrence. Where the omissions amount to a
contradiction, creating a serious doubt about the
truthfulness of the witness and other witnesses also
make material improvement while deposing in the
10
Appabhai v. State of Gujarat, 1988 Supp SCC 241
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court, such evidence cannot be safe to rely upon.
However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters
which do not affect the core of the prosecution case,
should not be made a ground on which the evidence
can be rejected in its entirety. The court has to form
its opinion about the credibility of the witness and
record a finding as to whether his deposition inspires
confidence.
“9. Exaggerations per se do not render the
evidence brittle. But it can be one of the factors
to test credibility of the prosecution version,
when the entire evidence is put in a crucible for
being tested on the touchstone of credibility.”…
Therefore, mere marginal variations in the
statements of a witness cannot be dubbed as
improvements as the same may be elaborations of
the statement made by the witness earlier. The
omissions which amount to contradictions in
material particulars i.e. go to the root of the
case/materially affect the trial or core of the
prosecution’s case, render the testimony of the
witness liable to be discredited…”
(Emphasis supplied)
29. Ergo, to recapitulate, in order to disregard the
testimony of a witness, it is imperative that the same is replete
with material improvements, contradictions and variation. In
contrast, law provides for due concession to marginal variations
and normal discrepancies in the statement/testimony of a witness,
which are bound to occur due to normal errors of observation,
namely, errors of memory due to lapse of time or due to mental
disposition such as shock and horror at the time of occurrence.
Consequently, in light of the above, when the testimonies of the
various witnesses, i.e., PW-10/Nasir Ali, PW-6/Master ‘A’,
PW-8/Satish Kumar Sapra and PW-5/Om Singh are
conscientiously analyzed, it is reiterated that the identity of the
appellant as the driver of the offending vehicle on the date and
time of incident in question stand duly proved. As aforenoted, not
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ABHISHEK GOYAL
GOYAL Date:
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only did PW-10/Nasir Ali and PW-6/Master ‘A’, duly identified
the appellant as the perpetrator of offence under their respective
depositions, rather, as noted herein, PW-5/Om Singh, specifically
proclaimed that on 28.12.2012, he was working as helper on the
truck bearing registration DL-1GC-7459 and the appellant was the
driver of the said truck. Correspondingly, as per PW-5, on that day,
they were proceeding towards Shastri Park, Delhi and the truck
was filled with petrol. At about 11:30. a.m., as per PW-5, they
were about to reach Wazirabad, when they heard a noise of hitting
some vehicle with their truck. PW-5 further asserted that the
appellant stopped the truck and they noted that a motorcycle was
lying on the road along with the rider and a child. As per PW-5,
both the rider and said child were injured and the rider was
unconscious, while the child was conscious. Further, as per PW-5,
the said motorcycle had hit at the right side back tyre of their truck.
Pertinently, nowhere under the cross examination of PW-5, any
suggestion and/or question was posed to the said witness, by/on
behalf of the appellant, to propose/suggest that the appellant was
not driving the offending vehicle on the date of commission of the
offence or that PW-5 was deposing falsely before the Ld. Trial
Court.
30. Correspondingly, PW-8/Satish Kumar Sapra also
avowed in his deposition that on the date of incident, the appellant
as driving the vehicle of their company, i.e., HPCL as well as
affirmed under his cross examination by/at the behest of State that
on 28.12.2018, the appellant, bearing employee no. 3541160
caused the accident around 11:35 a.m., near Wazirabad flyover.
Pertinently, even under the cross examination of PW-8, no
suggestion/question was posed by/on behalf of the appellant to the
C.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 39 of 52
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ABHISHEK GOYAL
GOYAL Date:
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said witness to belie the said version put forth by PW-8. Needless
to mention that same is notwithstanding the fact that PW-8 further
proved his letter dated 28.12.2018 as Ex. PW8/A, affirming the
aforesaid facts, in the following terms;
“… This is to state Sh. Gopal Dutt Faloria our
Company Driver (EMP No. 3541160) was driving
Company owned Tank truck No. DL1GC7459 from
our Delhi Terminal, Village Tikri Kalan to Our retail
Outlet M/s. Kundan Lal Service Station, Shastri Park
with 23000 lt. petrol. The Tank Truck met with an
accident at around 1135 am near Wazirabad Flyover
on 28.12.18…”
(Emphasis supplied)
31. In fact, even during the course of recording of his
statement under Section 281/313 Cr.P.C. on 23.07.2024, the
appellant, duly admitted that he was driving the offending vehicle
on the date of the offence, however, asserted that he was driving
the said vehicle in his own lane, following proper rules and
regulations. Apposite in this regard to reproduce the relevant
extracts of the appellant’s statement under Section 281/313
Cr.P.C., as under;
“… Q. 3 It is in evidence against you that you were
driving the truck of Hindustan Petroleum Corporation
bearing registration DL-1GC-7459 and PW-5 Om
Singh was working as helper on the above said date
and time. What do you have to say?
Ans. It is correct.
*** *** ***
Q. 34 Do you have anything else to say?
Ans. I am innocent. I have been falsely
implicated in the present case. I was driving my
vehicle in my lane by following proper rules and
regulations. No accident took place with my vehicle
and actual culprit ran away from the spot…”
(Emphasis supplied)
32. Further, from the testimonies of PW-10/Nasir Ali and
PW-6/Master ‘A’, the mens rea, i.e., rashness and negligence in
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the appellant’s conduct, in the considered opinion of this Court, is
quite manifest. In fact, in this regard, this Court concedes with the
finding of the Ld. Trial Court that PW-10 explicitly deposed in his
testimony that on the date of the incident, when he was proceeding
from Gopalpur side towards ISBT Kashmere Gate via Outer Ring
Road, he noted that one petrol truck and a motorcycle were in front
of his/PW-10’s motorcycle. Correspondingly, as per PW-10, when
the said truck tried to overtake the said motorcycle, the handle of
the motorcycle got stuck in the rear end of the truck and the head
of the rider of the motorcycle was crushed by the rear right-side
tyre of the truck. Congruently, as per PW-10, two children were
also present along with the motorcycle driver and one of the said
children got injured, however, the other child got no injuries.
Correspondingly, PW-10 affirmed that the accidental motorcycle
was being driven on the right side of the car at the relevant pointy
of time. Pertinently, PW-10 specifically denied under his cross
examination by/at the behest of the appellant that on the date of
the accident, the driver of the accidental motorcycle himself, hit
the offending truck and thereafter, his motorcycle lost balance, and
he fell down on the road. Similarly, PW-6/Master ‘A’ avowed in
his deposition that on the fateful day, a truck came from behind
and hit their motorcycle, whereupon they all fell down from the
said motorcycle and PW-6’s/his brother and father sustained
injuries, as well as were shifted to the Hospital. Needless to
reiterate that PW-5/Om Singh, proclaimed in his testimony that on
the date of occurrence, at about 11:30. a.m., as per PW-5, they
were about to reach Wazirabad, when they heard a noise of hitting
some vehicle with their truck. PW-5 further asserted that the
appellant stopped the truck and they noted that a motorcycle was
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lying on the road along with the rider and a child. As per PW-5,
both the rider and said child were injured and the rider was
unconscious, while the child was conscious. Further, as per PW-5,
the said motorcycle had hit at the right side back tyre of their truck.
Concurrently, the deposition of the said witnesses, further finds
corroboration from the mechanical inspection report of the
accidental vehicle (Ex. A8), wherein it was noted that the
accidental motorcycle had inter alia suffered, “Head Light Assy.
Damaged… F indicator damage… Leg Guard damage…”.
Clearly, from a conjoint reading of the deposition of the said
witnesses, it is quite manifest that at the relevant point of time, the
accidental motorcycle was being driver on the right side of the
offending vehicle and that the offending vehicle while
endeavoring to overtake the accidental motorcycle, approached
from behind and in the said process, the handle of the accidental
motorcycle got struck in the right side rear tyre of the truck.
Needless to reiterate that PW-10 specifically denied that the
accidental motorcycle struck the offending vehicle whereupon the
accidental motorcycle lost the balance and fell down. On the
contrary, even PW-6 asserted that the offending vehicle had
emerged from behind and hit their vehicle with such an impact that
all the riders of the accidental motorcycle fell down on the road
whereupon the deceased and the victim sustained injuries.
33. Here, it is further apposite to note that, though, this
Court is conscious of the repeated avowals of the superior courts
that speed of a vehicle may not only be the determinative test for
its rashness or negligence and that culpability of an
individual/accused may be manifest, even when a vehicle is being
driven in a slow speed. Reference in this regard is made to the
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decision of the Hon’ble Apex Court in Ravi Kapur v. State of
Rajasthan, (2012) 9 SCC 284, wherein the Hon’ble Court,
unambiguously noted, as under;
“12. Rash and negligent driving has to be
examined in the light of the facts and circumstances of
a given case. It is a fact incapable of being construed
or seen in isolation. It must be examined in light of the
attendant circumstances. A person who drives a
vehicle on the road is liable to be held responsible
for the act as well as for the result. It may not be
always possible to determine with reference to the
speed of a vehicle whether a person was driving rashly
and negligently. Both these acts presuppose an
abnormal conduct. Even when one is driving a vehicle
at a slow speed but recklessly and negligently, it
would amount to “rash and negligent driving” within
the meaning of the language of Section 279 IPC. That
is why the legislature in its wisdom has used the words
“manner so rash or negligent as to endanger human
life”. The preliminary conditions, thus, are that (a) it
is the manner in which the vehicle is driven; (b) it be
driven either rashly or negligently; and (c) such rash
or negligent driving should be such as to endanger
human life. Once these ingredients are satisfied, the
penalty contemplated under Section 279 IPC is
attracted.”
(Emphasis supplied)
34. As aforenoted, PW-10 explicitly deposed that when
the offending truck tried to overtake the said motorcycle, the
handle of the motorcycle got stuck in the rear end of the truck and
the head of the rider of the motorcycle was crushed by the rear
right-side tyre of the truck. Correspondingly, as aforenoted,
PW-10 denied under his cross examination that on the date of the
accident, the driver of the driver of the accidental motorcycle
himself, hit the offending truck and thereafter, his motorcycle lost
balance, and he fell down on the road. Needless to further mention,
even PW-6 reiterated that the truck had come from behind and hit
their motorcycle, with the impact being such that he/PW-6, his
father/deceased and the victim/PW-7 fell down from their
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ABHISHEK GOYAL
GOYAL Date:
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motorcycle, wherein PW-7 and the deceased sustained injuries.
Needless to reiterate, the appellant inter alia duly admitted the
MLCs of the deceased and victims as well as the post-mortem
report of the deceased in terms of the provisions under Section 294
Cr.P.C. on 03.11.2022. Correspondingly, the MLC of the deceased
(Ex. AD9) records of presence of, “…CLW 10 cm*2cm over (L)
temporal area…degloved (L) pinna of ear…CLW 5cm*2cm over
dorsum of (R) foot…CLW 2cm*1cm between (R) great toe & 2nd
toe…”, with the deceased being brought dead in the Hospital;
MLC of the victim (Ex. AD14) record inter alia presence of, “…
CLW 2*1*1cm over (R) side of forehead…multiple abrasions
over (R) hand…”, nature whereof was subsequently opined as
‘simple’, besides the post-mortem report of the deceased (Ex.
AD-13) inter alia records his cause of death as, “…Shock as a
result of antemortem injury to head of deceased produced by blunt
force impact. All injuries were antemortem in nature, fresh prior
to deah, produced by blunt force impact and possible in road
traffic accident…”.
35. Conclusively, in view of the above discussion, in
particular, in light of the unambiguous testimonies of PW-10/Nasir
Ali, PW-6/Master ‘A’, PW-8/Satish Kumar Sapra and PW-5/Om,
the ingredients of offence under Sections 279/337/304A IPC stand
proved against the appellant herein. Needless to reiterate, the
appellant was identified and deposed as the perpetrator of the
offence by PW-10/Nasir Ali, PW-6/Master ‘A’, PW-8/Satish
Kumar Sapra and PW-5/Om Singh in their respective depositions,
which fact was even not disputed by the appellant even under his
statement, recorded in terms of the provisions under Section
281/313 Cr.P.C. Correspondingly, as aforenoted, the rashness and
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ABHISHEK GOYAL
GOYAL Date:
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negligence in the conduct of the appellant on the date and time of
incident is manifest from the manner of accident, i.e., offending
vehicle, being a truck carrying petrol on the date of occurrence,
overtaking the accidental motorcycle from left side in a manner
that the handle of the motorcycle got stuck in the rear end of the
truck and the head of the rider of the motorcycle was crushed by
the rear right-side tyre of the truck. Correspondingly, as
aforenoted, PW-10 denied under his cross examination that on the
date of the accident, the driver of the driver of the accidental
motorcycle himself, hit the offending truck and thereafter, his
motorcycle lost balance, and he fell down on the road. Needless to
further mention, even PW-6 reiterated that the truck had come
from behind and hit their motorcycle, with the impact being such
that he/PW-6, his father/deceased and the victim/PW-7 fell down
from their motorcycle, wherein PW-7 and the deceased sustained
injuries. Needless to further reiterate that the factum of demise of
the deceased consequent to the accident as well as of the victim’s
sustaining injury due to accident is neither denied nor rebutted,
rather, stands proved from the deceased’s postmortem report as
well as the MLCs of the deceased and the victim, respectively.
Ergo, under such circumstances, this Court is in concert with the
Ld. Trial Court’s observation that the prosecution has been able to
prove its case ‘beyond reasonable doubt’ against the appellant
herein for the offences under Sections 279/337/304A IPC.
36. In so far as the aspect of sentence awarded to the
appellant is concerned, this Court deems it apposite to note that
though, the penal provisions under law/IPC, prescribe for
penalties to be imposed for offences, however, no harmonized
strategies exist for the manner and quantum of sentence which
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may be awarded to an accused in each case. In fact, law provides
for a considerable relaxation/discretion to the Courts at the time of
awarding sentence, which in the light of persistent avowals of the
superior courts11, has to be exercised, mindful of such parameters.
Indisputably, the inclination of courts is usually tilted towards
reformative and rehabilitative approach towards the accused,
however, superior court have also incessantly cautioned that
sentencing should be adequate, just, and reasonable, for exercising
undue sympathy, by imposing inadequate sentence may often
result into causing more harm to the justice system. In this regard,
reference is made to the decision of the Hon’ble Supreme Court
in Hazara Singh v. Raj Kumar, (2013) 9 SCC 516 , wherein the
Hon’ble Court observed as under;
“17. We reiterate that in operating the sentencing
system, law should adopt the corrective machinery or
deterrence based on factual matrix. The facts and
given circumstances in each case, the nature of the
crime, the manner in which it was planned and
committed, the motive for commission of the crime,
the conduct of the accused, the nature of weapons
used and all other attending circumstances are
relevant facts which would enter into the area of
consideration. We also reiterate that undue sympathy
to impose inadequate sentence would do more harm to
the justice system to undermine the public confidence
in the efficacy of law. It is the duty of every court to
award proper sentence having regard to the nature of
the offence and the manner in which it was executed
or committed. The court must not only keep in view
the rights of the victim of the crime but also the
society at large while considering the imposition of
appropriate punishment.”
(Emphasis supplied)
11
‘X’ v. State of Maharashtra, (2019) 7 SCC 1; and Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), (2014) 4
SCC 375.
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37. Similarly, the Hon’ble Supreme Court in Raju
Jagdish Paswan v. State of Maharashtra, (2019) 16 SCC 380, while
iterating the objective behind sentencing enunciated as under;
“9. The maintenance of peace, order and security
is one of the oldest functions of the civil society. The
imposition of penal sanctions on those who have
infringed the rules by which a society has bound itself
are a matter of legitimate interest to the members of
the society…Punishment is the just desert of an
offender. The society punishes not because it has the
moral right to give offenders what they deserve, but
also because punishment will yield social useful
consequences: the protection of society by
incapacitating criminals, the rehabilitation of past
offenders, or the deterrence of potential
wrongdoers…The purposes of criminal sentencing
have traditionally been said to be retribution,
deterrence and rehabilitation. To these there may now
perhaps be added: incapacitation (i.e. putting it out of
the power of the offender to commit further
offences) and the maintenance of public
confidence…”
(Emphasis supplied)
38. Apposite for the purpose of the present discourse to
further make reference to the decision of the Hon’ble Supreme
Court in State of Punjab v. Saurabh Bakshi, (2015) 5 SCC 182 ,
wherein the Hon’ble Court in akin context, noted as under;
“23. In the instant case the factum of rash and
negligent driving has been established. This Court has
been constantly noticing the increase in number of
road accidents and has also noticed how the vehicle
drivers have been totally rash and negligent . It seems
to us driving in a drunken state, in a rash and negligent
manner or driving with youthful adventurous
enthusiasm as if there are no traffic rules or no
discipline of law has come to the centre stage. The
protagonists, as we perceive, have lost all respect for
law. A man with the means has, in possibility,
graduated himself to harbour the idea that he can
escape from the substantive sentence by payment of
compensation. Neither the law nor the court that
implements the law should ever get oblivious of the
fact that in such accidents precious lives are lost or the
victims who survive are crippled for life which, in a
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way, worse then death. Such developing of notions is
a dangerous phenomenon in an orderly society.
Young age cannot be a plea to be accepted in all
circumstances. Life to the poor or the impecunious is
as worth living for as it is to the rich and the
luxuriously temperamental.
24. Needless to say, the principle of sentencing
recognizes the corrective measures but there are
occasions when the deterrence is an imperative
necessity depending upon the facts of the case. In our
opinion, it is a fit case where we are constrained to say
that the High Court has been swayed away by the
passion of mercy in applying the principle that
payment of compensation is a factor for reduction of
sentence to 24 days. It is absolutely in the realm of
misplaced sympathy. It is, in a way mockery of
justice. Because justice is “the crowning glory”, “the
sovereign mistress” and “queen of virtue” as Cicero
had said. Such a crime blights not only the lives of the
victims but of many others around them. It
ultimately shatters the faith of the public in judicial
system. In our view, the sentence of one year as
imposed by the trial Magistrate which has been
affirmed by the appellate court should be reduced to
six months.”
(Emphasis supplied)
39. Clearly, in light of the above, it is noted that besides
the resolute affirmations of the superior courts, inclined towards
the grant of just and appropriate sentence, there has also been a
cautionary word12 that mere long pendency of case is no ground to
award lesser sentence. Here, it is further pertinent to note that the
superior courts13 have also untiringly declared that payment of
victim compensation to victim cannot be a consideration/ground
for reducing the sentence imposed upon an accused. Clearly, the
rationale behind the same is that victim compensation is not a
punitive measure, rather, only meant for restitution, having no
bearing on the sentence, which has been passed as a punitive
12
State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.
13
Rajendra Bhagwanji Umraniya v. State of Gujarat, MANU/SC/0428/2024.
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measure. Correspondingly, reference is made to the decision of the
Hon’ble Apex Court in Guru Basavaraj v. State of Karnataka,
(2012) 8 SCC 734, wherein the Hon’ble Court, while accentuating
the importance of adequate sentencing and compensation, keeping
in view the interest of society and victim(ology), observed as
under;
“30. From the aforesaid authorities, it is luminous
that this Court has expressed its concern on imposition
of adequate sentence in respect of commission of
offences regard being had to the nature of the
offence and demand of the conscience of the society.
That apart, the concern has been to impose adequate
sentence for the offence punishable under Section
304-A of the Indian Penal Code. It is worthy to note
that in certain circumstances, the mitigating factors
have been taken into consideration but the said
aspect is dependent on the facts of each case. As the
trend of authorities would show, the proficiency in
professional driving is emphasized upon and
deviation therefrom that results in rash and negligent
driving and causes accident has been condemned. In
a motor accident, when a number of people sustain
injuries and a death occurs, it creates a stir in the
society; sense of fear prevails all around. The
negligence of one shatters the tranquility of the
collective. When such an accident occurs, it has the
effect potentiality of making victims in many a layer
and creating a concavity in the social fabric. The
agony and anguish of the affected persons, both direct
and vicarious, can have nightmarish effect. It has its
impact on the society and the impact is felt more when
accidents take place quite often because of rash
driving by drunken, negligent or, for that matter,
adventurous drivers who have, in a way, no concern
for others. Be it noted, grant of compensation under
the provisions of the Motor Vehicles Act, 1988 is in a
different sphere altogether. Grant of compensation
under Section 357(3) with a direction that the same
should be paid to the person who has suffered any loss
or injury by reason of the act for which the accused
has been sentenced has a different contour and the
same is not to be regarded as a substitute in all
circumstances for adequate sentence.
31. Recently, this Court in Rattiram and Ors. v.
State of M.P. Through Inspector of Police AIR 2012C.A. No. 499/2024 Gopal Dutt Faloriya v. State (NCT of Delhi) Page 49 of 52
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SCW 1772, though in a different context, has stated
that:
“64. criminal jurisprudence, with the passage of
time, has laid emphasis on victimology which
fundamentally is a perception of a trial from the view
point of the criminal as well as the victim. Both are
viewed in the social context. The view of the victim is
given due regard and respect in certain countries. It
is the duty of the court to see that the victim’s right is
protected.
32. We may note with profit that an appropriate
punishment works as an eye-opener for the persons
who are not careful while driving vehicles on the road
and exhibit a careless attitude possibly harbouring the
notion that they would be shown indulgence or lives
of others are like “flies to the wanton boys”. They
totally forget that the lives of many are in their hands,
and the sublimity of safety of a human being is given
an indecent burial by their rash and negligent act.”
(Emphasis supplied)
40. Ergo, in light of the foregoing principles, when the
impugned order is conscientiously scrutinized, this Court
unwaveringly observes that the Ld. Trial Court has acted quite
leniently with the appellant by awarding bare minimum sentence,
prescribed under law for the offences under Section 279/337/304A
IPC, considering the mitigating and aggravating factors. Quite
understandably, considering that the purpose of sentencing is not
only to punish the errant behavior but to also have deterrent effect
on the society, the appellant does not, in the considered opinion of
this Court, deserves any indulgence at this stage, even in the aspect
of sentence so awarded by the Ld. Trial Court for the said offence
is concerned.
41. Conclusively, in view of the above discussion, the
present appeal deserves to be rejected/dismissed and is hereby
dismissed. As a corollary, the judgment dated 27.08.2024 passed
by the Ld. JMFC-02, Central, Tis Hazari Courts, Delhi in case
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bearing, ‘State v. Gopal Dutt Faloriya, Cr. Case No. 3425/2020’,
arising out of FIR No. 294/2018, P.S. Timarpur, convicting the
appellant for the offences punishable under Sections
279/337/304A IPC and the consequent order of sentence dated
19.11.2024, in so far as it awards the appellant; simple
imprisonment for a period of 03 (three) months along with fine of
Rs. 5,000/- (Rupees Five Thousand only), in default of payment
of fine, to undergo simple imprisonment for a period of 06 (six)
months for the offence under Section 304A IPC; simple
imprisonment for a period of 03 (three) months along with fine of
Rs. 1,000/- (Rupees One Thousand only), in default of payment
of fine, to undergo simple imprisonment for a period of 01 (one)
month for the offence under Section 279 IPC; and simple
imprisonment for a period of 03 (three) months along with fine of
Rs. 500/- (Rupees Five Hundred only), in default of payment of
fine, to undergo simple imprisonment for a period of 01 (one)
month for the offence under Section 337 IPC, are hereby upheld.
However, it is clarified that the sentences shall run concurrently,
besides the appellant would be entitled to the benefit under Section
428 Cr.P.C./Section 468 Bharatiya Nagarik Suraksha Sanhita,
2023/BNSS. Correspondingly, it is directed that the fine amount
shall be released to the victim/LRs of the deceased, as
compensation. Needless to further mention that though it holds
highest regard for the decisions relied upon by the Ld. Counsel for
the appellant in support of his contentions, however, the same
would not come to the aid of the appellant, in the manner as
proposed, as the facts and circumstances of the present case are
clearly distinguishable.
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42. Trial Court Record be sent back along with a copy of
this judgment with direction to proceed as per law. Copy of this
order/judgment be also given dasti to the appellant. Further, the
appellant, Gopal Dutt Faloriya is directed to surrender before the
Ld. Trial Court within a period of ten days from today for serving
the sentence/remainder period thereof. Needless to mention that
the compliance of the decision of the Hon’ble Supreme Court in
Suhas Chakma v. Union of India, (2024) 16 SCC 1 has been
carried out.
43. Appeal file be consigned to record room after due
compliance.
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ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.04.21
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Announced in the open Court (Abhishek Goyal)
on 21.04.2026. ASJ-03, Central District,
Tis Hazari Courts, Delhi
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