Delhi District Court
State vs . Mukambar Singh on 20 September, 2011
1
IN THE COURT OF MS. CHETNA SINGH:MM08(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Mukambar Singh
FIR No.243/2010
U/s : 279/304A IPC
P.S. : Neb Sarai
JUDGMENT
1.FIR No. : 243/2010
2.Date of the Commission of the offence : 07.09.2010
3.Name of the accused : Mukambar Singh S/o
Sh. Kumer Singh R/o
J544, Dakshin Puri,
New Delhi.
4.Name of the complainant : Sh. Mahesh Sharma S/o
Sh. Babu Ram Sharma
R/o D1/260, Kalu
Mohalla, Sangam Vihar,
New Delhi.
5.Offence complained of : 279/304A IPC
6.Plea of accused : Pleaded not guilty
FIR No243/2010 State Vs. Mukambar Singh Under Section 279/304A IPC
2
7.Final order : Acquittal
8.Date of final order : 20.09.2011
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
The story of the prosecution is that on 07.09.2010 at 03:10 p.m at IGNOU Road in front of Earth Water Group Company, Freedom Fighter Colony, New Delhi, falling within the jurisdiction of Police Station Neb Sarai, the accused Mukambar Singh was driving the bus bearing number DL1PB2339 in a rash and negligent manner and while driving the said vehicle in such a manner, the accused hit against motorcyclist from its back and caused death of its rider namely Manik Chauhan S/o Sh. Ved Prakash Chauhan and therefore, committed offences punishable under section 279/304A IPC.
On the basis of the said facts, an FIR bearing number 243/2010 under section 279/304A IPC was lodged at Police Station Neb Sarai on 07.09.2010 at 05:45 p.m. After investigation, chargesheet under section 173 Cr.P.C was filed.
On the basis of the chargesheet, a charge for the offences punishable under section 279/304A IPC was framed against the accused FIR No243/2010 State Vs. Mukambar Singh Under Section 279/304A IPC 3 Mukambar Singh and read out to the said accused person, to which the accused person pleaded not guilty and claimed trial on 10.02.2010.
JUDICIAL PRONOUNCEMENT To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows: (1)That the accident actually took place.
(2)That the accident took place due to rash and negligent driving.
(3)That the accused was the person who was driving the vehicle at the relevant time.
These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Blacks Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
Quoting from the article "Negligence, Mens Rea and Criminal FIR No243/2010 State Vs. Mukambar Singh Under Section 279/304A IPC 4 Responsibility" by H.L.A.Hart in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently.
"[A] careful consideration is needed of the difference between the meaning of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The word 'negligently', both in legal and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash'as doing something that may not be sensible without first thinking about FIR No243/2010 State Vs. Mukambar Singh Under Section 279/304A IPC 5 the possible results.
Elaborating further, in State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while deal ing with the meaning of the expression " rashness " and " negligence " held as follows :
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a indi vidual."
The court would also like to refer to a very recent judgment of the Honorable Supreme Court of India elaborating further the requirements of section 304A of IPC. Quoting from Rathnashalvan v. State of Karnataka, (SC) 2007 A.I.R. (SC) 1064.
"Section 304A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability FIR No243/2010 State Vs. Mukambar Singh Under Section 279/304A IPC 6 will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304A. 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 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.
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 conse quences. 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 gen erally or to an individual in particular, which, having regard to all the FIR No243/2010 State Vs. Mukambar Singh Under Section 279/304A IPC 7 circumstances out of which the charge has arisen it was the imper ative duty of the accused person to have adopted.
8. The distinction has been very aptly pointed out by Holloway, J. in these words :
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection." (See In Re : Nidamorti Nagabhusanam 7 Mad. HCR 119)".
To prove the above said allegations against the accused, the prosecution has examined following witnesses: PW1 Smt. Shefali Chaturvedi took the injured to Vidya Sagar Hospital. She stated that she did not remember the number of the bus. She FIR No243/2010 State Vs. Mukambar Singh Under Section 279/304A IPC 8 further stated that on the same day, i.e, on 07.09.2010 at about 03:00 p.m., her statement was recorded under section 161 Cr.P.C.
PW3 ASI Shyamvir Singh in his examinationinchief has stated that on 07.09.2010 he was posted as ASI at Police Station Neb Sarai and on that day on receiving of DD No.11A, he along with Const. Vinod and HC Niranjan reached at the spot, i.e, IGNOU Road in front of Earth Water Group, where he found a bus bearing number DL1PB2339 and a motorcycle bearing number DL3SBE7675 in accidental condition. He further stated that after enquiry it was revealed that injured was shifted to the hospital. The driver of the offending vehicle namely Mukambar Singh was apprehended by the public person. The said witness took the photographs of the spot vide Ex.P1 to P8. The said witness further stated that he interrogated the eye witness Mahesh and recorded his statement. Thereafter, he prepared the inquest paper and handed it over to Const. Vinod. He prepared rukka vide Ex.PW3/A. He prepared site plan at the instance of eye witness Mahesh vide Ex.PW2/B. He seized both the vehicles bearing number DL1PB2339 and motorcycle bearing number DL3SBE7675 and same are Ex.PW2/C and D. Accused was arrested and his personal search was conducted vide Ex.PW2/E and F. He had also seized the original deal of the accused and photocopy of the offending bus vide Ex.PW2/G and H. Seized articles were deposited with malkhana. He got conducted the FIR No243/2010 State Vs. Mukambar Singh Under Section 279/304A IPC 9 postmortem of the deceased and he had also conducted the mechanical inspection of both the vehicles. Thereafter, he recorded the statement of the witnesses under section 161 Cr.P.C.
The said witness was crossexamined by Ld. Counsel for the accused, but nothing material is found in his cross.
The above said two witnesses, examined by the prosecution, are only formal witnesses. The only witness who could prove the story of the prosecution is the eye witness/complainant himself namely PW2 Sh. Mahesh Sharma who in his examination in chief has stated that on 07.09.2010 he was sitting outside the gate of his office and all of a sudden, he heard noise of hitting and when he looked, he saw that around 56 steps away the deceased and his motorcycle were lying on the road in opposite directions. The deceased person's helmet was under the back side tyre of the bus towards the conductor side. He further stated that his another official colleague, who was also present there, got blood stains on his uniform. Thereafter, public persons gathered at the spot and the driver of the offending bus, being the accused Mukambar Singh, was apprehended by the public persons. He further stated that the offending vehicle and the vehicle of the deceased were coming from the same directions on the road. He further deposed that one day Smt. Shefali Chaturvedi with the help of public persons carried the injured to the hospital. Police had prepared the site FIR No243/2010 State Vs. Mukambar Singh Under Section 279/304A IPC 10 plan in his presence. He further stated that he did not remember the number of the bus and the motorcycle. He further stated that he had given oral complaint about the incident to the police on 07.09.2010 and same is Ex.PW2/A. The said witness was crossexamined by Ld. Counsel for the accused, wherein he admitted that he did not see the driver driving the bus and he saw the accused after he was apprehended by the public persons. He denied the suggestion of Ld. Counsel for the accused that accused was not arrested in his presence. He further denied the suggestion of Ld. Defence Counsel that he was not present at the spot and he was deposing falsely at the instance of the IO.
After all the witnesses have been examined by the prosecution, statement of accused under section 313 Cr.P.C was recorded. Accused in his statement stated that he has been falsely implicated in the present case.
The allegations of the prosecution against the accused are that the accused Mukambar Singh was driving the bus bearing number DL1PB2339 in a rash and negligent manner and while driving the said vehicle in such a manner, the accused hit against motorcyclist from its back and caused death of its rider namely Manik Chauhan S/o Sh. Ved Prakash Chauhan and therefore, committed offences punishable under section 279/304A IPC.
In order to prove the allegation that the accused has caused FIR No243/2010 State Vs. Mukambar Singh Under Section 279/304A IPC 11 accident and and caused death of rider namely Manik Chauhan S/o Sh. Ved Prakash Chauhan, the prosecution has to prove the rash and negligent driving of the accused.
In the present matter, the prosecution has examined three witnesses. Out of three witnesses, PW2 Sh. Mahesh Singh Sharma is the complainant/eye witness himself. The said witness has admitted that the accident had happened, but has failed to state the rash and negligent driving of the accused. The said witness stated that he did not see the accused driving the offending bus.
It is noteworthy to mention here that the said witness in his complaint made to the police has stated that due to rash and negligent driving of the accused, the accident took place. However, in his examinationinchief the said witness has not stated the rash and negligent act of the accused.
In the present case, except PW2 Sh. Mahesh Singh Sharma, no other witness is competent to prove the guilt of the accused. The prosecution has failed to prove the guilt of the accused and the eye witness, who has been examined by the prosecution, has not supported the story of the prosecution.
In view of the deposition of PW2 Sh. Mahesh Singh Sharma, it is impossible for the prosecution to bring home the guilt of the accused by relying upon the deposition of remaining formal witnesses. The prosecution has failed FIR No243/2010 State Vs. Mukambar Singh Under Section 279/304A IPC 12 to prove through the oral testimony of the complainant/eye witness that the accused was driving the vehicle on the date of accident in a rash and negligent manner and thereby caused death of the deceased, which is the most important ingredient to attract offences punishable under section 279/304A of the IPC.
The prosecution has not been able to prove that the offending vehicle was being driven by the accused at the time of accident and in absence of such proof, the offences punishable under section 279/304A of the IPC do not stand proved against the accused.
As nothing incriminating is found against the accused, accused Mukambar Singh is hereby acquitted.
Be put up for furnishing of fresh bail bonds under section 437A Cr.P.C on 21.09.2011 at 02:00 p.m. ANNOUNCED ON 20.09.2011 (CHETNA SINGH) MM08(South)/20.09.2011 Certified that this judgment contains 12 pages and each page bears my signatures.
(CHETNA SINGH) MM08(South)/20.09.2011 FIR No243/2010 State Vs. Mukambar Singh Under Section 279/304A IPC