Delhi District Court
State vs . Brijesh Chandra on 6 May, 2019
STATE VS. BRIJESH CHANDRA
IN THE COURT OF SH. VIJAY KUMAR JHA, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SHAHDARA), KKD COURTS DELHI.
FIR No.439/2007
PS : Anand Vihar
U/S 279/304 A IPC
State vs. Brijesh Chandra
a) ID No. of the case : 79245/2016
b) Date of Institution : 24.05.2008
c) Date of commission of offence : 26.06.2007
d) Name of complainant : Ct. Ashwani Kumar
e) Name of the accused, and : Brijesh Chandra
parentage and address S/o Sh. Kathu Lal
R/o H.No.F1/177,
Sultanpuri, Delhi
f) Offence complained of : U/S 279/304 A IPC
g) Plea of the accused : Pleaded not guilty
h) Date of judgment reserved : 06.05.2019
i) Final order : Acquittal
j) Date of such Order : 06.05.2019
JUDGEMENT
1. The case FIR was lodged on the written complaint of the complainant who happened to be the Constable Ashwini Kumar FIR NO.439/2007, PS Anand Vihar Page 1/16 STATE VS. BRIJESH CHANDRA who stated in his complaint that on July 26, 2007 he was on patrolling duty on his government motorcycle bearing registration no. DL15N4354. At about 8:50 PM the complainant reached at in front DTC bus stand near EDM mall where the complainant saw that from the red light of Gazipur Road a bus bearing registration no. DL 1PA2642, route no. 469 Blue Line the driver of which was driving the said bus at high speed, rashly and negligently and struck an unknown person who was crossing the road from the side of the bus. After the said person was struck by the bus he fell down because of which the said person received injuries on his right shoulder and ear. The complainant apprehended the bus driver by running after the bus driver who on inquiry informed his name as Brijesh Chandra (i.e. the accused in the present case) after some time the PCR vehicle came and the injured was taken to unknown hospital. On the basis of the complainant the case FIR under section 279/337 of Indian Penal Code was registered.
2. After the completion of investigation the charge sheet was filed under section 279/304A of Indian Penal Code as the injured i.e. Nathu Singh had expired. Vide order dated May 6, 2009 the notice under section 251 Code of Criminal Procedure was served upon the accused for having committed the offenses falling under section 279 and 304A of Indian Penal Code to which the accused pleaded FIR NO.439/2007, PS Anand Vihar Page 2/16 STATE VS. BRIJESH CHANDRA not guilty and claimed trial.
3. In order to bring home the charges against the accused person on behalf of the prosecution following witnesses have been examined: i. Shri Dhoori Singh as PW1 who was the brother of the deceased Nathu Singh and had identified the dead body of his brother.
ii. The complainant, Constable Ashwini has been examined as PW2.
iii. head Constable Anil Kumar as PW3 who was the duty officer at the PS Anand Vihar and had on July 26, 2007 registered the case FIR Ex. PW3/A. iv. Smt. Jayanti as PW4 who was the wife of the deceased Nathu Singh and had identified his dead body.
v. Constable Vijay as PW5 who on July 26, 2007 was the duty officer at police post Anand Vihar and had after received the information at about 9 PM regarding accident recorded the DD no. 22, exhibit PW5/A. PW5 had also received telephonic information regarding the death of the injured which was recorded by him as DD no. 2 dated July 27, 2007, exhibit PW5/B. vi. Dr. Akash Jhanjee as PW5 who had conducted the FIR NO.439/2007, PS Anand Vihar Page 3/16 STATE VS. BRIJESH CHANDRA postmortem of the deceased Nathu Singh and proved the postmortem report as Ex. PW6/A. vii. Shri Taslimuddin Siddiqui as PW7 who had conducted the mechanical inspection of the offending vehicle i.e. bus bearing registration no. DL1 PA2642 and proved his report as Ex. PW7/A. viii. SI Ravi Prakash as PW8 who on July 27, 2007 after the receipt of DD no. 2 along with IO/head Constable Harpal Singh went to SDN hospital, repair the inquest report and got the postmortem of the deceased Nathu Singh conducted.
ix. Dr. V.K. Yadav as PW9 who had prepared the initial MLC of the injured Nathu Singh, Ex. PW9/A after the injured was brought to the hospital on July 26, 2007.
x. SI Harpal Singh as PW10 who was the investigating officer in the present case and had after completion of investigation filed the charge sheet against the accused.
4. After all the witnesses of the prosecution were examined the statement of the accused was recorded under section 313 of Code of Criminal Procedure. All the incriminating facts which had come in the deposition of the witnesses of the prosecution were put to the FIR NO.439/2007, PS Anand Vihar Page 4/16 STATE VS. BRIJESH CHANDRA accused and the accused was asked for his explanation. The accused denied all the incriminating facts and stated that the accused had been falsely implicated in the present case. The accused stated that at the time of the alleged accident the accused was not driving the offending vehicle. On the date of the incident the accused had received the call at about 10 PM from Parminder Kumar (who was the owner of the offending bus) on his mobile informing the accused to collect the offending vehicle from ISBT Anand Vihar. When the accused came to ISBT Anand Vihar on the next day of the accident, in the morning the accused met investigating officer Harpal Singh who informed the accused that someone had received the injuries in the accident because of which the accused had to give his driving license and also that the accused had to sign few documents. As per the accused, the accused did not have the driving license at that time therefore the accused not give the same to the investigating officer however the accused at the instance of the investigating officer signed few documents but even after that the accused stated that the vehicle was not released to the accused. Thereafter the accused left from there along with Parminder Singh, Raman Singh who had brought the accused to the ISBT from his home. The accused has not examine any witness in his defense.
FIR NO.439/2007, PS Anand Vihar Page 5/165. I have heard the arguments and perused the record.
6. In the present case one fact regarding which there is no clarification in the entire record is that as per the case of the prosecution the accident had occurred at about 8:50 PM on July 26, 2007 (wrongly mentioned as June 26, 2007 in the notice framed under section 251 of Code of Criminal Procedure on May 6, 2009) and the case FIR Ex. PW3/A was registered 11:15 PM; the complainant Constable Ashwini Kumar had apprehended the accused at the spot but even then how can as per the arrest memo exhibit PW2/E the accused was arrested on July 27, 2007 at 12:15. There is an over writing with respect to AM or PM, however the investigating officer it is crossexamination has stated that the investigating officer had arrested the accused on the next day at about 12 noon. The prosecution has also not tried to clarify the overwriting on the arrest memo of the accused.
7. It is trite to say that the prosecution has to prove its case beyond reasonable doubt but for the acquittal what the accused has to prove is that on the balance of probability that the defense of the accused may be true.
8. The fact of the arrest of the accused at 12 Noon as per the investigating officer on July 27, 2007 is in consonance the defense as disclosed by the accused and statement recorded under section FIR NO.439/2007, PS Anand Vihar Page 6/16 STATE VS. BRIJESH CHANDRA 313 of Code of Criminal Procedure as well as the suggestions given to the investigating officer during the crossexamination.
9. The investigating officer; PW10 in his crossexamination has deposed that the investigating officer had received the DD no. 22 through wireless at about 9 PM, that when the investigating officer reached at the spot the investigating officer came to know that the PCR had already taken the injured to the hospital. The investigating officer remained at the spot for about 5 to 7 minutes and thereafter left for the hospital. The investigating officer remained in the hospital for about 10 to 15 minutes. Constable Ashwini had left the spot along with rukka at 10:15 PM and return back at the spot after about 45 minutes. The investigating officer had finally left the spot after about 12 midnight and that the accused was arrested on the next day at about 12 noon. In the entire chronology of facts as stated by the investigating officer in his crossexamination it is not clear between 12 midnight to 12 noon where the accused was? And if the accused was arrested at 12 noon on the next day of the accident then how and in what manner the accused was arrested i.e. whether the accused was put up in lockup, whether the accused was allowed to go to his home. If the accused was allowed to go then how the accused was contacted and under what authority the accused was allowed to go FIR NO.439/2007, PS Anand Vihar Page 7/16 STATE VS. BRIJESH CHANDRA home by the investigating officer.
10.One fact which is out of ordinary is an effort/manipulation made in the arrest memo of the accused exhibit PW2/E regarding the time of arrest of the accused making a serious dent in the case of the prosecution regarding the very veracity of the case of the prosecution. The court is of the opinion that the accused is entitled to be acquitted for the aforesaid reason only. However, after going through the deposition of the witnesses the court is of the opinion that on merit also the prosecution has nothing on the basis of which the accused could have been convicted for the alleged offenses.
11.One of the offenses with which the accused has been charged with is that on July 26, 2007 at about 8:50 PM at red light Anand Vihar ISBT, Road no. 56 the accused while driving the offending bus bearing registration no. DL1 PA2642 (Blue line bus on route no.
469) in rash and negligent manner hit a pedestrian namely, Nathu Singh and caused his death this committing the offense under section 304A of Indian Penal Code.
12.The gravamen of allegation under section 304A of Indian Penal Code is in the rashness or negligence in driving a vehicle. In other words doing of a rash or negligent act, which causes death, is the essence of section 304 Indian Penal Code. Under section 32, Indian Penal Code, the act includes 'illegal omission'. Therefore, if an FIR NO.439/2007, PS Anand Vihar Page 8/16 STATE VS. BRIJESH CHANDRA illegal omission occurs as a result of negligence, which results in death, then this section will apply.
13.The term; 'negligence' as used in this section does not mean mere carelessness. The rashness or negligence must be of such nature so as to be termed as a criminal act of negligence or rashness. Section 80 of the Indian Penal Code provides; 'nothing is an offence which is done by accident or misfortune and without any criminal knowledge or intention in the doing of a lawful act in a lawful manner by a lawful means and with proper care and caution'. Neither section 279 nor 304A of Indian Penal Code punishes for mere accident, misfortune or error of judgment. It is absence of such proper care and caution, which is required of a reasonable man in doing an act, which is made punishable under this section.
14.It is the degree of negligence, which really determines whether a particular act would amount to a rash and negligent act as defined under this section. It is only when the rash and negligent act is of such a degree that the risk run by the doer of the act is very high or is done with such recklessness and with total disregard and indifference to the consequences of this act, the act can be constituted as a rash and negligent act under this section. Negligence is the gross and culpable neglect or failure to exercise reasonable and proper care, and precaution to guard against injury, FIR NO.439/2007, PS Anand Vihar Page 9/16 STATE VS. BRIJESH CHANDRA either to the public generally or to an individual in particular, which a reasonable man would have adopted. (See S. N. Hussain v. State of AP AIR 1972 SC 685)
15.In order to impose criminal liability under section 304A of Indian Penal Code, it is essential to establish that death is the direct result of the rash and negligent act of the accused. It must be causa causans the immediate cause, and not enough that it may be causa sine qua non proximate cause. (Ref. Suleman Rahiman Mulam v. State of Maharashtra AIR 1968 SC 829; Ambalal D Bhatt v State of Gujarat AIR 1972 SC 1150)
16.In Balachandra Waman Pathe v. State of Maharashtra, 1968 SCD 198 the Supreme Court explained the distinction between a rash and a negligent act in the following manner: "An offence under section 304A Indian Penal Code may be committed either by doing a rash act or a negligent act. There is a distinction between a rash act and a negligent act. In the case of a rash act as observed by Straight, J. in Idu Beg's case I.L.R. 3 ALL. 776, the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence 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. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, FIR NO.439/2007, PS Anand Vihar Page 10/16 STATE VS. BRIJESH CHANDRA would do, or doing something which a prudent and reasonable man would not do. Again as explained in Nidamarti Negaghushanam's case 7 Mad. H.C.R. 119, a 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 if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection."
17.In the present case the deposition of the witnesses have to be analysed in order to find out if the bus which the accused was driving with which the accident happened and the victim died was being driven by the accused either rashly or negligently in order to fasten the liability of section 304A of Indian Penal Code.
18.In the entire array of the witnesses of the prosecution there is only one witness namely the complainant Constable Ashwini Kumar; PW2 who as per the case of the prosecution had seen the accident, the precise manner in which the accident caused in which the deceased had lost his life by the bus which was being driven by the accused as per the complaint Ex. PW2/A at high speed, rashly and negligently.
19.As already stated hereinabove for attracting section 304A of Indian Penal Code the essential things which need to be proved by the FIR NO.439/2007, PS Anand Vihar Page 11/16 STATE VS. BRIJESH CHANDRA prosecution is that the accused had either been rash or negligent in driving the bus because of which death was caused. If a person is driving a vehicle at a highspeed it may or may not amount to rashness or negligence depending upon various facts and circumstances.
20.The material part of the deposition of PW4 is that, "The driver of the above said bus was driving the bus in a rash and negligent manner and hit against a person who was standing near the above said DTC bus stand". It may be stated that the words rash and negligent are not facts rather these words express opinion which could be based only upon the facts. A person would be rash if in spite of knowing about the untoward consequences the person does or do not refrain from doing an act which are reasonable prudent act would do or refrain from doing in a particular situation. A person would be negligent if in a given fact and circumstances a person omits to take the precaution which a reasonable and prudent man would take. (See Balachandra Waman Pathe; supra). Further a witness to a fact in his deposition is supposed to depose only about the fact and the inferences on those facts are to be drawn by the court. Whether or not a person is rash or negligent is an opinion which is to be arrived at by the court and not by a wintess. If before the court witness merely deposes that the accused FIR NO.439/2007, PS Anand Vihar Page 12/16 STATE VS. BRIJESH CHANDRA was rash and negligent the said deposition cannot be used by the court for any purpose connected with the trial of any offense where the rash or negligent act is to be proved by the prosecution. In the present case the learned APP for the state realized that PW2 was supposed to depose about the facts and not about the opinion therefore the learned APP for the state asked the question to the witness which was, "How accused was rash and negligent at the time of accident on that day"? Two the said question PW2 replied, "The speed of the bus was very high and the bus driver hit bus in (sic) the person who was crossing road in front of EDM mall bus stop but I cannot tell the speed of the bus".
21.In the clarification given by PW2 as to the manner in which the accused was rash and negligent the accused has stated the fact that at the time of the accident the accused was crossing the road which is the case of the prosecution as per the complaint exhibit PW2/A on the basis of which the case FIR was registered. As per the site plan Ex. PW10/B no zebra crossing has been shown using which the deceased could have crossed the road if the deceased was actually crossing the road. Further, as per the MLC of the deceased Ex. PW9/A smell of alcohol was present indicating that the deceased might have been negligent in crossing the road. Though in case of criminal offense contributing negligence does not FIR NO.439/2007, PS Anand Vihar Page 13/16 STATE VS. BRIJESH CHANDRA exculpate the accused for the offense under section 304A of Indian Penal Code however the negligence of the deceased might be determinative in coming to know whether because of the negligence of the deceased the accident became inevitable or not i.e. even after taking into consideration the negligence of the deceased the accused could not have avoided the accident.
22.In the present case there is no crossexamination on this aspect because the primary defense of the accused is that the accused at the time of the accident was not driving the vehicle therefore nothing on this aspect can be said. Be that as it may, as per the deposition of the complainant; PW2 the reason that the accused was driving the offending bus at high speed the accused was rash and negligent. However, the Hon. Supreme Court in State of Karnataka v. Satish, 1998 SCC (Crl.) 1508 has observed that driving at a highspeed by itself does not imply negligence or rashness. Negligence or rashness would have to be established as a fact. The Hon. Delhi High Court in Abdul Subhan v. State (NCT) 2007(1) R.C.R.(Criminal) 260 has observed that the expression highspeed could range from 30 km to over 100 km per hour and that the perception of the speed differs from person to person. It is rather surprising that if the complainant; PW2 could not say as to the approximate speed of the bus at the time when the alleged FIR NO.439/2007, PS Anand Vihar Page 14/16 STATE VS. BRIJESH CHANDRA accident occurred in which the deceased Nathu Singh lost his life then on what basis PW2 could have said that the speed of the bus was very high.
23.From the deposition of PW2 and the case of the prosecution it is not clear that the accused was rash and negligent because of the fact that the accused was driving the offending Bus at high speed or because of some other reasons. High speed solely cannot be the indication of rashness or negligence in driving a vehicle as discussed herein above and therefore the accused is entitled for his acquittal. But if with the allegation that the accused was driving the offending vehicle rashly and negligently something else was meant then it could be said that whether a person is rash or negligent in any given situation is not a fact but it is an opinion or the state of the mind of the person who observes a person who is allegedly rash and negligent in doing any act alike in the present case driving the offending vehicle with which the fatal accident had occurred.
24.It is the duty of the prosecution to put before the court all the material facts with respect to an alleged offense and it is the court which has to draw the opinion on the basis of facts as proved by the prosecution whether or not there the charges against the accused person is under section 279/304 Indian Penal Code is made out and not. If only the opinion is served to the court like the accused was FIR NO.439/2007, PS Anand Vihar Page 15/16 STATE VS. BRIJESH CHANDRA rash and/or negligent and that the accused was driving the vehicle at high speed, then it is as good as prosecution proving nothing.
25.In view of aforesaid discussion the accused is hereby acquitted not only for the offense under section 304A of Indian Penal Code but also for the offense under section 279 Indian Penal Code as the material ingredients of both offenses are the same which the prosecution has failed to prove beyond reasonable doubt. Accordingly the accused is hereby acquitted for the offences as Digitally signed by charged. VIJAY VIJAY KUMAR JHA KUMAR JHA Date: 2019.05.13 16:44:32 +0530 Dictated & Announced in the Open Court (VIJAY KUMAR JHA) on 06.05.2019 Additional Chief Metropolitan Magistrate Shahdara Distt., KKD Courts, Delhi FIR NO.439/2007, PS Anand Vihar Page 16/16