Delhi District Court
Bijender Kumar vs State on 27 March, 2024
IN THE COURT OF SH. ABHISHEK GOYAL,
ADDITIONAL SESSIONS JUDGE-03, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
Criminal Appeal No.: 55006/2016
CNR No.: DLCT01-013926-2016
BIJENDER KUMAR,
S/o. Late Shri. Ram Kishan,
R/o. Village Bhainsrawali,
Tehsil Ballabhgarh,
Dist. Faridabad, Haryana ... APPELLANT
Versus
STATE (NCT OF DELHI) ... RESPONDENT
Date of Institution : 06.10.2016
Date when judgment was reserved : 26.02.2024
Date when judgment is pronounced : 27.03.2024
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.') against the judgment dated 05.01.2016 (hereinafter referred to as 'impugned judgment'), convicting the appellant for the offences punishable under Sections 279/304A of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), passed by the learned Metropolitan Magistrate/Ld. MM-06, Central, Tis Hazari Courts, Delhi ('Trial Court/MM Court' for short) in case bearing "State v. Bijender Kumar", arising out of FIR No. 147/2009, P.S. Civil Lines and the consequent order of sentence dated 06.09.2016 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court, awarding the appellant; simple imprisonment for a period of 04 (four) months along with C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 1 of 27 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.03.27 16:45:44 +0530 fine of Rs. 1,000/- (Rupees One Thousand only), in default of payment of fine, to undergo simple imprisonment for a period of 10 (ten) days for the offence under Section 279 IPC; and rigorous imprisonment for a period of 01 (one) year along with fine of Rs.
9,000/- (Rupees Nine Thousand only), in default of payment of fine, he is further sentenced to undergo simple imprisonment for a period of 01 (one) month for the offence under Section 304A IPC, sentences to run concurrently (hereinafter impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order'). Further, the said fine amount of Rs. 10,000/- (Rupees Ten Thousand only) was directed to be paid by the appellant to the legal heirs of the appellant, as compensation.
2. Laconically, the case of the prosecution against the appellant is that on that on 01.10.2009, at about 07:20 p.m., at Outer Ring Road, near Hanuman Mandir, Majnu ka Tila, Delhi, the appellant was found driving bus bearing registration No. HR- 38P-1652 (hereinafter referred to as the 'offending vehicle') in a rash and negligent manner, so as to endanger human life and personal safety of other and while so driving the said bus in the aforesaid manner, struck against motorcycle bearing No. DL- 4SAD-4046 and caused the death of Ibrahim (hereinafter referred to as the 'deceased'). Pertinently, under such facts and circumstances, FIR in question was registered on the complaint of ASI Kishan Singh (hereinafter referred to as the 'complainant') and upon the investigation that ensued, chargesheet was filed by the concerned investigating officer before the Ld. Trial Court for the said offences under Sections 279/304A IPC. Notably, consequent upon Ld. Trial Court's C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 2 of 27 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.03.27 16:45:54 +0530 taking cognizance of the offence on 10.02.2010, notice in terms of the provisions under Section 251 Cr.P.C. for the offences under Sections 279/304A IPC was framed against the appellant on 30.08.2010 and the trial commenced. During the course of trial, prosecution examined nine witnesses. Subsequently, on conclusion of prosecution evidence, recording of statement of the appellant under Section 313 Cr.P.C., as well as 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 279/304A IPC, sentenced him in the manner, as noted hereinabove.
3. Learned Counsel for the appellant vehemently 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 outrightly submitted that the impugned judgment and order, passed by the Ld. Trial Court, are against all cannons of law and facts of the case, as well as in gross contravention of the principles of natural justice. Further, as per the Ld. Counsel, the Ld. Trial Court did not appreciate the facts of the present case as well as failed to consider that the prosecution was unable to prove its case beyond reasonable doubt, while passing the said judgment/order. It was further submitted that the Ld. Trial Court failed to appreciate that in the instant case, there are numerous yawning 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. It was further submitted that a perusal of the testimony(ies) C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 3 of 27 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.03.27 16:46:02 +0530 of the various witnesses, 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. Further as per the Ld. Counsel, the Ld. Trial Court failed to appreciate the fact that as per PW-5 HC Harbir Singh, the 'so called eyewitness' PW-4 Ramesh Kumar was present on the spot at around 07:40 p.m., despite which the FIR was registered on the basis of DD No. 33PP, affirming therein that no eyewitness was present on the spot, when the IO along with Ct. Harbir are stated to have reached the spot. In this regard, Ld. Counsel vehemently contended that had PW-4 Ramesh been present at the spot, as contended by the prosecution, there was no reason that the FIR would have not been registered on his statement, clearly, belying the case of the prosecution on one hand, as well as making the presence of PW-4 Ramesh on the spot at relevant point in time, doubtful, on the other (hand). Even otherwise, even under the documents, which were sent to the concerned hospital, there is no mention of the name/presence of PW-4 Ramesh Kumar. Without prejudice to the same, as per the Ld. Counsel, even considering the statement of PW-4 Ramesh Kumar to be correct/reliable, no guilt of the appellant could have been established, beyond reasonable doubt. Further, as per the Ld. Counsel, the testimony(ies) of PW-5 and PW-9 are replete with contradictions and material improvements, which do not inspire any confidence and in no case, sufficient to attribute any liability/culpability on the appellant herein.
4. Learned Counsel further contended that the Ld. Trial C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 4 of 27 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.03.27 16:46:13 +0530 Court convicted the appellant, without appreciating that the prosecution failed to prove that the offending vehicle was being driven in a rash and negligent manner. Further, as per the Ld. Counsel, as per the settled law, in order to attribute criminal liability under 279/304A IPC, rashness or negligence on the part of an accused is required to be unambiguously proved, which the prosecution has failed to do in the present case. In this regard, it was further submitted that PW-4, in his testimony before the court inter alia deposed that the motorcyclist lost control over his bike and came into the back side wheel of the offending vehicle. Clearly, as per the Ld. Counsel, such statement/deposition was grossly insufficient to attribute rashness and/or negligence on the appellant, as has been erroneously done by the Ld. Trial Court. Ld. Counsel further fervently reiterated that, even otherwise, there is not a single statement/deposition of any of the witnesses, ascribing rashness and/or negligence on the appellant, besides none of the witnesses have even whispered that the motorcycle in question hit the front side of the offending vehicle, exemplifying that the appellant was at no fault/omission, as mistakenly presumed by the Ld. Trial Court. Further, as per the Ld. Counsel, it was not within the domain/jurisdiction of the Ld. Trial Court to presume rashness/negligence in the instant case merely for the reason of alleged high speed or the offending vehicle halting at a distance, in the absence of any skid marks and/or corroborative material/evidence to prove relevant mens rea in the instant case. Accordingly, 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 C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 5 of 27 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.03.27 16:46:22 +0530 the appellant guilty of the aforementioned offences. 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; Jagdish v. State of Haryana, AIR 2019 SC 3696; State of Rajasthan v. Bhola Singh, AIR 1994 SC 542; Abdul Subhan v. State (NCT of Delhi), 2006 SCC OnLine Del 1132; Mohan Shyam v. State (NCT of Delhi), 2012 SCC OnLine Del 3053 and K. Srinivas v. State of Karnataka, 2002 SCC OnLine Kar 708. Relevant to observe at this stage that, though, under the present appeal, the Ld. Counsel for the appellant had also additionally sought to challenge the impugned judgment and order on the ground that the investigating officer and the complainant in the present case were the same persons, placing reliance on the decision of the Hon'ble Supreme Court in Mohan Lal v. State of Punjab, (2018) 17 SCC 627. However, considering that the said decision was subsequently overruled of the Hon'ble Supreme Court in Mukesh Singh v. State (NCT of Delhi), (2020) 10 SCC 120, Ld. Counsel did not press this ground during the arguments and voluntarily dropped the same.
5. 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 testimony of the eyewitness/PW-4 has not only been consistent, rather, unblemished as well as lucidly points towards the only inference of guilt of the appellant. In this regard, it was submitted by the Ld. Addl. PP for the State that it is settled law that conviction can C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 6 of 27 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.03.27 16:46:29 +0530 be based on the sole testimony of a witness if it inspires confidence, which in the instant case is sufficiently established from the unwavering testimony of the said eyewitness/PW-4. 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. Further, as per the Ld. Addl. PP for the State, there was no omission of fault on the part of the deceased in the instant case and even otherwise, it was submitted, the concept of contributory negligence has no role under criminal 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.
6. 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, thoroughly perused.
7. Before proceeding further with the appreciation of the merits of this case, this Court deems it pertinent to reproduce the relevant provisions under law, for the purpose of present adjudication, 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.
*** *** *** 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 C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 7 of 27 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.03.27 16:46:35 +0530 description for a term which may extend to two years, or with fine, or with both."
(Emphasis supplied)
8. Relevantly, from a perusal of the aforesaid provisions it is observed that the essential ingredients 1 to constitute an offence punishable under Section 279 IPC inter alia are that there must be, "rash and negligent driving or riding on a public way and the act must be so as to endanger human life or be likely to cause hurt or injury to any person." 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 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 or culpable homicide not amounting to murder. To bring an offence within the ambit of Section 304A, the prosecution is required to bring on 1 Vinod Kumar v. State, 2011 SCC OnLine Del 4347.C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 8 of 27 Digitally signed by ABHISHEK
ABHISHEK GOYAL Date: GOYAL 2024.03.27 16:46:42 +0530 record that the act was done by an accused and the death was caused due to rash and negligent act."
(Emphasis supplied)
9. Similarly, the Hon'ble High Court of Delhi in Narender v. State (Govt. of NCT of Delhi), 2021 SCC OnLine Del 4729, while iterating the basic ingredients, constituting culpability under the provisions of Sections 279/304A IPC inter alia, recorded as under;
"12. In order to constitute an offence punishable under Section 279 IPC, the following ingredients must be made out:-
i) there must be rash or negligent driving or riding;
ii) it must be on a public way; &
iii) the driving or riding must be in a manner so rash or negligent so as to endanger human life or to be likely to cause hurt or injury to any person other than the driver.
13. Similarly, to constitute an offence punishable under Section 304A IPC, it is necessary that the element of 'rash or negligent act' is established. In addition-
i) there must be death of the person in question;
ii) the accused must have caused such death; and
iii) the act of the accused must have been rash or negligent, though not amounting to culpable homicide."
(Emphasis supplied)
10. Quite evidently, in order to sustain conviction under the provisions under Section 279 and Section 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. Demonstrably, rashness or negligence is one of the key ingredients as well as common 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 C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 9 of 27 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.03.27 16:46:48 +0530 decision of the Hon'ble Supreme Court in Rathnashalvan v. State of Karnataka, (2007) 3 SCC 474, wherein the Hon'ble Court, while expounding 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 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)
11. Analogously, the Hon'ble Apex Court, earlier in S.N. Hussain v. State of A.P., (1972) 3 SCC 18, while broaching the meaning/connotation of culpable rashness and culpable negligence, noted as under;
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"7. ...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. Ergo, it is quite intelligible2 that negligence is the breach of a duty caused by omission to do something which a 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 law3, "Negligence is the genus, of which rashness is the species." Further, rashness consists4 in overhasty act, with the criminality lying 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 IPC5, negligence indicates a conduct, "which falls below the standard established for the protection of others against unreasonable risk of harm...", in contrast, '"reckless" means "careless", regardless or heedless of the possible harmful consequences of one's acts. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent 2 Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284. 3 Prabhakaran v. State of Kerala, (2007) 14 SCC 269. 4 Mohd. Aynuddin v. State of A.P., (2000) 7 SCC 72. 5 Naresh Giri v. State of M.P., (2008) 1 SCC 791 and Jayprakash Laxman Tambe v. State of Maharashtra, 2003 SCC OnLine Bom 1176.
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to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless deciding to ignore it..."
13. Therefore, being wary of the principles hereinunder noted, this Court would now appreciate the evidence and material placed on record. At the outset, it is pertinent to refer to the deposition/testimony of Sh. Ramesh Kumar/PW-4, before the Ld. Trial Court, who deposed about the incident in question. As per Sh. Ramesh Kumar/PW-4, in the year, 2009, in between 07:00 p.m. to 07:30 p.m., while he/PW-4 was returning to his house on his motorcycle via Ring Road, one motorcycle was moving ahead of him, and one Haryana Roadways bus bearing no. 1652 was also moving behind them. As per PW-4, the said motorcyclist lost control on the bike, i.e., dagmaga gaya, and came into the back side wheel of the said Haryana Roadways bus. Further, as per PW-4, the said motorcyclist expired on the spot. Significantly, PW-4 identified the appellant as the person who was driving the said Haryana Roadways bus at relevant point in time, who did not stop the bus and after some distance, the bus was stopped. PW-4 further asserted before the Ld. Trial Court that some public persons came to the spot and apprehended the appellant as well as police completed all the enquires at the spot. It has further been stated by PW-4 in his testimony before the Ld. Trial Court that the police also recorded his statement at the spot and subsequently, PW-4 returned to his home.
14. Relevantly, in his cross examination by the Ld. Addl.
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PP for the State before the Ld. Trial Court, Sh. Ramesh Kumar/PW-4 inter alia affirmed that the date of incident was 01.10.2009 and that the registration number of the offending vehicle was HR-38P-1652, being in blue colour. Further, as per PW-4, the said vehicle/offending vehicle was avowed by PW-4 to be driven by the appellant, "in a high speed and in rash and negligent manner" as well as stated to have overtaken from PW- 4's side. Strikingly, PW-4 in his said cross examination denied the suggestion that the offending vehicle had hit a motorcycle of Kawasaki make from its left side as well as further denied the suggestion that the appellant tried to run away from the spot with the bus. Further, though, PW-4 affirmed that the appellant was apprehended on the spot, however, pleaded ignorance as to upon whose fault, incident in question had occurred. Notably, in his cross examination by the Ld. Counsel for the appellant before the Ld. Trial Court, PW-4 affirmed that he was present at the spot at around 11:00 p.m., whereas at a different place, asserted that he had reached the police post at 08:00 p.m. and stayed there till 11:00 p.m. Further, PW-4 declared that the offending vehicle had stopped/halted at a distance of around 50-60 feet from the place/spot of incident and denied the suggestion regarding his not being present at the relevant point in time as well as further denied that the number of the offending vehicle was informed to him by the concerned IO.
15. Germane for the purposes of the present discourse to make a reference to the testimony of PW-3/Sh. Sabir Khan, who deposed in his testimony before the Ld. Trial Court that in response to the receipt of notice under Section 133 of the Motor Vehicle Act, 1988/MV Act, he/PW-3 had handed over the attested C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 13 of 27 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.03.27 16:47:14 +0530 copy of registration certificate; passing fees certificate; insurance; duty slip of the appellant, as well as the authority letter (Ex. PW3/A to Ex. PW3/G). Further, PW-3, as per records correctly identified the appellant in court as well as asserted the appellant to be on duty at the time of accident of the offending vehicle. Similarly, PW-6/Sh. Tulsi Ram, Duty Clerk, Ballabhgarh Depot (posted at relevant point in time), Haryana, produced the original duty register of 01.10.2009, as per which, the appellant was demonstrated to be working as driver of the offending vehicle. Patently, from the said duty register (OSR before Ld. Trial Court), Ex. PW3/G (also Ex. PW6/A), as well as the testimonies of said witnesses PW-3/Sh. Sabir Khan and PW-6/Sh. Tulsi Ram, the appellant has been affirmed as the driver of the offending vehicle at relevant point of time. Further, relevantly, PW-7/Dr. Akash Jhanjee, Specialist Forensic Medicine, Subzi Mandi Mortuary, Delhi in his deposition before the Ld. Trial Court affirmed that on 02.10.2009, while being posted at Junior Specialist Forensic Medicine in Aruna Asaf Ali Hospital, he had conducted the post-mortem on the body of the deceased, Ibrahim vide post-mortem report no. 1802/2009 (Ex. PW7/A), opining the cause of death as cranio-cerebral damage consequent upon crush injuries of head and face region. Further, all the injuries were opined to be antemortem in nature. Here it is further pertinent to refer to the testimonies/depositions of PW-1/Mohd. Anwar, brother of the deceased, who identified the deceased/body of deceased as (that of) Ibrahim, vide body identification memo Ex. PW1/A.
16. Before proceeding further with the appreciation of the aforenoted testimonies of the prosecution witnesses, it would C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 14 of 27 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.03.27 16:47:21 +0530 be relevant to deal the objection of the Ld. Counsel for the appellant, inter alia, to the effect that the conviction of the appellant could not have been premised on the testimony of PW- 4/Sh. Ramesh Kumar along. However, the said contention on the aspect of general principles of law does not find merit with this court. Nevertheless, in the instant case, whether the conviction of the appellant could have been premised on the testimony of PW4 is another aspect, dealt with hereinunder. Apposite for the purpose of present discourse on the aspect of said submission of the Ld. Counsel for the appellant on law/legal aspect, it is relevant to outrightly observe, on a general principle of law 6, that there is no legal hurdle in convicting a person on the testimony of a single/sole eyewitness if his version is clear and reliable as well as the one, inspiring confidence, for the principle of law/rule of evidence is that the evidence has to be weighed and not counted. Relevantly, in this regard, the Hon'ble Supreme Court in Sunil Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367, noted as under;
"9. Vadivelu Thevar case [AIR 1957 SC 614: 1957 Cri LJ 1000] was referred to with approval in the case of Jagdish Prasad v. State of M.P. [1995 SCC (Cri) 160: AIR 1994 SC 1251] This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The 6 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
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test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
(Emphasis supplied)
17. Consequently, keeping the aforesaid principle of law in mind, when the testimonies of the witnesses brought on record, in particular that of PW-3/Sh. Sabir Khan, PW-6/Sh. Tulsi Ram, PW-5/HC Harbir Singh and PW-9/Retd. SI Kishan Singh are considered in conjunction, the appellant's presence at the spot of incident and being the driver of the offending vehicle in question stands affirmed. Pertinently, nothing material is forthcoming from the cross examination of the said witnesses so as to rebut the factum of appellant's presence on the spot of incident as well as being the driver of the offending vehicle. In fact, even the appellant in his statement under Section 313 Cr.P.C., inter alia, asserted, "...I was driving my bus in a vigilant manner and at a normal speed. The deceased motorcyclist was driving his motorcycle in a rash and negligent manner. Due to his rash and negligence driving he fell down on the road and received injuries and died at the spot itself. It was the deceased himself who was at fault." Quite evidently, in light of the foregoing, this Court finds itself difficult to be convinced with the submission of the Ld. Counsel for the appellant that he was neither present nor driving the offending vehicle as contended by the Ld. Counsel for the appellant. Further, from the testimony of PW-7/Dr. Akash Jhanjee, the possibility of the accident in question being the cause of deceased's demise cannot be ruled out.
18. However, notwithstanding the foregoing, it is relevant at this stage to determine/ascertain, whether the C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 16 of 27 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.03.27 16:47:34 +0530 prosecution in the instant case has been able to discharge its burden of proving the requisite culpable mens rea on the part of the appellant, without which, no culpability can be attributed to the appellant. In fact, it is a settled law 7 that rashness/negligence cannot be presumed in a particular case, rather, onus is heavy upon the prosecution to prove rash and negligent driving to attribute/bring home criminal charges against an accused. Needless to mention that the onus in this regard vests primarily on the prosecution to prove the necessary culpability on an accused, 'beyond reasonable doubt' and it is only upon the prosecution establishing a foundation of its case, can an accused be expected to rebut the same by 'preponderance of probability' or by proving general defence. It is trite law8, "it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused".
19. Accordingly, in order to determine the aforesaid aspect, it is apposite to reiterate and scrutinize the testimony of Sh. Ramesh Kumar/PW-4. However, before proceeding with the same, this Court deems it pertinent to note that it is not oblivious to the fact that there do appear to be serious inconsistencies in the testimonies of Sh. Ramesh Kumar/PW-4, PW-5/HC Harbir Singh and PW-9/Retd. SI Kishan Singh as to the time, when Sh. Ramesh Kumar/PW-4 had met with the said police officials at the spot. Astoundingly, while PW-5/HC Harbir Singh in his cross examination, asserted in his deposition that he and SI Kishan 7 State of H.P. v. Baishakhi Ram, 2019 SCC OnLine HP 911 8 State of Punjab v. Kewal Krishan, 2023 SCC OnLine SC 746; and Sawal Das v. State of Bihar, (1974) 4 SCC 193.
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('met us') met with Sh. Ramesh Kumar/PW-4 at around 07:40 p.m. on the spot, however, PW-9/Retd. SI Kishan Singh in his cross examination asserted that he met with Sh. Ramesh Kumar/PW-4 at 09:15 p.m. Needless to mention that, as aforenoted, same is in variance with the testimony of Sh. Ramesh Kumar/PW-4, who asserted that he had gone to police post at 08:00 p.m., and stayed there till 11:00 p.m., on the said date. Accordingly, under such circumstances, the contention of the Ld. Counsel for the appellant regarding the existence of inconsistencies in the testimonies of the prosecution witnesses as well as doubt on the presence of Sh. Ramesh Kumar/PW-4 at the spot of incident does attain some weight. However, without prejudice to the same, if the testimony of Sh. Ramesh Kumar/PW-4 is carefully evaluated, it is observed that the said witness in his deposition before the Ld. Trial Court has inter alia affirmed that the offending vehicle was being driver at a high speed, in a rash and negligent manner and had overtaken from PW-4's side on the date of the incident and that the deceased lost control of his motorcycle, i.e., dagmaga gaya and came under the back side wheel of the offending vehicle. Undoubtedly, on a conscientiously evaluation of the evidence of Sh. Ramesh Kumar/PW-4, the only thing which forthcoming from the same is that the deceased lost control of his motorcycle and came under the rear end/back side wheel of the offending vehicle. However, nowhere in his testimony before the Ld. Trial Court, has the said witness/PW-4 deposed that the offending vehicle had hit the deceased's motorcycle and/or had knowingly run over the deceased after he had fallen on ground. In fact, as aforenoted, Sh. Ramesh Kumar/PW-4 asserted that the deceased lost control of C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 18 of 27 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2024.03.27 16:47:48 +0530 his bike, i.e., dagmaga gaya and came into the back side wheel of the offending vehicle. Further, Sh. Ramesh Kumar/PW-4 in his cross examination by the Ld. Addl. PP for the State before the Ld. Trial Court, explicitly denied the suggestion that the offending vehicle had hit the deceased's motorcycle and further denied that the appellant tried to run away from the spot with the bus, rather, affirmed that the offending vehicle stopped at a distance of around 50-60 feet from the spot of accident where the appellant was apprehended at the spot. Evidently, besides a general statement of the offending vehicle being driven 'in a high speed and in rash and negligent manner', nowhere in his testimony, Sh. Ramesh Kumar/PW-4 gave any indication as to an estimation and/or an indication of speed of the offending vehicle or elucidated the manner in which the vehicle was stated to be driving 'rashly or negligently'. Further, nothing has been placed on record to demonstrate whether or not there were any skid marks, attempt of the offending vehicle to overtake the motorcycle in question from a wrong side, appellant driving from wrong side, etc., so as to explicate the element of so called rashness and/or negligence in the conduct/mens rea of the appellant at the relevant point in time.
20. Significant at this stage to further observe for the purpose of present discussion that it is a settled law that merely driving a vehicle with high speed does not per se denote driving the vehicle, rashly and negligently. As a corollary, no culpability can be attributed to a driver of a vehicle merely for the reason that the offending was being driven in high speed, for the want of clear and unambiguous proof of rashness or negligence on behalf of/by such a person/accused. Reference, in this regard is made to C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 19 of 27 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.03.27 16:47:54 +0530 the decision of the Hon'ble Supreme Court in State of Karnataka v. Satish, (1998) 8 SCC 493, wherein the Hon'ble Court while confronted with the akin issue noted as under;
"4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case."
(Emphasis supplied)
21. Similarly, the Hon'ble High Court of Delhi in Abdul Subhan v. State (NCT of Delhi), Supra., in a similar context held as under;
"10. ...The aforesaid observations of the Supreme Court make it more than clear that a mere allegation of high-speed would not tantamount to rashness or negligence. In the present case also, I find that apart from the allegation that the truck was being driven at a very high-speed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent. In any event there is C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 20 of 27 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.03.27 16:48:09 +0530 no description or approximation of what was the speed at which the truck was being driven. The expression "high-speed" could range from 30 km per hour to over 100 km per hour. It is not even known as to what the speed limit on Mathura Road was and whether the petitioner was exceeding that speed limit. Therefore, in the absence of material facts it cannot be said, merely because there is an allegation that the petitioner was driving the truck at a high- speed, that the petitioner is guilty of a rash or negligent act. Clearly the petitioner cannot be convicted on the sole testimony of PW 3 which itself suffers from various ambiguities..."
(Emphasis supplied)
22. At this stage, it is further apposite to note that the superior courts have also assiduously cautioned regarding drawing of any presumption of rashness or negligence merely for the reason of occurrence of a fatal accident 9 or for the reason of demise of an innocent person in road accident. In fact, not only is any such presumption, not envisaged under law, rather, the same cannot absolve the prosecution of proving the basic ingredients of the offences under Sections 279/304A IPC. Appositely, the Hon'ble High Court of Delhi in this regard in Narender v. State (Govt. of NCT of Delhi), 2021 SCC Online Del 4729, noted as under;
"21. In the instant case, on the mere fact that an innocent died in a road accident, the presumption of rashness and negligence against the petitioner cannot be drawn. Reference may be taken in this connection of the observation made by another Bench of this Court in State (NCT of Delhi) v. Jagbir Singh reported as 2019 SCC Online Del 8401, where it was held that:--
"20. ...It is necessary to avoid being influenced by the prejudice arising out of the loss of a life which is a dominant factor in cases of accident."' (Emphasis supplied)
23. Considering the facts of the present case, this Court 9 State v. Hari Singh, 1968 SCC OnLine Raj 1: AIR 1969 Raj 86.
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further deems it apposite to also refer to the observations made by the Hon'ble Supreme Court in Shakila Khader v. Nausheer Cama, (1975) 4 SCC 122, wherein the Hon'ble Court expounded few of the factors, necessary for determining rashness and/or negligence, as under;
"6. The facts in the case speak eloquently about what should have happened. The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic, and the attempt, as in this case, to overtake the other vehicles resulting in going to the wrong side of the road and being responsible for the accident. Even if the accident took place in the twinkling of an eye it is not difficult for the eyewitness to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle travelling on that side of the road..."
(Emphasis supplied)
24. Additionally, to comprehensively appreciate the instant quandary, it is germane to make a reference to the decision of the Hon'ble High Court of Delhi in Kishore Chand Joshi v. State, 2018 SCC Online Del 12337, while declaring that a witness is incompetent to render an opinion as to 'rashness or negligence', observed as under;
"16. PW-2 has given his opinion about the manner of driving. Rash and negligent manner is an opinion which may vary from person to person depending on the perception of an individual. What may be "rash and negligent" for one may not be "rash and negligent" for another. For one person, driving at a speed of 80 may be high speed and rash and negligent and for another it may not be.
17. A witness can depose as to the manner of driving or speed at which the vehicle was being driven but not render an opinion on "rash and negligent". High speed by itself may not in each case be sufficient to hold that a driver is rash or negligent. Speed alone is not the criterion for deciding the rashness or negligence on the part of the driver (Ram Chander v. State, 2017 [4] JCC 2676)."C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 22 of 27 Digitally signed by ABHISHEK
ABHISHEK GOYAL Date: GOYAL 2024.03.27 16:48:25 +0530 (Emphasis supplied)
25. Manifestly, from the exposition of law outlined hereinabove, it is reiterated that in order to establish charges/offence under Sections 279/304A IPC, the commission of a rash and negligent act on the part of the appellant had to be proved by the prosecution that too, 'beyond reasonable doubt'. However, in conspectus of the foregoing scrutiny, it is reasonably deduced that the words, 'high speed', surfacing in the testimony of witness(es) is not sufficient to unambiguously bring home the case/charges under Sections 279/304A IPC against an appellant for the reason that the said term is not only quite relative, rather, inadequate to bespeak of negligence or rashness, which is essential element of the said offences. It is further reiterated that there is no presumption under law of rashness or negligence merely for the reason of occurrence of a fatal accident or for the reason of demise of an innocent person in road accident, which the superior courts have insistently cautioned the trial courts to be wary of when confronted with the cases/prosecution under the relevant provisions of law. Similarly, there can be no presumption under law regarding such culpable mens rea simply for the reason that the impact in an accident was caused by the offending vehicle from behind, in the absence of any material particulars/elaboration, which is not even otherwise the case of the prosecution in the present case. Needless to mention, such culpability must unfold from evidence brought forth on record and cannot be deduced by Court on mere assumptions. Further, as aforenoted, witnesses to an incident of road accident can only depose as to the manner of driving or speed at which the vehicle was being driven but not render an opinion on "rash and C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 23 of 27 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.03.27 16:48:32 +0530 negligent".
26. Whence, in light of the foregoing exposition of law, when the facts of the present case are appreciated, especially in light of the testimony of the 'eyewitness', Sh. Ramesh Kumar/PW-4, as hereinunder noted, this Court finds itself difficult to be convinced that the prosecution has been able to prove/attribute the requisite mens rea of rashness and/or negligence to the appellant herein, in the facts and circumstances of the present case. Needless to reiterate that the only fact forthcoming from the testimony(ies) of the aforenoted prosecution witness(es), and in particular from the deposition of Sh. Ramesh Kumar/PW-4, before the Ld. Trial Court in regard the aforesaid is the appellant's driving the offending vehicle in a high speed and the factum of decease's motorcycle/deceased coming under the rear/back side wheel of the offending vehicle, after the deceased had lost control over his vehicle/motorcyle. However, in light of the foregoing, mere enunciation of words 'high speed in rash and negligent manner' would not, in the opinion of this Court, be sufficient to bring home charges/culpability on the appellant. Apposite to further note that the Ld. Trial Court, under the impugned judgment has further reached a finding that the appellant was rash and negligent in not been able to stop the offending vehicle, "when the motorcyclist was being hit and it was stopped only after some distance." However, the said finding of the Ld. Trial Court does not find favor with this Court, as not being supported with the evidence/material placed on record as well as the settled law. Firstly, as aforenoted, there is nothing on record that the offending vehicle had actually/consciously 'hit' the C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 24 of 27 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.03.27 16:48:38 +0530 deceased/deceased's motorcycle, rather, even Sh. Ramesh Kumar/PW-4 asserted that the deceased lost control of his bike, i.e., dagmaga gaya and came under the back side/rear wheel of the offending vehicle. Secondly, not only the factual scenario unwaveringly points out that the accident had occurred from the rear wheel of the offending vehicle, rather, as aforenoted, no presumption of culpability can be ascertained from the factum of 'high speed' of the offending vehicle in question, in the absence of any other evidence regarding width of the road, density of the traffic, attempt of offending vehicle to overtake the other vehicles resulting in going to the wrong side of the road, etc. forthcoming from record. Quite evidently, it is not even the prosecution's case that the appellant had consciously hit the deceased with the offending vehicle and thereafter deliberately halted at a distance. Rather it is reiterated that the deceased is stated by PW-4 to have come under the rear end wheel of the offending vehicle, after he lost control over his vehicle. Ergo, under such circumstances, it would not be within any cannons of law or prudence to presume culpability on the part of the appellant simply for the reason when the vehicle was stopped at some distance, especially even more so, when no evidence is forthcoming as to the stage/point in time when the appellant's awareness of the occurrence of accident in question could be determined. In fact, it is not even the prosecution's case that the appellant immediate became aware of the deceased's coming under the rear end wheel of the vehicle in question, despite which he did not stop his vehicle. Accordingly, under such circumstance, in the considered opinion of this Court, culpable mens rea could not have been presumed on the part of the appellant, solely for the said reason, as C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 25 of 27 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2024.03.27 16:48:44 +0530 mentioned under the impugned judgment. It is needless to further mention that neither the motor vehicle inspector, who examined the vehicles in questions have been adduced as prosecution witnesses, besides nothing inculpatory is even otherwise forthcoming from such mechanical inspection reports.
27. Conclusively, in view of the above discussion, this Court reiterates that the prosecution has failed to establish the requisite mens rea against the appellant herein, bereft of which no culpability under Sections 279/304A IPC can be attributed upon the appellant. Accordingly, in light of the foregoing explication/ discussion, the present appeal deserves to be allowed and is hereby allowed.
28. As such, this Court reiterates that from the facts and circumstances placed on record, the appellant cannot be determined to be guilty, 'beyond reasonable doubt', of any offence as charged and convicted/sentenced with by the Ld. Trial Court. Needless to further mention at this stage that it is trite law10 that if two views are possible, the one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted. Consequently, the judgment dated 05.01.2016 and order of sentence dated 06.09.2016, passed by the learned Metropolitan Magistrate/Ld. MM-06, Central, Tis Hazari Courts, Delhi in case bearing "State v. Bijender Kumar", arising out of FIR No. 147/2009, P.S. Civil Lines, convicting and sentencing, respectively, the appellant for the offences punishable under Sections 279/304A IPC are hereby set aside. The appellant is hereby admitted to bail on furnishing of a personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand only) along 10 Raghunath v. State of Haryana, (2003) 1 SCC 398 C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 26 of 27 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.03.27 16:48:50 +0530 with one surety of the like amount, as required under section 437A Cr.P.C. As requested, the bail bond be furnished within a period of one week.
29. Trial Court Record be sent back along with a copy of this order.
30. Appeal file be consigned to record room after due compliance.
Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2024.03.27 16:48:57 +0530 Announced in the open Court (Abhishek Goyal) on 27.03.2024. ASJ-03, Central District, Tis Hazari Courts, Delhi C.A. No. 55006/2016 Bijender Kumar v. State (NCT of Delhi) Page 27 of 27