Delhi District Court
State vs . Vijender Singh on 24 January, 2012
IN THE COURT OF SH. SUDESH KUMAR
METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT
PATIALA HOUSE COURTS: DELHI
FIR No.: 31/05
Police Station: Chanakaya Puri
U/S: 279/338 IPC
IN THE MATTER OF
STATE VS. Vijender Singh
S/o Sh. Ram Kumar
R/o H.No. 8/17, Mehram Nagar, Palam Airport, Delhi.
Date of institution:25.07.2005
Date of reserving judgement/Order: 14.12.2011
Date of Pronouncement of Judgement/Order: 24.01.2012
Final Order: Acquitted.
Brief statement of reasons for such decisions:
1.The present FIR has been registered on the basis of a complaint dated 16.02.2005 filed by Ct. Sugan Singh, wherein he has alleged that on 16.02.2005, while he was posted as Ct. in the Tilak Marg Traffic Circle alongwith Ct. Inderjeet Singh. They were at their point of duty and at about 03.45 pm, one bus bearing no. DL 1P A 5201 being driven by accused Vijender Singh came and while the said bus was taking a turn from Janpath Road to Nirman Bhawan in a rash and negligent manner and fast speed during this process one passengers namely D. Chakarbortee fell down from the bus and got injured. It has been alleged that it was rash and negligent driving of the accused which has resulted in injuries on the person of injured Mr. D. Chakarbortee.
2. After supplying documents to the accused U/s 207 IPC, notice U/s 279/338 IPC was settled against the accused by my Ld. Predecessor on 30.11.2005 to which the accused pleaded not guilty and claimed trial.
3. To prove its case, prosecution has examined as many as 9 witnesses in support of its case.
(i) PW 1 HC Babu Lal, who was the duty officer on 16.02.2005 has proved the copy of STATE VS. Vijender Singh FIR No.: 31/05 Police Station: Chanakaya Puri U/S: 279/338 IPC 1 of 18 FIR produced on record as Ex. PW 1/A and rukka as Ex. PW 1/B and also identified his signatures on the same at point A. The witness was not cross-examined by Ld. Defence Counsel despite opportunity being given.
(ii) PW 2 Sh. S. Methu, record clerk from RML Hospital has recognized the handwriting and signatures of Dr. S.K. Sahu, CMO RML Hospital having seen him writing and signing during the course of his official duty. He identified signatures of Dr. Sahu. He further stated that Dr. Sahu has left the services of the hospital and his present whereabouts were not known. He further stated that the MLC of injured D. Chakarwarti Ex. PW 2/A bears the signatures of Dr. Sahu at point A. This witness was also not cross-examined by the defence despite opportunity being given.
(iii) PW 3 Sh. D. Chakaraborty, who was the injured in the present case deposed (as recorded) that on 06.02.2005, after his office he boarded bus bearing no. DL 1P 5201 to come to his house. At around 03.45 pm, when the bus reached at National Museum, the driver of the bus was driving the bus negligently and rashly due to which he fell down and sustained injuries. Thereafter police van took him to the RML Hospital. He sustained injuries in brain. Police came to him but he could not remember the day and police enquired from him about the incident. He further deposed that he could not identify who was driving the bus at the time of incident. The accused, however, not objected to the identity of the bus.
In his cross-examination by Ld. Defence Counsel PW 3 stated that he is in habit of noting down the number of the bus be boards. He denied the suggestion that he noted down the route number and not the bus number. The bus stopped at bus stop for about two minutes. He admitted that he was carrying the brief case at the time of incident in the bus. He denied the suggestion that due to carrying of the brief case and due to crowd he could not enter into the bus and was travelling at the steps at the gate and fell down on his own. He admitted that his brief case fell down alongwith him. He denied the suggestion that the driver of the bus was not driving the bus rashly and negligently. He further denied the suggestion that he fell down from the bus due to his own fault. He denied the suggestion that the number of the bus was told to him by the police and was not noted by him. He denied the suggestion that there was bus stand at the place and hence the bus could not be in high speed STATE VS. Vijender Singh FIR No.: 31/05 Police Station: Chanakaya Puri U/S: 279/338 IPC 2 of 18 at the time of accident. He further denied the suggestion that he had received all his medical expenses from his office being Government servant or that he was deposing falsely.
(iv) PW 4 Dr. Rakesh Aggarwal deposed that he was working as Neurologist in the Apollo Hospital since 1995. The patient D. Chakaraborty was admitted on 27.02.2005 and was treated in the hospital till 24.06.2005, when he was discharged from the hospital. The witness also produced on record the original discharge summary as Ex. PW 4/A and also identified his signatures on the same at point A. He also proved on record medical certificate dated 01.07.2005 issued by him as Ex. PW 4/A bearing his signatures at point A. He further stated that the discharge summary contains all the treatment given to the patient.
In his cross-examination by Ld. Defence Counsel PW 4 stated that in the year 2005, when the patient was admitted in the hospital after a operation from RML Hospital he was unconscious. PW 4 admitted that after three months treatment, the patient has recovered upto 70 per cent.
(v) PW 5 Mr. Pratap Singh stated that he was the registered owner of the bus bearing no. DL 1P A 5201. He got the bus released on superdari by executing a bond. He further stated that at the time of accident at 03.45 pm on 16.02.2005 at Janpath crossing his driver Vijender Singh was driving the said bus. He also identified the accused present in the Court. He also produced on record the copy of the RC and insurance as mark X and Y of the offending bus. The identity of the offending bus was not disputed by the accused.
This witness was not cross-examined by Ld. Defence Counsel despite opportunity being given.
(vi) PW 6 Ct. Kumwar Pal Singh deposed that on 16.02.2005, he was posted as Ct. in PS Tughlak Road and on that day after receiving DD No. 13-A, he alongwith SI Kurda Ram went to RML Hospital, where they found injured D. Chakarborty admitted vide MLC No. 175/94 of 1995 and doctors declared the injured unfit for statement. They came back at the spot i.e. Janpath Crossing, where they found one bus bearing no. DL 1P 5201 alongwith Ct. Sugan Singh, who produced the accused driver of the bus whose name was revealed as Vijender Singh. IO recorded the statement of Ct. Sugan and prepared the rukka and got the case registered through him. He further deposed that the bus was seized vide memo Ex. PW 6/A. Accused was arrested and his personal search was conducted vide memo Ex. PW 6/B and Ex. PW 6/C. IO seized the copy of RC and insurance and permit vide memo Ex. PW 6/D. STATE VS. Vijender Singh FIR No.: 31/05 Police Station: Chanakaya Puri U/S: 279/338 IPC 3 of 18 The driving licence of accused was seized vide memo Ex. PW 6/E. He identified his signatures on all memos at point A. The witness also correctly identified the accused present in the Court. He also stated that he can identify the bus if shown to him. The accused did not dispute the identity of the bus.
In his cross-examination by Ld. Defence Counsel for accused PW 6 deposed that they reached at the spot at about 05.00 pm. Ct. Sugan Singh was the only police person present at the spot when they reached at the spot. Accused Vijender Singh was also sitting there. He further deposed that all the proceedings were conducted at the spot itself. He denied the suggestion that all the proceedings were conducted at the PS and stated that it took about two hours in preparing all the documents and proceedings at the spot. He denied the suggestion that as it was dark all the paper work was done in the PS. He further deposed that his statement was recorded in the PS on the same day by SI Kurda Ram and statement of Ct. Sugan Singh was recorded at the spot. Except three of them no other police person was present there. Accused was arrested on the spot. When they reached at the spot no body was in the bus and public was passing by on the road. He further stated that IO did not request public person having seen the incident in front of him. He could not remember whether the conductor of the bus was present at the spot. Except three of them and the accused no one else was present including the cleaner, owner of the bus, conductor and any other public person. He denied the suggestion that the IO recorded his statement and that of Ct. Sugan Singh and prepared the rukka and seizure memos, arrest and personal search memos not prepared at the spot but at the PS. He further denied the suggestion that accused was apprehended by PCR and handed over to the IO. He further denied the suggestion that accused has not caused the accident and he was deposing falsely.
(vii) PW 7 Ct. Sugan Singh deposed that on 16.02.2005, he was posted at Tilak Marg Traffic Circle and on that day he was on duty at Maulana Azad Road and Janpath Crossing. At about 03.45 pm, one bus bearing no. DL 1P A 5201 came from the side of Janpath and was turning towards right Maulana Azad Road and while the bus was turning in the meantime one person fell down from the bus. He gave signal to the driver of the bus and he stopped the bus and he informed the PCR. PCR official came at the spot and injured was taken to RML Hospital. Local police from PS Tughlak Road also came at the spot and he also told them regarding the injured person. The witness further stated that IO also went to the hospital and from there he came back at the spot. The witness also identified the accused present in the Court.
STATE VS. Vijender Singh
FIR No.: 31/05
Police Station: Chanakaya Puri
U/S: 279/338 IPC 4 of 18
As the witness was resiling from his previous statement, he was allowed to be cross- examined by Ld. APP for State.
In his cross-examination by Ld. APP for State, PW 7 admitted that police recorded his statement Ex. PW 7/A. The witness accepted his statement having made to be correct.
In his cross-examination by Ld. Defence Counsel PW 7 deposed that when a person had been fallen down from the bus, he gave whistle to the said bus and the driver of the bus has stopped immediately. He further stated that he had told this fact to police in his statement Ex. PW 7/A, however, he further stated that it has not been recorded in his statement. He had also told in his statement to the IO regarding taking of injured by PCR official to RML hospital but it was also not mentioned in his statement. The witness denied the suggestion that he was not present at the spot and no accident took place in his presence and he had not seen anything. He further denied the suggestion that he had not seen the PCR taking the injured to the hospital. He further denied the suggestion that he is deposing falsely.
(viii) PW 8 Retired SI Kurda Ram, IO of the present case deposed (as recorded) that on 16.02.2005, he was posted as SI at PS Tuglak Road and he was on emergency duty from 8 AM to 8 PM. DD no. 13 A was registered at PS Tuglak Road and the same was received by him. He along with Ct. Kanwal Pal Singh went to RML Hospital where they received the MLC of injured D. Chakraborty and the Doctor declared him unfit for statement. He along with Constable reached at the spot i.e. National Museum. At the spot, traffic constable Sugan Singh and driver Vijender Singh were present and vehicle bearing no. DL 1PA 5201 was also standing. The statement of Traffic Ct. Sugan Singh was recorded by him, which was exhibited as Ex. PW 1/B bearing his signatures at Point B. Thereafter, rukka was prepared by him at the instance of Sugan Singh and sent Ct. Kanwar Pal Singh for the registration of FIR and he prepared the site plan as Ex. PW 8/A bearing his signatures at Point A. Thereafter, constable Kanwar Pal Singh came back at the spot after the registration of FIR and driver Vijender Singh was arrested vide memo already exhibited as Ex. PW 6/B and his personal search was conducted, which was already exhibited as Ex. PW 6/C. He also identified his signatures at point B on both the memos. He further stated that the vehicle in question and the DL of the accused were taken into possession vide seizure memo exhibited as Ex. PW 6/A and Ex. PW 6/E. He also identified his signatures at point B on both the memos and also recorded the statements of Traffic Ct. Sugan Singh STATE VS. Vijender Singh FIR No.: 31/05 Police Station: Chanakaya Puri U/S: 279/338 IPC 5 of 18 and Ct. Kanwar Pal Singh. The vehicle in question and driver were taken to PS where the surety Pratap Singh was present and the accused was released on bail and the vehicle was deposited in Malkhana. The photocopies of RC and Insurance were seized vide memo already exhibited Ex. PW 6/D which also bear his signatures at Point B. He further deposed that on 17.02.2005, the vehicle was got mechanically inspected and on the same day, when the Pratap Singh showed the Orders of releasing the vehicle vide superdarinama Ex. PW 8/B bearing his signatures at Point A and the vehicle was released to him. He further stated that they reached RML Hospital regularly but the Doctor declared D. Chakraborty unfit for statement and lastly on 27.02.2005, the injured D. Chakraborty was taken by his relatives without prior permission from the hospital. He further deposed that on 27.02.2005, DO of PS Tuglak Road informed him that injured D. Chakraborty was admitted to Apollo Hospital. Thereafter, he regularly visited Apollo Hospital but the Doctor declared him unfit for statement. On 24.06.2005, when he reached Apollo Hospital, Dr. Rajesh Aggarwal informed him that the injured D. Chakraborty has been discharged from the hospital and when he came back to the PS the injured D. Chakraborty was present along with his wife. He further stated that accused Vijender was also present in the PS to get the information regarding his case. He recorded the statement of injured D. Chakraborty same was Ex. PW 8/C bearing his signatures at Point A and he had correctly identified the accused Vijender. On 01.07.2005, the result of MLC was received from the Apollo hospital where the injuries were shown grievous. Thereafter, he filed challan in the Court This witness was not cross-examined by defence despite opportunity being given.
(ix) PW 9 T.U. Siddiqui deposed that on 17.02.2005, he had inspected bus no. DL 1P A 5201 on the request of IO at PS Tughlak Road, New Delhi. He deposed that his report in this regard was Ex. 9/A, bearing his signatures at point A. He further stated that the vehicle was fit for road test.
In his cross-examination by Ld. Defence Counsel, PW 9 deposed that he had inspected the bus and there was no dent on the said bus. He denied the suggestion that he had not inspected the bus or that he was deposing falsely.
4. No other PW was examined by the Prosecution. Hence, PE was closed and the matter was posted for recording of statement of accused U/s 313 Cr. PC.
STATE VS. Vijender Singh
FIR No.: 31/05
Police Station: Chanakaya Puri
U/S: 279/338 IPC 6 of 18
5. Thereafter statement U/s 313 Cr. PC of accused was recorded on 25.11.2011, wherein he stated that he was not driving the said bus rashly and negligently. The passenger had boarded the bus having a briefcase in his hand and he was standing on the stairs of the bus in the rear side and he has lost his control and due to lost of his control he has fallen down. He had gone to PS, where police persons have arrested him. All the PWs were interested witnesses and the said passenger had not identified him. He further stated that he was innocent. He had been falsely implicated in the present case. He was not driving the vehicle rashly and negligently. This accident was caused due to the negligence of the injured as he was standing on the stairs alongwith a briefcase in his hand. He himself lost his balance and control. Accused declined to lead DE. Thereafter, the matter was posted for Final Arguments.
6. I have heard Final Arguments and perused the record.
7. The prosecution in the present case has to prove that the injured D. Chakaraborty has fallen down from the moving bus and sustained injuries due to rash and negligent driving of the accused.
8. Before appreciating the testimony of the witnesses coming on record it is relevant to discuss the necessary ingredients of the offences for which the accused has been charged.
9. Section 279 of Indian Penal Code reads:-
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.
STATE VS. Vijender Singh FIR No.: 31/05 Police Station: Chanakaya Puri U/S: 279/338 IPC 7 of 18 Ingredients of Section 279 is driving or riding any vehicle on a public way rashly or negligently.
The basic ingredient of Section 279 IPC is hence that a person drives any vehicle in a manner so rash or negligent as to endanger human life or to cause hurt or injury to any other person.
Section 338 of Indian Penal Code provides:
Causing grievous hurt by act endangering life or personal safety of others- Whoever causes grievous 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 two years, or with fine which may extend to one thousand rupees, or with both.
In all the provisions the important ingredient is to prove rashness and negligence.
10. It is well settled that culpable negligence lies in the failure to exercise reasonable and proper care and the extend 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 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 STATE VS. Vijender Singh FIR No.: 31/05 Police Station: Chanakaya Puri U/S: 279/338 IPC 8 of 18 knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
11. 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.
12. 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 happenings. 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 that 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.
13. In the present case from the record, it is clearly coming up on record that said bus on the date of incident was being driven by accused Vijender Singh and the same has been proved by PW 5 Pratap Singh, the registered owner of the bus in question and even admitted by the accused in his statement. The only point which requires to be proved by the prosecution here is that bus was being driven in a rash and negligent manner by the accused The injured in his deposition has stated that he has boarded the bus for going to his house and when the bus reached National Museam then due to rash and negligent driving of the accused he has fallen down from the bus and sustained injuries. From this deposition it is clear that the incident had not taken place while injured was boarding the bus but at the time when he had already boarded the bus. His testimony was also supported by one eye witness STATE VS. Vijender Singh FIR No.: 31/05 Police Station: Chanakaya Puri U/S: 279/338 IPC 9 of 18 namely PW 7 Ct. Sugan Singh, who stated that offending vehicle while turning towards the right to Maulana Azad Road and while the bus was taking a turn one person had fallen down from the said bus. From the testimony of injured and PW 7 it is clearly proved on record that incident has taken place when the injured has already boarded the bus. The injured has stated in his testimony that accused was driving the bus in a rash and negligent manner due to which he has fallen down. However, the injured has not deposed anything in regard as to in what manner the accused was rash and negligent while driving the vehicle in question. Even the PW 7 Ct. Sugan Singh has not stated anything in his examination in chief that the accused was driving the vehicle in a rash and negligent manner. He has also not mentioned the manner in which the accused was driving the vehicle in question. In his cross- examination by Ld. APP for State he has stated that he had only given his statement to the police Ex. PW 7/A, however, the prosecution has failed to prove on record the submissions made by this witness in his statement Ex. PW 7/A. Even in his cross-examination he has not stated that accused was driving the bus rashly and negligently.
14. No other eye witness has been examined by the prosecution to prove its case. The IO of the present case has failed to cite any passenger of the bus as a witness, who could have corroborated the version of the prosecution or who could have proved the alleged negligence on part of the accused due to which the accident had taken place. The injured has categorically admitted that he was carrying a briefcase with him. It seems that due to carrying of a briefcase in his hand the injured has lost his control while the bus took a turn and due to the same he had fallen down from the bus. It is very clear from the record that the injured has already boarded the bus and if the driver was rash and negligent then other passengers could also have sustained injuries and also fallen down from the bus. The prosecution has not raised any such case. No other passenger has been cited even as a witness. Having boarded the bus, it was for the injured who admittedly was having a briefcase in his hand to support himself to avoid any push or jerk at the time of travelling in the bus. It has come up on record that injured has fallen down from the bus at the time when the bus was taking turn towards Maulana Azad Road. In case the driver of the bus was driving the bus rashly and negligently then other passengers could have also sustained injuries and could have complained of the same.
STATE VS. Vijender Singh
FIR No.: 31/05
Police Station: Chanakaya Puri
U/S: 279/338 IPC 10 of 18
15. It is not the case of the prosecution that there was no passenger in the bus or there was no passenger who has sustained injury. Even none of the passenger have been cited as witness who could have corroborated the case of the prosecution. In these facts and circumstances of the case, criminal negligence and rashness could not be attributed to the accused. There is all the possibility that the injured himself was negligent. No doubt contributory negligence is alien to criminal jurisprudence in India, however, to bring home conviction against a accused it was incumbent upon the prosecution to prove beyond reasonable doubt's that accused was rash and negligent.
16. Furthermore, it is well settled that simple lack of care in such a case will only constitute civil liability. To attribute criminal liability in case of negligence a very high degree of negligence is to be proved before the culpability is established. In this regard, I rely upon 'State Vs Karnataka Vs Muralidhar' passed by Hon'ble Supreme Court in case Criminal Appeal No. 428 of 2002 wherein it was held that:
A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not. Lord Atkin in Andrews V. Director of Public Prosecution MANU/QB/0476/1937 observed as under:
Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'recklessness' most nearly covers the STATE VS. Vijender Singh FIR No.: 31/05 Police Station: Chanakaya Puri U/S: 279/338 IPC 11 of 18 case. It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter; but it is probably not all embracing, for 'recklessness' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction.
Black's Law Dictionary (Sixth Edition) defines 'criminal negligence' as under:
"Criminal negligence which will render killing a person manslaughter is the omission on the part of the person to do some act which an ordinarily careful and prudent man would do under like circumstances, or the doing of some act which an ordinarily careful, prudent man under like circumstances would not do by reason of which another person is endangered in life or bodily safety; the word 'ordinary' being synonymous with 'reasonable' in this connection.
Negligence of such a character, or occurring under such circumstances, as to be punishable as a crime by statute; or (at common law) such a flagrant and reckless disregard of the safety of others, or willful indifference to the injury liable to follow, as to convert an act otherwise lawful into a crime when it results in personal injury or death."
What constitutes negligence has been analysed in Halsbury's Law of England (4th Edition) Volume 34 paragraph 1 (para 3) as follows:
Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the STATE VS. Vijender Singh FIR No.: 31/05 Police Station: Chanakaya Puri U/S: 279/338 IPC 12 of 18 circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all.
Where there is no duty to exercise care, negligence in the popular sense has no legal consequence, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonable foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two.
In this context the following passage from Kenny's Outlines of Criminal Law, 19th Edition (1966) at page 38 may be usefully noted:
Yet a man may bring about an event without having adverted to it at all, he may not have foreseen that his actions STATE VS. Vijender Singh FIR No.: 31/05 Police Station: Chanakaya Puri U/S: 279/338 IPC 13 of 18 would have this consequence and it will come to him as a surprise. The event may be harmless or harmful, if harmful, the question rises whether there is a legal liability for it. In tort, (at common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realised the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lie where it falls. But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word 'negligence' denotes, and should be used only to denote, such blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages. But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence. The common habit of lawyers to qualify the work "negligence"with some moral epithet such as wicked' gross' or 'culpable' has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression in order to explain itself.
STATE VS. Vijender Singh
FIR No.: 31/05
Police Station: Chanakaya Puri
U/S: 279/338 IPC 14 of 18
"Negligence", says the Restatement of the law of Torts published by the American Law Institute (1934) Vol. I. Section 28 "is conduct which falls below the standard established for the protection of others against unreasonable risk of harm". It is stated in Law of Torts by Fleming at page 124 (Australian Publication 1957) that this standard of conduct is ordinarily measured by what the reasonable man of ordinary prudence would do under the circumstances. In Director of public Prosecutions v. Camplin (1978) 2 AER 168 it was observed by Lord Diplock that "the reasonable man" was comparatively late arrival in the laws of provocation. As the law of negligence emerged in the first half of the 19th century it became the anthropomorphic embodiment of the standard of care required by law. In order to objectify the law's abstractions like "care" "reasonableness" or "foresee ability: the man of ordinary prudence was invented as a model of the standard of conduct to which all men are required to conform.
In Syed Akbar v. State of Kamataka MANU/SC/0275/1979: 1979 Cri. L.J. 1374,: it was held that "where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions (1937) (2) AER 552 simple lack of care such as will constitute civil liability, is not enough; for liability under the criminal law a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied 'reckless' most nearly covers the case."
According to the dictionary meaning 'reckless' means STATE VS. Vijender Singh FIR No.: 31/05 Police Station: Chanakaya Puri U/S: 279/338 IPC 15 of 18 '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 that act was done, it would have been apparent 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. In R. v. Briggs (1977) 1 AER 475 it was observed that a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from the act but nevertheless continues in the performance of that act.
In R.v. Caldwell (1981) 1 AER 961, it was observed that Nevertheless, to decide whether someone has been 'reckless', whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would not be described as 'reckless' in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual on due consideration of the risk would not be deterred from treating it as negligible, could the accused be described as reckless in the its ordinary sense, if, having considered the risk, he STATE VS. Vijender Singh FIR No.: 31/05 Police Station: Chanakaya Puri U/S: 279/338 IPC 16 of 18 decided to ignore it. (In this connection the gravity of the possible harmful consequences would be an important factor. To endanger life must be one of the most grave). So, to this extent, even if one ascribes to 'reckless' only the restricted meaning adopted by the Court of Appeal in Stephenson and Briggs, of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as 'objective' in current legal jargon. Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective.
The decision of R. v. Caldwell (Supra) has been cited with approval in R. v. Lawrence (1981) 1 AER 974 and it was observed that:
Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it.
17. As observed above, from the testimonies of the witnesses it is clear that the accused was driving the bus in question and the injured has already boarded the bus when the incident has taken STATE VS. Vijender Singh FIR No.: 31/05 Police Station: Chanakaya Puri U/S: 279/338 IPC 17 of 18 place. It is also clear that the accused was driving the bus and the injured was standing at the rear gate of the said bus holding a suitcase in his hand. Hence, in these circumstances, it was upon the injured himself to remain conscious about the movements of the bus or more specifically when the bus was taking turn. From the testimonies of all the PW's, it is clear that the injured has fallen down when the bus was turning.
18. It has been proved on record that the accused was driving the bus, he himself admitted the same, however, from the above observations it could not be proved that the accused has failed to exercise all due and reasonable care, which he was supposed to exercise while driving the bus. As observed above, simple lack of care such as will constitute civil liability is not enough. For the purposes of criminal law there are degrees of negligence and a very high degree of negligence is required to be proved before the felony is established.
19. In the circumstances of the case, I am satisfied that prosecution has not been able to prove the necessary degree of negligence on part of the accused to establish felony. There is no independent witness who could have corroborated the version of the injured. The injured himself has not stated anything regarding the manner as to how the accused was rash and negligent in his driving. His testimony is doubtful. Hence, I am satisfied that prosecution has failed to prove its case beyond reasonable doubts, the accused stands acquitted for the offences punishable U/s 279/338 IPC. Bail bond of the accused, if any is discharged. Documents, if any be released to concerned persons on confirmation of identity. Endorsement, if any also be cancelled.
File be consigned to Record Room.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 24th January, 2012 ) METROPOLITAN MAGISTRATE This Judgment contains 18 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS, DELHI STATE VS. Vijender Singh FIR No.: 31/05 Police Station: Chanakaya Puri U/S: 279/338 IPC 18 of 18