Delhi District Court
State vs . Mohd. Anees on 29 August, 2018
STATE VS. MOHD. ANEES
IN THE COURT OF SH. VIJAY KUMAR JHA, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SHAHDARA), KKD COURTS DELHI.
FIR No.145/2010
PS : Jagatpuri
U/S 279/304A IPC
State vs. Mohd. Anees
a) ID No. of the case :
b) Date of Institution : 01.07.2010
c) Date of commission of offence : 30.03.2011
d) Name of complainant : Mohd. Muslim
e) Name of the accused, and : Mohd. Anees
parentage and address S/o Mohd. Ida
R/o G4/55, THuts,
G Block, Sunder Nagri,
Delhi.
f) Offence complained of : U/S 279/304 A IPC
g) Plea of the accused :Pleaded not guilty
h) Date of judgment reserved : Not reserved
i) Final order : Acquittal
j) Date of such Order : 29.08.2018
JUDGEMENT
1. The case FIR was registered on the complaint of the complainant dated 22 April, 2010 in which the complainant stated that on April 19, 2010 at about 8.00 pm the complainant along with his uncle Md. Yasin were returning to their godown after selling fruits and at FIR NO.145/2010, PS Jagatpuri Page 1/12 STATE VS. MOHD. ANEES that time the uncle of the complainant was having a rehri. When the complainant and the uncle of the complainant reached near Khureji Petrol Pump, the uncle of the complainant was hit by a motorcycle bearing registration no. DL13SC2251 which was driven at a high speed, rashly and negligently. Because of the accident the uncle of the complainant received grievous injuries. The motorcycle driver stopped his motorcycle and approached the complainant and said that the treatment of the uncle of the complainant would be done by him and the motorcycle driver disclosed his name as Md. Anees i.e. the accused in the present case. After that the accused got the uncle of the complainant admitted in GTB Hospital. Thereafter the condition of the uncle of the complainant deteriorated and the accused also refused to carry out the treatment therefore the complainant approached the police for initiating the legal action against the accused.
2. On the basis of the complaint the case FIR was registered under section 279/337 of Indian Penal Code. As the uncle of the complainant expired during the investigation section 304A of Indian Penal Code was invoked. After the completion of the investigation chargesheet under section 279/304A of Indian Penal Code was filed. Vide order dated March 30, 2011 the notice under FIR NO.145/2010, PS Jagatpuri Page 2/12 STATE VS. MOHD. ANEES section 251 of Code of Criminal Procedure was given to the accused for the commission of the aforesaid offences. The accused pleaded not guilty and claimed trial.
3. The prosecution in order to prove the charges against the accused has examined the following witnesses:
1. The complainant as PW1.
2. ASI Ajay Pal as PW2 who was the second investigating officer of the case and had carried out part of the investigation.
3. ASI narender as PW3 who was the initial investigating officer of the case.
4. SI Charan Singh was the third investigating officer in the case.
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 wherein all the incriminating facts which had come in the deposition of the witnesses of the prosecution was put to the accused and was asked his explanation. The accused denied all the incriminating facts and stated that the accused had been falsely implicated in the present case and that on the date of the accident the accused was passing through the spot along with his family and saw that a rehri owner was lying on the road in an FIR NO.145/2010, PS Jagatpuri Page 3/12 STATE VS. MOHD. ANEES injured condition and had taken the injured to the hospital through a TSR and got him admitted to GTB hospital. The nephew of the injured met the accused in the hospital and enquired about his name, address and motorcycle number. Thereafter the accused came back from the hospital and on the next day the accused was called and the accused had given his blood to the injured. The accused also stated that he did not know as to how the accused was implicated in the present case. The accused that that the accused wanted to lead evidence in defence but the accused has not examined any witness.
5. I have heard the arguments and perused the records of the case.
6. One of the offences which the accused is alleged to have committed it the offence falling under section 304A of Indian Penal Code i.e. that accused caused the death of Yasin by rashly and negligently driving the motorcycle bearing no.DL13SC2251, make Hero Honda Passion.
7. The doing of a rash or negligent act, which causes death, is the essence of section 304 IPC. Under section 32, Indian Penal Code, the act includes 'illegal omission'. Therefore, if an illegal omission occurs as a result of negligence, which results in death, then this section will apply.
FIR NO.145/2010, PS Jagatpuri Page 4/128. 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.
9. 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, either to the public generally or to an individual in particular, FIR NO.145/2010, PS Jagatpuri Page 5/12 STATE VS. MOHD. ANEES which a reasonable man would have adopted. (See S. N. Hussain v. State of AP AIR 1972 SC 685).
10. 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).
11. 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 FIR NO.145/2010, PS Jagatpuri Page 6/12 STATE VS. MOHD. ANEES the conduct of human affairs, 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.
12.In the present case the deposition of the witnesses have to be analysed in order to find out if the motorcycle 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.
13.The complainant PW1 deposed in his examination in chief : "On 19.04.2010 at about 8.00 p.m, I my uncle namely Md. Yasin was returning to our home from our godown. My uncle was carrying the rehri and I was also going with him on foot. When we reached near Khureji Petrol Pump, accused Anis came on a motorcycle and hit my uncle Yasin with motorcycle from front. Anis was riding the motorcycle at high speed at that time. My uncle got injury on his abdomen due to hitting by the motorcycle. My uncle fell down on the road. The motorcycle rider ran away from the spot. I took my FIR NO.145/2010, PS Jagatpuri Page 7/12 STATE VS. MOHD. ANEES uncle to Life Line Hospital but he refused to admit and thereafter, I took my uncle to GTB Hospital. Police had also came at the spot, where accident took place. My statement was recorded by the police in the police station. My statement is now Ex.PW1/A which bears my signature at point A. I did not show the place of incident to the police. My uncle could not recover and as per my idea my uncle expired after one week of the accident."
14. There are a lot of contradiction in the written complaint Ex. PW 1/A on the basis of which the case FIR was lodged and what PW1 deposed before the court. As per the complaint the accused stopped his motorcycle, took the uncle of the complainant to GTB hospital. However in the deposition before the court the complainant deposed that the motorcycle rider ran away from the spot. That it was PW1 who had taken the injured i.e. his uncle to Life Line hospital where the injured was refused admission and thereafter the injured was taken to GTB hospital. These are material contradictions.
15. The deposition of PW1 indicates that the accident did not happen in the presence of PW1 i.e. PW1 is not the eye witness of the accident. What the accused stated in his statement recorded under section 313 of Code of Criminal Procedure is in some parts in conformity with the complaint Ex. PW1/A. With the permission of the court the Ld. APP for the State put leading questions to the FIR NO.145/2010, PS Jagatpuri Page 8/12 STATE VS. MOHD. ANEES complainant to undone the damage to the case of the prosecution which was done by PW1 in his examinationinchief. PW1 on whose shoulder the entire case of prosecution is resting; to the court PW1 does not appear to be a credible witness on whose deposition the court might rely. Further in the entire deposition of PW1 there is no fact explicated on the basis of which it could be said that the accused was in fact rash and/or negligent in driving the motor cycle due to which the accident occurred in which the injured lost his life; assuming that the accident in fact occurred with the motorcycle of the accused which the accused was driving.
16.Merely saying that the accused was rash or negligent in driving the offending bus with which the accident had occurred in which Md. Yasin expired does not take the case of the prosecution anywhere. In the entire deposition of PW1 there are two words on which the culpability of the accused hangs and they are 'highspeed'. And it has not been amplified by PW1 in his deposition as to how because of fast speed the accused was rash and negligent.
17.For arguments sake, it is assumed that it was the accused who was driving the offending motorcycle with which the accident had occurred in which the injured lost his life at fast speed. But, only if the accused was driving the offending motorcycle at 'fast speed' it FIR NO.145/2010, PS Jagatpuri Page 9/12 STATE VS. MOHD. ANEES does not lead us to the inference that the accused was either rash or negligent perse. The Punjab and Haryana High Court in Union Territory Chandigarh v. Geja Singh 2006 (1) RCR (Criminal) 980 has observed: "So also fast speed cannot be the sole deciding factor, in inferring negligence. High speed, on an empty road, would obviously not be rash and negligent but the converse may be true on a crowded road, more so, when vehicles are driven at high speeds around traffic rotaries (round abouts)."
18.Similarly Andhara Pradesh High Court in K. Nagaraju v. State of Andhra Pradesh 2011 ACJ 181 has observed that mere driving of vehicle at a speed cannot be termed as driving in a rash and negligent manner.
19.The Hon'ble Supreme Court in Mohanta Lal Saha v. State of West Bengal 1968 ACJ 124 it has been observed that, "To one man a speed of even 10 or 20 miles per hour may appear to be high, while to another even a speed of 25 or 30 miles per hour may appear to be reasonable speed. On the evidence in this case, therefore, it could not be held that the appellant was driving the bus at a speed which would justify holding that he was driving the bus rashly and negligently."
20.In the present case the deposition of PW1 with respect to the accused driving the offending motorcycle at fast speed does not FIR NO.145/2010, PS Jagatpuri Page 10/12 STATE VS. MOHD. ANEES take the court to the only inference that the accident in which the injured expired was caused by the rash and negligent act of the accused, though there is a great probability that the injured expired in the accident caused by the accused.
21.In the site plan Ex. PW3/A, the spot of accident is at point A and as per the deposition of PW1 (if the same is believe) the accused hit the uncle of the complainant from front. There is nothing in the deposition to indicate as in which direction the accused was driving the motorcycle or in which direction deceased was going along with his rehri. As it has not been deposed that the accused was driving on the wrong side it can be safely be assumed that the accused on driving on the right direction that is accused was driving in North to South direction and if the accused hit the deceased from front it means that the accused was moving from South to North direction i.e. that accused was going against the flow of traffic indicating that it was highly likely that the accident happened because of the negligence of the deceased. Be that as it may after analyzing the deposition of the witnesses of the prosecution that court is of the opinion that the prosecution has failed to prove the material ingredients of the offence under section 304A of Indian Penal Code against the accused.
FIR NO.145/2010, PS Jagatpuri Page 11/1222.The accused is also charged with the offence under section 279 of Indian Penal Code and material ingredients of the said section is also rashness and negligence in driving. When the prosecution has failed to prove the offence under section 304A of Indian Penal Code, the court is of the opinion that the charge under section 279 Indian Penal Code has also to fail on the same reasons and logic on which the charge under section 304A of Indian Penal Code has failed against the accused.
23.The accused is hereby acquitted for the offence under section 304A/279 of Indian Penal Code. Digitally signed VIJAY by VIJAY KUMAR JHA KUMAR Date: 2018.09.03 JHA 16:23:40 +0530 Announced in Open Court (VIJAY KUMAR JHA) on 29.08.2018 Additional Chief Metropolitan Magistrate Shahdara Distt., KKD Courts, Delhi FIR NO.145/2010, PS Jagatpuri Page 12/12