Delhi District Court
State vs . Amreesh on 31 March, 2018
STATE VS. AMREESH
IN THE COURT OF SH. VIJAY KUMAR JHA, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE (SHAHDARA), KKD
COURTS DELHI.
FIR No.617/2008
PS : Anand Vihar
U/S 279/338 IPC
Reg. No.82094/2016
State vs. Amreesh
a) Serial No. of the case : 02402R0210732009
b) Date of Institution : 22.07.2009
c) Date of commission of offence : 08.12.2008
d) Name of complainant : Sh. Rajendra Sharma
e) Name of the accused, and : Amreesh
parentage and address S/o Sh. Madan Lal
R/o H. No.26, UTCS
Complex, East Arjun
Nagar, Delhi.
f) Offence complained of : U/S 279/338 IPC.
g) Plea of the accused : Pleaded not guilty
h) Date of judgment reserved : 03/11.17
i) Final order : Acquittal
j) Date of such Order : 31.03.2018
JUDGEMENT
1. The case FIR was registered on the complaint of the complainant dated 08.12.2008 which states that on 08.12.2008 in the morning FIR NO.617/2008, PS ANAND VIHAR Page 1/12 STATE VS. AMREESH the complainant had come to Laxmi Public School to drop his nephew and when at about 7.30 when the complainant was trying to park his motorcycle near the gate of the school an Indigo car bearing registration No. MP20CA2185 from Shanti Mukund Hospital came at high speed which was driven rashly and negligently and directly hit the motorcycle because of which the complainant along with the motorcycle fell and the complainant received the injuries. The public apprehended the accused, police was called and the complainant was taken to the hospital. After the completion of the investigation the chargesheet was filed under section 279/338 of Indian Penal Code.
2. Vide order dated 20.02.2010 notice under section 251 of Code of Criminal Procedure was given to the accused for the alleged commission of the offences under section 279/338 of Indian Penal Code. The accused pleaded not guilty and claimed trial.
3. In order to prove the case the prosecution has examined the following witnesses: i. PW1 Rajinder Kumar Sharma is the complainant himself.
ii. PW2 Ct. Munesh had taken part in the investigation along with the investigating officer (IO) who had taken the rukka to the police station for the registration FIR NO.617/2008, PS ANAND VIHAR Page 2/12 STATE VS. AMREESH of FIR.
iii. PW3 ASI Deshraj Singh is the IO who investigated the case and file the chargesheet.
iv. PW4 Ms. Shilja Vohra has been called under section 311 of Code of Criminal Procedure vide order dated 04.08.2017. PW4 has not been cited a witness in the list of witnesses filed along with the charge sheet.
4. After the witnesses of the prosecution were examined the accused was examined under section 313 of Code of Criminal Procedure. The accused denied the incriminating facts which had comes in the deposition of the witnesses of the prosecution and stated that the accused had been falsely implicated in the present case. The accused stated that the accused was coming in the offending car from the side of DSSB and was going towards Hedgewar Hospital. Near the Central School, the injured was coming from opposite side on motorcycle which touched the offending car and the accused fell down. The accused has examined himself as DW1.
5. I have heard the arguments and perused the record.
6. Interalia it has been alleged against the accused that the accused committed the offence under section 279 of Indian Penal Code that is, the accused was driving the offending car in rash and negligent manner which was likely to cause injury to some other person.
FIR NO.617/2008, PS ANAND VIHAR Page 3/12STATE VS. AMREESH
7. In order to prove the offence under section 279 of Indian Penal Code the prosecution is required to prove the criminal rashness or criminal negligence. In order to establish criminal liability the facts must be proved by the prosecution that the negligence of the accused went beyond a mere matter of civil liability and compensation and showed such disregard for life and safety of others as to amount to a crime. There must be proof that the rash or negligent act of the accused was the proximate cause of the death. 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.
8. Accident merely due to error of judgment of the driver or without anything to show that he was conscious of the risk that evil consequences would follow or that his rash driving was of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby would not make the driver criminally liable for the offence under Sections 279 of Indian Penal Code. For attracting section 279 of Indian Penal Code, the doing of a rash or negligent act, which causes death, is the essence of this section.
9. Under section 32 of Indian Penal Code, the act includes 'illegal FIR NO.617/2008, PS ANAND VIHAR Page 4/12 STATE VS. AMREESH omission'. Therefore, if an illegal omission occurs as a result of negligence, which results in death, then this section will apply.
10.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'. 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 action. 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, which a reasonable man would have adopted.
11. 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 FIR NO.617/2008, PS ANAND VIHAR Page 5/12 STATE VS. AMREESH causans the immediate cause, and not enough that it may be causa sine qua; nonproximate cause.
12.In view of the discussion herein above, it has to be find out if the accused was rash and negligent in driving Car bearing no. MP 20CA2815. There is only the evidence of the eyewitnesses in the present case to find out if or if not the accused was rash and negligent in driving the Bus from which the deceased met with the accident.
13.The complainant who has been examined as PW1 has stated in his examinationinchief;
I used to reside at the above said address with my family members and doing a private job. On 08.12.2008, I was going to drop my nephew (Bhatija) at Laxmi Public School on my motorcycle no. DL7AU7756. At about 7.30 am, I drop my nephew at the school and was parking my motorcycle near the gate of Central School and I was sitting on the motorcycle. Meanwhile, one car Indigo no.
MP20CA2815 came from the side of Shantimukund Hospital and hit my motorcycle from front side. Due to which I fell down along with my motorcycle. Due to the impact of the offending vehicle, I jumped and fell on the road. I received injuries on my left hand shoulder as I was balanced on the same after falling on the road. Driver of the offending vehicle namely Amreesh present in the court was caught FIR NO.617/2008, PS ANAND VIHAR Page 6/12 STATE VS. AMREESH hold by the public persons. Meanwhile someone make a PCR call on which an ambulance came from Hedgewar Hospital and took me Hedgewar Hospital for medical treatment. The accident had took place due to the fast, rash and negligent driving of the accused. I had given a complaint Ex.PW1/A which bears my signature at point A. Due to the injuries there was a fracture in my shoulder, right thigh and near buttock. The motorcycle was of Sandeep Sharma my friend which I was driving at that time.
14.The examination in examinationinchief of the complainant is different in material particular from the written complaint Ex. PW 1/A on the basis of which the case FIR has been registered. Nowhere in the written complaint Ex. PW1/A the complainant stated that after dropping the nephew of the complainant the complainant was 'sitting on the motorcycle' and why would the complainant sit on the motorcycle after dropping his nephew in the school, is also the question of which answer is not found in the record. Be that as it may, as per the complaint the accident happened when the complainant was trying to park his motorcycle at the side of the gate of the school, but in examinationinchief the complainant gave the version of the accident that the accident happened when the complainant near the gate of Central School was sitting on the motorcycle.
FIR NO.617/2008, PS ANAND VIHAR Page 7/12STATE VS. AMREESH
15.When the testimony is detailed, missing of few facts here and there does not make much of a difference if the substratum of the case of the prosecution is not affected. But, when the testimony of the material witness is cryptic and brief every inconsistency of facts assumes a greater significance. The difference in the manner in which the accident happened as described in the written complaint Ex. PW1/A and the deposition of the complainant also indicates towards the possibility that the complainant is not telling the truth. Generally when one goes to drop the kid to the school on motorcycle, the driver of the motorcycle does not even stops the motorcycle, the kid from the pillion alights and goes to the school and the driver of the motorcycle heads off from the school. In this case there is the difference, the complainant as per the complaint was trying to park his motorcycle near the gate of the school and as per deposition (taking into consideration the crossexamination also) was sitting on the motorcycle after dropping his nephew which is generally not what happens. The prosecution has also not examine any witness (especially the nephew of the complainant) as well to prove that the complainant had infact before the accident had happened had come to the school to drop his nephew to prove that the accident in which the complainant received the injuries in fact happened as is the case of the prosecution. The penal penalty FIR NO.617/2008, PS ANAND VIHAR Page 8/12 STATE VS. AMREESH of law cannot be imposed on the accused on the basis of presumption and it may also be noted that it is the defence (though not proved) that 'the injured was coming from opposite side on motorcycle and he touched his motorcycle with my car and fell down,' (313 Code of Criminal Procedure statement of the accused). After considering the contents of the complaint, the deposition of the complainant and the statement of the accused recorded under 313 of Code of Criminal Procedure a doubt is raised if the prosecution's story is true or not.
16. The examination of PW4 Ms. Shailja Vohra indicates interalia that the IO did not do the investigation of the case in proper manner and in filing of the chargesheet there has been lapses of the supervising authority (SHO and ACP who have forwarded the chargesheet) to see if the brief narration of facts in the charge sheet actually corresponds with the actual facts or not. The name of PW4 does not crop up in the chargesheet or even in the list of witnesses. Here the case is not that the accused cause the accident to PW4, but that the accused caused the accident by rash and negligent driving to the complainant and for that fact PW4 is not the material witness as PW4 is not the eye witness to the fact of the accused causing accident to the complainant as PW4 has deposed, "I had not seen accused driver hitting against the FIR NO.617/2008, PS ANAND VIHAR Page 9/12 STATE VS. AMREESH motorcyclist", in her deposition.
17. Again coming to the deposition of PW2 i.e. the complainant. The prosecution has not proved that the complainant had infact gone to the school to drop his nephew. Had there been some corroboration to that effect it would have been helpful in coming to a definite conclusion as to the veracity of the story of the complainant to ascertain if the accident happened only in the manner in which the complainant says that it had. It may also be mentioned that as per the siteplan, Ex. PW4/A there is no parking space before either the in front of the Laxmi Public School or the Central School, where the complainant could have parked his motorcycle. From the siteplan it appears that the complainant had parked his motorcycle on the road and in a way invited the accident, if the accident really happened in the manner in which the complainant has deposed to in his examinationinchief. Though the concept of contributory negligence is not applicable for criminal offence, but the facts as to how much the complainant is to be blamed for the accident can be taken to weigh if the accused was really rash and negligent in driving the offending car.
18. In the deposition It may also be stated that the words, 'fast speed, rashly and negligently' does not have an magical effects in so far the proving of the offence under section 279 of Indian Penal Code FIR NO.617/2008, PS ANAND VIHAR Page 10/12 STATE VS. AMREESH is concerned. 'Fast speed' is a relative terms and what is a fast speed would vary from person to person. If it is assumed that the accused in the present case was rash and negligent as the accused was driving the Bus at a fast speed at the time of the accident, there is nothing on record to find out as to what actually was he speed of the Bus immediately before the accident. Driving a Bus at a fast speed may or may not be rash and negligent act ipsofacto, but it can also be a rash and negligent act depending upon other variable factors as the condition of the traffic, pedestrian, locality etc. Under section 279 Indian Penal Code what is punishable is the rash and negligent act and not bonafide error of judgment in driving a vehicle or an inevitable accident. If it were not so, then to convict an accused what would have been required to be proved would have been only the fact of the accident. If in the present case the fact that there was no parking space before the school to park the motorcycle and the complainant even then park his motorcycle on the road, if anyone was negligent was the complainant and rash as well if by the act of the complainant, the complainant in a way made the accident to have happened as inevitable.
19.In view of the aforesaid discussion the court is of the opinion that the prosecution has not proved its case beyond reasonable doubt as far as offence under section 279 of Indian Penal Code is concerned.
FIR NO.617/2008, PS ANAND VIHAR Page 11/12STATE VS. AMREESH The accused is also charged with the offence under section 338 of Indian Penal Code for proving which the prosecution has to prove that the grievous hurt was caused to the complainant by the doing of the rash and negligent act of the accused. When the prosecution has not been able to prove that the accused was driving the offending vehicle with which the accident had happened in rash and negligent act, the charge under section 338 of Indian Penal Code against the accused has also to fail.
20.The accused is acquitted of the offences under section 279/338 of Indian Penal Code. VIJAY Digitally signed by VIJAY KUMAR JHA KUMAR Date: 2018.05.01 JHA 15:17:21 +0530 Announced in Open Court (VIJAY KUMAR JHA) on 31.03.2018 Additional Chief Metropolitan Magistrate Shahdara Distt., KKD Courts, Delhi FIR NO.617/2008, PS ANAND VIHAR Page 12/12