Delhi District Court
State vs Madan Mohan Bhatt on 19 September, 2023
IN THE COURT OF SANKALP KAPOOR, METROPOLITAN
MAGISTRATE-06, DWARKA COURTS, NEW DELHI
DLSW020076452016
CNR No.DLSW020076452016
Cr. Case No.430455/2016
FIR No.859/2015
PS: Dwarka North
U/S:279/337/304A IPC
State Vs. Madan Mohan Bhatt
JUDGMENT
A. Sl. no. of the case : 430455/2016
B. Date of institution : 12.07.2016
C. Date of offence : 23.10.2015
D. Name of the complainant : Yogender Singh s/o Umed Singh
R/o Flat no. 88, Shri Awas (L&T)
Apartments, Sector-18, Dwarka,
New Delhi.
E. Name of the accused : Madan Mohan Bhatt s/o late Sh.
Shankar Dutt
R/o Flat no. 257, Atulya Apartment
Sector -18, New Delhi.
FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.1 of 28
F. Offence complained of : U/S 279/337/304A IPC
G. Plea of accused : Pleaded not guilty
H. Final order : Convicted
I. Date of such order : 19.09.2023
___________________________________________________________ BRIEF STATEMENT OF REASONS FOR DECISION:-
1. The wheels of criminal law in this case were set into motion on the basis of DD number 32A and 37A both dated 23.10.2015 at PS Dwarka North in view of which the enquiry was marked to SI Ashok Kumar who went to the hospital upon receipt of the DD entries.
Thereafter, the FIR bearing registration number 859/2015 was registered at the PS.
2. In short, prosecution case as alleged against the accused is that an accident was caused on 23.10.2015 infront of Vijay Veer Awas Society, Sector 18B, Dwarka due to rash and negligent driving of the accused Madan Mohan Bhatt who was driving vehicle bearing registration number DL-2CAA-9259. It is alleged that the said car driven by the accused in the aforesaid manner hit the motorcycle of the deceased Amen Khan who was driving motorcycle bearing registration number RJ-02FS- 9587 which inturn hit one scooty bearing registration number DL-9SAM- 5396 and thereby caused the death of injured Amen and caused simple injury on the body of one Yoginder Singh. It is alleged that the motorcycle of the deceased as well as scooty of the injured were damaged in the FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.2 of 28 accident and the car driven by the accused was also damaged and its bumper fell on the road.
3. After receiving the FIR Police registered a case, investigated the matter. After completion of investigation, police submitted charge sheet against the accused for the offence under Section 279/337/304 (A) Indian Penal Code, 1862 (hereinafter for brevity 'IPC').
4. Accused was summoned after taking cognizance. Copy of relevant documents was furnished to him as required under Section 207 Criminal Procedure Code, 1973 (hereinafter for brevity 'CrPC'). Particulars of offences u/s 279/337/304(A) IPC were explained to the accused on 06.08.2016 to which he pleaded not guilty and claimed trial.
5. The accused vide separate statement recorded under Section 294 CrPC dated 05.01.2018 admitted the following documents:
i. MLC number 908/2015 of Injured Yogender of Bensups hospital, Dwarka (exhibited as Ex. P/A/1), ii. MLC number 909/2015 of Injured Amin Khan of Bensups hospital, Dwarka (exhibited as Ex. P/A/2), iii. Post Mortem report number 1446/2015 of deceased Amin Khan (exhibited as Ex. P/A/3), iv. FIR number 859/2015 dated 23.10.2015 PS Dwarka North (exhibited as Ex. P/A/4), and v. DD numbers 32A and 37A both dated 23.10.2015 (exhibited as Ex. P/A/5 and P/A/6 respectively).
Upon the admission of the accused qua the execution of the said documents, the witnesses namely Dr. Sheraz, CMO Bensups hospital, Dwarka Sector 12, Dr. Parth Joshi, JR, Department of Forensic Medicine DDU hospital, Hari Nagar, DelhiDO/ ASI Karan Singh were dropped from the list of witnesses being admitted.
FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.3 of 28
6. In support of the case prosecution examined as many as nine oral witnesses:
i. PW-1, Mr. Yoginder Singh (eye-witness and injured), ii. PW-2, Mr. Santosh (eye-witness and 100 number caller), iii. PW-3, Mr. Mubeen Khan (dead body identifier), iv. PW-4, Mr. Rujdar Khan (dead body identifier), v. PW-5, SI Ashok Kumar (first IO of the case), vi. PW-6, Mr. Mustaq Khan (superdar of vehicle bearing registration number RJ-02FS-9587), vii. PW-7, Mr. B.R.Arora (owner/superdar of offending vehicle bearing registration number DL-2CAA-9259), viii. PW-8, HC Anil (Photographer Crime team), and ix. PW-9, SI Roshan Lal (Second IO of the case).
7. The seizure memo of motorcycle of deceased bearing registration number RJ-02-FS-9587 was exhibited as Ex. PW-1/B, seizure memo of bumper with number plate bearing registration number DL-
2CAA-9259 Ex.PW-1/C, seizure memo of scooty of injured bearing registration number DL-9SAM-5396 was exhibited as Ex. PW-1/D, seizure memo of number plate bearing number DL-9SAM-5396 was exhibited as Ex. PW-1/E, and seizure memo of offending vehicle bearing registration number DL-2CAA-9259 was exhibited as Ex. PW-1/F. Furthermore, the mechanical inspection reports of vehicles bearing registration numbers RJ-02FS-9587, DL-9SAM-5396 and DL- 2CAA-9259 were exhibited as Ex. PW-5/2, Ex. PW-5/3 and Ex. PW-5/4 respectively.
8. The plea of defence is of denial. Statement of the accused was recorded under Section 313 CrPC. The accused stated in his statement under Section 313 CrPC that he has been falsely implicated in the instant case and that the accident had occurred due to negligence of the deceased and the injured only. However, defence adduced no evidence despite FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.4 of 28 opportunity.
9. Heard arguments from both sides. Perused the entire evidence on record. I have also considered the statement of the accused person recorded under section 313 CrPC.
10. Points For Determination: Now points for consideration are:
i. For the offence under Section 279 IPC Whether on 23.10.2015 at 4.15 P.M. in front of Vijay Veer Awas, Sector 18B, Dwarka New Delhi within the jurisdiction of PS Dwarka North the accused person was driving the vehicle bearing No. DL-2CAA-9259?
If so, whether he drove the vehicle in such a manner which was dangerous to human life and personal safety of others?
ii. For the offence under Section 337 IPC Whether on same date place and time the injured namely Yoginder Singh suffered simple injury on his body due to the rash and negligent driving of the accused?
iii. For the offence under Section 304A IPC Whether on same date place and time the deceased namely Amin Khan died due to the rash and negligent driving of the accused?
11. Discussion, decision and reasons therefor:
a) Now, I will move forward to discuss and appreciate the prosecution evidence on record qua the point number i. It is found from the entire evidence on record that PW-1 Sh. Yogender Singh who is also an injured in the case saw the driver on the road at the time of accident driving the offending vehicle Maruti Esteem. Furthermore, PW-2 Sh.
Santosh who was an eye-witness to subsequent conduct/ fact after the incident has also identified the accused as driver of the offending vehicle.
FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.5 of 28 PW-7, Sh. B.R.Arora also testified before the court that the Maruti Esteem car bearing registration number DL-2CAA-9259 is registered in the name of his company and that the accused had taken the said vehicle upon request for two days. PW-7 further accepted that he had given a reply to the police against notice under Section 133 of MV Act wherein he had stated that the accused was driving the vehicle on the date of the incident. This fact was also put to the accused when his statement was recorded u/s 313 CrPC. When he was asked about the accident, then he replied that he was the driver of the ill-fated car, but he denied the fact that he drove the vehicle rashly and negligently. So from the answer given by the accused I have found that he did not deny the fact regarding his driving of the offending vehicle at relevant point of time.
Furthermore, no such suggestion was given by the Ld. defence counsel during the entire cross examination of the prosecution witnesses that accused was not the driver of the car which caused the accident. Considering the conduct of the defence and the answer given by the accused u/s 313 CrPC and the evidence of the witnesses as discussed hereinabove, I have found that no one except the present accused was the driver of the Esteem car bearing registration number DL-2CAA-9259 which caused the accident at the place occurrence. So the first part of point number (i) is proved against the accused beyond doubt.
b) Now, coming on to the second part of point number i, as well as point number ii. The vital ingredient of section 279 IPC and Section 304(A) IPC is rash or negligent driving. In this regard, I have gone through the testimony of prosecution witnesses. One witness i.e., Yoginder Singh who is also an injured saw the accident at very material point of time, he was examined as PW-1. He deposed that on the date of FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.6 of 28 occurrence i.e., on 23.10.2015 at about 04:15 PM he was returning to his home from mother dairy booth situated inside Kargil apartment (Vijay Veer Awas apartment) on his scooty bearing registration number DL- 9SAM-5396. He further deposed that while on the way he was waiting at the cut situated on the road infront of Kargil apartment (Vijay Veer Awas apartment) and was waiting to cross the road. He deposed that in the meanwhile, one motorcycle overtook him from his left side and at that very time one Esteem car coming from the other side of the road hit the said motorcyclist and due the collision of the vehicles resulted in impact on his scooty also, whereupon he fell on the road along-with his scooty. He duly conceded that due to the suddenness of the impact he was unable to see whether the motorcycle of the deceased or the esteem car had hit him. He further deposed that he sustained injury in his right hand due to the impact. He further deposed that the motorcycle and the motorcyclist also got dragged up to the divider after the incident and the head of the motorcyclist also hit against the divider after the incident due to which he suffered head injury. He further deposed that the driver of the esteem car stopped the vehicle after some distance and came back at the spot. He further deposed that the accused helped the injured motorcyclist and shifted him to Bensups hospital in his vehicle. He further deposed that he also went to Bensups hospital after taking the rickshaw and in the hospital he came to know that the motorcyclist had expired. He further deposed that he left from Bensups hospital as his treatment was not being done properly. He further deposed that after taking first aid at Ayushman Hospital he came back where he met the IO and the IO called him to the PS to record his statement.
In his cross-examination by Ld. defence counsel PW-1 deposed that at the time of the accident he was standing near the divider of FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.7 of 28 the road, for crossing the road and the offending vehicle was coming from his left side. He further deposed that the deceased was crossing the road from the gap in the median, from the right hand side of the offending vehicle, when he was hit. He further deposed that at the time of the collision he was still waiting for the road to be clear of traffic, so that he can cross the road safely. He further deposed that there is a hedge on the divider of the road near the spot and if a person of medium height would be coming from the other side he can easily see the traffic on the other side of the hedge. He further deposed that there is no red light, yellow light blinker or zebra crossing at the spot where the deceased was crossing the road. PW-1 further denied the suggestion that the accident occurred due to the fault of the deceased.
PW-2, Sh. Santosh who is also a public witness to the incident deposed that on the date of the incident he was selling vegetables at his patri shop when he heard a loud noise whereupon he reached the spot and saw that the bumper of one esteem car had fallen on the divider. However, a perusal of the testimony of PW-2 clearly establishes that he had not seen the incident, rather was a witness to the facts subsequent to the fact in question.
In the light of above facts and circumstances of the case, what would amount to rash and negligent act is of paramount consideration. It is stated by the PW-1 (eye-witness) that he was standing with his scooty at the cut opposite Kargil apartment when the deceased overtook him from the left side and in the meanwhile he was hit by the offending Esteem car which was also coming from the left side. The PW-1 in his cross-examination has clearly deposed that there was no red light or blinking light where the deceased was taking cut from, however what FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.8 of 28 needs to be appreciated is that in his cross-examination itself he has also deposed that it was not the rash or negligent act of the deceased which had resulted in the accident. I have gone through the testimony of the witnesses and the site plan (exhibited as Ex. PW-5/B). The car was coming from the left side and knocked the deceased. Other witness particularly PW-2 reached the spot immediately after the knock. He found the injured body of the deceased Amin Khan. PW-2 deposed that when he reached the spot, he saw the place of the accident. He further deposed that the bumper of the car had fallen on the divider. PW-2 reached the spot right after the incident and at that time the Maruti car had stopped and the driver of the Maruti car came outside the car and shifted the injured in the maruti esteem car. PW-1 in his cross-examination has clearly deposed that any individual of medium height would be able to see past the hedge on the other side of the road, thus it cannot be outrightly denied that the accused could not have seen the deceased crossing the road.
A perusal of the mechanical inspection report of the vehicle of the deceased's reveals that the motorcycle was also got damaged severely. The left side of the motorcycle including the leg guard was damaged very badly as per the mechanical inspection report.
PW-3 and PW-4 only deposed regarding the collection of dead body after the PM and identification of the dead body of Amin. The police seized the vehicles as aforesaid and PW-1 had put signature upon the seizure list.
PW-1 is the informant, eye-witness of the incident and prime witness of the prosecution. The post-mortem report of the dead body of Amin Khan also shows stain of blood in both nostrils, around mouth and FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.9 of 28 ear. Fractures base of skull was also revealed in post mortem examination. Subarachnoid haematoma was present over fonto-temporo-parietal region of the brain. As per the PM report the cause of death was opined to be head injury. Considering the post mortem report I have found that the cause of death is due to head injury. The cause may be attributed to forceful hit caused by the car as a result of which the deceased suddenly fell down on the road or hit his head at the divider of the road and due to sudden forceful hit against the hard surface of the road the parietal region of the head of the deceased sustained severe injury and haematoma was also found by the Doctor. It was stated by PW-1 that the motorcycle and the motorcyclist got dragged upto the divider after the incident. So it is found from the evidence that due to severe hit to the left side of the motorcycle the rider suddenly fell down on the hard divider of the road as a result, his left side of head sustained severe injury and according to expert this injury caused the death.
PW-1 clearly stated that the deceased was coming on his left side. The site plan was exhibited as Ex. 5/B. I have gone through it. From the site plan it is found that deceased was coming from east to west direction on the left side of the PW-1. The car was also coming from the left side on the other side of the road and the said car knocked him. Therefore, evidence given by PW-1 is believable one and other witnesses also particularly PW-2 saw the dead body on the road. According to PW-1 dead body was on the divider. So considering the fact and circumstances and comparing with the medical evidence, I have found that due to sudden hit the deceased fell down on the hard surface of the road and due to such hit he sustained severe injury on the left parietal region. According to Doctor Death was caused due to head injury. In cross examination of all FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.10 of 28 witnesses Ld. Defence counsel gave suggestion that deceased tried to cross the road from left side where there was no cut or red light or blinker. In this regard it is pointed out by Ld. defence counsel that the deceased was crossing the road from a place where there was no zebra crossing or red light and the accident happened due to the negligence of the deceased only. Ld. defence counsel has also vehemently argued that PW-1 in his cross-examination has clearly stated that he was waiting for the road to be clear of traffic, so that he can cross the road safely, thus showing that the deceased himself was negligent in his driving. The road from which deceased was coming is also situated on the right side of the road on which the accused was driving. Therefore, it is clearly pointed out by the Ld. defence counsel that the deceased was crossing the road from the divider where there was no specific place and no red light and thus resulted in the accident. However, PW-1 denied the suggestion given by the Ld. Defence counsel that deceased tried to cross the road without taking proper care for which the accident took place. In present case at hand such evidence is not established. Defence also failed to adduce such kind of evidence in support of their claim. However, this court is of the view that the attendant circumstances need to be seen to arrive at a finding to draw as to whether the accused was driving the vehicle rashly and negligently.
PW-1 in his testimony has clearly deposed that anyone coming from the other side and of a medium height would be able to see anyone coming from the other side of the road. A perusal of the photographs of the spot and the vehicle of the injured and deceased on record would also reveal that the effect of collision was such that all the three vehicles were severely damaged. Furthermore, as per the mechanical FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.11 of 28 inspection report the scooty of the injured and motorcycle of the deceased was not in a working condition after the incident. Photographs of the spot as well as testimony of PW-2 clearly reveal that the bumper of the offending vehicle was at the divider. PW-1 deposed in his examination that the effect of the collision was such that the deceased's motorcycle first hit him and then was dragged onto the divider. Thus, even though none of the witness deposed regarding the speed of the offending vehicle and manner in which it was being driven, the attendant circumstances clearly show that the offending vehicle was in a considerably high speed resulting in inter alia the breaking of the bumper, dragging of the deceased. Moreover, the deposition of PW-1 and PW-2 clearly shows that the Maruti esteem car was stopped 'after some distance' thus depicting that it must have been in speed resulting in the driver applying the brakes and to stop the vehicle at a distance. However, this court cannot lose sight of the fact that the photographs of the spot do not show any tyre marks and signs on the road.
c) Rash and negligent driving of the accused driver is the vital point to book him under section 279 IPC or section 304(A) IPC. There is no dispute in bar regarding the accidental death of the deceased Amin Khan. It was not denied by the defence. Regarding rash or negligent driving Hon'ble Supreme Court in the case of Ravi Kapur Vs State of Rajasthan (AIR 2012 SC 2986) observed as follows:
"10. In order to examine the merit or otherwise of contentions (b) and (c) raised on behalf of the Appellant, it is necessary for the Court to first and foremost examine (a) what is rash and negligent driving; and (b) whether it can be gathered from the attendant circumstances. Rash and negligent driving FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.12 of 28 has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 Indian Penal Code. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated Under Section 279 Indian Penal Code is attracted.
11. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.13 of 28 considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence.
12. The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.
13. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur.
FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.14 of 28 This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the Indian Penal Code that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road accidents. 'Culpable rashness' is acting with the consciousness that 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 consciousness (luxuria). '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 FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.15 of 28 exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's 'An Exhaustive Commentary on Motor Vehicles Act, 1988' (First Edition, 2010]."
Again in the case of Naresh Giri Vs. State of M.P. (2008) 1 SCC 791Hon'ble Supreme court discussed section 304(A) IPC as follows:-
"Section 304-A Indian Penal Code applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 Indian Penal Code. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements Under Section 304-A."
FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.16 of 28 In case of State of Karnataka Vs Muralidhar ( 2009) (3) UJ SC 1228) Hon'ble Supreme court further discussed the negligent act u/s 304 (A) IPC as follows:
"6. Section 304 A speaks of causing death by negligence. This section applies to rash and negligence acts and does not apply to cases where death has been voluntarily caused. This section obviously does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death. It only applies to cases in which without any 9 such intention or knowledge death is caused by what is described as a rash and negligent act. 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 reasonble 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 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 Prosecutions (1937) AC 576 at p. 583 - 2 All E.R.
552) observed as under: "Simple lack of care such as will constitute civil liability is not enough. For FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.17 of 28 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 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.
7. Section 304 A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. 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 FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.18 of 28 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 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.
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 injury either to the public generally or to circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.
FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.19 of 28 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 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 that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection." (See In re: Nidamorti Nagabhusanam 7 Mad H.C.R.119)".
In case of Ravi Kapur Hon'ble Supreme court further discussed the negligent act as follows:
"What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edn) Vol 34 Para 1 (p.3) as follows -
'General principles of the law of negligence
-Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the 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 FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.20 of 28 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 consequences. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably 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 owned 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 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 the demonstrable relation of cause and effect between the two.' According to the dictionary meaning "reckless" means "careless", regarding or heedless or 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 to him that FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.21 of 28 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."
The Supreme Court in case of Md. Ainuddin vs-State of Andhra Pradesh 2007 SCC 72 discussed the principle of 'res ipsa loquitur' as under:
"9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.
18. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.22 of 28 be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as:
The event would not have occurred but for someone's negligence.The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event.
Accused was negligent and owed a duty of care towards the victim."
FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.23 of 28 In case of Nageshwar Shri Krishna Ghobe vs State of Maharashtra( 1973) 4 Hon'ble Apex Court observed that:-
"The statements of the witnesses who met with an accident while travelling in a vehicle or those of the people who were travelling in the vehicle driven nearby should be taken and understood in their correct perspective as it is not necessary that the occupants of the vehicle should be looking in the same direction. They might have been attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. The Court held as under:
"6. In cases of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own pre-occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom - and it is only a matter of coincidence - that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.24 of 28 also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the matter, whatever be the reason for this disinclination. If, however, they do feel interested in going to the spot in their curiosity to know something more, then what they may happen to see there, would lead them to form some opinion or impression as to what in all likelihood must have led to the accident. Evidence of such persons, therefore, requires close scrutiny for finding out what they actually saw and what may be the result of their imaginative inference. Apart from the eyewitnesses, the only person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like the present is the driver himself or in certain circumstances to some extent the person who is injured. In the present case the person who died in the accident is obviously not available for giving evidence".
In present case at hand the accused admitted himself as the driver of the ill-fated car. In the case of Ravi Kapur vs State of Rajasthan (supra) Hon'ble Supreme Court observed that "it is true that the prosecution is required to prove its case beyond reasonable doubt but provisions of section 313 Code of Criminal Procedure are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.25 of 28 law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing of the case".
12. In present case at hand the accused admitted that he drove the vehicle and he left the vehicle at a place which is far away from the place of occurrence. Therefore, it is found that he drove the vehicle and according to eye witness he knocked the deceased in such a manner which ultimately caused the death as because deceased fell down on the hard surface of the road and his left parietal region sustained severe injury and blood clot was also found by the doctor for which he succumbed to his injuries on the spot. The left side of the motorcycle of the deceased was badly damaged as stated by eye witness. This damage reflected the speed of the vehicle which smashed the motorcycle. So the high speed of the vehicle was liable for the accident. The accused failed to perform his duty on the road by which he violated the rights of the other road users including pedestrian and bicycle riders.
13. The Hon'ble Apex Court in above mentioned cases clearly stated that when the driver failed to perform his duty properly it will be a cursor that for his negligence the accident took place. In present case at hand defence side miserably failed to prove any contributory negligence on the part of the deceased. The Ld. counsel for defence nowhere pleaded FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.26 of 28 in his defence or cross-examination of the witnesses that the deceased was not wearing a helmet or protective gear at the time of the incident and thus the same resulted in head injury.
14. Though Ld. Defence counsel gave several suggestions to establish the fact that deceased crossed the road from the right side without taking proper care, but such suggestions were vehemently denied by PW-1 and PW-1 clearly stated that the accident did not occur because of the negligence of the deceased. Ld. defence counsel has alleged that the deceased was negligent in crossing the road from the median where there is no red light or blinker installed but this fact was not proved during the evidence. Defence also failed to establish this fact by adducing any reliable evidence from their side. They also failed to create any stigma of doubt regarding contributory negligence. Furthermore, in entire cross examination the ld. defence counsel has not put any question as to whether deceased was wearing a helmet as the time of incident or not. So it is found that due to rash and negligent driving of the accused accident took place and Amin Khan died on the spot and his motorcycle was also damaged severely. So rash and negligent driving is proved against the accused beyond all reasonable doubt. From medical evidence it is found that due to head injury Amin Khan died. So it is clearly concluded that death of the deceased Amin Khan was caused by the rash driving of the accused.
15. Furthermore, with regard to the simple injury that occurred on the person of PW-1, this court is of the view that though PW-1 in his cross-examination has deposed that he did not know as to which vehicle had hit him due to the suddenness of the same, however, considering the fact that the accident as discussed hereinabove had been initiated due to FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.27 of 28 the very act of the accused and the MLC of the injured Yoginder clearly mentions that he had suffered simple injury. Thus, this court is of the view that injury occurred to PW-1 is the result of rash and negligent driving of the accused himself, accordingly making him liable for the offence under Section 337 IPC.
16. So second aspect of point number (i), (ii) and point number
(iii) are proved against the accused beyond all reasonable doubt. Accused is found guilty for the offences u/s 279/337/304(A) IPC.
17. Convict be heard separately on the quantum of sentence.
18 Copy of judgment be supplied to the convict free of cost.
Announced in the open Court Digitally signed by SANKALP SANKALP today i.e. on 19.09.2023. KAPOOR Date:
KAPOOR 2023.09.19 16:33:41 +0530 (Sankalp Kapoor) Metropolitan Magistrate-06 South West/Dwarka Court/New Delhi FIR No. 859/2015 State Vs. Madan Mohan Bhatt Page no.28 of 28