Delhi District Court
State vs . Vijay Kumar on 21 October, 2011
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER METROPOLITAN MAGISTRATE-06 (East), KARKARDOOMA COURTS, DELHI.
FIR No. : 333/01
PS : Preet Vihar
Offence complained of : 279/304 A IPC
Date of commission of offence : 04.07.2001
Unique Case ID No. : 02402R0288242003
STATE Vs. Vijay Kumar
S/o Sh. Ram Gopal
R/o H. No. 40/95, Shanker Nagar, Delhi.
.............. Accused
SI Pawan Kumar, PS-Preet Vihar.
............. Complainant
Date of Institution : 02.07.2003
Plea of accused : Pleaded not guilty.
Date of reserving judgment/ order : 21.10.2011
Date of pronouncement : 21.10.2011
Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
ALLEGATIONS
The story of the prosecution is that on 04.07.2001 at about 9:40 AM at bus stand near nala opposite Jagatpuri, Delhi, falling within the jurisdiction of Police Station Preet Vihar, the accused Vijay Kumar was driving a DTC bus bearing number DL-1PA-6394 in a rash and negligent manner as when Pyare Mohan Mishra was boarding the bus, the accused accelerated the bus without any signal from conductor Dinesh Chand, because of which Pyare Mohan Mishra fell down and came under the wheels of the bus and thereby received injuries which FIR No. 333/01 Page No. 1 / 12 ultimately resulted into his death. Thus, accused Vijay Kumar is alleged to have committed offence punishable under section 279/304-A IPC.
FIR On the basis of the said allegations and on the complaint of the complainant SI Pawan Kumar, an FIR bearing number 333/01 under section 279/304-A IPC was lodged at Police Station Preet Vihar on 04.07.2001.
CHARGE After investigation, charge-sheet under section 173 Cr.P.C was filed on 02.07.2003.
The accused was summoned to face trial and he was supplied the copy of charge sheet as per section 207 Cr.P.C.
On the basis of the charge-sheet, a notice for the offence punishable under section 279/304-A IPC was framed against the accused Vijay Kumar and read out to the said accused person, to which the accused pleaded not guilty and claimed trial on 17.08.2004.
JUDICIAL RESOLUTION To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that to beyond any reasonable doubt. The three essential ingredients are as follows:-
(1)That the accident actually took place.
(2)That the accident took place due to rash and negligent driving. (3)That the accused was the person who was driving the vehicle at the relevant time.
These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Blacks Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by H.L.A.Hart in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an FIR No. 333/01 Page No. 2 / 12 act done negligently.
"[A] careful consideration is needed of the difference between the meaning of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The word 'negligently', both in legal and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash'as doing something that may not be sensible without first thinking about the possible results.
Elaborating further, in State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression " rashness " and " negligence " held as follows :
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but with- out intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper pre- caution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual."
The court would also like to refer to a very recent judgment of the Honorable Supreme Court of India elaborating further the requirements of section FIR No. 333/01 Page No. 3 / 12 304-A of IPC. Quoting from Rathnashalvan v. State of Karnataka, (SC) 2007 A.I.R. (SC) 1064.
"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 follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
As noted above, " Rashness " consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause in- jury. 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 ne- glect or failure to exercise that reasonable and proper care and pre- caution 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.
8. 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 FIR No. 333/01 Page No. 4 / 12 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. HCR 119)".
In order to prove the above said allegations, the prosecution cited 12 witnesses, of which the sole eye witness is the conductor namely Dinesh Chand, who has been examined as PW-1 and superdar is Rajender Prasad who has been examined as PW-3. All the other witnesses are formal witnesses and none of them is a witness to the accident.
PW- 1 Dinesh Chand (Conductor) in his examination-in-chief deposed that he was the conductor of bus running on route no. 211. The said witness deposed that he did not remember the number of bus and he was not able to tell as to who was the driver of the offending bus. He further deposed that the said bus had left the bus stop and while he was busy inside the bus for giving tickets, he was informed by some public persons present outside as well as inside the bus that one person, who was trying to board the bus from the front gate, had slipped and has come under the front wheel of the bus and when he blew the whistle, the bus was stopped and by that time the accident had already taken place. Therefore the said witness did not support the story of the prosecution as regards the rashness and negligence of the accused in driving the vehicle/ bus.
The said witness was cross examined at length by Ld. APP for the state with the permission of court wherein he admitted that the accident took place on 04.07.2001 at about 9:50 AM and the said person had died at the spot. He also admitted that he had called the police and police arrived at the spot, however, he denied all the other suggestions given by Ld. APP. The witness denied that he had FIR No. 333/01 Page No. 5 / 12 told the police that the driver of the bus had started the bus without his whistle while the passengers were still boarding the bus. He also denied that he told the police that one Pyare Mohan Mishra who was boarding the bus from the front gate had fallen down and the rear tyre of the bus had run over the said person and he told the police that the driver of the bus had run away from the bus after causing the accident. He further denied that photographs of the spot were taken in his presence and that he had told the police that the accident had taken place due to rash and negligent driving of the driver of the bus. He further denied his statement mark X which was made to the IO. Thus, the said witness failed to support the story of the prosecution.
PW- 3 Rajender Prasad is the registered owner of offending bus bearing No. DL-1PA-6394, who deposed in his examination-in-chief that he did not know who was the driver of his bus on 04.07.2001 due to lapse of long time. The said witness denied to identify the accused Vijay Kumar to be the driver of the offending bus and therefore did not support the story of the prosecution.
The said witness was also cross examined at length by Ld. APP for the state with the permission of court and he denied all the suggestions given by Ld. APP. He denied that he had stated to the police that his bus was being driven by Vijay on 04.07.01. He further denied that he had received the notice u/s 133 M.V. Act and he had given in writing that his bus was driven by Vijay. He further denied that his statement was recorded by the police and when attention of witness was drawn towards the accused, the witness denied to identify the accused due to lapse of long time. Thus, this said witness also failed to support the story of the prosecution.
In view of the testimony of sole eye witness Dinesh Chand (conductor), nothing incriminating is left against the accused specially with respect to the fact that the accused was driving the offending bus in rash and negligent manner and he had started the bus without the signal (whistle) of the conductor.
FIR No. 333/01 Page No. 6 / 12In view of the testimony of said two witnesses and in absence of any other eye witness either cited or examined, the prosecution can never prove that the offending bus was being driven by accused Vijay Kumar in rash and negligent manner.
Besides these witnesses, one other witness has been examined by the prosecution i.e., PW- 2 Retd. TI Jamuna Dutt.
The remaining witnesses who are yet to be examined by the prosecution are all formal witnesses of which PW- Jeevan Mishra is a witness to dead body identification. None of the remaining witnesses is an eye witness to the accident.
In the present case there is only one eye witness namely PW- 1 Dinesh Chand, who has not supported the story of the prosecution by stating that he had never seen the accident taking place and that the vehicle was not accelerated by the accused when deceased Pyare Mohan Mishra was boarding the bus. No other witness is competent enough to prove the guilt of the accused.
The prosecution, through the oral testimony of the sole eye witness i.e., PW-1 failed to bring forth oral evidence to prove that the accident was caused by the vehicle bearing number DL-1PA-6394, which was being driven by the accused Vijay Kumar in a rash and negligent manner.
In the light of the testimony of PW-1 and PW-3, the testimony of all the remaining witnesses together is insufficient to prove the allegations against the accused qua offences u/s 279/304 A IPC.
At this point the court would like to refer to a judgment of Hon'ble Supreme Court titled Mohammed Aynuddin @ Miyam Vs. State of Andhra Pradesh 2000 II AD (Cr.) SC 784 wherein it has been observed by Hon'ble Supreme Court in para 8 as under :-
"8. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the FIR No. 333/01 Page No. 7 / 12 driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus."
After the said observation the Apex Court in similar facts in the said judgment acquitted the accused after making following observations in para 11:
"11. In the present case the possible explanation of the driver is that he was unaware of even the possibility of the accident which happened. It could be so. When he moved the vehicle forward his focus normally would have been towards what was ahead of the vehicle. He is not expected to move the vehicle forward when passengers are in the process of boarding the vehicle. But when he gets a signal from the conductor that the bus can proceed he is expected to start moving the vehicle. Here no witness has said, including the conductor, that the driver moved the vehicle before getting signal to move forward. The evidence in this case is too scanty to fasten him with criminal negligence. Some further evidence is indispensably needed to presume that the passenger fell down due to the negligence of the driver of the bus. Such further evidence is lacking in this case. Therefore, the court is disabled from concluding that the victim fell down only because of the negligent driving of the bus. The corollary thereof is that the conviction of the appellant of the offence is unsustainable."
In the opinion of the court, the present case is squarely covered by the judgment cited above and a fit case where the court should exercise its power under section 258 of Cr.P.C and stop the proceedings qua offences u/s 279/304-A IPC as continuing with trial will not only be wastage of state money rather it will also be wastage of judicial time and harassment to the accused.
In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials FIR No. 333/01 Page No. 8 / 12 and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation-2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. Section 258, in Chapter XX of Cr.P.C., on Trial Summons - cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution FIR No. 333/01 Page No. 9 / 12 Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) "30.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596) and Raj Deo Sharma (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:-
(1) The dictum in A.R. Antulay's case is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and re-affirm the said propositions. (3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Case (I) and (II) . At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the FIR No. 333/01 Page No. 10 / 12 case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused. (5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary - quantitatively and qualitatively - by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied) In "Pankaj Kumar v. State of Maharashtra" AIR 2008 SUPREME COURT 3077 (Coram : 2 C. K. THAKKER AND D. K. JAIN, JJ.)the Honorable Supreme Court, while relying upon the aforesaid judgment, observed:
"16. Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" A Registered Society Vs. Union of India (UOI) and Ors., "Common Cause", A Registered Society Vs. Union of India and Ors., Raj Deo Sharma Vs. State of Bihar and Raj Deo Sharma II Vs. State of Bihar gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a seven-Judge Bench of this court in P. Ramachandra Rao Vs. State of Karnataka. Speaking for the majority, R.C. Lahoti, J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the FIR No. 333/01 Page No. 11 / 12 Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the factsituation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgments were held to be not in consonance with the legislative intent." (emphasis supplied) Accordingly, in the opinion of the court, in the light of the above cited judgments, the court needs to exercise its power under section 258 Cr.P.C qua offences u/s 279/304-A IPC to make the ends of justice meet.
Final Order In the light of the aforesaid discussion and cited judgments, the court while protecting the right of the accused to have speedy justice invokes the power conferred upon it under S.258 of Cr.P.C to stop the proceedings against the accused Vijay Kumar qua offences u/s 279/304-A IPC in the present summons police case and hereby releases the accused Vijay Kumar under sections 279/304- A IPC, which shall have the effect of acquittal.
As per section 437-A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 21.10.2011.
(SAURABH PARTAP SINGH LALER) MM-06(East)/ KKD/ 21.10.2011 Certified that this judgment contains 12 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) MM-06(East)/ KKD/ 21.10.2011 FIR No. 333/01 Page No. 12 / 12