Delhi District Court
State vs . Vijay Kumar Tyagi on 4 April, 2018
STATE VS. VIJAY KUMAR TYAGI
IN THE COURT OF SH. VIJAY KUMAR JHA, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SHAHDARA), KKD COURTS
DELHI.
FIR No. 2/2011
PS : Anand Vihar Rly. Station
U/S 336 IPC
Reg. No. 81107/2016
State vs. VIJAY KUMAR TYAGI
a) Serial No. of the case : NIL.
b) Date of Institution :12.12.2011
c) Date of commission of offence : 17.01.2011
d) Name of complainant : SI Virender Singh
e) Name of the accused, and :Vijay Kumar Tyagi
and parentage and address Police post RPF,
Anand Vihar Railway Station
Delhi.
Permanent Add.Village 690,
Taha Sarai (District) Hapur,
U.P.
f) Offence complained of :U/S 336 IPC
g) Plea of the accused :Pleaded not guilty
h) Date of judgment reserved :04.04.2018
i) Final order :Acquittal
j) Date of such Order :04.04.2018
JUDGEMENT
1. The case of the prosecution as per the charge sheet is that on 17.01.2011 the Investigating Officer received a DD no. 16A after which the Investigating Officer reached at the place of incident i.e. platform no. 1 where FIR NO.2/11, PS Anand Vihar Rly. Station Page 1/7 STATE VS. VIJAY KUMAR TYAGI Ct. Jaivir Singh was already present. Investigating Officer found a bullet mark on the wooden gate of RPF police post. From investigation it was revealed that HC Vijay Kumar i.e. the accused in the present case at the time of cleaning his 303 riffle accidentally fired the riffle. The Investigating Officer got registered the case FIR U/s 336 IPC and after completion of investigation the charge was filed under the aforesaid section of IPC.
2. Vide order dt. 27.05.2016 charge under section 336 IPC was framed against the accused to which accused pleaded not guilty and claimed trial.
3. In order to prove the case the prosecution has examined the witness HC Subhash as PW1 who was present with the accused on 17.1.2011 at RPF post.
4. Ct. Gopal Singh is examined as PW2 in whose presence the accused was arrested and the offence being bailable was released on bail.
5. Ct. Mohit Singh is examined as PW3 who has issued the rifle no. 16721 along with 20 live cartridges to the Hct. Subhash.
6. Retd. HC Om Prakash is examined as PW4 who had registered the case FIR Ex. PW4/B. FIR NO.2/11, PS Anand Vihar Rly. Station Page 2/7 STATE VS. VIJAY KUMAR TYAGI
7. Ct. Rajender Kumar is examined as PW5 who had taken the sealed exhibit to FSL Rohini and had deposited the exhibit there.
8. HC Anurag is examined as PW6 who identified the handwriting and signature of SI Virender Singh and prove the various documents which came into existence during investigation of the present case FIR.
9. Sh. V.R Anand, Assistant Director Ballistics is examined as PW7 who had examined the rifle from which the accused had accidentally fired the bullet and a cartridge whose report is Ex. PW7/A.
10. HC Jaibir is examined as PW8 who had taken the rukka to the PS for registration of FIR and had assisted the Investigation Officer in the investigation of the case.
11. After all the witnesses of the prosecution were examined, accused was examined U/S 313 Cr.P.C. The accused was asked for his explanation with respect to incriminating evidence which has come on record against the accused. The accused denied all the incriminating facts. However, accused did not lead any evidence in defence.
12. I have heard the arguments and perused the record.
13. The doing of a rash or negligent act, putting the life and the FIR NO.2/11, PS Anand Vihar Rly. Station Page 3/7 STATE VS. VIJAY KUMAR TYAGI personal safety of other in danger is the essence of section 336 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.
14. 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'. Section 336 of Indian Penal Code does not punish 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.
15. 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 FIR NO.2/11, PS Anand Vihar Rly. Station Page 4/7 STATE VS. VIJAY KUMAR TYAGI an individual in particular, which a reasonable man would have adopted. (See S. N. Hussain v. State of AP AIR 1972 SC 685).
16. In order to impose criminal liability under section 336 of Indian Penal Code, it is essential to establish that the life and /or personal safety of some person was put in danger as a 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).
17. A rash act is primarily an overhasty act. Negligence is a breach of a duty caused by omission to do something, which a reasonable man guided, by those considerations which ordinarily regulate the conduct of human affairs would do.
18. In Balachandra Waman Pathe v. State of Maharashtra, 1968 SCD 198. the Supreme Court explained the distinction between a rash and a negligent with respect to section 304A IPC act in the following manner which is also applicable in the present case.
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 FIR NO.2/11, PS Anand Vihar Rly. Station Page 5/7 STATE VS. VIJAY KUMAR TYAGI 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 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.
19. The prosecution in order to succeed in proving the offence u/s 336 IPC against the accused is required to prove that on 17.01.2011 the fact that a bullet was fired from service rifle of the accused was either rash or that it was because of the negligence of the accused that the said bullet was fired on the so as to endanger human life and safety of others and no witness of the prosecution has deposed as to how the fact that a bullet was accidentally fired from the service rifle of the accused the same was fired because of rashness and negligence of the accused.
20. The material witnesses are the PW1 and PW3. PW1 has merely stated that PW1 along with accused were filling their respective magazines FIR NO.2/11, PS Anand Vihar Rly. Station Page 6/7 STATE VS. VIJAY KUMAR TYAGI with bullets when the bullet got fired from the rifle while the accused was loading magazine from the rifle. PW3 has merely stated with respect to fact of handing over the service rifle and 20 live cartridge to the accused. In fact the case of the prosecution is that the bullet by the accused was fired 'accidentally' which negates rashness and negligence of the accused.
21. In view of aforesaid discussion the court is of the opinion that prosecution has failed to prove its case against the accused for the offence as punishable under section 336 of Indian Penal Code. Accordingly the accused Digitally signed Vijay Kumar Tyagi is hereby acquitted for said offence. VIJAY KUMAR by VIJAY KUMAR JHA Date:
2018.04.04 JHA Dictated & Announced in Open Court (VIJAY KUMAR JHA) 16:38:23 +0530 on 04.04.2018 Additional Chief Metropolitan Magistrate Shahdara Distt., KKD Courts, Delhi FIR NO.2/11, PS Anand Vihar Rly. Station Page 7/7