Delhi District Court
State vs Ashok on 15 July, 2014
IN THE COURT OF SHRI ARVIND BANSAL
METROPOLITAN MAGISTRATE (SOUTH-EAST) -05
SAKET COURTS : NEW DELHI
JUDGMENT
FIR No.: 130/01 Police Station: Sarita Vihar I D No. 02403R0286442003 U/s 279/338 IPC.
State Versus Ashok
s/o Sh. Satbir Singh
r/o Z-441/B, Sec. 12, Noida, UP.
.... Accused
(a) Date of Institution: 19.09.2001
(b) Date of Offence: 06.04.2001
(c) Plea of accused: Pleaded not guilty and claimed trial
(e) Argument heard and
reserved for order: 23.06.2014
(f) Final Order: Acquitted u/s 279/338 IPC
(f) Date of Judgment: 15.07.2014
Brief Statement of reasons for decision of the case:
1. In a nutshell, case of the prosecution is that on 06.04.2001 at about 9:00 am under flyover, Sarita Vihar, New Delhi within the jurisdiction of PS Sarita Vihar, accused was found driving bus bearing no. DL1P 5701 in a rash and / or negligent manner and as a result thereof, hit against Smt. Alizabeth & Abdul Kalam and caused them grievous injuries and thereby committed an offence punishable U/s 279/338 IPC. FIR was got registered on the statement of Smt. Alizabeth. Statements of witnesses were recorded and finally, upon completion of necessary investigation, charge sheet u/s 173(2) Cr.P.C. was FIR No. 130/01, PS Sarita Vihar State vs. Ashok Page no. 1 of 9 presented to the Court against the accused for trial.
2. Pursuant to appearance of the accused, he was supplied the copy of charge sheet / documents in compliance of section 207 Cr.P.C. and matter was listed for arguments on charge. Upon hearing the arguments advanced at bar by learned counsel for the parties and on perusal of the judicial file, prima facie case against the accused for the offence punishable u/s 279/338 IPC was found to be made out. Notice u/s 251 Cr.P.C. was separately served and explained to the accused to which he pleaded not guilty and claimed trial.
Matter was then listed for Prosecution Evidence (PE).
3. In order to substantiate and prove its case against the accused, prosecution examined ten witnesses.
PW1 Raj Anand proved the mechanical inspection reports of vehicle bearing no. DL1P 5701 and scooter bearing no. DL3S N 7833 as Ex. PW1/A & Ex. PW1/B respectively.
PW2 Abdul Kalam testified that on 06.04.2001, he along with his colleague Alizabeth was going on scooter bearing no. DL3S N 7833 for checking papers of 10th class. At about 9 am when they reached under the flyover of Sarita Vihar, a bus bearing no. DL1P 5701 driven by accused in a rash and negligent manner came from towards the side of Noida and hit against the scooter. As a result thereof, he along with Alizabeth fell down. Accused stopped the bus and came near them but when many persons gathered, he fled away from the spot. He deposed that they were shifted to hospital by PCR officials where his statement was recorded. He received multiple fracture on his chest and ribs.
FIR No. 130/01, PS Sarita Vihar State vs. Ashok Page no. 2 of 9 PW3 SI Pankaj Malik proved present FIR No. 130/01 as Ex. PW3/A. PW4 Alizabeth reiterated the assertions made by PW2. She also proved her statement as Ex. PW4/A. She correctly identified the accused in the Court. The witness was duly cross examined.
PW5 Ratan Singh testified that on 06.04.01, he received DD No. 13B from Duty Officer and took the same to spot and handed over the same to IO.
PW6 ASI Mangez Singh testified that on 06.04.01, he was posted at PCR van Eagle-29 and one urgent call was received from Police Control Room regarding an accident under the flyover of Sarita Vihar. There, they found a bus and a scooter in accidental condition and took two injured persons to AIIMS Hospital.
PW7 SI Vijay Pal is the IO who testified that on 06.04.01 at about 9:11 am, he received DD No. 9B regarding an accident and he along with Ct. Sohan Pal reached the spot where he found a bus bearing no. DL1P 5701 and a scooter bearing no. DL3S N 7833 in accidental condition. The injured had already been removed to AIIMS Hospital by PCR. In the meantime, he also received DD No. 13B from Ct. Ratan. He went to AIIMS Hospital along with Ct. Sohan Pal and left Ct. Ratan at the spot. He found two injured in the hospital and recorded statement injured Alizabeth and prepared Rukka Ex. PW7/A. Same was handed over to Ct. Sohanpal for registration of FIR. He went back to spot along with complainant where he prepared site plan Ex. PW7/B at her instance. In the meantime, Ct. Sohan Pal returned with copy of FIR and owner of bus Rajesh Chauhan also came to spot. He served Notice u/s 133 M. V. Act Ex. PW7/C to owner who replied the same and also FIR No. 130/01, PS Sarita Vihar State vs. Ashok Page no. 3 of 9 produced the driver who was identified by complainant. IO seized both the vehicles vide seizure memos Ex. PW7/D & E respectively. Accused was arrested and personally searched vide memos Ex. PW7/F & G respectively. Driving License of accused was seized vide memo Ex. PW7/H. Vehicles were got mechanically examined and result of MLC was collected. He recorded statement of witnesses and filed chargesheet before the Court.
PW8 Shahid Hassan proved Superdarinama of two wheeler scooter as Ex. PW8/A. PW9 Dr. Lallan Kumar appeared on behalf of Dr. S. Vijaya Kumar. He proved MLC of injured Abdul Kalam as Ex. PW9/A and stated that he can identify the signatures of Dr. S. Vijaya Kumar.
PW10 Rajesh Chauhan is the owner of offending vehicle and proved his reply to Notice u/s 133 M. V. Act as Ex. PW10A. Accused did not dispute the identity of vehicle. On request of Learned APP for State, Prosecution Evidence was closed.
4. In his statement recorded u/s 313 Cr.P.C., accused denied the prosecution case in its entirety and pleaded innocence and false implication. He stated that at the time of incident, his signal was green while the scooter came from Apollo side which was 'No Entry Zone'. However, accused chose not to lead defence evidence.
5. I have heard Sh. Shiv Kumar-II, learned APP for the State and Sh. Yudhisthir, learned counsel for the accused at length. I have also carefully perused the entire judicial record.
FIR No. 130/01, PS Sarita Vihar State vs. Ashok Page no. 4 of 9 Appreciation of Evidence
6. It is the case of the prosecution that the accused who was driving the offending bus, negligently omitted to take care and guard against any probable danger arising out of the said driving and thereby, caused grievous injuries to two person riding on a scooter as a result of his rash or negligent act.
It is argued on behalf of the prosecution by the learned APP that prosecution has proved the necessary ingredients on the charged offence through the testimonies of PW2 & PW4 who are the eye witnesses to the alleged incident. It is stated that the identity of vehicle is not disputed and therefore it is also not in dispute that it was the accused who was driving the offending bus. It is, thus, stated that the case stands proved and the accused deserves to be convicted.
Per contra, it is argued by the defence counsel that prosecution has failed to prove the alleged offence against the accused since there are material deficiencies in the testimonies of two injured / eye witnesses. It is stated that benefit of deficiencies must be given to accused and he must be acquitted of the alleged offence.
7. To prove the offence punishable U/s 279/338 IPC, the prosecution is required to prove the following mandatory ingredients : (i) The rash or negligent act / driving which is likely to cause hurt or injury to any other person; and (ii) that the said rash or negligent act / driving of the accused was the proximate cause of the injuries suffered by victim / injured.
At this stage, it is relevant to quote the following observations of Hon'ble Supreme Court in case titled Rathnashalvan v. State of Karnataka AIR 2007 SC 1064 while dealing with a case of rash and negligent driving:
FIR No. 130/01, PS Sarita Vihar State vs. Ashok Page no. 5 of 9
7. ...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.(underlining added)
8. 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 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. In the case at hand, the prosecution has examined two eye-witnesses to prove the necessary ingredients of charged offence against the accused.
The injured Abdul Kalam while deposing as PW2 stated that while his scooter reached under the flyover of Sarita Vihar, the offending bus which was coming from Noida side in a rash and negligent manner, hit against his scooter as a result of which he and Alizabeth suffered injuries. PW4 Alizabeth deposed on the similar line except the fact that she stated bus was coming from Okhla side.
This is the only part of testimony of both the witnesses which they narrated before the Court regarding the rashness or negligence of the accused while driving the offending bus. The witnesses have not specified either the speed of their scooter or the speed of the bus at the time of accident. The witnesses also kept silent during their examination regarding FIR No. 130/01, PS Sarita Vihar State vs. Ashok Page no. 6 of 9 the flow of traffic and the crowd on the road. The only circumstance explained by both the witnesses regarding the manner of driving of the accused is that the bus was being driven in a 'rash and negligent' manner. There is nothing in the testimonies of both the witnesses as to how was the driving of the bus driver was rash and / or negligent in the circumstances on the road at that particular time. Merely because an accident took place between the two vehicles, does not mean that the driver of bus be imposed with rashness or negligence in his driving at that particular time. The prosecution must prove criminal rashness or negligence on the part of accused / driver by a clear and convincing testimony of the injured or eye witnesses which is not the case at hand. The testimonies lack in a definite explanation of the manner in which the bus was being driven and whether due to that manner a culpability can be attached to the same.
The aforesaid observations of the Court are fortified by the following observations of Hon'ble High Court of Punjab & Haryana in case titled as Dr. Ajit Kaur Vs. State of Punjab (1986-1) 89 Punj LR 87 at P 89:
"A remote nexus is not enough. For the purpose of criminal law, there are degrees of negligence and a very high degree of negligence is required to be proved before a charge can be sustained under this section. Reasonable foresight is the criterion of negligence. In case of negligence, the person accused does not do an act which he is bound to do. Mere negligence is not enough to bring a case within the ambit and scope of this section. Negligence or rashness proved by evidence must be such as should carry with it a criminal liability. Criminal rashness is hazarding, a dangerous act with the knowledge that it is so and that may cause an injury. There is a breach of positive duty."
9. It is the defence of accused during cross examination of PW4 that the road on which the scooter was being driven was a 'No Entry Zone' and therefore, negligence cannot be attributed to the manner of driving of accused but to the scooter driver. PW4 denied the suggestion that she did not know FIR No. 130/01, PS Sarita Vihar State vs. Ashok Page no. 7 of 9 whether there was no entry of the road or not. To decide the aspect of rashness or negligence in the present matter, the site plan explaining the positions of both the vehicles and the status of roads is a material document.
As per site plan Ex. PW7/B, the road on which the scooter was being driven was a 'service road under the flyover'. The scooter was being driven on the service road and the had to go straight while the bus had to pass from under the flyover towards Ashram side. It is apparent from the site plan and the testimony of both the witnesses that it was Sarita Vihar flyover that was meant for going straight from Ashram to Badarpur and 'service road' appears to be one carved out basically for commuters intending to go from Ashram towards Noida. Thus, the offending bus was being driven correctly on its road route, however, the scooter, for unknown and undisclosed reasons was being driven under the flyover.
The place of accident as shown in the site plan is the extreme right side of the service road and it was highly unusual for the scooterist to drive on that side of the road while there was ample opportunity to see the bus coming from the other side. In such circumstances, the defence raised by accused appears probable and version of prosecution appears lacking in proving the rash or negligent driving of the accused.
16. It is the basic principle of criminal law that in order to hold an accused guilty of an offence, all the ingredients of that offence should be established against him beyond reasonable doubt and the burden upon accused is not so onerous and the standard expected of him is that of preponderance of probabilities.
In the case at hand, though the factum of accused driving the offending bus is admitted, the prosecution failed to prove beyond reasonable doubt that the manner of driving the bus was rash or negligent and it was FIR No. 130/01, PS Sarita Vihar State vs. Ashok Page no. 8 of 9 only due to this particular manner of driving that the two vehicles collided. The facts brought on record do not connect the accused with the injuries suffered by both the injured and thus, leaving behind a scope of reasonable and justified doubts. The accused is certainly entitled to the benefit of the deficiencies and doubts in the case of prosecution.
17. Accused Ashok is accordingly, acquitted of the offence u/s 279/338 IPC.
Announced in the Open
Court on 15.07.2014 (ARVIND BANSAL)
METROPOLITAN MAGISTRATE
(SOUTH-EAST)-05
SAKET COURTS, NEW DELHI
FIR No. 130/01, PS Sarita Vihar State vs. Ashok Page no. 9 of 9