Delhi District Court
State vs . Laxman on 20 March, 2018
STATE VS. LAXMAN
IN THE COURT OF SH. VIJAY KUMAR JHA, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE (SHAHDARA), KKD
COURTS DELHI.
FIR No.535/2007
PS : Anand Vihar
U/S 279/304 A IPC
Reg. No.79244/2016
State vs. Laxman
a) Serial No. of the case : 02402R057882013
b) Date of Institution : 24.05.2008
c) Date of commission of offence : 18.09.2007
d) Name of complainant : Sh. Ranbir Singh
e) Name of the accused, and : Laxman Singh
parentage and address S/o Sher Singh
R/o 230A, Phase - I,
Nangloi, Delhi.
f) Offence complained of :U/S 279/304 A IPC
g) Plea of the accused :Pleaded not guilty
h) Date of judgment reserved : Not reserved
i) Final order : Acquittal
j) Date of such Order : 20.03.2018
JUDGEMENT
1. The case FIR was registered on the basis of the written complaint of the complainant Ranbir Singh in which the complainant stated that on 08.09.07 at about 5.20a.m, the complainant along with his FIR NO.178/2012, PS Anand Vihar Page 1/13 STATE VS. LAXMAN younger brother Yashbir Singh came to catch a bus at AnandVihar bus stand and when when they were standing on platform counter no.26 at Anand Vihar a blue line bus no.DL1PB3284 route no.85 approached there which was being driven at great speed, rashly and negligently. The rear tire; from the conductor's side of the bus hit the brother of the complainant because of which the brother of the complainant fell down and the rear tire came over the brother of the complainant. The complainant shouted because of which a police Ct. Vijay Bahadur came on spot and apprehended the driver of the above stated bus who disclosed his name as Laxman i.e. accused in the present case. A PCR vehicle also came and the brother of the complainant was taken to Hedgewar hospital. The complainant also accompanied his brother on the PCR on the basis of the above said complaint, case FIR U/S 279/337 IPC was registered. During the investigation the injured Yashbir expired. After the completion of the investigation chargesheet was filed U/ 279/304A IPC.
2. Vide order dated 08.03.2010 notice U/S 251 Cr.P.C was given to the accused for the alleged offence falling U/S 279/304A IPC to which the accused pleaded not guilty and claimed trial.
3. To prove the case, prosecution has examined following witnesses : FIR NO.178/2012, PS Anand Vihar Page 2/13 STATE VS. LAXMAN
1. PW1, Ranbir Singh, who has proved his complaint to the police as Ex.PW1/A, siteplan as Ex.PW1/B, seizure memo of the offending vehicle as Ex.PW1/C and other documents which were seized by the IO during the investigation of the case.
2. Ct. Vijay has been examined as PW1 who has proved the case FIR as Ex.PW1/A.
3. Ct. Vijay Bahadur was examined as PW3 who had apprehended the accused on 18.09.07.
4. Retd. ASI Prakash Singh was examined as PW4 who had got conducted the postmortem on the body of the deceased.
5. ASI Harpal Singh was PW5 who investigated the present case and is the IO.
6. Sh. Gagan Arora was PW6 who was the registered owner of the offending bus to whom the offending vehicle was released.
4. 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 FIR NO.178/2012, PS Anand Vihar Page 3/13 STATE VS. LAXMAN incriminating facts. However, accused did not lead any evidence in defence.
5. I have heard the arguments and perused the record.
6. One of the offences which the accused is alleged to have committed it the offence falling under section 304A of Indian Penal Code i.e. that accused caused the death of Devender Singh by rashly and negligently driving the bus bearing no.DL1PB3284 on 20.03.2005 at about 3.30 pm at G.T. Raod Seelampur.
7. The doing of a rash or negligent act, which causes death, is the essence of section 304 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.
8. 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 FIR NO.178/2012, PS Anand Vihar Page 4/13 STATE VS. LAXMAN 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'. Neither section 279 nor 304A of Indian Penal Code punishes 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.
9. It is the degree of negligence, which really determines whether a particular act would amount to a rash and negligent act as defined under this section. It is only when the rash and negligent act is of such a degree that the risk run by the doer of the act is very high or is done with such recklessness and with total disregard and indifference to the consequences of this act, the act can be constituted as a rash and negligent act under this section. Negligence is the gross and culpable neglect or failure to exercise reasonable and proper care, and precaution to guard against injury, either to the public generally or to an individual in particular, which a reasonable man would have adopted. (See S. N. Hussain v. State of AP AIR 1972 SC 685)
10. In order to impose criminal liability under section 304A of Indian FIR NO.178/2012, PS Anand Vihar Page 5/13 STATE VS. LAXMAN Penal Code, it is essential to establish that death is the direct result of the rash and negligent act of the accused. It must be causa 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)
11.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.
12. In Balachandra Waman Pathe v. State of Maharashtra, 1968 SCD 198. the Supreme Court explained the distinction between a rash and a negligent act in the following manner:
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 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 FIR NO.178/2012, PS Anand Vihar Page 6/13 STATE VS. LAXMAN 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.
13. In the present case the deposition of the witnesses have to be analysed in order to find out if the bus which the accused was driving with which the accident happened and the victim died was being driven by the accused either rashly or negligently in order to fasten the liability of section 304A of Indian Penal Code.
14.The relevant part of the deposition of PW1; Ranbir Singh is:
On 18092007 at about 5.20 a.m. I alongwith my brother Yashvir Singh came at the Anand Vihar Bus Stand to take the bus for Seemapuri. We were standing at plateform and waiting for bus in the meantime, a Blueline bus bearing registration no. DLlPB3284 Route No. 85 reached there on a fast speed and struck with my brother from the conductor side of that bus due to which my brother FIR NO.178/2012, PS Anand Vihar Page 7/13 STATE VS. LAXMAN crushed under the conductor side rear wheels of that bus. The driver of that bus driving the bus in a rash and negligent manner due to which bus hit my brother and caused his death.
15. Exhibit PW1/B is the siteplan. From the siteplan, taking into consideration as to how in actual life a bus takes turn, the siteplan is not making any sense if the deposition of PW1 is considered along with the siteplan Ex. PW1/B. If the deceased was standing along with PW1 on the platform how come the accident occurred at point 'B' in the siteplan Ex. PW1/B and how the deceased was hit by the offending bus from the conductor's side? It is not the case of the prosecution nor it has been deposed to by PW1 that before the offending Bus hit the deceased the Bus had hit the platform also. Ex. MI is the Mechanical inspection report of the offending Bus which interalia mentions, "1. Left side rear down body scratched (near Rear tyres)," though it has not been mentioned in Ex. MI if the scratches were recent or old even then from mechanical inspection report it appears that the offending Bus might have hit the platform before hitting the deceased. Again the said conclusion has to be in the realm of hypothesis only as generally the concrete is used in making the platform and if the Bus is being driven at fast speed and in 'rash and negligent' manner only the scratches would not only be caused but also the body of the Bus would be damaged. Be that as it may the siteplan Ex. PW FIR NO.178/2012, PS Anand Vihar Page 8/13 STATE VS. LAXMAN 1/B and the deposition are not in consonance with each other.
16.One constable Bijay Bahadur has been examined as PW2 who has deposed in his examinationinchief:
On 18.09.2007, I was posted at PS Anand Vihar as constable. On that day my duty was at platform no.26, ISBT Anand Vihar. At about 5.20A.M one blue line bus route no.85 bearing registration no.DL1 PB3284 which was being driven by the driver in a fast speed and negligent manner. There was crowed of people at the platform. The said bus struck against a person and hit by the rear portion of the conductor side and that person came beneath the rear tire of the bus. The public persons raised alarm. I apprehended the driver of the said, bus. On interrogation, he revealed his name as Laxman (correctly identified by the witness). I sent this intimation to PS via telephone. Meanwhile PCR van arrived at spot and the injured Jasvir along with his brother Ranvir was shifted to Headgewar Hospital. IO/HC Harpal came on the spot before whom I produced the driver Laxman Singh. IO directed me to take the keep the custody of accused and he himself proceeded to hospital. After some time at 6:50p.m HC Harpal came back at the spot and gave tehrir to me. I took the tehrir at PS and got FIR registered.
17.From the deposition of PW3, it appears that the accused was apprehended by PW2 immediately after the incident and it has to be in the presence of PW1, But for some reasons not apparent; PW1 who is the brother of the deceased, who at the time of the accident was present at the spot has not at all deposed anything which PW3 has deposed to.
FIR NO.178/2012, PS Anand Vihar Page 9/1318. PW1 in his crossexamination has deposed that, "remained with the IO of this case from 5.00A.M to 7.30A.M on the date of incident. All documents were prepared by IO at Hedgevar Hospital when he recorded my statement." But the arrest memo of the accused Ex. PW1/F bears the time of arrest of the accused at 2.00 PM bearing the signature of PW1. It may also be mentioned as per the deposition of PW1, PW1 had accompanied his brother to the Hedgewar Hospital and did not visit the spot again. In the cross examination PW3 there is the contradiction with respect to preparation of site plan and it is not clear as to how or on whose instance the site plan was prepared. The IO; PW5 has deposed regarding coming to the spot after meeting PW1 in the hospital and making the siteplan Ex. PW1/B bearing the signature of PW
1. But as per deposition of PW1 and PW3, PW1 did not visit the spot again from the hospital. Though IO has deposed, "Thereafter, witness Ranbir Singh came at the spot. I prepared site plan at his instance which is already Ex. PWl/B which bears my signature at point B."
19. The deposition of PW1 is in contradiction to the deposition of PW3 who as per his deposition had apprehended the accused. PW FIR NO.178/2012, PS Anand Vihar Page 10/13 STATE VS. LAXMAN 1 as per his deposition and deposition of PW3 did not return to the spot after PW1 went to the hospital along with his brother. The contradictions in the deposition of PW1, PW3 and the IO of the case; PW5, makes one wonder as to who is speaking the truth and because of the contradictions these witnesses does not appear to be reliable.
20. It may also be noted that as the story of the prosecution is that it was PW3 who apprehended the accused from the spot, the IO did not make any effort to find out from the owner of the offending Bus as to who was the driver on the date of accident. As such there is no corroboration of any kind to the testimony of PW3. Also, it is there is the testimony of PW1 and PW3 that at the time when the accident happen there were many public witnesses available, but it appears that the IO did not make any efforts to join any of the public witnesses. The prosecution did examine the owner of the offending Bus as PW6, but the deposition of PW6 does not appear to be reliable in view of the crossexamination.
On 18.09.2007 I may have 34 buses and 34 drivers were kept on those buses. 34 conductors were also appointed on the abovesaid buses. One helper was also appointed on the abovesaid bus in question. I also maintained register of driver regarding paying them salary. Now I am not having any register in my possession as the matter is 9 years old. I cannot produce any abovesaid register today. Police had recorded my statement. I have told to the IO in my FIR NO.178/2012, PS Anand Vihar Page 11/13 STATE VS. LAXMAN statement that accused Laxman was drivjng the bus on 18.09.2007. I do not remember whether IO had obtained my signature on the statement or not. IO had obtained my signature on some documents but I do not remember those documents. It is correct that in my statement dt. 19.09.2007, name of driver Laxman is not mentioned. (emphasis supplied)
21.It view of the discussion herein above the court is of the opinion that the prosecution has failed to prove beyond reasonable doubt that it was the accused who caused the death of the deceased Yasbir by rash and negligent act in driving the Bus. It may also be stated that the words, 'fast speed, rashly and negligently' does not have an magical effects in so far the proving of the offence under section 304A of Indian Penal Code is concerned. 'Fast speed' is a relative terms and what is a fast speed would vary from person to person. If it is assumed that the accused in the present case was rash and negligent as the accused was driving the Bus at a fast speed at the time of the accident, there is nothing on record to find out as to what actually was he speed of the Bus immediately before the accident. Driving a Bus at a fast speed may or may not be rash and negligent act ipsofacto, but it can also be a rash and negligent act depending upon other variable factors as the condition of the traffic, pedestrian, locality etc. Under section 304A Indian Penal Code what is punishable is the rash and negligent act and not bona fide error of judgment in driving or an inevitable accident. If it FIR NO.178/2012, PS Anand Vihar Page 12/13 STATE VS. LAXMAN were not so, then to convict an accused what would have been required to be proved would have been only the fact of the accident.
22.The accused is also charged with the offence under section 279 of Indian Penal Code and material ingredients of the said section is also rashness and negligence in driving. When the prosecution has failed to prove the offence under section 304A of Indian Penal Code, the court is of the opinion that the charge under section 279 Indian Penal Code has also to fail on the same reasons and logic on which the charge under section 304A of Indian Penal Code has failed against the accused.
23. In view of the aforesaid discussion the accused is acquitted for the offences under section 279 and 304A of Indian Penal Code.
Digitally signed by VIJAY VIJAY KUMAR JHA
KUMAR JHA Date: 2018.04.18
16:25:17 +0530
Dictated & Announced in Open Court (VIJAY KUMAR JHA)
on 20.03.2018 Additional Chief Metropolitan Magistrate
Shahdara Distt., KKD Courts, Delhi
FIR NO.178/2012, PS Anand Vihar Page 13/13