Delhi District Court
State vs Umesh Kumar Sahu on 25 July, 2024
IN THE COURT OF SH. MANUJ KAUSHAL
JUDICIAL MAGISTRATE FIRST CLASS-04/CENTRAL: DELHI
STATE VS. UMESH KUMAR SAHU
FIR No. 41/2018
Case No. 654/2019
P.S. : SARAI ROHILLA
U/s 279/427 IPC
Date of institution of case : 14.01.2019
Date on which case reserved for judgment : 14.05.2024
Date of judgment : 02.07.2024
JUDGMENT :
a) Date of offence : 02.02.2018 b) Offence complained of : U/s 279/427 IPC c) Name of complainant : HC Shankar d) Name of accused, : Umesh Kumar Sahu his parentage : S/o Shiv Nath Sahu local & permanent residence R/o:- Lt. Sh. Shiv Nath Sahu VPO Badokhar, PS Churhat, District Sidhi (MP) e) Plea of accused : Pleaded not guilty f) Final order : Acquitted u/s 279/427 IPC BRIEF FACTS OF CASE:
1. Briefly stated it is the prosecution's case that on 02.02.2018 at about 05:30 am, at Tapakna Pull, near metro pillar no. 210, Inderlok Delhi, accused was found driving one container bearing no. HR-55AB-5206 in a manner so rashly or FIR no. 41/2018 State Vs. Umesh Kumar Sahu Page no. 1 of 12 negligently so as to endanger human life and personal safety of others and on the same date, place and time while driving the said vehicle in aforesaid manner, accused damaged the wall and thereby accused committed offence punishable u/s 279/427 IPC.
2. On the basis of material filed along with the charge-sheet, notice u/s 279/427 IPC was framed against the accused vide order dated 30.04.2022 to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 02 witnesses. PW Ct. Rajesh was deleted from the list of witnesses vide order dt. 07.02.2023 as he had passed away. PW Raj Kumar was deleted from the list of witnesses vide order dt. 19.07.2023 as he was unserved through concerned DCP. Further accused has admitted FIR, DD entries and mechanical inspection report vide order dt. 10.10.2023 u/s 294 Cr.P.C.
4. PW1 ASI Shankar Yadav deposed that on 02.02.2018, he was posted as HC at PP Inderlok, PS Sarai Rohilla, Delhi. He further deposed that on that day he was on patrolling duty from 08:00 pm to 08:00 am on Government motorcycle no. DL1-SS-1179 alongwith Ct. Rajesh. He further deposed that at about 05:30 am while they were going from Inderlok Chowk to Tapkana Pull, he saw that one container bearing no. HR55-AB-5206 was coming from the side of Keshav Puram, Delhi in very high speed and while taking left turn on the nala road, it hit against the wall on the side of the road causing damage to the wall. He further deposed that he alongwith Ct. Rajesh took out the driver of the container who disclosed his name as Umesh Kumar Sahu. He further stated that no injury was found on the person of the driver. He further stated that ASI Ashok came to the spot and recorded his statement Ex.PW1/A. He further stated that the IO got FIR no. 41/2018 State Vs. Umesh Kumar Sahu Page no. 2 of 12 the present FIR registered on his statement and prepared the site plan Ex.PW1/B, IO seized the said container vide memo Ex.PW1/C and the documents of said container were seized vide memo Ex.PW1/D. He further stated that the DL of accused was seized vide memo Ex.PW1/E and the accused was arrested vide memo Ex.PW1/F. He further stated that the personal search of accused was conducted vide memo Ex.PW1/G and disclosure statement of accused was recorded Ex.PW1/H. He correctly identified the accused and photograph Ex.P1 (Colly). He was duly cross examined by Ld. Counsel for accused.
5. PW-2 ASI Ashok deposed that on 02.02.2018, he was posted as ASI at PP Inderlok, PS Sarai Rohilla, Delhi. He further deposed that on that day he was on patrolling duty from 08:00 pm to 08:00 am and during his patrolling duty at about 05:40 am, he reached near metro pillar no. 210, Tapakna Pull, near Inderlok Metro Station Delhi where he found HC Shankar and Ct. Rajesh. He further stated that the aforementioned persons were present there alongwith one container make Ashok Leyland trailer colour white and container colour dark red in accidental condition bearing registration number HR-55AB-5206 which had c ollided with a metro wall. Thereafter, he asked HC Shankar about the incident and he narrated him the incident. Then he recorded the statement of HC Shankar Ex.PW1/A and prepared the rukka on the basis of statement of HC Shankar and handed over the same to Ct. Rajesh for registration of FIR. He further deposed that thereafter Ct. Rajesh left the spot and went to PS. He further stated that in the mean time, he prepared the site plan at the instance of HC Shankar Ex.PW1/B. He further stated that after some time Ct. Rajesh came back to the spot with copy of FIR and original rukka Ex.PW2/A and same was handed over to him. He further stated that thereafter he seized the offending vehicle and prepared the seizure memo Ex.PW1/C. He further deposed that he seized all the documents i.e RC, insurance, permit and fitness certificate vide seizure memo Ex.PW1/D. He FIR no. 41/2018 State Vs. Umesh Kumar Sahu Page no. 3 of 12 further stated that he seized the DL of the accused vide seizure memo Ex.PW1/E, arrested and personally searched the accused vide memos Ex.PW1/F and Ex.PW1/G respectively. He further stated that he recorded the disclosure statement of the accused Ex.PW1/H. Thereafter the accused was released on police bail. He further deposed that he came back to the PS with case property and same was deposited in Maalkhana and he recorded the statement of HC Shankar and Ct. Rajesh u/s 161 Cr.P.C. He further stated that he got conducted the mechanical inspection of the offending vehicle through mechanical inspector Arvinder Singh. He correctly identified the accused and the photograph Ex.P1 (Colly). He was duly cross-examined by the Ld. Counsel for the accused.
6. Thereafter PE was closed and matter was fixed for the statement of the accused U/s 313 Cr.P.C. The statement of the accused U/s 313 Cr.P.C was recorded on 29.01.2024 wherein the accused has stated that he was falsely implicated in the present case. He further stated that he wishes to lead DE. Accused did not lead any DE despite several opportunities and DE was closed vide order dt. 07.03.2024 and the matter was fixed for final arguments.
7. Ld. APP for the State submits that the testimony of the witnesses proves the guilt of the accused beyond reasonable doubt. Hence it is submitted that the prosecution has been able to prove its case beyond reasonable doubt. Per Contra, Ld. Counsel for the accused has argued that the accused has been falsely implicated in the present matter and the prosecution has not been able to prove its case beyond reasonable doubt.
8. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the benefit of doubt, if any, FIR no. 41/2018 State Vs. Umesh Kumar Sahu Page no. 4 of 12 must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
"i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any less.
ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt."
9. In the present case the accused has been charged with the offences punishable U/s 279/427 of IPC. Firstly, let us proceed to examine whether the prosecution has been able to prove that the accused has committed an offence punishable U/s 279 IPC. Since the accused has been charged with the offence under Section 279 of the Indian Penal Code, 1860, it was for the State to prove that:
a) that the accused was driving a vehicle on a public way;
b) he was driving the vehicle in a rash and negligent manner; and
c) he was driving the vehicle in such a manner so as to endanger human life, or to be likely to cause hurt or injury to any other person.
10. This being the factual, evidentiary and the legal position, let us proceed to examine whether the prosecution has been able to successfully prove the guilt of the accused beyond reasonable doubt. In order to adjudicate upon the culpability of the accused, it has to be seen from the evidence brought on record FIR no. 41/2018 State Vs. Umesh Kumar Sahu Page no. 5 of 12 whether the act of the accused would fall within the ambit of "rash or negligent act". Hon'ble Apex Court in the case of Rathnashlvan vs. State of Karnataka (2007) 3 SCC 474 while dealing with the expression "rash and negligent" has observed, inter alia, as under-:
"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.
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 FIR no. 41/2018 State Vs. Umesh Kumar Sahu Page no. 6 of 12 the charge has arisen it was the imperative duty of the accused person to have adopted."
Further, the Hon'ble Apex court, in the case of Mrs. Shakila Khader v. Nausher Gama (see: AIR 1975 SC 1324), while discussing the factors to be taken into account while adjudicating upon the "rashness or negligence" has observed the following:
"6. The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic and the attempt, as in this case, to overtake the other vehicles resulting in going to the wrong side of the road and being responsible for the accident. Even if the accident took place in the twinkling of an eye it is not difficult for an eye-witness to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle travelling on that side of the road."
11. In the present case, the prosecution has only examined PW-1 ASI Shankar Yadav who is stated to be the eye-witness of the incident. PW-1 has stated that on the date of the incident he was on a patrolling duty. He has further stated that he saw one container bearing no. HR55-AB-5206 coming from the side of Keshav Puram in a very high speed and it hit against a wall on the side of the road causing damage to it. He correctly identified the photographs of the container Ex. P1 (Colly.) and the accused. In his cross-examination PW-1 had admitted that there were some public persons present at the spot. He further admitted that he did not ask the public persons to join the investigation. PW-2 ASI Ashok is the IO of the present case and arrived at the spot after the incident.
12. In the considered opinion of this court, the mere statement of the witness that the accused was driving the vehicle very high speed is not sufficient FIR no. 41/2018 State Vs. Umesh Kumar Sahu Page no. 7 of 12 to impute "rashness or negligence". Further, no photographs of the spot i.e. alleged damaged wall has been placed on record by the prosecution from which inference of negligence or rashness could have been drawn against the accused. The burden was on the prosecution to show from the testimony of the victims that the conduct of the accused was such that it can be safely concluded that the act of the accused was carried out without reasonable care or circumspection.
13. Further, it is pertinent to mention that admittedly there were public persons present at the spot however, no public persons was asked to join the investigation. No plausible reason has been specified for non-joining of the public witnesses. This Court is mindful of the fact that the public persons might have been reluctant to join the investigation however, the investigating officer should have atleast made an attempt to join the public persons by serving notice however, nothing in this regard has been done.
14. In view of the above observations, this Court is of the opinion that the testimony of PW-1 has not been sufficiently corroborated. Accordingly, the prosecution has failed to prove beyond reasonable doubt that the accused was driving his vehicle in a rash and negligent manner beyond reasonable doubt. Hence the accused is acquitted of the offence punishable U/s 279 IPC.
15. Now lets proceed to examine whether the accused can be held liable for offense punishable U/s 427 IPC. Section 427 IPC punishes mischief. Mischief is defined in Section 425 IPC. Section 425 IPC states as under:
Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, cause the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its FIR no. 41/2018 State Vs. Umesh Kumar Sahu Page no. 8 of 12 value or utility, or affects it injuriously, commits "mischief". Explanation 1 It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
Explanation 2 Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.
16. From a bare reading of Section 425 IPC it is apparent that in order to constitute an offence U/s 425 IPC the prosecution is required to prove that the accused did the act with the intention or knowledge that he is likely to cause wrongful loss or damage to public or any person. It is itself the case of prosecution that the accused was driving the vehicle rashly or negligently. Rashness or negligence does not have element of intent or knowledge. No evidence is otherwise available on judicial record to suggest that the accused had either intention or knowledge that he was likely to cause damage to public or any other person. At this stage this Court deems it fit to refer the judgment of Hon'ble Kerala High Court in Rajesh R Vs. State of Kerala Crl. MC. No. 3975 of 2013 dated 20.08.2014 wherein it was held as under:
"12. Now coming to Section 425 IPC, it is evident that mischief, like most crimes, comprises a mental and physical element. If a person causes wrongful loss or damage to public or any property or destroys or diminishes its value or utility or affects it injuriously with an intend to cause damage or destruction or knowing that he is likely to cause damage or FIR no. 41/2018 State Vs. Umesh Kumar Sahu Page no. 9 of 12 destruction to the property, he is said to commit the offence. On reckoning the allegations in Annexure-A4 final report, it can be seen that the prosecution has no case that the petitioner intentionally dashed the vehicle on an electric post erected by the side of the road. Then what is remaining to be considered is whether he drove the vehicle rashly or negligently knowing that he is likely to cause wrongful loss or damage to public property. Whether it is attributable to a person, who rashly or negligently drives through a public road, with the knowledge that he is likely to cause danger to human life or damage or destruction of property? It is the legal requirement that any person driving a vehicle on a public road is expected to take due care and attention to avoid or avert a possible danger or damage to life or property. Still, if such person, unmindful of the consequences, drives a vehicle rashly or negligently, can it be said that he knew the possible consequences of his action? True, a person driving or riding on a public way is expected to be alive and attentive to the realities like the density of population in the area through which he is driving, nature of the vehicle that he is driving, speed at which the vehicle is being driven, the condition of the road, whether he drives the vehicle at rush hours, weather condition at the time of driving, that is to say, rain, fog, etc. is affecting his visibility or increasing the possibility of error of judgment, etc. Mere speed alone may not be a criterion to find that a person was driving or riding on a public way rashly or negligently. The above mentioned realities perceivable while driving on a public road makes the driver/rider responsible for his act. But still, there is a clear cut distinction in law between an act done rashly or negligently on one hand and an act done with intention or knowledge of its consequences on the other hand. The expressions FIR no. 41/2018 State Vs. Umesh Kumar Sahu Page no. 10 of 12 'intention' and 'knowledge' occur at many parts of the Penal Code. In the context of culpable homicide and murder defined in Sections 299 and 300 IPC respectively, the Supreme Court in Basdev v. State of Pepsu (AIR 1956 SC 488) and in later decisions has clearly held that intention and knowledge are two different things. Knowledge in this context means the awareness of consequences. I have already elaborated as to what is the legal meaning of the terms 'rashness' and 'negligence'. Both in rashness and negligence, there is no mental element to commit an offence. A rash act, though done with utter disregard to the consequences, cannot be said to be done with an intention or knowledge. Actually a man doing so does not intend to produce the result that eventually happens later on account of his action. Likewise, he does a rash or negligent act without the real knowledge as to what will happen as the outcome of his act. It is indisputable that mischief is an offence done by the offender either with intention or with the knowledge that it is likely to cause damage or destruction to property. Hence, conceptually and in reality, the offences of rash or negligent driving on a public way and causing mischief by such an act cannot go together. "
17. In view of the above observations, since the prosecution has not been able to show that the accused caused the destruction of the property with the intention or knowledge that he was likely to cause wrongful loss or damage. Therefore, the accused is acquitted of the offence punishable U/s 427 IPC.
18. In view of the foregoing discussion, this Court is of the opinion that the prosecution has not been able to prove its case beyond reasonable doubt therefore, the accused is acquitted for the offences punishable U/s 279/427 IPC.
FIR no. 41/2018 State Vs. Umesh Kumar Sahu Page no. 11 of 12
19. Original documents, if any, be returned to the entitled parties and also any endorsement on the documents be cancelled.
20. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT TODAY ON 25th JULY 2024 (MANUJ KAUSHAL) METROPOLITAN MAGISTRATE-04 CENTRAL DISTRICT : TIS HAZARI COURTS DELHI FIR no. 41/2018 State Vs. Umesh Kumar Sahu Page no. 12 of 12