Delhi District Court
State vs . Sunil Kumar on 3 August, 2011
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IN THE COURT OF Ms. CHETNA SINGH:MM03(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Sunil Kumar
FIR No.463/2004
U/s : 279/337/338 IPC
P.S. : Vasant Vihar
JUDGMENT
1.FIR No. : 463/2004
2.Date of the Commission of the offence : 19.12.2004
3.Name of the accused : Sunil Kumar S/o Sh.
Geetam Singh R/o
House No.7, Om Nagar
Extension, Meetha Pur,
Badar Pur, New Delhi.
4.Name of the complainant : Sh. Sanjay S/o Sh. Jai
Ram Chauhan R/o
Village Sohan Varsha
P.S. Sikandar Pur,
District Baliya, U.P.
5.Offence complained of : 279/337/338 IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted
FIR No463/2004 State Vs. Sunil Kumar Under Section279/337/338 IPC
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8.Date of final order : 03.08.2011
BRIEF STATEMENT OF THE REASONS FOR THE DECISION The story of the prosecution is that on 19.12.2004 at about 01:30 a.m. at JNU Right Point, Munirka Marg, Tpoint, New Delhi, falling within the jurisdiction of Police Station Vasant Vihar, the accused Sunil Kumar was driving the vehicle (Mahindra) bearing number DL1LE0436 in a rash and negligent manner and while driving the said vehicle in such a manner, caused simple injuries to injured namely Sh. Sareen Bhardwaj and caused grievous injuries to complainant Sh. Sanjay.
On the basis of the said allegations and on the basis of the complaint of the complainant Sh. Sanjay, an FIR bearing number 463/2004 under section 279/337 IPC was lodged at Police Station Vasant Vihar on 19.12.2004 at 03:00 a.m. After investigation, chargesheet under section 173 Cr.P.C was filed before the court.
On the basis of the chargesheet, a notice for the offences punishable under section 279/337/338 IPC was framed against the accused Sunil Kumar and read out to the said accused person, to which the accused pleaded not guilty and claimed trial on 30.05.2007. FIR No463/2004 State Vs. Sunil Kumar Under Section279/337/338 IPC 3 JUDICIAL PRONOUNCEMENT 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 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 FIR No463/2004 State Vs. Sunil Kumar Under Section279/337/338 IPC 4 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. vs. Piar Chand, Cr. Ap peal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression " rashness " and " negli gence " 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 without 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 precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a indi vidual."
The court would also like to refer to a very recent judgment of the FIR No463/2004 State Vs. Sunil Kumar Under Section279/337/338 IPC 5 Honorable Supreme Court of India elaborating further the requirements of section 304A of IPC. Quoting from Rathnashalvan v. State of Karnataka, (SC) 2007 A.I.R. (SC) 1064.
"Section 304A 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 304A. 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 injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the conse quences. Criminal negligence on the other hand, is the gross and FIR No463/2004 State Vs. Sunil Kumar Under Section279/337/338 IPC 6 culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public gen erally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imper ative 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 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)"
APPRECIATION OF EVIDENCE: The prosecution, in order to prove the above said allegations against the accused, has examined only one witness namely PW1 HC Surender Singh, who in his examination in chief has stated that on FIR No463/2004 State Vs. Sunil Kumar Under Section279/337/338 IPC 7 19/20.12.2004, he was posted as HC at Police Station Vasant Vihar. The said witness further stated that on that day at about 01.30 p.m. at night he had received a PCR Call vide DD No.4A. Thereafter, he along with Ct. Devender reached at the spot i.e., TPoint, Munirka Marg, Vasant Vihar where he found a Mahindra Pickup bearing no. DL 1LE 0436 in accidental condition which was lying in the Jhuggis of Cooli Camp after crashing with the divider. He further stated that the person present in the spot informed the said witness that the injured persons were taken to the S.J. Hospital. The said witness further stated that he left Ct. Devender at the spot and went to S.J. Hospital and recorded the statement of the injured persons and thereafter, he returned back at the spot and prepared the rukka same is Ex. PW1/A and handed over the same to Ct. Devender for recording the FIR. The said witness further stated that thereafter, he prepared the site plan of the incident which is Ex. PW1/B and he seized the Mahindra Pickup bearing No. DL 1LE 0436, seizure memo of the same is Ex. PW1/C. He further stated that on 28.12.2004 the said witness arrested the accused and got conducted the personal search of the accused vide Ex. PW1/D and E. The said witness further stated that he had also seized D/L of the accused vide Ex. PW1/F. The said witness further stated that after investigation of the case, he filed the chargesheet before the Honourable Court. The said witness also identified the accused during his deposition before the court.
The said witness was crossexamined by Ld. Counsel for the FIR No463/2004 State Vs. Sunil Kumar Under Section279/337/338 IPC 8 accused, but nothing material is found in his cross.
After closing of prosecution evidence, statement of accused under section 313 Cr.P.C was recorded. Accused in his statement has stated that he has been falsely implicated in the present case.
Submissions of Ld. APP for the State and Ld. Counsel for the accused heard.
Considered.
The allegations against the accused is that on 19.12.2004 at about 01:30 a.m. at JNU Right Point, Munirka Marg, Tpoint, New Delhi, falling within the jurisdiction of Police Station Vasant Vihar, the accused Sunil Kumar was driving the vehicle (Mahindra) bearing number DL1LE0436 in a rash and negligent manner and while driving the said vehicle in such a manner, caused simple injuries to injured namely Sh. Sareen Bhardwaj and caused grievous injuries to complainant Sh. Sanjay.
The above said allegation against the accused can only be proved through the oral testimony of the two injured persons namely complainant Sh. Sanjay and another injured namely Sh. Sareen Bhardwaj. Out of two said injured persons, PW/complainant Sh. Sanjay Chauhan has already settled the present matter with the accused and the offence punishable under section 338 IPC has already been compounded vide order dated 15.03.2011. The remaining injured namely Sh. Sareen Bhardwaj has already been dropped from the array FIR No463/2004 State Vs. Sunil Kumar Under Section279/337/338 IPC 9 of witnesses, being untraceable.
In the present matter no eye witness has appeared to give testimony in support of the story of the prosecution.
In absence of the testimony of eye witness to the present case, it is not possible for the prosecution to prove its case.
Hence, benefit of doubt is given to the accused and accused is hereby acquitted.
Fresh bail bonds in the sum of Rs.10,000/ has been furnished and same is accepted vide separate endorsement.
As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room after necessary compliance. ANNOUNCED ON 03.08.2011 (CHETNA SINGH) MM03(South)/03.08.2011 Certified that this judgment contains 9 pages and each page bears my signatures.
(CHETNA SINGH) MM03(South)/03.08.2011 FIR No463/2004 State Vs. Sunil Kumar Under Section279/337/338 IPC