Delhi District Court
State vs . Chetan Kumar on 24 May, 2011
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IN THE COURT OF Ms. CHETNA SINGH:MM03(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Chetan Kumar
FIR NO. 165/2001
U/s : 279/304A IPC
P.S. : Vasant Vihar
JUDGMENT
1.FIR No. : 165/2001
2.Date of the Commission of the offence : 05.06.2001
3.Name of the accused : Chetan Kumar S/o Sh.
Lachi Ram R/o C41,
CBI Colony, Vasant
Vihar, New Delhi
(Permanent Address:
Napai Khera PS Saver
District Ajmer,
Rajasthan).
4.Name of the complainant : HC Satbir Singh No.
440/SW, Police Station
Vasant Vihar, New
Delhi.
5.Offence complained of : 279/304A IPC
6.Plea of accused : Pleaded not guilty
FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC
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7.Final order : Acquitted
8.Date of final order : 24.05.2011
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
The story of the prosecution is that on 05.06.2001 at 03:00 p.m in front of Kothi No.10 & 11, Munirka Road, Vasant Vihar, falling within the jurisdiction of Police Station Vasant Vihar, the accused Chetan Kumar was driving the vehicle, i.e, bus bearing number DL1PA5646 in a rash and negligent manner and while driving the said vehicle in such a manner, the accused hit against one scooter bearing number DLSG3102 and caused death of the scooterist.
On the basis of the said allegations, an FIR bearing number 165/2001 under section 279/304A IPC was lodged at Police Station Vasant Vihar on 05.06.2001 at 17:00 hrs. After investigation, chargesheet under section 173 Cr.P.C was filed on 05.10.2002.
On the basis of the chargesheet, a notice for the offence punishable under section 279/304A IPC was framed against the accused Chetan Kumar and read out to the said accused person, to which the accused person pleaded not guilty and claimed trial on 03.04.2003. FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC 3 JUDICIAL RESOLUTION 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.
FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC 4 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 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 FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC 5 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 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 FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC 6 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 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 FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC 7 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: In order to prove the above said allegations against the accused Chetan Kumar, the prosecution has examined following formal witnesses: PW1 Retired SI Lakhi Ram had conducted the mechanical inspection of the bus bearing number DL1PA5646 and scooter bearing number DL9SG3102 in Police Station Vasant Vihar on the request of IO vide mechanical inspection reports Ex.PW1/A and Ex.PW1/B. The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW2 Sh. D.S. Rawat was the owner of the scooter bearing number DL9SG3102 and had took his scooter on superdari vide superdaginama Ex.PW2/A. The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW3 Raj Kumar had given reply to the notice received by him vide Ex.PW3/A and had also released the offending vehicle on superdari vide superdaginama Ex.PW3/B. FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC 8 The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW5 ASI Sudesh Kaushik in her examinationinchief has stated that on 05.06.2001 she was posted as Duty Officer being W/ASI at Police Station Vasant Vihar. She further stated that on that day she recorded the DD No.20A, 21A and 22A on receipt of information. The original DD No.20A is Ex.PW5/A, DD No.21A is Ex.PW5/B and DD No.22A is Ex.PW5/C. The said witness was crossexamined by Ld. Counsel for the accused, but nothing material is found in his cross.
PW7 Retired ASI Satbir Singh in his examinationinchief has stated that on 05.06.2001 he was posted at Police Station Vasant Vihar. The said witness further stated that on that day he was on emergency duty and was informed by PCR vide DD No.29A, copy of which is Ex.PW7/A, that an accident had taken place opposite Air India Colony. Thereafter, he along with Const. Raj Kishore reached the spot where he found one bus bearing number 5646 and one scooter bearing number 3102 in accidental condition. On interrogation it was revealed that the injured was shifted to Vasant Lok Hospital. The said witness further stated that he deputed Const. Raj Kishore at the spot and proceeded to Vasant Lok Hospital where the injured was declared brought dead. He collected the MLC and seized the bus and scooter vide seizure memos Ex.PW7/B and Ex.PW7/C. Notice under section 133 of M.V. Act Ex.PW7/D was FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC 9 served upon registered owner of the bus. The accused was arrested vide arrest memo Ex.PW6/A and personal search of accused was conducted vide personal search memo Ex.PW6/B. The case was registered vide his endorsement Ex.PW7/F. The said witness was crossexamined by Ld. Counsel for the accused, wherein he admitted the suggestion of Ld. Defence Counsel that he did not find any eye witness at the place of occurrence. The said witness also admitted the suggestion that he did not find any eye witness at the spot.
After all the witnesses have been examined, statement of accused under section 313 Cr.P.C recorded. Accused in his statement stated that he has been falsely implicated in the present case.
In the present matter, there are two material witnesses who have been examined by the prosecution, i.e, PW4 Sh. Gulzari Lal and PW6 Sh. Rajender Prasad.
PW4 Sh. Gulzari Lal in his examinationinchief has stated that on 05.06.2001 he was conductor in DTC. He further stated that his duty was on bus bearing number 5646. The said witness further stated that the said bus was being driven by the accused and further stated that when they reached at some distance from Priya Cinema, the offending bus met with an accident with a scooter. The said witness further stated that he does not know how the accident took place, as he was busy in issuing tickets to the passengers. He further FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC 10 stated that the driver of the offending bus took the injured to the hospital in TSR. The said witness further stated that he does not know due to whose fault the accident took place.
As the said witness was resiling from his statement, he was cross examined by Ld. Counsel for the accused, wherein he denied the suggestion of Ld. APP for the State that police had recorded his statement in the present case. He further denied the suggestion of Ld. APP for the State that the accused was driving the bus fast. The said witness further denied the suggestion of Ld. APP that he had told the police that the accident had taken place due to rash and negligent driving of the accused.
The said witness was also crossexamined by Ld. Counsel for the accused, but nothing material is found in his cross.
The deposition of the said witness is not sufficient enough to bring home the guilt of the accused or any of the ingredients of section of offences punishable under section 279/304A IPC.
Now we have to see whether the deposition of PW6 Sh. Rajender Prasad, being eye witness, is sufficient to prove the guilt of the accused or not.
PW6 Sh. Rajender Prasad in his examinationinchief has deposed that he saw the bus bearing number 5646, being driven by the accused Chetan Kumar, coming from Priya Cinema side and it stuck against FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC 11 scooter on its front side. He further deposed that the vehicle was coming from opposite direction and the accident took place on account of faulty driving of the accused. The accused was driving the bus at a very high speed and that there was light traffic and no divider on the middle of the road. He further deposed that the accused did not blow horn to alert the traffic including the scooterist, who was accordingly, hit by the offending vehicle. He further deposed that public persons gathered there to remove the injured to the hospital and the driver/accused person stopped the bus and remained present at the spot. He also deposed that after some time, the accused fled away from the spot and he after coming back from Rahul Gandhi Camp, after about two hours, saw the accused in the company of police officials at the spot and he accordingly, pointed out to the police that the accused person is the same person who had caused the accident. He further deposed that the accused was arrested in his presence vide memo Ex.PW6/A and B and also the driving licence of the accused was seized in his presence vide memo Ex.PW6/C, which bears his signature.
Ld. Counsel for the accused has argued that this witness is a planted witness and has attracted the attention of this court towards the contradiction in the testimony of this witness and the IO.
This court in order to see whether the prosecution has been able to bring home the guilt of the accused under section 279/304A IPC, has to see FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC 12 whether the following three ingredients have been proved by the prosecution: (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.
In the chief, the material eye witness being PW6 Sh. Rajender Singh has deposed that the accused was the person who was driving the offending bus bearing number DL1PA5646 in a very high speed and as he did not blow horn, the accident was caused thereby resulting in the death of the injured/scooterist. However, the mere fact that the material witness is deposing on lines consistent with the story of the prosecution, does not mean that his deposition is sufficient enough to bring home the guilt of the accused. The court cannot disregard the contradictions in the testimony of material witnesses.
PW6 Sh. Rajender Prasad, being the material witness, has been crossexamined at length by Ld. Counsel for accused Sh. O.P. Arya. Though in his chief he has stated that the offending bus was being driven in a high speed, the said witness in his crossexamination by Ld. Counsel for the accused has stated that he does not know at what speed, the offending bus was being driven by the accused. He further deposed that he witnessed the accident from a gap of 20 steps and strangely, still did not call on 100 number. In fact, he deposed that he left the place of accident for going to Rahul Gandhi Camp and while FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC 13 coming back after two hours from Rahul Gandhi Camp, he told the police that he was the eye witness to the accident and was thereafter, arrayed as an eye witness. He further deposed that it is correct that the IO did not ask him as to who was driving the bus in question. He further denied the suggestion of Ld. Defence Counsel that he was not present at the spot at the time of the accident. However, his deposition is not corroborated by PW7 Sh. Satbir Singh, being IO, who has deposed that he reached the spot within 15 minutes and did not find any eye witness at the place of occurrence. He further deposed that when he reached the spot, the injured had already been taken to the hospital and even at the hospital, he did not find any eye witness. He further deposed that he returned to the spot after 30 minutes and when he returned to the hospital, he again did not find any eye witness. This is a material contradiction to the fact that PW6 Sh. Rajender Prasad has been arrayed as an eye witness to the present matter, who deposes that he came back to the spot of occurrence after two hours from Rahul Gandhi Camp and met the IO there. Further, in contradistinction to the PW6 Sh. Rajender Prasad stating that the accused was arrested in his presence, PW7 Sh. Satbir Singh, being the IO, has stated that the accused was arrested at the police station and was arrested at around 11 or 12 p.m. This is again in contradiction to the deposition of PW6 Sh. Rajender Prasad, who stated that the accused was arrested at the spot of occurrence in his presence after he identified the accused in front of police officials. FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC 14 Ld. Counsel for the accused has also argued that there is no explanation as to why the chargesheet was filed in July 2002, when the th accident took place on 5 June, 2001. PW7 Retired IO/ASI Satbir Singh in his crossexamination has admitted that the investigation of the present case was th th completed in two days, i.e, 5 and 6 June, however, the challan was filed in July 2001, as he had met with an accident.
It has further been argued by Ld. Counsel for the accused that the accident took place on account of the injured coming from wrong direction on a one way road and was not on account of faulty driving of the accused.
A perusal of the site plan reveals that the accident was a head on collision with the offending vehicle and the vehicle of the injured. It has been admitted by PW7 in his crossexamination that the scooter was being driven on the wrong side and the offending vehicle was being driven on right side. PW7 further admitted the suggestion that if the scooter driver had been driving the scooter on his proper side, the accident would not have taken place. This further substantiates the arguments of Ld. Counsel for the accused that the accident did not take place on account of rashness driving of the driver of the offending vehicle, but on account of the vehicle of the injured coming from opposite side.
Further, a perusal of Ex.PW6/B and Ex.PW6/A clearly reveal that the name of the material witness, PW6 Sh. Rajender Prasad, has been added later. It is clear on bare perusal of Ex.PW6/C that the ink of the pen with which FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC 15 the name of PW6 Sh. Rajender Prasad has been written, is different from the ink of the pen with which the name of Const. Raj Kishore has been written. This further substantiates that this witness was not present/not available at the time of the occurrence, but added as an afterthought. Same is the case on Ex.PW6/B. This also explains the material contradictions in the testimony of the eye witness PW6 Sh. Rajender Prasad and in the testimony of the IO.
On account of all these contradictions, benefit of doubt has to be given to the accused, as the prosecution has not been able to prove its case beyond a reasonable doubt. Hence, accused Chetan Kumar is hereby acquitted.
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.
ANNOUNCED ON 24.05.2011 (CHETNA SINGH) MM03(South)/24.05.2011 Certified that this judgment contains 15 pages and each page bears my signatures.
(CHETNA SINGH) MM03(South)/24.05.2011 FIR No165/2001 State Vs. Chetan Kumar Under Section:279/304A IPC