Delhi District Court
State vs . Hari Ram on 13 April, 2015
IN THE COURT OF SH. SAURABH PRATAP SINGH LALER
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE(East),
KARKARDOOMA COURTS, DELHI.
FIR NO. 06/12
PS: New Ashok Nagar
Offence complained of : 279/304A IPC
Date of commission of offence : 04.01.2012
Unique Case ID No. : 02400R01087712
STATE Vs. Hari Ram
S/o Sh. Kalwa Singh
R/o Village Padla, PS Chandpur,
District Bijnore, UP . ........... Accused
Sh. Manu Adhikary S/o Sh. Ramchander Adhikary
R/o V.P.O Sheetal Khuchi PS Sheetal Khuchi District
Kuchi Vihar West Bengal.
Delhi. ...........Complainant
Date of Institution : 28.03.2012
Plea of accused : Pleaded not guilty.
Date of reserving judgment/ order : 13.04.2015
Date of pronouncement: 13.04.2015
Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
ALLEGATIONS
The story of the prosecution is that on 04.01.2012 at 12:20
hours behind Nag Arjun Apartment, Nale Ki Patri, in front of Chilla
Regulator, Delhi, falling within the jurisdiction of Police Station New Ashok
Nagar, accused Hari Ram was driving a crane bearing number HR-55N-
2079 in a rash and negligent manner and while driving the said vehicle in
such manner, the accused hit pedestrian Nikhil Adhikhari, because of
which Nikhil Adhikahar fell down on the road and suffered injuries which
resulted into his death. Accordingly, accused is alleged to have committed
FIR No. 06/12 PS: NEW ASHOK NAGAR STATE Vs. HARI RAM PAGE No.1/10
offence u/s 279/304A IPC.
FIR
On the basis of the said allegations and on the complaint of
the complainant Mannu Adhikhari, an FIR bearing number 6/12 under
section 279/304 A IPC was lodged at Police Station New Ashok Nagar on
04.01.12.
CHARGE
After investigation, charge-sheet under section 279/304 A
IPC was filed on 28.03.2012.
The accused was summoned to face trial and he was
supplied the copy of charge sheet as per section 207 Cr.P.C.
On the basis of the charge-sheet, a Notice for the offences
punishable under section 279/304 A IPC was framed against accused Hari
Ram and read out to the said accused person, to which the accused
person pleaded not guilty and claimed trial on 07.01.2013.
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
FIR No. 06/12 PS: NEW ASHOK NAGAR STATE Vs. HARI RAM PAGE No.2/10
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
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. v. 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 "
negligence" 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 in
difference as to the consequences. Criminal negligence is
the gross and culpable neglect or failure to exercise reason
able care and proper precaution imperative to be adopted by
a person to avoid causing of injury to the public or a person
or a individual."
The court would also like to refer to a judgment of the
Honorable Supreme Court of India elaborating further the requirements of
section 304-A of IPC. Quoting from Rathnashalvan v. State of
Karnataka, (SC) 2007 A.I.R. (SC) 1064.
FIR No. 06/12 PS: NEW ASHOK NAGAR STATE Vs. HARI RAM PAGE No.3/10
"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 do
ing 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 im
perative 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 FIR No. 06/12 PS: NEW ASHOK NAGAR STATE Vs. HARI RAM PAGE No.4/10 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 : Ni damorti Nagabhusanam 7 Mad.
HCR 119)".
In order to prove the above said allegations, the prosecution has cited 16 witnesses, of which the complainant ans sole eye witness to the accident is Mannu Adhikhari, who has been cited as PW-1 in eth list of witnesses.
Thus, except PW1 complainant, all the remaining 15 witnesses cited by prosecution are formal witnesses and sufficient only to prove that deceased Nikhil Adhikhari received fatal injuries on 04.01.12.
The complainant and the sole eye witness to the accident PW - 1 Manu Adhikari, deposed that on 04.01.2012, he came to know that his brother Nikhil Adhikari had met with an accident and later died. He went to PS New Ashok Nagar where police officials took his signatures on some blank papers. He further stated that he knows nothing about the present case and he also failed to identify the accused.
This witness was cross examined by Ld. APP for the state as he was resiling from his previous statement. However, in his cross examination by the Ld. APP for the State he deposed as under:
"It is incorrect to suggest that on 14.01.2012 at about 12:20 PM I along with my brother Nikhil Adhikari were coming from NOIDA (UP), Sector 14A and when we reached in front of Chilla Regulator behind Nagarjun Apartment on a crane bearing no. HR55N2079, the driver namely Hari Ram drove the crane at a very fast speed in rash and negligent manner and suddenly took a sharp turn/waived the crane on the left side due to which my brother Nikhil Adhikari who was coming behind me on foot and he fell down on the road as the crane struck him and the front wheel of crane run over him.
It is incorrect to suggest that I along with my contractor Harender Singh took my brother to Kailash Hospital. It is further incorrect to suggest that accident took place due to rash and negligent driving by the accused. It is incorrect to suggest that police officials came at the spot and recorded my statement.
At this stage, statement Ex. PW 1/A bearing signature of witness at point A is read over to the witness at which witness stated that police officials took his signatures on some blank papers and he had not given any such statement to the police. Confronted with FIR No. 06/12 PS: NEW ASHOK NAGAR STATE Vs. HARI RAM PAGE No.5/10 statement Ex. PW 1/A from point A to A1 where it is so recorded. At this stage, attention of the witness is drawn towards the accused and he fails to identify the accused. It is incorrect to suggest that I am not identifying the accused as I have been won over by the accused. It is incorrect to suggest that police official prepared site plan at my instance. At this stage, statement Mark X is read over to the witness at which witness stated that he had never made such statement to the police. Confronted with statement Mark X. It is incorrect to suggest that I am deposing falsely as I have been won over by the accused."
The said witness was cross-examined by ld. Defence Counsel in which the witness admitted that he cannot read and write Hindi language.
Final Order From the testimony of complainant it can be inferred that the said witness was not present at the time of accident and as such he was not able to depose as regards the accident, he has also denied the suggestions of the Ld. APP in this regard. In view of his testimony there is nothing on record to support the story of the prosecution. There is no witness who can depose that the accident took place due to the negligence of the accused. The sole eye witness cited by the prosecution has deposed that he had never seen the accident, thus nothing is left on record for proceeding further with trial.
The accused was arrested on 04.01.2012 and as per statement of complainant u/s 161 Cr.P.C. he had identified the accused as driver of the offending vehicle(crane) . However, during his deposition in the court the complainant never stated that he had identified the accused. The complainant during his deposition stated that accused was not present at the spot and also refuted the suggestions given by the Ld. APP.
Moreover, the complainant has not only denied the suggestions of Ld. APP regarding identity of the accused and rash and negligent driving of accused but also denied that he was present at the spot at the time of incident Thus, prosecution has failed to prove through the testimony of complainant/victim/sole eyewitness that the incident was caused due to FIR No. 06/12 PS: NEW ASHOK NAGAR STATE Vs. HARI RAM PAGE No.6/10 rash and negligent driving of offending vehicle by its driver and that at the time of accident the offending vehicle was being driven by accused. In the opinion of the court, the present case is a fit case where the court should exercise its power under section 258 of Cr.P.C and stop the proceedings qua offences u/s 279/304A IPC as continuing with trial will not only be wastage of state money, rather, it will also be wastage of judicial time and harassment to the accused.
In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation-2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. Section 258, in Chapter XX of Cr.P.C., on Trial Summons - cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, FIR No. 06/12 PS: NEW ASHOK NAGAR STATE Vs. HARI RAM PAGE No.7/10 inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) "30.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596) and Raj Deo Sharma (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 :
1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:-
(1) The dictum in A.R. Antulay's case is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and re-affirm the said propositions. (3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula.
Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Case (I) and (II) . At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused.
FIR No. 06/12 PS: NEW ASHOK NAGAR STATE Vs. HARI RAM PAGE No.8/10 (5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary - quantitatively and qualitatively - by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied) In "Pankaj Kumar v. State of Maharashtra" AIR 2008 SUPREME COURT 3057 (Coram : 2 C. K. THAKKER AND D. K. JAIN, JJ.)the Honorable Supreme Court, while relying upon the aforesaid judgment, observed:
"16. Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" A Registered Society Vs. Union of India (UOI) and Ors., "Common Cause", A Registered Society Vs. Union of India and Ors., Raj Deo Sharma Vs. State of Bihar and Raj Deo Sharma II Vs. State of Bihar gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a seven-Judge Bench of this court in P. Ramachandra Rao Vs. State of Karnataka. Speaking for the majority, R.C. Lahoti, J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the factsituation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgments were held to be not in consonance with the legislative intent." (emphasis FIR No. 06/12 PS: NEW ASHOK NAGAR STATE Vs. HARI RAM PAGE No.9/10 supplied) Accordingly, in the opinion of the court, in the light of the above cited judgments, the court needs to exercise its power under section 258 Cr.P.C qua offences u/s 279/304A IPC to make the ends of justice meet.
Final Order In view of the testimony of complainant/ sole eye witness Manu Adhikari and in the light of the aforesaid discussion and cited judgments, the court while protecting the right of the accused to have speedy justice invokes the power conferred upon it under s.258 of Cr.P.C to stop the proceedings against accused Hari Ram qua offences u/s 279/304A IPC in the present summons police case and hereby releases accused Ravi Bist under sections 279/304A IPC, which shall have the effect of acquittal.
As per section 437-A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the accused shall file fresh personal bond and surety bond in sum of Rs.10,000/- within a week from today.
File be consigned to Record Room.
ANNOUNCED ON 13.04.2015 (SAURABH PARTAP SINGH LALER) ACMM(East)/ KKD/13.04.2015 Certified that this judgment contains 10 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) ACMM(East)/ KKD/13.04.2015 FIR No. 06/12 PS: NEW ASHOK NAGAR STATE Vs. HARI RAM PAGE No.10/10