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Delhi District Court

State vs . Ajmal Khan on 8 January, 2013

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   IN THE COURT OF Ms. CHETNA SINGH:MM­02(SOUTH DISTRICT)
                 SAKET COURTS COMPLEX, NEW DELHI


STATE  Vs. Ajmal Khan
FIR No.60/05
U/s :  279/427 IPC
P.S. : Malviya Nagar


                                JUDGMENT

1.Sl. No. of the case       :      111/02

2.Date of the Commission    :      23.01.2005
of the offence
3.Name of the accused       :      Ajmal Khan S/o Sh. Salim Khan
                            :      R/o H. No. T­12, Ward No. 8, Mehrauli,
                            :      New Delhi.

4.Name of the complainant   :        Arjun Mandal s/o Late Sh. Rajeshwar 
                            :        Mandal r/o H. No. D­205, Bidisha 
                            :        Apartment Plot No. 79, Parparganj, I.P. 
                            :        Extension, New Delhi.

5.Offence complained of     :      279/427 IPC

6.Plea of accused           :      Pleaded not guilty

7.Final order               :      Convicted

8.Date of final order       :      08.01.2013
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BRIEF STATEMENT OF THE REASONS FOR THE DECISION

1. The story of the prosecution is that on 23.01.2005 at about 2.00 P.M. near Red Light, Old M.B. Road, Lado Sarai, New Delhi, the accused Ajmal Khan was found driving vehicle bearing no. DL­3CY­5557 on the public way in a rash and negligent manner thereby hitting Indica car bearing no. DL­3CAF­3203 and damaged the same and committing offences punishable under section 279/427 IPC.

2. On the basis of the said allegations and on the basis of the complaint of the complainant Arjun Mandal, an FIR bearing number 60/05 under section 279/427 IPC was lodged at Police Station Malviya Nagar.

3. After investigation, charge­sheet under section 173 Cr.P.C was filed on 18.05.2005.

4. On the basis of the charge­sheet, a charge for the offence punishable under section 279/427 IPC was framed against the accused person namely Gopal and read out to the said accused person, to which he pleaded not guilty and claimed trial on 03.08.2006.

Appreciation of evidence

5. In order to prove the above said allegations against the accused Ajmal Khan, the prosecution has examined 6 witnesses. 3

6. Out of the 6 witnesses examined, PW­1 HC Suresh Kumar who is a formal witness proved the copy of FIR vide Ex. PW­1/A and his endorsement on the rukka Ex. PW­1/B.

7. PW­2 Arjun Mandal deposed that he had been doing the job of driving with Sh. Amit Pandey at Patparganj. On 23.01.05 he was going from Sainik Farm to Airport in the Indica car bearing no. DL­3CAF­3203 belonging to his master Amit Pandey. At about 2.00pm when he reached near the cut leading towards Lado Sarai and stopped the car by the side of the road and was going to pass urine in the nearby bush after giving indicators. However, at that time one Mahindra Jeep No. DL­3CY­5557 came at a very high speed and struck into his car from the right side, due to which his car fell into the Nala by breaking about 2 and 1/2 feet wall in between his car and Nala and the offending jeep got turtled at the spot itself. He further deposed that 15­16 people were sitting inside the Mahindra Jeep and instead of caring for his car he opened the back door of mahindra jeep and he took out the all the persons from mahindra jeep. His statement was recorded vide Ex. PW­2/A. Both the vehicles were seized vide seizure memo Ex. PW­2/B and C. Accused was arrested and his personal search was conducted vide Ex. PW­2/D and E and the DL of the accused was also seized vide memo Ex. PW­2/F. 4

8. This witness was cross examined by Ld. counsel for the accused wherein he stated that regarding the damage his employer/owner of the vehicle had taken insurance claim. He further deposed that he had parked his car with the parking lights on and thereafter he had gone to urinate. At this stage, the witness had been confronted with the statement Ex. PW­2/A where it was not so recorded. He further deposed that in statement Ex. PW­2/A it was not mentioned that his car went towards the drain after breaking a wall of height 2­2 1/2 feet after being hit by the offending vehicle. He further deposed that he could not tell the exact width of the road however, the road on their side was not less than 40 feet wide. He further deposed that at the time of incident there was no jam. He denied the suggestion that while he was going to urinate his back was towards the car and due to this reason he could not have seen the vehicle coming from behind and could not also see the manner in which the vehicle was being driven. He denied the suggestion that some unknown vehicle had hit the jeep as well as his car due to which the jeep turn down and his car was pushed on one side. He further deposed that the site plan was prepared by the police according to the position of vehicles at the site after the incident. He denied the suggestion that when the accident took place he heard the sound and thereafter he turned and saw that the jeep had turned down and 5 thereafter he tried to help the occupants of jeep. He denied the suggestion that he did not notice any vehicle before the accident as his back was towards his car or that he had illegally parked his vehicle in a dangerous manner on the road without taking any precaution. He further denied the suggestion that no accident took place with the jeep or that the accused was not driving the jeep in question or that he made a false complaint involving the jeep so as to get claim from the insurance company.

9. PW­3 Kulbir Singh deposed that on 23.01.05 he was posted as Ct. at PP Saket, PS Malviya Nagar and joined the investigation with ASI/IO Brahm Prakash. On receiving a call they went to M.B. Road near red light where one Indica car bearing no. DL­3CAF­3203 and jeep bearing no. DL­3CY­5557 were found in an accidental condition. The statement of complainant Arjun Mandal was recorded which is already Ex. PW­2/A. On the basis of which he prepared rukka mark X and handed over the same for registration of case. He came back at the spot after registration of FIR and handed over copy of FIR and rukka to the IO. Both the vehicles were taken into the possession separately vide seizure memo already Ex. PW­2/B and C respectively. The accused was present at the spot. Accused was arrested. Arrest memo and personal search memo were prepared vide EX. PW­2/D and E respectively. The DL of the accused was taken into possession vide 6 memo already Ex. PW­2/F.

10. The said witness was cross­examined by Ld. Counsel for the accused wherein he stated that he reached the spot by private vehicle at 2.00pm however, he does not know the number of vehicle. When he reached the spot 3­4 public persons were present. The statement of those persons were not recorded. He stayed at the spot near about 30­40 minutes. The distance between the spot and PS were about 1 Km. He denied the suggestion that he had not joined the investigation with the IO or that IO obtained his signature in the PS. He further deposed that the IO returned to the PS after one and half hour. He denied the suggestion that the heavy traffic ply on M.B. Road at any point of time. He further denied the suggestion that the accused has been falsely implicated in the present case or that he had falsely implicated the accused in the present case. He further denied the suggestion that all the documents were signed by him in the PS at the instance of the IO.

11. PW­4 Shadi Lal being the mechanical inspector deposed that on 24.01.2005, he conducted the mechanical inspection of the vehicle i.e. Indica Car bearing no. DL­2CAF­3203 and Mahindra Jeep No. DL­3CY­5557 and his detailed report is Ex. PW­4/A and B.

12. The said witness was cross­examined by Ld. Counsel for the 7 accused wherein he denied the suggestion that manipulated reports have been prepared to implicate the accused without actually examining the vehicle.

13. PW­5 SI Brahm Prakash stated on 23.01.2005 he was posted at PP Saket, PS Malviya Nagar as ASI. He further deposed that on receipt of DD no. 10, he along with Ct. Kulvir went to the spot i.e. old M.B. road, Lado Sarai where they found one car bearing no. DL­3CAF­3203 (Indica car) and jeep bearing no. DL­3CY­5557 in an accidental condition. The statement of complainant Arjun Mandal was recorded which is already Ex. PW­2/A. On the basis of which he prepared a tehrir which is Ex. PW­5/A and got the case registered through Ct. Kulvir who came back at the spot after registration of FIR and handed over copy of FIR and original Tehrir to the IO. He prepared the site plan which is Ex. PW­5/B. Both the vehicles were taken into the possession separately vide seizure memo already Ex. PW­2/B and C respectively. The accused was present at the spot. Accused was arrested. Arrest memo and personal search memo were prepared vide EX. PW­2/D and E respectively. The DL of the accused was taken into possession vide memo already Ex. PW­2/F. Both the vehicles were mechanically examined. He further deposed that nobody in the incident got injured so there was no need for any medical treatment. He recorded the statement of witnesses 8 and after completion of formal investigation challan was presented before court through SHO.

14. The said witness was cross­examined by Ld. Counsel for the accused wherein he stated that he reached the spot at about 2.30pm and stayed there for about 2 and half hour. When he reached the spot there was no public persons present. He further deposed that the huge traffic was there on the road in question but there was no traffic jam. He had not recorded the statement of passenger of the alleged jeep. He denied the suggestion that the complainant Arjun Mandal refused to give statement for the first time or that road in question was a hilly area but it is a forest area. He denied the suggestion that during the investigation he came to know through the passengers of the jeep that one unknown vehicle hit the car in question and after that also hit on the right side of the jeep and due to the this accident took place. He denied the suggestion that the accused has been falsely implicated in the present case or that after verification of the documents of the jeep and at the instance of the owner of the car he had falsely implicated the accused in the present case with the intention to help the owner of the car to get claim from the insurance. He denied the suggestion that no proper investigation conducted by him in this case. He denied the suggestion that all the proceedings were done at the PS at the 9 instance of the owner of the car. He stated that no TIP of the accused was conducted. Vol. As the accused was apprehended at the spot itself so there was no need of TIP.

15. PW­6 Sh. Amit Pandey deposed that he was the owner of vehicle bearing no. DL­3CAF­3203 make of Indica V­2. The case property i.e. vehicle is Ex. P­1. On 23.01.2005 his car was being driven by his driver Arjun Mandal and accused is working with him from the year 2000 to till date. He got released his vehicle on superdari vide Ex. PW­6/A.

16. The said witness was cross­examined by Ld. Counsel for the accused wherein he stated that no statement was recorded by the police.

JUDICIAL RESOLUTION To bring home the guilt of accused as regards rash and negligent driving, three things need to be proved by the prosecution 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 10 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 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 11 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. Appeal 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 knowl­ edge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rash­ ness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution impera­ tive 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 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 12 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 reck­ lessness or indifference as to the consequences. Crimi­ nal negligence on the other hand, is the gross and cul­ pable 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 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)".

17. For proving the guilt of the accused u/s 279 IPC, it has to be proved the vehicle was being driven in a rash and negligent manner. The factum of rashness has been substantiated by the oral testimony of PW­1 Arjun Mandal who is the complainant and who deposed that while his car was parked on the side of the road with the indicators on, the accused hit his car while driving Mahindra Jeep no. DL­3CY­5557. He further deposed that the same was being driven in a high speed as a result of which it hit his vehicle and the same got damaged. He further deposed that as a result of hitting, his vehicle jumped and partly fell in the Nala. The factum of accident has also been substantiated by the site plan Ex. PW­5/B which shows point A to be the spot of accident. Point B is shown to be the place where the damaged car bearing no. DL­2CF­3203 was found damaged with the back portion and the rear wheels in the Nala. Point C is shown to be the place where the offending vehicle i.e. Mahindra Jeep was found after the accident. The damage has further been substantiated by the mechanical inspection report which is Ex. PW­4/A which shows damages on both doors on the right side and damaged rear left wheel, bumper and chassis. It has further been noted that after the accident the vehicle is no longer roadworthy as one tyre has been damaged and the rear wheels have been jammed.

18. Thus it is clear that the oral testimony of PW­1 has been 15 corroborated by the documents such as site plan and mechanical inspection report. Coupled with this, there is testimony of other official witnesses also. It is clear that the impact was such that a substantial damage was caused to the vehicle of the complainant. It has also not been denied by the accused in his statement recorded u/s 313 Cr.P.C. that he was driving the Mahindra Jeep no. DL­3CY­5557 at the time of accident.

19. Thus, the court is satisfied that all the the ingredients of section 279 IPC have been proved by the prosecution beyond doubt.

20. Section 427 IPC prescribes punishment for mischief resulting into damage to the amount of Rs. 50/­ or upwards. Section 425 IPC defines mischief. This section necessitates three things:

1. Intention or knowledge of likelihood to cause wrongful loss or damage to public or to any person.

2. Causing the destruction of some property or change in it or in its situation.

3. Such change must destroy or diminish its value or utility or affect it injuriously.

21. A perusal of the ingredients of section 425 IPC revealed that the necessary intention or knowledge to cause wrongful loss or damage to the public or to any person is necessary for conviction u/s 427 IPC. It is settled 16 law that "mere negligence or carelessness" will not amount to mischief.

22. In the present matter, negligence has already been established. It cannot be said that the accused had prior knowledge or intention to cause damage to the vehicle of the complainant hence, necessary ingredients of section 425 IPC have not been fulfilled. Hence, the accused cannot be convicted u/s 427 IPC.

23. Guilt of the accused u/s 279 IPC has already been established, as discussed above hence, accused Ajmal Khan is accordingly, convicted for offences punishable under section 279 IPC and acquitted u/s 427 IPC.

Matter be listed for arguments on the point of sentence on 15.01.2013 at 2.00 P.M. ANNOUNCED IN THE COURT (CHETNA SINGH) ON 08.01.2013 MM­02(SD)/08.01.2013 Certified that this judgment contains 16 pages and each page bears my signatures.

(CHETNA SINGH) MM­02(SD)/08.01.2013