Delhi District Court
State vs . Naeem on 29 October, 2018
IN THE COURT OF SHRI SUMEET ANAND
METROPOLITAN MAGISTRATE-07, PATIALA HOUSE COURTS
NEW DELHI DISTRICT: NEW DELHI
FIR No. : 42/05
Cr C No. : 41081/16
PS : Mandir Marg
U/s : 279/337/304-A IPC
State Vs. Naeem
JUDGMENT
A Case Identification 41081/16
Number
B Name of the Devender
complainant
C Name of the Naeem, S/o Sh. Islamuddin, R/o D-
accused & his 100, Welcome Colony, Seelampur,
parentage and New Delhi.
address
D Offence complained 279/337/304-A IPC
of
E Date of commission 24.01.2005
of offence
F Date of Institution 10.06.2005
G Offence Charged 279/337/304-A IPC
H Plea of accused Pleaded not guilty
FIR No.42/05 State Vs. Naeem Page 1 of 13
I Order Reserved on 28.09.2018
J Date of 29.10.2018
Pronouncement
K Final Order Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Prosecution has alleged that on 24.01.2005 at around 03:30 PM at Beyard Lane, Bangla Sahib Road crossing, New Delhi, the accused Naeem was driving / riding the offending vehicle i.e. a motorcycle bearing registration number DL 7S AM 5314 in a manner so rash and negligent so as to endanger human life and personal safety of others and while driving the above said vehicle in said manner, the accused Naeem hit against one scooter bearing registration number DL 6SP 7590 which resulted in the death of the driver / rider of the scooter namely Shakir and the pillion rider Devender sustained simple injuries.
2. The FIR was registered upon the complaint of PW-3 Devender. His complaint is exhibited as EX PW 3/A. During the course of investigation, accused Naeem was arrested and subsequently after completion of investigation the final report in the form of the charge-sheet against the accused Naeem was FIR No.42/05 State Vs. Naeem Page 2 of 13 filed in the court.
3. After taking the cognizance of offence and appearance of accused before the court, in compliance of section 207 Cr.P.C a copy of charge-sheet was supplied to the accused and on the subsequent date of hearing a formal notice of accusation under section 251 Cr.P.C for commission of offences under section 27, 337 and 304-A IPC was served upon the accused. The accused pleaded not guilty to the accusation and claimed trial. Accordingly the Prosecution evidence was lead.
4. In order to prove its case beyond all reasonable doubts, the prosecution examined the following 6 (Six) witnesses; viz.
i) PW-1 Jaan Mohammad (identified the dead body)
ii) PW-2 Mohammad Rashid (identified the dead body)
iii) PW-3 Devender (eyewitness / victim / pillion rider)
iv) PW-4 Ct. Vijay (got Post mortem conducted and handed over the body of deceased to his family members)
v) PW-5 HC Satish Kumar (Accompanied the IO in investigation)
vi) PW-6 ASI Gopi Ram (Investigating officer)
5. In addition to the above referred witnesses, the prosecu-
tion, in order to prove its case, also cited ASI Devender Kumar FIR No.42/05 State Vs. Naeem Page 3 of 13 (Mechanical Inspector, who inspected both the vehicles involved in the accident) Ct. Vinay Kumar, HC /DO Sharan Mal, Dr. Shiv Nandan (RML Hospital who prepared MLC No. 8815/05 of ac- cused Naeem) Dr. M Kaushik (RML Hospital who prepared MLC No. 8715/05 of Injured Devender) Dr. Munish Wadhawan (con- ducted post mortem of the deceased). However, in view of the statement of accused recorded under section 294 Cr.P.C on 08.04.2016whereby he accuse admitted the registration of FIR, MLC's and Post Mortem report and Mechanichal Inspection re- port, the above-referred corresponding witnesses were dropped from array of witnesses.
6. To prove its Case beyond all reasonable doubts, the prose-
cution also relied upon the following documents; viz.
i) EX PW 1/A dead body identification document
ii) EX PW 1/B Dead body handing over document
iii) EX PW 2/A dead body identification document
iv) EX PW 3/A Complaint made by PW-3 Devender (eyewit-
ness / victim / pillion rider) made to the police
v) EX PW 3/B Arrest memo
vi) EX PW 3/C Personal Search memo FIR No.42/05 State Vs. Naeem Page 4 of 13
vii) EX PW 5/A Site Plan
viii) EX PW 5/B & EX PW 5/C Seizure memo of offending vehi-
cle and vehicle of victim respectively
ix) EX PW 6/A Rukka
x) EX PW 6/B Seizure memo insurance policy of offending
vehicle
xi) EX A-1 (Admitted) FIR
xii) Mark A-2 (Admitted) MLC bearing No. 8715/05
xiii) EX A-3 (Admitted) Post mortem report of deceased Shakir bearing No. 31/05 prepared by Dr. Manish Wadhawan
xiv) EX A-4 & EX A-5 Mechanical inspection report of both of-
fending vehicle and vehicle of the victim respectively.
7. After prosecution evidence, the statement of accused Naeem was recorded u/s 313 Cr.P.C wherein all incriminating evidences led against him during the trial by the prosecution were put to him, affording an opportunity to give his explanation, if any.
8. In his statement recorded u/s 313 Cr.P.C., the accused admitted driving / riding the offending vehicle at the relevant date and time of the incident / accident, as alleged by the prosecution. He has also admitted that there was a collision / accident FIR No.42/05 State Vs. Naeem Page 5 of 13 between his vehicle and the vehicle of the deceased / victim at the spot / place, as alleged by the prosecution. However, the accused has denied driving the offending vehicle in a negligent manner. He claims that the deceased / victim came from the left side of the inter section near the gurudwara Bangla Sahib and struck against his vehicle.
9. However, despite opportunity, the accused preferred not to lead any defence evidence. Accordingly, the matter was posted for final arguments.
10. I have heard the learned APP for the State and learned counsel for the accused at length. I have also carefully perused the entire judicial record and carefully appreciated the evidence lead by the prosecution.
11. In order to prove the offences punishable under section 279/337 and 304A IPC, the prosecution has an obligation to prove beyond all reasonable doubts, the following mandatory ingredients; viz,
i) The rash or negligent act / driving which is likely to cause hurt or injury to any other person; and
ii) the said rash or negligent act / driving of the accused was the proximate cause of death of victim / injury FIR No.42/05 State Vs. Naeem Page 6 of 13 caused to the victim.
12. In this case except for PW 3 (Devender), being the eye witness as well as a victim of the incident, as he was the pillion rider on the scooter of the deceased, all other witnesses are either police, or formal witnesses. Hence, it is only the testimony of PW-1, in the light of the Mechanical inspection reports of the vehicles involved in the accident, showing the damage caused due to the accident and the site map, showing exact place of accident are which are highly significant and deserve appreciation.
13. The alleged accident / incident occurred in broad day light near a place of worship i.e. Gurudwara Bangala Sahib, where usually at the given time there is enormous public, however, for the reasons best known to the Investigating Officer no attempt was made by him to join any public person, or to find out any independent eye witness of the accident / incident. Interestingly, PW-5 (HC Satish Kumar) in his cross-examination has deposed and admitted that, "it is correct that IO did not ask any public persons to join the investigation of the present case." Accordingly, it is only PW-3 (Devender) the friend of the deceased, who was accompanying him, at the unfortunate time, is the sole star witness of the prosecution. Hence, it is only the testimony of PW- 3 from which it has to be inferred that whether the death of victim FIR No.42/05 State Vs. Naeem Page 7 of 13 was caused by rash or negligent driving of accused and whether any ingredients of section 279 / 337 and 304-A of IPC are meted out in this case, or not.
14. The Hon'ble Hon'ble Supreme Court in case titled Rath- nashalvan v. State of Karnataka AIR 2007 SC 1064 while deal- ing with a case u/s 304A IPC observed :
"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.(underlining added)'
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 FIR No.42/05 State Vs. Naeem Page 8 of 13 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 the charge has arisen it was the imperative duty of the accused person to have adopted.
15. PW-3 (Devender) has not been cross-examined by the accused. Hence, the entire testimony of PW-3 has gone absolutely unrebutted and uncontroverted and the same stands duly proved. PW-3 in his testimony regarding the rashness or negligence of accused in driving the offending vehicle has stated that, "on 24.01.2005 at about 03:30 PM I along with Shakir were going on a scooter bearing No.n DL 6SP 6590 and I was sitting as a pillion rider and Shakir was driving the scooter. When we reached at the chowraha of Bangala Sahib road, at that time motorcycle bearing No. DL 7S AM 5314 came from Bengali sweet side and hit against our scooter from the middle due to which I along with Shakir fell down on the road. The accused present in the court today (correctly identified) was driving the motorcycle in a rash and negligent manner. Somebody from the public made a call to the police and police came to the spot. Police removed us to the RML Hospital, where we were given the medical treatment. My statement was recorded by the police at the hospital, same is now EX PW3/A bearing my thumb FIR No.42/05 State Vs. Naeem Page 9 of 13 impression at point A. After two days, my friend Shakir was declared dead by the doctor. The accused present in the court today was arrested by the police in my presence and the arrest memo and the personal search memo are now EX PW 3/B and EX PW 3/C respectively. Both the memos bear my thumb impression at point A."
16. In the most humble opinion of this Court, the testimony of PW 3 is absolutely deficient so as to assist the court to form even a vague opinion, let alone any conclusion regarding the offending vehicle being driven in a rash or negligent manner and the cause of accident and the proximate cause of death of the deceased being the direct and proximate cause of rashness and negligence in driving by the accused.
17. PW-3 (Devender) did not state any circumstance, except for reiterating statutory terms, "that accused was driving the offending vehicle in a rash and negligent manner", so as to enable the court to appreciate the manner in which the incident / accident was caused. The Hon'ble Apex Court in the judgment of "State of Karnataka vs. Satish" SCC (CRI) 1508 and the Hon'ble Delhi High Court in case titled "Abdul Subhan vs. State" 2007 (1) CCC (HC) 414 observed that in the absence of material facts and circumstances indicating that the accused driver acted in a rash or negligent manner, he cannot be held guilty of the offence.
FIR No.42/05 State Vs. Naeem Page 10 of 1318. The testimony of PW-3 (Devender) lacks material particulars imputing the rashness, or even the negligence upon the accused. PW-3 has neither stated the approximate speed of the offending vehicle, or the manner in which the traffic was moving, or about the status of the traffic signals. Merely reiterating that the accused was driving the offending vehicle in a rash and negligent manner is not, in the opinion of this court, sufficient to take the case of the prosecution beyond the bracket of "all reasonable doubts."
19. Rashness and negligence in driving a vehicle are subjective concepts and no straight jacket formula can be put to use to ascertain the rashness or negligence while driving the vehicle. Criminal rashness and negligence has to be proved like a 'Relevant Fact' during the course of trial and this onus lies upon the prosecution. There cannot be any reason, including the unfortunate death of a person involved in the incident / accident which my compel the courts to presume rashness or negligence in driving the offending vehicle. The Hon'ble Apex Court in the Judgment titled as Miyam vs. State of A.P. (2000)7 SCC 72:
"7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may FIR No.42/05 State Vs. Naeem Page 11 of 13 create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus, no presumption of negligence can be drawn against the driver of the bus.
...
9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
20. In view of the abovedone discussion this court is of the opinion that the prosecution has failed to establish even remotely, let alone beyond doubts, the essential ingredients to attract sections 279 / 337 and 304-A IPC and it could not prove that the cause of accident, leading to the unfortunate death of the deceased Sharik was a result of the accused driving the offending vehicle in a rash and negligent manner so as to endanger the personal safety of others.
FIR No.42/05 State Vs. Naeem Page 12 of 1321. Accordingly, accused Naeem is hereby acquitted for offences under sections 279/337 and 304-A IPC. Digitally signed SUMEET by SUMEET ANAND ANAND Date: 2018.10.29 17:04:55 +0530 Announced in the Open (SUMEET ANAND) Court on 29th October 2018 MM-07/PHC/New Delhi FIR No.42/05 State Vs. Naeem Page 13 of 13