Delhi District Court
State vs . Sunil Kumar Gupta on 24 June, 2020
IN THE COURT OF MS VASUNDHARA AZAD, MM-03, SE,
SAKET COURTS, NEW DELHI
State Vs. Sunil Kumar Gupta
FIR No.777/15
Police Station : H. N.Din
Under Section : 279/427 IPC & 3/181 & 185 MV Act
Date of institution : 17.05.2016
Date of pronouncement : 24.06.2020
JUDGEMENT
a) Cr. Cases number of the case 96168/2016
Date of commission of
b) 21.11.2015
offence
c) Name of the complainant Mukesh Kumar Vaid
Sunil Kumar Gupta
Name, parentage and address S/o Daya Ram Gupta
d)
of the accused R/o village Malwa, PS Sikri Gunj,
Distt. Gorakhpur, UP.
Section 279/427 IPC & 3/181 & 185
e) Offence complained of
MV Act
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted
h) Date of final order 24.06.2020
BRIEF STATEMENT OF FACTS AND REASONS FOR THE DECISION
1. Briefly stated, the case of the prosecution is that 21.11.2015 at near Birbal Family Dhaba Shastri Market, Bhogal, New Delhi within the jurisdiction of PS h. N. Din, accused was driving an Eco car bearing no. DL3CBA-9049 without DL under the FIR No.777/2015, State Vs. Sunil Kumar Gupta PS H. N. Din page No.1/7 influence of liquor and in a manner so rash and negligent so as to endanger human life and personal safety of others and hit against a stationed motorcycle bearing no DL-12SD- 3561 and also caused damaged to the said motorcycle and thereby committed offences punishable U/s 279/427 IPC and 3/181 & 185 of MV Act.
ACCUSATION AGAINST THE ACCUSED
2. Vide order dated 28.08.2017 passed by the learned predecessor of this Court, notice of accusation for the offences punishable under Sections 279/427 IPC and 3/181 & 185 of MV Act was served upon the accused to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
3. The prosecution, in order to prove its case against the accused, in all examined 3 witnesses.
PW-1 Mukesh Kumar is the complainant in the present case and has deposed that on the day of the incident, he had gone to Pratap market/Shastri Market to collect dinner from Dhaba. He had parked his bike make passion pro besides the road just infront the Dhaba and that when he came out of the Dhaba after collecting his dinner, some public persons were making noise that ' dekho dekho aap ki bike Eco car ke neche aa gayi hai'. He narrated the whole incident to the police. Police recorded his statement as Ex-PW1/A and seized his motorcycle and car of accused vide seizure memo Ex-PW1/B & Ex- PW1/C and site plan Ex-PW1/D was prepared at his instance. PW1 also proved arrest and personal search memos of the accused as Ex-PW1/E and Ex-PW1/F respectively. PW2 ASI Anil Pandey has deposed that on the intervening night of 21-22.11.2015, upon receipt of DD No.28, Ex-PW2/A, he went to Birbal Family Dhaba Bhogal Jangpura, where they found one motorcycle bearing no. DL12SD3561 lying on the road beneath an Eco Car bearing no. DL3CBU 9049. PW2 inquired the complainant and recorded his statement Ex-PW1/A, prepared rukka and site plan vide Ex-PW2/B and Ex-PW1/D respectively. PW2 also seized both vehicles vide memos Ex-PW1/B and Ex-PW1/C and FIR No.777/2015, State Vs. Sunil Kumar Gupta PS H. N. Din page No.2/7 also seized RC and insurance of offending vehicle vide Ex-PW2/C. Thereafter, accused was arrested and his personal search was conducted by PW2 vide memos Ex-PW1/E and Ex-PW1/F respectively.
PW-3 HC Sandeep has deposed along the lines of PW2 HC Anil Pandey.
Vide a separately recorded statement, the accused admitted under Section 294 Cr.P.C. FIR No.777/15, PS H.N.Din as Ex-P/A/1 and two report of MVI dated 26.11.2015 as Ex- P/A/2 and Ex-P/A/3 After examination of above-said witnesses, PE was closed.
STATEMENT / DEFENCE OF THE ACCUSED
4. In his examination under Section 313 Cr.P.C., the accused denied the entire evidence put to him and opted not to lead DE. Thereafter, DE was closed.
ARGUMENTS
5. Learned APP for the State has argued that the testimonies of all prosecution witnesses have established guilt on the part of accused and that he be convicted for offence under Section 279/427 IPC and 3/181 and 185 MV Act. On the other hand, it has been argued by the learned counsel for accused that accused is innocent as there is no evidence, which will prove guilt of accused to the hilt.
ANALYSIS AND FINDINGS
6. The record has been thoroughly and carefully perused. The respective submissions of the Ld. Assistant Public Prosecutor and Ld. Counsel for the accused have been considered.
7. 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:-
FIR No.777/2015, State Vs. Sunil Kumar Gupta PS H. N. Din page No.3/7 That the accident actually took place;
That the accident took place due to rash and negligent driving; That the accused was the person who was driving the vehicle at the relevant time.
8. The 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.
9. In "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 do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
10. 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.
11. Elaborating further, in State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided FIR No.777/2015, State Vs. Sunil Kumar Gupta PS H. N. Din page No.4/7 on 2.6.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression " rashness " and " negligence " held as follows :
"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 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 imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual."
12. The distinction has also been 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)".
13. For proving the guilt of the accused u/s 279 IPC, it has to be proved that the vehicle was being driven in a rash and negligent manner.PW1 Mukesh Kumar has stated in his testimony before the court that he had not seen the accused whilst the accused was driving the offending vehicle and that the manner in which the vehicle was being driven by the accused was informed to him by the public persons present. No other witness cited by the prosecution is an eye witness of the incident alleged.
14. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused exclusively lies on the prosecution and the prosecution is required to stand on FIR No.777/2015, State Vs. Sunil Kumar Gupta PS H. N. Din page No.5/7 its own legs. The benefit of doubt, if any, must go in favour of the accused. Prosecution is under a legal duty to prove each ingredient of offence with which accused has been charged with beyond reasonable doubt. In the present matter, it can be safely observed that no evidence is brought on record to prove the guilt of the accused qua s.279 IPC. Thus, the ingredients of S.279 IPC have not been proved by the prosecution beyond doubt. Further, qua the charge u/s.185 MV Act, in addition to the fact that PW2 ASI Anil Pandey has stated in his testimony that no receipt from breath analyser qua the accused was collected , there is nothing on record highlighting the exact quantity of alcohol in the blood of the accused and the only evidence is the observation of doctor in the MC of the accused stating that alcohol is suspected, there is not sufficient evidence to prove guilt of the accused u/s.185 MV Act. Further, there is no evidence coming forth in the testimony of any of the prosecution witnesses that the accused was driving the offending vehicle without a driving licence.
15. Accordingly, accused Sunil Kumar Gupta is acquitted for the offence charged U/s 279 IPC as well as u/s. 3/181 and 185MV Act.
16. Moving on, S.427 IPC prescribes punishment for mischief resulting into damage to the amount of Rs. 50/-or upwards. This section necessitates three things:
Intention or knowledge of likelihood to cause wrongful loss or damage to public or to any person.
Causing the destruction of some property or change in it or in its situation. Such change must destroy or diminish its value or utility or affect it injuriously.
17. 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 law that "mere negligence or carelessness" will not amount to mischief and mens rea is required to constitute mischief. However, in the FIR No.777/2015, State Vs. Sunil Kumar Gupta PS H. N. Din page No.6/7 present matter, nothing has come on record that the accused intentionally or knowingly damaged the vehicle of the complainant.
18. With this background, it is held that in the present case the evidence on the record is not at all sufficient to hold the accused guilty of the alleged offences. Accordingly, accused Sunil Kumar Gupta is also acquitted of the offence charged U/s 427 IPC CONCLUSION
19. In absence of any sufficient proof against accused Sunil Kumar Gupta that would prove his guilt in the said case to the hilt, in my considered opinion, no offence u/s 279/427 IPC and u/s. 3/181 and 185 MV Act is made out against the accused Sunil Kumar Gupta. Accordingly, accused Sunil Kumar Gupta is given benefit of doubt and is acquitted of offences under S. 279/427 IPC and u/s. 3/181 and 185 MV Act. File be consigned to Record Room after due compliance.
Digitally signed by VASUNDHARA VASUNDHARA AZAD AZAD Announced in open Court on 24.06.2020 Date: 2020.06.24 11:40:22 +0530 (VASUNDHARA AZAD) MM-03 (South-East), Saket Courts, New Delhi FIR No.777/2015, State Vs. Sunil Kumar Gupta PS H. N. Din page No.7/7