Delhi District Court
State vs . Shahid on 3 February, 2012
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
METROPOLITAN MAGISTRATE06 (East), KARKARDOOMA COURTS,
DELHI.
FIR No. : 518/08
PS : Preet Vihar
Offence complained of : 279/304A IPC
Date of commission of offence : 17.10.2008
Unique Case ID No. : 02402R0222982010
STATE Vs. Shahid
S/o Sh. Nazar Ali
R/o 541, DDA Flats, Lado Sarai, Mehroli, Delhi.
.............. Accused
SI P.S. Rawat, PSPreet Vihar.
............. Complainant
Date of Institution : 06.08.2010
Plea of accused : Pleaded not guilty.
Date of reserving judgment/ order : 03.02.2012
Date of pronouncement : 03.02.2012
Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
ALLEGATIONS
The story of the prosecution is that on 17.10.2008 at Rashid Market,
Patparganj Road opposite Dera Baba Sahib Gurudwara, Delhi, falling within the
jurisdiction of Police Station Preet Vihar, the accused Shahid was driving a Eicher
Canter bearing number DL1M2205 in a rash and negligent manner and while
FIR No. 518/08 State Vs. Shahid Page No. 1 / 14
driving the said vehicle in such a manner, Dil Bahadur S/o Late Sh. Om Bahadur,
who was sitting back side in the said vehicle, fell down from the Canter and
received injuries which ultimately resulted into his death. Thus, accused Shahid is
alleged to have committed offence punishable under section 279/304A IPC.
FIR
On the basis of the said allegations and on the complaint of the
complainant SI P.S. Rawat, an FIR bearing number 518/08 under section 279/304
A IPC was lodged at Police Station Preet Vihar on 18.10.2008.
NOTICE
After investigation, chargesheet under section 173 Cr.P.C was filed
on 06.08.2010.
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 chargesheet, a notice for the offence punishable
under section 279/304A IPC was framed against accused Shahid and read out to
the said accused person, to which the accused pleaded not guilty and claimed trial
on 15.02.2011.
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
FIR No. 518/08 State Vs. Shahid Page No. 2 / 14
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. 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. Appeal No.
109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while dealing
FIR No. 518/08 State Vs. Shahid Page No. 3 / 14
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 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."
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 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
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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 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.
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)".
In order to prove the above said allegations, the prosecution has cited
14 witnesses, of which the sole eye witness is Imran Khan, who has been
examined as PW1. All the other witnesses are formal witnesses and none of them
is a witness to the accident. Public Witnesses i.e., Hit Bahadur and Smt. Chameli
FIR No. 518/08 State Vs. Shahid Page No. 5 / 14
are not the witnesses to the accident, they are merely the witnesses with respect to
dead body identification. PW Naresh Garg is the superdar of the offending vehicle
bearing No. DL1M2205.
In the present case, there is only one eye witness to the accident
namely Imran Khan. All the witnesses cited by prosecution are formal witnesses
and sufficient only to prove that deceased Dil Bahadur received injuries and that an
FIR with respect to the said accident was lodged on the next day at PS Preet Vihar
vide FIR bearing No. 518/08.
PW - 1 Imran Khan in his examinationinchief deposed that on
17.10.08he along with his two friends was going to his house via Gurudwara and at about 9:30 9:45 PM he had seen that two vehicles i.e., Canter and RTV coming from opposite side and a person was lying on the road. He further deposed that he along with his friend immediately stopped the Canter and there was a trolley behind the canter in which 2 - 3 persons were sitting. The said witness called the police at 100 number and upon arrival of Police told all the facts to the police and police took the injured with them. He further deposed that driver of the canter ran away from the spot and driver was stopped by his two friends at a little distance from the spot. The said witness identify the accused to be the same person who was driving the canter on the day of accident.
The said witness was cross examined at length by Ld. APP for the state with the permission of court wherein, he denied all the suggestions given by Ld. APP. The witness denied that he had stated to the police that the canter was being driven at a high speed and in rash and negligent manner. He also denied that he had disclosed to the police that a person sitting on articles behind the canter and when the canter passed by this witness it jumped and one person fell down on the road. Thus, the said witness failed to support the story of the prosecution in his FIR No. 518/08 State Vs. Shahid Page No. 6 / 14 crossexamination by Ld. APP for the state.
The prosecution has cited PW1 Imran Khan as the only witness, who saw the accident and therefore could have deposed as regards the rashness and negligence on the part of the accused in driving the canter. However, the said witness in his examination in chief as well as crossexamination by Ld. APP failed to state that the accident was caused by canter.
His testimony in examinationinchief is reproduced in this regard :
"Meanwhile I had seen that two vehicles, one was canter and another was RTV, were coming from opposite side. I had seen that a person was lying on the road, it seems to me that person was fell down from any of the two vehicles.. A trolley was behind the canter and 2 3 persons were sitting in the trolley.".
His testimony in crossexamination by Ld. APP for the state is further reproduced in this regard : "It is wrong to suggest that I stated to the police in my statement that accused was driving his canter at a hight speed and in rash and negligent manner . It is wrong to suggest that I stated to the police in my statement that a person was sitting on the articles behind the canter and the canter passed from me and suddenly it jumped 20 yards away from me and one person fell down on the road.. It is wrong to suggest that on 18.10.08 when I was going from front of PS, I found that canter was parked there, on seeing the canter I came in PS and I found that the driver of the canter was also present there, I identified him and stated to the police that he was the person who was driving the canter in rash and negligent manner at a high speed and committed an accident.."
From the testimony as reproduced above it is amply clear that this witness failed to support the prosecution story in order to prove, firstly, that the FIR No. 518/08 State Vs. Shahid Page No. 7 / 14 accident was caused by canter bearing No. DL1M2205, secondly, that the said canter was being driven at high speed and in rash and negligent manner.
Thus, even without going into the crossexamination of the witness, it is clear that he has not been able to prove the prosecution story by way of his deposition in examination in chief and crossexamination by Ld. APP for the state.
However, the case of the prosecution has been further demolised by this witness, when in his crossexamination by Ld. Defence Counsel, he deposed that he was not actually present when the incident / accident took place, rather, he reached the spot about 15 minutes thereafter, and by further deposing that he had not seen any one falling from any vehicle and that he had seen the accused for the first time in the court.
In view of the testimony of sole eye witness Imran Khan, nothing incriminating is left against the accused specially with respect to the fact that the accused was driving the offending vehicle/ canter in rash and negligent manner.
In view of the testimony of PW 1 Imran Khan and in absence of any other eye witness either cited or examined, the prosecution can never prove that the offending vehicle was being driven by accused Shahid in rash and negligent manner.
The remaining witnesses who are yet to be examined by the prosecution are all formal witnesses of which PWs Hit Bahadur and Smt. Chameli are not the witnesses to the accident, they are merely the witnesses with respect to dead body identification. None of the remaining witnesses is an eye witness to the accident.
In the present case there is only one eye witness namely PW 1 Imran Khan, who has not supported the story of the prosecution by stating that he had never seen the accident taking place. No other witness is competent enough to FIR No. 518/08 State Vs. Shahid Page No. 8 / 14 prove the guilt of the accused.
The prosecution, through the oral testimony of the sole eye witness i.e., PW1 Imran Khan failed to bring forth oral evidence to prove that the accident was caused by the vehicle bearing number DL1M2205, which was being driven by the accused Shahid in a rash and negligent manner.
In the light of the testimony of PW1, the testimony of all the remaining witnesses together is insufficient to prove the allegations against the accused qua offences u/s 279/304A IPC.
The case is at the stage of PE, however, in view of the testimony of eye witness PW1 Imran Khan, there is nothing incriminating against the accused for proceeding further and recording the statement of remaining formal witnesses would be futile and wastage of judicial time, resources and money.
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 FIR No. 518/08 State Vs. Shahid Page No. 9 / 14 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. Explanation2 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, 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 FIR No. 518/08 State Vs. Shahid Page No. 10 / 14 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 reaffirm 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 straitjacket formula. Their applicability would depend on the factsituation 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 timelimits 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 FIR No. 518/08 State Vs. Shahid Page No. 11 / 14 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 timelimits 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. (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 3077 (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 timelimits 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 FIR No. 518/08 State Vs. Shahid Page No. 12 / 14 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 sevenJudge 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 straitjacket 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 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 FIR No. 518/08 State Vs. Shahid Page No. 13 / 14 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 Shahid qua offences u/s 279/304A IPC in the present summons police case and hereby releases the accused Shahid under sections 279/304A IPC, which shall have the effect of acquittal.
As per section 437A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 03.02.2012.
(SAURABH PARTAP SINGH LALER) MM06(East)/ KKD/ 03.02.2012 Certified that this judgment contains 14 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) MM06(East)/ KKD/ 03.02.2012 FIR No. 518/08 State Vs. Shahid Page No. 14 / 14