Delhi District Court
State vs Mohd. Ismail on 25 February, 2025
________________________________________________________________
IN THE COURT OF SH. MAYANK GOEL, ADDITIONAL CHIEF
JUDICIAL MAGISTRATE (EAST), KKD COURTS, DELHI
CIS No. 1600/2019
State Vs. Mohd. Ismail
FIR No. 277/2016
PS: Preet Vihar
U/s. 279/338 IPC
JUDGMENT
(1) Name of the complainant Sh. Baijnath Shah
S/o Sh.Budhan Shah
(2) Name, parentage and address of Mohd. Ismail
the accused S/o Sh. Sher Mohammed
R/o H. No.30/1, PANA Mohalla,
Mangolpur Kalan, Delhi
(3) Offence involved U/s.279/338 IPC
(4) Plea of the accused Pleaded not guilty
(5) Final order Acquitted
(6) Date of Institution 06.05.2019
(7) Date reserved for orders 13.02.2025
(8) Judgment announced on 25.02.2025
_________________________________________________________________________________________________________________ CIS No. 1600/2019 Page No.1 of 13 State Vs. Mohd. Ismail FIR No. 277/2016 Digitally signed by MAYANK MAYANK GOEL PS Preet Vihar GOEL Date: 2025.02.25 16:28:35 +0530 THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated the case of the prosecution is that on 27.08.2016 at about 07:30 a.m. at Karkari Mod red light, accused Mohd. Ismail was found driving orange colour bus bearing no.DL-1PC-6729 in speed in rash & negligent manner so as to endanger the human life & safety of others and hit the theli of complainant due to which the complainant suffered grievous injury and thus, the accused committed offences punishable u/s 279/338 IPC.
2. After completion of investigation, charge-sheet against accused was prepared and filed in the court whereupon cognizance was taken. After complying with the provisions of Sec.207 Cr.P.C., charge for offences u/s.279/338 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 02 (two) witnesses.
(a) PW-1 Baijnath Sah deposed that on 27.08.2016, he was going to Ghazipur Mandi for purchasing vegetables on his theli. At about 07:30 a.m. when he reached at Karkari Mor, one orange bus route no.73, registration of which he did not remember, came from the side of Preet Vihar and hit him and due to which, he fell down and sustained injuries. The driver of the bus came down from the bus and took him to Hedgewar hospital where he was treated. He remained at the hospital for one week. Police official recorded his statement Ex.PW1/A. He sustained injury on _________________________________________________________________________________________________________________ CIS No. 1600/2019 Page No.2 of 13 State Vs. Mohd. Ismail FIR No. 277/2016 Digitally signed by MAYANK MAYANK GOEL PS Preet Vihar GOEL Date: 2025.02.25 16:28:44 +0530 head and hand. He correctly identified the accused in the court. The accused was not arrested by the police in his presence. He further deposed that he cannot say that in what manner the accused came with bus and hit against him and his theli as he was hit from the backside. He correctly identified orange cluster bus no. DL1PC6728 i.e. offending vehicle from photographs Ex.P-1 (Colly). He admitted his name at point 'A' as witness on arrest memo of accused Ex.PW1/B, however, he stated that the accused was not arrested in his presence. PW-1 was duly cross-examined by the Ld. Counsel for accused and was discharged.
(b) PW-2 Inspector Ram Shankar Pandit, deposed that on 27.08.2016, he was posted as Sub-Inspector in PS Preet Vihar. On the intervening night of 26/27.08.2016, he was on night emergency duty. At about 07:50 a.m. on 27.08.2016, he received a PCR call vide DD No.9A Mark 2A regarding accident/ injured at Karkari Mod on which he along with Ct. Bhom Singh reached the spot at Karkari Mod where upon inquiry they came to know that the injured has already been taken to Dr. Hedgewar hospital. Thereafter, he along with Ct. Bhom Singh reached Dr. Hedgewar hospital where injured namely Baijnath Shah was found under treatement vide MLC No.2844/16. He received MLC on which doctor had mentioned alleged history of RTA and the nature of injury was opined as 'opinion reserved'. However, the injured did not give his statement. Thereafter, he along with Ct. Bhom Singh came back to PS and kept the PCR call 'pending'. On 29.08.2016, he visited the house of injured at 242, Chitra Vihar, JJ Camp, Delhi where he recorded the statement of the complainant _________________________________________________________________________________________________________________ CIS No. 1600/2019 Page No.3 of 13 State Vs. Mohd. Ismail FIR No. 277/2016 Digitally signed MAYANK by MAYANK PS Preet Vihar GOEL GOEL Date: 2025.02.25 16:28:50 +0530 (Ex.PW1/A) and came back to PS and prepared tehrir Ex.PW2/A. Thereafter, he presented the same to the Duty Officer for registration of the case and departed for the house of the injured for further investigation. He reached the house of the injured and took the injured along with him at the place of incident i.e. Karkari Mod, Preet Vihar and prepared the site plan Ex.PW2/B at the instance of the injured/ complainant. In the meantime, Ct. Som Pal arrived at the spot and gave him the original tehrir and the copy of FIR. Thereafter, he put the FIR number on the site plan and after which he along with Ct. Som Pal and complainant came back to the house of the complainant where they met accused Mohd. Ismail. On seeing the accused, the complainant pointed towards the accused and stated that he was the driver of the offending vehicle which hit him on 27.08.2016. Thereafter, PW-2 inquired the accused and arrested him in the present case vide arrest memo Ex.PW1/B and also prepared personal search memo of the accused Ex.PW2/C. Thereafter, PW-2 gave the information of his arrest to his brother-in-law (Sadu) namely Tanveer Khan and on the jamanatnama of his Sadu, PW-2 released the accused on police bail on the assurance of accused that he would produce the offending bus and its related documents on the next day. On 30.08.2016, accused came to PS and produced the offending vehicle i.e. bus bearing registration no.DL1P6728 and also produced his DL and documents of the offending vehicle which were seized by him vide seizure memo Ex.PW2/D and Ex.PW2/E respectively. PW-2 got the offending vehicle mechanically examined by Motor Vehicle Inspector namely T. U. Siddiqui and received the report of mechanical inspection Ex.A3 and after _________________________________________________________________________________________________________________ CIS No. 1600/2019 Page No.4 of 13 State Vs. Mohd. Ismail Digitally signed FIR No. 277/2016 MAYANK by MAYANK GOEL PS Preet Vihar GOEL Date: 2025.02.25 16:28:58 +0530 getting the documents of the offending vehicle verified, the same was released on superdari. Later, the MLC result was obtained as 'grievous'. Thereafter, charge-sheet was prepared and filed before the court. He correctly identified orange cluster bus no. DL1PC6728 i.e. offending vehicle from photographs Ex.P-1 (Colly). PW-2 was duly cross-examined by the Ld. Counsel for accused and was discharged.
(c) PW-3 HC Sompal deposed that on 29.08.2016, he was posted as Constable at PS Preet Vihar and on that day, duty officer had handed over him copy of FIR and original rukka to be handed over to IO SI R.S. Pandit and thereafter, he reached Karkari Mor Flyover, where the IO and the complainant met him. He handed over copy of FIR and rukka to IO. IO had mentioned the particulars of FIR on the documents prepared before the registration of FIR. PW-3 alongwith IO and the complainant went to the house of complainant situated at J.J. Camp, Chitra Vihar where one person was found and after seeing him, complainant stated that this is the same person who had hit him with offending vehicle and disclosed his name as Mohd. Ismail. IO interrogated the accused and arrested him vide arrest memo Ex.PW1/B and also conducted his personal search vide memo Ex.PW-2/C. IO released the accused on the surety of one of his relative. IO had recorded statement of complainant. PW-3 alongwith IO came back at PS and IO recorded his statement u/s 161 CrPC. The name of the complainant in the present case is Baijnath. PW-3 correctly identified the accused present in the court. The house of the complainant is situated at H. No. 242, J.J. Camp, Chitra Vihar and driver of the _________________________________________________________________________________________________________________ CIS No. 1600/2019 Page No.5 of 13 State Vs. Mohd. Ismail FIR No. 277/2016 Digitally signed by MAYANK MAYANK GOEL PS Preet Vihar GOEL Date: 2025.02.25 16:29:05 +0530 offending bus bearing regn. no. DL-IPC-6728 met them there. That after seeing the accused, the complainant stated that while driving the abovesaid bus number in heavy speed, rash and negligent manner, accused had hit him on 27.08.2016. PW3 was duly cross-examined by the Ld. Counsel for accused and was discharged.
4. Thereafter, PE was closed and statement of accused U/s 313, Cr.P.C. was recorded by the court on 13.02.2025 in which accused took the plea that no accident occurred by his bus bearing no. DL-1PC-6728. The accident had already occurred before he reached the place of incident and he helped injured and took him to the hospital. He further submits that he has been falsely implicated in the present case.
5. Since accused opted not lead any evidence, therefore, DE was closed.
6. I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
7. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
8. Section 279 of IPC provides punishment for rash driving or riding on a public way and lays down that:-
_________________________________________________________________________________________________________________ CIS No. 1600/2019 Page No.6 of 13 State Vs. Mohd. Ismail FIR No. 277/2016 Digitally signed PS Preet Vihar MAYANK by MAYANK GOEL GOEL Date: 2025.02.25 16:29:12 +0530 "whoever drives any vehicle, or rides, on any public away in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both."
9. Section 338 of IPC provides punishment for causing grievous hurt by act endangering life or personal safety of others and lays down that:-
"whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to five one thousand rupees, or with both."
10. The identity of accused and the offending vehicle is very well established by the prosecution and moreover the accused himself did not dispute the identity of the offending vehicle at any stage of trial rather admitted that he was driving the offending vehicle though he disputed that no accident occurred by his bus and he has been falsely implicated in the present case as he reached the place of incident after the occurrence of accident and helped the injured. Accordingly, it is established that accused was driving the offending vehicle at the time of incident.
11. Now, the next question that remains to be adjudicated is whether the accused was driving the vehicle in rash and negligent manner. The prosecution has examined the complainant i.e. PW1 to the said incident to prove his case. However, in the testimony of PW1, the manner of driving is not deposed by PW1 and it is deposed by PW1 that "he cannot say that in what manner the accused came with bus and hit against him and his theli as he was hit from _________________________________________________________________________________________________________________ CIS No. 1600/2019 Page No.7 of 13 State Vs. Mohd. Ismail FIR No. 277/2016 Digitally signed by MAYANK MAYANK GOEL PS Preet Vihar GOEL Date: 2025.02.25 16:29:17 +0530 the backside". PW3 only deposed that the accused is driving the offending vehicle in rash and negligent manner but nothing came in his testimony as to how and in what manner the accused is driving the vehicle in rash and negligent manner. The prosecution has to prove the rashness and negligence driving on the part of the accused specifically and categorically and rashness and negligence cannot be proved only by deposing that accused was driving the offending vehicle in rash and negligent manner. Moreover, it is deposed by PW1 during his cross-examination that "it is correct that the vehicles were plying towards Hasanpur after green signal and he did not know who hit him from the backside". PW2 during his cross-examination deposed that when he reached the spot, on checking he found one CCTV camera installed near the spot but it was not covering the spot and he had not obtained the CCTV footage and had not recorded the statement of any public witness except the complainant. Therefore, the prosecution fails to prove that the accused was driving the vehicle in rash and negligent manner.
12. In AIR 2009 SC 1621 State of Karnataka v. Muralidha, the Apex Court has considered as to what constitutes rashness and negligence, as under:
"6...........A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not. Lord Atkin in Andrews v. Director of Public Prosecutions (1937) AC 576 at p. 583 : 2 All ER 552) observed as under :
"Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is _________________________________________________________________________________________________________________ CIS No. 1600/2019 Page No.8 of 13 State Vs. Mohd. Ismail FIR No. 277/2016 Digitally signed MAYANK by MAYANK PS Preet Vihar GOEL GOEL Date: 2025.02.25 16:29:24 +0530 established. Probably of all the epithets that can be applied 'recklessness' most nearly covers the case. It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter; but it is probably not all embracing, for 'recklessness' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction."
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 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.
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 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.
9. 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)".
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13. In Magan Bihari Lal V. the State of Punjab AIR 1977 Supreme Court 1091, the Apex Court held that the onus of proving all ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is the duty of the prosecution to show how hook the crook.
I am also of the view that intention, knowledge and motive are important aspects under criminal law and brief legal position concerning these words is given herein below:-
Intention- "Criminal intention" simply means the purpose or design of doing an act forbidden by the criminal law without just cause or excuse. The intention of the accused to produce a particular consequence shows his intention to do the act. An act is intentional if it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied. The word 'intent' does not mean ultimate aim and object. Nor it is used as a synonym for 'motive'. Where the Legislature makes an offence dependant on proof of intention, the court must have the proof of facts sufficient to justify it in coming to the conclusion that the intention existed. No doubt one has usually to infer the intention from the conduct, and one matter that has to be taken into the account is the probable effect of the conduct. But that is never conclusive. As a general rule, every sane man is presumed to intend the necessary or the natural and probable consequences of his acts, and this presumption of law will prevail unless from a consideration of all the evidence the court entertains a reasonable doubt whether such intention existed. This presumption, however, is not _________________________________________________________________________________________________________________ CIS No. 1600/2019 Page No.10 of 13 State Vs. Mohd. Ismail FIR No. 277/2016 Digitally signed by MAYANK MAYANK GOEL PS Preet Vihar GOEL Date: 2025.02.25 16:29:36 +0530 conclusive nor alone sufficient to justify a conviction and should be supplemented by other testimony. An accused must be judged to have the intention that is indicated by his proved acts. The burden of proving guilty intention lies upon the prosecution where the intent is expressly stated as part of the definition of the crime. Criminal intent as a psychological fact has to be proved even in regard to offences under the Special Acts unless it is specifically ruled out or ruled out by necessary implication.
Knowledge- Where knowledge of a fact is an essential ingredient of an offence it must be distinctly proved. There are certain offences in the Penal Code where the accused who commits those offences is punished irrespective of this fact whether he had knowledge or not. Where a particular act is forbidden the question of knowledge is immaterial.
Motive- Motive is not to be confused with intention. If a man knows that a certain consequence will follow from his act, it must be presumed in law that he intended that consequence to take place although he may have had some quiet different ulterior motive for performing the act. The motive for an act is not sufficient test to determine its criminal character. By motive is meant anything that can contribute to give birth or even to prevent, any kind of action. Motive may serve as a clue to the intention; but although the motive be pure, the act done under it may be criminal. Purity of motive does not purge an act of its criminal character. An act which is unlawful cannot, in law, be excused on the ground that it was committed from a good motive.
_________________________________________________________________________________________________________________ CIS No. 1600/2019 Page No.11 of 13 State Vs. Mohd. Ismail FIR No. 277/2016 Digitally signed PS Preet Vihar MAYANK by MAYANK GOEL GOEL Date: 2025.02.25 16:29:43 +0530 Motive, though not a sine quo non for bringing the offence home to the accused, is relevant and important on the question of intention. Though the prosecution is not bound to prove motive for the crime, absence of any motive is a factor which may be considered in determining the guilt of the accused. Thus, if there is really no motive and the crime is completely motiveless then that circumstance can be taken into consideration alongwith the evidence of prior insanity. But if the actual evidence as to the commission of the crime is believed, then no question of motive remains to be established. It is not the bounden duty of the prosecution to prove motive with which a certain offence has been committed. It is sufficient if the prosecution proves by clear and reliable evidence that certain persons committed the offence, whatever the motives may be which induced them to commit that offence. For, motive is a fact very often within the special knowledge of the person doing the act and thus it becomes extremely difficult to ascertain the motive in a given case but that does not mean that the offence was not committed.
The question of motive is not material where there is direct evidence of the acts of the accused and the acts themselves are sufficient to disclose the intention of the actor. But in the cases of circumstantial evidence, absence of motive is a factor in favour of the accused.
14. It is settled preposition that the prosecution has to prove the guilt of accused beyond all reasonable doubt and that too by leading independent, _________________________________________________________________________________________________________________ CIS No. 1600/2019 Page No.12 of 13 State Vs. Mohd. Ismail FIR No. 277/2016 Digitally signed MAYANK by MAYANK PS Preet Vihar GOEL GOEL Date: 2025.02.25 16:29:57 +0530 reliable and unimpeachable evidence. There is no controversy to the proposition that the accused is entitled to the benefit of every doubt occurring in the prosecution case. The general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind.
15. In the backdrop of aforesaid discussions, facts and circumstances and material available on record, the prosecution has failed to prove the charges u/s 279/338 IPC against the accused beyond reasonable doubts. Accordingly, accused is acquitted of the said offences u/s 279/338 IPC. Bail bonds already furnished by the accused is hereby extended in terms of Section 437A of Cr.P.C.
16. File be consigned to record room after necessary compliance.
Announced in open court (MAYANK GOEL)
on 25th February, 2025 ACJM:EAST: KKD COURTS
DELHI
Digitally signed by
MAYANK MAYANK GOEL
GOEL Date: 2025.02.25
16:30:06 +0530
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