Delhi District Court
Smt. Kamlesh Pal vs . Ajay Aggarwal & Anr. on 9 January, 2017
Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16)
IN THE COURT OF SH. ANIL KUMAR:
SPECIAL JUDGE (THE COMPANIES ACT)
ADDITIONAL SESSIONS JUDGE03 : DWARKA COURTS : DELHI
In the matter of:
Criminal Appeal No. 175/16 (440418/16)
Smt. Kamlesh Pal
W/o Late Shri Gajram
R/o H.No. RZ93/41, Gali No.7,
Madanpuri, West Sagarpur,
New Delhi110046. ... Appellant
Versus
(1) Shri Ajay Aggarwal
S/o Shri Om Prakah Aggarwal
R/o Flat No. A402,
Dream Apartments, Plot No.14,
Sector22, Dwarka,
New Delhi110075.
(2) Govt. of NCT of Delhi
Through Public Prosecutor. .... Respondents
Date of Filing of Appeal : 20.05.2016
Date of Advancing Arguments : 09.01.2017
Date of Judgement
:
09.01.2017
Arguments on the present appeal as well as application under Section 5 of the Limitation Act, seeking condonation of delay in Paged no. 1/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) filing the present appeal heard.
The present appeal was filed on 20.05.2016 against the impugned order dated 17.02.2016 passed by the Ld. Trial Court.
I have perused the entire record, including TCR and written submissions filed on behalf of appellant.
:O R D E R :
1. In the application, under Section 5 of the Limitation Act, seeking condonation of delay in filing the present appeal, it is stated that impugned order was passed on 17.02.2016 and the appellant had applied for the certified copy of the impugned judgement on 19.03.2016 which was delivered to him on 29.03.2016. It is further stated that appellant had applied for certified copies of chargesheet and statement of witnesses/documents etc. on 18.04.2016 which was delivered to him on 19.04.2016 and due to the above reasons, the appeal could not be filed within the stipulated time period and there was delay of two days in filing the present appeal and that delay in filing the appeal is neither intentional nor deliberate and it has been prayed that delay in filing the appeal be condoned.
2. Per contra, Ld. Counsel for the respondent and Ld. Addl. P.P. for the State have opposed the aforesaid application on the ground that no sufficient cause for day to day delay in filing the Paged no. 2/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) present appeal has been given and it has been prayed that application under Section 5 of the Limitation Act, for condonation of delay in filing the present appeal, be dismissed.
3. Ld. counsel for the appellant has submitted that sufficient cause, as mentioned under Section 5 of the Limitation Act, has to be construed in a justice oriented manner and narrow pedantic approach need not be made and in a case of considerable magnitude like this, Court needs not be technical.
4. In Vedabai @ Vaijayanatabai Baburao Patol Vs. Shantaram Baburao Patil & Ors., 2001 (4) SCALE it has been held as under:
"5. In exercising discretion under Section 5 of the Limitation Act the courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping in mind that in construing the expression 'sufficient cause' the principle of advancing substantial justice is of prime importance."
Paged no. 3/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16)
5. In Ram Nath Sao @ Ram Nath Sahu & Ors. Vs. Gobardhan Sao & Ors., (2002) 3 Supreme Court Cases 195; it has been held as under:
"12. Thus it becomes plaint that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in overjubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when Paged no. 4/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) stakes are high and/or arguable points of facts and law are involved in the case causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the other it is going to pass upon the parties either way."
6. Considering the facts and circumstances, in view of the reasons mentioned in the application, in view of the aforesaid case laws and in order to do substantive justice between the parties, application under Section 5 of the Limitation Act, for condonation of delay in filing the present appeal, is allowed and delay in filing the present appeal is condoned.
7. On merits, by way of present appeal filed under Section 372 Cr.P.C, the appellant who is the wife of deceased Gajraj has challenged the impugned judgement dated 17.02.2016 passed by the Ld. Trial Court whereby the respondent/ accused was acquitted from the charges under Section 279/304A IPC.
8. Briefly stated the facts of the case necessary for disposal of present appeal, as per the case of prosecution before the Ld. Trial Court are that on 10.07.2011 at about 6:15 a.m. on road towards Sector1, Red Light, near Mother Dairy, Dwarka, New Delhi accused Paged no. 5/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) Ajay Aggarwal (respondent no.1 herein) was driving the Wagon R car bearing no. DL9C1737 in a rash and negligent manner and while so driving, the offending vehicle hit against one motorcycle bearing no. DL9SAA0743 due to which the motorcyclist Shri Gajram expired and FIR was lodged at the behest of SI Vipin.
The matter was investigated and on completion of necessary investigation chargesheet against the accused Ajay Aggarwal was filed before the concerned Court of Ld. Metropolitan Magistrate and matter was tried there. On completion of trial, relying upon the evidences brought on record by the prosecution and other material available on record, by way of impugned order Ld. Trial Court came to the conclusion that prosecution failed to prove the essential ingredients of the offences alleged against the accused beyond reasonable doubt due to lack of evidence and hence, acquitted the accused/respondent Ajay Aggarwal from all the offences he was charged for.
9. Feeling aggrieved by the impugned order, the appellant who is the wife of deceased Gajram, has assailed the same on the grounds that impugned order is based on assumption and presumption and no sound and cogent reason has been passed while passing the judgement. It is contended that Ld. Trial Court did not apply the judicial mind and passed the judgment in casual and Paged no. 6/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) hurried manner without considering the facts on record. It is further contended that Ld. Trial Court did not consider the evidence on record, particularly the evidence of witnesses who were minutely cross examined by the Ld. Defence Counsel and Ld. Trial Court miserable failed to consider the veracity of cross examination and hence the same has been misconstrued in the judgment. It is further contended that evidence on record and other relevant documents were completely ignored and were not considered at all by the Ld. Trial Court as the qualitative evidence of PW1, PW3, PW5, PW8, PW9, PW11 and PW12 were sufficient to establish the hands of accused which was not thoroughly considered by the Ld. Trial Court while passing the impugned order. It is further contended that accused had admitted the contents of postmortem report and the TIP proceedings vide his statement and had not opted for evidence in his defence. It is contended that accused is the real culprit who had committed the accident and therefore, he is liable to be convicted.
With the abovesaid contentions it is prayed that impugned order dated 17.02.2016 be set aside and accused be punished in accordance with law.
10. Hon'ble High Court of Delhi in the case of State Vs.Hari Singh, 2015 III AD (DELHI) 326 in CRL. A. 601/2012, dated Paged no. 7/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) 23.09.2014 has held as under: "7. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal, unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstance, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of th accused is connected with commission of the crime he is charged with.
8. ......................
9. ......................
10. Section 304A of the Indian Penal Code makes any act causing death by a rash or negligent act not amounting to culpable homicide, punishable with imprisonment of either description for a term which may extend to two years or with fine or with both. It reads"
Paged no. 8/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) "304A. Causing death by negligence. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
11. The following requirements must be satisfied before applying Section 304A IPC.
(i) Death must have been caused by the accused;
(ii) Death caused by rash or negligent act;
(iii) The act is the proximate and immediate cause of death
12. A perusal of evidence led by the prosecution coupled with the statement of accused recorded under Section 313 Cr.P.C. makes it clear that there is no dispute that on the fateful day of 13.05.1997 at about 7 am, the respondent accused was driving the truck bearing registration number HR 38 B 5169. It is also not in dispute that the TSR bearing number DL1RB 1558 was being driven by Anoop Mehto. There is also no challenge that accident took place between the two vehicles as a result of which the TSR driver Anoop Mehto and passenger Habibullah died while another passenger Ismael grievous injuries.
13. The only bone of contention is whether the respondent/accused was driving the truck in question in a rash and negligent manner as according to accused, he was not Paged no. 9/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) responsible for the accident. It is also the submission of counsel for the respondent accused that prosecution has failed to establish that accused was driving the vehicle in a rash ad negligent manner. The expression "rash" or "negligent" was considered in Sushil Ansal Vs. State through CBI [2014 IV AD (S.C.) 373] where the Supreme Court observed as under: "48. The terms 'rash or 'negligent' appearing in Section 304A extracted above have not been defined in the Code. Judicial pronouncement have all the same given a meaning which has been long accepted as the true purport of the two expressions appearing in the provisions. One of the earliest of these pronouncements was in Empress of India Vs. Indu Beg ILR (1881) 3 All 776, where Straight J. explained that in the case of a rash act, the criminality lies in running the risk of doing an act with recklessness or indifference as to consequences. A similar meaning was given to the term 'rash' by the High Court of Madras in In Re: Nidamarti Negaghushanam 7 Mad HCR 119, where the cort held that culpable rashness meant acting with the consciousness that a mischievous and illegal consequences may follow, but hoping that it will not. Culpability in the case of rashness arises out of the person concerned acting despite the consciousness. These meaning given to the expression 'rash', have broadly met the approval of Paged no. 10/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) this Court also as is evident from a conspectus of decisions delivered from time to time, to which we shall presently advert. But before we do so, we may refer to the following passage from "A Textbook of Jurisprudence" by George Whitecross Paton reliance whereupon was placed by Mr. Jethmalani in support of his submission. Rashness according to Paton means "where the actor foresees possible consequences, but foolishly thinks they will not occur as a result of his act".
49. In the case of 'negligence' the Courts have favoured a meaning which implies a 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 which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness negligence implies acting without such consciousness, but in circumstances which show that Paged no. 11/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection.
(iii) What constitutes Negligence:
50. The expression 'negligence' has also not been defined in the Penal Code, but that has not deterred the Courts from giving what has been widely acknowledged as a reasonably acceptable meaning to the term. We pronouncements on the subject refer to the dictionary meaning of the term 'negligence'.
51. Black's Law Dictionary defines negligence as under:
The failure to exercise the standard of care that a reasonably prudent person would have exercise in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of other's rights.
52. Charlesworth and Percy on Negligence (Twelfth Edition) gives three meanings to negligence in forensic speech viz: (i) in referring to a state of mind, when it is distinguished in particular from intention; (ii) in describing conduct of a careless type; and (iii) as the breach of a duty to take care Paged no. 12/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) imposed by either common law or statute. The three meanings are then explained thus:
The first meaning: Negligence as a state of mind can be contrasted with intention. An act is intentional when it is purposeful and done with the desire or object of producing a particular result. In contrast, negligence in the present sense arises where someone either fails to consider a risk of particular action, or having considered it, fails to give the risk appropriate weight.
The second meaning: Negligence can also be used as a way to characterize conduct, although such a use may lead to imprecision when considering negligence as a tort. Careless conduct does not necessarily give rise to breach of a duty of care, the defining characteristic of the tort of negligence. The extent of a duty of care and the standard of care required in performance of that duty are both relevant in considering whether, on any given facts conduct which can be characterized as careless, is actionable in law.
The third meaning: The third meaning of negligence, and the one with which this volume if principally concerned, is conduct which, objectively Paged no. 13/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) considered, amounts to breach of a duty to take care.
53. Clerk & Lindsell on Torts (Eighteenth Edition) sets out of the following four separate requirements of the tort of negligence:
(1) the existence in law of a duty of care situation, i.e. one in which the law attaches liability to carelessness. There has to be recognition by law that the careless infliction of the kind of damages in suit on the class of person to which the claimant belongs by the class of person to which the Defendant belongs is actionable;
(2) breach of the duty of care by the Defendant, i.e. that it failed to measure up to the standard set by law;
(3) a casual connection between the Defendant's careless conduct and the damage;
(4) that that particular kind of damage to the particular claimant is not so unforeseeable as to be too remote.
54. Law of Torts by Rattanlal & Dhirajlal, explains negligence in the following words:
Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily Paged no. 14/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the Defendant owes the duty of observing ordinary care and skill, by which neglect the Plaintiff has suffered injury to his person or property. According to Winfield, "negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the Defendant to the Plaintiff". The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs for damage is a necessary ingredient of this tort. But as damage may occur before it is discovered; it I the occurrence of damage which is the starting point of the cause of action.
55. The above was approved by this Court in Jacob Mathew Vs. State of Punjab and Anr., 2005 VI AD (S.C.) 493 = (2005) 6 SCC 1."
14. In Mohammed Aynuddin (supra), the Honb'le Supreme Court observed as under:
Paged no. 15/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) "9. The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence, the accident would not have occurred and that the things which caused injury is shown to have been under the management and control of the alleged wrong doer.
10. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be 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 consciousness. 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 imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
11. In the case in hand prosecution story is entirely based on testimony of star witness Laxman who made statement to the police Paged no. 16/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) that he had seen that offending vehicle Wagon R was being driven by respondent at very fast speed, in a rash and negligent manner and respondent hit deceased's two wheeler. But this star witness has turned hostile before the Court and not supported the case of prosecution. There is no ocular/direct evidence of the facts that alleged offending vehicle was being driven by respondent and at a very high speed and in a rash and negligent manner.
12. Let me examine the circumstantial evidences in this matter.
13. Mechanical Inspector Shri Puran Chand was examined by the prosecution as PW1 who deposed that on 10.07.2011, on the request of I.O. he got the mechanical inspection of the bike bearing no. DL9SAA0743 conducted and submitted his report vide Ex.PW 1/A. He further deposed that on 04.10.2011, he conducted the mechanical inspection of Wagon R Car No. DL9CP1737 and it was found fit for road test and he submitted his report vide Ex.PW1/B. Mechanical Inspection Report of bike no. DL9SAA0743 Ex.PW1/A states that rear mudguard broken; rear light broken; left side guard slightly damage; left side foot rest damage; tool box damage; rear number plate damage; scratch on the left side of seat and left side mirror is broken.
Paged no. 17/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) Mechanical Inspection Report of Wagon R Car no. DL9CP 1737 Ex.PW1/B states that front number plate repaired and front bumper repaired from right side.
14. In the TIP proceedings conducted before the Ld. Metropolitan Magistrate on 03.10.2011, accused Ajay Aggarwal made a statement as under: "I do not wish to participate in the test identification Parade as do not dispute the occurrence of the accident."
15. Statement of accused Ajay Aggarwal, recorded under Section 281 Cr.P.C. reads as under: "All the incriminating evidence produced by the prosecution are put to the accused to which accused denied the same. Accused further stated that no any accident in question was occurred to his fault. He never drove the offending vehicle in rash and negligent manner at the given time and place. He is innocent and present case is planted upon him. He further stated that he do not wish to lead any defence evidence."
16. In view of mechanical examination reports of offending vehicle as well as two wheeler of deceased and explanation given by respondent during trial, it can be safely hold that the offending vehicle was being driven by the respondent at the time of incident but it cannot be said that offending vehicle was being driven at a Paged no. 18/19 09.01.2017 Smt. Kamlesh Pal Vs. Ajay Aggarwal & Anr.
CA No. 175/16 (440418/16) very high speed and in a rash and negligent manner. As per mechanical examination report, bumper of offending vehicle was found to be repaired from right side. Site plan of the place of incident i.e. Ex.PW1/A shows that motorcycle and blood were found at extreme left of the road and distance between these two points is only 3 ft. In these circumstances and damage caused to motorcycle of deceased, it cannot be opined that the alleged offending vehicle was being driven at a very high speed and in a rash and negligent manner. There is no other evidence relevant on this point. Hence, it is hold that there is no evidence to establish that when incident took place respondent was driving the Wagon R car in a rash and negligent manner. I find no illegality in the impugned order of acquittal. Impugned order passed by Ld. Trial Court is upheld. Resultantly, the present appeal is dismissed.
17. TCR be sent back alongwith copy of judgement.
18. File be consigned to record room after due compliance.
Announced in the Open Court on 9th Day of January 2017 (Anil Kumar) Special Judge (The Companies Act) ASJ03 : Dwarka Courts Delhi/09.01.2017 Paged no. 19/19 09.01.2017