Delhi District Court
Fir No. 99/2001 Ps Dilshad Garden State vs Nobat Ram Page No. 1 Of 10 on 24 March, 2018
IN THE COURT OF MS. BHAWANI SHARMA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (NORTH EAST),
KARKARDOOMA COURTS, DELHI.
(Judgment by Metropolitan Magistrate u/s 355 Cr.P.C)
Serial/CIS Number of the
Case
FIR No 99/2001
Police Station Dilshad Garden
Date of Commission of 23.04.2001
Offence
Date of Institution 05.10.2001
Name of Complainant (if Sh. Sahab Singh S/o Sh. Dal Chand R/o
any) H.No. A-1/14, Saboli Bagh, Fanneh Khan
Maur, Nand Nagri, Delhi - 110093
Name of Accused Person Nobat Ram S/o Chunni Lal R/o Near
and his Parentage and Bihari Market Jhuggi, Vaishali,
Residence Ghaziabad, U.P.
Offence Complained of or U/s 279/338 IPC & u/s 3/181 M.V. Act.
Proved
Plea of accused and his Pleaded Not Guilty.
examination (if any) Claimed to be innocent and stated that he
had not committed such offence.
Final Order Acquitted u/s 279/338 IPC & u/s 3/181 M.V.
Act
Date of such Order 24.03.2018
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1.ALLEGATIONS The story of the prosecution is that on 23.04.2001 at about 05.30 pm at GTB Road, Near Ramlila Ground, accused was driving a TSR No. DL-1RF- 0233 under the influence of liquor without any license, in a rash and negligent manner and while driving so he hit against motorcycle bearing No. DL-7SL-1835 and caused grievous hurt to complainant Sahab Singh and thus he committed an offence punishable u/s 279/338 IPC and Section 3/181 M.V. Act.
FIR No. 99/2001 PS Dilshad Garden State Vs Nobat Ram Page No. 1 of 10
2. FIR On the basis of above facts an FIR bearing No. 99/2001 was registered in the PS Dilshad Garden against the accused Nobat Ram. Statement of witnesses were recorded, site plan was prepared, the accused were arrested and after completion of all necessary investigation challan U/s 279/338 IPC & Section 3/181 M.V. Act was presented in the court for trial on 05.10.2001.
3. CHARGE The accused was summoned by the Court to face the trial and copy of challan as required under section 207 Cr. P.C. was supplied to accused persons.
On hearing arguments and on perusal of record, prima facie notice for the offence under section 279/338 IPC & Section 3/181 M.V. Act was made out against the accused. Accordingly, notice was framed against the accused on 06.06.2002. Thereafter, case was fixed for prosecution evidence.
4. 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 too beyond any reasonable doubt. The three essential ingredients are as follows:-
a) That the accident actually took place.
b) That the accident took place due to rash and negligent driving.
c) 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 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.
FIR No. 99/2001 PS Dilshad Garden State Vs Nobat Ram Page No. 2 of 10 "[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 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 judgment of the Honorable Supreme Court of India elaborating further the requirements of section 304-A 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 FIR No. 99/2001 PS Dilshad Garden State Vs Nobat Ram Page No. 3 of 10 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 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 : Ni damorti Nagabhusanam 7 Mad. HCR 119)".
5. PROSECUTION EVIDENCE In order to prove the above said allegations, the prosecution has cited as many as 13 witnesses, of which prosecution has examined 10 witnesses as FIR No. 99/2001 PS Dilshad Garden State Vs Nobat Ram Page No. 4 of 10 under:-
PW-1 Sahab Singh Complainant/Injured/Eye Witness PW-2 HC Sardar Duty Officer Singh PW-3 Prem Chand Registered owner of TSR (Offending vehicle) PW-4 ASI Joginder IO of the present case.
Singh PW-5 HC Kishan Witness who got the FIR registered.
Sahay
PW-6 R.K.B. CMO, GTB hospital who prepared MLC of
Chaudhary complainant/injured/eye witness.
PW-7 Dr. Vinita Rathi Prof. Radiology Department who conducted
X-Ray of injured/complainant.
PW-8 Rishi Pal Brother of complainant/injured
PW-9 Dr. P.K. Doctor who gave opinion on the basis of X-ray
Aggarwal
PW-10 ASI Sukhbiri Witness who received call regarding accident.
5.1 On 22.02.2018 statement of the accused was recorded u/s 281/313 Cr.
P.C. wherein he denied the allegations of prosecution, claimed innocence and wish to lead evidence in his defence.
5.2 I have heard the Ld. APP for the state and accused and have also carefully perused the entire record and the relevant provisions of the law.
6. DISCUSSION 6.1 The case of the prosecution is that accused on 24.04.2001 at 05:30 PM at GTB Road RamLila Ground, Delhi falling within the jurisdiction of Police Station Dilshad Garden accused Nobat Ram was driving TSR bearing No.DL-1RF 0233 in a rash and negligent manner because of which he struck against a motorcycle bearing No. DL-7SL-1835 which was driven by complainant Sahab Singh which resulted into grievious injuries upon the complainant PW Sahab Singh. Out of all PWs, it is the testimony of PW-1 who is complainant as well as material eye witness, which is relevant. The other witnesses are formal witnesses to whom matter was reported after the incident was over.
FIR No. 99/2001 PS Dilshad Garden State Vs Nobat Ram Page No. 5 of 10 A rash act is primarily an overhasty act. Negligence is a breach of duty caused by omission to do something, which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do.
7. In Balachandra Waman Pathe v. State of Maharashtra, 1968 SCD 198. the Supreme Court explained the distinction between a rash and a negligent act in the following manner:
7.1 An offence under section 304A Indian Penal Code may be committed either by doing a rash act or a negligent act. There is a distinction between a rash act and a negligent act. In the case of a rash act as observed by Straight, J. in Idu Beg's case I.L.R. 3 ALL. 776, the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence 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. Negligence is 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 man would not do. Again as explained in Nidamarti Negaghushanam's case 7 Mad. H.C.R. 119, a 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 if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection.
7.2 In the present case the deposition of the witnesses have to be analysed in order to find out if the TSR which the accused was driving with which the accident happened and the victim sustained grievous injuries by the accused either rashly or negligently in order to fasten the liability of section 338 of Indian Penal Code.
7.3 As per the case of the prosecution it is PW-1 Sahab Singh, who is the eye witness to the accident. The material part of examination-in-chief of PW-1 is :
"On 24.04.2001, I was coming from Ganesh Nagar to my house. When I reached near GTB Hospital I was on my motorcycle and was coming in my side. In the meantime, a TSR came from the side of FIR No. 99/2001 PS Dilshad Garden State Vs Nobat Ram Page No. 6 of 10 Nand Nagri at a very high speed and hit my motorcycle due to which I fell down.....I had not seen the driver at the time of accident but I had seen the accused when public persons caught hold the accused and taken the accused to me where I was..... The accident occurred due to rash and negligent driving of the accused....."
In cross examination the witness deposed that "I cannot produce the motorcycle as the same has been sold by me...... I had not seen the number of TSR after the accident......the turning point was at a distance of 01 km and behind me 400-500 mtr. ahead to me..... It is correct that the GTB hospital is situated in the West side of the spot.... It is correct that at about 05.30 pm, the road becomes busy due to patients/servicemen...... The accused was at a very high speed."
8. ANALYSIS OF EVIDENCE 8.1 Other than the deposition that is, "...TSR was being driven at a very high speed and also rashly and negligently," there is nothing incriminating fact against the accused and basically the fate of entire case of prosecution depends as to how 'high speed', 'rashly' and 'negligently' be understood in the factual matrix of the present case. At the costs of repetition it may again be mentioned that while considering the applicability of section 338 Indian Penal Code, section 80 of Indian Penal Code cannot be lost sight of. From the deposition of PW-1, it appears that the accused was rash and/or negligent in driving the TSR with which the accident had happened because the accused was driving the TSR at 'very high speed.' It may be mentioned that no-where in the examination- in-chief of PW-1, there is deposition of any fact from which the inference of the accused being rash and/or negligent in driving the TSR can be inferred.
8.2 In Madhukar Bhausaheb Mhaske v. State of Maharashtra, (Bombay)(Nagpur Bench) 2006 CriLJ 3700 it has been observed in para 9 of the judgment, "The speed of the vehicle is only one of the several other factors which determine whether the act is rash or negligent. Negligence is the absence of due care and caution, whereas FIR No. 99/2001 PS Dilshad Garden State Vs Nobat Ram Page No. 7 of 10 culpable rashness results from lack of circumspection." In Sarjeet Singh v. State 2012(2) JCC 1338 the Hon'ble Delhi High Court has observed, "PW6 and PW3 have stated that the Petitioner was driving the vehicle at a very high speed but because the vehicle was being driven at a high speed does not mean it was being driven in a rash and negligent manner." In Mohan Shyam v. State (NCT of Delhi) 2012(3) JCC 1523 the Hon'ble Delhi High Court has observed that, "In order to prove the act of negligence and rashness, it must be shown that the act was done without proper regard to its consequences and without any precautions taken for ensuring the safety of others." In the present case from the materials on record it cannot be inferred that the accused was driving the TSR in wanton fashion or by flouting any traffic rules or in a reckless manner. Every person is bound to anticipate the dangers normally expected on the road and not to challenge his own safety by trying to change the lane without looking for any coming traffic which the injured did in the present case. Assuming that the accused was in fact driving the vehicle at very high speed then, it may also be noted that in the deposition of PW-1 there is nothing to indicate as to what exactly was the speed of the car to classify it as 'very high speed.' The very high speed of PW-1 may not be even high speed at all from other's perspective or objectively speaking. Further only driving a vehicle at 'very high speed' per se is not either rash or negligent act. In given set of facts even driving slowly also could be a negligent act (for example where the minimum speed on the road has been fixed). It has been deposed by the witness PW-1 that he has narrated the IO the speed of the offending vehicle as 50 km/hr however, the same has not been clarified in his complaint which is Ex. PW-1/A. It has also not been clarified by the prosecution by examining witnesses as to what was the condition of the road, traffic and other things which in combination of 'very high speed' of the TSR of the accused could have made the act of driving of the TSR at that particular speed a rash or negligent act. From the deposition of PW-1, it could not be said that the prosecution has proved it even on the balance of probability that the accused was rash and negligent while driving the TSR with which the fatal accident had occurred.
FIR No. 99/2001 PS Dilshad Garden State Vs Nobat Ram Page No. 8 of 10 It is pertinent to mention here that neither the vehicle of the injured was proved nor the site plan Ex.PW 4/F was proved as the material witness Sahab Singh deposed that "I was not taken to the spot later on by the police and the site plan was not prepared by the police at my instance."
8.3 It is the duty of the prosecution to prove beyond reasonable doubt all the necessary ingredients of the offence under section 338 of Indian Penal Code in order to convict the accused. In view of above discussion the court is of the opinion that the prosecution has failed in its duty which makes it superfluous to discussion the facts as elicited in the cross- examination of PW-1 and the defence which was being tired to be put up by the accused. As the necessary facts in order to prove the offence under section 279, Indian Penal Code is also similar as that of section 338, Indian Penal Code, therefore it could also be said that the prosecution in the present case has also failed to prove the offence under section 279 Indian Penal Code against the accused. Further nothing incriminating could be brought by examining the formal witnesses i.e. PW-6 Dr. R.K. B. Chaudhary and PW-7 Dr. Vinita Rathi who have only proved the MLC of the injured and not the fact that the accused was under the influence of liquor at the time when he was driving the offending vehicle. The MLC of the accused Nobat Ram has not been proved during the course of the trial. Further as per the said MLC, it has not been clarified by the prosecution as to what was the content of alcohol in the blood and if the same is within permissible limit or not. Hence, it cannot be said that the prosecution has brought home the guilt of the accused by proving the offences punishable u/s 181/185 M.V. Act. 8.4 The accused is acquitted for the offences under section 279/338 of Indian Penal Code.
9. FINAL ORDER 9.1 In view of the reason mentioned, prosecution has failed to prove its case, accordingly, accused Nobat Ram stands acquitted.
FIR No. 99/2001 PS Dilshad Garden State Vs Nobat Ram Page No. 9 of 10 9.2 As per section 437-A of the Cr. P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the accused shall file fresh personal bond and surety bond of the accused is further extended/accepted for another 6 months from today. File be consigned to Record Room after necessary compliance.
Digitally signed by
ANNOUNCED IN THE OPEN COURT BHAWANI BHAWANI SHARMA
ON 24.03.2018 SHARMA Date: 2018.03.24
14:50:23 +0530
(BHAWANI SHARMA)
ACMM(North East)/KKD/24.03.2018
Certified that this judgment contains 10 pages and each page bears my signatures. BHAWANI Digitally signed by BHAWANI SHARMA SHARMA Date: 2018.03.24 14:50:35 +0530 (BHAWANI SHARMA) ACMM(North East)/KKD/24.03.2018 FIR No. 99/2001 PS Dilshad Garden State Vs Nobat Ram Page No. 10 of 10