Delhi District Court
State vs . Dinesh Kumar on 25 July, 2022
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IN THE COURT OF MS. SURBHI, METROPOLITAN MAGISTRATE,
CENTRAL-12, SOUTH WEST, DWARKA COURTS, DELHI
State Vs. Dinesh Kumar
FIR No. : 90/17
P.S. : Jaffarpur Kalan
U/s.: 279/338 IPC
JUDGMENT
1. CR. Case. No. : 28540/18 2. Date of Commission of Offence : 15.05.2017 3. Date of institution of the case : 03.10.2018 4. Name of the complainant/injured : Yogesh Kumar
5. Name of the accused, parentage & address : Dinesh Kumar S/o Lal Singh Kumar R/o Vill. Sulodha, Distt. Jhajjar, Haryana.
6. Offence : U/s 279/338 IPC IPC
7. Plea of Accused : "Not Guilty"
8. Final Order : Acquitted
9. Date when Final Order reserved : 05.07.2022
10. Date of judgment : 25.07.2022.
FIR No. : 90/17 Page 1 of 17 Pages
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Brief Facts
1. The accused Dinesh Kumar has been set up to face trial for the offence U/s 279/338 IPC with the allegations that on 15.05.2017 at about 07:45AM, on the road coming from Dhansa Border towards Dhansa Village near Hanuman Mandir Shiv Shakti Mandir, New Delhi within the jurisdiction of PS JP Kalan, he was found driving Royal Enfield motorcycle bearing registration no. DL-4S-CA-0333, in a rash and negligent manner so as to endanger human life and the personal safety of others and while driving the aforesaid motorcycle in the aforesaid manner, he hit one motorocycle bearing Regn. no. HR-14C-8053 which was driven by the complainant Yogesh Kumar and caused grievous injuries to the complainant and thereby committed offence u/s 279/338 IPC and within the cognizance of this court.
After the usual investigation, the charge sheet was prepared in context of the present FIR against the accused.
PRE-TRIAL PROCEDURE
2. The final charge sheet for the offence U/s 279/338 IPC was filed against the accused on 03.10.2018 whereupon the cognizance was taken on 24.04.2019 and provisions of Sec. 207 Cr. P.C. were complied. After hearing arguments, the accused was charged U/s 279/338 IPC on 06.12.2019 to which the said accused pleaded "Not Guilty" and instead claimed trial.
PROSECUTION EVIDENCE
3. In order to prove its case, prosecution has examined 5 witness and the following documentary evidences.
Ex. PW1/A Site Plan
Ex. PW1/B(colly) Photographs of the motorcycle bearing regn.
no. HR14C-8053 and offending vehicle I.e
bullet bearing no. DL4S-CA-0333
Ex. PW2/A Arrest Memo
Ex.PW2/B, Seizure memo of DL, RC and Insurance of
Ex.PW2/C and offending motorcycle bearing no. DL-4S-CA-
Ex.PW2/D 0333
Ex.PW3/A and Seizure memo of offending vehicle I.e bullet
Ex.PW3/B bearing no. DL4S-CA-0333 and motorcycle of
victim bearing regn. no. HR14C-8053.
FIR No. : 90/17 Page 2 of 17 Pages
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Ex.PW4/A Request on behalf of IO for recording the
statement of victim and CMO report declaring
the victim as unfit for making statement.
Ex.PW4/B Notice u/s 133 M.V.Act
Ex.PW4/P-1 Copy of insurance of the offending vehicle.
Ex.PW4/P-2 Seizure memo of Original RC of offending
vehicle.
Ex.PW4/P-3 Seizure memo of Original DL of accused.
Ex.PW5/A Entry no. 1477/17 of Register no.19 (OSR)
4. Sh. Yogesh Kumar has been examined as PW1. PW1 deposed that on 15.05.2017 at about 07:40AM, he was coming from his village and was going to his duty on his motorcycle bearing regn. no. HR-14C-8053 and when he reached near Hanuman Mandir he stopped his motorcycle at Mandir to visit there. He further deposed that in the meantime, one bullet motorcycle bearing regn. DL-AS-0333 came from the back side which was being driven in a very high speed and in a rash and negligent mater and the said buttle motorcycle hit his motorcycle and fell on the road and sustained injuries. He further deposed that the bullet motorcycle was driven by accused Dinesh Kumar who was present in the court and he was witness correctly identified. He further deposed that he was shifted to Balaji Action Hospital where he had undergone treatment. He further deposed that police met him at the hospital and his statement was recorded by the police. He further deposed that he site plan was prepared at his instance by the police as Ex.PW1/A bearing his signature at point A. he further deposed that he could identify the motorcycle if shown to him.
At this stage, photographs of the motorcycle bearing regn. no. HR14C 8053 and offending vehicle i.e bullet motorcycle bearing regn. no. DL4SCA0333 were shown to PW1 and PW1 correctly identified same as Ex.PW/B (colly). He further stated that the accident took place due to the mistake of accused Dinesh. 4.1 PW1 was cross examined by Ld. Defence Counsel. In his cross examination, he stated that the spot where the accident took place was the double lane road. He further stated that he stopped his motorcycle on the left side of the driver and at the moment when he stopped his motorcycle and put his feet on the ground to deboard the motorcycle, the offending vehicle came from his back side and hit his motorcycle. He further stated that his motorcycle was having back view mirror. He FIR No. : 90/17 Page 3 of 17 Pages 4 further stated that he used to go to his office on motorcycle daily. He further stated that the speed of offending vehicle might have been 70 kmph . PW1 denied the suggestion that he had not used his indicator and took a left turn due to which accused took place or that the accused was not driving the offending vehicle in a rash and negligent manner. He further denied the suggestion that his motorcycle was towards the side of divider and he took a sudden left turn towards the mandir due to which accident took place. He further stated that he driving the motorcycle since the year 2002 and he had a driving licence since year 2001. He denied the suggestion that he was deposing falsely.
5. Ct. Mukesh has been examined as PW2. He deposed that on 27.05.2017, he was posted at PS JP Kalan as Ct and on that day, accused Dinesh Kumar came in PS. He further deposed that accused was arrested vide arrest memo Ex.PW2/A bearing his signature at point A. PW2 correctly identified the accused in the court. He further deposed that accused Dinesh Kumar also produced DL, RC of motorcycle bearing no. DL-4S-CA-0333 and insurance of the said motorcycle. PW2 deposed that IO seized the same vide seizure memo Ex.PW2/B, Ex.PW2/C and Ex.PW2/D bearing his signature at point A respectively.
5.1 PW2 cross examined by Ld. Defence Counsel. In his cross examination, he stated that information of arrest was given to brother namely Ajay of accused through telephonic call. He further stated that he did not remember when the accused came in the PS and also did not remember whether accused came in the PS alone. He further stated that he did not remember when accused left the PS on that day. PW2 denied the suggestion that he was not present at any time of the investigation, therefore, he could not tell the time when accused came in the PS and left the PS. PW
6. Ct. Satish Kumar has been examined as PW3. He deposed that on 15.05.2017, he was posted at PS JP Kalan as Ct and on that day he was on day emergency duty from 08:00am to 08:00pm alongwith ASI Shubhram. He further deposed that during emergency duty, DD no.9A regarding accident was received to ASI Suhbram . He further deposed that he alongwith ASI Shubhram reached at the FIR No. : 90/17 Page 4 of 17 Pages 5 Dhansa Border near Hanuman Shiv Shakti Mandir where they found one discover motorcycle bearing no. HR5053 and other motorcycle make Royal Enfield bearing no. DL4SCA0333 in accidental condition at the side of the road. No eye witness met us at the spot. He further deposed that in the meanwhile, DD no.13A was received to IO. He deposed that IO left him at the spot for safety of the spot and went to RTRM hospital and after sometime he returned at the spot. He further deposed that he seized both motorcycles found at the spot vide seizure memo Ex.PW3/A and Ex.PW3/B bearing his signature at point A respectively and thereafter IO prepared rukka and handed over to him for registration of FIR. He further deposed that he went to the PS and got the FIR registered. He further deposed that he returned at the spot alongwith copy of FIR and original rukka and the Same was handed over to IO. He further deposed that thereafter, they returned at the PS alongwith the case property and the case property was deposited in the malkhana of PS. PW3 deposed that his statement was recorded by IO. He further deposed that he could identify the case property if shown to him.
At this stage, photographs of motorcycle bearing no. HR14C8053 and DL4SCA0333 are shown to witness and same are correctly identified by the witness. Photographs are already Ex.PW1/B (colly). The registration number of the discover motorcycle was DL14C8053 and it was not 5053.
6.1 PW3 cross examined by Ld. Defence Counsel. In his cross examination, PW3 stated that he did not remember when they reached at the spot and also did not remember the receiving time of DD no.9A. He further stated that when they reached at the spot public persons were present. He further stated that IO had not recorded any statement of public witness who were present at the spot. He stated that he did not know as to why the IO had done so and he also did not remember when DD no.13A was received to IO and when IO went RTRM hospital. He further stated that he did not remember when IO came back at the spot from the RTRM hospital. He further stated that he did not remember when IO handed over rukka to him and he went to PS JP Kalan for registration of FIR and he also did not remember when he returned at the spot and handed over copy of FIR and original rukka to IO. He further stated he did not remember when they left the spot finally on the day of incident. He FIR No. : 90/17 Page 5 of 17 Pages 6 further stated that the case property was brought in the malkhana of PS JP Kalan from spot with help of crane. He further stated that he did not remember the number of the said crane. PW3 denied the suggestion that he was not present at any time of investigation, therefore, he could not tell any particular times of reaching at the spot, left the spot for RTRM hospital, registration of the FIR, returning at the spot and finally leaving the spot. PW3 denied that suggestion that he was deposing falsely at the instance of IO.
7. ASI Subh Ram has been examined as PW4. He deposed that on 15.05.2017 he was posted at PS J.P. Kalan as ASI and on that day, he was on emergency duty from 8:00 AM to 8:00 PM. On that day, I received DD No. 9-A. He further deposed that thereafter, he alongwith Ct. Satish reached at in front of Shri Hanuman Shiv Shakti Mandir near Village Dhansa, near Dhansa Border where he saw two motorcycles lying in accidental condition. He further deposed that after sometime at the said place, he received DD No. 13-A regarding MLC of injured Yogesh Kumar and Dinesh Kumar and the said Constable was instructed to remain present there and he left the said place for RTRM Hospital. He further deposed that he came to know at the hospital that injured Yogesh Kumar was referred to another hospital and Dinesh Kumar after getting primary treatment, he has left the hospital. He further deposed that thereafter, he reached at Balaji Hospital where he met with injured Yogesh Kumar and he was in OT. He further deposed that he could not record the statement of injured Yogesh Kumar as he was in OT and unfit for statement vide a report as Ex. PW-4/A which bears his signature at Point 'A' and the signature of CMO at Point 'B'. He further deposed that he came back to the said place and prepared rukka on the basis of the said DD entry vide DD No. 9-A and the rukka was handed over to Ct. Satish for registration of FIR. Rukka is already Ex. P/A/10 which bears his signatures at Point 'A'. He further deposed that after registration of FIR, Ct. Satish came back at the spot and handed over copy of FIR and original rukka to him. He further deposed that thereafter, he seized the said motorcycle vide seizure memo already Ex. PW-3/A & Ex. PW-3/B and each bearing his signature at Point 'B'. The same were taken into police custody and deposited in malkhana of PS J.P. Kalan. He further deposed that during investigation on 21.05.2017, Mechanical Inspector was called to inspect the said FIR No. : 90/17 Page 6 of 17 Pages 7 motorcycle and prepared his report which is already Ex. P/A/8 and Ex. P/A/9. He further deposed that on 22.05.2017, injured Yogesh Kumar came to PS and thereafter, he prepared site plan which is already Ex. PW-1/A bearing his signature at Point 'A' after visiting the place of occurrence with injured Yogesh Kumar. He deposed that on 27.05.2017 a notice U/s 133 M.V. Act was served upon owner of the motorcycle bearing registration No. DL- 4 SC A - 0333 vide memo Ex. PW-4/B bearing his signature at Point 'A'. he further deposed that the reply of the owner on the same notice is at Point 'X' bearing his signature at Point 'B'. He further deposed that he seized the insurance of the said vehicle vide seizure memo already Ex. PW-2/D bearing his signature at Point 'B' and the copy of insurance is with the seizure memo vide Ex. PW-4/P1. He further deposed that RC of the offending vehicle was seized vide seizure memo already Ex. PW-2/C bearing his signature at Point 'B' and the original RC is with the seizure memo vide Ex. PW-4/P2. He further deposed that the DL of the accused was seizure vide memo already Ex. PW-2/B bearing his signature at Point 'B' and the original DL is with the seizure memo vide Ex. PW-4/P3. He further deposed that during investigation on 27.05.2017, the owner of the offending vehicle had come with the accused of the case at PS and thereafter, after interrogation, accused was arrested vide arrest memo already Ex. PW-2/A bearing his signature at Point 'B'. PW4 deposed that he collected the report, documents of the MLC with opinion and the MLC alongwith other documents are already exhibited as Ex. P/A/4, Ex. P/A/5, Ex. P/A/6 and Ex. P/A/7. He further deposed that he recorded statement of witnesses and prepared the charge-sheet against the accused who was present in the Court. He further deposed that thereafter, charge-sheet was filed before Court concerned and the vehicles were released on superdarinama. He further deposed that at the time of releasing the vehicles, photographs were taken and the photographs are with judicial file vide already Ex. PW-1/B (Colly).
7.1 PW4 was cross examined by Ld. Defence counsel. In his cross examination, he stated that he had received the information regarding DD No. 9-A at about 8:02 AM. He further stated that he reached at the place of occurrence at about 8:30 AM. He further stated that they had reached there in QRT vehicle (Government Patrolling Vehicle). He further stated that there were no witness of the incident. He FIR No. : 90/17 Page 7 of 17 Pages 8 further stated that he reached at the RTRM Hospital at about 10:15 AM to 10:20 AM. He further stated that he reached at Balaji Hospital at about after 1:00 PM. He further stated that he reached again to the place of occurrence from Balaji Hospital at about 4:45 PM. He stated that the seized vehicles were taken to malkhana of PS on rickshaw. PW5 denied the suggestion that he was deposing falsely and no investigation was done on the spot or at the hospital. It is wrong to suggest that all the proceedings were done at PS itself.
8. Ct. Shri Bhagwan has been examined as PW5. He deposed that he was posted as MHC(M) at PS Jaffarpur Kalan for one year. He further deposed that he brought Register No. 19 from January 2017 to December 2017 and at entry no. 1477/17 vide FIR No. 90/2017 dated 15.05.2017, PS J.P. Kalan, two motorcycles were deposited bearing registration No. HR-14 C - 8053 (Discover, Black Colour) and another DL- 4 SCA- 0333 (Royal Enfield, Silver & Red Colour). He further deposed that the said vehicles were deposited by ASI Subh Ram on 15.05.2017 and the copy of same as Ex. PW-5/A (OSR). PW5 was discharged after Nil, cross examination.
9. It is pertinent to note that vide separate statement dated 06.12.2019 accused has admitted the genuineness and correctness of FIR no.19/17, Certificate u/s 65 B of Indian Evidence Act, DD no.13A, MLC no.2311 of himself, MLC no,2310 of injured Yogesh Kumar, X-Ray report of himself, X-ray report of injurd Yogesh, Mechanical Inspection of Victim Motorcycle and offending vehicle and DD no.9A. Accordingly, witness PW/DO/HC Ashok Kumar, Puran Chand, Dr. Deepak Bhaskar and Dr. Yasir were dropped from the list of witnesses.
STATEMENT OF ACCUSED
10. Prosecution Evidence was thereon closed by the Court and statement of accused was recorded u/s 313 r/w 281 Cr.P.C vide order dated 12.05.2022 in which all the incriminating evidences on record including all the depositions of PWs along with admitted documents u/s 294 of CR.P.C were put before the accused. Wherein the FIR No. : 90/17 Page 8 of 17 Pages 9 accused denied all the incriminating evidence against him and stated that he has been falsely implicated in this case. He further stated that the accident occurred due to the own fault of the complainant as he has taken a sudden turn without giving any indicator or seeing on the left side. The accused does not wish to lead DE.
ARGUMENTS
11. Final arguments were heard at length. I have gone through the documents on record, evidence and submissions forwarded by counsel for the accused and Ld. APP for the State.
12. It has been argued by the Ld.APP for the State that all the ingredients of the offences are fulfilled in the present matter. The accident has been duly proved and the injured has also deposed about the manner in which the accused was driving the vehicle and therefore the prosecution has proved the case beyond reasonable doubt.
13. Per contra, Ld. Counsel for accused argued that the State has failed to establish the case beyond reasonable doubt. It is submitted that neither rashness nor negligence of the accused is proved on record. It is argued that there is no corroboration of the testimony of the complainant by any public witness despite the fact that public witnesses were available. It is also argued that the accident occurred due to the fault of the injured himself as he has suddenly stopped his bike on the right side of the road and tried to take the same to the left of the road. It is argued that the mechanical inspection report of the victim's motorcycle is not in favour of the prosecution. It is also argued that there was no back view mirror on the victim's motorcycle so as to enable him to see the traffic behind him and therefore when he tried to take a sudden left turn, the accident occurred. Ld. Counsel prayed for the acquittal of the accused.
Ingredients of the offences
14. Now, for better appreciation, let us go and see the requirements of law to judge whether the prosecution has been able to bring home the charges leveled against the accused.
FIR No. : 90/17 Page 9 of 17 Pages 10 Section 279 of I.P.C. reads as follows:
"Whoever drives any vehicle, or rides, on any public way 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 ...... ... .... ... ....... ..... ..... .... .... ....." . On perusal of section 279 of I.P.C. it clearly appears that the section requires two things -
1) Driving of a vehicle or riding on a public way.
2) Such driving or riding must be so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person.
Section 338 of I.P.C. : The essential ingredients of offence punishable under section 338 of I.P.C. are as follows:
(1) Some act is done by the accused;
(2) He did it rashly or negligently;
(3) The act was such as to endanger human life or personal safety of others; (4) Grievous hurt was caused in consequence of such act.
15. Needless to mention here that in criminal law, the burden of proof on the prosecution is to prove the case beyond reasonable doubt and the presumption of innocence of the accused has to be rebutted by cogent evidences pointing towards the guilt of the accused and nothing else. Every single evidence has to be weighed in view of the above legal standard.
POINTS FOR DETERMINATION
16. The points for determination are as follows:
1.) Whether the accused person was driving motorcycle bearing registration no.DL-4S-CA-0333 on the fateful day;
2.) Whether he drove the said vehicle rashly or negligently as to endanger human life and thereby is liable to be punished u/s 279 of the IPC;
3.) Whether by the said rash and negligent driving he caused grievous hurt to the complainant Yogesh Kumar and thereby is liable to be punished u/s 338 IPC.
UNDISPUTED FACTS
17. In the present case, there are certain facts and circumstances that are not in dispute. The presence of the victim Yogesh Kumar and the accused Dinesh Kumar on the spot, on the date of incident, is not disputed. It is also not disputed that the parties met with an accident on the road. The victim Yogesh Kumar stated in his deposition FIR No. : 90/17 Page 10 of 17 Pages 11 that as soon as he reached near Hanuman Mandir, he stopped his motorcycle to visit the Mandir and in the meanwhile the motorcycle of the accused being driven in a very high speed and in a rash and negligent manner hit his motorcycle due to which he fell on the road and sustained injuries. In the statement recorded u/s 313 CrPC, the accused has admitted that the accident occurred between him and the victim. It is also not disputed that the victim suffered grievance injuries as result of the accident. Further the identity of the accused or the offending vehicle are also not in dispute. The injured/victim has mentioned the offending vehicle registration number and its description in its deposition and the accused has also admitted driving the said vehicle on the day of the incident and therefore the only fact left for adjudication is whether the accused was driving the offending vehicle in a rash and negligent manner.
18. The complainant in his examination in chief simply stated that the offending vehicle was being driven by the accused in high speed and in a rash and negligent manner however no manner how the same will be amounting to rash and negligent driving on part of the accused was being explained by the witness. It is no more res intgra that the only high speed cannot prove rash and negligent driving.
19. To appreciate the facts in the right way, it is important to know the meaning of expression 'Negligence' and 'Rashness' which is nowhere explained in IPC. Meaning of expression 'negligent act' and 'rashness' came up before the Apex Court in the case titled as Prabhakaran v. State of Kerala, (SC) 2007(3) R.C.R. (Criminal) 605 and the Hon'ble Apex Court held as under :
(1) 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.
(2) Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the FIR No. : 90/17 Page 11 of 17 Pages 12 hope that it will not. Negligence is a breach of duty imposed by law.
(3) Criminal rashness means hazarding a dangerous or wanton act with 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.
20. In Ram Avtar Vs State of Rajasthan, the Hon'ble Rajasthan High Court has held as follows:
"6.....Thus, the essential ingredient for offence under Section 279, IPC is that the vehicle should be driven in "rash and negligent manner". The concept of rashness and negligence is borrowed from the law of tort into the criminal law. But in criminal law for rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. On the other hand, 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, 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 (Ref. To AIR 1944 Lah. 163). Hence, the prosecution has to prove the existence of these two elements to bring home the offence under Section 279, IPC. However, the mere fact that accused was driving vehicle at high speed may not attract provision of Section 279, IPC. For, speed of a vehicle is not always determinative of the question whether vehicle was driven in a rash and negligent manner. One has to consider the surrounding FIR No. : 90/17 Page 12 of 17 Pages 13 circumstances of the case to conclude whether the driving was done in rash and negligent manner or not?"
21. The Hon'ble Supreme court in the case titled as "S. N. Hussain Vs. State of Andhra Pradesh, AIR 1972 SC 685" has held as under:-
"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.......". It has been further observed in S. N. Hussain (Supra) as under:
"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....."
22. Similarly, the Hon'ble Supreme Court of India in Mohammed Aynuddin v. State of Andhra Pradesh, (2000) 7 SCC 72 held:
"A rash act is primarily an over-hasty act. It is opposed to a deliberate act. Still, a rash act can be a 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 consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public FIR No. : 90/17 Page 13 of 17 Pages 14 generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
23. Further the Hon'ble Supreme Court of India in the judgment of "Rathnashalvan v State of Karnataka" (2007) 3 SCC 474 has observed as under:
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 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.
8. As noted above, "Rashness" consists in hazarding a dan-
gerous 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 reck-
lessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable FIR No. : 90/17 Page 14 of 17 Pages 15 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 ac-
cused person to have adopted.
24. Thus, Rashness means doing an act with the knowledge that it might cause an injury and still doing the same with recklessness or having indifference to the consequences whereas Negligence implies failure of taking reasonable and proper care which a prudent person in the circumstances at hand would take it.
25. In the present case, apart from the testimony of injured Yogesh Kumar there is no other evidence with respect to the manner in which the accused was driving the vehicle on the fateful day. The PW1 has deposed in his testimony, " In the meanwhile, one bullet motorcycle bearing registration no. DL-AS-0333 came from the back side which was being driven in a very high speed and in a rash and negligent manner and the said bullet motorcycle hit my motorcycle and fell on the road and sustained injuries". This is the only evidence against the accused with respect to his manner of driving, however, in the considered opinion of this court, this evidence is not alone sufficient to impute criminal rashness and negligence to the accused. The testimony of the injured on some points does not inspired the confidence of the court. For example, in his cross examination, PW1 stated that his motorcycle was having the back view mirror however, as per the mechanical inspection report there was no back view mirror. It is also not disputed that the accused has hit the motorcycle of the victim from behind. In the cross examination, the PW1 deposed that the speed of the offending vehicle might have been 70 KmPh. This court is unable to understand as to how the victim, in the absence of having any back view mirror, can tell about the speed of the offending vehicle or that the same was being driven in a rash and negligent manner. It is also not in dispute that the in the accident, both the victim and the accused suffered injuries.
26. The site plan does not specifically show the location of both the vehicles FIR No. : 90/17 Page 15 of 17 Pages 16 rather the spot where the accident occurred was marked as 'A' in the site plan. Though there were no specific questions asked about the width of the road and specific location of the vehicles involved in the accident, however a bare look at the site plan shows that where the accident occurred was not the extreme left of the road rather seems to be, if not middle of the road but a left lane of the road. It is the case of the Prosecution that when the victim was getting down from his motorcycle to visit the Lord Hanuman's temple, the offending vehicle hit his motorcycle from behind. However the point 'A' shown at the site plan does not seem to be a place where the motorcycle can be stopped and parked. There is always a possibility that the victim took sudden break on the road to visit the temple due to which the accident occurred and the benefit of the doubt has to be given to the accused.
27. It is also pertinent to mention here that PW1 in his testimony, only deposed that the offending vehicle was being driven in a high speed in a rash and negligent manner and the said vehicle hit his motorcycle due to which he fell on the road and sustained injuries. Nothing is there in his testimony which proves that the offending vehicle was being driven in a rash and negligent manner. PW1 in his testimony only mentioned that the offending truck was driven in a rash and negligent manner, however how he came to the conclusion that the said vehicle was driven in rash and negligent manner was not deposed by him. PW1 deposed that the offending vehicle was driven in a high speed. However being driven in high speed is not enough for proving Rash and Negligent driving. As per the judgment passed by Hon'ble Supreme Court in the case of "Ravi Kapur Vs State of Rajasthan" (2012) 9 SCC 284, the speed is not the determinative factor for coming to the conclusion that the person was driving rashly and negligently. It was also observed in the judgment of "State of Karnataka Vs Satish"
(1998) 8 SCC 493 as under:
4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed".
"High speed" is a relative term. It was for the FIR No. : 90/17 Page 16 of 17 Pages 17 prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur"...
28. By going through the above discussion, this court is of the view that prosecution is failed in proving the offence u/s 279/338 IPC against accused Dinesh Kumar beyond reasonable doubt and resultantly, the accused Dinesh Kumar is hereby found not guilty and stands ACQUITTED for the offence u/s 279/338 IPC. The B/B & S/B, if any stands discharged. All the points of determination are decided accordingly.
29. The original documents of the sureties, if any on record, be released to the said sureties after cancellation of the endorsements thereupon as and when so applied.
File be consigned to record room after due compliance.
Announced and Signed in the Open Court
on 25.07.2022 Digitally signed by
SURBHI SURBHI
Date: 2022.07.25
16:05:40 +05'30'
(Surbhi)
MM-12/DWK/SW/New Delhi
25.07.2022
FIR No. : 90/17 Page 17 of 17 Pages