Delhi District Court
State vs . Hari Shankar. on 2 May, 2015
IN THE COURT OF SH. SAURABH PRATAP SINGH LALER
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
EAST:KARKARDOOMA COURT: DELHI
FIR No. 312/11
PS: New Ashok Nagar
U/s 279/338/304A IPC
STATE Vs. HARI SHANKAR.
JUDGMENT
A Unique ID No. of the 02400R0339292013 case B Date of commission of offence. 01/10/11 C Name of the Payal D/o Sh. Pramod Kumar, R/o Gali No. 8 complainant Ganga Vihar, Khoda Colony, UP.
D Name of the accused & Hari Shankar, S/o Sh. Dheeraj Singh, R/o his parentage and Village Bairangpur, Nai Basti, Dadri, G.B. address Nagar.
E Offence complained of 279/338/304A IPC F Plea of the accused Pleaded not guilty G Order Reserved on 02/05/15 H Final Order Acquitted. I Date of such order 02/05/15
BRIEF STATEMENT OF THE REASONS FOR THE DECISION ALLEGATIONS The story of the prosecution is that on 1.10.2011 at about 4PM in front of Hanuman Mandir, Mayur Vihar, PhaseIII, Delhi, falling within the jurisdiction of Police Station New Ashok Nagar, accused Hari Shanker was driving a car bearing FIR No.312/11 PS:NEW ASHOK NAGAR STATE Vs. HARI SHANKAR PAGE No.1/13 number UP14TC0247 in a rash and negligent manner and while driving the said vehicle in such a manner, accused struck against one Nikita, who as a result of the injuries received expired on 05.02.2014. Thus, accused Hari Shanker is alleged to have committed offence punishable under section 279/304A IPC.
FIR On the basis of the said allegations and on the complaint of the complainant Ms. Payal, an FIR bearing number 312/11 under section 279/337 IPC was lodged at Police Station New Ashok Nagar on 1.10.2011.
NOTICE After investigation, chargesheet under section 173 Cr.P.C was filed on 09.10.2013.
The accused was summoned to face trial and he was supplied the copy of charge sheet as per section 207 Cr.P.C.
On the basis of the chargesheet, a notice for the offence punishable under section 279/338 IPC was framed against accused Hari Shankar and read out to the said accused person, to which the accused pleaded not guilty and claimed trial on 17.01.2014. However, subsequently upon the death of victim Nikita, a supplementary charge sheet was filed on 29.9.2014 and a notice, in addition to notice dt. 17.1.2014, was framed u/s 304A IPC to which the accused pleaded not guilty and claimed trial.
JUDICIAL RESOLUTION To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that to beyond any reasonable doubt. The three essential ingredients are as follows: (1)That the accident actually took place.
(2)That the accident took place due to rash and negligent driving.
FIR No.312/11 PS:NEW ASHOK NAGAR STATE Vs. HARI SHANKAR PAGE No.2/13 (3)That the accused was the person who was driving the vehicle at the relevant time.
These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Blacks Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by H.L.A.Hart in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently.
"[A] careful consideration is needed of the difference between the meaning of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The word 'negligently', both in legal and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash'as doing something that may not be sensible without first thinking about the possible results.
FIR No.312/11 PS:NEW ASHOK NAGAR STATE Vs. HARI SHANKAR PAGE No.3/13 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 very recent judgment of the Honorable Supreme Court of India elaborating further the requirements of section 304A of IPC. Quoting from Rathnashalvan v. State of Karnataka, (SC) 2007 A.I.R. (SC) 1064.
"Section 304A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of FIR No.312/11 PS:NEW ASHOK NAGAR STATE Vs. HARI SHANKAR PAGE No.4/13 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 : Nidamorti Nagabhusanam 7 Mad. HCR 119)".
In order to prove the above said allegations, the prosecution cited 10 witnesses in the first charge sheet and three witnesses in the supplementary charge sheet, of which the complainant Ms. Payal, D/o Sh. Pramod Kumar has FIR No.312/11 PS:NEW ASHOK NAGAR STATE Vs. HARI SHANKAR PAGE No.5/13 been cited at serial no.1 and victim Ms. Nikita, D/o Sh. Ranjit Singh has been cited at serial no.2. No other eye witness has been cited in the list of witnesses either in charge sheet or supplementary charge sheet.
Ms. Nikita who has been cited as PW2 in the list of witnesses could not be examined as she expired on 05.02.2014 at AIIMS Trauma Centre.
Complainant Payal @ Rakhi D/o Sh. Pramod Kumar, who is a minor, was examined on 27.02.2015 in child witness room, through Video Conferencing.
PW1 Payal @ Rakhi D/o Sh. Pramod Kumar is the complainant in the present case. She has deposed as under: "Q. Do you want to say anything about accident in which Nikita was victim?
Ans. I am not aware of the accident.
Q. Did Police recorded your statement?
An. My statement was recorded by the police but the statement was given on the basis of what people told me.
Q. Whether the signatures at Point X on the complaint dt. 01.10.2011 are yours?
A. The signature at Point X is of mine(statement is accordingly Ex.PW 1/A. At this stage Ld.APP wants to crossexamine the witness as the witness is resiling from her previous statement on the basis of which FIR was lodged. Heard. Request allowed.
XXX by Sh.K.P. Singh, Ld.APP for the State.
The complaint dt. 01.10.2011 is read over to the witness in Hindi. The witness voluntarily states after hearing the statement: the said facts were told to me by a man who had taken injured Nikita to hospital as after hearing that my friend Nikita had met with accident, I had lost consciousness at the spot.
I had the signed statement Ex.PW1/A without reading it.
nd Police had not recorded my 2 statement on the same day. I cannot identify the driver as I have not seen the driver of the offending vehicle. Police had not recorded my statement on 13.10.2011. It is wrong to suggest that the contents of the complaint Ex.PW1/A from point A to A is correct and that I am deposing falsely to the effect that the said statement was not given by me to the Police. It is wrong to suggest that Police officials went along with me to the spot and prepared site plan Mark A at my instance. Vol: Police asked me about FIR No.312/11 PS:NEW ASHOK NAGAR STATE Vs. HARI SHANKAR PAGE No.6/13 the spot at the PS. I have not seen the offending vehicle at the spot as I gained consciousness at Metro Hospital. I was told by my mother that one bhaiya had taken me and Nikita to the hospital. The said bhaiya resides in my neighbourhood and the said bhaiya had informed my brother about the accident. It is wrong to suggest that on 13.10.2011 I had gone to the PS to know about the progress of the case and there I had identified the accused as the driver of the offending vehicle. Vol: I had gone to the PS only on the date of accident.
The witness is shown the Arrest Memo Personal Search Memo on which she admits her signatures at Point X and the same are Ex.PW 2/B and Ex.PW2/C respectively. Witness Voluntarily states: that accused was not arrested in my presence.
It is wrong to suggest that on 13.10.2011 I had seen accused/ driver in the PS New Ashok Nagar and police officials had arrested him in presence vide arrest memo Ex.PW2/B and conducted his personal search memo Ex.PW2/C and that is why the said documents bears my signatures. It is correct that I had gone with my friend Nikita to buy milk. It is correct that after buying milk, me and my friend were coming back together. Vol: On our way back my friend Reena met me. Reena and Nikita were not friends. When Reena met me, Nikita moved ahead away as she had to purchase something from the market. It is wrong to suggest that on 01.10.2011 at about 4PM, when I was crossing the road along with my friend Nikita suddenly one car bearing regd.no. UP14 TC0247 came from Khoda Colony side while being driven by the driver of the said car in high speed and it hit against my friend Nikita because of which she fell on the bonnet of the car and sustained head injuries. It is further wrong to suggest that I am not identifying the accused as driver due to fear. It is wrong to suggest that I am deposing falsely.
XXXX by Sh. Gajendre Singh Bhati, Ld.Counsel for the accused with accused in person.
Nil opportunity given. "
Besides the complainant namely Payal @ Rakhi D/o Sh. Pramod Kumar, there is no other eyewitness who is yet to be examined by the prosecution.
The sole eyewitness/ PW1, who is also the complainant, has not supported the prosecution story. The said witness has not identified the accused as a driver of offending vehicle i.e. Car bearing no. UP14TC0247. Besides the said witness, no FIR No.312/11 PS:NEW ASHOK NAGAR STATE Vs. HARI SHANKAR PAGE No.7/13 other witness can identify the accused as the driver of the offending vehicle, as PW Nikita has expired on 05.02.2014. All the other witnesses are formal witnesses and are not witnesses to the offence of rash and negligent driving.
The prosecution, through the oral testimony of complainant namely Payal @ Rakhi D/o Sh. Pramod Kumar failed to bring forth oral evidence to prove that the accident was caused by the vehicle bearing number UP14TC0247 , which was being driven by the accused Hari Shankar in a rash and negligent manner.
In view of the testimony of sole eye witness available, the testimony of all the remaining witnesses together is insufficient to prove the allegations against the accused qua offences u/s 279/304A IPC.
The case is at the stage of PE, however, in view of the testimony of sole eye witness available, there is nothing incriminating against the accused for proceeding further and recording the statement of remaining formal witnesses would be futile and wastage of judicial time, resources and money.
In the opinion of the court, the present case is squarely covered by the judgment cited above and a fit case where the court should exercise its power under section 258 of Cr.P.C and stop the proceedings qua offences u/s 279/304A IPC as continuing with trial will not only be wastage of state money rather it will also be wastage of judicial time and harassment to the accused.
In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials FIR No.312/11 PS:NEW ASHOK NAGAR STATE Vs. HARI SHANKAR PAGE No.8/13 and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. Section 258, in Chapter XX of Cr.P.C., on Trial Summons cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and FIR No.312/11 PS:NEW ASHOK NAGAR STATE Vs. HARI SHANKAR PAGE No.9/13 terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) "30.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596) and Raj Deo Sharma (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold: (1) The dictum in A.R. Antulay's case is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the factsituation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The timelimits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo FIR No.312/11 PS:NEW ASHOK NAGAR STATE Vs. HARI SHANKAR PAGE No.10/13 Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Case (I) and (II) . At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such timelimits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused. (5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary - quantitatively and qualitatively by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied) In "Pankaj Kumar v. State of Maharashtra" AIR 2008 SUPREME COURT 3077 (Coram : 2 C. K. THAKKER AND D. K. JAIN, JJ.)the Honorable Supreme Court, while relying upon the aforesaid judgment, observed:
"16. Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down timelimits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" A FIR No.312/11 PS:NEW ASHOK NAGAR STATE Vs. HARI SHANKAR PAGE No.11/13 Registered Society Vs. Union of India (UOI) and Ors., "Common Cause", A Registered Society Vs. Union of India and Ors., Raj Deo Sharma Vs. State of Bihar and Raj Deo Sharma II Vs. State of Bihar gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a sevenJudge Bench of this court in P. Ramachandra Rao Vs. State of Karnataka. Speaking for the majority, R.C. Lahoti, J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the factsituation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgments were held to be not in consonance with the legislative intent." (emphasis supplied) Accordingly, in the opinion of the court, in the light of the above cited judgments, the court needs to exercise its power under section 258 Cr.P.C qua offences u/s 279/304A IPC to make the ends of justice meet.
FIR No.312/11 PS:NEW ASHOK NAGAR STATE Vs. HARI SHANKAR PAGE No.12/13 FINAL ORDER In the light of the aforesaid discussion and cited judgments, the court while protecting the right of the accused to have speedy justice invokes the power conferred upon it under Sec.258 of Cr.P.C to stop the proceedings against accused Hari Shankar qua offences u/s 279/304A IPC in the present summons police case and hereby releases accused Hari Shankar under sections 279/304A IPC , which shall have the effect of acquittal.
Hence, PE stands closed, S.A. is dispensed with and accused Hari Shankar is acquitted for u/s 279/304A IPC.
As per section 437A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the accused is directed to furnish fresh personal bond and surety bond in sum of Rs.8,000/ within one week from today, which shall remain intact for a period of six months from today.
File be consigned to Record Room after due compliance.
Announced On 02.05.2015.
(SAURABH PARTAP SINGH LALER) ACMM(East)/ KKD/ 02.05.2015 Certified that this judgment contains 13 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) ACMM(East)/ KKD/ 02.05.2015 FIR No.312/11 PS:NEW ASHOK NAGAR STATE Vs. HARI SHANKAR PAGE No.13/13