Delhi District Court
State vs . Ravi Kumar And Sudershan Kumar. on 15 February, 2012
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN
MAGISTRATE05, SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Ravi Kumar and Sudershan Kumar.
FIR NO: 414/03
P. S. Ambedkar Nagar
U/s 279/304 A IPC
JUDGMENT
Sl. No. of the case and : 209/2 (5.10.2010
Date of its institution : 11.10.2004
Name of the complainant : ASI Sham Sher Singh
Date of Commission of offence : 12.8.2003
Name of the accused persons : 1. Sh. Ravi Kumar
2. Sh. Sudarshan Kumar
Offence complained of : Section 279/304 A IPC
Plea of accused : Not Guilty
Case reserved for orders : 4.2.2012
Date of Judgment : 15.2.2012
Final Order : Sudershan Kumar convicted
Ravi Kumar acquitted
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the prosecution of the accused persons namely Ravi Kumar and State Vs. Ravi Kumar 1/13 FIR no.414/03 Sudarshan Kumar upon a charge sheet filed by the police station Ambedkar Nagar for rash and negligent driving and consequently causing death of the deceased Balasiyush. Initially an FIR was registered in this case for offence u/s 279/304 A IPC.
2. In brief the prosecution's case is that on 12.8.2003 ASI Shamsher Singh received a DD no. 25 at police post, Madangir at around 8.55 pm that there was an accident on bus stand, Chirag Delhi and one person has been injured and has been taken to AIIMS hospital. Thereafter, ASI Shamsher Singh alongwith the Ct. Ved Prakash reached the hospital where they found that the injured was brought dead in the hospital but could not found anyone to identify the deceased. Thereafter, the investigating officer went to the spot and found both the buses that is one DTC bus no. DL 1PB 0783 of route no. 544 and one RTV no. DL 1V 8369 alongwith their drivers namely Ravi Kumar and Sudarshan at the spot but on the spot also he could not find any eye witness. Thereafter an FIR was registered in this case u/s 279/304 A IPC. Later on, eye witness was found. The body of the deceased was identified which after the postmortem was released to his legal heirs. On the strength of the eye witness, both the accused persons were indicted u/s 279/304 A IPC.
3. After completing the formalities, the investigation was carried out by PS Ambedkar Nagar and a charge sheet was filed by the investigating officer indicting the accused persons u/s 279/304A IPC. The notice was framed against the accused Sudarshan u/s 279/304A IPC and u/s 3/181 M.V Act on the ground that the accused Sudarshan was driving the vehicle in rash and negligent manner causing the death of the deceased and also without any valid driving licence and against the accused Ravi Kumar u/s 279 IPC to which they pleaded not guilty and claimed trial.
4. The trial started on framing of notice against both the accused persons and to prove its case, prosecution examined nine witnesses.
State Vs. Ravi Kumar 2/13 FIR no.414/03
5. PW 1 is Ms. Kiran Balta, the wife of the deceased who is a formal witness and came to know about the death of the deceased when she went to the police for registration of FIR for his missing husband. She went to AIIMS hospital, identified the dead body of her husband and also recovered the same.
6. PW 2 is SI Shamsher Singh, the investigating officer who proved the investigation as discussed above.
7. PW 3 is Ct. Devender. He was the DD writer on the date of incident and he proved the recording of DD no.25 at around 8.55 pm following wireless message from S50. The true copy of DD no.25 is Ex.DW3/A.
8. PW 4 is Sh. Sher Singh, Traffic Inspector who deposed that on 13.8.2003, he was posted as ATI at Kalkaji depot. He recovered the bus vide superdarinama Ex.PW4/A. He deposed that the bus was driven by the accused Ravi Kumar whose code was KD30. However, he was unable to identify him.
9. PW 5 is the star witness and the edifice of the prosecution case who deposed that on 12.8.2003 at about 8.308.35 pm he was standing at Chirag Delhi bus stand and waiting for a bus. During this course a DTC bus bearing no. DL 1PB 0783 plying on route no. 544 being driven by the driver whom he identified in the Court came there and stopped. One passenger was trying to board the said bus, fell on the raod as a driver of the said DTC bus/accused all of a sudden accelerated the bus without giving any horn or signal to start the bus. When he fell on the road, a RTV vehicle being driven by the accused whom he identified in the Court came from behind and struck against the said passenger who came under the RTV. The driver of the RTV did not blow any horn or signal to alert the traffic and his speed was so high. Some other persons were also there. Both the drivers stopped their vehicle. Following a call made by public persons, a PCR came to the spot and apprehended the accused persons. Thereafter he went to his house to drop his State Vs. Ravi Kumar 3/13 FIR no.414/03 luggage and again came back at the spot after 15 minutes. Both the accused persons were arrested in his presence, vehicle were also taken into possession by the police. In his cross examination, he denied the suggestion that he was not eye witness to the incident.
10. The next witness is PW 6 HC Jagdish Prasad who was the duty officer and proved the FIR as Ex.PW6/B.
11. PW 7 is Sh. Shadi Lal, mechanical inspector who has done the mechanical inspection of the RTV bus bearing no. DL 1V 8369 and proved his report as Ex.PW7/A.
12. PW 8 is Sh. Gurbax Singh, mechanical inspector who has done the mechanical inspection of the DTC bus bearing no. DL 1PB 0783 and proved his report as Ex.PW8/A.
13. PW 9 is Dr. Shiva Prasad who proved the MLC of the deceased Bala Siyush prepared by Dr. Prashant Kulshreshtha as Dr. Prashant Kulshreshtha has left the hospital. He proved the post mortem examination report as Ex.PW9/A.
14. On the whole this is the prosecution evidence.
15. After the prosecution evidence was recorded, the accused persons were examined u/s 313 Cr.PC and all the incriminating evidences were put to them as required by the provisions of that section. The accused persons had not admitted the evidence put to them and answered that they have been falsely implicated in this case and all the documents are false and fabricated and not examined any witness in defence.
16. After that one witness namely Sh. Vijender Kumar has been examined as DW 1 who deposed that on the date of incident he was the conductor of the DTC bus. The said bus reached at Chirag Delhi and stopped and at that moment one RTV was already standing in a nearby stop. After sometime he heard noise and on State Vs. Ravi Kumar 4/13 FIR no.414/03 inquiry it was found that a person was lying on the right side of the bus. After sometime PCR van reached at the spot and directed him and the said RTV driver to come with the respective vehicle in Police Post Madangir.
17. Arguments of both the sides were heard.
18. On one hand Ld. APP has argued that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt and accused persons be convicted.
19. On the other hand, defence counsel for accused persons respectively have argued that rashness and negligence has not been proved on record. The eye witness when he was recalled for cross examination had admitted that he was not present at the spot at the time of incident. Therefore, his testimony could not be believed. There is no evidence on the record that the accused was driving the vehicle in a rash and negligent manner. The accused persons deserves acquittal in this case.
20. In order to bring home the guilt of the accused, what prosecution has to prove is that the accused was driving the vehicle in question, the driving was rash and negligent and the death of the deceased took place pursuant to such accident. The prosecution has to prove all these ingredients in order to succeed.
21. As far as the first ingredient regarding the identity of the accused persons is concerned, there is sufficient evidence to this effect. This evidence is in the nature of the testimony of the eye witness PW 5 Chotte Lal who has identified both of them in the Court. Not only this, both the accused persons were arrested from the spot as per their arrest memos Ex.PW2/D and Ex.PW2/E in the same night of the accident. The identity of the driver of DTC bus i.e Ravi is further corroborated by the testimony of PW 4 Sher Singh, Traffic Inspector. His testimony is to the effect that the bus no. DL 1PB 0783 DTC released on superdari was being driven by State Vs. Ravi Kumar 5/13 FIR no.414/03 driver Ravi Kumar whose code was KD30. This witness has not been cross examined and his testimony went unrebutted. Although the testimony of this witness PW 4 does not conclusively prove the fact that the accused Ravi was driving the vehicle but it corroborates to some extent this fact. Therefore, all the three evidences conjointly points out to the fact that accused Sudarshan was driving RTV bus no. DL 1V 8369 and the accused Ravi was driving the bus DL 1PB 0783.
22. Now I come to the second requirement of rash and negligent driving. The sole evidence in this case regarding the rash and negligent driving of the accused persons is the evidence of eye witness Chotte Lal. Since there are two accused persons, I will deal with them separately. The genesis of the accident lies in the falling of the deceased from DTC bus driven by the accused Ravi. As per the prosecution's case, the deceased was boarding the bus during which the driver of the DTC bus accelerated the same without giving any horn or signal to start the bus. This is the basis of his indictment in this case and is also described as such in the testimony of PW 5 Chotte Lal. The relevant portion of his testimony regarding the rash and negligent act attributed to this accused is;
" One passenger was trying to board the bus fall on the road as the driver of the said DTC bus/accused present in the Court all of a sudden accelerated the bus without giving any horn or signal to start the bus. Consequently, the said passenger fall on the road".
23. This is the only evidence regarding the rash and negligent driving of this accused Ravi.
24. Rashness and negligence in a case involving a death by negligent driving was explained by Hon'ble Supreme Court of India in Rathnashalvan Vs. State of Karnataka, (SC) 2007 AIR (SC) 1064 wherein it is held that;
""Section 304A applies to cases where there is no State Vs. Ravi Kumar 6/13 FIR no.414/03 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 Section 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 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 State Vs. Ravi Kumar 7/13 FIR no.414/03 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."
25. Negligence is a tort as well as a crime and can be used for the purpose of fastening the defendant with the liability under the Civil law and at times under the criminal law. To fasten the liability in criminal law, the degree of negligence has to be higher than that of negligence to fasten for damages in civil law. The essential ingredients of mens rea cannot be excluded from the consideration when the charge in a criminal Court consist of criminal negligence. In order to hold the existence of criminal rashlessness or or criminal negligence, it shall have to be found out that the rashlessness was of such a degree as to amount to having a hazard, having that the hazard was of such a degree that the injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequence. Against the accused Ravi except for this bald statement that he accelerated the bus despite the deceased trying to board the same, there is no surrounding circumstances which could corroborate the testimony of this witness. It is not deposed by him for how much time, the bus stopped at the bus stop. The signal was to be given by the conductor. Whether there was any signal to start the bus is not told by this witness. He may also not be in the position to hear the same as he was outside the bus. It may also be possible from the testimony of this witness that State Vs. Ravi Kumar 8/13 FIR no.414/03 the deceased might have boarded the bus and after entering into the bus, the driver of the bus started it due to which he fall down. Therefore, the only statement that the deceased fall while trying to board the bus is not sufficient to come to the conclusion that the accused Ravi has accelerated the bus in a rash and negligent manner. The picture needed more specifications and clarifications which are absent in the testimony of this witness. It is not clear whether the deceasd actually boarded the bus or not. The act may be negligent but does not seems to be rash in terms of the law discussed above.
26. Regarding the accused Sudarshan, the relevant portion of the testimony of this witness is;
"When he fall on the road a RTV vehicle, being driven by the accused present in the Court today, came from behind and struck against the said passenger who came under the RTV. This driver of the RTV did not blow any horn or signal to alert the traffic. His speed was so high. 1015 persons were also standing on the road following the accident when the said speedy RTV came up".
27. The testimony of this witness shows that the driver of RTV bus was driving it at a very high speed. It struck the deceased in a rash and negligent manner. This witness states that no horn was blown by this RTV bus.
28. It is a common or garden principle that while driving a big vehicle like that of a passenger bus, if the driver wants to overtake any vehicle that too like a bus proceeding in front of the said bus, the driver should sound or honk the horn giving indication to the driver of the bus to give way for him to over take and as a matter of rule the overtaking should always be done from the right side of the preceding vehicle. As per the testimony of the eye witness, the injured fall while trying to board the bus and since the door of the bus was on its left side, the deceased would have fallen on the left side of the DTC bus. In the present case, the driver of State Vs. Ravi Kumar 9/13 FIR no.414/03 RTV bus without following this rule overtook the DTV bus from its left side that too in a high speed and without any horn or indication. If the speed of the vehicle was high at the bus stop that itself suggest the rash and negligent act on the part of this driver. As a matter of rule the bus should have approached the bus stop in very slow speed and cautiously because a number of other commuters also stands at the bus stop awaiting the bus. The injured as per the cross examination of this witness fall down on the road from the front gate of the bus which means that the RTV would have struck the deceased after coming up to the front gate of the bus from the left hand side. The driver of the RTV bus should not have ventured to overtake or stopped his RTV bus at the left hand side of the DTC bus. He should have stopped his RTV bus behind the DTC bus. But, in this case, it is palpably clear that the driver of the RTV bus did not choose to resort to such a method. Had he resorted to such a procedure, certainly, he would not have struck the deceased and caused this accident.
29. In our current conditions, the law under S.304A IPC have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces. Thus viewed, the circumstances in which the accident took place are also very important. The one person who could offer an explanation regarding the nature of the incident was the accused himself. The explanation of the accused could also be taken note of in the background of the prosecution evidence to find out if he had been rash or negligent while driving the bus. Unfortunately, the accused had not chosen to offer any explanation when he was examined under S.313 Cr.P.C. The only explanation he led is that all evidence are incorrect. Although a person accused of any offence has a right to remain silent but if there are incriminating evidences against than it his duty to explain the same or to rebut it by evidence of his favour. Negligence and rashness are essential elements under Section 304A. State Vs. Ravi Kumar 10/13 FIR no.414/03 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.
30. As such, the Hon ble Apex Court s judgment cited supra would clearly highlight and spotlight the fact that as to what constitutes the rashness and negligence on the part of the driver while driving the vehicle. Here the witness clearly spoke about the rash and negligence of the driver in driving the bus.
31. It is a trite proposition of law that bigger the vehicle, bigger is the responsibility. Unarguably and unassailably, indubitably and incontrovertibly, the State Vs. Ravi Kumar 11/13 FIR no.414/03 offending bus was a big passenger vehicle and while driving such a big vehicle along the public road and that too at the bus stop, the accused driver should have been very careful. The very act of the accused in driving the bus and dashing from behind a fallen passenger of another bus, would speak volumes about the rashness and negligence in driving the vehicle by the driver of the RTV bus.
32. It is not the case of the accused that the accident occurred due to mechanical defect in the vehicle. At this juncture, I would like to make it clear that in this case ocular evidence is clear relating to the rash and negligent act of the accused in driving the bus.
33. The accused Sudershan was also given notice under section 181 MV Act later on. However there is no evidence from prosecution that he was not having a valid driving licence to drive a vehicle. He also could not be able to produce the same . But considering that first it was the duty of the prosecution to have said that he was driving the bus without a valid licence than only the burden could have been shifted on the accused to prove that he holds a valid licence.
34. As far as the third ingredient regarding the death is concerned, there is no doubt that the deceased died in the accident. The death took place instantaneously and the deceased could not even reach the hospital alive which shows the impact of accident. The requirement of section 304 A IPC are that the death of any person must have been caused by the accused doing any rash and negligent act. In other words there must be proof that the rash and negligent act of the accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash and negligent act of the accused. As per the post mortem report, the cause of death was bang injuries produced by blunt force which could be seen in cases of road traffic accident. The nature of injuries mentioned in the post mortem report cannot be sustained simply by falling from the State Vs. Ravi Kumar 12/13 FIR no.414/03 bus and therefore there is no doubt that the cause of injury and consequent death was the result of hitting him by the RTV bus driven by the accused Sudershan Kumar
35. This settles the the issue. The accused Ravi Kumar is acquitted of charges under section 279IPC and the accused Sudershan Kumar is convicted for offence under section 279/304A IPC but acquitted of offence under section 181 Motor Vehicle Act.
Announced in the open court (Samar Vishal)
on 15th February, 2012 Metropolitan Magistrate05,
South East, New Delhi
State Vs. Ravi Kumar 13/13 FIR no.414/03