Delhi District Court
State vs . Dinesh Kumar on 19 March, 2018
STATE VS. DINESH KUMAR
IN THE COURT OF SH. VIJAY KUMAR JHA, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SHAHDARA), KKD COURTS DELHI.
FIR No.445/2009
PS : Anand Vihar
U/S 279/304 A IPC
Reg. No.80053/2016
State vs. Dinesh Kumar
a) Serial No. of the case : 02402R0013992010
b) Date of Institution : 15.01.2010
c) Date of commission of offence : 08.10.2009
d) Name of complainant : Ct. Karambir
e) Name of the accused, and : DineshKumar
parentage and address S/o Sh. Phool Singh
R/o Village - Kathuwar,
PS Kasola, Dist -
Riwari, Haryana.
f) Offence complained of :U/S 279/304 A IPC
g) Plea of the accused :Pleaded not guilty
h) Date of judgment reserved : Not reserved
i) Final order : Acquittal
j) Date of such Order : 19.03.2018
JUDGEMENT
1. The case FIR was registered on the written information of FIR NO.445/2009, PS Anand Vihar Page 1/12 STATE VS. DINESH KUMAR Constable Karamvir who had informed that on the date of the incident i.e. 7/8.10.2009, he was on patrolling duty and had seen that a Truck bearing No. HR 553324 was coming from the side of Anand Vihar bus stand at a high speed which was driven rashly and negligently and it wanted to overtake some vehicle. There were some gravel lying on the side of the road, coming on which the offending vehicle lost its control and fell on the motorcycle driver who received serious injuries. The Constable Karamvir got the vehicle stopped the vehicle and apprehended the driver of the offending vehicle was name was revealed to be Dinesh. Meanwhile someone had called on telephone number and when the police came, he handed over the accused to the investigating officer. The injured Sanjay Raj was taken to the hospital whoever the injured expired. After the completion of the investigation chargesheet under section 279 and 304A of Indian Penal Code.
2. Vide order dated 12.03.2010 the accused was given notice under section 251 of Code of Criminal Procedure for the commission of offences under the aforesaid sections. The accused pleaded not guilty and claimed trial.
3. In order to prove the case against the accused the prosecution has examined the following witnesses viz.:
1) Constable Kishor Kumar as PW1 who on the date of the FIR NO.445/2009, PS Anand Vihar Page 2/12 STATE VS. DINESH KUMAR incident that is on 08.10.2009 along with the investigating officer of the case SI Madan Lal had taken part in the investigation. The accused was arrested by the investigating officer in the presence of PW1.
2) Constable Sanwar Mal as PW2 who on the date of incident after the receipt of the information of the accident had reached at the spot that is railway fly over on the road from Anand Vihar to Seema Puri that is road no. 56. PW2 had taken the rukka to the police station for registration of FIR and thereafter returned back and handed over the rukka and copy of FIR to head Constable Pushpender.
3) Head Constable Pushpender as PW3 who on the date of incident after the receipt of information regarding the accident reached at the spot and had taken some part in the investigation of the case before SI Madan was handed over the investigation of the present case.
4) ASI Chander Pal as PW4 who on the date of incident was on emergency duty in the police station and received the information of death of the injured and thereafter went to the Dr. Hedgewar hospital and collected the documents regarding the death of the injured.
5) Head Constable Bhoop Singh as PW5 who on the date of incident was posted at PCR who after receipt of the FIR NO.445/2009, PS Anand Vihar Page 3/12 STATE VS. DINESH KUMAR information regarding the accident had reached at the spot and took the injured to the hospital.
6) SI Madan Lal as PW6 who was the investigating officer in the present case.
7) Constable Karambir who is the eye witness and the complainant in the present case has been examined as PW7.
4. After all the witnesses of the prosecution were examined the accused was examined under section 313 of Code of Criminal Procedure. The accused denied all the incriminating facts as came up in the deposition of witnesses of the prosecution. The accused also stated that they had been falsely implicated in the present case. The accused did not examine any witness in support of his defence.
5. The doing of a rash or negligent act, which causes death, is the essence of section 304 IPC. Under section 32, Indian Penal Code, the act includes 'illegal omission'. Therefore, if an illegal omission occurs as a result of negligence, which results in death, then this section will apply.
6. The term; 'negligence' as used in this section does not mean mere carelessness. The rashness or negligence must be of such nature so as to be termed as a criminal act of negligence or rashness. Section 80 of the Indian Penal Code provides; 'nothing is an offence which FIR NO.445/2009, PS Anand Vihar Page 4/12 STATE VS. DINESH KUMAR is done by accident or misfortune and without any criminal knowledge or intention in the doing of a lawful act in a lawful manner by a lawful means and with proper care and caution'. Neither section 279 nor 304A of Indian Penal Code punishes for mere accident, misfortune or error of judgment. It is absence of such proper care and caution, which is required of a reasonable man in doing an act, which is made punishable under this section.
7. It is the degree of negligence, which really determines whether a particular act would amount to a rash and negligent act as defined under this section. It is only when the rash and negligent act is of such a degree that the risk run by the doer of the act is very high or is done with such recklessness and with total disregard and indifference to the consequences of this act, the act can be constituted as a rash and negligent act under this section. Negligence is the gross and culpable neglect or failure to exercise reasonable and proper care, and precaution to guard against injury, either to the public generally or to an individual in particular, which a reasonable man would have adopted. (See S. N. Hussain v. State of AP AIR 1972 SC 685).
8. In order to impose criminal liability under section 304A of Indian Penal Code, it is essential to establish that death is the direct result of the rash and negligent act of the accused. It must be causa FIR NO.445/2009, PS Anand Vihar Page 5/12 STATE VS. DINESH KUMAR causans the immediate cause, and not enough that it may be causa sine qua non proximate cause. (Ref. Suleman Rahiman Mulam v. State of Maharashtra AIR 1968 SC 829; Ambalal D Bhatt v State of Gujarat AIR 1972 SC 1150).
9. A rash act is primarily an overhasty act. Negligence is a breach of a 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.
10.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: "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 FIR NO.445/2009, PS Anand Vihar Page 6/12 STATE VS. DINESH KUMAR 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."
11.In the present case the deposition of the witnesses have to be analysed in order to find out if the bus which the accused was driving with which the accident happened and the victim died was being driven by the accused either rashly or negligently in order to fasten the liability of section 304A of Indian Penal Code.
12.The entire case of the prosecution is pivoted on the complaint and the deposition of Constable Karamvir Ex. PW7/A as per which the FIR NO.445/2009, PS Anand Vihar Page 7/12 STATE VS. DINESH KUMAR complainant was not only the eye witness of the accident in which the injured Sanjay Raj expired, but Constable Karamvir had also seen the manner in which the accident had happened but also saw that the offending vehicle was being driven as high speed and in rash and negligent manner. But when Constable Karamvir was examined as PW7, he did not support the case of the prosecution at all. In examinationinchief PW7 deposed, "...When I reached at the spot present incident had already occurred and I came to know through the public persons that present incident occurred. It was not cleared through the said public persons as to whether motorcyclist who sustained injury in the present incident slipped on his own due to said small stones or he fell down due to the rubbing of said truck. I do not remember the complete registration number of said motorcycle, however, number of said motorcycle might be 7170. I made a call at 100 number. Some time later HC Pushpeshnder from the PS reached at the spot and prior to his arrival at the spot, PCR had taken injured to hospital. 10 recorded my statement which is Ex.PW7/A bearing my signature at point A. 10 prepared the site plan at my instance... When I reached at the spot, accused driver was present there and his name came to me known as Dinesh. When I reached at the FIR NO.445/2009, PS Anand Vihar Page 8/12 STATE VS. DINESH KUMAR spot, public persons had already apprehended the accused by stopping the said truck." PW7 even did not recognize the accused in the court.
13.The Ld. APP for the State has crossexamined PW7 at length, but even in the crossexamination nothing supporting the case of the prosecution has come on record.
14.It may be noted that what has been deposed to by PW7 in his deposition before the court is absolutely contrary to the complaint Ex. PW7/A which has been signed to by PW7 at point 'A', but the demeanour of PW7 was such that there was no doubt in the mind of the court that the deposition of PW7 before the court was not the truth or that PW7 was kind to extend any kind of illegal help to the accused person by turning hostile. It has been observed many a times that when any fatal accident happens, because of various reasons; sometimes for the reasons that the legal heirs of the deceased victim may be compensated in Motor Accident Claim, the investigating officer weaves such a web of the accident which is not completely and always true. In the present case also the court is unable to reach to the conclusion if or if not what PW7 had signed as Ex. PW7/A was the real truth or not, but to make the scapegoat out of PW7 would be too much when there are systemic reasons for the fiasco which has happened with respect to the FIR NO.445/2009, PS Anand Vihar Page 9/12 STATE VS. DINESH KUMAR present case in the court.
15.The court need not point out what those failures are, they are in fact the open secret i.e. the lack of adequate manpower and training in the police force.
16.When any accident happens there is no scientific investigation of any kind; the main motive of the investigating officer is to find an eyewitness whose statement could be recorded and the case can be shown as worked out. The court has observed some cases where there were no eyewitness, eye witnesses have been planted so that the investigation can be completed and chargesheet be filed. At the same time the court is also aware of the work load which is upon the investigating officer because of which such kind of investigative methodologies have been invented.
17.It view of the discussion herein above the court is of the opinion that the prosecution has failed to prove beyond reasonable doubt that it was the accused who caused the death of the deceased Sanjay Roy by rash and negligent act in driving the Truck. It may also be stated that the words, 'fast speed, rashly and negligently' does not have an magical effects in so far the proving of the offence under section 304A of Indian Penal Code is concerned. 'Fast speed' is a relative terms and what is a fast speed would vary FIR NO.445/2009, PS Anand Vihar Page 10/12 STATE VS. DINESH KUMAR from person to person. If it is assumed that the accused in the present case was rash and negligent as the accused was driving the Truck at a fast speed at the time of the accident, there is nothing on record to find out as to what actually was he speed of the Bus immediately before the accident. Driving a Truck at a fast speed may or may not be rash and negligent act ipsofacto, but it can also be a rash and negligent act depending upon other variable factors as the condition of the traffic, pedestrian, locality etc. Under section 304A Indian Penal Code what is punishable is the rash and negligent act and not bonafide error of judgment in driving or an inevitable accident. If it were not so, then to convict an accused what would have been required to be proved would have been only the fact of the accident. In the present case the negligence could be that of the person/department who had left the gravel on the sides of the road when the accident had happened.
18.The accused is also charged with the offence under section 279 of Indian Penal Code and material ingredients of the said section is also rashness and negligence in driving. When the prosecution has failed to prove the offence under section 304A of Indian Penal Code, the court is of the opinion that the charge under section 279 Indian Penal Code has also to fail on the same reasons and logic on which the charge under section 304A of Indian Penal Code has FIR NO.445/2009, PS Anand Vihar Page 11/12 STATE VS. DINESH KUMAR failed against the accused.
19.In view of the aforesaid discussion the accused is acquitted for the offences under section 279 and 304A of Indian Penal Code.
20. Copy of judgment be sent to the Worthy Commissioner of Police for information. VIJAY Digitally signed by VIJAY KUMAR KUMAR JHA Date: 2018.05.14 JHA 13:03:39 +0530 Announced in Open Court (VIJAY KUMAR JHA) on 19.03.2018 Additional Chief Metropolitan Magistrate Shahdara Distt., KKD Courts, Delhi FIR NO.445/2009, PS Anand Vihar Page 12/12