Delhi District Court
Vishnu Kumar vs The State ( Govt. Of N.C.T. Of Delhi ) on 11 November, 2009
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IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE 01/SOUTH
PATIALA HOUSE COURT
CRIMINAL REVISION NO. 120/2008/2004
Vishnu Kumar
S/o Shri Kulbir,
R/o 281/15, Vill. Tehkhand,
Okhla Phase-I,
New Delhi. Petitioner
Versus
The State ( Govt. of N.C.T. of Delhi ) Respondent
Date of Institution : 16/10/08
Date when arguments
were heard : 01/10/09 and 04/11/09
Date of Order : 11/11/09
JUDGMENT
The present revision petition under Section 397/401 of the Criminal Procedure Code is filed against the judgment dated 10/9/2004 and order on sentence dated 15/9/2004, passed by Ld. Metropolitan Magistrate, whereby the appellant herein was convicted for offences under Section 304-A/279 IPC sentencing him to R.I. of three months and fine of Rs. 5,000/- under S, 304-A IPC and fine of 2 Rs. 500/- and 15 days S.I. under S. 279 IPC.
The prosecution case in brief is that on 03/10/97 at 7.10 a.m. near A-71, East of Kailash Kaptain Gaur Marg accused was driving bus bearing No. DL-1PA-0106 in rash and negligent manner and at bus stop of East of Kailash when bus passenger Arun Yadav tried to get down accused suddenly started the bus as a result of which Arun Yadav fell down on the road and his head came under the rear wheel of the bus and he died on the spot.
Notice under Section 251 CrPC for the offences under Sections 279 and 304A IPC was given to the accused by learned trial court on 12/02/1999 to which he did not plead guilty and claimed trial.
In support of its case prosecution has examined seven witnesses in all namely, PW2 ASI Khazan Singh, PW3 SI Bhag Singh, PW4 Ram Narain Yadav, PW5 Sh. Ram Chander Rai, PW6 HC Jai Prakash, PW7 Ct. Puram Mal and PW8 Sh. Dinesh Kumar.
Although, the petitioner has filed revision petition against impugned judgment and order on sentence passed by learned Metropolitan Magistrate but since the fine imposed was exceeding Rs. 3 2,00/-, the clause (b) of Section 376 CrPC is not attracted and the appeal and not the revision petition lies against the impugned judgment and order on sentence. Therefore, by invoking the power under Section 397 read with Section 2 of Section 399 CrPC and sub section 5 of Section 401 CrPC, the revision petition which is filed by the petitioner/convict within prescribed period of limitation is treated as appeal in the interest of justice.
Ahlmad is, therefore, directed to register the present revision petition as appeal.
The contention of counsel for the appellant was that the trial court did not properly appreciate the facts of the case and the evidence on record. He submitted that as a driver, the appellant was fully aware of the fact that dropping or picking up persons in between the bus stops, i.e. any other place other than the bus stops is an offence and no challan in this regard was brought on record by the prosecution and thus, the statement of PW4 Ram Narain Yadav, in this regard cannot be relied upon. He urged that there is nothing on record to prove that PW4 was an eye-witness to the incident and was 4 travelling in the bus with the deceased. He averred that it was for the conductor of the bus to point out to the driver/appellant some passengers were alighting the bus and he should wait till they alight as the same falls under the duty of the conductor, but the conductor did not do so and hence the appellant cannot be held liable for the same. Also, it was the duty of the deceased to see as to not to get down from a moving bus, which is dangerous to his life. He also submitted that the deceased himself was at fault as he got down from the rear gate of the bus instead of the front door. The counsel also pointed out that the ingredients of the offences for which the appellant has been convicted are not made out as is evident from the evidence on record and thus, the impugned judgment and order on sentence deserves to be set aside. He relied on decision in Syed Akbar vs. State of Karnataka - AIR 1979 SC 1848 : 1979 CriLJ 1374 (SC) in support of his contentions.
Refuting the same, Ld. APP submitted that there is no infirmity in the judgment and the order of conviction passed by the trial court. He urged that the present appeal has no merits and should be 5 dismissed forthwith.
I have heard Ld. Counsel for the appellant and the Ld. Addl. Public Prosecutor for the State and perused the record.
The Apex Court in Rathnashalvan Vs. State of Karnataka, (2007) 3 SCC 474, while interpreting Section 304-A IPC held as under:
"7. Section 304-A 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 304-A. 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 6 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 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.
9. 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 (luxuria). Culpable negligence is acting without the consciousness that the 7 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 neglect of the civic duty of circumspection." (See Nidamarti Nagabhushanam, In re1, Mad HCR pp.
119-20.)"
Similarly, the Apex Court in Shankar Narayan Bhadolkar Vs. State of Maharashtra, (2005) 9 SCC 71 held as under:
"18. Coming to the plea of the applicability of Section 304-A, it is to be noted that the said provision relates to death caused by negligence. Section 304-A 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 relates to offences outside the range of Sections 299 and 300 IPC. It applies only to such acts which are rash and negligent and are directly the cause of death of another person. Rashness and negligence are essential elements under Section 304-A. It carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder in Section 300 IPC. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is 8 culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A IPC has to make room for the graver and more serious charge of culpable homicide.
19. In order to be encompassed by the protection under Section 304-A there should be neither intention nor knowledge to cause death. When any of these two elements is found to be present, Section 304-A has no application. The accused-appellant not only picked up the gun, unlocked it for use but also put the cartridges and fired from very close range, aiming at a very vital part of the body.
20. In the background facts as highlighted above, the inevitable conclusion is that Section 304-A has no application."
The Apex Court while drawing the distinction between rash act and negligent act in Bhalachandra Waman Pathe Vs. The State of Maharashtra, 1968 ACJ 38, held as under:
"An offence under Section 304-A 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 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 9 exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Again as explained in Nidamarti Negaghushanam's case, 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 civil duty of circumspection."
In the instant case, the appellant admitted in his S. 313 CrPC statement that he was plying the bus under rear tyre of which the deceased was crushed. Pw4 Ram Narain Yadav and PW 5 Ram 10 Chander Rai, who were co-passengers in the same bus with the deceased deposed before the court that the deceased asked the driver of the bus to stop the bus as he wanted to alight the bus and the driver slowed down the bus but did not stop it completely and when the deceased was stepping down from the slowing bus, the driver suddenly accelerated the bus, resulting in the falling of the deceased on the road and the rear tyre of the bus ran over the head of the deceased, causing his instantaneous death. These witnesses also stated that the appellant was driving the vehicle in a rash and a negligent manner, which caused instantaneous death of the deceased. Also, no suggestion was given to the prosecution witnesses that the deceased alighted from the rear door of the bus and no where on the record it has come that the deceased alighted from the rear door of the bus. The said plea was also not taken before the trial court by the appellant and it is only before this court that the said plea is taken by the appellant. As regards the conductor having not examined by the prosecution, I do not find any merit in the said contention since, no particular number of witnesses is required for 11 proof of any fact as per Section 134 of Indian Evidence Act.
The decision in Syed Akbar's case (supra), has no bearing on the facts of the present case as the fact-situation therein is different from the case at hand and is thus of no assistance to the appellant. In view of the foregoing, there is sufficient material and the same has been rightly assessed by the Ld. Trial court while convicting the appellant. I do not find any irregularity, impropriety or material defect in the judgment of the trial court. Therefore, the present appeal fails and resultantly the judgment dated 10/9/2004 passed by Ld. Metropolitan Magistrate, is entitled to be confirmed for the conviction of appellant under Section 304A IPC.
One technical question that arises is whether conviction and sentence both under section 279 and section 304-A of IPC is permissible under the law as the latter section is the aggravated form of the former section. If a person is guilty of an offence under s 279, IPC, and death is also caused as a result of the negligent act, he will 12 be guilty of the offence under s 304A, IPC, because an offence under Section 279 is a minor offence which is included in Section 304A, IPC. (See Esco Mathew v State of Kerala 1967 Ker LJ 227). An accused, convicted under s 304A, IPC, therefore, cannot be convicted under Section 279 as the latter is a minor offence. (Shiva Ram v State 1965 All 196, (1965) 1 Cr LJ 524; Ranjit Singh v State of Haryana 1988 Chand Cr Cases 516 (P&H)). Our Delhi High Court has also taken a similar view and it was held that there was no need to impose any separate sentence for minor sentence under sections 279 because the offence under sections 304A and 338, IPC, are similar offence and aggravated forms. Thus the sentence imposed under section 279 was set aside (See Abdul Hameed v State (1990) 41 DLT 306, 307; Hamid Khan v State 1996 (1) Crimes 465 (Del). Therefore, where a person is convicted and sentenced under section 304A IPC a separate conviction under Section 279, for the minor offence which is included in the offence under s 304-A, is not justified. (See, Shiv Ram versus State AIR 1965 All 196).
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In the light of the above legal position and authorities the conviction and the sentence imposed upon the appellant/convict/accused by the learned trial court for the offence under Section 279 IPC are liable to be set aside. Hence, though appellant is liable to be convicted under Section 304A IPC but his conviction under Section 279 IPC is not proper, in view of the above case law. Therefore, conviction under Section 279 IPC is liable to be set aside.
In view of the above discussion, the appeal is partially allowed. The part of appeal is allowed so far as conviction of appellant under Section 279 IPC is concerned but the appeal is dismissed so far as the conviction of the appellant under Section 304A IPC is concerned. As regards, the sentence imposed by the learned trial court, the same cannot be said to be excessive and is also confirmed so far as Section 304A IPC is concerned. The fine imposed under Section 279 IPC, however, is liable to be refunded. The judgment be sent to the server (www delhidistrictcourts.nic.in). The trial court record be 14 returned along with the copy of this order. The bail bonds furnished in appeal are discharged. Copy of judgment be supplied to appellant. The appeal file be consigned to the record room.
Announced in the open Court on 11/11/09 (S. K. SARVARIA) Additional Sessions Judge Patiala House Courts/New Delhi 15 The accused was convicted by the Ld. MM u/S 279 IPC and 304A IPC and was sentenced to Simple Imprisonment for 15 days and to pay fine of Rs. 5,00/- u/S 279 IPC and Rigorous Imprisonment for 3 months and to pay fine of Rs. 5,00/- u/S 304A IPC. As his revision converted in the appeal is decided today, the conviction and sentence u/S 279 IPC is set aside but conviction and sentence passed u/S 304A IPC i.e. Rigorous Imprisonment for 3 months and fine of Rs. 5,000/- is confirmed. The fine is already paid by the appellant Vishnu Kumar in the trial court. Therefore, he is being sent to jail to undergo Rigorous Imprisonment for the period of 3 months for the offence u/S 304A IPC.
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