Delhi District Court
Ca No.42/14 (Ashok Kumar vs . State) on 11 December, 2014
CA No.42/14 (Ashok Kumar Vs. State)
IN THE COURT OF DINESH KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE (SOUTH)
SAKET COURTS : NEW DELHI
CA No.42/14
Unique Case ID No. : 02406R0328872014
Ashok Kumar
S/o Sh. Vijay Pal Singh
R/o H. No. 438, Gali No. 5,
Govindpuri, New Delhi.
...... Petitioner
VERSUS
The State
...... Respondent
Appeal filed u/S.374 Cr.P.C. against the impugned
judgment dtd. 16.09.2014 and order on sentence dtd. 01.11.2014
passed by the Ld. MM
Date of Institution : 28.11.2014
Arguments Heard on: 11.12.2014
Date of Decision: 11.12.2014
O R D E R
1.0 Vide this order I propose to dispose of the appeal filed by the appellant challenging the impugned judgment dtd. 16.09.2014 vide which the appellant has been convicted for the offence u/S 279/304 A IPC and Page 1 of 21 CA No.42/14 (Ashok Kumar Vs. State) the order on sentence dtd. 01.11.2014 whereby the appellant was sentenced to undergo SI for a period of 06 months and fine of Rs. 1000/ in default SI for 02 months u/S 304A IPC and SI for 02 months u/S 279 IPC. Besides this, the appellant was directed to deposit Rs. 5,000/ in DLSA, Saket 2.0 The appellant has challenged the conviction primarily on the ground that the judgment and order on sentence are based on conjectures and surmises and there is no cogent and credible evidence on record to substantiate the rashness or negligence on the part of the appellant. PW4 Sh. Sukhvinder Singh who was the sole eye witness has specifically denied that the accident took place due to the fault of the appellant. 3.0 Perusal of the TCR indicates that on 14/1/07 on receipt of DD No. 5A, PW3 HC Mala Ram and PW1 Ct. Banwar Lal reached on the spot at Outer Ring Road, near IIT Flyover, where the offending vehicle No. DL1PB 011, plying on route No. 548 alongwith its driver / appellant Ashok Kumar were found. The injured had already been taken to AIIMS. PW3 HC Mala Ram left PW1 Ct. Banwar Lal on the spot and went to AIIMS where victim was found admitted vide MLC No. 149. The doctor had declared the victim unfit for statement. In the hospital no eye witness was found, therefore, PW3 reached back to the spot and made an Page 2 of 21 CA No.42/14 (Ashok Kumar Vs. State) endorsement on DD No. 5A on which FIR No. 35/07 u/Ss 279/337 IPC was lodged. The offending vehicle was seized vide seizure memo Ex.PW1/A. Accused was arrested vide arrest memo Ex.PW1/B. The driving license of the accused was seized vide seizure memo Ex.PW1/C. In the meanwhile, victim succumbed to the injuries. During the course of investigation, eye witness PW4 Sh. Sukhvinder Singh could be contacted with the help of mobile No. 9868948844 through which the first information of accident was sent and recorded vide DD No. 5A. PW4 Sh. Sukhvinder Singh stated before police that accident had taken place due to the rash and negligent driving of the appellant. On completion of the investigation, the chargesheet was filed u/S 279/304A IPC. On 27/11/07 being a prima facie case, notice u/S 251 Cr.PC was framed to which accused pleaded not guilty and claimed trial.
Prosecution examined Ct. Bhanwar Lal as PW1. Ct. Bhanwar Lal had gone alongwith PW3 HC Mala Ram to the spot. PW1 stated that when he reached at the spot, the offending vehicle was found in accidental condition and its driver Ashok Kumar also met there. In the cross examination, PW1 stated that when he reached at the spot, no eye witness met them. He further stated that accused was arrested at the instance of eye witness who was called by the IO through telephone. PW1 also stated that siteplan was prepared at the instance of the eye witness who was claiming to be the passenger of the said bus. He further stated Page 3 of 21 CA No.42/14 (Ashok Kumar Vs. State) that IO did not recover any fare ticket from the eye witness nor the said witness produced any ticket.
PW2 Sh. Taslimuddin Siddiqui had conducted the mechanical inspection of the offending vehicle and proved the report as Ex.PW2/A. PW3 HC Mala Ram deposed on oath that on receipt of DD No. 5A he alongwith PW1 Ct. Bhanwar Lal reached on the spot and offending vehicle was found and its driver was also present there. The injured had also been shifted to the hospital. In the hospital also no eye witness was found. The case was registered on the basis of endorsement on DD No. 5A. The testimony of PW3 remained unrebutted.
PW4 Sh. Sukhvinder Singh is the star witness of the prosecution. He has made a brief statement and it would be advantageous to reproduce that statement:
"PW4 Sukhvinder Singh, s/o Sh. Hari Chand, R/o B8/238, Sector3, 3rd Floor, Rohini, Delhi.
On SA On 14.01.2007 I was travelling in bus route no. 548 and going towards Saket. While traveling in the bus reached near IIT flyover near by Public School. In the meanwhile, one lady who was crossing the road came under the bus as the bus driver took a sudden cut and failed to maintain the balance of the bus. Thereafter, the bus was stopped. I also got down from the bus and called at 100 number. Police reached to the spot and took the injured to the AIIMS hospital. Thereafter, I left the place. After sometime, I was called by Police through the phone. The accused who is present in the court today was driving the bus. The accused was driving the bus in normal speed. The accused was arrested by the police vide memo exhibited as Page 4 of 21 CA No.42/14 (Ashok Kumar Vs. State) PW1/B bears my signature at point A. I record my statement. I have nothing to say about this case. I can identify the case property if shown to me. The identity of the case property is not disputed by defence counsel.
At this stage, Ld. APP wants to cross the witness as witness is resiling on some material points.
XXXXX by Ld. APP.
It is incorrect that the accused was driving the bus in rash and negligence manner. It is incorrect that the accident took place due to the fault of accused who is present in the court today. It is wrong to suggest that I have been won over by the accused due to this I am deliberately not disclosing the true facts before the Corut.
XXXXX Sh. BK Singh, Ld. counsel for accused.
Nil. Opportunity.
R.O. & A.C. MM05/SD/Saket/28.02.2013"
The proceedings also indicate that Ld. MM had recorded the statement of appellant /accused u/S 294 Cr.PC wherein he did not dispute the genuineness of PM report No. 61/07 of deceased Om Bhasin and the MLC bearing No. 149. The statement of accused u/S 313 Cr.PC was recorded where in he purportedly denied all the allegations levelled against him. Accused also produced defence evidence to say that he was not driving the vehicle on the said date. On the basis of material on record, Ld. MM vide judgment dtd. 16.09.2014 convicted the accused for the offence u/S 279/304A IPC inter alia believing the testimony of PW4 Sh.Sukhvinder Singh.
4.0 The holding of the criminal trial, where liberty of an individual is involved, is an important exercise and needs to be done with Page 5 of 21 CA No.42/14 (Ashok Kumar Vs. State) utmost care and caution. The Courts of the Magistrates are bestowed with extreme powers by the law, but at the same time the mandate for them is to conduct the proceedings in accordance with the law. The record of the present case indicates that the Ld. MM had a short cut method and has failed to conduct the trial in accordance with the law. There are lacunas in the proceedings at every stage and it seems that Ld. MM just wanted to hurriedly conclude the trial without adhering to the basic principles. To start with, recording of evidence is an important proceedings in the criminal trial. The Court while recording the evidence cannot sit as a mute spectator. The trial is not merely battle of wits. The ultimate quest is to reach to the logical conclusion and to impart justice. It is expected from the Court that the proceedings are recorded so as to elicit the entire material on the record. The Indian Evidence Act also confers power upon the Judge to put question in order to discover or to obtain proper facts. Reference be made to Sec. 165 of the Indian Evidence Act which provides as under:
"165. Judge's power to put questions or order production - The judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to crossexamine any witness upon any answer given in reply to any such question;
Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:Page 6 of 21
CA No.42/14 (Ashok Kumar Vs. State) Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted."
4.1 It is also worthwhile to mention here that the duty of the Public Prosecutor is also very important. The public prosecutor must ensure that complete material has come on the record. The duty of the public prosecutor is not confined only to ensure the conviction of the accused. His duty is to assist the court in proper manner so as to reach to the logical conclusion. It seems that in the present case, Ld. Public Prosecutor has merely completed the formalities and did not care to see that whether entire material has come on the record. This is revealed from the way the testimony of PW3 HC Mala Ram and PW4 Sh. Sukhvinder Singh has been recorded.
5.0 Proceeding further, the way Ld. MM has recorded the statement u/S 313 Cr.PC has much left to be desired. Sec. 313 Cr.PC is again a very important stage in the criminal trial and the criminal courts are required to adhere to this provision scrupulously. Sec. 313 Cr.PC has been defined as under:
Page 7 of 21
CA No.42/14 (Ashok Kumar Vs. State) "313. Power to examine the accused - (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summonscase, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause(b).
(2) No oath shall be administered to the accused when he is examined under subsection (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other enquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section."
In Pradeep Vs. State in Crl. Appeal No. 348/08 dtd. 06/3/2010, the Hon'ble High Court of Delhi while dealing with the arguments challenging the recording of statement u/S 313 Cr.PC inter alia held as under:
"Needless to state, statements of persons recorded during investigation by police officers are not substantive evidence and cannot be made the basis for putting questions to the accused when they are examined under Section 313 Cr.P.C.Page 8 of 21
CA No.42/14 (Ashok Kumar Vs. State) As held in the decision reported as Parichhat vs. State of Maharashtra, AIR 1972 SC 535 Trial Judges must realize the importance of examination of accused under Section 313 Cr.P.C. It is the duty of the Trial Judge to question the accused properly and fairly, bringing home to the mind of the accused, in simple and clear language, the exact case he has to meet and each material point that is sought to be made against him and of affording him a chance to explain it if he can and so desires.
As held in the decision reported as Parsuram Panday vs. State of Bihar, AIR 2004 SC 5068 it is imperative on the Trial Court to give opportunity to an accused to explain every incriminating circumstance proved by the prosecution.
The lynchpin of Section 313 Cr.P.C. are the words "explain any circumstances appearing in evidence against him". This means that every fact from which the Court would draw the inference of guilt against the accused has to be put to the accused. For example, as held in the decision reported as Hate Singh vs. State of Madhya Bharat, AIR 1953 SC 468 if the Court attaches importance to the fact that the accused absconded, the accused should have been questioned on this point and given a change to explain.
In Raj Kumar Singh @ Raju @ Batlu Vs. State of Rajasthan, (2013) 5 SCC 722, inter alia held as under:
"In a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the Page 9 of 21 CA No.42/14 (Ashok Kumar Vs. State) accused in his examination under Section 313 Cr.P.C., cannot be used against him and have to be excluded from consideration.
Similarly in Dharnidhar v. State of U.P. & Ors., (2010) 7 SCC 759, the Apex Court held:
The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 CrPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail that opportunity and if he fails to do so then it is for the court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 CrPC.
In Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012 SC 1357, the Apex Court held as under:
It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires.
But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.
The judgments discussed herein above reveal that recording Page 10 of 21 CA No.42/14 (Ashok Kumar Vs. State) statement u/S 313 Cr.PC is an important stage and required to be recorded in accordance with the principles laid down in Cr.PC. The Court can only put incriminating substantive evidence which has appeared against the accused during the trial. However, in the present case, Ld. MM has not recorded the statement u/S 313 Cr.PC in accordance with law.
It is pertinent to reproduce the statement u/S 313 Cr.PC recorded by the Ld. Magistrate which is as under:
"Statement of the accused Ashok Kumar S/o Sh. Vijay Pal Singh U/s.313 Cr.P.C.
Without Oath Q.1 It is in evidence against you that on 14.01.2007 near Outer Ring Road, IIT Flyover, Laxman Public School at 2.00 AM you were driving the vehicle no.DL1P B0111 in a rash or negligent manner and hit against Uma Bhasin and caused his death not amounting to culpable homicide. What do you have to say?
Ans. It is incorrect that I was not the driver at that time. I was at the home. Driver was Manoj. I have been falsely implicated. Q.2 It is further in evidence of PW4 Sukhwinder Singh that you were driving a bus and one lady who was crossing the road came under the bus and the bus ran over on her. What do you have to say ? Ans. It is incorrect that I was not driving the vehicle at the spot. PW4 is lying.
Q.3 It is further in evidence against you that you were arrested vide memo Ex.PW1/B. Offending vehicle was seized vide memo Ex.PW1/A. Site plan is Ex.PW3/A. What do you have to say ? Ans. I do not know about the official documents. It is correct that I was arrested. But I am innocent.
Q.4 It is further in evidence against you that PM Report of deceased Uma Bhasin and the MLC bearing No.149 of Uma Bhasin already admitted by you in your statement u/S.294Cr.PC. What do Page 11 of 21 CA No.42/14 (Ashok Kumar Vs. State) you have to say ?
Ans. It is correct.
Q.5 Why this case against you ?
Ans. It is a false case. I have been falsely implicated by the injured.
Q.6 Why witnesses have deposed against you ?
Ans. They are interested witnesses.
Q.7 Do you want to lead any defence evidence?
Ans. Yes.
Q.8 Have you to say anything else?
Ans. I am innocent and falsely implicated in the case.
RO&AC MM05(South District)/31.07.2013"
If we see the answer to Q. No.1 and Q. No.2 it would indicate that the answers have been recorded mechanically even without looking that whether they are making out any sense or not. Further, Q. No.1 in statement u/S 313 Cr.PC seems to have been taken directly from the chargesheet, because this Court could not find any such material in the testimony of PW4 Sh. Sukhvinder Singh. It is also mandatory to append a certificate.
Chapter 13 in Instructions to Criminal Courts in Delhi (Vol. III of High Court Rules & Order) deals with confessions and statement of accused persons. It's advantageous to reproduce certain extracts of this Chapter for guidance of Ld. Trial Court:
"9. Accused can be examined to explain the prosecution evidence against him and not to fill up gaps in that evidence - Section 342 of the Code [Section 313 of new Code] empowers the Court to put questions to the accused at any stage of enquiry or trial to enable Page 12 of 21 CA No.42/14 (Ashok Kumar Vs. State) him to explain any circumstances appearing in evidence against him. The questions put under this section must be confined to the points brought out in the evidence and should not be in the nature of cross examination of the accused person. Nor should the power given by the section be used to elicit information from the accused to fill up gaps in the prosecution evidence. For, the conviction of an accused person can only be based on the evidence produced by the prosecution. No oath can be administered to the accused when he is examined under Section 342 and the answers given by him can only be taken into consideration in explanation of the prosecution evidence.
10. Accused can be questioned generally on the case only after prosecution evidence has been finished - The Magistrate is allowed by Section 342 of the Code of Criminal Procedure to examine the accused at an early stage of the case for the purpose of enabling him to explain any circumstances appearing in the evidence against him. This provision is intended for the benefit of the accused, and must not be used to elicit his defence before the prosecution evidence is complete. Magistrate sometimes question the accused generally on the case as soon as a prima facie case has been made out, but before the prosecution evidence is complete. This is incorrect. According to the second part of clause (1) of Section 342, it is only after the completion of the prosecution evidence that the accused can be questioned generally on the case. The necessity for postponing such examination is not avoided by framing a charge at an early stage.
Even when a charge has been framed, the Magistrate should wait until the prosecution evidence is concluded before making a general examination of the accused.
14. Mode of recording examination of accused - Section 364 provides the mode in which the examination of an accused person is recorded. The questions put to the accused and the answers given by him should be distinctly and accurately recorded, but the accused must confine himself to relevant answers to the questions asked by the Court. Section 364 [Section 281 of new Code] does not prevent a Court from refusing to record irrelevant answers to questions put by it to the accused under Section 342 [Section 313 of new Code]. If necessary, the Court may even prevent the accused making lengthy irrelevant answers. The examination of the accused should be Page 13 of 21 CA No.42/14 (Ashok Kumar Vs. State) recorded in the language of the Court or in English. In cases in which examination is not recorded by the Magistrate or Judge himself he must record a memo, thereof in the language of the Court or in English if he is sufficiently acquainted with the latter language. The examination must be read over to the accused and made comfortable to what he declares to be the truth. The Magistrate or Judge must then certify under his own hand that the examination was taken down in his presence and hearing, and that the record contains a full and true account of what was stated."
Sec. 281 (5) Cr.PC also reads as under:
"281. Record of examination of accused -
(5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused."
The Courts are required to follow scrupulously the instructions contained in the High Court Rules & Orders as well as the provision u/S 281(5) Cr.PC.
6.0 Ld. MM has also recorded the statement of accused u/S 294 Cr.PC which is reproduced as below:
"Statement of accused Ashok Kumar S/o Sh. Vijay Pal Singh. (U/s 294 Cr.PC) Without Oath I am not disputing the genuineness of the PM Report 61/07 of deceased Om Bhasim and the MLC bearing No. 149 dated 19.11.2007 Page 14 of 21 CA No.42/14 (Ashok Kumar Vs. State) of Om Bhasim which all are included in the list of documents filed by prosecution.
RO & AC MM05/SD/Saket/21.02.2011"
Ld. MM has not even cared to put exhibit mark on the documents. Perusal of the record do not indicate a request of the prosecution for the appellant / accused to be called upon to admit or deny the genuineness of the documents relied upon in the trial against him. Ld. counsel has also not drawn any list of such documents, which were subject to admission and denial having been submitted by the prosecution for such purpose. It also does not indicate any formal order dispensing with formal proof of such document.
Sec. 294 Cr.PC reads as under:
"294. No formal proof of certain documents - (1) where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved."Page 15 of 21
CA No.42/14 (Ashok Kumar Vs. State) The bare perusal of the provision would indicate that the aim of Sec. 294 Cr.PC is to ensure expeditious trial by cutting short the procedural formalities. However, this would not mean to compromise with the principles of fair trial and the right of fair hearing to the accused.
Ld. Trial Court has not conducted the proceedings u/S 294 Cr.PC in accordance with the law as discussed earlier. The documents thus, purported to be admitted even have not been authenticated and given label of exhibition.
Thus, the proceedings u/S 294 Cr.PC have also not been conducted in accordance with the law.
6.1 Despite all this, I have examined the case on merits also. The accused has been tried for the offence u/S 279/304A IPC.
Sec. 279 IPC reads as under:
"279. Rash driving or riding on a public way - 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 imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
The bare perusal of Sec. 279 IPC would indicate that in order to attribute this section, prosecution is required to prove that the offender was driving the vehicle in rash and negligent manner inorder to endanger Page 16 of 21 CA No.42/14 (Ashok Kumar Vs. State) human life or likely to cause hurt or injury to any other person. Thus, the accused cannot be convicted for the offence u/S 279 IPC merely because he was driving the vehicle or an accident had taken place with the vehicle. It is a settled preposition that merely driving the vehicle at high speed cannot be synonym for rash and negligent driving. The speed of a vehicle is only one of the relevant factor. At a given point of time, speed at 30km may be high speed and at a given point of time speed at 60km would be low speed. The width of the road, the density of the traffic, type of vehicle, all are very important factors. In this regard, the investigating agency has also failed to discharge their responsibilities properly. The alleged accident had taken place at around 12 noon at Outer Ring Road. It is a known fact that Outer Ring Road at this time is very busy road. However, in the siteplan there is no indication as to the density of traffic at that time. The case of the prosecution is that the offending vehicle came from the side of AIIMS Hospital and took a left turn. As per siteplan Ex.PW3/A, the accident took place after some distance of taking the left turn. PW4 Sh. Sukhvinder Singh in his testimony has deposed on oath that the accused was driving the vehicle in a normal speed. The evidence of PW4 would indicate that accused took a sudden turn and thus failed to maintain the balance of the bus. Thus, if the testimony of PW4 is read alongwith the siteplan Ex.PW3/A, it would indicate that accused took a sudden left turn and suddenly the victim appeared on the road Page 17 of 21 CA No.42/14 (Ashok Kumar Vs. State) while crossing it and therefore, the accident took place. In these circumstances, there was a possibility that victim was trying to cross the road and did not see the traffic coming from her right hand side. It is also pertinent to mention here that PW4 Sh. Sukhwinder Singh was allegedly travelling in the bus. There is no evidence that how many persons were travelling in the bus. The observation of a passenger in the bus would depend upon the number of persons in the bus. The prosecution has also not clarified that where the witness was standing/sitting in the bus. If the bus was crowded and witness was standing/sitting in the middle of the bus, then it might be impossible for the witness to see the accident taking place. Ld. MM has relied upon a very vague statement that bus driver took a sudden turn and could not control the bus. There is lot of subjectivity in it. It is also worthwhile to mention here that the site plan does not show any broken window panes or the fact that the victim was thrown at a distant place which could show the speed of the bus or the impact of hitting. In Mahadeo Hari Lokre vs The State Of Maharashtra 1972 (4) SCC 758 it was inter alia held as under:
"if a pedestrian suddenly crosses the road without taking note of the approaching bus there is every possibility of his dashing against the bus without the driver becoming aware of his crossing till it is too late. If a person suddenly crosses the road, the bus driver may not be in a position to save the accident. Therefore, the bus driver cannot be held to be negligent."Page 18 of 21
CA No.42/14 (Ashok Kumar Vs. State) While analysing the rash and negligent driving, Hon'ble High Court of Gujarat in Mahadev Bhagwanji Patel vs State Of Gujarat 2001 SCC Online Gujarat 65 inter alia held as under:
"The words "rash or negligent" are termed closely allied, but they are nonetheless distinguishable. In cases of negligence, the party does not perform an act to which he is obliged; he breaks a positive duty, he does not advert to the act which it is his duty to do. In cases of rashness, the party does not act which he is bound to forbear; he breaks a negative duty. Here he adverts to the act but not to the consequences of the act he does. In rash as well as in negligent act, no thought is bestowed on the consequences. In the one, there is a knowledge of the consequence, but there is overconfidence which makes one believe its happening unlikely. In the other, the consequence is never adverted to. Negligence may be defined to be the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing something which a prudent and reasonable man would not do. Negligence is not an affirmative word; it is the absence of such skill, care and diligence as it was the duty of the person to bring to the performance of the work which he is said not to have performed. The question whether a certain act is rash or negligent cannot be answered in the abstract. It must depend upon the time, place and the nature of the road. It is the duty of all persons driving on a public way to exercise that degree of care and caution for the safety of others, which a prudent man might reasonably be expected to exercise. What is necessary for the prosecution to establish under Sec. 279 I.P.C. is that the vehicle or car was driven on a public road in a manner so rash or negligent as to endanger human life."
. AIR In Mrs. Shakila Khader etc Vs. Nausher Gama & Anr 1975 SC 1324, it has been held as follows :
"The main criterion for deciding whether the driving which leading the Page 19 of 21 CA No.42/14 (Ashok Kumar Vs. State) accident was rash and negligent is not only the speed at which the car was running but the width of the road, the density of the traffic and attempt to overtake other vehicles resulting in the car going to the wrong side of the road and causing the accident. Even if the accident took place in the twinkling of an eye, it is not difficult for an eye witness to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle travelling on that side of the road.
The investigating officer utterly failed to conduct the scientific and forensic examination. If the accused had taken sudden brakes, there could have been some scratches and tyre marks on the road but the investigating agency did not conduct any such investigation. PW4 is stated to have been travelling the said bus. Ld. defence counsel also did not cross examine PW4 properly. Though he put a question to PW1 regarding proof of PW4 travelling in the bus but failed to put this question to PW4 in the cross examination. In the criminal trial, prosecution is duty bound to prove its case beyond reasonable doubts though it is not possible to prove beyond all doubts but if there is any possibility of any doubt, then the benefit should go to the accused. With these, observations, the appeal is allowed. The impugned judgment dtd. 16.09.2014 and order on sentence dtd. 01.11.2014 are set aside.
Appellant / accused Ashok Kumar is acquitted. His bail bond / surety bond is cancelled. Surety is discharged. Original documents, if any, on record be returned to the surety against proper Page 20 of 21 CA No.42/14 (Ashok Kumar Vs. State) acknowledgment.
7.0 A copy of this order alongwith the TCR be sent back to the Ld. Trial Court.
Appeal file be consigned to RR.
Announced in the Open Court (Dinesh Kumar Sharma) Today on 11.12.2014 ASJ(South) / Saket Courts/ ND Page 21 of 21