Delhi District Court
State vs Gurmel Singh on 14 May, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
State Vs. Gurmel Singh FIR NO.:166/2006, U/s 279/304A IPC PS : Seelampur A. CIS No. of the Case : 461353/2015 B. FIR No. : 166/2006 C. Date of Commission of Offence : 13.03.2006 D. Name of the complainant : Nasruddin S/o Nasir Khan, R/o B-312, Buland Masjid, Shastri Park, Delhi E. Name of the Accused, his : Gurmel Singh S/o Babbra Parentage & Addresses Ram, R/o RZC-68, Nihal Vihar, Paschimpuri, Nangloi, Delhi F. Offence complained of : U/s 279/304A IPC G. Representation on behalf of : Ms. Amandeep Kaur, Ld. APP State H. Plea of the Accused : Pleaded not guilty and claimed trial.
I. Order reserved on : 22.03.2024 J. Date of Order : 14.05.2024 K. Final Order : Acquitted
Brief Statement of Reasons for Decision of the Case
1. Briefly stated the case of the prosecution is that on receiving DD No.14A dated 13.03.2006, Ct. Muninder and ASI FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.1 of 20 Iftikar Ahmed went to the spot i.e. pushta road, near red light Shastri Park and found Tata Sumo bearing no.DL3CJ-9463 with its glasses broken. Ct. Padam Singh was present there alongwith the accused Gurmel Singh (name later disclosed). On inquiry it was found that injured was taken to GTB hospital. ASI Iftikar left Ct. Muninder and Ct. Padam at the spot and went to GTB hospital and collected the MLC of injured Amrin who was brought dead. ASI Iftikar Ahmed met the father of the deceased in the hospital who disclosed himself to be an eye witness. He recorded his statement and on the basis of which present FIR was registered. The accused was charge-sheeted for offence punishable under Section 279/304A IPC.
2. FIR was registered and has been investigated by the officials of Police Station New Usmanpur and IO/ASI Iftikar Ahmed filed the charge sheet against the accused.
3. Accused appeared before the Court and copy of chargesheet along with other documents under Section 207 Cr.P.C. was supplied to him.
4. Notice was framed vide order dated 11.05.2010 for the offence punishable Under Section 279/304A IPC against accused by the learned Predecessor of this Court, to which, the accused pleaded not guilty and claimed trial.
5. Thereafter, matter was listed for prosecution evidence. The Prosecution has examined 06 witnesses in support of its case. In nutshell, the testimony of the prosecution witnesses are as follows :-
FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.2 of 20
(i) PW1 Nasruddin is the complainant in the present matter and has deposed that on 13.03.2006 at about 03:45 pm he was bringing back her daughter Amrin from her school situated at zero pushta road and was going towards his house. When he had just cross the red light of Shastri Park and was on the road going towards Buland Masjid, one Tata Sumo bearing no.DL3CJ-9463 came from behind and struck against her daughter due to which she fell down on the road and sustained injuries on her head.
Blood ooze out from her head. Tata Sumo was stopped and accused was handed over to the police. He took his daughter to GTB hospital where she was declared brought dead. He made the complaint regarding the same to the police. He has deposed that the accident took place due to rash and negligent driving of the accused. Postmortem of the dead body of her daughter was conducted at mortuary GTB hospital and the dead body was handed over to him. The witness correctly identified the offending vehicle through photographs Ex. P1 to Ex. P3 and accused in Court. In his cross-examination by Ld. counsel for accused he could not tell the exact distance between his house and the school of her daughter. He has stated that the offending vehicle had jumped the red light. He could not remember whether the police official took his signature on the site plan. He denied the suggestion that there was green light for the offending vehicle at that time. He also denied the suggestion that the accident took place due to rash and negligent driving of the accused. He also denied the suggestion that the accused was not driving the offending vehicle and that he has been falsely implicated in the present case.
FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.3 of 20
(ii) PW2 Nasir Khan is the grand father of deceased Amrin. He identified the dead body of his grand daughter at mortuary GTB hospital on 14.03.2006. After postmortem, the dead body was handed over to his son. In his cross-examination he has stated that he does not remember the exact date when he received information regarding the death of his grand daughter.
(iii) PW3 ASI Muninder Kumar on 13.03.2006 was present at PS Seelampur on reserve duty. DD no.14A regarding accident at Shastri Park red light was handed over to him by DO with directions to hand over the same to ASI Iftikar who was present at lal bati chowk Shastri Park. He went there and met IO/SI Iftikar Ahmed and handed over the DD entry for further action. He alongwith IO reached the spot i.e. near lal bati chowk Shastri Park and found one Tata Sumo blue colour bearing registration no.DL3CJ-9463 in accidental condition. Glasses of the said vehicle were also broken. Ct. Padam Singh was present there who had apprehended the driver of the offending vehicle. The witness has correctly identified the accused Gurmel in Court. On inquiry it came to light that the injured girl was taken to GTB hospital. IO directed him and Ct. Padam to remain present at the spot and he went to GTB hospital. IO came back at the spot where he handed over the rukka / tehrir to him with the direction to get the case registered at PS. He went to the PS, got the case registered at the DO and came back to the spot alongwith copy of FIR and original rukka and handed over the same to IO for further action. IO arrested accused Gurmel, conducted his personal search. The offending vehicle was taken into police custody and was seized. Accused produced slip through which his DL and documents of the vehicle were already deposited in FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.4 of 20 some other case in Haryana. The slip was taken into police custody. In his cross-examination by Ld. counsel for accused he has stated that he does not remember at what time DD No.14A was handed over to him. Distance between the said spot and the PS was about 2-3 kms. It took about half an hour to reached there. The spot generally have heavy traffic. He conceded that the accident had not occurred in his presence. He also conceded that the glasses of said vehicle have already been broken by the public persons. He denied the suggestion that he had not joined the investigation at any point of time.
(iv) PW4 ASI Padam Singh on 13.03.2006 he was posted at patrolling duty, at about 03:45 pm he reached pushta road Shastri Park near led light where he saw one person alongwith one girl child going towards Buland Masjid. One vehicle Tata Sumo bearing no.DL3CJ-9463, blue colour hit the girl Amrin from back side and the offending vehicle dragged the deceased for about 8-10 steps and thereafter stopped. He alongwith complainant apprehended the accused at the spot. The name of the accused was revealed as Gurmel Singh. Public persons broke the glasses of the offending vehicle. Gurmel Singh remained in his custody. Complainant took his child to GTB hospital. IO/ASI Istikar Ahmed and Ct. Muninder came at the spot. He informed the incident to the IO. Ct. Muninder remained at the spot and he alongwith the IO left for the hospital. After some time they came back to the spot, IO handed over the rukka to Ct. Muninder who went to the PS and got the FIR registered and came back to the spot alongwith copy of FIR and rukka. IO seized the offending vehicle. IO seized RC and DL of accused. IO arrested the accused. He identified the offending vehicle through FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.5 of 20 photographs. He has also stated that the accused was driving the vehicle rashly and negligently at a speed of about 40-50 kmph. Accused did not apply brake due to which the accident took place. His cross-examination was deferred. However, his presence could not be secured even after service through DCP and accordingly, he was dropped from the list of witnesses.
(v) PW5 Retd. SI Iftikar Ahmed is the IO in the present matter. On 13.06.2006 after receipt of DD No.14A he alongwith Ct. Muninder proceeded to red light Shastri Park and on reaching there they met Ct. Padam Singh. Ct. Padam Singh handed over the custody of accused to him. He interrogated the accused who disclosed his name as Gurmel Singh. Ct. Padam informed him that injured was taken to GTB hospital by her father. He left Ct. Muninder at the spot and proceeded to GTB hospital. He obtained the MLC of injured Amrin and the doctor opined her to be brought dead. He met the father of deceased who narrated the whole incident to him and informed that he was the eye witness of the accident. He recorded the statement of Nasiruddin. He returned back to the spot, prepared rukka and handed over the same to Ct. Muninder for registration of FIR. Ct. Muninder went to the PS brought the FIR registered and came back at the spot after registration of FIR and handed over the copy of FIR and original rukka to him. He seized the offending vehicle and the relevant documents of the offending vehicle. After some time father of deceased came to the spot and he prepared site plan at his instance. He got the photographs of offending vehicle done through government photographer. He interrogated the accused regarding the accident, arrested him and conducted his personal search. He released the accused on police bail. He got the FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.6 of 20 mechanical inspection of the vehicle done. He got the postmortem of the body done and obtained PM report. He completed the chargesheet and filed it before the Court. In his cross-examination he has stated that the intimation regarding the accident was received at 10:00 pm. He reached the spot at about 04:30 pm. When he reached the spot the glasses of vehicle were broken. He did not record the statement of any public witness. The offending vehicle was parked at 03 mtr away from the traffic signal. He had prepared the site plan at the spot. He conceded that no witness either public or police personnel had signed the site plan. He denied the suggestion that site plan was prepared while sitting at the PS. He conceded that place of accident is a busy place and there is generally a rush of traffic. He went to GTB hospital after 15 minutes of reaching there and returned to the spot at about 05:00 pm. He denied the suggestion that he had not conducted the investigation in a fair manner.
(vi) PW6 ASI Bijender Kumar was the photographer on 13.06.2006. On request of IO he went to the place of accident at Shastri Park where he clicked the photographs of the car at the place of incident. He correctly identified the photographs clicked by him. In his cross-examination he has conceded that he is not the eye witness of the accident. He also conceded that photographs does not bear the date and time of its capturing.
6. PE was closed on 06.10.2023 and on 08.11.2023 statement of accused under Section 313 Cr.P.C. read with 281 Cr.P.C. was recorded. Accused did not wish to lead DE and the matter was fixed for Final Arguments.
FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.7 of 20
7. Final arguments were advanced on behalf of accused. Heard. Case record perused meticulously.
8. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
9. In Ras Bihari Singh v. State, 2017 SCC OnLine Del 12290 , Hon'ble Delhi High Court has observed that:
"7. At the outset, before delving into merits of the submissions made by learned counsel for the parties, I find deem it appropriate to discuss the relevant Section involved in the instant case. The petitioner has been convicted and sentenced for the offences punishable under Section 279 and 304A IPC.
8. Section 279 IPC deals with rash and negligent driving, which reads as under:
S. 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"
9. To constitute an offence under Section 279 IPC, it must be shown that the person was driving the vehicle in a rash or negligent manner. Criminal negligence or criminal rashness is an important element of the offence under Section 279 IPC.
10. Section 304A reads as under:
"304A. Causing death by negligence.-- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
11. In a road accident case, to convict a person for the offence punishable under Section 304-A IPC, the prosecution is required to bring on record the basic requirement of the said Section i.e. "Rash or FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.8 of 20 Negligent Act" with following conditions:
1) There must be death of the person in question;
2) that the accused must have caused such death; and
3) that such act of the accused was rash or negligent and that it did not amount to culpable homicide."
10. In Rathnashalvan vs. State of Karnataka : AIR 2007 SC 1064 , the Apex Court observed that:
"5. 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 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.
6. 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 FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.9 of 20 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.
13. Section 304A which deals with unintentional death caused by doing any rash or negligent act of the offender. The applicability of this Section is limited to rash or negligent acts which cause death but fall short of culpable homicide amounting to murder or culpable homicide not amounting to murder. To bring an offence within the ambit of Section 304A, the prosecution is required to bring on record that the act was done by an accused and the death was caused due to rash and negligent act.
11. The essential ingredients which the Prosecution is required to prove to establish the guilt of accused beyond reasonable doubt for offence punishable under Section 279 IPC are as under :
"a) The accused was driving the offending vehicle;
b) On a public way;
c) In a manner so rash and negligent so as to endanger human life, or to be likely to cause hurt/injury to any other person."
12. Further, for offence punishable under Section 304A IPC, the Prosecution has to establish beyond reasonable doubt that by aforesaid rash and negligent driving, the accused caused death of the victim not amounting to culpable homicide.
13. In other words, to seek conviction of the accused under the charged Sections, cogent evidence has to be led to establish "rashness"/"negligence" on the part of the accused.
"A rash act is primarily and over-hasty act and is thus opposed to a deliberate act, but it also FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.10 of 20 includes an act which, though it may be said to be deliberate, is yet done without due deliberation and caution. In rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences." (Page no. 321 Ratan Lal & Dhiraj Lal, The Indian Penal Code 28th Edition Reprint 2002). Further, a negligent act "involves blameworthy heedlessness on the part of the accused which a normal prudent man exercising reasonable care and caution ought to avoid". (Page no. 322 Ratan Lal & Dhiraj Lal, The Indian Penal Code 28th Edition Reprint 2002). Either of these ingredients have to be proved by affirmative evidence and cannot be presumed res ipsa loquitur. Reliance is placed upon State of Karnataka Vs. Satish (1998) 8SCC 493"
14. The Prosecution also has to establish beyond reasonable doubt that the direct and proximate cause of death of the victim was the rash and negligent driving by the accused.
15. The identity of the accused as the driver of the offending vehicle also has to be cogently established beyond reasonable doubts.
16. Thus, now this Court proceeds to appreciate the evidence brought on record by the Prosecution.
17. It is the case of the prosecution that accused Gurmel Singh was found driving vehicle no.DL3CJ-9463 in rash and negligent manner and hit against Amrin who succumbed to injuries. The prosecution has primarily relied on the testimony of PW1. Complainant while deposing as PW1 has stated that on 13.03.2006 when he bringing back his daughter Amrin from school situated at zero pushta road and was going towards his house at about 03:45 pm one Tata Sumo bearing no.DL3CJ-9463 FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.11 of 20 came from behind and hit her daughter. She fell on the road and sustained injury on her head. Blood oozed out from her head. The Tata Sumo was being driven by Gurmel. Tata Sumo was stopped and accused was handed over to police. He further deposed that the accident took place due to rash and negligent driving of the accused.
18. Apart from the complainant PW4 ASI Padam Singh is also stated to be an eye witness to the incident. He has deposed that on 13.03.2006 while he was on patrolling duty at about 03:45 pm he reached pushta road Shastri Park near red light and saw one person alongwith one girl child going towards Buland Masjid. One vehicle Tata Sumo bearing no.DL3CJ-9463 blue colour hit the girl Amrin from back side and dragged her for about 8-10 steps and thereafter, the offending vehicle stopped. He alongwith complainant Nasruddin apprehended the accused at the spot who revealed his name as Gurmel Singh. Public persons broke the glasses of the offending vechile. Gurmel Singh remained in his custody. Complainant Nasruddin took his child to GTB hospital. IO/ASI Iftiakar Ahmed and Ct. Muninder came at the spot. He informed about the accident to the IO. Ct. Muninder remained at the spot and he alongwith the IO went to the hospital. The cross- examination of the said witness was deferred. Summons were issued to him on 07.05.2019, 30.11.2019, 22.03.2022, 12.09.2022, 06.12.2022. He did not appear despite service. Vide order dated 20.01.2023, BWs in the sum of ₹10,000/- issued against him. On the next date of hearing he sought exemption and summons were issued against him on 20.03.2023. On the next date he again absent despite service and BWs were again FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.12 of 20 issued against him on 24.04.2023. On the next day he did not appear despite execution of BWs and NBWs were issued against him on 10.05.2023. Summons were again issued against him on 01.08.2023. He absented despite service. Summons were again issued through DCP. He did not appear despite service and accordingly, vide order dated 06.10.2023 he was dropped from the list of witnesses.
19. Firstly, there are apparent inconsistencies between the testimonies of two eye witnesses complainant and PW4/ASI Padam Singh. The complainant in his testimony has not mentioned the presence of PW4 at the spot. As per the testimony of PW4 the victim after the impact of the accident was dragged for 8-10 steps before the offending vehicle stopped. This fact has not been mentioned by the complainant in his deposition. Complainant has made a vague statement that the accident was caused due to rash and negligent driving of the accused.
20. The main object of cross-examination of a witness is to bring out falsity and to find out the truth. It helps the Court to access the relative merits as projected by the prosecution and the accused. Cross-examination is not an empty format rather the defence is required to put its own case in the nature of suggestions. In a case where the witness could not be cross examined, either for the reasons that his presence could not be secured or has died, the weight of the probative value of his evidence would vary depending upon the facts and circumstances of each case and cannot be disregarded in totality. The case of the prosecution must stand on its own leg and cannot derive any FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.13 of 20 strength on the weakness of the defence.
21. It is imperative to prove for the prosecution for establishing the guilt of the accused for offence punishable under section 279 IPC that vehicle was being driven in a rash and negligent manner so as to endanger human life. The identity of the offending vehicle and the accused driving the offending vehicle at the time of accident has to be established.
22. Before proceedings further it becomes pertinent to mention the Supreme Court judgment of Mohammed Aynuddin Vs. State of Andhra Pradesh, (2000) 7 SCC 72 , wherein Supreme Court has observed that:
"5. A passenger might fall down from a moving vehicle due to one of the following causes: It could be accidental; it could be due to the negligence of the passenger himself; it could be due to the negligent taking off of the bus by the driver. However, to fasten the liability with the driver for negligent driving in such a situation there should be the evidence that he moved the bus suddenly before the passenger could get into the vehicle or that the driver moved the vehicle even before getting any signal from the rear side.
6. A driver who moves the bus forward can be expected to keep his eyes ahead and possibly on the sides also. A driver can take the reverse motion when that driver assures himself that the vehicle can safely be taken backward.
7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus.
8. The principle of res ipsa loquitor is only a rule FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.14 of 20 of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence, the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer.
9. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
23. In the present case, the prosecution has heavily relied on the testimony of their eye witness i.e. complainant/PW1. PW1 has not stated anything regarding the manner of accident / the speed of the offending vehicle. PW1 in his cross-examination has stated that there was a red light for the offending vehicle and the offending vehicle had jumped the red light. He denied the suggestion that there was a green light for the offending vehicle at the time.
24. At this juncture, the perusal of the site plan Ex. PW5/B becomes important. As per the complainant he had pointed out the place of incident to the police officials. IO/PW5 has deposed that the site plan Ex. PW5/B was prepared at the spot at the instance of the complainant. In his cross-examination he has conceded that no witness either public or police personnel has signed the site plan. Perusal of site plan shows that no other FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.15 of 20 person other than IO/ASI Iftikar Ahmed had signed the site plan. It is the case of the prosecution that the complainant alongwith his daughter was crossing red light Shastri Park and was going towards Buland Masjid. Firstly, the site plan is not clear as to which road leads to Buland Masjid, secondly, the place of accident shown as point A does not show the directions of the moving traffic at the place of accident. No traffic light has been shown in the site plan. It cannot be ascertained from the site plan the direction of movement of the complainant alongwith his daughter and that of the offending vehicle.
25. As per the prosecution PW4/ASI Padam Singh was present at the spot and was also the eye witness to the incident. In his testimony he has stated that public persons broke the glasses of the offending vehicle. Though, the accused had admitted the mechanical inspection report under section 294 Cr. PC, its relevance to the case of the prosecution is minimal with the fact that the damage on the body on the offending vehicle was not only due to the impact of accident rather caused by the public persons also. No statement of public persons have been taken by the IO.
26. Apart from that other inconsistencies in the deposition of various PWs are apparent. As per PW3/ASI Muninder Kumar on the directions of IO he and Ct. Padam remained at the spot and IO went to GTB hospital. Contrary to this, PW4/ASI Padam Singh has stated that only Ct. Muninder remained at the spot and he alongwith IO went to GTB hospital. IO in his deposition has stated that he alone went to the GTB hospital. PW3/ASI FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.16 of 20 Muninder has deposed that the accused on being asked to produce his DL and documents of the DL, produced a slip wherein it was stated that his original documents i.e. DL, documents of the vehicle were deposited in another case in Haryana. The said slip was seized vide seizure memo Ex. PW3/D bearing his signature at point A. Contrary to this, PW4/ASI Padam Singh has stated that IO seized RC and DL of the accused vide seizure memo Ex.PW3/D bearing his signature at point B. IO/PW5 has stated that accused produced all the relevant documents of the offending vehicle which he seized vide seizure memo Ex. PW3/D bearing his signature at point C. Perusal of Ex.PW3/D states that the accused produced a slip on being asked to produce documents of the offending vehicle. The said slip is already on recorded alongwith DL of accused.
27. Even after a careful scrutiny of the photographs / mechanical inspection report the manner of accident could not be ascertained.
28. The evidence brought on record by the prosecution, is not sufficient to link the accused to the commission of the crime. The prosecution has failed to prove that in the given circumstances it was the rashness or the negligence of the driver which caused the death of Amrin not amounting to culpable homicide. As discussed above, for rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences and a negligent act involves blameworthy heedlessness on the part of the accused which a normal prudent man exercising reasonable care and caution ought to avoid.
FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.17 of 20 Either of these have to be proved by positive evidence. The proof of the prosecution cannot be discharged by presumptions.
29. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar , (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human probabilities."
30. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 :
1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.18 of 20 the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
31. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says:
'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
32. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.19 of 20 the guilt of the accused, then there is no room for a reasonable doubt."
33. The evidence brought on record by the prosecution, is not sufficient to link the accused to the commission of the crime. As discussed above, for rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences and a negligent act involves blameworthy heedlessness on the part of the accused which a normal prudent man exercising reasonable care and caution ought to avoid. Either of these have to be proved by positive evidence.
34. Thus, in view of the above discussion, the prosecution has not been able to establish beyond reasonable doubt that the direct and proximate cause of death of the victim was the rash and negligent driving of the accused, therefore, accused Gurmel Singh is found not guilty in the present case and resultantly, he stands acquitted in the present case.
35. Accused is directed furnish bail bond and surety bond in the sum of ₹10,000/- each u/s 437A Cr.P.C and directed to be present before the Ld. Appellate Court as and when directed.
Digitally signed
by VIPUL
VIPUL SANDWAR
SANDWAR Date: 2024.05.14
16:08:56 +0530
Announced in the open (VIPUL SANDWAR)
Court on 14 th May, 2024 MM-02/NE/KKD COURTS
FIR No.166/06 State vs. Gurmel Singh PS Seelampur Page No.20 of 20