Delhi District Court
Briefly Stated The Case Of The ... vs State Of Karnataka on 30 April, 2014
IN THE COURT OF SH. PAWAN SINGH RAJAWAT
METROPOLITAN MAGISTRATE 07, CENTRAL, ROOM NO. 137,
TIS HAZARI COURTS, DELHI.
STATE
VERSUS
SHIV KUMAR RANA
FIR No. 381/99
P.S.: KOTWALI
U/S: 279/304A IPC
1. Serial No. of the case : 02401R0028611999
2. Date of commission of offence : 05.06.1999
3. Name of the Complainant : HC Om Prakash,
No. 24/N, PS Kotwali, Delhi.
4. Name of the accused, and
his parentage and residence : Shiv Kumar Rana,
S/o Maan Singh Rana,
R/o Village Jatikalan, Sonipat,
Haryana.
5. Date when judgment : 01.04.2014
was reserved
6. Date when Judgment : 30.04.2014
was pronounced
7. Offence Complained of : Section 279/304A IPC
or proved
8. Plea of accused : Pleaded not guilty.
9. Final Judgment : Acquitted for the offence U/s
279/304A IPC
State Vs. Shiv Kumar Rana
FIR No. 381/99
PS- Kotwali page 1/11
Brief Statement of reasons for the decision of the case
1. Briefly stated the case of the prosecution is that on 05.06.1999 at
about 11.00 pm on ring road, near Shalimar picket, PS Kotwali, accused
was driving truck bearing registration No. HR 10GA 0609 in fast speed and
rash and negligent manner and hit against the deceased due to which he
died. Accordingly, FIR No. 381/99, PS Kotwali U/s 279/304A IPC was
registered. The challan was filed on 16.11.1999.
2. On appearance of the accused, a notice under Section 251 Cr.P.C was
served upon him to which he pleaded not guilty and claimed trial for
offence under Section 279/304A IPC. Thereafter, the matter was put up
for prosecution evidence.
3. Prosecution has examined ten witnesses namely PW1 HC Om Prakash,
PW2 HC Ashwani Kumar, PW3 Ct Pradum, PW4 Jagdish Prasad, PW5 Dr.
Dinesh Kumar, PW6 Ct Pratap Singh, PW7 Sh. Narender Kumar, Ld ADJ,
PW8 T.U Siddiqui, PW9 Dr. Rakesh Kumar Gupta and PW10 Inspector
Shankar Lal to prove the case of the prosecution. The evidence of each of
PWs is very relevant and the same is analyzed and discussed later on at
appropriate places.
4. After the Prosecution evidence was closed the statement of accused
was recorded and all the incriminating evidence were put to him wherein
he stated that no accident occurred from his truck and he was driving
vehicle in normal speed as the same was loaded and his truck was coming
from Rajghat side and same was impounded after falsely implicating him
in the present case. He further stated that he did not admit anywhere that
he was driving the offending vehicle and also do not remember whether he
was directed to undergo TIP and have nothing to state about the
documents being an illiterate person. He further stated that he wish to led
State Vs. Shiv Kumar Rana
FIR No. 381/99
PS- Kotwali page 2/11
evidence in his defence. Thereafter, matter was adjourned for defence
evidence. But no defence evidence was led by the accused despite getting
opportunities. Thereafter, final arguments heard.
5. Ld APP for the State addressed useful and pertinent arguments. Ld.
APP for the state has argued that the offence against the accused is proved
beyond reasonable doubts the eye witness i.e PW1 who is also the
complainant has correctly identified the accused as the person who was
driving the offending vehicle and hit the deceased. He prays for conviction
of the accused.
6. On the other hand, Ld counsel for the accused argued that no
accident caused by accused and he was falsely implicated and was driving
the truck at slow speed. He prays for the acquittal.
7. PROSECUTION EVIDENCE:
7.1 PW1 is the complainant. He stated that on 05.06.1999 he was on
duty at Salim Garh Police Picket from 9pm to 9am and at about 11pm he
saw truck No. HR 10GA 0609 coming from Shantivan side driven rashly
and negligently in very fast speed and hit one person who was crossing the
road near picket and ran away. He further stated that accident happened
due to negligence of accused whom he correctly identified and stated that
he gave message to police station and IO SI Shankar Lal came to the spot
and recorded his statement vide Ex. PW1/A. He further stated that accused
was arrested on 08.06.1999 in his presence. During cross examination he
stated that accident occurred on 05.06.1999 and his departure entry was
recorded by the Duty Officer. He stated that IO prepared site plan at his
instance. He also stated that the picket was at a distance of 2022 feet
from the spot and deceased could see the truck from a long distance. He
further stated that deceased was crossing the road slowly but failed to
State Vs. Shiv Kumar Rana
FIR No. 381/99
PS- Kotwali page 3/11
stated the exact time taken by deceased in crossing the road. He also
stated that deceased was sometime stopping and sometime moving on the
road. He failed to stated the exact speed of the truck but stated that it was
in high speed. He denied the suggestion that he had not seen the truck and
was not present near the spot. He admitted that there was no zebra
crossing or bus stand near the police picket. He also stated that he saw the
registration number of the truck for the first time when it was standing at
the spot. He denied the suggestion that deceased suddenly came out from
the bushes and hit by another vehicle and accused has been falsely
implicated. He further denied the suggestion that accused driver alongwith
truck was not present at the spot at the time of accident and was falsely
implicated later on.
7.2 PW2 proved the registration of FIR vide Ex.PW2/A.
7.3 PW4 is another eye witness of the accident. He stated that on
05.06.1999 he was on duty between 10pm to 6am but failed to recollect
the facts as the case being very old. He further deposed after refreshing his
memory on the request of Ld APP and stated that at about 11pm while he
was on duty alongwith Ct Surender at Shantivan, one truck coming from
Red Fort side in very high speed hit one pedestrian who was crossing the
road. He further stated that he cannot identify the driver of the truck as he
ran away from the spot. This witness was cross examined by Ld APP for
the State. During cross examination he supported the version of the
prosecution and stated that on 05.06.1999 his duty hours was from 9pm to
5 am and at that time truck No. HR 10GA 0609 being driven in rash and
negligent manner and in high speed hit one pedestrian. He also identified
the accused as driver of the truck. During cross examination by defence
counsel, he failed to recollect the date, month and year of accident and
State Vs. Shiv Kumar Rana
FIR No. 381/99
PS- Kotwali page 4/11
stated that IO reached the spot at about 1.30am and prepared documents.
He further failed to state whether he signed documents prepared by the IO
or not. He also stated that IO prepared site plan on his own. He denied the
suggestion that he was not present at the spot on that day. He also
admitted that at the time of crossing road, deceased was looking towards
the vehicles moving on the road and was wearing neat and clean clothes.
He failed to tell the speed of the truck at the time of accident but admitted
that spot is lonely place and neither there is a bus stop nor zebra crossing.
He denied the suggestion that deceased suddenly came out from the
bushes from the divider and hit by another vehicle and accused has been
falsely implicated. He further denied the suggestion that accused driver
alongwith truck was not present at the spot at the time of accident and
was falsely implicated lateron.
7.4 PW5 conducted the postmortem of the deceased and after
examination, opined that death caused due to hemorrhage and shock
consequence to the injury described in the report vide Ex. PW5/A. This
witness was not cross examined.
7.5 PW6 stated that on receipt of DD No. 17A he alongwith SI Shankar
Lal reached the spot from where deceased was already shifted and
thereafter, they went to hospital and IO collected the MLC.
7.7 PW7 is the Ld ADJ who conducted the TIP of accused. He stated that
on 26.07.1999 on request of IO, he conducted the TIP of accused wherein
accused refused to participate in the TIP vide Ex. PW7/B.
7.8 PW8 is the mechanical inspector who conducted the mechanical
inspection of offending vehicle. He proved his report vide Ex. PW8/A.
7.9 PW10 is the IO of the case and stated that on 05.06.1999 on receipt
of DD No.17A regarding accident at Salimgarh picket, he alongwith Ct
State Vs. Shiv Kumar Rana
FIR No. 381/99
PS- Kotwali page 5/11
Pratap reached the spot and met HC Om Prakash and also found one truck
bearing No. HR 10GA 0609 in accidental condition and injured was
already shifted to hospital. He further stated that he obtained the MLC of
the injured who was declared brought dead and thereafter recorded the
statement of HC Om Prakash and prepared tehrir and himself went to
police station and got the FIR registered. He proved the seizure of the
offending vehicle, preparation of site plan and got conducted the
mechanical inspection of the offending vehicle. He further stated that
notice U/s 133 MV Act was served upon the registered owner of the
offending vehicle vide Ex. PW10/A and he also seized the insurance, RC
and permit of the offending vehicle as well as driving license of the
accused vide Ex.PW10/B and Ex. PW10/C. During cross examination by Ld
defence counsel, he stated that he received information regarding the
accident at about 11.30pm and reached the spot at about 12 midnight on
his two wheeler. He admitted that where the allged accident took place, it
was a busy road but not in the night at about 11pm. He further stated that
he requested 23 persons to join the investigation but all refused. He failed
to state the width of the road but denied the suggestion that the road is
4050 feet wide at the spot. He further stated that offending vehicle was
standing on the extreme left side of the road and there was no damage
mark on the truck. He denied the suggestion that there was certain
plantation on the divider available on the spot of incident. He denied the
suggestion that deceased was a smack addict who fell down on the road
and was crushed by some unknown vehicle and the accused was falsely
implicated in the present case. He also denied the suggestion that false
chargesheet is filed against the accused and he is deposing falsely on the
behest of HC Om Prakash and other two Homeguard Constables.
State Vs. Shiv Kumar Rana
FIR No. 381/99
PS- Kotwali page 6/11
8. Both the eyewitnesses i.e. PW 1 & PW 4 had stated that the
offending vehicle was in very high speed but neither of them stated either
about the speed or what was the rashness and negligence they observed in
driving of the accused. Both the witnesses on being specifically asking
failed to state the exact speed of the offending vehicle. Moreover, the
prosecution is failed to bring on record the maximum or permissible speed
limit at the time of spot of accident.
9. The factum of the accident itself does not show the rashness and
negligence on the part of the driver unless specific observation about
the act of rashness or negligence is made by the eyewitness. My
opinion is foretified by the judgment of "Abdul Subhan Vs. State
(NCT of Delhi) AIR 2004 [3] JCC 1797 passed by the Hon'ble
High Court of Delhi and judgment of "State of Karnataka Vs.
Satish" 1998 SCC (CRI) 1508 of Hon'ble Supreme Court. In the
judgment of "State of Karnataka Vs. Satish" (supra) in para 3 it was
held that "no specific finding has been recorded either by the trial
court or by the first appellate court to the effect that the respondent
was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "highspeed", both the courts pressed in aid the doctrine of res ipsa loquitor to hold the respondent guilty. It is further observed that merely because the truck was being driven at a "highspeed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "highspeed". "Highspeed" is a relative term. It was for the prosecution to bring on record material to establish as to what is meant by "highspeed"in the facts and State Vs. Shiv Kumar Rana FIR No. 381/99 PS- Kotwali page 7/11 circumstances of the case".
10.In the judgment of "Abdul Suhan Vs. State" (supra) it is further observed that a mere allegation of high speed would not tantamount to rashness or negligence and held that apart from the allegation that the truck was being driven at a very high speed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent and therefore, the petitioner cannot be convicted on the sole testimony of PW3 which itself suffers from various ambiguities.
8.1 In "Badri Prasad" (supra) it was observed that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hut or injury to any person. The rashness and negligence which needs to be established is something more than a mere error of judgment and there is also a distinction between rashness and negligence in that, rashness conveys the idea of doing a reckless act without considering any of its consequences whereas negligence connotes want of proper care.
8.2 Even though as per testimony of PW5 the deceased died due to injury caused due to hamerrage and shock but that alone are not sufficient to convict the accused person as prosecution has failed to prove the negligence of Section 279 IPC.
9. The offence U/s 304 A IPC is made out if death is caused of any person by doing rash or negligent act not amounting to culpable homicide. In Rathnashalvan Vs. State of Karnataka, (SC) 2007 AIR (SC) 1064, the Hon'ble Supreme Court has held that;
"Section 304A applies to cases where there is no intention to cause death and no knowledge that the act State Vs. Shiv Kumar Rana FIR No. 381/99 PS- Kotwali page 8/11 done in all probability will cause death. The provision is directed at offences outside the range of Section 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. As noted above, "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it State Vs. Shiv Kumar Rana FIR No. 381/99 PS- Kotwali page 9/11 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."
10. Negligence is a tort as well as a crime used for the purpose of fastening the defendant with the liability under the Civil law and at times under the criminal law. To fasten the liability in criminal law, the degree of negligence has to be higher than that of negligence to fasten for damages in civil law. The essential ingredients of mens rea cannot be excluded from the consideration when the charge in a criminal Court consist of criminal negligence. In order to hold the existence of criminal rashlessness or or criminal negligence, it shall have to be found out that the rashlessness was of such a degree as to amount to having a hazard, having that the hazard was of such a degree that the injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequence. An accident may occur due to many factors and not only by negligent driving. An accident may occur due to error of judgment in driving or even due to some factor not necessarily being negligence of the driver. But in order to bring home the guilt in cases of 304 A IPC, the prosecution has to strictly prove and discharge the burden upon it. To show that the accident State Vs. Shiv Kumar Rana FIR No. 381/99 PS- Kotwali page 10/11 and the consequent death of the deceased took place due to negligent act of the accused. That such act may cause the death of such a person.
11. On the basis of the testimony of the witnesses and evidence on record, this court is of the opinion that the prosecution has failed in proving the allegations against the accused beyond reasonable doubt. Accordingly, the accused Shiv Kumar Rana is acquitted for the offence under Section 279/304 A of Indian Penal Code, 1860. Bail Bonds stands cancelled. Surety is discharged. Documents, if any, be cancelled. Endorsement, if any, be cancelled.
ANNOUNCED IN THE OPEN (PAWAN SINGH RAJAWAT) COURT ON 30.04.2014 METROPOLITAN MAGISTRATE07 CENTRAL/TIS HAZARI COURTS DELHI. State Vs. Shiv Kumar Rana FIR No. 381/99 PS- Kotwali page 11/11