Delhi District Court
State vs . Kabir Arif Khan on 31 October, 2019
IN THE COURT OF MS VASUNDHARA AZAD, MM03, SE,
SAKET COURTS, NEW DELHI
State vs. Kabir Arif Khan
FIR No.11/2013
Police Station : H. N. Din
Under Section : 279/427 IPC&3 Prevention of Damage to the public Property Act
Date of institution : 04.04.2013
Date of pronouncement : 31.10.2019
JUDGEMENT
a) Cr. cases number of the case 86033/2016
b) Date of commission of offence 12.01.2013
c) Name of the complainant Ct. Veer Pal
Kabir Arif Khan
Name, parentage and address S/o Sh.Arif Mohd. Khan
d) of the accused R/o H.No. B10, May Fair Garden, Hauz Khas, New Delhi.
Section 279/427 IPC & 3 Prevention of
e) Offence complained of Damage to the public Property Act
f) Plea of the accused Pleaded not guilty Convicted of offence u/s 279 IPC and acquitted of offences u/s 427 IPC/Section 3
g) Final order Prevention of Damage to the Public Property At 1984
h) Date of final order 31.10.2019 BRIEF STATEMENT OF FACTS AND REASONS FOR THE DECISION
1. Briefly stated, the case of the prosecution is that on 12.01.2013, at about 02.00AM at H.No.17, in front of Link road, Kblock, Jangpura within the FIR NO.11/2013, State Vs. Kabir Arif Khan PSH.N. Din Page no.1/9 jurisdiction of PS H.N. Din, accused was driving a car bearing no.DL 3CBA5202 Honda City in a manner so rash and negligent so as to endanger human life and personal safety of others and caused mischief by striking against an electric pole as a result of which it broke and boundary wall of a house was destroyed and thereby committed offences u/s 279/427 IPC and 3 of the Prevention of Damage to the Public Property Act 1984.
ACCUSATION AGAINST THE ACCUSED
2. Vide order dated 06.04.2016 passed by the learned predecessor of this Court, charges of accusation for the offences punishable under Section 279/427 IPC were framed against the accused to which he pleaded not guilty and claimed trial. Further, vide order dated 20.9.2019 an additional charge u/s 3 of the Prevention of Damage to the Public Property Act 1984 was also framed against the accused to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
3. The prosecution, in order to prove its case against the accused, in all examined 7 witnesses.
PW1 Ct. Veerpal has deposed that on 11.01.2013, when he was on picket duty along with HC Jai Prakash, a vehicle bearing no.DL3CBA 5202 which was being driven at a very high speed in a rash and negligent manner collided with an electric pole as well as a wall as a result of which the pole broke. PW1 has proved his statement vide Ex PW1/A, seizure memo of the vehicle as ExPW1/B, seizure memo of FIR NO.11/2013, State Vs. Kabir Arif Khan PSH.N. Din Page no.2/9 DL of accused as ExPW1/C, arrest memo of accused and personal search memo as ExPW1/D & ExPW1/E. PW2 HC Jai Prakash has deposed along the lines of PW1 as he was present along with PW1 on the date and time of incident. PW3 ASI Rakesh Kumar is the DD writer who has deposed that he had written DD No.34 regarding the accident at Pant Nagar Bus Stand on 12.1.2013 and which is ExPW3/A. PW4 ASI Satya Pal Singh is the duty officer who has deposed that upon receipt of rukka which is ExPW4/A, FIR in the present matter which is Ex PW4/B was registered. Same is ExPW4/B. PW5 Ct Ram Kumar has deposed that on 11.1.2013, upon receipt of DD No. 34, he along with SI Umed reached the spot of occurrence where they found that the offending vehicle had broken an electric pole as well as a wall. Further, PW 5 has also deposed that they also found the accused at the spot of occurrence who was taken to AIIMS hospital by SI Umed Singh.
PW6 Najma Haider has in the capacity of a senior shift officer, BSES, Rajdhani Power Ltd. deposed that on 12.01.2013, an accident had taken place as a result of which an electric pole was damaged and the quantum of damage sustained was Rs.25000/. PW6 has proved his statement given to the police as ExPW6/A. PW7 SI Umed Singh is the investigating officer who has deposed with respect to investigation done by him in the present matter.
STATEMENT / DEFENCE OF THE ACCUSED FIR NO.11/2013, State Vs. Kabir Arif Khan PSH.N. Din Page no.3/9
4. In his examination under Section 313 CrPC., the accused denied the entire evidence put to him wherein he stated that he is innocent. He opted not to lead DE. Hence DE was closed.
ARGUMENTS
5. Learned APP for the State has argued that the testimonies of all prosecution witnesses have established negligence on the part of accused and that he be convicted for offences under Section 279/427 IPC and S.3 of the Prevention of Damage to the Public Property Act , 1984. On the other hand, it has been argued by the learned counsel for accused that accused is innocent as there is no evidence, which will prove guilt of accused to the hilt.
ANALYSIS AND FINDINGS
6. To bring home the guilt of accused as regards rash and negligent driving, three things need to be proved by the prosecution beyond any reasonable doubt. The three essential ingredients are as follows: (1)That the accident actually took place.
(2)That the accident took place due to rash and negligent driving. (3)That the accused was the person who was driving the vehicle at the relevant time.
7. The words i.e. "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Blacks Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
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8. In "Negligence, Mens Rea and Criminal Responsibility" by H.L.A.Hart in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently.
"[A] careful consideration is needed of the difference between the meaning of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The word 'negligently', both in legal and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
9. The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash' as doing something that may not be sensible without first thinking about the possible results.
10. Elaborating further, in State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression " rashness " and " negligence " held as follows :
FIR NO.11/2013, State Vs. Kabir Arif Khan PSH.N. Din Page no.5/9 "Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rash ness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual."
11. In Rathnashalvan v. State of Karnataka, (SC) 2007 A.I.R. (SC) 1064, the Hon'ble Supreme Court observed as follows:
"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....... 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.
12. 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 FIR NO.11/2013, State Vs. Kabir Arif Khan PSH.N. Din Page no.6/9 reck lessness or indifference as to the consequences. Crimi nal negligence on the other hand, is the gross and cul pable 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. The distinction has also been 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. 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 that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection." (See In Re : Nidamorti Nagabhusanam 7 Mad. HCR 119)".
14. For proving the guilt of the accused u/s 279 IPC, it has to be proved that the vehicle was being driven in a rash and negligent manner. The factum of rashness has been substantiated by the oral testimonies of PW1 Ct. Veer Pal and PW2 HC Jai Prakash who are eye witnesses to the incident and who have deposed that despite the fact that the offending vehicle was directed to stop, it could not be stopped at once by the driver/accused as it was being driven at a very high speed, as a result of which, the offending vehicle, entered the service lane and collided with the electric pole and a wall. As FIR NO.11/2013, State Vs. Kabir Arif Khan PSH.N. Din Page no.7/9 per their testimonies, due to the aforesaid collision, the electric pole as well as the wall concerned were also damaged. The factum of accident has also been substantiated by the site plan Ex. PW1/F which shows point A to be the spot where the offending vehicle had collided with the electric pole and point B to be the spot where the offending vehicle had collided with the boundary wall.
15. Thus it is clear that the oral testimonies of PW1 and PW2 have been corroborated by the documents such as site plan. Coupled with this, there is testimony of other official witnesses also. It has also not been denied by the accused in his statement recorded u/s 313 Cr.P.C. that he was driving the offending vehicle bearing no. DL 3CB5202 at the time of mishap. Further, the discrepancies pointed out by ld. Counsel for the accused in the testimonies of the prosecution witnesses are very minor in nature.
16. Thus, the court is satisfied that all the ingredients of section 279 IPC have been proved by the prosecution beyond doubt.
17. Moving on, Section 427 IPC prescribes punishment for mischief resulting into damage to the amount of Rs. 50/ or upwards. Further, section 3 of the Prevention of Damage to the Public Property Act , 1984 also provides punishment for causing mischief with respect to public property. Section 425 IPC defines mischief. This section necessitates three things:
1. Intention or knowledge of likelihood to cause wrongful loss or damage to public or to any person.
FIR NO.11/2013, State Vs. Kabir Arif Khan PSH.N. Din Page no.8/9
2. Causing the destruction of some property or change in it or in its situation.
3. Such change must destroy or diminish its value or utility or affect it injuriously.
18. A perusal of the ingredients of section 425 IPC revealed that the necessary intention or knowledge to cause wrongful loss or damage to the public or to any person is necessary for conviction u/s 427 IPC and u/s.3 of the Prevention of Damage to the Public Property Act , 1984. It is settled law that "mere negligence or carelessness" will not amount to mischief.
19. In the present matter, since negligence has already been established, it cannot be said that the accused had prior knowledge or intention to cause damage to the electric pole and boundary wall. Therefore, necessary ingredients of section 425 IPC have not been fulfilled and accused cannot be convicted u/s 427 IPC.
20. Guilt of the accused u/s 279 IPC has already been established, as discussed above. Hence, accused Kabir Arif Khan is accordingly, convicted for offence punishable under section 279 IPC and acquitted u/s 427 IPC as well as u/s. 3 of the Prevention of Damage to the Public Property Act , 1984.
Matter be listed for arguments on the point of sentence. Digitally signed by VASUNDHARA VASUNDHARA AZAD AZAD Date:
Announced in open Court on 31.10.2019. 2019.10.31 14:19:31 +0530 (VASUNDHARA AZAD) MM03 (SouthEast), Saket Courts, New Delhi FIR NO.11/2013, State Vs. Kabir Arif Khan PSH.N. Din Page no.9/9