Delhi District Court
State vs . Hemant Khurana on 21 May, 2011
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IN THE COURT OF Ms. CHETNA SINGH:MM03(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Hemant Khurana
FIR No.119/2009
U/s : 279/338 IPC
P.S. : Vasant Vihar
JUDGMENT
1.FIR No. : 119/2009
2.Date of the Commission of the offence : 07.03.2009
3.Name of the accused : Hemant Khurana S/o
Late Sh. Arjun Dass
Khurana R/o GH12/114,
Paschim Vihar, New
Delhi.
4.Name of the complainant : Smt. Chanchal Kapila
W/o Late Sh. P.C. Kapila
R/o House No.375 near
Girls School, Munirka,
New Delhi.
5.Offence complained of : 279/338 IPC
6.Plea of accused : Pleaded not guilty
FIR No119/2009 State Vs. Hemant Khurana Under Section 279/338 IPC
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7.Final order : Acquitted
8.Date of final order : 21.05.2011
BRIEF STATEMENT OF THE REASONS FOR THE DECISION The story of the prosecution is that on 07.03.2009 at about 07:50 p.m at Baba Gang Nath Marg in front of JNU Main Gate, falling within the jurisdiction of Police Station Vasant Vihar, the accused Hemant Khurana was driving the Santro Car bearing number DL3CAB5335 in a rash and negligent manner and while driving the said vehicle in such a manner, the accused hit against one pedestrian namely Smt. Chanchal Kapila and caused grievous injuries on the person of the said complainant.
On the basis of the said allegations and on the basis of the complaint of the complainant Smt. Chanchal Kapila, an FIR bearing number 119/2009 under section 279/337 IPC was lodged at Police Station Vasant Vihar on 03.05.2009.
After investigation, chargesheet under section 173 Cr.P.C was filed on 08.09.2009.
On the basis of the chargesheet, a charge for the offences punishable under section 279/338 IPC was framed against the accused Hemant FIR No119/2009 State Vs. Hemant Khurana Under Section 279/338 IPC 3 Khurana and read out to the said accused person, to which the accused pleaded not guilty and claimed trial on 17.05.2010.
JUDICIAL RESOLUTION To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that to 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.
These 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.
Quoting from the article "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 FIR No119/2009 State Vs. Hemant Khurana Under Section 279/338 IPC 4 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'."
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.
Elaborating further, in State of H.P. vs. Piar Chand, Cr. Ap peal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression " rashness " and " negli gence " held as follows :
"18. 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 rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care FIR No119/2009 State Vs. Hemant Khurana Under Section 279/338 IPC 5 and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a indi vidual."
The court would also like to refer to a very recent judgment of the Honorable Supreme Court of India elaborating further the requirements of section 304A of IPC. Quoting from Rathnashalvan v. State of Karnataka, (SC) 2007 A.I.R. (SC) 1064.
"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."
FIR No119/2009 State Vs. Hemant Khurana Under Section 279/338 IPC 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 conse quences. 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 gen erally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imper ative duty of the accused person to have adopted.
8. The distinction has been very aptly pointed out by Holloway, J. in these words :
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. 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)"
FIR No119/2009 State Vs. Hemant Khurana Under Section 279/338 IPC 7 APPRECIATION OF EVIDENCE: The prosecution in order to prove the above said allegations against the accused Hemant Khurana has to prove that the said accused was driving the Santro Car bearing number DL3CAB5335 in a rash and negligent manner and while driving the said vehicle in such a manner, the accused hit against one pedestrian namely Smt. Chanchal Kapila and caused grievous injuries on the person of the said complainant.
In the present case the only witness who through her oral testimony could prove the guilt of the accused is the complainant/injured herself namely Smt. Chanchal Kapila.
In order to prove the said allegation, the prosecution has to procure the attendance of the said witness and has to examine her in order to bring home guilt of the accused Summons sent to the complainant/injured Smt. Chanchal Kapila received back with the report that the said complainant has expired. Copy of death certificate is also annexed along with the summons.
Besides the complainant, there is no other witness who can prove the case of the prosecution, as none of the witness, is eye witness in the present case.
As the complainant has expired, no purpose would be served by summoning and examining the remaining witnesses, who are merely formal FIR No119/2009 State Vs. Hemant Khurana Under Section 279/338 IPC 8 witnesses in the present case.
In the absence of the testimony of the complainant/injured Smt. Chanchal Kapila, it is not possible for the prosecution to prove the guilt of the accused person through the testimony of remaining witnesses, who are formal witnesses in the present case. Accordingly, prosecution evidence stands closed.
As nothing incriminating is found against the accused, statement of accused under section 313 Cr.P.C is dispensed with and accused Hemant Khurana is accordingly, acquitted.
As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 21.05.2011 (CHETNA SINGH) MM03(South)/21.05.2011 Certified that this judgment contains 8 pages and each page bears my signatures.
(CHETNA SINGH) MM03(South)/21.05.2011 FIR No119/2009 State Vs. Hemant Khurana Under Section 279/338 IPC