Delhi District Court
State vs . Ramesh Kumar on 3 September, 2019
STATE VS. RAMESH KUMAR
IN THE COURT OF SH. VIJAY KUMAR JHA, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SHAHDARA), KKD COURTS DELHI.
FIR No.174/2011
PS : Anand Vihar
U/S 279/304 A IPC
State vs. Ramesh Kumar
a) ID No. of the case : 83457/2016
b) Date of Institution : 03.11.2011
c) Date of commission of offence : 09.06.2011
d) Name of complainant : Ct. Birjesh
e) Name of the accused, and : Ramesh Kumar
parentage and address S/o Shri Achchey Lal
R/o 85/177, Jhuggi Basti,
Anand Vihar, Delhi.
f) Offence complained of : U/S 279/304 A IPC
g) Plea of the accused : Pleaded not guilty
h) Date of judgment reserved : 03.09.2019
i) Final order : Acquittal
j) Date of such Order : 03.09.2019
JUDGEMENT
1. The case FIR was lodged on the basis of the written complaint of the complainant Rahul Kampani in which the complainant stated that on June 9, 2011 the complainant in order to take his mother Smt. Surender Kampani to Jagriti Enclave Temple, took a rickshaw FIR NO.174/2011, PS Anand Vihar Page 1/13 STATE VS. RAMESH KUMAR on which they were going to the temple. At about 10:10 AM when the rickshaw was at T point of Jagriti Enclave the complainant suddenly saw at the back and found that one motorcycle driver driving his motorcycle at high speed, rashly and negligently struck their rickshaw because of which the mother of the complainant received injuries on her head and leg. The complainant stopped the motorcycle driver who disclosed his name as Ramesh Kumar i.e. the accused in the present case. The complainant took his mother to Pushpanjali Hospital where the accused also went. The complainant also stated that his mother was unconscious and that legal action be taken against the accused who was produced by the complainant before the police official.
2. As per the chargesheet on the basis of the complainant Head Constable Ajender Kumar prepared the rukka on the basis of which case FIR under section 279/337 of Indian Penal Code was registered. In the course of the investigation of the case the site plan was prepared the statement of the witnesses were recorded under section 161 of Code of Criminal Procedure; the accused was arrested and as during the course of the treatment the injured Smt. Surender Kampani expired section 304A of Indian Penal Code was added and postmortem of the disease was conducted and after completing the investigation the charge sheet was filed under section 279/304A of Indian Penal Code.
FIR NO.174/2011, PS Anand Vihar Page 2/133. Vide order dated January 1, 2012 the notice under section 251 Code of Criminal Procedure was served upon the accused for having committed the offenses falling under section 279 and 304A of Indian Penal Code to which the accused pleaded not guilty and claimed trial.
4. In order to bring home the charges against the accused person on behalf of the prosecution following witnesses have been examined: i. The complainant Rahul Kampnai as PW1 who as per the case of the prosecution is the sole eyewitness.
ii. Shri Sanjay Khanna as PW2 who identified the dead body of the deceased Smt. Surender Kampani.
iii. Head Constable Shri Bhagwan as PW3 who was the duty officer on the relevant date and had recorded the information vide DD no. 12 dated June 25, 2011 regarding the death of the injured Smt. Surender Kampani in the road accident.
iv. Constable Kheta Ram as PW4 who had taken some part in the investigation along with the investigating officer ASI Anand Prakash. v. Head Constable Arvind Kumar as PW5 who on the date of incident that is June 9, 2011 was duty officer and had registered the case FIR Ex. PW5/B. vi. Dr. Sumit Sharma as PW6 who had prepared the MLC of the injured Smt. Surender Kampani Ex. PW6/A. vii. Shri Anil Kumar Jain as PW7 who was the director of Jain Hospital where the injured Smt. Surender Kampani after her initial treatment in Pushpanjali Possible was taken and had expired.
FIR NO.174/2011, PS Anand Vihar Page 3/13STATE VS. RAMESH KUMAR viii. ASI Ajender Kumar as PW8 the initial investigating officer in the present case who had conducted the substantial part of the investigation.
ix. SI Dheeraj Yadav as PW9 who had moved the request letter for preserving the dead body of the deceased Smt. Surender Kampani and for conducting the postmortem.
x. SI Anand Prakash who was the second investigating officer in the present case and had filed the chargesheet after the completion of the investigation.
xi. Head Constable Jagsoran as PW11 who had taken part in the investigation along with the first investigating officer. xii. Shri Taslimuddin Siddiqui as PW12 who had conducted the mechanical inspection of the offending motorcycle bearing registration no. DL7 SBA5296 and filed his report Ex. PW12/A.
5. During the deposition of the witnesses of the prosecution the relevant documents were proved and also under section 294 of Code of Criminal Procedure the accused admitted certain documents which was duly exhibited.
6. After all the witnesses of the prosecution were examined the statement of the accused under section 313 of Code of Criminal Procedure was recorded. The incriminating facts which had come on record during the deposition of the witnesses of the prosecution were put to the accused and the accused was asked for his FIR NO.174/2011, PS Anand Vihar Page 4/13 STATE VS. RAMESH KUMAR explanation. The accused denied entire case of the prosecution and stated that the accused had been falsely implicated in the present case. As per the accused the accident had already happened and the accused was merely present at the scene of accident. The accused did not see any rickshaw at the spot and the accused also heard people present at the spot saying that the deceased had fallen down from rickshaw. As per the accused the accused had taken the injured lady after taking Left from a car to the hospital. At the hospital the daughterinlaw of the injured had come along with the complainant. The complainant took the accused to the scene of accident where the complainant had some talks with the police official and thereafter the accused was implicated in the present case. As per the accused the accident was not caused by him. On behalf of the accused no witness in his defense has been examine.
7. I have heard the arguments and perused the record.
8. The charge against the accused is that the accused on June 9, 2011 was driving his motorcycle bearing restriction no. DL7 SBA5296 and rash and negligent manner and caused the accident in which Smt. Surender Kampani died. The offenses against the accused fall under section 279 and 304A of Indian Penal Code. With respect to both offenses the material facts which the prosecution has to prove FIR NO.174/2011, PS Anand Vihar Page 5/13 STATE VS. RAMESH KUMAR beyond reasonable doubt for convicting the accused that either the accused was rash or negligent in driving his motorcycle which caused the accident in which the deceased died.
9. The term; 'negligence' as used in this section does not mean mere carelessness. The rashness or negligence must be of such nature so as to be termed as a criminal act of negligence or rashness. Section 80 of the Indian Penal Code provides; 'nothing is an offence which is done by accident or misfortune and without any criminal knowledge or intention in the doing of a lawful act in a lawful manner by a lawful means and with proper care and caution'. Neither section 279 nor 304A of Indian Penal Code punishes for mere accident, misfortune or error of judgment. It is absence of such proper care and caution, which is required of a reasonable man in doing an act, which is made punishable under this section.
10. It is the degree of negligence, which really determines whether a particular act would amount to a rash and negligent act as defined under this section. It is only when the rash and negligent act is of such a degree that the risk run by the doer of the act is very high or is done with such recklessness and with total disregard and indifference to the consequences of this act, the act can be constituted as a rash and negligent act under this section. Negligence is the gross and culpable neglect or failure to exercise FIR NO.174/2011, PS Anand Vihar Page 6/13 STATE VS. RAMESH KUMAR reasonable and proper care, and precaution to guard against injury, either to the public generally or to an individual in particular, which a reasonable man would have adopted. (See S. N. Hussain v. State of AP AIR 1972 SC 685)
11. In order to impose criminal liability under section 304A of Indian Penal Code, it is essential to establish that death is the direct result of the rash and negligent act of the accused. It must be causa causans the immediate cause, and not enough that it may be causa sine qua non proximate cause. (Ref. Suleman Rahiman Mulam v. State of Maharashtra AIR 1968 SC 829; Ambalal D Bhatt v State of Gujarat AIR 1972 SC 1150)
12.A rash act is primarily an overhasty act. Negligence is a breach of a duty caused by omission to do something, which a reasonable man guided, by those considerations which ordinarily regulate the conduct of human affairs would do.
13. In Balachandra Waman Pathe v. State of Maharashtra, 1968 SCD 198. the Supreme Court explained the distinction between a rash and a negligent act in the following manner: An offence under section 304A Indian Penal Code may be committed either by doing a rash act or a negligent act. There is a distinction between a rash act and a negligent act. In the case of a rash act as observed by Straight, J. in Idu Beg's case I.L.R. 3 ALL. 776, the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that FIR NO.174/2011, PS Anand Vihar Page 7/13 STATE VS. RAMESH KUMAR 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. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Again as explained in Nidamarti Negaghushanam's case 7 Mad. H.C.R. 119, a 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 if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection.
14.In the present case the deposition of the witnesses have to be analyzed in order to find out if the bus which the accused was driving with which the accident happened and the victim died was being driven by the accused either rashly or negligently in order to fasten the liability of section 304A of Indian Penal Code.
15.In the entire array of the witnesses of the prosecution there is only one witness namely the complainant; PW1 who as per the case of the prosecution had seen the accident, the precise manner in which the accident caused in which the deceased who was the mother of the complainant had lost her life in the accident caused by the FIR NO.174/2011, PS Anand Vihar Page 8/13 STATE VS. RAMESH KUMAR accused with his motorcycle which was being driven as per the complaint exhibit PW1/A at "high speed, rashly and negligently", the four most crucial words in the entire case on which the fate of the accused as well as that of the case of the prosecution hinges.
16.As already stated hereinabove for attracting section 304A of Indian Penal Code the essential things which need to be proved by the prosecution is that the accused had either been rash or negligent in driving the motorcycle because of which death was caused. If a person is driving a vehicle at a highspeed it may or may not amount to rashness or negligence depending upon various facts and circumstances.
17. The material part of the deposition of PW1 is that, "On 09.06.2011, I along with my mother namely Mrs. Surendra Kampani was coming from the temple in a rickshaw when the accused (who is present in the court today, correctly identified by the witness) at about 10 AM riding a motorcycle banged on the back side of the rickshaw resulting in my mother losing her momentum and she fell down on my head and suffered neruo damage... The accused was driving the motorcycle no. DL 7 SBA5296 and he was driving the motorcycle at a very higher speed in a rash or negligent manner and hit the above said rickshaw due to which my mother fell down from rickshaw and FIR NO.174/2011, PS Anand Vihar Page 9/13 STATE VS. RAMESH KUMAR sustained injuries on her legs and head."
18. It may be noted that the complainant was sitting on the rickshaw along with his mother and the offending motorcycle struck the rickshaw from back. In the deposition recorded before the court the complainant did not depose that how the complainant had seen the manner in which the accused was driving the offending motorcycle, though in the complaint of the complainant on the basis of which the case FIR was registered Ex. PW1/A the complainant had stated that when the complainant suddenly looked behind the complainant saw the accused coming rashly and negligently at high speed. The substantive evidence of the witnesses what is deposed by any witness before the court and the previous statement of the complainant can only used for the purpose of contradiction or corroboration. As in the deposition the complainant did not depose regarding the relevant fact of the complainant seeing the accused the manner in which the complainant had observed the accused driving the offending motorcycle the deposition of the complainant cannot be believed with respect to the manner in which the alleged accident had happened in which the mother of the complainant had expired.
19.As per the complaint and the deposition of the sole eyewitness that is the complainant; PW1, the reasons for the fatal accident was that the accused was driving the offending motorcycle at high speed, FIR NO.174/2011, PS Anand Vihar Page 10/13 STATE VS. RAMESH KUMAR rashly and negligently.
20. As far as the accused driving the offending motorcycle at high speed is concerned the Hon. Supreme Court in State of Karnataka v. Satish, 1998 SCC (Crl.) 1508 has observed that driving at a highspeed by itself does not imply negligence or rashness. Negligence or rashness would have to be established as a fact. The Hon. Delhi High Court in Abdul Subhan v. State (NCT) 2007(1) R.C.R.(Criminal) 260 has observed that the expression highspeed could range from 30 km to over 100 km per hour and that the perception of the speed differs from person to person.
21. The complainant neither in his complaint exhibit Ex.PW2/A nor in his examinationinchief stated that if the accused was driving the offending motorcycle at a highspeed what actually was the speed of the motorcycle. The prosecution has not established if the accused was driving the offending motorcycle and highspeed what exactly the speed of the motorcycle immediately before the accident was. Also, it has not been proved by the prosecution that the accused was in fact driving the offending motorcycle at high speed by way of any scientific evidence which has been referred to the judgment of the Hon. Delhi High Court in Abdul Subhan (supra) for example skid marks etc. the deposition of PW1 is not such which in view of section 3 of Evidence Act it could be taken as proved that the accused was in fact driving the offending FIR NO.174/2011, PS Anand Vihar Page 11/13 STATE VS. RAMESH KUMAR motorcycle at high speed.
22.From the deposition of PW1 and the case of the prosecution it is not clear that the accused was rash and negligent because of the fact that the accused was driving the offending motorcycle at high speed or because of some other reasons. High speed solely cannot be the indication of rashness or negligence in driving a vehicle as discussed herein above and therefore the accused is entitled for his acquittal. But if with the allegation that the accused was driving the offending vehicle rashly and negligently something else was meant then it could be said that whether a person is rash or negligent in any given situation is not a fact but it is an opinion or the state of the mind of the person who observes a person who is allegedly rash and negligent in doing any act alike in the present case driving the offending vehicle with which the fatal accident had occurred.
23.It is the duty of the prosecution to put before the court all the material facts with respect to an alleged offense and it is the court which has to draw the opinion on the basis of facts as proved by the prosecution whether or not the charges against the accused person is under section 279/304 A Indian Penal Code is made out and not which has not been done in the present case.
24. In view of aforesaid discussion the accused is hereby acquitted not only for the offense under section 304A of Indian Penal Code but also for the offense under section 279 Indian Penal Code as the FIR NO.174/2011, PS Anand Vihar Page 12/13 STATE VS. RAMESH KUMAR material ingredients of both offenses are the same which the prosecution has failed to prove beyond reasonable doubt primarily because of the faulty investigation. VIJAY Digitally signed by VIJAY KUMAR KUMAR JHA Date: 2019.09.04 JHA 12:12:51 +0530 Dictated & Announced in the Open Court (VIJAY KUMAR JHA) on 03.09.2019 Additional Chief Metropolitan Magistrate Shahdara Distt., KKD Courts, Delhi FIR NO.174/2011, PS Anand Vihar Page 13/13