Delhi District Court
State vs Kishan Paswan on 2 September, 2025
IN THE COURT OF SH. ANIMESH KUMAR, JUDICIAL MAGISTRATE FIRST CLASS-02, PATIALA HOUSE COURTS COURT, NEW DELHI STATE VS. KISHAN PASWAN FIR NO: 21/2002 P. S Chanakyapuri U/s 279 & 338 IPC Crc No./2581/2003 JUDGMENT
Date of its institution : 21.01.2004
Name of the complainant : Sh. Suhail Hamid
Date of Commission of offence : 23.01.2002
Name of the accused : Kishan Paswan, S/o Late Sh. Ram
Deo Paswan, R/o Wazirpur,
Badhwas, Vaishali District, Bihar.
Plea of accused : Not Guilty
Case reserved for orders : 09.06.2025
Final Order : Acquittal
Date of orders : 02.09.2025
Name of APP : Sh. Raghav Khurana
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BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1.Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused Kishan Paswan S/o Late Sh. Ram Deo Paswan for having committed the offence punishable u/s 279 & 338 of Indian Penal Code, 1861 (hereinafter referred as "IPC").
2.Briefly stated, as per the case of the prosecution, on 23.01.2002 at about 7:30 PM at S.P Marg, Chanakyapuri, New Delhi, the accused Kishan Paswan was driving Maruti Esteem car bearing no. HR 26P 1050 in a rash and negligent manner. While driving the offending vehicle in such a manner, the accused hit against one motorcycle bearing no. 99A 046 2904 which was being driven by Havaldar Sohail Hamid. Due to the accident, Havaldar Sohail Hamid fell down on the road and suffered grievous injuries on his leg.
3.After completing the formalities, the investigation was carried out by PS Chanakyapuri and a charge sheet was filed against the accused Kishan Paswan for the offence punishable u/s 279 & 338 IPC. During the pendency of the case, the accused stopped appearing in the Court. Consequently, he was declared absconder by this Court vide order dated 10.04.2008. Thereafter, he was apprehended by the police officials and a 1 supplementary charge-sheet was also filed for the offence punishable u/s 174 A IPC.
4.Thereafter, cognisance was taken and notice was framed against the accused vide order dated 15.05.2023 for the offence punishable u/s 279 & 338 IPC and charge was framed for the offence punishable u/s 174 A IPC vide order dated 15.05.2023 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5.In order to prove the guilt of accused, the prosecution examined the following eight witnesses:
• Sh. Surender Singh, the Duty Officer, deposed as PW-1; • Retd. SI Ravi Karan, deposed as PW-2;
• Retd. L/NK M.K Yadav, deposed as PW-3;
• SI Satpal, deposed as PW-4 (inadvertently mentioned as PW-3 in the judicial record) ;
• Sh. Rajpal, deposed as PW-5 (inadvertently mentioned as PW-4 in the judicial record);
• ASI Babu Lal, deposed as PW-6; (inadvertently mentioned as PW-4 in the judicial record);
• Col. Rohit Puri, deposed as PW-7 (inadvertently mentioned as PW-6 in the judicial record);2
• SI Devender, deposed as PW-8 (inadvertently mentioned as PW-7 in the judicial record); and • Retd. Inspector Mahender Singh, deposed as PW-9 (inadvertently mentioned as PW-8 in the judicial record).
5.PW-1 was the Duty Officer who had registered the present FIR. He had proved on record the registration of the FIR Ex. PW-1/A and rukka Ex.
PW-1/B.
6.PW-2 Retd. SI Shiv Karan deposed that on 23.01.2002, he reached at Kautilya Marg, S.P. Marg after receiving an information about an accident. After reaching the spot, he found one Maruti Esteem car bearing no. HR 26P 1050 at the spot. He also found the accused at the spot. The accused was driving the said maruti Esteem car. He also found one Hero Honda bearing no. 99A 06290Y along with driver M.K. Yadav and pillion rider at the spot. He also found one lady namely Mehar and one Army personnel at the spot. He had found that the accused had committed the accident. He correctly identified the accused in the court. He was not cross- examined by the accused despite the fact that opportunity was granted to him.
7.PW-3 Retd. L/ N.K. Yadav deposed that on 23.01.2002, he was coming from one WEC to Sena Bhawan on motorcycle make hero honda bearing 3 no. 99/A 04690Y. At about 7:15 pm when he reached S.P. Marg, Hawaldar Sahil Ahmed was the pillion rider. At about 7:30pm, when he reached S.P. Marg Dhula Kuna for taking right towards Malcha Marg and was waiting on the red light, suddenly one maruti car bearing no. HR 261050 came from the back side and hit his motorcycle. Thereafter, the injured Hawaldar Sahil Ahmed was shifted to Army Base Hospital. On the basis of statement given by the injured, the present FIR was registered. After the registration of FIR, site plan was prepared at the instance of PW-3 Ex.PW3/A. The offending vehicle was seized vide seizure memo Ex.PW4/ A and the accidental motorcycle was also seized vide seizure memo Ex.PW4/D. He was duly cross-examined by the Ld. Counsel for the accused.
8.PW-4 SI Satpal had take the photographs of the vehicles involved in the accident i.e. Esteem car bearing no. HR 26P 1050 and the motorcycle bearing no. 99A 046290Y. He identified both the vehicles from the photographs Ex. P-1 (colly) and also filed on record the negatives of the said photographs. He was duly cross-examined by the Ld. Counsel for the accused.
9.PW-5 Rajpal turned hostile and did not support the case of the prosecution. He deposed that he did not know anything about the present 4 case and came to know about the same when he had received summons. He was cross-examined by the Ld. APP for the State with the permission of the Court wherein he denied giving any statement recorded u/s 161 Cr.P.C. He also denied all the suggestions given by the Ld. APP. He was also cross-examined by the Ld. Counsel for the accused wherein he admitted that he did not see the accident of any vehicle.
10.PW ASI Babu Lal deposed that on 23.01.2002, he along with IO ASI Mahender went to the spot i.e. Kautilya Marg, S.P. Marg where he found two accidental vehicle i.e. one Esteem car bearing no. HR 26 P 1050 and one motorcycle bearing no. 99A 04629. He was told by an Army personnel M.K. Yadav who was also found at the spot that the said car had hit the said motorcycle due to which the pillion rider sustained injury. Thereafter, IO went to Army Base Hospital. Thereafter, he came to the spot and got case FIR registered. Thereafter, IO seized both the vehicle. IO also seized the driving license of the accused vide seizure memo Ex.PW4/C, the RC and insurance papers of the offending vehicle vide seizure memo Ex.PW4/E. He also conducted his personal search vide personal memo Ex.PW4/D. He could not identify the accused. He identified the vehicles from the photographs.
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11.PW ASI Babu Lal was cross-examined by the Ld. APP with the permission of the Court wherein his attention was drawn towards the accused. Thereafter, the said witness correctly identified the accused. He also admitted that the accused was arrested in his presence.
12.PW ASI Babu Lal was also cross-examined by the Ld. Counsel for the accused during which he denied the suggestion and stated that he went to the spot at about 8 AM and remained there till 10:30 PM. He also stated that he went to PS for the registration of the FIR after 10:30 AM and again came back to the spot. He also stated that no one was found at the spot when he reached there.
13.PW-6 Col. Rohit Puri deposed that on 23.01.2002, he was posted in Indian Army as MTO. On that day, he was travelling in a government gypsy no. 91B54984K. He was going to Delhi Cantt. via S.P Marg. At about 7:35 AM when they reached at S.P Marg near Kautilya Marg, one army motorcycle bearing no. 99A0462904 was found in accidental condition and rider L/NK MK Yadav was found present at the spot along with S. Hamid. In the accident, right leg of S. Hamid was fractured and he got him admitted in the Army Base Hospital. He also stated that one car bearing no. HR26P1050 was also found at the spot, however, he did not find the driver at the spot. Thereafter, he got the motorcycle released on 6 superdari and his statement was recorded by the IO. He correctly identified both the vehicles from the photographs. He was duly cross- examined by the Ld. Counsel for the accused.
14.PW-7 SI Devender deposed that on 23.01.2002, he was posted at Chanakyapuri Traffic Circle as Constable. On that day, he was on duty at SP Marg, Kautilya Marg. They were on duty as it was 23rd January on which a rehearsal parade was taking place. At about 7:30 AM, he saw motorcycle of Army coming from the side of Dhaula Kuan on which two Army personnels were riding. The motorcyclist have an indicator towards right side and started turning right side towards Chanakyapuri. In the meanwhile, on Esteem car bearing no. HR 26P 1050 was also coming from the Dhaula Kuan side which was being driven at a high speed. On the left hand side of the said Esteem car on the side of the road, some camels were moving. He further deposed that the said Esteem car hit the motorcycle of the Army personnel due to which right leg of the pillion rider got fractured. He further stated that the driver of the offending vehicle was in a hurry and was driving the same at a high speed and in careless manner. He saw the driver of the said car on the spot and identified the accused as the river. He identified both the vehicles from the photographs. He was duly cross-examined by the Ld. Counsel for the accused. 7
15.PW-8 was the investigating officer of the present case. He gave a detailed account of the proceedings conducted by him during the course of the investigation. He recorded the statement of the complainant and got the present FIR registered. He also got conducted the photography of the spot, mechanical inspection of the vehicles. He seized the vehicles involved in the accident, documents etc. He was duly cross-examined by the Ld. Counsel for the accused.
16.The accused had admitted the genuineness of the FIR, rukka and MLC of the victim, Ex. A-1 to A-3 respectively, u/s 294 Cr.P.C. Hence, formal proof of these documents was dispensed with.
DEFENCE OF THE ACCUSED
17.After examination of all prosecution witnesses, at the request of Ld. APP, the prosecution evidence was closed on 30.04.2025. Thereafter, the statement of accused was recorded u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") on 09.06.2025 wherein all the incriminating circumstances were put to him which he denied and took a defence that he was falsely implicated in the present case. He also stated that he was driving the offending vehicle but not at a high speed. The accident happened when the complainant suddenly turned his motorcycle towards the right without 8 giving any signal. He further stated that the accident happened due to the fault of complainant.
18.The accused did not lead any defence evidence. Thereafter, defence evidence was closed and final arguments were heard.
FINAL ARGUMENTS
19.During the final arguments, the Ld. APP submitted that the accident was caused by the accused himself. PW-7 who was also the eye witness of the present case had completely supported the case of the prosecution. The accused was driving the offending vehicle at the time of the accident at a very fast speed i.e. in a rash and negligent manner. The offending vehicle and the accused were found at the spot by the police officials also who reached there after receiving the information about the accident. Hence, the accused should be convicted in the present case.
20.Per contra, the Ld. Counsel for the accused, on the other hand, argued that the prosecution has failed to prove the guilt of the accused beyond reasonable doubts in the present case. It was argued that crucial eye witness PW-3 i.e. who was driving the motorcycle involved in the accident failed to identify the accused as the driver of the offending vehicle. Another public witness PW-4 Rajpal did not support the case of the prosecution. 9 Even otherwise, the prosecution failed to prove beyond reasonable doubts that the accused was driving the offending vehicle in a rash and negligent manner. There are many loopholes in the investigation conducted by the investigating agency. Thus, benefit of doubt needs to be extended to the accused.
21.I have heard the Ld. APP and Ld. defence counsel and have perused the case file.
22.Before, discussing the testimonies of PWs, it would be prudent to discuss the legal position involved in the present case.
LAW INVOLVED IN THE PRESENT CASE
23.Section 279 of the IPC provides for the offence of rash driving or riding on a public way. It reads as under:
"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."
24.On bare reading of the above provision, it becomes clear that there are primarily three essential ingredients which constitute offence of rash driving on a public way.
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a. Person must be driving or riding on a public way; b. He must be driving in a rash or negligent manner; c. Likely to endanger human life or cause hurt or injury to any person
25.Section 338 IPC provide for the offences of causing grievous hurt by an act endangering life or personal safety of others. This provision is the consequence of a rash or negligent act of driving on a public way punishable u/s 279 IPC.
338. Causing grievous hurt by act endangering life or personal safety of others- Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both."
26.The doing of a rash or negligent act, which causes, grievous injury /is the essence of section 338 IPC. There is a slight distinction between a rash act and a negligent act. 'Rashness' conveys the idea of recklessness or doing an act without due consideration and 'negligence' connotes want of proper care. A rash act, therefore, implies an act done by a person with recklessness or indifference to its consequences. The doer, being conscious of the mischievous or illegal consequences, does the act knowing that his act may bring some undesirable or illegal results but 11 without hoping or intending them to occur. A negligent act, on the other hand, refers to an act done by a person without taking sufficient precautions or reasonable precautions to avoid its probable mischievous or illegal consequences.
27.A perusal of the above discussed provisions makes it very clear that an act of rashness or negligence endangering the human life or personal safety is a common ingredient in all these offences. Now a question arises as to what would constitute a rash or negligent act. At this stage, reference may be taken from the decision of the Hon'ble Supreme Court in the case of Mohammed Aynuddin @ Miyan vs. State of Andhra Pradesh, wherein the Hon'ble Apex Court has discussed in detail as to what constitute a rash or negligent act. It interalia held the following:
"A rash act is primarily an over hasty act. It is opposed to deliberate act. Still a rash act can be a deliberate act in the sens 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."
28.Further, in the case of Braham Dass vs. State of Himachal Pradesh (2009) 3 SCC (Cri) 406, while discussing the legal position with respect to 12 an offence u/s 279/304A IPC, the Hon'ble Supreme Court has interalia held the following:
"Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."
29.Therefore, indifference to the consequences of one's act or absence of reasonable care and precaution is the most important ingredient constituting rashness or negligence. It should be noted that intention of the person acting rash or negligent act is immaterial. What is important is that he has not taken due care or has done the said act with indifference to the consequences.
30.Further, it should be noted that there should be direct link between the act or rashness or negligence and hurt/grievous hurt/death, as the case may be, suffered by the victim. The Hon'ble Delhi High Court in the case of Abdul Subhan vs. State (NCT of Delhi) 133 (2006) DLT 562 has discussed the ingredients which need to be established by the prosecution for convicting an accused u/s 279/304 A IPC. The Hon'ble Court has interalia held the following:
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"As observed in Badri Prasad (supra) the essential ingredients of section 279 IPC are 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 hurt or injury to any person. As regards the offence punishable under section 304A IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. As observed in Badri Prasad (supra), to establish the offence either under section 279 or section 304A, the commission of a rash or negligent act has to be proved."
31.The above-mentioned judgment sufficiently enlightens us that for establishing accusations u/s 338 IPC, prosecution is not only required to establish that the accused was rash or negligent while doing the said act or omitting to do any act, but it is additionally incumbent on prosecution to establish that the causa causans of injury sustained by the injured or the proximate cause of injury was the act of accused.
ANALYSIS & FINDINGS
32.The accused Kishan Paswan has been charged for the offence punishable u/s 279 & 338 IPC. After perusing the materials available on record, I find that the prosecution has failed to prove the guilt of the accused Kishan Paswan in the present case beyond reasonable doubts for the reasons discussed in the subsequent paragraphs. 14
33.First and foremost, it should be noted that the prosecution failed to prove beyond reasonable doubts the most important fact that it was the accused Kishan Paswan who was driving the offending vehicle at the time of the accident. The eye witnesses / public witness PW-3 L/NK M.K Yadav who was driving the motorcycle at the time of the accident failed to identify the accused as the driver of the offending vehicle. Another public witness PW-4 Rajpal turned completely hostile and did no support the case of the prosecution. He also failed to identify the accused as the driver of the offending vehicle. Even one of the police witnesses ASI Babu Lal could not initially identified the accused. He identified him subsequently only when he was cross-examined by the Ld. APP and his attention was drawn towards him.
34.Although, another eye witness PW-7 correctly identified the accused as the driver of the offending vehicle, however, his correct identification would raise even more questions. As per the prosecution, PW-7 was on traffic duty at the spot at the time of the incident. However, no documents were brought on record to prove this fact. The relevant duty roster of DD entry of PW-7 was not proved on record by the prosecution. Also, it should be noted that the accident happened on 23.01.2002 and the PW-7 was examined on 03.12.2024. It would be very difficult to believe that a police 15 official who had only seen the accused once at the spot would correctly identify him after the passage of more than 22 years.
35.Secondly, even if it is assumed that it was the accused who was driving the car at the time of the accident and hit the motorcycle which caused the accident, however, the same would not be sufficient to prove that the accused was driving the said vehicle at the time of the accident in a rash and negligent manner.
36.The term "rash and/or negligent driving" has already been discussed at length in the preceding part of this judgment. Indifference to the consequences of one's act or absence of reasonable care and precaution is the most important ingredient constituting rashness or negligence. It should be noted that intention of the person acting rash or negligent act is immaterial. What is important is that he has not taken due care or has done the said act with indifference to the consequences.
37.A rash act is primarily an overhasty 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 16 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.
38.In the case of Ravi Kapur vs. State of Rajasthan (2012) 9 SCC 284, the Hon'ble Supreme Court while discussing the meaning of rash and negligent driving has interalia observed the following:
10. In order to examine the merit or otherwise of contentions (b) and (c) raised on behalf of the appellant, it is necessary for the Court to first and foremost examine (a) what is rash and negligent driving; and (b) whether it can be gathered from the attendant circumstances. Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 IPC.XXXXX "12. Rash and negligent driving has to be examined in the light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined 17 in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to "rash and negligent driving" within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words "manner so rash or negligent as to endanger human life". The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted."
39.The aforesaid judgment enlightens that it may not be possible to prove the factum of rash and negligent act may not be construed in isolation. It may not be possible to prove the same through direct evidence. It has to be seen or examined in light of the attendant circumstances.
40.In order to establish the rashness or negligence on the part of the accused, the prosecution has primarily relied upon the testimony of the eye witness PW-7 who stated that that the accused was driving the offending vehicle at a high speed and in a careless manner. No further statement was made by the complainant on this aspect. Moreover, the eye 18 witness PW-2 did not make any statement regarding rash and negligent driving.
41.It is a settled proposition of law that high speed simpliciter would not be sufficient enough to automatically attribute rashness and negligence on the part of the accused. In the case titled State v. Parmodh Singh, 2009 CrLJ (NOC) 277, it has been held that:
"Mere driving of a vehicle at a high speed or slow speed does not lead to an inference that negligent or rash driving had caused the accident resulting in injuries to the complainant. In fact speed is no criteria to establish the fact of rash and negligent driving of a vehicle"
42.Making a bald statement about high speed would be of no help to the prosecution. PW-7 did not depose anything about the manner in which the offending vehicle was being driven by the accused at the time of the accident i.e. whether the same was being driven in a zig zag manner, whether the same was being driven in violation of traffic rules etc. In fact, a close perusal of the testimony of PW-7 would show that it was the motorcycle who had taken right turn and there were many camels moving at the spot at that time. He stated that camels were moving on the left side of the accused. Under these circumstances, it would be natural for the 19 accused to move on the right side. It could not be said that he was negligent.
43.Last but not the least, the investigating agency did not conduct a proper investigation in the present case. The investigating agency did not examine another eye witness Meher during the course of the investigation who was present in the offending vehicle and had seen the accident.
44.Hence, I find that while the accident was very unfortunate, however, there are insufficient materials on record to prove that the accused was driving the offending vehicle in a rash and negligent manner at the time of accident.
45.Therefore, in view of the above discussions and findings, I find that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt in the present case and benefit of doubts needs to be extended to the accused. Thus, there are insufficient materials on record to convict the accused in the present case for the offence punishable u/s 279 & 338 IPC.
46.Hence, the accused Kishan Paswan stands acquitted for the offence punishable u/s 279 & 338 IPC.
Announced in the open court 20 Digitally signed by ANIMESH KUMAR ANIMESH Date:
KUMAR 2025.09.04
15:22:11
On 02.09.2025
+0530
(Animesh Kumar)
JMFC-02, Patiala House Courts
New Delhi
It is certified that this judgment contains 21 pages and each page bears my signatures. ANIMESH Digitally signed by ANIMESH KUMAR KUMAR Date: 2025.09.04 15:22:16 +0530 (Animesh Kumar) JMFC-02, Patiala House Courts New Delhi 21