Delhi District Court
State vs . Bittu on 12 July, 2012
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Bittu
FIR NO: 414/04
P. S. Ambedkar Nagar
U/s 279/338 IPC
Unique ID no. 02403R0446072005
JUDGMENT
Sl. No. of the case and : 282/2 (12.10.2010) Date of its institution : 25.4.2005 Name of the complainant : Sh. Hari Om Date of Commission of offence : 22.8.2004 Name of the accused : Sh. Bittu Offence complained of : Section 279/338 IPC Plea of accused : Not Guilty Case reserved for orders : 4.6.2012 Final Order : CONVICTED Date of Judgment : 12.7.2012 State Vs. Bittu FIR no. 414/04 BRIEF STATEMENT OF FACTS FOR THE DECISION:
This is the prosecution of the accused Bittu upon a charge sheet filed by the police station Ambedkar Nagar 279/338 IPC subsequent to the investigation done by them in FIR no. 414/04.
As per the prosecution's case on 22.8.2004 at about 12.05 pm in front of Gali no. 14, DDA Flats, Madangir, Ambedkar Nagar, New Delhi, accused was drove a bus no. DL 1PB 4644 in a rash and negligent manner so as to endanger human life and personal safety of others and caused grievous injuries to Sh. Hari Om who was trying to board the bus despite the fact that he was handicapped and thereby committed an offence u/s 279/338 IPC.
After completing the formalities, charge sheet was filed against the accused and the accused was stated the substance of the offence committed by him to which he pleaded not guilty and claimed trial.
The trial started on framing of charge and to prove its case, prosecution examined seven witnesses.
PW 1 is Sh. Hari Om , the injured in this case, who deposed that on 22.8.2004 he had come at Madangir to meet his relative and he was standing at Bus Stand, DDA Flats, Madangir when bus of route no. 423 had come and when he was trying to board the bus, the driver of the bus suddenly accelerated the bus consequent to which he fell. Front wheel of the bus had climbed over his leg consequent to which he received injuries. He was taken to AIIMS hospital. He proved his complaint as Ex.PW1/A. He correctly identified the accused in the Court.
PW 2 is Sh. Narender Singh who proved the computer print out of the record of bus no. DL 1PB 4644 as Ex.PW2/A. PW 3 is Sh. Daulat Ram, owner of the offending bus who got the bus released State Vs. Bittu FIR no. 414/04 on superdari vide superdarinama Ex.PW3/A. He also proved his reply to the notice u/s 133 M.V Act as Ex.PW3/B. PW 4 is Dr. Rajeev Kumar who proved the MLC of the injured Hari Om as Ex.PW4/A. PW 5 is Sh. Shadi Lal who proved the mechanical inspection of bus no. DL 1PB 4644 as ex.PW5/A. PW 6 is Dr. Piyush Ranjan who proved the XRay report of the injured as Ex.PW6/A. PW 7 is HC Anand Pal who was the investigating officer of the present case and proved his investigation. He deposed that on the date of incident, on receiving of DD no.9 he alongwith Ct. Mahender reached the spot where they came to know that the injured was shifted at the AIIMS hospital. Thereafter, he alongwith Ct. Mahender reached at AIIMS hospital where they met injured Hari Om who stated them that he will not make his statement and he will make his statement after discussion with his family. On 23.8.2004 injured came to the police post and gave his statement, same is already Ex.PW1/A. He also proved certain documents like rukka as ex.PW7/A, site plan as Ex.PW7/B, seizure memo of the bus as Ex.PW7/C, arrest and personal search memo of accused as Ex.PW7/E and Ex.PW7/F. This is the overall evidence of the prosecution.
When the prosecution concluded its evidence, the accused was examined u/s 313 Cr.PC,wherein the incriminating evidence put to him to which he replied that all allegations against him are incorrect and all documents false and fabricated.
Arguments of both the sides were heard.
On one hand Ld. APP has argued that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt.
State Vs. Bittu FIR no. 414/04
On the other hand, defence counsel has argued that rashness and negligence has not been proved on record. There is no evidence on the record that the accused was driving the vehicle in a rash and negligent manner. The accused deserves acquittal in this case.
In order to bring home the guilt of the accused, what prosecution has to prove is that the accused was driving the vehicle in question, the driving was rash and negligent and the injuries to the injured took place pursuant to such accident. The prosecution has to prove all these ingredients in order to succeed.
As far as the first ingredient regarding the identity of the accused is concerned, there is no dispute because PW 1 Hari Om who is the injured in this case and who is the eye witness of this incident has categorically deposed that the accused was driving the offending bus on the date of incident. Not only this the identity of the accused Bitto is further fortified by the testimony of the owner of the vehicle ie. Daulat Ram who not only proved the reply of the notice under section 133 M.V.Act but has deposed that the accused was the driver of his bus. During investigation also he replied to the notice of 133 M.V.Act that on 22.8.3004, at around 12 pm his bus was being driven by the accused Bittu. There is no contrary evidence on behalf of the accused Bittu to refute this fact. Therefore both the evidence in corroboration with each other clearly proves the fact the accused was the driver of bus on the date of accident.
Now I come to the second requirement of rash and negligent driving. The only evidence to this effect is the testimony of Sh. Hari Om, PW 1. Relevant portion of his testimony is as under;
"On 22.8.2004 I had come at Madangir to meet my relative and I was standing at Bus Stand DDA Flats, Madangir and Bus Route no. 423 had come. I was to move up in the bus from front gate and when I was trying to go up, the State Vs. Bittu FIR no. 414/04 driver of the bus suddenly accelerated the bus. Consequent to which I fell. Front wheel of the bus had climbed over my leg consequent to which I received injuries".
This is the only evidence regarding the rash and negligent driving of this accused Bittu.
Rashness and negligence in a case involving a death by negligent driving was explained by Hon'ble Supreme Court of India in Rathnashalvan Vs. State of Karnataka, (SC) 2007 AIR (SC) 1064 wherein it is held that;
"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 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 State Vs. Bittu FIR no. 414/04 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 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."
Negligence is a tort as well as a crime and can be 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.
Apart from this statement, there is no other evidence to show that there was rashness or negligence in the driving of the accused on the date of incident. Therefore, the conspicuous part of his testimony is that (i) he states that he was boarding the bus from the front gate and; (ii) the accused suddenly accelerated the bus due to which the injured fall from the bus.
It is the duty of the driver of a bus to ensure before starting the bus that the passengers had boarded the bus properly and securely. The testimony of the complainant goes on to show that at the relevant point of time he was boarding the bus from front gate as State Vs. Bittu FIR no. 414/04 he was a handicapped person. But before he could have boarded the bus properly and and had occupied a seat in that bus the driver accelerated it due to which th injured fall down from the bus and the front wheel of the bus scaled over his leg. Therefore from the testimony of this witness it is clear that the act of the accused in accelerating the bus before ensuring that the passengers actually boarded the bus amounts to a rash and negligent act. The injured was boarding the bus from the front gate and there was a complete opportunity for the accused to ensure his safe boarding before accelerating the bus. But it appears that the accused driver of the bus has completely failed to observe the duty imposed upon him by law to be careful towards the passengers. This court cannot lost sight of the fact that there are many drivers of the buses who drives the vehicle in hurry with the simple motive of making more profit without caring for the lives of the passengers and other commuters drive there vehicle in a rash and negligent manner. There are galloping trend in road accidents in India. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. The testimony of the complainant implicating the accused has been unimpeached because the accused has not even cross examined the complainant in respect of his testimony. There is no reason to disbelieve that the accused in suddenly accelerating the bus without the complainant able to safely board it is rash and negligent act sufficient to convict the accused in the present case .
Now I come to the defences raised by counsel for accused Ms. Jyotsna Bhalla. Her first contention was that the injured had not mentioned the number of the bus by which the accused was caused and which was driving by the accused. I do not consider it a relevant ground to exonerate the accused or will allow the accused to take advantage of the fact. However, this contention also does not seems to be correct because State Vs. Bittu FIR no. 414/04 the injured has mentioned the number of the bus in his testimony. Although, in an answer to a leading question in this respect.
It is also argued that the accident did not occurred due to the fault of the accused. But this contention is also liable to be thrown out because the testimony of the complainant and the circumstances clearly suggests that culpability of the accused as discussed above.
The third contention is that except complainant, no public witness has been examined. To this, I would like to say that the complainant is himself a public witness and being an injured, his testimony is more reliable and trustworthy.
It is also argued that the statement of conductor has not been recorded. It is true that the conductor of the bus has not been examined but is is also not the case of the accused that he accelerated the bus after getting due signal from the conductor. Therefore, all the contentions raised by counsel for the accused are not tenable and are rejected.
Considering the overall circumstances of this case, the manner in which the accident occurred and the testimony of the complainant regarding the identity of the accused in the manner in which he accelerated the bus proves rash and negligent act on his part. The injured/complainant has suffered grievous injury as is clear from his MLC Ex.PW4/A shows the nature of injuries as grievous. However, the prosecution has not proved the XRay report of the injured. Therefore, it is not possible to convict the accused u/s 338 IPC. However, since the MLC has been proved as Ex.PW4/A and it is also proved by the testimony of the injured that he suffered injuries in that accident, there is no impediment in convicting the accused u/s 337 IPC. The same being permissible under section 222 of the Code of Criminal Procedure. Clause 2 of this section states that when a person is charged an offence and facts are proved which reduce it to minor offence , he may be convicted of the minor offence , State Vs. Bittu FIR no. 414/04 although he is not charged with it. Section 338 IPC is the extension of the offence under section 337 IPC.
Therefore, in view of aforesaid discussions, the accused is convicted of the offence u/s 279/337 IPC.
Announced in the open court (Samar Vishal)
on 12th July, 2012 Metropolitan Magistrate05,
South East, New Delhi
State Vs. Bittu FIR no. 414/04