Delhi District Court
State vs . Sanjay Parashar on 6 June, 2011
IN THE COURT OF SH. SAURABH PRATAP SINGH LALER
METROPOLITAN MAGISTRATE-06 (East), KARKARDOOMA
COURTS, DELHI.
FIR NO. 792/05
PS: Preet Vihar
Offence complained of : 279/304 A IPC
Date of commission of offence :23.10.2005
Unique Case ID No. : 02402R0200482006
STATE Vs. Sanjay Parashar
S/o Sh. Shiv Dutt Sharma
R/o H. No. K-1/3, Main Gamri Road,
Ghonda, Delhi. ............ Accused
Sh. Rajesh Kumar S/o Sh. Dwarika Prasad
R/o Village Mansoor Pur, PS-Arawal, Distt. Hardoi,
U.P., also at Baba ka makan, Gali No. 6, Brahampuri Main Road,
Delhi. ............. Complainant
Date of Institution : 07.04.2006
Plea of accused : Pleaded not guilty.
Date of reserving judgment/ order : 26.04.2011
Date of pronouncement: 06.06.2011
Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
ALLEGATIONS
The story of the prosecution is that on 23.10.2005 at
about 7:30 AM at Road No. 57, Karkari turn fly over, Delhi, falling
within the jurisdiction of Police Station Preet Vihar, the accused
Sanjay Parashar was driving a Wagon R Car bearing number DL-
2CZ-7599 in a rash and negligent manner and while driving the said
FIR No. 792/05 Page No. 1 / 14
vehicle in such a manner, the accused struck against hand-cart
(REHRI) of Ram Sanjeewan, because of which Ram Sanjeewan
received injuries which ultimately resulted into his death.
FIR
On the basis of the said allegations and on the complaint
of the complainant Rajesh Kumar, an FIR bearing number 792/05
under section 279/304 A IPC was lodged at Police Station Preet Vihar
on 23.10.2005.
CHARGE
After investigation, charge-sheet under section 173
Cr.P.C was filed on 07.04.2006.
The accused was summoned to face trial and he was
supplied the copy of charge sheet as per section 207 Cr.P.C.
On the basis of the charge-sheet, a notice for the offence
punishable under section 279/304 A IPC was framed against the
accused Sanjay Parashar and read out to the said accused person, to
which the accused person pleaded not guilty and claimed trial on
26.02.2007.
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 FIR No. 792/05 Page No. 2 / 14 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 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'."FIR No. 792/05 Page No. 3 / 14
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. 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 " rash- ness " and " negligence " 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 in- jury and without knowledge that injury would probably be caused. Therefore, to incur criminal li- ability, the act must be done with rashness or in- difference as to the consequences. Criminal negli- gence 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 in- dividual."
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 304-A of IPC. Quoting from Rathnashalvan v. State of Karnataka, (SC) 2007 A.I.R. (SC) 1064.
"Section 304-A 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 304-A. Culpable FIR No. 792/05 Page No. 4 / 14 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 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 reck- lessness 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 ac- cused 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 FIR No. 792/05 Page No. 5 / 14 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)".
In order to prove the above said allegations, the prosecution cited 11 witnesses, of which the complainant and the sole eye witness is Rajesh Kumar. The said witness has been examined as PW-2.
The said witness in his examination-in-chief deposed that at the time of accident he was coming from Sabzi Mandi, Ghazipur and carrying vegetables in cycle rickshaw and deceased Ram Sanjeevan was also carrying vegetables in cycle rickshaw who was 100 meters behind him and when he reached Preet Vihar Fly over, one motorcycle rider informed him that there was an accident of a vegetable vendor. On hearing he reached the spot and found that Ram Sanjeevan was injured and someone took Ram Sanjeevan to hospital.
The witness was cross examined at length by Ld. APP for the state with the permission of court, however, he denied various suggestions given by Ld. APP with respect to the complaint made by FIR No. 792/05 Page No. 6 / 14 him. The witness denied that the complaint dated 23.10.05 was made by him and when the attention of the witness was drawn towards the accused, he stated that he had never seen the accused Sanjay Parashar.
Thus, the said witness failed to support the story of the prosecution, rather, he failed to prove the complaint itself on the basis of which present FIR was recorded and investigation was initiated.
In view of the clear statement of complainant that he has never seen the accused Sanjay Parashar before and that the witness has seen the accused for the first time in court on 06.04.2011 and further that he is not aware as to how the accident took place, nothing incriminating is left against the accused.
Besides this witness, one other witness has been examined by the prosecution i.e, PW-1 Yogesh Kumar Sharma (Superdar) who is the owner of offending vehicle i.e., Maruti Wagon R Car bearing No. DL-2CZ-7599 and the same was taken by him on superdari vide superdarinama Ex. PW-1/A. The remaining witnesses who are yet to be examined by the prosecution are all formal witnesses. None of the remaining witnesses is an eye witness to the accident. The remaining two public witnesses namely Phool Chand and Rampal are not the witnesses to the accident, they are merely with respect to dead body identification.
In the present case there is only one eye witness namely PW 2 Sh. Rajesh Kumar, who has not supported the story of the prosecution by stating that he has never seen the accused Sanjay Parashar and even he has not seen the accident taking place. No other witness is competent enough to prove the guilt of the accused.
FIR No. 792/05 Page No. 7 / 14The prosecution, through the oral testimony of the sole eye witness PW-2 failed to bring forth oral evidence to prove that the accident was caused by the vehicle bearing number DL-2CZ-7599, which was being driven by the accused Sanjay Parashar, that too in a rash and negligent manner.
In the light of his testimony, the testimony of all the remaining witnesses together is insufficient to prove the allegations against the accused.
In the opinion of the court, the present case is a fit case where the court should exercise its power under section 258 of Cr.P.C and stop the proceedings as continuing with trial will not only be wastage of state money rather it will also be wastage of judicial time and harassment to the accused.
In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to FIR No. 792/05 Page No. 8 / 14 postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation-2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. Section 258, in Chapter XX of Cr.P.C., on Trial Summons - cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to FIR No. 792/05 Page No. 9 / 14 oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) "30.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 :
1998 Cri LJ 4596) and Raj Deo Sharma (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:-
(1) The dictum in A.R. Antulay's case is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, FIR No. 792/05 Page No. 10 / 14 adequately take care of right to speedy trial. We uphold and re-affirm the said propositions. (3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings.
The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Case (I) and (II) . At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused.
(5) The Criminal Courts should exercise their available powers, such as those under Sections FIR No. 792/05 Page No. 11 / 14 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary
- quantitatively and qualitatively - by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied) In "Pankaj Kumar v. State of Maharashtra" AIR 2008 SUPREME COURT 3077 (Coram : 2 C. K. THAKKER AND D. K. JAIN, JJ.)the Honorable Supreme Court, while relying upon the aforesaid judgment, observed:
"16. Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" A Registered Society Vs. Union of India (UOI) and Ors., "Common Cause", A Registered Society Vs. Union of India and Ors., Raj Deo Sharma Vs. State of Bihar and Raj Deo Sharma II Vs. State of Bihar gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a seven- Judge Bench of this court in P. Ramachandra Rao Vs. State of Karnataka. Speaking for the majority, FIR No. 792/05 Page No. 12 / 14 R.C. Lahoti, J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative.
They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the factsituation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgments were held to be not in consonance with the legislative intent." (emphasis supplied) Accordingly, in the opinion of the court, in the light of the above cited judgments, the court needs to exercise its power under section 258 Cr.P.C to make the ends of justice meet.
Final Order In the light of the aforesaid discussion and cited judgments, the court while protecting the right of the accused person FIR No. 792/05 Page No. 13 / 14 to have speedy justice invokes the power conferred upon it under s.258 of Cr.P.C to stop the proceedings against the accused person Sanjay Parashar in the present summons police case and hereby releases the accused Sanjay Parashar, which shall have the effect of acquittal as there is nothing incriminating against the accused on record.
As per section 437-A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 06.06.2011.
(SAURABH PARTAP SINGH LALER) MM-06(East)/ KKD/ 06.06.2011 Certified that this judgment contains 14 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) MM-06(East)/ KKD/ 06.06.2011 FIR No. 792/05 Page No. 14 / 14