Delhi District Court
State vs . Manoj Kumar on 29 May, 2019
STATE VS. MANOJ KUMAR
IN THE COURT OF SH. VIJAY KUMAR JHA, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SHAHDARA), KKD COURTS DELHI.
FIR No.121/2006
PS : Anand Vihar
U/S 279/304 A IPC
State vs. Manoj Kumar
a) ID No. of the case : 78698/2016
b) Date of Institution : 01.06.2006
c) Date of commission of offence : 02.03.2006
d) Name of complainant : HC Anirudh Singh
e) Name of the accused, and : Manoj Kumar
parentage and address S/o Sh. Rajender Singh
R/o Village Ahladpur,
PS - Kaham, Distt.
Mainpuri, U.P.
f) Offence complained of : U/S 279/304 A IPC
g) Plea of the accused : Pleaded not guilty
h) Date of judgment reserved : 29.05.2019
i) Final order : Acquittal
j) Date of such Order : 29.05.2019
JUDGEMENT
1. The case of the prosecution is with respect to fatal road accident in which one Shri Jasbir Singh had lost his life. The case FIR was lodged on the basis of the written complaint dated March 6, 2006 of the complainant Head Constable Anirudh in which it was stated FIR NO.121/2006, PS Anand Vihar Page 1/11 STATE VS. MANOJ KUMAR that on the said date the complainant was posted on patrolling duty at entry gate ISBT at about 9:30 PM one bus bearing registration no. UP84C9276 belonging to Mainpuri bus depot which was being driven by its driver rashly and negligently and at high speed from the side of Maharaj Pur red light struck a cycle rider who was coming from Gazipur side at ISBT in gate. After the accident the bus driver of the said bus absconded from the spot. Some person informed on telephone and of vehicle of CAT no. ALFA10 came at the spot and and then charge of the said CAT vehicle namely Shri Vasudev Singh checked declared the injured from whose ear and mouth blood was a oozing out as dead and refused to take the deceased to the hospital.
2. On the complaint of the complainant the case FIR was lodge under section 279/304A of Indian Penal Code and the investigation in to the case was commenced. After completion of the investigation the charge sheet was filed under the afroresaid sections of Indian Penal Code.
3. Vide order dated January 15, 2008 notice under section 251 of Code of Criminal Procedure was served upon the accused for committing the offences falling under sections 279/304A of Indian Penal Code. The accused pleaded not guilty and claimed trial. At the stage of taking notice under section 251 of Code of Criminal FIR NO.121/2006, PS Anand Vihar Page 2/11 STATE VS. MANOJ KUMAR Procedure the accused admitted certain documents of the prosecution like the FIR, PM report, notice under section 133 of MV Act; reply to the said notice. The accused also admitted for not producing the offending bus.
4. In order to prove the charges against the accused the prosecution has examined the following witnesses: i. Shri Rakesh Kumar and PW1 who was the relative the of the deceased Jasbir Singh and identified his dead body.
ii. ASI Rambir Singh as PW2 who on March 2, 2006 after the receipt of DD no. 20 had reached at the spot of the accident where PW2 found head Constable Anirudh. It was PW2 who had recorded the statement of head Constable Anirudh on the basis of which the case FIR was registered and the preliminary investigation after the registration of case FIR was done by PW2.
iii. Constable Asif Ali as PW3 who on the date of the incident was posted at the police picket ISBT Anand Vihar as a constable and after receipt of the information about the accident had along with the initial investigating officer; PW2 had went at the spot. iv. ASI Anirudh as PW4 who was the complainant on the basis of whose complaint the case FIR was registered. PW4 is the sole eyewitness of the prosecution. Inadvertently ASI Anirudh has also been examined as PW6 on December 22, 2017 after the examination in chief which was recorded on September 8, 2017 was deferred.
v. Retired inspector V.K. Sharma as PW5 was the second investigating officer who after the completion of the investigation had filed the FIR NO.121/2006, PS Anand Vihar Page 3/11 STATE VS. MANOJ KUMAR chargesheet.
5. After all the witnesses of the prosecution were examined the statement of the accused was recorded under section 313 of Code of Criminal Procedure. All the incriminating facts which had come in the deposition of the witnesses of the prosecution were put to the accused and the accused was asked for his explanation. The accused denied all the incriminating facts and stated that the accused is innocent. The accused further stated that the accused was asked to collect the bus with which the accident had been caused from the police station by the depot manager of Mainpuri and it was with him that the accused had come to Delhi where the accused was falsely implicated in the present case after two days of the incident. The accused also stated that the accused was not on the duty on the date of the incident and that on longer route that is the route involving more than 140 km to drivers remain on duty and that the accident was not caused by the accused. However, on behalf of the accused no witness in his defense has been examined.
6. I have heard the arguments and perused the record.
7. One of the offenses with which the accused is charged with is that on March 2, 2006 at about 9:30 PM at ISBT in gate, Maharaj Pur the accused was driving the offending bus number UP84C9276 in a rash and negligent manner because of which death of one Shri Jasbir Singh was caused and thereby the accused committed the FIR NO.121/2006, PS Anand Vihar Page 4/11 STATE VS. MANOJ KUMAR offense falling under section 304A of Indian Penal Code.
8. The gravamen of allegation under section 304A of Indian Penal Code is in the rashness or negligence in driving a vehicle. In other words doing of a rash or negligent act, which causes death, is the essence of section 304 Indian Penal Code. Under section 32, Indian Penal Code, the act includes 'illegal omission'. Therefore, if an illegal omission occurs as a result of negligence, which results in death, then this section will apply.
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 FIR NO.121/2006, PS Anand Vihar Page 5/11 STATE VS. MANOJ KUMAR 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 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 FIR NO.121/2006, PS Anand Vihar Page 6/11 STATE VS. MANOJ KUMAR 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 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 analysed in order to find out if the offending bus which the accused was driving with which the accident happened and the victim died FIR NO.121/2006, PS Anand Vihar Page 7/11 STATE VS. MANOJ KUMAR 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 ASI Anirudh; PW4 (also examined as PW6) who as per the case of the prosecution had seen the accident, the precise manner in which the deceased Shri Jasbir Singh had lost his life by the offending bus which was being driven by the accused as per the complaint Ex. PW2/B at high speed, rashly and negligently. The exact manner in which PW4 has deposed is that, "At about 09:30 PM, one bus bearing no. UP 84C9276 of Main puri depot was coming from the side of Mohan Nagar UP and driver of said bus was driving it a very high speed and also rashly and negligently and while driving so after crossing the Maba[ajpur red light, he hit a cyclist who was coming from the side of Gazipur in front of in gate of ISBT".
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 bus 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. The Hon. Supreme Court in State of Karnataka v.
FIR NO.121/2006, PS Anand Vihar Page 8/11STATE VS. MANOJ KUMAR Satish, 1998 SCC (Crl.) 1508 has observed that driving at a high speed 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. PW4, neither in his complaint exhibit PW2/B nor in his examination in chief stated that if the accused was driving the offending bus at a highspeed what actually was the speed of the bus. In the absense of the exact (or even approximate) speed of the offending Bus the conclusion of PW4 that the offending Bus was being driven at high speed cannot be accepted by the court the corollory of which is that it cannot be held that the accused was either rash or negligent because the accused was driving the offending Bus at high speed.
17.From the deposition of PW4 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 Bus 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 FIR NO.121/2006, PS Anand Vihar Page 9/11 STATE VS. MANOJ KUMAR 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 like in the present case driving the offending vehicle with which the fatal accident had occurred.
18.The Ld. Addl. PP for the State argued that the accused was rash and negligent because the accused jumped the red light and struck the deceased who was driving the bycycle causing the death of the decased. After taking into consideration the original complaint Ex. PW2/B and the deposotion of PW6 it is not clear that the accident was caused because of the fact that the accused had 'jumped' the red light but it appears that the accident was caused after crossing of Maharaj Pur red light. The reference of red light in Ex. PW2/B and in the deposition of PW4 is to fix the place where the accident had happened.
19.After considering the entire deposition of PW4 who is the sole eyewitness of the prosecution the court is of the opinion that the prosecution, on the basis of deposition of PW4 could not prove that the accused was in fact driving the offending bus rashly or negligently which was the reason of causing of accident in which to persons on a motorcycle met with an accident and expired FIR NO.121/2006, PS Anand Vihar Page 10/11 STATE VS. MANOJ KUMAR subsequently. Accordingly, the charge under section 304A of Indian Penal Code against the accused has to fail.
20. It may also be noted that along offence under section 304A of Indian Penal Code, the accused has also been charged with the commission of offence under section 279 of Indian Penal Code of which the necessary ingredients are the same as that of section 304A of Indian Penal code i.e. the rashness and negligence of the accused in driving the offending bus. When the charge under section 304 of Indian Penal Code has failed, the necessary corollary of the same is that the charge under section 279 of Indian Penal Code also has to fail. Accordingly, the accused is hereby Digitally signed acquitted of the offences as charged. VIJAY by VIJAY KUMAR JHA KUMAR Date:
2019.06.07 JHA 16:01:29 +0530 Dictated & Announced in the Open Court (VIJAY KUMAR JHA) on 29.05.2019 Additional Chief Metropolitan Magistrate Shahdara Distt., KKD Courts, Delhi FIR NO.121/2006, PS Anand Vihar Page 11/11