Delhi District Court
State vs . Suresh Kumar Fir No: 98/2011 Ps New ... on 15 October, 2015
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (East),
KARKARDOOMA COURTS, DELHI.
(Judgement by Metropolitan Magistrate u/s 355 Cr.P.C)
Serial Number of the Case 429/2011/2013
UID No 02402R0282832011
FIR No 98/2011
Police Station New Ashok Nagar
Date of Commission of Offence 30.03.2011
Date of Institution 16.09.2011
Name of Complainant (if any) SI Avesh Kumar, PS NAN
Name of Accused Person and Suresh Kumar
his Parentage and Residence S/o Sh. Fakir Chand,
Village Dudwa,PS and Post Khetdi, District
Jhunjhun, Rajasthan.
Offence Complained of or 279/304-A IPC
Proved
Plea of accused and his Pleaded Not Guilty.
examination(if any)
Final Order Accused Acquitted
Date of such Order 15.10.2015.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
(A) The story of the prosecution is that on 30.03.2011 at 10:10 AM in front of D
Allegations
Block, New Kondli, Main Road, Delhi falling within the jurisdiction of Police
Station New Ashok Nagar, accused Suresh Kumar was driving Tavera
bearing number UP-16T-3605 at high speed and in a rash and negligent
manner and while driving the said vehicle in such a manner, he hit one boy
master Ayan who suffered injuries because of the accident, which ultimately
resulted into his death. Thus, accused Suresh Kumar is alleged to have
committed offence punishable under section 279/304-A IPC.
(B) On the basis of the said allegations and on complaint of complainant SI
FIR
Avesh Kumar an FIR bearing number 98/2011 under section 279/304-A IPC
was lodged at Police Station New Ashok Nagar on 30.03.2011.
(C) After investigation, challan under section 173 Cr .P.C was filed on
Charge-sheet
16.09.2011.
Accused appeared before the court and he was supplied the copy of charge
sheet as per section 207 Cr. P.C.
State Vs. Suresh Kumar FIR No: 98/2011 PS New Ashok Nagar Page No:1 of 10
(D) On the basis of the charge-sheet, a charge for the offence punishable under
Charge/
Notice section 279/304-A IPC was framed against accused Suresh Kumar read out
to the said accused, to which he pleaded not guilty and claimed trial on
16.09.2011.
(E) To bring home the guilt of rash and negligent driving to the accused, three
Legal
Requirement 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 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'."
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 " rashness " and " negligence "
State Vs. Suresh Kumar FIR No: 98/2011 PS New Ashok Nagar Page No:2 of 10
held as follows :
"18. Criminal rashness is doing a dangerous or wanton act with the knowl-
edge that it is so and may cause injury but without intention to cause injury
and without knowledge that injury would probably be caused. Therefore, to
incur criminal liability, the act must be done with rashness or indifference
as to the consequences. Criminal negligence is the gross and culpable ne-
glect or failure to exercise reasonable care and proper precaution impera-
tive to be adopted by a person to avoid causing of injury to the public or a
person or a individual."
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
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 wan-
ton 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
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 ei-
ther 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.
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 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 im-
putability arises from the negligence of the civic duty of
circumspection." (See In Re : Nidamorti Nagabhusanam 7 Mad. HCR
State Vs. Suresh Kumar FIR No: 98/2011 PS New Ashok Nagar Page No:3 of 10
119)".
(F) In order to prove the above said allegations, the prosecution has
Prosecution
Evidence examined 6 witnesses which are as under:
PW-1 Murtaza PW-1 is the father of deceased and PW-2 is the
&
cousin of deceased, who identified the dead
PW-2 Sabir Ali
body of deceased child at LBS Hospital.
Documents:
Ex. PW-1/A and Ex. PW 2/A: Dead Body
Identification Memos.
PW-3 Dharmender He is an eye witness to the accident as per the
Kumar
prosecution. He deposed that on the day of
incident i.e. he along with accused Suresh was
coming in the offending vehicle and when they
reached at New Kondli Red Light one child was
standing near the patri, who was already
injured. PW-3 with accused took the injured to
Metro Hospital. The doctor in the hospital said
that it is police case and thereafter he and
accused were taken to PS by the police and
some blank papers were got signed from them
at the PS.
This witness was cross examined by ld. APP for
the state as he was resiling from the statement
given by him, to police under section 161 of
Cr.P.C. on 31.03.2011.
The witness specifically denied the suggestion
as regards the culpability of the accused.1
No documents.
PW-4 Ct. Sanjay He got registered the FIR in the present case,
1 "It is wrong to suggest that on 30/3/11 accused Suresh while driving the Tavera Car No.UP16T 3605 in
a rash and negligent manner hit one child (confronted with the portion from portion A to A1) in statement
Mark DX."
State Vs. Suresh Kumar FIR No: 98/2011 PS New Ashok Nagar Page No:4 of 10
after receiving rukka from the IO and the
offending vehicle was also seized in his
presence.
Document.
Ex. PW 4/A Seizure memo of offending
vehicle.
PW-5 Ct. Ashok He went at the spot with ASI Rishipal after
Kumar
receiving the call of accident. This witness was
also cross examined by ld. APP for the state.
Documents:
EX.PW 5/A Arrest memo of accused.
Ex. PW 5/C Seizure memo of DL of accused.
Ex. PW 5/D Seizure memo of documents of
offending vehicle.
PW-6 Moher Singh He is another eye witness of the accident.
He deposed that on 30.03.2011 at about 10 AM
he saw that one Tavera bearing number UP16T
3650 of white colour was being driven by its
driver in a very rash and negligent manner and
it hit a child was crossing the road. The driver of
the Tavera car took the injured to hospital and
he called at 100 number and left the spot for his
office. The witness correctly identified the
vehicle, but, failed to identify the accused in his
examination in chief and even in his cross
examination by the Ld APP for the state in this
regard he failed to identify the accused as the
culprit driver.
Documents
State Vs. Suresh Kumar FIR No: 98/2011 PS New Ashok Nagar Page No:5 of 10
Ex.P2 to P5 Photographs of vehicles.
(G) Judicial After the examination of the two eye witnesses cited by the prosecution ,
Resolution
the court vide order dated 13.10.2015, listed the present case for
15.10.2015 (today) for consideration, as both the eye witnesses failed to
support the story of the prosecution and from their testimony the
prosecution was not able to prove the ingredients of the offences with which
the accused has been charged.
PW-3 Dharmender Kumar has completely turned hostile and has not stated
anything about the accident. Rather, as per him the child was found injured
by him and the accused and they out of humanity helped the child by taking
him to hospital, from where the police took them to Police Station and
falsely implicated the accused.
The only other eyewitness PW-6 Sh. Moher Singh has also not supported
the prosecution story, as far as it relates to the identity of the accused as
the driver of the offending vehicle at the time of accident. The said witness
has not identified the accused as a driver of offending vehicle.
Even otherwise the said witness has not stated that as to how was the
driver of the offending vehicle negligent and rash in his driving the vehicle.
He has merely deposed that the driver was driving the vehicle rashly and
negligently, but he has not stated that as to how and in what manner was
the vehicle being driven in a rash and negligent manner.
Honorable Apex Court in judgment titled State of Karnataka v. Satish,
(1998) 8 SCC 493 at page 494 held as under:
"4. Merely because the truck was being driven at a "high speed" does not bespeak
of either "negligence" or "rashness" by itself. None of the witnesses examined by
the prosecution could give any indication, even approximately, as to what they
meant by "high speed". "High speed" is a relative term. It was for the prosecution to
bring on record material to establish as to what it meant by "high speed" in the facts
and circumstances of the case. In a criminal trial, the burden of providing
everything essential to the establishment of the charge against an accused
always rests on the prosecution and there is a presumption of innocence in
favour of the accused until the contrary is proved. Criminality is not to be
presumed, subject of course to some statutory exceptions. There is no such
statutory exception pleaded in the present case. In the absence of any
material on the record, no presumption of "rashness" or "negligence" could
be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show
State Vs. Suresh Kumar FIR No: 98/2011 PS New Ashok Nagar Page No:6 of 10
that immediately before the truck turned turtle, there was a big jerk. It is not
explained as to whether the jerk was because of the uneven road or mechanical
failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his
report. That report is not forthcoming from the record and the Inspector was not
examined for reasons best known to the prosecution. This is a serious infirmity and
lacuna in the prosecution case."
As said in the aforesaid judgment criminality is not to be presumed. In the
absence of any material on the record, no presumption of "rashness" or
"negligence" could be drawn by invoking the maxim "res ipsa loquitur".
Merely because this witness has testified that the driver of the offending
Tavera was driving rashly and negligently, doesnot make the driver guilty for
offence under section 279 and 304A IPC. The witness has to explain as to
in what manner the driver was driving the vehicle and it is for the court to
decide as to whether the manner of driving was such that it falls within the
ambit of words rash and negligent, in the sense in which they are used in
section 279 and 304A IPC.
This witness has not stated in his examination in chief that the vehicle was
being driven at high speed, though the said fact is mentioned in his
statement under section 161 Cr.P.C and in absence of testimony regarding
the aforesaid fact, it cannot be presumed by the court that the accused was
driving the vehicle in a rash and negligent manner. Moreover, merely stating
that the vehicle was being driven at high speed also does not prove rash
and negligence on the part of the driver. The said observation has been
made by Honorable Supreme Court in the aforesaid judgment.2
In another judgment titled Mohanta Lal Saha v. State Of West Bengal,
1968 ACJ 124, Honorable Apex Court3 observed in this regard as
under:
"4. ..... Further, no attempt was made to find out what this witness understood by high
speed. To one man a speed of even 10 or 20 miles per hour may appear to be
high, while to another even a speed of 25 or 30 miles per hour may appear to be
reasonable speed. On the evidence in this case, therefore, it could not be held
that the appellant was driving the bus at a speed which would justify holding
that he was driving the bus rashly and negligently. The evidence of the two
conductors indicates that he tried to stop the bus by applying the brakes; yet, Gopinath
Dey was struck by the bus, though not from the front side of the bus as he did not fall
in front of the bus but fell sideways near the corner of the two roads. It is quite possible
that he carelessly tried to run across the road, dashed into the bus and was thrown
back by the moving bus, with the result that he received the injuries that resulted in his
death."
Hence, the said witness not only failed to identify the accused as culprit,
2 State of Karnataka v. Satish, (1998) 8 SCC 493
3 Three Judges Bench.
State Vs. Suresh Kumar FIR No: 98/2011 PS New Ashok Nagar Page No:7 of 10
rather, he also failed to prove through his testimony that the accused was
driving the vehicle in a rash and negligent manner.
Besides the said two eye witness4, no other witness can identify the
accused as the driver of the offending vehicle and no other witness can
prove that the vehcile was being driven in a rash and negligent manner. All
the other witnesses are formal witnesses and are not witnesses to the
offence of rash and negligent driving.
In view of the testimony of two eye witness cited by the
prosecution and examined as PW-3 and 6, the testimony of all the
remaining witnesses together is insufficient to prove the allegations against
the accused qua offences u/s 279/304-A IPC.
The case is at the stage of PE, however, in view of the
testimony of two eye witness (PW-3 and 6), there is nothing incriminating
against the accused for proceeding further and recording the statement of
remaining formal witnesses would be futile and wastage of judicial time,
resources and money.
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 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.
......
(5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A 4 PW-3 Dharmender Kumar and PW-6 Moher Singh State Vs. Suresh Kumar FIR No: 98/2011 PS New Ashok Nagar Page No:8 of 10 watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. ..." (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:
"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. .."
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 qua offences u/s 279/304-A IPC 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 to have speedy justice invokes the power conferred upon it under S.258 of Cr.P.C to stop the proceedings against the accused Suresh Kumar qua offences u/s 279/304- A IPC in the present summons police case and hereby releases accused Suresh Kumar under sections 279/304-A IPC, which shall have the effect of acquittal5.
As per section 437-A of the Cr. P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, accused is directed to file fresh personal bond and surety bond in like amount in sum of Rs. 10,000/- within a week from today which shall remain intact for a period of six months.
File be consigned to Record Room after necessary compliance.
Announced in open court on: 15.10.2015 (SAURABH PARTAP SINGH LALER) ACMM(East District) Date:15.10.2015 Certified that this judgment contains 10 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) ACMM(East District) Date:15.10.2015 5 As all the eye witnesses have been examined in the present case. State Vs. Suresh Kumar FIR No: 98/2011 PS New Ashok Nagar Page No:9 of 10 State Vs. Suresh Kumar FIR No: 98/2011 PS New Ashok Nagar Page No:10 of 10