Delhi District Court
3.Titlc State vs . Gajjan Khan on 6 April, 2023
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, THE COURT OF SHRI RUPINDER SINGH DHIMAN
~ETROPOLITAN MAGISTRATE-01, NORTH EAST DISTRICT.
,\ KARKARDOOMA COURTS. DELHI .
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1. FlR No . 380/2004, PS Bhajanpura
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2. Uni rn 10 c .. c~ ·~
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464156/2015
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3.Titlc State Vs. Gajjan Khan
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3(A).Name of complainant Sh. Pradeep Singh t
' S/o Kumar Singh Rawat
Rio H. No. E-8/412, Gali no. 8, 33 Futa II
Road, Nehru Vihar, Delhi.
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3( B).Name of accused Gajjan Khan
S/o Sh. Majjan Khan /
Rio H. no. B/140, Gali no. 1, near Delhi I
Jyoti Public School, Shani Bazar Road, ,
Kabir Nagar, Delhi.
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4.Date of institution of 16.12.2004 I
chargeshcct
5.Datc of Reserving judgment 24.03.2023
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6.Datc of pronouncement 06.04.2023
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7.Date of commission of offence 22.09.2004
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8.Offence complained of U/s 279/337 IPC I
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9.Offence charged with U/s 279/304 A IPC and 3/181 M. V. Act. ,
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to. Plea of the accused Pleaded not guilty.
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11. Final order Convicted
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I 12. Date of receiving of judicial 16.12.2004 I
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file in this court - -- - --- -- - -
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Argued by :- 1. Sh. Ravinder Singh, Ld. Sub. APP for the State.
2. Sh. T. A. Khan, Ld. Counsel for accused.
JUDGMENT
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1. The present prosecution case was put into action with the complaint of the complainant, Pradeep Singh stating that on 22.09.2004, at about 12.30 a.m., r::s near C-12 Yamuna V1har, 66 futa Road, when he was gomg on his motorcycle Slale Vs. Gajjan Khan Page 1 of 24 FIR No. Bhaj bearing no. DL 7SZ 9128 Hero Honda alongwith his friend Umesh sitting as pillion rider, his bike was hit by TSR bearing no. DL lRG 9966 which was being driven in rash_ and negligent manner, causing his bike to slip and thereby resulting in injury to him and pillion rider Umesh. On the basis of the II -
cdiill)idhll.,-:JR bearing no. 380/2004, PS Bhajanpura was registered u/s 279/337 lPC. Accused was apprehended at the spot. Thereafter during investigation, it was found that accused was not having a valid driving license. further, pillion rider Umesh subsequently succumbed due to injury suffered. 1-lcncc, after completion of investigation, chargesheet was filed under Section 279/337/304 A lPC & 3/181 M.V. A ct
2. On 16.12.2004, cognizance was taken and accused Gajjan Khan was summoned in the present matter. Thereafter, vide order dt. 16.07.2007, charge was framed against the accused for offences under Section 279 IPC, 304A IPC and 3/181 M. V. Act to which, accused pleaded not guilty and claimed trial. Matter was listed for prosecution evidence.
3. Prosecution had named 13 witnesses in total. However, accused did not dispute the genuineness of MLCs dt. 22.04.2004 of the injured Umesh and Pradeep. The same was Ex. PXl and PX2 respectively. Further accused also did not dispute the postmortem report of Umesh which was exhibited as PX3, death summary report which was Ex. PX4. He also did not dispute the dead body identification memos which were Ex. PXS and Ex. PX6 respectively. He also did not dispute the mechanical inspection report and the same was Ex. PX7. Jlence, in view of statement of accused under Section 294 of Cr. PC, PW Manohar Lal, Haram Singh, Lekh Pal, Dr. Yogesh, Dr. T. Gupta, Dr. Masrur /\lam, Dr. Sumit Talwar were dropped. Accused also did not dispute the iclcnl ity of the case property i.e. the vehicles in question. Hence, MHC(M) was also dropped in view of statement of accused made on 03.09.2015. Only 5 Stute Vs. Gajjan Khan Page 2 of 24 wiLnesses were therefore examined by the prosecution.
4. AS\ Ram Gopal was examined as PW 1. He is the Duty Officer and has deposed that on the intervening night of 21/22.09.2004, he received rukka n IJ u-11·8JQ1i &Ii- vijay Bahadur on the basis of which, he registered the FIR which was Ex. PWl/A. He further stated that he made endorsement on the rukka whi ch is Ex. PWl/B. He was not cross examined by the Ld. Counsel for the accused despite opportunity being given.
5. Pradecp was examined as PW 2. He is the complainant in the present matter.
He has deposed that on 22 nd of a particular month (he could not recall the exact month) in the year 2004, while he was going on his motorcycle bearing registration no. DL 7SZ 9128 alongwith his friend Umesh, sitting as pillion rider, one TS R came from behind without looking left side and without giving i.111 Y indicator hit his bike. Due to the same, his bike fell down and his friend sustained injuries. The driver of the said TSR was apprehended at the spot by him and his friend Umesh. Thereafter, making call at 100 number, police arrived and recorded his statement Ex. PW2/A. Then, a PCR took them to the hospital. After 3-4 days of the incident, his friend Umesh expired due to injury sustained in the accident. He correctly identified the accused, present in the court as the TSR driver. (Production of motorcycle bearing no. DL 7SZ 9128 and offending TSR DL lRG 9966 was dispensed with as the accused did not dispute the identity of the vehicles and gave a separate statement in this regard) He further deposed that police seized his motorcycle bearing no. DL 7SZ 9128 vide seizure memo Ex. PW2/B bearing his signature at point A and TSR bearing no. DL lRG 9966 vide seizure memo Ex. PW2/E bearing his signature at point A. He further stated that the documents of the TSR were se ized vide seizure memo Ex. PW2/C and accused was arrested vide arrest memo Ex. PW2/F bearing his signature at point A. In his cross examination, he State Vs. Gajjan Khan Page 3 of 24 FIR No. 3Bv •janpum staled that he did not note down the number of offending vehkle and was inform ed aholll the number of the offending vehicle by the police officials. He a lso Sli.llcd that the number of the offending vehicle was written in his original co 11111taint Ex. PW2/A at the instance of police officials. He denied the I I .fo [email protected]!61#.wt he is deposing falsely.
6'. Sl Mahender Pal was examined as PW 3. He has deposed that on the date of incident, he was posted on emergency duty. At about 12.45 a.m. he received DD no. 36 A regarding an accident and thereafter he along with Ct.Bahadur reached the spot i.e. C-12, 66 futa road, opposite Yamuna Vihar, Delhi where he found one TSR bearing no. DL lRG 9966 and one motorcycle Hero Honda bearing no. DL 7SZ 9128 in an accidental condition. Accused Gajjan Khan was present along with the said TSR. Injured persons had already taken to GTB hospital and hence, he left Ct.Bahadur at the spot and proceeded to GTB hospital. He further stated the he subsequently collected the MLC of injured persons namely, Umesh and Pradeep and recorded statement of injured Pradeep which is already Ex. PW2/A. Then, he prepared rukka and came back to the spot with the injured Pradeep and handed over the same to Ct.Bahadur. He then prepared the site plan Ex. PW3/A at the instance of complainant and in the meantime, Ct.Bahadur came back to spot with original rukka and copy of FIR. He then arrested accused Gajjan Khan at the instance of complainant Ex. PW2/F. Offending vehicle i.e. TSR bearing no. DL lRG 9966 was seized and accused only produced RC, Insurance of the vehicle which was seized vide seizure memo Ex. PW2/C. The motorcycle was also seized. As the offence was bailable in nature, accused Gajjan Khan was admitted on bail vide bail bond Ex. PW3/B. The case property was deposited in the malkhana. He further deposed that subsequently, on 25.09.2004, he received information from Trauma Centre vide DD no. 78 B that injured Umesh has expired and he thereafter, went to the said Trauma Centre, where he recorded the statement of Stale Vs. Gajjan Khan Page4 of 24 FIR No. v hojanpura .- 1 ft ....
Lhe relatives regarding the identification of deceased Umesh which is Ex. PW3/C and Ex. PW3/D. Vide request form Ex. PW3/E, Post morterm of deceased Umesh was got done. Thereafter, he got mechanical inspection conducted of offending vehicle i.e. TSR no. DL lRG 9966 vide request form Fi Jillt nd of motorcycle bearing no. DL 7SZ 9128 vide reques form Ex. • -, 17 PW3/G. He thereafter, recorded the statement of prosecution witnesses under Section 161 Cr. PC and after completion of investigation, filed the chargesheet. He correctly identified the accused in the court. (Production of offending vehicle i.e. TSR bearing no. DL lRG 9966 and motorcycle bearing no. DL 7SZ 9128 was dispensed with as the accused was not disputing the identity of the same.) In his cross examination, he stated that he reached the spot at around 12.55 a.m. along with Ct.Bahadur. He stated that he left the PS immediately after receiving the DD entry at around 12.45 a.m. He stated that motorcycle of the injured was lying in a damaged condition on the road while Jccused Gajjan Khan was standing with the offending vehicle. He admitted that the accused had not attempted to flee from the spot. He stated that no eye witness was found at the spot though he had requested the passers by to join lhe investigation. He admitted that no blood marks were found at the spot. He further stated that statement of the complainant Pradeep was recorded at GTB hospital at about 01.30 a.m. He denied the suggestion that complainant Pradeep was riding his motorcycle at a high speed and accused has been falsely implicated in the present matter.
7. J\Sl Vijay was examined as PW 4. He has deposed that 22.09.2004 at about ] 2-40 a.m., he received a call about accident of vehicles at Road no. 66, Yamuna Vihar. Therefore, he reached the spot and found that an accident of TSI< and motorcycle had taken place. He found two injured persons at the spot and LOok them to the GTB hospital. Thereafter, he returned to the place of accident where the IO recorded his statement. (Identity of the vehicles and State Vs. Gajjan Khan Page 5 of 24 FIR Nov ps Bhajanpu,a medical documents of the injured were not disputed by the accused.) In his cross examination, he stated that he does not remember the entry number in the log book of PCR Van. He further conceded that he does not remember the exact time when he reached at the place of accident. He also admitted that 2 ) ?i ac)~ fo@I it 9 not take place in his presence. He also stated that the place of accident is busy road.
8. HC Bahadur was examined as PW 5. He has deposed that on 22.09.2004 vide DD no. 36 A, investigation of the present matter was marked to the IO. Thereafter he alongwith IO reached at the spot i.e. C-12, Yamuna Vihar, 66 futa road, Delhi where he found motorcycle bearing no. DL 7SZ 9128 and TSR bearing no. DL. ... 9966 (he could not recall the exact number) in an accident condition. (Identity of the case property i.e. motorcycle as well as TSR were not disputed by the accused vide his statement dt. 03.09.2015.) The driver of the TSR Gajjan Khan was present at the spot. He correctly identified the accused present in the Court. Thereafter he stated that on inquiry, it was found that the injured had already been taken to GTB hospital. Hence, he remained at the spot and IO proceeded to GTB hospital. After about 1 hour, IO and Pradeep Singh Rawat came back to the spot. Pradeep identified the accused Gajjan Khan at the spot and stated that accused Gajjan Khan had caused the accident. IO thereafter, prepared the rukka on the statement of Pradeep Singh and handed over to him for getting the case registered. Thereafter, he went to PS Bhajanpura and came back to spot after getting the case registered. He further deposed that IO then arrested the accused, personally searched the accused, seized the motorcycle and TSR. Thereafter they reached at the PS and deposited the case property in the malkhana. IO then recorded his statement and he was relieved. In his cross examination, he stated that DD entry was received at around 12.30 a.m. and reached the spot with the IO within 10-15 minutes. l-le could not recall if the site plan was prepared in his presence or Stale Vs. Gajjan J(han Page 6 of 24 FIR No. 2004 SB ura not though he stated that the statement of complainant was recorded in his presence. He conceded that he did not inspect the TSR and whether it was dt1111t1ged from anywhere or not. He denied the suggestion that no accident had taken place and therefore, he cannot tell the condition of the said TSR. He mr k:Acept the motorcycle and the TSR, no other articles/object was rrm st1e81!1k@ seized from the spot. He denied the suggestion that he was deposing falsely at the instance of the IO.
9. Prosecution evidence was thereafter closed and statement of accused under Section 313 Cr. PC r/w Section 281 Cr. PC was recorded on 27.02.2023. Accused stated that he had been falsely implicated and it was the bike of the complainant which hit the auto from behind. He also stated that he had a valid driving license and badge. He also stated that he was going for getting the CNG filled and it was Pradeep/complainant who caused the accident. No defence evidence was proposed to be led. Hence, matter was listed for final arguments.
10. I have heard the submissions of both the parties and perused the material on record. The ld. APP for State argued that the testimony of the witnesses is consistent and corroborated each other and thus proved guilt of the accused persons beyond reasonable doubt. Per contra, the counsel for the accused persons argued that the prosecution has failed to discharge its burden and J1legc1tions against the accused persons cannot be sustained. It has been argued by the Counsel for Accused that there was no rash or negligent driving on the part of accused and he has been falsely implicated. It was also argued that the co mplainant Pradeep was driving the motorcycle at a high speed and accident was caused due to this.
11. Before proceedings further and considering the contentions of both the parties, Slate Vs. Gajjan Khan Page 7 of 24 FIR No 80/2004, PS L I wish to refer to the relevant provisions of law:
Section 279 IPC: Rash driving or riding on a public way 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 QI l l P Ti l 1@rfQPtion for a term which may extend to six months, or with fine which ma~ ·tend to one thousand rupees, or with both.
Section 304A: Causing death by negligence Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 337: Causing 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 six months, or with fine which may extend to five hundred rupees, or with both.
Section 338: Causing grievous hurt by act endangering life or personal safety of others:
Whoever causes grievous 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.
12. From the abovesaid provisions, it is clear that one must first understand meaning of the rashness and negligence. Distinction between Rashness and neg li gence was explained by a three-judge bench in the celebrated case of Bhalachandra Waman Pathe v. State of Maharashtra, 1968 Mah LJ 423 wherein it was observed:
"There is a distinction between a rash act and a negligent act. In the case of a rash act the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequence. Criminal negligence is the gross and culpable neglect or failure to Stale Vs. Gajjan Khan Page 8 of 24 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 JU 2 I HE l )lr'Jble 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. 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. In the instant case the appellant was driving his car at a speed of 35 miles an hour, the speed permissible under the rules. No other circumstance was pointed out to show that he was driving in a reckless manner. Therefore, he cannot be said to have been running the risk of doing an act with recklessness or indifference as to the consequences. But he was undoubtedly guilty of negligence. He had a duty to look ahead and see whether there was any pedestrian in the pedestrian crossing. It is likely that while driving the car he was engrossed in talking with the person who was sitting by his side. By doing so, he failed to exercise the caution incumbent upon him. His culpable negligence and failure to exercise that reasonable and proper care and caution required of him resulted in the occurrence. He was therefore guilty of offence under S. 304A."
13. Ku/deep Singh v. State of Himachal Pradesh 2008 Cri.L.J. 3932 is another important case, where the Hon'ble Apex Court dealt with Section 304A IPC. It was observed by the Supreme Court:
Stale Vs. Gajjan Khan Page 9 of 247. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all probabilities, will cause death. This provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of 7 IFS sn 2li1 4-,r person. Negligence and rashness are essential elements under Section 304-A.
8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence, a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The death so caused is not the determining factor.
9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edition) Volume 34 paragraph 1 (para 3) as follows:
"Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in Stale Vs. Gajjan Khan Page 10 of 24 FIR (;
doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to I t I I 1721111" or property. The degree of care required in the particular rose depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two".
10. In this context the following passage from Kenny's Outlines of Criminal Law, 19th Edition (1966) at page 38 may be usefully noted:
"Yet a man may bring about an event without having adverted to it at all, he may not have foreseen that his actions would have this consequence and it will come to him as a surprise. The event may be harmless or I harmful, if harmful, the question rises whether there is legal liability for I it. fn tort, (at common law) this is decided by considering whether or not I a reasonable man in the same circumstances would have realised the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lie where it falls. But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word 'negligence' denotes, and should be used only to denote, such blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages. But it should now be recognized that at common law there is no criminal liability for harm State Vs. Gajjan Khan Page 11 of 24 thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy ti § JI I i i4!t 1est that recklessness is a degree of negligence The common habit of lawyers to qualify the word "negligence" with some moral epithet such as wicked' 'gross' or 'culpable' has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression in order to explain itself."
LI. "Negligence", says the Restatement of the law of Torts published by the American Law Institute (1934) Vol. I. Section 28 "is conduct which falls below the standard established for the protection of others against unreasonable risk of harm". It is stated in Law of Torts by Fleming at page 124 (Australian Publication 1957) that this standard of conduct is ordinarily measured by what the reasonable man of ordinary prudence would do under the circumstances. In Director of Public Prosecutions v. Camp/in, (1978)2 All ER 168 it was observed by Lord Diplock that "the reasonable man" was comparatively late arrival in the laws of provocation. As the law of negligence emerged in the first half of the ]9th century it became the anthropomorphic embodiment of the standard of care required by law. In order to objectify the law's abstractions like "care" "reasonableness" or "foreseeability" the man of ordinary prudence was invented as a model of the standard of conduct to which all men are required to conform.
12. In Syed Akbar v. State of Karnataka, (1980)1 SCC 30, it was held that "where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions, (1937)(2) All ER 552) simple lack of care such as will constitute civil liability, is not enough; for liability under the criminal law a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied 'reckless' most nearly covers the case. "
Stale Vs. Gajjan Khan Page 12 of 24, 'j n
13. According to the dictionary meaning 'reckless' means 'careless', 'regardless' or heedless of the possible harmful consequences of one's acts'. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, 7 7 PR 7 7 g Iii( this, recklessness covers a whole range of states ~f mind_from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless deciding to ignore it. In R. v. Briggs, (1977)1 All ER 475 it was observed that a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from the act but nevertheless continues in the performance of that act.
14. In R. v. Caldwell, (1981)1 All ER 961, it was observed that:-
"Nevertheless, to decide whether someone has been 'reckless', whether harmful consequences of a particular kind will result from his act, as i distinguished from his actually intending such harmful consequences to .J follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would not be described as 'reckless' in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual on due consideration of the risk would not he deterred from treating it as negligible, could the accused be described as reckless in its ordinary sense, if, having considered the risk he decided to ignore it. (In this connection the gravity of the possibl; harmful consequences would be an important factor. To endanger life must be one of the most grave). So, to this extent, even if one ascribes to 'reckless' only the restricted meaning adopted by the Court of Appeal in St~phenson and Briggs,. of foreseeing that a particular kind of harm might happen and yet gomg on to take the risk of it, it involves a test th t would be described in part as 'obiective' 1• a J n current 1egal jargon.
Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective."Slate Vs. Gajjan Khan Page 13 of 24
15. The decision of R. v. Caldwell (Supra) has been cited with approval in R v. Lawrence, (1981)1 All ER 974 and it was observed that:
"--- Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act I 1 1- L) able of causing the kind of serious harmful consequences that ) the section which creates the offence was intended to prevent, and that I the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it".
16. The above position was highlighted in Naresh Giri v. State of M.P., 2007(4) RCR(Criminal) 1038: 2007(6) RAJ 237: [2008(1) SCC 791].
17. The evidence of PWs 1, 3 & 4 clearly show that the vehicle was being driven at a very high speed. Evidence on record show that more than 50 persons were there in the truck and the appellant was driving the same at a very high speed. One of the witnesses has stated that the truck was being driven as if it was an aeroplane. Therefore, the conviction as recorded cannot be faulted
14. Similarly, in Prabhakaran v. State of Kera/a 2007(3) R.C.R.(Criminal) 605 it was observed by the Hon'ble Supreme Court:
5. Section 304A speaks of causing death by negligence. This section applies to rash and negligence acts and does not apply to cases where death has been voluntarily caused. This section obviously does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death. It only applies to cases in which without any such intention or knowledge death is caused by what is described as a rash and negligent act. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done Stale Vs. Gajjan Khan Page 14 of 24 precipitately. Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not. Lord Atkin in Andrews v. Director of Public Prosecutions, 1937 AC 576 observed as under:
" '~ imple lack of care such as will constitute civil liability is not I a enough. For purposes of the criminal law there are degrees of ' negligence; and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'recklessness' most nearly covers the case. It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter; but it is probably not all embracing, for 'recklessness' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction."
6. 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 to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton cict 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.
Stale vs. Gajjan Khan Page 15 of 24 FIR
7. 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 recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or (gjj--7~o exercise that reasonable and proper care and precaution to 6 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.
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 o~en with the belief that the actor has taken sufficient precautions to prevent their happening. The immutability arises from acting despite the consciousness.
j Culpable negligence is acting without the consciousness that the illegal and mschievous 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 immutability arises from the negligence of the civic duty of circumspection." (See in re: Nidamorti Nagabhusanam 7 Mad. H.C.R. 119)
15. Considering the abovesaid provisions and the law as explained by the Superior Courts, I find that the onus was on the prosecution to prove the following facts:
a) TSR bearing number DL lRG 9966 was being driven in a rash or negligent manner by the accused Gajjan Khan.
b) While being so driven, Accused hit the motorcycle bearing number DL 7SZ 9128 Hero Honda causing the complainant Pradeep and pillion rider to fall down.
c) The said falling down of Pradeep and Umesh, resulted in simple injury to Pradeep and death of Umesh.
16. lt is pertinent to note that the accused has not disputed the identity of the Stale Vs. Gajjan Khan Page 16 of 24 vehicles i.e. TSR bearing number DL lRG 9966 and motorcycle bearing number DL 7SZ 9128 Hero Honda and gave statement in this respect on 03.09.2015. lt is also not in dispute that there was collision between the aforesaid vehicles on 22.09.2004. It was argued that the motorcycle hit the f I f · Hfthind and not vice versa.
117. Perusal of testimony of PW2/Complainant Pradeep shows that he has categorically deposed that while he was going ori his motorcycle bearing registration no. DL 7SZ 9128 along with his friend Umesh, sitting as pillion rider, one TSR came from behind without looking left side and without giving any indicator hit his bike. The said fact is corroborated from his previous statement Ex PW2/A given on 22.09.2004 itself after the incident wherein he stated that one TSR came from behind at a high speed and in a rash manner from behind and hit his motorcycle due to which he and pillion rider Umesh fe ll down. Counsel for. Accused has argued that the testimony of PW2 isn't credible because in his cross examination he has conceded that in his statement Ex. PW2/A the vehicle number was mentioned at the instance of police official but in his previous statement Ex. PW2/A it has been mentioned that he had noted down the number of TSR. But the said contradiction is not material given the fact that identity of TSR bearing number DL lRG 9966 is not disputed by the accused. It is also pertinent to note that the principle of principle of 'falsus in uno, falsus in omnibus' (false in one thing, false in everything) is not applicable in India. Under the common law, it is general assumption that if certain facts out of a narrative is false, then the entire narrative is also false. However, the Supreme Court bench comprising of Justice Sanjay Kishan Kaul and Justice Hemant Gupta reiterated in the matter of Mahendran v. State of Tamil Nadu Cr. App no 1266 of 2010 in its order dated 21.02.2019 has reiterated principle of 'falsus in uno, falsus in omnibus' (false in one thing, false in everything) is not applicable in India and observed:
Page 17 of 24State vs. Gajjan Khan " Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno, falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the d
-Ff£f1:[ of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence ........... ..................... .
The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care."
18. Hence, the entire testimony of PW2 cannot be discarded merely because of the aforementioned contradiction. Though the same requires careful consideration and scrutiny. The testimony of the PW2 that the TSR in question came from behind and without looking left side, hit the bike of PW2 is also corroborated by the mechanical inspection report form Ex PW3/F wherein it is observed that TSR had scratches on the front left side body implying thereby that at the time of collision the impugned TSR hit the bike to its left. It is also the case of prosecution that the accused without taking due care was overtaking the bike of the cornpluinunt and took left turn without giving any indication, thus thereby cau sing the accident by driving in a rash and negligent manner. The plea of the acc used that he was going straight for getting CNG filled and the bike of Stale Vs . Gajjan Khan Page 18 of 24 FIR • 380/2004, PS Bhajanpura complainant hit his auto from behind is implausible. Had it been so, then the scratch marks would have been at the back of the TSR. Thus, there is nothing on record to disbelieve the testimony of PW2 on the aspect that the TSR being driven by accused came from behind and without looking left or giving any tJ r I l HI t I -tl:!it the motorcycle of the PW2. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by Apex Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. It is no longer res integra that "Convincing evidence is required to discredit an injured witness". Hence testimony of PW2 cannot be brushed aside lightly. He had given full details of the incident and the manner in which accident occurred. PW2 has been subjected to lengthy cross- examination and nothing material has been elicited to discard his testimony.
19. Now moving to the plea of the accused that the place of accident is busy road and merely because there was collision at time of overtaking cannot be said to be rash or negligent. However, Hon'ble High Court of Delhi in its order dated 29.03.2023 in MAC.APP. 411/2015 SUSHILA DEVI & ORS vs SANDEEP KUMAR ( United India Insurance Co.) has observed:
"22. This Court is also of the opinion that rash and negligent driving does not in every case necessarily mean the excessive speed. Not taking due care while driving the vehicle and in particular overtaking, either stationary or moving vehicle also would amount to rash and negligent driving .... "
Stale Vs. Gajjan Khan Page 19 of 24 ra ~0. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor hc.1s 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 nr 1bdtJ bi 6 • mspection. In the present case, there was duty on the accused to be circumspect at the time of overtaking. But as per categorical deposition of PW2 at the said aspect no indication was given and without looking left, hit the motorcycle of the complainant. Thus, the act of the accused in trying to overtake and thereafter moving left without giving any indication and without looking left was a criminally negligent act. Accused owed a duty of care towards the complainant/PW2 and pillion rider Umesh as they were in the area of foreseeable danger at the time of attempt to overtake. Merely because PW2 has not deposed that the accused acted negligently or rashly, it cannot be held that there was no negligence on the part of accused. It was held by Punjab and Haryana High Court in 2006(1) R.C.R.(Criminal) 980 "Union Territory Chandigarh v. Geja Singh" that absence of words "rash and negligent" by eyewitness will not lead to conclusion that vehicle was not being driven in a rash and negligent manner. Rash and negligent act has to be inferred from appraisal of entire evidence adduced by prosecution. Similarly, Supreme Court in case titled as "Duli Chand v. Delhi Administration" AIR 1975 Supreme Court 1960 observed that failure of the bus driver to look on right while approaching cross road, us though driven at moderate speed of 20 miles, was negligent and held guilty. No material has been brought on record by the accused to show that he took due care either in the cross examination of PW2 or by leading any defence evidence. Hon'ble Karnatake High Court in "State of Karnataka v. Akram Pasha" 2007(4) AICLR 712, a case involving co lli sion between two vehicles observed that once the prosecution materials indi cate highly rash and negligent act of driving by the driver of one vehicle ' burden shifts to that driver to show that he was not at fault. If the accused fails Stale Vs. Gajjan Khan Page 20 of 24 tu avail of such opportunities, Court will have to accept the version of the prosecution. Hence, I find that the act of Accused Gajjan Khan (while driving TSR bearing no DL lRG 9966) of attempting to overtake the complainant without looking left and without giving any indication and u I iihtlil! JIPL,ike of the complainant was a criminally negligent act.
2l. Now the next question to be determined is whether the death of Umesh and injury caused to Pradeep was direct result of a rash and negligent act of the accused Gajjan Khan. In "Kishan Chand v. State of Haryana", 1971 P.L.R. 191 it was held by the Supreme Court that act must be the proximate and efficient cause without the intervention of another's negligence i.e. it must be the cause causans. It is not enough that it may have been the cause sine qua non. Accused did not dispute the genuineness of MLCs dt. 22.04.2004 of the injured Umesh and Pradeep which were Ex. PXl and PX2 respectively. Further accused also did not dispute the postmortem report of Umesh which was exhibited as PX3 and death summary report which was Ex. PX4. He also did not dispute the dead body identification memos which were Ex. PX5 and Ex. PX6 respectively. He also did not dispute the mechanical inspection report and ], the same was Ex. PX7. Perusal of MLC PXl, postmortem report PX3 and death summary report PX4 shows that several injuries including lacerated wound measuring 1.5 x .05 cm on the left occipitoparietal region, extrav-asation of blood present in the frontal and bilateral parietal and occipital region, fracture in the skull on right side occipital bone, subarachnoid hemorrhage on the brain on temporal and frontal region on right side left frontal area, contusions and lacerations in right temporal and right frontal region were suffered by Umesh by falling from the motorcycle due to being hit by the TSR driven by accused in a negligent manner. In simple terms , impact · of fa11 mg .
clown from the bike was such that even the skull of Ume sh got penetrated and there was blood loss from the vessels of brain. Cause 0 f death of Umesh was State Vs. Gajjan Khan Page 21 of 24 FIR N · 80/2004, PS Bhajan a opined to be shock due to antemortem cranio cerebral injuries produced by blunt force impact. Nothing has been brought out in the cross examination of Lhe witnesses that the injuries were not suffered by falling down from the bike 011 bein g hit by the TSR being driven by the Accused. Per contra only n 3!.!Qdllid• .JS that complainant/PW2 was driving the bike at a high speed and hit the TSR of the Accused. The said suggestion has remained bald averment. No evidence has been led to prove the same. Further, it has not been clarified what was the speed at which Motorcycle was being driven due to which it should be considered high. It is well settled that the statement of accused under S. 281 Cr. P.C. or under S.313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. It has to be looked into only as an explanation of the incriminating circumstance and not as evidence.Thus, the death of Umesh was the direct result of negligent driving of Gajjan Khan. Hence, I find that the death of Gajjan Khan was the direct result of the negligent act of Gajjan Khan by not taking due care at the time of overtaking without looking left and without giving any indication and therefore, is liable for causing death by negligence.
22. Further, injuries suffered by complainant PW2 Pradeep by falling from motorcycle have also been proved by the prosecution through MLC Ex. PW2. The nature of injury is simple. It is not the case of accused that PW2 didn't suffer injury on falling down from the motorcycle on collision between the vehicles. Rather, the defence was that there was no negligence on the part of Accused. But as discussed above, the prosecution has successfully proved that D Accused Gajjan was negligent in attempting to overtake by not looking and wi thout giving any indication. Hence, I find that the prosecution has successfully proved that hurt was caused to PW2/complainant by doing negligent act that endangered the personal safety of Pradeep. Here I would like' LO mention that at the time of giving the findings, it has been noticed by I, Stat e vs. Gajjan Khan Page 22 of 24 I~ J .. the undersigned that offence punishable under section 337 IPC has not been stated in the charge framed against the accused for causing hurt to complainant Pradeep. However, complete notice was given to the accused and he has not been misled nor it has occasioned a failure of the justice. The relevant portion of t ] [ gl 1 j e 1s reproduced hereunder:
s: "
Secondly, on the said date, time and place while driving the said vehicle, you struck it against motorcycle no DL 7SZ 9128 of complainant Pradeep Singh and caused simple injuries on his person and also caused death of pillion rider Sh. Umesh not amounting to culpable homicide and thereby you have committed an offence punishable u/s 304 A IPC and within my cognizance.
"
23. Thus, the omission in separately stating offence punishable under section 337 IPC is not material in view of Section 215 Cr.P.C. as accused was given complete notice and there has been no miscarriage of justice.
24. Lastly, moving to the allegations of driving TSR bearing no. DL lRG 9966 without licence on 22.09.2004 at about 12:30 am. PW3 has deposed that only RC book, insurance was produced by the accused at the spot. No valid driving license was produced by the accused. No license was produced by the accused. No PW was confronted with any driving license of the accused. Accused simply stated in his statement under section 313 Cr.P.C read with Section 281 Cr.P.C. that he had a valid driving license and badge. However, it cannot be read as evidence of the accused and it has to be looked into only as an explc1nation of the incriminating circumstance and not as evidence. Mere pleading not guilty and without producing any license is not sufficient to rebut the entire evidence produced by the prosecution. Hence, I find that prosecution has successfully proved that accused Gajjan was driving TSR bearing number TSR bearing no. DL lRG 9966 without licence on 22.09.2004 at about 12:30 am.
Stale Vs. Gajjan Khan Page 23 of 24ra
25. In view of the observations given above and the evidence led on record, this < 1 Co urt is of the view that the prosecution has successfully proved the case. f\cco rdingly, accused is convicted for the offence under section 304A IPC for c:a us~ng dcftlh of Umesh by negligent act. Further, accused is convicted for the L I I • IL :,. , offence under section 337 IPC for causing simple injury to Pradeep by a negligent act. Also, Accused is convicted for the offence under section 279 IPC for di"iving TSR bearing no DL lRG 9966 in a negligent manner on a public way. Accused is also convicted for the offence under section 3/181 Motor Vehicle Act for driving TSR bearing no DL lRG 9966 without licence. Copy of judgment be given free of cost to the accused pe n and matter be listed for arguments on sentence.
Announced in the (R GH DHIMAN)
Open Court on 06.04.2023 Metro · an Magistrate-01
KKD Courts, Delhi
Jt is certified that this judgment contains tw nty-four (24) pages and each page bears my signature.
, Delhi 3 sw1e Vs. Gajjan Khan Page 24 of 24 FIR No. 38012004, PS Bh a1anpura .