Delhi District Court
State vs . Kamlesh Kumar Gaur on 17 December, 2021
IN THE COURT OF MS. NEETIKA KAPOOR, MM-11, SOUTH WEST
DISTRICT, DWARKA COURTS, DELHI.
FIR Number : 403/17
P.S. : Janakpuri
U/s : 279/338 IPC
STATE VS. KAMLESH KUMAR GAUR
a) Cr. no. of the Case : 4825/18
b) Name & address of the Complainant : Sanjay Kumar
S/o Sh. Amarat Lal
R/o Village + PO Chandwar,
PS Basai Mohamad Pur,
District Firojabad (U.P.)
c) Name & address of accused : Kamlesh Kumar Gaur
S/o Sh. Lalit Prasad Gaur
R/o A-18, Mansa Ram Park,
Uttam Nagar, New Delhi.
d) Date of Commission of offfence : 12.09.2017
e) Offence complained of : 279/338 IPC
FIR Number :403/17 State vs. Kamlesh Kumar Gaur 1 / 17
f) Plea of the accused : Pleaded not guilty
g) Final Order : Acquittal
Date of registration of FIR : 12.09.2017
Final arguments heard on : 26.11.2021
Judgment Pronounced on : 17.12.2021
JUDGMENT
1. The accused Kamlesh Kumar Gaur is facing trial for the commission of offences punishable under Sections 279 and 338 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) in connection with the case FIR No. 403/17 registered at P.S. Janak Puri.
2. Briefly stated, the case of the prosecution is that on 12.09.2017, at around 12.30 PM, on Dabri Fly Over, in front of World Brain Hospital, Janakpuri, accused Kamlesh Kumar Gaur was driving a vehicle bearing registration no. DL 3CAP 8985 in a rash and negligent manner at high- speed and hit a moped bearing no. DL 11SP 2338, which resulted in grievous injuries to injured Sanjay Kumar who was taken to WB Center Hospital for treatment by accused K.K. Gaur and eye witness Honey Singh. Thereafter, the FIR Number :403/17 State vs. Kamlesh Kumar Gaur 2 / 17 present FIR was registered against accused and IO HC Rabinder Kumar was appointed as the Investigating Officer.
3. During investigation, IO inspected the site of the incident and having inspected it, prepared a site plan thereof. During investigation, IO formally impounded the vehicle of the accused bearing registration No. DL 3CAP 8985 along with documents and got the vehicle mechanically examined by the motor mechanic and obtained necessary reports in this regard. During investigation, the photographs of the spot and the afore mentioned vehicle were also taken. During investigation, the statements of the witnesses were recorded and based on the material collected, accused Kamlesh Kumar Gaur was found responsible for the commission of offences punishable under Sections 279 and 338 of the IPC. After completion of the investigation, case file was handed over by the IO to SHO of Police Station Janak Puri who after following the codal formalities, prepared and filed the instant challan against the accused.
4. On finding sufficient material on record against accused Kamlesh Kumar Gaur, he was summoned before this court and on his appearance, copies of the challan and other documents were supplied to him in compliance of Section 207 of Code of Criminal procedure, 1973 (herein referred to as Cr.P.C).
5. On finding a prima-facie case against the accused Kamlesh Kumar Gaur under Sections 279 and 338 of I.P.C., notice of accusation was put to him, to which he pleaded not guilty and claimed to have a defense to make.
FIR Number :403/17 State vs. Kamlesh Kumar Gaur 3 / 17
6. Thereafter, prosecution was called upon to adduce its evidence. The prosecution in order to prove its case examined as many as 3 witnesses. PW-1 Sanjay Kumar is the complainant, PW2 Honey Singh is the an eye witness and PW3 HC Rabindra Kumar is the IO of the case.
7. Thereafter, Statement of accused u/s 294 Cr.PC r/w Section 313 Cr.PC was recorded in which he admitted certain documents relied upon by the prosecution i.e. FIR as Ex. P/A/1, Superdarinama of motorcycle TVS no. DL 11SP 2338 vide Ex. P/A/2, superdarinama of offending vehicle no. DL 3CAP 8985 as Ex. P/A/3, MLC of injured Sanjay Verma vide Ex. P/A/4, mechanical inspection report of offending vehicle DL 3CAP 8985 vide Ex.P/A/5, mechanical inspection report of motorcycle no. DL 11 SP 2338 vide Ex. P/A/6, panchnama report of vehicle no. DL 11SP 2338 vide Ex. P/A/7 and panchnama report of vehicle DL 3CAP 8985 vide Ex. P1/A/8. Vide separate statement of Ld. APP, PE was closed.
8. Thereafter, incriminating evidence adduced by the prosecution was put to the accused by recording his statement under section 313 of Cr.P.C wherein he admitted to be driving the vehicle bearing registration no. DL 3CAP 8985 at the time of the incident. He stated that injured had hit his car with his motorcycle from behind and he did not know how the accident took place. He stated that he had called the PCR on humanitarian ground. He stated that he did not commit the alleged accident and he helped the injured. He preferred not to lead any evidence in his defense.
FIR Number :403/17 State vs. Kamlesh Kumar Gaur 4 / 17
9. I have heard Ms. Rajesh Kumari, Ld. APP for State and Sh. L. S. Gautam, Ld. Defence Counsel and have gone through the records carefully.
10. On the basis of evidence on record, the following points arise for determination in the present case:
1. Whether the prosecution has proved its case beyond reasonable doubt that on 12.09.2017 at about 12.30 PM on Dabri Fly Over, Opposite W.B. Centre Hospital, accused Kamlesh Kumar Gaur was driving vehicle bearing registration No. DL 3CAP 8985 in a rash or negligent manner so as to endanger human life and personal safety of others and thereby hit injured Sanjay Kumar due to which he sustained grievous injuries?
2. Final order.
11. For the reasons to be recorded hereinafter while discussing the reasons for my findings, my findings on the aforesaid points are as under:
Point No. 1: No Final order: The accused Kamlesh Kumar Gaur is acquitted as per the operative part of the judgment.
FIR Number :403/17 State vs. Kamlesh Kumar Gaur 5 / 17 REASONS FOR FINDINGS POINT NO. 1
12. To bring home the culpability of accused under Section 279 and 338 IPC, it is pertinent that relevant provisions of law are first read. Section 279 IPC is reproduced herein below:
279. 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 description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
13. From bare reading of this provision, the three essential ingre-
dients which constitute the offence of rash driving on a public way are as fol- lows:
1. Person must be driving or riding on a public way.
2. He must be driving in a rash and negligent manner.
3. He must be driving in a manner likely to endanger human life or personal safety of any person.
14. Section 338 IPC is reproduced herein below:
338. Causing grievous hurt by act endangering life or per-
sonal safety of others: Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endan-
FIR Number :403/17 State vs. Kamlesh Kumar Gaur 6 / 17 ger human life, or the personal safety of others, shall be pun- ished 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.
15. Perusal of these provisions makes it clear that offence under section 279 and 338 IPC will be made out when grievous hurt is a direct consequence of a rash or negligent act. Rashness conveys the idea of recklessness or doing an act without due consideration whereas negligence connotes want of proper care. A rash act implies an act done by a person with recklessness or with indifference to its consequences, the doer being conscious of the mischievous or illegal consequences does the act knowing that his act may bring some undesirable or illegal results but without hoping or intending them to occur. A negligent act, on the other hand, refers to an act done by a person without taking sufficient precautions or reasonable precautions to avoid its probable mischievous or illegal consequences.
16. Reference may be taken from the decision of the Hon'ble Supreme Court of India in the case titled "Mohammed Aynuddin @ Miyan vs. State of Andhra Pradesh (decided on 28.07.2000)", wherein the Hon'ble Apex Court discussed in detail the constituents of a "rash or negligent act" and observed:
"A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with FIR Number :403/17 State vs. Kamlesh Kumar Gaur 7 / 17 recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
17. Further, in the case of "Braham Dass vs. State of Himachal Pradesh (2009) 3 SCC (Cri) 406", while discussing the legal position with respect to an offence u/s 279/304A, the Hon'ble Supreme Court of India, interalia observed the following:
"Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly, in Section 304A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."
18. Therefore, indifference to the consequences of one's act or absence of reasonable care and precaution is the most important ingredient constituting rashness or negligence. It should be noted that intention of the person acting rash or negligent act is immaterial and what is important is that he has not taken due care or has done the said act with indifference to the consequences. Further, it should be noted that there should be direct nexus FIR Number :403/17 State vs. Kamlesh Kumar Gaur 8 / 17 between the act or rashness or negligence and hurt/grievous hurt/death, as the case may be, suffered by the victim.
19. The Hon'ble Delhi High Court in the case of "Abdul Subhan vs. State (NCT of Delhi) 133 (2006) DLT 562" discussed the ingredients which need to be established by the prosecution for convicting an accused u/s 279/304-A IPC and held the following:
"...the essential ingredients of section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As regards the offence punishable under section 304A IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide."
20. In order to prove the offence under section 279, IPC, the prosecution must establish firstly, the identity of the accused that is, the fact that accused was driving the aforementioned vehicle at the time of accident. Secondly, the rashness or negligence on the part of accused in driving the said vehicle. Lastly, in order to prove an offence under Section 338 of IPC, over and above the aforementioned facts, the injuries on the person of the injured must also be proved to have been caused in the manner suggested by the prosecution.
FIR Number :403/17 State vs. Kamlesh Kumar Gaur 9 / 17
21. In the instant case, the fact that the accused was driving the vehicle bearing registration No. DL 3CAP 8985 has not been disputed by him in his statement recorded under section 313 of CrPC. However, he has specifically stated that the accident did not take place due to his rashness or negligence. However, the fact that the accused was driving the offending vehicle is disputed by the testimony of the complainant, PW-1 Sanjay Kumar who categorically denied to have seen the driver of the four wheeler and failed to identify the accused. However, PW-2 Honey Singh, the other eye witness to the present case, correctly identified the accused in the court but stated that the accident had already occurred before he had reached the spot. The defence has not cross examined the above-mentioned witnesses regarding this part of their testimony. This clearly shows that the accused has not disputed the fact that he was driving the offending vehicle on the date of accident. Hence, it is duly proved on record that the accused was driving Santro Car bearing registration No. DL 3CAP 8985 on 12.09.2017.
22. However, merely because the accused was driving the offending vehicle is not sufficient to infer the rashness or negligence on his part. This fact must be established independently by the prosecution. Reliance is placed on the judgment of the Hon'ble High Court of Bombay in case titled "Tuka Ram Sita Ram vs. State" (1971 Bom 164)".Therefore, it is obligatory for the prosecution to prove that the accused was driving the vehicle in a rash or negligent manner and his rashness or negligence had led to the accident.
23. In order to prove this aspect of the case, the prosecution has examined, PW-1 Sanjay Kumar and PW-2 Honey Singh who being the FIR Number :403/17 State vs. Kamlesh Kumar Gaur 10 / 17 eyewitnesses are material witnesses of the present case.
24. PW-1 Sanjay Kumar stepped into the witness box and deposed that on 12.09.2017, he was going to collect some payment on his moped and at about 12.30 PM, had reached Dabri Mor when a four wheeler vehicle came from the back side and suddenly took a turn in front of his moped due to which his moped got stuck with the vehicle. He further deposed that the driver of the four wheeler vehicle did not give any indication or horn prior to turning. He further deposed that he was driving his moped at some distance from the divider and the four wheeler came from his right side. He further denied to have seen the driver of the four wheeler as he had become unconscious and deposed to have regained his consciousness at DDU hospital. He expressed his inability to identify the offending vehicle and at this stage was declared hostile by the prosecution witness and cross examined by Ld. APP for the State.
25. In his cross-examination, the witness failed to identify the accused as the driver of the offending vehicle on the day of the accident and also failed to identify the photographs of the offending vehicle. The witness expressed ignorance whether the accused had taken him to the hospital or not. He denied the suggestion that he was deposing falsely and was deliberately not identifying the accused and the offending vehicle as he was under the influence of the accused. Thereafter, the witness was cross examined by Ld. Counsel for the accused wherein he denied the suggestion that accident was caused by his own mistake by colliding with the divider.
FIR Number :403/17 State vs. Kamlesh Kumar Gaur 11 / 17
26. The perusal of the testimony of this witness shows inconsistencies and contradiction in his version. PW1 in his testimony has in a casual manner merely deposed that while he was on Dabri Mor, one four wheeler came from the back side and suddenly took a turn in front of his moped but did not state the manner in which the vehicle was being driven by the accused or the approximate speed at which the vehicle was being driven by the accused.
27. Therefore, in view of the aforesaid observations, it is clear that an inference of act of rashness or negligence cannot be drawn from a simple testimony of the PWs that the vehicle was being driven in a rash and negligent manner. Specific evidence has to be led by the prosecution in order to prove the same.
28. The perusal of the testimony of PW1 and PW2 raises a doubt with respect to the accident being actually caused due to the rashness or negligence of the accused and, therefore, it could not be relied upon to prove the rashness or negligence on the part of the accused in driving the offending vehicle. Hence, the testimony of this witness requires corroboration.
29. In order to corroborate the testimony of PW-1, the prosecution has examined PW- 2 Honey Singh who stepped into the witness box and deposed that at around 1.00 PM on the date of the incident, he saw a injured person on Dabri Fly Over alongwith the accused and two other people. The witness deposed that accused was driving the offending vehicle but further deposed that the accident had already taken place before he had reached the spot FIR Number :403/17 State vs. Kamlesh Kumar Gaur 12 / 17 and expressed his inability to state the manner of hitting of both the vehicles. He further deposed that he alongwith the accused and some other persons shifted the injured to W.B. Centre hospital at Dabri. The witness correctly identified the accused in the court as well as the photographs of the offending vehicle as well as the moped which are Ex. P-1 (collectively) and P-2. In his cross- examination, he admitted that on seeing the spot, he can say that car bearing no. DL 3CAP 8985 was in front of moped bearing no. DL 11SP 2338 but expressed his inability to comment whether the accident took place due to fault of the moped driver or due to the fault of accident. He denied the suggestion that the accident had taken place due to the fault of the accused who was driving the vehicle in a rash and negligent manner and admitted that accused had not revealed any of the facts of the incident to him.
30. The testimony of this witness also does not prove the fact that accused was driving the offending vehicle in a rash or negligent manner. Though, in his examination in chief he had stated that the accused was driving the offending vehicle at the time of the accident, he failed to testify about the rashness and negligence on the part of the accused while driving the offending vehicle. As such, his testimony as to the rashness or negligence on the part of the accused cannot be relied upon as he has clearly stated to have not seen the accident take place.
31. Further the prosecution relied upon the testimony of PW-3 HC Rabindra Kumar, IO of the present case in order to prove the guilt of the accused. During his examination in chief, IO gave a detailed account of investigation carried out by him in the present case. However, perusal of the FIR Number :403/17 State vs. Kamlesh Kumar Gaur 13 / 17 testimony reveals that he was also not the eye witness to the accident. The witness had reached the spot only after the accident had taken place and while he conducted the investigation in the present case, he could not explain in detail the act of rashness and negligent on the part of the accused. He did not even state the accused to be driving his car in a rash and negligent manner. Although he had gotten the mechanical inspection conducted which indicates that the vehicle was involved in the accident but the same is not sufficient to prove the act of rash or negligent driving of the accused. Therefore, even the testimony of PW3 is not sufficient to prove the guilt of the accused in the present case beyond reasonable doubt. Moreover, site plan Ex. PW3/B prepared by the IO is not sufficient to prove the act of rashness or negligence on the part of the accused. While it shows the location of the accident which is undisputed, it could not be inferred that accident occurred due to rash and negligent act of the accused.
32. Having discussed the above, now a question arises as to whether a presumption of rashness or negligence can be drawn in the present case against the accused driver by invoking the doctrine of res ipsa loquitur. This doctrine which literally means "things speak for themselves" is mostly applicable in the civil cases of negligence wherein a presumption is drawn against the wrongdoer that he has not taken due and proper care or he has done certain acts rashly. According to this doctrine, a presumption of negligence is drawn against the wrong doer from the circumstances and burden of proof shifts to him to prove his innocence. The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to belief that in the absence of FIR Number :403/17 State vs. Kamlesh Kumar Gaur 14 / 17 negligence, the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer. While discussing about the applicability of this doctrine in the realm of criminal offences, the Hon'ble Supreme Court in the case of Ravi Kapur vs. State of Rajasthan (2012) 9 SCC 285 has held the following:
" In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent be the reason behind the event.
33. Therefore, analysis of the aforementioned judgments makes it very clear that the doctrine of res ipsa loquitur is equally applicable in a criminal case provided that prosecution successfully proves the essential ingredients of the offence, the accident must not have occurred but for someone's negligence or rashness and evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the accident.
FIR Number :403/17 State vs. Kamlesh Kumar Gaur 15 / 17
34. There is no other witness to establish the guilt of the accused. As such, the prosecution has failed to establish the act of rashness or negligence on the part of the accused in the present case and, therefore, failed to prove beyond reasonable doubt the fact that accused Kamlesh Kumar Gaur was driving the offending vehicle bearing no. DL 3CAP 8985 in a rash or negligent manner at the time of accident. Testimony of eyewitnesses does not completely support the prosecution story and testimonies of the rest of the witnesses are not sufficient enough to prove the guilt of the accused. Hence, benefit of doubt must be given to the accused. Thus, this point is answered in the negative and is decided against the prosecution.
FINAL ORDER:
35. Accordingly, in view of the above discussion, since the prosecution could not prove the guilt of the accused for commission of offences punishable under sections 279 and 338 of IPC, beyond reasonable doubt, accused Kamlesh Kumar Gaur is acquitted of the offences punishable under Sections 279 and 338 of IPC.
36. Personal bonds/surety bonds stands cancelled. Endorsement, if any is also cancelled. Sureties stand discharged. Superdarinama, if any stands cancelled. Original documents, if any be returned to the rightful claimant against proper receipt as per rules.
37. The accused has already furnished personal and surety bonds as per the mandate of section 437-A of the Code of Criminal Procedure, wherein he has undertaken that he shall put in his appearance before the appellate court FIR Number :403/17 State vs. Kamlesh Kumar Gaur 16 / 17 within the prescribed period in case an appeal is filed and admitted for hearing. File after due completion be consigned to the Record Room.
Announced and signed in the open court on 17th day of December, 2021.
Digitally signed by NEETIKA NEETIKA KAPOOR
KAPOOR Date: 2021.12.17
17:16:48 +0530
(Neetika Kapoor)
MM-11/DWARKA/DELHI
17.12.2021
It is certified that this judgment contains 17 pages, and each page bears my signature.
FIR Number :403/17 State vs. Kamlesh Kumar Gaur 17 / 17