Delhi District Court
3.Title State vs . Rajender Kumar on 27 May, 2013
THE COURT OF SH. SUNIL KUMAR SHARMA
METROPOLITAN MAGISTRATE
TIS HAZARI COURTS : DELHI
1.FIR No. 199/98
2.Unique Case ID No. Not allotted.
3.Title State Vs. Rajender Kumar
3(A).Name of complainant HC Narender Pal Singh no. 123/W,
PS Moti Nagar
3(B).Name of accused Rajender Kumar s/o Sh. Bhanwar
Singh, r/o R-991, Mangol Puri, Delhi
4.Date of institution of challan 21.09.1998
5.Date of Reserving judgment Pronounced on the same day
6.Date of pronouncement 27.05.2013
7.Date of hearing the final 27.05.2013
arguments
8.Date of commission of offence 29.05.1998
9.Offence complained of Under Section 279/304A IPC
10.Offence charged with Under Section 279/304A IPC
11.Plea of the accused Pleaded not guilty
12.Final order Accused Rajender Kumar is
Convicted U/sec 279/304A IPC
13.Date of receiving of judicial file 24.02.2011
in this court
FIR no. 199/1998 State v. Rajender Kumar Page no. 1 of 33
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. The criminal machinery was ignited and set into the motion in the present case on 29.05.1998 by HC Narender Pal by making a complaint regarding the accident by Rajender Kumar, the driver of Bus no. DL1PA0500 and the accused in the present case. The said accident resulted into the death of the deceased Gopi Nath. The accused was apprehended and produced before the IO by the complainant HC Narender Pal on the same day.
The genesis of the prosecution case in a narrow compass is that on 29.05.1998 at about 11.25 AM at Service Road, Raja Garden in front of Shop no. 116, within the jurisdiction of PS Moti Nagar, the accused Rajender was found driving a Bus bearing no. DL1PA0500 of route no. 846 on a public way in a rash and negligent manner so as to endanger human life and personal safety of others and hit the same against a pedestrian namely Gopi Nath and caused his death not amounting to the culpable homicide and thereby committed an offence punishable u/s 279/304A IPC.
2. Charge sheet was filed in the Court. The compliance of Section 207 Cr.P.C. was ensured. The submissions of the prosecution and defence was heard and notice for the offence punishable u/s 279/3304A IPC was framed against the accused on 07.10.1999, to which the accused pleaded not guilty and FIR no. 199/1998 State v. Rajender Kumar Page no. 2 of 33 claimed trial.
3. Prosecution for proving its case against the accused persons could examine only six witnesses.
1. PW-1 Ct. Shyam Singh, Investigating witness.
2. PW-2 ASI Sarla Jain, Duty Officer.
3. PW-3 HC Narender, Investigating witness.
4. PW-4 Retd. ASI Devender Kumar, Mechanical Inspector,
5. PW-5 Dr. Komal Singh, Medical Officer, HOD Forensic Medicine, DDU Hospital.
6. PW-6 SI Mahender Singh, Investigating Officer.
PW-1 Ct. Shyam Singh is the Investigating Witness and has deposed that on 29.05.1998 on receipt of the DD no. 8A of an accident at Raja Garden, Ring Road, near Shop no. 116 he along with ASI Mahender Singh went to the spot and saw a bus bearing no. DL1PA0500 in an accidental condition. The injured was lying unconscious near the bus. ASI Mahender sent the injured to the DDU hospital in a PCR van. He also accompanied the injured person to the hospital. At hospital vide MLC no. 004575 the person was declared brought dead. Thereafter, IO prepared a tehrir and handed over the same to him for registration of the FIR. He brought the tehrir to the police station, got the FIR registered and FIR no. 199/1998 State v. Rajender Kumar Page no. 3 of 33 took the same back to the spot and handed over the same to the IO. IO left him at DDU hospital to look after the dead body of the deceased.
The witness was not cross examined by the Ld. Counsel for the accused despite opportunity.
PW-2 ASI Sarla Jain is the Duty Officer and have proved the registration of the FIR no. 199/98 Ex. PW2/A (OSR) and the endorsement on the rukka of the said FIR as Ex. PW2/B. PW-3 HC Narender is the Investigating witness and has deposed that on 29.05.2004 he was in Division no. 5 and present at Videocon Shop no. 116, Raja Garden at the service road. At about 11.25 AM, one bus bearing no. DL1PA0500 of route no. 846 under DTC came from the side of Punjabi Bagh and the same was being driven by the accused in rash and negligent manner and going towards Tilak Nagar. One person was crossing the road from Basai Dara Pur to Raja Garden. The driver of the bus hit against the person and he fell down and the person who was crossing the road was dragged to some distance and the said person became unconscious. He got the bus stopped. The accused was negligent. ASI Mahender singh came at the spot on receipt of the information. He presented the accused to the IO, who recorded his statement Ex. PW3/A. The FIR was got registered through Ct. Shyam Singh. The injured was removed to the FIR no. 199/1998 State v. Rajender Kumar Page no. 4 of 33 hospital by ASI Mahender through private vehicle. The bus was taken into possession vide memo Ex. PW3/B. The site plan was prepared at his instance Ex. PW3/C. The accused was arrested vide personal search memo Ex. PW3/D. The DL slip of the accused was taken into possession vide seizure memo Ex. PW3/E. The accused drive the bus in high speed and negligently. The accused had even seen the person crossing the road but did not slow down the bus. After accident, he got the vehicle of the accused stopped.
The witness has correctly identified the accused.
The witness was cross examined at length by the Ld. Counsel for the accused.
PW-4 Retd. ASI Devender Kumar is the Mechanical Inspector and has inspected the bus bearing no. DL1PA0500 at the request of the IO at PS Moti Nagar. He had submitted his detailed report Ex. PW4/A. Vehicle was found fit for road test.
The witness was cross examined by the Ld. Counsel for the accused. PW-5 Dr. Komal Singh, HOD Forensic Medicine, DDU Hospital, Delhi has deposed that Dr. Jitender Singh was working as a Medical Officer in DDU Hospital. On 30.05.1998 the post mortum was conducted by Dr. Jitender Singh on the body of deceased namely Gopi Nath Pilli s/o Uppam Pilli. His FIR no. 199/1998 State v. Rajender Kumar Page no. 5 of 33 detailed report is Ex. PW5/A which bears the signatures of Dr. Jitender at point A wherein the said doctor has opined that cause of death was hemorrhagic shock subsequent to the injuries to the vital organs of body in road traffic accident. He can identify the handwriting as well as signatures of Dr. Jitender Singh as he have seen him writing and signing in the course of his duties during the aforesaid period as the said doctor was his subordination during that period.
The witness was not cross examined by the Ld. Counsel for the accused despite opportunity.
PW-6 SI Mahiender Singh is the Investigating Officer and has deposed that on 29.05.1998 he was posted at PS Moti Nagar as ASI. On that day on receipt of DD no. 8A he along with Ct. Shyam Singh went to the place of accident i.e. Raja Garden, Near Service Road, in front of Vodafone shop no. 116, Delhi. On the spot he found bus bearing no. DL1PA0500 in an accidental condition and the injured was found lying unconscious. He sent the unconscious injured to DDU hospital through Ct. Shyam Singh. On the spot he met HC Narender Pal who made statement Ex. PW3/A to him. He left HC Narender at the spot and went to DDU Hospital where he collected MLC of unknown injured who was declared brought dead by the doctors. On the basis of the statement made by HC Narender coupled with the contents of MLC he prepared rukka Ex. PW6/A and rukka was handed over to Ct. Shyam Singh at the spot who accordingly went FIR no. 199/1998 State v. Rajender Kumar Page no. 6 of 33 to PS and got the FIR registered and came back to the spot along with copy of FIR and original rukka and handed over to him. On the spot he prepared site plan Ex. PW3/C at the pointing out of the complaint. HC Narender also produced to him accused Rajender and accordingly he arrested accused and conducted his personal search vide memo Ex. PW3/D and seized the offending bus no. DL1PA0500 vide seizure memo Ex. PW3/B and also seized the DL slip vide memo Ex PW3/E. He also conducted proceeding u/s 174 Cr.P.C. and moved an application Ex. PW6/B for post mortem of deceased and prepared brief facts Ex. PW6/C and application for post mortem is Ex. PW6/D and filled death report form Ex. PW6/E and recorded the statements of the relatives of the deceased who identified the dead body Ex. PW6/F and G and after post mortem he handed over the dead body of Gopi Nathan to his relatives. He also got the offending bus mechanical inspected Ex. PW6/H and collected the report of mechanical inspector. He recorded the statements of witnesses and collected the post mortem report and got the bus released on superdari. He also collected the driver memo from DTC, photocopy of the same is Mark A in which the name of the driver has been mentioned as Rajinder. He also collected the certificate from DTC showing validity of permit of the offending bus which is mark B and after completion of investigation he filed the charge sheet.
4. No other Prosecution Witness was examined. Prosecution Evidence FIR no. 199/1998 State v. Rajender Kumar Page no. 7 of 33 was accordingly closed and the examination of the accused u/s 313 Cr.P.C. r/w section 281 Cr.P.C was recorded on 08.02.2012 wherein the accused had submitted that he is falsely implicated in the present case and has taken the plea of alibi by stating that on the date of the alleged accident the offending vehicle was being driven by some other person as he was on leave for attending the marriage ceremony in Jahangirabad, Bulandshar, UP. He had further submitted that he is not the permanent employee of the bus owner rather he offered his services to the various bus owners in the cases of emergency arising out of the absence of their regular drivers. However, the accused had also expressed his willingness to lead the evidence in his defence. However, no defence witness was examined by the accused despite ample opportunities and the DE was accordingly closed on 28.05.2012.
5. Ld. APP for the state had submitted that the prosecution has proved its case against the accused beyond the shadow of the doubt as the complainant and other prosecution witnesses have fully supported the prosecution case against the accused.
6. Ld. Counsel for the accused has submitted that the prosecution has miserably failed to prove its case against the accused as no independent public witness is examined by the prosecution except the complainant who is a police FIR no. 199/1998 State v. Rajender Kumar Page no. 8 of 33 official and the same cannot form the basis of conviction of the accused. It is also alleged by the Ld. Counsel for the defence that there are material contradiction in the statement of the complainant/injured and other prosecution witnesses and the MLC of the deceased. The prosecution has not only failed to establish the exact place of the accident but have also failed to establish the identity of the accused as no TIP of the accused was conducted and the first time identification of the accused in the court cannot be relied upon. The TIP of the accused in the present case was most essential as the accused was attending the marriage ceremony of his relative in Bulandshahar UP and was not at all present on the spot at the relevant point of time. It is further argued by the Ld. Counsel for the accused that prosecution is under obligation to prove specifically the rashness of the accused as the presumption of the same cannot be drawn merely on the statement of the witnesses.
7. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have gone through the oral and documentary evidence for appreciating the rival contentions.
8. It is pertinent to observe that the accused is facing the trial in a criminal case registered against him in PS Moti Nagar and the Cardinal Principle of Criminal Law is that " In a criminal trial, it is for the prosecution to FIR no. 199/1998 State v. Rajender Kumar Page no. 9 of 33 establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
9. Now the stage has been set to appreciate the entire evidence on record in the light of essential ingredients of the offence punishable u/s 279/304A IPC allegedly committed by the accused person. The offence of section 304A IPC includes within its ambit the offence u/s 279 IPC, therefore, I propose to test the guilt of the accused for the offence punishable u/s 304A IPC upon the quality and credibility of the evidence available on record. The offence punishable u/s 304A IPC is reproduced for the purpose of ready reference:-
"whoever causes the death of any person by doing any rash or negligent act not amounting to the culpable homocide, shall be punished with the imprisonment of either description for a term which may extend to 2 years or with fine or with both".
In order to bring home the guilt for the aforesaid offence the prosecution is under an obligation to prove the following essential ingredients:-
1. there was the death of a person,
2. the said death was caused by the accused, FIR no. 199/1998 State v. Rajender Kumar Page no. 10 of 33
3. the said act of the accused in causing the death of the person was rash or negligent but it did not amount to the culpable homocide.
10. In a nutshell in order to prove the same the prosecution is required to prove the following facts :-
(a) the identity of the accused being the driver of the offending vehicle.
(b) the alleged accident is caused by the rash and negligent driving by the accused at a public place.
(c) the rash and negligent driving resulted into the death of the deceased which is not amounting to the culpable homocide.
11. I shall now proceed to consider the oral and documentary evidence produced by the prosecution in support of their case in the quest to find out whether the prosecution has been successful in bringing the cogent evidence for justifying the conviction of the accused or whether the accused has been able to cast a shadow on the prosecution case for securing his acquittal in the present case.
12. I shall discuss the evidence vis-a-vis each essential ingredients of the offence alleged against the accused.
IDENTITY OF THE ACCUSED AND THE OFFENDING VEHICLE
13. The first and foremost ingredients for proving the case against the FIR no. 199/1998 State v. Rajender Kumar Page no. 11 of 33 accused is the establishment of the identity of the accused by the prosecution being the one who caused the present accident as the same is most essential for fixing the guilt of the accused. The accused is identified by the complainant / eye witness HC Narender who is examined as PW-3 being the one who caused the death of a pedestrian Gopi Nath by driving the offending bus bearing no. DL1PA0500 of Route no. 846 in a rash and negligent manner. PW-3 HC Narender, the complainant and the eye witness of the present case had categorically deposed in his examination that on 29.05.2004 he was posted at PS Moti Nagar and was present on road at Videocon Shop no. 116, Raja Garden, in his Division no. 5 and at about 11.25 AM he saw bus no. DL1PA0500 of route no. 846 under DTC was coming from the side of the Punjabi Bagh and going towards Tilak Nagar. The said bus was driven by the accused Rajender Kumar in rash and negligent manner who had hit his bus against a person who was crossing the road from Basai Dara pur towards Raja Garden. The victim was dragged at some distance and became unconscious. The witness also deposed that the bus was got stopped by him. The accused was negligent. IO ASI Mahender came at the spot and the accused was produced by him to the IO who had also recorded his statement Ex. PW3/A. The FIR was got registered through Ct. Shyam Singh and the injured was taken to the hospital. The offending bus was seized vide seizure memo Ex. PW3/B. The site plan was prepared at his instance Ex. PW3/C. The FIR no. 199/1998 State v. Rajender Kumar Page no. 12 of 33 accused was arrested after conducting the personal search vide memo Ex. PW3/D. The driving license slip of the accused was seized vide seizure memo Ex. PW3/E.
14. It is also argued by the Ld. Counsel for the accused that the alleged accident had taken place in front of the videocon shop no. 116, Raja Garden but the prosecution has neither cited nor examined any person from the said shop of any other public person as the prosecution witness who were stated to be present at the spot along with the complainant HC Narender at the time of the accident.
15. The arguments seems to be ill founded and devoid of any merit as the accused cannot direct the investigating agency to examine a particular person as a witness as it is entirely the prerogative and the privilege of the prosecution to decide the name and number of the witnesses for examination in support of their case. Further the quality of the witness decide the fate of the case and not the quantity of the witnesses. Reliance is placed upon the judgment titled Ambika Prasad & Anr Vs. State reported in 2002(2) Crimes 63 SC wherein it has been held ' Independent persons are reluctant to be a witness or to assist the investigation. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground FIR no. 199/1998 State v. Rajender Kumar Page no. 13 of 33 for rejecting the evidence of injured witnesses.
Reliance is also placed upon judgment titled Appa Bhai Vs. State of Gujrat reported in AIR 1988 SC 696 wherein it has been held 'These days people in the vicinity where the occurrence took place avoid to come forward to give evidence and civilized persons are insensitive when crime is committed even in their presence and they withdraw both from the victim and vigilance'.
16. In view of the above settled law it is clear that the prosecution case can not be thrown away merely on the ground that no public witnesses have been joined and it is also settled that the testimonies of police officials could be believed if the some have same reliability and inspires the confidence of the court.
17. Ld. Counsel for the accused has also argued that no TIP of the accused was conducted by the IO and the first time identification, of the accused in the court cannot be relied upon for establishing the identity of the accused. PW-3 HC Narender, the complainant/eye witness in the present case had categorically deposed that the accused and the offending vehicle were apprehended/stopped by him immediately after the alleged accident and were produced to the investigating officer PW-6 ASI Mahender. The personal search of the accused was conducted vide personal search memo Ex. PW3/D and the FIR no. 199/1998 State v. Rajender Kumar Page no. 14 of 33 offending vehicle was seized vide seizure memo Ex. PW3/B. Further no suggestion of whatsoever nature regarding the causing of the accident by some person other than the accused were put to the complainant in his detailed cross examination. The same shows that the complainant had the ample opportunity for identifying the accused as sufficient time was available to the complainant for remembering the various features of the accused person. In my opinion the submission of the Ld. Counsel is without merit and is liable to be rejected in totality in view of the aforesaid finding of the court regarding the identification of the accused on the spot by the injured/complainant. In Vaikuntam Chandrappa and others v. State of Andhra Pradesh AIR 1960 SC 1340. The Hon'ble Apex court observed that the statement of the witness in the court is substantive piece of evidence but the purpose of TIP is to test that substantive piece of evidence and the safest rule is on oath testimony of the witness in the court regarding the identity of the accused who is stranger to the witness. But the same also requires corroboration with the earlier identification proceedings or any other evidence. The same principles was reiterated and followed in Budh Sen and others v. State of UP 1970 Cri.L.J. 1149, Ronny @ Ronald James alvaris and others v. State of Maharashtra, 1998 Cri.L.J. 1638 and Rajesh Govind Jagesha v. State of Maharashtra, 2000 Cri.L.J. 380.
FIR no. 199/1998 State v. Rajender Kumar Page no. 15 of 33
18. It is also well settled that the identification parades are held ordinarily at the instance of the investigating officer for the purpose of enabling the witness to identify the persons who are alleged to have been involved in the offence or to identify the properties which are the subject matter of the alleged offence, in ordinary course, belongs to the investigation stage and they serve to provide the investigating authorities with the material to assures themselves regarding the right directions of the investigation. The identification parade are generally conducted for ascertaining that the suspect persons are the real culprits. The same is observed by the Hon'ble Apex Court v. State of Jammu and Kashmir, 1972 Cri.L.J. 15 and Ravindra @ Ravi Bansi Gohar v. State of Maharashtra (1998) 6 SCC 609.
19. In Kanta Prasad v. Delhi Administration 1958 Cri.L.J. 1698 and State of Maharashtra v. Sukhdev Singh 1992 Cri.L.J. 3454 . the apex court settled the dust by observing that the mere failure to hold test identification parade, does not make the evidence of identification in the court inadmissible rather the same is very much admissible in law. Ordinarily identification of the accused for the first time in the court by the witness should not be relied upon, the same from its very nature, is inherently of a weak character unless the same is corroborated by his previous identification in the TIP or by any other evidence. FIR no. 199/1998 State v. Rajender Kumar Page no. 16 of 33 The purpose of the TIP is to test the observation, grasp , memory , Capacity to recapitulate of a witness and to ascertain if can be used as a reliable corroborated evidence of the witness identifying the accused at its trial in the court. If a witness identifies the accused in the court in the first time, the probative value to such uncorroborated evidence becomes minimal so much so that it becomes of a rule of prudence and not law and it is unsafe to rely on the deposition of such a witness. But the aforesaid oridinary rule is not the absolute rule and is subject to certain exceptions. In State of Maharashtra v. Sukhdev Singh (Supra) it was held that if a witness had any particular reason to remember about the identity of an accused, in that event the case can be brought under the exception and conviction can be based upon the solitary evidence of the identification of an accused in the court for a first time. Similarly in the case of Ronny @ Ronald James alvaris and others v. State of Maharashtra, 1998 Cri.L.J. 1638 it was held that where the witness had a chance to interact with the accused or that in a case where the witness had the opportunity to notice the distinctive feature of the accused which rends credence assurance to his testimony in the court. The evidence of the identification of the accused in the court for the first time by such witness cannot be thrown away merely because no identification parade was held. In the case of Rajesh Govind FIR no. 199/1998 State v. Rajender Kumar Page no. 17 of 33 Jagesha v. State of Maharashtra, 2000 Cri.L.J. 380 it was laid down that the absence of the TIP may not be fatal if the accused is sufficiently described in the complaint which leaves no doubt in the mind of the court regarding his involvement or the accused is arrested on the spot immediately after the occurrence and in either eventuality the evidence of a witness identifying the accused for the first time in court can form the basis for conviction without the same being corroborated by any other evidence. In view of the aforesaid discussion coupled with the fact that the complainant in his complaint Ex. PW3/A had specifically named the name, parentage and the address of the accused coupled with the identification of the accused in the court by the complainant/eye witness, further coupled with the contradictory defence of alibi by the accused in his statement u/s 281/313 Cr.P.C. In my opnion the identity of the accused as the driver of the offending vehicle has been proved beyond reasonable doubt.
20. It is also contended by the Ld. Counsel for the accused that the accused is not the permanent driver of the offending vehicle rather he offered his services to the various bus owners only in the cases of the emergency arising on account of the absence of their regular / permanent bus drivers and the accused was not driving the offending vehicle at the alleged time and the deceased was not hit by his bus in fact the accused was not at all present on the spot at the FIR no. 199/1998 State v. Rajender Kumar Page no. 18 of 33 relevant point of time rather he was attending the marriage ceremony of his relative in Jahirabad, Bulandshahar, UP.
21. The aforesaid plea of the alibi is taken by the accused for the first time in his statement u/s 281 r/w 313 Cr.P.C. and seems to be the after thought and the result of the legal tutoring as no suggestion of whatsoever nature regarding the same is put to any of the prosecution witnesses during their examination. Rather it was suggested to the PW-6, the investigating officer SI Mahender Singh that the deceased deboarded from the running bus from the front gate and came under the back wheel of the bus and this fact was intentionally not mentioned by the IO in the investigation. The said suggestion is categorically denied by the IO and the same shows that on the one hand the accused pleaded his absence at the spot but in the same breadth he is admitting the factum of the accident by him at the relevant point of time only with an exception that the said accident was not caused because of his rashness or negligence but because of the negligent act on the part of the deceased Gopi Nath by deboarding from the front gate of a running bus.
22. The complainant/eye witness PW-3 HC Narender had specifically deposed in his cross examination that the accident is caused by the accused and is not caused by any other vehicle. The Hon'ble Apex Court in Bhajjan Singh @ FIR no. 199/1998 State v. Rajender Kumar Page no. 19 of 33 Harbhajan Singh & others v. State of Haryana 2011 AIR (SC) 2552 have observed that the accused cannot raise an altogether new defence in the final arguments without cross examining the witnesses on the relevant aspect and without giving an opportunity to the witnesses to explain the same. In view of the aforesaid discussion coupled with the contradictory defence regarding the plea of alibi of the accused in his statement u/s 313 Cr.P.C. I do not find any force in the aforesaid arguments of the Ld. Defence Counsel.
23. The deposition of the complainant / eye witness coupled with the negation of the suggestions by PW-6 IO SI Mahender and the contradictory defence taken by the accused goes to establish beyond reasonable doubt the presence and involvement of the accused in the alleged accident and also establishes the identification of the accused beyond reasonable doubt.
RASHNESS OR NEGLIGENCE
24. The other most essential ingredients to be proved by the prosecution for the offence under sections 279/304A IPC against the accused is "Rash and Negligent Driving".
25. Before proceeding further, it is necessary to analysis what section 304A IPC say about rash or negligent driving. The section 304A IPC does not exactly specify what is meant by word rash and negligence. FIR no. 199/1998 State v. Rajender Kumar Page no. 20 of 33 As per Straight J. Criminal rashness " is doing a dangerous or Wanton Act with the knowledge that it is so, and that it may cause injury, but without intention to cause such injury, or with the knowledge that such injury will probably be caused". The criminality lies in running the risk or doing of such an act with recklessness or indifference as to its consequences. Criminal negligence "is the gross and culpable neglect or failure to exercise reasonable and proper care and precautions to guard against any injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the consequences has arisen, it was the imperative duty of the accused persons to have adopted".
26. These observation won the approval of the Hon'ble Supreme Court in Bala Chandra Vs. State of Maharashtra (AIR 1968SC1319). In the said case, the Hon'ble Supreme Court has observed :-
"Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precautions to guard against any injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the consequences has arisen, it was the imperative duty of the accused person to have adopted".
27. The same was again approved by the Hon'ble Delhi High Court in FIR no. 199/1998 State v. Rajender Kumar Page no. 21 of 33 Meghna Singh vs. State 2012 LE (DEL) 254 and by the Hon'ble Apex Court in Prabhakaran v. State of Kerela AIR 2007 Supreme Court 2376 "....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 failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.
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 FIR no. 199/1998 State v. Rajender Kumar Page no. 22 of 33 the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection".
28. In a case of rash or negligent driving, the test is whether the prosecution has proved that :-
(i)The accused was driving the vehicle in such a manner so as to create an obvious and serious risk of causing physical injury to some other person who might happens to be using the road or of doing substantial damages to the property.
(ii) In driving the vehicle in that manner the accused did so without having given any thought to the possibility of there being such risk or, having recognized that there was some risk involved, had nonetheless gone on to take it.
(iii) The rash or negligent act must be the proximate cause of injury of the injured.
29. In the matter of Chaman Lal Vs State AIR 1954, ALL 186, it was observed that Rashness and negligence are not the same things. Mere negligence cannot be construed to mean rashness. There are degrees of negligence and rashness and in order to amount to criminal rashness or criminal FIR no. 199/1998 State v. Rajender Kumar Page no. 23 of 33 negligence, one must find that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing of such an act with recklessness and indifference to its consequences.
The Criminal negligence is a gross and culpable neglect, that is to say, a failure to exercise that care and failure to take that precaution which, having regard to the circumstances, it was the imperative duty of the individual to take.
30. The question whether the accused's conduct amounted to rashness or negligence directly depends on the question whether in the given circumstances, the accused has acted prudently and reasonably and has taken the expected care and precaution in the given circumstances.
31. In the case of Rathna Shalvan v. State of Maharashtra 2001 1AD (CR) (SC 433) the Hon'ble Apex Court also has approved the aforesaid definition of criminal rashness and the criminal negligence in the aforesaid terms.
In Niranjan Singh Vs State (Delhi Administration), 1997 Cri LJ 336, it was observed that the main criteria for deciding whether the driving which lead to the accident was rash and negligent is not only speed of the offending vehicle but deliberate disregard to the obligations of its driver to drive with due FIR no. 199/1998 State v. Rajender Kumar Page no. 24 of 33 care and attention and taking a risk indifferent to harmful consequences resulting from it. In case of this nature, the test is whether the prosecution has prove that :-
(i) The accused was driving the vehicle is such manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damages to the property.
(ii) In driving the vehicle in that manner the accused did so without having given any thought to the possibility of there being any such risk or, having recognized that there was some risk involved, had nonetheless gone on to take it, and,
(iii) The rash or negligent act of the accused was the proximate cause of the injury of the injured.
" To impose criminal liability under section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and sufficient cause without the intervention of the author's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non".
32. In Mahammed Aynudin V. state of A. P., AIR 2000 SC 2511, It was also observed:-
FIR no. 199/1998 State v. Rajender Kumar Page no. 25 of 33 Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution for guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of the vehicle to adopt such reasonable and proper care and precaution".
Negligence is a tort as well as a crime and can be used for the purpose of fastening the defendant with the liability under a civil law and at times under the criminal law. To fasten the liability in a criminal law, the degree of the negligence has to be higher than that of negligence to fasten the liability for damages in civil law. The essential ingredients mens rea cannot be excluded from the consideration when a charge in a criminal court consist of criminal negligence. In order to hold the existence of criminal rashnesses or criminal negligence, it shall have to be found out that the hazard was of such a degree that the injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences.
33. Now, the stage is set to apply the aforesaid legal position to the facts of present case and the testimony of the complainant/eye witness is most relevant for proving the rashness and negligence of the accused. FIR no. 199/1998 State v. Rajender Kumar Page no. 26 of 33
34. The complainant HC Narender Kumar is examined as PW-3 and has categorically deposed that on 29.05.2004 at around 11.25 AM he was present at the service road of Videocon Shop no. 116 Raja Garden and had seen one bus bearing no. DL1PA0500 of route no. 846 under DTC was coming from the side of the Punjabi Bagh and was going towards Tilak Nagar. The same being driven by the accused Rajender in a rash and negligent manner in a service road in front of the videocon shop, Raja Garden. The accused had hit his bus against a person who was crossing the road from the Basai Dara Pur to Raja Garden. The said person fell down and became unconscious due to the impact of the bus and was dragged at some distance. He got the bus stopped. The witness has further deposed that the accused was apprehended by him on the spot and the accused was driving his bus negligently in a high speed and the accused had not bothered to slow down the bus despite noticing the crossing of road by the deceased. The complaint Ex. PW3/A is duly proved by the Complainant.
35. The testimony of this witness clearly shows that the accused has hit his bus bearing no. DL1PA0500 against the deceased by driving the same in a rash and negligent manner in a service road as the accused has failed to take the proper and reasonable care by driving the bus in the service lane and has also failed to stop / reduce the speed of the offending vehicle despite noticing the crossing of the road by the deceased. The presence of the offending vehicle on FIR no. 199/1998 State v. Rajender Kumar Page no. 27 of 33 the spot is not in dispute as the accused himself has admitted the same in his statement u/s 281/313 Cr.P.C. by stating that the accident was caused by the offending vehicle. The plea of the alibi taken by the accused will not come to his rescue in the present case as the accused has failed to substantiate his aforesaid plea as he has failed to examine any witness in his defence despite the accordance of the ample opportunities for the same. Apart from it the accused has failed to take the said plea / defence during the examination and cross examinations of the prosecution witnesses as no suggestion qua the non-driving of the vehicle by the accused were put to any of the prosecution witnesses rather the accused has taken the defence that the deceased has lost his life due to his own negligence as the deceased had come under the back wheel of the bus when he deboarded from the front gate of a running bus.
36. Ld. Defence Counsel has argued that the deposition of the complainant/eye witness PW-3 suffered from various contradictions and the complainant has not deposed in terms of his complaint Ex. PW3/A and had given an improved statement in the court and the same cannot be believed being an outcome of the after thought.
37. The evidence of the eye witness could not be brushed aside due to minor variations. Mere contradictions on the trivial matters could not render his depositions untrustworthy. Further, it is well settled principle of law that the FIR no. 199/1998 State v. Rajender Kumar Page no. 28 of 33 improvements made by the witness in his testimonies will be fatal only if the same changes the basic / fundamental character of the case. The testimony of the witness can be believed where the witness has only tried to explain something and the same does not changes the fundamental nature of the case. In the present case there seems to be no contradiction in the deposition of the complainant. In view of the aforesaid observations the submissions of the counsel does not find any favour with the court as the aforesaid deposition of the witness cannot be assumed to change the basic / fundamental nature of the case.
38. I have perused the deposition of PW-3 complainant / eye witness HC Narender Kumar and I find no merit in the arguments of the Ld. Counsel as the deposition of the complainant is quite consistent, truthful, creditworthy and corroborated by the other witnesses. This witness has withstood the cross examination and there is nothing in it which can impeach his credit or discard his testimony or to doubt the veracity of the deposition. This witness has correctly deposed about the date of the incident, the manner in which the accident occurred and the presence of the witness on the spot is proved therefore, the aforesaid evidence and the case law discussed above are sufficient to arrive at a conclusion that the act of the accused in driving the offending bus in the service road and not stopping and reducing its speed despite noticing the crossing of the FIR no. 199/1998 State v. Rajender Kumar Page no. 29 of 33 road by the deceased amounts to the rash and negligent act as the same tantamounts to the deliberate disregard by him to the obligations of a driver to drive the vehicle with due care and attention. Therefore, there is no doubt that the accused has hit the deceased by rash and negligently driving his vehicle in the service lane.
39. It is a common or golden principle that while driving a vehicle like the bus the driver of the vehicle should be very careful because the nature of the vehicle is such that if the same is not properly controlled, it can turn into a monster with huge casualties. The accused was fully aware that the deceased was also crossing the road and it was his duty to be careful while negotiating his way during the crossing of the road by the the deceased. The same coupled with the aforesaid discussion proves the rash and negligent driving of the accused. Under section 279 IPC what constitute an offence is the rash and negligent driving of the vehicle or riding on a public way so as to endanger human life or to be likely to cause hurt or injury to another person.
CAUSE OF INJURIES
40. The third most essential ingredients to be proved by the prosecution for securing the conviction of the accused for the offence punishable u/s 279/304A IPC is that the death of the person is the direct result of rash and negligent act of the accused. The prosecution had alleged that the deceased FIR no. 199/1998 State v. Rajender Kumar Page no. 30 of 33 Gopinath was hit by the accused by driving the offending vehicle in rash and negligent manner on a service road. The deceased fell down and became unconscious due to the impact of the offending vehicle and was also dragged to a certain distance. The site plan Ex. PW3/C is proved by PW-3 HC Narender by deposing that the same was prepared by the IO at his instance wherein the point A reflect the place at which the accused had struck the offending bus against the deceased Gopinath. The point B shown in the said site plan shows the place where the deceased was found lying after being dragged by the offending vehicle and the point C reflects the place of the offending vehicle after the accident. The site plan reflects the distance between point A to point B as 14 feets and from point A to point C as 15 feets. The same shows the force of the impact of the offending vehicle on the deceased and also shows that the accused was dragged to a distance of approximately 14 feet from the place of the accident by the offending vehicle. The same has resulted into the death of the deceased who had expired prior to his admission in the hospital vide post mortem report Ex. PW5/A which shows that the deceased was brought dead to the causality of DDU hospital with the alleged history of road traffic accident. Dr. Komal Singh HOD Forensic Medicine has proved the post mortem report of the deceased as Ex. PW5/A and the same reflect the cause of death of the deceased as Hemorrhagic Shock due to injury of the vital organs of the body in a road traffic accident. The FIR no. 199/1998 State v. Rajender Kumar Page no. 31 of 33 post mortem report of the deceased is supporting the prosecution version regarding the death of the deceased by the impact of the offending vehicle and his subsequent dragging to a distance of approximately 14 feet by the offending vehicle.
41. PW-5 Dr. Komal Singh who has proved the post mortem report of the deceased as Ex. PW5/A was not at all cross examined by the counsel for the accused and the testimony of the witnesses unrebutted. The law is well settled that if a witness is not cross examined on a particular issue by the opposite party, the evidence of the witness ought to be accepted. The reliance is placed on the judgment of Sarwan Singh vs. State of Punjab (2003) 1SCC 240 wherein it was observed that "it is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross examination it must follow that the evidence tendered on that issue ought to be accepted".
42. In view of the aforesaid findings this Court is of the considered view that the prosecution has successfully travelled the distance from 'may have' to 'must have' and have proved beyond reasonable doubts that on 29.05.1998 at about 11.25 AM at Service Road, Raja Garden in front of Shop no. 116, within the jurisdiction of PS Moti Nagar, the accused Rajender was found driving a Bus bearing no. DL1PA0500 of route no. 846 on a public way in a rash and negligent FIR no. 199/1998 State v. Rajender Kumar Page no. 32 of 33 manner so as to endanger human life and personal safety of others and hit the same against a pedestrian namely Gopi Nath and caused his death not amounting to the culpable homicide and thereby committed an offence punishable u/s 279/304A IPC.
43. Accordingly, the accused Rajender Kumar stands Convicted for commission of offence punishable U/s 279/304A IPC.
44. Convict be heard separately on the quantum of sentence.
45. Copy of judgment be supplied to the convict free of cost.
Dictated, Signed and Announced in the (Sunil Kumar Sharma)
Open Court on 27.05.2013 Metropolitan Magistrate
(West-10)/Tis Hazari Court/Delhi
It is certified that this judgment contains 33 (thirty three) pages and each page bears my signature.
(Sunil Kumar Sharma) Metropolitan Magistrate (West-10)/Tis Hazari Court/Delhi FIR no. 199/1998 State v. Rajender Kumar Page no. 33 of 33