Delhi District Court
State vs . Raju Prasad Mehto on 29 June, 2011
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IN THE COURT OF Ms. CHETNA SINGH:MM03(SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
STATE Vs. Raju Prasad Mehto
FIR No.04/2006
U/s : 279/338 IPC
P.S. : Vasant Vihar
JUDGMENT
1.FIR No. : 04/2006
2.Date of the Commission of the offence : 01.01.2006
3.Name of the accused : Raju Prasad Mehto S/o
Sh. Rupan Mehto R/o
A230, Sector19, Noida.
4.Name of the complainant : Deepak Kumar S/o Sh.
Kishore Kumar Jha R/o
338, Munirka Village,
Delhi (Permanent
Address: Ghoghardiha
District Madhubani,
Bihar).
5.Offence complained of : 279/338 IPC
FIR No04/2006 State Vs.Raju Prasad Mehto Under Section:279/338 IPC
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6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted
8.Date of final order : 29.06.2011
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
The story of the prosecution is that on 01.01.2006 at about 08:00 p.m. near DTC Bus Stand, Outer Ring Road, Sector4, R.K. Puram, New Delhi, falling within the jurisdiction of Police Station Vasant Vihar, the accused Raju Prasad Mehto was driving the Tata Sumo bearing number DL1VB0787 in a rash and negligent manner and while driving the said vehicle in such a manner, the accused hit against the pedestrian/complainant namely Sh. Deepak Kumar S/o Sh. Kishore Kumar and caused grievous injuries on the person of the said complainant.
On the basis of the said allegations and on the basis of the complaint of the complainant Sh. Deepak Kumar, an FIR bearing number 4/2006 under section 279/337 IPC was lodged at Police Station Vasant Vihar on 02.01.2006 at 12:05 a.m. After investigation, chargesheet under section 173 Cr.P.C was filed before the court.
FIR No04/2006 State Vs.Raju Prasad Mehto Under Section:279/338 IPC 3 On the basis of the chargesheet, a notice for the offences punishable under section 279/338 IPC was framed against the accused Raju Prasad Mehto and read out to the said accused person, to which the accused pleaded not guilty and claimed trial on 27.11.2008.
JUDICIAL PRONOUNCEMENT To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that to beyond any reasonable doubt. The three essential ingredients are as follows: (1)That the accident actually took place.
(2)That the accident took place due to rash and negligent driving.
(3)That the accused was the person who was driving the vehicle at the relevant time.
These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Blacks Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by H.L.A.Hart in Punishment and Responsibility the FIR No04/2006 State Vs.Raju Prasad Mehto Under Section:279/338 IPC 4 dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently.
"[A] careful consideration is needed of the difference between the meaning of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The word 'negligently', both in legal and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash'as doing something that may not be sensible without first thinking about the possible results.
Elaborating further, in State of H.P. vs. Piar Chand, Cr. Ap peal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, FIR No04/2006 State Vs.Raju Prasad Mehto Under Section:279/338 IPC 5 while dealing with the meaning of the expression " rashness " and " negli gence " held as follows :
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a indi vidual."
The court would also like to refer to a very recent judgment of the Honorable Supreme Court of India elaborating further the requirements of section 304A of IPC. Quoting from Rathnashalvan v. State of Karnataka, (SC) 2007 A.I.R. (SC) 1064.
"Section 304A 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 304A. 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 FIR No04/2006 State Vs.Raju Prasad Mehto Under Section:279/338 IPC 6 of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused."
As noted above, " Rashness " consists in hazarding a dangerous or 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 conse quences. 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 gen erally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imper ative duty of the accused person to have adopted.
8. The distinction has been very aptly pointed out by Holloway, J. in these words :
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor FIR No04/2006 State Vs.Raju Prasad Mehto Under Section:279/338 IPC 7 has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness.
The imputability arises from the negligence of the civic duty of circumspection." (See In Re :
Nidamorti Nagabhusanam 7 Mad. HCR 119)"
APPRECIATION OF EVIDENCE: The prosecution in order to prove the above said allegations against the accused has examined following formal witnesses:.
PW1 Dr. Yatish Aggarwal had exhibited the XRay Report vide Ex.PW1/A prepared and signed by Dr. Saurabh Gupta.
The said witness was not crossexamined by Ld. Counsel for the accused, despite opportunity being given.
PW3 Dr. S.K. Chandan had prepared and signed the MLC of the injured. MLC is Ex.PW2/A. The said witness was not crossexamined by Ld. Counsel for th accused, despite opportunity being given.
PW4 HC Bhagat Ram in his examinationinchief has stated that FIR No04/2006 State Vs.Raju Prasad Mehto Under Section:279/338 IPC 8 on 01.01.2006 he was posted as Constable at Police Station Vasant Vihar and on that day on receipt of call, he accompanied ASI Raghbir Singh to CNG Petrol Pump, O.P. Marg where he found accused. Tata Sumo bearing number DL1VB0787 was seized vide seizure memo Ex.PW4/A. The said witness further stated that he was entrusted with Tata Sumo and driver Raju Prasad Mehto. Personal search memo is Ex.PW4/B and arrest memo is Ex.PW4/C. The said witness was crossexamined by Ld. Counsel for the accused, wherein he denied the suggestion of Ld. Defence Counsel that he had not joined the investigation at any point of time or that he was deposing falsely at the instance of IO and other senior officials.
PW5 Sh. Rajiv Ranjan Bhatia has deposed that his brother Sh. Naveen Kumar was registered owner of Tata Sumo No. DL1VB0787 and same was released to him on superdari. He further stated that the accused Raju Prasad Mehto was driver in the aforesaid Tata Sumo at the time of occurrence.
The said witness was crossexamined by Ld. Counsel for the accused, but nothing incriminating is found in his cross.
PW6 HC Narender Singh in his examinationinchief has stated that on 01.01.2006 he was posted as Head Constable on PCR Van No.1498 and at about 08:26 p.m on receipt of call, he had apprehended the accused along with Tata Sumo No. DL1VB0787 while he was escaping after committing an accident at CNG Pump, O.P. Marg, Munirka. The said witness further stated FIR No04/2006 State Vs.Raju Prasad Mehto Under Section:279/338 IPC 9 that the accused along with Tata Sumo was handed over to ASI Raghbir.
The said witness was crossexamined by Ld. Counsel for the accused, wherein he denied the suggestion of Ld. Defence Counsel that he had not joined the investigation at any point of time PW7 Retired ASI Virender Singh had registered the FIR of the present case vide Ex.PW7/A and his endorsement on rukka is Ex.PW7/B. PW8 SI Raghbir Singh has deposed that on 01.01.2006 he was posted as ASI at Police Station Vasant Vihar. The said witness further stated that on that day on receiving of DD No.45A (Mark A), he along with Const. Bhagat Ram reached at the spot, i.e., near CNG Pump Sector3, R.K. Puram located in front of Outer Ring Road where PCR Van Eagle 95 along with Incharge HC Narender Singh met him and produced the accused along with one Sumo Car bearing number DL1VB 0787. The said witness further stated that HC Narender Singh told him that the accused was driving the aforesaid vehicle in a rash and negligent manner and after hitting the pedestrian, the accused was trying to fled away from the spot and the accused was apprehended by HC Narender Singh. The said witness recorded the statement of the injured namely Deepak vide Ex.PW2/A. The said witness prepared rukka vide Ex.PW8/A. Site plan was prepared by the said witness at the instance of the injured vide Ex.PW8/B. The said witness seized the offending vehicle and DL of the accused vide memo Ex.PW4/A and Ex.PW8/B. DL of the accused is FIR No04/2006 State Vs.Raju Prasad Mehto Under Section:279/338 IPC 10 Ex.PW8/C. The accused was arrested at the instance of the complainant vide Ex.PW4/C and his personal search was carried out vide memo Ex.PW4/B. The said witness further stated that during the course of investigation, he recorded the statement of the witnesses and obtained the result on MLC, collected mechanical inspection report and after investigation of the case, he prepared chargesheet. He identified the accused during his deposition before the court.
The said witness was crossexamined by Ld. Counsel for the accused, wherein he denied the suggestion of Ld. Counsel for the accused that he was deposing falsely and that the accused was wrongly implicated in the present case.
The only witness who could support the story of the prosecution and who could deposed that the accused was driving the offending vehicle in a rash and negligent manner is the complainant/injured namely Sh. Deepak Kumar S/o Sh. Kishore Kumar, who in his examinationinchief has deposed that on 01.01.2006 at about 08:00 p.m. while he was crossing Munirka bus stand, the accused while driving his Tata Sumo bearing number DL1VB0787 in a very rash and negligent manner hit him from the left side of his body, due to the impact of which he fell down and came under the bus. In his chief, he firstly deposed that he had not seen the driver at the time of the accident, however, in the very next line, he deposed that he had seen the driver Raju Prasad, who was present in the court at Patiala House Courts when he received summons FIR No04/2006 State Vs.Raju Prasad Mehto Under Section:279/338 IPC 11 as a witness. Further, in the chief the witness correctly identified the accused present in the court at the relevant time and also recollected the complete and correct number of the offending vehicle bearing number DL1VB0787. The identity of the accused and the number of the offending vehicle have been correctly identified by the witness, who is the injured himself.
However, it is important to note that an essential ingredient for bringing home the guilt of the accused under section 279/338 IPC, is the fact that the accident took place due to the rash and negligent driving of the accused. For this purpose the main witness/complainant PW2 Deepak Kumar has only deposed that the Tata Sumo bearing number DL1VB0787 was being driven by the accused in a very rash and negligent manner. However, no details leading to the accident have been mentioned by him. There is nothing on record to show as to how the accused was rash and negligent in driving the vehicle. A perusal of the site plan, which is Ex.PW2/C, also reveals that point A is the place where the accident took place which is in front of the DTC Bus Stand and the offending vehicle was coming from the opposite direction. Clearly there is no zebra crossing for crossing the road. No details as regards the speed of the vehicle have been given by the only eye witness in the present matter.
Rashness and negligence are not mere words, but it is to be proved before the court of law by producing the relevant facts, which disclosed the rashness and negligence. Even the Investigating Officer has not clarified what FIR No04/2006 State Vs.Raju Prasad Mehto Under Section:279/338 IPC 12 was the rashness or negligence on the part of the offender/accused. No details in the site plan as to whether the offending vehicle jumped the red light or violated the traffic rules or overtook another vehicle from the wrong side or overtook another vehicle without giving any proper indication. The IO has also not clarified in his deposition as to what was the approximate speed of the offending vehicle at the time of the accident. Only the approximate speed can help the court to arrive at a conclusion whether that speed in the given circumstances amounts to any rashness or negligence.
Merely because the accused was driving the offending vehicle which hit the injured, does not allow the court to jump to the conclusion that the accident must have taken place on account of rashness and negligence of the accused. Clearly, as the site plan reveals there was no zebra crossing on the road for the crossing of the road by the injured. All road users are supposed to obey the traffic rules and if someone violates then he does so at his own risk and the driver of the offending vehicle cannot be held liable for the negligence of the injured.
As there is no evidence as regards the rashness and negligence of the accused, the ingredients of section 279/338 IPC are not made out and benefit of doubt has to be given to the accused and the accused Raju Prasad Mehto is hereby acquitted.
As per section 437A of the Cr.P.C, as amended vide the FIR No04/2006 State Vs.Raju Prasad Mehto Under Section:279/338 IPC 13 Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 29.06.2011 (CHETNA SINGH) MM03(South)/29.06.2011 Certified that this judgment contains 13 pages and each page bears my signatures.
(CHETNA SINGH) MM03(South)/29.06.2011 FIR No04/2006 State Vs.Raju Prasad Mehto Under Section:279/338 IPC