Delhi District Court
Fir No. 43/2012 Ps Sonia Vihar State vs . Har Govind Page No. 1 Of 8 on 21 April, 2018
IN THE COURT OF MS. BHAWANI SHARMA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (NORTH EAST),
KARKARDOOMA COURTS, DELHI.
(Judgment by Metropolitan Magistrate u/s 355 Cr.P.C)
Serial/CIS Number of the
Case
FIR No 43/2012
Police Station Sonia Vihar
Date of Commission of 23.03.2012
Offence
Date of Institution 13.09.2013
Name of Complainant (if Govind Singh @ Gopi S/o Ganga Singh
any) R/o C-1/618, Gali No. 3, II Pushta, Sonia
Vihar, Delhi.
Name of Accused Person Har Govind S/o Maya Ram R/o Q.No. 1,
and his Parentage and Type III, PS Maurya Enclave, Pitampura,
Residence Delhi.
Offence Complained of or 279/304-A IPC
Proved
Plea of accused and his Pleaded Not Guilty.
examination (if any) Claimed to be innocent and stated that he
had not committed such offence.
Final Order Acquitted u/s 279/304-A IPC
Date of such Order 21.04.2018
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1.ALLEGATIONS The story of the prosecution is that on 23.03.2012 at about 10 AM at Wazirabad road between Nanaksar and Wazirabad Bridge, near incline of pontoon pool, accused Har Govind was driving vehicle bearing No. DL- 8SAM-4310 in a rash and negligent manner and he struck against one Gopal Singh and caused fatal injuries on his person thereby causing his death. Thus, accused Har Govind is alleged to have committed offence punishable under section 279/304-A IPC.
FIR No. 43/2012 PS Sonia Vihar State Vs. Har Govind Page No. 1 of 8
2. FIR On the basis of above facts an FIR bearing No.43/2012 was registered in the PS Sonia Vihar against the accused. Statement of witnesses were recorded, site plan was prepared, the accused were arrested and after completion of all necessary investigation challan U/s 173 Cr. P.C was presented in the court for trial on 13.09.2013.
3. CHARGE The accused was summoned by the Court to face the trial and copy of challan as required under section 207 Cr. P.C. was supplied to accused persons.
On hearing arguments and on perusal of record, prima facie notice for the offence under section 279/304-A IPC was made out against the accused. Accordingly, notice was framed against the accused on 08.04.2015. Thereafter, case was fixed for prosecution evidence.
4. JUDICIAL RESOLUTION To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:-
a) That the accident actually took place.
b) That the accident took place due to rash and negligent driving.
c) That the accused was the person who was driving the vehicle at the relevant time.
These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However, as per Blacks Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances. Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by H.L.A. Hart in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently.
"[A] careful consideration is needed of the difference between the FIR No. 43/2012 PS Sonia Vihar State Vs. Har Govind Page No. 2 of 8 meaning of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The word 'negligently', both in legal and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash' as doing something that may not be sensible without first thinking about the possible results.
Elaborating further, in State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression " rashness " and "
negligence" 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 individual."
The court would also like to refer to a judgment of the Honorable Supreme Court of India elaborating further the requirements of section 304-A of IPC. Quoting from Rathnashalvan v. State of Karnataka, (SC) 2007 A.I.R. (SC) 1064.
"Section 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 FIR No. 43/2012 PS Sonia Vihar State Vs. Har Govind Page No. 3 of 8 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 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 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.
8. The distinction has been very aptly pointed out by Holloway, J. in these words :
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection." (See In Re : Ni damorti Nagabhusanam 7 Mad. HCR 119)".
5. PROSECUTION EVIDENCE In order to prove the above said allegations, the prosecution has cited 15 witnesses, of which only 04 witnesses has been examined.
PW-1 Raju Eye witness
FIR No. 43/2012 PS Sonia Vihar State Vs. Har Govind Page No. 4 of 8
PW-2 Sudhir Kumar Another eye witness.
PW-3 Govind Singh Complainant/eye witness.
Bisht
PW-4 Manish Son of the deceased Gopal Singh.
5.1 On 19.03.2018 statement of the accused was recorded u/s 313 Cr. P.C. wherein he denied the allegations of prosecution, claimed innocence and wished not to lead evidence in his defence.
5.2 I have heard the Ld. APP for the state and accused and have also carefully perused the entire record and the relevant provisions of the law.
6. The case of the prosecution is that on 23.03.2012 at about 10 AM at Wazirabad road between Nanaksar and Wazirabad Bridge, near incline of pontoon pool, accused Har Govind was driving vehicle bearing No. DL- 8SAM-4310 in a rash and negligent manner and he struck against one Gopal Singh and caused fatal injuries on his person thereby causing his death. Out of all PWs, it is the testimony of PW-1 & PW-2 who are the eye witnesses to the incident and testimony of PW-3 who is the eye witness/complainant in the present case, which is relevant.
7. All the three witnesses namely PW-1 Raju, PW-2 Sudhir Kumar and PW-3 Govind Singh Bisht have turned hostile and did not support the prosecution case at all. They all deposed on the same lines and even failed to identify the accused. The material part of cross examination of PW-1 and PW-2 is :
"It is wrong to suggest that when we crossed Pontoon pool......when one motorcycle bearing no. DL-8SAM-4310 which is being driven by Hargovind (whose name later on revealed) hit Gopal Singh...... It is wrong to suggest that the accused driver was driving the motorcycle bearing no. DL-8SAM-4310 in rash and negligent manner and caused the accident."
Attention of these witnesses was drawn towards the accused and all of them failed to identify the accused driver.
7.1 From the testimony of witnesses, there is nothing in the testimony which is incriminating against the accused. Thus, prosecution has thus FIR No. 43/2012 PS Sonia Vihar State Vs. Har Govind Page No. 5 of 8 failed to prove through the testimony of the eye witnesses that such incident had ever took place. The remaining witnesses are formal/police witnesses, the testimony of whom cannot be made basis for conviction of the accused.
7.2 In the opinion of the court, the present case is a fit case where the court should exercise its power under section 258 of Cr. P.C and stop the proceedings qua offences u/s 279/304A IPC as continuing with trial will not only be wastage of state money rather it will also be wastage of judicial time and harassment to the accused persons.
In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation-2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. Section 258, in Chapter XX of Cr.P.C., on Trial Summons - cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) FIR No. 43/2012 PS Sonia Vihar State Vs. Har Govind Page No. 6 of 8 "30.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596) and Raj Deo Sharma (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:-
(1) The dictum in A.R. Antulay's case is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and re-affirm the said propositions. (3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made. (4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted.
Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused. (5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary - quantitatively and qualitatively - by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied) In "Pankaj Kumar v. State of Maharashtra" AIR 2008 SUPREME COURT 3077 (Coram : 2 C. K. THAKKER AND D. K. JAIN, JJ.)the Honorable Supreme Court, while relying upon the aforesaid judgment, observed:
"16. Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" A Registered Society Vs. Union of India (UOI) and Ors., "Common Cause", A Registered Society Vs. Union of India and Ors., Raj Deo Sharma Vs. State of Bihar and Raj Deo Sharma II Vs. State of Bihar gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a seven-Judge Bench of this court in P. Ramachandra Rao Vs. State of Karnataka. Speaking for the majority, R.C. Lahoti, J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in FIR No. 43/2012 PS Sonia Vihar State Vs. Har Govind Page No. 7 of 8 the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the factsituation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under Section 482 Cr. P.C. and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgments were held to be not in consonance with the legislative intent."
(emphasis supplied) 7.3 Accordingly, in the opinion of the court, in the light of the above cited judgments, the court needs to exercise its power under section 258 Cr.P.C qua offences U/s 279/304A IPC to make the ends of justice meet.
8. FINAL ORDER In view of the reasons above, I hereby hold that prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, accused Har Govind is acquitted of the offences punishable u/s 279/304A IPC.
I am aware of the Delhi Victim Compensation Scheme 2015. The Secretary, DLSA, North East to consider the grant of compensation by following the appropriate procedure as per the scheme. Copy of this order be sent to DLSA, North East.
As per section 437-A of the Cr. P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, personal bond and surety bond of the accused are further extended/accepted for another 6 months from today.
9. File be consigned to Record Room after necessary compliance.
ANNOUNCED IN THE OPEN COURT BHAWANI Digitally signed by
BHAWANI SHARMA
ON 21st day of April 2018
SHARMA Date: 2018.04.21
14:16:39 +0530
(BHAWANI SHARMA)
ACMM(North East)/KKD/21.04.2018
Certified that this judgment contains 8 pages and each page bears my signatures.
Digitally signed by BHAWANI BHAWANI SHARMA
SHARMA Date: 2018.04.21
14:16:52 +0530
(BHAWANI SHARMA)
ACMM(North East)/KKD/21.04.2018
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