Delhi High Court
Ras Bihari Singh vs State ( Nct Of Delhi ) on 24 November, 2017
Author: Sangita Dhingra Sehgal
Bench: Sangita Dhingra Sehgal
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Order reserved on 16th November, 2017
Order pronounced on 24th November, 2017
+ CRL.REV. P. 805/2016
RAS BIHARI SINGH ..... Petitioner
Through: Mr. Pranesh, Advocate.
versus
STATE ( NCT OF DELHI ) ..... Respondent
Through: Mr. Amit Ahlawat, APP for the State
with SI Deepak, PS-Nariana.
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
1. The present Criminal Revision Petition has been filed under
Section 397 read with Section 482 Cr.PC assailing the order dated
22.11.2016 passed by the Additional Sessions Judge-03, Patiala
House Courts, New Delhi in Criminal Appeal No. 8706/2016 titled
as „Ras Bihari Singh Vs. State" whereby the conviction order dated
25.05.2016 and order on sentence dated 30.06.2016 passed by the
Metropolitan Magistrate-3, Patiala House Court, New Delhi, was
upheld.
2. The case of the prosecution in nutshell is that on 27.09.2010, the
accused was driving a vehicle i.e. Innova Car bearing registration
No. DL-4-CAE-4071 in a rash and negligent manner, hit Parul, an
infant girl aged about 9 months who later died. An FIR has been
CRL. REV. PET. 805/2016 Page 1 of 14
registered in the instant case on the complaint of mother of the
deceased girl.
3. On completion of the trial, the Trial Court (Metropolitan
Magistrate) held the petitioner guilty for the offence punishable
under Section 279/304A IPC and sentenced him to undergo
rigorous imprisonment for three months with fine of Rs.1,000/- for
the offence punishable under Section 279 IPC fine and rigorous
imprisonment for one year and fine of Rs.10,000/- for the offence
punishable under Section 304A IPC. Fine amount has been
deposited by the petitioner. The petitioner preferred an appeal
before the Court of Session against the aforesaid order and the
Court of Session vide its order dated 22.11.2016 modified the
sentence to the extent that appellant shall undergo four months
rigorous imprisonment for the offence punishable under Section
279/304A IPC collectively subject to appellant shall pay
Rs.50,000/- to the mother of deceased child as compensation
failing which he shall undergo one year simple imprisonment.
4. Assailing the impugned judgment, learned counsel for the
petitioner contended that judgment of conviction and sentence
awarded by the Trial Court are not sustainable and deserve to be
quashed and set-aside as they are not based on correct appreciation
of evidence available on record; that both the Courts below have
fallen in grave error in holding that Parul died due to rash and
negligent driving of the accused; that testimony of PW-4, mother
of the deceased, claiming to have seen the accident, is highly
doubtful; that no independent person has been cited in the list of
CRL. REV. PET. 805/2016 Page 2 of 14
witnesses; that the prosecution failed to bring on record that the
petitioner was driving the offending vehicle in such a rash and
negligent manner which led unfortunate death of an infant girl; that
the petitioner was willing to take the victim to the hospital but the
complainant refused to do so and the victim was taken to the
hospital after delay of 5-6 hours and she died due no negligence of
her mother as she did not get proper treatment on time; that the
prosecution failed to prove the Post Mortem Report of the
deceased.
5. Refuting the arguments advanced on behalf of the petitioner,
learned APP for the State vehemently opposed the present petition
and contended that the judgments rendered by the Trial Courts
does call for any interference by this Court; that the issues raised
by the learned counsel for the petitioner has already been dealt by
the Trial Court and while exercising its revisionary powers under
Section 397 Cr.P.C. to re-appreciate the evidence, this Court has
very limited powers, especially when it stands duly proved that
impugned judgment have been passed after dealing with evidence
meticulously by the Trial Court; that the prosecution has been able
to prove its case beyond reasonable doubt that the accident in
question occurred due to rash and negligent act of the petitioner;
that PW4, mother of the deceased, who was present at the time of
the accident categorically deposed that the accident had occurred
due to rash and negligent driving by the petitioner.
CRL. REV. PET. 805/2016 Page 3 of 14
6. I have heard the learned counsel for the parties and perused the
record.
7. At the outset, before delving into merits of the submissions made
by learned counsel for the parties, I find deem it appropriate to
discuss the relevant Section involved in the instant case. The
petitioner has been convicted and sentenced for the offences
punishable under Section 279 and 304A IPC.
8. Section 279 IPC deals with rash and negligent driving, which reads
as under:
"S. 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"
9. To constitute an offence under Section 279 IPC, it must be shown
that the person was driving the vehicle in a rash or negligent
manner. Criminal negligence or criminal rashness is an important
element of the offence under Section 279 IPC.
10. Section 304A reads as under:
"304A. Causing death by negligence.--
Whoever causes the death of any person by
doing any rash or negligent act not amounting
to culpable homicide, shall be punished with
imprisonment of either description for a term
CRL. REV. PET. 805/2016 Page 4 of 14
which may extend to two years, or with fine, or
with both."
11. In a road accident case, to convict a person for the offence
punishable under Section 304-A IPC, the prosecution is required to
bring on record the basic requirement of the said Section i.e. "Rash
or Negligent Act" with following conditions:
1) There must be death of the person in question;
2) that the accused must have caused such death; and
3) that such act of the accused was rash or negligent and
that it did not amount to culpable homicide.
12. In Rathnashalvan vs. State of Karnataka : AIR 2007 SC 1064, the
Apex Court observed that:
"5. 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 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
CRL. REV. PET. 805/2016 Page 5 of 14
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.
6. 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.
13. Section 304A which deals with unintentional death caused by
doing any rash or negligent act of the offender. The applicability
of this Section is limited to rash or negligent acts which cause
death but fall short of culpable homicide amounting to murder or
culpable homicide not amounting to murder. To bring an offence
within the ambit of Section 304A, the prosecution is required to
bring on record that the act was done by an accused and the death
was caused due to rash and negligent act.
CRL. REV. PET. 805/2016 Page 6 of 14
14. The instant case of the prosecution rests upon the sole testimony of
PW-4/Ram Dulari, mother of the deceased, who is stated to be a
sole eye witness of the alleged accident. In her complaint, she
stated that she is a labourer and on the day of incident, she was
working in Kothi No. A-21, Naraina VIhar and had left her
daughter near the flower pots of the Kothi No. A-32, Nariana
Vihar, which is just opposite across the road to Kothi No. A-21. At
about 11:30 a.m., she saw that the offending vehicle took a right
turn and hit her daughter who was playing on the pavement, she
rushed to her daughter, who was unconscious. The petitioner
stopped the car and took the complainant and her injured daughter
to Bahal Hospital, Nariana where doctor advised them to take the
injured to a Government Hospital. The complainant asked the
petitioner to drop them to her house. The petitioner dropped them
and gave his name and told her that he was driver in New Era
Schoool at A-32, Nariana Vihar. After sometime, the complainant
informed her husband about the accident and he came home at
about 2-2:30 p.m., who later called police and the PCR took her
daughter to the hospital where she was declared brought dead.
15. PW-4 in her examination narrated the entire incident as under :
"xxxx I kept my daughter on the side of the
road where Gamla etc. were put on in front of
A-32 which was just opposite to A-21 and I
started doing the construction work by giving
the sand to other labourer. At about 11:30 AM
while I was working in the building and I saw
from there one car coming and the said car hit
CRL. REV. PET. 805/2016 Page 7 of 14
my child and then stop after going some
distance. The accused was saying some
labourer who was cutting the iron rods (saria)
when he hit my child. Thereafter, I came down
from the building and took my daughter in my
lap and then told the driver of the car who was
also present there to take my daughter in the
hospital. Thereafter, the accused took the child
to the hospital after consulting his owner and
firstly he took us to Bhel Hospital and thereafter
Bhel Hospital authority told us to go to some
Govt. Hospital. Thereafter, the accused took
the child to the hospital after consuting his
owner and firstly he took us to Bhel Hospital
and thereafer Bhel Hospital authority tols us to
go to some Govt. Hospital. Thereafter, the
driver of the offending card took us to some
Govt. Hospital. Thereafter, the Govt. Hospital
official refused to admit the patient as my
daughter was already dead. Thereafter, the
accused told us that he would arrange the last
rites of my daughter, I refused and told him to
leave me and my child to my home. The
accused revealed his name as Raj Bihar.
Thereafter, we reached our home and I also
called him to home from Payal Cinema.
Thereafter, we went ot the police, the police
took my daughter to the hospital."
16. A close reading of testimony of PW-4 casts serious doubt that she
had witnessed the accident. PW-4 in her examination-in-chief
stated that "while I was working in the building and I saw from
there one car coming and the said car hit my child and then stop
CRL. REV. PET. 805/2016 Page 8 of 14
after going some distance. The accused was saying some labourer
who was cutting the iron rods (saria) when he hit my child.
Thereafter, I came down from the building and took my daughter in
my lap". It is improbable that a person working on a construction
site can also look after her child at the same time by keeping her
across the road side on the pavement and whether the vehicle had
been brought on the pavement. Further, she failed to state the 'rash'
and 'negligent' manner in which the offending vehicle hit her child
which is the essential elements to book a person for the offence
punishable under Section 279/304A IPC. She also failed to state
In her statement, PW-4 categorically stated that "Thereafter, the
driver of the offending car took us to some Govt. Hospital.
Thereafter the Govt Hospital Official refused to admit the patient
as my daughter was already dead." She failed to give any
plausible explanation as to why police was not immediately called.
17. Further, the accident took place at about 11:30 a.m. in a broad day
light at place where a construction was going on and labourers
were working there which is evident from the testimony of PW-4.
None of the labourer was introduced as witness by the prosecution
and nothing has been emerged on record to say that any effort has
been made by the prosecution to cite any of the labourer as witness
who were present at the place of incident. According to the PW-4,
the car hit the child from right side, however, the mechanical
inspection of the offending vehicle does not support the version of
PW-4 as it shows no damage on the right side. Though non-
examination of Investigating Officer is not fatal to the case of the
CRL. REV. PET. 805/2016 Page 9 of 14
prosecution but in the instant case, neither the site plan nor the
MLC of the deceased was proved by the prosecution. In these
circumstances, the petitioner has been prejudiced and the non-
examination of the investigating officer is a material circumstance
in favour of the petitioner.
18. The mere fact that the petitioner has admitted that he was driving
the vehicle at the relevant time in his statement recorded under
Section 313 Cr.PC cannot be only ground to hold him guilty for the
offence. Though, it is a well established in law that admission or
confession of accused in the statement under Section 313 of the
Cr.P.C. recorded in the course of trial can be acted upon and the
Court can rely on these confessions to proceed to convict him. In
Ashok Debbarma @ Achak Debbarma Vs. State of Tripura
reported in (2014) 4 SCC 747, the Apex Court observed that :
21. We are of the view that, under Section
313 statement, if the accused admits that, from
the evidence of various witnesses, four persons
sustained severe bullet injuries by the firing by
the accused and his associates, that admission
of guilt in Section 313 statement cannot be
brushed aside. This Court in State of
Maharashtra v. Sukhdev Singh and Anr. :
(1992) 3 SCC 700 held that since no oath is
administered to the accused, the statement made
by the accused under Section 313 Code of
Criminal Procedure will not be evidence stricto
sensu and the accused, of course, shall not
render himself liable to punishment merely on
the basis of answers given while he was being
CRL. REV. PET. 805/2016 Page 10 of 14
examined under Section 313 Code of Criminal
Procedure. But, Sub-section (4) says that the
answers given by the accused in response to his
examination under Section 313 Code of
Criminal Procedure can be taken into
consideration in such an inquiry or trial. This
Court in Hate Singh Bhagat Singh (supra) held
that the answers given by the accused under
Section 313 examination can be used for
proving his guilt as much as the evidence given
by the prosecution witness. In Narain Singh v.
State of Punjab: (1963) 3 SCR 678, this Court
held that when the accused confesses to the
commission of the offence with which he is
charged, the Court may rely upon the
confession and proceed to convict him.
22. This Court in Mohan Singh v. Prem Singh
and Anr.: (2002) 10 SCC 236 held that the
statement made in defence by accused under
Section 313 Code of Criminal Procedure can
certainly be taken aid of to lend credence to the
evidence led by the prosecution, but only a part
of such statement under Section 313 Code of
Criminal Procedure cannot be made the sole
basis of his conviction. In this connection,
reference may also be made to the judgment of
this Court in Devender Kumar Singla v. Baldev
Krishan Singla : (2004) 9 SCC 15 and Bishnu
Prasad Sinha and Anr. v. State of Assam :
(2007) 11 SCC 467. The above-mentioned
decisions would indicate that the statement of
the accused under Section 313 Code of
CRL. REV. PET. 805/2016 Page 11 of 14
Criminal Procedure for the admission of his
guilt or confession as such cannot be made the
sole basis for finding the accused guilty, the
reason being he is not making the statement on
oath, but all the same the confession or
admission of guilt can be taken as a piece of
evidence since the same lends credence to the
evidence led by the prosecution.
19. The statement of the petitioner was recorded under Section 313
Cr.PC wherein he admitted that he was driving the offending
vehicle bearing registration No. DL-4-CAE-4071 at the relevant
time and the accident did occur but denied his negligence and
rashness and took up a plea that it happened on account of
negligence on the part of parents of the deceased. Rashness and
negligence being the crux of an offence under Section 304A IPC, it
has to be proved that the act by which accident caused was rash
and negligent and any admission on causing death by driving a
vehicle cannot amount to any admission for the offence punishable
under Section 304A IPC.
20. Criminal rashness means hazarding a dangerous or wanton act with
the knowledge that it may cause injury but done without any
intention to cause injury that it would probably cause injury. The
criminality lies in such an act or indifference to the consequences.
21. The question whether the conduct of the accused amounted to
culpable rashness or negligence depends directly on the question as
to what amount of care and circumspection which is prudent and
reasonable man considered to be seen considering all the
CRL. REV. PET. 805/2016 Page 12 of 14
circumstances of the case. It is necessary to avoid being influenced
by the prejudice arising out of the loss of a life which is a dominant
factor in cases of accident.
22. Undoubtedly, in the present case, the accident, death of an innocent
and identity of driver of offending vehicle, are not in dispute. The
Courts below brushed aside the fact that the complainant/PW-4 left
her 9 months old infant baby on the pavement unattended and
prosecution failed to prove that she died due to the rashness and
negligence no the part of the petitioner. The prosecution failed to
bring on record that the death of the deceased, was due to the rash
and negligent act of the petitioner and there was a direct nexus
between the death of the deceased and rash and negligent act on the
part of the petitioner.
23. The prosecution had to prove that there was a direct nexus between
the death of the person and rash and negligent act of the petitioner.
No doubt a life has been lost. The prosecution had to prove that
petitioner had acted with recklessness and therefore a failure to
exercise reasonable and proper care in person but in the instant
case the baby had been left unattended. The mere fact that an
innocent died in a road accident, the presumption of rashness and
negligence against the petitioner cannot be drawn. In order to
impose criminal liability on the petitioner, it must be found as a
fact that the accident was entirely or atleast mainly due to the
rashness or negligence on the part of the petitioner who was
driving the vehicle.
CRL. REV. PET. 805/2016 Page 13 of 14
24. From the above discussion, I find that the prosecution failed to
show that though the death of the deceased occurred, it was due to
the rash and negligent act of the petitioner. Consequently, the
present revision succeeds. The impugned order dated 22.11.2016
passed by the Additional Sessions Judge-03, Patiala House Courts,
New Delhi in Criminal Appeal No. 8706/2016 titled as „Ras Bihari
Singh Vs. State" as well as order of conviction dated 25.05.2016
and order on sentence dated 30.06.2016 passed by the Metropolitan
Magistrate-3, Patiala House Court, New Delhi, are hereby set aside
and the petitioner shall stand acquitted for the offences under
Section 279/304A IPC.
25. Ordered accordingly.
26. Trial Court Record be returned along with a copy of this order.
SANGITA DHINGRA SEHGAL, J.
NOVEMBER 24, 2017 gr CRL. REV. PET. 805/2016 Page 14 of 14