Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
nd
Judgment Reserved on: 02 April, 2019
th
Judgment Pronounced on: 10 April, 2019
+ CRL.LP. 200/2018
STATE(NCT OF DELHI) ...Appellant
Through: Mr. Taranag Srivastava, APP for
State with SI Devender, PS New
Friends Colony
Versus
JAGBIR SINGH ...Respondent
Through: Mr. Kuldeep Rai, Mr. Emamuddin
Azmi and Mr. Varun Mishra, Advs
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J
CRL.M.A. 5806/2018 (Delay in filing)
This is an application under Section 5 of the Limitation Act, 1963 read with
Section 482 Cr.PC seeking condonation of 15 days delay in filing the leave
to appeal.
Heard.
For the reasons stated in the application, the delay in filing the leave to
appeal is condoned.
Application stands disposed of.
CRL.LP. 200/2018 Page 1 of 12
CRL. L. P. 200/2018
1. By the present Leave Petition filed under Section 378 (3) of the Code
of Criminal Procedure (hereinafter referred as ‘Cr.P.C.’ ) the State
seeks leave to appeal against the judgment dated 24.11.2017 passed by
the learned Additional Sessions Judge-02, South East District, Saket
Courts, New Delhi whereby the respondent (accused before the Trial
Court) was acquitted of the charge punishable under Sections
279/304-A of the Indian Penal Code, 1860 (hereinafter as ‘IPC’ ).
2. Brief facts of the case are as under:-
“ (i) That DD No. 16A was registered at Police
Station New Friends Colony on receipt of the
information that one boy has been injured by the rear
tyre/wheel of the bus bearing no. DL1PA 7976, while
he was deboarding the aforesaid bus. The said DD
was marked to SI Hira Lal(PW-6), and accordingly
SI Hira Lal arrived at the spot i.e. Bus Stand,
Taimoor Nagar, CV Raman Marg. The injured was
shifted to the AIIMS Hospital and was declared
brought dead by the doctors.
(ii) Based on the aforesaid facts and circumstances,
FIR No. 68/2005 under Section 279/304A IPC was
registered at Police Station New Friends Colony.
(iii) After the completion of investigation, the charge
sheet was filed and after committal, arguments on the
point of charge were heard and charges U/s Section
279/304A IPC, were framed against the accused, to
which he pleaded not guilty and claimed trial.”
3. To bring home the guilt of the respondent, the prosecution has
examined 6 witnesses in all. Statement of the respondent was recorded
under Section 313 of Cr.P.C. wherein he denied the charges framed
CRL.LP. 200/2018 Page 2 of 12
against him and claimed to be falsely implicated in the case and did
not lead any evidence in his defence.
4. After hearing the counsels for both sides and on appreciation of entire
evidence available on record, the learned Additional Sessions Judge,
set aside the order of conviction passed by Ld. ACMM and acquitted
the accused for the charged offences.
5. Assailing the impugned judgment, Mr. Taranag Srivastava learned
counsel appearing for the State contended that judgment of acquittal
by the Learned Additional Sessions Judge is not sustainable and
deserves to be quashed and set-aside as it is not based on correct
appreciation of evidence available on record. Learned counsel for the
State contended that the Learned Additional Sessions Judge has failed
to appreciate the fact, that the accused in his Statement recorded U/s
313 Cr.P.C, has admitted that he was driving the bus at the time of the
alleged incident and the said factum is further corroborated by the
testimony of Ct. Pawan Kumar. He further contended that the learned
Additional Sessions Judge has erred in not relying on the testimony of
the eyewitness PW-2( Ct. Pawan Kumar ) wherein he has categorically
deposed that the accident had occurred due to the rash and negligent
driving of the respondent. Counsel for the State has lastly urged that
the trial court has not correctly appreciated the facts and
circumstances of the case; hence the impugned judgment is liable to
be set aside.
6. Per contra, learned counsel for the respondent refuting the arguments
advanced on behalf of the learned APP for the State, vehemently
opposed the present petition and contended that the impugned
CRL.LP. 200/2018 Page 3 of 12
judgment passed by the Learned Additional Sessions Judge does not
call for any interference by this Court. He further contended that the
testimony of PW-2 Ct. Pawan Kumar, who claims to have seen the
accident, is highly doubtful as the story of the prosecution is not
corroborated with the testimony of witnesses. He further contended
that the prosecution has failed to bring on record any substantial
evidence, which would prove that the respondent was driving the
aforesaid bus in rash and negligent manner and the death has been
caused due to the act of the respondent.
7. I have given my anxious consideration to the submissions advanced
on behalf of learned counsel for the parties and also perused the
material available on record.
8. At the outset, before delving into merits of the submissions made by
learned counsel for the parties, I find it appropriate to discuss the
relevant Section involved in the instant case. 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
because criminal negligence or criminal rashness is an important
element for the offence under Section 279 IPC.
CRL.LP. 200/2018 Page 4 of 12
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 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
CRL.LP. 200/2018 Page 5 of 12
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.
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 exclusively deals with unintentional death caused by
doing any rash or negligent act by the offender. The applicability of
this Section is limited to rash or negligent acts which cause death but
CRL.LP. 200/2018 Page 6 of 12
fall short on 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 death was caused due to rash and negligent act of the accused.
14. 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, whereas criminal
negligence on the other hand, is the gross and culpable neglect or the
failure to exercise the reasonable and proper care. 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 immutability 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 immutability arises from the negligence of the
civic duty of circumspection”
15. 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.
CRL.LP. 200/2018 Page 7 of 12
16. 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
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.
17. Returning to the facts of the present case, the moot question which is
to be decided whether the death has caused due to the rashness and
negligence of the respondent/accused person or the death has been
caused due to negligent act of the deceased. Admittedly the death has
been caused from the offending vehicle driven by the accused. To
ascertain the cause of death, it is relevant to examine the evidence
adduced by the prosecution before the trial court. The case of the
prosecution rests upon the testimony of Ct. Pawan Kumar who was an
eye witness to the alleged incident. He stepped into the witness box as
PW-2 and deposed that:-
“On 14..02.2005 I was posted at PS new Friends
Colony. On that day I was on vehicle checking duty
at beat no.4, Taimur Nagar. At about 07:30 p.m.,
one bus bearing no. DL-1PA-7976 Route no. 473
came from Badarpur side and stopped after our
barricades. The vehicles were boarding and
deboarding. However, the driver of the said bus
started running the bus suddenly in fast speed.
One boy came under the rear tyre of the bus . The
bus did not stop there. However the bus was
stopped at a distance and the driver of the said bus
ran away from the spot. Someone called the police
CRL.LP. 200/2018 Page 8 of 12
and PCR took the injured to hospital. IO SI Hira
Lal reached the spot.”
18. During his cross examination he deposed as under:
“I was checking vehicles by erupting barricades
on C.V. Raman Marg. The bus was going towards
ring road. I was also present on the same side of
the road going towards ring road. The distance
between the barricades and bus stop is going
towards ring road. The distance between the
barricaded and bus stop is about 100 meters . The
passengers boarded and de-boarded at the bus
stop. The boy came under the bus within a
distance of 2-3 paces from the place from where
the bus started running . The bus stopped
immediately after crossing our barricades. The boy
was crushed under the rear tyre of the bus. The
bus did not stop after the incident and it stopped at
a distance of around 100 metre.”
19. A close reading of testimony of PW-2 cast a serious doubt that he had
witnessed the accident. Ct. Pawan Kumar in his testimony is silent on
the fact that whether the deceased was boarding or deboarding the
bus. PW-2 deposed that the driver of the bus started its ignition and
accerlerated in a fast speed after the same had crossed their barricade,
consequently one boy was injured and was crushed under the rear
tyre/wheel of the bus. He further deposed that the distance where the
bus stopped and the barricade was around 100 meters and the boy
came under the rear/tyre wheel of the bus within a distance of 2-3
paces from where the bus started its ignition.
20. As per the testimony of PW-2, the offending vehicle stopped at the
barricade and thereafter crossed the barricade. PW-2 while performing
CRL.LP. 200/2018 Page 9 of 12
his duty would be watching the vehicles which are moving towards
the barricade instead of watching the vehicle which has already
crossed the barricade. Hence PW-2 witnessing the alleged incident is
doubtful and the site plan Ex.PW6/D is also of no help as it does not
project the place of incident and the positioning of PW-2.
21. Further, the accident took place at about 07:30 p.m. in the evening
with numerous passengers in the bu s bearing no. DL-1PA-7976 but
none of the passengers of the bus no. DL-1PA-7976 were introduced
as a witness by the prosecution and nothing has emerged on record to
say that any effort has been made by the prosecution to cite any of the
co-passengers as witnesses who were present at the place of the
incident.
22. Undoubtedly, in the present case, the accident, death of an innocent
and identity of driver of offending vehicle, are not in dispute.
Accordingly as per the ocular evidence, the deceased was injured
under the rear tyre of the bus, but the same facts is not supported by
the medical evidence because as per the postmortem report it was
opined that ‘(i) multiple abrasion over the dorsal aspect of left foot,
(ii) gazed abrasion on the left back side of the body and (iii) grazed
abrasion over the left buttock’. Whereas it is significant to emphasize
that no doctor was examined by the prosecution to prove the post
mortem report of the deceased. Hence, the prosecution failed to bring
on record that the death of the deceased, was due to the rash and
negligent act of the respondent.
23. The prosecution had to prove that the respondent had acted with
recklessness and therefore a failure to exercise reasonable and proper
CRL.LP. 200/2018 Page 10 of 12
care in person, but in the instant case the mere fact that an innocent
died in a road accident, the presumption of rashness and negligence
against the respondent cannot be drawn. In order to impose criminal
liability on the respondent, it must be found as a fact that the accident
was entirely or at least mainly due to the rashness or negligence on the
part of the person who was driving the vehicle. Rashness and
negligence being the crux of an offence under Section 279/304A IPC,
the prosecution has to prove that the act by which the accident had
occurred was rash and negligent because any admission on causing
death by driving a vehicle cannot attract the offences punishable under
Section 279/304A IPC.
24. In the present case, on a cumulative reading and appreciation of the
entire evidence on record, I am of the considered view that the
evidences on record have been held to be unworthy of acceptance
because the same is found to be replete with infirmities. There are
considerable inconsistencies and discrepancies in the statement of the
witnesses, which consequently makes the version of the prosecution
fabricated and unreliable. Therefore, the prosecution has failed to
disclose the true genesis of the crime and establish the charges against
the respondent punishable under Section 279/304A IPC.
25. It is a settled law that while deciding a leave to appeal petition filed by
the State, in case two views are possible, the High Court must not
grant leave, if the trial court has taken one of the plausible views, in
contrast there to in an appeal filed against acquittal. Upon re-appraisal
of evidence and relevant material placed on record, in case, the High
Court reaches a conclusion that another view can reasonably be taken,
CRL.LP. 200/2018 Page 11 of 12
then the view, which favor’s the accused, should be adopted unless the
High Court arrives at a definite conclusion that the findings recorded
by the trial court are perverse, the High Court would not substitute its
own views on a totally different perspective.
26. Having regard to the principles laid down by the Apex Court in the
case of Ghurey Lal vs. State of U.P ., reported at 2008 (10) SCC 450 , I
do not find that there is any illegality or perversity in the reasoning
given in the impugned judgment. The learned trial court has taken a
holistic view in the matter and carefully analyzed the evidence of all
the witnesses. Accordingly, no ground to interfere with the impugned
judgment is made out and the leave petition is dismissed.
SANGITA DHINGRA SEHGAL, J
APRIL 10, 2019
SU
CRL.LP. 200/2018 Page 12 of 12