IN THE COURT OF SH. [ENTITY] METROPOLITAN MAGISTRATE03, SOUTH DISTRICT, SAKET COURTS COMPLEX, DELHI. STATE VS BALJEET SINGH FIR No.471/2005 U/[SECTION] [ACT] P.S.:Vasant Vihar JUDGMENT
a) Sl.No. of the case :
b) Date of commission of offence : 19/12/2005
c) Name of the complainant : [ENTITY]
d) Name of the accused ,and his parentage and residence : [ENTITY] S/o [ENTITY] R/o H.NoG83, Badiyaal Mohalla, Palam Gaon Extn., Delhi.
e) offence complained of and but not proved : U/[SECTION] and [SECTION] [ACT]. f) Plea of accused : Pleaded not guilty and claimed trial. g)final order : Accused acquitted of all charges. h)date of such order : 08/11/2011. FIR No. 471/2005, U/[SECTION] and [SECTION] [ACT], P.S.Vasant Vihar Page 1of 13 Date of institution of the case : 14/03/2007. Date of Reserving the judgment : Not reserved. Date of pronouncing the judgment : 08/11/2011.
i) BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. A per the prosecution, on 19/12/2005 at about 12:30 p.m., the accused was driving a "blue line bus" plying on route no727, bearing bus noDL1 PB1100 in a rash and negligent manner at public place at Vasant Goan, Vasant Vihar, Delhi. While so driving the accused hit the unfortunate pedestrian Late Ms. [ENTITY] and as a result of the same the said Late Ms. [ENTITY] died. Accordingly after investigation, police filed the present charge sheet against the accused.
2. Complete set of copies were supplied to the accused. After hearing arguments, notice u/[SECTION] [ACT] was served against the accused by my Ld. Predecessor for trial of offence U/[SECTION] [ACT], to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. Prosecution in support of present case examined 11 witnesses .
FIR No. 471/2005, U/[SECTION] and [SECTION] [ACT], P.S.Vasant Vihar Page 2of 13 3.1. PW1, Sh. [ENTITY] PW2 Sh. [ENTITY] and PW4, [ENTITY] are formal witness who identified the body of the Victim vide memo Ex PW1/A and PW2/A. 3.2. PW3, Dr. [ENTITY] proved the MLC of the deceased which was prepared by another doctor as PW3/A. But in any case the factum of death of the deceased is not in dispute.
3.3. PW5, Head Constable [ENTITY], Duty Officer, has proved copy of FIR vide Ex. PW5/A. 3.4. PW6, Ct. [ENTITY], deposed that on 20/12/2005 [ENTITY] produced the accused [ENTITY] to IO in his presence and the accused was arrested vide memo Ex PW6/B. Further the DL and RC of the vehicle was also produced and seized as Ex PW6/A. 3.5. PW7 [ENTITY] is the police official who accompanied the IO SI [ENTITY] during investigation on the date of accident. They stated that when they reached the spot, the victim was already moved to the Hospital. On the basis of rukka given he got registered the present FIR.
3.6. PW8, [ENTITY] is the eye witness of the accident. His evidence is discussed in detail at appropriate stage later on.
3.7. PW9, [ENTITY], is also a formal witness who recorded the relevant DD Entry No22A from duty officer and he delivered FIR No. 471/2005, U/[SECTION] and [SECTION] [ACT], P.S.Vasant Vihar Page 3of 13 the same to IO.
3.8. PW10, SI [ENTITY] is the IO of the case and he proved the overall case. He prepared the site plan Ex PW10/C. Further he proved the reply to notice sent u/[SECTION] [ACT] as PW10/D. He further deposed that owner of offending vehicle Sh. [ENTITY] produced the Accused and the accused was interrogated. In the meanwhile the eye witness, [ENTITY]/PW8 also identified the accused.
3.9. PW11, Sh. [ENTITY] deposed that he is the registered owner of the case property/bus. The Identity of case property is not disputed by the Accused.
THE DEFENCE :
4. Statement of accused was recorded U/[SECTION] [ACT] wherein he pleaded innocence and false implication in this case. But he choose not to lead any defence evidence.
THE ARGUMENTS:
5. Ld. APP for state has argued that eye Witness/PW8 has supported the prosecution on material aspect. And on a combined reading of prosecution witnesses testimony, offence u/[SECTION] and [SECTION] FIR No. 471/2005, U/[SECTION] and [SECTION] [ACT], P.S.Vasant Vihar Page 4of 13 [ACT] are proved beyond doubt.
On the other hand Ld.Counsel for accused has stated that there is no legally sustainable evidence against the accused. Even the statement of alleged eye witness PW8 is full of inconsistency which is clear from the cross examination of such witness. It is stated that that PW8 is nothing but a planted witness. No TIP of the accused was conducted.
THE FINDINGS:
Offense u/[SECTION] and [SECTION] [ACT]:
6. I have heard arguments from Ld. APP for State, Ld. Defence Counsel for the accused and perused the evidence and documents on record carefully.
7. The prosecution in this case had to prove the following :
I) Firstly, the identity of the accused as driver of the offending vehicle; AND II) Secondly, the accident has taken place due to rash and negligent driving by the accused, causing death of victim.
10. In the case of [PRECEDENT], the Court relied upon a number of decisions of FIR No. 471/2005, U/[SECTION] and [SECTION] [ACT], P.S.Vasant Vihar Page 5of 13 the Apex Court and concluded that in criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. It was also observed that "such ingredient cannot be said to have been proved or made out by resorting to the rule of principle of res ipsa loquitur."
11. Except PW8,[ENTITY] ,the prosecution has not adduced any evidence to demonstrate that it was the accused who was driving the vehicle and that the accused was driving the vehicle in a rash or negligent manner. Except PW8, the witnesses examined by the prosecution had not witnessed the accident and have, therefore, not deposed to this effect. Hence, apart from the evidence of PW8, there is no evidence on record to establish that the accused was driving the vehicle in a rash and negligent manner and was therefore responsible for the accident and the consequent death of victim in question.
12. Now I would analyze the evidence of such eye witnesses, PW8. 12.1. PW8, [ENTITY] Stated that on 19122005 he was posted on picket duty. At about 12:30 noon when he was on his duty he saw a lady wearing red sari standing, and that there was green signal from Vasant Goan traffic and the traffic started and the bus in question came and hit that lady in red sari. He correctly identified the accused as well as the bus in court. The Accused run away from the FIR No. 471/2005, U/[SECTION] and [SECTION] [ACT], P.S.Vasant Vihar Page 6of 13 spot towards Gurgaon side. Public helped in taking the lady to hospital. IO later come to the spot and PW8 handed over the vehicle in question to IO. He further deposed subsequently on the same day, he went to the police station and identified the accused in police station.
12.2. Now on a combine reading of the examination in chief and the cross examination of this witness PW8 it is proved that accident in question occurred on the day and place in question. Further this witness had the occasion to see and identify the accused on the same day in police station, and again correctly identified the accused in court, therefore, although there was no TIP of the accused, still the PW8 is believed on this account. Hence the Identity of the accused as the driver of the vehicle in question is proved although no question to the the superdar /PW11 is put by the prosecution about the driver and further that accused has denied that he was not at the spot but took the plea that he was at home on that day and was not driving the vehicle. But he failed to establish his plea.
Therefore, apart from certain minor inconsistencies, which are natural in the evidence of a natural witnesses, the testimony of PW8 and other police witnesses, PW6 and PW10/IO is coherent and consistent, as far as the identity of accused is concerned. FIR No. 471/2005, U/[SECTION] and [SECTION] [ACT], P.S.Vasant Vihar Page 7of 13
13. But so far so good for the prosecution. But the fact remains that the only eye witness is the PW8. I have carefully considered his evidence. Nowhere in his deposition in court, he has attributed any rash and negligent act on the part of the accused. PW8 only stated that deceased was standing on road. Then traffic signal turned green ,as such the accused proceeded further along with other flow of traffic .And the bus hit the unfortunate lady/deceased.
14. In the case of [PRECEDENT] it was held as follows:
"No doubt P.W. 1 [ENTITY], P.W. 2 [ENTITY], P.W.3 [ENTITY] and P.W. 4 [ENTITY] have stated that the vehicle was at high speed, but speed is not the sole contention for determining the negligent driving of the vehicle, unless and until it is proved by cogent evidence that the vehicle was being driven rashly or negligently.
In this case by simply stating that the vehicle was being driven negligently is not sufficient to prove this fact."
15. Further these words i.e "rash" and "negligent", have not been defined in the [ACT]. 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 FIR No. 471/2005, U/[SECTION] and [SECTION] [ACT], P.S.Vasant Vihar Page 8of 13 ordinary prudence would have exercised in the same circumstances. 15.1. Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by [ENTITY] 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 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'."
15.2. The Oxford Advanced Learner's Dictionary, Sixth Edition FIR No. 471/2005, U/[SECTION] and [SECTION] [ACT], P.S.Vasant Vihar Page 9of 13 defines 'Rash' as doing something that may not be sensible without first thinking about the possible results.
15.3. Elaborating further, in [PRECEDENT], 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 in tention 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 conse quences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution im perative to be adopted by a person to avoid causing of injury to the public or a person or a individual."
15.4. 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] of [ACT]. Quoting from [PRECEDENT].
"[SECTION] 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 FIR No. 471/2005, U/[SECTION] and [SECTION] [ACT], P.S.Vasant Vihar Page 10of 13 offences outside the range of [SECTION] and [SECTION] [ACT]. 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] 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 FIR No. 471/2005, U/[SECTION] and [SECTION] [ACT], P.S.Vasant Vihar Page 11of 13 has arisen it was the imperative duty of the accused person to have adopted.
8. The distinction has been very aptly pointed out by [ENTITY], 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 : [PRECEDENT])".
16. In this case the PW8, as noted above already, has not even stated that the vehicle was being driven negligently. Further there is no other evidence of rash and negligent of the standard as discussed above in preceding para. Thus, in my considered view, the prosecution could not prove beyond reasonable doubt that the accident has taken place due to rash or negligent driving by the accused. The evidence coming on record entitles the accused for the benefit of doubt. Therefore, I hereby acquit the accused of all the charges in present case.
FIR No. 471/2005, U/[SECTION] and [SECTION] [ACT], P.S.Vasant Vihar Page 12of 13
17. He is on bail. Bail bond canceled. Surety discharged, endorsement if any on the security of surety be canceled/returned. Original documents, if any, be returned.
18. File be consigned to Record Room after due compliance. Announced in the open court on 08/11/2011 and all the pages from 1 to 13 are signed by me.
([ENTITY]) MM03, SOUTH DISTRICT, SAKET COURT COMPLEX, NEW DELHI.
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