SI Vishnu Singh, PS Badarpur v. Irshad Khan

1. The present appeal has been preferred by the appellant/State under Section 378 Cr.P.C. seeking setting aside of the impugned judgment dated 29.08.2014 passed by the learned ACMM, South-East District, Saket Courts, New Delhi, in proceedings arising out of FIR No. 722/1998 registered at P.S. Badarpur, whereby the respondent was acquitted of all charges. Notably, the leave to appeal before this Court was granted vide order dated 20.07.2016.

2. The case of the prosecution, briefly stated, is that on 08.10.1998 at about 12:45 PM, at Main Mathura Road, near Rajiv Gandhi Camp, Badarpur, the respondent was driving truck bearing no. HR-38-2462 in a rash and negligent manner and he hit a motor cycle bearing no. DL-4SL- 1247 from behind and caused simple injuries to one Khushal Singh and caused the death of one Rajinder Kumar, not amounting to culpable homicide.

3. The prosecution examined 8 witnesses in support of its case. The injured complainant Kushal Singh was examined as PW-1. PW-2 and PW-3 identified the body of the deceased Rajinder Kumar. HC Bijander Singh, the first I.O. of the case, was examined as PW-4; and Ct. Rajesh Kumar, who assisted him, was examined as PW-5. ASI Rajender Singh, the duty officer, was examined as PW-6. The second I.O. of the case, SI Ram Sahay, was examined as PW-8; and HC Billu, who joined the investigation with the second I.O., was examined as PW-7. The respondent admitted certain documents under Section 294 Cr.P.C., and the witnesses regarding formal proof of the said documents were therefore dropped.

4. The statement of the respondent under Section 313 Cr.P.C. was recorded, wherein he denied the allegations put to him and set up the defence that he was not driving the offending vehicle at the time of the incident. He claimed innocence and alleged false implication. He did not lead any defence evidence.

5. The legal position as to what constitutes “a rash or negligent act” is well settled. Section 304-A, for being attracted, requires that there must be death of the person in question; the accused must have caused such death; and the act of the accused must have been rash or negligent, though not amounting to culpable homicide.

6. This rash or negligent act must be proximately connected to the cause of death. Doing of any act with recklessness or indifference to the possible consequences, albeit without the intention of causing injury, constitutes criminal rashness. Gross and culpable neglect or failure to exercise reasonable and proper care and precaution to guard against injury either to the public generally or to a particular individual is what defines criminal negligence. Res ipsa loquitur would only come into play when the nature of accident and surrounding circumstances would lead to the conclusion that the accident would not have occurred, but for the negligence; and the presumption of negligence of the driver cannot automatically be raised.

7. The Supreme Court elaborated upon the concepts of culpable rashness, criminal negligence, and presumptions of negligence in the case of Mohd. Aynuddin v. State of A.P.1, wherein it was held as under:-

8. The nature and scope of Section 304-A IPC was discussed in Naresh Giri v. State of M.P.2, wherein the Supreme Court held as follows:-

9. The Trial Court, upon a detailed analysis of the evidence, extended the benefit of doubt to the respondent and acquitted him for the offences under Sections 279/337/304-A IPC.

10. The prosecution case heavily relied on the deposition of the injured complainant Khushal Singh, examined as PW-1. He stated that on the date of the incident, he and his friend Rajinder Kumar (the deceased) were going to Meethapur, Badarpur on his motorcycle, and on reaching near Peer Baba on Mathura Road, a dumper truck came from behind and hit his motorcycle.

He identified the respondent as the person he saw sitting on the driver’s seat of the truck. He also stated that he did not pay any attention to the driver, as he was attending to the deceased. He stated that the speed of the truck at the time of the accident was more than that of his motorcycle. However, he did not state that the truck was being driven in a rash or negligent manner. PW-1 has, in fact, not even stated that the respondent was driving the truck at a high speed. He failed to state what the speed of the motorcycle was or the lane in which he was driving, at the time of the accident. The Trial Court has rightly held that the even if the deposition of PW-1 is taken at face value, the fact that his motorcycle was hit from the back and dragged a certain distance is not sufficient to prove rash or negligent driving on the part of the respondent.

11. Moreover, the Trial Court also found that the testimony of the eyewitness went either uncorroborated on key aspects or was even contradicted at certain points. For instance, PW-1 stated that the offending truck, after hitting his motorcycle, dragged on for about 15 meters before it was stopped. However, the Trial Court has observed that no skid marks or dragging marks have been shown in the site plan (Ex. PW-8/A). The same also does not bear PW-1’s signatures.

12. A major contradiction in the prosecution case is that the injured PW-1 has deposed that his statement was recorded by the police at the police station, whereas the first I.O. (PW-4) has deposed that he recorded the complainant’s statement at the spot, thereafter prepared tehrir on its basis, and then sent Ct. Rajesh for registration of the FIR. Thus, serious doubts have been raised qua the testimony of the sole eyewitness.