Full Text
HIGH COURT OF DELHI
JUDGMENT
STATE .....Petitioner
For the Petitioner : Mr. Sunil Kumar Gautam, APP for the
State.
SI Virrender, PS Kamla Market.
For the Respondent : Mr. Akshay Verma, Adv. through VC.
1. The present petition is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘CrPC’) seeking leave to challenge the judgment dated 04.09.2019 (hereafter ‘impugned judgment’) passed by the learned Additional Sessions Judge (‘ASJ’), Tis Hazari Courts, Delhi in Crl. Appeal No. 03/2019.
2. By the impugned judgment, the learned ASJ set aside the judgment of conviction dated 09.01.2019 passed by the learned Metropolitan Magistrate, and acquitted the respondent of the offences under Sections 279/304A of the Indian Penal Code, 1860 (‘IPC’).
3. The brief facts of the case are that FIR being FIR No. 133/2008 dated 10.08.2008 was registered under Sections 279/304A on a complaint given by one Mohit Mittal. It is alleged that on 10.08.2008 the complainant along with Rohit Sharma and Akshay Jain/victim were returning from Regal Cinema by a private bus, and were to deboard at JLN Marg, Kamla Market. It is alleged that the respondent stopped the bus before reaching the bus stop. Thereafter, the victim got down from the said bus. It is alleged that when the victim was in the process of deboarding the bus, the driver/respondent started the bus in speed as a consequence of which the victim fell down, and was run over by the rear tyre of the bus.
4. The respondent was charged for the offences under Sections 279/304A of the IPC.
5. By the impugned judgment, the learned ASJ set aside the judgment of conviction dated 09.01.2019 and acquitted the respondent of the charged offences. It was noted that there existed material variations in the evidence given by the two eye-witnesses. It was noted that before the Court PW-1 and PW-2 had asserted that the bus driver had moved the bus hastily when the victim was in the process of deboarding the bus. Contrarily, in the statement recorded by the police, it was narrated that the deceased had got down the bus, and that as soon as the victim got down the bus, the driver moved the bus in haste as a consequence of which the victim was mildly hit by the bus who then fell down and came under the rear wheel of the bus. It was noted that in order to impute liability to the respondent, it was essential to ascertain whether the victim was in the process of getting down the bus or had got down the bus when the driver allegedly moved the bus.
6. It was further noted that PW-1 and PW-2 gave two versions in relation to the manner in which the accident had occurred. It was noted that in their statement to the police, PW-1 and PW-2 had urged that the respondent had stopped the bus before the authorized bus stop when the respondent alighted the bus. As opposed to this, before the Court, PW-1 and PW-2 stated that the respondent had slowed down the bus at the request of the victim and PW-1 and PW-2, and then stopped the bus.
7. The learned ASJ noted that the evidence of both the eye witnesses was inadequate inasmuch as it did not state the number of doors in the bus, or the details in relation to whether it was the front or the rear door from which the victim had alighted the bus or whether the door was lying open or was unbolted at the request of the victim and his friends, at the time when the alleged incident occurred. Consequently, considering the discrepancies in the testimony of PW-1 and PW-2, the learned ASJ acquitted the respondent of the charged offences.
8. The learned Additional Public Prosecutor for the State submitted that the learned ASJ erred in acquitting the respondent of the charged offences. He submitted that the impugned order is based on surmises and conjectures and does not take into account the facts and circumstances of the present case. He submitted that the respondent was driving the bus in a rash and negligent manner which led to the death of the victim. He submitted that learned ASJ failed to take into account the testimony of PW-1 and PW-2 who narrated the manner in which the accident took place, and specifically alleged that the same occurred on account of the rash and negligent act of the respondent. He consequently submitted that the impugned order be set aside. Analysis
9. It is trite law that the Appellate Court must exercise caution and should only interfere in an appeal against acquittal where there are substantial and compelling reasons to do so. At the stage of grant of leave to appeal, the High Court has to see whether a prima facie case is made out in favour of the appellant or if such arguable points have been raised which would merit interference. The Hon’ble Apex Court in the case of State of Maharashtra v. Sujay Mangesh Poyarekar:
24. We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate court against an order of acquittal recorded by the trial court. We only state that in such cases, the appellate court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial court should not be disturbed. Where there is application of mind by the appellate court and reasons (may be in brief) in support of such view are recorded, the order of the court may not be said to be illegal or objectionable. At the same time, however, if arguable points have been raised, if the material on record discloses deeper scrutiny and reappreciation, review or reconsideration of evidence, the appellate court must grant leave as sought and decide the appeal on merits. In the case on hand, the High Court, with respect, did neither. In the opinion of the High Court, the case did not require grant of leave. But it also failed to record reasons for refusal of such leave.” (emphasis supplied)
10. In the present case, the prosecution has sought to base its case on the ocular testimony of PW-1 and PW-2. However, as appreciated by the learned ASJ, the testimony of PW-1 and PW-2 is not without any blemish.
11. It is pertinent to note that the respondent has been charged for the offence of rash driving on a public way, and causing grievous hurt by such rash or negligent act. In order to bring home the guilt of the accused under Sections 279/304A of the IPC, the prosecution ought to prove that the accused was driving the vehicle in a rash or negligent manner as a consequence of which the victim sustained injuries. The gravamen of the offences under Sections 279/304A of the IPC, thus, is that the act of the respondent is done rashly or negligently.
12. While delineating the meaning of the term rashness, the Hon’ble Apex Court in the case of Mohd. Aynuddin v. State of A.P.:
13. Additionally, in the case of Ravi Kapur v. State of Rajasthan: (2012) 9 SCC 284, the Hon’ble Apex Court while examining the scope of Section 279 of the IPC, and the meaning of the term “negligence” observed as under: “12. Rash and negligent driving has to be examined in the light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to “rash and negligent driving” within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words “manner so rash or negligent as to endanger human life”. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted.
13. “Negligence” means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing what one was ought to do can constitute negligence.”
14. It is trite that for an offence under Section 279/304A of the IPC, the prosecution must establish that the accused was driving the vehicle in a manner so rash or negligent as to endanger human life or cause death. Mere involvement of the accused’s vehicle in the incident, without establishing rashness or negligence beyond reasonable doubt, is insufficient to sustain a conviction.
15. Since the case of the prosecution is premised on the testimony of PW-1 and PW-2, it is imperative that the same inspires confidence. From a perusal of the record, it is borne out that there exist several variations in the testimony of PW-1 and PW-2.
16. In relation to the manner in which the accident had occurred, PW-1 and PW-2, in their statement to the police had alleged that the respondent had stopped the bus of his own accord before the authorized bus stop when the victim had alighted the bus. As opposed to this, PW-1 and PW-2 before the learned Trial Court deposed that the driver had slowed down the bus at the request of the victim and his friends, and had then stopped the bus. As rightly noted by the learned ASJ, if the respondent had stopped the bus before the authorized bus stop of his own volition as per the statement of PW-1 and PW-2 under Section 161 of the CrPC, with an intention to have the passengers deboard the bus before reaching the bus stop, the same itself qualified as a rash and negligent act on the part of the respondent. However, if the bus had been stopped on the request of the passengers, other circumstances also ought to be examined to assess whether the respondent was negligent.
17. The learned ASJ also considered the site map of the place where the accident had occurred, and noted that the authorized bus stop was situated only at a few paces from where the accident had occurred. It was consequently noted that since the bus stop was only a few minutes from the place of the accident, it appeared improbable why the respondent would stop the bus at the request of only three passengers.
18. PW-1 and PW-2 further gave varied versions in relation to the manner in which the accident took place. In their statement before the police, PW-1 and PW-2 asserted that the victim had got down the bus after which the respondent moved the bus in haste as a result of which the victim was mildly hit by the bus and he then fell down and came under the rear wheel of the bus. Before the learned Trial Court, PW-1 and PW-2 stated that the respondent drove the bus hastily when the victim was in the process of alighting the bus. As rightly noted by the learned ASJ, if the respondent had moved the bus when the victim was in the process of deboarding the bus, the same would translate to mean that the respondent was negligent. However, if the driver had moved the bus after the victim had already alighted from the bus, then it would not conclusively tantamount to mean that the driver was negligent.
19. The learned ASJ further noted that the testimony of PW-1 and PW-2 was vague and inadequate and did not state the number of doors in the bus, or the details in relation to whether it was the front or the rear door from which the victim had alighted the bus or whether the door was lying open or was unbolted at the request of the victim and his friends, at the time when the alleged incident occurred.
20. In the present case, the material on record falls short of establishing rashness or negligence on the part of the respondent beyond reasonable doubt.
21. Upon a consideration of the totality of facts and circumstances, this Court does not find any infirmity in the impugned judgment, and the same cannot be faulted with. This Court is of the opinion that the State has not been able to establish a prima facie case in its favour and no arguable ground has been raised to accede to the State’s request to grant leave to appeal in the present case.
22. The leave petition is therefore dismissed in the aforesaid terms. AMIT MAHAJAN, J MAY 28, 2025