STATE (GNCT OF DELHI) v. KAMAL SINGH

: Mr. A. Jha, Advocate (through VC). CORAM HON’BLE MR JUSTICE AMIT MAHAJAN JUDGMENT

1. The present petition is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘CrPC’) seeking leave to challenge the judgment dated 02.02.2018 (hereafter ‘impugned judgment’) passed by the learned Additional Sessions Judge (‘ASJ’), South West, Dwarka Courts, New Delhi in Criminal Appeal No. 440654/2016 whereby the respondent was acquitted of the offences under Sections 279/338 of the Indian Penal Code, 1860 (‘IPC’). Signature Not Verified Signed By:DEEPANSHU Signing Date:06.06.2025 19:08:40 CRL.L.P. 416/2018

2. The brief facts of the case are that on 30.05.2000, at about 9:30 AM, at main Najafgarh Road, the respondent while allegedly driving his bus no. DL-1P 6635 in a rash and negligent manner had hit one cyclist thereby causing grievous injuries to the victim. The respondent was charged with offences under Sections 279/338 of the IPC.

3. The learned Metropolitan Magistrate, by order dated

30.05.2014, convicted the respondent of the charged offences.

4. By the impugned judgment, the learned ASJ acquitted the respondent of the charged offences. It was noted that as per the case of the prosecution when the investigating officer had reached the site of the accident, he could not find any eyewitness of the accident, and the injured had also been taken to the hospital. It was noted that except the victim/PW-4, there was no material or eye witness to the said accident. It was noted that no passenger, conductor or any person located in the vicinity of the scene of the crime were examined or cited. It was noted that the case of the prosecution rested on the solitary testimony of the victim/PW-4 which was not without contradictions.

5. It was noted that in his statement under Section 161 of the Code of Criminal Procedure, 1973 (‘CrPC’), PW-4 had neither named the respondent nor had he given any description of the driver of the bus who had allegedly caused the accident. It was noted that the respondent was not even previously known to PW-4 and was Signature Not Verified Signed By:DEEPANSHU Signing Date:06.06.2025 19:08:40 CRL.L.P. 416/2018 identified for the first time in Court. It was noted that no test identification parade was conducted in the present case.

6. It was noted that it was the case of the prosecution that the bus driven by the respondent was present at the place of the accident in an accidental condition. It was however noted that as per the Mechanical Inspection Report, there was no fresh damage on the bus number DL- 1P 6635 when the same was mechanically inspected on 30.05.2000 – the day on which the accident took place. Considering the aforesaid, the learned ASJ acquitted the respondent of the charged offences.

7. 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 PW-4 had categorically deposed that the respondent while driving his bus in a rash and negligent manner, had caused injuries to him. He submitted that minor inconsistencies are not fatal to the case of the prosecution and ought to be ignored. Analysis

8. 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 Signature Not Verified Signed By:DEEPANSHU Signing Date:06.06.2025 19:08:40 CRL.L.P. 416/2018 in the case of State of Maharashtra v. Sujay Mangesh Poyarekar : (2008) 9 SCC 475 held as under: “19. Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) declares that no appeal “shall be entertained except with the leave of the High Court”. It is, therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by sub-section (3) of Section 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub-section (3) of Section 378 of the Code. 20. In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside. 21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” and, hence, no leave should be granted.

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 testimonies of the relevant material, sworn must consider 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 Signature Not Verified Signed By:DEEPANSHU Signing Date:06.06.2025 19:08:40 CRL.L.P. 416/2018 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 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.” reappreciation, scrutiny and (emphasis supplied)

9. In the present case, the prosecution has sought to base its case on the testimony of PW-4, the injured victim. PW-4 in his evidence stated that on 30.05.2000 at about 9:30 AM when he was going to Uttam Nagar on his bicycle, the bus driven by respondent came from the back side and hit his bicycle as a result of which he sustained injuries. The victim also identified the respondent to be the one who was driving the bus.

10. In the present case, the respondent was charged with offences under Sections 279/338 of the IPC. While delineating the meaning of the term rashness, the Hon’ble Apex Court in the case of Mohd. Aynuddin v. State of A.P. : (2000) 7 SCC 72 observed as under: “9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver Signature Not Verified Signed By:DEEPANSHU Signing Date:06.06.2025 19:08:40 CRL.L.P. 416/2018 of a vehicle to adopt such reasonable and proper care and precaution.”

11. 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 Signature Not Verified Signed By:DEEPANSHU Signing Date:06.06.2025 19:08:40 CRL.L.P. 416/2018 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.”

12. In the present case, the material on record falls short of establishing rashness or negligence on the part of the respondent beyond reasonable doubt. While the prosecution has sought to base its case on the testimony of PW-4, it is evident that at the time of registration of the FIR, PW-4 had failed to give any description of the driver of the bus who had allegedly caused the accident. As noted by the learned ASJ, no test identification parade was conducted in the present case, and that PW-4, for the first time, had identified the respondent when he was present in the Court.

13. It is further pertinent to note that the accident took place in a public place at around 9:30 AM. Despite the same no passenger, conductor or any person located in the vicinity of the scene of the crime were examined or cited.

14. Furthermore, the mechanical inspection report of the bus conducted on the day on which the accident took place on 30.05.2000 indicated there was no fresh damage on the bus number DL-1P 6635. Mere allegation that the respondent was rash and negligent which led to the accident in the absence of attendant circumstances, does not suffice to prove that the respondent was driving his vehicle in a rash or negligent manner.

15. Upon a consideration of the totality of facts and circumstances, this Court does not find any infirmity in the impugned judgment, and Signature Not Verified Signed By:DEEPANSHU Signing Date:06.06.2025 19:08:40 CRL.L.P. 416/2018 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.

16. The leave petition is therefore dismissed in the aforesaid terms. MAY 28, 2025 AMIT MAHAJAN, J Signature Not Verified Signed By:DEEPANSHU Signing Date:06.06.2025 19:08:40 CRL.L.P. 416/2018