Himachal Pradesh High Court
Kashmir Singh (Since Deceased) And vs State Of H.P on 26 March, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 103 of 2008.
.
Date of decision: 26.3.2015.
Kashmir Singh (since deceased) and substituted by his wife Rajo Devi ...... Petitioner.
Vs.
State of H.P. ..... Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? No 1 For the petitioner : Mr. R.S.Gautam, Advocate. For the respondent : Mr. Rupinder Singh, Additional Advocate General with Ms. Parul Negi, Dy. Advocate General.
Tarlok Singh Chauhan, Judge ( Oral):
The petitioner, who died during the pendency of this petition assailed his conviction and sentence as awarded by the learned Judicial Magistrate Ist Class, Hamirpur and affirmed by the learned Sessions Judge, Hamirpur convicting him under sections 279, 338, 304-A IPC and sentencing him to undergo simple imprisonment for a period of one month and to pay a fine of Rs.1,000/- under section 279 IPC, sentenced to undergo simple imprisonment for a period of three months for an office under section 338 IPC and fine of Rs. 1000/- and further sentenced to undergo simple imprisonment for a period of six months for the offence under section 304-A IPC and fine of Rs.1000/-.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 17:53:34 :::HCHP ...2...
2. The facts as emerge out from the prosecution story are that on 5.5.2000 at about 10.35 a.m., the Medical Officer reported to .
the police that an accident had taken place between a bus and motor- cycle, wherein deceased Rattan Chand and his wife sustained injuries. The deceased Rattan Chand was riding motorcycle bearing No. HPK-9044 alongwith his wife PW 11 Kamla Devi. On 5.5.2000 when they were proceeding towards Barara from their residence in Anu and reached at Thana Drogan, bus No. HP-22-0352 being driven by the deceased- petitioner came from opposite and struck against the motorcycle resulting in the injuries of driver and the pillion rider. The victims were shifted to Primary Health Centre, Tauni Devi from where the Medical Officer concerned telephonically informed the police of Police Station, Hamirpur vide rojnamcha Ex. PW 4/A about the accident.
3. ASI Swami Ram PW 10 proceeded to the spot and recorded the statement of PW 11 Kamla Devi Ex. PW 10/B, on the basis of which a formal FIR Ex. PW 6/B came to be registered. The Investigating Officer proceeded on the spot and prepared the site plan. The photographs of the spot were also got clicked and motorcycle alongwith its documents were taken into possession.
4. The bus being driven by the deceased-petitioner was also taken into possession alongwith its log book. The victims of the accident Rattan Chand and his wife Kamla Devi were medically examined. However, later on Rattan Chand succumbed to his injuries. Witness Kamla Devi had a fracture on the upper end of her humerus bone right arm. The bus is stated to have been mechanically ::: Downloaded on - 15/04/2017 17:53:34 :::HCHP ...3...
examined and found to be mechanically in order. However, its right side body about 3½ feet above the ground was found to be .
scratched. The motorcycle was also mechanically examined and its hand brake lever was found to be broken, head light frame was dented, leg-guard alongwith silencer was found to be cracked. The right side handle was also found to be cracked, while the front side mud guard was found to be dented.
5. The prosecution examined as many as 16 witnesses and closed its evidence vide order dated 15.6.2006. The accused- petitioner was examined, under section 313 Cr.P.C., wherein he denied all the allegations made against him. However, the accused did not lead any evidence in his defence. The learned Magistrate convicted the accused as aforesaid and the appeal filed by him was also ordered to be dismissed and that is how the matter is now before this court.
6. The alleged eye witnesses of the accident are PWs 8, 11 and 13. PW 8 Ramesh Chand in his statement only states that the ill- fated bus of which the deceased-petitioner was admittedly the driver was being driven at a high speed. PW 11 Kamla Devi is the complainant herself, who also states that bus was being driven by the deceased-petitioner at high speed and it collided with the motorcycle being driven by her deceased husband. The last eye witness to the incident is PW 13 Kamlesh Kumar, who deposed that motorcycle was being driven on its own side when the bus collided with the same.
7. While it would be seen from the evidence that driver may have been driving the vehicle in speed, but then there is no evidence ::: Downloaded on - 15/04/2017 17:53:34 :::HCHP ...4...
to show that the same was being driven in a rash and negligent manner. High speed in itself may not in each case sufficient to hold .
that the driver is rash and negligent. To constitute an offence, under section 279 and 304 -A IPC, it must be shown that person was driving the vehicle in a rash and negligent manner.
8. Further, in order to constitute an offence, under section 279 IPC the point to be established is that the accused was driving the vehicle on a public way and that he was driving the same in a rash or negligent manner. Similarly to constitute an offence, under section 304-A IPC, the prosecution has to establish that the act of the accused was responsible for resulting in death and such act of the accused was rash and negligent, although, it did not amount to culpable homicide. Therefore, to constitute either of these offences, the proof of rashness or negligence is essential.
9. The only distinguishing feature is that under section 279 IPC the rash and negligent act made punishable relates to the manner of driving or riding on a public way, while the offence under Section 304-A IPC extends to any rash or negligent act falling short of culpable homicide. Therefore, before coming to a conclusion that a person is guilty of offence under section 304-A IPC, it must be established that the rash or negligent act was direct or proximate cause of the death. In other words, it must be causa causans and it is not enough that it must have been the cause sine qua non. Likewise in absence of any proof to the effect that petitioner was driving the vehicle in a rash and negligent manner, the provisions of section 338 IPC are also not attracted, because sine qua non for the applicability ::: Downloaded on - 15/04/2017 17:53:34 :::HCHP ...5...
of this provision is that the act complained of must be rash or negligent.
.
10. In the instant case all that the prosecution has been able to establish is that accused -petitioner had been driving the vehicle in high speed. There is no other evidence or circumstance to indicate that the driver was in fact rash or negligent.
11. The conviction of the accused, who died during the pendency of this petition and his wife was permitted to continue with the same therefore, is not sustainable and accordingly the present petition is allowed and the conviction and sentence imposed upon the petitioner by the trial court and affirmed by the learned Sessions Judge are set-aside.
March 26, 2015. ( Tarlok Singh Chauhan ),
(Hem) Judge.
::: Downloaded on - 15/04/2017 17:53:34 :::HCHP