Himachal Pradesh High Court
Mohinder Singh vs Of on 15 July, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision Nos. 161 &163 of 2009.
Reserved on 28.6.2016
.
Date of Decision: 15.7.2016
______________________________ _________________________
[
1. Cr.R. No. 161 of 2009
Mohinder Singh .........Petitioner.
Versus
of
State of Himachal Pradesh ..........Respondent.
2. Cr.R. No. 163 of 2009
rt
Gurdyal Singh .........Petitioner.
Versus
State of Himachal Pradesh ..........Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? yes
For the petitioner(s): Mr. N.K. Thakur, Senior Advocate
with Ms. Jamuna, Advocate, for
the petitioner in Cr.R. No. 161 of
2009.
Mr. Ajay Sharma, Advocate, for the
petitioner in Cr. R No. 163 of 2009.
For the respondents: Mr. Rupinder Singh Thakur,
Additional Advocate General, with
Mr. Rajat Chauhan, Law Officer.
_________________________________________________________
Whether reporters of the Local papers are allowed to see the judgment? Yes.
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Sandeep Sharma, J.
Both the criminal appeals are being taken up .
together for disposal by this Court since in both the appeals, challenge has been laid to common judgment dated 15.10.2009 passed by the learned Additional Sessions Judge, Una, HP in Criminal Appeal Nos. 24 and 25 of 2008.
of Moreover, proceedings in both the petitions have arisen from the same accident occurred on 4.2.2005.
2. rt Instant criminal revision petitions filed under Section 397/401 Cr.PC are directed against the judgment of conviction and sentence dated 15.10.2009 passed by the learned Additional Sessions Judge, Una in Criminal Appeals No. 24 and 25 of 2008, affirming the judgment of conviction and sentence dated 16.5.2008 and 27.5.2008 rendered by the learned Judicial Magistrate, 1st Class, Court No. 1, Amb District Una, HP in Criminal Case No. 120-I-2005/65-II-2005.
3. In nutshell, the story of the prosecution is that petitioners Mohinder Singh and Gurdyal Singh (in short accused No.1 and accused No.2 respectively), were deployed as driver as well as conductor respectively on the ::: Downloaded on - 15/04/2017 20:49:37 :::HCHP -3- bus bearing No. HP-20-5581 belonging to Parmar International School, Una. As per story of prosecution, on .
4.2.2005 at around 2:30-2:45 PM when the complainant Pardeep Kumar PW8 was sitting in the shop at Gondpur Banehra, District Una, bus in question came there to drop the school children. Three children were made to alight from the of said bus. Two of the children went towards their home, whereas one child namely Diksha started moving towards rt the house. In the meantime, accused No.2 (conductor) blew the whistle and accused No. 1 (driver) drove the bus rashly as a result of which Diksha fell down, as noticed by the complainant. Story put forth by the prosecution further reveals that Diksha and the complainant raised hue and cry but accused persons did not pay any attention and Diksha got crushed under the rear tyres of the bus in question, as a result of which she died on the spot. The complainant immediately after occurrence informed the police telephonically. Police came to the spot and recorded the statement of the complainant PW8 under Section 154 Cr.PC, on the basis of which, FIR was registered and investigation ::: Downloaded on - 15/04/2017 20:49:37 :::HCHP -4- was carried out. Police also got conducted the post mortem of the deceased Diksha, wherein it was found that deceased .
died due to ante mortem crush injuries of skull and brain.
Police also prepared spot map Ext.PW-10/A and recorded the statements of witnesses under Section 161 Cr.PC. Police after completion of codal formalities also took into custody of the bus which was later released on spurdari. Police also got the photographs Ext.P7 to P9 clicked of the spot. Police after rt completion of the investigation found that prima facie case exists against the accused persons and accordingly, challan was presented against them in the court of learned Judicial Magistrate, Ist Class, Court No.(I), Amb, District Una on 13.5.2005.
4. Learned trial court having satisfied that prima facie case exists against the accused put notice of accusation to them to which they pleaded not guilty and claimed trial.
5. Prosecution with a view to prove its case examined ten witnesses. Learned trial Court also recorded the statement of accused under Section 313 Cr.PC, wherein ::: Downloaded on - 15/04/2017 20:49:37 :::HCHP -5- they stated that witnesses have deposed falsely against them, however, they did not lead any evidence in their .
defence.
6. Learned trial Court on the basis of material evidence made available on record came to the conclusion that accused No.1 is guilty of having committed offences of under Sections 279, 304-A of the Indian Penal Code and accused No.2 under Section 304-A of the Indian Penal Code.
rt Learned trial Court vide separate order dated 27.5.2008 sentenced and convicted accused No.1 Mohinder to three months' rigorous imprisonment and fine of Rs. 1,000/- under Section 279 of Indian Penal Code and in default, to further undergo simple imprisonment of one month and under Section 304-A Indian Penal Code, to undergo rigorous imprisonment of one year and fine of Rs. 2000/- and in default, to further undergo two months' simple imprisonment, whereas, accused No.2 Gurdyal was sentenced to one year rigorous imprisonment and fine of Rs. 2,000/- under Section 304-A of the Indian Penal Code and in default, to further undergo simple imprisonment for two months.
::: Downloaded on - 15/04/2017 20:49:37 :::HCHP -6-7. Being dis-satisfied with the judgment of learned trial court, accused persons filed appeals under Section 374 .
Cr.PC in the Court of learned Additional Sessions Judge, Una, HP, which were dismissed vide judgment dated 15.10.2009.
Hence, these criminal revision petitions before this Court.
8. Mr. N.K. Thakur, Senior Advocate duly assisted of by Ms. Jamuna, and Mr. Ajay Sharma, Advocate, appearing for the respective petitioners/accused persons vehemently rt argued that judgments of conviction and sentence passed by the courts below are not sustainable at all and deserve to be quashed and set-aside as they are not based on correct appreciation of evidence available on record. They further argued that material adduced on record by the prosecution nowhere suggests that the accused were driving the vehicle in question in rash and negligent manner. They forcefully contended that both the courts below failed to analyze/appreciate the evidence available on record in its right perspective, rather, they swayed with the fact that school girl Diksha died in accident, which could not be a ground to hold that bus was being plied rashly and ::: Downloaded on - 15/04/2017 20:49:37 :::HCHP -7- negligently. During arguments having been made by them, they made this Court to travel through the statements .
recorded by the learned trial Court of the prosecution witnesses. They contended that it has come in the evidence when children were de-boarded from the bus and there was a car standing on the left side of the bus and suddenly, car of started and girl namely Diksha got frightened and ran towards the bus and struck with the bumper of the bus.
rt Hence, it cannot be concluded that the death of Dikhsa was caused due to rash and negligent act of the accused persons. They forcefully contended that both the courts below have fallen in grave error in holding that the death of Diksha has been caused due to rash and negligent attitude of the accused. Specific attention of this Court was invited to the statement of PW2, who was cited as eye witness by the prosecution. PW2 in his statement stated that there was a car parked at the left side of the bus in question and when the car was started by its driver, the deceased moved towards the bus and struck against the bus and, as such, aforesaid fact itself suggests that accused were neither rash ::: Downloaded on - 15/04/2017 20:49:37 :::HCHP -8- nor negligent and they could not be held liable for causing accident. Apart from above, they made this court to peruse .
the statements given by PWs 2 and 8 to demonstrate that there are material contradictions and discrepancies in the story put forth by the prosecution, which makes the prosecution case doubtful and accused were entitled for the of grant of benefit of doubt. While concluding their arguments, both the counsel stated that courts below have not returned rt findings on the basis of material available on record, rather, they swayed with the emotion especially after noticing that one person Diksha has lost her life in the accident. Finally, learned counsel appearing for the petitioners prayed that present petitions may be allowed and the judgments of courts below be quashed and set-aside.
9. On the other hand, Mr. Rupinder Singh Thakur, learned Additional Advocate General, assisted by Mr. Rajat Chauhan, Law Officer, supported the judgments passed by courts below and submitted that no interference, whatsoever, of this Court is called for, in the facts and circumstances, where it stands duly proved that accident in ::: Downloaded on - 15/04/2017 20:49:37 :::HCHP -9- question occurred due to rash and negligent act of the accused persons. Mr. Thakur, while making submission on .
behalf of respondent-State with a view to prove that prosecution was successful to prove its case beyond reasonable doubt, invited attention of this Court to the statement given by PW2, who was present at the time of the of accident. As per Mr. Thakur, PW2 in no specific terms has stated that accident has occurred due to rash and negligent rt driving of the accused. He strenuously argued that the vehicle in question belonged to school and as such, accused persons were expected to exercise due care and caution while dropping the school children. But in the present case, it has specifically come on record that accused No. 2 blew the whistle immediately after alighting the children from the bus and without ensuring that children are not standing near the bus, signaled to the driver to move the bus. It is also contended on behalf of the State that this Court has very limited powers while exercising its revisionary powers under Section 397 Cr.PC to re-appreciate the evidence, especially, when it stands duly proved that the judgments of both the ::: Downloaded on - 15/04/2017 20:49:37 :::HCHP
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courts below are based on correct appreciation of the evidence available on record and they have been dealt .
with very meticulously by the courts below. Mr. Thakur, also invited attention of this Court to the law laid down by the Hon'ble Apex Court in State of Punjab versus Saurabh Bakshi 2015 (5) SCC 182.
of
10. I have heard learned counsel for the parties as well carefully gone through the record.
11. rt True, it is that this Court has very limited powers under Section 397 Cr.PC while exercising its revisionary jurisdiction but in the instant case, where accused have been convicted and sentenced, it would be apt and in the interest of justice to critically examine the statements of the prosecution witnesses solely with a view to ascertain that the judgments passed by learned courts below are not perverse and same are based on correct appreciation of the evidence on record.
12. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble Apex Court in Krishnan and another ::: Downloaded on - 15/04/2017 20:49:37 :::HCHP
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Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a .
failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness of committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the rt judgment is reproduced as under:-
8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide.
However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is ::: Downloaded on - 15/04/2017 20:49:37 :::HCHP
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but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness .
committed by inferior criminal court in its judicial process or illegality of sentence or order."
13. In the present case, admittedly, accused persons were deployed as driver and conductor of bus in question on 4.2.2005, when this unfortunate incident of occurred. Since vide judgment dated 16.5.2008, learned trial Court held both the accused guilty of having committed rt offences, on the same set of evidence, this Court deemed it fit to dispose of these petitions together by a common judgment because sentence/conviction recorded by the learned court below is based upon the same set of evidence.
14. It is undisputed that on 4.2.2005, at around 2:30- 2:45pm, bus in question reached Gondpur Banehra to drop the school children. It is also undisputed that at that time, accused Nos. 1 and 2 (driver and conductor) were deployed in the aforesaid bus. In the present case, as emerged from the record, there are two persons (PW2 and PW8), who witnessed the unfortunate accident, however, prosecution ::: Downloaded on - 15/04/2017 20:49:37 :::HCHP
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with a view to prove its case examined as many as ten prosecution witnesses.
.
15. Since, learned trial Court while holding the accused guilty of having committed offences under Sections 279 and 304-A have heavily relied upon the statement given by PWs 2, 5 and 8, this Court at this stage while examining of whether the judgments of courts below are based upon correct appreciation of the material available on record, rt intends to deal with the statement rendered by these aforesaid witnesses at first instance.
16. PW8 Pardeep is the complainant in the present case and it would be appropriate to analyze his statement at the first instance. Careful perusal of depositions made by PW8 suggests that he was eye witnesses to the alleged incident. In his statement made in examination-in-chief, he stated that he runs a shop at Gondpur Banehra and on 4.2.2005, it was 2:30-2:45 pm, when he was at his shop, bus in question of Parmar International School came there to alight the school children. According to him, three children were deboarded from the bus and two children went towards their ::: Downloaded on - 15/04/2017 20:49:37 :::HCHP
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house whereas girl namely Diksha, who was also de-boarded by the Conductor ( accused No.2), started moving by the .
side of the bus. He further stated that when Diksha reached in front of the bus, Conductor blew the whistle and driver moved the bus without noticing the children. He further stated that bumper of the bus struck with Diksha and she fell of down and he raised alarm but driver of the bus did not stop the bus. He also stated that Diksha tried to rise/get up but rt shaft of the bus struck against her and she was crushed against the rear tyres of the conductor side of the bus, as a result of which, she died on the spot. He also proved Ext.PW8/A i.e. statement recorded by police after incident on the spot of occurrence. He also identified both the accused in the Court. He in his statement stated the Conductor is more at fault because he had blown the whistle without noticing that a child was moving near the bus, however, in his cross-examination, he could not recollect that he had disclosed to the police that two other children had boarded off the bus, when he was confronted with his statement recorded by the police that Diksha was boarded ::: Downloaded on - 15/04/2017 20:49:37 :::HCHP
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off by the conductor of the bus and thereafter, she started moving parallel to the bus and when she reached in front of .
the bus conductor blew the whistle. He in his cross-
examination also admitted that house of Diksha was just behind his shop. He also failed to recollect that he had disclosed to the police in his statement that bumper of the of bus struck against her, as a result of which, she fell down and he had raised alarm. However, fact remains that the rt aforesaid witnesses admitted that he had not disclosed that when the girl tried to stand, she was pushed by the shaft of the bus. He also stated that deceased girl had alighted from front door of the bus, however, he denied the suggestion put to him that car was standing in front of his shop, where the bus came to alight the children. He also denied another suggestion put forth by the defense to the effect that the driver of the car suddenly moved the car and as a result of which, girl moved towards the bus and she was crushed by the tyre of the bus. In his cross-examination, he also admitted that he and parents of the deceased are from the same village but he categorically denied the suggestion that he is ::: Downloaded on - 15/04/2017 20:49:37 :::HCHP
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falsely deposing against the accused. In his statement, he also stated that the front tyre of the bus was on un-tarred .
portion of the road, whereas rear tyres were on the tarred portion of the road. However, further stated that when the accident took place, the bus stopped.
17. PW2 namely Pardeep Kumar S/o Shri Shiv Ram, of appeared as prosecution witnesses and stated that on alleged date 2:30 to 2:45, children were alighted from the rt bus in question. He further stated that at that time ,one car was standing on the left side of the bus and when driver of the car moved suddenly, deceased girl moved towards the bus and incident occurred. He further stated that incident has occurred due to fault of the car driver. Record further reveals that PW2 was declared hostile since he had resiled from the statement made under Section 161 Cr.PC. In his cross-examination, he admitted that girl child was moving towards the house. He also admitted that driver of the bus did not look towards the left and right side of the bus. He further admitted that girl was crushed under the rear tire of the bus. In his cross examination, he also admitted/stated ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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that had the car driver not moved the car suddenly, this accident would not have occurred. He also admitted that .
when the girl moved towards the bus, her hand touched the rear tyres of the bus and she slipped and accident occurred.
In the court, question put to this witness "whether the driver of the bus was at fault?" This witnesses categorically stated that of had there been no car on the scene, girl could/would have been saved.
18. rtPW 5 Dr. N.S. Dogra, conducted the post mortem of the deceased and gave its report Ext.PW5/A, stated that deceased died due to ante-mortem crush injury on skull and brain. Ravi Kant, who had taken photographs of the bus Ext.P1 to P3 also proved the same on record appearing as PW7.
19. PW10 HC Sartaj Singh, I.O, also stated that he carried out the investigation in terms of FIR lodged after the accident. He in his cross examination, denied that during the investigation, it was revealed that when the children were alighted from the bus, a car was parked on the left side of the bus. He also denied that as per investigation, the car ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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suddenly started moving and the deceased child started walking towards the bus and hence, accident occurred.
.
However, in his cross-examination, he admitted that children were boarded off by the Conductor from the rear door of the bus.
20. Conjoint reading of these aforesaid witnesses of clearly establishes that at about 2:30-2:45pm, an unfortunate incident occurred at Gondpur Banehra and one child rt namely Diksha lost her life on the spot. But at this stage, after perusing the depositions made by this aforesaid prosecution witnesses, one thing which requires to be ascertained by this Court is whether alleged accident actually occurred due to rash and negligent driving/act of the accused, who were on duty on that day as driver and conductor of the bus in question? Careful perusal of the statement given by PW8 suggests that at Gondpur Banehra, three children were deboarded from the bus and out of them, two went towards their houses while deceased started moving parallel to the bus and when she reached in front of the bus, conductor blew the whistle and driver moved the bus, as a result of ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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which, alleged accident occurred and child got crushed under the rear tyres of the vehicle in question. At this stage, .
after reading aforesaid portion of the statement made by PWs2 and 8, two things clearly emerge that bus was stopped at Gondpur Banehra and children were made to alight /deboard from the bus by the conductor because as per of statement of PW8, deceased Dikha was de-boarded from the bus by the conductor. It has also come on record that rt after boarding off from the bus, two children went towards their houses and deceased Diksha started moving parallel to the bus but interestingly, PW8 in his statement categorically stated that bus stopped in front of his shop and it has also come in his statement that deceased Diksha resided at a house behind his shop. Now, it remains unexplained that when two of children went towards their houses why deceased Diksha moved towards the bus when as per version of PW8, her house was behind the shop of PW8. One thing clearly emerges from the aforesaid statement made by PW8 that bus was stopped and then children were allowed to alight from the bus and, as such, it cannot be said that ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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accused Nos. 1 and 2 (driver and conductor) were negligent and they had not exercised due care and caution while .
making children alight from the bus, rather, it emerge from the statement of PW8 that deceased Diksha was alighted from the bus by conductor (accused No2.). Had it been the case of the prosecution that children of school were made of to de-board from the running bus, it could be concluded that driver and conductor were negligent and they had not rt exercised due care and caution while de-boarding the children from the school bus. In the present case, as clearly emerge from the statements rendered by material prosecution witnesses, bus was stopped and children after getting boarded off from the bus, went towards their houses, meaning thereby, they were allowed to board off from the bus safely and there was no negligence, whatsoever, on the part of the driver and conductor till that stage. But as has been put forth by PW8 that after deboarding from the bus deceased moved parallel to the bus and when she reached near the front of the bus, conductor blew the whistle and driver of the bus moved the bus, as a result of which, ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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accident occurred. At this stage, statement of this witness is required to be dealt with very cautiously, especially, when he .
has stated that deceased Diksha moved parallel to the bus and when she reached at the front of the bus, whistle was blown and driver moved the bus. These witnesses also stated that when she struck against the bumper of the bus, she fell of down and later on she got crushed under the rear tyres of the conductor side of the bus. It is not understood and rt explained in any manner that if deceased as stated by PW 2, was hit by the front bumper of the bus, how she could be crushed under the left rear tyres of the bus. If story put forth by PW8 is considered to be true that at the first instance, deceased was hit by the front bumper of the bus, as a result of which, she fell down, deceased would have not been crushed below the left rear tyre. Had she fell with the impact of hitting by front bumper, she would have crushed below front tyres, but interestingly, in the present case, this PW8 stated that Diksha after getting alighted from the bus started moving parallel to the bus and when she reached in front of the bus, she was hit by the bumper of the bus, as a result of ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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which, she fell down. He also stated that after she fell down, he raised hue and cry and deceased tried to get up but she .
was hit by shaft of the bus and thereafter, she was crushed by the rear tyre of the bus. This Court is unable to accept the aforesaid version of PW8, who is a material witness because as per version of PW8, Diksha was hit from the front side of the of bus. If another part of the statement where the PW8 stated that later on Diksha was hit by shaft, is taken to be correct, rt then story of deceased getting crushed under the rear tyre is not plausible and trustworthy at all. At this stage, it is not understood that after hitting by the front bumper, how deceased could be again hit by shaft, which is as per the knowledge of this Court remains installed in the middle of the bus just below the seat of driver. If there is any correctness in the story of prosecution that deceased was hit by shaft, in no circumstances, deceased would have been crushed under the rear tyres. This Court just to ascertain the genuineness and correctness of the version put forth by this PWs also perused the photographs Ext.P1to P3, careful perusal of which, suggests that head of the deceased has been ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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crushed but there appears to be no injury on the other parts of the body, which is further supported in the post mortem .
report Ext.PW5/A. But careful perusal of the photographs suggests that body of the deceased, is lying just behind the rear tyres of the bus. This Court after seeing the size of the rear tyres of the bus, which are admittedly two in numbers, is of unable to accept /digest that only head of the deceased Diksha was crushed in the accident. After seeing rt photographs, especially, seeing the size of the tyres of the bus, this court is of the view that had deceased got crushed under the rear tyres of the bus, probably in that case, her entire body would have been got crushed. Another thing which emerge after seeing photographs is that statement given by PW8 that bus was not stopped by the driver after accident also appears to be not correct because photographs suggests that body of the deceased is just lying adjacent to the rear tyres of the vehicle. Now if the story put forth by PW8 is considered from another angle, where he stated that after getting hit from shaft, Diksha fell and later on crushed under the rear tyres, his story of getting hit by shaft ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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does not appear to be plausible because shaft of the vehicle is just below the seat of the driver, rather, in the .
middle of the bus. At the first instance, there is no possibility of getting hit by shaft but if at all, it is believed to be true then in that eventuality also, bus would have crossed above her body and crushed her as a whole. But as emerges from the of photographs as well as Post Mortem Report rendered by PW5, injury has been only caused to the head of the deceased.
rt
21. Care perusal of the photographs also suggests that body of the deceased is lying behind the rear tyres of the bus, which is below the rear tyre. But in the present case, as per version put forth by PW8 deceased at the first instance was hit by the front bumper of the bus. Hence deposition made by PW8 giving sequence of incident appears to be untrustworthy and unrealistic, especially, after perusing the photographs.
22. This PW8 in his statement categorically stated that deceased was made to alight from the bus by the Conductor and thereafter, she started moving parallel to the ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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bus and when she reached near the front of the bus, Conductor gave a whistle and driver moved the bus. One .
thing clearly emerges from his statement that deceased along with other children was de-boarded from the bus safely and it is only when she started moving towards her house, Conductor blew the whistle and driver moved the of bus. Hence, it cannot be concluded that accused persons were negligent and they had not exercised due care and rt caution while making school children alight from the bus, rather, there is ample evidence available on record to suggest that accused very carefully made the deceased including other school children de-board from the bus and it is only that after when they boarded off from the bus, accused blew the whistle and driver moved the bus in forward direction. PW2 turned hostile but he also categorically admitted in cross examination that driver of the bus did not look towards the left and right side of the bus and struck against deceased, who was unfortunately in front of the bus. Aforesaid admission of the PW2, wherein he stated that deceased Diksha was in front of the bus also ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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corroborate the version of the PW8, but as has been discussed above, had deceased got hit from the front .
bumper, she would have got crushed under the front tyre after falling down. In the present case, PW2 and PW8 categorically stated that at the first instance, deceased Diksha was got hit by the front bumper of the bus. It is of difficult to accept that after getting hit from the front bumper of the bus, deceased Diksha got later on crushed under the rt rear tyres of the vehicle. If story put forth by these witnesses are considered to be true, at this stage, where they stated that at the first instance she was hit by front bumper and subsequently, by shaft, in that eventuality, deceased would have fallen in the middle of the bus and her entire body would have got crushed under the rear tyres of the bus. PW 2 in statement also stated that one car was also parked at the spot, where the children were de-boarded from the bus and deceased after seeing the car moving towards the bus fell down and thereafter, got crushed under the rear left tyre of the vehicle. He categorically stated that had the car driver not started the car, Diksha would not have been ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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crushed. But interestingly, there is no whisper with regard to presence of Car in the story put forth by prosecution, rather, .
PW10, denied the suggestion put to him by the defence that at the time of accident, car was standing/parked near the bus. PW8 in his statement also stated that front tyre of the bus was on the kacha portion, whereas left rear tyres of the of bus were on the tarred portion of the road. Now at this stage, if the story of the prosecution as put forth by PW2 is rt presumed to be correct, where he stated that deceased was hit by the front bumper of the bus, in that eventuality, deceased would have fallen on the kacha portion of the road but admittedly in the present case, she has been shown to be crushed under the left rear tyre of the bus, which as per the photographs as well as spot map Ext.PW3/A are on the tarred portion of the road. Hence this court after perusing the photographs as well as spot map really finds it difficult to trust the story of the prosecution that the deceased was got crushed under the rear tyres of the vehicle.
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23. This court has no hesitation to conclude after perusing the depositions made by PWs 2, 5 and 8 that there .
are major contradictions in their statements. PW2 has been not specific at all with regard to the narration of the incident occurred at that relevant time, rather he stated so many things which he actually not got recorded to the police while of making statement under Section 161 Cr.PC, however, when he was confronted with the statement given by him to the rt police, he only stated at that time, he was nervous so he failed to report some material facts to the police at the time of recording his statement. Interestingly, prosecution for the reasons best known, it has not chosen to cite some more independent witnesses from the locality/bazaar, especially, when this accident occurred in day time that too in market of the Gondpur Banehra. Prosecution only chose to cite 2 witnesses PWs No. 2 and 8. PW 2 has not supported the case of the proseuciton at all, rather, he categorically stated that incident occurred due to negligence of car driver, whereas PW8 denied the factum of presence of car at the site of occurrence. There is also contradictions with regard to the ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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door from which deceased child got alighted. As per PW8 deceased got alighted from the bus from rear door, whereas .
PW2 and PW10 stated that she was made to alight from the front door. Hence, this court is of the view that courts below have lent undue credence to the statement given by PW 8 and without ascertaining the correctness and genuineness of of the statement of this aforesaid PW8 recorded finding that accused are guilty of having committed offences under rt Sections 279 and 304-A of the Indian Penal Code.
24. Admittedly, in this unfortunate incident, one child lost her life and this court has also all sympathies for her but since there is no evidence on record to suggest that accused were negligent at the time of the accident, they cannot be held responsible for the same, rather, close scrutiny of the statement given by PWs clearly suggests that both of the accused had exercised due care and caution at the time of alighting/deboarding the children from the bus and it is only after children alighted from the bus, deceased Diksha moved parallel to the bus and the unfortunate accident occurred.
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25. It also emerge from the statement of the prosecution that incident , if any, occurred immediately after .
alighting of the children from the bus, meaning thereby at that relevant time speed of the bus was negligible, otherwise also none of the PWs have stated that bus was being plied rashly and negligently. Since there is nothing on record to of suggest that bus was being plied in high speed, it cannot be concluded that accused was driving rashly and negligently rt at that time. As far as negligence part is concerned, this court, after examining the evidence on record, is of the view that due care and caution was exercised by the accused persons in alighting the children from the bus and as such they cannot be termed as negligent.
26. In the present case, it appears that courts below after seeing that one girl has died in unfortunate accident got swayed in emotions and without critically analyzing the evidence adduced on record by the prosecution erroneously concluded that accused are guilty of having committed offences under Sections 279 and 304-A of the Indian Penal Code.
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27. In the instant case, as have been observed above, there is no evidence suggestive of the fact that .
vehicle was being plied rashly and negligently, rather evidence suggests that accused exercised due care and caution while making school children alighted from the bus nor there is any allegation/evidence that vehicle was being of pied under the influence of liquor. Hence, in the absence of specific evidence suggestive of rash and negligent act on rt the part of accused, this Court finds it difficult to hold accused guilty of having committed offences under Sections 279 and 304-A of the Indian Penal Code. In this regard, reliance is placed on judgment rendered by the Hon'ble Apex Court in Basappa v. State of Karnataka, 2014 (5) SCC154, which reads as under:-
"16. True that in the instant case the appellant has been found to be guilty of offences punishable under Sections 279 and 304-A IPC for driving rashly and negligently on a public street and his act unfortunately resulted in the loss of a precious human life. But it is pertinent to note that there was no allegation against the appellant that at the time of accident he was under the influence of liquor or any other ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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substance impairing his driving skills. It was a rash and negligent act simpliciter and not a case of driving in an inebriated condition which is, .
undoubtedly, despicable aggravated offence warranting stricter and harsher punishment."
28. Reliance is placed on judgment rendered by the Hon'ble Apex Court in Braham Dass v. State of Himachal Pradesh, (2009) 3 SCC (Cri) 406, which reads as under:-
of "2. The appellant was the driver of a bus of the Himachal Pradesh Road Transport Corporation ( rt in short the 'Corporation'). According to the prosecution version on 19.11.1991 while he was driving the vehicle, the bus had stopped at a bus stop. One passenger after alighting from the bus went to its roof top for the purpose of unloading his luggage. The accused without waiting for a signal from the conductor and without verifying if all the passengers who were to board, had boarded and who were to alight had alighted, all of a sudden started the bus as a result of which the said passenger fell down and sustained injuries. He was carried to the hospital where he succumbed. A case was registered. On complaint of investigation, charge sheet was filed and he pleaded innocence.
6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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brought on record as to how the accused- appellant was negligent in any way. On the contrary what has been stated is that one person .
had gone to the roof top and driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger was on the roof top of the bus. Learned counsel for the respondent on the other hand of submitted that PW1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus. rt
8. Section 279 deals rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."
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29. Reliance is also placed on Judgment rendered by the Delhi High Court in Abdul Subhan V. State, 2007 CRI. L. .
J. 1089, the relevant paras of which are reproduced herein below:-
"10. I now take up examination of the question of convicting a person merely on the allegation that he of was driving a vehicle at a high-speed. In State of Karnataka v. Satish (supra) the Supreme Court was faced with a similar situation. The Court observed as rt under: --
3. Both the trial court and the appellate court held the respondent guilty for offences under Section 337, 338 and 304A IPC after recording a finding that the respondent was driving the truck at a "high-speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high-speed", both the courts pressed into aid the doctrine of res ipsa loquitor to hold the respondent guilty.
4. Merely because the truck was being driven at a "high-speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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give any indication, even approximately, as to what they meant by "high-speed". "High-speed" is a relative term. It was for the prosecution to bring .
on record material to establish as to what is meant by "high-speed" in the facts and circumstances of the case. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused of always rests on the prosecution and there is a presumption of innocence in favor of the accused until the contrary is proved. Criminality is rt not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitor". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The motor vehicle inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be .
said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not of find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand rt discharged. The aforesaid observations of the Supreme Court make it more than clear that a mere allegation of high-speed would not tantamount to rashness or negligence. In the present case also, I find that apart from the allegation that the truck was being driven at a very high-speed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent. In any event there is no description or approximation of what was the speed at which the truck was being driven.
The expression "high-speed" could range from 30 km per hour to over 100 km per hour. It is not even known as to what the speed limit on Mathura Road was and whether the petitioner was exceeding that speed limit. Therefore, in the absence of material facts it cannot be said, merely because there is an allegation that the ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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petitioner was driving the truck at a high-speed, that the petitioner is guilty of a rash or negligent act. Clearly the petitioner cannot be convicted .
on the sole testimony of PW 3 which itself suffers from various ambiguities.
11. As observed in Badri Prasad (supra) the essential ingredients of Section 279 IPC are that there must be rash and negligent driving or riding on a public way of and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As regards the offence punishable under Section 304A rt IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. As observed in Badri Prasad (supra), to establish the offence either under Section 279 or Section 304A, the commission of a rash and negligent act has to be proved. The only distinction being that in Section 279, rash and negligent act relates to the manner of driving or riding on a public way while the offence under Section 304A extends to any rash and negligent act falling short of culpable homicide. As correctly observed by the learned judge, the rashness or negligence which needs to be established is something more than a mere error of judgment. There is also a distinction between rashness and negligence in that, rashness conveys the idea of doing a reckless act without considering any of its ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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consequences whereas negligence connotes want of proper care. The case in Badri Prasad (supra) was one, where, akin to the facts of the present case, apart from .
a bare statement made by a witness that the vehicle was being driven at a high-speed, there was no attempt made to establish that there was any rash and/or negligent act on the part of the driver of the vehicle. In these circumstances the court observed: --
of
6. In the case at hand, I find that except a bare statement made by PW 2 that the vehicle was being driven in a high-speed, no attempt has rt been made to establish that there was any rash and/or negligent act on the part of the driver- accused. Therefore in my considered opinion prosecution has failed to establish that death was occasioned by either rash and/or negligent driving of the vehicle or any negligent act of accused so as to attract the provisions of Section 279 and/or 304A IPC. Accordingly, conviction and consequential sentences are set aside and the accused is acquitted of the charges. Bail bonds be discharged. The criminal revision is allowed.
12. The present case is on a similar footing. Apart from the allegation of having driven the truck at a high- speed, which itself is an unclear expression, there is nothing on record to establish that the petitioner drove the vehicle rashly and/or negligently or did any act ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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which would amount to a rash and/or negligent act. Clearly, therefore, the petitioner is not liable to be convicted under the provisions of Section 279 and 304A .
IPC. The courts below have committed a grave error in convicting the petitioner and this error needs to be corrected in revision. The impugned order is, therefore, liable to be set aside and the petitioner is entitled to an order of acquittal."
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30. Reliance is also placed on Judgment rendered by the Hon'ble Apex Court in Ambalal D. Bhatt v. The State of rt Gujarat, AIR 1972 SC 1150, the relevant para No. 8 of which is reproduced herein below:-
8. It appears to us that in a prosecution for an offence under Section 304A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. If that were so, the acquittal of the appellant for contravention of the provisions of the Act and the Rules would itself have been an answer and we would have then examined to what extent additional evidence of his acquittal would have to be allowed, but since that is not the criteria, we have to determine whether the appellant's act in ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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giving only one batch number to all the four lots manufactured on 12-11-62 in preparing batch No. 211105 was the cause of deaths and whether .
those deaths were a direct consequence of the appellants' act, that is, whether the appellant's act is the direct result of a rash and negligent act and that act was the proximate and efficient cause without the intervention of another's of negligence. As observed by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap (1902) 4 Bom LR 679 the act causing the deaths "must be the rt cause causans; It is not enough that it may have been the causa sine qua non". This view has been adopted by this Court in several decisions. In Kurban Hussein Moham-medali Rangwala v. State of Maharashtra , the accused who had manufactured wet paints without a licence was acquitted of the charge under Section 304A because it was held that the mere fact that he allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it would be a negligent act, would not be enough to make the accused responsible for the fire which broke out. The cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored though this circumstance was indirectly responsible for the fire which broke out, but was also due to the overflowing of froth out ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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of the barrels. In Suieman Rahiman Mulani v. State of Maharashtra the accused who was driving a car only with a learner's licence without .
a trainer by his side, had injured a person. It was held that that by itself was not sufficient to warrant a conviction under Section 304A. It would be different if it can be established as in the case of Bhalchandra v. State of Maharashtra of that deaths and injuries caused by the contravention of a prohibition in respect of the substances which are highly dangerous as in the rt case of explosives in a cracker factory which are considered to be of a highly hazardous and dangerous nature having sensitive composition where even friction or percussion could cause an explosion, that contravention would be the causa causans.
31. The Bombay High Court has also held in The State of Maharashtra, v. Goutam, AIR 1977 CrL.J 403, which reads as under:-
"3. What I must, therefore, determine is, whether the learned trial Magistrate was right in coming to the conclusion that the prosecution has not proved rashness or negligence on the part of the accused in the present case in driving the S.T. bus in question. Going through the entire evidence in this case, I have been unable to find a single positive statement which could possibly lead the ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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Court to the conclusion that the accused was driving the vehicle in a rash or negligent manner at the time of the incident. I have already made .
my observations in regard to the statements made by some of the witnesses in regard to speed, and I need not repeat the same. I agree with the view taken by the learned trial Magistrate that the evidence led by the of prosecution in regard to question as to whether it was the tyre of the left wheel or the right front wheel that had burst is discrepant, and that the rt benefit of that material discrepancy must go to the accused. Some comment was sought to be made by Mr. Solkar on behalf of the State in regard to the force of the impact, from which he wanted me to draw the inference that the bus was being driven at a very high speed. In that connection, he relied on the fact that 11 guard stones were shown to have been dislodged by the impact of the bus, but, I am afraid, I am not prepared to draw any such inference, for the simple reason that force of the impact or what in technical language may be called the momentum, is made up of mass into velocity. Having regard to the enormous size of an S.T. bus, even if it was proceeding at a fairly slow speed the momentum of its impact with the guard stones would be very appreciable, and the guard stones in question would certainly be ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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dislodged. I am, therefore, not prepared to draw any inference of speed from the mere fact that 11 guard stones were dislodged. The bridge in .
question was only 20'-10" wide, as the panchanama (Ex.22) shows. Having regard to the width of a State Transport bus, the possibility of a pure error of judgment on the part of the accused in judging the space either on the left of side or the right side, as he entered the bridge cannot be ruled out. If misjudged the space on the left side, and in so doing went a little too far rt on the right side, once the wheels of the bus struck one guard stone after another on the right side, he would certainly lose control of the bus, particularly if at that time one of the tyres of the bus had burst, as the evidence unmistakably shows,. In the absence of any positive evidence of rashness or negligence in the present case, this possibility cannot, therefore, be ruled out altogether. In the result, both on the grounds stated by the learned trial Magistrate, as well as on the ground that the evidence in the present case fails to make out any rashness or negligence on the part of the accused, and, in any event, does not rule out the possibility of a pure error of judgment on his part which cannot amount to rashness or negligence, the conclusion arrived at by the trial Magistrate is correct. This appeal must, therefore, be ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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dismissed and the order of acquittal confirmed. Bail bonds cancelled. "
.
32. At this stage, this Court also cannot lose sight of the stern observations made by the Hon'ble Apex Court in State of Punjab versus Saurabh Bakshi 2015 (5) SCC 182, wherein it has been observed as follows:-
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25. Before parting with the case we are compelled to observe that India has a rt disreputable record of road accidents. There is a nonchalant attitude among the drivers.
They feel that they are the "Emperors of all they survey". Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". In such obtaining circumstances, we are bound to observe that the law-makers should scrutinize, relook and revisit the sentencing policy in Section 304-A IPC, so with immense anguish."
33. There cannot be any quarrel, whatsoever, with regard to the observations made by the Hon'ble Apex Court ::: Downloaded on - 15/04/2017 20:49:38 :::HCHP
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with regard to the careless/reckless driving of the drivers and drivers driving under the influence of alcohol deserves to be .
punished but in the present case, as has been discussed in detail above, prosecution has been not able to prove that accused persons were driving rashly and negligently at the time of unfortunate incident and as such, conviction of recorded by the court below deserves to be quashed and set-aside.
34. rt Consequently, in view of the detailed discussion made herein above, this Court is of the view that Criminal revision petitions preferred by the petitioners accused are allowed and judgment of conviction passed by the court below are quashed and set-aside. Petitioners are acquitted of the charges framed against them. Bail bonds, if any, discharged. Order dated 12.11.2009 suspending sentence imposed by the courts below is hereby vacated. All Pending applications, if any, are also disposed of.
15th July, 2016 (Sandeep Sharma),
manjit Judge.
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