Chattisgarh High Court
Munna Khan vs State Of M.P. (Now Chhattisgarh) on 27 March, 2003
Equivalent citations: 2004CRILJ525, 2003(2)MPHT29(CG)
Author: L.C. Bhadoo
Bench: L.C. Bhadoo
ORDER L.C. Bhadoo, J.
1. This criminal revision has been preferred by accused/applicant Munna Khan being aggrieved by the judgment dated 8th March, 1994, passed by the Seventh Additional Sessions Judge, Raipur, in Criminal Appeal No. 139/91 affirming the judgment dated 28th November, 1991, in Criminal Case No. 1023/89, passed by the Judicial Magistrate, First Class, Raipur, by which he convicted the accused/applicant under Section 304A of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for one year and pay a fine of Rs. 500/-, in default of payment of fine to undergo further simple imprisonment for one month.
2. The undisputed relevant facts for the disposal of this criminal revision are that on 29th October, 1984, deceased-Roshanlal Gupta along with complainant-Jamuna Prasad and other passengers boarded the truck bearing registration No. CPT/2598 at Village Bhesmudi to travel by truck up to Village Kharora. The driver of the said truck was the present accused/applicant. After the truck reached Village Kharora, the truck stopped and the passengers started getting down from the truck. While deceased Roshanlal Gupta was alighting from the truck, his full pant was entangled with the side iron hook of the truck and before he could alight from the truck, the truck moved forward and in the process, the deceased came beneath the rear wheel of the truck and he was crushed by the rear wheel of the truck and died at the spot. A report to that effect, Ex. P-1 was lodged by Jamuna Prasad, co-passenger in the Police Station, Kharora. The Officer-in-Charge of the police station after registering the case started the investigation. The truck was mechanically examined by Syed Karimuddin (P. W. 2). The post-mortem of the body of the deceased was got conducted by Dr. D.C. Jain of Medical College, Raipur. The post-mortem report (Ex. P-3), was prepared by the doctor. Panchnama (Ex. P-6) of the dead-body was prepared by the Investigating Officer and after completion of the investigation, charge sheet was filed against the accused/applicant. The particulars of the offence were explained to the accused, he denied the charge and the prosecution in order to prove the offence against the accused examined in all seven witnesses. The statement of the accused was recorded under Section 313 of the Criminal Procedure Code. The perusal of the statement of the accused revealed that he simply denied the statements of the prosecution witnesses and stated they are telling lie. Even about the eye-wit-ness/Jamuna Prasad, he has stated that he was not in the truck. However, in reply to the first question, he stated that he was driving the truck and whether the witnesses know him he does not know. In the last reply, he said, "he has not committed any mistake, what further more he can say about it". After hearing the Counsel for the accused and the prosecutor, the learned Trial Court convicted the accused/applicant as mentioned above and that said judgment was affirmed by the First Appellate Court.
3. I have heard the learned Counsel for the accused/applicant and the learned Deputy Govt. Advocate for the State/non-applicant.
4. The learned Counsel for the accused/applicant argued that it is admitted fact that while alighting from the truck the full pant of deceased-Roshanlal Gupta was entangled in the hook, the accused was not aware of it and that is how the deceased was got crushed under the rear wheel of the truck and that was the contributory negligence on the part of the deceased. She further argued that the prosecution has not been able to prove the rash and negligent act of the accused/applicant. Counsel further argued that in order to hold guilty the accused for rash and negligent act, the death of the deceased must be the direct and proximate cause of the act of the accused and the prosecution has not been able to prove this fact, therefore the accused/applicant is entitled for acquittal. In support of her arguments, she relied upon the judgments in the case of Ambalal D. Bhatt v. The State of Gujarat, reported in AIR 1972 Supreme Court 1150 (V 59 C 202); Kurban Hussein Mohammedalli Rangawalla v. State of Maharashtra, reported in AIR 1965 Supreme Court 1616 (V 52 C 275); Suleman Rahiman Mulani and another v. State of Maharashtra, reported in AIR 1968 Supreme Court 829 (V 55 C 168); SyadAkbar v. State of Kamataka, reported in AIR 1979 Supreme Court 1848; Sudalaimuthu and etc. v. State, reported in 1997 Cr.LJ 1038 and Mohammed Aynuddin v. State of A.P., reported in 2001 (1) MPWN 66.
5. On the other hand, the learned Deputy Govt. Advocate supported the judgment of the Trial Court and the Appellate Court.
6. In the case of Ambalal D. Bhatt (supra), the Hon'ble Apex Court while dealing with a case regarding the offence under Section 304A of the IPC held that it must be established 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. The act causing the deaths "must be the causa causans; it is not enough that it may have been the causa sine qua non". In this case, the accused was charged with offence under Section 304A of the IPC being a Chemist In-charge of the Injection Department of Sanitax Chemical Industries Ltd., Baroda and he was held responsible for rashly and negligently manufacturing a solution of glucose in normal saline which contained more than the permitted quantity of lead nitrate as a result of which 13 persons, to whom it was administered, died. The Court observed that it is to be seen that whether the appellant's act in 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 appellant's 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 negligence. On law and facts and the Court after going through the evidence reached to the conclusion that the act of the accused was not the direct and proximate and efficient cause of the death.
7. Same principle has been laid down by the Hon'ble Supreme Court in the case of Kurban Hussein Mohammedalli Rangawalla (supra), in which the Court held that the death must be the direct and proximate result of the rash and negligent act. In that case the appellant along with three partners was the owner of the factory which was manufacturing paints and varnish, the appellant was the Manager and Working Partner of factory, where the death took place in an accident on account of the negligence of one employee Hatim Tasduq, which was direct and proximate cause of the fire breaking out with a consequence that seven persons were burnt to death. Further, in that case, the conditions of licence were breached and the manager and working partner was not held responsible for the act by which the workers died and the Court held that it is clearly the negligence of Hatim Tasduq which the direct proximate cause of the fire breaking out though the fact that the burners were kept in the same room in which the turpentine and varnish were stored was indirectly responsible for the fire which broke out. Even so in order that person maybe guilty under Section 304A of the IPC, the rash or negligent act should be the direct or proximate cause of the death. In the present case it was Hatim's act which was the direct and proximate cause of the fire breaking out with the consequence that seven persons were burnt to death; the act of the appellant in allowing turpentine and varnish being stored at a short distance was only an indirect factor in the breaking out of fire.
8. Similarly, in the case of Suleman Rahiman Mulani and another (supra) the Hon'ble Supreme Court held that simply because the accused was driving for about six months to a year and that he had driven jeep to various place a day previous to occurrence - accused having only a learner's licence - Held on basis of facts found accused could not have been held guilty under Section 304A of the IPC. There was no presumption in law that a person who possessed only a learner's licence or possessed no licence at all did not know driving and that the prosecution was not able to establish that the rash and negligent act of the accused was the proximate cause of the death.
9. In the case of Syad Akbar (supra), the Hon'ble Apex Court held that accident due to the error of judgment and in spite of driver adopting best course according to his knowledge and belief-Principle of res ipsa loquitur not attracted. The Hon'ble Court further held that the maxim res ipsa loquitur does not require the raising of any presumption of law which must shift the onus on the defendant. It only, when applied appropriately, allows the drawing of a permissive inference of fact, as distinguished from a mandatory presumption properly so-called, having regard to the totality of the circumstances and probabilities of the case. Res ipsa is only a means of estimating logical probability from the circumstances of the accident.
10. As far as the case of Sudalaimuthu and etc. (supra) is concerned, on facts this case does not apply to the present case. In that case, the Court held that there must be direct nexus between death of person and rash or negligent act of accused. Deceased coming under wheels of bus while alighting from bus. Evidence that deceased alighted from bus despite blowing of whistle by conductor and starting of bus. Clear evidence that bus was stopped immediately at spot itself. Hence bus could not be said to have been started with speed and in rash manner.
11. In the case of Mohammed Aynuddin (supra) the Hon'ble Apex Court held that in order to prove the culpable negligence on the part of the driver and to fasten the liability with the driver for negligent driving in such a situation there should be the evidence that he moved the bus suddenly before the passenger could get into the vehicle or that the driver moved the vehicle even before getting any signal from the rear side. The Court further held that a driver who moves the bus forward can be expected to keep his eyes ahead and possibly on the sides also. A driver can take the reverse motion when that driver assures himself that the vehicle can safely be taken backward. The principle of res ipsa loquitur has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of the negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer. 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 of a vehicle to adopt such reasonable and proper care and precaution.
12. Now, coming to the facts of the present case and in the light of principles laid down by the Hon'ble Apex Court in the above judgments, we have to see whether the prosecution has been able to prove the offence under Section 304A of the IPC against the accused/applicant for causing the death of Roshanlal Gupta by driving the truck rashly and negligently and whether the act of the accused was rash and negligent and direct, proximate and efficient cause of the death and whether the accused failed to exercise his duty with reasonable and proper care and precaution. As mentioned above, it is admitted that deceased-Roshanlal Gupta was crushed under the rear wheel of the truck while alighting from the truck as his full pant was entangled in the side hook of the truck. The eye-witness who has supported the prosecution case is Jamuna Prasad (P. W. 1), who was working whole day with the deceased at Bhesmudi and who also travelled with the deceased in the accused/applicant's truck. He has stated in his statement as P.W. 1 that when the truck stopped at Kharora, he got down from the truck, thereafter, when deceased-Roshanlal Gupta was alighting from the truck, his full pant was entangled in an iron hook on the side of the truck, at that point the truck moved and the deceased came under the truck and Roshanlal Gupta died on the spot. On this aspect, this witness has not been fully cross-examined by the defence Counsel. Simply, he was asked whether the police people have falsely implicated the accused/applicant which he denied. On question, he said that he did not know whether the accused moved the truck negligently. The doctor who conducted the post-mortem examination on the dead-body of the deceased, Dr. D.C. Jain in his statement has said that the cause of the death of the deceased was injury to the head and heart. In his statement he has said that the head of the deceased was crushed, ribs were fractured, brain material was coming out, the pelvis bone of left side was fractured, pelvis part was also crushed and became flat. The doctor further stated that the deceased died due to the crush injuries. If we look at the statement of the accused, he has not offered any explanation, whereas, it is admitted fact that the deceased was travelling in the truck of accused and he was crushed under the rear wheel of the truck which was being driven by the accused/applicant. He has simply denied the statements of the witnesses.
13. The Trial Court and the Appellate Court has observed that the accused without ensuring that all the passengers have alighted from his truck moved the truck negligently which caused the death of the deceased. On these facts, if we look into the principles laid down by the Hon'ble Apex court, it is admitted position that the trucks are meant for carrying the goods not for passengers. The accused/applicant, contrary to this, was carrying the passengers, therefore, he should have more alert and careful about carrying the passengers and about their safety. He should have ensured before moving the truck that all the passengers have alighted safely from the truck. He did not take proper care and caution before moving the truck. Normally, all the vehicles carrying the passengers have the conductor so that he can guide the driver in stopping and starting the vehicle by giving indication through whistle, In this case, the accused/applicant has not offered any explanation as to whether he moved the vehicle only after receiving indication from someone. He has simply denied the prosecution story. Eye-witness-Jamuna Prasad has specifically stated that when deccased-Roshanlal Gupta was alighting from the vehicle his full pant was entangled in the hook and at that point, the accused moved the truck. This shows that culpable negligence of the accused that he moved the truck without ensuring that all the passengers have alighted from the truck.
14. Now, coming to the argument of the learned Counsel for the accused/applicant that in this case, there was a contributory negligence on the part of the deceased because the pant of the deceased was entangled in the hook of the truck and on that account the deceased came under the rear wheel of the truck and accident took place, the argument of the learned Counsel is without any merit. As mentioned above, the accused, particularly when he was carrying the passengers in a truck, which he ought not to have, ought to have ensured before moving the truck that all the passengers have alighted safely which he did not. As observed by the Hon'ble Apex Court in the case of Mohammed Aynuddin (supra) that criminal negligence is the failure to exercise duly 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 of a vehicle to adopt all such reasonable and proper care and precaution which the accused in the present case did not. Therefore in the present case the question of contributory negligence on the part of the deceased does not arise on the facts and circumstances of the case. Similarly, in this case, the Court held that to fasten the liability with the driver for negligent driving in such a situation there should be the evidence that he moved the bus suddenly before the passenger could get into the vehicle or that the driver moved the vehicle even before getting any signal from the rear side. In the present case, Jamuna Prasad (P. W. 1), fellow passenger of the deceased had specifically stated that the pant of the deceased was entangled in the hook of the truck and the accused/applicant suddenly, at that point of time, moved the truck and the deceased came under the real wheel of the truck, as such the accused was not vigilant, careful and he did not take proper care and precaution before moving the truck, therefore, he was rash and negligent in moving the truck, which was the direct and proximate cause of the accident and death of the deceased. Now, coming to the principle of res ipsa loquitur, as mentioned above, Roshanlal Gupta's pant was entangled in the hood of the truck and the truck moved at the point of time without giving any indication and the accused moved the truck without ensuring that all the passengers have alighted safely. As mentioned above, it was more onerous duty on the accused that while he was carrying the passenger in a truck he should have adopted more care, precautions, and safety measures particularly at the point of time of alighting of the passengers from the truck which he did not. Therefore, the circumstances itself speak that the accused was culpably rash and negligent in driving the truck.
15. As per the principle laid down in the case of Syad Akbar (supra) that in the first instance the prosecution has discharged its duty that how the accident took place, how the accused was negligent and the prosecution has discharged its burden, now it was on the accused in order to exculpate himself must rebut the presumption of negligence against him by offering explanation that how he was not rash and negligent on his part while moving the truck which he did not. On the contrary, he has simply denied the statements of the prosecution witnesses.
16. In view of what have been discussed above, I am of the opinion that the finding of the Court below to the effect that the accused/applicant was culpably rash and negligent in moving the truck which caused the death of dcceased-Roshanlal Gupta is correct, not perverse and based on legal and convincing evidence and the death of the deceased was direct and proximate cause of the act of the accused/applicant and there is no ground exists before this Court to interfere with the concurrent finding of the Court below.
17. Learned Counsel for the applicant argued that the accused/applicant may be given the benefit of the Probation of Offenders Act and relied upon the order in the case of Aitha ChanderRao v. State of Andhra Pradesh, reported in 1981 (Supp) SCC 17. In that case, the Hon'ble Supreme Court observed that on account of the contributory negligence of the deceased, benefit of probation could be extended. It would be in the fitness of the things that in the present case, as mentioned above, there was no contributory negligence on the part of the deceased.
18. Looking to the facts and circumstances of the case, the manner in which the death of the deceased was caused, the fact that the accused was carrying the passengers in flagrant violation of rules in an open truck which was not meant for carrying passengers and in order to curb such practices, I am of the opinion that it is not a fit case in which the benefit of Probation of Offenders Act should be extended to the accused/applicant. In the result, the criminal revision is dismissed. The bail bonds of the accused/appellant are cancelled and he is directed to surrender himself and serve out the remaining sentence.