Himachal Pradesh High Court
Sania Dhanwal vs Rt on 28 June, 2016
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Criminal Revision No. 74 of 2009
Judgment reserved on: 11.05.2016
Date of decision : 28.06.2016
___
of
Sania Dhanwal ...Appellant
Versus
rt
State of Himachal Pradesh ...Respondent
_______
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur.
Whether approved for reporting?1 Yes.
For the appellant : Mr. B. R. Verma, Advocate.
For the respondent : Mr. Pankaj Negi, Deputy
Advocate General.
_______
Vivek Singh Thakur,J.
1. Petitioner is aggrieved by judgment passed in Criminal Appeal No. 47-S/10 of 2007, dated 30.05.2009 by learned Additional District Judge(Fast Track), Shimla Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 2 confirming judgment passed by learned Chief Judicial .
magistrate in Cr. Case No.44/2 of 2006/03, dated 17.11.2007, convicting and sentencing petitioner to imprisonment of six months each for offences punishable under Sections 287 and 337 IPC and further under Section of 304-A of Indian Penal Code with imprisonment of one year with a fine of Rs.2500/- and in default of payment of fine to undergo further rt simple imprisonment for a period of one month.
2. Driver of the vehicle was prosecuted for rash and negligent conduct with respect to machinery endangering human life and causing injury and death of the children.
Notice of accusation under Sections 287, 337 and 304-A IPC was put to petitioner.
3. After facing trial, aggrieved by his conviction and sentence by trial court, petitioner had filed an appeal in Sessions Court which has been dismissed by learned Additional Sessions Judge, Fast Track Court, Shimla. Hence present petition has been preferred.
::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 34. On the fateful day, petitioner had parked truck .
on the left side of road facing ascending gradient near G.S. Trading Company at Bhatakuffar near Churrat Nallah bifurcation in Shimla. The petitioner had alighted from truck and was talking with owner of vehicle at a short distance. In of the meanwhile, children including son of petitioner playing on the spot had entered driver's cabin of the truck.
rt Suddenly, children started crying on moving of truck in backward direction. Within few seconds truck had fallen into 500 deep gorge and children were seriously injured. Injured children were taken to Hospital however two of them they succumbed to injury on the way to Hospital. Son of petitioner was also one of surviving injured children.
5. It is the case of the prosecution that petitioner has omitted to take due care and caution to lock the door of truck and to apply gutka-stopper to the truck enabling entry and meddling with gear box, clutch, steering etc. by children resulting falling of truck into deep gorge causing serious injury to and death of children.
::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 46. Shri B.R. Verma, learned counsel for petitioner .
has pleaded that failure to lock the door of truck is simple error and at the most may be termed as negligence for the purpose of tort but not a gross negligence rendering petitioner criminally liable. For criminal liability gross of negligence on the part of accused is a necessary ingredient.
It has been further pleaded that accident should be rt immediate and proximate to negligence and parking truck without locking the door is not an immediate and proximate cause of accident and particularly for injury and homicide of children. For convicting petitioner injury and death should be direct consequences of the act on his part. It has been further pleaded that no father will put his son in danger, therefore, omission and commission on the part of petitioner in present case are not rash and negligent inviting criminal liability but are of simple error and injury to and death of children are not direct consequence of that error.
7. Shri Pankaj Negi, learned Deputy Advocate General has argued that there was no cleaner in the truck, ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 5 door was not locked and truck was parked without applying .
gutka-stopper to tyres of truck. There is nothing on record that door was defective and even if it was defective, it was to be brought in the notice of owner of the vehicle by driver of the truck. The omission and commission on the part of of petitioner proved on record are sufficient to convict and sentence the petitioner under Sections 287, 337 and 304-A IPC.
rt
8. Learned Deputy Advocate General in support of case has also relied upon in case reported in case State of Punjab Versus Saurabh Bakshi (2015)(V) SCC 182 for justifying conviction of petitioner and sentence imposed upon him.
9. The petitioner has relied upon judgment passed in case Ambalal D. Bhatt. Versus The State of Gujarat reported in 1972 CRI L.J. 727, (AIR 1972 Supreme Court 1150), in which it has been held as under:-
"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 ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 6 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 of have been an answer and we would have then examined to what extent additional evidence of rt his acquittal would have to be allowed, but since that is not the criteria, we have to determine 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 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 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 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 ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 7 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 of not be enough to make the accused responsible for the fire which broke out. The cause of the fire rt 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 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 that deaths and injuries caused by the contravention of a prohibition in respect of the substances which are highly dangerous as in the case of explosives in a cracker factory which are considered to be of a highly hazardous and ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 8 dangerous nature having sensitive composition where even friction or percussion could cause an .
explosion, that contravention would be the causa causans".
10. The petitioner has also put on reliance on judgment of this Court reported in case Udham Singh of versus the State of Himachal Pradesh, reported in 1980 Sim. L.C. 246 to the following effects:-
rt "5. Now it is well settled that merely because a person contravenes some rules and regulations he does not make himself liable for rashness or negligence. To make a person liable for criminal negligence or rashness, it is necessary to show a nexus between the wrongful act of an accused and the injuries received by another. The injuries suffered must be the immediate result of the wrongful act and not a remote consequence".
11. The petitioner has also relied upon judgment in case State of Punjab Versus Amrit Lal Jain, reported in 2006 (I) J.R. (Criminal) 279(Punjab and Haryana High Court) and in case reported in 1994 Cr.L.J. 363(Kerla High Court) in which by following Ambalal's Judgment of Apex Court the drivers were acquitted under ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 9 Section 304-A IPC as death was not found to be direct .
result of the negligent act of the person concerned.
12. Referring judgment of Hon'ble Supreme Court passed in case Kurban Hussein Mohammadalli Ranawalla Versus State of Maharashtra AIR 1965 SC of 1616 it has been argued on behalf of petitioner that to impose criminal liability under Section 304-A of IPC it is rt necessary that act should have been the direct result of omission and negligent act of the accused and that act must be proximate and efficient cause of negligence of accused without interference of another's omission and commission.
It must have been causa causans and it is not enough that it may have been the causa sine quo non.
13. In a recent judgment reported in case Sushil Ansal v. State Through Central Bureau of Investigation (2014) 6 Supreme Court Cases 173, the Apex Court has explained Doctrine of causa causans and had acquitted persons incharge of maintenance of transformers despite their omission in duty to ensure to inspect the building and ensure that it was safe place for ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 10 public. They were convicted under Sections 337 and 338 .
read with Section 34 IPC but were acquitted under Section 304-A IPC. In this judgment the Apex Court has explained causa causan as under:-
(V) Doctrine of Causa Causans:
of "80. We may now advert to the second and an equally, if not, more important dimension of the rt offence punishable under Section 304-A IPC, viz.
that the act of the accused must be the proximate, immediate or efficient cause of the death of the victim without the intervention of any other person's negligence. This aspect of the legal requirement is also settled by a long line of decisions of Courts in this country. We may at the outset refer to a Division Bench decision of the High Court of Bombay in Emperor v. Omkar Rampratap (1902) 4 Bom LR 679 where Sir Lawrence Jenkins speaking for the Court summed up the legal position in the following words:
" ............... to impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the act should have been the direct result of a rash and negligent act of the accused and that ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 11 act must be proximate and efficient cause without the intervention of another negligence.
.
It must have been the causa causans; it is not enough that it may have been the causa sine qua non."
The above statement of law was accepted of by this Court in Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra AIR 1965 SC 1616. We shall refer to the facts of this case a rt little later especially because Mr. Jethmalani, learned Counsel for the appellant-Sushil Ansal, placed heavy reliance upon the view this Court has taken in the fact situation of that case".
"81. Suffice it to say that this Court has in Kurban Hussein's case (supra) accepted in unequivocal terms the correctness of the proposition that criminal liability under Section 304-A of the IPC shall arise only if the prosecution proves that the death of the victim was the result of a rash or negligent act of the accused and that such act was the proximate and efficient cause without the intervention of another person's negligence. A subsequent decision of this Court in Suleman Rahiman Mulani v. State of Maharashtra AIR 1968 SC 829 ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 12 has once again approved the view taken in Omkar Rampratap's case (supra) that the act of .
the accused must be proved to be the causa causans and not simply a causa sine qua non for the death of the victim in a case under Section 304-A of the IPC.
of To the same effect are the decisions of this Court in Rustom Sherior Irani v. State of Maharashtra 1969 ACJ 70; Balchandra @ Bapu rt and Anr. v. State of Maharashtra AIR 1968 SC 1319; Kishan Chand v. State of Haryana (1970) 3 SCC 904; S.N Hussain v. State of A.P. (1972) 3 SCC 18; Ambalal D. Bhatt v. State of Gujarat (1972) 3 SCC 525 and Jacob Mathew's case".
"82. To sum up: for an offence under Section 304-A to be proved it is not only necessary to establish that the accused was either rash or grossly negligent but also that such rashness or gross negligence was the causa causans that resulted in the death of the victim".
"83. As to what is meant by causa causans we may gainfully refer to Black's Law Dictionary (Fifth Edition) which defines that expression as under:::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 13
"The immediate cause; the last link in the chain of causation."
.
The Advance Law Lexicon edited by Justice Chandrachud, former Chief Justice of India defines Causa Causans as follows:
of "Causa causans: The immediate cause as opposed to a remote cause; the 'last link in the chain of causation'; the real effective rt cause of damage".
"84. The expression "proximate cause" is defined in the 5th edition of Black's Law Dictionary as under:-
Proximate cause: "That which in a natural and continuous sequence unbroken by any efficient, intervening cause, produces injury and without which the result would not have occurred. Wisniewski vs. Great Atlantic & Pac. Tea Company 226 Pa. Super 574, 323 A2d, 744,
748. That which is nearest in the order of responsible causation. That which stands next in causation to the effect, not necessarily in time or space but in causal relation. The proximate cause of an injury is the primary or moving cause, or that which in a natural and continuous ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 14 sequence, unbroken by any efficient intervening cause, produces the injury and without which the .
accident could not have happened, if the injury be one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act. An injury or damage is proximately caused by an act, or a failure to act, whenever it of appears from the evidence in the case, that the act or omission played a substantial part in rt bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission."
14. In the present case, the prosecution has examined 8 witnesses to prove the guilt of petitioner and thereafter statement of petitioner-accused under Section 313 Cr.P.C. was recorded. No evidence in defence has been led. Accident causing injury to death of children is not disputed. Question for determination is that whether petitioner has conducted the machinery rashly and negligently endangering the human life or to be likely to cause hurt or injury to any other person or knowingly or negligently omitted to take such order with machinery in his ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 15 possession as is sufficient to guard against any probable .
danger to human life from such machinery and such rash and negligent act has caused grievous injury to and death of children.
15. For determining question in issue in present case of statements of PW-1 Gurcharan Singh owner of the vehicle and PW-2 Tej Singh Clerk and PW-4 Surender (12 years old) son of rt the petitioner and PW-8 Dev Krishan Investigating Officer are relevant. PW-1 has resiled from his previous statement recorded under Section 161 Cr.P.C and was declared hostile witnesses, but his statement can be relied upon on corroboration by cogent and reliable evidence on record. He has admitted that petitioner had parked truck without locking the same but has explained that in his opinion parking of vehicle without locking is not a negligent act. He has stated that on the spot children may have removed gutka and meddled with steering, gear and clutches etc., which may have caused accident. PW-2 has stated that at the time of accident petitioner was standing outside truck and was talking to someone. He has further ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 16 stated that the petitioner had parked the vehicle by putting .
stone. He has shown his ignorance regarding meddling by children. PW-4 son of petitioner has also supported the prosecution case but he has stated that his father was standing at a distance of 20-30 feet of the parked vehicle of and was talking with persons working there and children had entered truck without knowledge of petitioner and rt small children were playing outside the truck and one child meddled with gear and clutches of the truck. He has shown ignorance about putting stone by his father as Gutka/stopper with rear tyre. He has stated that within five minutes of parking the truck they had entered the truck and within 1-2 minutes truck had moved backwards. PW-8 has admitted that it transpired during investigation that children of labourers were also playing outside the truck at the time of accident and some of them entered and meddled with truck. He has admitted that accident has occurred on account of meddling with truck by children. It has also come in evidence that the petitioner was standing near the vehicle and talking with owner of the vehicle and has not ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 17 abandoned the vehicle without locking it. In the meanwhile, .
children had entered in the vehicle without knowledge of the petitioner or anybody else and the petitioner noticed the act of children only after hearing cries of children.
16. On the above discussion, it is difficult to hold of that death of children was a direct result of omission or commission on the part of the petitioner. As per ratio laid rt down by the Apex Court, death must be direct result of omission or commission on the part of petitioner and not on account of interference of act of some one else. The omission and commission of petitioner in present case are not sufficient to cause death of children. It is meddling with gear and clutches by the children that too without permission or knowledge of petitioner which has caused accident resulting death of children. The learned Additional Sessions Judge has relied upon answer to question No. 7 put to petitioner under Section 313 Cr.P.C. to hold him guilty. Though, the learned Additional Sessions Judge has referred judgment passed by the Hon'ble Supreme Court, reported in 2003, Criminal Law Journal 11 titled as Mohan ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 18 .
Singh Versus Prem Singh and another but has not applied the same as per ratio laid down by the Apex Court in the said judgment. Statement under Section 313 Cr.P.C. of the petitioner can certainly be taken in aid of to lend credence of to the evidence led by prosecution. Only a part of such statement under Section 313 Cr.P.C. cannot be made sole rt basis of his conviction. There is no evidence on record pin pointing of omission and commission of gross negligence on the part of petitioner causing injury to and death of children. Portion of statement under Section 313 Cr.P.C.
cannot be used against petitioner to convict him under Section 304-A IPC, particularly, when in answer to question No. 9, petitioner had denied his failure to take sufficient guard against the probable danger of vehicle being handled by other person causing injury to and death of children.
17. An error of judgment, which comes to light only on post accident reflection but could not be foreseen by the accused in that fragmented moment before the accident, is not a sure index of negligence. The accident in the present ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 19 case has happened due to an error and not on account of .
negligence on the part of petitioner. Parking and leaving vehicle without locking is not the direct cause of accident.
18. In normal circumstances, parking a truck without Gutka/stopper and without locking may not attract criminal of liability. However, in present case, it has come in evidence that there was steep gradient and children were playing rt other spot. In these facts and circumstances, such omission on the part of driver amounts to negligence as the petitioner has failed to take due care and caution as was sufficient to guard against any probable danger to human life from the vehicle.
19. From evidence on record, it can be safely inferred that learned Courts below have failed to consider ratio laid down by the Apex Court before holding petitioner guilty for an offence under Section 337 and 304-A IPC.
However, there is sufficient evidence on record to hold petitioner guilty under Section 287 IPC in given facts and circumstances of present case.
::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 2020. In view of the foregoing discussion, the .
judgment passed in Criminal Appeal No. 47-S/10 of 2007 dated 30.05.2009 by learned Additional District Judge(Fast Track), Shimla confirming judgment passed by learned Chief Judicial magistrate in Cr. Case No. 44/2 of 2006/03 of dated 17.11.2007 convicting and sentencing the petitioner under Sections 304-A and 337 IPC is set aside and rt petitioner is acquitted from the charges under Section 337 and 304-A, however, conviction under Section 287 IPC is upheld.
21. It has been pleaded by learned counsel for the petitioner that he is sole bread-earner of family and accident had taken place more than a decade ago i.e. in the year 2003. Petitioner has been facing criminal proceedings since the year 2003 and was convicted in the year 2007 and since then he is under fear to undergo sentence of one year imposed upon him. At the time of accident, age of petitioner was 30 years and responsibility towards family has also increased by passage of time. He has his family to support and is not a previous convict. Therefore, benefit of ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP 21 probation be given to him. Keeping in view the age and .
also fact that the petitioner is not previous convict and having regard to the circumstances of case, character of petitioner and nature of offence, petitioner is accordingly admonished by giving him benefit of Section 3 of Probation of of Offenders Act, 1958. The appeal is partly allowed and disposed. Records of the Court below be sent back immediately.
rt (Vivek Singh Thakur), Judge.
June 28, 2016 (brb) ::: Downloaded on - 15/04/2017 20:42:28 :::HCHP