Himachal Pradesh High Court
____________________________________________________________ vs State Of Himachal Pradesh on 28 June, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr. Revision No. 69 of 2008.
Judgment reserved on: 22.6.2016.
Date of decision : June 28th , 2016.
____________________________________________________________ Bir Singh ...Petitioner.
of
Versus
State of Himachal Pradesh ...Respondent.
Coram rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes For the Petitioner : Mr. Onkar Jairath, Advocate.
For the Respondent : Mr. J.S. Guleria, Assistant Advocate General.
Tarlok Singh Chauhan, Judge This revision petition under Sections 397 and 401 of the Code of Criminal Procedure is directed against the judgment dated 1.4.2008 passed by learned Additional Sessions Judge, Fast Track Court, Una, District Una, H.P. in Criminal Appeal No. 11/03, RBT 28/2004 whereby the judgment passed by the learned Additional Chief Judicial Magistrate, Amb, District Una, H.P. in Case No. 28/1 of 2002 dated 18.10.2003 has been partly modified and the petitioner has been sentenced to simple imprisonment for three months and six months for the offences punishable under Sections 279 and 304-A IPC, respectively, while the sentence of fine for both the offences was ordered to be maintained.
2. Briefly stated, the case of the prosecution is that on ____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 15/04/2017 20:41:40 :::HCHP 2 22.11.2001 at about 9.15 a.m. the complainant Kumari Anjana and her .
cousin Shashi Kanta were standing by the side of the road at Pucca Paroh as they were waiting for a bus to go to Amb, in the meanwhile a private vehicle bearing registration No.CH-03A-3959 being driven by the petitioner came from the side of the Una in very high speed and hit of Kumari Shashi Kanta due to which she sustained injuries and was brought to hospital Amb for treatment in the same vehicle which hit her.
rt As per the complainant the accident took place because of rash and negligent driving on the part of the petitioner and a case under Sections 279, 337 IPC was registered. After medical examination and first aid at P.H.C., Amb the injured was referred to PGI, Chandigarh and on 26.11.2001 she succumbed to her injuries, due to which the offence punishable under Section 304-A IPC was also added against the petitioner. After completion of investigation the challan was filed against the petitioner under Sections 279, 337 and 304-A IPC.
3. Notice of accusation was put to the petitioner by the trial Court for the offence punishable under Sections 279, 337 and 304-A IPC to which he pleaded not guilty. The prosecution examined five witnesses in support of its case and taken various documents on record. The statement of petitioner under Section 313 Cr.P.C. was recorded to which he denied the prosecution story. After the trial, the petitioner was convicted by the learned trial Court for offence punishable under Sections 279 and 304-A IPC and he was sentenced to under rigorous imprisonment for six months and to pay fine of ` 1000/- for offence punishable under Section 279 IPC and in default of payment of fine, he was further to undergo rigorous imprisonment for ::: Downloaded on - 15/04/2017 20:41:40 :::HCHP 3 one month. The petitioner was sentenced to undergo rigorous .
imprisonment for two years and to pay fine of `2000/- for offence punishable under Section 304-A IPC and in default of payment of fine, to undergo rigorous imprisonment for six months.
4. Aggrieved by the judgment passed by the learned trial of Court, the petitioner filed an appeal before the learned Additional Sessions Judge, Fast Track Court, Una, who vide judgment dated rt 1.4.2008 upheld the judgment of the learned trial Court and modified the sentence part and accordingly sentenced the petitioner to undergo S.I. for three months and six months for the offences punishable under Sections 279 and 304-A IPC, respectively, while the sentence of fine for both the offences was maintained.
5. Aggrieved by the judgments of conviction and sentence passed by both the learned Courts below, the petitioner filed the instant revision petition before this Court.
6. It is vehemently argued by Mr. Onkar Jairath, learned counsel for the petitioner that both the learned Courts below have failed to take into consideration the fact that the testimony of the prosecution witnesses lack coherence and are full of contradictions, therefore are not reliable. It is also argued that the witnesses examined in this case, who supported the prosecution, are none other than the real sister and maternal uncle of the complainant and, therefore, no credence should be given to their statements and the same otherwise ought to have been discarded. It is also pointed out that the case against the petitioner has not been proved beyond reasonable doubt.
::: Downloaded on - 15/04/2017 20:41:40 :::HCHP 4I have heard learned counsel for the parties and gone .
through the records of the case carefully.
7. It would be noticed that the specific defence of the petitioner is that at the relevant time he was driving the vehicle at a slow speed and the deceased suddenly came on the road after of crossing the bus which was standing there which resulted in the accident. The statements of PW-1 and PW-3 are very relevant as they rt are material witnesses who were present at the spot with deceased, but their statements have been discussed in a very slipshod and cursory manner by both the learned Courts below.
8. PW-1 in her statement has stated that on 22.11.2001 at about 9.15 a.m. she and her sister Shashi Kanta were standing on the road side at Pucca Poroh when Tata Sumo bearing registration No. CH-03A-3959 came at a very high speed from the side of Una towards Amb and hit her sister Shashi Kanta, who eventually succumbed to her injuries. The vehicle was being driven by the accused, who was stated to be present in the Court and regarding this accident her statement Ex.PA was recorded by the police which was duly signed by her. She deposed that the accident took place because of the fault of the petitioner. This part of the statement is duly supported by PW-3.
However, in case the cross-examination of PW-1 is seen, then the spot position which uptil now is hazy becomes very clear. In cross-
examination, PW-1 has clearly stated that there is a rain shelter at the spot and two eucalyptus trees are also standing there. She admits that at the relevant time there was a bus at the spot which was stationary and was to proceed to Amb. She denied that deceased Shashi Kanta ::: Downloaded on - 15/04/2017 20:41:40 :::HCHP 5 was trying to cross the road in front of the bus but stated that the .
petitioner was trying to overtake the bus which eventually caused the accident. She further stated that Tata Sumo was being driven at high speed.
9. PW-3 in his cross-examination has contradicted PW-1 by of stating that there was no bus standing at the bus stop. One fact which emerges from the statement of PW-1 and has not at all been rt appreciated by both the learned Courts below in its right perspective is that there was a bus standing at the bus stop and proceeding towards Amb and it was this stationary bus which was being overtaken by the petitioner when the accident took place. In such circumstances, the statement of PW-1 has to be appreciated by taking into consideration the spot map Ex.PW-9/A which unfortunately has not at all been considered by either of the Courts below. In the spot map, it has been clearly shown that the accident has taken place about 22 feet from the extreme left of the road which suggests that the petitioner was overtaking the bus when the accident took place.
10. It is not even the case of the prosecution particularly PW-1 and PW-3 that deceased Shashi Kanta was clearly visible to the petitioner at the time of accident which only suggests that deceased came from the front of the bus and abruptly appeared on the road when the petitioner was overtaking the bus.
11. In Tukaram Sitaram Gore vs. State AIR 1971 Bombay 164, the learned Single Judge of the Bombay High Court has held that high speed of a motor vehicle does not by itself prove rashness or negligence of driver. It was further held that there can be no ::: Downloaded on - 15/04/2017 20:41:40 :::HCHP 6 presumption of negligence from the mere fact that a man is knocked .
down and killed by a motorist. Relevant observations read as under:-
"3. As far as the first point is concerned, the Supreme Court has, in its unreported decision, D/-21-3-1968 in (1968) Criminal Appeal No. 154 of 1965 (SC), held that the use of the expression "high speed" (that being the expression used by a of witness in the case before the Supreme Court) was not enough to prove rashness or negligence, unless evidence was elucidated from the witness who used that expression as to rt what his notion of speed was. As far as witness Kasturi Satayya is concerned, no evidence whatsoever has been elicited from him to show what his notion of "fast speed" was. As far as witness Yasminkhan is concerned, an attempt has been made to elicit from him, in the course of cross-
examination, as to what his notion of "fast speed" was, and he stated that the lorry was, in his opinion, proceeding at a speed of 35 miles per hour when the boy was knocked down. The speed of 35 miles per hour is, no doubt, slightly in excess of the speed-limit in the city (except along Marine Drive), but it can by no means be said to be a speed which is so excessive as to amount, per se, to rashness or negligence. The evidence that the accused was driving the motor lorry at fast speed at the time of the incident is, therefore, of no avail to the prosecution in the present case.
6. There is no other fact emerging from the prosecution evidence from which such an inference can be drawn. Hearing criminal appeals during the last few months, I have come across several cases of prosecutions under Section 304-A in which Magistrates appear to have presumed negligence, once a man is knocked down and killed by a motorist. There can be no such presumption. Not only must there be evidence of rashness or negligence acceptable to the Court but, as laid down by the Supreme Court in the case of Suleman Rahiman v. State of Maharashtra, 70 Bom LR 536 at p.538= (AIR 1968 SC 829 at p.831) there must be proof that the rash or negligent act of the accused was the proximate cause of the death and ::: Downloaded on - 15/04/2017 20:41:40 :::HCHP 7 there must be a direct nexus between the death of a person .
and the rash or negligent act of the accused. In running-down cases the death of the pedestrian may very well be purely accidental, or may be due to his own negligence. To presume that because a pedestrian has been knocked down and has died, the driver of the motor vehicle that knocked him down of must be guilty of rashness or negligence overlooks these two possibilities. It is necessary for subordinate Courts to bear in mind that the prosecution must produce evidence to establish rash or negligent driving of the motor vehicle by the accused. I rt am told that, at one time, it was the practice of the Chief Presidency Magistrate of Bombay to allot running-down cases only to those Magistrates who knew motor-driving. The traffic problem in the city has now become very acute and I wonder whether it would not be advisable for the Chief Presidency Magistrate to revert to that practice, if it is possible to do so."
12. In Mahadeo Hari Lokre vs. The State of Maharashtra AIR 1972 SC 221, it was held by the Hon'ble Supreme Court that if a pedestrian suddenly crosses a road without taking note of the approaching bus, there is every possibility of his dashing against the bus without the driver becoming aware of it. In such circumstances, the bus driver cannot save accident, however, slowly he may be driving and, therefore, he cannot be held to be negligent and punished under Section 304-A of IPC. Relevant observations read as under:-
"4. It must be said that there is really no good evidence on the side of the prosecution to show how exactly the accident took place. All that P.W. 2 Vijay Kumar, the friend of the deceased, was able to say was that the deceased left him at point B. Since the deceased came under the left front wheel, it can be only inferred that he must have crossed the road to the Western Side. That seems to be borne out by the F.I.R. of P.W.l Dayanand who says that when he was standing near point C he saw Ravikant going by the C.P. Tank Road towards ::: Downloaded on - 15/04/2017 20:41:40 :::HCHP 8 tin batti, that is, towards the North and at that time he saw the .
bus dashing against him with its left side mudguard. The High Court has, in one place, held that while Ravikant was going along the road from South to North , he was suddenly dashed by the bus coming from behind. In the first place, it is rather difficult to hold that Ravikant would be walking in that street of from South to North some 14' away from the Western kerb of the road. Secondly in his evidence before the Court Dayanand, P.W 1 did not stick to this case in the F.I.R. He stated that Ravikant was actually crossing from the Western side of the rt road to the Eastern Side of the Road. If that is true, it will only mean that Ravikant was not dashed from behind as he was going towards North but the impact took place when he was crossing the road from from West to East. The High Court was not quite clear on the point and so it observed at another place "that was precisely the reason why he (appellant) could not see the man walking ahead of him or trying to cross the road in front of his bus". If Ravikant was walking along the street in front from South to North and the bus was coming from behind, it can be legitimately said that the Driver of the Bus would see him in front and if he dashed against Ravikant as he was walking along, that would undoubtedly amount to negligence on the part of the Driver. It may have been, perhaps fool-hardy on the part of Ravikant to walk in the middle of the road about 14' away from the kerb. But that would not justify the Bus Driver knocking him down after taking due note that he was walking straight in front of the Bus. But the case assumes a different complexion if we agree with the sole eye witness in the case Dayanand P.W. 1 that at the time of the impact Ravikant was actually crossing the road from West to East. That would mean that if Ravikant suddenly crossed the road from West to East without taking note of the approaching bus there was every possibility of his dashing against the bus with out the Driver becoming aware of his crossing till it was too late. If a person suddenly crosses the road the Bus Driver, however slowly he may be driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the Bus driver was negligent."::: Downloaded on - 15/04/2017 20:41:40 :::HCHP 9
.
13. It is more than settled that in order to bring home the guilt of rash and negligent driving, three things need to be proved by the prosecution that too beyond any reasonable doubt:-
i) that the accident actually took place;
ii) that the accident took place due to rash and negligent
of
driving;
iii) that the accused was the person, who was driving the vehicle at that time.
14. These words i.e. "rash" and "negligent", have not been rt defined in the Indian Penal Code. However as per Blacks Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
15. Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by H.L.A. Hart in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently.
"A careful consideration is needed of the difference between the meaning of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take ::: Downloaded on - 15/04/2017 20:41:40 :::HCHP 10 precautions against harm. The work 'negligently', both in legal .
and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
16. The Oxford Advanced Learner's Dictionary, Sixth Edition of defines 'Rash' as doing something that may not be sensible without first thinking about the possible results.
17. In Badri Prasad Tiwari vs. State I (1994) ACC 676, it rt was held by the Hon'ble Orissa High Court that in order to establish the offence either under Section 279 or 304-A IPC, the commission of rash and negligent act has to be proved. The driving or riding on a public way, while offence under Section 304-A extends to any rash and negligent not falling short of culpable homicide. A distinction between "rashness" and "negligence" is that "rashness" conveys an idea of doing a reckless act without considering any of its consequences, whereas, "negligence" connotes want of proper care.
18. It would be noticed that the instant is a case where apart from the bare statement of PW-1 that the vehicle was being driven by the petitioner at a high speed, there was no attempt made to establish that there was any rash and negligent act on the part of the driver of the vehicle. "High speed" is an expression which is relative and subjective. Therefore, merely because of the vehicle was being driven at a high speed does not mean that the driver was driving rashly and negligently.
19. This was so held by the Hon'ble Supreme Court in State of Karnataka vs. Satish (1998) 8 SCC 493 wherein it was observed as under:
::: Downloaded on - 15/04/2017 20:41:40 :::HCHP 11"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 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 of what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused rt always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved.
Criminality is 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 loquitur". 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.
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 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 discharged."
20. The Hon'ble Supreme Court has defined "rashness" and "negligence" in Mohammed Aynuddin alias Miyam vs. State of ::: Downloaded on - 15/04/2017 20:41:40 :::HCHP 12 Andhra Pradesh, AIR 2000 SC 2511 wherein it has been held as .
under:-
"10. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with of recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against rt 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."
21. This Court in State of Himachal Pradesh vs. Piar Chand, 2003 (2) Shim. L.C. 341 while dealing with the meaning of the expression "rashness" and "negligence" observed as under:-
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or an individual."
22. Thus, it is absolutely clear that the element of "rashness"
and "negligence" is a sine-qua-non for the offences under Sections 279/304-A IPC and the same cannot be presumed.
23. At this stage, I may also refer to the judgment of the Hon'ble Supreme Court in Rathnashalvan vs. State of Karnataka, AIR 2007 SC 1064 wherein the Hon'ble Supreme Court has clearly ::: Downloaded on - 15/04/2017 20:41:40 :::HCHP 13 held that the provisions of 304-A IPC would apply to such acts which .
are rash and negligent and are direc t cause of death of another person. Relevant observations read thus:-
"7. Section 304-A applies to cases where there is no intention of to cause death and no knowledge that the act done in all probability will cause death. The provision is direction at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and rt negligent and are directly cause of death of another person.
Negligence and rashness are essential elements under Section 302-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an ::: Downloaded on - 15/04/2017 20:41:40 :::HCHP 14 individual in particular, which having regard to all the .
circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.
9. The distinction has been very aptly pointed out by Holloway J. in these words :
of "Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the rt actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but In circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of Circumspection." (See In re : Nidamorti Nagabhusanam 7 Mad. H.C.R. 119)"
24. Thus, the mere proof of accident in itself is not sufficient as the prosecution was required to establish beyond reasonable doubt that the accident was caused by the accused and the accident was due to rash and negligent driving of the vehicle by the accused. The death should be direct result of rash and negligent act. Meaning thereby, it must be "causa causans". It is not enough that it may have been causa sine-qua-non and, therefore, the mere fact that the accused may have been driving the vehicle at a very high speed in itself may not attract the provisions of Section 279 IPC and further Section 304-A IPC which also requires the driving of a vehicle to be in a rash and negligent manner. The fact that the vehicle may have been driven in a speed cannot by itself without judging the situation in which driver has been placed to be a factor to prove the rashness and negligence.
::: Downloaded on - 15/04/2017 20:41:40 :::HCHP 1525. Thus, in light of the above stated reasons, discussion and .
also the facts and circumstances emerging in the case, I am of the considered opinion that all the essential ingredients of Sections 279 and 304-A IPC could not be established fully by the prosecution.
Though, the prosecution has been able to show that accident took of place and two of the eye witnesses also saw the petitioner at the spot while driving his vehicle, but then it has not been shown or proved on rt record that the petitioner at the relevant time was driving his vehicle in a rash and negligent manner and had thereby caused the accident. In such circumstances, I am of the considered opinion that the prosecution has not been able to establish the complicity of the petitioner beyond reasonable doubt and it is more than settled that where there is a doubt created as per the circumstances and more than one analogy is emerging apart from the story narrated by the prosecution, then the benefit of doubt should be given to the petitioner.
Thus, the benefit of doubt is given in favour of the petitioner and he is accordingly acquitted of the offences under Sections 279 and 304-A IPC. The revision is accordingly allowed and judgments of conviction and sentence passed by both the learned Courts below are set aside.
Bail bond and surety of the petitioner are ordered to be discharged.
June 28th , 2016. (Tarlok Singh Chauhan)
(gr/krt) Judge.
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