Himachal Pradesh High Court
Jagdev Chand vs State Of Himachal Pradesh on 20 August, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Criminal Revision No.20 of 2008
Judgment reserved on: 15.7.2016
.
Date of Decision : 20th August , 2016
Jagdev Chand ......Petitioner.
Versus
State of Himachal Pradesh ...... Respondent.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. N.S.Chandel, Advocate.
For the Respondent
rt :
Mr. Rupinder Singh Thakur, Additional
Advocate General.
Sandeep Sharma, Judge (Oral)
Instant Criminal Revision Petition is directed against the judgment dated 15.1.2008, passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. in Criminal Appeal No. 37/10 of 2006, affirming the judgment of conviction and order of sentence dated 20.9.2006, passed by learned Additional Chief Judicial Magistrate Ghumarwin, District Bilaspur, HP; in Criminal case No.253/1 of 1998, whereby present petitioner has been held guilty of having committed the offence under Sections 279,337, 338 of Indian Penal Code and under Section 181 of Motor Vehicles Act and has been further sentenced to undergo simple imprisonment for three months and to pay fine of Rs. 500/-, and in default to undergo simple imprisonment for one month for the commission of Whether reporters of the local papers may be allowed to see the judgment?
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offence punishable under Section 279 IPC. The accused has been further sentenced to undergo simple imprisonment for .
one month and to pay fine of Rs. 500/- and in default to undergo simple imprisonment for one for the commission of offence punishable under Section 337 of IPC. The accused is further sentenced to undergo simple imprisonment for two months and to pay fine of Rs. 1000/- and in default to undergo of simple imprisonment for one month for the commission of offence punishable under Section 338 of IPC. The accused is rt further sentenced to undergo simple imprisonment till raising of the Court and to pay fine of Rs. 500/- and in default of payment of fine, accused shall further undergo simple imprisonment for 15 days for the commission of the offence punishable under Section 181 of the Motor Vehicles Act. All the substantive sentences of imprisonment have been ordered to run concurrently.
2. Briefly stated facts, as emerge from the record are that PW-9, Rajesh Kumar sent ruqua Ex.PW9/A, to Police Station, Ghumarwin on 17.7.1998, at about 8.40 PM alleging therein that he alongwith constable Anil Kumar No.352(PW-7) was coming on motorcycle No.HP-24-1710 after conducting investigation in case No.69/98 from Bhager and when they reached at 7:45 PM near Hanuman Temple at Kullaru, a truck bearing registration No.HP-11-1639 came from Ghumarwin ::: Downloaded on - 15/04/2017 21:02:40 :::HCHP ...3...
side with fast speed, as result of which, motorcycle was slowed down on its left side where a pedestrian was also going. But the .
truck driver failed to control the truck and he finding it coming on them jumped from the motorcycle, and truck collided with the motorcycle, as a result of which, Anil Kumar with motorcycle fell in the drain and the pedestrian was also involved in the accident. The accident occurred due to rash and of negligent driving of truck No. HP-11- 1639 by its driver i.e Jagdev Chand. On the basis of Ex.PW9/A, FIR Ex.PW9/B came to rt be registered at the police Station. PW-8, Nazir Khan conducted investigation. During investigation, he also got photographs of the spot clicked which are Ex.PW4/A to Ex.PW4/D and negatives being Ex.PW4/E to Ex.PW4/H. The mechanical examination of truck No.HP-11-1639 was also got conducted from mechanic Jagdish vide report Ex.PW8/A and similarly the mechanical examination of motorcycle No.HP-24-1710 was got conducted by PW-9, Rajesh Kumar vide mechanical examination report Ex.PW9/D. PW-9, also prepared site plan Ex.PW9/C and the truck in question was seized by police vide memo Ex.PW1/A in presence of Karam Chand and Piar Singh witnesses. PW-6, Hem Raj was also got medically examined vide MLC Ex.PW11/A and PW-7, Anil Kumar injured was also medically examined vide MLC Ex.PW11/B and X-rayed vide form Ex.PW3/A.The x-ray films being Ex.PA to EX.PC and report ::: Downloaded on - 15/04/2017 21:02:40 :::HCHP ...4...
in respect thereof being Ex.PW3/B are on record. It also emerge from the record that PW-7, Anil Kumar was subsequently .
treated at IGMC Shimla. Police on the basis of the material collected on record came to the conclusion that a prima-facie case exists against the accused, accordingly, presented the challan in the Court of law.
3. Learned trial Court after satisfying itself that a of prima facie case exists against the accused, framed the notice of accusation under Sections 279, 337, 338 of Indian Penal rt Code and under Section 181 of the Motor Vehicles Act against the accused, to which accused pleaded not guilty and claimed trial.
4. Learned trial Court after appreciating the material evidence available on record held the accused guilty for the commission of offence punishable under Sections 279, 337, 338 of Indian Penal Code and 181 of the Motor Vehicles Act, and sentenced the accused, as per the description given hereinabove.
5. Present petitioner being aggrieved and dissatisfied with the impugned judgment dated 20.9.2006, passed by learned trial Court, filed an appeal under Section 374 Cr.P.C before the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P, which was dismissed vide judgment dated 15.1.2008. Hence, the present criminal revision petition.
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6. In the present case, prosecution with a view to prove its case beyond reasonable doubt examined as many as .
12 witnesses. The statement of accused under Section 313 Cr.P.C was also recorded, wherein he denied the case of the prosecution in its entirety, however, he did not lead any evidence in his defence.
7. Mr. N.S.Chandel, learned counsel appearing on of behalf of the petitioner vehemently argued that the judgments passed by both the Courts below are not sustainable as the rt same are not based upon the correct appreciation of the evidence available on record and as such, same deserves to be quashed and set-aside. Mr. Chandel, strenuously argued that the Courts below holding the present petitioner guilty for having committed the offence under Sections 279,337, 338 of IPC and under Section 181 of the Motor Vehicles Act have completely overlooked the facts that there are material contractions in the version of the witnesses examined by the prosecution, which goes to the root of the present case. He further contended that in view of the material contradictions in the version of the prosecution witnesses, it was not safe for both the Courts below to have recorded the conviction against the petitioner. Mr. Chandel, further argued that both the Courts below have erred in law while convicting the accused, without there being any positive evidence on record. During his ::: Downloaded on - 15/04/2017 21:02:40 :::HCHP ...6...
arguments, he made this Court to travel through the statements given by the prosecution witnesses to demonstrate .
that learned trial court while recording conviction failed to appreciate that constable Anil Kumar(PW-7), who was driving the motorcycle, was not authorized by the department to drive the same and was not even trained to drive the same. He also stated that PW-7 was not holding any valid driving licence of authorizing him to drive the said vehicle. Hence, both the Courts below ought to have drawn adverse inference against rt PW-7, who was not authorized to drive the motorcycle. Mr. Chandel, also pointed out that none of the prosecution witness has categorically stated that the truck in question was being driven in rash and negligent manner. As per Mr. Chandel, no positive evidence, worth the name, has been led on record by the prosecution suggestive of the fact that at the relevant time vehicle was being driven in rashly and negligently by the accused, which was necessary for prosecution to prove the case against the petitioner-accused. Mr. Chandel, forcibly contended that both the Courts below have erred on facts and law in not appreciating the material evidence on record in its right perspective and learned Courts below have completely overlooked the fact that PW-9, who was sitting with PW-7 on the motorcycle had jumped from the motorcycle, as a result of which, motorcycle fell down and PW-7 received injuries. While ::: Downloaded on - 15/04/2017 21:02:40 :::HCHP ...7...
concluding his arguments, Mr. Chandel stated that vital and important aspect of the case has completely been overlooked .
by the learned trial Court and as such, serious prejudice has been caused to the petitioner and as such, judgment of conviction recorded against the accused needs to be quashed and set-aside.
8. On the other hand, Mr. Rupinder Singh Thakur, of learned Additional Advocate General, supported the judgments passed by both the Courts below and stated that no rt interference, whatsoever, of this Court is warranted in the present case as the judgments passed by both the Courts below are based on the correct appreciation of evidence available on record. Mr. Thakur, further contended that bare perusal of the statements led on record by the prosecution goes to show that the prosecution has been able to prove its case beyond reasonable doubt and as such, no fault, if any, can be found in the judgments passed by the Courts below. Mr. Thakur, during his arguments, invited the attention of this Court to the statements given by the prosecution witnesses to demonstrate that there are no contradictions, whatsoever, as have been alleged by the petitioner and as such, both the Courts below on the basis of the evidence adduced on record by the prosecution has rightly came to the conclusion that accused is guilty of having committed the offence punishable ::: Downloaded on - 15/04/2017 21:02:40 :::HCHP ...8...
under Sections 279,337,338 of IPC and under Section 181 of the Motor Vehicles Act. Mr. Thakur, vehemently argued that no .
lenient view can be taken in the present case where it stands duly proved on record that PW-6 and PW-7 suffered injuries due to rash and negligent driving of the accused. He also invited the attention of this Court to the judgment passed by the Hon'ble Apex Court in State of Punjab versus Saurabh Bakshi of 2015 (5) SCC 182; wherein Hon'ble Apex Court has held that courts below while dealing with the accident cases should rt exercise great constraint while taking lenient view against reckless drivers, who drives rashly and negligently. He also submitted that this Court has very limited powers to re-
appreciate the evidence available on record, especially when it clearly emerge from the record that both the Courts below have very meticulously dealt with each and every statements of the witnesses brought on record by the prosecution. He prayed that the present petition deserves to be dismissed being devoid of any merit.
9. I have heard the learned counsel representing the parties and have carefully gone through the record made available.
10. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to re-appreciate the evidence available on ::: Downloaded on - 15/04/2017 21:02:40 :::HCHP ...9...
record. But in the present case, where accused has been convicted and sentenced under Sections 279, 337, 338 of the .
Indian Penal Code and under Section 181 of the Motor Vehicles Act, this Court solely with a view to ascertain that the judgments passed by both the Courts below are not perverse and same are based upon correct appreciation of evidence available on record undertook an exercise to critically examine of the evidence available on record to reach fair and just decision in the case.
11. rt Careful perusal of the record made available to the Court as well as judgments passed by both the Courts below clearly suggest that on 17.7.1998, Hem Ra j(PW-6) Pedestrian and PW-7, Anil Kumar, who was driving the motorcycle suffered simple as well as grievous injuries in the accident, which was allegedly caused due to rash and negligent driving of the present petitioner-accused, who was driving the truck in question on the public road without having valid driving licence. Perusal of ruqua Ex.PW9/A, on the basis of which FIR Ex.PW9/B was registered suggest that PW-9, Inspector Rajesh Kumar and PW-7, Constable Anil Kumar were coming on motorcycle bearing registration No. HP-24-1710 after conducting the investigation in case No.69/98 from Bhager. On the ill-fated day around 7:45 PM when they reached near Hanuman Temple at Kullaru, a truck bearing registration No.HP-
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11-1639 came from Ghumarwin side with fast speed and struck against the motorcycle, as a result of which, motorcycle .
fell in the drain and a pedestrian, who was walking on the left side of the road was also involved in the accident.
12. After going through the record of the case, it appears that statements made by PW-6,Hem Raj, PW-7, Anil Kumar and PW-9, Rajesh Kumar are material to decide the real of controversy at hand. PW-6,Hem Raj stated that on 17.7.1998 when he was coming on foot towards Ghumarwin from Kullaru rt at 7:45 PM on the left side of the road, a motorcycle ridden by two police people crossed him. He further stated that in the meantime a truck came from Ghumarwin side in fast speed and hit the motorcycle, as a result of which, motorcycle collided with him causing injuries to him as well as other police people. He also stated that accident occurred due to rash and negligent driving of the truck driver. In his cross-
examination, he admitted that motorcycle had taken pass from his right side, however when he was confronted with his statement mark X part A to A, such pass is mentioned to have taken from his left side, which as per statement of the witness is/was wrong since he had stated in his statement that the motorcycle took pass from his right side. Similarly, PW-6 also stated that he was not aware of the names of police people riding motorcycle, but in part B to B of his statement mark-X ::: Downloaded on - 15/04/2017 21:02:40 :::HCHP ...11...
the names of police people are found to be mentioned which the witness explained having not so got recorded.
.
13. Careful perusal of the statement of PW-6 suggests that there are material contradictions in his statement and this Court is of the view that the learned Courts below have not dealt with the same with due care and caution while placing reliance on the same. It has specifically come in his statement of that when he was going on foot to Ghumarwin from Kullaru on the left side of the road, a motorcycle ridden by two police rt people crossed him. At this stage, it is not understood that if as per statement of PW-6 motorcycle had crossed him, how he could be hit by the motorcycle, which was struck by the truck.
Similarly, as has been observed above, PW-6 during his cross-
examination stated that the motorcycle had taken pass from his left side, whereas when he was confronted with mark X part A to A recorded before the police, he stated that motorcycle had taken pass from his right side. Careful perusal of the aforesaid statement made by PW-6, Hans Raj clearly suggests that there are contradictions regarding mode and manner of taking pass and names of police people at the time of recording his statement under section 161 Cr.P.C.
14. Perusal of the judgments passed by both the Courts below suggest that they have not dealt with the aforesaid major contradictions pointed out by the counsel ::: Downloaded on - 15/04/2017 21:02:40 :::HCHP ...12...
representing the accused in its right perspective, rather simply brushed aside by stating that it was nowhere the case of the .
defence that the police people namely PW-7 and PW-9 were not riding the motorcycle at the time of the accident. PW-7 deposed that on 17.7.1998, he alongwith PW-9 had gone to Bhager on motorcycle and when they reached at about 7:45 in the evening near Hanuman temple, a truck came from front of side in fast speed on the wrong side of the road and hit his motorcycle. In his cross-examination, he denied that he was rt coming from Bhager side in fast speed and accident occurred due to taking of pass from wrong side of the pedestrian. He also denied that on account of such wrong pass motorcycle became uncontrolled and collided with the pedestrian due to this reason PW-9 had jumped down but he self stated that motorcycle was stationary and PW-9 had got down. Perusal of the aforesaid statement as well as cross-examination of aforesaid prosecution witness, PW-7, who allegedly suffered injuries also indicates that aforesaid witness contradicted his statement. He in his statement though stated that PW-9 was sitting as pillion rider and a truck came from front side in fast speed and hit his motorcycle, PW-9,who sitting as pillion rider got down at that very time and his motorcycle fell in the drain and hit pedestrian also. Aforesaid statement made by PW-7 is in contradictions with the statements of PW-6 as well as PW-9, ::: Downloaded on - 15/04/2017 21:02:40 :::HCHP ...13...
who have categorically stated that PW-9 had jumped from the motorcycle before it struck with the truck in question.
.
15. PW-9, Rajesh Kumar, who was a pillion rider also stated that on 17.7.1998 he alongwith Anil Kumar was coming back on motor-cycle No.HP-24-1710 after conducting the investigation in case No.69/98 and at 7:45 PM when they reached near Kullaru Hanuman temple, a truck came in fast of speed on wrong side from the front, at which, Anil Kumar slowed down his motorcycle and finding the truck coming on rt them he got down and Anil Kumar had halted his motor cycle but could not get down from his motorcycle, as a result of which, motorcycle fell down in the drain and struck with the pedestrian also.
16. After perusing the statement of PW-9, it clearly stands established on record that aforesaid witnesses PW-6, PW-7 and 9, who were alleged eye witnesses to the accident have been not very candid, specific and straight forward in making depositions before the trial Court, rather careful perusal of their statements suggest that all of them have tried to twist the facts and have contradicted with each other. Though, PW-6, PW-7 and PW- 9 have stated that when the truck struck against the motorcycle, motorcycle fell down and the pedestrian, who was going towards Ghumarwin was also hit but it is not understood that how PW-6, (pedestrian) could get ::: Downloaded on - 15/04/2017 21:02:40 :::HCHP ...14...
injured in the alleged accident when as per his version motorcycle had already taken pass from him before colliding .
with the truck. Similarly, all the three material prosecution witnesses have given different version with regard to getting down of PW-9 form the motorcycle just before the accident.
PW-6 categorically stated that at the time of accident PW-9 had got down from the motorcycle, whereas PW-7 stated that ASI of Rajesh Kumar was sitting as pillion rider and got down at that time when his motorcycle fell in the drain and hit the rt pedestrian also. PW-9 in his statement stated that when they reached near Kullari Hanuman temple, a truck came with fast speed on wrong side of the road from the front side and on seeing the truck Anil Kumar slowed down his motorcycle. He further stated that on finding that truck coming on them he got down and Anil Kumar had halted his motorcycle but could not get down and the truck collided with the stationary motorcycle.
17. Bare perusal of the statements, as discussed hereinabove, clearly suggest that all the three star witnesses produced on record by the prosecution to prove their case have contradicted each other with regard to mode and manner of the accident and as such, Courts below were expected to exercise due care and caution while relying upon their statements, otherwise also if the statement given by these ::: Downloaded on - 15/04/2017 21:02:40 :::HCHP ...15...
witnesses i.e. PW-6, PW-7 and PW-9 are read in its entirety it does not appear to be trustworthy, rather same appeared to be .
shaky. Hence, Courts below have fallen in grave error while recording the conviction against accused on the basis of their statements, which otherwise appears to be untrustworthy.
18. Though, prosecution by leading medical evidence i.e. PW-3, Dr. N.K.Sankhyan and PW-11, Vikas Mandyal of attempted to demonstrate that PW-7, Anil Kumar suffered fracture of right leg but same cannot be of any use for the rt prosecution in view of the fact it has miserably failed to prove mode and manner of the accident. This Court while perusing the record made available to it could lay its hand to the photographs clicked on the spot after the accident, which nowhere supports the case of the prosecution. Admittedly, photographs of the truck have been taken in the police station, whereas photographs of motorcycle were taken on the spot, which also does not indicate anything towards the mode and manner of the accident. Though, prosecution has rendered explanation that at the time of taking photographs truck was already removed from the spot but even perusal of the photographs of the motorcycle taken at the site of the accident may not be of any help to the prosecution to prove that the motorcycle was being driven on the left side of the road and truck was being driven on the wrong side.
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19. PW-8, Nazir Khan stated that he had inspected the spot after the accident and got photographs clicked Ex.PW4/A .
to Ex.PW4/D with negatives being Ex.PW4/E to Ex.PW4/H. In his cross-examination, he admitted that he had taken photographs of the truck at the spot and in the next breath he has stated that he had taken photographs on 20.7.1998. PW-9, Rajesh Kumar in his statement stated that he had taken photographs of from Dharam Pal being Ex.PW4/D, the negative thereof being Ex.PW4/H. PW-4, Dharam pal stated to have taken photographs rt of truck No.HP-11-1639 at the police station and of motorcycle No.HP-24-1710 at the spot being Ex.PW4/A to Ex.PW4/D, the negatives being Ex.PW4/E to Ex.PW4/H. Careful perusal of statements of PW-8 and 9 itself suggest that photographs were not taken at the site of the accident, rather same were taken at the police station. PW-8, in his cross-examination stated that he had got mechanical examination of truck as well as motorcycle on 20.7.1998, whereas PW-9 stated that he got mechanical examination conducted through Lekh Ram mechanic vide report Ex.Ex.PW9/D.
20. Perusal of statements of PW-8 and PW-9 clearly suggest that they have contradicted with each other on every aspects, be it photographs or mechanical examination got conducted after the accident. Further perusal of the judgment passed by learned First Appellate Court suggests that it has ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...17...
fallen in grave error while upholding that the finding of trial court that the petitioner was without driving licence calls no .
interference as he could not establish during the trial that he was in possession of valid driving licence. But it is not understood at this stage that how the courts below could have brushed aside the admission made by PW-7 in his cross-
examination, where he stated that he had not received any of training to drive the motorcycle. It has also come in his statement that he was not authorized to drive the motorcycle.
rt But interestingly, court below while examining the issue of driving licence have applied different yardstick in the case of the accused as well as PW-7. Learned court below failed to take note of admission having been made by PW-7, wherein he admitted that was not authorized by the department to drive the same and he was not even trained to drive the same. Apart from above, PW-7 also stated that he was not holding any driving licence authorizing him to drive the said vehicle. After perusing the evidence on record, this Court is compelled to presume that PW-7, who was not authorized to drive the motorcycle and was not having valid licence, himself contributed in the unfortunate accident, who after seeing the truck coming from Ghumarwin side got jittery and fell down from the motorcycle.
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21. This Court had an occasion to peruse the statements of the prosecution witnesses in its entirety. This .
Court, after analyzing the statements made by aforesaid prosecution witnesses has no hesitation to conclude that their testimonies do not appear to be trustworthy because of none of the aforesaid prosecution witnesses has been specific, candid and straight forward while giving sequences of events, rather of all the prosecution witnesses have contradicted each other on material points i.e. mode and manner of the accident. All the rt prosecution witnesses have narrated their own facts with regard to the accident and in no manner they have corroborated the statements of each other. Since all prosecution witnesses were eye witness to the alleged accident, they were expected to make truthful disclosure of events occurred at the time of alleged accident but this court after perusing the statements on record is of the view that prosecution has not led cogent and convincing evidence on record to prove that the accident was caused due to rash and negligent Act of the accused. Needless to say, the testimonies of the witnesses after scrutiny was found unreliable and improper and ought to be rejected, but in the present case, both the Courts below while recording conviction of the accused on the basis of the statements of the aforesaid witnesses failed to exercise due care and caution while dealing ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...19...
with the contradictory statements made by prosecution witnesses. Whenever, there are contradictions apparent on .
record, it was incumbent upon the court below before relying upon their testimonies to seek corroboration in regard to the material particulars. In the instant case, the witnesses who have deposed against the accused persons have contradicted with each other on the material points, specifically mode and of manner of the accident, meaning thereby prosecution has not been able to prove the accident. Apart from above, as has been rt observed in detailed, PW-8 and PW-9 who allegedly clicked photographs and gave mechanical report contradicted each other and as such no reliance, if any, could be placed by the Court below on the evidence led on record by the prosecution, while recording conviction against the accused.
22. Apart from above, none of the prosecution witness has been specific and candid in stating that in what manner truck in question was being plied rashly and negligently by the accused. It was incumbent upon the prosecution to lead cogent and convincing evidence to prove on record that at the relevant time truck was being driven rashly and negligently by the accused and mere statement that vehicle was being driven rashly and negligently could not be sufficient to return findings that vehicle was being driven rashly and negligently. None of the prosecution witnesses stated with ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...20...
regard to the fast speed, if any, of the vehicle involved in the accident at the relevant time and as such both the Courts have .
fallen in grave error while retuning its findings that the vehicle was being driven rashly and negligently by the accused. In this regard reliance is placed upon the judgment rendered by the Hon'ble Apex Court in Basappa v. State of Karnataka, 2014 (5) SCC154, which reads as under:-
of "16. True that in the instant case the appellant has been found to be guilty of offences punishable under rt 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 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."
23. 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:-
"2. The appellant was the driver of a bus of the Himachal Pradesh Road Transport Corporation ( 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 ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...21...
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 of filed and he pleaded innocence.
6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on rt record to show any negligence. It has not been 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 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.
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 ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...22...
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."
24. Reliance is also placed on Judgment rendered of by the Delhi High Court in Abdul Subhan V. State, 2007 CRI. L. J. 1089, the relevant paras of which are reproduced rt herein below:-
"10. I now take up examination of the question of convicting a person merely on the allegation that he 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 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 ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...23...
"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 give any indication, of even approximately, as to what they meant by "high-speed". "High-speed" is a relative term. It was for the prosecution to rt 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 always rests on the prosecution and there is a presumption of innocence in favor 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 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 ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...24...
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 of to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view rt 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. 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 ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...25...
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 petitioner of was driving the truck at a high-speed, that the petitioner is guilty of a rash or rt 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 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 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 ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...26...
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 of doing a reckless act without considering any of its consequences whereas negligence connotes want of proper care. The case in Badri Prasad rt (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: --
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 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 ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...27...
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 of expression, there is nothing on record to establish that the petitioner drove the vehicle rashly and/or negligently or did any act which rtwould 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."
25. Reliance is also placed on Judgment rendered by the Hon'ble Apex Court in Ambalal D. Bhatt v. The State of 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 ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...28...
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 of 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 rt 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 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 ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...29...
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 of the barrels. In of Suieman Rahiman Mulani v. State of Maharashtra the accused who was driving a car rtonly 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 dangerous nature having sensitive composition where even friction or percussion could cause an explosion, that contravention would be the causa causans.
26. 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 ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...30...
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 Court to the conclusion that the accused was driving of the vehicle in a rash or negligent manner at the time of the incident. I have already made my observations in regard to the rt 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 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 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 ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...31...
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 of be dislodged. I am, therefore, not prepared to draw any inference of speed from the mere fact that 11 guard stones rt 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 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 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 ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...32...
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 of Magistrate is correct. This appeal must, therefore, be dismissed and the order of rt acquittal confirmed. Bail bonds cancelled."
27. 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:-
25. Before parting with the case we are compelled to observe that India has a 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 ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...33...
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."
28. There cannot be any quarrel, whatsoever, with of regard to the observations made by the Hon'ble Apex Court with regard to the careless/reckless driving of the drivers and rt drivers driving under the influence of alcohol deserves to be punished without any leniency. But in the present case, as has been discussed in detail above, prosecution has been not able to prove the mode and manner of the accident and also that accused was driving rashly and negligently at the time of unfortunate incident and as such, conviction recorded by the court below deserves to be quashed and set-aside.
29. Consequently, in view of the aforesaid discussion, this Court is of the view that courts below have fallen in grave error while recording conviction against the accused because bare perusal of the statements adduced on record suggest that courts below have not appreciated the evidence in its right perspective. Perusal of the statements given by material witnesses PW-6, PW-7 and PW-9 clearly indicates that there are major contradictions and none of them ::: Downloaded on - 15/04/2017 21:02:41 :::HCHP ...34...
have specifically stated anything with regard to mode and manner of the accident. Apart from above, prosecution has not .
led on record any cogent and convincing evidence to demonstrate that the truck in question was being driven in rashly and negligently at the time of the accident.
30. In view of the aforesaid discussion, the present petition is allowed and the judgments passed by the both the of Courts below are quashed and set-aside. The petitioner is acquitted of the notice of accusation. His bail bonds are rt discharged. The fine amount, if any, deposited by the petitioner-accused be refunded to him.
(Sandeep Sharma )
August 20, 2016 Judge.
(shankar)
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