M.L MEHTA, J.
1. The petitioner has moved this court under Section 397 read with Section 401 Cr.P.C He is aggrieved by an order passed by the Ld. ASJ in FIR No. 79/2001 on 28.11.2011 in Criminal Appeal No. 129/2011 whereby the Ld. ASJ confirmed the order of Metropolitan Magistrate, sentencing the petitioner to undergo rigorous imprisonment for a period of one year and fine of Rs. 1500/- under Section 304-A IPC and Rs. 500/- each for offences under Section 279 IPC and Section 337 IPC.
2. The facts of the case in brief are that on 29.01.2001 the petitioner was driving a bus bearing registration no. DL-1PA-1041 on Anandmai Marg, Govind Puri in a rash and negligent manner and hit a scooter driven by one Raju thereby causing his death. A girl named Aakhi was travelling as a pillion rider on the scooter with the deceased. She also received injuries as a result of the accident. This incident was witnessed by Charan Singh (PW-5), who gave the information to the police. On the basis of his statement, the FIR was registered. The Investigating Officer reached at the spot of the accident and found the dead body of the deceased lying there with the head bleeding profusely.
3. After completion of investigation, the charge sheet was filed by the police and 13 witnesses were examined by the prosecution to nail the petitioner's guilt and the petitioner was held guilty by the trial Court as well as the Appellate Court. Hence the present petition.
4. The counsel for the petitioner contends that the impugned orders of the Lower Courts suffer from illegality and is contrary to the law and facts of the case and evidence on record. It is submitted that the ingredients of Section 304-A are absent in the present case. It is further submitted that in the testimony given by eye-witness PW-5, it has been stated that the bus driven by the petitioner was slow and hence it cannot be said that the petitioner was driving the bus in a rash and negligent manner. It is further submitted that the petitioner should have been admitted to probation under Section 360 Cr.P.C or Probation of Offenders Act.
5. Per contra, the counsel for the State has opposed the petition stating that the rash and negligent action of the petitioner has resulted in the death of a person and the petitioner deserves no leniency in the present circumstances. It is further submitted that the public witness has given unimpeachable testimony regarding the events that unfolded before him, which has been corroborated by the testimony of PW-10.
6. I have heard the learned counsel for the petitioner and the learned APP for the State and perused the record.
7. It is seen from the perusal of the record that the scooter was seized from the spot in accidental condition. Then, as per the owner of the bus (PW8), it was the petitioner who was driving the offending bus at the relevant time. These facts are undisputed. PW5 is an independent witness, who had witnessed the accident from his house situated in front of the accidental site. He has painstakingly narrated the entire facts in a consistent manner. PW10 Aakhi, who was the rider on the pillion seat and had also received injuries in the accident testified that the bus came from behind without any horn or signal and hit their scooter from its left side, as a result of which, she fell on the other side whereas the deceased fell in front of the rear right tyre of the bus and received head injuries. From the site plan prepared by the police, the fact of the scooter being hit by the right side of the bus stands established as stated by PW5 and PW10. From the mechanical inspection reports of the scooter and the offending bus, the scratches on the left side of the scooter and also damage on the front side of the bus are also established. Further, from the post-mortem report, it is proved that deceased died of injuries on his head with a blunt force which was possible only in a road accident. There is no reason to disbelieve the reliable and consistent testimonies of PW5 and PW10. There is no reason also why a young girl and independent witness of the accident would falsely testify against the petitioner being unknown. The way Aakhi (PW10) has deposed, her inability to identify the appellant as a driver of the offending bus is of no consequence, adverse to the prosecution. She is a child, who after the accident run away to call the relations of the scooterist.
8. PW5, in his testimony, has narrated the sequence of events at length. The Appellate Court, while appreciating his testimony recorded in Para 17 and 18 of its judgment as under:
“17…According to him, after the collision had taken place, he had run after the bus which was moving away from the spot. He categorically stated that he approached the bus, in hot pursuit, from the right side, i.e driver side. This would undoubtedly give him full view of the driver who was at the steering wheel of the bus, though it was moving away. It has come in his evidence that bus stopped at some distance at the traffic signal after the collision on red light signal. Though witness would stated that the bus had stopped to offload some passengers at that place, it is clear that the bus was unable to move ahead also on account of red light traffic signal.
18. Be that as it may, it cannot be doubted that PW-5 would have been able to chase the bus right up to the red traffic signal because it was a very short distance from the spot of collision. This is demonstrated by the further fact that PW-5 explains that after the bus driver had sped away with his vehicle, ignoring his efforts to stop him, he had returned to the spot and it took him hardly one minute to cover the distance.”
9. There cannot be any dispute that simply because the accident happened resulting in injury or death of someone, it cannot be taken for granted that the driver of the offending vehicle involved in the accident was guilty of crime. Ordinarily, it is for the prosecution to establish the guilt of the accused beyond reasonable doubt except where the rule of res ipsa loquitur was available. In such a case, the court may be justified in coming to the available conclusion in the absence of evidence.
10. In the case of Prabhakaran v. State Of Kerala, AIR 2007 SC 2376, the Supreme Court observed thus:
“7…. 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 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.
8. The distinction has been very aptly pointed out by Holloway J. in these words:
“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 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)
11. The submission that PW5 has stated the bus being driven at the slow speed was dealt with by the ASJ in Paras 26, 28 & 29 of the impugned judgment as under and to which, I do not see any reason to differ:
“26. In his statement in the court, PW-5 stated that the bus driven by the appellant had hit against the scooter with its right side. The scooterist came to be crushed by the right “tyre” (wheel) of the bus with the girl falling on the other side. During the examination in chief itself PW-5 would say he could not say as to how the accident occurred adding that the bus was slow.
28. In my considered view, the absence of dragging marks/skid marks on the road are not always or invariably necessary to prove rashness/negligence of the driver of the offending vehicle. In a case where in the opinion of eye witness, “bus was slow” at the relevant point of time, there could not have been any dragging marks/skid marks caused on the road. The absence of dragging marks on the dead body again is of no consequence as there is no doubt from the material on record that the sccoterist had suffered injuries due to the fall on account of he having fallen from the moving scooter on it being hit by the bus.
29. The statement of PW-5 about the bus being “slow” cannot clinch the issue in favour of the appellant or dilute the case of prosecution about the rash/negligent driving. The use of the expression “slow” in his opinion. He was a bystander. He could not actually guage the exact speed of the vehicle. The terms used is relative. It at the most shows that the bus was not moving at very rash speed. But then, absence of rash speed by itself cannot absolve the appellant”.
12. The fact that the scooterist was moving on a straight road and was hit from behind by right side of the bus making it fall would show that the bus was not being driven with due care and caution, but was being driven recklessly and negligently. It was being driven in a wanton fashion without any regard to the safety of the people travelling in front of it. Though, there may not be the intention of the petitioner to cause an accident, but the way a heavy vehicle was being driven on the busy road was itself indicative of his negligence and indifference to the consequence. From all this discussion, the irresistible conclusion comes out to be that offending vehicle was being driven by the petitioner in a rash and negligent manner so as to danger the human life.
13. Now, coming to the issue of award of probation to the petitioner, it may be reiterated that due to rash and negligent action of the petitioner an innocent person lost his life without any fault on his part. There is no possible justification for being casual and indifferent to the safety of public by such drivers. This Court in Crl.Rev.P No. 281/2005, Dharmendra v. State, decided on 10.02.2012 has stressed that:
“10. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic, thus endangering the life of public at large, which cannot be allowed.”
14. Further, from the perusal of the impugned judgment of the Appellate Court, it can be seen that the benefit of probation has not been extended to the petitioner considering the seriousness of the offence committed by him. The Apex Court in Commandant, 20th Battalion, ITB Police v. Sanjay Binjola, 2001 Crl LJ 2349 has enunciated the cases where such benefit should not be extended in the following words:
“9…….It is true that nobody can claim the benefit of Sections 3 and 4 of the Probation of Offenders Act as a mater of right and the court has to pass appropriate orders in the facts and circumstances of each, case having regard to the nature of the offence, its general effect on the society and the character of the offender, etc. There are laws which specifically direct that the provisions of Probation of Offenders Act shall not apply to the persons convicted for those offences and there may be cases under other laws as well which may not justify the exercise of the powers of Probation of Offenders Act. Even apart from such exclusions the courts should be wary of extending the benefit of Probation of Offenders Act to offences relating to corruption, narcotic drugs, etc. This Court has indicated in Dalbir Singh v. State Haryana: 2000 Cri LJ 2283 that benefit of Probation of Offenders Act should not normally be afforded in respect of the offences under Sections 304A IPC when it involves rash or negligent driving. These are instances for showing how the nature of the offence could dissuade the court to give the benefit.”
15. Keeping in view the facts and circumstances of the case and the above pronouncements, I am of the view that the trial court and the Appellate Court have rightly sentenced the petitioner to imprisonment and their Orders require no interference. The petitioner is directed to surrender forthwith to undergo the awarded sentence.
16. In view of above discussion, this revision petition is accordingly dismissed.
Comments