IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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Cr. Revision No. 69 of 2008. Judgment reserved on: 22.6.2 . 016P. Date of decision : Ju th ne H 28 , 2016. __________________________________________ f __________________ Bir Singh …Petitioner. Versus State of Himachal Pradesh o …Respondent. Coram
The Hon'ble Mr. Justice Tarlok S r ing t h Chauhan, Judge. Whether approved for reporting? Yes For the Petitioner o : uMr. Onkar Jairath, Advocate. For the Respondent : Mr. J.S. Guleria, Assistant Advocate C General.
Tarlok h Singh Chauhan, Judge g i This revision petition under Sections 397 and 401 of the H
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
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22.11.2001 at about 9.15 a.m. the complainant Kumari Anjana and he . r cousin Shashi Kanta were standing by the side of the road a P t Pucca Paroh as they were waiting for a bus to go to Amb, in H the me . anwhile a private vehicle bearing registration No.CH-03A-3959 being driven by the petitioner came from the side of the Una in v f ery high speed and hit
Kumari Shashi Kanta due to which she o sustained injuries and was
brought to hospital Amb for treatm r ent t in the same vehicle which hit her. As per the complainant the u accident took place because of rash and negligent driving on o 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 C., Amb the injured was referred to PGI, Chandigarh and on h 26.11.2001 she succumbed to her injuries, due to which the of g fence punishable under Section 304-A IPC was also added against i the petitioner. After completion of investigation the challan was filed H
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
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one month. The petitioner was sentenced to undergo rigorou . s imprisonment for two years and to pay fine of `2000/- for P offence punishable under Section 304-A IPC and in default of payme . nt of fine, to undergo rigorous imprisonment for six months. H
4. Aggrieved by the judgment passe f d b y the learned trial Court, the petitioner filed an appeal be o fore the learned Additional Sessions Judge, Fast Track Co r urt, t Un a, who vide judgment dated 1.4.2008 upheld the judgme u nt of the learned trial Court and modified the sentence part and accordingly sentenced the petitioner to undergo S.I. for three months a o nd six months for the offences punishable under
Sections 279 an C d 304-A IPC, respectively, while the sentence of fine for both h the offences was maintained. 5. g Aggrieved by the judgments of conviction and sentence i passed by both the learned Courts below, the petitioner filed the instant H
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.
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I have heard learned counsel for the parties and gon . e through the records of the case carefully. P
7. It would be noticed that the specific defen . ce of the petitioner is that at the relevant time he was d f rivin g H the vehicle at a slow speed and the deceased suddenly o came on the road after crossing the bus which was standing there which resulted in the accident. The statements of PW-1 r an t d PW-3 are very relevant as they are material witnesses who were present at the spot with deceased, but their statements o have u been discussed in a very slipshod and cursory manner by both the learned Courts below.
8. P W C -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 ro g ad sid h e at Pucca Poroh when Tata Sumo bearing registration No. i CH-03A-3959 came at a very high speed from the side of Una towards H
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
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was trying to cross the road in front of the bus but stated that th . e petitioner was trying to overtake the bus which eventually cau P sed the accident. She further stated that Tata Sumo was being driv . en at high speed. H
9. PW-3 in his cross-examination has f co ntradicted PW-1 by stating that there was no bus standing a t t o he bus stop. One fact which emerges from the statement o r f P t W-1 and has not at all been appreciated by both the learned Courts below in its right perspective is that there was a bus s o tandin u g at the bus stop and proceeding towards Amb and it was this stationary bus which was being overtaken by the
petitioner wh en C the accident took place. In such circumstances, the stateme h nt of PW-1 has to be appreciated by taking into consideration th g e spot map Ex.PW-9/A which unfortunately has not at all been i considered by either of the Courts below. In the spot map, it has been H
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
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presumption of negligence from the mere fact that a man is knocke . d down and killed by a motorist. Relevant observations read as u P nder:-
"3. As far as the first point is concerned, th H e Supr . eme Court has, in its unreported decision, D/-21-3-19 68 in (1968) Criminal Appeal No. 154 of 1965 (SC), held that the use of the expression "high speed" (that be o ing th f e expression used by a witness in the case before the Supreme Court) was not enough to prove rashness or n t egligence, unless evidence was elucidated from the w r itness who used that expression as to what his notion u of speed was. As far as witness Kasturi Satayya is concerned, no evidence whatsoever has been elicited from o him to show what his notion of "fast speed" was. As far as witness Yasminkhan is concerned, an attempt has bee C n made to elicit from him, in the course of cross-e xamination, as to what his notion of "fast speed" was, and he h stated that the lorry was, in his opinion, proceeding at a speed of 35 miles per hour when the boy was knocked down. The
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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 H
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
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there must be a direct nexus between the death of a perso . n and the rash or negligent act of the accused. In running-down cases the death of the pedestrian may very well . be P purely accidental, or may be due to his own neglige H nce. To presume that because a pedestrian has been kno cked down and has died, the driver of the motor vehicle f that knocked him down must be guilty of rashness or negligence overlooks these two possibilities. It is necessary for subordinate Courts to bear in
mind that the prosecution mu st poroduce evidence to establish
rash or negligent driving of t the motor vehicle by the accused. I
am told that, at u one r time, it was the practice of the Chief Presidency Magistrate of Bombay to allot running-down cases only to tho o se Magistrates who knew motor-driving. The traffic problem in the city has now become very acute and I wonder whe C ther it would not be advisable for the Chief Presidency M agistrate to revert to that practice, if it is possible to do so."
12. h In Mahadeo Hari Lokre vs. The State of Maharashtra iAIg R 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
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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
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tin batti, that is, towards the North and at that time he saw th . e bus dashing against him with its left side mudguard. The High Court has, in one place, held that while Ravikant wa P s going along the road from South to North , he was sudden.ly dashed by the bus coming from behind. In the first place, it is rather difficult to hold that Ravikant would be w alkHing in that street from South to North some 14' aw o ay fr f om the Western kerb of the road. Secondly in his evide nce before the Court Dayanand, P.W 1 did not stick to this case in the F.I.R. He stated that Ravikant was actually cro t ssing from the Western side of the
road to the Easte u rn Sid r e of the Road. If that is true, it will only mean that Ravikant was not dashed from behind as he was going towa o rds 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
" tha C t was precisely the reason why he (appellant) could not see h 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
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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 H
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."
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13. It is more than settled that in order to bring home the gu.ilt of rash and negligent driving, three things need to be prov . ed P by the prosecution that too beyond any reasonable doubt:-
i) that the accident actually took place; H
ii) that the accident took place du f e to rash and negligent driving;
iii) that the accused was the o person, who was driving the vehicle at that time.
14. These words i.e. "ra r sh" t and "negligent", have not been defined in the Indian Pen u al Code. However as per Blacks Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure C to e o xercise the degree of care that someone of ordinary prud ence would have exercised in the same circumstances. 15. h Quoting from the article "Negligence, Mens Rea and Cr g iminal Responsibility" by H.L.A. Hart in Punishment and i Responsibility the dictionary further goes on to explain the difference
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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
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precautions against harm. The work 'negligently', both in leg . al and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly . de P scriptive psychological expression like 'his mind was a blank'."
16. The Oxford Advanced Learner's Dictio na H ry, Sixth Edition defines 'Rash' as doing something that may no f t be sensible without first thinking about the possible results. o
17. In Badri Prasad Tiwari t vs. State I (1994) ACC 676, it was held by the Hon'ble Or u issa rHigh Court that in order to establish the offence either und o er Section 279 or 304-A IPC, the commission of rash and neglig C ent act has to be proved. The driving or riding on a public way, w hile offence under Section 304-A extends to any rash and negligent not falling short of culpable homicide. A distinction between
"ra g shne h ss" and "negligence" is that "rashness" conveys an idea of i doing a reckless act without considering any of its consequences,
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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:
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"4. Merely because the truck was being driven at a "hig . h speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the p . ro P secution could give any indication, even approximatel H y, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record m f aterial to establish as to 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 othe charge against an accused
always rests on the prosec t ution and there is a presumption of
innocence in favour of r the accused until the contrary is proved.
Criminality is no u t to be presumed, subject of course to some statutory e o xceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on
t he C record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is h evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the
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jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had H
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
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Andhra Pradesh, AIR 2000 SC 2511 wherein it has been held a . s under:- P
"10. A rash act is primarily an over hasty act. H It is op . posed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due car f e and caution. Culpable rashness lies in running the o risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and prope r r ca t re and precaution guarding against injury to the publ u ic generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable o and proper care and precaution." 21. Thi C s Court in State of Himachal Pradesh vs. Piar Chand, 2003 (2) Shim. L.C. 341 while dealing with the meaning of the express h ion "rashness" and "negligence" observed as under:-
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"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but H
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
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held that the provisions of 304-A IPC would apply to such acts whic . h are rash and negligent and are direc t cause of death of P another person. Relevant observations read thus:- .
"7. Section 304-A applies to cases wh f ere thHere is no intention 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 Seoctions 299 and 300 IPC. The
provision applies only r to t such acts which are rash and negligent and ar u e directly cause of death of another person. Negligence and rashness are essential elements under Section 302-A. Cu o lpable negligence lies in the failure to exercise reasonable and proper care and the extent of its r eas C onableness will always depend upon the circumstances of each case. Rashness means doing an act with the h consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty
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imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the H
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
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individual in particular, which having regard to all th . e circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopt . ed P .
9. The distinction has been very aptly pointed out by Holloway J. in these words : H
"Culpable rashness is acting with t f he consciousness that the mischievous and illegal consequences may follow, but with the hope that they wi t ll no t, oand often with the belief that the actor has taken r sufficient precautions to prevent their happening. u The imputability arises from acting despite the consciousness. Culpable negligence is acting without the cons o ciousness that the illegal and mischievous effect will follow, but In circumstances which show that the actor has not C 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 h
In re : Nidamorti Nagabhusanam 7 Mad. H.C.R. 119)"
i24g.Thus, the mere proof of accident in itself is not sufficient as the prosecution was required to establish beyond reasonable doubt
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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
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25. Thus, in light of the above stated reasons, discussion an . d also the facts and circumstances emerging in the case, I am P of the considered opinion that all the essential ingredients of Sec . tions 279 and 304-A IPC could not be established fully by H the prosecution. Though, the prosecution has been able to sh f ow that accident took place and two of the eye witnesses also sa o w the petitioner at the spot while driving his vehicle, but then r it h t as not been shown or proved on record that the petitioner at u the relevant time was driving his vehicle in a rash and negligent manner and had thereby caused the accident. In such circumstances, o I am of the considered opinion that the
prosecution ha C s not been able to establish the complicity of the petitione h r beyond reasonable doubt and it is more than settled that wh g ere there is a doubt created as per the circumstances and more i than one analogy is emerging apart from the story narrated by the H
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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