Ram Jiwan v. State of U. P. — 1972 DIGILAW 325 (ALL)

ORDER S.D. Khare, J. - This is an application in revision directed against an order dated 30th May, 1970, passed by the learned Second Temporary Civil and Sessions Judge, Allahabad, dismissing the appeal filed by the applicant against his conviction u/s 338 Indian Penal Code and a sentence of six months' rigorous imprisonment and a fine of Rs. 200/-. 2. The prosecution case, briefly stated, was that on 12th March, 1968, at about 4 p.m., a boy named Ashraf (PW 7), aged about 10 years, was playing on the right patri abutting the Grand Trunk Road near the house of one Masihuddin in Mohalla Dhumanganj when the car driven by the applicant struck him on the right leg. As a result of that impact with the bumper of the car the bone underneath the place of the injury got fractured. The boy also sustained an injury on his lip. The prosecution case was that the boy had been lifted by the bumper of the car and carried on a distance of about 8 to 10 paces?the distance actually covered by the car after the incident. 3. The injuries received by Ashraf (PW 7) were examined by Dr. S.C. Sri-vastava (PW 6). The doctor was of the opinion that the injuries sustained by victim of the incident could be due to an impact with the bumper and the victim's falling on the ground. In view of the fact that no other injuries had been sustained by Ashraf (PW 7) the doctor was definitely of the opinion that he could not have been dragged along with the bumper after the accident had taken place. 4. The prosecution examined four eye-witnesses of the occurrence in support of the prosecution case. One of them was Ashraf (PW 7), the victim of the accident. The other three witnesses were Babu, Masihuddin and Mustafa Husain (PWs 2 to 4). All of them stated that the car was being driven at a high speed and negligently when the boy (Ashraf) who was playing on the patri of the road, which was on a slightly higher level than the road, was caught by the bumper and carried upto some distance. All of them stated that the car was being driven at a high speed and negligently when the boy (Ashraf) who was playing on the patri of the road, which was on a slightly higher level than the road, was caught by the bumper and carried upto some distance. According to Babu and Masihuddin (PWs 2 and 3), the car stopped after moving upto a distance of 8 to 10 paces from the place of the incident, while according to Mustafa Husain the car could stop only after it had travelled upto a distance of 20 paces. 5. The applicant had pleaded not guilty. His defence was that he happened to be near the place of occurrence on his car, and after the occurrence had taken place the witnesses of the incident falsely accused him of having caused hurt to Ashraf by driving rashly and negligently. 6. Both the courts below have recorded a concurrent finding that the applicant was driving the car rashly and negligently and that there was no substance in the defence case. The applicant was therefore, convicted by both the courts below as mentioned earlier. 7. It has been argued by Mr. S.N. Mulla, learned Counsel for the applicant, that the defence of the applicant could not have been accepted, but from that circumstance alone he could not be held guilty of having committed an offence punishable u/s 338 IPC. His contention is that it was the duty of the prosecution to have established beyoned reasonable doubt that the applicant did any act so rashly or negligently as to endanger human life or personal safety of others. His contention is that the prosecution has failed in its duty to establish the prosecution case as against the applicant because: (1) from the prosecution evidence itself it appeared that the car could not have been driven rashly or negligently at the time of the occurrence, and (2) from the prosecution evidence itself it also appeared that the boy who was playing on the patri close to the road in the company of two other boys might have suddenly stepped down on the road to get struck by the bumper of the car. There is no evidence to show that the car had been driven over the patri abutting the road?the patri being at a higher level than the road. 8. There is no evidence to show that the car had been driven over the patri abutting the road?the patri being at a higher level than the road. 8. The learned Additional Sessions Judge has recorded certain findings of fact against the present applicant. In the first place he has held that the car was being driven at a very high speed, and, therefore, rashly and negligently. In the second place, he had held that the prosecution evidence that the boy had got struck up in the bumper and had been carried up to a distance of 8 to 10 paces could be true. 9. The second finding recorded by the learned Additional Sessions Judge is in conflict with the medical evidence led in the case. Dr. S.C Srivastava (PW6), who had examined the injuries of Ashraf, was clearly of the opinion that the boy could not have been dragged along with the bumper of the car after the accident had taken place. Ashraf must have been struck with the bumper of the car at the time the incident took place, and thereafter the car must have proceeded further leaving the victim at the place of the incident. The findings of fact recorded by the lower appellate court being against the medical evidence have to be disregarded. 10. Another finding of fact recorded by the court below that the car was being driven at a high speed is negatived by the prosecution evidence itself. Two of the prosecution witnesses, namely Babu and Masihuddin (PWs 2 and 3) stated that the applicant was able to stop his car within 8 or 10 paces of the place of the incident. It is quite evident that when the car could be stopped within such a short distance it could not have been driven at a high speed. 11. The car had overtaken a bullock cart which was travelling in the same direction and, therefore it had to go up to a place very close to the patri abutting the road. However, taking the car on the right up to that limit could not be said to be rash or negligent. In the circumstances of the case the boy Ashraf (PW 7) while playing on the patri of the road could have suddenly come in front of the car at the time the incident took place. In my opinion that probability cannot be ruled out. In the circumstances of the case the boy Ashraf (PW 7) while playing on the patri of the road could have suddenly come in front of the car at the time the incident took place. In my opinion that probability cannot be ruled out. 12. Simply because a person got injured when he came in contact with the bumper of the car of the applicant while he was driving the car on a high way cannot lead to any inference that the driver of the car must have been rash or negligent. The prosecution should have led evidence to establish those facts. That was not done. Some evidence was no doubt led to show that the car was being driven at a high speed. However, that too is negatived by the circumstance that the car could be stopped within eight or ten paces of the place of the accident (vide the statements made by Babu and Masihuddin). It was held in the case of Suleman Rehiman Mulani and Another Vs. State of Maharashtra, AIR 1968 SC 829 that the driver of a car may not be wholly liable u/s 304-A IPC unless it was established that there was direct nexus between the death of the person and the rash and negligent act of the accused. It was observed that simply because the evidence on the record revealed that the accused had been driving only for the last six months to a year and that he had only a learner's licence it could not be presumed in law that he did not know driving or had been rash and negligent. 13. It was observed by the Supreme Court in the case of Mahadeo Hari Lokre Vs. The State of Maharashtra, (1972) ACJ 185 that where a pedestrian suddenly crossed the 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. It was further observed that the bus driver cannot save accident however slowly he may be driving and, therefore, he cannot be held to be negligent in such a case. 14. In my opinion the applicant is entitled to benefit of doubt and acquittal. 15. The revision application is allowed. The conviction and sentence of the applicant u/s 338 IPC are set aside. He is on bail. He need not surrender. His bail bonds are discharged. 14. In my opinion the applicant is entitled to benefit of doubt and acquittal. 15. The revision application is allowed. The conviction and sentence of the applicant u/s 338 IPC are set aside. He is on bail. He need not surrender. His bail bonds are discharged. The fine, if already paid, shall be refunded.