Research › Search › Judgment

Jharkhand High Court · body

2001 DIGILAW 105 (JHR)

Lakshman Das v. State

2001-02-08

D.N.PRASAD

body2001
JUDGMENT Deoki Nandan Prasad, J. 1. This criminal revision application is directed against the order dated 21.7.1993 passed by the 4th Additional Sessions Judge, Singhbhum (West) at Chaibasa in Criminal Appeal No. 35/92 whereby and whereunder the learned additional Sessions Judge confirmed the judgment of conviction and sentence passed by the Judicial Magistrate, 1st Class, Chaibasa in connection with GR No. 346 of 1983/ Muffasil 69/83. 2. The prosecution case in brief, as alleged is that the informant along with his elder mother was going to Bokaroto- Chaibasa and he along with his mother boarded in Anpurna bus at Chaibasa at about 4.15 a.m. There were 18 passengers including driver, cleaner, Laxman Das the petitioner was the driver of the said bus. When the bus reached near the bridge situated at Kujju river at 4.45 a.m. the informant saw that water was flowing over the bridge. The informant and other passengers made objection with the driver for not taking the bus on the bridge as the water is flowing over the bridge but the driver did not respond the request and he drove the bus recklessly and as soon as the bus reached on the bridge, the right wheel of the bus slipped by the side of the bridge due to which the bus stopped there for about 20 minutes. It is further alleged that some of the passengers took shelter on the roof of the bus but there was heavy current of water, as a result of which the bus turned around and fallen in the river. Some of the passengers also jumped in the river but his mother fell down from the bus and she died: It is also alleged that some of the passengers had flown in the current of the river. All the belongings of the informant and other passengers also flown in the river. Accordingly the first information report was lodged and on the basis of which the police investigated the case and submitted charge-sheet. 3. The witnesses were examined in the Court below and the learned Magistrate convicted the petitioner for the offence under Sections 279/304A of the Indian Penal Code and sentenced him to under go Simple Imprisonment for two years under Section 304A and six months under Section 279 of the Indian Penal Code. However, both the sentences are ordered to run concurrently. 4. However, both the sentences are ordered to run concurrently. 4. Against the aforesaid judgment of conviction and sentence, the petitioner preferred appeal before the Sessions Judge which was also dismissed by an order dated 21.7.1995. 5. On being aggrieved by the judgment of the appellate Court, this revision application has been preferred on the ground that the learned Magistrate as well as the appellate Court has not considered the evidence on record properly as there was no negligence on the part of the petitioner. It is also stated that the situation was beyond control of the petitioner and as such the petitioner cannot be held responsible for the offence. It is also alleged that it is necessary that the death must have been the direct result of rash for negligent act of the accused but in the instant case, act is different as the death was not occurred due to direct result of rash for negligent act of the petitioner and as such the order of conviction and sentence is fit to be set aside. 6. Learned counsel appearing on behalf of the petitioner at the very out set submitted that there was no negligence on the part of the petitioner as the bus remained for about 20 minutes on the bridge when all of a sudden water came in the river due to which one of the wheels slipped as a result of which the bus fell down. It is also submitted that flood came out after 20 minutes and there is no finding as regards to the offence under Section 304A of the Indian Penal Code. Learned counsel for the petitioner also relied upon a case of S.N. Hussain others v. State of Andhra Pradesh, reported in AIR 1972 SC page 685. On the other hand, the learned counsel appearing on behalf of the opposite party No. 2 contended before me that the petitioner; who was the driver of the said bus at the relevant time, was rash and negligent in driving the bus as he was forbidden by the passengers but even then driver did not respond the request. It is further argued that it was the duty of the driver to take the bus safely and also to reach to the destination properly and as such there is no illegality in the impugned order. It is further argued that it was the duty of the driver to take the bus safely and also to reach to the destination properly and as such there is no illegality in the impugned order. Obviously the petitioner/accused was the driver of the bus on the fateful date as well as there is no dispute about the occurrence taken place and in the said occurrence, the mother of the informant died. From the post-mortem report, it is clear that the deceased Sabitri Devi died due to asphyxia. The doctor also bound water in the lungs and ab-doman of the deceased. Thus, there is no denial about the occurrence. From the evidence of PWs, it is further evident that when the bus reached near the bridge, the water was flowing over the bridge and the pillars of the bridge were totally submerged in the water. It is also clear from the evidence of PWs 1 and 9 that the passengers, who were sitting in the bus, had forbade the driver/petitioner from taking the bus on the bridge but in spite of their request, the driver did not stop the bus and took the bus on the bridge in order to cross the bridge. Thus, it is apparent that in spite of warning given by the passengers, the driver/petitioner took the bus on the bridge even then the water was flowing over the bridge. The driver was trying to cross the bridge by taking risk and he was knowing that water is flowing over the bridge and that part of his action will amount to negligence. Even if, the flood all of sudden came after 20 minutes but the bus stopped in the middle of the bridge due to flowing of water over the bridge as a result of which one of the wheels slipped and the bus turteled and fell down in the river causing the death of the mother of the informant. 7. Even if, the flood all of sudden came after 20 minutes but the bus stopped in the middle of the bridge due to flowing of water over the bridge as a result of which one of the wheels slipped and the bus turteled and fell down in the river causing the death of the mother of the informant. 7. In the case of S.N. Hussain v. State of Andhra Pradesh, (supra) it appears that the bus driver received warning from the passengers in the bus that the train (goods) was coming only when he was already on the railway track after crossing the level crossing gate which was left open and there was a gateman who was to be conscious for keeping the gate opened and inviting the-vehicle to pass when there is no signal for crossing any train or goods train. Where the gate is open and there is no train scheduled to pass at the time, the driver would be justified in driving his vehicle through the level crossing. But in the case at hand, the driver who was driving the bus, had already taken the bus on the bridge when the water was flowing above the bridge. The presence of gate man at that place does not arise. Thus the facts of the instant case is quite distinguishable from the facts of S.N. Hussains case. In the instant case the passengers were also forbiding the driver not to cross the bridge when the water was flowing from upper level of the bridge but in spite of warning the petitioner/ driver took the bus to the bridge where the bus stopped and one of the wheels slipped due to rush of water. The driver was knowing about flowing of water above the bridge at the relevant time and as such he should have stopped the vehicle and should have not taken the bus on the bridge. By taking the bus on the bridge at the time of flowing water in spite of warning by the passengers itself goes to establish the negligence and rack-lessness on the part of the accused/petitioner. Had he taken precaution by not taking the bus on the bridge, such occurrence could have easily been averted. There is no doubt that the mother of the informant Sabitri Devi died due to said accident. Had he taken precaution by not taking the bus on the bridge, such occurrence could have easily been averted. There is no doubt that the mother of the informant Sabitri Devi died due to said accident. Thus, it is evident that the prosecution has fully established the charges against the petitioner/accused and the lower Court as well as the appellate Court has rightly convicted and sentenced the petitioner. 8. In the result, the concurrent findings of both Courts do not require to be interfered with. Thus, I do not find any merit in this revision application which is accordingly dismissed. 9. Revision application dismissed: