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Himachal Pradesh High Court · body

2003 DIGILAW 170 (HP)

STATE OF HIMACHAL PRADESH v. MADAN LAL

2003-07-01

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—This appeal by the State is directed against the judgment dated 13.7.1998 passed by the learned Judicial Magistrate I-Class, Nurpur whereby the respondent/accused (hereafter referred to as the accused) has been acquitted of the accusations under Sections 279 and 304-A of the Indian Penal Code. 2. The case of prosecution, in brief, is that on 20.4.1993 at about 6.00 p.m. the accused while driving Truck No. HP-48-0174 in a rash and negligent manner on a national high way near Pucca Tiala, crushed to death a boy, namely, Atul, aged about five and-a-half years, who was carrying cattle feed and was on his way to his house. At the time of the occurrence, the deceased was accompanied by his parents Sardar Singh (PW-4) and his mother Kusum Lata (P.W. 5). One Ajay Kumar (PW-1) was also present on the spot. After having crushed the child under the wheels of the truck, the truck stopped at some distance from the place of occurrence. The occurrence was reported to the police by PW-1 vide his statement Ext. PW-1/A under Section 154 of the Code of Criminal Procedure on the basis of which FIR Ext. PW-2/A came into being at Police Station, Nurpur. Post mortem examination of the dead body of Atul was conducted in Civil Hospital Nurpur by Dr. A.K. Mahajan (PW-6) who found as many as 12 injuries on the body of the deceased and opined that the cause of death of the deceased was haemorrhage and shock due to head and abdominal injuries. The post mortem report issued by him is Ext. PW-6/A. The truck in question alongwith its Log Book was seized by the police vide memo. Ext. PW-l/B and was got mechanically examined and as per the report of the concerned mechanic Ext. PW-6/D, the truck was found in proper driving condition. The Investigating Officer (PW-7) prepared the site plan Ext. PW-7/B. Post occurrence photographs on the spot were taken by Jaswinder Singh (PW-3) negatives whereof are Exts. PW-3/B to PW-3/F and the photographs are Exts. PW-3/A to PW-3/C. On completion of the investigation, the Officer Incharge of Police Station, Nurpur submitted the charge sheet and the accused was tried on the accusations under Sections 279 and 304-A of the Indian Penal Code by the learned trial Magistrate. 3. To prove the accusations against the accused the prosecution examined 7 witnesses. PW-3/A to PW-3/C. On completion of the investigation, the Officer Incharge of Police Station, Nurpur submitted the charge sheet and the accused was tried on the accusations under Sections 279 and 304-A of the Indian Penal Code by the learned trial Magistrate. 3. To prove the accusations against the accused the prosecution examined 7 witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was recorded wherein he denied the prosecution case and claimed to be innocent. However, he did not lead any defence. 4. On consideration of the material on record, the learned trial Magistrate came to the conclusion that the accident did not occur because of the rash or negligent driving of the truck by the accused and accordingly acquitted the accused. Being aggrieved by the order of acquittal, the State has preferred the present appeal. 5. I have heard the learned Deputy Advocate General for the appellant State and the learned Counsel for the accused and have also gone through the record. 6. It was contended for the State that the accused was driving the truck on a public way at a high speed. He, however, failed to take necessary precautions to ensure that human life was not endangered by his act and caused death of a boy. Therefore, he is liable to be convicted and sentenced under Sections 279 and 304-A of the Indian Penal Code. 7. On the other hand the learned Counsel for the accused, while supporting the impugned judgment, contended that there is not even an iota of evidence to prove that the accused was rash and negligent in driving the truck in question. It was further contended that it is in the evidence of the prosecution witnesses that vehicles are plied on a national highway at a higher speed and the child abruptly came before the truck and got crushed. Therefore, no rash or negligent act can be attributed to the accused who has rightly been acquitted by the learned trial Magistrate. 8. In the case in hand it is not in dispute that at the relevant time the accused was driving the truck in question on Mandi-Pathankot national highway. It is also not in dispute that the deceased was crushed to death by the moving truck. 8. In the case in hand it is not in dispute that at the relevant time the accused was driving the truck in question on Mandi-Pathankot national highway. It is also not in dispute that the deceased was crushed to death by the moving truck. Therefore, the only question for determination in this case is whether the occurrence took place because of rash or/and negligent driving of the truck by the accused. 9. In State of H.P. v. Piar Chand (Cr. Appeal No. 109 of 2003, decided on 2.6.2003) this Court, while dealing with the meaning of the expression "rashness" and "negligence" held as follows:— "18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but 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 reashness 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." 10. As per the prosecution, the accused was driving the truck at a very high speed. It is so stated by Ajay Kumar (PW-1), Sardar Singh (PW-4) and Kusum Lata (PW-5). As per the evidence of PW-1, the speed of the truck at the relevant time was 50 to 60 km. per hour. It has not been suggested to PW-1 that the accused was plying the truck at a lesser speed. The defence of the accused as suggested to the material witnesses that the truck was being plied on a national highway where the speed of the vehicles is high. The accused in his statement has not controverted the allegations that he was driving the truck at a speed of 50 to 60 km. Thus, there is cogent, reliable and uncontroverted evidence on record that at the relevant time the truck was being driven by the accused at a high speed. 11. It may be pointed out that speed alone is not criteria to decide rashness or negligence on the part of a driver. The deciding factor, however, is the situation in which the accident occurs. 12. 11. It may be pointed out that speed alone is not criteria to decide rashness or negligence on the part of a driver. The deciding factor, however, is the situation in which the accident occurs. 12. The accident indisputably occurred at about 6.00 p.m., usually the time for the agriculturists to return home after finishing days jobs in their fields. There is unrebutted statement of PW-1 that on one side of the road are their fields from where they were going to their houses which are on the other side of the road. Thus, the time and place required plying of the vehicle at the spot at a lesser speed and with due care and caution to ensure that life of those who might be returning to their houses from the fields are not endangered. 13. It clearly emerges from the statements of PW-1 and PW-4 that before the occurrence of the accident, they and the deceased had already reached on the side of the national highway and had started crossing it when the accident occurred. 14. Ext. PW-7/B is the rough site plan of the place of occurrence. Mohinder Singh (PW-7), the then SHO/Investigating Officer, has stated that he had prepared this site plan in the presence of the eye-witnesses. The correctness of this plan is nowhere under challenge. As per plan Ext. PW-7/B, A is the road, E is the place where the truck struck the deceased and D is the spot where the dead body of the victim lay because of the impact of the collision and O is the place where the truck was finally stopped. It is evident on a bare look on Ext. PW-7/B that the road at the place of occurrence is wide and is straight on the side from which the truck was coming to the place of occurrence and the place E where the truck struck against the deceased, could be seen from a safe distance. Had the accused been driving the truck with due care and caution, he could see PW-1, PW-4 and the deceased from a safe distance and could apply the brakes which would have saved the life of the deceased, a child of about five and-a-half years. Had the accused been driving the truck with due care and caution, he could see PW-1, PW-4 and the deceased from a safe distance and could apply the brakes which would have saved the life of the deceased, a child of about five and-a-half years. The rashness in driving the truck by the accused is writ large in the undisputed fact that the collision occurred at point E and the impacts/ truck carried the child to some distance, i.e. to point D, and itself stopped at a further distance at point C Thus, the material on record clearly reveals that the accused was not only driving the truck at a high speed but had not taken due care and caution so as not to endanger human life which as per the situation at the time of occurrence, was expected by a prudent man. Thus, on the basis of the evidence on record, it is proved beyond reasonable doubt that the accused was driving the truck in question on a public way in a rash and negligent manner thereby endangering the human life and as a consequence of such driving a child of five and-a-half years was crushed to death. Therefore, findings of the learned trial Magistrate to the contrary are unsustainable. 15. As a result, this appeal is allowed and the impugned judgment acquitting the accused, is set aside. The accused is held guilty of the commission of offences punishable under Sections 279 and 304-A of the Indian Penal Code. 16. The occurrence took place more than 10 years before and since then the accused is under the stress and strain of investigation, trial and appeal. Therefore, some leniency in the matter of punishment to be awarded to the accused, will be fully justified. Therefore, taking a lenient view, the accused is sentenced to undergo simple imprisonment for three months and to pay fine of Rs. 1,000 and in default of payment of fine, to suffer further imprisonment for one month under Section 304-A of the Indian Penal Code and to pay fine of Rs. 1,000 and in default of payment of fine, to undergo imprisonment for one month. The accused is directed to surrender before the trial Court within four weeks failing which the trial Court to take steps according to law to arrest and commit the accused to prison to serve out the sentence awarded to him. 1,000 and in default of payment of fine, to undergo imprisonment for one month. The accused is directed to surrender before the trial Court within four weeks failing which the trial Court to take steps according to law to arrest and commit the accused to prison to serve out the sentence awarded to him. Appeal allowed.