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2004 DIGILAW 210 (HP)

Balbir Singh v. State Of Himachal Pradesh

2004-09-02

M.R.VERMA

body2004
JUDGMENT : M.R. Verma, J. This petition is directed against the judgment dated 23.6.2000 passed by the learned Sessions Judge, Kangra at Dharamshala whereby the appeal preferred by the petitioner/accused (hereafter referred to as ‘the accused) against the judgment dated 6.7.1999, passed by the learned Additional Chief Judicial Magistrate, Kangra, convicting and sentencing the accused under Sections 279, 337, 338 and 304-A of the Indian Penal Code, has been dismissed. 2. Brief facts, leading to the presentation of this petition are that on 18.7.1997 at about 8.30 p.m. informant Kuldip Kumar (PW-11) along with Gian Chand, Subhash Chand, Shyam Lal, Mehar Singh, Amar Singh, Jeet Singh, Balwant Singh, Duri Singh, Bir Singh, Raju, Madan Lai and Pritam Chand, after loading potatoes in Truck No. HP-40-1497 at village Baldhar, were travelling in the same Truck. Some of them were to reach their house in the nearby places and some of them were to go to Amritsar the destination of the truck. When the truck, which was driven by the accused, had gone a little ahead of the place of loading, because of rash speed of the truck, the accused could not control it and it rolled down off the road and struck against a mango tree. When this truck was falling off the ground, the accused jumped out of it and ran away. All the other occupants of the truck were injured. On hearing the cries of the injured occupants of the truck, so many persons came on the spot and removed the injured to CHC Nagrota where statement of the informant Ext. PW-11/A was recorded by ASI Gopal Dass (PW-12) on the basis of which FIR Ext. PW-12/B was recorded at Police Station Kangra and the investigation followed. In the accident Ashok Kumar, Juria Ram and Bir Singh died and other occupants, namely, Ajeet Singh, Balwant, Amar Singh, Kuldip Kumar, Kehar Singh, Gian Chand, Mehar Chand and Shyam Lal sustained injuries and one of the injuries each sustained by Balwant and Mehar Chand were also grievous and other injuries sustained by the occupants of the truck, those who survived, were simple. On investigation, the investigating agency found that there was no mechanical defect in the ill-fated truck and the accident occurred because of the rash and negligent driving thereof by the accused and accordingly a charge-sheet was submitted against the accused who came to be tried by the learned Additional Chief Judicial Magistrate, Kangra on the accusations under Sections 279, 337, 338, 304-A of the Indian Penal Code. 3. To prove the accusations against the accused, prosecution examined 12 witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein he denied rashness or negligence in driving the truck and claimed that three-wheeler came from the opposite side and when he was giving pass to that three-wheeler, Danga gave way leading to the accident and, thus, claimed to be innocent. The accused, however, did not lead any evidence in defence. 4. On the basis of the evidence on record, the learned trial Magistrate convicted the accused as aforesaid and sentenced him to simple imprisonment for two years and fine Rs. 500/- and in default of payment of fine to suffer simple imprisonment for three months under Section 304-A, of the Indian Penal Code, simple imprisonment for six months and fine of Rs.1000/- and in default of payment of fine to suffer simple imprisonment for two months under Section 338 of the Indian Penal Code, simple imprisonment for three months and fine Rs. 500/- and in default of payment of fine to under simple imprisonment for one month under Section 337 of the Indian Penal Code, and to pay fine Rs. 500 and in default of payment of fine to undergo simple imprisonment for one month under Section 279 of the Indian Penal Code. Feeling aggrieved, the accused preferred an appeal in the court of the learned Sessions Judge, kangra which was dismissed vide the impugned judgment. Hence, this petition. 5. Since none put in appearance for the accused at the time of hearing despite the case having been duly notified for hearing, therefore, I could not have the advantage of hearing anyone for the accused. However, arguments on behalf of the respondent-State were heard and the learned Deputy Advocate General had taken me through the evidence on record. 6. 5. Since none put in appearance for the accused at the time of hearing despite the case having been duly notified for hearing, therefore, I could not have the advantage of hearing anyone for the accused. However, arguments on behalf of the respondent-State were heard and the learned Deputy Advocate General had taken me through the evidence on record. 6. It was not disputed by the accused at the trial or in appeal nor has he disputed by the averments in this petition that the truck in question which was driven by him at the relevant time met with an accident in which three persons died and eight persons sustained injuries. Two of them sustained grievous injuries and others sustained simple injuries. The defence of the accused throughout had been that he was not rash or negligent in driving the truck and the accident occurred because the retaining wall of the road collapsed and the truck rolled off the road. Therefore, the only question for determination in this petition is whether the accident in question occurred because of the collapsing of the wall or the accused was rash or/negligent in driving the truck. 7. 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 such injury and without knowledge that injury would be caused. The act must be done with rashness or indifference as to the consequences. Thus, in rashness the person does an act which he is bound to forbear and breaks a negative duty. Criminal negligence is 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. Thus, in case of negligence a person does not perform an act to which he is obliged and breaks a positive duty. The test to judge the culpability, therefore, is whether the accident could have been avoided by the accused if he had performed his ‘negative' or ‘positive' duty with care and diligence which a cautious person would have done in similar circumstances. Thus, the circumstances and the situation under which the accident occurred, constitute important factors to decide whether the accused was rash or/and negligent in driving the vehicle causing the accident. 8. Thus, the circumstances and the situation under which the accident occurred, constitute important factors to decide whether the accused was rash or/and negligent in driving the vehicle causing the accident. 8. It may also be pointed out that driving at a high speed by itself is not sufficient to hold that the driver was rash or negligent in driving the vehicle except when the vehicle is driven at a high speed at such places where the speed limit is prescribed, the area by the side of the road is populated and there is human traffic or otherwise crowded places. The mere fact that death occurred or injuries were sustained is also not by itself sufficient to hold the accused guilty of the commission of an offence. To constitute the offences under Sections 279, 337, 338 and 304-A I.P.C. rashness or negligence so as to endanger human life is the essential ingredient. 9. In the case in hand, Amar Singh (PW-2) and Mehar Singh (PW-7) two of the injured/occupants of the truck, had not supported the prosecution version that the accused was driving the truck in a rash or negligent manner or at a high speed. None of witnesses, though eye-witnesses of the occurrence and their statements, admittedly having been recorded during the investigation under Section 161, Cr.P.C., were got declared hostile by the prosecution, but their version exculpating the accused of the alleged rash or negligent driving was accepted as such, which raises serious doubts about the correctness of the prosecution version. 10. Balwant Singh (PW-1) in his examination-in-chief has stated that the truck was at a high speed. However, in his cross-examination he has stated that he is not aware whether the truck was at a slow or high speed because it was dark at that time. He is not in a position to deny that at the place where the truck rolled off the road, the retaining wall collapsed which resulted in the accident. The statement of this witness, thus, is self-contradictory and self-destroying. 11. Gian Chand (PW-6) and Kuldip Kumar (PW-11) in their examination-in-chief have stated that the truck was driven by the accused at a high (Tej) speed which resulted in the accident. It is, however, their version that it was rainy season and at the place of the occurrence there was a Kacha Danga (retaining wall). 11. Gian Chand (PW-6) and Kuldip Kumar (PW-11) in their examination-in-chief have stated that the truck was driven by the accused at a high (Tej) speed which resulted in the accident. It is, however, their version that it was rainy season and at the place of the occurrence there was a Kacha Danga (retaining wall). It is clearly and unambiguously admitted by PW-12 that the truck rolled down because of the collapsing of the Danga existence whereof is admitted even by PW-6. 12. It is admitted by all the material prosecution witnesses that it was rainy season. It is a matter of common knowledge that in rainy season the retraining walls and sides of the road may collapse. Therefore, statement of PW-12 that the accident occurred because of collapsing of the retaining wail the Kacha portion of road, could not have been ignored. More over his statement in this regard is corroborated by PW-7 and Bishan Dass (PW-9). The former is admittedly an eye-witness of the occurrence and one of the injured and the latter visited the spot after the accident and took photographs of the place of the occurrence etc. 13. As per the prosecution version there were 11 occupants of the truck other than the truck crew. Three of them died. Out of the eight surviving injured, only four have been examined and remaining four have not been produced. Keeping in view the nature of evidence of the eye-witnesses produced by the prosecution an inference, adverse to the case of prosecution, can be readily down from non-production of the other eye-witnesses. 14. The defence of the accused is that he was not rash or negligent in driving the truck and the accident occurred because the retaining wall of the road collapsed when he was giving a pass to a three-wheeler and the truck rolled off the road because of the collapsing of the Danga (retaining wall). 15. As per the contents of the site map Ext. PW-12/D, the width of the road on the spot was 7.5. feet metalled road, 2 feet Kacha on western side and one foot Kacha on eastern side, on which side the truck rolled down. Thus, the road at the spot was not too wide. The photograph Ext. P-1 depicts the collapsed portion of the road and the truck in question just below it, photograph Ext. feet metalled road, 2 feet Kacha on western side and one foot Kacha on eastern side, on which side the truck rolled down. Thus, the road at the spot was not too wide. The photograph Ext. P-1 depicts the collapsed portion of the road and the truck in question just below it, photograph Ext. P-3 depicts the debris of the collapsed portion of the Danga and the truck. It is not the case of the prosecution that the retaining wall of the road at the place of accident had collapsed before or after the accident. 16. It may be pointed out that the material witnesses of the prosecution are the injured persons. There is no reason for two of them not supporting the prosecution version about the manner in which the accused was driving the truck and some of them attributing the accident to the collapsing of the retaining wall. 17. In view of the above discussion, it is evident that the courts below totally ignored the exculpatory admissions made by the material prosecution witnesses and the act of the prosecution in accepting the statements of PW-2 and PW-7 as aforesaid which has led to the illegal and unsustainable conviction and sentence of the accused. 18. As a result, this petition is allowed. The impugned conviction and sentence are set aside and the accused is acquitted of the accusations against him. Fine, if recovered, be refunded to the accused. The bail bonds furnished by the accused are discharged.