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2004 DIGILAW 217 (HP)

Sucha Singh v. State of Himachal Pradesh

2004-09-09

K.C.SOOD

body2004
JUDGMENT : K.C. Sood, J. Under Challenge in this petition, is the conviction and sentence imposed upon the petitioner Sucha Singh, hereinafter referred to as "the accused", recorded by the learned Judicial Magistrate, 1st Class (II), Dharamshala, District Kangra, dated August 17, 2000, for offences punishable under Sections 279, 304-A of the Indian Penal Code and Section 184 of the Motor Vehicles Act, as affirmed by the learned Additional Sessions Judge (1), Kangra at Dharamshala iated February 15, 2002 by the impugned judgment. 2. The case of the prosecution was: On July 2, 1999 accused was driving Truck No. DIL 3477 and caused an accident near Nawana Pull, as a result whereof an eight years old boy was crushed under the rear tyre of the truck. The trial court on appreciation of the evidence held that the accident took place on a curve, when the truck was on ascent. To come to this conclusion, the learned trial court relied upon the evidence of Surinder Kumar (PW-1) and Girdhari Lal (PW2). 3. Mr. Ashwani Sharma, learned counsel for the petitioner submits that the conviction recorded by the learned trial Magistrate, as affirmed by the learned Additional Sessions Judge, is dehors the evidence. He submits that there is no evidence which may even remotely suggest that the accident occurred due to rash and negligent driving of the truck by the accused. 4. In order to secure conviction, the prosecution is obliged to prove that the accused was driving the vehicle in rash or negligent manner. Now rash act is an over-hasty act with a hope that evil consequences may not follow. Whereas in case of negligence, a party breaks a positive duty. In other words, he fails to do an act which he otherwise is obliged to perform. In rashness, he violats a negatives duty. 5. Rashness has been defined to mean where an offender is aware of the consequences of the act but hopes or assumes that those consequences will not follow. Negligence is breach of a duty caused by the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent or reasonable man would not do. 6. In the present case, the evidence on record does not suggest any rash or negligent driving on the part of the accused. 6. In the present case, the evidence on record does not suggest any rash or negligent driving on the part of the accused. Surinder Kumar (PW1) admittedly an interested witness being maternal uncle of the deceased. It is his evidence that he and Girdhari Lal were engaged in talks when offending truck came from Chamunda side in a high speed and crushed the boy who was coming from School under the rear tyre of the truck. Both Surinder Kumar and Girdhari Lal (PW2) rush (sic-rushed)to the spot. It is admitted position and this witness admits in his cross examination that the truck was loaded and was going up hill. It is his evidence that front part of the truck had passed when the boy came from the School and hit him with the rear tyre. To a similar effect is the evidence of Girdhari Lal (PW2). According to him when the accident took place, the School had closed for the day. A boy who was coming from School came under the left side of the wheel of the truck. A perusal of the spot map Exhibit PW8/A shows that the truck was uphill. The boy admittedly came from the left side of the road and was crushed under the rear left wheel. It is not the case of the prosecution that the boy was standing on the side of the road when truck passed him and he was crushed under the rear tyre. The only possibility is that boy came running from the School unmindful of the truck gong uphill struck against the truck and came under the rear tyre of the wheel and got crushed. This apart, these two witnesses could not have seen the accident. It is the evidence of Surinder Kumar (PW1) that he and Girdhari Lal were engaged in talks when the truck driven at a high speed came and crushed the boy who was coming from the school. It is his further evidence that they saw this accident from 60 feet. The evidence of Girdhari Lal is that they saw the accident from about 40 to 45 mtrs. Where he and Surinder Kumar were engaged in talks. It is not clear whether they were standing on the right or left side of the road. It is his further evidence that they saw this accident from 60 feet. The evidence of Girdhari Lal is that they saw the accident from about 40 to 45 mtrs. Where he and Surinder Kumar were engaged in talks. It is not clear whether they were standing on the right or left side of the road. If they were standing on the right side of the road, they obviously could not have seen the occurrence but otherwise also, it was difficult to make out from a distance of 40 to 45 mtrs. As to how precisely the boy came under the rear left wheel of the truck. 7. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own pre occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened and by that time accident had already taken place. It is seldom that a person may be looking to the direction of the accident and be in a position to see and later describe the sequence of events in which the accident occurred 8. The defence of the accused in cross-examination as well as in his statement under Section 313 of the Code of Criminal Procedure was that he was driving the truck slowly as it was loaded truck going uphill and, therefore, speed of the truck was very slow, a sheep hit the deceased as a result whereof the boy fell under the rear tyre of the truck. 9. Ordinarily, the burden of proving that the vehicle was being driven rashly and negligently lay on the prosecution. In the present case, as noticed above, the toy who was coming from the school hit the truck near the left rear wheel of the -.ruck and was crushed under it. The Driver, in any event, could not have seen the toy coming from the school having passed the point of accident. In the present case, as noticed above, the toy who was coming from the school hit the truck near the left rear wheel of the -.ruck and was crushed under it. The Driver, in any event, could not have seen the toy coming from the school having passed the point of accident. Merely because an accidental death is caused by a person may be even due to error of judgment, the Driver cannot be held to be guilty of rash or negligent driving without there being any evidence that he was conscious of the risk and evil consequences which could follow by his driving. 10. In the absence of any positive evidence of rash and negligence in the resent case, the mere fact that the boy came and crushed would not lead to the conclusion that the Driver was driving the vehicle in a rash or negligent manner. In he present case, both the trial court and the Appellate Court based the conviction m assumptions and conjectures. They were swayed with the fact that the deceased boy was crushed under rear left wheel of the truck and concluded that such accident occurred due to rash and negligent driving of the accused. 11. The evidence on record including spot map does not show any rash or negligent driving on the part of the accused. 12. Before concluding, I may notice that this court in its revisional jurisdiction under Section 397 of the Code of Criminal Procedure will not interfere unless miscarriage of justice has taken place by the judgment of the lower court. It is the duty of the High Court to satisfy itself about the correctness of any finding, sentence r order of any inferior court. It is true that this court will not re-appreciate the evidence to substitute its own views or conclusion on the basis of evidence but when there is manifest injustice, the court will not hesitate to interfere when the conviction, though recorded concurrently, is dehors the evidence. 13. In result, allow the petition. The conviction and sentence of the accused as recorded by the learned trial court and affirmed by the learned Additional Sessions Judge Kangra at Dharamshala by his impugned judgment is aside. 14. The accused stands acquitted. His bail bonds are discharged. Fine if realized, shall be refunded back to the accused.