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2005 DIGILAW 1128 (PNJ)

Union Territory Chandigarh v. Geja Singh

2005-10-26

RAJIVE BHALLA

body2005
Judgment Rajive Bhalla, J. 1. By way of the present appeal, the Union Territory of Chandigarh, impugnes the order of the Judicial Magistrate, Ist Class, Chandigarh dated 22.4.1988, acquitting the represent of the charges under Sections 279/304-A of IPC. A factual narrative of the case would be appropriate. 2. On 28.2.1986, at about 2.15 PM, Ravinder Kaur D/o Amrik Singh, PW-1, lodged a report Ex. PA with the police. She and her friend Rupinder Kaur (the deceased) were returning from college, riding separate bicycles. Rupinder Kaur was a little ahead. When they approached the traffic round about of Sectors 26/27/7/19, a speeding truck came from behind and struck Rupinder Kaurs cycle causing her to fall down. She was run over by rear wheel of the truck. The truck driver fled from the scene of the accident but the complainant was able to note down the number of the truck. A police van arrived immediately. The complainant narrated the entire occurrence. The truck was apprehended and the driver brought to the place of occurrence. Rupinder Kaur was rushed to the hospital, where she was declared dead. The respondent was charged with offences under Sections 279/304-A of IPC and upon pleading not guilty of the offences, claimed trial. 3. The prosecution led its evidence in the shape of the statement of Ravinder Kaur, eye witness, Jaspal Singh Head Constable PW-2 and Dr. S.K. Garg, PW-3, who conducted the postmortem. The postmortem report was exhibited as Ex. PB, the site plan of the place of occurrence Ex. PE, recovery memos of cycle and the truck Ex. PW-7/A and Ex. PW-7/B and photographs Ex. PI to PO. After conclusion of the evidence, the respondents statement was recorded under Section 313 of Cr. P.C. After hearing arguments addressed by both the parties, the trial Court upon a perusal of the evidence led by the prosecution acquitted the respondent, hence the present appeal filed by the U.T. Chandigarh. 4. Counsel for the appellant contends that the findings returned by the trial Court, acquitting the respondent, are factually incorrect, based upon an erroneous appreciation of evidence and law and have thus, resulted in a miscarriage of justice, thus, warranting the setting aside of the judgment. It is further argued that the reasons set forth by the trial Court for acquitting the respondent are inherently unsound and legally unsustainable. It is further argued that the reasons set forth by the trial Court for acquitting the respondent are inherently unsound and legally unsustainable. An appraisal of the evidence, adduced by the prosecution could lead to only one conclusion, namely; the truck was being driven at a high speed and in a rash and negligent manner. The learned trial Court acquitted the respondent on two grounds firstly that PW-1 did not depose that the truck was being in a rash and negligent manner and secondly a truck could not be driven at a high speed at the place of accident. 5. It is further contended that the learned trial Court, while appraising the evidence lost sight of a crucial aspect of the case, namely; that the truck came from behind, at a very high speed and struck Rupinder Kaur, as a result whereof, she was run over by the rear wheel resulting in her death. Ravinder Kaur PW-1 also deposed that when truck struck the cycle, the cleaner of the truck pushed the deceaseds head, whereupon she fell down, causing the rear wheel of the truck to run over the deceased. 6. It is further argued, by counsel for the appellant that a perusal of the statement, of the sole eye witness, to the effect that the truck was being driven at a very high speed, at a busy round about, the truck struck the cycle and ran over the deceased, are sufficient to conclude the commission of a rash and negligent act, sufficient to cause death and, therefore, acquittal of the respondent on the ground that the eye witness had not deposed that the truck was being driven in a rash and negligent manner is an irrational and perverse appreciation of the evidence and an erroneous application of law. 7. Counsel for the respondent on the other hand contends that the learned trial Court, rightly acquitted the respondent. It is contended that in order to successfully bring home a charge under Section 304-A, the prosecution was required to satisfactorily establish, that the driving was so grossly rash and negligent as to attract criminal culpability. The eye witness PW-1 merely deposed that the truck was being driven at a high speed. She failed to depose that the truck was being driven in a rash and negligent manner. The eye witness PW-1 merely deposed that the truck was being driven at a high speed. She failed to depose that the truck was being driven in a rash and negligent manner. Mere driving of a truck at a high speed, would not raise a presumption of a rash and/or negligent act and, therefore, the learned trial Court rightly held that in the absence of any evidence that the truck was being driven in a rash and negligent manner, the respondent was entitled to acquittal. It is further argued that the learned trial Court rightly held that at the site of the accident, namely, the round about of Sectors 7/19/26/27, it was impossible to drive at a high speed. The impugned judgment does not merit interference and, therefore, the present appeal deserves to be dismissed. 8. I have heard learned counsel for the parties and perused the record. 9. The appellant has been charged with offences under Section 279/304-A IPC. Section 279 of the read as follows :- "279. Rash driving or riding on a public way - Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both". 10. For an offence to be punishable under Section 279, the prosecution is required to establish that the vehicle was being driven on a public way and that the driving was so rash and negligent as to endanger human life, or to be likely to cause hurt or injury to any other person. 11. Section 304-A of IPC, provides punishment for causing the death of any person, while doing any rash or negligent act not amounting to culpable homicide. Section 304-A IPC, envisages punishment, for the death of a person, caused by a rash and negligent act, where such act does not amount to culpable homicide. 12. Negligence, by its very definition presumes the absence of such care, skill and diligence, as it is the duty of a person to bring to the performance of a task, which he is said to have performed. 12. Negligence, by its very definition presumes the absence of such care, skill and diligence, as it is the duty of a person to bring to the performance of a task, which he is said to have performed. It is the failure to do something, which a reasonably prudent man guided by considerations that regulate the conduct of prudent and reasonable man would not fail to do. An alleged act of negligence in order to attract the provisions of Section 279 of the IPC has to be negligence coupled with recklessness without consideration for the consequences of the act. The relationship between speed and negligence would depend upon the place, the time, the nature of the traffic and such other circumstances, as may exist at the site of the accident. It is not necessary that a person, driving at a slow speed cannot commit a rash and negligent act. So also fast speed cannot be the sole deciding factor, in inferring negligence. High speed, on an empty road, would obviously not be rash and negligent but the converse may be true on a crowded road, more so, when vehicles are driven at high speeds around traffic rotaries (round abouts). In such circumstances, the driver of a vehicle is aware that driving of a vehicle at a high speed, in the vicinity of or around a traffic rotary, where traffic merges from different directions, would not be free from danger. The driver is expected to be cautious, and proceed carefully, at a slow speed to avoid accidents, A traffic rotary has four streams of entering and exiting traffic, which merges around the traffic rotary. Driving of a vehicle at a high speed while approaching or driving around a traffic rotary, would depending upon the facts and circumstances of each case, be a rash and negligent act referred to in Section 279 of IPC. 13. No single factor would determine or absolve and accused of a charge of a rash and negligent act. The totality of the circumstances namely; the speed of the vehicle, the manner in which, it was being driven, the width of the road, the nature of the site of the accident, intensity of the traffic, the attempt, if any, to over take other vehicles, driving on the wrong side of the etc. are circumstances that would have to be taken into consideration. are circumstances that would have to be taken into consideration. Reference to the observations of the Honble Supreme Court in Jacob Mathew v. State of Punjab and another, 2005(3) RCR(Cri.) 836 : 2005(2) Apex Criminal 649 SC would be appropriate : "Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in Civil Law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal Court consists of criminal negligence". In R. v. Lawerence, 1981(1) All ER 974 (HL), Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell, 1981(1) All ER 961 (HL) and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being "subjective" or "objective", and said "Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting recklessly if, before doing the act, he either fails to give any thought to the possibility of there being any such risk, or, having recognized that there was suck risk, he nevertheless goes on to do it". The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimizing violations, may be motivated by thrill- seeking. These are clearly reckless. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with the recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions (1937) A.C. 576, stated "simple lack of care such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established". Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. Lord Porter said in his speech in the same case - "A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability (Charleworth & Percy, ibid, Para 1.13) Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. It has been held that while negligence is an 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 and reasonable man would not do; criminal negligence is the gross and culpable negligent or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arise, it was the imperative duty of the accused person to have adopted". 14 Applying the aforesaid rule of law to the facts of the present case, I am of the considered opinion that the judgment of the learned trial Court acquitting the respondent is unwarranted and a miscarriage of justice. While acquitting the respondent, the learned trial Court relied upon two facts namely; the absence of the words in the statement of PW-1, that the truck was being driven in rash and negligent manner and that a truck could not have been driven at a high speed at the traffic rotary concerned. 15. The trial Court has committed a gross error while appreciating the evidence on record. A witness deposing as to the commission of a rash and negligent act, may not use the words that the act complained of was rash or negligent. The use of the aforementioned words though desirable is not necessary. A rash and negligent act has to be inferred from an appraisal of the entire evidence adduced by the prosecution. No single act can be said to constitute a rash and negligent act. Each case would turn on its own peculiar facts. No cast iron formula can be set down as to what acts would or would not constitute a rash and negligent act to attract culpability under the IPC. 16. The learned trial Court, thus, committed a serious error in law by holding that the absence of the words, rash and negligent, in the deposition of PW-1 would lead to a conclusion that the truck was not being driven in a rash and negligent manner. 17. The eye witness PW-1, a young girl. was cycling behind the deceased. 16. The learned trial Court, thus, committed a serious error in law by holding that the absence of the words, rash and negligent, in the deposition of PW-1 would lead to a conclusion that the truck was not being driven in a rash and negligent manner. 17. The eye witness PW-1, a young girl. was cycling behind the deceased. She deposed in no uncertain terms that the truck while approaching the traffic rotary, was driven at a high speed, came from behind and its right side struck the deceaseds cycle. The cleaner travelling in the truck pushed the deceaseds head causing her to fall, whereupon the rear wheel of the truck ran over the deceased. The facts that the truck was being at a high speed, during the day time, at a busy traffic rotary, which facts have been accepted by the trail Court, are in themselves sufficient to establish the commission of a rash and negligent act, sufficient to attract the provisions of Sections 279 and 304-A of IPC. The traffic rotary in question, is at a congested traffic intersection. Traffic from four different directions merges, at this traffic rotary and then proceeds in different directions. While approaching the traffic rotary, every automobile driver is required to reduce his speed and exercise reasonable care and caution to guard against injury either to the public in general or an individual in particular. It is imperative for a driver approaching a traffic rotary to exercise due caution. The fact that the truck was being driven at a high speed, at a busy traffic rotary, came from behind, and struck the cycle, being driven by the deceased, in my considered opinion, satisfies the test of gross and culpable negligence as would warrant the conviction of the respondent under Sections 279 and 304-A of IPC. In my considered opinion from a perusal of the facts and circumstances of the present case, more particularly the deposition of PW-1, the sole eye witness, no two opinions could be arrived at but that the respondent committed such a gross act of negligence as to be punishable under Sections 279 & 304-A of IPC and, therefore, the learned trial Court committed a serious illegality in acquitting the respondent. 18. 18. Another factor taken into consideration by the trial Court, while acquitting the respondent, was that a vehicle could not be driven at a high speed at the traffic rotary concerned. This, in my considered opinion, is a perverse appreciation of evidence on record. The facts of the present case are that the truck was being driven at a high speed, at a very busy traffic rotary. The learned trail Court had no jurisdiction to discard this fact and hold that a truck could not have been driven at a high speed, at the traffic rotary concerned. The learned trial Court had no jurisdiction to supplant its own version of the incident, when the deposition of PW-1 that the truck was being driven at a high speed, as it entered the traffic rotary, remained unimpeached. The learned trial Court dealt with the matter in a causal and perfunctory manner. In my considered opinion, the judgment is liable to be set aside. 19. The deposition of PW-1 as to the manner, in which the truck was being driven, the nature of the accident, the site plan Ex. PE, and the photographs Ex. PI to PO, in my considered opinion, are sufficient to hold that the truck was being driven in a grossly rash and negligent manner so as to attract the provisions of Sections 279 and 304-A of IPC. Consequently, in view of what has been stated above, the present appeal is allowed and the judgment of the learned trial Court is set aside. 20. The prosecution has been able to establish the guilt of the respondent under Sections 279 and 304-A of IPC. In view of what has been stated above, the appeal is allowed, the judgment and order of the learned trial Court, acquitting the respondent is set aside and the respondent is convicted for the commission of an offence under Sections 279 and 304-A of IPC. 21. The accident took place on 28.2.1986. The respondent Geja Singh was acquitted vide judgment dated 22.4.1988. The appeal has been pending since the year 1988. It is almost 20 years from the dated of the accident. The sentence prescribed under Section 279 of IPC is imprisonment of either description for a term, which may extend to six month or with fine, which may extend to Rs. 1,000/- or with both. The appeal has been pending since the year 1988. It is almost 20 years from the dated of the accident. The sentence prescribed under Section 279 of IPC is imprisonment of either description for a term, which may extend to six month or with fine, which may extend to Rs. 1,000/- or with both. The sentence prescribed under Section 304-A or IPC is imprisonment of either description for a term, which may extend to two years or with fine or with both. Taking into consideration the fact that the accident occurred about 20 years ago, I am of the considered view that the interest of justice would be served if the respondent is sentenced under Section 279 of the IPC to rigorous imprisonment of six months and a fine of Rs. 1,000/-. In default of payment of fine, rigorous imprisonment for a further period of one month. Under Section 304-A of IPC, the respondent is sentenced to rigorous imprisonment of six months and a fine of Rs. 50,000/-, to be paid to the family of the deceased. In default of payment of fine, to further undergo rigorous imprisonment for a period of three months. I order accordingly. Both sentences shall run concurrently. The respondent be taken into custody forthwith, to undergo the sentence awarded herein before.