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Himachal Pradesh High Court · body

2016 DIGILAW 874 (HP)

Bhupinder Sharma v. State of H. P.

2016-05-20

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. The present revision petition filed under Section 397 of the Code of Criminal Procedure is directed against the judgment passed by the learned Additional Sessions Judge, Fast Track Court, Shimla, in Cr.Appeal No.58-8/10 of 2004/03, dated 2.1.2008, affirming the order of conviction passed by the learned Judicial Magistrate Ist Class, Court No.2, dated 17.12.2002 in case No.241/2 of 2001. 2. Facts necessary for the adjudication of the case at hand are that on 16th August, 2001, in the forenoon, police received telephonic information in Police Post, Suni, that a person, who had suffered injuries by falling from a jeep and was brought in unconscious state to the hospital for treatment, has expired. Police, on the receipt of the aforesaid information, entered daily diary report No.8 in the Police Post and immediately thereafter Head Constable Tek Ram, the then Investigating Officer, Police Post, Suni, alongwith staff went to the hospital and recorded the statement of Vidhan Lal Ex.PW-1/A under Section 154 Cr.P.C., wherein he stated that he is an agriculturist and resident of village Dewal (Thali), Post Office, Suni. He stated that on 16.08.2001, he alongwith his brother Mast Ram, wife Smt.Naina Devi and children was returning from the house of his in-laws from village Shali to Suni but in Bagipul, one Sh.Ansuia Ram alias Chet Singh met him and at around 8.45 A.M., a Pick-up Van/Utility/Jeep (hereinafter referred to as `Pick-up’) bearing registration number HP-51-4381 appeared from Mandri side. Since the driver of the aforesaid vehicle known to Shri Chet Singh i.e. deceased, he approached the driver of the Utility and asked him to give them lift. Then all of them including complainant and deceased boarded the Pick-up in which already a few persons were sitting/traveling. He stated that since there was not much space in the Pick-up, he, Chet Singh, Mast Ram and Ghanshyam stood in the body of the Pick-up by catching hold of the iron angles affixed in the body. He categorically stated that since the bus which actually plies on that route had not come, they had taken lift in the Pickup. Accused Bhupinder Sharma was driving the vehicle on high speed and when it reached Dadyog check post, the barrier was closed. However, the light motor vehicles could cross the barrier from below the iron pole/bar affixed there, since barrier was half open. Accused Bhupinder Sharma was driving the vehicle on high speed and when it reached Dadyog check post, the barrier was closed. However, the light motor vehicles could cross the barrier from below the iron pole/bar affixed there, since barrier was half open. He stated that the head of Chet Singh was outside the body of the Utility and when the Utility was crossing the barrier, neither the accused applied the brakes nor he slowed down the vehicle and he tried to cross the barrier underneath the iron pole at a very high speed. Resultantly, the head of Chet Singh struck against the pole of the barrier and he fell down from the Utility on the road. He sustained grievous injury on his head and became unconscious. However, in the same vehicle he was brought to Suni Hospital for treatment where, after examining him, doctor declared him dead. He stated that mishap occurred because of the rash and negligent driving of the accused. 3. On the aforesaid statement recorded under Section 154 Cr.P.C. of Shri Vidhan Lal, information was sent to Police Station, Dhali, for registration of FIR bearing No.186/2002, Ex.PW-6/A. Police, after getting postmortem conducted of the dead body of Chet Singh, obtained the report, after taking into possession the vehicle got it mechanically examined and lateron released the same on sapurdari as per orders of the Court. Photographs of the site of occurrence were clicked and statements of the witnesses also recorded under Section 161 Cr.P.C. 4. After completion of necessary investigation, police presented the challan under Section 173 Cr.P.C. in the Court of learned Judicial Magistrate Ist Class (2), Shimla on September, 29, 2001 and the accused was summoned by the learned Magistrate. Learned trial Court, after satisfying itself, found accused liable to be charged for offences under Sections 279, 304A of the Indian Penal Code (hereinafter referred to as `IPC’), put notice of accusation to which accused pleaded not guilty and claimed trial. 5. In the present case, prosecution examined as many as 6 witnesses and tendered in evidence few documents in support of its case. Accused in his statement recorded under Section 313 Cr.P.C. admitted that he was driving the offending vehicle at the relevant time and also admitted that the accident had taken place causing the death of Shri Chet Singh. 5. In the present case, prosecution examined as many as 6 witnesses and tendered in evidence few documents in support of its case. Accused in his statement recorded under Section 313 Cr.P.C. admitted that he was driving the offending vehicle at the relevant time and also admitted that the accident had taken place causing the death of Shri Chet Singh. However, he stated that mishap did not occur due to his rashness or negligence and he is innocent. 6. Learned trial Court, after concluding the trial, held the accused guilty of the offences under Sections 279 and 304A IPC and sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/-. 7. Feeling aggrieved with the judgment dated 17.12.2002 passed by learned Judicial Magistrate Ist Class, Shimla, the present petitioner filed an appeal before the Court of learned Sessions Judge under Section 374 Cr.P.C. praying therein for quashing and setting aside of the judgment dated 17.12.2002 passed by learned Judicial Magistrate Ist Class. However, the same was dismissed by the Court of learned Additional Sessions Judge, Fast Court, Shimla and the judgment passed by the learned trial Court was upheld. Hence, the present petition filed by the petitioner. 8. Shri G.D. Verma, learned Senior Counsel appearing on behalf of the petitioner, stated that the judgments under challenge are unsustainable as the same are not based on correct appreciation of the evidence on record. He vehemently argued that the real point of controversy has not been considered and appreciated by both the learned Courts below and inference and conclusion as drawn are neither supported by material on record nor by provisions of law. He pleaded that there is no independent and reliable evidence on record, which could persuade the Courts below to conclude that accused was driving the vehicle rashly and negligently which ultimately resulted into the death of Chet Singh. He also during his arguments invited the attention of this Court to the statement given by the prosecution witnesses and made a serious attempt to point out that there are major contradictions in the statements made by the witnesses cited by the prosecution. He also during his arguments invited the attention of this Court to the statement given by the prosecution witnesses and made a serious attempt to point out that there are major contradictions in the statements made by the witnesses cited by the prosecution. He forcefully argued that principle of contributory negligence has been wrongly overlooked by the Courts below because there was ample evidence on record to suggest that deceased Chet Singh was himself negligent while traveling in the vehicle because at the time of incident he was standing in the Pick-up. He stated that even for the sake of arguments, if it is accepted that accused is guilty of offences under Sections 279 and 304A IPC, the order of sentence as imposed is highly excessive and was not warranted in the present facts and circumstances of the case, where deceased was equally negligent. 9. On the other hand, Mr.R.P. Thakur, learned Additional Advocate General, appearing for the State, has duly supported the judgments passed by both the Courts below and prayed that no interference of this Court is warranted in the present case as the judgments passed by both the Courts below are based on correct appreciation of evidence on record. He argued that rather Courts below have taken very lenient view and only punishment of six months has been awarded for the offences under Section 304A IPC, where admittedly one person has died due to the negligence of the accused. He also submitted that powers of this Court, while exercising its revisional jurisdiction under Section 397 Cr.P.C. is very limited and prayed for dismissal of present petition being devoid of any merit. 10. I have heard learned counsel for the parties and have gone through the record of the case. 11. True, it is that while exercising revisional jurisdiction under Section 397 Cr.P.C., this Court has very limited jurisdiction to re-appreciate the evidence available on record but in the present case where the petitioner has been held guilty of the offences under Section 279 and 304A IPC and has been convicted and sentenced for six months imprisonment, solely with a view to ascertained that the judgments passed by the Courts below are based on correct appreciation of evidence on record and they are not perverse, this Court undertook exercise to critically examine the evidence be it ocular or documentary on record. 12. 12. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:- “8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order.” 13. In the present case, prosecution, while proving its case, relied upon six witnesses; namely; PW-1 Complainant Vidhan Lal, PW-2 Ramesh Chand and PW-3 Uttam Ram, employees of the Forest Department, who were on duty of the Forest check post/barrier at the relevant time, PW-4 Ghanshyam, who was also traveling in the offending vehicle at the relevant time, PW-5 Sunil Negi and PW-6 HC Tek Ram, who had recorded the statements of PW-1 Vidhan Lal and registered FIR Ex.PW-6/A on that basis. He had obtained the postmortem report Ex.P-4 of deceased Chet Singh and prepared map Ex.PW-6/B, showing the place of the mishap, PW-6 had also taken into possession the offending vehicle Ex.P-1 which was lateron released on supardari vide memo Ex.P-2. He had obtained the postmortem report Ex.P-4 of deceased Chet Singh and prepared map Ex.PW-6/B, showing the place of the mishap, PW-6 had also taken into possession the offending vehicle Ex.P-1 which was lateron released on supardari vide memo Ex.P-2. Driving licence of the accused was also taken into custody by HC Tek Ram vide memo Ex.P-3. 14. Shri Vidhan Lal, who was the first person to give the first hand information to the Police i.e. HC Tek Ram PW-6, has stated that he, his wife Smt. Naina Devi, Shri Mast Ram, Sh.Chet Singh and Sh.Ghanshyam were going from village Shali to Suni in a pick-up, which met them near Bagipul. He categorically stated that though other passengers were sitting in the body of the vehicle, he, deceased Chet Singh and Ghanshyam were standing because there was paucity of space in the Pick-up. It has come in his statement that when they reached Dadhyog barrier, the same was half open and accused tried to cross the barrier and in that process, the head of Sh.Chet Singh and another commuter dashed against the pole of the barrier, as a result whereof, Chet Singh had suffered head injuries and ultimately he was declared dead. He stated that accident took place due to the fault of the driver. He also proved Ex.PW-1/A statement which he made before the police. However, careful perusal of the cross-examination of this prosecution witness suggests otherwise, wherein he admitted that they had taken lift in the vehicle of the accused voluntarily and Chet Singh was standing in the Pick-up with his back towards the driver. Rather he admitted in his crossexamination that the head of Sh.Chet Singh was protruding out of the body of the vehicle, whereas, the heads of other passengers were inside. In his cross-examination he admitted that Sh.Chet Singh was at fault. However, he denied that the accused was not aware of the fact that Chet Singh was standing in the body of the vehicle. One thing clearly emerges from the statement of PW-1 that he alongwith other persons, including the deceased, had taken lift voluntarily and accused just a view to help them allowed them to board the Pick-up. It has come in his statement that on the relevant date bus which used to ply on that road had not come and on this pretext they had taken lift in the offending vehicle. It has come in his statement that on the relevant date bus which used to ply on that road had not come and on this pretext they had taken lift in the offending vehicle. It also emerges from the statement that Chet Singh at the relevant time was standing in the Pick-up with his back towards the driver side and he had protruded his body out of the vehicle, meaning thereby when the vehicle in question was crossing the barrier which was half open, as per the statement of this prosecution witness, deceased Chet Singh was standing protruding his body out of the vehicle that too having his back towards the driver, which fact suggests that deceased Chet Singh was quite negligent while traveling in the ill fated Pick-up. It has also come in the statement of this witness that when they boarded this Pick-up, there were already number of people sitting in the vehicle and none of them except complainant, deceased Chet Singh and Ghanshyam were standing in the Pick-up. At-least one thing can be inferred that very conduct of deceased Chet Singh at the time of accident suggests that deceased Chet Singh was also responsible in this accident as a result whereof he ultimately passed away. PW-1 though stated that vehicle was being driven in high speed and tried to cross the barrier when it was half open, the aforesaid statement of the complainant cannot be accepted on its face value for two reasons; first vehicle was full of the persons and when vehicle reached Dadyog barrier, it was half open when they reached the spot of occurrence. 15. Though there is no specific evidence with regard to speed of the offending vehicle at the relevant time, save and except bald statement of PW-1 that the vehicle was being driven rashly and negligently. It is also difficult to accept that vehicle was being driven at high speed even at the barrier, where usually speed of vehicle becomes slow. PW-1, who was the eye witness to the present incident, unequivocally stated that there was the fault of deceased Chet Singh. It is also difficult to accept that vehicle was being driven at high speed even at the barrier, where usually speed of vehicle becomes slow. PW-1, who was the eye witness to the present incident, unequivocally stated that there was the fault of deceased Chet Singh. It appears that when vehicle was passing through the barrier, it was half open and admittedly the head of deceased Chet Singh, which was protruding out of the body of the vehicle, struck with the pole of the barrier and he fell down from the Pick-up on the road and injury was caused to him. Mere statement of admission to the effect that the body of Chet Singh was protruding out of the body of the vehicle that too at the barrier suggests that deceased Chet Singh himself was quite negligent and responsible for accident. Though it has come in the statement of this witness that another commuter dashed against the pole of the barrier but there is no evidence on record either, be it ocular or documentary, produced by the prosecution to establish the aforesaid fact. Had other person, who, as per the version of PW-1 also dashed against the pole of the barrier, brought in the witness box, he would have strengthen the case of the prosecution. Rather his omission from the investigation as well as from the list of prosecution witnesses compels this Court to draw adverse inference. If that person had also dashed against the pole of the barrier, he must have suffered some injuries but no medical evidence proving the same has been placed on record. 16. Statement of PW-1 needs to be dealt with very carefully in view of two facts that he was also traveling with deceased Chet Singh on the crucial day in the same vehicle and deceased Chet Singh was known to brother-in-law of present complainant PW-1 Vidhan Lal, meaning thereby he is interested person. Since deceased Chet Singh suffered injuries in his presence that too when they were allowed to board that Pick-up on the request of deceased Chet Singh as the accused was known to him, it can be inferred that PW-1 did not state correct facts and deposed falsely against the accused. Since deceased Chet Singh suffered injuries in his presence that too when they were allowed to board that Pick-up on the request of deceased Chet Singh as the accused was known to him, it can be inferred that PW-1 did not state correct facts and deposed falsely against the accused. On one hand PW-1 categorically stated that Chet Singh was at fault as he had protruded his body from the vehicle and on the other hand he tried to suggest that vehicle was being driven rashly and negligently. Interestingly, prosecution did not site any other commuter, except PW-4 Ghanshyam Singh, who could come and depose that vehicle was being driven at that time at high speed. 17. Ghanshyam Singh PW-4, who has supported the story of prosecution and endorsed the statement given by PW-1 Vidhan Lal also, did not specifically state that in what manner vehicle was being driven rashly and negligently. Careful reading of the statements of PW-1 and PW-4 suggests that they have stated that when vehicle reached the barrier, which was half open, accused tried to pass through the same by driving the vehicle at a very high speed. 18. PW-2 Ramesh Chand and PW-3 Uttam Ram, who were the employees of the Forest Department, stated that being the employees of Forest Corporation they were posted at Forest Check-post Barrier at the relevant time. They were the eye witnesses to the incident but PW-3 Uttam Ram stated in his statement that around 10.00 A.M. one truck had come from Jhakri side and he made the entry regarding truck, opened the barrier, allowed the truck to cross it and thereafter pulled down the iron bar/pole and again closed the barrier, meaning thereby when Pick-up had to cross that barrier, it was closed. Though he stated that after sometime vehicle in question came from Dhami side at fast speed, he signaled its driver to stop and the moment he tried to open the barrier, the driver of the vehicle tried to cross the check post from below the pole, as a result of which it struck against the head of a person, who was standing in the body of the Pick up. He also stated that in all three persons were standing in the rear portion of the Pick-up. He also stated that in all three persons were standing in the rear portion of the Pick-up. Statement of PW-3 also does not appear to be trust worthy solely for the reason that he stated that after crossing the truck he pulled down the iron pole/bar and closed the barrier. On the other hand PW-1 stated that when Pick-up reached the spot, barrier was half open, which is in total contradiction of the statement of PW-3. There appears to be another contradiction where he states that after seeing the Pick-up which was coming from Dhami side, he signaled to its driver to stop the vehicle, but the moment he tried to open the barrier driver crossed the check post from below the check post leading to the accident. It is not understood, when vehicle crossed and PW-3 had signaled the driver to stop it, how Pickup could cross below the pole of the barrier. It also remained unexplained when PW-3 signaled the Pick-up to stop, why another moment he tried to open the barrier. In his crossexamination he stated that the barrier remains half open so that the small vehicles can cross. The aforesaid admission made by PW-3 in his cross-examination is in total contradiction to the statement made in his examination-inchief where he categorically stated that after crossing of the truck he closed the barrier and after seeing the Pick-up he signaled the driver to stop. But one thing clearly emerges from the statement of PW-3 that deceased Chet Singh alongwith three persons were standing in the rear portion of the Pick-up which has been also stated by PW-1. It appears that statement of PW-1 to the effect that at that time head of Chet Singh was protruding out of the body of the vehicle is correct because as per version of PW-2 when Pick-up crossed the half open barrier three persons were standing but admittedly in the present case head of deceased Chet Singh was struck against the pole of the barrier. From this fact it can be safely inferred that accused- driver, if at all tried to cross the vehicle in question under the half open barrier, he was conscious or alive to the fact that this vehicle can cross below half open barrier. But he did not know that a person had protruded his head out of the body of the vehicle. But he did not know that a person had protruded his head out of the body of the vehicle. If deceased Chet Singh had not protruded his head out of the body of the vehicle, perhaps he would have also not suffered any injury as all the other three persons standing in the rear portion of the Pick-up did not suffer any injury. 19. PW-4 Shri Ghanshyam though has supported the prosecution story in its entirety, rather he has stated that accused crossed the barrier at high speed though its pole had been pulled down. Careful reading of the statement given by PW-4 leaves no doubt in my mind that story put forth by the prosecution is full of contradictions and none of the prosecution witnesses as discussed have been specific in detailing the incident. As has been discussed above, PW-2 stated that after crossing of the truck he pulled down the iron bar/pole and again closed the barrier and after seeing the Pick-up signal was given to the driver to stop the vehicle. PW- 4 stated that accused crossed the barrier at high speed though its pole had been pulled down; meaning thereby that if the statement of PW-4 is taken to be true at this juncture, it means when Pick-up allegedly crossed the barrier it was closed. But it is none of the case of the prosecution that accused tried to run away from the barrier by breaking it. Rather case of the prosecution is that barrier remains half open so that small vehicles can cross but versions put forth b PW-2 and PW-3, who were the officials of the Forest Department and were manning the barrier post at the relevant time, compel this Court to draw conclusion that story being put forth by the prosecution that the barrier was half open and accused crossed that half open barrier in high speed is false and incorrect, because it clearly emerges from the statements of these prosecution witnesses that at the relevant time barrier was closed, otherwise what is the purpose of barrier. Purpose of barrier is to stop the vehicle with a view to check whether same is having proper registration or carrying goods/materials, which a vehicle can carry legally. Story put forth by the prosecution that barrier remains half open is totally against the purpose of putting barriers. Purpose of barrier is to stop the vehicle with a view to check whether same is having proper registration or carrying goods/materials, which a vehicle can carry legally. Story put forth by the prosecution that barrier remains half open is totally against the purpose of putting barriers. If barrier is kept half open, any vehicle can cross the same without getting itself checked. 20. PW-6 HC Tek Ram had recorded the statement Ex.PW-1/A of PW-1 Vidhan Lal and subsequent whereof FIR Ex.PW-6/A was registered. Spot map Ex.PW-6/B showing the place of mishap was also prepared by him. Mechanical report Ex.PW-7/A also suggests that there was no mechanical defect found in the utility. 21. In the present case as per statements given by the aforesaid prosecution witnesses on record, incident occurred and one person; namely Shri Chet Singh; died. But now it remains to be seen whether accident occurred due to the rash and negligent driving of the accused or not. Admittedly, at first instance there was no occasion for accused to allow persons to board in Pick-up vehicle, which, in normal circumstances, is a goods carrier vehicle. But in the present case where it has come in the statement of the complainant that since bus had not come on the same day, a request was made by deceased Chet Singh, who was known to accused, to give them lift, which fact clearly suggests that accused gave them lift in the offending vehicle solely on humanitarian ground probably he never knew that after sometime unfortunate incident would occur causing death of one person. 22. At this stage, if viewed from this angle that accused had allowed the deceased as well as other persons to board the Pick-up, on the request having been made by deceased Chet Singh, who, as per the statements of PW-1 and PW-4, on his own wish knowing fully well that number of people are already sitting in the Pick-up, boarded the same, it can be said that he was equally negligent while boarding Pickup. Hence, at this stage, it can be safely concluded, had the Courts below analyzed the aforesaid aspect that the request made by the deceased to board the vehicle could be termed as a step towards contributory negligence. 23. Hence, at this stage, it can be safely concluded, had the Courts below analyzed the aforesaid aspect that the request made by the deceased to board the vehicle could be termed as a step towards contributory negligence. 23. Now, if the statements given by all the prosecution witnesses’ vis-à-vis documents available on record, are critically analyzed, one thing clearly emerges that commuters traveling in the offending vehicle were also very negligent. It has come in the statement of PW-1 that when they boarded the ill-fated vehicle, already number of people were sitting there and virtually they had to stand by holding angle of the Pick-up. 24. None of the prosecution witnesses has stated with regard to the speed of the vehicle. True it is that specific speed of the vehicle at the time of accident cannot be ascertained as there is no method to do the same. But in this regard only version of the person who actually saw the accident happening can be taken into consideration to determine the speed of the vehicle. It is also a fact that speed and negligence both are different aspects, sometime driver driving the vehicle in the speed of 100 may not be negligent and sometime driver driving it at speed of 20 may be negligent. But in the cases like the present one, it needs to be proved that accident has actually occurred due to the rash and negligent driving of the accused. As has been observed above that, since it has come in the record that there were other commuters/persons traveling in the vehicle but none of them were cited as a prosecution witnesses to strengthen the version of the prosecution. No doubt, PW-1 has stated that vehicle was being driven by the driver at a high speed but his statement cannot be taken as an expert. Secondly, Court cannot loose sight of the fact that he was related to deceased Chet Singh and in other way he can be termed obliged to Chet Singh, who had actually arranged this vehicle at that juncture, when bus had not come. Secondly, in one breath PW-1 has categorically stated that Chet Singh was at fault since he had protruded his head outside the body of the vehicle, meaning thereby PW-1 is trying to suggest two different things in his statement which can not be accepted. Secondly, in one breath PW-1 has categorically stated that Chet Singh was at fault since he had protruded his head outside the body of the vehicle, meaning thereby PW-1 is trying to suggest two different things in his statement which can not be accepted. Another person PW-4 Ghanshyam, who was also traveling in the offending vehicle at the relevant time though supported the prosecution but categorically stated that accused crossed the barrier in a high speed though its pole had been pulled down. Thus, aforesaid statement of PW-4 is in total contradiction of statement of PW-1 who had stated that barrier was half open. 25. Statements of PW-2 and PW-3 do not appear to be confidence inspiring and trustworthy solely for the reason that if their versions are to be believed, safely inference can be drawn that at that time when offending vehicle crossed the barrier which resulted in the death of deceased Chet Singh, barrier was closed, which is admittedly not the case of the prosecution. The prosecution, has nowhere stated that driver accused tried to run away/pass away the vehicle by breaking the barrier. Rather its specific case has been that accused tried to cross the barrier, which remains half open. 26. In the totality of the facts and circumstances narrated hereinabove, I have no hesitation to conclude that statements given by the aforesaid prosecution witnesses are not sufficient to hold that accused-driver was driving the vehicle at the relevant time at the high speed and that too negligently. Rather their statements suggest that it is the deceased Chet Singh, who has been quite negligent while traveling in the vehicle. Had he not protruded his head from the body of the vehicle, he would have been not suffered injuries as was not suffered by other persons, who were also standing in the rear portion of the Pick-up. 27. The conclusion drawn by the courts below that accused did not slow down the vehicle at the barrier and tried to cross the same, when it was half open appears to be totally incorrect in view of the statements given by the prosecution witnesses especially PW-2 and PW-3, who were the persons manning the barrier at the relevant time. From their statements it can be safely concluded that barrier at that time was closed. From their statements it can be safely concluded that barrier at that time was closed. Rather judgment passed by first appellate Court suggests wherein in para-25 it has been observed that: “Even if, the depositions made by PWs 2 and 3 are ignored, there is satiable evidence on the record to suggest that the accused is/was a wrongdoer”. This aforesaid observation made by the first appellate Court below suggests that even first appellate Court was convinced that statements given by PW-2 and PW-3 are not trustworthy and rather same suggest that barrier was closed at the relevant time which fact is totally contrary to the case put forth by the prosecution. Now, statements of the remaining witnesses i.e. PW-1 and PW-4 cannot be considered to be confidence inspiring for the reasons stated herein above. There are major contradictions in the statements given by these witnesses. They have been not specific rather their statements are very inconsistent and cannot be accepted in the facts and circumstances of the present case. 28. Moreover, in the present case prosecution has miserably failed to prove that there was criminal rashness and culpable negligence on the part of the accused which could render him liable for punishment under Section 304A IPC. Rather, as has been observed above, accused allowed deceased Chet Singh as well as other co-travellers to board his Pick-up when bus had not come. Admittedly, the accused was at fault when he allowed them to board the vehicle which was goods carrier vehicle, but, in the totality of the facts and circumstances available on record, it can be safely inferred that he allowed them to board vehicle solely on humanitarian ground because he had no intention to harm anybody rather he intended to help the persons. Very glaring aspect of the present case is that while convicting the present accused both the Courts below brushed aside all the parameters of contributory negligence by saying that concept of contributory negligence is not applicable in criminal jurisprudence. The aforesaid conclusion made by the Courts below appears to be totally contrary to law. The doctrine of contributory negligence is definitely applicable in criminal jurisprudence because to conclude that on whose fault accident occurred, it is necessary to go into the details of the case and find out who was the actual person responsible for the accident. The aforesaid conclusion made by the Courts below appears to be totally contrary to law. The doctrine of contributory negligence is definitely applicable in criminal jurisprudence because to conclude that on whose fault accident occurred, it is necessary to go into the details of the case and find out who was the actual person responsible for the accident. There are number of cases where vehicles were being driven in normal speed on its side but suddenly somebody appears and gets injured by striking with the vehicle. In such like cases and in other number of cases, it has been held by the Courts that it was not the fault of the driver driving the offending vehicle, rather fault was contributory to the person who suddenly appeared before the vehicle and caused the accident. 29. Admittedly, in the present case one person has died due to the unfortunate incident but merely, because some person has died, it cannot be said that the accident was deliberate and due to rash and negligent driving. In the present case, there is ample evidence which suggests that deceased Chet Singh was negligent as he was standing in the rear portion of the vehicle and had protruded his head out of the body of the vehicle at the time of accident. In the cases, where prosecution intends to charge the accused/person under Sections 279 and 304-A IPC, it is their bounden duty to place on record specific evidence that vehicle was being driven rashly and negligently. In the present case where there is overwhelming evidence to suggest that deceased Chet Singh was himself negligent, as has come in the statement of PW-1, which, Courts below could have examined from that angle but both the Courts below have brushed aside the concept of contributory negligence. 30. In this behalf Hon’ble Orissa High Court in Bijuli Swain vs. State of Orissa, 1981 Crl.L.J.583, held: “7. If the evidence available on record in the instant case is judged on the principles laid down by this Court, as stated above, it is evident that there is no evidence on behalf of the prosecution that the petitioner was driving rashly and negligently. Due to such rash and negligent driving the accident took place. Merely because some persons have been injured, it cannot be said that the accident was deliberate or due to rash and negligent driving. Due to such rash and negligent driving the accident took place. Merely because some persons have been injured, it cannot be said that the accident was deliberate or due to rash and negligent driving. The prosecution has failed to establish the ingredients of Sections 279 and 304-A, Indian Penal Code and, as such, the conviction of the petitioner is not sustainable.” (P.884) 31. In Bagtawar Singh vs. State of Rajasthan, 2005 Crl.L.J. 2636, the Hon’ble Rajasthan High Court held: “4. The deceased, on his own, opened the gate and alighted from the bus, while it was, still, in motion. On asking by the Conductor and the passengers the petitioner immediately stopped the bus. On these facts if the deceased had no patience and without waiting for the bus to come to complete halt, alighted, no negligence can be attributed to the driver of the bus. Thus, even if the prosecution case goes un-rebutted there are no chances of petitioner’s being guilty for offence under Section 279 or 304-A I.P.C.” (P.2636) 32. In State of H.P. and Ors. vs. Parmjit Singh, Latest HLJ 2012 (HP) 297, this Court, while dealing with similar type of case, held: “11. In the light of the law applicable to the facts and circumstances of the case. In the instant case, accident stands admitted and it is also admitted that the accused was driver of the vehicle aforesaid. To prove the offences under Sections 279 and 304-A of the Indian Penal Code as alleged against the accused, the prosecution is obliged to prove the rash or negligent act of driving by him, which was responsible for causing the death of Shri Ghami Ram (deceased). In other words, death must be direct result of the rash or negligent act of accused and the act must be efficient cause without intervention of another’s negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non. There must, therefore, be a direct nexus between death of a person and a rash and negligent act of the accused. The death should be the direct result of rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another’s negligence. Thus, there can be no conviction when rashness or negligence of third party intervenes. 14. The death should be the direct result of rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another’s negligence. Thus, there can be no conviction when rashness or negligence of third party intervenes. 14. It is a settled law that the speed is not a criterion to prove the rash or negligent act of driving. The prosecution, as already stated above is obliged to prove the necessary ingredients of the offence by direct or circumstantial evidence. To fasten the criminal liability for the offences charged, there should be consistent, convincing and reliable evidence. Even in the exceptional cases, where the rule of res ipsa loquitor applies, it cannot be taken for guaranteed that the driver of the vehicle involved in :the accident is guilty of offence. In the same situation, there could be civil liability as well, in addition to the criminal liability, but so far as the criminal liability, it has to be proved beyond reasonable doubt and civil liability can be proved by preponderance of probabilities. 15. On the strength of the aforesaid evidence, it is very difficult to conclude that the accused was driving the vehicle rashly or negligently, more specifically when it has also come in the evidence that the deceased came in contact with the offending vehicle while crossing the road. Therefore, in my considered opinion, the offences punishable under Sections 279 and 304-A of the Indian Penal Code against the accused are not made out.” (pp. 298-299) 33. Learned first appellate Court has returned very strange findings while dealing with the statement given by accused under Section 313 Cr.P.C. where he stated that Shri Chet Singh suddenly stood up because of which his head struck against the barrier. Further Court observed that even if the plea of the accused that Chet Singh suddenly got up because of which his head dashed with the pole is believed on its face value, the same will not absolve the accused of his liability taking into account the facts of the case. The aforesaid observation of the learned first appellate Court does not appear to be correct and called for in the peculiar facts and circumstances of the case, rather it suggests that while dealing with the case at hand, Courts below appears to have swayed away with the emotions, where one person actually died. The aforesaid observation of the learned first appellate Court does not appear to be correct and called for in the peculiar facts and circumstances of the case, rather it suggests that while dealing with the case at hand, Courts below appears to have swayed away with the emotions, where one person actually died. Aforesaid observation made by the first appellate Court suggests that Court was not ready at all to access the aforesaid aspect put forth by the accused, where he stated that Chet Singh suddenly stood up and, as a result whereof, his head struck against the barrier. Had the Court examined this aspect dwelling upon this issue, possibly few facts would have emerged compelling that Court to form some different opinion. 34. Consequently, in view of observations and discussion made hereinabove, I have no hesitation to conclude that the judgments passed by both the Courts below are not based on proper appreciation of evidence available on record, hence the same are quashed and set aside. This revision petition is allowed. Accordingly, the petitioner-accused is acquitted of charges framed against him under Sections 279 and 304A IPC. The Bail bonds furnished by the petitioner are discharged.