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2022 DIGILAW 526 (CHH)

Baldau S/o Rruha v. State of Chhattisgarh

2022-11-18

RAKESH MOHAN PANDEY

body2022
ORDER : 1. This criminal revision is filed against the judgment dated 24.01.2012 passed by the learned Sessions Judge, Kabirdham (Kawardha), C.G. in Criminal Appeal No. 17/2011, whereby the judgment of conviction and order of sentence dated 06.04.2011 recorded by the learned Judicial Magistrate, First Class, Kabirdham in Criminal Case No. 269/2010 wherein the applicant was convicted under Section 304A of IPC and sentenced to undergo S.I. for one year with fine of Rs. 1,000/- in default of payment to further undergo S.I. for two months; under Section 3/181 of Motor Vehicles Act imposed only fine of Rs. 500/- in default of payment to further undergo S.I. for one month, has been affirmed. However, the conviction recorded by the learned trial Court under Section 279 of IPC has been set aside. 2. The applicant was convicted by the learned Judicial Magistrate, First Class, Kabirdham (C.G.) in Criminal Case No. 269/2010 dated 06.04.2011 whereby the applicant was convicted for offences punishable under Section 279 of IPC and sentenced to pay fine of Rs. 1,000/- in default of payment to further undergo S.I. for two months; Section 304A of IPC and sentenced to undergo S.I. for one year with fine of Rs. 1,000/- in default of payment to further undergo S.I. for two months and Section 3/181 of Motor Vehicles Act and sentenced to pay fine of Rs. 500/- in default of payment to further undergo S.I. for one month. 3. The case of the prosecution is that, on 14.01.2010 at about 09:45 hours while the applicant was driving the tractor bearing registration No. CG 09 C 5379 and trolley bearing Registration No. CG-04-ZQ-1707 rashly and negligently in village Chilamkodra- Kumharpaniya road turned it turtle because of which Sriram and Sanjay Gond sustained injuries, whereas Dharmu Jaiswal died on the spot. 4. Dehatinalishi (Ex.P/1) was registered on the basis of information given by Pawan (PW-1) on 14.01.2010 at about 12:00 hours. F.I.R. (Ex.P/7) was registered by Chhabil Tandekar (PW-7) against the driver of tractor-trolley. Merg intimation was given on 14.01.2010 at about 19:00 hours regarding death of Dharmu vide Ex.P/8. Postmortem of dead body of deceased was conducted by Dr. Sanjay Khadsan (PW-10) vide Ex.P/12 who opined that cause of death was cardio-respiratory arrest due to excessive internal bleeding. Sriram (PW-9) and Sanjay Jaiswal (PW-5) were injured persons and they were medically examined by Dr. Postmortem of dead body of deceased was conducted by Dr. Sanjay Khadsan (PW-10) vide Ex.P/12 who opined that cause of death was cardio-respiratory arrest due to excessive internal bleeding. Sriram (PW-9) and Sanjay Jaiswal (PW-5) were injured persons and they were medically examined by Dr. S.K. Mishra (PW-11) where the injuries sustained by them were found simple in nature. Injured Sanjay was advised for X-ray. Investigating Officer Chhabil Tandekar (Head Constable/PW-7) recorded the statements of the witnesses and completed the investigation. 5. After completion of investigation, charge-sheet was filed for offences punishable under Sections 279, 337, 338 and 304A of IPC and Sections 3/181 and 5/181 of Motor Vehicles Act against the present applicant. The learned trial Court framed charge for offences punishable under Sections 279, 337, 338 and 304A of IPC and Section 3/181 of Motor Vehicles Act. The applicant abjured the said charges and pleaded non-guilty. The prosecution examined as many as 11 witnesses in support of the case and exhibited 14 documents and statement of the applicant under Section 313 Cr.P.C. was also recorded. 6. The learned trial Court after appreciation of oral and documentary evidence, convicted the applicant as mentioned in Para-1 of this order. The appeal was preferred by the applicant before the Sessions Court, Kabirdham against the judgment of conviction and order sentence recorded by the trial Court and in turn, the learned Sessions Court dismissed the appeal preferred by the applicant, however, acquitted the applicant for offence punishable under Section 279 of IPC against which the instant criminal revision is filed. 7. The learned counsel for the applicant submits that from the evidence of the PW-1, PW-5, PW-8 and PW-9, it is crystal clear that on the date of incident it had rained and accident was caused due to sudden appearance of an animal in front of the tractor-trolley which caused the vehicle to turn turtle. He further submits that the injured witnesses have entered into settlement with the applicant. It is also argued that it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be gross. The rashness and negligence are crux of offences under Section 279 and 304A of IPC, whereas there is admission of the injured persons that the offending vehicle was being driven in control and in a normal speed. The rashness and negligence are crux of offences under Section 279 and 304A of IPC, whereas there is admission of the injured persons that the offending vehicle was being driven in control and in a normal speed. He placed reliance upon the judgment of Hon'ble Supreme Court in case of State of Karnataka vs. Satish, (1998) 8 SCC 493 , where negligent or rash driving of truck, held, has to be established by the prosecution and cannot be automatically presumed on the basis of res ipsa loquitur. It is further held that mere driving of the truck at a “high spead” held, did not lead to the inference that negligent or rash driving caused the accident resulting in death of, and injuries to a number of persons. 8. On the other hand, learned counsel for the State opposed the submission made by learned counsel for the applicant and submits that there is concurrent finding recorded by the courts below. He further submits that two persons namely Sriram and Sanjay Jaiswal sustained injuries, whereas one person Dharmu lost his life. He also submits that there is no scope for interference by this Court and the criminal revision is liable to be dismissed. 9. I have heard learned counsel for the parties and went through the records with utmost circumspection. 10. PW-1 Pawan is son of the deceased who has stated that on the date of incident, the tractor was driven by applicant-Baldau, his father was also sitting in that tractor and on the said date it was raining, suddenly a cow came before the tractor and in order to avoid the accident, the driver took the vehicle to the side of the road, where it got turtled. In Para-5 of his cross-examination, he has admitted the fact that vehicle was being driven slowly and carefully. He further stated that on account of rain, the tractor got slipped and turtled. 11. PW-5 Sanjay, injured witness, has stated in his examination-in-chief that on the date of incident, it was raining and suddenly a cow came across the road and to avoid accident, driver-Baldau took the tractor to the side of the road, where the tractor-trolley got turtled and he sustained injuries. In para-3 of his cross-examination, he has categorically stated that the vehicle was being driven slowly and with due care and accident was not the result of mistake of its driver. 12. In para-3 of his cross-examination, he has categorically stated that the vehicle was being driven slowly and with due care and accident was not the result of mistake of its driver. 12. PW-8 Lala Ram has stated that a cow came across the road and to save its life, the driver took the vehicle to the side of the road, where the vehicle got turtled and two persons sustained injuries and one person died. He has further stated that the vehicle was being driven in a moderate speed and due to rain, accident occurred. 13. PW-9 Sriram has supported the case of the defence and has stated that a cow came across the road and to save the cow, driver took the vehicle to the side of the road and as it was raining, the tractor got slipped and turtled. 14. From the above piece of evidence, it is apparent that the vehicle was being driven slowly and carefully by the present applicant, injured witnesses and other eyewitnesses have supported the case of defence. The prosecution could not prove negligent or rash driving of the tractor-trolley by the present applicant. 15. The Hon'ble Supreme Court in case of Satish (supra) has held in Paras 3 and 4 as under: “3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304-A IPC after recording a finding that the respondent was driving the truck at a “high speed.” No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a “high speed” both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty. 4. Merely because the truck was being driven at a “high speed” does not bespeak of either “negligence” or “rashness” by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by “high speed.” “High speed” is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by “high speed” in the facts and circumstances of the case. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by “high speed.” “High speed” is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by “high speed” in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “res ipsa loquitur.” There is evidence to show the immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.” 16. In the light of the facts of the present case and the principles of law laid down by the Hon'ble Supreme Court, it is quite vivid that it was raining on the date of incident, a cow suddenly came across the road, the applicant tried to avoid the accident, he took the vehicle to the side of the road, the vehicle got turtled, but, the learned courts below have recorded the finding of rashness or negligence which is not available on record. The burden to prove rash and negligent driving was upon the prosecution and cannot be automatically presumed on the basis of res ipsa loquitur. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. The burden to prove rash and negligent driving was upon the prosecution and cannot be automatically presumed on the basis of res ipsa loquitur. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “res ipsa loquitur.” There is sufficient evidence to show that the tractor-trolley got turtled to save a cow while the offending vehicle was being driven slowly and carefully. The learned courts below have not considered above aspect which is a serious infirmity. 17. Therefore, in the opinion of this Court, the learned courts below have committed illegality in convicting the applicant for the offence punishable under Section 304A of IPC and Section 3/181 of Motor Vehicles Act. Thus, the judgments passed by both the courts below are hereby set aside and applicant is acquitted of the charges levelled against him under Section 304A of IPC and Section 3/181 of Motor Vehicles Act. The applicant is reported to be on bail, therefore, no further order to set him free etc is necessary. His bail bonds shall remain in force for a period of six months from today in view of the provisions of Section 437-A of Cr.P.C. If fine amount has been deposited by the applicant, the same be refunded to him. 18. Consequently, the criminal revision is allowed.