-1- Criminal Revision No.1043 of 2002. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Revision No.1043 of 2002. Date of Decision: February 26, 2010. Jaswinder Singh ... Petitioner VERSUS The State of Punjab ...Respondent 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. Aman Dhir, Advocate, for the petitioner. Mr. K.D.Sachdeva, Deputy Advocate General, Punjab. -.- MOHINDER PAL, J. Petitioner Jaswinder Singh faced trial under Sections 279, 338, 337 and 304-A of the Indian Penal Code (hereinafter referred to as `the Code') on the allegation that on 20.11.1997, while driving the bus of Preet Bus Service bearing registration No.PB-13D-7131 allowed the passengers to ride on the roof of the bus and by driving the bus rashly and negligently, struck the -2- Criminal Revision No.1043 of 2002. same against the branches of the threes. As a result of the accident, complainant Harcharanjit Singh and others received injuries. Sukhjit Singh, Balbir Singh and Kanwaljit Singh, who were sitting beside the complainant on the roof of the bus, had fallen down from the bus and received injuries. Gurjant Singh, Harpreet Singh and Sat Narain had also fallen on the roof of the bus and sustained injuries. Sukhjit Singh and Balbir Singh had succumbed to the injuries. The petitioner was convicted and sentenced by the trial Court under Sections 279, 338, 337 and 304-A of the Code. The maximum sentence awarded to the petitioner was rigorous imprisonment for one year for the aforesaid offences besides fine of Rs.4,000/- as the sentences awarded for these offences were ordered to run concurrently. The appeal filed by the petitioner against the judgment of conviction and the sentence order passed by the trial Court was dismissed by the lower appellate Court. Hence this revision petition. I have heard the learned counsel for the parties and have gone through the records of the case. Learned counsel for the petitioner has argued that both the Courts below have not taken into account the evidence furnished by the prosecution in its right perspective. He argued that the accident in this case had taken place both on account of the negligence of the Driver of the Bus i.e the petitioner and the persons who had boarded the bus while riding on the roof thereof. -3- Criminal Revision No.1043 of 2002. I have given thoughtful consideration to the argument raised by learned counsel for the petitioner. Apparently, there was rush in the bus and the passengers climbed its roof and boarded the bus. It cannot be said that the passengers had done so without the consent of the petitioner, who was driving the bus. The passengers who were riding on the roof of the bus struck against branches of the trees hanging over the road and thereby injuries to the occupants and two deaths had taken place. The petitioner was negligent first in allowing the passengers to ride on the roof of the bus and then in taking the bus to the extreme left of the road; thereby causing the accident. At the same time, the passengers including the complainant were equally negligent in riding on the roof of the bus. It shows it was a case of contributory negligence. The contributory negligence in realm of torts may be an extenuating circumstance to mitigate the liability to pay the damages but that cannot be a sole decisive factor to avoid the liability of compensation. However, in criminal jurisprudence if the accident had taken place on account of contributory negligence and in the absence of any material to show that only on account of rash and negligent driving of the accused/driver the accident has occurred, it would not be permissible under such circumstances to hold the accused driver guilty of committing an offence. In a case of contributory negligence, no penal liability can be fastened on the accused/driver. It is obviously for the reason that but for the contributory negligence, the accident could -4- Criminal Revision No.1043 of 2002. not have occurred. For the aforesaid reasons, I am of the considered opinion that the prosecution has not been able to prove its case against the petitioner beyond all reasonable doubts. Consequently, this petition succeeds. The same is, accordingly, allowed, the impugned judgments and the sentence orders passed by both the Courts below are set aside and the petitioner is acquitted of the charges framed against him. February 26, 2010. ( MOHINDER PAL ) ak JUDGE