IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.113 of 2004. Date of Decision: 18.12.2010. _______________________________________________ Ravi Kumar. ….Petitioner. Versus State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?.No. For the petitioner :Mr. Rakesh Jaswal, Advocate. For Respondent. :Mr.P.K.Sharma, Addl. Advocate General. Dev Darshan Sud, J.(Oral). The appellant challenges his conviction under Sections 279 and 304-A I.P.C. and Sections 184 and 187 of the Motor Vehicles Act. 2. The learned trial Court on the evidence on record convicted the petitioner where after, in appeal the findings and sentence have been upheld by the learned Sessions Judge. 3. The prosecution case in brief is that on 8.10.1997, the petitioner was driving a Matadoor Van bearing No. DDV-7798 from Kangra to Jawalamukhi. At Gummar he Whether reporters of the Local papers are allowed to see the judgment?yes . 2 purportedly hit a school boy Ankesh Singh, who was standing near the road causing injury to him and this boy died on the spot. The entire case is based on the evidence of PW2 Bahadur Singh. He says that he is running a stationery shop and that at around 9.30 a.m. on the fateful day, he was present in the shop when he saw the offending vehicle being driven from Kangra to Jawalamukhi. At that time, this Matadoor Van was carrying passengers. He says that it was being driven at a fast speed and at a distance of about ten yards from the shop, there was a heap of stones where Ankesh Singh deceased was standing. The Matadoor Van driven by the appellant was speeding down the road, struck Ankesh Singh who fell down and instead of stopping, the driver drove away the vehicle which was stopped at a distance of about 400 meters due to a blockade on the road. When the Van stopped, Bahadur Singh confronted the driver accused and told him that injured had been hit by his (appellant’s) speeding vehicle and had to be taken to the hospital. Accordingly, proceedings were initiated against the accused. He is the only eye witness and it is his evidence which requires to be considered in extenso. 4. A preliminary objection has been taken by the State that the findings of fact arrived at by the two courts below cannot be interfered with by this Court exercising its revisional jurisdiction. It is submitted that this Court cannot exercise appellate powers while seized of a case under Section 397/ 401 Cr.P.C. This proposition is well established 3 but at the same time it does not preclude this Court from looking into the evidence in order to ascertain as to whether there is any perversity in the findings of the two courts below. What requires to be considered is whether the statement per se implicates the petitioner. 5. Adverting to the statement, he says in his examination-in-chief that the Matadoor Van was being driven at a fast speed and that after it hit the deceased, he chased the Van and it stopped at a distance of about 400 metres down the road. He says that the road was blocked by one vehicle which was out of order. He continues that he knocked on the window pane of the Van and informed the driver that he caused an accident killing the child. At this, the occupants of the Van alighted at the spot where the accident had occurred. Thereafter, he and his younger brother Jagmit Singh picked up the deceased. He says that the deceased was resident of the same village. Ext.PW2/A is his statement made to the police. In his cross-examination, he seems to be ambiguous about the occurrence. He admits that at the time when the accident took place, there were a number of school children who were walking on the road. He had taken the ignition keys and the registration certificate from the driver. He then admits that at the time when he informed the petitioner that the child had been hit by the Van from the side, the other passengers sitting in the Van expressed surprise and said that they did not notice/know about this fact. At the time when the accident occurred, he says that a 4 number of school children were present at his shop. He then concludes that he did not inform the police that the Van was being driven in a rash and negligent manner and that he does not remember as to what was the speed of the vehicle. This is the entirety of the evidence. 6. Learned counsel appearing for the petitioner places reliance on the judgment of this Court in Gurcharan Singh Vs. State of Himachal Pradesh, 1991 Cri.L.J. 771, holding: “15.Coming to the statements of witnesses on this aspect, it has been stated that the truck was moving in high speed but it has not been said as to what that speed actually was. To say that a vehicle was moving in a high speed is neither a proper and legal evidence on high speed nor in any way indicates thereby the rashness on the part of the driver. The prosecution should have been exact on this aspect as speed of the vehicle is an essential point to be seen and proved in a case u/S. 304 of the Penal Code. Further, there are no skid marks which eliminate the evidence of high speed of the vehicle. In addition to this, it has been stated by the witnesses that the vehicle stopped at a distance of 50 yards from the place of accident. This appears to be exaggerated. However, it is not a long distance looking to the two points, viz. the first impact of the accident and the last tyres of the vehicle and the total length of the body of the truck in question. If seen from these angles, the distance stated by the witnesses cannot be considered to be very long and thus an indication of high speed. The version of the petitioner that he blew the horn near about the place of curve which frightened the child, cannot be considered to be without substance. This can otherwise be reasonably inferred that the petitioner would have blown the horn on seeing the child on the road as it is in evidence that the child had come on the pucca portion of the road while there is no evidence as to whether the witnesses, more particularly, Shri Ghanshayam (PW7), Smt. Chander Kanta (PW8), mother, and a few other witnesses were there at that particular time. Rather the deposition of these witnesses 5 indicate that they were coming from some village lane which was joining the main road in question. Children of this age, usually crafty by temperament, move fasten than the parents and are in advance of them while walking. This appears to have happened in the present case. Minute examination of the circumstances of this case and the evidence brought on the record, discloses that the deceased had reached the pucca portion of the road much before the arrival of his parents and the witnesses. That is why in their disposition they have said that the child had been run over by the truck. On the other hand, the petitioner has stated that the child got frightened on the blowing of the horn by him and started crossing the road which could not be seen by him and the result was the accident and the death of the child. In case some pedestrians suddenly cross a road, the driver of the vehicle cannot save the pedestrians, howsoever slow he may be driving the vehicle. In such a situation he cannot be held negligent; rather it appears that the parents of the child were negligent in not taking proper care of the child and allowed him to come alone to the road while they were somewhere behind and they could have rushed to pull back the child before the approaching vehicle came in contact with it as it is in their depositions that the truck driver was at a distance coming at a high speed and in case the child wanted to cross the road, it could do so within the time it reached at the place of the accident. How the accident has actually taken place, has not been clearly and comprehensively stated by any of the witnesses. They appear to have been prejudiced by the act of the driver. Their versions are, therefore, coloured by the ultimate act of the petitioner and the fact that the child had been finished. ” (P 773) 7. He submits that apart from the evidence, the speed of the vehicle has not been established on the record and merely saying that the Van was being driven at a fast speed is not sufficient. Learned counsel then refers to the judgment of this Court in Kushal Singh Vs. State of H.P. 2009 1 Shim.L.C. 532. The court holds: 6 “10 Legally, to prove the offence under the aforesaid sections, it is not the speed alone which a decisive factor, but the prosecution is obliged to prove the rash or negligent act of driving by the driver of the offending vehicle by leading a cogent and reliable evidence. (See: State of H.P. V. Parmodh Singh, Latest HLJ 2008 (HP) 1360). Once the rash or negligent act is established, only in that situation the onus to disprove it, shifts upon the accused to show that he had taken due care and caution to avoid the accident. Further, it must be proved that rash and negligent act of the accused was causa causans and not causa sin qua non (cause of the proximate cause). There must be some nexus between the injury/death of a person with rash or negligent act of the accused (See: State of H.P. V. Manpreet Singh, Latest HLJ 2008 (HP) 538).” 8. Lastly, he places reliance on the judgment of the Supreme Court in Braham Dass Vs. State of Himachal Pradesh (2009) 7 S.C.C. 353, holding: “8 Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not (sic) negligence. Similarly, in Section 304-A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304-A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved. (P 354) 9. Learned counsel submits that since there is no evidence on the record to establish rashness and negligence, no offence can be established. Learned counsel then submits that even if the version of PW2 Bahadur Singh is accepted, what must not be lost sight of is the fact that he admits that 7 there were a number of school children on/near the road, the passengers sitting in the Matadoor Van themselves admitted that they were unaware about the incident, the road was crowded with school children and not even one amongst them has been produced in evidence to corroborate his testimony. 10. Looking to the totality of the facts and circumstances of the case, it would have been but natural that in case the child was struck and the driver did not notice anything about it, the passengers sitting in the vehicle would have become aware about this fact. There is no evidence to establish this fact. Rather, no witness has been produced in evidence. 11. In these circumstances, I do find it difficult to accept the testimony of this witness in toto to hold that the rash and negligence acts stand established. I find that the courts below have arrived at a perverse conclusion which cannot be sustained in law. In these circumstances, this petition is allowed. The judgment of the courts below is quashed and set aside. Bail bonds furnished by the petitioner shall stand discharged. It is clarified that this judgment shall have no bearing on any claim petition under the Motor Vehicles Act or any other law which may have been instituted for recovery of compensation etc. which award/decision shall remain unaffected. (Dev Darshan Sud), Judge. December 18, 2010(R) 8