IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 116 of 2005. Date of Decision: 9th December, 2011. _______________________________________________________ State of Himachal Pradesh ….Appellant. Versus Gulsher son of Sh. Bashir,R/o village and Post Office Kulhal, Police Station Vikasnagar, District Dehradun, Utranchal. ....Respondent. APPEAL UNDER SECTION 378 AGAISNT THE ACQUITTAL. ______________________________________________________ Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. P.M. Negi, Deputy Advocate General. For the respondent: Mr. G.D. Sharma, Advocate. ____________________________________________________ SURINDER SINGH, J (Oral). The acquittal of the respondent has been challenged, in the instant appeal by the State for the offences punishable under Sections 279 and 304-A of the Indian Penal Code. 2. Heard and gone through the record. 3. In short, the prosecution case can be stated thus. Deceased Madan Kumar was a servant in the Whether reporters of the Local papers are allowed to see the judgment? - 2 - Dhaba of PW1 Ravi Kant at Bata-Mandi on the road side of public highway “Paonta-Yamunanagar”. On 19th April, 2001, around 6.00 p.m., deceased had gone to defecate down the side of river. While returning, he is alleged to have been hit by a speeding loaded truck bearing registration No.HP- 16-2125, while crossing the road which was being driven by the respondent. As a result of the injuries, he died while being shifted to hospital, Paonta Sahib where he was declared brought dead. 4. The accident was reported to police by PW1 Ravi Kant. His statement under Section 154 of the Code of Criminal Procedure (Ext.PW1/B) was recorded, which culminated into FIR Ext.PW6/A. PW7 Head Constable Sanjay Kumar visited the spot, prepared the site plan Ext.PW7/A. He also noticed the brake-marks on the road to a distance of 20 feet where deceased Madan Kumar was hit and from that place, he is alleged to have been further dragged to a distance of 22 feet. The inquest papers were prepared. Photographs of the dead body were taken and the police also procured the postmortem report. 5. The statements of the witnesses, PW2 Madan Kumar and PW3 Naveen Kumar, servants of PW1 Ravi Kant, working in his Dhaba were recorded - 3 - under Section 161 of the Code of Criminal Procedure. 6. After completing investigation, Challan was presented in the Court for the trial of the respondent for the offences aforesaid. 7. At the end of the trial, respondent was acquitted on the grounds of contradictions in the statements of prosecution witnesses and situs of accident. The deceased suddenly appeared before the truck on the road and that the respondent had applied brakes but could not avert the accident. Therefore, there was no rash and negligent driving. 8. Admittedly, the respondent was driver of the truck and the accident in question is proved to have taken place, but the prosecution is obliged to prove rash and negligent driving by the respondent by legal means. 9. Section 279 of the Indian Penal Code requires two essentials, viz. (a) driving of a vehicle and (b) such driving must be so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person. To prove the offence under Section 304-A of the Indian Penal Code the prosecution is further required to prove that the - 4 - death is the direct result of rash and negligent act of the accused. 10. The fact that the vehicle is driven in speed cannot by itself, without judging the situation in which the driver has been placed, be a factor to determine rashness or negligence. High speed may not in each case be sufficient to hold that the driver is rash or negligent. If, however, a person is driving along a congested area, street in a town or in a crowded locality where persons are on the move, he has a duty not to drive carelessly and at an unusual rapid pace. The law or usage of the road is not the criteria of negligence. A rash act is primarily an over-hasty act and is thus opposed to a deliberate act. “Negligence” is the breach of a duty caused by the omission to do something which a reasonable man, guided by these considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. There is a fine distinction between a rash act and a negligent act. 11. Once, in a case of rash and negligent act, the prosecution is able to prove the essential ingredients of the offence(s), the pendulum of onus - 5 - to disprove it immediately shifts towards the respondent to show that he had taken due care and caution to avoid the accident. Thus, it must be proved by the prosecution that the rash or negligent act of the accused was causa causans and not causa sine qua non (cause of the proximate cause). There must be some nexus between the death of a person with rash or negligent act of the accused. (Please see State of HP v. Manpreet Singh, [Latest HLJ 2008 (HP) 538] and State of HP v. Parmodh Singh [Latest HLJ 2008 (HP) 1360]. 12. The stand taken by the respondent is that just before the site of accident a truck was standing on the left side of the road. When he was in process of crossing, it suddenly the deceased appeared running before his truck. On seeing him, he applied brakes, blew the horn, but the accident could not be averted and the deceased suddenly struck on its left front side, which was the cause of accident. PW1 Ravi Kant to this extent admits the defence of the respondent that Madan Lal (deceased) was crossing the road, but in cross- examination stated that he was on the edge of the road where he came in contact with the truck. - 6 - However, PW2 Madan Kumar, testified that the deceased suddenly came under the left front tyre of the truck and in cross-examination he lent strength to the case of the accused that this accident had taken place as the deceased had suddenly tried to cross the road. He also stated that traffic police officials were present on the spot, but none of such persons were examined to substantiate the case of the prosecution or to bring on record the truth. 13. PW3 Naveen Kumar, though declared hostile, but stated that the driver of the truck had applied the brakes and blew horn, but despite that the accident could not be averted. 14. PW8 Uttam Chand is another servant of PW1 Ravi Kant, who is also an eye witness to the accident. He stated that the accident took place when the deceased was in the middle of the road where he suddenly came under the alleged offending vehicle. These facts go in consonance with the stand taken by the respondent even while offering his explanation under Section 313 of the Code of Criminal Procedure. 15. Learned Deputy Advocate General submitted that the respondent after the accident fled away, - 7 - his this conduct further afford strength to the prosecution case that he had a guilty mind. Thus, the rash and negligent driving can also be inferred, owing to other circumstance on record. I have considered this aspect of this case also. If the respondent had escaped from the spot could be with a view to save himself from the wrath or rage of the persons present there. Thus, the inference which is sought to be drawn against the accused is not possible in absence of cogent proof of rash and negligent driving. 16. In view of the aforesaid facts and circumstances of the case, in my opinion, the prosecution could not prove the offences charged against the respondent beyond reasonable doubt. Thus, the acquittal of the respondent cannot be interfered with. The appeal sans merit and is accordingly dismissed. 17. The respondent is hereby discharged of the bail bonds entered upon by him during the proceedings of this case. 18. Send down the record forthwith. December 9, 2011. (Surinder Singh), (rc) Judge.