Criminal Revision No.818 of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.818 of 2000 Date of Decision 01.02.2010 Roshan Singh ...... Petitioner(s) VERSUS State of Haryana ...... Respondent(s) CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Jagat Singh, Advocate, for the petitioner. Mr.Rajiv Malhotra, Addl. Advocate General, Haryana. ***** A.N.JINDAL, J: The petitioner-accused (herein referred as 'the accused') has challenged the legality of the judgment dated 12.07.2000, passed by Additional Sessions judge, Bhiwani, dismissing his appeal against the judgment dated 11.05.1999/12.05.1999, passed by Sub Divisional Judicial Magistrate, Charkhi Dadri, convicting him under Sections 279 and 304-A of the Indian Penal Code and sentencing him as under:- Under Section Sentence 279 Rigorous imprisonment for a period of 6 months and to pay a fine of Rs.500/- 304-A Rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- Brief resume of facts is that on 10.05.1992, Anand Kumar, while driving scooter was coming towards Charkhi Dadri whereas the accused while driving four wheeler bearing registration No.HR-19-0527 in a rash and negligent manner was going towards Approach Road, Unn. At Criminal Revision No.818 of 2000 2 about 2:30 p.m. when Anand Kumar was yet to reach Approach Road, Unn, the accused while driving the four wheeler rashly and negligently, without giving indication, took a turn and struck the four wheeler in the scooter of Anand Kumar. Resultantly, he fell down, suffered injuries and was shifted to hospital Baund Kalan, and then to General Hospital, Charkhi Dadri. Lateron, he was referred to Medical College & Hospital, Rohtak, where at about 11:15 p.m., he succumbed to his injuries. Vijay Kumar alongwith Ravinder Kumar (PW5), who were following Anand Kumar (deceased), had witnessed the incident. On the statement of Vijay Kumar, FIR was registered. Case was investigated. Ultimately, the accused was challaned and charged under Sections 279 and 304-A of the Indian Penal Code to which he pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined eight witnesses namely Shiv Kumar (PW1), produced the record of medical College & Hospital, Rohtak, ASI Ram Kumar (PW2), had recorded the FIR Ex.PW2/A, Head Constable Siri Om (PW3), deposed that on the receipt of the report Ex.PW3/A he got done the post mortem examination of Anand Kumar on 10.05.1992, Inspector Thawar Singh (PW4) had partly investigated the case, Ravinder Kumar (PW5) is an eye witness to the occurrence, Suresh Kumar (PW6) had identified the dead body, Dr.Narinder Singh (PW7), Medical Officer, Incharge, Mud Hut, Rohtak, who had conducted the post mortem examination and gave the report Ex.PW7/A, Dr.S.C.Nawal, medical Officer, Central Jail, Rohtak (PW8), had conducted the medico legal examination of Anand Kumar on 10.05.1992. When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his Criminal Revision No.818 of 2000 3 false implication in the case. The trial ended in conviction. His appeal was also dismissed. The bare facts appoparent on the record are that the accused was coming from Charkhi Dadri and going towards village Unn. For this purpose, he had to take a turn on his right side to go towards village Unn whereas Anand Kumar was coming from Rohtak Side and reached near the turning of village Unn. The factum of death of Anand Kumar, in the road accident, is also not disputed. The accident took place in day time i.e. about 2:30 p.m. within peak visibility period on 10.05.1992. The FIR Ex.PW2/A was got registered at Police Station Baund Kalan on the next day i.e. 11.05.1992 at about 8:50 a.m. at the instance of Vijay Kumar. The twenty hours delay in lodging the FIR stands unexplained. Only Vijay Kumar could be the best witness to explain this delay but he has not stepped into the witness box to remove the curtain. The FIR was recorded even 12 hours after his death. None of the passers by, who had witnessed the accident, has been examined. No skid marks of the scooter or the four wheeler were collected. Now, I am left with the statement of Ravinder (PW5), who in his statement testified that the accused, while driving the four wheeler at a high speed took a turn negligently towards village 'Unn' without giving any signal, as a result of which four wheeler struck in the scooter. The witness has nowhere stated as to what was the speed of the four wheeler. Mere fact that he was driving the vehicle at a high speed cannot be said to be rash, but in all human probability, since the four wheeler was to have a turn certainly he could not take the turn without slowing down the vehicle. The proof of rashness or negligence are the sine quo for proving the commission of an offence under Section 304-A IPC. There is a Criminal Revision No.818 of 2000 4 marked distinction between a rash act and a negligent act. In the case of a rash act, the criminality lies in running the risk of doing such an act, with recklessness or indifference as to the consequences. A culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow but with the hope that they will not and sometimes with the optimism that they will not, and often with the belief that the author has taken sufficient precaution to prevent their happening. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused to have adopted. Negligence implies an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct or human affairs, would do, or doing something which a prudent and a reasonable man would not do. Thus culpable negligence is acting without the consciousness that the illegal or mischievous act will follow, but in circumstances which show that the actor or the author has not exercised the caution incumbent upon him and if he had, he would have the consciousness. The imputability arises from the neglect of civil duty and circumspection. It was quite day time when the four wheeler was coming on the road on its correct side and he was to take a turn towards the right side to go to village Unn. On coming scooter, which was driven by the deceased, struck on the conductor side in the cabin of the four wheeler. It means the four wheeler had almost taken the turn and the scooterist struck against the left side of the four wheeler. This part of the evidence that accused did not Criminal Revision No.818 of 2000 5 give the indication to turn the vehicle becomes insignificant when he had already turned his four wheeler before the deceased struck his scooter. Furthermore, this solitary testimony of Ravinder Kumar stands uncorroborated quo the negligence of the accused. It was only Vijay Kumar, who was driving the scooter, could see better about the indicators and not the pillion rider i.e. Ravinder Kumar. Moreover, the delay in lodging the FIR also further contributes to the concoction in the prosecution version. Rather, it creates doubt about the presence of Ravinder Kumar at the spot. There is a material improvement in the statement of Ravinder Kumar. Though, he recorded in his statement in Court that he had seen the driver when he had come down. When confronted, it was nowhere found in his earlier statement that the driver had come down. Even in his examination-in-chief, the witness has stated that the accused had stopped the four wheeler for a while and then took away the same. When the accused had not come down from the four wheeler and he was seated quite on the opposite direction where Ravinder Kumar was on the scooter then there was no occasion for him to see the accused. As such, identification of the accused, which was more significant, was never got conducted by the police. Besides, all the incriminating circumstances appearing against the accused were not put to him in his statement under Section 313 Cr.P.C. The cause of accident is that the accused before turning his four wheeler did not give an indicator but this question was not asked to him in his statement. No question was asked as to where and at what time the accident took place and in what manner, the petitioner was at fault. Criminal Revision No.818 of 2000 6 Having scrutinized the judgments awarded by both the Courts below, none has tried to probe into the evidence for reaching the conclusion as to in what manner, the petitioner was at fault. Undoubtedly, the petitioner was driving a heavy vehicle, huge in volume, which could be seen by the scooterist from a long distance. On seeing the vehicle, being turned, the deceased could well perceived that it was to go towards village and he could hold his scooter while enacting the scenario as to how it happened, it appears that sufficient time must have been consumed by the accused while giving a turn to the four wheeler and being day time, the deceased had a sufficient time to see the turning vehicle but it appears that he, for the reasons known to him, could not apply the brakes to the scooter, which slightly struck against the conductor side of the vehicle's cabin. As such, fault appears to be with the scooterist. Anyway, since both the Courts could not make proper observations with regard to the negligence of the accused and no sufficient evidence was found to make sure as to if it was Roshan Singh-accused, who was driving the vehicle at the time of accident, the benefit would go to the accused. Resultantly, I accept this petition; set aside the impugned judgment; and acquit the accused-petitioner of the charges framed against him and direct him to set at liberty forthwith. Bail bond/surety bond furnished by him stands discharged. Fine, if any, deposited, shall be refunded. (A.N.Jindal) Judge 01.02.2010 mamta-II