1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 1 of 2002. Judgment reserved on : 5.8.2008. Date of Decision: August 13th, 2008. ________________________________________________________ Akshay Kumar …. Petitioner. Versus State of H.P. … Respondent. ---------------------------------------------------------------------------------------- Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the Petitioner : Mr. Onkar Jairath, Advocate. For the respondent : Mr. J.S. Guleria, Law Officer. ______________________________________________________________ Surjnder Singh, J. The learned Sessions Judge in criminal case No.6/2 of 99 decided on 16.11.2001 upheld the conviction and sentence of the petitioner passed by the learned trial court, for the offences under Sections 279, 337, 338 and 304-A of the Indian Penal Code. The petitioner herein was sentenced for the aforesaid offences as under:- Sl.No. Offence under Section Sentenced 1. Under Section 279 I.P.C. 1 month and Rs.500/- fine 2. Under Section 337 I.P.C. 1 month and Rs.500/- fine 3. Under Section 338 I.P.C. 1 month and Rs.500/- fine 4. Under Section 304-A IPC 3 months and Rs.1000/- fine Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 All the sentences were ordered to run concurrently and in default of payment of fine, the petitioner was further ordered to undergo Simple imprisonment for a period of 15 days on each count. It is contended in this petition that the prosecution witnesses admitted that the accident in question had occurred due to the collapsing of the danga (wall) at the place where there was slip on the side of the road and further that the ingredients of the offences charged were not proved, therefore, both the courts below have wrongly passed the judgment of conviction and sentence against the petitioner. In brief the prosecution case against the petitioner was that on 7.11.1998 at about 10 A.M., the petitioner was driving the HRTC Bus bearing registration No.HP-18-3520. Around 12 O’clock, it reached Thuran-ki-Dhar near village Deothal, there was a slight curve on the road and it is alleged that the petitioner could not negotiate the curve properly with the result bus rolled down and all the passengers sitting in the bus sustained the simple as well as grievous injuries and one of the passenger named Smt. Shanti Devi w/o Ganesh Dutt (PW6) died on the spot. The injured were removed to the hospital for treatment and the accident was reported to the police. On reaching the spot, the police prepared the site plan, took the photographs of the spot and also recorded the statements of the witnesses and after completing the investigation, it was presented before the court for its trial. The petitioner denied the charges put to him. The prosecution examined its witness to prove the case. The petitioner was also 3 examined under Section 313 Cr.P.C. The circumstances which were found attendant upon him were also put to him. According to him, he was driving the bus in a slow speed. There was debris on account of the slip on the side of road and while negotiating the curve, the danga (wall) gave way and bus rolled down. No evidence in defence was led. After the complete trial, the petitioner was convicted and sentenced as aforesaid. The petitioner felt aggrieved by the impugned judgment of conviction and sentence and filed an appeal before the learned Sessions Judge, which was dismissed, as such the present revision petition has been filed. Shri Onkar Jairath, learned counsel for the petitioner has vehemently argued that the petitioner was not at fault in causing the accident. The accident had taken place despite his due care and caution, for which he cannot be held guilty. Contra, Shri J.S. Guleria, learned Law Officer has supported the reasoning given by both the courts below, for sustaining the conviction and sentence of the petitioner. The record of both the courts below was called for and examined in detail to find out whether there is any illegality and impropriety in the impugned judgments of the courts below. The petitioner was the driver of the bus at the relevant time and has not denied the accident. The bus went off the road causing the death of Shanti Devi and simple as well as grievous injuries to the other passengers of the bus. 4 There are two sets of witnesses in this case. One is supporting the prosecution and other is making the defence plea probable. PW6 Ganesh Dutt, PW7 Abdul Aziz, PW8 Mani Ram, PW10 Kamlesh and PW11 Kamla have stated that the petitioner was driving the bus in rash and negligent manner, which caused the accident and in the said accident Shanti Devi had died, Ganesh Dutt had sustained the fracture of the spinal cord. PW8 Mani Ram also sustained the injury in the said accident. According to him, the driver was supposed to turn the bus in a particular direction, but it turned towards the opposite side. The second set of evidence consists of PW11 Kamla, she has admitted that at the place of accident, there was a slip on the curve and that the road side danga had collapsed. PW15 Smt. Ganpati in her cross-examination has admitted that the accident had taken place on account of collapsing of the danga. PW23 Dilshad Mohd, the investigating officer also admitted that at the site of accident, it was a sharp curve and there was debris on the road. The Photographs Exts.P1 to P14 also corroborates the above version that there was a slip on the site of the road and photograph Ex.P4 also shows that the roadside danga had collapsed and the bus skidded down from its backside as shown in the photograph Ex.P4 and P-14 and went down on the road as indicated in the site plan. Some of the witnesses have deposed that the speed of the bus 5 was slow, whereas PW1 Dharam Chand and PW2 Ashwani Kumar have not supported the prosecution case. They have denied that the accident had occurred due to the rash and negligent driving by the petitioner, which shows that the driver was reasonably cautious while negotiating the curve. Thus, the evidence of criminal recklessness in this case is lacking. Therefore, it can be concluded that the accident in question might be due to the error of judgment while negotiating the curve at the place where the debris was lying on the side of the curve and suddenly the danga gave a way and then rear side of the bus went off the road and the bus slided down.. In fact, an injury shall be deemed to be negligently caused whensoever it is willfully caused, but results from want of reasonable caution, in the undertaking and doing of any act either without such skill, knowledge or ability as is suitable to the occasion, or without due care taken or ascertain the nature and probable consequences of such act, or when it results from the not exercising reasonable caution in not in the doing of any act, either as regards the means used or the manner of using them or from the doing of any act without using reasonable caution for the prevention of mischief, or from the omitting to do any act which a person using reasonable caution would not have omitted to do. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury, but without any intention to cause injury or knowledge that it will be probably caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Rash and negligent act may be 6 described as criminal rashness or criminal negligence. It must be more than mere carelessness or error of judgment. The courts below did not appreciate the above facts that there was debris on the side of the road on the curve due to the slip, While negotiating the curve, as stated above, some witnesses have admitted that the danga gave way to the bus, which caused the accident and the rash and negligent driving by the petitioner is also denied, therefore, I find that the findings of quilt arrived at against the petitioner by both the courts below were not based upon legal and proper appreciation of evidence. In the circumstances aforesaid, the petitioner cannot be said to have criminal rashness or negligence, thus he is entitled for the benefit of doubt as two views were deducible from the evidence on record. Therefore, this revision petition is allowed and for the foregoing reasons, the judgment of conviction and sentence passed by both the courts below are quashed and set-aside. Consequently, the petitioner is acquitted by giving him the benefit of doubt. The fine if any, deposited be refunded to the petitioner. The respondent is discharged of his bail bonds, furnished at any time during the proceedings of this case. Send down the records. (Surinder Singh) Judge. August 13th, 2008. (Pds)