IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.93 of 2002 Date of decision: 30.12.2008 State of H.P. .. ..Appellant Versus Dharmender Dutt .. ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No. For the Appellant: Mr.Rajesh Mandhotra, Dy.A.G. For respondent: Mr. R.P.Singh, Advocate. _____________________________________________________ Per Deepak Gupta, J. This Appeal by the State is directed against the judgment of the learned Sessions Judge, Kinnaur at Rampur Bushahr, dated 1.10.2001 whereby he allowed the appeal of the appellant and set-aside the judgement of the learned Sub Divisional Magistrate, Anni, dated 20.8.2001 whereby the accused had been convicted of committing offences punishable under Sections 304 A, 337 and 338 IPC and had sentenced the accused to undergo simple imprisonment for a term of two years and pay fine of Rs.3,000/-. In case of default in depositing the fine accused was directed to undergo further imprisonment of three months. The undisputed facts are that the accused is a driver and on 9.2.1999 he was driving Maruti Van (Taxi) No. HP-01-1292. This taxi was being driven by the accused from Nirmand to Arsu. PW-1 Shri G.R.Bansal …2… alongwith others had hired this taxi. When the vehicle was near Arsu and was going uphill, there was a sharp turn. Vehicle No. HP-06-1545 came from the opposite side. PW-4 Bhag Chand was driving this vehicle. According to the prosecution only one vehicle could pass due to the narrow width of the road. The accused asked PW-4 to reverse his vehicle but he refused to do so. Thereafter, the accused got out of his vehicle and had a heated argument with PW-4. In the meantime, PW-1 G.R.Bansal who was sitting on the front seat of the Maruti Van No. HP-01-1292 also got out of the vehicle and tried to pacify drivers of both the vehicles. At this stage, the Maruti Van No. HP-01-1292 started moving backwards. Two of the occupants of the Maruti Van suffered serious injuries and died as a result of the same. Other passengers suffered injuries. Complaint was lodged by PW-1 G.R.Bansal, on the basis of which F.I.R. Ext.PW-11/A was recorded at Police Station Nirmand. Investigation was done and after completion of the same challan was filed against the accused. The accused on appearance pleaded not guilty and claimed trial. After trial, the learned trial Court convicted the accused as aforesaid. The accused thereafter filed an appeal before the learned Sessions Judge who acquitted the accused. Hence the present appeal by the State. It is not in dispute that the accused was driving a vehicle which was going uphill. It is an established principle of driving that a vehicle going uphill has the …3… right of way. Therefore, PW-4 Bhag Chand was required to reverse his vehicle and make way for the vehicle being driven by the accused. It has also come on record that before stepping out of his vehicle the accused had applied the handbrake. This has been stated by PW-1 himself. The fact that the accused had applied the handbrake is also obvious from the fact that even as per PW-1 after the accused got down and had an argument with PW-4 the vehicle started moving backwards. If the handbrake had not been applied the vehicle would have moved backwards immediately after the accused had got down because admittedly the vehicle was standing on a steep slope. Accused appeared as DW-1 and also stated that he had applied the handbrake and the vehicle had been kept in gear. The learned trial Court convicted the accused by applying the principle res ipsa loquitur. This principle has been wrongly applied in the facts and circumstances of the case. When there was enough oral evidence led by both sides this principle should not normally have been applied. The learned trial Court also did not take into consideration the fact that there is a difference between negligence which may be a tortious act and negligence which may be a criminal act. What is rash and negligent driving and what is criminal rashness has been the subject matter of a number of decisions. …4… What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edition) Volume 34 paragraph 1 (para 3) as follows: "Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two". In this context the following passage from Kenny's Outlines of Criminal Law, 19th Edition (1966) at page 38 may be usefully noted : "Yet a man may bring about an event without having adverted to it at all, he may not have foreseen that his actions would have this consequence and it will come to him as a surprise. The event may be harmless or harmful, if harmful, the question rises whether there is legal liability for it. In tort, (at common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realised the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lie where it falls. But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word 'negligence' denotes, and should be used only to denote, such blameworthy inadvertence, and the man who through his negligence has brought …5… harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages. But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence The common habit of lawyers to qualify the word "negligence" with some moral epithet such as wicked' `gross' or `culpable' has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression in order to explain itself." "Negligence", says the Restatement of the law of Torts published by the American Law Institute (1934) Vol. I. Section 28 "is conduct which falls below the standard established for the protection of others against unreasonable risk of harm". It is stated in Law of Torts by Fleming at page 124 (Australian Publication 1957) that this standard of conduct is ordinarily measured by what the reasonable man of ordinary prudence would do under the circumstances. In Director of Public Prosecutions v. Camplin (1978) 2 All ER 168 it was observed by Lord Diplock that: "the ‘reasonable man’ was comparatively late arrival in the laws of provocation. As the law of negligence emerged in the first half of the 19th century it became the anthropomorphic embodiment of the standard of care required by law.” In order to objectify the law's abstractions like "care" "reasonableness" or "foreseeability" the man of ordinary prudence was invented as a model of the standard of conduct to which all men are required to conform. …6… In Syed Akbar v. State of Karnataka, (1980) 1 SCC 30, it was held that: "28……where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions (1937) (2) All ER 552) simple lack of care such as will constitute civil liability, is not enough; for liability under the criminal law a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied 'reckless' most nearly covers the case. " The Apex Court in Rathnashalvan vs. State of Karnataka, (2007) 3 SCC 474 held as follows: “7. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. 8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, 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 person to have adopted.” …7… In Naresh Giri vs. State of M.P. (2008)1 SCC 791, the Apex Court after considering the entire law on the subject held as follows: “13. According to the dictionary meaning `reckless' means `careless', `regardless' or heedless of the possible harmful consequences of one's acts'. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless deciding to ignore it.” The evidence in the present case has to be examined in the light of the aforesaid law laid down by the Apex Court. Evidence clearly shows that the accused applied the handbrake and had left the vehicle in gear. Therefore, normally the vehicle should not move backward. It may be true that the accused would have been better advised to place a stone behind a tyre but once he had performed the act of applying the handbrake to prevent the vehicle from moving backward, the non placing of a stone behind tyre would not be negligence of the extent to make the accused criminally liable. A handbrake is supposed to work especially when the vehicle has been kept in gear. In fact the handbrake did work since the vehicle did not move back immediately. After the accused got down and had an argument with PW-4, PW-1 also got down from the vehicle. It was at this moment that the vehicle moved backwards. …8… The accused was also right in stating that it was PW-4 who should have given him the right of way. Therefore, I am of the considered view that the matter was rightly decided by the learned lower Appellate Court. The appeal is without any merit and is accordingly rejected. Bail bonds furnished by the accused are ordered to be discharged. December 30, 2008. ( Deepak Gupta ), TM. Judge