IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No.885 of 2000 Date of decision: May 13, 2010 Santokh Singh .. Appellant Vs. State of Punjab .. Respondent Criminal Revision No.918 of 2000 Shingara Singh .. Appellant Vs. State of Punjab .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Bipan Ghai, Sr. Advocate with Mr. Sandeep Gahlawat, Advocate for the appellant in Crl. A. No.885 of 2000. Mr. R.S. Athwal, Advocate for the appellant in Crl. A. No.918 of 2000. Mr. C.S. Brar, DAG, Punjab for the respondent-State. A.N. Jindal, J This judgment of mine shall dispose of two connected revision petitions No.885 and 918 of 2000, preferred against the judgment dated 17.7.2000 passed by the learned Additional Sessions Judge, Fatehgarh Sahib, dismissing the appeals filed by the accused-petitioners (herein referred as 'the accused') against the judgment dated 21.7.1999 passed by the Judicial Magistrate Ist Class, Fatehgarh Sahib, convicting and sentencing them to undergo rigorous imprisonment for five months and to pay fine of Rs.500/- each under Section 279 IPC and rigorous imprisonment for two years and to pay fine of Rs.1000/- each under Section 304-A IPC. The case relates to the accident where two buses collided resulting into death of four and injuring 17 persons. Criminal Revision No.885 of 2000 & Criminal Revision No.918 of 2000 -2- A brief resume of facts is that when SI/SHO Piara Singh was on patrol duty, he came to know that an accident had taken place. He reached the Sirhand-Patiala road and recorded statement of Hari Singh who disclosed that he was coming back to his house on a bicycle from his field. At about 1.15 p.m. when he was near the field of Jagat Singh on Patiala road, then Shingara Singh while driving bus bearing registration No.PJG 3754, rashly and negligently crossed him. In the meantime, another bus bearing registration No.PJG7321 driven by Santokh Singh came at a very high speed from Sirhand side. Both the buses struck against each other, as a result of which bus bearing registration No.PJG 7321 after striking other bus turned turtle and other bus was damaged from the right side. Both the accused being drivers of the respective buses suffered injuries. Two ladies and two gents died at the spot and many others were injured. On the basis of the aforesaid statement, a case was registered against the appellants. ASI Surjit Singh conducted the investigation, prepared the inquest report of the dead bodies and dispatched the same for postmortem examination, the injured were admitted in the Civil Hospital, Fatehgarh Sahib, rough site plan was prepared, statements of the witnesses were recorded and ultimately report under Section 173 Cr.P.C. was submitted against both the accused. The accused were charged under Sections 279/304-A IPC disclosing that both the accused while driving the buses rashly and negligently, hit against each other as a result of which accident took place. However, they pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined Dr. S.K. Khanna Medical Officer (PW1), Balram Dutt (PW2), Manjeet Singh (PW3), Jaswinder Pal Singh (PW4), Malook Singh (PW5), Jaspal Singh (PW5), Darshan Singh (PW6), Kishan Dev (PW7), Natha Singh (PW8), Mohan Lal (PW9), Sarup Chand (PW10), Kehar Singh (PW11), Charan Singh (PW12), Ranjit Singh (PW13), Surinder Kaur (PW14), ASI Surjit Singh (PW15), Inspector Gurbax Singh (PW16), Kashmir Singh (PW17) and Rattan Singh Gill (PW18). When examined under Section 313 Cr.P.C. both the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Criminal Revision No.885 of 2000 & Criminal Revision No.918 of 2000 -3- The trial court as well as the first appellate court recorded conviction of both the accused. Arguments heard. Record perused. Be that it may, Hari Singh complainant has not been examined, yet, there being ample evidence of the occupants of the buses, the examination of Hari Singh does not assume importance. He is author of the FIR which is not the encyclopedia of criminal jurisprudence. The offence could be proved otherwise by the eye witnesses or other circumstantial evidence. Balram Dutt (PW2) is not an eye witness to the occurrence, therefore, his testimony qua the accident is also of no consequence. Manjit Singh (PW3), Jasminder Singh (PW4), Malook Singh (PW5), Jaspal Singh (wrongly numbered again as PW5), Darshan Singh (PW6), Krishan Dev (PW7), Natha Singh (PW8) and Mohan Lal (PW9) have not supported the prosecution version and all of them were declared as hostile. Sarup Chand (PW10) has simply identified the dead body of his wife. C. Kehar Singh (PW11) and Charan Singh (PW12) Central Inspector Sirhind are the witnesses of formal nature. Similar are the statements of Ranjit Singh (PW13) and Surinder Kaur (PW14). As such, I am left with the statement of Ranjit Singh (PW13) and Kashmir Singh (PW17). Ranjit Singh was the occupant of the bus No.PJG 3754 belonging to the Punjab Roadways which was driven by Shingara Singh coming from Patiala side and was going towards Sirhind. Though found fault of Shingara Singh driver of the bus No.PJG 3754, yet he has stated that the accident took place due to the fault on the part of both the drivers. He has stated that both the drivers were not driving their buses on the correct side. He has described the width of the road as 20 ft. and has disclosed that there was no other traffic at the time of accident. Surinder Kaur (PW14) was the occupant of the bus No.PJG 7321 and she boarded the bus from Jalandhar for Patiala. She has stated that Santokh Singh, who was the driver of bus bearing registration No.PJG 7321 was not in any way rash or negligent. However, the accident took place for the fault on the part of Shingara Singh. Kashmir Singh (PW17) has stated that he was the occupant of bus bearing registration No.PJG 7321 coming from Khanna to Patiala. The accident took place near village Kharora Kharori. The accused Shingara Singh struck the said bus in the bus coming Criminal Revision No.885 of 2000 & Criminal Revision No.918 of 2000 -4- from Patiala side bearing registration No.PJG 3754. He has stated that Shingara Singh was negligent. The bus bearing registration No.PJG 3754 belonging to the Punjab Roadways was going from Patiala to Khanna and was driven by Shingara Singh, whereas, the bus bearing registration No.PJG 7321 was coming from Jalandhar to Patiala driven by Santokh Singh. As regards, Ranjit Singh (PW13), he was sitting in the middle of the bus. He has admitted that he was sitting at Seat No.22 which is in the middle of the bus, therefore, he having little opportunity to see as to who was at fault, has stated that both the drivers were at fault. Surinder Kaur (PW14), who was sitting in bus bearing registration No.PJG 7321 coming from Jalandhar to Patiala, is the best witness to state about the manner in which the accident took place. She states that Santokh Singh was driving the bus. She and her husband were sitting on the seat which was just after the driver. According to her, the accident took place for the fault on the part of Shingara Singh. Out of three witnesses, who have deposed about the accident, namely Ranjit Singh (PW13), Surinder Kaur (PW14) and Kashmir Singh (PW17), Kashmir Singh (PW17) has stated that the accused Santokh Singh was driving bus bearing registration No.PJG 7321 rashly and negligently, whereas, Ranjit Singh (PW13) has found the fault with both the drivers and Surinder Kaur (PW14) has made a contradictory statement. Once she has stated that the accident took place for the fault on the part of Shingara Singh, but, during cross examination she has stated that the accident took place for the fault on the part of both the drivers. Faced with the situation, I set to examine the photographs and proceed to delineate the scenario created at the time of accident. The photograph Ex.P1 reveals that the bus bearing registration No.PJG 7321 coming from Jalandhar to Patiala driven by Santokh Singh after hitting the bus bearing registration No.PJG 3754 driven by Shingara Singh turned turtle. As an impact of the hitting of the bus by Santokh Singh, the driver side of the bus bearing registration No.PJG 3754 was smashed resultantly, four passengers died and many were injured. Both the photograph Ex.P1 and Ex.P2 reveal that bus bearing registration No.PJG 3754 was on its correct side. It was being driven after leaving more than half of the road meant for the use of on coming vehicles. The photograph Ex.P2 further Criminal Revision No.885 of 2000 & Criminal Revision No.918 of 2000 -5- reveals that bus bearing registration No.PJG 7321 after hitting bus bearing registration No.PJG 3754 proceeded further and after crossing bus bearing registration No.PJG 3754, it turned turtle at its back. It is a matter of common sense that Santokh Singh must be coming while driving the bus bearing registration No.PJG 7321 rashly and negligently, as such, he lost control of the bus and after coming on the wrong side and striking the right side of the bus bearing registration No.PJG 3754 turned turtle. The mechanical report also support this fact. The rashness and negligence could well be gathered from the impact of the striking against the bus bearing registration No.PJG 3754 by the driver of the bus bearing registration No.PJG 7321. Had Santokh Singh not lost the control and it would have been a head on collision then so much damage would not have been caused. As a matter of fact, Santokh Singh while striking into bus tore the bus into two pieces from the right side. The principle of contributory negligence is unknown to the criminal law. As a matter of fact contributory negligence is that if the complainant who may be at fault suffers loss at the hands of the other vehicle coming from the opposite side. The contributory negligence could be applied in the cases where both the parties for some reasons were negligent, but in the criminal law since the said principle is not known, therefore, the court has to probe into the evidence and reach the conclusion as to which party was actually negligent. During this enquiry, following three possible answers could be derived depending upon the circumstances of the case :- 1. The defendant's negligence is known to cause the death or the injury. 2. The deceased or the plaintiff's negligence was solely responsible for the death or injury. 3. The negligence of both the parties caused the death or injury. Unlike the civil law, the criminal law may recognize the joint tort feasors for committing crime against the third, whereas, civil law Criminal Revision No.885 of 2000 & Criminal Revision No.918 of 2000 -6- recognizes the principle of contributory negligence where the accident did not take place for merely fault on the part of one. If the complainant is at fault, then he cannot get undue benefit of his own wrong for example if a pedestrian suddenly crosses a road without taking note of approaching bus there is every possibility of his dashing against the bus without the driver coming aware of it. The driver cannot save accident, however, solely, he may be driving but he cannot be held to be negligent in such a case. Reference, if any, could be made to the judgment delivered in case Mahandeo Hari Lokre vs. The State of Maharashtra, 1972 Crl. L. J. 49. The basic ingredients to prove the rashness and negligence of a vehicle are : (i) driving of a vehicle; (ii) such driving must be so rash or negligent as to endanger human life likely to cause death or injury to any other person. The fact that a vehicle is driven in speed or the fact that the vehicle is not driven in speed cannot, by itself, without judging the situation in which the driver has been placed, be a factor to determine the rashness or negligence. High speed may not, in each case, be sufficient to hold that the driver was rash or negligent. If, however, a person is driving along a 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 any unusual rapid pace. The law or usage of the road is not the criterion of negligence. As 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 distinction between a rash act and a negligent act. Keeping in view the fact that in a criminal case, the court is not to depend upon the principle of contributory negligence, but to determine as to who out of two was actually rash and negligent. It should be noticed that the roads are not meant for the use of vehicles alone. The principle of democracy does not apply to such road users to the extent that they should ignore the pedestrians, cyclists, two wheelers or other small vehicles going on the road. He should not ignore the traffic rules and while driving the Criminal Revision No.885 of 2000 & Criminal Revision No.918 of 2000 -7- vehicle so rashly as to take the life of other road users going on their correct side. He owes a duty towards other persons sitting on the wheels to have their right to use the road. Carefulness is one of the principal duty of a qualified and competent driver on the wheels. The accused Santokh Singh was at fault in the instant case. The width of the road was 20 ft. as revealed from the evidence. As per photograph Ex.P2, the bus bearing registration No.PJG 3754 was on its side and more than half of the road was vacant. The accused Santokh Singh came with such a high speed that he could not control the bus, smashed the right side of the bus and thereafter fell on the right side of the road behind the bus bearing registration No.PJG 3754. In these circumstances, it is often seen that in cases of accident, people are not so much vigilant and conscious about the situation of the road. They remain busy with their business, as such, besides the oral evidence, the facts, circumstances and situation at the spot help the court to reach the conclusion as to who was at fault and responsible for the accident. The skid marks of a bus indicate from which he saw the oncoming vehicle and applied the brakes. The other factors i.e. the situation of the vehicles; the portion damaged; and the breach of duty which was imposed by the law to perform by the respective drivers also contribute to find fault of the persons at fault. However, carrying of the passengers more than prescribed may not be determinative factor but could be taken into consideration along with the other factors. Similarly, speed of the vehicles may not be a determinative factor but it coupled with the other circumstances could be taken into consideration to assess the rashness and negligence. Drunkenness of the driver is also a major factor to determine the rashness. It has been often seen that the Investigating Agencies are very poorly trained to investigate such cases. The Investigating Officers should be quick enough to examine the site forthwith, to pick up the skid marks, to make the mechanical test of the vehicles in order to assess as to what part was damaged. The Investigating Agency also is a failure to take help of the valuers, assessors and Motor Vehicle Inspectors. However, while applying the aforesaid parameters and picking up the thread from the evidence and assess the same in order to find out the fault, then certainly, pendulum falls upon Santokh Singh accused. He while coming from Khanna side, and on seeing the Criminal Revision No.885 of 2000 & Criminal Revision No.918 of 2000 -8- vehicle was duty bound to slow down the bus and allow the on coming bus to pass. Moreover, he should not have driven the bus on the right side of the road and have kept the same on the left side as it may not touch the vehicle coming from the opposite side. Had he been driving his bus on the left side of the road, the accident could be avoided. In these circumstances, I must hold that the petitioner Santokh Singh was at fault. While going to the worst, even if there was some negligence on the part of Shingara Singh though there are no reasons to make such observations, even then, on comparative assessment and appreciation of the evidence, sufficient evidence has come forth to determine that the accused Santokh Singh was negligent. As regards the quantum of sentence, Since four persons had died and 17 were injured within the twinkling of an eye for the fault on the part of Santokh Singh, therefore, he could not seek any indulgence of the court on the quantum of sentence. It has been often seen that the day in and day out, number of road side accidents are alarmingly on the rise. Thousands of people come under the spate of rash driving of the vehicles by the untrained, unqualified and illiterate drivers. Some times no trace of the offender is found and the crime goes unattended and unpunished. Sometimes the people after fleeing from the scene of crime come with variety of defences including identification. These are the rare cases where witnesses dare to say and identify the drivers causing mass-killings and devastation. On account of accidents thousands of families loose their bread, become helpless and live at the mercy of others. As such, these unscrupulous elements indulging in the rash driving need to be strictly criticized. To deal with such people with leniency is likely to send wrong signals to the society and amounts to travesty of justice. Valuable lives are turned into corpus within the twinkling of an eye for the fault on the part of the rash and negligent persons sitting on the wheels. As such I do not deem it a fit case where some leniency could be extended to him. As a result of the aforesaid discussions, revision petition No.918 of 2000 preferred by Shingara Singh is accepted, the impugned judgment qua him is set aside and he is acquitted of the charges framed against him and is directed that he be set at liberty forthwith. Bail bond and Criminal Revision No.885 of 2000 & Criminal Revision No.918 of 2000 -9- surety bond furnished by him stand discharged. Fine, if any deposited by him, be refunded. However, the revision petition No.885 of 2000, preferred by Santokh Singh is dismissed. May 13, 2010 (A.N. Jindal) deepak Judge