-1- Criminal Revision No.2260 of 2002. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Revision No.2260 of 2002. Date of Decision: February 09, 2010. Tarsem Singh ... Petitioner VERSUS The State of Punjab ...Respondent 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? CORAM : HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr.R.S.Ghuman, Advocate, for the petitioner. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. Petitioner Tarsem Singh faced trial under Sections 279 and 304-A of the Indian Penal Code (hereinafter referred to as `the Code') on the allegation that on 22.8.1995 at about 12 noon, while he was employed as Driver in the Punjab Roadways -2- Criminal Revision No.2260 of 2002. and was driving Bus No.PB-12B-8908, rashly and negligently, hit the bus against the Ambassador Car bearing registration No.PUP-462, being driven by Ram Raj. As a result of the accident, Darshan Kumar fell out of the car when the front door of the car opened with the impact of the accident. Darshan Kumar succumbed to the injuries received by them in this accident. The accident was witnessed by complainant Ved Pal Dhir, his wife Rani Dhir and his Driver Ram Raj, who were occupants of the ill-fated Car being driven by Ram Raj. The petitioner was convicted by the trial Court under Sections 279 and 304-A of the Code. For the former offence, he was sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs.1,000/-, in default whereof to undergo further rigorous imprisonment for fifteen days. For the latter offence, he was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.2,000/-, in default whereof to undergo further rigorous imprisonment for one month. Both the sentences were ordered to run concurrently. It was further ordered that out of the fine imposed, if recovered, Rs.2,000/- be given to the family of the deceased as compensation. The appeal filed by the petitioner against the judgment of conviction and the sentence order passed by the trial Court was dismissed by the lower appellate Court. Hence this revision petition. I have heard the learned counsel for the parties and have gone through the records of the case. Learned counsel for the petitioner has argued that both -3- Criminal Revision No.2260 of 2002. the Courts below have not taken into account the evidence furnished by the prosecution in its right perspective. He argued that the accident in this case had taken place at the Chowk where the light system was not working. Despite the fact that the petitioner was driving the bus at a slow speed and in a careful manner, the car in which the deceased was sitting struck against the bus. According to the learned counsel, the accident had taken place due to the negligence of the Driver of the Car. He pointed out that Ram Raj (P.W.7), who was driving the ill-fated Car, admitted that the Bus was on the correct side of the road when the accident took place. Learned counsel for the petitioner referred to the evidence of Dr.Birinder Singh (P.W.2), who had conducted autopsy on the dead body of Darshan Kumar, whereby he had found a few tyre marks on the left side of the crushed face of the deceased and argued that it being nobody's case that the body of the deceased had come under the tyre, the medical evidence belies the prosecution version. In this case, the prosecution examined two eye- witnesses i.e Rani Dhir (P.W.6) and Ram Raj, Driver of the ill- fated car (P.W.7). Complainant Ved Parkash Dhir had died before his deposition in Court. Ram Raj (P.W.7), in his cross-examination stated as under:- “ This accident took place at the centre crossing. The bus was on the correct side of the road when the accident took place. There -4- Criminal Revision No.2260 of 2002. are traffic lights on the chowk but those were not working at that time.” “xx xx. The front side of the bus was damaged because of this accident.” . Rani Dhir (P.W.6), another eye-witness of the accident, stated that the offending bus came from the left side of the ill-fated car and struck against the car. The driver of the bus was driving it at a very high speed. In the cross-examination, she stated that she did not know which side of the Bus struck the car. She further stated that Darshan Kumar (deceased), after falling down from the Car, did not struck against the bus. Photographs of the accident which are on the record of this case show that the road where the accident took place is a very wide road. The ill-fated car was crossing the red lights while being driven the right side of the road and the bus was crossing the lights from the left side of the car. Right side of the bus struck against the left side of the car. Darshan Kumar was occupying the front side beside the Driver. As a result of the accident, Darshan Kumar fell out of the car when the door of the car opened with the impact of the accident. Darshan Kumar succumbed to the injuries received by them in this accident. Dr.Birinder Singh (P.W.2), who had conducted autopsy on the dead body of Darshan Kumar, had found a few tyre marks on the left side of the crushed face of the deceased. However, it is nobody's case that the body of the deceased had come under the -5- Criminal Revision No.2260 of 2002. tyres. It appears to be such an accident which cannot be said to be because of rash and negligent driving of the accused/driver only. Besides, Ram Raj (P.W.7), driver of the Car admitted that the accident took place at the centre crossing and the bus was on the correct side of the road when the accident took place. The photographs available on the file also suggest that the accident had taken place in the centre of crossing and both the sides had not bothered to see that the vehicle was coming from the other side. It shows it was a case of contributory negligence. The contributory negligence in realm of torts may be an extenuating circumstance to mitigate the liability to pay the damages but that cannot be a sole decisive factor to avoid the liability of compensation. However, in criminal jurisprudence if the ill-fated vehicle had also contributed for the causation of the accident by contributory negligence and in the absence of any material to show that only on account of rash and negligent driving of the accused/driver the accident has occurred, it would not be permissible under such circumstances to hold the accused driver guilty of committing an offence under Sections 279 and 304-A of the Code. The law keeps a clear distinction between cases of composite negligence and contributory negligence. In the cases of composite negligence, the drivers of both the vehicles would be guilty of rash and negligent driving. Whereas in a case of contributory negligence, no penal liability can be fastened on the accused/driver. It is obviously for the reason that but for the contributory negligence, the accident could not have -6- Criminal Revision No.2260 of 2002. occurred. For the aforesaid reasons, I am of the considered opinion that the prosecution has not been able to prove its case against the petitioner beyond all reasonable doubts. Consequently, this petition succeeds. The same is, accordingly, allowed, the impugned judgments and the sentence orders passed by both the Courts below are set aside and the petitioner is acquitted of the charges framed against him. February 09, 2010. ( MOHINDER PAL ) ak JUDGE