IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.188 of 2002. Judgment reserved on:29.12.2008. Date of decision: 6th January, 2009 State of H.P. .. ..Appellant Versus Niti Raj @ Gogi .. ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? yes For the Appellant: Mr.Rajesh Mandhotra, Dy.A.G. For respondent: Mr.Bhuvnesh Sharma, Advocate. _____________________________________________________ Deepak Gupta, J. This Appeal by the State is directed against the judgment dated 17.1.2002 passed by the learned Sessions Judge, Hamirpur. By the impugned judgment the learned Sessions Judge allowed the appeal filed by the respondent-accused and set-aside the judgment of the learned trial Court whereby the accused has been convicted of having committed offences punishable under Sections 279, 337 and 338 IPC and undergo simple imprisonment for six months and to pay fine of Rs.1000/- under Section 279 IPC and also to undergo simple imprisonment for one year and to pay fine of Rs.1000/- and further to undergo simple imprisonment for two months under Section 338 IPC. In case of default of payment of fine the accused was to undergo simple …2… imprisonment for two months under each count. The substantive sentences were directed to run concurrently. The admitted facts are that on 25.8.1994 the accused was driving a mini motor cycle on a Dangri- Kangoo road. It is also not disputed that the said motor cycle hit the complainant Rattan Chand causing injuries to him. A complaint was lodged with the police and thereafter investigation was conducted. Challan was filed. The accused was summoned and he put in appearance. He pleaded not guilty and claimed trial. The learned trial Court convicted the accused as aforesaid. Aggrieved by the said judgment the accused filed an appeal which appeal has been allowed by the learned Sessions Judge. Aggrieved by the said judgment the present appeal has been filed by the State. Injured Rattan Chand was examined as PW-1. According to him he was travelling on the Chintpurani- Sarahan bus and got down at Dangri. Thereafter, he and PW-6 Rajinder were going towards their village. This witness states that he was walking on the left side of his road and suddenly accused came from the opposite side driving a motor cycle at a high speed. The accused hit the witness and he fell down next to the drain. His right leg was fractured. On his raising an alarm, PW-2 Balbir Singh and other persons reached the spot. Thereafter, the Patwari and Balbir picked the injured from the drain. The accused was also injured. Both were taken to the hospital. He admitted the suggestion …3… that near the site of the accident there is a curve. He states that when the accident took place it was dark and the light of the motor cycle was not on. He has been confronted with the statement Ext.PA wherein the factum that the light was not on has not been recorded. A suggestion has been put to him that the accused suddenly applied the brakes and therefore the motor cycle skidded and hit the injured. He could not give the speed of the vehicle. PW-6 Rajinder Kumar and the injured got down from the bus together. He has supported the prosecution version. He also states that the motor cycle came at a high speed and hit Sh.Rattan Chand who fell down into the drain. Thereafter, the motor cycle moved another 5- 6 yards and also fell down. He has clearly stated that they were walking on the left side of the road and the Moped was at a high speed. In cross examination he denied the suggestion that the motor cycle was on its left side. He has also denied the suggestion that the injured was walking on the middle of the road. He has also denied the suggestion that the accused applied the brakes to the Moped and therefore the same skidded. PW-2 Balbir is not an eye-witness. He however states that when he was in his house he heard the cries of the injured person and went to the spot. He saw accused lying injured on the road. The motor cycle was lying on the left side of the road. The injured Rattan Chand was on the left side of the road …4… and was crying with pain. PW-6 Rajinder was also on the spot. Thereafter, they collected some other persons and removed the injured to the hospital. He has denied the suggestion that the accident took place on a curve but states that the accident took place near a curve. He denied the suggestion that there was any sand on the road or that the motor cycle skidded on the sand. PW-3 carried out the mechanical examination of the motor cycle and found the same to be in order. He stated that there were marks on the right side of the motor cycle. The word used in Hindi is “ragar” which has wrongly been translated by the learned Judge as skid. PW-9 Dr.P.R. Katwal had examined the injured and stated that some of the injuries on his person were simple and one injury i.e. on his leg was grievous. PW- 10 has prepared the site plan Ext.PW-10/B. The learned trial Court convicted the accused holding that he was guilty of rash and negligent driving. The learned Sessions Judge acquitted the accused on the ground that the prosecution has failed to prove beyond reasonable doubt that the accused was driving the vehicle in such a rash and negligent manner so as to endanger human life. He has while acquitting the accused relied upon the fact that the witnesses have not stated that the accused was driving the vehicle in a rash manner. According to him the mere fact that the motor cycle was being driven at a high speed cannot be …5… taken as a gospel truth to hold that the vehicle was being driven in a rash and negligent manner. The learned Sessions Judge also by some rather convoluted reasoning come to the conclusion that the fracture was not caused by the accident but by the fall. The approach of the learned Sessions Judge was highly pedantic. It is not necessary for a witness to say that the driver of an offending vehicle was driving the vehicle rashly. The issue whether the vehicle was being driven in a rash and negligent manner is a conclusion to be drawn on the basis of evidence led before the Court. What is rash and negligent driving and what is criminal rashness has been the subject matter of a number of decisions. 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 …6… 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 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 …7… 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. In Syed Akbar v. State of Kamataka, (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. …8… 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.” 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. In the present case some factors stand out clearly. The width of the pucca portion of the road was 10 ft. 6 inches. On the left side while going from …9… Dangri to Kangoo there was 7 ft. kacha portion and on the other side there is 11 ft. of kacha portion. The total width of the road was about 28 ft. The injured was coming from Dangri side and was walking on the left side of the road. This has been stated both by the injured as well as by PW-6. This fact is apparent also from the fact that after he was hit the injured fell into the drain. A drain is always on the edge of the road. The learned Sessions Judge held, and it has also been argued before me, that nobody has stated that the motor cycle was on its wrong side. This fact is apparent from the statement of the witnesses who state that they were on the extreme left side and the motor cycle which was coming form the opposite side hit them. It does not need a genius to conclude that the motor cycle was on the extreme right side of the road and therefore on the wrong side. Both the witnesses have stated that the motor cycle was at a high speed. In evidence, it has also come on record that it was dark and there was no light on the motor cycle. Therefore, from the evidence it is apparent that the accused was driving the motor cycle at a high speed on the wrong side of the road after dark without lights. These factors clearly show that the accused behaved in a reckless manner and he should have been aware that by such reckless and rash driving he may hit anybody on the road and cause injury to some person. The act of the accused is such a wanton that it must be …10… presumed that he had the knowledge that his act would cause injury to any person on the road. He failed to take proper care and caution. He did not drive on the left side of the road. He drove without a light and that too at a high speed. This is not mere negligence but gross and culpable negligence amounting to criminal negligence. The conclusion of the learned trial Court that the accused was guilty of rash and negligent driving was absolutely correct. The judgment of the learned Sessions Judge, in my view, is wholly incorrect. The learned Sessions Judge approached the matter in a highly technical manner. In fact his finding that the injured suffered the fracture because of a fall is totally against the evidence. The accused did not deny the fact that the accident had taken place. He also did not deny that his motor cycle had hit the leg of the injured. Even if the fracture took place due to a fall it was directly attributable to the accident since the accused would not have fallen in case the accident had not taken place. Keeping in view the aforesaid discussion, I am clearly of the view that the judgment of the learned Sessions Judge is totally erroneous and is accordingly set-aside. The judgment of conviction passed by the learned trial Court is upheld. The sentence imposed by the learned trial Court, in my opinion, is reasonable …11… and calls for no interference. The accused is directed to surrender and undergo the sentence imposed upon him. The appeal is allowed in the aforesaid terms. January 6, 2009. ( Deepak Gupta ), PV Judge