IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 228 of 2004. Judgment reserved on : 15.3.2011. Decided on: March 18, 2011. ____________________________________________________ State of Himachal Pradesh. ……..Appellant. Versus Manohar Singh. …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting1? Yes. For the appellant : Mr. A.K.Bansal, Addl. Advocate General. For the respondent : Mr. Janesh Gupta, Advocate, vice Mr. Neeraj Gupta, Advocate. _______________________________________________________ SURINDER SINGH, J.: The respondent is driver of the HRTC Bus. In Police challan No.117/2 of 1999, he was convicted for the offences punishable under Sections 279, 337, 338 and 304-A of the Indian Penal Code, for causing accident, wherein 12 passengers died on the spot, 2 succumbed to their injuries later and few others sustained simple as well grievous injuries, thus, he was sentenced by the learned trial Court as under:- Whether reporters of the Local papers are allowed to see the judgment? - 2 - Offence under Section Sentence Section 279 I.P.C. Simple Imprisonment for six months and fine of `1,000/- Section 337 I.P.C. Simple Imprisonment for six months and fine of `500/- Section 338 I.P.C. Simple Imprisonment for two years and fine of `1,000/- Section 304-A I.P.C. Simple Imprisonment for two years and fine of `5,000/- with default clauses. All the aforesaid sentences were ordered to run concurrently. 2. Respondent herein, preferred Cr.Appeal No.15-S/10 of 2003/01 against his conviction and sentence in the Court of Sessions, which came to be decided by the learned Additional Sessions Judge (Fast Track Court), Shimla, whereby his conviction and sentence aforesaid were set-aside, consequently acquitted vide its judgment dated 27.2.2004, which has been challenged by the State in the present appeal. 3. Respondent faced the trial on the allegation that on 9.6.1999, he was the driver of HRTC Bus bearing registration No.HP-10-0326. On that very day, it was enroute to Rohru via Sansog and was full - 3 - of passengers. At about 7.30 a.m., it went off the road down into a Nallah, while negotiating the curve, near the place known as “Nullia”, falling in Police Station Jubbal. 4. On getting information of the accident, police rushed to the spot and recorded statement of PW6 Goverdhan Singh under Section 154 of the Code of Criminal procedure, which culminated into FIR No.49/99 (Ex.PW11/A). Respondent-driver also sustained the injuries. He alongwith other seven injured passengers were removed to the hospital. Police prepared site plan Ex.PW12/A of the place of accident, took photographs and recorded the statements of the witnesses. The dead-bodies were subjected to the postmortem. Two injured Balmu Devi and Kuncha Devi succumbed to their injuries in the hospital. The postmortem of their dead-bodies was performed. 5. PW-10 Jhirmu Ram and Kumari Geeta sustained grievous, whereas the Tula Ram and Parkash Chand suffered simple injuries. 6. The bus was got mechanically examined from PW13 HC Gian Chand Police mechanic. On the - 4 - conclusion of investigation, police found that the accident was because of the mechanical defect in the bus which was already in the knowledge of the respondent-driver but despite that he drove it off which caused the accident. 7. On the appraisal of the evidence of the prosecution, the learned trial Court convicted and sentenced the respondent as aforesaid and in appeal, he was acquitted, on the ground that the accident was not attributable to rash or negligent driving as alleged. 8. Mr. A.K. Bansal, learned Additional Advocate General forcefully submitted that it was a serious accident, the approach of the learned first appellate Court was not correct. The accident took place due to his rash and negligent driving despite knowing the fact that the bus in question had developed a mechanical defect still he chose to drive it on the highway. He also submitted that the road was wide enough. Normally the accident should not have taken place and the respondent failed to discharge the onus upon him, therefore, applying the doctrine of ‘res ipsa loquitur’ the offences stood - 5 - proved against the respondent beyond reasonable doubt and the acquittal recorded by the Court of Sessions deserves to be converted into conviction. 9. Shri Janesh Gupta, learned counsel for the respondent vehemently argued that the doctrine of ‘res ipsa loquitur’ does not apply in the instant case. To substantiate his argument, he cited the judgment of the Apex Court passed in Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh [ AIR 2000 Supreme Court 2511]. He further argued that the defect in the vehicle i.e. breaking of ‘leaf spring’ had suddenly developed, which caused accident. It was not in the knowledge of the respondent, therefore, the acquittal of the respondent may not be interfered with. 10. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. 11. No doubt in the instant accident, 14 persons died and many other received the grievous as well as simple injuries but the Court has to ward its all the prejudices against the motorist and has to decide the case on merits in accordance with the provisions of law. Therefore, I proceed to examine - 6 - factual aspects of the case as borne out from the evidence on record, on legal parameters. 12. In his statement under Section 154 of the Code of Criminal Procedure Ex.PW6/A, Goverdhan Singh (PW6) complainant did not mention about the cause of accident. He alighted from the bus near village “Nullia” and the accident took place at a distance of 1½ Kilo Meter ahead while negotiating the curve. Thus, he is admittedly not an eye witness, but still he attributed the cause of accident to the rash and negligent driving of the bus by the respondent without referring to any particular instance, so long he travelled in the said bus. Pertinently when examined in the Court, he improved his version and voluntarily stated in his examination-in-chief that the respondent had told him that the some defect had cropped up in his vehicle, but when confronted with his statement Ex.PW6/A, it did not find mentioned therein, thus it was an improvement. He was also declared hostile by the prosecution on the allegation that he was suppressing the truth. Significantly when he was confronted with his statement Ex.PW6/A aforesaid with respect to the accident in question, he totally disowned his - 7 - statement and also denied having given the statement portion “Y” to “Y” to the effect that the accident in question took place on account of rash and negligent driving by the respondent. Even PW3 Attar Singh did not support prosecution case, he was also declared hostile. PW5 Chatter Singh stated that no accident had taken place in his presence, nor he could say who was at fault. 13. PW2 Kushal Singh is another passenger. He also got down from the bus about one kilo-meter prior to the place of accident. He did not say what was the cause of the accident, but in cross-examination, he stated that the respondent-driver was saying that the ‘spring-leaf’ of the bus had broken. 14. But, PW10 Jhirmu Ram stated having made the statement for the first time in the Court that the respondent was driving the vehicle in an irresponsible manner, but did not spell out his above acts, but stated that the driver told that some defect had developed in the bus. 15. The Investigating Officer PW12 SI Nain Singh admitted that at the place of accident, there was a narrow curve on the road, which was - 8 - descending. He did not over-rule the possibility of accident on account of breaking of “spring leaf”. 16. PW13 HC Gian Chand, a departmental mechanic stated that on examining the accidental bus, he issued report Ex.PW13/A and admitted that the “spring leaf” of the driver side was found broken and by this defect, the bus could drag towards the other side of the road. 17. In his statement under Section 313 of the Code of Criminal procedure, the respondent admitted the accident, but denied his rash and negligent act of driving. 18. Police also took into possession the Registration Certificate of the vehicle, the photocopies of which is at page-159 of the record, which shows that the certificate of fitness was issued to it in the year 1998, which was valid upto 6.1.2000, which covers the period of accident. 19. According to PW9 HC Subhash Kumar, he had taken into possession the duty abstract Ex.PW9/A of the respondent and defect register of the vehicle, whereby the respondent got noted down the defects of the vehicle, but it did not find light of the day - 9 - during the trial of the case. When the defects were got notified, it becomes the duty of the owner of the vehicle to get it corrected. With-holding of this very important document cast a serious doubt on the probity of the prosecution case. Rather if produced, it might have supported the case of the respondent- accused, hence, adverse inference needs to be drawn. 20. On the critical examination of the aforesaid evidence, in my opinion, the rash or negligent driving by the respondent stands not proved. As a matter of fact, “rashness” and “negligence” are not the same things. Mere “negligence” cannot be construed “rashness”. It is not understood as to what act of “negligence” is attributed to the respondent. Further there are also degrees of “negligence” and “rashness” and in order to amount the ‘criminal rashness’ or ‘criminal negligence’ one must find that the “rashness” has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act - 10 - with recklessness and indifference to the consequences. The words “rashly and negligently” are distinguishable and one is exclusive of the other. The same act cannot be “rash” as well as “negligent”. The version of one or two witnesses, as discussed above that the driver had told that the ‘spring-leaf’ of the bus had broken, is an improved version. It was not initially the case of the prosecution. 21. The mechanical report as referred above shows that the driver side ‘spring-leaf’ was broken and this ‘spring-leaf’ could also brake after the accident or even at the time of negotiating the curve which could drag the bus towards one side. Thus, there are two views deducible. Investigating Officer stated that the road was narrow and the accident must have occurred due to breaking of ‘spring-leaf’ strengthen the view favouring the accused. Further, there is nothing on record that this defect was patent or latent. The Court cannot read between the lines and onus lies on the prosecution to prove the case beyond reasonable doubt in accordance with law. 22. In criminal cases, the amount and degree of negligence are the determining factors, to which - 11 - the prosecution has failed to prove in the aforesaid facts and circumstances. Further to hold the respondent guilty on the basis of doctrine of ‘res ipsa loquitur’ is also quite unjustified. In Syad Akbar vs. State of Karnataka [ AIR 1980 SCC (Cri) 59, the Supreme Court observed that the rule of ‘res ipsa loquitur’ in reality belonged to the law of torts. Where negligence was in issue, the peculiar circumstances constituting the event or accident, in a particular case might themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. If the cause of the accident was unknown and no reasonable explanation as to its cause was coming forth from the accused, in such cases the maxim ‘res ipsa loquitur’ might apply. The event or accident must be of a kind which did not happen in the ordinary course of thing if those who had the management and control of the thing had exercised due care. Further, the event which caused the accident must be within the control of the accused. The reason for the second requirement was that where the accused had control of the thing which caused the injury, he was in a - 12 - better position than the complainant to explain how the accident occurred. 23. Because of the rules of burden of proof in criminal cases, presumption of innocence and proof beyond reasonable doubt, the maxim res ipsa loquitur could only create an aid in the evaluation of evidence. An application of the general method of inferring one or more facts in issue from circumstances proved in evidence. In this view, the maxim did not require the raising of any presumption of law which must shift the burden on the accused. It only, when applied properly, allowed the drawing of a permissive inference of fact, as distinguished from a mandatory presumption, properly so called, having regard to the totality of the circumstances and probabilities of the case. The maxim is only a means of estimating logical probability from the circumstances of the accident. Hence, the maxim res ipsa loquitur could be used only as a convenient ratiocinative aid i.e.aid in assessment of evidence. This principle of law was also reiterated by the Apex Court in Mohammed Aynuddin @ Miyam’s case in [ AIR 2000 Supreme Court 2511] supra. - 13 - 24. In the present case, the possible explanation of the respondent-driver is that he was unaware of even the possibility of the accident which took place. It could be so. When the vehicle was moving forward, his focus normally would have been towards negotiating the curve at a road which was not wide enough, as stated by the Investigating Officer and, if in that event, the “spring-leaf” had broken and dragged the vehicle off the road, would not fasten him with the criminal negligence. Some further evidence is indispensibly needed to presume that the bus fell off the road due to the negligence of the bus driver. Such further evidence is lacking in this case. Therefore, the Court is disabled from concluding that the accident in question took place because of the negligent driving of the bus by the respondent. The corollary thereof is that the acquittal of the respondent recorded by the learned Additional Sessions Judge cannot be converted into conviction. As such, the appeal is devoid of any merit, hence dismissed. - 14 - 25. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. Send down the records. (Surinder Singh), Judge. March 18, 2011. (Pds)