1 HIGH COURT OF MADHYA PRADESH: BENCH: INDORE (SINGLE BENCH: HON.MR.JUSTICE U.C. MAHESHSWARI CRIMINAL REVISION NO.168/2011 Amit S/o Gopal Sharma, Age: 30 years, Occupation: Labourer, R/o: Scheme No.78, House No.138, Lasudiya, Indore ... APPLICANT Vs. State of MP Through Police Station Hatod, Indore (MP) ... RESPONDENT For applicant : Shri Piyush Shrivastava, learned counsel. For respondent: Shri R.S.Parmar, learned Panel Lawyer. ----------------------------------------------------------------------------- Whether approved for Reporting:- O R D E R (ORAL) (Passed on 20th December, 2011) Applicant-accused has preferred this revision under Section 397/401 of the Cr.P.C being aggrieved by the judgment dated 2nd February, 2011 passed by XII Addl. Sessions Judge, Indore in Criminal Appeal No.267/2010 affirming the judgment dated 27/4/2010 passed by JMFC, Hatod in Criminal Case No.400/2003 whereby the applicant was convicted under Section 304-A and 337 of the IPC with a direction to undergo for RI for one year with fine of Rs.500/- in the earlier Section and with fine of 2 Rs.500/- in the later, in default of depositing the fine amount, on each of the count further one months RI has been awarded. [2] The facts giving rise to this revision are that on dated 16/11/2003 at about 2.20 PM in the noon, the applicant while driving the bus bearing Registration No. MP04/B-7329 in rash and negligent manner made an accident near Yeshwat Sagar on Hatod- Depalpur road due to such accident the bus turned turtle. Consequently, the conductor of the bus Mannu @ Rakesh died on the spot and some of the persons sitting in the bus namely Radheshyam, Sheela, Ramesh, Hemlata and Pushpa sustained the injuries on their person. On receiving such information at police Station, Hatod Sub Inspector Anil Singh Thakur went to the place of incident and drawn up Dehati Nalishi report (Ex.P.2) on which the FIR (Ex.P.14) was registered. The dead body of the deceased Mannu was sent to the hospital where his postmortem was carried out. The injured persons were also sent to the hospital where after medical examination their MLC reports were prepared. The interrogatory statements of the witnesses were recorded. Applicant was arrested. On completion of investigation, the applicant was charge sheeted for the offence of Section 304-A of the IPC. On evaluation of the charge sheet, the charge of Section 304-A and 337 of the IPC was framed against the applicant. He abjured the guilt on which the trial was held. After recording the evidence, on 3 appreciation of the same, after holding the applicant guilty under the aforesaid offences, he was punished with the above mentioned punishment. On filing the appeal, by affirming the judgment of the trial Court, the same was dismissed on which the applicant has come to this Court. [3] Applicant's counsel, after taking me through the record of the Courts below including the evidence led by the prosecution as well as the exhibited papers of the charge sheet, argued that the prosecution has utterly failed to prove the case against the applicant beyond reasonable doubt as such on proper appreciation of the evidence led by the prosecution has not been revealed that while driving the aforesaid alleged bus, the applicant has committed any negligence or due to his negligental driving the alleged incident was happened, but contrary to such evidence the applicant has been convicted under the wrong premises. In continuation, by referring the depositions of the alleged eye witnesses and the injured witnesses he said that none of them had proved the actual speed of the vehicle on which it could be said that the vehicle was driven in such a fashion which could be said to be the negligent driving. In continuation, he said that in the lack of any specific evidence showing the actual speed of the vehicle, merely on the vague statements of some of the prosecution witnesses that the offending bus was driven in a high speed, it could not be inferred that the bus 4 was driven by the applicant in a rash and negligent manner. By referring to the depositions of some of the eye witnesses he said that the alleged accident took place in order to save a car which was coming from the other side and whenever in order to avoid more harm or at the spur of moment on account of any error of judgment of the applicant the alleged accident was happened, then in such situation the applicant is entitled to extend the benefit of general exception defined under Section 81 of the IPC and could not be convicted for such act. He further argued that is is undisputed fact that the alleged incident took place on Indore-Depalpur District road and in a normal course at the place of the incident the vehicles are plied on some high speed in comparison of the speed of the vehicle in town or village. So in such premises also merely on the word of “high speed”, inference could not be drawn against the applicant for committing the alleged offence. In continuation it was also said that in order to prove the negligence on the part of the applicant, the actual speed of the vehicle could have been proved by the prosecution through scientific investigations by taking the tyre marks of the offending vehicle from the road, some photographs of the road and examining the same by the expert, but it is apparent fact that no effort was made in this regard on behalf of the investigating agency. In such premises the investigation agency has not investigated the matter as per observation of the Apex Court 5 made in the matter of Nageshwar Shri Krishna Choube Vs. State of Maharashtra reported in 1973 MPLJ 240. On such premises he said that the prosecution has failed to prove the direct nexus between any negligent act of the applicant and the injuries to one Mannu by which he succumbed to the same and also the injury sustained by the other victims. In the lack of such evidence, the impugned conviction of the applicant in view of the decision of the Apex Court in the matter of Suleman Rahiman Mulani and another Vs. State of Maharashtra reported in AIR 1968 SC 829 could not be sustained. With these submissions, counsel prayed to set aside the conviction of the applicant by allowing this revision. [4] On the other hand, Shri R.S.Parmar, learned Panel Lawyer, by justifying the impugned conviction of the applicant said that the findings of the impugned judgment, being based on proper appreciation of the evidence and in conformity with law, does not require any interference at this stage. He said that whosoever injured witness has been examined, had categorically stated that the impugned alleged bus was driven by the applicant in a rash, negligent and jig jag manner and that was only cause of the accident and therefore, even in the lack of the scientific investigation as observed by the Apex Court in the above mentioned case, the person like applicant could not be acquitted from the alleged charge. He fairly conceded that the aforesaid scientific investigation was 6 not carried out by the prosecution agency and prayed for dismissal of this revision. [5] Having heard the learned counsel at length and keeping in view their arguments, I have carefully gone through the records of both the Courts below along with the impugned judgment. [6] Although in the course of the argument, applicant's counsel stated that the identity of the applicant as driver of the offending bus has not been proved by cogent and reliable evidence but such argument has not appealed me because the finding of the Courts below holding that the alleged bus was driven by the applicant is based on proper appreciation of the evidence and also the same being concurrent finding of both the Courts below, could not be interfered under the revisional jurisdiction of this Court. [7] It is undisputed fact that on the date of the incident, offending bus was driven by the applicant, the same met the alleged accident at the place shown by the prosecution in which one Mannu died and some of the persons sitting inside the bus sustained some minor injuries. Now the Court has to answer in this revision whether the alleged accident was happened due to any negligence of the applicant or the same was happened in his error of judgment to step down the bus from the side of the road just to save a car which was coming from the other side. [8] In order to prove the speed of the bus, prosecution had 7 examined the injured witnesses namely Jagdish (PW.1), Sheela (PW.2), Hemlata (PW.8), Ramesh (PW.9) and Radheshyam (PW.10). On recording their depositions they have categorically stated that they were sitting inside of the bus and the same was driven by the applicant in high speed but any of them has not stated the actual speed of the bus. So far the speed of the vehicle is concerned, one person may say the speed of 20-30 kilometer per hour to be a high speed while the other person may say 60-70 kilometer to be a normal speed of the vehicle. So in order to prove the negligence on the part of the applicant the one ingredient, the actual speed of the vehicle would have been proved by the prosecution by taking out the scientific investigation as laid down by the Apex Court in the above cited case of Nageshwar (supra) in which the Supreme Court has observed as under:- “But if it appears that material evidence has not been collected by the prosecution for reasons which are wholly unconvincing such as when min a case like this no attempt is made to ascertain the speed of the vehicle by measure by the tyre marks on the road and the hight of the kerb, no photograph is taken of the situation of the bus, the electric pole and the persons injured and dead as a result of the accident” “the evidence actually produced leaves a serious lacuna in bringing home the guilt of the accused, then, merely because the nature of the accident prima facie requires an explanation from the driver would not be sufficient to sustain his conviction if the truth of his explanation, which though not conclusive is not liable to rejection outright, could have been appropriately judged if the evidence left out by the prosecution had been produced. The fact that it was not the first occasion of inefficient or perfunctory investigation could 8 not serve as an argument for placing premium on the inefficiency of the investigating agency and for convicting the accused which could only be done if the evidence had established his guilt beyond reasonable doubt”. [9] In view of the aforesaid, it is held that the prosecution has failed to prove the actual speed of the vehicle. Thus mere on the vague statement of the examined witnesses stating to be high speed of the offending vehicle, it could not be inferred that the vehicle was driven on a district road by the applicant in a negligent manner. [10] On perusing the deposition of Jagdish Pandya (PW.1) in para six, I find that such witness has stated that the alleged place of the incident being Indore-Depalpur road is having the heavy traffic and the same being single road, the driver of the vehicle is bound to step down the vehicle from the road towards the side track to save and cross the vehicle coming from the other side. In continuation he stated that before happening the accident a car was coming from the other side and in order to save such car, the driver of the offending bus step down the bus from the main road towards the side track and in such process the alleged accident was happened. The said version was also stated by Sheela Pandya (PW.2), the injured witness in her in-chief. In para one of her deposition she stated that when the bus was returning from Yeshwant Sagar, on the way in order to save a car which was 9 coming from the other side the applicant step down the offending bus from the road to the side track and there was some distance between the road and the side track and due to that their bus was turned turtle and the incident was happened. The aforesaid account of the eye witnesses could not have been ignored by the Courts because as per the decision of the apex Court in the matter of Nagehswar (supra), the evidence of such eye witness is very relevant to prove the circumstances of the alleged incident. In the said cited case, it is observed as under:- “6........................................................Apart from the eye-witnesses, the only person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents like the present is the driver himself or in certain circumstances to some extent the person who is injured..............................” [11] Apart from the above, if any act is done by the alleged accused, in order to avoid some more harm without any intention to commit the offence, then such act comes under the purview of Section 81 of the IPC and the applicant is entitled for extending the benefit of such general exception. Such Section 81 of the IPC reads as under:- “81. Act likely to cause harm, but done without criminal intent, and to prevent other harm.---Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Explanation.---It is question of fact in such a 10 case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm”. [12] Keeping in view the aforesaid provision of Section 81 of the IPC, on examining the case in hand, such provision is applicable to the present case. So in such premises also the conviction of the applicant awarded by the Courts below could not be sustained. [13] In view of the aforesaid discussion, it is held that the Courts below have committed an error in holding the aforesaid conviction against the applicant. The same deserves to be set aside. [14] Therefore, by allowing this revision, the impugned judgment as well as conviction and sentence of the applicant is hereby set aside and he is acquitted from the above mentioned charge of Section 304-A and 337 of the IPC. His bail bonds are hereby discharged. Amount of fine, if deposited by the applicant, then after proper verification, the same be refunded to him. [15] The revision is allowed as indicated above. (U.C. MAHESHWARI ) JUDGE VM