Mohinder Singh v. State of Haryana

offence punishable under Sections 279, 337, 338 and 304-A IPC vide FIR No.252 dated 19.07.1989 by the police of Police Station Guhla, District Kaithal, in the manner indicated here-in-above.

4. After completion of the investigation, final police report/challan was submitted against the petitioner.

5. Having completed all the codal formalities, the petitioner was charge-sheeted for the commission of offence punishable under Sections 279, 337 and 304-A IPC by the trial Magistrate vide order dated

11.12.1989. As the petitioner did not plead guilty and claimed trial, Crl. Revision No.1366 of 2001 3 therefore, the case was slated for evidence of the prosecution.

6. The prosecution in order to substantiate the charges framed against the petitioner, examined PW1-Manohar Lal ASI, in whose presence on the date of accident, both the buses were taken into possession vide recovery memo (Ex.PA) by Anil Kumar, Sub Inspector.

7. The evidence of PW14-ASI Sudershan Kumar is only to the effect that on receipt of statement of Ramesh Chand son of Pirthi, he recorded the formal FIR(Ex.PW13/A) which bears his signatures.

8. PW15-Shiv Kumar, Inspector, Haryana Roadways, who had taken the offending bus on superdari vide superdarinama(Ex.PW14/A).

9. PW2-Ramesh Kumar, Photographer proved the photographs (Ex.PW2/A to Ex.PW2/E) of the place of occurrence.

10. PW8-Dr.R.K.Chaudhary, conducted the post-mortem examination on the dead body of Hardwari Lal(deceased) son of Balu Ram on 22.07.1989 vide PMR (Ex.PW8/A).

11. PW10-Dr.B.B.Kakkar, deposed that ten injured persons were admitted in the Primary Health Centre, Siwan with the history of road side accident. He medico legally examined Hardwari Lal(deceased) son of Balu Ram, vide MLR ( Ex.PW10/D) and the diagram(Ex.PW10/E) showing the seats of injuries. PW10 also medico legally examined other injured persons.

12. PW12-Dr.R.C.Goel, medico legally examined Ramesh Chand- complainant vide MLR (Ex.PW12/A) and diagram (Ex.PW12/B) showing the location of injuries.

13. Likewise, PW3-Mahal Singh, driver of other bus No.HRQ 4467, involved in the accident, stated that on 19.07.1989, he was going from Kaithal to Cheeka and when his bus reached in front of Farm House of Dillu Ram, Ex. MLA, the offending bus came from the opposite side which was being driven by the petitioner. He maintained that suddenly two cyclists came in front of the offending bus, the driver turned the same in order to save them and the bus became out of his control and caused the accident. He further stated that none of the drivers was at fault for causing the accident. In cross-examination, PW3 admitted that on that day, there was mud on the road due to rainy season and the road was wet and slippery.

14. Sequelly, PW4-Sunder Lal, who was travelling in another bus deposed that when their bus reached near the Farm House of Dillu Ram, Ex. Crl. Revision No.1366 of 2001 4 MLA, the offending bus came from the opposite direction at a very high speed and hit their bus. The occupants of both the buses sustained injuries. In cross-examination, PW4 admitted that there was a curve in the road near the place of occurrence and the offending bus by chance struck against the other bus.

15. PW5-Balkaur, who was also travelling in the other bus feigned ignorance about the manner of the accident and did not support the prosecution case.

16. Similarly, PW6-Bhagat Ram stated that when their bus reached near the Farm House of Dillu Ram, Ex. MLA, the offending bus came from the opposite side being driven by its driver at a very high speed and negligent manner and caused the accident, due to which passengers travelling in both the buses sustained injuries. PW6 has categorically maintained that the accident in question had taken place due to contributory negligence of both the drivers. In cross-examination, PW6 has admitted that there was a curve in the road near the place of occurrence and two cyclists suddenly appeared in front of the offending bus and the petitioner turned his bus in order to save them and the accident took place by chance.

17. PW7-Ramesh Chand, complainant, who put the police machinery into motion has also stated that when their bus reached near the place of occurrence, two cyclists suddenly appeared in front of the bus and the petitioner turned his bus in order to save them. PW7 did not support the prosecution case and was declared hostile.

18. According to PW9-Gurcharan Singh, the petitioner was not at fault in causing the accident and he was also declared hostile.

19. PW11-Rohtas, feigned ignorance about the manner of the accident and did not support the prosecution case.

20. The next to note is the testimony of PW13-Joginder Pal, an eye witness, who has stated that on 19.07.1989, he was going from Cheeka to Kaithal in the bus and when it was negotiating the curve near the Dera of Dillu Ram, accident between the two buses had taken place. He also maintained that the petitioner was driving the bus at a very high speed on wrong side and the accident took place due to his negligence. In cross- examination, he admitted that the name of the driver of the offending bus was ascertained later on. Crl. Revision No.1366 of 2001 5

21. The last to note is the testimony of PW16-Darshan Singh, who also declared that accident between the two buses had taken place in which he sustained injuries. However, he could not say as to who was negligent in causing the accident. It will not be out of place to mention here that the prosecution did not examine Anil Kumar, main Investigating Officer in this case despite more than sufficient opportunities.

22. After the close of the case of the prosecution, the statement of the petitioner was recorded as contemplated under Section 313 Cr.P.C. He stoutly denied the prosecution evidence in its totality and pleaded false implication. However, he did not produce any evidence in defence despite adequate opportunities.

23. The Trial Magistrate after considering the evidence on record, convicted and sentenced the petitioner vide impugned judgment of conviction and order of sentence in the manner indicated herein above.

24. Aggrieved by the same, the appeal filed by the petitioner was also dismissed by the learned Additional Sessions Judge, Kaithal, vide impugned judgment dated 01.09.2001.

25. The petitioner still did not feel satisfied with the impugned judgments of conviction and order of sentence and filed the present revision petition. That is how I am seized of the matter.

26. Assailing the impugned judgments, at the very outset, learned counsel for the petitioner has contended with some amount of vehemence that almost all the eye witnesses, who were travelling in their respective buses, at the time of accident, did not support the prosecution version at all. The argument is that all the essential ingredients of Sections 279, 337 and 304-A IPC are not substantiated by the credible evidence of the prosecution. So much so, the main investigating officer has not been examined by the prosecution. Raising a variety of arguments in all, according to the learned counsel for the petitioner that there is no cogent, reliable and trustworthy evidence to prove that the accident in question had taken place due to rash or negligent driving of the petitioner.

27. Hailing the impugned judgments, on the contrary, learned State Counsel has urged that no doubt most of the witnesses did not support the prosecution version as such, but according to him, the statements of PW4, PW6 and PW13 are sufficient to prove the guilt of the petitioner. Crl. Revision No.1366 of 2001 6

28. Possibly no one can dispute that the cardinal fundamental principles of criminal law/jurisprudence have to be kept in focus, while deciding such criminal cases. Some of these are that the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. The accused cannot possibly be convicted without any legal substantive evidence as the evidence is essential element in criminal proceedings, notwithstanding the seriousness of the allegations alleged against the accused because criminal proceedings require strict proof of guilt. It is the evidence, on the basis of which, the decision of a criminal court is based and is the requirement of criminal justice. Otherwise, in the absence of the same, the courts have no option but to record an order of acquittal, howsoever, painful the same may be.

29. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, as the courts below committed a grave illegality and material irregularity in convicting the petitioner without any cogent evidence on record, therefore, the revision petition deserves to be accepted for the reasons mentioned here-in-below.

30. As is evident from the record, the petitioner was charge- sheeted, firstly, for the commission of offence punishable under Section 279 IPC, which postulates that whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished under this Section, secondly, under Section 337 IPC, which provides that whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished therein and, thirdly, under Section 304-A IPC, which posits that whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished under this Section. Meaning thereby, rash or negligent act is a condition precedent for invoking these provisions.

31. Learned State Counsel has now sought to press into service the statements of PW4, PW6 and PW13. After considering the matter, to me, no implicit reliance can be placed on their statements in this relevant connection. Because, these witnesses have only stated that the petitioner Crl. Revision No.1366 of 2001 7 was driving the bus at a high speed. There is no whisper in their statements that the petitioner was driving the offending bus rashly or negligently or his rash or negligent act endangered the human life or the personal safety of others at the time of accident. Particularly when PW6 has categorically admitted that the accident in question took place due to mistake of the driver of both the buses. PW4 has also admitted that there was a curve in the road near the place of occurrence and the offending bus per chance struck against the other bus. PW6 has admitted as well that there was a curve in the road and when the bus reached near the curve, two cyclists suddenly appeared in front of the offending bus and in order to save them, the accident took place per chance.

32. Likewise, PW13 has also admitted that he is literate and working as a fridge mechanic, but could not tell the number of the bus. The police did not enquire anything about this case from him and did not record his statement. Moreover, the manner of narration of origin of the accident by all these witnesses is entirely different and leads us to nowhere.

33. It is not a matter of dispute that according to the prosecution, PW3, who was the driver of other bus, PW5, PW7-complainant Ramesh Chand, PW9, PW11 and PW16, were also travelling in the buses at the time of accident but they did not support the prosecution story. Instead of supporting, they have totally demolished the prosecution version in its entirety. They were cross-examined at length but no substantial material could be elicited in their searching cross-examination, pointing accusing finger towards the petitioner that he was driving the offending bus rashly or negligently and that rash or negligent act endangered human life or the personal safety of others at the time of accident.

34. An identical question arose before the Hon'ble Apex Court in State of Karnataka Versus Satish, 1998 Supreme Court Cases (Criminal) 1508. Having considered the relevant provisions of Sections 337/338 and 304-A IPC, it was ruled as under:- “Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304-A IPC after recording a finding that the respondent was driving the truck at a “high speed”. No specific finding has been recorded either by the trial Crl. Revision No.1366 of 2001 8 court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a “high speed”, both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty. Merely because the truck was being driven at a “high speed” does not bespeak of either “negligence” or “rashness” by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by “high speed”. “High speed” is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by “high speed” in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be persumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “res ipsa loquitur”. There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case. There being no evidence on the record to establish Crl. Revision No.1366 of 2001 9 “negligence” or “rashness” in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged”.

35. Therefore, the observations of the Hon'ble Apex Court mutatis- mutandis are applicable to the facts and in the circumstances of the present case. In the instant case, there is not an iota of cogent, reliable and trustworthy evidence on record to indicate that the petitioner acted in a manner which could be recorded as rash or negligent. In any event, there is no description or approximation of what was the speed of the offending bus at the relevant time. The expression 'high speed' could range from 30 kms. to over 100 kms. per hour. There is an inherent distinction between the 'high speed, rashness and negligent driving of the offending bus. The rashness conveys the idea of doing a reckless act without considering any of its consequences, whereas negligence connotes want of proper care.

36. Sequelly, the essential ingredients of Section 279 and 337 IPC are that there must be rash and negligent driving or riding on any public way and the act of the petitioner must be such, so as to endanger human life and personal safety or to be likely to cause hurt or injury to any other person. As regards, the offence punishable under Section 304-A IPC is concerned, it was obligatory on the part of the prosecution to establish by producing cogent and reliable evidence that the act of the petitioner was responsible for the death of a person and that such act must have been resulted from his rash or negligent driving. All the essential ingredients of Sections 279, 337 and 304-A IPC are lacking in the present case, in the manner indicated here- in-above.

37. Again, it is not a matter of dispute that in the instant case, on the other hand, there is a positive evidence on record, as discussed here-in- above, that there was rain on the fateful day and the road was wet and muddy. PW3-Mehal Singh, driver of other bus No.HRQ 4467, involved in Crl. Revision No.1366 of 2001 10 the accident, deposed that on 19.07.1989, he was going from Kaithal to Cheeka and when his bus reached in front of Farm House of Dillu Ram, Ex. MLA, the offending bus came from the opposite side which was being driven by the petitioner. He maintained that two cyclists came in front of the bus, the driver turned the same in order to save them and the offending bus became out of his control and caused the accident. He further stated that none of the drivers was at fault for causing the accident. PW4 admitted that there was a curve in the road near the place of occurrence and the offending bus by chance struck against the other bus. It was also so stated by PW6 that there was a curve in the road near the place of occurrence and two cyclists suddenly appeared in front of the offending bus, the petitioner turned his bus in order to save them and the accident took place by chance. PW7-Ramesh Chand, complainant, who put the police machinery into motion has also deposed that when their bus reached near the place of occurrence, two cyclists suddenly appeared in front of the bus and the petitioner turned his bus in order to save them. Meaning thereby, it is established on record that there was rain on the day of occurrence and the road was wet and muddy. There was a curve in the road near the place of occurrence. It has also come in evidence that two cyclists suddenly appeared in front of the offending bus and the petitioner turned the same in order to save them which rammed into the other bus. Thus, criminal culpability of the petitioner is not at all proved on record.

38. The matter did not rest there. Even Section 313 Cr.P.C. provides that in every trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, it was obligatory on the part of the court to record his statement and the answer given by the accused may be taken into consideration in the trial. The perusal of the record would reveal that the only incriminating evidence put to the petitioner in his statement under Section 313 Cr.P.C. is that he caused the accident while driving the offending bus at a high speed. It was nowhere put to the petitioner that he caused the accident by rash or negligent driving.

39. Therefore, in that eventuality, it cannot possibly be saith in the absence of any cogent evidence that the petitioner was driving the offending bus in a rash or negligent manner under the present set of circumstances. Crl. Revision No.1366 of 2001 11 The reliance in this regard can also be placed on a judgment of Delhi High Court in Abdul Subhan Versus State (NCT of Delhi), 2007(1) Recent Criminal Reports (Criminal) 260.

40. There is another aspect of the matter which can be viewed from a different angle. Not only, that Anil Kumar, the Investigating Officer has carried out the investigation in a casual and routine manner, but at the same time, the prosecution even did not examine him in the court to prove the site plan of the place of occurrence and other investigation carried out by him. It was, therefore, imperative for the prosecution to examine the Investigating Officer to prove the site plan to indicate accurate place of occurrence, the exact points of impact between the two vehicles as well as tyre skid marks and the point at which the vehicles come to rest after the accident in order to ascertain and reveal the truth that who was rash and negligent in causing the accident. The points pertaining to the manner of accident depicted in the site plan and the length of the tyre skid marks of the vehicles involved in the impact would go a long way in indicating the speed at which the vehicles were moving at the relevant time. This would have enabled the courts to examine the evidence in much more objective manner. Therefore, I am of the view that the examination of the Investigating Officer was essential in the present case. But the prosecution has withheld the material witness i.e., the Investigating Officer for the reasons best known to it and in that eventuality, an adverse inference against the prosecution is inevitable in this relevant behalf in view of the law laid down by the Hon'ble Apex Court in Nageshwar Sh.Krishna Chobe Versus State of Maharashtra, A.I.R., 1973 S.C. 165 and by this Court in Thana Ram Versus State of Haryana, 1996(1) Recent Criminal Reports (Criminal)

41. No other point worth consideration has been urged or pressed by the learned counsel for the parties.

42. Thus, it would be seen that if the totality of facts and circumstances emanating from the feeble evidence brought on record by the prosecution is put together, then conclusion is inescapable and irresistible that the evidence brought on record by the prosecution falls short as is required to prove a criminal case/charge framed against the petitioner and he deserves the benefit of reasonable doubt in the obtaining circumstances Crl. Revision No.1366 of 2001 12 of the case. Therefore, to me, the courts below fell in error and committed a grave illegality in convicting the petitioner without any cogent and credible evidence.

43. In the light of the aforesaid reasons, the revision petition is hereby accepted. The impugned judgments of conviction and order of sentence of the courts below are hereby set aside. Having extended the benefit of doubt, the petitioner is acquitted of the charges framed against him. Needless to say that the consequences will follow accordingly. February 01, 2010 ( Mehinder Singh Sullar) Judge