State of Rajasthan Through PP v. For

Judgment

1. Instant revision petition is preferred by petitioners-accused Shiv Charan aggrieved from dismissal of criminal appeal No. 41/2005 passed by learned Additional Sessions Judge, Bandikui Camp, Mahuwa, District Dausa, whereby the judgment of conviction and sentence dated 23.04.2005 in criminal case No. 734/2001 passed by learned Additional Chief Judicial Magistrate,

Mahuwa, District Dausa was affirmed. The appellant-accused Shivcharan was convicted under Section 279 and 304-A IPC and further sentenced to undergo imprisonment of one month and one year with fine respectively.

2. Learned counsel for petitioner while relying upon grounds of revision petition submitted that petitioner is an innocent person and was falsely implicated by police. He further submitted that the incident is of 25.04.1999 but report was registered on 26.04.1999 [2025:RJ-JP:22890] (2 of 9) [CRLR-190/2006] and no explanation of delay was offered by prosecution. He further submitted that this petitioner-accused was neither named in report nor in FIR. He further submitted that the report clearly indicate that due to rash and negligent driving of a speeding truck on national highway, the accident has occurred. He further submitted that instead of tracing and prosecuting truck driver, charge-sheet was filed against car driver, contrary to real facts of the case. He further referred site plan Ex. P-6 and submitted that as per site plan the accident was direct result of negligence of truck driver and the accident is not a result of negligent driving of car. He also submitted that as per site plan, the accident has occurred on middle of the road and for which the petitioner- accused I(car driver) cannot be held guilty. He referred the cross- examination of PW-1 (Surajpal Singh) and submitted that after hitting the car the truck driver has fled from the place of incident. He further referred the statement of PW-3 (Prabhu Dayal) and PW-4 (Mahesh Kumar) and submitted that all these were sleeping in the car at the time of accident and they were not aware, who was driving in rash and negligent manner. He also referred the eye-witness PW-5 (Bhagwan Singh) and submitted that he turned hostile.

3. Learned counsel for petitioner further referred the statement of PW-9 (Kunj Bihari) and submitted that he is not aware about the driver of the car. He also submitted that to establish rash and negligent driving, it is necessary that the evidence must be specific and unambiguous but in the instant case three witnesses PWs-1, 3 and 4 (Surajpal Singh, Prabhu Dayal and Mahesh Kumar [2025:RJ-JP:22890] (3 of 9) [CRLR-190/2006] respectively) were sleeping in the car and they have not seen the driver of the car driving in rash and negligent manner. He also submitted that one of the eye-witness has turned hostile and not supported the case of prosecution thus the involvement of present petitioner is also not established. At last, he submitted that the appellant-accused remained in custody for quite a some time, and he is facing charge of accident from 1999, therefore, a lenient approach be adopted against him and he be released on sentence already undergone by him.

4. Aforesaid contentions were opposed by learned Public Prosecutor.

5. Heard learned counsel for petitioner and learned Public Prosecutor. Perused the record.

6. On basis of a complaint Ex. P-3 filed by PW-3 Prabhu Dayal on 26.04.1999 about road accident in the morning of 25.04.1999 while traveling in car No. RHQ-1234 resulting in death of Jasraj who was also co-passenger with PW-3, FIR No. 123/1999 under Sections 279 and 304-A IPC was registered at Mahuwa, District Dausa. After investigation, police has filed a charge-sheet against the petitioner-accused. The prosecution has examined 9 witnesses and exhibited 8 documents. No defence was submitted by petitioner-accused after examination under Section 313 Cr.P.C. The petitioner-accused was convicted under Sections 279 and 304-A IPC and an appeal preferred before the Appellate Court was dismissed, hence this revision petition.

7. Admittedly, the accident is of 25.04.1999 and report was lodged on 26.04.1999. The accident is a result of collusion [2025:RJ-JP:22890] (4 of 9) [CRLR-190/2006] between truck and car. PW-1 (Surajpal Singh), PW-3 (Prabhu Dayal), PW-4 (Mahesh Kumar) and PW-6 (Sahab Singh) were traveling with deceased Jasraj in car. The name of petitioner was not mentioned in report Ex. P-3, filed by PW-1. As a result of this accident, Jasraj has expired and same was proved from evidence of PW-2 Dr. Sumant Dutta and PMR Ex. P-2.

8. The basic objection is whether the appellant-accused was driving the car or not? During investigation, a notice under Section 133 of MV Act was served to Kunj Bihari (PW-9) and he replied that Shiv Charan is driver on his car RHQ-1234. Further, PW-9 (Kunj Bihari) in deposition has stated that appellant-accused was driver on his car, though in cross-examination he admitted that he was not aware who was driver at the time of incident. The eye- witness PW-1 has not only identified the petitioner-accused but named him as a driver. PW-7 (Kesar Singh, IO) has given a notice to PW-9 (Kunj Bihari) registered owner and received reply. The petitioner-accused was named and identified as driver during evidence and same was not contradicted by accused himself. The defence of the petitioner is that he was sitting in car but not driving the car but he has not named the person who was driving the car. The duty lies upon the petitioner to disclose the real fact as he is under an obligation under Section 106 of the Indian evidence Act but he has not disclosed anything even about the driver.

9. After registration of FIR, the matter was investigated. In the report itself disclosed that Surajpal, Mahesh, Jasraj Singh, Bhagwan Singh and complainant Prabhu Dayal were traveling in [2025:RJ-JP:22890] (5 of 9) [CRLR-190/2006] the car, from Agra to Jaipur. Though, in his cross-examination he admitted that he was sleeping and just awaken after the incident but his evidence suggests that this driver was asked not to drive in a rash and negligent manner. PW-5 has turned hostile and not supported the case of prosecution. PW-3 Prabhu Dayal has stated that they have asked driver not to drive in fast speed. In cross- examination PW-3 has admitted that the speed was more than 40- 50 Kms. PW-4 has also corroborated the evidence of PW-3 and in cross-examination narrated the speed of car as 70 Kms per hour. His admission also indicate that the truck was also in speed.

10. Having considered the oral evidence on record when we perused the site plan Ex. P-6 then it is evident that the car was coming from Agra to Dausa whereas tuck was moving from Dausa to Mahuwa. The site plan Ex. P-6 suggests that the car was little towards right side from centre of the road. The place of incident is not exact centre point rather it is right side which indicate that the car may have jumped the other side of road. Thedriving conditions can only be explained by driver of car but he has not explained in his examination under Section 313 Cr.P.C.

11. Having considered the site plan and evidence on record, I am of the considered view that in fact it is car driver who was responsible for the accident. The petitioner was car driver and same is established from evidence of PW-1 and PW-9. After aforesaid evidence, the duty lies upon the petitioner-accused to rebut the evidence led against him but he has not specifically explained his role in the accident and if the accident was a result of negligence of truck driver and the car driver has taken due care [2025:RJ-JP:22890] (6 of 9) [CRLR-190/2006] and attention then it is the car driver who can explain the reason of accident but present petitioner has not explained the manner of accident either in his statement under Section 313 Cr.P.C. or as a defence witness, therefore, it cannot be said that the accident was a result of negligence of truck driver or it was contributory negligence of truck driver.

12. A rash driving refers an act of driving a vehicle in a reckless or irresponsible manner that endangers human life or is likely to cause injury to any person. The act of rash driving includes the act of over speed racing, overtaking, ignoring traffic signals, driving in intoxicated state and also in careless manner etc. The prosecution has to establish that:- (i) The accused drive vehicle on any pathway/road, (ii) The vehicle was driven in a rash and negligent manner, (iii) By the act it endangered the human life or caused harm to any other person.

13. In case of Ravi Kapur Vs. State of Rajasthan (2012) 9 SCC 284=AIR 2012 SC 2986 Hon’ble Supreme Court has held that rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact that can’t be comprehended or viewed separately. It must be examined in light of the attending circumstances.

14. ‘Negligence’ means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term [2025:RJ-JP:22890] (7 of 9) [CRLR-190/2006] but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when he is driving a vehicle in any thickly populated area.

15. In case of Dalbir Singh vs. State of Haryana (2000) 5 SCC 82, Hon’ble Supreme Court has observed that professional drivers should remind themselves of the general consequences of any movement or laxity or inadvertence while operating a vehicle. It is imperative that they did not take any chance or assume that their reckless driving will not result in an accident or any accident will not lead to loss of human life. Furthermore, driver should not assume that even if death occurs they will not be convicted of those offence or that they will receive lenient sentence. The observation clearly highlights the need for professional drivers who exercise at most caution and responsibility while driving and not causing harm and damage to anyone.

16. The petitioner is facing criminal proceedings since April 1999 but it is a case of rash and negligent driving wherein a person has lost his life. Hon’ble Supreme Court in case of Dalbir Singh Vs. State of Haryana (supra) has already considered the grounds of [2025:RJ-JP:22890] (8 of 9) [CRLR-190/2006] leniency in cases of rash and negligent driving and held that no lenient approach be adopted after conviction under sections 279 and 304A IPC.

17. In view of discussions made hereinabove, the Trial Court and the Appellate Court have not committed any error while convicting the petitioner-accused for charge under Section 279 and 304-A IPC and there is no perversity in the conviction of petitioner- accused. The petitioner-accused is facing trial and proceedings since 1999 through there is no minimum sentence prescribed after conviction under Section 304-A IPC, but still proper sentencing after conviction is a part of public policy.

18. In case of James Vs. State of Karnataka (2024) INSC 1038, an appeal after dismissal of revision petition confirming the conviction under Sections 279 and 304-A IPC was filed before Hon’ble Supreme Court and affirming the conviction and sentence the Hon’ble Supreme Court has refused to adopt leniency and observed that it is not a fit case for extending sympathy and taking a lenient view specially considering that the said lenient act of accused has caused death of one person as well as injury to one other. Similarly, in the instant case, one person has died and PW-1 has sustained injuries. This is a case of rash and negligent driving of petitioner-accused and we are also of the view that in such cases there is no ground of leniency, therefore, the petitioner is bound to serve the sentence as awarded by the Trial Court.

19. In view of discussions made herein-above, the S.B. Criminal Revision Petition filed aggrieved from judgment of conviction and sentence under Sections 279 and 304-A IPC dated 23.04.2005 in [2025:RJ-JP:22890] (9 of 9) [CRLR-190/2006] criminal case No. 734/2001 and affirmed in an appeal on dated

21.02.2006 is hereby dismissed.

20. The petitioner is directed to surrender before the Trial Court and in case he failed to surrender before the Trial Court, the Trial Court is directed to issue warrant of arrest to ensure that sentence is served.

21. Pending application(s), if any, also stands disposed of. MONU /119-S (ASHOK KUMAR JAIN),J

Mahuwa, District Dausa was affirmed. The appellant-accused Shivcharan was convicted under Section 279 and 304-A IPC and further sentenced to undergo imprisonment of one month and one year with fine respectively.

2. Learned counsel for petitioner while relying upon grounds of revision petition submitted that petitioner is an innocent person and was falsely implicated by police. He further submitted that the incident is of 25.04.1999 but report was registered on 26.04.1999 [2025:RJ-JP:22890] (2 of 9) [CRLR-190/2006] and no explanation of delay was offered by prosecution. He further submitted that this petitioner-accused was neither named in report nor in FIR. He further submitted that the report clearly indicate that due to rash and negligent driving of a speeding truck on national highway, the accident has occurred. He further submitted that instead of tracing and prosecuting truck driver, charge-sheet was filed against car driver, contrary to real facts of the case. He further referred site plan Ex. P-6 and submitted that as per site plan the accident was direct result of negligence of truck driver and the accident is not a result of negligent driving of car. He also submitted that as per site plan, the accident has occurred on middle of the road and for which the petitioner- accused I(car driver) cannot be held guilty. He referred the cross- examination of PW-1 (Surajpal Singh) and submitted that after hitting the car the truck driver has fled from the place of incident. He further referred the statement of PW-3 (Prabhu Dayal) and PW-4 (Mahesh Kumar) and submitted that all these were sleeping in the car at the time of accident and they were not aware, who was driving in rash and negligent manner. He also referred the eye-witness PW-5 (Bhagwan Singh) and submitted that he turned hostile.

3. Learned counsel for petitioner further referred the statement of PW-9 (Kunj Bihari) and submitted that he is not aware about the driver of the car. He also submitted that to establish rash and negligent driving, it is necessary that the evidence must be specific and unambiguous but in the instant case three witnesses PWs-1, 3 and 4 (Surajpal Singh, Prabhu Dayal and Mahesh Kumar [2025:RJ-JP:22890] (3 of 9) [CRLR-190/2006] respectively) were sleeping in the car and they have not seen the driver of the car driving in rash and negligent manner. He also submitted that one of the eye-witness has turned hostile and not supported the case of prosecution thus the involvement of present petitioner is also not established. At last, he submitted that the appellant-accused remained in custody for quite a some time, and he is facing charge of accident from 1999, therefore, a lenient approach be adopted against him and he be released on sentence already undergone by him.

4. Aforesaid contentions were opposed by learned Public Prosecutor.

5. Heard learned counsel for petitioner and learned Public Prosecutor. Perused the record.

6. On basis of a complaint Ex. P-3 filed by PW-3 Prabhu Dayal on 26.04.1999 about road accident in the morning of 25.04.1999 while traveling in car No. RHQ-1234 resulting in death of Jasraj who was also co-passenger with PW-3, FIR No. 123/1999 under Sections 279 and 304-A IPC was registered at Mahuwa, District Dausa. After investigation, police has filed a charge-sheet against the petitioner-accused. The prosecution has examined 9 witnesses and exhibited 8 documents. No defence was submitted by petitioner-accused after examination under Section 313 Cr.P.C. The petitioner-accused was convicted under Sections 279 and 304-A IPC and an appeal preferred before the Appellate Court was dismissed, hence this revision petition.

7. Admittedly, the accident is of 25.04.1999 and report was lodged on 26.04.1999. The accident is a result of collusion [2025:RJ-JP:22890] (4 of 9) [CRLR-190/2006] between truck and car. PW-1 (Surajpal Singh), PW-3 (Prabhu Dayal), PW-4 (Mahesh Kumar) and PW-6 (Sahab Singh) were traveling with deceased Jasraj in car. The name of petitioner was not mentioned in report Ex. P-3, filed by PW-1. As a result of this accident, Jasraj has expired and same was proved from evidence of PW-2 Dr. Sumant Dutta and PMR Ex. P-2.

8. The basic objection is whether the appellant-accused was driving the car or not? During investigation, a notice under Section 133 of MV Act was served to Kunj Bihari (PW-9) and he replied that Shiv Charan is driver on his car RHQ-1234. Further, PW-9 (Kunj Bihari) in deposition has stated that appellant-accused was driver on his car, though in cross-examination he admitted that he was not aware who was driver at the time of incident. The eye- witness PW-1 has not only identified the petitioner-accused but named him as a driver. PW-7 (Kesar Singh, IO) has given a notice to PW-9 (Kunj Bihari) registered owner and received reply. The petitioner-accused was named and identified as driver during evidence and same was not contradicted by accused himself. The defence of the petitioner is that he was sitting in car but not driving the car but he has not named the person who was driving the car. The duty lies upon the petitioner to disclose the real fact as he is under an obligation under Section 106 of the Indian evidence Act but he has not disclosed anything even about the driver.

9. After registration of FIR, the matter was investigated. In the report itself disclosed that Surajpal, Mahesh, Jasraj Singh, Bhagwan Singh and complainant Prabhu Dayal were traveling in [2025:RJ-JP:22890] (5 of 9) [CRLR-190/2006] the car, from Agra to Jaipur. Though, in his cross-examination he admitted that he was sleeping and just awaken after the incident but his evidence suggests that this driver was asked not to drive in a rash and negligent manner. PW-5 has turned hostile and not supported the case of prosecution. PW-3 Prabhu Dayal has stated that they have asked driver not to drive in fast speed. In cross- examination PW-3 has admitted that the speed was more than 40- 50 Kms. PW-4 has also corroborated the evidence of PW-3 and in cross-examination narrated the speed of car as 70 Kms per hour. His admission also indicate that the truck was also in speed.

10. Having considered the oral evidence on record when we perused the site plan Ex. P-6 then it is evident that the car was coming from Agra to Dausa whereas tuck was moving from Dausa to Mahuwa. The site plan Ex. P-6 suggests that the car was little towards right side from centre of the road. The place of incident is not exact centre point rather it is right side which indicate that the car may have jumped the other side of road. Thedriving conditions can only be explained by driver of car but he has not explained in his examination under Section 313 Cr.P.C.

11. Having considered the site plan and evidence on record, I am of the considered view that in fact it is car driver who was responsible for the accident. The petitioner was car driver and same is established from evidence of PW-1 and PW-9. After aforesaid evidence, the duty lies upon the petitioner-accused to rebut the evidence led against him but he has not specifically explained his role in the accident and if the accident was a result of negligence of truck driver and the car driver has taken due care [2025:RJ-JP:22890] (6 of 9) [CRLR-190/2006] and attention then it is the car driver who can explain the reason of accident but present petitioner has not explained the manner of accident either in his statement under Section 313 Cr.P.C. or as a defence witness, therefore, it cannot be said that the accident was a result of negligence of truck driver or it was contributory negligence of truck driver.

12. A rash driving refers an act of driving a vehicle in a reckless or irresponsible manner that endangers human life or is likely to cause injury to any person. The act of rash driving includes the act of over speed racing, overtaking, ignoring traffic signals, driving in intoxicated state and also in careless manner etc. The prosecution has to establish that:- (i) The accused drive vehicle on any pathway/road, (ii) The vehicle was driven in a rash and negligent manner, (iii) By the act it endangered the human life or caused harm to any other person.

13. In case of Ravi Kapur Vs. State of Rajasthan (2012) 9 SCC 284=AIR 2012 SC 2986 Hon’ble Supreme Court has held that rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact that can’t be comprehended or viewed separately. It must be examined in light of the attending circumstances.

14. ‘Negligence’ means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term [2025:RJ-JP:22890] (7 of 9) [CRLR-190/2006] but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when he is driving a vehicle in any thickly populated area.

15. In case of Dalbir Singh vs. State of Haryana (2000) 5 SCC 82, Hon’ble Supreme Court has observed that professional drivers should remind themselves of the general consequences of any movement or laxity or inadvertence while operating a vehicle. It is imperative that they did not take any chance or assume that their reckless driving will not result in an accident or any accident will not lead to loss of human life. Furthermore, driver should not assume that even if death occurs they will not be convicted of those offence or that they will receive lenient sentence. The observation clearly highlights the need for professional drivers who exercise at most caution and responsibility while driving and not causing harm and damage to anyone.

16. The petitioner is facing criminal proceedings since April 1999 but it is a case of rash and negligent driving wherein a person has lost his life. Hon’ble Supreme Court in case of Dalbir Singh Vs. State of Haryana (supra) has already considered the grounds of [2025:RJ-JP:22890] (8 of 9) [CRLR-190/2006] leniency in cases of rash and negligent driving and held that no lenient approach be adopted after conviction under sections 279 and 304A IPC.

17. In view of discussions made hereinabove, the Trial Court and the Appellate Court have not committed any error while convicting the petitioner-accused for charge under Section 279 and 304-A IPC and there is no perversity in the conviction of petitioner- accused. The petitioner-accused is facing trial and proceedings since 1999 through there is no minimum sentence prescribed after conviction under Section 304-A IPC, but still proper sentencing after conviction is a part of public policy.

18. In case of James Vs. State of Karnataka (2024) INSC 1038, an appeal after dismissal of revision petition confirming the conviction under Sections 279 and 304-A IPC was filed before Hon’ble Supreme Court and affirming the conviction and sentence the Hon’ble Supreme Court has refused to adopt leniency and observed that it is not a fit case for extending sympathy and taking a lenient view specially considering that the said lenient act of accused has caused death of one person as well as injury to one other. Similarly, in the instant case, one person has died and PW-1 has sustained injuries. This is a case of rash and negligent driving of petitioner-accused and we are also of the view that in such cases there is no ground of leniency, therefore, the petitioner is bound to serve the sentence as awarded by the Trial Court.

19. In view of discussions made herein-above, the S.B. Criminal Revision Petition filed aggrieved from judgment of conviction and sentence under Sections 279 and 304-A IPC dated 23.04.2005 in [2025:RJ-JP:22890] (9 of 9) [CRLR-190/2006] criminal case No. 734/2001 and affirmed in an appeal on dated

21.02.2006 is hereby dismissed.

20. The petitioner is directed to surrender before the Trial Court and in case he failed to surrender before the Trial Court, the Trial Court is directed to issue warrant of arrest to ensure that sentence is served.

21. Pending application(s), if any, also stands disposed of. MONU /119-S (ASHOK KUMAR JAIN),J