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Judgment
Sandeep Sharma, Judge (Oral)
Instant Criminal Revision Petition filed under Section 397/ 401 of the Code of Criminal Procedure, lays challenge to judgment dated 16.03.2015, passed by learned Sessions Judge, Solan, District Solan, Himachal Pradesh(Camp at Nalagarh), in Criminal Appeal No.8-NL/10 of 2014, affirming judgment of conviction dated 28.03.2014 and order of sentence dated 11.04.2014, passed by learned Judicial Magistrate, First Class, Court No.2, Nalagarh, District Solan, Himachal Pradesh, in Criminal Case No.166/2 of 2009, titled as State of Himachal Pradesh versus Jaswinder Singh, whereby learned trial Court, while holding petitioner-accused guilty of having committed the offence punishable under Sections 279 and 337 of IPC, convicted and sentenced him as under:-
Sr. Offence Sentence Fine amount( )
1.279 IPC Rigorous imprisonment for 500/-two months
2.337 IPC Rigorous imprisonment for 500/-two months
Precisely, the facts of the case, as emerge from the pleadings as well as other material adduced on record by the respective parties, are that FIR (Ex.PW9/A) came to be lodged on the basis of the statement made by complainant, Anil Kumar(PW-1) under Section 154 Cr.P.C, wherein he alleged that on 08.10.2008, while he alongwith his fiancée was going from Nalagarh to Baddi on his motorcycle bearing registration No.HP-12-C1371 and had reached near P.G. College, Nalagarh at 9.30 AM, accused came from the opposite side driving Bolero Jeep bearing registration No.HP-12-B-8007 and attempted to overtake the bus. While attempting to overtake the bus, accused allegedly hit the motorcycle of the complainant, as a result whereof, he alongwith pillion rider fell down and sustained injuries. PW-2¸Sh. Saleem Kurashi, brother-in-law of the complainant allegedly rushed to the spot and took the injured to the hospital and gave telephonic information to the police. On receipt of such information, Inspector, Hem Raj, PW-10 went to the hospital at Nalagarh and recorded statement of the complainant Ex.PW1/A under Section 154 Cr.P.C. Police, after having completed necessary codal formalities, lodged the FIR, as detailed hereinabove, against the petitioner, who at the relevant time was allegedly driving the Bolero jeep in rash and negligent manner. After completion of the investigation, police presented the challan in the competent Court of law, which being satisfied that a prima-facie case exists against the accused, framed notice of accusation under Sections 279 and 337 of IPC against him, to which he pleaded not guilty and claimed trial.
Prosecution, with a view to prove its case, examined as many as 10 witnesses, whereas, accused in his statement recorded under Section 313 Cr.P.C., denied the case of the prosecution in toto. He claimed himself to be innocent and asserted that he had been falsely implicated in the case. However, despite opportunities having been afforded, no evidence ever came to be adduced on record at the behest of the accused.
Learned trial Court on the basis of the evidence made available on record by the prosecution, found accused guilty of having committed offences punishable under Sections 279 and 337 of IPC and accordingly, convicted and sentenced him, as per the description given hereinabove.
Feeling aggrieved and dissatisfied with the judgment of conviction and order of sentence recorded by learned trial Court, present petitioner-accused filed an appeal under Section 374 of the Code of Criminal Procedure before the learned Sessions Judge, Solan, District Solan, Himachal Pradesh(Camp at Nalagarh), but same was also dismissed vide judgment dated 16.03.2025. In the aforesaid background, present petitioner-accused approached this Court by way of instant criminal revision petition, praying therein for his acquittal after quashing and setting-aside the impugned judgments passed by the learned courts below.
Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Shivam Sharma and Ms. Srishti Negi, learned counsel for the petitioner, is that both the Courts below have failed to appreciate the evidence in its right perspective, as a result thereof, findings to the detriment of accused, who has been falsely implicated, have come to the fore. Above named counsel vehemently argued that none of the prosecution witnesses stated something specific with regard to rash and negligent driving, if any, on the part of the accused and as such, there was no occasion, if any, for the Courts below to hold accused guilty of having committed offences punishable under Sections 279 and 337 of IPC. They further argued that mere statement that vehicle in question was being driven in high speed is not sufficient to conclude guilt, if any, of the accused under Sections 279 and 337 of IPC, rather for that purpose, act of rashness and negligence was required to be proved beyond reasonable doubt.
While referring to the statement of PW-7, who at the relevant time was pillion rider, learned counsel for the petitioner vehemently argued that this witness nowhere stated that accident occurred on account of fault of the accused, rather she stated that offending vehicle was being driven on wrong side of the road, as a result thereof, accident occurred. Learned counsel for the petitioner further submitted that both the witnesses categorically stated that the accident occurred at the time when the accused was overtaking the bus, but they nowhere stated that at the relevant time vehicle was being driven rashly and negligently.
To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while supporting the impugned judgments passed by learned Courts below, vehemently argued that the same are based upon proper appreciation of evidence adduced on record by the prosecution and there is no scope of interference in the same. He further argued that otherwise also, this Court, while exercising revisional jurisdiction under Section 397 Cr.P.C., has very limited jurisdiction to re-appreciate the evidence. He argued that since nothing has been pointed out with regard to perversity, if any, in the judgment of conviction and order of sentence recorded by learned Court below, this Court may not accept the present petition. He further submitted that there is overwhelming evidence adduced on record by the prosecution suggestive of the fact that at the time of accident offending vehicle was being driven negligently by the accused. He further submitted that it has specifically come in the evidence that offending vehicle was being driven on wrong side, as result thereof, accident occurred and as such, petitioner-accused deserves no leniency, rather needs to be dealt with severely in accordance with law. He stated that though during the trial an attempt came to be made at the behest of the accused that accident occurred on account of mechanical defect in the motorcycle, but statement of Sh. Rajinder Singh (PW-5), who mechanically examined both the vehicles, nowhere suggests that accident occurred on account of mechanical defect, if any, in the motorcycle, rather accident occurred on account of rash and negligent driving of the offending vehicle. He further submitted that to constitute rash and negligent driving, it is not necessary to prove that vehicle was being driven in high speed, rather other material facts such as of overtaking or driving on wrong side as well as negligent behaviour of the accused are sufficient to hold accused guilty of his having committed offence punishable under Section 279 and 337 of IPC. He also invited the attention of this Court to the judgment passed by the Hon’ble Apex Court in State of Punjab versus Saurabh Bakshi 2015 (5) SCC 182; wherein Hon’ble Apex Court has held that courts below while dealing with the accident cases should exercise great constraint, while taking lenient view against reckless drivers, who drive rashly and negligently. Learned Additional Advocate General, has placed reliance upon the judgment passed by Hon’ble Apex Court in case State of Kerala versus Puttumana Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been held as under:-
“ In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.”
In the aforesaid background, he prayed that the present petition deserves to be dismissed being devoid of any merit.
I have heard learned counsel representing the parties and gone through the record carefully.
True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to re-appreciate the evidence available on record. But in the present case, where accused has been convicted and sentenced under Sections 279,337 and 304-A of the Indian Penal Code, this Court solely with a view to ascertain that the judgments passed by both the Courts below are not perverse and same are based upon correct appreciation of evidence available on record, undertook an exercise to meticulously examine the evidence available on record to reach a fair and just decision in the case.
As far as scope of power of this Court, while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. The relevant para of the judgment is reproduced as under:-
8.The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order.”
In the instant case, this Court solely with a view to ascertain the genuineness and correctness of the submissions having been made by the learned counsel representing the petitioner as well as to find out “whether there is any illegality or infirmity in the impugned judgments passed by the Court below, undertook an exercise to peruse the evidence led on record by the prosecution, perusal whereof, certainly persuades this Court to agree with the submissions having been made by the learned counsel for the petitioner/ accused that learned courts below have not appreciated the evidence in its right perspective, as a result of which, erroneous findings to the detriment of the petitioner-accused have come on record.
In nutshell, the case of the prosecution, as came to be put forth, is that on 08.10.2008, while complainant, Anil Kumar was going from Nalagarh to Baddi on his motorcycle bearing registration No.HP-12-C1371 alongwith Pankaj Dixit, at about 9.30 AM, Bolero Jeep bearing registration No.HP-12-B-8007, being driven by the accused, came from the opposite side and hit the motorcycle of the complainant, as a result of which, motorcycle fell down on the road and occupants of the same suffered multiple injuries. It is also case of the prosecution that offending vehicle had actually attempted to overtake the bus, which at the relevant time was moving ahead of it, but while doing so, same hit the motorcycle, which was coming from the opposite side.
Though, prosecution examined as many as 10 witnesses, but statements of two witnesses i.e. PW-1, Anil Kumar and PW-7, Ms. Pankaj Dixit are relevant for ascertaining the correctness of the judgment of the conviction and order of sentence recorded by Courts below because these are the only two witnesses, who had an occasion to witness the accident with their own eyes, rather other witnesses were admittedly not present at the spot.
PW-1, Anil Kumar, deposed that he was employed at Baddi and on 08.10.2008, he alongwith Pankaj Dixit was going on a motorcycle from Nalagarh to Baddi and at about 9.30 AM, while they had reached PG College, Nalagarh, accused came from opposite side driving Bolero jeep in a rash and negligent manner, as a result of which, he alongwith pillion rider fell on the road and sustained injuries. He deposed that they were removed to the hospital and their statements were recorded by the police. In his cross-examination, he clarified that accused was overtaking the bus when the jeep being driven by him collided with his motorcycle. He denied that motorcycle got skidded on the road due to which he sustained injuries. He admitted that some repair work on the road was going on at the time of the accident. He further admitted that at the time of the accident speed of the offending vehicle was slow. If the statement made by afore witness is perused in its entirety, it nowhere suggests that at the time of the accident offending vehicle was being driven in high speed. It also emerges from his statement that at the place of the accident some repair work was going on. It also emerges from his statement that accident occurred when vehicle being driven by the accused attempted to overtake the bus moving ahead of it. Though, this witness simply stated that vehicle was being driven rashly and negligently, but it never came to be explained that in what manner vehicle was being driven rashly and negligently, especially when it has already come in his statement that at the time of the accident, speed of the offending vehicle was slow and at the place of the accident repair work was going on.
Another witness, Ms. Pankaj Dixit (PW-7), who was the pillion rider, also stated that she was going with the complainant on his motorcycle on the relevant date and time to Baddi. She deposed that when they reached P.G, College Baddi, a Bolero Jeep came from opposite side, which was being driven on the wrong side of the road by its driver and said jeep hit their motorcycle, due to which she alongwith complainant fell down and sustained injuries. She stated that she does not know the name of the driver and she has also not identified the accused to be driver of the jeep in question. Aforesaid witness was declared hostile, however yet Court below, taking note of her cross-examination, arrived at a conclusion that her version recorded in cross-examination supports the version put forth by PW-1. In her cross-examination conducted by learned Assistant Public Prosecutor, she feigned ignorance with regard to the fact that the jeep in question was being driven by the accused. She stated that she does not know, who was driving the jeep, but she clarified that she became unconscious as a result of fall.
After having perused the statements made by both the material prosecution witnesses , this Court is persuaded to agree with learned counsel for the petitioner that none of the prosecution witnesses supported the case of the prosecution. No doubt, PW-1, in his statement, though attempted to set up a case that at the time of the accident, offending vehicle was being driven rashly and negligently, but such version of him never came to be corroborated by another eye witness PW-7, who was unable to state as to who was at fault, rather she categorically stated that she became unconscious and was unable to identify the driver of the offending vehicle.
In nutshell, case of the petitioner-accused is that no evidence, worth credence, ever came to be led on record to prove rash and negligent driving, if any, at the behest of the accused and if it is so, learned Court below could not have sentenced him under Section 279, and 337 of IPC. At this stage, it would be profitable to reproduce Section 279 of IPC herein below:-
“Rash driving or riding on a public way:- 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 with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees of with both.”
Careful perusal of aforesaid provision of law reveals that to invoke Section 279 IPC, prosecution is under obligation to prove that offending vehicle was being driven by the accused in rash and negligent manner and due to his negligent act, injury was caused to PW-1 and PW-7. Since factum with regard to injuries suffered by the PW-1 and PW-7 is not in dispute, this Court need not to go into aforesaid aspect of the matter. However, having taken note of statements made by material prosecution witnesses, as discussed hereinabove, this Court is unable to agree with learned Additional Advocate General that at the time of the accident, offending vehicle was being driven rashly and negligently by the accused.
As per Section 279 of IPC, whoever drives any vehicle on a public way in rash and negligent manner so as to endanger human life shall be liable to be punished with imprisonment of either description for terms which may extend to six months, or with fine. ‘Negligence’ is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
‘Speed’ is not the criteria to ascertain the rash and negligent driving, rather it is the manner, in which offending vehicle was driven, which determines rashness and negligence. At this stage, learned counsel for the petitioner placed reliance upon the judgment passed by the Co-ordinate Bench of this Court in case State of H.P and ors versus Parmjit Singh, latest HLJ 2012(HP) 297 to substantiate his plea that speed is not the only criteria to prove the rash and negligent driving. The relevant para Nos.14 and 15 of the judgment is reproduced as under:-
“14.It is a settled law that the speed is not a criterion to prove the rash or negligent act of driving. The prosecution, as already stated above is obliged to prove the necessary ingredients of the offence by direct or circumstantial evidence. To fasten the criminal liability for the offences charged, there should be consistent, convincing and reliable evidence. Even in the exceptional cases, where the rule of res ipsa laquitar applies, it cannot be taken for guaranteed that the driver of the vehicle involved in the accident is guilty of offence. In the same situation, there could be civil liability as well, in addition to the criminal liability, but so far as the criminal liability, it has to be proved beyond reasonable doubt and civil liability can be proved by preponderance of probabilities.
15.On the strength of the aforesaid evidence, it is very difficult to conclude that the accused was driving the vehicle rashly or negligently, more specifically when it has also come in the evidence that the deceased came in contact with the offending vehicle while crossing the road. Therefore, in my considered opinion, the offences punishable under Sections 279 and 304-A of the Indian Penal Code against the accused are not made out.”
It is well settled that a person cannot be held criminally accountable for his rashness and negligence merely because evil consequences flow from his act, rather rashness must be such as to endanger human life or personal safety of others. Similarly, for criminal liability, the rashness or negligence must show a disregard for human life or personal safety of others. Question whether an act is criminally rash or negligent is a question of fact depending upon the circumstances of particular case and as such, needs to be elucidated minutely and with certain degree of precision. But in the instant case, prosecution was unable to prove beyond reasonable doubt negligence, if any, on the part of the petitioner-accused. In this regard, reliance is placed upon the judgment passed by the Hon’ble Apex Court in Braham Dass versus State of H.P. (2009) 7 Supreme Court Cases 353. The relevant para No. 6 and 8 are reproduced herein below:-
“6.In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been brought on record as to how the appellant-accused was negligent in any way. On the contrary what has been stated is that one person had gone to the rooftop and the driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger was on the rooftop of the bus. Learned counsel for the respondent on the other hand submitted that PW-1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus.
8.Section 279 deals with rash driving or riding on a pubic way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not (sic) negligence. Similarly, in Section 304-A the stress is on causing death by negligence or rashness. Therefore, for brining on application of either Section 270 or 304-A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved.”
The Hon’ble Apex Court in case titled “State of Karnataka v. Satish,”1998 (8) SCC 493. The relevant paras of which are being reproduced herein below:-
“1.Truck No. MYE-3236 being driven by the respondent turned turtle while crossing a "nalla" on 25-11-1982 at about 8.30 a.m. The accident resulted in the death of 15 persons and receipt of injuries by about 18 persons, who were travelling in the fully loaded truck. The respondent was charge-sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was convicted for offences under Sections 279, 337, 338 and 304A IPC and sentenced to various terms of imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. While the conviction and sentence imposed upon the respondent for the offence under Section 279 IPC was set aside, the appellate court confirmed the conviction and sentenced the respondent for offences under Sections 304A, 337 and 338 IPC. On a criminal revision petition being filed by the respondent before the High Court of Karnataka, the conviction and sentence of the respondent for all the offences were set aside and the respondent was acquitted. This appeal by special leave is directed against the said judgment of acquittal passed by the High Court of Karnataka.
2.We have examined the record and heard learned counsel for the parties.
3.Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304A 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 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.
4.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 presumed, 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.
At this stage, this Court also cannot lose sight of the stern observations made by the Hon’ble Apex Court in State of Punjab versus Saurabh Bakshi 2015 (5) SCC 182, wherein it has been observed as follows:-
25.Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the “Emperors of all they survey”. Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as “larger than life”. In such obtaining circumstances, we are bound to observe that the law-makers should scrutinize, relook and revisit the sentencing policy in Section 304-A IPC, so with immense anguish.”
There cannot be any quarrel, whatsoever, with regard to the observations made by the Hon’ble Apex Court with regard to the careless/reckless driving of the drivers and the fact that drivers driving under the influence of alcohol deserve to be punished but in the present case careful perusal of evidence adduced on record by the prosecution, nowhere suggest that the prosecution was able to prove beyond reasonable doubt that vehicle was being driven by the petitioner-accused in rash and negligent manner.
After having carefully perused the record and the statements of the witnesses and applying ratio of law laid down by the Hon’ble Apex Court in the judgment, noted hereinabove, this court is of the view that the judgments passed by the courts below are not based upon correct appreciation of the evidence adduced on record and as such, same deserve to be quashed and set-aside.
Consequently, in view of the detailed discussion made herein above, the present petition is allowed and the judgments passed by the courts below are quashed and set-aside. Accordingly, petitioner-accused is acquitted of the charges framed against him. His bail bonds/personal bonds are ordered to be discharged and interim order, if any, is vacated. All applications, if any, also stand disposed of.