Bachhu Miah (Md.) VsState of Tripura

U.B. Saha, J.—The instant revision petition is directed against the judgment dated 12.01.2005 passed by the learned Sessions Judge, West Tripura, Agartala in Criminal Appeal 22(2) of 2004 whereby and whereunder the learned Sessions Judge dismissed the appeal preferred by the petitioner and affirmed the judgment dated 25.03.2004 passed by the learned Additional Chief Judicial Magistrate, West Tripura, Agartala in G.R. Case No. 312/2002, whereby the petitioner was convicted under Sections 279 , 337 and 304A of the Indian Penal Code (for short ''IPC'') and sentenced to suffer R.I. for two years for commission of offence u/s 304A of the IPC with a fine of Rs. 2,000/-, in default of payment of fine to suffer further R.I. for a period of one month. No order of sentence has been passed for commission of offence under Sections 279 and 337 of the IPC in view of Section 71 of the IPC. Heard Mr. S. Bhattacharji, learned Amicus Curiae appearing for the petitioner as well as Mr. R.C. Debnath, learned Additional public prosecutor appearing for the respondent.

The prosecution case, in brief, is that on 03.05.2002 at 1400 hours one Mintu Bhowmik (P.W. 5) lodged a complaint orally with the Sub-Inspector of police, Sri Sanjoy Biswas, Officer-in-charge of the Bishalgarh police station while he was at Bishalgarh hospital. The said oral complaint was reduced into writing by the aforesaid Sub-Inspector and forwarded to the Bishalgarh police station which was subsequently registered as Bishalgarh P.S. Case No. 33/2002. It was alleged in the complaint by the P.W. 5, informant/complainant, that on 03.05.2002 at about 1400 hours deceased Sukumar Choudhury, S/o. of Late Umesh Choudhury along with 10/12 other passengers of his locality of Purathal were returning home by Commander Jeep bearing No. TR-01-3056 and when the said Commander Jeep was reaching near the rice mill of Brajendra Giri at Ababinda Nagar on the Bishalgarh Kamthana road, the driver of the Jeep while giving way to another vehicle coming from the opposite direction, lost his control over the vehicle and it fell down into a ditch (Khud) on the southern side of the road. As a result of the said accident, Sukumar Choudhury died on the spot and about 7/8 more passengers sustained grievous injuries, who were shifted to G.B. Hospital for their treatment. The accident had occurred due to carelessness driving of the driver of the aforesaid vehicle.

The investigating authority after proper investigation submitted the charge sheet against the accused-petitioner, Md. Bachhu Miah, under Sections 279 /337 /304A of the IPC and sent the case record to the Court of the learned Chief Judicial Magistrate, West Tripura, Agartala for prosecution of the accused petitioner. The learned Chief Judicial Magistrate transferred the case to the Court of learned Addl. Chief Judicial Magistrate, West Tripura, Agartala (hereinafter referred to as ''trial Court'') for trial. The trial of the accused-petitioner was commenced on 29.05.2003. The accused-petitioner was examined u/s 251 of Cr.P.C. on the accusation as the same was attracted to 279/337/304A of the IPC and the accused-petitioner pleaded not guilty and claimed to be tried. In order to prove the case, the prosecution examined as many as 11 witnesses including the Medical Officer (P.W. 8) as well as the Investigating Officer (P.W. 11). At the closure of the evidence of the prosecution, the accused petitioner was examined u/s 313 of Cr.P.C. He denied the allegations brought against him and also declined to adduce any witness in support of his defence.

The learned trial Court by its judgment dated 25.03.2004 convicted the accused-petitioner under Sections 279 /337 /304A of the IPC and sentenced him to suffer R.I. for two years for commission of offence u/s 304A of the IPC with a fine of Rs. 2,000/-, in default of payment of fine to suffer further R.I. for a period of one month and did not pass any order of sentence for commission of offence under sections 279 /337 of the IPC in view of Section 71 of the IPC as stated supra.

Aggrieved by the said order of conviction and sentence as stated supra, the accused-petitioner preferred an appeal before the learned Sessions Judge, West Tripura, Agartala, which was registered as Criminal Appeal No. 22(4) of 2004 and the learned Sessions Judge by the impugned judgment dated 12.01.2005 affirmed the order, of conviction and sentence passed by the learned trial Court. Hence, the revision petition.

Mr. Bhattacharji, learned amicus curiae, while urging for setting aside the order of conviction and sentence passed by the learned trial Court and affirmed by the learned appellate Court, submits that though the prosecution was able to prove the alleged accident, but failed to connect the present petitioner with the said accident particularly regarding his status as a driver of the offending vehicle as well as the fact that he had driven the vehicle rashly and negligently for which the alleged accident occurred and one Sukumar Choudhury was died and other passengers were injured. He contended that to establish the case u/s 304A of the IPC, the prosecution is to prove that the death of deceased Sukumar Choudhury was caused due to the direct result of the rash and negligent act of the accused petitioner which is the sine qua non to prove an offence u/s 304A of the IPC. He further contended that though according to the prosecution, P.W. 1, Sri Goutam Majumder, P.W. 2, Swapan Chanda, P.W. 3, Sri Salema Begam, P.W. 7, Sri Sahajan Miah and P.W. 10, Abdu Miah were the passengers in the offending vehicle, but none of them implicated the present petitioner, except P.W. 2, in this case. He again contended that at the time of examination of the petitioner u/s 251 of Cr.P.C., the Court asked the accused petitioner regarding the Jeep No. TR-01 3056, but at the time of examination u/s 313 of Cr.P.C. as well as in the evidence of P.W. 2, the prosecution case was relating to a Commander Jeep bearing No. TR-01 3056. Not only that, the vehicle which was seized is also TR-01 A 3056 and not the vehicle TR-01 3056. Thus, it cannot be ruled out that there was another vehicle which caused the alleged accident. He also contended that in absence of evidence to establish negligence or rashness in driving, the order of conviction passed by the learned trial Court and affirmed by the learned appellate Court is required to be interfered with.

In support of his aforesaid contention he has placed reliance on the decisions of the Gauhati High Court of Agartala Bench in

Anjala Debbarma Vs. State of Tripura, : 2011 (2) GLT 865 (2011) 4 GLR 204

as well as in Krishna Debnath Vs. State of Tripura, (2012) 1 GLR 178, has also placed reliance on another decision of the Gauhati High Court of Agartala Bench in

Paresh Chandra Barman Vs. State of Tripura, : 2011 (5) GLT 687 (2012) 4 GLR 50

, wherein the learned counsel for the petitioner has referred the case of

State of Karnataka Vs. Satish (1998) 8 SCC 493

.

Learned counsel for the petitioner has also contended that mere using a word by a witness that accused had been driving the vehicle at a high speed is not enough to prove the rash and negligent, which is the sine qua non for commission of an offence u/s 279 of IPC. He has further contended that though the P.W. 11, the Investigating Officer of the case, in his evidence stated that on 08.05.2002, on his request, the offending Jeep was examined by the Motor Vehicle Inspector and the report in that regard was also received by him on the same day, but the said report has not been produced by the prosecution before the learned trial Court. Had that been produced then the accused could have established that the alleged accident was not the result of rash and negligent driving, but for mechanical fault and for non-citation of the Motor Vehicle Inspector as a charge sheeted witness and non-production of him before the learned trial Court also prejudiced the accused petitioner from getting fair trial which is the sine qua non of criminal jurisprudence. He finally contended that the learned trial Court while examining the accused petitioner u/s 313 of Cr.P.C. did not put any incriminating evidence to the accused petitioner, except P.Ws. 1, 2, 7 and some others, who were boarded in TR-01 A 3056, that the vehicle was fell down into a ditch (Khud) due to high speed.

The contention of Mr. Bhattacharji, learned amicus curiae that the number of the vehicle as mentioned in the F.I.R. also appeared in the charge sheet. The number of the offending vehicle is shown as TR-01 A 3056, but the learned trial Court while recording the statement of the petitioner u/s 251 of the Cr.P.C. asked accused petitioner about the Jeep No. TR-01 3056 and in his judgment convicted the accused for driving the vehicle being Commander Jeep No. TR-01 A 3056.

While examining the accused petitioner u/s 313 of Cr.P.C. the learned trial Court though asked to the petitioner that P.W. 4 in his statement stated that the petitioner was the driver of the offending vehicle, but fact remains that the P.W. 4 in his statement nowhere stated that at the relevant time the petitioner was the driver of the said vehicle rather he has stated in chief that he was questioned by the police as to who was the driver of the Jeep on the date of accident when he stated that the petitioner had taken the vehicle from his house on that day and in his cross he specifically stated that the petitioner took the Jeep from his house to the Syndicate and the Syndicate selected the driver, thus he cannot say who was selected as driver by the Syndicate on the date of accident and who was actually drove the Jeep at the time of accident. Thus, it cannot be ruled out that the petitioner was not the driver at the relevant time. In support of his aforesaid contention that the driving of a vehicle with high speed does not itself prove the negligence or rashness, he has placed reliance on a decision of the Apex Court in Satish (supra), wherein the Apex Court noted as under:-

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.

There being no evidence on the record to establish "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.

To establish his contention that unless the incriminating materials against the accused petitioner put to him by the learned trial Court at the time of 313 of Cr.P.C., the same cannot be relied upon for the purpose of conviction. As the aim and object of Section 313 of Cr.P.C. is to provide fair and proper opportunity to the accused for explaining the circumstances appearing against him as that is the requirement of the principles of natural justice also. In support of his aforesaid contention he has placed reliance on various decisions of the Apex Court as well as the decision of the Gauhati High Court of the Agartala Bench, which has considered the case of

S. Harnam Singh Vs. The State (Delhi Admn.), : AIR 1976 SC 2140

, wherein the Apex Court while discussing the object of Section 342 (old Code) held that the circumstances appearing in evidence against the accused is required to be put to him specifically, distinctly and separately and the decision in

Hate Singh Bhagat Singh Vs. State of Madhya Bharat, : AIR 1953 SC 468

, which was subsequently followed by the Apex Court in

Sharad Birdhichand Sarda Vs. State of Maharashtra, : AIR 1984 SC 1622

and also the decision in

Basavaraj R. Patil & Ors. Vs. State of Karnataka & Ors., (2000) 8 SCC 740

, wherein the Apex Court again discussed "the aim and object of Section 313 of Cr.P.C."

Dealing with the position as the Section remained in the original form under the old Code, a three Judge Bench of this Court (Fazal Ali, Mahajan and Bose, JJ.) interpreted the section in

Hate Singh Bhagat Singh vs. State of Madhya Bharat ( : AIR 1953 SC 468)

that:

The statements of the accused recorded by committing magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box; they have to be received in evidence and treated as evidence and be duly considered at the trial.

Para 11 to 19.....................

At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word may in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.

Learned counsel for the petitioner has also placed reliance on a decision of the Gauhati High Court of the Agartala Bench in Raton Lal Banik Vs. State of Tripura, 2012 (2) GLT 252 : (2012) 2 GLR 896 and a Division Bench of the Gauhati High Court of the Agartala Bench in

Janardhan Nath Vs. State of Tripura, (2013) 2 TLR 75

, particularly paragraphs 53 to 58, which are reproduced hereunder:-

In

Sh. Lalsangzuala V. State of Mizoram, : 2011 (1) GLT 47

, wherein a Division Bench of this court considering the decision of

Hate Singh Bhagat Singh V. State of Madhya Bharat, : AIR 1953 SC 468

which was subsequently followed by the Apex Court in

Sharad Birdhichand Sarda V. State of Maharashtra, : AIR 1984 SC 1622

and the decision of the Apex Court in

Basavaraj R. Patil and Ors. V. State of Karnataka and Ors., : 2000 Crl.L.J. 4604

set aside the order of conviction and remitted the matter back to the trial court for disposal afresh after examining the accused-appellant u/s 313 , Cr.P.C. asking the trial court to explain all the incriminating circumstances as available against him in the evidence of the prosecution witnesses and providing him opportunity to adduce evidence, if he wishes, in his defence.

In

Suraj Gupta and Ors. V. State of Meghalaya, : 2010 (3) GLT 225

, a Division Bench of this court considering the entire facts and circumstances, particularly the statement recorded u/s 313 , Cr.P.C. remitted back the matter to the trial court with a direction that the trial court in accordance with section 313 , Cr.P.C. and the spirit underlying shall put all the circumstances to the accused and would elucidate his explanation and the learned trial judge shall decide the matter afresh.

In

Sajjan Sharma V. State of Bihar, : 2011 Crl.L.J. 1169

, particularly paragraph 15, wherein the Apex Court noted, inter alia, "we are constrained to say that this is not an isolated case but it is almost a stereotype. It is our experience that in criminal trials in Bihar no proper attention is paid to the framing of charges and the examination of the accused u/s 313 of the Code of Criminal Procedure, the two very important stages in a criminal trial. The framing of the charge and the examination of the accused are mostly done in the most unmindful and mechanical manner. We wish that the Patna High Court should take note of the neglectful way in which some of the courts in the state appeal to be conducting trails of serious offences and take appropriate corrective steps".

In

Sanatan Naskar and Anr. V. State of West Bengal, (2010) 8 SCC 249

, the Apex Court noted that the primary purpose of Section 313 of the Cr.P.C. is only to establish a direct dialogue between the court and the accused and to put every incriminating piece of evidence to the accused and grant him an opportunity to answer and explain them.

In view of the above decisions of the Apex Court, it can be easily said that aim and object of section 313 , Cr.P.C. is to provide fair and proper opportunity to the accused for explaining the circumstances appearing against him and questioning must be done separately in regard to each material circumstances appearing against him in such a manner and in such a way which even an ignorant and illiterate person can appreciate and understand. The narration of evidence in a mechanical fashion would not subserve the purpose. Unless the trial court put each and every incriminating material on the basis of which the trial court convicted a person, then the right of an accused to get fair trial is denied and he is prejudiced.

In the instant case, it would be evident from the statement recorded u/s 313 , Cr.P.C. that though the learned trial court put some questions to the accused appellant relating to the incriminating materials against him like as to whether the Judicial Magistrate recorded his confession, but admittedly did not put any question relating to the contention of his statement recorded u/s 164 , Cr.P.C. by the learned Magistrate as well as the contents in the Forensic Report of the Tripura State Forensic Science Laboratory, but those materials were relied upon for convicting the accused appellant.

Mr. R.C. Debnath, learned Additional P.P. while supporting the judgment of the learned Trial Court as well as the learned appellate Court would contend that though the witnesses specifically did not state that the accused petitioner being driver drove the vehicle at the relevant time rashly and negligently, but it is specifically stated that the vehicle was at a high speed and the cause of accident was the result of the said high speed and not only that one Sukumar Choudhury was died for the negligence of the accused petitioner. He has also submitted that mere non-examination of the Motor Vehicle Inspector would not brush aside the evidence of P.W. 2 as well as P.W. 4. Finally, he has contended that admittedly the learned trial court did not put any incriminating materials specifically or distinctly to the accused petitioner at the time of recording his statement u/s 313 of Cr.P.C., but he had put question regarding the involvement of the vehicle as well as the accused petitioner as a driver and the vehicle was driven at a high speed. Thus, for such a minor error committed by the learned trial Court would not entitle the petitioner to be acquitted from the charge levelled against him.

As the petitioner is before this Court against the concurrent findings relating to conviction and sentence by the learned trial Court as well as the learned appellate Court, it is the duty of this Court to reassess the evidence particularly, the evidence of P.W. 2 and P.W. 4, as no other witnesses implicated the petitioner. P.Ws. 1, 3, 7 and 10 though were the passengers, admittedly did not implicate the present accused petitioner. P.W. 2 in his evidence nowhere stated that the petitioner was either negligent or rashly drove the vehicle at the time of alleged accident, rather he has stated specifically that "On reaching Arabanidanagar/Purathal near the rice mill, while giving way to another Commander Jeep coming from the opposite direction, our Jeep fell down on its left side in the ditch. Our Jeep was moving at heavy speed". He has also stated that "the owner of the Jeep was Gani Miah and it was being driven by Md. Bachhu Miah. He is present today at the dock". In his cross he stated that

"I cannot say the name of the owner and driver of the vehicle in which I have travelled today. I also cannot say the number of the jeep. I cannot recollect what coloured shirt Bachhu Miah was wearing on that day. It is not a fact that Bachhu Miah was not the driving the jeep in which I was travelling. At the time of crossing, our jeep slowed down. The jeep got dis-balanced and fell down in the ditch." He has also denied the suggestion that the jeep was not moving at high speed.

P.W. 4 in his statement nowhere specifically stated that at the relevant time the vehicle was driving by the present accused petitioner. But Mr. Debnath while supporting the judgment of the learned trial Court as well as the learned appellate Court tried to convince this Court showing the evidence of P.W. 4 that it is only the accused petitioner, who was driving the vehicle at the time of accident as admittedly he had taken the vehicle from the house of the owner of the vehicle, P.W. 3, Gani Miah. This Court is unable to accept such a submission as the P.W. 4 in his cross specifically said that Bachhu Miah took the jeep from his house to the Syndicate and the Syndicate selected the driver and he cannot say who was selected as driver by the Syndicate on the date of accident. Thus, the entire submission of Mr. Debnath is not on the basis of the evidence but on presumption and in a criminal case an order of conviction cannot be passed either on the basis of assumption or presumption, rather strict prove is necessary.

In Anjala Debbarma (supra), learned Single Judge of the Gauhati High Court, Agartala Bench, while considering the judgment and order passed by the learned Sessions Judge, West Tripura, Agartala in an appeal upholding the judgment and order of the learned Judicial Magistrate 1st Class, wherein the petitioner of that case was convicted under Sections 279 and 304A of the IPC, took note of the decisions of the Apex Court as well as the Orissa High Court, which are as under:-

In

Raghunath Behera v. State, reported in : 1968 Cri. L.J. 851

, a learned Single Judge of the Orissa High Court taking note of the decision of the Apex Court in

Kurban Hussain Mohmedalli Rangawalla v. State of Maharashtra : AIR (1965) SC 1616 in para. 5

stated, inter alia, as follows:

To constitute either of the offences u/s 279 or Section 304A of the Code, proof of rashness or negligence is essential. The only distinguishing feature is that in Section 279 , the rash and negligent act made punishable relates to the manner of driving or riding on a public way while the offence u/s 304A extends to any rash or negligent act falling short of culpable homicide. In the aforesaid judgment it is also stated that ''Negligence'' means breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate conduct of human affairs would do or the doing of something which a prudent and reasonable man would not do. The question for consideration is whether the facts found against the Petitioner amount to criminal negligence which would constitute an offence under either of these sections. There is no evidence or suggestion that the Petitioner was driving the tractor in question in a rash manner or in a negligent manner which resulted in the accident. All that prosecution has sought to establish and the Courts below have found is, as stated above, that the hitch assembly joint was weak on account of its having been welded earlier; that Petitioner should not have negotiated the ghat gradient with a loaded trailer attached to it; that he should not have allowed the deceased persons to sit on the trailer which was intended to carry goods and not passengers; that when the engine stopped, he should have shouted out a warning and that he failed to apply the brakes which if he had done would not have caused the tractor and attached trailer to roll back. In the decision reported in

: AIR 1965 SC 1616, Kurban Hussein Mohd. Rangawalla Vs. State of Maharashtra

, the interpretation of Section 304A , Penal Code came up for consideration. The observations of Sir Lawrence Jenkins in 4 BLR 679 to the effect:

To impose original liability u/s 304A , Penal Code, it is necessary that the death should have been the direct result of a rash or negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another''s negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non.

were quoted with approval and it was held that in order that person may be guilty u/s 304A , the rash or negligent act should be direct or proximate cause of the death.

In

Baijnath Singh Vs. The State of Bihar, reported in : AIR 1972 SC 14.85

, the Apex Court in para. 5 noted, inter alia, as follows:

It is significant that there was no trace of the corrugated iron sheets and the Investigating Officer made no mention of any attempt on his part to find them or discover them nor did not prosecution care to find out who the owner of the bus was and who had loaded the iron sheets. This part of the evidence was very material because unless the driver could be held to be entirely responsible for loading the iron sheets and putting them in a negligent manner or not tying them properly it is difficult to sustain his conviction u/s 304A of the Indian Penal Code. Nor could he be convicted for rash driving u/s 279 , Indian Penal Code, because there is hardly any evidence worth the name from which it could be inferred that the speed of the bus was such that any iron sheets even if it be assumed that they were loaded on the roof of the bus fell down because of driving at a high speed.

The Apex Court further noted-

Even if we assume that the case of the prosecution is correct that there were some corrugated iron sheets on the roof of the bus we are unable, on the evidence produced in the present case to find that the iron sheets were so loaded that a high degree of negligence could be attributed to the Appellant and that it was his rash and negligent act which could be regarded as the efficient cause of the injuries to Latif.

14.......This Court is of the further opinion that if a person dies or gets grievous injury while travelling by a vehicle does not ipso facto make the driver of that vehicle responsible for such death or injury u/s 279 of the Code unless the prosecution proves that it is the accused who was the driver of that vehicle and drove the vehicle rashly and negligently at the time of alleged accident and unless rashness and negligence on the part of the driver is proved, offence u/s 304A of the Code cannot also be made out as according to the Apex Court to constitute an offence u/s 304A of the Code, rash and negligent act should be the proximate cause of death.

In Krishna Debnath (supra) the Gauhati High Court, Agartala Bench, while considering a case relating to an offence under Sections 279 , 337 and 304A of the IPC, observed as under:-

In order to substantiate the allegation of rash and negligent driving, it must be established, by adducing cogent and reliable evidence, that the driver failed to drive the vehicle by taking proper care and precautions. To ascertain as to whether there was rash and negligent driving the speed and manner of driving are relevant factors. In fact, none of the witnesses stated about the speed at which the vehicle was moved. In view of absence of any evidence regarding the manner in which the vehicle was driven as well as the speed at which the vehicle was moving, it will not be safe to conclude that the driver of the vehicle had driven the vehicle rashly and negligently, i.e., without taking due care. The evidence on record does not inspire confidence to hold that the petitioner was driving the vehicle in a rash and negligent manner. Therefore, it cannot be held that the ingredients of the offences under sections 304A and 337 , IPC have been established in this case. In view of the contradictory evidence, given by P.W. Nos. 1 and 7 on the one hand and the evidence given by P.W. Nos. 2, 3, 4 and 5 on the other, it is doubtful whether the accident took place due to fault of the said students or the driver.

In

Mohammed Safique Vs. State, : 1983 Cri. L.J. 535

, a learned Single Judge of the Orissa High Court while considering a case relating to Section 279 and Section 304A of the IPC taking note of various decisions of the Orissa High Court noted that to constitute an offence punishable u/s 279 of the IPC it must be shown that the person was driving the vehicle in a rash and negligent manner. To constitute the offence either u/s 279 or Section 304A of the IPC, proof of rashness and negligence is essential. In a case of

Golam Jilani Khan Vs. State, (1972) 38 Cut. LT 945

, reference has been made of many earlier decisions on the point with regard to the application of Section 279 and 304A of the IPC including the cases reported in

: AIR 1965 SC 1616, (Kurban Hussein Mohamedali Vs. State of Maharashtra)

and

: AIR 1972 SC 221 (Mahadeo Harilokre Vs. State of Maharashtra)

and it has been observed and held that the death caused must be the direct result of rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another''s negligence. In other words, it must be the causa causans: it is not enough that it must have been the cause sine qua non. Merely from high speed, rashness and negligence cannot be ascertained and there must be direct nexus between the death of the person and rash and negligent act of the accused. All that the prosecution had established in the instant case was that the petitioner had been driving the vehicle in speed. There was no other evidence or circumstance to indicate that the driver was rash or negligent.

In

Mohammed Aynuddin Vs. State of A.P. (2000) 7 SCC 72

, the Apex Court while considering an appeal relating to offence u/s 304A of the IPC has discussed what is rash and negligent driving and what amount of culpable to criminal negligence and noted as under:-

It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus.

The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer.

A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.

In the present case the possible explanation of the driver is that he was unaware of even the possibility of the accident which happened. It could be so. When he moved the vehicle forward his focus normally would have been towards what was ahead of the vehicle. He is not expected to move the vehicle forward when passengers are in the process of boarding the vehicle. But when he gets a signal from the conductor that the but can proceed he is expected to start moving the vehicle. Here no witness has said, including the conductor, that the driver moved the vehicle before getting signal to move forward. The evidence in this case is too scanty to fasten him with criminal negligence. Some further evidence is indispensably needed to presume that the passenger fell down due to the negligence of the driver of the bus. Such further evidence is lacking in this case. Therefore, the court is disabled from concluding that the victim fell down only because of the negligent driving of the bus. The corollary thereof is that the conviction of the appellant of the offence is unsustainable.

Upon going through the decisions of the Apex Court as well as the High Courts referred above, it can be easily said that each and every accident cannot be said to be the result of negligence of the driver, until and unless the prosecution can prove reasonably by way of adducing evidence that the accident took place due to rash and negligent driving of the vehicle by the driver. It also appears from the aforesaid decisions of the Apex Court and the High Courts that mere evidence that the vehicle was driving by the driver with high speed itself not amount to an offence u/s 279 of the IPC and unless an offence u/s 279 of the IPC is established, then even a death caused for the said accident would also not come within the purview of Section 337 of the IPC. In the instant case admittedly the Motor Vehicle Inspector examined the offending vehicle and submitted the report but neither the said report was produced before the learned trial Court nor was the Vehicle Inspector examined. Thus, mechanical failure of the vehicle cannot be ruled out even if we accept that the accused petitioner drove the vehicle at the alleged time of accident.

Considering the evidence on record and for the discussion made herein above, this Court is of the opinion that it would not be proper to fasten the accused petitioner with the alleged commission of offence for which he was convicted and sentenced by the learned trial Court and affirmed by the learned appellate Court.

In the result, the instant revision petition is allowed. The impugned judgment and order of conviction and sentence passed by the learned trial Court and affirmed by the learned appellate Court is set aside. The petitioner is acquitted from the charges levelled against him. As the petitioner is on bail, he is discharged from the bail bond. Before parting with this revision, this court appreciates the assistance made by Mr. Bhattacharji, learned amicus curiae and it is ordered that the learned amicus curiae shall be paid an amount of Rs. 3,000/- (Rupees three thousand) only as his fees for conducting the instant case, which shall be paid by the Law Department, Government of Tripura.

Send down the lower Court records.