Bhanwarlal vs The State of Rajasthan

L.S. Mehta, J.—On September 5,1968, P.W. 1 Gendilal, son of Dhanna Banjara, a tesident of village Marali, submitted a first information report to the police station, Bhimganj Mandi, Kotah, to the effect that he was travelling that day along with his mother-in-law Mrs. Soni (deceased) in, a truck going from Kotah City towards Kotah Dam. In that truck Mangi and 2 other ladies were also seated. When the truck reached somewhere near the temple of -Gardia Mahadeo, he and his mother-in-law wanted to get down there for going to Bagari. He first alighted from the front cabin of the truck and stood at the place marked 4 in the site plan Ex. P. 6. His mother-in-law Mrs. Soni got down from the rear side of the truck. The moment she came down she started pulling down her luggage. In the meantime another truck No. RJR 1000 arrived at the spot from the opposite direction, i.e., from the side of the Kotah Dam. That truck struck against Mrs. Soni and knocked her down. She was badly injured and she fell down unconscious on the road. She was immediately taken to the M.B.B.S., Hospital, Kotah, where she breathed her last on account of the serious injuries sustained by her On receipt of the report, the police registered a case u/s 304-A, Indian Penal Code, and undertook investigation. Autopsy of the dead body of Mrs. Soni was conducted by P.W. 3 Dr. R.K. Gupta, Medico Legal Officer, M.B.B.S., Hospital, Kotah. Following injuries were noticed on her person-

(1) Lacerated wound 4" x 4''x bone deep on right parietal region.

(2) Contusion on entire right cheek.

(3) Contusion 2" x 1" bone deep on left parietal region.

(4) Multiple contusion from l/2"x l/8'' to 2''x T on left shoulder.

(5) Lacerated wound 2J"Xl'' on left loin.

(6) Abrasion over entire loins (lumbar region) entire back of left side of chest and lower 1/2 of back of right side of chest.

(7) Abrasion 2''x2'' on the left hip.

(8) Contusion over entire right hip.

(9) Contusion 3''XU" on front of left side of chest on its lower part.

In the opinion of the Doctor, the death was due to rupture of liver and multiple fractures (left ribs and right ilium). The investigating officer prepared a site inspection note Ex. P. 6. After the investigation was concluded, a challan was put up by the police in the court of the Additional Munsiff-Magistrate No. 2, Kotah. The accused, it appears, denied to have committed any offence. In support of its case the prosecution examined 10 witnesses. In his statement, recorded u/s 342, Code of Criminal Procedure, the accused deposed that his truck did not knock down Mrs. Soni. There was another truck standing on the road. When he saw a woman lying injured, he took her to the Hospital, Kotah. The other truck left the place as soon as he stopped his truck. In his defence he produced himself into the witness box as D.W. 1 in accordance with the provisions of Section 342-A, Code of Criminal Procedure. The trial court relied upon the statements of Gendialal, P.W.1, Abdul Shakoor, P.W. 5, and Dr. R.K. Gupta, P.W. 3, and concluded that the accused acted in a rash or negligent manner. It accordingly convicted him u/s 304-A, Indian Penal Code, and sentenced him to rigorous imprisonment for one year. An appeal was taken by the accused to the-Court of Sessions Judge, Kotah. The appellate court, holding that Mrs. Soni knocked down, run over and killed by the truck rashly or negligently driven by the accused Bhanwarlal, dismissed the appeal.

Aggrieved against the above verdict, the Petitioner has approached this Court through this revision petition. Learned Counsel for the Petitioner has persuasively argued that rash or negligent act on the part of the Petitioner has not been proved beyond reasonable doubt by the prosecution in this case. He has also urged that Mrs. Soni-wanted to cross the road after coming down, from the truck wherein she was sitting. According to him driver Bhanwarlal could not have seen her in her attempt to cross the road. The inferential possibility is that it was Mrs. Soni who dashed against the truck and not that the truck dashed against her. Learned Deputy Government Advocate, on the other hand supported, though halfheartedly, the judgment of the court below.

In this case there is no evidence on the record relating to the distance between truck No. RJR 1000 driven by the Petitioner and the place where Mrs. Soni lay injured, to show upto what distance the vehicle travelled after the victim had been knocked down. It is also clear from the medical evidence that the injuries on the person of Mrs. Soni were not received by her from the front portion of the vehicle. P.W. 3 Dr. RK. Gupta, Medico Legal Officer, M.B. S.,. Hospital, Kotah, testifies that Mrs. Soni might have been struck with a part of the-truck''s wheel. The wheel could not have-run over her whole body. That shows that Mrs. Soni was actually struck on one side, as more serious injuries were found on the right part of her body. Abdul Shakoor. P.W. 5, has stated that Mrs. Soni was dashed by a truck on the road when she endeavoured1 to cross it. No attempt has been made by the prosecution to give a precise idea how and in what manner Mrs. Soni was knocked down. It is indubitably true that Gendilal, P.W. 1 has stated that the truck was moving with a high speed and that the driver did not blow the horn. No attempt has been made to clarify at what speed the truck was moving. No effort has also been made to find out what this witness meant by high speed. To some persons a speed of even 10 or 12 miles an hour may be sufficiently high, whereas to others a speed of 20 or 30 miles an hour may be modest or reasonable On the evidence in this case, it cannot be held that Bhanwarlal was driving the truck which would justify his rashness or negligence. There is to the contrary the evidence of Abdul Shakoor, P.W. 5, which suggests that the truck''s speed was normal. The cleaner of the truck No RJR 1000 Gendilal, P.W. 4, says that he could not see any person in front of his truck, nor was any person struck from the front portion of the truck.

What Section 304-A, Indian Penal Code, requires is causing of death by doing any rash or negligent act, and that means that death must be the direct or proximate result of the rash or negligent act. I may in this connection refer to Emperor v. Omkar Rampartap 4 Bom. Law Reporter 679 in which Sir Lawerance Jenkins interpreted Section 304-A, Indian Penal Code, as under:

To impose criminal liability u/s 304-A, Indian Penal Code, it is necessary that 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 author''s negligence. It must be the causa causons: it is not enough that it may have been the causa sine qua non.

This view has been approved by their Lordships of the Supreme Court in Kurban Hussein Mohammedali Rangwalla Vs. State of Maharashtra,

The mere fact that the accident would not have taken place if the accused would have been still more cautious would not be enough to make him liable u/s 304-A, Indian Penal Code The death of Mrs. Soni in this case was not directly the result of a rash or negligent act on the part of the Petitioner and was not the proximate or efficient cause without the intervention of another''s negligence As has been stated above, Mrs. Soni wanted to cross the road, unmindful of the fact whether a truck was coming from the opposite direction, and dashed against one side of the vehicle. It is true that a person on foot has an absolute right to be on the highway and is entitled to the exercise of reasonable care on the part of a person driving a vehicle on it. But at the same time he or she must take reasonable care of himself or herself: vide Kayser v. London Passenger Transport Board (1950)1 All E.R. 231. The amount of care reasonably to be required of him or her depends on the usual and actual state of the traffic. He or she is not absolved from the duty of taking care to avoid collision with a vehicle emerging from the opposite side of the road. For the above reasons and from the above evidence it is plain that death in this case is not the direct or proximate result of rash or negligent act on the part of the driver.

Mention may be made inter alia that the Sub-Inspector, Bhim Ganj Mandi, Kotah, Taj Mohammed, P.W. 8. conducted the entire investigation with utmost recklessness. He left several gaps in the investigation. No attempt seems to have been made to catch hold of the witnesses who might have been present near about the road. He also made no attempt even to bring to the notice of the court the position of Mrs. Soni in relation to the truck after it was stopped. The investigating officer no doubt prepared a site plan Ex. P. 6. A perusal of the site plan demonstrates that it is of least assistance to the court. It only shows the road and the place where the accident happened. There is no mention in the site plan as to where Mrs. Soni was actually struck and where she actually fell down. It is apparent that the investigation by the police in this case was most unsatisfactory as has been pointed out by the learned Dy Govt. Advocate himself. The Station House Officer has even failed to show from which side which truck was being driven. In this manner the facts which have been put forward are hopelessly inadequate to prove that the death of Mrs. Soni was the result of the accident caused by the rash or negligent act of the accused Bhanwarlal. It may also be mentioned that Mrs. N.K. Aggarwal, Additional Munsiff-Magistate No. 2, Kotah, has conducted the trial slovenly and in a slipshod manner. He has not even cared to examine in detail Dr. R.K.. Gupta, P.W. 3, and the Mechanical Expert Bishan Singh, P.W 6. He has simply got their certificate exhibited. Under the law it is deposition of medical or expert witness that can be taken in evidence. Their certificates are extra-judicial matters and cannot be received in evidence. They can be used by the witnesses concerned as an aid to their memory There is no special rule in the Code of Criminal Procedure making their certificates admissible in evidence without calling them as witnesses. The Magistrate has not even cared to read out the charge-sheet to the accused and obtain his replies. The relevant columns in the charge-sheet meant for the insertion of the replies of the accused have been left blank. That is how in a serious matter like this the Magistrate has conducted the trial.

In the result, I accept this revision application and acquit Bhanwarlal of the offence u/s 304-A, Indian Penal Code. He is on bail and need not surrender to his bail bonds, which hereby stand discharged.