Bharat Singh vs State Of Uttarakhand

Sharad Kumar Sharma, J

The revisionist is a driver of the offending vehicle i.e. the bus in question, which has met with an accident on 8th July 2006 whereby, as per the contents of the FIR No. 313/2006 - registered under Sections 279, 337, 338, 304A of IPC on 08.07.2006. It has shown that the revisionist who was the driver of the bus bearing Registration No. UA-07-C-9232. It is said that the said bus, which was carrying passengers in it, has reached about 100 metres towards Uttarkashi at Dharasu bend, the driver lost his control over the bus in question and as a consequence thereto, the bus fell into the deep gorge about 350 deep, resulting into the death of 23 persons instantly on spot who were being carried in the Bus in question and 7 passengers were shown to be injured.

As per the statement recorded by the surviving passengers, i.e. PW1, PW2, PW10, PW4, they have recorded their statement before the investigating officer, as well as before the learned trial Court, who have recorded their statement in the manner that the sole reason, which has been attributed to the accident was the rash and negligent driving of the bus in question by the revisionist as a result thereto the Case Crime No. 313 of 2016 dated 8th July 2006, which was registered at P.S. Dharsu khestra Dunda, District Uttarkashi by complainant PW10, Birendra Singh as against the revisionist was tried and consequently as a culmination of the trial by the impugned judgement dated 17th April 2010, as rendered by the Judicial Magistrate in Criminal Case No. 47 of 2010, State v. Bharat Singh, the revisionist has been convicted for the commission of offence under Section 279 of IPC, for which he has been convicted to undergo one month of simple imprisonment and a fine of Rs. 500/-has been imposed upon him, for the commission of offence under Section 337 of IPC, the revisionist has been directed to undergo sentence of one month of simple imprisonment and a fine of Rs. 500/-has been imposed upon him. Similarly, for the commission of offence under Section 338 of IPC, he has been directed to undergo a sentence of three months of simple imprisonment and a fine of Rs. 500/- has been imposed upon him and for the commission of offence under Section 304A of IPC, he has been sentenced to undergo six months simple imprisonment and a fine of Rs. 500/- has been imposed upon him.

On a challenge being given to the said judgement of conviction, as rendered by the Judicial Magistrate on 17th April 2010 in a Criminal Appeal being Criminal Appeal No. 17 of 2010, Bharat Singh v. State, the learned Appellate Court too has affirmed the judgement of the learned trial Court as rendered in Criminal Case No.47 of 2010, State v. Bharat Singh, and as a consequence thereto, the revisionist has been directed to undergo sentence of conviction and to pay the penalty amount, as imposed by the learned trial Court against each of the offences for which he was convicted.

It is these two impugned judgements, which are put to challenge in the present criminal revision on the ground, as argued by the learned counsel for the revisionist that the entire story with regards to the occurrence of the accident on 8th July 2006, resulting into the death of 23 passengers, who were travelling in the bus in question on the ill fated day, it is confined upon the determination as to under given circumstances, whether at all, the revisionist can be held responsible for a rash and negligent driving to bring an offence within the ambit of Section 279 of IPC.

The learned counsel for the revisionist further submitted in his argument that if the statement which has been recorded by the Court below, particularly, the statement of prosecution witness Nos. 1 and 2, i.e. Virendra Dutt and Jagdish itself, these two exclusive witnesses, who were the surviving passengers of the bus in question they cannot be exclusively taken into consideration to foundation conviction or in order to determine and derive a conclusion that the revisionist was responsible for deliberate and conscious rash and negligent driving resulting into the said accident. There has to a determination of waywardness in the driving of the offending vehicle, to attribute negligence, which has to be more than fast or speedy driving it has to have a conscious notion of driver about the probability of resulting into accident.

The learned counsel for the revisionist has also made reference to the statement as recorded by Balbir Singh, who was the technical expert, who recorded his statement as PW6 in order to find out as to whether there was any technical snag in the vehicle in question prior to its meeting with the accident in order to attribute that the accident was not on account of rash and negligent driving of the revisionist, but rather it was on account of a technical snag, which might have occurred at the time of occurrence of the accident to bring the accident out of act of personnel negligence, and to hit it towards the technical flaw which might have occurred in the vehicle.

Based on the aforesaid premise, the trial proceeded and the learned trial Court, while considering the respective evidences as led by the parties and in particular while considering the statement of PW1 Virendra Dutt, the trial Court has taken into consideration, who is said to be the injured person and an eyewitness of the accident dated 8th July 2006. While determining the contents of the statement recorded by PW1, the learned trial Court has also considered the statement of the prosecution witness Jagdish, i.e. PW2, who too was also the passenger travelling in the bus in question, who had vaguely in his statement as recorded by him has submitted that the sole reason for the accident was on account of rash and negligent driving of the revisionist, due to which the bus went out his control and fell into the deep gorge resulting into the death of the 23 passengers, who were travelling in it.

The prosecution in order to further support their case about the negligence of the revisionist by rash and negligent driving, they had placed reliance on a statement recorded by PW6 i.e. Balbir Singh, who was the technical expert who gave his technical report paper as exhibit no. 10, who has not specifically recorded any statement or finding in his report before the learned trial Court nor in the report submitted by him before the learned trial Court with regard to the technical examination of the vehicle i.e. the offending bus in question to show that as to whether the cause of accident was on account of the technical snag caused in the bus in question. But the learned trial Court, while determining the impact of the statement of PW6 Balbir Singh, had also while considering the report of the technical expert has simultaneously proceeded to venture out further to exclusively consider the statement of the prosecution witnesses i.e. the passengers, who were travelling in the bus in question to substantiate the fact with regards to the negligence on part of the revisionist. Both the Court failed to scrutinize the effect of statement of passengers, who recorded their statement, it has to be considered keep in mind that it had an element of sudden reaction, due to accident, it obviously has an element of more emotional and psychological blend in it, it has to read with extreme precaution for convicting a person, because there is a possibility of the statement being de hors to real practical situation which prevailed at the moment of accident. Consequently on considering the statement even that of PW8 i.e. the doctor who has conducted the post-mortem on the deceased persons as well as who had medically examined the injured persons of the said accident who submits that as far as the injuries of the injured persons are concerned, they are simple in nature and as far as the death of 23 persons are concerned, that was affirmed by the PW8 i.e. the doctor Anand Singh Rana, but he was not the doctor who appeared before the Investigating Officer at the time of investigation was not named amongst 17 witnesses by the Investigating Officer.

Based on the aforesaid finding and before considering the rival arguments as extended by the learned counsel for the revisionist, contending thereof that for the purpose of convicting a person for the commission of offence under Section 279 IPC, the burden to prove that the bus in question in fact was being driven in a rash and negligent manner, has had to be brought within the parameters contained under Section 279 IPC and that has had to be beyond a reasonable doubt and merely because of the statements of the two prosecution witnesses, who were adduced before the trial Court, who were travelling in the bus in question, that in itself cannot be a safe mode to derive the conclusion that the revisionist was responsible for his rash and negligent driving resulting into the accident, hence this Court is of the view that if the statement of PW6 i.e. the technical expert Balbir Singh is read in correlation with this statement of the prosecution witnesses i.e. the passengers of the bus in question, who have claimed themselves to be actual witnesses of the accident, supporting the fact of rash and negligent driving of the revisionist, cannot be exclusively taken as to be the basis to deduce that the revisionist was actually responsible for rash and negligent driving because in any of the statement its not there case that there was any waywardness in driving the bus by the revisionist.

This Court further on scrutinizing the records which have been produced before this Court and particularly the site plan, which has been submitted by the investigating officer, during trial as Exhibit ka-14, it shows that as per the site plan that when the bus in question was being driven on the road and if the driver lost his control over it, and it was about to skid off the road and was about to fall into the ditch, after getting out of control, the driver of the bus did applied its brakes and tried the best to avoid the accident, and as per the report given in point 2, it shows that for about 14 steps, there were marks of the tyre of the bus which occurs on account of sudden applying of brakes, which shows that the revisionist had made all his efforts to control the bus from falling into the gorge by it seems circumstances were such that it couldn't be avoided and hence it cannot be said that merely because of the statement of the prosecution witnesses that the revisionist could be made solely responsible for the commission of offence under Section 279 IPC. It was also because of sudden untoward and uncalled for circumstances, which prevailed at that point of time on 8th July 2006 i.e. date of accident.

Even if the judgement of the learned trial Court is scrutinized and taken into consideration in its totality, the basis of recording its finding on rash and negligent driving of the revisionist was exclusively on the basis of oral testimony of the passengers only without there being any other evidence being considered or any other independent witness, recording his statement in order to substantiate the commission of offence under Section 279 of IPC. This Court has also to dealt with the aspect as to whether and under what circumstances a person can be held responsible for the commission of offence under Section 279 of IPC, because as per the ratio propounded by the Hon'ble Apex Court, it has laid down that merely if a vehicle is being driven at a higher speed, that in itself will not attribute to deduce that it had an element of negligence to a commission of offence under Section 279 of IPC, because there is some additional essential element which is further required to be present in order to establish an offence under Section 279 of IPC that it was driving of a vehicle as a joy ride or with an absolute conscious state of mind and it should not be inferred from the speed of the vehicle that in itself amounts to a rash and negligent driving, but considering the present case at hand since there is no such independent witness, who has recorded his or her statement pertaining to rash and negligent driving, coupled with the fact that the other documents which has been placed on record, further do not exclusively support the case of the prosecution about an absolute negligence on part of the revisionist in the commission of offence and furthermore, rationally if it is inferred, it could be said that no driver of the vehicle will deliberately indulged himself in a manner of driving of a vehicle which will result into an accident that too when there is possibility of putting his own life in peril. The term "accident", in itself means a sudden incident which happens without there being any intention or probable expectation attributed to it.

The basic element for the purposes of convicting a person under Section 279 IPC, it requires an establishment of a fact that the driving of the vehicle was in a rash and negligent manner and its basic effect would be an endangerment of a human life or it is likely to cause an injury or a hurt to a person. In order to make out an offence under Section 279 IPC, the essential ingredients to constitute an offence punishable under the aforesaid Section, there has had to be an element of negligent driving or riding of a vehicle and that too coupled with the circumstances where if it is proved that the accused person has indulged in a deliberate offence under Section 279 IPC, it is be shown that he had to make an effort to avoid the commission of the said offence and if despite of best efforts, if still the accident occurs, it cannot be said that it was a negligence with an intention or a knowledge of causing hurt to the other persons.

Another element which is required to be satisfied is that there has to be a conscious act with the knowledge that on account or the manner in which the vehicle was being driven, it would be resulting into a causing of a hurt or an injury to a person utilising a public passage. What is required for the offence is that there has to be mental aptitude of the doer of the crime as to be inferred from the attending circumstances which may very in each and every case depending on the circumstances. Negligence or rashness in the driving of a vehicle it should involve in itself an element of a breach of duty caused by omission by an act by the accused person which should be something more than an act reasonable man is guided by those circumstances which prevailed and which ordinarily would regulate the conduct of a human affair to do an act, which a common prudent person would have not indulged into to make him liable for an offence under Section 279 IPC. In the case at had, as has already been observed that the manner in which the accident was caused and on account of the report of the technical expert on record, it shows that though the vehicle was being driven by the revisionist, but as per the technical report, it shows that the revisionist has made an effort to avoid the incident which is complained of under Section 279 IPC. What is required is that in order to attribute rashness, it should also have an element of a conscious act of exposure to risk on part of the accused person in doing an act and it should have an element of a conscious activity of indulging into the commission of an offence, where an accused person was conscious that it would be amounting to a risk of life of a person as a result of the accident.

In accordance with judgement as reported in AIR 1956 MB 141, State v. Gulam Meer, the ratio wherein the Full Bench has held out that a hazard of negligence in driving and the term 'rashness', as included under Section 279 IPC, it should always be attributed to a degree of injury which is almost likely to occasioned, which should involve in it a criminality of an act and which has to be interpreted based upon the facts and circumstances on each case, it cannot be unilaterally applied that in any accident where there is a bodily injuries caused or it results into a death for commission of an offence under Section 304A, it would be automatically inferred to involve in it a rashness or negligence in driving the vehicle.

What is required in order to establish negligence, this Court is of the opinion that an establishment of an act as to whether there was an absence of a reasonable standard of care and precaution which is expected to be taken by a normal human being who was driving a vehicle. If there is a slightest evidence on record to show that a person has taken all precautions prior to causing an accident resulting into an injury or death it cannot be treated that a person was liable for an offence under Section 279 of IPC, as there was an animus attempt to avoid the occurrence and, where the act establishes an attempt to take a reasonable care to avoid an accident. The test which is required to be considered is that when the charged person for commission of offence further he has taken an utmost precaution as a prudent or a reasonable man is expected to take and if that element is itself established, then it would be sufficient to guard him against the danger and injury to the other person so there cannot be an absolute or inflexible standard beyond which it could be determining as to whether a person could be held guilty for negligence or the commission of offence under Section 279 IPC. It has been laid down in the various pronouncements that for the purposes of Section 279, which deals with rashness and negligence, it has to be described in a manner that it should be something more than a careless or an error in judgement. It is an act of a much higher degree, than what is required for in a civil suit for the damages and it should not be an act to be looked with an intention of a manslaughter, but it should be out of an act of unintended rashness and without a conscious act of causing injury to other person and if an accused person is proved to have taken care to avoid an accident he cannot be held out to be responsible for rashness and negligence to convicting for the commission of offence under Section 279 IPC.

Hence, in that view of the matter, this Court is of the view that the finding(s), which has been recorded by the Courts below pertaining to the negligence on part of the revisionist, which has ultimately resultanted into of the commission of offences under Sections 337, 338 and 304A in order to establish an offence under the subsequent offences, the first and foremost ingredient, which is required to be established beyond doubt would be under Section 279 IPC.

In that view of the matter and in view of the records, which has been placed before this Court, this Court is of the view that it cannot be said that the revisionist was exclusively responsible for rash and negligent driving of the bus in question. Consequently, the revision is allowed. The impugned judgement dated 17.04.2010 as passed by the Judicial Magistrate, Uttarkashi in Criminal Case No. 47 of 2010, State v. Bharat Singh, as well as Judgement dated 02.04.2012 as passed by the Sessions Judge, Uttarkashi in Criminal Appeal No.17 of 2010, Bharat Singh v. State of Uttarakhand, are set aside. The revisionist, who has already been directed to be enlarged on bail by the order as passed by the coordinate Bench of this Court dated 1st May 2012, need not required to surrender. However, the bail bonds with two sureties, which have been extended by him to avail the bail, as granted to him on 1st May 2012, would stand discharged.