Daya Kishan vs State of Haryana

R.L. Anand, J.

This revision petition I am disposing of after reading grounds of revision in the absence of the counsel for the petitioner and with the assistance rendered by Shri H.P. Verma, Deputy Advocate General, Haryana.

This revision petition is directed against the judgment dated 17th March, 1987 passed by the learned Sessions Judge, Kurukshetra, who affirmed the conviction of the petitioner Daya Kishan under Sections 304A, 337 and 279, Indian Penal Code. In the matter of sentence the learned Sessions Judge reduced the substantive sentence from 1 years'' R.I. to one year R.I. under Section 304A, I.P.C.; from two months'' R.I. to one month''s R.I. under Section 337, I.P.C., but no reduction was made in the matter of sentence under Section 279, I.P.C., under which the petitioner was sentenced to undergo R.I. for one month. The petitioner was earlier convicted and sentenced vide judgment dated 4th November, 1986 and order dated 5th November, 1986, respectively, passed by the Judicial Magistrate Ist Class, Kurukshetra, who convicted the petitioner under Sections 304A, I.P.C., 337 I.P.C. and 279 I.P.C. Besides awarding substantive sentence the petitioner was also imposed a fine of Rs. 500/ and in default of payment of fine, he was ordered to undergo further R.I. for a period of three months, for the offence committed under Section 304A, I.P.C.

The allegations against the petitioner were that on 10.7.1981 when he was driving Haryana Roadways Bus No. HUR1507 from Delhi towards Ambala, at Murthal Bus Stand at about 11 P.M. he took liquor in spite of the protest of the passengers. At 2 A.M. he reached near Pipli while driving the Bus rashly and negligently. A tanker came from the opposite direction. The petitioner being under the influence of liquor, had no control over the bus and the bus struck against a tree; thereby causing injuries to most of the passengers, who were removed to the Civil Hospital, Shahabad, and later on one passenger by the name of Smt. Kaushalya Devi expired at about 4.55 A.M. and other passengers, including Shri Shammi received injuries. The case proceeded when Sarvshri V.K. Bhardwaj and R.C. Jain came to the Police Station, Shahabad, along with other passengers and made a written report alleging therein that on 10th July, 1981 they along with other passengers boarded Haryana Roadways Bus No. HRU1507 from Delhi at about 10.30 P.M. Some of the passengers had to alight at Ambala Cantt. The bus started from Delhi at about 10.40 P.M. At about 11 P.M. the bus reached at Murthal Bus Stand. The driver was driving the bus at a very fast speed. He took liquor at Bus Stand Murthal, though all the passengers protested against the taking of the liquor by him. Again the bus started from Murthal and at about 2 A.M. it reached near Pipli. All the passengers, who were the occupants of the bus, requested the petitioner not to drive the bus rashly and negligently because he was under the influence of liquor. From Delhi to the place of occurrence the accused avoided the accidents several times and all the passengers requested him to drive the bus slowly and safely but the petitioner did not pay any heed towards the requests of the passengers. The conductor also went near the accused and sat on the bonnet of the bus. They also requested the conductor to advise the petitioneraccused to drive the bus slowly, but all in vain. As the petitioner lost his control over the bus, a tanker came from the opposite direction. The accused took the bus on his extreme left and ultimately struck it against the tree. Most of the passengers received injuries on their persons and they were transported to Civil Hospital, Shahabad through some other vehicle. The present occurrence had taken place due to the rash and negligent driving on the part of the accusedpetitioner.

The case was investigated. The Investigating Officer went to the place of occurrence and prepared a rough site plan. The accused was arrested and he was medically examined and it was found that he was under the influence of liquor. Ruqa was also received from the Civil Hospital regarding the admission of Smt. Kaushalya Devi and Sammi injured. The Investigating Officer rushed to the Civil Hospital in order to record their statements. Smt. Kaushalya Devi was not fit to make a statement. Shammi was fit to make a statement and his statement was recorded under Section 161 Cr.P.C. Later on Smt. Kaushalya Devi and one Anil Bandhu expired in the hospital. Inquest report was prepared under Section 174, Cr.P.C. and postmortem examination was conducted The bus in question was taken into possession. The Investigating Officer also collected the medicolegal report of Anil Bandhu. After the completion of the investigation, the accused was challaned under Section 304A, 337 and 279 of the Indian Penal Code.

Learned Magistrate supplied the copies of the documents to the accused and framed charges under sections 279, 337 and 304A, I.P.C., to which the accused pleaded not guilty and claimed trial. In order to prove the charges, the prosecution examined P.W. 1 Dr. Bhasker Gupta, Medical Officer, Civil Hospital, Shahabad, P.W. 2 Shri N.K. Gandhi, Medical Officer, L.N.J.P. Hospital, Kurukshetra; P.W.3 Darshan Singh, P.W. 4 Jasbir Singh Sarpanch, P.W. 5 Balak Ram, Photographer, P.W. 6 Shiv Raj, P.W. 7 Suresh Kumar, P.W. 8 Tilak Raj, P.W. 9 V.K. Bhardwaj, P.W. 10 Mohan Lal, P.W. 11 Shammi, P.W. 12 Fateh Singh, P.W. 13 Mool Chand, and P.W. 14 R.C. Jain. On closure of the prosecution evidence, the statement of the accused was recorded under Section 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused denied the circumstances as alleged by the prosecution witnesses. However, he admitted that on the fateful day, he was driver of bus No. HRU1507. Learned Magistrate believed the prosecution version and rejected the defence version and convicted the petitioner in the manner as described above. In para No. 13 of the order passed by the learned Magistrate it has been stated as under :

".......In this case all the PWs. have categorically stated that the accused had consumed liquor at Murthal Bus Stand and he again started driving the bus rashly and most of the occupants of the bus persistantly requested the accused to drive the bus slowly so that the accident may be avoided. But the accused did not pay any heed towards the request of the PWs. rather accelerated the speed of the bus. As the accused was not in a position to control the bus, therefore, the present occurrence had taken place. All the PWs., who appeared on behalf of the prosecution, have stated in so many words that the present accident had taken place due to the rash and negligent driving on the part of the accused. No doubt some other vehicle might be coming from the opposite side as argued by the learned counsel for the accused but if the vehicle of the accused was at normal speed, the present accident could have been avoided."

Finally the learned Magistrate vide judgment dated 4th November, 1986 and order dated 5th November, 1986 convicted and sentenced the petitioner in the manner stated above and did not think it proper to extend the benefit of probation to him.

Aggrieved by the judgment and order passed by the learned Magistrate, the petitioner filed appeal in the Court of Sessions Judge, Kurukshetra, who vide judgment dated 17th March, 1987 dismissed the appeal but granted the benefit to the petitioner in the matter of sentence, as stated above. The operative portion of the judgment is mentioned in para No.5, which can be quoted as follows :

"5. In view of the above discussion, I am satisfied that if the driver had kept a proper look out and not driven the bus rashly, he could have noticed the tanker from a distance and avoided the accident. Since he was under the influence of liquor, he could not by exercising ordinary care and caution avoid the accident. Sequelly, I confirm the impugned judgment of conviction."

I have gone through the grounds of revision drafted by the lawyer of the petitioner and have heard Shri H.P. Verma, Deputy Advocate General, Haryana, and I am of the considered opinion that the present revision petition is without any merit and is liable to be dismissed.

Frontal reason, which has emerged out from the grounds of revision is that admittedly a tanker was coming from the opposite direction and in order to avoid a head on collision with the approaching tanker, the petitioner drove the bus towards the left side and in that process he struck the bus against a tree, and in support of this submission, reference has been made to the statements of P.W. 9, P.W. 10 and P.W. 11. It has come in the statement of P.W. 9 V.K. Bhardwaj that the bus crossed Pipli towards Ambala. A tanker was seen coming from the front side. The accused in attempt to avoid impact with the tanker drove the bus to the left side of the road and in that process the bus struck against a tree on the left side of the road. P.W. 10 had stated that when the bus crossed Pipli towards Shahabad, at about 1 A.M. some vehicle came from the front side. According to P.W. 11 he could not say if the accident had taken place due to some fault of the driver. This witness has also admitted in the crossexamination that the tanker had come from the front side and the driver had taken the bus to the left side to save the tanker. From the statements of the above three witnesses, an argument was built by the petitioner in the grounds of petition that no negligence or fault can be attributed to him and in these circumstances, both the Courts below have committed illegality in convicting him under Sections 304A, 337 and 279, I.P.C. Section 304A, I.P.C. lays down that whosoever causes death of any person by doing rash and negligent act, not amounting to Culpable homicide, shall be punished with imprisonment which may extend to two years or fine or both. Rashness is a positive act, which is performed by the author of the injury. culpable negligence is an omission on the part of a person, when he is supposed to perform a particular duty or act but fails to perform it and causes death of a person not amounting to culpable homicide. The allegations against the petitioner are that as soon as the bus started from Delhi and it reached the bus stand at Murthal, the petitioner started taking liquor, and, in fact, he consumed liquor against the wishes of the passengers, who advised him not to do so. It was none of the business of the petitioner while driving a heavy vehicle like bus, to be under the influence of liquor. His act of taking liquor is nothing but a positive act towards the act of performing a rash act, which ultimately had the effect of an accident. Had the petitioner avoided to take the liquor at Bus Stand Murthal, he might not have involved himself as well as the other occupants of the bus in the present accident. It was not the business of a driver to take liquor and to drive the bus, specially during night under the influence of liquor. His act of consuming liquor per se is an act of dereliction of duty. It is the positive statement of the witnesses that the petitioner was driving the bus in a rash and negligent manner and he avoided some accidents on the way but this time he could not do so, as a result he struck the bus against a standing tree when he wanted to swerve it in order to avoid accident with the approaching tanker. The case of the petitioner himself is that the tanker was coming from the opposite direction; meaning thereby that he had already realised the approaching tanker. It has not come in the statement of any of the witnesses that the driver of the approaching tanker was driving it in a rash and negligent manner or that he was driving it in a zigzag manner or that the driver of the tanker had lost control of the tanker, giving chance to the present driver (petitioner) to swerve the bus to its extreme. The petitioner cannot make a unilateral defence without reference to the proved facts. He has failed to prove that the driver of the approaching tanker was driving it against the traffic rules or the speed of the tanker was such that it created problem for the present petitioner.

It was then submitted by the petitioner in his grounds of revision that the prosecution failed to produce the material evidence to bring home the guilt. Neither the Investigating Officer had been examined nor the photographs of the place of accident had been taken. In spite of the fact that the petitioner was medicolegally examined, and his blood and urine were taken into possession in order to prove the allegations, but the report of the Chemical Examiner has not been proved. The argument is without any weight. No doubt, the Investigating Officer is an important witness of the prosecution in some cases but here the gravamen of the allegations against the petitioner were that he drove the bus in a rash and negligent manner and he swerved it to the extreme so as to hit it against the standing tree. The petitioner himself admits this part of the allegation, but with a defence that he wanted to avoid the accident with the approaching tanker. The accident had taken place on the G.T. Road, which had enough width. The approaching vehicle coming from the opposite direction has also the right to use the road. The petitioner while driving the heavy vehicle was dutybound not only to ensure the safety of the passengers but he had also to ensure that the drivers of other vehicles had also the right to use the road. There is no evidence on the record to show that the driver of the approaching tanker was performing his duty in a negligent manner and in these circumstances the petitioner cannot take the benefit that the Investigating Officer has not been examined in this case. Moreover the doctor has clearly stated when he examined the petitioner that he was smelling alcohol. There is positive and direct evidence of the passengers that in spite of their protest, the petitioner took liquor at Bus Stand Murthal. He on the way drove the bus in a negligent manner and in these circumstances the petitioner cannot be permitted to take the advantage of his own wrongs.

It was finally made out in the grounds of revision that the petitioner is a public servant and the Courts below committed an illegality in not extending the benefit of probation to him. This submission of the petitioner is devoid of any merit. This Court cannot lose sight of the fact that due to the negligent act on the part of the petitioner, two valuable lives have been lost. It is not a case where the benefit of probation should have been given to the petitioner.

Resultantly, this Court is of the opinion that there is no illegality or infirmity in the impugned judgments, which are based on appreciation of evidence. Consequently, the present revision petition is devoid of any merit and the same is hereby dismissed.

Intimation be sent to the Chief Judicial Magistrate about the dismissal of the revision petition, so that the petitioner may undergo the remaining part of the sentence awarded to him.

JUDGMENT accordingly.