Laxman Singh vs State of Madhya Pradesh

As both the aforesaid criminal revisions have been preferred being aggrieved by the same impugned judgment dated 10-09-2005 passed in Criminal Appeal No. 50/2002, therefore, both these criminal revisions are being decided by this common order. The petitioners have preferred the aforesaid criminal revisions separately u/s 937/401 of Cr.P.C. assailing the judgment dated 10.9.2005 passed in Criminal Appeal No. 50/2002 by the learned 7th Additional Sessions Judge, Gwalior (MP) confirming the order dated 4-6-2002 passed in criminal case no. 383/2000 by the learned Special Railway Magistrate First Class, Gwalior (MP) convicting the petitioners for offence under sections 304-A and 337 of IPC and sentencing each of the petitioners to undergo 6 months SI with fine of Rs. 3000/- and pay fine of Rs. 500/- respective, with default stipulation. The petitioners have also been convicted for offence u/s 175 of the Indian Rail Act and each of them has been sentenced to undergo 3 months SI with fine of Rs. 500/-, with default stipulation.

Succinctly the facts of the case are that on 5-7-1998 a head on collision took place between two trains namely 6317 Down Himsagar Express and 1107 Up Bundelkhand Express, in which two persons were reported to be dead and some passengers were injured. It is alleged that Himsagar Express was driven by the main driver Laxman Singh and the Assistant Driver Jitendra Kumar and due to negligence of aforesaid drivers/petitioners, the alleged incident took place. The learned trial court after trial held the petitioners guilty for offence punishable under sections 304-A and 337 of IPC and also u/s 175 of the Indian Rail Act and sentenced them accordingly by the judgment dated 4-6-2002. Being aggrieved by the aforesaid judgment of conviction and sentence, the petitioners have preferred a criminal appeal but the learned lower appellate court had also rejected the appeal of the petitioners and confirmed the judgment passed by the learned trial court.

Being aggrieved by the impugned judgment of conviction and sentence passed by learned both the courts below, the petitioners have preferred these two criminal revisions separately on the ground that both the courts below are not justified in convicting the petitioners in spite of the fact that ample evidence was available on record showing that the alleged incident took place due to negligence of the authorities controlling the signals.

Learned counsel for the petitioner Jitendra Kumar has challenged the impugned judgment on the ground that he was only Assistant Driver at that relevant time and there is no negligence on his part as he was not driving the train.

The main question for consideration before this court in these criminal revisions is whether both the courts below are justified in convicting and sentencing the petitioners by the impugned judgment.

Learned counsel for the petitioner Jitendra Kumar has drawn attention towards the provisions of Railway Act regarding responsibility for driving the rail engine. According to condition no. 4.20 (3), if the engine is running and the driver becomes unable then Assistant Driver or Fireman whosoever is having eligibility may drive the train cautiously upto next station and if Assistant Driver or Fireman is not having eligibility then Assistant Driver or Fireman shall stop the train and send the message to the Station Master of the nearest Station for providing driver for running the train. Learned counsel for the petitioner Jitendra Kumar has submitted that petitioner Jitendra Kumar is not responsible for any negligence. Both the courts below have committed error in convicting the petitioner Jitendra Kumar overlooking the duties entrusted to him under the provisions of the Railway Regulations.

Learned counsel for the petitioners have further drawn attention towards the statement of Sushil Kumar Vajpayee (PW-8) who was posted at Cabin-A as ASM on the date of incident. This witness in his cross-examination has stated that if there was any mistake in break system of Himsagar Express, he had no knowledge. It is true that if there is any mistake in break, the train will not stop in red signal. This witness has stated that yellow signal was given to Bundelkhand Express and when yellow signal was given, there was red signal on the same track towards down and that signal after giving yellow towards Up, does remain red.

Learned counsel for the petitioners have further drawn attention towards the statement of Pradeep (PW-9) who was Assistant Driver in 1107 Up Bundelkhan Express at that relevant point of time, has also admitted that if there was any sudden fault in the engine, the train can not stop. Learned counsel for the petitioners have also submitted that there is no technical report that breaks of Himsagar Express was in working condition and before giving yellow signal to Bundelkhand Express, it was duty of the Station Staff controlling the traffic of the trains to ascertain the position of the train coming from opposite direction and there is no evidence that position of the train driven by the petitioners was ascertained. It has been admitted by Ramesh Chandra (PW-7) who was Sub Station Manager on the date of incident that if there was any technical fault in break, the train can not be controlled/stopped. He cannot say that there was any technical fault in the Himsagar Express between Sitholi and Gwalior stations. Pradeep (PW-9) who was Assistant Driver in 1109 Up Bundelkhand Express has admitted that he saw Himsagar Express coming from opposite side, he immediately asked his driver to apply break but even after applying breaks, both the trails collided. It may be possible that suddenly signals were given to Bundelkhand Express for leaving platform and it cannot be expected from the train coming from opposite side to stop forth with as the driver of the Bundelkhand Express could not stop his train immediately. Further, the Signal Controlling Staff posted at the station is more responsible for the accident and their responsibility cannot be put on the shoulder of the drivers of one train which driven by the petitioners.

Learned counsel for the petitioners have also submitted that injury report of any of the victims were not produced, therefore, it cannot be held that due to negligence of the petitioners, some passengers died and injured. In support of their arguments, they have cited the judgment of Gauhati High Court in the matter of Bhanda Garh Vs. State of Assam, and another judgment of Kerala High Court in the matter of P.C. Poulose Vs. State of Kerala, , in which it has been held that "in a rash or negligent driving, prosecution neither proving cause of death of deceased nor examining any doctor to prove nature of injuries sustained by victim. Conviction under sections 304A and 279 IPC is not proper."

In the present case, there is no report regarding the train was driven by the petitioners rashly and negligently and also no report regarding technical fault in break at the time of accident. Further, the responsibility for bringing two trains on the same track or starting one train without confirming other train coming from opposite side is of the signal controlling staff posted at that relevant point of time at the station. The petitioner Jitendra Kumar was not having the charge of driving the train, therefore, his conviction cannot be said to be justified in law by both the courts below. So far as petitioner Laxman Singh is concerned, there is no evidence regarding break system of the train and the responsibility of the accident was on the shoulder of the traffic controlling staff. Therefore, in the absence of any technical report regarding condition of the breaks of the train driven by the petitioner Laxman Singh was proper, for any technical fault in the break system in the train driven by the petitioner, he cannot be convicted for the charge proved against him.

Accordingly, both these criminal revisions are allowed. The impugned judgment passed by both the courts below are hereby set-aside. The petitioners (Laxman Singh and Jitendra Kumar Parashar) are acquitted of the alleged offence. They both are on bail, their bail bonds stand discharged. Fine amount, if any deposited by them, be refunded back to them. A copy of this order be sent to the learned trial court for its compliance.