Mohan Singh vs State of Punjab

S.S. Sandhawalia, C.J.—Mohan Singh petitioner was convicted under sections 304-A and 337 of the Indian penal Code by the Judicial Magistrate 1st Class, Ludhiana, vide his order dated 29th November, 1973. A sentence of six months'' rigorous imprisonment and a fine of Rs. 200/-, or in default further rigorous imprisonment for one month, was imposed on him on the major charge and that of two months'' rigorous imprisonment plus a fine of Rs. 100/-, or, in default, further rigorous imprisonment for 15 days, on the charge u/s 3 7 of the Indian Penal Code The substantive sentences of imprisonment were directed to run concurrently On appeal, the learned 3rd Additional Sessions Judge, Ludhiana, in an exhaustive Judgment upheld the conviction and sentence of the petitioner.

Bhag Singh deceased had received the fatal injuries in the accident whilst P.W. Narinder Singh had suffered relatively insignificant and minor injuries therein. The case laid is that on the 28th October. 1972, at about 6.00 p.m. P.W. Narinder Singh then employed as a Sub Inspector in the Co operative Societies office at Ludhiana alongwith his colleague Bhag Singh deceased, an Inspector in that very Co operative Societies office, started on a cycle from their office situated in Civil Lines. Ludhiana Nairinder Singh P.W. was driving the cycle whilst Bhag Singh was sitting on the carrier thereof. They were apparently proceeding towards Krishna Nagar. At about 6.30 p.m. having reached near the Jaur sarak. Narinder Singh P.W. is alleged to have nodded by means of his right hand and then turned his cycle towards Krishna Nagar on his right side What is significant to note at this very stage is that there is no crossing or road turning at the spot and Narinder Sinah apparently was swerving to the right to go on to some other path for making a short cut towards Krishna Nagar The prosecution alleges that when they had crossed the road and reached towards the side of Bharat Nagar Chowk, the truck of the petitioner which was following them came from behind driven by the petitioner who did not blow the horn and dashed against their cycle. Narinder Singh complainant and Bhag Singh deceased are alleged to have fallen down as a result of the impact Whilst the rear wheel of the truck ran over Bhag Singh fatally injuring him at the spot, Narinder Singh P.W. escaped with trifling abrasions on hit both hands The truck stopped at some distance ahead and the accident is alleged to have been witnessed by Ranjit Singh P.W. 1 and Karnail Singh P.W. 2 who were sitting in the near by office of the Gill Transport Company.

A.S.I. Toginder Singh P.W. 7 is stated to have reached the spot in the course of patrolling and on the basis of a statement made by Narinder Singh P.W. the first information report was lodged at about 7. 15 p.m., the same day. After completing the necessary investigation at the spot and subsequently, the petitioner was challaned and convicted and sentenced as aforesaid.

4 The primary evidence against the petitioner is that of P.W. 9 Narinder Singh and P.W. 8 Ranjit Singh and Karnail Singh who gave the ocular account of the accident The corroborative testimony is that of the two medical witnesses and of the police officials who had participated in the investigation.

In this statement u/s 342, Criminal Procedure Code, the petitioner whilst denying the prosecution allegations against him took up the following forthright and plausible stand :--

I am innocent. I was driving my truck at a speed of 18 miles P.H. Bhag Singh deceased and Narinder Singh P.W. were going on a cycle. I turned my truck towards the right side in order to save them but the cycle of the deceased hit against the back portion of my truck. Had I not turned the truck towards the right side the deceased might have been run over from the first portion of the truck. The accident took place due to the wrong of Narinder Singh PW.

No defence, however, was adduced.

Now, certain significant features of the case do not appear to be in daubt at all. The accident took place on the national highway betwixt Ludhiana and Ferozepur and it is the case of the prosecution witnesses then selves that at the relevant point the same is as wide as 50 feet or more. It is again the common case that at or near the spot of occurrence there is no crossing or even a bye lane for proceeding towards Krishna Nagar. Nor is it in dispute that the point of impact of the deceased and the truck was on the right side of the road, if not the extreme part thereof and further that the deceased was not bit by any front part of the vehicle but admittedly was run over by the rear-wheel of the truck.

Now the aforesaid admitted facts proved a back-drop which does not appear to be very consistent with the findings of the guilt of the accused by the courts below The first thing which would catch the eye herein is that more or less it is the prosecution''s own case that Narinder Singh P.W whilst carrying the deceased Bhag Singh on his carrier suddenly swerved towards the right by making some kind of a sketchy signal To quote from his examination-in-chief itself, he states that he had nodded his right hand before taking the turn and then turned his cycle immediately towards the right across the road towards Krishna Nagar. On this witness''s own showing the time was about 6.20 p.m. or beyond on the 28th October, 1972, and according to his own evidence in cross-examination, it was then dark. This apart, P.W. 1 Ranjit Singh in his testimony has further stated in no uncertain terms that a tempo had just crossed Narinder Singh and he suddenly swerved towards the right. It is obvious that Narinder Singh and the deceased had no right of way to cut across the road peremptorily without apparently making the least effort to see whether the road was clear or not. It is the common case that the petitioner was driving his loaded truck on the highway behind the cycle of the deceased and P.W. Narinder Singh and could not possibly anticipate an acrobatic turn to the right. From the prosecution testimony itself it is evident that in the situation in which the petitioner was placed, he swerved as far to the right as he could, possibly in order to avoid a head on running over the persons on the cycle In this maneuvers he, in fact, very nearly succeeded and it is the common case that no front part of the vehicle struck the two persons on the cycle and evidently the hind part seems to have grazed against the puzzled persons on the cycle resulting in the fall of the re-ceased from the carrier and his subsequent running over by the rear wheel of the truck. The learned lower appellant court in appraising the evidence of Ranjit Singh and Karnail Singh have without much basis observed that both of them were apparently trying to help the petitioner. It is significant to note that the prosecution did not in any way challenge the veracity of their account by seeking to cross examine them In fact, P.W.1 Ranjit Singh and P.W, 2 Karnail Singh can apparently be considered the only independent witnesses in the case because P.W. 9 Narinder Singh being a colleague of the deceased and himself involved in the accident where his negligent driving of the cycle was an issue is obviously a biased witness. The evidence on the record leaves hardly any manner of doubt that the sudden and unwarranted swerving of unsteady cycle by Narinder Singh who was carrying the deceased on the pillion seat at a point where there was no crossing on the road must be classed as a rash and negligent act on his part on a broad highway.

Once that is so, it is evident that little rashness or negligence can be attributed on the petitioner. At the highest, even with the natural bias of the prosecution witnesses it has been alleged that he was driving his vehicle at a speed of 30 miles. This Again can at best be marginal assessment and not an accurate one of the speed. On a highway of this nature, speed varying between 20 and 30 miles in the present day cannot necessarily be termed as rash driving per se. At that speed with a heavy vehicle of this kind it would be next to impossible to stop the vehicle dead and to have evaded the cyclist who had suddenly swerved in front of the vehicle. In such a situation, the evasive action taken by me petitioner far from being termed rash or negligent was an inevitable act of reasonable driving. At the very highest in a situation when you have to make a decision on the spur of moment it cannot be termed any worse than an error of judgment. It is more than well-settled that an error of judgment in a dramatic situation of this nature cannot bring one within the ambit of criminal rashness or negligence.

The further independent factors again lend credence primarily to the pica taken in the defence rather than in any way adding to the prosecution case. The significant factor in this context is that Narinder Singh P.W. has categorically admitted in his cross examination that the truck did not dash against him. This factor is more than amply borne out by the medical testimony in the case. P.W. 4 Dr. P.S. Hundal, on medical examination, found two slight abrasions on the left wrist of this witness and equally insignificant abrasions, one on the left hand and two on the right It is obvious that these are the injuries resulting from a fall and not from a head on collision with the truck. Once this part of the case is admitted that the truck did not strike Narinder Singh P.W. who admittedly was driving the cycle, the case takes on an entirely different complexion, It was forthrightly suggested on behalf of the defence that in the consequent collision resulting from his own rashness by suddenly swerving to the right and coming up against the truck, Narinder Singh P.W. lost his nerve and apparently jumped off the cycle leaving Bhag Singh deceased on the pillion seat in the lurch. In such a situation, Bhag Singh seems to have fallen in the way of the rear wheel of the truck whilst Narinder Singh apparently having jumped or been thrown on the other side escaped with mere abrasions without his body apparently having ever come into close contact with the truck or any one of Its parts. The clear admission by Narinder Singh P.W. that he never struck or dashed against the truck seems virtually to belie the prosecution case.

As has been already noticed, it is the common case that the victim of the accident did not strike with any frontal part of the truck. It appears that he had been run over by the rear wheel at the end. In large vehicle like a truck which the petitioner was driving to maneuver out of the way of the cycle being dangerously driven by Narinder Singh the mere striking of the deceased at the rear cannot by itself suggest, any negligence on the part of the petitioner. On the other hand, it speaks volumes for the attempt which appears to have been made by the petitioner to take adequate evasive action in the face of the unpredictable swerving to the right.

As was noticed at the outset, it is the admitted position that the point of impact resulting in the death of the deceased was ON the extreme right of the road. The cycle and the body of the deceased admittedly thereafter lay on the right side. This by itself would show that the deceased and Narinder Singh on their cycle were obviously not on the correct side of the road. The mere fact that the petitioner was compelled to swerve to the right to evade the cyclist does not in any way necessarily evidence his negligence as has been opined by the courts below. It is common knowledge that in certain situations good driving my require swerving to avoid collusion rather than to attempt to stop dead and the more so, with a heavy loaded vehicle like a truck which even with the best of brakes cannot come to a halt at once.

For the aforesaid reasons I am of the view that at the highest the petitioner can be attributed an error of judgment in a difficult driving situation which is far remote from criminal culpability. His conviction and sentence, therefore, cannot be sustained and this revision petition is consequently allowed while setting aside his convictions and sentences on both the counts. Ha is on bail. His bail bonds shall stand cancelled.