Munib Sao vs The State of Bihar

M.Y. Eqbal, J.—This revision application is directed against the judgment dated 19.6.1991 passed by the learned 3rd Additional Sessions Judge, Hazaribagh, in Cr. Appeal No. 26 of 1986 whereby the learned Sessions Judge confirmed the judgment and order of conviction and sentence passed against the Petitioner by the Judicial Magistrate, 1st Class, Chatra, in G.R. Case No. 366 of 1983 convicting the Petitioner under Sections 279 and 304(A) of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for a period of two years.

The Petitioner was prosecuted under Sections 279 and 304(A) of the Indian Penal Code for driving the bus bearing registration No. B.R.L. 4188 rashly and negligently and at a very high speed, causing death of the informant''s son on 13.7.1983 at Biglat-Simaria road, Hazaribagh.

The informant lodged a first information report at Tandwa Police Station alleging therein that on the date of occurrence he along with his deceased son and his wife had gone to Biglad temple, which is situated at Tandwa Simaria road for the purpose of boarding a bus. While they were there, the aforesaid bus which was being driven rashly and negligently came at a very high speed without blowing the horn and dashed his son-Rajeshwar Sao, who after sustaining injuries died at the spot. It was alleged that the bus in question was being driven rashly and negligently at the time of occurrence.

The learned Judicial Magistrate tried the case and recorded the evidence of the prosecution witnesses and after hearing the parties came to a finding that the death of the son of the informant was due to rash and negligent driving of the bus by the Petitioner. Accordingly, the learned Magistrate found the Petitioner guilty and convicted him under Sections 279 and 304(A) of the Indian Penal Code and sentenced him in the manner indicated above. The Petitioner aggrieved by this judgment and order of conviction and sentence preferred an appeal before the learned Sessions Judge, Hazaribagh, which was registered as Cr. Appeal No. 26 of 1986. The learned Sessions Judge has confirmed the judgment and order of the learned Judicial Magistrate and held that the eye witnesses to the occurrence categorically stated that the Appellant-Petitioner was driving the bus rashly and negligently at a very high speed and in doing so he dashed the bus against the deceased as a result of which the son of the informant died instantaneously.

Mr. B.K. Dubey, learned Counsel for the Petitioner, assailed the judgment and order passed by both the Courts below as being illegal and contrary to the facts and evidence on record. Learned Counsel submitted that from reading the evidence of the prosecution witnesses it will appear that no case is made out which warrants conviction of the Petitioner under Sections 279 and 304(A) of the Indian Penal Code. Learned Counsel further submitted that non-examination of the Motor Vehicle Inspector and the doctor is fatal to the prosecution case. Learned Counsel has also submitted that driving of a vehicle at a very high speed does not itself constitute an offence, but other factors are necessary to be considered for convicting a person u/s 304(A) of the Indian Penal Code. Learned Counsel submitted that both the Courts below have completely failed to consider the evidence of the witnesses which goes to show that the deceased all of a sudden came on the middle of the road. Learned Counsel relied upon the decision of the Apex Court in Mrs. Shakila Khader and Others Vs. Nausheer Cama and Others, .

On the other hand, Mr. I.N. Gupta, learned A.P.P. appearing for the State, submitted that the conviction of the accused-Petitioner has been passed on concurrent finding of facts by both the Courts below and, therefore, this Court should not interfere in exercise of revisional jurisdiction. Learned Counsel submitted that all the eye witnesses to the occurrence have been examined and proved the guilt of the Petitioner.

Before appreciating the rival contentions of the learned Counsel for the parties and before coming to the conclusion that the conviction of the Petitioner is justified, it would be worth to look into the evidence of the prosecution witnesses.

P.W. 1 is the informant and father of the deceased who has deposed about the occurrence which took place on 13.7.1983. In paragraph-7 he has stated that he along with his son, daughter and wife were standing by the side of the marrum road. He further admitted that the width of the pitch road is about 8-9 feet and thereafter there is marrum road. In paragraph-8 of his evidence he further admitted that his son was dashed on the pitch road. He very categorically stated that he cannot say as to how his son suddenly went on the pitch road. Paragraph-8 of the evidence of this witness is quoted hereinbelow:

MERA LADKA PAKKI SADAK PAR HI GARI SE DABA HAI. HAMLOG GADI NAHIN DEKH RAHE THE. HAMLOG BACCHA PAR DHEYAN RAKHA THA. BACCHA SAMNE ME MERE PAS THA. LADKA SADAK PAR KAISE CHALA GAYA, NAHIN DEKH SAKA.

P.W. 2 claimed himself to be the eye witness to the occurrence, but in his cross examination he has stated that he came on the spot after hearing about the incident. P.W. 3 is the mother of the deceased. She also stated that she along with her husband and children were standing on the side of the road. She further stated that no sooner they reached the road, her son was dashed by the bus. However, she admitted that she along with other members were standing on the Kuttcha road (Marrum road).

From the evidence of these witnesses, particularly the parents, it is admitted that they were standing on the Marrum road and the incident took place on the pitch road. The witnesses further admitted that how the deceased all of a sudden went on the pitch road, they cannot say.

In the light of the evidence disclosed above, I am of the view that the conviction of the Petitioner u/s 304(A) of the Penal Code is not justified. If a person suddenly crosses the road or came on the road without taking note of the approaching bus, the bus driver however slowly he might be driving may not be in a position to save the accident. In such circumstances, I am of the opinion that it will not be possible to hold that the bus driver was negligent. Although it is the duty of the driver to drive his vehicle at a speed which will not imperil the safety of others using the road, but in order to impose criminal liability on the accused, it must be found as a fact that collision was entirely or mainly due to the rash or negligence.

In the case of Shakila Khader (supra) the Apex Court was considering the criteria for holding a person guilty of an offence u/s 304(A) of the Indian Penal Code. The Apex Court held as under:

The facts in the case speak eloquently about what should have happened. The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic and the attempt, as in this case, to overtake the other vehicles resulting in going to the wrong side of the road and being responsible for the accident. Even if the accident took place in the twinkling of an eye it is not difficult for an eye witness to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle travelling on that side of the road....

In the case of Mahadeo Hari Lokre v. State of Maharashtra (1972 Cr. L.J. 49) the Apex Court while considering the similar question held that if a person suddenly crosses the road, the bus driver, however slowly he may be driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the bus driver was negligent.

From perusal of the judgments passed by both the Courts below in the instant case, I find that the criterion adopted by the Courts below in holding the Petitioner guilty is not justifiable. All that the prosecution witnesses have stated that the deceased was hit by the bus which resulted in the death of the deceased. However, the reliable evidence is of the parents (P.Ws. 1 and 3) who were in fact present at the time of the occurrence. They have admitted that they were standing on the marrum road and the accident took on the middle of the pitch road. These witnesses further admitted that how the deceased suddenly went on the pitch road, they could not understand. This aspect of the evidence has not at all been appreciated by both the Court below, and they have not taken note of this evidence.

Having regard to the discussions made hereinabove, I am of the opinion that this revision will have to be allowed.

In the result this application is allowed and the judgment and orders of both the Courts below impugned herein are set aside. The Petitioner who is on bail is discharged from the liability of his bail bonds.