Nirmal Singh vs State of Haryana

P.K. Jain, J.

This criminal revision is directed against the order dated December 1, 1986 passed by the Sessions Judge, Sonepat, whereby conviction of the

petitioner under section 304A, Indian Penal Code, recorded by the Judicial Magistrate I Class, Sonepat, vide his judgment dated September 5,

1986, has been maintained but the sentence imposed by the trial Court has been reduced from one year''s rigorous imprisonment to nine months

and to pay a fine of Rs. 200/, or in default of payment of fine to undergo further rigorous imprisonment for one month.

On August 27, 1981 Constable Jai Singh (PW1) was on traffic duty at the Sports School, Traffic Point, known as 20th Mile, on G.T. Road. At

about 5.30 p.m. one car bearing Number PUY7922, which was being driven by one Ranjit Kumar, resident of Jalandhar City, was coming from

the side of Delhi at the normal speed. All of a sudden Prem Raj, aged about 65/70 years came in front of the car while crossing the road. Ranjit

Kumar applied brakes and the car was stopped but Prem Raj fell down on the side of the road ahead of the car on account of his leg being

entangled in his dhoti. At that time a truck bearing Number PUC8871 being driven by the petitioner came from Panipat side at a fast speed and in

a negligent manner. Prem Raj was run over by the truck and died on the spot. The petitioner sped away his truck but was chased by Constable Jai

Singh in the aforesaid car and was successful in overpowering the truck on the next barrier. He took the truck along with the petitioner to the

Police Station, and made a statement on the basis of which FIR of this case was recorded. The incident is alleged to have been witnessed by one

Mahabir Singh Sarpanch of village Libaspur. After getting the vehicle mechanically inspected, a chargesheet was filed against the petitioner.

The prosecution examined as many as six witnesses; out of whom Constable Jai Singh and Mahabir Singh are the main witnesses. While placing

implicit reliance on the testimony of both these witnesses the learned Judicial Magistrate by his judgment and order dated 5.9.1986 convicted the

petitioner under Section 304A, Indian Penal Code, and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine

of Rs. 200/ or in default of payment of fine to undergo further rigorous imprisonment for one month. The petitioner challenged his conviction and

sentence by way of an appeal but the same was dismissed by the learned Sessions Judge, Sonepat, by the impugned judgment, although sentence

of imprisonment was reduced from one year''s rigorous imprisonment to nine months. Being aggrieved, the petitioner has come in revision.

I have heard the learned counsel for the petitioner and the learned counsel for the State. They have taken me through the trial Court''s record

also.

Learned counsel for the petitioner has argued that Mahabir Singh (PW4) is admittedly a stock witness of the Police and the learned trial Court

as well as the appellate Court has used his testimony contrary to law. It has also been argued by the learned counsel that on the face of the

prosecution case Ranjit Kumar could have been the best witness to narrate the entire incident but he has been withheld by the prosecution for the

reason best known to it. It has been emphasised that the deceased had admittedly come in front of the car being driven by Ranjit Kumar and then

had fallen on the side of the road and in that moment was run over by the truck driven by the petitioner. Thus it is contended that the prosecution

has not been able to prove that there was any culpable rashness or negligence on the part of the petitioner in driving the truck and to run over the

deceased.

On the other hand the learned counsel for the State has argued that the scope of the powers of the High Court in the revision is quite limited; that

there is concurrent finding of fact by the two Courts below; that the petitioner was driving his vehicle in a rash and negligent manner and

accordingly the deceased was run over by his truck. It is pointed out by the learned counsel that if the truck had been coming at a normal speed,

the petitioner could have stopped the truck when the deceased fell down on the side of the road, but the truck was at such a high speed that the

petitioner could not stop the truck and rather sped away. Thus the learned State counsel has supported the conviction and sentence recorded by

the two courts below.

I have given my careful thought to the arguments advanced at the bar. I do agree with the learned State counsel that the powers of the High

Court in revision proceedings are limited in nature and normally the High Court will not enter upon reappraisal of the evidence on which the order

of conviction and sentence is based but the High Court would be justified in exercising its revisional jurisdiction for the correction of a manifest

illegality or the prevention of a gross miscarriage of justice. Where the order of conviction and sentence is based while ignoring the substantive law

which constitutes the offence or on misconception of evidence of matters of importance, the High Court would be fully within its powers even to

enter upon a reappraisal of the evidence to see the illegality or otherwise of the impugned order.

At the outset it may be stated that Mahabir Singh (PW4), Sarpanch of village Libaspur, has admitted in his crossexamination that he does not

remember as to in how many cases of Police Station Rai he had appeared as a prosecution witness, although he must have appeared in 10 to 15

such cases. Thus, Mahabir Singh can unhesitatingly be said to be a stock witness of the police. No reliance can be placed upon the testimony of

such a witness since he obliges the police by his tailored testimony as and when the police so requires. Even otherwise the presence of this witness

at the time and place of occurrence does not appear to be probable at all since he has not stated anywhere as to for what purpose he had gone to

the Sports School at that hour of that day. His testimony has been used by both the Courts below without paying any heed towards this

circumstance. Therefore, the testimony of this witness will have to be discarded and kept out of consideration.

Another serious infirmity in the prosecution case, and consequently an omission on the part of both the Courts below, is nonexamination of

Ranjit Kumar as a prosecution witness at the trial. Admittedly, it was Ranjit Kumar who was coming from the side of Delhi while driving his car

No. PUY8922 and the deceased had come in front of that car while crossing the road and had fallen down on account of his leg having been

entangled in his dhoti. Thus, it was Ranjit Kumar who could be said to be the best witness regarding the incident in question. He has been withheld

by the prosecution without any explanation, whatsoever. There can be a possibility for his nonproduction i.e. the deceased was hit against his car

and then fell down on the side of the road by the impact thereof. No other plausible explanation could be pointed out by the learned State Counsel

at the bar. Both the Courts below have omitted to consider this circumstance which goes a long way against the prosecution case.

According to the testimony of Constable Jai Singh (PW1) he was on duty at the Sports School Traffic Point at the relevant time. He has

admitted in his crossexamination that his attention was drawn by the application of the brakes of the car, that the deceased came in front of the car

and fell down on the side of the road, and in the meantime the truck came and the deceased was run over. This goes to show that there was no

timegap between the application of the brakes of the car, the deceased having come in front of the car and then having fallen down on the side of

the road and having been run over by the truck. When the attention of Constable Jai Singh was attracted towards the car, it was highly improbable

that he could have noticed as to whether the truck was coming at a fast speed or in a rash or negligent manner.

It is wellsettled law that to attract the provisions of Section 304A, Indian Penal Code, death caused on the road must be the direct result of the

rash or negligent act of the accused and that act must be the proximate and efficient (sufficient ?) cause without the intervention of others''

negligence. In other words, it must be the causa causans, it is not enough that it must have been the causa sine qua non. The test is whether the

accident could have been avoided by the petitioner if he had exercised that care and diligence which ordinarily cautions persons using the road in

similar circumstances would have been done. Where pedestrian crosses a road, and does not take care to see whether any vehicle was coming

along the road, so that he dashes against the vehicle, the driver of the vehicle cannot be held to be guilty of rash or negligent act within the ambit of

Section 304A of the Indian Penal Code. In the present case, admittedly the deceased was crossing the road when the car bearing Number

PUY7922, being driven by one Ranjit Kumar, resident of Jalandhar City, came there and on account of his leg having been entangled in his dhoti,

the deceased fell down ahead of the car. During that moment the truck in question had come and the deceased was run over. The question of the

petitioner taking any precaution to avoid the said accident did not arise at all. The fact that the petitioner did not stop his truck at that point and

sped away, does not show that he is guilty of an offence under Section 304A, Indian Penal Code. The contention of the learned counsel for the

petitioner that the petitioner did not stop and sped away on account of fear that he might have been implicated in this case, is plausible and holds

true also. Thus, both the Courts below have fallen in error in coming to the conclusion that any rashness or negligence on the part of the petitioner

in running over the deceased has been established on the record. In other words, the necessary ingredients of the offence with which the petitioner

was charged have not been established at all.

For the foregoing reasons, I am constrained to accept this revision. The conviction and sentence of the petitioner recorded by both the Courts

below are hereby set aside and he is acquitted of the charge under Section 304A, Indian Penal Code. The petitioner is already on bail. His bond is

cancelled and the surety stands discharged.