Ram Avtar vs State of Rajasthan

R.S. Chauhan, J.—The petitioner has challenged the judgment dated 4.12.2003 passed by the Additional Chief Judicial Magistrate, Sikar whereby the petitioner was convicted for offences under Sections 279 and 304A, IPC. For the former offence he was sentenced to one month of simple imprisonment and imposed with a fine of Rs. 500 and seven days of simple imprisonment in default thereof; for the latter offence, to two years of simple imprisonment and imposed with a fine of Rs. 2,000 and one month''s simple imprisonment in default thereof. The petitioner has also challenged the judgment dated 25.6.2005 whereby the Additional Sessions Judge, No. 1. Sikar has upheld the judgment dated 4.12.2003.

According to the prosecution, on 9.8.1999, one Mohammad Akhtar submitted a written report before Mohammad Isaq, A.S.I. that at 9.00 a.m. when he was taking his cart on National Highway No. 11, along with his four-year-old son, Irfan, at that time a bus coming from Sikar hit his son who was walking on the side of the road. Consequently, his son was crushed under the bus the and died on the spot. He further claimed that the bus is standing at the spot. The driver has revealed his name as Ram Avtar. The said report was sent through a constable and a formal FIR was chalked out against the petitioner for offences under Sections 279 and 304A, IPC.

In order to prove its case the prosecution examined nine witnesses and produced nine documents. The defence did not produce any witness, but did produce a few documents. After going through the oral and documentary evidence, vide judgment dated 25.6.2005, the learned Appellate Court was also pleased to uphold the judgment dated 4.12.2003. Hence the present petition before us.

Mr. Anshuman Saxena, the learned Counsel for the petitioner, has argued that mere death by accident would not bring the case within the purview of Section 304A, IPC. According to him, the bus was plying on a National Highway No. 11 at a speed of seventy to eighty kilometres per hour. Such a speed is not "a high speed" for a National Highway. Therefore, the very essential elements of "rash and negligence" are missing in this case. Secondly, since no identification parade was held, therefore, the prosecution has failed to prove the identity of the accused to be that of the petitioner.

On the other hand, Mr. Arun Sharma, the learned Public Prosecutor has supported the impugned judgments.

Section 279 IPC reads as follows:

Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Thus, the essential ingredient for offence u/s 279, IPC is that the vehicle should be driven in "rash and negligent manner". The concept of rashness and negligence is borrowed from the law of tort into the criminal law. But in criminal law for rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. On the other hand, criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted (Ref. To AIR 1944 Lah. 163). Hence, the prosecution has to prove the existence of these two elements to bring home the offence u/s 279, IPC. However, the mere fact that accused was driving vehicle at high speed may not attract provision of Section 279, IPC. For, speed of a vehicle is not always determinative of the question whether vehicle was driven in a rash and negligent manner. One has to consider the surrounding circumstances of the case to conclude whether the driving was done in rash and negligent manner or not?

In the instant case, the prosecution witnesses have merely said that the bus was coming at a speed of about 70-80 kms. per hour. However, the fact remains that the bus was plying on the National Highway. On a National Highway, 70-80 kms. is not too high a speed. Moreover, the witnesses do not state that the bus was being driven in a "rash and negligent manner". The learned Trial Court has observed that the factum of "rash and negligent manner" is a question of law. But in fact it is squarely a question of fact. The two eyewitnesses, P.W. 2 Mohammad Sattar and P.W. 3 Mohammad Akhtar have merely said that the accident has occurred due "to the fault of the driver". They neither state that the bus was being driven in a rash and negligent manner, nor state in what manner the driver committed "a fault". Their bland statement does not prove the element of "rash and negligence manner" as required by Section 279, IPC.

In the case of Badri Prasad Tiwari Vs. The State, , the Hon''ble Orissa High Court has held that "In order to constitute an offence u/s 279, IPC, it must be established that the accused was driving the vehicle on a public way in a rash and negligent manner to endanger human life or to likely cause hurt or injury to any other person". The Hon''ble High Court further held, "In the case, I find that except a bare statement made by P.W. 2 that the vehicle was being driven in a high speed, no attempt has been made to establish that there was any rash and/or negligent act on the part of the driver". Therefore, the Hon''ble Orissa High Court was pleased to acquit the accused person. Similarly, in the cae of Beda Kanta Phukan v. The State of Assam 1992 Cri. LJ 1197 (Gau.) the Hon''ble Gauhati High Court has held that merely because the accused was driving the vehicle at a high speed may not attract provisions of Section 279.

Thus, in the present case the prosecution has failed to prove the element of "rash and negligent manner" beyond a reasonable doubt. Since rash and negligent manner as required by Section 279, IPC has not been proved beyond a shadow of doubt, the same failure on the part of the prosecution would equally apply to the requirement of Section 304A, IPC. After all, the two sections are inter-related to each other. The learned Trial Court and the learned appellate Court have ignored the absence of these two elements. Hence, they have misapplied the requirements of law. Thus, the judgment dated 4.12.2003 and the judgment dated 25.6.2005 are clearly unsustainable.

In the result, this petition is allowed and the judgment dated 4.12.2003 and judgment dated 25.6.2005 are quashed and set aside. Since the petitioner is serving his sentence, therefore, it is directed that he be released fort with, if not required in any other case.