Sirat Sood @APPELLANT@Hash State of Himachal Pradesh

Sandeep Sharma, J.

1.PW-3, Ratku Ram (complainant), in his statement recoded under S. 154 CrPC, alleged that on 26.2.2010, he and his wife, Bhimi Devi (PW-8)

alongwith other labourers were engaged by contractor Roshan Lal, for laying lintel of Maharani Flour Mills at Jia. Complainant Ratku Ram (PW-3)

and Bhimi Devi (PW-8) alongwith other labourers were carrying sand stacked near the wall, when at about 4.50 pm, the wall suddenly collapsed, as a

result of which, bricks of wall fell on left foot of complainant and shoulder of Bhimi Devi. Subsequently, it transpired that one jeep bearing registration

No. HP-63A-0838 being driven by the petitioner-accused (hereinafter, ‘accused’), hit the wall, as a result of which, wall collapsed and bricks

fell on complainant Ratku Ram and his wife Bhimi Devi. Allegedly, the accused while reversing the vehicle, hit the wall. Complainant and his wife

were rushed by the accused to the private hospital at Shamshi, for their treatment. Complainant alleged that accident took place due to rash and

negligent driving on the part of accused. On the aforesaid statement having been made by the complainant, a formal FIR No. 65/10 dated 27.2.2010

Ext. PW- 9/A was registered against the accused. After completion of investigation, police presented Challan in the competent Court of law i.e.

learned Chief Judicial Magistrate, Kullu, District Kullu, Himachal Pradesh, who being satisfied that prima facie case exists against the accused, put

notice of accusation to the accused, for having committed offences punishable under Ss. 279, 337 and 338 IPC, to which he pleaded not guilty and

claimed trial.

Subsequently, learned trial Court, on the basis of evidence led on record by prosecution, held accused guilty of having committed offences punishable

under Ss. 279, 337 and 338 IPC and convicted and sentenced accused to undergo simple imprisonment for a period of three months and to pay fine of

Rs500/- and in default of payment of fine, to further undergo simple imprisonment for a period of fifteen months for the commission of offence

punishable under S. 279 IPC; to undergo simple imprisonment for a period of three months and to pay a fine of Rs500/- and in default of payment of

fine, to further undergo simple imprisonment for a period of fifteen days for the commission of offence punishable under S. 337 IPC and; to undergo

simple imprisonment for a period of six months and to pay fine of Rs1,000/- and in default of payment of fine to further undergo simple imprisonment

for one month for the commission of offence punishable under S. 338 IPC.

Being aggrieved and dissatisfied with the impugned judgment of conviction passed by the learned trial Court, the accused preferred an appeal under S.

374 CrPC, before the learned Sessions Judge, Kullu, Himachal Pradesh, who vide judgment dated 25.5.2018, while partly allowing the appeal having

been filed by the accused, set aside the conviction recorded by the learned trial Court under S. 279 IPC but maintained the conviction recorded against

accused under Ss. 337 and 338 IPC. In the aforesaid background, accused has approached this court in the instant proceedings, seeking therein his

acquittal after setting aside judgment of conviction recorded by learned first appellate Court under Ss. 337 and 338 IPC.

Mr. Abhishek Raj, learned counsel representing the accused vehemently argued that impugned judgment of conviction recoded by learned first

appellate Court under Ss. 337 and 338 IPC, is not sustainable in law as the same is not based upon correct appreciation of evidence adduced on

record by the prosecution. Mr. Abhishek strenuously argued that there is no cogent and convincing evidence led on record by prosecution to prove

rash and negligent act, if any, done by the accused, while reversing the jeep in question. Mr. Abhishek further contended that none of the prosecution

witnesses stated anything specific with regard to rash and negligent driving of accused and as such, learned Court below has wrongly arrived at a

conclusion that prosecution was able to prove beyond reasonable doubt that vehicle in question was being driven rashly and negligently by the accused

at the time of alleged accident. While placing reliance upon a judgment rendered by this court in Cr. Appeal No. 84 of 2018 titled State of H.P. versus

Surinder, decided on 1.5.2018, Mr. Abhishek contended that there can not be any presumption of rashness or negligence, rather onus is always upon

the prosecution to prove beyond reasonable doubt that the vehicle in question was being driven rashly and negligently. While inviting attention of this

court to the statements of prosecution witnesses namely Ratku Ram (PW-3), Mehar Chand (PW-6) and Bhimi Devi (PW-8), Mr. Abhishek made

serious attempt to persuade this court to agree with his contention that none of the prosecution witnesses stated that complainant and his wife, Bhimi

Devi (PW-8) suffered injuries on account of rash and negligent act, if any, of the accused. He further contended that aforesaid material prosecution

witnesses rather turned hostile and nowhere supported the prosecution case, but despite that learned Courts below merely on the presumptions,

proceeded to hold accused guilty of having committed offences punishable under Ss. 337 and 338 IPC.

Mr. Dinesh Thakur, learned Additional Advocate General, while refuting aforesaid contentions having been made by the learned counsel

representing the accused, contended that impugned judgment of conviction recoded by learned first appellate Court is based upon correct appreciation

of evidence adduced on record by the prosecution and there is no illegality or infirmity in the same as such, there is no scope of interference especially

when it clearly emerges from the bare reading of impugned judgment of conviction that the learned Court below has dealt with each and every aspect

of the matter meticulously. He further contended that it stands duly proved on record that accused while reversing the jeep, miserably failed to take

precaution so as to prevent danger, if any, to human life, as such, he rightly came to be convicted for having committed offences punishable under Ss.

337 and 338 IPC. Mr. Thakur further contended that if statements of prosecution witnesses, PW-3, PW-6 and PW-8 are read in conjunction, same

clearly suggest that all these prosecution witnesses in one voice stated that the vehicle in question was being driven rashly and negligently by the

accused at the relevant time, as a consequence of which, PW-3(complainant) and PW-8, Bhimi Devi, wife of complainant, suffered simple as well as

grievous injuries.

I have heard the learned counsel for the parties and gone through the record carefully.

Having carefully perused the material available on record, this court finds that there is no dispute, if any, so far factum of accident allegedly

occurred on 26.2.2010 is concerned, rather, accused in his statement recorded under S. 313 CrPC himself admitted the factum of accident. Learned

Court below, though had held accused guilty of having committed offence punishable under S. 279 IPC, but said finding was subsequently reversed by

learned first appellate Court in the appeal having been preferred by the accused on the ground that prosecution was not able to prove that at the time

of accident, offending vehicle was being driven on a public path/way. Since there is no challenge, if any, to the aforesaid finding returned by the

learned first appellate Court by the respondent-State, there is no occasion for this court to go into correctness of findings returned by the learned first

appellate Court qua commission of offence, if any, by accused under S. 279 IPC. Question, which needs to be adjudicated in the present proceedings

is that whether there was sufficient evidence on record led by prosecution suggestive of the fact that the vehicle in question was being driven rashly

and negligently by the accused at the time of alleged incident. No doubt, careful perusal of medical evidence led on record, proves beyond reasonable

doubt that PW-3 (complainant Ratku Ram) and PW-8 Bhimi Devi, wife of complainant, suffered simple as well as grievous injuries, after being hit by

bricks fallen from the collapsed wall but having carefully perused the statements of material prosecution witnesses, this court is persuaded to agree

with the contention of Mr. Abhishek Raj, learned counsel representing the accused that there is no cogent and convincing evidence adduced on record

by the prosecution to prove rash and negligent act, if any, on the part of accused, while reversing the vehicle.

Though, PW-3 and PW-8, who happened to be victims of alleged accident, have stated that they suffered injuries on their persons i.e. foot of

complainant and shoulder of PW-8 Bhimi Devi on account of collapse of the wall but they have not stated anything specific that the wall collapsed on

account of negligent act, if any, of accused, rather, PW-3 (complainant) in his cross-examination has admitted that the vehicle being driven by accused

struck against outer side of wall. This witness, who was victim, though turned hostile, but even in his cross-examination, prosecution was not able to

extract anything contrary to what he stated in his examination-in-chief. Similarly, another victim, PW-8 Bhimi Devi feigned ignorance with regard to

mode and manner of accident. She simply stated that she suffered injury after being hit by bricks fallen from the collapsed wall. She categorically

stated in her cross-examination that she does not know that due to whose fault, wall collapsed. PW-6, Mehar Chand, so called independent witness,

associated by prosecution also not supported case of prosecution. Though this witness deposed that the wall collapsed after being hit by jeep but he

nowhere stated that at that time vehicle/jeep was being driven rashly and negligently by the accused. Though this witness stated that he had seen the

jeep coming towards wall, but he nowhere stated that he had signalled the driver to stop the vehicle.

Conjoint reading of the statements having been made by PW-3, PW-6 and PW-8 nowhere suggests that prosecution was able to prove beyond

reasonable doubt that the vehicle in question was being driven rashly and negligently by the accused on the date of alleged accident. All the aforesaid

witnesses especially PW-6 in a very casual manner stated that accident took place due to rash and negligent driving of the accused but in their cross-

examination, they have feigned ignorance with regard to mode and manner of accident.

Having perused the versions put forth by PW-3, PW-6 and PW-8, this court has no hesitation to conclude that there are material contradictions and

inconsistencies in the statements made by the prosecution witnesses as such no much reliance could be placed upon the same by the learned Courts

below, while ascertaining guilt, if any, of accused.

In the instant case, this Court was unable to lay its hand to specific evidence, if any, led on record by the prosecution suggestive of the fact that

vehicle at that relevant time was being driven rashly and negligently. In this regard, reliance is placed on judgment rendered by the Hon’ble Apex

Court in Braham Dass v.State of Himachal Pradesh, (2009) 3 SCC (Cri) 406, which reads as under:-

“6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not

been brought on record as to how the accused- appellant was negligent in any way. On the contrary what has been stated is that one person had gone

to the roof top and driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger

was on the roof top of the bus. Learned counsel for the respondent on the other hand submitted that PW1 had stated that the conductor had told the

driver that one passenger was still on the roof of the bus and the driver started the bus. 8. Section 279 deals with rash driving or riding on a public

way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner

which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC

is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either

Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto,

there was no evidence led to show that any negligence was involved.â€​

The Hon’ble Apex Court in case titled State of Karnataka v. Satish, 1998 (8) SCC 493, has also observed as under:-

“1. Truck No. MYE-3236 being driven by the respondent turned turtle while crossing a ""nalla"" on 25-11-1982 at about 8.30 a.m. The accident

resulted in the death of 15 persons and receipt of injuries by about 18 persons, who were travelling in the fully loaded truck. The respondent was

charge-sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the

accident took place. The respondent was convicted for offences under Sections 279, 337, 338 and 304A IPC and sentenced to various terms of

imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. While the conviction

and sentence imposed upon the respondent for the offence under Section 279 IPC was set aside, the appellate court confirmed the conviction and

sentenced the respondent for offences under Sections 304A, 337 and 338 IPC. On a criminal revision petition being filed by the respondent before the

High Court of Karnataka, the conviction and sentence of the respondent for all the offences were set aside and the respondent was acquitted. This

appeal by special leave is directed against the said judgment of acquittal passed by the High Court of Karnataka. 2. We have examined the record and

heard learned counsel for the parties. 3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338

and 304A IPC after recording a finding that the respondent was driving the truck at a ""high speed"". No specific finding has been recorded either by

the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the

respondent was driving the truck at a ""high speed"", both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty.

Merely because the truck was being driven at a ""high speed"" does not bespeak of either ""negligence"" or ""rashness"" by itself. None of the witnesses

examined by the prosecution could give any indication, even approximately, as to what they meant by ""high speed"". ""High speed"" is a relative term. It

was for the prosecution to bring on record material to establish as to what it meant by ""high speed"" in the facts and circumstances of the case. In a

criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and

there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some

statutory exceptions.

There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of ""rashness"" or

negligence"" could be drawn by invoking the maxim ""res ipsa loquitur"". There is evidence to show that immediately before the truck turned turtle, there

was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who

inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best

known to the prosecution. This is a serious infirmity and lacuna in the prosecution case. 5. There being no evidence on the record to establish

negligence"" or ""rashness"" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the

respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible

view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His

bail bonds shall stand discharged. Appeal dismissed.â€​

Leaving everything aside, this court is unable to lay its hands on any specific statement made by these prosecution witnesses, with regard to rash

and negligent driving, if any, by the accused at the time of accident. It was incumbent upon the prosecution to prove the guilt, if any, of the accused

under Ss. 337 and 338 IPC to the effect that the vehicle in question was being driven in rash and negligent manner, so as to endanger human life or

likely to cause injury to other person. Similarly, Section 337 of IPC provides that to prove commission of offence, it is required to be proved that hurt is

caused to any person due to an act done rashly and negligently as to endanger human life or personal safety of others. But, interestingly, in the case in

hand, both these conditions as taken note above, are missing. It has been repeatedly held by Hon'ble Apex Court as well as this court that there can

not be any presumption of rashness or negligence rather onus is always upon prosecution to prove beyond reasonable doubt that the vehicle in question

was being driven rashly and negligently. In the absence of any material on record, no presumption of rashness or negligence can be drawn by invoking

the maxim res ipsa loquitur.

The Hon’ble Apex Court in case titled Ravi Kapur versus State of Rajasthan (2012) 9 SCC 285, has held as under:

“15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes â€

one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any

other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in

cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res

ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of

driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence

he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of ‘culpable rashness’ and ‘culpable

negligence’ into consideration in cases of road accidents. ‘Culpable rashness’ is acting with the consciousness that mischievous and illegal

consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their

happening.

The imputability arises from acting despite consciousness (luxuria). ‘Culpable negligence’ is acting without the consciousness that the illegal and

mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he

would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident

is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the

facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is

attributable to some person’s negligent conduct. [Ref. Justice Rajesh Tandon’s ‘An Exhaustive Commentary on Motor Vehicles Act,

1988’ (First Edition, 2010]. 20. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the

attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the

civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved.

It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can

be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The

factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply

the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone’s

negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the

circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical

conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as :

• The event would not have occurred but for someone’s negligence.

• The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event.

• Accused was negligent and owed a duty of care towards the victim.â€​

Consequently, in view of detailed discussion made herein above as well as law taken note herein above, this court has no hesitation to conclude

that both the learned Courts below have fallen into grave error while holding accused guilty of having committed offences punishable under Ss. 337

and 338 IPC, especially when there is no evidence worth the name available on record suggestive of the fact that vehicle in question was being driven

rashly and negligently on the date of alleged accident. Resultantly, present petition is allowed. Judgment dated 25.5.2018 passed by the learned

Sessions Judge, Kullu, Himachal Pradesh in Cr. Appeal No. 03 of 2018 is quashed and set aside. Accused is acquitted of the offences punishable

under Ss. 337 and 338 IPC. Bail bonds, if any, furnished by him are discharged. Fine amount, if any, paid by him, is ordered to be refunded to him.

Pending applications, if any, are disposed of. Interim directions, if any, are vacated.