Sumer Singh vs State Of Uttarakhand

Sharad Kumar Sharma, J

The revisionist is a convict for the commission of offences under Sections 279 and 304A of IPC, as a consequence thereto, on culmination of the trial as held in Criminal Case Number 220 of 2009, State v. Sumer Singh, the learned Judicial Magistrate, District Uttarkashi, vide its judgement dated 25th November 2009 has sentenced the revisionist to undergo a simple imprisonment for period of three months for the commission of offence under Section 279 and a fine of Rs. 500/- has been imposed and for the offence under Section 304A he has been directed to undergo one year of simple imprisonment and fine of Rs. 1000/- has been imposed and in an event of default to deposit the penalty, the revisionist has been directed to further undergo simple imprisonment of 2 months. The said judgement of conviction dated 25th November 2009, as rendered by the Judicial Magistrate, Uttarkashi stood affirmed on a challenge being given in a Criminal Appeal being Criminal Appeal Number 49 of 2009, Sumer Singh v. State of Uttarakhand by the judgement dated 24th August 2012 as rendered by the Sessions Judge, Uttarkashi.

As per the prosecution story and as considered by Courts below in accordance with the findings which has been recorded in the judgement of conviction rendered by the Judicial Magistrate, it was a case that an FIR was registered for the aforesaid offences at Thana Patwari, Chauki Jugna, District Uttarkashi in relation to an incident which is said to have chanced on 30th October 2008 at about 4 p.m., and which has resulted into the death of Shoorvir Chandra, who is said to be of 27 years of age at the time of the incident and it is also the case of the prosecution that at the time when the accident had occurred on 30th October 2008, he was working under a Contractor in one of the Scheme of Government of India i.e. "प्रधानमंत्री सड़क योजना" and at that relevant point of time, he was working at Syalana Kuriyada Khurmola Nawagaon, Motor Marg.

The case of the prosecution is that while the project was being undertaken by the contractor in which the deceased was working, the present revisionist is said to be the driver of the offending JCB, which was being utilised for the construction of the said road and it is the case of respondent that it was on account of rash and negligent driving of the JCB by the revisionist he has hit the deceased from the back portion of the JCB due to which the deceased is said to have suffered injuries ultimately resulting into his death and hence the trial was conducted as against the revisionist for commission of offence under Section 279 and 304A of IPC.

What is relevant to be pointed out at this stage is that with regards to the incident in question and even as per the finding which has been recorded before the Court below there was only one eyewitness of the incident who had supported the incident, that is PW2 Mr. Amichand, who is said to be the eyewitness of the accident and he has contended that it was on account of rash and negligent driving of the driver of JCB Sumer Singh i.e. the revisionist herein, the accident has occurred which has resulted into the death of the deceased Shoorvir Chand.

It had further recorded a finding that after the Shoorvir Chand (now deceased), when he suffered from the injuries, while he was being taken to hospital but on the way he met with the sad demise. If the statement of PW2 is scrutinized, who is said to have seen the accident from about a distance of 10 to 15 metres, he too has not specifically submitted in his statement that at the time when the accident has occurred, the vehicle in question was in fact being driven by the revisionist in a rash and negligent manner or at a higher speed which might have caused the accident which has resulted into the death of the deceased.

PW2 in his statement has submitted that the only fact which stands established is that the manner in which the revisionist who was the driver of the JCB when he was driving the vehicle in question he is said to be driving the same in rash and negligent manner though there is no other material on record to show that how the prosecution has been able to succeed to establish beyond doubt that the vehicle in question was in fact being driven in a rash and negligent manner and too whether it was being driven by the revisionist.

In order to substantiate the prosecution story, the prosecution has produced PW4 i.e. Dr. B.S. Bisht, who has conducted the post-mortem on the deceased and he has observed that the deceased has suffered from two injuries and as per the post-mortem report, which was placed on record as exhibit ka(2), the prosecution contended that the gravity of injuries which has been reported by the medical officer has contributed to the death of the deceased person. However, if we see the reasoning which has been assigned by the Judicial Magistrate except that of recording the finding in relation to the statements recorded by the prosecution witnesses there is no other reasoning or such independent consideration or rationale application of mind in order to support the conviction of the revisionist for the commission of offence under Section 279 and 304A IPC.

This Court is of the opinion that after having scrutinized the judgement of the Judicial Magistrate, it cannot be said to be an adjudication of a lis in relation to convicting a person for the commission of offence under Section 279 and 304A of IPC as it doesn't reflect and apt consideration of evidence and statement recorded before it. Apart from that, this Court is of the opinion that in order to convict a person for the commission of offence under Section 279 to be read with Section 304A of IPC, the basic element required to be satisfied under Section 279 of IPC, is that (1) there has had to be a driving of vehicle (2) that the driving has to be rash and negligent driving (3) The driving has to be on a public road.

In the case at hand, in view of the statement of PW2, he has stated that the vehicle was not being driven at a speed, secondly, it is not the case of the prosecution that the vehicle in question was being driven on a public road, which would mean it was a notified road to be used by public at large and was being use commuting, which could attract the provisions contained under Section 279 of IPC, only element or the slightest element of possibility of conviction, which is shown to have been proved in with regards to rashness in the driving. That story of prosecution of rashness becomes doubtful too because in the statement of PW2 that the vehicle was not being driven in a speed which might have contributed to the accident, but in the post-mortem report, it could be said that the cause of death was the injuries which he has suffered on account of the accident which has occurred on the said date. Consequently, as far as the occurrence of accident and that to on account of the rash and negligent driving of the vehicle, could remotedly be established for the purpose of convicting the present revisionist under Section 279 of IPC.

On this argument of the revisionist's counsel and observations made by this Court, the argument of the learned AGA is that for the purposes of convicting a person under Section 304A, the element of rash and negligence itself is sufficient to bring the offence under the culpable homicide to be convicted under Section 304A of IPC. Though, this argument is apparently made maybe a correct perspective to look into the controversy, but for the purpose of conviction under Section 304A yet again there has had to be an establishment of rashness and negligence of a magnitude coupled of knowledge or possibility, in the commission of offence. Looking to the surrounding circumstances and the evidence which was appreciated by the Judicial Magistrate the very concept of rashness and negligence was not establishment beyond doubt or to be of a magnitude attributed to knowledge to cause death or fatal injuries, because the said finding of rashness was based on exclusive testimony of the PW2, who himself has seen the incident from about a distance of 10 to 15 metres and who himself had recorded a statement that the vehicle was not being driven at a high speed. Furthermore, this Court is of the view in order to establish rash and negligent driving, there has had to be a speed of the offending vehicle, alleged to be with the person who is convicted for the commission of offence that he had the knowledge of probable cause of injury or a consequential death of person because of an act of rashness and negligence. The said element too was required to be established by the prosecution before the Court below. But after having considered the judgements as rendered by both the Courts below and looking to the post-mortem report, which was on records of Court below as exhibit Ka(2), this Court is of the view that though the conviction has been rendered for the commission of the said offence, it would serve end of justice, if the sentence as imposed by both the Courts below is modified to the extent that the sentence of conviction would be treated to be mitigated on the ground of the sentence already served by the revisionist. However, the penalty as imposed by the Court below for the commission of the said offence, this Court is of the view that the same deserves to be enhanced and the same is being accordingly enhanced to Rs. 2000/- each.

In view of the aforesaid reasons, the judgement of conviction, rendered by the Courts below is modified to the said extent and the revisionist who has convicted with the offence since having undergone the sentence is directed to deposit enhanced penalty, prior to discharge of his surety(ies), and hence the surety(ies), which has been extended for the purposes of availing the bail, that would stand discharge thereafter only after deposit of enhanced penalty.

Hence, while affirming the conviction, the sentence is modified accordingly.