Swaran Singh vs State of Punjab

M.L. Singhal, J.

This is a revision against the order of Additional Sessions Judge, Jalandhar dated 14.7.1987 whereby he dismissed the appeal of Swaran Singh, (revision petitioner herein) respecting his conviction but reduced the sentence of imprisonment to one year and a fine of Rs. 500/ or in default to further undergo R.I. for two months U/s 304A IPC.

The prosecution case in brief is that on 24.2.1985 Channu Ram was travelling in tempo No. PBT 9085. Hukam Chand, Jeet Ram, Darshan Singh, Jaspal, Khiali Ram, Munshi Ram, Bhag Ram, Shiv Lal and others were travelling in that tempo. They boarded that tempo at village Ranipur for pilgrimage to Dera Radha Soami at Beas. It was being driven by Swaran Singh. When tempo reached a point at a distance of 100 yards away from the Smadh of Baba Bohar Shah in the area of village Sarai Khas, truck No. PJP 6246 was found standing on its side due to some defect. It was about 7.30 a.m. at that time. Two other trucks were also standing ahead in front of that tempo. Swaran Singh accused was driving that tempo at a fast speed rashly and negligently without blowing any horn, in his anxiety to pass those stationary trucks. In the meantime, Bus No. PJG 2513 of Punjab Roadways Jalandhar DepotII was coming from Kartarpur side being driven by one Makhan Singh. Makhan Singh was driving the bus at normal speed. He was blowing its horn also. When that bus reached near those trucks, accused Swaran Singh i.e. driver of that tempo tried to hurriedly pass those stationary trucks. He could not control the tempo. He gave a twist to the tempo in a manner that it went off the road towards the right side and dashed against left side of the bus and fell in the Khantans and as a result of the impact Roshan Lal, Satnam Singh, Sarban Ram, Sita Ram and Kartar Chand suffered injuries and died. Postmortem examination on the dead bodies was performed by Dr. Pawan Gupta, Medical Specialist, Civil Hospital, Jalandhar on 25.2.1985. The matter was reported to the police by Channu Ram, PW vide statement Exhibit PA on 24.2.1985 on the basis of which FIR No. 32 dated 24.2.1985 was registered at PS Kartarpur U/s 279/307 IPC. After investigation accused was challanged u/s 279/304A IPC. The Addl. Chief Judicial Magistrate, Jalandhar charged the accused vide order dated 8.8.85 u/s 279/304A IPC. Accused pleaded not guilty to the charge and claimed trial.

With a view to bring home to the accused the charge levelled against him, the prosecution examined Channu Ram, PW1, Hukam Chand PW2, Dr. Pawan Gupta, PW3, Vimal Parkash, PW4, Nathi Ram PW5, Makhan Singh, Driver No. 127 PW6, Kashmir Singh PW7, ASI Surjit Singh, PW8 and Khiali Ram PW9.

Accused when examined under section 313 Cr.P.C. denied the imputations appearing in prosecution evidence against him and stated that it is a false case and that he was driving the tempo cautiously and at a very slow speed. He found one stationary truck on the roadin which there was some defect. Ahead of his tempo was going another truck. When he was trying to cross that point and go ahead one bus came from the other side. It was a nonstop bus being driven at a very fast speed. That bus struck against the hind side of the tempo and as a result of the impact some passengers of the tempo suffered injuries. In his defence he examined Rattan Singh DW1 and Amar Singh DW2.

At the conclusion of the trial, Addl. Chief Judicial Magistrate, Jalandhar found the charge proved against he accused. He accordingly convicted him thereunder and sentenced him to undergo R.I. for 1 1/2 years and to pay a fine of Rs. 500/ and in default to further undergo R.I. for two months u/s 304A IPC. He sentenced him to undergo R.I. for six months u/s 279 IPC. He ordered the sentences to run concurrently.

His appeal to the Court of Sessions did not meet with any substantial success. The Addl. Sessions Judge reduced the sentence to one year R.I. He maintained the sentence of fine, vide order dated 14.7.1987. Still not satisfied, Swaran Singh has knocked the door of this Court through this revision.

I have heard the learned counsel for the petitioner and Deputy Advocate General, Punjab and have gone through the record.

Channu Ram PW1, Hukam Chand PW2 and Khiali Ram PW9 have given an eyewitness account of the occurrence. They were all travelling by that tempo. Hukam Chand PW2, Khiali Ram PW9 did not support the prosecution''s case. Hukam Chand PW2 stated that he, Roshan Lal, Sarban Ram, Kartar Chand, Sita Ram, Channu Ram, Satnam, besides, some ladies were travelling in the tempo which was being driven by Swaran Singh, accused. They were about 20 persons travelling in that tempo. They were on pilgrimage to Dera Radha Soami, Beas. When tempo was just two miles behind Kartarpur, two trucks were going ahead of tempo. One truck was parked on the left side of the road at the place of occurrence. When accused tried to cross the truck a bus came in opposite direction, He could not say who was at fault i.e. whether the bus driver was at fault or tempo driver was at fault. Accident took a toll of five human lives. He was declared hostile on the request of the Public Prosecutor for the State. The Public Prosecutor crossexamined him. In his crossexamination by the defence he stated that in order to save their lives the accused turned the tempo towards khatans. Khiali Ram PW9 has stated that on 24.2.85 at about 6.30/6.45 a.m. they boarded tempo being driven by Swaran Singh on pilgrimage to Dera Radha Soami Beas. He was wrapping blanket around him and was sitting on the back side. We cannot say where the accident took place. He became unconscious due to accident. He was declared hostile and crossexamined by the Public Prosecutor for the State. His crossexamination by the State did not improve the matters for the prosecution. Channu Ram PW1 stated that he, Jeet Ram, Darshan Singh, Hukam Chand, Khiali Ram, Munshi Ram, Bhag Ram, Jaspal, Shiv Lal and others travelled by that tempo. In all they were 20 passengers travelling by that tempo being driven by the accused. When tempo reached near village Kahlwan at about 7.30 a.m. they noticed a stationary truck on the left side of the road and one truck was going ahead of their tempo. When they crossed the truck, bus came from the opposite side. Driver of the tempo took the tempo towards right side of the road. Tempo hit the bus. As a result, there were five casualties. Accident took place due to the negligence of the accused.

Learned counsel for the petitioner stated that it could not be a case of negligence so far as petitioner is concerned. It could be a case of wrong judgment on his part, as stated by Hukam Chand, PW2. In order to save their lives, the accused turned the tempo towards khatans. One stationary truck was on the road. There was another truck going ahead of the tempo. When they crossed the truck, a bus came from the opposite side. He was in a dilemma when he was confronted with nonstop bus coming from opposite side at a fast speed; he was sandwiched between the truck and the bus and in his anxiety to save their lives he turned the tempo towards khatans. Accused was going on the G.T. Road. He found one stationary truck ahead of him. It was his duty to have taken every precaution while he was crossing that stationary truck. It was he who was required to see whether any vehicle was coming in the opposite direction. Site plan Exhibit PW8/K shows that bus had a clear passage through the road. At point ''B'' which is the edge of the road, there was stationary truck. There was thus adequate passage for the tempo to pass. If tempo did not have adequate passage, to pass the tempo, tempo driver could wait for the passage of the bus. It is a case of extreme negligence and rashness on the part of the accused who did not care to see that he would not be able to steer clear through the bus coming in the opposite direction and the stationary truck. He ought to have allowed the bus to pass. After the bus had passed, he ought to have driven the tempo There was no occasion for him to turn the tempo to the extreme side of the road. It was 20 feet wide road. Stationary truck was on the extreme side of the road. Rattan Singh DW had stated that he was travelling by that tempo. Roshan Lal etc. were also travelling by that tempo. None of them had paid any tempo fare to the tempo driver. When the tempo reached near Village Sarai Khas there was a stationary truck on the road facing Amritsar side. There was another truck ahead of them. Tempo driver was driving the tempo cautiously and at slow speed. When the tempo tried to cross the truck a nonstop bus was comeing from the opposite side at a speed of 70/80 kilometres per hour and right hind side of the bus struck against the tempo. Driver of the tempo was not at fault. To this very effect, Amarjit Singh, DW2 has stated. These DWs did not appear during investigation nor it was suggested to Channu Ram, Hukam Chand and Khiali Ram that they were also travelling by that tempo. As such they cannot be believed. Fact, therefore remains that Swaran Singh accused should have observed due care and caution. He ought to have known that he was carrying about 20 persons in his tempo. Before trying to pass the stationary truck, he should have seen whether he would be able to steer clear the stationary truck as well as the incoming bus. This duty on the tempo driver became heavier when he was sandwiched between the stationary truck and the incoming bus.

In B.P. Ram and another v. State of Madhya Pradesh 1991(1) Recent Criminal Reports 654 by M.P. High Court, it was observed in paras 5 and 6 of the judgment that :

"Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. 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, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of accused person to have adopted. Culpable rashness is acting with the consciousness that the 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 precaution to prevent their happening. The imutability arises from acting despite the consciousness. 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 the civic duty of circumspection. A rash act is primarily an overhasty act and is opposed to a deliberate act; even if it is partly deliberate, it is done without due thought and caution. Illegal omission is "act" under this section and may constitute an offence if it is negligent. Death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another''s negligence. It must be the causa causana; it is not enough that it may have been the cause sine qua non.

The "rash or negligent act" referred to in the section means the act which is the immediate cause of death and not any act or omission, which can at most be said to be a remote cause of death. To render a person liable for neglect of duty, there must be such a degree of culpability as to amount to gross negligence on his part. It is not every little trip of mistake that will make a man so liable. Where the accused, driving a motorcar at night, entered a road which being under repair was closed to traffic and ran over and killed two coolies who were sleeping on the road with their bodies completely covered up except for their faces, it was held that, under the circumstances, the accused was not guilty of causing death by a rash and negligent act as it could not be said that he should have looked out for persons making such an abnormal use of the road."

In my opinion, accused was justifiably found by the Courts below to have acted rashly and negligently when he tried to steer clear the tempo through the stationary truck and the incoming bus. Faced with this position the learned counsel for the petitioner submitted that the petitioner should be released on probation of good conduct as it is a case of wrong judgment on his part and it is not a case of rashness and negligence on his part and assuming that, he was rash and negligent, rashness and negligence was not of the magnitude and extent which should have dissuaded the Court from releasing him on probation of good conduct. It is not a case where he can be released on probation of good conduct. He should have avoided playing with human lives. In support of his submission that the petitioner should be released on probation of good conduct, learned counsel for the petitioner drew my attention to Sher Singh v. State of U.T., 1985(1) Recent Criminal Reports 410 , where accused was allowed the benefit of Probation of Offenders Act, 1958 because he had stopped the bus and taken the injured to the hospital and he was a first offender. At the cost of repetition, it is not a case where the Probation of Offenders Act, 1958 should come to the rescue of the accused. It however is a case where some leniency should be shown to the petitioner in the matter of sentence because the degree of rashness and negligence is not that culpable and grave. So, the sentence imposed upon the petitioner is reduced to nine months'' R.I. Sentence of fine shall, however, remain. This Criminal revision stands partly allowed.

Revision partly allowed.