The Union of India (UOI) vs Bakhtwar Singh and Mast Ram

T.U. Mehta, C. J.

1 This appeal arises out of the judgment of acquittal recorded by the learned Sessions Judge, Mahasu at Simla in Criminal Appeals Nos. M/10 of 1969 and M/10 of 1970. Both these appeal arose out of the trial held against both the Respondents by the Court of the Magistrate, First Class, Rohru in Criminal Case No. 103/1 of 1968.

Shortly stated, the facts of the case are that on 21st May, 1968 a passenger bus bearing No. HIM 4381 belonging to Himachal Government Transport was plying on public road from Rohru to Summerkot and it met, with an accident at about 6.30 p.m. at a place near Bansa village ahead of village Machoti. The Respondent Bakhtwar Singh was the driver of the bus. The case of the prosecution is that the Respondent Mast Ram boarded the bus at a particular place and thereafter asked Bakhtwar Singh the driver to hand over the bus to him for the purpose of driving. This Respondent Mast Ram is a cleaner of a truck bearing No. HIM 4686, and it appears that he had also a licence to drive heavy vehicles. However, he was not entrusted with any duty to drive the bus in question. It is said that after Mast Rain took the steering of the bus he began to drive very rashly and with a good deal of speed. Some of the passengers sitting in the bus thereupon requested him to drive slowly. But the allegation of the prosecution is that Mast Ram did not pay any heed to this request of the passengers, with the result that at a place known as Machoti there was a curve at which the bus slipped from the road and fell in a nearby khud. This resulted in serious accident causing death of two of the passengers named Dhani Ram and Natha Singh. Several other persons received grievous and simple hurts. The injured persons were thereafter taken to hospital where they were given medical treatment. The bus was mechanically examined by prosecution witness No. 9 Prithvi Singh who was at that time working as Foreman, Himachal Workshop at Dhalli. According to this Foreman, the machinery of the bus was in perfect order but when he examined it, its brake-pipe was found broken. The witness has further deposed that the vehicle was found in fourth gear, but the connection of the steering was in order. The curve at which the accident took place is found to be a wide curve. Witness Prithvi Singh (P.W. 9) has further deposed that the accident could not have taken place due to any mechanical defect in the bus. He has, therefore, opined that the accident took place on account of the rash driving of the bus.

The prosecution examined several witnesses in support of its case that the Respondent Bakhtwar Singh who was the driver of the bus had handed over the bus to Respondent Mast Ram for driving, and that after Mast Ram took the steering in his hand he began to drive rashly with a good deal of speed and did not pay any heed to the passengers who requested him to drive slowly.

The defence taken by Bakhtwar Singh is that he had not handed over the bus to Mast Ram and that the accident had taken place while he was driving the bus. Mast Ram has stated that he had not taken the steering in his hands and that he was not responsible for the accident. The defence has examined witnesses to show that at the time of the accident it was Bakhtwar Singh driver who was driving the bus.

Both the Respondents have been charged with the offences contemplated by Section 304-A and Section 338 I.P.C. The learned Magistrate, who has tried the case, has come to the conclusion that the prosecution has satisfactorily proved that the Respondent Mast Ram was driving the bus at the time of the accident and was therefore liable to be convicted and punished for the offences u/s 304-A and Section 338 I.P.C He has further held that Respondent Bakhtwar Singh is also liable to be convicted for the said two offences read with Section 109 I.P.C. as, according to him, Bakhtwar Singh had abetted these offences being committed by the Respondent Mast Ram. The learned Magistrate sentenced both the accused to suffer simple imprisonment for 3 months for each offence and further ordered that these sentences should run consecutively.

On appeal, the learned Sessions Judge has found that the evidence recorded in the case was not clear as to whether the brake-pipe was broken as a result of the accident or before the accident occurred, and therefore it cannot be said that the accident occurred on account of any rash or negligent act of the driver. He has further found that it was likely that the bus was driven by the Respondent Bakhtwar, but since rashness or negligence on the part of the driver was not proved both the accused persons should be acquitted. It is against this order of acquittal that the State has preferred this appeal.

The first question which arises to be considered is whether the prosecution has, satisfactorily proved that the vehicle in question was driven rashly or negligently. Now, on this point we find that the prosecution has produced very satisfactory evidence through the depositions of P.W. 2 Janku, P.W. 4 Surtu, P.W. 5 Narain Dutt, P.W. 7 Kalam Singh and P.W. 12 Hari Ram that the bus was being driven with a good deal of speed, and the driver did not pay any heed even though they and other passengers had requested him to slow down the speed. It is found from the judgment recorded by the learned Sessions Judge that he has not disbelieved these witnesses. The learned Sessions Judge has, however, recorded the finding as regards rashness and negligence in the belief that there was no evidence to show that the brake-nipe was broken as a result of the accident. We have, therefore, minutely gone through the evidence of two witnesses who are very much material on this point. These two witnesses are P.W. 9 Prithvi Singh, the Foreman of Himachal Workshop, and D.W. 4 Budhi Ram who was working as a Mechanic at Himachal Transport at Dhalli at the relevant time. We find from the deposition of P.W. 9 Prithvi Singh, the Foreman, that the brake-pipe would riot have been broken except as a result of the accident itself. The witness has elaborately given reasons for showing this. According to him, the manner in which the brake-pipe was found broken clearly suggested that it was broken as a result of the accident. It is found that the oil which the brake-pipe carried was not spilled on the road. Therefore, it follows that if the pipe had broken while the vehicle was in motion on the road, the oil which it contained must have spilled on the road. More-over, in the hilly drive which is full of curves, the driver would be often required to check the speed of the vehicle by putting his foot on the brake. Therefore, if the brake-pipe was broken before the accident and while the vehicle was in motion, the driver could have very easily known that the brakes of the vehicle were not working efficiently, in which case he would at once be required to stop the vehicle with a view to prevent the accident. If he has not taken that care, that act itself would amount to negligence. Evidence given by D.W. 4 Budhi Ram is not in any manner helpful to the defence on this point because he has admitted in his deposition that he could nottell whether the brake-pipe was broken in the accident or prior to that.

However, the recorded evidence in the case clearly shows that there was nothing wrong in the mechanism of the vehicle just before the accident took place. The prosecution witnesses who say that the driver was driving the vehicle at a greater speed than necessary are supported by the fact that the vehicle was found, just after the accident, in the fourth-gear. Foreman Prithvi Singh, P.W. 9, says that fourth gear suggests the fast speed ofthe vehicle and it is common knowledge that if the vehicle was driven very slowly in the curve it could not have been efficiently driven in the fourth gear. It is an admitted position that at the place where the accident took place there was a curve. In a hilly drive with curves even if the road is in the level the driver is expected to take sufficient caution to curb the speed of his vehicle especially when he is carrying many passengers in a heavy vehicle. A person driving a vehicle of this type is under a duty to control his vehicle for the simple reason that in his hands is the safety of many innocent passengers. If he does not take this care, he would be prima facie guilty of negligence in driving the vehicle. Under the circumstances, we find that the learned Sessions Judge has not applied his mind to this important aspect of the case in coming to the conclusion that the prosecution has failed to prove that the vehicle was driven rashly and negligently.

There is dispute about the question as to who out of the two Respondents, namely, Bakhtwar Singh and Mast Ram, was driving the bus at the time of the accident. It is found from the judgment recorded by the learned Sessions Judge that he has merely summarised the evidence on this point and has recorded the finding in the following words:

"It may be that he (Bakhtwar Singh) was driving the vehicle.

This finding is on the face of it very hesitant in its nature and, therefore, in order to convince ourselves about the correct position we have gone through ,the whole evidence produced by the prosecution as well as the defence on this point. We find that the prosecution witnesses Nos. 2, 4, 5, 7 and 12 are very clear in giving evidence that after Mast Ram boarded the bus he requested the driver Bakhtwar to allow him to drive the vehicle and Bakhtwar did so. Most of these witnesses were sitting quite neaf the driyer. Prosecution witness No. 2 Janku was sitting on the engine of the bus which was quite adjacent to the seat of the driver. He says in his deposition that from Machoti accused , Mast Ram started driving the bus rashly. He then asked him to drive slowly, but he did not pay any heed. P.W. 4 Tutu, P.W. 5 Narain Dutt, P.W. 7 Kamal Singh and P.W. 12 Hari Ram depose in the same manner. It was contended that these witnesses were not knowing the accused Mast Ram previously, and, therefore, they were likely to commit a mistake in identity of the driver. It was also pointed out that in such cases the evidence of identity supplied by these witnesses cannot be relied upon unless an identification parade was arranged by the Police.

After perusing the evidence given by these witnesses we find that two important facts emerge, namely, (1) that all these witnesses had ample opportunity to take notice of the fact that the driver Bakhtwar handed over the bus for driving to Mast Ram who was a mere passenger and, therefore they had sufficient opportunity to know the identity of the person who took over the driving from driver Bakhtwar. There was sufficient light at the time of the incident which occurred at 6.30 p.m. in the month of May, and (2) another fact which emerges is that none of these winesses had any special reason to involve Mast Ram wrongly and to allow Bakhtwar to go scot free even though he was responsible for the accident. It is in view of these two important facts that the question of identity is to be determined. It is not in every case necessary that the identification should be arranged at the time of Police investigation, because in the final analysis it is the evidence of identity which is adduced in Court which matters. Evidence recorded in the case shows that either Bakhtwar was driving the bus or Respondent Mast Ram was driving it. Therefore, the pertinent question which would arise to be considered is whether any of these witnesses has got any special reason to favour Bakhtwar and to involve Mast Ram wrongly. We find that all these witnesses are totally impartial persons whose presence in the ill-fated bus is not and cannot be disputed.

It is, of course, true that the Respondent Bakhtwar has owned the responsibility of the accident and it is equally true that D.W. 1 Salanjitand D.W. 2 Budhi Ram have supported the Respondent Bakhtwar by stating that at the time of the accident Bakhtwar was driving the bus. One of the prosecution witnesses, P.W. 10 Bansi Lal who was the Conductor of the bus has also supported the defence on this point. The learned Sessions Judge has referred to this defence evidence and the evidence of P.W. 10 Bansi Lal, but is not found to have recorded reasons for discarding on this point''the clear and categorical evidence given by the above referred prosecution witnesses. Even his finding on this point is quite hesitant. However, after taking the whole of the evidence recorded in the case we are of the opinion that the evidence of the defence witnesses and the evidence given by Bansi Lal, P.W. 10, on this point is not acceptable. On the contrary, the evidence given by the above referred prosecution witnesses is found to be quite straight forward and untainted by any other considerations. We, therefore, accept that evidence of the prosecution and agree with the trial Magistrate that it was Mast Ram who was driving the bus at the time of the accident.

In view of the above findings the conviction of Mast Ram for the offences u/s 304-A and Section 338 I.P.C. must be held as correct, and the acquittal order recorded by the learned Sessions Judge must be set aside.

So far as the Respondent Bakhtwar Singh is concerned, his learned Advocate was not present when the hearing of this appeal took place. We, therefore, requested Shri Vaid, who represented Mast Ram, to argue his case. According to Shri Vaidj Bakhtwar Singh cannot be held responsible for any offence and, therefore, his acquittal should be confirmed. We find that Bakhtwar Singh cannot be said to have committed offence u/s 304-A or Section 338 I.P.C, because he was not immediately responsible either for causing death or for causing injuries to the passengers who were occupying the bus. He also cannot be said to have directly abetted these offences, because at the time of handing over the driving of the bus to Mast Ram he could not have visualised that such an accident would take place.

We, however, find that his action of handing over the driving of the bus which was entrusted to his care was so negligent that he can be safely convicted for the offence contemplated by Section 336 I.P.C. According to this Section whoever does any act so rashly or negligently as to endanger human life or personal safety of others can be punished with imprisonment of either description for a term which may extend to three months. The question, therefore, is whether his act of handing over the driving of the bus to an unauthorised person was so negligent as to endanger the personal safety of the passengers sitting in the bus. Shri Vaid contended that this action of Bakhtwar Singh might be sufficient to bold him liable, for some departmental action but not for his conviction u/s 336 I.P.C. We find ourselves unable to accept this proposition, because the question whether a particular conduct or act amounts to negligence or not depends directly upon the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient in view of the special circumstances of each case. So far as the facts and circumstances of this care are concerned, it is evident that the Transport Department had entrusted the vehicle to the care of the Respondent Bakhtwar Singh. It was, therefore, his duty to drive the vehicle with the special skill which he possessed as a driver. Therefore, the action of Bakhtwar Singh in neglecting to drive this vehicle himself and entrusting its driving to the care of an unauthorised person was evidently an action which lacked the necessary care and circumspection which he was supposed to take as regards the personal safety of the passenger occupying the bus. In our opinion, therefore, even this Respondent is found to have committed the offence punishable u/s 336 I.P.C.

In the result, therefore, we hold that the Respondent Bakhtwar Singh should be convicted and punished u/s 336 I.P.C.,''and after hearing Shri Vaid on the question of sentence we order that for this offence he should be sentenced to simple imprisonment of three months.

So far as Respondent Mast Ram is concerned, the order of conviction and sentence passed on him by the learned trial Magistrate is restored.

Shri Vaid prayed for taking a lenient view of the matter on the question of punishment and requested that in view of the fact- that this appeal has reached hearing after about eight years both the Respondents should be enlarged on probation of good conduct. It is unfortunate that this appeal should have taken about eight years lo reach this hearing. However, looking to the facts of the case we would not be justified in taking a lenient view as proposed by Shri Vaid. It is obvious that both the Respondents have treated the bus in question as a mere toy and have shown callous disregard for the passengers and their families. They should not have played with the lives of these innocent persons in this manner. Driving of a heavy vehicle on a hilly public road should not be allowed to be treated as a mere entertainment for the drivers. It i s a very responsible job and demands extraordinary care, the neglect of which is more criminal than a violent act caused by a momentary impulse. The Respondents have been leniently treated by the trying Magistrate. There is, therefore, no scope for further leniency.

Both the Respondents are, therefore, ordered to surrender and serve out the sentences.

Our attention was drawn to the fact that .the Appellant while filing the appeal has not filed any certified copy of the judgment of the trial Court and of the grounds of appeal preferred before the Sessions Court. We find that no office objection has been raised in this connection. It was, therefore, contended that the appeal itself was not properly constituted'', because the filing of these documents was mandatory. We find that this is a mere irregularity and now that the whole paper book and all the ''relevant record is before us, this irregularity should not deter us from disposing of this appeal.