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Judgment
A.L. Vaidya, J.—The aforesaid Criminal Revision and the Criminal Appeal are being disposed of by a common judgment inasmuch as these proceedings have arisen out of the same occurence.
Petitioner Vijay Chand in Criminal Revision No. 50 of 1991 was prosecuted under Sections 279, 337, 338, 304-A IPC and the Respondent Darshan Singh in Criminal Appeal No. 91 of 1992 was prosecuted for the same occurrence for the aforesaid offences read with Section 109 IPC.
Darshan Singh accused at the relevant time was serving as a driver in the Himachal Road Transport Corporation (hereinafter to be called as HRTC), and was deputed on 18th September, 1984 as a driver in bus No. HPG-3661 which was going from Una to Shimla. One Ramesh Chand was the conductor of this bus. Accused Vijay Chand was also travelling in this bus. It has been the prosecution case that it was a night bus and upto Darlaghat the bus was driven by Darshan Singh, whereafter this Darshan Singh accused allowed Vijay Chand to drive the said bus. It has been the further case put up against the accused persons that Vijay Chand drove the vehicle in a rash and negligent manner and at about 4.45 AM on 19.9.94 when the bus reached near Ghannahati, accused Vijay Chand could not control the bus and as a result of which, the bus went out of the road resulting into a very serious accident. Many passengers lost their lives at the spot.
The information of the accident was given to the police by constable Chaman Lal and accordingly, Investigating Officer Laxmi Narain left to (sic for?) the spot and sent a rukka Ext. PW. 25/B to the police station, on the basis of which F.I.R. Ext. PW. 20/C was recorded. Mechanical examination of the bus was also conducted and the report of the Mechanic in this behalf was Ext. PW. l/A. During investigation, post mortem of the deceased persons were conducted. The reports on record were Ext. P. 61 to Ext. P. 71. The injured persons were also examined and the medico-legal certificates in this behalf brought on record were Ext. P. l to Ext. P. 32. The skiagrams of the injured who suffered fracture injuries were also brought on record.
The trial Magistrate after conducting the trial, convicted both the accused persons. Vijay Chand was sentenced to undergo rigorous imprisonment for six months u/s 279 IPC, for six months rigorous imprisonment u/s 337 IPC, for eight months rigorous imprisonment u/s 338 IPC, and for two years rigorous imprisonment u/s 304-A IPC. He was also sentenced to pay a fine of Rs. 1000/- for the said offence. In default of payment of fine, the accused Vijay Chand was further ordered to undergo rigorous imprisonment for two months. Similarly, accused Darshan Singh was also sentenced to undergo rigorous imprisonment for six months u/s 279/109 IPC, for six months rigorous imprisonment u/s 337/109 IPC, for eight months rigorous imprisonment u/s 338/109 IPC and two years rigorous imprisonment u/s 304-A/109 IPC, and he was also ordered to pay a fine of Rs. 1000/- for the said offence. In default of the payment of fine, accused was further ordered to undergo rigorous imprisonment for two months. These sentences have been ordered to run concurrently.
Both Vijay Chand and Darshan Singh assailed the aforesaid conviction and sentence passed against them separately by preferring independent appeal before the Sessions Judge, Shimla who after hearing the parties accepted the appeal of Darshan Singh, but dis-allowed the appeal preferred by Vijay Chand and maintained the findings of conviction and sentence passed by the trial Magistrate.
The State of Himachal Pradesh has assailed the order of acquittal passed by the First Appellate Court against Sh. Darshan Singh on various grounds by preferring this appeal No. 91 of 1992, whereas, the other accused Vijay Chand has assailed his conviction and sentence confirmed by the first Appellate Court by preferring the Revision Petition No. 50 of 1991 on various pleas.
I have heard the learned Counsel for the parties and have very minutely scrutinised the entire records.
Learned Counsel for Vijay Chand has submitted that the order of conviction and sentence passed against the Petitioner has to be quashed, as there was no legally competent evidence to bring home the guilt against Vijay Chand and in this behalf, the submissions putforth can summarily be described as under:
(i) that there is no legal evidence that Vijay Chand was driving the vehicle at the time of occurrence;
(ii) even if, it is held that Vijay Chand was driving the vehicle at the time of occurrence, there is no legally competent evidence examined during the trial, which could connect the rash and negligent driving on the part of Vijay Chand to be the cause of alleged accident.
In so far as the appeal against the acquittal was concerned, learned Deputy Advocate General has very seriously and forcefully submitted that lower Appellate Court''s findings acquitting the original driver of the bus Darshan Singh have been based not only illegal and untenable appreciation of evidence, but moreso, to be perverse appreciation of the evidence and law in this behalf. Additionally, learned Dy. Advocate General argued that conviction and sentence against Vijay Chand have been rightly and validly passed, which requires no interference by this Court.
In order to appreciate the submissions putforth on behalf of the learned Counsel for the parties, at first instance, the facts brought on record during the trial have to be appreciated and ascertained in a legal manner.
Accused Darshan Singh when examined u/s 313 of the Code of Criminal Procedure stated that it was correct that he drove the bus upto Darlaghat and thereafter without his consent Vijay Chand Katoch drove the vehicle. He also stated that Vijay Chand was having a driving licence and was a good driver. However, regarding the rash and negligent driving of accused Vijay Chand, this Darshan Singh stated that the vehicle was being driven in a normal speed and with full care. He further added that the accident took place because of mechanical defect.
The other accused while being examined u/s 313 Code of Criminal Procedure stated that it was correct that at that particular time he was posted as conductor on checking duty. He has very specifically denied that Darshan Singh handed over the driving of the vehicle to him. He has also denied that he was driving the vehicle at the time of accident. The accused further stated that conductor Ramesh Kumar and other employees of the H.R.T.C. in order to save themselves have made statements against them.
The bus was mechanically examined just after the occurrence. Ext. PW. l/A is the mechanical examination report, which has been proved by PW. l Sh. Vidya Sagar. In this report, this PW. l Vidya Sagar made the following observations:
i. The steering system of the said bus was in the working order before the accident;
ii. Foot brake system was also found in the working order;
iii. Bus was in the second gear according to the road because gear lever was found disconnected from the gear box;
iv. Ignition system was quite well at the time of inspection. There was no mechanical defect in the bus.
The report also contained the damage caused to the body of the bus. This witness on mechanical inspection reported that according to his inspection he found the cause of accident due to the negligence of the bus driver. This bus was inspected by this witness on 19.9.84 near Ghanahatti which was lying about 400 feet down in the Khad from the road. The number of the bus was HPG-3661
Apart from the observations made regarding the cause of the accident in his report, this witness when examined on oath also stated that accident took place due to the carelessness of the driver. During cross examination, this witness stated that he conducted the inspection at about 7.15 in the morning. He also stated that according to him as per the gradient of the road it was normally to drive the vehicle in second gear.
It may be referred here that in so far as this witness is concerned, he has not at all been cross-examined on the aspect that some mechanical defect was the cause of the accident.
It has been the prosecution case that there were so many passengers and other employees of the H.R.T.C. in the bus. There is no doubt, some of the witnesses have tried to resile from their earlier statement made to the police, especially, with respect to the fact that the vehicle at the time of accident was being driven by Vijay Chand Katoch, but on the other hand, there are some witnesses who have given the ocular account of the occurrence, which requires proper and legal appreciation alongwith the version given by the other witnesses who have tried to resile from their earlier statements.
PW. 8 is one Hoshiar Singh. He stated on oath that on 19th September, 1984 he was travelling in bus No. HPG-3661 from Una to Shimla and according to him when the bus reached near Ghannahatti, it fell down and he also received injuries. He further stated that in the morning he came to know that ten to 12 persons had died. According to this witness Darshan Singh driver was driving the vehicle from Una, but when this bus reached Darlaghat where another H.R.T.C. bus was parking which had developed some defects, this bus was coming from Chintpurni and going to Sarahan. This witness also stated that there they took tea and thereafter the conductor blew whistle and all the passengers sat in the bus. He also disclosed that there was no light in the bus and they 5-7 persons were talking amongst themselves and thereafter on asking of one passenger, the driver switched on the light and then it was noticed that Vijay Chand accused, who was identified by the witness in the Court, was driving the vehicle. This witness was also Conductor. He stated that when the bus reached near Ghanahatti, it rolled down below the hill. The witness has been very specific in deposing that because of speed, it went out of the road. He has also been very particular in deposing that accused could not negotiate the turn and because of that the bus fell down. According to him, he could not give the exact speed of the bus at that time. This witness is serving in the Himachal Road Transport Corporation for the last 18 years. He also disclosed that at the time of accident he was on checking duty with the flying squad, but on that day he was on leave. He could not tell what was the name of the place where the driver switched on the inner light of the bus, but he was certain in deposing that after switching on the light the accident took place within some minutes. He also stated that his statement was recorded by the police and he did not state before the police that on asking of some person the driver switched on the light. This witness stated that he did not stop Vijay Chand from driving the vehicle, as according to him he saw Vijay Chand driving the vehicle only when the lights were switched on. He had denied the suggestion that Darshan Singh was driving the vehicle.
PW. 18 is Sh. Ramesh Chand, the conductor of the ill-fated bus. He stated on oath that he was the conductor of the said bus and Darshan Singh accused was the driver. He stated that the bus started on 18.9.84 from Una at about 7.30 in the evening and it was going to Shimla. According to him at Bhararighat the passengers of Chintpurni-Sarahan bus were also taken in their bus as the same had developed some defects. This witness also stated that the bus stopped at Darlaghat where the passengers took tea and thereafter the bus started and when he was issuing tickets and while doing so he reached at the front of the bus and noticed accused Vijay Chand Katoch driving the bus. He also stated that when the bus reached at Ghanahatti, and there the bus was on its right side and after breaking the parapets fell down. The witness also suffered injuries. He also stated that there was some place on the left side of the road. During cross-examination, the witness stated that when the bus started from Darlaghat, within 2-3 minutes thereafter he came to know that accused Vijay Chand Katoch was driving the vehicle. He also added that there were about 22-23 staff members sitting in the bus, which included the members of flying-squad also. The witness also stated that he restrained Vijay Chand not to drive the vehicle.
PW. 4 is one Subhash Chand, who stated that the meeting of Conductor Union was fixed with the Transport Minister, and , therefore, he was going to Shimla. He stated that he alongwith Prem boarded Chintpurni-Sarahan bus and when this bus reached Bhararighat it developed some mechanical defect and thereafter bus No. HPG-3661 was coming from Una and going to Shimla which was boarded by him and other passengers also. He also added that at that time the bus was being driven by Darshan Singh accused. He also disclosed that when the bus reached near Galoh, he got it stopped because he wanted to go out to make himself easy and after doing so, they boarded the bus and thereafter he fell asleep and when he got up he found himself in the Snodown hospital. This witness stated that he did not know what happened and his arm was also fractured. This witness, during investigation had supported the prosecution case and he was allowed to be cross-examined on behalf of the prosecution. During his cross-examination, he denied the suggestion that Vijay Chand accused was driving the vehicle at the time of occurrence. However, he admitted that Vijay Chand was serving in Una Depot of H.R.T.C. and he was also travelling in the same bus. He denied the suggestion that he made the statement to the police that at Danoghat when the bus started, at that time Vijay Chand was driving the vehicle. The witness was also confronted with his statement made to the police, wherein it had been so recorded. He also denied the suggestion that he stated before the police that Vijay Chand was driving the vehicle negligently and without care on the wrong side and because of that near Ghanahatti the accident took place. He also denied the suggestion that he made the statement to the police that Darshan Singh committed negligence while giving the vehicle to Vijay Chand driver. The witness has been confronted with his earlier statement made to the police with portion VC to wherein it had been so recorded. He also denied the suggestion that at Darlaghat Sh. Vijay Chand sat on the driver seat and started driving the vehicle. The other portions of the statement given by this witness before the police were also put to him from which he had resiled and stated that he did not make any such type of statement.
PW. 5 is another witness Ajit Singh, who at the time of accident was also one of the passenger of the bus. He stated that he could not tell, who was the driver driving the vehicle as he was sitting on the back side of the bus. According to him, the accident took place near Ghanahatti and he also received injuries as at that time he was sleeping. This witness was also allowed to be cross-examined by the prosecution, as he resiled from his earlier statement made to the police. The witness has been confronted with his earlier statement made to the police, wherein he had deposed that at Darlaghat when the bus started the driver who was earlier driving the bus was not the driver but another person was driving the bus.
PW. 5 Ajit Singh, P.W. 6 Shiv Kumar, PW. 9 Joginder Singh, PW. 10 Mohan Lal, PW. ll Hira Lal, PW. 12 Krishan Singh, PW. 13 Ram Chand, PW. 14 Parveen Thakur, PW. 15 Naresh Kumar and PW. 17 Smt. Anjana Thakur are the witnesses who were the passengers of the bus, who received various injuries on their person on account of the accident. These witnesses have allowed to be cross-examined, as they have resiled from the statements given by them during investigation. They have been confronted with their earlier statements. These witnesses in a way have tried to support the accident, but have not connected the accused with the alleged occurrence, which they have so done during investigation.
PW. 7 (Kesav) stated that at the time of accident the driver was driving the vehicle with fast speed and near Ghannahatti the bus broke two parapets and thereafter fell down. According to this witness, at that time the vehicle was in fast speed. This witness also suffered hip fracture in the said accident. This witness stated that he did not remember that he made a statement to the police that earlier Darshan Singh was driving the vehicle and after Danoghat, Vijay Chand was driving the vehicle. This witness was also confronted with his earlier statement made in this behalf during investigation, where he had stated that earlier Darshan Singh was driving the vehicle and after Danoghat Vijay Chand was driving the vehicle.
PW. 10 Mohan Lal also stated that accused Vijay Chand was also in the bus. The witness stated that he knew Vijay Chand because he was working in H.R.T.C. PW. 12 Krishan Singh had also stated that accident took place near Ghanahatti and according to him it might have taken place due to the negligence of the driver.
PW. 16 Smt. Gambho Devi also added that the bus was being driven in quite fast speed. However, she added that she could not tell what was the cause of the accident. PW. 20 is one Kuljesh Kumar, who was also allowed to be cross-examined on behalf of the prosecution. He was also one of the occupant.
PW. 30 is one Sh. Jarnail Singh, who stated on oath that on 19th September, 1984. He was coming from Shahtalai in Una-Shimla night bus. He boarded the bus at 10.30 PM at night and according to him, when they reached near Ghanahatti at about 5 AM in the morning, the bus met with an accident. This witness has in very clear terms deposed that from Shahtalai he saw the driver driving the bus, but after Darlaghat it was being driven by the conductor who had issued them the tickets. He further stated that he could not identify the person who was driving the vehicle at the time of accident. He also stated that the name of that conductor might be Vijay Chand, but he could not identify him. This witness further disclosed that this driver and conductor met him outside the Court room and they asked me (him) whether I (he) was also sitting in that bus and the witness replied in the affirmative. This witness was also confronted with his previous statement made to the police wherein he had connected Vijay Chand with the alleged occurrence, to be the driver responsible because of his negligent driving, accident took place.
Darshan Singh accused examined some evidence in defence. DW-1" is Sh. Yashpal. He stated that he knew Darshan Singh and Vijay Chand accused as he was serving since 1977 in H.R.T.C. Una as electrician. He stated that Darshan Singh was working as driver while Vijay Chand was conductor-cum-checker. He stated that on the date of occurrence he was going to Shimla to attend some meeting and he boarded the ill-fated bus at Una at 7.30 PM (evening). He was also accompanied by 8 to 9 other persons of the Union. He also stated that at Bhararighat, the passengers of Chintpurni-Sarahan bus, which developed some mechanical defects, were also taken and the ill-fated bus was full of passengers. He further stated that some of the passenger were standing. According to him, the bus stopped at Darlaghat, where the passengers took tea. According to this witness, Darshan Singh took tea and went out to bring .the water and in the ''meantime, conductor Vijay Chand started the vehicle and drove slowly, and in the meantime Darshan Singh came running into the bus and asked Vijay Chand to stop the bus. But according to this witness, Vijay Chand disclosed that he has received an interview card for the post of driver and he also showed his licence. The witness also disclosed that the conductor came from behind and gave long whistle, but Vijay Chand did not stop the vehicle. This witness further stated that for about 20 to 25 Kms. the bus was driven normally and thereafter all of a sudden a sound was heard, as if something had broken and thereafter the bus went down. This witness also appeared in the departmental inquiry, wherein his statement was recorded, the copy of which was brought on record as DW. l/A. The witness was confronted with the statement made during the inquiry. The witness stated that he has disclosed before the Inquiry Officer that when Vijay Chand was driving the vehicle, Darshan Singh came running and asked Vijay Chand not to drive the vehicle. He also stated that he could not tell that he had stated before the Inquiry Officer that before the accident some sound was heard as if something had broken. Such a statement had not been recorded in Ext. DW. l/A. He also stated that he did not state before the Inquiry Officer that the driver did not stop Vijay Chand from driving the vehicle and he raised no objection in that behalf. The witness was confronted with his statement at portion ''B'' to ''B'' in Ext. DW. l/A, wherein it has been so recorded. This witness also stated that he could not tell that what sound was heard just prior to the accident. He could not tell that the sound was heard when the vehicle struck against the parapets. The witness stated that he did not remember that he made the statement before the police that at first instance bus struck against the parapets and that the accident took place because of negligent and rash driving of Vijay Chand. The witness was confronted with his statement . Ext. DW. l/A Portion A'' to "A1, wherein it had been so recorded.
DW. 2 is Darshan Singh one of the accused. He has tried to support his case as stated by him u/s 313 Code of Criminal Procedure.
Ext. PW. 25/D is the site-plan, wherein, it has been pointed out that the ill-fated bus struck against the parapets fixed on the right side of the road and thereafter fell down about 400 feet below the road. The site plan clearly depicted that at the time of accident the bus was on the wrong side of the road i.e. on the right side.
From the aforesaid evidence, examined during the trial, the following facts stood legally established beyond all reasonable doubt:
Darshan Singh accused was the driver of the ill-fated bus;
Vijay Chand accused was also travelling in the same bus;
At the time of accident, it was Vijay Chand accused who was driving the bus; 1604
At the time of accident, the bus was on its right side i.e. on the wrong side;
The bus fell down after breaking the parapets below 400 feet from the road;
The speed of the bus was above normal at the time of accident;
There was no mechanical defect in the bus as the same was inspected just after the accident;
Mechanical defect has been excluded to be the cause of the accident,-
Vijay Chand accused was posted as Conductor-cum-Checker at that time;
Some passengers died and various others received minor as well as grievous injuries in that accident.
It has been very forcefully contended on behalf of the Petitioner Vijay Chand that the Courts below have drawn certain presumption with respect to the factum of rash and negligent driving on behalf of the Petitioner, which procedure according to the learned Counsel, will not be legally competent to connect Vijay Chand with the alleged occurrence inasmuch as the prosecution has to establish the alleged rash and negligent act giving rise to the alleged accident through a iegally competent evidence. In this behalf, some case law has been cited Tukaram Sitaram Gore Vs. State, has been relied upon wherein it has been held that in order to hold accused liable u/s 304-A there must be evidence not only of rashness or negligence acceptable to Court but also that the rash or negligent act of accused was the proximate cause of death and that there must be a direct nexus between the death of a person and rash or negligent act of accused. It has also been held that there can be no presumption of negligence from the mere fact that a man is knocked down and killed by a motorist.
In so far as the ratio of the aforesaid cited case is concerned, there cannot be any dispute to that aspect. In so far as the present case is concerned, the plea of Darshan Singh that accused Vijay Chand without his consent drove the vehicle does not appeal to reasoning at all, especially when this Vijay Chand is stated to have driven the vehicle for a few kilometers when the accident took place. The other plea of Darshan Singh that the accident was due to some mechanical defect also cannot be accepted in view of the evidence already discussed above. Thus on the basis of the evidence, scrutinised above, clearly established that Vijay Chand was driving the vehicle at the time of occurrence and that too with the consent of Darshan Singh accused. The accident being the result of rash and negligent driving of accused Vijay Chand is writ large on the basis of the proved facts on record.
As pointed out earlier, Vijay Chand was the conductor of the bus, which fact has not only been stated by the witnesses examined during the trial, but also through documents. Ext. PW. 19/B is the certificate issued by the Regional Manager, H.R.T.C., Una, whereby it has been certified that Vijay Chand Katoch was appointed as Conductor w.e.f. 15.7.77 vide Divisinal Manager, H.R.T.C., Dharamshala office order dated 15.7.77, and at present he was working in H.R.T.C. Una w.e.f. 14.10.81, that means at the time of occurrence this Vijay Chand was working as Conductor in H.R.T.C., Una, while Darshan Singh vide Ext.PW.19/A was working as driver w.e.f. 1.1.1982. Even in his statement made u/s 313 Code of Criminal Procedure, he stated that it was correct that he was appointed as Conductor and the certificate to that effect was Ext.PW.19/B. A person who was a conductor at the relevant time was driving the vehicle without having been appointed as a driver- The vehicle at the time of accident was being driven on wrong side. There was no mechanical defect in the vehicle. The speed of the vehicle was also not normal. This accused Vijay Chand, according to one of the witness, failed to negotiate the curve. All these factors do not go in favour of this Vijay Chand accused, but on the other hand, were clear and specific indication to the effect that it was due to the rash and negligent driving of none-else than of Vijay Chand accused which was the cause of the alleged accident, which resulted in so many deaths and so many passengers having suffered grievous as well as other injuries.
The Revision Petition of Vijay Chand as such on the basis of the aforesaid discussion, cannot be favourably considered and his conviction alongwith sentences passed by the two Courts below are maintained.
In so far as Darshan Singh accused is concerned, the evidence examined during the trial and as discussed above clearly established that this Vijay Chand started driving the vehicle with the consent of Darshan Singh who was also one of the occupant of the bus when the accident took place. The learned Sessions Judge has accepted the appeal preferred by Darshan Singh on the sole ground that as Vijay Chand Katoch was a driver posted in H.R.T.C., therefore, Darshan Singh did not commit any criminal offence by handing over the steering of the bus to Vijay Chand and any lapse on the part of Darshan Singh could not give rise to any criminal action. But on the other hand, as has been submitted before this Court, any lapse on his part could be dealt with departmentally, especially when the rash and negligent driving was attributed to Vijay Chand who was posted as a driver himself. I think, the learned Sessions Judge has been swayed with certain facts which have not been proved on record. There is nothing on record except the statement of co-accused Darshan Singh that Vijay Chand was a good driver and was having a driving licence. There is nothing on record to suggest even remotely that he had been driving the vehicle earlier efficiently. On the other hand, the evidence on record was that accused Vijay Chand was conductor appointed to be so and was working as such at the time of accident also any lapse on his part could be dealt with and negligent driving was attributed to Vijay Chand who was posted as a driver himself. I think, the learned Sessions Judge has been swayed with certain facts which have not been proved on record. There is nothing on record except the statement of co-accused Darshan Singh that Vijay Chand was a good driver and was having a driving licence. There is nothing on record to suggest even remotely that he had been driving the vehicle earlier efficiently. On the other hand, the evidence on record was that accused Vijay Chand was conductor appointed to be so and was working as such at the time of accident also.
The learned Sessions Judge while dealing with this aspect of the matter has observed while describing the facts of the case that the Appellants S/Sh. Vijay Chand and Darshan Singh were appointed as driver in the H.R.T.C. This observation is partly factually wrong inasmuch as, only Darshan Singh has been employed as driver, but Vijay Chand has been employed as Conductor. The learned Sessions Judge while dealing with the accusations against Darshan Singh accused regarding the abetment of the offences also observed as under:
...Now, had the bus been driven by a person who was neither an experienced driver nor he was known to the accused Shri Darshan Singh, then it could have safely been inferred that the accused Shri Darshan Singh had intentionally and knowingly allowed a person to drive the bus who did not know driving. But in the present case, the accused Shri Vijay Chand was driver of H.R.T.C. itself and as such, he was colleague of Shri Darshan Singh. Therefore, Shri Darshan Singh knew it fully well that Shri Vijay Chand was an experienced driver.
The charge of abetment has been negatived by the learned Sessions Judge on the aforesaid sole ground that Darshan Singh knew that Vijay Chand was an experienced driver and on that account even if Darshan Singh handed over the steering of the vehicle to Vijay Chand, it did net amount to abetting of any offence even if committed by Vijay Chand while driving the vehicle in a rash and negligent manner. At this stage, the statement, of Darshan Singh made on oath can safely be referred. He stated that he refused Vijay Chand to drive the vehicle, but Vijay Chand did not stop, and he could not stop the moving vehicle as by doing so there was likelihood of an accident having taken place. This Darshan Singh also stated that Vijay Chand handed over the licence Ext. DW. 2/A (objected to) to him. He also stated that he did not stop Vijay Chand from driving the vehicle forcibly because he was Checker and the witness feared from him.
At the cost of repetition, it may be very specifically pointed out at this stage that the learned Sessions Judge was absolutely ignoring the record, when he made the observations while describing the fact of the occurrence and thereafter also that Vijay Chand and Darshan Singh were employed as drivers in H.R.T.C. The employment of Vijay Chand being posted as driver in H.R.T.C. at the relevant time has neither been the case of the prosecution nor otherwise proved on record. Actually, as per record Vijay Chand at the relevant time was posted and working as conductor-cum-Checker in H.R.T.C., Una Depot. Even Vijay Chand himself did not claim to be working as driver in H.R.T.C. No doubt, it has been the defence of Darshan Singh that Vijay Chand was having a valid driving licence at that time and that Vijay Chand was coming to Shimla as he had received an interview card for the post of driver and he also showed his licence (stated to be so by DW. 1 Sh. Yashpal).
Even if for arguments sake it is assumed that Vijay Chand was having some driving licence at that particular time, will the possession of such a licence by Vijay Chand absolve Darshan Singh from the accusation put up against him in the present case? In order to reply this aspect of the matter, certain proved circumstances alongwith the law- in this behalf have to be considered.
The proved circumstances as discussed above, can be referred hereunder:
Darshan Singh was the driver of the bus;
Vijay Chand accused at the relevant time was working as Conductor-cum Checker in H.R.T.C. Una Depot;
Vijay Chand was also travelling in the same bus;
Vijay Chand drove the vehicle with the consent of Darshan Singh;
At the time of occurrence, Vijay Chand was driving the vehicle;
Rash and negligent driving of Vijay Chand was the cause of the accident, wherein various persons received fatal injuries and other received grievous and minor injuries.
As discussed above, Vijay Chand has been held to be guilty for the offence, he has been accused of in the present trial;
There is no evidence examined during the trial that Vijay Chand had some past experience of driving heavy vehicle;
The trend of the cross-examination did not reveal that Vijay Chand accused was having a driving licence and had an experience of driving various vehicle efficiently including heavy ones also. The possibility of the defence taken by Darshan Singh that Vijay Chand was a efficient driver being an after thought could not be ruled out.
It may be assumed that Vijay Chand was having some driving licence at that relevant time.
From the aforesaid circumstances, it can safely be said that this Darshan Singh accused the driver of the bus handed over the steering of the vehicle in favour of Vijay Chand, who at the relevant time was posted as Conductor-cum-Checker and had no practical experience of driving heavy vehicle even though it may be said that he was having some driving licence at the relevant time. In such circumstances, where the bus for driving had been handed over to a Conductor who though was having some driving licence but was not having any experience of driving the vehicle that too a heavy vehicle, in such circumstances, whether Darshan Singh could be held guilty for abetting the offences for which he has been accused of ? In this behalf law has to be appreciated in the aforesaid background.
Section 107 I.P.C. deals with abetment, which runs as under:
Abetment of a thing: A person abets the doing of a thing, who-
First: Instigates any person to do that thing; or
Secondly:Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly: Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1: A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2: Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
Clause ''thirdly'' coupled with Explanation-2 referred to above are very much relevant to the facts of the present case. A person abets by aiding, when by any act done either prior to, or at the time of the commission of an act, he intends to facilitate, and does in fact facilitate the commission thereof. In the present case, coming to the facts of the same, this Darshan Singh can (be) said to have facilitated the rash and negligent driving of the vehicle by Vijay Chand on the grounds that Darshan Singh knew fully well that Vijay Chand at the relevant time was working as Conductorcum-Checker in H.R.T.C. He also knew that he was not yet appointed as driver in H.R.T.C. It can be said to be within the knowledge of Darshan Singh that this Vijay Chand was not having any sufficient experience of driving heavy vehicle, and has not been posted as driver to drive such a vehicle. Darshan Singh himself stated that he gave the steering to Vijay Chand under the fear that he was a checker also. It has also come in the evidence examined by Darshan Singh that Vijay Chand was going to attend an interview at Shimla for the post of driver in H.R.T.C., and was having a driving licence. All these circumstances, clearly indicated that Darshan Singh knew fully well that handing over of vehicle to such a person, as referred to above, the likelihood of accident having been anticipated due to the rash and (SIC) negligent driving of Vijay Chand could not be ruled out. There is again nothing on record to suggest that Vijay Chand had any experience of driving such a vehicle on hill road and that too in night time. Needless to say, to drive a vehicle at night required more efficiency so as not to affect adversely the reflexes of a driver.
Thus on the basis of aforesaid proved facts, Explanation-2 of Section 107 IPC comes into play in the background of Section 107, "Thirdly'' as quoted above. In the present case, this Darshan Singh facilitated the rash and negligent driving of Vijay Chand prior to and at the time of the commission of the said act by Vijay Chand inasmuch as Darshan Singh did not prevent him from driving the vehicle as well as allowed Vijay Chand to drive the same. In this manner, Darshan Singh can be said to have intentionally aided Vijay Chand in his act of rash and negligent driving of the vehicle so as to endanger human life and personal safety of others and thus likely to cause hurt or injury including fatal one to them. In this context, Darshan Singh cannot escape from the criminal liability of committing offences under Sections 279, 337, 338, 304-A read with Section 109 IPC. The prosecution did not put the charge-sheet u/s 114 IPC, though admittedly Darshan Singh was present in the bus from the time he handed over the steering of the bus to Vijay Chand till the taking place of occurrence.
No specific precedent could be cited on behalf of either of the party so as to cover the aforesaid proposition, in the background of the present case. However, a case, not exactly of similar facts, but on certain other facts, can definitely be taken note of in deciding the proposition in hand which has been published in AIR (38) 1951 Punjab 418, Ram Rup v. The Crown.
The aforesaid case was decided by the Division Bench of Punjab High Court, wherein the facts involved were that ''R'' was the proper driver and in control of a lorry carrying passengers allowed ''H'' a minor with full knowledge that ''H'' did not know driving well, to drive the lorry so rashly and negligently as to endanger the lives and personal safety of the passengers inspite of the protests of the passengers and ''P'' was also sitting by the side of ''H'' when the accident took, place. That accident resulted in causing grievous hurt to some passengers. In this reported case, it was held that ''R'' was liable as a principal offender under the provisions of Section 114. In fact he was the person driving through the hand and instrumentality of the boy ''H'' to whom he had consciously and knowingly given the steering wheel, and accordingly this ''R'' was held liable u/s 338, 279 IPC.
In this very Judgment, the following observations under para 6 were very much relevant:
If it was necessary to hold I would hold that Ram Rup, in the words of Section 107, Expl.2 read with Sections 336 and 279 prior to and at the time of the rash and negligent driving by Hari Parkash, facilitated his rash and negligent driving and therefore, intentionally aided him (both by not preventing him from driving as well as by allowing him to drive) in his act endangering human life and personal safety of others and likely to cause hurt or injury to them.
There is no doubt that the aforesaid observations were obiter and actually that Ram Rup was held guilty under Sections 338, 279 IPC being principal offender u/s 114 IPC, but the fact remains that in the reported case, the person to whom the steering had been handed over was a minor and was not knowing driving well, though he knew the driving and it was on that score that the driver was held guilty as the principal offender u/s 114 IPC.
In the case in hand, as referred earlier, this Vijay Chand was not working as a driver in H.R.T.C. and had no experience of driving heavy vehicle like buses, even though he might be having driving licence, it could be inferred that by handing over the steering of the bus in favour of a person not fully conversant with the driving of such like vehicle, the likelihood of that person having driven the vehicle rashly or negligently could easily be anticipated and with that background, the action of Darshan Singh can definitely be covered under the definition of abetment u/s 107 IPC, discussed above.
It may be referred here that had it been proved on record that Vijay Chand was at the relevant time posted as driver in H.R.T.C., as has been observed by the learned Sessions Judge, the question of abetting the offence by Darshan Singh could have been legally avoided. Learned Sessions Judge fell into an error in appreciating a fact which was not at all available on record, the findings of acquittal as such by the learned Sessions Judge can safely be said to be the result of perverse appreciation of evidence, (SIC) when such evidence was not available at all. In these circumstances, the acquittal order passed by the learned Sessions Judge definitely requires interference and Darshan Singh can safely be convicted under Sections 279, 337, 338, 304-A read with Section 109 IPC. The appeal against acquittal as such, stands accepted.
In view of the foregoing reasons, the Revision Petition preferred by Vijay Chand is dis-allowed and the appeal against acquittal of Darshan Singh preferred by the State of Himachal Prades his accepted, and as a consequence, thereof, the conviction and sentences awarded against both the accused persons by the trial Magistrate are maintained. Both the accused are directed to surrender before the trial Magistrate to undergo the aforesaid sentences without any undue delay. The copy of this judgment be sent to the trial Magistrate for strict compliance in accordance with law.