Virender Singh @APPELLANT@Hash State of Himachal Pradesh

Sandeep Sharma, J.

Instant criminal revision petition filed under S. 397 read with S. 401 CrPC, is directed against judgment dated 22.10.2009, passed by the learned

Additional Sessions Judge, Solan, District Solan, Himachal Pradesh in Cr. Appeal No. 22-S/10 of 2009, affirming judgment/order of conviction dated

6.6.2009, passed by the learned Chief Judicial Magistrate, Solan, District Solan (HP) in Criminal Case No. 171/2 of 2003, whereby learned trial Court

while holding petitioner-accused (hereinafter, ‘accused’) guilty of having committed offences punishable under Ss. 279 and 337 IPC, convicted

and sentenced the accused to undergo simple imprisonment for six months and to pay Rs.500, each and in default of payment of fine, accused has

been ordered to further undergo simple imprisonment for a period of one month under both the offences.

Briefly stated the facts, as emerge from the record, are that PW-1 (Complainant) Dr. U.K. Neogi, got his statement recorded under S. 154 CrPC,

on 10.1.2005, alleging therein that on the intervening night of 13th and 14th June 2003, at about 2.30 am, at place “Suki Johari†on National

Highway 22, accused was driving Ambassador car bearing registration No. HR-49A(T)-0111, in a rash and negligent manner, so as to endanger

human life and personal safety of others, as a consequence of which, he hit his (complainant’s) Fiat car bearing registration No. DL-3CQ-1763

being driven by him. On account of aforesaid accident, wife of the complainant Smt. S. Neogi and daughter D. Neogi, who at the relevant time, were

traveling alongwith the complainant suffered injuries, whereas, huge damage was caused to his Fiat car. Complainant specifically alleged that the

accused was driving his vehicle in a rash and negligent manner at the time of alleged accident. On the basis of aforesaid statement, having been made

by the complainant, a formal FIR Ext. PW-4/A dated 12.1.2005 came to be registered against the accused under Ss. 279 and 337 IPC at Police

Station, Dharampur, District Solan, Himachal Pradesh.

After completion of investigation, police presented Challan in the competent Court of law i.e. Chief Judicial Magistrate, Solan, District Solan,

Himachal Pradesh, who being satisfied that prima facie case exists against the accused, put notice of accusation to accused for having committed

offences punishable under Ss. 279 and 337 IPC, to which he pleaded not guilty and claimed trial. Learned trial Court, subsequently, vide

judgment/order dated 6.6.2009, held accused guilty of having committed offences punishable under Ss. 279 and 337 IPC and accordingly, convicted

and sentenced him as per description given herein above. Being aggrieved and dissatisfied with the impugned judgment/order of conviction passed by

learned trial Court, accused preferred an appeal under S. 374 CrPC, before the learned Additional Sessions Judge, Solan, who vide judgment dated

22.10.2009, dismissed the appeal and upheld the judgment of conviction passed by trial court. In the aforesaid background, accused has approached

this court in the instant proceedings, seeking his acquittal, after setting aside the judgments/order of conviction recorded by learned Courts below.

Ms. Shivani Kanwar, learned counsel representing the accused, while referring to the judgments/order of conviction passed by learned Courts

below, vehemently argued that the same are not sustainable in the eyes of law being not based upon correct appreciation of evidence adduced on

record by the respective parties and as such, deserve to be quashed and set aside. With a view to substantiate her aforesaid submission, she made this

court to travel through the evidence adduced on record by the prosecution and contended that there is no evidence, if any, on the record led by

prosecution suggestive of the fact that the offending vehicle was being driven rashly and negligently, at the time of alleged accident, as such, there

was no occasion for the learned Courts below to have held accused guilty of the commission of offences under Ss. 279 and 337 IPC. Ms. Shivani

Kanwar, further contended that there is no explanation rendered on record as to why the wife and the daughter of the complainant, who at the

relevant time were traveling with the complainant, were not cited as prosecution witnesses, because their testimony, if any, could be material for the

learned Courts below to adjudicate the controversy at hand. While referring to the statement of PW-1 (complainant), Ms. Shivani Kanwar strenuously

argued that that this witness nowhere stated that the accident occurred on account of fault, if any, of the accused. While inviting attention of this Court

to the spot map, Ext. PW-5/A, prepared immediately after the incident by the investigating agency, Ms. Shivani contended that the bare perusal of

same itself suggests that the vehicle being driven by the complainant was on the wrong side. Lastly, Ms. Shivani Kanwar, contended that since it has

come on record that the accident took place near a Dhaba, it is not understood why efforts were not made by the prosecution to associate independent

witnesses, though they were available in abundance.

Mr. Dinesh Thakur, learned Additional Advocate General, while supporting the impugned judgments/order of conviction recorded by learned Courts

below, contended that keeping in view the reasoning assigned by the learned Courts below for holding the accused guilty of having committed

offences punishable under Ss. 279 and 337 IPC, there is no scope of interference by this court, especially in view of the concurrent findings of facts

and law recorded by the learned Courts below. He further contended that bare perusal of judgments passed by learned Courts below clearly suggests

that both the learned Courts below have dealt with each and every aspect of the matter meticulously leaving no scope of interference by this court to

re-appreciate the evidence that too in the present proceedings. While refuting the contention of Ms. Shivani Thakur, learned counsel representing the

accused that prosecution was not able to prove beyond reasonable doubt that the offending vehicle was not being driven rashly and negligently by the

accused, Mr. Dinesh Thakur, learned Additional Advocate General, while inviting attention of this Court to the statements of PW-1 (complainant) and

PW-5 H.C.

Anil Kumar contended that both these witnesses in unison have stated that at the time of alleged accident, vehicle i.e. Ambassador car was being

driven rashly and negligently by the accused, as a consequence of which, wife and daughter of complainant, suffered injuries. Mr. Thakur, learned

Additional Advocate General, further contended that true it is that correct dimensions have not been mentioned in the spot map, Ext. PW-5/A, but if it

is read in its entirety, it clearly suggests that accused was on the wrong side whereas complainant was on his right side, while driving his vehicle. Mr.

Thakur, learned Additional Advocate General, further contended that it has specifically come in the statement of PW-1 that at the time of alleged

accident, vehicle was being driven by accused in a rash and negligent manner, as such, it can not be said that there is no evidence, if any, with regard

to rash and negligent driving of the accused.

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

Having heard the learned counsel representing the parties and perused the evidence adduced on record by respective parties vis-Ã -vis impugned

judgments/order of conviction, this court finds that there is no dispute, if any, with regard to the accident, rather, accused has admitted the factum of

accident but in his statement recorded under S. 313 CrPC, he has stated that the accident occurred on account of fault of the complainant, who was

allegedly driving on the wrong side.

Prosecution in the case at hand, with a view to prove its case, examined as many as nine witnesses, but PW-1, complainant, is the sole eye witness

of incident, which allegedly happened at 2.30 am. It is not in dispute that at the time of alleged accident, wife and daughter of complainant, who

allegedly received injuries in the accident, were also traveling in the Fiat car, but it is not understood that what prevented the prosecution from citing

them as witnesses. If the statement of Dr. U.K. Neogi, PW-1 is perused in its entirety, it compels this court to agree with the contention of Ms.

Shivani Thakur, learned counsel representing the accused that there is no specific assertion/allegation, if any, of rash and negligent driving by the

accused, at the time of alleged incident. Though, this witness has stated that the accident occurred due to rash and negligent driving of accused, which

itself is not sufficient to prove rashness and negligence of accused. He has stated that the vehicle was being driven in high speed. Hon'ble Apex Court

and this court in a catena of judgments have repeatedly held that speed is not the sole criteria to ascertain rashness and negligence but in this case,

PW-1, in his statement has stated that the accident occurred on account of high speed and wrong direction of the vehicle being driven by accused. In

his cross-examination, this witness admitted that three buses could easily pass from the place, where alleged accident took place. He also admitted

that he had seen the offending vehicle coming from a distance of 50 metres.

PW-2 Constable Durga Dutt, who after having received telephonic information reached the spot, though stated in his statement that the offending

vehicle i.e. Ambassador car was being driven in a rash and negligent manner by accused, but his statement may not be very relevant since he had no

occasion to witness the accident, if any, with his own eyes, rather he can be termed to be merely a hearsay witness. Simply, statement, if any, with

regard to rash and negligent driving, having been made by PW-5 also needs to be ignored because he came on the spot after the alleged accident.

PW-5 H.C. Anil Kumar, who investigated the matter, also stated that the car bearing registration No. HR-49PA(T)-0111 was being driven rashly and

negligently but it is not in dispute that this witness had no occasion to see accident with his own eyes.

Otherwise also, if the spot map, Ext. PW-5/A is perused, it completely demolishes the case of prosecution. Careful perusal of Ext. PW-5/A (Spot

map) suggests that the vehicle i.e. Fiat Car bearing registration No. DL-3CQ-1763 being driven by complainant, was on the verge of crossing the

centre line, meaning thereby accused was correct while making statement under S. 313 CrPC that the accident occurred on account of fault of

complainant, who was on the wrong side.

By now, it is well settled that rashness and negligence can not be presumed, rather, same need to be proved by leading cogent and convincing

evidence. 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. 4. 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. 279 and 337 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€​

At this stage, learned Additional Advocate General placed reliance on judgment passed by the Hon’ble Apex Court titled State of Kerala Vs.

Puttumana Illath Jathavedan Namboodiri (1999)2 SCC 452, to suggest that this court has limited jurisdiction under Section 397 of the Cr.PC.

As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ble Apex Court in

Krishnan and another Versus Krishnaveni and another, (1997) 4 SCC 241; has held that in case Court notices that there is a failure of justice or

misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or

miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or

order. The relevant para of the judgment is reproduced as under:-

“8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High

Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out

justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However,

the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under

Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence

or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct

irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order.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. 279

and 337 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 22.10.2009 passed by the learned

Additional Sessions Judge, Solan, District Solan, Himachal Pradesh in Cr. Appeal No. 22-S/10 of 2009 and judgment/order of conviction dated

6.6.2009, passed by the learned Chief Judicial Magistrate, Solan, District Solan (HP) in Criminal Case No. 171/2 of 2003 are quashed and set aside.

Accused is acquitted of the offences punishable under Ss. 279 and 337 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.