The High Court of Himachal Pradesh dismissed the State's criminal appeal against the acquittal of the accused. The Court held that the prosecution failed to prove beyond reasonable doubt that the accused drove rashly or negligently, as high speed alone does not satisfy the statutory requirements for sections 279 and 304-A IPC.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA ON THE 7th DAY OF JULY, 2022 BEFORE HON’BLE MR. JUSTICE SANDEEP SHARMA CRIMINAL APPEAL NO. 199 of 2020
Between:
STATE OF HIMACHAL PRADESH
….APPELLANT
(BY MR. NARENDER GULERIA, ADDITIONAL ADVOCATE GENERAL)
AND
ARUN RANA, S/O SHRI ANUP RAM RESIDENT OF VILLAGE TARAKDA, PO BARI TEHSIL AND PS KULLU, DISTRICT KULLU, H.P.
(BY MR. MAAN SINGH, ADVOCATE)
….RESPONDENT
Whether approved for reporting?.
This appeal coming on for hearing this day, the Court passed the following:
JUDGMENT
Instant Criminal Appeal filed under Section 378 (3) of the
Cr.PC., lays challenge to impugned judgment dated 10.12.2019, passed by the learned Sessions Judge, Kullu, District Kullu, H.P., in Criminal Appeal No. 40 of 2019, reversing the judgment of conviction and order of sentence
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dated 31.8.2019 and 5.9.2019, whereby the learned Chief Judicial Magistrate, Kullu, District Kullu, H.P., while holding the petitioner accused guilty of having committed offence punishable under Sections 279 & 304-A of IPC and Section 187 of Motor Vehicles Act, convicted and sentenced him as per description given herein below:
| Sr. No. | Section | Imprisonment | Fine |
|---|---|---|---|
| 1. | 279 of IPC | Three months | Rs. 1000/- In default of payment of fine, SI for 15 days. |
| 2. | 304-A IPC | Six months | Rs. 5000/- In default of payment of fine, SI for 15 days. |
| 3. | 187 of MV Act | Two months | Rs. 500/- In default of payment of fine, SI for 15 days. |
2. Precisely the facts of the case as emerge from the record are that on 4.11.2012, around 5:30pm, allegedly accused while driving bus bearing registration No.HP34B-2725 rashly and negligently, hit the deceased Sunil Kumar, near Indane Gas Agency, Kullu, as a consequence of which, person named herein above suffered injuries and was taken to RH Kullu, from where he was referred to PGI Chandigarh. However, unfortunately deceased while under treatment passed away. Complainant PW1 Smt. Murti Devi, sister in law of the above named deceased got her statement recorded under Section 154 Cr.PC, alleging therein that
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deceased Sunil Kumar suffered injuries after being hit by bus being driven rashly and negligently by the accused. On the basis of aforesaid statement made by the complainant PW1, FIR Ext.PW7/B, came to be lodged against the accused. Police after completion of investigation presented challan in the competent court of law, which on being satisfied that prima-facie case exists against the respondent-accused, charged him under Sections 279 and 304-A, IPC and Section 187 of the MV Act, to which he pleaded not guilty and claimed trial. Prosecution with a view to prove its case examined as many as seven witnesses, whereas accused in his statement recorded under Section 313 Cr.PC denied the case of the prosecution in toto and claimed himself to be innocent.
3. Learned trial Court on the basis of evidence adduced on record by the prosecution held the accused guilty of having committed offences punishable under aforesaid provisions of law and accordingly, convicted and sentenced him vide judgment/order dated 31.8.2019/5.9.2019. Being aggrieved and dissatisfied with aforesaid judgment of conviction recorded by the learned trial court, accused preferred an appeal in the court of learned Sessions Judge Kullu, District Kullu, HP, praying therein for his acquittal after setting aside judgment of conviction recorded by the court below. Learned Sessions Judge, Kullu, allowed the appeal and acquitted
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the accused after setting aside the judgment of conviction recorded by the court below. In the aforesaid background, appellant-State has approached this Court by way of instant proceedings, praying therein restoration of judgment of conviction and order of sentence recorded by the court below after setting aside the judgment of acquittal recorded by the learned Sessions Judge Kullu.
4. Having heard learned counsel for the parties and perused material adduced on record by the prosecution vis-à-vis reasoning assigned by the learned Sessions Judge while acquitting the accused, this Court finds no force in the submission of learned Additional Advocate General that learned Sessions Judge below has not appreciated the evidence in its right perspective, rather this court having scanned the entire evidence led on record by the prosecution has no hesitation to conclude that prosecution was unable to prove beyond reasonable doubt that deceased Sunil Kumar died on account of rash and negligent driving, if any, of the accused, rather prosecution evidence led on record itself suggests that deceased Sunil Kumar died on account of his own negligence.
5. PW1 complainant Murti Devi, deposed that at the time of the accident, she was going to Akhara Bazar and when she reached near Indane Gas Agency, her brother in law i.e. deceased Sunil Kumar was
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walking ahead of her. She deposed that accused came driving the bus from the main road side and when he entered the link road leading to the busstand, conductor side of the bus hit the deceased, as a result of which, he fell down on the road and sustained injuries. In her cross-examination, this witness stated that accident did not occur on account of rash and negligent driving of the driver, rather, it happened because of fault of the Conductor. If the cross-examination conducted on this witness, is perused in its entirety, it clearly reveals that though in the alleged incident, deceased Sunil Kumar suffered injuries after being hit by the bus being driven by the accused, but accused was not hit from the front portion of the bus, rather he after being hit by the rear side of the bus fell down on the road. PW1, in her cross-examination, stated that Conductor could have easily avoided the incident by whistling to stop the bus, meaning thereby, deceased was hit by the rear portion of the bus and that too on Conductor side and as such, driver of the vehicle did not have any occasion to see the deceased from his side while he was crossing the road. In the crossexamination, complainant also admitted that deceased Sunil Kumar used to remain ill and was confined to bed. She also stated that on the day of the occurrence, he was lifted and was taken outside the house because there was election on that day. Version put forth by PW1 otherwise creates
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doubt with regard to story of the prosecution that at the time of the alleged incident, deceased was walking on the road. If the deceased was unable to walk and he was taken outside the house with the help of other persons, there is no question of his walking on the road alone.
6. Interestingly, one independent witness (PW4) Ram Singh, denied the case of the prosecution in toto and as such, was declared hostile. In his cross-examination, he denied that bus bearing registration No. HP-34B-2725 being driven by the accused came in his presence in high speed and hit one person, who was walking on the road. This witness denied that accused was driving his vehicle in rash and negligent manner.
7. PW7 Dy. SP Sanjeev Kumar, who had an occasion to investigate the case, deposed that on the date of alleged incident, he prepared the spot map Ex.PW7/C. In the spot map Mark-X, in red ink, is the place of accident, where deceased was hit by the bus. Interestingly, case of the prosecution is that deceased was going towards the main road side and the bus being driven by the accused entered into the road leading to bus stand, Kullu and Mark-X is on the left side of the road. Spot map suggests that bus being driven by the accused came from the main KulluManali highway and entered the road leading to bus stand, meaning thereby, accused was driving his bus on the left side whereas, as per story
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of the prosecution, deceased was on the right side of the road as he was going towards main highway. The place Mark-X is not on the extreme right side, but it has been shown a little bit towards middle of the road. If the position of the spot map is taken to be correct, it can safely be inferred that at the time of the alleged incident, deceased was walking on the mid of the road. Since deceased was not hit by the front side of the vehicle, it can be safely inferred that driver of the vehicle was careful while driving the bus. However, deceased, who, at that relevant time, was walking on the middle of the road, was not vigilant, that is why, he was hit by rear portion of the bus. Though suggestion put to Investigating Officer that deceased himself was at fault as he tried to cross the road without taking due precaution, came to be denied by the Investigating Officer, but it itself suggests that accused took a specific plea before the learned trial court that deceased was at fault while walking on the road at the time of the accident in question.
8. Statements of PW1, PW4 and PW7 are relevant for determining the guilt, if any, of the appellant-accused, whereas statements made by other witnesses may not be relevant to determine the correctness of the finding returned by the court below because they are witnesses of record.
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9. PW5 Dr. Manoj Kumar while proving MLC Ext.PW5/A stated
that four injuries were suffered by the deceased in the incident and those were in the nature of the swelling. No external wound/bruise was found on the person of the deceased. Had the front portion of the bus hit the deceased, he would have sustained the external injuries. Since deceased came to be hit by the rear portion of the bus, he did not suffer any external injury on his body, rather he suffered internal injuries after having fallen on the road. Cross-examination conducted on PW5 further reveals that injuries allegedly suffered by the deceased could be on account of fall on the ground.
10. Leaving everything aside, none of the prosecution witnesses stated something specific with regard to rash and negligent driving, if any, by the appellant-accused. Section 279 deals with rash and negligent driving or riding on a public way. Bare reading of the aforesaid provision makes it clear that it must be established that the accused was driving vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Similarly in Section 304A, 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
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statements made by prosecution witnesses are accepted on its face value, there is no evidence to prove that vehicle in question was being driven "rashly and negligently. Mere “high speed” may not be sufficient to conclude guilt, if any, of the accused under Section 279 IPC, rather to attract Section 279, it is incumbent upon the prosecution to prove the rash and negligent driving. 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 , relevant paras whereof read 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.
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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.”
11. 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.
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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.
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12. Careful perusal of aforesaid judgment clearly suggests that there cannot be any presumption of rashness or negligence, rather, onus is always upon the prosecution to prove beyond reasonable doubt that vehicle in question was being driven rashly and negligently. In the aforesaid judgment, it has been specifically held that in the absence of any material on record, no presumption of rashness or negligence can be drawn by invoking maxim res ipsa loquitur . In the case at hand, learned trial court held the accused guilty of his having committed offence punishable under Sections 279 and 304-A IPC without there being any specific evidence of rashness, if any, on the part of the accused. Having regard to the finding that accused was driving the bus in high speed, this court is of the view that, since no specific finding has been recorded by the learned trial court to the factum that accused was driving bus rashly and negligently, petitioner- accused cannot be held guilty of his having committed offence
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punishable under section 279 of IPC. None of the prosecution witnesses stated something specific with regard to rash and negligent driving of the accused. PW1 stated that vehicle in question was being driven in high speed. High speed is a relative term and it is 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 prosecution and there is a presumption of innocence in favour of the accused until contrary is proved. In the absence of any material available on record, no presumption of rash and negligent driving can be drawn. There is evidence to show that deceased suffered injury after being hit by rear portion of the bus, meaning thereby, driver of the vehicle had no opportunity to see the deceased while he was crossing the road.
13. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon’ble Apex Court, this Court finds no illegality and infirmity in the judgment passed by the learned Sessions judge while setting aside the judgment of conviction and order of sentence passed by the learned trial court and as such, same is upheld. Accordingly,
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the appeal is dismissed being devoid of any merits. Pending applications, if
any, shall also stand disposed of.
7th July, 2022 (Sandeep Sharma), (manjit) Judge
2 issues framed by the court
Whether the prosecution proved beyond reasonable doubt that the accused drove the vehicle rashly and negligently under Section 279 and 304-A IPC.
Whether high speed driving alone constitutes an element of rashness or negligence sufficient for conviction under Sections 279 and 304-A IPC.
Colour shows how this judgement treated each authority
Braham Dass v. State of Himachal PradeshExplained¶40
Braham Dass v. State of Himachal Pradesh, (2009) 3 SCC (Cri) 406 · Who else cites this
State of Karnataka v. SatishFollowed¶46
State of Karnataka v. Satish, 1998 (8) SCC 493 · Who else cites this
4 provisions across 3 enactments
State of Himachal Pradesh
Arun Rana
Sandeep Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
