Bhola Chouhan Vs State of Jharkhand

2. The instant criminal revision is directed against the judgment dated 22.03.2003 passed by learned Additional Sessions Judge-III, Dhanbad in Criminal Appeal No. 27 of 1994, whereby and whereunder the appellate court has dismissed the appeal preferred by the petitioner and confirmed the judgment of conviction and order of sentence dated 27.01.1994 passed by learned J.M. 1^st Class, Dhanbad in G.R. No. 3563 of 1990 arising out of Jorapokhar P.S. Case No. 359 of 1990, whereby the petitioner has been held guilty and convicted for the offence punishable under Sections 279 and 304-A of the I.P.C. and directed to undergo R.I. of 02 years for the offence under Section 304A of I.P.C. and R.I. of 05 months for the offence under Section 279 of I.P.C. Both the sentences were directed to run concurrently.

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3. Factual matrix giving rise to this revision is that on 09.11.1990 at about 2:15 P.M. the Truck No. BHT 243 was parked near Jamadoba Kata Ghar in empty condition. It is alleged by informant Surendra Prasad Singh, who was on duty at the aforesaid Khataghar that the driver of the aforesaid truck started and moved the vehicle while the khalasi Srikant Ram, after opening the gate, was trying to board on the truck, due to which, he fell down and came under rear wheel of the truck then driver stopped the vehicle. It is alleged that with the assistance of informant and other local persons including the driver of the vehicle, the injured khalasi was lifted on the truck and was brought to hospital, but declared as dead. On the basis of above information, FIR being Jorapokhar P.S. Case No. 359 of 1990 was registered under Sections 279 and 304A of the I.P.C. and after conclusion of investigation, charge sheet was submitted against the driver of the vehicle namely, Bhola Chouhan under Sections 279 and 304-A of the I.P.C. 4. The accused denied from substance of accusations explained to him and claimed to be tried.

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5. In course of trial, altogether three witnesses were examined by prosecution namely, Surendra Prasad Singh (P.W.-1), Dalbir Singh (P.W.-2) and Dr. D.K. Dhiraj (P.W.-3). Apart from oral evidence of witness, the prosecution has also adduced following documentary evidence:-

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Exhibit-1 : Signature of informant on fardbeyan.

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Exhibit-2 : Post-mortem report of the deceased.

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6. On the other hand, the case of defence is that the vehicle was not being driven in a rash and negligent manner, rather on instruction of the deceased khalasi, the vehicle was moving in reverse gear, meanwhile without communicating to the driver, the khalasi started stepping over the truck for boarding and due to his own negligence, he fell down and came under the rear wheel of the truck. Admittedly there was no speed at all while moving the truck in back gear for purpose of making space to go forward. The driver (petitioner) was neither driving the vehicle in rash and negligent manner nor he was aware that the khalasi was trying to board on the vehicle. Therefore, accused is absolutely innocent and has committed no offence at all. He has been falsely implicated in this case only on the ground that he was driving the vehicle at the time of occurrence.

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7. The learned trial court, after appreciating the evidence of witnesses has recorded the findings that due to rash and negligent driving of the truck by its driver, the accident took place and convicted and sentenced the petitioner. The learned appellate court also concurred with the findings recorded by the learned trial court and dismissed the appeal, which has been assailed in this revision.

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8. Learned counsel for the petitioner has submitted that the learned trial court as well as learned appellate court has miserably failed to appreciate that for invoking the offence under Section 304-A and 279 of the I.P.C., there must be rash and negligent driving on the part of the driver and mere death of any person itself is not sufficient for attracting the aforesaid offences. In the instant case, P.W.-1 has clearly stated that the deceased was instructing the driver while the vehicle was moving back side in reverse gear. P.W.-1, who is the sole eye-witness of the occurrence, in his cross-examination, has specifically stated that the deceased was instructing the driver while vehicle moving in reverse gear, meanwhile the deceased suddenly hold of the gate and fell down and came under the wheel while it was moving in back side. P.W.-2 is not an eye-witness of the occurrence and P.W.-3 is the Doctor. Therefore, the sole testimony of P.W.-1 clearly shows that the main ingredients of the offence regarding rash and negligent driving has not been proved to the hilt, but the learned trial court has conjectured on assumption and presumption that it was rash and negligent driving, merely because of death of the khalasi of the vehicle. Therefore, the impugned judgments and orders are absolutely perverse and beyond the weight of evidence and illegal interpretation of the evidence of P.W.-1, which is not sufficient to prove the ingredients of offence

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involved in this case. Therefore, this revision is fit to be allowed and the conviction and sentence of the petitioner may be set aside.

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9. On the other hand, learned Spl. P.P. appearing for the State has vehemently opposed the contentions raised on behalf of the petitioner and submitted that there is concurrent findings of facts about rash and negligent driving of vehicle by its driver (petitioner) as a result of which, the khalasi met an accident coming under the wheel of the truck and died. The learned trial court as well as learned appellate court has committed no error of law in convicting and sentencing the petitioner. Therefore, there is no merit in this revision, calling for any interference in the impugned judgment and order, which it fit to be dismissed. 10. I have gone through the record of the case along with impugned judgment in the light of contentions raised on behalf of both side. It appears that the sole eye-witness of the occurrence is P.W.-1, Surendra Prasad Singh, who is the informant of the case. He has specifically stated in his examination-in-chief that the offending truck was parked at his Dharam-katta and after weighing the truck, at a distance of 15 ft., the khalasi was instructing the driver for backing the vehicle. In the course of moving the vehicle in back gear, the khalasi (cleaner) came under left front wheel of the truck. He was brought to hospital, but died.

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In his cross-examination, he states that in course of reversing the vehicle in back gear, khalasi (cleaner) climbed over gate at left side for boarding on the vehicle, meanwhile, he fell down and came under the wheel. P.W.-2 Dalbir Singh is admittedly hearsay of the witness and assisted in taking injured to hospital. P.W.-3 Dr. D.K. Dhiraj has conducted post-mortem on the dead body of the deceased and found multiple injuries, which was opined to be caused due to internal heamorrhage and shock due to blunt force injuries, which are consistent with the history of road traffic accident.

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11. In the instant case, there is no doubt that the deceased died in vehicular accident, but mere occurrence of an accident does not automatically implies negligence or rashness, rather the prosecution must establish beyond all reasonable doubt that the accused was driving in rash or negligent manner directly causing the death of the victim. It has been held in catena of judgment passed by Hon’ble Apex Court that “ negligence of the driver cannot be presumed merely because an accident has occurred. The principle of res ifsa loquitur applies only where the nature of the accident justifies such an inference .”

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12. In the case of Mohammed Aynuddin @ Miyan Vs. State of Andhara Pradesh reported in (2000) 7 SCC 72 , the Hon’ble Apex Court has explained that rashness implies

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over hasty conduct without due care, while negligence denotes a culpable failure to exercise reasonable caution. It clarifies that criminal negligence cannot be presumed merely because an accident incurred. The prosecution must lead specific evidence of the manner of driving and surrounding circumstances. It was also emphasized that Section 304A of I.P.C. applies only where there is absence of intention or knowledge to cause death, distinguishing it from culpable homicide.

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13. In the instance case, it is quite obvious that except P.W.-1, there is no eye-witness of the occurrence. The testimony of P.W.-1 itself suggests that while moving the vehicle in reverse gear, the khalasi (deceased) was instructing the driver. The speed was also moderate and it was not within the knowledge of the driver (accused) that the khalasi was in haphazard manner started boarding on the vehicle holding the handle of gate and also fell down while the vehicle was moving in back gear. Therefore, it cannot be presumed that the driver was driving the vehicle either in rash or negligent manner, rather he was moving back the vehicle on instruction of the deceased (khalasi).

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14. In the aforementioned facts, I am of the clear-cut view that both learned trial court and learned appellate court have failed to properly understand the true import of the evidence of P.W.-1 as well as that the main ingredients of

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offence under Sections 279/304A of I.P.C. regarding rash and negligent driving must be proved.

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15. In the instant case, there is no material to show that while moving back the truck, driver was driving rash and negligent manner, which resulted in death of the deceased. Therefore, the impugned judgments and orders are absolutely illegal, improper and cannot be sustained under law.

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16. Accordingly, the impugned judgment of convictions and sentence of the petitioner are hereby set aside.

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17. This criminal revision is allowed.

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18. Petitioner is on bail, as such, he shall be discharged from the liability of bail bond and sureties shall also be discharged.

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18. Let a copy of this judgment be sent to the court concerned for information and needful.

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(Pradeep Kumar Srivastava, J.)

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Jharkhand High Court, Ranchi Dated : 09/06/2026