1. This is an appeal on behalf of the State against the order of acqulital of the respondents Ranjit Singh and Mangtu Ram under Sections 279, 337 and 426 of the Indian Penal Code, Passed by theMagistrate Second Class, Alwar. On the 10th July, 1959.
2. Two vehicles No. RJL 500.1 and Car No. RJL 5026 collided at a place known as Kati Ghati Chauraha on the Alwar-Jaipur road on the 19th of October, 1957, at about 7 P. M. Mangtu Ram respondent was driving the bus and was proceeding from Alwar to Jaipur while Ranjit Singh respondent was driving the car and was proceeding from Jaipur to Alwar.
3. In that collision Ranjit Singh respondent was hurt and both the bus and the car were damaged. The prosecution case is that both the bus and the car were being driven on the wrong side of the road and did not dip their lights when they were facing one another. It is further alleged that the brakes of the bus were not in order. The report of this collision was made by Mangtu Ram' at the Eolice Station Sadr Alwar at 9.45 P.M. Both the respondents were challanged before the Magistrate First Class Alwar. He recorded the evidence of some prosecution witnesses and the case was latter on transferred to the Magistrate Second Class, Alwar. In the bus one of the passengers was Shri Chiranji Lal Kala, Deputy Collector (Jagir),, Jhutajhumi. On the 24th of October, 1958, while the case was before the First Class Magistrate, the prosecution had sought an adjournment for producing him. Then a further adjournment was sought oh the 18th of May, 1959, and the case was adjourned to the 3rd of June, 1959. Even on the 3rd of June, 1959, the witness was not available and the learned Magistrate closed the prosecution evidence.
4. The learned magistrate came to the conclusion that all the witnesses who had been produced by the prosecution were witnesses who had seen the condition of the bus and the car after the accident and none of them deposed as to what was the state of affairs when the accident took place- fie held that this evidence was not sufficient to prove any offence against the respondents and, therefore they were ordered to be acquitted.
5. In this appeal on behalf of the State two points have been urged- The first is that the joint trial of both the respondents for offences under Sections 279, 337 and 426 could not be held as as contrary to the provisions of Section 239 of the Code of Criminal Procedure and it should be ordered by this Court that the case should be retried. The second point is that though three adjournments had been granted for producing Shri Chiranji ]Lal Kalla who could state as to what was the state of affairs when the collision took place, yej the witness was either not served or after service he had not sufficient time to attend the court and the prosecution should be granted another opportunity for Producing him.
6. First we take up the question whether the joint trial of this case was in accordance with the provisions of S- 239 of the Code of Criminal Procedure. .Under Section 239(d) of the Code of Criminal Procedure persons accused of the different offences committed in the course of the same transaction can be charged and tried together. Interpretation) of the words 'in the course of the same transaction' has engaged 'the attention of the courts in a number of cases. The innumerable ways in which the offences are committed make it very difficult to lay down any comprehensive connotation % these words. Under Section 235(1) the provision is that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
Thus, in order to form one transaction, the acts constituting that transaction must be to one series. But in order that the various acts may form one series it is not necessary that these acts may not be independent of one another. Even if several independent acts are responsible for producing a particular result those acts may constitute one series. Further, there must be some connection established between the various acts to order that they be part of the same (transaction. 'Such connection may be established in many ways subjectively,, e.g., by same intention, knowledge or community of purpose &c.; and objectively, e. g., by proximity of time or place, continuity of purpose and action &c.;'--(Sarkar's Criminal Procedure Edn, June 1956-- p. 433).
It is not necessary that all these factors should be Present at one and the same time in order to establish a connection between the various acts- There may not be unity of time and placa yet there may be community of purpose and the various acts may form part of the same transaction. In some cases the unity of purpose may be at all lacking, still the various acts may constitute one transaction- In each case, the court has to look to all the circumstance(r) of the case and gather from these circumstances, whether the transaction constituted by fitnese various acts should be treated as one transaction or not. The words that occur in Section 239 (d) are the course of the same transaction'. Here the expression 'the same transaction' also carries the same meaning as given to it in Section 235(1). The words in the course of 'the saP'16 transaction' only mean during the period when the first act forming the series was committed and the commission of the last act ended.
7. In the case before us the series of acts that took place were (1) rash and negligent driving of the bus by the driver of the bus; (2) rash and negligent driving of the car by the driver of the car; (3) tie acts of both the drivers in acting negligently leading to the collision. The combined effect of all these transactions resulted in the damage to the bus arid the car and injuries to the driver of the car- All the three acts are no doubt independent actions but these acts produced the result which constituted the offences under Sections 337, 426 and 279 of the Indian Penal Code. It may be that before the collision both the drivers may be guilty of rash and negligent driving liable under Section 279 of the Indian Penal Code, but they may also be liable under that Section when the collision took place.
It has been urged before us that the offences under Section 279 of the Indian Penal Code cannot besaid to be part of the same transaction as each driver was responsible for rash and negligent driving and they were acting independently of each other. As already pointed, out this does not mean that at the time of the collision if they were driving rashly and negligently their acts were not part of one series or there was no connection between their acts. The connection is established by the result which followed. There is little doubt that for Offences under Sections 337 and 426 of the 'Indian Penal Code, the drivers of the two vehicles: could be tried together. This is also the view adopted in M. K. Baliah v. Emperor, 1931 Mad WN 556 and In re Vankayalapati Gopalarao, AIR 1956 Andhra 21.
However, it has been pointed Cut in the last mentioned case that there could not be any joint trial for an offence under Section 279 of the Indian Penal Code of the two drivers. If no collision had occurred, this view of law could not be disputed but since there has been collision the acts or series of acts committed by booth the drivers must be taken as a whole.
When we examine the factors bringing about the ultimate result in which the various acts ended for example, collision in this case, we may find in one trial without offending the law that all the acts referred to above led to and culminated in that result. Even if all these different acts and offences are separately defined in law, Section 239(d) makes the trial for such offences permissible. A connection between various different acts may sometimes be established by examining the result of operation of the acts. As has been said in Emperor v. Sherufalli Allibhoy, ILR 27 Born 135 the real and substantial test, then for determining whether several offences are connected together so as to form the same transaction depends upon whether they are so related to one another in point of purpose. Or as cause and effect, or as principal and subsidiary acts, so as to constitute one continuous action.
8. Very often it is convenient to begin at the end and examine the factors which brought out that end All those factors must be taken to be pant of the same transaction. In some cases the view has been taken that the drivers cannot be tried under Section 279 of. the Indian Penal Code along With the trial under Section 337 of the Indian Penal Code. This would be taking a very narrow view of the matter making separate trial necessary even in a case where the enquiry under Section 337 must necessarily involve the determination of the question whether the drivers were driving the vehicles rashly and negligently even up to the point of collision. This view of law has been taken by the Saurashtra High Court in Umar Bin v. State AIR 1954 San 15 and Edward Top v. State, AIR 1954 Trav-Co 4. The Andhra High Court in AIR 1956 Andhra 21 has followed the view of the Saurashtra High Court to some extent We are humbly of the opinion that it would, not be in consonance with and the natural and commonsense view of the words 'in the course of the same transaction''.
9. In our opinion, the joint trial of both the respondents was not in any way illegal. We may further observe that it was for the respondents tohave taken any objection to the joint trial if they were in any way prejudiced. Learned counsel appearing on, their side have stated, unequivocally that they have no grievance on that account. We do not find that the State is in any way adversely, affected by the joint trial. For this reason also we would hold that even if the joint trial was not legally permissible under Section 239,(d), this was an irregularity which must be taken to have been cured, and on that account we cannot order re-trial.
10. The second point that emerges for consideration is whether Shri Chiranji Lal should now be permitted by us to be examine as a witness. We have examined the record of the case and we find that no less than three opportunities had been given to the prosecution to Produce that witness and every time the prosecution failed to do so. The incident took place on die 19th of October 1957, the trial of the case started on the 28th of November, 1957, and it was on the 10th of July '1959, after about one year and 8 months that the respondents were acquitted. We do not think that this is a fit case in which we should Order the lacuna in the prosecution evidence to be filled up after such a long time.
11. As a result of the aforesaid discussion wemaintain the order of acquittal. The appeal is dismissed.