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State of Rajasthan Vs. Gurubux Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Appeal No 4/1 of 1977
Judge
Reported in1983WLN(UC)418
AppellantState of Rajasthan
RespondentGurubux Singh
DispositionAppeal allowed
Cases ReferredRatansingh v. State of Punjab
Excerpt:
.....vehicles act, 1939--section 87/112 & 89/112--rash & negligent driving- child crossing road slowly--truck coming at high speed--no marks of application of brakes--held, prosecution has established that accident was caused by rash negligent driving.;the child was not coming at a fast speed but was coming slowly.;the memos of site inspection and the site plan do not contain any marks to show that the respodent had either applied brakes to avoid the accident or had tried to turn the truck on one side of the road in order to save the child. taking into consideration the circumstances referred to above, i am of the opinion that the prosecution has succeeded in establishing beyond reasonable doubt that the accident was caused on account of the rash and negligent driving of the..........was more on the right side of the road. he has further stated that there is lot of traffic on this road and children are also there the deceased had been able to cross half of the road when it was hit by the truck. he has also stated that the deceased did not suddenly come on the road but it was the truck which came suddenly and hit him.10. hussain khan (pw 2) is a police constable and he has stated that he was sitting at the shop of lalji along with ranidansingh. the truck came from the side of bar and it was being driven at a fast speed and the right wheel of the truck hit the child. during the course of cross-examination, he stated that he was able to see the truck from a distance of 50 steps. accor ding to him, the accident took place on the right side of the road. he has also stated.....
Judgment:

S.C. Agarwal, J.

1. This appeal has been filed by the State after obtaining leave to appeal under Section 378(3) of the Code of Criminal Procedure. It is directed against the judgment dated 1-3 1977 passed by the Munsif and First Class, Magistrate, Jaitaran, in criminal original case No. 24 of 1972 In the aforesaid case, the respondent Gurbux Singh was charged with offences under Sections 304A and 279 I.P.C. and Sections 87/112 of and 89/119 of the Motor Vehicles Act. The Judicial Magistrate, by her judgment dated 1-3-1977, while acquitting the respondent of the offences under Sections 304A and 279 of the Indian Penal Code, has convicted him of the offences under Section 87/112 and 89/112 of the Motor Vehicles Act and has sentenced him to a fine of Rs. 100/- on each count and in default of payment of fine, to undergo simple imprisonment for a period of ten days.

2. The case of the prosecution is that on 23 8-1971, at 5.00 p.m , the respondent was the driver of truck No. PUL 4265 and he was driving the said truck while it was going from Bar to Beawar. At Sendra, the truck of the respondent hit against a child named Rameshwar, aged 3 to 4 years, and after he was hit by the truck, the child was thrown away and he fell on the road and sustained injuries on account of which he died on 23-8-1971 at 9.00 p.m. at Amrit Kaur Hospital, Beawar. After the child had been hit, the respondent did not stop the truck and in order to prevent him from escaping with the truck, the gates of the railway level crossing situated at a distance of about 1-1/2 miles from the scene of the incident were got closed and the truck was chased by a jeep and the respondent was apprehended with the truck. The written report (Ex. P 1) about the incident was made by Mangilal (PW 1), the grandfather of the deceased, and it was handed over to Baghsingh at (PW 10), Headconstable-in-charge of police outpost, Sendra, on 23-8-1971 at 6.15 p.m. and on the basis of the said report, the first information report was recorded at police station, Raipur, on 23-8-1971 at 8.15 p.m. and a case under Sections 279 and 318, IPC, was registered. After the death of Ramswarup, the case was altered to one under Section 304A; IPC. Baghsingh conducted the investigation and prepared the memo of site inspection, Ex. P 2, and the site-plan Ex. P 3. He seized the bloodstained bushirt of the deceased vide seizure memo Ex. P 4. Ramswarup was taken in injured condition to Amrit Kaur Hospital at Beawar where his injuries were examined by Dr. Brij Behari Sharma (PW 8) on 23-1-1971 at 7 00 p.m. vide injury report Ex. P 5. Ramswarup died at Amrit Kaur Hospital at 9.25 p.m. on 23-8-1971 and the post mortem examination of the deadbody was conducted by Dr. Brij Behari Sharma on August 28, 1971 at 9.00 a.m. vide postmortem report, Ex. P 6. According to the post-mortem report, the deccased had five injuries on his person out of which two were lacerated wounds, one on the chin below the left angle of month and the other on the left occipital parietal region and there was ecchymosis of the left eye-lid; swelling on left temporal regtion and laceration of the mucosa of the left wall of the nose. According to the medical officer, death was caused on account of congestion, intracraniel heamorrhage, compression and shock. Truck No. PUL 4065 was seized vide memo Ex. P 8. The mechanical inspection of the truck was conducted by Narainsingh (PW 9) on 24-8-1971 vide report Ex P 7. After completing the investigation, the police filed a charge sheet against the respondent in the court of Judicial Magistrate, First Class, Jaitaran and the respondent was charged with offences referred to above. The respondent pleaded not guilty and claimed to be tried.

3. The prosecution, in support of its case, examined 11 witnesses. MangiIal(PW 1), Hussain Khan (PW 2), Laduram (PW 3), Ranidansingh (PW 4), Nathusingh (PW 5), Bhera (PW 6) and Mansha (PW 7) have been examined as the eye-witnesses of the occurrence. Dr. Brijbehari Sharma (PW 8) is the Medical Officer who had examined the injuries of the deceased and had also conducted the post-mortem examination on the dead body and has proved the injury report Ex. P 8 as well as the post-mortem report Ex. P 6. Narainsingh (PW 9) had conducted the mechanical examination of the truck PUL 4265 and has proved the report Ex. P 7 prepared by him. Bagh Singh (PW 10) is the Investigating Officer. Omprakash (PW 11) is the attesting witness of the memo of site inspection Ex P 2, site plan Ex. P 3 and the seizure memo Ex. P 4 of the blood-stained clothes of the deceased.

4. The respondent, in his statement recorded under Section 313 Cr. PC, denied the prosecution case and has stated that he was driving the vehicle at a speed of 20 to 25 miles per hour and that a vehicle was coming from the opposite direction and that he saw the child from a distance of ten steps and that he swerved the vehicle and tried to avoid the child. He has also stated that it was not possible to apply the brakes and in view of the shops and the poles, the vehicle could not be turned more on the side. In support of his defence, the respondent examined Dr. D.R Bhandari (DW 1) who has deposed that the injuries that ware found on the person of the deceased, as per the injury report Ex. P 6, could not be caused as a result of a direct impact of the wheel of the truck and that it was more possible that the said injuries were caused as a result of a fall.

5. The Judicial Magistrate, by her judgment dated 1-3-1977, held that from the evidence adduced by the prosecution, it was established that the uuck had hit the child while he was crossing the road and as a result of the impact the child was thrown and he sustained injuries which resulted in his death. The Judicial Magistrate has, however, observed that none of the eyewitnesses examined by the prosecution has mentioned the speed of the truck and that all of them have said that the truck was being driven at a high speed. According to the Judicial Magistrate, in the absence of any evidence to show as to what was the actual speed, only on the basis of the fact that the truck was being driven at a high speed, an inference of rashness and negligence on the part of the respondent in driving the truck could not be drawn. The Judicial Magistrate also held that the explanation given by the respondent that he was able to see the child only when he was 10 steps away from him finds support from the testimony of Bhera (PW 6) and Mansha (PW 7) who were sitting in the truck. The Judicial Magistrate has held that when the respondent saw the child, the distance between the truck and the child was so little that the accident could not be avoided by applying the brakes. The Judicial Magistrate has also found that none of the witnesses has stated that the respondent did not try to turn the vehicle from the side and that he could take it more on the side. In view of the findings aforesaid, the Judicial Magistrate held that the prosecution has failed to establish that the accident resulting in the death of the child Ramswarup was on account of the rash or negligent act of the respondent. The Judical Magistrate was, however, of the view that from the evidence, it is established that the respondent failed to stop the vehicle after the accident and did not take any steps to take the injured person to the hospital and that respondent was, therefore, guilty of the offences punishable under Section 87/112 and 89/112 of the Motor Vehicles Act. The Judicial Magistrate, while convicting the respondent of the offences under Section 87/112 and 89/112 of the Motor Vehicles Act, acquitted him of the offences under Sections 304A and 279 IPC, Hence this appeal.

6. I have heard Shri Niazuddin Khan, the learned Public Prosecutor for the State in support of the appeal and Shri A.R. Mehta, the learned Counsel for the respondent.

7. Before referring to the evidence of the eye-witnesses, it would be relevant to refer to the topography of the scene of the incident. From the site-plan Ex. P 3 and the site inspection memo Ex. P 2, it appears that the accident had taken place at Sendra market on the main road which goes from Bar to Beawar. The width of the road at the place where the accident took place is 30 feet and the road runs from west to east. The place where the accident took place is situated at a distance of ten feet from the northern side of the road and 20 feet from the southern side of the road. On both sides of the road, there are shops as well as houses. Many of these shops are tea-stalls and restaurents. There is no bend on the road and it is straight, though it is sloping towards Beawar. The moulds of the types of the vehicle were found upto a distance of 39 feet towards the western side of the road, i.e., on the Beawar side of the road and blood was found on the road on the right side of these moulds. The report of mechanical examination of the truck Ex. P 7 shows that the steering, the clutch, the foot brakes, the hand brakes and the speedometer were in working order and the condition of the engine and other gauges was also quite good.

8. The eye-witnesses that have been examined by the prosecution fall in two categories. Bhera (PW 6) and Mansha (PW 7) are person who were travelling in the truck and were sitting on the top over the driver's seat Mangilal (PW 1), Hussainkhan (PW 2), Laduram (PW 3), Ranidansingh (PW 4) and Nathusingh (PW 5) are who had witnessed the accident from the side of road.

9. Mangilal (PW 1) has stated that on the date of the incident, at about 5.30 p.m , he was standing near the shop of Jailal. At that time, his grandson Rameswar (deceased) came from the house. From the side of Bar, a truck came which was loaded with cattle and that the right wheels of the truck hit the child on the head. During the course of cross examination, Mangilal has stated that he was at a distance of 25 to 30 steps from the place where the accident took place. After the child was hit by the truck, he was thown away, and thereafter he fell, and that the truck had actually hit the child on the head. He has also stated that the truck was more on the right side of the road. He has further stated that there is lot of traffic on this road and children are also there The deceased had been able to cross half of the road when it was hit by the truck. He has also stated that the deceased did not suddenly come on the road but it was the truck which came suddenly and hit him.

10. Hussain Khan (PW 2) is a police constable and he has stated that he was sitting at the shop of Lalji along with Ranidansingh. The truck came from the side of Bar and it was being driven at a fast speed and the right wheel of the truck hit the child. During the course of cross-examination, he stated that he was able to see the truck from a distance of 50 steps. Accor ding to him, the accident took place on the right side of the road. He has also stated that there is lot of traffic on this road and a board indicating a speed limit of 20 miles per hour has been placed on the road. He has expressed his inability to state as to what was the speed of the track. He has also stated that no vehicle was coming from the opposite direction and that the road was clear. He has denied that the child had come suddenly on the road. He has also stated that the children cross the road frequently.

11. Laduram (PW 3) has stated that the he was talking to his father in the Sendra market and he saw the truck coming from the direction of Bar and hitting the child. He has stated that the child was coming towards the market from his house and the truck was coming at a fast speed and the light wheel of the truck hit the child. According to him, the accident took place on account of the fault of the driver of the truck. He has stated that the place where the accident took place was at a distance of 150 to 200 feet from where he was standing.

12. Ranidansingh (PW 4) is a police constable and he has stated that at about 5.00 p.m., on the date on the incident, he was at a hotel at Sendra and he saw a truck coming at a fast speed, and the front wheel of the truck hit the child when he came on the side of the road. During the course of cross-examination, he has stated that the child was coming slowly. He says that the hotels fall on the right side of the road while going from Bar to Beawar and that he was also sitting on the right side of the road and the wheel of the right side of the truck had hit the child. He has further stated that the road is quite wide and there is no turn on the road. According to him the place where the incident took place is visible from a distance of 500 to 600 steps. He has stated that the truck was coming at a very fast speed but he was not able to give the estimate of the speed. In answer to the question put by the court, he said that at the time when the accident took place, he was having his tea in the hotel and his face was towards Beawar and that two to four other persons were sitting there and their attention was diverted when the child raised a cry. He has also stated that the child was coming slowly and no other truck was standing on the road.

13. Nathusingh (PW 5) has stated that at about 5.00 p.m , he had seen a truck coming from the side of Bar and going to Beawar and it hit the child in front of the shop of Lalji. He has stated that the child was coming from the left and proceeding towards right, i.e., from North to South and was crossing the road. The front wheel of the truck hit him on the head. During the course of cross-examination, he has stated that the child was coming from his house and that he had crossed the whole of the road and when he was on the right side of the road, he was hit by the truck. He has also stated that he was standing on the right side of the road and was talking. He has further stated that the vehicle was coming at a very fast speed, but he was not able to say as to what was the speed because he is not literate. He has also stated that he did not hear the sound of any horn. He has further stated that the place where the incident took place is market of Sendra and that time, the market was open and public move about at that place and a lot of vehicles and number of trucks also pass on the toad. He has also stated that the road is so wide that two vehicles can pass.

14. Bhera (PW 6) has stated that he had purchased 13 bullocks at Loonkaransar and be had hired the truck No. PUL 4265 for carrying the bullocks to Mawali. He has stated that he was travelling in the truck along with the bullocks and that Mansha, who had jointly purchased the bullocks, was also with him on the truck and that he and Mansha were both sitting on the top above the driver's seat. He has also stated that they reached Sendra at about 5.30 p.m. and at a distance of about 60 steps from where the accident took place, he saw a three to four years old child on the right side of the road. According to him, since the truck was going at a fast speed, it hit the child and the right front wheel of the truck hit the child. He has also stated that even after the accident, the respondent did not stop the truck even though he and Mansha had asked him to do so by knocking at the side of the truck. He has also stated that the truck was being driven at such a fast speed that one of the bullocks in the truck had also fallen. He has also stated that while the truck was passing through the market, the respondent did not reduce the speed of the truck. During the course of cross-examination, he stated that at the time when the accident took place, the child was on the road and after being hit by the truck, he was thrown away at a slight distance. He has also stated that the speed of the truck was so fast that bullocks in the truck were being thrown from one side of the truck to the other and one of the bullocks had fallen inside the truck.

15. Mansha (PW 7) was accompanying Bhera and he was also sitting on the top of the truck over the driver's seat. He also stated that when the truck reached Sendra, he saw a child at a distance of 60 to 70 feet on the road and the said child was hit by the truck. After hitting the child, the respondent did not stop the truck and on account of the fast speed of the truck, one bullock in the truck had also fallen. During the course of crossexamination, he stated that when he saw the child for the first time, he was walking on the road and at that time, he was on the right side of the road. He has also stated that soon after he saw the child, the accident took place and he could not say that after he had seen the child, the child had come on the middle of the road and was hit by the truck.

16. From the aforesaid evidence, that has been produced by the, prosecution, it appears that the place where the accident took place, there is a market and at that time the market was open and that there were shops on both the side of the road and there is a lot of traffic on the road. The evidence also shows that the road is straight and one can see the place of the accident from a distance of 500 to 600 'Pawandas' (steps). It has also come in the evidence that near the place of accident a board has been placed on the road indicating the maximum speed of 20 miles per hour. According to the evidence of the witnesses, at the time when the incident took place, the child was on the right side of road and the right front wheel of the truck had hit the child and as a result of the impact he was thrown and he fell down on the right side of the road. As regards the speed of the truck, all the witnesses have stated that the truck was being driven at a very fast speed but they have been unable to give an estimate of the said speed. The evidence of Bhera, however, shows that even after reaching the Sendra market the respondent did not reduce the speed of the truck and he continued to drive at the same speed. The evidence of Bhera and Mansha also shows that the truck was being driven at such a fast speed that the bullocks in the truck were being thrown from one side of the truck to the other and one bullock had also fallen in the truck.

17. As regards the offence of rash and negligent driving, the law is well settled that merely because the vehicle was being driven at a fast speed would, by itself, not justify the inference that the driver was driving the vehicle rashly and negligently. The speed of the vehicle is one of the factors which has to be taken into consideration for determining as to whether it was being driven rashly or negligently. The other factors which are of relevance are: the width of the road; the density of the traffic; the condition of visibility; the efforts made by the driver to avoid the accident. In the present case, although the prosecution witnesses have not given an estimate of the speed at which the truck was being driven at the time of the accident but they do say that the vehicle was being driven at a very high speed. Since the accident took place in the area of the Sendra market where there were shops and the market was open at that time, it was expected that the respondent would reduce the speed of the vehicle while approaching the market area. But from the evidence of Bhera (PW 6), it appears that the respondent did not do so and continued to maintain the same speed even when he passed through the Sendra market. From the evidence of Nathusingh (PW 5), it further appears that the respondent did not use the horn before the accident took place. Further more, there is no bend on the road and according to Ranidansingh (PW 4), the place of accident was visible from a distance of 500 to 600 feet on the road. At the time the accident took place, the child was crossing the road from the left side and had come on the middle of the road towards the right side of the road. The evidence also shosw that the child was not coming at a fast speed but was coming slowly. This would mean that the respondent could have seen the child crossing the road from a distance and if the truck had not been driven at a fast speed, the respondent would have been in a position to avoid the accident.

18. The case of the respondent is that when he saw the child, he was at a distance of only ten steps from the vehicle. But Bhera and Mansha, who were sitting on the truck, have both stated that they were able to see the child when it was at a distance of 60 to 70 feet from the truck. If Bhera and Mansha who were sitting on the top of the truck above the driver's seat were able to see the child when it was at a distance of 60 to 70 feet from the truck, there of no reason why the respondent was not able to see the child when it was ai a distance of 60 to 70 feet from the truck. In the circumstances it is not possible to accept the explanation of the respondent that when he saw the child it was only at a distance of ten steps from the truck. Even if the aforesaid explanation of the respondent is accepted, it would only show that the respondent was driving the truck rashly and negligently and his attention was not on the road in front of him and that he was driving at a speed that he was not able to avoid the accident after seeing the child. In this connection, it may also be observed that the memo of site inspection and the site plan do not contain any marks to show that the respondent had either applied bakes to avoid the accident or had tried to turn the truck on one side of the road in order to save the child. Taking into consideration the circumstances referred to above, I am of the opinion that the prosecution has succeeded in establishing beyond reasonable doubt that the accident was caused on account of the rash and negligent driving of the truck by the respondent.

19. The Judicial Magistrate has discarded the prosecution case and has acquitted the respondent of the offence under Sections 304A and 279 IPC on the view that none of the witnesses has given the precise idea of the speed at which the truck was being driven and have merely stated that it was being driven at a fast speed and further that the evidence of Bhera (PW 6) and Mansha (P W 7) lends support to the explanation given by the respondent that at the time when the respondent saw the child for the first time on the road, the distance of the child was so little that the accident could not be avoided by applying the brakes. In my opinion, the aforesaid reasons given by the Judicial Magistrate cannot be upheld. It is true that the witnesses have not given the precise idea of the speed and it is also true that high speed of a motor vehicle does not by itself prove rashness or negligence on the part of the driver. But in the present case, the evidence adduced by the prosecution establishes that apart from the fact that at the time of the accident the respondent was driving the truck at a high speed, there are other circumstances to indicate that the respondent did not take proper care while driving the vehicle through Sendra market where the accident took place, namely, the respondent did not slow down the vehicle when he reached Sendra market and further, even though he could have seen the child from quite some distance, he did not take steps to avoid the accident by applying brakes or turning the vehicle on one side and he also did not use the horn. In this regard it may also be mentioned that the Judicial Magistrate has not considered the evidence of Mangilal (PW 1), Hussain Khan (PW 2), Ladu Ram (PW 3), Ranidansingh (PW 4) and Nathusingh (PW 5). The evidence of Bhera (PW 6) and Mansha (PW 7) referred to by the Judicial Magistrate for the purpose of accepying the explanation of the respondent, has not been, properly read by her. The evidence of these witnesses, instead of lending support to the explanation of the respondent, render it unacceptable and show that the accident was caused on account of the rash and negligent driving of the truck by the respondent. In view of the aforesaid circumstances, the finding that has been recorded by the Judicial Magistrate for acquitting the respondent of the offence under Sections 304A and 279 IPC cannot but be regarded as unreasonable and perverse, and the order of acquittal passed by the Judicial Magistrate cannot be maintained. In my opinion, therefore the appeal must be allowed and the acquittal of the respondent for the offences under Sections 304A and 279 IPC must be set aside and he should be convicted for the said offences.

20. Shri Mehta, learned Counsel for the respondent has submitted that the accident took place in the year 1971 and more than 12 years have elapsed and that instead of sentencing the respondent to a term of imprisonment, he may be released on probation. It is true that a long period has elapsed since the incident took place. But at the same time, it cannot also be ignored that the induction on the roads of heavy duty vehicles is acquiring a menacing reputation and in our current conditions, the law under Section 304A IPC must have due regard to the fatel frequency of rash driving of heavy duly vehicles and of speeding menaces Ratansingh v. State of Punjab 1919 SCC (Cr.) 17. In the present case, the respondent by his rash and negligent act has nipped in the bud the life of a young child. In my opinion, this is not a fit case in which the respondent may be released on probation.

20. In the result, the appeal is allowed. The acquittal of the respondens for the offences under Sections 304A and 279 IPC is set aside and the respondent is convicted of the said offences. In respect of the offence under Section 304A IPC, he is sentenced to rigorous imprisonment for a period of one year and to pay a fine of Rs. 1000/- (rupees one thousand only). In the event of default in payment of fine, he shall undergo rigorous imprisonment for a further period of three months. No separate sentence is being awarded to the respondent in respect of the offence under Section 279 IPC.


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