GORE BAHADUR GURUM Vs. STATE

JUDGEMENT

(1.) The applicant Gore Bahadur Gurum has been found guilty under Sec. 304-A Indian Penal Code and convicted and sentenced to undergo R. I. for six months and a fine of Rs. 1.000.00 and in default of payment of fine for a further period of six months R. I. by Mr. V. D. Keshari Magistrate 1st class, Gorakpur. The applicant went up in appeal to the Sessions Judge, Gorakhpur and the 1st Tern. Civil and Sessions Judge who heard the appeal, dismissed the appeal by his order dated 11th Sept. 1969, and upheld the conviction and sentence. The applicant has preferred this revision before this court against his conviction and sentence.

(2.) Learned counsel for the applicant pointed out that the learned Magistrate as well as the learned judge who heard the appeal were of the opinion that there was no direct evidence of any eye-witness who might have seen the actual impact of the vehicle with the deceased. Every witness according to the learned counsel for the applicant, who reached the spot, reached there after hearing the noise. Learned counsel further pointed out that the evidence so far as it relates to the fact that the applicant did not blow horn when he was backing his vehicle is also not worthy of credence the witnesses were not present just in the proximity of the spot of incident and the horn if any that might have been blown by the applicant may not have drawn their attention. Learned counsel further pointed out that the witnesses as they admit, had reached the spot on hearing the noise after the impact, therefore, they could not have been able to hear the horn when the vehicle was being backed by the applicant. Learned counsel for the applicant has stressed that the conviction of the applicant has been upheld by the lower appellate court on the basis of the statement made by the applicant under Sec. 342 of the Criminal Procedure Code. His argument is that if that statement was to be taken it should have been taken as a whole and even that statement does not go to show that the applicant was either rash or negligent so as to cause that offence for which he has been punished.

(3.) I have gone through the judgment of the learned Magistrate as well as that of the lower appellate court. It is correct to state that a woman named Mrs. Jhalahi lost her life receiving the dash or push by the military lorry which was driven at the time and date by the applicant in Nautanwa. But that by itself will not prove that the applicant was involved in any rash or negligent act. It has been observed by the lower appellate court that PW 1 Sohrat, who is the Chowkidar of some place other than the place where the incident had occurred, lives in the Qasba. He had stated that after attending the call of nature he was going that way when he heard the noise. In his cross-examination he admitted that he saw the woman lying on the ground and his attention was drawn towards it when the noise was heard. Admittedly this noise was or may be that of the lady herself or of other persons who might have cried out that an accident had happened. But he did admit that he did not actually see the impact. Jan Mohammad, PW 2, also, according to the finding of the lower appellate court did not see the impact and so is the position of P.W. 4 Suleman. The eye-witness account was, therefore, not sufficient to hold that when the impact took place and when the lady fell on the ground the applicant was in any way rashly or negligently driving the lorry. When an incident of this type occurs on a highway persons looking to the circumstance begin to say that the driver has crushed the victim but it is very difficult to say for the persons who have not seen the actual impact as to how the victim has been crushed. In the absence of the eye-witness account of the actual impact the lower appellate court tried to get some proof from the statement of the applicant made under Sec. 342 Criminal Procedure Code. The statement that has been made under Sec. 342 Criminal Procedure Code by the applicant has been stated to be a changed statement than what he stated when he was examined under Sec. 251-A of the Criminal Procedure Code. I have gone through the statement made by the applicant. In my opinion the statement under Sec. 251-A is only with reference to the questions put to the applicant but in the statement under Sec. 342 of Criminal Procedure Code he has tried to explain away the circumstances that had been brought against him. Under Sec. 251-A of Criminal Procedure Code the applicant stated that the woman was run over by his vehicle and died on the spot and in that statement under Sec. 342 he explained that his vehicle did not dash against the woman. That clearly means that he was neither rash nor negligent in backing up his vehicle and this statement was by way of explanation that the woman had died, the impact was there and she had died on the spot by impact of his lorry but he was not rash or negligent in driving. The lower appellate court has also relied upon the statement of the witnesses that the applicant did not blow horn. From the statement of the witness it appears that their attention was drawn when they heard the noise. So how could these witnesses have made a statement prior to what had happened when they heard the noise. The fact that the applicant did not blow the horn, has not been put to the applicant under Sec. 342 of the Criminal Procedure Code. If the circumstance was sought to be utilised as an evidence against the applicant this should have been put to him. The statement of the witnesses it this aspect of the matter was not sufficient. The applicant should have been given an opportunity to meet all that circumstance particularly that, which was sought to be utilised for holding the conviction. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or an act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. In my opinion from the evidence that has been brought on the record neither the negligence has been proved nor any rash act has been brought home to the applicant. From the evidence it cannot be ascertained as to what had happened at the time when the actual impact took place and the attending circumstances that the applicant did not blow horn has not been put to him, no advantage can be had from it to the prejudice of the applicant. In the circumstances the argument that has been advanced on behalf of the applicant has greater force. The guilt under Sec. 304-A of the Indian Penal Code does not appear to be brought home to the applicant. The case is not free from do but, benefit of which must be extended to the applicant.