Braham Dass vs State Of H.P

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 26 OF 2003

BRAHAM DASS ... Appellant(s)

Versus

STATE OF H.P. ... Respondent(s)

JUDGMENT

Dr.ARIJIT PASAYAT, J.

Challenge in this appeal is to the judgment of a learned Single Judge of the

Himachal Pradesh High Court convicting the appellant who had been acquitted by

the learned Judicial Magistrate, Ist Class, Nurpur, Kangra. The appellant was the

driver of a bus of the Himachal Pradesh Road Transport Corporation ( in short the

'Corporation'). According to the prosecution version on 19.11.1991 while he was

driving the vehicle, the bus had stopped at a bus stop. One passenger after alighting

from the bus went to its roof top for the purpose of unloading his luggage. The

accused without waiting for a signal from the conductor and without verifying if all

the passengers who were to board, had

-2- boarded and who were to alight had alighted, all of a sudden started the bus as a

result of which the said passenger fell down and sustained injuries. He was carried

to the hospital where he succumbed. A case was registered. On complaint of

investigation, charge sheet was filed and he pleaded innocence. He was charged for

commission of offences punishable under Sections 279, 337 and 304 of the Indian

Penal Code, 1860 ( in short 'IPC'). Eight witnesses were examined to further the

prosecution version. The trial court found that there was no negligence and as a

matter of fact there was nothing on record to show that he had been asked to wait till

all passengers alighted and/or boarded the bus. The High Court reversed the

conclusion in appeal filed by the State. The basic stand of the State before the High

Court was that the accused was supposed to wait till he was given a signal by the

conductor to do so. It was noted that one of the witnesses stated that the conductor

told the driver that one of the passenger was still on the roof of the bus but the driver

started the bus. Accordingly, the appellant was found guilty of offences punishable

under Sections 279 and 304 A IPC and sentenced to rigorous imprisonment for six

months and fine with default stipulation.

In support of the appeal, learned counsel for the appellant submitted that

there was no evidence on record to

-3-

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.

In the cross-examination PW1 categorically stated that he does not know

who the driver was. It is of relevance that the conductor was not examined as a

witness. Section 279 deals rash driving or riding on a public way. A bare reading of

the provision makes it clear that it must be established that the accused was driving

any vehicle on a public way in a manner which endangered human life or was likely

to cause hurt or injury to any other person.

Obviously the foundation in accusations under Section 279 IPC is not

negligence. Similarly in Section 304 A 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

prosecution version is accepted in toto, there was no evidence led to show that any

negligence was involved.

-4-

Above being the position, the judgment of the High Court cannot be

sustained and is set aside. The accused appellant is acquitted of the charges. The

bail bonds executed to give effect to order dated 7.10.2002 shall stand discharged.

...................J. (Dr. ARIJIT PASAYAT)

....................J. ((ASOK KUMAR GANGULY) New Delhi, May 05, 2009.