1 2025:CGHC:59313 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 637 of 2005 Mohammad Shamim Khan, S/o. Mohd. Aaminuddin Khan, aged about 34 years, R/o. Near Anand Hotel, Samir Bhawan, P.S. Tarbahar, Distt. Bilaspur (CG) ... Appellant versus State of Chhattisgarh, PS Bodhghat, Distt. Bastar ... Respondent For appellant : Mr. Vikash Shrivastava, Adv. For Respondent : Mr. Shailesh Puria, Panel Lawyer (Hon’ble Mr. Naresh Kumar Chandravanshi, J) Judgment on Board 5 / 12 /2025 1 This criminal appeal has been preferred by appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘Cr.P.C.’) challenging the judgment of conviction and order of sentence dated 1- 8-2005 passed by learned Sessions Judge, Bastar at Jagdalpur (CG) in Sessions Case No. 154/2005, whereby the appellant/ accused has been convicted for the offence under Section 304A of the Indian Penal Code and sentenced him to undergo RI for 2 years, to pay fine of Rs. 25,000/- and in default of payment of fine, to further undergo SI for 3 months. Digitally signed by AVANISH KUMAR PATHAK Date: 2025.12.16 11:34:00 +0530 2 2 Facts of the case, in nutshell, are that, 18-10-2005 at about 8.30 pm, appellant/accused while coming from Bailadila to Bilaspur driving a bus bearing registration No. 04 E 0742 (henceforth referred to as ‘offending vehicle’), in a rash and negligent manner, dashed a little girl namely Somiya Mishra, aged about 6 years, as a result of which, she succumbed to the injuries as her head was crushed in the accident. Dehati merg intimation (Ex. P-8) was lodged in Police Station Bodhghat and FIR (Ex. P-7) was registered against the appellant/accused for the offence under Section 304 of the IPC. Inquest and Post mortem on the dead body of the deceased Somiya Mishra were conducted vide Ex. P-5 and Ex. P-6 respectively. Statements of witnesses under Section 161 of the Cr.P.C. were recorded, spot maps (Ex. P-9) was prepared. After completion of investigation, a charge sheet was filed against the appellant/accused for the offence under Section 304 of the IPC before the Judicial Magistrate First Class, Jagdalpur, who committed the case to the Sessions Judge, Jagdalpur, who conducted trial. 3 Learned trial Court framed charge under Section 304 Part-I of the IPC against the appellant/accused, who absurd his guilt and claimed trial. 4 In order to prove the guilt of appellant/accused, the prosecution examined 7 and exhibited 13 documents, statement of the accused under Section 313 of the Cr.P.C. was recorded in which, he denied all the incriminating circumstances appearing against him, pleaded innocence and false implication. He has also examined 3 witnesses in his defence. 5 Learned trial Court after appreciating the evidence adduced by the 3 prosecution, acquitted the appellant/accused of the offence under Section 304-I, IPC instead thereof, convicted him under Section 304A of the IPC and sentenced him as mentioned in opening paragraph of this judgment. Hence, this appeal. 6 Learned counsel for the appellant would submit that, as per prosecution, Sikandar Manikpuri (P.W. 1) and Shashikant Thakur (P.W. 2) are said to be eye-witnesses, but they have only stated that, the offending vehicle was being driven by the appellant/accused in high speed, they have not stated that what was the speed of the offending vehicle. Sikandar Manikpuri (P.W. 1) has also stated that, appellant was driving the offending vehicle by swaying it, but this fact does not get support from deposition of Shashikant Thakur (P.W. 2), who is said to be another eye-witness. He further submits that, since at the place of occurrence, there was huge crowd becaue of Durga Pandal, therefore, the offending bus was not in over speed, rather the deceased girl herself came before the bus. Hence, it was not in the control of the appellant to avoid the alleged accident. He further submitted that, no element of recklessness and negligence on the part of the appellant/accused has been proved by the prosecution. Hence, conviction of the appellant based on baseless statements of Sikandar Manikpuri (P.W. 1) and Shashikant Thakur (P.W. 2) deserves to be set aside. Therefore, the appeal may be allowed and the appellant may be acquitted of the aforesaid offence. 7 Per contra, learned counsel appearing for the State, while supporting the impugned judgment, opposed the argument advanced by counsel for the appellant/accused and submitted that no interference is called 4 for in the impugned judgment. 8 I have heard the arguments advanced by learned counsel for the parties and perused the material available on record including the record of the trial Court. 9 From perusal of deposition of Sikandar Manikpuri (P.W. 1) and Shashikant Thakur (P.W. 2), who are said to be eye-witnesses, Navin Mishra (P.W. 3) and Smt. Sunita Mishra (P.W. 4) who are father and mother respectively of deceased Somiya Mishra and further statement of Dr. L.L. Thakur (P.W. 5), who conducted post mortem on the body of the deceased, it is found that, deceased Somiya Mishra, aged about 6 years died on 18-10-2004 on account of head injury, which was sustained by her in the bus accident. It is also found proved that, the accident of the deceased occurred from the bus driven by the appellant/accused, which also gets support from the deposition of Vakeel Ahmad (D.W. 1), who was conductor of the offending bus and Aslam (P.W. 3), who was passenger of the said bus. Therefore, accidental death of deceased Somiya Mishra by the bus driven by the appellant, has rightly been held proved by the trial Court. 10 So far as the manner, in which, bus was being driven by the appellant at the time of accident, is concerned, to bring home the charge, it is incumbent upon prosecution to prove the fact that the appellant/accused was driving the bus in rash or negligent manner. 11 The Hon’ble Supreme Court in the case of Ravi Kapur vs. State of Rajasthan reported in (2012) 9 SCC 284, while considering the fact of rash and negligent driving in accidental cases, has observed as under:- “11. In order to examine the merit or otherwise of 5 Contentions (b) and (c) raised on behalf of the appellant, it is necessary for the Court to first and foremost examine (a) what is rash and negligent driving; and (b) whether it can be gathered from the attendant circumstances. (A) Rash and negligent driving 12. Rash and negligent driving has to be examined in the light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to "rash and negligent driving" within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words "manner so rash or negligent as to endanger human life". The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted. 13. "Negligence" means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given 6 case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing what one was ought to do can constitute negligence. 14. The court has to adopt another parameter ie. "reasonable care" in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others. 15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes – one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions 7 of Section 184 of the Act. The courts have also taken the concept of "culpable rashness" and "culpable negligence" into consideration in cases of road accidents. "Culpable rashness" is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). "Culpable negligence" is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's An Exhaustive Commentary on Motor Vehicles Act, 1988 (1st Edn., 2010).] 16. We have noticed these principles in order to examine the questions raised in the present case in their correct perspective. We may notice that certain doctrines falling in the realm of accidental civil or tortious jurisprudence, are quite applicable to the cases falling under criminal jurisprudence like the present one. 17. Now, we may refer to some judgments of this Court which would provide guidance for determinatively answering such questions. In Alister Anthony Pareira v. State of Maharashtra [(2012) 2 SCC 648] where the driver of a vehicle was driving the vehicle at a high speed at late hours 8 of the night in a drunken state and killed seven labourers sleeping on the pavement, injuring other eight, this Court dismissing the appeal, laid down the tests to determine criminal culpability on the basis of "knowledge", as follows (SCC pp. 663-64, para 41) "41. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law - in view of the provisions of IPC - the cases which fall within the last clause of Section 299 but not within clause 'Fourthly' of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC Section 304-A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description." (emphasis supplied) 18. Again, in Naresh Giri v. State of M.P. [(2008) 1 SCC 791], where a train had hit a bus being driven by the appellant at the railway crossing and the bus was badly damaged and two persons died, this Court, while altering the charges from Section 302 IPC to Section 304-A IPC, observed: (SCC pp. 794-97, paras 7-9 & 13) "7. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts 9 which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A. 8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practise such rashness or negligence which may cause the death of other. The death so caused is not the determining factor. 10 9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edn.), Vol. 34, Para 1 (p. 3), as follows: '1. General principles of the law of negligence - Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent, although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two.’ 11 * * * 13. According to the dictionary meaning 'reckless' means 'careless', regardless or heedless of the possible harmful consequences of one's acts. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognising the existence of the risk and nevertheless deciding to ignore it." 19. In Mohd. Aynuddin v. State of A.P. [(2000) 7 SCC 72], the appellant was driving a bus and while a passenger was boarding the bus, the bus was driven which resulted in the fall of the passenger and the rear wheel of the bus ran over the passenger. This Court, drawing the distinction between a rash act and a negligent act held that it was culpable rashness and criminal negligence and held as under: (SCC pp. 74-75, paras 7 & 9) "7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus, no presumption of negligence can be drawn against the driver of the bus. * * * 9. A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due 12 care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution." (B) Attendant circumstances and inference of rash and negligent driving 20. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. 13 Elements of this doctrine may be stated as: The event would not have occurred but for someone's negligence. The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event. The accused was negligent and owed a duty of care towards the victim. 21. In Thakur Singh v. State of Punjab [(2003) 9 SCC 208] the petitioner drove a bus rashly and negligently with 41 passengers and while crossing a bridge, the bus fell into the nearby canal resulting in death of all the passengers. The Court applied the doctrine of res ipsa loquitur since admittedly the petitioner was driving the bus at the relevant time and it was going over the bridge when it fell down. The Court held as under: (SCC p. 209, para 4) "4. It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts on to the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part." 22. Still, in Mohd. Aynuddin (supra), this Court has also stated the principle: (SCC p. 74, para 8) "8. The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have 14 occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer." It has also been stated that the effect of this maxim, however, depends upon the cogency of the inferences to be drawn and must, therefore, vary in each case.” 12 In the light of aforesaid principles laid down by Hon’ble Apex Court, if facts and evidence of the case in hand is examined, then, it is found that Sikandar Manikpuri (P.W. 1) is said to be eye-witness. He has stated in his deposition that, the appellant was driving the offending vehicle in high speed and negligent manner. He has also stated that the bus was swaying. This fact also gets some support from deposition of Shashikant Thakur (P.W. 2), who was also said to be present at the place of incident, but it has not been stated by them that, what was the speed of the bus. Though, the statement of Sikandar Manikpuri (P.W. 1) regarding the bus being plied by swaying, has not been supported by Shashikant Thakur (P.W. 2), but, statements of Sikandar Manikpuri (P.W.1) and Shashikant Thakur (P.W. 2) are found to be very much clear that on account of rash and negligent driving of bus by the appellant, the accident occurred. 13 Smt. Sunita Mishra (P.W. 4) is said to be eye-witness, with whom the deceased had gone to see Durga to Geedam Naka. She has also stated that the bus was driven by the appellant in high speed and uncontrolled manner, but she has also not stated that what was the speed of the bus. 14 It is the case of prosecution itself that, at the place of occurrence, idol of Goddess Durga was established, therefore, the deceased along with 15 her mother and various other persons had gone to worship / Darshan, as such, there was crowd. Smt. Sunita Mishra (P.W. 4) has stated that, the victim was standing beside the road. If the offending bus would have been driven in over speed and swaying manner, then, other persons present there might also have sustained injury, but except the deceased, no other sustained injury. Spot map (Ex. P-9) prepared by the police also shows that, the accident occurred just beside the road. Except verbal statement, no specific fact has been mentioned by the aforesaid eye-witnesses to substantiate the fact that, the appellant was driving the bus in rash and negligent manner. Only on the basis of vague statement of aforesaid witnesses, aforesaid fact cannot be held proved. From due consideration of evidence of eye-witnesses Sikandar Manikpuri (P.W. 1) and Shashikant Thakur (P.W. 2) & Smt. Sunita Mishra (P.W. 4), mother of victim and spot map (Ex. P-9) prepared by the police, it is found that, alleged accident occurred just beside the road. Defence witness Vakeel Ahmad (DW 1) and Aslam (DW 3), who were sitting in the bus, have stated that, the victim all of a sudden, rushed towards the bus, hence got dashed from gate of it, but this fact is not found to be fully reliable as Sikandar ManikpurI (P.W. 1) has specifically stated in his cross-examination that, the victim’s head got crushed from front wheel of opposite side of driver. From spot map (Ex. P-9), it appears that the accident occurred just beside the road, therefore, the deceased all of a sudden came in front of bus and hence, there was no occasion to the appellant to prevent accident. 15 In view of above, it cannot be held beyond reasonable doubt that, the accident occurred because of rash and negligent driving of the 16 offending vehicle by the appellant, therefore, the impugned judgment is not sustainable. 16 Resultantly, the appeal is allowed. The impugned judgment of conviction and order of sentence passed by the Sessions Judge is quashed/set aside. The appellant is acquitted of the offence under Section 304A of the IPC granting him benefit of doubt. 17 The appellant is reported to be on bail, his bail bonds shall remain in force for a further period of six months in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 18 Let copy of this judgment along with record of the trial Court be sent back forthwith for compliance and needful. Sd/- (Naresh Kumar Chandravanshi) JUDGE pathak