Deepak Gupta, J.
1. This Revision Petition is directed against the judgment dated 9.9.2002 passed by the learned Sessions Judge, Shimla. By the impugned judgment the learned Sessions Judge dismissed the appeal filed by the accused on merits but reduced the sentence to 3 months. He modified the judgment of the learned trial Court whereby the accused had been convicted for committing offences punishable under Sections 279, 337 and 338 IPC and was sentenced to undergo simple imprisonment for a term of three months for the offence punishable under Section 279 IPC, to undergo rigorous imprisonment for a term of four months for the offence punishable under Section 337 IPC and to suffer rigorous imprisonment for a term of six months for the offence punishable under Section 338 IPC. All the sentences were ordered to run concurrently.
2. The prosecution case is that on 6.2.1999 at about 4 p.m. the accused Mohd. Shaffi was driving Maruti car bearing registration No. HP-02-1323 near the main bus stand, Shimla. According to the prosecution the accused was driving the said vehicle in a rash and negligent manner and thereby caused grievous hurt to the complainant PW-3 Dharam Singh and simple hurt to PW-1 Shanti Devi. After the incident the injured were treated at DDU, Hospital at Shimla and the statement of PW-3 was recorded under Section 154 Cr.P.C. On the basis of this statement FIR Ext.PW-8/A was recorded at Police Station, Sadar, Shimla.
3. In the complaint, the version of PW-3 Dharam Singh is that he along with his wife were coming from Lady-Reading hospital and were walking towards the bus stand. When he was only at a short distance from the bus stand a maruti van bearing No. HP-02-1323 came from behind at a high speed and dashed against him. He was hit on his right hand side. As a result of the vehicle striking him he fell down and thereafter the said vehicle hit one woman Shanti Devi who was ahead of him. The statement of PW-3 was recorded by PW-7 Sant Ram. According to Sant Ram they had received telephonic information that the driver of the maruti van had struck his vehicle against one man and one woman. They had been informed that the said persons had been taken to hospital and therefore he along with other police officials reached the DDU hospital where both the injured persons were got treated.
4. The vehicle driven by the accused was seized by the police on 6.2.1999 itself. After completion of investigation the petitioner was challaned. He appeared in Court and pleaded not guilty. The learned trial Court convicted and sentenced the accused as aforesaid. The appeal filed by the petitioner has been dismissed on merits. However, the sentence under Sections 337 and 338 has been reduced to 3 months simple imprisonment in each case. Hence, the present Revision Petition.
5. I have heard Sh.Sanjeev Bhushan, learned Counsel for the petitioner as well as Sh.Rajesh Mandhotra, learned Deputy Advocate General for the respondent.
6. At the outset I may state that this Court in exercise of its revisional jurisdiction under Sections 397 and 401 Cr.P.C. normally does not interfere in findings of fact. Under Section 397 the High Court can examine the record to satisfy itself about the correctness, legality and propriety of the findings of the courts below. However, at the insistence of Sh.Sanjeev Bhushan, Advocate I have gone through the entire facts of the case.
7. From the site plan Ext.PW-7/A it is apparent that the accident occurred very close to the main bus stand at Shimla. The accident took place on 6.2.1999. The complainant Dharam Singh was examined in Court on 19.6.2001 about 2 years after the incident. Therefore, there were bound to be certain minor inconsistencies in his statement. However, his statement is consistent of the fact that he and his wife were returning from lady- reading hospital and they were walking next to the railing. In the meantime the offending vehicle which was being driven at a high speed came from behind and struck against the witness injuring him on his right side as a result of which he fell down. Thereafter, the offending vehicle hit another lady. He also states that one policeman was standing near the spot who caught hold of the driver. This witness states that he made the statement Ext.PW-3/A. He states that his medical was conducted in the hospital. He has also identified the signatures on the medico legal certificate Ext.PA. He however did not support the prosecution with regard to the recovery of the vehicle in his presence. He was declared hostile and cross-examined by the police and then he admitted that whatever had been stated by him in his statement recorded under Section 154 Cr.P.C. was correct. In cross examination by the Public Prosecutor, PW-3 admitted that the vehicle in question was being driven by the accused Mohd.Shaffi and that the accused had handed over the RC, DL and other documents of the vehicle vide memo Ext.PW-3/B which is signed by this witness. He was then cross-examined at length by the accused. He admitted that the area in question is very crowded and lot of vehicles cross this area. He states that Shanti Devi was walking a couple of feet ahead him. According to him they were going to the bus stand. His wife was 2-3 ft. behind him. He states that after the hospital he went straight to his house and did not come to the bus stand. He states that he signed memo Ext.PW3/ A at about 6 p.m. He has denied the suggestion that he got injured because he got confused because of the large number of vehicles and struck against the railing and fell down. He denied the suggestion that the accused did not produce any documents before the police.
8. Shanti Devi was examined as PW-1. She states that she dropped her children at the bus stand and was going back to her office on 6th February, 1999. It was about 3.30 or 4 p.m. A car bearing No. 1323 came from opposite side. It first hit PW-3 and then hit her. The vehicle was at a high speed. She was taken in the same car to the Ripon (DDU) Hospital where she was treated. The car was being driven by the accused. She also admitted in cross examination that the place of occurrence is very crowded and there are number of vehicles at the spot. She however states that she was on the extreme edge of the road. According to her there was not too much traffic at the time of the accident and only one bus had gone towards Chhota Shimla side and the accused had come from Chhota Shimla side. She admitted the suggestion that on the side which she was walking there is an iron railings. According to her Dharam Singh was ahead of her and was going towards Chhota Shimla. She denied the suggestion that she got confused and therefore fell on the railings and suffered the injuries.
9. PW-2 Vidya Sagar conducted the mechanical examination of the offending vehicle and found the same to be in order. In cross examination he states that he had examined the vehicle near the bus stand at the place where mini buses are parked.
10. PWs-5 & 6 are the doctors who examined the injured persons. According to them the injuries on Smt. Shanti were simple injuries and one of the injury on the person of Dharam Singh was a grievous injury.
11. PW-7 is Head Constable Sant Singh. He states that he went to DDU Hospital and recorded the statement of Dharam Singh. He then went to the spot and prepared the spot plan and recorded the statement of the witnesses. The vehicle was taken into possession and investigation was done. In cross examination he states that he reached the hospital at 5.15 p.m. where both the injured persons were present. Thereafter, they went to the spot. He states that he prepared the site plan at 4.45 p.m.
12. The main grounds raised by Sh.Sanjeev Bhushan are that there are inconsistencies in the statement of the two injured persons. Whereas according to Shanti Devi she was going to the bus stand side towards Chhota Shimla and Dharam Singh was ahead of her, Dharam Singh states that he was coming from lady-reading side towards bus stand and Shanti Devi was ahead of him. In my view there is no contradiction in the statements of the witnesses. Shanti Devi was going from the bus stand towards Chhota Shimla and Dharam Singh was coming from the opposite side. They did not know each other before the accident. In a crowded place they would not be aware as to which side the other person was walking. They were both hit by the vehicle and it is because of this reason both the witnesses have stated that the other person was ahead of him/her.
13. The other argument raised by Sh.Sanjeev Bhushan is that according to PW-7 the vehicle was taken into possession at the spot and Dharam Singh also came to the spot whereas Dharam Singh denies the fact that he came to the spot after the accident. In this behalf it must be remembered that even Shanti Devi has stated that she was taken to the hospital in the offending vehicle. It is, therefore, apparent that the vehicle must have been seized in the hospital itself. The accused cannot be let off only because of the faulty investigation especially when the statement of the eye-witnesses clearly prove that the accused is guilty.
14. It is important to note that the accused denies his presence on the spot. He in fact denies the accident. According to him both the persons got confused, hit the railings and fell down. The story set up by the accused is highly improbable. It cannot be believed that two persons would get confused at the same time and hit the railings. From the line of cross examination it is clear that the injuries suffered by the injured are not denied. The vehicle was seized on the same day itself and it is apparent that the vehicle driven by the accused had hit the two injured persons.
15. The only question which remains to be decided is whether the vehicle was being driven in a rash or negligent manner or not. What is rash and negligent driving and what is criminal rashness has been the subject matter of a number of decisions.
16. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edition) Volume 34 paragraph 1 (para 3) as follows:
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.
17. In this context the following passage from Kenny's Outlines of Criminal Law, 19th Edition (1966) at page 38 may be usefully noted:
Yet a man may bring about an event without having adverted to it at all, he may not have foreseen that his actions would have this consequence and it will come to him as a surprise. The event may be harmless or harmful, if harmful, the question rises whether there is legal liability for it. In tort, (at common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realised the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lie where it falls. But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word 'negligence' denotes, and should be used only to denote, such blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages. But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence The common habit of lawyers to qualify the word 'negligence' with some moral epithet such as wicked' `gross' or `culpable' has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression in order to explain itself.
'Negligence', says the Restatement of the law of Torts published by the American Law Institute (1934) Vol. I. Section 28 'is conduct which falls below the standard established for the protection of others against unreasonable risk of harm'. It is stated in Law of Torts by Fleming at page 124 (Australian Publication 1957) that this standard of conduct is ordinarily measured by what the reasonable man of ordinary prudence would do under the circumstances. In Director of Public Prosecutions v. Camplin (1978) 2 All ER 168 it was observed by Lord Diplock that:
the 'reasonable man' was comparatively late arrival in the laws of provocation. As the law of negligence emerged in the first half of the 19th century it became the anthropomorphic embodiment of the standard of care required by law.' In order to objectify the law's abstractions like 'care' 'reasonableness' or 'foreseeability' the man of ordinary prudence was invented as a model of the standard of conduct to which all men are required to conform.
18. In Syed Akbar v. State of Kamataka : 1979CriLJ1374 , it was held that:
28. ...where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions (1937) (2) All ER 552) simple lack of care such as will constitute civil liability, is not enough; for liability under the criminal law a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied 'reckless' most nearly covers the case.
19. The Apex Court in Rathnashalvan v. State of Karnataka : 2007CriLJ1451 held as follows:
7. Section 304-A 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. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, 'rashness' consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.' In Naresh Giri v. State of M.P. (2008) 1 SCC 791, the Apex Court after considering the entire law on the subject held as follows: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 recognizing the existence of the risk and nevertheless deciding to ignore it.
20. The evidence in the present case has to be examined in the light of the aforesaid law laid down by the Apex Court.
21. In my view, both the courts below were right in holding that the injured had been bit by the vehicle in question. According to the accused himself the area in question is congested area where there is a lot of traffic and a lot of rush. This fact has been admitted by the two injured persons. From the evidence it is apparent that the vehicle struck two pedestrians one after the other. It is apparent that the vehicle was being driven at a high speed, otherwise after hitting one person the vehicle would have stopped immediately. The fact that the vehicle had hit two persons who were at a distance of about 3 ft. from each other itself show that the vehicle was being driven at a very high speed.
22. It has been urged that the speed itself may not amount negligence. This may be true. However, when a person drives a vehicle in a crowded area at a high speed then his act is not only a negligent act but is a grossly and culpably negligent act amounting to recklessness. The driver in such areas is expected to drive extremely slowly and cautiously.
23. In view of the above discussion I have no doubt in my mind that the injured suffered injuries in the accident from the vehicle being driven in a highly rash and negligent manner. Therefore, I find no merit in the petition which is rejected. In fact the learned Appellate Court has been very lenient towards the petitioner in reducing his sentence. The accused is directed to surrender and undergo the sentence imposed upon him by the learned Appellate Court.