BRAHAM DASSversusSTATE OF H.P.

                       [2009] 8 S.C.R. 908

                                                                   •-4
A                        BRAHAM DASS
                                V.
                          STATE OF H.P.
                 (Criminal Appeal No. 26 of 2003)
                           MAY 5, 2009
B
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]                             '.
        Penal Code, 1860 - ss. 279 and 304A - Applicability of
c - Allegation against bus driver that he started the bus while
  one of the passengers was on its roof - Passenger
  succumbing to the injuries - Acquittal by trial court -
  Conviction by High Court - On appeal, held: accused liable
  to be acquitted - Provisions of s. 279 and 304A not
                                                                  t:
D applicable in the facts of the case.
       Prosecution was initiated against the appellant-
  accused (a bus driver), uls. 279 and 304A IPC, alleging
  that he started the bus, all of a sudden, without waiting
  for a signal from the conductor and without verifying if
E
  all the passengers on the board whether had alighted.
  This resulted in injuries to one passenger, who had gone
                                                                  ~
  on the top of the bus to unload his luggage. He latter
  succumbed to the injuries. Trial court acquitted the
  appellant. High Court convicted him. Hence the present
F appeal.

        Allowing the appeal, the Court

       HELD: Section 279 IPC deals with rash driving or
G 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. The foundation
H                              908
                    BRAHAM DASS v. STATE OF H.P.                       909


         in accusations u/s. 279 IPC is not negligence. Similarly             A
  1
         in Section 304A IPC, the stress is on causing death by
         negligence or rashness. Therefore, for bringing in
         application of either Section 279 or 304A, it must be
         established that there was an element of rashness or
         negligence. Even if the prosecution version is accepted              B
         in toto, there was no evidence which led to show that any
         negligence was involved. [Paras 3 and 4] [910-G-H; 911-
         A-CJ

             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
         No. 26 of 2003.
                                                                              c
             From the Judgment & Order dated 17.7.2002 of the High
         Court of Himachal Pradesh, Shimla in Crl. Appeal No. 373 of
         1998.
   -~
                                                                              D
              Ranjit Kumar and Binu Tarnta for the Appellant.

              Naresh K. Sharma for the Respondents.

              The Judgment of the Court was delivered by
                                                                              E
               DR. ARIJIT PASAYAT, J. 1. 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, 1st Class, Nurpur,
   "
         Kangra. The appellant was the driver of a bus of the Himachal
                                                                              F
         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.
                                                                              G
         The accused without waiting for a signal from the conductor and
... ->   without verifying if all the passengers who were to board, had
         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                 H
    910         SUPREME COURT REPORTS [2009] 8 S.C.R.


A 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
B 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
c 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 g~ty of offences punishable under
  Sections 279 and 304 A IPC and sentenced to rigorous                 1.
0
  imprisonment for six mo• .ths and fine with default stipulation.

       2. In support of the appeal, learned counsel for the
  appellant submitted that there was no evidence on record to
  show any negligence. It has not been brought on record as to
E 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
F 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.

G        3. 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
H
               BRAHAM DASS v. STATE OF H.P.                     911
                  [DR. ARIJIT PASAYAT, J.)

1   which endangered human life or was likely to cause hurt or injury   A
    to any other person.

         4. 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 ml.lst
                                                                        8
    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.
                                                                        c
         5. 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.
                                                                        D
    K.K.T.                                         Appeal allowed.