REPORTABLE  

       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)

J U D G M E N T

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

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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

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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.

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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.