JUDGMENT
H.L. Anand, J.
(1) This is an appeal against an order of acquittal made in a trial for an offence under Section 337 of the Indian Penal Code and has been filed in the following circumstances.
(2) The respondent, Kaini Lal, was tried by the Sub-divisional Magistrate, New Delhi for an offence under Section 337 of the Indian Penal Code on the allegation that on May 7, 1967 at 10.45 P.M., the respondent, was driving his car No. Mra 5618 from the lane parallel to the ‘nallah’ of the defense Colony, New Delhi so rashly and negligently as to endanger human life and thereby caused an accident with car No. Dld 33, which was being driven by Dr. Khorana, PW2, towards Lajpat Nagar from the defense Colony market which resulted in injuries and shock to Dr. Khorana, his wife, PW4 and his daughter, PW3. The respondent admitted the occurrence of the accident but denied his liability.
(3) At the trial, the prosecution examined 12 witnesses, PW1 to PW12, while one witness, DW1, was examined on behalf of the defense. PW1 is Dr. C. L. Sahani who had examined Dr. Khorana, his wife and daughter and had found minor injuries on their person. He proved his medical certificate Ex. PM. PW2 is Dr. P. L. Khorana himself while PW3 and PW4 are his daughter and wife respectively who gave their version of the accident. Dr. Khorana also proved his report Ex. PB. PW5 is Daryao Singh, the only independent witness, who claimed to be on the spot at the time of the incident. PW6 is S. Kar, a supervisor of M/s. Premnath Motors Workshop who produced a copy of the estimate, Ex. PW6/A, with regard to the repairs which was done to the car of Dr. Khorana. PW7 is Sis Ram, head constable who had recorded the message with regard to the incident and proved a copy of the report PW7/A. PW8 and PW11 is Dewan Chaman Lal, father of the respondent while PW9 is Ashok Kumar Sharma of Malhotra Automobile Engineering Company who produced estimate, Ex. PW9/A, in respect of. the repairs carried out in the other car. PW10 is Gopi Chand, A.S.I, who claimed to have gone to the spot immediately after the report and had, amongst others, prepared the site plan Ex. PWIO/A. PW12 is Mulk Raj, A.S.I., the investigating officer. DW1 is Prem Bhardwaj, a. companion of the respondent in the car when the accident took place and gave the defense version of the accident.
(4) In his statement under Section 342 of the Code of Criminal Procedure, the respondent denied the allegation that he was driving the vehicle in such a way as to endanger human life and claimed that it was Dr. Khorana’s car which was being driven at a very high speed inspite of a caution notice before the inter-section and that the respondent was driving at a normal speed and if the respondent had not acted with extra-ordinary caution and shown exemplary presence of mind, he and his friend would have been killed on the spot by the speeding car of Dr. Khorana.
(5) By the order of acquittal, the learned trial Court after examining in brief the evidence, came to the conclusion that according to Ex. Pb, the undated report of Dr. Khorana, which was said to have been given by him to the police immediately after the accident, the accident took place when Dr. Khorana had crossed the “centre” of the bridge which could not have happened if the car driven by the respondent had been coming from the lane. The learned trial Court further found that there were contradictions between the statements of Dr. Khorana, his wife and daughter as to the precise point of impact. The learned trial Court adversely commented on the fact that the case was registered after two months of the incident apparently because the police investigation immediately after the accident revealed that no case had been made out against the respondent and dispelled the theory put forward by the prosecution that the delay was attributable to the fact that the owner of the car could not be traced. This contention was found to be without substance because the learned trial Court found that, according to the evidence, the number plate of the car was with the police at all material time and there would trial Court further found contradiction in the statement of PW10, have been no difficulty in tracing the owner of the car. The learned the A.S.I., who stated in examination-in-chief that he reached the spot after receiving the information at about 11 P.M. but said in cross-examination that he reached the spot at 9.15 P.M. while the accident admittedly took place at 10.45 P.M. The learned trial Court also adversely commented on the fact that the victims of the accident had not been sent for examination to the hospital as was the normal practice. The learned trial Court further relied on the fact that there was a board before the crossing from the side from which Dr. Khorana was coming which cautioned the driver to drive dead slow and observed that both the cars should have been traveling at a cautious speed. The learned trial Court, however, concluded that in view of the “contradictions” and “omissions” referred to above, the prosecution had failed to prove its case that the respondent had been guilty of rashness and negligence and acquitted the respondent, giving him the benefit of doubt.
(6) Shri R. N. Dixit, appearing for the appellant, assailed the order of acquittal principally on the ground that it was based on a complete misreading of Ex. PB. an unreasonable magnification of minor inconsistencies in the prosecution evidence, a mere delay in the registration of the case and certain other insignificant aspects of the matter and that the learned trial Court had failed to properly appreciate the prosecution evidence in its totality in the context of the inherent characteristics of the situation as disclosed by the site plan Ex. PW10/A, which was drawn immediately after the accident.
(7) Shil D. R. Sethi, learned counsel for the respondent, on the other hand. sought to justify the order of acquittal and contended that, apart from the grounds on which it is based, it was eminently justified by the material on the record and was consistent with and fully reinforced by the inherent features of the accident as indelibly recorded even in the plan Ex. PW10/A and the damage to the two cars, to the extent indicated by the estimates. Learned counsel further urged that there was not only an inexplicable delay of two months in the registration of the case, the investigation was wholly unsatisfactory in that the intrinsic evidence of the accident such as the marks on the road and damage to the two vehicles was allowed to be obliterated. He also made an emphatic plea that the evidence on the record and the circumstances of the case, as indeed the conduct of the investigation, should be evaluated and considered keeping in view the dicta of the Supreme Court with regard to the treatment of appeals against acquittal.
(8) After hearing learned counsel for the parties, it appears to me that while it is difficult to justify the order of acquittal on the grounds on which it purports to be based, it is neverthless unsafe to convict the respondent of the offence alleged against him on the basis of the material on the record particularly in the face of such intrinsic features of the accident and inherent characteristics of the situation as can still be gathered from the site plan Ex. PW10/A and the statement of the damage to the two vehicles as disclosed by their respective estimates of repairs.
(9) The first ground on which the order of acquittal is based is the purported inconsistency found by the trial Court in Ex. Pb, the report said to have been made by Dr. Khorana to the police soon after the accident. This report, which is undated, makes out that his car was hit by another car which was coming from the side lane when he reached “the crossing of the bridge and after having just crossed the centre”. It was not disputed and is clear from Ex. PW10/A that there is an inter-section, a little before the bridge, where the road coming from Kotla to Lajpat Nagar is crossed by a lane which is parallel to the ‘nallah’ on which the bridge stands. The prosecution case is that the impact between the two vehicles took place almost at the centre of the said inter-section, that is. a little before one enters the bridge. The learned trial Court, however, read into the above quoted portion of Ex. Pb as if the point of impact was in the centre of the bridge, that is, right in the middle of the bridge but such a reading obviously is not supported by Ex. Pb which makes it very clear that the accident took place when the car reached the crossing of the bridge and when it had just crossed the centre. The reference obviously was to the centre of the crossing or the intersection and not to the centre of the bridge. It could not have been the latter. The trial Court was, therefore, unjustified in concluding that the accident could not have taken place because according to Ex. Pb it took place at a point which was in the middle of the bridge.
(10) The learned trial Court further relied on the fact that according to E.\. Pb, the crowd that had collected at the time of the accident stated that the respondent was not driving the car. a fact which Dr. Khorana contradicted in his statement in Court. I do not see how this circumstance could be of SLich a consequence as to belie his evidence or otherwise constitute an infirmity in the prosecution case particularly when it is not the claim of the defense that the respondent was not on the wheel at the material time. The trial Court has clearly sought surpport for the order of acquittal on a sheer trifling having no relevancy to the real question in controversy,
(11) The learned trial Court has next relied on a contradiction between the statements of the PWs as regards the precise point of impact in that Miss Khorana, PW3, stated that the respondent’s car hit the complainant’s car on the rear left door while the others put the point of impact at the rear mudguard of the car. Here again the learned trial Court sought support from an inocuous circumstance and ignored that it was hardly possible for an inmate of the car which may be involved in the accident to say with any degree of precision as to the point of impact obviously because being inside the vehicle such a person may not have a clear view of the accident, particularly the inmate of the car which may be hit and that too, on the rear side. The attention of such an inmate is normally directed to the incident immediately after the impact and by the vibration that it may produce. Besides, the distance between the rear door and the rear mudguard is so insignificant that in case of impact by the portion (ii) of another car it may even be difficult to comprehend.
(12) The learned trial Court then commented on the circumstance that the case was not registered till about two months of the date of the accident and although this is a circumstance which is of some importance and I would refer to it a little later, the inference that the learned trial Court thought was obvious was after all not so obvious. The learned trial Court has come to the conclusion that the obvious inference would be that the police could not find any one guilty of any offence and that is why no case was registered. This may at best be one of the possible inferences because the possibility that the police was torn between conflicting pressures from both sides could not be precluded and becomes clear from the very fact that after two months, the case was in fact registered. This is a serious matter and I would revert to it a little later. But it would be wrong to rely on this circumstance to seek re-inforcement for an order of acquittal. The delay in the registration of a case or in the course of investigation is a serious matter and may cast suspicion on the outcome of the investigation but cannot by itself prove fatal to the prosecution case. The further conclusion of the trial Court that no site plan was prepared for a period of two months is equally unjustified and the trial Court had apparently in mind Ex. PW12/A, a site plan which was prepared by the investigating officer. PW12, on July 7, 1967 but was completely oblivious of another site plan on the file which according to PW10 was prepared by him immediately after the incident by his observations and with the assistance of Dr. Khorana. This document was proved at the trial as Ex. PW10/A and is dated May 7, 1967, the date of the accident, and is signed by Pwio, and gives detailed indication with the necessary measurements. No attempt was made by. the learned trial Court to find if PW10 was not making a correct statement or that the site plan was, in fact, not prepared on the night of the accident or could not have, for some reasons, been so prepared. Nor did the learned trial Court make any effort to reconstruct the incident with the aid of this plan as indeed the other material on the record.
(13) The learned trial Court has further relied on the inconsistency in the statement of PW10, in that, in his examination-in-chief he stated that he came to the spot at 11 P.M. while in his cross-examination, he is stated to have fixed the time at 9.15 P.M. This obviously was either the result of slip of tongue or a typographical error because Pwio has clearly stated that he received information about 11 P.M. and went to the spot immediately thereafter. Ex. PW10/B which is his report on return to the police station and was recorded at 12.45 A.M. on the night between 7/8th May, 1967 confirms this fact and shows that he had just returned from the site of the accident. This inconsistency is apparently of no consequence at all and could not have been relied on for an order of acquittal. The reference by the trial Court of the failure on the part of the police to take the victims for medical examination also does not appear to be appropriate because although it was a serious accident, there was fortunately no casualty nor any serious injury. In fact Ex. Pb, the first report made by Dr. Khorana, does not talk of any injury at all but refers to the fact that the occupants of the car suffeled “severe shock”. It appears that from the point of view of any injury, the accident was not considered serious by either party at the time of the accident and there was nothing improper in that situation for the police to have ignored the formality of immediate medical examination of the victims. It was also of no significance because the occurrence was not in dispute at the trial nor would the injury on any person have given any indication as to who was responsible for the impact. The learned trial Court then rounded off the discussion with the observation that both the sides should have driven their respective vehicles “at cautious speed” and that it was “possible” that “both the cars were proceeding without due caution and care” and that in view of the various “contradictions and omissions” referred to in the judgment the prosecution evidence “cannot be taken as completely reliable” and would entitle the respondent to the benefit of doubt and consequential acquittal.
(14) It follows from the above discussion that the learned trial Court had not made any serious attempt to deal with the real question that arose for decision and has passed the order of acquittal on rather flimsy grounds, magnified almost inocuous and insignificant. inconsistencies, contradictions, omissions and circumstances. which could not possibly stand judicial scrutiny and has ignored some fundamental features of the case and substantial reasons which would nevertheless entitle the respondent to an acquittal and I would presently revert to these.
(15) It appears to me that the accident cases have certain peculiar features which distinguish them from ordinary criminal cases. In the first instance, there is an obvious sympathy of the on-lookers for the victim and there is a real danger that their evidence may be coloured by this prejudice. In the second place, it is rarely possible for a witness of ordinary intelligence and understanding to reconstruct accurately or with any degree of mathematical precision the occurrence and this is so because the crucial moment of impact takes only a split second and the witnesses who are merely passers-by and even those who may be involved in the accident, may generally become aware of the incident or the impact or their attention may be drawn to it only after the crucial moment had passed and not necessarily simultaneously with it or a little before it. Such evidence obviously needs closer scrutiny and calls for considerable judicial introspection because in an attempt to reconstruct the incident, there is the obvious tendency either to exaggerate or to provide the missing link even when there is no intention on the part of the witnesses to make a false statement. In such a situation there is an obvious tendency to portray a complete picture and provide all the details not because the witnesses or the victim could catch it within the moment in which it happened but because they have an illusion, and almost a belief that they did. The last important feature is that it is rarely that an accident involving vehicles or human body do not leave their inherent characteristics and indelible marks in the form of injuries on the person marks on the road or the street and damage to the vehicles with the aid of which it is not possible to reconstruct, with sufficient accuracy, the accident particularly where these marks, injuries or damaged portion are not subjected to any drastic change and that is why the scientific method of investigation into such cases is intended to preserve a visual representation of the accident in all its ramifications to make the task of reconstruction of the accident at the trial easier.
(16) It may be appropriate at this stage to consider the degree of rashness or negligence which is necessary to make out an offence under Section 337 of the Indian Penal Code. Section 337 runs as follows : "337.Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of cither description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both". (17) In re: J. C. May. A.I.R. 1960 Madras 50, the distinction between negligence and rashness per se on the one hand and criminal negligence and rashness on the other was suscinctly brought out thus: "INorder to render a person liable for criminal negligence there must be something more than a mere negligence; for law distinguishes between negligence which originates a civil liability and one the consequence of which is a criminal prosecution. Brett. J., said "there must be negligence so great as to satisfy a Jury that the offender had a wicked mind in the sense of being reckless or careless whether death occurred or not". But negligence does not mean, even for criminal negligence, absolute carelessness or indifference but want of such a degree of care as is required in particular circumstances. Simple lack of care as will constitute civil liability is not enough. very high degree of negligence is required to be proved before the felony is established and this may aptly be described by the epithet "reckless". (18) In Bhalachandra and another v. The State of Maharashtra, it was held by the Supreme Court that criminal negligence was the gross and culpable neglect or failure to exercise that reasonable and proper caution to guard against injury, which having regard to all the circumstances Out of which the charge has arisen, it was the imperative duty of the accused to have adopted. The conclusion of the Court was summarised in the following words : "INanother recent decision, Balachandra Waman Pathe v. State of Maharashtra, Criminal Appeal No. 62 of 1965, D.00 20-1-1967 (SC) this Court referred with approval to what was said by Straight J. in Empress of India v. Indu Beg, (1881) 2nd 3 All 776 that criminal negligence is the gross and cupable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury cither 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". (19) It may be useful to consider the rival contentions and the evidence in the light of the aforesaid principles and in the context of such of the intrinsic features of the accident as may still be available in spite of the unsatisfactory manner in which the investigation was carried out.
(20) The prosecution case is that Dr. Khorana was coming at a speed of 20/25 miles per hour while negotiating a main road at 10.45 P.M. when there was practically very little traffic and as he was near the bridge, was suddenly struck at the rear left of the car by a speedy car of the respondent which came from the lane parallel to the ‘nallah’ as a result of which Dr. Khorana’s car swerved to the left and struck the railing of the bridge at a point which was about 20 and odd paces from the point of impact and that it. was the respondent who was driving the car so rashly and negligently as to endanger human life. It is further alleged that as a result of the impact the number plate of the respondent’s car was dragged Along with the mudguard of the other car. The version of the defense on the contrary is that it was Dr. Khorana who was negotiating the road at a very high speed in spite of dead slow caution sign before the intersection, completely oblivious of the traffic that may be coming from the lane parallel to the ‘nallah’, that the respondent was driving at the normal speed and that but for the timely stoppage of the car by the respondent after a very slight impact with the car of Dr. Khorana and the presence of mind displayed by the respondent, the respondent and the other occupant of the car would have died on the spot. It was further alleged that Dr. Khorana had apparently been driving under the influence of liquor, lost control of the vehicle and struck against the railing.
(21) The question that, therefore, requires consideration is whether the material on the record would justify the conclusion that the respondent was driving his car so rashly or negligently as to endanger human life.
(22) EX. Pb which purports to be the first report of the accident by Dr. Khorana indicates that Dr. Khorana was not, as indeed, could not have been, aware of the speed at which the respondent was driving his car or as to the precise circumstances in which the impact occurred. It says that the other car was coming “at a considerable speed” but gives no further indication of it. It also does not give any detail as to the damage caused to the two vehicles or the precise point of impact between them. This omission is understandable because the impact, according to the other evidence having been at the left rear mudguard portion of the car, none of the inmates of the car which was hit could have possibly either seen or realised the speed at which the other car was being driven, the precise point of impact and the manner in which the accident took place. The report also attributes to the respondent a statement that as no body was hurt, he was going away. The report further states that Dr. Khorana, his daughter and wife “suffered severe shock” and, therefore, also excludes the possibility of Dr. Khorana suffering any shock or of any occupants of his car suffering any injuries. It, however, attributes to Daryao Singh, PW5, a statement that the other car was “coming so fast” that Dr. Khorana’s car nearly jumped from the ground and adds that “railings of the bridge were bent”. The report further makes out that as a result of the impact. Dr. Khorana lost control of the steering and his “car turned at 90°, went over the pavement and hung over the bridge”. In his statement at the trial, Dr. Khorana, however, stated that the respondent’s car was being driven at least at a speed of 35 to 40 miles per hour and that as a result of the accident, he, his wife and daughter received minor injuries. The statements of Dr. Khorana, his wife and daughter at the trial are, however, vague as to the manner in which the accident took place and contain no material which may be of any assistance in determining if the respondent was driving his vehicle rashly or negligently so as to endanger human life. Even otherwise, it is difficult to realy on the testimony of these persons not only because they are interested but because, having regard to the fact that the other car admittedly came from their left and the point of impact was at the left rear of the car near the rear mudguard, none of these persons could, in the normal course of events, have either seen or realised either the speed of that car or the manner in which the accident took place because the precise point of impact was not within the range of their normal vision. This leaves for consideration the evidence of Daryao Singh, PW5, who is the only independent witness, and the evidence of this witness has to be seen in the context of certain intrinsic circumstances as could be spelt out of plan Ex. PW10/A, said to have been made by PW10 immediately after the accident, and the estimates prepared by the repairs in respect of the two cars, being Ex. PW6/A, so far as the car of Dr. Khorana is concerned, and Ex. PW9/A, so far as the other car is concerned. According to the statement of Daryao Singh, PW5, when the car of Dr. K. Khorana reached the crossing of the bridge, the respondent’s car “came speedily and hit the rear portion of the other car” and as a result of the collusion “the bumper of that car struck with the car” of Dr. Khorana. He further makes out that Dr. Khorana’s car took a turn and struck the railing “on being hit by the car” of the respondent. The witness further claimed that Dr. Khorana was coming at “slow speed” but was unable to indicate as to what he meant by “slow speed” and expressed his inability to state the speed of the car in terms of miles. He added that the driver of both the vehicles applied brakes and at the same time stated that at the time of the collision, Dr. Khorana’s car did not stop as no brakes were applied. He correced himself to say that “the other vehicle too did not stop”. He again corrected himself and said that he was unable to say as to whether or not “the brakes were applied”. In cross-examination, he denied the defense suggestion that Dr. Khorana was driving rashly or that he lost control of the vehicle on that account. The statement of this witness appears to me to be rather vague both as to the speed with which the two cars were negotiating the road and as to the reason for the collision and gives no indication as to how in the circumstances, the respondent could be said to have been driving his car negligently or rashly. The witness also does not appear to have a correct idea as to whether the two cars applied their brakes and as to the reason why Dr. Khorana’s car did not stop until it dashed against the railing. In any event, apart from the other limitations and infirmities from which his evidence suffers, the prosecutions case that it unfolds of the respondent’s speeding car hitting Dr. Khorana’s car which was coming at a slow speed resulting in the collision and contributing, as it were, to the latter dashing against the railing appears to be inconsistence with the story that the plan Ex. PW/.10A and an analysis of the two estimates referred to above relate. According to Ex. 10/A, Dr. Khorana’s car could not stop until about 20 to 25 paces from the point of impact with the other car and that too after it turned to the extreme left and dashed against the railing with such intensity that the railing got bent. If Dr. Khorana’s car was coming at a speed of 20/25 miles per hour and was hit on the rear left side by a speeding car as is sought to be made out by the prosecution, the left rear side of Dr. Khorana’s car would have been smashed. Such an impact would in no event provide a further momentum to Dr. Khorana’s car and in that event Dr. Khorana’s car could not have taken 20/25 paces to stop or to have ever been capable of hitting the steel railing with such intensity so as to bend it and that too after the car swerved to the extreme left. The two estimates make out that the damage to the respondent’s car was negligible consisting of the removal of the number plate and minor dents on the front portion while the damage to Dr. Khorana’s car on the point which is said to be the point of impact was also not heavy. The two estimates merely talk of minor dents at the two colliding portions and the real damage to Dr. Khorana’s car was on account of dashing against the railing. It further appears from the nature of the damage to the cars that the respondent’s car could not have been speeding and even if it was, it had been brought under control with the result that the impact with Dr. Khorana’s car was not of any serious nature. The fact that Dr. Khorana’s car could not remain under control and could not stop until 20/25 paces of the impact and dashed with great velocity with the railing on the contrary shows that this had something to do with the speed with which his car was being driven. It is, therefore, not possible to arrive at the conclusion that the respondent was driving his vehicle rashly or negligently so as to be punishable under Section 337 of the Indian Penal Code. It is unnecessary in the present proceedings to find if the impact was accidental or was caused because Dr. Khorana was speeding in spite of caution notice, unmindful of the traffic that might be coming from the left lane either under the influence of liquor, as suggested by the defense, or perhaps because of the hour of the night when he was hitting the road because such an enquiry is unnecessary for the present purpose.
(23) In the circumstances it is not possible to hold that the respondent was driving his vehicle so rashly or negligently as to en danger human life and the order of acquittal appears to be fully justified.
(24) Before parting with this case, it must be pointed out that the incident took place on May 7, 1967 yet neither of the two vehicles was taken into possession nor was the case registered until July 7, 1967 with the result that direct evidence of the actual damage to the two vehicles was completely obliterated in the meanwhile. There is an indication from the file that the case was registered on the order of “superior officers”. It appears that the authorities were torn between the conflicting pressures from both sides and the investigation was apparently scotched because of the influence of one party and the case would probably not have been registered but for the counter influence of the other. It is unfortunate that the authorities charged with the duty of maintenance of law and order should be so easily susceptible to various influences which constitute the worst form of corruption because it is difficult to detect and hard to punish and must, therefore, receive unreserved condemnation.
(25) In the result, the appeal fails and is hereby dismissed.