Himachal Pradesh High Court upholds bus driver's 304A conviction, rejects Section 81 'lesser harm' defence
Justice Rakesh Kainthla dismissed Dalel Singh's revision against concurrent convictions under Sections 279, 337 and 304A IPC, holding that swerving a bus to save one cyclist while crushing two motorcyclists cannot be sheltered by Section 81 of the Indian Penal Code.
The Himachal Pradesh High Court has dismissed a criminal revision filed by Dalel Singh, a bus driver convicted of causing the deaths of two motorcyclists at Bhatoli Chowk in 2007. Justice Rakesh Kainthla, sitting at the principal seat in Shimla, refused to disturb concurrent findings of the Chief Judicial Magistrate, Una and the Additional Sessions Judge-I, Una, and rejected the petitioner’s argument that Section 81 of the Indian Penal Code — the ‘lesser harm to avoid greater harm’ defence — protected the act of swerving the bus across the road to avoid hitting a cyclist.
The order, pronounced on 22 April 2026 after being reserved on 12 March, runs through the standard limits of revisional jurisdiction under Section 397 of the Criminal Procedure Code, applies the doctrine of necessity in Section 81 IPC to a fatal road accident, and refuses the benefit of the Probation of Offenders Act, 1958, in a Section 304A case involving two deaths.
What happened on 15 March 2007
The prosecution case was that on 15 March 2007 at about 2:15 PM, two motorcyclists — Surinder Kumar and Rohit — were riding a Bajaj motorcycle towards Bhatoli Chowk when a Tikra Coach bus coming from Una struck a cyclist, Hussan Lal (PW8). The driver swerved the bus across the road to the opposite side and collided with the motorcycle, dragging it 25 to 30 feet under the front tyres. Surinder Kumar and Rohit died at the scene; Hussan Lal sustained injuries.
Santosh Kumar (PW10), Surinder’s brother, lodged the complaint that became the FIR. SI Bhumi Chand (PW14) investigated, prepared the site plan, and seized the bus, motorcycle and cycle. Mechanical examination by HHC Sarup Lal (PW5) ruled out any defect in the vehicles. After trial, the Chief Judicial Magistrate, Una convicted the petitioner under Sections 279, 337 and 304A IPC on 3 September 2012 and sentenced him to two years’ simple imprisonment with a fine of Rs.50,000 on the 304A count, with shorter concurrent sentences on the others. The Additional Sessions Judge-I, Una dismissed the appeal on 24 January 2015. The revision before the High Court was filed thereafter.
The Section 81 argument and why it failed
The petitioner’s counsel, Mr Surya Chauhan, built his case on Section 81 of the IPC, which states that an act done without criminal intent and in good faith to prevent or avoid greater harm to person or property is not an offence. The defence narrative was that the cyclist Hussan Lal had drifted to the wrong side of the road, the bus driver had swerved to avoid him, and the collision with the motorcycle was an unintended consequence of attempting to save the cyclist. Reliance was placed on the Andhra Pradesh High Court decision in Kutcharlapati Krishnam Raju v. State of H.P., 2003 (2) APLJ 469.
Justice Kainthla rejected the defence on a simple proportionality reading of the statute. Section 81, the judge held, requires the harm caused to be lesser than the harm averted. The petitioner had crushed two persons under the tyres of the bus while attempting to save one cyclist. “Even if the plea of the accused is accepted to be correct that he was trying to save a cyclist, he caused major harm by crushing two persons under the tyres of the bus, and he cannot claim the benefit of Section 81 of the IPC,” the order records.
The judge also found that the cross-examination suggestions put to the prosecution eyewitnesses — that the bus had been swerved to save the cyclist — were themselves admissions that the petitioner was the driver at the relevant time, drawing on the Supreme Court’s ruling in Balu Sudam Khalde v. State of Maharashtra, (2023) 13 SCC 365. That conclusion neutralised the petitioner’s separate complaint that the absence of a Test Identification Parade had vitiated his identification as the driver. The accused’s own line of defence assumed he was driving.
Negligence, the rules of the road, and the dragged motorcycle
The negligence finding rested on physical evidence the trial court had already weighed. The site plan (Ext.PW14/A) placed the impact on the right side of the road; photograph Ext.P3 showed the bus had crossed the divider after striking the cycle. Rule 2 of the Rules of the Road Regulations, 1989, requires drivers to keep as close to the left as expedient and to allow opposing traffic to pass on the right. Driving on the wrong side, the judge noted, has been treated as negligence by Indian courts since Fagu Moharana v. State, AIR 1961 Orissa 71, and reaffirmed in this Court’s own rulings in State of H.P. v. Dinesh Kumar, 2008 H.L.J. 399 and State of H.P. v. Niti Raj, 2009 Cr.L.J. 1922.
Speed was inferred from the fact that the motorcycle had been dragged 25 to 30 feet beneath the bus, a marker the High Court has previously used to draw conclusions about uncontrolled speed. The judge cited State of H.P. v. Dinesh Kumar, 2008 Cr.L.J. 2024, where 74-foot skid marks were treated as evidence of high speed. The petitioner’s argument that the photographs showed the deceased under the rear tyre while witnesses spoke of the front tyre was dismissed as a misreading: the motorcycle had been dragged 30 feet, so a pillion rider would naturally have fallen at the point of impact, leaving the body at one position and the trapped motorcycle at another.
Revisional jurisdiction and concurrent findings
A substantial portion of the order is devoted to restating the well-settled limits of Section 397 CrPC. Justice Kainthla walked through Malkeet Singh Gill v. State of Chhattisgarh (2022) 8 SCC 204, State of Gujarat v. Dilipsinh Kishorsinh Rao (2023) 17 SCC 688, Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460, Kishan Rao v. Shankargouda (2018) 8 SCC 165, Bir Singh v. Mukesh Kumar (2019) 4 SCC 197, and the recent Sanjabij Tari v. Kishore S. Borcar, 2025 SCC OnLine SC 2069. The thread running through these decisions is that revisional jurisdiction is supervisory, not appellate, and that concurrent factual findings cannot be disturbed unless they are perverse, based on no evidence, or marred by jurisdictional error or palpable misreading of the record. Where two views are possible, the revisional court does not substitute its own.
The judge applied that filter to the petitioner’s grounds and found nothing perverse. Two trial-level fact-finders had concurrently held that Dalel Singh was driving the bus, that he had taken it across the divider, that the speed was high, and that Section 81 did not apply. Each finding was supported by the eyewitness testimony, the site plan, the photographs and the post-mortem reports of the deceased, Surinder Kumar (Ext.PZ) and Rohit (Ext.PY).
Probation refused, sentence affirmed
The petitioner had argued that the benefit of Section 4 of the Probation of Offenders Act, 1958, ought to have been extended given his clean record. Justice Kainthla cited the Supreme Court’s line of authority that has steadily closed off probation as a route in 304A cases. Dalbir Singh v. State of Haryana (2000) 5 SCC 82 held that road accident offences require deterrent sentencing and cannot ordinarily be treated as fit for the benevolent provisions of probation. State of Punjab v. Balwinder Singh (2012) 2 SCC 182 and State of Punjab v. Saurabh Bakshi (2015) 5 SCC 182 reiterated that view, with Saurabh Bakshi recording a now widely-quoted observation about India’s “disreputable record of road accidents” and the “nonchalant attitude among the drivers.”
Two precious lives were lost and a third person was injured, the judge wrote. On those facts, the benefit of probation could not have been extended. Two years’ simple imprisonment with a Rs.50,000 fine on the 304A count, six months and Rs.1,000 on Section 279 and six months and Rs.500 on Section 337 — all running concurrently — was not excessive.
Order
The revision was dismissed. The conviction and sentence imposed by the Trial Court and affirmed by the Appellate Court stand. Pending miscellaneous applications, if any, were also disposed of, and the record of the courts below was directed to be returned with a copy of the judgment.