In re: Balasubramani

Swamikkannu, J.—Balasubramani/revision-petitioner herein was found guilty of the offences under Ss. 304A and 338 I.P.C., and S. 116 of the Motor Vehicles Act, convicted thereunder and sentenced to undergo rigorous imprisonment for period of 9 months for the offence under S. 304 , I.P.C., and rigorous imprisonment for two months for offence under S. 388, I.P.C., and to pay a fine of Rs. 50 in default to undergo rigorous imprisonment for two weeks under S. 116 of the Motor Vehicles Act. Against the aforesaid finding of sentence, the revision-petitioner preferred C.A. No. 399/82 before the lower appellate Court. The lower appellate court also confirmed the convictions as well as the sentences imposed on the revision petitioner and the findings of the trial court, and dismissed the appeal. Aggrieved by the above decision of the lower appellate court, the accused-Balasubramani has come forward with this criminal revision case.

The prosecution case in brief is as follows:-The deceased Rethinam and P.W. 1 Varadarajan were proceeding in a scooter from Pondy Bazaar to Vauhini Studio on 29-6-81. P.W. 1 was seated in the pillion seat and Rethinam was driving the scooter. At about 6 p.m., in the evening P.W. 1 and Rethinam were driving along Kodambakkam-Arcot Road and they were proceeding from east to west along the left side of the road. At that time, the bus M.S.Q.8099 plying in route No. 12B came at a high speed in the opposite direction. The revision-petitioner was driving the bus. The bus came on the right side of the road and hit against the scooter. As a result of the impact, the scooter was thrown out. P.W. 1 as well as the deceased Rethinam sustained injuries. Rethinam died as a result of the injuries sustained on account of the accident. P.W. 1 gave Ex. P1 report to the police.

P.W. 3, the doctor treated P.W. 1 for his injuries and issued Ex. P2 wound certificate. P.W. 2 the doctor has stated in his evidence that the X-ray of the injury in the right wrist showed that there was a fracture of the radius. Therefore, P. W. 2 gave the opinion that the injury is grievous and the other two injuries are simple in nature.

The doctor who conducted autopsy over the dead body of Rethinam has given evidence as P.W. 3. P. W. 3 has found as many as 14 injuries on the person of the deceased Rethinam. Ex. P3 is the post-mortem certificate issued by P.W. 3. P.W. 3 has deposed that the deceased ought to have died on account of the head injuries, and those injuries are possible by being knocked down by a vehicle.

The Motor Vehicles Inspector who inspected the vehicle involved in the accident has given evidence as P.W. 4. Ex. P4 is the report given by P.W. 4 in respect of the examination of the bus M.S.Q. 8099. P.W. 4 Motor Vehicles Inspector has found that the front right side bumper had been bent, and the front right side body of the bus had been crushed from right and towards rear side upto the door handle of the driver''s seat. P.W. 4 has also stated that the damages are possible if the vehicle had dashed against any vehicle.

Ex. P5 is the report of the Motor Vehicles Inspector (P.W. 4) in respect of the examination of the scooter. P. W. 4 has found that the front mud guard, front shield, headlight and glass have all been damaged. There was also damage to the front foot-brake as well as handbrake. P.W. 4 has stated that there was no mechanical defect in the vehicles.

The police officer who investigated this case has given evidence as P.W. 5 Ex. P6 is the rough sketch of the scene of occurrence drawn by P.W. 5. Ex. P7 is the notice issued under S. 131 of the Motor Vehicles Act, served by P.W. 5 upon the revision-petitioner. Ex. P8 is the inquest report prepared by P.W. 5.

The revision petitioner has denied the case of the prosecution. He had examined a photographer as D.W.1. D.W.1 has stated that at the instance of the police he took a photograph of the scene place soon after the occurrence. Ex. D1 is stated to be the photograph taken by D.W.1, and the corresponding negative has been tiled as Ex. D2. The learned Magistrate who tried the case has believed the prosecution case and he has convicted the revision petitioner. As already stated, an appeal was preferred before the lower appellate court. After considering the evidence, the lower appellate court also came to the concurrent conclusion arrived at by the trial Court.

Mr. S. Satyendran, Learned Counsel for the revision-petitioner, inter alia, contends that the prosecution bad examined P.W. 1 alone as an eye-witness for the occurrence and had not examined any person belonging to the locality where the occurrence took place and further contends that the lower appellate court has not properly appreciated the evidence available on record and as such the confirmation of both the convictions as well as the sentences imposed on the revision petitioner by the lower appellate court is not correct and in accordance with law.

The point for consideration in this criminal revision case is whether there is any infirmity in the judgment of the lower appellate Court. S. 304A, I.P.C., reads as follows.

304A Causing death by negligence. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

S. 338.I.P.C., reads as follows :

Causing grievous hurt by act endangering life or personal safety of others: Whoever -causes grievous 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 either description for a term which may extend to two years or with fine which may extend to one thousand rupees, or with both.

S. 116 of the Motor Vehicles Act, 1939 reads as follows :

Driving recklessly or dangerously. Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punishable on a first conviction for the offence with imprisonment for a term which may extend to six months, or with fins which may extend to one thousand rupees, and for a subsequent offence if committed within three years of the commission of a previous similar offence with imprisonment for a term which may extend to two years, or with fine which may extend to two thousand rupees, or with both.

The provisions of S. 304A, I.P.C., seem to apply to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. I only applies to such acts as are rash or negligent and are directly the cause of death of another person It must be read along with S. 336, 337 and 338, I.P.C. All these sections are confined in their operation to acts done without any criminal intent, apart from the rashness or negligence which it their essential ingredient. The rash or negligent act mentioned in S. 304A, I.P.C, means the act which is the immediate cause of death and not any act or omission which can, at the most, be said to be a remote cause of death. In order that a person may be guilty under S. 304A, I.P.C., the rash or negligent act must be the direct or proximate cause of the death.

A person driving a motor car or bus or lorry is under a duty to control that car or bus or lorry; he is prima facie guilty of negligence if the vehicle driven by him dishes into another vehicle which is proceeding on the right path. Driving a vehicle recklessly until it comes so close to a pedestrain that it becomes impossible to save the collision cannot but be characterised as rash and negligent driving. As between a pedestrian and a driver of a motor vehicle the responsibility of the latter is greater as the duty to use care increases as he is driving the vehicle with more velocity. Ordinarily pedestrians using the road are not exempt from the duty to take care of themselves, but negligence, if any, on the part of a pedestrian cannot excuse negligence on the part of the driver of a motor car or a bus. A person who is driving a motor car, bus or lorry owes a duty to the members of the public to keep a look-out on the road and more so when approaching a pedestrian crossing where he could normally expect a pedestrian to cross the road. He should be, able to stop the vehicle when it reaches the crossing, if necessary ; in other words, he must not continue the normally high speed when-nearing a crossing. It is the duty of the driver to drive his vehicle at a speed which will not imperil the safety of others using the road. In order to impose criminal liablity on the accused, it must be found as a fact that a collision was entirely or at least mainly due to rashness or negligence on the part of the driver. It is not sufficient if it is only found that the accused was driving the vehicle at a fast speed. The driver of a vehicle will be guilty if it is proved that he drove vehicle at an excessive speed, deviating from right side of the road to the wrong side, not keeping a proper look out and putting himself in such a position as not to be able to apply the brake in time. Death of the victim should have been the direct result of a rash and negligent act of the accused and that act most have been the proximate and sufficient cause without the intervention of another''s negligence. It must have been the causa causans; it is not enough that it may have been causa sine qua non. The above important ingredients of the offence under S. 304A, I.P.C., have to be borne in mind before examining the evidence available on record so as to decide whether the accused is guilty of the offence under the said section or not.

In the instant case before us, the evidence of P.W. 1 shows clearly that when he and the deceased Rethinam were going along the road, on the scooter from west to east, on the left side of the road, the bus driven by the revision petitioner came at a fast speed from the opposite direction and hit against the scooter. The evidence on record further discloses that as a result of this occurrence Rethinam, the scooter driver, sustained serious injuries and died due to bead injuries. Ex. P3 post-mortem certificate: issued by Dr. K. Janaki, Additional Professor of Forensic Science, Madras Medical College, shows that the deceased was aged about 40 years and that he had sustained as many as 14 injuries including fracture of ribs as well as fracture of skull into two halves. P.W. 1 has also sustained injuries. The medical evidence shows that one of the injuries sustained by P.W. 1 is grievous.

The main contention of the Learned Counsel for the revision petitioner is that the prosecution had not examined any other witness apart from P.W. 1 who is also a victim of the occurrence. It is needless to mention that P.W. 1 is a competent witness to speak about the occurrence. Therefore, the testimony of P.W. 1, if it is really trustworthy, cannot be ignored merely on the ground that the other witnesses who could have been examined by the prosecution have not actually been examined. In fact, the evidence on record does not disclose that any other person actually witnessed the occurrence and that the prosecution has purposely failed to examine him as a witness. It was suggested to P.W. 1 in the course of hi& cross examination that. Rethinam scooter driver overtook an autorickshaw and he was proceeding in a careless manner along the middle of the road. It was further suggested to P.W. 1 that only Rethinam dashed the scooter against the bus. P.W. 1 has denied the above suggestion. On the contrary, P.W. 1 has stated that they were proceeding along the proper left side of the road, and only the bus instead of proceeding along the proper side of the road, came to the wrong side of the road and dashed against the scooter. Beth the courts below had given credence to the testimony of P.W. 1. There is absolutely no reason for brushing aside the evidence of the evidence of P.W. 1 regarding the occurrence in this case. Ex P6 rough sketch prepared by the investigating officer supports the oral testimony of P.W. 1. Ex. P6 rough sketch prepared by the investigating officer supports the oral testimony of P.W. 1. Ex. P6 rough sketch clearly discloses that at the time of the occurrence, the bus driven by the revision petitioner had crossed the middle of the road aid it was coming along the path which was nearer to the northern side of the road. Under the circumstances, both the Courts below are justified in holding that the evidence of the photographer examined as D.W.1 as well as the photograph Ex. D1 filed through D.W.1 cannot help the revision-petitioner. From a perusal of the aforesaid photograph one cannot actually state as to whether the bus was actually coming along the right side of the road or the left side of the road, just before the impact. Under the circumstances, we find that the prosecution has proved its case against the accused/revision petitioner beyond all reasonable doubt. Under the circumstances the confirmation of the conviction as well as the sentence by the lower appellate court on the revision petitioner herein is correct and in accordance with law. The sentence imposed on the revision-petitioner by the trial court and in turn confirmed by the lower appellate court under various charges cannot be said to be in any way excessive or severe.

There is no infirmity in the judgment of the lover appellate court. Hence the criminal revision case is dismissed.