In re : Natarajan Alias Natesan

Anantanarayanan, J.—This revision proceeding raises an interesting question of the circumstances under which rashness and negligence can

be presumed, against the driver of a motor vehicle, with regard to the scope of Section 304-A, I.P.C. The facts are that the revision petitioner,

Natarajan, alias Natesan, has been convicted by the courts below of the offence u/s 304-A, I.P.C. and the substance of this charge being that he

drove lorry MDJ 3715 on the Tindivanam-Tiruvannamalai road near mile stone 34/4 at about 3 a.m. on 12.1.1962, in such a rash and negligent

manner that he dashed it against a culvert, resulting in the capsising of the lorry, and the sudden fall to the ground of the proprietor, one Moosa

Sahib, who was then sitting on the top of lorry. This Moosa Sahib received fatal injuries, due to the fact that the iron articles with which the lorry

had been loaded fell upon him, and occasioned those injuries.

The facts are within a very brief compass, and I have to agree with learned Counsel for the revision petitioner, that, on the facts of the record,

the conviction cannot be possibly sustained. I may point out, initially itself, that there appears to be no reason why Section 304-A, I.P.C., should

be any exception to the general maxim of criminal jurisprudence. It is for the prosecution to establish the guilt of an accused person beyond

reasonable doubt, and the ingredients necessary to show that a particular offence was committed must be made out by the evidence adduced in

prosecution. There is no initial burden on the accused to prove his innocence, and certainly there is no presumption that a man drove a lorry in a

rash and negligent manner, merely because there was an accident. Section 304-A, I.P.C. is no exception to the general principle that, with regard

to offences in the Indian Penal Code, at least, apart from special statutes which might embody special presumptions, the innocence of a person has

to be assumed, till guilt is established.

There is a marked paucity of evidence in this particular case. Part of it is hearsay, in character and is not even admissible. P.W. 3, who was the

proprietor of a rice mill in this Locality, came to the scene of accident, after hearing the noise of the accident, and he extricated the revision

petitioner, who himself had been pinned underneath the lorry. This was with the help of a jack appliance, which was borrowed from another lorry.

There were iron articles that had fallen down from the vehicle and underneath them was found the body of the unfortunate victim, Moosa Sahib.

P.W. 5, one Natarajan, states that P.W. 1, the cleaner of the lorry, told him that the driver (accused) had slept and that it was on account of this

that the lorry had capsized. This is merely hearsay evidence, and, further, P.W. 1 (the-cleaner) did not corroborate this in his evidence. On the

contrary, he claimed that he was himself sleeping at that time, owing to over-work, and the prosecution treated him as a ''hostile'' witness, because

his evidence was at variance with his first report Ex. P-1. Since the evidence of P.W. 1 does not show that the revision petitioner fell asleep while

driving the lorry, and the supposed statement of P.W. 1 to P.W 5 is really hearsay, and not admissible at all, there is no residue of legal evidence,

upon which it could be presumed that the revision petitioner had been rash and negligent. The learned Sessions Judge in the criminal appeal seems

to have been aware of this particular difficulty. Me observes, ""The learned Magistrate should not have taken it for granted that P.W. 1 slated that

the appellant (here revision petitioner) was sleeping"". But, extra-ordinarily enough, immediately after this, the learned Sessions Judge seems to

assume that the appellant must have been sleeping while driving the lorry. As I pointed out, this is not based on legal evidence, and in the absence

of legal evidence, such a conclusion of fact is not warranted.

4 This apart, the learned Sessions Judge also appears to found the conviction on certain observations of Bardswell, J. in Ratnam Mudaliar v.

Emperor 1934 MWN 30 Leaving aside, for a moment, the facts of that case, the dicta on which reliance is placed1 would appear to be those of

the learned Sessions Judge disposing of the criminal appeal, and are not the observations of the learned Judge (Bardswell, J.) himself. A passage is

extracted from that appellate judgment, in which it is stated that a person driving a motor car is under a duty to control that car, that he is prima

facie guilty of negligence if the car leaves the road, and that it is for the person driving the car to explain the circumstances under which the car

came to leave the road. It is further observed that there may be circumstances exculpating the driver, but in the absence of such circumstances, the

fact that the car left the road was evidence of negligence.

I am afraid that, with great respect, to the learned Judge (Bardswell J.), this statement of the law cannot be accepted, particularly as no authority

is cited in support of such a wide proposition. Surely, whether a man is guilty of rash and negligent driving, or not, is a question of fact, depending

on the totality of the circumstances in the individual case. There could be no general presumption that the fact that a car leaves a road, is evidence

of rash and negligent driving. A motor vehicle may leave the road, and proceed on the margin, or collide against some fixed structure of the margin,

under a variety of circumstances. Some of those circumstances, certainly, may probabilise rash and negligent driving, but many other circumstances

I may not. There can be no burden on an accused to prove that he was not driving the vehicle in a rash and negligent manner, merely because the

prosecution proves the fact that the car left the road. For instance, as is the case with regard to all mechanisms, there may be innumerable

circumstances of defect not even within the knowledge of the driver of the vehicle, The road may be wet, slippery, or in some manner unsafe. The

connection between the steering mechanism and the propelling mechanism in the car, might have been broken, or put out of gear, owing to a large

variety of causes. In such a situation, the driver himself may not know why the car suddenly behaved in that manner fraught with such danger to the

driver himself and to the other occupants of the car. It is difficult to appreciate how the driver could establish or prove a fact, such as the

disconnection of a particular mechanism, of which he himself might have been genuinely unaware.

I am hence unable to hold that there is any presumption in law of rash and negligent driving, merely because the car leaves the road. In the

decision earlier referred to, on the facts of that case, the inference of rash and negligent driving would seem to be totally justified, and that is what

the Court actually observed. Hence, the single dictum of Bardswell, J. that what the learned Sessions Judge said in his appellate judgment was ""a

proper statement"" must be construed as obiter and not as laying down any new principle of law. The revision petition is accordingly allowed, since,

on the facts of the present case, it is not at all clear that the revision petitioner was guilty of rash and negligent driving, and that the fatal accident

was caused thereby, the revision petitioner is acquitted. His bail bonds will be cancelled.