In Re: Ponnuswami

Panchapakesa Ayyar, J.—This is a petition to interfere in revision with the conviction of the Petitioner u/s 304-A, Indian Penal Code and the

sentence of six months simple imprisonment awarded on him.

The facts are briefly these. The petitioner was a lorry driver. On 10th October, 1947, at about 6-45 p.m. on the road between Tambaram and

Vandalur, he was driving his lorry, M.S.P. 3163, at a fast and dangerous pace. He was taking furniture to a school. He wanted to overtake three

bullock carts heavily laden with hay, and, with that object, first swerved swiftly to the right and then quickly to the left, with the inevitable

consequence that the deceased, a man aged 30 going along the road in the opposite direction, and a bit tipsy, got knocked down and killed. Both

the lower Courts, after exhaustive discussion of the evidence, have come to the conclusion that the petitioner was certainly guilty of rash and

negligent driving, and brought about the death of the deceased by such driving, and especially the swift turn to the right and then to the left in an

attempt to overtake the three heavily laden bullock carts. I see no reason to differ from their conclusion.

The learned Counsel for the petitioner urged that the petitioner should not have been convicted as the deceased was under the influence of some

intoxicant and was walking along tipsily and had brought the accident on himself and was guilty of contributory negligence, and that if the deceased

had not been tipsy, and staggered unexpectedly two feet towards the lorry, he would not have been hit and killed. I cannot agree. Contributory

negligence, in the strict sense of the term has no place in criminal law. If the petitioner was not guilty of negligence, he would certainly not be liable

u/s 304-A, Indian Penal Code. The fact that the the victim also contributed a little by his negligence is absolutely immaterial when there is ample

proof that the petitioner had brought about the accident by his own negligence and rash driving, and attempt to overtake at that point. He could

and should have avoided the accident by his care and caution.

The road was straight at that point, as even D. W.''2''s evidence showed, and the petitioner and D. W. 2 saw the deceased tipsy and staggering

along in the opposite direction. Suppose a little child stands in the middle of the road and contributes to the accident, its negligence will be of no

avail. So too, this drunkard''s. The main thing for consideration in a criminal case, u/s 304-A, Indian Penal Code, is whether the accused in the

case has caused the death of any person by doing any rash or negligent act not amounting to culpable homicide. Once that is proved, the little

contributory negligence on the part of the victim and the accused''s good military record are irrelevant except for the purpose of sentence. Driving a

lorry in peace times rashly in the country side knocking down and killing a civilian, is not to be judged, by the same standard, as driving an

armoured car against the enemy in war and killing an enemy.

It was next urged that both the lower Courts had used the sketch of the road which was not quite correct. But their conclusions were based not

merely on a perusal of the sketch but also on a discussion of the entire evidence, including the evidence of D.W. 2. Nor was the sketch proved to

be wrong in material particulars or to have contributed to any wrong conclusion.

I, therefore, confirm the conviction of the appellant. But taking all the circum-stances into consideration, and the petitioner''s good military

record, I reduce the sentence, after hearing the learned Public Prosecutor also on the point, to the period of imprisonment already undergone

(about 21 days) and a fine of Rs. 50, or, in default, further simple imprisonment for two months. Time for payment of the fine till 11 a.m. on 15th

December, 1949. The lower Court will take steps to realise the fine only after the time fixed now has expired.