Innasimuthu

K.M. Natarajan, J.—This revision is directed against the judgment of the learned Sessions. Judge, Pudukottai, confirming the conviction and sentence passed by the Chief Judicial Magistrate, Pudukottai, u/s 304-A, I.P.C., to undergo Rule 1 for two years and also cancellation of the driving licence for a period of five years.

The brief facts of the prosecution ease are as follows. On 23rd April, 1981 P.W. 3 loaded the lorry of the Petitioner with cholam, ragi and rice bags at Oorandipuram for transporting them to Pudukottai and he also travelled in the lorry. The Petitioner drove the lorry. The lorry reached Karambukudi at about 10 p.m. P.W. 4, the Madman loaded 25 bags of rice and cholam at Karambukudi and Thiruvanam. P.W. 3 and cleaner were seated in the cabin P.Ws. 4 and 5 sat on the load of the lorry. At about 3 p.m. the lorry ran over a heap of stones on the road and turned at Venttanyiduthi. P.W. 3 woke up at the time the lorry overturned and he sustained an injury on his leg. The cleaner died at the spot itself P.Ws. 4 and 5 also were thrown away from the load and they sustained injuries. On a complaint Ex. P 3 given by P.W. 3, a case was registered, investigated and charge-sheet was filed against the Petitioner.

P.W. 1, the Motor Vehicles Inspector, inspected the vehicle and issued the certificate Ex. P1. P.W. 2, the Medical officer, conducted the autopsy over the dead body of Mohamed Ali, the cleaner, P.Ws. 3 to 5 are the eye witnesses to the occurrence P.Ws. 4 and 5 were treated as hostile. P.W. 6 is the Investigating officer.

The Petitioner when examined u/s 313, Crl. P.C., has stated that when he was driving the lorry, be heard the sound , that the lorry turned and, at that time, the cleaner jumped from the lorry and died and P.Ws. 3 and 4 sustained injuries and that he gave the first information report to the police.

Both the Courts below have accepted the prosecution case and found the Petitioner guilty, convicted and sentenced him as stated above.

Mr. R. Santhanam, learned Counsel for the revision Petitioner, mainly contended that there is no evidence to prove either the rashness or negligence of the Petitioner in driving the vehicle, that the only eye witness P.W. 3 has admitted in his evidence that after hearing the sound he found the lorry turned and fell down, that he did not know whether the lorry came fast and that the courts below erred in applying the principle of. Res ipsa loquitur and convicting the Petitioner.

The learned Counsel further contended that the appellate court has not at all discussed the evidence and recorded the reasons for doing so, but merely observed that the trial court has arrived at a decision after carefully considering the evidence of the prosecution and dismissed the appeal and that, therefore, the judgment of the appellate court is not in compliance with the provisions of Section 384(3), Code of Criminal Procedure.

As rightly contended by the learned Counsel for the revision Petitioner, the only eye witness P.W. 3 has stated even in his chief examination that he woke up after the lorry fell down and that though be has stated in the chief examination that the lorry was driving fast, he has given a go-by to the same in his cross examination and has stated that he did not know whether the lorry came fast or not and after hearing the noise he found the lorry, fell down and somebody took him and the Petitioner from the lorry. Thus, it is clear that there is no direct evidence to prove the rashness and negligence of the Petitioner in driving the vehicle.

The only question that remains to be considered is whether the principle of res ipsa loquitor could be invoked in the circumstances of the case. The learned Counsel for the revision Petitioner relied on the decision of the Supreme Court in Syad Akbar Vs. State of Karnataka, , wherein the Supreme Court has considered the scope of application of the principle of res ipsa loquitur and enunciated the following principles.

... The primary reasons for non-application of res Ipsa loquitur as an abstract doctrine to criminal trials, are; firstly, in a criminal trial the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution ; secondly, while in civil proceedings a more preponderance of probability is sufficient to establish a fact in issue, it is not so in criminal proceedings wherein the presumption of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not negligence merely based upon an error of judgment.

The Supreme Court has further observed as follows:

In the instant case, the maxim could have no application. The circumstance of taking the bus suddenly to the extreme right of road, which was the reason given by the courts below for invoking the maxim, did not bespeak in clear and unambiguous voice, negligence on the Appellant''s part to exercise due care and control...

In the present case, the charge against the Petitioner was that he drove the lorry MDE 3913, rashly and negligently and hit against the neem tree on the northern side of the road and consequently the lorry fell down and the cleaner, who was seated along with P.W. 3, in the cabin met with his death. P.W. 1, the Motor Vehicles Inspector, has also stated in his chief examination itself that all damages found in the vehicle were caused due to hitting on the tree. Both the courts below have convicted the Petitioner on the assumption that the lorry ran over the heap of jelly on the road and fell down on the left side P.Ws. 4 and 5, who travelled in the lorry did not support the prosecution case and they were treated as hostile. It is significant to note that P.W. 3 who sat along with the deceased in the cabin only sustained simple injuries. Thus, it would probability the plea of the Petitioner that the cleaner of the lorry has jumped from the lorry when the noise was heard and the lorry fell down. In my view, the above decision relied on by the learned Counsel for the revision Petitioner is on all fours applicable to the facts of the instant case.

Mr. Jayakumar, representing the learned Public Prosecutor, relied on an unreported decision of Paul, J. in Perumal v. State,1977 Cri.P.C . 361 of , Order, dt 18th July 1979, and contended that the principle of res ipsa loquitur can be applied to the instant case also. The said principle was applied in view of the circumstances narrated in the said judgment. In the said case, one eye witness had supported the version of the prosecution and there was positive evidence that two P.T.C. buses came along the road chasing each other and one of the buses collided against the cyclist who was proceeding ahead of the buses at the time and as a result of the impact, the cyclist was caught in between the two front wheels and he was dragged to a distance of 20 ft. from the place of impact. The Motor Vehicles Inspector also noticed fresh paint scratch in the front right side bumper about 1 cm x 3 cm and 59 cm from the ground level. In those circumstances ,the learned Judge observed that the principle of res ipsa loquitur can be applied to the case.

Mr. Jayakumar also relied on another unreported decision of Paul, J. in Venkata-chalam, In re 1973 Cri. R.C. 871 of , Order, dt. 12th August. 1974, and contended that the Petitioner can be held liable on the theory of keeping a proper look out. In the case cited, the uniform testimony of three eye witnesses is that the cart was going on the eastern side of the road and the lorry which was coming in the opposite direction collided against the bullock cart. In the circumstances of the said case and the materials placed before the court, Paul, J. has observed that if the Petitioner has been keeping a proper look out he would have certainly seen the cart coming along the middle of the road and he would have swerved the lorry a wee bit to the left, i.e., towards the western side of the road, and avoided hitting the cart as the road at that place was nearly 31 feet in width. The said decision is not at all applicable to the facts of the instant case.

The Supreme Court has held in S.R. Mulani v. State of Maharastra 1968 M.L.J. (Cri.) 556 (S.C.) as follows-

The requirements of Section 304-A of the Penal Code are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash and negligent act of accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash or negligent act of the accused.

It is the evidence of the Motor Vehicles, Inspector (P.W. 1) that the vehicle could not be tested on road due to the damages in the vehicle and he also agreed with the suggestion of the defence that if the front rod spring breaks suddenly, the accident can happen. The evidence of P.W. 1 also does not rule out the possibility of the sudden breakage of the front rod spring and the accident was due to it. As rightly observed by Maharajan, J. in Kothandam, In re 1972 L.W (Cri.) 52 there could be no general presumption that a person should have driven a motor vehicle in a rash and negligent manner merely because there was an accident, and whether a person is guilty of rash and negligent driving or not, is a question of fact, and Section 304-A, I.P.C. is no exception to the Criminal Jurisprudence. In my view, there is no evidence in the present case to show that it was the rash or the negligent act of the Petitioner that caused the death of the deceased and the courts below have not approached the case with a clear understanding, and hence, interference is called for in the revision in the broad interests of justice.

In the result, the revision is allowed. The conviction and sentence imposed on the revision Petitioner are set aside and he is acquitted. The bail bond shall stand cancelled.