S. Kalidas vs The State

Narasimham, C.J.—On the 23rd January 1958 at about 9-40 P.M. there was a head on collision between 10 Down Janata Express (Hereinafter referred to as the Janata) and 48 Up Passenger (Hereinafter referred to as the Passenger) at Narasimhapura Railway Station in consequence of which three passengers were killed and several others we injured-some seriously. In connection with this accident the Assistant Station Master on duty at that time namely, Petitioner Kalidas and the Pointsman in-charge of Down Points, namely, Petitioner Satyanarayana were placed on trial for offences u/s 101, Indian Railways Act and 304-A, Indian Penal Code in the Court of the Sub-divisional Magistrate, Berhampur. The learned Magistrate held the two Petitioners guilty of both the Aforesaid offences and sentenced Kalidas to six months rigorous imprisonment anti a fine of Rs. 200/- Satyarayana to three months rigorous imprisonment and a fine of Rs. 100/-. On appeal the learned Additional sessions Judge of Berhampur, while maintaining the conviction of both the Petitioners reduced the sentence passed on Kalidas to three months illujrisonment and a fine of Rs. 100/-.

Narasimhapura is a newly opened non-interlocked railway station between Chatterer and Jaganuathapuram railway stations on the South Eastern Railway. Route-locking is not provided at the station, but only padlocks are supplied to the station staff. The station was not then meant for the regular halt of passenger trains. There are only two railway lines at the station, namely the main line and the loop line. The following sketch map will give an idea of the platform, the station house, the signal cabin and the distances of the various relevant places which have a direct bearing on this case.

It would appear that the down point is at a distance of about 1280 feet from the station house. On account of the curvature of the line, the light indicator at the down point is not directly able if one statlds on the platform in front of the station house. But according to Mr. J.W. Ungur (p.w. 32) the Traffic Safety Inspector at Khurda Road, if one walks about 73 steps towards the down side on the platform the indicator will be visible. Again, though the engine standing on the main line at point ''B'' may be visible to a person standing at the down point ''A'' nevertheless, on account of the distance-about 820 feet-and the curved nature of the railway line he would not be able to clearly notice whether it was standing on the main line or the loop line, unless he walks a few steps towards'' B'' to ascertain this fact.

At the time of the accident the station staff consisted of the Station Master (P.W. 1) two Assistant Station Masters, namely Kalidas and R.S. Rao (P.W. 19) three points men namely Satyanarayana, Ramanayya (p.w. 30) and Balaji (p.w. 29) and a Jamadar named Mohurrum Khan (p.w. 26). Kalidas was the Assistant Station Master on duty at that time. Satyanarayan a was the Points man in-charge of the Down-Points, Ramanayya was the Pointsman in-charge of the Up-points, and Balaji was the Centre-Pointsman. Jamadar Mohurrum Khan''s main duty was to give the signals from the signal box under the directions of the Assistant Station Master-in-Charge. The signal box as will be seen from the sketch map is very close to the station house. As in all railway stations, the quarters of the staff are close to the station.

It will be useful at this stage to explain the distinction between ''facing points'' and ''trailing points''. The points are primarily intended to enable a train to be transferred from one line to another. The points are termed facing points when they are approached in the direction in which the movement of the points will turn the train from one track to another. When approached in the opposite direction, the points are termed trailing points-see Subsidiary Rule 37B and the diagram bellow:

a-/

b-/

y-/

x-/

Note. Points a and b would be facing and point c would be trailing for a train proceeding from X to Y; whereas for a train proceeding from Y to X, point c would be facing and b and a would be trailing.

The setting of facing points is considered more important than the setting of trailing points especially for passenger trains and while the Assistant Station Master-in-Charge is required to devote his personal attention to the setting, clamping and locking of these points and to retain the key in his personal custody, the setting of the trailing points is left to be done by the points men. There are light indicators at the Up and Down points which are automatic and they are primarily intended to indicate to the Driver of the approaching train coming at night time, the line in which the train is intended to be received. If the light indicator shows green light, the Driver of the train knows that the train would be received on the loop line, whereas if it shows white light he knows that it would be received on the main line. Apart from this indication to the Driver of the approaching train, the indicator also serve a useful purpose for the Assistant Station Master-in-charge also. Some minutes necessarily elapse between he setting, clamping and locking of the facing points under the personal supervision of the Assistant Station Master and his return to the station house because the distance between the two places is more than 1200 feet. After returning, he waits for the approach of the train to the station and then gives directions to the Jamadar for lowering the signals. Before lowering the signals however he is further required to satisfy himself that all the points have been properly set. For that purpose, it is not necessary for him to again go to the point, but if he looks at the light indicator from the platform itself he can know, from the colour of the light indicator whether the point which he had set a few minutes earlier, had been tampered with or not during that interval. The Rules require that after thus satisfying himself about the correct setting of the points held give order of to the Jamadar to lower the signals for admitting the approaching train.

The duties of the station staff when two passenger trains coming from the opposite directions are required to cross at the station may be gathered from Subsidiary Rules 37P. 510, and 51E which are quoted below:

37 P-Locking of Points:

(1) All facing points over which any train will pass must be correctly set and looked before the signals are taken ''Off'' to allow the train to pass.

(2) When the station master of a station when signals and points are not interlocked gives the ''line clear'' for any train, he must himself, except where exempted by a special written order from the Transportation Manager, lock all facing points which are to be passed over by it.

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(3) When permission to approach has been given to two trains to approach a station on single line from opposite directions, the station master must decide the train which is to be received first and the line on which it is to be received.

(4) He must lock the facing points in favour of and set the outermost trailing points against the first train at non-interlocked stations and at interlocked stations, where interlocking permits this being done. (The working instructions of an interlocked station will show if interlocking permits the setting of trailing points to conform to this Rule).

The main intention of the Rule is to prevent a train against signals over shooting and colliding with the train which is being received on signals.

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51C. A points man must exhibit danger signals to stop a train from entering a wrong line.

51E. Points men are to examine all trains as they pass and to show red signal to the Driver if anything is noticed which may endager the safety of the train.

In addition to these Rules supplementary instruction are given in the working Order Book (ext. 1) relating to Narasingapura Railway Station, issued by the Assistant Operating Superintendent. I would, in particular, quote instructions (C) relating to Reception and Despatch of Passenger trains at this station.

(C)...For the reception of passenger trains the Station Master will be personally responsible for the locking of facing points as laid down in Section R.I. 337 A.

It has been proved by the Station Master (P.W. 1) that the instructions contained in the Working Order Book were explained to the Station staff, including Kalidas who gave a certificate to the effect that he understood the same. From the evidence of P.W. 1 it is also clear that there is a Subsidiary Rule to the effect that two non stopping trains are expected to cross at Narasimhapura, the train which is expected to arrive first should be received on the loop line and the train which is expected to arrive later should be received on the main line. The then District Traffic Superintendent (P. W. 22) has also, in his deposition, corroborated the Station Master (P.W. 1) in this respect.

The following acts are required to be dones one after another, by the Station staff, when two trains are expected to cross each other at Narasimhapura Railway Station.

(1) The Assistant Station Master-in-Charge must give the ''line clear'' signal to the preceding Station and also receive the line clear signal from the succeeding station. As pointed out in Awadh Behari Sharma Vs. State of Madhya Pradesh, the giving of line clear signal does not mean that the station area is clear for the reception of the train, but it is only an indication to he Station Master of the preceding station that there is no obstruction on the track between the preceding station and the receiving station. For the purpose of admitting trains to the station platform further steps are required to be taken as given below.

(ii) Next the station master must decide which train should be received first and the line on which each of the trains should be received, following the usual rule that the train which arrives earlier should be received on the loop line and the train which arrives later should be received on the main line.

(iii) He must personally go to the facing point of the approaching train, set if for the line on which it is to be received, get the clamps properly set and locked in his presence, keep the key in his custody, and then return to the Station house. He may however handover the key of the trailing point to the Points man in-Charge with a direction to get the trailing point set for the train to leave the Station and proceed towards the next Station.

(iv) When the incoming train is in sight he must, after satisfying himself that all the points have been properly set, give a direction to the Jamadar to lower the signals. If the Jamadar is not available, he may lower the signal himself.

(v) When the train crosses the points, the Points man in charge should show green lights or green flag, according as it is night time or daytime, so as to make it clear to the Driver that there is no obstruction to the passing of the train over the line intended for it. This responsibility is cast on the Points man because, even after the points have been correctly set and the signals have also been properly given, something unforeseen may happen and there may be apprehension of danger. In such a case, the Points man can stop the train by showing a red signal (See rule 51C and 51E).

It will thus be seen that the Station Master-in-charge has personal responsibility in respect of (1) deciding on the line on which the train is to be received (2) the fixing of the facing points and (3) the lowering of the signals.

It is admitted by all concerned that the Passenger was received on the main line though it arrived first. The special reasons why Kalidas received it on the main line will be discussed later. But after having decided to admit the Passenger on the mainline, it was clearly his duty to fix the Down facing point that the Janata may be received on the loop line. But when the Driver of the Janata (p.w. 5) approached the Station the light indicator showed white light which meant that the train was expected to halt on the main line. The pointsman (Satyanarayana) was standing at the Down point holding a green light. The Driver had reduced the speed to about 10 miles per hour from the outer signal itself, but as he could not anticipate that the Passenger would also be standing on the main line he proceeded at the same speed and noticed the Engine of the Passenger only when it was at a distance of about 20 to 25 yards. He then practically applied the brakes but he could not top the Engine before it collided with the Engine of the Passenger.

Immediately after the accident the Guard of the Janata (P.W. 16) went up to the Down paint, found the point set clamped and locked for he main line, put a person in-charge of it so that it may not be tampered with, and took other necessary steps. The Station Master (P.W. 1) who was then off duty was informed and he ran to the spot and gave information to the authorities concerned and took possession of the key of the Down point padlock from the Petitioner Satyanarayana.

Before the commencement of the trial there were three enquiries. The earliest was that of Mr. J.W. Ungur (P.W. 32) who was then the Traffic Safety Inspector at Khurda load. He was the first to reach the spot at about 1. 44 A.M. on the 24th. January 1958 and he recorded the statements of witness a few hours later. The enquiry was by the Government Inspector of Railways on the 24/25th. January, and thereafter there was the usual Police investigation. The statements made by the material witness before Mr. Ungur should be given very great importance because he was the first to record these statements a few hours after the accident, and by that time though Kalidas''s father who was an experienced railway official was at Narasimhapura to give advice to his son who was in sore distress, the other Railway witness namely the Points man had neither the time nor the opportunity to concoct a story.

It is well proved by the evidence of the (P.W. 1 and P.W. 26) that prior to the receipt of intimation from the Controller about the crossing of the two trains at Narasimhapura, both the Down and Up points were already set for the main line because ordinarily the Station staff expect the trains to pass through the station on the main line without halting. Later on however, a message was received from the Controller that the Janata and the Passenger would both cross at Narasimhapura. The two Stations on either side were Chatrapur on the Up side and Jaganathpuram on the Down side. Kalidas gave the line clear at 2053 to Jaganathpuram for the Janata and at 20.57 to Chatrapur for the Passenger. Obviously he expected the Janata to arrive first and the Passenger a little later. But as a matter of fact due to detention at Berhampore the arrival of Janata was delayed the Passenger came first, was admitted on the main line. It is also not challenged and well proved by the evidence of many respectable persons that the Down points were set for the main line when the Janata approached Narasimhapura Station at a speed of about 10 miles per hour. Thus, there can be no doubt that the accident was due to the gross negligence of some members of the Station staff in consequence of which though the Passenger had been received and was standing on the main line, signal was given and the Down points were set for the main line, for the Janata also, thereby bringing about a collision of the two trains on the mainline. If the Down point had been set for the loop line, the accident would not have happened. The crucial question is which member of the staff was responsible for this serious mistake.

There are two conflicting versions given by the two Petitioners as to what happened during that fatal night. The Down Pointsman (Satyanarayana) stated that he was instructed by Kalidas first to set the Down points for the loop line, then he immediately changed his orders, and asked him to set it for the main line and that he merely obeyed the order of his superior officer. He further stated that Kalidas did not personally go to the Down point to see whether it was property set. Kalidas, however, put the entire blame on Satyanarayan saying that he personally walked up to the Down facing point, got it set and locked for the loop line, returned to the station house with the key in his coat pocket but kept the coat on a chair in his office room. Just before arrival of the Passenger he had a violent quarrel with the Up Points man Ramanayya (P.W. 30) and he had actually suspended him from duty and sent the Centre Points man Balaji (P.W. 29) to take charge of the Up-point. He suspected that during his temporary absence Ramanayya stole his coat, removed the key, went to the Down point persuaded Satyanarayana to change the point from the loop line to the main line, and thus brought about the accident.

Both the Courts have rightly disbelieved the story put forward by Kalidas as fantastic. It is difficult to believe that at about 9-30 P.M. on a cold and chilly (as deposed to by P.W. 19)January night he could obligingly leave his coat containing the key on his chair in the office room and then go out to see to the lowering of the signals. It is also difficult to believe that the suspended Pointsman, Ramanayya would be so resourceful as to steal the coat just at that time, walk across to the Down facing point, persuaded Satyanarayana (who had no enemity with Kalidas) to change the point from the loop line to the main line, knowing that the Passenger was already standing on the main line. There is no doubt that Kalidas and Ramnayya bad a violent quarrel shortly before the arrival of the train. But however anxious Ramnayya may be to put the Assistant Station Master into trouble it is unlikely that be could be so diabolical as to arrange a ''head-on'' collision of two trains, knowing fully well that the persons who would primarily suffer would be innocent passengers. It is also inexplicable as to why Satyanarayana should have agreed to change the point at the instance of Ramnayya because, under the Rules, he was to receive orders only from the Station Master and not from anyone else. Moreover Satyanarayana had no special reason to collude with Ramnayya in putting Kalidas to trouble.

Realising these difficulties an ingenuous argument was advanced that Ramnayya''s primary aim was to create the situation for an accident and avert it at the last moment, so that Kalidas may get into trouble, but no harm will result to any other person. In support of this argument, reliance was placed on the following answer given by Ramanayya (P.W. 30) in cross examination:

Even an averted accident is counted as an accident and would bring the Station Master into trouble. But there is absolutely nothing on record to show that an averted accident was staged. The evidence of the Driver of the Janata (P.W. 5) shows that no red signal was shown to him at the last moment indicating that he should stop the train. On the other hand, Satyanarayana was showing green light when the Janata passed over the point. If Ramanayya was staging an averted accident he would have taken steps at the last moment to prevent a collision. In the absence of any evidence to show that he did anything towards that end this suggestion must also be rejected.

Petitioner Kalidas is undoubtedly a junior officer aged about 24 years. The evidence of P. W. 32 shows that his father is a senior officer in the Railway working at kidderpore in Calcutta, and that he was actually at Narasimhapura on the 23rd and 24th January, 1958. P.W. 19 stated that he saw him on the 24th, January morning. There is also sufficient evidence to show that immediately after the accident Kalidas disappeared from the Station and reappeared sometimes later. The Guard of the Janata (P.W. 16) stated that when he went to the Station house immediately after the accident, it was plunged in darkness and not one member of the Station staff was there. The Station Master (P.W. 1) came a few minutes later and he also did not see Kalidas there; he saw him only at about 23 hours. Under these circumstances the lower Courts were justified in holding that Kalidas, being an inexperienced junior official, completely lost his head after the accident ran to his father for advice and then the fantastic story of his missing coat containing the key of the Down point. Any senior official of the Railway would at once know that the points could not be set except under the instructions of the Assistant Station Master-in-charge who is elected to keep the key in his possession. If there the Down facing point had been correctly set for the loop and the key had remained with Kalidas as alleged by him, the point could not be reset again for the main line without his connivance. It was to explain away this damaging circumstances that the aforesaid story about the missing of the key from his coat was put forward.

There are also indications in the record to show that some of the Railway witness have been persuaded to make relate-untrue statements with a view to save Kalidas.

Thus P.W. 7 who is an Assistant Fuel Inspector travelling by the Passenger stated for the first time during his cross examination by Petitioner Kalidas, that when the Passenger steamed into the Station Yard the light indicator of the Down facing point was showing green-that it to say that the point set for the loop line. This statement, if true, would corroborate the version of Kalidas that he had set the facing point for the loop line, and put the key in his coat, and then returned to the Station house. But the question is whether such a belated statement could be believed. When confronted with his previous statements this witness admitted that he did not say anything about this fact to the Government Inspector of Railways, during his enquiry, because the latter did not specifically question him on this point and that he did not speak about it to anybody till that day. The Government Inspector of Railways was making an enquiry to find out the cause of the accident and to fix the responsibility for the same. This witness (P.W. 7) being himself a Railway official knew the scope of the enquiry.

If as stated by him in the court, he had seen the green light in the Down indicator which would show that the Down point was sector the loop line, he would surely have mentioned that the fact at once to the Government Inspector of Railways because that would be a very important circumstances to show that Kalidas was not to blame. His explanation for not mentioning fact to the enquiring and Inspecting Officer cannot therefore be believed. I am satisfied that this witness made this favourable, but untrue answer in cross examination with a view to save Kalidas.

Some reliance was placed by Counsel for Kalidas on the evidence of the Engine-Driver of the Passenger (P.W. 23) to the effect that when the Passenger arrived at the platform he saw a Pointman going towards the Down point side with a lamp in his hand. It was suggested this Pointsman was none else but Ramanayya who was hurrying to the Down point side with a view to meddle with the point and set it for the main line as stated by Kalidas. Even if this witness''s evidence is believed, it does not materially help Kalidas because he could not identify the Pointsman.

Then again if the various statements of the Jamadar Mohurrum Khan (P.W. 26) are carefully scrutinised it is apparent that powerful influences were brought to bear on him to make belateil statements with a view to save Kalidas. His evidence can be accepted only in respect of these facts which were stated by him before Mr. Ungur (P.W. 32) see Ext. 35. In his earliest statement before that officer he did not say that he heard Kalidas ordering Satyanarayana to admit the Janata on the loop line. In his subsequent statement before the Government Inspector of Railways he stated that while Ramanayya and Kalidas were quarrelling, Kalidas directed Satyanarayana to go to the Down facing point to pass the Janata on the loop line. But he added that Kalidas left for the Down facing point though he could not say whether he actually reached there or not, while giving evidence in the Court, he stated that when Satyanarayana went to the down point he found the light indicator showing green, but admitted that he did tell the police that he found green light on the light indicator. On the other hand, his statement to the police was that he could not say whether the light indicator was showing green or white light. He also admitted that Kalidas and Satyanarayana were talking in Telugu which he did not understand but added that Kalidas repeated his instructions in Hindi to him so that he could understand the same. This explanation is unbelievable. There was no necessity for Kalidas to explain in Hindi to Jamadar Mhurrum Khan the instructions that he had given to Satyanarayana His evidence that Kalidas ordered Satyanarayana to receive the Junta on the loop line and that he actually saw Kalidas going towards the Down facing points and that the down light indicator showed green cannot therefore be believed.

I would therefore be in agreement with the two lower Courts to reject the story put forward by Kalidas and also that portion of the evidence of the aforesaid two witnesses to the effect that the Down facing point was actually set for the loop line when the Passenger arrived on the main line.

As admittedly the key of the Down facing point was recovered from Petitioner Satyanarayana, the next question is: how did he obtain possession of it? His own statement is that Kalidas himself handed it over to him saying that the Janata would arrive on the main line. He further added that Kalidas at first told him that the Janata would arrive on the loop line, but soon afterwards be changed his mind saying that it would arrive on the main line. It is true that his statement u/s 342, Code of Criminal Procedure cannot be used as evidence against the co-accused (Kalidas). But on this point we have the direct evidence of P.W. 30 Ramanayya. He stated that Kalidas passed three contradictory orders. At first he stated that the Jantta would arrive on the loop line and the passenger on the main line. This direction was given by him to the two Pointsmen, namely Ramanayya and Satyanarayana, in their presence, as required by the Rules and Kalidas also handed over the keys of the respective points to them. But when Satyanarayana was going towards the Down point Kalidas pointed out that he had decided to admit the Passenger on the loop line and the Janata on the main line. It was at this juncture that a violent quarrel took place between Ramanayya and Kalidas.

Ramanayya appears to have been of somewhat quarrel some deposition and though a suggestion was made that he was drunk the evidence of the Station Master (P.W. 1) and of the other. Assistant Station Master (P.W. 19) makes it clear that he was not drunk at that time though he might have taken some drink. In consequence of this quarrel Kalidas immediately gathered his suspension and asked him to handover his badge and key to Balaji (the centre Pointsman)(P.W. 29). Ramanayya would not immediately obey but went to the Station Master close by to complain. A few minutes later, however, on being advised by the Station Master he retried to the station house and handed over the key and his badge. Thereupon Kalidas ordered Balaji to go to the Up point side and to fix the point and handed over the key to him. During this interval, however, the Passenger had already arrived close to Narasimhapura Railway Station, and thereupon Kalidas, thinking that it would take sometime to adjust the Up facing point to the loop line, changed his mind for the third time and shouted to Balaji to admit the Passenger on the main line.

The next question is whether the evidence of Ramanayya can be believed. It is true that he had a violent quarrel with Petitioner Kalidas immediately before the arrival of the train that he was somewhat insubordinate, and there might possibly be some motive for him to put Kalidas into trouble. This may be a circumstance to view his testimony with suspicion and insist on some corroboration. The trial Court accepted Ramanayya''s evidence as substantially true, but the lower appellate Court was not prepared to go so far. I have carefully gone through the records and I am inclined to accept the trial court''s view. Ramanayya made the earliest statement a few hours after the accident when P.W. 32 arrived at the spot and commenced his enquiry. Though Kalidas had the opportunity of taking the help of his father a senior railway official who as stated already was actually present then at Narasimhapura there a none to help Ramanayya at such an out of the way place to concoct a false case against Kalidas. His earliest statement clearly shows that Kalidas passed two contradictory orders in the first instance, by first directing that the Janata should be received on the loop line, then again saying that the Janata should be received on the main line, and the Passenger on the loop line. The strongest corohoration of portion of Ramanayya''s evidence is found in the Rules themselves. The first train should be received on the loop line. The first intimation to Kalidas was that the Janata would arrive earlier and the Passenger later. His own entries in the train signal Register (Exts. 4 & 5) show that he gave the ''line-clear'' signal for Janata at 20.53 hours and for the Passenger at 20.57 hours. P.W. 32 also supported this entry by saying that from the records of Berhampur and Jagannathpur Railway Stations he found that the Janata was to be received first at Narasimhapura but that it was detained 5 minutes extra at Berhampur and therefore the Passenger arrived at Narasimhapura first. The first order given by Kalidas to the Pointsman was, quite properly to the effect that the Janata should be received on the loop line and the Passenger on the main line. But since subsequently due to detention at Berhampur the Janata was expected to arrive later and the Passenger earlier he was justified in changing his previous order and directing that the Passenger should be admitted on the loop line and the Janata on the main line. Thus the first two orders of Kalidas, as poken to by Ramnayya, are corroborated by the expected time of arrival of the two trains and the Rules which at that time there was no special reason for Kalidas not to follow. Ultimately the Passenger was received on the main line. According to Ramnayya this last minute change in the decision of Kalidas was due to the fact that it was already getting late and it would take some time to set the Up point to the loop line whereas if the Passenger was straightaway admitted on the main line for which the points had already been set, the Janata may subsequently be admitted on the loop line. This portion of the evidence of Ramnayya may require some corroboration because he did not specifically refer to the third order of Kalidas, in his earlier statement before Mr. Ungur. But on this point the strange corroboration is to be found in the evidence of Balaji the centre Pointsman (P.W. 29). He has spoken about the earlier conversation between Kalidas and Ramanayya and their quarrel. He has stated that Kalidas then asked him to go to the Station Master (to whom Ramanayya had gone with the key) be as he was proceeding towards the station Master''s house, Kalidas recalled him saying that the train was already ''out''. Then Ramanayya returned and gave the key of the Up point to Kalidas who handed it over to the witness (Balaji) and asked him to admit the Passenger on the main line saying that the Janata would be admitted on the loop line. Thus the existence of the sudden emergency created by the unexpected earlier arrival of the Passenger arid the necessity to avoid further delay that would inevitably be caused by setting the Up facing point for the loop line, as spoken to by Ramanayya, is corroborated by the evidence of Balaji, though the latter could not obviously say anything as to what were the previous orders given by Kalidas. The other Assistant Station Master (P.W. 19) stated that it takes about 8 to 10 minutes to set and clamp the points though, according to P.W. 32, it would take only 3 to 4 minutes. But there can be no doubt that the setting and clamping of facing points does take some minutes as stated by all concerned. Some minutes had already been wasted in the quarrel between Kalidas and Ramanayya, the latter first refusing to hanrlover the key of the Up point to Kalidas, his proceeding to the station Master to complain against Kalidas and then returning to the station to handover the key to Kalidas. During this interval the Passenger was already out and Kalidas rightly thought that if the rule about admitting the first train to the loop line were to be strictly followed, some more time would be wasted in setting the Up facing point for that line. On the other hand the admission of the Passenger on the main line could be done without any further delay because both the points had already been set for the main line from before. Hence he took the risk of receiving the Passenger on the main line intending that the Down point may thereafter be shifted to the loop line to receive the Janata which was to arrive later. This he could do because the coming of the Janata was delayed. But as it has been well established that the Down point had been found set for the main line when the Janata actually arrived and Kalidas''s explanation that it had been set for the loop line has been disbelieved, the obvious inference is that after issuing his third order to Balaji he forgot to set the Down point for the loopline and his previous order to Satyanarayana that it should be set for the main line was not counter made. This serious omission on his part could only be attributed to his losing temper on account of quarrel with Ramanayya and his being otherwise preoccupied with the Passenger which had already arrived at the Station.

I would therefore accept the finding of the trial court and held that the accident was due to mainly the negligence of Kalidas (a) in not personally seeing to the setting of the down facing point to the loop line for the Janata after admitting the Passenger on the main line, (b) in handing over the key of the Down point to Satyanarayana instead of keeping it in his personal custody, and (c) in lowering the down signals without caring to ascertain whether the down light indicator showed green or white light. It is true, as stated already, that the railway line is curved near the station and Kalidas could not see the down light indicator by merely sanding on the platform, but p.w. 32 who held a demonstration later stated if Kalidas had cared to walk bout 73 steps from his office room he could have seen the light point. The Rules cast on the station master the personal responsibility of seeing to the correct setting of the facing points before directing the lowering of the signals. There can thus be no doubt that Kalidas was guilty of gross breach of the Rules.

Mr. Kanugo for the Petitioner Kalidas then urged that he could not be convicted u/s 304-A, Indian Penal Code in as much as the immediate cause of the accident was the negligence of the Driver of the Janata (p.w. 5) in not noticing the Passenger train standing on the main line and in not stopping the Janata in time before the collision occurred and that though Kalidas''s action might be in contravention of the Rules, nevertheless he should not be held guilty of criminal negligence. He relied on Pt. Bhagwan Das Vs. Emperor, and Shankar Balakrishna v. Emperor ILR Cal. 73 and also on the well known English decision in Queen v. Ledger 175 Eng. Rep. 1319 where it was held that where the negligence of some other person intervened between the negligence of the accused and the fatal result, the accused should not be convicted of a rash and negligent act. In my opinion, these cases are distinguishable. In the instant case no negligence can be attributed to the Driver of the Janata. All the material witnesses are agreed that he was driving the Janata at the permitted speed of 10 miles per hour while approaching the point. The signals were lowered, the Points man also showed green light and there was no reason for the driver to anticipate the presence of the Passenger on the main line. Moreover due to the curvature of the railway line he could not notice the Passenger until he was too close to its engine and by that time it was too late to apply the brakes and avert the collision though on noticing the engine of the passenger at a distance of 20 to 25 yard,s he practically tried to stop the Janata. Furthermore, in Allahabad case cited above it appeared that it was not the duty of the Station Master-in-charge personally to walk up to the points and see that they had been correctly set. Here, however, the Rules and the Instructions issued for Narasimhapura railway station (already referred to) cast on the Petitioner the personal responsibility of seeing that the facing the points were set correctly, keeping the keys in his personal custody and not lowering the signals until he was satisfied that the points were properly set. The position might have been slightly different if it was a case involving a goods train. Similarly in Shankar Balkrishna v. Emperor ILR Cal. 73 was due to the conduct of the driver and the Guard of the train acting without the knowledge of the Station Master.

On the other hand. the following cases cited by the learned Standing Counsel in Local Government v. Har Prasad XLII. C. 646 Bishan Sarup v. Emperor 86 I.C. 61 and Secy. of State Vs. Shiva Datt and Another, fully apply here. Once the Rules and the Departmental Instructions cast on the Station Master the personal responsibility of setting points for passenger trains any omission on his part to comply with these rules and instructions strictly, in consequence of which the accident took place, would attract the provisions of Section 101 of the Indian Railway Act. In fact, Clause (b) of Section 101 refers to disobedience of a rule or order which the railway official was bound, by the terms of his employment, to obey and of which he had notice. Here, as already stated earlier, the evidence of the Station Master (P.W. 1) shows that the Instructions relating to Narasimhapura railway station were personally explained to Kalidas and his certificate to that effect was also obtained. Kalidas therefore was fully aware of his personal responsibility in respect of the admission of passenger trains to that station. Moreover, it was his act of the lowering of the down signal that directly contributed to the accident and no negligence of any other person intervened between that act and the collision. In my opinion therefore the conviction of Kalidas u/s 101 of the Indian Railways Act and Section 304-A, Indian Penal Code was proper.

The case of Petitioner Satyanarayana stands on a different footing. In view of my finding that the final order communicated to him by Kalidas was to keep the Down point set for the main line he had nothing else to do but to remain there with the key, show the green signal when the Janata passed that way and afterwards to set trailing point for the loop line so that the passenger which he thought was on the loop line may pass towards Berhampur side. The trial court however held him guilty because whatever might have been the instructions given to him by Kalidas his primary responsibility as pointsman, was to prevent a train from entering a wrong line and to show the red signal to the driver if anything unto wards was noticed by him indicating danger to the safety of the train (See Subsidiary Rules 51C and 51E). It was urged that he knew that the Passenger had already arrived and if only he had cared to walk a few steps from the down point he would have noticed that the train was standing on the main line, and it would then have been his duty to show the red (danger) signal and prevent the driver of the Janata from passing along the main line. Doubtless, if there was reason for him to believe that the passenger was standing on the mail line, he ought to have shown the danger signal to the driver of the Janata. But the question is: whether he could possibly anticipate that after issuing final orders to him Kalidas would change his mind and admit the passenger on the main line. According to the Rules also the earlier train should be admitted on the loop line and having seen the passenger arrive first, he had no reason to believe that it was not received on the loop line, especially when the previous instructions given to him by Kalidas to admit the Janata on the main line had not been counter-manded. Moreover the place where he was standing was at a distance of about 82l feet (see ext. 34) from the place of accident. The railway line was curved. Though from that distance he could have noticed where exactly it was standing, whether on the main line or on the loop line. Even the driver of the Janata (P.W. 5) he could see far ahead with he help of the powerful searchlight of his engine was unable to notice the engine of the Passenger standing on the main line until he was at a distance of 20 to 25 yards from it. It appears to me therefore that it would be somewhat unreasonable to expect that the Pointsman standing at the Down point should have noticed the passenger standing on the main line and then taken the necessary steps by way of extra precaution. It may be that if he had walked a few yards towards that train to find out where it was standing, he might have noticed its position and then given the danger signal to the driver of the Janata, But as, at that time, there was nothing to arouse any doubts in his mind, he did not proceed towards the Station house from the point where he was standing, to ascertain this fact; and on that account I do not think it will be proper to hold him guilty u/s 101 of the Indian Railways Act, or u/s 304-A Indian Penal Code. He had fully complied with the instructions given to him by the Assistant Station Master which to start with were also in accordance with rules) and merely because he did not take the steps which an over careful or more prudent Pointsman would have taken, it will not be proper to hold him guilty of criminal negligence. Moreover, I find that in the charge framed against Satyanarayana it was stated that he was guilty of wrong setting of points and disobedience of the Rules relating to the setting of points. On the aforesaid findings, it is clear that he is not guilty of any of these acts and omissions. Subsidiary Rules 51C and 51E cannot be said to relate to the setting of points, but they deal with some other precautions to be taken by the Pointsman on the duty even after the points have been set. These should have been expressly mentioned in the charge. In the circumstances of this cas therefore Satyanarayana can legitimately complain that he has been held guilty of contravention of rule of which he was not given any notice in the charge. During his examination u/s 342, Code of Criminal Procedure he was questioned on this point and he replied that from the point where he was standing he could not notice the passenger standing on the main line. But if the charge had been correctly framed he might have been able to elicit by cross examination many railway officials that there was no particular reason for him to expect that the passenger would be waiting on the main line and that it was not possible for him to notice it from the point where he was standing. Taking all these facts into consideration, I must hold that this Petitioner is not guilty of the offence with which he was charged.

For the aforesaid reasons the petition of Satyanarayana (in Criminal Revision 261 of 1960) is allowed, he is acquitted of the charge, and is directed to be set at liberty forth with. The petition of Kalidas (Criminal Revision No. 251 of 1960) is dismissed and his conviction u/s 101 of the Indian Railways Act and u/s 304-A, Indian Penal Code are maintained. The learned trial court has observed that as the ingredients of the offences u/s 101, of the Indian Railways Act and 304-A, Indian Penal Code are almost the same, a single sentence was passed. When a person is convicted of two offences the court must indicate the particular offences for which the sentence is passed. It is always open to the court not to pass any sentence for the other allied offence. I would therefore slightly modify the order of the lower courts and direct that the sentence of three months rigorous imprisonment and fine of Rs. 100/- (one hundred only) passed on Kalidas by the lower appellate court should be for the offence u/s 101 of the Indian Railways Act, and that no separate sentence is necessary for the offence u/s 304-A, Indian Penal Code.

The revision petitions are disposed of accordingly.