State vs Mathai Abraham

Kunhi Raman, C.J.—This appeal is brought on behalf of the State from the decision of the learned Sessions Judge of Kottayam in S.C. 6 of 1950. The accused in that case was a motor driver who was driving a motor lorry from Palai to Kottayam. Three miles after passing Ettuman-noor when it was midnight, the lorry met with an accident in the following circumstances. The prosecution evidence shows that the lorry was heavily loaded with bags of copra. At the scene of occurrence of which a Mahazar has been prepared and marked as Ext. C the road was 18 feet wide. The road runs from north to south. The lorry was proceeding towards south, On the western, side of the road metal was stacked apparently for repairing the road. This according to the evidence for the prosecution was stacked at a height of about 2 feet, a width of four feet and a length of 20 feet, when the lorry was proceeding towards the south, the right wheels of the lorry were driven over this stack of metal. The evidence of P. W. 4 who was regarded as an ex-pert witness being a traffic Inspector of motor buses, is to the effect that he noticed after the accident that both the wheels of the lorry had passed over the whole length of the stacked metal that is to a distance of is feet.

After the right wheels of the lorry had passed the whole length of this metal stack, the evidence is to the effect that the left front tyre of the lorry burst as a result of which it swerved, to the left and overturned to the left. At the time of this accident, the driver remained in his seat without jumping out. To the left of the driver was P. W. 7 who was travelling as a passenger and to the left of P. W. 7 was the cleaner of the vehicle by name Chacko, When the lorry overturned in this manner, Chacko was thrown out and caught underneath the lorry with the result that he sustained very serious injuries. He was removed to the hospital and there he died a little after two hours from the time of the accident. The driver of the 4 vehicle: was therefore charged under Sections. 227, 337 and 304, Travancore Penal Code. The learned Sessions Judge on hearing the evidence reached the conclusion that there was a reasonable doubt as to his guilt and accordingly passed an order acquitting him.

On behalf of the State, it is contended by the learned Public Prosecutor that from the evidence it is clear that the driver was guilty of negligence and that the loss of life and the physical injury sustained both by Chacko and by P. W. 7 should be attributed to the criminal negligence of the driver who was not keeping to the correct side of the road at the time the accident took place, the road being 18 feet wide and only four feet of this surface on the western side being covered by the stack of metal. Since the lorry was running from north to south, it was incumbent upon the driver to keep to the left side of the road which is the correct side of the road for him and had he kept to the left side of the road there would have been no danger of the lorry passing along the stacked metal and overturning as in the present case, since the accident occurred while the vehicle was being taken along the wrong side of the road it is incumbent upon the driver of the vehicle who is the accused to furnish a satisfactory explanation as to how the accident took place. He had no explanation to offer soon after the accident.

But in the Sessions Court both he and P. W. 7 as also P. W. 8 stated that there were some bullock bandies proceeding along the road in front of the lorry going towards the south as the lorry was proceeding and it was while these bullock bandies were being overtaken by the lorry that the accident took place. The explanation sought to be given is that when the lorry was overtaking the bandies, the bulls attached to one of the bandies gave trouble by swerving to the right and to avoid a collision with the bandy the accused driver had to move to the right side of the road and get over the stacked metal heap. The learned trial Judge has not chosen to believe this explanation because it was given at a belated stage of the proceedings. There is no s mention made of it in the statements Exts. A and M. It was a very long time after the accident that for the first time P. W. 7 made any reference to the bullock bandies. The opinion of the expert P. W. 4 is that the accident might have been caused either as a result of rash driving in the vicinity of the stacked metal or by the driver going to sleep and as a result, not noticing the presence of the stacked metal towards the side of the road. The learned Judge seems to think that accused had winked.

We are not inclined to accept the view taken by the learned trial Judge that there is any reasonable doubt in the present case especially in view of the fact that the lorry at the time of the occurrence was being driven along the wrong side of the road. If the presence of the bullock bandy is not believed, then there cannot be any possible explanation for the lorry moving along the wrong side of the road. Even if the bullock bandies were there, then also it does not follow that the driver after he swerved to the right should have driven the lorry over the whole length of the stacked metal to a distance of 20 feet. It is really a case in which he was not engaged in doing a lawful act. Had he kept to the correct side of the road it might be said that the injury was the result of a pure accident. But he was not keeping to the correct side of the road. He was moving along the wrong side of the road and in these circumstances we differ from the view taken by the learned Judge and on the evidence in the case we consider that the accused must be convicted under two of the sections mentioned in the charge. But in view of the nature of the evidence, we consider that a fine would be an adequate punishment and that it is not necessary to award a substantive term of imprisonment to the accused.

We accordingly convict him u/s 337 and Section 304 mentioned in the charge for having brought about the injury to human being by his negligent conduct and not keeping to the correct side of the road and sentence him to pay a fine of Rs. 150/-. In default of payment of fine, he shall undergo simple imprisonment for one month.