Sudalaimuthu and etc. vs State

Crl.R.C. No. 633 of 1990, filed by the petitioner K. A. Mydeen, a driver (A-1) is directed against the Judgment of conviction and sentence

imposed by the Judicial Magistrate, Valliyoor, in C.C. No. 449 of 1989, as confirmed by the Principal Sessions Judge, Tirunelveli, in C.A. No.

157 of 1990. Crl.R.C. No. 632 of 1990, filed by the petitioner Sudalaimuthu, a Conductor (A2) is directed against the conviction and sentence

imposed by the Judicial Magistrate, Valliyoor in C.C. No. 449 of 1989, as confirmed by the Principal Sessions Judge, Tirunelveli, in C.A. No.

158 of 1990. Both the petitioners were convicted u/s 304-A I.P.C., and sentenced to undergo R.I. for six months and to pay a fine of Rs. 1,500/-.

The short facts leaving to the above revisions could be summarised as follows :-

The petitioner in Crl.R.C. No. 633 of 1990, K. A. Mydeen, and the petitioner in Crl.R.C. No. 632 of 1990, Sudalaimuthu, were the Driver and

Conductor of the bus belongs to Kattabomman Transport Corporation, bearing registration No. TCP 7987, during the time of accident that took

place at Thirukurungudi bus-stop, on 6-3-1989. P.W. 1 Sathyabai, hailed from Srilakshmipuram. The deceased Valliyammal is her grand-mother.

On 5-3-1989, P.W. 1 Selvi Sathyabai, came to see her grand-mother at Thirukurangudi village. Next day, i.e. on 6-3-1989, at about 3.00 p.m.,

P.W. 1 came to the bus stop at Thirukurangudi, in order to board the route No. 68 bus, belongs to K.T.C., coming from Babanasam to

Kanyakumari. The deceased Valliyammal, the grand-mother of P.W. 1, also came there to send-off her and both of them waited at the bus-stop.

At about 3.15 p.m., the said bus TOP 7987 came and stopped at the bus-stop. P.W. 1 boarded on the bus and took her seat. The deceased

Valliyammal also got into the bus and handed over her bag containing paddy to P.W. 1 and then she moved to alight from the bus. At that point of

time, the conductor Sadalaimuthu blew the whistle, giving signal to the Driver Mydeen to start the bus. Then, the driver started the bus. In that

event, the deceased, Valliyammal, having lost her balance fell down from the bus. The left side rear wheel of the bus ran over on her right thigh.

The passengers raised alarm. The driver immediately stopped the bus on the spot. Valliyammal the grand-mother of P.W. 1, also died at the spot

itself.

P.W. 2 Krishnan, is having a petty shop, near the said bus stop. After this incident, P.W. 2 who already knew P.W. 1 took her to the police

station. P.W. 6, Gnanam Gandhi, the Head Constable, at 3.30 p.m., received the complaint Ex.P1 attested by P.W. 2 Krishnan, from P.W. 1 and

registered the case in Cr. No. 75 of 1989, for the offence u/s 304-A I.P.C. The printed F.I.R. is Ex.P6.

P.W. 7 Jebhamani, Inspector of Police, took up investigation at 4.00 p.m., went to the spot and prepared observation mahazar Ex.P2 and

rough sketch Ex.P7, in the presence of P.W. 2. Between 4.30 p.m., and 6.30 p.m., he held inquest and examined the witnesses. P.W. 4, Doctor

Senguttuvan, conducted post-mortem over the body of the deceased and issued Ex.P4 post-mortem certificate.

On 7-3-1989, P.W. 5 Ramamurthi, the Motor Vehicle Inspector conducted the vehicular check up on the subject vehicle and issued Ex.P5

certificate. He was of the opinion that the vehicle was in a good condition and there was no break failure. He also opined that the accident was not

due to any mechanism failure in the vehicle. After finishing the investigation, P.W. 7, Inspector of Police filed the charge sheet against the

petitioners, the Driver and Conductor of the vehicle, for the offence u/s 304-A I.P.C.

On behalf of the prosecution, P.Ws. 1 to 7 were examined, Exs.P1 to P7 were filed and M.O. 1 bloodstained earth was marked. On

conclusion of trial, when the accused were questioned u/s 313 Cr.P.C., to explain the incriminating circumstances, found available against them in

evidence brought on record, they denied their complicity in the crime, by stating that the said accident, which took place was not due to their

rashness or negligence.

However, the trial Court, accepting the case of prosecution found the petitioners guilty for the offence u/s 304-A I.P.C., and dealt with them as

referred to above. Aggrieved over this, two separate appeals have been preferred by each of the petitioners, which were dismissed by the first

appellate Court. Hence these two revisions.

Mr. Ashok Kumar, learned counsel appearing for the petitioner in Crl.R.C. No. 632 of 1990, Sudalaimuthu, the Conductor of the vehicle and

Mr. Shanmughavelayutham, learned counsel for the petitioner in Crl.R.C. No. 633 of 1990, Mydeen, the driver of the vehicle, took me through the

entire evidence and Judgments of both the Courts below and contended that there are no material whatever available on record to prove

conclusively that the petitioners have acted in a rash and negligent manner, resulting in the death of the deceased.

Per contra, Mr. Babu Muthumeeran, learned Government Advocate, repelled the submissions made by the learned counsel for the petitioners

and contended that the verdict given by the trial Court as well as the First Appellate Court was correct and the same is unassailable.

Before adverting to the materials projected through P.Ws. 1 to 3, who are the eye witnesses in this case, let me at the outset deal with the

ingriedents of the offence. Section 304-A I.P.C., reads thus :-

Causing death by negligence :- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide

shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both"". Therefore, the

materials available in this case shall prove either rashness or negligence on the part of the accused/petitioners in their acts, which resulted in the

death of the deceased.

There are three eye-witnesses in this case. P.W. 1 is the grand-daughter of the deceased. P.W. 2 Krishnan is the owner of a petty shop,

situated near the bus-stop, where the accident had taken place. P.W. 3 is one of the passengers of the subject vehicle. P.W. 1 would state that the

deceased, her grant-mother, after handing over the paddy bag, while alighting from the bus, lost her balance, since the bus was started.

[Vernacular matter omitted]

However, she would state in her cross-examination, that she did not know as to whether the conductor Sudalaimuthu blew the whistle, after all the

persons boarded on the bus. [Vernacular matter omitted] There is nothing to indicate from her evidence, that the deceased also boarded on the

bus, only for the purpose of handing over the paddy bag to P.W. 1, and getting down immediately. In her cross-examination, she admits that after

her grand-mother boarded on the bus, two or three passengers also boarded the bus and stood behind the deceased. [Vernacular matter omitted]

P.W. 2, though he was cited as one of the eye-witnesses, he would say that he did not see the occurrence. Admittedly he was not in the bus.

He was having a petty shop near the bus-stop. As such, his evidence is of no use for the prosecution.

P.W. 3, Perumal, who was one of the passengers boarded on the bus before P.W. 1 got into the bus. P.W. 3 even in this chief examination,

would state that before the deceased alighted from the bus, the Conductor gave the whistle, consequent on which the Driver started the bus and at

that point of time, the deceased jumped from the bus and fell down on the floor, with the result, the left rear wheel of the bus ran over her, causing

her death at the spot itself.

[Vernacular matter omitted]

It is also quite significant to note that even in his cross-examination, he specifically stated that only after blowing the whistle by the Conductor, the

deceased moved to get down from the bus. [Vernacular matter omitted]. These materials would indicate that the deceased alighted from the bus,

despite the blowing of the whistle and starting of the bus.

A reading of the evidence of all the witnesses would never indicate anything about the rashness or negligence on the part of either of the

petitioners herein. There is also no evidence to show that the deceased while getting on the bus, informed the Conductor or Driver of the bus, that

she would get down after handing over the bag to P.W. 1, her grand-daughter. It is also not the case of P.W. 1, that the deceased had asked the

Conductor or Driver, not to start the bus, since she wanted to get down from the bus. But, on the contrary, there is evidence available through

P.W. 3, that after the bus started on the whistle given by the Conductor, the deceased jumped out of the bus and fell dawn. P.W. 1 also would

admit in her chief examination, that the bus was stopped immediately on hearing the alarm raised by the passengers, on the spot itself by the driver.

[Vernacular matter omitted]. She also admitted that the accident took place at the same place, viz. at the bus-stop itself. It is not the case of the

prosecution that the vehicle was started and an great speed and in a rash and negligent manner, as soon as the whistle was given and the driver

stopped the bus only after some distance. As referred to earlier, the bus was stopped at the spot itself, which is quite clear on perusal of the

observation mahazar Ex.P2, also. As such, I have no hesitation to hold that the important ingredients, such as rashness or negligence on the part of

the petitioners/accused have not been established by the prosecution in this case.

The Apex Court, on various occasions held, while adverting to the ingredients of an interpreting Section 304-A I.P.C., that the death must be

the direct result of a rash and negligent act and the proximate and efficient cause without the intervention of another''s negligence, and that there is

no presumption in law of rash and negligent driving, merely because the bus runs on the road. In this case, as soon as the alarm raised by the

passengers, as spoken to by the witnesses, the Driver Mydeen had put on the breaks immediately after the impact and the bus came to a halt at the

bus-stop itself. Moreover the duty of the Driver is to start the bus, as soon as the whistle was given. The very fact that the bus was stopped

immediately would make it clear that it was not started with speed and rash manner. So, in such circumstances, it will not be possible to hold that

the Driver of the vehicle was driving the vehicle either in rash or negligent manner.

The defence of the petitioners was that they acted neither rashly or negligently, and that the accident was unavoidable. In fact, both of them did

not know before the whistle was given and the bus was started, that the deceased was going to get down from the bus. The Supreme Court in

S.N. Hussain Vs. The State of Andhra Pradesh, , has observed as follows (Para 7) :

Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such

a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is

the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public

generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative

duty of the accused person to have adopted"".

Admittedly, the deceased in this case moved to get down from the bus, after the whistle was blown. Immediately, after the bus was started, the

deceased jumped out of the bus and fell on the road. In the light of the above facts, this Court has to see whether there is any element of rashness

or negligence. Rashness is acting in the hope that no mischievous consequences will ensue though aware of the likelihood of such consequences,

negligence is acting without the awareness that harmful or mischievous consequences will follow, but in circumstances which show that had the

actor exercised the caution incumbent on him he would have had awareness of the consequences of his act. Rashness or negligence should be of

the kind to endanger human life or likely to cause hurt or injury to any other person. Negligence in this context has generally been understood as

conduct which falls below the standard established for the protection of others against unreasonable risk or harm.

The requirements of Section 304-A, I.P.C., are that the death of any person must have been caused by the accused by doing any rash or

neligent act. In other words, there must be a proof that the rash and negligent act of the accused was the proximate cause of death. There must be

a direct nexus between the death of the person and the rash or negligent act of the accused. As mentioned earlier, in this case, there is no evidence

to show that it was rash or negligent act of the accused that caused the death of the deceased. The act of the driver in starting the bus and the act

of the Conductor in blowing the whistle do not have a direct nexus with the death of the person, since the facts of the case would reveal, that the

act of the deceased in jumping out of the bus, after the blowing of the whistle was an intervening circumstance.

As observed by the Supreme Court in Ambalal D. Bhatt Vs. The State of Gujarat, the act causing the death must be the causa causans; it is

not enough that it may have been the causa sine qua non. In Kurban Hussein Mohammedali Rangwalla Vs. State of Maharashtra, it is held that

death must be the direct result of a rash and neligent act of the accused, and that act must be the proximate and affluent cause without the

intervention of another''s negligence, and it must be the causa causans; it is not enough that it may have been the causa sine qua non. It has been

observed by Maharajan, J. in Kothandam in re, 1972 MLW (Cri) 52, that 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.

In the light of the foregoing analysis, I am of the view, that there is no evidence in the present case to show that rash or negligent act of the

petitioners caused the death of the deceased. Both the Courts below have not approached the case with a clear understanding of the facts and the

correct principles of Law warranting interference by this Court in this case with the broad interest of justice.

In that view of the matter, both the revisions are allowed. The conviction and sentence imposed upon both the petitioners are set aside and the

petitioners are acquitted accordingly of the charge under Sec. 304-A, IPC. The fine amount, if collected, from the petitioners/accused, shall be

refunded to the petitioners.

Revisions allowed.