1. Tulsiram s/o. Sitaram, a ferry contractor, of village Tamaswadi, and his two servants Koudu and Shripat, have filed this revision application against their conviction under Section 304A of the Indian Penal Code, confirmed by the Sessions Judge. The applicant Tulsiram issentenced to six months rigorous imprisonment and a fine of Rs. 50/- and applicants Koudu and Shripat are sentenced to rigorous imprisonment for four months and a fine of Rs. 25/- each. Imprisonment in default of payment of fine has also been imposed.
2. On the two banks of river Kanhan are villages Tamaswadi and Potaghat. For the people of Tamaswadi to come to Nagpur they have to cross the river in boats. Ferry service is provided by licensed ferry owners under the control of the Janpad Sabha, Ramtek. The applicant Tulsiram was so licensed to provide ferry service between these two points in the year 1959. He held licence for this purpose from 1-6-1959 to 30-9-1959. The Janpad authorities made rules for issue of such licences and the conditions of the licence are to be found in Ex. P-5. Tulsiram did not have a licence with him for the period on or after 1-10-1959. But it appears he still plied boats for ferry service. Tulsiram's case is that he had applied for renewal of his licence. There is evidence to the contrary on record in the testimony of the Deputy Chief Executive Officer (P. W. 6). On 11-10-1959 early in the morning passengers were waiting for being transported in a ferry from Tamaswadi to Pola Ghat. It appears a couple of trips were made by two boats in the ownership of Tulsiram. Two boats were tied together with an iron rope and passengers used to be carried from one bank to the other both ways by Tulsiram and his servants. At about 7 o'clock about 35 passengers were put In two boats and among them were several women and men with their luggage. River Kanhan was in floods but the floods were receding according to the evidence on record. However, passengers it appears, were keen to cross the river as they wanted to come to Nagpur. Tulsiram, of course, had offered ferry service for transporting them. When the boats with the passengers which were being ferried by Tulsiram and his two servants came in mid-stream on account of floods and waves induced by floods wafer was lashing against the sides of the boat. Unfortunately, one such heavy forcible wave lashed against one of the boats which resulted in creating confusion among the passengers as well as the accused persons. The passengers in the boat which wasSO attacked by the wave seemed to have gone on one side, thus unbalancing both the boats. This resulted in both the boats turning turtle and the passengers being thrown in water. Both the boats capsized and the passengers were unable to catch anything to save themselves. Some of the passengers ultimately succeeded in reaching the banks while a few others had to pay with their lives; one such passenger was one woman Janibai who was completely drowned and it was only her dead body which was found on the bank. Two other women passengers became unconscious while several others suffered similarly. The accused persons themselves were thrown out of the boats and could with difficulty come to the bank.
3. A report of this incident was made by the Sar Panch of village Tamaswadi the same day and it is exhibit P-1 on record. The report says that about 35 passengers were carried in two boats of the applicant Tulsiram; and when the boats capsized it resulted in the unfortunate accident. Investigation was made by the police. As a result of this report the accused have been prosecuted for causing death of Janibai and some others whose identity is not established by rash and negligent act of putting the boats in water for ferrying passengers in spite of the river being flooded and thus running the risk to the lives of the passengers. The prosecution called in evidence two of the passengers Gopala (P. W. 3) and Gulab (P. W. 5) who were in the unfortunate boats but who had succeeded in surviving the accident. In addition, the prosecution relied on the evidence of the Deputy Chief Executive Officer Shri Madhav who deposed that the licence required to be taken for ferry service by Tulsiram had expired on 30-9-1959 and that he bad not a valid licence with him nor was there any application for renewal of the licence pending in the office. Under the rules for ferry service made by the Janpad authorities, the boats had to bear water mark to indicate weight which should be carried, whether of passengers or of goods while ferrying from one bank to another. According to the prosecution, the two boats were not worthy of being used for ferry service. They were leaking, had holes and did not bear water mark as required by the Janpad rules.
4. The defence of the accused was that even though river Kanhan was in floods, floods were receding, that their boats were seaworthy, that actually passengers were being transported from one bank to another that very morning prior to the trip which met with this unfortunate accident, that there was no unreasonable risk taken by 'the accused and that it was an accident that a large forcible wave lashed against one side of the boat while the boat was mid-stream which tilted the balance and the accident was further accentuated by the passengers leaning on one side and thus completely over-turning and capsizing the boat. Thus the tragedy was merely because of the accident which could not be anticipated and which could not be attributed to any rash or negligent act on the part of any of the accused,
5. The trial Court as well as the learned Additional Sessions Judge have rejected this contention of the accused and have held that the ac-cused are proved to have been guilty of rash and negligent act and risking the lives of so many passengers firstly by overloading and then by taking the passengers in boats which were found to beunseaworthy.
5a., The applicants have challenged their conviction in this Court. It is contended that the evidence that the boats were unseaworthy or were leaking or had holes is wholly unsatisfactory and should not have been accepted. The only evidence on this point is the oral testimony of Parasram Meghani (P. W. 8). But it is pointed out that Parasram is alleged to have made inspection of these two boats on two occasions, once ire August and again in November. Parasram has admitted that he sent reports of his examination but such reports are not forthcoming and have not, been filed. A suggestion is made by the applicant Tulsiram in his statement that Parasram is unfavourably disposed towards him because he expected some monetary advantage to give favourable evidence and because the accused Tulsiram would not agree, Parasram has made a false statement regarding the condition of the boats. It is also pointed out that when the boats were seized immediately after the occurrence the description of the boats which is found in the document does not indicate that there were holes or any leakage in those boats. Moreover, when the boats were examined when the licence was renewed it has come out on record that the boats were found to be seaworthy. It is therefore contended, and in my opinion rightly, that the evidence of Parasram alone should not be accepted without due corro-boration. I also find that Parasram's testimony if accepted would certainly show that the boats were leaking and were wholly unseaworthy. But that evidence required to be corroborated by reports alleged to have been made by him. No explanation is offered for the failure of the prosecution to prove those reports or file them on record. I therefore do not hold that the boats were already in an unsatisfactory or unseaworthy condition.
6) This takes us to the next question whether any of the accused is proved to be guilty of rash and negligent act. The argument is that floods were receding; the boats had already ferried once or twice before with full number of passengers and by carrying of about 35 passengers which was the usual load carried by the two boats according to the evidence on record it could not be said that the applicants were guilty of rash and negligent act if they put their boats in water when floods were receding, it was a mere matter of accident that there was a heavy wave which dashed against the boat and capsized it resulting in the loss of lives at least of one passenger. I find it difficult to accept this line of reasoning. In my opinion, applicant No. 1 Tulsiram would have been well-advised to arm himself with a licence and should never have taken the risk of continuing the ferry service without being covered with a licence for this activity. It is true that the applicant is not being prosecuted for breach-of any provisions of the rules requiring a license-to be taken. But the very fact that he did not take a licence after the expiry of the previouslicence does indicate a certain amount of negligence on the part of Tulsiram. But a more serious aspect of the matter was that there was certainly risk attendant in ferrying passengers and transporting them in the condition in which river Kanhan was on that morning. There is no doubt that the river was in floods. Even if floods were receding as deposed to by some witnesses, the risk of forcible waves dashing against the boats while ferrying with heavy load of passengers and goods could not have been ruled out. In fact, what has happened in this case is that with full number of passengers this risk was patently attendant in putting the boats in the river in the condition in which it was flowing the floods having just receded. Even though floods had receded negligence lay in taking the risk of the boats being hit by the waves and it will be no answer to say that on all previous trips on that day the boats had escaped any such accident. In my opinion, it was the duty of applicant No. 1 who was specially qualified to know risks that are run on such occasions to have desisted from carrying passengers in the ferry at least till such time as floods had completely abated. Not having so waited the applicant No. 1 took the risk of exposing the passengers to the risk of losing their lives if the boats were to cap-size or torn turtle resulting in the passengers being thrown in water and drowned. It is that risk which had been taken and constitutes an act of negligence and rashness in taking that risk. I therefore confirm the finding of the Courts below that applicant No. 1 did take the risk and exposed lives of passengers by rash and negligent act of putting the boats in water when the river was in floods and there was every risk of the boats capsizing on account of the waves which tragedy in fact happened. But as regards accused 2 and 3 who are merely servants of accused No. 1 they cannot be held guilty under Section 304A of the Indian Penal Code. Negligence and rashness consisted in taking the decision to ferry passengers in spite of the river being in floods. The responsibility for that decision and carrying it out was solely of applicant No. 1. Applicants 2 and 3 were mere servants of applicant No. 1 and they had possibly no option. There is evidence that two passengers also helped rowing. They thus ran an equal risk when the boats were put in water for carrying passengers. However, the case is not being decided on the question whether the accused did not risk their own lives. Criminality of the act is attributable to the applicant No. 1 taking a risk. That risk was taken by applicant No. 1 whose decision alone occasioned putting of the boats in water and carrying passengers when the river was in a dangerous state of floods. I therefore hold that neither of the applicants 2 and 3, namely Koudu and Shripat, can be found guilty of the offence under Section 304A of the Indian Penal Code. The conviction and sentence passed on each of them are set aside and they are acquitted. The fines, if paid, shall be refunded to them.
7. I confirm the conviction of applicant No. 1 Tulsiram under Section 304A of the Indian Penal Code. As regards sentence I find that the learned Additional Sessions Judge himself has indicated the circumstances, in which the unfortunate tragedy occurred. Considering therefore that the floods were receding and the accused may have been tempted to take the risk when on prior occasions he did not find any danger in such ferrying, the accused might be saved from any jail punishment in this case. The ends of justice would be met if the accused is sentenced to pay a fine of Rs. 300/-. Therefore, the revision is partly allowed. The sentence of rigorous imprisonment for 6 months and fine passed on applicant No. 1. Tulsiram is set aside and instead he is directed to pay a fine of Rs. 300/-. The accused is given one month's time within which the amount may be paid. In default of payment of fine, he shall suffer rigorous imprisonment for one month.
8. In my opinion, the Janpad authorities will be well advised to consider whether it is not necessary to incorporate in their rules stringent conditions for inspection and certification of ferry boats for which a licence is to be given. It will be proper if periodical inspection of such ferries and boats is insisted upon prior to issuance of licences to qualified persons. This may save similar tragedies being repeated in future.
9. Revision partly allowed