D.B. Lal, J.
1. This revision arises out of the judgment of the Sessions Judge, Bangalore, who dismissed the appeal filed against the judgment of the Chief Metropolitan Magistrate, Bangalore City, and convicted the petitioner for an offence Under Section 279 read with Section 338 of the I. P. Code and sentenced him to pay a fine of Rs. 200/- and Rs. 300/- respectively for the two offences.
2. The petitioner P. M. Raju was a driver of the bus trailer No. MYF 337/497. It was alleged that on 3-10-1974 at about 9-30 a.m., he was driving the said bus trailer and was coming on Thilak Park Road from south to north. When he reached the corner near Upparpet Police Station, he knocked down an old pedestrian, aged about 80 years, who was just crossing the road from east to west from the direction of that Police Station, as he had to cross the road towards Balepet, where he had to meet his lawyer. No sooner the incident took-place, the accused stopped the bus-trailer. He got down from the bus along with a few passengers, of whom, one was produced as eye witness. It was found that the old pedestrian had a fall on the road and thereby his thigh bone was fractured. For that act on the part of the accused, he was subsequently indicted before the Magistrate for the offence of rash and negligent driving so as to cause grievous hurt punishable Under Sections 279 and 358 of the I. P. Code.
3. The defence was one of denial and it was asserted on behalf of the accused that he had taken every precaution which a prudent man could have taken in the circumstances. The speed of the bus trailer was not much, which was evident, as it was brought to stand immediately after the accident. It was rather stated that the old pedestrian himself invited the accident by walking on the road from the foot path and by not noticing the approaching bus-trailer.
4. The prosecution produced several witnesses including P.W. 3, the old man, who received the injury. P.W. 4 was standing on the road and he saw the occurrence. He instituted the first complaint to the Police. P.W. 5 was the passenger, who travelled in that bus-trailer. He too was an eye witness. P.W. 6 was a Police Constable and perhaps at his instance, the bus-trailer was stopped. Besides these material witnesses. P.W. 2 was produced, as he was the Motor Vehicle Inspector, who examined the bus. It appears, the accused did not produce any witness.
5. The learned Magistrate, who tried the case, did not accept the version of the prosecution so far the offence was imputed against the accused, for any rash act on his part. It was rather found by the learned Magistrate that the accused never acted in a manner so rash as to endanger human life. That finding was arrived at, because, according to the learned Magistrate, the speed of the vehicle was moderate and as such, permissible for that part of the town. However, the learned Magistrate inferred negligence on the part of the accused inasmuch as he held that the brake in the rear bus was not available and as such, the accused should not have driven the bus-trailer without that brake. The learned Magistrate also inferred negligence on the part of the accused, because, according to him, the accused had not given the horn, so that the old pedestrian could have seen the approaching bus. On these two grounds, he inferred negligence on the part of the accused and thereby convicted and sentenced him in the manner stated above.
6. The accused, after conviction, filed an appeal before the learned Sessions Judge, but there too he failed. It was, however, held by the learned Sessions Judge that both rashness as well as negligence on the part of the accused were proved. Accordingly, he dismissed the appeal. Now the appellant-accused has felt aggrived of the two decisions and has preferred the present revision.
7. Section 279 of the I. P. Code refers to an act so rash or negligent as to endanger human life, or likely to cause hurt or injury to any other person. Thus, the offence could be Imputed against the accused if his act was either rash or negligent. The two expressions 'rash' and 'negligent' have been well defined by Austin in his Jurisprudence, Vol., I, 4th Edition, Page 444, The learned author draws a distinction between negligence, heedlessness, and rashness which, though closely allied, are broadly distinguished by differences. In cases of negligence, the party performs not an act to which he is obliged. He breaks a positive duty. In cases of heedlessness or rashness, the party does an act from which he is bound to forbear. He breaks a negative duty, Criminal negligence 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 persons to have adopted. Negligence is thus an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. It was, therefore, to be seen by the two Courts below, if the criminal negligence imputed against the accused was due to failure on his part to perform a duty, so that it could be inferred that he was responsible to break the positive duty. In that connection, it was necessary to enquire if as a man of ordinary prudence, he failed to take that much precaution which was required of him in the circumstances under which he was placed. A culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precaution to prevent their happening, It was then to be ascertained in the case of the accused if he was guilty of that culpable rashness and was conscious at all of the accident which was likely to arise at that part of the road. The finding of the learn-ed Magistrate on the question of rashness was decidedly in favour of the accused. It was held that the speed of the bus-trailer was not considerable. The question of speed by itself is a question relative to the circumstances made out in the case. What was the notion of the speed with the individual witnesses, who saw the movement of the vehicle, remained totally unexplained all throughout. In fact, all these witnesses did not even state during the investigation that the bus-trailer was going at a fast speed. On that ground perhaps learned Magistrate held that the bus-trailer could not be stated to be moving with a considerable speed. The fact was further clear from the statement of P. W. 3 by no means a witness less important, being the victim of the accident. He stated that the bus stopped then and there only. If the speed of the bus-trailer was not moderate or rather slow, how could it be stopped then and there only. Therefore, it could not be stated that the accused was acting with any consciousness that the mischievous and illegal consequences will follow namely, that the accident was likely to be caused. Therefore, the finding of the learned Sessions Judge that rashness too was proved in the case, cannot be sustained.
8. As o the other ingredient necessary for the offence, namely, a 'negligent act' on the part of the accused, in my opinion that finding too could be recorded in favour of the accused. The statement of P.W. 3 is again to be referred in that connection. He stated that no sooner he walked on the road from the foot path, he received the impact of the bus. As such, the statement of P.W. 5 was decidedly incorrect that P.W. 3 had travelled up to 5-6 feet and thereafter, he met the accident. According to P. W. 5, who was travelling in the bus, P.W. 3 was proceeding from west to east, which fact is again incorrect, because from the direction of Upparpet Police Station towards Balepet, the direction of P. W. 3 must be from east to west. As I have stated before, according to P.W. 3, the bus stopped then and there. It is manifest from all this that P.W. 3 committed the mistake, of not fleeing the approaching bus. He stepped down from the foot-path and dashed against the bus. The driver was not at fault, as he stopped the vehicle then and there and it could not be stated that he could have acted in any manner different to avoid the accident. The statement of P.W. 4 could be of no avail, because according to him, when he first looked towards P.W. 3, he had already received the impact and was lying on the road. Therefore, P.W. 4 was not in a position to state as to how the accident took place. According to P.W. 6 there was not a pedestrian crossing at that spot. It is, therefore, evident that the old person did not follow the rule of the road. He could have well crossed the road at the pedestrian crossing. He never did that and invited the accident.
9. According to P.W. 2, there was no mechanical defect in the bus-trailer. The learned Magistrate took exception, because the rear vehicle had no brakes. But P.W. 2 stated that the bus-trailer could be stopped by the assistance of brake in the front vehicle. On that basis, he stated that there was no mechanical defect in the bus-trailer. Therefore, the absence of brake in the rear vehicle was immaterial. The bus-trailer could be stopped and actually did stop then and there. Therefore, the circumstance regarding absence of brake in the rear vehicle could not be availed of by the learned Magistrate to infer negligence on the part of the driver. The very injury received by the old person could be caused by a fall on the road. That question was suggested to the doctor and he could not deny the probability. In a case where a pedestrian crosses the road and does not take care to see whether any vehicle or truck is coming along the road, so that he dashes against the bus or truck the driver may not be held guilty of negligence. This proposition of law 19 approved by their Lordships of the Supreme Court, although under different circumstances arising in the case, Mohanta Lal v. The State of West Bengal 1968 A.C.J. 124(SC). Similarly in the instant case, the old pedestrian crossed the road without attempting to take care to see the approaching bus with the consequence that he was knocked down by that bus.
As such, no case of criminal negligence could be inferred against the driver.
In this view of the matter, the finding as to rashness or negligence on the part of the driver was wrong and as such, the offence Under Section 279 I.P.C. was not made out. Similarly, the accused could not be punished Under Section 338 I.P.C. and the decisions arrived at by the two Courts below were decidedly incorrect. The petition is, therefore, allowed and the conviction and sentence of the petitioner-accused Under Sections 279 and 338 I.P.C., are set aside. If the petitioner has paid the amount of fine, the same shall be refunded to him.