1. This is an appal against the acquittal of the respondent Bhawanesh Kumar by the Magistrate, 1st Class, Kawardha, of offences tinder Sections 304A and 338 I P. C. The charges on which he was tried were that he on or about the 13th January 1956 at Singhori village caused the deaths of Raheman Khan, Sheonarayan & Jehan by doing a rash and negligent act not amounting t0 homicide (i. e. by driving vehicle no. M. P. B. 463 rashly and negligently and without a licence, which ultimately resulted in the death of the aforesaid persons) and thereby committed an offence punishable under Section 304A of the Indian Penal Code and secondly on the same day at the same place caused grievous hurt to Sukhao by doing an act (driving truck No. M. P. B. 463) so fastly and negligently as to endanger human life or the personal safety of others and thereby committed an offence under Section 338 of the Indian Penal Code.
2. The accused-respondent Bhawanesh Kumar is the Sub-Divisional. Officer (Electrical and Mechanical) at the Sarodha Head Works. As part ofhis official duty he has to attend to and test all the vehicles both heavy and light and to maintain them in proper running conditions. D. W. 1 Jabbar tells us that the accused was in charge of the workshop and that no driver was appointed without a test held 'by him. He further says that the accused had been testing and driving the motor vehicles for the last 1 and l 1/2 years past and that he was an experienced motor driver. It is also a fact that he had no driving licence.
3. The facts of the case which are not in dispute may shortly be stated as follows : On 13-1-1956 the accused was driving a motor truck no. M. P. B. 433 of the Sarodha Head Works on the Bemotara-Durg road. Near the village Singhori, which is at a distance of one mile from Bemotara, the road takes a turn towards the right. There is a culvert bridge at this turning. After the truck had negotiated the aforesaid bend the driver of the truck saw a buffalo-cart in the middle of the road in front of him. The cartman (P. W. 12) admits that he was driving in the middle of the road. He also admits that the baffaloes had no nose-strings and that children were travelling in the cart.
4. It may also be noted that there is overwhelming evidence that the road on the left had a slope and there were a few small & big ditches on that side. (See the evidence of Shivprasad (P. W. 1), Lallaram (P. W. 2), Mohammad Hanif (p. W. 4) and Shri M.B. Khan (P. W. 5).
5. The evidence also shows that the speed of the truck after it had negotiated the bend at the culvert was not excessive. (See the evidence of Marotirao (P. W. 3), Mohammad Hanif (P. W. 4), Ramjhan Khan (P. W. 6) and Samelal (P. W. 8) ). According to the evidence of Marotirao (P. W. 3) who was a passenger in the fatal truck and Was a driver himself, the speed of the truck was about 15 to 20 miles per hour. This also appears reasonably probable because one naturally slows down when passing a bridge and a culvert especially when there is a somewhat sharp bend there which in the instant case was, according to the map Exh. P. 13, about 120.
6-7. Mohammad Hanif (P. W. 4) was the conductor travelling in the truck and Ramjhan Khan (P. W. 6) was a passenger in it. They state that on sighting a buffalo-cart in front, the accused blew the electric horn. Mohammad Hanif is not very clear how and why the truck overturned but he states,
'Turning back we looked why the horn was sounded, thereon we saw a buffalo-cart in front of the truck. AS THE vehicle went ahead the buffalo-cart came towards us. Whereupon the truck turned towards left and all of sudden overturned.'
His evidence shows that probably the driver wanted to overtake the cart from the right when the buffaloes also swerved to the right whereupon in order to avoid a collision with it, the driver had to pass it from the left.
(His Lordship further reviewed the evidence and continued).
8. The evidence thus clearly indicates that on sighting the buffalo-cart which was op. the middle of the road (more on the wrong side i. e. on the right side of road), the driver blew the horn and wanted to overtake it from the right when the cart also swerved towards that side and consequently in order to avoid a collision the driver attempted to overtake the cart from the left side and while so doing as the cart swerved fowards the truck he had partly to go off the road towards the slope where it got tilted and on the applicationof the brakes to avoid getting into a ditch overturned, it may also be noted that the truck was mechanically perfect.
9. The defence of the accused as disclosed in his examination under Section 342 of the Code of Criminal Procedure is :
'I had not driven the truck negligently. As the truck crossed the turning buffalo (sic) was coming before it. It was on the middle of the road. I blew the horn. Thereafter the cart started more towards right side. There was basti on that side. Prom it I thought that the cart was going in the basti, so I tried to take the track from left side. Whereupon the buffaloes got startled and came before it. There were some persons in the cart, in order to save them I brought down the truck, where upon the truck overturned.'
Giving further details the accused in the Written statement says:
That on the alleged date of incident, when the accused started from Bemetara driving the truck in question he saw a buffalo cart going towards mouza Shighori. The buffaloes had no nose strings etc. There were 3 or 4 persons sitting in the cart including some children. When the truck was at a distance of about 3 or 4 yards from the cart, the cart turned towards the right side of the road. On the right side of the road is the Basti of village Singhori.
The accused therefore thought that the cart would go into the basti and he drove the truck by the left of the road. But as soon as the truck came close to the cart the buffaloes seemed to have got scared by the sound of the truck and almost ran into it. In order to arrest any collision the accused had to take the truck still to the left side and consequently the left wheels of the truck went off the road on the unmetalled portion which is slopy.
The truck tilted to the left. If brakes had been applied abruptly, there was likelihood of the truck turning turtle. The truck could not be brought on the metalled portion of the road as the buffalo cart was running almost parallel to the truck on the unmetalled slopy portion of the road. The truck could not be taken down the road safely as there were a number of ditches on the left side of the road. The accused therefore very slowly and carefully took the truck to some distance avoiding these ditches on the left and the cart on the right but just in front of the strip along which the truck wag going was a big ditch.
To avoid this the accused had to turn the truck to the right to take on the road, and also to apply the brakes to avoid the ditch. While-doing so the truck lost its balance and up-turned. This was all purely accidental. Faced with the emergency as stated above he had to make every effort to avoid collision with the buffalo-cart and also the ditches and in doing so the truck got unbalanced due to steep gradient up-turned.'
10. The question therefore arises whether-on the aforesaid facts the conduct of the accused can be said to be 'rash Or negligent' within the meaning of Section 304A I. P. C.
11. The trial judge held that no inference of rashness or negligence can be inferred from the mere non-possession of a driving licence. He further held that in taking his truck to the left of the road, the accused committed no breach of any road regulation as the cart was going along the middle of the road and when the accused gave the horn, it turned to the right side of the road, thereby in-dicating its assent to be overtaken from its left side.
In its opinion the driver was not negligent in not pulling up the brakes and bringing the truck to rest on the slopy portion of the road. He held that the unfortunate result was due neither to any mechanical defect or break-down of the vehicle nor due to excessive speed but due to the peculiar situation of the road at the place of the incident. coupled with the sudden intrusion of the cart on the side of the truck is (sic-in) circumstances unforeseen or never intended by the accused.' In the result, he acquitted the accused of the offences charged.
12. We have to bear in mind that we are dealing with an appeal against an acquittal and consequently though we have full power to review at large the evidence upon which the order of acquittal is founded, as laid down by the Judicial Committee of the Privy Council in Shea Swarup v. King-Emperor, ILR 56 All 645 at pp. 651-52: (AIR 1934 PC 227 (2) at pp. 329-30) (A) We have to give Proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.
13. The learned counsel for the State contends :
(1) that the finding regarding the speed of the vehicle being not excessive is erroneous;
(2) that from the fact that the accused did not possess a driving licence, the inference was irresistible that in driving a heavy vehicle like a truck his conduct was rash or negligent; and
(3) that the accused was rash or negligent in overtaking the buffalo-cart from the left side and in not halting the vehicle before attempting to overtake the cart from the left in the peculiar circumstances of the case and the position of the road.
14. There is overwhelming evidence that the speed of the truck was not excessive. Besides that it was not excessive is a finding of fact based on the credibility of witnesses with which We agree and consequently there is no merit in the contention that the finding of the learned Judge Magistrate on the question of the speed of the fatal truck is erroneous.
15. We are equally clear that from the mere fact that the accused-respondent did not possess a driving licence, it cannot be positively inferred that he was guilty of rashness or negligence in driving a heavy vehicle like a truck. There is the evidence of Jabbar (D. W. 1) which shows that the accused is in charge of the Sarodha Head Workshop and he has been testing and driving motor vehicles for the 11/2 years. According to him, he is an experienced motor driver, and consequently there is nothing to show that in undertaking to drive a heavy motor vehicle like a truck he was undertaking a risk for which there was no justification whatsoever.
Whether he drives a vehicle with a licence or without a licence, the law expects him to be neither rash nor negligent in the performance of his task and we will judge his conduct in the matter as if he were the most qualified driver who brings tohis task the ordinary reasonable competency ofpersons driving heavy motor vehicles.
16. The third contention is the only contention that requires consideration. Section 304A and Section 338 of the Indian Penal Code provide:
'394-A: 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.'
'338: Whoever caused grievous hurt to any person by doing any act so rashly or neligently as to endanger human life, or the personal safety of others shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.'
Under both the sections the gravamen of the offence consists in the conduct of the accused being either 'rash or negligent.' Though the words used in both the sections are 'rash' and 'negligent' simpliciter, the fact that we are considering their connotation with reference to the law of crimes, indicates that that degree of rashness or negligence will have to be proved which will make it safe for us to infer that the conduct of the accused which is complained of is a crime.
17. In English law the concept of Section 304A I. P. C. viz, 'causing the death of a person by doing rash or negligent act not amounting to culpable homicide' is called manslaughter by negligence. Explaining the connotation of the word 'negligence' in relation to crimes, Lord Hewart C. J. in R. V. Batteman, (1925) 19 Cr App Rep 8 (B) at P. 10 says:
'In expounding the law to juries on the trial of indictments for manslaughter by negligence, Judges have often referred to the distinction between civil and criminal liability for death by negligence. The law of criminal liability for negligence is conveniently explained in that way. If A has caused the death of B by alleged negligence, then, in order to establish civil liability the plaintiff must prove (in addition to pecuniary loss caused by the death) that A owed a duty to B to take care, chat that duty was not discharged, and that the default caused the death of B. To convict A of manslaughter, the prosecution must Prove the three things above mentioned and must satisfy the jury, in addition, that A's negligence amounted to a crime. In the civil action, if it is proved that A fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In the criminal court, on the contrary, the amount and degree of negligence are the determining questions. There must be mens rea ....... In explaining to juries thetest which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used epithets such as 'culpable', 'criminal', 'gross', 'wicked', 'clear,' complete'. But, whatever epithet he used and whether an epithet be used or not. In order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects & showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment ...... It is desirable that,as far as possible, the explanation of criminalnegligence to a jury should not be a mere question of epithets. It is, in a sense, a question of degree, and it is for the jury to draw the line, but there is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime.'
Of this statement of the law the House of Lords in Andrews v. Director of Public Prosecutions, 1937 AC 576 at P. 583 (C) said :
'Here again I think with respect that the expressions used are not, indeed they probably were not intended to be, a precise definition of the crime. I do not myself find the connotation of mens rea helpful in distinguishing between degree of negligence, nor do the ideas of crime and punishment in themselves carry a jury much further in deciding whether in a particular case the degree of neglignece shown is a crime & deserves punishment. But the substance of the judgment is most valuable, and in my opinion is correct. In practice it has generally been adopted by judges in charging juries in all cases of manslaughter by negligence, whether in driving vehicles or otherwise. The principle to be observed is that cases of manslaughter in driving motor cars are but instances of general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute Civil liability is not enough: for purposes of the criminal law there are degrees of negligence : & a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'reckless' most nearly covers the case. It is difficult to visualise a case of death caused by reckless driving in. the connotation of that term in ordinary speech which would not justify a conviction for manslaughter: but it is probably not all-embracing, for 'reckness' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction. If the principle of Beteman's case (1925) 19 Cr App Rep 8 (B) is observed it will appear that the law of manslaughter has not changed by the introduction of motor vehicles on the road. Death caused by their negligent driving, though unhappily much more frequent, is to be treated in law as death caused by any other form of negligence: and juries should be directed accordingly.'
These obesvations were again reiterated by the Court of Criminal Appeal in R. v. Bonnyaman (1942) 28 Cr App Rep 131 (D) .
18. It is also well established that the words 'rashness' and 'negligence' in relation to crimes have a well-marked distinction. Contrasting the concepts, Holloway and Kindesley JJ. in In re. Nidamarti Nagabhushanam, 7 Mad HCR 119 (E) stated:
'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 precautions to prevent their happening. The imputabillty arises from acting despite the consciousness (luxuria). Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. The imputability arises from the neglect of the civil duty of circumspection.'
19. Straight J. in Empress of India v. Idu Beg,ILR 3 All 776 (F) at pp. 779-80, put the matter thus:
'...... criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and pioper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all thecircumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.'
In overtaking the buffalo-cart from the left, the accused was not taking a risk with a recklessness or with an indifference as to the consequences. In driving a mechanically propelled vehicle, which has now become an indispensable part of our civilization, the driver has most often to take a decision in a split second. He has to intelligently anticipate what the other user of the road is intending to do and regulate his conduct accordingly. If the other person has made a mistake that does not absolve him from the consequences of his act. In criminal law contributory negligence is no defence for, as observed by Pollock C. B. in Reg V. Swindall, (1846) 2 Car & Kir 230 (G), 'so highly does the law value human life, that it admits of no justification wherever life has been lost & the carelessness or negligence of any one person has contributed to the death of another person.' Consequently all we have to see is whether the accused acted rashly irrespective of the fact whether the cartman also contributed to the accident and judging his conduct, by the standard of an ordinary 'reasonably careful driver, we do not find that placed in the circumstances he was, he acted rashly, much less was his rashness of such a degree as to amount to a crime. Similarly, there was no criminal neglect or failure to exercise that reasonable and proper care that the circumstances of thecase demanded.
20. In our opinion, placed in the situation he was, the accused did not act unreasonably in overtaking the cart from the left. While doing so if the cart swerved again towards the left, he had no option but to go still more to the left. Unfortunately, the road there was sloping but given some distance in which to manoeuvre the truck back on to the road again, he may have succeeded in coming back to the road and to comparative safety. But before he could come on the road he had to steer clear of a ditch which he found in front of him, and in order to avoid it, he applied the brakes which involved the truck into an accident. May be, if the accused had pulled up his truck before overtaking the cart, the accident may not have happened. But it is always easy to be wise after the event and condemn as negligence what was only a misadventure & besides, 'a mere mistake', 'intellectual defect' is not sufficient to constitute criminal rashness or criminal negligence in law. 'There must be' in the words of O'Brien J., in B. v. Elliott. (1889) 16 Cox CC 710 (H). 'a wilful and forward confidence in his own opinion which was contrary to all reason and experience.' Of this there is no evidence in the case.
21. In our opinion, 'rashness' or 'negligence' sufficient to warrant a conviction either under Section 304A or under Section 339 I. P. C. has not been established, and the accused-respondent was rightly acquitted.
22. The appeal fails and is dismissed.