A.H. Khan, J.
1. The Additional District Magistrate, Morena, convicted the accused under Section 304A of the Indian Penal Code and sentenced him to eight months' rigorous imprisonment. On appeal this decision way confirmed. Now the accused has filed this revision.
2. The facts of the case are that the petitioner, who is a truck driver was bringing his truck on 30th November 1954 at about 2 p.m. from Morena towards Lashkar. Since the road was clear, he was driving the truck on the right hand side. From the opposite side, one Patiram was coming on a bicycle at the back of which one Swaran Singh was sitting on a carrier. . Seeing the cyclist approach from the opposite direction, the truck driver turned his truck to the left, but it seems that the cyclist turned in the same direction.
There was no head-on collision, but all the same the cyclist collided against the side of the truck. As a result of this, of the two persons On the bicycle cyclist was thrown away. The person, who was riding the cycle escaped with minor injuries but the person sitting on the carrier fell down and sustained injuries on his head which eventually proved fatal and he died.
3. It is admitted that the accused was driving the truck outside Municipal limits (on the road between Morena and Banmore) on the wrong side of the road i.e. the truck instead of being driven on the left side of the road was on the right side of it. The driver saw the cyclist coming from the opposite direction, and, so he turned the vehicle to the left side of the road, which was the proper thing to do. But the cyclist, seeing that the truck was on wrong side, turned to his right side.
There was no head-on collision, but it seems that the cyclist dashed against one side of the truck. From the statement of Patiram complainant, it appears that there were two persons on the bicycle, and that the brakes of the bicycle were out of order as well. To me it seems that both the driver of the truck and the cyclist tried to avoid each other, but the brakes of the bicycle which were out of order, are mainly responsible for the rueful consequences in this case,
4. According to Section 304A, I. P. C., when death is caused by doing any rash or negligent act not amounting to culpable homicide, it is punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both. In consequence the point to be determined in this case is--was the act of the truck driver rash or negligent?
5. Rashness means doing an act with the consciousness of a risk that evil consequence will follow but with the hope that they will not. And negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are the determining factors. According to Russel on Crime (1950 Edition) page 641, there must be mens rea in the criminal negligence also. The learned author has said that Judges have used many epithets to describe negligence, such as 'Culpable', 'Criminal', 'Gross', 'Wicked' or 'Complete negligence', 'But whatever epithet be used...........in order to establish criminal liability the facts must be such that the negligence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime'.
6. Judging by the above standard, there can be no negligence in this case because of want of mens rea and also because the truck driver did not only show disregard for life or safety of others, but as a matter of fact he tried to avoid a head-on collision by going over to the other side of the road.
7. It is not a rashness or taking the risk, because the truck driver realising the danger, tried to avoid the risk, had already turned to the left side. His rashness ceased the moment he had come on the left side. On a review of the evidence in the case, I am of the opinion that it was the faulty condition of the bicycle brakes, that brought about this mishap. It may also be noted that the cyclist himself escaped with minor injuries, but unfortunately it was the pillion rider, who fell down and sustained serious injuries. The pillion rider did not hit the truck. In such cases, one should avoid being influenced by the misfortune arising out of the loss of a life which is a prominent feature in accident cases.
8. For reasons stated above, I do not hold theaccused guilty and setting aside his conviction andsentence, he is acquitted of an offence under Section 304A of the Indian Penal Code.