B.K. Patra, J.
1. The petitioner, a motor driver, was prosecuted in the court of the Magistrate 1st Class, Nawarangpur on a charge under Section 304A I.P.C. and was convicted and sentenced to undergo R. I. for a period of 2 months and to pay a fine of Rs. 100 and in default to undergo R. I. for a further period of 15 days. His appeal was dismissed by the Sessions Judge, Jeypore.
2. The facts which are no more in dispute are that in the evening of 16-3-64 the appellant was driving an ambulance van bearing No. ORK 870 and was proceeding from Umarkote towards Jhorigam. The road is 24 ft wide of which the morrumed portion is 12 ft. at the centre. At a place near the village Mendhabeda. 3 women labourers were found proceeding on the right side of the road. On hearing the sound of the approaching vehicle, two of them crossed the road and went to its left side.
Immediately after, the 3rd woman, Guni Malliani turned to cross the road to its left side and seeing this the petitioner turned the vehicle to further left of the road obviously with a view to prevent it from running over the woman. But unfortunately. Guni Malliani dashed against the mud-guard of the vehicle, fell down on the road and died immediately thereafter. After the accident, the vehicle stopped at a distance of 20 ft. ahead from the place of occurrence. Information was lodged at the Thana the same evening and autopsy of the dead body was heldnext day. The doctor found as many as 12 injuries on the person of the deceased out of which, however, the most important are injuries Nos. 4 and 11.
Injury No. 4 is a bruise on the upper right of the abdomen and injury No. 11 is a bruise on the middle of the upper part of the left back. On dissection of injury No. 4 it was found that the lobes of the liver have been damaged and on the dissection of injury No. 11 fracture of the lower half of the right shoulder blade at 4 places and fracture of 6 ribs were found. The doctor was of the opinion that injuries Nos. 4 and 11 could be caused by a sudden dash of the vehicle or due to a fall on a hard substance like stone. He, however, opined that none of the injuries appears to have been caused as a result of the vehicle running over the deceased. In fact it is not the prosecution case that the deceased was run over by the vehicle.
3. Section 304A runs thus: '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.' According to the prosecution case, the rash or negligent act of the petitioner consisted firstly, in driving the vehicle at a high speed and secondly, in not blowing the horn. It is P.Ws. 2, 3 and 4 who say that the vehicle was running at a high speed, but what actually meant by high speed has not been clarified. These witnesses are illiterate village folk and one cannot depend on their conception of what high speed is to arrive at a conclusion that the petitioner was driving the vehicle rashly or negligently.
The investigating officer, P.W. 7 who reached the place of accident immediately after the occurrence found that the vehicle had stopped at a distance of 20 feet from the place of accident. On the basis thereof the Inspector of Motor Vehicles opined that the speed of the vehicle could not have been more than 16 miles per hour. P.Ws. 3 and 4 have deposed that there were stones on the road and this is a circumstance which makes it further improbable that the vehicle could have been running at a very high speed. These are the circumstances which ought to have weighed with the courts below to accept the testimony of the Motor Vehicle Inspector regarding the speed of the vehicle in preference to the testimony on this point given by unsophisticated villagers like P.Ws. 2, 3 and 4. That the driver had not blown the horn has been spoken by P.Ws. 2, 3 and 4 and the courts below have accepted that evidence. But it is clear from the testimony of the witnesses themselves that non-blowing ofthe horn was in no way responsible for the accident.
P.W. 2 who was one of the companions of the deceased stated that 'on hearing the sound of the vehicle, we crossed the road to the left side'. P.W. 3 deposed that 'people knew that the vehicle was coming from its sound. Two of them crossed the road and the 3rd was hit while coming'. P.W. 4 who was walking at a short distance behind the unfortunate woman stated, 'we could know the coming of the vehicle from behind even when the vehicle was at a long distance.' The purpose of blowing a horn is only to make the people aware that a vehicle is coming from behind but in this case, it is clear that non-blowing of the horn was of no consequence because from the sound of the vehicle people knew that a big vehicle was coming from behind.
4. Rash or negligent act referred to in Section 304A, means an act which is the immediate cause of death and not an act or omission which can at best be said to be a remote cause of death. This section is correlative with Sections 279 and 338 I.P.C. Section 279 applies to the driving of any vehicle, or riding, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any person where no hurt has actually been caused. Section 338 applies to a case where grievous hurt has been caused to any person by an act being done so rashly or negligently as to endanger human life or the personal safety of others. Section 338 is more general than S. 279 and embraces not only the act of driving or riding but all acts which endanger human life or personal safety. Section 304A while being as general as section 338 is restricted to cases where death has been caused.
5. In a recent decision of the Supreme Court reported in AIR 1968 SC 829 Suleman Rahiman Mulani v. State of Maharashtra, their Lordships held that the requirements of this section (Section 304A) are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words there must be proof that the rash or negligent act of the accused was the proximate cause of death. There must be direct nexus between the death of a person and the rash or negligent act of the accused. What happened in that case was that a person who possessed only a learner's licence was driving a jeep which struck against a person on the road as a result of which the latter sustained serious injury and died shortly thereafter. He was convicted in the trial court and the High Court held that the very fad that the person concerned was holding only a learner's licence implied that he did not know driving and must be assumed to be incapable of controlling the vehicle. If such a person drives a car or a vehicle on a public road, he obviously does an act which can be said to be rash or negligent as contemplated by Section 304A I.P.C.
Their Lordships of the Supreme Court observed that even assuming that the High Court is right in its conclusion that the appellant had not acquired sufficient proficiency in driving and was, therefore, guilty of rash or negligent act in driving the jeep, that by itself is not sufficient to convict him under Section 304A, I.P.C and that the prosecution must go further to prove that it was that rash or negligent act of his that caused the death of the deceased.
6. As I have pointed out before, non-blowing of the horn, having regard to the evidence in this case, was not of any material consequence. It is on hearing the, sound of the approaching vehicle that the three women who were proceeding on the right side of the road, for reasons best known to them, decided to cross the road and go over to the left side. Two women including P.W. 2 crossed the road before the vehicle reached the spot. P.W. 4 says that 'as the two women went, the 3rd (deceased) also began to run by which time the vehicle was quite near. Accused also turned the vehicle further left and even then there was a dash.'
P.W. 3 stated that on seeing the deceased coming the petitioner turned the vehicle further left. It is, therefore, clear that it was the belated attempt of the deceased to cross the road which resulted in this unfortunate accident. The driver, far from being rash or negligent, made a desperate attempt to prevent the vehicle from running over her and turned it further to the left. By that time the woman had come very near to the vehicle and instead of being run over by the vehicle, she dashed against the mud-guard and fell down on the road. There was no mechanical defect in the vehicle. The driver had applied brake in time and in fact the vehicle stopped at a distance of 20 feet from the place of occurrence. In the circumstances, I am satisfied that the petitioner was not guilty of any rash or negligent act.
7. I would accordingly allow this revision, set aside the conviction of the petitioner and the sentence imposed on himand direct that he be set at liberty forthwith. The fine, if any, paid by him shall berefunded. While admitting this revision, arule had been issued to the petitioner toshow cause why the sentence should notbe enhanced. In view of my findingabove, this rule is discharged.