R.L. Narasimham, C.J.
1. This is a petition, in revision, against the appellate judgment of the Additional Sessions Judge, Ganjam-Boudh, maintaining the conviction of the petitioner under Sections 279 and 337, I. P. C. passed by a First Class Magistrate of Boudh, but slightly modifying the sentence.
2. The petitioner was the driver of a public bus No. O. R. C. 2114 plying between Daspalla and Boudh. At about 9-45 A.M. on 9-5-1955, there was a collision between the petitioner's bus on the one hand and a private car No. O.R.R. 2 belonging to Sri G. C. Roy, Deputy Superintendent of Railway Police, Cuttack, on the other at the 85th Milestone from Boudh on the Daspalla road. The petitioner's bus was proceeding towards Daspalla whereas Mr. Roy's car was proceeding from Daspalla towards Boudh. In consequence of the collision the car was more badly damaged than the bus and some of the inmates of the car, including Mr. Roy, sustained severe injuries.
3. The case was started on the basis of a written report sent by Mr. Roy to the A. S. I. in charge of Arni Chat (vide Ext. 8). Mr. Roy alleged that as the road was zig-zag at the spot he slowed down the speed of his car to 15 miles an hour and sounded the electrical horn but the bus O.R.C. 2114 came from the opposite direction at great speed and though he brought the car to standstill by applying the brakes the bus did not stop and collided with the car. He further stated that he was proceeding on the extreme left of the road and there was ample space on his right for the bus to pass through. Hence, he charged the petitioner with rash and negligent driving.
During trial also he put forward a similar case and sought support for the same from the evidence of two occupants of the car, namely Dasarath Naik (P.W. 2) and Anantha Naik (P.W. 3). But the evidence of these two witnesses is rendered weak because earlier during police investigation they stated they could not hear the sound of the horn of the car, that the driver of the bus was sounding his horn frequently and driving his vehicle at normal speed, and that though the bus was stopped it was the car which collided with the bus. Hence their belated evidence in court cannot have much value as corroborating that of Mr. Roy; and as Mr. Roy is a highly interested party, his evidence cannot be fully accepted -- without adequate corroboration.
4. But the map (Ext. 25) prepared at the spot by the Investigating Police Officer (P.W. 12) coupled with the evidence of the Motor Vehicles Inspector (P.W. 5) leaves no room for doubt that the accident was due to the rash and negligent driving of the petitioner. Exhibit 25 was prepared at the spot by P.W. 12 on 12-5-1955. Till then the damaged vehicles were kept at the spot and guarded by the police. That map shows that the road was zig-zag for some distance both in front and behind the actual place where the accident took place.
It further shows that there was a small hillock on the left side and the accident took place almost at the crest of that hillock. The car was on the left side of the road, leaving a space of nearly 10 feet on its right side. The bus however was on the right side of the road leaving a gap of nearly 10 feet on its left side. There is thus no doubt that the car was coming on the proper side whereas the bus was coming from the opposite direction on the wrong side.
The width of the bus is only 7 feet 6 inches and as there was a space of more than 10 feet on the left side the bus could easily have avoided the accident if it had travelled on the left side of the road. It is further admitted that sometime after the accident another bus known as the 'Sinha bus' came there and took the injured persons and passed along the road on the left side. Hence the argument of Mr. Misra for the petitioner that the earth on the left side was somewhat loose and it was risky for a bus to pass through by that side, cannot be accepted.
5. The evidence of the Motor Vehicles Inspector (P.W. 5) gives some idea as to the respective speeds of the vehicles just before the accident. There was a skid mark of the bus for a distance of about 18 feet and hence he estimated the speed of that vehicle at between 20 and 25 miles per hour. He did not notice any skid mark of the car but as there was a reaction of 1 ft. 6 in. on the front wheel he estimated the speed of the car at between 25 and 30 miles per hour. He also found the brakes of both the vehicles to be in perfect order and it did not appear to him that the brakes of the car were applied at all.
He further supported the observations made by the Investigating Police Officer by saying that at the place of accident the car was on the right side of the road whereas the bus was lying on tbe wrong side of the road. The Section Officer P.W.D. (P.W. 4) who went to the spot with the police party on the date of the accident namely 9-5-1955 has stated that there was a boulder on the left side edge of the road from Bondh at a distance of 15 to 20 cubits ahead of the bus though it was not obstructing the traffic.
6. On the facts as stated above (which are proved beyond reasonable doubt) it is clear that the petitioner was mainly responsible for the accident. As the road was admittedly zig-zag near the place of the accident, be ought to have slowed down the speed of the bus so as to be able to stop it at a moment's notice. Moreover the road was going up the hill till the place of accident and the visibility in front of him must necessarily have been limited. When a heavily loaded bus is driven across a zig-zag road, up a hill prudence requires that he should reduce the speed considerably so as to be able to stop the vehicle at a moment's notice.
He could not obviously see far ahead of him and he must reasonably anticipate that some other vehicle may appear suddenly in front of him from the opposite direction. Moreover, he should not have driven the bus on the right side of the road. The map (Ext. 25) shows that the main portion of the road (excluding the flanks) was nearly 18 feel at the spot. The bus was on the extreme right leaving a gap of about 10 ft. on the left side. If the vehicle had been driven slowly and cautiously on the left side of the road, with the horn blowing repeatedly, the accident could have been avoided. In the circumstances of this case, therefore, I must hold that the petitioner was rash and negligent.
7. Mr. Misra, on behalf of the petitioner urged that merely because the bus was seen on the wrong side of the road, it should not be held that the driving was rash or negligent and in support of this argument he relied on Ram Sewak v. Emperor, AIR 1933 Oudh 391, F.G. Robson v. Emperor, AIR 1934 Rang. 194 and Emperor v. Homnarain, AIR 1934 Nag 65. It is true that the usage of the road is not the sole criterion for determining negligence and there may be instances where even though the vehicle was found in the wrong side of the road the driver had taken appropriate precautions and exercised due care and diligence.
Thus, in the Rangoon case the driver drove the vehicle slowly and repeatedly gave his signal to the other party who, in spite of that signal, failed to exercise proper care and caused the accident. In the Nagpur case the driver was compelled to take the wrong side of the road because a stationary lorry was blocking his path on the left side.
In the Oudh case also it was pointed out that the road where the accident took place was as open road, that the speed of the vehicle was not excessive and that taking all the circumstances into consideration the mere fact that the vehicle was in the wrong side was not sufficient to show that there was rashness and negligence in driving. In the instant case, however, in view of the admitted facts that the road was zig-zag, that the bus was going up a hill and that the driver could not see far in front of him it must be held that the speed at which the vehicle was being driven was excessive.
8. Mr. Misra then relied to some extent on the opinion of the Motor Vehicles Inspector to the effect that no brake was applied to the car just before the accident. On the basis of this opinion he urged that it was the car which was driven at excessive speed. But this argument cannot stand because the doctrine of contributory negligence has no application in criminal law and even if P.W. 1 drove his car at some speed at the spot, that would not justify the action of the petitioner in driving a heavily loaded bus on tbe wrong side of the road and at that speed. P.W. 1 was careful enough to drive on the left side of the road and be could not anticipate that the bus would come from the opposite direction with nearly the same speed on the wrong side of the road.
9. There is some discrepancy between the map Ext. 25 as prepared by the S. I. of Police (P.W. 12) on 12-5-1955 and the map prepared by the Motor Vehicles Inspector (Ext. 10) some time later. But the map of the Motor Vehicles Inspector is admittedly inaccurate. It does not show the directions and it shows the hillock on the right side of the road from Boudh side whereas admittedly it is on the left side. The Motor Vehicles Inspector admitted that he prepared a rough sketch map at the spot and then got a fair copy made at his residence.
The rough sketch was not proved in the case and in any case there can be no doubt that the so called fair map (Ext. 10) has been prepared with gross negligence. I cannot imagine how a Motor Vehicles Inspector could prepare a map showing the hillock on the wrong side of the road and also omitting to give the directions in the map itself. Moreover, the distances between the car and the bus on the one hand and the two ends of the road as given in the map (Ext. 10) do not tally with those distances as shown in Ext, 25 prepared by the S. I. of Police.
The trial Court was justified in preferring the map of the S. I. not only because it was prepared at the spot a few days earlier than Ext. 10 but also because from a look at the same it is clear that it was prepared with care and the distances have been given accurately. The Motor Vehicles Inspector appears to have depended too much on his memory. He was declared hostile and cross-examined by the prosecution. But the essential part of his testimony dealing with hi? estimate of the relative speeds of the two vehicles seems acceptable.
10. The petitioner was rightly convicted andthe sentence has been rightly reduced by the lowerappellate court. There is no justification for further reduction of the sentence. The convictionand sentence are maintained and the revision isdismissed.