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Verghes Cheriyan Vs. Sirkar Prosecutor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala
Decided On
Judge
Reported inAIR1950Ker14; 1950CriLJ658
AppellantVerghes Cheriyan
RespondentSirkar Prosecutor
Cases ReferredIn Ghacko John v. Sirkar
Excerpt:
- - we are definitely of the view that even if the accused failed to swerve the car to the right, he could not be blamed because having regard to what happened, he could not suddenly take a decision as to what course he should adopt without danger to the oar and the persons inside the oar in ghacko john v. the driver could not have by any degree of circumspection foreseen this contingency and in the sudden and unexpected manner in which sridharan pillai ran across the road, the driver could not have done anything better than what he did to save the man......down the man if he had swerved to the right, the learned judge of the court below held that the accused driving as he did as such speed in dangerous proximity to the moving pedestrain was acting both rashly and negligently with fatal consequences to sridbaran pillai. sridharan pillai was aocording to the jude frightened by the car with bright headlights coming towards him not leaving sufficient space on the eastern edge of the road for him to pass without danger to him.5. the raeh and negligent act attributed to the accused therefore is that he drove at a high spaed without leaving sufficient space for sridharan pillai to stand on the eastern side of the road without fear of danger to him. to drive a car at a speed of 20 to 22 miles per hour on a straight road without any traffic.....
Judgment:

Govinda Menon, J.

1. This appeal is filed by the accused in sessions Case no. 13 of 1124 on the file of the Alleppey Sessions Court. He was-driving a motor car registered as C. S no. 2556' on the night of 10-7-1122 along the Aroor-Alleppey road and at about 8-Bo P.M. the oar ran over one Sridharan pillai who died as a result of the injuries sustained by him. He was, therefore, charged with the offences of having driven1 a motor vehicle on a public way rashly and negligently so as to endanger human life and of having oaused the death of Sridharan Pillai by his rash and negligent act of driving. These ar& offences falling under S3.377 and 304, Travancore Penal Code. The appellant was found guilty under both the sections and he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 50. This appeal is filed against the said conviction and sentence.

2. The oar was proceeding north to south on a straight road and Sridharan Pillai was coming in the opposite direction. There was not on the road at that time any other vehicle or pedestrian. The driver saw him first at a distance of about one furlong and at the sound of the horn he moved to his right on the extreme eastern edge of the road. The car was keeping to the correct side close to the eastern extremity of the road leaving only a space of about one and a half feet of the road on the eastern side. The space on the eastern side was an open lawn on the same level as the road. When the car approached the mun at a distance of about ten feet, he out across to the western side of the road and dashed against the head light and the-bumper on the left side of the oar and was run over by the car. He sustained as many as eleven injuries. Both the legs on the lower part were fractured. There was a very serious fracture of the skull. He was taken to Alleppey in the same oar, but ho died on the way before the oar reached the hospital. The accused then proceeded to the Police Station to make a report of the occurrence and his statement Ex. J was recorded by the Police at about 11-16 p.m. On the next day the inquest was held over the dear} body and Ex. A is the report. P.W. 3 the medical officer conducted the autopsy and he issued Ex. F post-mortem certificate describing the internal and external injuries on Sridharan Pilial.

3. The accused at the trial pleaded not guilty and stated that he had no reason to expect that Sridharan Pillii who was keeping to the extreme edge of the road for about a furlong after he was first seen on the road, would suddenly and so close to the oar, at a distance of about eight feet, attempt to cross to the western Bide of the road and that the running over was purely an accident which he could not possibly have avoided. This plea of the accused wag substantially supported by the version of the persons who were inside the car at the time of this occurrence and who were examined as prosecution witnesses Nos. 5, 9 and 10. The learned Sessions Judge believed these witnesses and recorded the following findings: (1) The accused was driving the car at about 20 to 22 miles par hour at the time of the occurrence; (2) The accused was then driving it along the eastern side of the road about 1 to 1 $ feet removed to the west from the eastern extremity of the road; (3) Sridharan Pillai was first sighted by the accused at 1 1/2 furlongs distance from the car, proceeding north from south along the centre of the road ; (4) The accused sounded the horn and Sridharan Pillai removed to the eastern side of the road and proceeded along by that side of the road; (6) Accused continued keeping to his course hardly 1 to 1 1/2 feet removed to the west from the eastern extremity of the road and he went without slackening speed even after Sridharan Pillai was sighted. (6) There was no vehicle or passenger traffic at the time on the road, which was 16 feet wide, (7) The deceased Sridharan Pillai unexpectedly cut across the track just when the oar was about 10 feet away from him and was knocked down and run over.

4. The only part of the above findings which is against the accused is that he dil not slacken the speed even after Sridharan Pillai was seen on the road at a distance of 1} furlongs and that the oar left only a space of about 1$ feet on the eastern edge of the road. P.W. 8 the Traffic Inspector of Police gave evidence that although the brakes of the oar were in a sound condition, the accused could not have brought the oar to a stop by applying the brakes without moving for more than thirty feet even after the application of the brakes. He however stated that the accused could have avoided knocking down the man if he had swerved to the right, The learned Judge of the Court below held that the accused driving as he did as such speed in dangerous proximity to the moving pedestrain was acting both rashly and negligently with fatal consequences to Sridbaran Pillai. Sridharan Pillai was aocording to the Jude frightened by the car with bright headlights coming towards him not leaving sufficient space on the eastern edge of the road for him to pass without danger to him.

5. The raeh and negligent act attributed to the accused therefore is that he drove at a high spaed without leaving sufficient space for Sridharan Pillai to stand on the eastern side of the road without fear of danger to him. To drive a car at a speed of 20 to 22 miles per hour on a straight road without any traffic vehicular or otherwise, cannot be said to be a rash act of driving. Sridharan Pillai was the only pedestrian on the road and he responded to the horn sounded by the accused and ha moved to the eastern extremity of the road. Until the car went near by ten feet, for all the distance of about one and a half furlongs the man was keeping to the eastern edge of the road and the driver had no reason to expect that the man would cut across the road to avoid danger to himself, when on the eastern side, there was sufficient space at the same level for him to move to, if he feared that the car was coming at dangerous proximity to him. There is evidence in the case that until about three months before the occurrence, Sridharan Pillai was afflicted by some sort of a mental disorder and it was argued by the learned advocate for the appellant that the attempt of Sridharan Pillai to save himself from being knocked down by the car by running across the track of the car when there was sufficient open space on the other side was the result of the mental disorder of which he could not have been completely cured. It is not unreasonable to suppose that a man in normal senses would not have rushed in front of the car when there was enough space on the other side of the road.

6. It is now necessary to consider whether the accused in driving the car at a speed of 20 to 22 miles per hour leaving only a space of about one and a half feet on the extreme eastern side of the road was acting rashly and negligently so as to endanger the life of Sridharan Pillai. Culpable rashness is often explained as acting with the consciousness that dangerous consequences wil follow, but with the hope that they will not follow and with the belief that the actor has taken sufficient precautions to prevent the happening of such consequences. Similarly culpable negligence is acting without the consciousness that dangerous consequences will follow, but in circumstances which show that the actor has not exercised the caution that was incumbent on him. The imputability arises from the neglect of the duty of circumspection. It is difficult to suppose that the accused had the consciousness that if he went at close proximity to the pedestrian be would out across the road and not to the other side to save himself from danger. If therefore the pedestrian cut across the road, it was what the driver could not have expected and the learned Judge has also found that Sridharn Pillai out across the road 'unexpectedly'. This finding therefore excludes the consciousness on the part of the driver that any dangerous consequence will follow by driving the car in the manner he did. The next question which arises for consideration is whether the accused is guilty of criminal negligence in not having exercised that reasonable and proper care to guard against injury to Sridharan Pillai, The learned Judge relying on the opinion of p, W. 8 would take it for granted that the accused could have saved the life of Sridbaran Pillai if he had promptly swerved the car to the right. The accused did really swerve the oar to the right as it was seen that the deceased was knocked down hitting at the left headlight and the bumper on the left Bide. It could safely be assumed therefore that the car was moving towards the right when the actual impact took place. We are definitely of the view that even if the accused failed to Swerve the car to the right, he could not be blamed because having regard to what happened, he could not suddenly take a decision as to what course he should adopt without danger to the oar and the persons inside the oar In Ghacko John v. Sirkar 1943 Tr. L. Rule 710 the question of the extent of negligence required to render a person liable for criminal negligence was considered and the following extract from Gour's Penal Law (Bdn. 5, p. 1047) was adopted as laying down the law on the question:

The negligence in such cases must be what is designated 'gross. There must be such an amount of recklessness or negligence as to be something more than normal or ordinary, it must be something which men would at once declare, 'Here is a man tiding for a fall.' It must be something to the danger of which if one drew the accused's attention, this latter might exclaim, I 'don't care'. It must at onoa bring into view the possibility of danger, the happening of some catastrophe. It mast be something more than a mere omission or neglect ot duty (Pirmey, 12 Cox 626). In order to render a person liable for criminal negligence, there must be something more than a mere negligence for law distinguishes between negligence which originates a civil liability and one the consequence of which is a criminal prosecution. So Brett 3. said, 'There must be negligence bo great aa to satisfy a jury that-the offender had a wicked mind in tha senna of being reckless or careless whether death occurred or not.

In this case, from the way in which the accused was driving his oar, nobody could have thought that he was heading for danger. He was keeping to the correct side and a distant pedestrian was warned in time to keep to the correct side of the road. The pedestrian took the warning and he was keeping to the extreme edge of the road and the driver could not have expected him to expose himself to danger by trying to cross the road. The driver could not have by any degree of circumspection foreseen this contingency and in the sudden and unexpected manner in which Sridharan Pillai ran across the road, the driver could not have done anything better than what he did to save the man. It is a case of pare accident and the accused could not be said to have been rash or negligent in the matter of driving the vehicle. He is not therefore guilty of the charges that were laid against him. The criminal appeal filed by him is allowed and the conviction and sentence passed by the lower Court are hereby quashed. His bail bonds are cancelled and he is set at liberty forthwith.


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