C.B. Bhargava, J.
1. These two revisions by Bhanwarlal and Laxmansingh are directed against the same judgment of the learned Sessions Judge, Bikaner dated 30th September, 1958 convicting both of them under Section 304A I.P.C. and sentencing them to 1 3/4 years rigorous imprisonment and a fine of Rs. 501/-each in default to undergo further rigorous imprisonment for three months and under Section 337 I.P.C. to three months rigorous imprisonment. Both the sentences are to run concurrently.
2. The case relates to a highway collision which took place on 18th November, 1956 at about 9 A, M. on the Gajner road at a distance of 8 miles from Kolayat and 24 miles from Bikaner between Bus No. RJZ 59 driven by Bhanwarlal and RJF 16a driven by Laxmansingh, It appears that Bus No. RJZ 59 was going from Bikaner to Kolayat and the other Bus No. RJF 163 was going from Kolayat to Bikaner and while they were passing each other their bodies collided and the impact was so strong that a number of persons travelling by these buses died and received grievous injuries.
In Bus No. RJZ 59 one person died and four received simple (injuries. In Bus No. RJF 163 three persons died on the spot, one more died in the hospital on the night of the accident and four persons received grievous as well as simple injuries. After the accident Bus No. RJZ 59 stopped at a distance of 165 paces and RJF 163 at a distance of 35 paces. The width of the road where the accident took place is 24'. Near the place of the accident there is a culvert where the width of the road is only 21'.
The mechanical examination of these buses revealed that both hand and foot brakes of Bus No. RJZ 59 were not in working order while the foot-brake of Bus No. RJF 163 was out of order. Finding of the courts below is that both of them were driving the buses at a fast speed and lost control of the vehicles they were driving which resulted in the accident.
3. Learned counsel appearing for Bhanwarlal took exception to a common judgment having been delivered by the learned Sessions Judge. His objection was that the learned Sessions Judge did not go through the record of his case at all and based his findings on the evidence recorded in the other case i.e., of Laxmansingh. He has pointed out that the learned Judge's observations that none of the prosecution witnesses were cross-examined was not correct in his case.
This criticism appears to be true and therefore instead of sending the case back, I have allowed him to place the entire evidence before me. On going through it, I find that no prejudice has been caused to him by a common decision of the case by the learned Sessions Judge. In fact the evidence in both cases was of the same persons.
4. On the merits of the case learned counsel for Bhanwarlal urged that the finding of the courts below that the petitioner was driving the bus at a fast speed is not correct and the prosecution has failed to prove that the accident was due to any rash and negligent act of the petitioner. According to him it was only a case of error of judgment inasmuch as the petitioner honestly believed that he will pass by the other bus and in fact one third part of the bus i.e., upto the seat of the driver went through and it is only the part in the rear of the driver's seat that hit against the side of the other bus.
In this connection he has relied upon In Re, Ganesan AIR 1950 Mad 71; H.W. Smith v. Emperor AIR 1926 Cal 300 Kanji Juma Khoja v. Emperor AIR 1938 Sind 100: Ram Sewak v. Emperor AIR 1933 Oudh 391: Emperor v. Akbar Ali AIR 1936 Ouch 400: Chamman Lal v. The State : AIR1954All186 and State Government M. P. v. Bhawanesh Kumar : AIR1958MP205 . Charlesworth in his book on the Law of Negligence Second Edition has quoted the well known definition of negligence as given by Alderson B.-
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
In Halsbury's Laws of England Third Edition Volume 28 what constitutes negligence has been thus analysed:
Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case and the categories of negligence are never closed. It may consist in omitting to do something which ought to be Hone or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the accompanying circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury.
The degree of rashness and negligence on the part of the accused required to be proved in criminal cases should be of such a nature that an inference about the commission of a crime may be safely made against him. Simple lack of care which may give rise to civil liability will not be enough for the purposes of establishing the guilt of the accused under Section 304A. In the case of In re, Nidamarti Nagabhushanam, 7 Mad HC 119 Holloway, J., said:
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 imputability arises from acting despite the consciousness. 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. Straight, J., in Empress of India v. Idu Beg ILR 3 All 776 observed as follows:
Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury, but without the 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 proper care to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
5. Whether the accused in a particular case acted rashly and negligently will depend upon the facts of that particular case. Therefore, the cases relied upon by the learned counsel do not lend mush assistance in the decision of the case in hand as they have been decided on their own facts. The mere fact that an accident has taken place or that some lives have been lost or some persons have received injuries will not lend to any presumption of rash or negligent act on the part of the driver but will have to be established like any other fact
In this case the facts which are established on record are that the road where the accident took place was 24' wide. 12' of this road was tarred while the remaining was metalled. It has been proved that at the time of the accident RJZ 59 was 7 on the tarred road and bus No. RJF 163 5' on the tarred road. It is also evident that while these buses passed each other the space between the two was so small that a slight deviation caused this accident. It is also proved that both the hand and foot brakes of the bus driven by Bhanwarlal were out of order.
It is further proved that after the accident this bus stopped at a distance of 165 paces from the place of accident. Though it may be true that the prosecution evidence with regard to the speed of the bus may only be an estimate of the witnesses yet the fact that it stopped at a distance of 165 paces after the accident shows that the speed before the accident was excessive.
It is not the case of the accused that after the accident he had accelarated the speed to run away from the place of the accident. It can therefore, be safely inferred that the speed of buses before and after the accident was the same. It is also proved that there was a little slope towards Kolayat where RJZ 59 was going. When two buses are approaching each other from opposite directions it is the duty of the drivers to observe the rule of the road and to keep to his side of the road leaving sufficient space for the other to (sic) by safely.
If they instead drive the buses in the middle of the road and do not deflect their course even on seeing the approaching bus from the opposite direction they would certainly be acting negligently because there is always a danger of the buses swerving a little on either side. In Halsbury's Laws of England Vol. 28, Third Edition it has been stated at page 66 that:
Drivers of vehicles or riders should keep well to the left side of the highway unless they are about to overtake another vehicle or to turn to the right. If two motor vehicles collide in the centre of the road, the inference is, in the absence of evidence enabling the court to draw any other conclusion, that the drivers of both were equally to blame, and it is not a proper decision to hold that in the absence of evidence enabling the blame to (sic)
In these circumstances he should not have persisted in his course and should have deflected his bus to the left side so that the chances of collision could have been eliminated. As observed in the J case of Bhanwarlul's revision there was a faialure on his part to observe the rule of the road and that is prima facie evidence of negligence. There is no doubt that the accident took plate due to his rash and negligent driving but the degree of negligence and rashness in his case is not so high as in the case of Bhanwarlal.
His conviction under Section 304A and Section 337 is therefore, correct; but having regard to the circumstances of the case a sentence of six months rigorous imprisoment and a fine of Rs. 501/- under Section 304A wLall meet the ends of justice. Sentence under Section 337 is maintained. Both sentences are to run concurrently.
7. The result therefore, is that Bhanwarlall's revision is partly allowed, his conviction under Section 304A and Section 337, I.P.C. is maintained but his sentence under Section 304A is reduced to one year's rigorous imprisonment and a fine of. Rs. 501/-in default to undergo three months further rigorous imprisonment. Sentence under Section 337 is maintained. Both sentences are. to run concurrently. Laxmansingh's revision is partly allowed. His conviction under Section 304A I.P.C. is maintained but his sentence under this section is reduced to six months rigorous imprisonment and a fine of Rs. 501/- in default to undergo three months further rigorous imprisonment. Conviction and sentence under Section 337, I.P.C. is maintained. Both sentences will run concurrently. The petitioners are on bail and they shall surrender to it.