(1) Crl. R. C. No. 762 of 1960: This revision is directed against the order of the learned District Magistrate, Ramanathapuram, who dismissed an appeal of the petitioner from his convictions under Ss. 337 and 338, I.P.C. as well and S. 3 and S. 89 read with S. 112 of the Motor Vehicles Act. The District Magistrate altered the sentence of imprisonment for three months under S. 338 into a fine of Rs. 500 and the rigorous imprisonment for six weeks under S. 337 into a fine of Rs. 20. He confirmed the fine of Rs, 20 on each count under the said sections of the Motor Vehicles Act. The court below further directed that a sum of Rs. 400 out of the fine of Rs. 500 should be paid over as compensation under S. 545, Cr.P.C. to P.W. 14, the father of the girls who were injured.
(2) The fact as found by the courts below are no longer in dispute. in fact, Sri Mohan Kumaramangalam, appearing for the petitioner, intimated that he accepted the facts as found and addressed arguments on the basis of proved facts. The car MDR 2066 belonged to the petitioner Gnanasoundara Pandian. He had no driving licence but wanted to learn driving. At 6-30 a.m. on August 4, 1959, with one Kasi, examined as P.W. 4, in the case, who was a licensed driver, seated by his side on the left in front scat, The petitioner took out the car, himself at the steering. He drove the car into Karaikudi town and on the way to a Battery company at Singararapillai Street, the car was proceeding at Maharnonbu Agraharam and just then the car went off the platform opposite to the Indian Bank. P.W. 4 asked the petitioner to apply the brakes. But the petitioner in stead pressed on the accelerator with the result the car MDR 2066 dashed against a taxi MDU 4178 stationed on the right side of the street squeezing in between two girls Rajalakshmi and her sister Usha. Both the girls sustained grievous injuries, Muthu, who was sitting in the taxi, was bit on hit on forehead. It is clear from the facts that the, accident occurred because the petitioner, when the cat, Went lover the platform instead of applying the brakes, apparently, due to inexperience and mistake, pressed down the accelerator, thus increasing the speed of the car as a result of which, he dashed against the taxi squeezing the two unfortunate girls in between.
(3) On those facts, Sri Mohan Kumaramangalam, lam contended that the petitioner could not be held guilty of rash and negligent act punishable under Ss. 337 and 338, I.P.C. According to him, it was not proved that. the car MDR 2066 at the time or just before the accident was driven at an excessive speed and when that car swerved to the right and over the platform, the petitioner immediately did hi. best to apply the brakes and stop the car but instead, on account of inexperience and by what was obviously a mistake, actually pressed the accelerator producing the opposite effect not intended. In such circumstances, argued the learned counsel, the petitioner acted neither rashly nor negligently. The point is one of importance and calls for a careful consideration.
(4) The main ingredients of Ss. 337 and 338, I.P.C. are: (I) hurt or grievous hurt caused to any person, (2) by doing any act, (3) so rashly or Negligently as to endanger human life or the personal safety of others. In this case, the first ingredient is certainly present. The two girls sustained grievous injuries and Muthu was also hurt. The injuries sustained doubtless resulted from the impact caused between the two vehicles by the petitioner using the accelerator instead of the brakes, to stop his car. Such a situation arising out ot the petitioner's act would naturally endanger human life. The second and part of the Third element are thus satisfied., The only question is whether in the circumstances of the case the petitioners act in pressing upon the accelerator instead of applying the brakes could be said to be an act so rash and negligence as to endanger human life. In re, Nidamurthi Nagabhushanam, 7 M H C R 119, Holloway and Kindersley, JJ. defined 'culpable rashness' and 'culpable negligence' thus.
'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 (luxuria). 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 lie would have had the consciousness. The imputability arises from the neglect of the civic duty, of circumspection.'
(5), It is apparent that an injury caused consciously or intentionally will not come within the purview of either of these categories. Rashness implies an awareness of the mind and the Possible consequence, the person concerned, nevertheless, persisting in an act in the expectation that it is in his power to meet an emergency or he has taken steps to avoid or prevent any mischance or mischievous or injurious thing happening. For instance, when a person drives his car through a crowded part or a highway at break-neck speed, be knows that his act is such as would endanger life but all the same, he indulges in the act with the belief that he could stop the vehicle with his efficient brakes, or with his skill in driving, he could drive or Avoid dashing against and causing injury or danger to any other person or thing. The essence of rashness lies in the consciousness or awareness of the mind with reference to the act done and Indulging in the act with a foolhardy hope or expectation against anything untoward happening. On the other hand, negligence presupposes a negative state of mind, an absence of awareness or consciousness of what should be done or omitted to be done, such state of mind being consequent upon failure to apply or exercise the requisite caution or precaution. As a result of not exercising the requisite caution or precaution, a person slips into a mental condition in which he does an act or fails to do an act little foreseeing its consequences or effects.
(6) The essence of criminal liability under S. 337 or 338, I.P.C. is culpable rashness or negligence and not any rashness or negligence,. The difference between the two is what marks off a civil from a criminal liability. The distinction is often an intricate matter and depends on the particular time, place and circumstances. In civil law, negligence means inadvertence, which, 11 it resulted injurious consequences to person or property, may involve liability the compensate for damage. in Halsbury's Laws of England, 3rd Edn. Vol. 28, paragraph 1, it is stated:
'Negligence-is a specific tort and in any given circumstances is the failure to exercise that care with 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 done 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 he 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 lie encountered and to the magnitude of the prospective injury'
The consequence flows from a state of mind which is blank or devoid of any advertence, and the liability for such consequence is to be judged from the standpoint of reasonable foreseeability and the failure to exercise the care which such foreseeability necessarily implies. That I conceive to be the principle of tortious liability for negligence. Kenny in his 'Outlines of Criminal Law' at page 29 observes,
'But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence The word 'negligence', therefore, in our jurisprudence, is used to denote blameworthy inadvertence and the man who through his negligence has brought harm upon another is under a legal obligation to make. reparation for it to the victim of the injury, who may sue him in tort for damages. But it should now be recognised that at common 1aw there is no criminal liability for harm thus caused by inadvertence............... The truth may be that he did not foresee the consequences as a reasonable man would have done, and that he was negligent in the true sense of the word and therefore civilly, although not criminally, liable.'
(6A) Kenny further points out that for criminal liability for negligence, there must he something more than such blameworthy inadvertence. This aspect is also adverted to in paragraph 1374 of Halsbury's Laws of England, 3rd Edn. Volume 10,
'A higher degree of negligence is necessary, to render a person guilty of manslaughter than to establish civil liability against him. Mere careless-ness is not enough. Negligence in order render person guilty of manslaughter must be more than matter of compensation between subjects; it must show such disregard for the lifts and safety of others as to amount to a crime against the State. Whether negligence is to be regarded as of such a nature is a question for the jury, after they have been properly directed by the judge as to the standard to be applied, and depends on the facts of the particular case. The number of persons affected by a single, act, of negligence does not affect the decree of negligence.'
(7) While on this aspect, it is also instructive to refer to two English cases. Rex v. Williamson, 1807-3 C and P 635, was a case where a man who practised as an accoucheur, owing to a mistake in his observation of the actual symptoms, inflicted on a patient terrible injuries from which she died. After pointing out 1'hat in a civil case once negligence was prayed, the degree of negligence was irrelevant, Lord Ellenborough, the Lord Chief justice, said.
'In a criminal court on, the contrary, the amount and degree of negligence are the determining questions. There must be mens rea........In explaining to juries the test which they should apply to determine whether the negligence in a particular me, amounted or did not amount to a crime, Judges have used epithets such as 'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But whatever epithet be used and whether an epithet; he used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a were matter of compensation between subject and showed such disregard for the life and safety of others, as to amount to a crane against the State and conduct deserving Punishment.'
(8) Andrews v. Director of Public Prosecutions, 1937 AC 576, was a case under the English Road Traffic Act, 1930--Andrews was convicted at Leeds Assizes of the manslaughter of one William Burton Craven through the dangerous driving of a motor car, and was sentenced to 15 months' imprisonment and disqualified for life from holding a driving licence. The conviction was under S. 11 of the Road Traffic Act, 1930, which stated that if any person drove a motor vehicle on a road recklessly, or at a speed or in a manner which was dangerous to the public having regard to all The circumstances of the case including the nature, condition, and use of the road, and the amount of traffic which was actually at the time, or which might reasonably be expected to be, on the road, he should be liable to fine or imprisonment. The conviction was challenged before the House of Lords on appeal based solely on an alleged misdirection to the jury. Lord Atkin, who delivered the leading speech, after mentioning that of all crimes manslaughter appeared to afford most difficulties of definition and referring to the observations already noticed of the Lord Chief Justice in 1807-3 C and P 635, observed at page 583:
'Here again I think with respect that the expressions used are not, indeed they probably were not intended to be, a precise definition of the crime. I do not myself find the connotations of mens rea helpful in distinguishing between degrees of negligence, nor do the ideas of crime and punishment in themselves carry a jury much further in deciding whether in a particular case the degree of negligence shown is a crime and deserves punishment. But the substance of the judgment is most valuable acid in my opinion is correct Simple lack of care such as will constitute civil liability is not enough; for purposes of the criminal law 'there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can he applied 'reckless' most nearly covers the case. it is difficult to visualise a case of death caused by reckless driving in the connotation of that term in Ordinary speech which would not justify a conviction for man slaughter, but it is probably not all-embracing for 'reckless' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a High degree of negligence in the means adopted to avoid the risk as would justify a conviction............ Death caused by their negligent driving, though unhappily much more frequent, is to he treated in law as death caused by any other form of negligence; and juries should be directed Accordingly.'
The Noble Lord then went into the relevant sections of the Road Traffic Act, 1930 and proceeded to say,
'It therefore would appear that in directing the jury in a case of manslaughter the Judge should in the first instance charge them substantially in accordance wish the general law, that is, requiring the high degree of negligence indicated in R. V. Bateman, 19 Cri. Ap. Re. 8, and then explain that such degree of negligence is not necessarily the seine as that which is required for the offence of dangerous driving, and then indicate to them the conditions under which they night acquit of manslaughter and convict of dangerous driving. A direction that all they had to consider was whether death was caused by dangerous driving within S. 11 of the Road Traffic Act, 1930, and no more, would in my opinion be a misdirection.'
(9) The result of the appeal was that although there was such a misdirection, the House of Lords on a consideration of the summing up, as a whole, was satisfied that the true question was ultimately left to the jury and that on the evidence the verdict was inevitable.
(10) Mere negligence or rashness is, therefore, not enough to bring a case within the ambit of Ss. 337 or 338, I.P.C. Negligence or rashness proved by evidence mast be such as should necessarily carry with it a criminal liability. Whether such liability is present may depend on the degree of culpability having regard in each case, to the particular time. place and circumstances. 1f It is merely a case of compensation or reparation for injury or damage caused to a person or property, it is clearly not punishable under either of the sections. The culpability to be criminal should he such as concerns not merely the person injured or property damaged but the safety of the public on the road. But the nature and extent of the injury or damage will be irrelevant in fixing criminal liability for negligence under the sections.
(11) On the facts of the instant case, I am not satisfied that the conviction of the petitioner was right. He was a learner and quite inexperienced in driving. As far as I know, and nothing to the contrary has been said at the Bar, there is no prohibition by law of a learner practising driving on the street in a town or a village frequented by traffic. It may be that in such cases the learner should take reasonable care and caution to avoid foreseeable dangers or damage on the road. In this case, there is no evidence of any traffic or crowd at the place and time, of the accident. It also appears that the petitioner tried to stop the vehicle but failed to do so by sheer inexperience and mistake. In such circumstances, in my opinion, the petitioner cannot, be held to be guilty of the criminal offence he was charged with. The injuries sustained by the unfortunate girls, no doubt, appear to have been serious. But this, as I said, will have no relevance in deciding whether the petitioner's act involved criminal negligence or rashness.
(12) The conviction and sentence under Ss. 337 and 338, I. P. C, are set aside and the petitioner is acquitted of these offences. The fine if any paid will be refunded to him. The conviction and sentence of fine on each of the counts under the provisions of the Motor Vehicles Act will stand.
(13) Criminal R. C. No. 559 of 1960: which is by the father of the two injured girls to enhance the sentence is dismissed.
(14) Order accordingly.