K. Lahiri, J.
1. Two innocent young kids were knocked down and killed by a steel monster, a T. M. B. truck loaded with sand, on the National Highway; the alleged killer was apprehended within a distance of about half a furlong from the place of incident; the 'killer driver' was a complete stranger and the spot where the kids were found was on the turf portion of the road. No doubt arises in the mind that the driver was the 'killer' and he should be penalised. Sentiment plays havoc, takes upper hand over reason and drives a common mind to lay the charge against the alleged blameworthy driver. He is the killer. It must have happened due to his rash or negligent act, These are but the natural reactions in public mind.
2. The driver, a professional man, earns his bread on the strength of his driving licence; he is destined to meet road-hazards natural and man-made, at every bend or turn of a road. He travels far and wide through hamlets and towns mostly through places where he can hardly expect to get sympathy if perchance a mischance takes place. He is expected to reach his destination on time, obey the rules of the road and supposedly cannot run the risks to forfeit his licence by doing heroic activities of dare-devil nature. These are all that can possibly be said in defence of a person, who takes the wheel.
3. On 23-5-73, at Sarutezpur under Palasbari Police Station at about 12 noon or so, the petitioner, it is alleged by the prosecution, drove his loaded truck No. ASK 9977 rashly and negligently and caused the death of two boys of the said village. The incident was allegedly witnessed by P. W. 1 Jogen and P. W. 3 Anubala, who were said to be inside Anubala's shop. According to them, the truck came at a high speed, knocked down the boys who were standing on the kutcha portion of the National Highway; they came out of the shop, cried out and the truck could be stopped by the villagers about half a furlong from the place of the incident. In the first information report lodged by P. W. Satish at the police station immediately after the occurrence, there is no indication that anybody had seen the incident nor do we find the number of the lorry therein. There is even no allegation that the truck was driven in a rash and/or negligent manner. The only allegation is that a truck carrying sand knocked down his (first informant's) two nephews on the left hand side of the road.
4. The police went to the place of occurrence and drew up a sketch map around 3.30 p. m. The truck was examined by an expert and was found in excellent condition. The accused had requisite driving licence. The place of incident was the National Highway and there is no material that there was any speed restrictions on the highway. No mechanical defect was found in the truck. The police found the immobile truck about half a furlong from the place of incident. There is no allegation that the accused was drunk, drugged or in any way physically or mentally incapacitated at the relevant time.
5. The accused faced his trial Under Section 304A I.P.C. Seven witnesses were examined on behalf of the prosecution and two witnesses on behalf of the accused.
6. There is no dispute that the two boys, Lalit and Nripen, were knocked down by the truck driven by the accused and died on the spot. These facts are squarely admitted by the accused as well. The trial court considered the evidence of the eye witnesses to determine whether the incident had happened due to the rash or negligent driving of the accused. The trial court while discussing the evidence of the eye witnesses has held that the two P. Ws. were inside the shop, were busy in talking, while so conversing they saw the truck coming at a tremendous speed and knocked down the boys, the witnesses came out, shouted out and the truck could be stopped by the villagers at a distance of about a furlong from the place of occurrence. The learned Magistrate has considered the defence version as well, namely, the truck was driven at a normal speed and the boys being chased by a woman suddenly shot in front of the truck and were knocked down; the driver made every endeavour to avoid the accident by taking the truck to the extreme left side of the road but unfortunately could not avoid the mischance. While considering the prosecution case, the learned Magistrate has held that it was not improbable for the eye witnesses to look towards the road while engaged in talking. However, it appears from the evidence of the witnesses that there was only one opening of the shop, namely, a door through which the road could be viewed. It is the prosecution case that both the alleged eye-witnesses were inside the shop-house at the time of the incident. It also appears clear that both were having conversation at the time of the accident. It is also evident that P. W. 1 was sitting inside the shop house while P. W. 3 was standing at the door (the only opening of the shop). If they were engaged in talking, ordinarily they were expected to look at each other. P. W. 3, in the act of talking, was expected to look inside the shop as such it is more probable than not that she was not looking towards the road. The only witness who was in a position to look towards the road appears to be P. W. 1. However, his view was being obstructed by P. W. 3, who was standing at the doorway. This being the position there ought to have been a clear finding emanating from the courts below as to whether they in fact could have seen the incident and their views were unobstructed. Unfortunately there is no finding to that effect. There is also no finding that if these witnesses were in fact the eyewitnesses how is it that their names were conspicuously absent as witnesses in the first information report. Further in the sketch map there is no indication, that any person had seen the incident from the shop house of Anubala. On scrutiny of the sketch map, Ext. 7, I find that the shop of P. W. 3 Anubala has been shown away from the main road and it is visible that to reach the shop one has to go by a village path up to a certain distance and then to take turn towards east. There is no indication in the sketch map as to the distance of the shop house from the main road.
7. Be that as it may, it appears that the trial court could not place absolute reliance on the testimony of the alleged eye witnesses and while considering the prosecution case had to fall back upon the evidence of the defence witnesses. The learned Magistrate could not come to the conclusion that the truck had been driven rashly as alleged by P. Ws, 1 and 3. The learned Magistrate convicted the accused for negligent driving and not for rash driving. This is indicative of the fact that the learned Magistrate could not rely on the testimony of P. Ws. l and 3 as to the rash driving. The conclusion reached by the learned Magistrate reads as follows:
Therefore, from the discussion of both the versions of the prosecution and the defence it transpires that the accused was not taking due care in driving the vehicle and for that reason the lives of the two boys were lost and the accused at the time of occurrence was surely negligent which constitutes offences Under Section 304A of the Indian Penal Code.
8. Upon hearing the parties, I find that the learned Magistrate was justified in not accepting the prosecution version of rash driving on the facts and in the circumstances of the case. If in fact the truck was driven at a break neck speed as alleged by P. Ws. 1 and 3, it is hardly believable that the truck could be stopped within a distance of half a furlong or so, as alleged by the prosecution. The witnesses were to come out from the shop or shout out therefrom and, if the truck had been driven at that tremendous speed, as alleged, it would have left several villages by the time the villagers could have come out and stopped the truck. The very fact that the truck was stopped only at a distance of half a furlong or so shows clearly that the truck was not being driven at the rate of speed alleged by P. Ws. 1 and 3 and the learned Magistrate was justified in holding that it was not a case of rash driving.
9. However, the learned Magistrate convicted the accused for negligent driving. According to him, the driver had enough time to see the boys crossing and ought to have applied his brake no sooner did he find the boys being chased by a woman were making endeavour to cross the road. The learned Magistrate made calculations, on the basis of the deposition of a daily labourer and a handyman, as to the relative speed of the truck and the boys and then concluded that the boys could not have run faster than the truck and the driver must have seen the boys crossing the road when they were about 20 cubits ahead of him and non-application of the brake amounted to negligent act of the driver. His finding in this regard is quoted herein below:.the truck could have been stopped within a distance of less than 20 cubits. The sketch map does not show any skid mark which the I/O said was not found at the place of occurrence. Therefore it is clear that the accused did not apply brakes seeing the boys which was his first duty to do when he saw the boys crossing the road.
As such, he believed the defence story that the boys were crossing the road as alleged but found the accused negligent in not applying the brakes on seeing the boys crossing the road. Non-application of brake was the only omission, which according to the learned Magistrate, amounted to criminal negligence and the accused was convicted Under Section 304A I.P.C. and sentenced to R. I. for 6 months.
10. The accused preferred an appeal against his conviction. On 16-6-75 the learned Sessions Judge directed the bailer of the accused to produce the appellant on the date of hearing of the appeal. Accordingly, the accused was produced on the date of hearing of the argument (8-8-75) and the learned Judge upon hearing the parties cancelled his bail and remanded him to jail hazat. And by his judgment and by his order dated 12-9-75 dismissed the appeal. The learned Judge has held that the trial court rightly rejected the evidence of the defence witnesses. The learned Judge stated that the defence witnesses were 'highly interested with the driver' and also held that it could not be believed that the truck had been moving at a low speed as claimed by the accused. Had it been so, according to the learned Judge, the accident could have been easily averted. The learned Judge did not give any reason how it could be 'easily averted' by the accused. The learned Judge has held that as there was no skid mark, the driver did not make any attempt to apply brake. The learned Judge accepted the prosecution story that it was a case of rash driving. He believed that the driver had lost control over the steering because of the high speed of the truck, had gone off the road towards the northern side and ran over the boys. As such, the conviction of the accused was maintained and the appeal was dismissed.
11. Apparently there is a conflict between the findings of the trial court and the appellate court. The trial court held that it was a case of negligent driving. It did not believe that the truck had been driven at a tremendous speed. On the other hand the learned Sessions Judge has held that the truck was driven at a very high speed and rejected the evidence of the defence witnesses and the plea of the accused that the truck had been driven at a moderate speed. In fact, the trial court accepted the story of moderate speed as presented by the defence but it held that the accused had been negligent in not applying the brake. The trial court did not accept the story of rash driving as pictured by the prosecution. The learned Sessions Judge did not scrutinise the evidence regarding high speed. The finding as to the speed was halting and the learned Judge did not discuss the evidence independently to see why he did accept the prosecution version of high speed.
12. Counsel for the accused is justified in submitting that the findings of the learned Sessions Judge as to the rash driving must be set aside. It is clear that it is a conflicting finding with that of the trial court. It is also equally true that the learned Sessions Judge merely referred to the evidence of P. Ws. l and 3 and believed their statements that the truck had been driven at a tremendous speed. The learned Judge did not consider that the place of occurrence was on the National Highway, where there was no speed limit or restriction. Excepting the statements that the truck was driven at a tremendous speed there is no positive statement as to what was the rate of the speed. It is true that it is not possible to say the exact speed of vehicle and such conclusions are always based on guesswork but there was no attempt made by the prosecution as to the rate of speed at which the truck was driven. The expressions 'tremendous speed' and 'high speed' are always relative. Be that as it may, the trial court was justified in not relying on the prosecution version as to high speed. It is evident that there was no allegation made as to the high speed of the truck or rashness on the part of the accused in the ejahar. This apart, there is no mention in the ejahar that P. Ws. 1 and 3 were the eye witnesses. The rough sketch map also does not show that anybody had seen the incident from the shop house of P. W. Anubala. As alluded the shop house is away from the road and one is to travel to it after covering some distance by a village path. Further P. Ws. 1 and 3 did not anticipate the incident, were having conversation and both were inside the shop; P. W. 3 was standing at the door and P. W. 1 was sitting inside the shop. Under these circumstances, it is more 'probable than not that they could not have seen the truck approaching and meeting with the accident. This is the reason as to why their names are not in the ejahar nor do we find any allegation as to the rash driving in the first information report. Further, the story of 'high speed' or 'tremendous speed' must be rejected on the score that the truck could be stopped as alleged by the prosecution within a disance of only half a furlong. There was no skid mark on the road. As such, if the truck would have travelled at a 'tremendous speed' it would have gone away several kilometres before the two witnesses, P. Ws, 1 and 3, could have come out on the road or shouted out to others to stop the vehicle. The very fact that the truck was stopped within half a furlong and the absence of skid mark anywhere on the road counter the prosecution version depicted by the witnesses as to the speed. Only a truck running at a moderate speed could have been stopped in the manner alleged and no speeding truck could have been apprehended within a short distance as alleged by the prosecution. As such, I have no hesitation in accepting the trial court's findings setting aside the finding of the learned Sessions Judge as to the speed of the truck. I hold that the story of high speed narrated by P. Ws. 1 and 3 cannot be accepted at its face value.
13. Now the question is as to whether the accused has been rightly convicted under Section 304A, I.P.C. Section 304-A reads as follows:
304-A. 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 both.
14. An offence Under Section 304-A is committed either by committing a rash act or a negligent act. There is a marked distinction between a rash act and a negligent act. In the case of a rash act the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. A culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow but with the hope that they will not and sometimes with the optimism that they will not, and often with the belief that the author has taken sufficient precautions to prevent their happenings. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution 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 to have adopted. Negligence implies, an 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 a reasonable man would not do. Thus culpable negligence is acting without the consciousness that the illegal or mischievous act will follow, but in circumstances which saw that the actor or the author has not exercised the caution incumbent upon him and if he had he would have had the consciousness. The imputability arises from the neglect of civil duty of circumspection. This is the law settled by their Lordships in Balachandra Waman Pathe v. The State of Maharashtra 1968 SCD 198. The said principle of law has been reiterated by their Lordships in : 1972CriLJ496 , S. N. Hussain v. State of Andhra Pradesh, wherein their Lordships have fashioned the law in the following form:
Rashness consists in hazardinig a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution 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. This definition of criminal rashness and criminal negligence given by Sraight, J. in Empress of India v. Indu Beg (1881) ILR 3 All 776, has been adopted by this Court in Balachandra Waman Pathe v. The State of Maharashtra Cri. A. No. 62 of 1965. D/- 20-11-1967 : 1968 SCD 198.
15. Counsel for the parties have not been able to place before me any later decision of the Supreme Court wherein the aforesaid principles have undergone any change in any form whatsoever.
16. The courts below determined the case without having before them the principles of law on the subject. Criminal negligence must always reach the stage of gross and culpable negligence or failure to exercise the requisite, reasonable and proper care and precaution to guard against injury either to the public generally or to an individual, which is required to be judged having regard to all the circumstances out of which the charge has arisen, that it was the imperative duty of the accused to have adopted the course which he has neglected or failed to adopt.
17. Let me consider the facts and circumstances of the case to judge the culpability of the accused. The place of occurrence is on the National Highway, primarily meant for speeding vehicles. It is no playground nor is a place where pedestrians can indulge in doing things hazardous to moving vehicles. At best it can be said that those who use the road (the padestrians), have their reciprocal duties to abide by the norms of pedestrians. The Highway is hot very wide at the place of the incident. Its central pitched portion is only 22' and the turf portions measure 8'6' and 9'3'. As stated, nobody could give the exact spot of the first impact of the truck with the boys. The findings arrived at by the trial court is that the driver ought to have applied his brake. On perusal of the evidence of the D. Ws. I find that the truck was driven approximately at the rate of 20 to 25 miles per hour (vide evidence of D. W. 2, Sakaldew). The truck was loaded with sand. It is the positive evidence and found to be true by the trial court, as stated by D. W. 2, that when the truck was about 8 to 9 cubits away from the boys, the boys being threatened by a woman suddenly darted from the right hand side to the left hand side of the road. It is a common knowledge that these young boys run fast. The driver saw them running through the road and darting towards the middle. He has stated that he made an endeavour to bypass them by taking the truck to the extreme left. This is also borne out from the evidence that the truck took a sudden turn towards the left hand side. As such, we get the answer as to why the truck had to be taken towards the extreme left hand side. Although the motor vehicle expert was examined it was not elicited by the prosecution that the loaded truck travelling around 25 miles per hour could have been stopped even after application of the brake within a short distance of about a few cubits. The driver has stated that he did not apply any brake but took a turn to the extreme left in order to avoid the onrushing children. Was it an error of judgment or a culpable negligent act? Where is the evidence that a truck of similar nature could have been stopped within 8 to 9 cubits or around 16 to 20 cubits under the circumstances? It is apparent that if the brakes could or would have been applied immediately, driving straight towards the boys there was every Possibility of the boys being crushed under the truck. As such, the driver took the alternative left to him, namely, to bypass them and he was unsuccessful, that is to say, he could not avoid the boys. Therefore, in my opinion, considering the facts, namely, that the truck was loaded, it was travelling around 25 miles per hour, the boys came suddenly and unexpectedly, the truck driver saw the boys only at a point when they were darting towards the middle of the road and there was only a short distance of a few cubits between the moving truck and the moving boys; the driver was destined to take a split-second decision whether to avoid the boys by taking a turn to his left or to apply brake forthwith. He thought it wise not to apply the brake as he could not have avoided the accident and thought that it would be better to take the truck to the extreme left and to avoid the onrushing children. Assuming that there was an error of judgment, in my opinion, the conduct of the accused cannot be said to be grossly negligent, at best, it can be described as an error of judgment. Unless it is proved that the driver has failed to exercise that reasonable and proper care and precaution in which having regard to all the above circumstances it was imperative duty of the accused to apply the brake, it is not possible to arrive at the conclusion that the accused was grossly negligent. Unless it is possible to reject the course adopted by him, namely, to take the truck to the extreme left to avoid the children, to be utterly negligent act it is not possible to hold the accused guilty Under Section 304-A, I.P.C. Absence or presence of skid mark on the Highway, in my opinion, is not at all relevant in the instant case as the positive defence is that the driver instead of applying the brake took the truck to the left hand side to avoid the boys. It is quite easy for a non-driver or as a matter of that for a person to sit soberly in a cool atmosphere and then to judge what ought to have been done under the circumstances. But we are to judge the conduct of the driver putting ourselves in his position. It was the driver who had to face the emergent situation arising out of the sudden onrush of the children towards the middle of the road. He had no intention to kill the boys. He made an endeavour to save the boys by taking the truck towards the extreme left side. If successful nothing would have happened but as he was unsuccessful he has become blameworthy. If he would have applied the brake forthwith and crushed the boys he would have been liable. Such a quick silver decision by a driver should not be judged in a golden scale. Unless one can come to the conclusion that the conduct of the accused was utterly negligent and that it was the imperative duty of the petitioner to apply the brake it is not possible to convict him. The learned Magistrate came to the conclusion 'that the truck could have been stopped within a distance less than 20 cubits.' At the same time he accepted the defence version that when the boys darted towards the middle of the road they were only 8 to 9 cubits away from the truck. As such, on the own findings of the learned Magistrate the accused could not have stopped the truck even by applying brake immediately or could have averted the impact. This being the finding of the trial court it cannot be said, that the driver was not justified in not applying the brake; there being equal possibility if not more to knock down and crush the boys to death even if he would have applied the brake. Therefore, applying the law laid down by their Lordships in Balachandra. Waman Pathe (supra) and S. N. Hussain (supra) it is not possible to conclude that, the conduct of the accused in not applying the brake was gross and culpable neglect or amounted to failure to exercise that reasonable and proper care and precaution, having regard to all the attending circumstances of the case, it was imperative duty of the accused. The other course adopted even if it can be described to be wrong or not exercising proper discretion cannot be rated as a palpably gross, negligent act.
18. Under these circumstances, notwithstanding the loss of two young lives, I arrive at the irresistible conclusion that in the instant case there is no evidence or material to hold that the accused is guilty of the offence Under Section 304-A, I.P.C. For the reasons set out above, I set aside the conviction and sentences passed by the courts below and acquit the petitioner of the charge.
19. In the result, the petition is allowed.