STATE OF KERALA Vs. DAMODARAN

JUDGEMENT

(1.) THE circumstances leading up to this Revision, taken up suo moto, are the the following. THE accused who is the driver of a lorry was convicted by the trial Magistrate under S. 304 A and 279 of the Indian Penal code and sentenced to undergo rigorous imprisonment for two years for the offence under S. 304-A and two months for the other offence. He was also convicted under S. 89 read with S. 112 of the Motor Vehicles Act and sentenced on that count to pay a fine of Rs. 100/- and in default to undergo simple imprisonment for one month. All these convictions and sentences were set aside and he was acquitted by the Sessions Judge who heard his appeal. In revision a learned Single Judge of this Court set aside the acquittal and remanded the case to the Session Judge for fresh disposal. THEreafter the Sessions Judge has again acquitted the accused of the offences under S. 304-A and 279 of the IPC. But he has confirmed the conviction and sentence under the Motor Vehicles Act.

(2.) THE incident took place at or about 8-15 a. m. on 27121966 on the Ooruttambalam-Pravachambalam road. THE lorry after dashing against the hind portion of a Transport bus which came from the opposite side knocked down and caused the death of two pedestrians, Narayani and her son subhashanan. THE cleaner was thrown out of the cabin of the lorry and being pressed between the lorry and the compound wall on the side of the road he sustained injuries and later on died.

(3.) THE question requiring consideration is whether the finding of the judge below that the incident was a sheer accident which the accused in spite of the due diligence could not avoid is so perverse and unreasonable as necessitating interference in revision. Mr. P. Kesavan Nair, counsel for the accused in a very persuasive address has put before me not only the principles to be considered, but also the position here. While S. 304-A of the ipc. deals with causing death by rash or negligent act S. 287 deals with driving or riding on public way in a manner so rash or negligent as to endanger life. Rashness or negligence contemplated by the two sections is criminal rashness or negligence. Simple lack of care may constitute civil liability but by itself without mens rea and such a degree of capability as to amount to gross negligence is insufficient to constitute criminal liability. THE driver of a mechanically propelled vehicle has a duty to control it. He should act with due care to guard against the dangerous consequences of his act. He should take precautions and measures to avert dangers which are likely to cause bodily injury to others. Contributory negligence is no defence. In these days of heavy traffic on roads, which in this part of the country are below the standard expected of them, motorists are a menance to peaceful pedestrians. THEre are vast numbers of pedestrians also on the road and the driver of a vehicle has to use his intelligence to anticipate what pedestrians and vehicles coming from front, sides and behind would behave and regulate his own conduct accordingly. Often times he has to take decision in the split of a second and accidents take place on account of error of judgment on his part or his defective intelligence. Failure to foresee dangers is one of the commonest causes of accidents on the road. It is easy to be wise after the event but the question must always be whether at the time of the occurrence the driver was criminally rash or negligent.