SUPADU LAXMANPATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is a revision application directed against the order of the Additional Sessions Judge, Jalgaon, dismissing the accused's appeal against his convictions and sentence for the offence under sections 338 and 279 of the Indian Penal Code and Sec. 116 of the Motor Vehicles Act.

(2.) The accused was a driver in the Maharashtra State Transport Corporation. On 23-1-1973, the accused was driving a bus being vehicle No. MHD-473 from Jalgaon to Kanalda. After the bus reached Kanalda at about 2.00 p. m., in order to return from Kanalda to Jalgaon, he was reversing the bus at Kanalda bus stand. At the relevant time, the deceased Sampat Rane his son Devram and another person named Ramesh were waiting for boarding the bus along with other, on a log of wood lying adjacent to the house of one Rambhau Chavan. The accused started reversing the bus without giving any warning or without the help of any other person such as the conductor of the bus. As a result of the said rash and negligent act on the part of the accused. The deceased Sampat Rane was hit by the rear portion of the bus. He fell down and sustained internal injuries. The accused stopped the bus only after hearing the cries raised by the person assembled there. There after the accused carried the injuried Rane to the Civil Hospital at Jalgaon in the same bus. He also went to the Taluka Police Station Jalgaon, and lodged the report Ex. 39 of the accident as required under section 89 of of the Motor Vehicles Act. In the report the accused stated the circumstances under which the accident had occured. In particular, he stated that the injured was sitting on a log of wood and he was hit by his vehicle while he was reversing the same On the said report, an accident case was registered by Head Constable Potdar who was incharge of the Police Station and there after the investigation started. The injured Rane had not sustained any external injuries However, on his examination by Dr. Mahajan at the Civil Hospital, it was found that the bladder was distended. It was also further found that there was a ruputure of urethra and blood was present in the bladder. On taking X Ray, It was further noticed that there was fracture of conjoint ramus of right hip bone. Rane was conscious and was in a position to give statement and there fore his dying declaration was recorded in the presence of panchas by need Constable Ahmedmiya himself, since no Honorary Magistrate was available. The said dying declaration is Ex. 26 on record. In the said dying declaration Rane alleged that he was hit by the rear portion of S. T. bus. Rane was in the hospital from 23-1-1972 till 5-2-1973 on which day at about 415 p. m. he expired. The accused w,is charge sheeted for offences under sections 304A, 337 and 279 of the Indian Penal Code and also under section 116 of the Motor Vehicles Act. He was also charge sheeted for the offence under section 85 of the Bombay Prohibition Act, However, the said charge was later on separated. At the trial, the accused pleaded not guilty. The, prosecution examined among others, Devram, the son of the deceased, and Ramesh who were present at the relevant time, Dr. Mahajan who had examined the deceased when he was admitted in the hospital, Dr. (Mrs.) I yer who carried out the post mortem examination and the investing Police Officer. On the evidence, the learned Magistrate held the accused guilty of the offences under section 338 I. P.C. instead of section 304A I P. C. 279 I. P. C. and section 116 of the Motor Vehicles Act. He sentenced for the offence under section 338 I. P .C. to suffer R. I. for four months. He however passed no separate sentence against the accused on the other counts. The appeal perferred by the accused to the learned Sessions Judge, Jalgaon failed. The appellate Court confirmed both the convictions as well as the sentence of the accused by its order dated 20-8-1976. It is this appellate order which is the subject matter of challenge in this revision application.

(3.) Mr. Phadkar, appearing for the acqucant accused, submitted on merits, that since there was no duty cast on the accused to take the assistance of any other person including the conductor while reversing the vehicle, it was not possible to come to the conclusion that there was either rashness or negligence on his part in reversing the vehicle without such assitance. In this connection, he submitted that the accused had taken all the precaution while reversing the vehicle viz. that he was looking back while he was in the vehicle. That, in the circumstances, was sufficient. He also pointed out that although the conductor who was examined had deposed that there was a rule that the driver of a vehicle should reverse the car under the guidance of the conductor, no such rule was placed on record. He also submitted that under R. 270 of the Motor Vehicles Rules, all that is laid down is that no driver of motor vehicle shall cause the vehicle to travel backwards without first satisfying himself that he will not thereby cause danger or undue inconveni ence to any person under any circumsatances. It was not the case of the prosecution that the applicant accused had not satisfied himself in the manner laid down in that rule, before he started reversing the bus I am not impressed by this argument In the first instance, the conductor has also deposed to the fact that there is the usual practice of the driver taking assistance of the conductor whenever the driver wants to take the bus in reverse or backwards. There is no challenge to the said statement of the conductor. Even otherwise, it will have to be held that the driver of a vehicle sueh as the bus in question, has a duty cast upon him to take the assistance of some other person such as the conductor, before he reverses the vehicle or takes it backward. It is impossible for the driver of such vehicles to see everything that is behind such vehicle when he is reversing the same The duty to take the assistance of another person is therefore apparent on the face, and any driver who causes the vehicle to travel backwards without the guidance of another person can be said to be rash and negligent by the very act of such unguided reverse driving. When the said rule 270 provides that the driver of a motor vehicle should satisfy himself that he would not cause danger or undue inconvenience to any person under any circumstances before causing the vehicle to travel backwards, in case where the vehicle involved is such as a motor bus as in the present case, it necessarily implies that the driver of such whicle would take the assistance of somebody else to guide himself in such backward travel. Even assuming therefore that no specific rule made by the State Transport Corporation, in that behalf was produced by the prosecution, the duty cast upon the driver by the said Rule 270 of the Motor Vehicles Rules cannot be said to have been complied with by the applicant- accused in the present case. I am further of the view that even without the provisions of the said Rule 270 the rule of ordinary conduct expected of a reasonable man would demand that such vehicle as a bus in the present case should not be caused to travel backwards without the assistance of another person to guide in such backward travel. I am therefore of the view that inasmuch as the applicant accused had failed to take the assistance of any person for guiding him in the backward travel of the vehicle, such conduct pre se denoted rash and negligent act on his part. I am therefore unable to accept the contention advanced on behalf of the defence that the said act of the accused did not amount to a rash and negligent conduct on his part.