KESHAB PRADHAN Vs. THE STATE

JUDGEMENT

(1.) THIS is a petition, in revision, against the appellate judgment of the Additional Sessions Judge of Berhampur maintaining the conviction of the Petitioner under Sections 304 -A, Indian Penal Code and 279, Indian Penal Code and the sentences passed for those offences on him, by the Sub -divisional Magistrate of Chatrapur.

(2.) THE Petitioner was driving a motor truck, bearing registration number ORC -1303 on 27 -11 -1963 from Berhampur towards Aska. On the wary some villagers who were carrying loads wanted a lift on the truck and promised to pay him hire charges. It was alleged that the Petitioner took them on the rear side of the vehicle meant for carrying goods. Three of the so milled passengers took their seats comfortably on a lower level inside the rear side, so that there was no danger of their falling off when the vehicle was in motion But one of them Badi Peddayya sat on the top of the bags carried in the vehicle -notwithstanding the protests of the other passengers namely p.ws. 1 and 2. When the truck was passing through a down gradient near a bridge peddayya fell down and the rear wheels of the vehicle passed over him in consequence of which he was killed. The post -mortem examination held by P.W. 2 showed that there were fractures of the leg bones and the hip (apparently caused by the present being run over by the wheels of the truck).

(3.) FOR this purpose it is necessary to refer to Clauses (a)(c) and (e) of Rule 95 of the Orissa Motor Vehicles Rules. Clause (a) prohibits the carrying of passengers in a goods vehicle, other than bona fide employees of the owner or hirer of the vehicle. The Petitioner by taking passengers for hire clearly contravened this rule. Clause (c) of the Rule further says that no person shall be carried on the goods vehicle in such manner that such a person is in danger of falling off from the same. It was therefore the duty of the Petitioner, as the driver of the vehicle to see that any person sitting on the rear side of the vehicle did not sit on the top of the bags as he knew fully well that there was danger of such persons falling down specially when the truck was passing over a gradient. Clause (e) of Rule 95 further prohibits the carrying of any person for hire or reward in any such goods vehicle. Thus it is clear that the Petitioner contravened the provisions of Clauses (a)(c) and (e) of Rule 95 of the Orissa Motor Vehicles Rules. Even if the accident had not happened he would still have he en guilty of contravention of the said rule which may amount to a minor offence but where (as in this case) in consequence of that contravention the deceased fell down and was run over by the truck, the liability of the Petitioner as the driver of the vehicle, for rashness and negligence necessarily follows. He should not have permitted the person whom he was illegally carrying on the rear side of the truck to sit on the top of the bags but should have insisted on his sitting on a lower level like his companions. This caution was specially necessary because the deceased and p.ws. 1 and 2 are ordinary rustics and not regular employees of the owner of the truck and hence they could not be aware of the necessity of sitting cautiously and safely inside the vehicle when it was in motion. I think therefore that the lower court was justified in holding the Petitioner guilty under Section 304 -A, Indian Penal Code. But a separate sentence for the offence under Section 279, Indian Penal Code is not necessary as the main offence was under Section 304 -A, Indian Penal Code for which a fairly severe sentence of six months (sic) has been passed.