RAGHUNATH BEHERA Vs. STATE

JUDGEMENT

(1.) PETITIONER has been convicted under Sections 279 and 304 -A Indian Penal Code and sentenced to undergo R. I. for four months under Section 304, while no separate sentence has been awarded for the offence under Section 279, Indian Penal Code.

(2.) THE facts which are not now in dispute may be briefly set out as follows. The tractor bearing O.R.C. 5178 along with another tractor each attached with trailer were taken on hire from D. W. 1 who is in charge of the tractorisation scheme operating in the districts of Kalahandi, Bolangir and Sundergarh for carrying some building and other materials from Bhavanipatna to Koralapat. On 26.3.1964, the two tractors with the attached trailers loaded with materials left Bhawanipatna to Korlapat. Petitioner was driving the tractor O. R. C. 5178. At about 10.30 a. m. on that day, while the tractor O. R. C. 5178 being driven by petitioner was negotiating the up gradient of the Malkatch ghat dragging the load in the trailer attached behind, the engine suddenly stopped and abruptly the tractor moved backwards due to the down -gradient. The hitch assembly of the trailer broke at a point which had been previously welded, resulting in the trailer being detached from the tractor. It fell into a ditch nearby. One police S. I. named Bhimsen Patnaik and four labourers were seated on the trailer. Three of the labourers jumped from the trailer, while it rolled down, out of whom, two sustained minor injuries. The trailer overturned and capsized in the ditch, as a result of which, the S. I. and the other labourer Bhubah Gouda died. F. I. R. was lodged at the Police station at 12 noon. Ultimately, the Circle Inspector of Police (PW. 10) visited the spot the same day and during investigation, found that the hitch assembly drawbar had previously broken and welded and there were no marks on the spot to show that the driver put the brake immediately when the engine stopped to prevent the vehicle rolling backwards. The M. V. I. (P. W. 11) who examined the vehicle found no mechanical disorder and pointed that due to careless driving and defective hitch assembly of the tractor the accident occurred. The defence plea is that when the engine stopped while negotiating the up -gradient, petitioner applied the brake, but in spite of it, the vehicle rolled backwards. As the trailer also rolled backwards, it twisted the hitch assembly which was broken. Consequently, the trailer rolled into the ditch and capsized resulting in the death of the two persons. He denies that the accident was due to any rashness or negligence on his part. The courts below did not accept the plea of the accused and on the aforementioned facts proved by the prosecution, petitioner was convicted under Sections 304 -A and 279 Indian Penal Code and sentenced, as stated above.

(3.) IT is to be observed that the learned Sessions Judge does not appear to have applied his mind or weighed the evidence to determine whether the prosecution has established the requisite ingredients to sustain a conviction of the accused under Sections 279 and 304 -A, Penal Code. To constitute an offence under Section 279, Penal Code, the points to be established are that the accused was driving the vehicle on a public way and that he was driving in a rash or negligent manner. Similarly, to constitute an offence under Section 304 -A, the prosecution has to establish that the act of the accused was responsible for resulting in death and such act of the accused was rash or negligent although it does not amount to culpable homicide.