Proof of rashness and negligence necessary for awarding conviction u/s 304-A.

The revision petitioner was the driver of an express bus MDR 4884 belonging to Jayaram Motor Service. Both the Courts below found the accused guilty under section 304-A, Indian Penal Code, and sentenced him to R. I. for six months. The occurrence is stated to have taken place on 30th March, 1967. The revision petitioner was driving the bus along Tenkasi Road, two miles from Rajapalayam. He met with an accident resulting in the death of one Guruswami, aged about 30, who was driving in a cycle. The plea of the accused was that he drove the vehicle slowly and the cyclist came fast, crossed the road and suddenly fell down before his vehicle. Both the Courts below gave the finding that the accused drove the vehicles rashly and negligently, with the result the cyclist was killed on the spot instantaneously.

I shall briefly set out the salient features of the evidence given by P.Ws. 1 to 3. P.W. 1 says that the express bus came fast from west to east and dashed against the deceased on the south (side) of the road. Then the vehicle went some distance and then came to a stop. The cycle M.O. 1 was found damaged near the body of the deceased. The passengers complained to the accused as to why he drove the vehicle fast and caused the accident. In the cross-examination, it is elicited from P.W. 1 that he saw the accident at a distance of 10 yards. But P.W. 1 saw the carts and the sheep even at a distance of 150 feet away. The carts and the sheep were going on the tar road. The bus overtook the carts and sheep. The deceased was going in a cycle just in front of the bus at a distance of about 10 or 12 feet. The left edge of the bumper hit him. The bus went to the mudroad by about 3 feet on the south. No doubt, it is elicited from P.W. 1 that, in order to avoid the sheep, the cyclist also turned to south and hit the vehicle on the left extreme of the bumper. But this answer Will not undermine the effect of the evidence of P.W. 1 as noticed above. The criticism against the evidence of P.W. 2 is that he did not notice which part of the vehicle hit the cyclist. But substantially the evidence of P.Ws. 2 and 3 corroborates the evidence of P.W. 1. In fact, P.W. 3 speaks to the bus coming in the centre of the road. He further says that it was coming on the south of the sheep and the carts and the cyclist was going ahead of the bus. The front bumper hit the cyclist. In the course of the cross-examination of P.Ws. 1 to 3, the case set up by the accused in his (section) 342, Criminal Procedure Code statement was not put to any witness. The entire cross-examination of the witnesses was certainly different from the plea of the accused in his (section) 342, Criminal Procedure Code statement.

Both the Courts below have disbelieved the evidence of D.Ws. 1 to 5. I have been taken through their evidence and I am not impressed with their testimony.

The body of the deceased was found on the mud portion on the southern side of the road, about 10 1/2 feet away from the edge of the cement road. The accused ought to have been prudent and careful enough not to negotiate through the right half of the road, namely, southern half of the road, when the two bullock carts stopped and sheep were moving about and the cyclist was going ahead of the bus. It is very clear from the way in which the bus was driven, namely, the moving of the bus to a distance of nearly 79 feet from the place where the deceased lay, as revealed from the tyre marks to a length of 79 feet, and from the marks found as a result of impact of the left bumper on the cyclist and the cycle, that the accused was rash and negligent in ploughing through as if it were on the southern side of the road, in utter disregard and indifference to the risk involved. He ought to have exercised enough caution and have driven slowly, according to the conditions of the traffic on the road. P.Ws.1 to 3 have been consistent in their evidence that the accused drove the bus fast and their evidence to that effect has not