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1969 Supreme(Ori) 211
IN THE HIGH COURT OF ORISSA
B.K. Patra, J.
TIRAMAREDDI SATYANARAYAN - APPELLANT
Versus
THE STATE - RESPONDENT
Criminal Revision No. 239 of 1967
Decided On : 18-09-1969
O.P. Mohapatra and G.B. Patnaik, for the Appellant; N.V. Ramdas, for the Respondent
Rash and negligent driving under Sections 279, 337, 338, and 304-A of the Indian Penal Code requires proof of a rash and negligent act. Mere speculation or opinion is not sufficient to establish rashness or negligence.
Headnote:
RASH AND NEGLIGENT DRIVING - SECTIONS 279, 337, 338 AND 304-A, INDIAN PENAL CODE - INTERPRETATION AND APPLICATION - CONVICTION SET ASIDE.
Fact of the Case:
The petitioner, an experienced bus driver, was convicted of rash and negligent driving under Sections 279, 337, 338, and 304-A of the Indian Penal Code. The accident occurred when the petitioner's bus, loaded with 50 passengers, failed to climb a steep gradient and rolled backwards, resulting in the death of two passengers and injuries to several others.
Finding of the Court:
The court found that there was no evidence to support the finding that the petitioner was driving the bus in the third gear, which was considered to be rash and negligent. The court also noted that the petitioner had 22 to 25 years of experience in driving and was familiar with the ghat section of the road.
Issues: Whether the petitioner was driving the bus in the third gear, which was considered to be rash and negligent.
Ratio Decidendi: The court held that negligence means breach of a duty caused by omission or commission of an act that a reasonable person would not do. In this case, there was no evidence to show that the petitioner was negligent. The court also noted that the Motor Vehicle Inspector's opinion that the petitioner might have been driving in the third gear was speculative and could not form the basis of a conviction.
Final Decision: The court allowed the petition, set aside the conviction and sentences imposed on the petitioner, and directed that he be acquitted.
JUDGMENT :
B.K. Patra, J. - The Petitioner was convicted u/s 304-A, 337, 338 and 279, Indian Penal Code in the Court of the Subdivisional Magistrate, Rayagada and sentenced to rigorous imprisonments for six months, two months, six months and two months respectively under each of the aforesaid four counts, the sentences to run consecutively.
2. The Petitioner is a driver and for 7 to 8 years before the occurrence which took place on 8.4.1965 was driving passenger buses on the Jeypore-Rayagada section. On 8.4.1965, he was driving a passenger bus from Rayagada to Jeypore. There were 47 passengers in the bus by the time it reached a place known as Gumma- Shortly after the bus left Gumma it reached the Ghat section of the road, the upgradient there being l 'x 18'. As the bus reached the top of the gradient, the engine failed to pull up. the vehicle. The Petitioner tried to change to load gear but the bus started to roll down backwards. The Petitioner advised the cleaner of the bus to place a stone under the wheel and it was done. Simultaneously the driver also applied brakes but despite all these, the bus rolled down backwards for about 30 yards and fell down into a ditch on its left side. When the bus rolled down backwards one of the passengers jumped down from the vehicle and fell down under it and was crushed to death. Several other passengers also received injuries. As the injured persons were being transported to Rajyagada in another vehicle, one of them died on tike way. That very evening p.w. 7 the Motor Vehicle Inspector, Koraput inspected the vehicle at the place of accident. He found that engine oil was thrown outside and underneath the vehicle, and that the hand brake was not working and was ineffective. The booster cylinder pipe was found detached from the cylinder. He was of opinion that at the time of accident, the driver might have been driving the vehicle in third gear but when the engine could not pull the vehicle in that gear, he attempted to change info higher gear but he could not succeed and in the meantime the engine stopped and the vehicle started rolling backwards. Again when the driver tried to engage the gear, due to backward motion of the vehicle the engine started in reverse direction causing the engine oil to be thrown out of the engine and smoke coming out of the engine. The foot brake which appeared to be in good condition was not effective due to the starting of the engine in reverse direction. He was ultimately of opinion that if the driver had changed into higher gear a little earlier, the vehicle might not have met with such a serious accident. After necessary investigation, the Petitioner was put on trial on the charges mentioned above.
3. The Petitioner pleaded not guilty and stated that at the time when the accident occurred he was driving the vehicle in the first gear. When the engine could not pull, the vehicle, he tried to put it on the load .gear but the engine gave a jerk and stopped. He then applied self starter and tried to put it on the load gear but it did not work. As by that time the bus had started rolling down, he asked the cleaner to put a big stone under the wheel. That was done but the vehicle did not stop and rolled down.
4. The Courts below held that the Petitioner was trying to negotiate the steep ?climb in the third gear and when the engine could not pull he tried to switch over to the load gear and failed. They thought that the bus being a heavy vehicle loaded with SO persons, it was the bounden duty of the driver to exercise ordinary prudence and caution and put the vehicle in the load gear so that it could pull up the vehicle. His failure to do so was considered to be a rash and negligent act which resulted in the unfortunate death of two persons and injuries to many others. In this view of the case, they convicted the Petitioner.
5. That an accident of the nature described above took place at the Ghat section of the Rayagada-Jeypore road on the 8th of April, 196S is not dispu
