JUDGMENT
K.L. Shrivastava, J.
1. This appeal is directed against the judgment dated 30th January, 1986, passed by II A.S J., Mandleshwar in S.T. No. 174 of 1984 whereby the appellant has been convicted under Section 307 of the Indian Penal Code and has been sentenced to undergo R.I. for 4 years and to pay a fine of Rs. 500/- and in default to undergo R.I. for 4 months:
2. It is not in dispute that the appellant Chhitoolal, at the relevant time, was bus-driver in the employment of Madhya Pradesh State Road Transport Corporation. The victim Kishan Rao (P.W.2) and his brother Madhusudan Rao @ Madhu Rao (P.W.6) and Vithal Rao (P.W.3) were in the employment of G. P.’Bhatia and Co. engaged in transport business. In the evening of 6-10-1984 at Maheshwar bus stand there was some dispute between the appellant and Kishan Rao (P.W.2) over passengers. Madhu Rao was also involved in the dispute and so was Mishrilal, the brother of the appellant.
3. According to the prosecution, after the incident at the bus-stand, referred to above, Kishan Rao left on cycle for the Police Station to lodge a report of the occurrence. After a few minutes, the appellant drove his bus behind him and near the hospital the appellant at about 6.00 p.m. dashed it against the cycle on which Kishan Rao was riding. As a result, Kishan Rao was thrown away and sustained injuries including fracture on his clavicle bone.
4. Kishan Rao was sent for, medical examination. Dr. M. K. Dixit (P.W.1) examined them on 6-10-1984. He found five injuries on the person of Kishan Rao and the connected report in Ex.P/2. For confirmation of fracture on the shoulder, Kishan Rao was referred to the M. Y. Hospital, Indore. Ultimately fracture on middle 1/3 left clavicle was detected vide Ex. P-12 which is admitted by the defence.
5. After the occurrence the appellant reached the Police Station. Madhu Rao (P.W.6) also reached there and lodged the report of the occurrence vide Ex.P/11.
6. On the basis of the aforesaid report a crime was registered and investigation was set afoot.
7. At the conclusion of the investigation, the appellant was prosecuted for attempting to murder Kishan Rao and for voluntarily causing simple hurt to Madhu Rao.
8. On the person of Madhu Rao also, Dr. Dixit found 6 simple injuries. Ex. P/4 is the connected report.
9. The appellant’s version is that there was no collision as alleged between his bus and Kishan Rao’s cycle. Kishan Rao had brought his bus at the Mandleshwar bus stand and the former driving Sanawad-Badwani passenger bus had reached there later. When two passengers boarded his bus for journey to Sanawad, the victim Kishan Rao, Vitthal Rao (P.W.3), Kailash (P.W.4) and Madhu Rao (P.W.6) objected that he could not carry the passengers in his as his time was over. On being told that as the passengers have no other means of journey to Badwani they boarded the bus, Kishan Rao and his aforesaid associates surrounded him and dealt him lathi blows. When his brother Mishrilal came to his rescue, Kailash dealt a rod blow on his head resulting in ableeding injury and taking Mishrilal in his bus he had gone to the Police Station for lodging a report and Kishan Rao and his associates are facing prosecution in Maheshwar Court.
10. At the conclusion of the trial the learned trial Judge acquitted the appellant of the offence against the person of Madhu Rao and convicted and sentenced him as already detailed-
11. The point for consideration is whether the appeal deserves to be allowed?
12. The version of Kishan Rao (P.W.2) at the trial is that when he was going to the Police Station by the right hand side of the road on a bicycle, the bus, which the appellant was driving had dashed against the cycle from behind. According to the witness, he had seen the bus coming from behind when it was at a distance of 15 metres. The witness has stated that on seeing the bus he had further moved away from the road. Madhu Rao (P.W.6) has stated that he had followed his brother to the Police Station. According to him the appellant had brought the bus by the side of the road and had dashed against the bicycle which Kishan Rao was riding. We have it in his version that Vitthal Rao (P.W.3) had later reached there and had asked him as to what had happened and he was told about the collision. Heeralal (P.W.5) who has his tea shop near the place of incident, has not supported the prosecution story and Kailash (P.W.4), who according to Heeralal, was sitting in his shop has given varying versions.
13. It is pertinent to point out that the appellant had himself lodged a report vide Ex.P-12 at Police Station regarding the occurrence at the bus stand and on its basis a crime under Sections 323 and 353 of the Indian Penal Code was registered. In this report he has admitted that his bus had collided against the bicycle which Kishan Rao was riding.
14. A confessional FIR is certainly not admissible but for the limited purpose, as pointed out in the decisions in Aghnoo Nagesia’s case, AIR 1966 SC 119 and K. H. Amulakh’s case, AIR 1972 SC 922. But as pointed out in the decision in Kanda Padayachi’s case, AIR 1972 SC 66 an admission of fact, however, incriminating, but not by itself establishing the guilt of the maker of such admission does not amount to confession within the meaning of Sections 24 to 26 of the Evidence Act.
15. On a careful consideration of the prosecution evidence coupled with that of admission by the appellant that there was collision I hold that the appellant’s bus had dashed against the cycle which Kishan Rao was riding. This admission is also a point in favour of the appellant.
16. From the evidence on record and the spot map it is clear that Kishan Rao (P.W.2) was going by the right hand side of the road and the appellant who was behind him and had to keep his vehicle to the left, had collided against the bicycle.
17. For the offence of attempted murder punishable under Section 307 of the Indian Penal Code it is necessary for the prosecution to prove that the accused had one of the four special mens rea mentioned in Section 300 of the Indian Penal Code which defines murder.
18. In the instant case the version of Kishan Rao (P.W.2) is that he had left the bus stand for the Police Station without stating to anyone that he was going to the Police Station and later having secured a bicycle from someone and had proceeded to the Police Station. The evidence of Vitthalrao (P.W.3) is that the appellant had started his bus after about 5-7 minutes of the departure of Kishan Rao. There is no evidence to indicate that the appellant had pursued Kishan Rao and in the context of ordinary dispute at the bus stand he could not be ascribed the motive for murder or any of the special mens rea mentioned in Section 300 of the Indian Penal Code. Further the force of impact was not such as to result into death. All considered I am of the view that the appellant’s conviction under Section 307 of the Indian Penal Code is clearly not sustainable on the material on record. He could not also be held- guilty of attempt to commit culpable homicide not amounting to murder punishable under Section 308 of the Indian Penal Code or for voluntarily causing grievous hurt.
19. This brings us to the question as to whether the appellant can be held guilty in respect of offence under Sections 279 and 338 of the Indian Penal Code.
20. Section 279 of the Indian Penal Code deals with rash or negligent driving and Section 338 ibid deals with rash or negligent act. A person is said to act rashly if he acts without caring about the consequences of his action. The mental attitude of the doer has to be inferred from the attending circumstances. Negligence indicates a different state of mind from that of rashness though it belongs to the same genus. It refers to want of proper care and caution.
21. Reference in this connection may usefully be made to the decision in State v. Ranjit kumar, 1960 MPLJ 185 = 1960 JLJ 308 from the mere fact that a motorist strikes against a person on the road, a presumption cannot be drawn that the accident was caused by the motorist’s negligence or carelessness. In several cases such collisions are merely accidental and are covered by the general exception provided in Section 30 of the Indian Penal Code. As pointed out in the D.B. decision in State v. Rajkishors, 1962 JLJ SN 25, the prosecution to be successful, has to establish on the part of the accused that degree of rashness or negligence as to render him guilty of an offence punishable under the penal law of this country.
22. In the decision in Kallu’s case, 1970 JLJ SN 20 convictions under Sections 279 and 304A of the Indian Penal Code were set aside in revision observing as under :
“It is not possible to draw an inference of rash and negligent driving upon the material on record …….The petitioner cannot be said to have driven the bus at a breakneck speed so as to endanger the life of the occupants or he is not shown to have done any act which might be considered to be rash and negligent and he is not shown to have failed to take the necessary precaution.”
23. It must be stated at this stage- mat as is clear from the evidence of Kishan Rao (P.W.2) the bus was being driven at a speed of only 40 Km./hour and keeping in mind the evidence that there was no traffic on the road, the speed cannot be said to be excessive. Further, in going to the wrong side of the road occasioning the collision resulting in grievous hurt to Kishan Rao, the appellant can certainly be held guilty of acting so negligently as to come under the clutches of Section 338 of the Indian Penal Code.
24. In the decision in Babulal’s case AIR 1968 Guj. 240 the Full Bench decision in State v. Gulam Meer, AIR 1956 MB 141 has been referred to and deferring from the view therein taken it has been held that Section 71 of the Indian Penal Code would have no application and sentence can be imposed in respect of offence under Section 279 as also under Section 338 of the Indian Penal Code.
25. The principle is that the special words derogate from the general ones. In the decision in Ragho prasad v. Emperor, AIR 1939 Pat. 338 it has been pointed out that where rash or negligent driving actually results in grievous hurt being caused to any person, an offence under Section 338. is committed and accused can be convicted under Section 338 but not under Section 279 and 338 of the Indian Penal Code.
26. On the facts and in the circumstances of the case, I am of the view that the appellant deserves to be convicted under Section 338 of the Indian Penal Code
27. On the question of sentence, the contention of the appellant’s learned counsel is that as the occurrence is an old one, and the appellant already has had a taste of jail life in connection with the crime, it is not in the interest of justice that he should be sent back to prison. In support of this submission reliance was placed on the decision “in Kamla Prasad’s case, 1985 MPWN 176. The aforesaid contention has force and must be allowed to prevail.
28. On a careful consideration, the appeal is partly allowed. The appellant’s conviction under Section 307 of the ‘Indian Penal Code is set aside and so also the sentence passed thereunder. He is instead convicted under Section 338 of the Indian Penal Code and is sentenced to R.I. for the period already undergone and to pay a fine of Rs. 1,000/- and in default to undergo R.1. for 2 months. Fine if deposited shall be paid to Kishan Rao as compensation as provided under Section 357(1)(b) of the Criminal Procedure Code, 1973.