ORDER
J.M. Mahapatra, J.
1. This revision is directed against the order of the 2nd. Addl. Sessions Judge, Berhampur, maintaining the order of the Addl. Chief Judicial Magistrate, Berhampur, convicting the petitioner under Sections 279 and 304-A, IPC and sentencing him to rigorous imprisonment for six months and to pay a fine of Rs. 100/- in default to undergo rigorous imprisonment for ten days for the conviction under the latter offence, no separate sentence having been passed under the former conviction.
2. The facts of the case, most of which are undisputed, may be briefly stated thus. On 8-5-1983 at about 9 a.m. the ill-fated Jeep bearing No. ORG 8248 was being driven by the petitioner, who was the regular driver of the vehicle, an the occupants of the vehicle were the informant (P.W. 4) a Junior Engineer, working in Harabhangi Project who was proceeding to his village Patrapur with his family members consisting of his wife and three children. The vehicle was coming from Ichhapur side and proceeding towards Gopalpur. At the Pathara by-pass turning, while the petitioner turned the vehicle to the right, the vehicle dragged on to its extreme left and overturned by the side of the road after taking three somersaults. As a result of the incident the informant (P.W. 4), his wife (P.W. 5) and their two children, P.Ws. 6, and 7 aged respectively about 11 years and 12 years sustained minor injuries, while Pranay, their son of tender age sustained severe injuries on his person and succumbed to the injuries sometime after the incident. P.W. 4, lodged a plain paper FIR at Gopalpur Police Station as per Ext. 4. P.W. 12, the S.I. of Police, Gopalpur Police Station registered a case against the petitioner and took up investigation. He examined the witnesses, sent the injured for medical examination and took steps for the examination of the spot and the vehicle by the M.V.X. On completion of investigation he submitted charge sheet against the petitioner Under Sections 279, 337 and 304-A, IPC.
3. The plea of the petitioner at the trial was that although he was the regular driver of the Jeep in question and was driving it at the material time, he was not driving it speedily or carelessly. It is also pleaded that the accident did not take place for any fault of the petitioner.
4. In order to prove its case, prosecution has examined as many as twelve witnesses, of whom P.W. 2 is the M.V.I. who examined the vehicle and the spot on 6-8-83, P.W. 3 is the Doctor who examined the informant, P.W. 4, P.W. 8 is the Doctor of the Medical College, Barhampur who held post-mortem examination on the dead body of the deceased who met his death as a result of the accident, P.W. 10 is the Doctor who examined the petitioner for injuries on his person, P.Ws. 4 to 7 are the witnesses to speak regarding the incident, P.W. 12 is the Investigating Officer who enquired into the case and submitted charge sheet, while the remaining witnesses P.Ws. 1, 9 and 11 are formal witnesses.
5. The learned appellate Court on a careful scrutiny of the evidence on record agreed with the findings of the learned trial Judge and came to hold that the petitioner at the material time was driving the ill-fated Jeep bearing No. OXC 5248 in a rash and negligen manner, and that the death of the deceasec Pranay Kr. Panigrahi resulted directly from the rash and negligent driving of the petitioner. Both the learned trial Court and the appellate Court found that the accident tool place either due to the loss of control of the vehicle by the accused-driver as a result of high speed, or due to the failure of the accused to negotiate the vehicle in a perfect manner a the point of turning. The road was clear and fairly wide. There was no obstruction either of vehicular traffic or of the pedestrians. If the driver had been conscious and careful in driving, he would have negotiated the turning in a manner so that the accident would not have taken place. The skid mark of the length of about 80 feet at the junction point would indicate that the driver had applied brake to stop the vehicle which was in fairly high speed, and as the driver could not control the speed and could not take the turn in the manner he was supposed to do as a driver, the vehicle moved to the extreme left and turned turtle.
6. During the revision (sic) of the appeal the finding of the learned Appellate Court was challenged mainly on the ground that he had wrongly found the petitioner to be driving the vehicle at a high speed and that he was driving it rashly and negligently. It is sought to be contended that the finding of rashness and negligence having been based on the finding of high speed cannot be sustained. It is also argued that the report of the M.V.I., Ext. 1, should not have been relied upon by the trial Court and the appellate Court, as the M.V.I. P. W. 2 did not legally prove his report by stating in his evidence all what he found at the spot and has recorded in his report, Ext. 1. It is further contended that it was the duty of the prosecution to prove the criminal rashness and negligence on the part of the accused, and it was necessary to further prove that the death of the deceased was directly attributable to the rash and negligent driving of the vehicle by the petitioner. In other words, the death must be the direct result of rash or negligent act of the petitioner and that act must be proximate and efficient cause without intervention of another’s negligence. It must be, the causa causans, it is not enough that it may have been the cause sine qua non (See AIR 1965 SC 1616: (1965 (2) Cri LJ 550) approving of the observation of Sir Lawrence Jeakins in (1902) Bombay LR 679 Emperor v. Omkar Rampratap).
7. During the hearing of the case, I was taken through the impugned judgment and the material evidence on record. The learned counsel for the petitioner also argued at length on different contentions raised by him. The main thrust of the argument of the learned counsel for the petitioner was that there was no criminal rashness or negligence on the part of the petitioner, and there were also no evidence that the vehicle was moving in a high speed, and even assuming that it was in a high speed, the speed itself does not go to prove the rashness on the part of the petitioner. On a perusal of the evidence on record, and agreeing substantially with the contentions raised by the learned counsel for the petitioner that the speed of the vehicle was not expressively high, yet the evidence of the witnesses examined on the side of the prosecution namely, P. Ws. 4 to 7 and also considering the evidence of D.W. 1, it cannot be said that the petitioner did not at the material time drive the vehicle rashly and negligently resulting in the incident which caused the loss of a human life and caused injury to three persons.
As to the speed of the vehicle, D.W. 1 and occupant of the vehicle on the rear seat has deposed that the vehicle was moving at a speed of 40 k.m. per hour. According to P. Ws. 4 and 5, the vehicle was in a high speed, although the speed in kilometre per hour was not deposed to. The Junior Engineer, P.W. 4 in charge of the vehicle was supposed to be acquainted with the speed of the vehicle, as he was in charge of the vehicle and was regularly moving in the vehicle in course of his duty, P.W. 5, the wife of P.W. 4 was also supposed to be acquainted with the speed. They have categorically stated in their evidence that they asked the accused-driver not to drive in such a high speed, but the driver did not pay any heed to their words. The admitted facts of the case are that when the vehicle took a turn near Pathara Junction, the driver could not control the vehicle, as a result of which the vehicle took a turn to the left and fell down after taking three turns, P.Ws. 6 and 7 who are the children of P.Ws. 4 and 5 have also spoken regarding the high speed in which the vehicle was moving. It is no doubt true, as contended on behalf of the petitioner and as supported by authorities, that high speed in driving of a vehicle does not by itself amount to rash and negligent driving. If the accused-driver was driving the vehicle on the highway and had negotiated the distance safely, it could not have been said that he was driving rashly or negligently because of the high speed. It is only because of the turning where the accident took place, and it is because of the speed that the accused could not control the vehicle and met with the accident, that the question of high or low speed becomes material for consideration. Even assuming for the sake of argument that the vehicle was moving at 40 k.m. per hour at the material time as deposed to by D.W. 1, the accident is directly attributable to the fact that the petitioner could not control the vehicle in turning to the right from the main road. As a driver of the vehicle the petitioner was supposed to know at what speed he was to negotiate to turn the vehicle to the right so as to avoid any accident. The presence of skid mark on the road would also go to show that the petitioner applied brake to slow down, but the vehicle could not be controlled and it moved to extreme left and then turned turtle thrice and injured the occupants of the vehicle. It would thus appear from the foregoing discussions, that even assuming that the vehicle was moving at a normal speed, be it 40 k.m. per hour or even 60 k.m. per hour, the fact remains that as the petitioner failed to negotiate the turning in a proper manner and as he could not properly control the vehicle in the process of turning, the accident took place. It would thus be noticed that irrespective of the question of speed, the accident is directly attributable to the rash and negligent driving of the petitioner.
A few authorities have been cited at the Bar as to what amounts to criminal rashness and criminal negligence. In the Law of Crimes by Ratanlal and Dhirajlal’s (23rd Edn. 1988) at page 1196 it is stated in the following words :
“Criminal rashness “is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has been arisen, it was the imperative duty of the accused person to have adopted.”
In one of the decisions of this Court in the case of Ladukishore Panigrahi v. The State, (1971) 37 CLT 1142, it is held that :–
“In order to amount to criminal rashness or criminal negligence, it must be found that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences.”
In the said decision it is also held that merely from the speed of the vehicle, without other considerations of adverse surroundings, situation and circumstances existing at the time of the occurrence, it cannot be said that the act of the accused would amount to a criminal rashness or criminal negligence.
8. Even keeping the case of the petitioner at the maximum that he was not driving the vehicle at a very high speed, the facts and circumstances of the case in which the accident took place appear to speak volumes about the rashness and negligence on the part of the petitioner in driving the vehicle at the material time when the accident took place. On the face of the evidence on record that the accident took place at the turning when the accused had turned the vehicle to the right and in the absence of any explanation on the side of the accused under what circumstances he could not control the vehicle while negotiating it and turning it to the right as a result of which the vehicle turned to the left and turned turtle would go to show that the petitioner was not free from blemishes. The evidence on record and the facts and circumstances of the case amply prove the criminal rashness and negligence on the part of the petitioner.
9. On the aforesaid analysis, I am inclined to hold, while agreeing with the finding of the learned appellate Court, that the conviction of the petitioner Under Section 279 and 304-A, IPC is perfectly justified. Considering the nature of the offence, the facts and circumstances of the case and the regard being had to the fact that the offender is a public servant, I am of the view that instead of sentencing him to any punishment, he should be released on his entering into a bond for Rs. 1,000/- (Rupees one thousand only) with one surety to the satisfaction of the trial Court and to appear and receive sentence when called upon during a period of one year and in the meanwhile to keep peace and be of good behaviour. I direct accordingly.
10. In the result, while maintaining the conviction I direct that the petitioner be released Under Section 360 of the Code of Criminal Procedure on probation of good conduct, as indicated above.
11. In the result, the revision is disposed of accordingly.