JUDGMENT : Narasimham, C.J. - This is an appeal by the State of Orissa against the judgment of the Sub-divisional Magistrate of Koraput, acquitting the Respondent who was tried in his Court for offences under Sections 304-A and 279 Indian Penal Code. 2. The Respondent was the driver of a motor truck No. O.R.H. 10 plying in Koraput district. On the 21st March 1960 at about 9 a.m. the truck left Koraput for Jeypore fully loaded. Soon after crossing the outskirts of Koraput town when it entered the that for going down to Jeypore, there was a sudden bursting of the tyre of the right front wheel. The Respondent was unable to control the steering of the vehicle in view of the downward slope of the road, and after some desperate efforts on his part the vehicle swerved to the extreme right and fell into a drain on the right side of the road. The vehicle was damaged and one side and two of its wheels were in the air. In consequence of this accident many of the occupants of the truck sustained severe injuries and one of them, an old woman named Jayamma, died subsequently due to the tearing of the big vessels of the neck and the fracture of the cranium. The cleaner of the truck Appalaswamy (P.W. 7), two of the passengers namely Daya Sagar Bag (P.W. 1), one Sankar Rao and the Respondent driver himself sustained simple injuries. The accident was immediately reported at Koraput Police station and the A.S.I., J.C. Mohanty, (P.W. 5) hurried to the spot and took necessary steps. He also prepared a spot plan (Ext. 17) and sent the injured persons to the Hospital. The Motor Vehicles Inspector, B.C. Mukherji (P.W. 4) inspected the place of accident at 4.30 p.m. on the same day. He found that the right side front tyre had burst and that the front bumper, radiator grill, bonnet, mudguard etc were damaged. He further stated that the right front tyre had been completely worn out and was not in a serviceable condition. Though the foot braking system and the steering were damaged he as of opinion that they were in order before the accident and that the damage was due to the accident. He further stated that the right front tyre had been completely worn out and was not in a serviceable condition. Though the foot braking system and the steering were damaged he as of opinion that they were in order before the accident and that the damage was due to the accident. From the skid marks found at the place the Motor Vehicles Inspector was of opinion that the truck was proceeding at a speed of between 30 and 35 miles per hour and that the accident was due to the worn out condition of the tyre and to the speed with which the vehicle was being driven. During his cross examination the Respondent himself brought out that the canvas of the tyre was visible. It was further brought out that when a heavy truck of this type is proceeding down gradient the pressure is more on the front wheels. It was also elicited that even if the tyre burst when the vehicle was going down slope if the vehicle had been driven at a slow speed, the driver could, by controlling the steering, have prevented the truck turning turtle and that the vehicle would be upset only if the speed was high. 3. The occupants of the truck could not obviously give a correct estimate about the speed of the vehicle at the time of the accident. The cleaner estimated the speed at 10 miles per hour which is obviously a gross under-estimate. 4. Thus the facts found are these. Though the right front tyre of the vehicle was very much worn out and practically unserviceable with the canvas visible, nevertheless the Respondent drove the loaded vehicle down the sloppy road from Koraput to Jeypore. The steering and the foot braking system were in order before the accident. Consequently if the speed of the vehicle had not been abnormal any driver with average skill could have prevented the accident by controlling the steering, and applying the brakes properly. 5. As regards the speed of the vehicle the estimate given by the Motor Vehicle Inspector (P.W. 4) i.e. 30 to 35 miles per hour was challenged on the ground that though he stated that the skid marks on the road extended to a distance of 107 feet nevertheless from the spot plan prepared by the A.S.I. (Ext. 5. As regards the speed of the vehicle the estimate given by the Motor Vehicle Inspector (P.W. 4) i.e. 30 to 35 miles per hour was challenged on the ground that though he stated that the skid marks on the road extended to a distance of 107 feet nevertheless from the spot plan prepared by the A.S.I. (Ext. 17) who was the first to arrive at the spot the total distance travelled by the truck from the point where the tyre burst till its falling into the ditch, was only 85 feet. There is doubtless this discrepancy. Ordinarily the evidence of the A.S.I. on this point should be preferred because he was the first person to arrive at the spot. But his location of the spot where the tyre burst (marked B in Ext. 17) seems to have been based on what the witnesses told him. He has not stated that he himself found any skid mark at that point from which he could gather that that was the exact place. On the other hand the Motor Vehicle Inspector definitely stated that he noticed skid marks on the road for a distance of 107 feet. His attention should have been specifically drawn to the spot plan prepared by the A.S.I. showing the distance travelled by the truck after the accident to be 85 feet and he should have been asked to reconcile the discrepancy. Unfortunately, this was not done by either party with the result that there is a material discrepancy between the evidence of the Motor Vehicle Inspector on this point and that of the A.S.I But as the Motor Vehicle Inspector is in a much better position to notice the skid marks than the A.S.I. being an expert on the subject, I am inclined to prefer the evidence of the former. 6. I would accordingly hold that the accident was due (i) to the excessive speed of the heavily loaded truck especially while going down the sloppy road and (ii) to the rashness on the part of the Respondent in undertaking the responsibility of driving a vehicle with such a worn out tyre on the front wheel. 7. Clause (4) of Rule 85 of the Orissa Motor Vehicles Rules 1940 may be quoted in this connection: 85. Drivers of Public Service vehicle-Conduct and Duties of: The driver of a public service vehicle. 7. Clause (4) of Rule 85 of the Orissa Motor Vehicles Rules 1940 may be quoted in this connection: 85. Drivers of Public Service vehicle-Conduct and Duties of: The driver of a public service vehicle. x x x x (v) shall at all times exercise all reasonable care and diligence to maintain his vehicle in a fit and proper condition and shall not knowingly drive the vehicle when it or any brake, tyre or lamp thereof is in a defective condition likely to endanger any passenger or other person, or when there is not sufficient petrol in the tank of the vehicle to enable him to reach that next patrol filling edition on the route. This clause casts on the driver the duty of exercising reasonable care and diligence to maintain the vehicle in a fit and proper condition, and not knowingly to drive the vehicle if any of its tyres is in a defective condition. Though there is no direct evidence to show that the Respondent was aware of the defective nature of the tyre, nevertheless considering the facts that the tyre was so worn out that even the canvas was visible to the naked eye it is obvious that the driver would have noticed the same had he exercised even ordinary care and diligence, to examine the tyre before driving the vehicle. Such diligence was necessary because he was taking the truck to Jeypore along a down gradient and he knew fully well that while going down the slope the pressure on the front tyres would be greater and that it would be dangerous to drive a heavily loaded truck down the slope with such a defective tyre. There is thus no doubt that the Respondent was clearly guilty of criminal rashness and negligence. 8. The trial court would have convicted him of the offence but for the decision of a Single Judge of this Court, reported in 16 C.L.T. 1811 which, he thought, was binding on nim. The learned Government Advocate challenged the correctness of that decision and wanted that this case should be heard by a larger Bench for the purpose of over-ruling that decision. 9. It is there fore, necessary first to examine what was decided in 16 C.L.T. 181. The learned Government Advocate challenged the correctness of that decision and wanted that this case should be heard by a larger Bench for the purpose of over-ruling that decision. 9. It is there fore, necessary first to examine what was decided in 16 C.L.T. 181. There also the driver was prosecuted for an offence u/s 388, Indian Penal Code on the ground that he drove a bus with a defective front tyre which burst on the way, in consequence of which the thus dashed against a tree causing injuries to the occupants thereof. There was evidence to show that the tyre was worn out and that the accident was due to the bursting of the tyre. But the speed of the bus was found to be only 15 to 20 miles per hour and there was no gradient on the road. Hence the learned Judge observed that the driving was neither rash nor negligent. As regards contravention of Clause (4) of Rule 85 of the Motor Vehicle Rules the learned Judge pointed out that there was no evidence to show that the accused knew beforehand the defective condition of the tyre though he observed that it was open to the State to prosecute him for contravention of the said Rule. 10. Though most of the facts of the case in 16 C.L.T. 1811 are similar to those in the instant case, there is one distinguishable feature. There the speed of the vehicle at the time of the accident was found to be 15 miles per hour and the road was a level road. Here, according to the Motor Vehicle Inspector, the speed of that truck was between 30 and 35 miles per hour which was excessive, considering the fact that the truck was going along a down gradient from Koraput to Jeypore. 11. Apart from the aforesaid distinguishing feature the contention of the learned Government Advocate is that contravention of a statutory rule which requires the driver to exercise reasonable care and diligence is itself an important circumstance to prove the rashness and negligence on the part of the Respondent and that the mere fact that the Respondent could have been prosecuted for contravention of the Rule will not exonerate him from criminal liability for his rash and negligent act. There is considerable force in this contention. There is considerable force in this contention. It is true that contravention of every statutory rule under the Motor Vehicle Act will not by itself show that the act of the driver was rash or negligent, but contravention of some of the rules may lead to such an inference. Rule 85(4) quoted above expressly enjoins on the driver the duty of exercising reasonable care and diligence in maintaining his vehicle and requires him not to drive a vehicle, knowing that any of its tyres is in a defective condition. Before starting on a journey it was the Respondent's duty as the driver of a public service vehicle, to examine the condition of the tyres, especially when he knew that the vehicle would be driven along a down gradient. Had be exercised this elementary precaution he would have noticed the defect in the tyre. The omission to do so must in the circumstances of this case amount to criminal negligence. I would however hold that he must have known the defective condition of the tyre and yet drove the vehicle with criminal rashness. 12. Culpable rashness and negligence have been explained in several decisions in the past, but it is sufficient for the purpose of this case to refer to the following passage at page 799 of Ratanlal's Law of Crimes (20th Edition): Culpable rashness is acting with the consciousness that the mischief and illegal consequences may follow but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effects will follow but in circumstances, which show that the actor has not exercised the caution incumbent upon him and that if he had he would have had the consciousness. The imputability arises from neglect of the civic duty of circumspection. Here the Respondent was guilty of both culpable rashness and culpable negligence. He was rash in undertaking to drive the truck with such a worn out tyre thereby running a great risk, in the faint hope that nothing serious may happen. The imputability arises from neglect of the civic duty of circumspection. Here the Respondent was guilty of both culpable rashness and culpable negligence. He was rash in undertaking to drive the truck with such a worn out tyre thereby running a great risk, in the faint hope that nothing serious may happen. He was ligant in not driving the vehicle with due care at slow speed and in not controlling the steering with a view to prevent the vehicle from falling into the ditch even after the tyre had burst. As the Motor Vehicles Inspector pointed out if the truck had been driven at a slow speed the driver could have by proper application of brakes and controlling the steering, brought the truck to a standstill on the road itself. 13. In a later Division Bench decision of this Court reported in 17 C.L.T. 3592 it was pointed out that where a driver contravened the provisions of Rule 166 of the Orissa Motor Vehicles Rules 1940, that contravention was itself an important element to prove rashness and negligence on his part. Hence the observations made by a Single Judge in 16 C.L.T. 1811 may be said to have been impliedly over ruled by the observations in that later Division Bench case and it is unnecessary to refer this case to a larger Bench merely in order to examine the correctness of the principle laid down in 16 C.L.T. 181.1 Merely because there is an alternative remedy by way of a prosecution for contravention of a rule under the Motor Vehicle Rules, it cannot be laid down as a general proposition that the contravention of a specific rule under the aforesaid Rules clearly casting a duty on the driver to be vigilant, cannot be taken as a circumstance to show negligence or rashness on his part in driving the vehicle. It is true that this circumstance must be judged along with other facts and circumstances proved in the case to decide whether he is guilty or not. But it is also an important circumstance which cannot be completely overlooked. See in this connection AIR 1944 Nag 3285 and AIR 1953 Pat 456. 14. For these reasons I allow the appeal and set aside the order of the lower court, convict the respondent u/s 304-A, Indian Penal Code and Section 279, Indian Penal Code. But it is also an important circumstance which cannot be completely overlooked. See in this connection AIR 1944 Nag 3285 and AIR 1953 Pat 456. 14. For these reasons I allow the appeal and set aside the order of the lower court, convict the respondent u/s 304-A, Indian Penal Code and Section 279, Indian Penal Code. It is however not necessary, for the ends of justice, to send him to jail now especially after the lapse of more than 2? years after the incident. The primary responsibility for allowing the truck to be driven with such a worn out tyre must rest on the owner of the truck. Hence, for the offence u/s 304-A, Indian Penal Code, I would sentence the respondent to a fine of Rs 200/- (Rupees two hundred) only; in default of payment of fine he shall undergo rigorous imprisonment for two months. No separate sentence is necessary for the offence u/s 279, Indian Penal Code. Final Result : Allowed