JUDGMENT : U. Lakshminarayana Bhat, J. The revision Petitioner was convicted by the Sub-Divisional Judicial Magistrate, Neyyattinkara in C.C. No. 36 of 1978 for offence under Sections 279, 337 and 304-A, I.P.C. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- and in default to undergo rigorous imprisonment for 3 months u/s 304-A, I.P.C. No separate sentence was awarded for the other offences. His licence was also cancelled for one year. In Criminal Appeal No. 128 of 1978 filed by him, the II Addl. Sessions Judge, Trivandrum confirmed the sentence, but reduced the substantive sentence to rigorous imprisonment for three months. 2. On 28.10.1977 the now deceased Thankamony, a girl aged 16 years and P.Ws. 1 to 3 and 11 and others travelled in a K.S.R.T.C. bus No. KLT 6754 (for short K.S.R.T.C. bus), driven by P.W. 9. The bus was proceeding from Trivandrum to Neyyattinkara along the highway lying west to east. The bus reached a place called Vedivanchancoil and stopped on the extreme left side of the road at the bus-stop. Thankamony and P.W. 11 alighted from the bus. Thankamony walked a few steps westwards on the northern side of the road. Just then another bus TNK 1487 of the Kattabemban Transport Corporation (for short K.T.C. bus) came from west to east along the northern side of the road, that is on the left side, driven rashly, negligently and at an excessive speed by the revision Petitioner and conducted by D.W. 1, struck Thankamony and hit against the backside of the K.S.R.T.C. bus. Thankamony was injured and thrown off. She was removed to the Medical College Hospital, Trivandrum, where she died the same day. The doctor, P.W. 12 sent an intimation Ext. P. 7 to the Medical College Police Station. P.Ws. 1 to 3 were also injured by the impact and were treated by P.W. 7 at the Neyyattinkara Government Hospital. On account of the impact the hind portion of the K.S.R.T.C. bus and the front portion of the K.T.C. bus sustained damages. P.W. 4, residing nearby, heard about the occurrence, went to the scene and from there to the hospital and saw the dead body of Thankamony. He immediately went to the Balaramapuram Police Station and gave Ext. On account of the impact the hind portion of the K.S.R.T.C. bus and the front portion of the K.T.C. bus sustained damages. P.W. 4, residing nearby, heard about the occurrence, went to the scene and from there to the hospital and saw the dead body of Thankamony. He immediately went to the Balaramapuram Police Station and gave Ext. P. 1 statement, on the basis of which the Sub-Inspector of Police, P.W. 17, registered a case as crime No. 152/77 against the accused. The two buses were got examined by the Motor Vehicles Inspector, P.W. 13. The Circle Inspector of Police, P.W. 18, held inquest over the dead body and prepared Ext. P. 12 report. Post mortem was conducted by P.W. 8. P.W. 18 prepared scene mahazar Ext. P. 2, seized M.Os. 1 and 2, questioned witnesses and after completing investigation, laid the charge. 3. The revision Petitioner pleaded not guilty before the learned trial Magistrate. P.Ws. 1 to 18 and D.W. 1 were examined, Exts. P 1 to P 12 and M.Os. 1 and 2 series were marked. 4. The revision Petitioner contended before the learned Magistrate that before reaching the scene, he had stopped the bus at several bus stops, that when he neared the scene of occurrence he heard the stop whistle blown by D. W. 1 and applied brakes and found the brakes had failed and immediately shouted that there was a failure of brakes and thereafter could not control the vehicle. 5. The learned trial Magistrate accepted the prosecution case, held that the revision Petitioner was negligent in driving the bus which had inefficient brakes and convicted and sentenced him as stated above. 6. The learned appellate Judge came to the conclusion that the revision Petitioner was guilty of having taken out the bus with inefficient brakes and also drove the bus at an excessive speed and failed to take any care in controlling the vehicle and accordingly confirmed the conviction. 7. There is now no dispute that the K.T.C. bus hit against Thankamony and caused her death and struck the K.S.R.T.C. bus from behind and damage not clear caused hurt to P.Ws. 1 to 3. That there was such an impact is spoken to by P.Ws. 1 to 5, 9 to 11 and also D.W. 1. The evidence shows that the injuries sustained by Thankamony and hurt caused to P.Ws. 1 to 3. That there was such an impact is spoken to by P.Ws. 1 to 5, 9 to 11 and also D.W. 1. The evidence shows that the injuries sustained by Thankamony and hurt caused to P.Ws. 1 to 3 were due to K.T.C. bus hitting against Thankamony and against the K.S.R.T.C. bus. The medical evidence shows that Thankamony sustained 13 external injuries and 3 very serious internal injuries, all ante mortem and died on account of the shock due to these injuries and these injuries could have been caused by being hit by a bus. The evidence of P.W. 7 shows that P.W. 2 had a contusion and P.Ws. 1 to 3 complained of pain. They were thrown off by the impact. 8. There is no dispute before me that the K.T.C. bus was driven by the revision Petitioner. That is also spoken to by witnesses P.Ws. 9 to 11 as well as D.W. 1. 9. The only contention urged before me by the learned Counsel for the revision Petitioner is that the finding of the court below that the impact took place on account of the rash or negligent driving on the part of the revision Petitioner is unsustainable on the evidence on record and the probabilities, that the incident occurred due to the sudden, unexpected and unforeseeable brake failure and the two courts below ignored the evidence in support of this plea. The revision Petitioner told the trial court that he applied brakes but the brakes failed and he shouted. This version is substantially supported by his conductor examined as D.W. 1. According to D.W. 1, two passengers had to get down at Vedivanchancoil and he blew the stop whistle when the bus was 100 feet away from the bus stop, that the revision Petitioner applied brakes and shouted "Matter omitted as not in English" that the bus was travelling on the left side at a very slow speed. 10. The Motor Vehicles Inspector P.W. 13, inspected both the vehicles and found damages on the hind portion of the K.S.R.T.C bus and on the front right portion of the K.T.C. bus. The certificate regarding the K.T.C. bus is Exh. P. 9. In Ext. 10. The Motor Vehicles Inspector P.W. 13, inspected both the vehicles and found damages on the hind portion of the K.S.R.T.C bus and on the front right portion of the K.T.C. bus. The certificate regarding the K.T.C. bus is Exh. P. 9. In Ext. P. 9 it is stated as follows: The foot brake was tested and found inefficient due to the leakage of brake fluid through the flexible connection at the wheel cylinder of the front right wheel. The hand brake was seen disconnected. The flexible connection at the front right wheel cylinder damaged and brake fluid was seen gone out. P.W. 3 in chief examination stated that a forcible impact may render the foot brake inefficient, that the foot brake system works on account of the activity of the brake fluid in the pipe and a forcible impact may cause damage to the pipeline and leakage to the fluid. In cross examination he stated the leakage was at the flexible connection and there was no impact near the flexible connection and that if brake fluid disappears there will be brake failure. He also stated that a driver will realise that the brake was not operating only by applying the brakes. 11. The above evidence will show that the possibility of damage to the flexible connection and the consequent leakage of brake fluid by the impact cannot be ruled out. But the question is whether the impact really caused such a leakage and whether there was no such leakage before the impact so as to render the foot brakes inefficient or useless. If the impact caused damage to the flexible connection and leakage to brake fluid one would normally expect brake fluid to be found at the scene of occurrence. The scene mahazar does not refer to the findings of any such brake fluid and the investigator also did not speak about its existence. If the foot brake was efficient and the leakage of the foot brake was due to the impact, one would expect the existence of tyre marks in the road. There is absolutely no evidence of such tyre marks. Two courts below ignored these scene vital circumstances which would go a long way in establishing that the leakage of brake fluid was not due to the impact and the brake fluid must have leaked at some place before the bus reached the scene. There is absolutely no evidence of such tyre marks. Two courts below ignored these scene vital circumstances which would go a long way in establishing that the leakage of brake fluid was not due to the impact and the brake fluid must have leaked at some place before the bus reached the scene. This is precisely the case put forward by the revision Petitioner and supported by D.W. 1. The two courts below merely assumed that the impact caused leakage of brake fluid totally ignoring the evidence indicating contra. Hence finding to that effect cannot stand. 12. My conclusion is that the foot brakes failed some time before the bus reached the scene and probably the revision Petitioner would not have been aware of it. There was no justification for two courts below to assume that even originally the foot brake was not working and the bus was being driven all along with the knowledge of the defective condition of the foot brake. Hence the conclusion of the learned Magistrate that the conduct of the revision Petitioner in not stopping the running bus after he found out the leakage earlier was a negligent act, cannot stand. 13. The learned Appellate Judge also considered the alternative case of the revision Petitioner that the foot brake did not operate on account of the brake failure. He was of the opinion that the revision Petitioner could have by reasonable precautions and exercising caution avoided the collision by swerving to the right side, that he could not do so on account of the high speed in which the bus was being driven, that he did not make any attempt to reduce the speed of the bus by operating gears and therefore he was guilty of rash and negligent driving. The learned trial Judge also held that the act of driving the bus with a disconnected hand brake was a negligent act. These conclusions are also challenged before me. 14. The learned Sessions Judge considered the evidence regarding the speed of the vehicle and accepted the same and came to the conclusion that the revision Petitioner was driving the bus at an excessive speed. It is argued that the witnesses have not given their estimate of the speed and therefore the vague evidence cannot be accepted. 14. The learned Sessions Judge considered the evidence regarding the speed of the vehicle and accepted the same and came to the conclusion that the revision Petitioner was driving the bus at an excessive speed. It is argued that the witnesses have not given their estimate of the speed and therefore the vague evidence cannot be accepted. That the bus was driven at an excessive speed (Matter omitted as not in English) was mentioned in the first information statement, Ext. P.1. P.Ws. 5, 10 and 11 also spoke to the same effect. It is true that when a witness uses the expression he is giving his subjective interpretation. However, I find that these witnesses were not at all cross-examined with reference to this part of their evidence. Hence the conclusion of the learned Sessions Judge that the revision Petitioner was driving the bus at an excessive speed cannot be interfered with. 15. P.W. 13 the Motor Vehicles Inspector, found the hand brake of the K.T.C. bus disconnected. The revision Petitioner did not have a case that the hand brake got automatically disconnected on account of the impact, nor was such a contingency suggested to PW 13 or to any other witness. It was under these circumstances that the two courts below came to the conclusion that the revision Petitioner was driving the K.T.C. bus with a defective or non-working hand brake. There is nothing in the evidence and the circumstance of the case to warrant interference with this conclusion. 16. Even assuming that the foot brake failed some time before the bus reached the scene of occurrence, the learned Sessions Judge considered whether the revision Petitioner was guilty of rash or negligent act and came to the conclusion that he had a positive duty to use due care and caution in driving a motor vehicle along a public way, that it was his duty to see that the vehicle was free from defect and since he failed in the discharge of his duty, he was guilty of a negligent act, as there was no suggestion on his part that the bus was being periodically checked up. The learned Sessions Judge further held that even if the foot brake failed, the revision Petitioner should have exercised due care and caution in avoiding collision by reducing the speed by changing gears and by swerving to the right. 17. The learned Sessions Judge further held that even if the foot brake failed, the revision Petitioner should have exercised due care and caution in avoiding collision by reducing the speed by changing gears and by swerving to the right. 17. It is necessary to consider the exact connotation of a criminally negligent act, as distinguished from a mere negligent act, which may be actionable as a tort. A person can be regarded as guilty of a culpable negligent act when he does not perform an act to which he is obliged. It is a breach of duty caused by omission to do something, which a reasonable man guided by considerations which regulate the conduct of human affairs would do or doing something which prudent and reasonable man would not do. It is absence of skill, care or diligence which is his duty to bring to the performance of his work. The driver of a motor vehicle in a public place has a duty to exercise due care and caution consistent with the circumstances in which he finds himself. Conduct which falls below the standard established for protection of others against unreasonable risk of harm, a standard measured by what a reasonable man of ordinary prudence would do under the circumstances is culpable negligence. Reasonable foresight is the criterion of negligence. If possibility of danger emerging is reasonably apparent, then to take no precaution is criminal negligence. If danger is only a mere possibility which would never occur to the mind of a reasonable man, there is no negligence in not taking extra-ordinary precaution. Generally speaking the test is, could the accident have been avoided, if the driver exercised that care and diligence which an ordinary cautious person using the road in a similar circumstance would have done? 18. The learned Counsel for the revision Petitioner strongly relied on the decision in In Re: Ambalal, AIR 1967 Mad 365 . That was a case where the accused was driving a car in one of the busy roads of Madras City, namely, the Mount road at a time when there was heavy traffic on the road moving on his right side and also coming from the opposite side. He was driving the car carefully and slowly and was moving from one pedestrian crossing point to another. He was driving the car carefully and slowly and was moving from one pedestrian crossing point to another. When he applied the foot brake, the brake did not operate and the motor car struck a boy, who died. The hand brake was also efficient. On these facts, the Madras High Court held that the driver was not guilty of rash or negligent act. Considering what the accused could have reasonably done as a careful driver in the circumstances, it was observed that there was heavy traffic on the right side of his car and there was nothing that he could have done. Accordingly it was held that he was not guilty of rash or negligent act. The facts of the present case are totally different from the facts of the above case. In the present case, the revision Petitioner was driving the bus at an excessive speed with a defective hand brake. There was no suggestion that there were other vehicles on the road coming from the opposite direction or that there were any vehicles on the road going in the same direction as the K.T.C bus and on the right side of the K.S.R.T.C. bus so as render it dangerous for the revision Petitioner to swerve his bus to the right side so as to avoid collision with the K.S.R.T.C. bus. In fact, the evidence is all the other way. P.Ws. 5 and 9 have uniformaly deposed that there were no other vehicles on the road and the K.T.C. bus could have been swerved to the right side and the K.S.R.T.C. bus overtaken without any dangerous effects. On these aspects the witnesses were not cross examined at all D.W. 1, the conductor working with the revision Petitioner at the time of the occurrence deposed that when the bus was 100 feet behind the scene of occurrence he blew his whistle so that the bus may be stopped at the next bus stop to enable two passengers to alight and the revision Petitioner applied the foot brake and shouted that the brake was not working. This is sufficient to show that even when the bus was sufficiently far away from the scene of occurrence the revision Petitioner realised that the foot brake was not working. He must necessarily have known that the hand brake was inoperative. This is sufficient to show that even when the bus was sufficiently far away from the scene of occurrence the revision Petitioner realised that the foot brake was not working. He must necessarily have known that the hand brake was inoperative. As a prudent driver bound by law to exercise care and caution, it was his duty to try to reduce the speed by operating the gear lever and also avoid the collision by overtaking the bus on the right side. There was absolutely no suggestion at the stage of evidence that there were pedestrians or other vehicles on the right side and they could have been in danger had the revision Petitioner overtaken the stationary K.S.R.T.C. bus. The established facts clearly show that collision could have been avoided, if the revision Petitioner exercised that care and diligence which an ordinary cautious person using the road in similar circumstances would have done. He was, therefore, guilty of a negligent act in driving the bus as he did. His negligent driving was directly responsible for the impact causing the death of Thankamony, causing hurt to P.Ws. 1 to 3 and causing damage to the K.S.R.T.C. bus. 19. The revision Petitioner told the trial court that he could not control the vehicle. From this statement it is argued by the learned Counsel for the revision Petitioner that the revision Petitioner tried to control the vehicle, but did not succeed in doing so. If he had done anything in trying to control the vehicle, he should have told the court about it, particularly in view of the burden imposed on him u/s 106 of the Evidence Act. He did not have a case that he tried to operate the gear lever so as to reduce the speed or that he tried to swerve the bus to the right or was prevented from doing so or chose not to do so to avert some other calamity which could have otherwise happened. There is also no substance in the contention urged on behalf of the revision Petitioner that the circumstances show only an error of judgment on the part of the revision Petitioner. On the other hand, the facts show that he faild to exercise any judgment at all, though he had a duty to do so. There is also no substance in the contention urged on behalf of the revision Petitioner that the circumstances show only an error of judgment on the part of the revision Petitioner. On the other hand, the facts show that he faild to exercise any judgment at all, though he had a duty to do so. Therefore I concur with the findings of the two Courts below that the revision Petitioner was driving the bus in such a negligent manner as to endanger human life and by such driving caused death of Thankamony, hurt to P.Ws. 1 to 3 and damages to the bus. There is no warrant to interfere with the conviction or the sentence imposed. I am also not persuaded to hold that there is any reason to reduce the period of disqualification visited upon the revision Petitioner. The revision is accordingly dismissed.