STATE OF M. P. v. BANNE KHAN BANNE — 1986 DIGILAW 131 (MP)

GULAB C. GUPTA, J. ( 1 ) THIS appeal is by the appellant State and is directed against the acquittal of respondent for offence punishable under section 304-A I. P. C. by judgment dated 294. 1982 passed by Shri A K. Jam, Judicial Magistrate First Class, Lucknadon in Criminal Case No, 220 of 1979. ( 2 ) RESPONDENT. Banne Khan was put on trial for en offence under section 304-A I. P. C. for driving truck C. P. C. 8211 in a rash and negligent manner on 22. 3. 1979 and causing death of Janiyabai. The fact that the appellant was driving the truck and Janiyabai died as a result of accident with it was not in dispute. The defence of the respondent, however, was that he was not during the truck in any rash or negligent manner and the accident was caused because Janiyabai suddenly crossed the road. The learned trial Judge found that the respondent was driving his truck in a high speed but held that speeding by itself is not the offence. According to learned Judge the accident had taken place because of the fault of Janiyabai who was an old lady that is how the respondent was acquitted. ( 3 ) THE submission of the learned Government Advocate is that the learned Judge has misread the evidence of witnesses and has wrongly held that the appellant was not negligent in driving the truck in high speed. According to him the negligence consisted not using the brakes and dashing the truck against Janiyabai who was on the road. It is submitted that even if slight precaution had been taken by the respondent the accident could have been averted. The learned counsel for the respondent however supported the order of acquittal and submitted that the conclusions recorded by the learned trial Judge are correct conclusions needing no interference of this Court. ( 4 ) POSTMORTEM report (Ex. P. 4) clearly indicates that Janiyabai the deceased was a person of normal built and had suffered injury on the front side of the chest resulting in fracture of 6th upper rib, besides contusions and lacerated wounds. Map of the spot (Ex. P-7) indicates that the accident has taken place on the left side of the road and the truck had stopped after traversing a distance of about 10 feet from the place of accident. Map of the spot (Ex. P-7) indicates that the accident has taken place on the left side of the road and the truck had stopped after traversing a distance of about 10 feet from the place of accident. The map would also indicate that if the truck had been turned towards the north side the accident would have been easily averted. Inspection report of the truck (Ex. P-8) would indicate that its steering and brakes were O. K. indicating that in case the respondent had wanted to turn the truck towards north he would have easily done so and would have stopped the same if he wanted. Rikhi (P. W. 1) is the first witness and had accompanied the deceased. According to him the truck came in high speed and without blowing the horn and dashed against Janiyabai. He has said that the road was straight and he had seen the truck at a distance of 100 yards. Akanilal (P. W. 3) is the other witness who had stated that the truck bad no load and was being driven with a high speed. According to him it came without blowing horn and dashed against his mother who died on the spot. In cross-examination he admits that his mother was walking on the road with him. They were first walking on the right side and when they saw the truck they turned towards the left side of the road. According to him he had turned towards the left side of the road when the truck was at a distance of about 20-30 steps. Dharamchand (P. W. 4) was one of the passengers on the truck and bas deposed that the truck was being driven at a high speed. According to him there were 14-15 women including the deceased on the road and the respondent bad blown horn. All the women heardthe horn and ran a Nay but the old lady turned to the left side. He further deposed that the truck was being driven at a high speed when it dashed. According to him he was sitting by the side of the driver. In cross examination be further deposed that because it was that the driver had pressed the accelerator with pressure and had kept the speed. This witness was neither asked nor had deposed that the driver took any step to avoid the accident. According to him he was sitting by the side of the driver. In cross examination be further deposed that because it was that the driver had pressed the accelerator with pressure and had kept the speed. This witness was neither asked nor had deposed that the driver took any step to avoid the accident. As has been observed earlier the brakes of the truck were in good order and if applied the accident might have been averted. The brakes were however not applied and similarly the steering was in working order but the truck was not towards the opposite direction to avoid the accident. In the context of this evidence the conclusion of the learned Magistrate that the truck was being driven at a high speed is the correct conclusion and is hereby affirmed. ( 5 ) IT is however, difficult to agree with the learned Magistrate that the respondent was not driving the truck in rash and negligent manner. A driver on a public high way is required to take all precautions to avoid the driving. Brakes and steering are provided for such safe purpose. The fact that they were not used by the respondent is indicative of the casualness with which he has taken his responsibility and obligation to the public. His driving in high speed and not using the brakes to avoid accident or steering to turn the vehicle towards north is indicative of his callous negligence. The learned Judge has apparently not cared to even read the basic law contained in section 304-A IPC and has wrongly held the driving in a high speed without attempting necessary precaution or control does not amount to rash or negligent act. Culpable negligence lies in the failure to exercise reasonable and proper care on the part of the driver causing death. It cannot be seriously denied that steering and brakes in a vehicle are provided to facilitate its safe and controlled driving and failure to use them when required is nothing but the failure to exercise reasonable and proper care making the act rash and negligent. Under the circumstances it is not possible to agree with the conclusion recorded by the trial Magistrate and hold that the accident has occurred because of the fault of the deceased. Under the circumstances it is not possible to agree with the conclusion recorded by the trial Magistrate and hold that the accident has occurred because of the fault of the deceased. The facts on the record clearly indicate that the deceased has done nothing except remaining on the road where she was and had died because of the failure on the part of the respondent to take necessary precaution to avoid the accident. Under the circumstances, this Court has no hesitation in finding the respondent guilty under section 304-A I. P. C. and convict him accordingly. ( 6 ) THEN, next important question is about the sentence to be imposed on the appellant. Section 304-A I. P. C. provides for a maximum sentence of two years rigorous imprisonment or with fine or both. Considering the callous negligence on the part of the appellant a jail sentence is considered necessary. Since the deceased had died a premature death because of the negligence of this respondent, her son is also entitled to compensation. Under the circumstances three months rigorous imprisonment together with fine of Rs. 5,000/- is considered just and sufficient and is accordingly imposed. In default of payment of fine the appellant shall undergo further rigorous imprisonment for nine months. The fine, if realized, shall be paid to Aknilal (P. W. 3), the son of the deceased as compensation. ( 7 ) SINCE the respondent is on bail, he is directed to appear before the Chief Judicial Magistrate Seoni on 16. 6. 1986 to receive this Judgment and undergo the sentence imposed upon him. .