Order.- The petitioner in this case was convicted of the offences under sections 279 and 304-A, Indian Penal Code, by the Additional First Class Magistrate, Kottarakara, in C.C.No. 200 of 1965 on his file, and sentenced to undergo rigorous imprisonment for six months for the offence under section 304-A. He filed an appeal in the Sessions Court, Quilon. The learned Sessions Judge dismissed the appeal and confirmed the conviction and sentence passed by the trial Court. Petitioner has, therefore, come in revision before this Court. On 8th September, 1965, at about 3-00 p.m. the petitioner was driving a service bus K.L.Q.No. 1911 along the Quilon-Shencotta road from west to east. One Janardhanan, the deceased, was proceeding on a bicycle along the same read from east to west. Janardhanan was knocked down by the bus and he fell on the northern side of the road. He was taken to the Hospital; and at about 6-50 p.m. on the same day, he expired as a result of the injuries sustained by him. The prosecution case is that the petitioner was driving the vehicle at a high speed on the wrong side of the road, viz., the southern side, and as a result of him rash and negligent driving he knocked down the cyclist, who was coming from the opposite direction on his proper side. Three witnesses were examined by the prosecution to prove this version. They are, P.Ws. 4, 5 and 8, According to the petitioner, he was coming on his proper side, namely, on the northern side of the road and the cyclist was coming on the wrong side, and when the cyclist approached the bus, he suddenly swerved to his left, as a result of which the cyclist knocked against the left side of the bus and fell down. Petitioner examined D.Ws. 1 and 2 in support of his version. The trial Court accepted the evidence of the prosecution witnesses and rejected that of the defence witnesses, and found the petitioner guilty of the offences charged against them. The learned Sessions Judge agreed with the trial Court’s finding, and confirmed the conviction and sentence. The learned Counsel for the petitioner raised three points before me. The trial Court accepted the evidence of the prosecution witnesses and rejected that of the defence witnesses, and found the petitioner guilty of the offences charged against them. The learned Sessions Judge agreed with the trial Court’s finding, and confirmed the conviction and sentence. The learned Counsel for the petitioner raised three points before me. They are: (1) the prosecution evidence cannot be accepted on the facts and circumstances of the case and his client was not guilty of the offences charged against him; (2)assuming that the petitioner was guilty of the offence charged under section 279, he was not liable for the offence under section 304-A, Indian Penal Code, because the accident happened not as a result of rash and negligent act on the part of the petitioner, but as a result of the negligence of the deceased, and (3) in any view of the matter the sentence awarded is excessive. The learned Counsel for the petitioner took us through the whole of the evidence in the case. Ordinarily, I would not have gone into the evidence when the findings of the lower Courts are concurrent. But in this case I feel that the Courts below have missed one important aspect, on the basis of which the oral evidence should have been appreciated. The road where the occurrence took place has a width of about 38 feet; and it is straight to a distance of about 200 feet; east-west. The evidence shows that the bus was coming at a very high speed almost through the middle of the road, suddenly swerved to the right, hit against the telephone post standing on the southern side of the road, passed through the telephone post and the stay wire, causing damage to the telephone post, and further proceeded to a distance of about 80 feet, before it could come to a stop. Exhibit P-6, the Mahazar prepared for the scene of occurrence, as well as for the bus and the cycle involved in the accident shows that the reaper fitted on the left side of the bus along its middle was dislocated to a dist?.nce of about 1½ feet. It also shows that the point on this side of the bus was scraped off for a considerable length. It also shows that the point on this side of the bus was scraped off for a considerable length. One of the headlights of the bus was badly damaged; and the evidence is that it was not due to the collision between the bus and the bicycle but as a result of the bus striking against the telephone post. The cyclist was thrown on the northern side of the road as a result of the collision. There can, therefore, be no doubt that the cycle hit the bus on its left side, and that the damage to the reaper and scratching off of the point were caused as a result of the cycle hitting the bus on this side. This important aspect of the case seems to have been lost sight of by both the Courts below. There can also be no doubt that the bus was swerved to the right, as a result of which it ran through the telephone post and the stay wire, in a desperate bid which the petitioner made to save the cyclist. I am, therefore, unable to accept the evidence of P.Ws. 4, 5 and 8 when they said that the cyclist was coming on the southern side of the road, the bus was also coming on the same side and the accident took place as a result of the bus proceeding on the wrong side. If that be so, it is impossible that the cyclist would have been thrown off on the northern side of the road and the bus would have been swerved to the south and run to southern extremity of the road. The damage caused to the reaper on the left side of the bus as well as the scraping off of the paint on the same side of the vehicle are not capable of explanation on any other basis. In fact, P.W. 4 has deposed in chief-examination itself that it is the left side of the bus which hit the cyclist. P.W. 8 also says that as a result of the hitting, the cyclist and the cycle were thrown to the north, and the bus swerved to the south and ran to the drain on the southern side of the road. D.W. 1 was a pedestrian who was passing along the road at the time of occurrence. D.W. 2 was a passenger in the same bus. D.W. 1 was a pedestrian who was passing along the road at the time of occurrence. D.W. 2 was a passenger in the same bus. Both these persons give evidence that the accident took place as a result of the cyclist, who was coming along the northern side of the road, suddenly swerving to the southern side, apparently with the object of going to his proper side, on seeing the bus approaching him. This evidence is consistent with the facts and circumstances adverted to above; and there is no reason for rejecting the same. The next question for consideration is whether the petitioner is guilty of rash and negligent driving, and Janardhanan died as a result thereof. The evidence of P.W. 8 shows that it was on an Onam day that the accident took place, that the road was fairly crowded and that it took place at a time when a cinema was about to commence at a theatre nearby. Exhibit P-6 shows that there was tyre mark on the road to a distance of about 98 feet. It is, therefore, not a case of the petitioner getting upset and loosing control of the vehicle after the accident took place. It is evident that he was coming at a terrific speed, that in his attempt to avert the collision between his vehicle and the cyclist, he applied his brakes, swerved his vehicle to the right; and that in spite of all his efforts, the vehicle could be stopped only after proceeding to a distance of more than 100 feet, and that too, after hitting against the telephone post on the extreme side of the road. Therefore. I have no hesitation to hold that the petitioner was driving his vehicle in so rash and negligent a manner as to endanger human life, and he is, therefore, guilty of the offence under section 279, Indian Penal Code. Petitioner’s Counsel contended that even assuming that the petitioner is guilty of the offence under section 279, he should not be held liable for the offence under section 304-A; because the death took place not as a result of the rash and negligent driving of the petitioner, but as a result of the cyclist coming on the wrong side of the road, and suddenly swerving to the proper side when the bus approached the cyclist. In support of this contention, petitioner relied on the decision in Mohmmadalli Rangawalla v. Maharasthara State1. The accused in that case was the manager of a factory engaged in manufacturing paints. During the course of manufacturing paints, fire broke out as a result of certain defective operations; and seven men working in the factory were killed. The appellant was charged under section 304-A, Indian Penal Code, on the ground that the accident took place because he allowed the manufacture of wet paints in the same room where varnish and turpentine were also stored, and this caused the death of the persons. The appellant was not even present in the factory at the time of the accident; and another person was in charge of the operations. The Supreme Court held that, though the appellant might be negligent in allowing the manufacture of wet paints in the same room where the varnish and turpentine were stored, it would not be enough to make the appellant responsible for the fire which broke out; and it was entirely due to the negligence of the person who was in charge of the operations. The Supreme Court therefore held that the death of the persons was not as a result of the negligent act of the appellant; and he was not therefore guilty of the offence under section 304-A, Indian Penal Code. Reference was made in this decision to the case in Emperor v. Omkar Rampratap2, wherein Sir Lawrence Jonkins interpreting section 304-A observed as follows: “To impose criminal liability under section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another’s negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non.” This view, as pointed out by the Supreme Court, has been generally followed by the High Courts in India and gives a correct interpretation of section 304-A, Indian Penal Code. But these decisions have no application to the facts of the case in hand. Reference was also made by petitioner’s Counsel to the decision reported in State of Madhya Pradesh v. Ranjit Kumar1. But these decisions have no application to the facts of the case in hand. Reference was also made by petitioner’s Counsel to the decision reported in State of Madhya Pradesh v. Ranjit Kumar1. This case related to a railway accident by collision of two engines, causing damage to passenger bogies, death of two passengers and injuries to several others. The accused in that case was charged for the offence under section 304-A, Indian Penal Code, and also for contravention of certain provisions of the Railway Act and the Rules thereunder. The trial Court held that the charges against the accused were not established and acquitted the accused. The State of Madhya Pradesh filed an appeal from the order of acquittal which was allowed by the High Court. Justice V.R. Nevaskar, one of the two learned Judges who heard the case, held that the death was caused as a result of the rash and negligent act committed by the accused, and the accused was guilty of the offence under section 304-A, Indian Penal Code, as well as under other counts. Justice S. D. Shrivastava, the other learned Judge constituting the Bench, held that the collision of the two engines took place as a result of the lowering of the signals by another person, and the accused was not liable for the offence under section 304-A Indian Penal Code. His Lordship relied on the decision in Emperor v. Omkar Rampratap2 in support of that conclusion. He, however, agreed with Justice Nevaskar in upholding the conviction under other counts, and also the sentence passed on the accused. The question whether, if a person is guilty of an offence under section 279, Indian Penal Code, and death is also caused as a result of that negligent act he will be guilty of the offence under section 304-A, if the accident or death would not have happened but for the negligent act of the deceased or some other agency, has not been considered by any of the learned Judges in this case. I do not therefore, consider this decision to be an authority on the point. The petitioner’s learned Counsel next cited the decision in Jahur Mia v. The State3. In that case, two persons died, while jumping out of a truck which collided with a railway engine. Some of the persons who remained in the truck escaped with minor injuries. I do not therefore, consider this decision to be an authority on the point. The petitioner’s learned Counsel next cited the decision in Jahur Mia v. The State3. In that case, two persons died, while jumping out of a truck which collided with a railway engine. Some of the persons who remained in the truck escaped with minor injuries. The learned Judge held that the death was not the result of any rash and negligent act on the part of the accused, but as the result of the deceased persons jumping out of the truck. The learned Judge proceeded to say that there was no finding in the judgment of the lower Court whether the deceased received the fatal injuries as a result of the jumping out of the truck or as a result of collision. In this view of the matter, the learned Judge set aside the conviction of the accused under section 304-A, Indian Penal Code, giving him benefit of doubt. This decision does not, therefore, support this petitioner. Learned Counsel for the petitioner also relied on the decision in Santnarais Pamdev v. Emperor4. That was also a case of collision between two motor vehicles as a result of which a woman travelling in one of the vehicles fell out of it and received injuries on the head; and she died. The conviction of the accused was set aside by the High Court on the ground that there was no finding by the Courts below that the accused was responsible for the collision of the vehicles. This is, therefore, no authority for the proposition contended for by the learned Counsel for the petitioner. On the other hand, it is a fairly settled proposition of law that a person accused of the offence under section 304-A cannot plead in defence that the death would not have occurred but for the contributory negligence on the part of the deceased. If, as a result of any rash and negligent act, death is caused, the person who is responsible for the rash and negligent act is liable for the offence under section 304-A, Indian Penal Code. In Frank Crosslay Woodward v. Crown1, a Division Bench of the Judicial Commissioner’s Court, Sind, held that the plea of contributory negligence finds no place in an indictment for criminal negligence. This view was upheld in Mohammed Bex v. Emperor2, and also in Jummu v. Emperor3. In Frank Crosslay Woodward v. Crown1, a Division Bench of the Judicial Commissioner’s Court, Sind, held that the plea of contributory negligence finds no place in an indictment for criminal negligence. This view was upheld in Mohammed Bex v. Emperor2, and also in Jummu v. Emperor3. Reference was made in the former case to a passage in Halsbury’s Laws of England, Hailsham Edition, Volume 9 at page 446, para. 760, which reads as follows: “If the prisoner’s negligent act or omission was the proximate and efficient cause of death, the fact that the deceased was himself negligent and so contributed to the accident or other circumstances by which the death was occasioned does not afford a defence to an indictment for manslaughter.” Reference may also be made to a decision in In re Ponnuswami4, where a plea of contributory negligence was negatived by the Court as unsustainable to a charge under section 304-A, Indian Penal Code. The Court stated as follows: “Contributory negligence, in the strict sense of the term, has no place in criminal law. If the petitioner was not guilty of negligence, he would not be liable under section 304-A, Indian Penal Code. The fact that the victim also contributed a little by his negligence is absolutely immaterial where there is ample proof that the petitioner had brought about the accident by his own negligence and rash driving......................He could and should have avoided the accident by his care and caution.” The same view is held by the High Court of Orissa, as will be seen from its decision in Fagu Moharana v. The State5. In the light of the above authorities, the petitioner is contention that the death would not have happened but for the negligence of the deceased in riding his bicycle on the wrong side of the road and swerving to the opposite side,-when the petitioner’s vehicle coming from the opposite direction approached the cyclist, is not sustainable. I therefore hold that the petitioner is guilty of the offence under section 304-A, Indian Penal Code also. The last point for consideration is the sentence awarded to the petitioner. The trial Court awarded six months’ rigorous imprisonment, and the lower Court confirmed it. I therefore hold that the petitioner is guilty of the offence under section 304-A, Indian Penal Code also. The last point for consideration is the sentence awarded to the petitioner. The trial Court awarded six months’ rigorous imprisonment, and the lower Court confirmed it. I would not have interfered with this sentence, but for the fact that it was awarded on the basis of a finding that the cyclist was coming on the proper side that the petitioner was driving on the wrong side and that the collision was a head-on collision. As pointed out above, this finding cannot be sustained. The prosecution evidence relating to circumstances under which the collision took place is hardly acceptable. I have found that, though the petitioner was driving at a reckless speed, the cyclist was coming on the wrong side and he suddenly swerved to the opposite side, when the petitioner’s bus approached the cyclist, and that, it was as a result of this, the bus hit the cycle causing the cycle and the cyclist being thrown away, and the death of the cyclist. There is, therefore, no doubt that the accused has also contributed to this result. Petitioner’s Counsel submitted at the Bar that the petitioner was convicted and sentenced on 25th January, 1966, and that he has already suffered rigorous imprisonment till 29th March, 1966, when he was enlarged on a bail by this Court; and he prayed that the sentence may be restricted to the term of two months and four days of rigorous imprisonment, which the petitioner has already undergone. In the circumstances of this case and for the reasons stated above, I uphold the conviction of the petitioner for the offences under sections 279 and 304-A of the Indian Penal Code, but reduce the sentence of rigorous imprisonment awarded to him to two months and four days, which he has already undergone. This revision petition is allowed to the above extent. M.C.M. ----- Petition allowed in part.