(1.) THE accused was convicted for the above offence on the allegation that on 30. 6. 1983 at 4. 55 p. m. at Thirupapuliyur ,Lawrece Road, he drove Bus No. T. N. F. 9633 in rash and negligent manner and caused the death of Ramesh aged 15 years who was riding as a pillion rider in a bicycle.
(2.) THE prosecution case was that the deceased was studying in a school at Cuddalore staying with P. W. 1 who was a B. A. III year student. On the date of occurrence, P. W. 1 took the deceased in the carrier of his bicycle and was returning home from school when the chappals worn by the deceased got entangled in the back wheel of the cycle and fell down and the deceased jumped down from the cycle in a rash and negligent manner dashed against the deceased and crushed him to death on the spot. THE occurrence was witnessed by P. Ws. 2, 3 and 5 who were nearby. P. W. 4, the father of the deceased, on receipt of information, went to the police station and laid Ex. P1 statement. P. W. 7, the Inspector of Police, registered Ex. P1 as Crime No. 459 of 1983 for an offence under Sec. 304, Indian penal Code, and took up the investigation. He visited the scene of occurrence and prepared plan, Ex. 4, observation mahazar Ex. P2 and held inquest over the dead body between 5. 30 p. m. and 8. 00 p. m. as per ex. P5 inquest report and then sent the body for post-mortem and the vehicle to p. W. 6 the Motor Vehicles Inspector who gave the opinion as per Ex. P3 that the vehicle did not have any mechanical defect. Ex. P7 post-mortem certificate marked by consent, shows that the death was due to shock and haemorr age due to the injury sustained in the vital organ of the brain, which would have been caused as a result of impact in the accident. THE charge-sheet was laid by P. W. 7, the investigating officer.
(3.) IT is this context that the learned counsel for the petitioner would make a legal submission that contributory negligence is unknown to criminal law. The prosecution has to prove that the accident was solely due to the rash and negligent driving by the accused and death was caused, not due to the intervention or the negligence of anyone else. Reliance is placed upon the decision of the Supreme Court in M. H. Lokre v. State of Maharashtr a , A. I. R. 1972 S. C. 221, wherein the Supreme Court held that when a pedestrian suddenly crosses a road without taking note of the approaching bus, there is every possibility of his dashing against the bus driver might not be able to avert the accident however slowly he might be driving. That position of law is well-settled. Though the concept of the contributory negligence is available under the Law of Torts, it is unknown to Criminal Law, and the accident should be attributable solely to the rashness and negligence of the accused.