K.C.Agrawal, J. - (1.) THIS is a revision by the accused who has been convicted under Section 304A of the Indian Penal Code by the two courts below and has been sentenced to one year's rigorous imprisonment.
(2.) ACCORDING to the case of the prosecution on 15th March, 1970 the accused -applicant was driving bus No. 2567 R. J. L. when he dashed against the rickshaw of one Badru arid crushed him under the wheels of the bus. In pursuance of the charge -sheet issued to the applicant he appeared before the Court and made a statement under Section 257A of the Code of Criminal Procedure denying that Badru died in any accident under the wheels of his bus. He although denied that there was a collision of his bus with the rickshaw of Badru but admitted that he was driving the aforesaid bus on March 15, 1970. It was, thereafter that a charge under Section 304A Indian Penal Code was framed against him to which he pleaded not guilty. The prosecution produced 10 witnesses who deposed about the accident were Nawab (P.W. 1), Aziz (P.W. 2), P.W. 4 (Achchey Lal and Ibrahim (P.W. 5). Achchey Lal (P.W. 4) and Ibrahim (P.W. 5) were the occupants of the rickshaw which was being pulled by Nawab (P.W. 1). Nawab (P.W. 1) and Achchey Lal (P.W. 4) were the two rickshaw pullers who were coming behind deceased Badru on the aforesaid date and they saw the accident. All these witnesses stated that the bus came from the side of Kosi and the rikshaw of Badru was coming from the, side of Barhana at the time when the bus which was being negligently and carelessly driven by the accused applicant collided with the rikshaw of Badru. When Badru was attempting to run away towards the kachchi patri to save his life he came under the wheels of the bust and was crushed. The statements of these, witnesses were belayed by the Magistrate and be found that it was proved beyond doubt that the accident was the result of the rash and negligent driving of the bus by the applicant on the aforesaid date. On the finding the applicant was convicted under Section 304A and was sentenced to undergo rigorous imprisonment for one year. In appeal, the learned Sessions Judge substantially agreed with the finding given by the Magistrate and found that the applicant was extremely careless in turning his bus towards his right hand without caring for the traffic on the opposite side. On this finding the judgment of the Magistrate was affirmed in appeal and the conviction was maintained. Against these judgments of the courts below the present revision has been filed.
(3.) THE learned Counsel for the applicant urged that in order to hold a person guilty of the offence under Section 304A, it is necessary to establish that the death is directly due to such driving and that the rash or negligent act of which the accused is held to be guilty is the direct or proximate cause of the death. On this basis the learned Counsel contended that as a matter of fact what really happened was that after the bus collided with the rickshaw of Badru he attempted to save himself and that the accused applicant also applied his brakes for stopping the bus but the brakes failed as a result of which and on account of his own fault Badru came under the wheels of the bus. It was also contended in this connection that, in fact, the bus was not being driven at a speed or in a manner which could be considered as negligent act on the part of the accused applicant. The death, of Badru, according to the submission of the learned Counsel, was purely an accident and, therefore, the applicant could not be convicted of the offence under Section 304A of the Indian Penal Code. In this connection the learned Counsel also invited my attention to the statement of the accused -applicant made under Section 345, Cr. P. C. and also to the judgment of the learned Sessions Judge where he found that the applicant having taken the bus for driving on the aforesaid date with the defective brakes was responsible for the accident. Criticising the judgment of the lower appellate court the learned Counsel contended that the brakes, in fact, were not defective when the bus was taken out by the applicant from the workshop but were broken because of the fact that the accused applied the same with force to save the deceased Badru.;