BHANDARI, J. - (1.) THIS is an appeal by the State against the judgment of the sub-Divisional Magistrate, Bhim, dated 27th July, 1961, acquitting Chatar Singh, respondent, under sec. 304a I. P. C.
(2.) THE prosecution case is that the accused was driving a bus No. RJY 821, carrying passengers from Bhim, to Charbhuja. When he reached one mile from Police Station, Bhim, after taking a turn on the curve on the road, the bus dashed against Mst. Hunja and her minor son Krishna at a place where there was a culvert with the result that the parapet wall of the culvert gave way and the vehicle partly projected out of the road. As a result of the accident, Mst. Hunja and her son Krishan were pushed out of the road and fell down below the culvert. Mst. Hunja and the boy were sand-witched between the front bumper of the vehicle and the wall, resulting in injuries to them. Krishna received severe injuries and died instantaneously and Mst. Hunja also received severe injuries. In that bus, two police constables were travelling and one of them went to the police station, Bhim, and lodged a first information report. After investigation, the respondent was challaned under sec. 304a and 338 I. P. C. THE learned Magistrate has acquitted the accused on the ground that the tie-rod of the vehicle suddenly gave way, with the result that the respondent lost his control of the steering wheel and the vehicle dashed against the wall of the culvert, where Mst. Hunja and her son were standing. In this appeal on behalf of the State, the argument of the counsel for the State is that the bus was defective inasmuch as the pull and push rod of the steering wheel was not in order because the ball had worn out and it was kept in tact by tying it with a wire. The hand-brake was also altogether out of order. According to the mechanic, produced by the prosecution, at the time of the accident the wire with which pull and push rod was tied, gave way with the result that the steering wheel stopped functioning. As to the foot brake, the opinion of the mechanic is that it was in order, but after the accident it was also damaged. Learned counsel for the State had argued that it was the duty of the driver to have examined the defect in the tie-rod of the bus before undertaking to drive it. He has further argued that the driver failed to apply the foot brake in time, otherwise the bus would have stopped and the accident might have been averted. We have examined the evidence of the prosecution and we agree with the learned Magistrate that the accident took place as soon as the steering wheel went out of order. The respondent in his statement has stated that he applied the foot brake but the accident could not be averred. Under these circumstances, it cannot be said that the respondent had not applied foot brake in time. The only question that remains for determination in this appeal is whether the respondent knew that the pull and push rod was tied with a wire, which was likely to give way or that he should have taken care to examine that before undertaking to drive the vehicle, It has not been brought on record that it was the respondent, who had been driving the vehicle for a long time so as to impute him with the knowledge that the pull and push rod was tied with a wire. There is no evidence on the point that the accused knew of this defect in the pull and push rod. Thus, we cannot impute the knowledge of the defect to the respondent. The further question is whether it was his duty to have discovered this defect before driving the vehicle; To bring a case under sec. 304a and 338 I. P. C. it must be proved by the prosecution that the accused was guilty of culpable negligence. Even in a civil liability the law is that "the plaintiff would only succeed if he could show either that the defendant knew of the defect, or that it was a defect which would have been revealed by examination, or which from other indications, such as the behaviour of the vehicle, he ought to have known to exist. ' (Gibb-Collisions on Land p. 97, 5th Ed. ). The defect in the present case was such that it could not be detected without a meticulous examination of the machinery. It cannot be laid down that the driver of a vehicle should undertake such an examination before driving the vehicle. There is no evidence that this defect could have been within the knowledge of the driver of the vehicle. Under these circumstances, we are of the opinion that the criminal liability cannot be fastened on the respondent. The appeal is dismissed. . ;