K.C. Bhanu, J.
1. Challenging the judgment dated 29.5.2002 in Criminal Appeal No. 19 of 2001 on the file of the Metropolitan Sessions Judge, Visakhapatnam, the present revision case is filed.
2. The case of the prosecution is that on 11.1.1998 at about 5.30 p.m., while the deceased was proceeding on a scooter to Vizianagaram, another scooter driven by PW 9 came in opposite direction and dashed him and as a result, he fell down and it is at this time, revision petitioner who was driving the truck bearing No. ADJ 9062 while overtaking a lorry, dashed against him and as a result the deceased died on the spot. Basing on the report given by PW 1, police registered the case, investigated into and after completion of investigation, filed charge-sheet for the offence punishable under Section 304-A, Indian Penal Code.
3. To substantiate the case of prosecution, 13 witnesses PWs 1 to 13 were examined and got marked 7 documents Exhs. P1 to P7. Exh. Dl is marked on behalf of the defence. Accepting the evidence of prosecution, the trial court, vide judgment dated 29.12.2000 in C.C. No. 63 of 1998 on the file of Eighth Metropolitan Magistrate, Visakhapatnam at Gajuwaka, found the accused guilty for the offence punishable under Section 304-A, Indian Penal Code, 1860 and sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000 in default to suffer simple imprisonment for a period of three months. On appeal, the appellate court confirmed the conviction and sentence recorded by the trial court. Hence, the revision.
4. The learned Counsel for the revision-petitioner firstly contended that revision-petitioner/accused was not driving the vehicle at the relevant point of time of the accident. The other contention is that the accident was not the direct result of negligent act of the revision-petitioner but it is a sudden act, whereunder another scooter dashed the scooter of the deceased as a result of which he fell down on the middle of the road and exactly at that time the truck driven by the petitioner was coming and there was no scope or possibility for the petitioner to stop the vehicle in such a situation and, therefore, the accident was not the result of direct dash against the deceased. The learned Counsel also cited some authorities and he prays to allow the revision.
5. On the other hand, the learned Additional Public Prosecutor contended that both the courts below gave concurrent findings and the said findings cannot be interfered with unless they are shown to be illegal or improper or incorrect. Hence, he prays to dismiss the revision.
6. Revisional jurisdiction of this court under Sections 397 and 401, Criminal Procedure Code is truncated one. Unless the findings of the courts below are based upon no evidence or improper or illegal or incorrect, this court will not interfere with the same. To test the findings of the trial court, it is necessary to refer to the evidence adduced by the prosecution.
7. The taking of place of accident is not in dispute and the death of deceased in the said accident is not in dispute. The first contention raised by learned Counsel for the revision-petitioner that the revision-petitioner was not driving the vehicle, cannot be accepted in view of the evidence of PW 9 who stated that the petitioner was driving the vehicle at the time of the accident. When he categorically stated that the petitioner was driving the vehicle at the time of the accident, it is not challenged. Once a witness has stated a fact and it is not challenged in cross-examination, it must be presumed that such a fact is an admitted fact.
8. As regards the other contentions, in order to find a person guilty from the offence punishable under Section 304-A, Indian Penal Code, the prosecution has to establish that there was rashness or negligence on the part of the driver of the vehicle. Rashness not only consists of high speed but also not taking proper care and caution. Negligence, on the other hand, is a breach of duty cast on a person. As rightly pointed out by the learned Counsel for the petitioner, it is not a case where the truck directly dashed the scooterist while he was proceeding on the road. It is stated by PWs 4 and 9 that before the truck dashed against the scooter of the deceased, another scooter had come in opposite direction and dashed against the scooter of the deceased, as a result of which, the deceased fell on the road and it is at that time the truck driven by its driver while overtaking a lorry dashed the deceased as a result of which he sustained injuries and died on the spot.
9. The learned Counsel for the petitioner placed strong reliance on a decision in Kurban Hussain Mohammedali Rangwala v. State of Maharashtra : [1965]2SCR622 , wherein it is held as follows:
To impose any 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 cause sine qua non.
10. To the same effect, learned Counsel for the petitioner relied on a Full Bench decision of Kerala High Court in Dr. V. Rugmini v. State of Kerala 1987 Crl LJ 200, wherein it is held as follows:
To sustain a charge of causing death by negligent act it is necessary that the death should have been the direct result of the negligent act. That act must be the proximate cause, without any other supervising act or intervention.
11. A perusal of the above decisions, it is clear that the act must be the proximate cause without any other supervening act or intervention. In this case, the supervising act or intervention is dashing of the scooter of the deceased by another scooter resulting in falling down of the deceased on the middle of road. If that preceding act was not there, certainly negligence in causing the accident can be attributed to the driver of the truck. It is in the evidence that after dashing the deceased, the truck went further and stopped at a distance of 50 ft. It means that it was going at a controllable speed. Since another scooter dashed against the scooter of the deceased, which is a sudden act and cannot be predicted by anybody, it may not be possible to stop the vehicle or halt to in such a situation to avert the accident.
12. Learned Counsel for the petitioner relied on another decision in Mahadeo Hari Lokre v. State of Maharashtra 1972 ACJ 185 (SC), wherein it is held that if a pedestrian suddenly crosses the road without taking note of the approaching bus, there is every possibility of his dashing against the bus without the driver becoming aware of it and that the bus driver cannot save accident, however, slowly he may be driving and, therefore, he cannot be held to be negligent in such a case. In the case on hand also, the deceased suddenly fell down on the ground as another scooter dashed against his scooter. Therefore, it is not a direct hit or dash against the deceased by the truck. It was a sudden act and, therefore, no negligence can be attributed to the petitioner. This aspect of the case has been completely overlooked by the trial court as well as the appellate court in arriving at a conclusion whether the petitioner was negligent or not in driving the vehicle. For the foregoing reasons, the conviction and sentence recorded by the courts below are liable to be set aside.
13. In the result, criminal revision case is allowed. The conviction and sentence recorded against the revision-petitioner/ accused by the trial court as confirmed by the appellate court, are set aside. Revision-petitioner/accused is acquitted and set at liberty. The fine amount, if any, paid by the revision-petitioner shall be refunded to him.