R.C. Patnaik, J.
1. Having been convicted under Sections 279, 337, 338 and 304-A of the Indian Penal Code and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 500/-, in default to undergo simple imprisonment for one month for the offence under Section 304-A and to undergo rigorous imprisonment for three months for the offences under Sections 279 and 337 of the Indian Penal Code, which were confirmed by the Additional Sessions Judge, Phulbani in Criminal Appeal No. 57 of 1982 (32/82-B GDC), the petitioner has filed this revision assailing his conviction and the sentences imposed. It may be noted that the sentences were directed to run concurrently.
2. The petitioner was driving a truck bearing registration number ORS 5997 from Sudrukumna to the Kenduleaf depot at village Ghatatala on the jungle ghat road having a steep down-gradient on 12.3.1979 at 4.30 p.m. There were eight occupants, two of whom were inside the cabin and the rest on the truck. The truck dashed against a bamboo clump, then against the boulders and rolled upside-down and fell to a depth of 66 feet on the right side of the ghat road. Two of the coolies who were on the truck died. Rest of the occupants including the driver were severely injured. On the information of one of the occupants, investigation was taken up and the petitioner was placed on trial for the commission of the offences, as aforesaid.
3. His plea was that the accident took place on account of mechanical failure. Though he had applied the brakes, those did not work and the vehicle ran down the slope and went out of his control despite his best efforts.
4. Both the courts below relied upon the M.V.I.'s report. The M.V.I. opined that the vehicle was being driven in the second gear. He has further opined that the foot brake was in order. He also opined that a vehicle without four-wheel drive system should not have been taken on that steep down-gradient. The courts below mostly relied upon the version of the M.V.I, by way of justification of the conviction of the petitioner.
5. Merely because boulders were on both sides of the road or the road was a narrow one, it cannot be predicated that the driver was rash and negligent. Road certificate is not a must for plying a vehicle on a particular road. The question that was to be decided was: Was the driver rash and negligent in driving the vehicle? It is easy to be wise after the event. It is easy to say after the event that the driver should have driven the vehicle in the first gear instead of the second. But that inference is deduced from the fact that the vehicle went out of control while being driven in the second gear and the situation could have been, perhaps, avoided had it been driven in the first gear. But there is lot of difference between negligence and error of judgment. If the mistake was a bona fide one, one which an experienced driver could as well have committed, it would be an error of judgment but not negligence. Inference is not to be drawn from the fact that two persons died or a number of persons were injured. It is in the evidence of PW 6 that when the vehicle moved speedily, he asked the driver as to why he was driving the vehicle at such a speed. The driver answered that the brake had failed. That supports the driver's version. The statement of the accused has considerable force having been made at a time when the accident had not taken place and in that moment only truth could have come out of his lips. Hence, though the M.V.I. has opined that the brake was in order, it is any driver's experience that the brake sometimes, though rarely, fails for a while though otherwise it is in order. Existence of boulders on both sides of the ghat road is not a ground to be utilised against the driver to conclude that he was rash or negligent. I, therefore, differ from the conclusions of the courts below that the driver was rash or negligent and acquit him.
6. In the result, the judgments of the courts below are set aside and the revision is allowed.