1. Respondent Ranjitkumar Chatarjee was the Assistant Station Master at Fatehabad at the material time. Respondent Yeshwantrao was the pointsman then. Both of them were charged separately under Section 101 of the Railways Act for transgression of Rule S. R. 37 (2) and Rule 52 of General Rules for the Indian Railways respectively. Yeshwantrao was also charged under sections 304a and 337 i. p. c, The driver of the train coming from Ujjain to Fatehabad Mr. Anthony was also prosecuted along with them. All the three accused were acquitted by the Additional District Magistrate Railway Lands, Indore. The State preferred appeal against this order of acquittal. At the preliminary hearing the appeal against Anthony was dismissed by the order dated 23-7-1958. The present appeal relates to the remaining two accused.

2. The incident for which they were prosecuted occurred at Fatehabad Railway Station in the morning of 2-1-1956 when the passenger-train running between Ujjain and Mhow and driven by Mr. Anthony collided against the passenger train bound for Ratlam which was standing at the Fatehabad Railway Station by the Station Platform i.e. on line No. 1, The two engines collided against each other with consequent damage to the passenger bogies resulting in the death of two of the passengers and injuries to seventeen.

3. The admitted facts anterior to the accident were that accused Ranjitkumar Chatarjee received charge from Mr. Joseph another Assistant Station Master on duty upto 6 P.M. on 2-1-1956 at that time. He called Pointsmen Abdulgani and Yeshwantrao and directed Yeshwantrao to set up the point with the aid of keys Nos. 1 and 4 given to him so as to receive 435 UP on line No. 3. Yeshwantrao set the line as directed and brought back key No. 3 which comes out on applying key No. 4 at the locking point. It is also beyond doubt that the point thus set was interfered with and the line was reset in such a way that 435 UP would get on to line No. 11 instead of line No. 3 even when the main from Indore side namely 448 Down was standing on line No. 1. It is also clear that the signal for receiving 435 UP in the station yard was given and this brought in that train on line No. 1.

4. In this state of facts charge against Chat-arjee is that he disobeyed S Rule No. 37 (2) by not keeping the keys properly locked in the keyboard with the key of the Board in his personal pos-session thereby enabling Yeshwantrao to interfere with the point already set.

5. The charge assumes that he did not give specific direction to reset the point so as to receive 435 UP on platform No. 1.

6. Charge against Yeshwantrao is that he took away the key No. 3 without permission from Mr. Chattarjee and by using it interfered with the point already set so as to make the train 435 UP go on line No. 1 thereby endangering lives of the passengers of both the trains and thereby disobeyed Rule 52 of the General Rules.

7. The learned Magistrate held the charges against both not established.

8. He held that it had not been affirmatively proved that the key of the key-board had not been kept by Mr. Chatarjee in his possession after receiving key No. 3 from Yeshwantrao. According to the learned Magistrate 'possession' of a material object meant continuing exercise of claim to exclusive use of it and that keeping the key of the key Board either in the drawer or on the table by Mr. Chatarjee did not mean he did not keep it in his possession. He therefore held him not guilty of disobeying S. R. No. 37 (2).

9. As regards Yeshwantrao he held that the explanation given by him that he had been given key No. 3 by Mr. Chatarjee for resetting point as the train from Ujjain was late by 10 or 12 minutes appeared to be reasonable and probable and the statement of Abdulgani created doubt in his mind that Yeshwantrao took away the key without permission of Mr. Chatarjee.

10. It appears from the findings of the learned Magistrate that while holding Mr. Chatarjee not guilty no assumed as was the charge against him, that Yeshwantrao took away the key without his permission. The discussion regarding what constitutes juridical possession indicates that in considering the guilt of this accused it was not held that he had consented to the taking away of key No. 3 by Yesh-want Rao. But in holding Yeshwantrao not guilty he held it reasonable and probable that he had taken away the key with the knowledge and consent of Mr. Chatarjee.

11. Therefore although the learned Magistrate expressed that he entertained reasonable doubt about Yeshwantrao having taken away key No. 3 without Mr. Chatarjee's permission yet it cannot be gainsaid that the findings of the learned Magistrate involved Inconsistency and this makes it necessary to examine the case to find whether such a result is inevitable on the materials placed on record.

12. It appears clear from evidence of John Joseph, Assistant Station ' Master, and Abdulgani, Pointsman, at the other end that Mr. Chatarjee had given instructions to Yeshwantrao to set the point at his end i.e. Ujjain side so as to receive 435 UP on line No. 3 and had given to him key No. 4 which was required for the purpose. He had also given consistent instruction to Abdulgani to set the point at the other end so that the Indore train would be received on platform No 1 Abdulgani's evidence further indicates that Yeshwantrao brought back key No. 3 which could only be done after the point is set for receiving the train from Ujjain on line No. 3.

It is also clear that this point had been interfered with and reset so that the train 435 UP instead of getting on line No. 3 would get on line No. 1 while 448 Down train coming from Indore side was standing at the station. It is also clear that signals for receiving both the trains had been lowered. The result was that the train 435 UP entered the Station yard and got along line No. 1 instead of line No. 3 resulting in Head-on collision.

13. The question is how did key No. 3, which had been brought back to Assistant Station Master Mr. Chatarjee by accused Yeshwantrao, earlier after setting the point for line No. 3, leave his custody?

14. The two accused who are jointly tried for transgressing different rules set up contradictory versions. Mr. Chatarjee says he had kept the. key in the drawer which Yeshwantrao took away surreptitiously or without his knowledge and consent while Yeshwantrao says he was asked by Mr. Chatarjee to take it away & reset the point so as to receive 435 UP on line No. 1, as 435 UP was late by 10 or 12 minutes and he had an idea to bring it on line No. 1 after 448 Down had left the Station for Ratlam side.

15. There is no direct evidence to establish either of these two facts. But it appears that even if Mr. Chatarjee had the idea to take in 435 UP on Station platform, probably to suit the convenience of the passengers, it is beyond doubt that he could not have asked to set the point so as to receive 435 UP while 448 Down train was standing and even if Yeshwantrao had been given the key by him it could only be to set the point after 448 Down had left the Station yard. Yeshwantrao in interfering with the point while 448 Down was on the Station platform clearly transgressed Rule 52 of the General Rules for even on his own statement he was told by Mr. Chatarjee that the train from Ujjain side i.e. 435 UP was late and the other train 448 Down which had arrived on the Station would leave the Station first and that thereafter the Ujjain train would be received on the Station platform. If this be clear it is not clear why he should have interfered with point while Indore train was standing. He could have done so after the Indore train had left.

16. Rule No. 52 of the General Rules is as follows :

"No Railway servant shall interfere with any points, signals or their fittings, signal wires or any interlocking gear for the purpose of effecting repairs, or for any other purpose, except with the previous consent of the Station Master."

17. If then pointsman Yeshwantrao interfered with the point already set by the use of key No. 3 so that the train from Ujjain side would come on the line No. 1 while the train 448 Down was standing on that line it cannot be said that he did so with the previous consent of Mr. Chatarjee. He is therefore clearly guilty of disobeying Rule No. 52 of the General Rules. He will also be responsible for his gross negligence in causing injuries resulting in their death and grievous hurt.

18. As regards Mr. Chatarjee there is no direct evidence that he left the key No. 3 on the table and did not put it on the key-board. But it is certain that if he had complied with the rule and had kept key No. 3 on the key board and locked the same and put the key of the key-board inside the drawer Yeshwantrao would not have been able to take the key No. 3 of the point from the kev-board after opening the same without attracting his attention. Bherulal's evidence is that he lowered the signal for 435 UP on the instructions of Mr. Chatarjee.

19. There are therefore two probabilities. One is as told by Yeshwantrao that Mr. Chatarjee wanted to bring 435 UP on line No. 1 after 448 Down had left Fatehabad Station and gave the key No. 3 to him or permitted him to take the same in advance for its being used only after standing train had left. Or Yeshwantrao who must have learnt of the intention of Mr. Chatarjee took the key in advance and used it erroneously. The latter alternative is not possible unless Mr. Chatarjee had kept the key No. 3 at a place accessible to Yeshwantrao. There is no third believable alternative. It is not possible to hold that Mr. Chatarjee asked Yeshwantrao, to use key No. 3 even when the train 448 Down was standing on the platform.

20. S. R. No. 37 (17). (18) and (19) of the Subsidiary Rules of the Western Railway provide : S.R. 37 (17) :

"The two pointsmen will, after carrying out their instructions, take up their respective positions at the advance points and will exchange 'All Right' signals with the Station Master."

S. R. 37 (18) :

"Until the Station Master receives such 'All Right' signals from both pointsmen, and where points are fitted with point indicators, until he has personally seen that the point indicators are indicating the correct lines, he will not order signals for either trains to be lowered."

S. R. 37 "(19) : "The Station Master must personally inspect the facing points for the second subsequent arriving trains and see that they are correctly set and locked before signals are lowered for such trains. He must also keep the keys of these points in his personal possession until the trains to be crossed have arrived intact....."

21. It will thus be clear from these Rules that where two passenger trains are to cross at a particular Station great responsibility is cast upon the Station Master. He has to personally satisfy that the points are correctly set and locked, must exchange 'All Right' signals on both sides, that he must keep the keys in his possession securely so as to prevent anybody from interfering with the line and then alone he should order lowering of the signal. In this case Bherulal's evidence is that he was ordered by Mr. Chatarjee to lower the signal. There is no reason to disbelieve him as the signal had been actually lowered and 435 UP steamed in. When the signal was lowered for receiving 435 UP train coming from Ujjain the Station Master had not personally inspected the facing points for this train which was to arrive subsequently nor must he be in possession of the keys of the facing point.

22. There was therefore negligence on his part either in leaving the key of line No. 3 so as to be accessible to the pointsman Yeshwantrao or parting with it before the arrival of 435 UP safely on line No. 3. It may be that he may have given instructions that it was to be used after the 448 Down train had left the Station. But giving such instructions does not relieve him of his responsibility to abide by the rule which was specially framed to avoid danger to public. Its meticulous adherence was indispensable.

23. But it is said that the only charge against him was that he left the key on the table and that if there is some doubt about it then he deserves to be acquitted.

24. This contention is not tenable. It cannot be believed that Mr. Chatarjee had kept the key of the key-board in the drawer after 'All Right' signal had been exchanged after the key No. 3 had been put on the key-board and the same had been locked. For had that been so howsoever busy he might be Yesh-wantrao's coming leaving the point, opening of drawer and then the key-board, taking away the key could not have gone unnoticed by him.

25. Then even if it be assumed that on the facts which could and have in fact been proved some doubt exists as to whether the negligence con-sists in keeping the Key No. 3 on the table or it consists in handing it over with a direction to use it after 448 Down train had left the Station-yard as put forward by Yeshwantrao there is transgression of S. Rule No. 37 all the same and therefore accused Ranjitkumar Chatarjee can be held guilty of transgression of the Rule in question.

26. With facts which could be proved it was doubtful what was the exact nature of transgression of Rule 37 ? Whether it was in leaving the key on the table unattended or in handing it over to pointsman even before the passenger train standing on the platform had left the Station. He could for that reason have been charged under Section 101 of the Railways Act for disobedience of Rule 37 of the General Rules in either of these particulars and therefore under Section 237 of the Criminal Procedure Code he could be convicted even in the absence of finding which one should be held proved. In the present case it cannot be said that there was prejudice and if the charge had been the other there would be a plausible defence.

27. The result is that the appeal in respect of each of the two accused deserves to succeed and each of them ought to be convicted, Ranjiikumar Chatarjee under Section 101 of the Railways Act for disobedience of S. Rule No. 37 (2) of the General Rules and Yeshwantrao for disobedience of Rule No. 52 of the General Rules for the Indian Railways. Each of them is sentenced to rigorous imprisonment for six months. No separate punishment to Yeshwantrao is called for on the ground that his selfsame act amounted to of--fences under Sa, 304A and 337 of the Indian Penal Code. Section 71 of the Indian Penal Code permits only a single sentence. It is to be noted that the maximum punishment provided for under Section 101 of the Railways Act and that under section 304a i.p.c. is the same.

S.D. Shrivastava, J.

28. I agree that this appeal must be allowed and that each of the respondents must be held guilty of the offence under Section 101 of the Railways Act and must be sentenced to rigorous imprisonment for six months. I would, however, like to add a few words of my own.

29. Shri Shukla, while addressing on behalf of Ranjit Kumar Chatarji and Shri Seth on behalf of Yeshwantrao, pointed out to us certain discrepancies in the statements of the prosecution witnesses. It was quite apparent from the arguments of the learned counsel that according to the pointsman (Yeshwantrao) the fault was that of the Assistant Station Master (Ranjit Kumar Chatarji) while it was contended on behalf of the Assistant Station Master that the entire fault was that of the pointsman. We were also told that this difficulty for the prosecution arose since they were both tried jointly in the first Court.

It was urged that if the version of the pointsman was accepted, the Assistant Station Master must be held guilty; but if the case as put forward by the Assistant Station Master was believed, the pointsman must be convicted. It was strenuously argued that, both of them could not be convicted. The learned Deputy Government Advocate replied that both of them could not be acquitted, either.

30. Their Lordships of the Supreme Court have laid down the guiding rule in the case of Awadh Behari Sharma v. State Of Madhya Pradesh., (S) AIR 1956 SC 738 as follows :

"In a prosecution under Section 101, Railways Act, of a Station Master in connection with a collision at his station, the crucial issue, to impute negligence on the part of the Station Master, was whether, when the collision occurred, the signals had in fact been found lowered, the correct approach in a matter of this kind should be to determine the crucial issue not on a mere balance of oral evidence but on broader considerations and clear, probabilities. In a matter of this kind oral evidence is likely to be honestly discrepant and the question is not one of weighing the reliability of witnesses."

Bearing in mind the above principle, we have to reach the conclusion as to how the collision occurred, who was responsible for the collision, and where is the liability to be fastened.

31. I shall deal first with the case of Yesh-wantrao. There can be no manner of doubt that the collision resulted from the action of the pointsman in resetting line No. 1. This collision could not be possible unless and until Yeshwantrao adjusted the lines in such a manner that the train from Ujjain (435 UP) would come on the station platform line, where the train bound for Ratlam (448 Down) was already standing. It is also obvious enough that the signal for the train coming from Ujjain (435 Up) had been lowered,

32. Yeshwantrao said in his statement (under Section 342 of the Code of Criminal Procedure) that after he had first set the lines, Ranjit Kumar told him that the Ujjain train was late and that, therefore, after the departure of the Ratlam train (448 Down), the Ujjain train would be admitted on the platform line.

‘‘मेरे 3 नंबर की लाईन सेट करने के बाद रतलाम जाने वाली गाड़ी फतेहाबाद आई। रतलाम की तरफ जानेवाली गाडी जाने के बाद मुझे रणजीत कुमार ने 3 नंबर की वह चाबी जो मैंने इनको दी थी वापिस दी और कहा कि उज्जैन से ओन वाली गाडी लेट है। रतलाम की और जानेवाली गाडी पहिले निकाली जायेगी उसके बाद उज्जैन से आनेवाली गाडी ली जायेगी।’’ Accepting his statement that the key was given to him by the Assistant Station Master with advance direction as true, it is clear that the pointsman was directed to admit the 435 UP train on the Platform line only after the 448 Down train had left the Fate-habad station but not before that. Seeing with his eyes open that the down train was standing at the plaform, thhe pointsman could not in any case so reset the lines that the platform line became connected with the Ujjain line.

33. Having reached the above conclusion, we must hold that in every event Yeshwantrao was primarily responsible for this collision. Whether it was of his own accord that he brought the key and reset the points for admitting the 435 Up train on the platform line, or, as he says, he was handed overthe key by the Assistant Station Master, it is as clear as broad day light that no pointsman could do so when he knew that the train which was already standing at the platform was bound for Ratlam. Even if the up-train had not arrived and the collision had not taken place, the necessary consequence of the pointsman's resetting the lines was that the 448 Down train which was standing at the station would have gone towards Ujjain rather than towards Ratlam, its destination. It is positive that in resetting the point, Yeshwantrao was unmindful of its effect. For these reasons and for the reasons given in the judgment of my learned brother, I entirely agree that Yeshwantrao must be held guilty under Section 101 of the Railways Act.

34. Yeshwantrao has been separately charged under Section 101 of the Railways Act and under Sections 304A and 337 of the I. P. Code Section 26 of the General Clauses. Act lays down that

"Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence."

This section has, however, no application if the two offences are distinct. Section 101 (c) of the Railways Act is identical with Section 337 of the Indian I Penal Code, although the maximum punishments prescribed for the two offences are different. The accused, therefore, cannot be punished under both the provisions. But, in my opinion, section 304a of the penal code is a distinct offence. It is different from the one punishable under Section 101 of the Railways Act. That being so, Section 26 of the General Clauses Act does not apply and it has now to be seen whe-ther he must be punished under section 304a of the penal code also.

A person can be held guilty under section 304a, i. p. c. only when it is held that he 'caused' the death. A conviction can be sustained under Section 304A of the Indian Penal Code if death is the direct re-suit of a rash or negligent act of the accused. That act must have been the immediate, proximate and efficient cause, the causa causans and not merely the causa sine qua non of death, without the intervention of any other negligence. Emperor v. Onkar Ram-pratap, 4 Bom LR 679 and Satnarain Pandey v. Em-peror, ILR 55 All 263: (AIR 1933 All 232). In the instant case lowering of the signal for the 435 Up-train was also responsible for the collision. Therefore, the accused Yeshwantrao is not liable under Section 304A of the Indian Penal Code.

35. This brings me to consider the case of Ranjit Kumar, Assistant Station Master.

36. According to the statement of Abdul Gani P.W. 17, the lines had already been so set that the Up train was to arrive on line No. 3. Bherumal P.W. 18 stated that he lowered the signal for the 435 Up (Ujjain Local Train) under the direction of Ranjit Kumar. If the signal had not been lowered, the train coming from Ujjain could not enter the station. The signal having been already lowered, the, resetting of the lines by Yeshwantrao caused the collision. The combination of all the circumstances brought on the record, leads to the inevitable inference that Ranjit. Kumar must have given Yeshyantrao the direction in advance to admit the Up-train on the platform line, because that train was reported to be late and before the arrival of that train, the down train would have left.

The liability of Ranjit Kumar lies in the fact that key No, 3 went into the hands of Ycshwantrao without which he could not interfere with the point. Now, there are only two alternative possibilities, one of which must be accepted: either (i) Ranjit Kumar handed over the key to Yeshwantrao in advance and gave him the direction that after the down train bound for Ratlam departed, Yeshwant Rao would reset the line so as to let in the Up train corning from. Ujjain on the platform line (for the convenience of the passengers); or (ii) that Ranjit Kumar had so carelessly and negligently placed the key that Yeshwantrao could take it away to reset the lines without fully understanding his instructions.

The third possibility suggested in the defence of Ranjit Kumar that the key-board had been locked by him; that the key of the key-board had been kept in safe custody in the drawer of his desk and that Yeshwantrao took away the key surreptitiously and without his knowledge and reset the lines, is unbelievable and must be rejected. Likewise, his plea that the signal for the Up train was lowered without his instructions must be disbelieved.

37. It is quite reasonable to infer that Ranjit Kumar himself delivered the key to Yeshwantrao for resetting the line after the departure of the Down train and that Ranjit Kumar must not have imagined that Yeshwantrao would reset the line even when the down train standing at the station. This, there-fore, was rashness on the part of Ranjit Kumar.

38. The distinction between culpable rashness and culpable negligence has been aptly described by Holloway J., in these words :

"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precaution to prevent their happening. The imputability arises from acting despite the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that, if he had, he would have had the consciousness. The imputability arises from the neglect of the civil duty of circumspection."

In re Nidamarti Nagabhushanam. 7 Mad HCR 119.

39. At any rate, parting with the key in anticipation and giving directions in advance, was clearly in contravention of the rules cited in the judgment of my learned brother.

40. An exactly similar case went for consideration before the Chief Court of Lower Burma a rare coincidence indeed where an Assistant Station Master, expecting the arrival of a down mail train in his station, instructed his Jamadar to let it come into the station main line, and after it had come in, to set the points at the up end of the station so as to allow an up goods train to proceed from a side line. The Jamadar, without waiting for the mail to come in, set the points for the side line on which the goods train stood. On the approach of the mail, the Assistant Station Master allowed the signal to be given for it to enter the station without further .satisfying himself, as required by the rules by which he was bound, that the points were correctly set. The mail in conse-quence ran on the side line and collided with the goods train. It was held that the Assistant Station Master endangered the safety of many persons by his disobedience of the rules, and his conduct, therefore, brought him within the terms of Section 101 of the Railways Act. (See Emperor v. Atchataramayya, 9 Cri LJ 352 (LB).

41. Even on the second possibility that Yeshwantrao did not fully grasp the advance instructions given to him (to reset the line after the down train left the station) and he took away the key on his own and without the permission of the Assistant Station Master, Ranjit Kumar is clearly liable for his negligence. In determining the culpability of negligence, regard must always be had (i) to the nature of the employment of the accused, and (ii) to the special degree of care and caution in the discharge of his duty. Now, the duties of an Assistant Station Master are of a highly responsible character and the most important of all his duties is to see that no collision takes place. If the key of the platform line had been kept by Ranjit Kumar in his personal custody so that Yeshwantrao could not lay his hands on it, the collision would not have been possible.

Rules require that the Assistant Station Master must keep the key in his personal custody. The clear intention of the rule is that in no circumstance should it be accessible to any one unless it is delivered by the Assistant Station Master himself. Therefore, in whatever manner Yeshwantrao got the key, RanjiE Kumar must be held negligent and must be held to have disobeyed the rules, unless it was found that there was any force or fraud used against him. Specific and detailed rules have been proved by the authorities only with the object that such disasters may not happen.

42. For these reasons, in addition to those stated in my learned brother's judgment, I agree that respondent Ranjit Kumar must be convicted under Section 101 of the Railways Act. There is no charge against him either under Section 304A or 337 of the Indian Penal Code.

43. In the above view that I have taken, the conviction of one of the accused is not destructive of, nor inconsistent with that of the other. In every event, Yeshwantrao's action in resetting the point) makes him liable for the offence, even though his version is believed that the Assistant Station Master had instructed him that the Up train would be admitted on the platform line after the departure of the Down train. Similarly, having given advance instructions, whether Ranjit Kumar himself handed over the key to Yeshwantrao (rashness) or he had so kept the key that it was accessible to Yeshwantrao who took it away without his permission (negligence), in either case, Ranjit Kumar is liable for the offence.

44. Before I part with this case, I must observe with regret that Ranjit Kumar's attitude in the Court has been far from desirable. His case was not of an ordinary nature. There was no question of a guilty intention. He was a senior officer charged with high responsibilities. He should have been repentant for what happened when, owing to his rashness or negligence, the collision occurred at the cost of innocent human lives. He should have boldly and in a straightforward manner, placed before the Court the true position and circumstances in which the collision occurred. His statement under Section 342, Criminal Procedure Code is not at all rational.

45. Yeshwantrao in fact deserved a more severe punishment than we are awarding him; but his statement under Section 342, Criminal Procedure Code has impressed me as very near truth and that entitles him to indulgence on the question of sentence.