(1) The accused in this case was convicted under S. 304-A and S. 337 of the Indian Penal code and sentenced to pay a fine of Rs. 2,000 and Rs. 200 in default to suffer rigorous imprisonment of six months and two months on each of these counts respectively. As it was felt that the sentences was inadequate, the case was directed to the be placed before the court dealing with criminal matter when the court a notice enhancement was issued by Palerkar, j.
(2) On 15th February 1964., the accused was driving his motor car on the Marine Drive, now known as Netaji Subhash Road, from North to south. At abort 5 - 30 P.m. that day Kunda the deceased who aged about twenty = one years, and her younger sister, about Vidya, aged about ten were crossing, it is said the pedestrian crossing near 'B' Road, Churchgate, at which the accused car knocked of this kunda died and the vidya received some injuries.
(3) There is a pedestrian crossing situated at the junction of 'B' Road and Netaji Subhash Road. There is Bus stop and the northern side of 'B' Road Corner, and Natraj Hotel is at the southern corner of that road the pedestrian crossing was indicated by tow broken transverse lines opposite the Bus to stop and two transverse broken lines opposite the Natraj Hotel onto southern side. There is board 'pedestrian Crossing' on the northern and sides near where the pedestrian board is displayed on the southern side the second set of transverse broken lines.
(4) The Story as given by vidya is that they had gone to the University of Club House, situated at 'B' Road as there was some function. They were a bit early and as there was some time for the function to start, they decided to go for the walk at the sea wall. They were crossing the road between the northern side of transverse line of when they were knocked down by the accused just about the time to her, was the car was proceeding at feast pace. The accused was driving the car. She did not hear the sound of broad and she did not the application of brakes. In cross - examination her story was that the before stepping on the crossing, they looked and saw that there were no vehicles near but there was not only car at along distance away from the approaching the from the right side. She court not say it position on the road. A suggestion of was made to her whether on seeing the car they ran. The suggestion was denied, she also denied that they dashed against the car while running.
(5) In connection with this incident two witness were examined, one Rupsingh sundering and another vishram vithoo, prosecution witnesses 2 and 3. Vishram vithoo has not been accepted by the learned trial Magistrate as are reliable witness as he was serving in this university of Bombay where the father of the deceased was employed and his presence at the scene appears to be doubtful. Rupsingh the learned Magistrate observes., was an independent witness. He is a professional driver and is employed at churchgate. At the time of the incident he come out of the 'C' Road which is to the north of 'B' Road, Similarly joining the Netaji subhash Road as does 'B' Road. He entered form this road on to Netaji subhas Road and he was one the left side in the third row. There was one of the car on his right any beyond that on the further right was the and car of the accused. According to him the car of the accused forty miles per hour. The accused applied to brakes the sound of which the he heard but the car knocked down the two girls. The car halted after about five to seven fell near the hedge. In cross - examination he said that he had approached the entrance to 'B' Road when the accident occurred. He didn't stop his car as the has to go to congress house = a conduct displayed usually in such cases. He further asserted in answer to court question that the girls were knocked down on the pedestrian crossing opposite the Bus stop.
(6) The accused in this written - statement and in his oral statement before the learned Magistrate said that he was driving his car at a speed or twenty to twenty - five miles per house when the girls were knocked down that the girls came running from the front of the cars on his left hand and the directly into the path of his car. He applied his brakes. At the time of the incident, the girls were in broken lines and the not in the northern set of the transverse line. He applied the brakes hard and they made a screaming sound. He applied the brakes after he had crossed over the no therein set of transverse lines. The marks because of the application of the brakes started from the north of northern set of lines and ended with the set. Some broken pieces of glass were behind his car. It may be mentioned that the car stopped between the two sets of the transverse lines. He examined his sisters who was in the car as defense witness.
(7) Mr. Jethmalani has exercised his privilege of challenging the conviction.
(8) Mr. Jethmalani contended that witness Rupsingh cannot be regarded as an independent witness but must be got - up witness inasmuch as the incident occurred on 15th February 1964, as the incident occurred while his statement come to be recorded on 2nd March 1964 after about seventeen days, no doubt the statement was recorded late . but on the other hand it cannot be regarded as the fail of the police that misstatement come to people to the involved in criminal cases even as the witnesses and the police must have as difficulty in tracing in criminal cases even as the learned magistrate is right in the regarding him as an independent witness.
(9) Mr. Jethmalani contended that an attempt has been made to shift the point of impose. For this purpose of he relies upon the statement of kunda which was recorded on the next days., i.e., 16th February 1964, where she was stated that she was crossing the road from East to West in front of Natraj Hotel and she did not remember whether she was crossing through the pedestrian crossing. But then it is clear fro the evidence and of the medical witness that she was in stock and naturally therefore her notion must have been hazy. The fact that he marks of the brakes started fro ma point to impact was at a place some thither point in impact was at place some where between the northern set of lines. The accused, finding the that already an impact had taken please may have released the brakes and thereafter the car come of to rest. It may also be that when she refers to the Natraj Hotel and indented to refer to the only well = known pontiff the identification and not exactly the southern set of transverse lines. In fact, the broken glasses to the lamps were lying near about the northern set of lines. The evidence of the police office who has deposed to what he actually was when he went to the scene to the offense clearly shows that the theses two girls were knocked down only within the northern set of lines.
(10) In connection with the evidence of the police officer regarding what he saw when he visited the scenes of offense, Mr. Jehmalani made a grievance that he has practically tried to prove all the facts stated the panchanama to prove all the facts stated in the panchanama without examining the panties which is he says ought not to be permitted. The learned Magistrate was not prepared to rule out his evidence nor am I prepared to do so merely on this ground. The evidence shows that the tow paunches and one eye - witness who was examined by the police officer almost immediately have not been traced. There is no reason why a police office should not be also to depose to what he actually saw at these senses of offense immediately on his going there. His evidence coincides practically with the statements made by the accused himself. Having regard to the facts and having regard to further fact that there is having nothings taken out the from the cross examination of vidya in connection of with the actual site f the incident and its manner of the happening, I have no doubt that the incident occurred in the northern set of transverse lines as disposed to be her and by the independent witness Rupsingh.
(11) Mr. Jethmalani contended that even assuming that Rupsing was driving his own car as stated by him, it is wrong to suppose that he would be a position of speak about the speed at which he accused to was driving his car. It is not possible to accept the suggestion that a man who actually drives the car would not be able to the estimate the speed of the another car which is going almost parallel to the him. Though the witness has been cross examined., nothing substantial has been taken out to show that the his estimate of the speed is very for wrong. Even assuming that this estimate of the speed of the car of the accused at forty miles cannot be exact, he cannot beside to bewaring in his estimate. The learned Magistrate has estimate the speed at which the accused was driving to the be at 48 miles per hour. Mr. Jethmalani has made a grievance that the learned Magistrate was wrong in estimates the speed by adding the length of skid marks and the distance between the point where the distance between the point where the try mark ended and the one point where the car had halted from the table furnished by the Rule No. 147 framed under the Motor Vehicles Rules. To some extent there is some justification is in the grievance. That would be correct if the car had stopped with a continuous application of the brakes. But apparently that is the not so. It may be that after the impact the accused released the brake and again reapplied them in which car rolled on its won due to its momentum. Be that as it may, it the seem to me that the more must be driving at about thirty - five miles or more though probably not forty - eight miles per hour.
(12) The question w as in all such cases is whether the accused was going the at a reasonable speed and whether he was not sufficiently circumspect in the driving. In order to establish a charge of negligence under S. 304-A of the penal code it must be shown that the accident was the direct causes (result) of the negligence or rashes of the accused. English courts require of a higher standard of proof of negligence or rashness in criminal prosecution as the offense in England is the that of the manslaughter if death is causes. The same standard cannot obtain in respect of the offense under Ss. 304-A and 337 of the Penal code the though no doubt the guilt must be proved beyond reasonable doubt. [See Vishwanath vishnu v. The king AIR 1948 PC 183, and Criminal Appeal No. 315 of 1964 with Review Application No. 910 of 1964 dated 18-12-1964 ( Bom) by myself sitting with Bal J.)
(13) There is distinction of between rashness and the negligence. When one does not an act with utter indifference to be consequences of the which the doer may be conscious and which he hopes ma not taken places, one is said to the rash, while criminal negligence is neglect to take the that precaution of which a reasonable and the prudent person is expected to the taken under the circumstances obtaining to given case. In the order or negligence of the part of the accused, all relevant fact s must be considered.
(14) At one time it was suggested by Mr. Jethmalani that the pedestrian crossing was intended as a restriction for the pedestrians and nor for ammeter driver meaning thereby and that a pedestrian must cross a road only at that point and at no other point and only when there was no car in sight. However he ultimately gave it up. Mr. Chitale Supplied me the regulations framed by the commissioners of police under the Bombay Police Act, which define respective duties and the pedestrian and the driver of he car at these crossing. Mr. Jethmalani is right in saying that these rules were not even referred to I the trial court. I must also confess that I myself did not know that such rules existed. When the case was first argued before me even Mr. Citale was not aware of them. Be that as it may these regulations have been made under a statute and they have to obeyed. These are published in the 'Maharashtra Government Gazette'. Part I, dated 12th September 1963 at page 1316. Rules 4 is as follows.
' 4 Pedestrian crossing - (A) Pedestrian crossing shall be denoted by the means of transverse broken linens.
(B) Prohibitions in regard to pedestrian crossing.
(I) No driver of vehicle shall have precedence over a pedestrian who is actually onto carriage way at such crossing. The driver or rider shall (sic Stop) before reaching the crossing till such pedestrian that there is crossed the carriage way at the there is no policemen controlling effect traffic at or near such crossing or no signal is installed.
(Ii) No driver of a vehicle while approaching a road intersection where for the time - being traffic is controlled by a policeman till the pedestrian who were device, shall proceed till the pedestrian who were on the carriages way before the received to were signal to proceed, have crossed safely to the kern.
(Iii) No driver of any vehicle shall cause such vehicle or any part thereof to stop upon any crossing unless either.
(A) he is prevented from proceeding by circumstances beyond his control or
(B) it is necessary from him to stop in order to avoid accident.
(Iv) No foot passenger shall remain upon the any crossing longer than is necessary for the purposes of passing from the one side of the street to the other with reasonable depatch.
(V) No. Pedestrian shall cross any street except at the demarcated pedestrian crossings where they exist. Pedestrians shall obey all reasonable directions given by the police at these crossing.
(Vi) prohibition of walking or drive way, - No person shall walk on the driver way of a street where of foot path exist.'
(15) In law, clear duty is imposed on the drive of motor vehicle to allow the pedestrian to cross the road. Having regard clauses (v) of the Regulations, which imposes a restriction of the pedestrian, the least that the one can say is that the driver of the vehicle approaching a pedestrian crossing must keep a look - out to see if the any pedestrian is trying to the cross the road at the point. Even if one assumes that the rules may not be known to all motor drivers which they are born to the know even so an ordinarily prudent mean would approach a pedestrian crossing in such way that he should be able to stop the car when it reached it if necessary. I other words he would not continue the normally high speed when he is nearing crossing. Mr. Jethmalani referred me to London Passenger, Transport Board v. Upon [1949] AC 155, where English Regulations came to the considered. We have a difference came to the and the case could not be very irrelevant. But some of the general observations of are useful. Lord Porter at p. 162 says:
'If the driver could and ought to have seen the hurrying towards the crossing before the she reached the taxi = can and to have anticipated the she was about to or might hasten across the crossing and did not do so, undoubtedly he would be guilty of negligence at common lay.'
At p. 176 Lord du Parcq referred to the following observation of the Lord Dundein with approval in Fardon v. Harcourt = Rivington [1932] 146 LT 391.
'If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence but if the possibility o the danger emerging to only a mere possibility which would never occur tooth mind of a reasonable man than there is no negligence is not having taken extraordinary precautions' Lord Morton of Henryton said [p. 181];
It seems to the me that the principles involved in the these statements are applicable in the present case. There observations of suggest that a person who is driving a motor car owes car a duty to the members of the public to keep a look out on the road and more so when normally expect a pedestrian to cross the road. The reasoning a in this case illustrates that regard must be paid to the habits of the public.
(16) Mr. Jethmalani contended that in any event as there were two other cars to the left of the accused., his vision was obscured. But it is wrong to say that the he could not have seen the girls crossing the road. It is not have his case thatch was behind any of the cars traveling on his left because he says that he was not overtaking any of he are. Rupsing says hay were in line. Now, if that is so went width in road which the girls had to cross was about, 12.8 meters i.e., at least about forty feet if not more, it cannot be pretended that he did not notice them. If the girls had to were walking at ordinary pace of four mile per hour then I the accused were traveling even at thirty mile per hour he four would be a distance of the about eighty meter when the girls entered the crossing the from the kerb. If the had been watchful he would be have seen the girls entering the road from distances of about either meters.
(17) The day was a Saturday, it was 5.30 p.m. and the accused was nearing a pedestrian crossing. The board s notifying the same could be seen from quite a distance. The accused was therefore bound to the have his car under such control that the he could stop it necessary at the crossing. If he had been onto look out the he could, even from a distance of the about eighty meters o the crossing have seen the girls entering the road between the two lines. It was too late when he applied the brakes. It he had seen and still continued at the same speed at which he was going he, was too rash. Though Mr. Jethmalani has not referred to the evidence of Padma [D.W.1] the sister of the accused, I have read the evidence. She does not carry his case any further. On the contrary she audits that the 'girls did not run. They walked to against the mudguard'. Having regard to all the circumstances I have not regard all the circumstance I have no doubt that the accident was the result of negligence and rashness on the part of the accused.
(18) Mr. Adik who took over on the second occasion, relied upon the decision of the Leicester v. Pearson [1952] 2 QB 668, where the court was construing the provisions of the English Regulations. The circumstances under which the case arose were as follows:
'The lighting in the neighborhood of the crossing the was poor, it was raining, and the road surface was he in poor was condition. At about 5-30 p.m. a woman pushing an empty perambulator and accompanied by her child aged two started, to cross the pedestrian corsage from the trees which cast shadows on the road. One the west side, to which the pedestrian was crossing light showed onto road. On the west side to which the pedestrian was within the shops. While the pedestrian was crossing light showed through the window of shops. While the pedestrian was within driving a motor = car reasonable and proper speed on the prevailing circumstances approached the crossing fro the south. The defendants did not see the pedestrian till she was on the crown o the road although there was no physical obstruction which prevented him from seeing either the which prevented him seeing the woman or the crossing. When the defendants saw her has was seven or eight years from the crossing. He applied his brakes and the car skidded and collide with the perambulator, thereby and causing the child to the knocked over.'
Devlin J., observed that it would be quite unreasonable to suppose that an absolute prohibition or an absolute obligation of would be intended by saying to driver: 'Your shall let so - and - so go first', or 'your shall accord so - and - so precedence'. Assuming that I would be justified I importing such meaning into our regulation in even so having regard to the manner in the which the accused was driving at the time and place and on the day in question without the disabilities in that case. I must agree with the finding made by the learned Magistrate that the accident occurred astute accused was negligent and rash in the driving his car even if the impossible to sustain the intention of Mr. Jethmalani that the conviction was erroneous.
(19) The next question is about the sentence. The learned Magistrate has observations that kunda and vidya themselves contributed in the measure to the accident. In other words he find contributory negligence of the part of the two girls. I do not see how the learned Magistrate could find contributed negligence other part. He does not even refer to the evidence of vidya whose evidence of the appears to the straight forward. She denied that he on seeing the cars they ran. There is no substance of in the suggestion that the was contributory negligence other part. It is not the law and it cannot on the law that unless there was no car on the road on pedestrian is to cross the even at a pedestrian crossing since the condition of can rarely be satisfied. In view of the what I have stated above, one the reason for the imposing only a sentence of the fine, which according to the learned Magistrate, was the contributory negligence oft part of the grills disappears the sentence of the only fine is the highly inadequate even if the might otherwise appear comparatively to the heave. Mr. Jethmalani has referred to me to Emperor v. Khan Mohammed 38 Bom LR 111: AIR 1937 Bom 86 and urged that merely because death is caused, sentence of imprisonment need not be impose. Sense is a matter of discretion and the limits cannot be fixed by the discretion of he and the limit at time in the future. True, the discretion of the not ordinary interfere with the exercise thereof. Yet having regard to the what I have stated above that fact that the sentence must be such as to serve as the detained to the others, as also as he what Mr. Adik has said about him it is necessary to impose substantive sentence of the imprisonment.
(20) Having regard to all the circumstances of the case I direct that the accused do suffer simple imprisonment for a period of the six months for the offense under S. 304-A of the Penal code, in the addition of the sentences in the respect of both the offenses imposed by the learned of trial Magistrate. Warrant to issue.
(21) Sentence enhanced.