BAL, J. - (1.)This appeal is by the accused who is a B.E.S.T. bus driver. He was tried by the Presidency Magistrate, 5th Court, Dadar, Bombay for alleged offences, under sections 304-A, 338 and 279 of the Indian Penal Code and was convicted of those offences.
(2.)The facts leading to the prosecution may be briefly stated as follows :--- On 14-12-1965 at about 10.45 a.m. B.E.S.T. Bus No. BMO-37 which was being driven by the accused was proceeding from Kings Circle to Worli along Cadell Road. At the junction of Cadell Road at Prabhadevi Road it mounted the eastern footpath, dashed against a telephone pole which was uprooted, knocked down a cyclist named Poshanna Rajanna and another pedestrian Raman Shivram Mhatre. The bus also knocked down three other persons, viz. Narhari Shenoy, a medical student, and two school going children, viz. Sadashiv Sakharam and Janki. Poshanna died on the spot while Raman Mhatre died in the hospital on the same day. Narhari Shenoy received grievous injuries which disabled him for life. The injuries to the other children were not serious. P.S.I. rule, who happened to be proceeding along the same road, saw the traffic jam caused by the accident and telephoned to the Dadar Police Station about it. He later filed his first information report in pursuance of which offence were registered against the accused and investigation was stated by S.G.S.I. Phansalkar. After completing the investigation the accused was charge sheeted before the Learned Magistrate.
(3.)The accused admitted that he was driving the bus at the time of the accident, that the bus mounted the eastern footpath and knocked down the telephone pole. He also admitted Poshanna and Raman were knocked down and died while the other three persons were injured. His defence, however, was that when he approached the junction of the Cadell Road and Prabhadevi Road there were two cars ahead of him which had come to a halt ahead of him. Seeing them he applied foot brakes but they failed to operate. He then tried to apply hand brakes and stop the bus but the bus did not stop. As he saw some children crossing the road he swerved his bus to the left to stop but it dashed against the pole. According to him he was going at a speed of only 7 or 8 miles per hour and was not driving the bus either rashly or negligently. The accident was due to solely of mechanical failure.