- (1.) THE accused-appellant, A. W. Lazarus, has been convicted by the learned Sessions Judge of hardoi under Section 304a, Penal Code, for rash and negligent driving. He has been sentenced to four months' rigorous imprisonment. The incident in connection with which the appellant was tried took place on 15-1-1950, at 8. 2 A. M. in the Railway yard of Hardoi station. Lazarus was driver of a fast goods train No. 216 down coming from Saharanpur towards Balamau.
(2.) THE facts established by the prosecution, and not disputed on behalf of the accused, are that the aforesaid down goods train was not scheduled to stop at Hardoi station but it was to run through to Balamau, that shortly before its arrival at Hardoi another train running in the same direction had arrived on platform No. 3 at 7. 30 A. m. , that it was due to leave at 7,51 but due to some trouble in one of the component wagons its departure was delayed till 7. 56, and that while the 84 down parcel train was still at Hardoi, the Kaurha Station, which precedes Hardoi on the western side, asked for line clear for 216 down goods express and the control which was contacted authorised the reception of the train and the giving of the line clear expecting that by the time she reached Hardoi 84 down would have left. The line clear was given as directed but when the goods train approached Hardoi, the station master informed the Control of the fact that the parcel train was still standing on platform No. 3 and asked for directions regarding the entry of the train driven by Lazarus and that in consequence of the instructions received by him he directed that the goods train should come on platform No. 5 and be stopped there. Hardoi station has five lines altogether. Lines NOS. 1 and 2 are meant exclusively for up trains going from lucknow towards Saharanpur. Line No, 3 runs through the station and is common both for up and down trains, while lines NOS. 4 and 5 are exclusively meant for the use of trains coming from Saharanpur side and proceeding towards Lucknow Line No. 5 normally terminates in a dead end at which there is a sand hump, but it is also connected with the other linos and can be so operated as to allow a train to pass through line No. 5 on to the main track. The normal system adopted in guiding a through train at Hardoi station was that the outer or distant signal and the home or the inner signal had to be lowered and the two starters, i. e. both the starter and the advance starter signals had also to be depressed. If it was intended, on the other hand, to stop an incoming train at the station, the starter signal and the advance starter signal had to be raised. When No. 216 down goods express reached Hardoi, the driver found that the two outer signals and the advance starter signal were down. The starter signal of platform No. 5 was up but it was obstructed from view by a banyan tree and a raised water tank and a pump house. The accused saw that one of the starter signals was depressed, but as it turned out that signal related to No. 3 and not line No. 5. In fringing in the train Lazarus slowed down at the outer signal. He ran through the home signal and when his train was guided on to line No. 5, he was running at a speed of about ten miles an hour, being under the impression on account of the lowering of the starter signal of the main line and the advance starter signal that he was to pass through in accordance with the schedule. When he proceeded further on platform No. 5, the starter on line no. 5 came into view. He then suddenly realised his mistake and tried to bring the train to a stop, but it was then too late. The train was sufficiently heavily loaded and it ran through the sand bump into some huts which lay beyond it, with the result that four persons, who were in unauthorised occupation of the huts were killed and two other persons belonging to the military personnel who were in third wagon of the train without anyone being aware of it also received fatal injuries. The Court below has found that Lazarus should have known that the eastern advance starter signal controlled three lines, that the fact that tbe starter signal of line No. 5 was not visible to him should have impelled him to exercise extreme caution and to have either stopped the train or to have brought it to a crawling pace and that in failing to observe the precaution the accused acted grossly negligently and was liable to conviction.
(3.) IT is urged on behalf of the appellant that the whole incident was occasioned by a mere error of judgment on the part of the accused, that Lazarus was not called upon to exercise, any degree of care and caution that ordinarily a prudent driver of a Railway engine should do in the above circumstances and that the fact that the driver's view of the starter signal of platform No. 5 was obstructed by the banyan tree and the other Railway constructions and the further fact that the huts which were not meant for human dwelling were occupied by unauthorised men and the two military men who according to the rules were not supposed to be in any wagon up to 10th wagon were in fact in the third wagon, were in fact the more proximate causes of the deaths.;