BHANDARI, J. - (1.) THIS is a revision application on behalf of Narsinghlal against the judgment of the Sessions Judge, Jaipur City, dated the 28th of February, 1961, by which he maintained the conviction of the petitioner under sec. 304-A I. P. C. and the sentence of four months' rigorous imprisonment awarded by the Magistrate, First Class, No. 2 Jaipur City.
(2.) THE prosecution case is that Narsinghlal petitioner was driving Truck No. RJL.-1487 and was passing through Kalyanji-ka-rasta in Jaipur City from the New Colony side, on the 6th of March, 1959, at about 11. 00 A. M. Sulochna, a girl of about 5 years, daughter of Ghisa Lal, was also going in that street in the same direction as the truck. THE front bumper of the truck struck Sulochna. She fell down and the truck passed over her right leg. THE truck stopped and the girl was taken out from beneath the front wheel and was taken to the hospital where she died after about 24 hours. THE allegation of the prosecution is that the petitioner failed to blow the horn and was driving the truck at an excessive speed in a crowded lane of Jaipur City. When the truck was examined by Mr. Daruwala Mechanical Transport Officer, Police Lines, Jaipur City, it was also found that the service brakes of the truck were very weak and it could not have been brought to a stop abruptly and the parking brakes did not operate at all. THE learned magistrate came to the conclusion on the evidence on record that the truck was driven at a speed of about 20 to 25 miles an hour which was excessive in view of the crowded locality where the truck was being driven. He also found that the service brakes were very weak and parking brakes could not operate at all. In view of these circumstances, he held that the petitioner was guilty under Sec. 304-A IPC. as he caused the death of Sulochna by doing a negligent act not amounting to culpable homicide. He was convicted under Sec. 304-A IPC. and sentenced to four months' rigorous imprisonment. On appeal by the accused, the learned Sessions Judge came to the conclusion that there was no definite evidence with regard to the speed at which the truck was being driven but it was proved that the service brakes were very weak and the parking brakes did not operate at all. THE learned Sessions Judge took the view that driving a truck in a crowded and narrow lane like Kalyanji-ka-rasta in a condition in which the service brakes were weak and the parking brakes did not operate at all was dangerous and it was rash and negligent act of the accused to have driven such a truck which could not be controlled in emergency. He, therefore, dismissed the appeal. It this revision application, it has been urged that the petitioner has been convicted solely on the ground of inefficiency in the strength of brakes under sec. 304-A IPC. but it has not been brought out that this inefficiency was directly responsible for the collision, and, as such, the petitioner cannot be held guilty under sec. 304-A I. P. C. , though he might have been convicted under the provisions of the Motor Vehicles Act and the rules made thereunder. Reliance is placed on the authority of the Oudh Chief Court in Emperor Vs. Akbar Ali (1 ). The facts of that case are that a bullock cart was going ahead of the lorry which the accused in that case was driving and two women Maharania and Maharajia were also going ahead. The driver tried to pass the cart to the right and swerved for that purpose. While Maharajia crossed the road and went over to the left, Maharania turned to the right and was run over and killed. The accused was convicted on the ground that the brakes of the lorry were not in perfect working order and that the lorry carried no horn. Their Lordships held that the rash or negligent act referred to in sec. 304-A IPC. meant the act which was the immediate cause of death and not any act or omission which could at best be said to be a remote cause of death. In this connection, their Lordships took support from Emperor Vs. Omkar Ram Pratap (2) and Emperor Vs. Sat Narain Pandey (3), and set aside the conviction of the accused. Learned Deputy Government Advocate has argued that this case is distinguishable inasmuch as the deceased Maharania turned to the right which could no: have been anticipated by the driver and she was run over and killed and this circumstance made it a case of pure accident. He has urged that a Single Judge of this Court in Rameshwar Vs. State (4), had maintained the conviction under sec. 304-A IPC. of a driver who was driving a truck in which the hand brake was totally out of order and the foot brake was defective in a large measure and Virendra Kumar, who died as a result of the collision in that case, was over-run because the truck could not stop in good time to avoid the accident. He has also relied on the decision of the Madras High Court in In Re, Parthasarathy (5), in which it was observed that: - "it will constitute culpable negligence if a driver drives a vehicle with patently defective brakes or fails to apply the brakes in time. " Now in the case before me the evidence on record establishes that the girl was going ahead of the truck practically in the same direction as the truck was going and she was struck from behind by the bumper of the truck. This collision could have been avoided by the driver of the truck had he stopped the truck before the girl was knocked down. He could have foreseen that a girl of tender age was going in front of the truck and it was his duty either to stop the truck or to swerve it so as to avoid the collision. The law on the point has been summed up in the Law of Collisions on Land by Andrew Dewar Gibb, Fifth (1947) Edition - P. 04.- The position of the pedestrian is worthy of some general comment. The great distinction between pedestrian and driver is that the latter usually runs into the former and not vice versa, Let A and B be two persons making for spot x on the road. He who is first at spot x has prima facie the right to occupy it without being knocked down on it by the other. Suppose both are pedestrians and A reaches x first, B even if he is running does not usually signal to him to clear off x under pain of being run down. This, however, is what B, the motorist, does many times a day. It cannot be too clearly stated that B has no right to do Anything of the kind, and if in such circumstances A fails to jump from spot x in time to avoid collision, B is the person who is liable in law. Unluckily the consequences of collision are apt to be so much more painful to A than to B that he usually does jump, and a long course of jumping by the pedestrian population has reinforced the motorist's belief in his right to chase pedestrians off spot x. That belief is also sometimes accepted by a jury. If a pedestrian, so runs the argument, places himself at x, where a car is about to pass, it is his duty to leave as quickly as he can, so that the car may pass; he knows that if he stays too long the car may hit him and, as a reasonable man, he ought to jump. This is nonsense, but unfortunately it sometimes passes. If it were otherwise than nonsense it would mean that it is part of a pedestrian's duty to allow for the arrogant pretensions of certain other road-users. " A motor vehicle is under law to be equipped with certain apparatuses by which the driver of that vehicle may give a warning to a pedestrian of its approach and in case the pedestrian does not move frond the spot where he is, the driver can bring the vehicle to a stop in time to avoid a collision with the pedestrian. It is made incumbent by the rules made under the Motor Vehicles Act that the motor vehicle must keep a horn so that a warning may be given from time to time to the pedestrian to clear the road. Usually the road sense of pedestrians has developed to extent that on hearing the horn, they move to a side to let the vehicle pass but this does not mean that the pedestrian lacking that road sense or a pedestrian of tender age not appreciating the significance of the blowing of the horn may be knocked down in case he does not remove himself off the road in time. It is the duty of the driver to foresee that he is to stop the vehicle in time to avert the collision in case the pedestrian does not jump off the road so as to give him a clear road. The case may be different when in this jumping there is wavering in the mind of the pedestrian when he jumps off first on one side just giving an indication to the driver that there is a clear road and all of a sudden he makes up his mind to jump off on the other side. In that case, there might not be negligence on the part of the driver in driving the vehicle in the manner in which he had foreseen. The case of the the Oudh Chief Court in Emperor Vs. Akbar Ali (1) appears to be of that type. In the first Article in the Law of Collisions on Land by Gibb, 5th Edition, 1947, Page 96, the learned author has dealt with cases of faulty condition of vehicle and it has been stated that - "it is the duty of a person who is responsible for the presence of a vehicle on the road to take reasonable care to have the vehicle in a fit condition. He is liable for a collision caused by a failure in this duty. " Brakes in a motor vehicle are fitted for the purpose of controlling it and they must always be kept in an efficient order in order to see that they operate in a satisfactory manner in the time of emergency. If the brakes are not in order, it means that the driver is letting loose a monster in a crowded place which the driver of the vehicle is not in a position to control. In the case before me, girl was hit from behind and this could have been averted had the driver been in a position to stop the truck just in time to avert the collision. Unfortunately he could not do so and though he does not say that it was on account of the defective brakes but from the circumstance that the truck stopped soon after the accident it may be taken that he had applied the brakes but as they were not of a sufficient requisite strength, he has not been able to control the vehicle to avoid the collision and the girl was knocked down by the front bumper. It is not very definite that there was the blowing of the horn, but even if horn was blown, it would not make any difference in his liability. No doubt under criminal law mere negligence on the part of the driver may not be sufficient for his conviction and it must be established by the prosecution that there was culpable negligence but in the case before me I have to take it from the circumstances established that there was such negligence as the petitioner was driving in a part of the city in the daytime when the locality was crowded. The width of the street was about 40 ft. There were houses of residence on both sides of it. The accused could have anticipated that it was highly dangerous to drive his truck in such a densely populated locality under these circumstances without having proper brakes. This culpable negligence on his part, under these circumstances, must be taken to be reponsible for the incident. It is also in his statement that he had been driving this truck before the incident over a long distance, from Bichun to Jaipur City, which was more than 20 miles from Jaipur City. He must be presumed to have knowledge that his brakes were defective. I am, therefore, of opinion that the accused petitioner has been rightly convicted under sec. 304-A IPC. The sentence passed is not severe. The revision application is, therefore, dismissed. .;