- (1.) PETITIONER Amirkhan is a driver of truck No. RJQ 2094. He has been convicted of an offence under sec. 304-A of the Indian Penal Code and sentenced to nine months rigorous imprisonment by the First Class Magistrate No. 3, Jodhpur. His appeal has also been rejected by the learned Sessions Judge, Jodhpur. Now he has come in revision before this Court.
(2.) ON 27th April, 1958, at about 11 A. M. while he was driving the truck and proceeding on the road which goes from Sewanchi Gate to Masooria side in Jodhpur City, a herd of cows came from the opposite direction. Madia P. W. 3 was ahead of the cows while Pukhia a boy of 10 years was following them. The prosecution case was that the accused did not stop the truck on seeing the herd of cows and turned towards the right side of the road and knocked down Pukhia who received severe injuries and succumbed to it after a short while. It was therefore, alleged that the boy was killed on account of the rash and negligent driving of the truck by the) accused. The plea of the accused was that he was not guilty of any rash and negligent act and it was only by an accident that the boy who was following the cows wanted to cross the road was knocked down by the truck. In this revision learned counsel for the petitioner has urged that the death of the boy cannot be attributed to any rash and negligent act of the petitioner. That the truck was mechanically in a fit condition and the speed at which it was being driven at that time has also not been proved to be excessive. It is further urged that the prosecution has not proved the circumstances under which the boy was killed. Samuel one of the eye witnesses has not supported the prosecution version. Madia P. W. 3 another eye witness on account of his defective vision could not see the accident as he was ahead of the cows and the accident took place behind his back. It is therefore, urged that simply because the boy has been killed it cannot be inferred that it is due to any rash or negligent act on the part of the petitioner. In this connection he has relied upon Ghisa vs. The State (1) and Putin Behari Nandi vs. Emperor (2 ). It is true that Samuel one of the eye witnesses turned hostile and is not helpful to the prosecution but so far as the other eye witness Madia P. W. 3 is concerned, his evidence has been believed by the courts below. He was undoubtedly present at the spot and there is no reason why his testimony should be rejected. It does not appear that there was such a defect in his vision that he could not see in the broad day light the accident which took place at a place which was quite close to him. He has stated that there was some defect in one of his eyes but he could see very well with the other eye. According to the evidence of this witness the petitioner did not stop the truck even though the road was not clear and there were cows in front of him. Some of the cows according to him had turned towards the left but the petitioner continued driving his truck and turned on the wrong side of the road i. e. , towards the right and knocked down the boy who was standing at a distance of half a yard from the road. The boy was run over by the front wheel of the truck and was found lying in between the front and the hind wheels. The Sub Inspector who inspected the site has also noted that the accident took place at about 3' from the edge of the road. He has noted that the road along which the petitioner was driving was 30' wide. In his examination before the Magistrate the petitioner himself admitted that on seeing the herd of cows he wanted to stop the truck but he could not do so. Although there is no sufficient evidence to show that he was driving at a fast speed but the fact that he could not stop the truck indicates that the speed was such that he could not pull up at the crucial moment. The question therefore, is whether in these circumstances it can be said that the accident took place on account of the rash and negligent act of the petitioner. In the first case relied upon by the learned counsel the facts were that the driver was on the correct side of the road and the speed of the vehicle was not excessive. The girl who was playing on the right side of the road was killed while she was crossing the road and was going from right side to the left side. No circumstances as to how the accident happened were placed before the Court. In these circumstances it was held in that case that the driver was not guilty of any rash or negligent act. The facts of that case are quite distinguishable from the facts of the case in hand. In this case the boy was already on the right side of the road and the accused was driving on the wrong side of the road which caused the death of the boy. In the second case while the accused was driving the motor lorry at a moderate speed, a little boy who was crossing the road came in contact with the lorry and got his left foot fractured. No rash or negligent act was shown in that case against the accused. In these circumstances it was held that the accused could nor be convicted of an offence under sec. 338 of the Indian Penal Code. The facts of that case are also distinguishable from the facts of the present case. The main question is whether the accused could have avoided the accident if he had taken reasonable and proper care which the circumstances demanded. Where there is a herd of cows on the road coming from the opposite direction and the road is not clear and no one knows to which side the cows may turn because they are not aware of the rule of the road it is very dangerous for the accused to have continued driving the truck and that too on the wrong side of the road to the extent that he even left the road. The cowherd who was on the right side a little away from the road little knew that the truck would turn towards that side which was the wrong side. In the circumstances in which he was placed the accused should have stopped the truck and should not have proceeded further until the road was clear, At any rate he was driving on the wrong side of the road without any justification. Had he taken necessary precautions the accident would not have taken place. In these circumstances it would be correct to hold that the boy was killed on account of the rash and negligent driving of the truck by the accused. The accused has been rightly convicted by the courts below and there is no force in this revision which is hereby dismissed. The accused is on bail. He shall surrender to it to suffer the remaining portion of the sentence. .;