DHANJI VALLABHDAS Vs. STATE

JUDGEMENT

(1.) THIS is a revision application to revise an order of the Sessions Judge, Central Saurashtra Division, dismissing an appeal of the applicant from his conviction of offences under Sections 304A and 338, Indian Penal Code by the First Class Magistrate, Rajkot. An application by the prosecution was made before the Sessions Judge for enhancement of the sentence. The learned Sessions Judge did not think it fit to make a reference to the High Court for enhancement of the sentence; but when the present revision application was admitted, this High Court issued a notice to the applicant to show cause why the sentence should not be enhanced. So that in the present case we have to consider the question of the conviction of the applicant as also the question of the sentence imposed by the Magistrate, in case the conviction is upheld.

(2.) THE facts leading to this application are shortly that the accused -applicant was driving a motor car bearing No. 506 and he was proceeding from Sir Lakhajiraj Memorial Hall towards Dharampur Uttara at Rajkot at about 4.30 p.m. on 21st July 1949, when the car struck one hotel boy named Kishan and knocked him down. Thereafter, the car knocked down one girl named Manjula and her father Jamnadas; as a result of the injury, the girl died soon after, and before she could be taken to the hospital. Jamnadas had to remain in the hospital for 14 days for medical treatment, while the boy Kishan had a fracture of bone. So that the driving of the car by the applicant resulted in death and grievous hurt. The learned Magistrate, who tried the case, sentenced the applicant for the offence under Section 304A, Indian Penal Code to four months' simple imprisonment and to pay a fine of Rs. 500/ - and for the offence under Section 338 to four months' simple imprisonment. The applicant was also prosecuted for an offence under Section 112 of the Motor Vehicles Act; he was convicted and sentenced to pay a fine of Rs. 20/ -. Against his conviction for offences under Section 304A and Section 338, Indian P.C. alone the applicant filed the appeal to the Sessions Court. Both the lower Courts have come to the concurrent finding that the applicant was guilty of a rash and negligent act resulting in death and grievous hurt and they have taken into consideration the following circumstances which have been held proved by evidence: 1. The applicant was a novice and did not hold a motor -driving licence. This fact is admitted on behalf of the applicant. It is also admitted that the applicant, at no time,, held a motor -driving licence. It seems that he had applied for a licence, but the question of its grant was still pending when the present accident occurred. 2. The applicant was driving the car which belonged to one Jugatram Raval and the car was defective inasmuch as, (a) it had neither an electric hooter nor any bulb horn, so none was sounded, (b) the accelerator was not working properly, (c) the foot brake was ineffective, and (d) the hand brake was totally out of order.

(3.) THE learned Advocate for the applicant has contended that the mere facts that the applicant held no driving licence and that the car was not in a proper working order are not sufficient to warrant the inference of a rash or negligent act. He contends that it has not been established by evidence that he was driving at a fast speed or in a negligent or rash manner to bring the applicant within the offences under Sections 304A and 338, I.P. Code. He strongly relied upon a ruling of the Oudh Court in the case of - Emperor v. Akbar Ali AIR 1936 Oudh 400, wherein it was held: The rash and negligent act referred to in Section 304A means the act which is the immediate cause of death and not any act or omission which can at best be said to be a remote cause of death. Whore there was no rashness and negligence on the part of a lorry driver charged under Section 304A for having run over and killed a woman, so far as his use of the road and the manner of driving was concerned, the fact that the accused's lorry had no horn or inefficient brakes cannot be taken into consideration in convicting the accused under Section 304A, though they can be made the s, subject of a prosecution under the Motor ' Vehicles Act, when it is clear that the absence of the horn or the inefficiency of the brakes was not in any way responsible for the accident. This case is distinguishable from the present case, as it was definitely held there that the absence of the horn or the inefficiency of the brakes was not in any way responsible for the accident. In the present case the accused was driving in a very crowded locality, where inefficient brakes and want of a horn would contribute to an accident and more so if the driver is a novice.