INTOOR JOHN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The appellant in this case has been convicted by the Second Presidency Magistrate for an offence under Section 304A and sentenced to nine months' rigorous imprisonment.

(2.) The appellant is a cart driver employed by the Madras Corporation for driving double bullock rubbish cart. On 21-1-1950 at about 10-30 A.M. the appellant and D. W. 1 another bullock cart driver of the Corporation were driving the carts along the Kathiavakkam High Road. They were driving at a terrific speed racing with one another one trying to overtake the other. The evidence of P. Ws. 1 and 3 who are eye-witnesses shows that the two drivers were not only driving bullock carts at terrific speed and racing with one another but the appellant let loose the reins of the bulls and was whipping the animals with a view to overtake the other bullock cart. Suddenly a cry was heard 'child, child' and then when the bullock cart was made to stop, they found a child under one of the wheels of the accused's cart. It was taken out and it died within a few minutes thereafter. The appellant himself made a statement to the police which is Ex. P-2 in the case. In it, without admitting his reckless and rash driving, he speaks to other facts in the case as to how the child came and hit itself on the right side of: the wheel and that the right wheel of the cart ran upon the child from the hip to the breast, P. W. 2 the doctor who conducted the post mortem examination found the following injuries :

(3.) It is contended by learned counsel for the appellant that the medical evidence shows that the wheel could not have run over the body of the child as the basal fracture was due to the fall of the child and not directly due to the hitting and the appellant cannot be convicted under Section 304A, It is further contended that the witnesses would not have seen the accident but were drawing on their imagination. Taking the second point first the witnesses are disinterested and nothing was suggested in their cross-examination as to why they should depose differently from what they have seen. Their evidence is consistent and I agree with the appreciation of their evidence by the learned Magistrate. In my opinion, their evidence sufficiently establishes this fact namely, that the two drivers were racing with one another at terrific speed and that the appellant had let loose the reins of the bulls and was whipping the animals with a view to overtake the other. This shows that he was not only rash but was also negligent. The degree of negligence that is required in such cases has been laid down by Lord Atkin in --'Andrews v. Director of Public Prosecutions', (1937) A. C. 576 (A). After approving the principle laid down in -' Rex v. Bateman', (1925) 19 Cr. App. Rep. 8 (B), Lord Atkin says at page 583 :