IN RE: KOTHANDAM Vs. STATE

JUDGEMENT

(1.) THIS is an appeal against the Judgment of the learned Chief Presidency Magistrate, Madras, convicting the appellant of the offences under Section 304 -A of the Indian Penal Code, and Sections 116 and 121 of the Motor Vehicles Act, and sentencing him to undergo rigorous imprisonment for 9 months under the first count and two months on the third count, the sentences to run concurrently, without awarding any separate sentence in respect of the second count. The appellant is the driver of the lorry MDY 4244. At about 5 -55 P.M., on nth August, 1969, he was driving the lorry in a northerly direction along Mount Road. P.W. 4 the Traffic Constable who was standing at the pedestrian crossing at Thousand Lights, gave the stop signal for the vehicles coming from the north as well as from the south. It appears that there used to be two constables on duty at that crossing. But one of them had not turned up that day with the result that P.W. 4 had to regulate the entire traffic coming from the south as well as from the north. He gave No. 3 signal by lifting up the right hand and giving stop signal and by extending the left hand parallel to the shoulder to indicate that the pedestrians could cross Mount Road at that stage. We do not know what was the distance between the lorry driven by the appellant and the Traffic Constable when he gave the No. 3 signal. According to the driver (the appellant), the signal of the Constable Was given suddenly.; As soon as the signal was given, the ; vehicles coming both from the north and t from the south came to a stop and the pedestrians and cyclists started crossing the road along the pedestrian crossing. But unfortunately, the appellant, who was driving MDY 4244 and who applied the foot -brake found that the foot -brake did not act. The Traffic Constable himself appears to have felt that the vehicle had gone out of control. He therefore raised a warning cry to the pedestrians and himself moved eastwards from his point of duty. At that stage, the lorry ran past the constable and knocked down, Jayaraman, who Was walking in a westerly direction along the pedestrian crossing pushing his cycle. The lorry ran over Jayaraman and stopped about 50 feet beyond him. Jayaraman died on the spot. The accused, who pleaded not guilty, said when he was questioned by the Court:

(2.) P .W. 3. the Motor Vehicles Inspector, who examined the lorry at 12 -40 P.M., on 12th August, 1969, the very next day, said:

(3.) LEARNED Counsel for the appellant attacks the above finding on the ground that it is based entirely upon conjecture and upon a disregard of the burden of proof which rests in such cases upon the prosecution. As has been held in Matarajan alias Natesan, In re., (1966) 1 M.L.J. 328 :, (1966) M.L.J. (Cri.) 279 :, A.I.R. 1966 Mad. 357.