TUKARAM SITARAM GORE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal by the accused who has been convicted by the learned Presidency Magistrate, 29th Court, Dadar, of the offence under Section 304-A of the Indian Penal Code and sentenced to one year's rigorous imprisonment. The facts of the prosecution case are that there is a road somewhere near Wadala, known as Rafi Ahmed Kidwai Road which is in four lanes, each of which is separated from the other by a slightly raised reservation track for pedestrians. It has been conceded before me by the learned Assistant Government Pleader, Mr. Gambhirwala, after taking instructions from an officer of the Traffic Control Department in Court, that of these four lanes, the two eastern lanes are one way, namely, for traffic proceeding from North to South; and the two western lanes are for traffic proceeding the other way, namely, from South to North. It has also been conceded by Mr. Gambhirwala after taking instructions as aforesaid, that the outer lanes on either sides, that is, the lanes running along foot-paths on each side, are intended for heavy traffic, namely, for buses and trucks, whereas the other lanes are for private cars and taxis. It has also been conceded before me by Mr. Gambhirwala that by virtue of Notification No. 11698/traffic dated 29th June 1962 issued by the Commissioner of Police, Greater Bombay, in exercise of the powers conferred upon him by Rule 268 (2) of the Bombay Motor Vehicles Rules, 1959, published in the M. G. G. Part I, Bombay Division, dated 30-8-1962, page 1456, there was, and still is, at the place where the incident occurred an absolute prohibition, inter alia, against the blowing of horn by drivers of motor vehicles. I am stating these facts at the outset because they do not appear on the record, but Mr. Gambhirwala has, very fairly, assisted the Court by taking necessary instructions and making the statements just recorded by me, so as to avoid the case having to be sent back for the purpose of formal evidence being taken to prove these facts.

(2.) AT about 11-30 a. m. , on the 13th of March 1968, a beggar-boy aged about 8, was crossing Rafi Ahmed Kidwai Road from West to East. He had already gone across 3 of the 4 lanes of the road and had come upto the reservation track between the 3rd and 4th lanes, the 4th lane being the one adjoining the eastern foot-path. At that time, the motor lorry driven by the accused came along the 4th lane proceeding in a north to south direction and knocked down the boy just as he began to cross that lane and had walked about 3 paces from the reservation track. The facts stated by me till now are in the nature of admitted facts. Though in the written statement filed by the accused in the trial Court, he has tried to make out that the deceased boy might have dashed against the rear wheel of his lorry, that could not be a correct statement, having regard to the evidence in the case. In my opinion, however, even accepting in toto the evidence of the two eye-witnesses Kasturi Satayya Lingayya and Yasminkhan Yasinkhan, the former of whom has lodged the First Information Report in this case, the prosecution has failed to prove that the death of the unfortunate boy was due to any rashness or negligence on the part of the accused. Three facts are relied upon by the State for that purpose as having been proved by the evidence of the two eye-witnesses as well as the panchnama (exhibit "b") and the evidence of Sub-Inspector Garud, and they are these: (1) the two eye-witnesses Kasturi Satayya Lingayya as well as Yasminkhan Yasinkhan have stated that the lorry was being driven by the accused at the time of the incident "in a fast speed. " (2) those two witnesses state that the accused did not blow the horn; and

(3.) THE motor lorry did not stop immediately, but stopped about 100 or 150 feet away from the spot where the boy was knocked down. These facts are relied upon by Mr. Gambhirwala as showing that the accused was driving the motor lorry in a rash and negligent manner. I must, therefore, proceed to deal with each of these facts relied upon by Mr. Gambhirwala on behalf of the prosecution. 3. As far as the first point is concerned, the Supreme Court has, in its unreported decision, D/-21-3-1968 in (1968) Criminal Appeal No. 154 of 1965 (SC), held that the use of the expression "high speed" (that being the expression used by a witness in the case before the Supreme Court) was not enough to prove rashness or negligence, unless evidence was elucidated from the witness who used that expression as to what his notion of speed was. As far as witness Kasturi Satayya is concerned, no evidence whatsoever has been elicited from him to show what his notion of "fast speed" was. As far as witness Yasminkhan is concerned, an attempt has been made to elicit from him, in the course of cross-examination, as to what his notion of "fast speed" was, and he stated that the lorry was, in his opinion, proceeding at a speed of 35 miles per hour when the boy was knocked down. The speed of 35 miles per hour is, no doubt, slightly in excess of the speed-limit in the city (except along Marine Drive), but it can by no means be said to be a speed which is so excessive as to amount, per se, to rashness or negligence. The evidence that the accused was driving the motor lorry at fast speed at the time of the incident is, therefore, of no avail to the prosecution in the present case,