JAIPUR BENCH RAMESHWAR Vs. STATE

JUDGEMENT

(1.) THIS is a revision by Rameshwar who has been convicted under sec. 304 (A) of the Indian Penal Code and sentenced to six months' simple imprisonment and a fine of Rs. 200/- by the learned First Assistant City Magistrate, Jaipur by judgment, dated the 7th of July, 1952. On appeal the learned Session Judge maintained the conviction but reduced the sentence to one month's simple imprisonment and maintained the fine.

(2.) THE case for the prosecution is that on the 20th of November, 1950, at about 4 p. m. , truck No. 3362 was being driven by the accused from the Ajmeri Gate side on the Mirza Ismail Road at Jaipur from east to west. One boy Virendra Kumar aged about 14 came on the road from the southern side from a lane near Chowdhri Restaurant. THE accused deflected his truck on the northern side but the boy with his cycle came under the truck and when the truck came to stop Virendra Kumar was just under the left hind wheel of the truck. THE death of Virendra Kumar was instantaneous. THE police received information and after investigation the accused was challaned under sec. 304 (A) of the Indian Penal Code. THE version of the accused was that the boy had suddenly come upon the road from the south side and he tried to avoid any collision but the boy by his own impetuous collided against the left side of the truck. On behalf of the prosecution, two eye-witnesses, Dr. Matta and Bhagwan-dass have deposed that their attention was drawn by the noise of crush after the accident and when they went to the side, they saw the boy under the hind wheel of the truck and at their instance the truck was removed a little so that the boy could be taken out. P. W. 8, Mr. K. L. Dewan, examined the truck soon after the accident and found that the hand brake was out of order and the foot brake did not work until pressed three times. In the truck there was no speedometer and steering was also not in good condition. Learned counsel contended that under Rule 154 of the Motor Vehicles Rules, 1951, the distance in feet to stop the laden vehicle on application of brakes is given 45 feet when running at 20 miles per hour and 25 feet when running 15 miles per hour and that the foot brake, has not been shown to be incapable of this performance if it could work, according to Mr. Dewan, after application of three pressures. THE accused admitted that the hand brake was defective that the speedometer was out of order but he said that the steering was not bad and the vehicle was able to take a turn and that the foot brake was in order. Learned counsel also relied on the evidence of Mr. P. N. Kaul who saw the incident from out-side Chowdhri Restaurant where he repaired motor cycles. He said that the boy came from near Chowdhri Restaurant at a speed on a cycle and the accused deflected the truck on the right side in order to avoid a collision and that a laden truck cannot usually come to a stop even on good brakes atonce. He has deposed that the marks of the wheel on the road showed that the wheels had dragged for six or seven feet. THEre is no evidence about the speed at which the truck was being taken but there is no doubt that there was contravention of Rule 167, which required every motor vehicle to be provided with a speedometer so that the driver could at every time know at what speed the vehicle was driving. I also accept the evidence of Mr. K. L. Dewan that the hand brake was out of order and the foot brake was defective inasmuch as it did not work on application of pressure on the first occasion. I also accept his evidence that the steering was in some degree defective but this last matter would not affect the case because no turn was required to be taken to avoid that incident. THE truck was standing still at the site on the side when the Investigating Officer Hanuman Singh reached the place and he prepared a plan Ex. P. 3 according to the scale 1" = 5 steps or 7-1/2 feet. THE plan shows that the road is about 33 feet wide and the place where the truck stood stationary was about 1-1/2 feet from the right hand curb stone of the road. THE boy must have travelled more than 25 feet from the edge of the entry place before he came under the truck. On the south of the road there is the foot path about 15 feet wide and the lane itself is about 25 feet wide so that if the driver kept his eyes open he could see the cyclist entering upon the road from distance. Further the fact that the cyclist covered more than 25 feet before he met with his misfortune indicates that the truck also must have covered as much distance while in motion. THE accused did not say that he tried to apply the brakes and the action of the accused in trying to deflect the truck strongly supports Mr. Dewan's evidence that the brakes were defective for otherwise there is no reason to think that the truck would not have been brought to a stand-still by the application of the brakes in order to avoid an accident. THE accused has not stated that he at any time tried to apply the brakes. THE version that the boy collided with the left hand side of the truck is not worthy of acceptance in view of the fact that the boy was under the hind wheel. According to Dr. Matta the first wheel had also passed over the body of the boy. Under sec. 112 of the Indin Motor Vehicles Act, 1952, a breach of the rules framed under the Act is punishable. Rule 154 only laid down the minimum requirements of the car but did not purport to say that a braking system whereby a car could be stopped after travelling a distance of 25 feet would be an efficient braking system. Rule 153 provided that the braking system should be efficient. THE evidence of Mr. K. L. Dewan clearly showed that the braking system of the truck was totally defective. To my mind, a foot-brake, which would require three pressures to be applied, should be held to be inefficient, for in applying brakes thrice, a few seconds would be consumed and if the car is going at even moderate speed of 15 miles per hour, it would run a few feet before coming to halt and it would be impossible to avoid collision on a thoroughfare like Mirza Ismail Road. Rule 120 laid down a duty on the drivers that they should maintain their vehicles in fit and proper conditions and shall not knowingly drive the vehicle when the brake is in defective condition likely to endanger any person or other passenger. A person is guilty under sec. 304 of Indian Penal Code if he causes the death of any person by rash or negligent act not amounting to culpable homicide. THE negligent act in the present case consisted of in driving the truck of which the hand brake was totally out of order and the foot brake was defective in a large measure. Virendra Kumar, in my opinion, was overrun because the truck could not stop in good time to avoid the accident and the reason of this mishap was the driving of the truck with defective brakes. In my opinion, the conviction is correct and the sentence errs on the side of leniency.