W K WESLEY Vs. EMPEROR

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Allahabad recommending that the conviction of Mr. W.K. Wesley, an Indian Christian Professor in the Agricultural Institute of Allahabad, who has been convicted under Secs.279 and 337, Indian Penal Code, and under Section 16, Motor Vehicles Act, and who has been fined Rs. 75, Rs. 35, and Rs. 15, should be set aside. The case was tried by Mr. A.D. Pandit, I.C.S., City Magistrate of Allahabad and was tried summarily, but certain statements of the witnesses have been recorded. The points taken by the learned Sessions Judge are that the evidence does not establish that the accused was driving his motor car rashly or negligently or that he failed to comply with the rules under Section 16, Motor Vehicles Act. The small map will illustrate the scene of the accident:

(2.) The car of the accused was driving from north to south down Stanley Road and an ekka was approaching the crossing of Elgin Road with Stanley Road coming from west to east. These two vehicles came to a collision at the cross roads with the result that P.W. 3 Mahabir, sweeper, fell off the ekka and received two simple injuries. The Magistrate has not stated in his judgment or in his record of evidence whether the ekka was knocked over or not. Now a number of witnesses were produced for the prosecution. The only witness who gives any evidence that the motor car driven by the accused was going at a fast rate is P.W. 2, Mr. Lalta Prasad, Advocate. The time was night, 9-15 P.M. and he states that he was riding a bicycle in the same direction as the car down Stanley Road and a car passed him at the club gate going at a rate which he estimates as 35 to 40 miles per hour. Now the other witness to the occurrence, Mahabir, who was on the ekka does not allege that the car was going fast. A witness Chironji Lal had his back to the accident and was cycling along the same Stanley Road about 80 yards from the scene of the accident when he heard the noise and turned round, but of course as the car had then stopped he does not say anything about its rate of speed. For the defence, Mr. H.P. Singh, an Inspector of Agriculture in Partabgarh, gave evidence that an ekka suddenly passed across the crossing and the horn was blown by the accused twice and accused tried to swerve to the left to avoid the ekka, and he says that the accused is a cool driver. Owing to the obstruction of hedges in the compounds of the houses close by, the ekka was not visible until the car came to within a yard or two of the crossing. This fact has been accepted by the Magistrate as he says: It is true that the crossing of Elgin and Stanley Roads requires more caution than an average crossing as one cannot see round the corner on account of the hedges of the bungalows.

(3.) The Magistrate refers to P.W. Chironji Lal as giving evidence of high speed of the accused, but this witness makes no statement whatever on this point. The only witness who does make any statement is Mr. Lalta Prasad. Now this witness is not disinterested because the man who was knocked down, Mahabir, is his sweeper. The evidence of Mr. Lalta was that when the car passed him at club gate it was going at 35 or 40 miles an hour. Now it is notoriously difficult to estimate the speed of a car when the only source of observation is the car as it passes in the dark. This witness has an opportunity of giving some evidence which would indicate the speed of the car. He could have stated how long after the car passed him he heard the crash, but he made no statement on that point and the Magistrate did not inquire into that point. The distance from the club gate to the scene of the accident is considerable and the learned Sessions Judge states that it is more than a furlong. I consider this is an under estimate as there are two blocks between the club gate and the scene of accidents. The first block lies between Club Road and Edmonstone Road and the second block lies, between Edmonstone Road and Elgin Road. Another method of ascertaining the speed of the oar does not seem to have occurred to the Magistrate, that is what was the distance in which the car pulled up from the time the brakes were applied. Now it is clear from the nature of the locality and the evidence that the car driver did not see the ekka and the brakes were not applied until the car was a yard or two away from the ekka. If the car had been proceeding at 35 or 40 miles per hour and had collided with the ekka, the brakes being applied only a yard or two away from the scene of the accident, the oar would have broken the ekka to pieces and knocked the ekka and the horse down, which is not stated, and further the car would have proceeded for a distance of 20 or 30 yards before coming, to a stop, that is the ear would have come to a stop on the further side of the crossing. No evidence of this sort is given and the evidence gives the impression that the ekka was not knocked down or injured in any way and that the only result of the collision was that Mahabir fell off the ekka on to the ground and that the car did not even cross the crossing of the two roads. Obviously therefore the speed of the car could not have been anything beyond a very moderate one. This is a matter which anyone can try for himself, if he desires to see in what distance he can draw up a car from a sudden signal. I consider therefore that the learned Sessions Judge is right in saying that the evidence does not prove that the car was being driven at any excessive speed.