1. The appellant Bhagwandas Bakshi has been convicted by the Presidency Magistrate, Fourth Court, of an offence under Section 304A of the Indian Penal Code and sentenced to two months' rigorous imprisonment and a fine of Rs. 201, in default two months' further rigorous imprisonment.
2. Admittedly, the appellant was driving a motor-bus from the direction of the Jamsetjee Jijibhoy Hospital, and when he came to a stationary tram car, instead of proceeding straight on to his left, he drove his bus to the other side of the tram, that is to his right, with the result that the bus knocked over a boy of fourteen, who had got down from the rear entrance of the tram. The boy had his head fractured and was taken to a hospital, where he subsequently died.
3. The Magistrate has held that the death of the boy was due to a rash or negligent act of the accused, within the meaning of Section 304-A of the Indian Penal Code In coming to this conclusion the Magistrate has mainly relied upon the accused having disobeyed the proviso to Rule 19 under the Motor Vehicles Act, which prescribes the ordinary course to be followed when a motor-vehicle passes a tram car. This is, that the motor vehicle should ordinarily pass a tram ear on the left or near side, whether it be going in the same or the contrary direction. The Magistrate holds that the accused could have driven his bus on the near side of the tram and that in deviating to his right side, that is, to the left of the tram car, he took a rash step with the result that the boy was killed. He further held that the accused did not blow his horn before passing the tram car and says :-
If the accused did not want to proceed straight on the first tram track and the portion of the road which was 114 feet and on which he could easily have taken the bas the width of which admitted to be 7 feet 7 inches ha should have stopped the bus and proceeded further after the opposite tram car had passed.
4. Mr. Kemp, for the appellant, has urged that this proviso to Rule 19 only says that ordinarily the tram car should be passed on the near side, and that the circumstances of the case justified the accused deviating to his right, as he did, It is common ground that the passage along the road to the accused left was blocked for a certain length by excavations that were going on, and that there was space of only 11 feet between the edge of those excavations and the tram car. It also appears that there was not any considerable amount of traffic passing along the other side of the tram car, to which the accused took his bus. The only reference that has been made to such traffic in the evidence is about one motor car and two victorias that passed the accused bus, apparently before he actually reached the stationary tram car. In these circumstances, I am not prepared to agree with the Magistrate that the mere fact of the accused making this deviation was in itself a rash act, which would bring the case under Section 304-A. There was more room for the bus to pass on the side that the accused took, and I do not think the evidence establishes that his taking the bus there instead of continuing on the narrow space available on the proper side was, in itself, an act of rashness.
5. On the other hand, the evidence, I think, clearly establishes that there was some negligence on the part of the appellant in driving his bus in the way he did past the stationary tram car. There are, I think, three such acts. First, the Magistrate has found that the appellant did not blow his horn, when he was about to pass this tram car. That is contrary to the statement of the accused, who says that he did blow his horn, But against this is the fact that not a single witness deposes to having heard the horn blown. The witness Khatri Ahmed, who was in the motor bus, and who was, perhaps, in a better position than any of the other witnesses to see what happened and who has in some respect a given evidence in favour of the accused, says that he does not know whether the horn was blown or not. If it had really been blown, it is unlikely that this witness would not have noticed it and been able to testify to the fact. The witness Khatri Ahmed, who was sitting in the tram car at the time, deposes that he did not hear the horn being blown before the boy was knocked down. His evidence is, no doubt, open to criticism about what he says he saw, for he would presumably be seated in the tram car with his back to the place where the accident occurred; but that does not affect his sense of. hearing, and his testimony that he did not hear the horn blown goes against the accused statement. In this state of the evidence, I think we certainly must agree with the Magistrate's finding that, in fact, the accused did not blow his horn. A consideration which supports this finding is that, had the accused blown his horn, the attention oi the boy would probably have been drawn to the bus and the accident perhaps not occurred.
6. On the other hand, there is evidence that supports the accused statement that, when he first saw the boy, he tried to avoid him and swerved to the right. The witness Rajaram says that the accused shouted out some such words as 'Oh ! Oh !', and then turned his wheels and did his best to save the boy. The witness Khatri also says that he heard a shout of 'Oh ! Oh !' before he saw the boy knocked down, so that it is possible 1 hat the accused on seeing the boy shouted out so as to try and draw his attention, and swerved in order to avoid him; but unfortunately this was too late, and possibly-as sometimes happens-the boy thought that he would avoid the bus if he went on instead of stopping, so that swerving the bun only made matters worse. But this act of the accused in trying at the last moment to avoid the accident cannot, in itself, wash out his act of negligence in not sounding his horn at the time when he was about to pass the bus, so as to give any passengers that might be alighting timely notice that he was going to pass.
7. It is contended that the boy alighted from the rear of the tram car in contravention of a rule that required him to alight from the front part of the tram. But, in my opinion, the mere fact that he should not have got out from tho rear of the car cannot be held to preclude the ordinary caution that must be exercised when a motor-bus passes a stationary tram car and there is any possibility of passengers alighting from it. The accused could not properly assume that no body would alight from that particular part of the tram, especially as he was going along the side by which passengers would alight from the tram.
8. Then the second act of negligence that, I think, the evidence establishes is that the accused went too close to the tram without regulating his speed accordingly. The evidence, I think, shows that there was no traffic at the time to prevent the accused passing further off from the tram car, and of course the further off he went the less probability there would be of an accident happening owing to passengers unexpectedly alighting from the tram. The accused in his statement has mentioned that he passed a motor car coming from the opposite direction and subsequently two victorias also going in the opposite direction. Then he says he blew his horn and passed the tram. He seems clearly to mean that these passing vehicles had gone by before he actually reached the tram. That is also in accordance with the evidence of the witness Ismailji that the two victorias had passed the tram car before the accused bus came up. There was a space of thirty-three feet available between the tram track on which this tram car was and the nearside of the road to it, and therefore the accused could safely have gone further from the tram than he did. His distance from the tram car is described by two witnesses. Mahomedally says that there was about 2 1/2 feet between the bus and the tram car. This agrees substantially with the evidence of Abdulla Karim that the distance was an arm and a hall Again, the plan (Ex. B) that was drawn by the police officer who came up shortly after the accident, shows a distance of six feet between the place pointed out to him as the scene of the accident the tram lines, where the tram car had been standing. The deceased was lying nearer those lines, so that if the accused swerved, as he say a and I have held he did, then his actual distance from the tram car at the time he was passing along most of its length would be a good deal less than six feet. That is, I think, in the circumstances, an act of negligence that should have been avoided in view of the possibility of passengers alighting.
9. Then the third act of negligence that, in my opinion, is established is that, before he had actually cleared the tram car, he accelerated his speed. The accused himself states that after he had slowed down in order to make his turn to the right and come up to the tram, he increased the speed before he passed the rear portion of the tram. That also agrees with the evidence of the witness Rajaram that at the time of turning the accused lessened the speed, but it was accelerated afterwards The accused, apparently, took it for granted that nobody would alight from the rear portion of the tram; but he was not justified in doing so and should have waited until he had cleared the tram car before he increased his speed.
10. It seems to me obvious that special caution must be taken by all motor vehicles, while passing a stationary tram car. In some places regulations provide that, if a motor vehicle comes up to a stationary tram car, on the side from which passengers alight, the motor vehicle must stop, until the tram car has started. I know, for instance, that this is a rule in some parts of Germany, and I believe the same applies to several towns in Great Britain. The driver, if he does have to go close to a stationary tram car, should, at any rate, drive at such a pace as will allow him to stop his vehicle almost at once, should some passenger suddenly alight; and as the accused, in the present case, had deviated to his right to pass on the side from which passengers alighted, there were extra obligations upon him to take due care in passing the tram. I think, therefore, that in the three respects which I have mentioned there certainly was negligence established against him, and that those acts of negligence amount to culpable negligence within the scope of Section 304-A.
11. Therefore, I do not think that we would be justified in differing from the conclusion of the Presidency Magistrate, although my reasons for holding that the accused is guilty are different from those of the Magistrate. I would, therefore, dismiss the appeal and confirm the conviction and sentence.
12. I agree.