John Beaumont, Kt., C.J.
1. This is a reference by the District Magistrate, Bombay Suburban District, inviting us to enhance the sentence passed upon the accused, who is convicted under Section 304A of the Indian Penal Code. The accused was sentenced to a fine of Rs. 150, in default, three months' rigorous imprisonment.
2. The facts are that the accused was driving a motor lorry on October 22, 1935, along the Ghodbunder Road from Andheri to Malad. At the same time, a private motor car was coming from Malad towards Andheri on the proper side of the road. There was a bullock cart going in the same direction as the accused's lorry, and with a view to passing the bullock cart the accused swerved on to the right-hand side of the road. His own case is, that owing to another lorry in front of him, which had just passed the bullock cart, he was not able to see whether the road was clear, and he did not see the approaching car. If he was not able to see that the road was clear, he had, of course, no right to go over to the right-hand side of the road in order to pass the bullock cart. He should have waited behind the bullock cart until he could see that the road was clear. The evidence rather suggests that as a matter of fact he could see the private car approaching, because the driver of that car says that he did see the accused's lorry quite plainly. If the accused could see the approaching car, presumably he committed an error of judgment in calculating the speed at which the car was approaching. He thought that he could get past the bullock cart before the other car got in his way, but in fact, he could not. At any rate, he found that he was in great danger of running into this private car, and in order to avoid crashing into the private car and probably killing the occupants, he swerved sharply to the right and went over some waste ground. In so doing, he hit the approaching car, and occasioned a certain amount of damage, but did not hurt the occupants; and all would have been well with the accused but for the fact that he had in the back of the lorry a man who was sitting on a cask, and when the motor lorry went over this rough ground, it occasioned a bump, which threw the man sitting on the cask on to the road, and unfortunately he was killed.
3. Counsel for the accused has challenged his conviction, as he is entitled to do on a reference to enhance the sentence. But I think his conviction was justified. I think the accused was undoubtedly guilty of a rash and negligent act in going over to the right-hand side of the road, either without seeing that the road was clear or when he had not got time to get back to the proper side of the road before the private car, which was approaching, got into his way. No doubt the ultimate cause of the death of this unfortunate man who fell out of the motor lorry was occasioned by the rash and negligent act of the accused; and I think it would be very dangerous to attempt to distinguish in cases under Section 304A between the approximate and ultimate cause of death due to a rash and negligent act. There is no doubt that in the present case the accused was properly convicted, and the only question is whether the sentence passed on him should be enhanced.
4. Now, assuming that the accused was wrong in going to the right-hand side of the road in the first instance, there is, I think, no doubt that he took a very wise course in swerving on to the waste ground. He thereby avoided a very serious collision with the private car. If the man inside the motor lorry was sitting on a cask in such a position that a bump occasioned to the lorry would threw him on to the road, I think he was acting very foolishly. A motor lorry is always liable to go over a piece of bad road, particularly in this Presidency; and anybody sitting inside a lorry should take care that he is sufficiently secured not to be thrown out merely by a bump. This may have been a bad bump, but I do not think that the accused could possibly have imagined that the man inside the lorry would not be able to hold on and prevent himself from falling out.
5. The learned Magistrate takes the view that a deterrent sentence was called for,-on three grounds. He says, first of all, that a human life was lost. We held the other day that the mere fact that a human life is lost does not justify us in passing a deterrent sentence, if the lost life could not have been reasonably anticipated by the accused. (Emperor v. Marshall, Criminal months' Reference No. 57 of 1936, decided by Beaumont C. J. arid Wassoodew J., on July 29, 1936.
Beaumont C. J. This is a reference by the District Magistrate, Bombay Suburban District, asking us to enhance the sentence of four rigorous imprisonment passed upon the accused for an offence under Section 304A of the Indian Penal Code, that is, for causing death by a rash and negligent act.
Having gone through the record, I think there is no doubt as to what happened. The accused was driving a car from a wedding party. He had four passengers at the back and two in the front, which was two more than the car was properly capable of holding. He started from the party some distance behind another car which was driven by a man named Nasservanji, and on the Ghodbunder Road the accused desired to pass Nasservanji's car. The evidence is that the road is a straight road thirty-four feet wide, and therefore there should have been no difficulty whatever in passing another car even at considerable speed. It is not suggested that there was any obstruction on the road at the time. However, according to the evidence, both the cars got into something in the nature of a race. What happened, I apprehend, was that, as soon as the accused began to pass Nasservanji, Nasservanji not wanting to be passed by another car of the same party, accelerated the speed of his car, and probably the accused had to go faster than he intended, in order to get past the other car. Having got past the other car,- and the evidence of the only independent witness is that the car was going at a speed of forty or fifty miles an hour,-the accused swerved to the left in order to get back to the proper side of the road, and in so doing, he lost control of his car which ran off the road, collided with a tamarind tree, and was thrown into a field, with the result that three of the passengers sitting in the back seat were killed. I think the accused was guilty of a rash and negligent act, because although if he had been a really competent driver, he ought to have been able to pass another car, even at a speed of fifty or sixty miles an hour,- the road being straight and there being no obstruction, still it is clear from the circumstances of the case that the accused was not capable of controlling the car while going at that speed. He evidently swerved to the left much too sharply, having regard to the pace at which he was going and the load in his car, and I think that was his rash and negligent act. When he found that he could not pass the other car, without going at an excessive speed, he ought to have refrained from doing so. But I do not think that in a case of this sort, we can measure the sentence to be imposed by the consequences of the act, unless those consequences were necessarily inherent in the act. If, for instance, a man drives his car rashly and negligently into a crowd of people, one might say that that was a grossly rash act, because he was bound to kill or injure many people. But one cannot possibly say that in going at too excessive a speed in order to pass another car, the accused was bound to kill the occupants in his own car. Having got six passengers in his car besides himself, it was certainly necessary for him to be careful. But I do not think we can hold that the fact that three deaths resulted is a circumstance which ought greatly to enhance the punishment to be inflicted for the rash and negligent act of the accused. I do not think that the death of the three persons was at all a natural and probable consequence of his act. In the circumstances, the rash and negligent act of the accused being in driving at a speed at which he was unable to control the car, I do not think we are in a position to say that the punishment of four months' rigorous imprisonment inflicted by the Magistrate was so grossly insufficient, that we ought to interfere in revision.
I think therefore that there should be no order on the reference. The rule is discharged.) Then the learned Magistrate says that there was ' extremely rash and callous conduct of the accused causing the accident without the least justification.' If I took that view of the accused's conduct, I should certainly be in favour of enhancing the sentence. I think that in all these cases one has to consider whether the rash and negligent act of the accused which has occasioned the death, shows callousness on his part as regards the risk to which he was exposing other persons. I think the severity of the sentence must depend to a great extent on the degree of callousness which is present in the conduct of the accused. Here I do not think there was any callous conduct. As I said before, the accused committed an error of judgment, but, having done so, he did his best to avoid the consequences of his error. The learned Magistrate's third ground is that : ' Accidents of this nature are of frequent occurrence, and in the interest of administration of justice, and protection and safety of human life, such offences require to be sternly dealt with,' I do not agree with that principle. One has to remember that driving motor cars has become an essential part of human activities, and it is impossible to avoid a certain number of accidents. In my view it is no part of the duty of Courts to punish with savage sentences every motorist who has the misfortune to have an accident, which results in a loss of life, even though the accident be due to an error of judgment on the part of the driver. The circumstances of each case must be considered in imposing sentence.
6. In my opinion, there is no reason why we should interfere with the discretion exercised by the learned City Magistrate in imposing merely a fine. We, therefore, make no order on the reference.
7. I agree.