1. This is a reference by the District1 Magistrate, Bombay Suburban District, inviting us to enhance the sentence passed upon the accused, who is convicted under Section 301-A, 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 wav, 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 vary 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. 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 throw 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. 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. Marshal : AIR1937Bom80 . 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.
4. 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. 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.
5. I agree.