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 Sections 279 and 337, 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:
| || |_____________________| |_____________________Club Road o Club Gate_____________________ ______________________P.W. Mr. Lalta | |Prasad | |____________________| |______________________Edmonstone Road____________________ _______________________| Car || O | N| | Stanley RoadEkka | |____________________| |______________________ O X Elgin Road____________________ ________________________W | | E| | 80 yards| | P.W. Chironji| | Lal| || | S
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.
4. Now the Magistrate has not clearly stated what his finding is as to the driving, of the ekka. In the first place there is a contradiction in the evidence of the prosecution. P.W. 3 Mahabir states that he got on the ekka near the post-office in Elgin Road and was driving as a passenger on the ekka to his master's house, No. 8 Elgin Road. He does not explain why he, as a sweeper thought it necessary to have an ekka to transport him for this short distance which is about half a mile at most. Mahabir further states that Nasir was driving the ekka. It is admitted however toy Chironji Lal and Lalta Prasad that when they came up the ekkawala meaning Nasir was not there. The evidence of P.W. 5 Naair is that he was not there and that he was not driving the ekka. He says that he left the ekka standing at the railway station and went to get some change and when he returned the ekka had disappeared. The prosecution treated this witness as hostile. The suggestion of Nasir was that Mahabir who was a passenger on the ekka according to him at the railway station took the ekka away and drove it. The story of Nasir is supported by the owner of the ekka, Buddhu Myan who says that Nasir told this story to him and that he was informed that the ekka was in the Cannington Police Station and that he went there next morning at 5 A.M. to get it. The Magistrate has disbelieved the evidence of Buddhu Myan merely because the Sub-Inspector is taken down as saying : 'It was not said that ekka was stolen'. There is no record produced of the police diary and under Section 162, Criminal P.C., the statement of a witness in evidence can only be contradicted by his alleged statement to the police on two conditions, one is that the application for contradiction is made by the accused, which was not the case here, and the other is that the statement of the police should be proved by a certified copy of the diary. The Magistrate failed to carry out the provisions of this Section and he was wrong in holding that the evidence of Buddhu Myan had been contradicted by the Sub-Inspector. Now even if the Magistrate had been right in believing that Nasir was driving the ekka, it does not improve the case for the prosecution much, because the Magistrate states that Nasir has no driving license. Whether the ekka was driven by Nasir or Mahabir, the driver had no license.
5. Another point which the Magistrate had failed to note is that the evidence of the prosecution witnesses shows that the ekka had no lights. It is true that Mahabir says : 'There was one lantern.' He does not say however that the lantern on the ekka was burning at the time. On the other hand Chironji Lal says that when he came up the ekka had no lights. He also says that the car had no lights, but he is contradicted in this by prosecution witness Lalta Prasad who says that the lights of the car were on. Possibly what he means is explained by defendant witness Mr. H.P. Singh who states 'after the accident one light was working.' Apparently the other light of the car was injured. The situation therefore is that the ekka was being driven by a person who is not licensed and the light of the ekka was not burning. Now when the ekka was approaching along Elgin Road to this crossing the lights from the car which had the lights burning would have illuminated the crossing from the time when the car was 100 yards away from the crossing. The driver of the ekka could therefore have seen that there was a car approaching and if the driver had acted with any care whatever, he would have waited until the car had passed the crossing. The collision in my opinion was caused solely because the ekka which had the opportunity of seeing that a vehicle was approaching did not act on that information. The car on the other hand had no knowledge that a vehicle was approaching bad it was therefore not incumbent on the car driver to do more than he did, that is to approach the crossing at a reasonable speed. The accident was solely due, I consider, to the ekka neglecting these elementary precautions. I may also point out that it is desirable that the authorities should have the obstructions which prevent persons seeing at these crossings, removed. For many years this matter has been the subject of comment and the authorities have not taken any action in the matter. It is desirable that they should do so without further delay and this is a matter to which the Magistrate might well devote his attention.
6. Another matter on which learned Counsel for the prosecution as dealt is that the accused did not comply with Rs. 87 of the U.P. Motor Vehicles Manual which requires that where an accident has occured to any person, the driver
shall render to such person such assistance as may be reasonably possible, and if the accident has been attended with injury...shall further report the accident without delay to the nearest police station, or after conveying, where necessary, the injured person to hospital, at the police station nearest to the hospital.
7. Now defence witness Mr. H.P. Singh, Inspector of Agriculture, states that the accused left him on the spot to send the injured man to hospital and that he got a tonga and he lifted the injured man to put him into the tonga. The injured man did actually arrive at the hospital, as it is stated in the injury report that he arrived at 12 in the night. The accused said that he left the place because his wife was sick and in his report he explained this matter at greater length. The witness for the prosecution, Mr. Lalta Prasad, stated:
The driver refused not to be in a position to take the injured. Tonga came after oar left and we sent injured to Civil Hospital on car.
8. What he means by 'we' is not clear. Mahabir does not say who sent him to hospital. The witness Jamil states that he
asked the accused to take the man to hospital, but he said he was unable...I put boy in car and brought to civil hospital....Tongawala refused to take injured....
9. It is not clear as to who took the injured man to hospital, but he was taken to hospital and Mr. Singh had been left to see that this happened. I do not think that under these circumstances the Magistrate is correct in finding that the accused did not comply with the elementary rule to render assistance to the injured. Another point is in regard to the finding of the Magistrate that the accused did not make a report. Now the occurrence was at 9-15 P.M. and the accused was a person living in the Agricultural Institute on the other side of the Jumna and he took his wife there and then returned to the spot. He did not make a report to the police until the next morning when he sent one report to the Superintendent of Police and and another in the course of the day to the police officer of the Cannington Police Station. As the accused made two detailed reports on the day following the night of the accident, I do not think he failed to comply with the rule in question. I do not think that many of the inhabitants of Allahabad are familiar with the limits of the different police stations or that they would be able to ascertain which was the correct police station to approach when an accident happens at night at a place far from their residence. I accordingly accept this reference and acquit the accused of all the charges and direct that the fines, if paid, be refunded.