1. Accused Gulamsaeed was convicted by the Sub-Divisional Magistrate, Depalpur (Hatod) under Section 304A, I. P. C, and was sentenced to one year's rigorous imprisonment. The appeal filed against this conviction was unsuccessful. The accused has now come up in revision.
2. The material facts giving rise to this appeal are as follows:
3. In the evening of 8-2-1951 at about 5-30 or 6 P. M. accused was driving his goods truck M.B.G. 1260 while proceeding from Indore to Dhar. At Machal a place between Indore and Dhar there was Bazar day and temporary shops were set up by the side of the road leaving a narrow portion of it free for traffic. When the accused was taking this truck through the Bazar an eight year old girl named Basanti came running from the left and wanted to cross the road and go to the right. The girl was very near the truck and the accused therefore gave a swerve to his truck to the right in order to gain time to allow the girl to cross the road. The girl Basanti crossed the road and the accused then again turned back his truck to his side and wanted to proceed further. At a distance of about 15 paces from the place where the girl crossed the accused was required to stop the truck as his attention was called by the persons standing in the Bazar that a girl was hurt by the truck and found Basanti lying in a precarious condition. Accused and the owner of the truck who was also there proceeded to the Thana where the report was lodged.
4. From the medical report it appears that the girl Basanti died of extensive fracture of the skull with Injuries to the brain.
5. Five witnesses were examined on behalf of the prosecution in support of the charge under Section 304A, I. P. C. having direct knowledge of the incident. (His Lordship referred to the evidence and proceeded).
6-10. From this account of the incident-It is clear that both from the circumstance that it was a Bazar day and people were moving about making purchases and also from the fact that only a small portion of the road was free for passage it can be accepted that the truck was. proceeding at comparatively moderate speed. This is corroborated practically by all the witnesses except P. W. 6 Motiram who says that it was proceeding at a brisk pace. Considering the evidence as a whole it can be held to be proved that the truck was proceeding at a moderate speed. Witness Motiram was actually engaged in. selling Mircha and his estimate of the speed cannot be accepted as correct in view of the weight of the other oral evidence and the circumstances in which the incident occurred.
11. It is also clear that the driver saved the girl and allowed her to cross by a timely action on his part in giving a swerve to his truck on to the right. After the girl had crossed naturally he would proceed further by taking the truck to his side. The girl apparently does not seem to have been run over. Nor does it appear that she was hit by the front part of the right side of the truck. The witnesses unanimously state that she had actually crossed. Therefore she must have been hit by the back side and under these circumstances the question arises as to whether the accused can be held guilty of an offence under Section 304A, I. P, C. Section 304A, I.P.C. provides that:
Whoever causes the death of any person by doing any rash or negligent act not amounting, to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
12. Therefore the question which we have to consider is as to whether act of the accused can be said to be rash or negligent. Negligence is the omission to do something which a reasonable man, guided upon those circumstances which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. In order to -establish the criminal liability the fact must be such that the negligence of the accused shows such disregard or lack to the safety of the other. While culpable rashness is acting with consciousness that the mischievous & illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. Under the present circumstances it cannot be said, that the accused was acting rashly. In fact when the girl tried to cross he did act with appropriate-promptness to avoid the accident and rightly gave a swerve on to the right. Nor can it be said that he was proceeding at an excessive speed.
13. The learned Government Advocate contended that although it may not be possible to attribute the rashness to the accused, the accused's conduct was certainly negligent. After the girl had crossed the driver should have stopped the truck instead of proceeding further in order to avoid any possible harm to persons standing by as it was a Bazar day and risk to the girl was also not over. He contended that the girl after she crossed reached the extreme right point and there was hardly any space left for her to proceed further.
14. So far as the latter question is concerned there are no materials on record to substantiate the same and it is difficult to say that the driver who had succeeded in saving the life of a pedestrian and in spite of this fact should have stopped the truck lest the person who had crossed might stand the chance of being hit by the back portion. When the car is in motion the driver is expected to keep his eye towards the front side and not on the back side. It is only if the car is being taken on the reverse side that the driver's attention must be towards the back side. In this state of circumstances it cannot be said that the act of the driver was either rash or negligent in order to sustain a conviction under Section 304A, I.P.C.
15. The learned Sessions Judge's view that the driver attempted to escape does not appear to be borne out by the evidence on record which taken as a whole indicates that as soon as the driver's attention was called to the fact that the girl was hit he stopped the car. One says at 3 or 4 paces the other says 10 or 15 paces. At any rate it stopped within a reasonable distance. Nor can much be made of his subsequent conduct.
16. I am also not in agreement with the view of the learned Sessions Judge that the driver because he being on the right side therefore the girl standing on the right side ought to have been seen by him while driving had he been attentive, Haying regard to the nature of the incident this position cannot arise. The girl crossed and the driver went ahead. The driver would naturally see ahead and not backward to the right and if he fails to look backward on to the right it cannot be said to be acting with culpable negligence or rashness. The principle underlying in the cases of negligent driving having been discussed by a Bench of this Court (Shinde and Dixit JJ.) in - State v. Ghanashyam MLB 1952 Cri 60 (A), his Lordship Justice Dixit after indicating what can be described as a negligent or rash act says that:
Simple lack of care such as will constitute civil liability is not enough.
He referred to - Andrews v. Director of Public Prosecutions 1937-2 All ER 552 (B) wherein Lord Atkin held that a very high degree of negligence is required to be proved before the felony is established and this may aptly be described by the epithet 'reckless'. As in that case in this case too there does not appear to be an appropriate sketch of the place of the occurrence indicating the width of the road, the place where the incident occurred, the place where the body was lying, the distance of the adjoining houses and the situation of the temporary shops. The facts proved are wholly insufficient to attribute that high degree of negligence which is intended to establish a charge under Section 304A, I. P, C. Even assuming that some very careful driver would after the girl had crossed have stopped the car then and there cannot give rise to inference that the act of the accused in proceeding further was grossly negligent and reckless.
17. Having regard to the entire evidence of the case, I acquit the accused. His bail bond is cancelled.