1. This is a revision application to revise an order of the Sessions Judge, Central Saurashtra Division, dismissing an appeal of the applicant from his conviction of offences under Sections 304A and 338, Indian Penal Code by the First Class Magistrate, Rajkot. An application by the prosecution was made before the Sessions Judge for enhancement of the sentence. The learned Sessions Judge did not think it fit to make a reference to the High Court for enhancement of the sentence; but when the present revision application was admitted, this High Court issued a notice to the applicant to show cause why the sentence should not be enhanced. So that in the present case we have to consider the question of the conviction of the applicant as also the question of the sentence imposed by the Magistrate, in case the conviction is upheld.
2. The facts leading to this application are shortly that the accused-applicant was driving a motor car bearing No. 506 and he was proceeding from Sir Lakhajiraj Memorial Hall towards Dharampur Uttara at Rajkot at about 4.30 p.m. on 21st July 1949, when the car struck one hotel boy named Kishan and knocked him down. Thereafter, the car knocked down one girl named Manjula and her father Jamnadas; as a result of the injury, the girl died soon after, and before she could be taken to the hospital. Jamnadas had to remain in the hospital for 14 days for medical treatment, while the boy Kishan had a fracture of bone. So that the driving of the car by the applicant resulted in death and grievous hurt. The learned Magistrate, who tried the case, sentenced the applicant for the offence under Section 304A, Indian Penal Code to four months' simple imprisonment and to pay a fine of Rs. 500/- and for the offence under Section 338 to four months' simple imprisonment. The applicant was also prosecuted for an offence under Section 112 of the Motor Vehicles Act; he was convicted and sentenced to pay a fine of Rs. 20/-. Against his conviction for offences under Section 304A and Section 338, Indian P.C. alone the applicant filed the appeal to the Sessions Court. Both the lower Courts have come to the concurrent finding that the applicant was guilty of a rash and negligent act resulting in death and grievous hurt and they have taken into consideration the following circumstances which have been held proved by evidence:
1. The applicant was a novice and did not hold a motor-driving licence. This fact is admitted on behalf of the applicant. It is also admitted that the applicant, at no time,, held a motor-driving licence. It seems that he had applied for a licence, but the question of its grant was still pending when the present accident occurred.
2. The applicant was driving the car which belonged to one Jugatram Raval and the car was defective inasmuch as, (a) it had neither an electric hooter nor any bulb horn, so none was sounded, (b) the accelerator was not working properly, (c) the foot brake was ineffective, and (d) the hand brake was totally out of order.
3. With this car the accused, who was a novice and who had no licence had the temerity to drive at 4.30 p.m. in one of the most crowded localities of Rajkot at a time when there was heavy traffic.
3. The car first knocked down the boy Kishan & after proceeding 4 or 5 feet knocked down the girl Manjula and her father Jamnadas. Thereafter the car came to a stop at, a distance of about 39 feet. The Sessions Judge states:
From the evidence it is clear that Sir Lakhajiraj road and Dharampur Uttara road have got very heavy traffic, especially in the evening when school boys return from the schools. When he reached near the Natakshala by-lane, while he was proceeding from Sir Lakhajiraj Road towards Dharampur Uttara, he saw a Khatara standing about 10 or 15 feet on the left side, he saw at least four persons walking in front of him, he also saw a Tonga standing on the right side and he also saw a Khatara passing between them. There were also school boys according to Laxmishankar. Under these circumstances he being a novice and having no hand brake and inefficient loot-brake without any horn it was very rash and negligent of him to try to overtake the pedestrians or the vehicles on such a road when it was full of vehicles and pedestrians. The appellant knocked down Kisnan but he was unable to stop the Motor car. He then knocked down the girl and Jamnadas. He could not at that time stop the car but he was able to stop it at a distance of 39 feet after knocking down the girl. For a novice motor driver to drive a motor car on a road where there is heavy vehicular as well as pedestrian traffic a motor car which had no hand-brake and inefficient foot-brake without any horn is an act which is rash and negligent. Death of Manjula has taken place by rash and negligent act of the appellant and grievous hurt is caused to Kishan and Jamnadas. The act was so rash and negligent as to endanger human life and personal safety of others.
The learned Sessions Judge has not referred to the speed at which the applicant was proceeding, but the trial Court has made a reference to the evidence of one of the witnesses to the effect that the car was being driven fast, although the witness is not able to state definitely at what speed it was being driven.
4. The learned Advocate for the applicant has contended that the mere facts that the applicant held no driving licence and that the car was not in a proper working order are not sufficient to warrant the inference of a rash or negligent act. He contends that it has not been established by evidence that he was driving at a fast speed or in a negligent or rash manner to bring the applicant within the offences under Sections 304A and 338, I.P. Code. He strongly relied upon a ruling of the Oudh Court in the case of - Emperor v. Akbar Ali AIR 1936 Oudh 400, wherein it was held:
The rash and negligent act referred to in Section 304A means the act which is the immediate cause of death and not any act or omission which can at best be said to be a remote cause of death. Whore there was no rashness and negligence on the part of a lorry driver charged under Section 304A for having run over and killed a woman, so far as his use of the road and the manner of driving was concerned, the fact that the accused's lorry had no horn or inefficient brakes cannot be taken into consideration in convicting the accused under Section 304A, though they can be made the s, subject of a prosecution under the Motor ' Vehicles Act, when it is clear that the absence of the horn or the inefficiency of the brakes was not in any way responsible for the accident.
This case is distinguishable from the present case, as it was definitely held there that the absence of the horn or the inefficiency of the brakes was not in any way responsible for the accident. In the present case the accused was driving in a very crowded locality, where inefficient brakes and want of a horn would contribute to an accident and more so if the driver is a novice.
5. The learned Advocate for the applicant has also relied upon two bind Cases reported in - Kanji Juma Khoja v. Emperor AIR 1938 Sind 100 and - Emperor v. W.S. Priestley AIR 1944 Sind 124, wherein the principles ot criminal liability arising out of a rash or negligent act have been exhaustively discussed. We agree with the principles contained in these two rulings, which are based upon decided English and Indian cases. Mere carelessness is not sufficient. Section 304A, like other Sections of the Ferial Code, requires a 'mens rea' or guilty mind. The rashness or negligence must be such as fairly to be described criminal. It has been laid down:
Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow but with the nope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal, and mischievous effect will follow but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that, if he had, he would have the consciousness. The imputability arises from the neglect of the civic duty of circumspection.
In the case of - Empress of India v. Idu Beg 3 All 776, Straight J., observed as follows:
Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause, injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
The question whether the accused's conduct in a particular case amounted to culpable rashness or negligence would have to be judged from the circumstances of each case and on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient upon all the circumstances of the case. The learned Advocate for the applicant has also referred us to the case of - Nga Ohn Saing v. The King AIR 1939 Rang 209, wherein the Rangoon High Court observed:
Failure by a person, driving a motor vehicle, to sound the horn is not necessarily negligence, and to sound a horn does not necessarily negative rashness or negligence in driving. Each ease must be decided on its own facts.
6. In the present case both the lower Courts have come to the conclusion from the admitted or proved facts stated above that the' accused was guilty of a rash and negligent act. In my opinion, the rashness of the accused consisted in venturing to drive in a crowded' thoroughfare a defective car which had no horn and the brakes of which were entirely defective, knowing himself to be still a novice. His negligence in driving comprised the act of trying to overtake the pedestrians and other vehicles which were on the road being fully conscious of his incompetence as a driver. This is supported by the fact that he was unable to control the car which took as many as 39 feet to come to a stop. I am fully convinced that the applicant accused has been guilty of 'both criminal rashness and criminal negligence. This case comes exactly within the principles enunciated by Straight J. above reproduced. We -therefore see no reason to interfere with the order of conviction.
7. As regards the sentence, the learned Advocate for the applicant has drawn our attention to the case of - Chaudhri v. Emperor AIR 1933 Oudh 563, where the Oudh Court reduced the sentence for offence under Section 338, I.P. Code from three months' rigorous imprisonment and a fine of Rs. 150/- to a fine of Rs. 100/- only. But that was a case of a conviction under Section 338, I.P. Code only. The learned Advocate has also relied upon two cases of the Bombay High Court reported in AIR 1937 Bom one at p. 96 and the other at page 80. In the first case of - Emperor v. Khanmahomed Shermahomed AIR 1937 Bom 96, Beaumont C.J. was pleased to observe:
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 collousness 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.
In the second case of - Emperor v. Marshal : AIR1937Bom80 , the Bombay High Court refused to enhance the sentence of four months' rigorous imprisonment imposed for offence under Section 304A, I.P. Code. This was also a case of rash and negligent driving which had resulted in the death of three persons. I may, however, refer to a case which came before this High Court in - 'Criminal Revn. Appln. No. 1 of 1950 (Sau)', wherein a Bench of this High Court, in the case of rash and negligent driving of a motor bus without any licence causing death of two persons and grievous injury to the third, enhanced the sentence from two months' simple imprisonment imposed by the Magistrate to rigorous imprisonment for one year. The learned Judges were pleased to observe:
The accused was convicted of these offences, but the trying Magistrate gave him practically a nominal sentence of two months' simple imprisonment for all these offences, inasmuch as he was of the opinion that the accused belonged to a respectable family. Against this conviction, an appeal was filed, but it was dismissed and the accused had come to this Court in revision. While dismissing the revision application, we were of the opinion that the sentence was absolutely ridiculous and that it ought to be enhanced. We therefore, requested the Advocate-General to apply for enhancement of the sentence. He has accordingly done so and after hearing him as well as Mr. Baxi, the learned Advocate for the opponent, we are of the opinion that no circumstance has been shown to us why such a ridiculously low sentence had been given by the Magistrate. Not only the accused had no licence, but he was driving a fully loaded bus in such a rash and negligent manner that it at ance caused the death of two persons and grievous injury to the third. The accused must, therefore, suffer the consequences of his act. We are accordingly, of the opinion that his sentence should be enhanced and we enhance it to rigorous imprisonment for one year, retaining the fine.
The question of sentence depends upon the circumstances of each case. No hard and fast rule can be laid down.
8. Taking all the circumstances of the present case into consideration, we think that the sentence imposed by the learned Magistrate of four months' simple imprisonment and a fine of Rs. 500/- is too lenient. We order that the sentence of four months' simple imprisonment be enhanced to that of four months' rigorous imprisonment and that the fine imposed by the-learned Magistrate be retained. With this alteration, we dismiss the revision application. The applicant is ordered to surrender to his bail.
9. I agree.