C.M. Lodha, J.
1. Petitioner Bhagwana was tried for an offence under Section 304A IPC for allegedly causing the death of Mst. Mangli by driving truck No. RJL 8384 rashly & negligently on Bagra Jalore road on July 26, 1972, at about 11 a.m. He denied that he was driving the vehicle in question and thus denied having committed the offence. The learned Judicial Magistrate, Jalore, by his judgment dated August 4, 1975, convicted the accused for the aforesaid offence and sentenced, him to one year's simple imprisonment. The accused filed appeal, which was dismissed by the Additional Sessions Judge, Jalore, on September 28, 1976. Hence, he has filed this revision-petition.
2. The facts borne out on the record, and held to be proved by the courts below, are that it was the accused Bhagwana, who was driving the vehicle in question at the relevant time by which the death of Mangli was caused. It is clear from the evidence of the main witness in the case, Jamuna PW 3, who is the sister of the deceased Mst. Mangli, that she along with the deceased, her sister Mst. Moti and her brother Alhla, was coming from their field with bundles of grass on their heads and when they reached near Tash-Khana-ki-Bavari, (a step well I. they took down the bundles of glass from their heads & when the witness went to the well across the, road for drinking water a few moments thereafter came the deceased Mst. Mangli behind her & while she was drinking water, she saw that her sister Mst. Mangli had fallen down, on account of being struck by a truck. The other witnesses have corroborated her testimony in material particulars. The learned Additional Sessions Judge has come to the conclusion that the truck was moving at a high speed even though there was a caution board, to drive slow about 50 ft. behind the spot where the occurrence had taken place. He has further found that the truck was moving on the wrong side of the road i.e. on the right edge of the road and also that the driver did not blow the horn and was driving with defective brakes. On these premised, the learned Additional Sessions Judge concurred in the finding of the trial court that the driver was driving the truck rashly & negligently.
3. The point for consideration before me is whether in the fact and circumstances of the case an inference of rashness or negligence on the part of the driver can be drawn So far as the speed of the truck is concerned, it is in evidence that the truck stopped at a distance of 30 ft. from the place of accident. No doubt, the witnesses, who are villagers, have made a sweeping statement that the truck was being driven fast, but that is neither here nor there. The fact that the truck stopped only at a distance of 30 ft. from the place of the accident goes to show that the truck was not being driven at a very high speed, but it was at a normal speed on an open road where there was neither any bus stand, nor habitation. So far as the parking brake is concerned, it is common knowledge that parking brake is not used for stopping the vehicle when it is in speed. Thus the fact that parking brake of the truck was not in order, is not material. However, so far as the foot brake is concerned, the evidence of PW 8 K.S. Sakaria is that it was working, though in emergency it hid to be applied twice. It appears that the driver had applied the brakes and that is why the truck stopped within 30 ft of the place of accident. This feet also shows that brakes were, in order. The findings, therefore, that the brakes were not in order and that the truck was going at a very high speed do not follow from the premises on which they are based.
4. The learned Additional Sessions Judge has accepted the evidence of she prosecution witnesses in toto on the ground that they had no enmity with the accused. The question of enmity hardly arises in such cases. In the matter of accidents, it is usually a tendency of each party to throw the blame on the other, but the court has to see whether from the facts proved, an inference of negligence or rashness on the part of the driver can be drawn.
5. Now in the present case, as already stated above, the truck was being driven at its normal speed oh an open cross-country load. The place where the girl crossed the road is neither a bus-stand nor a pedestrian crossing, nor there is habitation nearby. It would, therefore, be too much to expect of a driver of a vehicle driving on an open road to keep a Jook out to see throughout his driving whether any pedestrian is trying to cross the road. Here, I wish to make it clear that the position may be different when the vehicle is driven in a town or village. But here is a case of driving in cross-country on an open straight road. We have it from the evidence of PW 3 Jamuna that Mst. Mangli, deceased, tried to cross the road when the vehicle was approaching. It appears that Mst. Mangli suddenly crossed the road. The width of the road, as borne out from the site-plan, site inspection-note and other evidence, is 11 ft 10 inches. It appears that while suddenly crossing the road, Mst. Mangli did not take note of the approaching truck and, consequently, she dashed against the truck without the driver becoming aware of her crossing. It appears that the driver tried to save her by turning the truck a little towards the edge of tree road but ft was too late before the driver became aware of Mst. Mangli's crossing the road. It is common knowledge that if a person suddenly crosses the road, the truck driver, however, cautiously he may be driving in cross' country, may not be in a position to save the accident. In these circumstances, the benefit of doubt must go to the accused as it will not be possible to hold that the driver of the truck was rash or negligent.
6. In the result, the revision-petition is allowed, the order of conviction and sentence is set aside and the petitioner is acquitted of the charge under Section 304A IPC. The petitioner is on bail. His bail bonds are hereby cancelled.