Judgment

PALEKAR, J. : This is an appeal by special leave from the order of conviction and sentence passed by the High Court of Andhra Pradesh. The appellant, who was a Bus Driver, had been charged before the leaned Munsif Magistrate, Alampur, for offences under sections 304A, 338 and 337-IPC, but was acquitted. The State Government appealed against the acquittal to the High Court and the High Court has convicted him under all those sections and sentenced him to suffer rigorous imprisonment for two years under section 304A, IPC and made the other sentences to run concurrently with the same. Hence the present appeal.

2. The appellant was the Driver of a R. T. C. Bus APZ 1672 and was driving the vehicle on 1-1-1966 from Kurnool to Vanaparthy. The bus left Kurnool at about 6.15 A.M. and reached Railway level crossing gate between Alampur Road Station and Monopad Railway Station at about 6.30 or 7.00 A.M. The level crossing is in charge of a gateman and it is the duty of the gateman to close the gate when a train is expected to pass by. It is an admitted fact that at the time when the appellant with his bus reached the level crossing the gate was open. The appellant passed through the gate and crossed the meter gauge track when suddenly a Goods train dashed against the bus on the rear side with the result that the bus was thrown off causing serious injuries to the passengers. There were about 43 passengers in the bus. Out of these, one died on the spot, three died later in the Hospital and about 21 other passengers received more or less severe injuries. The charge against the appellant was that he was rash or negligent in crossing the railway track when a Goods train was about to pass the gate.

3. The appellant s defence was that he was neither rash nor negligent and the accident was unavoidable. He did not realize at all that a Goods train was passing at the time and since the gate was open he crossed the railway crossing absolutely oblivious of the fact that a train was approaching. The learned Trial Magistrate accepted the defence but the High Court was pleased to hold that the appellant was both rash and negligent.

4. It is contended before us that the learned Magistrate had taken a very reasonable view of the case and, therefore, the High Court should not have interfered with the order of acquittal. It is also contended that the view of the High Court could not be sustained on the evidence which was so conclusively in favour of the appellant that the conviction was improper.

5. A large number of witnesses examined to prove the case against the appellant but most of them turned hostile. The High Court, however, relied upon a few witnesses for its finding that the appellant was both rash and negligent, and it is contended before us that these witnesses had not really proved the charge against the appellant.

6. A few facts require to be noted at the outset.

(1). The bus was not driven and could not have been driven fast. The vehicle, before it reaches the level crossing, has to negotiate two bends on the road. The road is U shaped. The base of this U shape is formed by the level crossing and the two arms of this U lie on either side of the Railway track. The approach from Kurnool is at one end of the right arm and to come to the level crossing a vehicle has to negotiate two bends - one near the approach and the other near the level crossing. After these bends are negotiated the road climbs up to the level crossing, the railway track being at a much higher level than the road. The situation, therefore, of the road and the level crossing would clearly go to show that no vehicle which is to negotiate two near bends and climb up a gredient can maintain high speed. As a matter of fact it is admitted by P. W. 13 S. Veerappa who was the conductor of the bus that at the time when the bus was entering the railway gate it was going dead slow. This is also the evidence of P. W. 56 G. Laxman Rao, a Sub-Inspector or Police who was travelling in the