Judgment

DUA, J. :- This is an appeal by special leave under Article 136 of the Constitution from the judgment of the Bombay High Court upholding on appeal the appellant s conviction by the Presidency Magistrate, 12th Court, Bandra, Bombay under Section 304-A, Indian Penal Code and sentence of rigorous imprisonment for 18 months and fine of Rupees 1,500/-, in default further rigorous imprisonment for four months.

2. According to the prosecution, on July 2, 1967, at about 4.15 p.m. the appellant was driving a B. E. S. T. motor bus bearing No. BHQ 1019 along the southern side of Tilak Road from east to west. When the bus suddenly mounted the southern footpath and dashed against an electric pole felling it down the bus stopped. A person who was near the electric pole was knocked down dead as a result of the electric pole falling on him. His right hand was severed, his head crushed with the brain matter sticking on to the wall near the electric pole. It was a double decker bus. One Harbansingh Ramsingh (called bhaiya) also substained injuries as a result of having been hit by the bus.

3. According to the Appellant, he was driving the bus at a moderate speed from east to west along the southern side of Tilak Road when suddenly a bhaiya, in his attempt to cross the road, came near the right wheel of the bus. He was noticed by the appellant when he was about 3 ft. away from the front right portion of the bus. In order to avoid him the appellant applied his brakes and took a turn to the left, thereby mounting the southern footpath and it was in these circumstances that he struck against the electric pole. The accident, according to his plea, occurred because of circumstances beyond his control. The Presidency Magistrate did not believe the defence version and observed:

"According to the accused he was going at a speed as if he was approaching a bus stop. If that were so and if Harbansing was crossing the road from north to south as alleged by the defence and if the accused applied his brakes after seeing the bhaiya, then it is hard to see how the bus did not stop there and then. The bus however went on to the southern footpath and dashed against the electric pole with such a force that it was uprooted. The fact that the accused was not able to halt the bus there and then show that bus was in good speed. The accused could not control its speed in time. It therefore held that the prosecution had established its case against the accused."

On this reasoning, finding the accused guilty, the trial Court convicted and sentenced him, as already noticed. It may be pointed out that the accused was also charged under Sections 279 and 338, Indian Penal Code but the Court did not consider it proper to impose separate sentences under these sections.

4. On appeal to the High Court the learned Chief Justice, after considering the arguments urged before him, observed that in the circumstances of the case it was impossible that Harbansing could come within 3 ft. of the bus in question before the accused first saw him. Even after the accused had realised the danger he could have according to the learned Chief Justice avoided climbing on to the footpath and injuring the pedestrians there, after knocking down the electric pole, had it not been for the speed of the bus which prevented him from controlling the vehicle. The learned Chief Justice considered it unimaginable that the electric pole would be completely uprooted unless the bus was in considerable speed when it hit the pole, the heavy nature of the vehicle notwithstanding. This by itself, the High Court observed, was one of the factors which establish the rashness and negligence of the accused. The High Court opined that it must have taken quite some time for the bhaiya to cross 35 ft. of the road (the road was stated to be 35 ft. wide) even though he was running. If, therefore, the man started running from the northern end of the road the vehicle must have been at least 50 or 60 ft. away from the point