In running-down cases, the prosecution must produce evidence to establish rash or negligent driving of the motor vehicle by the accused. Not blowing the horn in a silence zone does not amount to negligence.

Headnote:
CRIMINAL LAW - SECTION 304-A OF THE INDIAN PENAL CODE - RASH AND NEGLIGENT DRIVING - ELEMENTS - EVIDENCE REQUIRED - SILENCE ZONE - BLOWING OF HORN - NOT AN IMPERATIVE DUTY - SUBSEQUENT CONDUCT OF ACCUSED - RELEVANCE.
Fact of the Case:

The accused was convicted under Section 304-A of the Indian Penal Code for causing death by rash and negligent driving. The prosecution alleged that the accused was driving at a fast speed, did not blow the horn, and did not stop the motor lorry immediately after the accident.
Finding of the Court:

The court held that the prosecution failed to prove that the death of the boy was due to any rashness or negligence on the part of the accused. The court found that the accused was driving at a speed of 35 miles per hour, which was slightly in excess of the speed limit but not excessive enough to amount to rashness or negligence. The court also found that the accused did not blow the horn because the place of the incident fell within the silence zone, and blowing the horn would have violated a notification issued under Rules which have statutory force. The court further found that the accused did not stop the motor lorry immediately after the accident because he was afraid of being manhandled by the crowd or wanted to disappear to deny being at the wheel at the time of the incident.
Issues: 1. Whether the accused was driving at a fast speed? 2. Whether the accused blew the horn? 3. Whether the accused stopped the motor lorry immediately after the accident?
Ratio Decidendi: 1. The court held that the evidence that the accused was driving at a fast speed was not enough to prove rashness or negligence, as the witness who used the expression "fast speed" did not elucidate what his notion of speed was. 2. The court held that not blowing the horn cannot amount to rashness, and in the present case, the accused was not negligent in not blowing the horn because the place of the incident fell within the silence zone and blowing the horn would have violated a notification issued under Rules which have statutory force. 3. The court held that the accused's subsequent conduct in getting out of the motor-lorry and running away showed that he did not stop the motor-lorry immediately, either because he was afraid of being manhandled by the crowd or what is perhaps more likely, because he wanted to disappear so as to be able to deny, later on, that it was he who was at the wheel of the motor-lorry at the time of the incident.
Final Decision: The court allowed the appeal and set aside the conviction and sentence passed upon the accused by the trial Court.

JUDGMENT - 1. This is an appeal by the accused who has been convicted by the learned Presidency Magistrate, 29th Court, Dadar, of the offence under Section 304-A of the Indian Penal Code and sentenced to one years rigorous imprisonment. The facts of the prosecution case are that there is a road somewhere near Wadala, known as Rafi Ahmed Kidwai Road which is in four lanes, each of which is separated from the other by a slightly raised reservation track for pedestrians. It has been conceded before me by the learned Assistant Government Pleader, Mr. Gambhirwala, after taking instructions from an officer of the Traffic Control Department in Court, that of these four lanes, the two eastern lanes are one way, namely, for traffic proceeding from North to South; and the two western lanes are for traffic proceeding the other way, namely, from South to North. It has also been conceded by Mr. Gambhirwala after taking instructions as aforesaid, that the outer lanes on either sides, that is, the lanes running along foot-paths on each side, are intended for heavy traffic, namely, for buses and trucks, whereas the other lanes are for private cars and taxis. It has also been conceded before me by Mr. Gambhirwala that by virtue of Notification No. 11698/Traffic dated 29th June 1962 issued by the Commissioner of Police, Greater Bombay, in exercise of the powers conferred upon him by Rule 268 (2) of the Bombay Motor Vehicles Rules, 1959, published in the M. G. G. Part I, Bombay Division, dated 30-8-1962, page 1456, there was, and still is, at the place where the incident occurred an absolute prohibition, inter alia, against the blowing of horn by drivers of motor vehicles. I am stating these facts at the outset because they do not appear on the record, but Mr. Gambhirwala has, very fairly, assisted the Court by taking necessary instructions and making the statements just recorded by me, so as to avoid the case having to be sent back for the purpose of formal evidence being taken to prove these facts.

2. At about 11-30 a. m., on the 13th of March 1968, a beggar-boy aged about 8, was crossing Rafi Ahmed Kidwai Road from West to East. He had already gone across 3 of the 4 lanes of the road and had come upto the reservation track between the 3rd and 4th lanes, the 4th lane being the one adjoining the eastern foot-path. At that time, the motor lorry driven by the accused came along the 4th lane proceeding in a north to south direction and knocked down the boy just as he began to cross that lane and had walked about 3 paces from the reservation track. The facts stated by me till now are in the nature of admitted facts. Though in the written statement filed by the accused in the trial Court, he has tried to make out that the deceased boy might have dashed against the rear wheel of his lorry, that could not be a correct statement, having regard to the evidence in the case. In my opinion, however, even accepting in toto the evidence of the two eye-witnesses Kasturi Satayya Lingayya and Yasminkhan Yasinkhan, the former of whom has lodged the First Information Report in this case, the prosecution has failed to prove that the death of the unfortunate boy was due to any rashness or negligence on the part of the accused. Three facts are relied upon by the State for that purpose as having been proved by the evidence of the two eye-witnesses as well as the panchnama (exhibit "B") and the evidence of Sub-Inspector Garud, and they are these:

(1) the two eye-witnesses Kasturi Satayya Lingayya as well as Yasminkhan Yasinkhan have stated that the lorry was being driven by the accused at the time of the incident "in a fast speed."

(2) those two witnesses state that the accused did not blow the horn; and

(3) the motor lorry did not stop immediately, but stopped about 100 or 150 feet away from the spot where the boy was knocked down.

These facts are relied upon by Mr. Gambhirwala as showing that the accused was driving the motor lorry in a rash and negligent manner. I must,

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Judicial Analysis

1970 Supreme(Bom) 41

IN THE HIGH COURT OF BOMBAYJ.R.Vimadalal, J.Appellants: Tukaram Sitaram GoreVs.Respondent: StateCriminal Appeal No. 131 of 1969 Decided On: 27.02.1970Counsels: For Appellant/Petitioner/Plaintiff: S.R. Bontal and V. Bontal, Advs.For Respondents/Defendant: V.T. Gambhirwala, Asst. Govt. Pleader

In running-down cases, the prosecution must produce evidence to establish rash or negligent driving of the motor vehicle by the accused. Not blowing the horn in a silence zone does not amount to negligence.

Judicial Analysis

IN THE HIGH COURT OF BOMBAY
J.R.Vimadalal, J.
Appellants: Tukaram Sitaram Gore
Vs.
Respondent: State
Criminal Appeal No. 131 of 1969 Decided On: 27.02.1970
Counsels:
For Appellant/Petitioner/Plaintiff: S.R. Bontal and V. Bontal, Advs.
For Respondents/Defendant: V.T. Gambhirwala, Asst. Govt. Pleader