JUDGMENT

Cuming, J. - This is an appeal against an order of the learned Chief Presidency Magistrate, Mr. T.Y. Roxburgh, convicting the accused, one. H.W. Smith, u/s 304-A, I.P.C., and sentencing him to one month's simple imprisonment and a fine of Rs. 500.

2. The facts appear to be these:--The occurrence took place at about 10-30 or 11-30 p.m. on the night of the 12th May last.

3. The accused Smith lives in Howrah and had come into Calcutta driving his own ear, a Mors car No. 1990, with a friend, Mr. Williams. He got as far as the Mayo statue and was then coming from west to east. At the Mayo statue he determined to go home via the Red Road and, therefore, turned to the right and went along the Dufferin Road. About half-way up the road he ran over and killed two coolies who were sleeping on the road.

4. The case of the prosecution is that the road was under repairs and that there was a barrier right across the road to prevent people driving along the road and that the accused killed these two coolies by doing a rash and negligent act, to wit, driving his motor-car rashly or negligently from north to south along the Dufferin Road which was closed to traffic and barricaded and having red light across, the road being in various states of repair. The defence case is that there was no barrier across part of the road and that the accused entered the road by the open portion. He went over then to the proper side of the road. He did not see the coolies who were lying wrapt up in gamchas on the road, did not even know he had driven over them and knew nothing till he was stopped by the constable at the south end of the road by the Dufferin statue. His car is a very old and noisy one. It cannot travel at more than 10 miles an hour and he was not driving negligently or carelessly. The learned Magistrate found that at the time of the accident the barrier did not reach right up to the tram-line on the west of the road. The accused, he holds, must have heard one of the warnings he got; one being from the witness Ramzan that there were coolies sleeping on the road. That he must have heard the shouts after the accident and hence known he had gone over some one. Finally the learned Magistrate holds that the accused entered a road on which there were warning lights and that he was talking to the man at his side. This was itself negligence and that accused must have known from the lights that special caution was necessary and that had he driven with reasonable care the coolies would not have been killed. He finds that excessive speed has nothing to do with the case as the car cannot do more than 10 miles an hour.

5. First as to the facts--

6. Mr. Bagram contends that even if Ramzan did shout to the accused that there were men sleeping on the road it does not necessarily follow that the accused heard him and with this I agree. The coolies in the hut close by did not hear Ramzan. The accused was driving. The car was old and noisy and there is nothing improbable in the allegation of the accused that he did not hear anyone shouting that there were coolies sleeping on the road. The only person who shouted this information was Ramzan. Then there is the evidence of the constable at the north end of the road by the Mayo statue that he shouted to the accused that the road was under repairs. The evidence when considered would show that he must have been some forty yards from the accused. Again the accused may or may not have heard him, and if he did hear him may not have' realized what he said or even that he was shouting to him. Even if accused heard him and realized he must not go on the road because it was under repair, it does not affect the case as I shall afterwards show. The prosecution contends that accused must have known he had gone over these coolies and still drove on after doing so. It does not follow that because the accused felt a bump he must have known he had gone over anyone. This road was under repair and he may well have thought he had gone o