The main legal point established is the duty of a driver to exercise reasonable and proper care to avoid injury, and the court's discretion in awarding and enhancing the sentence based on the gravity of the offence.

1. The accused who is a driver of a stage carriage vehicle was found guilty of the offence under S.279 and 304A, IPC., by the District Magistrate of Ernakulam and sentenced to undergo simple imprisonment for three months under S.279 IPC and to simple imprisonment for six months under S.304A, IPC., the sentences to run concurrently. On appeal the conviction was confirmed but the learned Additional Sessions Judge reduced the sentence to one of a fine of Rs. 150/-. This court issued notice to the accused to show cause why the sentence should not be enhanced. Counsel for the accused has challenged the conviction as he is entitled to do under Clause.6 to S.449, Crl. P.C.

2. The facts of the case briefly stated are as follows:-On 29-1-60 at about 2.45 P.M. the accused was driving a bus KLK.1130 towards the Ernakulam bus stand. The vehicle came along the Shanmughom road, turned east to join the main Broadway road. At the junction of this road there is a traffic post. Vehicles should normally go round the traffic post before entering into the Broadway road. The evidence of Pws.1, 5 and 6 is that instead of rounding the traffic post, the bus was driven along the western side of the post at a high speed and without sounding the horn and that the accused lost control and rat) over the deceased who was sitting by the side of the road about 2 feet to the south of the main gate of the Chief justice's Bunglow causing his instantaneous death. The bus further dashed against a cyclist, Pw. 5 with the result that he was thrown into the gutter and the bus got on to the gutter and struck against the compound wall.

3. Pw.1 is a person who was sitting on the same side of the road 50 feet from where the deceased was sitting. Pw. 6 the other eye witness is a soda vendor hawking soda on the same side of the road about 100 feet to the south. The learned District Magistrate has discussed the evidence of these witnesses and has chosen to believe them. On a re-appraisal of the evidence the learned Additional Sessions Judge also concurred in the finding of the trial Magistrate. The learned counsel has taken me through the relevant evidence and on a close scrutiny of the evidence in the light of the criticisms made, I do not find any ground to differ from the conclusions arrived at by the courts below. Pws.1, 5 and 6 are thoroughly disinterested witnesses whose evidence could with safety be accepted. Within fifteen minutes of the occurrence Pw.1 filed the complaint Ext. P1 and it is fully in conformity with the evidence adduced in the case.

4. The case of the accused was that after proceeding from the Shanmugham road he was sounding his horn, that he went round the traffic post by the eastern end of the road and while he was proceeding towards the south the cyclist Pw. 5 came from the opposite direction through the centre of the road and to avoid the cyclist dashing against the vehicle he turned the bus towards the west, that unfortunately the cyclist also turned to the west and dashed against the bus and on account of this sudden swerving of the vehicle to save the cyclist, the bus ran over the hawker and caused his death.

5. The accused examined on his side two witnesses. Dw.1 is the Assistant Educational Officer who was a passenger in the bus. He deposed that the accused had rounded the traffic post, that the cyclist came from the opposite direction and therefore the accused swerved to the west and that the cyclist fell into the gutter and the bus went off the road. His evidence was rightly rejected by the courts below. He is a neighbour of the accused and was only trying to help him. I am not at all impressed with his evidence. He says he saw the cyclist coming and does not attempt to give any explanation as to why the accused went to the wrong side and did not swerve to his left. Equally unacceptable is the evidence of Dw. 2 the conductor who is highly interested in the accused. If their evidence is true that the accused had rounded the traffic