Sudden and unforeseeable mechanical breakdown of a vehicle, not related to any rashness or negligence on the part of the driver, does not constitute an offence under Section 304-A, I. P. C.

ORDER :- The petitioner has been convicted by the Fifth Presidency Magistrate, Egmore, Madras, for an offence under Sec. 304-A I. P. C. and Section 116 of the Motor Vehicles Act, and sentenced to R. I. for six months under Section 304-A, I. P. C. No separate sentence has been awarded under Section 116 of the Motor Vehicles Act. The case for the prosecution is that the petitioner on 15-4-1965 rashly or negligently drove his car MSP 6788 at about 9-30 A. M. on the Mount Road and knocked down one Dhandapani aged 13 years who was riding a cycle. The injuries sustained by the boy in the impact resulted in his death at about 9-45 a. m.

2. Certain basic facts which may be taken to be beyond controversy, may first be set out. The scene of accident is on the Mount Road in the locality known as Round Tana between two pedestrian crossings which according to P. W. 7, Reserve Sub Inspector attached to D.2 traffic station, is separated by a distance of about 125 ft. There is a slight turn of the road there. The cyclist was proceeding from south towards north at the extreme left side of the road. The motorist was also proceeding in the same direction. At about 50 ft. from the northern pedestrian crossing, the front left portion of the car hit the rear of the cycle and the cyclist was thrown off and he fell on the cement railings fixed to the edge of the pedestrian platform. The cycle also fell down and the car stopped after proceedings about 50 ft. just at the northern pedestrian crossing. P. W. 7 speaks to have witnessed the accident from a distance of 25 ft. In the car of the petitioner his two children were sitting by his side in front and it appears he was taking them to their school. It is seen from the record that the boy was immediately taken to the General Hospital and the Casualty Medical Officer, examined as P. W. 3 states that the boy was brought to the hospital by the owner of the car involved in the accident. The petitioner immediately returned back to the scene of accident the boy dying in 15 minutes. There is no doubt that the boy died of the accident. P. W. 4, who conducted the postmortem, states that the injuries found on the body of the boy could have been caused by his being knocked down by a car and violently thrown off on any hard surface. It is nobody's case that the car actually ran over the boy. The impact of the car had thrown the boy and the cycle on the cement railings.

3. The learned Magistrate, on an examination of the evidence, conclude's that the petitioner could have avoided the boy being knocked down by his car and that he had not exercised the care in driving his car which the circumstances and situation demanded of him. He would therefore hold him criminally liable for causing the death of the boy.

4. It will be convenient to set out the statement of the petitioner at this stage. This is what he states :

"After passing the pedestrian crossing in front of Chellarams in Mount Road (Southern pedestrian crossing) I applied the brakes. They did not act. They had suddenly failed. I had therefore to swerve and bring to a stop. I was driving only cautiously. On my right there were vehicles proceeding ahead coming along and behind my vehicle. I therefore swerved a little to the left and switched off the engine. After repeatedly applying the brakes the vehicles travelled a distance of a few feet and stopped on the western side of the road. Before coming to a dead stop it bumped against a cycle which was proceeding ahead and the cyclist and the cycle fell down."

5. In his statement, he denies driving the car at full speed and states that the accident was the result of sudden failure of the brakes. He says he tried his best to avoid hitting against the cycle which was proceeding ahead of him.

6. Among the eye witnesses to the accident, reference may be made to the evidence of P. W. 1 and P. W. 2, P. W. 1 was sitting in the shop of one Venugopal at about the place of the accident. He speaks to the boy proceeding on his cycle

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