Death caused due to rash and negligent act of motor driver.

This is a Revision Case sought to be preferred against the conviction and sentences by the learned Sub-Divisional Magistrate, Cheyyar, in C.C. No. 183 of 1957 which convictions were confirmed but the sentences reduced by the learned Sessions Judge of North Arcot at Vellore, in C.A. No. 98 of 1957.

The case for the prosecution is that the accused, motor driver, drove the bus M.D.J. 1122 on 28th August, 1957 at 10-30 a.m. in Pernamallur village causing thereby the death of two children and injuries to two other persons, P.Ws. 3 and 5.

The locality in which this occurrence happened may be briefly sketched. In the village of Pernamallur there is a road running from north to south called Bazaar Street. There is a street called Vanniar Street, branching off west from the Bazaar Street. There is a shop of one Jeevendra Nainar in the Bazaar Street in its eastern row, just north of the junction. There is a soda shop of one Perumal Chetti in the eastern end of the southern row of Vanniar Street. The evidence in this case shows that the bus was coming in the Bazaar Street from north to south and it swerved to the right at the junction and hit against the portia tree just in the front of the soda shop of Perumal Chetti and proceeded further and dashed against the roof and the pillars of the varandah in front of the soda shop with the result that the wall collapsed.

How this incident took place was in this wise. In front of the shop of Perumal Chetti, P.W.3, one of the injured and surviving was making images of Sri Ganesa, that being Vinayaka Chathurthi Day. A group of children were around him witnessing the making of these images. P.W.5, the other injured man, was sitting on the pial of the shop of Perumal Chetti. Then at that juncture viz., at about 10-30 a.m. the bus ran over two children who were around P.W.3 and who subsequently died of the injuries caused to them. P.Ws.3 and 5 were also injured. It is unnecessary to describe the injuries in detail because there is no disputes that as a result of this tragic occurrence injuries were caused to P.Ws.3 and 5 and to the two dead children.

The case for the accused was that he was driving the bus on the date of occurrence and that P.W. 3 was sitting in front of the shop of Perumal Chetti, that the bus dashed against the deceased children and P.Ws. 3 and 5. He further stated that the hand-brake was not effective and the foot-brake could be effective only if it was pushed twice, that the bus sustained damages and that the children died due to the fall of the wall and that he did not run over the children.

The accused examined D.W. 1 whose evidence was that his children ran across the north-side road towards west, that the driver of the bus whom he did not notice swerved the bus to the west and the bus dashed against a tree and a wall.

The learned Magistrate found that this darting of the child across the street spoken to by the accused in his statement under section 342, Criminal Procedure Code and which was sought to be buttressed by the evidence of the interested D.W. 1 was false and that even assuming that the evidence of D.W. 1 was acceptable, this darting across the road of a child on a Vinayaka Chathurthi Day in the Bazaar Street which legitimately can be expected, should have been foreseen and would have been seen and avoided by this accused by pulling up or slowing down and his not doing so would show that he was negligent for which proposition the learned Magistrate relied upon Russel on Crimes (1950 Ed.), page 641 and Gulamsaied v. State1 and Kanshi v. Emperor2. The last mentioned decision lays down that a person driving a car should always keep it on a state of control, sufficient to enable him to avoid running into any passenger, who may fail to step off the road, however annoying the dilatoriness of the foot-passenger may be to him. The learned Magistrate deduced further that inasmuch as the efficiency of the brakes was 62 per cent., if the accused had applied the brakes in time