The petitioner in this case has been convicted by the Chief Presidency Magistrate of offences under section 338, Indian Penal Code, and section 116 of the Motor Vehicles Act and sentenced to three months’ rigorous imprisonment for the offences under section 338, Indian Penal Code and one month rigorous imprisonment under section 116 of the Motor Vehicles Act, the sentences to run concurrently.

The case relates to an accident which happened at about 11 a.m., on 22nd October, 1947, and the facts are these. On the day of occurrence, a tram car proceeding towards Mylapore stopped at the tram stop opposite the Wellington cinema. A bus, M.S.C. No. 8751 was also going towards Mylapore. The) petitioner was the driver of that bus. A head constable who was travelling in the tram was trying to get down through the front left passage of the tram. As he was attempting to alight keeping his legs on the footboard, the rear right side body of the accused’s bus dashed against the foot board of the tram and as a result, the constable was injured in the leg. He was taken to the hospital and it was found that four bones in the left leg had been fractured. Ten days later he died on account of Pneumonia and weak heart. According to the medical evidence, the injuries would not have been fatal but for the other two complications that the constable had. The injuries were therefore grievous in nature. The accident, as stated already, happened while the tram was stationary at the Wellington stop. It is in evidence that paint from the rear right side of the body, of the bus was scraped to an extent of about one foot long and four inches broad and some paint from the bus was also found sticking to the left front side of the tram. At the time of the accident some hand carts laden with charcoal were going on the left side of the road in the same direction as the tram and the bus. The evidence is not quite clear at what distance from the tram these hand carts were going. But there is evidence that there was a line of cars parked on the left side of the road. On the evidence and according to the admission of the accused, the Chief Presidency Magistrate finds that:

“there was only just enough space for his bus to pass” and that “he should not have taken; the risk of elbowing his way along the interspace. He did so at his risk, and if such a course should result in an accident, which really happened, he must answer for it.”

In cases of accidents as pointed out by Mukherji, J., in Smith v. Emperor1:

“The difficulty is to keep out of one’s mind the prejudice that inevitably creeps in by reason of the fact that lives have been lost and the responsibility for the same ultimately rests with none else but the accused. This prejudice is bound more or less to reflect on the question of the culpability of the accused and give rise to false issues which tend to cloud judicial vision.”

The task no doubt of keeping out the prejudice is a difficult one but it has got to be performed. Keeping this observation of Mukherji, J., in mind, it has to be seen how far the petitioner in this case is guilty of the offences of which he has been convicted.

As stated already, the finding of the Chief Presidency Magistrate is that:

“there was only just enough space for his bus to pass”

and that:/p>

“he should not have taken the risk of elbowing his way along the interspace.”

The question is whether the act of the accused in the circumstances falls within the scope of the provisions of section 116 of the Motor Vehicles Act and section 338, Indian Penal Code. I will first deal with section 116, Motor Vehicles Act, as in my view, if the petitioner is not guilty of the offence under that section, he would not be guilty of the offence under section 338, Indian Penal Code.

Section 116 of the Motor Vehicles Act runs as follows:

“Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition