JUDGMENT -The accused in this case was convicted under s. 304A and s. 337 of the Indian Penal Code and sentenced to pay a tine of Rs. 2,000 and Rs.200 in default to sutfer rigorous imprisonment for six months and two months on each of these counts respectively. As it was felt that the sentence was inadequate, the case was directed to be placed before the Court dealing with criminal matters when a notice of enhancement was issued by Palekar J. 2. On February 15, 1964, the accused was driving his motor car on the Marine Drive, now known as Netaji Subhash Road, from North to South. At about 5. 30 p. m. that day Kunda the deceased, who was aged about twenty -one years and her younger sister, Vidya, aged about ten were crossing, it is said, the pedestrian crossing near B Road, Churchgate, at which the accuseds car knocked down Kunda and Vidya. As a result of this Kunda died and Vidya. received some injuries. 3. There is a pedestrian crossing situated at the junction of B Road and Netaji Subhash Road. There is a Bus Stop at the northern side of B Road corner, and Natraj Hotel is at the southern corner of that road. The pedestrian crossing was indicated by two broken transverse lines opposite the Bus Stop and two transverse broken lines opposite the Natraj Hotel on the southern side. There is a board "Pedestrian Crossing" on the northern side near where the pedestrian crossing begins and similar board is displayed on the southern side of the second set of transverse broken lines. 4. The story as given by Vidya is that they had gone to University Club House situated at B Road as there was some function. They were a bit early and as there was some time for the function to start, they decided to go for a walk at the sea wall. They were . crossing the road between the northern side of transverse lines when they were knocked down by the accused just about the time that they were near the hedge. According to her, the car was proceeding at a fast pace. The accused was driving the car. She did not hear the sound of a horn and she did not remember now if she heard the sound of the application of brakes. According to her, the car was proceeding at a fast pace. The accused was driving the car. She did not hear the sound of a horn and she did not remember now if she heard the sound of the application of brakes. In cross -examination her story was that before stepping on to the crossing, they looked and saw that there were no vehicles near but there was only one car at a long distance away from them approaching them from the right side. She could not say its position on the road. A suggestion was made to her whether on seeing the cars they ran. This suggestion was denied. She also denied that they dashed a.gainst the car while running. 5. In connection with this incident two witnesses were examined, one Rupsingh Sundersingh and another Vishram Vithoo, prosecution witnesses Nos. 2 and 3. Vishram Vithoo has not been accepted by the learned trial Magistrate as a reliable witness as he was serving in the University of Bombay where the father of the deceased was employed, and his presence at the scene appeared to be doubtful. Rupsingh, the learned Magistrate observes, was an independent witness.He is a professional driver and is employed at Churchgate. At the time of the incident he came out of the 0 Road which is to the north of B Road, similarly joining the Netaji Subhash Road as does B Roa.d. He entered from this road Netaji Subhash Read and he was on the left side in the third row. There was one car on his right and beyond that on the further right was the car of the accused. These three cars formed one line but they were at a distance from one another. According to him, the car of the accused was proceeding at a fast pace of near about forty miles per hour. The accussed applied the brakes the sound of which he heard but the car knocked down the two girls. The car halted after about five to seven feet near the hedge. In cross -examination he said that he had approached the entrance to B Road when the accident occurred. He did not stop his car as he had to go to Congress House a conduct displayed usually in such cases. The car halted after about five to seven feet near the hedge. In cross -examination he said that he had approached the entrance to B Road when the accident occurred. He did not stop his car as he had to go to Congress House a conduct displayed usually in such cases. He further asserted in answer to Court question that the girls were knocked down on the pedestrian crossing opposite the Bus Stop. 6. The accused in his written statement and in his oral statement before the learned Magistrate said that, he was driving his car at a speed of twenty to twenty -five miles per hour when the girls were knocked down, that the girls came running from the front of the cars on his left hand and then directly into the path of his car. He applied his brakes. At the time of the incident the girls were in between the space between the two sets of broken lines and not in the northern set of transverse lines. He applied the brakes hard and they made a screaching sound. He applied the brakes after he had crossed over the northern set of transverse lines. The tyre mark because of the application of the brakes started from the north of northern set of lines and ended within the sets. Some broken pieces of glass were behind his car. It may be mentioned that the car stopped between the two sets of the transverse lines. He examined his sister who was in the car as a defence witness. 7.Mr. Jethmalani has exercised his privilege of challenging the conviction. 8. Mr. Jethmalani contended that witness Rupsingh cannot be regarded as an independent witness but must be a got -up witness inasmuch as the incident occurred on February 15, 1964, while his statement came to be recorded on March 2, 1964, after about seventeen days. No doubt, the statement was recorded late but, on the other hand, it cannot be regarded as the fault of the police that his statement came to be recordellate. There is usua11y apathy of people to be involved in criminal cases even as witnesses and the police must have some difficulty in tracing the witness. In my view the learned Magistrate is right in regarding him as an independent witness . 9. Mr. Jethmalani contended that an attempt has been made to shift the point of impact. There is usua11y apathy of people to be involved in criminal cases even as witnesses and the police must have some difficulty in tracing the witness. In my view the learned Magistrate is right in regarding him as an independent witness . 9. Mr. Jethmalani contended that an attempt has been made to shift the point of impact. For this purpose he relies upon the statement of Kunda which was recorded on the next day, i.e. February 16, 1964, where she has stated that she was crossing the road from East to West in front of Natraj Hotel and she did not remember whether she was crossing through the pedestrian crossing. But then it is clear from the evidence of the medical witneses that she was in shock and naturally, therefore, her notions must have been hazy. The fact that the marks of the brakes started from a point to the north of the northern set of the two transverse lines and stopped in the middle of those lines must necessarily show that the point of impact was at a place somewhere between the northern set of lines. The accused, finding that already an impact had taken place may have released the brakes and thereafter the car came to rest. It may also be that when she refers to the Natraj Hotel, she intended to refer to the only well -known point of identification and not exactly the southern set of transverse lines. In fact, the broken glasses of the lamps were lying near about the northern set of lines. The evidence of the police officer who has deposed to what he actually saw when he went to the scene of offence clearly shows that these two girls were knocked down only within the northern set of lines. 10. In connection with the evidence of the police officer regarding what he saw when he visited the scene of offence, Mr. Jethmalani made a grievance that he has practically tried to prove all the facts stated in the panchnama without examining the panchas which he says ought not to be permitted. The learned Magistrate was not prepared to rule out his evidence nor am I prepared to do so merely on this ground. The evidence shows that the two panchas and one eye -witness who was examined by the police officer almost immediately ha.ve not been traced. The learned Magistrate was not prepared to rule out his evidence nor am I prepared to do so merely on this ground. The evidence shows that the two panchas and one eye -witness who was examined by the police officer almost immediately ha.ve not been traced. There is no reason why a police officer should not be able to depose to what he actually saw at the scene of offence immediately on his going there. His evidence coincides practically with the statements made by the accused himself. Having regard to these facts and having regard to the further fact that there is nothing taken out from the cross -examination of Vidya in connection with the actual site of the incident and its manner of happening, I have no doubt that the incident occurred in the northern set of transverse lines as deposed to by her and by the independent witness Rupsingh. 11. Mr. Jethmalani contended that even assuming that Rupsingh was driving his own car as stated by him, it is wrong to suppose that he would be in a position to speak about the speed at which the accused was driving his car. It is not possible to accept the suggestion that a man who actually drives the car would not be able to judge the speed of another car which is going almost parallel to him. Though the witness has been cross -examined, nothing substantial has been taken out to show that his estimate of the speed is very far wrong. Even assuming that his estimate of the speed of the car of the accused at forty miles cannot be exact, he cannot be said to be wrong in his estimate. The learned Magistrate has estimated the speed at which the accused was driving to be at 48 miles per hour. Mr. Jethmalani has made a grievance that the learned Magistrate was wrong in estimating the speed by adding the length of skid marks and the distance between the point where the tyre mark ended and the one where the car had halted from the table furnished by rule No. 147 framed under the Motor Vehicles Rules. To some extent there is some justification in the grievance. That would be correct if the oar had stopped with a continuous application of the brakes. But apparently that is not so. To some extent there is some justification in the grievance. That would be correct if the oar had stopped with a continuous application of the brakes. But apparently that is not so. It may be that after the impact the accused released the brakes and again reapplied them in which oase there must be some time during which the oar rolled on its own due to its momentum. Be that as it may, it seems to me that the accused must be driving at about thirty -five miles or more though probably not forty -eight miles per hour. 12. The question in all such oases is whether the accused was going at a reasonable speed and whether he was not sufficiently circumspect in the driving. In order to establish a charge of negligence under s. 304A of the Penal Code, it must be shown that the accident was the direct cause of the negligence or rashness of the accused. English Courts require a far higher standard of proof of negligence or rashness in a criminal prosecution as the offence in England is that of manslaughter if death is caused. The same standard cannot obtain in respect of the offense under 88 .304A and 337 of the Penal Code though no doubt the guilt must be proved beyond reasonable doubt. (See Vishwanath VishnuV. The King1 and Rustom Sheriar lraniV. The State of Maharashtral). 13. There is a distinction between rashness and negligence. When one does an act with utter indifference to the consequences of which the doer may be conscious and which he hopes may not take place, one is said to be rash, while criminal negligence is neglect to take that precaution which a reasonable and prudent person is expected to take under the circumstances obtaining in a given case. In order infer whether or not there is criminal rashness or negligence on the part of the accused, all relevant facts must be considered. 14. At one time it was suggested by Mr. Jethmalani that the pedestrian crossing was intended as a restriction for the pedestrians and not for a motor driver meaning thereby that a pedestrian must cross a road only at that point and at no other point and only when there was no car in sight. However, he ultimately gave it up. Mr. Jethmalani that the pedestrian crossing was intended as a restriction for the pedestrians and not for a motor driver meaning thereby that a pedestrian must cross a road only at that point and at no other point and only when there was no car in sight. However, he ultimately gave it up. Mr. Chitale supplied me the regulations framed by the Commissioner of Police under the Bombay Police Act which define respective duties of the pedestrian and the driver of the car at these crossings. Mr. Jethmalani is right in saying that these rules were not even referred to in the trial Court. I must also confess that I myself did not know that such rules existed. When the case was first argued before me, even Mr. Chitale was not aware of them. Be that as it may, these regulations have been made under a statute and they have to be obeyed. These are published in Maharashtra Government Gazette, Part I, dated September 12, 1963, at page 13163. Rule 4 is as follows: "4. Pedestrian crossings. -(A) Pedestrian crossings shall be denoted by means of transverse broken lines. (B) Prohibitions in regard to pedestrian crossing. ( i) No driver of a vehicle shall have precedence over a pedestrian who is actually on the carriageway at such crossing. The driver or rider shall stop before reaching the crossing till such pedestrian has crossed the carriageway provided that there is no policeman controlling traffic at or near such crossing or no signal is installed. ( ii) No driver of a vehicle while approaching a road intersection where for the time being traffic is controlled by a policeman or by signalling device, shall proceed till the pedestrians who were on the carriageway before he received the signal to proceed, have crossed safely to the kerb. (iii) No driver of any vehicle shall cause such vehicle or any part thereof to stop upon any crossing unless either: - . (a) he is prevented from proceeding by circumtances beyond his control; or (b) it is necessary for him to stop in order to avoid accident. (iv) No foot passenger shall remain upon any crossing longer than is necessary for the purpose of passing from one aide of the street to the other with reasonable despatch. (v) No pedestrian shall cross any street except at the demarcated pedestrian crossings where they exist. (iv) No foot passenger shall remain upon any crossing longer than is necessary for the purpose of passing from one aide of the street to the other with reasonable despatch. (v) No pedestrian shall cross any street except at the demarcated pedestrian crossings where they exist. Pedestrians shall obey all reasonable directions given by the Police at these crossings. (vi) Prohibition of walking on driveway. -No person shall walk on the driveway of a street where footpaths exist." 15. In law, a clear duty is imposed on the driver of a motor vehicle to allow the pedestrian to cross the road. Having regard to c1. (v) of the Regulation which imposes a restriction on the pedestrian, the least that one can say is that the driver of a vehicle approaching a pedestrian crossing must keep a look out to see if any pedestrian is trying to cross the road at that point. Even if one assumes that these rules may not be known to all motor drivers, which they are bound to know, even so, the ordinary prudent man would approach ,a pedestrian crossing in such a way that he should be able to stop the car when it reaches it if necessary. In other words he would not continue the normally high speed when he is nearing a crossing. Mr.Jethmalani referred me to London Passenger Transport Board V. U pson3 where English Regulations came to be considered. We have a different set of regulations and the case could not be very relevant .. But some of the general observations are useful. Lord porter at p. 162 says: " … if the driver could and ought to have seen the plaintiff hurrying towards.the crossing before she reached the taxi -cab and to have anticipated that she was about to or might hasten across the crossing and did not do so, undoubtedly he would be guilty of negligence at common law." At p. 176 Lord du Parcq referred to the following observations of Lord Dunedin with approval in Fardon V. Harcourt -Rivington:4 " ... If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions." "Lord Morton of Henryton said ( p. 181 ): " ... To my mind, the failure of the driver to keep a look -out on the near -side pavement. coupled with his failure either to slow down or to sound his horn, afford ample evidence to support a finding of negligence at common law." Itseems to me that the principles involved in these statements are applicable in the present case. These observations suggest that a person who is driving a motor car owes a duty to the members of the public to keep a look -out on the road and more so when approaching a pedestrian crossing where he would normally expect a pedestrian to cross the road. The reasoning in this case .also suggests that regard must be paid to the habits of the public. 16. Mr. Jethmalani contended that in any event as there were two other cars to the left of the accused, his vision was obstructed. But it is wrong ,to say that he could not have seen the girls crossing the road. It is not his case that he was behind any of the cars travelling on his left because he says that he was not overtaking any of the cars. Rupsing says they were in a line. Now, if that is so, when the width of the road which the girls had to cross was about 12.8 meters Le. at least about forty feet if not more, it cannot be pretended that he did not notice them. If the girls were walking at ordinary pace of four miles per hour then if the accused were travelling even at thirty miles per hour he would be at a distance of about eighty meters when the girls entered the crossing from the kerb. If he had been watchful he would have seen the girls entering the road from a distance of about eighty meters. 17. The day was a Saturday, it was 5.30 P. M. and the accused was nearing a pedestrian crossing. The boards notifying the same could be seen from quite a distance. If he had been watchful he would have seen the girls entering the road from a distance of about eighty meters. 17. The day was a Saturday, it was 5.30 P. M. and the accused was nearing a pedestrian crossing. The boards notifying the same could be seen from quite a distance. The accused was, therefore, bound to havehis car under such control that he could stop if necessary at the crossing. If he had been on the look -out he could, even from a distance of about eighty meters of , the crossing, have seen the girls entering the road between the two lines. It was too late when he applied the brakes. If he had seen them and still continued at the same speed at which he was going, he was too rash. Though Mr. Jethmalani has not referred to the evidence of Padma (D. W. 1), the sister of the accused.1,have read the evidence. She does not carry his case any further.: On the contrary she admits that the "girls did not run. They walked against the Mudguard". Having regard to all the circumstances I have no doubt that the accident was the result of negligence and rashness on the part of the accused . 18. Adik, who took over on the second occasion, relied upon the decision off leicester V. Pearson5 where the Court was construing the provisions of english regulations. The circumstances under which the case arose were as follows: "The lighting in the neighbourhood of the crossing was poor, it was raining,and the road surface was in poor condition. At about 5.30 p. m. a woman, pushing an empty perambulator. and accompanied by her child, aged two, started to cross the pedestrain crossing from the, east side. That side of the road was flanked by trees which cast shadows on the road. On the west side, to which the pedestrian was crossing, light showed through the windows of shops. While the pedestrian was within the limits, of the crossing, the defendant, driving a motor -car at a reasonable and proper speed in the prevailing circumstances, approached the crossing from the south. The defendant did not see the pedestrian till she was on the crown of the road although there was no physical obstruction which prevented him from seeing either the woman or the crossing. The defendant did not see the pedestrian till she was on the crown of the road although there was no physical obstruction which prevented him from seeing either the woman or the crossing. When the defendant saw her he was seven or eight yards from the crossing. He applied his brakes and the car skidded and collided with the perambulator, thereby causing the child to be knocked over." Devlin J. observed that it would be quite unreasonable to suppose that an absolute prohibition or an absolute obligation, would be intended by saying to a driver: "You shall let so -and -so go first," or, "You shall accord so.and -so precedence." Assuming that I would be justified in importing such meaning into out regulations, even so, having regard to the manner in which the accused was driving at the time and place and on the day in question without, the disabilities in that case, I must agree with the finding made by the learned Magistrate that the accident occurred as the accused was negligent and rash in driving his car, even if the above regulations are disregarded and it is impossible to sustain the contention of Mr. Jethmalani that the conviction was erroneous. 19. The next question is about the sentence. The learned Magistrate has observed that Kunda and Vidya themselves contributed in a measure to the accident. In other words, he finds contributory negligence on the part of these two girls. I do not see how the learned Magistrate could find contributory negligence on their part. He does not even refer to the evidence of Vidya whose evidence appears to be straightforward. She denied that on seeing the cars they ran. Padma (D. W. 1) also says so. There is no Substance in the suggestion that there was contributory negligence, on their part. It is not the law and it cannot be the law that unless there was no car on the road no pedestrian is to Gross the road even at a pedestrian crossing since the condition can rarely be satisfied. In view of what I have stated above, once the reason for imposing only a . sentence of fine, which according to the learned Magiistrate, was the contributory negligence on the part of the girls disappear the sentence of only fine is highly inadequate even if the fine might otherwise appear comparatively to be heavier. Mr. In view of what I have stated above, once the reason for imposing only a . sentence of fine, which according to the learned Magiistrate, was the contributory negligence on the part of the girls disappear the sentence of only fine is highly inadequate even if the fine might otherwise appear comparatively to be heavier. Mr. Jethmalani has referred me to Emperor V. Khan -Mohamed6 and urged that merely because death is caused. sentence of imprisonment need not be imposed. Sentence is a matter of discretion and the limits cannot be fixed by judicial precedents for all time in the future. True, the discretion is of the trial Court and the High Court would not ordinarily interfere with the exeroise thereof. Yet having regard to what I have stated above and the faot that the sentenoe must be such as to serve as a deterrent to others, as also what Mr. Adik has said about the accused it is necessary to impose substantive sentence of imprisonment. 20. Having regard to all the circumstances of the case, I ,direct that the accused do suffer simple imprisonment for a period of six months for the offence uinder s. 304A of the Penal Code in addition to the sentences in respect of both the offenses imposed by the learned trial Magistrate. Warrant to issue.