Sir John Edge, C.J and Banerji, J.:— Bhutan Tiwari was a lessee under the Government of the Gai Ghat ferry on the river Ganges. As lessee of the ferry he had the exclusive right to carry passengers backwards and forwards across the river at that place. By his lease he was bound to maintain for the purpose of the ferry eight boats in efficient condition. It is proved that the boats which he employed at the ferry were not his own boats, but that he allowed [473] different mallahs to act as ferrymen, using for the purpose their own boats, the lessee receiving a proportion of the toll paid to the mallahs. It is also proved that on certain days when pilgrims visited a neighbouring shrine, and when those days were not that days, be and the mallahs allowed pilgrims to be ferried over free of toll. The 16th of March 1893 was one of such days, and on the morning of that day a number of pilgrims, over fifty, and, as we believe, under eighty, embarked on one of the ferry boats. The boat was in charge of one of the mallahs. The day was fine. The river was low. There were no waves: and we find on the evidence that there was no wind. When the boat got about half-way across it sank, and twenty-five of the people in it were drowned. Bhutan was found guilty by the District Magistrate of the offence under s. 304A of the Indian Penal Code. The Sessions Judge of Ghazipur set aside that conviction and acquitted Bhutan. The Government has appealed.
Before considering the legal bearings of the case we shall express the conclusions to which we have come on the evidence. The boats at the ferry were as a rule inspected every month by a Government official. They were, however, frequently changed; the consequence being that a boat in use in March might not have been inspected previously by any Government official. In November 1892 it was found on inspection that, four of the boats at this ferry required repairing. At the inspection in December 1892 it was found that three boats in use at this ferry were old and unsafe. Those three boats were unsafe by reason of the bottom and side planks being weak and the boats being leaky. The boat which sank in March 1893 was not recovered, and consequently neither of the inspecting officers could say that he had seen that particular boat. So far as the evidence goes, it shows this, that at two inspections within five months of the 16th of March 1893, old and infirm boats, and boats which needed repairs and were leaking, were found at the ferry in use there.
For the defendant witnesses were called whose evidence was that the boat which sank was a new boat but no witnesses were called to show when or where the boat was built. The defendant's [474] witnesses say that the boat was capable of carrying with safety from eighty to one hundred and twenty-five persons. We find as a fact that there was nothing in the weather or in the condition of the river which would have caused an ordinarily safe boat to founder on that occasion. It is proved conclusively that the boat did not strike against anything in its passage through the river. It is proved that, after the boat had got some way across the river, water was seen coming on through the straw at the bottom of the boat, apparently rising from the bottom of the boat; that water continued to rise quickly, and that it was that water getting into the boat from the bottom which caused the boat to sink on an even keel. Under these circumstances the only conclusion which we can come to is that the boat sank by reason of its being rotten, or being otherwise in a bad state of repair, and not being safe for the purposes of a ferry boat.
Now comes the question of what legal liability in the criminal law attaches to the defendant. The mere fact that he had covenanted in his lease to provide efficient boats for use at the ferry would not make him criminally responsible if they turned out not to be efficient. His duty, in our opinion, stands upon a much higher basis than this. He was the only person who had the concession of the right to use ferry boats at this particular ferry. The consequence is that the public who were entitled to cross at the ferry were bound to use his boats. It does not appear to us to be any defence that the boats which were used were boats belonging to different mallahs and not his own property. It was his duty as lessee of the ferry to see that the boats which he placed at the ferry were reasonably safe boats for the carriage of passengers. In his own statement he said, “I do not allow boats to ply which I consider unfit.” He also said that the mallahs brought the particular boat which was lost from Bengal; that be never had the boat beached to examine it, and that whilst it was with him it was never repaired. He said that he had examined the boat and felt to see if it was safe. It is obvious from the evidence and from Bhutan's statement that for the purposes of the ferry the boats must be [475] considered as his boats. Although they had not been purchased by him, they were procured by him, the owner getting for his own services one-quarter of the profits of the boat and handing over three-quarters to Bhutan. Bhutan's own statement shows, if the question was material, that he was aware that it was his duty not to allow any unsafe boat to ply at the ferry. The conclusion which we have come to is that he allowed this boat in question to be put on at the ferry for work and to be continued there, although the boat was in an unsafe condition. Whether he had examined the boat or not we cannot say, but the boat could not have sunk under the circumstances unless it was in an unsafe condition—and the fact is beyond doubt that he allowed the particular boat to be used for the purposes of the ferry. The fact that the passengers in the boat on the particular day did not pay any toll is in our opinion immaterial in this case on the question of criminal liability. Shortly put, it was the duty of Bhutan to the public not to allow any boat to ply at the ferry which was not in a reasonably safe condition as a ferry boat. He did allow the boat which sank to be used at the ferry for ferrying purposes. That boat was in an unsafe condition, and by reason of Bhutan's allowing a boat which was in an unsafe condition to ply at the ferry the deaths of the persons who were drowned on the 16th of March 1894 were caused. In our opinion this was not merely a negligent omission—it was a negligent act in putting a boat in the ferry which was in an unsafe condition.
We set aside the acquittal of the Sessions Judge, and convict Bhutan of the offence punishable under s. 304A of the Indian Penal Code, and sentence him therefor to three months' rigorous imprisonment and a fine of Rs. 500, or in default to three months' further rigorous imprisonment.