GAJANAN BHARESAGARIA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner faced trial on the accusation of having committed offences punishable under Secs 279 and 304 -A of the Indian Penal Code, 1860 (in short, 'IPC'). The accusations against him were that on account of his reckless driving on a public way, a young boy namely, Manoj Kumar Jain (hereinafter referred to as the 'deceased') lost his life. The alleged incident took place on 7 -10 -1982 at about 7 a. m. in the morning. Petitioner was driving a truck bearing registration No. GRR 625. The truck was taken to a petrol pump to purchase diesel, and while coming out of the petrol pump near a curve it ran over the deceased who was riding a bi -cycle.

(2.) SEVEN witnesses were examined to further the prosecution case. Out of them, PWs 1, 2, 3 and 5 are stated to be the eye witnesses to the occurrence. The accused pleaded his innocence and took a positive stand that he was not driving the vehicle at the relevant time. However, placing reliance on the evidence of the witnesses, learned Judicial Magistrate First Class, Titilagarh found the accused guilty and convicted and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/ -, in defeault to undergo simple imprisonment for three months in respect of offence Under Section 304 -A, IPC, and rigorous imprisonment for three months and to pay a fine of Rs. 250/ -, in default to undergo simple imprisonment for fifteen days for the offence punishable Under Section 279, IPC. Both the sentences were directed to run concurrently. It was concluded that though there was no definite material about the speed at which the vehicle was being driven, yet the fact that the accident occurred and that too near a curve indicated rashness and/or negligence. In other words, it was presumed that there was rashness and/or negligence. The conviction and sentence as awarded by learned Judicial Magistrate First Class, were confirmed in appeal by learned Addl. Sessions Judge, Titilagarh.

(3.) ON a perusal of evidence of the alleged eye witnesses i. e. PWs 1, 2, 3 and 5. one thing is clear that the petitioner was driving the vehicle but that by itself is not sufficient to attract culpability Under Sections 279 and 304 -A. IPC. The essential ingredients of Section 279 are two -feld : (i) Driving of a vehicle or riding must be on a public way. (ii) Such driving or riding must be so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person. A rash act is primarily an over -hasty act and is thus opposed to a deliberate act, but it also includes and act which, though it may be said to be deliberate, is yet done without due deliberation and caution, in rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. There is a distinction between a rash act and a neglient act. Negligence involves blame worthy heedlessness on the part of the accused which a normal prudent man exercising reasonable care and caught can ought to avoid, In the leading case of Midamarti Nagabhushanas in re : 1 Weir 324, Malloway. J. defined and distinguished culpable rashness and culpable negligence as follows. 'Culpable rashness is acting with the consciousness that the mischief and illegal consequences may follow, but with the hope that they will not and often with the belief that the actor has taken suffiicent precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution, incumbent upon him, and that if he had, he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection. It is manifest that personal injury consciously and intentionally caused, cannot fail within either of these categories which are wholly inapplicable to the case of an act or series of acts, themselves intended, which are the direct producers of death.' Provisions of Section 304 -A, apply to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. It only applies to such acts which are rash or negligent, and directly cause of which is death to another person. Provisions of Section 304 -A, are to be read along with those contained in Sections 335, 337 and 338, IPC. All these sactions are confined in their operation to acts done without any criminal intant, apart from rashness or negligence which is therefore, the essential ingredient. Rash or negligent act mentioned in Section 304 -A means act which is immediate result or cause of death and not to any act or omission which can, at the most, be said to be a remote cause of death. In order to find a person guilty Under Section 304 -A, IPC, rash or negligent act must be direct or proximate cause of death for conviction. Proof of rashness or negligence is essential. For an offence under this section, the degree of rashness or negligence must be higher than what is necessary to establish civil liability. The degree of rashness and negligence on the pan of the accused, required to be proved in criminal cases, should be of such a nature that an inference about the commission of a crime may safely be made against him. Simple lack of care, will not be enough. In Syed Akbar. v. State of Karnataka, AIR 1979 SC 1648, it was observed that where negligence is an essential ingredient of the offence, the negligence to be established must be culpable or gross, and not the negligence merely based upon an error of judgment. Criminality is never to be presumed, subject to statutory exceptions, and criminal negligence or rashness should not be presumed in such a case merely on the application of the maxim res ipso loquitor. In the case at hand, there is absolutely no material about the speed at which the vehicle was being driven. Speed itself is not a determinative factor, because the possibility of accident on a free road where a vehicle is driven at a higher speed is comparatively less than a vehicle driven at a lesser speed on a busy road. Yet speed certainly throws light on the question as to whether the vehicle was being driven in a rash or negligent manner, depending on the locality, density of crowd etc. Unfortunately, there is no material whatever brought an record by the prosecution on the rash and/or negligent aspect of driving of the vehicle. In that view of the matter, it would be unsafe to convict the accused. Accordingly, conviction and consequentially sentence are set aside, and the petitioner is acquitted. Bail -bonds of the petitioner be cancelled. Criminal Revision is allowed.