DAG BAHABUR CHETRI Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE petitioner has been found guilty Under Sections 279/304A of the Penal Code for having caused the death of Bikash Chandra Dey, aged about 6 1/2 years, at the relevant time. The accident which had resulted in the death had taken place on 26-12-75 at about 12.30 PM on the Moran-Naharkatiya road. The prosecution case is that the death had occurred due to rash or negligent driving of the vehicle No. ASK 8357 by the petitioner which knocked down the boy on the right side of the road in so far as the vehicle is concerned. The learned trial Court and on appeal the learned Sessions Judge have opined that death was the result of rash and negligent driving of the vehicle by the petitioner.

(2.) THE first submission advanced by Shri Gogoi is that the learned appellate Court below has failed to bear in mind the distinction between rashness and negligence-either of which would make a person criminally liable for his acts. He contends that absence of this difference is apparent from the impugned judgment by which the petitioner was held to have driven the vehicle both rashly and negligently. The final submission is that the circumstances under which the accident took place were not such for which it could be held that the petitioner was so much rash or negligent as to invite the wrath of any of the sections of law under which he was punished.

(3.) THE aforesaid definition of criminal rashness and negligence was given by Straight, J. in Empress of India v. Indu Beg, 1881 (3) All. 776 which had been adopted by the Supreme Court in Bhal Chandra v. State of Maharashtra . A reference to Sections 279 and 304A of the Penal Code would show that the Legislature was fully conscious of the difference in rashness and negligence that it has spoken about rashness or negligence not in conjunction but in disjunction. If attention is paid to the facts of the present case and to the two impugned judgments, it would be apparent what was being attributed to the petitioner was not a rash driving, but a negligent performance at the steering. This follows from the conclusion arrived at by the learned Sessions Judge that driving of the vehicle in high speed without necessary precaution or care was the immediate cause of the accident. No rashness can be read on these fact in the act of driving inasmuch as it cannot be stated that the petitioner was aware while driving the vehicle in "high speed" that he was taking any hazardous course while doing so. It is, however, submitted by the learned Public Prosecutor that driving a vehicle in high speed in the setting in which the accident had taken place would speak of criminal negligence. It is emphasised that the accident had taken place near a school and that too during tiffin time. It was incumbent on the part of the driver, submits the learned Public Prosecutor that in these circumstances he must have taken extra care to see that no injury is caused to tiny-tots.