Orissa High Court
Prafulla Kumar Rout vs State Of Orissa on 21 June, 1994
Equivalent citations: 1995CRILJ1277
Author: A. Pasayat
Bench: A. Pasayat
ORDER A. Pasayat, J.
1. On the accusation of rash and negligent driving which resulted in the death of a school going minor girl Bhanumati Pande (hereinafter referred to as the 'deceased'), Prafulla Kumar Rout (hereinafter referred to as the 'accused') faced trial. He was found guilty, convicted and sentenced.
2. Accusations, in short, are as follows :
On 7-l-1986 at about 4 p.m. while students of Khantapade Girls' High School were returning home after closer of school, a bus named "Madhabika" bearing registration No. SRS 3821 which was being driven by the accused came at a high speed, and dashed against the deceased, ran over her and caused her instantaneous death at the spot of accident. Accused who was driving the vehicle left the bus at the spot and fled away, Revenue Supervisor of Sore Tahesil (P.W. 13) who was returning from Khantapade R.I.'s Office lodged F.I.R. at Khantapade Police Station, investigation was undertaken and after completion of investigation, chargesheet was submitted.
3. Seventeen witnesses were examined to further the prosecution case. Out of them P. Ws. 1, 3, 5, 6, 7, 8, 12, 13 and 14 claimed to be the eyewitnesses, P.Ws, 5, 6 and 7, school mates of the deceased, were returning with her. P.Ws. 4 and 9 were post occurrence witnesses. P. W. 16 was the M.V.I. who went to the spot and examined the offending vehicle. Accused admitted the accident, but attributed negligence to the deceased. On evaluation of evidence, and placing reliance on the version of eye-witnesses, learned Judicial Magistrate, First Class, Bolasore found the accused guilty for an offence punishable under Section 279/304A of the Indian Penal Code, 1860 (in short, 'IPC') and sentenced him to undergo rigorous imprisonment for three months for offence punishable under Section 279, IPC, and rigorous imprisonment for six months and to pay a fine of Rs. 1000/- for the offence punishable under Section 304A, IPC, in default to ndergo simple imprisonment for two months. He concluded that the accused was driving the vehicle at a high speed in a rash and negligent manner. In appeal, learned Sessions Judge confirmed the conviction and sentence.
4. Learned counsel for petitioner submitted that high speed is a relative term. In the absence of any definite material regarding the speed at which vehicle was being driven, no rashness or negligence can be attributed to the petitioner. It is further submitted that when a victim runs towards a vehicle unexpectedly, and is injured by impact, it cannot be construed to be a rash or negligent act of the driver. According to him, the deceased ran towards the vehicle suddenly and dashed against it whereby the accident was caused. Great emphasis is laid on the evidence of some of the eyewitnesses who have stated that the driver was blowing horn. Alternatively, it is submitted that sentence as awarded is harsh and reduction is warranted. Learned counsel for State on the other hand, submitted that it is common knowledge that motor vehicles are being driven in a rash and negligent manner, and large number of fatalities on account of such accident cannot be lost sight of. It is stressed that unshaken evidence of the eye-witnesses clearly establish guilt of the accused.
5. Section 279, IPC deals with rashness and negligent driving of a vehicle or riding on a public way in a rash and negligent manner as to endanger human life or likely to cause hurt or injury to any person. In order to constitute an offence punishable under Section 279, IPC, it must be established that (a) the accused was driving the vehicle on a public way, (b) such driving was done in a rash and negligent manner to endanger human life or likely to cause hurt or injury to any other person. For the purpose of Section 279, rash and negligence must be described as criminal rashness or criminal negligence. It must be more than mere carelessness or . error of judgment.
6. For an offence punishable under Section 304A, IPC point to be established is that the act of accused was responsible for resulting in the death and such act of the accused was rash and negligent, although it did not amount to culpable homicide. Rash or negligent act must be the direct or proximate cause of the death. The section deals with homicide by negligence. To establish either of Section 279 or 304A, IPC, rash and negligent act has to be established. But only distinction is that under Section 279 rash and negligent act relates to the manner of driving or riding on a public way; while offence under section 304A extends to any rash or negligent act following short of culpable homicide. As indicated above, rashness or negligence to be established must be more than mere error of judgment. Distinction between rashness and negligence is that negligence connotes want of proper care, while rashness conveys of idea of reckless doing of an act without consideration of any consequences. A rash act is primarily an over-hasty act and is thus opposed to a deliberate act, but it also includes an act which, though it may be said to be deliberate, is yet done without due deliberation and caution, Austin on Jurisprudence 4th Edition, at page 444 has drawn distinction between negligence and rashness which, though closely allied "are broadly distinguished by differences." In cases of negligence, the party performs not an act to which he is obliged. He breaks a positive duty. Negligence is basically breach of a duty because of omission to do some thing which a reasonable man guided by these considerations which ordinarily regulate conduct of human affairs to mould, or doing same thing which a prudent and reasonable man would not do. "Negligence" is not an affirmative word. It is a negative word. It is absence of such care, skill diligence as it was the duty of the person to bring to the performance of the work which he is said not to have performed. There is distinction between rash act and negligent act. Criminal negligence is the great and culpable neglect or failure to exercise that reasonable or proper, care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all circumstances out of which charge has arisen was imperative duty of the accused persons to have adopted. Negligence is an omission to do some thing which a reasonable man guided upon these considerations which ordinarily regulate conduct of human affairs would do or doing some thing which a prudent a id reasonable man would not do. A culpable rashness is acting with consciousness that mischievous and illegal consequences may follow, but with the hope that will not, and often with the belief that the actor has taken sufficient precaution to prevent their happening. Imputability arises from acting despite the consciousness. Culpable negligence is acting without consciousness that illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised caution incumbent upon him and if he had he would have had consciousness. Imputability arises from the neglect of civic duly of circumstances. As between rashness and negligence, the former is a graver offence.
7. High speed is a relative term. A vehicle which is driven in a congested road even at a speed of 30 km. may constitute high speed, but driving a vehicle at a speed higher than 30 K.Ms. in an open road may not be considered driving at high speed. It would depend upon nature and situation of road, concentration of pedestrians and vehicular traffic on it and many such other relevant factors. In the case at hand, vehicle which was being driven on the National Highway, caused accident in front of a school. It is expected for a driver to be cautious and slow down the vehicle, when nearby an educational institution. Unshaken evidence of eye-witnesses shows that the vehicle was driven at a high speed though no exact speed was indicated by them. A responsible Revenue Officer (P.W. 13) is supposed to know what is high speed compared to normal speed. On consideration of evidence, courts below have held that the vehicle was being driven at very high speed. Added to the above, re-appraisal of evidence while exercising revisional power is uncalled for, unless conclusion of the courts below are perverse, unreasonable or of such nature that no reasonable person can reach such conclusion. That does not appear to be the case here. The courts below have rightly found the accused guilty.
8. Coming to the sentence, it is seen that the occurrence took place about eight years back, after such long lapse of time, it would not be proper to send the petitioner to serve out balance custodial sentence. Same is restricted to the period undergone. However, considering the nature of offence, fine is enhanced to Rs. 2000/-. In case fine amount is not paid within three months from today, it shall carry default sentence of three months rigorous imprisonment: In case fine is realised, the same shall be paid to Muralidhar Pande, father of the deceased and in case he is not alive, to deceased's mother. In case neither of them is alive, same shall be paid to Pradipta Kumar Gouda, brother of the deceased, examined as P.W. 1. In case none of them are not alive, the amount shall go to the State exchequer.
The Criminal Revision is disposed of.