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1. This is a revision against the judgment dated 5-7-1993 of Additional Sessions Judge, New Delhi in Cr. Appeal No. 282/91 affirming the conviction of the petitioner under Sections 279/304-A I.P.C. of which he had been convicted by the Metropolitan Magistrate, New Delhi and sentenced in consequence to rigorous imprisonment for one year as well as fine of Rs. 1000/-, the sentence in default of payment of fine being rigorous imprisonment for three months.

2. In brief the prosecution case was to the effect that on 25-2-86 at about 8.30 a.m. the petitioner was driving bus No. DEP 6107 in a rash and negligent manner and while so driving, he tried to overtake a vehicle from wrong side and since he could not find any space for overtaking, he applied the brakes at full speed and because of the jerk, the deceased Badal Chandra Dass, who was travelling in the bus, fell down as a result whereof he was run over by the rear wheel of the bus. On hearing the alarm raised by passengers, the petitioner stopped the bus. The deceased Badal Chandra Dass, succumbed to the injuries on the spot. On these facts, the petitioner was charge-sheeted for the offences punishable under Sections 279/304-A, I.P.C.

3. The accused pleaded not guilty to the charges levelled against him. He has examined Sukhanlal (DW 1) and Surjit Singh (DW 2) in support of his defense that his act of driving the bus was not the proximate cause of the death of the deceased. Both the Trial Court as well as the appellate Court on consideration of the evidence came to the conclusion that it had been established that the accused was driving the bus its a rash and negligent manner and was responsible for the accident. On these fact the accused was convicted u/S. 279/304-A, I.P.C. and it is the correctness of that conviction which is being assailed in the present revision.

4. The main contentions of the learned counsel for petitioner are that there is not an iota of legal evidence on record to prove that on the day in question the petitioner was driving the bus in a rash or negligent manner and further that his act of driving the bus was the proximate cause of the death of the deceased. According to the learned counsel, not only none of the grounds for the petitioner's conviction u/Ss. 279/304-A, I.P.C. given by the Trial Court as well as by the appellate Court are in any way sustainable to maintain the order of conviction but the reasoning adopted is too peripheral, lopsided, mechanical and without any honest effort to find out the real truth.

5. The facts found out by the Courts below on the basis of the testimony of sole eyewitness of the alleged incident, namely, Vasant More (PW 6) are that :-

(i) at the relevant time the accused was driving the offending bus at an excessive speed, (ii) the deceased fell down from the said bus and came under the rear wheel of the bus as a result whereof he sustained fatal injuries (iii) the accused had no knowledge about the alleged incident till the time the alarm was raised by passengers of the bus and (iv) even after the alarm was raised, the accused could stop the bus at a distance of 30/40 paces from the spot. On a perusal of the impugned judgment, I am of the opinion that both the Courts below have failed to judge the story of the prosecution with a view to find out whether the alleged rash or negligent act of the accused was the proximate cause of the death of the deceased Badal Chandra Dass or in other words there was direct nexus between the death of the deceased and the alleged rash or negligent act of the accused. Both the Courts below have held that the accused was guilty of criminal rashness because in their view he was driving the bus at an excessive speed. I am constrained to observe that both the Courts below are blissfully ignorant about the concept of culpable 'rashness' or 'negligence. Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand is the gross 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 the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Thus, the main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed of the offending vehicle but deliberate disregard to the obligation of its driver to drive with due care and attention and taking a risk indifference as to the harmful consequences resulting from it. In a case of this nature, the test is whether the prosecution has proved that :- (i) the accused was driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to the property; (ii) in driving the vehicle in that manner the accused did so without having given any thought to the possibility of there being any such risk or, having recognized that there was some risk involved, had nonetheless gone on to take it; and (iii) the rash or negligent act of the accused was the proximate cause of the death of the deceased.