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1. This revision petition has been filed by the petitioner being aggrieved by the order dated 7.2.2006 passed by the additional Sessions Judge whereby he confirmed the conviction and sentence awarded by the learned Metropolitan Magistrate under Sections 279 and 304-A IPC. The learned Metropolitan Magistrate had passed an order of conviction on 4.9.2005 convicting the petitioner for the offences punishable under Section 279 IPC and 304A IPC. By a separate order dated 17.9.2005, the learned Metropolitan Magistrate sentenced the petitioner to undergo rigorous imprisonment for three months and also imposed a fine of Rs 500 in respect of the offence under Section 279 IPC. In default of the payment of the fine amount the petitioner was required to undergo simple imprisonment for 15 days. Insofar as the offence under Section 304A IPC was concerned, the learned Metropolitan Magistrate sentenced the petitioner to rigorous imprisonment for one year and also imposed a fine of Rs 2500. In default of the payment of fine, the petitioner was required to undergo simple imprisonment for two months. Both the sentences of imprisonment were directed to run concurrently. In appeal, the learned additional Sessions Judge upheld the conviction as well as the sentence. Being aggrieved by the said order/judgment dated 7.2.2006 the petitioner has filed this revision petition.

2. The case for the prosecution is that on 23.10.1995, at an unknown time, on Mathura Road near the T-point junction with Sher Shah road, the petitioner was driving a vehicle bearing registration number HR 29C 9552 in a rash and negligent manner and while so driving hit against a motorcycle bearing registration number UMS 2937 and caused fatal injury to one Gajendra Singh.

3. To establish its case the prosecution examined 12 witnesses. However only one witness, that is PW 3, head constable Munim Dutt, is listed as an eyewitness. In this case it is not in dispute that the petitioner was driving the vehicle bearing registration number HR 29C 9552 which was a Tata 608 tempo (also described as a truck). It is also not in dispute that this vehicle and the motorcycle bearing registration number UMS 2937 had a collision. It is also not in dispute that, as a result of the collision, Gajendra Singh, who was riding the motorcycle, died. The entire question in this case is as to whether, on the evidence on record, the offences under Section 279/304A IPC are made out or not?

5. Mr. Siddiqui then the took me through the impugned judgment and submitted that the same is based on presumptions and assumptions and there is nothing on record which could lead to the conclusion that the petitioner was driving rashly or negligently. The learned Counsel for the petitioner then referred to the decision of the Supreme Court in the case of State of Karnataka v. Satish 1998 SCC (CRI) 1508. He referred to this decision of the Supreme Court for the purposes of submitting that driving at a high-speed by itself does not imply negligence or rashness. Negligence or rashness would have to be established as a fact. The learned Counsel for the petitioner then referred to the decision of a learned single judge of the Orissa High Court (Arijit Passayat J., as he then was) to indicate as to what are the necessary and essential ingredients of the offences under Section 279 and 304A IPC. In this decision also, the learned judge had observed that high-speed by itself is not indicative of a rash and/or negligent act on the part of the driver.

11. As observed in Badri Prasad (supra) the essential ingredients of Section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As regards the offence punishable under Section 304A IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. As observed in Badri Prasad (supra), to establish the offence either under Section 279 or Section 304A, the commission of a rash and negligent act has to be proved. The only distinction being that in Section 279, rash and negligent act relates to the manner of driving or riding on a public way while the offence under Section 304A extends to any rash and negligent act falling short of culpable homicide. As correctly observed by the learned judge, the rashness or negligence which needs to be established is something more than a mere error of judgment. There is also a distinction between rashness and negligence in that, rashness conveys the idea of doing a reckless act without considering any of its consequences whereas negligence connotes want of proper care. The case in Badri Prasad (supra) was one, where, akin to the facts of the present case, apart from a bare statement made by a witness that the vehicle was being driven at a high-speed, there was no attempt made to establish that there was any rash and/or negligent act on the part of the driver of the vehicle. In these circumstances the court observed: --