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4. An examination of the judgment of the learned Additional Sessions Judge as well as that of the learned Metropolitan Magistrate would clearly indicate that the petitioner has been convicted primarily on the testimony of PW 3 head constable Munim Dutt. According to Mr. Sufian Siddiqui, the learned Counsel for the petitioner, there is nothing in the testimony of PW 3 which conclusively indicates that the petitioner was driving the vehicle in a rash or negligent manner. He submitted that the only allegation is that the petitioner was driving the vehicle at a high speed. According to Mr. Siddiqui, "high speed" is an expression which is relative and subjective. He submitted that merely because a vehicle was being driven at a high-speed does not mean that the driver was driving rashly or negligently. He also submitted that there is no evidence with regard to the status of the traffic lights at the T-junction. The investigating officer has not been produced as a witness. The site plan which was purportedly drawn up by the investigating officer has not been exhibited. There is no evidence with regard to tyre skid marks. No photographs were taken. There is also no evidence as to whether the deceased Gajendra Singh who was riding on the motorcycle was wearing a helmet or not. He also indicated that by examining the evidence of PW 3, even the location of the point of impact cannot be ascertained and that there is a great deal of ambiguity in his testimony. The learned Counsel for the petitioner then submitted that the petitioner is not shying away from the fact that a collision had occurred. He is also not denying the fact that the petitioner was driving the Tata tempo. He is also not denying the fact that the diseased Gajendra Singh lost his life as a result of the collision. Another circumstance pointed out by the learned Counsel for the petitioner is that the petitioner did not attempt to flee from the place of incident and stayed there. According to Mr. Siddiqui this is not a case of rash or negligent driving or the result of a rash or negligent act; it is a case of an accident which just happened to have taken place.

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.

The aforesaid observations of the Supreme Court make it more than clear that a mere allegation of high-speed would not tantamount to rashness or negligence. In the present case also, I find that apart from the allegation that the truck was being driven at a very high-speed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent. In any event there is no description or approximation of what was the speed at which the truck was being driven. The expression "high-speed" could range from 30 km per hour to over 100 km per hour. It is not even known as to what the speed limit on Mathura Road was and whether the petitioner was exceeding that speed limit. Therefore, in the absence of material facts it cannot be said, merely because there is an allegation that the petitioner was driving the truck at a high-speed, that the petitioner is guilty of a rash or negligent act. Clearly the petitioner cannot be convicted on the sole testimony of PW 3 which itself suffers from various ambiguities.

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: --