Judgment:

Dr. Arijit Pasayat, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge of the Karnataka High Court allowing the Revision Petition filed by the respondent. The respondent faced trial for alleged commission of offence punishable under Sections 279, 338, 304-A of the Indian Penal Code, 1860 (in short the ‘IPC) by learned IIIrd Additional Sessions Judge, Mangalore. For the offence punishable under Section 338 IPC the respondent was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/- with default stipulation. For the offence punishable under Section 304-A IPC he was sentenced to rigorous imprisonment for one year and to pay a fine of Rs.5,000/- with default stipulation. The appeal was dismissed by learned IIIrd Additional Sessions Judge, D.K. Mangalore.

2. Background facts in a nutshell are as follows:

The respondent had been driving the bus on Ullal-Hejamadi route on 3.12.1995 at about 10.30 a.m. A tempo was coming from the opposite direction. Both the vehicles rubbed through resulting in the right hand side portion of the bus hitting the right hand side portion of the tempo, as a result of which a boy sitting at that hind portion of the tempo died and one passenger sustained grievous injuries. It was in respect of this accident that the respondent came to be prosecuted and convicted. The primary stand before the High Court was that the offences were such that the accused should not be required to undergo imprisonment.

Accordingly, taking note of Section 71 IPC, High Court held that for the offence under Section 338 IPC the accused was to pay a fine of Rs.1,000/- with default stipulation and for the offence under Section 304-A the accused was to pay a fine of Rs.5,000/- with default stipulation and out of the total amount of Rs.6,000/- a sum of Rs.5,000/- was to be paid to the father of the deceased boy.

3. Learned counsel for the appellant-State submitted that the High Court has not indicated any reason as to why this was not a fit case where custodial sentence was not to be imposed. The High Court found that the accused was rightly convicted for the offence punishable under Sections 279, 338 and 304-A IPC. After having so observed without any basis or reason the custodial sentence was waived and fines were imposed. It was also noted that no separate sentence was necessary in respect of offence under Section 279 IPC. It is submitted that the sentences should be commensurate with the gravity of the offence.

4. Learned counsel for the respondent on the other hand submitted that the occurrence took place long back and, therefore, taking the overall view waived the custodial sentence and imposed fines.

5. In the instant case, 16 years old boy lost his life because of the rash and negligent acts of the respondent.

6. Section 304A speaks of causing death by negligence. This section applies to rash and negligence acts and does not apply to cases where death has been voluntarily caused. This section obviously does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death. It only applies to cases in which without any such intention or knowledge death is caused by what is described as a rash and negligent act. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not. Lord Atkin in Andrews v. Director of Public Prosecutions (1937) AC 576 at p.583 = 2 All E.R. 552) observed as under:

"Simple lack of care such as will constitut