IMPORTANT POINT
Causing death by rash and negligent driving – A case of rash and negligent act simplicitor is distinct from a case of driving in an inebriated condition which is a despicable aggravated offence warranting stricter and harsher punishment.

JUDGMENT :

Rastogi, J.

1. Leave granted.

2. Heard Mr. Pallav Mongia, learned counsel for the appellant and Ms. Ruchira Gupta, learned counsel for the respondents.

3. The appellant has assailed the judgment and order dated 7th December, 2020 upholding his conviction for offences under Sections 279, 304A of Indian Penal Code(IPC) and under Section 3 read with Section 181 of the Motor Vehicles Act, 1988 (MV Act) and sentencing him with simple imprisonment of two months and fine of Rs. 1,000/for the offence under Section 279 IPC; simple imprisonment for two years and fine of Rs. 10,000/for the offence under Section 304A IPC; and to pay fine of Rs. 500/or in default to undergo simple imprisonment of 10 days for the offence under Section 3 read with Section 181 of the MV Act. Indisputedly, the appellant has undergone more than 7 months of substantive sentence.

4. The case of the prosecution is that the appellant on 13th February, 2013 at 1745 hrs while proceeding from Tilamol side to Zambaulim, which is a public way, drove his Wagon-R bearing registration no. GA09A6921 in a rash and negligent manner and committed a culpable homicide not amounting to murder, by causing the death of Manohar Shetkar. It was also the case of prosecution that the accused was driving the offending vehicle rashly and negligently without holding an effective driving licence issued by the competent authority and, therefore, committed an offence under Sections 279, 304(II) IPC and Sections 3, 181 and 185 of the MV Act.

5. The prosecution in all examined seven witnesses including the investigating officer. Thereafter, the statement of the appellant was recorded under Section 313 of Code of Criminal Procedure.

Despite the opportunity, the accused neither examined himself nor led any evidence in support of his defence.

6. The learned trial Judge, by its judgment and order dated 30th September, 2014 held him guilty and convicted and sentenced him for the aforestated offences. The appeal preferred by the appellant came to be dismissed by the High Court of Bombay at Goa by judgment impugned dated 7th December, 2020.

7. Learned counsel for the appellant has tried to persuade this Court that the evidence on record does not justify any conviction or sentencing and further submits that the ocular evidence is not at all reliable and the documentary evidence to a great extent supports the defence raised by the appellant.

8. Learned counsel further submits that there is some unreliable evidence suggesting that the offending vehicle was driven at “high speed” but such evidence is not at all sufficient to establish either rashness or negligence, which are essential ingredients to have a conviction under Sections 279 or 304A of IPC and based on such vague testimony, the conviction as recorded is quite unsustainable.

9. Learned counsel further submits that as a matter of record, the appellant was holding a learner’s licence to drive the motor vehicle on the alleged date of incident dated 13th February, 2013 and was accompanied by his wife(PW 5) who was sitting beside him and was the holder of a permanent licence to drive the motor vehicle and submits that the evidence was, therefore, required to be accepted in its totality. Learned counsel submits that wife of the appellant has deposed that the scooter was overtaking a parked truck and collided head-on with the Wagon-R driven by the appellant but such evidence was unduly rejected by the learned Sessions Court and further submits that the appellant only has to probabalise his defence and there is no requirement of establishing such defence beyond a reasonable doubt. In the given circumstances, the conviction which has been upheld by the High Court in the impugned judgment is not sustainable and deserves to be interfered by this Court.

10. Per contra, learned counsel for the respondent-State has supported the order of conviction passed by the High Court. However, the learned counsel did not seriously dispute the submissions of the learned