The main legal point established in the judgment is the determination of rash and negligent driving under Section 304-A of the IPC and the consideration of post-accident actions in the reduction of sentence.

JUDGMENT

Avinash G. Gharote, J. - Heard.

2. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel for the rival parties.

3. The application challenges the judgment of conviction passed by the learned Judicial Magistrate First Class, Gadchiroli, dated 09.04.2019, convicting the applicant for an offence under Section 279 of the Indian Penal Code (hereinafter to be referred as the 'IPC' for short) for a period of three months with fine of Rs. 1,000/-, (Rs. One Thousand Only), in default 10 days SI and sentence for a period of one year for the offence under Section 304-A of the IPC with fine of Rs. 10,000/-(Rs. Ten Thousand Only), in default SI of 60 days and so also fine of Rs. 1,000/-(Rs. One Thousand Only), under Section 184 of the Motor Vehicles Act, in default 10 days SI and a compensation of Rs. 50,000/-, (Rs. Fifty Thousand Only), the sentences to run concurrently. This judgment, has been confirmed in Appeal by the learned Sessions Judge, Gadchiroli, by his judgment dated 22.09.2020.

4. Mr. Tahaliyani, learned counsel for the applicant submits, that there was no criminal negligence on part of the applicant, which is indicated from the evidence of PW-2. He submits, that the entire prosecution was flawed, inasmuch as, there is nothing on record to indicate what was the speed of the vehicle, width of the road, traffic density, location of the speed breaker, surrounding situation, the position about the light, weather and visibility and the existence of pot holes, all of which are necessary to be brought on record by the prosecution, in order to sustain a conviction of the applicant. Relying upon Chamman Lal Vs. The State, AIR 1954 ALL 186, it is submitted, that the negligence under Section 304-A of the IPC, must be one which must amount to recklessness or utter indifference to consequences and not merely negligence of tort. Reliance is also placed upon Abdul Subhan Vs. State, 2007 CRI.L.J., 1089, to contend that the expression high speed, is an unclear expression. Reliance is also placed upon A.P. Raju Vs. State of Orissa, 1995 Supp (2) SCC 385, to contend, that the benefit of Section 360 of the Code of Criminal Procedure (hereinafter to be referred as the 'CrPC' for short) or Section 4 of the Probation of Offenders Act, 1958, ought to have been granted to the applicant. He further points out, that it is not a case, as if the applicant after the incident had run away from the spot but he has taken the victim to the hospital for medical aid, where unfortunately the victim passed away. He therefore submits, that this is an ameliorating circumstance, which would call for the reduction of sentence imposed. He further submits, that the applicant, has already being behind bars for a period from 20.09.2020 to 19.10.2020, which would indicate, that the applicant, has already suffered and may be taken into consideration for the reduction in sentence.

5. Mr. Chutke, learned APP for the non-applicant/State, invites my attention to the evidence of PW-2, who was the eye witness, to contend, that the demise of the victim, is directly attributable, to the action of the applicant, in driving the vehicle in rash and negligent manner, from the middle of the road, whereas, every user of the road, by law is required to use his side of the road. He therefore submits, that there cannot be any contributory negligence on part of the victim in the matter of the accident, and therefore, the position has been correctly considered by the Court's below.

6. The incident has happened on 08.11.2016, and has been witnessed by PW-2, who in his evidence has stated, that he was present on the spot alongwith his wife and has seen the accident caused by the applicant driving a Bolero Jeep, at very high speed, which had dashed against the two wheeler driven by the victim. He further states, that the vehicle was driven from the center of the road. This testimony, has not been shaken in cross-examination. This testimony, has been believed