A person cannot be held guilty of rash and negligent driving under Sec. 304(A) of the Indian Penal Code if the victim suddenly crosses the road without taking note of the approaching vehicle.

M.Y.Eqbal, J.

1. This is revision application is directed against the judgment dated 19-6-1991 passed by the learned 3rd Additional. Sessions Judge; Hazaribagh, in Crl. Appeal No. 26 of 1986, whereby the learned Sessions Judge confirmed the judgment and order of conviction and sentence passed against the petitioner by the Judicial Magistrate, 1st Class, Chatra, in G.R. Case No. 366 of 1983 convicting the petitioner under Secs. 279 and 304(A) of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for a period of two years.

2. The petitioner was prosecuted under Secs. 279 and 304(A) of the Indian Penal Code for having driving the bus bearing Registration No. B.R.L. 4188 rashly and negligently and at a very high speed, causing death of the informants son on 13-7-1983 at Biglad-Simaria Road, Hazaribagh. The informant lodged a first information report at Tandwa Police Station alleging therein that on the date of occurrence he alongwith his deceased son and his wife had gone to Biglad Temple, which is situated at Tandwa -Simaria Road for the purpose of boarding a bus. While they were there, the aforesaid bus which was being driven rashly and negligently came at a very high speed without blowing the horn and dashed his son-Rajeshwar Sao, who after sustaining injuries died at the spot. It was alleged that the bus in question was being driven rashly and negligently at the time of occurrence.

3. The learned Judicial Magistrate tried the case and recorded the evidence of the prosecution witnesses and after hearing the parties came to a finding that the death of the son of the informant was due to rash and negligent driving of the bus by the petitioner. Accordingly, the learned Magistrate found the petitioner guilty and convicted him under Secs. 279 and 304 (A) of the Indian Penal Code and sentenced him in the manner indicated above. The petitioner aggrieved by this judgment and order of conviction and sentence preferred an appeal before the learned Sessions Judge, Hazaribagh, which was registered as Crl. Appeal No. 26 of 1986. The learned Sessions Judge has confirmed the judgment and order of the learned Judicial Magistrate and held that the eye witnesses to the occurrence categorically stated that the appellant-petitioner was driving the bus rashly and negligently at a very high speed and in doing so he dashed the bus against the deceased as a result, of which the son of the informant died instantaneously.

4. Mr. B.K. Dubey, learned counsel for the petitioner, assailed the judgment and order passed by both the courts below as being illegal and contrary to the facts and evidence on record. Learned counsel submitted that from reading the evidence of the prosecution witnesses it will appear that no case is made out which warrants conviction of the petitioner under Secs. 279 and 304(A) of the Indian Penal Code. Learned counsel further submitted that non-examination of the Motor Vehicle Inspector and the doctor is fatal to the prosecution case. Learned counsel has also submitted that driving of a vehicle at a very high speed does not itself constitute an offence, but other factors are necessary to be considered for convicting a person under Sec. 304(A) of the Indian Penal Code. Learned counsel submitted that both the courts below have completely failed to consider the evidence of witnesses which goes to show that the deceased all of a sudden came on the middle of the road. Learned counsel relied upon the decision of the Apex Court in Mrs. Shakila Khader V/s. Nauser Gama. On the other hand, Mr. LN. Gupta, learned APP appearing for the State, submitted that the conviction of the accused-petitioner has been passed on concurrent finding of facts by both the courts below and therefore, this Court should not interfere in exercise of revisional jurisdiction. Learned counsel submitted that all the eyewitnesses to the occurrence have been examined and proved the guilt of the petitioner.

5. Before appreciating the rival c