The burden of proving negligence and rashness in a motor vehicle accident rests on the prosecution, and the evidence must establish these elements beyond reasonable doubt.

ORDER :

1. By this criminal revision, applicant has challenged the legality and propriety of the judgment dated 22.11.2018 passed by Additional Sessions Judge, Kondagaon, District Kondagaon, Chhattisgarh (hereinafter referred to as “First Appellate Court”) in Criminal Appeal No.34 of 2018 affirming the judgment dated 09.04.2018 passed by Chief Judicial Magistrate, Narayanpur, District Narayanpur, Chhattisgarh (hereinafter referred to as “Trial Court”) in Criminal Case No.29 of 2016 whereby the Trial Court has convicted and sentenced the applicant/accused as under :-

2. Briefly stated facts of the case, are that, on 08.01.2016, at about 7.00 PM, applicant/ accused Ajay Kumar Yadav was driving the Mahindra Marshal vehicle bearing registration No.CG-02-2093 (hereinafter referred to as “offending vehicle” rashly and negligently on public way in front of Mahamaya Petrol Pump at village Singoditrai, Narayanpur, Chhattisgarh, as a result of which, Ramlal Sethiya (PW-5) got injured and Kamleshwar Barbasia died. Thereafter, First Information Report (Ex.P/1) was lodged bearing Crime No.3 of 2016; merg intimation (Ex.P/2) was registered at Police Station Narayanpur, on the basis of which, offending vehicle and documents were seized vide Ex.P/3; spot map was prepared vide Ex.P/5; a damaged motorcycle was seized vide Ex.P/6; panchnama of dead body of Kamleshwar was conducted and dead body was sent for postmortem; mechanic examination of offending vehicle was conducted and prepared its report vide Ex.P/8. Statements of witnesses were taken and accused was arrested. After completion of investigation, charge-sheet was filed.

3. The prosecution has examined injured Ramlal Sethiya (PW-5), Pradeep Kumar Vaidya (PW-1), witness of spot map as well as reporter, Lalit Thakur (PW-3), Yashwant (PW-8), Satish Kumar Majumdar (PW-2), Gaya Prasad Nag (PW-4), Pawan Kumar (PW-7), seizure witness, Ravinder Singh (PW-9), vehicle mechanic, who has examined the offending vehicle and given report vide Ex.P/8, Dr. K.K. Sori (PW-6), who has conducted the postmortem of deceased Kamleshwar and given its report vide Ex.P/7 as well as Asharam Uike (PW-10), Inspector.

4. On the basis of statements of aforementioned witnesses, it has been concluded by the Trial Court that offending vehicle was being driven by applicant/accused and accident took place on the public way in front of Mahamaya Petrol Pump, as a result of which, Ramlal Sethiya (PW-5) got injured and Kamleshwar Barbasia died. These facts were not challenged during the argument.

5. Learned counsel for the applicant would submit that accident occurred due to sudden bursting of rear tyre of offending vehicle, over the driver had no control. He would further submit that to prove the crime under Sections 279, 337, 304A of Indian Penal Code, 1860 (hereinafter referred to as “IPC”), it is necessary to prove the rashness or negligence of driver and burden of proof is upon the prosecution. The prosecution has been unable to discharge its burden of proof as witnesses have only stated that offending vehicle was moving at a high speed. He would also submit that it has not been made clear what was the speed of offending vehicle, which does not prove its negligence and thus, prosecution has failed to prove the negligence and rashness on the part of accused, who has driving the