The central legal point established in the judgment is the requirement for the prosecution to prove rash or negligent driving beyond reasonable doubt to establish the offences under Section 279/304(A) IPC.

H.N. Sarma, J.

1. This revision petition is directed against the judgment and order passed in Criminal Appeal No. 20/97 dated 15.09.98 by the learned Sessions Judge, Goalpara by which the learned Sessions Judge has dismissed the said appeal filed by the Appellant/Petitioner against the judgment and order passed in G.R. Case No. 742/96 dated 06.10.97 by the learned Chief Judicial Magistrate, Goalpara convicting the accused Petitioner under Section 279/304(A) IPC and sentencing him to undergo rigorous imprisonment for 1(one) month with fine of Rs.200/-, in default to suffer rigorous imprisonment for further 10 (ten) days for the offence under Section 279 IPC and to undergo rigorous imprisonment for 6 (six) months with fine of Rs.1000/-, in default to suffer rigorous imprisonment for 2(two) months for the offence under Section 304(A) IPC directing to run both the sentences concurrently.

2. I have heard Mr. J.M. Choudhury, learned Senior Counsel appearing for the Petitioner and Mr. P.C. Gayan, learned Addl. Public Prosecutor, Assam, for the State.

3. The prosecution case, which originated on the basis of the FIR lodged by one Mojibor Rahman Mandal with the Officer-in-charge Goalpara Police Station on 14.09.96, inter alia, is that on that day at about 4.30 P.M. one Ashadur Rahman @ Mintu son of Prof. Mojibur Rahman of Hadayatpur, Goalpara town came out from his house and arrived Durgamandir Bazar. While he went south to north by the left side of the road, an oil tanker bearing registration No. AMA-399 came from Agia side towards Goalpara at a very high speed and due to rash and negligent driving of the vehicle by the driver, dashed the said Ashadur Rahman in front of shop of one Bith Karan Sarma by the side of the road and caused his death. Hence, the informant prayed for necessary police investigation into the occurrence. The informant also gave description of the deceased, which shows that the deceased was a boy of 18/19 years of age. On receipt of the aforesaid FIR the police registered a case under Section 279/304(A) IPC and the G.R. Case No. 742/96 was registered. Upon appearance of the accused before the learned trial Court the substance of the acquisitions under Section 279/304(A)IPC were explained to him, to which he pleaded not guilty and claimed to be tried. During the course of trial as many as 6 witnesses including the Investigating Officer and the Medical Officer, who carried out the post mortem examination of the deceased and also the mechanic who examined the vehicle after the accident, were examined. The defence examined none and took a plea of total denial. At the end of the trial upon consideration of the materials and evidence on record, the learned Chief Judicial Magistrate, Goalpara vide judgment and order dated passed in G.R. Case No. 742/96 convicted the Petitioner under Section 279/304(A) IPC and sentenced him in the manner aforesaid. Against the aforesaid judgment and order, the Petitioner filed Criminal Appeal No. 20/97 before the learned Sessions Judge, Goalpara, which was dismissed on upholding the conviction and sentence passed by the learned trial Court. Hence, the present revision petition.

4. Mr. J.M. Choudhury, learned Senior Counsel appearing for the Petitioner has submitted that in the instant case the prosecution having failed to prove the vital ingredients of rash or negligent driving, the impugned conviction and sentence is bad in law and is liable to be set aside. Learned Counsel has also submitted that there is no iota of evidence regarding rashness in driving and the prosecution having failed to prove the culpable negligence of the Petitioner while causing the accident, the impugned conviction and sentence is not sustainable.

5. Refuting to the aforesaid submissions, Mr. P.C. Gayan, learned Addl. Public Prosecutor has submitted that the findings of rash or negligent driving being a finding of fact and both the Courts below having concurrently arrived at such a finding, the same is not lia