IMPORTANT POINT
The conviction under Sections 279 and 304(A) IPC was overturned due to insufficient evidence of rash and negligent driving.

JUDGMENT :

Arun Dev Choudhury, J.

1. Heard Mr. NNB Choudhury, learned counsel for the petitioner. Also heard Mr. KK Das, learned Additional Public Prosecutor, Assam.

2. The present application is filed under Section 397/401 read with Section 482 Cr.P.C. assailing judgment and order dated 20.06.2011 passed by the learned Session Judge, Dhemaji, in Criminal Appeal No. 8(1)/2011 arising out of the judgment & order dated 25.01.2011 passed by the learned Judicial Magistrate, First Class, Dhemaji in GR case No. 317/2005 (DMJ) thereby convicting the petitioner under Section 279/304(A) IPC and sentencing him to undergo Simple Imprisonment for three (3) months under Section 279 IPC and also sentencing him to undergo Simple Imprisonment for one year under Section 304(A) of IPC. The aforesaid sentences were to run concurrently.

3. Mr. NNB Choudhury, learned counsel for the petitioner contends that both the learned courts below have committed error of law and both the decisions are perverse inasmuch as there is no iota of evidence to suggest either to the effect that the petitioner was driving the offending vehicle or that even if he is driving the vehicle, he was driving it in a rash and negligent manner except, that the vehicle was driven at a high speed. According to the learned counsel, nothing is discernible from any of the eye witnesses account to suggest any rash and negligent driving on the part of the petitioner and therefore, such judgments are liable to be interfered by this court in exercise of its revisional power otherwise same will result miscarriage of justice.

4. Per contra, Mr. KK Das, leaned Additional Public Prosecutor, Assam argues that from the evidence of the eye witnesses, it is clear that the offending vehicle was driven at a very high speed and the victim was in the right side of the road. Therefore, even though, there is no specific deposition as regards rash and negligent driving such factum itself establishes beyond any reasonable doubt that the petitioner was driving the vehicle in a rash and negligent manner and therefore, the learned court below have rightly passed the judgment and this is not a fit case to exercise this court’s revisional power.

5. I have given anxious consideration to the submissions advanced by the learned counsel for the parties. Also perused the material available on record including the statements/ depositions of the witnesses before the learned trial court.

6. The prosecution has projected PW1, PW3, PW5, PW6 and PW7 as eye witnesses to the incident. From their deposition what is discernible is that the accident took place at about 5.30/6.00 p.m. on 08.06.2005 at National Highway No. 52. The evidence of the eye witnesses further suggests that the vehicle was at a high speed. The evidence of PW1, the mother further suggests that her daughter was knocked by the vehicle at a point when she and another person was talking near the road and the victim child was coming towards her.

7. Law is by now well settled that it is the prosecution who is to prove rash and negligent driving and same is to be proved by clear and credible evidence. There can be two kinds of witnesses which can be treated as credible witness in such nature of a case, which firstly the eye witnesses account and the physical evidence from the site of the accident. It is equally well settled that high speed alone is not enough to prove rash and negligent driving. The circumstances and context surrounding the driving behavior are important. In a given case driving at a high speed or low speed does not necessarily mean that the driver acted rashly and negligently.

8. In the case in hand, as recorded hereinabove, none of the eye witnesses had testified regarding any rashness or negligence on the part of the driver in driving the vehicle, except stating that he was in a high speed/ excessive speed. The fact remains that the accident took place in a National Highway.

9. Therefore, in the aforesaid circumstances there ought to have been som