Conviction under IPC Sections 279 and 304A requires proof of rashness or negligence, which was established through evidence of excessive speed and failure to brake.

JUDGMENT :

Kaushik Goswami, J.

Heard Mr. R. Sarma, learned counsel for the petitioner. Also heard Mr. P.S. Lahkar, learned Addl. Public Prosecutor for the State respondent.

2. This revision petition is directed against the Judgment & Order dated 21.02.2011 passed by the learned Sessions Judge, Jorhat (hereinafter referred to as ‘Appellate Court’) in Crl.A. No. 28/2010, whereby the appeal filed by the petitioner (accused before the Trial Court) was dismissed and the Judgment & Order dated 27.08.2010 passed by the Chief Judicial Magistrate, Jorhat (hereinafter referred to as ‘Trial Court’) in G.R. Case No. 1020/2007, whereby the petitioner/accused was convicted under Sections 279/304A/337 of IPC .

3. The facts of the case is that the jurisdictional Police Officer lodged an FIR on 23.08.2007 stating inter alia that it was learnt that on that date at about 9:40 a.m. on the Gar Ali, in front of the Punjab Engineering, while one Arifa Khatoon was riding a bicycle carrying her younger sister Armina Khatoon and was proceeding towards D.C.B. School, a Truck bearing registration No. AMS 5938 at a very high speed and in a rash and negligent manner driven by the petitioner/accused hit them from behind as a result of which, Armina Khatoon fell down from the bicycle and the left side rear wheel of the Truck ran over her head killing her on the spot.

4. It is further alleged that Arifa Khatoon also sustained fracture injury on her right leg and the bicycle was totally damaged. It is further alleged that the petitioner/accused fled away from the place of occurrence by leaving the Truck. Accordingly, the FIR was registered under Sections 279/338/304A/427 ofIPC and thereafter, Charge-sheet was filed under Sections 279/338/304A/427 of IPC . After completion of the investigation, the Investigating Officer filed Charge-sheet under Sections 279/337/304A/427 of IPC against the petitioner/accused.

5. Thereafter, the trial was conducted, wherein the prosecution examined as many as 8 (eight) witnesses, whereas the petitioner/accused did not examine any witness except his statement under Section 313 Cr.PC, wherein he has denied the prosecution case and has stated that the allegations leveled agaisnt him are false and baseless.

6. After conclusion of the trial, the Trial Court was pleased to hold the petitioner/accused guilty under Sections 279/304A/337 of IPC . Being aggrieved by the aforesaid Judgment & Order of the Trial Court, the petitioner/accused filed an appeal being Crl.A.No. 28/2010 before the Appellate Court, wherein the Appellate Court after analyzing and re-appreciating the evidences was pleased to dismiss the said appeal. Situated thus, the present criminal revision petition has been filed.

7. Mr. R. Sarma, learned counsel for the petitioner/accused submits that there being no evidence as regards rash and negligent driving, the Judgment & Order of both the Appellate Court as well as the Trial Court are totally perverse. He further submits that in order to constitute an offence under Sections 279/304A, the proof of rashness or negligence is essential. In support of the aforesaid submissions, he relied upon the decision of the Co-ordinate Bench of this Court in the case of Kriti Singh Vs. State of Assam, reported in 2005 2 GLT 274.

8. Per contra, Mr. P.S. Lahkar, learned Addl. Public Prosecutor for the State respondent submits that it has clearly come out from the testimonies of PW-1, PW-2, PW-3, PW-4 & PW-7 and the exhibits especially Ext.4, which is the trace map that the petitioner/accused was driving the vehicle in question in a rash and negligent manner and therefore, there being evidence of rash and negligent, offence is clearly made out under Sections 279/304A of IPC .

9. He further submits that the concurrent findings of the Trial Court as well as the Appellate Court being based on evidence, this Court ought not to disturb such findings. He further submits that there being no manifest or patent error on the face of the record, this Court while