The main legal point established is that in cases of rash and negligent driving leading to fatal accidents, the court will assess the evidence, impact of the occurrence, and the driver's responsibility based on clear vision and geographical factors to determine guilt and sentencing.

JUDGMENT :

K. Haripal, J.

1. This is an appeal preferred under Section 374 of the Criminal Procedure Code, hereinafter referred to as the Cr.P.C., by the accused in SC No. 409/2007 of the Additional Sessions Court (Ad hoc-II), Ernakulam. That case was originated on the final report laid by the Circle Inspector, Kunnathunadu in Crime 125/2006 of Thadiyittaparambu police station.

2. The summary of the prosecution allegation is that on 18.11.2006 at about 4.30 a.m., the accused/appellant drove a stage carriage with registration No. KL-2/U-2454, in a rash and negligent manner through Aluva-Perumbavoor road, from east to west, due to the said act, near MES junction at South Vazhakkulam kara in Vazhakkulam village, the bus hit against a jeep, KL-I-8224, which proceeded in the opposite direction, and in the impact of the incident, four passengers travelled in the jeep died and other co-passengers sustained serious injuries. The crime was registered on the basis of the first information statement given by Suhara, one of the injured who was travelling in the jeep. On conclusion of investigation, the charge sheet was laid before the Judicial First Class Magistrate Court, Perumbavoor alleging offence punishable under Sections 304 and 308 IPC. The Magistrate who took cognizance of the offence, after completing the procedural formalities, committed the case to the Court of Session, from where it was made over to the trial court.

3. After hearing counsel on both sides and perusing the records, the learned Judge framed charge, read over and explained to the appellant, to which he pleaded not guilty. He is on bail. He was defended by a counsel of his choice.

4. Sixteen witnesses, PWs 1 to 16, were examined on the side of the prosecution. Exts. P1 to P30 were also marked. After closing prosecution evidence, when examined under Section 313 Cr.P.C., the appellant denied the incriminating evidence spoken against him and reiterated his innocence. As this was not a fit case for acquittal under Section 232 Cr.P.C., the learned Additional Sessions Judge called the appellant to adduce evidence in defence, if any. But no evidence was adduced.

5. At the fag end of the proceedings, the learned Additional Sessions Judge altered the court charge to one under Section 304A IPC; when the charge was again read over and explained also, the appellant pleaded not guilty. The counsel on both sides endorsed that they do not want to examine the witnesses further, after the alteration of the charge. After hearing both sides, by the impugned judgment, the learned Judge found the appellant guilty of offence under Section 304A IPC and convicted him thereunder and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 10,000/-, in default to undergo simple imprisonment for three months. He was also found entitled to get set off under Section 428 Cr.P.C. That finding of guilt and sentence is under challenge in this appeal.

6. The learned counsel for the appellant vehemently challenged the finding of the trial court. According to him, rash and culpable negligence on the part of the appellant as a driver could not be proved by the prosecution. PWs 1 to 4 were the eye witnesses to the occurrence of which PWs 1 to 3 were the injured passengers of the jeep. PW4 turned hostile to the prosecution whereas the testimony of PWs 1 to 3, who attempted to support the prosecution case, could be shaken in cross-examination. According to him, rash and negligent driving depends on the manner of driving. PWs 1 and 3 have stated that they did not see the bus prior to the incident, whereas PW2 has spoken only about the negligence of the driver of the bus; he has not spoken anything about the speed of the bus. Referring to the decision in Mrs. Shakila Khader etc. v. Nausher Gama and another AIR 1975 SC 1324), he said that speed is not the only criterion to speak about rashness. He also urged that the scene mahazar would indicate that the jeep was on the wrong side; it was