JUDGMENT :

K.C. Sood, J.

Under Challenge in this petition, is the conviction and sentence imposed upon the petitioner Sucha Singh, hereinafter referred to as "the accused", recorded by the learned Judicial Magistrate, 1st Class (II), Dharamshala, District Kangra, dated August 17, 2000, for offences punishable under Sections 279, 304-A of the Indian Penal Code and Section 184 of the Motor Vehicles Act, as affirmed by the learned Additional Sessions Judge (1), Kangra at Dharamshala iated February 15, 2002 by the impugned judgment.

2. The case of the prosecution was:

On July 2, 1999 accused was driving Truck No. DIL 3477 and caused an accident near Nawana Pull, as a result whereof an eight years old boy was crushed under the rear tyre of the truck. The trial court on appreciation of the evidence held that the accident took place on a curve, when the truck was on ascent. To come to this conclusion, the learned trial court relied upon the evidence of Surinder Kumar (PW-1) and Girdhari Lal (PW2).

3. Mr. Ashwani Sharma, learned counsel for the petitioner submits that the conviction recorded by the learned trial Magistrate, as affirmed by the learned Additional Sessions Judge, is dehors the evidence. He submits that there is no evidence which may even remotely suggest that the accident occurred due to rash and negligent driving of the truck by the accused.

4. In order to secure conviction, the prosecution is obliged to prove that the accused was driving the vehicle in rash or negligent manner. Now rash act is an over-hasty act with a hope that evil consequences may not follow. Whereas in case of negligence, a party breaks a positive duty. In other words, he fails to do an act which he otherwise is obliged to perform. In rashness, he violats a negatives duty.

5. Rashness has been defined to mean where an offender is aware of the consequences of the act but hopes or assumes that those consequences will not follow. Negligence is breach of a duty caused by the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent or reasonable man would not do.

6. In the present case, the evidence on record does not suggest any rash or negligent driving on the part of the accused. Surinder Kumar (PW1) admittedly an interested witness being maternal uncle of the deceased. It is his evidence that he and Girdhari Lal were engaged in talks when offending truck came from Chamunda side in a high speed and crushed the boy who was coming from School under the rear tyre of the truck. Both Surinder Kumar and Girdhari Lal (PW2) rush (sic-rushed)to the spot. It is admitted position and this witness admits in his cross examination that the truck was loaded and was going up hill. It is his evidence that front part of the truck had passed when the boy came from the School and hit him with the rear tyre. To a similar effect is the evidence of Girdhari Lal (PW2). According to him when the accident took place, the School had closed for the day. A boy who was coming from School came under the left side of the wheel of the truck. A perusal of the spot map Exhibit PW8/A shows that the truck was uphill. The boy admittedly came from the left side of the road and was crushed under the rear left wheel. It is not the case of the prosecution that the boy was standing on the side of the road when truck passed him and he was crushed under the rear tyre. The only possibility is that boy came running from the School unmindful of the truck gong uphill struck against the truck and came under the rear tyre of the wheel and got crushed. This apart, these two witnesses could not have seen the accident. It is the evidence of Surinder Kumar (PW1) that he and Girdhari Lal were engaged in talks when the truck driven at a high speed came and crushed the boy who was coming from the school. It is his further evidence that they saw this accident from 60 feet. The evidence of Gir