The main legal point established is that negligence in driving should be determined based on the driver's knowledge of the danger and the foreseeability of the accident, considering all attending and surrounding facts and circumstances.

JUDGMENT :

SASHIKANTA MISHRA, J.

1. The petitioner in the present revision calls in question the correctness of the judgment dated 09.02.2007 passed by learned Sessions Judge, Koraput at Jeypore in Criminal Appeal No. 84 of 2006, whereby, the judgment of conviction and sentence passed by learned J.M.F.C. Kotpad in G.R. No. 120 of 1999 was confirmed. As per the said judgment, the trial Court held the petitioner guilty of the offence under Sections 279/337/304-A of IPC and sentenced him to undergo RI for six months and to pay a fine of Rs. 500/- in default, to undergo further R.I. for one month on each of the counts under Section 279/337 of IPC and to further undergo R.I. for two years and to pay a fine of Rs. 1000/- in default, to undergo R.I. for two months for the offence under Section 304-A of IPC.

2. The prosecution case, in brief, is that on 29.11.1999 at about 7.30 a.m. the petitioner was driving a Commander Jeep carrying 15 passengers, which capsized on the road leading from Potroguda to Miriguda near a pond known as Kenduguda. As a result, one Kamalu Samarath died and other occupants sustained bodily injuries. The matter being reported to police, Kotpad P.S. Case No. 120/1999 was registered followed by investigation. On completion of investigation, charge sheet was submitted against the petitioner under Sections 279/337/338/304-A of IPC.

3. The petitioner faced trial in the Court of learned J.M.F.C. Kotpad, during which 18 witnesses were examined along with other documentary evidence adduced by the prosecution. After going through the evidence on record, learned Court below held that there was no rashness on the part of the accused driver but he was negligent because despite the fact that the road condition was bad and there were rain-cuts in the road, the accused should have been more careful in driving the vehicle carrying 10-12 passengers. Learned Court below further applied the doctrine of Res Ipsa Loquitur to hold that the defence could not dislodge the prosecution allegation. It was however held that the offence under Section 338 was not proved, but the offence under Sections 279/337/304-A are clearly proved. As such, the petitioner was convicted for the aforementioned offences and sentenced as aforesaid.

4. The petitioner carried the matter in appeal to the Court of Sessions mainly contending that the allegation of rash and negligent driving was not adequately proved. Learned Appellate Court perused the evidence on record and held that the MVI had ruled out the possibility of any mechanical failure of the vehicle and had also opined that the accident occurred due to rash and negligent driving of the accused. Since such evidence of the MVI had not been disputed, the same stood automatically corroborated. Learned Appellate Court further relied upon the doctrine of Res Ipsa Loquitur to hold that the driver had not adduced any evidence independently to show that in spite of care and caution on his part, the accident had occurred. It was further held that as the road condition was not good, care and caution was expected from the driver while driving the vehicle. On such reasoning, learned Appellate Court dismissed the appeal confirming thereby the judgment of conviction and sentence passed by the learned Court below.

Feeling further aggrieved, the petitioner has approached this Court in the present revision.

5. Heard Mr. Sailesh Das, learned Amicus Curiae for the petitioner and Mr. S.K. Mishra, learned Addl. Standing Counsel for the State.

6. Mr. S. Das assails the impugned judgment mainly on the ground that it was entirely improper for the courts below to rely on the MVI report ignoring the ocular evidence on record which does not in the least suggest rash or negligent driving by the accused driver. It is further contended by Mr. Das that the application of the doctrine of Res Ipsa Loquitur by shifting the burden to the petitioner is also untenable.

7. Per contra, Mr. S.K. Mishra in supporting the impugned judgments contends