A driver is liable for an accident causing death if they were driving rashly and negligently, and they cannot be sentenced separately for offenses under Sections 279 and 337 IPC when one of the ingredients of the offense under Section 337 IPC constitutes an offense under Section 279 IPC.

Sarojnei Saksena, J.

1. The accused Kartar Singh was convicted for the offences under Sections 279, 337 and 304-A, I.P.C. and sentenced to 4 months R.I. for an offence under section 279, I.P.C., 4 months R.I. for an offence under Section 337, I.P.C. and 18 months R.I. under Section 304-A, I.P.C., with a fine of Rs. 500/- in default 6 months R.I. All the sentences were to run concurrently. The accused preferred an appeal against his conviction and sentence, but that too was rejected by Shri R.S. Madan, Additional Sessions Judge II, Bhiwani by his judgment dated 25th January, 1988. Hence this revision.

2. The learned defence Counsel relying on M.H. Lokra v. The State of Maharashtra, AIR 1972 Supreme Court 221, contended that from the prosecution evidence adduced in this case, it is evident that the rickshaw was coming down the slope. It had three passengers and certain household goods were also loaded therein. Observing the approaching tanker, the rickshaw puller lost balance and collided with the tanker. The tanker was on the left side of the road. Thus it is apparent that as the rickshaw suddenly dashed against the tanker because the rickshaw puller lost the control, it would not have been held that the accused was driving the truck (tanker) rashly or negligently.

3. M.H. Lokres case (supra) is distinguishable on facts because in that case a pedestrian suddenly crossed the road without taking note of the approaching Bus and he dashed against the Bus without the Driver becoming aware of it. Under these circumstances, it was held that Bus Driver could not save the accident, however slowly he may be driving and, therefore, he cannot be held to be negligent, in such a case. In this case, the prosecution has examined Ram Sarup (PW-1) an eye-witness and Mange Ram (PW-2) who was a passenger in the fateful rickshaw and who sustained injuries in this accident. These two witnesses have categorically stated that the truck was coming at excessively high speed though they were not able to state the speed in terms of kilometres per hour, but on that account alone, their sworn testimony on this score could not be rejected.

4. The learned defence counsel further stressed that from the evidence of these two witnesses named above, it is evident that the truck stopped at a distance of 20-25 paces from the place of the accident. Hence there was no material before the trial Court to conclude that the accused was driving the truck rashly and negligently. In support of this contention, he has relied on Krishna Bahadur Chetri v. State of Assam, 1979 Criminal Law Journal 1258.

5. In Krishna Bahadur Chetris case (supra), the truck driven by the accused was stopped only at a distance of half a furlong or so from the place of accident. It was held that this fact clearly showed that the truck was running at a moderate speed and was not being driven at the alleged break neck speed. It is further held criminal negligence must always reach the stage of gross and culpable negligence or failure to exercise the requisite, reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which is required to be judged having regard to all the circumstances out of which the charge has arisen, that it was the imperative duty of the accused to have adopted a course which he has neglected or failed to adopt". No doubt from the site plan as well as from the photographs produced before the trial Court and from the ocular evidence, it is evident that the truck of the accused was on the left side of the road, but simply because after the accident it was stopped at 20-25 paces, this factor alone is not sufficient to arrive at a conclusion that the accused was not driving the truck rashly or negligently.

6. As discussed above, Ram Sarup (PW-1) and Mange Ram (PW-2) have clearly stated that the truck was being driven at an excessively high speed. Even the authority Bhagwana v. The State of Rajasthan, 1979 Accidents