The prosecution must establish beyond reasonable doubt that the accused's driving was rash or negligent to uphold a conviction under Section 304(A) IPC.

ORDER :

(Maninder S. Bhatti, J.)

This revision has been filed by the applicant under Section 397/401 of the Cr.P.C. being aggrieved by judgment of conviction and order of sentence dated 31.07.2008 passed by the 17th Additional Sessions Judge, (Fast Track Court) Jabalpur in Criminal Appeal No.96/2008, whereby the applicant has been convicted under Section 304(A) of IPC and sentenced to undergo S.I. for 6 months and fine of Rs.300/- with default stipulations.

2. The facts as detailed in the memorandum of the revision reveal that a prosecution under Sections 279 and 304(A) of IPC was lodged against the applicant on the allegations that at around 9:35 AM on 18.12.2004, the present applicant while driving the vehicle rashly and negligently caused death of one Vijay Pal Singh as a result of which, a trial was conducted. The trial Court convicted the present applicant under Sections 279 and 304(A) of IPC. The order of the trial Court was assailed by filing an appeal before the 17th Additional Sessions Judge, Jabalpur. The Appellate Court, partly allowed the appeal. The Appellate Court set aside the conviction under Section 279 of IPC but upheld the conviction under Section 304(A) of IPC by which, the applicant was directed to undergo Simple Imprisonment of 6 months.

3. Learned counsel for the applicant at the very outset submits that in the present case, the original applicant was expired way back in the year 2009 and thereafter, his wife was permitted to prosecute this revision vide order dated 20.10.2009. It is contended by the counsel that in the present case, the trial Court as well as Appellate Court fell in error while convicting the applicant under Section 304(A) of IPC. It is contended by the counsel that in order to make out a case under Section 304(A) of IPC, it is incumbent upon the prosecution to establish that the act in question was rash and negligent which resulted in the death of the deceased. In the present case, none of the prosecution witnesses stated that on account of rash and negligent driving, the accident had taken place. On the contrary, the witnesses made futile attempt to state that the original applicant/accused was in the state of insobriety and in the said state, the offence in question was committed. It is contended by the counsel that the said fact of the original applicant being intoxicated was not proved by any other corroborated evidence. The original applicant was never medically examined in order to ascertain as to whether he was in the state of insobriety or not, yet the aforesaid statements were taken into consideration by the Trial Court as well as Appellate Court while convicting the original applicant. It is contended by the counsel that merely, a vague statement of the original applicant being intoxicated could not have been made basis to convict him. It is thus, contended by the counsel that in absence of any evidence in that regard the original applicant could not have been convicted.

4. It is the further contention of the counsel that the conviction of the original applicant was primarily based on the testimonies of T.K. Goswami (PW-1) as well as Ganesh Singh (PW-7). In the entire testimonies of T.K. Goswami (PW-1) as well as Ganesh Singh (PW-7), it is nowhere stated that the applicant was driving the vehicle rashly and negligently. It is contended by the counsel that driving the vehicle at a high speed itself is not a ground to apply the rigors of Section 304 (A) of IPC. It is obligatory on the part of the prosecution to establish that the vehicle was being driven rashly and negligently and in support of his contention learned counsel for the applicant has placed reliance on the decision of the Apex Court in the case of Suleman Rehiman Mulani & Anr. Vs. State of Maharashtra ( 1967 SCC OnLine SC 337), decision of this Court in the case of Arvind Singh Rajput vs. State of M.P. (2011 SCC OnLine M.P. 2485) and the decisions of Delhi High Court in the cases of Abdul Subah vs. State (NCT of Delhi)