The court upheld that for convictions under Sections 279 and 304A IPC, the prosecution must prove rash and negligent driving caused the death, which was sufficiently established through witness testimony, despite limitations in evidence details.

JUDGMENT :

MITALI THAKURIA, J.

Heard Mr. D. A. Kaiyum, learned counsel for the petitioner and Mr. B. Sarma, learned Additional Public Prosecutor, for the State respondent.

2. This is an application filed under Section 401 read with Section 397 of the CrPC against the judgment dated 30.05.2015, passed by the learned Sessions Judge, Kamrup, Amingaon in Criminal Appeal No. 01/2015 upholding and confirming the judgment and order dated 10.12.2014, passed by the learned Additional CJM, Kamrup in G.R. Case No. 1332/2014 arising out of Palashbari P.S. Case No. 89/2011, whereby the accused petitioner was convicted under Section 279/304(A) IPC and sentenced him to undergo R.I. for 6 (six) months under Section 279 IPC and R.I. for 6 (six) months under Section 304 (A) IPC, with a direction that both the sentences will run concurrently.

3. It is submitted by Mr. Kaiyum, learned counsel that the learned Trial Court as well as the learned Appellate Court did not appreciate the evidence on record in its true perspective and arrived at a wrong decision, convicting the accused revision petitioner under Sections279/304(A) IPC.

4. He further submitted that the prosecution had examined 4 (four) numbers of witnesses in support of their case and out of 4 witnesses, 3 witnesses did not see the occurrence and they are not the eye witnesses to the prosecution case. PW.1, who is the brother of the deceased, only got the information about the accident, but he is not an eye witness. Similarly, both PWs. 2 and 4 also heard about the incident and they are also not the eye witnesses to the incident. It is only PW.3, the informant, who is the only eye witness of the case. It is also submitted by Mr. Kaiyum, learned counsel that the prosecution has not exhibited the bicycle involved in the said accident. He further submitted that the seizure list as well as the post mortem report of the deceased was also not exhibited by the prosecution.

5. As per the evidence of PW.3, on the date of the incident, he along with his wife was coming in a bicycle, when the offending truck hit on the handle of the bicycle coming in a high speed, for which the alleged incident had occurred, causing damage to his bicycle and his wife came under the wheel of the truck and died on the spot. He also sustained some injuries on his person.

6. Mr. Kaiyum, learned counsel mainly stressed on the point that as per the evidence of PW.3, the offending vehicle came in a high speed, but there is no other evidence of any rash and negligent driving of the vehicle to fulfill the ingredients of Section 279 IPC, nor there is any proper evidence that the deceased died due to rash and negligent driving by the accused petitioner.

7. He further submitted that merely the statement of the informant/PW.3 that the truck was in a high speed cannot constitute an offence under Sections 279/304(A) IPC to hold that the accused was driving the vehicle in a rash and negligent manner. He submitted that the accident is admitted and death of the wife of the informant is also admitted, but unless there is rash and negligent driving on the part of the accused petitioner, he cannot be convicted under Sections 279/304(A) IPC.

8. Mr. Kaiyum, learned counsel further submitted that from the statement made by the accused under Section 313 CrPC, that the informant was riding the bicycle with an imbalance condition and even he did not obey the signal given by the accused petitioner and thus, the incident had happened only due to default of the informant and there was no rash and negligent driving on the part of the accused petitioner.

9. To substantiate his plea