Negligence resulting in death or injury is determined by the driver's conduct in relation to the surrounding circumstances and evidence presented during trial.

O R D E R

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The revision petitioner was prosecuted by the Circle Inspector of Police, Cherpu Police Station, in Crime No.130/95, accusing offences under Section 279 , 337 and 304 A IPC with an allegation that at 11.30 a.m., on 29.6.1995, the revision petitioner drove a tempo van bearing Reg. No.KL-8C/1575 along Iringalakkuda-Thrissur road in a rash and negligent manner so as to endanger human life and at Poochunnippadom, the van hit on the rear of a bicycle, which was pushed by PW1 and his wife, PW2, with their kid, Gomathy aged 1 ½ years, in a basket fixed on the front part of the bicycle. As a result of hit, PW1 fell down to the left side of the road and sustained simple hurt. The child fell down to the right side of the road and the rear wheel of the van ran over the head of the child causing instantaneous death.

2. The revision petitioner pleaded not guilty before the trial court. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 11 were examined and Exts.P1 to P6 were marked. After closing the evidence for the prosecution, he was questioned under Section 313 of the Code of Criminal Procedure. He denied the incriminating evidence and advanced a plea of total denial. On appraisal of the evidence, the learned Magistrate arrived at a conclusion of guilty. Consequently, he was convicted and sentenced to rigorous imprisonment for six months and a fine of Rs.1,000/- with a default sentence of simple imprisonment for one month.

3. Aggrieved by the above conviction and sentence, he preferred Crl.A.No.239/1999 before the Sessions Judge, Thrissur. The 3rd Additional Sessions Judge, to whom the appeal was made over, by judgment dated 12.4.2002, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this Revision Petition is preferred.

4. I have heard Adv. Sri.M.R.Venugopal, the learned counsel appearing for the revision petitioner and Ms.Madhu Ben, the learned Government Pleader. The learned counsel for the revision petitioner took me through the judgment impugned as well as the evidence of PWs 1 and 2 who are the only occurrence witnesses.

5. The factum of the accident is not at all disputed. The learned counsel confined his argument regarding the identity of the assailant and the negligence aspect.

6. PWs 1 and 2 are harmonious that they were pushing the bicycle with their daughter, Gomathi, in the basket fixed infront of the bicycle, along the northern side of the road from west to east and that the van driven from back hit on the rear of the bicycle and as a result, PW1 fell down to left and sustained injuries. Their daughter, Gomathi, fell down to the right whereupon the van ran over the head of the child. Ext.P5, the scene mahazar, would show that the road at the place of occurrence was having a width of 5.83ms and that the accident spot was 85cms towards south from the northern tar end. Regarding the spot of occurrence, there is no quarrel. Therefore, the courts below were correct in appreciating the evidence and right in coming to a conclusion that PWs 1 and 2 were along the extreme side of the road and there is little contribution from the side of PWs 1 and 2 to cause the accident. Ext.P5, scene mahazar, also would show that the van could be stopped within 2.5ms from the spot of occurrence. It would indicate that the van was either not driven at a high speed but the sheer negligence of the driver caused to hit on the bicycle or it was driven at a non-controllable speed because of which he couldn't stop the vehicle without hitting the bicycle. Either way, the factum of the accident itself would speak volumes about the negligence. It cannot be said that PWs 1 and 2 suddenly rushed to the road with the bicycle. Ext.P4 report issued by PW6, the Joint R.T.O., would show that the vehicle had no mechanical defect. Therefore, mechanical defect cannot be attributed as a cause for the a