B.L. Hansaria, J.
1. The petitioner has been found guilty Under Sections 279/304A of the Penal Code for having caused the death of Bikash Chandra Dey, aged about 6 1/2 years, at the relevant time. The accident which had resulted in the death had taken place on 26-12-75 at about 12.30 PM on the Moran-Naharkatiya road. The prosecution case is that the death had occurred due to rash or negligent driving of the vehicle No. ASK 8357 by the petitioner which knocked down the boy on the right side of the road in so far as the vehicle is concerned. The learned trial Court and on appeal the learned Sessions Judge have opined that death was the result of rash and negligent driving of the vehicle by the petitioner.
2. The first submission advanced by Shri Gogoi is that the learned appellate Court below has failed to bear in mind the distinction between rashness and negligence-either of which would make a person criminally liable for his acts. He contends that absence of this difference is apparent from the impugned judgment by which the petitioner was held to have driven the vehicle both rashly and negligently. The final submission is that the circumstances under which the accident took place were not such for which it could be held that the petitioner was so much rash or negligent as to invite the wrath of any of the sections of law under which he was punished.
3. That there is a difference in the mental condition indicating rashness and negligence, cannot be disputed. It has been pointed out in S.N. Hussain v. State of Andhra Pradesh : 1972CriLJ496 that:
rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
4. The aforesaid definition of criminal rashness and negligence was given by Straight, J. in Empress of India v. Indu Beg, 1881 (3) All. 776 which had been adopted by the Supreme Court in Bhal Chandra v. State of Maharashtra : 1968CriLJ1501 . A reference to Sections 279 and 304A of the Penal Code would show that the Legislature was fully conscious of the difference in rashness and negligence that it has spoken about rashness or negligence not in conjunction but in disjunction. If attention is paid to the facts of the present case and to the two impugned judgments, it would be apparent what was being attributed to the petitioner was not a rash driving, but a negligent performance at the steering. This follows from the conclusion arrived at by the learned Sessions Judge that driving of the vehicle in high speed without necessary precaution or care was the immediate cause of the accident. No rashness can be read on these fact in the act of driving inasmuch as it cannot be stated that the petitioner was aware while driving the vehicle in 'high speed' that he was taking any hazardous course while doing so. It is, however, submitted by the learned Public Prosecutor that driving a vehicle in high speed in the setting in which the accident had taken place would speak of criminal negligence. It is emphasised that the accident had taken place near a school and that too during tiffin time. It was incumbent on the part of the driver, submits the learned Public Prosecutor that in these circumstances he must have taken extra care to see that no injury is caused to tiny-tots.
5. Though PW 1, a sister of the deceased, has deposed about the high speed. That statement seems to be rather vague inasmuch as the speed which may be regarded as high by some one under some circumstances may not be so to every one under all circumstances. There is no sketch map to show as to when the brakes were applied and how far the vehicle had travelled thereafter. That brakes were applied would follow from the evidence of PW-4 who had deposed that the driver had not blown horn before applying the brakes. As the vehicle was being propelled on one of the main roads, no duty was cast on him to drive the vehicle in any particular speed. It is not the evidence of any of the witnesses that the vehicle was in a speed limit zone. It has also come out from the evidence of PWs that no sign board had been put up indicating existence of a school near the place of occurrence. This apart, the evidence about high speed apart from being vague is also a little doubtful inasmuch as the vehicle had just crossed a bridge which was situate at a higher level than the main road.
6. The causing of the accident on the southern side of the road by the vehicle proceeding from west is another circumstance taken into consideration by the courts below and mentioned by the learned Public Prosecutor to hold that the petitioner was negligent. Now, it cannot be said in all cases that just because an accident had taken place not on the left side of the road but on the right side would speak of negligence. Reference may be made in this connection to Syad Akba v. State of Karnataka : 1979CriLJ1374 , wherein also the accident had taken place on the wrong side of the road because of which the doctrine of rest pica loquitur was pressed into service. The Supreme Court rejected the same after going into the question as to whether this doctrine applies to a criminal case and if so, to what extent. We are not required in the present case to traverse this ground inasmuch as it cannot reasonably be stated that the accident itself spoke of negligence. In the present case, it would be sufficient to state that the Supreme Court applied the aforesaid doctrine only in a limited sense indicated in the judgment. What is known of importance for the case at hand is to note that where negligence is an essential ingredient of the criminal offence with which the accused is charged, the negligence must be culpable or gross and not the negligence based merely upon an error of judgment. Simple lack of such care which will constitute civil liability is not enough for liability under the criminal law where a very high degree of negligence is required to be proved. In the present case, the accident had occurred, as per the accused, because of sudden appearance of the boy on the road: It cannot be forgotten that Bikash was of very young in age (6 1/2 years) at the relevant time and he might have decided to cross the road suddenly being not fully conscious of the risk he was undertaking in doing so. To this effect one DW was also examined. Lack of any sketch map has left us guessing about the point where the driver had applied the brake and the distance the vehicle had travelled which would have indicated the speed in which the vehicle was being driven. On the vague statement of the PWs about the vehicle being driven in high speed, it cannot be concluded for definite that the accident had been caused due to negligence of the driver. The further fact that the spot of the accident was on the southern side of the road is also not sufficient to come to the aforesaid conclusion.
7. Keeping in view the position in law and the facts of the case. I would hold that the accused-petitioner was entitled to benefit of doubt in so far as his driving the vehicle rashly or negligently is concerned. I would, therefore, allow the appeal by setting aside the conviction and sentence.