1. In this revision case, the conviction of the appellant Under Section 304-A I.P.C. by the 6th Metropolitan Sessions Judge as confirmed by the Metropolitan Sessions Judge, Hyderabad is being challenged.
2. The case of the prosecution is that at about 1 p.m. on 26/7/1982 the accused-appellant drove a lorry AAT 7122 rashly and negligently at a high speed, overtook a bullock cart, took the said lorry to the extreme right side of the road and dashed against the deceased, a young boy of about thirteen years by name Sheriff, who was then proceeding on a cycle in the opposite direction towards A truer pet near the slaughter house, as a result of which the boy fell down from the cycle and the lorry run over him, resulting in his instantaneous death. The accused proceeded to a short distance then stopped the lorry and fled away from the spot. The occurrence was witnessed by PW 1 and PW 2. The trial court, relying upon the testimony of P.Ws. 1 and 2 who were the eye-witnesses, found the appellant guilty of the offence Under Section 304-A I.P.C, convicted him there under and sentenced him to undergo rigorous imprisonment for six months. On appeal preferred by the appellant before the Metropolitan Sessions Judge, Hyderabad, the learned Sessions Judge, on a detailed reappraisal of the evidence on record, concurred with the finding of the trial court and confirmed the conviction and sentence passed by the learned Metropolitan Magistrate.
3. Sri Sankararao Bhilolikar, learned Counsel for the appellant firstly contended that the evidence of P.Ws. 1 and 2 is bald and omnibus and does not establish that the appellant was guilty of rash or negligent act as required Under Section 304-A I.P.C. The requirements of Section 304-A are that the death of any person must have been caused by doing any rash or negligence act. In other words, there must be proof that the rash or negligence act of the accused was the proximate cause of the death of the deceased. There must be direct nexus between the person and the rash or negligent act of the accused. To impose criminal liability under the section it is necessary that the death should have been the direct result of the rash or negligent act of the accused.
4. On a consideration of the evidence of PWs. 1 and 2 and other material on record, the trial Magistrate came to the conclusion that the deceased cyclist died due to the rash and negligent driving of the vehicle by the accused and that the prosecution has proved beyond all reasonable doubt the guilt of the accused Under Section 304-A, I.P.C. The learned Sessions Judge, on a re-appraisal of the evidence of the prosecution and on a consideration of the contentions raised by the counsel for the appellant, observed that it is not necessary that the prosecution should necessarily prove the rashness in order to bring home the guilt of the accused for an offence Under Section 304-A, I.P.C. and that the act of the accused can either be rash or even negligent. He further observed that even assuming that the accused was not driving lorry at a d high speed, conduct in dashing against the cyclist coming in the opposite direction and running over him certainly amounts to a negligent act attracting the ingredients of Section 304-A, I.P.C. On a re-appraisal of the evidence of the eye witnesses to the occurrence, I am of the conclusion that the death of the deceased has been the direct result of the negligent act of the appellant and there is nothing on record and in fact nothing was suggested in the cross-examination of P.Ws. 1 and 2 that there was any possibility of the accident having been caused due to fault of deceased. It is established from the evidence of P.Ws. 1 and 2 that the lorry of the appellant had overtaken the cart which was passing in the same direction and directly hit the cyclist and the lorry run over the deceased causing multiple injuries to the various parts of the body of the deceased resulting in his death. The medical evidence corroborates the testimony of the direct witnesses P.Ws. 1 and 2 inasmuch as the post-mortem doctor found grievous injuries on the thigh, tyre marks on the abdomen and fatal injuries on the skull. From the injuries recorded by the post-mortem doctor, it appears to be a very ghastly accident. P.Ws. 1 and 2 in unequivocal terms stated that the lorry hit cycle of the deceased resulting in his instantaneous death Nothing was suggested in the cross-examination of P.Ws. 1 and 2 challenging their statement that the lorry of the appellant overtook the cart passing on the road and hit against the cycle of the deceased and run over the deceased resulting in his death on the spot.
5. The main criteria for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic and the attempt in this case to overtake the other vehicle resulting in his going to the wrong side of the road and being responsible for the accident. Even if the accident took place in the twinkling of an eye, it is not difficult for an eye-witness to notice a lorry overtaking other vehicle and going to the wrong side of the road and dashing against a cyclist who was coming from the opposite direction in the correct side. There is no doubt in this case, in veiw of the categorical evidence of PWs. 1 and 2, that the lorry of the accused having overtaken the cart passing in front of the lorry directly hit against the cycle of the deceased and fun over the body of the deceased resulting in his death on the spot. The fact that the lorry of the appellant overtaking another vehicle going to the wrong side of the road hitting against the cycle and the lorry running over the deceased would establish rash and negligent driving of the lorry by the accused, viz overtaking another vehicle and going to the opposite side of the road and hitting the cyclist and running over the person on the cycle. The driver is expected to be very cautious While he has got a right to overtake a slow-moving vehicle on the road, he has no right to hit against another vehicle coining in the opposite direction without taking proper care and caution. P.W. 2 has categorically stated in his evidence that the appellant has not blown horn while overtaking the cart. The statement of P.W. 2 was not challenged in his cross-examination. Thus I am satisfied that both the courts below have right come to the conclusion that the guilt of the accused is established beyond reasonable doubt.
6. The learned Counsel Sri Shankarao Bhilolikar contended that the sentence awarded against the appellant is excessive and that in view of the fact that the appellant is a young man of about twenty nine years, a lenient view of the matter be taken. But the fact remains that the appellant has been guilty of taking away the life of another young boy hardly aged about thirteen years due to his rash and negligent act. In the circumstances of the case, I do not consider this to be a fit case to take a lenient view of the matter. I do not consider that the sentence passed by the courts below is excessive. Accordingly the criminal revision case is dismissed.