ORDER
B.N. Dash, J.
1. The conviction of the petitioner Under Sections 279 and 304-A, I.P.C. and the sentence imposed on him to undergo rigorous imprisonment for two months Under Section 279 and six months Under Section 304-A, IPC, which are affirmed in appeal, have been assailed in this revision.
2. The prosecution case, shortly stated, is that on 6-6-1980 at about 6 p.m. while the deceased aged 70 years was returning to his house on foot carrying in a hand-bag some fish, oil etc., which he purchased in bazar, and was moving on his left side of the Grand Road of Puri town, the petitioner driving a bullock cart from his behind rashly and negligently dashed the cart from his back side. As a result of such dashing, the deceased fell down on the ground and thereafter, the left wheel of the bullock cart ran over his chest and he became unconscious. Thereafter, passers-by took him to the Headquarters Hospital, Puri but he succumbed to the injuries sustained by him. On receipt of a written report to that effect from Dr. Banamali Rath, the Assistant Surgeon of the Hospital (P. W. 1), the Officer-in-charge of Puri Town Police Station registered the case. In course of investigation, autopsy was conducted on the dead body of the deceased and the bullock cart in question was seized and after completion of investigation the petitioner was put to trial.
3. The defence was denial of the allegations that the bullock cart was being driven rashly and negligently. No witness was, however, examined in support of the defence plea.
4. At the trial, prosecution examined six witnesses, out of whom P.W. 1 is the Medical Officer who not only gave the FIR but also conducted autopsy on the dead body of the deceased; P.Ws. 2, 3 and 5 are said to be the eye-witnesses to the alleged occurrence; P.W. 4 is the constable who identified the dead body before P.W. 1 and P.W. 6 is the Investigating Officer. Out of the eye-witnesses, P.W. 5 did not support the prosecution case. Relying on the evidence of P.Ws. 2 and 3 which were corroborated by the medical evidence of P.W. 1, the trial court believed the prosecution case resulting in the conviction and sentence of the petitioner. Appeal against such judgment having failed, the present revision has been filed.
5. Mr. G. H. Panda, the learned counsel for the petitioner has raised two contentions. His first contention is that the driving of the bullock cart by the petitioner having not been proved to be either culpably rash and culpably negligent, the courts below went wrong in convicting him. His second contention is the regard being had to the age of the accused who was 30 years at the time of commission of the alleged crime, his substantive sentence of imprisonment may be suitably converted to fine.
6. So far as the first contention is concerned, it is seen from the evidence of P.W. 2 that the Grand Road at the place of occurrence was straight and the road was neither crowded nor conjested at the relevant time. It is further seen from the evidence of P.Ws. 2 and 3 that when the deceased was hardly 5 to 6 cubits away from the bullock cart, the petitioner suddenly drove the cart at a high spead and as a result thereof the front side of the cart first dashed against the deceased resulting in his falling down on the ground and thereafter, the left wheel of the cart ran over him. With these evidence, the correctness of the contention has to be judged.
7. There is a distinction between a rash act and a negligent act. In the case of rash act, the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence 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. Otherwise stated, culpable negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do and a culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. In this case, when an old man like the deceased was moving ahead of the bullock cart, the petitioner should have been very very cautious in driving the same but instead of taking any precaution he drove the cart recklessly when the deceased was hardly 3 to 6 cubits away with the result that the front portion of the cart dashed against the deceased. The driving was reckless, because the petitioner could not control the bullock cart after the same dashed against the deceased and for that the left wheel of the cart ran over the deceased. Under these circumstances, the conclusion is irresistible that the driving of the bullock cart by the petitioner which ultimately resulted in the death of the deceased was both culpably rash and culpably negligent and as such, the contention being without force, must fail.
8. As regards the second contention, it is seen that at the time of the commission of the crime the petitioner was hardly aged about 30 years and so at present he may be called a quite young man. The crime committed by him is not against the society. If he would be sent to prison, then he would come in contact with hardened criminals and ultimately may prove himself to be a hazard to the society. Taking all these factors into consideration, I accept the contention raised by Mr. Panda and set aside the sentences of imprisonment awarded by the trial court which has been upheld by the appellate court and in their place I impose a sentence of fine of Rs. 5,000/- (Rupees five thousand), in default, to undergo rigorous imprisonment for six months Under Section 304-A I.P.C. No separate sentence of fine is awarded Under Section 279, I.P.C., the same having merged under the bigger offence Under Section 304-A, I.P.C.
9. With the modification in the sentence as already indicated above, the revision is dismissed.