JUDGMENT Bhawani Singh, J.—By this appeal, the State of Himachal Pradesh has challenged the judgment of Chief Judicial Magistrate, Sirmaur District, Nahan, dated 22-10-1984 in case No. 92/2 of 1980 whereby the Court acquitted the accused in a case under section 304-A of the Indian Penal Code. 2. The brief facts of the case, as presented by the prosecution, are that on 14-3-1980 at about 8.30 a. m., the accused was driving truck No. HPN-1156 rashly or negligently as a result of which Shri Hira Lal and Shri Girish, both students, sustained injuries on their person as a result of which one of them, Shri Hira Lal, died in the hospital where both of them had been removed from the spot after the incident. The trial proceeded and ultimately it ended in the acquittal of the accused. 3. Shri M. S. Guleria, learned Assistant Advocate General, made serious submissions in support of the appeal whereas Shri R. K. Sharma, who appeared for the accused, defended the judgment of the trial court with every effort at his command. 4. Shri M. S. Guleria, learned Assistant Advocate General, argued that the observation of the trial court that the case has not been properly investigated, is absolutely wrong. As a matter of fact, he argues, the prosecution has proved the case beyond all reasonable doubts and the only conclusion which could be drawn, in the presence of clear and cogent evidence on the record, was the conviction of the accused. On the other hand, the learned Counsel for the accused, submits that there is no sufficient evidence on record to show the speed, rashness and negligence of the accused. Further, it is submitted that the two boys were grappling with each other when unfortunately one of the boys was pressed when he came near the truck. In nutshell, the submission of the learned Counsel for the accused is that it was the fault of the boy(s) that they came near the truck due to grappling. Another contention of the counsel is that in the absence of proper site plan the exact situation depicting the boys and the truck cannot be ascertained and established which is a serious defect. 5. Another contention of the counsel is that in the absence of proper site plan the exact situation depicting the boys and the truck cannot be ascertained and established which is a serious defect. 5. In view of the respective submissions of the counsel for the parties and looking to the fact that in such like cases the conclusions have to be based on facts existing on the spot and brought to the notice of the Court. 6. In cases of road accidents by moving vehicles, it is ordinarily difficult to find witnesses who would be in a position to firmly narrate the sequence of vital events during the few moments immediately preceding the actual accident from which its true cause can be ascertained. People using the road or who may happen to be in close vicinity are normally busy in their own pre-occupations and in the normal course their attention is attracted only by the noise or the disturbance caused by the accident. In most cases, they look towards the direction and see what had happened on such noise coming from that direction. However, there are also persons who are already looking at the vehicle and the direction to which it is moving and can, therefore, give account of the sequence of the events in which the accident occurred. There are also people who do not care to be attracted towards the site or to attend to the victim fearing their own involvement, may be for sometime, thinking that under the circumstances they have some other more important work to do and destination to reach. I proceed to examine this matter by referring to the statements of various witnesses to know as to whether there is sufficient evidence to prove the accident and the guilt of the accused. 7. My attention has been drawn by Shri M. S. Guleria to the statement of PW I, Shri Sunil Kumar, who states that the truck was coming from the side of the Delhi gate with high speed and suddenly turned towards them. At that time, he states, that another boy Feroz was also with him. His abdomen struck against the railing while Feroz sustained iniuries to his arm and elbow. He himself sustained injury in the lower portion of the back and in his leg due to the impact of the truck. He became unconscious. At that time, he states, that another boy Feroz was also with him. His abdomen struck against the railing while Feroz sustained iniuries to his arm and elbow. He himself sustained injury in the lower portion of the back and in his leg due to the impact of the truck. He became unconscious. The spot was visited by a lady peon who was going to the school. He further states that when he came to senses, he saw that deceased Hira Lal was taken to the hospital. In cross-examination he states that there are no speed breaker near the place of accident although admits that while coming from Delhi gate towards the school, there is ascent but it is very less. He further submits that the curve where the accident took place is of 90 degree and admits that the truck was loaded and the accident took place 50-20 yards from the curve. He denies that the truck was not in speed. He further denies that there was any grappling between the boys. He further denies the suggestion that the deceased Hira Lal fell down due to grappling with his friend and hit the rear side of the truck or that he sustained injuries due to fall on the road. Another important witness is PW 4, Shri Ranbir Singh, teacher who supports PW 2 about the speed of the truck, negotiating of the curve, presence of two boys out of whom one was standing on the railing and further states that left side tyre of the truck got on to the parapet 8"—9" high with the result that the boy who was standing on the parapet was pressed between the railing and the truck with the result that the boy cried and he reached on the spot Two boys who were sitting on the railing also sustained injuries and their clothes were also torn. He states that he went to the telephone booth to call for the ambulance but when be came back the injured children had been taken in the same truck to the hospital. He further states that during this time construction work of the school building was going on and outside the gate, sand and grit was lying and that the direction of the road to which the truck turned was not open to use by trucks. He further states that during this time construction work of the school building was going on and outside the gate, sand and grit was lying and that the direction of the road to which the truck turned was not open to use by trucks. This witness was working as invigilator as the examinations were going on and this witness went to attend his examination duty after this accident. He admits the presence of speed breaker but states that the place of accident is about 15 yards. He further admits that the truck was loaded but denies ascent in the road towards the place of accident. He states that the degree of the curve where the truck turned was 100 degree. 8. Another witness is PW 6, Shri Girish Chand, who supports the prosecution on the factum of speed, presence of sand and grit in front of the school, standing of the deceased and his friend on the parapet, the pressing of the deceased by the truck and their fall on the ground, sustaining of injuries, as a consequence thereof, by Shri Hira Lal deceased. Another witness is PW 7, who also states that the truck was in high speed and she also heard the cries of the children whereupon she also made noise. She found that the leg of the deceased had come under the tyre of the truck. On her cries, one Rana teacher and another teacher PW 6 came and took out the deceased from underneath the truck and took him to the hospital in the same truck. About the height of the wall, he states, that the height of the same would be about one foot and denies the suggestion of the defence counsel that the width of the parapet was three feet. The existence of the speed breaker at the place of the accident is admitted by PW8. 9. Shri Madho Ram, PW 9, has stated that this road was not avail able for traffic due to the school as well as the existence of the sand and grit. He admits that when one comes from Delhi gate towards the school, there is speed breaker on the main road and there is a curve of 85 degrees to 95 degrees when one goes from the main road towards the school. He further states that this curve is quite spacious. 10. He admits that when one comes from Delhi gate towards the school, there is speed breaker on the main road and there is a curve of 85 degrees to 95 degrees when one goes from the main road towards the school. He further states that this curve is quite spacious. 10. The accused in his statement under section 318 of the Code of Criminal Procedure denies that the injuries to deceased Hira Lal and another boy were caused due to his rash and negligent driving of the truck. He states that school children were playing amongst themselves at that railing during that time and when his truck passed from that place, he heard noise of children from the back side. He stopped the truck and saw that the boy had fallen on the ground after having struck with the rear tyre of the truck. He further states that he took the turn after blowing the horn and that there was a speed breaker and so there was no question of higher speed and that his vehicle was loaded. 11. In defence, the accused produced Shri Brij Bhushan to prove the speed, existence of speed breaker, ascent in the road, students making noise whereupon a boy was found on the road behind the truck at a distance of 10 to 15 feet. The boy had sustained internal injuries not due to the truck but due to their inter se fight. He states that the distance between the speed breaker and the place of occurrence must be 15 yards. He admits that this road is narrow. So far as the height of the parapet in question is concerned, this witness states that height must be 1-1/2 feet. This witness has made an effort to support the case of the accused. DW 2, Shri Ajay Kumar, shows that the truck was moving with normal speed and when it reached the speed breaker, its speed decreased and when it reached the curve, it blew the horn. The deceased and another boy Sunil Kumar were cutting jokes and were grappling near the railing and that due to this grappling, the deceased fell down and came underneath the rear tyre of the truck. After that, the truck was stopped and the deceased was taken into the truck. He denies the suggestion of the prosecution that the front tyre got on to the parapet. After that, the truck was stopped and the deceased was taken into the truck. He denies the suggestion of the prosecution that the front tyre got on to the parapet. In his cross-examination he admitted that the deceased was pressed in between the railing and the truck and that the height of the parapet may be about 9a. DW 3, Shri Chander Kant, supports the accused about the speed being less, existence of speed breaker, blowing of horn when it took turn on the curve, grappling of students and their standing on the parapet and then falling down of Hira Lai. He states that the deceased sustained injury when he fell down and hit the truck but admits that the truck had over-run his foot. DW 4, Shri P. D. Tewari, and DW 5, Shri Jagdish also support the case of the accused relating to speed, speed breaker, gradient of the road and the truck being loaded. 12. The other evidence on the record is Ex. PW 5/A. It is the report by the Inspector, Motor Mechanic, I. T. I. Nahan, dated 15-3-1980 wherein he has reported that the truck was in working order and there was no defect in its working. There is site plan Ex. DX which clearly indicates that the deposition of the defence witnesses about the so-called speed breaker is palpably wrong. Perusal of this report shows that the speed breaker is on the main road. Thereafter there is enough distance before the by-lane starts and then comes another curve where the accident has, in fact, taken place. 13. The doctor in his report has opined that the death of the deceased, Hira Lal, was due to traumatic shock due to rupture of spleen and urinary bladder. 14. The learned Counsel for the accused has stated that the prosecution has failed to establish that the accused was driving the truck rashly and/or negligently. It is further asserted that in order to prove a case under section 304-A of the Indian Penal Code, it is essential that the prosecution brings on record, clear, cogent and convincing evidence to show that the accused was responsible for the occurrence in question. He further submits that the defence witnesses have demolished the case of the prosecution. So, in view of the matter, the judgment of the trial court is correct and must be sustained. 15. He further submits that the defence witnesses have demolished the case of the prosecution. So, in view of the matter, the judgment of the trial court is correct and must be sustained. 15. Perusal of the evidence on the record clearly shows that the sub missions made by the counsel for the accused have not substance and deserve to be rejected. There is clear evidence on the record which conclusively establishes that the accused is wholly responsible for the accident and the consequential death of the deceased. There is direct connection between the act of the accused and the death of the deceased due to the accident. 16. The prosecution has established that school boys are there. It is further established that there is a parapet adjacent to the road with railing beside it and some students, including the deceased Hira Lai and one Girish, were standing there. It has also been established that in front of the school, there were heaps of sand and grit as the construction work in the school was going on. It is further established that after passing through this way, the truck was in speed, though loaded, and then quickly it took a blind turn despite the fact that the road at this place was not narrow. It is further established by the prosecution witnesses that after the truck came on to the parapet, the deceased, Shri Hira Lal, was pressed in between the railing and the truck with the result that he sustained injuries and died, as a consequence, in the hospital. I have no reason to disbelieve the testimony of the witnesses cited by the prosecution. They have comprehensively and conclusively narrated the whole incident and there is no reason to infer that they were not speaking the truth. 17. On the other hand, the witnesses produced by the accused have made every effort to support the case of the accused and their statements are such which clearly indicate that they were neither present on the spot nor they knew anything about the accident. They have only come forward to support the accused and their statements are such which cannot, at all, be believed. 18. There are two parts of section 304-A of the Indian Penal Code. The first part relates to causing of death of any person by any rash act of the accused. They have only come forward to support the accused and their statements are such which cannot, at all, be believed. 18. There are two parts of section 304-A of the Indian Penal Code. The first part relates to causing of death of any person by any rash act of the accused. The second part comes in operation when the death is caused due to negligent act; but in both cases, it should not amount to culpable homicide. The prosecution has either to prove the first part or the second part but there may be cases where both the parts may come in operation simultaneously if the evidence suggests that the act of the accused was not only rash but also negligent which resulted in the death of someone. 19. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause an injury but without intention, to cause injury or knowledge that it will probably be caused The criminality lies in taking the risk of doing such an act with recklessness or being indifferent as to the consequence. Reckless driving or driving in a manner dangerous to public is rashness. In order to see whether it is so, the condition of the road, the amount of traffic at the time and number of persons frequently moving about on the roa4 or expected to bf on the road, are some of the factors to be taken into consideration in assessing the rashness or negligence of the driver. It is the duty of every man who drives a vehicle on the public way, to drive it with such a care and caution as to prevent, as far as possible, any injury to anyone. 20. Criminal negligence is gross and culpable neglect or failure to exercise with reasonable care and proper care to guard against injury either to the public generally or to an individual in particular as non-exercise of this imperative duty on the part of the accused amounts to culpable neglect. 21. Looking to the case and circumstances of this case, it is abundantly clear that the accused was driving the vehicle at a great speed. Even if it is accepted that the speed of the truck was not very high but the evidence, if assessed rightly, the truck was moving with a speed. 21. Looking to the case and circumstances of this case, it is abundantly clear that the accused was driving the vehicle at a great speed. Even if it is accepted that the speed of the truck was not very high but the evidence, if assessed rightly, the truck was moving with a speed. The accused knew that it was a road 14 feet in width being frequented by the school children. There were heaps of sand and grit as the construction work was going on in the school and he was going to negotiate a blind curve. The defence of low or normal speed due to the existence of the speed breaker, does not help the accused because perusal of site plan clearly indicates that the speed breaker is on the main road and the place of accident is sufficiently away from it. Even if it is accepted that the accused had normalised his speed at this place, still the speed could have been easily picked up by the time the place of accident reached. Further, the defence of low speed at this particular time is of no consequence because duty is cast on the driver to be careful so that school boys, who are of adolescent age, may not cross the road as they are usually in the habit of doing so when a moving vehicle approaches. The facts disclose entirely a different story. These young children were just standing on the parapet beside the railing. The accused due to his rash and negligent act not only failed to take care of the existing position preceding the accident but also was so rash in driving the vehicle that he did not negotiate the curve with care and caution with the result that one of its front tyres came on to the parapet and pressed the deceased in between his truck and the railing. Driving, there fore, in such a manner is grossly rash and then negotiating the curve in the alleged manner despite availability of the road is clearly a negligent act on his part. His acts, therefore, attract the provisions of section 304-A of the Indian Penal Code. 22. I am, therefore, of the opinion that the prosecution has succeeded in proving the case against the accused. In view of the matter, the appeal succeeds and is allowed. The judgment of the trial court is set-aside. His acts, therefore, attract the provisions of section 304-A of the Indian Penal Code. 22. I am, therefore, of the opinion that the prosecution has succeeded in proving the case against the accused. In view of the matter, the appeal succeeds and is allowed. The judgment of the trial court is set-aside. The accused is convicted under section 304-A of the Indian Penal Code. 23. Now, the question arises as to what sentence should be awarded to the accused. The offence was committed on 14-3-1980. A period of more than seven years has elapsed. In view of the matter, I do not think it desirable to send the accused to jail. Therefore, the interest of justice would be met if the accused is sentenced to pay a fine instead of jail sentence. I, therefore, impose a fine of Rs. 5,000 on the accused and in default of the payment thereof to undergo rigorous imprisonment for a period of six months. The fine, when realised, be paid to the parents of the deceased Shri Hira Lal. 24. Before parting with the case, I like to observe that the number of motor accidents is multiplying enormously. It is very often seen that persons who drive heavy vehicles have scant regard for the safety of the pedestrians and those using smaller vehicles. In many cases, the victims are small school going children who make use of the roads at a number of occasions during day time. Examples are not wanting where schools are seen to be located on the road side. It is high time that authorities concerned with the regulation of motor transport take steps to eliminate lapses in this regard and take care of places which are most vulnerable to such consequences. Appeal allowed.