JUDGMENT Arun Kumar Goel, J.:- Heard learned counsel. This appeal is directed against the judgment dated 8.5.1997 passed by Judicial Magistrate 1st Class, Bilaspur, in case No.33/2 of 1995. By means of impugned judgment! respondent was acquitted of the offences under Sections 279/337 of the I.P.C., j hence this appeal against acquittal. 2. In the instant case accident is admitted, spot as it existed and shown in the photographs is also admitted by the respondent. Similarly MLCs of injured driver PW-8 as well as Krishnu Ram being Ex.PA and PB have also been admitted. Admitted photographs are there on the record. 3. Prosecution case as made out from the record is that Charan Singh PW-8 (hereinafter referred to as the complainant) was driving Maruti Van bearing registration No.HPY-814. On 5.10.1992 he was plying this van from Bilaspur to Jawalaji along with passengers. According to him passengers were Constable Ramesh Kumar and one Krishnu Ram. When it was at Dalli on way from Ghaghas to Ghumarwin, a truck bearing registration No.HP-23-1547 was coming from opposite direction at a fast speed and struck on the drivers side of the Van and stopped 30- 40 feet ahead. This resulted in causing injury to Krishnu Ram as well as to PW-8. Both of them were set for treatment to District Hospital, Bilaspur. Statement of complainant was recorded vide Ex.PW-4/A under Section 154Cr.P.C. This resulted in loding of FIR Ex.PW-4/B. After registration of the case, spot was inspected and spot map Ex.PW-7/A was prepared by the Investigating Officer. Broken class pieces of Maruti Van HPT-814 were taken into possession from the spot vide Ex.PW-7/B. Police got the Van mechanically examined from PW-1 Rajinder Kumar, mechanic of Beri. He gave his report Ex.PW- I/A. According to him steering system, clutch system and brake system were in order. He opined that accident was the result of brake of the truck being not in order. Krishnu Ram died subsequently. There is no evidence on record to suggest that the death was directly attributable to the accident in question. 4. In the aforesaid background respondent was tried for having caused accident due to rash and negligent driving on his part causing injuries to both, i.e. Krishnu Ram as well as to the complainant. Trial Court after conclusion has acquitted the respondent, hence this appeal. 5. 4. In the aforesaid background respondent was tried for having caused accident due to rash and negligent driving on his part causing injuries to both, i.e. Krishnu Ram as well as to the complainant. Trial Court after conclusion has acquitted the respondent, hence this appeal. 5. It was urged by the learned Assistant Advocate General, that trial Court has completely mis-read an mis-construed the evidence on record and thus fallen into error while passing the impugned judgment which is no sustainable in the circumstances of the case. She laid great emphasis on the statements of PW-1 Rajinder Kumar mechanic, his report Ex.PW-1, PW-2 Ramesh Kumar as well as PW-5. 6. In the instant case PW-1 while appearing as witness has stated that he inspected the taxi HPY-814 and qua it his report is Ex.PW-I/A which is in his hand and is signed by him. Per him truck was there on the spot. It was not got examined by the police from him. Strangely enough despite that, he has opined in Ex. PW-l/A that the accident was attributable due to brakes of the truck No.HP-23-1547 being not in order. When he had not examined the truck in question, it is not understood on what basis he gave his opinion to that effect. 7. PW-2 Ramesh Kumar constable has clearly stated that near Dalli on Ghagas to Ghumarwin road, a truck was coming at a high speed and straightway dashed into the taxi on its drivers side and stopped 30- 40 feet ahead of the site of accident. He admitted that at the spot there is a blind curve and road is narrow there. He, however, expressed ignorance as to whether truck was loaded or not or whether the truck had its brakes or not. He has again gone on record to say that truck was in first gear and was on down-hill journey. In which gear the taxi was, he could not say. He has opined that accident occurred by chance and there was no mistake on the part of both the drivers. 8. Other material witness is Puran Chand, retired Sub Inspector, who had investigated the case and had prepared spot map Ex.PW-7/A and had taken into possession pieces of glasses vide memo Ex.PW-7/B. He also got the Van mechanically examined as also obtained MLCs of both the injured, got photographs Ex.P-1 to P-8 prepared. 8. Other material witness is Puran Chand, retired Sub Inspector, who had investigated the case and had prepared spot map Ex.PW-7/A and had taken into possession pieces of glasses vide memo Ex.PW-7/B. He also got the Van mechanically examined as also obtained MLCs of both the injured, got photographs Ex.P-1 to P-8 prepared. In cross examination he denied the suggestion on behalf of defence that the accident was the result of negligence on the part of the taxi driver being on the wrong side of the road. After receipt of ruka, FIR was lodged and investigation was undertaken. 9. PW-8 is the complainant. He has pledged his oath. According to him truck was at a speed of 40-50 KMPH. According to him he was on the correct side of the road and was on its Kachha portion. Driver of the truck (respondent) hit the Van. He sustained injury on the right side of his back. Both, he and Krishnu Ram were brought to Bilaspur where his statement Ex.PW-4/A was recorded. He has admitted that on seeing the truck from a distance, he had taken his Van. to the Kachha portion. He denied the suggestion that the horn was blown, though he admits that road being narrow on the spot, two vehicles could not pass. He admitted that driver of the truck applied the brakes, but before the truck halted, accident had taken place. He as well as PW-7, investigatng officer, both have admitted that when the police came to the spot both vehicles had been removed from the spot. In this view of the matter, no reliance can be placed on Ex.PW-7/A, the spot map. As such by excluding the same, case of the prosecution has to be examined. Here it may be appropriate to refer to the stand of the respondent taken by him in his statement under Section 313 Cr.P.C. Questions No. 11 & 12 with their respective answers are as under:- "Q.No. 11 Why the prosecution witnesses have deposed against you? Ans: Gavahon Ne Dushmani Ki Bajah Mere Khilaf gavahi Di Hai". Q.No. 12. Do you want to say anything else? Ans: "Main Bekasur Huon.Yeh Hadsa Taxi Driver Ki galti Ba Laparbahi Sai hua Hai." 10. Ans: Gavahon Ne Dushmani Ki Bajah Mere Khilaf gavahi Di Hai". Q.No. 12. Do you want to say anything else? Ans: "Main Bekasur Huon.Yeh Hadsa Taxi Driver Ki galti Ba Laparbahi Sai hua Hai." 10. Prosecution had put up specific case against the respondent to the effect that on 5.1 Q.I 992 due to his rash and negligent driving of truck at village Dalli he struck against the taxi in quesiton which was being driven by the complainant. This resulted in causing injury to the complainant as well as to Krishnu Ram. With a view to support its case, prosecution examined number of witnesses reference to which has been made hereinabove. 11. When photographs Exts. P-l to P-8 are seen, it is clear that the taxi in question was hit on the drivers side causing damage to its entire side. This is what is made out from Ex.P-1. No doubt spot had been changed but respondent does not dispute the correctness of the photographs. 12. In this behalf it may not be out of place to mention that the taxi in question was got mechanically examined and its system were in order. From the tenor of cross examination of the PWs a case of brake system of the truck being not in order appears to have been set-up. The best person to say something in that behalf was the owner of the vehicle by appearing in the witness box that the truck in question was being regularly maintained and thus the failure of brakes was due to unforeseen circumstances thereby there being either no rashness or negligence on the part of the driver. At this stage submission of Mr. Vinod Sharma needs to be noted. According to him, PW-2 has stated that the truck in question was in first gear and was down-hill, therefore, it was not possible to have driven the same at a speed of 40-50 KMPH, as was stated by the complainant while appearing as PW-8. This part of the statement of PW-2 is without any substance reason being that the vehicle in which he was travelling, he was unable to state as to in which gear it was. Strangely enough he has spoken about the gear in which the truck coming from opposite direction was coming and had caused accident. This part of the statement of PW-2 is without any substance reason being that the vehicle in which he was travelling, he was unable to state as to in which gear it was. Strangely enough he has spoken about the gear in which the truck coming from opposite direction was coming and had caused accident. So far saying by this witness that there was no fault of both the drivers is concerned, it is his opinion which is of no consequence in the present case as it is for the court to determine the negligence on the part of either of the drivers on the basis of the materials before it. 13. So far opinion given by PW-1 Rajender Kumar, mechanic regarding accident being the outcome of brakes of the truck being out of order is concerned, again it is superfluous being surplus-age. In his examination-in-chief he has stated that he was not called upon to examine the truck in question. How and on what basis he opined regarding the brakes of the truck cannot be made out from the file. This part of the evidence appears to have impressed the learned trial Court below. As already noted it is not even the stand of the respondent in his statement under Section 313 Cr.P.C. He is specific that accident was the outcome of negligence on the part of the tax driver as also the witnesses were inimically disposed towards him. Again when a reference is made to the cross examination of all the PWs, not a single suggestion has been given to any one of them regarding the accident being the result of negligence on the part of driver of the Van, suffice it to say that there is no evidence to that effect. 14. In order to establish the guilt of the respondent, prosecution is required to show that there was want of due care and caution on the part of the respondent while he was driving the truck at the time of accident in question. What will constitute a rash and negligent act will depend upon the circumstances of each case. Where road is hilly, narrow and zigzag a speed of 20-25 K.M.P.H. may be rash and failure to take proper care to control the speed will be an act of negligence. 15. What will constitute a rash and negligent act will depend upon the circumstances of each case. Where road is hilly, narrow and zigzag a speed of 20-25 K.M.P.H. may be rash and failure to take proper care to control the speed will be an act of negligence. 15. Negligence would ordinarily mean breach of a duty caused by an omission to do something which a reasonable man guided by those considerations which ordinarily regulate conduct of human affairs would do or the doing of something which a prudent and reasonable man would not do. 16. Criminal negligence is gross and culpable neglect or failure to take reasonable and proper care as well as caution to guard against injury either to the public generally or to an individual in particular. Which having regard to all circumstances out of which the charge has arisen it was imperative duty of the accused person to have adopted. 17. Rashness under criminal law is hazardously dangerous or wanton act with the knowledge that it is so and that it may cause injury though without any intention to or knowledge to cause the same. In fact the element of criminality lies in committing such an act with recklessness and without bothering for its consequences. Driving at an excessive speed on a public road would be prima facie evidence of rash driving in determining whether the person is rash or negligent. The standard of reasonable care is that which is reasonably to be demanded in the circumstances, if still mishap occurs, the person cannot be held guilty of rashness. 18. With a view to show that the act was either rash or negligent what needs to be established is something more than an error of judgment. In case of negligence there is an element of positive duty without bothering for consequences of such an act. Both the words rashness and negligence are not synonymous. There is duty on every user of road to make a reasonable use of it for the purposes of passing along it can to allow others to do so. A person driving a car in a given situation has a right to reasonably expect the person negligently loitering on the road to give way to him when the person has seen the car and having been signaled. 19. A person driving a car in a given situation has a right to reasonably expect the person negligently loitering on the road to give way to him when the person has seen the car and having been signaled. 19. Both rash or negligent acts have to result in endangering human life so as to invoke the provisions of Section 2791.P.C. In the instant case the court cannot loose site of the fact, keeping in view the nature of the road where the accident had taken place. May be that for the purpose of location of the vehicles Ex.PW-7/A, the spot map cannot be looked into. 20. There is clear cut evidence establishing the after seeing the truck in question PW-8 had moved his taxi Van on the correct side of the road on its Kachha portion. Despite this position, truck had hit it. In view of this evidence 1 being there on record, acquittal ordered by the trial Court cannot be sustained. 21. It was also urged as an alternative submission on behalf of the respondent that if the court comes to the conclusion that the respondent is guilty of having committed the offences, keeping in view the time gap he may be extended the benefit of Probation of Offenders Act. This cannot be done in the light of two decision of the Honble Supreme Court reported in Aitha Chander Rao v. State of Andhra Pradesh 1981 (supp) SCC 17 and Dalbir Singh v. State of Haryana & Ors. AIR 2000 SC 1677. 22. Respondent has taken a definite stand that the accident was the result of rash and negligent driving on the part of the taxi driver. However, there is nothing to support this particular stand, particularly when prosecution version has been accepted by this court. 23. In view of the aforesaid discussion this appeal deserves to be allowed and is ordered accordingly. Thus the judgment of the trial Court is set aside and respondent is held to be guilty of having committed offences under Sections 279/337 I.P.C. Accordingly he is sentenced to pay a fine of Rs.5,000/- under Section 279 I.P.C. and to undergo simple imprisonment of one month in the event of default of payment of fine and also to pay a fine of Rs.5,000/- under Section 337 I.P.C, and in default of payment whereof, he shall undergo simple imprisonment for one month. The appeal is allowed in the aforesaid terms.