N. S. VEERABHADRAIAH, J. ( 1 ) THIS appeal is by the state, assailing the judgment of acquittal of the accused in C. C. No. 403/1996, dated 20-2-1998 for the offences under Sections 279, 337, 338, 304-A of IPC r/w. Section 134 and 187 of M. V. Act on the file of the learned J. M. F. C. III Court, Belgaum. ( 2 ) THE case of the prosecution in brief is as follows : on 6-5-1996 at about 4. 15 p. m. accused madivalappa Fakirappa Kodliwad being the driver of the passenger tempo bearing regn. No. KA 24-1090 was proceeding towards bagewadl. On account of his rash and negligent driving of the tempo. Near Khadri Cinema talkies of Bagewadi village limits dashed Ratnabai Krishnaji Karandi-PW. 19 from behind, who was proceeding on the footpath. The vehicle further proceeded towards its right side and toppled. As a result, shivaputra Shivanagouda and another ramesh Gyanappa Dandavate (cleaner of the tempo) died and also resulting injuries to 13 passengers. The injured P. W. 1-Mohammed rafiq Abdulgani Godawad lodged a complaint as per Ex. Pl with Bagewadi police. The A. S. I. of Bagewadi Police station p. W. 26-Mahantayya Iswarayya muppinamath registered a case in Crime No. 74/1996 for the offences under Sections 279, 337, 338, 304-A of IPC and under Section 134 r/w. Section 187 of M. V. Act against the driver of the tempo. The Circle inspector P. W. 27-Basavantappa Mallappa hoogar visited the place of the accident, prepared the spot mahazar-Ex. P3. Whereas, the Inquest mahazars Exs. P2 and P4 were prepared by the sub-inspector. The clothes of the deceased were ceased under separate mahazar. The injured persons were sent to the District Hospital, Belgaum, for treatment. He secured the wound certificate as well as the post-mortem report of 2 deceased persons as per Exs. P14 and P16, collected the M. V. I. report- Ex. 15, arrested the accused and released on bail. After completion of the investigation, filed the charge-sheet. The presence of the accused was secured, recorded his plea for the offences under Sections 279, 337, 338, 304-A of IPC and under section 134 r/w. Section 187 of M. V. Act. He pleaded not guilty and claimed to be tried. The prosecution in all examined P. Ws. 1 to 27, marked Exs. P1 to P33 and produced m. Os. 1 to 6. He pleaded not guilty and claimed to be tried. The prosecution in all examined P. Ws. 1 to 27, marked Exs. P1 to P33 and produced m. Os. 1 to 6. The statement of the accused was recorded under Section 313 of crpc. The defence is one of total denial. The learned J. M. F. C. for the reasons recorded in his Judgment acquitted the accused in respect of all the offences. It is this Judgment of acquittal, which is questioned in the present appeal. ( 3 ) LEARNED High Court Government pleader Sri. Reddy submitted that the reasoning of the learned J. M. F. C. in acquitting the accused suffers from various infirmities. The testimony of the prosecution witnesses shows the manner in which the accident took place. Whereas, the vehicle dashed against a pedestrian proceeding on the footpath, in front of Khadri Cinema talkies. The vehicle further proceeded and toppled. Thereby, the trial Court has lost sight of the above facts. Spot Mahazar Ex. P3 reveals that the width of the road is 24 ft, with footpath of 6 ft. on either side and at the place of the accident little down gradient towards Bagewadi with little curve and a board has also put up indicating to "go slow". With all the above facts on record, the learned J. M. F. C. without properly appreciating the evidence of the witnesses erred in acquitting the accused. Further submitted that the accident is not on account of mechanical defect. It is only on account of rash and negligent driving of the tempo by the accused dashed the lady resulting in the death of 2 persons and injuries to 13 passengers. Further submitted that when the act of the driver itself is dangerous, which is in rash and negligent manner, the acquittal of the accused is a perverse judgment. Therefore, prayed to set aside the judgment of acquittal by allowing the appeal and convicting for the charges levelled. ( 4 ) LEARNED counsel Sri Ravi B. Naik for the accused submits that the mere driving of the vehicle at a high speed itself is not a rash and negligent act. The evidence of the witnesses shows that in order to save the life of the lady the accused applied sudden break. Therefore, the vehicle was toppled, resulting in the death of 2 persons and injuries to the passengers in the vehicle. The evidence of the witnesses shows that in order to save the life of the lady the accused applied sudden break. Therefore, the vehicle was toppled, resulting in the death of 2 persons and injuries to the passengers in the vehicle. For which, the rash and negligent act cannot be attributed to the accused. Also submits that the evidence of the prosecution witnesses is inconsistent with one another. Accordingly, justified the Judgment of acquittal and prayed to dismiss the appeal. ( 5 ) IN the light of the submissions, the point for consideration that arises; whether the learned J. M. F. C. III Court, belgaum, is justified in acquitting the accused with the reasoning that the accused was not rash and negligent in driving the vehicle though resulted in the death of 2 persons and injuries to the passengers? If so, liable to be interfered with? what Order? ( 6 ) IT is an undisputed fact that the accused was the driver of passenger tempo bearing No. KA 24-1090 at the time of the accident and that he was driving the tempo with passengers from the side of Belgaum towards Kittur. It is in the limits of Bagewadi village, near Khadri Cinema Talkies the accident took place. The allegations of the prosecution is that the tempo was driven in a rash and negligent manner, dashed P. W. 19 Ratnabal Krishnaji Karandl and P. W. 21- shankara Devindrappa Kambar from behind near Khadri Cinema Talkies, resulting injuries. The tempo proceeded further to its right side and toppled. As a result, 2 passengers in the tempo viz,, Shivaputa Shivanagouda naikar and another Ramesh Gyanappa dandavate (cleaner of the tempo) died. Also resulted in injuries to 13 other persons. ( 7 ) THE Court is now required to scrutinize the testimony of the prosecution witnesses so as to record a finding as to whether the accused had driven the tempo in a rash and negligent manner so as to attract the ingredients of the charges levelled. The prosecution relied on the evidence of P. Ws. 19 and 21 to prove the following facts : (I) The tempo came from behind and dashed. (II) P. W. 1 complainant speaking of the fact of the accused driving the vehicle in a rash and negligent manner. (III) Ex. P3-Spot mahazar prepared by the investigating officer. The prosecution relied on the evidence of P. Ws. 19 and 21 to prove the following facts : (I) The tempo came from behind and dashed. (II) P. W. 1 complainant speaking of the fact of the accused driving the vehicle in a rash and negligent manner. (III) Ex. P3-Spot mahazar prepared by the investigating officer. (IV) P. W. 24- Prakash Madav Shanabag speaks of the fact of inspecting the vehicle and issuing the M. V. I. report Ex. P15. (V) The post-mortem reports-Exs. P14 and P16 and the wound certificates Exs. P8 to P13 and P17 to P32 in respect of the injured persons. ( 8 ) IT is in the evidence of Sub-Inspector, p. W. 26-Mahantayya Ishwarayya muppinamath that on the complaint of P. W. 1-Mohammed Rafiq Abdulgani Godawad, he registered a case in Crime No. 74/1996 on 6-5-1996 for the offences under Sections 279, 337, 338, 304-A of IPC and under Section 134 r/w. Section 187 of M. V. Act. The evidence of Circle Inspector, P. W. 27- basavantappa Mallappa Hoogar shows that he visited the spot and prepared the inquest mahazars as per Exs. P2 and P4. Whereas, the evidence of P. W. 2-Sangappa padappa Bodaki and P. W. 3-Nagappa sangappa Bodaki shows that the police prepared the spot mahazar-Ex. P6. Though P. Ws. 4 and 5 have turned hostile regarding preparing of the inquest mahazar, the evidence of the investigating officer shows that he conducted inquest on 2 dead bodies, the said fact is also proved by the medical evidence i. e. , post-mortem reports Exs. P14 and p16. From the evidence of P. W. 23-Dr. Triyambak and P. W. 25-Dr. Venkappa, the doctors who conducted the post-mortem have clearly opined that the death was on account of haemorrhage and shock as a result of injury to vital organs to Ramesh gyanappa Dandavate and the death of shivaputra Shivanagouda Naikar was due to shock as a result of cerebra vascular haemorrhage. It is in the evidence of P. W. 22-Dr. Jayashree B. Yadawad who examined the injured persons viz. , P. W. 11 - mohammedsafi Mugatasab Mokashi, P. W. 12-Geeta Ashok Pattar, P. W. 13-Maiboob ibrahimsab Hunasikattl, P. W. 16- kurusiddabanu Attar, P. W. 17-Khasambi and P. W. 18- Masabbi that she found injuries and issued the wound certificates Exs. P8. P9, P10, PH. P12 and P13 respectively. Jayashree B. Yadawad who examined the injured persons viz. , P. W. 11 - mohammedsafi Mugatasab Mokashi, P. W. 12-Geeta Ashok Pattar, P. W. 13-Maiboob ibrahimsab Hunasikattl, P. W. 16- kurusiddabanu Attar, P. W. 17-Khasambi and P. W. 18- Masabbi that she found injuries and issued the wound certificates Exs. P8. P9, P10, PH. P12 and P13 respectively. ( 9 ) IT is in the evidence of P. W. 25-Dr. Venkappa that he examined P. W. 1 Mohammed rafiq Abdulgani Godawad, P. W. 8- balappa Veerabasappa Kedunoor, P. W. 14 - Doddawwa Veerabasappa Kedunoor, P. W. 9-Yellappa Rudrappa Talawar, P. W. 15- subash Ganapati Uppare, P. W. 10-Ashabi rajekhan Pathan, Sameera Rajekhan pathan, P. W. 11-Mohammedsafi Mugutasab mokashi, P. W. 12- Neetha Ashok Pattar, P. W. 13 Mehaboob Ibrahimsab Hunasikatti, p. W. 16-Kurusiddabanu Attar, P. W. 17- khasambi Jamadar, Ashabi Urpa Musabi mugtasab, P. W. 19- Rathnabi Krishnappa karandi, P. W. 20 Fakiragouda baswanagouda Patil and P. W. 21-Shankar devindrappa Kambar. On examining them dr. Venkappa found injuries as a result of the accident and issued injury certificates exs. P17, P18, P19, P20, P21, P22, P23, P24. P25, P26, P27, P28 P29, P30, P31 and P32 respectively. Thus from the evidence of P. W. 23 Dr. Triyambak as well as the evidence of P. W. 25 Dr. Venkappa establishes the fact that as the vehicle met with the accident resulting in the death of 2 persons and injuries to others. ( 10 ) THE evidence of P. W. 19 Ratnabal krishnaji Karandi shows that on the day of the accident at about 4. 15 p. m. she was going on the left side of kutcha road {foot path) at Bagewadi. The tempo came from behind and dashed her. As a result, she suffered injury on her leg. Her evidence reveals that at the time of the accident no other vehicles were coming from the opposite side. It is also in her evidence that 2 vehicles can easily be driven on the tar road. To establish the fact that she suffered Injury, the prosecution has produced injury certificate ex. P30 issued by P. W. 25-Dr. Venkappa. On a perusal of Ex. P30 it shows that P. W. 19-Ratnabai Krishnaji Karandi had suffered swelling over the left ankle. It is also in her evidence that 2 vehicles can easily be driven on the tar road. To establish the fact that she suffered Injury, the prosecution has produced injury certificate ex. P30 issued by P. W. 25-Dr. Venkappa. On a perusal of Ex. P30 it shows that P. W. 19-Ratnabai Krishnaji Karandi had suffered swelling over the left ankle. Her evidence clearly establishes the fact that while she was proceeding towards Bagewadi on the kutcha road the tempo in question came from behind and dashed. As a result, she suffered injuries. It is in the evidence of P. W. 21-Shankar Devindrappa Kambar that at the time of the accident he was accompanying his sister P. W. 19 Ratnabal Krishnaji karandi and were proceeding on kutcha road, the tempo in question came and dashed. As a result, he lost his consciousness and regained at Bagewadi Hospital. The said fact is also proved by the medical evidence. ( 11 ) IT is in the evidence of P. W. 1-Mohammed rafiq Abdulgani Godawad that he was travelling in the tempo towards Kittur. When the tempo reached the limits of bagewadi in front of cinema talkies, it was driven at a speed of 60 k. m. per hour and toppled towards its right side. As a result, he and other passengers sustained injuries and also resulting in the death of 2 persons. He has also stated that it is thereafter he lodged a complaint with the Bagewadi Police and a case was registered. Similarly, all the injured persons have categorically stated that they were sitting inside the tempo and travelling whereas, the vehicle in question was driven at a high speed. Thus from the testimony of P. Wl-Mohammed Rafiq abdulgani Godawad and other injured persons it evidences the fact that the vehicle in question was driven at a high speed. ( 12 ) IT is well-settled principle that the speed itself is not a criteria to record a finding that the driver is responsible for such act. But, in the present case, the spot mahazar-Ex. P3 shows that at the place of the accident, the width of the road is 24 ft. with footpath margin of 6 ft. on either side. The vehicle in question was proceeding towards north i. e. , towards down gradient and the road is little curve towards its right side. But, in the present case, the spot mahazar-Ex. P3 shows that at the place of the accident, the width of the road is 24 ft. with footpath margin of 6 ft. on either side. The vehicle in question was proceeding towards north i. e. , towards down gradient and the road is little curve towards its right side. That apart, the spot mahazar shows that a board is also put up at the place of the accident indicating to "go slow". It is in the evidence of P. Ws. 19 and 21 that while they were proceeding on the right side of the kutcha road (footpath), the driver of the tempo dashed P. W. 19- Ratnabal Krishnaji karandi and P. W. 21 Shankar Devindrappa kambar from behind causing injuries, the tempo further proceeded and toppled on to its right side, which act clearly establishes the rash and negligent driving of the tempo by its driver. To prove the rash and negligent act"there must be hazardous act to show that such act of the driver is dangerous and extra dangerous in respect of the users of the road, whereas the criminal negligence is the gross and culpable neglect or failure to exercise the required reasonable and proper care and precaution as against the other users of the road. " ( 13 ) IN the present case, if the accused were to have had exercised little care in respect of the other users of the road by reducing the speed of the tempo, it would have definitely avoided the risk and also avoided the accident. But, the tempo proceeded to its right side and dashed P. Ws. 19 and 21 resulting injuries to them and further proceeded to its right side and toppled. As a result 2 persons died and 13 persons suffered injuries. On a careful scrutiny of the testimony of P. Ws. 19 and 21 as well as the injured witnesses and that of the complainant p. W. 1- Mohammed Rafiq Abdulgani godawad, clearly establishes the fact that the accident resulted only on account of the rash and negligent driving of the tempo by the accused, which fact was lost sight by the trial Court and resulted in the miscarriage of justice in acquitting the accused. If the learned J. M. F. C. were to have properly scrutinized the testimony of P. Ws, 19 and 21 as well as the injured persons, would not have acquitted the accused. It is seen from the trial Court judgment that the testimony of the prosecution witnesses have not been properly scrutinized. That apart, the learned J. M. F. C. failed to take note of the spot mahazar Ex,p3. It clearly reveals that the width of the road, the location of the Cinema Talkies, the sign board indicating to "go slow" and also the curvature of the road and thereby crept into erroneous reasoning, which resulted in the acquittal of the accused. ( 14 ) THOUGH it is the defence of the accused that the accident was an inevitable, he did not choose to enter the witness-box to speak as to the manner of the accident that took place. That apart, after the accident, the accused sped away without giving intimation as required under Section 134 of the M. V. Act. ( 15 ) ON scrutinizing the testimony of P. Ws. 19, 21 and other injured witnesses nothing is elicited so as to disbelieve or discard their evidence. The very act of driving of the vehicle on the right side kutcha road itself is a dangerous act, the vehicle further proceeding and dashing P. Ws. 19 and 21 from behind is sufficient to satisfy the ingredients of the offence charged. For the foregoing reasons, the Judgment of acquittal of the accused In respect of the offence charged is hereby set aside by allowing the appeal. The accused Is found guilty for the offence under Sections 279, 337, 338, 304-A of IPC and Section 134 r/w. Section 187 of m. V. Act. Accordingly, convicted. Heard both side learned counsel regarding sentence. The learned counsel for the accused prays to take a lenient view as the case is of the year 1996 and to impose minor penalty. The learned High Court Government pleader prays to impose maximum sentence. The accused is convicted for all the offences and sentenced as follows : for the offence under Section 279 of IPC, the accused is sentenced to undergo R. I. for a period of 3 months for the offence under Section 337 of JPC, the accused is sentenced to undergo S. I. for a period of one month. The accused is convicted for all the offences and sentenced as follows : for the offence under Section 279 of IPC, the accused is sentenced to undergo R. I. for a period of 3 months for the offence under Section 337 of JPC, the accused is sentenced to undergo S. I. for a period of one month. For the offence under Section 338 of IPC, the accused is sentenced to undergo R. I. for a period of one month. For the offence under Section 304-A of ipc, the accused is sentenced to undergo R. I. for a period of six months and to pay a fine of Rs. 2,000-00. In default of payment of fine, to under go R. I. for a further period of 30 days. For the offence under Section 134 r/w section 187 of M. V. Act, the accused is sentenced to undergo S. I. for a period of two months. All the sentences shall run concurrently. The bail bond of the accused is cancelled. The trial Court is directed to take the accused into custody to undergo the sentence as ordered. The office is directed to return the records forthwith. Appeal allowed. --- *** --- .