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2022 DIGILAW 297 (JK)

Showkat Ahmad Nadaf v. State of J&K

2022-06-03

SANJAY DHAR

body2022
JUDGMENT : Sanjay Dhar, J. – The petitioner has filed the instant criminal revision petition against order dated 11.08.2018 passed by learned Principal Sessions Judge, Srinagar (hereinafter referred to as the appellate court), whereby the learned Sessions Judge has upheld the judgment of conviction/sentence passed by the learned Judicial Magistrate, 1st Class (2nd Additional Munsiff), Srinagar (hereinafter referred to as the trial court), on 20.08.2013, whereby the petitioner has been convicted for offences under Section 279, 304-A RPC and sentenced to imprisonment for a period of one year and a fine of Rs.2000/- in proof of offence under Section 304-A RPC and for a period of two months and a fine of Rs.500/- in proof of offence under Section 279 RPC. 2. The record of the case reveals that on 12.05.2001, the petitioner was driving a Maruti car bearing No.DDU-6258. A minor girl, namely, Rubeena, was knocked down by the said vehicle, as a result of which she received fatal injuries leading to her death. FIR No.85/2001 for offences under Section 279, 304- RPC was registered and the investigation of the case was set into motion. After completing investigation of the case, the charge sheet was laid against the petitioner before the learned trial court. The petitioner was charged for offences under Section 279/304-A RPC and the prosecution was directed to lead evidence in support of the charges. Out of 14 witnesses cited in the challan, the prosecution examined only 06 witnesses, namely, PW-1 Noor Mohammad Malla, PW-2 Mohammad Latief Dar, PW-3 Farooq Ahmad Malik, PW-5 Mohammad Ashiq Ganai, PW-6, Mohammad Ashraf Malik and PW-9, Ali Mohammad Kaloo. After the closure of evidence of the prosecution, statement of the petitioner/accused under Section 342 of the J&K Cr. P. C was recorded. The learned trial court thereafter passed the judgment dated 20.08.2013, whereby the petitioner/accused was convicted. 3. The aforesaid judgment of conviction was challenged by the petitioner by way of an appeal before the learned Principal Sessions Judge, Srinagar. The appeal has been dismissed by the appellate court in terms of the impugned judgment dated 10.08.2018, whereby the judgment of the trial court has been upheld and the appeal has been dismissed. 4. Feeling aggrieved of the impugned judgment of the trial court and the appellate court, the petitioner has filed the instant revision petition. 5. The appeal has been dismissed by the appellate court in terms of the impugned judgment dated 10.08.2018, whereby the judgment of the trial court has been upheld and the appeal has been dismissed. 4. Feeling aggrieved of the impugned judgment of the trial court and the appellate court, the petitioner has filed the instant revision petition. 5. It has been contended by the petitioner that the learned appellate court and the learned trial court have not adopted a proper procedure while passing the impugned judgments as the same are based on incorrect position of law. It has been further contended that the trial court and appellate court have committed patent illegality which has the effect of vitiating the impugned judgments. It is also contended that the learned courts below have ignored the relevant evidence and have misread the material evidence. 6. I have heard learned counsel for the parties and perused the material on record including the record of the trial court. 7. Although many grounds have been urged in the revision petition but the main grounds that have been urged by learned counsel for the petitioner are that the alleged occurrence has not been witnessed by any of the prosecution witnesses, inasmuch as all the witnesses have stated that they have not seen the occurrence. It has also been argued that the learned courts below have placed reliance upon statement of the petitioner/accused recorded under Section 342 of the Cr. P. C and the same could not have been done when there was no evidence on record to prove the prosecution case. It has also been argued that the prosecution has failed to establish rashness or negligence on the part of the petitioner/accused which is gist of offences under Section 279 and 304-A RPC. 8. As already noticed, the prosecution has examined 6 out of 14 witnesses cited in the challan. Out of these 6 witnesses, only one witness, namely, PW-2, Mohammad Latief Dar, has actually seen the occurrence. Other prosecution witnesses, namely, Noor Mohammad Malla, Farooq Ahmad Malik, Mohammad Ashiq Ganai, Mohammad Ashraf Malik and Ali Mohammad Kaloo, have not actually seen the occurrence. So, the statement of PW-2, Mohammad Latief Dar, assumes significance in the context of this case and is required to be noticed. 9. Other prosecution witnesses, namely, Noor Mohammad Malla, Farooq Ahmad Malik, Mohammad Ashiq Ganai, Mohammad Ashraf Malik and Ali Mohammad Kaloo, have not actually seen the occurrence. So, the statement of PW-2, Mohammad Latief Dar, assumes significance in the context of this case and is required to be noticed. 9. PW-2, Mohammad Latief Dar, has stated that at the relevant time, he was present near the door of his shop and he saw petitioner/accused driving a Maruti car at a high speed. He further stated that the vehicle in question knocked down a girl and she came underneath the tyre of the vehicle. He has gone on to state that he failed to take out the child from underneath the tyre. He has further stated that 2/3 more persons helped him and they took out the girl child and rushed her to the hospital where she was declared as dead. He has also stated that the accident took place due to negligence of the petitioner/accused as he was driving the vehicle at a high speed. The witness in his cross-examination has stated that the accident took place at about 10.30 AM and the vehicle was plying in forward direction. He went on to state that initially the victim was hit by the vehicle and thereafter the vehicle ran over her head due to which blood oozed from her ears. He also stated that the petitioner/accused did not run away from the spot. He has gone on to state that he does not know what was the speed of the vehicle. He has further stated that width of the road at the site of the accident is about 10 to 12 feet. He has also stated that the petitioner/accused was alone in the vehicle and that the age of the deceased was about three years. 10. From the aforesaid statement of the eye witness, PW-2, Mohammad Latief Dar, it is clear that the deceased girl was knocked down by the vehicle that was being driven at the relevant time by the petitioner/accused. It is also established from the statement of PW-2, Mohammad Latief Dar that as a result of the injuries sustained by the deceased due to the accident, her death took place. 11. It is also established from the statement of PW-2, Mohammad Latief Dar that as a result of the injuries sustained by the deceased due to the accident, her death took place. 11. The statement of the PW-2, Mohammad Latief Dar is also corroborated by the statement of PW Noor Mohammad Malla, who has stated that at the relevant time, he heard some noise and when he came out of his shop, he saw the victim girl in a pool of blood. He has also stated that the victim was taken to the hospital in an auto rickshaw where she was declared as “brought dead”. He went on to state that it is the petitioner/accused who was driving the vehicle, though he has stated that he has not seen the occurrence with his own eyes. Similarly, PW Mohammad Ashraf Malik has also corroborated statement of PW-2, Mohammad Latief Dar, by stating that on the day of occurrence, 5/6 people boarded his auto rickshaw and they took the victim child to the hospital in his auto rickshaw. He has stated that in the hospital, the victim child was declared brought dead. PW-Ali Mohammad Kaloo has also supported the statement of the eye witness PW-2, Mohammad Latief Dar, by stating that he was at a distance of 150 feet from the spot of occurrence when heard a noise. He went on spot and saw the victim in an injured condition who was being taken to the hospital. 12. From the aforesaid evidence on record, it is clear that the prosecution has been able to establish beyond reasonable doubt that the petitioner/accused was at the wheels while his vehicle knocked down the deceased, who happens to be a minor child. It is also established that as a result of the injuries sustained by the deceased due to the accident, she breathed her last. When these incriminating circumstances were put to the petitioner/accused at the time of recording of his statement under Section 342 of the J&K Cr. P. C, he admitted that at the relevant time he was learning driving and that he does not know how the girl child came underneath his vehicle. Thus, when statement of the accused/petitioner recorded under Section 342 of the Cr. P. C is read in the light of the prosecution evidence narrated hereinbefore, it can safely be stated that the petitioner/accused was responsible for the accident. 13. Thus, when statement of the accused/petitioner recorded under Section 342 of the Cr. P. C is read in the light of the prosecution evidence narrated hereinbefore, it can safely be stated that the petitioner/accused was responsible for the accident. 13. It has been contended by learned counsel for the petitioner that finding of the learned trial court, as upheld by the learned appellate court, is merely based on the statement of the petitioner/accused recorded under Section 342 of the Cr. P. C and, as such, the same cannot be relied upon. In this regard, learned counsel has relied upon the judgments of the Supreme Court in the cases of Kashiram and others vs. State of M.P, (2002) 1 SCC 71 and Dehal Singh vs. State of Himachal Pradesh, AIR 2010 SC 3594 as also the judgments of this Court in the cases of Harminder Singh vs. State of J&K, 2004 (2) JKJ [HC] 179 and Mohd. Yousuf vs. State of J&K, 2005 (2) JKJ [HC] 609. 14. There is no quarrel with the proposition of law that statement of an accused recorded under Section 342 of the J&K Cr. P. C, being without administering the oath, cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. It is also true that such a statement cannot be made sole basis for conviction but then it is also a settled law that the answers given by an accused when the incriminating circumstances appearing in the prosecution evidence are put to him and his statement under Section 342 of the J&K Cr. P. C is recorded, the same are required to be considered in the light of the evidence led by the prosecution. 15. The Supreme Court in the case of Sanatan Naskar & anr. Vs. State of West Bengal, AIR 2000 SC 3570 , has, while considering the issue as to what extent the answers given by an accused under Section 311 of the Central Cr.P.C, which is in pari materia with Section 342 of the J&K Cr. P. C, are of relevance, observed as under: “10. The answers by an accused under Section 313 of the Cr.PC are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of Section 313 of the Cr.PC is wide and is not a mere formality. P. C, are of relevance, observed as under: “10. The answers by an accused under Section 313 of the Cr.PC are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of Section 313 of the Cr.PC is wide and is not a mere formality. Let us examine the essential features of this section and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Cr.PC. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr.PC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and, besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) of Cr.PC explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for, any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of the Cr.PC as it cannot be regarded as a substantive piece of evidence.” From the foregoing enunciation of law on the subject, it is clear that the statement of an accused may be taken into consideration in a trial and the court can rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution but such statement cannot be considered in isolation but in conjunction with evidence adduced by the prosecution. 16. In the instant case, as already noted, the prosecution has led enough evidence to establish that it was the petitioner/accused who was driving the vehicle at the time when the accident took place and that the accident caused the death of the deceased. 16. In the instant case, as already noted, the prosecution has led enough evidence to establish that it was the petitioner/accused who was driving the vehicle at the time when the accident took place and that the accident caused the death of the deceased. The statement of the petitioner/accused recorded under Section 342 of the J&K Cr. P. C, wherein he has stated that he was learning the driving but he does not know as to how the victim girl came underneath his vehicle, lends assurance to what has been established by the prosecution by leading evidence in support of the charges. So, it is not a case where the learned trial court has based its decision solely on the statement of the petitioner/accused but it is a case where there is enough evidence on record led by the prosecution in support of the aforesaid circumstance. The argument of the learned counsel is, therefore, without any substance. 17. Next it has been contended by learned counsel for the petitioner that even if it is assumed that the accident was caused by the act of petitioner/accused, still then the prosecution has failed to prove the ingredients of rashness or negligence on his part, because, according to the learned counsel, the sole eye witness to the occurrence has clearly stated in his cross-examination that he does not know as to what was the speed of the vehicle at the relevant time. In this regard, the learned counsel has relied upon the judgments of the Supreme Court in the cases of State of Karnataka vs. Satish, (1998) 8 SCC 493 and Nanjundappa & anr. Vs. State of Karnataka (Criminal Appeal No.900 of 2017 decided on May 17, 2022). 18. Before testing the merits of the contention raised by the petitioner, it would be necessary to understand as to what is ‘rash and negligent’ driving. The expression ‘rash and negligent’ has been a topic of discussion before the Supreme Court in a number of cases. It would be profitable to refer to some of these judgments for the purpose of explaining the issue. 19. The expression ‘rash and negligent’ has been a topic of discussion before the Supreme Court in a number of cases. It would be profitable to refer to some of these judgments for the purpose of explaining the issue. 19. The Supreme Court in the case of Thakur Singh vs. State of Punjab, (2003) 9 SCC 208 , while dealing with a case where the driver drove a bus rashly and negligently with 41 passengers and while crossing a bridge, the bus fell into the nearby canal resulting in death of all the passengers, applied the doctrine of res ipsa loquitur and observed as under: “It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts on to the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part.” 20. Again, in Naresh Giri vs. State of M.P, (2008) 1 SCC 791 , the Supreme Court, while dealing with a case where a train had hit a bus being driven by the accused at the railway crossing and the bus was badly damaged and two persons died, observed as under: “7. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A. 8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. Negligence and rashness are essential elements under Section 304-A. 8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person’s death is culpable homicide. When intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practise such rashness or negligence which may cause the death of other. The death so caused is not the determining factor. 21. What constitutes negligence has been analyzed in Halsbury’s Laws of England (4th Ed.) Vol. 34 Para 1, in the following words: “General principles of the law of negligence. – Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. 34 Para 1, in the following words: “General principles of the law of negligence. – Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent, although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two.” 22. After noticing all the aforesaid judgments and principles, the Supreme Court in the case of Ravi Kapur vs. State of Rajasthan, (2012) 9 SCC 284 , has elaborately discussed the ingredients of rash and negligent driving. Paras 12 to 15 and 20 of the judgment are relevant to the context and the same are reproduced as under: “12. Rash and negligent driving has to be examined in the light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. Rash and negligent driving has to be examined in the light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to “rash and negligent driving” within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words “manner so rash or negligent as to endanger human life”. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted. 13. “Negligence” means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing what one was ought to do can constitute negligence. 14. The court has to adopt another parameter i.e. “reasonable care” in determining the question of negligence or contributory negligence. In a given case, even not doing what one was ought to do can constitute negligence. 14. The court has to adopt another parameter i.e. “reasonable care” in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others. 15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes – one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of “culpable rashness” and “culpable negligence” into consideration in cases of road accidents. “Culpable rashness” is acting with the consciousness that 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. The imputability arises from acting despite consciousness (luxuria). “Culpable rashness” is acting with the consciousness that 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. The imputability arises from acting despite consciousness (luxuria). “Culpable negligence” is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person’s negligent conduct. [Ref. Justice Rajesh Tandon’s An Exhaustive Commentary on Motor Vehicles Act, 1988 (1st Edn., 2010).] xxx xxx xxx xxx xxx xxx xxx 20. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone’s negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone’s negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as: • The event would not have occurred but for someone’s negligence. • The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event. • The accused was negligent and owed a duty of care towards the victim.” 23. From the forgoing enunciation of law on the subject, it is clear that before determining whether an accused has committed an offence under Section 279/304-A RPC, the Court has to consider the manner in which the vehicle is driven and if it is found that it has been driven rashly or negligently, such rashness or negligence should be of a nature as to endanger the human life. The Court has also to take into account the parameters of reasonableness while determining the question of negligence and the degree of care has to be of a higher order when the pedestrian happens to be a child of tender age. It is also deduced from the discussion of law on the subject that once the factum of accident is established, the court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. 24. Now let us analyze the facts established in this case in the light of the principles and law discussed hereinbefore. In the instant case, it has been established by the prosecution that the petitioner/accused was driving the vehicle at the relevant time. It has also been established that the deceased was knocked down by the said vehicle which resulted in fatal injuries to her. The evidence on record shows that not only was the deceased knocked down by the vehicle driven by the petitioner/accused but she was run over by the vehicle, inasmuch as she came underneath the wheels of the vehicle. It has also been established that the deceased was knocked down by the said vehicle which resulted in fatal injuries to her. The evidence on record shows that not only was the deceased knocked down by the vehicle driven by the petitioner/accused but she was run over by the vehicle, inasmuch as she came underneath the wheels of the vehicle. The fact that the petitioner/accused could not control and stop the vehicle after the deceased was hit by the vehicle and she came underneath the wheels of the vehicle clearly shows rashness on the part of the petitioner/accused. The circumstances established on record in this case speak for themselves. 25. Apart from the above, as already noted, the duty of care towards a pedestrian attains a higher degree when the pedestrian happens to be a child of tender age. In the instant case, the deceased was only three years old child, therefore, duty of care imposed upon the petitioner/accused towards the child victim was all the more of a higher degree which the circumstances would clearly indicate, the petitioner/accused had failed to observe/discharge. 26. Another circumstance which goes against the petitioner/accused is that he was a learner. He has stated in his statement recorded under Section 342 of the J&K Cr. P. C that he was a learner. The fact that he plied the vehicle without the assistance of a trained driver on a busy road in the market clearly goes on to show that the petitioner/accused has acted recklessly and negligently. The contention of the petitioner that there is no evidence on record to show that the petitioner was rash or negligent is, therefore, without any substance. 27. For the foregoing reasons, I do not find any ground to interfere in the impugned judgment passed by the learned trial court as upheld by the learned appellate court. The same are well-reasoned and lucid and do not call for interference by this Court. The petition is, therefore, dismissed being devoid of merit. The petitioner/accused shall surrender before the learned trial court within fifteen days from today and once he surrenders before the learned trial court, he shall be sent to the jail for serving the sentence in accordance with law. In case the petitioner/accused does not surrender before the trial court within the aforesaid period, the trial court shall adopt coercive method for securing his presence in the court. 28. In case the petitioner/accused does not surrender before the trial court within the aforesaid period, the trial court shall adopt coercive method for securing his presence in the court. 28. A copy of this judgment be sent to the learned trial court for information and compliance.