JUDGMENT : Acharya, J. - This revision arises out of the judgment of the learned Sessions Judge, Sambalpur-Sundergarh, confirming the order of conviction passed against the Petitioner by the Sub-divisional Magistrate, Panposh, who convicted him u/s 304-A, Indian Penal Code and u/s 112 of the Motor Vehicles Act and sentenced him only u/s 304-A Indian Penal Code to undergo rigorous imprisonment for one year and to pay a fine of Rs. 300/- and in default to undergo rigorous imprisonment for three months; no separate sentence was awarded u/s 112 of the Motor Vehicles Act. 2. The prosecution case, in short, is that on 5-4-1965 at about 4 P.M. the Petitioner a driver of a dumper (O.R.C. 2016), backed the vehicle in a rash and negligent manner at the loading site after it was loaded' with limestone, and in so doing the rear wheels of the dumper ran over two persons who were on the spot at the back of the dumper, which caused their instantaneous death. 3. The accused Petitioner pleaded not guilty to the charges framed against him. He asserted that he was not responsible for the above unfortunate incident as he never acted in a rash and negligent manner. The vehicle was on start for a long time and before moving the vehicle he blew the horn and took the signal of clearance from the helper p.w. 2, and as such he could not be held guilty for the above incident. 4. Mr. Basu, learned Counsel for the Petitioner, contended that the judgments of conviction passed by the Courts below were not based on evidence; and that even taking the evidence as such, the Petitioner's conviction u/s 304-A Indian Penal Code could not be maintained in view of the fact that there was no finding of culpable rashness, criminal negligence and mens rea in the act alleged against the accused-Petitioner. 5. The finding of the appellate Court that the vehicle had no horn is patently incorrect, as p.w. 6 the Motor Vehicles Inspector who examined the dumper, categorically mentioned in his report (Ext. 4) and in his deposition in the Court only six defects in the said dumper, stating therein that the rest were an right. The absence of a horn in the vehicle was not mentioned any where therein. 4) and in his deposition in the Court only six defects in the said dumper, stating therein that the rest were an right. The absence of a horn in the vehicle was not mentioned any where therein. p.w. 2 the only witness who stated that there was no horn in the dumper bad not stated so before the police. It is also important to note that the dumper bad no silencer fitted to it as evidenced by the Motor Vehicles Inspector, and such the vehicle being a heavy one undoubtedly produced a "high sound" as stated by p.w. 6. p.w. 2 the helper, in his cross-examination stated as follows: When I give signal my driver is to start our dumper. That day the accused backed the dumper after I gave signal. I did not mark anyone sleeping on the ground and so I gave signal to accused to back the dumper. During duty none can sleep. The dumper being a heavy one the driver naturally bad to depend and rely on the helper (p.w. 2) for his signal of clearance, and only on getting the same and on blowing the horn he backed the vehicle after it was loaded in order to move out of the loading platform. The other two eye-witnesses p.ws. 3 and 4 could not state as to how the accident took place as at the time of the occurrence they were either dozing or sleeping though they were near about the place of occurrence. The place where the accident occurred being a loading platform, vehicles in numbers always -move about for loading purpose. As such it was not expected of anyone to sleep just at the back of a heavy dumper which was to move out after being loaded. 6. In order to constitute an offence u/s 304-A Indian Penal Code the death of a person must have been caused by the accused doing any act in a rash or negligent manner, and as such there must be positive proof that the rash or negligent act of the accused was the proximate cause which resulted in the death of the deceased. As has been held in Suleman Rehiman Mulani and Another Vs. State of Maharashtra there must be direct nexus between the death of a person and the rash or negligent act of the accused. As has been held in Suleman Rehiman Mulani and Another Vs. State of Maharashtra there must be direct nexus between the death of a person and the rash or negligent act of the accused. The implications of the words "rashness" and "negligence" in Section 304-A have been elucidated thus in Bharosi Vs. State, . Rashness means doing an act with the consciousness of a risk that evil consequence will follow but with the hope that they will not. And negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are the determining factors. According to Russel on -Grimes (1950 Edition) page 641, there must be mens rea in the criminal negligence also. The learned author has said that Judges have used many epithets to describe negligence, such as "Culpable" "Criminal" "Gross" "wicked" of "Complete negligence". But whatever epithet be used....in order to establish criminal liability the facts must be such that the negligence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime. In a decision reported in State v. Lokanath Bagarti 1959 O.J.D. 703, it is held that "in order to amount to Criminal rashness or criminal negligence one must find that the rashness hits been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned there by. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences." Similar views find support in the decisions reported in Emperor v. W.S. Priestley AIR 1944 Sind 124, and H.W. Smith Vs. Emperor, . This being the law on the subject, before a person can be convicted of an offence u/s 304-A Indian Penal Code it must be shown that the act was done with the consciousness of a risk that evil consequences of death was likely to follow thereform, and/or there was mens rea in the doing of the negligent act alleged against the accused. On the facts stated and discussed above it is difficult to hold that the Petitioner had the mens rea, or acted with any consciousness of a risk that evil consequences of this nature would follow in his driving the vehicle in the circumstance of this case. There being therefore no culpable rashness and/or no criminal negligence on the part of the Petitioner in the alleged act, his conviction u/s 304-A Indian Penal Code cannot be maintained. 7. p.w. 6 the Motor Vehicles Inspector has found certain defects in the vehicle due to which it is fairly conceded by Mr. Basu that the Petitioner can at best be convicted u/s 112 of the Motor Vehicles Act. On the evidence of p.w. 6, the Petitioner's conviction u/s 112 of the Motor Vehicles Act is maintained and he is sentenced thereunder to pay a fine of Rs. 75/. 8. In the result, therefore, the conviction and sentence of the Petitioner u/s 304-A Indian Penal Code are set aside and he is acquitted of that charge. The Petitioner's conviction u/s 112 of the Motor Vehicles Act is however maintained and he is sentenced to pay a fine of Rs. 75/- and in default to undergo rigorous imprisonment for one month on that count. The revision is accordingly partly allowed.