JUDGMENT : R.N. Misra, J. - The Petitioner, a taxi driver, has been convicted u/s 304-A, Indian Penal Code read with Section 279 thereof by a learned Magistrate First Class at Kodala, and was sentenced to six months' R.I. under the first count and to no sentence under the second count. His conviction as also the sentence have been upheld by the learned Sessions Judge on appeal, 2. The prosecution case was that at about 7 A.M. on 25-7-1967 one Rama Sahu, brother of p.w. 1, was run over by the taxi which the Petitioner was driving. It was alleged that the taxi, registered as O.R.G. 1725, was being driven both negligently and rashly and the Petitioner could not control the vehicle. The victim Rama Sahu died in the Berhampur hospital on 27-7-1967. First Information Report was given by p.w. 1 and on investigation the Petitioner was charge-sheeted. 3. The defence of the Petitioner was that Rama Sahu was going in the middle of the road. The Petitioner blew the horn as the car came nearer. The deceased had swerved to the left. While the Petitioner was manipulating to take over on the right, the deceased suddenly moved towards the right and dashed on the left side of the vehicle. That led to the accident. 14 witnesses were examined at the trial. P.Ws. 2 to 4 came as eyewitnesses to the occurrence. Some of them were sitting on the culvert close to the place of accident while others were in the neighbouring field doing cultivation operation. P.W. 5 is the Motor Vehicle Inspector who came to the spot a few days after the occurrence. The learned Magistrate, after discussion of the entire evidence, came to hold that the Petitioner was both rash and negligent while driving the vehicle and that was the direct promenade cause of death. He accordingly convicted the Petitioner in the manner already indicated and gave him the sentence of six months' R.I. 4. An appeal was carried to the learned Sessions Judge. The learned Appellate Judge, without examining the evidence on record, in a critic judgment upheld the conviction. The Appellate Court, however, reversed the finding of the learned Magistrate regarding rash driving of the vehicle. The learned Counsel for the Petitioner contended on the authority of the decision of their Lordships of the Supreme Court in Kurban Hussein Mohammedali Rangwalla Vs. The learned Appellate Judge, without examining the evidence on record, in a critic judgment upheld the conviction. The Appellate Court, however, reversed the finding of the learned Magistrate regarding rash driving of the vehicle. The learned Counsel for the Petitioner contended on the authority of the decision of their Lordships of the Supreme Court in Kurban Hussein Mohammedali Rangwalla Vs. State of Maharashtra, that the conviction is wholly without basis. Mr. Murty contends that I should hold as the vehicle approached, the deceased who was on the left side swerved towards the right suddenly at a time when the vehicle was too near and the driver was not in a position to check the vehicle to avert the accident. His point is that the deceased was going on the left side and had no justification to come to the right side. The driver had no occasion to apprehend that the deceased who was already at a safe end of the road would come to the middle even after the horn was blown. The negligence in this case is of the deceased and he has totally contributed to the accident. In the facts and circumstances of the case, Mr. Murty contends, I should hold that it was a case of pure accident giving rise to no liability for any criminal offence. 6. The learned Sessions Judge reversed the finding of rash driving recorded by the learned Magistrate by saying, According to the p.w. 5 the Motor Vehicle Inspector the vehicle had a speed of 20.4 K.M. per hour at the time of the occurrence. Accordingly I think the vehicle was in normal speed. The learned Magistrate has observed that the vehicle had high speed. But I do not agree with the learned Magistrate in this respect. Accordingly I am of the opinion that the accused was not driving the vehicle rashly. The evidence of p.w. 5 has not been properly read by the learned Sessions Judge. P.W. 5 has categorically stated, From the data available the speed of the vehicle as calculated at 22.4. K.M. per hour. But this calculation is subject to error for the following reasons: (1) Said marks formed at the spot was made by partial application of brake whereas said marks recorded during test were formed on hard application of brake. P.W. 5 has categorically stated, From the data available the speed of the vehicle as calculated at 22.4. K.M. per hour. But this calculation is subject to error for the following reasons: (1) Said marks formed at the spot was made by partial application of brake whereas said marks recorded during test were formed on hard application of brake. (2) Weather condition at the time of accident was dry according to I.O. whereas road to my inspection was rain drenched. (3) The contract carriage was tested empty. It was possibly loaded at the time of accident. In view of the above facts it appears to me that the Actual speed of the vehicle was higher than the speed calculated above. 7. In view of this evidence of p.w. 5 the learned Sessions Judge had absolutely no justification to come to a different conclusion than The one reached by the learned Magistrate. The learned Appellate Judge did not read the evidence properly and disposed of the matter in a haphazard fashion. If he had analysed the evidence of p.w. 5 with due care he would not have written what has been extracted above. But that conclusion does not dispose of The case. 8. P.W. 7 who was The cleaner of the taxi has said: At the place of occurrence the deceased was going ahead of the vehicle. When the driver blew his horn, the deceased was going on his left side. But just at the close of the vehicle when the deceased turned to the right the accident took place and the deceased fell near the culvert. This witness has also said that the left side of the vehicle dashed against the deceased. D.Ws. 1 and 2 substantially support the version of p.w. 7. I would be reasonable to hold on such evidence that though the vehicle was being driven at quite good speed, it was not being driven rashly or negligently. The deceased was mainly responsible for the cause of the accident. The Petitioner has blown the horn, the deceased who was the only pedestrian on the road had moved to the left side leaving the road free and when he suddenly moved to the right without any justification the Petitioner applied the brakes and tried to avert the accident by going to the extreme right. The Petitioner has blown the horn, the deceased who was the only pedestrian on the road had moved to the left side leaving the road free and when he suddenly moved to the right without any justification the Petitioner applied the brakes and tried to avert the accident by going to the extreme right. In spite of all his attempts to save the situation, the left side of the motor oar dashed against him and he sustained the fatal injuries. This must be held to be an accident and the deceased must be found to have mainly contributed to it. 9. In Kurban Hussein Mohammedali Rangwalla Vs. State of Maharashtra their Lordships quoted with approval the dictum of Sir Larence Jenkin, C.J. in Emperor v. Omkar Ramratap 4 Bom.L.R. 679, which was to the effect: To impose criminal liability u/s 304-A, Code of Criminal Procedure it is necessary that the death should have been the direct result of a rash and negligent Act of the accused, and that Act must be the proximity and efficient cause without the intervention of another's negligence. It must be the cause causans; it is not enough that it may have been the cause sine qua non. To the facts of this case, the aforesaid dictum has full application. I therefore, hold that the Petitioner cannot be convicted for the offences in this case. 10. The revision is allowed. The Petitioner is acquitted. His bail bond is cancelled.