JUDGMENT : G.K. Misra, C.J. - The Petitioner has been convicted under Sections 304-A, 337, Indian Penal Code and 118A of the Motor Vehicles Act, 1939 and sentenced to R.I. for one year, 6 months and to pay a fine of Rs. 500/- in default to R.I. for 3 months, respectively. The sentences of imprisonment are to run concurrently. 2. Prosecution case is as follows. On 6.1.1970 the Petitioner was driving a taxi No. O.R.O. 208 on the Sundargarh. Rourkela road. The taxi ran against a boy who died as a result of the injuries caused on him. The taxi did not stop but travelled a distance of about 50 feet after the child was crushed and fell into a ditch on the left side of the road. Twelve occupants inside the taxi got injured when the taxi fell into the ditch. The defence was that the taxi was not being drived in a rash and negligent manner. The boy died as a result of the accident. Both the Courts below accepted the prosecution story and held that the taxi was being driven in a rash and negligent manner. 3. The question for consideration is whether Petitioner was guilty of the various offences under which he has been convicted. 4. The entire prosecution story is unfurled through the evidence of p.ws. 1 and 5 on which both the Courts have relied upon. Mr. Misra took me through their evidence. P.w. 1 was one of the occupants of the taxi. He deposed thus: While it was corning towards Sundargarh. we found a child and a pup on the street ahead and asked the driver to drive the vehicle carefully. The child ran after the pup and in the process got struck with the taxi and fell down. The taxi ran. over the child and without stopping dashed off. But after running about 50 feet. the taxi also turned over on the ground and the passengers were injured. I sustained injury on my left leg and bleeding injury on my nose. xx xx xx Cross-Examination : The child was about 7 to 8 years old and we first saw him standing on the right side of the road towards edge. The pup was in the middle of the road. Accused blew horn and the dog ran towards left side of the road and the child followed the dog. xx xx xx Cross-Examination : The child was about 7 to 8 years old and we first saw him standing on the right side of the road towards edge. The pup was in the middle of the road. Accused blew horn and the dog ran towards left side of the road and the child followed the dog. The accused was taking the vehicle inside the road. The vehicle went down the field crossing the road at a little distance from the accident spot. The vehicle was in normal speed. The accident was caused due to the dog and attempt of the child to catch the dog. It would be seen from the evidence of p.w. 1 that the Petitioner was driving the taxi on the left side of the road. The deceased child was on the extreme right side of the road towards the edge. When the horn was blown the pup which was in the middle of the road ran towards the left and the child ran after the dog and while so running the deceased struck against the taxi. The vehicle was in normal speed. P.w. 1 clearly deposed that the accident was caused due to the dog and the attempt of the child to catch the dog. Prosecution did not establish through the evidence of p.w. 1 as to at what distance p.w. 1 saw the dog from the taxi and whether. despite seeing the pup from a long distance the Petitioner failed to put brake in the taxi so as to avoid collision with the child and whether the child all of a sudden ran after the pup so that the Petitioner could not have avoided the collision even by applying brake. On the contrary p.w. 1's evidence is that the vehicle was in normal speed and the accident was caused due to the dog going to the left side and the attempt of the child to catch the dog P.w. 1's evidence does not help the prosecution story that the accused drove the taxi in a rash and negligent manner. P.w. 5 deposed thus: I examined she spot and found the road straight and wide. The speed of the vehicle, on consideration with damage sustained, would have been at the rate of 35 to 40 miles per hour. As there was no skid mark at the spot, brake was not possibly applied. P.w. 5 deposed thus: I examined she spot and found the road straight and wide. The speed of the vehicle, on consideration with damage sustained, would have been at the rate of 35 to 40 miles per hour. As there was no skid mark at the spot, brake was not possibly applied. There was no sign of brake failure. In my opinion the accident was not due to any mechanical failure and might be due to driver's rash driving. Cross-Examination : The damages to the vehicle were caused due to accident. Speed of about 30 to 40 miles for a light vehicle at the spot, which was a straight road, cannot be considered as very much rash driving. In case brake is applied at that speed, the vehicle would stop within 30 to 40 feet. Application of sudden brake would cause inconvenience and probably injury to the occupants of the vehicle. The magnitude of damage would not have occasioned, had the spot been a plain stretch of land without ditch. I have opined about rash driving basing my inference on the magnitude of damage. The evidence of the Motor Vehicle Inspector (p.w. 5) does not establish as to at what distance the vehicle was from the pup when the occupants saw it for the first time, P.w. 5 stated as to the rate of speed at 35 to 40 miles per hour on the basis of the damage sustained by the vehicle. It must be remembered that this opinion is speculative inasmuch as admittedly ultimately the vehicle went off the road and over-turned and sustained heavy injuries. The spot where the motor vehicle fell down the road was a ditch. He found no skid mark at the spot. From this p.w. 5 inferred that possibly the brake had not been applied. His opinion that the accident might be due to driver's rash driving is based on the magnitude of the damage rendered to the taxi. That opinion is again speculative. He further says 'that even if brake had been applied to avert the collision the vehicle would stop with in 30 to 40 feet. So if the deceased ran after the pup where the accident could not have been averted. In fact the taxi went off the road at a distance of about 50 feet from the place of accident. He further says 'that even if brake had been applied to avert the collision the vehicle would stop with in 30 to 40 feet. So if the deceased ran after the pup where the accident could not have been averted. In fact the taxi went off the road at a distance of about 50 feet from the place of accident. The evidence of p.w. 5 does not establish as to at what distance the taxi ran on the child who all of a sudden ran in front of it. 5. The learned Sessions Judge committed an error of record when he observed; From this it is clearly indicative that the Appellant could see the pup standing on the middle of the road and later on going towards the left of the road followed by the victim boy on the horn being blown from a sufficiently long distance. There is absolutely no evidence on record to justify the conclusion that' horn was blown from a sufficiently long distance. The learned Sessions Judge also committed another error of record in observing; From this he (p.w. 5) is of the firm opinion that the Appellant had not applied the brake of the taxi at all P.w. 5 on the contrary made it clear that "brake was not possibly applied". Thus p.w. 5 merely expressed an opinion based on an inference and he was not firm in his opinion. The learned Sessions Judge again observed that: There is no evidence anywhere to show that the Appellant slowed down on seeing an obstruction, viz. a pup standing on the middle of the road, but simply blew the horn and continued driving on the same speed. It is (sic) the prosecution to-give evidence that the Petitioner did "not slow down. There is no prosecution evidence whether the Petitioner continued to drive the vehicle at the same speed after he blew the horn. There is no evidence also whether he slowed down the vehicle or not. 6. On the evidence of p.ws. 1 and 5 all that the prosecution proved is that the deceased boy followed the pup towards the left of the road and dashed against the taxi which was running on the left side of the road. 7. The question for consideration is whether on the aforesaid finding the Petitioner is liable to be convicted u/s 304-A, Indian Penal Code. 1 and 5 all that the prosecution proved is that the deceased boy followed the pup towards the left of the road and dashed against the taxi which was running on the left side of the road. 7. The question for consideration is whether on the aforesaid finding the Petitioner is liable to be convicted u/s 304-A, Indian Penal Code. The section runs thus: Whoever causes the death of any person by doing rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The scope and ambit of this section was fully discussed in Suleman Rehiman Mulani and Another Vs. State of Maharashtra. The requirements of the section are that death of a person must have been caused by the accused doing any rash or negligent act. Prosecution must prove that the rash or negligent act of the accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash or negligent act of the accused. In paragraph 11 of the judgment, their Lordships approved the following observations of Sir Lawrence Jenkins: To impose criminal liability u/s 304-A Indian Penal Code, 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 proximate and efficient cause without the intervention of another's negligence. It must be the causa, causans; it is not enough that it may have been the causa qua non. It follows from the aforesaid dictum that from the mere fact that a pedestrian had been knocked down and has died, the driver of the motor vehicle that knocked him down cannot be presumed to be guilty of rashness or negligence. Tukaram Sitaram Gore Vs. State, . 8. Applying the aforesaid tests prosecution has failed to present the necessary evidence where from the Court could deduce that the death of the deceased was not purely due to accident but due to the rash and negligent act of the Petitioner. Tukaram Sitaram Gore Vs. State, . 8. Applying the aforesaid tests prosecution has failed to present the necessary evidence where from the Court could deduce that the death of the deceased was not purely due to accident but due to the rash and negligent act of the Petitioner. Prosecution should have proved as to at what distance the pup was visible to the occupants of the taxi for the first time whether the Petitioner blew the horn and applied brake to avert the taxi running down the deceased and whether even if brake had been applied the danger could have been averted when the deceased ran after the pup towards the left side of the road. Prosecution evidence is wholly insufficient to give a clear picture as to how the death occurred and whether it was on account of the rash and negligent act of the Petitioner. The possibility that death was due to pure accident when all of a sudden the boy ran to the left side in front of the taxi and that the Petitioner was not in a position to avert the collision, cannot be over-ruled. The Petitioner is, therefore, entitled to benefit of doubt. The conviction and sentence u/s 304-A is, accordingly, set aside. 9. The next question for consolidation is whether the conviction u/s 337, Indian Penal Code is good. Section 337 runs thus: Whoever causes hurt to any person by doing an}' act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. In this case admittedly the taxi was not halted at the place of accident but it ran for a distance of about 50 feet when it went off the road and fell into a ditch. When the taxi fell down into the ditch, it was seriously injured and damaged and the occupants sustained several injuries. P.w. 1 himself had injured on his left leg and bleeding injury on his nose. The question for consideration is whether the hurt that was caused to p.w. 1 was by the Petitioner's acting rashly or negligently to endanger the life or personal safety of the occupants of the taxi. P.w. 1 himself had injured on his left leg and bleeding injury on his nose. The question for consideration is whether the hurt that was caused to p.w. 1 was by the Petitioner's acting rashly or negligently to endanger the life or personal safety of the occupants of the taxi. Admittedly the taxi ran for a distance of about 50 feet from the place of accident when it went off the road. P.w. 5 deposed that in case the brake had been applied the vehicle would stop within 30 to 40 feet. Even if the difference between 30 to 40 and 50 feet is not to be took much emphasised upon the Petitioner was responsible for the taxi getting overturned and falling down the road into a ditch. A driver applying brake to avoid the danger of the accident when the taxi ran for a further distance of 50 feet, had no justification to drive it in such a manner as to entail over turning of the taxi and its falling into the ditch. This act, of the Petitioner was clearly rash and negligent and he has been rightly convicted u/s 337, Indian Penal Code. The maximum sentence prescribed in the section is six months. I reduce the sentence of six months imposed under this section to three months R.I. 10. The next question for consideration is whether the sentence u/s 118A of the Motor Vehicles Act, 1939 can be sustained. The Section 118A so far as relevant, runs thus: Whoever fails to comply with the provisions of Clause (c) of Sub-section (1) of Section 87 - xx xx. shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. The Section 118A so far as relevant, runs thus: Whoever fails to comply with the provisions of Clause (c) of Sub-section (1) of Section 87 - xx xx. shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. Section 87(1)(c) is as follows: 87(1) The driver of a motor vehicle shall cause the vehicle to stop and remain stationary so long as may reasonably be necessary, xx xx xx (c) when the vehicle is involved in the occurrence of an accident to a person, animal or vehicle or (sic) damage to any property, whether the driving or management of the vehicle was or was not the cause of the accident or damage, and he shall give his name and address and the name and address of the owner of the vehicle to any person, affected by any such accident or damage who demands it provided such person also furnishes his name and address. In this case the evidence is that the taxi was driven for a distance of about 50 feet on the road when it went of the road and fell down into the ditch. It was not proved by the prosecution that the Petitioner had not caused the taxi to stop and remain stationary so long as was reasonably necessary after the accident was caused. P.w. 5 deposed that even if brake had been applied, the taxi would have stopped at a distance of 30 to 40 feet from the place of accident. The requirements of Section 87(1)(c) have not been brought home to the Petitioner and consequently the conviction u/s 118A is bad in law. The conviction and sentence under this section are set aside. 11. As a result of the aforesaid discussion, the conviction and sentence passed on the Petitioner u/s 304-A Indian Penal Code and Section 118A of the Motor Vehicles Act, 1939 are set aside. The conviction u/s 337, Indian Penal Code is sustained and the sentence passed thereunder is reduced from six months R.I. to three months R.I. 12. In the result, the judgments of the Courts below are set aside in part and the criminal -revision is allowed in part as indicated above. Final Result : Allowed