JUDGMENT - R.L. AGGARWAL, J.:---The respondent Bahadursingh was driving a four wheeler tempo motor vehicle on 28-10-1971 bearing registration No. MRQ 1010 belonging to Pearls Thrend Mills, Tardeo and while he was proceeding on Falkland Road Bridge from west to east in the afternoon, it is alleged, he knocked down Vijay Singh who was attempting to get up from the road where he had fallen from his motor-cycle in attempt to avoid knocking down a child while proceeding from east to west. Vijay Singh died on the said day. The respondent was arrested on the next day. After the completion of the investigation, the respondent was charge-sheeted for the offences under section 304-A I.P.C. and sections 89(a) and (b) read with section 112 of the Motor Vehicles Act. The learned Additional Chief Presidency Magistrate, 4th Court, Girgaum, Bombay, by his order dated 30th June, 1972 acquitted the respondent of all the charges. Being aggrieved of the said order, the State has come in appeal. 2. It is not in dispute that the respondent at the material time was on the Falkland Road Bridge driving MRQ 1010 and was proceeding from west to east. It is common ground that the deceased was riding on his motor-cycle on the same bridge from east to west. A boy was seen running across the road from north to south at the foot of the bridge and the deceased applied his brakes to avoid an accident with the boy and in doing so he fell down on the road. 3. The prosecution relied upon the evidence of two eye-witnesses Rameshchandra Raja (P.W. 1) and Ashwin Bavani (P.W. 2). Both of them, according to the prosecution were eye-witnesses to the accident resulting in the fall of the deceased from his motor-cycle and the knocking down of the deceased by the respondent by his tempo vehicle. P.W. 2 had lodged the First Information Report, (Ex. D) Dr. Desai (P.W. 6) proved the death of the deceased. Panchanama (Ex. C) was proved by the panch, Chhagan (P.W. 3). The prosecution examined two officers, because the accident was first reported to the Agripada Police Station and subsequently, the case was transferred to the Lamington Road Police Station within whose jurisdiction the accident had taken place and accordingly, S.I. Chavan (P.W. 7) is the real Investigation Officer in this case. C) was proved by the panch, Chhagan (P.W. 3). The prosecution examined two officers, because the accident was first reported to the Agripada Police Station and subsequently, the case was transferred to the Lamington Road Police Station within whose jurisdiction the accident had taken place and accordingly, S.I. Chavan (P.W. 7) is the real Investigation Officer in this case. The prosecution also examined Indravadan Sheth (P.W. 4) the owner of MRQ 1010 who had produced the respondent at the Police Station on the next day after the accident. 4. The defence has examined Ratnasing Anantsingh (D.W. 1) who was sitting next to the respondent. Mr. Kamble, the learned Assistant Government Pleader, submitted that the lower Court did not appreciate the evidence properly and was in error in discarding the evidence of the eye-witnesses on the ground of discrepancies in their evidence. He further urged that the medical evidence was not properly appreciated by the lower Court. He submitted that the approach of the lower Court was wrong and it has resulted into a miscarriage of justice in this case. 5. On behalf of the respondent, it was submitted that he was falsely charged, that although he was on the bridge at the material time he was behind a stationery bus and a motor-car and in any case the impact of the tempo vehicle did not cause the death of the deceased and, therefore, no offence under section 304-A I.P.C. is disclosed on the facts of this case. 6. Now the eye-witnesses account of P.Ws. 1 and 2 shows that the deceased was driving at a speed of about 20 to 25 miles per hour and when he saw a boy aged 5 years running across the road he applied his brakes to avoid the accident with the boy but the motor-cycle slipped. The deceased fell down and tried to get up but the respondents tempo vehicle dashed on the head of the deceased. This tempo vehicle went ahead and halted. The deceased became unconscious and he was removed to Nair Hospital. P.W. 2 stated that he had noted down the number of tempo vehicle on his visiting card (Ex. A) P.W. 2 had accompanied the Police Officer to the scene of the offence and assisted in making the panchnama (Ex. C). He also lodged F.I.R. (Ex. D). The deceased became unconscious and he was removed to Nair Hospital. P.W. 2 stated that he had noted down the number of tempo vehicle on his visiting card (Ex. A) P.W. 2 had accompanied the Police Officer to the scene of the offence and assisted in making the panchnama (Ex. C). He also lodged F.I.R. (Ex. D). In the cross-examination P.W. 1 stated that the deceased fell at a distance 6 to 7 towards the south of the centre of the road. The deceased fell at a distance of 8/10 feet away from the foot of the bride towards the south west. Although the motor-cycle and the deceased fell down the vehicular traffic was going on as usual. There was no motor vehicle behind the motor-cycle, between the fallen motor-cycle and the deceased. He could not say what were the injuries to the deceased. He further stated that "the deceased was trying to get up for about 2 minutes". He denied the suggestion that immediately prior to the tempo coming over there (place of impact) a Standard Harold went from west to east. The witness admitted that there was a stationary BEST bus at the bus stop on the northern side when the witness, Ashwin (P.W. 2) and 4-5 others were going towards the deceased they were at a distance of 10 away from the deceased when the tempo came. He was unable to say which part of the tempo hit the deceased. Later he stated "tempo hit the back side of the right ear of the deceased." 7. Ashwin (P.W. 2) in his cross-examination stated that the motor-cyclist fell down on the road on his right side. His right shoulder hit the road when he fell. The tempo was of blue colour. He deposed that the right front side of the bumper of the tempo hit the motor-cyclist on his right side of his head. "The tempo halted near the bus stop on the north. Some members of the public shouted "Pakdo Pakdo". In an answer to a question from the Court, the witness stated that the deceased lay 4 to 5 feet away towards the south from the central white dividing line and towards the west of the deceased. The head of the deceased was near the central line and his legs away from it. In an answer to a question from the Court, the witness stated that the deceased lay 4 to 5 feet away towards the south from the central white dividing line and towards the west of the deceased. The head of the deceased was near the central line and his legs away from it. I have carefully considered the evidence of these two witnesses and I find that their evidence is consistent. However P.W. 2 in his F.I.R. had stated that he noticed a motor-cyclist riding his motor-cycle along Falkland Road Bridge proceeding towards Tareo Junction side and suddenly applying the brakes on seeing a pedestrain boy who way trying to cross the road. The boy had slightly came in contact with the said motor-cycle. The motor-cyclist lost his balance and fell down on his right side together with his motor-cycle and before he could get up a tempo blue in colour "brushed passed" the motor-cyclist as it was passing towards the Falkland Road Bridge side in the opposite direction. As the motor-cyclist sustained injury to his head and fell unconscious on the road and was helpless, he at once rushed to the scene. The driver of the tempo vehicle halted his tempo a little distance ahead along the Falkland Road Bridge side, got down from has vehicle and came to the place where the injured motor-cyclist was lying unconscious and bleeding from head injury. He then removed the injured to the hospital. I notice that the witness has made an improvement in his evidence before the Court. In his F.I.R. he stated that the tempo vehicle "brushed passed" and in his evidence in the Court he stated that the tempo struck the motor-cyclist and the right front side of the bumper of the tempo hit the motor-cyclist on the right side of his head. In my opinion, this is an exaggerated version and an after thought. The witness is an intelligent person, a public spirited citizen who on seeing the accident rushed to the rescue of the injured, took him to the hospital for medical treatment, also noted the registration number of the tempo vehicle, informed the employers of the injured and in the light of these circumstances, it is highly improbable that while giving information he would omit to make a statement as to the kind of impact that was caused to the deceased. I do not wish to quarrel with the words but it is significant to note that there is a wide difference between the expression "brushed away" and "tempo struck", on the other hand their evidence on record to the effect that "the right front side of the bumper of the tempo hit the motor-cyclist on the right side of his head". F.I.R. is an extremely vital and useful piece of evidence for the purpose of corroborating the testimony adduces at the trial. The value of F.I.R. can hardly be over-estimated from the point of view of the accused. The material version of P.W. 2 in his F.I.R. does not indicate that the respondent was knocked down by the tempo vehicle. At the same time, it is not unlikely that the tempo vehicle did come in contact with the head of the deceased as a result of which he may have died because in this connection, P.W. 1 deposed that the tempo hit the back side of right ear of the deceased. I have no reason to disbelieve the testimony of these eye-witnesses but it seems to me that their version in the trial Court is exaggerated. Their evidence establishes that the deceased had fallen down on the road and was trying to get up and according to P.W. 1 the deceased was trying to get up about for two minutes. This shows that the deceased had fallen and suffered injuries or was otherwise unable to get up for a considerable time and it was at that point of time that the tempo vehicle came in contact with the deceased. If it was the real case of knocking down or striking the deceased, there would have been some evidence on record to indicate as to whether the deceased was again thrown down or thrown or thrown away after the impact. The medical evidence indicates that the injuries sustained by the deceased were not possible if a motor-cyclist going at a considerable speed suddenly applies his brakes and fals and rolls over the injuries. According to Dr. Desai, injuries mentioned in Ex. D were possible if a person is knocked down by a moving tempo. He stated that some injuries in Ex. D are primary and some are secondary but he was unable to say which were which. The deceased had received 8 injuries. According to Dr. Desai, injuries mentioned in Ex. D were possible if a person is knocked down by a moving tempo. He stated that some injuries in Ex. D are primary and some are secondary but he was unable to say which were which. The deceased had received 8 injuries. According to the learned Counsel for the respondent injuries Nos. 4 to 8 could not be caused by the impact of the tempo vehicle. On scrutiny of these injuries and in the light of other circumstances in this case namely that the pillion seat and the drivers seat were dislodged from the motor-cycle and that the foot rest of the right side had dented, it is not unlikely that the deceased had received several injuries by all. This indicates that there is inconsistency between the eye-witnesss account and the medical evidence in this case. On the facts and the circumstances of this case I am not inclined to discard the eye-witnesses account as unrealiable and untruthworthy and accept the medical opinion as conclusive. The accused respondent is charged under section 304-A I.P.C. and before a person can be held guilty under this section the death must be the direct result of rash and negligent act of the accused. That act must have been the immediate proximate and efficient cause without the intervention of any other negligence. What happened immediately anterior to the tempo vehicle coming in contact with the deceased cannot be ignored on the facts and the circumstances of this case. Can it be said in this case that it is the respondent who occasioned the death of the deceased or was it his act that produced the death of the deceased? In my opinion, the act of the respondent is not the efficient or material or sole cause that brought about the death of the deceased. In this case, there were intervening circumstance not posterior but anterior to the accident. The deceased had falled from his motor-cycle whose drivers seat and pillion seat were dislodged and foot-rest had dented. Apart from some other damage to the motor-cycle the deceased lay on the road and was not able to get up for a considerable time. According to P.W. 1 he took about 2 minutes. In my opinion, therefore, the respondent cannot be said to be guilty under section 304-A on the facts and the circumstances of this case. Apart from some other damage to the motor-cycle the deceased lay on the road and was not able to get up for a considerable time. According to P.W. 1 he took about 2 minutes. In my opinion, therefore, the respondent cannot be said to be guilty under section 304-A on the facts and the circumstances of this case. In this connection, the learned Counsel for the respondent has relied upon two decisions in (Suleman Rahiman Mulani v. The State of Maharashtra)1, 70. Bom.R.L. 536 and (Tukaram Sitaram Gore v. The State of Maharashra)2, 72 Bom.R.L. 442. The principle which emerges from those decisions is that the death of a should be proximate cause of the act of the accused and there must be a direct nexus between the two. In the present case also, it cannot be said that the act of the respondent is the sole cause of the death of the deceased. There is some nexus but the nexus is not of such nature that it is the sole cause of the death of the deceased. In this State of evidence, the provisions of section 304-A I.P.C. have no application to the facts of this case. 8. The defence of the respondent as appearing firstly in the cross-examination was that before the tempo vehicle passed by a Standard Herald had gone ahead and thereby suggesting that it was possible the Standard Herald which had hit or come in contact with the deceased and not the tempo vehicle of the respondent. The evidence of D.W. 1 indicates that there was a bus stopped at the bus stop on the bridge and there was stationery car behind it and the tempo vehicle was behind this stationery car and, therefore, the tempo did not hit the motor-cyclist. D.W. 1 deposed that the respondent did not get down from the tempo. This witness deposed to the earlier incident in which the deceased had succeeded in avoiding the accident with a small boy but as regards the incident in connection with the tempo vehicle, his evidence does not inspire confidence. The respondent in his evidence stated that his tempo did not bang on the deceased and it is false that he ran away with the tempo. I am not inclined to believe the evidence of D.W. 1 and the explanation of the respondent. The respondent in his evidence stated that his tempo did not bang on the deceased and it is false that he ran away with the tempo. I am not inclined to believe the evidence of D.W. 1 and the explanation of the respondent. P.W. 2 had noted down the number of the tempo vehicle on his visiting card. He stated that the driver respondent came at the place of the impact. He admitted that he was unable to identify the respondent. Coupled with this evidence is the evidence of P.W. 1, do not see any reason as to why they should falsely implicate the respondent. The evidence of P.Ws. 1, 2 and the documentary evidence Ex. A, F.I.R. and the visiting card, established that the respondent had gone away without attending to the injured and giving information to the police about the accident. For these reasons, I hold that the respondent is guilty under sections 89(a) and (b) of the Motor Vehicles Act, 1939. 9. It is urged on behalf of the respondent relying upon the decision in (Lekha Yadav v. State of Bihar)3, A.I.R. 1973 S.C. 2241 that in an appeal from acquittal the Court should bear in mind that there is an initial presumption in favour of innocence of an accused which trial Court having acquitted him is further strengthened to some extent but certainly not weakened. The Court should not ignore importance of the opinion of the trial Court, and, therefore, the order of acquittal should not be disturbed. It appears to me that the approach of the trial Court was not proper in this case. The lower Court did not properly appreciate and weight the evidence of the eye-witnesses. It did not consider the medical evidence altogether. The reasons given for discarding the evidence of the eye-witnesses are unsound and not warranted by the evidence on record. In my opinion the lower Court was not justified in coming to the conclusion which it did. For these reasons I partially allow the appeal and confirm the acquittal of the respondent under section 304-A I.P.C. and set aside his acquittal under sections 89(a) and (b) read with section 12 of the Motor Vehicles Act, 1939 and pass the following order. 10. I convict the respondent under sections 89(a) and (b) with section 112 of the Motor Vehicles Act, and sentence him to pay a fine of Rs. 10. I convict the respondent under sections 89(a) and (b) with section 112 of the Motor Vehicles Act, and sentence him to pay a fine of Rs. 75/- on each count and in default to suffer rigorous imprisonment for one month for each default. -----