JUDGMENT - D.M. REGE, J.:---This is an appeal by the accused who was a taxi driver, against his conviction, by the learned Presidency Magistrate under sections 279 and 338 of the Indian Penal Code and also under section 89(a) and 89(b) read with section 118-A of the Motor Vehicles Act. The learned Magistrate has sentenced the accused for the conviction under section 279 of the Indian Penal Code to one month rigorous imprisonment, for conviction under Section. 338 of the Indian Penal Code to 4 months rigorous imprisonment and for conviction under section 89(a) and 89(b) read with section 118-A of the Motor Vehicles Act, to 15 days rigorous imprisonment on each account. 2. The prosecution case was as follows: On 24-10-1972, at about 9 or 9-30 p.m. one motor lorry No. MHP 3597 was parked near eastern foot-path at Kurla on Bombay-Agra Road while proceeding from north to south. One Abdul Rehman Hakim the injured person who was the cleaner of the lorry was asked by the driver of the lorry one Vithalrao (P.W. 6) to call a person from Kamani Company on the opposite footpath. While the injured person was crossing the road a taxi bearing No. 2704 driven by the accused also proceeding from north to south knocked down the injured person Abdul Rehman causing him grievous injuries. The accused, however, without stopping to render to the injured person the medical help, speeded away. He also failed to report the incident to the nearest Police Station. The injured person was removed by the lorry driver Vithal (P.W. 6) to the Sion Hospital where he was treated. 3. Medical examination showed that he had suffered inter alia communated fracture upper end of left ibia, communated fracture mid shaft right tibia, C.L.W. left knee 1 x 1/2" x muscle deep, and one punctured wound 1/8" x 1/8" bone deep left leg upper 3rd. On information, the police Sub-Inspector attached to the Kurla police Station went to the hospital at about 12-45 a.m. on 24-10-1972 and recorded the statement of the injured person as well as the said Vithal, driver of the lorry. On information, the police Sub-Inspector attached to the Kurla police Station went to the hospital at about 12-45 a.m. on 24-10-1972 and recorded the statement of the injured person as well as the said Vithal, driver of the lorry. He then inspected the place of the incident, took measurement and found the width of the road was 14-20 metres and also notice skid marks of about 7 metres running from north to south which were the skid marks of are and not lorry and the distance between eastern footpath and skid marks was 5.10 metres. He then traced the taxi owner and thereafter arrested the accused and charge-sheeted for the above offence. 4. In support of its case the prosecution examined two persons as eye-witnesses to the incident viz., Malhari (P.W. 2) who was with the parked lorry and Vithal (P.W. 6) who was the driver of the lorry, both of whom are alleged to have seen the incident. 5. Their evidence that they had seen the taxi No. MRS 2704 knocking down the accused has gone unchallenged. The prosecution has also examined one Kisanchand (P.W. 3) the owner of the taxi and one Gregory (P.W. 4) and one Francis (P.W. 5) to show that the taxi was in charge of and driven by the accused. Their evidence shows that the owner of the taxi, Kisanchand had given the said taxi for plying to Gregory (P.W. 4) and that he was in charge thereof on 24-10-1972. Evidence of Gregory is that as he was ill, he had given the taxi to the accused on 23-10-1972 and the accused had brought back the taxi on 26-10-1972. The said evidence had gone unchallenged and the same therefore proves that on 24-10-1972 the accused was in charge of the taxi. No doubt the evidence of Francis (P.W. 5) shows that he had seen the accused parking the taxi in front of the shop at Vakola village on 23rd and 24th October, 1972 and that on 24-10-1972 he had parked the same between 6-30 p.m. to 10-30 p.m. The said evidence coming from the memory of this witness after a lapse of about 9 months is difficult to accept and the same as well does not show that the accused had not taken it for plying sometime during that time. 6. 6. The said evidence therefore clearly proves that the injured person was knocked down by the said taxi while being driven by the accused. 7. The question however, so far as the charge under sections 79 and 338 of I.P.C. is concerned is whether the prosecution has proved beyond reasonable doubt that the accused was driving the taxi at the relevant time rashly or negligently. The burden of proving the rash or negligent act on the part of the accused lies on the prosecution. As I will presently point out on the evidence on record the prosecution cannot be said to have discharged that burden. 8. Strangely enough in this case the prosecution has not examined the injured person and therefore the F.I.R. has gone unproved, as well. No explanation is given by the prosecution for not doing so. The prosecution has therefore, for no justifiable reason kept back the best available evidence. The only evidence that the prosecution has relied upon for that purpose is Malhari (P.W. 2) and Vithal (P.W. 6) The evidence of Malhari shortly was that on 24-10-1972 while he was in the lorry that had parked on Bombay Agra Road near eastern foot-path he had asked the injured person Abdul Rehman cleaner of the lorry to call a person on the opposite side footpath and that a taxi bearing No. MRS. 2704 proceeding from north to south on that road had knocked down the injured person while he was on the middle of the road and that the taxi driver did not wait. His further evidence is that the taxi was in a fast speed at that time. The evidence of Vithal (P.W. 6) the driver of the lorry is also to the same effect, excepting that like Malhari, he does not speak about the speed of the taxi. 9. Excepting this the prosecution has lead no other evidence to prove the evidence. The only part of the evidence of the said two witnesses that relates to the question of rash or negligent act is a solitary statement by Malhari that the taxi was in a fast speed at that time. In my view, this evidence by itself would not necessarily show that the accused was driving the taxi either rashly or negligently. The said evidence does not throw any light on how the incident had taken place. In my view, this evidence by itself would not necessarily show that the accused was driving the taxi either rashly or negligently. The said evidence does not throw any light on how the incident had taken place. There is no other evidence to indicate how the injured person had crossed the road at that time, whether he had crossed from front of the taxi or from its rear, whether the accused had put on the light, blow the horn, etc. which would have been necessary, to find out whether the accused had driven the taxi rashly or negligently. If the injured person had been examined he would have been able to shed light on the this. Mere fast speed would not unnecessarily amount to rash or negligent driving. Even the evidence does not show the rate of speed at which the taxi was being driven by the accused. The fact that the accused had sped away cannot be relevant to show that accused was driving rashly or negligently. Medical evidence does not show that the injuries suffered by the injured person were due to any rash or negligent act. In my view, therefore, the evidence led by the prosecution fails to prove that the accused was guilty of rash or negligent act. The learned Magistrate was therefore, in error in holding the accused guilty of the charge under Section. 279 or 338 of I.P.C. 10. The charge under section 89(a) and 89(b), however, stand on the different footing. As I have pointed out, the prosecution has proved that at the time of the accident, the said concerned taxi was being driven by the accused. In that case, it was the duty of the accused under sections 89(a) and 89(b) of the Motor Vehicle Act, (a) to take all reasonable steps to secure medical attention for the injured person, and, if necessary, convey him to the nearest hospital and (b) to report the circumstances of the occurrence at the nearest Police Station as soon as possible, and in any case within twenty-four hours of the occurrence. Admittedly, neither of the two things was done by the accused and, there before, the accused was guilty of the offences under section 89(a) and 89(b) read with section 118-A of the Motor Vehicles Act. Admittedly, neither of the two things was done by the accused and, there before, the accused was guilty of the offences under section 89(a) and 89(b) read with section 118-A of the Motor Vehicles Act. The conviction of the accused on the charge under sections 89(a) and 89(b) read with section 118-A of the Motor Vehicles Act by the learned Magistrate is, therefore, justified and has got to be sustained. The learned Magistrate has, however, sentenced the accused on the said charges for 15 days on each account. Looking to the fact that the serious charge against the accused under sections 279 and 338 has failed, I propose to reduce the said sentence to the imprisonment already undergone and order the same to run concurrently. It appears from the record that after the Magistrate passed the order on 18-7-1973, the accused was in custody till 28-7-1973 i.e. 10 days in all. Under the circumstances, I pass the following order: 11. The conviction and sentence of the accused under section 279 I.P.C. as well as 338 of the I.P.C. is set aside. However, the conviction of the accused under sections. 89(a) and 89(b) read with section 118-A of the Motor Vehicles Act, is sustained. The sentence meted out to the accused on the said two charges under sections. 89(a) and 89(b) of the Motor Vehicles Act, is set aside and instead of the accused is sentenced for the period of sentence already undergone with the sentence son both the counts to run concurrently. Bail bond cancelled. The order passed by the learned Magistrate disqualifying the accused from driving for a period of 6 months to stand. ------