JUDGEMENT R. Bhattacharya, J.;- The Appellant Arjun Tewari was convicted under Ss.279, 337 and 304-A of the I. P. C. and also under S.118 of the Motor Vehicles Act by a Presidency Magistrate, now known as Metropolitan Magistrate, Calcutta, but sentenced only for the conviction under S.304-A. I. P. C. to undergo rigorous imprisonment for one year. 2. The prosecution case is that on 23-11-1968 one Radharani Mondal, a maid servant was escorting a boy aged about 5 years named Tapas from his School to his house at about 11. a.m. She was holding the hand of the child. While she was crossing the road at the junction of Sovabazar Street and Maharsni Deben-dra Street, Calcutta, a lorry dashed against them causing the instantaneous death of the child and some hurt to Radharani. The registration number of the lorry was WBK-6573. The driver immediately fled away leaving the lorry on the spot. Several people collected. Police came, examined witnesses and submitted chargesheet against the accused who was alleged to have driven the lorry. The accused pleaded not guilty. 3. In this case several witnesses were examined and several documents were proved. According to the evidence the driver of the lorry left the place abandoning the lorry after it had dashed against the victims and nobody could see the accused actually driving the lorry at the time of the incident. The prosecution has however examined Awadh Narayan Sukla, P.W. 15 who maintained the garage register of the offending lorry No. WBK-6573. He produced the garage register and proved. It is Ext. 8. His evidence is that on the date of incident, the accused took away the lorry from the garage at 7 a. m. after signing the garage register Ext. 8 in his presence. The witness has proved the signature of the accused in the register and it is Ext. 8/1. The evidence is that P. W 15 saw the accused taking away the lorry from the garage and the accused was sitting in the driver's seat. There is no challenge or cross-examination suggesting that the accused did not take away the lorry from the garage. The only suggestion was that in the absence of the driver of a car, another person could move a car by starting it. It is, of course, no wonder that a car may be driven by another person who knows how to drive. The only suggestion was that in the absence of the driver of a car, another person could move a car by starting it. It is, of course, no wonder that a car may be driven by another person who knows how to drive. The learned Magistrate on consideration of the facts and circumstances, was satisfied that it was the accused who was driving the car and dashed against the victims. 4. It has been contended from the side of the appellant before us that as no witness had seen the accused driving the lorry at the time of the incident, the learned Magistrate should not have held that it was the accused who was driving the lorry at the relevant time. According to Mr. Sarkar for the appellant, the lorry might have been driven by another person without the knowledge of the appellant. In this connexion our attention has been drawn to the decision of the Division Bench of this Court in Lachman Singh v. The King AIR 1949 Cal 235: (50 Cri LJ 456). In that case the accused specifically pleaded during his statement that he was not driving the lorry when the accident took place. It appears that there was an order for remand for taking further evidence. In spite of such direction, the prosecution failed to prove that the thumb impression appearing in the garage register indicating the taking out of the lorry was that of the accused. So the evidence remained what it was before the order for remand allowing an opportunity to adduce evidence to prove that it was the accused who had taken out the offending lorry from the garage. In that connexion regarding S.106 of the Evidence Act, it has been stated in that case, "It cannot be attracted where the fact in question having regard to its nature is such as to be capable of being known not only by the accused but also by others if they happen to be present when it took place". S.106 relates to a fact within the special knowledge of a person. In the case referred to us, we find that the prosecution was given a chance to connect the accused with the thumb impression appearing in the garage register in the absence of any eye witness but the finger print expert failed to prove in that respect. S.106 relates to a fact within the special knowledge of a person. In the case referred to us, we find that the prosecution was given a chance to connect the accused with the thumb impression appearing in the garage register in the absence of any eye witness but the finger print expert failed to prove in that respect. It has been found in that case, ".........there is no evidence on the record though evidence could be available as to who was the person who was driving the lorry at the relevant time". It is to be noted that nowhere has it been stated in that case that no accused in motor accident case can be found guilty unless there is any eye witness to prove that the accused was actually found driving the vehicle at the time of incident. In that case it was not proved by the prosecution, though it got a chance on remand for the purpose, that the accused took out the lorry from the garage by proving the thumb impression in the garage register as that of the accused. Those facts are different from the fact and circumstances appearing in the case we are now considering. 5. On the provision of law appearing in S.106, Evidence Act, we have now several decisions of our Supreme Court as to its applicability in criminal cases where the general accepted principle is that the prosecution is to prove the case against the accused beyond all reasonable doubts. The onus of proof on the prosecution is well known in our country. In the case of Krishan Kumar v. Union of India, AIR 1959 SC 1390 : (1959 Cri LJ 1508) the appellant was convicted under S.5 (1) (c) of the Prevention of Corruption Act, 1947 for dishonestly and fraudulently misappropriating money in the discharge of his duty as a public servant. It was held as follows:- In the case of a servant charged with misappropriating the goods of his master the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss then the facts being within the servant's knowledge, it is for him to explain the loss. If the failure to account was due to an accidental loss then the facts being within the servant's knowledge, it is for him to explain the loss. It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course, the prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and then by reason of S.106 of the Evidence Act to throw the onus on him to prove his innocence. 6. In Sawal Das v. State of Bihar reported in AIR 1974 SC 778 : (1974 Cri LJ 664) the Supreme Court clearly held: Neither an application of S.103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. In that case the Supreme Court made a reference to its previous decision in the case of Gurcharan Singih v. State of Punjab, AIR 1956 SC 460 : (1956 Cri LJ 827) and said,- This Court held in Gurcharan Singh v. State of Punjab, AIR 1956 SC 460 that the burden of proving of a plea specially set up by an accused, which may absolve him from criminal liability lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstances absolving him from criminal liability may have existed is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt. 7. In the case of Shambhunath Mehra v. The State of Ajmer, AIR 1959 SC 404: (1956 Cri LJ 794), the Supreme coun had to consider the question of onus of proof. S.106 of the Evidence Act was held an exception to S.101 which lays down the general rule about the burden of proof. 7. In the case of Shambhunath Mehra v. The State of Ajmer, AIR 1959 SC 404: (1956 Cri LJ 794), the Supreme coun had to consider the question of onus of proof. S.106 of the Evidence Act was held an exception to S.101 which lays down the general rule about the burden of proof. Speaking about S.101 of the Evidence Act, the Supreme Court held: This lays down the general rule that in a criminal case the burden of proof is on the prosecution and S.106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. 8. On consideration of the provisions of law regarding the onus of proof and the decisions of the highest Court of our country, there can be no doubt that S.106 of the Evidence Act is also applicable in criminal cases. The general law is that the prosecution is to prove the case against the accused beyond reasonable doubts by adducing evidence, direct or circumstantial. establishing reasonable probability raised to the standard of proof about the commission of the offence in question as required by the Evidence Act. If the Court believes the prosecution case on the evidence, it is enough and for such moral conviction, eye witness is not always required. There may be cases where no eye witness is available but circumstantial evidence may prove such cases. Once the Court thinks that a case is acceptable against the accused on evidence either direct or circumstantial, and if the accused takes up a plea based on facts which are within his special knowledge as required under S.106 of the Evidence Act, it is for him to prove that plea and the onus of proof in that case lies on him. Of course the standard of proof of that plea is not so high as in the case of prosecution. Of course the standard of proof of that plea is not so high as in the case of prosecution. If the accused by adducing evidence on his behalf or by cross-examining the witnesses of the prosecution brings out materials which may create reasonable doubt as to the strength of the prosecution case or if such materials give rise to a reasonable probability about the plea set up by the accused, then certainly the accused cannot be convicted but should be acquitted. 9. Now coming to the case we are considering, we get the evidence of P.W. 15 who maintains the garage register. He saw the accused driving out the lorry from the garage by signing the register at 7 a.m. and that very day at about 11 a. m. the said lorry ran over the victim boy and dashed against the maid servant P.W. 1. The evidence is that the driver fled away and that none could see the driver and as such the driver could not be identified by any passerby. There was no cross-examination of P.W. 15 to challenge the evidence that the accused drove out the lorry from the garage by signing the register. There was no suggestion that the lorry was taken away from the possession of the accused by anybody else before the accident. It has been argued before us that before the incident the lorry was driven by some other person in the absence of the accused and it was that man who was responsible for the death of the boy. In this case the circumstantial evidence adduced by the prosecution proves that it was the accused who drove the offending lorry at the time of accident and that was the only reasonable finding on evidence. If the accused wants to set up a plea that he was not driving the lorry at the time of incident or that somebody else was driving the lorry which he took out from the garage only a few hours before the incident, the onus must be on the accused to prove the fact he alleged as it was within his special knowledge. In the present case unfortunately there is no material in favour of the plea of the accused. The learned Magistrate was justified to hold that the lorry driven by the accused dashed against the victims. In the present case unfortunately there is no material in favour of the plea of the accused. The learned Magistrate was justified to hold that the lorry driven by the accused dashed against the victims. The decision in, AIR 1949 Cal 235 : (50 Cri LJ 456), relied on by Mr. Sarkar is of no help to him. 10. The next point that requires consideration is whether the accused was driving the lorry rashly and negligently so as to be liable for the death of the boy as alleged by the prosecution. From the evidence we get that Maharshi Debendra Road about 20 feet wide runs from north to south. At the northern end of the said road runs Sovabazar Street from east to west. The lorry dashed against the maid servant and the child at the junction of the two roads but on the left hand or western side of Maharshi Debendra Road. The lorry was coming from south to north towards the junction. P.W. 1 has stated that from the east she was coming holding the hand of the boy and at the junction she turned to the south. At that time she saw a lorry running Up and she moved away to the western side of the road. The sketch map showing the place of incident is Ext. 9. If P.W. 1 turned to the south coming from the east, she could not have any occasion to go to the western side of Maharshi Dabendra Road. Moreover, when she saw the lorry moving, she was on the eastern side of the junction of the roads. The lorry was on the western side of the road. It was unexpected that P.W. 1 who was on the eastern side of the 20 feet wide road when the lorry was proceeding along the western side, would suddenly go to the western side at the sight of the moving lorry on the western side. There could be no reason or occasion for any person having ordinary common sense to cross a wide road running in front of a moving lorry holding the hand of a child. The evidence is that the driver of the lorry applied the brake to stop the lorry. There could be no reason or occasion for any person having ordinary common sense to cross a wide road running in front of a moving lorry holding the hand of a child. The evidence is that the driver of the lorry applied the brake to stop the lorry. P.W. 1 managed to go beyond the lorry but the child whom she was holding by hand behind her was run over by the lorry to meet his untimely death. The evidence is that the incident took place when the lorry was just turning to the left to enter Sovabazar Street. The evidence shows that P.W. 1 carelessly and unwisely tried to cross the road from the east while the lorry was passing along the western side of the road. This movement of P.W. 1 with the boy was unexpected and the accused, of course, immediately applied the brake to stop the lorry but before it stopped, the boy had been run over and dead. There was no mechanical defect in the lorry as stated by an expert P.W. 4. There is no reliable evidence that the lorry was moving at high speed. The evidence indicates that the accused was not rashly or negligently driving the lorry. Rather P.W. 1 practically rushed against the lorry with the child before the driver could take any step to avoid the accident. He was not responsible for the inevitable accident resulting in the death of the child. The accused was not guilty in respect of the charges under Ss.279, 337 and 304-A of the Indian Penal Code. 11. The accused was charged under S.118 of the Motor Vehicles Act 1939 for the violation of S.89 of the said Act. The penal section of the Act for breach of S.89 is S. 118-A and not S.118. The evidence shows that the accused knew that two persons were injured due to the accident but he fled away without taking any steps to convey any of the injured persons to the nearest hospital. There is no evidence that there was any reasonable apprehension for the driver to be subjected to any violence which might result in his death or hurt at the hands of any person. He did not inform the police station as required under the provisions of S.89 of the Motor Vehicles Act. There is no evidence that there was any reasonable apprehension for the driver to be subjected to any violence which might result in his death or hurt at the hands of any person. He did not inform the police station as required under the provisions of S.89 of the Motor Vehicles Act. He is, therefore, liable to be punished under S.118-A read with S.89 of the Act. 12. In the result, the appeal is partly allowed. He is acquitted of the charges under Ss.279. 337 and 304-A of the Indian Penal Code but is convicted under S.118-A instead of under S.118 of the Motor Vehicles Act and sentenced to pay a fine of Rupess Twenty five on that account, in default to suffer rigorous imprisonment for a week. 13. He is discharged from his bail bond. MONOJ KUMAR MUKHERJEE J. :- I agree. Appeal partly allowed.