JUDGMENT : S. Acharya, J. - The Petitioner stands convicted under Sections 279 and 304-A, Indian Penal Code, and for the latter mentioned offence he has been sentenced to undergo R.I. for five months, and no separate sentence has been awarded for the offence u/s 279, Indian Penal Code. 2. The Petitioner was the driver of the tractor bearing registration No. M.R.P. 4581 belonging to Dandakaranya Project. The deceased was the Sectional Officer in that Project, and the Petitioner was working under him at the relevant time. On the date of occurrence the Sectional Officer (the deceased) was returning from M.V. No. 90 to M.V. No. 90 in the evening in the aforesaid tractor driven by the Petitioner. On the way, at about 9.30 p.m. one of the wheels of the tractor went over a gravel heap on the road as a result of which the Sectional Officer, who was sitting on the tractor, was thrown out and the rear wheel of the tractor ran over his head. The deceased sustained injuries on his head and died soon thereafter. On the allegation of rash and negligent driving the Petitioner was charged for offences under Sections 279 and 304-A, Indian Penal Code and he has been convicted of the same. In defence the Petitioner asserted that at the relevant time he was driving the vehicle under the orders of the deceased who was his immediate boss, and the accident took place for no fault of his though he was driving the tractor slowly and in a very careful manner. 3. From the impugned judgment it appears that the Petitioner has been convicted of the aforesaid offence mostly on the ground that he was driving the vehicle at night without the head lights, its foot brakes were not wholly efficient, there was no hand brake in it, there was excessive play in its steering system and the deceased was sitting on it in a precarious position in the middle between the driver and the bonnet though there was no seat provided at that place. The Court below finds that driving the said tractor in that condition after night fall was itself a negligent act and though the Petitioner drove that vehicle under the direction of the deceased he could not be absolved of the guilt as he would be presumed to know the consequences of his driving the vehicle at night in the aforesaid circumstances. 4. To constitute either of the offences u/s 279 or 304-A, Indian Penal Code, proof of criminal rashness or criminal negligence is essential. "In order to establish criminal liability the facts must be such that the negligence of the accused went beyond a mere matter of compensation and showed such disregard for life and safety of others as to amount to a crime". Bharosi Vs. State. "In order to amount to criminal rashness or criminal negligence it must be found that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences," State v. Loknath 1959 O.J.D. 703. "There must be direct nexus between the death of a person and the rash and negligent act of the deceased. x x x x. There must be proof that the rash or negligent act of the accused was the proximate cause of the death." Suleman Rehiman Mulani and Another Vs. State of Maharashtra. Lord Atkin in Andrews v. Director of Public Prosecutions (1937) 2 All. E.R. 552 has observed that "Simple lack of care such as will constitute civil liability is not enough. For liability under the criminal law, 'a very high degree of negligence' is required to be proved. Probably, of all the epithets that can be applied, 'reckless' most nearly covers the case." In this connection the decisions reported in Pritam Singh v. State 35 (1969) C.L.T. 723, Raghunath Behera Vs. State of Orissa Ladukishore Panigrahi v. The State 37 (1971) C.L.T. 1142, Emperor v. W.S. Priestley AIR 1944 Sind 124 and H.W. Smith Vs. Emperor may also be seen. 5. State of Orissa Ladukishore Panigrahi v. The State 37 (1971) C.L.T. 1142, Emperor v. W.S. Priestley AIR 1944 Sind 124 and H.W. Smith Vs. Emperor may also be seen. 5. Therefore, accident merely due to error of judgment of the driver or without anything to show that he was conscious of the risk that evil consequences will follow or that his rash driving was of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby would not make the driver criminally liable for an offence either u/s 279 or 304-A, Indian Penal Code. In criminal trial, as opposed to civil proceedings where preponderance of probabilities is sufficient, the burden of establishing the charge against the accused rests on the prosecution and the standard or proving the same is always beyond all reasonable doubts. Criminality is never to be presumed subject to statutory exceptions, and criminal negligence or rashness should not be presumed in such a case merely on the application of the maxim res ipsa loquitur. Moreover, mere non-observance of the requirements of the rules framed under the Motor Vehicles Act or driving a vehicle which is not in its ideal condition would not necessarily amount to wilful rashness or negligence required to constitute an offence under the aforesaid sections. Barry, J. In Horabin v. British Overseas Airways Corporation (1912) All. E.R. 1016, has observed: The mere fact that an act was done contrary to a plan or to instructions, or even to the standards of safe-flying, to the knowledge of the person doing it, does not establish wilful misconduct on his part, unless it is shown that he knew that he was doing something contrary to the best interests of the passengers and of his employers or involving them in a greater risk than if he had not done it. A grave error of judgment, particularly one apparent as such in the light of after events is not wilful misconduct if the person responsible thought he was acting in the best interest of the passengers and of the aircraft. The law on this aspect of the matter has been very succinctly enunciated in the decision of the Supreme Court in Syad Akbar Vs. State of Karnataka, . 6. The law on this aspect of the matter has been very succinctly enunciated in the decision of the Supreme Court in Syad Akbar Vs. State of Karnataka, . 6. In this case both the Courts below have found on consistent prosecution evidence that the Petitioner at the relevant time was driving the vehicle in question under the orders of the deceased, the immediate boss of the Petitioner. P.W. 2, the Helper of the tractor, and P.Ws. 3 and 4, the two coolies who at the time of the accident were on the trailer attached to the tractor, have unequivocally stated that the Petitioner was driving the tractor 'slowly and carefully'. The tractor left the work site No. M.V. 60 at 630 p.m. and the occurrence took place at a distance of 18 miles therefrom at 9.30 p.m. So the tractor was moving at a speed of only about 6 miles per hour when the accident took place. The accident took place on the day following the Purnima, and there is nothing on record to show that in that moonlit night the place where the accident took place was dark or that it was not possible for the driver to see the road ahead. That being so, criminal negligence or rashness cannot be attributed to the Petitioner on the fact of his driving the tractor without the head lights. There is also no evidence to show that the other defects in the tractor, found by P.W. 7, any way contributed to the accident, Though according to P.W. 7 the foot brake and the steering system of the tractor were not in good order, there is nothing to show that the tractor could not be stopped whenever desired or could not be steered properly. Rather from the prosecution evidence it is seen that the tractor stopped immediately the brakes were applied by the Petitioner at the place of the accident, and it could be driven through the 18 mile route in the normal manner with a trailer with persons on it, attached to it P.W. 3 has stated that at the place where the occurrence took place the road was very narrow. That possibly was the reason for the wheel of the tractor to go up on the Morrum heap stacked on the right side of that narrow road when the deceased slipped off from the tractor. That possibly was the reason for the wheel of the tractor to go up on the Morrum heap stacked on the right side of that narrow road when the deceased slipped off from the tractor. P.W. 3 has stated that he was also sitting near the deceased on the same tool box on the tractor. But he did not fall out of the tractor due to its wheel going up on the Morrum heap. On the above facts, merely because the tractor's wheel ran over the Morrum heap it cannot be said that the Petitioner was recklessly driving the vehicle in a rash or negligent manner knowing that injury was most likely to be occasioned thereby. Moreover, the deceased by sitting on the tool box on the tractor in between the driver and the bonnet without any firm protection except the mudguard of the vehicle, took upon himself the risk and the consequences of his own act. As the deceased was the immediate boss of the Petitioner it was not excepted of the latter to ask the deceased not to sit on the tractor in the aforesaid manner, or that he would not drive the vehicle with the deceased sitting on it in that manner. There is no evidence of recklessness or indifference to the consequences on the part of the Petitioner in this case. 7. Considering the facts and circumstances of the case I am of the view that criminal rashness or negligence, which is required to constitute an offence either u/s 279 or u/s 304-A, Indian Penal Code cannot be attributed to the Petitioner beyond reasonable doubt, more so on the admitted prosecution evidence that he was driving the vehicle 'slowly and carefully'. On a careful perusal of the evidence on record I am rather inclined to accept Mr. Swain's suggestion that the accident took place as the deceased took his seat in the tractor in a precarious position without caring for the risk and consequences of the same, and without being mindful of the expected jolts and bumps of the tractor while moving on the said road. 8. On the above considerations, the conviction of the Petitioner under Sections 279 and 304-A, Indian Penal Code cannot be maintained. Accordingly, his conviction for the said offences and the sentences passed against him thereunder are hereby set aside, and he is acquitted of the same. 8. On the above considerations, the conviction of the Petitioner under Sections 279 and 304-A, Indian Penal Code cannot be maintained. Accordingly, his conviction for the said offences and the sentences passed against him thereunder are hereby set aside, and he is acquitted of the same. The Criminal Revision is accordingly allowed. Final Result : Allowed