JUDGMENT : K.P. Mohapatra, J. - This revision is directed against the order passed by the learned Additional Sessions Judge, Ganjam at Berhampur maintaining the conviction and sentence of the Petitioner for an offence u/s 304-A of the Indian Penal Code. 2. The facts of the case in brief are that the Petitioner was the owner and driver of a jeep bearing registration No. ORS 4290. On 26-4-1978 the Petitioner was himself driving the vehicle on the National High Way between Patrapur and Berhapur. Near village Narayanpur, it was alleged, the vehicle dashed against an old woman named Champa Pradhan while she was attempting to cross the road. As a result of the accident, she fell down sustained bleeding injuries and subsequently died. It was alleged that the accident and death of the old woman was on account of the rash and negligent driving of the vehicle by the Petitioner. 3. The trial court framed charges against the Petitioner under Sections 279 and 304-A of the Indian Penal Code. The Petitioner pleaded that he was neither driving the vehicle rashly nor negligently and that the death of the old woman was not on account of the vehicular accident. The trial court accepted the prosecution case and convicted the Petitioner under Sections 279 and 304-A of the Indian Penal Code and sentenced him to undergo R.I. for four months on each count. The Petitioner preferred an appeal and the learned Additional Sessions Judge while maintaining the conviction and sentence u/s 304-A set aside the conviction and sentenced u/s 279 of the Indian Penal Code. 4. The prosecution in all examined 11 witnesses, out of whom, P.Ws. 3 and 5 were stated to be eye-witnesses to the alleged accident. P.W. 6 was the Medical Officer who conducted the post-mortem examination on the dead body of the old woman. P.Ws. 7 and 10 were the investigating officers. P.W. 9 was the Motor Vehicles Inspector. The other witnesses were either seizure or post occurrence witnesses. 5. According to the Medical Officer (P.W. 6) who conducted the post-mortem examination on the dead body of the deceased and submitted his report (Ext-2), the deceased had as many as 7 external and 9 internal injuries. According to his opinion, the cause of death was due to shock and haemorrhage as a result of both external and internal injuries found by him. According to his opinion, the cause of death was due to shock and haemorrhage as a result of both external and internal injuries found by him. The injuries could have been caused by the impact of blunt force as a result of vehicular accident. 6. In a case of this nature it is apt to notice the note of caution struck by a learned single Judge of the Madras High Court in a case reported in In Re: Ambalal. He observed: Quite often and generally it the bystanders are illiterate the prejudice is against the motorist. The behaviour of the motorist may also provoke it. Occasionally if there happen to be knowledgable persons there is a tendency on their part to become biased in favour of the unfortunate motorist, with woe begone countenance who may not harm or think or hurting a fly. This prejudice is often reflected in the evidence and may even invade the examination of the culpability of the accused unless one is wary and colour the judicial vision. In cases of this kind, it is therefore, very necessary that the Court must ward off and keep out of this prejudice and examine the evidence on record in the light of circumstantial evidence and probabilities and dependable oral evidence, which gets probabilised by circumstances. It is also necessary to refer to the decisions of this Court, one reported in Pritam Singh v. State 35 (1969) C.L.T. 723, and the other reported in Trinath Panigrahi v. State 41 (1975) C.L.T. 245. In the earlier decision, relying upon decisions reported in Suleman Rahiman Mulani and Anr. v. State of Maharashtra 1968 S.C.D. 581, State v. Lokanath Bagarti 1950 O.J.D. 703, Bharosi Vs. State, and H.W. Smith Vs. Emperor the learned single Judge held that in order to constitute an offence u/s 304-A of the Indian Penal Code, the death of a person must have been caused by the accused doing any act in a rash or negligent manner, and as such there must be positive proof that the rash or negligent act of the accused was the proximate cause which resulted in the death of the deceased. There must be direct news between the death of a person and the rash or negligent act of the accused. There must be direct news between the death of a person and the rash or negligent act of the accused. In order to amount to criminal rashness and criminal negligence one must find 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 indiference to the consequences. In the latter decision it was held that the onus is on the prosecution to establish beyond reasonable doubt that the vehicle was being driven in a rash or negligent manner. What is rash or negligent driving would depend upon the facts and circumstances of each case. No hard and fast rule can be laid down. With the aforesaid principles in the background, it is necessary to consider the evidence adduced by the prosecution so as to determine the culpability of the Petitioner. 7. As already referred to P.Ws. 3 and 5 were stated to be eye-witnesses to the occurrence whose evidence was accepted by the trial court. In appeal, the learned Additional Sessions Judge discarded the evidence of P.W. 3 on the ground that he was a post-occurrence witness as deposed to by the Investigating Officer (P.W. 7). He, however, relied upon the evidence of P.W. 5 on the assumption that he was an eye-witness to the alleged accident. Mrs. A.K. Padhi, learned Counsel for the Petitioner, urged that P.W. 5 like P.W. 3 was a post-occurrence witness and so the evidence of both the witnesses cannot be given any credence so as to determine the culpability of the Petitioner. This contention requires careful examination. The Investigating Officer (P.W. 7) stated in his cross-examination that P.W. 3 was a post-occurrence witness. In para 7 of the judgment the learned Additional Sessions Judge on reference to the evidence of P.W. 7 found that P.W. 3 has the tendency to speak lies and so no reliance could be placed on his tainted evidence. Therefore, he rejected the evidence of P.W. 3. In para 7 of the judgment the learned Additional Sessions Judge on reference to the evidence of P.W. 7 found that P.W. 3 has the tendency to speak lies and so no reliance could be placed on his tainted evidence. Therefore, he rejected the evidence of P.W. 3. On going through the evidence of P.W. 5 it appears that he saw the alleged accident of the jeep driven by the Petitioner dashing against the old woman at a distance of 3 to 4 cubits, which means, this witness was very much present near the place of the accident. Curiously, however, P.W. 3 who claimed to be an eye witness to the accident stated in his chief-examination, as well as, in his cross-examination that after the deceased was removed from the place of the accident, P.W. 5 along with others arrived at the spot. If P.W. 3 himself was a post occurrence witness, in view of his evidence, both in chid-examination and cross-examination, P.W. 5 was equally a post-occurrence witness who could not have seen the alleged accident. In consideration of the aforesaid state of evidence which reasonably creates doubts as to the veracity of these two witnesses, it cannot be said that they were eye-witnesses or were present near the place of accident when it took place. If the evidence of these two witnesses is ruled out of consideration there is no other evidence on record to show that the vehicle driven by the Petitioner in a rash and negligent manner dashed against the old woman causing hear death. 8. P.W. 9 was the Motor Vehicles Inspector whose evidence is material. He stated that he examined the jeep bearing registration No. OES 4290 and found no damage to the vehicle. The mechanical instruments of the vehicle were in order. According to his opinion the probable cause of the accident was not on account of any mechanical defect in the vehicle (Ext. 4). Mrs. A.K Padhi urged that the Motor Vehicles Inspector did not visit the place of accident so as to examine the skid or other marks caused by sudden application of brake of the vehicle, if any at the time of the alleged accident. Had he done so, it would have been possible on his part to report about the probable speed at which the vehicle was running just prior to the alleged accident. Had he done so, it would have been possible on his part to report about the probable speed at which the vehicle was running just prior to the alleged accident. It is in fact a lacuna in the prosecution case that the Motor Vehicles Inspector (P.W. 9) was not deputed to the place of accident to examine the skid and other marks, if any, caused due to the alleged accident. In the absence of any such evidence, it is impossible to say that the vehicle was ruining at a high speed and in a reckless manner so as to cause the accident. Some prosecution witnesses have stated that because of the noise caused by the engine of the vehicle they could guess that the speed of the vehicle was quite high. Such evidence of ignorant persons having no idea of mechanical vehicles is precarious and cannot be readily accepted. 9. Having gone through the evidence, both oral and documentary, adduced by the prosecution it is impossible to find that the prosecution succeeded in proving beyond reasonable doubt that the Petitioner was driving the vehicle in a rash and negligent manner. The prosecution also did not succeed in a proving the essential ingredients of an offence u/s 304-A of the Indian Penal Code and as such it is not possible to get a clear picture as to how the accident took place. May be, when the vehicle was passing on the road, the old woman oblivious of the passing vehicle attempted to cross the road and on account of her own negligence came in front of the vehicle. In the ultimate, analysis the Petitioner could not be convicted and sentenced for an offence u/s 304 of the Indian Penal Code. 10. In the result, therefore, the petition is allowed and the order of conviction and sentence passed by the courts, below is set aside. The Petitioner is acquitted. He be set at liberty. The bail bond is discharged. Final Result : Allowed