N. D. VENKATESH, J. ( 1 ) THE accused in C. C. No. 1828 of of 1978. on the file of J. M. F C. , belgaum, has preferred this Revision against the concurrent findings of that Court and that of the II Addl. Sessions Judge, Belgaum, in Cr. A. No 135 of 1981, finding him guilty of offences punishable under Ss. 279, 337, 338 and 304-A of the Indian Penal code and sentencing him to various terms of imprisonment as set out in the said judgment. ( 2 ) THE facts, not in dispute, are : the accused was a driver of the truck bearing Registration No MEL 5236. Taking in the truck a large flock of sheep and goats and some persons, some of whom were the owners of the sheep, he was proceeding during the night between 23rd and 24th of March 1978, on Belgaum, bagalkot Road ; That between 4 a. m. and 6 a. m. , the truck dashed against a road side tree on that road and within the limits of Marlhal Police station of Belgaum District, resulting in the death of passenger Badsha imamsab Inamadar and injuries, simple and grievous, to several of those travelling in the truck. Of those who were travelling in the truck, P. W. 6 Ranoji Maktumsab bedarekar was sitting by the side of the driver in the cabin and others in the body of the truck, along with the sheep and the goats. ( 3 ) THE other facts established from the evidence on record are that, this truck (goods vehicle) was extensively damaged, in that, its front right side bumper had been pressed and damaged, front right side mudguard and front right side show also pressed and damaged; the driver's cabin had been broken ; front wind screen glasses of the truck broken into pieces and its frame damaged. In fact, the driver's seat also had been broken and damaged; both the doors had been broken : steering arm had been bent and damaged and fan blades also had been damaged. The accident was not due to any mechanical defects (See the evidence of the Senior Motor Vehicles inspector, P. W. 10 and his report ex. P. 14 ). In fact, the driver's seat also had been broken and damaged; both the doors had been broken : steering arm had been bent and damaged and fan blades also had been damaged. The accident was not due to any mechanical defects (See the evidence of the Senior Motor Vehicles inspector, P. W. 10 and his report ex. P. 14 ). ( 4 ) THE evidence of the Motor vehicles Inspector also shows that the vehicles had hit a tree which was on the right side of the road near the guttep. The scene of offence Panchanama ex. P. 2 discloses that, it was a tar toad, was a straight one on that point and the tarred portion was 22 ft in width with about 8 ft. of katcha road on either side. The tree to which this truck had dashed against, stood at the edge of that katcha portion of the road on the right side. ( 5 ) CAUSING hurt, grievous hurt and death by doing any act rashly or negligently, is made punishable under Ss. 337, 338 and 304-A of the indian Penal Code, respectively. ( 6 ) THREE out of those who were travelling in the truck and who had sustained injuries, have been examined in Court. They are P. W-4 -Irappa Ramappa Lamani, P. W-5 - gopal Baburao Agasagi and P. W-6 - ranoji Maktumsab Bedarekar. P. W-4, at the time of accident, was said to be sleeping. P. W-5 was unable to say as to how it had happened, as he was sitting in the body of the truck covered with tarpaulin and was not fn a position to see outside. It is only, P. W-6, sitting- by the side of this driver in the cabin, who says that the truck was in high speed when the accident had occurred. in cross-examination he has denied the suggestion that he was sleeping and therefore, did not know as to how the accident had taken place. ( 7 ) THE learned Counsel for the petitioner submitted that, in this state of evidence on record, the courts below should not have found his client guilty of the offences alleged against him. It is also his case that the evidence of P. W-6 should not have been believed by the court below and accepting the explanation offered by his client, he should have been acquitted. It is also his case that the evidence of P. W-6 should not have been believed by the court below and accepting the explanation offered by his client, he should have been acquitted. ( 8 ) ASSUMING that the oral evidence of P. Ws. 4, 5 and 6 is not worthy of acceptance, the question is is this a case in which, accepting the explanation of the accused, he should be acquitted ? ( 9 ) WHAT is his explanation? what he says is that, a bullock cart was coming on the road in the opposite direction ; that the bullocks having seen the head lights of the truck, had become frightened and had taken the cart hither and thither; and, that, to avoid the bullock cart, he had swerved the truck to the right side of the road and that unfortunately, in the process, this accident had taken place. ( 10 ) THE admitted and proved facts are narrated above. The width and the straightness of the road, the width of the tarred portion, the width on either side of the katcha portion of the road and the point where the truck had hit the tree, have, all been noted. If the truck driver was trying to avert hitting the bullock cart, as he says, and even if he had swerved in the process to his right side: why it should have further gone to that distance on the right side edge of the katcha road and hit the tree and that too with that impact is un-understandsble. His explanation does not explain this fact at all. , The explanation offered by him, in the circumstances, I must say, is not a plausible one. ( 11 ) NOW, as stated in para 6 above, of the three, witnesses travelling in the truck who have been examined, two did not say anything about the accident for the reason that one of them was sleeping and the other sitting in the body of the truck, which was covered, was unable to see outside; P. W. 6 did support the prosecution case and said that the truck driver was driving the vehicle in a great speed. This witness was a rustic villager and what he means when he says that the driver was driving speedily, is not clear; merely, because, the driver is taking his motor vehicle in a considerable speed on a straight road, it is not possible to jump to the conclusion that either he was rash or negligent. The evidence of P. W. 6 is too bald jor any comment. The circumstances of the case are such, that, if any, cah properly explair. as to how the accident might been happened, it is only the accused - the driver and none else; not even a person of the type of P. W-6 not well versed in the mechanics of the Motor Vehicles, though may be sitting by the side of the driver- ( 12 ) IN support of his contention that the burden to prove its case always lies on the prosecution and having failed to prove its case by positive evidence, it cannot, in the circumstances of the case, harp on the plea that the explanation offered by the accused is nor true and therefore, the accused not having discharged the burden that lav upon him to explain away the accident he should be presumed to be guilty and convicted. The learned Counsel for the petitioner accused also placed for my consideration a few authorities. ( 13 ) IT is true the law as in force in this country does not cast on the accused the burden of proving that no crime has been committed by him. At the same time, we should not forget what is provided for under s. 106 of the Evidence Act (1872 ). Certain facts which are "especially within his knowledge" should be proved by him. Say, for example, it he pleads alibi, he must prove the same. Likewise, if the prosecution succeeds in prima facie establishing the part played by the accused in the happening and if it is impossible or at any rate disproportionately difficult for the prosecution to establish certain facts, the said facts being especially within the knowledge of the accused concerning his role in the happening, he should explain away the same. It is for him to place on record and say as to what might have happened or as to how the situation nad developed etc. , so that the benefit of the same could be given to him. It is for him to place on record and say as to what might have happened or as to how the situation nad developed etc. , so that the benefit of the same could be given to him. The following observations in Shambhu nath Mehra v. The Slate of ajmer (A. I. R. 1956 SC. 404) may be noted :"s. 106 is an exception to S. 101. The latter with its illustration (a) 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. The word "especially" stresses that. It means facts that are permanently or exceptionally within his knowledge. " ( 14 ) THE counsel for the accused drew my attention in particular to nageshwar Sh. Krishna Chobe v. State of maharashtra (A. I. R. 1973 SC. 165 ). Apparently, the facts in that case appear to be similar to the facts of this case. But a closer examination of the facts in Nageshwar shows the dissimilarities in these two cases. It is true that in Nageslrwar, the bus being driven by the accused had suddenly mounted the foot-path and dashed against an electric pole resulting in the death of a person and this had happened in Bombay City. The case of the accused was that, when he was proceeding on the road at a moderate speed, a person had come suddenly in front of the bus while attempting to cross the road and that, in order to avoid hitting him, he - the driver, has applied his brakes turning the vehicle to the left and in the process, the bus had mounted the southern foot-path and struck against the electric pole. The trial Court and the High Court not believing in the version given by the accused, had found him guilty relying on the prosecution evidence and in that connection. the High Court had also taken into consideration the surrounding circumstances, which, according to the High Court, clearly spoke for themselves. The Supreme court took a different view of matter. The trial Court and the High Court not believing in the version given by the accused, had found him guilty relying on the prosecution evidence and in that connection. the High Court had also taken into consideration the surrounding circumstances, which, according to the High Court, clearly spoke for themselves. The Supreme court took a different view of matter. In its view, and this is important, the explanation offered by the accused was "not liable to rejection out-right" (para-10 ). The supreme Court re-appraised the evidence on record. It may be noted that in that case, the vehicle Involved was A double-decker bus. The place of accident was a busy locality. The explanation of the accused that a person had suddenly come in front of the bus while trying to cross the road, had been clearly established and in fact, that person had sustained injuries (para-2) and he had also not been examined in the case. Besides this, it is not clear whether the electric pole was just by the side of the road or it was far away on the extreme edge. If the electric pole was just by the side of the road, though on the foot-path, a swerve of the bus to the left perhaps was sufficient to hit the electric pole. There was evidence in that case that it was only the front left wheel of the bus that was on the foot-path. If that was so, the electric pole was just by the side of the road on the left side and the bus could not have gone far beyond the road while hitting it. The Supreme Court did notice in the case the very tardy manner in which the investigation had been done in the case. But as already stated, this accident had happened at about 5 or 6 a. m. on a straight road in the midst of a vast rural expanse. There could not have been and there was no heavy traffic. The possibility of some vehicle or person suddenly emerging from nowhere, as it often happens in a busy metropolitan area like bombay, did not at all arise here. The truck in the instant case having left the road and crossing the wide katcha portion, had hit a tree on the far edge. The possibility of some vehicle or person suddenly emerging from nowhere, as it often happens in a busy metropolitan area like bombay, did not at all arise here. The truck in the instant case having left the road and crossing the wide katcha portion, had hit a tree on the far edge. In the circumstances, his explanation that, to avoid a bullock carts he had swerved on the right side cannot be accepted. He should have seen the bullock cart, if there was any such cart on the road, from a considerable distance in , that straight road. The nature of the vehicle is also such that it cannot suddenly emerge and move, taking the passers by or others on the road by surprise. Therefore, the accused in this case cannot take advantage of the observations of the Supreme court in Nageshwar. In fact, the ratio enunciated in Nageshwar, to a considerable extent, helps the case of the prosecution in this case. These observations at para - 10 (B) may he noted :"no doubt when an accident like the present takes place one naturally expects the driver concerned to explain the circumstances in which he was obliged to take the bus on to the foot-path and to strike against the electric pole with such force, thereby killing one human being and injuring several others. The satisfactory nature of the explanation to absolve him of his criminal liability for the accident has, in such circumstances, to be appraised in the light of the entire evidence on the record. The onus of course remains on the prosecution and does not shift to the accused. The evidence of the bus, however, having mounted on to the foot-path, which, in the normal course, does not happen, is admissible and has to be duly taken into account in understanding and evaluating the entire evidence led in the case and in appraising the value of the explanation given by the accused for his compulsion which resulted in the accident. The appellant's explanation, even though not conclusive, does, in the absence of the testimony of the bhaiya and of at least some out of the passengers, said to have been travelling in the bus, who might have been able to throw some helpful light on the relevant circumstances, seem to leave fair scope for reasonable doubt about his guilt. . . . . . . . . . . . . . . Suffice it to say, if it appears, as it does in this case, that material evidence has not been collected by the investigating agency for reasons which are wholly unconvincing and the evidence actually produced, leaves a serious lacuna in bringing his guilt home to the appellant, then, merely because the nature of the accident prima facie requires an explanation from the driver, would not be sufficient to sustain his conviction if the truth of his explanation, which is not liable to rejection outright, could have been appropriately judged if the evidence left out by the for prosecution been produced. The learned Chief Justice on appeal did advert to the possibility of recording bhaiya's evidence at that stage. The idea was. , however, dropped because the appellant's counsel did not agree to examine him. " ( 15 ) IN this connection, the following observations in Mrs. Shkila khater v. Naudher Gama AIR 1975 SC 1324 ) may also be noted :"the facts in the case speak eloquently about what should have happened. The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic and the attempt, as in this case, to overtake the other vehicles resulting in going to the wrong side or the road and being responsible for the accident. " ( 16 ) IN one of its earlier rulings, in Ratnam v. Emperor (AIR. 1934 Mad. 209) the Madras High Court observes as under"a person driving a motor car is under a duty to control that car; he is prima facie guilty of negligence if the car leaves the road and dashes headlong into a tree and it is for the person driving the car to explain the circumstances under which the car came to leave the road. Those circumstances may be beyond control,. and may exculpate him, but in the absence of such circumstances, the fact that the car left the road is evidence of negligence on the part of the driver. Accused found guilty under s. 304-A. " ( 17 ) THE uncontroverted facts available on record eloquently speak of what had happened. I need not repeat them over again. and may exculpate him, but in the absence of such circumstances, the fact that the car left the road is evidence of negligence on the part of the driver. Accused found guilty under s. 304-A. " ( 17 ) THE uncontroverted facts available on record eloquently speak of what had happened. I need not repeat them over again. The only conclusion that we can reach is, that, the accident in question was due to the rash and negligent driving of the vehicle in question by the driver accused (petitioner ). The Courts below have rightiy held him guilty of the charges levelled against him. I find no good grounds to Interfere with those concurrent findings: ( 18 ) NOW, about the sentence. The accident took place about six years ago. He was driving this truck on a straight level road. Must have so driven the vehicle for a considerable period of time during that night. Having had no sleep throughout, perhaps, in the morning by about 5 or 6 a. m. he had started dozing, Possibly being sleepy, had lost control and had dashed against the tree. After considering all aspects of the matter, I feel that, it may be in the ends of justice, to reduce the sentences awarded by the two Courts below. Therefore, in substitution of the sentences awarded by the Courts below, the following order is made: the accused is sentenced to suffer simple imprisonment for three months and to pay a fine of Rs. 500 and in default, to suffer further simple imprisonment for one month. --- *** --- .