JUDGMENT Per Rajiv Sharma, Judge. This appeal is directed against the judgment dated 20.1.2006 passed by learned Additional Chief Judicial Magistrate, Jawali, District Kangra, H.P. in Criminal Case No.43-II/2000 whereby accused/respondent, Jugal Kishore, was acquitted for offences punishable under Sections 279, 337, 304-A of the Indian Penal Code and 185 of the Motor Vehicles Act and was convicted and sentenced to pay a fine of Rs.400/-and in default of payment of fine, to undergo simple imprisonment for a period of thirty days under Section 181 of the Motor Vehicles Act and to pay a fine of Rs.2000/- and in default of payment of fine to undergo simple imprisonment for a period of three months under Section 192 of the Motor Vehicles Act. 2. The case of the prosecution, in a nutshell, is that the accused was driving the scooter bearing registration No.PJU-2704 on 18.4.2000. The scooter hit Zulmi Devi at village Dhan. She became unconscious and was taken to hospital. The matter was reported to the police. The FIR, Ext.PW5/A was recorded. The investigation was conducted by PW7 ASI Kulwinder Singh. He prepared the site plan Ext.PW7/A. The scooter was seized vide seizure memo Ext. PW2/A. The accused also suffered injuries in the accident. He was medically examined by PW4 Dr. Sucha Singh vide MLC, Ext.PW4/A. Zulmi Devi was also medically examined by PW4 Dr. Sucha Singh vide MLC Ext.PW4/B. She suffered simple injuries and a head injury. She was advised for X-ray examination. Later on, Zulmi Devi succumbed to injuries. The post mortem on the body of Zulmi Devi was conducted by PW8 Dr. Randhir Thakur vide Ext.PW8/A. The scooter in question was mechanically examined by PW6 Surinder Paul vide Ext. PW6/A. The photographs, Ext.PW1/A to Ext.PW1/C were taken. The statements of the witnesses were recorded. The investigation was completed and the challan was put up in the trial court after completing all codal formalities. 3. The prosecution examined as many as eight witnesses in support of its case. The respondent was examined under Section 313 Cr.P.C.. He denied the case of the prosecution and pleaded innocence. Learned trial court acquitted the respondent for the offences punishable under Sections 279, 337, 304-A of the Indian Penal Code and Section 185 of the Motor Vehicles Act and convicted and sentenced him under Sections 181 and 192 of the Motor Vehicles Act, vide judgment dated 20.1.2006. 4. Mr. He denied the case of the prosecution and pleaded innocence. Learned trial court acquitted the respondent for the offences punishable under Sections 279, 337, 304-A of the Indian Penal Code and Section 185 of the Motor Vehicles Act and convicted and sentenced him under Sections 181 and 192 of the Motor Vehicles Act, vide judgment dated 20.1.2006. 4. Mr. Parmod Thakur, learned Additional Advocate General, has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Dinesh Thakur, learned Advocate, has supported the impugned judgment dated 20.1.2006. 6. I have heard learned counsel for the parties and have gone through the pleadings and record carefully. 7. PW1, Swaran Singh, deposed that he visited the spot at the instance of police on 18.4.2000. He took photographs Ext. PW1/A to PW1/C. 8. PW2, Ramesh Kumar, deposed that he was running a shop at Dhan. According to him, on 18.4.2000, at about 4.00/5.00 P.M., one scooter bearing registration No.PJU-2704 came from Jawali side towards Dhan. It was being driven by the accused. One woman was going by the side of the road. The scooter hit the woman. She fell down and received injuries on her head and arms. The blood started oozing from the injuries. She was taken to Jawali Hospital. The accident took place due to negligence of the accused. The police recorded his statement vide Ext. PW2/A. The police also took into possession the scooter vide memo Ext. PW2/B. In his cross-examination, he deposed that there were other shops adjoining to his shop. These shops were closed. His shop was at a distance of 50 mts from Dhan Chowk. There was a blind curve between his shop and the spot, where the accident took place. At the time of accident, 4-5 persons were purchasing the items from his shop. He did not know their names. He categorically admitted that he did not know whether the woman was walking in middle of the road or by the side of the road. He knew the accused. He did not know whether the accused was driving scooter on his side or in the middle of the road. According to him, there was a lot of traffic at Dhan chowk. 9. PW3, Ramesh Kumar, deposed that on 18.4.2000, an old lady was hit by a scooter bearing registration No. PJU-2704. The scooter was being driven by the accused. He did not know whether the accused was driving scooter on his side or in the middle of the road. According to him, there was a lot of traffic at Dhan chowk. 9. PW3, Ramesh Kumar, deposed that on 18.4.2000, an old lady was hit by a scooter bearing registration No. PJU-2704. The scooter was being driven by the accused. The old lady received injuries and was taken to Jawali Hospital. The scooter was taken into possession by the police vide memo Ext.PW2/B. According to him, the accident took place in his presence. The scooter was being driven at high speed. The respondent also received injuries in the accident. In cross-examination, he deposed that he came to know about the accident when about 15-20 persons gathered at the spot. There was a blind curve on the spot. According to him, initially the old lady was walking on left side of the road and when she heard noise of the scooter, she came in the middle of the road. He denied the suggestion that the accused was not driving the scooter at high speed. He admitted that the accused had blown the horn on curve. 10. PW4, Dr. Sucha Singh, medically examined the accused vide MLC Ext.PW4/A. He also medically examined Zulmi Devi vide MLC, Ext.PW4/B. 11. PW5, S.I. Ambia Ram, proved on record copy of FIR, Ext.PW5/A. 12. PW6, Surender Paul, mechanically examined the scooter vide Ext.PW6/A. 13. PW7, Investigating Officer, Kulwinder Singh, deposed that he reached the spot and seized scooter. He recorded the statement of Ramesh under Section 161 Cr.P.C. He prepared the site plan vide Ext.PW7/A. He also got clicked photographs of scooter. He got conducted the post mortem of Zulmi Devi. In his cross-examination, he measured width of the road on the spot, however, he did not mention the same in the site plan. 14. PW8, Dr. Randhir Singh Thakur, conducted the post mortem on the body of Zulmi Devi vide Ext.PW8/A. 15. PW1 Swaran Singh has not seen the manner in which the accident has taken place. He has taken the photographs Ext.PW1/A to Ext.PW1/C at the instance of the police. PW2 Ramesh Kumar, has deposed that he has seen the accident. According to him, the woman was hit by the scooter. She fell down and received injuries on her head and arms. The blood started oozing from the injuries. He has taken the photographs Ext.PW1/A to Ext.PW1/C at the instance of the police. PW2 Ramesh Kumar, has deposed that he has seen the accident. According to him, the woman was hit by the scooter. She fell down and received injuries on her head and arms. The blood started oozing from the injuries. She was taken to Jawali Hospital. In his cross-examination, he has specifically stated that he did not know whether the woman was walking in middle of the road or by the side of the road. According to him, there was blind curve on the spot. PW3, Ramesh Kumar, reached the spot when about 15-20 persons gathered there. In his cross-examination, he has admitted that there was blind curve on the spot and the accused had blown the horn. He also deposed that initially the old lady was walking on left side of the road and when she heard noise of the scooter, she came in the middle of the road. Thus, PW3 Ramesh Kumar cannot be termed to be an eye witness. It is clear from the site plan that the accident has taken place in the middle of the road. It is, thus, proved that the deceased Zulmi Devi was walking in the middle of the road. The accused has taken all precautions by blowing horn on blind curve. PW7, Investigating Officer, Kulwinder Singh, has not even mentioned the width of the road in the site plan. The accused himself has suffered injuries as is evident from MLC, Ext.PW4/A. It is duly established on record that the accused was driving the scooter, but it cannot be said that the accident was caused due to his negligence since as per site plan, Ext.PW7/A the accident has taken place in the middle of the road. None of the witnesses have deposed that what was the speed of the scooter. The witnesses have only deposed that the scooter was being driven at high speed. There is no clinching evidence to establish on record there was any rashness or negligence on the part of the accused. The learned trial court has rightly come to the conclusion that the prosecution has failed to prove on record that the accused was driving the scooter in a rash and negligent manner, which caused death of Zulmi Devi. 16. There is no clinching evidence to establish on record there was any rashness or negligence on the part of the accused. The learned trial court has rightly come to the conclusion that the prosecution has failed to prove on record that the accused was driving the scooter in a rash and negligent manner, which caused death of Zulmi Devi. 16. Now, as far as charge under Section 185 of the Motor Vehicles Act is concerned, suffice it to say, the accused was not properly medically examined to this effect. The Doctor has only stated that the accused was smelling of alcohol. Learned trial court has rightly convicted the accused for the offences punishable under Sections 181 and 192 of the Motor Vehicles Act, since he was not holding driving licence and was driving the scooter without registration. The accused has not chosen to file any appeal against his conviction and sentence under Sections 181 and 192 of the Motor Vehicles Act. 17. In Tukaram Sitaram Gore vs. State, AIR 1971 Bombay 164, learned Single Judge of Bombay High Court has held that high speed of motor vehicle does not by itself prove rashness or negligence of driver. Learned Single Judge has further held that there can be no presumption of negligence from the mere fact that a man is knocked down and killed by a motorist. Learned Single Judge has held as under :- 3. As far as the first point is concerned, the Supreme Court has, in its unreported decision, D/-21-3-1968 in Criminal Appeal No.154 of 1965 (SC), held that the use of the expression “high speed” (that being the expression used by a witness in the case before the Supreme Court) was not enough to prove rashness or negligence, unless evidence was elucidated from the witness who used that expression as to what his notion of speed was. As far as witness Kasturi Satayya is concerned, no evidence whatsoever has been elicited from him to show what his notion of “fast speed” was. As far as witness Yasmin Khan is concerned, an attempt has been made to elicit from him, in the course of cross-examination, as to what his notion of “fast speed” was, and he stated that the lorry was, in his opinion, proceeding at a speed of 35 miles per hour when the boy was knocked down. As far as witness Yasmin Khan is concerned, an attempt has been made to elicit from him, in the course of cross-examination, as to what his notion of “fast speed” was, and he stated that the lorry was, in his opinion, proceeding at a speed of 35 miles per hour when the boy was knocked down. The speed of 35 miles per hour is, no doubt, slightly in excess of the speed-limit in the city (except along Marine Drive), but it fan by no means be said to be a speed which is so excessive as to amount, per se, to rashness or negligence. The evidence that the accused was driving the motor lorry at fast speed at the time of the incident is, therefore, of no avail to the prosecution in the present case. 6. There is no other fact emerging from the prosecution evidence from which such an inference can be drawn. Hearing criminal appeals during the last few months, I have come across several cases of prosecutions under Section 304-A in which Magistrates appear to have presumed negligence, once a man is knocked down and killed by a motorist. There can be no such presumption. Not only must there be evidence of rashness or negligence acceptable to the Court but, as laid down by the Supreme Court in the case of Suleman Rahiman v. State of Maharashtra, 70 Bom LR 536 at P. 538 = ( AIR 1968 SC 829 at p. 831) there must be proof that the rash or negligent act of the accused was the proximate cause of the death and there must be a direct nexus between the death of a person and the rash or negligent act of the accused. In running-down cases the death of the pedestrian may very well be purely accidental, or may be due to his own negligence. To presume that because a pedestrian has been knocked down and has died, the driver of the motor vehicle that knocked him down must be guilty of rashness or negligence overlooks these two possibilities. It is necessary for subordinate courts to bear in mind that the prosecution must produce evidence to establish rash or negligent driving of the motor vehicle by the accused. It is necessary for subordinate courts to bear in mind that the prosecution must produce evidence to establish rash or negligent driving of the motor vehicle by the accused. I am told that, at one time, it was the practice of the Chief Presidency Magistrate of Bombay to allot running down cases only to those Magistrates who in the city has now become very acute and I wonder whether it would not be advisable for the Chief Presidency Magistrate to revert to that practice, if it is possible to do so. ” 18. Their Lordships of Hon’ble Supreme Court in Mahadeo Hari Lokre vs. State of Maharashtra, AIR 1972 Supreme Court 221 have held that if a pedestrian suddenly crosses a road without taking note of the approaching bus there is every possibility of his dashing against the bus without the driver becoming aware of it. The bus driver cannot save accident, however, slowly he may be driving and therefore, he cannot be held to be negligent in such a case under Section 304-A of Indian Penal Code. Their Lordships have held as under :- “4. It must be said that there is really no good evidence on the side of the prosecution to show how exactly the accident took place. All that P.W.2 Vijay Kumar, the friend of the deceased, was able to say was that the deceased left him at Point B. Since the deceased came under the left front wheel, it can be only inferred that he must have crossed the road to the Western side. That seems to be borne out by the F.I.R. of P.W.1. Dayanand who says that when he was standing near point C he saw Ravikant going by the C.P. Tank Road towards tin batti, that is, towards the North and at that time he saw the bus dashing against him with its left side mudguard. The High Court has, in one place, held that while Ravikant was going along the road from South to North, he was suddenly dashed by the bus coming from behind. In the first place, it is rather difficult to hold that Ravikant would be walking in that street from South to North some 14' away from the Western kerb of the road. In the first place, it is rather difficult to hold that Ravikant would be walking in that street from South to North some 14' away from the Western kerb of the road. Secondly in his evidence before the Court Dayanand, P.W.1 did not stick to this case in the F.I.R. He stated that Ravikant was actually crossing from the Western side of the road to the Eastern side of the road. If that is true, it will only mean that Ravikant was not dashed from behind as he was going towards North but the impact took place when he was crossing the road from West to East. The High Court was not quite clear on the point and so it observed at another place "that was precisely the reason why he (appellant) could not see the man walking ahead of him or trying to cross the road in front of his bus". If Ravikant was walking along the street in front from South to North and the bus was coming from behind, it can be legitimately said that the Driver of the bus would see him in front and if he dashed against Ravikant as he was walking along, that would undoubtedly amount to negligence on the part of the Driver. It may have been, perhaps, fool-hardy on the part of Ravikant to walk in the middle of the road about 14' away from the kerb. But that would not justify the Bus Driver knocking him down after taking due note that he was walking straight in front of the Bus. But the case assumes a different complexion. If we agree with the sole eye witness in the case Dayanand P.W.1 that at the time of the impact Ravikant was actually crossing the road from West to East. That would mean that if Ravikant suddenly crossed the read from West to East without taking, note of the approaching bus there was every possibility of his dashing against the bus without the Driver becoming aware of his crossing till it was too late. If a person suddenly crosses the road the Bus Driver, however, slowly he may be driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the Bus driver was negligent.” 19. If a person suddenly crosses the road the Bus Driver, however, slowly he may be driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the Bus driver was negligent.” 19. Their Lordships of Hon’ble Supreme Court in State of Karnataka vs. Satish, (1998) 8 Supreme Court Cases, 493 have held that merely driving of the truck at a “high speed” does not lead to the inference that negligent or rash driving had caused the accident resulting in death of, and injuries to, a number of persons. Their Lordships have further held that negligent or rash driving of truck has to be established by the prosecution and cannot be automatically presumed on the basis of res ipsa loquitur. High speed is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by “high speed” in the facts and circumstances of the case. Their Lordships have held as under : “4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case. 5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High court in acquitting the respondent is a perverse view. To us it appears that the view of the High court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged.” 20. Accordingly, in view of the observations and analysis made hereinabove, there is no merit in the appeal and the same is dismissed. Bail bonds are ordered to be discharged. Pending application(s), if any, also stands disposed of. No costs.