ORDER
M. Santhosh, J.
1. The petitioner before this Court was the accused in the trial Court. He was convicted by the trial Court for having committed an offence under Section 304.A, I. P. C., and sentenced to two years E. I. He was also convicted for an offence under Section 116 of the Motor Vehicles Act and sentenced to three months R. I. He was further convicted for an offence under Section 3 of the Motor Vehicles Act and sentenced to pay a fine of Rs. 100, in default to undergo S. I. for fifteen days. In the appeal filed by the accused, the learned Sessions Judge confirmed his conviction for an offence under Section 304.A, I. P. C. but altered the sentence to three months R. I. and a fine of Rs. 1000, in default to suffer S. I. for three months. The conviction of the accused for an offence under Section 3 of the Indian Motor Vehicles Act was also confirmed but the fine was reduced to Rs. 50. His conviction for the offence under Section 110 of the Indian Motor Vehiolea Act was set aside. This revision petition is directed against the order of the learned Sessions Judge confirming the conviction and sentence of the accused for the above said offences.
2. Sri B. G. Naik, learned Counsel appearing on behalf of the petitioner has contended that the prosecution has not made out that he caused the death of the deceased by any rash or negligent act. He argues that there is no nexus between the act of the accused and the death of the accused, P. W. 4, Pakeerappa, the only eye-witness examined in the case does not say that the accused drove the tractor rashly and negligently. Merely because the petitioner did not have a licence it does not follow that he was not proficient in driving the tractor. Shri Naik stressed that the intervening circumstance in the case i.e., the hook of the tractor being broken was the real cause of the accident as is evident from the deposition and the certificate given by the Motor Vehiolea Inspector. As the tractor was Doming down a hillock and as the trailor was loaded with stones and because of the snapping of the hook, the trailor must have hit the tractor which resulted in both the trailor and the tractor being thrown off the road and the deceased who was in the trailor met with his death as a result of the accident. Shri Naik, has strongly relied on the decision in Suleman Rahiman Mulani v. State of Maharashtra : 1968CriLJ1013 , in re, Natarajan AIR 1986 Mad 357 and in State v. Narhari Anant Naik AIR 1969 Goa, Daman and Diu, 87 in support of his contentions.
3. Shri Mandagi, learned Counsel appearing on behalf of the State has stressed the fact that the evidence discloses that the accused had no licence. Shri Mandagi further argues that there is no evidence in the case to show that the accused had any experience or proficiency in driving the vehicle. The evidence of P. W. 4 discloses that when he (ace used) was driving the tractor along with the accused there were two other persona sitting in the tractor and Shri Mandagi points out that the certificate of the Motor Vehicles Inspector discloses that seating capacity of the tractor was for only one person. It is also stressed that the panchanama of the scene of occurrence does not disclose that there were any brake marks. He has strongly relied on a decision in Bhalchandra v. State of Maharashtra : 1968CriLJ1501 in support of his contentions.
4, The important question for consideration in this case is whether the prosecution has proved that the accused caused the death of the deceased by his rash or negligent act. The only eye-witness examined in this case is P. W. 4, All that he has stated is that on the day in question he saw the accused driving the tractor. It is also in his evidence that two of the coolies were sitting in the tractor. The deceased who was his brother was sitting in the trailor. Thereafter, he saw the tractor falling to the left side of the road on : the : land of Rudrappa Kalal. He has nowhere stated that the accused was driving the tractor either rashly or negligently or at any excessive speed. The other two coolies who were in the tractor were examined by the prosecution as P. Ws 6 and 9. Both of them did not Support the prosecution and were treated as hostile and cross-examined by the Prosecutor. So their evidence does not in any way help the prosecution. The resultant position is that the prosecution has not let in any evidence to show that the accused drove the vehicle in a rash or negligent manner.
5. The prosecution itself has adduced evidence to show that the hook which was connecting the tractor to the trailer had been broken, P. W. 7 Mr. Kriahnappa, the Motor Vehicles Inspector who examined the vehicle shortly after the occurrence has stated that he found that the hook of the trailer hid been sheared off. lie has further staled that in his opinion the occurrence took place due to the shearing off the tractor and trailer through a hook. The certificate issued by him after the inspection of the vehicle bears out this fact. Merely because the vehicle has gone off the road, no inference can be drawn that this was due of the rash and negligent act of the accused. The evidence discloses that the vehicle was coming down the hillock and possibly because of the snapping of the hook, the trailer dashed against the tractor which resulted in throwing off the vehicle out of the read.
6. Sri Mandagi has contended that from the mere fact that the vehicle was thrown off the road. The necessary inference that the accused drove the vehicle rashly and negligently could be drawn and particularly when the accused was not qualified to drive the vehicle and had no licence. There is no general presumption that because the car left the road and met with an accident, there was rash or negligent driving on the part of the driver. The accident might be due to a variety of circumstances. In this connection it is useful to quote the observations made by Anantanarayanan, J., as he then was in AIR 1966 Mad 357. His Lordship has pointed out in the said decision that:
It is for the prosecution to establish the guilt of an accused person beyond reasonable doubt and the ingredients necessary to show that a particular offence was committed must be made out by the evidence adduced in prosecution. There is no initial burden on the accused to prove his innocence, and certainly there is no presumption that a man drove a lorry in a rash and negligent manner, merely because there was an accident. Section 304-A, Indian Penal Coda is no exception to the general principle that with regard to offences in the Indian Penal Code, at least, apart from special statutes which might embody special presumptions, the innocence of a person has to be assumed, till guilt is established.
In paragraph 5 of the judgment, his Lord, ship has observed as follows:.There could no general presumption that the fact that a car leases a road, is evidence of a rash and negligent driving. A meter vehicle may leave the road, and proceed on the margin or collide against some fixed structure of the margin, under a variety of circumstances. Some of those circumstances certainly may probabilise rash and negligent driving, but many other circumstances may not. There can be no burden on an accused to prove that he was not driving the vehicle in a rash and negligent manner because the prosecution proves the fact that the car left the road. For instance, as is the case with regard to all mechanisms there may be innumerable circumstances of defect not even within the knowledge of the driver of the vehicle. The road may be wet, slippery, or in some manner unsafe. The connection between the steering mechanism and the propelling mechanism in the car, might have been broken, or put out of gear, owing to a large variety of causes. In such a situation, the driver himself may not know why the car suddenly behaved in that manner fraught with such danger to the driver himself and to the other occupants of the car, It is difficult to appreciate how the driver could establish or prove a fact such as the disconnection of a particular mechanism of which ha himself might have been genuinely unaware.
7. In AIR 1963 S C 829 their Lordships have laid down that in a case under Section 304-A, Indian Penal Code the prosecution must prove the direct nexus between death of person and rash and negligent act of accused. In the said case, as in the instant case, the accused did not have any valid licence. Their Lordships have printed out that there was no presumption in law that a person who possessed only a learner's licence or possessed no licence at all did not know driving. In paragraph 8 their Lordships have observed as follows:
Assuming that the High Court was right in its conclusion that appellant No. 1 had not acquired sufficient proficiency in driving, therefore, he was guilty of a rash or negligent act in driving the jeep that by itself is not sufficient to convict him under Section 301-A, I. P. C. The prosecution must go further and prove that it was that rash or negligent act of his that caused the death of the deceased.
8. Proceeding further, in paragraph 9, their Lordships have observed that:
The requirement of this Section are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of accused was the prominent cause of the death. There must be direct nexus between the death of a person and the rash or negligent act of the accused. As mentioned earlier there is no evidence to show that it was rash or negligent act of the accused that accused the death of the deceased.
9. The facts in : 1968CriLJ1501 relied on by the learned Counsel for the State are entirely different from the facts of the instant case. In the said decision their Lordships have considered the case in : 1968CriLJ1013 referred to earlier by me and have pointed out that the facts of that case were different and distinguishable from the facts of the case in AIR 1938 SC 1319 Bhalachandra and Anr. v. The State of Maharashtra related to the negligence of the accused who were licencees under the Indian Explosives Act. Their Lordships have pointed out in that case that the appellants had committed a number of hazardous breaches of the rules framed under the Act and the conditions of the licences issued to them, particularly the storage of prohibited explosives and employment of children below the age of 18. It was pointed out, that the accused showed a callous disregard for the safety of the employees and because of these circumstances their Lordships held that the accused were guilty of an offence under Section 304-A, I. P. C.
10. In considering the question whether the accused is guilty of an offence under Section 304-A, I. P. C., the learned Sessions Judge has given a finding which is as follows:
There is no dispute that this trailer and the tractor had crossed the stone bund by the side of the road and had gone ahead into the fields. This circumstance clearly establishes that the driver of the vehicle was both rash and negligent. It is evident that this driver was not driving with a speed when he can control the vehicle. A person who drives a vehicle when he is not in a position to control the vehicle and allows the vehicle to jump over the bund and gets into the fields must be prima facie held to be guilty of negligence and rashness. Therefore, there is no doubt that the persons who drove the vehicle in. question at the time of the alleged occurrence was both rash and negligent in driving the same.
11. I have already pointed out that simply because the vehicle goes out of the road, there is no presumption that it was due to the rash or negligent driving of the accused. As has been pointed out by Anantanarayanan J. a Motor vehicle may leave the road or collide against some fixed structure under a variety of circumstances. There can be no burden on an accused to prove that he was not driving the vehicle in a rash and negligent manner. Merely because the prosecution proves that the car left the road, it does not necessarily follow that accused drove the vehicle rashly or negligently. There may be innumerable circumstances such as defect in the mechanism which might have resulted in the car going out of the road. In the instant case, I have already pointed out the opinion of the Motor Vehicles Inspector that the occurrence took place because of the snapping of the hook which connected the tractor with the trailer. After considering the evidence in the case, I am of opinion that the prosecution has not established by satisfactory evidence that the accused caused the death of the deceased by his rash or negligent act. I, therefore, set aside the conviction and sentence passed on the petitioner for an offence under Section 304-A, I. P. C.
12. So far as the conviction of the petitioner under Section 3 read with Section 116 of the Motor Vehicles Act is concerned, the evidence clearly discloses that the petitioner did not have any valid licence to drive the vehicle. Therefore, the conviction and sentence passed on the petitioner accused in respect of the said offence is confirmed.
13. In the result, with the modifications mentioned above, I dismiss this revision petition.