Full Judgment
Bajpai, J.
1. The accused applicant was convicted by a learned Magistrate under Section 304-A, I.P.C. and sentenced to six months' rigorous imprisonment and a fine of Rs. 100. The conviction and sentence were confirmed in appeal by the learned Sessions Judge. The facts are that the accused was driving a motor lorry No. 1064 from. Mirza Murad to Benares. Another lorry-No. 1034 was coming in the opposite direction from Benares to Mirza Murad. There was then a collision, as a result of which a woman in lorry No. 1064 fell out, received injuries on the head and died. Near about the time of this collision there was another lorry going in front of lorry No. 1064 and there was further a small car which had passed just about that time. The natural consequence of all these four vehicles passing on the road at about the same time was that a cloud of dust had gathered, and visibility was very dim.
2. It has been argued before me that the death of the woman cannot be attributed directly to any action of the accused, and there is no finding by the Court below to that effect. What the lower appellate Court has found definitely is that the accused was driving too fast considering the lack of visibility, and that this act of driving too fast was rash and negligent. This, to my mind, is not enough to fix a criminal liability on the accused. The death of the woman was due to the collision and unless the Courts below find as a fact from the evidence on the record which, it must be conceded, in the present case, is very conflicting that the accused was responsible for the collision his conviction under Section 304-A is not legally sustainable. The learned Counsel on behalf of the applicant has relied on the case of Emperor v. Omkar Ram Partap (1902) 4 Bom LR 679, and I am of the opinion that the law has been laid down correctly in that case. It was held that to impose criminal liability under Section 304-A, I.P.C, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have the causa sine qua non. It is conceded that if on account of the fast driving of the applicant the woman had been by reason of a jerk thrown out of the lorry and killed, or if some pedestrian in the way had been knocked down and killed, the applicant could have been legally convicted under Section 304-A. But in the present case the death of the woman was due to the collision and in order to impose a criminal liability on the accused it must be found as a fact that the collision was entirely or at least mainly due to the act of the applicant and there being no such finding by the lower appellate Court his conviction cannot be sustained. I am therefore of the opinion that so far as the evidence in the present case goes it is not sufficient to establish that the accused was wholly or mainly responsible for the collision. The result is that I allow this application set aside the conviction and sentence and direct that the accused be forthwith set at liberty and the fine, if paid be refunded.