The prosecution must establish the accused's rash and negligent driving as the cause of the harm in order to secure a conviction.

JUDGMENT - M.S. APTE, J.:---This is an appeal by the State against the order passed by the Judicial Magistrate acquitting the respondent of the charge under sections 304-A and 279 of the Indian Penal Code.

2. It is not in dispute that the accused Bramhadatta was a driver of tanker bearing No. MRS 7925. On the Morning of August, 10, 1972, he was driving this tanker from Bombay to Poona. When he was nearing the Octroi Naka, at Nigdi, on the outskirts of Poona, he was required to stop. Two trucks were already standing in front of this Naka on the left hand side of the road.

3. The tanker driven by the accused gave a dash to the second truck which was standing infront of the other truck and due to this impact, one child which was being carried on her shoulders by his sister Shalan (P.W. 4) was seriously injured. They tried to give medical aid to the child, but the child unfortunately succumbed to the injuries when it was on its way to the hospital.

4. These facts are not a tall in dispute.

5. The accused was, therefore, prosecuted for driving the vehicle rashly and negligently and also for causing the death of the child by such rash and negligent act.

6. The defence of the accused was that he was driving the vehicle at moderate speed and with a view to bring his vehicle to a halt behind other two trucks on his left side of the road, he even tried to apply brakes but the mechanism of the brakes failed with the result that the tanker dashed against the other truck and the child was crushed under it.

7. The trial Court on the evidence led by the prosecution found that the prosecution failed to establish that the death of the child was caused due to rash and negligent act of the accused. Consequently the accused was acquitted.

8. Mr. Bardy took me through the entire evidence and urged that the evidence establishes that the accused was rash and negligent.

9. It is, however, not possible to accept this contention. There is absolutely no evidence to show that the accused was driving the vehicle in a rash or negligent manner. No doubt one or two oft the witnessses have stated that the tanker was in fast speed. However, that cannot be easily accepted; because admittedly the accused was required to stop the vehicle at the Naka and the person at the Naka has stated that he had signalled the accused to stop the vehicle and accordingly the accused had taken the vehicle on the left hand side of the road with a view to bring it to a halt.

10. The mere statement that the vehicle was in fast speed is not sufficient to hold that the truck was really in fast speed and, therefore, the accused was necessarily rash and negligent in driving the same.

11. Besides, the Motor Vehicle Inspector has been examined in the case and he was not in a position to state whether the brakes of the vehicle were or were not in order. It is defence of the accused that the brakes at the nick of time failed and therefore, he could not control the vehicle and it dashed against the other vehicle. Besides, it has also appeared in the evidence of Shalan that she got frightened and threw the child and ran away for safety. Whether she threw the child in front of the moving vehicle is also not clear. The defence of the accused, therefore, that the brakes having failed he could not control the vehicle cannot be excluded. In this connection it is also necessary to bear in mind that the place where the accident occurred was on a slope and the vehicle was descending the slope.

12. In this state of evidence, the order of acquittal therefore, appears to be correct. The appeal is dismissed. Bail-bond stands cancelled.

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