JUDGMENT : This is an appeal filed on behalf of the State, praying for the reasons mentioned therein, that the judgment passed by the learned Magistrate, Mapuca, acquitting the respondent-accused of the offences charged under sections 304A and 337 of the I. P. C. be set aside.

2. The charge against the respondent-accused was that on 9th November 1966 at about 8.30 p.m. he drove jeep no. GDA 3634 in a rash and negligent manner resulting in the death of Charles Silveira, one of the occupants, and also injuries to four other occupants. The respondent-accused pleaded not guilty to this charge. He led no evidence.

3. The prosecution examined witnesses Antonio de Souza (PW 1), Errol Mathias (PW 3), Roberto Dias (PW 4), Rullan Pereira (PW 5), Thomas D'Souza (PW 6) and Sub. Insp. Leonce Gracias (PW 7), in support of the charge. It may be stated that the powers of the High Court in an acquittal appeal are not different from the powers in hearing an appeal against conviction. It may also be stated that an accused starts with a presumption of innocence in his favour, and that this presumption is reinforced by an acquittal judgment This is a well-settled principle. The requirements of section 304A are that there must be a direct nexus between death of a person and rash and negligent act of the accused. A remote nexus is not enough. For the purpose of criminal law there are degrees of negligence and a very high degree of negligence is required to be proved before a charge can be sustained under this section and also section 337. Reasonable foresight is the criterion of negligence. In the case of negligence, the person accused does not do an act which he is bound to do. Mere negligence is not enough to bring a case within the ambit and scope of these sections. Negligence or rashness proved by evidence must be such as should carry with it a criminal liability. Criminal rashness is hazarding a dangerous act with the knowledge that it is so and that it may cause an injury. There is a breach of positive duty.

4. I shall consider the prosecution case at its best, and endeavour to show that the charge is not established against the respondent-accused. To start with, we have the evidence of prosecution witnesses Rullan Pereira and Thomas D'Souza. They were the occupants of the jeep when the accident took place on 9th November, 1966 at about 8.30 p.m. It will appear from their evidence that they were proceeding from Mapuca to Colvale in the jeep driven by the respondent-accused at about 8.30 p.m., and, on the way, the jeep suddenly shook and stopped and thereafter it dashed against the wall. It is also stated by them that the speed of the jeep at the time of the accident was normal and that it was "neither too fast nor too slow", and that the deceased was sitting in the front seat at one extreme end and in between him and the respondent-accused sat Fernandes who escaped with minor injury when the jeep dashed against the wall. They further deposed that as a result of this collision, the deceased fell from the jeep inside the compound of some property. Shri S. Tamba, learned Government Pleader, concedes that they do not support the prosecution. The evidence of Errol Mathias who inspected the vehicle on 17th November, 1966, after the accident shows that the right front tyre of the jeep was "flat or without air" and that he could not say whether the tyre "lost the air before or after the accident."

It is also in his evidence that all the tyres were in good condition. There is no evidence to show that the jeep had some mechanical defect before or at the time of the accident. According to him, he could not test the vehicle because the right front spring hanger was broken. This evidence does not in any way implicate the respondent-accused. According to Shri Usgaonkar, learned counsel for the respondent-accused, the probable cause of the accident may be that the tyre burst at the time of the accident. Antonio de Souza is a Panch witness of the place of the ac

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