There is no presumption of rash and negligent driving merely because an accident occurred. The burden is on the prosecution to prove the guilt of the accused beyond reasonable doubt.

ORDER : This revision proceeding raises an interesting question of the circumstances under which rashness and negligence can be presumed, against the driver of a motor vehicle with regard to the scope of S. 304-A, I.P.C. The facts are that the revision petitioner Natarajan, alias Natesan has been convicted by the courts below of the offence under S. 301-A, I.P.C. and the substance of this charge being that be drove lorry MDJ 3715 on the Tindivanam-Tinivannamalai road near mile stone 34 Meal about 3 and on 12-1-1962, in such a rash and negligent manner that he dashed it against a culvert resulting in the capsising of the lorry, since the sudden fall to the ground of the proprietor, one Moosa Sahib, who was then sitting on the top of lorry. This Moosa Sahib received fatal injuries, due to the fact that the iron articles with which the lorry had been loaded fell upon him and occasioned those injuries.

2. The facts are within a very brief compass, and I have to agree with learned counsel for the revision petitioner, that on the facts of the record, the conviction cannot be possibly sustained I may point out initially itself that there appears to be no reason why S. 304-A. I.P.C. should he any exception to the general maxim of criminal jurisprudence. It is for the prosecution to establish the guilt of an accused person beyond reasonable doubt and the ingredient is 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. I.P.C. 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.

3. There is a marked paucity of evidence in this particular case. Part of it is hearsay, in character and is not even admissible. P.W. 3, who was the proprietor of a rice mill in this locality, came to the scene of accident, after hearing the noise of, the accident, and he extricated the revision petitioner, who himself had been pinned underneath the lorry. This was with the help of a jack appliance, which was borrowed from another lorry. There were iron articles that had fallen down from the vehicle and underneath them was found the body of the unfortunate victim, Moosa Sahib. P.W. 5 one Natarajan states that P.W. 1, the cleaner of the lorry, told him that the driver (accused) had slept and that it was on account of this that the lorry had capsized. This is merely hearsay evidence, and, further, P.W. 1 (the cleaner) did not corroborate this in his evidence. On the contrary, he claimed that he was himself sleeping at that time, owing to over-work, and the prosecution treated him as a 'hostile' witness, because his evidence was at variance with his first report Ex. P-1. Since the evidence of P.W. 1 does not show that the revision petitioner fell asleep while driving the lorry, and the supposed statement of P.W. 1 to P.W. 5 is really hearsay, and not admissible at all, there is no residue of legal evidence, upon which it could be presumed that the revision petitioner had been rash and negligent. The learned Sessions Judge in the criminal appeal seems to have been aware of this particular difficulty. He observes." The learned Magistrate should not have taken it for granted that P.W. 1 stated that the appellant there revision petitioner was sleeping". But, extra-ordinarily enough, immediately after this, the learned Sessions Judge seems to assume that the appellant must have been sleeping while driving the lorry. As I pointed out, this is not based on legal evidence, and in the absence of legal evidence, such a conclusion of fact is not warranted.

4. This apart, the learned Sessions Judge also appe