The main legal point established in the judgment is that for a conviction under section 304A of the Indian Penal Code, the prosecution must prove that the accused's negligence bordered on an intention to cause injury and that the act complained of was of such a gross nature that it amounted to taking the risk of causing death.

JUDGMENT :

L. Rath, J. - The petitioner has approached this court assailing his conviction u/s 304A, Indian Penal Code and sentence of R.I. for six months also confirmed in appeal. The facts of the prosecution case are that on 10.11.1980 at 3 p.m. the van of which the petitioner was the driver had failed to start due to some trouble in the engine and hence attempt was made to push-start it from the front as the vehicle was on a down gradient road. While the petitioner was at the steering, PW1 was pushing the vehicle from the front and one Bidya Naik was at the rear looking to the vehicle's back side. At that time some boys were playing in the verandah of one Sarat Chandra Tripathy whose son ran towards the vehicle and came under it meeting with instantaneous death. It is the prosecution version that the petitioner had failed to stop the vehicle in spite of the indication given to him by Bidya Naik for the same.

2. Mr. Sahu, the learned counsel for the petitioner, has, in challenging the conviction, urged that there was no material before the court to come to the conclusion of the ingredients of Section 304A Indian Penal Code having been satisfied so as to bring home the charge against the petitioner.

3. PW 1 was the only witness to the occurrence. It appears from his evidence, a copy of which has been supplied by Mr. Sahu, that Bidya Naik, who was looking to the back side of the vehicle, had indicated to the petitioner prior to the accident to stop the vehicle. In cross-examination the witness admitted that he saw the boy for the first time after the accident, lying under the van. The only other evidence is that of PW 3, the Motor Vehicles Inspector, whose statement was to the effect that while reversing the vehicle the driver could not notice a small child playing at the back for which the vehicle dashed the child and that before reversing the vehicle, the driver should have been careful by keeping a man at the rear to give signal which the driver had failed to do. In cross-examination he admitted that statement of his of there having been no man posted at the back side to give signal was only a presumption at any rate the evidence is of no substance in view of the evidence of PW 1 that Bidya Naik had been at the back doing the job.

4. From such evidence the conclusion reached by both the courts below of the petitioner having been guilty of the section is hardly warranted. For a conviction u/s 304A, Indian Penal Code, what is essential to be proved is that the negligence of the accused was of such a degree that the negligence would border an intention to cause the injury. The act complained of must be rash one of such gross nature that it would amount to taking the risk knowing the hazards of it of being capable of causing death. So far as the facts of the case are concerned, the sole evidence of PW 1 does not show any such act to have been committed by the petitioner. There is no evidence as to at what point of time the indication was given by Bidya Naik to stop the vehicle and there is also no evidence that on getting the indication the petitioner did not stop the vehicle. There is also no evidence of whether the child came running behind the vehicle after the indication was given or before it and whether indication was given at a point of time when it was possible for the vehicle to have been stopped before it ran over the child. More often than not it happens that while reversing a vehicle if an indication is given for stopping the same, the application of the brake becomes the reflex action of the driver. From the mere statement of PW 1 that Bidya Naik had given indication to stop the vehicle, it cannot be said that such reflex action of the petitioner had not occurred. Bidya Naik, the most competent witness to the occurrence, has not been examined without any explanation for the same. Considering the facts and circumstances of the entire case, it cannot be said that the prosecution has been able to establish the case agains