ORDER : The applicant, Shiva Ram, is a driver of a motor truck who has been convicted by a magistrate of Jhansi, under Ss. 279 and 304-A, I.P.C., and sentenced to six months' rigorous Imprisonment under each count. The sentences were ordered to run concurrently. The applicant appealed to the Court of the sessions Judge, Jhansi, but his appeal was dismissed, and the findings arrived at and toe convictions and the sentences awarded by the trying Magistrate were affirmed. The applicant now prays for interference by this Court in exercise of its revisional powers.

2. It has been contended by M.L. Agrawala, very vehemently, that the applicant is not guilty of any offence under Ss. 279 and 304-A, I.P.C., and that the view of the Courts below that the applicant was driving the truck "rashly" and "negligently" within the purview of R. 304-A, I.P.C., thereby causing the death of one Filial, who was sitting on the extreme left on the front seat of the truck, is perverse and contrary to law. The learned counsel contended that the Sessions Judge had failed to distinguish between criminal and civil negligence. Mr. Agrawala cited a number of authorities. He relied particularly on Tika Ram V. Rex, AIR 1950 All 300 and Chaman Lal v. State, 1953 All LJ 689 : (AIR 1954 All 186) and State Government M.P. v. Bhawanesh Kumar, AIR 1958 Madh Pra 205 and Bharosi v. State, AIR 1957 Madh Pra 236.

3. It has not been argued on behalf of the accused-applicant, either in this Court or in the Courts below, that the Immediate cause of death of Pillai was not the act of driving by the accused. It has, however, been contended that the applicant has not done any "grossly" rash or negligent act" and that the requirements of criminal negligence or rashness on the part of the accused were, therefore, wanting in this case. After considering the facts of this case, the law applicable to these facts, and the arguments advanced by Mr. Agrawala, I do not find it possible to accept the contentions advanced on behalf of the applicant. But, as there appears to be some difficulty in distinguishing between civil and criminal wrongs in such cases, I propose to examine the facts and to state my reasons for holding that all the requirements of Sec. 304-A, I.P.C., are satisfied in this case. The facts of the case, as found by the courts below, are :

Hira Lal (P.W. 7) had hired the truck driven by the applicant to get some wood from Bangawan to Jhansi. The truck left Jhansi on 29-6-1962 in the evening and reached Bangawan at about mid-night. Hira Lal (P.W. 7), who was in the truck, got the wood loaded immediately after the truck, reached Bangawan. After this, instead of taking some rest and going to sleep at Bangawan, like a reasonable and normal individual, the applicant, was so rash as to hurry back to Jhansi with the result that, at about 5 a.m., on 30th June, 1962. While driving the vehicle, the applicant was suddenly overcome by sleep and dozed off. As a consequence of this dozing off, the applicant lost control over the truck which lurched to the left. The applicant then woke up with a start and swung the, truck to the right. The truck turned suddenly and violently to the right and collided against a "sheesham" tree after having left the road and crossed, the foot-path. As a result of this collision of, the truck with the tree, Pilla, mentioned above, was, so seriously injured that he expired soon afterwards at a hospital where he was taken, and Hira Lal (P.W. 7) was also injured, although he survived.

4-5. The learned Sessions Judge also recorded the following findings :

"I am convinced that the appellant was driving the truck with defective brakes. I am also convinced by the evidence of Hira Lal that the truck, even though loaded, was going at a fast speed. I am also convinced that the appellant had dozed off and had lost control of the truck when the collision took place. It is clear that the appellant had driven the vehicle on a public way in manner so rash and ne