R.N. Misra, J.
1. The petitioner, driver of a Plymouth car, has been convicted under Sections 279/304A, I. P.C. and sentenced to R. I. for three months and to pay a fine of Rs. 500/- or in default suffer Rule I. for 1 1/2 months more. The learned Magistrate further directed that if fine be realised the entire amount be paid under Section 545 Cr. P.C. to the legal representatives of the deceased. The appeal has been dismissed.
2. The prosecution case in brief is that at about 5.30 p.m. on 19-11-1966 the petitioner was driving a Plymouth car bearing registration No. ORJ. 766 on the road from Bhubaneswar to Puri. At a place of about 10 miles before Puri the vehicle is said to have dashed against a pedestrian named Budhi Jena who died at the spot. The matter was reported to the police on the same day and after due investigation the petitioner was charge-sheeted. The plea of the accused was that the vehicle was not running rashly and the deceased came and dashed against the vehicle and sustained the injury leading to his death. At the trial nine witnesses were examined for the prosecution. The defence did not examine any witness. According to P. W. 1. he and the deceased were going together and he is the only witness who saw the actual occurrence. P. W. 7. a Government Officer was returning in a car from Puri side and reached the spot a little while after the incident. According to him the car was left at the spot and the owner of the car along with the other members of his family were brought by him to the Police Station, Later on the accused came with the car to the Police Station. The Motor Vehicles Inspector has been examined as P. W. 6. His report Ext. 5 shows that the vehicle did not have any mechanical defect and he was of the view that the vehicle must have been running at a speed of 25 miles per hour.
3. Mrs. Padhi for the petitioner contends on the authority of a decision in this Court in 1967. 33 Cut L T 971 Lanka Koteswar Rao v. State that the Courts below went wrong in relying upon the answer of the petitioner in his examination under Section 342 Cr. P.C. There was no evidence on the side of the prosecution to connect the petitioner as the driver of the vehicle and, therefore, there was no occasion for the learned Magistrate to put such a searching question to the accused. The nature of the question was such that it was foreign to the scope of Section 342 Cr. P.C. and having obtained an answer in an untenable way it was not open to the learned Magistrate to utlise the same as evidence in the case, I do not think the decision in question has application to the facts of the case. As the facts of the reported decision show that there was a prosecution under the Essential Commodities Act for contravention of Rule 4 of the Rice. Movement Control Order, 1964. It was alleged that the petitioner was transporting rice contrary to the Order. There was no evidence connecting the accused with the transportation of paddy. One witness had appeared to say that he had heard that it was the paddy of the accused. In such background this Court held that as there was no evidence to connect the accused with the transportation of paddy no question should have been put to the accused Under Section 342 Criminal P.C. on that point and an admission of the accused should not have been utilised against him in the absence of prosecution evidence to that effect.
The facts of the present case are very different. The evidence of P. Ws. 1 and 7 read together leave no doubt in my mind that the petitioner was the driver of the vehicle. From the evidence it transpires that they were the only two male members sitting on the front side while the ladies and the children were behind. The evidence on the side of the prosecution in this case seems to be somewhat clear and, therefore there was enough justification for the committing Magistrate to put the question. The justification of putting the question by way of granting an opportunity to the accused to explain the circumstances appearing against him in the prosecution evidence is one matter but the position is very different when once the question is so put. There is an unambiguous answer. There can be no fetter on its utilisation. In the present case there was enough incriminating material in the evidence of the prosecution to show that the petitioner was driving the vehicle. As such asking of the question may not be objected to, The answer is clear. This contention of Mrs. Padhi must therefore fail.
4. The next contention is that the vehicle was in order and was driven at a small speed of 25 miles per hour and the condition of the road was good. From the evidence of the prosecution it appears that the road was wide enough. It was a heavy car and, therefore, the speed of 25 miles per hour as spoken to by the Motor Vehicles Inspector cannot be considered to be at all objectionable from any point of view. P. W. 1 who was going along with the deceased on the road at the time of the incident says that even though the time was about 5.30 p. m. the head lights of the car were on. P. W. 6 found the vehicle still on the tarred portion. As the evidence stands, it is indeed difficult to hold that the incident was not anything other than an accident.
Their Lordships of the Supreme Court in dealing with a case under Section 304A. I. P.C. in : 2SCR622 Mohd. Rangawalla v. Maharashtra State have said that the prosecution has to show that the death was the direct result of rash and negligent act of the accused and the act must be the cause without intervention of another's negligence. It must be the cause causans it is not enough that it may have been the cause sine qua non. Applying this test to the facts of the present case it is difficult for me to hold that the petitioner is really responsible for the offence punishable under Section 304A. I. P.C. On the other hand it is quite possible that the vehicle was moving not at high speed with lights on. The deceased an old man on account of his movements came near the vehicle and got injured leading to his death. I am prepared to extend the benefit of doubt in the facts of the case to the accused. I would accordingly allow the application acquit the petitioner and set aside the punishment of imprisonment and fine. Fine if paid be refunded.