JUDGMENT : Misra, J. - The Petitioner was convicted under Sections 304-A, 279 and 337, Indian Penal Code and sentenced to R.I. for 6 months under Sections 304-A. No separate sentence was passed under Sections 279 and 337 Indian Penal Code. 2. The Petitioner was the driver of a passenger Bus (ORB 930). On 16-2-1962 the bus was destined for Baliapal from Balasore town. At about 6-15 p.m. it started from Balasore. While proceeding through Nayabazar area of Balasore town towards Ararbazar, there was an accident near railway level crossing. There is a sharp bend on the road at that point. While, negotiating the sharp turn the bus went to the right and dashed against two out of three boys who were coming from opposite direction keeping to the extreme left hand side close to the iron railing which was to their left. The bus struck the belly of one of the boys Sher Abdin. The boy next to him was Ahmad Islam (p.w.5) who slipped through the iron railing and was unhurt. The boy who was coming last was Niranjan Sahu (p.w.10) who sustained an injury on his leg as a result of the dash. Sher Abdin was removed to the hospital where he died. The Petitioner pleaded not guilty. His plea was that the bus was not being driven either rashly or negligently but was going slowly and the horn was being blown. The road the place of occurrence is narrow. The flat post of the bus was loose which was hanging towards its right side which he did not notice before he left the place of departure and that the flag post struck the belly of the boy and ripped it. On the left side of the bend there is a tamarind tree and on the right the iron railing. The lights of the bus were on and he could not see the boys who had gone from the right hand side to the left hand side near about the railway line. 2. The learned Courts below rejected the defence version and held that the driver was driving the bus rashly and negligently and by such act caused the death of the deceased boy. 3. Before the learned Sessions Judge, the defence abondoned the plea that the deceased and the other boys were going on the right side and suddenly turned to the left. 3. Before the learned Sessions Judge, the defence abondoned the plea that the deceased and the other boys were going on the right side and suddenly turned to the left. The findings of the learned Sessions Judge are as follows: (i) The boys were coming towards Nayabazar keeping to their extreme left close to the iron railing on their left and were observing the rule of the road properly. (ii) The right hand side flag post was loose from the very start leaning towards right. (iii) The level crossing was just in the busy part of the town and that the road at the spot has a sharp bend. (iv) The bus was a big and heavy one and that demanded very cautious driving. (v) As the boys were on the extreme left of the road coming from the opposite direction and the lights were on, any cautious could see the boys and should have applied the brake immediately to avoid the dash. The accused, however, did not apply the brake until the boys were dashed. (vi) The horn of the bus was not being blown. (vii) The existence of the tamarind tree to the left of the bend was well known to the driver and could have put him on caution while driving the bus. 4. As to what should be the test of negligent and rash driving, Mr. Mohanty placed reliance on Hemmarayan v. State AIR 1934 Nag 65. It was laid down there that the accident would have been avoided by the accused if he exercised care and diligence which ordinarily cautious persons using road in similar circumstances would have done. With respect I am in agreement with the aforesaid test. 5. Applying I his test to the findings enumerated above, it is clear that the Petitioner could have avoided the accident if proper caution had been taken. At the place of accident, the road is a narrow one with a sharp bend and a tamarind tree on the left and iron railing on the right. The Petitioner was plying a heavy bus. It was just near Nayabazar which is a busy area. The mere fact that the bus was not being driven with a high speed is no evidence of the fact that the driving was cautious. The quantum of caution would vary according to the facts and circumstances of each case. The Petitioner was plying a heavy bus. It was just near Nayabazar which is a busy area. The mere fact that the bus was not being driven with a high speed is no evidence of the fact that the driving was cautious. The quantum of caution would vary according to the facts and circumstances of each case. On the findings conclusion is irresistible that the driving was rash and negligent and with due caution the accident could have easily been avoided when the boys observed the rule of the road punctiliously and were to the extreme left from the opposite direction. 6. I find no merit in this revision which is accordingly dismissed. Final Result : Dismissed