JUDGMENT - BAL, J.:---This appeal is by the accused who is a B.E.S.T. bus driver. He was tried by the Presidency Magistrate, 5th Court, Dadar, Bombay for alleged offences, under sections 304-A, 338 and 279 of the Indian Penal Code and was convicted of those offences. The facts leading to the prosecution may be briefly stated as follows :--- On 14-12-1965 at about 10.45 a.m. B.E.S.T. Bus No. BMO-37 which was being driven by the accused was proceeding from Kings Circle to Worli along Cadell Road. At the junction of Cadell Road at Prabhadevi Road it mounted the eastern footpath, dashed against a telephone pole which was uprooted, knocked down a cyclist named Poshanna Rajanna and another pedestrian Raman Shivram Mhatre. The bus also knocked down three other persons, viz. Narhari Shenoy, a medical student, and two school going children, viz. Sadashiv Sakharam and Janki. Poshanna died on the spot while Raman Mhatre died in the hospital on the same day. Narhari Shenoy received grievous injuries which disabled him for life. The injuries to the other children were not serious. P.S.I. rule, who happened to be proceeding along the same road, saw the traffic jam caused by the accident and telephoned to the Dadar Police Station about it. He later filed his first information report in pursuance of which offence were registered against the accused and investigation was stated by S.G.S.I. Phansalkar. After completing the investigation the accused was charge sheeted before the Learned Magistrate. The accused admitted that he was driving the bus at the time of the accident, that the bus mounted the eastern footpath and knocked down the telephone pole. He also admitted Poshanna and Raman were knocked down and died while the other three persons were injured. His defence, however, was that when he approached the junction of the Cadell Road and Prabhadevi Road there were two cars ahead of him which had come to a halt ahead of him. Seeing them he applied foot brakes but they failed to operate. He then tried to apply hand brakes and stop the bus but the bus did not stop. As he saw some children crossing the road he swerved his bus to the left to stop but it dashed against the pole. Seeing them he applied foot brakes but they failed to operate. He then tried to apply hand brakes and stop the bus but the bus did not stop. As he saw some children crossing the road he swerved his bus to the left to stop but it dashed against the pole. According to him he was going at a speed of only 7 or 8 miles per hour and was not driving the bus either rashly or negligently. The accident was due to solely of mechanical failure. At the trial prosecution examined Shankar Bandu Patil (P.W. 1) who was travelling in the bus; Traffic Constable Namdeo Tukaram (P.W. 4) who was on duty at the junction of Prabhadevi Road and Cadell Road at the time of accident; Shivnarayan Sukhdeo (P.W. 8) who was standing near a pan shop abutting on the road, Rajaram Dattaram (P.W. 3), the Head Master of a class who was crossing the road from West to East along with some children including the two who were injured and Shalinibai (P.W. 5), who was serving as a peon in the same class and was following the Head Master and the children. These were supposed to be the eye witnesses to the incident. The prosecution also examined Sitaram Tukaram Jawle a motor Vehicle Inspector who had inspected the vehicle the next day. The rest of the evidence was more or less formal. Accepting the prosecution evidence the learned Magistrate held the accused guilty of all the offences with which he was charged and convicted him. For the offence under section 304-A, he sentenced the accused to suffer rigorous imprisonment for 18 months and to pay a fine of Rs. 2000/- in default to suffer further rigorous imprisonment for six months; for the offences under section 338, the learned Magistrate sentenced the accused to suffer rigorous imprisonment for six months and to pay a fine of Rs. 300/- in default to suffer rigorous imprisonment for two months and for the offence under section 337, the learned Magistrate sentenced the accused to suffer rigorous imprisonment for six months and to pay a fine of Rs. 200/- in default to suffer rigorous imprisonment for two months. No separate sentence was awarded for the offence under section 279 of the Indian Penal Code. 200/- in default to suffer rigorous imprisonment for two months. No separate sentence was awarded for the offence under section 279 of the Indian Penal Code. Although five witnesses were examined by the prosecution as eye witnesses to the incident none of them could depose to the manner in which the incident took place. Shankar Patil (P.W. 1), stated that he was sitting in the middle of the bus near the window. The accused was driving the bus at a normal speed, which according to him was about 5 to 6 miles per hour. He stated that the bus dashed against the telephone pole on the left and stopped. It appears from his evidence that he became aware of the incident only after it had taken place and described what he saw thereafter including the injured persons and the uprooting of the telephone pole. His estimate about the speed of the bus may not be correct but there is nothing in his evidence which would be helpful to the prosecution. Constable Namdeo Tukaram (P.W. 4) who was on traffic duty at the time of the incident stated in his examination-in-chief that the bus came fast and the driver did not blow the horn but in cross-examination he had to admit that he first saw the bus when it was on the foot path. That means that he had not seen the manner in which the accident took place and his evidence also is, therefore, of no help to the prosecution. It may be mentioned here that the accused admits that he did not blow the horn but, according to him, that was because his hand was engaged in operating the hand brake. Rajaram Dattaram (P.W. 3) is the Head Master of a coaching class. Just before the incident he was crossing Prabhadevi Road from West to East. He had 30 children of his class along with him. The Police Constable had stopped the traffic for the children to cross. Shalinibai, the peon, was also accompanying him. His evidence shows that the incident took place after he had crossed the road alongwith the children and the traffic constable had signaled to the Cadell Road to proceed. He had 30 children of his class along with him. The Police Constable had stopped the traffic for the children to cross. Shalinibai, the peon, was also accompanying him. His evidence shows that the incident took place after he had crossed the road alongwith the children and the traffic constable had signaled to the Cadell Road to proceed. In his examination-in-chief he stated that the bus came fast and dashed against the telephone pole but admitted in cross-examination that he saw the bus when it had mounted the footpath and when he heard the noise. He further admitted that when he looked at the bus it had stopped. He was therefore, not an eye witness to the incident in the real sense. Shalinibai (P.W. 5) also purports to say in the examination-in-chief that the bus came fast and dashed against the telephone pole and admitted in cross-examination that she saw the bus when it dashed against the pole and did not see it mounting the foot path. The evidence of this witness again cannot be of any help to the prosecution to prove that the accused was driving the bus at a fast speed. Shivnarayan Sukhdev ( P.W. 8) showed an inclination to help the accused and stated that he saw the bus going at 5 or 6 miles per hour. He was allowed to be cross-examined by the prosecution and admitted in cross-examination that his brother was a conductor in the B.E.S.T. That was perhaps the reason why he was inclined to favour the defence. The learned Magistrate disbelieved him and in my view rightly, but disbelieving him would not prove the fact were contrary to what he stated. That had to be seen from such evidence as the prosecution has adduced and as already pointed out none of the witnesses examined as eye witnesses was in a position to say anything which would lead to the conclusion that the accused was driving the bus rashly or negligently. The most important evidence in the case is that of the Motor Vehicle Inspector Sitaram Jawla (P.W. 13). He had tried to inspect the vehicle in the evening of the day of the accidence while it was laying on the spot, but could not inspect it then on account of darkness. The most important evidence in the case is that of the Motor Vehicle Inspector Sitaram Jawla (P.W. 13). He had tried to inspect the vehicle in the evening of the day of the accidence while it was laying on the spot, but could not inspect it then on account of darkness. He, therefore, inspected it at the Dadar Police Station next morning and found that the brake pipe was dislocated from Chamber. The report drawn up by him is at Ex. 44 and it shown that in his opinion the accident was due to mechanical defect in the vehicle. In his evidence before the Court he stated that the vehicle was defective and accident was caused by the defect. The braker pipe was not damaged due to impact of the accident but the defect had occurred before the accident. In cross-examination he further stated that it was not possible to drive the bus with defect which he observed. It was not possible with that defect to halt the vehicle by application of brakes. The defect according to him had occurred between the last application of breaks and the accident. To a Court question he replied that the defect observed was not possible by volent impact. His evidence thus fully supports the defence of the accused. In his report Ex. U, he had stated "hand brakes in order." A question at the hearing of this appeal whether the accused could have averted the accident by application of hand break. Mr. Naik, learned Counsel of the occused argued that it could not be and it was the prosecution case that the bus could not have been so stopped, it was for the prosecution to get the matter cleared by putting questions to the Motor Vehicles Inspector in examination-in-chief. Is the learned Magistrate had place great reliance on this factor, at the request of Mr. Naik, I gave the accused an opportunity to cross-examine the Motor Vehicle Inspector further in this Court and he was accordingly examined before me today in the presence of the accused. Statement of the accused was also thereafter recorded. In this cross-examination the witness stated that with the defects he had observed in the foot brakes it was not possible for the driver to stop the bus on the spot by the application of the hand brakes. Statement of the accused was also thereafter recorded. In this cross-examination the witness stated that with the defects he had observed in the foot brakes it was not possible for the driver to stop the bus on the spot by the application of the hand brakes. A suggestion made to him that the hand brake was used merely for parking purposes, he replied that it was not so and that it used also for stopping the bus. He, however, admitted that if the bus was going at a speed of 7 to 8 miles per hour it would be stopped by the application of hand brakes within a distance of about 40 feet on plain road it there was no obstacle. As already there is no evidence in this case about the speed at which the bus was being driven at the relevant time. It may be that the case of the accused that he was driving at about 8 to 10 miles per hour may not be true but then there is not positive evidence to show at what speed he was driving. It is true that a bus could be stopped by the application of hand brakes but it would certainly take at least a few seconds for the driver to realise that the foot brakes had failed and to apply the hand brake. During these few second the bus would naturally cover a considerable distance. A B.E.S.T. Bus is a heavy vehicle and even at moderate speed it would have a large momentum. It would, therefore, be unsafe to draw an inference about he speed from the damage caused. The panchnama which is at Ex. J gives to details about the distance which the bus travelled after the application of the hand brakes. It, however, appears that it had not travelled much because the pole which it struck down was found under it. In view of the evidence and the circumstances discussed above it would not be possible to hold that the accused was driving the bus rashly or negligently much less dangerously. The result is that the appeal is allowed, the impugned order of the learned Magistrate is quashed and set aside and the accused is acquitted of all the offences with which he was charged. The fine, if paid, shall be refunded and the bail bond of the accused shall stand cancelled. The result is that the appeal is allowed, the impugned order of the learned Magistrate is quashed and set aside and the accused is acquitted of all the offences with which he was charged. The fine, if paid, shall be refunded and the bail bond of the accused shall stand cancelled. At the time of admission of this appeal a notice to show cause why the sentence should not be enhanced was issued to the accused and that is the Review Application. As the accused is now acquitted the review application does not survive and the rule there is discharged. -----