JUDGMENT : Bhargava, J. 1. The appellant was the driver of State bus No. WBS 1735 running on Route No. 14 in Calcutta. On 5th March, 1964, at about 2.00 P.M., as he was driving the bus upon Upper Circular Road and came to the junction of that road with Raja Ram Mohan Roy Road, an accident occurred as a result of which one Gopinath Dey fell down injured at the southwest corner of the junction of the two roads. The appellant proceeded to the Police Station and reported this incident. Gopinath Dey died in the Hospital at 5.00 A.M. on 6th March, 1964. The appellant was, thereupon, charged with an offence of causing death of Gopinath Dey by rash and negligent act punishable under section 304A of the Indian Penal Code. He was tried by the Presidency Magistrate, convicted and sentenced to two years' rigorous imprisonment and a fine of Rs. 1 000/-. He appealed to the High Court of Calcutta, but his appeal was summarily dismissed. He has now come up in this appeal to this Court by special leave. 2. It is a little unfortunate that, in this case, the High Court dismissed the appeal summarily and did not exmine the record to see whether the judgment of the Presidency Magistrate was correct. On behalf of the appellant, our attention was drawn to the fact that the Presidency Magistrate, in trying the case, did not even examine the appellant under section 342 of the Code of Criminal Procedure and merely recorded the appellant's plea of not guilty under section 362, Criminal Procedure Code. There was, thus, a very clear error of law committed by the Presidency Magistrate. 3. Apart from this circumstance, the judgment of the Presidency Magistrate itself shows that he based his decision on evidence of three witnesses, two of whom were actually declared hostile while the third did not depose that he saw the impact at the time of the accident as a result of which Gopinath Dey died. The first witness examined on behalf of the prosecution was P.W. 2, Hare Krishna Sur, who was the conductor at the front gate of the bus. The first witness examined on behalf of the prosecution was P.W. 2, Hare Krishna Sur, who was the conductor at the front gate of the bus. It appears that, in his statement to the Police, this witness had stated that a pedestrian was knocked down by the bus, while when he was examined in Court, all he stated was that, near the crossing of Raja Ram Mohan Roy Road and Upper Circular Road, the bus was suddenly stopped by sudden application of brakes and just at that time he saw a man lying on the left-hand side of the bus on the road, adding that he did not see how or why the man fell down. Consequently, the prosecution declared him hostile and crossexamined him, making the suggestion that he tried to suppreses the fact that a pedestrian was knocked down by the bus, due to friendship and fellowfeeling with the appellant. Similarly, P.W. 3, Narain Chandra Dutta, was the second conductor posted at the rear gate of the bus and he also, in his statement in Court, did not state that the bus knocked down a pedestrian, while he had said so before the investigating Officer : and, consequently, he was also declared hostile. However, the judgment of the Presidency Magistrate shows that, in spite of these witnesses being declared hostile, the Magistrate proceeded to rely on their evidence in order to convict the appellant. That became necessary because, apart from the evidence of these two witnesses, there was no other material on the record to prove that it was this very appellant who was driving the butt at the time of the accident. 4. The only other piece of evidence available on this point was the record of the information given by the appellant himself at the police station which, of course, could not be substantive evidence in the case forming the basis of the conviction of the appellant. In fact, the judgment of the Magistrate shows that he relied on the evidence of these two witnesses even on other points relating to the manner in which the accident took place, because the only other prosecution witness, P.W. 10, Prafulla Kumar Dey, clearly admitted that he did not see the actual impact. In fact, the judgment of the Magistrate shows that he relied on the evidence of these two witnesses even on other points relating to the manner in which the accident took place, because the only other prosecution witness, P.W. 10, Prafulla Kumar Dey, clearly admitted that he did not see the actual impact. According to him, the bus passed him at a high speed, while he was in the middle of the Upper Circular Road, and, when he looked back, he found the man Gopinath Dey injured while the bus was still continuing to proceed forward. If his evidence is taken by itself, it does not even lead to the conclusion that Gopinath Dey was involved in any accident with the bus, so that it was necessary to resort to the evidence of the other two prosecution witnesses even for drawing the inference that Gopinath Dey was injured as a result of an impact with the bus. In these circumstances, it has been contended before us by learned counsel for the appellant that the evidence given by P.Ws. 2 and 3, Hare Krishna Sur and Narain Chandra Dutta, should be read as a whole, and their evidence would show that there was no rashness or negligence on the part of the appellant. According to Hare Krishna Sur, the sudden application of the brakes took place when the bus was at a distance of 15 to 20 feet to the north of the bus stop. In his cross-examination, he stated that he rang the bell to stop the bus when the bus came at the crossing and, at that time, the bus stop was 10 to 20 feet ahead. This means that, according to him, the brakes must have been applied almost as soon as he rang the bell while the bus was still at the crossing. After the accident, according to his evidence as well as that of P.W. 10 Prafulla Kumar Dey, Gopinath Dey fell injured at the south-west corner at that crossing which means that the place where he fell would be reached by the bits after passing the crossing. The inference thus follows that Gopinath Dey was knocked down after the brakes had been applied. The inference thus follows that Gopinath Dey was knocked down after the brakes had been applied. According to Hare Krishna Sur, the man was lying at a distance of 7 to 8 feet west of the edge of the eastern pavement of Upper Circular Road, while, according to Narain Chandra Dutta, he was lying at a distance of 2 to 3 feet from that pavement. Prafulla Kumar Dey does not give the position of the injured man at all, except by saying that he was lying on the left-hand side of the bus and the road and was at the south-west corner of Raja Ram Mohan Roy Road. None of the witnesses states where the bus stopped, even though, according to both Hare Krishna Sur and Narain Chandra Dutta, brakes were suddenly applied to stop the bus. No evidence at all has been given to indicate what was the distance that the bus actually travelled after Gopinath Dey was knocked down. It is also clear from the evidence of these witnesses and the medical evidence of the injuries received by Gopinath Dey that the injured person was not struck by the front of the bus, because he did not fall under the bus at all. He must have been struck on one side. All the injuries received are on the left part of the body of Gopinath Dey. It seems that this accident must have taken place because, while the bus was coming from the north and running to south along the Upper Circular Road, Gopinath Dey tried to cross that road from east to west. In trying to cross the road, he did not take care to see whether any vehicular traffic was coming along the road, so that he dashed into the bus. The suggestion is that, in the middle of Upper Circular Road, runs the tram lines and Gopinath Dey was trying to cross the road from the pavement to get to the tram lines. No attempt has been made to give any evidence at all to show in what manner and how Gopinath Dey stepped down from the pavement and what part of the bus struck him. No attempt has been made to give any evidence at all to show in what manner and how Gopinath Dey stepped down from the pavement and what part of the bus struck him. In these circumstances, and on the evidence available, it appears to us that there was no justification for the Presidency Magistrate to come to a finding that the driver was driving very fast and was negligent in not applying the brakes in order to avert the accident. Prafulla Kumar Dey, no doubt, in Court stated that the appellant's bus was coming at high speed; but this statement appears to be an improvement on his earlier evidence given during investigation when he did not mention to the Investigating Officer that the bus was running at high speed. Further, no attempt was made to find out what this witness understood by high speed. To one man a speed of even 10 or 20 miles per hour may appear to be high, while to another even a speed of 25 or 30 miles per hour may appear to be reasonable speed. On the evidence in this case, therefore, it could not be held that the appellant was driving the bus at a speed which would justify holding that he was driving the bus rashly and negligently. The evidence of the two conductors indicates that he tried to stop the bus by applying the brakes; yet, Gopinath Dey Has struck by the bus, though not from the front side of the bus as he did not fall in front of the bus but fell sideways near the corner of the two roads. It is quite possible that he carelessly tried to run across the road, dashed into the bus and was thrown back by the moving bus, with the result that he received the injuries that resulted in his death. 5. We have indicated above that, in this case, the prosecution has left immense gaps in the evidence. No attempt seems to have been made to get hold of witnesses who might have seen the actual impact between Gopinath Dey and the bus. The road was in a busy quarter where there must have been a large number of persons and, yet, the prosecution contented themselves by relying on the evidence of one single witness Prafulla Kumar Dey apart from the two conductors of the bus. The road was in a busy quarter where there must have been a large number of persons and, yet, the prosecution contented themselves by relying on the evidence of one single witness Prafulla Kumar Dey apart from the two conductors of the bus. No attempt was made even to bring to the notice of the Court the position of the injured man in relation to the bus after it stopped on brakes being applied. The Investigating Officer, no doubt, purported to produce a site plan, but the type of site plan drawn is completely useless. It only shows the roads and the tram tracks. In the evidence there was mention of the bus-stop. Even the location of that bus stop is not sought to be indicated in the plan. No attempt was made to show in the plan where Gopinath Dey fell, nor was the spot shown where the bus came to a halt. It is very clear that the investigation by the police in this case was most unsatisfactory. In fact, a suspicion arises that the police tried to favour the appellant who was a driver of a State Transport bus. The investigation was made by a Police Officer who was attached to the Fatal Squad, and the unsatisfactory manner in which the case has been brought before the Court appears to show that the Investigating Officer did not desire that the full detailed facts should come before the Court. The facts that were put forward were hopelessly inadequate to establish that the death of Gopinath Dey was the result of an accident caused by any rash or negligent act of the appellant. 6. The appeal is allowed and the conviction and sentence of the appellant are set aside and he is acquitted of the charge under section 304A, Indian Penal Code. Appeal allowed.