JUDGMENT : B.K. Patra, J. - The Petitioner was convicted under Sections 304-A, 337, 338 and 279, Indian Penal Code in the Court of the Sub-Divisional Magistrate Rayagada and sentenced to rigorous imprisonments for six months, two months, six months and two months respectively under each of the aforesaid four counts, the sentences to run consecutively. 2. The Petitioner is a driver and for 7 to 8 years before the occurrence which took place on 8-4-1965 was driving passenger buses on the Jeypore, Rayagada section. On 8-4-1965, he was driving a passenger bus from Rayagada to Jeypore. There were 47 passengers in the bus by the time it reached a place known as Gumma. Shortly after the bus left Gumma it reached the Ghat section of the road, the upgradient there being 1" ? 18". As the bus reached the top of the gradient, the engine failed to pull up the vehicle. The Petitioner tried to change to load gear but the bus started to roll down backwards. The Petitioner advised the cleaner of the bus to place a stone under the wheel and it was done. Simultaneously the driver also applied brakes but despite all these, the bus rolled down backwards for about 30 yards and fell down into a ditch on its left side. When the bus rolled down backwards one of the passengers jumped down from the vehicle and fell down under it and was crushed to death. Several other passengers also received injuries. As the injured persons were being transported to Rayagada in another vehicle, one of them died on the way. That very evening p.w. 7 the Motor Vehicle Inspector, Koraput inspected the vehicle at the place of accident. He found that engine oil was thrown outside and underneath the vehicle, and that the hand brake was not working and was ineffective. The booster cylinder pipe was found detached from the cylinder. He was of opinion that at the time of accident the driver might have been driving the vehicle in third gear but when the engine could not pull the vehicle in that gear, be attempted to change into higher gear but he could not succeed and in the meantime the engine stopped and the vehicle started rolling backwards. He was of opinion that at the time of accident the driver might have been driving the vehicle in third gear but when the engine could not pull the vehicle in that gear, be attempted to change into higher gear but he could not succeed and in the meantime the engine stopped and the vehicle started rolling backwards. Again when the driver tried to engage the gear, due to backward motion of the vehicle the engine started in reverse direction causing the engine oil to be thrown out of the engine and smoke coming out of the engine. The foot brake which appeared to be in good condition was not effective due to the starting of the engine in reverse direction. He was ultimately of opinion that if the driver had changed into higher gear a little earlier, the vehicle might not have met with such a serious accident. After necessary investigation, the Petitioner was put on trial on the charges mentioned above. 3. The Petitioner pleaded not guilty and stated that at the time when the accident occurred he was driving the vehicle in the first gear. When the engine could not pun, the vehicle, he tried to put it on the load gear but the engine gave a jerk and stopped. He then applied self a starter and tried to put it on the load gear but it did not work. As by that time the bus had started rolling down, he asked the cleaner to put a big stone under the wheel. That was done but the vehicle did not stop and rolled down. 4. The Courts below held that the Petitioner was trying to negotiate the stop climb in the third gear and when the engine could not pull he tried to switch over to the load gear and failed. They thought that the bus being a heavy vehicle loaded with 50 persons, it was the bounden duty of the driver to exercise ordinary prudence and caution and put the vehicle in the load gear so that it could pun up the vehicle. His failure to do so was considered to be a rash and negligent act which resulted in the unfortunate death of two persons and injuries to many others. In this view of the case, they convicted the Petitioner. 5. His failure to do so was considered to be a rash and negligent act which resulted in the unfortunate death of two persons and injuries to many others. In this view of the case, they convicted the Petitioner. 5. That an accident of the nature described above took place at the Ghat section of the Rayagada-Jeypore road on the (sic) of April, 1965 is not disputed. The short question for consideration is whether this unfortunate accident took place due to the rash and negligent act on the part of the Petitioner. The Courts below have inferred rashness and negligence on the part of the Petitioner on the sole ground that he was driving the vehicle up the gradient in the third gear which he should not have done. I do not however find any evidence to support this finding. No witness has deposed that the Petitioner was driving the vehicle in the third gear. The Petitioner himself has denied this allegation and stated that he was driving the vehicle on the first gear, at the time of negotiating the upgradient. It is only the Motor Vehicle Inspector (p.w. 7) who opened in his report (Ex. 4) that the driver might have been driving the vehicle in the third gear to negotiate the upgradient. He, however, admitted in a cross-examination that this opinion is only speculative. We got it from p.w. 5, the Assistant Foreman that the Petitioner is a senior driver having 22 to 25 years of experience in driving and that for 3 or 4 years before this accident he was plying buses regularly in the Jeypore-Rayagada section. He must, therefore, be credited to have been intimately acquainted with the ghat section of the road and it is highly unlikely that he would be so foolhardy as to drive a fully load vehicle over an upgradient in the third gear. It may be true that had he changed to load gear at the foot of the Ghat road, this accident might not have occurred. But nobody does it and it is only when the engine is not able to pull either in the second or in the first gear that one changes to load gear. This is what is usually done and the Petitioner who is an experienced driver must have done this several times. But nobody does it and it is only when the engine is not able to pull either in the second or in the first gear that one changes to load gear. This is what is usually done and the Petitioner who is an experienced driver must have done this several times. There is no evidence in this case that on this particular occasion, the driver was driving the vehicle in the third gear. There is, therefore, no reason to disbelieve the statement made by the Petitioner that be was driving the vehicle in the first gear. When in spite of it, the engine could not pull the vehicle, he attempted to change to load gear and if, for any reason, he failed to do so and the vehicle began to roll backwards, it cannot be said that the accident which unfortunately resulted is due to any rash or negligent act on the part of the Petitioner. It is not the prosecution case that the driver was driving the vehicle rashly; at befit the prosecution case is that he was driving it negligently. Negligence means breach of a duty caused by omission to do something which a reasonable man guided by these considerations which ordinarily regulate conduct of human affairs would do or the doing of something which a prudent and reasonable man would not do. Nothing proved in this case would show that the Petitioner was negligent. A mere speculative opinion of the Motor Vehicle Inspector that the Petitioner might have been driving the vehicle in the third gear at the time of accident cannot certainly form the basis of a prosecution under Sections 279, 337, 338 and 304-A, Indian Penal Code because the basis for a conviction under any of these sections is a rash and negligent act. 6. In the result, I would allow this application, set aside the conviction of the Petitioner under Sections 304-A, 337, 330 and 279, Indian Penal Code and the sentences imposed on him and direct that he be acquitted. He will be discharged from the bail bond executed by him. Final Result : Allowed