JUDGMENT :- This is an appeal filed by the State against the acquittal of the accused of offences under Sections 279, 304-A, 337 and 338 of the Indian Penal Code in respect of the alleged rash and negligent driving of a State Transport vehicle by the accused at about 4.30 p.m. on the 22nd of June 1972. The prosecution case is, that the said bus was proceeding from west to east, and in the course of its journey, it had to cross a narrow bridge which, according to the evidence in this case, was only 20'-10" in width. What happened was that as soon as the bus entered the bridge, the driver some how lost control, and the bus fell over the bridge on the right side into the river bed. The unfortunate result of this occurrence was, that three persons died and a large number of passengers in that bus were injured, some of them seriously. The accused was, in due course, charged with offences under Sections 279, 304-A, 337 and 338 of the Indian Penal Code, but was acquitted by Mr. A.S. Bhate, Judicial Magistrate, First Class, Vaijapur, by his judgment dated 19th May 1973. It is from that order of acquittal that the State has preferred the present appeal. 2. I have been taken almost entirely through the evidence in this case which consists of a large number of witnesses, but it is unnecessary for me to discuss that evidence in detail beyond stating that witnesses Sonaji GavanaJi, Tulshidas Digambarrao, Narayan Barkar and Parbat Sheepat have deposed to the bus being driven by the accused at the material time at considerable speed. From none of these witnesses has their notion of speed been, however, elicited. As laid down by the Supreme Court in an unreported judgment which I have followed in my decision in the case of Tukaram Sitaram v. State, 72 Bom LR 492 = (1971 Cri LJ 767), the use of an expression like "high speed" is not enough to prove rashness or negligence, unless evidence is further elicited from the witness who used that expression as to what his notion of speed was. As against the evidence of these witnesses on the point of speed, there is the evidence of the bus conductor Mohamed Omer that the speed of the bus at the time when it was on the bridge was only about 25 to 30 miles per hour, and the evidence of witness Dwarkadas Raghunath is that the bus was, at that time, being driven at normal speed, but my assessment of the evidence of both these witnesses on the whole is that they are partisan witnesses who had come to depose in favour of the accused, and I, therefore, do not attach any importance to their evidence. Even so, as laid down by me in Tukaram Sitaram's case cited above (at page 494), there can be no presumption of negligence from the mere fact that somebody is killed, and that there must be evidence of rashness or negligence acceptable to the Court. I have further observed in the said case that the death of a pedestrian in running-down cases may very well be purely accidental, or may be due to his own negligence, and to presume that because a person has been killed, the driver of the vehicle must be guilty overlooks these two possibilities. To these two possibilities mentioned by me in my judgment in Tukaram's case, I would add a third possibility to which my mind is directed in view of the facts of the present case, and that is, that there may be what may be called a pure error of judgment on the part of the driver of the vehicle which neither amounts to negligence or rashness, nor can it lead to an inference that the occurrence of the incident was accidental. 3. What I must, therefore, determine is, whether the learned trial Magistrate was right in coming to the conclusion that the prosecution has not proved rashness or negligence on the part of the accused in the present case in driving the S.T. bus in question. Going through the entire evidence in this case, I have been unable to find a single positive statement which could possibly lead the Court to the conclusion that the accused was driving the vehicle in a rash or negligent mariner at the time of the incident. Going through the entire evidence in this case, I have been unable to find a single positive statement which could possibly lead the Court to the conclusion that the accused was driving the vehicle in a rash or negligent mariner at the time of the incident. I have already made my observations in regard to the statements made by some of the witnesses in regard to speed, and I need not repeat the same. I agree with the view taken by the learned trial Magistrate that the evidence led by the prosecution in regard to the question as to whether it was the tyre of the left wheel or the right front wheel that had burst is discrepant, and that the benefit of that material discrepancy must go to the accused. Some comment was sought to be made by Mr. Solkar on behalf of the State in regard to the force of the impact, from which he wanted me to draw the inference that the bus was being driven at a very high speed. In that connection, he relied on the fact that 11 guard stones were shown to have been dislodged by the impact of the bus, but, I am afraid, I am not prepared to draw any such inference, for the simple reason that the force of the impact, or what in technical language may be called the momentum, is made up of mass into velocity. Having regard to the enormous size of an S.T. bus, even if it was proceeding at a fairly slow speed the momentum of its impact with the guard stones would be very appreciable, and the guard stones in question would certainly be dislodged. I am, therefore, not prepared to draw any inference of speed from the mere fact that 11 guard stones were dislodged. The bridge in question was only 20'-10" wide, as the panchanama (Ex.22) shows. Having regard to the width of a State Transport bus, the possibility of a pure error of judgment on the part of the accused in judging the space either on the left side or the right side, as he entered the bridge, cannot be ruled out. The bridge in question was only 20'-10" wide, as the panchanama (Ex.22) shows. Having regard to the width of a State Transport bus, the possibility of a pure error of judgment on the part of the accused in judging the space either on the left side or the right side, as he entered the bridge, cannot be ruled out. If misjudged the space on the left side, and in so doing went a little too far on the right side, once the wheels of the bus struck one guard stone after another on the right side, he would certainly lose control of the bus, particularly if at that time one of the tyres of the bus had burst, as the evidence unmistakably shows. In the absence of any positive evidence of rashness or negligence in the present case, this possibility cannot, therefore, be ruled out altogether. In the result, both on the grounds stated by the learned trial Magistrate, as well as on the ground that the evidence in the present case fails to make out any rashness or negligence on the part of the accused, and, in any event, does not rule out the possibility of a pure error of judgment on his part which cannot amount to rashness or negligence, the conclusion arrived at by the trial Magistrate is correct. This appeal must, therefore, be dismissed and the order of acquittal confirmed. Bail bonds cancelled. Appeal dismissed.