ORDER This revision is directed against the Judgment of the Sessions Judge, Arcot at Vellore, confirming the conviction awarded by the Judicial First Class Magistrate, No.1, Vellore, under Secs.304-A (two counts), 337 and Secs.304-A (two counts), 338, Indian Penal Code and the sentences to undergo rigorous imprisoment for six months under each count under Sec.304-A, Indian Penal Code. (The sentences to run concurrently). No separate sentence was awarded under Sec.337, and 338, Indian Penal Code. 2. The brief facts of the prosecution case are as follows: On 10.6.1978 at about 2-15 p.m. the accused who was the driver of the town bus TNF. 5076 was proceeding from Madras to Vellore and at Alamelumangapuram while overtaking a milk van hit against one Raju and a Samiar (an unknown Sanyasi) and they died. The bus also hit against P.Ws.3 and 5 who sustained injuries. The accused thereupon appeared before the Vellore Taluk Police Station and gave the complaint Ex.P12 to the Head Constable. A case was registered. P.W.11 Inspector took up investigation. He Inspected the scene place, prepared the observation mahazar, Ex.P9 and drew the rough sketch Ex.P8. He held inquest over the dead bodies. Exs.P10 and P11 are the inquest reports. P.W.8 Motor vehicles Inspector inspected the vehicle TNF.5076 and certified under Ex.P3 that the accident was not due to any mechanical defect P.Ws.6 and 7 are the medical officers who conducted autopsy on the dead bodies of Raju and the Samiar and issued Exs.P1 and P2, post-mortem certificates respectively. P.W.9 Medical Officer examined P.W.3 and issued Ex.P4 wound certificate. P.W.10 examined one Subramaniam and issued the certificate Ex.P5. P.W.10 also examined one Abdul Kaleen and issued the wound certificate Ex.P6. He also examined one Murugan (not examined) and issued the wound certificate Ex.P7. The Doctors were of the opinion that those injuries could have been caused due to hitting by bus. P.W.11 laid charge-sheet after completing investigation. 3. The plea of the accused is one of denial and no witness was examined on his side. The trial Magistrate for the reasons assigned in his judgment convicted and sentenced the accused as aforesaid. The accused was unsuccessful before the appellate Court. Hence this revision. 4. Learned counsel for the petitioner, Mr.V.Gopinath submitted that in the instant case out of the five eye witnesses P.Ws.1 to 3 were treated as hostile as they did not support the case of the prosecution. The accused was unsuccessful before the appellate Court. Hence this revision. 4. Learned counsel for the petitioner, Mr.V.Gopinath submitted that in the instant case out of the five eye witnesses P.Ws.1 to 3 were treated as hostile as they did not support the case of the prosecution. We have got only the evidence of P.Ws.4 and 5 and their evidence did not establish either rashness or negligence. Both the Courts below convicted the petitioner accused on mere presumption and inferences which are not supported by any acceptable legal evidence. Further their approach is also not proper and against the canons of the criminal jurisprudence. 5. After hearing the arguments of the learned counsel for the petitioner and on going through the materials, I find that P.Ws.1 to 5 are the injured winesses in the case and P.Ws.1 to 3 were treated as hostile. The question that arises for consideration is whether the prosecution has established the guilt of the accused beyond all reasonable doubt with regard to the rashness and negligence on the part of the petitioner. It is the case of the prosecution that on the day of the occurrence, the petitioner accused drove the bus at a great speed, rashly, and dashed against P.Ws.1 to 5 and the deceased due to neglience and as such he is liable for the offences. Now the question to be considered is whether from the evidence of P. Ws.4 and 5 it can be held that the accused drove the vehicle rashly and negligently, P.W.4 has categorically stated that the accused drove the vehicle at a normal speed i.e. at a speed buses are usually driven. He would further state that the milk van which was proceeding ahead of the bus suddenly turned towards the right side. It is only to avert the bus it hit against the victims. He has also fairly conceded that he did not notice prior to the occurrence as to how the bus was coming. P.W.5 did not state anything about the speed of the vehicle driven by the petitioner. It is only to avert the bus it hit against the victims. He has also fairly conceded that he did not notice prior to the occurrence as to how the bus was coming. P.W.5 did not state anything about the speed of the vehicle driven by the petitioner. He would only state that when the petitioner attempted to overtake the milk van proceeding in front of him it hit against him and others and he did not see the driver In cross-examination, he would admit that he did not know whether the driver of the milk van gave side for the petitioner to overtake and he cannot say as to how much speed the milk van was running at and the milk van did not stop. When a specific question was put that in order to avoid a hit against the milk van, the bus driven by the petitioner came to the right side, he pleaded ignorance: but he did not deny the same. He admitted having received compensation in civil Court. Hence his evidence also does not establish either rashness or negligence on the part of the petitioner. 6. But the Courts below proceeded on the assumption that even though the evidence of P.Ws.4 and 5 is not helpful to arrive at a finding regarding rashness and negligence, yet it is seen from the plan prepared by the investigating officer that the width of the tar portion at the scene place is 22 feet and that of the mud portion on either side is 10 feet and even if the milk van did not give side, yet the petitioner was having sufficient space on the right side. Further, since the petitioer did not observe the traffic rules to find out whether there was sufficient place to overtake the milk van he is liable for the offence in substance they applied the principle of res ipso loquitor on the basis of the physical features of the road at the scene place mainly to convict the accused. It is to be noted that except stating that he prepared the observation mahazar and the plan, the investigating officer did not speak about the contents therein or about the location at the scene place. It is to be noted that except stating that he prepared the observation mahazar and the plan, the investigating officer did not speak about the contents therein or about the location at the scene place. Learned counsel for the petitioner, Mr.Gopinath, submitted that the evidence of P.Ws.4 and 5 is that the petitioner drove the vehicle at a normal speed and since the milk van suddenly turned right, the bus also swerved to the right to avoid collision with the milk van. P.Ws.1 to 3 were treated as hostile. P.Ws.4 and 5 were not able to say whether the accused blew the horn and got clearance from the milk van for overtaking. The accused has given the earliest version within half-an-hour of the occurrence. He has clearly stated as to how the occurrence took place. Learned counsel for the petitioner submitted that in view of the above evidence and in view of the conduct of the accused in going to the police station within half an hour of the ocurrence, the petitioner is not liable for any offence and that both the Courts have erred in convicting the petitioner. According to the learned counsel there is no legal provision in regard to the distance to be maintained while overtaking a vehicle, as observed by the Courts below. It is also submitted by the learned counsel that the non-examination of the driver of the milk van and Murugan who is an injured witness is fatal to the case of the prosecution. As already observed, the evidence of P.Ws.4 and 5 did not establish the rashness and negligence on the part of the petitioner so as to warrant a conviction of the petitioner under Secs.304-A, 337 and 338, I.P.C. The conviction is now based only on the physical feature of the road noticed by the investigating officer, namely, the width of the road by the centre place, and the fact that the bus driven by the accused came to the right side at the time the occurrence took place. Further, the version of the accused that a boy suddenly crossed the road has not been substantiated. Further, the version of the accused that a boy suddenly crossed the road has not been substantiated. In this connection, my attention was drawn to the decisions of the Supreme Court and this Court for the proposition that in cases under Sec.304-A, I.P.C, the prosecution is bound to establish the guilt of the acused beyond all reasonable doubt by adducing satisfactory evidence and that the principle of res ipso loquitur could not be invoked for convicting the accused for an offence under Sec.304-A, I.P.C. In Ambalal D.Bhatt v. State of Gujarat Ambalal D.Bhatt v. State of Gujarat 1972 MLJ. (Crl.) 611. Their Lordships of the Supreme Court held: “In a prosecution for an offence under Sec304-A, I.P.C., the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes the death of another does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. The act causing the death ‘must be the causa causans: it is not enough that it may have been the cause sine qua non.” Their Lordships of the Supreme Court affirmed the view in the decision in Sulemon Rehiman Mulani v. State of Maharashtra Sulemon Rehiman Mulani v. State of Maharashtra 1968 MLJ. (Crl.) 556:1968 L.W. (Crl.) 113: A.I.R. 1968 S.C. 829. In that case, the accused who was driving a car only with a learner's licence without a trainer by his side, had injured a person and it was held that by itself was not sufficient to warrant a conviction under Sec.304-A, I.P.C. In Syed Akbar v. State of Karnataka Akbar v. State of Karnataka 1979 Crl.L.J. 1374. Their Lordships of the Supreme Court observed as follows: “The primary reasons for non-application of this abstract doctrine of res ipso loquitur to criminal trials are; Firstly, in a criminal Trial the burden of proving every thing essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of mandatory presumption of negligence against the accused were the accident “tells its own story” of negligence of somebody. No such statutory exception has been made by requiring the drawing of mandatory presumption of negligence against the accused were the accident “tells its own story” of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offences, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgement.” In the above quoted case, while driving a bus at moderate speed, its driver suddenly noticed a four year child attempting to cross the road from left to right. The road was 12 feet wide with deep ditches on both sides. The driver swerved the bus to extreme right to dodge the child but it was hit by the bus and died on the spot. He swerved the bus to extreme right but to the certain limit as there was a deep ditch by the side of the road and if the bus had gone further there was risk of the bus falling in the ditch. It was held; “Held, the facts that the driver tried to dodge the child indicated that the accident happened due to an error of judgment and not negligence or want of driving skill”. I had an occasion earlier to consider the above decision, Innasimuthu IN RE. Innasimuthu IN RE. 1984 L.W. (Crl.) 69, petitioner. I have held. “There could be no general presumption that a person should have driven a motor vehicle in a rash and negligent manner merely because there was an accident, and whether a person is guilty of rash and negligent driving or not, is a question of fact, and Sec.304-A, I.P.C., is no exception to the criminal jurisprudence. I have held. “There could be no general presumption that a person should have driven a motor vehicle in a rash and negligent manner merely because there was an accident, and whether a person is guilty of rash and negligent driving or not, is a question of fact, and Sec.304-A, I.P.C., is no exception to the criminal jurisprudence. There is no evidence in the present case to show that it was the rash or the negligent driving of the petitioner that caused the death of the deceased and the Courts below have not approached the case with a clear understanding.” Learned Counsel for the petitioner drew my attention to the decision reported in Natarajan IN RE. Natarajan IN RE. (1966)1 MLJ. 328: A.I.R. 1966 Mad. 357, where Ananthanarayanan, J. (as he then was) held: “Surely whether a man is guilty of rash and negligent driving or not, is question of fact depending on the totality of the circumstances in the individual case. There could be no general presumption that the fact that a car leaves a road, is evidence of rash and negligent driving. A motor vehicle may leave the road, and proceed on the margin or collide against some fixed structure of the margin, under a variety of circumstances. Some of those circumstances, certainly may probabilise rash and negligent driving, but many other circumstance may not. There can be no burden on the acused to prove that he was not driving the vehicle in a rash and negligent manner, merely because the prosecution proves the fact that the car left the road.” Ultimately, the revision in that case was allowed and it was held on the facts of that case that it was not established that the revision petitioner was guilty of rash and negligent driving. Applying the ratio laid down in the above decisions to the facts of this case, the evidence of the two witnesses, P.Ws.4 and 5 whose evidence was relied on by the prosecution, did not establish rash and negligent driving by the petitioner. But the Courts below mainly relied on the fact that the car came to the right side while his side was on the left. The width of the road is about 42 feet in the scene place, including 22 feet tar portion in the middle and 10 feet mud road on either side. But the Courts below mainly relied on the fact that the car came to the right side while his side was on the left. The width of the road is about 42 feet in the scene place, including 22 feet tar portion in the middle and 10 feet mud road on either side. But, both the Courts below failed to give due credence to the admitted fact that the milk van was proceeding in front of the bus driven by the petitioner that the petitioner was driving the vehicle at a normal speed, that the milk van gave side and that when he attempted to overtake the said vehicle, the said occurrence took place. Both the Courts below have mainly relied on the location of the scene and the physical features noted by the investigating officer and came to the conclusion that the accused is liable for the offences. It is to be noted that the accused is entitled to take any inconsistent plea. But the mere fact that there is no acceptable evidence to prove that the boy crossed the road at the time of the occurrence as alleged by the accused, is not a ground to convict the accused. The question for consideration is whether there is any acceptable evidence to prove the culpable rashness and negligence on the part of the petitioner at the time of the occurrence which -are the main ingredients under Sec.304-A, I.P.C. In the instant case these ingredients were not established by acceptable evidence beyond all reasonable doubt. On a consideration of the totality of the circumstances, I am of the view that there is no evidence in the present case to show that there was rash and negligent driving of the petitioner and the same caused the death of the deceased and injuries to some persons. Both the Courts below have not approached the case on a clear understanding of the principles enunciated by this Court and the Supreme Court and that miscarriage of justice has resulted on account of the same and as such the interest of justice requires interference in this revision. 7. In the result, the revision is allowed, the conviction and sentence imposed on the revision petitioner are set aside and he is acquitted. His bail bond stands cancelled. B.S. ----- Petition allowed.