LAXMESHWAR, J. ( 1 ) THIS Revision petition is directed against the judgment and order dated 7-7-1988 passed by the learned Sessions Judge, Mandya, in Criminal Appeal No. 30 of 1987 confirming the conviction with certain alterations in the sentence passed by the munsiff and J. M. F. C. , K. R. Pet, dated 23-6-1987 in C. C. No. 507 of 1985. ( 2 ) THE facts of the case in brief are that K r Pet police charge-sheeted the petitioner accused for an offence under sections 279, 337, 338 and 304a I. P. C. On 30-1-1985 the accused was driving the bus MEF 5694 on mysore-Channarayapatna Road. The bus was coming from Channarayapatna side. A van bearing No. MYN 4756 driven by Abdul basid was coming from K. R. Pet side. The two vehicles came near Gandhinagar of K. R, pet at 11. 45 A. M. There was a collision between the two vehicles which resulted in death of the van driver Syed Abdul Basid and many persons who were travelling in the van sustained grievous and simple injuries. Heavy damages were caused to the van. It is alleged that the accident was due to rash and negligent driving on the part of the petitioner-accused in driving the KSRTC bus. Later police got information about the accident. The Sub-Inspector, according to the prosecution, went to the Hospital where pw-21 was undergoing treatment. He recorded a statement as per Ex. P. 21 and treated it as F. I. R, and registered the case. Then he and his staff visited the spot, spot mahazar was prepared, inquest Mahazar was also prepared, number of witnesses are also examined during the course of investigation and after compelling investigation charge sheet was filed against the petitioner for the offence mentioned above. ( 3 ) THE defence of the accused was that he was not responsible for the accident in question. No specific defence was put at that time by the accused. ( 3 ) THE defence of the accused was that he was not responsible for the accident in question. No specific defence was put at that time by the accused. After the trial the learned Magistrate, after hearing the arguments of both sides convicted the accused for the offence under Section 279 I. P. C. and sentenced him to undergo R. I. for six months; for the offence under Section 337 I. P. C. and sentenced him to undergo R. I. for six months; for the offence under Section 338 i. P. C. and sentenced him to undergo R. I. for one year; and for the offence under Section 304a I. P. C. and sentenced him to undergo r. I. for two years. He further ordered that all the sentences were to run concurrently. ( 4 ) BEING aggrieved by the said judgment and order, the accused filed Criminal Appeal no. 30 of 1987 in the Court of the Sessions judge at Mandya. The learned Sessions judge, after hearing both the parties partly allowed the appeal, i. e. the order of conviction was confirmed, but the sentence was altered as under:- For the offences under sections 279, 337 and 338 I. P. C. the learned sessions Judge, sentenced him to undergo s. I. for three months for each of the offences. For the offence under Section 304a I. P. C. the learned Sessions Judge, sentenced him to suffer S. I. for three months and to pay a fine of Rs. 3,000/- or in default to suffer S. I. for six months. Further the learned Sessions judge, ordered that all the substantive sentences shall run concurrently. It was further ordered by the learned Sessions Judge, that if the fine amount is realised, then the entire amount shall be paid to the wife of the deceased Syed Abdul Basid, dr if she is not available to the children of the deceased and if they are available then to the parents of the deceased. ( 5 ) BEING aggrieved by the said order of conviction and sentence the petitioner filed the above Criminal Revision Petition before this Court. ( 5 ) BEING aggrieved by the said order of conviction and sentence the petitioner filed the above Criminal Revision Petition before this Court. ( 6 ) THE learned Counsel appearing for the petitioner vehemently urged that both the courts below failed to appreciate the evidence of the witnesses in its proper perspective particularly, the learned Counsel submitted, that both the Courts below have ignored the material evidence that has come on record. This has resulted in miscarriage of justice. Therefore, the learned Counselx submits that the jurisdiction of this Court though narrow, in the present circumstances, this Court should reappreciate the evidence particularly considering the evidence that has been left off by both the Courts below. The learned Counsel for the petitioner submitted that both the Courts below have failed to see that the evidence discloses that there were two complaints. First that has come in evidence has been not considered at all because it has been suppressed. It is very necessary that the fact of suppressing the first complaint will result in miscarriage of justice, because the police got ample scope to concoct the entire case against the accused. Besides there is inordinate delay in sending the F. I. R. to the Court. It has come in evidence that the police station and the magistrate's Court are situated at a distance of two furlongs from each other, but the FIR reached the Court at 6. 55 p. m. though it is in evidence that the evidence has taken place at 11. 45 A. M. and it is alleged that the police had information about it at 1 p. m. This inordinate delay ought to have been explained by the prosecution. Failure to explain the inordinate delay that has occurred in the case supports the contention of the defence that the prosecution has not only suppressed the first F. I. R. but also used this time to build the case in their own way. Both the Courts below have failed to take into consideration the circumstances and the facts prevalent at the time of accident, such as there is a 'halla' and a big tree on the left side of the van. After the impact both the vehicles did not move a long distance. Heavy damages are caused to the van only and very negligible damage is caused to the bus on the right side. After the impact both the vehicles did not move a long distance. Heavy damages are caused to the van only and very negligible damage is caused to the bus on the right side. This goes to show that the van must have brushed the bus, which was moving with a reasonable speed. All these facts and the contradictions even though they are glaring have not been considered by both the Courts below. This has resulted in taking a different view against the accused. Even the oral evidence adduced in the case is not consistent with the documents particularly the mahazar. Over all appreciation of the evidence will definitely result in the clear acquittal of the accused. Wherefore, he prays that this Court may be placed to look into the documentary and oral evidence and the omissions may be taken into consideration. This can be done only by reappreciating the evidence on record. ( 7 ) THE learned State Public Prosecutor, as against this, submitted that all aspects have been considered by both the Courts below and they have come to the correct conclusion, though the defence urges that there is inconsistency between the oral evidence and the Mahazar recitals. The recitals in the Mahazar cannot be compared with the oral evidence of the witnesses. The contents of the Mahazar by itself is not evidence. That can be taken into consideration only when the evidence of the witness differs from and is inconsistent with the contents of the mahazar, that could be confronted to the particular witness. ( 8 ) NOW the prosecution witnesses P. Ws. 1, 6, 8, 16 and 21 were treated hostile. Their evidence is rejected in toto by both the courts below. Though the witness PW-21 was treated hostile, his evidence regarding the speed of the vehicle narrated in the examination in chief is relied and believed. According to P. Ws. 2, 3, 4 and 11 they are persons who came to the scene after the incident. Therefore, their evidence regarding the actual accident is not there and it has been rightly not believed for the purpose of proving or disproving the fact of accident. However, their evidence, which is favourable to the defence is not considered by both the courts below. This has prejudiced the case of the accused. Both the Courts below relying on the evidence of P. Ws. However, their evidence, which is favourable to the defence is not considered by both the courts below. This has prejudiced the case of the accused. Both the Courts below relying on the evidence of P. Ws. 5, 7, 10, 15, 17 and 21 convicted the accused ignoring the material evidence, which goes to support the defence and the contradictions in their evidence is also not taken into consideration. PW-7/k. L. Nanjundegowda - in cross-examination says:- He also stated that there was a tree nearby the fallen van. This goes to show that PW-7 has not actually seen the impact. According to him he opened his eyes only after the impact. Therefore, he is not competent to say regarding the impact and also the speed of both the vehicles. Similarly PW-10 Kalam- ma, has stated thus:- She in unequivocal terms has stated that she does not know the meaning of the words 'ajagarukathe' and 'vega'. She also stated that she came to know of the accident only after the vehicle was fallen on the ground. Therefore, what she has stated in the Chief will have no importance. It will not assist the prosecution in proving what was the speed of the vehicle and how the accident took place. But both the courts below have relied upon the evidence of these witnesses, which according to the defence is meaningless. The other witness PW-15 is one Sangamma, who was also travelling in the van. She has stated:- This version is contradicted by other witnesses, stating that the van fell on the right side. She has stated in the cross examination that she cannot now tell on which side of the road the bus was standing; that she has not stated the number of the bus in her statement; that she does not know the meaning of the words 'ajagarukate' and 'vega' and that it is not correct to say that this accident was not as a result of the fault of the driver of the bus. When she has stated that she does not know the meaning of the words 'ajagarukate' and 'ati vega', her opinion that the accident happened due to the negligence of the driver cannot be believed. She has also stated that she does not know how the tempo fell down. ( 9 ) PW-17 Lakshmamma, is another woman who was travelling in the same van. She has also stated that she does not know how the tempo fell down. ( 9 ) PW-17 Lakshmamma, is another woman who was travelling in the same van. This witness contradicts the version given by pw-15, who has stated that the tempo fell on the left side. This witness has stated that it fell on the right side. To a question put to her during her evidence in the Trial Court, she has stated thus:- Therefore, the version of this witness also does not help the prosecution to establish the guilt of the accused beyond all reasonable doubt. PW-21 is the complainant, who in the examination-in-chief has stated that the bus came with little speed. This man is an illiterate, He admits the same in the cross-examination, as under:- Therefore, from the evidence of this witness it cannot be said that the accused was driving the bus rashly or negligently or with both as the learned Sessions has observed. There- fore, the evidence of this witness also does not help the prosecution to establish the guilt of the accused beyond all reasonable doubt as required in the case. ( 10 ) HOWEVER, the learned Counsel Mr. Motaiya, submits that the prosecution has failed to prove that the bus was being driven rashly or negligently by the accused. The evidence that is adduced is of no assistance to the prosecution to establish the same. The learned Counsel for the petitioner also submitted that to hold criminal liability under section 304a of the Indian Penal Code, it is necessary that death should have been the direct cause of the rash and negligent act of the accused and that act must be a proximate cause without the intervention of anothers act, Here the learned Counsel submits both (he vehicles were going opposite to each other. They were on their correct sides. To establish as to who was responsible for the accident, we will have to consider the following factors. According to the learned Counsel appearing for the petitioner, on the left side of the van there was a 'halla' and also a 'tree'. Apart from this, the tempo, which is a very small vehicle, was full and completely packed. The evidence discloses that there were not les: than 30 persons in that small van (both standing and silting ). Therefore, the driver would have been very badly inconvenienced to drive. Apart from this, the tempo, which is a very small vehicle, was full and completely packed. The evidence discloses that there were not les: than 30 persons in that small van (both standing and silting ). Therefore, the driver would have been very badly inconvenienced to drive. It is in evidence that when the van was moved it was driven by his own brother, who was not competent to drive, as disclosed by PW-19. This evidence is also ignored by the courts below. That both the vehicles have not traversed much distance after the impact shows that both the vehicles were going with normal or moderate speed. The circumstance existing at that time, i. e. the 'halla' and 'tree' on the left side of the van might have influenced the driver to take the vehicle a little to the right side. This can be inferred from the circumstances, that damage is caused to the front portion of the van,. whereas only the right side of the bus has sustained little dent. It shows that the van must have turned to the right probably causing some brushing to the vehicle. If the bus was going in a great speed and if it had to dash a smaller vehicle, the smaller vehicle i. e. the van here, would have been thrown back or it had dashed the van on the right side it would have been thrown in the 'halla' itself. But both the vehicles are there only. Therefore no negligence can be attributed to the driver of the bus who was going in a normal speed and no damage is done to the bus except some negligible damages on the right front side of the bus. PW-5 B. K. Anan- tharamarao, whose evidence has been believed by the courts below, himself says that the bus stopped immediately. It shows that the bus was going with reasonable speed. ( 11 ) PW-5 has stated that he cautioned the driver in his driving the van, who seems to be not cautious of his own job. To substantiate this contention Mr. Motaiya learned counsel for the petitioner relied on the decision reported in AIR 1968 SC 829 page 831 - Suleman Rahiman v State of maharashtra. This was also followed in criminal Appeal No. 184 of 1977 decided on 26-9-1977, by this Court. To substantiate this contention Mr. Motaiya learned counsel for the petitioner relied on the decision reported in AIR 1968 SC 829 page 831 - Suleman Rahiman v State of maharashtra. This was also followed in criminal Appeal No. 184 of 1977 decided on 26-9-1977, by this Court. I think the said decision is applicable to the present case on all fours. ( 12 ) PW-20 has stated that they came to know of the accident at 1 O' Clock evening and when they went to the spot it was 2 O'clock. Thereafter he has stated that Here he contradicts what has been stated in his own examination in chief. PW-28 PSI has stated in his examination in chief that he received a phone call from the Police Station, when he was in the post office at shilanere. He was at the Police Station at 1 O'clock. PSI, recorded the statement of one of the injured in the hospital subsequently and treated it as the first information report. That too at about 3 O' Clock. He has stated that he despatched the FIR at about 3 p. m. Thus, there were two complaints to the police station, one before one O'clock before the telephone message was sent to the P. S. I, and one at the time of recording statement in the hospital. I also find here that one Boraiah H. C. is said to have given a phone message to the PSI, who was in the Shilanerc Post Office. He is an important witness. His name does not find place either in the charge sheet or in the additional list submitted by the prosecution. He ought to have been examined. That appears to have been wantonly dropped to suppress the first information report. ( 13 ) FOR the reasons stated supra and for the reasons stated above the omissions of the facts stated above, the prosecution has failed to prove its case as alleged by it. In the circumstances, the judgments and orders of conviction and sentence passed by the courts below are not sustainable in law. In the result, the Criminal Revision Petition is allowed. Both the orders of conviction and sentence passed by the Courts below are set aside. The bail bonds stand cancelled. If fine is paid, it may be refunded to the petitioner. Petition allowed. --- *** --- .