JUDGMENT 1. - The accused petitioner was convicted by the learned Judicial Magistrate No. 1, Jaipur District, Jaipur, under his judgment dated 22nd May, 1986 under Section 304A I.P.C. and was sentenced to undergo one year's rigorous imprisonment. The accused-petitioner preferred an appeal before the learned Sessions Judge and the learned Sessions Judge under his judgment dated 9th May, 1988 partly allowed the appeal and while maintaining the conviction of the accused petitioner for the aforesaid offence, reduced the sentence of the accused-petitioner and the accused-petitioner was sentenced to undergo three months' simple imprisonment. 2. Bhagwn Shay PW 11 along with deceased, Sushila sister-in-law and other on 8th August 1978 were going to Ramgarh for a picnic. While deceased persons Ram Babu and Vishnu were going on scooter No. RRG 4409 others including Bhagwan Sahai PW 11 were going in a bus No. RSM 4130 from Jaipur to Jamua Ramgarh. The accused- petitioner was the driver of the said bus at the relevant time, while Rm Banu deceased was driving the scooter and Vishnu was sitting on the pillion seat. Near Lal Mahal it is alleged that the scooter which was till then travelling behind the bus suddenly overtook the bus. Thereafter, when the scooter was ahead to the bus, an accident took place and both the deceased persons died on the spot and the accused petitioner who was the driver of the bus ran away. Bhagwan Sahai PW 11 lodged a report in the police station and on the report Ex. P.9 a case was registered and investigation was set in motion. There was mechanical examination of the bus by Roop Chand and though he has not been examined but his report Ex. P.7 is on record. After investigation a charge sheet was filed under Section 304A I.P.C against the accused petitioner and after closing the prosecution evidence as many as 12 witnesses were examined. 3. The accused petitioner was examined under Section 313 Cr.P.C. He did not deny that he was driving the bus at the relevant time. But his plea was that the accident was not as a result of rash and negligent driving by him. When the bus reached Lal Mahalm, the scooter, which was till then following the bus, tried to over take the bus by the wrong side. But his plea was that the accident was not as a result of rash and negligent driving by him. When the bus reached Lal Mahalm, the scooter, which was till then following the bus, tried to over take the bus by the wrong side. Because the scooter was on the wrong side, he could not see, the scooter coming, from the driver seat, and the accident took place. The accused petitioner gave a written statement and also examined one witness in defence as DW I wherein a similar plea was taken. The learned Magistrate convicted and sentenced the accused -petitioner as aforesaid and as stated earlier the appeal was partly allowed. 4. The main contention of the learned Counsel for the accused- petitioner is that taking the facts as held proved by the learned court below, it cannot be said that the driver of the bus was driving the bus negligently. It is very sad that two persons lost their lives, but if somebody over- takes the bus from its wrong side, it is not possible for the driver to see them and, therefore, if any accident takes place, more so when the bus was not at high speed, the driver of the bus cannot be held guilty for negligent and rash driving. 5. A look at the judgment of the learned Magistrate will show that from the statement of the witnesses it can be said that the bus was not driven at a high speed by the petitioner and the scooter was going from its left side i.e. left side of the driver of the bus. Dealing with the argument raised before her, that the scooter driver who was one of the deceased persons, had overtaken the bus from the wrong side, the learned Magistrate said that she is unable to agree with this submission of the learned Counsel for the petitioner because PW 6 Sushila on whose statement such an argument has been advanced has clearly said in the cross examination that the scooter had overtaken the bus near Lal Mahal and the accident took place after 5.10 minutes thereafter. The learned Magistrate also said that may be that before the accident the scooter driver had over-taken the bus from the wrong side but when the accident took place it was being driven at the right side by its driver and it is a case of the negligence of the driver of the bus that the accident took place. 6. The learned Counsel for the petitioner has challenged the aforesaid finding of the learned Magistrate which the learned Sessions Judge has agreed, and his contention is that a perusal of the F.I.R. Ex. P.9 will show that the scooter driver over took the bus from wrong side. A look at Ex. P.9 will show that the scooter was following the bus and it was near Lalmahal which is near Jamua Ramgarh that the scooter over took the bus A look at Ex. P.7 a report of mechanical inspection will show that the foot brake was not in working order, and the joint of the brake pipe had opened, as a result of which foot brake was not working. It can, therefore, be said on the material on record that the scooter over took the bus from the wrong side and it was not possible for the driver to see from the driver seat where a mirror is also fitted, that any object is coming and somebody is overtaking from the wrong side. Immediately, the scooter over-took the bus as said earlier within a few minutes the occurrence took place. 7. It is a case where it cannot be said that the vehicle was being driven with defective brake. The very fact that the scooter over-took the bus from its wrong side shows that the bus at that time was not at a high speed and if that would have been so, it would not have been possible for the driver of the scooter to over-take the bus. On the evidence on record I am of the opinion that the prosecution has failed to establish that the incident took place and more so two persons lost their lives as a result of the negligent and rash driving of the accused petitioner. Consequently, I hereby allow this revision petition, set aside the judgment dated 22nd May 1986 of the learned Judicial Magistrate as well as dated 9th May 1988 of the learned Sessions Judge, Jaipur District, Jaipur. Consequently, I hereby allow this revision petition, set aside the judgment dated 22nd May 1986 of the learned Judicial Magistrate as well as dated 9th May 1988 of the learned Sessions Judge, Jaipur District, Jaipur. The conviction and sentence awarded to the accused petitioner under Section 304A is set aside. He is on bail and need not to surrender the bail bonds. The bail bonds stand discharged.Revision allowed. *******