JUDGMENT This criminal revision is directed against the judgment of conviction and order dated 1.11.1990 passed by the learned Addl. Sessions Judge, Shahdol in Criminal Appeal No. 38 of 1990 whereby he dismissed the appeal affirming the conviction and sentence of the applicant under section 304-A of the Indian Penal Code. The applicant was prosecuted for an offence under section 304-A I.P.C. for causing death of Vishnu Prasad on account of rash and negligent driving of the Madhya Pradesh State Road Transport Corporation Bus No. MBW 1360 on 5.6.88. The trial Court on consideration of the evidence convicted the applicant and sentenced him to undergo R.I. for one year. Shri Mrigendra Singh, learned counsel for the applicant, has contended that the applicant has been convicted on mere conjuctures and surmises. There is no legal evidence on the record to sustain the conviction of the applicant. The prosecution examined in all eight witnesses at the trial, but none of them has stated that the applicant was driving the offending bus at the relevant time. The trial Court however, convicted the applicant relying upon the testimony of Digvijay Singh (PW-4), who deposed that when he was taking the injured Vishnu Prasad since deceased to the District Hospital Shahdol for his treatment on his jeep, he found the applicant being chased by the villagers on the appreciation being thief when he enquired from the applicant as to why he was running away he said that he was a driver of the offending bus which met with an accident. But P.W.-4 had not stated so before the police in course of the investigation of the case. Therefore, the evidence of Digvijay Singh (PW-4) is not consistent with his earlier statement made under section 161 of the Code of Criminal procedure, therefore, no reliance could be placed on the testimony of the PW-4 to base the conviction of the applicant in this case. The contention of Shri Singh is well founded. It is well settled that conviction cannot be based relying upon the testimony of a witness whose evidence is not consistent with his earlier statement made under section 161 of the Code of Criminal Procedure. For the reasons mentioned aforesaid, the impugned order cannot be sustained. Accordingly it is set aside and in the result the revision application is allowed.