This revision petition is directed against the appellate judgment and order dated 4.4.95 passed by Sessions Judge, Nagaon thereby affirming petitioner's conviction arid sentence under section 304A IPC as recorded by the trial Court, sentencing the petitioner to undergo six months simple imprisonment and payment of fine of Rs. 1000/-, or in default of payment of fine to suffer 15 days SI. 2. Briefly stated prosecution case was that on 14.9.90, Shri Kuseswar Saikia, a school teacher of Jangalbahu School was travelling by a mini bus and while reaching near Jangalbahu fishery at around 10 AM he got down from the mini bus and the bus left the place at once. In the meantime a tracker driven by the accused-petitioner bearing registration No.AXA 7319 coming from opposite direction at a high speed knocked him down causing injuries to his person. The injured was immediately removed to Raha Hospital initially and subsequently to Nagaon Civil Hospital for treatment where he succumbed to his injuries. 3. The accused was charged and tried for the above offence, he was found guilty by the trial Court who convicted and sentenced him as already noted above, the same has been affirmed on appeal, hence this revision petition. 4. Mr. Chowdliury, learned counsel appearing for the petitioner submitted that the evidence of PWs 5 and 6 who were examined as eye witneses to the occurrence, even if taken as it is, it does not make out the essential ingredients of the offence under section 304IPC. It was argued that the deceased made a sudden appearance on the centre of the road, taking a round of the bus from which he had alighted, in the circumstances the accused could not be held guilty. 5. Learned Public Prosecutor supported the conviction as proper. 6. Before proceeding further. I would like to note, that the evidence of PW 5 being in Assamese, a language not known to me, the counsel for the petitioner was requested to supply a translated copy which he did and the same has been approved as correct translation of the statement of PW 5. It is the agreed translation which I have taken into consideration when necessary. 7. It is the agreed translation which I have taken into consideration when necessary. 7. In order to sustain conviction under section 304A IPC and to impose criminal liability under section 304A Indian Penal Code, it is necessary that the death should have been the direct result of a rash or negligent act of the accused, and that act must be the proximate and efficient cause, without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non. The main criterion for deciding, whether the driving which led to the accident was rash and negligent is not only the speed, but the width of the road, the density of the traffic and the attempt to overtake the other vehicles resulting in going to the wrong side of the road and being responsible for the accident. Even if the accident took place in the twinkling of an eye, it is not difficult for eye witnesses to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle travelling on that side of the .road. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution, must be culpable or gross and not the negligence merely based upon an error of judgment. Where a pedastrian suddenly crossed the road from West to East without taking note of the approaching bus, there was every possibility of his dashing against the bus without the driver becoming aware of his crossing till it was too late. The bus driver may not be in a position to save the accident however slowly he may be driving. 8. Applying the above tests and principles as enunciated by the Supreme Court in Shakila Khader vs. Nausher Gama, AIR 1975 SC 1324 and M.H. Lokre vs. State of Maharashtra, AIR 1972 SC 221 . Let us examine the case at hand. 9. Whether the prosecution has established culpable negligence on the part of the accused petitioner? In this context, the evidence of PWs 4 and 5 is material. It is quoted below (as per translated version supplied and agreed to be correct translation by the PP). "Shri Dhaneswar Kakati - PW 4 : Kula Saikia was school teacher of Tungal Bolohu LP School. Occurrence took place at 10 AM on 14.9.90. In this context, the evidence of PWs 4 and 5 is material. It is quoted below (as per translated version supplied and agreed to be correct translation by the PP). "Shri Dhaneswar Kakati - PW 4 : Kula Saikia was school teacher of Tungal Bolohu LP School. Occurrence took place at 10 AM on 14.9.90. At that time I was working as muster roll labourer. In Tonga! Bolohu Fishery, we were then working at a distance of 20 feet from the gate. At that time one 407 bus came from Roha side and stopped near our gate, Kula Saikia got down from the bus. I saw bus being stopped and Kula Saikia getting down from it. When the bus started went a little ahead from the opposite side a trekker like vehicle with great speed came and when Kula Saikia crossed the road the trekker dashed him. I did not hear blowing of horn by the tiekker. As Kula Saikia was about to cross the road the trekker dashed and as a result he fell down on the left side of the road. He had an umbrella in his hand. XXX Kula Saikia got down from the bus from the left side. I was working in the right side ... ... 1 was not looking at the trekker it came to my sight suddently ... ... For whose negligence the occurrence took place I do not know." Shri Moheswar Gayan, PW 5 : I saw a 407 bus coming from Raha side stopping near our farm I was about 50 feet inside the farm then I heard a sound and looking back I saw a tekker coming speedily from Guwahati side dashed against a person ...... He came in 407 bus/vehicle and crossed the road. I did not hear blowing of horn or any sound of applying brake." 10. It would not be out of place to note here that the accused has been acquitted of the charge under section 279 IPC and the acquittal has not been challenged by the State in appeal. Section 279 IPC requires two things - (1) Driving of a vehicle or riding on a public way. (2) Such driving or riding must be so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person. Section 279 IPC requires two things - (1) Driving of a vehicle or riding on a public way. (2) Such driving or riding must be so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person. It was argued by the learned counsel that the essential ingredient being substantially the same, the accused acquitted of the charge of section 279 IPC could not legally be convicted under section 304A IPC. Going through the appellate judgment, it would be seen that the learned Sessions Judge has properly dealt with the aspect of the matter with reference to section 71 IPC and the observation made by the trial Court. 11. There is a patent error of law regarding conviction under section 304A IPC and this error relates to presumptions deducible from the doctrine of res ipsa loquitur although reference has been made to Syed Akbar vs. State of Karnataka, AIR 1979 SC 1848 but its ratio has been totally misunderstood by both the trial Court as well as the learned Sessions Judge as can be seen from the following passage extracted from his judgment: "In the impugned judgment the learned trial Magistrate has applied the principles of res ipsa loquitur. In the case of Sayed Akbar vs. State of Karnataka, AIR 1979 SC 1848 . The Hon'ble Supreme Court held : 'Under the Evidence Act, the general rule is that the burden of proving negligence as cause of the accident lies on the party who alleges it. But that party can take advantage of presumptions which may be available to him to lighten that burden. Presumption are of three types. (i) Permissive presumption or presumptions of facts (ii) Compelling presumptions for presumptions of the law (rebuttable) (iii) Irrebuttable presumptions of law or conclusive proof' On consideration of the evidence on record I find that the prosecution has discharged their burden of proving that the accused was negligent and the accident occurred by his negligence. The accused has not adduced any rebutting evidence or offered any reasonable explanation." 12. The accused has not adduced any rebutting evidence or offered any reasonable explanation." 12. It is significant to note that the learned Judge has not recorded his disgreement with the trial Court on the point rather concurring has proceeded to hold that in view of the evidence the charge is proved and the evidence as noted above, fails to make out and affirmatively establish negligence on the part of the accused. From the impugned appellate judgment it is difficult to say, how much of the judgment is based on presumption and to what extent it has gone into the decision making process of the learned Sessions Judge who has affirmed the conviction. It needs to be noted that the Supreme Court reversing Karnataka High Court judgment has categorically held that the doctrine of res ipsa loquitur cannot be applied to a criminal trial. 13. In the circumstances, the conviction as recorded against the petitioner cannot be allowed to stand the accused is entitled to benefit of doubt. His conviction and sentence is accordingly set aside. The revision petition is allowed. The petitioner is acquitted of the charges framed against him.