JUDGMENT M. R. Verma J.: This in an appeal against the judgment dated 30.8.1985 passed by the learned Chief Judicial Magistrate, Dharamshala whereby the accused-respondent (here-in-after referred to as ‘the accused) has been acquitted of the accusations under Sections 279 and 304-A of the Indian Penal Code. 2. Case of the prosecution, in brief, is that on 12.4.1993 the accused was driving bus No. HPK-2771 on a public High-way. At about 4.15 PM at Gharoh the head of Sushil Kumar who was travelling in the bus struck against an electric pole and he died. It is alleged that the head of said Sushil struck against the pole due to the rash and negligent driving of the vehicle by the accused. On coming to know these facts PW-1 Chatter Singh made statement Ex. PW-1/A which was recorded by PW-7 Suresh Kumar, S.I. Police Station, Dharamshala on the basis of which formal F.I.R. Ex. PW-6/A was recorded in the said police station. During the course of investigation the post mortem of the dead body of Sushil Kumar was got conducted and as per the opinion therein the cause of the death of said Sushil Kumar was the head injury leading to explusion of brain matter. After recording the statements of some witnesses the Investigating Agency came to the conclusion that it was due to the rash and negligent driving of the bus by the accused that the head of the deceased struck against the electric pole as a consequence whereof he died. Hence, the Officer Incharge, Police Station, Dharamshala submitted a charge-sheet against the accused. The accused came to be tried by the learned Chief Judicial Magistrate, Dharamshala on the accusations under Sections 279 and 304-A of the Indian Penal Code who vide the impugned judgment acquitted the accused. 3. I have heard the learned Additional Advocate General for the appellant and the learned counsel for the accused and have also gone through the records. 4. It is not disputed that Sushil Kumar died of the head injury sustained by him due to stricking of his head against an electric pole while he was sitting in the bus in question. Thus, the only question for determination which arises in this matter is as to whether the injuries so sustained by Sushil Kumar were due to rash and / or negligent driving of the vehicle by the accused or not. 5. Thus, the only question for determination which arises in this matter is as to whether the injuries so sustained by Sushil Kumar were due to rash and / or negligent driving of the vehicle by the accused or not. 5. To sustain conviction of the accused in a case under Sections 279 and 304-A I.P.C. one of the most important ingredients amongst others is that the vehicle must be driven in a rash and / or negligent manner on a public road and that the death must be as a result of such rash and/or negligent driving. The Honbel Supreme Court of India in S.N. Hussain vs. State of Andhra Pradeshy has held as follows:- "Rashness consist in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act, with recklessness or in difference as to the consequence. Criminal negligence on the other hand, is the gross and culpable neglect of failure to exercise that reason and proper care and the precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances, out of which the charge has arisen, it was the imperative duty of the accused person to have adopted." 6. To substantiate the allegations that it was due to the rash and negligent driving of the vehicle by the accused, prosecution relied on the statements of PW-1 Chatter Singh, the informant, and PW-5 Madhu Sudan the alleged eye-witness of the occurrence. 7. PW-1 Chatter Singh is not the eye-witness of the occurrence. He admittedly reached at the place of the occurrence after five or seven minutes of the occurrence and at that time 40 or 50 persons were present on the spot. What he states is on the basis of what he has seen on the spot after the occurrence and has stated that on visiting the spot he saw that the head of his son Sushil Kumar had been smashed due to strike of the electric pole and that the accident had occurred due to the mistake of the driver as he had taken the. bus on the wrong side.: Since the witness was not present at the time when the head of the deceased struck against the electric pole, therefore, evidently be is not aware as to under what circumstances the head of his son had struck against the electric pole. 8. PW-5 Madhu Sudan who according to the prosecution was the eyewitness of the occurrence has not supported the prosecution case. Thus, there is no eye account of the occurrence available. 9. On the re-apraisal of the evidence on record it emerges that the two vehicles one of which was the bus were passing on the spot and the head of the j deceased who was sitting in the bus was out of the window and in that situation it struck against the electric pole and was smashed. Thus, it is evident that it was the deceased who had taken his head out of the window while the bus was in movement and this act on the part of the deceased resulted in his sustaining the injury. Evidently, in such a situation the accused could not have been held responsible for causing any injury to the accused by an act of rashness and/or negligence on his part. The learned trial Magistrate, has therefore, rightly concluded after con act appraisal of the material on record that the evidence produced by the prosecution in the case is insufficient to bring home the guilt of the accused. Hence, the impugned order of acquittal does not call for any interference by this Court. 10. As a result the appeal fails and is accordingly dismissed. Bail bonds furnished by the accused are discharged.