JUDGMENT - Dr. (Smt.) PRATIBHA UPASANI, J.:---This criminal appeal is filed by the State, being aggrieved by the judgment and order dated 4-5-1999, passed by the learned J.M.F.C. Mapusa in Criminal Case No. 50/94/C. The learned J.M.F.C. by the impugned judgment and order acquitted the accused, Vaman Rama Salgaonkar of the offences for which he was charged. The said accused was charged for the offences punishable under section 279 and section 304-A of the Indian Penal Code. 2. The prosecution case can be briefly narrated as follows : On the fateful day, i.e. on 30-12-1993 at 08.15 hours, near Bodgeshwar Temple, on Mapusa-Porvorim road, a fatal accident took place in which two young persons lost their lives. The said accident took place in between two vehicles - one heavy vehicle namely a Kadamba bus No. GA-01-0087 and a motor cycle No.GA-01-M-6447. The offending vehicle, that is the kadamba bus, was being driven by the accused Vaman Rama Salgaonkar and was going from Mapusa to Panaji, while the victims' vehicle which was being driven by Shekhar Laxman Samant, and was coming from opposite direction, i.e. from Porvorim to Mapusa. There was a pillion rider also on the said motor cycle of Hero Honda make by name Deelip Arjun Revodkar. Driver Shekhar Samant was aged about 35 years, while pillion rider, Dilip Revodkar was about 30 years. The case of the prosecution is that this head on collision, between the two vehicles, took place on 30-12-1993 at 8.15 hours in the morning, near Bodgeshwar Temple because of the rash and negligent driving of the accused, Vaman Rama Salgaonkar and because of this rash and negligent act of the driver of the Kadamba bus, the motor cycle driver Shekhar Samant and pillion rider Deelip Revodkar sustained grave and fatal injuries. According to the prosecution story, the kadamba bus was being driven in a fast speed. It was also overtaking a rickshaw which was in front of the said bus and while so overtaking the said rickshaw, the accused gave a dash to the motor cycle which was coming from opposite direction. Deelip flew in the road side field and fell on the pipe, while Shekhar was thrown and dashed against a pole which was fixed by the side of the road. Deelip flew in the road side field and fell on the pipe, while Shekhar was thrown and dashed against a pole which was fixed by the side of the road. P.W. 1, Ulhas Dharwadkar who was also proceeding along with his friend by name Prakash Naik (P.W. 2) on a motor cycle, to Mapusa saw the accident. Ulhas went to see as to what happened to the persons who were injured. They took both of them to Asilo Hospital by rickshaw. Thereafter, the injured persons were referred to Bambolim Hospital. On the next day, both of them succumbed to their injuries. 3. Offences were registered by one Head Constable (P.W. 4). Thereafter, in due course, charge-sheet came to be filed in the Court of J.M.F.C., Mapusa. When charges were framed against the accused/respondent herein under sections 279 and 304-A of I.P.C., he denied the charges and claimed to be tried. 4. Learned J.M.F.C., Mapusa recorded the evidence of four prosecution witnesses and one defence witness and after hearing both sides, came to the conclusion that the prosecution had failed to establish beyond reasonable doubt the charges framed against the accused and by the impugned judgment and order dated 4-5-1999, acquitted the accused. Being aggrieved, the State has filed the present appeal against the judgment and order of acquittal passed by the J.M.F.C., Mapusa. 5. The prosecution has examined four witnesses to prove its case. P.W. 1 was one Ulhas Dharwadkar. He had stated in his deposition that on the date of the accident, he along with his friend Prakash Naik, (P.W. 2), was proceeding on a motor cycle to Mapusa. When they reached near Bodgeshwar Temple, Guirim, he saw that one rickshaw was proceeding towards Panaji. He also saw that one Kadamba bus was also proceeding towards Panaji and was trying to overtake the rickshaw. He also saw that another motor cycle was proceeding towards Mapusa and that the said motor cycle was in front of his motor cycle. P.W. 1, Ulhas had further stated that in the process of overtaking the rickshaw, the Kadamba bus gave a dash to the said motor cycle which was being driven in front of his motor cycle. P.W. 1 went to see as to what had happened to the rider of the motor cycle. He identified the rider as Shekhar Samant and that he was from Mardol. P.W. 1 went to see as to what had happened to the rider of the motor cycle. He identified the rider as Shekhar Samant and that he was from Mardol. P.W. 1 further stated that there was one more person by name Dilip Redkar. He had further stated that he took Shekhar Samant to Asilo Hospital by rickshaw and that Dilip Redkar was also taken to Asilo Hospital by a jeep. They were referred subsequently to Bambolim hospital, where they expired on the next day. According to P.W. 1, the Kadamba bus was being driven at a fast speed. He further stated that the accused was the driver of the Kadamba bus which was involved in the accident. He identified the accused in the Court. He further stated that he had acted as a panch for the inquest panchanama which was conducted on the next day of the accident. 6. P.W. 2, one Prakash Naik, was the pillion rider on the motor cycle driven by P.W. 1, Ulhas Dharwadkar. He also stated about the incident in the same way as stated by P.W. 1, Ulhas Dharwardkar. Their versions are almost identical. 7. P.W. 3, one Ramesh Naik, acted as a panch to the scene of accident panchanama. He gave the date, when he acted as pancha, as 13-12-1995. According to him, the spot were the accident took place was near a culvert. He further stated that in the vicinity of the spot of the accident, there was a temple of Bodgeshwar. He stated that when the panchanama was conducted, he saw that the bus was facing Panaji, and that it was on the right side of the road. He also saw that there was a motor cycle under the bus, in the front portion. He could not remember the number of the bus, but stated that it was a Kadamba bus and the motor cycle involved was a Hero Honda, though he could not remember the number of the said Hero Honda motor cycle. He stated that the road was about 6 metres wide at the spot of the accident and that it was a straight road. He identified the signatures on the panchanama and on the sketch drawn at the site. 8. P.W. 4, one Head Constable, Navnath Naik, registered the crime. He stated that the road was about 6 metres wide at the spot of the accident and that it was a straight road. He identified the signatures on the panchanama and on the sketch drawn at the site. 8. P.W. 4, one Head Constable, Navnath Naik, registered the crime. He stated that after registration of the crime, the investigation was handed over to one A.S.I., Shripad Naik, who later on expired. He deposed only from the records. 9. Thus, the prosecution story, which emerges from the deposition of these four witnesses, is that the accident took place because of the rash and negligent act of the accused who was driving the Kadamba bus at a high speed and in the process of overtaking the rickshaw which was in front of it. As far as eye-witnesses P.W. 1 and P.W. 2 are concerned, they have both consistently stated that the Kadamba bus was in a fast speed and that it was overtaking the rickshaw. The existence of the rickshaw in front of the Kadamba bus, which was being driven by the accused, is not denied by the defence. P.W. 1 stated that the rickshaw was proceeding towards Panaji and that he saw the accident from a distance of about 25 metres. P.W. 2 stated about the Kadamba bus overtaking the rickshaw, but he did not state in so many words whether the rickshaw was moving or whether it had stopped. In cross-examination, a suggestion was made by the defence that the bus suddenly swerved to the right side because the said rickshaw which was in front of the bus suddenly came to a halt, which was denied. P.W. 2 stated that he saw the accident from a distance of about 75 metres. 10. It can be seen that P.W. 1 and P.W. 2 have narrated a simple story about the accident having taken place because of the attempt of the accused to overtake the rickshaw. In cross-examination, their evidence is not shaken, except that there is a discrepancy as far as the distance from where they saw the accident. While P.W. 1 has stated that he saw the accident from a distance of about 25 metres from the spot of the accident, P.W. 2 has stated that he saw it from a distance of about 75 metres. 11. While P.W. 1 has stated that he saw the accident from a distance of about 25 metres from the spot of the accident, P.W. 2 has stated that he saw it from a distance of about 75 metres. 11. Thus, the admitted facts in this case are as follows : (1) the accident between the Kadamba bus and the motor cycle did take place; (2) both the victims, namely Shekhar and Dilip suffered injuries because of this accident; (3) the offending vehicle, namely the Kadamba bus was found to be on the right side of the Mapusa-Panaji road; (4) the accident occurred near a culvert; (5) there was a rickshaw going to Panaji from Mapusa which was in front of the Kadamba bus; and (6) the accused was the person who was driving the offending vehicle. 12. The only disputed points are, (1) whether the accused was constrained to take his vehicle on the right side of the road in order to avoid collision with the rickshaw which was right in front of it, or whether because it suddenly swerved, in the process of avoiding collision with the said rickshaw, unfortunately it dashed against the Hero Honda motor cycle which was coming from the opposite direction? (2) whether the act of the accused, in fact, was an attempt to overtake the said rickshaw on a narrow road without taking into consideration that he was taking his vehicle to the right side of the road and hence, it was incumbent upon him to look at the opposite direction to see and verify whether any vehicle from the opposite direction, was coming? and (3) whether he was rash and negligent in his act of taking the vehicle on the right side of the road? 13. The learned Public Prosecutor Shri Lawande, to substantiate the prosecution case, relied upon the principle of 'res ipsa loquitur'. He submitted that the panchanama of the place of the accident is not disputed by the accused and the position of the offending vehicle, since it was on the extreme right side of the road itself was sufficient to come to the conclusion that the accused was overtaking the said rickshaw and that this qua act which was rash and negligent, ultimately resulted into the death of two innocent persons. According to him, the circumstances are so telling that they speak for themselves. According to him, the circumstances are so telling that they speak for themselves. He relied upon the maxim 'res ipsa loquitur' and submitted that in criminal matters, to a certain extent this principle does apply. Learned P.P. submitted that there is no reason as to why the evidence of P.W. 1 and P.W. 2 should be disbelieved and discarded. He submitted that the presence of these two witnesses is not at all denied by the defence, nor is their testimony shaken in any way in their cross-examination. Therefore, according to the learned P.P., the evidence of these eye-witnesses is sufficient to come to the conclusion that the accused was guilty of the offence for which he was charged. 14. Learned Public Prosecutor Shri A.P. Lawande submitted that the fact that the bus driven by the accused was on the extreme right side of the road, itself is sufficient to prove the negligence of the accused. Considering the scope of the maxim 'res ipsa loquitur' and the defence put forward by the accused, in my opinion, that may not be so. 15. The maxim 'res ipsa loquitur' is a part of the branch of the Law of Torts. The maxim means 'the thing speaks for itself'. This maxim was declared by the Exchequer Chamber in 1865 in (Scott v. London Dock Co.)1, 3 H C 596. This maxim is a rebuttable presumption or inference that the defendant was negligent, which arises upon proof that instrumentality causing injury was in defendant's exclusive control and that the accident was one which ordinarily does not happen in the absence of negligence. The Supreme Court in (Syed Akbar v. State of Karnataka)2, A.I.R. 1979 S.C. 1848 has discussed the applicability of the maxim 'res ipsa loquitur' in civil as well as criminal cases, in the light of the provisions of the Evidence Act. It has been observed as follows: ".....As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. ......." 16. In the case at hand, the maxim 'res ipsa loquitur' may not apply in my opinion, as is submitted by learned Public Prosecutor, because the accused has given reasonable explanation as to the cause of the accident. 17. The defence also examined the conductor of the offending bus, Rama Raut (D.W. 1). D.W. 1 stated in his deposition that on the fateful day, he was the conductor of the Kadamba bus GA-01/X-0087. He stated that the said bus met with the accident near the bridge at Bodgeshwar Temple at Mapusa. He stated that the bus was proceeding from Mapusa to Panaji and that there was a passenger rickshaw in front of their bus. He further deposed that the distance between the said passenger rickshaw and the Kadamba bus was about 3 metres and that there were other vehicles also in front and also at their back. D.W. 1 further deposed that near the bridge, suddenly the rickshaw which was in front of the Kadamba bus stopped and as there was no sufficient space, the driver of the bus, namely the accused applied brakes, but that in the said process, their bus went to the right side and one motor cycle which was coming from the opposite direction dashed against their bus. He stated that there was no overtaking and that there was no space for overtaking in fact at the said place. 18. It will be seen that even the defence witness is not shaken anywhere in his cross-examination. Hence the same yardstick applied to the depositions of P.W. 1 and P.W. 2, has also to be applied to the deposition the defence witness D.W. 1. 18. It will be seen that even the defence witness is not shaken anywhere in his cross-examination. Hence the same yardstick applied to the depositions of P.W. 1 and P.W. 2, has also to be applied to the deposition the defence witness D.W. 1. The case was narrated by P.W. 1 and P.W. 2 is that there was a rickshaw which was in front of the said bus and that the offending vehicle driven by the accused was trying to overtake the rickshaw and while doing so, it dashed against the victims vehicle which was coming from the opposite direction and thus the accident took place. D.W. 1, in his version, on the other hand, has stated that the rickshaw which was in front of the offending vehicle suddenly came to a halt compelling the driver of the offending vehicle to take the bus to the right side (to avoid collision with the rickshaw) and that in that process, it went to the right side of the road and collided against the motor cycle on which both the deceased were travelling and which was being driven by Shekhar. 19. Once the defence has put forward some story in support of its case by examining a defence witness, whose narration also is not shaken in the cross-examination, the Court has to test the said story put forward by the defence by preponderance of probability. The prosecution case stands or falls on its own merits, and in all cases, it is the prosecution who has to prove its case beyond a shadow of reasonable doubt. But, once a particular defence is taken by the accused, the story given by the defence has to be tested by preponderance of probability. The Court has to consider whether the story put forward by the accused is so improbable that it warrants outright rejection and to conclude that it is an improbable story. Keeping this principle in mind, the questions have to be answered. 20. In the case at hand, it is an admitted position that there was a rickshaw which was going towards the same direction, i.e. from Mapusa to Panaji. It is also an admitted position that at the spot where the accident took place, there is Bodgeshwar Temple. D.W. 1 has deposed that distance between the offending bus and the rickshaw, was 3 metres. It is also an admitted position that at the spot where the accident took place, there is Bodgeshwar Temple. D.W. 1 has deposed that distance between the offending bus and the rickshaw, was 3 metres. The version of the defence is that the said rickshaw, which was a passenger rickshaw, suddenly stopped in the vicinity of Bodgeshwar Temple near the bridge and the driver of the offending bus suddenly swerved on the right side of the road to avoid collision with the said rickshaw which came to a sudden halt, without giving any signal. Thus, it appears that the driver of the bus swerved suddenly to the right side in order to avoid giving dash to the said rickshaw. Unfortunately, however, while taking his vehicle to the right side of the road, he faced another accident. Now, whether this action done advertently or inadvertently, can be branded as 'rash and negligent' act? No doubt, two precious lives were lost because of the accident and this was very unfortunate. But, if the driver, by driving his bus to the right to avoid one accident involved himself in another accident, whether this act can be called as 'rash and negligent' ? Considering the defence story and testing it on the touchstone of probability, it cannot be said that it is so unbelievable that it merits outright rejection. There indeed is a temple nearby where the accident took place. The passenger rickshaw was in front of the offending bus. The story put forward by the defence that it suddenly stopped, cannot be outrightly rejected. It is not that unbelievable, imaginary or perverse, so as to disbelieve and reject it outright. If tested on the touch-stone of preponderance of probability, the story as given by the defence appears to be believable. 21. The prosecution is handicapped because of scanty material that is produced before the Court. It appears that the Investigating Officer who was in charge of this case expired and, therefore, was not available for giving his deposition. P.W. 4 was the Head Constable who, initially, registered the offence. He could depose only from the record. He had not himself carried out any investigation. 22. The prosecution story is further handicapped by not examining the person who was driving the passenger rickshaw, which allegedly came to a sudden halt and because of which the accident took place. P.W. 4 was the Head Constable who, initially, registered the offence. He could depose only from the record. He had not himself carried out any investigation. 22. The prosecution story is further handicapped by not examining the person who was driving the passenger rickshaw, which allegedly came to a sudden halt and because of which the accident took place. It is also not stated anywhere by the so called I.O. as to what efforts were made by him to trace the said rickshaw driver to bring best evidence before the Court, nor any single passenger from the Kadamba bus was examined who could have said something about the accident. The prosecution story is revealed in the evidence of P.W. 1 and P.W. 2. Not that the evidence of P.W.1 and P.W. 2 is totally unbelievable, but it will be unsafe to depend solely upon their evidence, considering the fact that they were also on a moving vehicle and also considering that P.W. 1 was knowing Shekhar by his name. Thus the sympathy factor cannot be completely ruled out and ignored. The discrepancy as far as the distance from where the accident was allegedly seen by P.W. 1 and P.W. 2 also can be highlighted. P.W. 3 has also given some wrong date when he stated that the scene of accident panchanama was conducted on 13-12-1995, when as per the records it was conducted on the very same day. The prosecution is certainly handicapped by non-examination of the driver of the passenger rickshaw which was, allegedly, the cause of the accident. Learned Advocate Shri Lotlikar appearing for the accused rightly relied upon (Nageshwar Shri Krishna Choube v. State of Maharashtra)3, 1973 Maharashtra Law Journal 144 to substantiate his argument that non-examination of the driver of the said rickshaw leaves lacuna in bringing home guilt of the accused and that the story put forward by the accused, though not conclusive, was not liable to outright rejection. 23. Shri Lotlikar, learned Advocate appearing for the accused also relied upon (The State v. Vithal Maruti Patil)4, A.I.R. 1953 Bombay 369. He highlighted the principle laid down in this case which can be summed up as under :--- "It is well settled that in an appeal under section 417, Criminal P.C., the High Court has full power to review the evidence upon which the order of acquittal was founded. He highlighted the principle laid down in this case which can be summed up as under :--- "It is well settled that in an appeal under section 417, Criminal P.C., the High Court has full power to review the evidence upon which the order of acquittal was founded. It is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial Court, and the finding of the trial Court, which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons. Inevitably, therefore, the Government Pleader must satisfy the High Court in appeals against acquittals that the conclusions of the trial Court are not at all possible on the evidence on the record. In other words, the High Court must not only come to the conclusion that the offence is proved beyond reasonable doubt; but must also feel satisfied that it is difficult, if not impossible, to see how a contrary view can be held on the material available in the case." I am in agreement with Shri Lotlikar that these principles have to be kept in mind while dealing with appeal filed by the State against acquittal. 24. Learned Public Prosecutor, Shri Lawande, argued that during the examination under section 313 Cri.P.C., the accused did not state anything and did not explain anything though he had a chance to say so. No doubt, examination under section 313 Cri.P.C. is not an empty formality and the accused has to be put all the adverse circumstances so that he gets opportunity to explain. All the same, it cannot be said in the present case when the accused has examined D.W. 1, Rama Raot, the bus conductor as defence witness that his defence is not clear or that it is ambiguous or that in addition he would have said something in his examination under section 313 Cri.P.C. also. The accused has come up with his specific defence which is sufficiently disclosed in the course of cross-examination of the prosecution witnesses and in the evidence of defence witness. Therefore, I find no substance in the argument of learned P.P. Shri Lawande. 25. Thus, after appreciating the entire evidence on record, in my opinion, relying on the sole evidence of P.W. 1 and P.W. 2, who, allegedly, are the eye-witnesses, will be risky. Therefore, I find no substance in the argument of learned P.P. Shri Lawande. 25. Thus, after appreciating the entire evidence on record, in my opinion, relying on the sole evidence of P.W. 1 and P.W. 2, who, allegedly, are the eye-witnesses, will be risky. Evidence of D.W. 1 has also to be given credibility, as his deposition is not given dent to in the cross-examination. So, applying the same yardstick, it has to be stated that there is no reason to discard his evidence, more so when he is a defence witness coming out with a categorical defence. As already mentioned, the defence story has to be tested on the touchstone of preponderance of probability. His defence does not merit outright rejection. 26. The trial Court has recorded a finding of acquittal, though on a very flimsy ground. I am confirming the finding of the lower Court for different reasons as discussed above. It has to be said the judgment of the lower Court and the reasoning given is far from being satisfactory. I do not want to say anything further, but the evidence that has been recorded, questions put to the accused under section 313 Cri.P.C. and as stated above, the judgment delivered is of a quality which needs improvement. All the same, I have to come to the conclusion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence the following order:--- The appeal is dismissed. Appeal dismissed. -----