ORDER: The revision petitioner is the accused in C.C.No.196 of 1996 on the file of the Judicial Magistrate, No.I, Attur. He stood charged for the offences under Secs.279, 304(A) of I.P.C. learned Judicial Magistrate found him guilty and convicted him under Sec.304 (A) of I.P.C. and sentenced him to undergo six months R.I. and also to pay a fine of Rs.2,000 in default to undergo three months R.I. 2. On appeal to the first Additional District and Sessions Judge, the conviction and sentence were confirmed. Aggrieved by the same, the accused has preferred this revision petition. 3. Brief facts are that on 26.4.1996 at about 12.15 p.m., the accused was driving the Anna Transport Corporation bus, bearing registration No.TN 27 N 0541 and the bus was proceeding towards Attur from Salem. At the same time, when the bus was nearing Etthapur railway station, it dashed against the boy viz., Ranjith Kumar, in which, he succumbed to injuries. Loganathan, who had seen the accident had reported the matter to the police. One Raja P.W.2 also had witnessed the said accident. 4. The trial Court, after having analysed both oral and documentary evidence, came to the conclusion that the accident had taken place only due to rash and negligent act on the part of the accused and convicted and sentenced him as referred above. 5. Learned senior advocate, appearing for the petitioner, has submitted that the conviction inflicted upon the petitioner is not valid for the following reasons: (1) The first information report alone is not sufficient to warrant the conviction as it cannot be used as substantive evidence. It can be used either to corroborate or to contradict its maker. (2) The evidence of P.Ws. 1 and 2, the so called eye witnesses are not helpful to warrant the conviction; (3) When the accused was acquitted for the charge under Sec.279 of I.P.C., the conviction under Sec.304(A) of I.P.C. is frustrated and not sustainable. 6. Learned senior advocate has come heavily on the first information report, by pointing but that it was prepared by the police officers and the statement contained in the first information report are not true and correct. He is fair enough in pointing out that in the first information report, the ingredients of Sec.304(A) of I.P.C. find a place, as it contains that the accused drove the bus rashly and negligently and without blowing the horn. He is fair enough in pointing out that in the first information report, the ingredients of Sec.304(A) of I.P.C. find a place, as it contains that the accused drove the bus rashly and negligently and without blowing the horn. But, this part of the statement in the F.I.R. was left uncorroborated by the author of the F.I.R. Loganathan, as P.W.1 Incidentally, he referred to the evidence of P.W.1 Loganathan, who is his evidence has not deposed what he has stated in the F.I.R. what all he has stated is that he was proceeding to the road for fetching water and at that time, a boy (the victim) was also proceeding in the road and at that time, Anna Transport Corporation bus, which was coming from Salem and proceeding to Attur dashed against the boy, in which he died on the spot itself. Except his, statement in the F.I.R., there is no other material to show that the accused drove the bus in a rash and negligent manner, which caused the accident. 7. Learned senior advocate also referred to the evidence of P.W.2, Raja who is said to be another eye witness to the occurrence, who in his evidence has stated that he was having lands on the backside of Leprosy Hospital and on the date of the accident, he heard a sound and then seen that the bus hit against the boy in which the boy died on the spot itself. Learned advocate for the petitioner also referred to the evidence of P.W.4 grandfather of the deceased, who also deposed that only after hearing the sound, he turned to the said direction, rushed to that place, where he had seen his grandson had sustained injuries and died on the spot itself. By pointing out the above said evidence of P.Ws.1, 2 and 4 he has argued that no one speaks that the petitioner has driven the bus in a rash and negligent manner and in the absence of any evidence to that extent, the conviction is unwarranted. 8. Learned senior advocate relied upon the case of State of Madhya Pradesh v. Surbhan, 1996 Crl.L.J. 3199, wherein the Supreme Court held: “The F.I.R. cannot be used as substantive evidence or corroborating a statement of third party, i.e., P.W.2 F.I.R. cannot be used to corroborate the evidence of P.W.2. It can be used either to corroborate or for contradiction of its maker”. It can be used either to corroborate or for contradiction of its maker”. 9. In our case, P.W.1, who is the author of the F.I.R. is not able to give an account of the rash and negligent driving of the petitioner as stated in the F.I.R. and that therefore, the contradiction between the statement in the F.I.R. and the evidence are made out and it would enure to the benefit of the accused. 10. Learned senior advocate for the petitioner then proceeded to submit that the petitioner stood charged for an offence under Sec.279 and 304(A) of I.P.C. as well. Sec.279 of I.P.C. reads as follows: Rash driving or riding on a public way: Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extent to six months, or with fine which may extent to one thousand rupees, or with both. Sec.304(A) of the I.P.C. read as follows: Causing death by negligence: Whoever cause the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extent to two years, or with fine, or with both. The main ingredients in both the sections are “rash or negligent” Sec.279 speaks about the driving of the vehicle in a manner so rash or negligent. Sec.304(A) contemplates an Act, which is rash or negligent. Pointing out the common words in both the sections “rash” or “negligent” learned senior advocate has submitted that if the petitioner drove the vehicle in a rash or negligent manner as contemplated under Sec.279, the Courts below should have convicted him for the said offence. But, however, the Courts below have acquitted the petitioner under Sec.279 and convicted under Sec.304(A), I.P.C. which is not permissible. When rash or negligent driving is not proved under Sec.279 of I.P.C. the rash or negligent act contemplated under Sec.304(A) also has got to be held disproved. On that analogy the Courts should have drawn an adverse inference against the case of the prosecution that they have not brought home the offence said to have been committed by the petitioner/ accused. 11. On that analogy the Courts should have drawn an adverse inference against the case of the prosecution that they have not brought home the offence said to have been committed by the petitioner/ accused. 11. Learned senior advocate for the petitioner relied upon the decision of Ladu Kishore Choudhury v. State of Orissa, 2000 Crl.L.J. 3617, wherein it was observed: “In order to constitute the offence under Sec.304(A) of I.P.C., the prosecution should prove that the death of the person must have been caused by the accused by doing any act in a rash and negligent manner and as such there must be positive proof that the rash or negligent act of the accused was proximate cause which resulted in death of the deceased. Before a person convicted for the offence under Sec.304-A of the I.P.C., it must be proved that the act was done with consciousness risk and consequences of death was likely to follow therefrom and there was mens rea in doing such negligent Act”. 12. In our case also, there is absolutely no material to show that the petitioner’s act was either rash or negligent. It may even be true that the petitioner might have driven the vehicle in high speed but that does not mean that he was driving the bus in a rash and negligent manner. Mere driving the vehicle in a high speed alone is not sufficient to bring the offence under Sec.304(A) of I.P.C. The Act either must be rash or negligent, and in the absence of evidence to that effect, I find it very difficult to sustain the order of conviction imposed upon the petitioner. 13. Learned senior advocate further pointed out on facts also that the petitioner could not have driven the bus in a rash and negligent manner for the reason that the width of the road at the scene of occurrence is 22 ft., and the offended bus was proceeding from West to East and the distance between the scene of occurrence and Tar portion of the road on the northern side is 2 ft. The width of the bus would be 6 to 8 ft. The width of the bus would be 6 to 8 ft. From the centre point of the road, the north half of the road will be 11 ft., only and that therefore, it is submitted that the bus was going in its usual route, without any deviation and hence, it cannot at all be said that the bus was going in a wrong direction or in a deviated direction and the victim had enough space to the north of the place of accident and if he had walked in the said place, he could have also avoided the accident. By submitting that, the learned senior advocate does not mean that one should not walk in the tar portion of the road, but what all he wants to emphasis is that the bus was proceeding properly in a proper direction without any deviation and the petitioner had no intention to cause the accident. 14. The Courts below have also omitted to consider the fact that the petitioner was acquitted under Sec.279 of I.P.C. and the evidence of P.Ws.1 and 2, who are said to be the eye witnesses to the accident do not speak any rash or negligent act of the petitioner to support the ingredients of Sec.304 of I.P.C. 15. On a careful consideration of all the aspects of the case and also the lack of evidence to substantiate the offence and the acquittal of the accused under Sec.279 of I.P.C., I am of the view that the order of conviction passed by the Court below are vitiated and liable to be set aside. 16. In the result, this criminal revision petition is allowed and the accused is acquitted and fine amount if any, paid by him shall be refunded. The surety bond, if any, executed shall stand cancelled.