K. RAMANNA, J. ( 1 ) THIS revision petition is directed against the judgment dated 15-1-2001 passed by the learned Sessions Judge, Bangalore Rural district Bangalore, in Crl. Appeal No. 23 of 2000 whereby the learned Sessions Judge partly allowed the appeal by setting aside the impugned order dated 10-7-2002 passed by the Additional CJM, Bangalore, in CC. No. 984 of 1997 and modified the sentence of imprisonment from one year to six months for an offence punishable under Section 279 ipc and so also reduced the fine amount from Rs. 5,000/- to Rs. 1,000/ -. ( 2 ) ASSAILING both the orders passed by the courts below, the revision petitioner/ accused has come up under revision mainly on the ground that even though the prosecution has not examined, the Motor vehicle Inspector to prove the contents of the report Ex. P-5 is wrong is coming to the conclusion that the revision petitioner/ accused was rash and negligent in driving the mini bus and P. Ws. 4, 6, 8 and 9 are not the eye witnesses to the incident. Even though the prosecution has failed to prove the negligence on the part of the revision petitioner, both the Courts below have wrongly recorded their findings that the revision petitioner was rash and negligent in driving the vehicle and that he was responsible for this accident. ( 3 ) THE brief facts leading to this case are that on 16-4-1997 at about 9 a. m. the revision petitioner being the driver of the mini bus bearing KA-07-737 drove the vehicle in a rash and negligent manner on Bommasandra road and he took the said bus to the extreme right side and consequently, the mini bus turtled and several inmates of the mini bus sustained injuries and a passenger by name geetha died at the spot and another passenger by name Miss. Ratna died on the way to the hospital. Therefore, the law was set in motion on the basis of the complaint lodged by p. W. 1-father of the deceased Geetha. After completion of investigation, charge-sheet has been filed against the revision petitioner for an offence under Sections 279,337,338 and 304-A of IPC. Ratna died on the way to the hospital. Therefore, the law was set in motion on the basis of the complaint lodged by p. W. 1-father of the deceased Geetha. After completion of investigation, charge-sheet has been filed against the revision petitioner for an offence under Sections 279,337,338 and 304-A of IPC. After considering the evidence of the prosecution witnesses and the documentary evidence, the trial court namely the Additional CJM convicted the revision petitioner and sentenced him to undergo S. I. totally for a period of four and a half years for an offence punishable under Sections 279, 337, 338 and 304-A of IPC, further he was directed to pay fine of Rs. 5,000/- for an offence punishable under Section 304-A IPC, in default to undergo S. I. for six months. But in the appeal the said sentence was modified by the learned Sessions Judge. ( 4 ) HEARD further arguments of thelearned counsel appearing for the revision petitioner and Sri S,g. Rajendra Reddy, learned h. C. G. P. ( 5 ) HAVING heard the arguments of the learned Counsel appearing on both side, the point that arises for my consideration and decision is:- (a) Whether the findings recorded by the courts below in convicting the revision petitioner is perverse, incorrect or illegal? (b) If so, whether it calls for any interference? ( 6 ) IT is an undisputed fact that on the relevant date and time, the revision petitioner was the driver of the said mini bus involved in the accident and number of passengers who travelled in that bus and out of them, c. Ws. 2 to 20 are the persons who sustained injuries. ( 7 ) IN this behalf, learned Counsel for the revision petitioner submitted, that there is difference in between the eye witness and the injured witness. The prosecution who relies on the evidence of P. Ws. 4, 6, 8 and 9 are not the eye witnesses and they may be called as the passengers or Inmates of the said bus. It is also submitted that on the date of the accident, there were about 30 to 35 passengers in the mini bus where seating capacity of about 10 to 15 and the bus was very much crowded and the passengers in the mini bus could not even see the road because of heavy load of the passengers standing in the mini bus. Therefore, learned counsel for the revision petitioner submitted that since the prosecution has not examined any other independent witness to prove the rash and negligent driving of the mini bus by the revision, petitioner, therefore, the finding recorded by the trial court and confirmed by the learned Sessions Judge with regard to the rash and negligent driving of the vehicle in question cannot be correct. Further, it is submitted that the prosecution is expected to stand on its own leg and it should not rely on the weakness of the defence. The presumption that the principles of res-ipsa-loquitur is not at all applicable to the facts of the case on hand and non-examination of the Motor Vehicle Inspector is fatal to the case of the prosecution. In support of his contention, he has relied on the following decisions:- in case of Syed Akbar v. State of Karnataka, it has been held that "criminal Trial- appreciation of evidence-Res ipsa loquitur application of this maxim from the field of tort law to criminal law in the face of the evidence Act, 1872 discussed-Presumptions of fact and law-Distinction between-Burden of proving negligence beyond reasonable doubt in criminal cases-Negligence, meaning and ingredients of Tort Law-Penal Code, 1860, Sections 304-A, 279, 280, 282, 283, 284,285,286,287,288,289,336,337 and 129, 137, 223, 225-A, 269-Evidence Act, 1872, sections 4,114,79 to 85,89 and 105". There is no quarrel with regard to the law or principles laid down by the Hon ble Supreme Court. But considering the evidence of the prosecution witnesses, the width of the road etc. , it could be said that the principles of rcs- ipsa-loquitur is very much applicable to the case on hand. In this behalf, the Apex Court held in the decision reported in case of mohammed Aynuddin alias Miyam v. State of andhra Pradesh, that the principles of res-ipsa-loquitur is only a rule of evidence to determine the onus of proof. In case of Shivaputra Malmdevappa Hadapad v. State of Mysore, wherein, it has been held that "there is no presumption that it was due to the rash and negligent driving of the accused that vehicle goes out of the road. It can happen under a variety of circumstances. Merely because the prosecution proves that the car left the road, it does not necessarily follow the accused drove the vehicle rashly and negligently. It can happen under a variety of circumstances. Merely because the prosecution proves that the car left the road, it does not necessarily follow the accused drove the vehicle rashly and negligently. There may be innumerable circumstances such as defect in the mechanism that might have resulted in the car going out of the road. The onus of proving rash and negligent act is always on the prosecution. " in AIR 1966 Madras 357, wherein it has been held that "rash and negligent driving- burden of proof-Presumption thatan accused is innocent ill guilt established-Responsibility is of prosecution to establish guilt of accused beyond reasonable doubt and to make out necessary ingredients byadducing evidence- section 304-A is no exception to these general principles-Merely because prosecution proves that car left road or met accident there can be no presumption of rash and negligent driving requiring accused to prove that he was not driving vehicle in rash and negligent manner". In case of Veerabhadrappa v. State of karnataka, it has been held that "accident- whether as a result of rash and negligent driving-Conviction based on testimony of witnesses not present during the accident- eye-witnesses not deposing about rashness or negligence-Non examination of Motor vehicles Inspector-Conviction and sentence passed by Courts set aside". In case of The State of Maharashtra v. Contam, wherein it has been held that "in the case of mo tor vehicle accidents there may sometimes be what may be called a pure error of judgment on the part of the driver which does not amount to rashness or negligence. Having regard to width of the s. T. bus, the possibility of a pure error of judgment on the part of the accused in judging the space either on the left side or the right side, as he entered the bridge, could not be ruled out. If he misjudged the space on the left side, and in so doing went a little too far on the right side, once the wheels of the bus struck one guard stone after another on the right side, he would certainly lose control of the bus, particularly if at that time one of the tyres of the bus had burst, as the evidence unmistakably showed. In that view of the matter the accused could not be convicted". In that view of the matter the accused could not be convicted". In case of Indramani Jena v. State of Orissa, it has been held that "where an old man was moving ahead of the bullock cart, the accused should have been very cautiously in driving the same but instead of taking any precaution he drove the cart recklessly when the deceased was hardly 5 to 6 cubits away with the result that the front portion of the cart dashed against the deceased. The driving was reckless, because the accused could not control the bullock cart after the same dashed against the deceased and for that the left wheel of the cart ran over the deceased. Under these circumstances, the conclusion was irresistible that the driving of the bullock cartby the accused which ultimately resulted in the death of the deceased was both culpably rash and culpably negligent. " ( 8 ) ON the other hand, learned H. C. G. P. submitted that the injured witnesses are the best witnesses to speak about the manner in which the accident took place and as to how the vehicle was driven by the revision petitioner particularly. The injured persons namely, P. Ws. 4,6,7,8 and 9 are the inmates of the bus and they were sitting on the right side 3rd and 4th row of the bus. Their evidence would show that because of the rash and negligent driving the bus went to the extreme right side and it was capsized and therefore, learned Sessions Judge had rightly drawn the inference and the principles of res-ipsa-loqiiitur. Further it is submitted that on account of rash and negligent driving about 10 persons were injured and about two persons died, one person at the spot and one person on the way to the hospital. Further, it is contended that P. W. 1 is not an eye witness but he lodged a complaint after coming to know about the accidental death of his daughter Geetha. Therefore, admissions made by him if any in the cross-examination will not take away the case of the prosecution. Further it is contended that the Ex. P-6 is and imv report but the Inspector of motor vehicle has not been examined since it is a public document and the Court can rely on the contents of Ex. P-6. Therefore, admissions made by him if any in the cross-examination will not take away the case of the prosecution. Further it is contended that the Ex. P-6 is and imv report but the Inspector of motor vehicle has not been examined since it is a public document and the Court can rely on the contents of Ex. P-6. Further it is submitted that the suggestions made to the injured witnesses in the cross-examination would clearly show that at the particular point of time, a cow came across the road and in order to avoid the accident, he took the vehicle to the extreme right side and hence the burden shifts on him to prove the circumstances on which the vehicle in question met with an accident. Therefore, the findings recorded by the trial court in convicting the revision petitioner is in accordance with law and therefore, the same does not call for interference and the revision petition is liable to be dismissed. ( 9 ) IT is an undisputed fact that on the particular date and time i. e. , 10-7-2000. (sic) 16-4-1997 revision petitioner was the driver of the mini bus. On the day of the accident, the mini bus was heavily loaded carrying about 30 to 35 passengers in it. Around 9 a. m. the said mini bus was going near dommasandra Bangalore Road, the revision petitioner failed to take precautions while driving and on account of the rash and negligent driving, he lost the control over the vehicle and went to the extreme right side and thereafter the mini bus was turtled. I have carefully reviewed the entire materials placed on record by the respondent. I am of the view that the revision petitioner has failed to take little care and caution while driving the mini bus. It is a well settled law that no case is free from minor omissions and contradictions. The entire gist of the evidence of prosecution witnesses is to be taken into consideration in coming to the just conclusion. The revision petitioner-accused was examined under 313 statement and he has not made any explanation about the cause of accident. Of course, driving of the vehicle by the driver is to be taken into consideration. The entire gist of the evidence of prosecution witnesses is to be taken into consideration in coming to the just conclusion. The revision petitioner-accused was examined under 313 statement and he has not made any explanation about the cause of accident. Of course, driving of the vehicle by the driver is to be taken into consideration. It is stated that at the time of the accident, a cow tried to cross the road and in order to avoid the same, the driver was forced to take the vehicle to the extreme right and the same has been denied by most of the witnesses. Therefore, considering the oral and documentary evidence placed on record, it could be said that the revision petitioner was rash and negligent in driving the vehicle. Consequently, the vehicle turtled and two persons died, one at the spot and another on the way to the hospital and about 10 persons were injured. In case of Veerabhadrappa v. State of Karnataka (supra), it has been held that non-examination of Motor Vehicle inspector is not fatal to the case of the prosecution. Ex. P-6 is public document and at the time of marking the same through the i. O. the revision petitioner could not raise his little finger. Ex. P-6 report of the Motor Vehicle inspector discloses that the accident was not due to any mechanical defects. When once the revision petitioner has not disputed about the place of the accident and about the mini bus going to the extreme right side and then it turned turtled, then the burden of proving shifts on the driver. Under Section 105 of the evidence Act, the driver is expected to prove the same. Therefore, I do not find any good reasons to interfere with the order under revision passed by the Court below. ( 10 ) AS far as the sentence is concerned, learned Sessions Judge modified the order of sentence passed by the trial Court. Of course, the offence under Section 279 is a technical offence and it merges with the major offences like 304-A IPC therefore, separate sentence awarded by the Courts below is incorrect and the same is liable to be set aside. Of course, the offence under Section 279 is a technical offence and it merges with the major offences like 304-A IPC therefore, separate sentence awarded by the Courts below is incorrect and the same is liable to be set aside. As far as the offence under Sections 304-A, 337 and 338 are concerned, awarding of sentence for an offence under Section 337 IPC is excessive and so also, awarding of sentence for an offence under Section 337 IPC is excessive and so also, awarding of sentence for an offence under Section 304-A to an extent of one year is excessive. Therefore, considering the peculiar facts and circumstances of the case, the order of sentence passed by the courts below are liable to be modified. ( 11 ) ACCORDINGLY, the revision petition is partly allowed. The order of sentence passed by the Courts below for an offence punishable under Section 279 of IPC is set aside and the sentence passed for the offences punishable under Sections 337 an4338ipc are modified and the revision petitioner is sentenced to undergo S. I. for 3 months and to pay fine of rs. 1,000/- in default to pay the fine amount, he shall undergo S. I. for one month. As far as the offence under Section 304-A of IPC is concerned, he shall undergo S. I. for a period of six months and to pay fine of Rs. 5,000/- i. e. , to undergo S. I. for 3 months. The sentences to run concurrently. After depositing the fine amount, a sum of Rs. 3,000/ - each shall be paid to the legal heirs of the deceased Geetha and Ratna.