Judgment :- Aggrieved by the Judgment dated 19.02.2004 in Criminal Appeal No.159 of 2003 passed by the learned Metropolitan Sessions Judge, Hyderabad whereby and whereunder the conviction and sentence, dated 21.03.2003, passed by the VI Metropolitan Magistrate, Hyderabad, in C.C.No.456 of 2001 convicting the petitioner for the offence under Section 304-A of Indian Penal Code and sentencing him to undergo rigorous imprisonment for one year has been confirmed, the petitioner filed this Revision Case. The petitioner herein shall be referred to as 'the accused/driver' hereinafter for the sake of convenience. The grave men of the charge against the accused is that on 28.11.2000 at about 8.00 a.m., the accused while driving the R.T.C. Bus bearing No.AP-10Z- 3903, while proceeding from Koti towards Uppal side, had driven the bus in a rash and negligent manner at high speed and hit the bicycle driven by the deceased Vinod Kumar (hereinafter shall be referred to as 'the deceased') in front of Patel and Company in Rahatnagar at Amberpet, Hyderabad. The brief facts from the evidence let in can be stated as follows: PW.1 - A.Ravinder who is a Painter by profession is the resident of Amberpet. On 28.11.2000 at about 8.30 a.m., he went to the Patel and Company shop for purchase of pipes, but the shop was not opened. He waited there to purchase the pipes. In the meanwhile, the deceased was proceeding on his bicycle towards Uppal side and the offending bus being driven by the accused came behind the cyclist and hit the vehicle. The bus was being driven at high speed. The deceased sustained head injury and died on the spot. Then he proceeded to the Police Station and presented Ex.P1 report. PW.8 M.Narayana, who was working as Sub Inspector of Police, Amberpet Police Station, received Ex.P1 report from PW.1 and on the basis of it, he registered a case in Cr.No.360 of 2000 for the offence punishable under Section 304-A IPC and issued First Information Report. Ex.P6 is the FIR. Then he proceeded to the scene of offence by securing the presence of PW.4 - T.Yadaiah and one R.Yadaiah (LW.8) and observed the scene of offence, prepared an observation panchanama of the scene of offence, drafted rough sketch and summoned the photographer and got taken the photos of the scene of offence. Ex.P6 is the FIR. Then he proceeded to the scene of offence by securing the presence of PW.4 - T.Yadaiah and one R.Yadaiah (LW.8) and observed the scene of offence, prepared an observation panchanama of the scene of offence, drafted rough sketch and summoned the photographer and got taken the photos of the scene of offence. Then he shifted the dead body of the deceased to the Osmania Government Hospital (for short 'OGH') for conducting inquest over the same in the presence of PW.5 and one Jangaiah. Then he recorded the statements of PWs.1 to 3 and others. He arrested the accused on 29.11.2000 and seized S.R. Ex.P7 along with lock sheet. PW.2 - M.Pochaiah is the father of the deceased. PW.1 informed PW.2 about the accident and then he proceeded to the scene of offence and found the dead body of the deceased. PW.3 - K.Shankar is a worker in Patel and Company. He was present in the shop at the time of accident. According to him, the R.T.C. bus came from Amberpet side and while proceeding towards Ramantapur side, hit the cyclist and that the accused is the driver of the said bus, who had driven the bus speedily. PW.4 - T.Yadaiah is the mediator in whose presence, Police observed the scene of offence and prepared rough sketch. PW.5 - P.Raju is a panch witness at the time of inquest held over the dead body of the deceased at O.G.H. PW.6 - Dr.B.Jagan Mohan is the doctor who conducted Post Mortem Examination and noticed eight ante martem injuries on the dead body of the deceased and opined that the cause of death to his best of knowledge is due to head injury. Ex.P5 is the Post Mortem Examination report. PW.7 - K.Ravi is the Sub Inspector of Police, who arrested the accused. After completing his investigation, PW.8 - M.Narayana, Sub Inspector of Police laid charge sheet against the accused. The prosecution, in order to prove its case, examined PWs.1 to 8 and got marked Exs.P1 to P7. The accused did not examine any witnesses on his behalf and no documents have been marked on his behalf. Learned VI Metropolitan Magistrate, Hyderabad, believed the version of PWs.1 and 3 and held that their evidence shows that the accused had driven the bus in a rash and negligent manner and committed the offence punishable under Section 304-A IPC. The accused did not examine any witnesses on his behalf and no documents have been marked on his behalf. Learned VI Metropolitan Magistrate, Hyderabad, believed the version of PWs.1 and 3 and held that their evidence shows that the accused had driven the bus in a rash and negligent manner and committed the offence punishable under Section 304-A IPC. It was also observed that observing the condition of the road, the driver should have reduced the speed of the vehicle while passing on such bad conditioned road. The accused was sentenced to undergo rigorous imprisonment for one year. On appeal, learned Sessions Judge has confirmed the same observing that the evidence of PWs.1 and 3 is not disturbed in any manner in their cross-examination and there are no material contradictions or omissions elicited in their evidence and that their evidence proves that the bus came at high speed in a rash and negligent manner and dashed against the deceased from behind. Learned Sessions Judge further observed that the accused had not taken any plea that the deceased suddenly crossed the road and that there was contributory negligence on the part of the deceased. Learned counsel for the accused vehemently argued that there are no eye witnesses to the actual occurrence of the accident and that PW.1 was observing the pipes shown by one Shankar and therefore, he was facing towards West as the shop was facing towards East and therefore, his evidence that the bus was driven at high speed cannot be accepted on its face value. She has also submitted that PW.3 during cross-examination admitted that he witnessed after occurring of the accident and therefore, even PW.3 cannot be treated as a witness. Her main submission is that admittedly, the road was under repair and that the bus was proceeding on the right direction in the middle of the road and in view of the half furnished road, there was no possibility for the driver to drive the bus at high speed. It is also her submission that it is not clear, how the deceased suddenly came in front of the bus and how the bus hit the deceased. Therefore, it cannot be held that the accused had driven the bus in a rash and negligent manner. It is also her submission that it is not clear, how the deceased suddenly came in front of the bus and how the bus hit the deceased. Therefore, it cannot be held that the accused had driven the bus in a rash and negligent manner. It is also her submission that the very fact that bus was stopped only at a distance of ten feet from the place of accident, clinchingly establishes that the bus was not being driven at high speed at the time of accident. It is also her submission that mere driving the vehicle at high speed is not sufficient and that the prosecution must show that the vehicle was driven in a rash and negligent manner at high speed. She has relied on the decision In Markapudi Krishna Rao V. State Of A.P. 2005 (2) ALD (Crl.) 670 (AP) wherein it was held as under: "In accident cases top priority is to be given to the circumstantial evidence and the oral evidence is to be tested with reference to the circumstantial evidence." She has also relied on the decision in Yegitila Pandu V. State Of A.P. 2003 (2) ALD (Crl.) 836 (AP) wherein it was held as under: "Mere fact of collusion of the vehicles do not prove the rash and negligent driving of the driver and that there should be evidence with regard to the speed of the bus or to the effect that it was going in a wrong direction." The only point that arises for consideration is whether the prosecution has established that the accused had driven the bus in a rash and negligent manner and committed the alleged offence. In the case between State of Kerala V. Puttumana Illath Jathavedan Namboodiri, JT 1999 (1) SC 456 it was observed as under: "When there are glaring features and it appears that injustice has been done, the Court can re-appreciate the evidence. Rashness and negligence are not the same thing. Mere negligence cannot be construed to mean rashness. There are degrees of negligence and rashness and in order to amount criminal rashness or criminal negligence, one must find that the rashness has been such a degree as to amount to taking hazard, that hazard was of such a degree that the injury was most likely to be occasioned thereby. The prosecution must properly prove the rash and negligent act of the petitioner/accused. The prosecution must properly prove the rash and negligent act of the petitioner/accused. Simply lack of care, which constitutes civil liability is not enough to prove a charge of homicide by negligence. For the purpose of criminal law, there are degrees of negligence and a very high degree of negligence is required to prove before a charge under Section 304-A IPC is established. A definite finding should be recorded by the learned Judge as to whether the version of the witness regarding high speed and negligent driving of the petitioner is acceptable to him or not. In the absence of such a definite finding no conviction under Section 304-A IPC can be maintained. Therefore, the prosecution has to establish the rash and negligent driving of the driver and that the rashness has been such a degree as to amount to taking hazard, that hazard was of such a degree that the injury was most likely to be occasioned thereby. In the case between State Of Kerala V. Ramakrishna Nadar Damodaran 1970 Madras Law Journal Reports (Criminal) 854 it was held as follows: "Rashness or negligence contemplated by the two Sections is criminal rashness or negligence. The definition between negligence simplicitor or criminal negligence is that in the former, their simple lack of care, which may constitute a civil liability but by itself without mens rea, it may not constitute criminal one." Therefore, before a conviction can be had under Section 304-A IPC, a very high degree of negligence must be found, the negligence, which amounts to recklessness or utter interference to consequences and not mere negligence, which refers to Syad Akbar V. State Of Karnataka AIR 1979 SC 1848 . Coming to the facts of this case, there is no doubt that the deceased sustained head injury and died at the spot. The evidence of the doctor, who conducted Post Mortem Examination, proves the same. It is also clear that the condition of the road was bad. PW.8 - Investigating Officer himself stated that the road at the scene of offence is having 80 feet width divided by a road divider, and the road where the incident had occurred was covered with 20 feet of finished road and the rest is unfinished road. He has also admitted that the body of the deceased was lying on the unfinished road at a distance of 15 feet from the footboard. He has also admitted that the body of the deceased was lying on the unfinished road at a distance of 15 feet from the footboard. He has also deposed that the bus was at a distance of 10 feet from the dead body of the deceased. It is also his case that the bus was standing at the gap of three or four feet from the road divider. Ex.P3 is the rough sketch. Ex.P3 clearly shows that the bus was proceeding on the half finished road. Therefore, there is nothing on record to show that the bus was moved towards unfinished road or towards the footpath. Admittedly, the dead body was at a distance of 15 feet from the footpath touching the half finished road. It appears that the accident occurred while the deceased was proceeding along the half finished road. It appears that the accident also occurred on the half finished road. Now, it has to be seen whether the driver had driven the bus at high speed in a rash and negligent manner. Admittedly, the prosecution case is that the bus was stopped at a distance of 10 feet from the dead body. When the bus was stopped only at a distance of 10 feet from the dead body, it clearly shows that the bus was not being driven at high speed. If at all the bus was being driven by the accused at high speed, he could not control the bus within 10 feet and there was no possibility of stopping the bus at a distance of 10 feet. This circumstance itself shows that the bus was not being driven at high speed. Moreover, as per the condition of the road, as admitted by the investigating officer, there was no possibility for the driver to drive the bus at high speed in a rash and negligent manner. Now, it has to be seen whether the version of PWs.1 and 3 can be accepted to convict the accused for the offence under Section 304-A IPC. No doubt, the bus hit the cyclist and the cyclist sustained head injury and died on the spot. Now, it has to be seen. How the accident occurred and whether the cyclist suddenly came before the bus or not is to be examined. PW.1 claims to be an eye witness. No doubt, the bus hit the cyclist and the cyclist sustained head injury and died on the spot. Now, it has to be seen. How the accident occurred and whether the cyclist suddenly came before the bus or not is to be examined. PW.1 claims to be an eye witness. According to PW.1, he went to the shop that the shop was not opened and that he was waiting outside the shop. However, in the cross-examination, PW.1 admitted that he was observing the pipes shown by one Shankar. That means, at the time of accident, he was observing the pipes. Admittedly, the shop of PW.3 is facing towards road i.e., towards East. Therefore, when PW.1 was observing the pipes shown by one Shankar, his face must be towards the West i.e., towards the worker in the shop, therein showing the pipes. Therefore, it appears that there was no possibility for PW.1 to observe the accident, when he was observing the pipes shown by One Shankar at the time of accident. PW.3, who is another eye witness, deposed that he was in the shop at that time and showing pipes to the customers. However, PW.3 categorically deposed that after happening of the accident, he witnessed the same. Thus, it appears that after the bus hit the vehicle of the deceased, PWs.1 and 3 turned towards the road and witnessed the accident. Therefore, it appears that there was no possibility for them to observe whether the bus was being driven at high speed or not. A careful reading of the evidence of PWs.1 and 3 shows that they did not allege that the accused was driving the bus in a rash and negligent manner. Of course, both of them stated that the bus was being driven speedily. As discussed earlier, since the bus was stopped only at a distance of 10 feet from the place of accident, it appears that the bus was in all probabilities not driven at high speed at the time of accident. Thus, there is no evidence to say, how the cycle came in contact with the us. Whether the cyclist slipped and came before the bus or whether the bus hit the cyclist is not clear from the evidence. In view of the above discussion, it appears that no reliance can be placed on the evidence of PWs.1 and 3. Thus, there is no evidence to say, how the cycle came in contact with the us. Whether the cyclist slipped and came before the bus or whether the bus hit the cyclist is not clear from the evidence. In view of the above discussion, it appears that no reliance can be placed on the evidence of PWs.1 and 3. The observance of the learned Sessions Judge that PWs.1 and 3, independent witnesses, have justified that the bus came at high speed in a rash and negligent manner is not based on record. PWs.1 and 3 never stated that the bus was being driven in a rash and negligent manner. Thus, the finding of the Courts below appears to be not based on record. No conviction can be placed on mere assumptions and presumptions. There must be legal evidence to convict an accused and the burden lies on the prosecution to prove the degree of criminal negligence of the accused to show that he had driven the vehicle in a rash and negligent manner. It may be a fact that by a mere fall on the road before the bus, the deceased might have sustained such grievous injuries. Therefore, the possibility of the deceased just falling in front of the bus cannot be ruled out. A careful reading of the evidence gives an impression that the accused is entitled for the benefit of reasonable doubt and the prosecution failed to prove its case. In view of the above discussion, I hold that the findings of the Courts below are not based on record and, therefore, they have to be set aside. Accordingly, the conviction and sentence passed by the Courts below are set aside and the Revision is allowed accordingly.