ORDER 1. The petitioner stood charged and convicted by the learned Judicial Magistrate No.VII, Coimbatore in C.C. No. 436 of 2006 for the offence punishable under Section 304-A of IPC and Section 181 of Motor Vehicles Act and sentenced to undergo simple imprisonment for three months with fine of Rs.2,000/-, in default to undergo simple imprisonment for a period of two weeks for the offence under Section 304-A of IPC and sentenced to undergo simple imprisonment for a period of two weeks with fine of Rs.500/-, in default to undergo simple imprisonment of one week for the offence under Section 181 of Motor Vehicles Act. Aggrieved over the judgment of conviction, the petitioner filed Criminal Appeal No. 436 of 2006 before the learned District and Sessions Judge, Coimbatore and the same was also dismissed on 18.01.2007. 2. The case of the prosecution is that on 08.09.2005, the Head Constable attached to the respondent police received information from C.M.C. Hospital, Coimbatore that they have received a patient with severe injuries on his head. Based on such information, the head constable attached to the respondent police rushed to the hospital. In the meantime PW1 received a phone call stating that one Veluchamy, known to him, had sustained injuries while he was riding the two wheeler being registration No. TN 39 E 8566 after the two wheeler was hit by a three wheeler bearing Registration No. TN 37 AH 9525 at Bodipalayam Road. Based on such information, PW1 informed the relatives of the said Veluchamy and he also rushed to the hospital, where his complaint was reduced into writing and marked as Ex.P1. Based on such complaint, the case in Crime No. 281 of 2005 was registered for the offences under Section 279 and 337 of IPC. On 20.09.2005, the said Veluchamy succumbed to the injuries and died, therefore the case was altered into one under Section 304 (A) of IPC. After investigation, the respondent police filed the charge sheet against the accused for the offences punishable under Sections 279, 394 (A) read with Section 3 of the Motor Vehicles Act. 3. The learned counsel for the petitioner would contend that there is no eye witnesses in this case or there is no evidence to show that it is the accused who had driven the vehicle in a rash and negligent manner which caused the death of the deceased. 3. The learned counsel for the petitioner would contend that there is no eye witnesses in this case or there is no evidence to show that it is the accused who had driven the vehicle in a rash and negligent manner which caused the death of the deceased. PW1 himself is not an eye witness and he only received a phone call from some one who informed him that Veluchamy had sustained injuries in a road accident. Pws 2 to 4 are persons who have reached the scene of occurrence after the accident and therefore, their testimony will not in any way lend support to the case of the prosecution. In the absence of any credible evidence to show that the petitioner was guilty of rash and negligent driving or in any manner contributed to the death of the deceased, he is entitled for acquittal. In this context, the learned counsel for the petitioner relied on the decision of the Honourable Supreme Court reported in (Mohammed Aynuddin @ Miyam vs. State of Andhra Pradesh) (2000) 7 Supreme Court Cases 72 to contend that death of the deceased by itself cannot be taken into consideration to convict and sentence the petitioner in the absence of any evidence to show the negligence on his part. 4. The learned Government Advocate appearing for the respondent would contend that both the courts below had taken into consideration the report of the Motor Vehicle Inspector to show that severe damages have been caused to the offending vehicles, which would indicate the rashness and negligence with which the petitioner had driven the vehicle. Further, PW9 was examined as a witness on the side of the prosecution, who was travelling in the three wheeler driven by the petitioner/accused, at the time of accident. PW9 in his evidence has stated about the manner in which the accident had occurred. Therefore, there are enough evidence available on record to prove the guilt of the petitioner accused and therefore the courts below are justified in convicting and sentencing the petitioner, hence, he prayed for dismissal of the Criminal Revision Case. 5. I heard the counsel for both sides and perused the materials available on record. Therefore, there are enough evidence available on record to prove the guilt of the petitioner accused and therefore the courts below are justified in convicting and sentencing the petitioner, hence, he prayed for dismissal of the Criminal Revision Case. 5. I heard the counsel for both sides and perused the materials available on record. The point for consideration in this Criminal Revision Case is whether the petitioner/accused had driven the three wheeler in a rash and negligent manner and was in any way responsible for the death of the deceased Veluchamy. 6. The prosecution heavily relied on the evidence of PW9, who is stated to have travelled in the vehicle driven by the petitioner/accused at the time of the accident. The evidence of PW9 will not be of any use for the prosecution to prove the guilt against the petitioner inasmuch as he only deposed this in his chief-examination:- “TAMIL” 7. According to PW9, the deceased died on the spot, which is factually incorrect inasmuch as the deceased died on 20.09.2005 i.e., after 11 days from the date of accident on 08.09.2005. However, PW9 further states that immediately after the accident, the deceased was taken to Government Hospital, Coimbatore where he was admitted. Further, PW9 did not say that the petitioner/accused had driven the vehicle in a rash and negligent manner which caused the death of the deceased. In fact, PW9 only says that the vehicle came in the opposite direction dashed against the vehicle in which he was travelling. Even in the examination, there was no suggestion put to PW9 as to whether the vehicle which was driven by the petitioner/accused was driven in a rash and negligent manner and it resulted in the death of the deceased. Therefore, based on the inconsistent testimony of PW9, it is unsafe to base a conviction against the petitioner/accused. 8. In the decision of the Honourable Supreme Court reported in (Mohammed Aynuddin @ Miyam vs. State of Andhra Pradesh) (2000) 7 Supreme Court Cases 72, which was relied on by the counsel for the petitioner, it was categorically held that in the absence of any evidence to show that the driver of the offending vehicle had driven it in a rash and negligent driving or in any way responsible for the accident, the conviction and sentence imposed on him are unsustainable. It was further held that negligent of the driver of the offending vehicle cannot always be presumed to be a rash and negligent one. In para-7 of the said decision, it was held as follows:- "7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus, no presumption of negligence can be drawn against the driver of the bus." 9. In the present case, as rightly pointed out by the counsel for the petitioner, there is no credible evidence to show that it is the petitioner who had driven the three wheeler – Minidor Auto in a rash and negligent manner which caused the death of the deceased. PW1 and 3 have reached the accident spot after the accident. PW2 is a hearsay witness. PW4, who is the wife of the deceased, also reached the accident spot after the accident on hearing the same through PW1. PW5 is the Motor Vehicle Inspector who inspected the vehicles and filed his report. PW6 is the Doctor who treated the deceased immediately after he was admitted in the hospital. PW7 and 8 are mahazar witnesses. PW10 is the owner of the two wheeler, which he lent it to the deceased on his request. PW11 is the Head Constable and PW12 is the investigation officer. Therefore, except PW9, there is no direct evidence who have witnessed the accident and even PW9 did not support the case of the prosecution. The Court below, only on surmises that the vehicle could have been driven by the petitioner in a rash and negligent manner, had convicted and sentenced the petitioner. Merely because the vehicle involved in an accident and which resulted in the death of the deceased, the petitioner cannot be fastened with any criminal liability. Therefore, the conviction and sentence imposed on the petitioner for the offence under Section 304-A of IPC has to be set aside and accordingly it is set aside. 10. Merely because the vehicle involved in an accident and which resulted in the death of the deceased, the petitioner cannot be fastened with any criminal liability. Therefore, the conviction and sentence imposed on the petitioner for the offence under Section 304-A of IPC has to be set aside and accordingly it is set aside. 10. The petitioner was also charged for the offence punishable under Section 181 (3) of the Motor Vehicles Act for having driven the vehicle without a valid licence at the time of accident, for which he was sentenced to undergo imprisonment for two weeks with fine of Rs.500/-, in default to undergo simple imprisonment for one week. The learned counsel for the petitioner submitted that the petitioner had already paid the fine amount and also underwent imprisonment, by relying on the order dated 08.02.2007 passed by this Court in MP No. 1 of 2007 in Crl.R.C. No. 182 of 2007 suspending the sentence imposed on the petitioner and granting him bail. Therefore the learned counsel for the petitioner prayed this Court to hold that the sentence already undergone by the petitioner is sufficient for the offence under Section 181 of the Motor Vehicles Act. 11. Considering the submission of the counsel for the petitioner and the fact that the major offence for which the petitioner was tried namely 304-A of IPC has not been proved by the prosecution and the petitioner also undergone sentence as could be evident from the order dated 08.02.2007 passed by this Court, I hold that the conviction imposed on the petitioner for the offence under Section 181 of Motor Vehicles Act is valid, however, the sentence imposed on the petitioner for the offence under Section 181 of Motor Vehicles Act can be reduced to the period already undergone by him. Accordingly, the sentence imposed on the petitioner for the offence under Section 181 of Motor Vehicles Act is reduced to the period already undergone by him 12. With the above modification in sentence, the Criminal Revision Case is partly allowed.