Judgment Dharam Chand Chaudhary, J. Accused Joginder Singh has preferred this revision petition against the judgment dated 17.9.2005, passed by learned Addl. Sessions Judge, Solan circuit Court at Nalagarh in criminal appeal No.31-NL/10 of 2000 concurring thereby with the findings of conviction and sentence recorded against the petitioner by learned Sub Divisional Judicial Magistrate, Nalagarh, District Solan on the ground inter alia that both the courts below have based the findings of conviction on conjecture and surmises and without appreciating the evidence of eye witnesses PW-4 and PW-7 Bachna Ram in its right perspective. The version of PW-7 Bachna Ram that the deceased was playing and hanging with pole and as a result thereof the same tilted in one side and he fell down in the river on stones and thereby suffered multiple injuries leading to his death has not been considered at all. PW-4 Ram Krishan could have not been relied upon in view of the material contradictions in his statement. The lower appellate court has wrongly concluded that it was for the accused to have explained as to how the injuries on the person of the deceased occurred. Also that Dr. (Mrs.) K. Nath (PW11) has no where stated that the nature of injuries on the person of the deceased cannot be caused by way of fall, however, lower appellate court has erroneously concluded so in the impugned judgment. The provisions contained under Sections 279 and 304-A IPC were misconstrued. There being no evidence cogent and reliable, the accused could have not been held responsible for the accident in question. The statements of material prosecution witnesses were recorded after a lapse of one month. 2. The allegations against the accused in a nut shell are that on 9.7.1997, a HRTC Nalagarh to Kiratpur bound Bus bearing No. HIA 6599 was on its way to Kiratpur. The accused was at the wheel of the bus. On that day the inauguration of the bridge at village Kalyanpur was scheduled to be held around 12.00-1.00 p.m. The bus when reached on the bridge hit deceased Rajinder Singh due to rash and negligent driving, who was standing on his own side with railing of the bridge. As a result of the strike the deceased fell down and he received injuries on his person. Injured was taken to hospital at Nalagarh in that very bus where he scummed to the injuries and died. As a result of the strike the deceased fell down and he received injuries on his person. Injured was taken to hospital at Nalagarh in that very bus where he scummed to the injuries and died. 3. PW-3 Madan Lal, a labourer working on the spot was deputed to inform the relatives of the deceased. He accordingly informed Shri Tara Singh PW-1, brother-in-law (Sadu) of the father of deceased. Said Tara Singh has reported the matter to the police of Police Station, Nalagarh where FIR Ex.PW-1/A was registered by PW-12, Sohan Lal, the then Moharrer HC Nalagarh. 4. The investigation was initially entrusted to PW-15 HC Jagpal, who went to hospital at Nalagarh and get the dead body photographed and also got conducted the post mortem. This witness had also taken into possession the bus along with its documents. The case was investigated partly by PW-12 HC Kirpa Ram. 5. On completion of investigation report under Section 173 Cr.P.C. was filed against the accused in the court of Sub Divisional Judicial Magistrate, Nalagarh. Having gone through the report and the documents annexed there with and also the submissions made on behalf of the prosecution and learned defence counsel, a case under Sections 279 and 304-A IPC was prima facie found to have been made out. Notice of accusation was accordingly put to the accused, however, only under Section 279 IPC and not under Section 304-A IPC. 6. In order to sustain charge against the accused-petitioner, the prosecution has led evidence comprising oral as well as documentary. The star witnesses were PW-7 Bachana Ram and PW-4 Ram Krishan, the alleged eye witnesses to the accident. PW-3 Madan Lal though also stated to be a witness of the spot; however, turned hostile to the prosecution. The remaining witnesses Shri Tara Singh PW-1, Shri Dhani Ram, PW-2 and Shri Pyare Lal, PW-5 are maternal uncles and maternal grand father, respectively of the deceased were closely related and the evidence as has come on record by way of their respective testimonies otherwise also could have been used as link evidence because none of them was present on the spot at the time of accident. 7. PW-6 Hazara Singh is the father of the deceased, who was also not present on the spot. 7. PW-6 Hazara Singh is the father of the deceased, who was also not present on the spot. PW-8 Gurmail Singh is head mechanic in HRTC, who was associated for the purpose of mechanical check up of the bus and to prove the report Ex.PW-8/A. PW-9, Hari Ram, Adda Incharge, HRTC, Nalagarh has handed over the documents of the bus and also the duty roster to the I.O. PW-11 Dr.(Mrs.) K. Nath was posted as medical officer in CHC Nalagarh, who conducted autopsy on the dead body and prepared the post mortem report Ex.PW-11/A. Remaining witnesses, PW-10 Rani Bindu, PW-12 HC Kirpa Ram, PW-15 HC Jagpal are police officer/officials, who had conducted investigation in this case. 8. Learned Trial Magistrate having gone through the evidence produced on behalf of the prosecution has come to the conclusion that the prosecution has successfully proved that the accident leading to the death of Rajinder Kumar occurred due to rash and negligent driving on the part of the accused. He was thus convicted under Sections 279 and 304-A and sentenced to undergo rigorous imprisonment for a period of six months and also to pay a fine of Rs.1,000/- under Section 279 IPC and rigorous imprisonment for a period of one year and to pay a fine of Rs.2,000/- under Section 304-A IPC. 9. Learned Additional Sessions Judge, in appeal preferred against the findings of conviction and sentence so recorded by learned trial court has affirmed the same and dismissed the appeal vide judgment which is under challenge in this petition before this Court. 10. The present being a case of concurrent findings, the scope of interference in the exercise of powers vested in this court under Section 397 and 401 of Code of Criminal Procedure though is limited, however, if any finding recorded is not based upon proper appreciation of evidence and rather result of hypotheses, surmises and conjecture can be interfered with being perverse. Learned counsel representing the petitioner has placed reliance on the judgment of the apex Court in Krishnan & Another vs. Krishnaveni & Another (1997) 4 SCC 241 , in which, it was held as under:- “In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of S. 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under S. 482 of the Code and as it is paramount power of continuous superintendence of the High Court under S. 483, the High is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the Courts below. It remitted the case to the Magistrate for decision on merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power u/S. 397(1) read with S. 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal.” 11. Reliance has also been placed on the judgment of this Court in Dharam Pal & another vs. State of H.P., Latest HLJ 2009 (HP) 743, in which it was held as under:- “12. The learned Additional Advocate General has relied State of Karnataka vs. Appa Balu Ingale and others, AIR 1993 S.C. 1126 , in support of his contention that ordinarily it is not open for the High Court to interfere with the concurrent findings of the courts below specially by reappreciating the evidence in its revisional jurisdiction. In Krishnan and another vs. Krishnaveni and another, 1997 (4) S.C.C. 241 , the Apex Court has held that when the High Court notices that there has been violation of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order. ……..” 12. ……..” 12. Reliance has also been placed on the judgment of this Court in Amandeep Singh & others versus State of H.P., Latest HLJ 2010 (HP) 1190, in which it was held as under:- “I find from the judgment of learned Sessions Judge that he has based the conviction on the evidence of PW1 Chaman Lal, who admits the recovery of two gunny bags containing Commando XXX Rum and Bagpiper whisky. am not going into other detail of the case. In revisional powers, it is well settled that the evidence cannot be re-appreciated but that does not stop the Court from ascertaining any perverse findings of the Courts below.” 13. It is in the above legal background, challenge to the impugned judgment laid in the present revision petition has to be adjudicated upon. 14. It is well settled at this state that sine quo non for recording findings of conviction against an offender booked under Sections 279 and 304-A IPC is commission of an act by the offender in a manner so rash or negligent as to endanger human lives and personal safety of others and it is such rash or negligent act alone responsible in causing death of someone. Thus in the case in hand, the onus to prove upon the prosecution is that the accused was driving the bus in a rash and negligent manner and it is on account of such rash and negligent driving attributed to him alone, the bus struck against the deceased and it is on account of the injuries alone received in the accident, he died. Thus, there should be direct nexus between the act so committed rashly or negligently and danger caused thereby to the lives of others or in the event of fatal accident, the death of the victim. 15. As noticed supra, the star prosecution witnesses are PW-4 Ram Krishan and PW-7 Bachna Ram. They both have been associated in the investigation of the case on 4.8.1997, the day when their statements under Section 161 Cr.P.C. were recorded. Surprisingly enough, no reasonable and plausible explanation is forth coming to explain the delay of about one month occurred in associating them with the investigation of the case which in a criminal case without any explanation can be stated to be inordinate and consequently fatal. 16. Surprisingly enough, no reasonable and plausible explanation is forth coming to explain the delay of about one month occurred in associating them with the investigation of the case which in a criminal case without any explanation can be stated to be inordinate and consequently fatal. 16. Be it stated that as per statement of PW-4 at the time of accident the deceased was standing on the side of bridge near the railing and the accused while driving the bus in a rash and negligent manner hit the deceased with bus and as a result thereof he was pressed. The situation that the deceased was playing and hanging with pole and fell down along with pole itself and as a result thereof sustained injuries has been denied being wrong. However, as per further version of this witness, his statement was recorded after one month, which was never read over and explained to him nor was he knowing as to what was written therein. Not only this, but he was called to the Police Station by Pyare Lal, maternal uncle of the deceased persuades this court to take a view that on the basis of his statement no findings of conviction could have been recorded. 17. On the other hand, PW-7 Bachna Ram has come forward with the version that the accused hit the deceased with bus when he was walking on the bridge, however, if his statement in cross-examination is seen, the same reveals that he was at a distance of about 400-500 yards from the place of accident and his eye sight being weak was not in a position to notice the things at a distance of 50 yards. Further version of this witness that the deceased was playing and hanging with the pole and as the pole tilted, the deceased also fell down therewith on stones in the river and it is due to this reason, he sustained injuries leading to his death, demolishes the very foundation of the prosecution case. Another material piece of evidence is the spot map Ex. PW-13/A. The place of accident in the map is A-1, the corner of bridge. The map has not been put either to PW-4 or PW-7, the so called eye witnesses to get site A-1 identified from them and to remove all doubts in this behalf. 18. Another material piece of evidence is the spot map Ex. PW-13/A. The place of accident in the map is A-1, the corner of bridge. The map has not been put either to PW-4 or PW-7, the so called eye witnesses to get site A-1 identified from them and to remove all doubts in this behalf. 18. Nothing has come on the record as to in whose presence the map was prepared. On the other hand, while PW-4 has stated that the deceased was hit by bus on the bridge where he was standing with railing, as per the version of PW-7, he was walking on the bridge. Such contradiction not befitting to the factual position on the spot and as per the map Ex.PW-13/A demolishes the very foundation of the prosecution case, hence it is not safe to hold that these are minor contradictions and can be ignored. 19. Learned trial Court and also the lower appellate Court, both have heavily relied upon the testimony of so called eye witnesses PW-4 & PW-7 while recording the findings of conviction against the accused. I am, however, not in agreement with the findings so recorded for the reason that the statement of PW-4 is not worthy of credence and as regards PW-7, he states that the deceased fell down into river, which however, is not the case of the prosecution. Thus, the manner in which the accident is stated to be occurred is not proved at all and rather there emerge two views qua the manner in which the accident occurred. As per settled legal principles in the criminal administration of justice, the view favouring the accused has to be believed as correct. No doubt, PW-3 was also associated in the investigation of the case being a witness of the spot; however, he turned hostile and did not support the prosecution case. 20. As per settled legal principles in the criminal administration of justice, the view favouring the accused has to be believed as correct. No doubt, PW-3 was also associated in the investigation of the case being a witness of the spot; however, he turned hostile and did not support the prosecution case. 20. So far as PW-1 Tara Singh, PW-2 Dhani Ram and PW-5 Pyare Lal and PW-6 Hazara Singh are concerned, as noticed at the very outset, either of them was not present on the spot and being closely related to the deceased i.e. PW-6 Hazara Singh is father of deceased, PW-5, Pyare Lal, maternal uncle, PW-2, maternal grand father and PW-1 Tara Singh, uncle of the deceased being members of grief stricken family seem to have stated that the accident occurred due to rash and negligent driving on the part of the accused as otherwise they being not present on the spot had no occasion to make such statement while in the witness box. The Court, however, cannot sway with passion but to record a finding should look forward for cogent and reliable evidence. 21. The courts below have also misconstrued the statement of the medical officer PW-11 Dr. (Mrs.) K. Nath as she has nowhere stated that the nature of injuries on the person of deceased could have not been caused by way of fall. No doubt, this witness has not been cross-examined by learned defence counsel and the suggestion put to her that the nature of injury on the person of the deceased can be caused in a motor accident is admitted as correct. This, however, cannot be taken to form an opinion that the injuries were received by the deceased in the accident alone and not otherwise. 22. The evidence as has come on record by way of the statement of PW-8, Gurmail Singh, Head Mechanic, HRTC, Nalagarh and PW-9 Hari Ram, Adda Incharge, HRTC Nalagarh could have been used as link evidence because Gurmail Singh after checking the bus mechanically, found the same in order whereas from Hari Ram, the Police has taken into possession the documents of the bus and route permit. The police officer/officials associated during the investigation are also formal in nature. Hence their testimony needs not be discussed. 23. The police officer/officials associated during the investigation are also formal in nature. Hence their testimony needs not be discussed. 23. The another important circumstance, the trial court and for that matter the lower appellate Court both have omitted is the conduct of the accused as it is he who as per the prosecution case had taken the deceased to hospital in the bus. Had he been responsible for the accident he could have fled away. There were around 200 persons available on the spot at the relevant time and had he been driving the bus in a rash and negligent manner and hit the deceased, they would have not spared him. This circumstance coupled with the manner in which the investigation was conducted i.e. material prosecution witnesses were associated in the investigation on 4.8.1997, after about one month, leads to the only conclusion that the accident did not take place as is claimed in the police report. Both the courts below have not only misread, but misconstrued the provisions of law and also the evidence available on record. The present, in my considered opinion, is a case where the prosecution has miserably failed to prove that the accused was driving the bus in a rash or negligent manner and that there was nexus between the accident and the death of deceased. 24. For all the reasons hereinabove, I accept the present revision petition and set aside the impugned judgment dated 17.9.2005, passed by learned Additional Sessions Judge, circuit court at Nalagarh in criminal appeal No.31-NL/10 of 2000 whereby the judgment dated 13.12.2000 passed by the judicial Magistrate, Nalagarh, in criminal case No.109/2 of 1997 was affirmed. Consequently, the accused deserves to be acquitted. The accused is thus hereby acquitted of the charge under Sections 279 and 304-A IPC. The amount of fine, if deposited by him, be refunded to him on proper identification and receipt. The bail bonds furnished by the accused are cancelled and the surety discharged.