Judgment :- 1. This Criminal Revision is preferred against the order of conviction passed by the learned Judicial Magistrate No.III, Thanjavur under Section 304(A) IPC and sentencing him to undergo one year rigorous imprisonment and to pay a find of Rs.1,000/-in default to suffer three months S.I. which was confirmed by the learned Additional Sessions Judge, FTC I, Thanjavur in C.A.No.39 of 2010 dated 06.08.2010. 2. The short facts are that on 01.07.2009, at about 08.15 a.m., the revision petitioner had driven the Transport Corporation Bus bearing Registration No. Tamil Nadu 49 1678 from east to west direction and dashed against the motor cyclist causing him instantaneous death. The prosecution examined the son of the deceased as P.W.1 to have witnesses the accident. Apart from P.W.1, P.W.2, 3 and 4 were examined to have witnesses the accident. 3. According to the prosecution, the petitioner had driven the vehicle in a wrong side and dashed against the motor cyclist, as a result of which, he sustained fatal injuries. It is the case of the prosecution that P.W.1 who claimed to be the pillion rider due to the said impact fell on the mud portion of the road and he did not sustain any injuries. He claimed to have admitted the deceased in the hospital. 4. Mr. M. Karananidhi, learned counsel for the revision petitioner would point out that P.W.1 could not have witnesses the accident as he did not sustain any injuries and he has not accompanied the deceased to the hospital. The learned counsel would point out to the evidence of P.W.8 Doctor Amirthakani attached to the Thanjavur Medical College Hospital by the driver of the bus and deceased was brought to the hospital by the driver of the bus and there is absolutely no evidence to show that his son namely P.W.1 accompanied the deceased to the hospital. It is also pointed out by the learned counsel that none of the witnesses identified the deceased to have driven the bus at the time of accident. 5. The learned counsel pointed out to the Accident Register wherein it is stated that the name of the deceased was stated to be unknown. The learned counsel would submit that if the deceased had been brought to the hospital by P.W.1 then certainly his name and the name of the deceased would have been mentioned in Accident Register. 5. The learned counsel pointed out to the Accident Register wherein it is stated that the name of the deceased was stated to be unknown. The learned counsel would submit that if the deceased had been brought to the hospital by P.W.1 then certainly his name and the name of the deceased would have been mentioned in Accident Register. The learned counsel would further submit that P.W.2 to P.W.4 have not identified the petitioner as the driver who had driven the vehicle at the time of accident. Therefore, their evidence could not be relied upon to prove that the accused had driven the vehicle at the time of accident. It is further pointed out that the Doctor who conducted Post Mortem has not been examined and therefore, the Post Mortem Certificate has not been proved in accordance with law. The learned counsel in support of the above contention relied upon the decision of this Court reported in 2002 (2) LW 773 and 2001 (2) LW Crl. 615 wherein it is held that the court cannot look into the document the contents of which has not been proved by the prosecution. 6. Heard the learned counsel for the petitioner and the learned Government Advocate. 7. The evidence of P.W.1 would indicate that he has not accompanied the ‘D’ to the hospital. Admittedly, he has not received any injury though according to the prosecution the impact was such that it caused fatal injuries to the ’D’. The evidence indicated that P.W.1 was thrown off from the two wheeler on the mud portion of the road. It is strange that he did not sustain even an-abrasion in his body. In fact P.W.10 Investigating Officer had deposed that he did not show any mud portion on the road and there was no mud portion in the place in question. 8. That apart, in the Accident Register, it is noted that an unknown portion was brought to the hospital with injuries sustained by him in the accident. If really P.W.1 had traveled as a pillion rider in the two wheeler ridden by the ‘D’, the name of the ‘D’ would have been noted in the Accident Register. Therefore, in view of the aforesaid unsatisfactory and unreliable evidence of P.W.1, the case of prosecution that P.W.1 had witnessed the accident cannot be said to have been proved. 9. If really P.W.1 had traveled as a pillion rider in the two wheeler ridden by the ‘D’, the name of the ‘D’ would have been noted in the Accident Register. Therefore, in view of the aforesaid unsatisfactory and unreliable evidence of P.W.1, the case of prosecution that P.W.1 had witnessed the accident cannot be said to have been proved. 9. That part, on a careful scrutiny of testimony of P.W.1 to P.W.4 who are said to be the eye witnesses to the accident, it is seen that none of them had stated on oath that the petitioner/accused was driving the bus at the time of the incident. As a matter of fact, not a singly witness has identified before the trial court that the petitioner/accused was driving the bus at the time of accident. The petitioner/accused has taken a positive defence that he was not driving the bus at the time of incident. When such a positive defence was taken by the accused, it was necessary for the prosecution to prove by direct evidence that he was in fact, driving the vehicle at the time of incident in question. But no such evidence was produced by the prosecution. Merely because, the accused was arrested and released on bail, no conclusion can be drawn without any assertive released on bail, no conclusion can be drawn without any assertive evidence that the accused was actually driving the bus at the time of incident in question. The burden of proof is on the prosecution to prove that the petitioner/accused was driving the vehicle and that rash and negligent act was committed by him causing the death of the ‘D’. The courts below have convicted the petitioner/accused even without ascertaining from the prosecution evidence as to the identity of the driver of the bus. 10. Another contention put forth by the learned counsel for the petitioner is that the prosecution did not succeed in establishing a case of death, since the prosecution did not examine the doctor, who conducted the post-mortem on the body of the ‘D’, but marked the post mortem certificate only through the Investigating Officer and therefore, Ex.P.8 cannot be looked into as its contents are not proved. According to him, the non-examination of the doctor is fatal to the prosecution and relied upon the judgment of this court reported in the case of Jerald vs. State by Inspector of Police, Kanchepuram Taluk Police Station, 2001-20 LW (Crl) 615. 11. I see every force in the contention of the learned counsel. The Doctor, who issued the certificate, though according to the prosecution conducted autopsy, was not examined and no explanation was offered by the prosecution before the court, as to why he was not examined. As held by the learned Single Judge in the aforesaid decision, this Court cannot presume the cause of death as it cannot rely upon Ex.P.8, as the said document was not proved in terms of the provision of Evidence Act. 12. Another circumstance which also is looked into against the prosecution is that one of the eye witnesses has been examined after the Investigating Officer had been examined, thus depriving the accused of his opportunity to contradict his evidence with the statements given by the said witness to the Investigating Officer thus causing prejudice to the accused. Further, the non-examination of the police constable who was at the traffic beet in the place of incident at the time of accident has to be taken adverse note of. The case of prosecution is that the bus was driven in a rash and negligent manner by the driver of the bus and instead of taking a round about circle, took a shortcut, resulting in the accident. The traffic constable who was at that traffic point at the time of incident in question is the proper person to speak about the said fact and an adverse inference can be drawn from non-examination of the said traffic constable. 13. At this juncture, it is relevant to refer to the observation made by the Hon’ble Supreme Court in State of Himachala Pradesh Vs. Gianch reported in AIR 2001 SC 2075 wherein it is observed that if the available evidence suffers from some infirmity and acceptable, in the absence of any other evidence which though available has been withheld from the court then the question of drawing an adverse inference against the prosecution for non-examination of such witness may arise. 14. Gianch reported in AIR 2001 SC 2075 wherein it is observed that if the available evidence suffers from some infirmity and acceptable, in the absence of any other evidence which though available has been withheld from the court then the question of drawing an adverse inference against the prosecution for non-examination of such witness may arise. 14. Therefore, as discussed above, I am of the considered view that the courts below have failed to appreciate the evidence in a proper perspective manner and the conclusion arrived at by the courts below finding the petitioner/accused guilty of the offence cannot be sustained. 15. In the result, this Revision is allowed. The judgment and order of conviction and sentence passed by the courts below are set aside. The bail bond stands cancelled. The fine amount shall be refunded to the petitioner/accused.