ORDER : S. VISHWAJITH SHETTY, J. 1. Accused is before this Court in this criminal revision petition filed under Section 397 read with Section 401 of Cr.P.C. with a prayer to set-aside the judgment and order of conviction and sentence dated 02.01.2016 passed in CC No.241/2013 by the Court of Principal Civil Judge and JMFC, Hoskote and the judgment and order dated 03.04.2017 passed in Crl.A.No.3/2016 by the Court of VIII Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru. 2. Heard the learned counsel for the parties. 3. Petitioner herein was charge sheeted for the offences punishable under Sections 279 and 304(A) of IPC and Sections 6(2) and 177 of the Motor Vehicles Act, 1988, in CC No.241/2013 on the file of Principal Civil Judge and JMFC, Hoskote. It is the case of the prosecution that on 21.12.2012 at about 02:55 p. m. near Beereshwara Kalyana Mantapa, Sulibele, on NH-207, the petitioner, who is a driver in BMTC, drove the bus bearing registration No.KA01/F3462 in a rash and negligent manner and as a result, Smt. Munithayamma, who was travelling in the bus, fell down and came under the rear wheel of the bus and sustained injuries. She, subsequently, died in the Hospital while undergoing treatment. Petitioner, who had appeared before the Trial Court in response to the summons received by him in CC No.241/2013 had pleaded not guilty and claimed to be tried. The prosecution in order to prove its charges against the petitioner had in all examined eight charge sheet witnesses as PW1 to PW8 and had got marked seven documents as Ex.P1 to P7. In support of the defence, no evidence was led nor was any documents got marked. The Trial Court, after recording the statement of the accused under Section 313 of Cr.P.C. had heard the arguments addressed on both sides and vide the impugned judgment and order dated 02.01.2016 had acquitted the petitioner for the offence punishable under Section 177 of the Motor Vehicles Act, 1988 and convicted and sentenced him for the offences punishable under Sections 279 and 304(A) of IPC. The said judgment and order of conviction and sentence was confirmed in Crl.A.No.3/2016 by the Court of VIII Addl. District and Sessions Judge, Bengaluru Rural District, Benglauru, vide judgment and order dated 03.04.2017. Aggrieved by the same, the petitioner is before this Court. 4. The said judgment and order of conviction and sentence was confirmed in Crl.A.No.3/2016 by the Court of VIII Addl. District and Sessions Judge, Bengaluru Rural District, Benglauru, vide judgment and order dated 03.04.2017. Aggrieved by the same, the petitioner is before this Court. 4. Learned counsel for the petitioner submits that prosecution has failed to prove that the petitioner was driving the offending bus in a rash and negligent manner. He submits that deceased Munithayamma was sitting on the foot board of the offending bus and she had lost control and had fallen down and petitioner cannot be held responsible for the same. The prosecution has not examined any other inmates of the bus except the Conductor (PW2) to prove that petitioner was driving the vehicle in a rash and negligent manner and as a result, the deceased who was travelling in the bus had lost control and fallen down. He has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Mohammed Aynuddin alias Miyam vs. State of Andhra Pradesh - AIR 2000 SC 2511 in support of his arguments. 5. Per contra, learned HCGP has argued in support of the impugned judgment and order of conviction and sentence and submits that evidence of PW3 and PW4 conclusively proves that petitioner was driving the vehicle in a rash and negligent manner and accident in question had taken place as a result of the same. He, accordingly, prays to dismiss the petition. 6. The prosecution in order to prove the charges levelled against the petitioner has examined eight charge sheet witnesses as PW1 to PW8 before the Trial Court. PW1 Ramesha, son of deceased Munithayamma, is the first informant in the present case. Undisputedly, he is not an eye witness to the incident in question. This witness has stated that his mother had fallen down from the foot board of the bus and had suffered injuries. He was informed about the accident by someone and immediately thereafter he had shifted his mother to MVJ Hospital for treatment. During the course of his cross- examination, he has stated that he is not aware about the averments found in the first information. He has also stated that he is not aware of the contents of the mahazar, which he had signed in the Police Station. During the course of his cross- examination, he has stated that he is not aware about the averments found in the first information. He has also stated that he is not aware of the contents of the mahazar, which he had signed in the Police Station. This witness is only a hear say witness and his evidence is not helpful to the prosecution to prove the charges leveled against the petitioner. PW2 is the Conductor of the offending bus which was driven by the petitioner on the alleged date of incident. This witness has stated that on the alleged date of incident, he was issuing tickets to the passengers and the bus was moving forward. At that time, he heard passengers shouting and immediately the bus was stopped. When he and the passengers got down from the bus, he saw that a lady had fallen down from the bus and had suffered head injuries and immediately thereafter she was shifted to MVJ Hospital. This witness has stated that the lady, who had suffered injuries in the accident, had fallen from the footboard and had died. During the course of his examination- in-chief, he has stated that he is not aware as to how she fell down from the bus. Therefore, this witness was treated as a hostile witness by the prosecution and cross-examined. However, nothing material has been elicited from the mouth of this witness which is incriminating against the petitioner/accused. 7. PW3 and PW4 are the eye witnesses to the incident in question. PW3 has stated that he and PW4 were sitting inside a tea shop in front of Beereshwara Kalyana Mantapa, when the accident in question had taken place. At that time, the offending bus which came from Hoskote side towards Sulibele took a turn rashly and Munithayamma, who was sitting inside the bus fell down and suffered injuries. PW4 also has stated similarly during the course of his deposition. However, the fact remains that PW3 and PW4 are not the inmates of the bus and on the other hand, they were sitting inside a tea shop when the accident in question had taken place. These witnesses have not stated the distance of the accident spot from the tea shop in which they were sitting. However, the fact remains that PW3 and PW4 are not the inmates of the bus and on the other hand, they were sitting inside a tea shop when the accident in question had taken place. These witnesses have not stated the distance of the accident spot from the tea shop in which they were sitting. Since these witnesses were not inmates of the bus, it is difficult to believe that they had seen the deceased sitting inside the bus prior to the accident in question. 8. According to PW1 and PW2, the deceased was on the foot board when the accident in question had taken place. The prosecution has failed to examine any of the passengers or inmates of the offending bus, who would have been the best witnesses to say whether the driver of the vehicle was driving the vehicle in a rash and negligent manner and best witnesses to also say where the deceased was sitting/standing immediately prior to the accident in question. PW5 and PW6 are the panchas to the spot mahazar Ex.P2 and inquest mahazar Ex.P4. Their evidence is not helpful to the prosecution either to prove that the petitioner was driving the offending vehicle in a rash and negligent manner or to prove that the deceased, was sitting inside the bus and as a result of rash and negligent driving, she had fallen down and sustained injuries. PW7, is the PSI, who had registered FIR in Crime No.115/2012 and forwarded the same to the jurisdictional Court. This witness also has spoken about the spot mahazar prepared by him as per Ex.P2 and the inquest mahazar Ex.P4. PW8, is the Motor Vehicle Inspector, who has issued the Motor Vehicle inspection report as per Ex.P7. The evidence of PW6 and PW7 is also not helpful to the case of the prosecution to prove the charges against the petitioner that he was driving the offending vehicle in a rash and negligent manner and as a result, the deceased who was sitting inside the bus had fallen down and had sustained injuries. 9. In almost identical circumstances, the Hon'ble Supreme Court in the case of Mohammed Aynuddin (supra) in paragraph Nos.9 and 10, has observed as follows:- "9. A rash act is primarily an over hasty act. It is opposed to a deliberate act. 9. In almost identical circumstances, the Hon'ble Supreme Court in the case of Mohammed Aynuddin (supra) in paragraph Nos.9 and 10, has observed as follows:- "9. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution. 10. In the present case the possible explanation of the driver is that he was unaware of even the possibility of the accident which happened. It could be so. When he moved the vehicle forward his focus normally would have been towards what was ahead of the vehicle. He is not expected to move the vehicle forward when passengers are in the process of boarding the vehicle. But when he gets a signal from the conductor that the bus can proceed he is expected to start moving the vehicle. Here no witness has said, including the conductor, that the driver moved the vehicle before getting a signal to move forward. The evidence in this case is too scanty to fasten him with criminal negligence. Some further evidence is indispensably needed to presume that the passenger fell down due to the negligence of the driver of the bus. Such further evidence is lacking in this case. Therefore, the Court is disabled from concluding that the victim fell down only because of the negligent driving of the bus. The corollary thereof is that the conviction of the appellant of the offence is unsustainable." 10. In the present case, prosecution has not only failed to prove that the petitioner was driving the offending vehicle in a rash and negligent manner but also has failed to prove that the deceased lady was sitting inside the bus and due to the rash and negligent driving of the bus by the petitioner, she had fallen down and had sustained injuries. From the evidence of PW1 and PW2, it appears that victim was on the foot board when the accident in question had taken place. If that is so, she was travelling negligently and if she had lost balance and fallen down, the petitioner, who was the driver of the bus cannot be held responsible for the same. The Trial Court as well as the Appellate Court have failed to appreciate this aspect of the matter and in my considered opinion, have erred in convicting the petitioner for alleged offences. Under the circumstances, the impugned judgment and order of conviction and sentence cannot be sustained. Accordingly, the following order:- 11. The Criminal Revision Petition is allowed . The judgment and order of conviction and sentence dated 02.01.2016 passed in CC No.241/2013 by the Court of Principal Civil Judge and JMFC, Hoskote and the judgment and order dated 03.04.2017 passed in Crl.A.No.3/2016 by the Court of VIII Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru are set-aside. The petitioner is acquitted of the charge sheeted offences. Bail bonds, if any, stands cancelled. 12. Fine amount deposited by the petitioner, if any, shall be refunded to him.