1 2025:CGHC:49459 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 877 of 2022 1 - Bodhan Markam S/o Janki Ram Markam Aged About 50 Years R/o Village- Donga, Police Station- Makola, District- Surguja (C.G.) At Present R/o Imam Bada, Nurani Chowk, Rajatalab, Pandri, District- Raipur (C.G.) ... Appellant versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station- Kurud, District- Dhamtari (C.G.) ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Rudra Pratap Dubey, Advocate appears on behalf of Mr. Goutam Khetrapal, Advocate For Respondent / State : Ms. Anuradha Jain, Panel Lawyer. Hon'ble Shri Justice Naresh Kumar Chandravanshi Judgment on Board 26/09/2025 1. This criminal appeal has been preferred by appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 (for brevity ‘Cr.P.C.’) challenging the judgment of conviction and order of sentence dated 26.04.2022 passed by learned Upper Sessions Judge, Dhamtari, District Dhamtari (CG) in Sessions Case No.07/2019, whereby the appellant has been convicted and sentenced in following manner:- Sr. No. Conviction u/S Jail Sentence Fine Sentence Default Stipulation 01. 279, IPC -- Rs.500/- S.I. for 15 days 02. 337 (8 counts), IPC -- Rs.500/- (8 times) S.I. for 15 days RUKHSAR BANO Digitally signed by RUKHSAR BANO Date: 2025.10.14 18:00:56 +0530 2 03. 304-A, IPC S.I. for 01 year Rs.500/- S.I. for 15 days All the substantive jail sentences are directed to run concurrently. 2. Case of the prosecution, in brief, is that on 16.08.2018, at about 8 am, the appellant was going from Raipur to Kanker driving the bus bearing registration No.C.G. 19/F/0226 (henceforth referred to as “bus”) rashly and negligently, as such, he lost control on it, therefore, near Rakhi mod, Dhamtari, the bus met with an accident. Consequently, the bus overturned and Parmeshwar, who was conductor /helper of aforesaid bus and Nemu Ram Sahu, who was traveling in the bus, sustained injuries and succumbed. Post mortem of Parmeshwar was conducted by Dr. B.K. Markam (PW-5) vide Ex. P-2. Vishvanath Das (PW-2), Sonalika Das (PW- 3), Bhupesh Kumar (PW-4), Umesh Patil (PW-7), Arvind Kumar Thakur (PW-8), Santosh Kumar Verma (PW-9), Durga Ram Yadav (PW-10), Himalaya Tiwari (PW-12), Geetanjali Tiwari (PW-13), Mohammad Haneef (PW-14), Ashok Kumar Manjhi (PW-15) and Balraj Baghel (PW-16), who were traveling in the bus, sustained injuries and their MLC were also conducted by Dr. B.K. Markam (PW-5). Based on above facts, Dehati Nalisi [Ex. P-15 (repeat)] was recorded, inquest report [Ex. P-16 (repeat) and P-23] were prepared, numbered FIR (Ex. P-19) was registered against the appellant who was driving the bus, statement of witnesses were recorded, bus was seized vide seizure memo (Ex. P-25), documents of bus and driving license of appellant/accused were seized vide seizure memo (Ex. P-14), spot map (Ex. P-18) was prepared, the appellant was arrested, mechanical examination report (Ex. P-1) was prepared by mechanic Chandrahas Dewangan (PW-1). After completion of 3 investigation, a charge-sheet under Section 323, 304 part-II of the IPC and Section 200 of the Motor Vehicle Act was filed against the appellant. 3. Learned trial Court framed charges under Section 323 and 304-II of the IPC, which was read and explained to the appellant, who absurd his guilt and claimed trial. 4. In order to bring home the charges, the prosecution examined as many as 16 witnesses and exhibited 32 documents, statement of the appellant under Section 313 of the Cr.P.C. was recorded, in which, he denied all the circumstances appearing against him in prosecution’s evidence and pleaded not guilty. He has not examined any witness in his defence. 5. Learned Upper Sessions Judge, after considering the evidence adduced by the prosecution, held that charges under Sections 323 and 304 part-II of the IPC are not proved, instead thereof, it has convicted and sentenced the appellant, as mentioned in opening paragraph of this judgment. Hence, this appeal. 6. Learned counsel for the appellant would submit that in instant case, the prosecution has examined many injured passengers as witnesses, who have deposed that the bus was driven by the appellant in excessive speed, but they have not deposed specifically that what was the actual speed of the bus. He would further submit that rash and negligent driving cannot be held proved only on the basis of verbal statement of witnesses, rather, it has to be proved by clinching evidence. He next submitted that accident had not occurred because of rash and negligent driving of the bus, rather, it happened because main spring (Patta) of the bus was broken all of sudden, therefore, appellant/driver lost control on the bus. This fact has been proved by Chandrahas Dewangan (PW-1), who conducted mechanical examination of the bus. He has also admitted that if 4 in running condition of the bus, main spring of it is broken, then, vehicle may go out of control and turns turtle. Learned counsel further submits that the learned trial Court has convicted appellant only on the basis of vague and baseless evidence, hence, the same is perverse and illegal. He lastly submits that the appeal may be allowed and the appellant may be acquitted of all the charges by setting aside the impugned judgment passed by the trial Court. 7. Per contra, learned State counsel would submit that Vishvanath Das (PW-2), Bhupesh Kumar (PW-4), Umesh Patil (PW-7), Arvind Kumar Thakur (PW-8), Mohammad Haneef (PW-14) and Balraj Baghel (PW-16), who were passengers sitting in the bus and sustained injuries in the accident, have specifically deposed that at the time of accident, bus was driven at a high speed, therefore, it met with the accident. She would further submit that Umesh Patil (PW-7) and Mohammad Haneef (PW-14) have identified the appellant that he was driving the bus at the time of accident, which has also not been controverted in cross-examination. She next submitted that because of rash and negligent driving of bus by the appellant, two persons succumbed to injuries and eight persons have suffered from various types of injuries. She lastly submitted that the impugned judgment passed by the learned Upper Sessions Judge is based on well appreciation of the evidence, therefore, it does not call for any interference of this Court, hence, this appeal is liable to be rejected. 8. I have heard learned counsel for the parties and perused the material available on record. 9. It is a case of motor accident, in which, bus turned turtle because of rash and negligent driving of the driver of the bus. Several passengers were traveling in the bus, but charge has been framed only on the basis of 5 injury sustained to Santosh Kumar Verma, who was also a passenger of the bus and due to death of Parmeshwar @ Pintu, who was conductor/helper of the bus. 10. As per MLC report (Ex. P-3) of victim Santosh Kumar Verma (PW-9), he sustained abrasion and also suggested for X-ray, but no X-ray report has been filed / proved by prosecution to prove the same. Aforesaid MLC report has been proved by Dr. B.K. Markam (PW-5), who examined victim Santosh Kumar Verma. 11. Dr. B.K. Markam (PW-5) had conducted post mortem of deceased Parmeshwar, according to which, various internal and external injuries were found in the person of deceased along with fracture of the radius - ulna bone. He has opined that cause of death of Parmeshwar was due to coma because of excessive bleeding and respiratory failure. He has further deposed that nature of death of Parmeshwar was ‘accidental’, which is well supported by post mortem report (Ex. P-2) prepared by him. 12. Thus, from the perusal of aforesaid evidence, it is proved that in said accident, Santosh Kumar Verma, who was traviling in the bus, had sustained simple injuries, whereas Parmeshwar had sustained multiple grievous injuries and succumbed to those injuries. 13. Vishvanath Das (PW-2), Sonalika Das (PW-3), Bhupesh Kumar (PW- 4), Umesh Patil (PW-7), Arvind Kumar Thakur (PW-8), Santosh Kumar Verma (PW-9), Durga Ram Yadav (PW-10), Himalaya Tiwari (PW-12), Geetanjali Tiwari (PW-13), Mohammad Haneef (PW-14), Ashok Kumar Manjhi (PW-15) and Balraj Baghel (PW-16) have deposed that at the time of accident, they were traveling in the bus and the bus was going from Raipur to Kanker. These witnesses are injured witnesses and had sustained injuries. MLC reports (Ex. P-4 to Ex. P-10, Ex. P-12 & P-13) of 6 these witnesses were prepared by Dr. B.K. Markam (PW-5), who has also deposed that on medical examination of those witnesses, he had found abrasion and complaint of pain on their bodies, as has been mentioned in their respective MLC reports. Arvind Kumar Thakur (PW-8) and Durga Ram Yadav (PW-10) have also proved the fact that Parmeshwar, who was traveling as conductor/helper of the bus, and one another passenger namely; Nemu Ram Sahu had also sustained grievous injuries, therefore, conductor/ helper namely; Parmeshwar died on the spot and Nemu Ram Sahu also died on the same day because of injuries sustained by him. Though at the time of post mortem, dead body of Parmeshwar was not identified, but subsequently, it was identified by Rajesh Kumar Yadav vide identification panchnama (Ex. P-28). Post mortem of another deceased passenger namely; Nemu Ram Sahu has not been proved, therefore, his death has not been held proved by the trial Court, which has not been challenged by the prosecution. In view of the above evidence, it is found that at the time of accident, Parmeshwar was traveling in the bus as conductor / helper and had sustained injuries in the accident and succumbed and various other passengers i.e. Vishvanath Das (PW-2), Sonalika Das (PW-3), Bhupesh Kumar (PW-4), Umesh Patil (PW-7), Arvind Kumar Thakur (PW-8), Santosh Kumar Verma (PW-9), Durga Ram Yadav (PW-10), Himalaya Tiwari (PW-12), Geetanjali Tiwari (PW-13), Mohammad Haneef (PW-14), Ashok Kumar Manjhi (PW-15) and Balraj Baghel (PW-16), who were also traveling in the bus had sustained injuries as per their respective MLC reports. But, no grievous injury sustained to them has been proved. 14. So far as identification of the appellant as driver of the bus is concerned, Umesh Patil (PW-7) has identified that at the time of accident, 7 the appellant was driving the bus. Though other prosecution’s witnesses have not specifically deposed that at the time of accident, the appellant was driving the bus, but Bhupesh Kumar (PW-4) and Santosh Kumar Verma (PW-9) also deposed that Bodhan Markam was driving the bus. This fact has been specifically proved by Umesh Patil (PW-7) and his statement has not been contradicted in cross-examination, hence, the Upper Sessions Judge has rightly held that at the time of accident, the appellant was driving the bus. 15. As far as the manner, in which, bus was being driven by the appellant at the time of accident, is concerned, to bring home the charges, it is incumbent upon prosecution to prove the fact that the appellant/accused was driving the bus in rash or negligent manner. 16. The Hon’ble Supreme Court in the case of Ravi Kapur vs. State of Rajasthan reported in (2012) 9 SCC 284, while considering the fact of rash and negligent driving in accidental cases, has observed as under:- “11. In order to examine the merit or otherwise of Contentions (b) and (c) raised on behalf of the appellant, it is necessary for the Court to first and foremost examine (a) what is rash and negligent driving; and (b) whether it can be gathered from the attendant circumstances. (A) Rash and negligent driving 12. Rash and negligent driving has to be examined in the light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would 8 amount to "rash and negligent driving" within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words "manner so rash or negligent as to endanger human life". The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted. 13. "Negligence" means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the court. In a given case, even not doing what one was ought to do can constitute negligence. 14. The court has to adopt another parameter ie. "reasonable care" in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others. 15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine 9 serves two purposes – one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of "culpable rashness" and "culpable negligence" into consideration in cases of road accidents. "Culpable rashness" is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). "Culpable negligence" is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's An Exhaustive Commentary on Motor Vehicles Act, 1988 (1st Edn., 2010).] 16. We have noticed these principles in order to examine the questions raised in the present case in their correct perspective. 10 We may notice that certain doctrines falling in the realm of accidental civil or tortious jurisprudence, are quite applicable to the cases falling under criminal jurisprudence like the present one. 17. Now, we may refer to some judgments of this Court which would provide guidance for determinatively answering such questions. In Alister Anthony Pareira v. State of Maharashtra [(2012) 2 SCC 648] where the driver of a vehicle was driving the vehicle at a high speed at late hours of the night in a drunken state and killed seven labourers sleeping on the pavement, injuring other eight, this Court dismissing the appeal, laid down the tests to determine criminal culpability on the basis of "knowledge", as follows (SCC pp. 663-64, para 41) "41. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law - in view of the provisions of IPC - the cases which fall within the last clause of Section 299 but not within clause 'Fourthly' of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC Section 304-A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description." (emphasis supplied) 18. Again, in Naresh Giri v. State of M.P. [(2008) 1 SCC 791], where a train had hit a bus being driven by the appellant at the railway crossing and the bus was badly damaged and two persons died, this Court, while altering the charges from Section 11 302 IPC to Section 304-A IPC, observed: (SCC pp. 794-97, paras 7-9 & 13) "7. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A. 8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as 12 the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practise such rashness or negligence which may cause the death of other. The death so caused is not the determining factor. 9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edn.), Vol. 34, Para 1 (p. 3), as follows: '1. General principles of the law of negligence - Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent, although in other circumstances it will 13 not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two.’ * * * 13. According to the dictionary meaning 'reckless' means 'careless', regardless or heedless of the possible harmful consequences of one's acts. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognising the existence of the risk and nevertheless deciding to ignore it." 19. In Mohd. Aynuddin v. State of A.P. [(2000) 7 SCC 72], the appellant was driving a bus and while a passenger was boarding the bus, the bus was driven which resulted in the fall of the passenger and the rear wheel of the bus ran over the passenger. This Court, drawing the distinction between a rash act and a negligent act held that it was culpable rashness and criminal negligence and held as under: (SCC pp. 74-75, paras 7 & 9) "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 14 presumption of negligence can be drawn against the driver of the bus. * * * 9. A rash act is primarily an overhasty 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." (B) Attendant circumstances and inference of rash and negligent driving 20. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may 15 be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as: • The event would not have occurred but for someone's negligence. • The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event. • The accused was negligent and owed a duty of care towards the victim. 21. In Thakur Singh v. State of Punjab [(2003) 9 SCC 208] the petitioner drove a bus rashly and negligently with 41 passengers and while crossing a bridge, the bus fell into the nearby canal resulting in death of all the passengers. The Court applied the doctrine of res ipsa loquitur since admittedly the petitioner was driving the bus at the relevant time and it was going over the bridge when it fell down. The Court held as under: (SCC p. 209, para 4) "4. It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts on to the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part." 22. Still, in Mohd. Aynuddin (supra), this Court has also stated the principle: (SCC p. 74, para 8) "8. The principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to 16 the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer." It has also been stated that the effect of this maxim, however, depends upon the cogency of the inferences to be drawn and must, therefore, vary in each case.” 17. In the light of aforesaid principles laid down by Hon’ble Apex Court, if facts and evidence of the case in hand is examined, then, it is found that passengers of bus namely; Vishvanath Das (PW-2), Bhupesh Kumar (PW- 4), Umesh Patil (PW-7), Arvind Kumar Thakur (PW-8), Durga Ram Yadav (PW-10), Himalaya Tiwari (PW-12), Mohammad Haneef (PW-14) and Balraj Baghel (PW-16) have stated in their deposition that at the time of accident, the appellant was driving the bus in speed, but they have not specifically stated that what was the speed of the bus. Act of rash and negligent driving cannot be held proved only on the basis of such vague statement of witnesses. Whether any vehicle is driven in over speed or not, depends upon various aspects i.e. condition of road, public places and villages situated adjacent to road etc. In instant case, prosecution’s witnesses namely; Vishvanath Das (PW-2), Sonalika Das (PW-3), Bhupesh Kumar (PW-4), Arvind Kumar Thakur (PW-8), Santosh Kumar Verma (PW-9), Durga Ram Yadav (PW-10), Suresh Singh Bais (PW-11) and Mohammad Haneef (PW-14) have deposed that, work of widening of road was going on at the place of accident, as such, width of road was narrowed down at that place, hence in such situation, it is expected from the driver to drive the vehicle in such speed that in any emergent situation, he can control the vehicle. But, as has been observed above, none of the witnesses have specifically deposed that what was the speed of the bus 17 and it was excessive in aforesaid situation of the road. 18. After accident, Investigating Officer has got mechanically examined the bus from Chandrahas Dewangan (PW-1), who is motor mechanic. This witness has specifically deposed that on mechanical examination of the bus, he found that main spring of it was broken along with other damages to the bus in conductor’s side. He has admitted in cross-examination that if the main spring of a moving bus breaks, the bus sways and rotates and due to this, the bus may also overturn. Since rash and negligent act of the appellant while driving the bus has not been proved by the prosecution / its witnesses, rather, mechanic Chandrahas Dewangan (PW-1), who carried out the mechanical examination of the bus, has proved that main spring of the bus had broken and in such situation, the bus sways and rotates and due to this, it may also overturn, therefore, on the basis of aforesaid fact, it cannot be ruled out that the bus met with accident and turned turtle due to sudden break of main spring of bus, driver lost control on the bus, as such, the bus overturned. 19. In impugned judgment, learned Upper Sessions Judge in para 38 has discussed the deposition of Chandrahas Dewangan (PW-1) and also the circumstances that if main spring of a moving bus is broken all of sudden, the bus may overturn, but on the basis of surmises only, he has declined to probable fact, which could be occurred in situation mentioned by Chandrahas Dewangan (PW-1) in his deposition i.e. sudden breaks of main spring of bus. If the bus would have been in over speed, then after overturning, it would have been gone far away from the road, but Suresh Singh Bais (PW-11), who is investigating officer of the case, has denied the suggestion of the defence counsel that, the bus overturned after going 10-12 feet from the road, rather, he has said that it overturned on the side 18 of the road, which also supports the fact that the bus was not in over speed. Since deposition of Chandrahas Dewangan (PW-1) has been declined by the Upper Sessions Judge/trial Court on the basis of surmises only, whereas considering the deposition of Chandrahas Dewangan (PW- 1), probability of the fact that because of sudden breaking of main spring of the bus, the appellant/accused could not have able to control the bus, therefore it met with incident, cannot be ruled out. 20. Having considered aforesaid facts, it is found that the finding recorded by the Upper Sessions Judge/trial Court holding guilty appellant for said offences under Sections 279, 337 and 304-A of the IPC and sentencing him is not based on well appreciation of the evidence, rather, it is based on assumption and perverse to the evidence available on record. Hence, in the considered opinion of this Court, the impugned judgment is not found to be sustainable. 21. In view of above discussion, this Criminal Appeal is allowed. Impugned judgment of conviction and order of sentence passed by the Upper Sessions Judge Dhamtari, District Dhamtari (CG) is liable to be and is hereby set aside and the appellant is acquitted of all the said charges. 22. The appellant is reported to be on bail, his bail bonds shall remain in force for a further period of six months in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 23. Let copy of this judgment along with record of the Court below be sent back forthwith for compliance and needful. Sd/- (Naresh Kumar Chandravanshi) JUDGE Rukhsar