JUDGMENT :

Bhargava, J.

1. The appellant was the driver of State bus No. WBS 1735 running on Route No. 14 in Calcutta. On 5th March, 1964, at about 2.00 P.M., as he was driving the bus upon Upper Circular Road and came to the junction of that road with Raja Ram Mohan Roy Road, an accident occurred as a result of which one Gopinath Dey fell down injured at the southwest corner of the junction of the two roads. The appellant proceeded to the Police Station and reported this incident. Gopinath Dey died in the Hospital at 5.00 A.M. on 6th March, 1964. The appellant was, thereupon, charged with an offence of causing death of Gopinath Dey by rash and negligent act punishable under section 304A of the Indian Penal Code. He was tried by the Presidency Magistrate, convicted and sentenced to two years' rigorous imprisonment and a fine of Rs. 1 000/-. He appealed to the High Court of Calcutta, but his appeal was summarily dismissed. He has now come up in this appeal to this Court by special leave.

2. It is a little unfortunate that, in this case, the High Court dismissed the appeal summarily and did not exmine the record to see whether the judgment of the Presidency Magistrate was correct. On behalf of the appellant, our attention was drawn to the fact that the Presidency Magistrate, in trying the case, did not even examine the appellant under section 342 of the Code of Criminal Procedure and merely recorded the appellant's plea of not guilty under section 362, Criminal Procedure Code. There was, thus, a very clear error of law committed by the Presidency Magistrate.

3. Apart from this circumstance, the judgment of the Presidency Magistrate itself shows that he based his decision on evidence of three witnesses, two of whom were actually declared hostile while the third did not depose that he saw the impact at the time of the accident as a result of which Gopinath Dey died. The first witness examined on behalf of the prosecution was P.W. 2, Hare Krishna Sur, who was the conductor at the front gate of the bus. It appears that, in his statement to the Police, this witness had stated that a pedestrian was knocked down by the bus, while when he was examined in Court, all he stated was that, near the crossing of Raja Ram Mohan Roy Road and Upper Circular Road, the bus was suddenly stopped by sudden application of brakes and just at that time he saw a man lying on the left-hand side of the bus on the road, adding that he did not see how or why the man fell down. Consequently, the prosecution declared him hostile and crossexamined him, making the suggestion that he tried to suppreses the fact that a pedestrian was knocked down by the bus, due to friendship and fellowfeeling with the appellant. Similarly, P.W. 3, Narain Chandra Dutta, was the second conductor posted at the rear gate of the bus and he also, in his statement in Court, did not state that the bus knocked down a pedestrian, while he had said so before the investigating Officer : and, consequently, he was also declared hostile. However, the judgment of the Presidency Magistrate shows that, in spite of these witnesses being declared hostile, the Magistrate proceeded to rely on their evidence in order to convict the appellant. That became necessary because, apart from the evidence of these two witnesses, there was no other material on the record to prove that it was this very appellant who was driving the butt at the time of the accident.

4. The only other piece of evidence available on this point was the record of the information given by the appellant himself at the police station which, of course, could not be substantive evidence in the case forming the basis of the conviction of the appellant. In fact, the judgment of the Magistrate shows that he relied on the evidence of these two witnesses even on other points relating to the manner in which the accident took place, because the only other prosecution witness, P.W. 10, Prafulla Kumar Dey, clearly admitted that he did not see the actual