The main legal point established in the judgment is that in criminal cases, the prosecution must prove culpable or gross negligence, and an error of judgment may not necessarily amount to culpable negligence.

JUDGMENT - A.D. TATED, J.:---The State preferred this appeal against the judgment and order dated 10th July, 1981 passed by the learned Judicial Magistrate, First Class, Vasai, in Criminal Case No. 1299 of 1978 acquitting the respondent-accused driver of on S.T. bus-of the offences punishable under sections 279 and 304-A I.P.C. and section 116 of the Motor Vehicle Act, 1939.

2. The facts leading to the prosecution of the respondent-accused lie in a very narrow compass. The accused on 18th July, 1978 was driving State Transport Bus No. MHF 481 plying between Arnala and Virar. He left Arnala at about 2 p.m. At a short distance from Arnala Bus Station there is a building where the Bank of Maharashtra is housed and near that building there is a sharp curve. The bus driving from Arnala to Virar has to travel from west to east and hear the Maharashtra Bank building it has to take a sharp turn towards north. While the bus driven by the accused was negotiating the curve near the Maharashtra Bank building, the left middle portion of the body of the bus came in contact with the wall of the Maharashtra Bank building and at that time deceased Sakina Vahad Bugadwala, aged about 20 years, who was walking by the side of the Maharashtra Bank building, was crushed between the body of the bus and the Maharashtra Bank building, and she succumbed to the injuries sustained by her in the impact of the bus. Near the Maharashtra Bank building there is a cutcha road of the, width of about three and half feet and beyond that there is a tar road of the width of 13 feet and beyond the tar road there is some cutcha road. The bus while negotiating the curve had left the tar road and went on the cutcha road and, while so negotiating the curve, the middle and the rear left portions of the bus brushed the wall of the Maharashtra Bank building and in the process the pedestrian Sakina was crushed and succumbed to the injuries. On those facts, the prosecution alleged that the accused was rash and negligent in driving the vehicle and thereby caused the death of Sakina. He was, therefore, prosecuted for the offences mentioned above.

3. The defence of the respondent-accused as disclosed in his examination under section 313 Cri.P.C., is that a vehicle was coming from the opposite side and, therefore, he stopped the vehicle, and he had to shunt the vehicle to make room for the vehicle coming from the opposite direction. At that time there was commotion at the back side and, therefore, he got down and witnessed that a woman was pressed between the wall of the Maharashtra Bank building and the bus. He denied that he was rash and negligent in driving the vehicle. He led no evidence in defence.

4. The learned Judicial Magistrate, after considering the evidence adduced by the prosecution, found that the prosecution failed to prove the offence beyond reasonable doubt, and, therefore, he acquitted the respondent-accused.

5. Feeling aggrieved, the State has come up in appeal.

6. The learned Public Prosecutor Mr. P.M. Vyas contends that while the respondent-accused was negotiating the curve near the Maharashtra Bank building he had taken the vehicle from the tar road to the extreme left-hand side on the cutcha road and he did not exercise the necessary care in negotiating the curve and thereby the middle and the rear portions of the vehicle brushed against the wall of the Maharashtra Bank building and deceased Sakina, who was then passing by the side of the Maharashtra Bank building, was crushed between the bus and the Maharashtra Bank building. According to the learned Public Prosecutor, the learned trial Magistrate rightly rejected the defence story that the accused had to take the vehicle to the extreme left to make room for the vehicle coming from the opposite direction. The Conductor Shankar Santu Barad (P.W. 3) who was on the vehicle at the time of the incident, stated that some bus was coming from the opposite direction and in order to make way for the bus to pass, the accu

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