JUDGMENT - GAVAI B.R., J.:---The applicant, has preferred the present revision application, under section 397 of the Code of Criminal Procedure, challenging the order passed by the learned Sessions Judge, Yavatmal, dated 27th July, 2000 in Criminal Appeal No. 44 of 1996, thereby dismissing the appeal of the present applicant, filed against the judgment and order, passed by the learned Judicial Magistrate, First Class, Yavatmal in Summary Criminal Case No. 350 of 1992.

2.The applicant/accused, was charged for the offence punishable, under sections 279, 337, 308 and 304-A, of the Indian Penal Code, on the basis of charge-sheet instituted by P.S.O., Yavatmal (Rural). The prosecution story, in brief is that, on 27-4-1992 at about 8.00 p.m., the applicant/accused Kisan Pandurang Pachange, was under influence of liquor and that when the bus was plying from Jodmoha to Yavatmal, he was driving the bus, in a rash and negligent manner, due to which, an accident occured, leading to the death of two persons. The learned Judicial Magistrate, First Class, Yavatmal, relying on the sole testimony of witness Devidas (P.W. 1), came to the conclusion that, the prosecution has proved the offence, under charge, against the accused beyond reasonable doubt. The learned trial Court, therefore, by its judgment and order, dated 27-11-1996, convicted the applicant/accused, for the offence punishable under sections 279 and 304-A of the Indian Penal Code and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs. 1,000/-, on each count and in default of payment of fine, he was further sentenced to undergo simple imprisonment for two months, on each count.

3.Being aggrieved by the judgment and order, passed by the learned J.M.F.C., Yavatmal, dated 27th November, 1996, the appellant preferred an appeal before the learned Sessions Judge, Yavatmal. The said appeal being Criminal Appeal No. 44 of 1996, came to be dismissed, by the learned Sessions Judge, Yavatmal vide order dated 27th July, 2000, relying again on the sole testimony of witness Devidas (P.W. 1).

4.Further, being aggrieved by the judgment and order, passed by the learned Sessions Judge, in Criminal Appeal No. 44 of 1996, the present applicant has approached this Court, by way of present revision application.

5.Heard, Shri S.D. Sirpurkar, learned Counsel, appearing on behalf of the applicant and Shri A.S. Sonare, learned Additional Public Prosecutor.

6.The learned Counsel for the applicant, has submitted that, the conviction based on the sole testimony of Devidas (P.W. 1), was not sustainable in law, as the said witness was not trustworthy. Shri Sirpurkar, further submitted that, the prosecution had also failed to place on record, the medical evidence or any other material, to establish that the applicant, was driving the vehicle under the influence of liquor. Shri Sirpurkar, therefore, submitted that the prosecution, had failed to prove the case, beyond reasonable doubt and as such benefit of doubt, ought to have been given to the applicant/accused.

7.In support of his submissions, Shri Sirpurkar relies upon the judgment of Orissa High Court in the case of (Penu alias Pannu Sethi v. State)1, reported in 1983(1) Crimes 876. In particular, he relies upon the following observations :-

"In order to establish criminal liability the facts must be such that the negligence of the accused went beyond a mere matter of compensation and showed such disregard for life and safety of others as to amount to a crime" Bharosi v. State. "In order to amount to criminal rashness or criminal negligence it must be found that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk of doing such an act with recklessness and in difference to the consequences."

8.Shri A.S. Sonare, learned Additional Public Prosecutor, vehemently supported the judgmen

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