( 1 ) THE petitioner has been concurrently found guilty of the offence punishable under Sec. 304a of I. P. C. for causing death of a ten year old girl by rash and negligent act of driving a motor bus. He has been awarded R. I. for six months and a fine of Rs. 1 0 in default R. I. for two months.

( 2 ) THIS matter was argued at length by the learned Advocate for the petitioner Mr. S. M. Shah. Thereafter the petitioner field Criminal Miscellaneous Application No. 2277 of 1987 through Advocate Mr. H. M. Chinoy and that application in really speaking an application in support of the revision application elaborating grounds and arguments. There is no independent or substantive prayer which is not covered by the revision application. Therefore both these applications are heard and disposed of together.

( 3 ) THE incident had occurred on 28-2-1984 in the afternoon at about 5-00 p. m. on the National Highway between Ahmedabad and Baroda on the outskirt of village Boriyavi. The accused was driving a State Transport Passenger Bus. The bus was proceeding from north to south on a tar road which is 22 wide with 9 kutcha shoulder on each side. Thus the total width of the road is 40. The bus was proceeding on its correct side i. e. eastern side and the incident took place on the extreme western side kutcha shoulder i. e. on the utter wrong side and a ten year old girl was rushed under the rear wheel and died. There is no dispute on these facts. They are also established by the evidence of the panchanama Ex. 9 which is proved by the evidence of panch witness Ranabhai Ex. 8. The panchanama shows that there are fresh wheel marks (not brake marks) of 20 from south west and of 30 from north west. The above facts are also established from the oral evidence of the eye witnesses Ramilaben Ex. 6 who is the mother of the deceased girl and Ex. 7 Nirabhai who is not related to the complainants side nor having any enmity with the accused.

( 4 ) THE only question that arises is whether there was any negligence or rashness on the part of the driver. The above facts are eloquent and they speak for themselves. The defence of the accused is that the girl had suddenly entered the road from the eastern side and was crossing the road and going towards the western side and in order to save the girl the driver had taken the bus to the wrong side and the girl dashed with the rear left side of the bus and came to be crushed under the wheels. Both the lower Courts have considered this defence and found that there was no evidence about the girl having suddenly entered the road and attempting to cross it. There was only a suggestion made in the cross examination of the eye witnesses and they have denied it. The eye witnesses have stated that the girl was not crossing the road and she was on the other side of the road. It is to be noted that the road is of a width of about 40 including 22 feet pakka tar road. If the girl had suddenly entered the road she could not have proceeded upto the other extremity of the road by crossing about 30 by which distance and time the bus dashed with her on the wrong side of the road. It was day time and the driver had unobstructed view and the driver could have easily seen the girl if she was entering the road when the bus was approaching on its correct side and it is the defence of the driver that he had seen the girl and therefore taken the bus to the wrong side to save her. That means that the ten year old girl could cross more than 30 feet before the bus dashed with her. By that time the bus must have crossed more than five times the distance crossed by the girl i. e. about 150 feet. Thus there was sufficient distance time and opportunity for the driver to stop slow and to take the bus to the extreme of his correct side i. e. eastern side and there was no need whatsoever to go to utter wrong side. This story and defence of the girl having suddenly entered the road to cross the road is totally improbable. The mother of