This revision petition is directed against the appellate judgment and order dated 4.4.95 passed by Sessions Judge, Nagaon thereby affirming petitioner's conviction arid sentence under section 304A IPC as recorded by the trial Court, sentencing the petitioner to undergo six months simple imprisonment and payment of fine of Rs. 1000/-, or in default of payment of fine to suffer 15 days SI.

2. Briefly stated prosecution case was that on 14.9.90, Shri Kuseswar Saikia, a school teacher of Jangalbahu School was travelling by a mini bus and while reaching near Jangalbahu fishery at around 10 AM he got down from the mini bus and the bus left the place at once. In the meantime a tracker driven by the accused-petitioner bearing registration No.AXA 7319 coming from opposite direction at a high speed knocked him down causing injuries to his person. The injured was immediately removed to Raha Hospital initially and subsequently to Nagaon Civil Hospital for treatment where he succumbed to his injuries.

3. The accused was charged and tried for the above offence, he was found guilty by the trial Court who convicted and sentenced him as already noted above, the same has been affirmed on appeal, hence this revision petition.

4. Mr. Chowdliury, learned counsel appearing for the petitioner submitted that the evidence of PWs 5 and 6 who were examined as eye witneses to the occurrence, even if taken as it is, it does not make out the essential ingredients of the offence under section 304IPC. It was argued that the deceased made a sudden appearance on the centre of the road, taking a round of the bus from which he had alighted, in the circumstances the accused could not be held guilty.

5. Learned Public Prosecutor supported the conviction as proper.

6. Before proceeding further. I would like to note, that the evidence of PW 5 being in Assamese, a language not known to me, the counsel for the petitioner was requested to supply a translated copy which he did and the same has been approved as correct translation of the statement of PW 5. It is the agreed translation which I have taken into consideration when necessary.

7. In order to sustain conviction under section 304A IPC and to impose criminal liability under section 304A Indian Penal Code, it is necessary that the death should have been the direct result of a rash or negligent act of the accused, and that act must be the proximate and efficient cause, without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non. The main criterion for deciding, whether the driving which led to the accident was rash and negligent is not only the speed, but the width of the road, the density of the traffic and the attempt to overtake the other vehicles resulting in going to the wrong side of the road and being responsible for the accident. Even if the accident took place in the twinkling of an eye, it is not difficult for eye witnesses to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle travelling on that side of the .road. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution, must be culpable or gross and not the negligence merely based upon an error of judgment. Where a pedastrian suddenly crossed the road from West to East without taking note of the approaching bus, there was every possibility of his dashing against the bus without the driver becoming aware of his crossing till it was too late. The bus driver may not be in a position to save the accident however slowly he may be driving.

8. Applying the above tests and principles as enunciated by the Supreme Court in Shakila Khader vs. Nausher Gama, AIR 1975 SC 1324 and M.H. Lokre vs. State of Maharashtra, AIR 1972 SC 221. Let us examine the case at hand.

9. Whether the prosecution has established culpable negligence on the part of the accused petitioner? In this context, the eviden

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