The main legal point established in the judgment is the necessity of proving the cause of death and establishing rash and negligent driving beyond reasonable doubt, emphasizing the burden of proof on the prosecution.

JUDGMENT :

Heard learned counsel for the parties.

2. This revision application is directed against the judgment dated 26.7.2004 passed by learned 4th Additional Sessions Judge, Palamau, Daltonganj in Criminal Appeal No.102/2000; whereby the judgment of conviction and order of sentence, both dated 21.8.2000, passed by the learned Judicial Magistrate, 1st Class, Daltonganj corresponding to G.R. No.25/94 in Trial No.351/2000; whereby the petitioner was convicted u/s 279, 337, 338, 304A IPC and was sentenced to undergo S.I. for Six months each for the offence under Sections 279, 337 IPC, and to undergo two years S.I. each for the offence under Section 338 and 304A IPC and the sentences were ordered to run concurrently, has been partly modified. The appellate court has partly allowed the appeal by modifying the judgment to the extent by acquitting the petitioner for the offence under Sections 337 and 338 IPC; however, sustained the conviction for the offence under Sections 279 and 304A IPC.

3. The prosecution case in short is that informant Mukesh Pandey and Sanjay Pandey proceeded from their house to go to Daltanganj and Ranchi when they reached main road, they saw that Niraj Bus was coming from the side of Garhwa at high speed. Sanjay Pandey gave signal with his hand to the bus driver to stop the bus, but as the bus driver was plying the bus in high speed rashly/negligently, the bus dashed into Sanjay Pandey and he fell down and sustained grievous injuries on his head and leg. After some time, he succumbed to injuries.

On the basis of the written report, the instant case was registered and after investigation police submitted charge-sheet. Accordingly, charge was framed against the accused person for which he pleaded not guilty and claimed to be tried and finally he was convicted.

4. Mr. Sidharth Roy, learned counsel for the petitioner opposed the trial court judgment by submitting that though admittedly two persons died, however, so far as victim no.1 - Sanjay Pandey is concerned; the doctor has given specific report to the extent that the injury was due to hard and blunt weapon. Relying upon that opinion of the Doctor, learned counsel contended that if at all there was a rash and negligent driving by the petitioner there cannot be injury by hard and blunt weapon.

It is also not the case of the prosecution that due to inadvertence of the doctor word weapon has been mentioned because the doctor has been duly cross-examined and tested in the examination.

He further submits that so far as victim no.2 is concerned; the so-called eye witness P.W.3, who is the husband of the victim no.2, though supported the case but admitted in cross-examination that due to noise he fainted and he could not see what happened thereafter. Further, the post-mortem report of victim no.2 cannot be said to be proved as per the prescribed procedure by examining the doctor who conducted post-mortem; thus the petitioner deserves benefit of doubt. Relying upon the grounds learned counsel prays for acquittal.

5. Learned APP opposed the prayer made by the petitioner and submits that it was rash and negligent driving and both the victims died due to rash and negligent driving of the petitioner; however he could not defend the lacuna in the prosecution case, inasmuch as, though post-mortem of victim No.2 was conducted which alleged to arise due to subsequent accident but the said post-mortem report was never proved by the concerned doctor by his oral evidence.

6. Having heard learned counsel for the parties and after going through the judgments passed by the courts below including the LCR it appears that on 4.01.1994 at about 5 a.m. the informant and Sanjay Prasad proceeded from their house to go to Daltonganj and Ranchi. When they came at Pakka road, one bus was coming from the side of Garhwa in high speed. Looking to the bus, Sanjay Pandey gave a signal to stop the said bus. It is alleged that the driver was plying the bus in high speed and dashed into Sanjay Pandey who