The prosecution must prove the accused's rash and negligent driving beyond a reasonable doubt, and the burden of proof shifts when the accused offers an explanation for the circumstances of the accident.

1. The criminal revision is filed by the accused against the judgment of conviction made in C.A.No.33 of 2007 on the file of the Principal District Court, Namakkal confirming the judgment of conviction made in C.C.No.421 of 2004 on the file of the Judicial Magistrate No.I, Namakkal. The petitioner is charged for the offence under Section 304 (A) IPC by saying that the accused had at 9.50 a.m. on 08.10.2004 drove the bus bearing Registration No.TN 28 L 6670 rashly and negligently and caused the accident by dashing against one TVS 50 moped resulting in fatal injuries to two persons riding in the moped leading to their death.

2. The prosecution in order to prove the guilt of the accused examined the defacto complainant, eye witnesses, mahazar witness, Post mortem doctors and the police officials who received and registered the complaint and FIR and inspector of police who conducted the investigation and the Motor vehicle inspector as P.Ws 1 to 12 and has produced Exs.P1 to P.13 documents. The trial Court has on the basis of the materials found that the accident is caused solely by the rash and negligent driving of the accused and has convicted and sentenced him to undergo imprisonment and to pay fine. Aggrieved against the same, the accused preferred the appeal before the Appellate Court. The Appellate court has, by judgment dated 03.08.2007, confirmed the judgment of the trial Court and hence, this criminal revision by the accused before this Court.

3. The learned counsel for the accused has by relying upon the categorical statement made by the prosecution side witnesses about the physical features available on the scene of occurrence and the efforts made by the driver of the vehicle to divert the vehicle to opposite side to avoid the accident contended that the driver of the vehicle is not solely responsible for the accident and the accident is caused mainly due to the act of the TVS 50 moped rider in entering the main road from the branch road without verifying the traffic on the main road and due to the existence of the standing tree which blocks the vision of the road at the junction of the main road and the branch road. It is further argued by the learned counsel for the petitioner that the Rule Resp Ipsa Locquitur is not applicable to the criminal proceedings where the liability is always on the prosecution to prove the rash and negligent act of the driver and on the failure of the prosecution to prove the same, the lower Courts ought to have released the petitioner from the charges levelled against him. The learned counsel for the petitioner also cited authorities of the Supreme Court reported in 2001 (2) MWN (Cr.) SC 77 in Mohammed Aynuddina alias Miyam V. State of Andhra Pradesh; 2001(2) MWN (cr.) 249 Sekar V. State by S.I. of Police, Ethapur, Salem District; AIR 1972 SC 221 Mahadeoharilokrs V. State of Maharashtra and 2007 CrLJ 475 B.C.Ramachandra S/o Chikkashetty V. State of Karnataka by Channarayapatna Town Police rep. by S.P.P. of High Court of Karnataka, in support of his contention in this regard.

4. Heard both sides.

5. The perusal of Ex.P.8 Rough Sketch reveals that the bus was coming from Namakkal to Thiruchengodu East West main road and the TVS 50 moped was coming from Athiyappampalayam branch road in the South of the East West main road and the accident is caused just at the junction of the main road and the branch road and the bus was, after the accident, dragged on to nearly 70 feet on the opposite side and dashed against one standing the Karuvelam tree on the Northern side and stopped.

6. The prosecution has examined P.Ws.1 to 4 and P.W.9 as eye witnesses of the accident. P.W.1 who is the defacto complainant, is none other than the grandson and son of the deceased respectively and P.Ws.2 and 4 are purported to be the eye witnesses of the accident. Out of the five eye witnesses, it is true that the P.Ws.1 and 3 have deposed that the bus came rashly and dashed against the TVS 50 moped, but P.W.2 has in