Judgement

GROVER, J.:- This is an appeal by special leave from an order of the Patna High Court dismissing in limine the revision petition filed against the decision of the Courts below convicting the appellant under Sections 304-A and 279, Indian Penal Code, for which a sentence of one year s rigorous imprisonment was imposed under the first charge. No separate sentence was imposed under the second charge.

2. The case of the prosecution briefly was that on July7, 1966 at about 7 p.m. the appellant was driving a bus on a kacha road from Chanudari side to Khargdiha. On the roof of the bus certain corrugated iron sheets were kept. Owing to driving at a high speed there was too much of jolting with the result that some of the iron sheets fell down and hit Latif on the head and also injured some other persons who were going on that road. Latif was admitted as an indoor patient in the Giridh Hospital where he was taken by the appellant in his bus. He, however, died on August 5, 1966.

3. The first information report was recorded at the hospital at 9. A.m. on July 8,1966. This report was based on the statement of Mohd. Hanif who appeared as P. W. 2. Hanif had also received an injury which was described in the report as injury on his neck towards the right side. He had been brought along with Latif to the hospital by the appellant, in the bus. According to the medical evidence Latif who was examined at 10 p.m. on July 7, 1966 had two head injuries and one injury on the lip. All these injuries were lacerated wounds: one of the head injuries and the injury on the lip were simple while the third injury which was on the head was grievous in nature. The post mortem examination was held on August 5, 1966. "On dissection pus and granulation tissues were found in and around the tissues. Anterio cranial fossa was full of pus. The meanings in the anterial cranial fossa had almost been eaten away by the purulent matter. The rest meanings and brain matter were congested."

4. The charge which was framed by the trial Magistrate was based solely on the act of rash and negligent driving thereby endangering human life and also causing the death of Mohd. Latif. P.W. 2 Mohd. Haniff on whose statement first information report had been recorded was considered by the trial Magistrate to have been won over because, according to the first information report, the bus was going on high speed whereas in his statement in Court he stated that he was, not in a position to see by which thing he was struck P.W. 4 Mohd. Usman, who was the main witness on whom the Courts have relied, deposed that it was a dark night and on seeing the light of the bus Mohd. Saleem on whose cycle he was sitting went towards the left side. The bus was going fast. Saleem received injury on his right hand. Hanif and Latiff were also injured. The bus was stopped. Latiff was conscious. Latiff told him that he had been injured with a corrugated iron sheet. According to his statement there were 10 or 15 passengers in the bus. It is unnecessary to name the other witnesses because they were either not believed or were declared hostile.

5. We are wholly unable to understand how any conviction could be upheld on the material which was placed before the Court by the prosecution. It is significant that there was no trace of the corrugated iron sheets and the Investigating Officer made no mention of any attempt on his part to find them or discover them nor did the prosecution care to find out who the owner of the bus was and who had loaded the iron sheets. This part of the evidence was very material because unless the driver could be held to be entirely responsible for loading the iron sheets and putting them in a negligent manner or not tying them properly it is difficult to sustain his conviction under Section 304-A of the Indian Penal Code. Nor could he be convicted for rash driving under Section 279, Indian Penal Code, because there is hardly any evidence worth the name from which it could be inferred