M.L. Pendse, J.
1. The petitioner original accused is challenging the order of conviction dated May 17, 1980 recorded by the Judicial Magistrate, First Class, Sangola, convicting the petitioner for an offence punishable under sections 279, 337 and 427 of the Indian Penal Code and section 116 of the Motor Vehicles Act and sentenced to rigorous imprisonment for one month and fine of Rs. 50/-, in default, imprisonment of 15 days.
2. The order of conviction and sentence was confirmed in appeal by the II Additional Sessions Judge, Solapur by judgment dated April 30, 1981. The prosecution case is that the accused is working as a driver in the Maharashtra State Road Transport Corporation and on May 9, 1976 he was driving the bus MRR 8027 from Sangli to Akluj. After leaving village Shivane, the accused drove the bus at a very fast speed and gave a dash to the guard stones and thereafter dashed against a tree. The result of the accident was that the passengers in the bus received injuries and the bus was damaged to the tune of Rs. 1000/-. The information of the accident was received at Police Station Sangola and the accused was chargesheeted for having committed the offence of driving the bus rashly and negligently. The accused denied the offence and claimed that he was driving the bus at moderate speed and he was required to apply the breakers as certain goats suddenly came on the road and the result of the sudden application of the brake was that the bus dashed against the guard stones and the tree.
3. The trial Magistrate, after recording evidence, came to the conclusion that the accused was driving the bus at a high speed and was liable for conviction for the offence with which he was charged. That order was confirmed in appeal by the Additional Sessions Judge and that has given rise to the present revision application.
4. Shri Naik, the learned Counsel appearing in support of the petition, submitted that the evidence of the Mechanic Gade (P.W. 5) clearly indicates that the bus who not in sound mechanical condition. The left side plate was broken and the engine of the bus had left its place and has come to her rear. Witness Gade admitted in cross examination that if the left side plate is damaged, then there is possibility of an accident as the driver may not be able to control the bus. It is no doubt true that witness Gade has examined the bus after the accident but that fact itself is not sufficient to discard the statement of the accused that the bus was in a damaged condition when he took it over at Sangola. The two courts below observed that the accused should have stopped the bus by using the brakers as soon as it swerved to the left. The panchanama does indicate that the accused applied brake but it did not stop before giving dash to the guard stones. In cases of accidents it is always necessary to remember that as soon as the brakes are suddenly applied, the vehicle is likely to swerve and when a driver comes across some sudden obstacle on the road, the anxiety is to swerve to the left. On the fact circumstances of the case, it is difficult to hold that the explanation given by the accused is not a plausible one.
5. There is another aspect of the matter which also cannot be overlooked. The evidence on record as regards the speed at which the bus was driven is not very reliable. The passengers travelling in the bus had given conflicting versions as regards the speed of the bus. The Additional Sessions Judge realised that the witnesses did not give the speed of the bus in so many kilometers per hour but proceeded to rely upon the evidence of Janabai and Musa Maneri that the bus was initially driven at a slow speed and later at a fast speed. It is always dangerous to rely upon such evidence of the passengers because what is slow speed and fast speed depends upon the idea or notions about the speed and which various from person to person. Unless a passenger is conversant with the driving, it is difficult to rely upon the evidence of such a passenger to determine whether the bus was driven at fast speed or otherwise. The evidence indicates that the accident has taken place on a zig-zag road and it is unlikely that the driver could have driven the bus at such place at a high speed. In my judgment, the two courts below were not justified in accepting the evidence of the passengers that the bus was driven at a very high speed. If the bus was not driven at a high speed, then the mere fact that the accident has taken place would not lead to the conclusion that the accused was driving rashly and negligently. In my judgment, the conviction recorded by the two courts below cannot be sustained on the facts and circumstances of the case.
6. Accordingly, the petition succeeds and the rule is made absolute and the order of conviction recorded by the Judicial Magistrate, First Class, Sangola on May, 17, 1980 and the confirmation of the said order by the Second Additional Sessions Judge, Sholapur on April, 1, 1981 is set aside and the accused is acquitted and discharged of the offences with which he was charged. The bail bond of the accused stands cancelled. Fine, if paid to be refunded.