JUDGMENT : Misra, J. - The Petitioner was driving an Ambassador car (ORG 1181) at about 10.15 a.m. on 5-7-1962 from Khurda to wards Berhampur on the Madras Grand Trunk road. Near village Damasahi at a distance of about 2 miles from Khurda it dashed against a small boy aged 4 to 5 years. The boy was thrown to a distance of about 15 feet and was removed to the hospital where he died. Prosecution case is that the Petitioner was driving the car at a high speed in a rasp and negligent manner. 2. The defence is that at the place of accident, it was a straight road. The deceased with other children were crossing the road. The Petitioner blew horn and applied brakes, but the tyre of the rear wheel was punctured after the application of the brake. The carnet out of control and the front bumper of the car struck against the boy. 3. The trial Court found the Petitioner guilty under Sections 279 and 304-A, Indian Penal Code. He convicted him under both the sections and sentenced him to undergo simple imprisonment for four months and to pay a fine of Rs. 500/-, in default to undergo simple imprisonment for a further period of two months u/s 304, Indian Penal Code. No separate sentence was awarded u/s 270, Indian Penal Code. The Petitioner?s appeal before the learned Sessions Judge was dismissed. J. 4. Sections 279 and 304-A, Indian Penal Code, may be quoted. 279. Whoever drives any vehicle, or rides on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. 304-A. Whoever caused the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. In both the sections, either rashness or negligence constitutes an important ingredient. In The State of Orissa Vs. D. Suryanarayana, the following meaning of "culpable rashness and negligence" was taken from Ratanlal?s Law of Crimes (20th Edition) at page 799. In both the sections, either rashness or negligence constitutes an important ingredient. In The State of Orissa Vs. D. Suryanarayana, the following meaning of "culpable rashness and negligence" was taken from Ratanlal?s Law of Crimes (20th Edition) at page 799. Culpable rashness in acting with the consciousness that the mischief and illegal consequences may follow but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from action despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effects will follow but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from neglect of the civic duty of circumspection. The aforesaid analysis of culpable rashness and negligence correctly represents the legal concept. With respect I accept it. In the light of the aforesaid principle the facts of this case are to be tested. 5. The learned Sessions Judge upheld the conviction on the following finding. In my opinion, the car could not have been brought to a stop within a distance of 81', had not the tyre punctured. The skid mark would have been longer than 81', had there been no puncture. So the puncture of the tyre does not absolve the accused in any way. The accused failed to take th necessary precaution which was expected of him to slow do n the car and apply the brake sufficiently early when he noticed the boys. 6. Before examining the correctness of this finding, it is necessary to refer to certain undisputed evidence and facts (i) The road where the accident took place was a straight road and the car was on its left side and not on the wrong side at the time of accident. (ii) On the previous day it had rained and water had accumulated on the right side of the road towards Barhampur. (iii) Four children including the deceased were playing at the acculturated water. (iv) On seeing the car the children ran across the road from the right side to the left side. Three of the children could cross the road and the deceased somewhat wavered his steps on the road and was ultimately hit, by the car. (iii) Four children including the deceased were playing at the acculturated water. (iv) On seeing the car the children ran across the road from the right side to the left side. Three of the children could cross the road and the deceased somewhat wavered his steps on the road and was ultimately hit, by the car. (v) The Petitioner blew horn on seeing the boys. (vi) He applied the brakes to avert collision with the children. (vii) One of the rear tyres of the car punctured. (viii) The car halted at the place of accident and did not run over the deceased. The front bumper of the car struck the boy who was thrown to a distance of 15 feet. (ix) The vehicle was found in good condition by the Motor Vehicle Inspector (P.w. 8) in every respect. The vehicle could stop by half a paddle and the brake fluid was also intact. 7. Both the Courts below have found that the car skidded a distance of 81 feet before the accident took place. They accepted the evidence of the Motor Vehicle Inspector (p.w. 8) that the car was plying at a speed of 46 to 50 miles per hour when the brake was applied. Mr. Misra contended that this finding was based on inadmissible evidence and must be excluded from consideration. It is necessary to carefully examine this contention. The A.S.I. (p.w. 11) deposed. I visited the spot and examined witnesses. I prepared the spot map Ext. 9 is the spot map prepared by me. The spot map (Ext. 9) shows that the car skidded a distance of 81 feet before it stopped exactly at the place of accident. In his statement P.W. 11 does not say whether he prepared the spot map on his own knowledge as he found the skid mark on the spot or whether it was based on the statement of the witnesses made to him before he prepared the spot map. In 1962 S.C.D. 326, their, Lordships held that the sketch map would be admissible so far as it indicated all that the Sub-Inspector saw himself at the spot. In 1962 S.C.D. 326, their, Lordships held that the sketch map would be admissible so far as it indicated all that the Sub-Inspector saw himself at the spot. But any mark put on the sketch map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162, Code of Criminal Procedure, as it would be no more than a statement made to the police during investigation. In the absence of any statement made by P.W. 11 that the spot map was prepared on the basis of what he actually saw on the spot, the statement in Ext. 9 that the car skidded 81 feet before it come to a stop is inadmissible in evidence being based on the statements made by witnesses in course of investigation. The Motor Vehicle Inspector (p.w. 8) deposed. The car in question might have been plying at a speed of 46 to 50 miles per hour if it was stopped at a distance of 81 feet as stated in the letter of the officer-in-charge. Ext. 5 is my report...I have not taken any notice of skid mark at the spot as I was not required to do it. Thus P.W. 8 himself had no personal knowledge of toe existence of skid mark upto 81 feet on the spot. His knowledge is hearsay based on the letter of the officer-in-charge. This evidence being inadmissible, the further statement of P.W. 8 based on it that the car might be plying at the rate of 46 to 50 miles per hour before the brake was applied is based on no admissible evidence. The concurrent finding of the Courts below that the car skidded a distance of 81 feet and it was running at a speed of 46 to 50 miles per hour is without Evidence and must be ignored. 8. Some of the eye-witnesses said that the car was running at a high speed. But they clearly admitted that they had not seen the speed metre nor could they give the execrate. Both the Courts below did not place any reliance on their evidence to come to a conclusion that the car was running at a particular speed. The eye-witnesses are residents of neighbouring villages. The learned Standing Counsel did not rely on their evidence for determination of the exact rate of speed. 9. Both the Courts below did not place any reliance on their evidence to come to a conclusion that the car was running at a particular speed. The eye-witnesses are residents of neighbouring villages. The learned Standing Counsel did not rely on their evidence for determination of the exact rate of speed. 9. On the findings the prosecution has failed to prove that the car was being driven in a rash or negligent manner. The car was perfectly in good condition. The Petitioner blew the horn when the boys were running across the road. Brake was applied, but unfortunately one of the rear tyres got punctured. P.W. 8 admits that if the tyre punctures after the brake is applied the brake would not be as effective as it would be when the tyre punctures, first and I then brake is applied. On the aforesaid facts the defence of the Petitioner that he was driving the car at a reasonable speed and that he able horn and applied the brake when he found the children running across the road and that he could not have full control over the car, as after the application of the brake, one of the rear tyres got punctured, may reasonably be true. At any rate, the prosecution failed to prove beyond reasonable doubt rashness or negligence on the part of the Petitioner. It is unfortunate that the accident resulted in the death of an innocent child. The disastrous consequence cannot, however, substitute proof beyond reasonable doubt. 10. The conviction and sentence passed on the Petitioner are accordingly set aside. The revision is allowed and the Petitioner is directed to be set at liberty forthwith. Fines if paid must be refunded. Revision allowed. Final Result : Allowed