A. K. LAXMESHWAR, J. ( 1 ) THE above Criminal Revision Petition is directed against the order passed by the j. M. F. C. , Bhatkal, in C. C. No. 546/83 dated 30-9-1985 convicting the accused and sentencing him to pay a fine of Rs. 500/- and order dated 7-3-88 passed by the District and sessions Judge, Karwar, U. K. District in criminal Appeal No. 66/85, confirming the order of the Judicial Magistrate, First Class, bhatkal. ( 2 ) THE facts of the case in brief are: that the petitioner was an accused who was the driver of a bus bearing No. MEF. 9723 belonging to the M. S. R. T. C. has driven the same bus rashly and negligently in Bhatkal bus stand while taking the reverse of the bus with a result, a hamal by name Nagappa kulla Naik was caught in between a pole and the back of the bus and died subsequently. Therefore the police of Bhatkal, charge sheeted before the J. M. F. C. Bhatkal for an offence under Section 304-A of the Indian penal Code. ( 3 ) THE learned Magistrate, who tried the case after appreciating the evidence of the witnesses examining ihe documents produced by both the parties and after hearing both the counsel, convicted the accused for an offence punishable under Section 304- a and sentenced him to pay a fine of Rs. 500/- and in default of payment of fine he shall undergo simple imprisonment for a period of one month. Being aggrieved by the said order of conviction and sentence, the accused filed Crl. appeal No. 66/1985 in the Court of Sessions judge, Karwar (U. K. ). The learned Sessions judge after hearing both the parties dismissed the appeal and confirmed the order of conviction and sentence passed by the learned Magistrate. Being aggrieved by both the orders, the accused filed the above Criminal Revision petition challenging this conviction and sentence passed against him. The learned Counsel Mr. Kulkarni, appearing for the petitioner, submitted that both the courts failed to consider that the accident had taken place not due to rash and negligent driving. Both the Courts have not properly considered this aspect of the matter. Particularly evidence of PW. 8, the child witness, who was hardly of 13 years may not have worldly experience, particularly regarding rash and negligent driving. PW. Both the Courts have not properly considered this aspect of the matter. Particularly evidence of PW. 8, the child witness, who was hardly of 13 years may not have worldly experience, particularly regarding rash and negligent driving. PW. 4 has stated on oath that while taking the bus in reverse a driver cannot see what is behind the bus, generally conductor guides him by whistling. This witness has clearly stated and he has also said "while the driver was taking the bus in reverse direction and I was whistling. " He has also categorically stated that "the bus was coming reverse direction very slowly, when I whistled to stop, he stopped it. " The defence in the cross-examination tried to attribute negligence on the part of the conductor, who was guiding the driver. Mr. Kulkarni, learned counsel for the petitioner vehemently submitted that the accident has taken place, the mere accident is not a matter or a factor for convicting the accused, it must be due rash and negligence. The prosecution has to establish that the bus was being driven in a rash or negligent manner for which the learned Counsel submits this aspect has not been established by the prosecution. Therefore the accused is to be acquitted as his guilt is not proved by the prosecution. Therefore the learned counsel relies upon the decision of this Court in Raju p. M. v State of Karnataka (1977 (1) Kar. LJ. 260), wherein this aspect is clearly considered and followed in appreciating the evidence in such a case. "section 219 of the IPC refers to an act so rash or negligent as to endanger human life, or likely to cause hurt or injury to any other person. Thus, the offence could be imputed against the accused if his act was either rash or negligent. The two expressions 'rash' and 'negligent' have been well defined by Austin in his jurisprudence, Vol-I, 4th Edn, Page 444. The learned Author draws a distinction between negligence, heedlessness, and rashness which, though closely allied, are broadly distinguished by differences. In cases of negligence, the party performs not an act to which he is obliged. He breaks a positive duty. In cases of heedlessness or rashness, the party does an act from which he is bound to forbear. He breaks a negative duty. In cases of negligence, the party performs not an act to which he is obliged. He breaks a positive duty. In cases of heedlessness or rashness, the party does an act from which he is bound to forbear. He breaks a negative duty. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is thus an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. It was, therefore, to be seen by the two Courts below, if the criminal negligence imputed against the accused was due to failure on his part to perform a duty, so that it could be inferred that he was responsible to break the positive duty. " ( 4 ) RELYING on this decision the learned counsel submits that this aspect has been completely ignored by both the courts below. When we refer to the evidence we see that the conductor was whistling and giving instructions on guiding the driver, who was taking the bus in reverse. According to him, the bus was going very slowly in the reverse direction. Therefore it cannot be said that the driver was rash. The word speed may differ from place to place and other attending circumstances, a speed of 50 Kms. per hour cannot be a speed but even a speed of 5 kms. per hour may be a speed which can be attributed to rashness. But in this case according to the conductor and other witnesses, he was taking the bus in a reverse direction slowly and he was very scrupulously following his instructions. When he whistled to stop, suddenly the driver stopped it. ( 5 ) THEREFORE neither the rashness nor the negligence attributed of the driver, in that case. But in this case according to the conductor and other witnesses, he was taking the bus in a reverse direction slowly and he was very scrupulously following his instructions. When he whistled to stop, suddenly the driver stopped it. ( 5 ) THEREFORE neither the rashness nor the negligence attributed of the driver, in that case. Section 304-A of IPC reads as under:" Causing death by rash or negligent act who ever caused the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punish with imprisonment of either description for a term which may extend to two years, or with fine, or with both"the learned counsel Mr. Kulkarni submits that he does not constitute an offence, when the rashness or negligence or both of the driver. Therefore the decision relied upon by the learned counsel is applicable in the present case. Therefore I am of the opinion that there is some force in the contention as against the argument advanced by mr. Kulkarni. The learned S. P. P. submitted that both the courts below have considered and held that the offence alleged against the accused. Therefore, both the judgments and orders of conviction are not sustainable in law. In the circumstances and, discussion made above both the courts, orders of conviction and sentences are liable to be set aside. In the result Criminal Revision Petition is allowed. The orders of conviction and sentence of both the courts below are set aside. Bail bond stands cancelled. If the fine is paid it may be refunded to the petitioner. --- *** --- .