JUDGMENT : A. Pasayat, J. - Revisional order passed by learned Additional Sessions Judge, Balasore upholding the conviction of the Petitioner u/s 279 of the Indian Penal Code (for short 'the Code') while setting aside the conviction and sentence under Sections 337 and 304-A of the Code is the subject-matter of challenge in the present case. 2. The material facts, in brief, are that the Petitioner was allegedly driving a loaded truck bearing - registration No. ORB 2126 on Jaleswar Batagram road and near the Nempo bridge the truck capsized causing injuries to several occupants of the truck and one of the occupants succumbed to injuries. The then Assistant Surgeon of a local hospital of Jaleswar lodged a written report before the Officer in charge of Jaleswar Police Station about the occurrence and on the basis of the said report investigation was undertaken and after completion of the investigation, the Investigating Officer submitted charge-sheet against the Petitioner. 3. In his evidence the Petitioner took the stand that he was innocent and that he had been falsely implicated in the case. 4. Some witnesses were examined in support of the prosecution case while the Petitioner did not choose to examine any witness. 5. On consideration of the evidence it was held by the learned Judicial Magistrate, First Class, Jaleswar that the Petitioner was guilty under Sections 279/337/304-A of the Code and was sentenced to undergo rigorous imprisonment for one year u/s 304-A and rigorous imprisonment for three months on each count under Sections 279/337 of the Code. The sentences were directed to run consecutively. 6. The judgment of the trial Court was assailed in appeal and the learned Addl. Sessions Judge, Balasore came to hold that the Petitioner was not liable u/s 337/304-A of the Code since there was no nexus between his alleged rash and regligent driving and the injuries caused and the resultant death of one of the injured persons For coming to this conclusion the appellate Court took into consideration the fact that the occupants of the truck jumped from the truck when it was about to capsize. It, however, held that the conviction u/s 279 was to be confirmed and maintained. 7. The appellate order as aforesaid is assailed in this case. It, however, held that the conviction u/s 279 was to be confirmed and maintained. 7. The appellate order as aforesaid is assailed in this case. Before considering the respective contentions raised, I would like to highlight some of the factual findings which would have some bearing on the ultimate decision of the case. Even though there was a faint attempt to suggest that the Petitioner was not the driver of the vehicle the unimpeachable evidence clearly established that the Petitioner was driving the vehicle in question. The vehicle was being driven at a speed of about 40 kilometres per hour at the relevant time, The road on which the vehicle was proceeding was a narrow road and had been rendered slippery on account of heavy rain on the previous night. 8. Mr. S.K. Mund, learned Counsel appearing on behalf of the Petitioner, strenuously urged that the conclusions arrived at by the Courts below are not tenable and are not legally sustainable. He mainly highlighted the conclusion of the appellate Court to the effect that the manner in which the vehicle capsized and the cause for it was within the special knowledge of the driver-Petitioner and therefore, u/s 106 of the Evidence Act the burden lay on him to prove that there was no culpability attached to his action and since the Petitioner denied to have driven the vehicle in question, the conviction u/s 279 was imperative. He further submitted that the very fact that the vehicle was driven rather at a slow speed or 40 K.Ms. per hour itself gives lie to the prosecution case that the vehicle was driven in a rash and negligent manner attracting conviction. The onus is always on the prosecution and Section 106 of the Evidence Act has no application at all. The evidence of the prosecution witnesses leaves no scope for any doubt that there was no rash and negligent act by the Petitioner which rendered his action culpable. He particularly referred to the replies given in cross-examination by P.Ws. 3 and 4. The learned Addl. Standing Counsel for the State submitted that the very conduct of the Petitioner in denying to have driven the vehicle itself shows a guilty mind and speed is not determinative of the question of rashness and negligence and it would depend on the location and place where the vehicle was being driven. 9. 3 and 4. The learned Addl. Standing Counsel for the State submitted that the very conduct of the Petitioner in denying to have driven the vehicle itself shows a guilty mind and speed is not determinative of the question of rashness and negligence and it would depend on the location and place where the vehicle was being driven. 9. Having heard the learned Counsel for the parties and on consideration of the evidence on record, I find that the approach of the Courts below are not in accordance with the requirements of law. Section 279 along with Sections 280 and 284 to 289 deals with public nuisance affecting public safety. In all the said sections, the offences are due to criminal rashness or negligence. It is sufficient if the carelessness is such as does cause, or is likely to cause injury. Mere rashness or negligence (except in the case of negligence u/s 281 and of rashness or negligence u/s 283) under the various circumstances is rendered punishable by Sections 279 to 289, quite irrespective of any injurious consequences. The essence of the offence is the possibility or likelihood of injury. If hurt is caused by reason of one of these offences, the offence falls u/s 337. If death is the result the offence is punishable u/s 304-A. Section 279 deals with rash or negligent driving or riding on a public way and it takes into account the potential danger or possibility or danger to life or injury to persons on account of the rash or negligent driving or riding by an accused. The word 'injury' in this section would denote any harm whatever illegally caused, to any person in body, mind, reputation or property. Therefore, negligent or rash driving which may cause harm to the property of a person, is covered in this section. To constitute an offence u/s 279, the following essential ingredients must exist (i) there must be rash or negligent driving or riding; (ii) it must be on a public way; and (iii) the driving or riding must be in a manner, so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any person other than the driver. See Raghunath Behera Vs. State of Orissa, . See Raghunath Behera Vs. State of Orissa, . For a conviction u/s 279, the manner, in which the driving or riding is performed must be rash or negligent, Rashness and negligence are not the same' things. Mere negligence cannot be construed to mean rashness. There are degrees of negligence and rashness In order to become criminal rashness or criminal negligence it has to be found that the rashness has been of such a degree as to amount to taking hazard, knowing that the hazard was of such a degree that the injury was most likely consequence. Negligence is 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 Culpable negligence is acting without the consciousness that dangerous consequences are likely to follow. A culpable rashness is acting with the consciousness that dangerous consequences may follow, but with the hope that they will not follow, and even with the belief that sufficient precautions had been taken to prevent happening of such consequences. If the possibility of danger emerging is reasonably apparent, then to take no precautions is negligence, but the possibility of danger emerging is only a mere probability which may not occur to the mind of a reasonable man. There may be cases where no negligence can be attributed even though requisite precautions have not been taken. In case of negligence, the party does not do an act, which he is bound to do because he adverts not to it. In case of rashness, the party does an act and breaks a positive duty. In determining whether a person is negligent or rash, the standard of reasonable care is that which is reasonably to be demanded in the circumstances. What is rash and negligent driving would depend upon the facts of each case. The mere fact that the vehicle was not being driven at a high speed is no evidence of cautious driving. This view was expressed by this Court in the case Haraprasad Jena v. State reported in 33 (1967) CLT 882. A speed of 40 K.Ms. per hour may not be considered high in a deserted road. But it would be certainly a high speed in a busy and crowded road. This view was expressed by this Court in the case Haraprasad Jena v. State reported in 33 (1967) CLT 882. A speed of 40 K.Ms. per hour may not be considered high in a deserted road. But it would be certainly a high speed in a busy and crowded road. Merely because a person has been run over or some persons have been injured is not a determinative fact to come to the conclusion that there was rash or negligent driving. u/s 279 the rashness or negligence if alleged must be shown to be criminal rashness or criminal negligence. Before an accused can be convicted of an offence under this section, there must be something more than a mere error of judgment or mere carelessness or mere negligence, because law distinguishes between negligence, which originated a civil liability and one the consequence of which is a criminal prosecution. Criminal negligence is gross and culpable neglect or failure to exercise that reasonable and proper care 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. This was the view expressed by the Karnataka High Court in the case of P.M. Raju v. State of Karnataka reported in P.M. Raju Vs. State of Karnataka. To me this appears to be fair exposition of the position in law. To establish an offence u/s 279, as aforesaid, the prosecution has to establish certain ingredients as indicated by this Court in the case of Raghunath Behera (supra). The onus is on the prosecution to establish beyond reasonable doubt that the vehicle was being driven in a rash and negligent manner. As held by this Court in the cases of Trinath Panigrahi v. State and Bijuil Swain v. State of Orissa reported in 41 (1978) CLT 245 and Bijuli Swain Vs. State of Orissa, respectively the prosecution has to establish the guilt beyond reasonable doubt about such rashness or negligence, Where the Court is not able to get a clear picture as to how the accident occurred, the accused is entitled to the benefit of doubt. In the instant case, by an erroneous approach the Courts below have found thee the Petitioner is guilty of the offence u/s 279. In the instant case, by an erroneous approach the Courts below have found thee the Petitioner is guilty of the offence u/s 279. In view of the position of law as elaborated by me above, the conviction cannot be maintained. The prosecution witnesses have thrown no light no the requisite pre-conditions for establishing the criminal rashness or criminal negligence. There was fiat even any oblique suggestion to them in the examination-in-chief about this particular aspect. Though suggestions were made by defence to the prosecution, witnesses that they were not aware of the sort of negligence due to which the accident took place the same cannot be utilised by the prosecution to suggest that negligence was accepted but the type of negligence was being disputed. 10. In the result, the revision is allowed and the orders of the Courts below are set aside. Final Result : Allowed