ORDER 1. The petitioner has challenged the correctness of the order of conviction passed by the C.J.M. Shivpuri, convicting him under section 304-A of I.P.C. and sentencing him to 1 year's R.I. and a fine of Rs. 1,000/- in default of payment of fine to further undergo R.I. for six months. On appeal preferred by the petitioner, the order of conviction and sentence was upheld by the appellate Court. 2. According to prosecution on 18.4.1984, at about 5.45 a.m. while deceased Jankidas was going towards Guna on cycle, after crossing the Chungi barrier, it is alleged that the petitioner at that relevant time came driving the truck No. MNT 3018 rashly and negligently and dashed against the cyclist as a result of which Jankidas died. The report of the incident was lodged by Radheshyam (PW 1), the son of the deceased. After the due investigation, the challan was filed. The petitioner abjured his guilt. 3. The trial Court relying upon the prosecution evidence convicted and sentenced the petitioner. The order of conviction and sentence was also maintained by the appellate Court as stated above. 4. Admittedly, no witness was present at the spot. The prosecution produced Narain Prasad (PW 2) and Ramesh Kumar (PW 3), who are stated to be sitting at a hotel near the spot with one Preetam (not produced). Out of the above witnesses, Narain prasad (PW 2) is stated to be running a tea stall and Ramesh Kumar was the Nakedar at the Municipal barrier. Preetam (not examined) was the peon posted at the barrier. According to these two witnesses, the deceased Jankidas had crossed the barrier and had gone about 150 paces away, when they heard the sound of a dash. It is, thereafter, alleged that the petitioner came to the barrier driving the truck. He had stopped the truck at the barrier and had gone to the police station. Out of these two witnesses Ramesh Kumar (PW 3) was declared hostile by the prosecution. There is no other witness, except these two witnesses to support the prosecution story that the accused-petitioner caused the accident by driving the truck negligently and rashly. 5. He had stopped the truck at the barrier and had gone to the police station. Out of these two witnesses Ramesh Kumar (PW 3) was declared hostile by the prosecution. There is no other witness, except these two witnesses to support the prosecution story that the accused-petitioner caused the accident by driving the truck negligently and rashly. 5. It is contended by the petitioner's counsel that it is only in the tort liability that a driver is required to prove that accident was not due to his rash and negligent driving, but in the criminal matters the prosecution remains under the duty to prove by positive evidence that the accident was the result of rash and negligent driving. Basing the argument on this cardinal principle of criminal justice, it is contended that there is absolutely no evidence in the case to establish that: firstly, it was the petitioner, who was driving the truck at the time of accident and secondly, that the alleged accident was the result of rash and negligent driving of the petitioner. The conviction of the petitioner for the alleged offence under section 304-A of I.P .C. could, therefore, not be based on the testimony of the two witnesses, namely, Narain Prasad (PW 2) and Ramesh Kumar (PW 3). 6. The counsel for the petitioner had referred and read out in Court the statements of Narain Prasad (PW 2) and Ramesh Kumar (PW 3). The witnesses have said nothing about the act of rash and negligent driving of the said truck by the petitioner. Merely, from the stated fact that the said truck was stopped at the Naka in a good speed, the presumption cannot be drawn that at the time of accident at the spot the petitioner had driven the truck rashly and also negligently, which resulted in the alleged accident. 7. It has been observed by their Lordships of the Supreme Court in Syed Akbar v. State of Karnataka (1970 SC 1848) that unless the prosecution had led the positive evidence to prove the rashness and the negligence, the mere accident would not lead to the presumption of rash and negligent driving. The maxim' res ipsa loquitur', will have no application to such cases. Their Lordships observed in Syad Akbar (supra) that: "..... The maxim' res ipsa loquitur', will have no application to such cases. Their Lordships observed in Syad Akbar (supra) that: "..... in criminal trial, the burden of proving every thing essential to the establishment of the charge against the accused always rests on the prosecution as every man is presumed to be innocent until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of mandatory presumption of negligence against the accused, where the accident "tells its own story" of negligence of somebody." 8. In view of the above, as there is no positive evidence in the instant case to prove that the petitioner's act in driving the truck was of rashness and negligence, which ultimately resulted in the accident, the petitioner cannot be convicted of the offence under section 304-A of I.P.C. 9. The revision petition, therefore, succeeds. Both orders of conviction and sentence, passed by the trial Court and continued by the appellate Court are set aside. The accused is acquitted of the charge. His bail and personal bonds shall stand discharged.