ORDER R.S. Garg, J. 1. The applicant being aggrieved by the judgment dated 23rd March, 2001 passed in Criminal Appeal No. 326/99 by the learned Sessions Judge, Raipur, confirming the conviction of the applicant under Section 304A read with Section 201, IPC recorded by the learned Judicial Magistrate, First Class, Raipur in Criminal Case No. 349/98 on 3-8-99, has filed this revision petition. 2. It is to be noted that the learned Trial Judge after convicting the applicant under Section 304A, IPC awarded 1 1/2 years R.I. and imposed fine of Rs. 1,000/- and in default of payment of fine to undergo further R.I. for three months and, awarded six months R.I. and imposed fine of Rs. 500/- and in default of payment of fine to undergo further R.I. for one month, for offence under Section 201, IPC. But the learned Appellate Court, partly allowed the appeal; while up-holding the conviction, the learned Sessions Judge reduced the jail sentence awarded under Section 304A, IPC from 1 1/2 years to 1 year and 6 months to 3 months for offence under Section 201, IPC; but maintained the imposition of fine for each offence. 3. The prosecution case in brief is that the applicant/accused did not possess regular/permanent driving licence but was carrying a learner licence. On 9-9-94, the accused/applicant brought out her Fiat NE Car from her house on the main road in the reverse gear and while proceeding on the main road dashed a scooter which was being driven by the deceased-Sanjeev; as a result of which the deceased suffered grievous injuries and the pillion rider who was also carrying a gas-cylinder in his lap suffered certain injuries. Immediately therefore, the deceased was taken to a nearby clinic, from where he was taken to D.K. Hospital; but before any assistance could be provided to the deceased, he died. Dehati Nalishi was lodged by P.W. 1 Kishore Kumar Jaiswal. After receiving the information the police proceeded with the investigation, prepared the memo of dead-body, seized the scooter, the said Fiat NE Car, driving licence carried by the accused, prepared spot-map, registered the F.I.R., the statements of the witnesses were recorded and the post-mortem report was also obtained. After completing the investigation, the police agency filed challan before the Competent Court, The accused denied the commission of the offence, therefore, was put to trial. After completing the investigation, the police agency filed challan before the Competent Court, The accused denied the commission of the offence, therefore, was put to trial. The learned Trial Court convicted and sentenced the accused as referred to above, therefore, the accused took-up the matter in appeal. The Appellate Court while maintaining the convictions, reduced the jail sentences as detailed above, therefore, the accused has come to this Court. 4. Shri Prashant Mishra, learned counsel for the applicant submits that from the statements of P.W. 1 Kishore Kumar and P.W. 3 Damru Dhar Nayak, it does not appear that they had witnessed the incident or could identify the driver of the offending vehicle. It is also submitted by him that from the Dehati Nalishi (Ex. P-l) it does not appear that the accident occurred when the vehicle was proceeding in the reverse gear or in the forward direction. According to him, the evidence available on the record would show that the scooter was hit from the right side bumber which would show that the alleged accident did not take place as narrated by the witnesses. He also submitted that non-mention of the name of the accused either in the FIR or in the case-diary statement of another alleged witness Damru Dhar Nayak (P.W. 3) would clearly show that they were not the eye-witnesses and in any case they are unable to fix the identity of the driver. He further submits that non-examination of the pillion rider and non-seizure of the gas-cylinder also speak against the prosecution because the pillion rider would have been the best witness to give the details of the accident. He submits that from the evidence; it would clearly appear that the car had hardly moved 5 mtrs. which would mean that the car was not in excessive speed and there is no ground available to the prosecution that the driver of the vehicle was either rash or negligent. It is also contended by him that principle of res ipsa loquitur can not be applied in general to a case of criminal rashness or criminal negligence because the standard of proof in a criminal case to fix the liability of an accused is much stronger than in a case of civil liability, which has to be fixed and decided under the law of tort. 5. 5. Shri Deep Kesharwani, learned counsel for the Sate on the other hand submitted that identity of the accused is properly fixed in the matter, but if the accused was put for identification that could provide better evidence in favour of the prosecution. In relation to the pillion rider who was examined by the police under Section 161, Cr.P.C. but was not examined in the Court as a witness, he submitted that his examination could provide better evidence, but even absence of his examination would not be sufficient to give a dent to the prosecution case. He also submitted that non-seizure of the gas-cylinder would not affect the prosecution case. It was contended by him that from the statements of the witnesses, it would clearly appear that the accused drove the vehicle rashly/negligently and caused the accident. Relating to the identity of the accused it is submitted by him that the accused was rightly identified on the spot and as the two Courts have relied upon the statements of the witnesses, there is no scope for any interference, in the present matter. 6. I have heard the parties at length and have gone through the records. 7. Dehati Nalishi Ex P-1 was lodged by Kishore Kumar P.W. 1. The said Kishore Kumar happens to be maternal uncle of deceased Sanjeev. The FIR says that the deceased was going on a scooter to bring a gas-cylinder, but near D.E.O. office one white colour Fiat NE Car which was being driven by the driver negligently and with excessive speed hit him. The said scooterist suffered grievous injuries on his chest and abdominal region. The injured was brought to the D.K. Hospital for his medical treatment where he died. The Dehati Nalishi further says that the vehicle number was M.P. 23/1644. This Dehati Nalishi has been proved by P.W. 1 Kishore Kumar. It is to be seen from the Dehati Nalishi that it docs not mention even a single word that the accused was driving the vehicle or some woman was occupying the seat of the driver. 8. P.W. 1 Kishore Kumar Jayaswal in Paragraph 1 of his statement has stated that the accused was driving the vehicle in reverse gear and hit the deceased from the front side of the vehicle. 8. P.W. 1 Kishore Kumar Jayaswal in Paragraph 1 of his statement has stated that the accused was driving the vehicle in reverse gear and hit the deceased from the front side of the vehicle. If this statement is accepted to be correct, then accident would become impossible because the vehicle was going in the reverse gear and in any case it could not hit anybody from the bumper side or front side of the vehicle; rather it would appear that somebody dashed the car from the front side. He also stated that the vehicle over-run the deceased, as a result of which he died. Claiming himself to be an eye-witness, he further stated that he took Sanjeev to the nearby clinic of Dr. Agarwal and from there to D.K. Hospital and at D.K. Hospital the said Sanjeev was declared dead. He had also stated that the deceased was taken to the hospital in the car of the accused; in the same breath, he says that he came back to the spot and in the meanwhile, the accused had removed the vehicle and washed the road and car and affixed a plate showing "L" (learner) on the vehicle. In the cross-examination, he clearly admitted that Scooter was driven by Sanjeev and the pillion rider was carrying a gas-cylinder in his lap. It is to be seen from the records that the statements of said pillion rider were recorded by the police, but he was not examined as a witness in the Court. What would be the effect of non-examination of pillion rider would be seen at the later stage, but the fact remains that somebody was sitting as a pillion rider having gas-cylinder in his lap. He further stated that at the time of the accident he was at the public square of the D.E.O. office. He also admitted that his office is not at the said place nor his official work was going on near the D.E.O. office. Being confronted with his case-diary statement, he stated that he informed the police that he was at the public square; but if the fact was not available in Ex. D-1 he was unable to give any reason. He also admitted that his office is not at the said place nor his official work was going on near the D.E.O. office. Being confronted with his case-diary statement, he stated that he informed the police that he was at the public square; but if the fact was not available in Ex. D-1 he was unable to give any reason. When he was required to explain the absence of details of the driver, especially the present applicant, he stated that he did inform the police at the time of the lodgment of the report that the vehicle was being driven by one woman of Baradia family. It is to be seen here that the Dehati Nalishi bears the signatures of this man and the said Dehati Nalishi is conspicuously silent in relation to the details of the driver. The witness, however, stated that as he was busy in lifting the body of the injured, he could not look into the fine details. He also stated that prior to the accident, he had not seen the accused, but has seen her only after the accident. In the cross-examination, he further stated that on a thela he was having a betel (Pan) and accidentally seen towards the vehicle. He heard the sound of accelerator raise, therefore, he had seen towards the vehicle. Unable to give positive picture of the scene, he stated that Sanjeev might have crossed and at the time the accused must have dashed him. He was unable to give the details as to how the accident happened. He was positive in his statement when said that the offending vehicle proceeded only 5 mtrs. He did say that he informed the police that the accused was driving the vehicle in reverse gear and hit Sanjeev from the front side of the vehicle, but he was unable to give any reason' for absence of such statements in case diary statement Ex. P-1. 9. Shri Prashant Mishra, learned counsel for the applicant says that from the conduct of this man it would clearly appear that he had reached the clinic of Dr. Agrawal after receiving the information of the accident, but is trying to project himself as an eye-witness. For this submission, Shri Mishra places reliance upon the statement of this witness where the witness has stated that when he reached the clinic of Dr. Agrawal after receiving the information of the accident, but is trying to project himself as an eye-witness. For this submission, Shri Mishra places reliance upon the statement of this witness where the witness has stated that when he reached the clinic of Dr. Agrawal, people were bringing out the dead-body of Sanjeev. Shri Prashant Mishra submits that it is not expected of a maternal uncle that he would not go to the clinic with the injured and would reach the said clinic after five minutes. The witness further stated that immediately after the accident, plate bearing letter "L" was affixed on the vehicle, but this fact is missing in Ex. D-1. Regarding washing of the road and vehicle, he stated that this fact was informed by him to the police and he was unable to give any reason regarding absence of this fact in his police statement. Shri Mishra submits that from the conduct and statements of this witness it would appear that P.W. 1 Kishore Kumar was not an eye-witness, but was projecting himself to be an eye-witness. 10. Shri Deep Kesharwani, learned counsel for the State on the other hand submits that statement of this witness is natural. According to him, different people may react differently in the given set of circumstances and if fine details about the driver, about the spot, about the location from where the witness has witnessed the incident are not available either in Dehati Nalishi or in the case diary statements, the same would not give a dent to the reliability of the witness. 11. In the opinion of this Court, the statements of this witness are to be read in juxta-position with the statements of P.W. 3 Damru Dhar Nayak. 12. P.W. 3 Damru Dhar Nayak is running apan thela at Tagore Nagar near Hanuman temple. The said witness stated in the Court that the vehicle was being driven by the applicant Manju Baradia, the accident took place on the spot and the boy was over run by the car. He also stated that the witness Shailesh Mishra and some rickshaw pullers reached to the spot for lifting the boy, so that he could be taken to the nursing home. According to the witness, the boy was taken to the D.K. Hospital. He also stated that the witness Shailesh Mishra and some rickshaw pullers reached to the spot for lifting the boy, so that he could be taken to the nursing home. According to the witness, the boy was taken to the D.K. Hospital. In the cross-examination, he clearly stated that at the time of the accident, but for Shailesh Mishra none was-present at his pan thela. If this statement of P.W. 3 Damru Dhar is accepted, then the statement of P.W. 1 Kishore Kumar that he was eating pan at the time of the accident would become palpably false. P.W. 3 Damru Dhar has further stated that when certain rickshaw pullers asked him to run, he went running to the spot. Though, he stated before the Court that he had given the name of the driver to the police, but was unable to give any reason regarding absence of details of the accused in his case diary statements. He also stated that after the alleged accident, he was informed by some persons that the accused was driving the vehicle, therefore, he stated in the Court that the accused was driving the vehicle. The absence of details of the accused in his case diary statement or the absence of fact that some woman was driving the vehicle would clearly speak against the conduct of this witness. The prosecution agency did not care to collect further information on the spot that it was the accused who was driving the vehicle. 13. From the statements of P.W. 1 Kishore Kumar and P.W. 3 Damru Dhar, it does not appear that immediately after the accident they informed the police that the accused was driving the vehicle or the vehicle was being driven by some woman. The prosecution agency in its wisdom did not conduct any identification parade. In absence of the details of the accused in Dehati Nalishi and in the case diary statements of P.W. 1 and P.W. 3, it is not possible for a Court to hold that the accused only, was driving the vehicle. 14. P.W. 2 Yogesh Chandra is not an eye-witness. He has been examined by the prosecution to prove that after the accident some woman was washing the vehicle. P.W. 4 Devraj is a witness to the seizure of the offending vehicle. 14. P.W. 2 Yogesh Chandra is not an eye-witness. He has been examined by the prosecution to prove that after the accident some woman was washing the vehicle. P.W. 4 Devraj is a witness to the seizure of the offending vehicle. P.W. 5 L.M. Pandey, Sub-Inspector, is a witness to receipt of Dehati Nalishi and registration of the FIR P.W. 5 R.K. Shukla is the Investigating Officer, who had gone to the spot, seized the scooter under Ex^ P-6, the documents of offending vehicle under Ex. P-10 and offending car under Ex. P-8. He had also prepared the spot map. He also stated that the vehicle was seized from the spot itself. If this statement is correct, then the statement of P.W. 1 Kishore Kumar that the accused had removed the vehicle from the spot would become incorrect. Be that as it may, the fact remains that the vehicle was seized. P.W. 6 Suresh Kumar Verma took the body for post mortem. 15. The above is the sum total of the prosecution evidence. The Appellate Court has observed that because the learned Trial Court did not convict the accused only on the ground of non-availability of the driving licence, therefore, the argument that non-availability of the licence would not lead to conviction, would be of no consequence. The Appellate Court though referred to the judgment of the Supreme Court as AIR 1968 SC Page 829, but did not try to appreciate the un-availability or non-availability of a driving licence in itself would not be sufficient to hold that the accused was rash or negligent. 16. In the matter of State of M.P. Vs. Bhawanesh Kumar, reported in AIR 1958 MP 205, a Division Bench of the High Court of M.P., while dealing with a case of non-availability of driving licence has observed that 'from the mere fact that the accused did not possess a driving licence, it cannot be positively inferred that he was guilty of rashness or negligence in driving a heavy vehicle like a truck. Whether he drives a vehicle with a licence or without licence, the law expects the driver to be neither rash nor negligent in the performance of his task and the Court will judge his conduct in the matter as if he were the most qualified driver who brings to his task the ordinary reasonable competency of persons driving heavy motor vehicles.' In the said matter the High Court further observed as under: "Under both Sections 304A and 338 the gravemen of the offence consists in the conduct of the accused being either 'rash or negligent'. Though the words used in both the sections are 'rash' and 'negligent' simpliciter the fact that their connotation has to be considered with reference to the law of crimes, indicates that, that degree of rashness or negligence will have to be proved which will make it safe for the Court to infer that the conduct of the accused which is complained of is a crime." 17. In the matter of R.V. Batteman, (1925) 19 Criminal Appeal Reporter-8 (B), it has been held by Lord Hewart, C.J. as under :-- "In expounding the law to juries on the trial of indictments for manslaughter by negligence, judges have often referred to the distinction between civil and criminal liability for death by negligence. The law of criminal liability for negligence is conveniently explained in that way. If A has caused the death of B by alleged negligence, them, in order to establish civil liability the plaintiff must prove (in addition to pecuniary loss caused by the death) that A owed a duty to B to take care that, that duty was not discharged, and that the default caused the death of B. To convict A of manslaughter, the prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A's negligence amounted to a crime. In the civil action if it is proved that A fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In the Criminal Court, on the contrary, the amount and degree of negligence are the determining questions. There must be mens rea...... The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In the Criminal Court, on the contrary, the amount and degree of negligence are the determining questions. There must be mens rea...... In the explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used epithets such as 'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But, whatever epithet he used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects & showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment...... It is desirable that as far as possible, the explanation of criminal negligence to a jury should not be a mere question of epithets. It is, in a sense, a question of degree and it is for the jury to draw the line, but there is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime." "Culpable rashness is acting with the consciousness that the mischievous 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 acting despite the consciousness (luxuria). Culpable negligence is acting without the consciousness that the illegal and mischievous effect 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 the neglect of the civil duty of circumspection." "Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. 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." 18. In the matter of Bhalchandra and another Vs. The State of Maharashtra, reported in AIR 1968 SC 1319, it has been observed as under:-- "The 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." 19. In the present case, it is also to be seen that P.W. 1 Kishore Kumar and P.W. 3 Damru Dhar do not say that the vehicle was being driven at an excessive speed. Though speed alone is not criterion to decide that the applicant was rash and negligent; but the speed is one of the considerations. 20. In the matter of Mrs. Shakila Khader etc. Vs. Nausher Gama and another, reported in AIR 1975 SC 1324, the Supreme Court has observed as under:-- "The main crieterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic and the attempt, as in this case, to overtake the other vehicles resulting in going to the wrong side of the road and being responsible for the accident. Even if the accident took place in the twinkling of an eye it is not difficult for an eye witness to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle travelling on that side of the road." 21. Speed being one of the relevant considerations would be of some importance. In this case, P.W. 1 Kishore Kumar nowhere says that the car was being driven rashly or negligently or with an excessive speed. Speed being one of the relevant considerations would be of some importance. In this case, P.W. 1 Kishore Kumar nowhere says that the car was being driven rashly or negligently or with an excessive speed. He simply says that the applicant had hit the deceased from the front side of the vehicle. P.W. 3 Damru Dhar also does not say that the vehicle was being driven rashly or negligently or at an excessive speed. He simply says that the accident took place. There is no further witness to say that the vehicle was being driven at an excessive speed, rashly or negligently. 22. In the matter of Mahadeo Hari Lokre Vs. The State of Maharashtra, reported in AIR 1972 SC 221, the Supreme Court has observed that if a person suddenly crosses a road without taking note of the approaching vehicle there is every possibility of his dashing against the on coming vehicle without the driver becoming aware of his crossing till it is too late. If a person suddenly crosses the road the driver, however, slowly he may be driving, may not be in a position to save the accident. The Supreme Court, in the said matter, found that the deceased suddenly crossed the road and, therefore, it was not possible for the driver to avoid accident and it was not possible for the Court to hold that the driver was negligent. 23. The two Courts though not in verbatim but have also applied principles of res ipsa loquitur. The Courts have found that the manner in which the deceased was dashed would clearly show that the accused was rash and negligent. The learned Appellate Court has observed that principles of res ipsa loquitur to a reasonable extent shall apply to criminal cases also. In the matter of Syad Akbar Vs. State of Karnataka, reported in AIR 1979 SC 1848, the Court has considered the question of applicability of principles of res ipsa loquitur. It would be necessary to quote Paragraphs 26 to 30 of the said judgment: "26. From the above conspectus, two lines of approach in regard to the application and effect of the maxim res ipsa loquitur are discernible. According to the first, where the maxim applies, it operates as an exception to the general rule that the burden of proof of the alleged negligence is, in the first instance, on the plaintiff. From the above conspectus, two lines of approach in regard to the application and effect of the maxim res ipsa loquitur are discernible. According to the first, where the maxim applies, it operates as an exception to the general rule that the burden of proof of the alleged negligence is, in the first instance, on the plaintiff. In this view, if the nature of an accident is such that the mere happening of it is evidence of negligence, such as, where a motor vehicle without apparent cause leaves the highway or overturns or in fair visibility runs into an obstacle; or brushes the branches of an overhanging tree, resulting in injury, or where there is a duty on the defendant to exercise care, and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course ensue, the burden shifts or is in the first instance, on the defendant to disprove his liability. Such shifting or casting of the burden on the defendant is on account of a presumption of law and fact arising against the defendant from the constituent circumstances of the accident itself, which bespeak negligence of the defendant. This is the view taken in several decisions of English Courts (For instance, see Burke Vs. Manchester, Sheffield & Loncolnshire Rly. Co., (1870) 22 LT 442; Moore Vs. Fox (R) & Sons, (1956) 1 QB 596. Also see paras 70, 79 and 80 of Halsbury's Laws of England. Third Edition, Vol. 28, and the rulings mentioned in the Foot Notes thereunder). 27. According to the other line of approach res ipsa loquitur is not a special rule of substantive law, that functionally it is only an aid in the evaluation of evidence, "an application of the general method of inferring one or more facts in issue from circumstances proved in evidence". In this view, the maxim res ipsa loquitur does not require the raising of any presumption of law which must shift the onus on the defendant. It only, when applied appropriately, allows the drawing of a permissive inference of fact as distinguished from a mandatory presumption properly so-called, having regard to the totality of the circumstances and probabilities of the case. Res ipsa is only a means of estimating logical probability from the circumstances of the accident. It only, when applied appropriately, allows the drawing of a permissive inference of fact as distinguished from a mandatory presumption properly so-called, having regard to the totality of the circumstances and probabilities of the case. Res ipsa is only a means of estimating logical probability from the circumstances of the accident. Looked at from this angle, the phrase (as Lord Justice Kennedy put it). Russel Vs. London & South-Western Rly. Co., (1908) 24 TLR 548, only means, "that there is in the circumstances of the particular case some evidence which, viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, than that the occurrence took place without negligence...... It means that the circumstances are, so to speak eloquent of the negligence of somebody who brought about the state of thing which is complained of." 28. In our opinion, for reasons that follow, the first line of approach which tends to give the maxim a larger effect than that of a merely permissive inference, by laying down that the application of the maxim shifts or casts, even in the first instance, the burden on the defendant who in order to exculpate himself must rebut the presumption of negligence against him, cannot as such be invoked in the trial of criminal case where the accused stands charged for causing injury or death by negligent or rash act. The primary reasons for non-application of this abstract doctrine of res ipsa loquitur to criminal trials arc : Firstly, in a criminal trial, the burden of proving everything 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 a mandatory presumption of negligence against the accused where the accident "tells its own story" of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence, viz. the proof, in civil criminal proceedings. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own story" of negligence of somebody. Secondly, there is a marked difference as to the effect of evidence, viz. the proof, in civil criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasions of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews Vs. Director Public Prosecutions, (1937) 2 All ER 552, 1937 AC 576, "simple lack of care such as will constitute civil liability, is not enough" for liability under the Criminal Law "a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied 'reckless' most nearly covers the case." 29. However, shorn of its doctrinaire features, understood in the broad, general sense, as by the other line of decisions, only as a convenient ratiocinative aid in assessment of evidence, in drawing permissive inferences under Section 114, Evidence Act, from the circumstances of the particular case, including the constituent circumstances of the accident, established in evidence, with a view to come to a conclusion at the time of judgment, whether or not, in favour of the alleged negligence (among other ingredients of the offence with which the accused stands charged), such a high degree of probability as distinguished from a mere possibility has been established which will convince reasonable men with regard to the existence of that fact beyond reasonable doubt. Such harnessed, functional use of the maxim will not conflict with the provisions and the principles of the Evidence Act relating to the burden of proof and other cognate matters peculiar to criminal jurisprudence. 30. Such harnessed, functional use of the maxim will not conflict with the provisions and the principles of the Evidence Act relating to the burden of proof and other cognate matters peculiar to criminal jurisprudence. 30. Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are : Firstly, all the circumstances, including the objective circumstances constituting the accident from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of determinative tendency pointing underingly towards the guilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt." 24. The Supreme Court has clearly observed that principles of res ipsa loquitur arc not special rule of substantive law, but is only an aid in the evaluation of evidence. According to the Supreme Court, this principle allows the drawing of a permissive inference of fact as distinguished from a mandatory' presumption properly so-called, having regard to the totality of the circumstances and probabilities of the case. 25. Again in the matter of N.K.V.Bros. (P) Ltd. Vs. M. Karumani Ammal and others etc., reported in AIR 1980 SC 1354, while considering the question in a different context in relation to Section 110-B of the Motor Vehicles Act, 1939, the Supreme Court observed that the requirement of culpable rashness under Section 304A, IPC is more drastic than negligence sufficient under the law of tort to create liability. 26. The learned Appellate Court in Para 9 of its judgment has observed that the place of the accident was a busy road, the accused-appellant was a novice, had only a learner's licence backed the vehicle, then gave excessive raise to the accelerator, drove the vehicle ahead and hit the scooterist; "all the facts taken in juxta-position would show that there was failure on the part of the accused to exercise reasonable and proper care". While relying upon the judgment in the matter of AIR 1953 SAU 10, the learned Court below probably did not know about the judgment of the M.P. High Court reported in AIR 1958 MP 205 (supra). Regarding, non-examination of the pillion rider, the Court below found that his non-examination was not necessary because the prosecution had examined three eye-witnesses. Unfortunately, the Appellate Court did not sec the records correctly because barring P.W. 1 Kishore Kumar and P.W. 3 Damru Dhar, there is no third eye-witness. A legal appreciation of the evidence with due caution and care could clearly show that neither P.W. 1 Kishore Kumar nor P.W. 3 Damru Dhar are the eye-witnesses. 27. The trend these days is to hold a driver of the vehicle guilty in a case of accident, but the said approach is contrary to the law unless it is shown by the prosecution by leading cogent, reliable and positive evidence. The fact of accident would not lead to a presumption that the accused was guilty of negligence or rashness. 28. In the matter of Mohammed Aynuddin alias Miyam Vs. State of Andhra Pradesh, reported in JT 2000 (8) SC 317, the Supreme Court has observed that it would be a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. The Supreme Court further observed that the principles of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer. 29. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer. 29. In relation to the question of the identity of the wrong doer, the learned Appellate Court has relied upon the statements of P.W. 2 Yogesh Chandra, who simply stated that when he reached on the spot, he saw the crowd who were whispering that in the accident a boy has been crushed. The said witness has been the offending vehicle, near which a lady similar to the present accused was washing and cleaning the car. In the opinion of this Court, this evidence is absolutely cryptic. No reliance could be placed no such cryptic evidence which lacks in details. The witness did not say that it was the accused who was standing near the car and washing the same. In fact the statement of P. W. 2 Yogesh Chandra did not lead me anywhere. From the evidence, it does not appear as to how the accident took place. Nobody says that from what side the scooterist was coming. Nobody knows that the scooter hit the car or the car hit the scooter. The evidence in relation to the identity of the accused is cryptic. The evidence relating to the rashness or negligence or excessive speed is missing. Non-seizure of gas-cylinder and non-examination of the pillion rider would speak against the prosecution. P.W. 1 Kishore Kumar, from his conduct does not appear to be an eye-witness and P.W. 3 Damru Dhar, in fact had reached the spot of the accident after the event had taken place. 30. After considering the total evidence in true perspective, I hold that the identity of the accused/wrong doer/driver of the vehicle is not established. 31. Non-seizure of the gas-cylinder and non-examination of the pillion rider in the Court would give a dent to the reliability of the prosecution case. P.W. 1 Kishore Kumar docs not appear to be an eye-witness, but appears to have reached Dr. Agrawal's clinic when the deceased was being brought out from the said clinic. P.W. 3 Damru Dhar, who has his pan thela at a distance of 100 mtrs. P.W. 1 Kishore Kumar docs not appear to be an eye-witness, but appears to have reached Dr. Agrawal's clinic when the deceased was being brought out from the said clinic. P.W. 3 Damru Dhar, who has his pan thela at a distance of 100 mtrs. from the spot, rushed towards the spot after hearing the alarms of rickshaw pullers. There is no evidence on the record to show that the driver of the vehicle was driving rashly or negligently or at an excessive speed. 32. I am unable to agree with the findings recorded by the two Courts either on the facts or on the legal aspects. The revision deserves to and is accordingly allowed. The findings recorded by the two Courts and sentence awarded by the Appellate Court, deserve to and are accordingly set aside. The accused is acquitted of all the charges. The accused is on bail, the bail bonds are discharged. Criminal Revision allowed.