JUDGMENT U.B. Saha, J. 1. The instant revision petition is filed by the accused-convict-petitioner Md. Riajuddin Ahmed challenging the judgment and order dated 27.08.2004 passed by the learned Sessions Judge, Tinsukia in Criminal Appeal No. 20(2)/2004 upholding the judgment and order dated 30.03.2004 passed by the learned Chief Judicial Magistrate, Tinsukia in GR Case No. 776/1999 whereby and when re-under the accused-convict-petitioner was convicted under Section 304A IPC and modified the sentence of SI for six months imposed by the trial court to the extent of SI for three months. Heard Mr. K Agarwal, learned counsel for the accused-convict-petitioner as well as Mr. K Munir, learned Addl. PP for the State of Assam. 2. The prosecution case in short is as follows:- PW 6, Narendra Singh lodged an information with the Doom Dooma Police Station alleging that his grandson, namely, Happy @ Harpal Singh of 10 years died on 16.09.1999 at about 5.45 a.m. due to electrocution in a motion garage adjacent to his house. It is also stated that the said motor garage was jointly run by one Sharma and accused-convict-petitioner Md. Riajuddin. The informant PW6 further alleged in the FIR that the owner of the garage connected the vehicle with electric wire intentionally and it was on the side of the road and there is now fencing around the garage (Workshop) and due to such negligence of the owner of the garage, his grandson died. 3. On receipt of the first information report lodged by PW6, a police case being Doom Dooma PS Case No. 224/99 under Section 304/ 34 IPC was registered and accordingly the said case was investigated and finally the investigating authority submitted the charge sheet under Sections 304/ 34 IPC against both the owners of the garage, namely Doodh Nath Sarma and Md. Riajuddin, the present accused-convict-petitioner. The case being triable by the Sessions Court, the same was committed to the court of the learned Sessions Judge, Tinsukia. Learned Sessions Court, on examination of the records came to the conclusion that no case was made out under Sections 304/ 34 IPC against the accused persons. Rather, a case under Section 304A IPC is made out for trial and accordingly the said case was transferred to the court of learned Chief Judicial Magistrate, Tinsukia for trial. Learned Sessions Court, on examination of the records came to the conclusion that no case was made out under Sections 304/ 34 IPC against the accused persons. Rather, a case under Section 304A IPC is made out for trial and accordingly the said case was transferred to the court of learned Chief Judicial Magistrate, Tinsukia for trial. During pendency of the trial one of the accused, namely, Doodh Nath Sarma became absconder and the case was taken up for trial of the present accused-convict-petitioner. 4. The prosecution in support of its case examined as many as seven witnesses including the official witnesses and also produced certain documents. The accused did not adduce any evidence as his case was of total denial. Considering the evidence of the witnesses the learned trial court convicted the accused-convict-petitioner under Section 304A IPC vide its judgment and order dated 30.03.2004, as stated supra, and sentenced him to undergo SI for six months and also declined to invoke Section 360 of CrPC or provisions or the Probation of Offenders Act. 5. Being aggrieved by and dissatisfied with the aforesaid judgment and order of conviction dated 30.03.2004, the accused-convict-petitioner preferred an appeal before the learned District and Sessions Judge, Tinsukia which was registered as Crl. A. No. 20(2)/2004. Learned appellate court after hearing the learned counsel for the parties and considering the judgment impugned therein, upheld the conviction of the accused-convict-petitioner and modified the sentence from six months SI to three months SI. Hence, the instant revision petition. 6. Mr. Agarwal while urging for setting aside the judgment and order of the learned appellate court would contend that both the trial court and the appellate court failed to consider the difference between civil negligence and criminal negligence and more so, the doctrine of contributory negligence does not apply to a criminal liability where death of a person caused allegedly for the negligence on the part of the accused. To prove criminal negligence, prosecution has to establish that the accused has a direct role in the alleged negligence for which the death was caused. In the instant case, such proof is totally absence. He further submits that out of seven witnesses examined by the prosecution none of them is an eye witness to the alleged incident. 7. To prove criminal negligence, prosecution has to establish that the accused has a direct role in the alleged negligence for which the death was caused. In the instant case, such proof is totally absence. He further submits that out of seven witnesses examined by the prosecution none of them is an eye witness to the alleged incident. 7. He again submits that from the evidence of PW1, it would be evident that the accused was not in the garage when death was caused due to alleged negligence of the accused-convict-petitioner he had also left the garage along with PW1 at 4.00 p.m. whereas the death of the grandson of PW 6 was caused on the following morning. 8. He further submits that the learned trial court while fixing the responsibility for causing death of the deceased Happy @ Harpal Singh for negligence of the accused-convict-petitioner considered the submission of the learned Addl. PP, inter alia, that probability cannot be ruled out that the accused though left the workshop at 4.00 p.m. he may come back again as it was owned and managed by him and another accused and occurrence took place on the next morning. 9. He further contended that the trial court in its judgment nowhere stated that the death of the minor boy namely, Happy @ Harpal Singh was caused due to direct negligence of the accused-convict-petitioner which is a sine qua non for establishing criminal negligence. He again submits that in Section 304A the legislature has prescribed for punishment of causing death of a person by doing rash and negligent driving or a negligent simplicitor not amount to culpable homicide, and not only that, the said section also excludes the ingredients of Section 299 or Section 300 of the IPC. The instant case allegedly being a case of negligent simplicitor, i.e. negligence to take proper care, it was the bounder duty of the prosecution to prove that it is only the accused who affixed the electrical wire in the vehicle with an intention to cause death of any person. 10. He finally contended that the death of the deceased Happy @ Harpal Singh may be the result of civil negligence but that cannot be said as a result of criminal negligence by the accused-convict-petitioner as there is no direct evidence against him. 10. He finally contended that the death of the deceased Happy @ Harpal Singh may be the result of civil negligence but that cannot be said as a result of criminal negligence by the accused-convict-petitioner as there is no direct evidence against him. In support of his aforesaid contention he placed reliance on a decision of the Apex Court in Jacob Mathew V. State of Punjab & Anr., (2005) 6 SCC 1 wherein his lordship RC Lahoti, Hon'ble Chief Justice then, in paragraph 12 discussed regarding tortuous liability and criminal liability, which are as follows:- 12. The terms "negligence" is used for the purpose of fastening the defendant with liability under the civil law and, at time, under the criminal law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of though running even since the beginning of the emergence of the concept of negligence up to the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extend of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R. v. Lawarence Lord Diplock spoke in a Bench of five and the order Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell and dealt with the concept of recklessness as constituting mens rea in criminal law. In R. v. Lawarence Lord Diplock spoke in a Bench of five and the order Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being "subjective" or "objective", and said: (All ER p. 982 e-f) Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of their being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it. 11. Placing reliance on the aforesaid paragraph of the law report, Mr. Agarwal further contended that in a criminal liability mens rea cannot be excluded but in a civil negligence the said can be excluded. He also placed reliance on paragraph 38 of the said law report where the Apex Court noted, inter alia, that the question of degree has always been considered as relevant to a distinction between negligence in civil law and negligence in criminal law. The Apex Court taking note of its earlier decision in Kurban Hussein Mohammedali Rangwalla Vs. State of Maharashtra, (1965) 2 Cri LJ 550 noted that while dealing with Section 304A IPC, the following statement of law by Sir Lawrence Jenkins in Emperor V. Omkar Rampratap, (1902) 4 Bom LR 679 wherein it is discussed inter alia: To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be cause causana; it is not enough that it may have been the causa sine qua non. According to him, in the instant case, it cannot be ruled out that this is a case of causa sine qua non. 12. He also placed reliance on a decision of the Apex Court m Ambalal D. Bhatt, Vs. The State of Gujarat, AIR 1972 SC 1150 wherein the Apex Court considered its earlier decision in Jacob Mathew (supra) and other cases and laid down the same principle of law, which would be evident mom paragraph 8 of the said law report. 13. Mr. Agarwal again contended that the prosecution has failed to prove its case, particularly, failed to establish the direct connection of the accused-convict-petitioner with the alleged offence of criminal negligence due to which death of the deceased Happy @ Harpal Singh was caused. 14. He finally contended that if PW4 is to be believed then PW 6 is to be dis-believed as they contradict each other particularly in respect of removing the wire in the morning just after the alleged incident took place. It can also be said that none of them were present even after the alleged incident 15. Mr. Munir, learned Addl. PP for the State of Assam while supporting the judgment of the trial court as well as the appellate court placed reliance on the evidence of P W 6 who lodged the information and stated before the Court that when he came out to the garage hearing the hue and cry he saw the other two vehicles parked in the front of the shop were also connected with electric wire and his wife also received a electric shock. Thus, it cannot be ruled out that the owner of the garage, i.e. the accused-convict-petitioner has an active part for connecting the electric wire with the vehicles and from such act a presumption can be drawn against the accused-convict-petitioner. On query of this court, he also admitted that there is no direct evidence against the present accused-convict-petitioner. 16. As the learned counsel for the parties mainly relied upon the evidence of PWs 1,4 and 6 the relevant portion of the evidence of those witnesses are discussed hereinunder:- PW1 is a worker in the motor workshop who worked jointly with the accused. 16. As the learned counsel for the parties mainly relied upon the evidence of PWs 1,4 and 6 the relevant portion of the evidence of those witnesses are discussed hereinunder:- PW1 is a worker in the motor workshop who worked jointly with the accused. He deposed that he on the day of occurrence when came to his workshop, he heard that a boy died as a result of electric shock. This witness had projected no circumstance to hold a view as to the alleged negligent act of the accused. PW4 came to the house of the deceased immediately after the occurrence. He saw the electric wire connected with wire of the vehicle in the workshop where the accused works. PW4 though that the electric current may affect somebody, so he disconnected it from the plug. PW4 pt his signature on Exhibit 2 when police seized a 407 mini bus from the place of occurrence. Defence made an attempt to project circumstance that an electric line was passing on the side of the road under which vehicle was parked. During cross it is admitted by Pw4 that the accused Riajuddin left the vehicle connecting with electric line after doing repairing work on the vehicle late in the night It reveals from the testimony of P W4 that in the morning hours when the deceased boy jumped on the vehicle he was shocked by electric line connected on it which resulted in his death. PW6 is the informant who lodged Exhibit 3, the FIR and testified his signature as Exhibit 3(1). He narrated the fact under which his nephew became the victim of circumstance. In that morning when deceased came out for a walk, it was slightly raining so the deceased came forward towards the workshop of the accused where a vehicle was parked on the road and he tried to get into it and immediately he was shocked by electric current connected on it. PW6 when came out he saw that other two vehicles parking in the frond of the workshop were also connected with electric wire and his wife also received an electric thrust. PW6 then thereafter informed the police. He put his signature on inquest report as Exhibit 4 and testified Exhibit 4(1) as his signature. PW6 when came out he saw that other two vehicles parking in the frond of the workshop were also connected with electric wire and his wife also received an electric thrust. PW6 then thereafter informed the police. He put his signature on inquest report as Exhibit 4 and testified Exhibit 4(1) as his signature. He further testified Exhibit 2 and 1 are the two different seizure list on which he put his signature as Exhibit 2(2) and 1 (2). 17. This Court has given anxious thought to the submission of the learned counsel for the parties and has also gone through the evidence on record as well as the impugned judgment wherein both the trial court and the appellate court have held that the accused-convict-petitioner worked in the garage on the previous night and the incident took place due to his criminal negligence, though there is no such evidence available on record. In the instant case, admittedly there is no eye witness and the case is based on circumstantial evidence. It is the duty of the prosecution to prove that all the links of the chain are complete. From the evidence of PW1 it is the admitted position that the accused-convict-petitioner left the garage at about 4.00 p.m., i.e. prior to the occurrence of the alleged incident and there is no such evidence that subsequently he came to the garage and connected the electrical wire with the vehicle. When it can be presumed that the accused might have come back after 4.00 p.m. in his garage then on the same line it can also be presumed that he did not turn up after 4.00 p.m. and in that case the presumption which favours the accused should be accepted and more so, the contention of Mr. Agarwal to the extent that in a case of criminal negligence direct act of negligence of the accused has to be proved in a criminal case which is totally absent in the instant case. 18. In view of the above, this Court has no other option except to acquit the present accused-convict-petitioner providing him the benefit of doubt. The accused-convict-petitioner is accordingly acquitted from the charges levelled against him. As the accused-convict-petitioner is presently on bail, his bail bond stands discharged. With the above, the instant Criminal Revision petition is allowed and is accordingly disposed of. Send down the LCR. Petition allowed.