JUDGMENT & ORDER : 1. This revisional application, under Section 397 read with Section 401 of Cr.P.C. is directed against the judgment and order, dated 16.10.2012, passed by learned Addl. Sessions Judge, Court No.4, Agartala, West Tripura in Criminal Appeal No.24(3) of 2011 whereunder the judgment and order of conviction and sentence, dated 14.06.2011, passed by learned Chief Judicial Magistrate, West Tripura, Agartala in case No. GR 1149 of 2006 has been upheld. 2. Heard learned counsel, Mr. Sankar Lodh for the accused-petitioner and learned Addl. P.P., Mr. R.C.Debnath for the State-respondent. 3. Prosecution case is that on 07.11.2006 at about 12-30 hours Mukesh Mallick, a minor boy, aged about 4(four) years, with his mother Smt. Sikha Mallick, P.W.3, was on way to their house at Gandhigram and at that time one Auto truck bearing registration No.TR01K-0656 being driven rashly and negligently with high speed knocked down and ran over Mukesh on the road and as a result, Mukesh received fatal injury. Local people took him to G.B. Hospital where he was declared dead. 4. FIR was lodged by P.W.1, Chinmoy Dutta Roy just immediately after the occurrence and Airport P.S. Case No.70/2006, under Sections 279/304(A) of IPC was registered and after investigation Charge-sheet was filed against the accused-petitioner. 5. Accused was examined under Section 251 of Cr.P.C., in course of trial, by the learned Chief Judicial Magistrate for commission of offence punishable under Sections 279/304(A) of IPC to which he pleaded not guilty and claimed to be tried. Prosecution examined 15 witnesses to prove the charges. 6. After closure of the prosecution evidence, the accused was examined under Section 313, Cr.P.C. and in his turn he declined to adduce any defence evidence. Defence case is nothing but the denial of the prosecution case. 7. Learned Chief Judicial Magistrate found the accused guilty of the charges and sentenced him to suffer R.I. for one year six months under Section 304(A) of IPC. No separate sentence was awarded under Section 279 of IPC. 8. The revisional application is filed challenging the concurrent finding of two Courts below i.e. the trial Court and the appellate Court. While exercising power of revision, this Court is to see the correctness, legality and propriety of the judgment and order of conviction and sentence and the regularity of the proceedings before the Courts below. 8. The revisional application is filed challenging the concurrent finding of two Courts below i.e. the trial Court and the appellate Court. While exercising power of revision, this Court is to see the correctness, legality and propriety of the judgment and order of conviction and sentence and the regularity of the proceedings before the Courts below. This Court is not ordinarily required to re-appreciate the evidence on record unless it is found that the trial Court and the appellate Court failed to appreciate the evidence on record and that some illegality and/or impropriety, as a result, has occasioned because of wrong appreciation of the evidence on record. 9. It is submitted by Mr. Lodh, learned counsel for the accused-petitioner that there is no iota of evidence of rash or negligent driving. Some witnesses said that the vehicle was driven with high speed. According to Mr. Lodh mere high speed does not necessarily amount to rash or negligent driving unless something else is added to the high speed. He has submitted that P.Ws 1, 3, 4 and 10 are the eye witnesses as claimed by them but out of them P.W.4 cannot be said to be eye witness because of making contradictory statement. Other three witnesses though claimed to be eye witnesses but from their evidence nothing can be discerned that the vehicle was driven rashly and negligently. 10. Learned Addl. P.P., Mr. Debnath, on the other hand, submitted that the accident occurred in a tri-junction of the road and in both the side of the road there were shops and it was a market place. The boy was run over by the vehicle. A presumption should be drawn that definitely the vehicle was driven rashly and negligently and otherwise the accident would not occur. According to learned Addl. P.P., had the driver was careful and cautious, the accident would not occur. Learned Addl. P.P., therefore, prayed for maintaining the conviction and sentence recorded by the trial Court and affirmed by the appellate Court. 11. Date, time and place of accident are not in dispute. The fact that minor boy Mukesh, son of P.Ws of 2 and 3 died due to accident is also not in dispute. The fact that the accused was the driver of the vehicle at the time of alleged accident is also not in dispute and all such facts have been proved with overwhelming evidence on record. The fact that minor boy Mukesh, son of P.Ws of 2 and 3 died due to accident is also not in dispute. The fact that the accused was the driver of the vehicle at the time of alleged accident is also not in dispute and all such facts have been proved with overwhelming evidence on record. Only question is whether there is positive evidence of rash and negligent driving or not. For recording a punishment under Section 279 and 304 (A) of IPC rash or negligent driving is sine qua non. 12. A rash act is an overhasty act done without due deliberation and caution. It is opposed to be deliberate act. Still a rash act can be a deliberate act in the sense that it was done without care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. 13. Negligence is the absence of due care and caution which an ordinary prudent man in the ordinary course of nature would take. In common parlance it may be said that negligence implies failure to exercise due care expected of a reasonable and prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of the safety of others. In most of the cases it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act. 14. Criminal rashness consists in 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 cause. The criminality lies in running the risk of doing such 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 individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was imperative duty of the accused to have adopted. 15. Now in the admitted position of the accident, let us now see the evidence on record whether we can arrive at a conclusion that the accident had occurred because of rash and negligent driving of the vehicle as alleged. 16. 15. Now in the admitted position of the accident, let us now see the evidence on record whether we can arrive at a conclusion that the accident had occurred because of rash and negligent driving of the vehicle as alleged. 16. P.W.1, the informant lodged the FIR just immediately after the occurrence. It was stated in the FIR that at about 12-30 hours on 07.11.2006 one Auto truck vehicle bearing registration No.TR01K-0656 knocked down Mukesh Mallick, aged about 4 years, son of Dulal Mallick of Gandhigram M.C. Tilla on Agartala-Bamutia Road at a place named Durgabari. The vehicle knocked down the boy and stretched him about 15 cubits away and as a result, the minor boy suffered severe bleeding injury and he was declared dead when taken to G.B. Hospital. It was stated in the FIR that for rash and negligent driving of the vehicle the accident occurred. 17. In his deposition, the informant i.e. P.W.1 stated that he saw the son of Dulal Mallick, aged about 4/5 years was coming on foot towards Bamutia. One Auto truck was also coming from the side of Bamutia loaded with fire woods. The wife of Dulal was also proceeding with the said boy with a child on her lap. The vehicle was at excessive speed and it dashed against the said boy. The boy went under front wheel. This material part of his statement has not been shaken in-cross examination. 18. P.W.3, the mother of the victim boy is another eye witness and she stated that she along with the deceased boy was returning home from their shop on foot. At that time one Auto truck loaded with fire woods was coming from the Northern side. At that time a bus vehicle was also coming from Sorthern side. The Auto truck tried to give side to the bus and dashed her son Mukesh. Mukesh went under the front wheel of the Auto truck. Seeing the accident she got senseless. Her statement has not been shaken in cross-examination. 19. P.W.4 is another eye witness of the occurrence. He stated that he saw the wife of Dulal Mallick coming towards their house with a child in her lap and her elder son was also coming at a distance of about 20 cubits ahead. They were coming from Southern side. Her statement has not been shaken in cross-examination. 19. P.W.4 is another eye witness of the occurrence. He stated that he saw the wife of Dulal Mallick coming towards their house with a child in her lap and her elder son was also coming at a distance of about 20 cubits ahead. They were coming from Southern side. There is a turning on the road to the south of Durgabari Chowmohani and one Auto truck full of fire woods coming from the Northern side and at the time of crossing the turning, it dashed against the son of Dulal. The boy went under front wheel of said Auto truck. His throat went under the front wheel. He died on the spot. In cross-examination, attention of this witness was drawn to the statement recorded under Section 161 of Cr.P.C. wherein it was found that at about 12-30 p.m. he was in his house and suddenly he heard hue and cry and then went at Durgabari Bazar. His such previous statement marked as Exbt.A and that is proved by I.O. Therefore, the statement of this witness that he had seen accident is doubtful. 20. P.W.10 is another eye witness of the occurrence and he stated that he was sitting in front of his shop at Durgabari at about 11/12 a.m. and at that time he saw son of Dulal Mallick, aged about 4 years was standing in front of a vegetable shop of Santosh Das by the side of the road. Suddenly he heard an accidental sound and found that son of Dulal Mallick was under an Auto rickshaw which came from the side of Bamutia. They found that the driver of Auto rickshaw fleeing away and they caught hold him in running. Some people of the market took the boy to the G.B.Hospital. The No. of the Auto rickshaw was TR01K-0656. The vehicle was driven at excessive speed. In cross-examination he stated that after the accident the driver tried to take out the boy from under the vehicle. The boy was alone standing in front of the vegetable shop. 21. From the above statement of the material witnesses, we find that the vehicle was at excessive speed as stated by P.W.1 and P.W.10. No implicit reliance can be placed on the evidence of P.W.4 since his statement appears to be doubtful. The boy was alone standing in front of the vegetable shop. 21. From the above statement of the material witnesses, we find that the vehicle was at excessive speed as stated by P.W.1 and P.W.10. No implicit reliance can be placed on the evidence of P.W.4 since his statement appears to be doubtful. P.W.3, the mother of the victim did not say anything about the speed of the vehicle which ran over her son. P.W.1 stated that the Auto rickshaw came from Bamutia direction and P.W.3 stated that it came from Northern direction. P.W.10 also stated that it came from Northern direction. The hand sketch map drawn by I.O., proved as Exbt.8, shows that the road on which the accident occurred running East to West and there is another road running North to South which connected the road running East to West near the place of occurrence. There were shops in the Southern side of the place of occurrence and in both Eastern and Western side of the other road which joined at the place of occurrence road. The place of occurrence shown in the hand sketch map does not tally with the oral statement of the witnesses. No doubt the accident occurred in a market place. Shops were there in both side of the road. It was 12-30 hours of the day. Might be pedestrians were not much. In such a place of the road a driver is ordinarily required to take some care and caution to avoid any sort of accident. There is nothing in the statement of the accused driver or in the cross examination that he blew horn or that he was driving the vehicle with proper care and caution. It is, however, denied that the vehicle was being driven with excessive speed. The four witnesses as discussed herein-before stated about driving with high speed. Driving with high speed by itself cannot be termed as a rash and negligent driving. Something else is required to show that the driving at that point of time when the accident occurred was rash or negligent driving for some additional ingredients. 22. Learned Addl. P.P. submitted that some presumption should be drawn in the circumstances where the accident occurred. No doubt presumption has to be drawn from a bundle of facts. But the bundle of facts should come out from the mouth of the witnesses or from documents. 22. Learned Addl. P.P. submitted that some presumption should be drawn in the circumstances where the accident occurred. No doubt presumption has to be drawn from a bundle of facts. But the bundle of facts should come out from the mouth of the witnesses or from documents. Two witnesses have stated that the vehicle came from Bamutia direction or from Northern direction. No definite opinion can be formed actually from which direction the vehicle came and even the I.O. has not cleared it in his deposition while exhibiting the hand sketch map. The victim was 4 years old boy. It is apparent that his mother was not holding his hand. According to P.W.3 i.e. the mother, she along with her deceased son was on way to their house but she did not say anything that she was holding the hand of her son or that her son was a little bit away from her. P.W.4 stated that the boy was 20 cubits away from his mother. P.W.10 stated that the boy was standing in front of a vegetable shop of one Santosh Das but no such Santosh Das was examined as a witness in the case. So, in view of the contradictory statements it is very difficult as to whether the boy was along with his mother or he was alone a little bit away from his mother or that he was standing in front of a vegetable shop of Santosh Das when the vehicle knocked him down or stretched him a little bit away. No witness stated that the boy was stretched to a distance what is alleged in the FIR. The photographs have been proved which shows some stretching mark but no witness stated about the stretching of the boy under the wheel. 23. Under such circumstances of the evidence on record, the allegation so far brought by the prosecution about the rash and negligent driving seems to be doubtful and definitely benefit of such doubt will go to favour the accused. There must be cogent and consistent evidence to arrive at a conclusion of rash and negligent driving for punishment under Section 279 or under Section 304(A) of IPC. In the absence of such cogent evidence simply because the accident occurred in a high way in the market place, we cannot arrive at a definite conclusion that it was because of rash and negligent driving. 24. In the absence of such cogent evidence simply because the accident occurred in a high way in the market place, we cannot arrive at a definite conclusion that it was because of rash and negligent driving. 24. In view of the discussions made above, I think the judgment and order of conviction and sentence is not legally permissible in view of the deficiency of evidence on record. 25. The revisional application is accordingly allowed. 26. The judgment and order of conviction and sentence, dated 14.06.2011, passed by learned Chief Judicial Magistrate, West Tripura, Agartala in case No. GR 1149 of 2006, which is affirmed by judgment and order of sentence and conviction dated 16.10.2012, passed by learned Addl. Sessions Judge, Court No.4, Agartala, West Tripura in Criminal Appeal No.24(3) of 2011 are set aside. 27. The accused-petitioner is acquitted of the charge on benefit of doubt. 28. Send back the L.C. records along with a copy of this judgment.