JUDGMENT & ORDER : This revisional application is directed against the judgment and order dated 26.09.2012 passed by learned Sessions Judge, West Tripura, Agartala in Criminal Appeal No.11(2) of 2011, whereunder the learned Sessions Judge, West Tripura, Agartala affirmed the judgment and order of conviction and sentence dated 26.03.2011 passed by learned Chief Judicial Magistrate, West Tripura , Agartala against the accused-appellant-petitioner in case No. GR 1299/2006. 2. Heard learned counsel, Mr. B. Nandi Majumder for the accused-petitioner and learned Addl. P.P., Mr. R.C. Debnath for the State-respondent. 3. Learned Chief Judicial Magistrate found the accused-appellant guilty of committing the offence punishable under Section 279 and 304(A) of IPC and sentenced him to suffer Rigorous Imprisonment for one & half year under Section 304(A) of IPC and no separate sentence under Section 279 of IPC was given. 4. The prosecution case is that on 13.12.2006 at about 2.30 P.M Sagar Das, a minor boy of five years, was walking through the Assam-Agartala road at village Bridhyanagar with his grandmother (P.W-3) and was on way to their house through the left side (northern side of the road) and at that time the offending vehicle No.TR-01-B-3513 coming from backside with excessive speed knocked down Sagar Das and as a result he received severe injuries. He was shifted to Ranir Bazar Hospital and from there to GB Hospital, where he succumbed to the injuries. 5. On the basis of a FIR lodged by Narayan Chandra Das, father of Sagar Das a police case i.e. Ranirbar P.S. Case No.72, of 2006 was registered under Sections 279 and 338 of IPC and charge sheet was ultimately filed against the accused-petitioner for commission of offence punishable under Sections 279 and 304(A) of IPC. 6. In the course of trial prosecution examined 14 witnesses and proved the documents as mentioned in the trial Court judgment. The accused was examined under Section 313 Cr.P.C. and in his turn he declined to adduce any evidence. Defence case is that of denial of the case of the prosecution. 7. The trial Court found the accused guilty and, accordingly, convicted and sentenced him as stated herein before. The accused petitioner preferred appeal before the learned Sessions Judge and by the impugned judgment the appeal was dismissed. 8. Learned counsel, Mr. Defence case is that of denial of the case of the prosecution. 7. The trial Court found the accused guilty and, accordingly, convicted and sentenced him as stated herein before. The accused petitioner preferred appeal before the learned Sessions Judge and by the impugned judgment the appeal was dismissed. 8. Learned counsel, Mr. Nandi Majumder appearing for the accused-petitioner candidly submitted that except the statement that the vehicle was driven with high speed there is no evidence of rash or negligent driving. According to learned counsel the rash and negligent driving cannot be inferred automatically simply because of driving in high speed. 9. The second argument advanced by learned counsel, Mr. Nandi Majumder is that PW-2, 3 and 12 are the eye-witnesses of the accident and so far the prosecution case is concerned if their evidence is properly scrutinized the prosecution case cannot be believed and so the findings recorded by the Courts below cannot sustain. 10. I am quite aware that the jurisdiction of the revisional Court is to see the correctness, legality and propriety of the judgment and irregularity of the proceedings of Courts below. The revisional Court will not ordinarily re-appreciate the evidence unless it is found that there was total non-appreciation of evidence on record or that there was mis-appreciation of the evidence on record. 11. Learned Counsel, Mr. Nandi Majumder has submitted that according to the prosecution PW-3 was holding the right hand of the minor boy while proceeding towards their house through the road running east to west, by the northern side of the road and if she was holding the right hand the Jeep vehicle would knock down the lady first and then the minor boy. As per the hand sketch map the road running from east to west and the boy with his grandmother was proceeding towards east through the northern side of the road i.e. in their left side. 12. Simply because PW-3 made the statement that she was holding the right hand of the boy, I find no cogent reason at all to draw an inference that the boy was not knocked down by the vehicle, since the death of the boy because of motor vehicle accident has been proved with overwhelming evidence. 13. 12. Simply because PW-3 made the statement that she was holding the right hand of the boy, I find no cogent reason at all to draw an inference that the boy was not knocked down by the vehicle, since the death of the boy because of motor vehicle accident has been proved with overwhelming evidence. 13. PW-2 and PW-12 corroborated PW-3 in respect of the accident and I find no such infirmity to draw an adverse inference that the evidence was not correctly appreciated by the trial Court as well as appellate Court. 14. It is true, the witnesses stated that the vehicle was running with high speed. In a highway a vehicle is suppose to run with high speed. What speed will amount to high speed has not been specified by statute. It would be depending on the location of the road. The area of the road of the road where the accident occurred is not an isolated road, rather it is residential area. The road running through the village having habitation. So, every vehicle is required to be driven with care and caution. While cross examining PW-3 a suggestion was put on behalf of the accused that the boy was suddenly trying to cross the road by running and at that time the accident occurred. So, the submission of learned counsel, Mr. Nandi Majumder that there is no evidence to show rash or negligent driving cannot be swallowed as good submission in view of the suggestion put forward on behalf of the accused that the accident occurred while the boy was trying to cross the road running. To substantiate that suggestion no evidence was led by the accused to show that he was not driving the vehicle rashly or negligently. 15. A rash act is a over hasty act done without due deliberation and caution. A negligent act is the absence of such care and caution which a ordinary prudent men in the ordinary course of nature would take or not take. So while the prosecution has proved that the boy was knocked down by the offending vehicle, the accused being the driver of that vehicle was supposed to come with some sorts of acceptable defence either by way of adducing evidence or by cross examining the prosecution witnesses. 16. I agree with the submission of the learned counsel, Mr. So while the prosecution has proved that the boy was knocked down by the offending vehicle, the accused being the driver of that vehicle was supposed to come with some sorts of acceptable defence either by way of adducing evidence or by cross examining the prosecution witnesses. 16. I agree with the submission of the learned counsel, Mr. Nandi Majumder that the burden lies on the prosecution to prove the case but while the prosecution discharged that burden, if the accused tries to take any advantage of the fact which will favour him, that has to be brought on record by the accused and that burden cannot be shifted on the shoulder of the prosecution. 17. I, therefore, find no merit in the revisional application and hence the revisional application stands dismissed. 18. The accused should surrender and serve out the sentence. Send back L.C records along with a copy of the judgment.