JUDGMENT & ORDER : By this petition, judgment and order dated 04.03.2015 delivered in Criminal Appeal No.11 of 2014 by the Sessions Judge, South Tripura, Belonia has been challenged. The judgment and order dated 25.11.2014 as passed by the trial court [the court of the Judicial Magistrate, 1st class, Belonia, South Tripura] delivered in case No.PRC 389 of 2011 convicting the petitioner under Section 304-A of the IPC and sentencing him to suffer rigorous imprisonment for 6(six) months and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for one month for committing the said offence, has been affirmed by the said judgment dated 04.03.2015, the impugned judgment. 2. One Abhiram Das filed an oral ejahar on 10.09.2011 through one Rakesh Jamatia, Sub-Inspector of Police, Santirbazar Police Station disclosing that on 10.09.2011 when he was travelling by the vehicle bearing No.TR-01-4148 [the commander jeep] towards Santirbazar and when the vehicle reached in front of the BSF camp at Bagafa and the vehicle was negotiating a turn, another commander jeep bearing No.TR-01-2039 which was being driven with high speed collided with the said vehicle bearing No.TR-01-4148. For that collision, the informant Abhiram Das received serious injuries and another co-passenger namely Ratan Acharjee died in the spot. When he made the oral ejahar, the informant was being treated in the Santirbazar hospital. 3. Based on the said ejahar, the Officer-in-Charge, Santirbazar Police Station registered the case being STBPS Case No.66 of 2011 under Section 279/304-A of the IPC and made it up for investigation. After investigation, the police filed the final report charge-sheeting the petitioner under Section 279 and 304-A of the IPC. On taking cognizance, the statement of accusation under Section 251 of the Cr.P.C. was read out to the petitioner on 08.03.2013 by the trial court stating that he had committed offences punishable under Section 279/304-A of the IPC. The petitioner denied the said accusation and pleaded innocence. As consequence thereof, the prosecution in order to substantiate the said accusation adduced as many as 7(seven) witnesses including the informant [PW6] and the Investigating Officer namely Sri Rakesh Jamatia [PW5]. The defence did not adduce any evidence. But when the petitioner was examined under Section 313 of the IPC, he repeated his plea of innocence. As consequence thereof, the prosecution in order to substantiate the said accusation adduced as many as 7(seven) witnesses including the informant [PW6] and the Investigating Officer namely Sri Rakesh Jamatia [PW5]. The defence did not adduce any evidence. But when the petitioner was examined under Section 313 of the IPC, he repeated his plea of innocence. Having appreciated the evidence, the trial court by its judgment dated 25.11.2014 returned the finding of conviction observing as under : “On going through the deposition of two eye witnesses i.e. deposition of PW3 & 6 which are discussed earlier I find that at the time of accident accused Subal Debnath with his vehicle bearing No. TR-01-4148 (commander jeep) was proceeding towards Santirbazar from Manu and when the vehicle reached near Santir bazaar BSF Camp at that time accused Santosh Shil with his vehicle bearing No. TR 01-2039 by coming from opposite direction dashed the vehicle of Subal. At the time of appreciating the evidence of prosecution witnesses I have carefully perused the hand sketch map which was prepared by the Investigating Officer at the time of investigation i.e. document Exbt.2 and on perusal of the said map I find that ‘A’ is shown as place of occurrence and the direction of the vehicle of Subal was from Manu to Santirbazar i.e. from Udaipur to Santirbazar as reflected in the hand sketch map and the direction of accused Santosh was from Santirbazar to Manu. At the time of cross-examination of the Investigating Officer Ld. Defence counsel for the accused Santosh Shil or Ld. Advocate for the accused Subal Debnath did not raise any question regarding place of occurrence i.e. ‘A’ and on perusal of the case record I also did not find any materials to disbelieve the hand sketch map as prepared by the Investigating Officer. Hence, I have no doubt that the hand sketch map which was prepared by the Investigating Officer, he prepared the same considering the actual fact of the accident. As. ‘A’ is place of occurrence, then I have no doubt that direction of the vehicle of Santosh Shil was South to North and the direction of the vehicle of Subal Debnath was North to South. As. ‘A’ is place of occurrence, then I have no doubt that direction of the vehicle of Santosh Shil was South to North and the direction of the vehicle of Subal Debnath was North to South. The place of occurrence i.e. ‘A’ as shown in the hand sketch map clearly indicating that the accident took place towards Eastern side of the road which shows a wrong side for the vehicle driven by accused Santosh i.e. vehicle bearing No TR 01-2039 as at the time of accident the direction of the vehicle driven by accused Santosh Shil was South to North and on that direction obviously the right hand side of the vehicle should be Western side of the road but surprisingly the driver Santosh Shil at the time of accident driven his vehicle towards Eastern side of the road and the defence counsel for the accused did not give any satisfactory reason behind the presence of the vehicle of Santosh Shil as shown in the hand sketch map i.e. document Exbt.-2. Considering the discussion made above I have no doubt at the time of accident accused Santosh Shil drove his vehicle in negligent manner and dashed the vehicle of Subal by coming to its wrong side. Hence, I am of the opinion that the accident took place for the absolute negligent driving by the driver Santosh Shil and there was no fault from the part of another accused namely Subal Debnath. After going through the deposition of PW4 who conducted Post Mortem examination over the body of deceased Ratan Acharjee and after going through the report i.e. document Exbt.-1 where cause of death is mentioned I have no hesitation that the deceased driver Santosh Shil. At the time of argument though it was further argued that the prosecution did not examine the informant in this case and the FIR was not confirmed by the informant, hence, the prosecution case is doubtful. In this regard I am of the opinion that it is settled law that FIR is not a substantive piece of evidence and considering the discussion made above I did not find any merit to disbelieve the prosecution case.” 4. Being aggrieved by that finding of conviction the petitioner filed an appeal under Section 374(3) of the Cr.P.C. in the court of the Sessions Judge, South Tripura, Belonia being Criminal Appeal No. 11 of 2014. Being aggrieved by that finding of conviction the petitioner filed an appeal under Section 374(3) of the Cr.P.C. in the court of the Sessions Judge, South Tripura, Belonia being Criminal Appeal No. 11 of 2014. The said appeal has been dismissed by the impugned judgment and order dated 04.03.2015 on observing as under: “On appreciation of the evidence of PW3 & PW6 as well as PW4, I find that, one Ratan Acharjee was expired due to the said accident and, in my opinion; prosecution has been able to prove its case against accused Santosh Shil. In also find that, Ld. Court below rightly passed the order of acquittal against the accused Subal Debnath and he also rightly passed the judgment as well as order of conviction against Sri Santosh Shil. Hence, I do not find any reason to interfere with the judgment of conviction as well as the sentence. Therefore, the Criminal Appeal is dismissed confirming the judgment dated 25.11.2014 passed in connection with Case No. 1st PRC. 389 of 2011 of the Judicial Magistrate Class, Belonia, South Tripura.” The said judgment dated 04.03.2015 as stated is under challenge in this petition. 5. Mr. A. Acharjee, learned counsel appearing for the petitioner has submitted that just on drawing the conjectural inference both the courts below have returned the finding of conviction. According to him, if the testimonies of PW3, PW4 and PW6 are appreciated, it would be apparent that rash or negligent act has not been proved which are sine qua non for establishing any accusation framed under Section 304-A inasmuch as the said Section 304-A of the IPC provides that whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. So unless the rash and negligent act is proved, the accusation under Section 304-A is bound to fall through. Similarly under Section 279 of the IPC, it is an act of rash driving on a public way. So unless the rash and negligent act is proved, the accusation under Section 304-A is bound to fall through. Similarly under Section 279 of the IPC, it is an act of rash driving on a public way. It has been provided under Section 279 of the IPC that whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. The element of rashness unless proved following the standard of ‘beyond reasonable doubt’ the finding of conviction cannot be sustained. 6. Mr. Acharjee, learned counsel has taken this court to the evidence as led by the prosecution. PW1, Sanjit Acharjee has stated that the accident took place due to head-on collusion between two vehicles and for that accident his uncle Ratan Acharjee sustained injury. He did not see the occurrence. He heard about the accident and went to the Santirbazar Primary Health Centre to see his injured uncle who by that time was declared dead. PW2, Tapan Acharjee is again a hearsay evidence. 7. PW3, Indrajit Sarkar was the passenger in the commander jeep bearing No.TR-01-4148 which was proceeding towards Santirbazar from Manu and he has stated in the trial that when the vehicle reached near Santirbazar BSF camp, another commander jeep bearing No.TR-01-2039 coming from the opposite direction ‘dashed their vehicle’. The passengers sustained injuries. Ratan Acharjee succumbed to his injuries. He has stated that driver of the vehicle in which he was a passenger was one Subal Debnath whereas the driver of the other vehicle was Santosh Shil. According to him, the accident took place due to rash and negligent driving of the petitioner. He has further stated that the vehicle had slid to the wrong side and dashed the vehicle which he boarded. 8. PW4, Dr. Gobinda Reang had conducted the post-mortem examination over the body of deceased Ratan Acharjee. 9. According to him, the accident took place due to rash and negligent driving of the petitioner. He has further stated that the vehicle had slid to the wrong side and dashed the vehicle which he boarded. 8. PW4, Dr. Gobinda Reang had conducted the post-mortem examination over the body of deceased Ratan Acharjee. 9. PW5, Rakesh Jamatia was the Officer-in-Charge of Santirbazar Police Station on 10.09.2011 and he reduced the information into writing and later on that was signed by the informant, PW6 and thereafter he registered the case and took up the charge of investigation on himself and visited the spot, sent the vehicle for examination by the Motor Vehicle Inspector to ascertain whether there was any mechanical defect. He also recorded the statements of the witnesses. He also prepared the inquest report [Exbt.7]. He has further stated in the trial that he submitted charge-sheet against the petitioner as the driver of the offending vehicle bearing No.TR-01-2039 under Section 279 and 304A of the IPC. 10. PW6, Abhiram Das who lodged the information to PW5 has stated that he was in the commander jeep and when they reached near the BSF camp another commander jeep coming from the opposite direction with high speed dashed their vehicle. He sustained some serious injuries on his head and he was treated in the Santirbazar Primary Health Centre. He was also treated for some time in the Belonia Hospital. PW7, Swapan Baidya did not state anything of material importance in the trial. 11. According to Mr. Acharjee, learned counsel, except PW3 there was none to identify the petitioner and for purpose of identification PW4 did not say how he did identify the petitioner, whether the petitioner was acquainted with PW4 from before the accident or not. Based on the said identification, the petitioner had been convicted. PW4 has stated the accident took place due to rash driving of Santosh Shil and the vehicle had come to wrong side and dashed their vehicle. 12. If the statement is compared with the site map [Exbt.2] it would be apparent that PW4 was not fully stating the fact as the place of occurrence as marked by the Investigating Officer is in a carve. PW4 did not provide any materials to infer the driving rash. 12. If the statement is compared with the site map [Exbt.2] it would be apparent that PW4 was not fully stating the fact as the place of occurrence as marked by the Investigating Officer is in a carve. PW4 did not provide any materials to infer the driving rash. The rash or negligent act requires the criminal rashness and consists of hazarding, 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 an act with recklessness or indifference as to the consequences. Criminal negligence is 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 having regard to all the circumstances. In Rattan Singh vs. State of Punjab reported in AIR 1980 SC 84 , the apex court has succinctly held that the rashness and negligence are relative concepts, not abstractions. In applying the law under Section 304-A, it is fair to apply the rule of res ipsa loquitor with due care, and having regard to the fatal frequency of rash driving of heavy vehicles and of the speeding menace. 13. Mr. A. Acharjee, learned counsel appearing for the petitioner has relied on a decision of the apex court in Ravi Kapur vs. State of Rajasthan reported in AIR 2012 SC 2986 where the apex court has held as under : 12. The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others. 13. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others. 13. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road accidents. 'Culpable rashness' is acting with the consciousness that 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 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 civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's 'An Exhaustive Commentary on Motor Vehicles Act, 1988' (First Edition, 2010]. 14. We have noticed these principles in order to examine the questions raised in the present case in their correct perspective. We may notice that certain doctrines falling in the realm of accidental civil or tortuous jurisprudence, are quite applicable to the cases falling under criminal jurisprudence like the present one. 15. Now, we may refer to some judgments of this Court which would provide guidance for determinatively answering such questions. In the case of Alister Anthony Pareira v. State of Maharashtra [ (2012) 2 SCC 648 ] where the driver of a vehicle was driving the vehicle at a high speed at late hours of the night in a drunken state and killed seven labourers sleeping on the pavement, injuring other eight, this Court dismissing the appeal, laid down the tests to determine criminal culpability on the basis of 'knowledge', as follows : “41. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law in view of the provisions of IPC the cases which fall within the last clause of Section 299 but not within clause “Fourthly” of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC. Section 304A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description.” [Emphasis added] 14. Mr. R.C. Debnath, learned Addl. P.P. appearing for the state has submitted that there is no reason to disbelieve PW4 and PW5. PW5 has categorically stated in the trial that he prepared the hand sketch map with index. The trial court on the basis of the said site map [Exbt.2] applied the principle of res ipsa loquitor. The inference drawn thereby cannot be held to be merely presumptive. The inference is not conjectural but on the basis of the physical inspection by the Police Officer who appeared in the place of occurrence. As such PW5 is not a mere Investigating Officer but he has witnessed the positions of the vehicle immediately after the accident. 15. Having regard to the submissions made by the learned counsel and also scrutinised the records this court is of the view that PW5 [Investigating Officer] has failed to disclose how he identified the place of occurrence which has been marked as ‘A’ in the site map inasmuch as he was not present at the time of occurrence and even he has not disclosed whether he found the vehicles in the same position after the accident. He has not mentioned anything about the inspection report of the vehicles whether there was any mechanical defect or not. That apart, this court finds that the testimonies of PW5, is very difficult to believe inasmuch as he did not disclose any materials how he could identify the petitioner from the other vehicle or how he knew his name or whether PW5 was acquainted to the petitioner before the accident or not. PW4 has miserably failed to disclose such material information in his testimony. Thus drawing the inference based on res ipsa loquitor cannot be held to be based on the foundation of the proved fact. Thus, this court is unable to accept the testimony of PW5 as reliable. 16. Having held so, the petitioner is entitled to benefit of doubt. As consequence thereof, the impugned judgment and order is set aside and the petitioner is acquitted from the accusation of rash or negligent act under Sections 304-A and 279 of the IPC. The petitioner is set at liberty. The sureties are discharged from their respective obligation. 17. 16. Having held so, the petitioner is entitled to benefit of doubt. As consequence thereof, the impugned judgment and order is set aside and the petitioner is acquitted from the accusation of rash or negligent act under Sections 304-A and 279 of the IPC. The petitioner is set at liberty. The sureties are discharged from their respective obligation. 17. In the result, the petition stands allowed. Send down the LCRs forthwith.