JUDGMENT & ORDER : Heard Mr. S. Bhattacharjee, learned counsel appearing for the petitioner ass well as Mr. S. Sarkar, learned P.P. appearing for the respondent-State. 2. This is a petition under Section-397 read with Section-401 of the Cr. P.C. from the judgment and order dated 15.02.2017 delivered in Criminal Appeal No. 10(1) of 2016 by the Addl. Sessions Judge, Gomati Judicial District, Udaipur. By the said judgment, the judgment and order of conviction and sentence dated 30.01.2016, delivered in G.R. 124 of 2013 has been affirmed. 3. The genesis of the prosecution is rooted in the written complaint filed by one Bimal Das on 29.05.2013 revealing that while he and his wife namely Ratna Das by boarding the vehicle bearing registration No. TR01-3351 (commander jeep) was proceeding towards Teliamura, in a place called Taichakma, the said vehicle capsized in a low line along the road, for the reason the vehicle was being driven with high speed. The people from the neighbourhood rushed in and shifted the injured to Ompinagar Hospital and on assessment of the seriousness of the injuries 10/11 persons were referred to GBP Hospital at Agartala. 4. According to the said complaint, for rashness and negligence of the driver, the said accident could occur. In terms of the said complaint, Taidu P.S. case No. 07 of 2013 under Sections 279/338 of the IPC was registered and taken up for investigation. 5. One of the injured person, namely Ratna Das succumbed to her injuries and as consequence, Section-304A of the IPC was added subsequently with leave of the Magistrate and investigation was directed towards that offence as well. On 23.09.2013 the final police report under Section-173(2) was received by the Court. Against the petitioner, according to the Investing Officer there were prima facie evidentiary materials. 6. On taking the cognizance of accusation the substance under Section-251 was read to the petitioner charging for committing offence punishable Under Sections 279/338 and 304A of the IPC, to which the petitioner pleaded innocence and claimed to be tried. 7. Too substantiate the charge, the prosecution examined as many as 20 witnesses including the Investigating Officer, the doctor who carried out postmortem examination on the deceased passenger and the doctor who assessed the injuries of the persons who fell victim to the said accident. On recording of the evidence of the prosecution, the petitioner was examined under Section-313 of the Cr. On recording of the evidence of the prosecution, the petitioner was examined under Section-313 of the Cr. P.C. on 11.12.2015 for having his response to the incriminating materials, when he reiterated his plea of innocence. 8. Thereafter, the trial judge, the Judicial Magistrate, 1st Class, Amarpur, Gomati Tripura by the judgment dated 30.01.20116 (in G.R. Case No. 124 of 2013) returned the finding of conviction against the accused-petitioner under Sections 279/338/304(A) of the IPC and sentenced him to suffer R.I for 2 years under Section-304(A) of the IPC and to pay a fine of Rs. 2,000/in default to suffer SI for 20 days. But no separate sentence was handed down on considering the common ingredients in the other offences as committed. 9. The petitioner being aggrieved by the judgment and order dated 30.01.2016 preferred an appeal under Section-374(3) Cr.P.C. in the Court of the Sessions Judge, Gomati Judicial District, Udaipur being Crl. A. No. 10 (1) of 2016. By the impugned judgment and order dated 15.02.2016 the Addl. Sessions Judge, Gomati Judicial District, Udaipur in whose court the matter was transferred for hearing thee appeal in accordance with law, has affirmed the judgment of the trial court on observing inter alia: “The driver was running the vehicle at an excessive speed as stated by PW-20 at the relevant time of accident and as a result of the same, the driver lost the control over it and the vehicle got capsized by the side of the road. Apart from this, after going through the seizure list (Exhibit-33) in respect of seizure of the vehicle bearing No. TR-01-3351 by the IO in presence of witnesses, as well as the evidence of PW-11 Smti. Chittra Prava Das (owner of the said vehicle) and her husband PW-12 Shri Nirmal Ch. Biswas and also taking into notice the Angikar Paper given to OC, Taidu PS by Smti. Chittra Prava Das (owner of the said vehicle) and her husband PW-12 Shri Nirmal Ch. Biswas and also taking into notice the Angikar Paper given to OC, Taidu PS by Smti. Chitra Prava Das on 28.06.2013 wherein it has been specifically mentioned that the convict-appellant had been the driver of the offending vehicle for the last 1 to 1 ½ years and on the relevant day also he was at the wheel and further taking into notice the Mechanical Inspection Report which reflects that the alleged accident did not occur due to any mechanical disorder in the said vehicle, which documents are available in the record of learned Court below there remains no room for the convict-appellant to contend that the prosecution miserably failed to connect the convict-appellant with the alleged accident.” 10. Mr. S. Bhattacharjee, learned counsel appearing for petitioner has submitted that even without questioning the evidence of identification of the driver who was driving the vehicle at the relevant point of time or having reference to any mechanical defect of the vehicle, he would emphasis the solitary point whether the speed alone can determine the rash and negligence act for which conviction and sentence can be returned under Section 304A or Section-338 or Section-279 of the IPC. 11. Mr. Bhattacharjee, learned counsel appearing for the petitioner has categorically made a submission that in respect of the speed except PW-20, none has stated anything. PW-20, Shri Bimal Das has stated that the MAX vehicle capsized as it was being driven in ‘high speed’. In the cross examination, PW-20 has stated that when he boarded on another occasion, the MAX vehicle did not capsize though it was being driven in ‘high speed’. 12. In support of his contention, Mr. Bhattacharjee, learned counsel appearing for the petitioner has relied on a decision of the Gauhati High Court in Madhu Sudhan Debnath v. State of Tripura, reported in (2012) 6 GLR 655 where it has been observed as under: “19. In view of the decision [State Of Karnataka vs. Satish reported in (1998) 8 SCC 493 ] of the Apex Court in Satish (supra), it can be said that the mere proof of 'high speed' is not sufficient to prove rashness and negligence to drive home the accusation under sections 279 and 304a of IPC. In view of the decision [State Of Karnataka vs. Satish reported in (1998) 8 SCC 493 ] of the Apex Court in Satish (supra), it can be said that the mere proof of 'high speed' is not sufficient to prove rashness and negligence to drive home the accusation under sections 279 and 304a of IPC. The Apex Court in no unequivocal terms laid down that it is for the prosecution to bring on record material too establish as to what it meant by 'high speed' in the facts and circumstances of the case. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In absence of any material on record, no presumption of rashness or negligence can be drawn by invoking the maxim rres ipsa loquitur. There being no evidence on record to establish rashness or negligence in driving of the vehicle on the part of the petitioner, it cannot be said that the judgment of conviction as returned by the trial court and as affirmed by the appellate court is legal.” 13. What has been witnessed by this Court that though the appellate court has relied on the report of the Motor Vehicle expert, but the said report was not introduced in the evidence by the said motor vehicle expert as he had not attended the trial for that purpose. Hence, consideration of that report was grossly illegal. 14. Mr. S. Sarkar, learned P.P. appearing for the respondent-State has fairly submitted that the proof of speed alone cannot constitute the rash and negligence act within the meaning of Section-279/338 and 304(A) of the IPC. On scrutiny of the records, this Court finds no further materials in respect of rashness or negligence perpetrated by the petitioner. Mere proof ‘high speed’ is not sufficient as well, particularly when there is no other witness to verify the accusation. 15. Speed is always a relative factor, can be considered differently in the divergent perspectives. For returning the finding of conviction, the evidence as adduced has surfaced inadequate but the incidence of accident has been well established by the prosecution. Even the prosecution has proved that a good number of the passengers, some of them have testified in the trial, were injured. 16. For returning the finding of conviction, the evidence as adduced has surfaced inadequate but the incidence of accident has been well established by the prosecution. Even the prosecution has proved that a good number of the passengers, some of them have testified in the trial, were injured. 16. But unless the main attribute of rashness and negligence, failure to do ordinarily what is required to be done, is proved, the conviction under Sections-279, 338 and 304A, the prosecution case is bound to fail. Hence, the main attribute is not established and for this reason, this Court is persuaded to interfere with the impugned judgment and, accordingly, order and the same is set aside. The petitioner is acquitted from the charge under Sections 279, 338 and 304A of the IPC. Since the petitioner is on bail, the sureties are discharged from their respective liabilities. In the result, this petition stands allowed. Send down the LCRs forthwith.