JUDGMENT : 1. This criminal revision has been filed by the State against the order/judgment dated 30th August, 2007 passed by learned Principal Sessions Judge, Rajouri in case titled Shamsheer Hussain vs. State by virtue of which appeal filed by the respondent herein has been allowed and accused (respondent herein) has been acquitted. 2. Appellant-State has challenged the impugned order dated 30.08.2007 on the ground that learned Sessions Judge has mis-appreciated and misconstrued the law attracted to the facts of the present case; that the court below has committed grave error of law, which has resulted in passing of the impugned judgment; that the prosecution has successfully proved the allegations levelled against the respondent herein and the oral and documentary evidence produced during the trial has undoubtedly established the commission of alleged offences by the respondent herein. 3. The prosecution case in brief is that on 12.03.2001, SHO Police Station Rajouri gave a telephonic message to Police Station Thanamandi that a matador bearing registration no.JKO2D/1549 was destined from Kalakote to Plunger and because of rash & negligent driving of driver Shamsheer Hussain met with an accident at Nerojaal. The vehicle was boarded with a Barat Party. As a result of accident four persons, namely, Anait Ali Shah, Talab Hussain Shah, Zafar Hussain Shah and Abdul Aziz died on spot and about 18/20 persons got injured, who have been shifted to hospital. On receiving this information, FIR no:14/2001 for the commission of offence punishable under Sections 279/337/338 and 304-A RPC stood registered at Police Station, Thanamandi against the accused and investigation of the case was entrusted to Mohd. Rafiq Chohan, S.I. who after proceeding to the Hospital at Rajouri, got the injured persons medically examined beside recording the statement of prosecution witnesses under Section 161 Cr.P.C. He also received the dead bodies from Police Station, Rajouri and delivered the same to the legal heirs of the deceased against proper receipt and also taken the photograph of the dead bodies and prepared the site plan and during the further course of investigation, I.O besides seizing the documents of the vehicle under question also got the same mechanically examined. The accused was taken into custody, who was later on admitted to bail by the court. The accused was taken into custody, who was later on admitted to bail by the court. The I.O has also obtained the medical report with regard to the eighteen persons injured in the said accident and finally after the conclusion of the investigation the challan was presented before the court under Section 279/304-A RPC. 4. After production of the challan before the JMIC Thanamandi, accused was charged sheeted on 24.09.2001 and he denied acquisition. 5. During the course of trial, prosecution produced PW1 Mohd. Altaf, PW2 Gulam Rasool Shah, PW3 Mohd. Iqbal, PW4 Mubarak Hussain Shah, PW5 Shah Jan, PW6 Mushtaq Hussain Shah, PW7 Zakar Hussain Shah, PW8 Azad Hussain Shah, PW9 Juned Hussain Shah, PW10 Kramat Hussain Shah, PW11 Khalid Hussain, PW12 Mushtaq Ahmed, PW13 Shabir Ahmed, PW14 Manzoor Ahmed Shah, PW15 Mehmood Hussain and PW16 Mohd Bashir Choudhary. 6. The learned JMIC, Thannamandi after conclusion of the trial, convicted the accused on 25.05.2006 and sentenced him to undergo simple imprisonment for four months for the commission of offence u/s 279 RPC and to pay fine of Rs.500/- for the commission of said offence. He was also sentenced to undergo simple imprisonment of two months for the commission of offence u/s 337 RPC and to pay a fine of Rs.200/-. The accused shall further undergo simple imprisonment of two years for the commission of offence u/s 304-A RPC and is also sentenced to pay a fine of Rs.2000/-. In default of payment of fine; the accused shall undergo simple imprisonment for one month. In aggregate for the commission of all the above referred offences, the accused shall undergo simple imprisonment for two years and six months and shall pay a fine of Rs.2700/- in total. 7. Against the above conviction order dated 25.05.2006, an appeal was preferred by the accused-respondent herein before the Pr. Sessions Judge, Rajouri, who on appreciation of evidence, set aside the conviction and sentence. The concluding part of the order dated 30.08.2007 reads as under:- “The entire evidence in the present case relied upon pertains to the fact that the vehicle was being driven in high speed. Now the question is whether the driving vehicle in high speed, amounts to driving it rashly& negligently. The concluding part of the order dated 30.08.2007 reads as under:- “The entire evidence in the present case relied upon pertains to the fact that the vehicle was being driven in high speed. Now the question is whether the driving vehicle in high speed, amounts to driving it rashly& negligently. The proposition fell for determination in 1983 Criminal Law Journal 535, wherein their Lordships observed that:- “High Speed itself is not sufficient to hold that a driver is rash or negligent.” To constitute the offence u/s 304-A, act causing death must be the causa causans u/s: 304-A proof of rashness & negligence is essential. High speed itself may not in each case to be sufficient to hold that a driver is rash or negligence. In 1983 Criminal Law Journal 535, it was held that:- “Rash or negligent driving-High Speed itself is not sufficient to hold that a driver is rash or negligent.” In 2000-Criminal Law Journal 4362, it has been held that:- “merely driving at high a speed does not denote driving in rash & negligent manner. Nothing to establish rash & negligent driving by the accused which resulted in the death of cyclist, the accused not proved to be guilty for causing death. The conviction of the accused is not proper.” In 2007 Criminal Law Journal 1089, it has been observed that:- “Accused allegedly driving tempo-truck at high speed hit motor cyclist-path of movement of vehicles must be sought to be established in course of investigation and not be left open to ambiguity and doubt. Questions whether motor cyclist was taking turn on a green light or a red light remained unanswered as site plan had not been exhibited. Non- examination of investigating officer resulted in prejudice being caused to accused. Testimony of head constable that accused was driving vehicle at "high speed"- Expression "high speed" is an unclear expression to conclusively indicate that accused was driving vehicle in rash & negligent manner- Accused is entitled to be acquitted," So from the law laid down by the different courts it is clear that driving a vehicle with high speed does not denote driving the vehicle rashly & negligently. It is not proved by the prosecution beyond any shadow of doubt that the driver of the vehicle was driving it rashly & negligently. It is not proved by the prosecution beyond any shadow of doubt that the driver of the vehicle was driving it rashly & negligently. So as to endanger human life and as a result of rash & negligent driving he caused death of four persons and injury to various other, the driver cannot be held guilty on this count, of driving the vehicle at high speed. Merely that an event had happened or an accident took place, the cause of which is unknown, is not evidence of negligence. The second argument of the Ld. counsel for the defence is that the vehicle developed a technical defect as the lock of the steering got broken and vehicle went out of control, while the accused tried to stop, it turned turtle. The fact was to be proved by examining the Mechanic Mr. Manzoor Ahmed Shah, who issued certificate to this effect, but in order to suppress this fact, prosecution withheld the evidence of Manzoor Ahmed Shah PW No.14. So an adverse inference has to be drawn against the prosecution for non-production of mechanic to prove inspection report of Motor Vehicles Mechanic, which could have proved that the accident was due to some mechanical failure and not due to rash & negligent act on the part of the accused. This willfully withholding of evidence has caused great prejudice to the accused. The contention of ld. counsel for the defense is appreciable. It was incumbent upon Public Prosecutor to examine this witness also. So as to bring on record the mechanical defect developed by vehicle, this detect of not procuring the attendance of important Pws tends the prosecution case dented as a whole. In the facts& circumstances of the case only inference that could be drawn is that had the mechanic been examined, he would have in view of the certificate stated against the prosecution. Investigating officer, who conducted the investigation of the case namely Mohd. Rafiq Chohan has not been examined. The examination of the Investigating officer is valuable right of the accused and non-examination is such an infirmity, which causes prejudice to the accused in proving all contradictions brought on record during the cross-examination of the PWs. Here in the present case non-examination of I.O has caused prejudice to the accused. Had I.O been examined he was have stated about the defect that developed in vehicle by steering lock breaking. Here in the present case non-examination of I.O has caused prejudice to the accused. Had I.O been examined he was have stated about the defect that developed in vehicle by steering lock breaking. In order to hold accused guilty u/s: 304-A, RPC there must be acceptable evidence not of rashness or negligent act, but also that negligent act of accused was proximate cause of death and there was nexus between death, injury caused & rash or negligent act of accused, which is lacking in present file. The net result is that the appeal is accepted and the accused is acquitted of the charge leveled against him. File of this court be consigned to record and file of the lower court along with copy of the Judgment be sent to court of JMIC Thanamandi.” 8. From bare perusal of impugned judgment, it is evident that Sessions Judge has accepted the appeal and acquitted the respondent/accused on the grounds that mere high speed does not constitute the rash and negligent driving; that due to mechanical defect the accident occurred, which fact can be inferred by not examining the Motor Vehicle Mechanic and thirdly non-examination of I/O. 9. Relevant sections of RPC on the subjects are as under:- “279. Rash driving or riding on a public way.—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.” “304-A. Causing death by negligence.—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.” “337. Causing hurt by act endangering life or personal safety of others.—Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.” “338. Causing grievous hurt by act endangering life or personal safety of others.—Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.” 10. The Supreme Court in case of State of Karnataka v. Satish, (1998) 8 SCC 493 , held as under: “Merely because the truck was being driven at a “high speed” does not bespeak of either “negligence” or “rashness” by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by “high speed”. “High speed” is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by “high speed” in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. 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 the absence of any material on the record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “res ipsa loquitur”. There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.” “There being no evidence on the record to establish “negligence” or “rashness” in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. …”. 11. In view of above law, it is established that mere proof of “high speed” may not be sufficient. …”. 11. In view of above law, it is established that mere proof of “high speed” may not be sufficient. To prove the above offence under Sections 279, 337, 338 and 304-A RPC, the prosecution is also required to prove that the offending vehicle was being driven in a rash or negligent manner. There should be direct nexus between death/injuries caused with rash and negligent act. So finding of appellant court in this regard does not suffer from infirmity of law or facts. 12. In road traffic accident cases, the width of road, the type of way, the side in which vehicle was being driven at the time of accident and fact as to whether there were any sign of rubbing of tyres on spot of vehicle, are some of important facts, which are essential for inferring the rash and negligent driving of accused. These can only be inferred had the I/O been appeared and examined. Due to non examination of I//O, the site map and other documents prepared during investigation have not been proved. The law is clear that mere non examination of I/O would not be fatal for the prosecution case, but it depends upon case to case; when there are contradictions in statements of witnesses then non examination of I/O may be fatal; non examination of I/O has to be appreciated along with other attending circumstances of each case. Even PW mechanic who checked the vehicle has not been produced. Trial court has held that accused has not produced defense in this regard whereas appellate court has held that non examination of PW Manzoor Ahmed (mechanic), has caused prejudice to accused, because cause of accident has not been proved. Appellate court has also held that due to non examination of Mechanic, adverse inference can be drawn against prosecution; The appellate court has further held that, had mechanic been produced, then appellant/accused could have shown that accident had occurred due to mechanical fault. These findings of Appellate Court are neither perverse nor suffer from infirmity of law. 13. Law is clear that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of Section 439(4) Cr.P.C. High Court cannot reverse pure findings of facts based on appreciation of evidence, unless some perversity of law or facts is found. 13. Law is clear that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of Section 439(4) Cr.P.C. High Court cannot reverse pure findings of facts based on appreciation of evidence, unless some perversity of law or facts is found. The power of revision being discretionary, it has to be exercised judiciously, and not arbitrarily. Jurisdiction of the High Court under section 439, Cr.P.C. is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on point of law and there has consequently been flagrant miscarriage of justice. In the guise of revision, court cannot exercise power of appeal, where scope is large, because appellate court has full power to re appreciate the evidence like trial court, which is not vested to revisional court. 14. In view of above, this revision is devoid of merit, it is dismissed accordingly