JUDGMENT : By means of filing this criminal revision petition, petitioner has challenged impugned judgment dated 17.08.2017 delivered in Criminal Appeal No. 02(01) of 2017 by the Additional Sessions Judge, Gomati Judicial District, Udaipur affirming the judgment and order of conviction and sentence dated 14.12.2016 passed by the Judicial Magistrate, First Class, Udaipur in Case No. PRC (SP) 156 of 2014 convicting the petitioner for commission of offence punishable under sections 279 and 338 of the Indian Penal Code (IPC for short) and sentencing him to RI for 4 months for offence under section 279 IPC and RI for 1 year for having committed offence punishable under section 338 IPC. [2] The factual background of the case is as under: Abdul Hossain Chowdhury of village named Town Sonamura of Udaipur lodged a written ejahar with the Officer in Charge of RK Pur police station at Udaipur on 06.05.2014 alleging, inter alia, that when his father Ful Miah was going to Brahmabari from Sonamura market on his bicycle at about 9 O’clock in the morning on 30.04.2014 he was hit by the offending vehicle of the accused petitioner bearing registration No. TR 01D-2147(MAX). It was stated by the informant that petitioner was driving his vehicle in a rash and negligent manner. As a result, the vehicle hit his father and caused fatal injuries to him. Local people rescued his father and shifter him to hospital who suffered from fracture of bones in several parts of his body. Informant further stated that since he was engaged in the treatment of his father, filing of the FIR was delayed by 7 days. [3] Based on his FIR, RK Pur PS case No. 97 of 2014 under sections 279 and 338 IPC was registered and investigation of the case was taken up by police. [4] Sub Inspector Subir Malakar [PW-13] conducted the whole investigation of the case. During investigation he visited the crime scene and examined the material witnesses acquainted with the facts of the case and recorded their police statement under section 161 Cr.P.C. Hand sketch map of the place where the accident occurred was also drawn up by him and the material locations were pointed out in a separate index. The offending vehicle was seized which was examined by the Motor Vehicles Inspector [PW-9] who opined that there was no mechanical disorder in the said vehicle at the time of the occurrence. The offending vehicle was seized which was examined by the Motor Vehicles Inspector [PW-9] who opined that there was no mechanical disorder in the said vehicle at the time of the occurrence. After collection of the mechanical inspection report as well as the injury report of the victim [PW-6], the Investigating Officer arrested the accused and submitted charge sheet No. 153 of 2014 dated 01.10.2014 against the petitioner for having committed offence punishable under sections 279 and 338 IPC. [5] The Chief Judicial Magistrate received the charge sheet and on the facts of the case took cognizance of offence punishable under sections 279 and 338 IPC and thereafter he made over case to the trial court for conducting trial of the case in accordance with law. At the commencement of the trial, the learned trial Judge stated the following particulars of offence to the petitioner in terms of section 251 of the Code of Criminal Procedure (Cr.P.C for short), 1973: “That you, on 30th day of April, 2014, at about 09.00 am at a place near Town Hall under R.K. Pur PS, drove a vehicle (Max) baring Registration mark TR-01-D-2147 in a rash or negligent manner so as to endanger human life or cause injury and dashed Ful Miah Chowdhury, father of the complainant, who was proceeding towards Brahmmabari from Sonamura Market by riding by-cycle; and by doing such act so rashly or negligently, you caused grievous hurt to him and thereby committed offences punishable under sections 279/338 of the Indian Penal Code, 1860 and within the cognizance of this Court.” [6] Accused petitioner pleaded not guilty to the charge and claimed trial. [7] In the course of trial, as many as 14 prosecution witnesses [PW-1-PW-14] were examined and 13 exhibits [Exbt.1-Exbt.13] and the bicycle used by the victim [Exbt.MO1] were relied on by the prosecution. After the recording of prosecution evidence was over, petitioner was examined under section 313 Cr.P.C. He pleaded innocence and claimed that the charges were foisted on him. The trial Judge asked him as to whether he wanted to adduce any evidence in support of his defence. He replied in the negative. Finally, he stated that when he was going to a place called Rajarbagh at Udaipur with the passengers in his vehicle, police signalled him to stop the vehicle on the way. The trial Judge asked him as to whether he wanted to adduce any evidence in support of his defence. He replied in the negative. Finally, he stated that when he was going to a place called Rajarbagh at Udaipur with the passengers in his vehicle, police signalled him to stop the vehicle on the way. Following the signal, he stopped his vehicle when he was asked by the traffic police on duty to carry an injured person in his vehicle to the hospital. Accordingly he carried the injured in the vehicle and got him admitted in the hospital. Thereafter, he was implicated in this police case. [8] Among the 14 witnesses examined by the prosecution, Sri Suman Debnath [PW-1] saw the accident from in front of his house. He stated that he saw the offending vehicle hitting a bicycle on the road. Immediately he along with others detained the vehicle and shifted the injured in the offending vehicle. According to the PW, the accident occurred due to high speed of the vehicle. During his cross examination, counsel of the accused tried to demolish his evidence. It was suggested to the PW by the counsel of the accused that statement made by the witness at the trial was incorrect. The witness denied such suggestion. He also denied the suggestion of the counsel of the accused that he did not see the accident. [9] Sri Tapas Sarkar [PW-2] is no eye witness to the accident. He simply stated in his examination in chief that he was a constable at RK Pur police station. On 07.05.2014, the offending vehicle along with the documents of the vehicle and driving licence of the petitioner were seized by the Investigating Officer. As a witness to said seizure, the PW signed the seizure list. In his cross examination, a suggestion was made to the PW that he was not made aware of the contents of the seizure list before his signature was obtained. He denied the suggestion. [10] Sri Gouranga Kar [PW-3], a constable of police gave same evidence who stated at the trial that the Investigating Officer seized the offending vehicle along with its documents in his presence and procured his signature on the seizure list. In his cross examination he stated that he was not aware of the contents of the seizure list. [10] Sri Gouranga Kar [PW-3], a constable of police gave same evidence who stated at the trial that the Investigating Officer seized the offending vehicle along with its documents in his presence and procured his signature on the seizure list. In his cross examination he stated that he was not aware of the contents of the seizure list. [11] Kamal Hossain [PW-4] is also a seizure witness in whose presence the bicycle of the victim was seized by the Investigating Officer. This PW could not also throw any light as to how the accident occurred. [12] Abdul Hossain Choudhury [PW-5] is the son of the victim who reported the matter at the police station by lodging the ejahar [Exbt.7]. Obvioulsy the PW did not see the accident. He met his injured father in the hospital after he received an information about the accident. He came to know from his father that when he was going to Brahmmabari from Sonamura Chowmuhani on bicycle, the offending vehicle of the accused hit him and as a result of which he received fracture injuries in his body. It was further stated by the PW that since he was busy with the treatment of his injured father, filing of the FIR was delayed. The PW stated that he did not see the accident. However, he came to know from others that his father was riding his bicycle along the left side of the road. The offending vehicle which was also supposed to be driven along its left side came to the wrong direction and hit his father. The PW denied that he lodged a false complaint against the accused. [13] The evidence of Ful Miah Choudhury [PW-6] is significant because he is the victim of the said accident. According to the PW, he was going to Brahmmabari from Sonamura Chowmuhani on his bicycle. He took the left side of the road. Soon after he reached near Rajarshi Town Hall, the offending vehicle turned towards him at high speed in its wrong direction and hit him. As a result he slipped from his bicycle. Bones of his right hand got fractured as a result of which he had to undergo surgery. The PW also identified the petitioner as the driver of the offending vehicle during trial. The entire cross examination contained suggestions made by the counsel of the accused. The PW straightaway denied those suggestions. As a result he slipped from his bicycle. Bones of his right hand got fractured as a result of which he had to undergo surgery. The PW also identified the petitioner as the driver of the offending vehicle during trial. The entire cross examination contained suggestions made by the counsel of the accused. The PW straightaway denied those suggestions. [14] Sri Parimal Debnath [PW-7] stated that he was standing in a shop nearby the place of occurrence from where he had seen the speeding vehicle of the petitioner hitting a bicycle. Immediately, the PW along with others detained the vehicle and shifted the injured to hospital in the offending vehicle. His cross examination also contained several suggestions made to him by the counsel of the accused. It was stated to the PW that he made a incorrect statement before the trial court. It was also stated to him that he did not see the accident and the victim was not also shifted to the hospital in the offending vehicle. The suggestions were denied by the PW. [15] Sri Gautam Sen [PW-8] is the owner of the offending vehicle who stated that petitioner was the driver of his vehicle on the material date. He did not say anything about the accident except saying that the petitioner informed him that his vehicle was taken to police station. [16] Sri Rabindra Ch. Barman [PW-9] is the Motor Vehicles Inspector who stated that after examination of the offending vehicle he was of the view that the vehicle had no mechanical disorder at the time of occurrence. He recorded his views in his report [Exbt.5] which was identified by him at the trial. In cross, he denied the suggestions of the counsel of the accused that report was prepared by him without proper inspection. [17] Dr. Sukomal Sarkar [PW-10] is a Medical Officer who examined the victim [PW-6] after he was brought to the District Hospital at Udaipur immediately after the accident. In his report [Exbt.6] he recorded his findings wherein he stated that he found olecranon fracture in the injured caused from road traffic accident. The injured was then referred to GBP and AGMC hospital at Agartala for better management. [18] Sri Kusum Jit Saha [PW-11] is a mere seizure witness in whose presence the bicycle of the victim was seized. In his report [Exbt.6] he recorded his findings wherein he stated that he found olecranon fracture in the injured caused from road traffic accident. The injured was then referred to GBP and AGMC hospital at Agartala for better management. [18] Sri Kusum Jit Saha [PW-11] is a mere seizure witness in whose presence the bicycle of the victim was seized. Sri Gautam Dey [PW-12] is the scribe of the ejahar who simply stated that he wrote down the ejahar at the dictation of PW-5 and after ascertaining the correctness of his recording, the same was handed over by him to PW-5 who filed it at the police station. [19] Sri Subir Malakar [PW-13] is the Investigating Officer who stated that he seized the offending vehicle, got it examined by a Motor Vehicles expert and also examined the material witnesses of the case. He also collected the injury reports of the victim from hospitals and the charge of rash and negligent driving having been established against the accused during the investigation, he submitted charge sheet against him. In his cross examination, he stated that he did not examine any of the house inmates of Jogendra Ghosh whose house was located adjacent to the place of occurrence. [20] Dr. Santosh Reang [PW-14] stated that he attended the victim [PW-6] at GBP & AGMC hospital at Agartala who was admitted in the hospital with injury received from road traffic accident. According to the PW, the injured was admitted in hospital on 30.04.2014 and he was discharged from the hospital on 22.05.2014. The PW was also of the view that fracture olecranon (upper end of ulna) was found in the body of the injured. In his cross examination, the PW stated that the injured was referred from Udaipur hospital to GBP hospital at Agartala. He denied the suggestion of the counsel of the accused that he submitted report without actually examining the injured. [21] On appreciation of evidence, the trial court held that the offending vehicle went to a wrong direction and hit the accused. According to the learned trial court it so happened due to carelessness of the driver who drove his vehicle at a very high speed and consequently lost control over the vehicle. [21] On appreciation of evidence, the trial court held that the offending vehicle went to a wrong direction and hit the accused. According to the learned trial court it so happened due to carelessness of the driver who drove his vehicle at a very high speed and consequently lost control over the vehicle. Learned trial court disbelieved the defence case projected by the accused in his examination under section 313 Cr.P.C that he only shifted an injured person to hospital in his vehicle and police implicated him in a false case. By a detailed judgment, the trial court held the accused guilty of offence punishable under section 279 & 338 IPC and having recorded the reasons as to why the benefit of Probation of Offenders Act was not given to the convict, sentenced him to imprisonment and fine as aforesaid. In appeal, the learned Additional Sessions Judge concurred with the findings of the trial court observing as under: “10. I have also gone through the hand sketch map of PO and its index prepared by the IO marked as Exhibits-1 and 2 respectively which shows that the accident took place near the residence of the Superintendent of Police, Gomati District, Udaipur and also that the road at that juncture takes a turn just in front of Rajarshi Town Hall. It is possible that if a vehicle going from Brahhmabari towards Sonamura Chowmohani is not driven in a careful manner then there are chances that it may met with an accident at the curvature. It is true that in a case instituted under Sections-279/338 of IPC the prosecution must prove that the offending vehicle was being driven in a manner which was so rash or negligent so as to endanger human life or likely to cause hurt or injury to any person. It means that fact of rash and negligent driving must be reflected from the evidence of the witnesses. It is not necessary that the witnesses must pronounce the words “rash and negligent” in their depositions. In case in hand, in my opinion high speed itself amounts to rash and negligent driving when the convict-appellant did not control its speed at the curvature and thus; it does not matter that none of the prosecution witnesses has used the words „rash and negligent? driving in their depositions. 11. In case in hand, in my opinion high speed itself amounts to rash and negligent driving when the convict-appellant did not control its speed at the curvature and thus; it does not matter that none of the prosecution witnesses has used the words „rash and negligent? driving in their depositions. 11. I have also perused the examination of convict-appellant under Section-313 Cr.P.C wherein he denied the allegations stating simply that he transferred the injured to the hospital and police had falsely implicated him in the case. It is worthy to mention that he had not given any reasonable explanation with regard to the incriminating circumstances appeared against him in the prosecution evidence. He also did not adduce any evidence in his defence. 12. For the aforesaid reasons, I find no merit in the instant appeal and thus; it is liable to be dismissed.” [22] The petitioner assailed the impugned judgment mainly on the following grounds: (i) 7 (seven) days delay in lodging the FIR is not properly explained. (ii) Investigating Officer did not examine any of the passengers who were travelling in the offending vehicle at the time of occurrence. As a result the truth was not established. (iii) Statement of the accused that he was falsely implicated in the case because he carried one injured person in his vehicle was not taken care of by the courts below. (iv) The case was planted against the accused to facilitate compensation from Motor Accident Claims Tribunal. (v) None among the eye witnesses informed the matter to police. [23] In the course of arguments, Mr. D. Datta, counsel appearing for the petitioner has argued that the site map drawn by the Investigating Officer does not point out to the exact location where the accident took place and the distance of the eye witnesses from such location to ascertain as to whether it was possible for those witnesses to see the accident from the place where they were positioned. Relying on the decision of this court in Santosh Chandra Shil Vs. State of Tripura reported in (2017) 2 TLR 80, learned counsel of the petitioner submits that for similar reasons this court acquitted the petitioner from accusation of rash and negligent driving under sections 304A & 279 IPC. According to Mr. Relying on the decision of this court in Santosh Chandra Shil Vs. State of Tripura reported in (2017) 2 TLR 80, learned counsel of the petitioner submits that for similar reasons this court acquitted the petitioner from accusation of rash and negligent driving under sections 304A & 279 IPC. According to Mr. D. Datta, counsel of the petitioner, the courts below arrived at the conclusion of guilt of the petitioner without appreciating the facts for which the judgments of the courts below should be set aside. [24] Mr. S. Ghosh, learned Addl. P.P has on the other hand argued that rash and negligent driving on the part of the petitioner has been established by prosecution by adducing adequate, cogent and consistent evidence. The trial court after critical examination of such evidence has held the petitioner guilty and convicted and sentenced him for the said offence which has been upheld by the Additional Sessions Judge. According to Mr. Ghosh, learned Addl. P.P, an innocent person received fatal injury and huge loss as a result of the careless driving of the accused on a busy public road for which he needs to be punished adequately. Finally, it is argued by Mr. Ghosh, learned Addl. P.P that petitioner could not make out any ground to interfere with the concurrent findings of the courts below. Mr. Ghosh, learned Addl. P.P, therefore, urges the court to dismiss the criminal revision petition and maintain the judgment and order of conviction and sentence of the petitioner. [25] It is true that the passengers of the offending vehicle would have been the most competent witness to present the true facts before the court. The Investigating Officer did not examine anyone of them. Other than the victim [PW-6] and PW-1 & PW-7 there is no eye witness to the occurrence. Among them PW-6 said that the offending vehicle was at high speed. PW-1 said that he was standing at the gate of his house and PW-7 said that he was standing at a shop from where he had seen the occurrence. The distance between the house of PW-1 and the place of occurrence, his exact position at the time of occurrence are not brought to record. PW-1 said that he was standing at the gate of his house and PW-7 said that he was standing at a shop from where he had seen the occurrence. The distance between the house of PW-1 and the place of occurrence, his exact position at the time of occurrence are not brought to record. Similarly the distance between the shop where PW-7 was standing at the time of occurrence, his position and visibility of the PO from that place where the most essential facts which were required to be presented before the court to arrive at a correct decision with regard to the guilt of the accused. It appears from the judgments of the courts below that they did not enquire into these essential facts. Merely because the witnesses have said that the offending vehicle was at high speed at the time of occurrence accused cannot be held guilty of offence punishable under section 279 & 338 IPC. [26] In Ravi Kapur Vs. State of Rajasthan reported in (2012) 9 SCC 284 it was held by the Apex Court that the mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone’s negligence. Negligence in the case of an accident can be gathered from the attended circumstances. In the given context, victim [PW-6] who was a 53 years old man was riding his bicycle in one of the most crowded place of the city when the offending vehicle of the accused allegedly hit him. Extent of the damage caused to the bicycle of the victim could have been an important piece of evidence in this case. The Investigating Officer has not thrown any light on this aspect. The seizure list [Exbt.9] of the bicycle does not also contain any description with regard to the damage caused to the bicycle from the accident. The courts below did not also record any finding on this aspect in their judgments. Allegedly the victim slipped from his bicycle as a result of the collision between the bicycle and the offending vehicle. Quite naturally, the cyclist would have slipped from his bicycle even for a slight collision between a vehicle and a bicycle and such fall from a bicycle is likely to cause fracture of bones particularly when the cyclist was about 53 years old. Quite naturally, the cyclist would have slipped from his bicycle even for a slight collision between a vehicle and a bicycle and such fall from a bicycle is likely to cause fracture of bones particularly when the cyclist was about 53 years old. Therefore, the injury received by the victim does not indicate to a rash driving. Even if for arguments sake, it is assumed that the offending vehicle was being driven at high speed, speed is not only the criteria of rash and negligent driving. [27] In this regard the Apex Court in Mrs. Shakila Khader & Ors. Vs. Nausheer Cama & Ors. reported in (1975) 4 SCC 122 has succinctly held that the main criterion for deciding whether the offending vehicle was rash and negligent is not only the speed. The other factors like the width of the road, density of traffic at the location and the factors resulting in offending vehicles going to the wrong side are also the material considerations which have to be looked into by the court for attributing the responsibility to the accused for the accident. Observation of the court in this regard is as under: “6. .........….The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic and the attempt, as in this case, to overtake the other vehicles resulting in going to the wrong side of the road and being responsible for the accident.........….” [28] Same ratio was decided by the Apex Court in State of Karnataka Vs. Satish reported in (1998) 8 SCC 493 wherein it has been held by the Apex Court that merely because the vehicle was being driven at a high speed does not bespeak of either negligence or rashness by itself. Prosecution will have to discharge its burden by bringing on record materials to establish as to what it meant by high speed in the given facts and circumstances of the case and in absence of such materials on record, presumption of rashness and negligence cannot be drawn by the court by invoking the maxim “res ipsa loquitur”. In this regard, the Apex Court vide paragraph 4 of the judgment has observed as under: ““4. In this regard, the Apex Court vide paragraph 4 of the judgment has observed as under: ““4. 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……………….” [29] The learned Additional Sessions Judge in paragraph 10 of his judgment seems to have drawn up a presumption that if a vehicle proceeding to Sonamura Chowmuhani from Brahmmabari is not driven very carefully there is chance of accident because there is a turn on the road in front of Rajarshi town hall near the residential building of the Superintendent of Police. As discussed above, the Apex Court in the case of State of Karnataka Vs. Satish (Supra) has held that criminality is not to be presumed subject of course to some statutory exceptions. Obviously in the present context, no statutory exception has been brought on record. The investigating agency has done a very shallow investigation in the case. No evidence with regard to the width of the road, its shape and the density of traffic on the road at the time of occurrence was collected during investigation. No photograph of either the offending vehicle or the bicycle of the victim was taken to assess the intensity of the collision. Admittedly, the driver managed to stop his vehicle immediately after it hit the bicycle of the victim and carried the victim to the nearby hospital and got him admitted there. No photograph of either the offending vehicle or the bicycle of the victim was taken to assess the intensity of the collision. Admittedly, the driver managed to stop his vehicle immediately after it hit the bicycle of the victim and carried the victim to the nearby hospital and got him admitted there. Even though the accident resulted in injury and loss to the bicycle rider, the accident does not ipso facto make the petitioner liable for the accident in absence of strict proof of rash and negligent driving against him. [30] Having considered the case in the light of judgments of the Apex Court cited to supra, this court is of the view that the charges could not be proved against the petitioner beyond doubt. [31] Resultantly, the criminal revision petition is allowed. The conviction and sentence of the petitioner under sections 279 and 338 IPC is set aside. The petitioner stands acquitted of the charges. His bail bond stands discharged. [32] In terms of the above, the case is disposed of. Return back the LC record. Pending application(s), if any, also stands disposed of.