ORDER : This revision petition is filed challenging the judgment dated 31.07.2012, passed by the learned Fast Track Court-III, Hospet, in Criminal Appeal No.11/2012, confirming the judgment of conviction and order of sentence dated 10.01.2012, passed by the Addl. Civil Judge and JMFC., Hospet, in C.C.No.2093/2010, wherein the petitioner-accused was convicted for the offences punishable under Sections 279, 304(A) of Indian Penal Code (for short ‘IPC’) read with Section 183 of Indian Motor Vehicle Act (for short ‘MV Act’). 2. Brief case before trial Court is that on 13.03.2010 at about 4:00 p.m, the complainant and his son-in-law by name Ramesh were riding on their bicycles from Mariyammanahalli towards Hospet carrying plastic pots. At that time, accused being the driver of Tipper lorry bearing No.35C 9666 drove the same in a rash and negligent manner so as to endanger human life or safety of others dashed against the bicycle of said Ramesh near water filter tank on N.H. No.13. Immediately after occurrence of the accident, the driver of the lorry ran away from the spot. The said Ramesh sustained grievous injuries on his head and thigh and they succumbed to the injuries. The case has been registered for the offences punishable under Section 279, 304A of Indian Penal Code (for short ‘IPC’) read with Section 183 of Indian Motor Vehicle Act (for short ‘IMV’ Act) against petitioner. 3. Learned Magistrate after considering evidence of PWs.1 to PW.10 and Exs.P1 to P10 and also statement of accused under Section 313 of Cr.P.C., convicted the accused for the above said offences and sentenced the accused to undergo simple imprisonment for a period one month and fine of Rs.300/for the offence punishable under Section 279 of IPC in default of payment of fine accused shall further undergo simple imprisonment for a period of one month. The accused is also sentenced to undergo simple imprisonment for a period of six months and fine of Rs.500/for the offence punishable under Section 304(A) of IPC in default of payment of fine accused shall further undergo simple imprisonment for a period of one month. The accused was also sentenced to pay fine of Rs.100/for the offences punishable under Section 183 of IMV Act, in default of payment of fine accused shall undergo simple imprisonment for two days. The accused was also sentenced to pay fine of Rs.100/for the offences punishable under Section 183 of IMV Act, in default of payment of fine accused shall undergo simple imprisonment for two days. The same was challenged before first appellate court by filing the appeal, which also came to be dismissed by impugned order. Hence, this revision petition. 4. Heard Shri Manjunath G.Patil, the learned counsel for the revision petitioner and Smt. Girija Hiremath., the learned HCGP for respondent-State. Perused the records of the trial Court and also the impugned judgments of both the Courts. 5. Learned counsel for the revision petitioner argued that the judgment of conviction and order of sentence passed by the trial Court and also first appellate Court are bad in law. The Courts failed to appreciate the evidence and not considered the evidence regarding rash and negligent driving. PW.1Dharmappa is the father-in-law of deceased. Except the self serving statement of PW.1 nothing is elicited to substantiate the case of prosecution. PW.6 is said to have witnessed the incident from the distance where the lorry was parked by the side of the road and it was not possible to see what had happened on the road at the spot. Both the Courts have overlooked it. PWs.1 and PW.6 are the interested witnesses. PWs.2 and 4 have not supported the case. The essential ingredients of Sections 279 and 304(A) of IPC are not produced. PW.8G.Panduranga, who is the police officer, admitted that the complaint was not written by the complainant and it is written by his staff. The evidence of PW.10Tulajappa Shankrappa is not trustworthy. Therefore, the said conviction has resulted in miscarriage of justice. Hence, he prays to allow the petition. 6. Against this, learned HCGP supported the judgment of trial Court and appellate Court stating that the witnesses have supported the case. Both the Courts have appreciated evidence in a proper perspective. Both the Courts have rightly came to conclusion that the incident occurred due to the rash and negligent driving of the driver of offending vehicle. Hence, it is the petitioner, who is responsible for the accident and both the Courts have rightly convicted the accused. 7. I have perused the records of the case and also evidence of witnesses. 8. PW.1K.Dharmappa who is the complainant has stated that himself and his son-in-law were selling plastic pots. Hence, it is the petitioner, who is responsible for the accident and both the Courts have rightly convicted the accused. 7. I have perused the records of the case and also evidence of witnesses. 8. PW.1K.Dharmappa who is the complainant has stated that himself and his son-in-law were selling plastic pots. When they were returning near water tank, a lorry over took another vehicle and dashed against them. The lorry ran over on the deceased and he died in the hospital. PW.1 has admitted that numbers of vehicles were passing on the road on that day. It is suggested that in a state of intoxication, the deceased fell down and he died. He has denied the said suggestion. PW.2 Hanamanth is the witness for Ex.P.3panchanama has not supported the case. PW.4 also signed the Ex.P.2 and he has stated that no vehicles were seized in his presence and he has signed the panchanama in the police station. PW.4M.Manjunath also stated that the police have taken his signature at the police station. PW.5K.Sadashivappa, who is motor vehicle inspector has stated that the vehicle has no mechanical defect. He has admitted in the cross-examination that he cannot say whether the damage to the lorry is a new or old one. PW.6Galeppa stated that he was selling fruits near place of accident. He further stated that a lorry came overtaking on the vehicle to from right side and touched to the deceased bicycle. The deceased fell down and lorry ran on the deceased. Then he called the ambulance. He identified the accused. He has admitted that he is a relative of deceased. He has stated that he has seen the incident from a distance of 40 feet. He has stated that he was selling the fruits near transport office and he cannot see from the transport office what incident will take place. He has also admitted that the road in front of near transport office is not consists of some pits. But his evidence cannot be brushed aside simply he was at some distance. PW7Ramanjani is a lorry cleaner. He has not supported the case of prosecution. PW.8G.Panduranga, the retired P.S.I, who registered the case and conducted investigation. PW.9Gopi Dasappa is the mechanic and owner of the said lorry. He has also not supported the case of prosecution. PW.10Tulajappa Shankarappa is the investigating officer, who has stated about investigation done by him. 9. PW7Ramanjani is a lorry cleaner. He has not supported the case of prosecution. PW.8G.Panduranga, the retired P.S.I, who registered the case and conducted investigation. PW.9Gopi Dasappa is the mechanic and owner of the said lorry. He has also not supported the case of prosecution. PW.10Tulajappa Shankarappa is the investigating officer, who has stated about investigation done by him. 9. It is evident that both the complainant and deceased were going on bicycle by the side of the road. When the accused tried to overtake another vehicle, his lorry dashed to the deceased bicycle. Ex.P.10 is the sketch map wherein it shows that the NH.13 road is tar road and it is about 24 feet wide and there is a 5 feet kachcha road. It is evident that the lorry was coming from T.B.dam side. The spot panchanama i.e., Ex.P.2 also indicates that the incident took place 2 feet away from the tar road. The bicycle was totally damaged and right side bumper of the lorry was also damaged. So looking into the place of occurrence and Ex.P.10the map, it is evident that though road is very wide and this deceased and other persons were moving on bicycle on left side of the side rough road, the driver-petitioner came in a rash and negligent manner overtaking the vehicle and dashed to the cycle. Admittedly, the bicycle cannot go fast. The incident occurred only when the accused overtook another vehicle in a rash and negligent manner and high speed. It is evident that though in the highway the drivers are driving the vehicles in a speed, but they are expected to take all the precautions while overtaking the vehicles. It is evident that there it is a wide tar road. The deceased was rider of bicycle. Simply because, the eye witnesses are the relatives, their evidence cannot be disbelieved. It appears they are carrying some old plastic pots on bicycles. PW.1 was just behind the deceased. So due to the impact, the deceased fall down and lorry ran over on him and injured died. The front wheel of the tipper ran over on the thighs of the deceased. 10. It appears they are carrying some old plastic pots on bicycles. PW.1 was just behind the deceased. So due to the impact, the deceased fall down and lorry ran over on him and injured died. The front wheel of the tipper ran over on the thighs of the deceased. 10. Therefore looking into the spot panchanama, sketch, evidences of witnesses, the width of road, the sketch map of incident and place of incident, it is evident that the driver of the tipper has not taken due care and caution expected by driver driving vehicle in a given situation. Simply because it is the national highway, the driver is not expected to drive the vehicle as per his whims and fancies. The defence of the accused is only that of denial. Evidence of PWs.1, 5, 6 and 10 along with spot panchanama and sketch corroborates the allegation of prosecution case. In the statement of accused under Section 313 of Cr.P.C the accused has not stated anything or explained as to how the accident occurred. Simply he has denied the evidence and has not led any defence evidence nor stated anything as to how accident occurred. 11. It is true that initial burden of proving the allegations is always on the prosecution. The prosecution has to prove its case beyond all reasonable doubt as alleged. Once, the prosecution able to show before the Court that the accident occurred due to rash and negligent driving of the driver and which resulted in the death of the deceased, then it is for the accused under Section 106 of Indian Evidence Act to explain the circumstances under which the accident occurred. Making contrary to the suggestion in the evidence would not held the prosecution case. It is suggested that in a drunken state, the bicycle was driven and deceased met with an accident, but no such material is found in the post mortem in the stomach of deceased. On the other hand, there is a crush injury on the left leg of the deceased. The cause of death is due to the shock and hemorrhage, as a result of crush injury of left leg. Therefore, when the accused has failed to explain the circumstances under which the accident took place, as required under Section 106 of the Indian Evidence Act 1872, there are no reasons to disbelieve the evidence placed by the prosecution. 12. The cause of death is due to the shock and hemorrhage, as a result of crush injury of left leg. Therefore, when the accused has failed to explain the circumstances under which the accident took place, as required under Section 106 of the Indian Evidence Act 1872, there are no reasons to disbelieve the evidence placed by the prosecution. 12. The Section 304-A of Indian Penal Code, 1860 explicitly lays down that only that “act” which is “so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished…”. Thus the section itself carves out the standard of criminal negligence intended to distinguish between those whose failure is culpable and those whose conduct, although not up to standard, is not deserving of punishment. Criminal rashness is hazarding a 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 be caused. The Criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the 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, which, having regard to all the circumstances out of which the charge arisen, it was the imperative duty of the accused person to have adopted. The hazard must of such a degree that injury was most likely to be occasioned thereby. The distinction between the “rashness” and “negligence” is that while in the former, the doer knows about the consequences, but in the latter, the doer is unaware of the consequences. A rash act is a negligent act done precipitately. Negligence is the genus, (sic)of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not. 13. A rash act is primarily an overhasty act and it opposed to a deliberate act; even if it is partly deliberate, it is done without due thought and caution. Criminal rashness is hazarding a dangerous act with the knowledge that it is so and that it may cause an injury. There is a breach of positive duty. 14. 13. A rash act is primarily an overhasty act and it opposed to a deliberate act; even if it is partly deliberate, it is done without due thought and caution. Criminal rashness is hazarding a dangerous act with the knowledge that it is so and that it may cause an injury. There is a breach of positive duty. 14. 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. “Negligence” means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence perseor the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. 15. If the evidence is considered in the light of these principles it is evident that both the Courts have rightly appreciated the evidence in a proper perspective and have assigned reasons for arriving at a conclusion that the accident took place due to rash and negligent driving of the driver of the revision petitioner. I do not find any ground to interfere with the findings of both the Courts. There are no illegality or perversity in the findings of both the Courts. The appeal is devoid of merits and liable to be dismissed. I do not find any ground to interfere with the findings of both the Courts. There are no illegality or perversity in the findings of both the Courts. The appeal is devoid of merits and liable to be dismissed. Accordingly, I pass the following; ORDER (i) The Criminal Revision Petition filed under Section 397 read with Section 401 Of Code of Criminal Procedure is hereby dismissed. (ii) The judgment of conviction and order of sentence dated:10.01.2012 passed in C.C.No.2093/2010 by Addl. Civil Judge and JMFC., Hospet, which is confirmed by Fast Tract Court-III, Hospet in Criminal Appeal No.11/2012, dated 31.07.2012, is hereby confirmed. In view of disposal of main petition, pending applications, if any, stand disposed off as they do not survive for consideration.