ORDER : 1. By this criminal revision, applicant has challenged the legality and propriety of the judgment dated 22.11.2018 passed by Additional Sessions Judge, Kondagaon, District Kondagaon, Chhattisgarh (hereinafter referred to as “First Appellate Court”) in Criminal Appeal No.34 of 2018 affirming the judgment dated 09.04.2018 passed by Chief Judicial Magistrate, Narayanpur, District Narayanpur, Chhattisgarh (hereinafter referred to as “Trial Court”) in Criminal Case No.29 of 2016 whereby the Trial Court has convicted and sentenced the applicant/accused as under :- Conviction Sentence Under Section 304A of Indian Penal Code, 1860 : Rigorous imprisonment for 1 year with fine of Rs.200/-, in default of payment of fine amount, additional imprisonment for 15 days Under Section 279 of Indian Penal Code, 1860 : Simple imprisonment for 3 months with fine of Rs.300/-, in default of payment of fine amount, additional imprisonment for 15 days Under Section 337 of Indian Penal Code, 1860 : Simple imprisonment for 3 months. All sentences were directed to run concurrently 2. Briefly stated facts of the case, are that, on 08.01.2016, at about 7.00 PM, applicant/ accused Ajay Kumar Yadav was driving the Mahindra Marshal vehicle bearing registration No.CG-02-2093 (hereinafter referred to as “offending vehicle” rashly and negligently on public way in front of Mahamaya Petrol Pump at village Singoditrai, Narayanpur, Chhattisgarh, as a result of which, Ramlal Sethiya (PW-5) got injured and Kamleshwar Barbasia died. Thereafter, First Information Report (Ex.P/1) was lodged bearing Crime No.3 of 2016; merg intimation (Ex.P/2) was registered at Police Station Narayanpur, on the basis of which, offending vehicle and documents were seized vide Ex.P/3; spot map was prepared vide Ex.P/5; a damaged motorcycle was seized vide Ex.P/6; panchnama of dead body of Kamleshwar was conducted and dead body was sent for postmortem; mechanic examination of offending vehicle was conducted and prepared its report vide Ex.P/8. Statements of witnesses were taken and accused was arrested. After completion of investigation, charge-sheet was filed. 3. The prosecution has examined injured Ramlal Sethiya (PW-5), Pradeep Kumar Vaidya (PW-1), witness of spot map as well as reporter, Lalit Thakur (PW-3), Yashwant (PW-8), Satish Kumar Majumdar (PW-2), Gaya Prasad Nag (PW-4), Pawan Kumar (PW-7), seizure witness, Ravinder Singh (PW-9), vehicle mechanic, who has examined the offending vehicle and given report vide Ex.P/8, Dr. K.K. Sori (PW-6), who has conducted the postmortem of deceased Kamleshwar and given its report vide Ex.P/7 as well as Asharam Uike (PW-10), Inspector. K.K. Sori (PW-6), who has conducted the postmortem of deceased Kamleshwar and given its report vide Ex.P/7 as well as Asharam Uike (PW-10), Inspector. 4. On the basis of statements of aforementioned witnesses, it has been concluded by the Trial Court that offending vehicle was being driven by applicant/accused and accident took place on the public way in front of Mahamaya Petrol Pump, as a result of which, Ramlal Sethiya (PW-5) got injured and Kamleshwar Barbasia died. These facts were not challenged during the argument. 5. Learned counsel for the applicant would submit that accident occurred due to sudden bursting of rear tyre of offending vehicle, over the driver had no control. He would further submit that to prove the crime under Sections 279, 337, 304A of Indian Penal Code, 1860 (hereinafter referred to as “IPC”), it is necessary to prove the rashness or negligence of driver and burden of proof is upon the prosecution. The prosecution has been unable to discharge its burden of proof as witnesses have only stated that offending vehicle was moving at a high speed. He would also submit that it has not been made clear what was the speed of offending vehicle, which does not prove its negligence and thus, prosecution has failed to prove the negligence and rashness on the part of accused, who has driving the offending vehicle. It has been lastly submitted that judgment of conviction and order of sentence passed by the Trial Court and affirmed by the First Appellate Court be set aside and applicant be acquitted of the charges framed against him. Reliance has been placed upon the judgments rendered by Hon’ble Supreme Court in cases of Braham Dass v. State of Himachal Pradesh, (2009) 7 SCC 353 and State of Karnataka v. Satish, (1998) 8 SCC 493 , to buttress his submissions. 6. Per contra, learned State counsel would support the impugned judgment of conviction and order of sentence passed by the Trial Court and affirmed by the First Appellate Court. He would further submit that prosecution witnesses have clearly stated the negligence on the part of the accused. He argued that the place of incident is highly populated area where people's residences, houses and shops are located. He would further submit that prosecution witnesses have clearly stated the negligence on the part of the accused. He argued that the place of incident is highly populated area where people's residences, houses and shops are located. It is a market area where one should drive at a very slow speed, but accused was driving his vehicle very rashly and carelessly, due to which, accident took place. It is further contended that during the statements of prosecution witnesses, a defence was taken on behalf of accused that accident happened due to bursting of tyre and he could not control it. In the market area, the driver should maintain such a speed so that he can control the vehicle, if necessary. In this situation, even if tyre burst suddenly, it reflects that driver was not careful enough, due to which, accident occurred and he could not control the vehicle. Therefore, prosecution has proved its case beyod reasonable doubt that accident occurred due to rash and negligent driving of the accused, as such, instant criminal revision is liable to be rejected. 7. I have heard learned counsel for the parties and perused the record with utmost circumspection. 8. Perusal of evidence of prosecution witnesses, there is no doubt that accident occurred due to driving of accused/applicant on public road, as a result of which, Ramlal Sethiya (PW-5) got injured and Kamleshwar Barbasia died. Therefore, the only question to be discussed is whether negligence and rashness of the driver/accused has been proved ? 9. The main witness of the incident is injured Ramlal Sethiya (PW-5), who has stated in his evidence that while he was crossing the road, accused/applicant was driving offending vehicle, due to which, Kamleshwar died and he himself got injured on his left shoulder. Then, offending vehicle was hitting an electric pole, due to which, accused also got injured. This witness has not clearly stated anywhere that as to how accused was driving the offending vehicle, which caused the accident. He further stated about collision of offending vehicle with an electric pole, in which, accused himself suffered injuries. In such a situation, Ramlal Sethiya (PW-5), who himself got injured in the accident, has not made any clear statement regarding negligence of the driver/accused. 10. The second important witness is Pradeep Kumar Vaidya (PW/1), who has seen the accident. He further stated about collision of offending vehicle with an electric pole, in which, accused himself suffered injuries. In such a situation, Ramlal Sethiya (PW-5), who himself got injured in the accident, has not made any clear statement regarding negligence of the driver/accused. 10. The second important witness is Pradeep Kumar Vaidya (PW/1), who has seen the accident. He has stated that when he was going home, offending vehicle came at a high speed and caused accident. According to First Information Report (Ex.P/1), distance of place of incident to Police Station is only 500 meters and First Information Report (Ex.P/1) was registered only after 15 minutes. In cross-examination, he has stated that his face was towards the house and he was going inside the house, hence, he could not see at what speed and in what manner, offending vehicle was coming, but heard the loud sound of accident. Thus, this witness has not clearly stated as to what was the negligence of the driver/accused. 11. Another important witness is Lalit Thakur (PW-3), who has Auto Parts Shop in front of Petrol Pump. He stated that accused was driving the offending vehicle from Narayanpur side and hit the injured as well as deceased. Then, offending vehicle hit a parked vehicle and ended up in a ditch. This witness has not clarified that what was the speed of offending vehicle. In cross-examination, he stated that driver was driving the offending vehicle at a very high speed. If speed alone can be termed as ‘negligence’, it becomes necessary to clarify that what were the conditions at the spot and what was the speed of vehicle, but this witness has been unable to clarify the speed of offending vehicle. 12. Other important witness is Yashwant (PW-8), who has stated that offending vehicle was going fast from Narayanpur towards Antagarh when accident took place, but he has also not state speed of vehicle. 13. Satish Kumar Majumdar (PW-2) has stated that after seeing the crowd, he went to spot and people told him that there was an accident involving offending vehicle, in which, Ramlal Sethiya and Kamleshwar got injured. He admitted in his cross-examination that he did not see the incident because he was in the shop. 14. 13. Satish Kumar Majumdar (PW-2) has stated that after seeing the crowd, he went to spot and people told him that there was an accident involving offending vehicle, in which, Ramlal Sethiya and Kamleshwar got injured. He admitted in his cross-examination that he did not see the incident because he was in the shop. 14. Gaya Prasad Nag (PW-4) has stated in his evidence that he had received information that Kamleshwar died in an accident and he had seen Bolero vehicle at Police Station. This witness has declared hostile as it was not clear that he saw the accident. 15. Thus, it is clear from statements of aforementioned witnesses that witnesses have stated that accident occurred due to offending vehicle being at high speed, but they have not clarified what was the speed of offending vehicle. Apart from this, above prosecution witnesses have not clearly stated that there was any negligence on the part of driver/accused. 16. Ravinder Singh (PW-9), mechanic is an important witness, who has certified the prosecution document (Ex.P/8). The said document is mechanical inspection report of offending vehicle, which was prepared by Police themselves. Being a prosecution document, it cannot be denied. He has proved the inspection report (Ex.P/8) and stated that after examining the offending vehicle on 03.03.2016, he had found that there were mudguards, tyre rod and balance rod bands on both sides; both side panels and bonnet were damaged; back glass and door glass were broken; rear tyre was torn and offending vehicle was not in a running condition. The applicant/accused has taken his defense with regard to bursting of tyre. In his cross-examination, Ravindra Singh (PW-9) has stated that if a tyre of a moving vehicle bursts, vehicle becomes uncontrolled and instead of moving straight, vehicle turns to the direction, in which, tyre got burst. He has further stated that rear tyre of offending vehicle got burst, which could have caused the accident. Thus, prosecution witness himself has supported the defence on behalf of applicant/accused and stated that tyre of offending vehicle burst, which could not be rebutted. 17. From perusal of the spot map (Ex.P/5), it is reflected that offending vehicle was going from Narayanpur towards Antagarh and as per argument of defence, due to bursting of tyre on right side, offending vehicle kept getting pulled in same direction. 17. From perusal of the spot map (Ex.P/5), it is reflected that offending vehicle was going from Narayanpur towards Antagarh and as per argument of defence, due to bursting of tyre on right side, offending vehicle kept getting pulled in same direction. Spot map (Ex.P/5) also shows the position of offending vehicle and place of incident is right side of road. In such a situation, defence of applicant/accused cannot be ignored. 18. Even in the judicial precedents relied upon by the learned counsel for the applicant/accused, it has been determined by Hon’ble Supreme Court that accused cannot be said to be negligent merely on the basis of high speed of vehicle. Rather, it is the responsibility of prosecution to prove the negligence and rashness of the driver. 19. In case of Braham Dass (supra), Hon’ble Supreme Court has observed in paragraph-8 as follows :- “8. Section 279 deals rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not (sic) negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved.” 20. Similarly, in case of Satish (supra), Hon'ble Supreme Court has held as follows :- “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. 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. 5. 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. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged.” 21. If I consider the facts and circumstances of instant case in the light of above judicial precedents, it becomes clear that place of incident is a public way. It is not clear from the statements of prosecution witnesses as to what was the negligence or rashness of applicant/accused as a driver. His bail bonds shall stand discharged.” 21. If I consider the facts and circumstances of instant case in the light of above judicial precedents, it becomes clear that place of incident is a public way. It is not clear from the statements of prosecution witnesses as to what was the negligence or rashness of applicant/accused as a driver. Mechanical examination of offending vehicle was proved by mechanic Ravindra Singh (PW-9) himself vide Ex.P/8, which makes it clear that right rear tyre of offending vehicle got burst. According to opinion of mechanic, vehicle starts pulling towards the direction, in which, tyre bursts. In the case at hand, offending vehicle is said to have crashed on the right side of road. The prosecution witnesses have been unable to state the speed of offending vehicle on the spot. In such a situation, in the light of above judicial precedents, this Court finds that such accident was caused by bursting of tyre and driver had no control on it. As such, it cannot be said that driver had any idea of bursting of tyre. In the above circumstances, prosecution has been unable to prove that accident occurred due to rashness or negligence of driver. Therefore, conviction and sentence of the accused is not found worthy of being upheld. 22. For the foregoing discussion, it is found that case of the prosecution against the applicant has not been proved beyond all reasonable doubt as negligence and rashness of applicant/driver has not been proved. Hence, findings of Trial Court as well as First Appellate Court are not found to be sustainable in the eyes of law. 23. In the result, instant criminal revision is allowed. The judgment of conviction and order of sentence passed by the Trial Court and First Appellate Court are set aside. The applicant is acquitted of the charges framed against him under Sections 279, 337 and 304A of IPC. The applicant has been stated to be on bail. However, his bail bonds shall remain in force for a period of six months in view of provision contained in Section 437-A of Cr.P.C. If there is no need to appear in the Superior Court, he will be deemed free from bail bonds. If the applicant has deposited the imposed fine amount, the same shall be returned to him. 24. However, his bail bonds shall remain in force for a period of six months in view of provision contained in Section 437-A of Cr.P.C. If there is no need to appear in the Superior Court, he will be deemed free from bail bonds. If the applicant has deposited the imposed fine amount, the same shall be returned to him. 24. Record of the Courts be sent back along with a copy of this order forthwith for information and necessary compliance.