ORDER : 1. The petitioner impugns judgment dated 18.11.2002 of the appellate court whereby the appellate court has dismissed appeal of the revisionist (hereinafter referred to as ‘accused’) which relates to the judgment of conviction and order of sentence dated 14.03.2000 passed by the trial court. 2. On 12.06.1994 at about 8:00 a.m. a jeep no. RRT 7312 being driven by the accused Shambhoo Lal hit a 7 years child, who was allegedly standing on roadside. The accident resulted into death of the child. The accused was charge sheeted and tried. 3. The trial court held that the accused drove the vehicle at a high speed as well as in a rash and negligent manner and it was on that account that the accident took place. The accused was convicted for offences under Section 279 and 304-A of the IPC and sentenced to various terms of imprisonment. 4. The accused challenged his conviction and sentence before the appellate court which confirmed conviction and sentence. 5. Both the trial court and the appellate court held the accused guilty after holding that the accused was driving the jeep at a high speed as well as rashly and negligently. Both the courts pressed into aid the doctrine of “res-ipsa-loquitur” to hold the accused guilty. This revision is directed against the said judgment passed by the appellate court. 6. Mr. Rajeev Bishnoi appearing on behalf of the accused has drawn my attention to the fact that the trial court applied principle of “res-ipsa-loquitur” which, according to learned counsel, cannot be applied in view of ocular evidence available on record. On merits, it is contended that prosecution has failed to prove beyond reasonable doubt that accused was guilty of said offences and both trial court as well as appellate court have erred in not appreciating the evidence in right perspective. 7. Contrary to it, learned Public Prosecutor for the State supported the judgments of courts below and submitted that there is no infirmity in the view taken by the trial court as also by the appellate court. He submits that the prosecution has proved beyond reasonable doubt that accident took place on account of act of the accused and his vehicle was involved in the accident. He further submits that accused has not been able to contradict the testimony of the witnesses. He submits that the prosecution has proved beyond reasonable doubt that accident took place on account of act of the accused and his vehicle was involved in the accident. He further submits that accused has not been able to contradict the testimony of the witnesses. He submits that there are no reasons to interfere with the impugned judgment hence revision petition is liable to be dismissed. 8. The point that arises for consideration is whether the conviction and sentence passed against the accused are sustainable. 9. I have examined the record and heard the learned counsel for the parties. 10. In the instant case, the fact of the accused driving the involved jeep is not disputed. The accused himself admitted in his statement under Section 313 of the Cr.P.C. that he had stopped at the spot after the collision. 11. While opening his arguments, learned counsel for the accused pointed out that so called both the Policemen eye-witnesses i.e. Barkat Khan (PW-1) and Ambalal (PW-4) were not present at the time of the accident. The rationale and justification for their presence have not been proved beyond reasonable doubt. They are bogus witnesses and their testimony was neither credible nor trustworthy, therefore, their testimony should be discarded. 12. In support of the case, the prosecution has relied upon testimony of four eye-witnesses, out of which Barkat Khan (PW-1) and Ambalal (PW-4) were Police personnel respectively. Remaining two eye-witnesses were father and mother of the deceased. Both Barkat Khan and Ambalal were allegedly on their way to execute a warrant and they were standing near the location of the incident i.e. at the bus stand. 13. Barkat Khan (PW-1) in his testimony has stated that the execution of the warrant was not his responsibility but it was the duty of his colleague Ambalal; that anyone could accompany to ensure proper service of warrant; that they were standing at the bus stand 10-15 minutes before the incidence. On the contrary another policeman Ambalal (PW-4) deposed that execution of the warrant was responsibility of Barkat Khan; that they arrived 1-2 minutes after incident and the jeep driver had hit Prakash and Deva both. Deva (PW-7) father of the deceased stated that police arrived after one or two hours. 14. The overall analysis of above statements rises serious doubts about the reason for the presence of these two policemen at the scene. Deva (PW-7) father of the deceased stated that police arrived after one or two hours. 14. The overall analysis of above statements rises serious doubts about the reason for the presence of these two policemen at the scene. Statements of these witnesses are fraught with significant contradictions. The corroboration of the fact that these two policemen were going for execution of any warrant is not substantiated by the entry of roznamcha diary which could have served as the most reliable supportive evidence. 15. It is not the case of Deva (PW-7), the father of the child, that the jeep also hit him whereas Ambalal (PW-4) has narrated to the effect that Deva was also struck by the jeep. Both of these witnesses gave different and contradictory versions to each other. 16. Based on the evidence discussed above, the presence of these two policeman witnesses at the time of incidence proves to be doubtful and the courts below did not consider the credibility of their presence as a key factor and misinterpreted the statements of eye-witnesses. 17. Coming to the next submission of learned counsel for the accused which is centered to the fact that the driver’s negligence cannot be considered proved based upon the statements of any of the witnesses. According to their stance, deceased child suddenly crossed the road and his parents had no control over him resulting into collision with the jeep, therefore, the prosecution has failed to establish that accused was driving the vehicle rashly or negligently. 18. It is further argued that none of the witnesses stated that the accused was driving the jeep rashly or negligently, although it was deposed that vehicle was coming at a high speed. According to him, the child suddenly crossed the road leading to collision with jeep. He also argued that for this reason, the ingredients of Section 279 of the IPC cannot be considered to be satisfied in the case, therefore prosecution has completely failed to prove the rash or negligent act of the accused. 19. A perusal of the impugned judgments reveals that appellate court as well as the trial court have concluded that driving at a high speed near a village situated on the highway and colliding with a child is indeed indicative of rash and negligent driving. 20. 19. A perusal of the impugned judgments reveals that appellate court as well as the trial court have concluded that driving at a high speed near a village situated on the highway and colliding with a child is indeed indicative of rash and negligent driving. 20. On examination of evidence available on record, it seems that Barkat Khan (PW-1) deposed to the effect that the jeep was coming at a very high speed. Another witness Deva (PW-7) stated that he had arrived from Jaipur in a truck and had just disembarked from it. Badami (PW-8) deposed to the effect that she was focused on unloading of the goods from the truck and it is not clear to her that whose fault caused the incident. The investigation officer Bhanwar Singh (PW-10) stated that at the time of accident jeep was moving in right direction and towards the road. 21. To bring home a charge under Section 279 of the IPC, prosecution has to prove not only the fact that accused was driving the vehicle on a public way but has also to prove that such driving was so rash and negligent as to danger human life or to be likely to cause hurt or injury to any other person. Criminal negligence or criminal rashness is an important element. Mere fact that the accused was driving the vehicle at high speed may not attract the provision of this section and prosecution has to prove something more. 22. No witness has asserted that the driver was operating his jeep rashly or negligently. It is also true that both mother and father of the child were pre-occupied in alighting the truck and unloading their luggage, leaving them no control over the activities of the child. In such a scenario with numerous people present on the roadside, if accused was driving the jeep rashly or negligently coupled with high speed, it was likely that someone from the crowd standing at the bus stand would also have been hit or injured specifically when the child was reported to have been standing on the side of the road. 23. Merely because the jeep 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 gave any indication, even approximately as to rash and negligence act of the accused. 23. Merely because the jeep 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 gave any indication, even approximately as to rash and negligence act of the accused. Rash and negligent manner is an opinion which may vary from person to person depending upon the perception of an individual. What may be “rash and negligent” for one may not be “rash and negligent” for another. High Speed is a relative term. For one person, driving at a speed of 80 may be high speed, rash and negligent and for another it may not be. 24. In a criminal trial, the burden of providing everything essentially to the establishment of the charges against the 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. In the absence of any material on record, no presumption of “rashness” or “negligence” could be drawn by invoking the maximum “res-ipsa-loquitur.” There being no evidence on record to establish negligence or rashness in driving the involved jeep on the part of the accused, the view taken by the appellate court as well as trial court in convicting the respondents is a perverse view. 25. Keeping in view the facts and circumstances of the case and on perusal of the records, I am of the view that the prosecution has failed to prove beyond reasonable doubt that conduct of the accused was rash and negligent and the accused is guilty of having committed offence under Section 279 and 304-A of the IPC by causing death of the victim. Learned counsel for the petitioner has been able to show that there is reasonable doubt as to whether the accident was caused on account of rash and negligent act of the accused. Accordingly, I am of the view that the judgments of the trial court as well as appellate court suffers from infirmities and courts below erred in law as stated above. Thus, I find merit in the instant revision petition. 26. In view of the above, giving benefit of doubt to the petitioner the impugned order dated 18.11.2002 of the appellate court as also the order of conviction and sentence dated 14.03.2000 of the trial court are set aside. Thus, I find merit in the instant revision petition. 26. In view of the above, giving benefit of doubt to the petitioner the impugned order dated 18.11.2002 of the appellate court as also the order of conviction and sentence dated 14.03.2000 of the trial court are set aside. The accused is acquitted of the charges punishable under Section 279 and 304-A of the IPC. 27. The revision petition is accordingly allowed and rule is made absolute. There shall be no order as to cost. The bail bond and surety bond of the accused are discharged. 28. However, keeping in view the provision of Section 437 A of the Cr.P.C. the petitioner is directed to furnish a personal bond in the sum of Rs. 50,000/- and a surety bond in the like amount before the Registry which shall be effective for a period of 6 months to the effect that in the event of filing of a special leave petition against the present order, on receipt of notice thereof, the revisionist shall appear before Hon’ble the Supreme Court.