JUDGMENT : Present revision application is filed by the revisionist – accused being aggrieved with the judgment and order rendered in Criminal Appeal No. 45/2006 by the Ld. 2nd Addl. (Ad-hoc) Sessions Judge at Navsari, Camp at Vansda confirming the judgment and order of conviction & order of sentence passed by Ld. JMFC, 1st Class dated 15.9.2006 passed in Criminal Case No. 564/2002, whereby the petitioner - org. Accused was convicted for offences punishable u/s. 279, 337 & 304-A of the IPC and respectively sentence for (i) simple 'imprisonment of three months and fine of Rs. 500/- and further S.I. of 10 days in case of in default of payment of fine, (ii) simple imprisonment of 3 months with fine of Rs. 250/- and further S.I. of 10 days in case of default of payment of fine and (iii) simple imprisonment of one year with fine of Rs. 1000/- with further S.I. of 3 months in case of default of payment of amount of fine, under the said offences. The petitioner was ordered concurrently to undergo the said sentences as provided u/s. 71 of the Indian Penal Code, the revisionist – org. accused. 2. The short facts of the case are that it was the case of the prosecution that on 7.9.2002 at about 10.15 a.m. one Sanjaybhai Budhiyabhai Chaudhary and owner of Jeep bearing RTO Registration No.GJ 15/C 9573, Shri Dhirubhai Balubhai had gone to Khdkala for filling Diesel from Bhanar. That, they had taken stop at about 10.30 a.m. in the boundary of Khdkala. At that time, when they were standing beside the road for removing air, one Suzuki Motor Cycle bearing RTO Registration No. GJ 19/F 3283 driven by the present Applicant, driving in a rash and negligent manner, carrying two pillion riders, dashed from the back side on the driver side of the mudguard of the Jeep. That, on account of the said accident, the one pillion rider Shri Bhavsing Chhotubhai sustained serious injuries. The said pillion rider subsequently expired. The said Sanjaybhai Budhiyabhai Chaudhary lodged the complaint on 7.9.2002 at about 16.10 p.m. with Unai Outpost. On the basis of the said complaint, Vansda Police Station has registered complaint and after investigation, charge sheet came to be filed against the Applicant for the offences punishable u/s. 279, 337, 304-A of the Indian Penal Code and u/s. 177 and 184 of the Motor Vehicle Act. On the basis of the said complaint, Vansda Police Station has registered complaint and after investigation, charge sheet came to be filed against the Applicant for the offences punishable u/s. 279, 337, 304-A of the Indian Penal Code and u/s. 177 and 184 of the Motor Vehicle Act. 2.1 Charge was framed and prosecution has examined total six witnesses, as also produced the ten number of documentary evidence. The learned trial Court having appreciated the said evidence recorded the finding as noted in the judgment which has been unsuccessfully challenged before the first appellate Court and thus present revision is filed. 3. Learned Advocate for the petitioner Mr.Gandhi would submit that there is no undeniable aspect that accident between the stationary jeep and the motorcycle has been taken place and the pillion rider has expired out of the said accident; but he would submit that looking to the provisions of Section 279 and 304-A of the IPC, the prosecution is required to prove criminal rashness and negligence. He would further submit that in the present case, none of the witnesses have deposed that accused was driving the motorcycle with rashness and negligence and therefore both the Courts below have committed serious error of law as well as understanding and analysis in the evidence. The impugned judgment is a flaw to the very basic connotation of rashness and negligence which is required to be proved to establish the offence under the Section 279 and 304-A of the IPC. He would further submit that according to the Inquest Panchnama though the accused applied the break, the motorcycle could not be stopped so there may be a mechanical defect in the motorcycle or at the most, there may be a judgment of error on the part of the accused which cannot be termed as rashness and negligence. He would further submit that no person would ride the vehicle knowing fully well that he will also get the injury in an accident and therefore question of intention would not come in a way. 3.1 By making above submissions, he would submit to allow this revision application. 4. He would further submit that no person would ride the vehicle knowing fully well that he will also get the injury in an accident and therefore question of intention would not come in a way. 3.1 By making above submissions, he would submit to allow this revision application. 4. On the other hand, learned APP would submit that one person has lost his life because of the rash and negligence driving of the accused who knowing fully well that jeep was stationary on a road side and yet he dashed the motorcycle from behind to the jeep which has resulted into death of pillion rider. The doctrine of Res-ipsa-loquitur would apply in the case which clearly indicates that accused was rash and negligence in driving the vehicle. He would further submit that both the courts below have succinctly; but thoroughly examined the evidence on record and hold the accused guilty and therefore that finding and analysis of evidence cannot be brushed aside by saying that there was a judgment of error, more particularly, in absence of evidence produced by the accused. He would further submit that there are concurrent findings of fact and therefore the findings arrived at by the Courts below should not be disturbed lightly. He would therefore submit to dismiss the revision application. 5. I have heard the learned Advocates for the rival sides at length and have also examined the records and proceedings. 6. Undoubtedly, the pillion rider in the present case has expired receiving injury on account of road accident. But, what requires to be seen and proved by the prosecution is the rash and negligence driving though both are not the same things as mere negligence cannot be construed rashness. The prosecution is also required to prove the degree of negligence and rashness and it should not be to amount the criminal rashness or criminal negligence. That one must bear in mind in such circumstances rashness has to be of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences. The words rashly and negligently are distinguishable and one is exclusive of the other. The same act cannot be rash as well as negligent. 7. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences. The words rashly and negligently are distinguishable and one is exclusive of the other. The same act cannot be rash as well as negligent. 7. In the present case, the prosecution has examined PW 1 – Sanjaybhai, complainant, at Exh.8 who has deposed that he is driver of the jeep which was kept on the road side. He has further deposed that suddenly one motorcycle came from behind and dashed with the backside of the stationary jeep whereby three persons including driver of the motorcycle received injury. He also deposed that motorcycle was coming in a speed. In the cross-examination, this witness admitted that he was standing in front of the jeep and has not seen that in which way the motorcycle was coming. He reached to the spot once he has heard the sound of accident. Thus, the said witness is not the eye-witness and has not seen the deceased riding the motorcycle rashly and negligently. 8. Another witness is examined by the prosecution is PW 2 –Dhirubhai Balubhai at Exh.10 and his testimony is almost the replica of deposition of PW 1. He has deposed in his testimony that he was standing near the jeep and reached to the spot once he heard the sound of accident. 9. Deposition of PW 3–Sundarbhai Bhagubhai examined at Exh.11 who is brother of the deceased is important. According to deposition of this witness, the spot of the accident was turning of the road. Suddenly the truck when came from opposite side and due to which motorcycle upon which he was sitting alongwith his brother collided with the said stationary jeep. Thus, from the deposition of this witness, it clearly appears that accused was not riding the rashly and negligently. 10. In order to prove the offence under Section 279 of the IPC, the prosecution is required to prove that accused was driving the vehicle 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. Likewise, to prove offence under Section 304-A of the IPC, it is essential that the death is caused by any person by doing any rash or negligent act. 11. Likewise, to prove offence under Section 304-A of the IPC, it is essential that the death is caused by any person by doing any rash or negligent act. 11. In Mahadev Prasad Kaushik v State of U P. [(2009)2 SCC (C) 834] the Hon’ble Apex Court in regards to negligence has observed following:- “Though the term “negligence” has not been defined in the Code, it may be stated that negligence is the omission to do something which a reasonable man, guided upon those considerations which considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do.” 12. What could be considered as a reckless or careless, it is trite to refer judgment in case R. vs. Briggs (1977) 1 WLR 605 1977)1 All ER 475 (CA), where it is observed as under: “...A man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act.” 13. In R. vs. Caldwell 1982 AC 341 : (1981) 2 WLR 509 : (1981) 1 All ER 961 (HL), it has been held thus: "Nevertheless, to decide whether someone has been 'reckless" whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would not be described as 'reck less' in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual on due consideration of the risk would not be deterred from treating it as negligible, could the ac caused be described as 'reckless' in its ordinary sense if, having considered the risk, he decided to ignore it. (In this connection the gravity of the possible harmful consequences would be an important factor To endanger life must be one of the most grave.) So to this extent, even if one ascribes to 'reckless' only the restricted meaning, adopted by the Court of Appeal in R. vs. Stephenson 1979 QB 695: (1979)3 WLA 193: (1979)2 All ER 1198 (CA) and Briggs (1977)1 WLR 605 : (1977)1 All ER 475 (CA), of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as 'objective' In current legal jargon Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective." 14. In Naresh Giri vs. State of MP. (2008)1 SCC (Cri) 324, it has been observed thus: “...Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences." 15. What could be necessary to prove the negligence and what are the ingredients has been stated in the judgment of the Hon’ble Apex Court in case of Syad Akbar v State of Karnataka [ (1980) 1 SCC 30 ]. “Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews vs. Director of Public Prosecutions 1937 AC 576: (1937)2 All ER 552 (HL) 'simple lack of care such as will constitute civil liability, is not enough'; for liability under the criminal law a very high degree of negligence is required to be proved " 16. Generally, it is presumed that a person died after motor accident is the victim of negligence of the driver. However, it is wrong presumption. In case of Mohammed Aynuddin vs. State of Andhra Pradesh [ (2000)7 SCC 72 ], the Hon’ble Apex Court held following: “It is a wrong proposition that for any motor accident negligence of the driver should be presumed. However, it is wrong presumption. In case of Mohammed Aynuddin vs. State of Andhra Pradesh [ (2000)7 SCC 72 ], the Hon’ble Apex Court held following: “It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely be cause a passenger fell down from the bus while boarding the bus, no presumption of negligence can be drawn against the driver of the bus.” 17. In background of the above settled proposition of law and on the critical examination of the aforesaid evidence of the prosecution side, in my opinion, the rash and negligent driving by the prosecution is not proved. No witnesses have deposed that accused was riding the vehicle in rash and negligent manner knowing fully well that his act would endanger to human life of someone else. 18. When a driving leads to an accident resulted into death or injury, the question arises as to whether it was rash and negligent driving. Mere negligence cannot be construed rashness. There are several other factors which are amongst to decide that whether rash and negligent driving was there. The Court is required to decide the issue that whether driving leads to an accident is due to rash and negligent driving, more particularly, when the charges are under Section 279 and 304.A of the IPC are levelled and at that time it is required to reach to the decision that criminal rashness or criminal negligence was there on the part of the accused. Thus, to sustain the charge under Section 279 and 304.A of the IPC, the prosecution is required to prove the rash and negligence on the part of the accused vis-a-vis knowing hazard and knowledge of the accident. All these aspects are missing in the present case and learned Courts below have failed to appreciate these aspects. 19. For the foregoing reasons, the revision succeeds. Both the learned Courts below have committed serious error in holding the petitioner as rash and negligent driving in absence of any evidence. All these aspects are missing in the present case and learned Courts below have failed to appreciate these aspects. 19. For the foregoing reasons, the revision succeeds. Both the learned Courts below have committed serious error in holding the petitioner as rash and negligent driving in absence of any evidence. Thus, both the judgment and order of the learned Courts below are quashed and set aside. The petitioner is acquitted of the charges levelled against him. Bail bond stands cancelled. The amount of fine if paid shall be refunded to petitioner on proper verification and identification. R & P be sent back.