P.D. Rajan, J.

The revisional power is conferred on the High Court with an object of general supervision of the court below in order to correct the grave failure or miscarriage of justice arising from the erroneous orders. The revision petitioner challenges the judgment of concurrent finding in Crl.A.No.92 of 2000 of the Additional Sessions Judge -II(Fast Track), Palakkad for offence under Section 279, 304 IPC on the ground that there was misreading of evidence and thereby error occurred in the judgment of the lower court. He was the accused in C.C.No.11 of 1998 of Judicial First Class Magistrate, Pattambi and convicted under Section 279 and 304A IPC, and sentenced to undergo rigorous imprisonment for six months under Section 304 A IPC and no separate sentence under Section 279 IPC. Against the conviction of the trial court accused preferred the above criminal appeal in which the conviction of the lower court is confirmed. In this context, I may observe that the revisional power is discretionary and there is no vested right of revision where as such vested right ensured in appeal.

2. The facts necessary for the indictment can be narrated as below. On 26.8.1997 at 19.45 hours, revision petitioner was driving KL15 1566 KSRTC bus in a rash and negligent manner along the Pattambi - Kulappulli public road. When the bus reached at the place of occurrence, it knocked down the deceased who was riding a bicycle with PW2 through the Pattambi-Kulappully road. The accident was due to rash and negligent driving of the bus by the revision petitioner. The Sub Inspector of Police, Pattambi registered a case and after completing investigation, he laid charge before Judicial First Class Magistrate, Pattambi.

3. To substantiate the rash and negligent act of the revision petitioner, prosecution adduced both oral and documentary evidence in the trial court. The evidence consists of oral testimony of PW1 to PW14 and documentary evidence of Ext.P1 to P10. The trial court also marked MO1 as material object. After analysing the oral and documentary evidence, the trial court convicted the revision petitioner.

4. The learned counsel appearing for the revision petitioner contended that the trial court convicted the accused without proving the identity of the driver, thereby the trial court, made a wrong appreciation of the evidence. Moreover, there is no evidence to prove the rash and negligent driving by the revision petitioner. When there is no evidence that the revision petitioner was driving the vehicle in a rash and negligent manner so as to endanger human life, he is entitled to get the benefit of doubt. The fundamental rules in the matter of appreciation of evidence has been violated, which resulted in miscarriage of justice is a good ground for invoking revisional jurisdiction.

5. The rash and negligent driving of a vehicle on a public way to endanger human life or likely to cause hurt or injury to another person is an offence affecting the public safety is punishable under Chapter XIV of the Indian Penal Code. In negligence there is no intention for a consequence, which happens without any previous planning on the part of the person doing. In negligence, the wrong doer breaks a positive duty and in "rashness" he breaks a negative duty. Otherwise in "rashness" the person does any act which he is bound to obtain and he breaks that negative duty and "in negligence" the person who commit a wrongful act, fails to observe a positive duty and he does not advert to the act which is his duty to do. The difference between the two has been explained by Lord Esher M.R in Le Lievre and Dennes v. Gould (1989(1) QB 491). It was held as follows:-

"The question of liability for negligence cannot arise at all until it has been established that the man, who has been negligent, owed some duty to the person who seeks to make him liable for his negligence. A man is entitled to be a negligent as he pleases toward the whole world if he owes no duty to them. If one man