JUDGMENT 1. - This is a revision petition directed against the judgment of the Addl. Sessions Judge Dausa camp; Bandikui, dated 14-12-1988 confirming the conviction and sentence passed by the trial court i.e, the Judicial Magistrate, Bandikui who convicted the petitioner for offence Under Section 304A, Indian Penal Code and sentenced to four month's rigorous imprisonment.when this revision petition came up for hearing on 8-3-1989 it was found that the petition could be disposed of finally at this stage only as a short point was involved but on that day hearing was deferred for want of record. The case has been listed for hearing after the record has been received. 2. Briefiy stating the facts of this case are that one lalluram, Pw 1, gave a written report to the A.S.I. police station, Bandikui who arrived on the spot of accident on 5-6-80 at 1.30 a m He in turn sent it to the station house Officer, police station, Bandikui for registration of the case under Section 304A Indian Penal Code According to this report on the previous night at about 8.00 P.M. a truck bearing registration No. RRL 8321 was carrying Stone load from karoli to Sikandra The stones were purchased by one Mithalal and truck was to be unloaded. Several persons including the complainant and deceased Gangaram boarded the empty truck which was stopped on the way because the labourers were to get down when they started getting down first of all Gangaram came down, but before he could be on the ground driver recklessly took the truck on reverse as a result of which it hit Gangaram who fell down and came under the right rear wheel of the truck. Gangaram was crushed to death and hence the aforesaid report was lodged. After completing the investigation a charge-sheet was submitted against the petitioner in the court of the Munsif and Judicial Magistrate, Bandikui where the accused was read a statement of allegation constituting offence under Section 304A, Indian Penal Code. In support of its case the prosecution examined 10 witnesses. The accused denied the allegations against him but the learned Magistrate after hearing the arguments convicted and sentenced the accused-petitioner as above. An unsuccessful appeal was filed before the Addl. In support of its case the prosecution examined 10 witnesses. The accused denied the allegations against him but the learned Magistrate after hearing the arguments convicted and sentenced the accused-petitioner as above. An unsuccessful appeal was filed before the Addl. Sessions Judge, Dausa Aggrieved by the conviction and sentence this revision petition has been filed Learned counsel for the petitioner drew my attention towards the charge framed in the case which reads as under: " fnukad 4&6&1980 dks fnu ds vkB cts ds yxHkx V~d ua0 vkj0vkj0,y0 8321 tks rsth o ykijokgh ls jk"V~h; ekxZ t;iqj ls vkxjk ijHk.kh Mkcj] ih0,l0 eksuiqj ds ikl pykdj xaxkjke ds VDdj ekjh ftlls mldh e`R;q gks x;h tks /kkjk 304&, vkbZ0ih0lh0 ds v/khu n.M+uh; gSA " The statement of the allegations was read over to the accused while recording the pleas. It was submitted that this was never the case of prosecution that the accused, while driving the vehicle rashly and negligently as mentioned in the charge, hit the deceased Gangaram and he died as a result of that. The prosecution case was that the passengers who were being carried in the truck Were asked to get down and while Gangaram was in process of getting down on the rear side the driver took the truck in reverse gear as a result of which Gangaram was hit from the back side of the truck and came under the wheel. It is submitted that at trial a new case has been made out that Gangaram bad already come on the road and while he was in process of taking down a cycle the truck was started as a result of which he lost the balance and fell under the wheel It is submitted that different witnesses of the prosecution have come with different stories, but all of them admit that it was the rear side of the truck which hit the deceased who fell under the wheel and died. It is submitted that the accused could not have seen as to who was standing behind the truck. 3. Learned Public Prosecutor first supported the judgment of the courts below but then concerned that in the light of the statement of allegations read over to the accused the prosecution story brought at trial is neither consistent nor in the consonance with the FIR. 4. 3. Learned Public Prosecutor first supported the judgment of the courts below but then concerned that in the light of the statement of allegations read over to the accused the prosecution story brought at trial is neither consistent nor in the consonance with the FIR. 4. I have heard learned Counsel for the parties and have perused the record. 5. It is extremely regrettable that neither the court nor the first appellate court, while looking into the case read the statement of allegations read over to the accused on 7-11-87 and it is still more regrettable that the learned Magistrate who recorded this plea did not read the record at that stage properly, else the position of the case would have been absolutely different. In the instant case there are different stories about Gangaram's getting down from the truck and it goes to the extent that Gangaram was already away from the truck but he had gone for the second time behind the truck in order to being down the cycle. In fact when the consistencies could not be brought in the statements of the witnesses learned Addl. Public Prosecutor requested the court to permit cross examination of the prosecution witnesses and that shows how the discrepancies have come in the statements of the witnesses. One thing is certain from perusal of the statements that the deceased had come under the rear wheel of the truck. Whether it was taken forward or backward has not been brought on the record and also as to in what manner and at what point of time he came under the wheel It has also not been proved properly to the hilt that the accused hit the truck first and then the deceased came under the wheel, as one of the witnesses has stated that he jumped on the road and then fell down under the wheel. Besides this, it cannot be conceived of that the driver was negligent in taking the truck reverse because it has also not been shown that he had not given the horn or asked the Khalasi to give him green signal. In fact the court below did not even care to read the ingredients of the offence under Section 304A, Indian Penal Code and half heartedly convicted and sentenced the accused to four months' rigorous imprisonment. In fact the court below did not even care to read the ingredients of the offence under Section 304A, Indian Penal Code and half heartedly convicted and sentenced the accused to four months' rigorous imprisonment. Section 304A, Indian Penal Code reads as under: "Causing death by negligence-Who ever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. There is either rashness or negligence and it cannot be both except in some circumstances. In this case there is no question of rashness as the truck is not said to have been moved even for few feet before crushing the man or that he had taken the truck reverse with such a speed that it could have otherwise been dangerous for the life of anyone who was on the rear side of the truck. But at best the prosecution could come with a case of negligence that driver did not first ensure from the Khalasi that there was none on the back side of the truck, but for proving that it was the duty of the prosecution to have brought positive evidence which is falling short in the case. Instead of looking into all this on the contrary the learned courts below did not distinguish between rashness and negligence and decided the case contrary to the settled principles of law. 6. As a result of the aforesaid discussion the revision petition is allowed. The conviction and sentence passed against the accused-petitioner by The courts below is set aside. The accused is on bail and need not surrender the bail bonds.Revision allowed. *******