JUDGMENT 1. - This appeal is directed against the Judgment dated Feb. 6, 1980, of the Judicial Magistrate No. 2, Jodhpur, acquitting the accused respondent for the offence under Section 304-A and 279 I.P.C. and Section 3/112 of the Motor Vehicles Act, 1939. 2. The case is more than 12 years old. According to the prosecution, it was on July 5, 1977, that an accident took place by truck No. R.J.J. 304 near Nana house on the High Court Road. Jodhpur, resulting in the death of Raj Kumar, a boy, aged 13 years. As per the prosecution, a marriage-party was staying in the Nana House. At about 2 A.M., in the night, the above truck came from the Raikabagh side and hit the boy, who came under the wheels and died at the spot. The truck was stopped after covering a distance of 20-25 ft. The accused was apprehended and was taken to the police station. The first information report of the occurrence was lodged by Chetan Dass, the same night, at 2.10 A.m. at the police station Udaimandir, Jodhpur, where a case under Section 304-A, I.P.C. was registered. 3. After investigation, the accused was challaned, tried and acquitted by the learned Magistrate as aforesaid. The learned Magistrate has acquitted the accused on the ground that the prosecution failed to establish that the accused was driving the vehicle rashly and negligently. The learned Magistrate has also said that the offence under Section 3/112 of the Motor Vehicles Act was also not made not. 4. I have heard learned Public Prosecutor for the State and Shri P.N. Mohanani & Shri Surendra Surana, counsel for the accused. The findings recorded by the learned Magistrate that it was not proved that the accused was driving the vehicle rashly and negligently is un-assailable. It was 2 A.M. in the night and no one could expect that a boy would come on the road at this hour of the night. The learned Magistrate has recorded a finding that the three alleged eye witnesses, namely, Chetan Dass, Arjun Lal had not in fact seen the occurrence. In the site-plan, the deceased was mentioned as 'name not known'. There are circumstance to indicate that the accused was not rash or negligent. The learned Magistrate has recorded a finding that the three alleged eye witnesses, namely, Chetan Dass, Arjun Lal had not in fact seen the occurrence. In the site-plan, the deceased was mentioned as 'name not known'. There are circumstance to indicate that the accused was not rash or negligent. The fact that the truck came to stop only after covering a distance of 20-25 fts shows that it was not being driven at a fast speed. The mere fact that the truck came to the right side of the road, would not go to establish that the accused was driving the vehicle negligently or rashly. It his came in evidence that a taxi was standing on the road at that time. The taxi driver has come in the witness box. He was not asked as to on which side of the road his taxi was standing. The circumstance and the site-plan, however, indicate that there was some obstacle on the left side of the road. Initially, the truck was being driver on the left side of the road and it was that obstacle which led the driver to were the truck to the right side. Apparently, therefore, if the boy came on the road at this hour of the night which otherwise was open and empty, it cannot be said that the accused was rash or negligent in driving the vehicle. I do not find substantial grounds for interference with the judgment of the learned Magistrate. The prosecution having failed to prove its case, the accused was entitled to acquittal. 5. Accordingly, the appeal fails and it is hereby dismissed.Appeal dismissed. *******