JUDGMENT 1. - Petitioner Surgyani was tried by the learned Munsif and Judicial Magistrate, Kumbhalgarh for offences under sections 304-A and 279, IPC, in Criminal Case No. 762/80. By the judgment dated 6-1-84, the learned Munsif and Judicial Magistrate found him guilty on both the counts and sentenced him to undergo R.I. for six months' and to pay a fine of Rs. 200/- and in default to undergo S.I. for one month on the first count. For the second count, he was sentenced to undergo R.I. for one month. Aggrieved, Surgyani filed an appeal before the learned Addl. Sessions Judge, Rajsamand, being Criminal Appeal No. 12/84. This appeal was dismissed by the learned Addl. Sessions Judge vide judgment dated 14-9-1984. Aggrieved, the petitioner has come by way of this revision petition. 2. Briefly stated the prosecution story is that the petitioner was driving truck GTX 5021 on 30-12-79 on public high way connecting Gomti to Rajnagar. The truck was being driven rashly and negligently by him, with the result that the truck met with an accident and caused the death of one Naharsingh, who was sitting on the truck over tin-sheets which were being carried in the truck. The incident is said to have been witnessed by PW 1 Vardisingh and PW 2 Nirbhaysingh. PW 3 Lalsingh, who was working in his field nearby rushed to the scene of occurrence after he heard the truck turning turtle. An information of this incident was received by Head Constable Phoolsingh at Police Station, Kelwara on 31-12-79, upon which he went to the scene of occurrence and inspected the same. He found the truck over-turned on the Gomti-Kankroli Road. A person, namely, Naharsingh was lying dead nearby. Phoolsingh prepared 'panchayatnama' and site-plan after inspecting the site. The truck was got examined by PW 6 Mohansingh M.T.O. 3. In his statament recorded under section 313, Cr. PC the petitioner admitted that he was driving the truck but he denied that he was driving the truck at an excessive speed. According to him, the truck was running on a gradient and at the foot of the gradient was a pit which could not be seen from a distance. One of the tyres of the truck went into the pit, with the result that the truck turned-turtle. 4. According to him, the truck was running on a gradient and at the foot of the gradient was a pit which could not be seen from a distance. One of the tyres of the truck went into the pit, with the result that the truck turned-turtle. 4. The learned trial Magistrate was of the view that the truck was being driven at an excessive speed of 40-50 kms. per hour. He was of the view that since the truck was being driven at a gradient, the driver ought to have slowed it down but it was not so slowed, with the result that the truck turned turtle. In his opinion, driving of the truck at a speed of 40-50 kms. per hour was an act of rashness and negligent. The learned Magistrate was also of the view that the pit could have been visible to the petitioner. Upon such premises he was of the view that the truck was being driven rashly and negligently by the petitioner and this rashness and negligence resulted in an accident causing the death of Nahar Singh who was travelling on the truck. The learned Addl. Sessions Judge agreed with the view of the learned Magistrate on these aspects of the matter. 5. Learned counsel for the petitioner urges that in the present case, it cannot be said that the truck was being driven at an excessive speed. The truck was driven on a national high way and speed 40-50 kms. per hour cannot be said to be excessive. He submits that the pit at the foot of the gradient of the road could not have been seen by the petitioner, with the result that one of the wheels of the truck went in the pit and the truck over-turned, resulting in death of Nahar Singh. It is submitted that when the pit was not, visible from a distance, the petitioner could not have averted the accident and, therefore, he could not be held guilty for offence under section 279 and under section 304-A, IPC. He should, therefore, be acquitted of both the charges and the sentences passed on the said counts should be set aside. 6. Learned public prosecutor opposes the revision petition and submits that in the present case one person had died due to rash and negligent act of the petitioner. He should, therefore, be acquitted of both the charges and the sentences passed on the said counts should be set aside. 6. Learned public prosecutor opposes the revision petition and submits that in the present case one person had died due to rash and negligent act of the petitioner. The petitioner ought to have slowed down on a gradient and had he so slowed down, the pit should have been visible to him and he should have averted the same timely. 7. I have considered the rival contentions and have perused the evidence produced by the prosecution. I have also considered the explanation furnished by the petitioner. 8. I may state at the out set that there is no doubt that the petitioner was driving the truck in question on the fateful day. Evidence of PW 1 Vardi Singh and PW 2 Nirbhay Singh proves this fact beyond doubt. There is absolutely no doubt that the truck did over-turn and Nahar Singh died as a result of this accident by being crushed under tin-sheets which were being carried in the truck. On this score testimony of Vardi Singh and Nirbhay Singh has not been challenged. Now, the only question is whether truck was being driven at an excessive speed. PW 2 Vardi Singh has deposed that the truck was being driven at 40-50 kms. per hour. PW 2 Nirbhay Singh has stated that the truck was being driven at an excessive speed. He has, however, not given any estimate regarding its speed. The truck in question was being driven on a national high way. The road was 25 ft. wide and there was a gradient. This is in prosecution evidence itself that at the foot of the gradient was a pit. There is no evidence on record to show that from what distance this pit could have been visible to the driver. PW 1 Vardi Singh himself is a driver. He has admitted in cross-examination that on a open road trucks are usually driven at a speed of 40-50 kms. per hour. Thus on the admission of this witness who is a truck driver himself, the truck was not being driven at any excessive speed. He has also admitted that the pit was not visible. He has further admitted that because of this very pit 4-5 accidents had earlier taken place. per hour. Thus on the admission of this witness who is a truck driver himself, the truck was not being driven at any excessive speed. He has also admitted that the pit was not visible. He has further admitted that because of this very pit 4-5 accidents had earlier taken place. These admissions of Vardisingh go to show that the petitioner was not driving the truck at any excessive speed. This evidence further shows that the pit at the foot of the gradient was not visible easily. PW 2 Nirbhay Singh has, of course, deposed that truck was being driven at an excessive speed but he has not given any estimate of the speed. Hence, his testimony is of no avail against the petitioner. 9. Learned P.P. pointed out that Nahar Singh was being carried atop the tin-sheets placed in the truck and this itself was an act of negligence and rashness. It, however, appears that this question was never put to petitioner when he was examined under section 313, Cr. PC. Therefore, this circumstance cannot be used against the petitioner. All that the petitioner was asked was that Naharsingh was crushed underneath the tin-sheets carried in the truck. If the prosecution wanted to use this circumstance against the petitioner, it ought to suggested to the learned trial court to put to petitioner that Naharsingh was being carried atop the tin-sheets in the truck. Since such a question was not put, it would not be legitimate to use this circumstance against the petitioner. 10. The testimony of PW 6 M.T.O. goes to show that the wheel of the truck went in the pit at the foot of the gradient and this caused overturning of the truck. He also admitted that the breaks of the truck had failed and leaf-sheet was broken. This goes to show that the accident took place merely because pit was not visible from a distance and one of the tyres of the truck went into the pit. The explanation given by the petitioner in the present case is, therefore, supported by the prosecution evidence itself. State of Rajasthan v. Gurbux Singh (1983 Cr. LR (Raj.) 643) . This goes to show that the accident took place merely because pit was not visible from a distance and one of the tyres of the truck went into the pit. The explanation given by the petitioner in the present case is, therefore, supported by the prosecution evidence itself. State of Rajasthan v. Gurbux Singh (1983 Cr. LR (Raj.) 643) . following observations were made:- "As regards the offence of rash and negligent driving, the law is well settled that merely because the vehicle was being driven at a fast speed would, by itself, not justify the inference that the driver was driving the vehicle rashly and negligently. The speed of the vehicle is one of the factors which has to be taken into consideration for determining as to whether it was being driven rashly or negligently. The other factors which are of relevance are; the width of the road; the density of the traffic; the condition of visibility; the efforts made by the driver to avoid the accident." In the present case, there is no evidence that there was any other traffic on the road at the time the accident took place. Hence the speed of 40-50 kms. per hour cannot be said to be excessive in itself. It is unfortunate that the truck did meet with an accident because a pit which could not be seen from a distance existed on the road and contributed to the overturning of the truck. The investigating officer has not stated from what distance the pit could have been visible. There is no other evidence from what distance the pit could have been made visible if the truck could have been slowed down sufficiently. This is true that while driving on a gradient, the petitioner ought to have slowed down the truck, but when road was clear and there was no other traffic, the petitioner was relieved of this liability to some extent. 11. Here, I may state that there is difference between civil and criminal liability. The petitioner can be said to have driven the truck with some rashness and negligence so far as civil liability is concerned. So far as criminal liability is concerned, it was the duty of the prosecution to have established beyond shadow of reasonable doubt that the truck was being driven rashly and negligently. The petitioner can be said to have driven the truck with some rashness and negligence so far as civil liability is concerned. So far as criminal liability is concerned, it was the duty of the prosecution to have established beyond shadow of reasonable doubt that the truck was being driven rashly and negligently. There remains an element of doubt about the rashness and negligence regarding driving of the truck by the petitioner in this regard and the petitioner is entitled to benefit of this doubt. 12. No other point was urged before me. 13. In view of what I have stated above, this revision petition is accepted and the conviction and sentences passed against the petitioner for offences under sections 279 and 304-A, IPC are set aside. The petitioner is on bail and he need not surrender to his bail bonds. The bail bonds are cancelled.Revision allowed. *******