JUDGMENT : Vijay Kumar Vyas, J. 1. The criminal revision has arisen out of order dated 31.08.2005 passed by Additional Sessions Judge No. 2, Bundi in Criminal Appeal No. 58/2000 by which the appeal was partly allowed and the judgment dated 31.10.2000 passed by Additional Chief Judicial Magistrate, Bundi in Regular Criminal Case No. 68/97 was confirmed with respect to conviction but was modified with respect to sentence and the sentence awarded for offence under Section 304-A, IPC of rigorous imprisonment for one year was reduced to six months simple imprisonment. For the offence under Section 279 IPC, three months rigorous imprisonment and for the offences under Sections 3/181 & 146/196 of the M.V. Act one month rigorous imprisonment each, were confirmed. 2. Brief Facts of the case are that on 14-4-1997 at about 9 AM, complainant Babu Lal, (PW-1) gave an oral information to SHO Police Station Kota Dam that in the morning at about 8:30 AM, his nephew Dinesh Kumar, aged about 11 months who moves by crawling only, was playing in front of main gate of his house, a Tractor No. MP 14/G/451 along with trolley came from village side, being driven by appellant Harnath Singh rashly and negligently, gave a hit to the child (Dinesh) who died on the spot. Prahlad Gurjar informed him, whereupon he rushed to the spot and found the child dead. Tractor was also lying there. Incident has been witnessed by mother of the child. On this information, police registered an FIR NO. 54/1997 (Ex.P-1). During investigation site was inspected, photography was conducted, and inquest report of the dead body was prepared. Vehicle was seized. Statements of witnesses were recorded. A notice under Section 133 of the Motor Vehicle Act was given to the owner Dalpat Singh of the vehicle . Postmortem of the dead body was conducted. After due investigation a charge-sheet was filed against the appellant and owner of the vehicle Dalpat Singh. 3. Learned trial court read over the substance of accusations to the appellant Harnath Singh for offence under Sections 279, 304-A IPC, and Sections 3/181, and 146/196 of the M.V. Act. Learned trial court also read over the substance of accusations to co-accused Dalpat Singh for offence under Section 146/196, 5/180 of the M.V. Act. Both of them denied the charges and claimed trial. Prosecution examined 11 witnesses and exhibited 10 documents. Learned trial court also read over the substance of accusations to co-accused Dalpat Singh for offence under Section 146/196, 5/180 of the M.V. Act. Both of them denied the charges and claimed trial. Prosecution examined 11 witnesses and exhibited 10 documents. Accused were examined under Section 313 Cr. P.C. They stated that evidence adduced by the prosecution is false and further stated that they have been falsely implicated. No evidence of any kind was adduced from defence side. After hearing the parties, learned trial court vide judgment dated 31.10.2000 convicted and sentenced, as stated above, both the accused for all the offences charged with. 4. On appeal filed by both the accused, learned Additional Sessions Judge No. 2, Bundi, after hearing the parties, vide order dated 31.08.2005, upheld the order of conviction passed against both the accused and modified the sentence as stated herein above. 5. Learned counsel for the petitioner submits that as per prosecution, three ladies Sushila, Kanti, and Saroj were eye witnesses of the incident but Kanti has not been examined. Sushila (PW-9) is mother of the deceased and presence of Saroj (PW-11), is doubtful as her name has not been disclosed in the FIR. Sushila (PW-9) has turned hostile. She says in her cross-examination that she reached the spot after one hour of the incident Saroj (PW-11), has admitted in cross-examination that there are two curves in between her house and the place of occurrence. In site memo location of this eye witness has not been shown, Therefore, her narration as eye witness cannot be believed. 6. Learned counsel for the petitioner has submitted in alternate, that if conviction is upheld, the sentence passed against the appellant may be modified to the extent of period of custody, the appellant remained in during the trial and hearing of appeal. 7. Learned Public Prosecutor submits that there is no discrepancy in the statements of the witnesses. Non-examination of Kanti, eye witness does not affect the story of the prosecution. Evidence rendered by Sushila (PW-9) and Saroj (PW-11), is enough to prove the offence. 8. I have given thoughtful consideration to the rival submissions and gone through all the material available on record. 9. As per prosecution Kanti, Saroj, Sushila and Prahlad Gurjar were eye witnesses. Kanti has not been examined for the reasons best known to the prosecution. Evidence rendered by Sushila (PW-9) and Saroj (PW-11), is enough to prove the offence. 8. I have given thoughtful consideration to the rival submissions and gone through all the material available on record. 9. As per prosecution Kanti, Saroj, Sushila and Prahlad Gurjar were eye witnesses. Kanti has not been examined for the reasons best known to the prosecution. Prahlad has been examined as PW-2 but he does not give account of the incident as eye witness. He has turned hostile. Pintu @ Sushila (PW-9) is mother of the deceased. She has stated in examination in Chief that in the morning at about 7 o' clock, the child was playing outside her house. He died of tractor who was coming from village. Kanti was also there. Accused ran away leaving tractor on the spot. The child had crawled down on the way while playing. Tractor was running fast and did not sound any horn. The witness has been declared hostile as she could not tell the name of the driver of the tractor. In cross-examination, She states that she reached the spot after one hour. Kanti had already reached there prior to her. When she reached the spot, the child was dead. Thus the evidence rendered by Sushila @ Pintu is also not sufficient. Her testimony as eye witness cannot be believed as she admits that she reached the spot after one hour of the incident. Saroj has been examined as (PW-11). She has deposed as eye witness but in cross-examination she also states that first of all Kanti had seen the occurrence. The witness was mopping the house and on hearing Kanti, she went out. She further admits that her house is about 100 foot steps away from the place of occurrence, which is 10 to 15 houses away from the deceased house and in between there are two curves. Though she denies that from her house the place of occurrence is not visible. The fact of two curves in between the house of this witness and the place of occurrence is further corroborated by Ex. P-2 site inspection memo. Therefore, It cannot be believed that the witness might have seen the occurrence with her own eyes from her house. 10. From all other witnesses examined by the prosecution, occurrence of death of child Dinesh Kumar by hit of a tractor is proved. P-2 site inspection memo. Therefore, It cannot be believed that the witness might have seen the occurrence with her own eyes from her house. 10. From all other witnesses examined by the prosecution, occurrence of death of child Dinesh Kumar by hit of a tractor is proved. However, in view of the evidence adduced, prosecution has failed to prove that at the time of incident, appellant was driving the tractor rashly and negligently. Learned trial court and first appellate court have not considered in right perspective, the statements given by Pintu @ Sushila (PW-9) and Saroj (PW-9). The appreciation of evidence rendered by these two witnesses cannot be said to be in accordance with law. As such, concurrent findings given by both the courts below cannot be affirmed by this court. 11. So far charge of driving the vehicle without having a valid driving license and uninsured vehicle is concerned, We do not find any reason for interference by this court on the concurrent finding of the trial and appellate courts. As per material available on record, the appellant remained in judicial custody for more than one month, during hearing of the appeal. Therefore, sentence of one month rigorous imprisonment for both of these charges is required to be set off against the period of custody already undergone by the appellant. 12. Thus the petition succeeds partly. Judgment dated 31.10.2000 rendered by the trial court and judgment dated 31.08.2005 rendered by the appellate court are set aside with regard to conviction and sentence passed for offences punishable under Section 279 & 304-A IPC. Appellant is acquitted of the charges of offences punishable under Section 279, & 304-A, IPC. The judgment of the trial court and the appellate court are confirmed with regard to offences punishable under Sections 3/181 & 146/196 M.V. Act. Sentence passed for these offences are directed to be set off against the period of custody undergone by the appellant during hearing of the matter till date. The petition is disposed of accordingly.