JUDGMENT : G.R. Moolchandani, J. 1. The instant revision has been filed against the judgment passed: Additional Sessions Judge, Ratangarh in Criminal Appeal No. A (721 176/92 passed on 3.8.1998 confirming the judgment passed by Judicial Magistrate, Ratangarh in Criminal Case No. 86/87 dated 21.8.1990 convicting the petitioner Shivratan under Sections 279 and 304A I.P.C. sentencing to undergo 4 months’ R.I. and a fine of Rs. 5,000/- under Section 279 am months R.I. with a fine of Rs. 1,000/-. 2. In nutshell the content of FIR Exhibit are as under:- ^^fiNyh jkf= dks rkjh[k 01-04-1987 dks djhc ukS cts dh ckr gS eSa ekrkth ds efUnj dh rjQ ds jkLrs ls esjs ?kj tk jgk FkkA tc eSa Nxu yky O;kl ds ?kj ds ikl igqapk rks ihNs ls dkj ua0 th-Vh-,u- 7365 ftls f'ko xksnh iq= yw.kdj.k eksnh fuoklh Jh Mawxjx<+ pyk jgk FkkA brus esa nqxkZnRr iq= c`tyky tkfr vks>k lkfdu Jh Mwaxjx<+ mez djhc 09&10 lky nkfguh rjQ ls ,dne fudy dj xkM+h ds vkxs vk x;k ftls dkj ds cEij dh mlds yxh pksV yxrs gh cPpk fxj x;kA M~kbZoj us xkM+h jksd nhA xkM+h esa HkS:nku eksnh rFkk cPps o vkSjrsa cSBh Fkh mlh le; Jh fd'ku O;kl Hkh vk x;k FkkA ge cPps dks mBkdj mlh oDr gkWfLiVy Jh Mwaxjx<+ ys x;s ;gkWa MkW0 dh jk; ds vuqlkj bykt ds fy, chdkusj ys x;s vkSj HkrhZ djk;kA tgkWa ls vc fjiksVZ nsus vk;k gwa dk;ZokbZ djsaA** 3. The contents of this FIR do not indicate recklessness of the driver of the vehicle involved and this FIR discloses that child Durgadutt abruptly came from right side in front of the vehicle involved and this FIR was lodged by Shiv Swami a shop keeper under Sections 279 and 337 I.RC. Subsequently, after demise of injured and after investigation, charge sheet was filed under Sections 279 and 304-A. The learned trial court while passing the judgment convicted accused-revisionist as referred above. Subsequently, the first appellate court upholding the judgment dismissed the appeal after passing the order under challenge. Learned counsel for the revisionist has submitted that both the Courts below have committed error in passing the impugned order. There is no evidence of negligence for recklessness on the part of the revisionist accused. Subsequently, the first appellate court upholding the judgment dismissed the appeal after passing the order under challenge. Learned counsel for the revisionist has submitted that both the Courts below have committed error in passing the impugned order. There is no evidence of negligence for recklessness on the part of the revisionist accused. Referring to the evidence of eye witnesses, learned counsel has pointed out that all the witnesses have categorically narrated that the victim boy abruptly came and got dashed with the vehicle. The car was being driven at a slow speed without any recklessness, and there is no iota of evidence which could be the basis of conviction. To support his submissions, learned counsel placed reliance upon the following judgments:- (1) State of Rajasthan v. Shambhu Singh, 2000 (2) RCD 815 (2) K. Nagaraju v. State of A.P. 2011 ACJ 181 (3) Lohdya v. State, 1989 Cr.L.R. (Raj.) 375 (4) State of Rajasthan v. Nathu Lal, 2009 (2) R.Cr.D. 543 (Raj.) (5) Hanuman Singh v. State of Rajasthan, 1981 RCC 403 4. Learned counsel has further submitted that the Trial Court as well as the First Appellate Court has committed gross illegality in passing the impugned order, there is a manifest mistake in passing the impugned order. Relying upon the spot sketch, learned counsel has submitted that the incidental area was a small lane, and the road was bit ascending, so question of plying the vehicle at high speed or negligently does also not arise. Moreover, the evidence produced by the prosecution does also not disclose any kind of negligency or recklessness on the part of the revisionist, despite the Trial Court has passed erroneous order, which has wrongly been confirmed by the First Appellate Court. The orders being unsustainable be reversed and the revisionist be acquitted. Learned public prosecutor has contended that the Trial Court has properly evaluated the site plan and the mechanical report of the questioned vehicle reflects that the break systems of the vehicle was not perfect and the break was operating by dual operation, itself is a defect which was not taken care of by the revisionist, so this factum is enough to indicate that he was reckless and it is also not the case of revisionist that accused revisionist tried his level best to save the victim child. Learned Trial Court has passed the judgment after elucidating entire evidence and the First Appellate Court has rightly upheld the same so there is no reason to interfere with and the revision lacks merit so it be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. Examination and evaluation of the testimony adduced before the trial court is enough to conclude that the learned trial court has committed material illegality, perversity by not appreciating the ocular evidence and drawing conclusions on notional assumptions. The first information report does have a narration that the driver stopped the vehicle there and the injured child was taken to hospital by the same driver in the car involved. None of the witness has ever said even an iota of adversity against the driver of the car involved and nobody has uttered that the driver of the car was negligent or reckless or have driven the vehicle un-carefully or at excess speed. It is worthy to reproduce the narration of the witness PW-1 Shiv Swami, author of the FIR Exhibit 1 as he has said:- ^^brus esa nk;ha rjQ ls ,d cPpk jkLrs ij vk;k vkSj dkj dh cPps ds VDdj yxhA dkjokys us dkj jksdh dkj dks gkftj vnkyr vfHk;qDr f'kojru pyk jgk FkkA cPps dks mlh dkj esa gkWfLiVy x;sA ekSds ij Jhfd'ku] dUgS;kyky vk x;s FksA gkWfLiVy ls cPps dks MkWDVj dh jk; ls chdkusj ys x;sA nwljs fnu eSaus Fkkus esa bZ-,Dl-ih-&1 is'k fd;k ftl ij , ls ch esjs gLrk{kj gSaA** He is also said that: ^^xkM+h ,DlhMsaV ds le; lgh rjhds ls py jgh Fkh ,oa mldh xfr Hkh /kheh FkhA vanktu D;k xfr Fkh eSa ugha crk ldrkA bl ,DlhMsaV esa eqyfte dh dksbZ xyrh ugha FkhA** 7. PW-2 Shri kishan has also said that:- ^^djhc 2 1@2 lky igys jkr ds 9 cts dh ckr gSA esjh nqdku ds vkxs xyh esa f'koLokeh tk jgk FkkA ihNs ls ,d dkj ftls f'kojru eksnh pyk jgk Fkk] vkbZ rks vkxs xyh esa ls ,d cPpk vpkud nkbZ vksj ls jkLrs esa vk x;k vkSj mlds dkj dh VDdj yxhA ekSds ij dUgS;kyky Hkh vk x;kA dkj :dh fQj cPps dks dkj esa cSBkdj vLirky ys x;sA** Under cross-examination, this witness has also said that:- ^^xkM+h fcYdqy /khjs o lgh py jgh FkhA o vkxs ogkWa mWpkbZ FkhA bl ,DlhMsaV esa MªkbZoj dh dksbZ xyrh ugha FkhA xkM+h MªkbZoj fcYdqy lgh pyk jgk FkkA** 8. PW-3 kanheya lal has said that:- ^^,d dkj nf{k.k dh vksj ls vkbZ ftls gkftj vnkyr eqyfte f'kojru eksnh pyk jgk FkkA ,d dkj tc pkSjkgk ikj dj efUnj dh vksj p<+ jgh Fkh rks nkfguh vksj ls ,d cPpk xyh esa vk;k vkSj dkj dh cPps ds VDdj yxhA ekSds ij f'koLokeh] Jh fd'ku Hkh vk x;s vkSj cPps dks dkj esa ysVk dj vLirky ys x;sA dkj /khjs&/khjs py jgh FkhA ykijokgh ls ugha py jgh FkhA** 9. PW-4 Bheru Dan has also not said anything against the driver of the vehicle involved and in his cross-examination, this witness has said that "the accident was caused because of the mistake of the child and the driver was not at fault." He has also said that the vehicle was moving slow and was not driven carelessly or recklessly. PW-5 is I.O. who has investigated the matter. PW-6 is a witness conducting mechanical examination of the vehicle. This witness has only narrated that the vehicle was having a leather brake which works on twice application. Exhibit 9, the mechanical report which has been made the basis of the conviction, besides site plan, does also not indicate anything serious and Point No. 1 of this report recites that ^^xkM+h pSd dh rks czsd iSMy nks nQk ekjus ls yxrk gSA** 10. Exhibit 9, the mechanical report which has been made the basis of the conviction, besides site plan, does also not indicate anything serious and Point No. 1 of this report recites that ^^xkM+h pSd dh rks czsd iSMy nks nQk ekjus ls yxrk gSA** 10. This document does not support the prosecution case, which has wrongly been read and has thus become the basis of conviction, since the case of the prosecution is not such that the driver of the vehicle did not stop the vehicle, but the "ocular" evidence of several witnesses has specifically disclosed that vehicle was slow and it stopped immediately, even the driver of the involved vehicle took the child with his family members to nearest hospital. 11. Several eye witnesses have confirmed by their "ocular" evidence that unlucky child came abruptly and dashed with the vehicle. The driver of the vehicle was not reckless at all. Even one of the witness PW-4 Bheru Dan has said that the child was at fault and the driver was not at fault. In view of the aforesaid and peculiar facts and evidence available on record, the law precedents relied upon by the revisionist and cumulative appreciation of evidence discussed above, candidly establishes that the revisionist was not negligent and was not responsible for the alleged accident. It is miserable and painful that a human life has lost in the accident and the parents have lost their lovely child, but so far as the findings of the courts below are concerned, the same appears to be unsustainable for the reasons and analysis dwelt above. In view of the above, this court is of the view that the conviction and sentence passed by the impugned order is liable to be set aside and the accused Shivratan is liable to be acquitted. Resultantly, the revision is allowed and conviction and sentence passed against the revisionist-accused Shivratan under Section 279 and 304A IPC is set aside and the revisionist is acquitted of the charges aforesaid. He is already on bail so he does not require to surrender. The revision stands allowed as above.