JUDGMENT : G.R. Moolchandani, J. Instant revision is directed against the judgment dated 09.09.2002 passed by the Additional Sessions Judge (Fast Track), Pali in Criminal Appeal No. 33/2002 upholding the judgment dated 09.08.1997 passed by the Judicial Magistrate, No. 2, Pali convicting the revisionist-accused under Sections 279, 337, 338 and 304A IPC. 2. The brief facts of the case are that PW-3 Mohd. Iqbal lodged a F.I.R. Ex.R 5 with Police Station, Guda Endla, Pali on 25.03.1988, which reads as under: ^^eSa vkt viuh thi vkj0,l0Vh0 4557 dks ysdj Qkyuk ls jokuk gksdj djhc lqcg 9 cts fM+xkbZ cl LVS.M+ ij viuh lkbZM+ NksM+dj thi esa ikuh Mkyus ds fy, [kM+h dj ikl dh I;km esa ikuh ysus x;k ihNs ls ;kuh og ikuh ysdj vk jgk Fkk rks lqesjiqj dh rjQ ls rst jQrkj ls cl uEcj vkj0vkj0ch0 4898 us vkdj o ykijokgh ls pykdj mldh mDr [kM+h thi ds ihNs ls VDdj ekj nh] ftlls thi djhc 2&4 QhV vkxs f[kld dj ,d ccwy ds isM+ ls Vdjk dj :d xbZ exj cl dh VDdj ls mldh thi dh Hkkjh {kfr gqbZA mldh thi ds VDdj ekjus ds ckn lkeus ls vkrs gq, Vªd uEcj vkj0ts0bZ0 3236 ds VDdj ekjh ftlls Vªd ds lkeus dk fgLlk VwV x;k vkSj mlesa cSBk Mªkboj ds dkQh flj esa pksV yxus ls csgks'k gks x;k o Qalk gqvk FkkA cl esa cSBs iSlsUtjksa ds Hkh dkQh tuksa ds pksVsa vkbZ vkSj muesa ls ,d&,d ds T;knk yxus ls ekSds ij gh [kRe gks x;kA cl MªkbZoj eksguflag ds ekewyh pksVsa vkbZA cl MªkbZoj cl dks cM+h rst jQrkj ls ykijokgh ls yM+[kM+krk gqvk vkdj ihNs ls Vdjk;k] mlus xkM+h dks jksdus dh dksf'k'k ugha dhA mldh thi esa mlds ?kj ds eSEcj cSBs Fks ftlesa ls mlds firkth ds ck;sa gkFk o ghpdh ds pksVsa yxhA ekSds ij mlds vykok esgewn [kkth o vuoj [kka Hkh Fks dk;Zokgh djkosaA** and the FIR is lodged on 25.03.1988 at 10.15 a.m. at P.S. Guda Endla. 3. 3. Heard both the sides, learned counsel for the petitioner has contended that there is two sets of evidence and one set of evidence, which is adduced by the passengers of bus, whose driver is allegedly made accused, favours the revisionist and testimony of driver of jeep is not reliable because it has come in the evidence that after stopping the jeep, he went to fetch water and was away from the jeep and in that condition he may not be injured or no injury could be caused to him but contrary to this, he has again said that he tab was injured in the incident, which is not reliable being contradictory. All the passengers of bus have said that the bus was not being plied at high speed and they have not said anything against the driver of the bus nor have given any positive evidence of his being reckless. Relying upon the verdicts rendered in Bhagwana v. The State of Rajasthan, [1979 Cr.L.R. (Raj.) 422], Prem Singh v. The State of Rajasthan, [1979 Cr.L.R. (Raj.-Suppl.) 9] and Surgyani v. State of Rajasthan, [1992 Cr.L.R. (Raj.) 312], learned counsel for the revisionist has further contended that the prosecution has failed to produce reliable and positive evidence against the revisionist, despite both the courts below failed to appreciate this aspect and have wrongly passed impugned judgments, which are not correct and are liable to be quashed and has submitted that since both the courts below have committed material illegality and impropriety in passing the impugned judgments, so, the revision be allowed and the impugned judgments be quashed and the revisionist be acquitted from the charges. On the contrary, learned Public Prosecutor has contended that the passengers of jeep, who sustained injuries, have made categorical statements that the driver of the bus was negligent, he was plying the vehicle at high speed and recklessly drove the bus and dashed the jeep from the rear side Had he been prudent and cautious, no such accident could have been occurred and there is no error in the findings of both the courts below, hence, the revision be dismissed. 4. Examined the evidence and the judgments impugned and gone through the record. Perusal of the evidence depicts that PW-3 Mohd. 4. Examined the evidence and the judgments impugned and gone through the record. Perusal of the evidence depicts that PW-3 Mohd. Iqbal is an important witness, who is complainant as well as witness and injured but several contradictory narrations have been made by this witness in his cross-examination. Admittedly, he is an injured person but he has himself said that at the time of the accident, he had gone to nearby water hut to fetch water and has specifically said that ^^VDdj yxh ml le; eSa I;km ij Fkk** and it was 25-30 ft. away from the jeep. Perusal of spot map does not show any such water-hut (piyau) in the nearby area of the accident. 5. Ex.R 4 spot map is also an important document, which indicates that the questioned jeep was standing at place marked as 'A' which is shown to be a part of 'main concrete which goes to show that the jeep was not stationed or parked, off the road but actually it was not away from the Main road. Though after the impinged dash, it is stated and has been shown to be few feet rolled away, towards a tree and as per evidence of Mohd. Iqbal, the jeep rolled ahead-45 feet from the place, it was stationed. 6. This witness has also said that his jeep was stationed and has accepted that the spot map is correct, this witness has also said that his jeep was stationed and half of its portion was on damar road, which reveals that vehicle was stationed not off the main road but was on main road, which is manifestly a transgression of traffic rules because the drivers are not expected to abandon their vehicle or station them in such a way, which occupies mains ingle way. It is always expected from a vehicle owner to park and station the vehicle, off the road, on kachcha side after alighting its parking or hazard lights and after putting some indicator or a reflector to ensure that coming vehicle and road user does not go mistaken and astrayed in order to shun from any contributory or sole liability besides obeying the traffic norms. 7. Mohd. Iqbal has also said that he was engaged in occupation of loading passengers through jeep. 7. Mohd. Iqbal has also said that he was engaged in occupation of loading passengers through jeep. Degree of care on a public career become more onerous by non-stationing their vehicle in an abrupt or sudden way and always stay them on, off the road. Public careers often causes hazard, on sudden passenger call, by halting their vehicles amid of the road and in this case it has also been admitted by the jeep owner-complainant that he was engaged in loading public/passengers in his vehicle and the place was also Digai Bus Stand. Testimony of witness Mohd. Iqbal ils also not trustworthy. On the one hand he says that he sustained injuries and has said that. ^^esjs fgpdh vkSj 'kjhj ij pksVsa yxh Fkh** whereas he himself has said that, ^^VDdj yxh ml le; eSa I;km ij FkkA** 8. So far as the evidentiary value of other passengers/occupiers of the jeep is concerned, the case of the prosecution is that the jeep was hit from behind and only five passengers are stated to be sitting in the jeep. In normal course, the sitting positions of the jeep is projected in such a way that the faces of the passengers are always stay towards the front side and not towards rear side, in case if the seats are not cross-projected in the back side apart from normal front seats and only five passengers are stated to be in the jeep at the time of accident. 9. Perusal and examination of one set of testimony relating to bus passengers shows that all the occupants of the bus have specifically said that the bus driver was driving the vehicle at comfortable speed and it was not plied at a high speed. None of the bus passengers has stated that their bus driver was reckless or remained ever negligent or drove it recklessly because PW-5 Nirlesh Kumar, a rider of bus, who also suffered injury, has said that he cannot say that who was at fault for the accident and this witness has become hostile and has denied several recitals of police statements, he has also said that he had witnessed the bus driver, while he was driving the vehicle but no utterance pertaining to negligence has been narrated by this witness. 10. 10. Likewise, PW-6 Lala, another injured bus passenger, the bus whose driver is alleged to be the accused person, has said that at what speed the vehicle was running, is not known to him, he too has said that he is not in a position to say that who was negligent or responsible for the accident, this witness has also become hostile and has denied narrations of police statements, as such no positive evidence is there pertaining to negligence. 11. PW-7 Jai Singh, another injured bus passenger, who too sustained injuries in the accident, has said that he sustained injury and 15-20 other passengers also got injured. This witness has also said that ^^bl ,DlhMsUV esa fdldh xyrh Fkh eq>s irk ugh** and has again negated the negligence of the bus driver by saying that, ^^cl 40&45 dh LihM+ ls lgh py jgh Fkh** This witness has become hostile and has said that he sustained injuries below his right eye and on chest and had taken treatment in Pali hospital. He has further said that the roadways driver also got his leg fractured, after denying several parts of his police statement he has said that, ^^;g xyr gS fd cl M~kbZoj eksgu flag us rst xfr rFkk ykijokgh ls cl nq?kZVuk dkfjr dh gksA** 12. Another set of evidence belongs to jeep passengers and PW-8 Anwar Khan, who was a passenger of bus, has said that ^^eSa ySQ~V lkbM ds ihNs ls nks lhV NksM+dj cSBk FkkA eSa thi ls gh mrj x;k Fkk vkSj mrj dj is'kkc djus pyk x;kA** He too has said that ^^thi jksM+ ij ,d&M+s<+ QhV ij FkhA** He has also said that ^^cfYd ,DlhM+sUV ds ckn cl ns[kh FkhA** 13. PW-9 Ashfaq Khan has said that bl fMxkbZ cl LVS.M igqaps ogka ij MªkbZoj us thi [kM+h dh] uhps mrjk] ikuh Hkjus x;k he has also said that ihNs ls Qkyuk fM+iks dh cl rst jQ~rkj djhc 60&70 dh xfr ls pyrh gqbZ vkbZ vkSj thi dks ihNs ls MªkbZoj lkbZM+ esa VDdj ekjhA thi vkxs ljd xbZ cl dks dkVk o lkeus ls vk jgh Vªd ls VDdj gks xbZA this witness has also said that thi esa cSBh lkokfj;ka Qkyuk ls cSBh Fkh and he has also said that he was sitting in frond side of the jeep. 14. 14. Obviously, a passenger sitting on front side seats of the jeep may not be in a position to watch the position of a rear coming bus, so the evidentiary value of this witness becomes dubious and unreliable because all the bus passengers, whose bus driver is alleged to be negligent, have specifically denied it, even though they are injured but all have said that the bus driver was plying the vehicle with 40-50 of speed and nobody has said that he was negligent. Even one of the witness PW-7 Jai Singh, discussed earlier, has specifically said that the bus driver Mohan Singh was not negligent. 15. PW-10 Ram Narayan, another jeep rider, has said that the jeep was standing at Digai Bus Staqd and he has also said that, ^^eSa thi esa gh cSBk FkkA thi ds uEcj ;kn ugha gSA eSa thi esa tSriqjk ls cSBk FkkA ;g cl gekjs ihNs ls vk jgh FkhA ;g lgh gS fd tSriqjk ls ,DlhMsUV LFky rd thi ds ihNs&ihNs vk jgh FkhA thi esa tSriqjk ls gekjs lkFk 3&4 vkneh vkSj cSBs FksA tSriqjk ls fM+xkbZ ds chp esa cl dgha ij ugha :dhA** the kind of narrations, which has been made by this witness, goes to show that the said bus was coming behind the jeep from Jetpura. Had it been plied rapidly, then it would have already overtaken the jeep and position of the jeep is stated to be running ahead of the bus, so, the chances of abrupt stopping and stationing of the jeep are more probable since it has also come in the evidence that the bus driver made a cut, and collided with the front coming truck. The aforesaid position, as stated by the witnesses, gives a positive inference that the jeep driver stationed and braked the jeep at Digai Bus Stand without indicator and signal and occupied portion of the concrete road. 16. Evidence of PW-12 Poonam Bharti, a jeep passenger is also not reliable because she has said that ^^thi lM+d ds uhps [kM+h FkhA** whereas driver of the jeep and some of the passengers have said that almost half of its part was on main road, which is also proved by the status of spot map Ex.P.4. 17. 16. Evidence of PW-12 Poonam Bharti, a jeep passenger is also not reliable because she has said that ^^thi lM+d ds uhps [kM+h FkhA** whereas driver of the jeep and some of the passengers have said that almost half of its part was on main road, which is also proved by the status of spot map Ex.P.4. 17. Appraisal and evaluation of entire afore-discussed evidence goes to show that the set of evidence, which has been given by the bus passengers, whose driver is alleged to be reckless and liable for the accident, have not corroborated the story of the prosecution either they have expressed their ignorance about rashness or negligence and have contradicted their police statements, even though they are injured, but bracing hostile character, they have narrated that their bus driver was not negligent and nobody has uttered anything of this nature, which may be termed to be a positive evidence or incriminatory evidence of alleged recklessness on the part of the bus driver Mohan Singh. 18. In Prem Singh v. State of Rajasthan (ibid), this Court has earlier held that the set of witness, which supports the accused, should be preferred and guilt is not brought home to the accused beyond a reasonable doubt. In another case of Bhagwana v. State of Rajasthan (ibid), it has been held that: "Penal Code - Section 304-A - Rash & negligent driving - Deceased crossing road suddenly - Driver tried to save her by turning truck - Held, driver cannot be said to be driving negligently - Benefit of doubt goes to accused." In the case of Surgyani v. State of Rajasthan, this Court has earlier held that 40-50 kms. of speed is not excessive on clean roads. 19. Thus, entire evidence does not connect the accused with the crime in a reliable and trustworthy way, there is no positive evidence to show that the bus driver was reckless. All the injure bus passengers have specifically testified that the bus was being plied at a speed of 40-50 kms. and one of them has also said that their bus driver was not negligent and rest of the injured bus passengers have said that they are not in a position to say as to who was negligent. All the injure bus passengers have specifically testified that the bus was being plied at a speed of 40-50 kms. and one of them has also said that their bus driver was not negligent and rest of the injured bus passengers have said that they are not in a position to say as to who was negligent. The spot map also shows that the jeep was stationed at mark 'A', which is admittedly a part of main concrete road, on which the jeep was standing and stationed. PW-3 Anwar Khan has said that right corner of the jeep was dashed by left corner of the bus, which also goes to show that an attempt was made by the bus driver to avoid the accident. 20. Totality of the evidence does not fasten any criminal culpability upon the bus driver and testimony of the passengers of the bus fortifies this aspect as well because one of them has said that their bus driver was not negligent and others have become hostile and have expressed their ignorance on the factum of negligence and in such a set of evidence, benefit of doubt is legitimately be extended to the accused and both the courts below have committed material illegality and irregularity in not appreciating afore-discussed aspect of the case. 21. Therefore, the revision petition is allowed and judgments of both the courts below is quashed and set aside. The revisionist-accused is acquitted of the charges levelled against him by dint and benefit of doubt, he is on bail, so is not required to surrender, his bail bonds are discharged. 22. Keeping in view, however, the provisions of section 437A Cr.P.C., 1973 the accused revisionist is directed to forthwith furnish a personal bond in the sum of Rs. 25,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the revisionist, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court. 23. The record of the courts below be sent back immediately with a copy of the order.