JUDGMENT : DEEPAK MAHESHWARI, J. 1. This revision petition has been preferred on behalf of the accused petitioner challenging the judgment dated 02.09.2016 passed by Learned Additional Sessions Judge, Rajsamand in Criminal Appeal No.35/2015 whereby he has upheld the judgment impugned dated 03.06.2013 passed by learned Judicial Magistrate, First Class, Devgarh, District Rajsamand and convicted the accused petitioner for the offence punishable under Sections 279 and 304-A I.P.C. as also under Section 134/187 of Motor Vehicle Act and sentenced him with simple imprisonment for a period of six months and imposed fine of Rs.500/- for the offence punishable under Section 279 I.P.C. The accused petitioner was also sentenced for the offence punishable under Section 304-A I.P.C. with simple imprisonment for two years and a fine of Rs.1000/-. The petitioner was also sentenced with simple imprisonment for one month and a fine of Rs.500/- for the offence punishable under Section 134/187 of Motor Vehicle Act. He was also directed to serve out additional sentence in default of payment of fine with 15 days, one month and 15 days respectively. 2. Briefly stating the relevant facts are that a FIR Ex.P/4 was lodged by Dilip Singh mentioning that at 4.40 pm on 18.5.2006, when his nephew Manoj Kumar, aged 11 years was crossing the road to go to his grand father's well from the house situated across the road, one speeding truck bearing registration No.HR- 46-B-3580 dashed him while coming from Bhim. The driver was driving the vehicle negligently and rashly. Tyre of the truck crushed Manoj Kumar beneath his waist. He died on the spot. Driver ran away with the truck. Dilip Singh informed Police Station Diwer telephonically about number of the truck. Besides the complainant, Sukhdev Singh, Jhala Ram, Ghanshyam Singh etc. were also eye witnesses of the accident. 3. After investigation, police submitted a charge-sheet against the petitioner for the offence punishable under Sections 279 and 304-A I.P.C. and Section 134/186 of Motor Vehicle Act. After conducting trial, learned trial Court convicted and sentenced the accused petitioner as mentioned above vide judgment dated 03.06.2013. 4. The appeal preferred by the petitioner was also dismissed by learned appellate Court and the conviction and sentence awarded to the petitioner was upheld vide order impugned dated 02.09.2016. 5. During arguments, learned counsel for the petitioner has submitted that learned Courts below have convicted the accused petitioner without any incriminating evidence against him. 4. The appeal preferred by the petitioner was also dismissed by learned appellate Court and the conviction and sentence awarded to the petitioner was upheld vide order impugned dated 02.09.2016. 5. During arguments, learned counsel for the petitioner has submitted that learned Courts below have convicted the accused petitioner without any incriminating evidence against him. No eye witness of the accident has been examined during trial except complainant PW/7 Dilip Singh. His statement to have seen the number of truck is also unreliable looking to his statements given during cross examination. As per other witnesses present on the scene, Dilip Singh has reached the place of occurrence after the truck had run away. The petitioner has been implicated in the case simply on the basis of the reply given by PW/12 Pradeep Kumar on the notice under Section 133 of Motor Vehicle Act. But PW/12 Pradeep Kumar has stated during his cross examination that he did not know who was driving the vehicle at the time of accident. Learned counsel has further contended that no rashness and negligence has been proved. As per the site plan Ex.P/3, it is evidently clear that the truck was being driven on the left side of the road and the accident took place because the deceased tried to cross the road without taking any caution to check whether any vehicle is coming on the road or not. The witnesses had also admitted that the accident would have not taken place had the deceased Manoj seen on the either side of the road to check whether any vehicle is coming or not. Thus, learned counsel for the petitioner has submitted that learned trial Courts have passed the judgment in clear ignorance of facts, which have been revealed by the witnesses. The evidence has not been properly appreciated. Hence, the judgments sufer legal infirmity and the revision is liable to be allowed while setting aside the judgments impugned. 6. Per contra, learned Public Prosecutor has supported the reasoning given by learned Courts below. He has submitted that the driver ran away from the scene of occurrence, so all the witnesses could not see the registration number of the truck but the truck was detained just after the accident by Diwer police. 6. Per contra, learned Public Prosecutor has supported the reasoning given by learned Courts below. He has submitted that the driver ran away from the scene of occurrence, so all the witnesses could not see the registration number of the truck but the truck was detained just after the accident by Diwer police. The reply given by the registered owner of the vehicle confirms the fact that the accused petitioner was driving the vehicle at the time of accident. It was his duty to avoid accident if some pedestrian was trying to cross the road. Learned Public Prosecutor has submitted that the site plan clearly shows that the accident had taken place only because of the negligence and rashness of the driver. He has further submitted that both the Courts below have given the concurrent finding and there is no reason to set aside that finding. Hence, the revision is liable to be dismissed. 7. I have given my thoughtful consideration to the rival contentions raised by both the sides and have also perused the evidence, ocular as well as documentary, available on record. 8. It is true that both the Courts below have arrived at a concurrent finding about the guilt of the accused petitioner but in view of the contentions raised by learned counsel for the petitioner, it is bounden duty of this court to analyse whether the evidence available on record has been properly and correctly appreciated or not and also to check whether the finding is perverse in the light of such evidence ? 9. On close scrutiny of the judgment passed by learned appellate Court, it comes out that on the basis of the evidence of prosecution witnesses and reply to the notice Ex.P/5 given under Section 133 of Motor Vehicle Act, learned Court has come to the conclusion that accused petitioner Ramveer Singh was driving the vehicle at the time of accident. As per FIR Ex.P/4 besides complainant Dilip Singh, Sukhdev Singh, Jhala Ram and Ghanshyam Singh were eye witnesses of accident. But Jhala Ram and Ghanshyam Singh have not been examined by the prosecution. As per PW-9 Sukhdev Singh, only he and Jhala Ram was standing near the place of accident, which was about 100 ft. away from them. As per FIR Ex.P/4 besides complainant Dilip Singh, Sukhdev Singh, Jhala Ram and Ghanshyam Singh were eye witnesses of accident. But Jhala Ram and Ghanshyam Singh have not been examined by the prosecution. As per PW-9 Sukhdev Singh, only he and Jhala Ram was standing near the place of accident, which was about 100 ft. away from them. Though he has stated that a speeding truck came from the side of Bhim and dashed Manoj Kumar, who died but he has also stated that he could not see the registration number of the truck. Neither name of the driver was known to him. He has also stated in his cross examination that complainant Dilip Singh was further 100 ft. away from them. He has specifically stated that the truck had run away after the accident, when Dilip Singh arrived on the spot. He has also stated that Dilip Singh came out of his house on being called by them. Looking to this statement, it cannot be relied that Dilip Singh could have seen the registration number of the truck. PW-7 Dilip Singh has also admitted during his cross examination that at the time of accident, he was on the roof top of his house and also stated that his house was at a distance of 10 ft. from the spot of accident. He has also stated that he saw the number of the truck from behind while standing at roof top of his house. But his statement appears unreliable in light of the statement given by PW/9 Sukhdev Singh as he could reach the spot of accident only after the truck had run away. 10. Investigating Officer PW/16 Bhanwar Singh has stated that on the telephonic information about the accident, he trapped truck No.HR-46-B-3580 in front of police station Diver. It is worth noting that no 'rojnaamcha' has been produced in the prosecution evidence wherein the telephonic information about the number of the truck was recorded. He has also admitted in his cross examination that complainant had not mentioned the truck number in report Ex.P/1. On close scrutiny of statements of other prosecution witnesses, it clearly comes out that none of them have stated that they could see the registration number of the truck, which had run over deceased Manoj Kumar. Thus, the clinching evidence in regard to the information about the registration number of the truck is completely missing. On close scrutiny of statements of other prosecution witnesses, it clearly comes out that none of them have stated that they could see the registration number of the truck, which had run over deceased Manoj Kumar. Thus, the clinching evidence in regard to the information about the registration number of the truck is completely missing. 11. Other aspect which had been taken into consideration by the Courts below to arrive at the conclusion that the accused petitioner was driving the truck is in respect of the notice Ex.P/5. This has been heavily relied upon by learned lower appellate Court. But on scrutiny of statement of PW-12 Pradeep Kumar, who is alleged to be the registered owner of the truck, it comes out that during his cross examination, he has admitted that the reply 'A' to 'B' written on Ex.P/5 is not his hand written. He has also stated that he had sold the truck to one Virendra in the year 2004 and thereafter, only Virendra was looking after the vehicle. PW/12 has also categorically stated that he did not know as to who was driving the vehicle at the time of accident. Taking these facts into account, the conclusion arrived at by learned lower appellate Court on the basis of Ex.P/5 cannot be treated to be convincing and reliable. In view of both the above counts on which conclusion has been drawn by the learned lower Court that accused petitioner Ramveer Singh was driving the vehicle at the time of accident is not found to be correct in the light of ocular as well as documentary evidence. Hence, so far as offence under Section 134/187 of Motor Vehicle Act is concerned, liability therefore, cannot be fasten upon the accused petitioner as this fact has not been proved that he was the person who caused the accident. 12. So far as the factum of negligence and rashness of the truck driver is concerned, most relevant evidence is the site plan Ex.P/3 prepared during the investigation. The only 'motbir' witness of Ex.P/3, who has been examined, is PW-5 Fateh Singh. He has admitted in his cross-examination that there was neither any vehicle nor the dead body on the spot when site plan was prepared. The only 'motbir' witness of Ex.P/3, who has been examined, is PW-5 Fateh Singh. He has admitted in his cross-examination that there was neither any vehicle nor the dead body on the spot when site plan was prepared. Even this fact has also been admitted by Investigating Officer PW/16 that dead body and the truck had been removed when site plan was prepared by him on the next day. It thus appears that only formality of preparing the site plan was observed but the relevant facts which were required to be observed were not available on the scene when site plan Ex.P/3 was prepared. 13. Even then, if Ex.P/3 is taken into consideration, it is clear on its perusal that the point of accident, which is marked as 'A' in Ex.P/3 is the place situated on the left side from the median line of road - 4 ft. inside. So, at the time of accident, the truck was being driven on its proper side and it had not caused the accident while going to the wrong side. Further, it has also been mentioned in Ex.P/3 that there is blackening signs in the length of 12 ft on the road, which were caused by applying the brakes. This fact shows that the driver tried to avoid the accident by applying the brakes on seeing somebody trying to cross the road. It is also important to note that as per complainant PW-7, speed of the truck was 50-60 kilometer at the time of accident. This speed while driving on highway cannot be taken to be excessive proving the recklessness of the driver. These facts have been completely lost sight by learned lower appellate Court. On the contrary, it has been inferred that the truck driver had caused the accident while going to the wrong side without reducing the speed and blowing horn. But no such evidence is available on record to substantiate this inference. 14. Though it has been admitted by almost all the witnesses during cross examination that the deceased was negligent while crossing the road in not taking care to check whether any vehicle is approaching or not. But this aspect had not been taken into consideration by the Courts below. It cannot be said that it was sole duty of the pedestrian to check about the vehicle while crossing road. But this aspect had not been taken into consideration by the Courts below. It cannot be said that it was sole duty of the pedestrian to check about the vehicle while crossing road. However, this Court is of the view that since the truck driver took all the precautions and tried to avoid the accident even then, if the accident had taken place, criminal liability cannot be fasten upon the truck driver in view of the negligence of the deceased. 15. Resultantly, there is no hesitation in concluding that learned Courts below have arrived at the conclusion of holding the accused petitioner liable for the accident without properly appreciating the evidence available on record and thus, their conclusion is found to be perverse and cannot be sustained. In view of above, the revision petition deserves to be allowed and is accordingly allowed. The judgments dated 02.09.2016 and 03.06.2013 passed by Courts below regarding conviction and sentence of the accused petitioner for the offence punishable under Sections 279 and 304 (A) I.P.C and Section 134/187 of Motor Vehicle Act are quashed and set aside. The petitioner may be released forthwith, if not required in any other case. 16. A copy of this order be sent to the trial Court for information and necessary action.