ORDER : Heard Mr. Anurag Kashyap, the learned counsel appearing on behalf of the petitioner. 2. Heard Mr. Mahesh Tewari, the learned counsel appearing on behalf of the Opposite Party-Railways. 3. Heard Mr. Sanjay Kr. Srivastava, the learned A.P.P. appearing on behalf of the State. 4. The present criminal revision petition is directed against the judgment dated 21.03.2014 passed in Criminal Appeal No.7 of 2013 by the learned Additional Sessions Judge-I, Sahibganj whereby conviction and sentence of the petitioner by the learned trial court for the offence under Section 160(2) of the Railway Act has been upheld. 5. The petitioner has also challenged the judgment of conviction and the order of sentence dated 21.12.2012 passed by learned Railway Judicial Magistrate, 1st Class, Sahibganj in Checking Case No.46 of 2005, Trial No.67 of 2012 whereby the petitioner was found guilty for the offence under Section 160(2) of Railway Act and was sentenced to undergo simple imprisonment for a period of two years and the imprisonment undergone in course of inquiry and trial was directed to be set off from the sentence pronounced. Arguments on behalf of the Petitioner 6. Learned counsel appearing on behalf of the petitioner submitted that admittedly, the petitioner is not the owner of the vehicle involved in the present case as pursuant to order dated 29.06.2005 passed by the learned trial court, the Truck No. BHQ-2561 was released on 01.07.2005 to its true owner namely, Ayodhya Pd. Yadav. 7. Learned counsel appearing on behalf of the petitioner further submitted that there is no evidence that the petitioner was the driver of the truck, which is alleged to have caused the accident. He further submitted that there is no cogent evidence to show that the truck involved in the present case had caused the accident. He submitted that admittedly, as per the prosecution case, the driver along with the truck had fled away from the place of occurrence and the truck was subsequently recovered from a different place altogether. He also submitted that so far as the informant of the case is concerned, he had received information from the cabin man and the cabin man is said to have received information from one shopkeeper and that shopkeeper was also examined before the learned trial court, but he turned hostile. He submitted that these aspects of the matter have not been properly considered by the learned courts below. 8. He submitted that these aspects of the matter have not been properly considered by the learned courts below. 8. The learned counsel for the petitioner submitted that the conviction of the petitioner alleging that he was driving the vehicle is based on no evidence and accordingly, the impugned judgments call for interference in revisional jurisdiction. Arguments on behalf of the State & Railways 9. Learned counsel appearing on behalf of the Opposite Parties, Railways as well as the State, advanced their arguments during which, it transpired that the statement of one of the witnesses recorded by the police was marked as Exhibit-6 without any objection from the side of the defence which also contained the signature of the petitioner and on basis of the same, learned trial court has come to a conclusion that offending vehicle was the same vehicle in connection with which the present proceedings was commenced. 10. During the course of arguments, repeated queries were made to the learned counsel appearing on behalf of the State as well as on behalf of the Railways to indicate even one piece of evidence, oral or documentary, in connection with the allegation that it was the petitioner who was driving the vehicle, but the learned counsel for the opposite parties failed to draw the attention of this Court on any such piece of evidence either from the lower court records or even from the impugned judgments showing that the petitioner was driving the vehicle. Findings of this Court 11. After hearing the learned counsel for the parties and going through the impugned judgments and the lower court records of the case, this Court finds that the prosecution case was initiated on the basis of a complaint memo dated 20.05.2005 submitted by A.S.M., Sahibganj to the Inspector In-charge, RPF Post, Sahibganj with regard to breaking of the south side boom of Level Crossing Gate No. 56B near East Outer Cabin, Sahibganj at KM No. 230/5-230/6 by Truck No. BHQ-2561. On the basis of the complaint, a case was registered as RPF / Post/ Sahibganj Case No.37 of 2005 dated 20.05.2005 under Section 160 of the Railway Act. On the basis of the complaint, a case was registered as RPF / Post/ Sahibganj Case No.37 of 2005 dated 20.05.2005 under Section 160 of the Railway Act. Thereafter, the Complaint was forwarded to the learned Railway Judicial Magistrate, Sahibganj by Sub Inspector Arup Mandal, Inspector In-charge, RPF Post, Sahibganj vide application dated 21.05.2005 wherein it was further stated that S.I. Arup Mandal alongwith A.S.I. N.K. Paswan of RPF Post, Sahibganj rushed to the P.O. at about 19.35 hours on 20.05.2005 and found the gate broken and lying on the ground and the driver of the said truck managed to escape at 18:00 hours. They made enquiry, but could not trace out the truck and the driver. Thereafter, on the basis of source information, S.I. Arup Mandal alongwith A.S.I. N.K. Paswan on 21.05.2005 at about 03.35 hours conducted raids at the nearby areas of Sahibganj and at about 06.05 hours, seized the truck at LCT Ghat, Track Parking, Town Thana and a seizure list was prepared in presence of available witnesses and the truck was brought at RPF Post, Sahibganj with the help of another driver, but the raiding party could not arrest the driver of the offending truck. 12. After enquiry, prosecution report dated 14.08.2005 was submitted under Section 160(2) of Railway Act against the sole accused (the petitioner herein) and cognizance of the offence was taken on 31.08.2005. 13. In course of recording evidence before charge, 08 charge-sheeted witnesses were examined on behalf of the prosecution. On the basis of evidence recorded before charge, on 06.08.2009, the substance of accusation under Section 160(2) of Railway Act was read over and explained to the petitioner in Hindi to which he pleaded not guilty and claimed to be tried. 14. In course of evidence after charge, 07 witnesses were produced for cross examination. P.W.-2 did not turn up for his cross-examination. 15. P.W.-1 is Nawal Kishore Paswan, A.S.I. at RPF Post, Sahibganj is the official witness and is also a seizure list witness who, in his examination-in-chief, deposed that on 21.05.2005, a memo was received regarding information that the Gate No. 56B at Sahibganj south side has been broken by one truck bearing registration no. BHQ-2561 and he visited the place of occurrence alongwith the A.S.I. Arup Mandal and cabin man was asked about the occurrence. BHQ-2561 and he visited the place of occurrence alongwith the A.S.I. Arup Mandal and cabin man was asked about the occurrence. They tried to look for the truck, but were unable to find it out and on 21.05.2005, the truck was located at LCT Ghat and the driver was not present. The truck was seized and a seizure list was present. He exhibited his signature on the seizure list as Exhibit-1. In his cross-examination, he admitted that the cabin man provided the truck number and he did not see the occurrence. He does not have information as to who was driving the vehicle. 16. P.W.-2 is Dilchand Karmakar, who is another seizure list witness who proved his signature on the seizure list as Exhibit-1/1. He is the driver who brought the vehicle to RPF Post, Sahibganj. This witness did not turn up for his cross-examination after framing of charge and accordingly, the learned trial court was of the view that his deposition has got no evidentiary value. 17. P.W.-3 is Anil Kumar Roy, the cabin man at Sahibganj Railway Station who, in his examination- in-chief, stated that the occurrence took place on 20.05.2005 at about 6 p.m. and he was deputed as cabin man at the gate and on that very day, 240 DN left the station and he was informed by the Deputy Station Master that the train has departed and the gate be closed. He started closing the gate and when the gate was half closed, a truck speedily came from south side and broke the boom. The truck managed to escape. The shopkeepers told him that the number of truck was BHQ-2561 and in his cross-examination, he stated that he had not seen the number himself. 18. P.W.-4 is Pranab Kr. Biswas, S.S.E. Signal who deposed that on 20.05.2005, he was posted as S.S.E. Signal, Sahibganj and the vehicle no. BHQ-2561 damaged the gate and caused loss of Rs.10,000/-. He exhibited his letter given to R.P.F. requested for action as Exhibit-2. In his cross-examination, he admitted that he did not see any vehicle breaking the gate. 19. P.W.-5 is Md. Jahangir Alam, A.S.I., R.P.F. and he, in his examination-in-Chief, stated that he found the Truck No. BHQ-2561 in the LCT ghat truck parking which was seized and the seizure list was prepared by Arup Mandal and he had put his signature on it. 19. P.W.-5 is Md. Jahangir Alam, A.S.I., R.P.F. and he, in his examination-in-Chief, stated that he found the Truck No. BHQ-2561 in the LCT ghat truck parking which was seized and the seizure list was prepared by Arup Mandal and he had put his signature on it. He proved his signature on the seizure list as Exhibit-1/2. In his cross-examination, he admitted that he did not see the truck himself while breaking the gate and no person was present in the truck, when he had found the truck. 20. P.W.-6 is S.I. Arup Mandal, Inspector In-charge, RPF Post, Sahibganj who is the Investigation Officer of the case. In his examination-in-chief, he deposed that on 20.05.2005, he got information that Truck No. BHQ-2561 has broken the south side boom of railway and the truck has been taken away and, on this information, he alongwith N.K. Paswan went to the place of occurrence at 03.35 hours and found the boom lying there. He further deposed that in course of search on 21.05.2005, the truck was located at LCT Ghat, Sahibganj truck parking loaded with chips and the driver was not in the truck. The truck was seized and a seizure list was prepared. He proved the seizure list as Exhibit-1/3. He further deposed that he had conducted the enquiry in the case and had prepared the site plan. He proved the site plan as Exhibit-3 and the prosecution report as Exhibit-4. He admitted that he had not seen the occurrence while breaking the gate. In his cross-examination, he admitted that he had recorded the statements of the witnesses who are government servants except Dilchand Karmakar (P.W.-2) and Sunil Kr. Sah, the shopkeeper (P.W-8). He further stated that he had taken help of Dilchand Karmakar (P.W.-2) to bring the seized truck to RPF Post who is a seizure list witness of the truck. 21. P.W.-7 is Rajni Kant Singh, ASM, East Outer Cabin, Sahibganj who in his examination-in-chief, deposed that on 20.05.2005, he had given order to start 440 DN and had ordered to close the gate and Truck No. BHQ-2561 had damaged the gate. He had given complaint information to R.P.F. Post, Sahibganj. He proved the Complaint as Exhibit-5. He admitted that he did not see the number of the truck himself. He had given complaint information to R.P.F. Post, Sahibganj. He proved the Complaint as Exhibit-5. He admitted that he did not see the number of the truck himself. In his cross- examination, he stated that at the time of the accident, it was the local persons who saw the registration number of the truck. 22. P.W.-8 is Sunil Kumar Shaw. He has been declared hostile by the prosecution. His attention was drawn towards the statement given to the police and his signature on the statement which was marked as Exhibit-6 and in his cross examination, he has admitted that he does not know anything about the occurrence and he did not see the occurrence. 23. The prosecution also exhibited certain documents. The signature of P.W.-1 on the seizure list was marked as Exhibit-1; the signature of P.W.-2 on the seizure list was marked as Exhibit-1/1; the signature of P.W.-5 on the seizure list was marked as Exhibit-1/2; the seizure list was marked as exhibit-1/3. The information regarding damage was marked as Exhibit-2; the site plan was marked as Exhibit 3; the prosecution report was marked as Exhibit-4; the Complaint was marked as Exhibit-5 and the signature of P.W.-8 Sunil Kumar Shaw on the statement given by him to the police was marked as Exhibit-6. 24. On 06.08.2009, the statements of the petitioner were recorded under Section 313 Cr.P.C wherein he denied the allegation and claimed to be innocent. The petitioner did not examine any witness in his defence. 25. This Court finds that P.W.-2 did not turn up for his cross-examination after framing of charge and P.W.-8 has been declared hostile by the prosecution. This Court further finds that P.W.-1, P.W.-3, P.W.-4, P.W.-5, P.W.-6 (Investigating Officer), P.W.-7 (Cabin man) have admitted that they did not see the occurrence themselves while breaking the south side boom of Level Crossing Gate No. 56B, and P.W.-1 has further admitted that he does not have any information as to who was driving the offending truck. P.W.-8 (shopkeeper and independent witness), who had turned hostile had also stated in his cross examination that he had not seen the occurrence but his statement before police was marked as exhibit -6 and even in exhibit -6, he had neither disclosed the name nor disclosed the identity of the driver of the offending truck. P.W.-8 (shopkeeper and independent witness), who had turned hostile had also stated in his cross examination that he had not seen the occurrence but his statement before police was marked as exhibit -6 and even in exhibit -6, he had neither disclosed the name nor disclosed the identity of the driver of the offending truck. This Court further finds that P.W.-1, P.W.5 and P.W.-6 have further admitted that no person was present in Truck No. BHQ-2561 when it was seized at LCT Ghat, Sahibganj truck parking area. 26. This Court finds that none of the prosecution witnesses had seen the driver of the offending truck which broke and damaged the south side boom of the said gate. From the facts and circumstances of the case, this Court is of the view that the prosecution has failed to establish the identity of the driver of the offending truck and accordingly, the prosecution has failed to prove the case against the petitioner beyond all reasonable doubt. 27. The learned trial court while considering the arguments advanced on behalf of the parties scrutinized the evidence of the witnesses regarding the incident, the loss caused and also recorded that P.W.-2, Dilchand Karmakar was the person who brought the truck from LCT gate to RPF post, but he did not appear for cross-examination after framing of the charge. While considering the involvement of the petitioner, the trial court recorded a finding that the very case of the prosecution is that the driver managed to escape with the vehicle and the truck number was seen by the nearby shopkeepers and one shopkeeper Sunil Kumar Shaw was made a witness, but he became hostile and further recorded that now it is common experience that not many person come forward to assist the cause of justice and no reason has been assigned for false implication and admittedly there is lacuna in enquiry and it is not fatal to the prosecution and thus, convicted the present petitioner by stating that the prosecution has been able to prove the case beyond all reasonable doubt. 28. From perusal of the entire judgment passed by the learned trial court, this Court finds that not even an iota of evidence has been recorded regarding involvement of the present petitioner who was charged being the driver of the offending truck and in spite of this, the present petitioner has been convicted. 29. 28. From perusal of the entire judgment passed by the learned trial court, this Court finds that not even an iota of evidence has been recorded regarding involvement of the present petitioner who was charged being the driver of the offending truck and in spite of this, the present petitioner has been convicted. 29. So far as the impugned judgment passed by the learned appellate court is concerned, a specific plea was raised by the present petitioner before the appellate court that there is no evidence that the truck was being driven by the petitioner on the alleged date of occurrence. It was also argued that according to the evidence of P.Ws.1, 3 to 7, neither the petitioner was seen near the alleged place of occurrence, nor the offending truck bearing no. BHQ-2561 was seized by the RPF staff at place of occurrence. Further, the petitioner was not arrested with the truck. The learned appellate court considered the evidences of the various witnesses, but has not indicated statement of any of the witnesses which suggests that it was the petitioner who was driving the offending truck. The learned appellate court did not consider the aforesaid specific argument raised by the petitioner and returned a finding that the learned trial court had rightly scrutinized the evidence and upheld the judgment and sentence passed by the learned trial court. 30. This Court has also gone through the statement of the eye witness to the occurrence, P.W.-8, which was given to the police and was marked as Exhibit-6. P.W.-8 was declared hostile by the prosecution, but his attention was drawn to the statement given to the police. This witness also did not take the name of the petitioner and in cross-examination, he stated that he did not see the occurrence and did not know anything about the occurrence. This Court finds that P.W.8, even in his statement before the police, exhibit-6, he did not disclose the name and identity of the driver of the offending truck. He only disclosed the incident and registration number of the offending truck. 31. From perusal of the impugned judgments passed by the learned courts below, this Court finds that no iota of evidence has been recorded in the impugned judgments in connection with the involvement of the petitioner and none of the witnesses had taken the name of the petitioner or disclosed his identity. 31. From perusal of the impugned judgments passed by the learned courts below, this Court finds that no iota of evidence has been recorded in the impugned judgments in connection with the involvement of the petitioner and none of the witnesses had taken the name of the petitioner or disclosed his identity. There is also no evidence that the petitioner was driving the vehicle or was even seen at or around the place of occurrence on the date of incident. Admittedly, even when the offending truck was seized on the next day from a location other than the place of occurrence, the petitioner was not found on the spot and admittedly, the truck was brought by P.W.-2. During the course of arguments, learned counsel appearing on behalf of the opposite parties failed to point out any evidence on record to show that the petitioner was involved in the alleged offence in spite of having been given opportunity to do so. 32. This Court finds that the conviction of the petitioner for the alleged offence caused by driving of the vehicle is ex-facie perverse and he has been convicted without any evidence against him available on the records of the case. Accordingly, this Court in revisional jurisdiction, in order to meet the ends of justice, herby sets aside the impugned judgments of conviction and the order of sentence passed by the learned courts below and the petitioner is acquitted from the charge thereunder. Accordingly, the present criminal revision petition is hereby allowed. 33. The petitioner is discharged from the liability under the bail bond furnished by the petitioner. 34. Pending Interlocutory applications, if any, are dismissed as not pressed. 35. Let the lower court records be sent back to the learned court below. 36. Let this order be communicated to the learned court below through FAX/e-mail.