JUDGMENT : 1. Heard Mr. B.M. Tripathi, learned Senior counsel appearing on behalf of the petitioner along with Mr. Naveen Kumar Jaiswal and Mr. Randhir Ranjan, Advocates. 2. Heard Mr. P.D. Agarwal, learned counsel appearing on behalf of the State. 3. This criminal revision has been filed for setting aside the order dated 28.05.2014 passed by learned Principal District and Sessions Judge, Seraikella-Kharsawan in Cr. Appeal No. 22/2012 arising out of Seraikella P.S. Case No. 97 of 2010 dated 03.11.2010 which corresponds to G.R. No. 888/2010 registered for offence under Sections 279 and 304A of the Indian Penal Code whereby the order passed by the learned Judicial Magistrate, 1st Class, Seraikella dated 17.01.2012 has been affirmed and for setting aside the judgment dated 17.01.2012 passed by the learned Judicial Magistrate, 1st Class, Seraikella in G.R. No. 888/2010 (T.R. No. 97 of 2012) whereby the petitioner was convicted for offence under Sections 279 and 304A of Indian Penal Code and sentenced to undergo four months Rigorous Imprisonment for the offence under Section 279 IPC and two years Rigorous Imprisonment for offence under Section 304A of the Indian Penal Code. It was further directed by the learned trial court that both the sentences shall run concurrently. Arguments of the petitioner 4. Learned Senior counsel for the petitioner submitted that the judgments passed by the learned courts below are ex-facie perverse. He submitted that the learned courts below have failed to properly appreciate the fact that the chain of events to convict the petitioner is not complete and there are missing links. Learned Senior counsel submitted that admittedly there is no eye witness to the occurrence and further there is no evidence that the accident had taken place by the tractor except that the tractor was found at the place of occurrence without its driver. He further submitted that the owner of the tractor got the vehicle released who disclosed the name of the petitioner as driver the vehicle. He also submitted that the statement of the owner of the tractor was not recorded in the case diary and accordingly, he was not made a charge-sheeted witness. Consequently, the owner of the vehicle was not examined as a prosecution witness. He also submitted that the statement of the owner of the tractor was not recorded in the case diary and accordingly, he was not made a charge-sheeted witness. Consequently, the owner of the vehicle was not examined as a prosecution witness. He submitted that the petitioner had no occasion to cross examine the owner of the vehicle and in the statement made under Section 313 of Cr.P.C, the petitioner had denied the allegations made against him. Learned Senior Counsel also submitted that the evidence on the basis of which the petitioner has been convicted is mainly the evidence of the Investigating Officer and the Doctor. So far as the Doctor is concerned, he has clearly indicated the cause of death, but so far as the occurrence is concerned, the Investigating officer has stated that the owner of the vehicle has got the vehicle released, who disclosed the name of the petitioner and the petitioner surrendered and applied for bail. He also submitted that the M.V.I. Report of the vehicle has also not been brought on record to indicate that it was this tractor only, which caused the accident. Learned Senior counsel also submitted that merely because the petitioner surrendered and applied for bail, the same is not sufficient to convict the petitioner and to hold that it was the petitioner only who was driving the vehicle. The evidence of the investigating officer on this point can at best be said to be hearsay. He submitted that upon perusal of the impugned judgments, it is apparent that there is no evidence on record that the vehicle which is involved in this case had caused the accident causing death of the deceased. He has submitted that there is no eye-witness to the occurrence and nobody has seen the petitioner while running away from the place of occurrence. He submitted that the vehicle was found standing near the place of occurrence, but there is nothing on record to say that the accident was caused by the vehicle and even the M.V.I Report is not there. He also submitted that even the allegation of rash and negligent act has not been proved. 5. He submitted that the vehicle was found standing near the place of occurrence, but there is nothing on record to say that the accident was caused by the vehicle and even the M.V.I Report is not there. He also submitted that even the allegation of rash and negligent act has not been proved. 5. Apart from this, the learned Senior counsel also submitted that the petitioner has remained in custody during the pendency of this criminal revision application as he surrendered on 05.08.2014 and subsequently, was directed to be enlarged on bail vide order dated 15.10.2014 and a few more days must have been taken by the petitioner to furnish the bail bonds, thus the total custody of the petitioner has been for about 3 months. He also submitted that without prejudice to the aforesaid contention on the merits of the case, considering the facts and circumstances of this case, the sentence of the petitioner be modified as the alleged offence is of the year 2010 and about 10 years has already elapsed and the present offence is the first offence of the petitioner. Arguments of the state -opposite party 6. Learned counsel appearing on behalf of the opposite party- State has advanced his arguments. It is not in dispute that there is no eye witness to the occurrence, no eye witness to the rash and negligent driving by the petitioner and nobody had seen the petitioner driving the vehicle. It is also not disputed by the learned counsel that M.V.I report, if any, has not been exhibited to show that the vehicle involved in this case, which was found standing near the dead body of the four year old victim, had any impact with the deceased, much less any material to come to a finding that accident had taken place by virtue of rash and negligent act of driver of this vehicle. Findings of this Court 7. This Court finds that as per the prosecution case, on 03.11.2010 at about 9 a.m., one tractor bearing number JH-05S-6817 was being driven by its driver rashly and negligently and near the house of one Guru Pado Mahato at village Vijay Ashram, the vehicle hit Suman Mahato. In consequence of it, Suman Mahato became injured and expired and thereafter, the driver of the tractor fled away. It is not in dispute that deceased was only 4 years old. In consequence of it, Suman Mahato became injured and expired and thereafter, the driver of the tractor fled away. It is not in dispute that deceased was only 4 years old. On the basis of Fardbeyan of Vinay Kumar Mahato (P.W.-2) which was recorded by ASI Ram Chandra Rai (P.W.- 5) on 03.11.2010 at 11 a.m., Seraikella P.S. Case No. 97 of 2010 dated 03.11.2010 was instituted under Sections 279, 304A of the Indian Penal Code against the driver of the said tractor. Upon investigation, charge-sheet dated 30.11.2010 was filed under Section 279/304A of Indian Penal Code against the petitioner. 8. During trial, the prosecution has examined altogether five witnesses; P.W. 1 – Shankar Mahato, P.W. 2 – Vinay Kumar Mahato, P.W. 3- Kalidas Kalindi, P.W. 4 – Dr. A. M. Dey and P.W. 5 – Ram Chandra Rai (A.S.I.). After the closure of the prosecution evidence, the substance of accusation under Sections 279, 304A of Indian Penal Code was explained to the petitioner, to which he pleaded not guilty and claimed to be tried. The defence was in complete denial from the charge and the specific case of the defence was that the petitioner is innocent and he has been falsely implicated in the case. 9. P.W. 1- Shankar Mahato, in his evidence, stated that he does not know anything about the occurrence and accordingly, he was declared hostile. P.W. 2 – Vinay Kumar Mahato narrated in his evidence that at the time of occurrence, he was busy in painting on the door and on hearing noise, went outside and saw that his son Suman Mahato was lying on the road and one tractor was standing there. This witness has stated that he got information that the tractor pushed and his child expired. The tractor number was not known to this witness. Police recorded his statement and the tractor was seized by the police. The seizure list has been marked as Exhibit- 5. P.W. 3 – Kalidas Kalindi narrated in his evidence that Vinay Kumar is of his village and his son had expired due to road accident. The Doctor – P.W. 4 has stated that he conducted the post-mortem on 03.11.2010. On the same day at about 3.45 p.m., he medically examined the dead body of the deceased Suman Mahato son of Vinay Mahato and found ante-mortem injuries on his body. The Doctor – P.W. 4 has stated that he conducted the post-mortem on 03.11.2010. On the same day at about 3.45 p.m., he medically examined the dead body of the deceased Suman Mahato son of Vinay Mahato and found ante-mortem injuries on his body. The cause of death was hemorrhage and shock due to injuries by blow from heavy object. The time of death was shown to be within 24 hours. The post-mortem report has been marked as Exhibit-3. P.W. 5 is the investigating officer of the case. He has stated that he received the information about the accident on phone and that one person had expired due to road accident. This witness went to the place of occurrence where he recorded the statement of the informant Vinay Mahato. This witness has mentioned that the said tractor was there and has disclosed the number of the tractor and the seizure list (Exhibit- 5) was prepared. The tractor was with trolley. The formal First Information Report was also exhibited by this witness. This witness has stated that the statement of the informant was recorded again and the place of occurrence was inspected. It was on PCC road at village Vijay Ashram, main road, near Maa Durga Niwas Sthan and the house of Guru Pado Mahato. This witness has stated that the statement of witnesses Shankar Mahato and Kalidas Kalindi was recorded, who supported the case. This witness has also stated that during investigation, tractor owner Kanisto Mahato came and produced vehicle documents and the tractor’s driver (the petitioner) also came to the police station and submitted papers of bail. He has stated that the motor vehicle inspection was done and the deceased was sent for post-mortem and after finding the case true, charge-sheet was submitted under Section 279/304A of Indian Penal Code against the petitioner. This witness has also identified the petitioner in the court. 10. After narrating the evidences in the impugned judgment, the learned trial court framed the following question : “Now the question arises that what was the reason behind the death of said Suman Mahato and where did it occur?” 11. This witness has also identified the petitioner in the court. 10. After narrating the evidences in the impugned judgment, the learned trial court framed the following question : “Now the question arises that what was the reason behind the death of said Suman Mahato and where did it occur?” 11. While considering this aspect of the matter, the learned trial court considered the evidence of the informant and recorded that the informant came to the place of occurrence upon hearing noise and when he came out, he saw his son lying and at some distance, one tractor was there. He got information that due to hit by that tractor, his son had expired. Thus, apparently, the P.W. 2 Vinay Kumar Mahato is neither an eye-witness to the occurrence, nor he is an eye-witness to fleeing away of the driver. This witness when came out, saw that his son was lying and at some distance one tractor was there which was subsequently seized. 12. While considering further, the learned trial court considered the evidence of P.W. 4 and recorded that the doctor has deposed that due to external and internal injury, hemorrhage and shock, said Suman Mahato son of P.W. 2 had expired which was caused by blow from heavy object. The learned trial court recorded a finding that considering the circumstantial, oral and documentary evidence as discussed, it is well-established beyond doubt that at PCC road situated at village Vijay Ashram, main road, near Maa Durga Niwas Sthan and the house of Guro Pado Mahato, one tractor bearing no. JH-05S-6817 pushed Suman Mahato and he expired. 13. The learned trial court while proceeding further has held that the informant claimed in his Fardbeyan that due to rash and negligent driving of driver of tractor, the occurrence took place although the informant had come to the place of occurrence only upon hearing noise and found his son lying and the tractor was standing there. On the basis of the aforesaid fact, the learned trial court drew adverse inference against the petitioner regarding the place of occurrence and the manner of occurrence. 14. So far as the involvement of the petitioner is concerned, the learned trial court recorded that the Investigating Officer of the case in his evidence had stated that the tractor was owned by Kanisto Mahato who contacted him and disclosed the name of the driver as the petitioner. 14. So far as the involvement of the petitioner is concerned, the learned trial court recorded that the Investigating Officer of the case in his evidence had stated that the tractor was owned by Kanisto Mahato who contacted him and disclosed the name of the driver as the petitioner. The petitioner also came to the police station and produced papers related with bail. 15. The learned trial court recorded that no other witness mentioned the name of the petitioner or identified him before the court, but was of the view that it cannot be denied that in accident cases, most of the time, it is not possible to see the face of the driver particularly in those cases where the driver runs away from the spot. In such circumstances, the owner of the vehicle is the best person who can clarify as to who was the driver at a particular time. In the present case, the investigating officer himself reached at the conclusion that the petitioner was the driver on the basis of the statement of the vehicle owner and the petitioner himself produced as driver and during his cross-examination, the investigating officer disclosed that the vehicle owner narrated the name of the driver. In view of the aforesaid discussions, the learned trial court held that it was well-established beyond doubt that at the time of occurrence, petitioner was the driver of the tractor. 16. So far as the point of sentence is concerned, the learned trial court recorded that in the present case due to rash and negligent driving of the petitioner, one child aged about 4 years had to lose his life and obviously the parents suffered from severe pain. Considering the case that due to negligent act of the petitioner one person had to lose his life, the learned trial court punished the petitioner under Section 279 of Indian Penal Code for four months and under Section 304A of Indian Penal Code for two years Rigorous Imprisonment and both the sentences were directed to run concurrently. 17. At the appellate stage, the learned appellate court again considered the evidence of all the witnesses. 17. At the appellate stage, the learned appellate court again considered the evidence of all the witnesses. While recording the evidence of P.W. 2 – the informant of the case, the learned appellate court recorded that at the time of occurrence, P.W. 2 was cleaning and washing his house and on Halla, he came out of the house and saw that his son aged about four years namely, Suman Mahato was lying on the ground and one tractor was also parked there. He came to know that the tractor had dashed his son as a result of which, his son died. The police upon his statement, seized the tractor. This particular witness has further stated in his cross-examination that he could not have seen the occurrence and the house of Guru Pado Mahato is situated at about 100 yards from the place of occurrence. The learned appellate court also considered that P.W. 1 – Shankar Mahato had turned hostile and P.W. 3 has stated that the son of P.W. 2 had expired due to road accident. The learned appellate court recorded the evidence of P.W. 4, who proved the post-mortem report and was marked as Exhibit- 3. 18. The learned appellate court considered the evidence of P.W. 5 – the investigating officer of the case. While considering the evidence of P.W. 5, the learned appellate court recorded the manner in which the petitioner was made an accused in the case. This witness has stated that during the course of investigation, the owner of the tractor Kanisto Mahato came to him and he produced the document in connection with the tractor. The driver of the tractor in question i.e. the petitioner also came to the police station and he submitted the bail bonds. This witness has also stated that MVI was done in connection with the tractor. This witness, during his cross-examination, stated that the owner of the tractor disclosed the name of the driver. The learned appellate court recorded that on the perusal of evidence of P.W. 5, there appears that there was a tractor found standing near the place of occurrence and due to dash of that tractor, the son of the informant died and all the witnesses have supported this fact. The learned appellate court also recorded that the P.W. 5 was cross-examined at length and there is no contradiction. The learned appellate court also recorded that the P.W. 5 was cross-examined at length and there is no contradiction. The learned appellate court held that since there is nothing on behalf of defence to disbelieve the fact that the petitioner was not the driver of the tractor in question, that is why there is no reason to disbelieve the fact that the petitioner was driver of the tractor in question and the said tractor was being driven by the petitioner. 19. Thus, on the basis of circumstantial evidence, the learned appellate court held that the petitioner was the driver of the tractor and while doing so, the learned appellate court relied upon the disclosure made by the owner of the tractor to the police and the conduct of the petitioner in furnishing the bail bond. 20. Thereafter, the learned appellate court examined a separate question - Whether the tractor was being driven by its driver rashly and negligently? 21. While examining this aspect of the matter, the learned appellate court recorded as under: “15. Now, a question would arise whether the tractor was being driven by its driver rash and negligently. On perusal of the evidence of P.W. 5, there appears that the place where the tractor was found parked or the dead body of the deceased was found, that place is densed populated area for the reason that there are so many house found standing there. The place of occurrence is a village where there are so many houses. So far as the act of the driver is concerned, it may be ascertained by the facts and circumstances of the case. The evidence adduced by the witnesses suggest that place of occurrence is a village where there are so many houses there. If the tractor would have driven with care and caution, certainly the driver of the said tractor could have stopped it at the place of occurrence. The driver should have also knowledge that if there is a village, he should have driven the tractor with care and caution. The entire facts suggests that the driver of the tractor had no control over his driving that’s why, he could not stop the tractor while the deceased was found present at the place of occurrence. The driver should have also knowledge that if there is a village, he should have driven the tractor with care and caution. The entire facts suggests that the driver of the tractor had no control over his driving that’s why, he could not stop the tractor while the deceased was found present at the place of occurrence. If the driver could have driven the tractor with care and caution, certainly he could have been in position to stop it but he has not done so. There are so many houses present at the place of occurrence, it was the prime duty of accused to take care and the speed of the tractor should be slow, but the entire facts suggest that in spite of the village, the driver could not have moved his tractor with care and caution and speed of the tractor should be slow. But the entire facts suggest that in spite of village, the driver could not have moved his tractor with care and caution with slow speed, otherwise it was not possible that due to driving of tractor, the incident could be possible. But the accident took place in the village which shows that the driver of the tractor in question was not in position to stop his vehicle in question which suggests that there is no reason to disbelieve the fact that said tractor was being driven by its driver rash and negligently.” 22. On the basis of the aforesaid, the learned appellate court upheld the conviction of the petitioner under Sections 279 and 304-A of Indian Penal Code. 23. This Court finds that admittedly there is neither any eye-witness to the alleged occurrence, nor there is any eye-witness that the petitioner was driving the vehicle and had fled away from the place of occurrence. Admittedly, the deceased was only four years of age. There is no evidence as to how the deceased came to the place of occurrence i.e. PCC road and admittedly, no one was with the deceased at the time of occurrence. After the occurrence, the P.W. 2, father of the deceased, came to the place of occurrence upon hearing a noise and when he came to the place of occurrence, he saw his son lying dead and the tractor was standing nearby. After the occurrence, the P.W. 2, father of the deceased, came to the place of occurrence upon hearing a noise and when he came to the place of occurrence, he saw his son lying dead and the tractor was standing nearby. This Court also finds that the Investigating Officer of the case had indicated that M.V.I. was done, but admittedly, the M.V.I report has not been exhibited. Admittedly, no one had seen as to the manner the tractor was being driven and there is no evidence on the point of the manner that the tractor was being driven much less its rash and negligent driving by the driver. Further, the learned appellate court has recorded a finding that the vehicle was being driven rashly and negligently by considering the fact that the place of occurrence is a busy place and the driver of the tractor should have been careful and cautious and speed of the tractor should be slow, although there is no evidence that the tractor was being driven in a speed much less, high speed. The learned lower courts below have failed to consider that a child was let loose on the road who was merely four years of age and have drawn inference, considering the locality, that there was no reason to disbelieve that the tractor was being driven by its driver rashly and negligently. This court is of the considered view that the prosecution has miserably failed to prove that the tractor was being driven rashly and negligently and in fact there is no evidence on record to prove that the tractor was being driven rashly and negligently resulting into death of the child on the road. The reasoning given by the learned courts below to hold that the driver was driving the tractor rashly and negligently is based on no evidence and on preponderance of probabilities. It is true that when a person is driving on a village road, he is required to be more careful, but that does not mean that in case of any accident, rash and negligent driving can be straightway imputed to the driver of the vehicle without any evidence to rash and negligent driving. It is true that when a person is driving on a village road, he is required to be more careful, but that does not mean that in case of any accident, rash and negligent driving can be straightway imputed to the driver of the vehicle without any evidence to rash and negligent driving. The prosecution has failed to prove rash and negligent driving of the tractor beyond shadow of all reasonable doubts and accordingly one of the basic ingredients of section 279 as well as section 304-A of Indian Penal Code has not been proved by the prosecution. In view of the aforesaid, this court is of the considered view that this is a fit case for exercise of revisional power to set aside the impugned judgments of conviction of the petitioner in order to prevent failure of justice. The impugned judgments and the sentences passed by both the learned courts below are hereby set-aside and the petitioner is hereby acquitted giving him the benefit of doubt. 24. Accordingly, this criminal revision is hereby allowed. 25. The bailors of the petitioner are discharged of their liabilities under the bail bonds. 26. The office is directed to immediately communicate this judgment to the learned court below by FAX/e-mail and also to send back the records to the concerned court below.