J UDGMENT & O RDER : KAUSHIK GOSWAMI, J. Heard Mr. A. Lal, learned Counsel appearing for the petitioner. Also heard Mrs. N. Das, learned Additional Public Prosecutor appearing for the State respondent. 2. This criminal revision petition is filed under Section 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to “Cr.P.C”) seeking quashing of the judgment & order of conviction and sentence dated 18.04.2012 passed against the petitioner/accused by the learned Judicial Magistrate First Class, Biswanath Chariali in G.R. case No. 628/2005 registered under Sections 279/427/304(A) of the Indian Penal Code (hereinafter referred to as “IPC”), whereby the petitioner/accused was convicted and sentenced to undergo Rigorous Imprisonment for 2(two) years under Section 304(A) of IPC, Rigorous Imprisonment for 6(six) months under Section 279 of IPC, and a payment of Rs. 1,000/- under Section 427 of the IPC; in default to suffer Simple Imprisonment for another 2(two) months and the judgment & order dated 26.09.2012 passed by the learned Additional Sessions Judge, (F.T.C.) Biswanath Chariali, (hereinafter referred to as the “appellate Court”) in Criminal Appeal No.22(S-2)/12 upholding the judgment of conviction of sentence passed by the trial Court in G.R. Case No. 628/2005. 3. The brief facts of the case is that on 24.11.2005 an F.I.R. was lodged alleging inter alia that on 24.11.2005 at around 9.30 a.m., while the informant’s maternal uncle’s son namely Padmeswar Tabu was coming on his bicycle, he was hit by a truck bearing registration No.AS-01-K- 5357, which was driven by its driver rashly and negligently. Accordingly, a case was registered and after completion of investigation, Charge-sheet was submitted whereafter, the trial Court framed charge under Sections 279/427/304(A) of IPC and the trial commenced. During trial, the prosecution adduced 6(six) prosecution witnesses, whereas the incriminating materials were put to the petitioner/accused in his examination under Section 313 of Cr.P.C., which he generally denied and chose not to adduce any evidence. Thereafter, the trial Court convicted the petitioner/accused and sentenced thereunder, which was challenged in appeal by the petitioner/accused and the appellate Court was pleased to dismiss the same. Situated thus, the present criminal revision petition has been filed. 4. Mr. Thereafter, the trial Court convicted the petitioner/accused and sentenced thereunder, which was challenged in appeal by the petitioner/accused and the appellate Court was pleased to dismiss the same. Situated thus, the present criminal revision petition has been filed. 4. Mr. A. Lal, learned Counsel for the petitioner/accused submits that the judgment & order of the trial Court as well as the appellate Court is manifestly erroneous in law inasmuch as there is no evidence whatsoever, based on which the guilt of the petitioner/accused is established. 5. Per contra, Mrs. N. Das, learned Additional Public Prosecutor, Assam for the State respondent submits that it is apparent from the evidence of the eyewitnesses that the petitioner/accused is guilty of the offences and hence the conviction rendered by the trial Court which is affirmed by the appellate Court ought not be disturbed by this Court. 6. I have given my prudent consideration to the arguments advanced by the learned Counsels for both the contending parties and have perused the material available on record. 7. It appears that the trial Court has held that PW-1, PW-2, PW-3 and PW-4 have not seen the occurrence but are mere hearsay witnesses. Paragraphs 7, 8, 9 & 10 of the judgment & order of the trial Court is reproduced hereunder for ready reference: - “7. Before appreciation of the evidence of the prosecution side I would like to high light the prime contentions of the prosecution side. In the instant case in hand the case of the prosecution is that 'on 24-11-05 at 9-30 am son of maternal uncle of the informant named Padeswar Tabu was coming through 52 National High Road towards Gahapur through by-cycle at that time one truck no-AS-01K- 5357 was coming from Lakhimpur rashly and negligently dashed him in front of Gopalpur Girls High School and cashed death?. So, it appears that prosecution side has to prove the fact that driver of the Truck No-01K-5357 knocked the brother of the informant in front of the school rashly and negligently and caused death. 8. Let have a look what the witnesses of the prosecution side have deposes before the court I have perused the deposition of PW-1 carefully where I find that PW-I only heard about the accident and seen one man fallen down on the left side of the road. He heard that truck dashed the said man. 8. Let have a look what the witnesses of the prosecution side have deposes before the court I have perused the deposition of PW-1 carefully where I find that PW-I only heard about the accident and seen one man fallen down on the left side of the road. He heard that truck dashed the said man. He has not seen that accident. PW-2 in his depositions stated that in the year 2009 Padmeswar Tabu was coming through his cycle from eastern side to western side at 9-30am at that time one truck came from Tezpur side and dashed him and caused death. Later on he went to the Police Station. Peoples told him that truck dashed Padmeswar from the wrong side. So, it appears that PW-2 also heard about the incident. 9. Now let have a look what the other witnesses have deposes before the court. PW-3 in his deposition stated that son of his maternal uncle named Padmeswar was coming to take SUTA. At that time one truck coming opposite from Gahapur knocked him and caused death. They came to Gahapur Police Station. In his cross-examination he deposes that he don’t know how accident took place. He doesn’t know which was the truck and driver. He filed the Ejahar as per the direction of the Police. So, it appears that PW-3 also not seen the accident and he only heard about the accident. 10. PW-4 in his deposition stated that on 24-11-05 Minister Ripun Borah conducted a meeting at Gahapur and distributed SUTA. Padmeswar was came to take SUTA through cycle from eastern side to west and from the opposite side from Tezpur one truck came and dashed Padmeswar and caused death he heard about that. When he came to the place of the incident he came to know that truck was came from wrong side and dashed Padmeswar. So, it appears that PW-4 also heard about the incident and he came to place of incident after the accident is over.” 8. When he came to the place of the incident he came to know that truck was came from wrong side and dashed Padmeswar. So, it appears that PW-4 also heard about the incident and he came to place of incident after the accident is over.” 8. It further appears that the trial Court after looking into the testimony of PW-5 has come to the finding that it is PW-5 who has seen the whole accident by standing nearby and that it clearly appears from the evidence of PW-5 that 2(two) trucks were coming from Tezpur side and one truck tried to overtake another truck and knocked the deceased person on the wrong side and caused death of the said person. It appears that in the light of the aforesaid deposition of PW-5, the trial Court held the petitioner/accused guilty of the offence alleged and passed sentence thereof. 9. Apt at this stage to refer to the testimony of PW-5, which is reproduced hereunder for ready reference: - “ THE DEPOSITION OF P.W.-5 Before B.K. Chetri, J.M.F.C., B/Chariali Date: 16-11-07 My Name is Sri Debojit Baruah (26) S/O Sri Chandrakanta Baruah Of village Amalapathar Where I am Cultivator. On Oath, Around 9.30 A.M. on 24-11-05 the accident took place in front of Gopalpur Balika High School on the national highway at Gopalpur. One truck coming from B/Chariali side knocked down a person at the edge of the road who was coming from opposite direction on a bicycle. The said man was coming from Kalabari towards east side to Gohpur on the bicycle. While the truck was overtaking another truck, it knocked down the man. The man died on the spot. Cycle was damaged. I was standing nearby. I saw the accident and the truck fled away after causing the accident. I know that he is a resident of Howajan O.P. Other man informed at police station. Police came. Police seized the bicycle involved in the accident and seized the notice of the meeting vide Ext.-3. Ext.-3(1) is my signature. People were coming from some meeting. XXX cross XXX I do not remember the date of Assamese calendar on the day of accident. I had signed in the seizure list at the place of occurrence. My residence is about 2 farlong away from the place of occurrence. I was standing by at tiniali. The accident took place near it. People were coming from some meeting. XXX cross XXX I do not remember the date of Assamese calendar on the day of accident. I had signed in the seizure list at the place of occurrence. My residence is about 2 farlong away from the place of occurrence. I was standing by at tiniali. The accident took place near it. There is a school in the northern side 10 feet away from the tiniali. I do not know the number of the truck. I do not know the truck driver. I also do not know the name of the person who died in the accident. While police arrived at there I came to know that the person was of Gohpur Nigam. The accident took place on the National Highway. Two trucks were coming from the same direction and caused the accident due to overtaking. The police examined me at the place of occurrence. I did not tell police that I was near the place of occurrence at the time of accident. I also did not tell the police that the accident had taken place while the said truck was overtaking another truck. I have not seen the seized articles in the court, it is not true that I had not seen the occurrence with my own eyes and that I made false statements that I had seen the occurrence.” 10. It appears that PW-5 deposed that he saw that while the trucks were overtaking, one of the truck knocked down the deceased and thereafter fled away. It appears that PW-5 witnessed the seizure of the bicycle involved in the accident and also the seizure of the notice of the meeting by Exhibit-3. It further appears that during cross- examination he clarified that he had signed the seizure list at the place of occurrence. It further appears that he further clarified that he did not know the registration No. of the truck nor did he know the truck driver and that only after the police arrived there he came to know that the person was of Gohpur Nigam. It further appears that PW-5 has not stated before the police during his examination under Section 161 of Cr.P.C. that he was standing near the place of occurrence at the time of accident and that the accident had taken place while the said truck was overtaking another truck. It further appears that PW-5 has not stated before the police during his examination under Section 161 of Cr.P.C. that he was standing near the place of occurrence at the time of accident and that the accident had taken place while the said truck was overtaking another truck. It further appears that he further clarified that he had not seen the seized articles in the Court. 11. Thus, what is abundantly clear from the perusal of the testimony of PW-5, on the basis of which the trial Court has held the petitioner/accused guilty, has not identified the truck which is alleged to have hit the deceased person. He further has not identified the petitioner/accused as the driver of the said truck. It is absolutely clear that the evidence of PW-5 cannot be taken as sufficient to connect the petitioner/accused to be the driver of the offending vehicle. That apart, it appears that the Investigating Officer has not been examined as a witness. In fact, the seizure of the truck in question appears to have not been exhibited before this Court by any of the witnesses. It appears that though the seizure of the truck in question has been done by Exhibit-3, PW-5 who is one of the seizure witnesses to the said so called seizure did not say a word as regards the seizure of the truck during his deposition before the trial Court. In fact, he had clearly stated that the truck fled away from the place of occurrence and it appears that he had clarified during cross-examination that he had signed the seizure list i.e. Exhibit-3 at the place of occurrence. It further appears that no MVI Report as regards the alleged accident has been submitted by the Investigating Officer. 12. Hence, there being absolutely no evidence whatsoever, to connect the petitioner/accused to the charged offence, the verdict of the trial Court appears to be based on no evidence. 13. In view of the above, it is apparent that the prosecution has failed to prove beyond reasonable doubt that the petitioner/accused is involved in the alleged offence. 14. This brings me to the judgment & order of the appellate Court. Apt to reproduce paragraphs 17 to 21 of the judgment of the appellate, which is extracted hereunder for ready reference: - “17. 14. This brings me to the judgment & order of the appellate Court. Apt to reproduce paragraphs 17 to 21 of the judgment of the appellate, which is extracted hereunder for ready reference: - “17. It apepars from order dated 23.3.12 passed in G.R. Case No.628/05 by the learned Judicial Magistrate, First Class, that the examination of the Investigating Officer was dispensed with as he could not be produced despite several summons were issued to him. This court after delving deep into the matter is of the opinion that non examination of the Investigating Officer should not come in the way as the prosecution has otherwise been able to prove the case beyond all reasonable doubts. From the case diary as well as the documents submitted by the Investigating Officer while charge-sheeting the accused, seem to be enough to establish the case of the prosecution. Although the Investigating Officer was not examined, the same will definitely not pose as a hurdle for the prosecution case for the reason that the I.0. would have parroted the contents of his case diary as well as the documents submitted by him if he was examined. In other words, the Investigating Officer would not have gone beyond his case diary as well as the, documents submitted by him would not have made any difference to the prosecution case. As such, the case will not fall for non-examination of Investigating Officer as the prosecution has been able to substantiate its case due to hard as well as circumstantial evidence adduced by it. 18. The prosecution case got bolstered when it was proved that the driver i.e. the accused had driven the vehicle i.e. the truck bearing registration No.AS- 01/K-5357 when the accident occurred on 24/11/05. This fact has been substantiated by the seizure list i.e. M.R. No.43/06 (Z/No.25/06) from where it is evident that the accused was driving the aforesaid vehicle when the accident occurred, having his driving licence bearing number F-23092/S/Prof., which was valid up to 21.5.07. 19. As such, there is no apprehension or doubt regarding the involvement of the truck in the accident, which was driven by the accused at the time of accident, which caused the death of Padmeswar Tabe. 19. As such, there is no apprehension or doubt regarding the involvement of the truck in the accident, which was driven by the accused at the time of accident, which caused the death of Padmeswar Tabe. Another factor for which the prosecution case got a shot in the arm is the fact that the accused fled away from the place of occurrence just after the accident and later on apprehended by the police personnel of the Gohpur P.S. This attitude of fleeing from the scene speaks volume about the involvement of the accused in the accident. 20. In view of foregoing scrutinisation of evidence on record, it is crystal clear that the accused had driven the aforesaid vehicle in a rash and negligent manner which caused the accident culminating in death of Padmeswar Tabe. The rash and negligent driving of the accused is pre-dominant here as he tried to overtake another truck and in the process he knocked down the cyclist who was proceeding on his normal path. Had the accused avoided the overtaking of another truck, his truck would not have veered and deviated from its normal path by causing the death of Padmeswar Tabe. This fact is sufficient and enough to book the accused U/S-279/304(A) of the IPC. 21 From the evidence of PW-5 i.e. the eye witness it has unravelled that he has seen the bicycle which the deceased was riding at the time of accident in a damaged condition. This fact has been authenticated by Ext.3, from where it can be seen that the said bicycle was seized from the place of occurrence, which was ridden by the deceased at the relevant time. As such, the offences against the accused U/S-427 of the IPC has also been corroborated.” 15. It is a settled legal proposition that if the trial Court and the appellate Court has recorded the finding of fact, the question of reappreciation of evidence by the 3 rd Court does not arise unless it is found to be totally perverse. 16. Reading of the appellate Court’s judgment, it appears that the appellate Court has held the petitioner/accused to have driven the truck in question at the time of the accident which caused the death of the deceased. Such finding of the appellate Court is based on no evidence and therefore is totally perverse. 17. 16. Reading of the appellate Court’s judgment, it appears that the appellate Court has held the petitioner/accused to have driven the truck in question at the time of the accident which caused the death of the deceased. Such finding of the appellate Court is based on no evidence and therefore is totally perverse. 17. In view of the above, this Court is of the unhesitant view that the judgment & order of the trial Court as well as the appellate Court is manifestly and palpably erroneous and totally perverse and therefore, liable to be interfered with. 18. Accordingly, the judgment & order dated 18.04.2012 passed by the learned Judicial Magistrate First Class, Biswanath Chariali in G.R. case No. 628/2005 under Sections 279/427/304(A) of the IPC and the judgment & order dated 26.09.2012 passed by the learned Additional Sessions Judge, (FTC) Biswanath Chariali, in Criminal Appeal No.22(S-2)/12 are set aside and quashed. 19 . Resultantly, the criminal revision petition stands allowed and is disposed of. 20. As such, the petitioner is acquitted for the offence punishable under Section 279/427/304(A) of IPC. Bail bonds so furnished by the petitioner stand cancelled and surety discharged. 21. Return the case records.