C.M. Lodha, C.J.
1. This revision petition has been preferred by the convict Yasin from the judgment of the Additional Sessions Judge, Dungrapur, dated August 12, 1976, whereby the learned Judge upheld the conviction of the accused under Section 279 and 304A I.P.C. and sentence of 2 months and 6 months respectively there under recorded by the Judicial Magistrate Dungrapur.
2. Briefly stated, the facts of the case are that on March 17, 1973, at about 6 P.M. Subhas Chandra deceased and his friend Vishram P.W. 2 were proceeding on a motor cycle from Udaipur to Idar on national highway No. 8. Subhashchandra was driving the motor cycle whereas Vishram was riding on the pillion. At Vichhiwara-Ratanpur section of the road, where there is a turn, the motor cycle struck against the foot-board of truck GTD 5612 which was corning from the opposite direction and was being driven by the accused-petitioner. The prosecution version is that truck was coming at a high speed and turned more towards the right side at the turn with the result that the motor cycle was struck by the truck. As a result of the impact of the motor cycle and the truck, Subash Chandra, who was driving the motor cycle, was thrown away and he received serious injuries while Vishram escaped with minor injuries.
3. The prosecution relied on the statement of Vishram P.W.2 as the other two witnesses examined by the prosecution did not support the prosecution case. Both the courts below have placed reliance on the testimony of Vishram and have held the accused-petitioner guilty on its basis and convicted and sentenced the accused-petitioner as mentioned above.
4. The only point for consideration by this Court is whether from the evidence of Vishram, it can be inferred that the petitioner was guilty of rash and negligent driving, on account of which the accident took place. This is a mixed question of fact and law and therefore I have gone through the statement of Vishram It is abundantly clear from the statement of Vishram P.W. 2 that the truck was being driven on the correct side i.e., left side of the road, and that it was climbing up at the turn where as the motor cycle was climbing down from the opposite direction. A perusal of the site-inspection note as well as the photograph taken after the accident and duly proved by the prosecution makes it clear that the truck, after the accident, had swerved deep on the left side and the motor cycle was lying near the truck. The witness has stated that there was a dent in the foot-board of the truck due to the impact and that the truck was being driven at high speed of 40 to 45 kilo meters per hour. From these two facts, the lower courts have inferred that the truck was being driven rashly and negligently. I am, however, unable to accept this finding. The truck was climbing up and therefore its speed cannot be very high, not at any rate, 40 to 45 kilo meters per hour, whereas the motor cycle was climbing down and therefore it would be reasonable to think that it might be coming at a high speed. Then again, the truck was admittedly on the correct side of the road and it appears that the motor cycle struck against the truck, that is, the motor cycle came on the wrong tide. The mere fact that the foot-board of the truck got a dent, is neither here nor there, because the impact is bound to result in a bang on the footboard irrespective of the fact whether the motor-cycle driver was rash or the truck driver was rash. But the two facts, which clearly stand out in favour of the accused, are that he was on the correct side and he tried to turn to the extreme left when he saw the motor cycle coming towards him to avoid the collision. It would also not be reasonable to presume that the truck was going at a high speed as it was climbing up. Vishram has no doubt deposed in the court that the truck driver did not sound the horn at the turn but in his statement before the police he has not stated so. Be that as it may, it cannot be inferred, in the facts and circumstances of the present case, that the truck-driver was guilty of rash & negligent driving It is unfortunate that Subhash Chandra, who was driving the motor cycle, expired on account of the injuries caused in the course of the accident, but for that reason alone, the accused cannot be held guilty of the offence of rash and negligent driving.
5. In the result, I allow this revision petition, set aside the conviction and sentence awarded to the accused-petitioner by the trial court and upheld by the Additional Sessions, Judge, Dungarpur, and hereby acquit him of the charges under Sections 279 & 304A IPC. He is on bail & need not surrender. The bail bonds are hereby discharged.