Murlidhar - (1.) REVISIONIST Mohd. Ashraf has been convicted under Section 279, 337 and 304 (A) IPC and sentenced to R. I. for six months, one year and two years respectively on the three counts all the sentences to run concurrently.
(2.) IN the town of Chandpur in district Bijnor there is a north-south road in the mandi area, The width of the road is about 7 paces and there is a 2 pace wide Kharanja on both sides of it. Att the relevant place to east of this road lies the vacant area used for Sabzi Mandi. To east of this road about 15-20 paces south of a point where another load branches off from it towards west stands a Neem Tree. Under this Neem tree on the edge of this road, the victim Dilip Chand and Om Prakash used to sell cloth on their phar which means a roadside patch of land used for a shop with the wares spread on the ground itself. There is no dispute that on 13-12-75 at about 4.30 p. m. truck no DHG 2558 laden with 105 bags of sugar coming from north collided with Om Prakash and his father Dilip Chand and stopped within three or four paces. Both Om Prakash and Dilip Chand were injured and Om Prakash died on the way to hospital. The prosecution case was that the truck was being driven fast and in a rash manner. The revisionist claimed that he was quite slow, that Om Prakash and Dilip Lhand suddenly came in front of the truck when trying to cross the street, that inspite of his best efforts to stop the vehicle, they g?t injured, and that he was not at fault. The prosecution examined four witnesses about the occurrence, P. W. 4 Dilip Chand injured and P. Ws. 1 to 3 Devi Dayal, Shyam Sunder and Madan Lal of whom Shyam Sunder had his shop on title same street a few paces to north of the place of occurrence. All of them stated that the truck was fast and virtually ran over the injured persons sitting on the phar. They denied the suggestion that the victim were trying to cross the road. In an examination of the vehicle on 17-12-75 Foreman of the Roadways Corporation found the brakes of the vehicle to be defective. The trial court held that although the truck was not fast the revisionist was clearly driving rashly and negligently and the defective brakes in no way diminished his liability The Sessions Judge in appeal took the same view observing that on a crowded road with aj heavy load the duty of care on the part of the driver was ever greater. He also took note of the investigating officer's evidence that after the accident the truck was found to have got over the phar. In revision these findings have been challenged. It may be straightway mentioned that the learned counsel for the revisionist is correct in pointing out a confusion in the judgment of the Sessions Judge. The Sessions Judge seems to have towards the end of the judgment acted on the impression that the truck was going towards north and was about to turn westwards in the aforementioned lane branching off that side and probably for that purpose the driver swerved it too fair to east with a view to turn to west after a few paces. This is a total misconception for the uniform evidence is that the truck had come straight down the road [from northside. Therefore, this part of the Sessions Judge's reasoning must be totally rejected.
(3.) THERE was a prayer to remand the case for rehearing of the appeal in view of this flaw in the appellate judgment. I do not consider this course advisable when it is already over five years since the occurrence. it is a simple case and the evidence can be scrutinised in this court. The position is clear that the witnesses uniform testimony coupled with the absence of the defence evidence or circumstantial material discredits the defence version altogether and it must be taken that the truck ran over the sitting phar merchants. The only question is whether the driver can be said to have been rash and negligent The learned counsel for the appellant pointed out that according to the admission of D. W. 1 Devi Dayal at one place the phar was on the Kharanja. This however, cannot be accepted as correct. Even P. W. 1 immediately thereafter aswell as all the other witnesses uniformly stated that the phar was on the outer- edge of the kharanja and beyond it. The Investigating Officer's evidence is clear that the phar adjoined the kharanja but was outside it. Therefore, it cannot be taken that the victims suffered on account of their being on the road.;