- (1.) KUNDAN Singh, J. This revision is directed against the judgment and other dated 14-6-84 of Sessions Judge, Pilibhit, dismissing the criminal appeal No. 28 of 1984 confirming the conviction and sen tence of the applicant awarded by III Addl. Munsif Magistrate, Pilibhit on 27-2-84 in case No. 792 of 1982.
(2.) THE applicant while driving Tractor No. UPE 5521 on 17-6-82 dashed his tractor with the rear compartment of the passenger train No. 58 in between the railway stations Lalauri Khera and Pilibhit. THE applicant caused damage to the foot-board of the compartment. THE matter was reported to the police. After completion of investiga tion a charge sheet was submitted against the applicant. During the trial Sri Tara Chand (P. W. 1), Sri B. D. Ahuja, Guard of the train and Sri Har Kishan Driver (P. W. 3) and Sri Lalta Prasad S. O. G. R. P. (P. W. 4) besides the other witnesses were examined in order to prove its case. THE Guard and Driver of the train were the witnesses of the factum of incident. THE accused denied the prosecution version and stated in his state ment that he has been falsely implicated in the present case due to enmity. He further stated that the railway employees were taking out coal and on his refusal (sic) to do so, the railway employees falsely implicated in the instant case. The learned Magistrate believed the evidence on record and convicted and sen tenced the accused under Section 279 & 426, I. P. C. and 124, Indian Railways Act awarding sentence of three months R. I. , and fine of Rs. 100 and a fine of Rs. 25/ respec tively. In default of payment of fine, the applicant was directed to undergo further imprisonment for one month by judgment and order dated 27-2-84. The applicant preferred his appeal before the Sessions Judge, who dismissed the same, affirming the conviction and sen tence recorded by the court below. The ap plicant has challenged the finding of the court below on the ground that the prosecu tion has failed to establish that the applicant was driving the vehicle rashly and negligent ly and the prosecution witness has also failed to identity of the tractor which had actually hit the running train. The applicant had collided his tractor to the running train. The tractor and the train were stopped soon after the collision and the applicant was arrested at the spot. The Guard and Driver of the train checked the foot-board of bogy No. CE 5891-D which was found broken and the tractor was also there in a damaged condition.
(3.) I am unable to accept that the ap plicant was not driving the tractor rashly and negligently in the facts and circumstan ces of the case, whereby he had broken the foot-board of the compartment. If the ap plicant could not control his tractor and dashed the train, then the rash and negligent driving will be presumed. So far as the iden tity of the tractor is concerned, courts below have considered this aspect and recorded the finding that it was the applicant's tractor which collided with the relevant train. There was no other ambiguity regarding the number of tractor in the statements of the witnesses. It was nothing but a slip of memory. Finding is based on evidence on record that it was the tractor of the ap plicant which dashed with the compartment of the railway train, List has been revised. No body is present on behalf of the applicant to press this revision.;