- (1.) THIS revision petition is directed against the judgment dated 11. 6. 1981 of the learned Additional sessions Judge, Udaipur, whereby, he dismissed the appeal against the judgment dated 4. 11. 1979 passed by Additional Civil Judge and Judicial Magistrate, Udaipur. The conviction and sentences awarded to him under section 279 I. P. C. to one moths' simple Imprisonment and a fine of Rs. 200/-, under section 304-I. P. C. to one year Rigorous Imprisonmnent and a fine of Rs. 500/- and is default of payment of fine to further undergo two months' Simple Imprisonment. It was also ordered that both the sentences will run concurrently.
(2.) LEARNED counsel Mr. M. C. Bishnoi for Mr. N. N Mathur appearing on behalf of the accused petitioner has submitted that there is no eye-witness of the accident and conviction was based on the mere testimony of a child witness Rakesh Kumar (P. W. 7 ) without ascertaining the fact of his understanding. Therefore, the trial is liable to be vitiated. Mr. Bishnoi has further submitted that the accused petitioner may be granted the benefit of probation of offenders' Act which the learned lower court has not considered. Learned public prosecutor has submitted that there is concurrent finding on facts arrived at by both the courts below, hence, no interference is called for. He has further submitted that benefit of probation of Offenders' Act cannot be extended due to the death of a young boy. I have considered the arguments advanced by both the learned counsel and have gone through the record. The conviction can be passed on the basis of sole testimony of witness provided that the court is fully satisfied itself. The learned trial court while examining the child witness-Rakesh Kumar (P. W. 7)has put same questions to knew the understanding of the bey and after fully satisfied itself that witness understands the oath and the questions then it proceeded to record his statement. Therefore, it cannot be said that the evidence is inadmissible and vitiates the trial. Rakesh Kumar (P. W. 7), who is the elder brother of the deceased, has stated that while he was crossing read with his younger brother, the Roadways bus came suddenly and hit his younger brother and due to this his brother died. The accused petitioner, however, he may be slow in driving the bus, even if, was not in a position to save the accident. Admittedly, the bey has expired due to the rash and negligent driving of the accused petitioner and, therefore, I am fully satisfied with the conclusion arrived at by both the court- below on the basis of evidence on record. I do not think that the reasonings given by the two courts- below are perverse. Therefore, the conviction is maintained but looking to the facts and circumstances of the case that driver was not in a position to save the accident and further this is being the first offence of accused-petitioner which has been taken in March 1976 and accused petitioner has also remained in jail for some time, it would not be proper to resent him to jail. Therefore, I am of the view that the ends of justice would be served, if, the benefit of the probation of Offenders' Act is extended to the accused petitioner and he will be released on probation.
(3.) IN the result, the revision petition of the accused petitioner-Kaushal Singh is partly allowed. The conviction under section 279 and 304-A I. P. C. is maintained but the sentences of fine are set aside and it is hereby that Kaushal Singh be released on probation on his entering into a personal bond in the sum of Rs. 1000/- with surety of the like amount to the satisfaction of the learned Additional Civil Judge and Judicial Magistrate, Udaipur, to appear before him to receive the sentence whenever is called upon to do so during the period of six moths and in the meantime to keep peace and be of good behavior. , The accused petitioner is allowed two months' time to furnish his bail bands. .;