- (1.) THIS revision petition is directed against the judgment dated 19.11.1994 passed by learned Additional District and Sessions Judge, Barmer in Criminal Appeal No. 10/1994, whereby the learned appellate court dismissed the appeal filed by the petitioner and upheld the judgment of conviction and order of sentence dated 13.07.1994 passed by the learned Chief Judicial Magistrate, Barmer against the petitioner in Criminal Case No. 220/1986. By the said judgment the learned trial court convicted the accused-petitioner under Section 279, 304-A IPC and sentenced him for the offence under Section 279 IPC to undergo simple imprisonment for two months and to pay a fine of Rs.500/- and in default of payment of fine, further to undergo simple imprisonment for 15 days and for the offence under Section 304-A IPC, the accused-petitioner was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5000/- and in default of payment of fine, further to undergo rigorous imprisonment for six months.
(2.) THE brief facts giving rise to the present revision petition are that complainant Bhura Ram (P.W.5) lodged a written report in the Police Station Barmer alleging therein that on 04.05.1986 in the evening at about 5.00 p.m. petitioner Sujan Singh came driving a mini bus at fast speed and met with an accident in which deceased Antari aged 5 years, who was crossing the road, died. It was further alleged that the bus was stopped by the driver a little further and the complainant and one Kishna Ram ran after the bus from which driver Sujan Singh came out. It was further alleged that the accident was caused due to rash and negligent driving of the petitioner. On the aforesaid report, a First Information Report bearing No. 124/1986 under Section 304-A IPC was registered at the Police Station Barmer and the investigation commenced. After usual investigation police filed challan against the petitioner for the offence under Section 279, 304-A IPC in the Court of Chief Judicial Magistrate, Barmer. The learned trial court after trial convicted the petitioner under Section 279, 304-A IPC and sentenced him as narrated above vide judgment and order dated 13.07.1994. The petitioner filed an appeal against the aforesaid judgment and order of the trial court before the learned Additional District and Sessions Judge, Barmer, who dismissed the said appeal vide judgment dated 19.11.1994. Aggrieved by the judgment of conviction and order of sentence passed by the learned trial court which was upheld by the learned appellate court while dismissing the appeal, the petitioner has preferred this revision petition. The learned counsel for the petitioner contended that the learned trial court convicted the petitioner for the offence under Section 279, 304-A IPC on the basis of the statements of P.W.1 Kishna, PW.2 Jhoomri, P.W.5 Bhura Ram and P.W.8 Meera and the learned trial court has erred in appreciating the evidence of all these four witnesses because P.W.2 Jhoomri in her crossexamination admitted the fact that after the accident when she heard about death of Antari, then she reached the place of the incident. Further P.W.5 Bhura ram has been declared hostile witness by the prosecution and he did not support the prosecution story and P.W.8 Meera also admitted in her cross-examination that after the accident she came out of her house, therefore, the evidence of these three witnesses was not properly appreciated by the learned trial court as well as by the learned appellate court and regarding the evidence of P.W.1 Kishna, the learned counsel for the petitioner contended that he also admitted in his crossexamination that after hearing the sound of the accident, he immediately rushed to the place of the incident and further he admitted in his cross-examination that the deceased girl herself came under the mini bus and thereby the accident took place. Thus, the learned counsel for the petitioner submits that the evidence of P.W.1 Kishna also does not support the prosecution story that he saw the accident with his own eyes while the mini bus was being driven by the petitioner in a rash and negligent manner. The learned counsel for the petitioner further contended that as per the site inspection memo (Ex.P.5) and site map (Ex.P.6), the incident took place on the left side of the road where the dead body of the girl was found 3 feet away from the left side of the road, therefore, it cannot be said that at the time of the accident the driver was driving the mini bus in such a manner so as to drive it in wrong side.
(3.) THE learned Public Prosecutor contended that by seeing the child girl, the driver of the mini bus, i.e. the petitioner, could have stopped the vehicle or could have minimized its speed. Thus, she defended the judgment of the learned trial court. I have considered the rival contentions of both the parties and perused the evidence available on the record. For the offence under Section 279, 304-A IPC, the prosecution has to prove the rash and negligent driving of the vehicle on the part of the driver to prove his guilt beyond reasonable doubt. In the present case, P.W.2 Jhoomri and P.W.8 Meera clearly admitted in their evidence that they came out of their houses after coming into knowledge of the fact of death of the deceased girl Antari and the complainant P.W.5 Bhura Ram did not support the prosecution story and has been declared hostile. Now if come to the evidence of P.W.1 Kishna, it is clear that he also admitted that he came to the place of the incident after hearing the sound of the accident and further he admitted in his cross-examination that the deceased girl herself came under the bus, therefore, the accident took place. In my view, the appreciation of the evidence made by the learned trial court as well as the learned appellate court is not proper. Both the learned courts below have relied upon the evidence of P.W.1 Kishna, P.W.2 Jhoomri and P.W.8 Meera, whereas in my view none of the witnesses have deposed anything about the speed of the mini bus at the time of the incident and further the site inspection memo (Ex.P.5) and site map (Ex.P.6) does not show any rashness and negligence on the part of the petitioner because at the relevant time the vehicle was being driven by the petitioner on the left side of the road, therefore, the testimony of P.W.1 Kishna, P.W.2 Jhoomri and P.W.8 Meera cannot be relied upon about the rash and negligent act of the petitioner so as to endanger the public life and to cause death of Antari by driving the vehicle in rash and negligent manner. Accordingly, the appreciation of the evidence as made by the learned trial court and the learned appellate court being erroneous, the offence under Section 279, 304-A IPC against the petitioner cannot be said to be proved. Resultantly, this revision petition is allowed and the judgment of conviction and order of sentence dated 13.07.1994 passed by the learned trial court as well as the judgment of the learned appellate court dated 19.11.1994 are set aside and petitioner Sujan Singh S/o Sher Singh is acquitted of the charges under Section 279 and 304-A IPC. The petitioner is on bail. His bail bonds are hereby discharged.;