- (1.) THIS revision petition has been filed by the accused petitioner against the judgment and order dated 20. 8. 2001 passed by the learned Sessions Judge, Balotra in Criminal Appeal No. 2/2000 by which he dismissed the appeal of the accused petitioner and confirmed the judgment and order dated 4. 1. 2000 passed by the learned Addl. Chief Judicial Magistrate, Balotra by which the learned Addl. Chief Judicial Magistrate convicted the accused petitioner for the offence under Sections 279, 304a IPC and 184 and 134/187 of the Motor Vehicles Act (hereinafter referred to as `the MV Act') and sentenced in the following manner:- Name of accu- sed petitioner Convicted u/section Sentence awarded Salim 279 IPc Two months R. I. and to pay a fine of Rs. 250/-, in default of payment of fine to further undergo 15 days S. I. 304-A IPc Six months R. I. and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo one month S. I. 184 of MV Act One month S. I. and to pay a fine of Rs. 250/-, in default of payment of fine to further undergo 15 days S. I. 134/187 of MV Act One month S. I. and to pay a fine of Rs. 250/-, in default of payment of fine to further undergo 15 days S. I. All the above substantive sentences were ordered to run concurrently.
(2.) THE facts giving rise to this revision petition, in short, are as follows:- On 25. 8. 1995, PW3 Bhera Ram Lodged a written report Ex. P/1 with the Police Station Balotra District Barmer stating inter-alia that on that day he alongwith his nephew Nainaram (hereinafter referred to as the deceased) at noon started from his house after taking food towards his field and they were going on the side of the road and at that time, from the side of Balotra, a Truck bearing No. GJ 7/t 8236 came with fast speed and dashed against the deceased from the back side, as a result of which, deceased fell down on the earth and the Truck passed over the body of the deceased and dragged him upto 7-8 feet and, thereafter, deceased died on the spot and this incident was witnesses by PW1 Dalpat Singh and PW2 Beenjraj Singh. On this report, police registered the case and chalked out regular FIR Ex. P/12 and started investigation. During investigation, site plan Ex. P/3 was prepared by PW9 Lala Ram and the post mortem of the body of the deceased was not conducted by PW4 Dr. Dinesh Kumar Charan and the post mortem report is Ex. P/4 and Ex. P/5. After usual investigation, police submitted challan for the offence under Sections 279, 304a IPC, 134/187 and 184 of the MV Act against the accused petitioner in the Court of Addl. Chief Judicial Magistrate, Balotra. On 31. 7. 1976, the contents of the charges for the offence under Sections 279, 304a IPC, 184 and 134/187 of the MV Act were read over and explained to the accused petitioner, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 9 witnesses and got exhibited some documents. THEreafter, statement of the accused petitioner under Section 313 Cr. P. C. was recorded. No evidence was produced in defence by the accused petitioner. After conclusion of trial, the learned Addl. Chief Judicial Magistrate, Balotra through his judgment and order 4. 1. 2000 convicted the accused petitioner for the offence under Sections 279, 304a IPC and 184 and 134/187 of the MV Act and sentenced him in the manner as indicated above holding inter-alia:- 1. That at the time of alleged accident, the accused petitioner was driving the Truck in question and he was driving the Truck rashly and negligently and in coming to that conclusion, the learned Addl. Chief Judicial Magistrate has placed reliance on the statements of PW1 Dalpat Singh and PW2 Beenjraj Singh. 2. That prosecution has proved its case beyond all reasonable doubts against the accused petitioner. Aggrieved from the said judgment and order dated 4. 1. 2000 passed by the learned Addl. Chief Judicial Magistrate, Balotra, the accused petitioner preferred appeal before the learned Sessions Judge, Balotra. THE learned Sessions Judge, Balotra through his judgment and order dated 20. 8. 2001 dismissed the appeal of the accused petitioner and confirmed the judgment and order dated 4. 1. 2000 passed by the learned Addl. Chief Judicial Magistrate, Balotra. Aggrieved from the said judgment and order dated 20. 8. 2001 passed by the learned Sessions Judge Balotra, the accused petitioner has preferred the present revision petition before this Court. In this revision petition, it has been submitted by the learned counsel appearing for the accused petitioner that the findings of the courts below on the point that at the time of alleged accident, the Truck in question was being driven by the present accused petitioner are palpably erroneous one as there is no oral or documentary evidence to prove that fact and for that it has been submitted by the learned counsel for the accused petitioner:- (1) That the name of the accused petitioner has not been mentioned in the FIR. (2) That identification parade for establishing the identity of the accused petitioner was not conducted in the present case. (3) That so-called eye witnesses, namely, PW1 Dalpat Singh and PW2 Beenjraj Singh have for the first time identified the accused petitioner in the Court and such identification has no value in the eye of law. Thus, the basic requirement that at the time of alleged accident, the Truck in question was being driven by the accused petitioner has not been established by the prosecution and in these circumstances, the findings of both the courts below are erroneous one and the same are liable to be set aside. Hence, it was prayed that this appeal be allowed and the accused petitioner be acquitted of the charges framed against him. On the other hand, the learned Public Prosecutor supported the impugned judgments and orders passed by the courts below. I have heard the learned counsel of the accused petitioner and the learned Public Prosecutor and perused the record of the case. To prove the charge for the offence under Section 304-A IPC, the prosecution has to prove the following three points:- (1) the death of the person in question; (2) that the accused caused such death; (3) that such act of the accused was rash or negligent, although it did not amount to culpable homicide.
(3.) SO far as the points No. 1 and 3 are concerned, they are not much in dispute and the learned counsel for the accused petitioner has mainly stressed on point No. 2. There is no dispute in this case that the report Ex. P/1 does not bear the name of the accused petitioner. There is also no dispute in this case that no identification parade for identification of the accused petitioner was got conducted during investigation by the police. So far as the statement of PW3 Bheraram, who lodged the report Ex. P/1 is concerned, he has categorically stated that after the alleged accident, the driver of the Truck in question fled away from the scene. He has further stated that the driver of the Truck in question was not seen by him after the accident. Thus, the statement of PW3 Bheraram is of no value for establishing the identity of the accused petitioner. ;