- (1.) THIS revision petition has been filed against the order dated 2.12.1994 passed by the appellate court whereby the appellate court has dismissed the appeal and confirmed the conviction and sentence of the present petitioner.
(2.) THE short facts of the case are that Kitura Ram, father of the deceased has lodged a written report on 24.10.1987 stating therein that on the day at about 11.30 his son Mahendra, daughter Bhanwari and nephew Hanuman after delivering the food were coming from the society go-down and when they reached in front of the Ladu Ram's house, a joga-jeep driven by the present petitioner has hit Mahendra and he died on the spot. On this information, FIR has been lodged for the offence under Section 304A IPC. After investigation charge-sheet has been filed against the present petitioner. The prosecution examined as many as 4 witnesses in support of its case and also exhibited some documents. The statement of present petitioner was recorded under Section 313, Cr.P.C. No evidence was produced in defence. After hearing both the parties, the learned court below has convicted the present petitioner and sentenced as under:- For the offence : One year's R.I. and a fine of under Section 304A IPC Rs.1000/0 and in default of payment of fine to further six months' R.I. The appeal has also been dismissed. Hence this revision petition. The contention of the present petitioner is that he is not negligent and the jeep has stopped only after 10 or 15 steps. Hence the conclusion of the court below that the present petitioner was driving the vehicle in high speed cannot be sustained . The deceased and two other children, Bhanwari and Hanuman were going on the middle of the road and as the deceased was only 4-1/2 years, he could not keep control over the action after seeing the vehicle and he himself has struck to the vehicle. MTO report suggests that the jeep was not having sufficient brake, in spite of this fact jeep has stopped after 10 steps which suggests that the present petitioner was having full control over the vehicle and he could not be held guilty for rash and negligent driving. His further contention is that the witness Laxman Ram has admitted in his cross-examination that all the children were going on the road. His further contention is that the allegation of the prosecution that the present petitioner hit the child by going on wrong side has not been endorsed by the site plan, as the site plan has not been proved by the investigating officer. The investigating officer has not been produced before the court below and the fact of death of Mahendra by accident is also not proved.
(3.) PER contra, the contention of the learned Public Prosecutor is that there is no infirmity in the impugned order and there is no ground for interference. Heard learned counsel for the petitioner and the learned Pulbic Prosecutor for the State and perused the record. Kistura Ram has lodged the FIR regarding the accident and death of his child and Hanuman Singh and Laxman Ram have also endorsed the fact of accident and death of Mahendra and there is no ambiguity about the fact that Mahendra has died due to accident. The allegation of the prosecution is that the present petitioner was driving the vehicle at a high speed and he lost the control over the vehicle, but PW-3 Hanuman Singh and PW-4 Laxman Ram both have stated in examination-in-chief itself that the vehicle has stopped just 10-15 steps after the accident which suggests that the vehicle was not driven in high speed, coupled with the fact that the MTO has stated that brakes were not of fit condition and further taking note of the fact that all the three children were walking on the road and they were walking on the road hand in hand with each other. Hanuman Singh has stated that he and other two were going on the road and Mahendra was on the west side of the road. It is not in dispute that the road at the incident was only 12 ft. of width and when three children were going on the middle of the road and they lost control of their action when jeep has arrived suddenly, the accident seems to have taken place. Further the contention of the present petitioner is that Laxman Ram is not a natural witness. He has been produced as he is related with the deceased. Site memo has not been proved by the prosecution.;