P. D. KUDAL, J. - (1.) THIS is a criminal revision against the judgment of the learned Addl. Sessions Judge, Sri Ganganagar, dated February 2, 1972, whereby the conviction of the accused-applicant under sec. 337, 304 (A) and 279, IPC was sustained.
(2.) THE facts of the prosecution case, in brief, are that a report was lodged with the police on 18-5-1969 by Pritam Singh that at about 12. 30 p. m. when he was going to meet his friend Dalip Singh, a truck coming from Hindumalkot and going to Kota had struck down a cyclist resulting in his death. THE driver was driving the truck with a great speed, and as such, necessary suitable action be taken against him. THE accused was challaned and sent for trial before the Munsiff Magistrate, Ganganagar. THE learned Magistrate convicted the accused-applicant under sec. 279, IPC to six months simple imprisonment and a fine of Rs. 500/-; and under sec. 337, IPC six months simple imprisonment and a fine of Rs. 500/ -. He was also convicted under sec. 304-A, IPC to two years rigorous imprisonment and a fine of Rs. 2,000/-, and in default of payment of fine of Rs. 500/- to simple imprisonment for one month, and in default of payment of Rs. 2,000/- to simple imprisonment for six months. All the substantive sentences were ordered to run separately. The prosecution has examined 10 witnesses, and exhibited Ex. P/1 to Ex. P/7. Pw/1 Kanhaiya Nath has stated that the driver did his bast to save the accident. The truck struck against a branch of the tree. The truck was being driven at the speed of 25 to 30 miles an hour. If the driver has taken a deeper turn the truck would have collided against the tree. Pw/2 Pritam Singh is the person who lodged the FIR. He stated that the truck was coming at the speed of 20 to 25 miles an hour. The driver had blown horn from a distance of one furlong or so. This witness was declar-ed hostile by the prosecution. Pw/3 Nandlal, Pw/4 Gura Singh, Pw/5 Balwant Ram, Pw/6 Bhoor Singh, Pw/7 Dr. S. K. Sharma and Pw/8 Arjun Singh are only formal witnesses. Pw/9 Gordhan Singh checked the vehicle on 19-5-1969. There was a free-play in the steering and the hand-brakes were not functioning. The foot-brakes could work only after three or four strokes. Pw/10 Balbeer has also been declared hostile. Balbeer is the person who was sitting in the truck According to this witness, the truck first collided with the tree as a result of which Kanhaiya Nath and others sitting on the truck became unconscious. At that time the truck was going at the speed of 25 to 30 miles an hour. On behalf of the accused-applicant, it was contended that there is no direct evidence regarding the manner in which the collision had taken place. It was also contended that Pritam Singh PW/2, who lodged the FIR has not supported the prosecution case, and he has been declared hostile. . PW/1 Kanhaiya Nath and PW/10 Balbeer have also not supported the prosecution case. It as also contended that according to PW/10 Balbeer the truck collided with the tree first, but the learned trial Court has held that the truck run over the cyclist first, and then collided with tree, on placing reliance on the site-plan, it was also contended that the site-plan is not a substantive piece of evidence, and cannot form the basis of conviction of the accused. It was also contended that the hostile witnesses are altogether not worthy of credence, and their evidence has to be discarded in toto. On behalf of the State, it was contended that the very fact that the accused-applicant, was driving the vehicle without proper brakes, would leave to the irresistible conclusion that he was acting rashly and negligently. It was also contended that on hearing the horn, the cyclist had stopped on one side of the road, and the fact that the truck even then struck him goes to show that the driver was driving the truck in rash and negligent manner.
(3.) THE respective contentions of the learned counsel for the parties have been considered, and the record of the case carefully perused THE prosecution has led no evidence to the effect as to how and in what manner the collision took place. THEre is a material contradiction which has not been reconciled with. PW/10 Balbeer has stated that the truck collided with the tree first, and then when he regained consciousness, he saw that the cyclist has been killed. THE learned trial Court has placed reliance on the site-plan, and has held that the cyclist was run over first, and the truck collided with the tree later on. THE prosecution has produced four important witnesses. PW/1 Kanhaiya Nath does not corroborate the prosecution story. PW/2 Pritam Singh, who has lodged the First Information Report, and PW/10 Balbeer, who was sitting on the truck, have been declared hostile; and PW/9 Gordhan Singh is a Mechanical Inspector, who examined the truck after the accident. According to this witness, the truck had defective brakes. THE foot-brakes could work only after three or four strokes, and the hand brakes were not working. Steering had free-play also. It is on the basis of this evidence that the learned Courts have maintained the conviction of the accused-applicant. THE learned counsel for the accused-applicant has relied on Jagir Singh vs. State (1) wherein it has been held that it is now well settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit that witness altogether and not merely to get rid of a part of his testimony. Reliance was also placed on Sat Kumar vs. State of Haryana (2), wherein It has been held that the site-plan which shows mark No. 1 as the place of occurrence, is in consequence of a statement made during investigation to the ASI by some witness whose name has not been disclosed. Since the ASI had already registered the case under sec. 154, Cr. P. C. , any statement made by witnesses during the course of investigation would be hit by sec. 162 (1), Cr. P. C and inadmissible in evidence except for the purpose of contradiction of the witness when examined in the Court either by the accused or by the prosecution with the leave of Court. A plan prepared in the way done showing the place of occurrence may not be admissible in law, and no reliance can be placed on the place of occurrence, as indicated therein. Reliance was also placed on State vs. Hari Singh (3) wherein it has been held as under: - "the mere fact that a fatal accident took place would not by itself be enough to make the accused liable under sec. 304-A, IPC to bring home an offence under this section, it must be proved beyond reasonable doubt by the prosecution that the death of the victim was the direct result of rashness or negligence on the part of the accused. In order to impose criminal liability on the accused, it must be found as a fact that the collision was entirely or at least mainly due to rashness or negligence on the part of the accused. It is not sufficient if it only found that the accused was driving the vehicle at a fast speed. It is plain from the prosecution evidence itself that the bus was being driven with a normal speed and towards the correct side of the road. It is also manifest from the prosecution evidence that Kumari Indu, who was coming on a bicycle from the northern side of the road, did not wait till the bus passed off and took a turn on her right side of the road. The fact that she was knocked down by the rear wheel of the bus and not by the front wheel or mudguard further indicates that the mishap was not the result of negli- gence or rashness on the part of the driver. It is further plain from the prosecution evidence itself that the driver stopped the bus, after taking it towards the extreme left, at a distance of about 7 ft from the actual place of the accident. When there was no rashness or negligence on the part of the bus driver, for having killed the girl, so far as the use of the road and manner of driving the bus was concerned, the fact that the vehicle of the accused had free-play cannot be taken into consideration in convicting the accus-ed under sec. 304 A, I. P. C. , though it can be made the subject of prosecution under the Motor Vehicles Act, when it is clear that the defect in question was not in any way responsible for the accident. When a person is run over by a bus and is crushed on the spot, the spectators are prejudiced against the driver of the vehicle and in such a case it becomes difficult for the court to ascertain the circumstances of the case. It is possible that the present mishap took place because the girl abruptly paddle from the left side of the road towards its right, without knowing its consequen-ces. The lorry stopped at a distance of about 7 ft. away from the place of the accident. In that circumstance, the accused cannot be held liable for the accident. " ;