SANJEEV PRAKASH SHARMA,J. - (1.) The present revision petition under Section 397 Cr.P.C. read with Section 401 Cr.P.C. is directed against the judgment dated 26.04.2004 passed by the learned Additional Sessions Judge, Jhunjhunu (hereinafter to be referred as 'appellate Court') whereby the judgment dated 24.02.2003 passed by the learned Civil Judge (Jr. Division) and Judicial Magistrate, Ist, Udaipurwati Distt. Jhunjhunu (hereinafter to be referred as 'trial Court) has been upheld. The accused-petitioner has been convicted for the offences under Section 279 and 304A I.P.C. and sentenced to three months Rigorous Imprisonment and fine of Rs. 200/- for offence under Section 279 I.P.C. and sentenced to nine months rigorous imprisonment and fine of Rs. 500/- for offence under Section 304A I.P.C. In default of payment of fine, the accused-petitioner was to further undergo for 7-7 days rigorous imprisonment.
(2.) Learned Counsel for the petitioner submits that factum of having driven vehicle in rash and negligent manner was required to be proved beyond doubt by the prosecution. The petitioner had come out with a specific case that he was driving the vehicle carefully and on account of the cattle (buffalo) having come on the road, the petitioner had to drive the vehicle off the road resulting in overturning of the vehicle and unfortunately the old person deceased namely Moolaram came under the overturned vehicle causing his death. The accused-petitioner's version has been supported by the eye-witness P.W.10 Birjusingh who also has stated that the vehicle was being driven cautiously and even the driver had used all possible careful methods to drive the vehicle without any negligence. The accident occurred on account of buffalo having come before the vehicle and having overturned and the deceased coming under the vehicle. The said version of P.W.10 Birjusingh has not been controverted.
(3.) As regards the statement of P.W.1 Shishupal is concerned, learned Counsel has taken this Court to the statement which is contradictory at several places. In cross-examination P.W.1 namely Shisupal has changed his version twice.;