MOHAMMAD ASHRAF Vs. STATE

JUDGEMENT

(1.) REVISIONIST Mohd. Ashraf has been convicted under Section 279, 337 and 304 (A) IPC and sentenced to R. I. for six months, one year and two years respectively on the three counts all the sentences to run concurrently.

(2.) IN the town of Chandpur in district Bijnor there is a north-south road in the mandi area, The width of the road is about 7 paces and there is a 2 pace wide Kharanja on both sides of it. Att the relevant place to east of this road lies the vacant area used for Sabzi Mandi. To east of this road about 15-20 paces south of a point where another load branches off from it towards west stands a Neem Tree. Under this Neem tree on the edge of this road, the victim Dilip Chand and Om Prakash used to sell cloth on their phar which means a roadside patch of land used for a shop with the wares spread on the ground itself. There is no dispute that on 13-12-75 at about 4.30 p. m. truck no DHG 2558 laden with 105 bags of sugar coming from north collided with Om Prakash and his father Dilip Chand and stopped within three or four paces. Both Om Prakash and Dilip Chand were injured and Om Prakash died on the way to hospital. The prosecution case was that the truck was being driven fast and in a rash manner. The revisionist claimed that he was quite slow, that Om Prakash and Dilip Lhand suddenly came in front of the truck when trying to cross the street, that inspite of his best efforts to stop the vehicle, they g?t injured, and that he was not at fault.

(3.) THERE was a prayer to remand the case for rehearing of the appeal in view of this flaw in the appellate judgment. I do not consider this course advisable when it is already over five years since the occurrence. it is a simple case and the evidence can be scrutinised in this court. The position is clear that the witnesses uniform testimony coupled with the absence of the defence evidence or circumstantial material discredits the defence version altogether and it must be taken that the truck ran over the sitting phar merchants. The only question is whether the driver can be said to have been rash and negligent