NAFIS AHMED Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against the judgment of the II Temporary Civil and Sessions Judge Muzaffar -nagar, dated 19 -7 -19:3, upholding the conviction of the applicant under Section 304A IPC.

(2.) THE case of the prosecution, briefly stated, is that on 10 -12 -1970 at about 8 -00 a.m. motor truck No. USP 3840 driven by Nafis. the applicant, killed Rajendra son of Attar Singh, aged about 8 years near the Kolhu of Balbir Singh in village Pinna under P.S. Kotwali. The further case of the prosecution is that Rajendra with his uncle Bhanwar Singh had gone to the Kolhu of Balbir Singh and while Bhanwar Singh was talking to Peeru carpenter near the Kolhu, Rajendra was standing in front of the Kolhu along with other children. Motor truck No. USP 3840 driven by the applicant came at a fast speed from Muzaffarnagar side and went further killing Rajendra instantaneously. The truck was stopped at about 1 -1/2 miles away. Thereafter a first information report was lodged at the police station at about 11 -15 a.m. after investigation, a charge sheet was submitted against the applicant for the offence under Sections 279 and 304A Indian Penal Code. The accused pleaded not guilty to the charges, and although he admitted the accident in which Rajendra was killed and that truck was driven by him at the time of accident but he denied that the accident was the result of rash and negligent driving. He stated that some children, including Rajendra, were running after a monkey and the deceased suddenly came before the truck. To prove its case, the prosecution examined Bhanwar Singh, Dile Ram Bal Singh and Suraj Bhan as eye witnesses besides the Medical Officer, who conducted the post -mortem examination, the police technician Sri Shaukat Ali Khan and the I.O. Sita Singh.

(3.) LEARNED Counsel for the applicant contended that a person can be convicted for the offence contemplated under Section 304A I.P.C. Only when it was found that he was reckless and negligent in driving the vehicle. He urged that at the most the charge which was established against applicant was only of negligence and of recklessness. On this basis he contended that the conviction of the applicant was bad. He took me through the evidence and tried to urge that a number of boys, including the deceased, were running after a monkey, and the applicant having found them crossing the road tried to save them and in the attempt to save those boys Rajendra came under the truck. The submission made cannot be accepted inasmuch as it has been found as a fact by the courts below that the boy was knocked down on the right side of the road. This shows that the children, including Rajendra had already crossed the road and it was because of the truck going towards the wrong side that the boy was knocked down. This could have happened only because the applicant was negligent in driving the truck on the wrong side. In case the applicant really wanted to avert the accident one fails to understand why he drove the truck towards the right side. In the statement under Section 342 Cr. P.C. it was stated that the boys were going from left to the right. He should have attempted to save those children by driving the vehicle towards the left. As he did not do so and took the truck towards the wrong side, he was guilty of reckless and negligent driving of the vehicle.