SUJAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition is directed against the judgment dated 19.11.1994 passed by learned Additional District and Sessions Judge, Barmer in Criminal Appeal No. 10/1994, whereby the learned appellate court dismissed the appeal filed by the petitioner and upheld the judgment of conviction and order of sentence dated 13.07.1994 passed by the learned Chief Judicial Magistrate, Barmer against the petitioner in Criminal Case No. 220/1986. By the said judgment the learned trial court convicted the accused-petitioner under Section 279, 304-A IPC and sentenced him for the offence under Section 279 IPC to undergo simple imprisonment for two months and to pay a fine of Rs.500/- and in default of payment of fine, further to undergo simple imprisonment for 15 days and for the offence under Section 304-A IPC, the accused-petitioner was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5000/- and in default of payment of fine, further to undergo rigorous imprisonment for six months.

(2.) THE brief facts giving rise to the present revision petition are that complainant Bhura Ram (P.W.5) lodged a written report in the Police Station Barmer alleging therein that on 04.05.1986 in the evening at about 5.00 p.m. petitioner Sujan Singh came driving a mini bus at fast speed and met with an accident in which deceased Antari aged 5 years, who was crossing the road, died. It was further alleged that the bus was stopped by the driver a little further and the complainant and one Kishna Ram ran after the bus from which driver Sujan Singh came out. It was further alleged that the accident was caused due to rash and negligent driving of the petitioner. On the aforesaid report, a First Information Report bearing No. 124/1986 under Section 304-A IPC was registered at the Police Station Barmer and the investigation commenced.

(3.) THE learned Public Prosecutor contended that by seeing the child girl, the driver of the mini bus, i.e. the petitioner, could have stopped the vehicle or could have minimized its speed. Thus, she defended the judgment of the learned trial court. I have considered the rival contentions of both the parties and perused the evidence available on the record. For the offence under Section 279, 304-A IPC, the prosecution has to prove the rash and negligent driving of the vehicle on the part of the driver to prove his guilt beyond reasonable doubt. In the present case, P.W.2 Jhoomri and P.W.8 Meera clearly admitted in their evidence that they came out of their houses after coming into knowledge of the fact of death of the deceased girl Antari and the complainant P.W.5 Bhura Ram did not support the prosecution story and has been declared hostile. Now if come to the evidence of P.W.1 Kishna, it is clear that he also admitted that he came to the place of the incident after hearing the sound of the accident and further he admitted in his cross-examination that the deceased girl herself came under the bus, therefore, the accident took place. In my view, the appreciation of the evidence made by the learned trial court as well as the learned appellate court is not proper. Both the learned courts below have relied upon the evidence of P.W.1 Kishna, P.W.2 Jhoomri and P.W.8 Meera, whereas in my view none of the witnesses have deposed anything about the speed of the mini bus at the time of the incident and further the site inspection memo (Ex.P.5) and site map (Ex.P.6) does not show any rashness and negligence on the part of the petitioner because at the relevant time the vehicle was being driven by the petitioner on the left side of the road, therefore, the testimony of P.W.1 Kishna, P.W.2 Jhoomri and P.W.8 Meera cannot be relied upon about the rash and negligent act of the petitioner so as to endanger the public life and to cause death of Antari by driving the vehicle in rash and negligent manner. Accordingly, the appreciation of the evidence as made by the learned trial court and the learned appellate court being erroneous, the offence under Section 279, 304-A IPC against the petitioner cannot be said to be proved.