STATE OF RAJASTHAN Vs. GURUBUX SINGH

JUDGEMENT

(1.) THIS appeal has been filed by the State after obtaining leave to appeal under Section 378(3) of the Code of Criminal Procedure. It is directed against the judgment dated 1 -3 1977 passed by the Munsif and First Class, Magistrate, Jaitaran, in criminal original case No. 24 of 1972 In the aforesaid case, the respondent Gurbux Singh was charged with offences under Sections 304A and 279 I.P.C. and Sections 87/112 of and 89/119 of the Motor Vehicles Act. The Judicial Magistrate, by her judgment dated 1 -3 -1977, while acquitting the respondent of the offences under Sections 304A and 279 of the Indian Penal Code, has convicted him of the offences under Section 87/112 and 89/112 of the Motor Vehicles Act and has sentenced him to a fine of Rs. 100/ - on each count and in default of payment of fine, to undergo simple imprisonment for a period of ten days.

(2.) THE case of the prosecution is that on 23 8 -1971, at 5.00 p.m , the respondent was the driver of truck No. PUL 4265 and he was driving the said truck while it was going from Bar to Beawar. At Sendra, the truck of the respondent hit against a child named Rameshwar, aged 3 to 4 years, and after he was hit by the truck, the child was thrown away and he fell on the road and sustained injuries on account of which he died on 23 -8 -1971 at 9.00 p.m. at Amrit Kaur Hospital, Beawar. After the child had been hit, the respondent did not stop the truck and in order to prevent him from escaping with the truck, the gates of the railway level crossing situated at a distance of about 1 -1/2 miles from the scene of the incident were got closed and the truck was chased by a jeep and the respondent was apprehended with the truck. The written report (Ex. P 1) about the incident was made by Mangilal (PW 1), the grandfather of the deceased, and it was handed over to Baghsingh at (PW 10), Headconstable -in -charge of police outpost, Sendra, on 23 -8 -1971 at 6.15 p.m. and on the basis of the said report, the first information report was recorded at police station, Raipur, on 23 -8 -1971 at 8.15 p.m. and a case under Sections 279 and 318, IPC, was registered. After the death of Ramswarup, the case was altered to one under Section 304A; IPC. Baghsingh conducted the investigation and prepared the memo of site inspection, Ex. P 2, and the site -plan Ex. P 3. He seized the bloodstained bushirt of the deceased vide seizure memo Ex. P 4. Ramswarup was taken in injured condition to Amrit Kaur Hospital at Beawar where his injuries were examined by Dr. Brij Behari Sharma (PW 8) on 23 -1 -1971 at 7 00 p.m. vide injury report Ex. P 5. Ramswarup died at Amrit Kaur Hospital at 9.25 p.m. on 23 -8 -1971 and the post mortem examination of the deadbody was conducted by Dr. Brij Behari Sharma on August 28, 1971 at 9.00 a.m. vide postmortem report, Ex. P 6. According to the post -mortem report, the deccased had five injuries on his person out of which two were lacerated wounds, one on the chin below the left angle of month and the other on the left occipital parietal region and there was ecchymosis of the left eye -lid; swelling on left temporal regtion and laceration of the mucosa of the left wall of the nose. According to the medical officer, death was caused on account of congestion, intracraniel heamorrhage, compression and shock. Truck No. PUL 4065 was seized vide memo Ex. P 8. The mechanical inspection of the truck was conducted by Narainsingh (PW 9) on 24 -8 -1971 vide report Ex P 7. After completing the investigation, the police filed a charge sheet against the respondent in the court of Judicial Magistrate, First Class, Jaitaran and the respondent was charged with offences referred to above. The respondent pleaded not guilty and claimed to be tried.

(3.) THE respondent, in his statement recorded under Section 313 Cr. PC, denied the prosecution case and has stated that he was driving the vehicle at a speed of 20 to 25 miles per hour and that a vehicle was coming from the opposite direction and that he saw the child from a distance of ten steps and that he swerved the vehicle and tried to avoid the child. He has also stated that it was not possible to apply the brakes and in view of the shops and the poles, the vehicle could not be turned more on the side. In support of his defence, the respondent examined Dr. D.R Bhandari (DW 1) who has deposed that the injuries that ware found on the person of the deceased, as per the injury report Ex. P 6, could not be caused as a result of a direct impact of the wheel of the truck and that it was more possible that the said injuries were caused as a result of a fall.