STATE Vs. KHETARAM

JUDGEMENT

(1.) THIS is an appeal by the State against the order of acquittal D/- 18th January, 1983 passed by the Judicial Magistrate First Class, Abu Road in a case under section 304a of the Indian Penal Code.

(2.) RESPONDENT Khetaram was prosecuted under Section 304a of the Indian Penal code on a police report which was submitted before the Magistrate on 8th september 1961 for causing the death of one Parveen by rashly and negligently driving Truck No. RJN 237. Subsequently, on 18th October, 1981, a complaint under Section 3/112, 89 and 126 of the Motor Vehicles Act was also filed against the respondent in the court of the Sub-Divisional Magistrate, Mount Abu. In the complaint case under the Motor Vehicles Act, three police officers whose evidence was of formal character, were examined. After their evidence the P. S. I. submitted an application that as the complaint was filed directly by the Station house Officer in the court without naming the eye-witnesses, Tararam and dudaram two eye-witnesses be summoned or he be allowed time to produce them at his own instance. It was also pointed out that the evidence of the aforesaid witnesses had already been recorded in the case under Section 304a of the Indian Penal Code in the court of the Judicial Magistrate, Abu Road. But the learned Sub-Divisional magistrate, Mount Abu rejected the application and acquitted the accused holding that "there is no eye-witness of the incident and the whole case is based on hearsay. "

(3.) IN the case under Section 304a of the Indian Penal Code charge was framed against the accused, 18 witnesses were examined on behalf of the prosecution and statement of the accused under Section 342 of the Code of Criminal Procedure was also recorded. The accused was then called upon to enter upon his defence. In the meanwhile an application was submit on behalf of the accused that in view of the acquittal of the accused in the complaint case under Sections 3/112, 89 and 126 of the Motor Vehicles Act, his trial under Section 304a of the Indian Penal Code was barred under Section 403 (1) of the Code. The learned Judicial Magistrate after hearing the parties on the aforesaid application held that the accused could not be retried under Section 304a of the Indian Penal Code in view ,of his acquittal for the offences under the Motor Vehicles Act and therefore, acquitted him. In support of his conclusion the learned Sub-Divisional Magistrate relied on a decision of the Supreme Court in Pritamsingh v. State of Punjab, (S) AIR 1956 S C 415 and a decision of this Court in Prabhudayal v. Surya Narain, 1962 Raj L W 98. The present appeal has been filed against the above order of acquittal.