HARI PRASAD Vs. STATE

JUDGEMENT

(1.) This revision under Sec. 397 read with Sec. 401 Cr. P. C. has been filed against the appellate judgment of the learned Sessions judge, Churu dated May 13, 1980 where by the learned first appellate court has maintained the conviction of the accused petitioner under section 304 A I. P. C. recorded by fine learned Chief Judicial Magistrate, Churu vide his judgement dated March 23, 1979. However, the sentence of six months rigorous imprisonment and a fine of Rs, 500.00imposed on the accused petitioner by the learned Chief judicial Magistrate, Churu was reduced to three months rigorous imprisonment together with a fine, of Rs 100.00. It is against this order that this revision has been preferred.

(2.) The facts necessary to be noticed for the disposal of this revision briefly stated are that the accused petitioner was found driving a car taxi bearing No, RJT 121 rashly as well as negligently. His taxi was hired to carry a dead body from Jaipur to Hanumangarh. When the taxi was passing by the town of Snrdarshahar, it knocked down a boy aged 8 years who died instantaneously. The car was being driven so rashly that it stopped at a distance of 40-50 yards from the place of occurrence after being taken into the kaccha. The accused took, the car to the police station, because the villagers started collecting on the place of occurrence and so fearing an attack on him by the villagers he went and reported the matter to the police The police reached the place of occurrence and the body of the boy was recovered and removed from that place and his postmortem was conducted and after investigation the challan was filed in the court of learned Chief judicial Magistrate, Churu, who after trial convicted and sentenced him as aforesaid against which the appeal was filed and the same was decided by the learned Sessions judge as aforesaid.

(3.) Mr. S. K. Goyal appearing for the petitioner has submitted that it is actually a case of substitution of the accused. The car taxi was being driven by a Sardar, but this accused who was a co-passenger, has been falsely implicated in this criminal case. He has not challenged the fact that the car knocked down a boy who died instantaneously He has also not challenged the finding of the learned lower court that the car was being driven rashly and negligently which is clear from the fact that it stopped at a distance of 40-50 yards from the place where it knocked down a boy, as is clear from the site plan Ex. P. 4. Both the courts below have recorded a concurrent finding that this was the accused who was driving the car taxi at the relevant time. Mr. Goyal took me through the statements the witnesses and requested me to re-appreciate the evidence. Probably this is not the scope of the revision. However, he has submitted that both the courts mis-directed themselves in so far as they have misread the evidence and mis-interpreted it and that has caused failure of justice and so the powers of this court be exercised to grant acquittal to the accused. In view of the submission made by MR. Goyal. I have critically examined the statements of the witnesses recorded during trial. The first three witnesses have of course stated before the trial court that some sardar was driving the car. They have not disclosed the name as to who was that sardar. These very witnesses in their earlier statements in police have stated that this very Hari Prasad was driving the car from whom they hired the taxi and it was he who was driving it from Jaipur, but they have disowned those statements without ascribing any reason and so their court statements cannot be relied. I, therefore, feel that the learned lower court was perfectly justified in holding that the accused was driving the car at the relevant time on the basis of the statements of P.W.. 6 Rewat Singh who is an eye witness of the occurrence and he has categorically stated that the car at the relevant time was being driven by this very accused when he identified at the relevant time, He identified him in the court also and he has categorically stated that the car was being driven by this accused who is present in the court. He was not asked a single question in cross-examination about it. He is the sole independent eye witness who has been examined by the prosecution in addition to those three persons who were the occupants of the car. When no cross-examination has been made with this witness about these assertions made by him in his examination in chief, it has to be presumed that the defence was not in a position to challenge the testimony of this witness.