Full Judgment
M.B. Sharma, J.
1. This criminal revision is directed against the judgment of leaned Sessions Judge, Alwar who confirmed the conviction and sentence under Section 304A I.P.C. The learned Munsiff and Judicial Magistrate, Behror vide his judgment dated 29th September, 1976 bad convicted the accused-petitioner under Section 304A. I.P.C. & had sentenced him to undergo six months rigorous imprisonment and a one of Rs. 100 and in default of payment of fine to further suffer one month's simple imprisonment. The facts of the case are as follows.
2. Under Police Station Mandal, District Alwar on November 27, 1972, at about 5P.M. work was in progress on National Highway near Sanjahanpur. The deceased Ganga wife of Dhanna was one of the labourer working on the road and she was knocked down by Truck No. RJC 903 which was being driven by the accused petitioner. She died as a result of the injuries. A report of the incident was lodged by Bhupendra Kumar Overseer and a case No. 69/72 under Section 304. I.P.C. was registered in the police station Mandal. After the usual investigation a charge sheet was filed against the accused-petitioner and the learned Magistrate after trial convicted and sentenced him as aforesaid.
3. The main submission of the learned Advocate for the accused-petitioner is that the finding of fact arrived at by the trial court that the accused-petitioner caused the death of Smt. Ganga by driving the truck No. RJC 903 rashly and negligently is vitiated because one set of three witnesses who supported the accused has been disbelieved for no reasons by the two courts. According to him in case there are two sets of witnesses one favouring the accused and the other favouring the prosecution, normally that set which supports the accused should be preferred unless either the witnesses of that set are declared hostile or for reasons to be recorded should not be relied upon. Normally fitting in revision this Court does not disturb the finding of fact arrived at by the courts below. But if the approach of the courts is not correct and the evidence of some of the prosecution witnesses has not been discussed then the finding of fact arrived at in such circumstances cannot bind the court of revision, who of its own will and should appraise the evidence and come to its own conclusion.
4. In the instant case there were two sets of witnesses, the first set consists of Bheruram PW. 4 and Loonanm PW. 5, the other set consists of Mukunlal PW. 6, Adduram PW. 7 and Pukhraj PW. 8. The two courts below have placed reliance on the first set of witnesses and so far as the second set of witnesses is concerned it has been been observed by the two courts that these witnesses were not reliable and won over. A perusual of the statements of second set of witnesses will show that they were neither declared hostile nor permission was sought to cross examine them by the prosecutor who conducted the prosecution in the court. A perusal of the judgment of the learned trial court will show that no reasons have been assigned as to why the trial court reached the conclusion that the witnesses have been won over. All that has been observed by the learned trial court is 'I have gone through their statements with care and caution. After considering the facts and circumstances of the case I have come to the conclusion that these three witnesses have been won over by the accused, and, therefore, their testimonies cannot be said to reliable. The learned Sessions Judge has agreed with this approach of the learned trial court. But in the absence of a request by the Public Prosecutor conducting the prosecution in the trial court to permit him to put leading questions and in the absence of circumstances in the statements themselves which could lead to the conclusion that these witnesses have been won over, the learned trial court as well as the Sessions Judge were not justified in discarding the testimony of second set of witnesses by simply observing that they appear to have been won over by the accused. It may be observed that where in a case there are two sets of witnesses one favouring the accused and the other supporting the prosecution case, that set which favours the accused should be preferred at and rate in such circumstances there is sops for saying that the guilt is not brought home the accused beyond a reasonable doubt.
5. It is not disputed that this truck was also engaged for the contractor at that very road and concrete for the work was being transported in this truck Even in the statements of Bheruram P.W. 4 and Loonaram P.W. 5 it has come that the deceased Smt. Ganga was knocked down by the side of the truck. It has come in the statements of second set of the witnesses that the speed of the truck was slow and all of a sudden Smt. Gangs after unloading of her head load started crossing the road. The accused petitioner who was driver of the said truck did all that was possible even to avoid the accident and Ganga was knocked down by the side of the truck Simply because some body is knocked dawn by a while and at a result thereof dies, it cannot be said that the accident was the result of rash or negligent driving of the truck by its driver. In the facts of this case it cannot be said that the driver was driving the vehicle without due care and caution. Because the two courts have not assigned any specific and convincing reason as to why the witnesses of second set should not be relied upon, the finding of fact arrived at by them is vitiated. On the evidence on record discussed above the prosecution has failed to prove at least beyond a reasonable doubt hit the death of Smt. Ganga was caused by the accused-petitioner by driving the truck rashly or negligently.
6. The conviction of the accused petitioner therefore, cannot stand. The revision-petition the judgments of the learned Sessions Judge as well as of the trial convicting and sentencing the accused-petitioner under Section 304A IPC are set aside. The accussed-petitioner is acquitted of the charge under Section 304A. IPC levelled against him the is on bail and need not surrender His bail binds shall stand discharged. He is set at liberty.