Judgment:
O.P. Bishnoi, J.
1. This appeal has been filed by the State against the judgment dated 16-1-1992 delivered by the learned Munsif and Judicial Magistrate, Jalore.
2. According to the prosecution story, the accused-respondent Joita was the driver of the Tractor No. PRQ 6569 and on 19-11-1985 at about 12.30 P.M. near village Mandla, the tragedy occurred. The deceased Tariya, who was sitting on the tractor by the side of the driver on the mud-guard, fell down and was fatally wounded. PW3 Ganesha, PW 4 Prema Ram, PW 5 Ramesh and PW6 Ooka were the passengers in the trolley and at 2.00 P.M., the first information report Ex.P/5 was lodged by PW 4 Prema Ram at Police Station, Ahore. According to the F.I.R., the tractor received a jerk and the deceased Tariya fell on the ground, his head first and died on the spot within about 20 minutes. A case under Sees. 279 and 304-A of the I.P.C. was registered and ultimately the challan was filed against the accused-respondent Joita. He pleaded not guilty.
3. At the trial, as many as seven witnesses were examined by the prosecution. PW1 Khima Ram and PW2 Man Singh were the 'Motbirs' of the 'site-plan'. PW7 Jalal Khan, ASI deposed about the investigation of the case. The other four persons, as pointed out earlier, have been examined as eye-witnesses.
4. Learned trial court believed the story of accident and the factum of death of Tariya. He also believed the fact that the accused-respondent was the driver of the said tractor at the time of accident. However, the Court found that no negligence or rashness on the part of the driver, could be inferred and, hence, the accused-respondent was acquitted. The State has come in appeal.
5. I have heard the learned Public Prosecutor for the State at length and find no reason to draw a different conclusion than the one drawn by the learned trial Court.
6. PW3 Ganesha claims that he was travelling in the trolley and Tariya died due to accident. However, his testimony, although uncross-examined, does not suggest that there was any negligence and rashness on the part of the driver of the vehicle. It appears that he was in the trolley and was unaware as to how the accident took place. He has stated that the accident took place at about 4.30 P.M. whereas, admittedly, the time of the accident was about 12.30 P.M. In his examination-in-chief, he admits that he does not know as to how the deceased fell from the tractor.
7. PW 4 Prema Ram is the person, who was also in the trolley and lodged the F.I.R, Ex.P/5. However, his testimony also is not sufficient to prove the guilt on the part of the driver. He claims that after the fall, the deceased was crushed by the tyre of the trolley. However, there is no allegation in the F.I.R. Ex.P/5 lodged by him to the effect that the deceased was crushed by the tyre of the trolley. According to the F.I.R. Ex.P/5, the tyre did not cross-over the deceased. Strangely enough, this witness has not proved the F.I.R. Ex. P/5, which allegedly was lodged by him. The F.I.R. Ex. P/5 was pever shown to the witness. The witness states that the F.I.R. was lodged at the place of occurrence and it were the police people who wrote the same suo motu. However, according to the prosecution story, PW4 Prema Ram reached at the police station and then lodged the F.I. R. Ex. P/5 at the police station.
8. PW5 Ramesh, similarly, states that the deceased was crushed under the load of the trolley. However, this witness also appears to be unaware about the reason of the accident. He admits that since he was sitting in the trolley, he is not aware as to in what circumstance, the deceased fell from the tractor. Regarding the speed, PW4 Prema Ram and PW 5 Ramesh both admit that they are not aware as to with what speed, the tractor was going. PW 4 Prema Ram and PW5 Ramesh both have deposed to the effect that there was a turn at the place of occurrence. According to PW 4' Prema Ram, the deceased Tariya fell before the turn could be negotiated. PW 5 Ramesh, on the other hand, has stated that after clearing the turn, the deceased Tariya fell from the tractor. According to PW4 Prema Ram, Tariya fell on the left side of the tractor whereas according to Ramesh, he fell on the right side of the tractor.
9. PW 6 Ooka has not been cross-examined, still, his testimony falls much short of proving the guilt of the accused. He simply states that the tractor was going with fast speed and Tariya fell down. He does not speak about the jerk, which was received by the tractor as per the F.I.R. Ex. P/5. From his testimony, the factum of accident may be believed but it does not disclose any negligence or rashness on the part of the driver. What was the speed of the tractor, he has not disclosed.
10. It is apparent that the four eye-witnesses were travelling in the trolley and were unmindful of the real reason of the tragedy. The prosecution was under an obligation to prove that the sole reason for the accident was the rash and negligent driving on the part of the person, who was driving the vehicle. The witnesses have proved that the accident did take place but they have not been able to prove that there was any rashness and negligence on the part of the driver.
11. Consequently; there is no merit in the appeal and the same is hereby dismissed.