ORDER :

The petitioner herein filed this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure to set aside the judgment of conviction and sentence passed by the Principal Civil Judge and J.M.F.C., Tumukuru, in Criminal Case No.244 of 2008, dated 30-7-2010, by convicting the accused petitioner for the offences punishable under Sections 279 and 304A of the Indian Penal Code. By the judgment dated 21-12-2010, the same was confirmed by the Fast Tract Court II, Tumukuru, in Criminal Appeal No.93 of 2010.

2. The ranks of the parties before the trial Court are retained for the sake of brevity.

3. Kyatsandra Police filed a chargesheet against the accused for the offences punishable under Sections 279, 337 and 304A of the Indian Penal Code. The case of the prosecution in brief is that, the deceased, Mohammed Khaleel, and one Mohammed Khalandar P.W.4 were on a trip in the lorry belonging to P.W.1, bearing No.CAA4138. On 16-9-2007 at 7:00 A.M., on the National Highway 4 near Sannappanapalya, the diesel in the said vehicle was exhausted. Therefore, they stopped the vehicle by the side of the road and informed to P.W.1 for bringing the diesel. Accordingly, P.W.1 bought the diesel. After filling the diesel into the tank, they were about to board the lorry and while standing on the side of the lorry, the accused, being the Driver of the lorry, bearing No.KA51 5556, came from Bengaluru to Tumukuru side in a rash and negligent manner, dashed against the lorry of the complainant. Due to which, the deceased, Mohammed Khaleel, and Mohammed Khanlander sustained injuries. Both of them were shifted to Hospital, where Mohammed Khaleel was succumbed to injuries. A complaint was lodged before the Police. Accordingly, the Police investigated the matter and filed a chargesheet for the aforesaid offences. After taking cognizance, the J.M.F.C. recorded a plea of the accused and he pleaded not guilty and claimed to be tried. The prosecution was called upon to lead the evidence. Accordingly, the prosecution examined 7 witnesses as P.W.1 to P.W.7 and got marked 13 documents. The statement of accused under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused has denied all the incriminating evidences appearing against him.

4. After hearing the arguments, the learned J.M.F.C. found guilty for the offences punishable under Sections 279 and 304A of the Indian Penal Code and acquitted the accused for the offence punishable under Section 337 of the Indian Penal Code. The petitioner was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/, in default of fine to undergo simple imprisonment for a period of fifteen-days for the offence punishable under Section 304A of the Indian Penal Code and to undergo simple imprisonment for a period of three-months and to pay a fine of Rs.500/- in default of fine to undergo simple imprisonment for fifteendays for the offences punishable under Section 279 of the Indian Penal Code. Being aggrieved by the same, the accused preferred an appeal before the Fast Track Court II, Tumukuru, under Section 374 of the Code of Criminal Procedure, and after hearing both side, the learned Fast Track Court – II dismissed the appeal on 21-12-2010, by confirming the judgment and conviction passed by the trial Court. Being aggrieved by the same, the petitioner herein preferred this revision petition by challenging the correctness, legality and findings of the sentence recorded by the Courts below on various grounds urged in the petition.

5. Heard the arguments of the learned counsel appearing for the petitioner as well as the learned High Court Government Pleader appearing for the respondent – State and perused the records.

6. Mr. K.N. Ravikumar, the learned counsel for the petitioner, contended during the course of arguments that the trial Court erred in accepting the evidence of P.W.1, who is not the eyewitness. P.Ws.4 and 5 have turned hostile