1. The present Revision is directed against the judgment and order of conviction, passed by the learned Judicial Magistrate, First Class, Sailu, dated 3.7.1999 in Summary Criminal Case No. 210 of 1997, by which the applicant was convicted for the offence punishable under Section 304A of the Indian Penal Code and was directed to suffer simple imprisonment for three months and to pay a fine of Rs.2,000/-, in default to suffer simple imprisonment for 45 days, together with the judgment and order, passed by the learned 3rd Additional Sessions Judge, Parbhani, dated 2.3.2002 in Criminal Appeal No. 37 of 1999, whereby the learned lower appellate court dismissed the appeal filed by the applicant and thereby confirmed the judgment and order of conviction.

2. Briefly stated, the prosecution case is as under:

On 29.11.1997 the applicant was found to be driving a tempo trax bearing registration no. MH-22/8207. According to the prosecution, the applicant was driving the said jeep negligently and gave a dash to Sachin Sanjay Jadhav, aged about 3 years, resident of Vidyanagar, Sailu, resulting into his death.

3. First information report was immediately lodged by Sheshrao Ashruba Raut (PW 1). The first information report was disclosing commission of a cognizable offence, therefore, the police station authorities at Sailu, District Parbhani registered a crime against the present applicant vide Crime No.174 of 1997 for the offence punishable under Section 304A of the Indian Penal Code.

4. After completion of the usual investigation, the investigating officer found that sufficient material is collected against the present applicant for trial. Hence, he filed charge sheet against him in the court of law.

The case was registered in the court of Judicial Magistrate, First Class, Sailu vide Summary Criminal Case No. 210 of 1997.

Charge was framed against the applicant by the learned Magistrate that on 29.11.1997 at about 11.45 a.m. the applicant by driving the jeep bearing registration No. MH-22/8207 rashly and negligently caused death of Sachin Jadhav, aged about 3 years and thereby committed an offence punishable under Section 304-A of the Indian Penal Code.

5. The applicant denied the charge and claimed for his trial.

6. In order to bring home the guilt of the applicant, the prosecution examined six witnesses. The statement of the applicant was recorded under Section 313 of the Code of Criminal Procedure and his defence was of total denial and false implication.

7. On evaluation of the prosecution evidence, the learned Magistrate found the applicant guilty, and therefore, convicted him, as observed in the opening paragraph of this judgment and the appeal filed by the appellant was also dismissed.

8. I have heard Shri Vijay Sharma, learned counsel for the applicant and Shri V.P.Kadam, learned Additional Public Prosecutor for the respondent/State. With their able assistance, I have gone through the record and proceedings.

9. Learned counsel for the applicant vehemently submitted that the prosecution has utterly failed to adduce cogent evidence to connect the applicant to the incident in question. He submitted that serious prejudice is caused to the applicant, since the investigating officer failed to step in the witness box. He further submitted that one Santosh Shahane, who was accompanying the applicant at the relevant time in jeep is not examined by the prosecution, and therefore, an adverse inference has to be drawn against the prosecution case. He submitted that there is no evidence to show that the applicant was rash or negligent at the relevant time. The unfortunate death of Sachin, according to him, was pure accident, and therefore, he submitted that both the courts below committed mistake in convicting him.

Learned counsel for the applicant placed reliance on the following reported decisions of the Hon'ble Apex Court.

(1) AIR 1972 SC 221 - [Mahadeo Hari Lokre vs The State of Maharashtra]

(2) AIR 1973 SC 165 - [Nageshwar Sh.Krishna Ghobe vs Stat