Hon'ble SHARMA, J.—The petitioner-convict Pyare Lal was convicted for the offences punishable under Sections 279 and 304A IPC by the learned Additional Chief Judicial Magistrate, Vallabhnagar (Udaipur) vide judgment and order dated 28.1.1995 and was sentenced as under:-

U/S. Sentence Fine In default

279 IPC -- Rs. 1,000/- --

304A IPC R.I. For 1 year Rs. 5,000/- 3 months' SI

It was further ordered that after realisation of entire penalty amount of Rs. 6,000/-, it be paid to Ramlal Kalal, father of deceased child Devilal.

2. Aggrieved against the conviction and sentence, he preferred an appeal, which was dismissed by the learned Additional Sessions Judge, No. 3, Udaipur, vide judgment dated 5.6.1996. Now, petitioner has come up with the present revision petition against that conviction and sentence.

3. The revision petition was admitted and notice was issued to the learned Public Prosecutor for State of Rajasthan and the record of the trial court as well as of the appellate court was called for.

4. The brief facts of the case are that on 19.8.1991 the complainant PW.1 Babu Lal submitted a report Ex. P/1 at Police Station Vallabh Nagar (Udaipur) stating that he was sitting at his shop about 1.30 p.m., at that time, a truck bearing registration No. RSY 9633 came from Bhopal Pura Choraha which was loaded one and was in high speed. When the truck reached at Inayat Ali's shop, there was a turn and since the truck was in high speed, the driver lost its balance and hit Devi Lal S/o Ram Lal Kalal aged about 7 years from the front wheel of the driver side of the truck and crushed him, due to which Devi Lal succumbed to his injuries. Thereafter the truck stopped. It is further stated that the father of the child was also present and when the whereabouts of the driver were asked, it was said that his name is Pyra Lal S/o Tulsi Ram by caste Lodhha resident of Mawli who thereafter ran away.

5. From the above report, a case bearing FIR No. 77/1991 for the offences punishable under Sections 279 and 304-A IPC was registered at Police Station Vallabh Nagar (Udaipur) and investigation was started. During the investigation, the place of occurrence was inspected and a rough site inspection memo Ex. P/2 was prepared. Post-mortem of the dead body was conducted & post mortem report was prepared as Ex. P/3, Seizure memo of truck Ex. P/5, Fard Supardginama of dead body Ex. P/6 were also prepared and statement of witnesses were recorded. Thereafter, charge-sheet for the offences punishable under Sections 279 & 304 A IPC was filed in the competent court against the petitioner accused. The trial was conducted by the trial court. During the trial, the accused was read over the accusation of substance of charge for the offences punishable under Sections 279 and 304-A IPC. During the trial, prosecution examined 9 witnesses. Thereafter, the accused was examined under Section 313 Cr.P.C. wherein he stated that the truck was being driven cautiously and slowly. The child suddenly came in front of the vehicle, therefore, the accident occurred. In defence, the petitioner accused examined DW/1 Shri Mangilal. The trial court after hearing the Assistant Public Prosecutor and learned counsel for the petitioner accused convicted the petitioner for offence punishable under Sections 279 and 304-A IPC as aforesaid.

6. Being aggrieved by the judgment and order of sentence dated 28.1.1995 passed by learned Addl. Chief Judicial Magistrate an appeal was preferred which was heard and decided by the learned Addl. Sessions Judge No. 3, Udaipur who maintained the conviction and sentence passed by the learned trial Court. Hence, this revision petition.

7. Learned counsel for the petitioner submitted that the boy came on the road all of sudden and he died due to his own mistake. He further submitted that the vehicle was stopped on the spot. It did not move ahead which shows that there was no rash and negligent act on the part of the driver. He further submitted that the prosecution witnesses

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