The testimony of eye witnesses must be reliable and consistent in order to be relied upon to prove the guilt of an accused person.

Vijay Kumar Vyas, J.

1. The criminal revision has arisen out of order dated 31.08.2005 passed by Additional Sessions Judge No. 2, Bundi in Criminal Appeal No. 58/2000 by which the appeal was partly allowed and the judgment dated 31.10.2000 passed by Additional Chief Judicial Magistrate, Bundi in Regular Criminal Case No. 68/97 was confirmed with respect to conviction but was modified with respect to sentence and the sentence awarded for offence under Section 304-A, IPC of rigorous imprisonment for one year was reduced to six months simple imprisonment. For the offence under Section 279 IPC, three months rigorous imprisonment and for the offences under Sections 3/181 & 146/196 of the M.V. Act one month rigorous imprisonment each, were confirmed.

2. Brief Facts of the case are that on 14-4-1997 at about 9 AM, complainant Babu Lal, (PW-1) gave an oral information to SHO Police Station Kota Dam that in the morning at about 8:30 AM, his nephew Dinesh Kumar, aged about 11 months who moves by crawling only, was playing in front of main gate of his house, a Tractor No. MP 14/G/451 along with trolley came from village side, being driven by appellant Harnath Singh rashly and negligently, gave a hit to the child (Dinesh) who died on the spot. Prahlad Gurjar informed him, whereupon he rushed to the spot and found the child dead. Tractor was also lying there. Incident has been witnessed by mother of the child. On this information, police registered an FIR NO. 54/1997 (Ex.P-1). During investigation site was inspected, photography was conducted, and inquest report of the dead body was prepared. Vehicle was seized. Statements of witnesses were recorded. A notice under Section 133 of the Motor Vehicle Act was given to the owner Dalpat Singh of the vehicle . Postmortem of the dead body was conducted. After due investigation a charge-sheet was filed against the appellant and owner of the vehicle Dalpat Singh.

3. Learned trial court read over the substance of accusations to the appellant Harnath Singh for offence under Sections 279, 304-A IPC, and Sections 3/181, and 146/196 of the M.V. Act. Learned trial court also read over the substance of accusations to co-accused Dalpat Singh for offence under Section 146/196, 5/180 of the M.V. Act. Both of them denied the charges and claimed trial. Prosecution examined 11 witnesses and exhibited 10 documents. Accused were examined under Section 313 Cr. P.C. They stated that evidence adduced by the prosecution is false and further stated that they have been falsely implicated. No evidence of any kind was adduced from defence side. After hearing the parties, learned trial court vide judgment dated 31.10.2000 convicted and sentenced, as stated above, both the accused for all the offences charged with.

4. On appeal filed by both the accused, learned Additional Sessions Judge No. 2, Bundi, after hearing the parties, vide order dated 31.08.2005, upheld the order of conviction passed against both the accused and modified the sentence as stated herein above.

5. Learned counsel for the petitioner submits that as per prosecution, three ladies Sushila, Kanti, and Saroj were eye witnesses of the incident but Kanti has not been examined. Sushila (PW-9) is mother of the deceased and presence of Saroj (PW-11), is doubtful as her name has not been disclosed in the FIR. Sushila (PW-9) has turned hostile. She says in her cross-examination that she reached the spot after one hour of the incident Saroj (PW-11), has admitted in cross-examination that there are two curves in between her house and the place of occurrence. In site memo location of this eye witness has not been shown, Therefore, her narration as eye witness cannot be believed.

6. Learned counsel for the petitioner has submitted in alternate, that if conviction is upheld, the sentence passed against the appellant may be modified to the extent of period of custody, the appellant remained in during the trial and hearing of appeal.

7. Learned Public Prosecutor subm