IMPORTANT POINT
The prosecution must prove charges of criminal negligence or rashness beyond reasonable doubt, and the principle of res ipsa loquitur cannot be invoked in the absence of conclusive evidence.

ORDER :

1. The petitioner impugns judgment dated 18.11.2002 of the appellate court whereby the appellate court has dismissed appeal of the revisionist (hereinafter referred to as ‘accused’) which relates to the judgment of conviction and order of sentence dated 14.03.2000 passed by the trial court.

2. On 12.06.1994 at about 8:00 a.m. a jeep no. RRT 7312 being driven by the accused Shambhoo Lal hit a 7 years child, who was allegedly standing on roadside. The accident resulted into death of the child. The accused was charge sheeted and tried.

3. The trial court held that the accused drove the vehicle at a high speed as well as in a rash and negligent manner and it was on that account that the accident took place. The accused was convicted for offences under Section 279 and 304-A of the IPC and sentenced to various terms of imprisonment.

4. The accused challenged his conviction and sentence before the appellate court which confirmed conviction and sentence.

5. Both the trial court and the appellate court held the accused guilty after holding that the accused was driving the jeep at a high speed as well as rashly and negligently. Both the courts pressed into aid the doctrine of “res-ipsa-loquitur” to hold the accused guilty. This revision is directed against the said judgment passed by the appellate court.

6. Mr. Rajeev Bishnoi appearing on behalf of the accused has drawn my attention to the fact that the trial court applied principle of “res-ipsa-loquitur” which, according to learned counsel, cannot be applied in view of ocular evidence available on record. On merits, it is contended that prosecution has failed to prove beyond reasonable doubt that accused was guilty of said offences and both trial court as well as appellate court have erred in not appreciating the evidence in right perspective.

7. Contrary to it, learned Public Prosecutor for the State supported the judgments of courts below and submitted that there is no infirmity in the view taken by the trial court as also by the appellate court. He submits that the prosecution has proved beyond reasonable doubt that accident took place on account of act of the accused and his vehicle was involved in the accident. He further submits that accused has not been able to contradict the testimony of the witnesses. He submits that there are no reasons to interfere with the impugned judgment hence revision petition is liable to be dismissed.

8. The point that arises for consideration is whether the conviction and sentence passed against the accused are sustainable.

9. I have examined the record and heard the learned counsel for the parties.

10. In the instant case, the fact of the accused driving the involved jeep is not disputed. The accused himself admitted in his statement under Section 313 of the Cr.P.C. that he had stopped at the spot after the collision.

11. While opening his arguments, learned counsel for the accused pointed out that so called both the Policemen eye-witnesses i.e. Barkat Khan (PW-1) and Ambalal (PW-4) were not present at the time of the accident. The rationale and justification for their presence have not been proved beyond reasonable doubt. They are bogus witnesses and their testimony was neither credible nor trustworthy, therefore, their testimony should be discarded.

12. In support of the case, the prosecution has relied upon testimony of four eye-witnesses, out of which Barkat Khan (PW-1) and Ambalal (PW-4) were Police personnel respectively. Remaining two eye-witnesses were father and mother of the deceased. Both Barkat Khan and Ambalal were allegedly on their way to execute a warrant and they were standing near the location of the incident i.e. at the bus stand.

13. Barkat Khan (PW-1) in his testimony has stated that the execution of the warrant was not his responsibility but it was the duty of his colleague Ambalal; that anyone could accompany to ensure proper service of warrant; that they were standing at the bus stand 10-15 minutes before the incidence. On the con