IMPORTANT POINT
The prosecution must prove beyond reasonable doubt that the accused was driving rashly or negligently; mere assumptions are insufficient for conviction.

JUDGMENT :

The present revision petition under Section 397/401 CrPC has been preferred by the petitioner against the judgment dated 12.08.2002 passed by the learned Additional Sessions Judge, Bhinmal, District Jalore (hereinafter referred to as the ‘Appellate Court’) in Criminal Appeal No. 24/2002 vide which the appeal preferred by the petitioner was dismissed and the judgment dated 30.06.2000 passed by the learned Judicial Magistrate First Class, Sanchore, District Jalore (hereinafter referred to as the ‘Trial Court’) in Criminal Case No. 348/1999 convicting the accused-petitioner for offences under Sections 279, 304A IPC was upheld.

2. Briefly stated, the facts giving rise to the present petition are that on 17.06.1999, the accused, who was the driver of Rajasthan Roadways bus bearing No. RJ-04-P-0234 was parking the bus at Sanchore bus stand when suddenly, a child named Bhanwara came in between a bus which was already parked and the bus being driven by the accused. An accident took place in which the child ultimately died. An FIR was registered against the accused for offences under Sections 279, 304A of IPC. Learned trial Court convicted the accused. The judgment of conviction was upheld by the learned appellate Court. Aggrieved by the judgment of the learned appellate Court and the learned trial Court, the accused-petitioner has preferred the present revision petition.

3. Learned counsel for the petitioner submits that the learned trial Court as well as the learned appellate Court has committed grave illegality while passing the impugned judgments. It is submitted that it is an admitted case of the prosecution that the accident did not take place on a highway, rather it took place at the bus stand where the petitioner was parking the bus. It is further submitted that it is also an admitted position that when the bus was being parked, the deceased came running from behind the bus and was crushed between the two buses, one of which was standstill and the offending vehicle which was being parked near it by the petitioner. Learned counsel further relied upon the statements of PW-6 Ishwar Dan-complainant and the FIR ExP-20 to substantiate his arguments. Lastly, it was prayed that the revision petition may be allowed and the petitioner be acquitted of the offences under Sections 279, 304A IPC.

4. Per contra, learned Public Prosecutor opposed the arguments advanced by the learned counsel for the petitioner. It is submitted that the impugned judgments are well reasoned and do not call for any interference.

5. Heard learned counsel for the parties and perused the material available on record.

6. I have perused the FIR (ExP-20), wherein the complainant-Ishwar Dan has stated that when the driver of the bus-Kan Singh was parking it, suddenly a child came in between the bus being driven by the accused and another bus which was already parked and died due to the accident that occurred.

7. I have also perused the statements of the complainant Ishwar Dan (PW 6) wherein he has stated that:

ÞMªkboj gekjh cl dk cl dks lkbZM esa /khjs&2 yxk jgk Fkk] rc nksuksa clksa ds chp ,d yM+dk vpkud nkSM+dj vk;k ---

ftjg }kjk odhy eqyfte & ;g ckr lgh gS fd yM+dk e`rd vpkud gh vk;k FkkA lkbZM esa cl yxkrs le; ,DlhMsaV gqvk FkkAß

8. Further, the eye-witnesses in the case namely Vardaram (PW 3), Arjun Ram (PW 4) have been declared hostile.

9. The learned trial Court has held that the bus was being parked in the wrong direction and the driver did not take any steps to save the child even though the circumstances were such that the accident could have been prevented. The learned appellate Court, while affirming the judgment of the learned trial court held that the deceased was standing at the side of the already parked bus and did not suddenly came in between the buses. Further, it has also been held that the bus was being parked in the wrong direction.

10. As regards points to be considered for examination of rash and negligent driving, Hon’ble Supreme Court in Ravi