C.M. LODHA, C.J.—Petitioner Bhagwana was tried for an offence under sec. 304-A, I.P.C. for allegedly causing the death of Mst. Mangli by driving truck No. RJL 8384 rashly and negligently on Bagra-Jalore road on July 26, 1972, at about 11 a.m. He denied that he was driving the vehicle in question and thus denied having committed the offence. The learned Judicial Magistrate, Jalore, by his judgment dated August 4, 1975, convicted the accused for the aforesaid offence and sentenced him to one years simple imprisonment. The accused filed appeal, which was dismissed by the Additional Sessions Judge, Jalore, on September 28, 1976. Hence, he has filed this revision-petition.

2. The facts borne out on the record, and held to be proved by the courts below, are that it was the accused Bhagwana, who was driving the vehicle in question at the relevant time by which the death of Mangli was caused. It is clear from the evidence of the main witness in the case, Jamuna, P.W. 3, who is the sister of the deceased Mst. Mangli, that she along with the deceased, her sister Mst. Moti and her brother Achla, was coming from their field with bundles of grass on their heads and when they reached near Tashkhana-ki-Bavari, (a step well), they took down the bundles of grass from their heads and when the witness went to the well across the road for drinking water, a few moments thereafter came the deceased Mst. Mangli behind her and while she was drinking water, she saw that her sister Mst. Mangli had fallen down on account of being struck by a truck. The other witnesses have corroborated her testimony in material particulars. The learned Additional Sessions Judge has come to the conclusion that the truck was moving at a high speed even though there was a caution board to drive slow about 50 ft. behind the spot where the occurrence had taken place. He has further found that the truck was moving on the wrong side of the road, i.e. on the right edge of the road and also that the driver did not blow the horn and was driving with defective brakes. On these premises, the learned Additional Sessions Judge concurred in the finding of the trial court that the driver was driving the truck rashly and negligently.

3. The point for consideration before me is whether in the fact and circumstances of the case an inference of rashness or negligence on the part of the driver can be drawn. So far as the speed of the truck is concerned, it is in evidence that the truck stopped at a distance of 30 ft. from the place of accident. No doubt, the witnesses, who are villagers, have made a sweeping statement that the truck was being driven fast, but that is neither here nor there. The fact that the truck stopped only at a distance of 30 ft. from the place of the accident goes to show that the truck was not being driven at a very high speed, but it was at a normal speed on an open road where there was neither any bus-stand, nor habitation. So far as the parking brake is concerned, it is common knowledge that parking brake is not used for stopping the vehicle when it is in . speed. Thus the fact that parking brake of the truck was not in order, is not material. However, so far as the foot brake is concerned, the evidence of P.W. 8 K.S. Sakaria is that it was working, though in emergency it had to be applied twice. It appears that the driver had applied the brakes and that is why the truck stopped within 30 ft. of the place of accident. This fact also shows that the brakes were in order. The findings, therefore, that the brakes were not in order and that the truck was going at a very high speed do not follow from the premises on which they are based.

4. The learned Additional Sessions Judge has accepted the evidence of. the prosecution witnesses in toto on the ground that they had no enmity with the accused. The question of enmity hardly arises in such cases. In the matter of accidents, it is usually a tendency of each party to throw the blame on the other, but the court has to see whet

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