IMPORTANT POINT : Answers given by accused when incriminating circumstances appearing in prosecution evidence are put to him and his statement under Section 342 of J&K Cr.P.C. is recorded, are required to be considered in light of evidence led by prosecution.

JUDGMENT :

Sanjay Dhar, J. – The petitioner has filed the instant criminal revision petition against order dated 11.08.2018 passed by learned Principal Sessions Judge, Srinagar (hereinafter referred to as the appellate court), whereby the learned Sessions Judge has upheld the judgment of conviction/sentence passed by the learned Judicial Magistrate, 1st Class (2nd Additional Munsiff), Srinagar (hereinafter referred to as the trial court), on 20.08.2013, whereby the petitioner has been convicted for offences under Section 279, 304-A RPC and sentenced to imprisonment for a period of one year and a fine of Rs.2000/- in proof of offence under Section 304-A RPC and for a period of two months and a fine of Rs.500/- in proof of offence under Section 279 RPC.

2. The record of the case reveals that on 12.05.2001, the petitioner was driving a Maruti car bearing No.DDU-6258. A minor girl, namely, Rubeena, was knocked down by the said vehicle, as a result of which she received fatal injuries leading to her death. FIR No.85/2001 for offences under Section 279, 304- RPC was registered and the investigation of the case was set into motion. After completing investigation of the case, the charge sheet was laid against the petitioner before the learned trial court. The petitioner was charged for offences under Section 279/304-A RPC and the prosecution was directed to lead evidence in support of the charges. Out of 14 witnesses cited in the challan, the prosecution examined only 06 witnesses, namely, PW-1 Noor Mohammad Malla, PW-2 Mohammad Latief Dar, PW-3 Farooq Ahmad Malik, PW-5 Mohammad Ashiq Ganai, PW-6, Mohammad Ashraf Malik and PW-9, Ali Mohammad Kaloo. After the closure of evidence of the prosecution, statement of the petitioner/accused under Section 342 of the J&K Cr. P. C was recorded. The learned trial court thereafter passed the judgment dated 20.08.2013, whereby the petitioner/accused was convicted.

3. The aforesaid judgment of conviction was challenged by the petitioner by way of an appeal before the learned Principal Sessions Judge, Srinagar. The appeal has been dismissed by the appellate court in terms of the impugned judgment dated 10.08.2018, whereby the judgment of the trial court has been upheld and the appeal has been dismissed.

4. Feeling aggrieved of the impugned judgment of the trial court and the appellate court, the petitioner has filed the instant revision petition.

5. It has been contended by the petitioner that the learned appellate court and the learned trial court have not adopted a proper procedure while passing the impugned judgments as the same are based on incorrect position of law. It has been further contended that the trial court and appellate court have committed patent illegality which has the effect of vitiating the impugned judgments. It is also contended that the learned courts below have ignored the relevant evidence and have misread the material evidence.

6. I have heard learned counsel for the parties and perused the material on record including the record of the trial court.

7. Although many grounds have been urged in the revision petition but the main grounds that have been urged by learned counsel for the petitioner are that the alleged occurrence has not been witnessed by any of the prosecution witnesses, inasmuch as all the witnesses have stated that they have not seen the occurrence. It has also been argued that the learned courts below have placed reliance upon statement of the petitioner/accused recorded under Section 342 of the Cr. P. C and the same could not have been done when there was no evidence on record to prove the prosecution case. It has also been argued that the prosecution has failed to establish rashness or negligence on the part of the petitioner/accused which is gist of offences under Section 279 and 304-A RPC.

8. As already noticed, the prosecution has examined 6 out of 14 witnesses cited in the challan. Out of these 6 witnesses, only one witness, namely, PW-2, Mohammad Latief