In a case of rash and negligent driving resulting in death, the prosecution must prove the rash and negligent driving of the accused and the nexus between such driving and the death of the deceased. The failure to examine the Investigating Officer and produce corroborative evidence can prejudice the accused's defense.

P.K.Jain, J.

1. This revision is directed against the judgment dated 6-7-95 passed by Additional Sessions Judge, Gurgaon whereby the conviction of the petitioner for the offences under Sections 279/304-A of the Indian Penal Code, recorded by the Chief Judicial Magistrate, by judgment and order dated 16-11-1993, has been confirmed. The petitioner has been sentenced to undergo rigorous imprisonment for a period of one month and to pay a fine of Rs. 100/- for the offence under Section 279 Indian Penal Code. He has been further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 400/- for the offence under Section 304-A, Indian Penal Code. Both the substantive sentences have been ordered to run concurrently. Amount of fine has been deposited by the petitioner.

2. The case of the prosecution in brief is that on 4-12-1988 at about 1.15 p.m. Avdesh Yadav (PW.2) and Kishore (now deceased) who were co-workers in the same factory, were going on their respective cycles to the market to make certain purchases. When they reached near D.A.V. High School truck No. HYM 575 which was being driven by the petitioner in a rash and negligent manner, came from the front and hit the cycle of Kishore as a result of which he fell down and he alongwith his cycle were crushed under the rear right wheel of the truck. The petitioner and Avdesh Yadav removed Kishore to the hospital where he was declared dead.

3. After completing the investigation a charge sheet for the offence under Sections 279/304-A of the Indian Penal Code was filed in the Court. The petitioner did not plead guilty and claimed trial. The prosecution examined three witnesses in support of its case i.e. Constable Shri Ram PW.1, Avdesh Yadav PW.2 and Doctor S.K. Goel, PW.3. The case of the prosecution was closed by the order of the Court. In his statement under Section 313 Cr.P.C. the petitioner denied the prosecution allegations and pleaded false implication. The trial Court while placing implicit reliance upon the testimony of the prosecution witnesses convicted and sentenced the petitioner as stated above. The appeal of the petitioner against his conviction and sentence did not find favour with the Additional Sessions Judge. Feeling aggrieved, the petitioner has come in revision to this Court.

4. I have heard the learned counsel for the parties and have gone through the record of the trial Court.

5. Shri R.K. Jain, learned counsel for the petitioner while assailing the conviction and sentence of the petitiner has argued that both the Courts below fell in error in accepting the testimony of Avdesh Yadav (PW-2) and to base the conviction of the petitioner solely thereupon. It has been further argued by the learned counsel that the Investigating Officer has not been examined by the prosecution which has prejudiced the petitioner in his defence, and that the testimony of Avdesh Yadav (PW-2) could not have been accepted without further corroboration by the investigating documents produced but not proved on the record.

6. On the other hand learned State counsel has argued that Avdesh Yadav (PW-2) was a natural witness as he had accompanied the deceased and was present at the time of the accident and there is no reason to disbelieve him. It has been further argued that the conviction and sentence of the petitioner have been rightly based on the testimony of the said witness since in such cases public persons do not come forward to support the case of the prosecution. It has been further contended that the Investigating Officer could not be produced since the case of the prosecution was closed by the trial Court itself.

7. I have given my careful thought to the respective arguments advanced at the Bar.

8. From a bare perusal of the testimony of Avdesh Yadav (PW.2), it is evident that it is quite vague and indefinite as regards the investigation carried out by Sub Inspector Ram Chander on the spot of occurrence. According to him, he is an eye witn