IMPORTANT POINT
Motor Accident--Rash and negligent driving--Acquittal--Death of 1½ years child--Court to examine whether parents of child had acted like prudent person and had taken care of child--Parents had not taken care of their child--Accused acquitted.

KANWALJIT SINGH AHLUWALIA, J.

1. The present revision petition has been preferred by Keshav son of gutti. He was named as accused in case FIR No.166 dated 26.5.1991 registered at police Station Forozepur Jhirka under Sections 279/304-A IPC. The FIR was lodged on the basis of statement made by Nasru. He stated that he is a resident of village Niharka and do agriculture work. On 25.5.1991, he along with his wife Majidan and daughter Samsida aged 11/2 years was waiting at Biwa Road for some conveyance to arrive. They had to return to their village after purchasing grocery from the Bazar. They were standing on the side of the road. At about 5.30 P. M. , one private bus came in a rash and negligent manner and without blowing the horn, turned towards the Bus stand. At that time, his daughter Samsida came below the front tyre of the bus. The daughter of the complainant died at the spot. The bus was having registration No. RJD-1405 and name of the driver was Keshav son of Kutti.

2. In the above said FIR, report under Sec.173 Cr. P. C. was submitted. The Court of Judicial Magistrate Ist Class, Ferozepur Jhirka charged the petitioner for offence under Sec.279 and 304-A IPC, for having caused death of Samsida on 25.5.1991 by driving the bus bearing registration no. RJD-1045. The petitioner pleaded not guilty and claimed trial.

3. Nasru appeared as PW1, his wife Majidan as PW2, Constable Sher singh as PW3 and Chhotu Ram, Mechanic of Haryana Roadway appeared as PW4 to prove medical test report Ex. PW4/a. Dr. J. K. Saini PW5 had conducted post-mortem examination of Samsida aged 11/2 years and stated that cause of death was shock and hemorrhage due to injuries suffered by the deceased.

4. The trial Court convicted the appellant for offence under sections 279/304-A IPC. He was sentenced to undergo simple imprisonment for three months under Sec.279 IPC and one year under Sec.304-A IPC. Both the sentences were ordered to run concurrently. The appeal filed by the petitioner was also dismissed by the Court of Additional Sessions Judge, gurgaon who upheld the conviction and maintained the sentence.

5. Counsel for the petitioner has raised following two submissions before me:-

Firstly, it has been contended that from the reading of testimony of PW1 Nasru and PW2 Majidan, it is evident that they have no where stated that petitioner was driving the bus in a rash and negligent manner. Counsel submitted that only allegation levelled by these witnesses is that petitioner was driving the bus at a high speed. Therefore, counsel state that prosecution has failed to prove the necessary ingredients of offence under Sec.279/304-A IPC. Secondly, it has been urged that it has come in the testimony of pw2 Majidan that when she was standing on the road side, waiting for the conveyance, she was carrying a Gathri (luggage tied in a piece of cloth ). It is contended that in cross-examination she stated that she was carrying a Gathri on the head and on the road side she had kept one hen, whose feet were tied. Counsel further state that PW1 has stated that his daughter was under the care of his wife. Referring to the statement of Majidan PW2, it was stated that at that time their relative Mehmoodan met them. At that time girl slipped towards the road and the accident took place. Counsel state that it was the responsibility of the mother to watch that her daughter should remain on the pavement of road and should not go in the middle of the road which was frequented by heavy vehicular traffic. To lend support to this argument, counsel for the petitioner has submitted that prosecution has not examined the draftsman or a Photographer. Therefore, whether the occurrence took place in the middle of the road or side of the road, cannot be comprehended by the court, as the visual observations which are necessary to arrive at the conclusion, have been withheld by the prosecution.

6 In support of the first argument, counsel for the petitioner has relied upon State of Kar