The court considered the contributory negligence of the victim and the reformatory trend in penology in deciding to release the petitioner on probation.

Nirmal Singh, J. (Oral) - The petitioner was prosecuted under Sections 304-A and 279 of the Indian Penal Code and was sentenced to undergo RI for one year under Section 304-A Indian Penal Code and six months under section 279 of the Indian Penal Code. Both the sentences were ordered to run concurrently.

2. The facts of the case are that on 9.11.1991 at about 3.45 P.M. the petitioner was driving truck No. HR 31-2875 in the area of village Masana and in front of the truck, Brij Lal and his partner Inder Pal Singh deceased were carrying their that tent goods in tractor-trolley No. HRK-7935, which was being driven by Shri Sadha Singh from Shahbad to Masana. The trolley was loaded with tent and other materials. Inder Pal Singh and Brij Lal were sitting in the trolley over the tent. When the tractor-trolley reached near the Kalsi Factory, Shahbad, the truck driven by the petitioner came from behind from Shahbad which was driven in rash and negligent manner, hit the tractor-trolley and as a result of which Inder Pal Singh fell down from the trolley and died. It is further the case of the prosecution that the petitioner ran away from the spot along with the truck but subsequently he was arrested.

3. After the completion of the investigation, the challan was presented before the Ilaka Magistrate and was charge-sheeted under Sections 279 and 304-A of the Indian Penal Code, to which he pleaded not guilty and claimed trial.

4. To prove its case against the petitioner, the prosecution examined Brij Lal (PW 1) who is the eye-witness of the occurrence, Bhagat Singh (PW2) who identified the dead body of Inder Pal, Sadha Singh (PW3) who is the driver of the tractor-trolley, Ashok Kumar (PW4) who is the owner of the truck, ASI Raj Kumar (PW5) who is the investigator of the case, Head Constable Chander Mohan (PW6) is the formal witness is whose presence the truck as well as the driving licence were taken into possession, Head Constable Maan Singh (PW7) who has mechanically tested the truck and the tractor-trolley, Inspector Bir Singh (PW8) who prepared report under Section 173 Criminal Procedure Code, Surinder Kumar (PW8) who deposed about the rash and negligent driving of the truck by the petitioner and Balak Ram (PW9) who took the photographs of the place of occurrence.

5. When the petitioner was examined under Section 313 of the Code of Criminal Procedure to explain the incriminating circumstances appearing in the prosecution evidence, he denied simplicitor and alleged false implication. When the petitioner was called to lead evidence in defence, he has not examined any witness.

6. After appreciating the evidence on record, learned Judicial Magistrate 1st Class, Kurukshetra convicted and sentenced the petitioner as stated in paragraph 1 of the judgment.

7. Aggrieved by the order of the learned Judicial Magistrate 1st Class, the petitioner filed an appeal before the Additional Sessions Judge, Kurukshetra. The same was dismissed.

8. Aggrieved by the orders of the Courts below, the present revision has been preferred.

9. Mr. R.N. Lohan, learned counsel for the petitioner, has not challenged the conviction on merits but he submitted on the quantum of sentence. He contended that petitioner is not a previous convict and he is the only bread- winner of his family. He contended that the accident has not occurred due to the negligence of the petitioner but this accident has occurred due to the contributory negligence. He further submitted that learned trial Court has declined the benefit of probation by relying upon the judgment of the Supreme Court in Rattan Singh v. State of Punjab, AIR 1980 Supreme Court 84. He submitted that in this authority, their Lordships have not held that under Section 304-A Indian Penal Code there will be a bar for releasing the convict on probation. He contended that facts of that case were totally different than the present case.

10. Mr. K.S. Chauhan, learned Deputy Advocate General appearing for the State has opp