This revision petition is filed by the petitioner-applicant

under Section 397 read with Section 401 of the Code of

Criminal Procedure, 1973 (for short ‘Cr.P.C.’) for setting aside

the judgment of conviction and order of sentence passed by

the

Additional

Civil

Judge

and

JMFC,

Bailhongal

in

C.C.No.270/2008 for the offences punishable under Sections

279, 337, 304A of Indian Penal Code (for short ‘IPC’) and

Section 187 of Motor Vehicles Act (for short ‘M.V. Act’) and the

same was up held by the II Additional District and Sessions

Judge, Belagavi (hereinafter referred to as ‘first Appellate

Court’) in Criminal Appeal No.45/2012 dated 02.09.2013.

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2.

Heard the arguments of learned counsel for the

petitioner and the learned High Court Government Pleader.

3.

The ranks of the parties before the Trial Court is

retained for the convenience of the Court.

4.

The case of the prosecution is that the accused

being the driver of the truck bearing No.KA-21/A-5872 drove

his vehicle in rash and negligent manner on 17.02.2008 at

4.30 p.m., near the Horticulture Office on the Bailhongal-

Hosur

road

to

endanger

human

life

dashed

to

the

complainant-PW.3 at his elbow as a result of which his son

was fell down and the lorry was ran over him, thereby the

Police charge sheeted for the aforesaid offences. After

securing the presence of the accused, he has pleaded not

guilty and claims to be tried. Accordingly, the prosecution has

examined 7 witnesses and got marked 10 documents at Ex.P.1

to P.10. After closing the evidence, the statement of the

accused under Section 313 of Cr.P.C was recorded, in which

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the accused not entered into any defense. After hearing the

arguments, the learned Magistrate found the accused guilty

for the aforesaid offences. However sentence has been

passed to undergo for simple imprisonment for one year and

pay fine of Rs.5,000/- for the offence punishable under

Section 304(A) of IPC and no separate sentence has been

passed in respect of Sections 279 and 337 of IPC and Section

187 of M.V. Act. Being aggrieved the same, the accused

preferred appeal before the II Additional Session Judge,

Belagavi which came to be dismissed by confirming the

judgment of conviction and sentence passed by the Trial

Court. Hence the petitioner is before this Court.

5.

The

learned

counsel

for

the

petitioner

has

contended that the judgment of the Trial Court and up held by

the first Appellate Court are erroneous, not considered the

evidence of the witnesses prosecute and not properly

appreciated their evidence, as the eye witnesses PWs-5, 6 and

7 are totally turned hostile, PWs-1 and 2 panch witnesses also

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turned hostile, except the PWs-3 and 4 parents of the

deceased child and I.O., no other witnesses supported the

case. Therefore, the judgment of conviction and sentence not

sustainable in the light of justice, hence he prayed for setting

aside the same.

6.

Alternatively the learned counsel for the petitioner

further contended that if any ground the accused/petitioner

found guilty, the judgment cannot be set aside but the

petitioner shall be imposed the fine amount instead of

imprisonment. Hence, he prayed for allowing the petition.

7.

Per contra, the learned High Court Government

Pleader seriously objected the petition and supported the

judgment of both the Courts below and contended that the

PWs-3 and 4 not only eye witnesses and parents of the

deceased, the PW-3 is also injured who was carrying child by

the side of the road, this accused driven his truck in rash and

negligent manner and dashed to the elbow of the PW-3 due to

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which the child was fell down on the road and the lorry was

ran over him. There is clear case of rash and negligent driving

and causing the death of the deceased who was 3 years child,

therefore the question of setting aside the judgment of

conviction and allowing the petition does not arise. It is not

disputed by the accused has not offered any explanation in the

statement recorded under Section 313 of Cr.P.C. a