IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. CRIMINAL REVISION NO. 13/1995 (Gumana Ram Vs. State & Ors.) Date : 27.07.2010 HON'BLE MR. C.M. TOTLA, J. Mr. Surendra Surana for the petitioner. Mrs. Chandralekha, P.P.. = = = = Preferring this revision Gumana Ram S/o Dhanna Ram challenges his conviction for the offences of Section 304 A and 279 IPC in Case No. 83/89 before the court of Chief Judicial Magistrate on 18.12.93 and affirmed by learned Sessions Judge rejecting Appeal No. 2/94 on 06.12.94. Sentence awarded for (i) Section 304A IPC is six months SI (ii) 279 IPC – one month SI . Both the sentences were ordered to run concurrently. On 15.2.89 at about 8:30 AM Tractor No. RJM 1107 moving with trolly attached struck Smt. Ganga who died due to injuries sustained. Written FIR Ex.P/1 lodged by PW/ describing that elder mother Smt. Ganga near Gas godown while taking care of goats was sufficient distance from the road but this tractor driven by a beldar coming from Choraha going towards Narayan Niwas struck mother and legs over run and he receiving information instantly reached there were Moti Singh PW/8 and Kamal Singh PW/5 observing incident had taken her from below the tractor. The driver abandoning tractor ran away. Smt. Ganga was rushed to dispensary and she succumbed soon after. Postmortem performed by Medical officer PW/7 report being Ex.P/3, site inspection memo is Ex.P/4 and mechanical examination of tractor is Ex.P/6. Among the witnesses examined PW/5, PW/6, PW/8 and Shyam Singh PW/11 depose of having seen the incident. PW/2 son of deceased and also Prem Singh PW/10 arrived at the scene of incident soon after. In presence of PW/11 and PW/13 inspecting place of occurrence ASI PW/14 prepared memos Ex.P/4 and others. PW/12 mechanically examined seized tractor and prepared report Ex.P/6. Accused revisionist explained of he driving the tractor proceeding on high (ingredient) road reversed and people shouted so he ran away and that he did not incur accident. Both the courts below arrived at conclusions that deceased was at extreme side of the road and tractor and and due to fast and rash and negligently driving the tractor reversely moving struck Smt. Ganga. Learned counsel contends that (i) provenly tractor with trolly was moving towards ingrediently high end of the road – therefore, no question of fast driving – and so conclusions of learned courts below regarding fast driving are wholly erroneous (ii) tractor due to mechanical or any other spontaneous reason not able to proceed further came in reverse – for this driver revisionist because of so happening only he cannot be held to be rash and negligent (iii) questioning incident as is alleged to have occurred, if deceased was on extreme side of road then it shows that even vehicle reversing back was in control of the driver who had no option except to go by side (iv) tractor trolly coming reverse with a speed driver could not have seen the person at back (v) all persons including deceased had every opportunity and time to leave the place when tractor trolly was coming for whatever reason. Argued that even per memo of site inspection, tractor trolly was taken to extreme side. Contends that deceased was 60 years who sitting was or atleast near her were piled up stone pieces. She sustained a fracture on thigh so it is just a matter of chance that death occurred. Argued that appellant is to be acquitted or at best comes only within Section 337 IPC. Lastly submits that in course of proceedings so far remained in custody for about 70-75 days and incident is 21 years ago and conviction 15 years earlier – so just and appropriate is to award sentence only to the extent of undergone. Learned Public Prosecutor states that findings of both the Court below are correct. Carefully looked at the jdugments impugned and gone through the evidence. Incident is of around 8:30 AM in morning. From the evidence it appears that tractor trolly was going on high ingredient road. Deendayal PW/4, Moti Singh PW/8 are eye witnesses named in FIR and Sukhdev PW/2 and Gordhan Ram PW/6 also are eye-witnesses. The incident is of the town near gas godown. So very believable is their presence. All these witnesses PW/2, PW/5, PW/6 and PW/8 in very definite terms state that tractor with trolley was coming fast and while climbing high road, reversedly going towards north of road overrun legs of Smt. Ganga devi- witnesses say that tractor was coming fast from side of ashram on way towards Narayan niwas and tractor reversing driver Guman Ram could not control. All witnesses say as also appears from site inspection memo and deposition of motbirs that the road was wide enough and vehicle coming back in reverse to about 35 ft in little curve till extreme side (northern) of road and then away at 11 ft from the road struck Smt. Ganga. This straightly show that driver totally lost control of the vehicle and that going at a distance of 11 ft from edge of road then struck deceased. Here it is also to be noted that vehicle seized was examined by PW/12 who says that foot breaks were not working. Report Ex.P/7 also mentions that foot as well as hand breaks were not in working order. This being so, person driving the vehicle with trolly had all the reason to know that going on high or even otherwise mis-happening could be. As also surfaces from the evidence that driver was speeding the tractor in order to cross and go through high ingredient road. In this context seems to be the conclusion of courts below that vehicle being driven fastly is proved, then going back to such a distance also proves rashness and negligence. Contention also is of only causing injuries and not death. Per medical evidence fracture of left thigh creating deformity with wound was. Also was a wound 6.5 cm x 0.75 cm bone deep on head and other. Therefore, cannot be said that injuries were simple and were of nature not likely to cause death. Therefore, conviction for the offences of Section 304 A and 279 IPC is correct and need not be interfered. Appears that appellant convicted by appelalte court on 06.12.94 and was released on 23.2.95. Thus, appears to have remained in custody for about 75 days. Incident is of year 1989. But sentence of period already undergone for such an incident shall be on too lower side. Striking balance, for offence of Section 304 A reducing sentence of four months (instead of six months awarded) with fine shall be just and appropraite. Accordingly, conviction for the offence of Section 304A and 279 IPC remaining intact directed is reduction of sentence and imposing also some appropriate fine. Therefore, partly allowing the revision, not interfering and uphelding the convictions, sentenced is reduced as (i) for offence of Section 304A – 4 months simple imprisonment and fine Rs.5000/- fine (ii) Section 279 IPC – one month simple imprisonment. Both the period of sentences is to run concurrently. In default of payment of fine, to undergo one months simple imprisonment. Petitioner to surrender before the trial court forthwith for serving out the remaining sentence. (C.M. TOTLA), J. bjs