1 S.B. Criminal Leave to Appeal No.101/2009 State of Rajasthan. vs. Doongara Ram. S.B. Criminal Leave to Appeal No.101/2009 State of Rajasthan. vs. Doongara Ram. Date : 30.4.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.SS Sharma, Public Prosecutor. - - - - - Heard learned public prosecutor and perused the record. This petition for leave to appeal has been preferred by the appellant State being aggrieved by the appellate judgment dated 10.10.2006 passed by the Court of Sessions Judge, Jaisalmer in criminal appeal no.21/2005 whereby the appellate court set aside the judgment and order dated 5.7.2005 passed by the Court of Chief Judicial Magistrate, Jaisalmer in criminal case no.143/2003 convicting the respondent under Section 304A IPC and Section 122/177 of the Motor Vehicles Act. As per the prosecution itself, deceased Ramesh, who was traveling on his scooter collided 2 S.B. Criminal Leave to Appeal No.101/2009 State of Rajasthan. vs. Doongara Ram. with stationery tractor trolley which was lying on road. This accident occurred on 8.8.2003 and FIR was lodged and case under Section 304A IPC and Section 122/177 of the Motor Vehicles Act was registered and after investigation, challan was submitted against the accused. The trial court convicted the accused by judgment and order dated 5.7.2005 and sentenced him under the above provisions. The appellate court found that the allegation levelled against the accused was that he put his tractor trolley on the road without there being any reflector and because of that reason, the accident was caused. The appellate court found that from the site map prepared by the witness PW10 Veer Singh, it is fully proved that the tractor trolley was lying on the road in the side and 12 feet road was open. From the prosecution's own document, it was proved that the tractor trolley was not standing so as to obstruct the road and which could not have been noticed by the victim himself. The appellate court was also of the view that the prosecution failed to prove that the tractor trolley has not reflectors even on the trolley because of the reason that the fact is not 3 S.B. Criminal Leave to Appeal No.101/2009 State of Rajasthan. vs. Doongara Ram. stated by PW10 Veer Singh in the site report Ex.P/4 and his statement that there were light red colour on the back side of the tractor is also not the statement recorded in Ex.P/4. Reflectors were not fixed on tractor trolley is not mentioned in the seizure memo Ex.P/6. From Ex.D/4 to D/8, the appellate court reached to the conclusion that the trolley had reflectors in left and right side both. In view of the above reasons, the first appellate court based its conclusion on the basis of the evidence available on record and, therefore, I do not find any illegality in the judgment of the appellate court dated 10.10.2006 acquitting the respondent accused. Otherwise also, Section 304A IPC is as under:- “304A. Causing death by negligence.-Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 4 S.B. Criminal Leave to Appeal No.101/2009 State of Rajasthan. vs. Doongara Ram. A perusal of Section 304A IPC clearly shows that it covers the cases where the death of any person is caused by doing any rash or negligent act. Here in this case, the case may fall in negligent act of the person but in the present facts of the case, it cannot be said that the prosecution proved the fact of the negligence of the act of the accused resulting into the death of the accused. In view of the above, I do not find any reason to grant the leave to appeal. Accordingly, this petition for leave to appeal is hereby dismissed. Consequently, the appeal is also dismissed. (PRAKASH TATIA), J. S.Phophaliya