ORDER
Mohd. Yamin, J.
1. Accused petitioner Bhagirath Singh was convicted by learned Additional Munsif and Medical Magistrate No. 2, Hanumangarh Junction for offence under Section 279 and sentenced to three months’ simple imprisonment with a fine of Rs. 200/- and in default to undergo 15 days simple imprisonment and to one year’s simple imprisonment with, a fine of Rs. 500/- and in default to undergo simple imprisonment for one month under Section 304A, IPC by his judgment dated 2-6-1994. He preferred appeal which was dismissed by learned Additional Sessions Judge No. 2, Hanumangarh on 3-2-1999, hence this revision has been filed.
2. I have heard the learned counsel for the petitioner as well as learned Public Prosecutor at length and perused the record.
3. Briefly stated the facts of the case are that Munshi Ram appeared at police station Hanumangarh Junction 11-7-1990 and reported that at about 2.00 p.m. his son Navin Kumar went to picture hall. Navin Kumar went to a tea vender’s shop and asked him to supply tea. On return he crossed the Bus Stand Dabbali. Tanker No. RSC-2328 came rashly and negligently from the side of Hanumangarh and dashed against Navin Kumar. He suffered injuries and died at the spot. The tanker driver was petitioner Bhagirath who ran away with tanker. It were Diwan Chand and Pawah Kumar who saw the accident. Case under Sections 279 and 304A, IPC was registered and investigated. After investigation challan was submitted. When the accused-petitioner was read over the accusation he admitted that he did drive the tanker at the relevant time but he did not cause accident. Prosecution examined as many as eight witnesses. Then the accused-petitioner was examined under Section 313, Cr. P.C. he did not produce any witness in defence. Learned Magistrate heard both the parties and convicted and sentenced the accused petitioner as stated above and on appeal the same was maintained.
4. Learned counsel for the petitioner submitted that the offences under Section 279 and 304A, IPC was not made out against the petitioner as the boy suddenly crossed the road without taking note of approaching vehicle. Therefore, there was every possibility of his dashing against the vehicle without the driver becoming aware of it. According to him the driver in such circumstances cannot save accident however slowly he may be driving and, therefore, a driver cannot be held to be negligent in such a case. He cited AIR 1972 SC 221 : 1972 Cri LJ 49, Mahadeo Hari Lokre V. The State of Maharashtra. He also cited (1990) 2 WLN 599, Om Prakash v. The State of Rajasthan, in which the admitted facts were that a boy aged 6-V2 years was crossing the road from West to East then the truck approached suddenly. It was observed that in a case of crossing the road by a boy all of a sudden, it becomes very difficult for vehicle drivers specially for a heavy vehicle driver to stop the vehicle immediately even though he might have driven it slowly. It is based on Mahadeo Hari’s case (supra). Learned counsel for the petitioner submitted that in view of these citations the trial Court and the appellate Court did not see the glaring feature in this case.
5. I have gone through the evidence on record. PW-1 Munshi Ram, is the only witness of occurrence and is the father of deceased. He admitted that his son was crossing road when tanker came. PW-2 Pawan kumar did not see the accident taking place. However, he has stated that the accident took place in front of his shop and that he stopped the tanker near Kamana. PW-3 Diwan Chand has stated that he did not see the accident and PW-6 Prem Kumar has stated that he saw the dead body of a boy lying on the road. He did not see anything except this. So the version in the FIR that these witnesses saw the accident is not true. PW-2 Pawan Kumar, who is not hostile, has not stated that he saw the accident. He simply said that the speed of tanker was 60-65 km. per hour but there is no basis to depose so. The only witness remains is Munshi Ram PW-1, who is the father of deceased and has admitted that the boy was crossing road. Accused-petitioner did admit the driving of vehicle but his case is that he was not negligent. In this view of the matter the citations relied by the learned counsel for the petitioner apply to this case and the glaring feature of this case is that the pedestrian boy suddenly crossed the road and was hit by vehicle and this glaring feature was overlooked by both the Courts below. There is every possibility of dashing against the vehicle without the driver becoming aware of it. In my view because of this glaring feature injustice appears to have been caused to the petitioner.
6. The settled position of law is that in every case evidence cannot be reappreciated and the High Court will not reappreciate evidence and come to its own conclusion on the same when the evidence has already been appreciated by Magistrate as well as by Sessions Judge in, appeal unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. (See (1999) 1 JT (SC) 456 : 1999 Cri LJ 1443, State of Kerala v. Puttumana Illath jathavedan Namboodiri). In the present case the glaring feature has been pointed out by the learned counsel as discussed above. It was such which caused injustice to the petitioner.
7. Consequently, the revision petition is allowed. Conviction of the accused-petitioner under Sections 279 and 304A, IPC is set aside. He is in custody and shall be released forthwith, if not required in any other case.