JUDGMENT
K.K. Verma, J.
1. The petitioner, a truck-driver, was convicted and sentenced by a Judicial Magistrate, First Class, Sheopur Kalan in Regular Criminal Case No. 61/1979 on 17-5-1982 for one year’s rigorous imprisonment and a fine of Rs. 250/- and in default 3 months” rigorious imprisonment under Section 304A, I.P.C., and a fine of Rs. 250/- under Section 279, I.P.C. The petitioner’s appeal (No. 120/82) was dismissed in loto by the Additional Sessions Judge, Sheopur Kalan on 2 4-83. The petitioner has therefore come up in revision against the appellate judgment.
2. The following concurrent findings of the Courts below were not challenged before me. Late in the afternoon on 14-11-1978, a truck (No. 6607 M.P.D.) driven by the petitioner was involved in an accident on the outskirts of the village of Nanawad on a public road, near a culvert of a canal, resulting in the death of P.W. 2, Gangadhar’s son Pappu (aged 8 years). It is not in dispute that after the accident, the truck was halted and the petitioner Nannekhan (DW 2), the truck-cleaner Azad (DW 1) and the labourers on the truck ran away.
3. Here, the petitioner assails the finding that he drove the truck negligently.
4. Brijmohan (PW 3), the first-informant and the sole eye-witness, found favour with the Courts below with his version that the truck, coming from the north of a west-east running canal at about 4 p.m., crossed its culvert in speed came south towards the village of Nanawad, and then at about 1 furlong from him (Brijmohan) knocked down and crushed Pappu under the right-hand side of the front wheel of the truck.
5. Brijmohan (PW. 3) has withstood cross-examination very well.
6. The aforementioned independent testimony which highlights the negligent driving in hitting a boy visible on the road finds corroboration in the F.I.R. (Ex. P-5) lodged by Brijmohan at 5.15 p.m. at the Sheopur-Kalan P.S., and the unimpeachable evidence of Dr. S.A. Ahmad (P.W. 4) who has deposed that Pappu’s both the thighs, the whole of abdomen had been crushed and the visceral organs ruptured, and that the intestines had come out.
7. It is evident that Brijmohan’s testimony could be discarded on its being successfully rebutted or displaced by the defence version.
8. The truck-cleaner Azad (DW 1) and petitioner Nannekhan (D.W. 2) gave the following defence-version. The truck driven slowly,’ crossed the culvert. Then the boy started running from over the culvert, from the right hand side of the driver, and attempted to cross the road. The driver applied the foot brake, but it did not work. Then he veered the truck towards his right but finding that the truck was in danger of running down the road into a pit, he veered the truck towards his left. They say that the boy dashed against the rear of the body of the truck on the right-hand side of the driver.
9. Now, the boy had crushing injuries on his thighs and the abdomen. He had no injuries on his chest, face and head. Thus, the prosecution-version that a wheel crushed him is consistent with the medical evidence, while the defence-version that the boy dashed against a moving truck’s rear does not fit in with the medical evidence. The proved fact that the truck was brought to a halt near the place where the dead body was found exposed the falsehood of the defence-version that the foot brake had failed to work when the driver applied it. Besides, the hollowness of the defence-version is further exposed by its omission to show whether the boy dashed against the truck while it was first veered towards the right or when, later on it was, veered to the left.
10. I, therefore, see no reason to differ from the conclusion reached by the Courts below that the petitioner’s negligent driving of the truck, on a public place that caused the accident resulting in Pappu’s death. The proved facts bring home the charges under Sections 279 and 304A, I.P.C.
11. The petitioner’s learned Counsel urged that the petitioner could not have been sentenced under Section 279,1.P.C. separately after he had been found guilty under S, 304A, I.P.C. This submission is accepted because some of the facts found as ingredients of the offence under Section 304A, I.P.C. covered the ingredients of the offence under Section 279, I.P.C. The sentence of Rs. 250/- on account of fine under Section 279, I.P.C. is, therefore, set aside.
12. As to the sentences of rigorous imprisonment of one year and a fine of Rs. 250/-. I find them rather on the heavier side. In my view, a sentence of 6 months’ rigorous imprisonment would be sufficient for the ends of justice.
13. In the result, the petitioner’s convictions under Sections 279 and 304A, I.P.C. are affirmed. The petitioner’s sentence of imprisonment under Section 304A is however reduced from one year’s R.I. to six months’1 R.I. The sentences of fine of Rs. 250/- underS. 279, I.P.C. and of Rs. 250/- under Section 304A are set aside. The amounts of fine, if deposited in Court, be refunded to the applicant. With the above modifications, the revision is dismissed.
14. The petitioner who is on bail is hereby directed through his counsel to appear before the Chief Judicial Magistrate, Morena on 12-2-1986 to hear the result of the revision and to surrender to his bail to serve out the remaining part of the sentence of imprisonment.