JUDGMENT 1. - This is an application in revision filed by Girdhari against the judgment of the Additional Session Judge, Tonk, camp Jaipur, dated March 7, 1977, by which the appeal filed by the petitioner against his conviction and sentences under section 304A & 337. I.P.C. was dismissed and the judgment of the Additional Munsiff and Judicial Magistrate,Jaipur (East) dated June 3, 1976, was upheld. 2. The incident which led to the prosecution of Girdhari petitioner may be briefly stated as fellows: On January 9,1969, at about 9 or 9.30 p.m. truck N. RSL 9831 driven by the petitioner was moving on the road towards Chaura Rasta from the side of Tripolia at the fast speed. After the truck driven by the petitioner had taken its turn towards Chura Rasta from the side of Tripolia, the truck, on account of high speed and negligence of the driver, went on the foot path in front of the temple of Gopaiji and collided against Man Singh, Jagdish Prasad and Ram Kishore, who were standing on the footpath in front of the temple. As a result of the collision, all the three person received injuries can their bodies and Jagdish Prasad alone succumbed to his injuries sustained by him. The injuries caused to Ram Kishore were grievous while the injuries of Man Singh were simple in nature. On receipt of a report from the public, the police registered a criminal case against the petitioner and took up usual investigation into the matter. Three injured were sent for medical examination as to their injuries. Dr. S.M. Duggar examined their injuries and prepared injury reports. Jagdish Prasad was admitted in the hospital, wherein he died after a few days. The police collected other necessary evidence in the case and, on completion of investigation, filed a charge-sheet against the petitioner under section 304-A, 338, 337 and 279, I.P.C. in the court of the Additional Munsiff and Judicial Magistrate, Jaipur (East). The learned Judicial Magistrate charge-sheeted the petitioner for the aforesaid offences and recorded his plea. The petitioner did not plead guilty to the charges and claimed to be tried. Hence, the learned Judicial Magistrate conducted the trial in accordance with law and found the petitioner guilty of the said offences under sections 304-A, 279 and 337, I.P.C. only. The learned Judicial Magistrate charge-sheeted the petitioner for the aforesaid offences and recorded his plea. The petitioner did not plead guilty to the charges and claimed to be tried. Hence, the learned Judicial Magistrate conducted the trial in accordance with law and found the petitioner guilty of the said offences under sections 304-A, 279 and 337, I.P.C. only. Accordingly, he convicted the Petitioner of the said offences and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2000/-, on the first count, in default of payment of fine to further suffer six months' rigorous imprisonment, and, on the second count to undergo rigorous imprisonment for three months and pay a fine of Rs. 1000/-, in default of payment of fine to suffer 11/2 months' rigorous imprisonment, and, on the third count under section 337, I.P C. to undergo rigorous imprisonments for three months and to pay a fine of Rs. 500/ , in default of payment of fine to further suffer rigorous imprisonment for 11/2 months. The learned Additional Munsiff and Judicial Magistrate further ordered that whole of the fine of Rs. 2000/, if deposited, would be paid to the wife or other legal heir of Jagdish Prasad Sharma, deceased, as compensation. Likewise, he ordered that out of the fine of Rs. 500/-, if deposited, a sum of Rs. 300/-, would be paid to Ram Kishore, injured, and Rs. 200/-, would be paid to another injured Man Singh as compensation. Aggrieved by his conviction and sentences, the retitioner preferred an appeal in the court of the Sessions Judge, Jaipur City, who, it appears, transferred this appeal to the Additional Sessions Judge, Tonk, holding camp at Jaipur.The Additional Sessions Judge dismissed the appeal after hearing the learned counsel for the parties, but, while passing the order, ordered that the substantive sentences awarded to the petitioner on all the three counts by the lower court shall run concurrently. Hence, this revision petition. 3. I have carefully perused the record and heard Mr. J.K. Mathur, learned counsel for the petitioner and Mr. G.C. Chatterji, Public Prosecutor, for the State. Firstly, it has been contended by Mr. Hence, this revision petition. 3. I have carefully perused the record and heard Mr. J.K. Mathur, learned counsel for the petitioner and Mr. G.C. Chatterji, Public Prosecutor, for the State. Firstly, it has been contended by Mr. J.K. Mathur appearing on behalf of the petitioner that the prosecution could not prove in this case by expert evidence that Jagdish Prasad died due to injuries or wounds caused to him by the truck having dashed against him on the foot-path where he was standing. It was further urged that it was obligatory on the prosecution to produce Dr. S.M. Duggar in evidence to prove that the injuries received by the deceased on his person were likely to be caused in the incident on account of the truck having dashed against his person at the time and place alleged by him. Mr. J.K. Mathur further contended that the prosecution not only failed to procure the evidence of the medical expert but also could not afford a reasonable explanation for with holding his evidence & so an adverse presumtion may be drawn against the prosecution and the petitioner may be acquitted of all the charges on his ground alone. In support of his above contention Mr. J.K. Mathur has placed reliance on Mohinder Singh v. The State, AIR 1953 S.C. 415 , Dhanna v. State, 1950 RLW 357 and Sunil Chandra v. The State, AIR 1954 Cal. 305 . Mr. G.C. Chatterji Public Prosecutor, on the other hand, urged that summons were issued to Dr S.M. Duggar many a time by the trial court but his attendance could not be procured, as summonses were not served on him. The Public Prosecutor further submitted that the prosecution has led evidence of eye-witnesses in this case including the two injured to prove that the injuries had been caused to the body of Jagdish Prasad Sharma, deceased, in the accident when the truck driven by the petitioner in a rash and negligent manner and at high speed, came over the foot-path and dished again t the two injured and the deceased who were standing there. In support of his above contention the Pub is Prosecutor took me through the statement of the two injured, namely, Ram, Kishore, Man Singh and the eye-witnesses, namely, Ram Jas PW 1, Jagdish Prasad son of Chhogalal Sharma, PW 5, Babu Khan PW 7, Madan Singh PW 10 and Sadhan Kishore PW 1l and contender on their strength that, even if the evidence of the medical expert is not on the record, it is proved by the prosecution beyond any reasonable doubt that the deceased met an accident, received injuries as a result thereof and died a few days hereafter. 4. I have considered the rival contentions mentioned above. It is no doubt true that Dr. S.M. Duggar, who examined the injuries of Man Singh, and Ram Kishore and performed post-mortem examination over the dead body of Jagdish Prasad, was a material witness in this case who ought to have been produced in the witness box in the court. The contention of the Public Prosecutor that summonses were issued to this witness many a time by the trial court but his attendance could not be procured on account of summonses having not been served on him is not acceptable because there is no material or evidence on the record to show that Dr. S.M. Duggar could not in found or his presence could not be obtained without an amount of delay or expenses which, in the circumstances of the case, the court considered unreasonable. If summonses were not served on Dr. S.M. Duggar, the prosecution ought to have led evidence of the serving officers to show that service of summonses on him could not be effected despite due diligence and that the prosecution may be permitted to adduce secondary evidence to prove the injuries and post mortem reports. No such steps have been taken by the prosecution for reasons best known to it. Injuries and post-mortem reports could not be proved and exhibited in this case. 5. The next pertinent question which requires determination is whether failure of the prosecution to prove the injury and post-mortem reports is fatal to its case and the petitioner is entitled to acquittal on this score alone. Injuries and post-mortem reports could not be proved and exhibited in this case. 5. The next pertinent question which requires determination is whether failure of the prosecution to prove the injury and post-mortem reports is fatal to its case and the petitioner is entitled to acquittal on this score alone. In my opinion, there is reliable evidence on the record to prove that deceased Jagdish Prasad and two injured namely, Ram Kishore and Man Singh fell victims to the accident and sustained injuries on their persons when the truck driven by the petitioner in a rash and negligent manner and at high speed came over the foot-path and dashed against their bodies. The two injured and the above-named eye-witnesses have unanimously stated in their depositions that it was the truck driven by the petitioner which caused the accident in which three persons, namely, Jagdish Prasad, Ram Kishore and Man Singh received injuries on their persons and out of them, later on, one person namely Jagdish Prasad died in the hospital. Consequently, on the basis of the evidence of the two injured and the aforesaid eye-witnesses both the courts below rightly held that three persons sustained injuries on their bodies in the course of the accident which was caused by the petitioner while driving his truck in a rash and negligent manner and at a high speed. However, in the absence of the testimony of the medical expert who conducted post-mortem examination on the dead body of Jagdish Prasad Sharma, it is very difficult for me to hold that the cause of the death of the deceased was due to injuries sustained by him in the accident. As the injury report of Jagdish Prasad Sharma and the subsequent post-mortem examination report in the case of his death are not prove and exhibited by the evidence of medical expert, and the prosecution miserably failed to produce such evidence, I am constrained to hold that no offence under section 304-A. I.P.C. is made out against the petitioner beyond reasonable doubt. In my opinion, the ends of justice would be met, if the petitioner's conviction under section 304-A. I.P.C. is altered to one under section 3371P.C. for causing injuries to Jagdish Prasad Sharma, deceased, by driving his truck in a rash and negligent manner and his substantive sentence of imprisonment is reduced to the one already undergone by him while maintaining the fine of Rs.2000/-, in default of payment of fine to sutler rigorous imprisonment for six months. Likewise, the ends of justice would be further met, if his substantive sentences under sections 279 and 337, I.P.C. are reduced to term already undergone by him while maintaining the fines and the terms of imprisonment in default of payment thereof imposed on him by the trial court under the of resaid charges. 6. Accordingly, I partly accept the revision petition and while altering the conviction of the petitioner from under section 304A to one under section 337, I.P.C. for causing injuries to Jagdish Prasad Sharma, deceased, on account of rash and negligent driving of his truck. reduce the sentence of rigorous imprisonment for one year awarded under section 304-A. I.P.C. to the term already undergone by him, and in addition thereto maintain the fine of Rs 2,00/-, with the direction that in default of payment of fine he shall undergo rigorous imprisonment for six months. Likewise, while maintaining the conviction of the petitioner under sections 337 and 279, I.P.C. for causing injuries to Ram Kishore and Man Singh in the accident) reduce the substantive sentences of imprisonment awarded to him under both the sections to the term already undergone by him while maintaining the fine and the terms of imprisonment in default of payment of fine imposed on him under both the aforesaid offences Likewise, the order of the trial court relating to the amounts to be paid to the two injured and wife or any other legal heirs of the deceased out of the fines, if deposited is confirmed The petitioner is on bail and need not surrender to his bail bonds. Two months' time is given to him deposit the fine in the court of the Additional Munsiff and Judicial Magistrate, Jaipur (East), failing which legal action shall be taken against him.Revision partly allowed. *******