JUDGMENT 1. - The sole-appellant has preferred this appeal being aggrieved against the judgment/order dated September 8, 1992 passed by the Special Judge, Dacoity Effected Area, Karauli, whereby he has been convicted under Section 302, IPC and sentenced to imprisonment for life and also to pay fine of Rs. 1,000/-. In default of payment of fine, he was awarded to undergo six months further rigorous imprisonment. Initially, the appellant and co-accused Fakira and Natiya were placed on trial, but the learned trial Judge acquitted Fakira and Natiya of all the charges and convicted the appellant as aforesaid. 2. After hearing the learned Counsel for the appellant and the learned Public Prosecutor, we are satisfied that a simple case of accident has been given colour of a murder case. As per prosecution case, the incident took place near Village Bamanpura in the morning of 28th July, 1991. It was alleged that the appellant was driving Truck No. RJU-5069 and the co-accused Natiya was sitting in the truck at the time of the incident. According to the prosecution, deceased Ghisya was returning from 'Mamchari-Pond after taking his morning bath and when he was going on the main road, which runs between Karauli to Keladevi the appellant Ramdhan chased him with his truck and deliberately ran over him despite of the fact that he tried to save. The incident is said to have taken place at the Bus-stand of Village Bamanpura, where co-accused Fakira was also sitting. Allegation against Fakira was that he came in front of Ghisya with a big stone in his hand and thus prevented him from running to save himself from being crashed the deceased-Fhisya. Thereafter, Natiya accused got down from the truck after taking it in a side and thereafter he and Fakira inflicted injuries on the deceased by stones. All the accused, ran away in the truck 3. Report of the incident was made by PW 13 Halke, the real brother of the deceased. He also claimed to be an eye witness of the incident. According to him, he had come at the Bus-stand to hire a tractor to plough his field. On this report (Ex. P19), case was registered under Sections 302 and 34, IPC. After registration of the case, investigation commenced. Site-plan was prepared by the Investigating Officer in the presence of Ram Narain and Ramoli (PW 8). According to him, he had come at the Bus-stand to hire a tractor to plough his field. On this report (Ex. P19), case was registered under Sections 302 and 34, IPC. After registration of the case, investigation commenced. Site-plan was prepared by the Investigating Officer in the presence of Ram Narain and Ramoli (PW 8). Inquest report of the dead-body was made and then the autopsy on the dead-body was conducted by the Medical Jurist, General Hospital, Karauli on the same day. After completing other formalities and recording statements of the witnesses, a charge-sheet was filed against the appellant and coaccused Fakira and Natiya. Ultimately, they were tried in the Court of Special Judge, Dacoity Effected Area cum Additional District & Sessions Judge, Karauli as aforesaid. 4. During trial, prosecution examined 14 witnesses. Out of them, PW 2 Jeevraj, PW 5 Girraj Prasad, PW 9 Sheonarain and PW 13 Halke were examined as eye-witnesses of the occurrence. However, PW 2, PW 5 and PW 9 did not support the prosecution case that the appellant deliberately ran over the deceased and according to them it was a case of accident and the appellant was driving the vehicle. The learned Trial Judge, relying on the testimony of sole-eye witness of PW 13 Halke and the evidence of doctor convicted and sentenced the appellant, though, reliance was not placed on the evidence of this witness qua co-accused Fakira and Natiya. 5. Learned Counsel appearing for the appellant vehemently urged that PW 13 Halke, being real brother of the deceased, had no occasion to be present at the place of incident in the ordinary course of business and that he was not an eye witness of the incident. Learned Counsel contended that the explanation of witness Halke that he had come at the Bus-stand of Village Bamanpura to hire a tractor was purely imaginary just to be an eye witness of the occurrence. In was also contended that the testimony of this witness was not accepted qua co-accused Fakira and Natiya. It was also contended that the First Information Report in the case was prepared later on. The statement of PW 13 Halke was read over by the learned Counsel for the appellant. After giving our careful and deep consideration, we are of the confirmed view that no reliance can be placed on the testimony of this witness. It was also contended that the First Information Report in the case was prepared later on. The statement of PW 13 Halke was read over by the learned Counsel for the appellant. After giving our careful and deep consideration, we are of the confirmed view that no reliance can be placed on the testimony of this witness. PW 13 Halke is a resident of another village, namely, Rajor and in ordinary course of business his presence at the place of incident was not expected. His statement that he had come at Bus-stand of village Bamanpura to hire a tractor to plough his field, does not appear to be convincing. Further, his evidence is in firm and conflicting on important factual aspects. The story given by this witness about the assault to the deceased by co-accused Fakira and Natiya has been disbelieved by the Trial Court and they have been acquitted. Thus a part of his evidence has not been acted upon by the Trial Court itself. We are also not prepared to accept the argument of the learned Public Prosecutor that the appellant was having knowledge that deceased-Ghisya would be coming on the road after taking his bath and the appellant and taken the truck with a pre-plan to commit his murder. From the statements of PW 2, PW 5 and PW 9 it transpires that it was a case of accident. Having taken all the aspects in consideration, we have no her situation in disbelieving the evidence of PW 13 Halke. 6. Next question arises for consideration as to whether the appellant could be convicted under Section 304-A, IPC for causing death of Ghisya by negligent and rash driving. The appellant has admitted in his statement that he was driving the tractor and this fact is also proved from the statements of PW 2, PW 5 and PW 9. Thus, it stands proved beyond doubt that the appellant was driving the tractor and caused the accident. From the site-plan and the materials on record, including the statements of the above witnesses, it is made out that the appellant was negligent in driving the vehicle as the accident had taken place on a kaccha road after leaving the main road, which establishes negligent driving and the fault of the driver. Consequently, the appellant can be safely held guilty for the offence under Section 304-A, IPC. Consequently, the appellant can be safely held guilty for the offence under Section 304-A, IPC. He has remained in jail for more period than the imprisonment, which can be awarded under Section 304-A, IPC. 7. Consequently, we allow this appeal in part. Conviction and sentence of the appellantunder section 302, IPC is set aside. Instead he is convicted under Section 304-A, IPC and sentenced to two years rigorous imprisonment, which he has already undergone. He is in jail, as such, he shall be released forthwith, if not required in any other case.Appeal partly allowed. *******