VINOD KUMAR Vs. STATE

JUDGEMENT

(1.) By the present petition the Petitioner seeks setting aside of the order dated 18 th February, 2010 passed by the learned Additional Session Judge upholding the order of conviction of the Petitioner passed by the learned Metropolitan Magistrate under Sections 304A and 279 IPC. Learned Metropolitan Magistrate vide order dated 19 th September, 2007 sentenced the Petitioner to undergo Rigorous Imprisonment for 6 months for offence punishable under Section 279 IPC and a fine of Rs 500/- and to undergo Rigorous Imprisonment for 1 year and Rs. 1000/- fine under Section 304A IPC, in default of payment of fine to undergo Simple Imprisonment for one month.

(2.) The brief facts of the Prosecution case are that on 25 th November, 1999, while Jitender Sharma was standing in front of Sunny Selection, Babarpur Road, Delhi, a school bus bearing registration No. DL 1P 1690 was going towards Shahadra from Maujpur via Babarpur Road. At about 1:15 pm, one boy was going towards West Gorakh Park from Babarpur Road. The bus driver was driving the bus at a high speed in a rash and negligent manner which struck the boy and as a result the boy fell down at the spot. The bus driver tried to flee after leaving the bus but was apprehended by Jitender Sharma with the help of public persons. The bus driver disclosed his name as Vinod. On this statement of Jitender Sharma, FIR was registered against the Petitioner under Section 279/304A IPC. After completion of the investigation, chargesheet was filed. Learned Metropolitan Magistrate after recording the prosecution evidence and statement of the accused under Section 313 Cr.P.C. convicted and sentenced him as mentioned above. Aggrieved by the judgment and order on sentence, the Petitioner preferred an appeal which was dismissed by the learned Addl. Sessions Judge vide order dated 18 th February, 2009. These judgments of learned Metropolitan Magistrate and learned Addl. Sessions Judge are impugned in the present petition.

(3.) Learned Counsel for the Petitioner contends that the impugned judgments are based upon conjectures and surmises. Learned courts below have failed to appreciate the fact that the prosecution case is based on the testimony of PW10 the sole eye witness to the alleged incident, there are material contradictions in his testimony and therefore the same is not reliable. It is contended that no public person who apprehended the accused has been examined by the prosecution. Also the seizure memo, driving license, arrest memo and jamatalashi had not been signed by PW-10 or any other eye witness. It is contended that the site plan is hit by Section 162 Cr. P.C. as the same was not prepared on the statement of any witness and hence is not admissible in evidence. Further no document has been produced nor any other witness has been examined to prove the presence of PW10 at the spot. Learned Counsel contended that no negligence or rashness has been proved by the prosecution. Admittedly the Petitioner was driving the bus at a slow speed. Moreover, PW10 in his cross examination has admitted that there was heavy traffic on the road. Thus, in the absence of any evidence to support the Prosecution story, the impugned judgments are liable to be set aside.