DEVENDER Vs. STATE

JUDGEMENT

(1.) By the present petition the Petitioner seeks setting aside of the order dated 17th July, 2007 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 I.P.C. though the order on sentence was modified. Learned Additional Sessions Judge reduced the sentence awarded to the Petitioner under Section 279 IPC to Rigorous Imprisonment for three months and a fine of Rs. 500/- and in default to further undergo Simple Imprisonment for five days and under Section 304A I.P.C. Rigorous imprisonment of nine months and a fine of Rs. 1,500/- and in default of payment of fine to further undergo simple imprisonment of 15 days. The learned Metropolitan Magistrate vide order dated 5th August, 2006 had sentenced the Petitioner to undergo Rigorous Imprisonment for 6 months for offence punishable under Section 279 IPC and a fine of Rs. 500/- and in default of payment of fine to undergo simple imprisonment for five days. Rigorous Imprisonment for 1 year and Rs. 1,500/- fine under Section 304A I.P.C. in default of payment of fine to undergo Simple Imprisonment for fifteen days.

(2.) Briefly the prosecution case is that on 28th January, 2000 at about 4.30 - 4.45 p.m. near Chhatta Rail Chowk Shahjad, the Petitioner was driving the bus bearing No. DL - 1 PA - 4579 in a rash and negligent manner and without waiting for the passenger Naushad to get down he started the bus at a fast speed due to which Naushad fell down. Shahjad the brother of Naushad was present with him during this time. The bus was stopped after the crossing and Shahjad got down, came back to the place where his brother was lying. Nuashad was removed to Hindu Rao Hospital where he succumbed to injuries and died on 14th February, 2000. On the basis of the statement of Shahjad FIR was registered under Sections 279 IPC. After the death of Naushad Section 304A IPC was added. After completion of investigation charge sheet was filed. Learned Metropolitan Magistrate after recording the prosecution evidence and statement of the accused convicted and sentenced him as mentioned above. Aggrieved by the judgment and order on sentence, the Petitioner preferred an appeal wherein the sentence was modified by the learned Additional Sessions Judge vide order dated 17th July, 2007.

(3.) Learned Counsel for the Petitioner contends that the impugned judgments are based on conjectures and surmises. Learned courts below failed to appreciate the fact that neither the deceased nor his brother Shahjad, the complainant had informed the driver that they intended to get down from the bus, where the deceased allegedly got down was not the bus stop and no passenger was supposed to get down from the bus. As per the admission of the complainant himself the deceased and the complainant were guilty of violating the traffic rules. Learned Counsel contended that no negligence or rashness has been proved by the prosecution. Learned Courts below have failed to take into consideration that in the post mortem report/MLC there is no mention of any crush injuries specially in the circumstances where the prosecution has claimed that the deceased was run over under rear wheel of the offending vehicle. The MLC was not proved by the prosecution nor any expert opinion was taken with respect to the injuries. The testimony of P.W. - 4 that is Shahjad is not trustworthy since he is an interested witness being the brother of the deceased and has lodged the complaint with an ulterior motive of claiming compensation. No passenger of the bus has been examined by the prospection to prove its case though it is stated that there were other passengers present in the bus when the alleged accident took place. Thus, in the absence of any evidence to support the Prosecution story and the fact that the injuries sustained by the deceased were because of his own negligence and fault, the impugned judgments are liable to be set aside.