ISHWAR SINGH Vs. STATE

JUDGEMENT

(1.) By the present petition the Petitioner seeks setting aside of the order dated 25 th November, 2009 passed by the learned Additional Sessions Judge upholding the order of conviction of the Petitioner passed by the learned Metropolitan Magistrate under Sections 304A and 279 IPC. The learned Metropolitan Magistrate vide order dated 4 th April, 2009 had sentenced the Petitioner to undergo Simple 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 and Simple Imprisonment for 18 months and Rs. 5000/- fine under Section 304A IPC.

(2.) Briefly the prosecution case is that on 17 th February, 1997 at about 6.40 pm at Rohtak Road near Stadium Swarna Park, Nangloi, the Petitioner was driving DTC Bus bearing No.DL1P 9802 in rash and negligent manner so as to endanger human life and safety of others and while doing so the bus hit stationary tempo No.HR 46 9896 and crashed Naveen Kumar in between both the vehicles who succumbed to injuries. Accordingly FIR was registered under Sections 279/304A IPC. 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. The learned Additional Sessions Judge vide order dated 25 th November, 2009 dismissed the appeal and upheld the judgment passed by the learned Metropolitan Magistrate.

(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 despite examining 13 witnesses including two alleged eye witnesses the prosecution has failed to establish the identity of the accused and also his presence at the spot. Neither during investigation nor during trial it was established that the deceased Naveen Kumar was working as an employee at the air filling station. No independent witness like the proprietor of the air filling station has been made a witness to the case. It is further stated that by merely on the basis of reply to notice under Section 133 M.V. Act, the requirement of law that the accused/Petitioner was driving the offending vehicle and that too in rash or negligent manner does not stand fulfilled. As per the site plan also there is no bus stop where the deceased could have got down. Further, the mechanical inspection report also does not support the case of the prosecution as there are no damages on the offending vehicle. The chain of events in the present case clearly shows that the deceased was himself negligent and sustained injuries by falling from the bus. Hence, the findings of the learned Courts are perverse and based on no evidence. No passenger of the bus has been examined by the prosecution 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 the negligence of the deceased, the impugned judgments are liable to be set aside.