JAI BHAGWAN @ KALE Vs. STATE

JUDGEMENT

(1.) By this petition, the Petitioner lays a challenge to the judgment of the learned Metropolitan Magistrate dated 23 rd January, 2009 convicting him for offences under Sections 279/304A IPC, the order on sentence dated 28 th January, 2009 directing him to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.2000/- and in default of payment of fine to further undergo Simple Imprisonment for one month and the judgment of the learned Additional Sessions Judge dated 4 th April, 2009 upholding the conviction and the order on sentence.

(2.) Learned counsel for the Petitioner contends that the learned Trial Court considered inadmissible evidence for convicting the Petitioner. There is no evidence on record to prove the rash and negligent act of the Petitioner. Further, the evidence of rash and negligent act has to be inferred from the entire evidence on record and not merely from the statement of a witness. Reliance is placed on Abdul Subhan vs. State, 2007 1 ChandCriC 414. Despite the fact that PW4 was present at the spot and took the injured to the hospital however no FIR was lodged by him. Further, this version of PW4 is contrary to that of the Investigating Officer who stated that when he reached the spot, he found the injured on the road. Thereafter, he took him to the police station and from there to the hospital. The evidence regarding the identity of the Petitioner was insufficient before the courts below. The Petitioner was for the first time identified in the Court by PW3 and PW4. The incident was of night. It has not been proved that there was sufficient light and thus the witness could have seen the Petitioner. Reliance is placed on Bollavaram Pedda Narsi Reddy Vs. State of Andhra Pradesh, 1991 AIR(SC) 1468to contend that at night the presence of light at the place of incident assumes importance. No adverse view can be taken against the Petitioner for refusal of the TIP as the Petitioner was produced in unmuffled face. Reliance is placed upon Ten Singh vs. State of Delhi Admn. (Delhi) (DB), 1995 3 ChandCriC 29. It is contended that in such a situation the accused was justified in refusing the test identification parade. The learned Trial Court has heavily relied upon the suggestion of the defence that the witnesses were drunk inferring thereby that the Petitioner's presence has been admitted. It is contended that the defence counsel's suggestions are no evidence against the accused. Further, no statement of the counsel can implicate an accused. Reliance is placed on Vijay Kumar vs. State,1995 JCC(Del) 307 .

(3.) Learned APP for the State, on the other hand contends that as per the site plan Ex. PW10/B the deceased was on the left side of the lane. Further the site plan clearly shows the street light at Mark 'D' and the place of incident at Mark 'A'. Thus there was ample light at the spot for the witnesses to have identified the Petitioner. The Petitioner looked at the deceased and thereafter left the spot. Reliance is placed upon State of Karnataka vs. Murlidhar,2009 4 SCC 143. It is contended that driving on the wrong side itself shows that there was sufficient criminal negligence. Even in reply to the notice under Section 133 of the Motor Vehicles Act it was admitted that the Petitioner was driving the vehicle. Hence, there is no infirmity in the impugned judgments and the petition is liable to be dismissed.