ANIL KUMAR Vs. STATE

JUDGEMENT

(1.) By the present petition the Petitioner seeks setting aside of the order dated 5 th February, 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 12 th September, 2007 had sentenced the Petitioner to pay a fine of Rs. 500/- and in default of payment of fine to undergo Simple Imprisonment for fifteen days for offence punishable under Section 279 IPC and Rigorous Imprisonment for one year and fine of Rs. 1,000/- under Section 304A IPC, in default of payment of fine to undergo Simple Imprisonment for thirty days.

(2.) Briefly the prosecution case is that on 2 nd November, 1993 at about 10.00 a.m. in front of bus stand of Bhooton wali gali, the Petitioner was driving Bus bearing No. DL1P 2921 in rash and negligent manner so as to endanger human life and personal safety of others and while doing so he caused death of one Rajan who was getting down from the Bus and the Petitioner suddenly drove his bus due to which he fell down. He was removed to the hospital where he succumbed to the injuries. FIR No. 474/1993 was registered against the Petitioner. The investigation was conducted and charge sheet was filed for offences punishable under Section 279/304A IPC against the Petitioner. After recording the statement of the prosecution witnesses and the accused under Section 313 Cr.P.C., learned trial court convicted and sentenced the Petitioner as mentioned above. Aggrieved by the judgment of conviction and order on sentence, the Petitioner preferred an appeal. Learned Additional Sessions Judge vide order dated 5 th February, 2009 dismissed the said appeal.

(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 the petitioner is not named in the first DD entry recorded by the police. The deceased was admitted in DDU hospital by one Jose, who has not been examined as a witness by the prosecution. There are contradictions in the testimony of witnesses. PW2, Gurmukh Singh and PW4, Bhola Nath the alleged eye witnesses have given contrary versions. PW2 has stated that the Petitioner accompanied him to Vimal Clinic and later on to the clinic of Dr. Dharamvir to get the injured treated. Whereas PW4 has deposed that the Petitioner accompanied him and took the injured to DDU hospital. There was no independent witness to corroborate that the Petitioner was responsible for the said accident. The injured died on 8 th November, 1993 in hospital that is after five-six days of the alleged accident. Thus the alleged act has not resulted in the death of the deceased. The prosecution has not been able to prove the identity of the petitioner. Further no TIP of the petitioner was conducted and the petitioner was identified by the witnesses on 27 th February, 1997 that is after 3 1/2 years of the incident. As the identity of the petitioner was shrouded in mystery, conducting test identification parade of the petitioner was mandatory. It is also stated that an offence under Section 304A the rash and negligent act must have a direct nexus with the accident which in the present case is missing. There is no evidence placed on record to prove that the injuries sustained by the deceased were due to the negligence of the petitioner due to which he succumbed to death. Reliance is placed upon Niranjan Singh vs. State (Delhi Administration),1996 JCC(Del) 677 to contend that in case where the deceased fell down from the bus and came under its rear wheel, the conviction is not sustainable merely on a bald allegation of rash and negligent driving. Reliance is also placed on Dharam Pal vs. State,2010 1 JCC(Del) 104 to contend that where the accused was unknown to the sole eye witness who has seen him for a passing moment, not conducting TIP in such a case is fatal for the prosecution and the benefit of doubt has to be extended to the accused. 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.