BRAHM PRAKASH Vs. STATE

JUDGEMENT

(1.) By the present petition the Petitioner seeks setting aside of the order dated 1 st September, 2010 passed by the learned Additional Sessions Judge upholding the order of conviction of the Petitioner passed by the learned Metropolitan Magistrate under Sections 304A/279 IPC. The learned Metropolitan Magistrate vide order dated 27 th January, 2010 sentenced the Petitioner to undergo Rigorous Imprisonment for a period of six months for offence punishable under Section 279 IPC and a fine of Rs. 1000/- and in default of payment of fine to undergo Simple Imprisonment for 15 days and Imprisonment for two years and Rs. 1000/- fine under Section 304A IPC, in default of payment of fine to undergo Simple Imprisonment for 15 days.

(2.) Briefly the prosecution case is that on 23 rd April, 1994 at around 9 p.m. at Faiz Road Crossing, D.B.G. Road, the Petitioner was driving Truck bearing No. UP 15B 3642 in rash and negligent manner so as to endanger human life and personal safety of others and while doing so he struck against a mopped bearing No. DL 1SC 4565 and caused death of rider. FIR No. 127/1994 under Sections 279/304-A IPC was registered at PS DBG Road 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 1 st September, 2010 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 that there was no site plan drawn to show the direction of movement of the truck and the Heropuch or the side of traffic that was to stop and that was allowed to move because the spot of accident was a crossing. Further there is no proof that the Petitioner was driving the offending vehicle in a rash and negligent manner. PW4 has deposed that the truck was at a very high speed, however, in his cross-examination he has stated the speed of the truck was around 30-40 kmph, which is not a very high speed. Further this witness has deposed that he was not called for TIP of the accused nor did he remember that at what time he had identified the accused. It is further stated that both the alleged eye-witnesses are planted and their testimonies are full of contradictions and improvements, which cannot be relied upon to sustain the conviction of the Petitioner. The MLC of the deceased records that the patient had two cardiac arrests and the doctor who had conducted the examination of the deceased has also not been produced as a witness. Further in the statement of the Petitioner recorded under Section 313 Cr.P.C. the time of incident is mentioned to be 9:00 a.m. There is no witness of the seizure memo and no arrest memo was recorded, though the Petitioner was arrested on the basis of the statement of PW6. It is further stated that the moped rider struck against his truck while his truck was stationary at the red light due to which the accident took place. Thus, the negligence on the part of deceased cannot be attributed to the Petitioner. The impugned judgments are erroneous on facts as well as on law and liable to be set aside.