OM PRAKASH Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) The present revision petition has been filed under Section 397 Cr.P.C read with Section 401 Cr.P.C. assailing the judgment and order dated 20.1.2012 passed by the learned ASJ whereby the order passed by learned MM on 26.8.2011 convicting the petitioner under Section 279/304A IPC was upheld. The petitioner was charged under the abovementioned sections for causing death of one Ashok Kumar by crushing him under the rear wheels of the bus bearing registration No.DL 1P 0866 which was being driven by the petitioner on 06.08.1998. It was the case of the prosecution that on the relevant day at about 5.15 P.M. the deceased was waiting for a bus at the Nanakpura Gurudwara Bus Stand on Ring Road and boarded the offending bus from the front door, but the petitioner accelerated the bus with a jerk which resulted in the loss of balance by the deceased due to which he fell down from the bus and his legs were crushed by the rear wheels of the bus. The petitioner then fled away from the spot along with the offending bus. The victim was removed to the Safdarjung Hospital by his brother and the information regarding the accident was conveyed to the Nanakpura Police Station vide DD No.28. The Investigating Officer (PW-10) reached the hospital and recorded the statement of the victim which formed part of the evidence vide Exhibit PW-10/B. The victim passed away on the following day. The Investigating Officer prepared the site plan of the accidental spot with the help of two eye witnesses, Dinesh Kumar (PW-2) and Daya Chand (PW-4) and recorded their statements. After completion of investigation, the charge sheet was filed by the police. Prosecution examined 12 witnesses to prove its case and based on material evidence and testimonies of the eye witnesses, the trial Court as well as Appellate Court found the petitioner guilty under the above mentioned Sections. Hence, the present appeal.

(2.) The counsel for the petitioner contends that the impugned judgment of the Appellate Court suffers from illegality and is based on assumptions and surmises. It has been contended that the testimony of the eye witnesses have been wrongly relied upon by the trial Court as well as the Appellate Court because they were acquainted with the deceased prior to the incident and were interested witnesses. It has been further submitted by the counsel for the petitioner that the prosecution has not been able to establish the element of negligence and rashness to nail the culpability of the petitioner and hence the impugned judgment deserves to be set aside.

(3.) Per contra, the learned APP for the State has submitted that the judgment of the trial Court as well as Appellate Court are based on well founded reasons and cogent testimonies of the eye witnesses and the dying declaration of the deceased himself and should not be interfered with.