BAL KISHAN Vs. STATE

JUDGEMENT

(1.) THE present petition has been filed under Section 397 read with section 482 of the Code of Criminal Procedure, 1973, assailing the Judgment dated 17. 12. 2007 passed by learned Additional Sessions Judge, whereby the judgment dated 10. 10. 2007 and the order of sentence dated 27. 10. 2007 have been confirmed. The petitioner herein has been convicted for Rigorous imprisonment for a period of three months with fine of Rs. 1000 under section 279 IPC and Rigorous imprisonment for a period of one year and fine of Rs. 3,000 under Section 304-A IPC.

(2.) THE case set up by the prosecution is that on 13. 9. 1998 an accident had taken place at about 1:30 p. m. when the deceased alongwith his brother was going towards a mosque to offer prayer via Wazirabad Road, Loni flyover. When they reached the Flyover one truck bearing No. HR26a-7256 driven at very fast speed came from behind and hit the deceased which resulted in his death. A report was lodged by the brother of the deceased, which culminated into FIR No. 93/1998 under Sections 279/304-A IPC.

(3.) IT is contended by learned counsel for the petitioner that the impugned Judgments and order on sentence are ex facie illegal, unwarranted, unlawful, perverse and contrary to facts and law. It is submitted that both the Courts below have not appreciated the evidence on record in the right and just perspective. Learned counsel further submits that there is material irregularity and illegality in the Judgment which has resulted in miscarriage of justice. According to learned counsel for the petitioner, the truck in question was loaded and was moving in the upward direction on the flyover and thus it is not possible for the truck to be in high speed. Learned counsel further submits that there is material discrepancy in the evidence of the I. O. , who had stated during cross-examination that the accident had occurred about 25-30 steps before the starting point of the flyover whereas according to the site plan the accident had taken place at point (A) which is 30 steps upward on the flyover. Learned counsel for the petitioner has placed strong reliance on AIR 1997 SC 221, wherein the supreme Court has held: