JAI BHAGWAN Vs. STATE

JUDGEMENT

(1.) Petitioner was convicted by learned Metropolitan Magistrate (M.M.) for offences under Sections 279/337/304-A (wrongly mentioned as 338) of the Indian Penal Code on 3.6.1995 and has been sentenced under Section 304-A Indian Penal Code only to RI of six months and a fine of Rs.1,000.00 . His appeal was dismissed by learned Additional Session Judge (ASJ) on 7.9.1998. Petitioner challenges the legality, correctness and validity of this conviction and the sentence.

(2.) Learned counsel for the petitioner has contended that the identity of the petitioner as the driver of the offending vehicle has not been established and no TIP was held. Secondly, the finding that the accident took place due to rash and negligent driving of the petitioner is not reasonable and justified; relevant material and circumstances have not been considered; site plan has been wrongly relied to support the prosecution case and it rather proves that the accident had taken place due to rash and negligent act of the deceased driver of the car. This evidence has been misread. Testimony of Public Witness-3 is neither sufficient nor reliable and should not have been believed and conviction based on his testimony. Mere denting and damage to the bus in itself is not sufficient to establish the act of rashness or negligent driving.

(3.) Whereas learned counsel for the respondent has disputed these contentions and supported the conviction and sentence. He has also contended that the findings are based on material on record including the statement of Public Witness-3, site plan and other relevant considerations/circumstances. Public Witness-10, Shri Bhagwan, ATI, DTC has deposed that Driver Jai Bhagwan, Badge No. 15260 present in court was on duty as Driver on Bus No. DLP-1662 on 17.12.1985 from 2.30 p.m. to 10.5 p.m. He has proved his duty slip as Ex. P-1. He was not corss-examined. In his statement under Section 313 of the Code of Criminal Procedure, the petitioner has not denied that he was driving the bus at the time of the incident though he has denied his negligence. From this material, it has been rightly held that the petitioner was the driver of the vehicle at the time of the accident. Moreover, in the judgement of the learned Trial Court, it has been noticed that the counsel for the accused had submitted that the accused did not dispute the identity and the fact of accident. The contention about the identity of the driver thus has no merit.