NITIN Vs. STATE OF MP

JUDGEMENT

(1.) Through this petition, the petitioner has challenged his conviction under Section 304-A of IPC and sentence of 2 years RI with fine of Rs.1000/-, in default 3 months additional RI recorded by the trial Court vide judgment dated 21/09/2015 passed in Criminal Case No.74/2011 and upheld by the appellate Court vide judgment dated 02/08/2018 passed in Cr.A. No.08/2017.

(2.) The incident in short is that on 21/01/2011, the deceased Balu was standing on the side of road near village Karangarh along with Khushal and Kalu. Suddenly, the petitioner, who was driving his motorcycle rashly and negligently hit Balu, who fell down and was taken to the home by his brother Khushal. Next day, when his condition deteriorated, he lodged FIR and took him to the hospital on 23.01.2011, where he was declared brought dead. Postmortem report confirmed that the death was due to head injury. The police registered crime number, investigated the same and after usual investigation, filed charge-sheet.

(3.) Learned counsel for the petitioner submitted that in this case, the incident took place on 21/01/2011 at 19.30 but FIR was lodged after almost 22 hours i.e. next day on 22/01/2011 at about 17.50. Even at that time, the deceased was not taken to the hospital. He was taken to the hospital on 23/01/2011 at 11.50 a.m. The petitioner was not named in the FIR. It is mentioned in the FIR that some Bhatnavar, of course which is the surname of the petitioner also, was driving the motorcycle. Star witness Khushal, who claimed to be an eyewitness has unambiguously admitted in para-6 of his cross-examination that the petitioner was not driving the motorcycle at the time of the incident. Another eyewitness produced by the prosecution Kalu (P.W.3) did not say anything against the petitioner. He was then declared hostile by the learned Public Prosecutor and suggestion was put before him that the petitioner was driving the motorcycle which he replied affirmatively. Only this affirmative reply of Kalu (P.W.3) has been made basis of conviction of the petitioner.