Sh. Jagdish Prasad vs State (Govt. of NCT of Delhi)

Ajit Bharihoke, J.—Instant revision petition is directed against the judgment and order dated 24.01.2005 passed by learned Additional Sessions Judge, Delhi in Crl. A. No. 1/2004 titled Jagdish Prasad v. State whereby he maintained the conviction and sentence recorded by learned trial court on the charges u/s 279/304A IPC.

Briefly stated, background facts for the purpose of this revision petition are that the revisionist Jagdish Prasad was put to trial on charges u/s 279 and 304A IPC on the allegations that on the night of 24.12.1993 at about 10:35 pm, the revisionist was driving truck No. DNG-1636 in a manner so rash and negligent so as to endanger human life and public safety and while driving so near Delhi Press Lighting Pvt. Ltd., Anand Parbat, New Rohtak Road, he hit the truck against a TSR No. DL ILA-3379. As a consequence of said accident, he caused death of Rajesh Kumar and Ibrahim.

In order to bring home the guilt of the revisionist, prosecution examined 13 witnesses, including an eye witness PW7 Bhagwat Prasad. Statement of the accused u/s 313 Code of Criminal Procedure was recorded wherein he denied the prosecution story.

Learned M.M., on consideration of the evidence, found the Petitioner guilty of the charges. He accordingly recorded the conviction vide judgment dated 20.02.2004 and sentenced the revisionist vide his order dated 26.02.2004.

Feeling aggrieved by his conviction and the sentence, the revisionist filed an appeal in the court of Sessions. Learned Additional Sessions Judge vide impugned order dated 24.01.2005 dismissed the appeal and maintained the judgment of conviction as well as the order on sentence.

Learned Counsel for the revisionist submits that the learned M.M. as well as the learned Additional Sessions Judge in appeal have committed a grave error in holding the Petitioner guilty of offence u/s 279/304A IPC ignoring the fact that there is no cogent evidence on record to establish beyond doubt that the Petitioner/revisionist was driving the truck at the time of accident. In support of this contention, he has drawn my attention to the testimony of the sole eye witness PW7 Bhagwat Prasad and pointed out that aforesaid witness has not identified the Petitioner as the driver of the truck. It is thus contended that the prosecution has failed to establish that the Petitioner was driving the truck in question, as such he ought to have been acquitted on the charge u/s 304A IPC or at least he should have been given the benefit of doubt.

On the contrary, learned APP has canvassed in favour of the impugned judgment. It is contended that both learned M.M. as well as the appellate court have returned a concurrent finding of fact against the Petitioner. Therefore, there is no occasion for this Court to interfere with the aforesaid finding in exercise of revisional jurisdiction u/s 401 Code of Criminal Procedure It is argued that otherwise also, there is no infirmity in the impugned judgment which may call for interference in revision.

I have considered the rival contentions and perused the record. It is well settled that in a criminal case, in order to bring home the guilt of the accused, the prosecution is required to establish the guilt beyond a shadow of reasonable doubt. If, on consideration of the prosecution evidence, a reasonable doubt remains in respect of culpability of the accused, he is entitled to benefit of doubt.

In the instant case, the revisionist was charged for the offence punishable u/s 279/304A IPC in an accident case involving a truck and a three-wheeler scooter. Thus, in order to bring home the guilt of the Petitioner, the prosecution was required to establish beyond doubt that the Petitioner was the driver of the truck at the relevant time. PW7 Bhagwat Prasad, the sole eye witness examined by the prosecution has not identified the Petitioner as the driver of the truck. He has stated that he saw two persons in the truck and that the driver fled away. Only other evidence worth name against the Petitioner is the statement of PW5 Harvinder Singh, owner of truck No. DNG-1636. PW5 in his testimony has stated that the Petitioner Jagdish Prasad was the driver of truck No. DNG-1636 on 24.12.1993 i.e. the date of accident. Question arises whether this statement of owner of the truck is sufficient to prove that the Petitioner was driving the truck at the time of accident. In order to find an answer to this question, it is necessary to have a look on the notice u/s 133 Motor Vehicles Act served on the owner of the truck by the IO. On perusal of the notice u/s 133 Motor Vehicles Act Ex.PW12/F, it transpires that at the bottom of this notice, PW5 Harvinder Singh has recorded in his own handwriting on 26.12.1993 that "we will produce the driver before you who was driving the truck No. DNG-1636 on 24.12.1993 by tomorrow". On perusal of above endorsement, one gets an impression that while appending the endorsement on 26.12.1993, PW5 Harvinder Singh was not aware about the identity of the driver of the truck on the relevant day. Subsequently, he might have found out from the record as to who was the driver on the truck. However, no such record has been produced to corroborate the version of PW5 Harvinder Singh. Otherwise also, PW5 Harvinder Singh is admittedly the owner of the truck. A possibility cannot be ruled out he himself was driving the truck at the time of accident and in order to save himself as the actual truck driver, he has falsely named the Petitioner as the driver of the truck. Thus, in my view, the testimony of PW5 Harvinder Singh is not sufficient to conclude beyond doubt that the revisionist Jagdish Prasad was driving the truck in question. Both learned M.M. and learned Additional Sessions Judge have ignored this fact. Therefore, in exercise of revisional jurisdiction u/s 401 Code of Criminal Procedure, I hereby set aside the impugned judgment of learned Additional Sessions Judge dated 24.01.2005 as also the judgment of conviction passed by learned M.M. and acquit the revisionist/Petitioner of charges u/s 279/304A IPC giving him benefit of doubt.

The revisionist is on bail. His bail-cum-surety stands discharged.

The revision petition stands disposed of.