Sh. Jagdish Prasad vs State (Govt Of Nct Of Delhi)
2011 Latest Caselaw 4377 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Reserved on: September 05, 2011
                                    Decided on: September 08, 2011

+      CRIMINAL REV.P. NO.112/2005

       SH. JAGDISH PRASAD                          ....PETITIONER

                         Through:   Mr. Kunwar C.M. Khan, Advocate

                             Versus

       STATE(GOVT OF NCT OF DELHI)      .....RESPONDENT
               Through: Ms. Fizani Husain, APP



        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. 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 Vs. State whereby he maintained

the conviction and sentence recorded by learned trial court on the

charges under Section 279/304A IPC.

2. Briefly stated, background facts for the purpose of this revision

petition are that the revisionist Jagdish Prasad was put to trial on charges

under Section 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.

3. 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 under Section 313 Cr.P.C. was recorded wherein

he denied the prosecution story.

4. 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.

5. 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.

6. 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 under Section

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 under

Section 304A IPC or at least he should have been given the benefit of

doubt.

7. 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 under Section

401 Cr.P.C. It is argued that otherwise also, there is no infirmity in the

impugned judgment which may call for interference in revision.

8. 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.

9. In the instant case, the revisionist was charged for the offence

punishable under Section 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 under

Section 133 Motor Vehicles Act served on the owner of the truck by the IO.

On perusal of the notice under Section 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 under Section

401 Cr.P.C., 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 under Section 279/304A IPC giving him benefit of doubt.

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

11. The revision petition stands disposed of.

(AJIT BHARIHOKE) JUDGE SEPTEMBER 08, 2011 Ks