JUDGMENT

1. The petitioner was put to trial arising out of FIR bearing no 33/03 registered at police station Krishna Nagar under sections 279/304A of Indian Penal Code, 1860 (hereinafter referred to as “IPC”) on allegations that the petitioner on 03.02.2003 at 6.10 pm at road no 57 opposite Swaran Cinema, Delhi within the jurisdiction of PS Krishna Nagar was found driving the vehicle bearing registration no.DL-1PB-0717 in a rash and negligent manner so as to endanger the human life and personal safety of others and while doing so hit against Mukut Lal when he was crossing road and caused his death not amounting to culpable homicide. The petitioner was given notice under section 251 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the code”) to which the petitioner pleaded not guilty and claimed trial. The prosecution examined seven witness including eye witness Girish Kumar as PW1. The Statement of accused was recorded under section 313 of the Code wherein the appellant pleaded innocence and false implication but did not lead defence evidence. The Court of Sh. Raj Kumar, Metropolitan Magistrate, Karkardooma Courts, Delhi (hereinafter referred to as “the trial court”) vide judgment dated 22.11.2007 convicted the petitioner for offences punishable under section 279/304A IPC primarily relying on testimony of eye witness Girish Kumar. The relevant part of the impugned judgment is reproduced verbatim as under:-

8. In order to prove that the accused was driving the vehicle on the date, time and place, the most prominent, star witness and the eye witness of the incident is PW1 Girish Kumar who has categorically submitted that on 3.2.2003 he alongwith his father were coming from Tis Hazari courts in the bus in question and accused present in the court on that day was driving the bus in a rash and negligent manner. PW1 has categorically further submitted that at about 6.10 p.m. When the bus reached opposite Swaran Cinema bus stop, he alongwith his father were in the process of getting down from the bus, the accused shouted "Jaldi Utro Jaldi Utro". His father boarded down from the bus and when he was crossing the road in front of the bus, the accused started the bus in a rash and negligent manner as a result of which the accused hit his father and his father fell down from the bus, the blood started oozing out from the body of the victim and he was taken to Sri Ram Hospital where the doctor declared the victim as brought dead. PW1 has proved in his statement on record as PW1/A, the seizure memo of the bus as Ex.PWI/B, the seizure memo of the driving licence as Ex.PWI/C, personal search memo of the accused as Ex.PWI/D, the arrest memo as Ex.PWI/E, identification of the dead body as Ex.PWI/F. PW1 in the cross-examination has categorically denied that his father was unhealthy and fell down in front of the bus due to vertigo. It is pertinent to mention here that the accused has been unable to bring on record any evidence to show that the victim was suffering from vertigo and to prove his above said contention. Rather, in the cross-examination PW1 has again strengthened the prosecution story that his father was 70 years old and was hale and hearty.

10. Further, for establishing the factum of rashness and negligence on the part of the driver/accused while driving the impugned vehicle, the alleged eye witness testified that he alongwith his father were returning to their house from Tis Hazari Courts and when the blue line bus bearing no.DL-1PB-0717 reached opposite Swaran Cinema bus stop, he alongwith his father were in the process of getting down the bus when the accused shouted “Jaldi Utro Jaldi Utro". PW1 as well as the victim boarded down from the bus and when the victim was crossing the road rent of the bus the accused present in the court started the bus in a rash and negligent manner as a result of which the accused hit the victim, the victim fell down from the bus, the blood started oozing out from his body and he w