JUDGMENT

1. The present appeal has been preferred by the state against the judgment dated 5th February, 2000 (hereinafter referred to as the "impugned judgment") passed by the trial court in FIR bearing no. 195/96 registered at P.S. Shakar pur, whereby the respondent has been acquitted under Sections 279/304A of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC").

2. The prosecution case, in brief, is that on 29th May 1996, at 4:00 p.m. near Hathi Shala, J.J. Camp, Vikas Marg, Laxmi Nagar, Delhi, the respondent was driving CRPF Bus no. DBP 7919 in a rash and negligent manner so as to endanger human life or personal safety of others and has hit against a cyclist Chander Prakash, who died at the spot.

The FIR was registered on the statement of the eyewitness Sh. Ram Phar Rai. During investigation the bus and the bicycle of the deceased was seized. The post mortem of the deceased was done. After investigation, the chargesheet was filed under Sections 279/304A of the IPC.

3. Notice under Sections 279/304A of the IPC was given to the respondent to which the respondent pleaded not guilty. The prosecution in order to prove its case, examined 06 witnesses. The statement of the respondent has been recorded under Section 313 Code of Criminal Procedure, 1973 in which he denied the case of the prosecution.

4. I have heard the learned APP for the State and the learned counsel for the respondent and have examined the record.

5. PW1 Sh. Ram Phar Rai, is the eyewitness of the accident and has deposed that on 25th May 1996, he alongwith Sh. Chander Prakash (deceased) was coming from Delhi Gate Exchange on their bicycles at about 4:00 p.m. When they reached near Hathi Shala at Vikas Marg, the deceased was going ahead of him. In the meanwhile, one CRPF Bus no. DBP 7919 came from ITO side at very high speed and driven in a rash and negligent manner and hit from behind against the bicycle of deceased. He fell down the bus crushed him on the road and the bus stopped after 10 feet. The accident was caused due to the negligent driving of the respondent. Police had recorded his statement which is Ex PW1/A

PW2 Dr. Rajesh Gupta, has proved the post-mortem report of the deceased as Ex PW2/A.

PW3 S.I. Kedar Nath, conducted the mechanical inspection of the CRPF Bus no. DBP 7919 and proved his report as Ex PW3/A.

PW6 S.I. Kartar Singh is the investigating officer of the case and has proved the site plan of the spot of incident as Ex PW6/B and seizure memo of the bus and the bicycle as Ex PW5/A and Ex PW5/B respectively.

6. Learned APP for the State has argued that the trial court has passed the impugned judgment on the basis of surmises and conjectures which is against the evidence on record. From the evidence on record, it is proved beyond reasonable doubt that the respondent was driving the bus at a very high speed which is a negligent act and thereby hitting the bicycle of the deceased and causing his death. It is prayed that impugned judgment be set aside and the respondent be convicted under Sections 279/304A of the IPC.

Per contra, learned counsel for the respondent has argued that the trial court has passed the impugned judgment after properly analysing the evidence on record as the "high speed" by itself does not establish rash or negligent driving. There is no infirmity in the impugned judgment. The appeal is liable to be dismissed as it is without any merits.

7. Before adverting to the facts of the case, it would be apposite to refer to the relevant statutory provisions, that are Sections 279/304 A of the IPC, which provide as follows: -

"279 - Rash driving or riding on a public way: Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

"304 A