I.S.TIWANA, J. - (1.) THIS petition is directed against the conviction of the petitioner under sections 304-A and 279 of the Indian Penal Code Briefly the facts alleged against him were that on July 11, 1983, at about 5.30 P. M. while he was driving bus No. HRC-6414 on the G. T. Road from Ashram, a place in Delhi to Sikri, a. little beyond Faridabad, he caused the death of Surinder Kumar by driving the vehicle in a rash and negligent manner. He is said to have hit the cycle of the deceased from behind. This version of the prosecution was accepted by the two Courts in the light of statements of two eyewitnesses. i.e., Ugar Sain and Narain Dutt, P. Ws. 1 and 2 respectively. It was P.W.1. who lodged the F. I R. Exhibit PA. at about 7.05 PM on the same day. While upholding the conviction as-recorded by the trial Court, the learned Additional Sessions Judge has observed in his judgment that there is nothing in the cross- examination of the aforesaid P. Ws to discard or disbelive the version given by them in their examanation-in-chief. Besides this be also opined in this judgment that the petitioner had not disputed the date. time and place of the occurrence in his statement under section 313 Cr.P.C.
(2.) MR . Gaur, learned Senior Advocate, appearing for the petitioner however points out that both the above noted conclusions of the learned Appellate Court are wrong and not supported by the evidence on record. He points out that firstly the petitioner in his statement under section 313 Cr.P.C. never accepted the version of the prosecution so far as the in time and place of occurrence is concerned. With regard to the date of occurrence all that he told the Court was that on that day he was on duty to run the Haryana State Transport Bus from Ashram to Sikri. Otherwise he denied that the bus driven by him even met with an accident on that day. It is then pointed out by Mr. Gaur that P.W. 1 has made three significant averments in his statement which are to the following effect : i) There was no traffic on the road; ii) It was the back portion of the bus that had struck the cycle. The front portion of the cycle had struck. iii) The bus was going in the centre of the road. If the factual position as deposed to by this witness is accepted as it has to be, then how the version of the prosecution that the deceased's cycle was struck by the bus in question from behind and thus killing Surinder Kumar can be accepted. Similarly P.W.2 whose name otherwise does not find mention in the F.I.R. though he was a co-factory worker with the deceased and P.W.1 has admitted in his cross-examination in no uncertain terms that "how the accident took place, they could not see." In the face of this statement of his how could the ocular version about the accident or the negligence or rashness in driving the bus by the petitioner could be accepted. Further it is very doubtful if his witness was at all present at the spot. As has been pointed out above, his name does not find mention in the F.I.R. as an eye-witness. He has further admitted in his statement that he was not on duty on that day and was rather on leave. What was the occasion for him to be present at the spot at that time is not explained by him. In the light of the above noted evidence of these two eye-witnesess on whose statements the conviction of the petitioner has primarily been founded cannot possibly be sustained. For the reasons recorded above I allow this petition and conclude that the case against the petitioner has not been proved beyond any reasonable doubt. He is thus acquitted. The fine if already paid be refunded to him.;