In the High Court of Punjab & Haryana at Chandigarh Crl. Revision No. 124 of 2008 (O&M) Date of decision: February 17, 2009 Ram Niwas ... Petitioner versus State (U.T. Chandigarh) ... Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Kamal Sharma, Advocate for the petitioner. Mr. Sukant Gupta, Advocate for U.T. Chandigarh. A.N. Jindal, J. Challenge in this petition is to the judgment dated 11.1.2008 passed by the learned Additional Sessions Judge, Chandigarh dismissing the appeal against the judgment dated 31.3.2004 passed by the Additional Chief Judicial Magistrate, Chandigarh, convicting the accused-petitioner (herein referred as 'the petitioners') under Sections 279/304-A IPC and sentencing him to undergo rigorous imprisonment for one year and fine of Rs.200/- under Section 304-A IPC and rigorous imprisonment for six months and fine of Rs.200/- under Section 279 IPC. The factual matrix of the case is that on 15.12.2001, Beli Ram complainant along with his wife Lajwanti was present on the dividing road of Sector 27/30, Chandigarh, in the meantime, the petitioner while driving a Haryana Roadways bus bearing registration No.HR-56-0540 rashly and negligently came from the side of the chowk of Sector 19, 20, 27, 30 and struck against Lajwanti resultantly she died at the spot. On trial, the petitioner was convicted and his appeal also failed. Arguments heard. Crl. Revision No. 124 of 2008 (O&M) -2- *** The case is based on the testimony of two witnesses i.e. complainant Beli Ram (PW2) (husband of the deceased) and Phoolan Bai (PW3). Both these witnesses have not supported the prosecution case. The complainant, though in his examination in chief, has stated that the accused was driving the bus rashly and negligently, yet, during cross examination, he did not withstand the test. He deposed that he does not know as to who was driving the bus in question. He was nervous, therefore, he cannot say that the petitioner was driving the bus or not. He also did not show the place of accident to the police and also denied if the petitioner was driving the bus rashly and negligently. He also deposed that when he was calling rickshaw, he heard the sound of accident and when he looked around then his wife was lying on the road. At that time he was about 10-15 yards away from the place of accident. All this creates doubt over the identity of the petitioner being the driver of the offending vehicle. As such, no reliance could be placed on his testimony. Similarly, Phoolan Bai (PW3) has deposed that no accident had occurred on the date of occurrence in her presence, as such her testimony is also of no consequences. Any way, if for the sake of arguments, it is presumed that the complainant had identified the petitioner driving the bus in question, yet, he has no where stated that the bus was being driven by him rashly and negligently, rather he has denied the suggestion that the petitioner was driving the bus rashly or negligently. The golden thread running through the offence is the proof of “rash and negligent act” which could entail his conviction, but in the absence of proof of the same, the petitioner was entitled to benefit of doubt. Crl. Revision No. 124 of 2008 (O&M) -3- *** From the conspectus of the entire evidence, I am of the confirmed opinion that the prosecution has failed to establish that the petitioner was driving the bus rashly and negligently and thereby committed an offence punishable under Sections 279/304-A IPC. The aforesaid facts were not taken note of by both the courts below and the judgment appears to has been passed on misreading of evidence which has resulted into miscarriage of justice. For the foregoing reasons while recalling the earlier order, I accept the petition, set aside the impugned judgment, acquit the accused- petitioner of the charges framed against him and direct that he be set at liberty forthwith. Fine, if any deposited by him, be refunded. February 17, 2009 (A.N. Jindal) deepak Judge