Delhi District Court
Liyakat Ali vs The State ( Nct Of Delhi) on 14 July, 2010
Page No. 1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution: 28.08.2008
Date of judgment reserved on : 06.07.2010
Date of decision : 14.07.2010
Criminal Appeal No. 088/2008
IN THE MATTER OF :
Liyakat Ali
S/o Dhumman
R/o V & PO : Niwara Goripuri,
Police Station Bagpat,
Distt. Meerut, UP. .... Appellant
Versus
The STATE ( NCT of Delhi) .... Respondent
JUDGEMENT:-
Accused Liyakat Ali has been convicted for offences under section 279 / 337 IPC in a conviction judgment dt. 17.07.2008 and has been awarded sentence of three months RI with fine of Rs. 1000/-, ID to undergo one month RI u/s. 279 IPC and a further sentence to undergo RI for four months and a fine of Rs. 5000/-, ID to undergo RI for one month u/s. 337 IPC.
He has challenged this conviction and sentence in the present appeal. According to prosecution case on 5.4.1997 at around 5.45 am on the ring road, Safdarjung Hospital crossing within the jurisdiction of Police Station K. M. Pur , accused was driving truck bearing registration no. DL-IG-8076 in a rash and Page No. 2 negligence manner to endanger human life and by such rash and negligence driving he sturck his truck against a car bearing registration no. DAC-4447 wherein the car / driver of the car Ms. Sujata suffered injuries and her vehicle was badly damaged.
Victim / complainant Mr. Sujata was cited the sole prosecution witness to depose on the factum of the incident and when she was examined before trial court as PW-6 she deposed that on the date of incident she set out from her house situated in Bishamber Dass Marg, New Delhi and was driving her car and was going towards Saket, New Delhi. At around 5.45 AM, she reached Safdarjung Hospital crossing and while it was green light signal on that crossing , she proceeded to cross it but then the offending truck bearing no. 8076 came from Lajpat Nagar side and it was being driven in a very high speed and it jumped red light and hit against car of the victim. Car was badly damaged and victim sustained injuries. Driver of the truck ran away from the spot leaving the truck behind on the spot . She identified accused as the driver of the truck as the driver had come to her after this incident but then on seeing people gathering he ran away.
Defence put to witness in the cross examination is that in fact accused was driving his vehicle in a normal speed and in a normal way and cause of accident was rather fault on the part of the victim / complainant. She was driving her car in a high speed.
Another material witness examined by prosecution in this trial was IO PW-7 besides deposing the fact situation as found by him on the place of accident and he having seized both the vehicle involved in this accident through seizure memo of these vehicles Page No. 3 and having recorded damage as found in the vehicle in those seizure memo, he also proved the site plan Ex. PW-7/B. The damage in the vehicle as recorded in the seizure memo Ex PW-7/B in respect of th e car were :
1. Front and rear mirror found broken, entire car body found damaged.
2. Front battery radiator and bumper broken and engine turned dented.
Damages in the vehicle truck in the seizure memo Ex. PW-3/A were the oil tank of the truck found damaged, front wind screen glass broken and right side cabin broken.
Ld. MM on the basis of the evidence of the victim and further incriminating material on record , held that accident occurred due to rash and negligence driving on the part of the appellant and accordingly convicted and sentenced accused.
Defence counsel in this appeal argued that testimony of the victim / complainant, she being an interested witness, should not have been taken a base to hold accused guilty of rash and negligence driving. Pointing out from the damage as found on the vehicle, counsel submitted that complainant evidence did not get support from this circumstance. Counsel argued that if front and rear wind screen glass of the car were broken then it could be a situation wherein car struck against the truck instead of the car being hit on its left side when the truck came from the left side of the car on that crossing. Counsel further argued that according to prosecution, photographs of the place of accident were got recorded Page No. 4 by IO but those photographs have not been brought on the record. There was no reason to not to accept and believe the defence put to the victim in her cross examination & then supported by defence witness. Counsel pointed out the explanation put up by accused during his examination under section 313 CrPC wherein accused explained that he was driving the vehicle in a normal speed and in a proper manner and the accident was entirely on account of fault and mistake on the part of the car driver. She hit against truck of accused and the car over turned on its driver side.
Ld. Addl. PP , on the other hand submitted that except the defence put up in the cross examination of complainant / victim in the form of suggestion, there is no other evidence or material to s upport this defence. It is argued that driving a heavy vehicle while entering the traffic signal crossing, a reasonable caution expected on the part of the accused was to drive his truck in a very reasonable slow speed and accordingly the conviction suffers no illegality when accused failed to observe that caution. I have appreciated these contentions and arguments.
There appears no just reason and ground to interfere in the finding of conviction recorded by Ld. MM. Evidence of the victim - complainant Ms. Sujata showed that she while proceedings towards Saket on the ring road at Safdarjung crossing traffic signal she proceeded to pass through that crossing when it was green light signal for her. This testimony of the witness has not been challanged or questioned in her cross examination She deposed that truck driven by accused was in a high speed and in the cross examination she described the speed of 80 to 90 KMPH. A suggestion then alone is given to the witness that ruck was being driven in a normal slow speed, there is no other material to Page No. 5 support it. Site plan showed that while passing through this traffic signal crossing, the complainant had covered almost more than half of this crossing signal and then that truck coming from left side of the car of the complainant hit the car. Damage on the vehicle as recorded in the seizure memo of the vehicles does not suggest any theory contrary to what the complainant has deposed in her evidence. More over accused explained in his 313 CrPC statement that car overturned on its driver side. The car would overturn towards driver side when it is hit on its left side and that supports the testimony of the complainant. Accordingly the prosecution case is found duly proved that victim complainant while proceeded to pass through this traffic signal on the crossing while it was green signal for her, accused came driving his truck jumped red light signal and it was early morning hours i.e., 5.45 am when the truck driven by accused hit the car of the complainant, it was a rash and negligence driving on the part of the accused. In the given circumstance , while entering the traffic signal crossing, accused ought to have been careful in keeping speed of his vehicle in control. Non observance of this reasonable care in driving his vehicle has resulted in this accident. The intensity of damage found in the car of the complainant further speaks of the intensity of the impact and that was as a consequence of the speed of the truck driven by accused. Conviction of accused for offence u/s. 279 and 337 IPC accordingly suffers no infirmity or illegality and is liable to be upheld.
On the point of sentence Ld. defence counsel prays for some leniency and submitted that accident having occurred in the year 1997 and accused having faced trial agony for 13 years now and offence being only u/s. 337 IPC, substantive sentence was not Page No. 6 called for and a benefit of probation was prayed by Ld. Counsel for accused - appellant suggesting further that court could award some reasonable amount as a compensation to the victim - complainant, that too considering the economic status of the appellant. On the other hand, Ld. Addl. PP argued that trial court has already shown leniency in the sentence and considering the seriousness of the accident which is reflected from the extent of the damage caused to the maruti car of the complainant, no interfere was called for on the point of sentence also. I have considered these arguments.
Accused - appellant has not been alleged or proved to be a previous convict or involved in any other criminal case. Accused himself pointed out that he had a very long career as a driver as presently he was around 50 years of age but then the accident in the present case was unfortunate happening and he was a poor persons , the only bread earner for his family.
Ld. MM dismissed plea of the appellant for leniency by relying upon a Supreme Court judgment reported as 2000 II AD 666 , wherein it came to be observed that automobile were became death trap and leniency if shown to such accused - driver of the vehicle it may lead to risk of further escalation of road accident.
Increase in the rate of accident has to be a relevant factor to be kept in mind by the courts while considering a sentence for the offence of rash and negligence driving. But then fact of each case will have to determine the gravity of the offence and the extent of punishment called for. In the present case though accused driving a heavy transport vehicle caused accident against a maruti Page No. 7 car and the car was badly damaged but then driver of the car occupant suffered only simple injury suggesting that the extent and the gravity of the negligence on the part of the accused was not so heavy which required a very severe view on the sentence. Accused has faced trial for 13 years and there is no earlier involvement or conviction in any other case. I do agree with the submission of defence counsel that substantive sentence awarded by the trial court may not serve any fruitful purpose but then we have still to consider the mental trauma which victim complainant might have undergone besides her vehicle damaged badly. Accordingly while considering the benefit of probation for accused, I find that it should be conditional to the accused paying certain compensation to the victim - complainant. Accordingly this sentence awarded to appellant - accused in this case is modified and accused is granted probation benefit under section 360 CrPC but then subject to accused - appellant to deposit Rs. 25000/- which shall be paid to the complainant - victim Ms. Sujata as compensation in terms of section 357 ( 3) CrPC and then to execute a bond in the sum of Rs. 25000/- with one surety of peace and good behaviour for a period of two years, further undertaking thereby to receive sentence in this case if the condition of the bond is violated and breached. Accused - appellant is granted one month time to deposit this amount of Rs. 25000/-. Failure to compliance this condition shall be deemed withdrawal of the probation benefit to the accused - appellant and sentence awarded by the trial court shall be treated to come into force.
Announced in the Open (J. R. ARYAN) court on 14/07/2010. ADDITIONAL SESSIONS JUDGE NEW DELHI.
Page No. 8Liyakat Ali Vs. State CA No. 088/2008 14.7.2010 Present : Ld. Addl. PP for State.
Accused on bail and present with Ld. defence counsel.
Vide separate judgment , appeal has been decided, dismissed on merits but sentence has been modified whereby appellant has been given probation benefit but with a pre condition that he will deposit Rs. 25000/- to be paid as a compensation to the victim complainant . Appellant has been granted one month time to deposit this compensation amount and then to execute probation bond in the sum of Rs. 25000/- with one surety for the period of two years.
In the eventuality of non depositing of the compensation amount, the sentence awarded by trial court shall be deemed to come in force. Accordingly the file be put up on 13.8.2010 or on the earlier date when accused deposits this compensation amount.
ASJ/ New Delhi 14.7.2010