Delhi District Court
Rajender vs The State ( Govt Of Nct Delhi ) on 28 March, 2008
1
IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE
NEW DELHI
CA No. 13/2007
Rajender
son of Sh Shyam Lal,
R/o 7/133, Dakshin Puri,
New Delhi.
Appellant
Vs.
The State ( Govt of NCT Delhi )
Respondent
JUDGMENT
This appeal is directed against the judgment of conviction under sections 279/304-A IPC dated 6/2/2007 and order on sentence dated 15/2/2007 by which the appellant/convict/accused was sentenced to undergo simple imprisonment for one year under section 304-A IPC and was further sentenced to pay a fine of Rs.1000/- under section 279 IPC and in default of payment of fine to undergo simple imprisonment for 15 days.
2. The brief facts of the case are that after being challaned for the offences under sections 279/304A IPC by SHO Ambedkar Nagar by alleging that the appellant on 28/9/1995 at 2 10 a.m. at Bus Stop Ratia Marg, M B Road accused while driving bus no. DL1P 4667 in a manner so rash and negligent as is endanger human life and personal safety of others caused accident with Panchi and caused his death not amounting to culpable homicide. The learned trial court gave the notice for the said offences to the appellant/convict, as required under section 251 Cr. P.C. to which the appellant/convict pleaded not guilty and so faced trial. As many as nine witnesses PW1 V Sagar, PW2 HC Kirpal Singh, PW3 W/ ASI Sunil Yadav, PW4 Ct Ved Prakash, PW5 Ct Bhuvan Chand, PW6 Ram Kishan, PW7 Ram Khilar, PW8 SI Anoop Singh and PW9 ASI Devender Kumar. Thereafter, the statement of the appellant/convict/accused under section 313C Cr. P.C was recorded in which he denied the prosecution case in toto. The appellant/convict did not lead any evidence before learned trial court.
3. After hearing the arguments and considering the written arguments filed on behalf of appellant the learned trial court passed the said orders of conviction and sentence which are under challenge in this appeal.
4. The main arguments addressed on behalf of appellant are that the deceased/passenger got down from the bus in question from the back door and due to his negligence hit with a standing rickshaw and got injured himself and later died for no fault of the appellant/convict.
35. It is argued that the only eyewitness PW6 the elder brother of the deceased has not identified the appellant/convict/accused in his examination-in-chief and was hostile on this aspect and was cross-examined by learned Assistant Public Prosecutor. So, identity of the appellant/convict as the bus driver is not established. It is also argued that in the complaint to the police, PW6 has stated that they got down from the bus from the rear door but in the statement before learned trial court he has stated that he alighted from the bus from the front door and his deceased brother was also getting out of the bus from the front door. Therefore, the prosecution has failed to prove its case against the appellant/accused. Reliance is placed upon the following authorities: --
(1) Sudalaimuthu Vs. State 1997 Cri.L.J. 1038 (MADRAS HIGHT COURT) (2) State of Karnataka Vs. Satish 1998 Supreme Court Cases (Cri) 1508 (3) Arulandam and another Vs. State II (1990) ACC 264 MADRAS HIGH COURT (4) S.N. Hussain Vs. State of Andhra Pradesh 1972 Cri.L.J. 496 (5) Abdul Subhan Vs. State (NCT of Delhi) 2006 (3) JCC 1797
6. The alternative arguments of the learned counsel for the appellant are that the appellant if found guilty and if the impugned judgment and order on sentence of the learned trial court is confirmed then the appellant may be released on probation. Reliance is placed upon the following authorities: --
(1) Sishan Singh Vs. State of Delhi 1997 JCC 327 (2) Paramjit Singh Vs. State of Punjab 1980 CLJ (Criminal) 4 PUNJAB AND HARYANA HIGH COURT (3) Ravinder @ Ravi and another Vs. The State 2001 (1) JCC ( Delhi ) 14 (4) Sadhu Ram Vs. The State of Haryana 1983 (1) C.L.R. 420
7. On behalf of the state the learned Additional Public Prosecutor has argued that the prosecution by leading evidence before learned trial court has proved the death of the deceased as a result of the rashness and negligence of the appellant in driving the Blue line bus in question and the eyewitness PW6 has proved the identity of the appellant/accused in the cross- examination conducted on behalf of the prosecution. It is also argued that the Learned trial court rightly convicted the accused for the said offences and the order of sentence passed is also justified and the appellant is a person who was not entitled to the leniency and benefit the probation as after the accident he ran away from the spot.
8. I have heard the learned counsel for the appellant and the Learned Additional Public Prosecutor for the State and have gone through the trial court record, the relevant provisions of law and the authorities cited on behalf of the appellant, carefully.
9. It is true that PW6 in examination-in-chief before learned trial court stated that he could not identify the driver of the offending vehicle bus No. D L- IP- 4667 but just before this 5 statement in the examination-in-chief he had stated that the accused driver was driving the bus negligently. In the cross- examination conducted by the Learned Assistant Public Prosecutor this witness stated that it was correct that the accused present in the court on that day was driving the offending vehicle on route No. 429, bus were DL-IP- 4667, on 28/9/1995. Therefore, reading the statement of the PW6 as a whole and also keeping in view the fact that the statement of PW6 was recorded in the learned trial court after about 5 1/2 years of the accident in question, it can fairly be concluded that he has correctly identified the appellant/convict/accused as the person who was driving the bus in question at the time of the said incident, particularly when there is nothing on record to suggest that there was enmity between PW6 and the appellant on any count which may lead to inference that the appellant is falsely implicated at his instance.
10. The question arises whether the bus in question was being driven by the accused rashly and/or negligently at the time of the said incident. As rightly pointed by learned counsel for the appellant there is contradiction between statement of PW 6 made before learned trial court and in his complaint to the police as in the latter he has stated that he got down from the bus from the rear door and his brother Panchi was getting down and his one foot was on the footsteps when suddenly the accused drove the bus as a result of which he fell down and got injured. Therefore, the statement of PW6 made before learned trial court 6 that he alighted from the bus from the front door and the deceased was also getting down from the front door cannot be believed. But this in itself does not absolve the appellant/convict/accused from the offences alleged. When the bus, stops at the bus stop it is the duty of the conductor of the bus and the driver both to keep the bus stationery till all the passengers get out of the bus and only after confirming this fact, the bus should move forward. The fact that the deceased Panchi was alighting from the bus from the rear door though shows that he was getting down from the bus not from the front door as is done normally and was guilty from making a departure from this normal practice followed by the bus passengers. There may be variety of reasons for it. It may be that the bus was over crowded and the deceased Panchi who was at the rear of the bus could not conveniently go to front door to get down from the bus. It may also be that he deliberately avoided going to front door and has chosen to get out of the bus from back door. However,there is no convincing evidence showing the reason why deceased did not get down from the front door. But at the same time the appellant was negligent by moving the bus forward without ensuring that all passengers have got down. The statement of PW6 made in Examination-in-chief is that before his brother Panchi got down from the bus the bus driver suddenly started the bus and his brother fell down and sustained injuries. In the cross-examination he stated that when he got down from the bus the bus had stopped but he asked the driver to stop the bus so that his brother could get down, however, the 7 driver drove away the bus. His brother fell down and the driver drove away the bus. Therefore, the negligence of the accused is established as instead of waiting so that the deceased Panchi gets down from the bus he drove the bus which led to falling down of the deceased Panchi leading to injuries and his death. Therefore, learned trial court correctly appreciated the facts and convicted the appellant/accused for the offence under section 304 A IPC.
11. In Sudalaimuthu's case (supra) the deceased came under the wheels of the bus while alighting from the bus and there was evidence that the deceased alighted from the bus despite blowing of whistle by the conductor and despite starting of the bus and there was clear evidence that the bus was stopped immediately at the spot itself. But in the present case there is no evidence that the conductor had blown the whistle while the deceased Panchi was alighting from the bus. There is also no evidence that the appellant/accused stopped the bus immediately at the spot itself and rather the evidence of PW6 shows that he ran away from the spot which fact also points towards guilt of the appellant/accused. Therefore, Sudalaimuthu's case (supra) is distinguishable on facts and is inapplicable to the present case.
12. Satish's case (supra) also relied on behalf of appellant pertains to a case in which the truck being driven by the accused turned turtle resulting to death of 15 passengers and 8 injuries to 18 persons. The facts of the said case are entirely distinguishable from the present case so Satish's case (supra) also does not have the appellant. In Arulandam's case (supra) there was contradiction between the medical and ocular evidence which is not the case here so Arulandam's case (supra) also does not help the appellant. In S.N. Hussain's case (supra) there was collusion between the bus and goods train at level crossing. The facts of the said case are nowhere near the facts of the present case so S.N. Hussain's case (supra) also does not help the appellant. In Abdul Subhan's case (supra) also relied upon by Learned Counsel for the appellant there was a collision between the bus and a motorcycle in which the motorcyclist died, this is also distinguishable on facts and not applicable to the present case. The reliance upon this case is placed due to findings that high- speed by itself is not sufficient to hold that the vehicle was being driven in a rash or negligent manner. In the present case there is no question of high-speed at the time of incident as the bus had just started while the deceased Panchi was alighting from it so in the present case the guilt of the accused is not established on account of any rash driving but due to his negligence in moving the bus without ensuring that the passengers have alighted from bus. Therefore, Abdul Subhan's case (supra) also does not help the appellant.
13. One technical question arises whether conviction and sentence both under section 279 and section 304 A IPC is 9 permissible under the law as the latter section is the aggravated form of the former section. If a person is guilty of an offence under s 279, IPC, and death is also caused as a result of the negligent act, he will be guilty of the offence under s 304A, IPC, because an offence under this section is a minor offence which is included in s 304A, IPC. (See Esco Mathew v State of Kerala 1967 Ker LJ 227). An accused, convicted under s 304A, IPC, therefore, cannot be convicted under this section as the latter is a minor offence. (Shiva Ram v State 1965 All 196, (1965) 1 Cr LJ 524; Ranjit Singh v State of Haryana 1988 Chand Cr Cases 516(P&H).) IPC. Our Delhi High Court has also taken a similar view and it was held that there was no need to impose any separate sentence for minor sentence under sections 279 because the offence under sections 304A and 338, IPC, are similar offence in aggravated forms. Thus the sentence imposed under section 279 was set aside (See Abdul Hameed v State (1990) 41 DLT 306, 307; Hamid Khan v State 1996 (1) Crimes 465 (Del).. Therefore,where a person is convicted and sentenced under section 304A IPC a separate conviction under s 279, for the minor offence which is included in the offence under s 304-A, is not justified. (See, Shiv Ram versus State AIR 1965All 196). In the light of these authorities the conviction in the sentence imposed upon the appellant/convict/accused by the learned trial court for the offence under section 279 IPC are liable to be set aside.
14. In the light of the above discussion, I hold that the learned 10 trial court correctly appreciated the facts and the law and rightly convicted the accused for the offence under section 304-A IPC. However, for the foregoing reasons the conviction and sentence passed upon the accused for the offence under section 279 IPC are liable to set aside and hereby done so.
15. The question arises whether the appellant/convict is entitled to be released on probation. In Rattan Singh v State of Punjab, (AIR 1980 SC 84, 1980 Cr LJ 11 (SC); the Hon'ble Supreme Court held that the benefit of probation cannot be extended in a case where the accused was convicted for the offence under s 304-A, IPC. Relying upon Rattan Singh's case, the Rajasthan High in Narader Singh v State of Rajasthan 1997 Cr LJ 4353 (Raj); Ganpat Singh v State of Rajasthan 1998 Cr LJ 716 (Raj) declined the benefit of probation to the accused Convicted under s 304-A, IPC .(see also Bansilal Babuji Vanjara v State of Gujarat 2007 Cr LJ 2879 (Guj); Narender Singh v. State 2005 Cr LJ 2735 (Del); Suresh Kumar v State (1998) 3 Chand Cr C 52; Munna Khan v. State of MP 2004 Cr LJ 525 (Chattisgarh); Bharat Pandharinath More v. State of Maharashtra 2004 Cr LJ 205 (Bom).).In the case of Dalbir Singh v. State of Haryana, 2000 Cr LJ 2283, AIR 2000 SC 1677. it is clearly held by the Hon'ble Supreme court that Section 4 of the Probation of Offenders Act, 1958 cannot be made applicable for the offence under Section 304-A, IPC where the accused is convicted. Therefore, in the light of dictum of Hon'ble Supreme Court in Dalbir Singh's case (supra), Rattan Singh's case 11 (supra), Sishan Singh's case (supra), Paramjit Singh's case (supra), Ravinder @ Ravi 's case (supra) and Sadhu Ram's case (supra) relied on behalf of the appellant do not come to the rescue of the appellant.
16. In view of the above discussion the order of conviction and sentence of the appellant/convict/accused under section 279 IPC are set aside. Conviction of appellant/convict/accused by the Learned trial court under section 304A IPC is upheld. On the question of sentence since there is possibility of the negligence on the part of deceased Panchi also who instead of getting down from the front door was alighting from the rear door, this fact is a mitigating circumstances in favour of the appellant on the question of sentence. Therefore, the sentence of imprisonment awarded to the appellant/convict/accused by the learned trial court i.e One Year SI for the offence under section 304 A IPC is reduced to Six Months SI with payment of fine of Rs 1,000/-. Fine is already paid by the appellant/convict/accused for the offence under section 279 IPC before the learned trial court which shall be adjusted against the fine imposed today under section 304 A IPC. The appeal petition is disposed off accordingly. The trial court record be returned along with the copy of this order. The appeal file be consigned to the record room.
(S. K. SARVARIA) Additional Sessions Judge New Delhi Announced in the open court on 28th day of March, 2008